1 . The Palm Springs City Council's commitment to fundraising for the restoration of the Plaza Theater, including the formation of a Fundraising Steering Committee in order to facilitate fundraising efforts; and
2. The Palm Springs City Council's dedication to The Palm Springs International Film Festival for use of the Plaza Theater, during the period of the annual Film Festival during the first two weeks of each January, upon completion of its restoration.
ADOPTED THIS 5TH DAY OF JUNE, 2019.
DavidH . Re:«~
City Manager
ATTEST:
~- ~ Anthony iµejl, - ..,...-
City Clerk
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS)
I, ANTHONY J. MEJIA, City Clerk of the City of Palm Springs, hereby certify that Resolution No. 24614 is a full, true and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on the 5th day of June, 2019, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Councilmembers Holstege, Middleton, Roberts, Mayor Pro Tern Kors, and Mayor Moon
None
None
None
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Palm Springs, California, this 'Z'-4"'- day of ::J..., t 4 , ,Zo , ~ ·
ATTACHMENT 3
Item 1T - Page 14
Item 1T - Page 15
DocuSign Envelope ID: 6ADDF555-A721-41A6-9359 -A106883132E2
MEMORANDUM OF UNDERSTANDING
BETWEEN
THE PALM SPRINGS PLAZA THEATRE FOUNDATION
AND
THE CITY OF PALM SPRINGS
This Memorandum of Understanding ("MOU"), by and between the City of Palm Springs (the "City"), and The Palm Springs Plaza Theatre Foundation (the "Foundation"), and together known as the "Parties," establishes a framework for a sustainable partnership between the Parties in order for mutual support to continue and prosper. This MOU shall be effective on the date ("Effective Date") that it is signed by both Parties, following any legally required approval by the governing bodies of the Parties.
RECITALS
WHEREAS, the City is a charter city and California municipal corporation; WHEREAS, the City is the owner of the historic Plaza Theatre, located at 128 South Palm Canyon Drive, Palm Springs California (the "Plaza Theatre"); WHEREAS, the City acquired the Plaza Theatre from the former Palm Springs Community Redevelopment Agency, with the understanding that the City will assume the financial responsibility of the renovations after the acquisition and that the City will secure a new operator with conditions that the Plaza Theatre will be maintained as a historic structure and performing arts venue;
WHEREAS, the Foundation was established as a nonprofit public benefit corporation in the State of California on October 21, 2021;
WHEREAS, the Foundation was created to raise funds to support the historic restoration, operation and ongoing maintenance of the Plaza Theatre; WHEREAS, the Foundation intends to solicit donations for the Plaza Theatre from individuals, organizations and corporations and recommend to the City that the Plaza Theatre and individual Plaza Theatre amenities be named for specific donors depending on the amount donated;
WHEREAS, the Foundation intends to use the donations received, over and above those necessary to restore the Plaza Theatre, to fund an endowment, the income from which will be used to support the Plaza Theatre's operation and maintenance of the Plaza Theatre; WHEREAS, the Parties desire to enter this memorandum of understanding, to ensure the historic restoration, operation and ongoing maintenance of the Plaza Theatre and define the responsibilities of the Parties to each other in accomplishing this purpose. 55575.18100\34490711.l
Item 1T - Page 16
DocuSign Envelope ID: 6ADDF555-A721-41A6-9359-A1D6883132E2
AGREEMENT
Now, therefore, in consideration of the above, both Parties agree to:
• Foster a strong and cooperative relationship through regular coordination of the Foundation's and the City's plans, budgets, resources, events, and programs and make timely decisions on said matters.
• Publicize the community benefits associated with the historic restoration, operation and ongoing maintenance of the Plaza Theatre.
• Conduct all financial affairs with transparency.
• Document and/or coordinate mutually agreed upon items and share helpful or pertinent information.
• Comply with all federal, state, and local laws and regulations.
In consideration of the Foundation's voluntary contributions to the Plaza Theatre (i.e. services and/or donations), and City's contributions to defray the costs of starting the Foundation and in recognition of the Foundation's contributions, the Parties agree as follows:
I. OBLIGATIONS OF THE CITY
a. Governance/ Administration
1. Grant the Foundation permission to use the name, likeness and logo of the City (and the Theatre, if developed) for uses that support the Plaza Theatre mission, programs, and objectives.
11. Recognize the Foundation as a separate, legal entity. b. Coordination
1. Assign a Plaza Theatre Liaison to the Foundation as the primary point of contact to coordinate, communicate, and meet regularly to discuss the plans and needs of the Plaza Theatre and the Foundation.
11. Provide support for mutually agreed upon Foundation programs, budgets, projects, fundraising activities, and/or reports. 111. Provide staff consulting and technical assistance for mutually agreed upon improvement programs and projects whenever possible. 1v. Assist Foundation's coordination with other agencies, as needed. v. Hold a regular meeting, at a minimum annually, between the City Manager and the Foundation to discuss matters mutually agreed upon between the City and the Foundation.
c. Finances
1. Provide, at least annually, reports on the Foundation's donations to the City.
2 55575.18100\3449071 l.1
Item 1T - Page 17
DocuSign Envelope ID: 6ADDF555-A721-41A6-9359 -A106883132E2
11. Provide annual reports on the City's expenditure of the Foundation's donations to the Plaza Theatre.
111. Any funds provided to the City under this MOU shall be used solely to fund the historic restoration, operation and ongoing maintenance of the Plaza Theatre.
d. Maintenance Standards
1. Except as may be set forth in one or more Facility Use Agreements, the City shall be solely responsible for maintaining the Plaza Theatre in good condition, substantial repair, in a safe, clean and sanitary condition, and in compliance with all rules, regulations, ordinances, or laws. e. Services offered to Foundation
1. Provide space at the Theatre, as well as program and maintenance support for activities and other Plaza Theatre improvement projects, to include meeting, program, fundraising, and event space at mutually agreed upon times at the Plaza Theatre. To the extent the Theatre is used, either by Foundation itself (i.e., for meetings or events), or by third parties (i.e., for fundraising events), any such use shall be subject to a Facility Use Agreement, in a form approved by the City Attorney and City Manager.
11. Promote the Foundation's presence and programs, as permitted. 111. Publicly recognize the work, contributions, services, and/or donations received directly or indirectly from the Foundation.
1v. The City will coordinate with the Foundation to erect and/or install signage and other Plaza Theatre Elements (as defined in paragraph III.a, below) at the Plaza Theatre. The approval, permitting and display of such signage and other monuments shall be subject to the City's laws and regulations. Foundation will pay for the signage and other monuments and City shall provide personnel to assist in erecting and or install the signage and other monuments at the Plaza Theatre.
v. Transfer of Existing Donations. In addition to the amounts set forth in Subsections vi. through vii. below, upon the full execution of this MOU by the Parties, the City shall transfer to the Foundation the funds that are existing within the City's Plaza Theatre donation fund, currently One Hundred Sixty Five Thousand One Hundred Dollars ($165,100). Such amounts may be used by the Foundation for any purpose that is consistent with the Foundation's corporate purposes.
v1. Start-up contribution. The City will appropriate Seventy Five Thousand ($75,000), in the City's Fiscal Year 2021/22 budget, to the Foundation for the start-up costs of starting the Foundation, including costs associated with incorporation, non-profit and tax deductible registration, communications, fundraising efforts, etc.
vu. Start-up assistance. The City will provide the Foundation with legal assistance involved in incorporating and registering with the Internal 3 55575.18100\34490711.1
Item 1T - Page 18
DocuSign Envelope ID: 6ADDF555-A721-41A6-9359 -A106883132E2 Revenue Service (IRS) and California Franchise Tax Board (FTB) as a non-profit organization.
v111. Ongoing Contributions. Subject to appropriation by the City Council, the City shall contribute an annual amount of Fifty Thousand Dollars ($50,000) for the ongoing support of the Foundation, for a period of no less than four (4) additional years (City's Fiscal Years 22/23, 23/24, 24/25, and 25/26).
II. OBLIGATIONS OF THE FOUNDATION
a. Governance/ Administration
1. Register with the Internal Revenue Service (IRS) and California Franchise Tax Board (FTB) as a non-profit organization, and maintain such status.
11. Meet federal, state and local charitable solicitation requirements, if the Foundation solicits funds.
111. Obtain and maintain any necessary permits, licenses, special insurance, equipment, and inspections for Foundation programs, activities, or events and pay associated costs or fees, if any.
1v. Authorize the City to use the name and logo of the Foundation to promote the Foundation and its activities.
v. Upon dissolution, donate any remaining funds pursuant to the terms of the Foundation's Articles oflncorporation and Bylaws.
b. Coordination
1. Work with the Plaza Theatre Liaison to coordinate on Plaza Theatre plans, programs, needs, and projects.
11. Coordinate fundraising activities on Plaza Theatre property with the Site/Program Liaison.
111. The Foundation shall provide an annual statement to the City showing all donations, disbursements and funds held. This statement shall be provided to the City on February 1 of each year. Foundation shall provide any financial records requested by the City within 30 days following such request.
c. Finances
1. Comply with all IRS and FTB non-profit requirements to remain in good standing.
11. Donate interest on the funds to the City to support the operation and ongoing maintenance of the Plaza Theatre.
111. Donate specific, individual donations for the purchase and/or design and construction of Plaza Theatre features, as set forth in paragraph IV, below.
4 55575.18100\34490711.1
Item 1T - Page 19
DocuSign Envelope ID: 6ADDF555-A721-41A6-9359 -A106883132E2 III. NAMING RIGHTS FOR SPECIFIC PLAZA THEATRE AND ITS ELEMENTS a. Right to Issue Naming Rights. The Parties acknowledge and agree that the Foundation will be better able to support the renovation and continued operation and long-term maintenance of the Plaza Theatre if it is able to raise funds through the issuance of naming rights for the Plaza Theatre and its component parts ("Naming Rights Opportunities"). Examples of potential Naming Rights Opportunities include, but are not limited to, the Theatre itself, the lobby, the seats, stage, entry patio, (the "Plaza Theatre Elements"). To the extent permitted by law, and subject to the City's prior approval, as set forth in paragraph (c), below, the Foundation shall have the right to issue Naming Rights Opportunities to the Plaza Theatre and the Plaza Theatre Elements.
b. Term of Naming Right. The name will be affiliated with the Plaza Theatre Element for the useful life of the Plaza Theatre Element. If the Plaza Theatre Element must be replaced or substantially repaired, it may be renamed for a new donor. The Foundation's successors in interest or assigns shall assume the rights and obligations of this MOU. The Naming Rights Opportunity may be terminated under the following circumstances:
i. Foundation and the City shall each individually retain the right to rescind the naming rights if, in their sole discretion, it is determined that (i) a previously approved name has become inappropriate due to subsequent criminal acts or acts of moral turpitude of the Donor or the person or entity honored by the issuance of the naming rights, (ii) a Donor has failed to meet its financial obligations relating to a pledged donation, or (iii) any other factor relating to the Donor, the honoree, or the donation has arisen that would discredit the Foundation, the Plaza Theatre, or the City and/or is contrary to the City's interests. c. City's Prior Approval. Prior to issuing any Naming Rights Opportunity, the Foundation shall obtain the City's written approval of the Naming Rights Opportunity, including as applicable, the proposed location, size, type of opportunity, any required signage/installation, expected donation amount, and the donor's name. The City shall have thirty (30) calendar days to review and approve or deny any proposed Naming Rights Opportunity. i. The City's City Manager has the authority to approve or disapprove a proposed Naming Rights Opportunity up to $100,000.
ii. Naming Rights Opportunities in excess of $100,000 shall require specific approval by the City's City Council.
111. The Foundation shall not be required to obtain City approval for dedication plaques, engraved tiles or bricks or donor walls. Such features shall be consistent with the design and functionality of the Plaza Theatre. d. Proceeds from Naming Rights. Other than reasonable Foundation operating expenses, the Foundation will use all donations it receives for the benefit of the Plaza Theatre, including the historic restoration, operation and ongoing maintenance of the Plaza Theatre. In 5 55575.18100\34490711.1
Item 1T - Page 20
DocuSign Envelope ID: 6ADDF555-A721-41A6-9359-A1D6883132E2 the event the Foundation is dissolved, all Foundation assets will be distributed pursuant to Article VI of the Articles oflncorporation of The Palm Springs Plaza Theatre Foundation. e. Costs. Any direct costs incurred in connection with the issuance of Naming Rights Opportunities shall be assumed and paid entirely by the Foundation or by Donors. As further described below, this includes, without limitation, the cost of signage, plaques, name plates, changes in lighting, and the like, and the cost of any marketing materials or events required to identify and engage prospective donors.
f. No Property Interest. Notwithstanding any provision of this MOU, the Parties do not intend to convey any ownership or other interest in the Plaza Theatre and nothing in this MOU or any donation agreement shall be construed or interpreted as a grant of easement or any other interest in any property, including any portion of the Plaza Theatre. If this MOU or any provisions of this MOU are construed or interpreted by a court of competent jurisdiction as conveying an interest in real property among the Parties, this MOU shall immediately become of no further force or effect, without notice to or action by any Party.
IV. DONATIONS TO FUND PLAZA THEATRE ELEMENTS
a. It is understood that the Foundation shall have the right to solicit donations that are designated by an individual donor (the "Specific Donation"). The Specific Donation can be designated by the individual donor toward the Foundation's endowment or for use towards the purchase and/or design and restoration of the Plaza Theatre, or the construction and installation of any Plaza Theatre Element. The individual donors and any conditions attached to the Specific Donation shall be consistent with the goals, values and objectives of the City and The Palm Springs Plaza Theatre Foundation and.the design and functionality of the Plaza Theatre.
V. DONATION AGREEMENTS
Prior to acceptance of any Donation pursuant to Section III or IV, above, the City, the Foundation and the individual Donor shall separately execute an agreement regarding the terms and conditions attached to the Naming Rights Opportunity or Specific Donation.
VI. INSURANCE
The Foundation will obtain and maintain insurance coverage in amounts and of the types (i.e. general liability and directors and officers) as required by the City's Risk Manager, based on the Foundation's structure and activities.
VII. AMENDMENT, RENEWAL AND TERMINATION
a. The term of this MOU shall commence on the Effective Date and, unless sooner terminated by written agreement of the Parties, shall end on the expiration of ten ( I 0) years following the Effective Date ("the Expiration Date"). Either party may renew this MOU for an additional period of ten (10) years to commence upon the Expiration Date. To exercise this option to renew, a party must deliver to the other party a written notice of its exercise of the option to renew at least sixty (60) days prior to the Expiration Date.
6 55575.18100\34490711.l
Item 1T - Page 21
DocuSign Envelope ID: 6ADDF555-A721-41A6-9359 -A106883132E2 b. Any modifications, assignments, alterations, or extensions must be in writing, signed, and approved by both Parties.
c. This MOU may be terminated by either Party upon 30 days written notice. d. Distribution of Proceeds Upon Expiration of the Term or Termination. At the expiration of the term or in the event of termination, all Foundation assets shall within forty-five ( 45) days be transferred to either the City or to another nonprofit fund, foundation or corporation to be used solely for operation and maintenance of the Plaza Theatre.
VIII. INDEMNITY
a. Each party agrees to indemnify, defend, and hold harmless the other party, its officers, agents and employees from any and all liabilities, claims, or losses of any nature, including reasonable attorneys' fees and costs of suit, to the extent caused by, arising out of, or in connection with, the indemnifying party's negligent or wrongful acts or omissions arising from its respective activities pursuant to this MOU.
IX. DISPUTE RESOLUTION
a. The Parties agree to work together in good faith to resolve disagreements that may arise under this MOU. Should such a disagreement arise, the Parties having authority to resolve the dispute will meet and negotiate in good faith toward a mutually satisfactory solution. If any disagreement cannot be resolved through such negotiations, the Parties will consider other alternative dispute resolution processes upon which they may later agree. However, if at any time a Party determines that circumstances so warrant, such Party may seek any available remedy without waiting to complete the informal meet and confer process.
X. GENERAL PROVISIONS
a. Assignment. Neither Party may assign or transfer all or any portion of its rights or obligations under this MOU to any third party, without obtaining the prior written consent of the other Party, which consent shall not be unreasonably withheld. Any purported assignment, without the other Party's prior written consent, shall be void. b. Binding Effect. This MOU shall be binding on all heirs , successors and assigns of the Foundation and the City.
c. Entire Agreement. This MOU contains the entire agreement and understanding of the Parties on this subject. The City and the Foundation understand, acknowledge and agree that no Party, or any agent or attorney for any Party, has made any promise, representation or warranty of any kind whatsoever, express or implied, not contained herein to induce the execution of this MOU. The City and the Foundation understand, acknowledge and agree that 7 55575.18100\34490711.1
Item 1T - Page 22
DocuSign Envelope ID: 6ADDF555-A721-41A6-9359-A1D6883132E2 this MOU has not been executed in reliance upon any promise, representation, or warranty not contained herein.
d. Applicable Law. This MOU and all rights and obligations arising out of it shall be construed in accordance with the laws of the State of California. Any legal or administrative action arising out of this MOU shall be conducted in Riverside County, California. e. Warranty of Authority. The persons executing this MOU on behalf of the City and the Foundation represent and warrant that they are duly authorized to execute this MOU and to bind their respective Party to all terms and conditions of this MOU. d. Severability. If any section, subsection, sentence, clause or phrase of this MOU, or the application thereof to any of the Parties, is for any reason held invalid or unenforceable, the validity of the remainder of the MOU shall not be affected thereby and may be enforced by the Parties to this MOU.
e. Notices. All notices, demands and communications between the City and the Foundation shall be in writing and shall be given by personal delivery, registered mail (return receipt requested, with postage prepaid), Federal Express, electronic mail, or any other reliable private express delivery service to the following addresses:
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: City Manager
The Palm Springs Plaza Theatre Foundation
3390 University Ave., 5th Floor
Riverside, California 92501
Attn: J.R. Roberts
The foregoing names, addresses may be changed at any time by written notice, as provided above.
f. Interpretation. This MOU has been prepared jointly by the Parties, with full access to legal counsel of their own. No ambiguity shall be resolved against any Party on the premise that it or its attorneys were solely responsible for drafting this MOU or any provision thereof.
g. Counterparts. This MOU may be executed electronically, and in one or more counterparts, each of which shall constitute an original.
IN WITNESS, WHEREOF, the Parties enter into this Memorandum of Understanding as of the Effective Date.
8 55575.18100\3449071 l.l
Item 1T - Page 23
DocuSign Envelope ID: 6ADDF555-A721-41A6-9359-A1D6883132E2 Date:
SIGNATURE PAGE
TO
MEMORANDUM OF UNDERSTANDING
BETWEEN
THE PALM SPRINGS PLAZA THEATRE FOUNDATION
AND
THE CITY OF PALM SPRINGS
CITY OF PALM SPRINGS
DocuSigned by :
By: ttn,So., t~ ·city8~~;{~ge-r-. -------
Date: 11/8/2022 --------
By:-----------
Name: ATTEST: -----------Secretary
DocuSigned by:
Date: --------
APPROVED AS TO FORM:
APPROVED BY CITY COUNCL
D1[J1[J0a, J. rn A205~
DocuSigned by:
By: jt(f b&~
J efr'l~y4"~3{5"g-,-a1_h __ n-g-er ____ _
City Attorney
9 55575.18!00\34490711.1
ATTACHMENT 4
Item 1T - Page 24
Date: 5/3/2022
Palm Springs Plaza Theatre Foundation
1775 E. Palm Canyon Drive
Suite 110-1028
Palm Springs, CA 92264
RE: Agreement for Grant ID #180996
We are pleased to authorize a grant payable to Palm Springs Plaza Theatre Foundation ("Grantee") for the purpose described below. This grant was recommended by David Lee, of the The David Lee Foundation #2 ("Donor"), and is being issued from a Donor Advised of the California Community Foundation ("Foundation"). This grant is subject to your acceptance of the conditions in this grant agreement. To acknowledge your acceptance of this grant and agreement with the conditions specified below, please sign and return a copy of the agreement to the Foundation.
Grant Amount: $5,000,000.00
Grant Purpose: To support the Plaza Theatre restoration, see attached term sheet for details
Payment Schedule: See attached term sheet
Grant Requirements
1) Administration of Funds: This grant is to be used only for the purpose(s) described above and any objectives below and is subject to modification only with the Foundation's prior written approval.
Objectives
N/A
Additional Requirements
See attached term sheet
DocuSign Envelope ID: 81A6AC2B-7626-4BD5-B6AF-D4FEC3791CEF Item 1T - Page 25
California
COMMUNITY
Foundation
2) Reporting Use of Funds:
N/A
Additionally, as a condition of this grant, grantee partner shall promptly notify the Foundation in writing of any significant changes in the organization’s structure, leadership, or financial circumstances that could affect the ability of the grantee to effectively implement the funded activities or general charitable mission of the organization.
3) Payment of Grant: Payment of grants from component funds is subject to the availability of unencumbered fund assets equal to the payment amount. 4) Grant Restrictions: By endorsing, depositing, or cashing disbursement(s) on this grant, you certify that grant payment(s) will:
a. Not provide any goods, services or impermissible benefits to the donor/fund advisor(s) or any individual related to the donor/fund advisor(s) (e.g. tuition, membership benefits, admission to events, goods bought at an auction, religious benefits, etc.) b. Not support any individual(s) designated by the donor/fund advisor(s) c. Not be used to support political campaigns or lobbying activities 5) Recognition of Grant: See attached term sheet
6) Governing Law: This agreement and grant shall be construed in accordance with and governed by the laws of the state of California.
7) Entire Agreement: This agreement supersedes any prior or contemporaneous oral or written understanding or communications between Grantee, the Foundation and the donors and constitutes the entire agreement of the parties with respect to its subject matter. This agreement may not be amended or modified, except by mutual agreement and in writing, signed by both parties.
8) Nondiscrimination: The Grantee is responsible for ensuring that it is operated and organized so that it does not discriminate in the hiring of staff or the provision of services under any program or activity funded in whole or in part with funds made available by the Foundation on the basis of race, creed, color, ethnicity, national origin, religion, gender expression, sex, sexual orientation, age, physical or mental ability, pregnancy, veteran status, military obligations and marital status.
Because the Foundation is a 501c3 public charity, neither the donor nor the Foundation require a receipt for tax purposes. Please contact Grants Management at 213-239-2330 or [email protected] with any questions about this agreement. We wish you continued success in your charitable work.
DocuSign Envelope ID: 81A6AC2B-7626-4BD5-B6AF-D4FEC3791CEF Item 1T - Page 26
FOR THE GRANTEE:
Date Signature
Title
FOR THE FOUNDATION
Date Signature
Title
Date Signature
Title
DocuSign Envelope ID: 81A6AC2B-7626-4BD5-B6AF-D4FEC3791CEF 5/3/2022
CFO
5/3/2022
VP Development and Donor Relations
5/3/2022
President
Item 1T - Page 27
Q
OocuSigned by:
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54503ZED183D499
G
DocuSigned by :
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FPFA1O308082448
r-:; DocuSigned by :
L:::5:~
David Lee Gift to The Palm Springs Plaza Theatre Foundation Binding Term Sheet
April 21, 2022
This Term Sheet descr
ibes the key terms of the agreement between David Lee ( “Mr. Lee”), the City of Palm Springs (the “City”) and The Palm Springs Plaza Theatre Foundation (the “Grantee”) related to Mr. Lee’s gift of thre e million dollars ($3,000,000) and a pledge for a matching grant of two million dollars ($2,000,000 ) for an aggregate amount of FIVE MILLION DOLLARS ($5,000,000) (the “Gift”). This Term Sheet is a binding agreement between a donor advised fund at California Community Foundation with respect to which Mr. Lee is the donor advisor (the “David Lee Foundation #2”) and the Grantee with resp ect to the subject matter hereof. It is a summary of understanding between the parties of the material terms that will form the basis for the parties to ne gotiate and finalize a more detailed agreement regarding the Gift (the “Gift Agreement”). After execution of this Term Sheet , the parties will act in good faith to negotiate, finalize and enter into the Gift Agreem ent. All terms herein are subject to the representations and warranties to be included in the Gift Agreement.
The Gift
The David Lee Foundation #2 hereby gives to the Grantee THREE MILLION DOLLARS ($3,000,000) (the “Irrevocable Gift Funds”), and hereby pledges to match the fundraising efforts of the City with an additional TWO MILLION DOLLARS ($2,000,000) (the “Revocable Pledge Gift Funds”, and together with the Irrevocable Gift F unds, the Gift) for the purpose of restoring the Plaza Theatre (the “Theatre”), including fundraising for such restoration purpose. The Gift shall be paid pursuant to the following schedule:
Irrevocabl
e Gift Funds:
Within ten (10) business days of r eceipt by the David Lee Foundation #2 of a countersigned copy of the Gift Agreement: $3,000,000
Revocable Gift Funds, subject to the Grantee’s satisfaction of certain fundraising milestones, described below; provided, however, that no such payment from David Lee Foundation #2 shall be made prior to January 1, 2023:
Within ten (10) business days following written notice from the Grantee that the Grantee has received $500,000 of funds since the date of the Gift Agreement from sources other than the City or other state or federal government entities: $500,000 Within ten (10) business days following written notice from the Grantee that the Grantee has raised an additional $500,000 of funds from sources other than the City or other state or federal government entities: $500,000
Within ten (10) business days following written notice from the Grantee that the Grantee has raised an additional $500,000 of funds from sources other than the City or other state or federal government entities: $500,000
DocuSign Envelope ID: 81A6AC2B-7626-4BD5-B6AF-D4FEC3791CEF Item 1T - Page 28
47971257.12
- 2 -
Within ten (10) busin
ess days following written notice from the Grantee that the Grantee has raised an additional $500,000 of funds from sources other than the City or other state or federal government entities: $500,000
Terms of the Gift
1. The Gift funds shall be held in a segregated account established for the sole purpose of funding the restoration and/or remodeling (the “Restoration”) of the Theatre.
2. The matching requirements relating to the fundraising milestones the Grantee must satisfy in connection with the Revocable Gift Funds shall be set forth in the Gift Agreement.
3. The Restoration shall adhere as closely as is commercially possible to the Gensler proposals, or such future designs approved by the City and the Board of Directors of the Grantee (the “Board”), in keeping with the original 1936 design of the Theatre; provided, however, that Mr. Lee shall have a consultation right with respect to the following aspects of the Restoration: orchestra pit, stage, and dressing rooms (the location of such dressing rooms within the Theatre to be determined by the Board). It is understood that certain aspects of the Restoration shall deviate from the original 1936 design, specifically (i) the backstage and dressing room areas, which shall be outfitted to enable stage productions including but not limited to plays and small musicals; and (ii) certain HVAC, electric, plumbing, bathroom, upgrades, which shall comply with current standards and the requirements of the Americans with Disabilities Act as in effect as of the date of the Gift Agreement. The parties hereby agree that the vintage Plaza Theatre signs currently in existence are to remain part of the Theatre and shall not be modified in any way other than for purposes of the Restoration.
4. It is understood and agreed that if the City and Foundation discontinue fundraising efforts prior to commencement of restoration construction, the David Lee Foundation #2 shall have the right, on thirty (30) days’ notice, to discontinue the Gift with or without cause. Subject to Paragraph 9, below, should Mr. Lee exercise this termination right, the Grantee shall be entitled to retain any Gift funds already received by the Grantee.
5. The Board shall engage a theater professional to consult on aspects of the Restoration including, but not limited to, lighting, rigging and curtains. It is understood that Mr. Lee shall have a consultation right with respect to such theater professional.
6. Once completed, the Theatre shall be professionally managed by a professional theater manager. The Theatre shall not at any time be managed by any city entity not acquainted with theater management. It is understood that Mr. Lee shall have DocuSign Envelope ID: 81A6AC2B-7626-4BD5-B6AF-D4FEC3791CEF Item 1T - Page 29
47971257.12
- 3 -
a consultation right with respect to the engageme
nt of the professional theater
manager.
7. Mr. Lee shall have a permanent seat on the Board, with all such rights and responsibilities as are typically granted to a member of a board of directors of a nonprofit organization exempt from Federal income taxation within the meaning of section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”) and on equal footing with any and all other Board members. The Grantee’s Bylaws shall at all times allow for Mr. Lee to be re-elected to the Board such that he may have a permanent role on the Board until such time as he resigns or is unable to serve in such role.
8. An estimated fundraising plan, with a timeline for Restoration of the Theatre that provides for substantial completion within sixty (60) months of the date of this Term Sheet and includes a reasonable timeframe for commencement of construction, shall be attached as an exhibit to the Gift Agreement.
9. The City shall ensure that the Theatre is not sold or otherwise disposed of, other than as part of a lease or management agreement to a professional management company, for at least twenty (20) years after the completion of the Restoration; provided, however, that if it becomes necessary for the City to sell or otherwise dispose of the Theatre at an earlier date, the Grantee shall return the entirety of the Gift to the David Lee Foundation #2. In the event of such a sale, the Grantee shall promptly provide notice of the contemplated sale, including a plan for reimbursement of the Gift, to the then-advisers of the David Lee Foundation #2.
10. The City shall not commit to a lease, other than to a professional management agreement, of more than six (6) months following completion of the Restoration.
Following the completion of the Restoration, the Theatre may be leased for short periods of time, but shall not be rented for uses that inhibit the flow of the public through the property for any extended period of time (e.g., the Theatre may only be rented as a rehearsal space for short periods of time). Additionally, it is understood that no installment of the Gift shall be paid at any time when the Theatre is subject to a lease of more than six (6) months.
11. It is understood that the Theatre shall be maintained as a community asset for so long as it exists. The Theatre shall primarily be used for performances and events of the highest quality, including, but not limited to, concerts, chamber orchestra performances, film festivals, the short film festival, community meetings, addresses, conventions, cabaret performances, booked acts, lectures, music festivals, ideas festivals, charity and fundraising events, and other theater performances and events. City and its management will limit “community theater” or amateur productions to twenty-one (21) days per year.
DocuSign Envelope ID: 81A6AC2B-7626-4BD5-B6AF-D4FEC3791CEF Item 1T - Page 30
47971257.12
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12. Once the fi
rst installment of the Gift is received by the Grantee, the Grantee shall thereafter, on an annual basis, for five (5) years from the effective date of the Gift Agreement, provide Mr. Lee with a report describing the total amount contributed to the Grantee during the preceding year by the David Lee Foundation #2.
13. The Grantee will provide Mr. Lee with a copy of any proposed Media Release prior to its distribution, and shall not distribute any such Media Release without Mr. Lee’s written approval. For purposes of this Term Sheet, “Media Release” shall mean any publication, advertising, press release, internet web page or other media venue of any kind that makes reference to contributions from the David Lee Foundation #2 to the Grantee. Notwithstanding the foregoing, the Grantee may use without obtaining Mr. Lee’s prior consent any Media Releases prepared by Mr. Lee or the David Lee Foundation #2. At no time in any Media Release shall the Theatre be referred to as a “Community Theater”.
14. The name of the Theatre shall be the “David Lee Plaza Theatre”, and the Theatre shall bear such name in perpetuity. This naming right includes signage on the front of the Theatre above the main doors. Further details subject to Mr. Lee’s approval regarding the name of the Theatre and related signage shall be set forth in the Gift Agreement.
This Term Sheet shall be governed by California law. This Term Sheet may be executed in counterparts, each of which shall be deemed an original but all of which, when taken together, shall constitute one and the same instrument. This Term Sheet shall be binding upon, inure to the benefit of, and may be enforced by, each of the parties to this Term Sheet and its or his successors and permitted assigns. Each provision of this Term Sheet shall be considered separable, and if, for any reason, any provision or provisions hereof are determined to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall attach only to such provision and shall not in any manner affect or render illegal, invalid or unenforceable any other provision of this Term Sheet, and this Term Sheet shall be carried out as if any such illegal, invalid or unenforceable provision were not contained herein. This Term Sheet shall not be assigned by either party without the prior written consent of the other party. This Term Sheet, including any schedules, amendments, modifications, waivers, or notifications relating thereto may be executed and delivered by facsimile, electronic mail, or other electronic means. Any such facsimile, electronic mail transmission, or communication via such electronic means shall constitute the final agreement of the parties and conclusive proof of such agreement, and shall be deemed to be in writing and to have the same effect as if signed manually. Any consent required to be given in writing hereunder may be given by electronic mail. [signature page follows.]
DocuSign Envelope ID: 81A6AC2B-7626-4BD5-B6AF-D4FEC3791CEF Item 1T - Page 31
THE PALM SPRINGS PLAZA THEATRE FOUNDATION
By:��
Title:
Date: �\\)b�\" 1,7� �� \\\e/� ��l-\ .. � --oo�
CALIFORNIA COMMUNITY FOUNDATION, on behalf of the David Lee Foundation #2 By: _______ _
Title:
Date:
CITY OF PALM SPRINGS
By:��Title: J \A.� l, F+o
Date: � J 1 "l--1 2 2..
APPROVED AS TO FORM
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- 5 -
55575.18100\34642427.3
By:
Title:
Date
DocuSign Envelope ID: 81A6AC2B-7626-4BD5-B6AF-D4FEC3791CEF 5/3/2022
CFO
5/3/2022
VP Development and Donor Relations
Item 1T - Page 32 -
ATTACHMENT 5
Item 1T - Page 33
55575.18100\41483037.1
AGREEMENT FOR MANAGEMENT,
OPERATION AND ENTERTAINMENT PRODUCTION SERVICES FOR THE
HISTORIC PLAZA THEATRE
BY AND BETWEEN THE PALM SPRINGS PLAZA THEATRE FOUNDATION
AND
THE CITY OF PALM SPRINGS
Item 1T - Page 34
55575.18100\41483037.1
AGREEMENT FOR MANAGEMENT, OPERATION AND
ENTERTAINMENT PRODUCTION SERVICES FOR THE HISTORIC PLAZA
THEATRE
BY AND BETWEEN THE PALM SPRINGS PLAZA FOUNDATION AND
THE CITY OF PALM SPRINGS
This agreement for management, operation, and entertainment production and assistance services for the Historic Plaza Theatre (“Agreement”) is entered into , as of July 24, 2023 for reference purposes only, by and between the City of Palm Springs, a California charter city and municipal corporation (“City”) and The Palm Springs Plaza Theatre Foundation, a California nonprofit corporation (“Foundation”), referred to individually as a “Party” and collectively as the “Parties”.
RECITALS
WHEREAS, the City is the owner of the historic Plaza Theatre, located at 128 South Palm Canyon Drive, Palm Springs California (the “Plaza Theatre” or “Theatre”);
WHEREAS, the City acquired the Plaza Theatre from the former Palm Springs Community Redevelopment Agency, with the understanding that the City will assume the financial responsibility of the renovations after the acquisition and that the City w ill secure a new operator and that the Plaza Theatre will be maintained as a historic structure and performing arts venue;
WHEREAS, the Foundation was established as a nonprofit public benefit corporation in the State of California on October 21, 2021, and thereafter obtained its status as a 501(c)(3) organization;
WHEREAS, the Foundation’s corporate purposes include providing funds for the restoration, renovation, reconstruction, maintenance or operation of the Theatre;
WHEREAS, the Foundation has raised funds sufficient to renovate and reconstruct the Theatre to its historic grandeur;
WHEREAS, the Parties now wish to enter into this Agreement, in order to provide for the management, operation and entertainment production services for the Theatr e, in an effort to carry out the Parties’ intent that the Theatre be maintained as a community asset and operated for the benefit of the public.
NOW THEREFORE, in consideration of the mutual promises and covenants set forth herein, the Parties agree as follows:
Section I. Purpose
The purpose of this Agreement is to state the terms and conditions under which the Foundation will manage and operate the Plaza Theatre (including maintenance, but not repair, as set forth more fully below), produce entertainment presentations at the Plaza Theatre, and Item 1T - Page 35
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provide production assistance services for entertainment presentations presented by other users of the Plaza Theatre (collectively, the “Services”) . The Foundation may provide these services itself, or through a third-party selected by Foundation and approved by the City.
Section II. Related Agreements.
The Foundation may contract with a professional theatre management firm (a “Management Firm”) for the performance of the Services and the fulfillment of one or more of the Foundation’s obligations under this Agreement. I n the event the Foundation desires to provide the Services by way of such Management Firm, such arrangement shall be memorialized in writing. If the Foundation desires to contract with a Management Firm for the management of the Theatre, such third party must be a professional theat re management firm or company. Such third party agreement shall incorporate the provisions of this Agreement. The City shall have the authority to re ject/veto any Management F irm; provided, however, that the City shall not have the authority under this Agreement to approve or disapprove other employees, contractors or subcontractors that the Foundation or Management Firm may choose to engage.
Section III. Term.
The term (“Term”) of thi s Agreement shall be ten (10) years, commencing on January 1, 2024 through and including December 31, 2033, unless sooner terminated as provided herein or unless extended by the written mutual agreement of the Parties.
Section IV. Services to be Performed
A. Exclusive Management and Operational Responsibility. Foundation shall assume exclusive management and day-to-day operational responsibility for the Plaza Theatre, including, but not limited to:
(1) the maintenance obligations delineated in Exhibit A “Responsibility for Maintenance and Repairs”;
(2) arranging for continuous security for the Plaza Theatre pr emises and all contents thereof, as set forth below;
(3) providing supervision, coordination and technical support for other users of the Plaza Theatre;
(4) establishing, collecting, depositing and accounting for payments made by other users of the Plaza Theatre;
(5) at its own expense, hiring and contracting with consultants, and other professionals or experts that the Foundation, in its sole discretion, determines are necessary to perform its obligations and responsibilities under this Agreement; (6) employing, supervising, and terminating staff to perform its obligations and responsibilities under this Agreement; and,
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(7) taking such other actions, making all decisions, and entering into such contracts and agreements with third parties as may be required to perform the obligations and responsibilities required by this Agreement.
B. Entertainment Productions . The Foundation shall produce or cause to be produced live entertainment presentations in the Plaza Theatr e, through its own efforts or in collaboration or by agreement with other performing artists . . The Theatre shall primarily be used for performances and events of the highest quality, including, but not limited to, concerts, chamber orchestra performances , film festivals, the short film festival, community meetings, addresses, conventions, cabaret performances, booked acts, lectures, music festivals, ideas festivals, charity and fundraising events, and other theater performances and events (“Entertainment Presentations”). The Foundation will limit “community theater” or amateur productions to twenty- one (21) days per year, which productions may (but need not necessarily be) a City Use as defined in Section VI(B)(3) below.
1. Required Performances. During ea ch calendar year this Agreement is in effect, the Foundation shall produce and present, or cause to be produced and presented a combined total of not fewer than fifty two (52) performance days of Entertainment Presentations, as hereinafter defined. Absent an intervening cause, as set forth in Section VIII.E ( Force Majeure), the period during which no performances of Entertainment Presentations is presented shall not exceed forty-five (45) days.
C. Production Assistance Services. The Foundation shall encourage and assist other artists and groups to use the Plaza Theatre to produce and present Entertainment Presentations.
Production assistance services provided to other users shall include: operation of the box off ice and ticket sales; marketing and promotional consultation; and such other services and assistance as may be required to ensure quality presentation and appropriate use of the Plaza Theatre as set forth in this Agreement . The Foundation may charge such other users Co Production Fees for these services.
D. Marketing. T he Foundation shall undertake to market the Plaza Theatre Theater for Entertainment Presentations.
Section V. Financial
A. Financial Responsibility. The Foundation shall be financially responsible for the management and operation of the Plaza Theatre, except as specifically provided in this Agreement.
B. Co-Production Fees and Equipment Rental Fees . The Foundation shall have the authority to charge users fees for rental and use of the Plaza Theater, includ ing equipment in the Plaza Theatre, as well as for Production Assis tance Services. The Foundation shall retains such rental and co-production fees for its own use.
C. Ticket and Concession Prices . The Foundation shall have the authority to fix the prices to be charged for tickets to its Entertainment Presentations and the prices for concession items, including food, beverages and novelties. T he Foundation shall retain all revenue generated pursuant to this section.
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D. Accounting and Financial Records and Reporting.
1. Accounting Records. The Foundation shall, during the term of this Agreement and for a period of three (3) years after its termination, maintain complete and accurate accounting records and systems, utilizing the standard classification of accounts and Governmental Accounting Standards, and supporting documentation for all revenue generated and operating expenses incurred pursuant to this Agreement.
2. Annual Audit Reports. Not more than 120 days after the close of its fiscal year, the Foundation shall submit to City an audited financial statement prepared by an independent certified public accountant for the previous fiscal year. In addition to the financial statement, the Foundation shall submit an audited supplemental statement that segregates certa in operations of the Plaza Theatre from other operations of the Foundation. The segregated operations to appear in the supplemental statement shall include the following: revenues, ticket sales, subscription sales, concession sales, rental fees and co -production fees paid by other users, and direct expenses associated with the operation of the Plaza Theatre, including, utilities, maintenance of the premises, and maintenance of the FF&E. Within 120 days following the termination of this Agreement, a final report shall be submitted to City covering the period between the last report and the termination date.
3. Other Financial Reports . The Foundation shall provide to City , upon reasonable request, written financial and other reports and access to inspect all operational and financial records and data pertaining to the services provided under this Agreement.
Section VI. Rights and Obligations of the Parties.
A. Covenants By City . City agrees and covenants that during the term of this Agreement:
1. City Costs. City shall pay th e actual cost of property insurance, property taxes (if any), possessory interest tax (if any), and costs required to perform its repair obligations as set forth in Exhibit A. City shall have no obligation to pay the cost of any utilities.
2. Exterior Cleaning. City shall be responsible for the regular cleaning of the exterior portions of the Plaza Theatre premises. City shall periodically sweep and clean the sidewalks adjacent to the premises and outside courtyard areas, in order to keep these areas in a clean, safe and neat condition.
3. Repair. City shall be responsible for any and all repairs to the Plaza Theatre premises, including, without limitation, structural repairs, the electrical system, broken windows, underground or in- wall plumbing repairs, repairs to the HVAC system, the roof and any exterior improvements, as set forth in Exhibit A. Foundation agrees that it will not, nor will it authorize any person to, go onto the roof of the building without the prior written consent of City. City shall re spond, within a reasonable time period, to Foundation’s non- emergency requests for repairs. City shall respond 24 hours a day, 7 days a week for emergency repairs to the Plaza Theatre premises. For purposes of this section, “emergency” shall mean a sudden, unexpected occurrence that poses a clear and imminent danger, requiring immediate action to prevent or mitigate the loss or impairment of life, health, or property.
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4. Security Video Monitoring and Alarm Systems . City shall connect the Plaza Theatre premises to the City’s security video monitoring system for the monitoring of City properties and the City’s electronic alarm system . City shall provide the initial response to any alerts or notices produced by the City’s electronic alarm system, and shall notify the Foundation (and any Management Firm) of such incidents as quickly as possible.
B. Covenants By the Foundation. The Foundation agrees and covenants that during the term of this Agreement:
1. Operating Costs. The Foundation shall pay all costs associat ed with its occupancy of the Plaza Theatre and its business operations, including performance of the Services required by this Agreement and costs required to perform its maintenance obligations as set forth in Exhibit A. The Foundation (or the Management Firm) shall be responsible to pay the cost of any utilities associated with the Theatre. The Foundation shall keep the Plaza Theatre premises free from any liens arising out of any Services performed, material furnished, or obligation incurred by Foundation or alleged to have been incurred by Foundation.
2. Maintenance. Foundation shall be responsible for the minor cosmetic maintenance of the Plaza Theatre premises, such as vacuuming, window cleaning, mopping, painting, light bulb changes, regular deep cle aning of the premises, and small drywall repairs , as set forth in Exhibit A.
3. City Use of the Plaza Theatre. Foundation agrees to provide the Plaza Theatre facilities to City rent- free for City’s uses as outlined below. Use of the Theatre by the City shall include, but not be limited to: (a) City governmental purposes (such as meetings of the City Council, boards/c ommissions, staff, or personnel testing, town hall meeting or other governmental purpose) , (b) City-authorized meetings or events held by other public agencies (such as the Palm Springs Unified School District, Desert Water Agency, or the College of the Desert), (c) meetings or events held by non- profits and which are sponsored by the City (such as the State of the City) (collectively “City Uses”) . All requests by City for City Uses shall be subject at all times to availability due to prior confirmed event scheduling for the Plaza Theatre facilities. Use by the City for City Uses shall be rent-free, shall be limited to eighteen (18) event days per year, with this number being subject to modification by the Parties pursuant to Operating Memoranda, as set forth in Section VIII(P), below . Use by of the Theatre for City Uses shall be rent -free and City shall not reimburse the Foundation for any rents or costs/expenses incurred for labor, equipment, food and beverage (within the following cap) , audio-visual or other customary expenses associated with the City U se of the Theatre. The food and beverage cap for City Uses shall be $25,000 annually and shall be at the cost of the food and beverage subcontractor; not the Foundation.
4. Palm Springs International Film Festival Use. As set forth in City Council Resolution 24614, the Palm Springs International Film Society shall be entitled to use the Plaza Theatre during the period of the annual Film Festival during the first two weeks of each January.
Nothing in this Agreement shall prevent the Foundation from charging the Society a rental/usage fee, provided that such rental/usage fee is the lowest category of rental/usage fees charged to any other user. The Society’s use pursuant to this Section 4 shall not count toward the “City Uses” in Item 1T - Page 39
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Section 3, nor shall the Society’s use pursuant to this Section 4 qualify as a “community theater” or amateur production for purposes of Section IV(B)(1) above.
5. Annual Schedule of Presentations. The Foundation understands and acknowledges that City has a civic responsibility to ensure community access to, and effective, efficient utilization of the Plaza Theatre. T herefore, on or before June 30 of each year, the Foundation shall submit to City for its review and comment, an Annual Schedule of Entertainment Presentations. The Annual Schedule of Presentations shall set forth the various anticipated uses, users and periods of each such use for the Plaza Theatre, for that fiscal year and the following year. CITY shall have no right to approve play selection or performance content by reason of its review of the Annual Schedule of Presentations, however City shall have the right to require the Foundation to ensure that adequate periods of time are made available for use, of the Plaza Theatre by other users, as set forth in this Agreement. The Parties recognize that the schedule is subject to change during the course of the period covered by the schedule provided. Any modifications or substitutions to the Annual Schedule of Presentations shall be promptly submitted to City for review and comment prior to implementation of the modification or substitution, or if time does not permit prior review, as soon thereafter as is reasonable and practicable.
6. Annual Marketing Plan. The Foundation shall be responsible for preparing or for causing to be prepared an annual plan approved by City for the marketing of the Plaza Theatre (“Annual Marketing Plan”). The Annual Marketing Plan shall be presented to the City for approval no later than September 30th of each calendar year this Agreement is in effect.
7. Monthly Schedule of Production Bookings. On the first day of each month, the Foundati on shall submit to City a current schedule listing each of the confirmed production bookings for that month.
8. Maintenance and Equipment Replacement Schedule. Not later than March 30 of each year, the Foundation shall submit to City , for its approval, proposed schedules for facility maintenance of the Plaza Theatre.
9. Compliance with Law. The Foundation agrees to and shall, at its sole cost and expense, comply and secure compliance with all the requirements of all municipal, state, county and federal authorities now in force, or which may hereafter be in force, pertaining to the Plaza Theatre, or the operations conducted therein, and shall faithfully observe, and secure observance with, in the use of the Plaza Theatre, all municipal ordinances and state and fe deral statutes now in force or which may hereafter be in force. This obligation expressly includes but is not limited to compliance with any and all obligations under the Americans With Disabilities Act of 1990 (“ADA”) with regard to operation and maintenance of the Plaza Theatre, but shall not include capital improvements required under ADA, provided that City as owner of the Plaza Theatre, shall be responsible for compliance with all ADA obligations for which the owners of premises are responsible under the law. Foundation is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. If Foundation performs any “maintenance” with regard to the Plaza Theatre premises, and if the total compensation is more than $15,000 or more, Foundation agrees Item 1T - Page 40
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to fully comply with such Prevailing Wage Laws, if applicable. Foundation shall defen d, indemnify and hold the City , its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties, or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It i s the intent of the P arties to effectuate the requirements of sections 1771, 1774, 1775, 1776, 1777.5, 1813, and 1815 of the Labor Code within this Agreement, and Foundation shall therefore comply with such Labor Code sections to fullest extent required by law. It shall be mandatory upon the Foundation and all of Foundation’s contractors to comply with all California Labor Code provisions, which include, but are not limited to prevailing wages, employment of apprentices, hours of labor and debarment of contractors and subcontractors.
10. Non-Discrimination. The Foundation shall not discriminate on the basis of actual or perceived race, color, religion, ancestry, national origin, disability, medical condition, marital status, domestic partner status, sex, gender, gender identity, gender expression, or sexual orientation as these terms are defined by California Law, or association with members of classes protected under section 7.09.040 of the Palm Springs Municipal Code or in retaliation for opposition to any practices forbidden under that Section, against any person seeking accommodations, advantages, facilities, privileges, services, or membership in all business, social, or other establishments or organizations, operated by the Foundation, and the Foundation shall include a similar provision in all contracts entered into pursuant to this Agreement.
11. Equal Opportunity. The Foundation acknowledges that City seeks to promote employment and business opportunities for local residents and firms on all City contracts and use of the Plaza Theatre. The Foundation will, to the extent legally possible, solicit applications for employment, and bids and proposals for subcontracts, for work associated with this Agreement from local residents and firms as opportunities occur. The Foundation agrees to hire qualified local residents and firms whenever feasible.
12. Insurance. The Foundation shall procure and maintain, at its sole cost and expense, insurance as set forth in Exhibit B . The types , amounts of coverage may be modified by mutual agreement of the Parties, by way of Operating Memoranda, from time to time, based on the nature of the activities being undertaken.
13. Security/ Incident Reports. The Foundation shall be responsible for providing event security, in accordance with sound theatre management practices, which shall include coordination with the City’s Special Events Planning Team (SEPT) for events that occur outdoors or larger than normal events. In the event any incident occurs at the Plaza Theatre, involving a guest, invitee or patron and that is reasonably likely to result in a claim for damages for personal injury and/or property damage or loss, or involves a breach of security at the Plaza Theatre, the Foundation shall prepare and deliver to City , within 24 hours of the incident, a detailed report of the facts and circumstances surrounding the incident, including the names and addresses of the persons involved in, or witnessing, the incident.
Section VII. Termination.
A. Termination due to Funding Reduction. The Foundation understands that the continuance of this Agreement is contingent upon continued funding from the City of Palm Item 1T - Page 41
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Springs, at an adequate level for all of City ’s operating expenses. City promises to use its best efforts to secure the necessary funding; however, if funding is substantially reduced Parties shall enter into exclusive negotiations, for a ninety (90) day period from the effective date of notice of the funding reduction or elimination, to modify the terms and conditions of this Agreement consistent with the available funding. During this period, the Foundation may continue to use the Plaza Theatre under the terms and conditions of this Agreement, provided it assumes all financial obligations required for operation of the Plaza Theatre operation, to the extent such costs exceed funds available to City. In the event the P arties are unable to reach agreement on modified terms, this Agreement shall terminate at the earliest possible date, but not more than ninety (90) days following the expiration of the negotiation period. In the event funding from the City of Palm Springs is terminated, this Agreement shall terminate effective the date such funding ceases.
B. Termination For Cause. In the event either Party commits a breach of this agreement, the non- breaching Party may terminate this agreement by first giving written notice to the breaching Party specifying the default(s) and demanding cure of the default(s) within a commercially reasonable time. Should the Foundation, during the term of this Agreement, make any assignment for the benefit of its creditors, or voluntarily or involuntarily be declared bankrupt or file for protection under any chapter of the Bankruptcy Act, or if a receiver or liquidator shall be appointed to administer the Foundation’s affa irs, such action by the Foundation shall be a material breach of this Agreement, City shall give notice of such breach to the Foundation and provide a commercially reasonable time for the Foundation to cure such default. If the default(s) is not cured by the defau lting P arty within the stated period, this Agreement may be terminated by the non- breaching Party with a written notice of termination stating an effective date of not less than ninety (90) days from the date of the notice. If the breaching Party cures the default(s) following notice of termination but prior to the effective date, the non- breaching Party may, in its sole and absolute discretion and in writing, waive the notice of termination in which event this Agreement shall be reinstated.
C. Rights and Obligations Upon Termination. On the effective date of termination of this Agreement, the Foundation shall provide to City the following: 1) a list of any events scheduled in the Plaza Theatre following the effective date of termination and copies of all signed contracts for such events; 2) an inventory and possession of all furniture, fixtures and equipment (FF&E) belonging to City ; 3) documentation, acceptable to City, that there are no outstanding and unpaid bills for utilities or other expenses payable by the Foundation under this Agreement.
Section VIII. General Provisions.
A. Mutual Indemnification. Except as o therwise provided herein, each P arty shall indemnify and hold harmless the other P arty, its officials, directors, officers, agents, employees, representatives and subcontractors, and defend against all claims, damages, losses and expenses, including attorneys’ fees, arising out of or resulting from the performance of their respective duties and obligations specified herein, caused by the negligence, om ission or willful act of the Party, its agents, employees, representatives and sub-contractors.
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B. Dispute Resolution. Prior to initiating litigation to enforce or interpret this Agreement, the Parties will attempt in good faith to resolve any controversy or claim arising out of or relating to this Agreement by prompt negotiation as follows:
1. Negotiations Between Senior Executives/Representatives . Either P arty may initiate negotiations b y written request to the other Party setting forth the particulars of t he dispute, the terms of the Agreement involved in the dispute, and a suggested resolution. Within ten (10) days following the request, senior managers or representatives of each Party (i.e., the Chief Executive Officer of the Foundation and the City Mana ger of the City), shall meet to attempt a r esolution of the dispute. The P arties shall continue to meet and attempt resolu tion until such time as either P arty determines a resolution is not possible. Upon such determination, written notice shall be given to the other Party terminating dispute resolution.
2. Continued Performance During Dispute Resolution. The Parties shall continue performance of their respective obligations in accordance with this Agreement during the resolution of any dispute.
C. Independent Contractor Status. In the performance of its obligations under this Agreement, the Foundation shall be an independent contractor and not an agent of City. Neither the City nor any of its employees shall have any control over the manner, mode or means by which Foundation, its agents or employees perform the services required herein, except as otherwise set forth herein. Foundation shall perform all Services required herein as an independent contractor of City and shall remain at all times as to City a w holly independent contractor with only such obligations as are consistent with that role. Employees or contractors of Foundation are not City employees, and employees of City are not employees or contractors of Foundation. Neither Party shall at any time or in any manner represent that it or any of its agents or employees are agents or employees of the other Party. Each Party shall be solely responsible for compliance with State and Federal Law with respect to the wages, hours, benefits, and working conditions of its employees, including requirement for payroll deductions for taxes.
D. Access to The Plaza Theatre. The Foundation agrees that City and its designees shall have the right to enter t he Plaza Theatre during reasonable business hours, with or wit hout prior notice, and in the event of an emergency situation, at any time. This right of access does not, and is not intended to, grant City or its representatives or designees the right of access during or for a Entertainment Presentation for which admission is charged, without a paid ticket for admission, except in an emergency situation.
E. Force Majeure. The obligation of any party to perform any acts hereunder shall be suspended during the period such performance is prevented by acts of God; war; riot ; invasion; fire; accident; strike or walkout; government interference, regulation, appropriation, or rationing; or, by inability to secure goods or provide services because of the foregoing conditions. The obligation(s) shall resume upon cessation of the condition of Force Majeure.
F. Notices. Any notice required herein shall be deemed to have been sufficiently given when sent by certified, registered mail, postage prepaid, or by electronic mail or facsimile, addressed to:
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To City, addressed to: City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: City Manager
Facsimile: (760) 323-8207
[email protected]
With a copy to: City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Attn: City Attorney
Facsimile: (760) 322-8317
[email protected]
or to the Foundation, addressed to:
Palm Springs Plaza Theatre Foundation
1775 E. Palm Canyon Dr.
Suite 110-1028
Palm Springs, CA 92262
Attn: Chairperson
Facsimile: [__________]
Email: [_____________]
and said notice shall be deemed communicated when personally delivered, sent by electronic mail or facsimile with documentation of successfu l transmission, or on the fourteenth (14th) calendar day following mailing by first class certified U.S. Mail, postage prepaid.
G. Assignment. The Foundation shall not assign this A greement or any rights accruing hereunder, except with the prior written per mission of the City . The Foundation shall have the right to retain, hire and contract with third parties to perform operational and maintenance services required of the Foundation, subject to City ’s prior written approval, which shall not be unreasonably withheld.
H. Amendment. No amendment of this A greement shall be valid or binding on the Parties unless made in writin g and signed on behalf of each Party by a duly authorized representative.
I. Singular. Plural, and Gender. As used herein, the singular shall include the plural and the masculine shall include the feminine or neuter.
J. Headings. All section and paragraph headings are for reference and convenience only and do not alter, amend, explain, interpret or otherwise affect the terms and conditions of this Agreement.
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K. Applicable Law. This agreement is made and entered into in the State of California and shall be governed, interpreted and enforced in accordance with the laws of the State of California.
L. Attorneys’ Fees. The prevailing P arty in any legal action, including binding arbitration, brought to enforce or interpret any provisions of this Agreement, shall be entitled to an award of reasonable attorneys’ fees against the other party, which fees may be set in the same action or a separate action brought for that purpose.
M. Entire Agreement . This Agreement contains the entire agreement between the Parties with respect to the matters herein, and prior agreements, promises, statements or negotiations not expressly set forth herein are of no force or eff ect, with the exception of that certain Memorandum of Understanding by and between the City and the Foundation, as amended, and that certain document entitled “David Lee Gift to The Palm Springs Plaza Theatre Foundation Binding Term Sheet”, dated April 7, 2022.
N. Partial Invalidity. If any term or provision of this Agreement is found by a court of competent jurisdiction to be void or unenforceable, the remaining terms herein shall be unaffected and remain in full force and effect.
O. Incorporation of Exhibits . The Exhibits attached hereto are hereby expressly incorporated by reference by the Parties into this Agreement, as though fully set forth herein.
P. Operating Memoranda. The provisions of this Agreement require a close degree of cooperation between City and Foundation, and the operation of the Theatre hereunder may demonstrate that refinements and clarifications are appropriate with respect to the details of performance of City and Foundation. If and when, from time to time, during the term of thi s Agreement, City and Foundation agree that such clarifications are necessary or appropriate, City and Foundation shall be authorized to effectuate such clarifications through Operating Memoranda approved in writing by the City Manager and Foundation, which, after execution, shall become a part hereof, and may be further clarified from time to time as necessary with future approval by City and Foundation. No such Operating Memorandum shall be in conflict with this Agreement. The City Manager, in consultat ion with the City Attorney, shall make the determination on behalf of City whether a requested clarification may be effectuated pursuant to this Section or whether the requested clarification is of such a character to constitute an amendment hereof pursuant to S ection VIII:H above. The City Manager shall be authorized to execute any Operating Memoranda hereunder on behalf of City. Notwithstanding the foregoing, nothing contained in this paragraph shall prevent the City Manager from bringing an issue of clarification before the City Council for the City Council’s determination.
Q. Counterparts . This Agreement may be executed in one or more counterparts , including with electronic signatures, and each of such counterparts, for all purposes, shall be deemed to be an original, but all of such counterparts together shall constitute but one and the same instrument, binding upon the parties, notwithstanding that all of the parties may not have executed the same counterpart.
Item 1T - Page 45
55575.18100\41483037.1
- 12 -
IN WITNESS WHEREOF, this Agreement is e xecuted by the Parties on the date (s) set forth below.
PALM SPRINGS PLAZA THEATRE
FOUNDATION
By:
J.R. Roberts, Chief Executive Officer
Date:
CITY OF PALM SPRINGS
By:
Scott Stiles, City Manager
Date:
By:
Rick Vila, Secretary
Date:
ATTEST:
By:
Brenda Pree, City Clerk
APPROVED AS TO FORM:
BEST BEST & KRIEGER LLP
By:
Jeffrey S. Ballinger City Attorney
Item 1T - Page 46
55575.18100\41483037.1
Exhibit A
EXHIBIT A
RESPONSIBILITY FOR MAINTENANCE AND REPAIRS
SYSTEM/AREA CITY RESPONSIBILITIES FOUNDATION
RESPONSIBILITIES
ELECTRICAL/LIGHTING &
POWER
Wiring, conduit, breakers,
light fixtures.
Replace lamps, switch outlet
plats, outlets and fixture
lenses. All exterior lighting
including lamps, fixed
security & safety lights.
EMERGENCY POWER
SYSTEM
Central Circuit Repair parts
and/or system
wiring/conduit, etc.
Periodic operational check-
out.
None.
HEATING AND
VENTILATION, PUMPS,
BOILERS AND FILERS
SYSTEM, AIR HANDLERS
AND HEATING CONTROLS
All except filter/strainer
changes and daily/weekly
operational checks.
Including ducts, air
handlers, etc.
Report problems to City
staff.
PLUMPING, SEWER, WATER Broken pipes, valves within
system. Clean sewer
outside of building.
Plumbing fixtures excluding
those listed under REP’s
responsibilities. Repair and
preventive maintenance
duties in the public
restroom.
All-except broken pipes and
valves within system and
clearing sewer outside of
building. Repair and
maintain all plumbing in
concession, green and
dressing room areas.
PAINTING All exterior, including tough
up after vandalism.
All interior walls.
INDOORS/HARDWARE/LOCKS Repair and maintain all
doors in public domain.
Report problems to City
staff.
WINDOWS/FRONT DOORS
GLASS/ALARM SYSTEM
Replace glass in doors.
Replace/repair windows and
glass in exterior windows.
Maintain alarm systems.
Cleaning of glass in doors
and windows. Replace glass
if responsible for breakage.
Clean metal fixtures.
DOORS/GATES Replace doors and gates.
Replace/repair windows and
Cleaning of doors and gates.
Item 1T - Page 47
55575.18100\41483037.1
Exhibit A
SYSTEM/AREA CITY RESPONSIBILITIES FOUNDATION
RESPONSIBILITIES
glass in doors and gates.
Maintain alarm systems in
doors/gates.
FIRE SUPPRESSION SYSTEM,
INCLUDING ALARM
Maintain and repair fire
suppression and alarm
system throughout building.
Preventive maintenance.
Report any problems to City
staff.
FLOOR COVERING Replace worn carpeting.
Quarterly professional
cleaning.
Professional cleaning as
needed. Custodial car and
repair/maintain flooring in
non-public areas. Spot
clean carpet as needed.
DISPLAYS Replace damage and
irreparable letters and sign
structure.
Install and operate displays.
Custodial care of displays.
ELEVATORS – PASSENGER None Report problems to City
staff.
TRASH COMPACTOR All except routing
inspection.
Report problems to City
staff.
PEST CONTROL Extermination for termites,
bees, pests and other vermin
in and around structure.
Report problems to City
staff.
SEATING (Stage/Space) Replace worn damaged or
irreparable seats.
Repair, clean and provide
preventative maintenance.
SOUND SYSTEM Replace worn, damages, and
irreparable sound
equipment. All repairs that
must be performed out of
house. (Except for damage
caused by the negligence of
the Foundation).
Repair, clean and provide
preventative maintenance.
STATE SETS (Lighting & Sound
Grids, Stages, Curtains, Scrims,
Catwalk and acoustics, Genie lift,
etc.)
Repair Genie Lift, if out of
house repairs are needed.
(Except for damage caused
by the negligence of the
All minor repairs, cleaning
and provide preventative
maintenance, except major
repairs to Genie Lift.
Item 1T - Page 48
55575.18100\41483037.1
Exhibit A
SYSTEM/AREA CITY RESPONSIBILITIES FOUNDATION
RESPONSIBILITIES
Foundation).
OFFICE FURNITURE &
EQUIPMENT
Replace worn and
irreparable items.
Minor in-house repair and
cleaning. Preventative
maintenance.
THEATRE LIGHTING Replace worn, damages, and
irreparable lighting
equipment. All repair
performed out of house.
(Except for damage caused
by Foundation’s
negligence).
Repair, clean and provide
preventative maintenance.
GENERAL HOUSEKEEPING
DUTIES
None Clean, disinfect and keep in
a sanitary manner all office,
storage, working areas (front
and stage), restrooms, and
concession areas. Including
those in the public domain
NON PUBLIC AREAS
(Backstage production areas,
dressing room, green room,
storage rooms, sound & lighting
control rooms, and concession,
Foundation office areas.)
All problems structural,
mechanical or electrical,
involving systems initially
installed.
Cleaning, minor repairs and
preventative maintenance of
all ceiling tiles, walls,
flooring, mirrors, wiring and
other equipment and fixtures
initially installed. Clean,
disinfect and keep in a
sanitary manner
Item 1T - Page 49
55575.18100\41483037.1
Exhibit B
EXHIBIT B
REQUIRED INSURANCE
1. Insurance.
a. Insurance To Be Maintained By Foundation. Foundation shall procure and maintain, at its sole cost and expense, the insurance described below. The insurance shall be for the Term of this A greement and includes any extensions, unless otherwise specified in this Agreement. The insurance shall be procured in a form and content satisfactory to City. The insurance shall apply against claims which may arise from Foundation’s performance of the Services and related work under this Agreement, including Foundation’s agents, representatives, or employees. In the event the City Manager determines that the work or Services creates an increased or decreased risk of loss to the City, Foundation agree s that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the City Manager . Foundation shall immediately substitute any insurer whose A.M. Best rating drops below the levels specified in this Agreement. If any insurance is written on a claims -made basis, such insurance shall be maintained for a minimum of three (3) years subsequent to the expiration of this Agreement, or a three (3) year extended reporting period endorsement shall be purchased.
The minimum amount of insurance required shall be as follows:
(1) Workers’ Compensation. To the extent required by California law, Foundation shall obtain and maintain, in full force and effect throughout the Term of this Agreement, workers’
compensation insur ance in at least the minimum statutory amounts, in compliance with all other statutory requirements, as required by the State of California. Foundation agrees to waive and obtain endorsements from its workers’ compensation
insurer waiving subrogation rights under its workers’
compensation insurance policy against the City and shall endeavor to use commercially reasonable efforts to require each of its subcontractors, if any, to do likewise under their workers’ compensation insurance policies.
(2) Crime Fidelity Coverage. At least $100,000.00 per occurrence of coverage for (i) Foundation employee dishonesty; (ii) forgery or alteration; (iii) theft, disappearance and destruction inside and outside the Theatre; and (iv) robbery and safe burglary inside and outside the Theatre.
(3) Commercial General Liability . Foundation shall obtain and maintain, in full force and effect throughout the Term of this Agreement, a policy of commercial general liability insurance written on a per occurrence basis with a combined singl e limit of at least four million dollars ($4,000,000.00) for bodily injury and property damage including coverages for contractual Item 1T - Page 50
55575.18100\41483037.1
Exhibit B
liability, personal injury, independent contractors, broad form property damage, products and completed operations. Any combination of primary and umbrella liability policies shall satisfy this requirement.
(4) Employer’s Liability Coverage. Foundation shall obtain and maintain, in full force and effect throughout the Term of this Agreement, a policy of employer’s liability insurance written on a per occurrence basis with a policy limit of at least one million dollars ($1,000,000.00) for bodily injury or disease.
b. Deductibles and Self -Insured Retentions. Any deductibles or self -insured retentions must be declared to and approved by the City Manager or his/her designee prior to commencing any work or Services under this Agreement, such approval not to be unreasonably withheld. Foundation guarantees payment of all deductibles and self-insured retentions. c. Other Insurance Requirements. The following provisions shall apply to the insurance policies required of Foundation under this Agreement:
(1) For any claims related to this Agreement, except for Crime and Workers’ Compensation/Employer’s Liability, Foundation’s coverage shall be primary insurance with respect to the City and its officers, council members, officials, employees, agents, and volunteers. Any insurance or self -insurance maintained by the City and its officers, council members, officials, employees, agents, and volunteers shall be in excess of Foundation’s insurance and shall not contribute with it.
(2) Commercial General Liability insurance coverage and limits provided by Foundation and available or applicable to this Agreement are intended to apply to each insured, including additional insureds, against whom a claim is made or suit is brought to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the City or its operations shall limit the application of such insurance coverage. (3) Foundation agrees to require its commercial auto liability, commercial general liability and workers’ compensation insurers to provide a notice of cancellation to the City Manager. Regarding all other insurance policies, Foundation agrees to provide the City Manager with thirty (30) days’ notice of cancellation, except for ten (10) days’ notice of cancellation for non- payment of premium.
It is Foundation’s obligation to ensure timely compliance with all insurance submittal requirements as provided in this Agreement. (4) Foundation agrees to endeavor to ensure, if commercially reasonable, that subcontractors, and any other parties involved with Item 1T - Page 51
55575.18100\41483037.1
Exhibit B
the scope of Management Services and related Work provided pursuant to this Agreement, who are brought onto or involved by Foundation, provide the same minimum insurance coverage required of Foundation. Foundation agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Foundation agrees that upon request, all agreements with subcontractors and others engaged in the performance of services hereunder this Agreement will be submitted to the City for review.
(5) Foundation acknowledges and agrees that any actual or alleged failure on the part of the City to inform Foundation of non- compliance with any insurance requirement in no way imposes any additional obligations on the City nor does it waive any rights in this or any other regard.
(6) Foundation shall provide proof that policies of insurance required in this Agreement, expiring during the Term of this Agreement, have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. Endorsements as required in this Agreement applicable to the renewing or new coverage shall be provided to City prior to the policy expiration and/or renewal date.
(7) Requirements of specific insurance coverage features or limits contained in this section are not intended as limitations on coverage, limits, or other requirements, or as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party or insured to be limiting or all-inclusive. (8) The requirements in this section supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts with or impair the provisions of this section. (9) Foundation agrees to provide immediate notice to City of any claim or loss against Foundation arising out of the Services and related w ork performed under this Agreement and for any other claim or loss that may reduce the insurance available to pay claims arising out of this Agreement. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City, or to reduce or dilute insurance available for payment of potential claims.
Item 1T - Page 52
55575.18100\41483037.1
Exhibit B
(10) Foundation agrees that the provisions of this Exhibit shall not be construed as limiting in any way the extent to which the Foundation may be held responsible for the payment of damages resulting from Foundation’s activities or the activities of any person or person for which Foundation is otherwise responsible. d. Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best’s Key Rating of A -, VII, or better, unless such requirements are waived in writing by the City Manager or his designee due to unique circumstances.
e. Verification of Coverage. Foundation shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before Management Services commence. Additional insured endorsements are not required for Errors and Omissions and Workers’ Compensation policies.
Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate:
(1) "The City of Palm Springs, its officials, employees, and agents are named as an additional insured… ” (“as respects City of Palm Springs Contract No.___” or “for any and all work performed with the City” may be included in this statement) for General and Auto Liability policies.
(2) “This insurance is primary and non- contributory over any insurance or self-insurance the City may have...” (“as respects City of Palm Springs Contract No.___” or “for any and all work performed with the City ” may be included in this statement) for General and Auto Liability policies.
(3) “Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 calendar days written notice to the Certificate Holder named.”
(4) Both the Workers’ Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers.
In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies. All certificates of insurance and endorsements are to be received and approved in writing by the City before Management Services commence. All certificates of insurance must be authorized by a person with authority Item 1T - Page 53
55575.18100\41483037.1
Exhibit B
to bind coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of Services shall not waive Foundation’s obligation to provide them.
Item 1T - Page 54
CITY COUNCIL STAFF REPORT
07/24/2023
SUBJECT:
ANNUAL LEVY OF ASSESSMENTS FOR VARIOUS STREET LIGHTING AND PARKWAY MAINTENANCE DISTRICTS CITYWIDE FOR FISCAL YEAR 2023-2024 RECOMMENDATION:
Open the Public Hearing and take public testimony; and1.
Adopt a Resolution “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, APPROVING THE ENGINEER’S REPORT
AND ORDERING THE CONTINUED OPERATION AND MAINTENANCE OF IMPROVEMENTS FOR STREET LIGHTING MAINTENANCE DISTRICT NO. 3, AND PARKWAY MAINTENANCE DISTRICTS NO. 6A, 6C, 7, 8, 9, AND 10 (ZONES 1 AND 2), AND LANDSCAPE MAINTENANCE DISTRICT NO. 12, AND
ORDERING THE LEVY AND COLLECTION OF ANNUAL ASSESSMENTS
RELATED THERETO FOR FISCAL YEAR 2023/2024.”
2. Attachments
Item 2A
CITY COUNCIL STAFF REPORT
DATE: JULY 24, 2023 PUBLIC HEARING
SUBJECT: ANNUAL LEVY OF ASSESSMENTS FOR VARIOUS STREET LIGHTING
AND PARKWAY MAINTENANCE DISTRICTS CITYWIDE FOR FISCAL YEAR 2023-2024
FROM: Scott C. Stiles, City Manager
BY: Engineering Services Department
SUMMARY:
This annual item will complete proceedings required by law to continue the levy of existing annual special assessments in the City’s various Street Lighting and Parkway Maintenance Districts. A Public Hearing is required to solicit public comments on the City’s consideration to levy and collect special assessments for the subject fiscal year. In accordance with state law, resolutions adopting detailed reports for the districts were approved by the City Council at the meeting of June 29, 2023.
RECOMMENDATION:
1) Open the Public Hearing and take public testimony; and
2) Adopt Resolution No. _____ “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, APPROVING THE ENGINEER’S
REPORT AND ORDERING THE CONTINUED OPERATION AND
MAINTENANCE OF IMPROVEMENTS FOR STREET LIGHTING
MAINTENANCE DISTRICT NO. 3, AND PARKWAY MAINTENANCE DISTRICTS NO. 6A, 6C, 7, 8, 9, AND 10 (ZONES 1 AND 2), AND LANDSCAPE MAINTENANCE DISTRICT NO. 12, AND ORDERING THE LEVY AND
COLLECTION OF ANNUAL ASSESSMENTS RELATED THERETO FOR FISCAL YEAR 2023/2024.”
STAFF ANALYSIS:
In accordance with the Streets and Highways Code of the State of California, the City is required to prepare Engineer’s Reports on the annual costs to operate and maintain improvements within the City’s various Street Lighting or Parkway Maintenance Districts, which include:
Item 2B - Page 1
1. Street Lighting Maintenance District No. 3 consists of 75 residential parcels located in the “Crossley Tract,” south of 34th Avenue along Lawrence Street and Marguerite Street. District No. 3 was established in 1983 to provide funding for the installation, operation and maintenance of street lighting along Lawrence Street and Marguerite Street, shown in the Vicinity Map below:
District No. 3 Vicinity Map
Crossley Tract
Legend
~Site
c::J 500" R adius
I
:..I
a:
1--,
.___
I-
'
Item 2B - Page 2
2. Parkway Maintenance District No. 6A consists of 25 commercial and industrial properties located in the “Fairport Development,” between Chia Road and Tachevah Drive, west of Gene Autry Trail. District No. 6A was established in 1980 to provide funding for the maintenance of parkway landscaping along the south side of Chia Road as shown in the Vicinity Map below:
District No. 6A Vicinity Map
Fairport Development
__l____J______l I I I _LJ . J _J__J I L_____J L_J LJ
E VI ST A CHINO ~-_-=,.-=..-=..-=..~-=,.-=.~-=.-:;:.-=,=~=.VI STA·CH NO L__________J L --=---=----.:..__--=-------.--... L I L l I I I I ~ - -=--------..------==----.-..- PA SEO-BARBA RA---r-,....__
Legend
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~<
i------------'-------,,---1 \1---
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z
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Item 2B - Page 3
3. Parkway Maintenance District No. 6C consists of 30 residential parcels located in the “Park Sonora Tract,” on the east side of El Cielo Road along Sonora Road, Loma Vista Circle and San Marin Circle. District No. 6C was established in 1980 to provide funding for the maintenance of parkway landscaping along the east side of El Cielo Road along the frontage of the Park Sonora Tract, shown in the Vicinity Map below:
District No. 6C Vicinity Map
Park Sonora Tract
. .-----.-+-.--------.-~~ C
Cl::
f----.--'- --1,- ..J..._---.L-_j___j g ~~~~~~~?;:!
'------1._L___)i:5 l'.$5c?Q~8&~gg~ x1-
[ legend
' ~S~e
D 50·(}' Radius
...J
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ESCOBA DR
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Item 2B - Page 4
4. Parkway Maintenance District No. 7 consists of 53 residential parcels located in the “Sunrise Norte Tract,” on the north side of San Rafael Drive west of Sunrise Way, located along Mountain Shadow Drive, Sand Spring Drive, Mica Drive, Garnet Road, and Twin Star Road. District No. 7 was established in 1990 to provide funding for the maintenance of parkway landscaping along the north side of San Rafael Drive along the frontage of the Sunrise Norte Tract, shown in the Vicinity Map below:
District No. 7 Vicinity Map
Sunrise Norte Tract
Legend
~ Site
l=i 500' Radius
I.II
Cl
0 I.II (I)
~
_____ ____ LU __ --r
tli::
i3
tli::
I.II
~
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z
::::,
(/J
~-i f-----1----
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~-·c f---+---
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Item 2B - Page 5
5. Parkway Maintenance District No. 8 consists of 62 residential parcels located in the “Vintage Palms Tract,” on the north side of San Rafael Drive and the east side of Avenida Caballeros. District No. 8 was established in 1990 to provide funding for the maintenance of parkway landscaping along the north side of San Rafael Drive and the east side of Avenida Caballeros along the frontage of the Vintage Palms Tract, shown in the Vicinity Map below:
District No. 8 Vicinity Map
Vintage Palms Tract
Legend
~ Site
c:J 500 ' Raai us
/
SUNFl! O\'VER CIR N
SUNFLOW ER C IR S
I
Item 2B - Page 6
6. Parkway Maintenance District No. 9 consists of 77 residential parcels located in the “Flora Vista Tract,” on the south side of Racquet Club Road, the west side of Sunrise Way, and the north side of Via Escuela. District No. 9 was established in 1997 to provide funding for the maintenance of parkway landscaping along the west side of Sunrise Way along the frontage of the Flora Vista Tract, shown in the Vicinity Map below:
District No. 9 Vicinity Map
Flora Vista Tract
RACQUET CLUB RD
I I I I
I J I I I I ___ ROCAELLE-RD
Q
It: ·r i---+-1-:~
f---tt-- 0
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Item 2B - Page 7
7. Parkway Maintenance District No. 10, Zone 1, consists of 308 residential parcels located in the “Mountain Gate (Phase 1),” development on the east side of N. Palm Canyon Drive and north of Gateway Drive. District No. 10, Zone 1, was established in 2003 to provide funding for the maintenance of parkway landscaping along the east side of N. Palm Canyon Drive, the north side of Gateway Drive, and drainage basins along East Gate Road, shown in the Vicinity Map below:
District No. 10 – Zone 1 Vicinity Map
Mountain Gate (Phase 1)
Legend
~ Si le
c::::J 500' Rad ius
Item 2B - Page 8
8. Parkway Maintenance District No. 10, Zone 2, consists of 196 residential parcels located in the “Mountain Gate (Phase 2),” development on the east side of N. Palm Canyon Drive. District No. 10, Zone 2, was established in 2005 to provide funding for the maintenance of parkway landscaping along the east side of N. Palm Canyon Drive, shown in the Vicinity Map below:
District No. 10 – Zone 2 Vicinity Map
Mountain Gate (Phase 2)
Legend
~Site
c::::J 500' Radius
Item 2B - Page 9
9. Landscape Maintenance District No. 12 consists of 6 commercial parcels located in the “Smoke Tree Commons” shopping center on the south side of E. Palm Canyon Drive and west side of Barona Road. District No. 12 was established in 2008 to provide funding for the maintenance of median landscaping within E. Palm Canyon Drive between Cerritos Drive and Farrell Drive, shown in the Vicinity Map below:
District No. 12 Vicinity Map
Smoke Tree Commons
J
~ er
'C
-·~
-,~
Legend
~Si e
c::::J 500' Radius
E PALM CANYON DR
Item 2B - Page 10
On June 29, 2023, the City Council adopted Resolutions ordering the preparation of and giving preliminary approval of the Engineer’s Reports for the Districts and declaring its intention to conduct a public hearing on July 24, 2024, regarding the Districts and the levy and collection of special assessments related thereto. The Engineer’s Reports have been filed with the City Clerk and are available for public review. In accordance with the Streets and Highways Code of the S tate of California, it is necessary for the City Council to conduct a Public Hearing, take public testimony, and in the absence of a majority protest to the special assessments, the City Council can approve the levy and collection of special assessments for the various Special Districts for the subject fiscal year.
FISCAL IMPACT
:
Approval of this action is the final annual step to continue levying special assessments in the City’s Street Lighting and Parkway Maintenance Districts. In accordance with the Engineer’s Reports prepared for each Maintenance District, on the basis that a majority protest is not presented at the public hearing the City Council can order the levying of special assessments to collect revenue to pay for expenditures incurred within each District, as identified in the following Table for the subject fiscal year:
Special District No. Levy Amount Qty of Parcels
Crossley Tract (3) $4,281.75 75
Fairport Development (6A) $5,154.00 19
6 Park Sonora Tract (6C) $12,367.80 30
Sunrise Norte (7) $22,165.13 53
Vintage Palms (8) $17,813.84 62
Flora Vista (9) $14,952.63 77
Mountain Gate Zone 1 (10-1) $82,452.80 292
16 Mountain Gate Zone 2 (10-2) $166,986.33 175
21 Smoke Tree Commons (12) $19,199.94 6
Total Levy $345,374.22 832
The proposed assessments for the subject Fiscal Year are lower or equal to the maximum assessment amounts previously approved by property owner petition or balloting, in accordance with the provisions of the California Constitution Article XIIID (Proposition 218).
REVIEWED BY:
City Engineer: Joel Montalvo
Deputy City Manager: Flinn Fagg
City Manager: Scott Stiles
ATTACHMENTS:
Item 2B - Page 11
A. Resolution
Item 2B - Page 12
ATTACHMENT A
Item 2B - Page 13
RESOLUTION NO. _____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM SPRINGS, CALIFORNIA, APPROVING THE
ENGINEER’S REPORT AND ORDERING THE
CONTINUED OPERATION AND MAINTENANCE OF
IMPROVEMENTS FOR STREET LIG HTING
MAINTENANCE DISTRICT NO. 3, AND PARKWAY
MAINTENANCE DISTRICTS NO. 6A, 6C, 7, 8, 9, AND 10
(ZONES 1 AND 2), AND LANDSCAPE MAINTENANCE
DISTRICT NO. 12, AND ORDERING THE LEVY AND
COLLECTION OF ANNUAL ASSESSMENTS RELATED
THERETO FOR FISCAL YEAR 2023/2024
WHEREAS, the City Council of the City of Palm Springs, California, (hereinafter the “City Council”), has by previous Resolution established Street Lighting Maintenance District No. 3 (“Crossley Tract”), Parkway Maintenance District No. 6A (“Fairport Development”), Parkway Maintenance District No. 6C (“Park Sonora Tract”), Parkway Maintenance District No. 7 (“Sunrise Norte Tract”), Parkway Maintenance District No. 8 (“Vintage Palms Tract”), Parkway Maintenance District No. 9 (“Flora Vista”), Parkway Maintenance District No. 10 (Zones 1 and 2) (“Mountain Gate”), and Landscape Maintenance District No. 12 (“Smoke Tree Commons”), (hereafter individually referred to as the “District”, or c ollectively referred to as the “Districts”), pursuant to the provisions of the Landscaping and Lighting Act of 1972, Part 2 of Division 15 of the Streets and Highways Code of the State of California, beginning with §22500 (hereafter referred to as the “Act”), that provides for the levy and collection of assessments by the City of Palm Springs to pay for the maintenance and services of improvements and all appurtenant facilities and operations related thereto; and
WHEREAS, an Engineer’s Report for each District , (hereafter referred to as the “Report”), has been prepared and filed with the City Clerk of the City of Palm Springs, (hereafter referred to as the “City Clerk”), and the Report identifies the levy of assessments c ommencing July 1, 2023, and ending June 30, 2024 (hereafter referred to as the “Subject Fiscal Year ”) in accordance with the Act; and the City Council did by previous Resolution preliminarily approve each Report; and
WHEREAS, the City Council has carefully examined and reviewed the Report as presented, and is satisfied with each and all of the items and documents as set forth therein, and finds that the levy has been spread in accordance with the special benefits received from the improvements, and the operation, maintenance and services to be performed, as set forth in the Report; and
WHEREAS, the City Council desires to levy and collect assessments against parcels of land within the Districts for the Subject Fiscal Year to pay the costs and expenses of the operation, maintenance, repair and servicing of improvements related thereto; and Item 2B - Page 14
W
HEREAS, the Report proposes the levy and collection of annual assessments less than or equal to the maximum assessment amounts previously approved by property owner petition or balloting, in accordance with the provisions of Article XIIID of the California Consti tution (Proposition 218); and
WHEREAS, the City Council has noticed and held a Public Hearing on July 24, 2023, regarding the Districts, and the proposed improvements and assessments for the Subject Fiscal Year , as described in the Report in accordance wi th the provisions of the Act and applicable provisions of Article XIIID of the California Constitution (Proposition 218).
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS DOES HEREBY RESOLVE AS FOLLOWS:
Section 1:
The above recitals are all true and correct.
Section 2:
Following notice duly given, on July 24, 2023, the City Council has held a full and fair Public Hearing to approve or amend the Report, the levy and collection of assessments related thereto, and has considered all oral and written statements, protests and communications made or filed by interested persons. The City Council has determined that the property owners have approved the assessments so presented in the Report in accordance with the requirements of Article XIIID of the California Constitution (Proposition 218).
Section 3:
Based upon its review (and amendments, as applicable) of the Report, a copy of which has been presented to the City Council and which has been filed with the City Clerk, the City Council hereby finds and determines that:
a) The land within each District will receive special benefit by the operation, maintenance, and servicing of certain improvements within the boundaries of such District.
b) Each District includes all of the lands receiving such special benefit.
c) The net amount to be assessed upon the lands within each District for the Subject Fiscal Year, is apportioned by a formula and method which fairly distributes the net amount among all eligible parcels in proportion to the special benefits to be received by each parcel from the improvements and services.
d) The assessment amounts described in the R eport do not exceed the maximum assessments previously established in accordance with the provisions of Article XIIID of the California Constitution (Proposition 218).
Section 4:
The Report and assessments as presented to the City Council and on file in t he Office of the City Clerk are hereby confirmed as filed.
Section 5:
The City Council hereby orders the proposed improvements to be made, which improvements are generally described as the operation, administration, maintenance, and servicing of street lighting, or streetscape landscaping including parkways and medians as well as public landscaped areas, including turf, ground cover, plants, shrubs, trees, irrigation and Item 2B - Page 15
dr
ainage systems, landscape lighting improvements, and appurtenant facilities and expe nses associated with the Districts. The Report describes any new improvements or substantial changes in existing improvements.
Section 6:
The assessments as confirmed shall be submitted to the County Auditor of the County of Riverside (the “County Auditor”), and the County Auditor shall enter on the County Assessment Roll opposite each eligible parcel of land the amount of levy so apportioned by the formula and method outlined in the Report, and such levies shall be collected at the same time and in the sa me manner as Riverside County taxes are collected pursuant to §22646 of the Act. After collection by Riverside County, the net amount of the levy shall be paid to the City Treasurer.
Section 7:
The City Treasurer shall deposit all money representing assessments collected by Riverside County for each District , and such money shall be expended only for the operation, maintenance and servicing of the improvements as described in Section 5.
Section 8:
The adoption of this Resolution constitutes the levy for the Subject Fiscal Year.
Section 9:
The City Clerk is hereby authorized and directed to file the levy with the County Auditor upon adoption of this Resolution.
ADOPTED THIS 24th day of July, 2023.
Scott C. Stiles, City Manager
ATTEST:
Brenda Pree, City Clerk
Item 2B - Page 16
C
ERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
I, Brenda Pree, City Clerk of the City of Palm Springs, hereby certify that Resolution No. ____ is a full, true and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on July 24, 2023, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
Brenda Pree, City Clerk
Item 2B - Page 17
CITY COUNCIL STAFF REPORT
07/24/2023
SUBJECT:
PUBLIC HEARING ON APPEAL OF CALIBLISS, LLC CONDITIONAL CANNABIS EXPIRATION (PERMIT NO. C-2019-096)
RECOMMENDATION:
Open the public hearing and receive public testimony and evidence.1.
Approve an extension by adopting a Resolution entitled, “A RESOLUTION OF
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA,
REGARDING THE APPEAL OF CALIBLISS, LLC FOR THE EXPIRATION OF CONDITIONAL CANNABIS PERMIT NO. C-2019-096.”
2. Attachments
Item 2B
CITY COUNCIL STAFF REPORT
DATE: JULY 24, 2023 PUBLIC HEARING
SUBJECT: PUBLIC HEARING ON APPEAL OF CALIBLISS, LLC CONDITIONAL CANNABIS EXPIRATION (PERMIT NO. C-2019-096)
FROM: Scott C. Stiles, City Manager
BY: Zachary Scalzo, Deputy City Attorney
Veronica Goedhart, Department of Special Program Compliance
SUMMARY:
The City Council will consider an appeal by CaliB liss, LLC, a California Corporation (“CaliBliss”), seeking to appeal for an extension of its Cannabis Permit No. C -2019-096 that expired on July 13, 2023 (“Permit”). The Permit, issued on June 14, 2020, was valid for an initial twenty-four month period pursuant to Palm Springs Municipal Code (“PSMC”) section 5.55.080(A)(4), and expired in June 2022. CaliB liss then sought and obtained a twelve-month extension of the Conditional Cannabis Permit, based on a showing of substantial progress toward becoming operational, and no unreasonable delay. CaliBliss is now requesting a second twelve- month extension of the Permit , pursuant to PSMC section 5.55.080, which allows a permittee to appeal to City Council for a second twelve- month extension. This appeal was made, and will be decided, pursuant to the procedural provisions of PSMC section 2.05 for appeals to the City Council and Resolution No. 24189, adopting Rules of Procedure for the City Council.
RECOMMENDATION:
1. Open the public hearing and receive public testimony and evidence.
2. Approve an extension by adopt ing Resolution No. _____, “A RESOLUTION OF
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA,
REGARDING THE APPEAL OF CALIBLISS, LLC FOR THE EXPIRATION OF CONDITIONAL CANNABIS PERMIT NO. C-2019-096.”
DEPARTMENT OF SPECIAL PROGRAM ACTION:
On April 6, 2023, CaliBliss managing member Andrew Mekhail reached out to the Department of Special Program Compliance requesting an extension of their local Conditional Cannabis Permit, C -2019-096. CaliBliss had previously requested a twelve- month extension in July 2022, which was granted on July 3, 2022, and expired July 4, Item 2B - Page 1
City Council Staff Report
July 24, 2023 - Page 2
CaliBliss, LLC - Appeal
2023. City staff advised Andrew Mekhail the extension would require an appeal to City Council.
CALIBLISS’S RESPONSE:
On May 30, 2023, CaliBliss noticed an appeal on the City’s Appeal Form, attached hereto as Exhibit A (“Notice”), in which CaliB liss appealed the expiration of the Permit in accordance with PSMC section 2.05. The appeal, which if granted will provide Cali Bliss an additional twelve months to complete construction and related entitlement and operations activities, is based on delays in the project caused by the COVID-19 pandemic. The basis for Cali Bliss’s appeal is set forth in in the Notice. Cali Bliss has provided no further written materials to support its appeal.
BACKGROUND:
On December 17, 2019, CaliB liss applied for entitlements to open a cannabis retail storefront dispensary and lounge at the proposed site of 560 S. Indian Canyon Drive in Palm Springs. The application disclosed Andrew Mekhail and John Mekhail as the corporate members, each with a 50% ownership interest. The applicants were advised that due to an over -concentration of cannabis businesses in the local vicinity, including one located within 60 feet of the proposed location, CaliBliss would have to apply for and obtain a distance waiver prior to the issuance of a Conditional Cannabis Permit. CaliBliss was required to undergo land-use review and the review and approval of an odor control plan prior to applying for the distance waiver.
The distance waiver request was heard on June 30, 2020. At the hearing, the project was presented as a 671 square foot project, with the lounge encompassing 395 square feet.
Due to limited available parking, the lounge would be limited to seating for three.
Additional concerns raised by Council included the two residential units located above the proposed business location. At the hearing, Mayor Geoff Kors and Mayor Pro Tem Christy Holstege both expressed their c oncerns and desire to maintain the residential units at reasonable rental rates. The distance waiver was granted by a Council vote of three in favor and two opposed, and the resolution of approval was amended to require that the two rental units remain rental units as long as the business exists. 1 Upon approval of the
distance waiver, a Conditional Cannabis Permit was issued on July 14, 2020, with an expiration date of July 13, 2021. The Conditional Cannabis Permit allows applicants to initiate and obtain State and local entitlements and conduct other “preliminary” activities, but does not allow applicants to commence actual operations of any Adult-Use Cannabis Activity (as defined by PSMC section 5.55.050), including cultivation, distribution, on-site consumption, or sales.
1 Amendment made by Mayor Geoff Kors (see June 30, 2020, Council Meeting at 4:15:48 https://palmspringsca.new.swagit.com/videos/72238)
Item 2B - Page 2
City Council Staff Report
July 24, 2023 - Page 3
CaliBliss, LLC - Appeal
July 2021 Extension:
On June 4, 2021, CaliBliss, by and through their consultant, submitted a request for a twelve-month extension of their Conditional Cannabis Permit. The request provided a timeline outlining the work completed and a projected timeline for completion. Prior to this date, no communications were received indicating delays due to the COVID -19 pandemic.
Timeline through June 4, 2021:
• June 30, 2020, Approval of Distance Waiver
• July 14, 2020, Conditional Cannabis Permit issued
• January 21, 2021, Administrative Architectural Review
Anticipated Timeline to Completion:
• July 8, 2021, Architectural Approval by City Council
• July 12, 2021, Building Application Resubmittal
• January/February 2022 Final Inspection
• February / March 2022 Business Opening Date
Based on the information provided an initial twelve-month extension was granted in June 2021.
On June 9 , 2022, a second status update was received from CaliBliss’s consultant providing a general construction timeline. This update stated an estimated October 2022 construction completion date and a business opening date of November 2022. An additional extension was provided based on the representation that the business would be operational by the end of the year; that extension was granted through July 13, 2023 (twelve months from the expiration of the first extension granted by the Council).
July 3, 2023, Permit Expiration:
On April 6, 2023, Andrew Mekhail, CEO for CaliBliss, requested an additional extension based on delays related to the COVID-19 pandemic. His email estimates a date for project completion between twelve to twenty -four months. It was communicated to Andrew Mekhail that his request would require an appeal to City Council pursuant to PSMC section 5.55.080, Adult-Use Cannabis Permit Application Process , and would require CaliBliss to demonstrate substantial progress toward becoming operational. Additionally, if this extension is granted, PSMC section 5.55.080(A)(4) requires the permittee to pay a penalty determined by City Council and not to exceed ten thousand dollars ($10,000).
The Notice was filed on May 30, 2023, on direction from Staff.
Item 2B - Page 3
City Council Staff Report
July 24, 2023 - Page 4
CaliBliss, LLC - Appeal
ANALYSIS:
PSMC section 5.55.080 requires that a p ermittee demonstrate measurable progress toward becoming operational and no unreasonable delay. This specifically includes CaliBliss’s identification of any unique factors that impeded the business from becoming operational within the provided timeframe. CaliBliss has stated that the basis for this appeal is delays related to the COVID-19 pandemic.
In its Notice of Appeal, CaliBliss discussed generally the pandemic’s disruption to “daily life and business” and claimed that CaliBliss’s project “has not been immune to its effects.” Although CaliBliss has provided no specific facts as to what impacts from the pandemic impeded its progress toward becoming operational , except for a general reference to “numerous challenges to the construction industry ,” as a practical matter , Staff acknowledges that the pandemic may have resulted in a portion of CaliBliss’s delay given the well- known impacts to construction projects. For instance, for any construction project, cost escalation and cash flow problems impeded many projects nationwide.
Further, CaliBliss indicated that it has already “invested over $1.5 million in the project.” Additionally, CaliBliss attached several plan review comments from the City dated in or about 2023, indicating that it has made progress toward receiving the necessary entitlements to be able to seek an Adult -Use Cannabis Permit under the provisions of PSMC Chapter 5.55. Staff is aware that Cali Bliss submitted these plans to the Building Department on March 28, 2023.
Based on the investment to date, previous extensions, unique circumstances arising from COVID-19, and the fact that CaliBliss has now submitted plans for review and approval, there are sufficient facts for the Council to determine that the delay cited by CaliBliss is not unreasonable, and that CaliBliss has made sufficiently measurable progress towards becoming operational so as to support the grant of a final one-year extension.
CaliBliss also cites its desire to make non-cannabis business upgrades to the property that will require “additional time to consider.” This is not relevant to the determination of measurable progress that is before the Council at this time, because it pertains to a part of the overall project that is not specifically connected to the cannabis operations authorized by the Conditional Cannabis Permit for which an extension is sought . Any determination of measur able progress made in this appeal hearing must be based on CaliBliss’s current plan for cannabis operations that has been developed over three years.
Any delay to achieving such operations that might occur in connection with other project factors can be separately assessed at a future date, in addition to any other issues or requests generated by Cali Bliss. Those facts are not relevant to the current question of whether CaliBliss has made a sufficient showing of substantial progress toward its adult- use cannabis business becoming operational, and are not considered as part of this appeal hearing. The City Council reserves jurisdiction to address issues not specifically related to the request for a Conditional Cannabis Permit extension at a future date, in accordance with all applicable provisions of the PSMC.
Item 2B - Page 4
City Council Staff Report
July 24, 2023 - Page 5
CaliBliss, LLC - Appeal
CONCLUSION:
Pursuant to PSMC section 5.55.080, the decision before the City Council is (1) whether to approve a final twelve- month extension of Conditional Cannabis Permit No. C -2019- 096, based on a finding that the CaliBliss has demonstrated substantial progress toward becoming operation and no unreasonable delay; and (2) if the extension is approved, the amount of the penalty to be charged to Cali Bliss (not to exceed $10,000) . Pursuant to PSMC section 2.05.080, CaliBliss, LLC (the appellant) bears the burden of establishing cause supporting an extension of the Conditional Cannabis Permit.
The PSMC mandates a Council decision on this appeal within fifteen (15) days after the hearing; however, this time may be extended for a period of up to ninety (90) days. (See PSMC section 2.05.100). In the event CaliBliss fails to appear for the public hearing, that failure to appear shall constitute grounds for the denial of the appeal.
FISCAL IMPACT:
None at this time.
REVIEWED BY:
Department Director: Veronica Goedhart
Assistant City Manager: Teresa Gallavan
City Manager: Scott Stiles
ATTACHMENTS:
A. Appeal – CaliBliss LLC
B. City Conditional Cannabis Permit No. C-2019-096
C. Emails Re: Extension Request
D. Resolution
Item 2B - Page 5
AƩachment A
Item 2B - Page 6
Item 2B - Page 7
Application
Case
No.:
C-2019-096
CITY
OF
PALM
SPRINGS
CANNABIS
RELATED
BUSINESSES
AND
ACTIVITIES
CONDITIONAL
PERMIT
3200
E
TAHQUITZ
CANYON
WAY,
PALM
SPRINGS,
CALIFORNIA
92262
(760)
322-8382
THIS
PERMIT
CERTIFIES
THAT:
CALIBLISS,
LLC
DBA
CANNABLISS
Project
Address:
560-562
S
Indian
Canyon
Drive,
Palm
Springs,
California
92262
Owner
Name:
CALl8LISS,
LLC
Phqne:
(562)
676-6469
A
Califomia
Limited
Liability
Corporation
Has
been
granted
a
CONDITIONAL
REGULA
TORY
PERMIT
to
cond£Jt3t
the
following
business/es
under
City
Ordinance
No.
2005,
otherwise
known
as
the
CANNABIS
RELATED
AND
BUSINESSES
AND
ACTIVITIES
ORDINANCE
of
the
City
of
Palm
Spnngs,
subject
to
the
provisions
of
other
pertinent
laws,
ordinances
and
related
administrative
regulations.
THIS
PERMIT
DOES
NOT
AUTHORIZE
THE
HOLDER
TO
COMMENCE
OPERATIONS.
181
5.55.095
Dispensary
5.55.096
Cultivation
Type
1 Specialty
Outdoor
181
5.55.095
(6)
Consumption
Lounge
Type
1A
Specialty
Indoor
5.55.097
Manufacturing
D
Volatile
(Type
7)
Type
18 Specialty
Mixed
Light
D
Non-Volatile
(Type
6)
D
Non-Volatile
Infusions
(Type
N)
D
Non-Volatile
Packaging
and
Labeling
(Type
P)
Type2
Small
Outdoor
Type.2A
Small
Indoor
5.55.098
Testing
Facility
Type3
Outdoor
5.55.099
Transportation
and
Distribution
Type:
_
D
Type
3A
Indoor
Type
38 Mixed
Light
D
Type4
Nursery
Description:
Adult-Use
Cannabis
Dispensary
and
Consumption
Lounge.
CONDITIONS:
Permit
does
not
allow
the
permit
holder
to
commence
cannabis
related
business operations.
Permit
does
not
reflect
the
issuance
or
guarantee
the
issuance
of
any
building
permit(s)
or
business
license
.
Permit
holder
must
obtain
all
necessary
State
and
Local
approvals
prior
to
commencement
of
cannabis
related
business operations.
Failure
to
comply
with
these
conditions
will
result
in
immediate
revocation
of
regulatory
permit.
A~roved
for
and
by
the
authority
of
the
City
Manager
of
the
City
of
Palm
Springs,
this
5 day
of
J.J'<?
, 2022.
By:
~
~
Justin
Clifton,
City
Manager
DATE
OF
ISSUANCE:
______
0 __ 7/ .... 04 ..... l,_,20-2
.... 1
DATE
OF
EXPIRATION:
__
0....,7
..... I0.._3/....,.20...,..2
..... 3
Exhibit A
Item 2B - Page 8
Item 2B - Page 9
-------,------------------------·· ........ --·----............... _ ............... _ ......... ··------·- Appeal Form
Formulario de Apelaci6n
City of Palm Springs
TEL (760) 323-8204 I FAX (760) 322-8332
Reserved for Filing Stamp
RECEIVED
MAY 3 0 2023
Cannabis related Business & activities Condition Permit CaliBlss LLC Minor Architectural Improvements to Cannabi Dispensary located at 562 S Indian Canyon Drive
Exp 7/04/2023 Case No. 3.4316
CaliBliss LLC Request for Renewal of Conditional Permit for Cannabis Related Businesses & Activities See attached additional sheet
,
This tompleted form must be sent to:
City of Palm Springs Office of the City Clerk
3200 E. Tahquitz Canyon Way, Palm Springs, ~ 92262
Item 2B - Page 10
cAuTsuss
OtS.Vl
1'
.
10 '
,
r,.
o
t Ol
sG,(
Dear
City
Council
Members,
J am
,vriting
to
request
a renewal
of
our
construction
perm
it due
to
the
delays
caused
by
the
Covid-19
pandemic.
The
pandemic
has
had
a significant
impact
on
our
ability
to
complete
the
construction
within
the
timeframe
specified
by
the
pennit.
As
a company,
we
have
invested
over
$1.5
million
in
the
project
and
have
also
purchased
commercial
real
estate
that
is
critical
to
the
success
of
the
project.
f urthem10re,
we
would
like
to
request
additional
time
to
consider
changes
and
submit
upgrades
to
the
property
for
your
approval. As
you
are
aware,
the
pandemic
has
caused
unprecedented
disruptions
to
dai.1y
life
and
businesses,
and
our
construction
project
has
not
been
immune
to
its
effects.
The
pandemic
has
presented
numerous
challenges
to
the
construction
industry,
inc1uding
supply
chain
disruptions,
workforce
shortages,
and
health
and
safety
concerns.
Despite
our
best
efforts,
our
project
has
experienced
significant
delays
that
have
made
it impossible
to
complete
the
work
within
the
original
timeframe.
The
measures
taken
to
combat
the
pandemic,
such
as
social
distancing.
travel
restrictions,
and
supply
chain
disruptions,
resulted
in
significant
delays
and
difficulties
in
completing
the
construction
on
time.
In
addition
to
the
delays
caused
by
the
pandemic,
we
are
considering
submitting
upgrades
to
the
property
for
your
approval.
These
upgrades
will
require
additional
time
to
consider
and
prepare.
and
we
believe
that
a renewal
of
our
permit
would
provide
the
necessary
time
to
submit
these
upgrades
for
your
review.
We
are
committed
to
completing
the
construction
to
meet
the
city's
requirements,
and
we
are
confident
that
we
can
do
so
with
the
additional
time.
Furthermore,
we
believe
that
the
upgrades
to
the
property
will
improve
the
overall
quality
and
value
of
the
property.
benefiting
both
the
community
and
the
city.
Thank
you
for
your
understanding
of
the
situation
and
your
consideration
of
our
request.
We
appreciate
your
efforts
to
ensure
that
the
citts
requirements
are
met
, and
we
look
forward
to
continuing
to
work
with
you
on
this
project.
Sincerely, Andrew
Mekhail.
CaliBHss
LLC,
Managing
Partner
Item 2B - Page 11
Item 2B - Page 12
cAuf
suss
The
renderings
below
depict
the
enhancements
and
modifications
that
we
are
excited
to
implement
For
comparison,
visual
representations
of
the
planned
improvements
that
are
currently
in
progress
are
also
included.
A
critical
change
entails
relocating
the
consumption
lounge
from
its
current
location
on
the
first
floor
to
a new
area
on
the
second
floor
of
the
premises.
Here
are
the
specific
changes
that
will
be
made:
•
The
consumption
lounge
will
be
relocated
from
the
first
floor
to
the
second
floor.
•
The
seating
area
will
be
enhanced
with
new
furniture
and
decorations.
•
The
lighting
will
be
improved
with
new
lighting
fixtures.
• A
new
bar
will
be
added
to
the
lounge.
•
The
sound
system
will
be
improved
with
a new
sound
system.
We
believe
that
these
changes
will
create
a more
inviting
and
comfortable
lounge
for
our
customers.
We
are
eager
to
complete
the
renovations
and
share
the
new
lounge
with
you.
(Updated)
Item 2B - Page 13
---·---···--------
CALI TBLI ss
OISl'll'I.S,\ll'J ·\"'O lOL '°"Gl
L1:-.
(Updated)
Item 2B - Page 14
CALl'fBLISS
(Current)
Item 2B - Page 15
CALI
TBu
ss
The
next
set
of
documents
will
be
the
first
reviews
of
the
current
plans
by
Bureau
Veritas,
the
City
of
Palm
Springs
Fire
Department,
Building
&
Safety,
and
Engineering
Services
Department
We
anticipate
that
the
plan
corrections
will
be
completed
and
submitted
on
May
22,
2023.
Item 2B - Page 16
City
of
Palm
Springs
04/20/2023 Applicant
Name:
Andrew
Mekhail
Address:
560
S.
Indian
Canyon
Dr.
Phone
Number:
Applicant
Email:
Occupancy:
A-2/M
Type
of
Construction:
V -B
Sprinklers:
Deferred
Permit
Fire
Sprinklers
Stories:
2 Floor
Area
(s.f.):
1,579
Fire
Hazard
Severity
Zone/
WUI:
No
~I
IJV.E'-9-;.
'
-,. "'
1s,s
BUREAU VE
fill
AS
AHJ
Application/Pennit
#2023-1218
BVNA
#18615572
Project
Description:
Exterior
Improvements
Project
Address:
560
S.
Indian
Canyon
Dr.
Application/Pennit
#:
2023-1218
Bureau
Veritas
has
completed
the
first
plan
review
of
the
below
listed
documents
on
behalf
of
the
City
of
Palm
Springs
Building
&
Safety
Department:
GENERAL
INSTRUCTIONS
1. This
plan
review
has
been
made
to
verify
conformance
to
minimum
requirements
of
codes
and
ordinances
adopted
by
the
City
of
Palm
Springs.
Codes
in
effect
for
this
project
include
the
2022
editions
of
the
California
Building
Code
(CBC),
California
Green
Building
Code
(CGBC),
California
Plumbing
Code
(CPC),
California
Mechanical
Code
(CMC),
California
Electrical
Code
(CEC),
and
California
Energy
Code
(CEnC).
The
CBC
is
based
on
the
2022
editions
of
the
International
Building
Code,
which
was
published
by
the
International
Code
Council.
The
CPC
and
CMC
are
based
on
the
2022
edition
of
the
Uniform
Plumbing
and
Mechanical
Codes,
respectively,
which
were
published
by
IAPMO.
The
CEC
is
based
on
the
2022
edition
of
the
National
Electrical
Code
published
by
the
National
Fire
Protection
Association
(NFPA).
Applicable
code
sections
are
referenced
after
each
item
in
this
list.
2. These
plans
and
documents
have
been
reviewed
for
compliance
with
the
applicable
code
requirements
and
instructions
of
the
jurisdiction.
The
stamping
of
these
plans
shall
not
be
held
to
permit
or
be
an
approval
of
a violation
of
any
applicable
codes
and/or
standards
nor
relieve
the
owner,
design
professional
of
record
or
contractor
of
compliance
with
any
applicable
codes
and/or
standards.
Plan
review
of
documents
does
not
authorize
construction
to
proceed
in
violation
of
any
federal,
state,
nor
local
regulation.
3. The
review
does
not
necessarily
include
errors
and
omissions.
Complete
compliance
is
the
responsibility
of
the
designer.
4. All
comments
shall
be
resolved
on
the
plans
prior
to
the
recommendation
to
the
governing
body
for
approval.
5. The
comments
identified
in
other
sections
of
this
review
require
clarifications/corrections
before
this
plan
check
can
be
completed.
6. For
reference for
explanations
in
the
examiner
's comment
sections,
italic
text
refers
to
the
initial
submittals,
bold
text
on
second
submittals,
and
underlined
text
on
third
submittals.
7. Please
an.notate
your
response
in
the
areas
on
each
comment,
please
see
the
comment
section,
8. Submit
a list
showing
any
changes
to
the
plan
or
previously
submitted
documents
that
are
not
the
result
of
the
plan
check
comments.
Please
'·cloud"
and/or
"delta''
all
revisions
made
on
plans
due
to
this
comment
list
as
well
as
any
other
design
changes.
Pagel
of
6 Item 2B - Page 17
City
of
Palm
Springs
04/20/2023
• ;.11
'l.f')
¢
·.
~
~
,.
"'
1828
BUREAU 'JERllAS
AHJ
Application/Pennit
#2023-1218
BVNA
#18615572
IN
ORDER
TO
PROCESS
THIS
PLAN
REVlEW
PLEASE
PROVIDE
THE
NAME
AND
PHONE
NUMBER
OF
THE
INDIVIDUAL
WHO
PREPARED
THESE
PLAN
REVIEW
RESPONSES NAME:
______________
PHONE:
__________
_
Respectfully
Submitted
,
Mildred
Renteria
Plan
Check
Engineer
250
N.
Westlake
Blvd.,
Ste.
150,
Westlake
Village,
CA,
91362
Matthew
Godinez
P.E.
Plan
Check
Supervisor
250
N.
Westlake
Blvd.,
Ste.
I 50,
Westlake
Village
, CA,
91362
Please
write
the sheet
number
, detail
number,
alld/or
location
indicating
where
the
commem
is
located
Please
be
specific
as
to
where
convnent
IJems
have
been
addressed
so
that
recheck
nuzy
be
expedited.
To
aid
in
the
plan
review
process
-
please
indicote
in
the
SPflCe
adjacent
10 each
co
mment
or
on
a separate
sheet
, the
sheet
and
the
exact
location
on
the
sheet
wltere
correc1ions
have
been
made
(e
.g.,
De1ai/
S of
Sheet
J)
. Please
"dm
1d
" amffi>r
''delta
" till
revisions
made
cm
pltms
due
ro
this
comment
list
as
well
as
any
other
design
change
s.
JURISDICTIONAL
COMMENTS
I.
Submit
plans
and
supporting
documents
in
electronic
format
to
[email protected].
Plans
submitted
in
electronic
format
must
have
restrictions
remove
from
the
security
settings.
Electronic
plans
with
restrictions
to
markups,
printing,
or
stamping
wil
I not
be
approved.
If
the
file
is
larger
than
25MB,
please
upload
plans
to
https:
//spaces.hightail.com!uplink/PSBuilding
Email
subject
line
should
read:
RE-CH
ECK
for
(PERMIT
# &
ADDRESS)
RESPONSE:
________________________
_
_
ARCHITECTURAL
COMMENTS
-MILDRED.RENTERIA
@
BUREAUVERITAS.COM
2. Please
revise
the
orientation
of
the
North
Arrow
in
cover
sheet
GO-
I , it does
not
match
the
orientation
stablished
in
site
plan/
At
-3
and
floor
plan
/ A 1-4.
RESPONSE:
__________________________
_
3. Please
remove
the
following
note
from
the
cover
sheet
·'T
his
set
for
Architectural
approval
only
and
is
not
intended
to
be
the
construction
permit
set.
RESPONSE:
________
_______________
__
_
4. Provide
a statement on
the
title
sheet
of
the
plans
that
this
project
shall
comply
with
Title
24 and
2022
California
Building
Code
(CBC),
California
Mechanical
Code
(CMC),
California
Plumbing
Code
(CPC),
California
Electrical
Code
(CEC),
California
Green
Building
Standards
Code
(CGBSC),
and
California
Energy
Code
(CEnC).
[§
107.2
CBC]
Regulating
codes
in
cover
sheet
GO-I
using
old
code
cyc
le
20/9
,
please
update
all
code
not
es
in
plans
.
RESPONSE:
_____
______________
__
____
_
_
Page
2 of6
Item 2B - Page 18
City of Palm Springs
04/20/2023
AHJ Application/Permit #2023-1218
BVNA #18615572
VERITAS
5. Provide all the corresponding keynotes shown in site plan/GO-I.
RESPONSE: __________________________ _
6. Per exterior elevation notes in sheet A2-J, provide the following:
a. Per keynote 09 01, please provide exterior soffit detail 9/Dl-0.
RESPONSE: _______________________ _
b. Per keynote 26 OJ, provide new accent lighting )amps detail 11/Dl-O.
RESPONSE: _______________________ _
7. Please provide keynote 22 03 on Proposed Floor Plan/ A J -3.
RESPONSE: ------------------------------
8. Please revise Floor plan in sheet A J-5. labeled as ·•First Floor Plan", it appears such t1oor plan corresponds to 2nd floor. Provide the following:
a. Specify use for space located on second floor and specify occupancy group.
RESPONSE: ______________________ _
b. Provide fire separation between first and second floors occupancies per Table 508.4 CBC RESPONSE: _____________________ _
9. Provide a note on the plans stating: "Penetrations of tloor/ceiling shall be protected with through penetration fire stops and membrane-penetration fire stops in accordance with CBC Sections 714.3. I & 714.3.2 Specify on plans for the corresponding mechanical system penetrations going though the roof.
RESPONSE: __________________________ _
10. Please provide a window and door schedule, clearly specify what windows are new. Provide window/door dimensions, hardware type, U-factor, SHGF value, and specify safety glazing where required per 2406.4 CBC (see next comment).
RESPONSE: ________________________ _
1 1. Exit doors should be a minimum size of 3 feet by 6 feet 8 inches. The clear width shall be 32" when the door is open 90 degrees. Maximum leaf width is 4 feet.[§ 1010.1.1 CBC] Please provide dimensions Jot all doors door in proposed.floor plan!Al-3 so that means of egress requirements can be verffied RESPONSE: _________________________ _
12. Provide detail 20/ A 1 ~ 1 per site plan/G0-1 (located at accessible parking).
RESPONSE: ________________________ _
13. Visual exit signs are required whenever two exits are required. Evel)' l 00 feet. Show all required exit sign locations. [§ IO 13.1 CBC] Please clear{v show exist signs locations on plans.
RESPONSE: ------------------------------
Item 2B - Page 19
City of Palm Springs
04/20/2023
BUREAU
AHJ Application/Permit #2023-1218
BVNA #18615572
ACCESSIBILITY COMMENTS [email protected]
14. One in six, but not less than one, accessible parking spaces shall be a van accessible parking space. [§I 1B- 208~2.4 CBC] AU van parking spaces shall be permitted to be grouped on one level. [§ J 18-208.3.1 CBC] Per site plan/AJ-2 ADA parking outside of building cannot be considered as van accessible because access aisle is located to the left of the driver side thus, second ADA parking must comply with the requirements for van accessible. Please see comments below for requirements.
RESPONSE: ------------------------------
15. Car parking spaces shall be 108" wide ntlnimwn and van parking spaces shall be 144" wide minimum.
Parking spaces shall be marked to define width and shall have an adjacent access aisle. [§ t l B-502.2 & Fig. 11 B-502.2 CBC] Please revise dimension for ADA parking space shown in cover sheet/GO-I as 8 '10 " (106 inches) wick. Minimum width for van accessible parking should he l-14 inches (12 feet). See next comment for exception.
RESPONSE: __________________________ _
16. Van parking spaces shall be permitted to be 10s·· \\<ide minimum where the access aisle is-96'' wide minimum. [§1 lB-502.2 Exception CBC] Please provide minimum width of 108tt (9 fl) if access aisle minimum width is 96" (8 ft). Per site plan, access aisle is proposed to be 5ft min.
RESPONSE: _____________________________ _
17. Car and van parking spaces shall be 216" ( 18' .. ff') long minimum, [ § 1 t B-502.2 & Fig. 11 B-502.2 CBC] Per Site Plan/GO-I and Al-2, it appears there is a post with sign blocking/ull acce.vs to the van accessible parking (call out 20/Al-1). Please revise, see next comment for alternative installation o/ADA parking signage.
RESPONSE:. _________________________ _
18. Signs may also be permanently posted on a wall at the end of the parking space. [§ 11 B-502.6.3 CBC] Per site plan, it appears there is a proposed post to install ADA parking signage. Please specify parking sign to be posted on wall to avoid blocking access to parking space.
RESPONSE: _________________________ _
19. Exit doors shall be readily openable from the egress side without the use of a key, special knowledge or efrort. [§ 10 I 0.1.9 CBC] Please note on plans or door schedule.
RESPONSE: __________________________ _
20. Handles, pulls, latches, locks and other operable parts on doors and gates shall not require tight graspingi tight pinching or twisting of the wrist t~ operate, (§ 11 B-404.2, 7 CBC] Specify door hardware on door schedule.
RESPONSE: ________________________ _
21, Operable parts such as hardware shall be 34" minimum and 44" maximum above the finished floor or ground. [§118-404.2.7 CBC] Please provide a door detail showing hardware minimax hardware heightfromjloor, RESPONSE: ________________________ _
22. Every doorway which is located within an accessible path of travel shall be of a size as to permit the installation of a door not less than 3' in width and not less than 6' -8'' in height. When installed, exit doors shall be capable of opening at least 90 degrees and shall be so mounted that the clear width of the exit is not less than 32''. measured between the face of the door and the opposite stop. [§11 B-404.2.3 CBC] RESPONSE: ________________________ _
Item 2B - Page 20
City
of
Palm
Springs
04/20/2023
AHJ
Application/Permit
#2023-1218
BVNA
#18615572
BUREAU VEA!TAS
23 . Swinging
doors
and
gates
shall
have
maneuvering
clearances
complying
with
table
11 B-404.2.4.
l.
Please
show
in
Proposed
Floor
Plan/A
/-3
minimum
maneuvering
clearances
at
the
following
locations:
a.
Show
a minimum
of
12''
on
push
side
at
latch,
for
door
from
Secure
Vestibule
to
Sales
Room.
RESPONSE:
_______________________
_
b.
Showa
minimum
of
12"
on
push
side
at
latch,
for
exit
door
at
Secure
Vestibule.
RESPONSE:
________
_
______________
_
c.
Showa
minimum
of
l 8" on
pull
side
at
latch
, for
door
from
Secure
Vestibule
to
Safe/Record.
RESPONSE:
______________________
_
PLUMBING
COMMENTS
-MATl'[email protected]
24. Provide
DWV
plans
for
proposed
restrooms
and
service
sink
room
on
A 1-3.
RESPONSE:
__________________________
_
MECHANICAL
COMMENTS
-MA
TTHEW.GODINEZ@BUREAUVERIT
AS.COM
25. Update
applicable
code
cycle
on
M-00
l from
2016
to
2022
codes.
RESPONSE:
_________________________
_
26. Exhaust
not
found
in
the
bathrooms
on
M-
J 00,
not
less
than
20cfm
continuous
ventilation
shall
be
provided.
[Table
403.7
CMC]
RESPONSE:
________________________
_
ELECTRICAL
COMMENTS
-MA
[email protected]
27. Provide
an
illuminated
exit
sign
front
exit
from
waiting
room.
[ § 1013
.1
CBC]
RESPONSE:
__________________________
_
28. Provide
lighting
with
emergency
backup
power
at
rear
exit
sign/vestibule
area.
[§1008.2
CBC]
RESPONSE:
________________________
_
29. Show
daylit
area,
sensors,
and
lighting
controls
for
waiting
area
with
full
height
glazing.[§
130.l(d)(
1)
CEnC] RESPONSE:
__________________________
_
ENERGY
COMMENTS
[email protected]
30. Provide
new
updated
energy
report
complying
with
new
2022
code
cycle.
RESPONSE:
________________________
_
31. G1ass
marked
as
wall
on
page
4 of
energy
report
when
it should
have
been
marked
as
fenestration.
Please
revise
all
fenestration
and
envelop
in
the
energy
report.
RESPONSE:
________________________
_
32. Per
page
5 of
the
energy
report,
it is
specified
a window
area
of
46 s.f.
and
glass
doors
21 s.f.
however,
per
plans,
such
area
does
not
appear
to
be
correct.
Additionallyi
per
page
4 of
the
energy
report,
total
fenestration
on
the
west-facing
equals
2 t s.f.
and
per
west
elevation,
fenestration
appears
to
be
greater
than
21 s.f.
Please
revise
all
fenestration
presented
in
the
energy
report
to
match
plans.
RESPONSE:
________________________
_
Page
5 of
6 Item 2B - Page 21
City
of
Palm
Springs
04/20/2023
Al-lJ
Application/Permit
#2023-12
l 8
BVNA
#18615572
BUREAU
GREEN
BUlLDING
COMMENTS
[email protected]
33. Please
provide
2022
California
Green
Building
Standards
Code
sheets.
Refer
to
the
following
link
for
updated
sheets:
https:
//content.civicplus.com/api
/assets/0a42985e-a880-4403-8115.
7bb283009449
RESPONSE:
__________________________
_
STRUCTURAL
COMMENTS
,.MILORED.RENTERJA@BUREAUVERIT
AS.COM
34. Provide
manufacture
Iisti
.ng
for
the
proposed
owning
to
verify
installation
requirements.
No
calculations
found
for
connection
on
detail
3/SD-l,
for
the
support
of
the
owning.
RESPONSE:
________
____________
_____
_
35. Revise
detail
call
outs
in
sheet
S2•0.
Call
outs
for
SS
glass
shoe
base
to
steel
beam
and
beam
to
beam
rigid
connection
appear
to
be
located
in
sheet
SD
1-0
(details
I and
2).
RESPONSE:
________________________
_
36. Please
revise
details
t &
2/SD
1-0,
provide the
following:
a.
Dimensions. RES.PONSE:
_______________________
_
b.
Notation. RESPONSE:
______________________
_
c.
Weld
size.
RESPONSE:
________________________
_
d.
Provide
statement
for
special
im;pection
required
for
field
welding.
RESPONSE:
--------------------------
37. Provide
manumcture
installation
instructions
for
glass
railing
shown
in
detail
4/SDl-0.
Additionally
. per
note
in
detail,
it is
specified
a possible
maximum
height
of
10 feet,
please
clarify.
RESPONSE:
-----------------------------
38. Revise
title
fo-r
Plan
in
S2-0
. Per
plans
, floor
plan
has
been
labeled
as
existent
however;
plan
appears
to
be
a proposed
plan.
RESPONSE:
_________
_______________
_
END
OF
COMMENTS
Page
6 of6
Item 2B - Page 22
Date:
4/26/2023
To:
CITY
OF
PALM
SPRINGS
TRANSMITTAL
FORM
Subject:
CML-
Cannabis
Facility
Address:
560
S.
Indian
Canyon
Dr
.
Permit#:
2023-1218
Plan
Checker:
Tanner
Valenti
Fire
Plans
Examiner
II
Status: _
Plan
is
approved
Plans
were
received
for
the
following
type
of
project:
_
Fire
Sprinklers
_
Plan
is
approved
with
conditions
_
Fixed
Fire
Protection
System
_
Plan
is
approved
with
redlines
_
Fire
Alarm
System
.lL
Plan
requires
corrections,
see
attached
list
_
Underground
Fire
Service
_X_
Architectural Other:
The
plans
submitted
for
the
above-referenced
project
have
been
reviewed.
The
following
information
is
needed
to
show
compliance
with
the
2022
California
Building
and
Fire
Code
(CBC
and
CFC),
as
well
as
other
codes
and
standards
as
amended
by
the
State
of
California
and
the
City
of
Palm
Springs.
Remarks: INSTRUCTIONS: Provide
a written
response
for
each
correction
on
this
correction
list.
You
may
write
directly
on
this
list
or
provide
a separate
UResponse
List''
which
addresses
each
correction
item
by
item.
Please
incorporate
all
corrections
into
the
drawings
Cloud
or
otherwise
call
out
all
corrections.
Item 2B - Page 23
Plan Review Comments
1. Snail provide the oe_cupancy classification and construction type as part of the project data on the cover sheet.
Response __________________________ _
2. Shall state whether the existing structure is sprinklered or non-sprinklered as part of the project data on the cover sheet.
Response. __________________________ _
3. Shall revise the regulating codes to reflect the 2022 edition of the California Codes.
Response __________________________ _
4. Shall add Fire Alarm and Underground Fire Service to list of Deferred Permits.
Response __________________________ _
5. Shall provide an egress plan with travel distances and exit widths to the plan set Response __________________________ _
6. Shall provide occupant loads for every room and space on the plan set Response __________________________ _
7. Shall provide door hardware schedule and notes to the plan set.
Response __________________________ _
8. Will new facility use access control or magnetic locks to secure portions of the building? If so, please provide information on the plan set Response __________________________ _
9. Will hazardous materials be stored on site? If so, please provide locations and information on the plan set
Response __________________________ _
10. Shall revise sheet A 1-5 to reflect second floor, not first floor.
Response __________________________ _
Item 2B - Page 24
11. What
is
the
intended
use
for
the
space
on
the
second
floor?
Sheet
A 1-5
states
that
its
existing
to
remain.
Response
___________________________
_
12. Shall
provide
location
and
note
for the
Knox
Box
on
the
elevation
detail.
Knox
, Boxes
shall
be
installed
no
greater
than
5'
from
finish
floor.
Response
___________________________
_
13. Shall
provide
fire
extinguisher
locations
and
note
on
the
floor
plan.
Response
___________________________
_
Item 2B - Page 25
Date:
April
28. 2023
To:
Buikling
&
Safety
Department
From:
Engineering
Services
Deparf:ment
APPLICATION
FOR
APPROVAL
OF
A
DISPENSARY
&
LOUNGE
LOCATED
AT
560
S
INDIAN
CANYON
DRIVE.
(APN
508-121-004),
SECTION
23,
TOWNSHlP
4 S.
RANGE
4 E.
S.B.M.,
BLDG.
P.C.
NO.
2023-1218,
ENG.
FILE
NO.
4801.
The
.Engineering
Services
Department
recommends
that
if
this
application
is
approved,
such
approval
is
subject
to
the
following
conditions
being
completed
in
compliance
with
City
standards
and
ordinances
.
Before
fmal
acceptance
of
the
project,
all
conditions
listed
below
shall
be
completed
to
the
satisfaction
of
the
City
Engineer.
All
Grading
Plans.
Improvement
Plans,
Required
Studies
and
Documents
listed
below,
must
be
submitted
to
Engineeri
•ng
Services
Department
for
review
and
approval.
STREETS ENG1
.
ENG2. ENG3. ENG4.
The
Engineering
Services
Department
recommends
deferral
of
off-site
improvement
Items
(Identified
as
•Defel'l'fJd1
·at
this
time
due
to
lack
of
full
improvements
in
the
immediate
area.
The
owner
shall
execute
a
street
improvement
covenant
agreeing
to
construct
all
required
street
improvements
upon
the
request
of
the
City
of
Palm
Springs
City
Engineer
at
such
time
as
deemed
necessary.
The
covenant
shall
be
executed
and
notari%ed
by
the
property
owner(s)
prior
to
approval
of
the
Grading
Plan
or
issuance
of
grading
or
building
permits
. A
current
title
report:
or
a
copy
of
a
current
tax
bill
· and
a
copy
of
a
vesting
grant
deed
shall
be
provided
to
verify
current
property
ownership.
A
covenant
graparation
fee
in effect
at
the
time
tbll
the
cownant
is
submitted
shall
be
paid
by
the
appHcant.
Any
improvements
within
the
public
right-of-way
require
a
City
of
Palm
Springs
Encroachment
Permit.
AH
improvements
are
subject
to
inspection
and
a 48-hour
inspection
notification
is
required
.
Submit
future
street
improvement
plans
prepared
by
a
registered
California
civil
engineer
to
the
Engineering
Services
Department.
The
plan(s)
shall
be
approved
by
the
City
Engineer
prior
to
issuance
of
any
encroachment
_ or
building
permits.
Deferred.
A
completed
Medical
Marijuana
Cult~vation
-
Waste
discharge
form,
and
all
required
supporting
documents
must
be
submitted
for
review
and
I
Item 2B - Page 26
ENGS.
approved.
A
copy
of
the
approved
form
shall
be
provided
to
the
City
Engineer
prior
to
the
issuance
of
permits.
Applicant
shall
coordinate
with
Desert
Water
Agency
(DWA)
at
the
earliest
stages
of
the
proposed
project
to
obtain
a
Will
Serve
letter
and
coordinate
an
inspection
to
determine
the
proper
Backflow
protection.
A
copy
of
OWA
approval
shall
be
provided
to
the
City
Engineer
prior
to
the
issuance
of
permits.
INDIAN
CANYON
DRIVE
ENG8. ENG7. ENG8. ENG9. ENG
10. ENG11. ENG12.
Dedicate
an
additional
14 feet
to
provide
a
half
stree1
right-of-way
Width
of
44 feet
along
the
entire
frontage.
A
current
title
report;
or
a
copy
of
a
current
tax
bill
and
a
copy
of
a
vesting
grant
deed
shall
be
provided
to
verify
current
property
ownership.
A
right-of-way
plan
check
fee
shall
be
paid
by
the
applicant
in effect
at
the
time
that
the
dedication
is
submitted.
Remove
the
existing
curb
and
gutter
and
construct
a
future
8 inch
curb
and
gutter.
38 feet
east
of
centerline
along
the
entire
frontage.
in
accordance
with
City
of
Palm
Springs
Standard
Drawing
No.
200
and
340.
Deferred. Remove
the
existing
driveway
approach
and
construct
a
driveway
approach
in
accordance
with
City
of
Palm
Springs
Standard
Drawing
No.
201. The
existing
driveway
approach
location
is
in
violation
of
Section
93.06.00 C(15)d
of
the
City
of
Palm
Springs
Zoning
Ordinance.
It
ca1ts
for
a
minimum
separation
of
6 feet
between
the
driveway
and
any
rear
or
side
lot
tine.
Remove
the
existing
driveway
approach
and
construct
a
future
driveway
approach
in
accordance
with
City
of
Palm
Springs
Standard
Drawing
' No.
201.
An
on-site
vehicular
tumaround
(hammerhead
or
similar
configuration)
shall
be
constructed.
in
accordance
with
Zoning
Code
93.06.00 C
(8).
Deferred.
Remove
the
existing
asphalt
sidewalk
along
the
frontage
and
construct
a
minimum
8 feet
wide
sidewalk
behind
the
curb
along
the
entire
frontage
in
accordance
with
City
of
Palm
Springs
Standard
Drawing
No.
210.
Construct
a
future
8 feet
wide
sidewalk
behind
the
future
proposed
curb
along
the
entire
frontage
in
accordance
with
City
of
Palm
Springs
Standard
Drawing
No.
210.
Deferred.
Construct
future
pavement
with
a
minimum
pavement
section
of
5 inches
asphalt
concrete
pavement
over
4 inches
crushed
miscellaneous
base
2 Item 2B - Page 27
ENG
13. ENG
14. with
a
minimum
subgrade
of
24 inches
at
95%
relative
compaction,
or
equal,
from
edge
of
future
proposed
gutter
to
clean
sawcut
edge
of
pavement
along
the
entire
frontage
in
accordance
with
City
of
Palm
Springs
Standard
Drawing
No.
110
and
340.
(Additional
pavement
removal
and
replacement
may
be
required
upon
review
of
existing
pavement
croas-sectionsl
and
to
ensure
grade
breaks
of
the
pavement
cross-section
do
not
occur
within
a
travel
lane.)
If an
alternative
pav.-nent
section
is
proposed,
the
proposed
pavement section
shall
be
designed
by
a
Califomia
registered
Geotechnlcal
Engineer
using
"R
.. value&
from
the
project
sfte
and
submitted
to
the
City
Engineer
fer
approval.
Deferred.
Remove
and
replace
existtng
asphalt
concrete
pavement
where
required,
in
accordance
with
applicable
City
standards.
All
broken
or
off
grade
street
improvements
along
the
project
frontage
shalt
be
repaired
or
replaced.
·
SANITARY
SEWER
ENG
15. GENERAL ENG
16~
ENG
17. ENG
18. ENG
19. All
•nitary
facilities
shall
be
connected
to
the
public
sewer
system.
The
existing
sewer
service
to
the
property
shall
be
used
·for
new
sanitary
facUities.
New
laterals
shall
not
be
connected
at
manholes.
Any
utmty
trenches
or
other
excavations
within
existing
asphalt
concrete
pavemenJ
of
off-site
streets
required
by
the
proposed
development
shaH
be
backfilled
and
repaired
in
accordance
with
City
of
Palm
Springs
Standard
Drawing
No.
115.
AN
proposed
utility
lines
shall
be
installed
underground.
The
record
property
owner
shall
enter
into
a
covenant
agreeing
to
underground
alt
of
the
existing
overhead
utilities
required
by
the
Municipal
Code
In
the
future
-upon
request
of
the
City
of
Palm
Springs
City
Engineer
at
such
time
as
deemed
necessary.
The
covenant
shall
be
executed
and
notarized
by
the
property
owner
and
submitted
to
the
City
Engineer
prior
..
to
issuance
of
a grading
permit
A
current
title
report
or
a copy
of
a
current
tax
bHI
and
a
copy
of
a
vesting
grant
deed
shall
be
provided
to
verify
current
property
ownership.
A
covenant
pi'fparatign
fee
in
effect
at
the
time
that
the
covenant
is
submitted
shalr
be
paid
by
the
apolicant.
Nothing
shall
be
constructed
or
planted
in
the
comer
cut-off
area
of
any
driveway
which
does
or
will
exceed
the
height
required
to
maintain
an
3 Item 2B - Page 28
r l
ENG20. TRAFFIC ENG21. ENG22. ENG23.
appropriate
sight
distance
per
City
of
Palm
Springs
Zoning
Code
Section
93.02.00. D.
All
proposed
trees
within
the
public
right-of-way
and
within
10 feet
of
the
public
sidewalk
and/or
curb
shall
have
City
approved
deep
root
barriers
installed
in
accordance
with
City
of
PaJm
Springs
Standard
Drawing
No.
904. A
minimum
of
48 jnches
of
clearance
for
accessibility
shall
be
provided
on
public
sidewalks.
Minimum
clearance
on
public
sid,walks
shall
be
provided
by
e_lther
an
additional
dedication
of
a
sidewalk
easement
if
necessary
and
widening
of
the
sidewalk,
or
by
the
relocation
of
any
obstructions
within
the
public
sidewalk
along
the
frontage
of
the
subject
property. All
damaged,
destroyed,
or
modified
pavement
legends,
traffic
control
devices,
signing.
striping,
and
streetlights,
associated
with
the
proposed
development
shall
be
replaced
as
required
by
the
City
Engineer
prior
to
issuance
of
a Certificate
of
Occupancy.
Construction
signing,
lighting
and
barricading
shall
be
provided
during
all
phases
of
construction
as
required
by
City
Standards
or
as
directed
by
the
City
Engineer.
As
a
minimum.
au
construction
signing.
lighting
. and
barricading
shall
be
in
accordance
with
Part
6 47emporary
Traffic
Control"
of
the
Cafffomia
Manual
on
Uniform
Traffic
Control
Devices
{CAMUTCD),
dated
November
7. 2014,
or
subsequent
editions
in
force
at
the
time
of
construction.
Approved:
i1"~
-
Joel
· ontalvo
City
Engineer
f
4 Item 2B - Page 29
. 14, ,J-
REQUEST FOR TREASURER'S RECIEPT
TO: FINANCE DEPARTMENT, CASHIER DATE: s~ $0- zoz.,3
FROM: CITY CLERK'S OFFICE
PLEASE ACCEPT$ t37. c)Q
C, A . fF~ ;~ .. /1
'. t ' ,, _ ,f ,v/ t t ,, ... ,. -,~ - •• , . . ~ 1r ·- , _ · .: ~ • H FOR:
Appu,{ -lo VJ} Cowie./ (~e. Vo 3JI@!~ CUP)
10 CREDIT ACCOUNT NO. (CIRCLE BELOW)
MAPS & PUBLICATIONS: 100-34000
TRUST & AGENCY PAYABLE: 620-22015
iTHER CHARGES - CURRENT SERVICE: 100-34030
MAY 3 0 2nz3
CffY OF PALM
8 !::~:~:~_•_. __ · _K ~
~
Item 2B - Page 30
https:Jlwww.clover.com/tx/p/1MNP18CNPE388
Palm
Springs
City
Hall
I Online
Receipt
Palm
Springs
City
HaU
3200
E TAHOUITZ
CYN
WY
Jacob
Azar.
Audit
& Rey
Sup~
PALM
SPRINGS.
CA
92262
+1
760:323::8249
Jacob
Azar@patmsoctng™-.Q~
Invoice
Number:
APPEAL34316
Subtotal Total
Taxes
$637.00
$0.00
Total
$
637
°0
PAYMENT
10:
1MNP18CNPE3B8
Hide
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30,
2023,
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Method:
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1/1
AƩachment B
Item 2B - Page 31
Item 2B - Page 32
Veronica
Goedhart
From:
Simone
Sandoval
Sent:
Thursday
, June
9,
2022
11 :31
AM
Veronica
Goedhart
To: Subject:
Non
Operational
Conditional
Permit
Holder
Calibliss,
LLC-
Renewal
request
C-2019-096
CaliBliss
LLC_Conditional
Permit
signed_2021.06
.09.pdf
Attachments:
ge.
.originated
outside
of
The
City
of
Palm
Springs
--
DO
NOT
CLICK
on
links
or
open
attachments
unless
you
are
safe.
Hi
Veronica,
This
email
is
to
give
a status
update
on
Conditional
Permit
holder
Calibliss,
LLC's
project
to
renew
the
nonoperational
conditional
permit
that
is
set
to
expire
July
3,
2022
(see
attached).
As
promised,
below
is
the
project
status,
including
general
construction
timeline:
•
Tenant
improvements
were
temporarily
paused
during
the
2021-2022
year
due
to
inability
to
obtain
reliable
contractors,
access
to
materials,
and
worker
shortages
due
to
the
global
pandemic.
•
Client
is
currently
bidding
and
in
negotiations
with
Architects
and
General
Contractor
(GC)
candidates
who
they
expect
to
finalize/decide
on
by
end
of
June/
beginning
of
July
.
•
Mid
July
2022-
Submit
Tl
application
and
Cannabis
Matrix
to
secure
Building
Permit
with
the
general
timeline
considerations
laid
out
below:
o
Building
&
Safety
Review
could
take
2-3
months,
with
a couple
rounds
of
corrections
in
my
experience.
o
Construction
timeline
will
be
driven
by
the
GC
his
ability
to
order
and
obtain
materials
in
a timely
manner
.
•
October
2022
schedule
required
Department
inspections
to
obtain
COO
(Cert
of
Occupancy).
•
October
2022
Obtain
Business
Tax
License.
•
November
2022
Receive
Annual
City
License
and
begin
operations
.
As
a
reminder,
this
is
a
non-operational
business/
conditional
permit
holder
. We
appreciate
the
Department
not
imposing
the
renewal
fee
on
non-operational
cannabis
permit
holders.
Please
let
me
know
if
there
is
anything
additional
you
need
to
renew
the
permit.
Best, r.1
...
h
~
I
Announcing
Global
Cannabis
Times
CONFIDENTIALITY
NOTICE
:
1 Item 2B - Page 33
Veronica
Goedhart
From: Sent: To: Cc: Subject: Attachments:
Andrew
Mekhail
Thursday,
April
6,
2023
3:13
PM
Veronica
Goedhart
Michael
Milan
Re:
CaliBliss
lie
Conditional
Permit
Cali
Bliss
submittal_Final.pdf;
210630
CB
Architectural
Plans_Final.pdf
NOTICE:
This
message
originated
outside
of
The
City
of
Palm
Springs
--
DO
NOT
CLICK
on
links
or
open
att~chm~nts
unless
you
are
sure
the
content
is
safe,
·
Dear
Veronica,
I hope
this
email
finds
you
in
good
health
and
spirits.
My
name
is
Andrew, and
I am
the
CEO
of
Cali
Bliss
LLC.
I am
reaching
out
to
provide
an
update
on
our
current
conditional
use
permit.
As
you
may
be
aware,
our
current
permit
is
set
to
expire
on
July
3rd,
2023.
While
we
have
submitted
plans
for
a
plan
check
to
the
city
building
department,
the
ongoing
pandemic
has
understandably
caused
significant
delays
in
the
review
process,
which
may
take
up
to
5-8
months.
As
a
company,
we
have
also
faced
setbacks
due
to
COVID-19,
and
we
are
working
diligently
to
overcome
these
challenges.
Once
we
receive
our
building
permit,
we
will
begin
construction,
which
is
estimated
to
take
5-10
months.
Following
this,
final
inspections
and
walk-throughs
will
be
scheduled,
which
may
take
an
additional
1-2
months.
We
anticipate
that
the
entire
process,
including
the
acquisition
of
the
official
annual
city
cannabis
permit,
will
take
12-24
months. I would
like
to
thank
you
for
your
time
and
consideration,
and
I appreciate
the
opportunity
to
update
you
on
our
progress.
Additionally,
I would
like
to
express
my
gratitude
to
Michael
for
taking
the
time
to
meet
with
me
yesterday.
It
was
a
pleasure
speaking
with
him,
and
I will
be
sure
to
schedule
an
appointment
before
visiting
again.
Thank
you
for
your
time
and
attention
to
this matter.
If
you
have
any
questions
or
require
additional
information,
please
do
not
hesitate
to
contact
me.
Best
regards,
Andrew CEO,
Cali
Bliss
LLCDear
Veronica,
1 AƩachment C
Item 2B - Page 34
Item 2B - Page 35
Veronica
Goedhart
From:
Simone
Sandoval
Sent:
Thursday
, June
9,
2022
11 :31
AM
Veronica
Goedhart
To: Subject:
Non
Operational
Conditional
Permit
Holder
Calibliss,
LLC-
Renewal
request
C-2019-096
CaliBliss
LLC_Conditional
Permit
signed_2021.06
.09.pdf
Attachments:
ge.
.originated
outside
of
The
City
of
Palm
Springs
--
DO
NOT
CLICK
on
links
or
open
attachments
unless
you
are
safe.
Hi
Veronica,
This
email
is
to
give
a status
update
on
Conditional
Permit
holder
Calibliss,
LLC's
project
to
renew
the
nonoperational
conditional
permit
that
is
set
to
expire
July
3,
2022
(see
attached).
As
promised,
below
is
the
project
status,
including
general
construction
timeline:
•
Tenant
improvements
were
temporarily
paused
during
the
2021-2022
year
due
to
inability
to
obtain
reliable
contractors,
access
to
materials,
and
worker
shortages
due
to
the
global
pandemic.
•
Client
is
currently
bidding
and
in
negotiations
with
Architects
and
General
Contractor
(GC)
candidates
who
they
expect
to
finalize/decide
on
by
end
of
June/
beginning
of
July
.
•
Mid
July
2022-
Submit
Tl
application
and
Cannabis
Matrix
to
secure
Building
Permit
with
the
general
timeline
considerations
laid
out
below:
o
Building
&
Safety
Review
could
take
2-3
months,
with
a couple
rounds
of
corrections
in
my
experience.
o
Construction
timeline
will
be
driven
by
the
GC
his
ability
to
order
and
obtain
materials
in
a timely
manner
.
•
October
2022
schedule
required
Department
inspections
to
obtain
COO
(Cert
of
Occupancy).
•
October
2022
Obtain
Business
Tax
License.
•
November
2022
Receive
Annual
City
License
and
begin
operations
.
As
a
reminder,
this
is
a
non-operational
business/
conditional
permit
holder
. We
appreciate
the
Department
not
imposing
the
renewal
fee
on
non-operational
cannabis
permit
holders.
Please
let
me
know
if
there
is
anything
additional
you
need
to
renew
the
permit.
Best, r.1
...
h
~
I
Announcing
Global
Cannabis
Times
CONFIDENTIALITY
NOTICE
:
1 Item 2B - Page 36
Veronica
Goedhart
From: Sent: To: Cc: Subject: Attachments:
Andrew
Mekhail
Thursday,
April
6,
2023
3:13
PM
Veronica
Goedhart
Michael
Milan
Re:
CaliBliss
lie
Conditional
Permit
Cali
Bliss
submittal_Final.pdf;
210630
CB
Architectural
Plans_Final.pdf
NOTICE:
This
message
originated
outside
of
The
City
of
Palm
Springs
--
DO
NOT
CLICK
on
links
or
open
att~chm~nts
unless
you
are
sure
the
content
is
safe,
·
Dear
Veronica,
I hope
this
email
finds
you
in
good
health
and
spirits.
My
name
is
Andrew, and
I am
the
CEO
of
Cali
Bliss
LLC.
I am
reaching
out
to
provide
an
update
on
our
current
conditional
use
permit.
As
you
may
be
aware,
our
current
permit
is
set
to
expire
on
July
3rd,
2023.
While
we
have
submitted
plans
for
a
plan
check
to
the
city
building
department,
the
ongoing
pandemic
has
understandably
caused
significant
delays
in
the
review
process,
which
may
take
up
to
5-8
months.
As
a
company,
we
have
also
faced
setbacks
due
to
COVID-19,
and
we
are
working
diligently
to
overcome
these
challenges.
Once
we
receive
our
building
permit,
we
will
begin
construction,
which
is
estimated
to
take
5-10
months.
Following
this,
final
inspections
and
walk-throughs
will
be
scheduled,
which
may
take
an
additional
1-2
months.
We
anticipate
that
the
entire
process,
including
the
acquisition
of
the
official
annual
city
cannabis
permit,
will
take
12-24
months. I would
like
to
thank
you
for
your
time
and
consideration,
and
I appreciate
the
opportunity
to
update
you
on
our
progress.
Additionally,
I would
like
to
express
my
gratitude
to
Michael
for
taking
the
time
to
meet
with
me
yesterday.
It
was
a
pleasure
speaking
with
him,
and
I will
be
sure
to
schedule
an
appointment
before
visiting
again.
Thank
you
for
your
time
and
attention
to
this matter.
If
you
have
any
questions
or
require
additional
information,
please
do
not
hesitate
to
contact
me.
Best
regards,
Andrew CEO,
Cali
Bliss
LLCDear
Veronica,
1 RESOLUTION NO. _____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
PALM SPRINGS, CALIFORNIA, ON THE APPEAL OF THE
EXPIRATION OF CONDITIONAL CANNABIS PERMIT NO.
C-2019-096, HELD BY CALIBLISS, LLC
Jurisdiction
: The appeal hearing is conducted in accordance with Palm Springs Municipal Code Chapter 2.05 which confers jurisdiction upon the City Council to hear all appeals to the City Council other than those separately handled pursuant to Chapter
2.50. WHEREAS, Calibliss, LLC (“Appellant”) was issued Conditional Cannabis Permit No. C-2019-096 pursuant to Palms Springs Municipal Code Chapter 5.55 on July 14, 2020. A twelve- month extension was granted on July 4, 2021, and a second twelve- month extension was granted on July 5, 2022; and
WHEREAS, the second extension window for Conditional Cannabis Permit No.
C-2019-096 expired on July 3, 2023, and staff advised representatives for Appellant that an additional twelve-month extension would require the approval of City Council (by an appeal) and would be subject to a penalty of up to $10,000, pursuant to Palm Springs Municipal Code Section 5.5.080; and
WHEREAS, Appellant thereafter filed an appeal of the expiration of Conditional Cannabis Permit No. 2019-096 on May 30, 2023; and
WHEREAS, notice of the appeal hearing before the City Council was given in accordance with applicable law; and
WHEREAS, the City Council of the City of Palm Springs opened and conducted a duly noticed appeal hearing in accordance with Palm Springs Municipal Code S ection
5.55.080 and Chapter 2.05 on July 24, 2023; and
WHEREAS, the City Council of the City Palm Springs was presented with evidence regarding Appellant’s ability to demonstrat e substantial progress toward becoming operational, and identification of any unique factors that impeded Appellant from becoming operational; and
WHEREAS, the City Council of the City of Palm Springs has carefully reviewed and considered all the evidence presented in connection with said appeal on July 24, 2023.
NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF PALM SPRINGS DOES HEREBY FIND, after due consideration given to the relevancy, weight, and credibilit y of testimony and evidence, and based upon a preponderance of the evidence in accordance with the City Council’s procedure, as follows:
Item 2B - Page 37
Resolution No. _____
SECTION 1. INCORPORATION OF RECITALS. The foregoing Recitals are true and correct and are incorporated herein by this reference.
SECTION 2. DETERMINATION.
Calibliss, LLC has failed to provide adequate evidence of substantial progress toward becoming operational and that it has not engaged in conduct constituting an unreasonable delay. Calibliss, LLC has further failed to present evidence identifying unique factors that impeded them from becoming operational. Accordingly, pursuant to Pal m Springs Municipal Code Section 5.55.080 and based upon the evidence in the record and testimony presented at the hearing, t he City Council upholds the expiration of Conditional Cannabis Permit No. C -2019-096 and the request by Calibliss, LLC for a twelve-month extension is denied.
Calibliss, LLC has presented adequate ev idence of substantial progress toward becoming operational and a lack of unreasonable delay.
Accordingly, pursuant to Palm Springs Municipal Code Section 5.55.080 and based upon the evidence in the record and testimony presented at the hearing, the City Council grants a twelve-month extension, to expire on , 2024.. Calibliss, LLC shall pay a penalty in the amount of $__________.
PASSED, APPROVED, AND ADOPTED BY T HE PALM SPRINGS CITY COUNCIL THIS ___ DAY OF ________________, 2023.
GRACE ELENA GARNER
MAYOR
ATTEST:
BRENDA PREE
CITY CLERK
Item 2B - Page 38
Resolution No. _____
CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss.
CITY OF PALM SPRINGS )
I, BRENDA PREE , City Clerk of t he City of Palm Springs, hereby certify that Resolution No. ____ is a full, true, and correct copy, and was duly adopted at a regular meeting of the City Council of the City of Palm Springs on July 24, 2023, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
IN WITNESS WHEREOF , I have hereunto set my hand and affixed the official seal of the City of Palm Springs, California, this ______ day of ______________, _________.
BREN DA PREE
CITY CLERK
Item 2B - Page 39
CITY COUNCIL STAFF REPORT
07/24/2023
SUBJECT:
AWARD A CONSTRUCTION MANAGER AT RISK AGREEMENT FOR THE
INBOUND BAGGAGE CLAIM AT THE PALM SPRINGS INTERNATIONAL AIRPORT RECOMMENDATION:
Award Construction Manager at Risk Agreement No. 23P160 with Skanska USA Building Inc. for the construction of the inbound baggage claim at the Palm Springs International Airport for an initial guaranteed maximum price not to exceed $29,041,747 which will adjust over time when the trade packages are bid, as outlined in the Agreement.
1. Authorize the City Manager or designee to approve the final guaranteed maximum amount for the project at a later date as outlined in the Agreement.
2. Approve a contingency for the project of approximately 15% or $4,356,000 for adjustments to the scope of work or unforeseen conditions to meet the program requirements and authorize the City Manager or designee to issue change orders up to this amount to allow the project to be completed in a timely manner.
3. Attachments
Item 3A
CITY COUNCIL STAFF REPORT
DATE: JULY 24, 2023 BUSINESS & LEGISLATIVE
SUBJECT: AWARD A CONSTRUCTION MANAGER AT RISK AGREEMENT FOR
THE INBOUND BAGGAGE CLAIM AT THE PALM SPRINGS
INTERNATIONAL AIRPORT
FROM: Scott C. Stiles, City Manager
BY: Department of Aviation
SUMMARY:
Award a Construction Manager Services at Risk Agreement with Skanska USA Building Inc. for the inbound baggage claim at the Palm Springs International Airport and approve a project contingency.
RECOMMENDATION:
1. Award Construction Manager at Risk Agreement No. 23P160 ( Attachment A) with Skanska USA Building Inc. for the construction of the inbound baggage claim at the Palm Springs International Airport for an initial guaranteed maximum price not to exceed $29,041,747 which will adjust over time when the trade packages are bid , as outlined in the Agreement.
2. Authorize the City Manager or designee to approve the final guaranteed maximum amount for the project at a later date as outlined in the Agreement.
3. Approve a contingency for the project of approximately 15% or $4,356,000 for adjustments to the scope of work or unforeseen conditions to meet the program requirements and authorize the City Manager or designee to issue change orders up to this amount to allow the project to be completed in a timely manner.
BUSINESS PRINCIPAL DISCLOSURE:
According to the Public Integrity Disclosure Form (Attachment B) submitted on June 28, 2023, Skanska USA Building Inc. is a California corporation registered to do business in California.
Item 3A - Page 1
City Council Staff Report
July 24, 2023 -- Page 2
Inbound Baggage Claim CMAR
BACKGROUND:
The Palm Springs International Airport (Airport) has experienced significant growth in passenger activity over the past five years resulting in the need to expand and upgrade its bag claim lobby to increase public space, improve circulation, and accommodate greater bag claim capacity. Palms Springs and the surrounding Coachella Valley is a popular leisure destination resulting in higher than typical passenger bag loads and number of oversize bags (golf clubs and similar items).
The existing baggage claim area is approximately 180 feet wide and 110 feet deep, is equipped with three flat plate bag claim devices with approximately 835 feet total belt length (including offload positions), and rental car service counters and offices located along the front wall of the lobby. The existing building is a single level, flat roof building with a slab on grade floor. The structural grid is approximately 30 feet by 30 feet. HVAC distribution is contained overhead within a drop ceiling and supplied by central plant. The building is on the register of historic places. There are limitations on the types of modifications that will be acceptable, and requirements to utilize specific building materials and aesthetics to match existing historic characteristics.
The Contractor will be responsible for the preconstruction and construction services for the renovation and expansion of the entire bag claim area at the Airport. The footprint consists of existing lobby area of 19,800 square feet and the expansion area of approximately 10,000 square feet totaling of approximately 29,800 square fe et. The project area is generally located at the northeast area of the existing airport facility along Kirk Douglas Way. All work and materials must be in keeping with the historic determination for the building.
STAFF ANALYSIS:
The Procurement and Contracting Department in coordination with the Aviation Department issue d a Request for Proposals (RFP) for Construction Manager at Risk Services for the Inbound Baggage Claim at the Palm Springs International Airport on June 5, 2023. The RFP was advertised in the local newspaper and on Planet Bids, the City’s electronic bid site. A preproposal conference was held on site June 13, 2023. Five proposals were received by the deadline of June 29, 2023 as follows:
• Clayco, Chicago IL
• McCarthy Building Companies, Inc., Newport Beach CA
• Skanska USA Building, Los Angeles, CA
• Sundt Construction, Inc., Irvine CA
• Swinerton Builders, Santa Ana, CA
The evaluation team made up of City staff from the Aviation Department and Engineering Services evaluated the proposals received against the evaluation criteria to make sure Item 3A - Page 2
City Council Staff Report
July 24, 2023 -- Page 3
Inbound Baggage Claim CMAR
the firm was qualified to do the work. The evaluation criteria consisted of the firm’s experience; the teams experience; a demonstration of the understanding of the work; project controls including schedule; budget quality and safety; and the initial cost of the project. In addition, references were checked to confirm successful completion of past projects.
Three firms were chosen to move forward in the interview phase and interviews were conducted on July 13, 2023 for the following firms:
• Clayco
• McCarthy Building Companies, Inc.
• Skanska USA Building
Interviews were scored and proposal and interview scores were combined to determine the highest ranked firm. Skanska USA Building Inc. was ranked the highest and is being recommended by staff for award of the contract.
The amount recommended for award of the contract represents an initial guaranteed amount which can change over time as the design progresses and the trade packages are bid to the sub trades to complete the work. A final guaranteed maximum price will be negotiated when the trade packages are complete and have been award to the subtrades by the Construction Manager at Risk Contractor.
ENVIRONMENTAL ASSESSMENT
:
In accordance with the California Environmental Quality Act (“CEQA”) Guidelines Section 15302 “Replacement or Reconstruction”, Class 2 projects consist of replacement or reconstruction of existing structures and facilities where the new structure will be located on the same site as the structure replaced and will have substantially the same purpose and capacity as the structure replaced. Therefore, Staff has determined that the Project is considered categorically exempt from CEQA.
ALIGNMENT WITH STRATEGIC PLANNING:
Approval of this action supports City Council Priority 2, Community Infrastructure.
FISCAL IMPACT:
The estimated cost for the initial guaranteed price to complete the construction services is $29,041,747 with an estimated contingency amount of $4,356,000 and the possibility of an increase to the guaranteed maximum price upon completion of the trade pack age bids that is yet to be defined; $5,700,000 (17%) of the overall project costs will be reimbursed by the Bipartisan Infrastructure Law Airport Terminal Program (BIL- ATP), 44% $14,658,074 (44%) will be reimbursed by the Bipartisan Infrastructure Law Airport Infrastructure Grants (BIL-AIG), $10,850,366 (32%) of the project costs will be funded by Item 3A - Page 3
City Council Staff Report
July 24, 2023 -- Page 4
Inbound Baggage Claim CMAR
the Federal Aviation Administration’s Airport Capital Improvement Program (ACIP), and the remaining $2,189,307 of the project costs will be funded by the Airport Special Capital Projects Fund 416 fund balance. The Airport intends to apply for additional BIL-ATP funds to supplement the use of BIL-AIG during the next open application process with the FAA; however, the process is competitive with other airports and grant funding is not guaranteed to the Airport.
REVIEWED BY:
Department Director: Harry Barrett Jr.
Procurement and Contracting Director: Kim Baker
City Attorney: Geremy Holm
City Manager: Scott Stiles
ATTACHMENTS:
A. Construction Manager at Risk Agreement No. 23P160
B. Public Integrity Disclosure Form
Item 3A - Page 4
ATTACHMENT A
CONSTRUCTION MANAGER AT RISK
AGREEMENT NO. 23P160
Item 3A - Page 5
55575.38120\40616704.1
1 CITY OF PALM SPRINGS
INBOUND BAGGAGE CLAIM
CONSTRUCTION MANAGEMENT SERVICES AT RISK AGREEMENT 23P160 entered into this 1st day of August 2023 by and between the City of Palm Springs, a California Skanska USA Building Inc.. a construction
RECITALS
WHEREAS, City is a public agency of the State of California and is in need of construction managemen located at Palm Springs
International Airport, Palm Springs, California ("the Property").
WHEREAS, City has retained Gensler
in connection with design of the Project.
WHEREAS, Architect will complete preparation of the Design Documents for the Project.
WHEREAS, in connection with reviews of the Design Documents prepared by the Architect for the Project, and bidding of Trade Contracts for construction of the Project, the City desires to retain and contract with the CMAR to provide construction management services at risk for the Project, as further described in this Agreement.
WHEREAS, on or about June 5, 2023 the City issued a Request for Proposals 34- pursuant to which the City sought proposals from Contractors to provide the construction management at risk services in connection with review of Project Design Documents and the bidding and construction of the Project. A copy of the RFP is incorporated herein by this reference.
WHEREAS, the CMAR submitted a written proposal dated June 19, 2023 responding to the RFP.
WHEREAS, the City desires to retain the CMAR to provide certain services in connection with the Project in order to achieve their mutual objectives relating to the Project, including without limitation, review of the Project Design Documents, management of the bidding process for the Trade Contracts, management of Project construction, completion of Project construction, and to allocate risks for the time/costs to complete Project construction as set forth in this Agreement.
WHEREAS, the CMAR is a professional construction manager/general contractor, duly qualified and capable of providing the Services described herein in accordance with the terms hereof.
NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which is acknowledged by the Parties, the Parties agree as follows:
Item 3A - Page 6
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 This Construction Management Services At Risk Agreement ("Agreement") is charter city and municipal corporation ("City" or "City") and management at risk entity ("CMAR"). City and CMAR may be collectively referred to as the "Parties" and individually as a "Party."
tat risk services for the Inbound Baggage Claim Project ("Project"), (the "Architect") to provide and perform certain services 23 ("the RFP")
55575.38120\40616704.1
2 AGREEMENT
1. DEFINITIONS.
Unless otherwise set forth herein, all terms in this Agreement shall have the meanings indicated in the t and where
a. Trade Contract . A Contract for Construction awarded by the CMAR to a Trade Contractor for the construction of a portion of the Project. b. Trade Contractor. A Trade Contractor to the CMAR under a Trade Contract awarded by the CMAR for construction of the Project and acceptable to City for construction of
c. Design Documents. The Drawings, Specifications, calculations and other work product and Instruments of Service prepared by or on behalf of the Architect for the Project.
Design Documents include surveys, soils reports, design/trade packages and other documents prepared for the Project by a licensed Architect or registered Engineer, whether under contract to the Architect or City.
d. Architect. References to the Architect include its consultants retained to prepare or provide any portion of the Design Documents.
e. Submittals. Shop Drawings, Product Data or Samples prepared or provided by a Trade Contractor or a Subcontractor to a Trade Contractor or suppliers illustrating some portion of the work of the Project.
f. Site. The physical area for construction and activities relating to construction of the Project.
g. Phases. As described in greater detail herein, the Services provided by the CMAR for the Project shall consist of at the Pre-Construction Phase and Construction Phase.
CMAR shall not proceed with any work or any Phase, nor shall the CMAR be entitled to any compensation for any such work unless and until City issues a written Notice to Proceed for that Phase. In entering into this Agreement, the Parties have expressly agreed that City is under no obligation to issue a Notice to Proceed for any specific discretion. If no Notice to Proceed is issued for a specific Phase, the CMAR shall not be entitled to any compensation for such Phase.
h. Initial Guaranteed Maximum Price (IGMP) . The IGMP is the estimate allocated by the City for bidding and construction of the Project by the Trade Contractors and the (b)
fees and costs of other consultants of the City; and (c) the costs of furniture, furnishing and/or equipment for the Project which are not included in the scope of the Trade Contracts. The IGMP established by the City may be modified by the City from time-to- time.
Item 3A - Page 7
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 Special Provisions, attached hereto as Exhibit "A". For purposes of this Agreemen applicable within the Special Provisions, "Contractor'' shall mean "CMAR" and "Subcontractor'' shall mean "Trade Contractor."
the Project. Also may be referred to as a "Subcontractor''.
Phase, and may or may not issue a Notice to Proceed for a specific Phase in City's sole CMAR's compensation hereunder, exclusive of (a) fees and costs of the Architect; 55575.38120\40616704.1
3 i. Construction Cost Estimates. Construction Cost Estimates are estimates of the then current costs of labor, materials, equipment and services plus a reasonable allowances as necessary to complete construction of the Project in accordance with the Design Documents.
j. Construction Costs. The costs of labor, materials, equipment (inclusive of the Trade Project.
k. Baseline Schedule. The Baseline Schedule is a written or graphic description prepared by the CMAR showing the various activities necessary to complete Project construction, and the sequencing of such activities. The Baseline Schedule shall not exceed the herein.
l. Construction Contract Documents. The Contract Documents issued by or on behalf of the CMAR under a Trade Contract for construction of a portion of the Project.
Construction Contract Documents include all modifications issued by or on behalf of the CMAR. Unless otherwise expressly stated, references to the Construction Contract Documents are references to all of the Contract Documents issued for Project construction.
m. Substantial Completion . Substantial Completion is when the Work has been completed and installed and the Work can be used or occupied for its intended purposes, subject only to minor corrections, repairs or modifications. n. Final Completion. Final Completion is when all of the Work has been completed and installed (including items noted for correction, repair or modification upon Substantial Completion) and all other obligations have been performed under the Construction Contract Documents.
2. SERVICES
a. Services. CMAR shall provide and perform the Preconstruction and Construction herein. All of the Services during the Construction Phase shall be performed or provided by or under the control of an individual employed by the CMAR and who is a licensed general contractor under California law. Services under this Agreement include, without limitation, the General Condition items to be provided by the CMAR during the Construction Phase, as further described in this Agreement and scope of work in Exhibit Special Provisions attached hereto as Exhibit
b. Ineligibility to Bid. CMAR, and any other business with common ownership shall be ineligible to bid on any Trade Contract for the Project, but shall remain eligible to bid on any other City projects. CMAR maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for the CMAR, to solicit or secure this Agreement. Further the CMAR warrants that it has not Item 3A - Page 8
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 Contractors' administrative costs/profit) necessary to complete construction of the duration set forth on Exhibit "B" in the scope of work" attached hereto and incorporated Services ("Services") more particularly described in this Agreement. The scope of the CMAR's Services and obligations during each Phase of the Services shall be as set forth "B attached hereto and incorporated herein. Services shall be subject to the City's "A".
55575.38120\40616704.1
4 paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for the CMAR, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement.
c. Relationship of CMAR to Other Project Participants. The CMAR acknowledges that the City has entered into, or will be entering into, contracts with other parties including without limitation, contracts with the architect, the inspector, and test/inspection service providers and others. The CMAR acknowledges that accomplishing the Project objectives of the City requires that the CMAR and other parties under Project related contracts with the City each completely and timely perform in accordance with their respective contractual obligations and in a collaborative manner consistent with the Project objectives of the City. The CMAR acknowledges and agrees that its performance of the obligations under this Agreement in a complete and timely manner and in a collaborative manner with other Project participants are material obligations of the CMAR under this Agreement.
d. CMAR Standard of Care. CMAR shall provide the Services using its best professional skill and judgment, acting with due care and in accordance with professional standards of care, the terms hereof and applicable l
hereunder shall be provided and completed promptly and in such a manner as to avoid hindrance, interruption or delay to the orderly progress and timely completion of the objectives.
e. CMAR Project Manager; Field Superintendent . The Project Manager and Field Superintendent shall be to the reasonable satisfaction of the City; if the City requests alternatives to the individual(s) proposed by the CMAR as the Project Manager or the Field Superintendent, the CMAR shall provide such alternatives until the City has approved of the Project Manager and the Field Superintendent. Once approved by the City, the CMAR shall not designate other individual(s) to serve in such capacities in connection with this Agreement without the prior consent and approval of the City. The Project Manager shall: (a) be authorized to act on behalf of the CMAR with respect to this Agreement; and (b) be authorized to render binding decisions on behalf of the CMAR.
i. City Right to Remove CMAR Project Manager and Field Superintendent.
Notwithstanding the foregoing provisions of Section 2.4, above, if any CMAR Project Manager or Field Superintendent proves not to be satisfactory to the City, upon written notice from the City to the CMAR, such person shall be promptly replaced by a person who is acceptable to the City in accordance with the procedures set forth below. ii. Selection of Replacement CMAR Project Manager or Field Superintendent. Within five (5) business days after receipt of a notice from the City requesting the replacement of any CMAR Project Manager or Field Superintendent, or promptly following the discovery by the CMAR that any CMAR Project Manager or Field Superintendent is leaving the employ of the CMAR , as the case may be, the CMAR shall provide the City with the name of an acceptable replacement/substitution (together with such Item 3A - Page 9
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 aw, code, rule or regulation. CMAR's Services
CMAR's review of Project Design Documents, Trade Contractors' bidding and Project construction to permit occupancy of the Project in accordance with the Owners' person's resume and other
55575.38120\40616704.1
5 replacement/substitution shall commence work on the Project no later than five (5) days all not be unreasonably
withheld. In the event that the City and CMAR cannot agree as to the substitution of replacement CMAR Project Manager or Field Superintendent, the City shall be entitled to terminate this Agreement for cause, pursuant to the applicable provisions of this Agreement.
3. OWNER RESPONSIBILITIES.
a. City Information. The City shall provide full information to the CMAR regarding the Project including objectives, schedule requirements, budget limitations and other constraints and requirements which may affect the IGMP, time for completion of Project construction or Project scope.
b. City's Representatives. The City may designate a representative or representatives to act on its behalf with respect to the Project and who shall be authorized to render decisions on behalf of the City, as applicable, and to carry out the responsibilities of the City under this Agreement, all of which shall be discharged or performed in a manner so as to avoid unreasonable delay in the orderly and sequential progres performance of services and other obligations hereunder. c. Tests/Inspections. In accordance with applicable law, rule or regulation, the City may:
required by applicable laws, rules or regulations; and (b) retain Test/Inspection Service Providers to conduct Construction Phase tests/inspections of materials/equipment forming a part of the Project, as required by applicable law, rule or regulation. The retention of the Inspector or the Test/Inspection Service Providers shall not affect the as set forth below, the Services of the CMAR include assistance to the City in identifying, selecting and retaining the Inspector and Test/Inspection Service Providers. d. City Consultants. Except to the extent of design consultants retained by the Architect, other consultants required or desired by the City in connection with the Project shall be retained and paid for by the City.
4. PRE-CONSTRUCTION PHASE
a. Review of Design Documents/Bid/Trade Packages
Project Manager and Field Superintendent, shall review the Design Documents including bid/trade packages completed by the Architect and have a complete understanding of the Project design and scope. CMAR will work cooperatively with the Architect to develop a progressive design, with the CMAR role to provide input on value engineering, schedule impacts, constructability, and materials of construction, construction methods, and costs to help refine the project to meet the needs of City as described in subsequent sections. It is the intent to provide design input early and appropriately to avoid schedule delays and re-design.
b. Project Baseline Schedule. CMAR shall prepare the Project Baseline Schedule during the Pre-Construction Phase as outlined in the scope of work and provide a copy to the Item 3A - Page 10
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 information regarding such person's experience and qualifications). The following the City's approval of such replacement, which approval sh s of the CMAR's
(a) retain a Project Inspector ("Inspector'') to provide construction observations as CMAR's obligations or rights set forth in this Agreement. The foregoing notwithstanding, . CMAR, including the CMAR's
55575.38120\40616704.1
6 City for review and input. Project Baseline Schedule shall be prepared with the most recent edition of commercially available software designed specifically for the scheduling of construction projects and which utilizes the critical path method of scheduling, subject to the approval by City. The Baseline Schedule shall indicate the start/finish dates for the principal activities of each Bid Package necessary to complete Project construction.
The CMAR shall sequence, schedule and coordinate the work of each Bid Package in the Baseline Schedule in a logical, reasonable and orderly manner so that Project construction can be completed for the GMP and within the time established by the City. n the Baseline Schedule.
The CMAR acknowledges that the Baseline Schedule prepared by the CMAR will be included in the Contract Documents for each Bid Package and that Trade Contractors bidding on a Bid Package will rely upon the Baseline Schedule in developing their respective Bids. Accordingly, the CMAR is solely responsible for the accuracy and completeness of the Baseline Schedule and the reasonable, logical and orderly construction-related activities to complete Project construction within the time and IGMP established by City.
c. Value Engineering.
engineering. If, upon completing its review of the Design Documents, the CMAR believes that Work of the Project depicted in the Design Documents, construction processes/procedures, specified materials/equipment or other aspects of the Design Documents can be modified to reduce Construction Costs and/or the time for achieving Final Completion of the Project and/or to extend life-cycle and/or to reduce maintenance/operations costs, without diminution in the quality of materials/equipment/workmanship, scope or intended purposes of the Project, the CMAR shall identify the same in
review and acceptance by the City. The CMAR shall submit initial Value Engineering Recommendations to the City promptly as the design progresses and prior to the issuance of a Bid Package. The City shall have the sole and exclusive discretion to -Engineering Recommendations. If the
review the Design Documents as modified by the Architect for confirmation that the City accepted Value Engineering Recommendations are incorporated into the Design Documents to be issued on behalf of the City for bidding by Trade Contractors. If the CMAR determines that the Architect has not incorporated into the Design Documents the Value Engineering Recommendations accepted by the City, the CMAR shall advise the City of measures to ensure that the Design Documents issued for bidding by Trade Contractors incorporate the City accepted Value Engineering Recommendations. d. Constructability Review
Documents as to the Value Engineering analysis, the CMAR shall review the Design Documents in an attempt to ascertain whether the Project as depicted in the Design constructability reviews shall be conducted as outlined in the scope of work. The CMAR shall submit written Constructability Review comments to the City within seven (7)) days of the date of this Agreement and upon receipt of the Design Documents. The City shall Item 3A - Page 11
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 If the City's requirements for the Project include phasing elements of Project construction, the City's phasing requirements shall be set forth i scheduling, sequencing and coordination of the Trade Contractors' construction and CMAR's review of Design Documents shall include value
writing (the "Value Engineering Recommendations") for
accept some, all or none of the CMAR's Value
City accepts any of the CMAR's Value Engineering Recommendations, the CMAR shall Concurrently with the CMAR's review of the Design
Documents reflects the City's Project objectives. The scope of the CMAR's have the sole and exclusive discretion to accept some, all or none of the CMAR's 55575.38120\40616704.1
7 Constructability Review Comments, the CMAR shall review the Design Documents modified by the Architect for confirmation that the City accepted Constructability Review Comments are incorporated into the Design Documents issued on behalf of the City for bidding by Trade Contractors. If the CMAR determines that the Architect has not incorporated into the Design Documents the Constructability Review Comments accepted by the City, the CMAR shall advise the City of measures to ensure that the Design Documents issued for bidding by Trade Contractors incorporate the City accepted Constructability Review Comments.
e. City Review Of Value Engineering Recommendations And Constructability Review Comments; Incorporation Of Accepted Value Engineering Recommendations And Constructability Review Comments
promptly complete review of the same. The CMAR and the City shall promptly meet and confer to arrive at mutually agreed Value Engineering Recommendations and Constructability Review Comments to be incorporated into the Project Design Documents.
f. Labor/Materials Marketplace Survey. CMAR shall informally survey the existing labor and materials marketplace conditions in the locality of the Project to ascertain the availability of suitable labor and materials necessary to complete Project construction as outlined in the scope of work. Within fourteen (14) days of the date of this Agreement, the CMAR shall complete the labor/materials marketplace survey and provide the City with a written evaluation of the extent of available and suitable labor/materials and whether the CMAR anticipates that the extent of available and suitable labor/materials will impact the costs/time for completion of Project construction. If the CMAR concludes that the extent of available and suitable labor/materials may have an adverse impact on include recommendations for measures to mitigate such potential adverse impacts to costs/time. CMAR must continually review the Design Documents to identify long lead procurement items (manufactured/fabricated items, equipment, materials and supplies) for the Project. Long lead items should be identified in the Trade Packages and Project Schedule. If authorized by the City, CMAR will arrange for procurement of long-lead items prior to bidding Trade Packages. CMAR shall track progress of the manufacturing or fabricating these long lead items and advise the City of any problems or possible delays in delivery. City reserves the right to procure any and all the materials and equipment required for the Project.
g. Project Bidding and Construction Strategy. CMAR shall, in conjunc Architect, review the current status of completion and approvals for bidding the Project Design Documents to Trade Contractors. The objective of these reviews is the development of an overall strategy for bidding and constructing the Project taking into account factors affecting time for completing construction of the Project or the costs of constructing the Project. CMAR shall conduct such interviews and participate in such d others as necessary to
CMAR shall submit its written recommended bidding/construction strategy to the City within thirty (30) days of the Notice to Proceed for Preconstruction Services (the Item 3A - Page 12
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 Constructability Review Comments. If the City accepts any of the CMAR's . Upon receipt of the CMAR's Value Engineering
Recommendations and the CMAR's Constructability Review Comments, the City shall costs/time for completion of Project construction, the CMAR's written evaluation shall tion with City' and
meetings and conferences with the Architect, , City's staff an develop a bidding and construction strategy consistent with City's Project objectives. 55575.38120\40616704.1
8 prequalification process for bidders in the bidding/construction strategy subject to the review and approval of City. Within fifteen (15) days o Preliminary Bidding/Construction Strategy, City will submit comments, modifications and Strategy. The CMAR shall modify the Preliminary Bidding/Construction Strategy as receipt of written communication from City regarding modifications necessary to obtain ment the Final
Bidding/Construction Strategy.
h. Development Of Bid Packages . Based upon its review of Design Documents (including any City accepted Value Engineering Recommendations and Constructability Review Comments), the CMAR shall develop written Bid Package descriptions suitable for bidding by Trade Contractors. At least seven (7) days prior to the date the CMAR advertises for bid of any Trade Contract, the Bid Packages developed by the CMAR shall be submitted to the City for review and acceptance by the City. The City will complete review of the Bid Packages and provide the CMAR with comments, requested modifications and similar matters relating to the proposed Bid Packages.
Notwithstanding the foregoing provisions or any other provisions of this Agreement, the review of Bid Packages by the City and acceptance of Bid Packages by the City: (a) shall not relieve the CMAR of its responsibility under this Agreement for developing Bid Packages which shall attempt to incorporate all work, labor, materials, equipment and services necessary to construct the Project depicted in the Construction Contract Documents for bidding by Trade Contractors; or (b) be deemed the assumption of responsibility by the City for the completeness, accuracy or sufficiency of any Bid Package or the totality of the Bid Packages developed by the CMAR. The CMAR shall each Bid Package and the entirety to all Bid Packages. The CMAR shall attempt to incorporate into each Bid Package and identify all work, labor, materials and services required under each Bid Package so that the Project, as constructed by the Trade Contractors, is as depicted in the Construction Contract Documents issued for bidding, subject to City approved Changes during the Construction Phase. Costs for work, labor, materials or services indicated in the Design Documents issued for bidding by Trade Contractors which are not incorporated into a Bid Package shall be the sole responsibility of the CMAR but may be funded from the amount set aside for contingencies. i. CMAR Estimate of Construction Costs . CMAR shall prepare a cost model for the Construction Cost Estimates and provide a copy of the cost model to the City as outlined in the scope of work. The cost model should serve as a basis for all estimates for the CMAR shall continue to refine the Construction Cost Estimates throughout the Pre- Construction Phase as outlined in the scope of work with input provided to the City on Costs Estimates shall: (a) be in such format and with such detailed breakdown as directed by the City including without limitation a detailed breakdown of estimated costs Item 3A - Page 13
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 "Preliminary Bidding/Construction Strategy"). The CMAR may provide for and include a f City's receipt of the CMAR's
other direction to the CMAR relating to the CMAR's Preliminary Bidding/Construction necessary to obtain approval by City. Modifications, if any, to the CMAR's Preliminary Bidding/Construction Strategy shall be completed within five (5) days of the CMAR's City's acceptance of same; the modification process shall continue until City has accepted the entirety of the CMAR's proposed bidding/construction strategy (the "Final Bidding/Construction Strategy"). The CMAR shall imple
modify the Bid Packages as necessary to obtain the City's acceptance of the entirety of Project including the development of the proposed Guaranteed Maximum Price ("GMP"). clarifications needed to reduce allowances or contingencies. CMAR's Construction 55575.38120\40616704.1
9 for construction of the Project; (b) be organized by the standard specifications sections the then current market conditions for labor, materials and equipment necessary to final Construction Costs Estimates for the Project, as applicable, exceeds the GMP by ten percent (10%) or greater, the CMAR shall make recommendations to the City for measures to reduce the Construction Costs Estimates to conform with the GMP for the Project, as applicable.
j. Review and Assembly of Bid Documents . The CMAR shall prepare standard forms of bid and contract documents for each Trade Contract for the review and approval of City. The CMAR shall incorporate the Agreement terms, including bond forms set and Federal Funding Requirements in this Agreement, and other public works contract documents for the Project. Within thirty (30) days of the date of this Agreement, the CMAR shall assemble bid and contract documents for each Bid Package for submission to City for review and acceptance. The CMAR shall not issue any bid or contract documents for bidding by Trade Contractors until all of the bid and contract documents for all Bid Packages are accepted by the City. The bid and contract documents shall require all Trade Contractor payment and performance bonds to name City and CMAR as co-obligees. In addition, bid documents shall require all Trade Contractors to name City and CMAR as additionally insured on all Trade Contractor required insurance policies evidenced by insurance certificate and endorsement. k. Bidding of Trade Contracts
i. Selection of Trade Contractors.
duty to divide the construction work into appropriate Bid Packages for competitive bidding and award of Trade Contracts for all Project work by the CMAR pursuant to this section. The CMAR shall not be permitted to self-perform construction trade work unless such work is part of its approved CMAR General Conditions Costs or as otherwise expressly approved in writing by City as an amendment to this Agreement. CMAR agrees that its competitive process will ensure the solicitation of multiple bids for each proposed Trade Contract in a manner consistent with the right to oversee and participate in the bidding process as necessary to ensure such competitive procedures are followed. CMAR shall inform all bidders that City will not be a party to any Trade Contract executed by CMAR and the selected bidders. In the event CMAR does not comply with this provision, City may terminate this Agreement for cause in accordance with the termination provisions of this Agreement. Once City concurs with the selection of the Trade press
written approval which may be granted consistent with the requirements of Public Contract Code section 4100 et seq.
ii. Advertisements. CMAR shall coordinate the development of such legal advertisements of the availability of Bid Packages for bidding as required by applicable law. boundaries, as well as appropriate publications in the vicinity of the City. CMAR shall place such other notices and issue communications for such purposes as directed or approved by the City.
Item 3A - Page 14
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 established by the Construction Specifications Institute ("CSI"); and (c) be based upon complete Project Construction in accordance with the Design Documents. If the CMAR's As described above, it shall be the CMAR's
City's standard competitive bidding process unless otherwise approved by City. City reserves Contractors, such contractors may not be substituted or replaced except with City's ex CMAR shall place such advertisements in a newspaper of general circulation within the City's 55575.38120\40616704.1
10 iii. Dissemination Of Bid Documents To Trade Contractors. The CMAR shall establish a system for dissemination of Bid Documents to Trade Contractors and for maintaining records of the identities/addresses/telephone numbers/email addresses of the Trade potential Trade Contractor bidders who have obtained the Bid Documents shall be available to the City upon request of the City to the CMAR.
iv. Trade Contractors Campaign. The CMAR shall, by reasonably appropriate means of communications, advise qualified and bondable Trade Contractors of the availability of Bid Packages for bidding by Trade Contractors. The CMAR shall endeavor to maximize the participation of qualified Trade Contractors. The CMAR shall maintain written or electronic records of contacts made and communications transmitted to/received from potential bidders for the Bid Packages. All such records shall be available for review and/or reproduction by the City upon request of the City.
v. Pre-Bid Conference(s) . The CMAR shall conduct pre-bid conferences, including the job walk(s), if one is required or scheduled in the Bid Documents for any Bid Package. The pre-bid conference shall include without limitation: (a) description of the Project and each Bid Package; (b) description of the process for bidding and award of Trade Contracts; and (c) material requirements of the Trade Contracts relating to bonds, insurance and similar administrative requirements of the Trade Contracts. The job walk shall provide Trade Contractors with an overview of the Site and an understanding of the physical limitations and constraints affecting the Work of the Project or portions thereof. As necessary or appropriate the CMAR shall conduct separate, detailed pre-bid conferences with potential bidders for specific Bid Packages. The CMAR shall develop a process for monitoring attendance by potential Trade Contractor bidders and their potential Subcontractors at job walk(s) and pre-bid conferences. The process developed by the CMAR shall include without limitation information relating to: (a) each potential Trade Contractor bidder and each potential Subcontractor bidder to a potential Trade Contractor bidder in attendance; (b) the identify and contact information for the representative of each potential Trade Contractor and each subcontractor to a potential Trade Contractor bidder (including address, telephone number(s), fax number(s) and email address); and (c) whether the representative of each potential Trade Contractor bidder and potential subcontractors were in attendance for the entirety of the job walk or pre-bid conference, as applicable. The CMAR shall receive questions from bidders and shall be solely responsible
vi. Opening/Reading Of Bid Proposals. CMAR shall, with assistance of the City, conduct the public opening and reading of Bid Proposals for Bid Packages. Upon completing the public opening and reading of Bids received, the CMAR shall develop and submit to the City a concurrence letter with bid tabulation of the results of bidding for each Bid Package. The concurrence letter shall include identities of the Bidders, the bid amounts and the identification of the apparent low bidder for each Bid Package consistent with the method for selection identified in the applicable Bid Packages.
vii. Review Of Bids; Recommendations For Award Of Trade Contracts. CMAR shall review submitted Bids to determine: (a) whether the bidder submitting the Bid is a responsible bidder; (b) whether the Bid Proposal is responsive to material bidding requirements for the Bid Package; and (c) the price for the base scope of Work of each Bid Package. CMAR sh -
Item 3A - Page 15
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 Contractors who have obtained Bid Documents. Copies of the CMAR's records relating to for issuing Addenda to respond to bidders' questions.
all make recommendations to the City regarding: (a) rejection of a Bid based upon the "non 55575.38120\40616704.1
11 -
bidding requirements of a Bid Package; (c) rejection of a Bid Proposal for any other reason; (d) rejection of all Bid Proposals; and (e) award of Trade Contracts. The CMAR shall make written recommendations to the City for award of the Trade Contracts. The City will review and provide concurrence that the required bid process was followed. viii. Execution of Trade Contracts by CMAR.
approval of the successful bids recommended for award, CMAR shall execute Trade Contracts with the successful bidders. Upon request by the City the CMAR shall return copies of the executed Trade Contracts and other documents/instruments required to be submitted with the Trade Contracts (including without limitation, Certificates of Insurance, Bonds, etc.), to the Agency. The Trade Contracts shall include an explicit ac retained rights, right to assignment of the Trade Contracts, and all other provisions required by law.
ix. City Retained Rights . Notwithstanding the execution of a Trade Contract pursuant to the foregoing, the City retains the right to have any Trade Contract assigned to the City upon occurrence of: (a) an event of CMAR default under this Agreement which is not cured within the time permitted for cure actions by the CMAR under this Agreement; (b) if the City reasonably determines that the CMAR is encountering adverse financial circumstances; or (c) termination by the City pursuant to the provisions of this Agreement. Assignment of a Trade nd the effective date of such assignment in
accordance with such procedures as are lineated in the assignment. Except for the written notice described above, no other action shall be required of the City or the CMAR to effectuate an assignment of a Trade Contract to the City. Notwithstanding assignment of a Trade Contract to any such assigned Trade Contract shall be in accordance with the provisions of this Agreement.
5. CONSTRUCTION PHASE
a. Administration and Coordination of Trade Contracts and Construction. CMAR shall provide administrative, management and related services necessary to manage the Trade Contracts and to schedule, sequence and coordinate the work of the Trade objectives (including without limitation, budgetary and time objectives) are achieved and that the work of each Trade Contract is completed in strict conformity with the commencement of work under the Trade Contracts; (b) scheduling, coordinating and conducting pre-construction and construction meetings; recording, maintaining and distributing minutes thereof; (c) in consultation with the City, develop and implement procedures for the submission and processing of Submittals required by each Trade Contract; (d) in consultation with the City and the Architect, develop and implement information or clarifications; (e) establish and implement procedures for the transmittal Item 3A - Page 16
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 responsibility" of the bidder; (b) rejection of a Bid Proposal for "non responsiveness" to material Upon the City's review and
knowledgement of CMAR's role and
the City's role, provide the Agency with express rights to enforce the contractual obligations relating to warranty/guarantee obligations and latent defects as well as a description of the City's Contract from the CMAR to the City shall be effectuated by the City's written notice to the CMAR of the City's exercise of its rights of assignment a
from the CMAR to the City pursuant to the foregoing, the CMAR's obligations hereunder relating Contractors during the construction phase of the project so that the City's project requirements of each Trade Contract. The CMAR's responsibilities include without limit:
(a) written notice to the City of the CMAR's intent to issue Notice(s) to Proceed directing procedures for the handling and disposition of the Trade Contractors' requests for 55575.38120\40616704.1
12 and receipt of communications, drawings and other information between the City, , CMAR, Architect, Inspector, Test/Inspection services and the Trade Contractors relating to Project construction; ( (f) schedule, sequence and coordinate activities of the Trade Contractors; (h) allocate Site staging and storage areas among the Trade Contractors; requests; and (i) coordinate and prepare change orders for execution. b. Monitoring of Construction Costs . CMAR will monitor on-going Construction Costs and advise the City of the financial condition of the Project by: (a) development of Project cash flow reports, forecasts and other financial reports to the City, including those reflecting variations between actual Construction Costs and the GMP and estimated costs of unperformed Project activities; (b) maintaining records reflecting the actual costs for activities completed or in progress, including records relating to work performed on a unit cost or lumpsum basis and additional work performed by the Trade Contractors on a time and materials basis; (c) monitor and advise the City of costs pertaining to potential, pending and completed changes to any Trade Contract; and (d) advising and making recommendations to the City for adjustments to the IGMP relative to actual or anticipated Construction Costs. The CMAR shall prepare and submit cost reports (which summarize and present in a logical format the information derived from (a) (d) above, to the City on
a monthly basis; provided that if the City reasonably determines that more frequent cost reports are required, the CMAR shall comply with the directive(s) of the City. The information compiled by the CMAR and reports generated by the CMAR relating to Construction Costs shall be in such detail and format as required by the City. In addition the extent of detail and the nature of the format of such reports, the information compiled by the CMAR and reports generated by the CMAR shall specifically indicate the original Contract Price of each Trade Contract, the extent of adjustment to the original Contract Price for each Trade Contract by City approved Change Orders and the extent of potential further adjustment to the original Contract Price of each Trade Contract as of
c. Substantial Completion; Punchlist. Before the City issues a Certificate of Substantial Completion for the Project, the CMAR shall inspect the Work of each Trade Contractor to verify the achievement by all Trade Contractors of Substantial Completion. If upon such inspection, the CMAR determines that a Trade Contractor has not achieved Substantial Completion, the CMAR shall: (a) identify the portions of the Work of the Trade Contract to be completed in order for Substantial Completion to be achieved; and (b) set forth recommendations for measures to secure Substantial Completion of the Trade Contract. The CMAR shall enforce measures necessary to achieve Substantial Completion of a Trade Contract.
d. Project Progress.
i. Progressing the Baseline Schedule . . During the course of Project construction and based upon updated Baseline Schedules, CMAR shall monitor and update the Baseline Schedule on a monthly basis or more frequently as may be requested from time-to- time by the City so that the City is kept fully informed at all times of the status and progress of overall Project construction. Where the actual rate of Project construction progress is behind Item 3A - Page 17
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 (h) develop and implement procedures for the Trade Contractors' submittal of payment the date of the CMAR's report based upon the Change(s) or potential Change(s) known to the CMAR at the time of the CMAR's preparation of a cost report for a Trade Contract. 55575.38120\40616704.1
13 that indicated by the Baseline Schedule, CMAR shall advise and make recommendations to the City for remedial action. The CMAR shall implement and enforce remedial measures. ii. Coordination of Construction Activities . CMAR shall coordinate the Architect, Inspector, Test/Inspection Service Providers, and others in conformity with the Master construction activities so that Site space is appropriately allocated and the progress of construction per the Baseline Schedule is maintained. Material obligations of the CMAR under this Agreement are scheduling, coordination and sequencing the activities of the Trade Contractors in a manner so that Project construction is completed in accordance with the GMP and Guaranteed Completion Date (GCD), as more particularly described in this Agreement. iii. Progress Records. CMAR will maintain records of the progress of Project construction, including written progress reports and photographs reflecting the status of Project construction and percentage completion. CMAR will maintain daily records during Project construction showing weather conditions, Trade Contractors and their subcontractors at the Site, work accomplished under each Trade Contract, problems encountered and other matters materially affecting the Project, completion of the Project or Construction Costs. iv. Final Completion. Before the City issues a Certificate of Final Completion for the Project, the CMAR shall inspect the Work of each Trade Contractor and confirm that all Trade Contractors have fully complied with all requirements of the Trade Contract relating to the Completion under the Trade Contract has been achieved. If upon such inspection and confirmation, the CMAR determines that the obligations of a Trade Contractor under its Trade Contract have not been fully performed in accordance with the terms of the Trade Contract and that Final Completion has not been achieved, the CMAR shall: (a) identify the portions of the work of the Trade Contract or other obligations of the Trade Contractor to be completed in order for Final Completion to be achieved; and (b) set forth recommendations for measures to secure Final Completion of the Trade Contract. The CMAR shall enforce measures necessary to achieve Final Completion of the Trade Contract.
e. Site Observations.
i. CMAR On-Site. During Project construction and at all times during which there are construction activities under the Trade Contracts at the Site, CMAR shall have its Project Manager or Field Superintendent at the Site, to observe, coordinate and manage the activities of the Trade Contractors. CMAR shall maintain at the Site the Trade Contracts, Drawings, Specifications, approved Change Orders, Submittals, applicable codes, rules and regulations and other written or electronic materials relating to the Project. ii. Construction Quality . CMAR shall guard the City against defects and deficiencies in construction and workmanship on the basis of its Site observations, and a quality control program established and implemented hereunder to monitor the workmanship of the Trade Contractors for conformity with: (a) accepted industry standards; (b) applicable laws, codes, regulations, ordinances or rules; or (c) and the requirements of the Trade Contracts.
The CMAR shall, without adjustment of the Contract Price hereunder or the GMP, as more particularly described in Article 7, below, be responsible for the correction of any portion of the Item 3A - Page 18
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 activities of the Trade Contractors with each other and those of the CMAR, the City, the City's Baseline Schedule, including the coordination and sequencing of Trade Contractors' work and the Trade Contractor's other obligations under the Trade Contract and that Final 55575.38120\40616704.1
14 Project installed or constructed by a Trade Contractor which is not in conformity with accepted industry standards and the requirements of the Trade Contract. iii. Site Safety.
1. General. CMAR shall develop and implement Site safety programs as necessary to comply with applicable law, code, rule or regulation and as appropriate for the Site.
2. afety Program or Requirements . Prior to any Trade
safety program/requirements
programs.
3. Review / Enforcement of Trade Contractor Safety Programs. CMAR shall provide oversight and monitoring of safety programs of the Trade Contractors on the jobsite. CMAR shall require Trade Contractors to provide job hazard analysis sheets for their trade. CMAR shall be required to hold weekly safety meetings to ensure that safety procedures as identified in the job hazard analysis are upheld and documented.
4. Safety Violations; Safety Conditions. CMAR shall promptly notify the identification measures taken by the CMAR to secure
with safety programs/requirements. The CMAR shall monitor and enforce safety programs/requirements. In the event of a safety violation or other unsafe conditions on or about the Project Site which have an immediate potential or actual adverse effect on life or property, the CMAR is authorized to take all actions deemed necessary and appropriate by the CMAR under the then existing circumstances to prevent such actual or potential adverse effect. If the CMAR undertakes action pursuant to the preceding, the CMAR shall immediately notify the City of the: (a) the safety violation or unsafe condition at the Site; (b) the measures undertaken by the CMAR to remedy or mitigate the safety violation/unsafe condition; and (c) other measures recommended by the CMAR to prevent further safety violations/unsafe conditions. iv. Site General Conditions. At all times during construction activities at the Site, the CMAR shall provide or cause to be provided all General Conditions necessary to complete the Project. The Site General Conditions are included in the General Conditions Costs as set forth in this Agreement.
f. Post Construction Work.
i. Review and Transmittal of Trade Contractor Close-Out Documents . The CMAR shall receive from the Trade Contractors the close-out documents and items to be submitted by each Trade Contractor under the terms of their respective Trade Contracts upon Item 3A - Page 19
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 City's S
Contractor's performance of work at the Site, the CMAR Shall review the City's safety program or safety requirements, if any, meet and confer with the City to review the City's and to incorporate the same into the CMAR's Site safety City in writing of all CMAR observed instances of Trade Contractors' failure to comply with applicable safety requirements. The CMAR's written notice shall include Trade Contractors' compliance
implementation of remedial measures to secure Trade Contractors' compliance with 55575.38120\40616704.1
15 completion of obligations under a Trade Contract. The CMAR shall, in conjunction with the -out submittals to determine conformity with
requirements of each Trade Contract; if the
close-out submittals are not in conformity with requirements of the Trade Contract, the CMAR shall take necessary actions to secure compliance with the requirements of the Trade Contract.
Within ten (10) days of receipt from a Trade Contractor, the CMAR shall deliver to the City all of - -built drawings
ecord Drawings.
ii. CMAR Project Records. Within thirty (30) days of the date of issuance of a Certificate of Final Completion for a Trade Contract, the CMAR shall assemble and deliver to the City all of the Project records maintained during the Construction Phase by the CMAR relating to the Trade Contract. Notwithstanding any provision of this Agreement to the contrary or any provision of law to the contrary, all documents, work product, whether of a tangible or intangible nature, whether in draft or final form and whether recorded in writing or any other medium, including without limitation, electronic files relating to the Project or this Agreement are the sole and exclusive property of the City.
iii.
-Construction Obligations. If any Trade Contractor
is obligated under the terms of its Trade Contract to provide work, labor materials or services -
construction activities for conformity with requirements of the Trade Contract. The CMAR shall -construction obligations.
iv. Project Reports. The CMAR shall monitor the filing of any required reports and other actions required by applicable law, rule
any Trade Contractor have not filed required reports or taken other actions required upon completion of the Project, the CMAR shall secure compliance by the Architect or Trade Contractor with regard to such requirements. The CMAR will assist the City in completion of actions to be undertaken by the City upon completion of the Project.
Item 3A - Page 20
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 City, review each Trade Contractor's close
CMAR determines that any Trade Contractor's
the Trade Contractor's close out submittals, except for the Trade Contractor's as which the CMAR shall transmit to the City for the Architect's preparation of the R Trade Contractors' Post
after completion of Project construction, the CMAR shall manage Trade Contractors' post secure Trade Contractors' compliance with their respective post or regulation to be undertaken by the City's
Architect or Trade Contractors upon completion of Project construction. If the City's Architect or 55575.38120\40616704.1
16 6. CMAR COMPENSATION
a. Contract Price Services .
performance of the Services under this Agreement shall consist of the following $1,193,824 which includes bond and insurance costs for completion of the Pre- Construction Phase of the Services; and if the Construction Phase is awarded to the CMAR by the City, (b) a IGMP not to exceed amount of $27,847,923 that includes:
$2,442,650 for General Conditions at the Site during the Construction Phase of the 905,273 for CMAR to
have been awarded, or sooner if the CMAR
chooses, a GMP and revised fixed CMAR Fee will be established, and the Contract Price will be amended accordingly.
b. CMAR Guaranteed Maximum Price and Guaranteed Completion Date . CMAR acknowledges and agrees that the Contract Price set forth in Article 6.1 above is based the date of Final Completion of the
i. GMP; GCD
le
bidder submitting the lowest priced Bid for each Bid Package, the CMAR shall prepare and deliver to the City a written statement setting forth the GMP for the Project and the GCD for the Project for review and acceptance by the City. Within five (5) bu certification in writing that the GMP includes all Construction Costs and costs associated with the Contract Price necessary to complete and deliver the Project. If the City advises the CMAR shall meet and confer in good faith to address and fully resolve any objections or the CMAR to agreement between the City and the CMAR concerning the GMP and the GCD, the City and the CMAR shall execute an amendment to this Agreement setting forth the GMCC and the GCD terminate this Agreement for convenience, pay CMAR any remaining undisputed Contract Price,
ii. Adjustments to GMP During Construction Phase. The GMP reflected in the GMP Amendment prepared pursuant to this Agreement shall not be modified during the Construction Phase except in the event of the following circumstances: (a) the City directs and authorizes a change which is related solely to City discretionary changes (the foregoing excludes changes authorized by the City resulting from errors, omissions or other deficiencies in the Project Design Documents or changes resulting from the acts, omissions or other conduct of the CMAR); (b) unanticipated field conditions which could not be reasonably foreseeable by the CMAR are encountered which requires changes; (c) changes are directed by a governmental agency with jurisdiction over the Project or portions thereof, which could not be Item 3A - Page 21
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 The contract price ("Contract Price") for the CMAR's
components as outlined on Exhibit "C" Cost Proposal Form: (a) a lump sum fixed fee of Project (the "General Conditions Costs"); an initial fixed fee of $ manage Trade Contractors and complete the Construction Phase of the Project ("CMAR Fee"). Once all the Trade Contracts
in part upon the CMAR's guarantee to the City of the maximum Construction Costs for the Project (the "Guaranteed Maximum Price" or GMP) and the CMAR's guarantee of Project (the "Guaranteed Completion Date" or
"GCD"), both established as set forth below.
. Within ten (10) days after the CMAR's completing the trade bids for all Bid Packages and the CMAR's recommendation regarding the identity of the responsib siness days of the City's' receipt
of the CMAR's proposed GMP and GCD, the City shall advise the CMAR of acceptance of the same or modifications thereto necessary for the City's acceptance. The CMAR shall include of any modifications to the CMAR's proposed GMP or its proposed GCD, the CMAR and City' the City's modifications to the CMAR's proposed GMP or its proposed Final GCD. Upon mutual (the "GMP Amendment"). If the negotiations of the GMP are unsuccessful, the City may and proceed without the CMAR in the City's best interest. 55575.38120\40616704.1
17 reasonably foreseen or anticipated by the CMAR at the conclusion of the Pre-Construction Phase of Services under this Agreement; (d) changes are necessitated by amendment(s) or enactment(s) of laws, rules, ordinances or regulations applicable to the Project or portions thereof which could not be reasonably anticipated or foreseen by the CMAR at the conclusion of the Pre-Construction Phase of Services; or (e) changes resulting from emergencies not caused, in whole or in part, by the acts, omissions or other conduct of the CMAR or its employees, agents or representatives. Adjustments to the GMP shall be reflected in a written amendment to the GMP Amendment duly e
foregoing, the Contract Price for Services under this Agreement shall not be modified. iii. Adjustment to GCD During Construction Phase. The GCD shall be subject to amendment during the Construction Phase only if: (a) the GMP is modified in accordance with this Agreement and the modified GMP directly affects the time for completion of Project construction; (b) the City directs or authorizes the suspension of construction of the Project as a whole or in part and such directive or authorization actually delays Final Completion of the Project; (c) the City directs or authorizes delays to construction of the Project as a whole or in part and such directive or authorization actually delays Final Completion of the Project; or (d) completion of construction of the Project is delayed by the acts or omissions of the City or its employees, agents or representatives. Adjustments to the GCD on account of a circumstance described above shall be reflected in GMP Adjustment Amendments duly executed by the City and the CMAR.
iv. CMAR Notice of Adjustments to GMP or GCD . An express condition precedent to any obligation of the City to consider or to adjust the GMP or the GCD is the occurrence of a circumstance which the CMAR believes is justification for adjustment of the GMP or GCD. The failure of the CMAR to deliver written notice to the City of the occurrence of circumstances the CMAR believes is justification for modification of the GMP or the GCD shall circumstances. If the CMAR provides such written notice, the City shall thereafter promptly consider the request and equitably adjust the GMP or the GCD, as applicable. If the source or nature of a basis for adjustment of the GMP or the GCD is on- written notice within the time set forth above after the Initial occurrence of such event shall be deemed sufficient notice.
1. GMP Adjustments. If the CMAR has provided written notice in strict conformity with the foregoing, the extent of adjustment of the GMP shall be equal to the amount of the adjustment of the Contract Price of the Trade Contract(s) affected by the circumstances set forth in this Agreement.
2. GCD Adjustments. The GCD shall be adjusted only to the extent that Final Completion of Project construction is or will be delayed by circumstances justifying adjustment of the GCD, as forth in this Agreement. The CMAR acknowledges and agrees that the adjustment of Contract Time which does not have an effect on the Final Completion of the Project shall not be a basis for adjustment of the GCD. v. Contractor Contingency . In addition to the amount of the GMP, the Contractor will be allowed to carry a contingency made up of any savings from the bid/trade Item 3A - Page 22
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 xecuted by the City and the CMAR ("GMP
Adjustment Amendments"). Notwithstanding any adjustments to the GMP pursuant to the CMAR's delivery of written notice to the City no more than twenty (20) days following the initial be deemed the CMAR's waiver of any right to modification of the GMP or the GCD for such going, the CMAR's delivery of
55575.38120\40616704.1
18 cy shall be used and expended for
changes evaluated on a case-by-case basis as determined by the City if such changes have been unreasonable to foresee and included in the CMAR's Constructability Review ("Site Conditions and Changes). The Contingency shall be used to pay for additional construction costs necessarily incurred to address and resolve such unforeseen changes. All such costs reflected as subcontractor Change Orders shall be deducted from the Contingency until the Contingency is exhausted. No portion of the Contingency may be applied to costs arising out of unforeseen changes unless approved by the City. Any portion of the Contingency applied to costs arising out of unforeseen changes shall be reflected in a written instrument duly executed on behalf of the City. It is agreed that the Contingency can be utilized for minor errors and omissions in the contract documents, scope gaps, minor rework and trade damage. vi. CMAR Responsibility for Construction Costs Exceeding GMP . If the Project Construction Costs exceed the GMP plus the Contingency, including all adjustments to the GMP in accordance with this Agreement, the CMAR shall be solely responsible for all Construction Costs exceeding such amount.
vii. CMAR Responsibility for CMAR Caused Delays. If Substantial Completion of the Project occurs after the GCD (including adjustments to the GCD in conformity with this Agreement) and such delay is caused by the CMAR, the CMAR acknowledges and agrees that the City will sustain losses, damages and costs which are extremely difficult to fix and ascertain.
Accordingly, if Substantial Completion of the Project is not achieved within the GCD (including adjustments thereto) due to acts, omissions or other conduct of the CMAR, the CMAR agrees to pay to the City as damages and not a penalty, the amount outlined in the Special Provisions per calendar day beyond the adjusted GCD date until Substantial Completion of the Project is
Completion of the Project not to be achieved as of the applicable GCD and there is any remaining balance of the Contract Price for Services held by the City at such time, the City may thereafter withhold disbursement(s) of the Contract Price otherwise due the CMAR under this Agreement. CMAR Liquidated Damages shall constitute the sole and exclusive remedy available to City for CMAR-caused delays beyond the GCD. c. City Payments of the Contract Price.
i. CMAR Monthly Payment Requests . Pursuant to the Special Provisions, CMAR shall submit to City on forms approved by City a written request for payment of the Contract Price, together with such supporting data as City may request, covering the amount of the Project work then completed. Unless specified otherwise, such request and supporting data shall be submitted by CMAR so that it is received by City no later than the last day of the month progress payment of the Contract Price to the CMAR in the amount of 95% of the estimated value of the Project work performed through the date of the payment request. ii.
. Pursuant to the
Special Provisions, CMAR shall develop and implement procedures for Trade Contra submittal of applications for progress payments and the review, processing and disbursement of progress payments to Trade Contractors, along with associated forms and reporting systems.
CMAR shall review and certify to the City the amount due on Tr Item 3A - Page 23
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 packages in the GMP ("Contingency"). The Contingen
achieved ("CMAR Liquidated Damages"). If acts or omissions of the CMAR cause Substantial preceding the month in which payment will be made. Upon City's approval, City will make a Trade Contractors' Applications for Progress Payments
ctors'
ade Contractors' application for
progress payment, CMAR's progress payment certifications shall constitute CMAR's 55575.38120\40616704.1
19 the Site, the data in each application for progre
knowledge, information and belief, the work covered by the Trade Contract has progressed to the point indicated in the application for progress payment and the quality of the work covered by the Trade Contract is in accordance with the Contract Documents for the Trade Contract subject only to results of subsequent tests, inspections and other procedures, minor deviations from requirements of the Trade Contracts correctable prior to completion and any specific qualificat
to the preceding shall be a representation that the Trade Contractor(s) is/are entitled to payment ss payment shall be
undertaken and completed in a timely manner so that its progress payments due each Trade Contractor are disbursed within the time permitted by applicable law without incurring interest liability or other penalties/liabilities.
iii. City Disbursement of Progress Payments. The City shall disburse proceeds to CMAR due for progress payments due Trade Contractors under a Trade Contract upon supporting the T
CMAR, Architect, and City Inspector of the amount due the Trade Contractor on such payment request, based on the applicable provisions of the Trade Contract. Pursuant to the Special to the City, the City shall make payment to CMAR of the amount verified by CMAR, City Engineer, and City Inspector as being due the Trade Contract, except to the extent that the prevailing wage rate violations or other withholdings of payment(s) due the Trade Contract under the terms of the Trade Contract, Special Provisions, or by operation of law. In accordance with the Special Provisions, CMAR shall disburse the same to the Trade Contractor. CMAR shall ensure that all such progress payments are timely made under applicable law and the Special Provisions. CMAR shall indemnify the City against any and all claims arising from or related to the failure of CMAR to comply with the prompt payment requirements under the Public Contract late payment
results in CMAR receiving payment designated for a Trade Contractor from the City, thirty (30)
iv. City Payments of Contract Price. City shall make payment to CMAR within thirty (30) days of receipt of an undisputed payment request or the resolution of any billing dispute. City may withhold a portion of an application for payment because of defective work not remedied or unsatisfactory prosecution of the work by the CMAR. City will release any withheld funds upon CMAR satisfactorily remedying the issue that resulted in the withholding.
City will not pay late fees to the CMAR on the compensation due CMAR under the terms of this Agreement. Payment shall not constitute acceptance of any work completed by CMAR. The making of final payment shall not constitute a waiver of any claims by City for any reason whatsoever. The foregoing shall be in accordance with the Special Provisions.
7. INSURANCE AND INDEMNITY
a. CMAR Insurance
Professional Liability/Errors and Omissions Liability Insurance in an amount not less than Item 3A - Page 24
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 representation to the City that, based on CMAR's observations and professional evaluation at ss payment, and to the best of CMAR's
ions expressed by CMAR in its certification. CMAR's issuance of a certificate pursuant in the amount so certified. CMAR's review of applications for progre CMAR's presentation of: (a) the Trade Contractor's request for payment; (b) documentation rade Contractor's payment request; and (c) the verification/certification from Provisions and within thirty (30) days of the date of CMAR's submission of all of the foregoing City's payment of such amount or any portion thereof is subject to withholdings for stop notice, Code unless the City makes payment to CMAR after thirty (30) days and the City's days after CMAR's application for progress payment.
. CMAR shall procure and maintain, at CMAR's expense all insurance specified in Special Provisions. CMAR shall procure and maintain, at CMAR's expense 55575.38120\40616704.1
20 $5 million per occurrence or claim and in the aggregate and meeting the general policy requirements set forth the Special Provisions. With respect to Professional Liability, coverage must be maintained, and evidence provided, for three (3) years following the termination of this Agreement.
b. Indemnity. CMAR shall indemnify the City as specified in Special Provisions.
8. TERMINATION; SUSPENSION
a. Termination. City may terminate this Agreement as set forth in the Special Provisions. b. Suspension. City may suspend this Agreement as set forth in the Special Provisions.
9. WORK PRODUCT
a. Work Product. All original papers, maps, models, designs, studies, surveys, reports, data, notes, computer files, documents, drawings and other work product (collectively documents which are required to be filed with public agencies, shall be deemed solely the property of City. CMAR will take such steps as are necessary to perfect or protect the ownership interest of City in such Work Product. Upon completion, expiration or termination of this Agreement, CMAR shall turn over to City all such original Work
10. GENERAL PROVISIONS
a. Notices. Any notice to be given by any Party hereunder must be given in writing and delivered in person, or by reputable nationwide overnight courier (e.g., Federal Express), or forwarded by certified or registered mail, postage prepaid, return receipt requested, at the address indicated below, unless the Party giving such notice has been notified, in writing, of a change of address:
CITY: CMAR:
City of Palm Springs
3200 E. Tahquitz Way
Palm Springs, CA 92262
Attention: Director of Engineering
Skanska USA Building, Inc.
633 W Fifth St., 68th Floor
Los Angeles, CA 90071
Attn: Dave Christensen
Any such notice is effective on the date on which such notice is delivered, if notice is given by personal delivery or overnight courier, or if notice is sent through the United States mail, three (3) days following the date of mailing, whichever first occurs. b. Conflicts. This Agreement and its exhibits are intended to be complementary in nature; however, in the event of a conflict, the terms of this Agreement shall control. c. Separate Contracts. CMAR understands that this is not an exclusive Agreement and that City shall have the right to negotiate with and enter into separate contracts with Item 3A - Page 25
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 "Work Product") of CMAR produced by CMAR pursuant to this Agreement, except Product in CMAR's possession or control.
on the date of actual delivery as shown by the addressee's receipt or upon the expiration of 55575.38120\40616704.1
21 others providing the same or similar services as those provided by CMAR as City desires.
d. Notification. In the event of a problem or potential problem that could impact the quality or quantity of work, services or the level of performance under this Agreement, the CMAR shall, within one (1) business day of actual knowledge of the problem or potential problem, notify City in writing and by telephone.
e. Compliance. All work, labor and materials shall be done and provided in strict conformity with each of the following: (i) all laws, ordinances, codes, rules, regulations work; and (ii) this Agreement. C
requirements of inspectors of any governmental authority having jurisdiction over inspections and approvals for the work completed under this Agreement. f. Disputes. If any disputes should arise between the Parties concerning the work to be done under this Agreement, the dispute shall be resolved in accordance with the dispute resolution procedures in the Special Provisions.
g. No Waiver. The fact that City has made payment under this Agreement shall not be interpreted so as to imply City has inspected, approved or accepted the work which has been performed by CMAR. No delay or omission in the exercise of any right or remedy by the nondefaulting Party on any default shall impair such right or remedy or be unnecessa
by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of the Agreement. h. Assignment and Subcontractors. CMAR shall not assign or subcontract any portion of the work to be performed under this Agreement or any of the rights or obligations under this Agreement, without the prior written consent of City, which consent may be and absolute discretion. Any attempted assignment in violation of the provisions of this paragraph shall be void ab initio. Subject to the foregoing, this Agreement shall be binding upon the heirs, administrators, successors and assigns of City and CMAR.
i. Independent Contractor. CMAR shall act as an independent contractor in the performance of the services provided for in this Agreement and shall furnish such considered an agent or employee of City, maintaining complete control over all men and operations. No provisions of this Agreement shall be intended to create a partnership or joint venture between CMAR and City and neither Party shall have the power to bind or obligate the other Party, except as expressly set forth in this Agreement. j. Non-Liability of City Officials and Employees. No official or employee of City shall be personally liable to the CMAR in the event of any default or breach by City or for any Item 3A - Page 26
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 and standard specifications of governmental authorities having jurisdiction over CMAR's MAR shall also comply, at CMAR's expense, with all
CMAR's work. CMAR will be responsible for securing any and all required governmental construed as a waiver. A Party's consent to or approval of any act by the other Party requiring the Party's consent or approval shall not be deemed to waive or render ry the other Party's consent to or approval of any subsequent act. Any waiver withheld in City's sole
services in CMAR's own manner and method and in no respect shall CMAR be 55575.38120\40616704.1
22 amount which may become due to the CMAR or for any breach of the terms of this Agreement.
k. Conflict of Interest. No director, officer or employee of City shall have any financial interest, direct or indirect, in this Agreement nor shall any such director, officer or employee participate in any decision relating to this Agreement which affects his/her financial interest or the financial interest of any corporation, partnership, entity or association in which he/she is directly or indirectly interested, in violation of any state or federal statute or regulation. The CMAR warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement.
l. Best Efforts. CMAR recognizes the relations of trust and confidence that are established by this Agreement, and covenants with City to furnish his/her best skill and judgment, and to actively cooperate and assist in furthering the best interests of City in all matters pertaining to the work. The CMAR agrees to furnish efficient business administration and capable supervision, and to use every effort to keep upon the work an adequate supply of workmen and materials in order to secure its execution in the ests. The
City.
m. Confidential Information. All information gained or Work Product produced by CMAR in the performance of this Agreement will be considered confidential, unless such information is in the public domain. CMAR shall not release or disclose any such information or Work Product to persons or entities other than City without the prior written consent of the City, except as otherwise required by law. CMAR shall promptly notify City should CMAR, or its Representatives, be served summons, complaint, subpoena, notice of deposition, request for documents, interrogatories, requests for admissions or other discovery request or court order from any third party regarding this Agreement and the services performed under this Agreement.
n. Amendment. This Agreement may not be amended except by a subsequent writing which is signed by the Parties.
o. Cooperation. CMAR shall cooperate in the performance of work with City and all other agents.
p. Incorporation of Recitals; Exhibits. The Recitals and Exhibits are incorporated herein and are an operative part of this Agreement.
q. Governing Law, Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. The Parties agree that any action or proceeding to enforce or relating to this Agreement shall be brought exclusively in the federal or state courts located in Riverside County, California, and the Parties hereto consent to the exercise of personal jurisdiction over them by any such courts for purposes of any such action or proceeding
Item 3A - Page 27
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 most expeditious and economical manner consistent with City's best inter CMAR's employees assigned to the work shall at all times be reasonably satisfactory to 55575.38120\40616704.1
23 r. Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be void, invalid or unenforceable, then the Parties agree that such invalidity or unenforceability shall have no effect whatsoever on the balance of this Agreement. s. Counterparts. This Agreement may be signed and delivered in any number of counterparts, each of which, when signed and delivered, shall be an original, but all of which shall together constitute one and the same Agreement. t. Entire Agreement. This Agreement contains the entire agreement between the Parties with respect to the subject matter of this Agreement and any agreement or representation with respect to the same or the obligations of either Party with respect to the same which is not expressly provided in this Agreement or in a written document which is signed by the Party to be charged, shall be null and void. u. Time is of the Essence. Time shall be of the essence as to all dates and times of performance contained in this Agreement.
v. Authority to Execute. Each Party represents and warrants to the other Party that all necessary action has been taken by such Party to authorize the undersigned to execute this Agreement and to bind it to the performance of its obligations hereunder. w. Binding on Successors. All representations, covenants and warranties set forth in this Agreement, by or on behalf of, or for the benefit of any or all of the Parties hereto, shall be binding upon and inure to the benefit of such Party, its successors and assigns. x. Survival. All rights and obligations hereunder that by their nature are to continue after any expiration or termination of this Agreement, including, but not limited to, the indemnification obligations, shall survive any such expiration or termination. y. Third Party Rights. Nothing in this Agreement shall be construed to give any rights or benefits to anyone other than City and the CMAR.
z. Covenant Against Discrimination. In connection with its performance under this Agreement, CMAR shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin ( i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, ensure that applicants are employed, and that employees are treated during their employment, without regard to any prohibited basis. As a c lawful capacity to enter this Agreement, and in executing this Agreement, CMAR certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any CMAR activity, including but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that CMAR is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting.
Item 3A - Page 28
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 physical or mental disability, or medical condition (each a "prohibited basis"). CMAR shall ondition precedent to City's
55575.38120\40616704.1
24 aa. Project Labor Agreement.
i.
the City, available upon request, and incorporated herein by reference as if fully set forth herein.
CMAR and all subcontractors of any tier shall at all times comply with the requirements of the PLA in the prosecution of the Work.
ii. CMAR has executed or agrees to execute and be bound by the terms of the PLA and CMAR shall furnish evidence of compliance with the same to City prior to the commencement of any work. CMAR further agrees to require, or has already required, each of the Trade Contractors and their subcontractors, of whatever tier, to agree to be bound by each and every provision of the PLA prior to the commencement of work or at the time of such subcontract, whichever occurs first.
iii.
subcontractors of any tier to include, contractual provisions in all contracts they enter into for the performance of the work, requiring each subcontractor, of every tier, who furnishes any labor for the performance of work, to comply with the provisions of the PLA at no additional cost. iv. Subcontractors of any tier with the
v. Any requirement currently set forth in, or hereafter developed, adopted or implemented pursuant to the terms of the PLA, that is applicable to the Project, that is not set forth herein or that is by mistake incorrectly stated, shall be deemed to be inserted in this Agreement and shall be read and enforced as though it were included herein; and, if through mistake or otherwise any such requirement is not inserted or if inserted and requires correction, then upon request of either party this Agreement shall forthwith be amended to make such insertion or correction.
vi. In the event of a conflict between the PLA and any other provisions of this Agreement, the PLA shall control.
vii. CMAR represents and warrants that it has included in its bid all costs of compliance with the requirements of this Section.
viii. The requirements of this Section are in addition to, and not a limitation upon, the other applicable provisions of the Contract Documents. bb. Federal Funding Requirements.
i. Funds from the Federal Aviation Administration Federal Funding Requirements E
Notwithstanding any other provisions in this Agreement, including, but not limited to, the Special Provisions, profit must be separately negotiated as an element of price for all changes to the Contract Price. To establish a fair and reasonable profit, consideration must be given to the complexity investment, the amount of subcontracting, the quality of its record of past performance, and industry Item 3A - Page 29
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 The Agreement is subject to the City's Community Workforce Agreement dated August 31, 2021 ("CWA" or "Project Labor Agreement" or "PLA"), a copy of which is on file with CMAR shall include, and shall require all of CMAR's Trade Contractors and Compliance by CMAR and all of CMAR's
requirements of the PLA shall be a condition of CMAR's right to payment under this Agreement. attached hereto as Exhibit " " and incorporated herein by reference; and of the extra work, the risk borne by the CMAR or Trade Contractor, the CMAR's or Trade Contractor's 55575.38120\40616704.1
25 profit rates in the surrounding geographical area for similar work. All costs must be (i) necessary and reasonable; (ii) allocable to the project; and (iii) adequately documented. Additionally, the CMAR shall only direct the Trade Contractor to perform time and materials work after a determination by the CMAR that no other type of change order is suitable for the extra work (for example, a lump sum amount) and the change order for the time and materials work shall include a ceiling price that the Trade Contractor exceeds at its own risk.
Each Trade Contract shall contain a provision making them subject to all of the provisions stipulated in this Agreement. With respect to any conflict between such federal requirements and the terms of this Agreement and/or the provisions of state law and except as otherwise required under federal law or regulation, the more stringent requirement shall control. cc. Compliance with Economic Sanctions in Response to Russia's Actions in Ukraine.
When funding for the services is provided, in whole or in part, by an agency controlled of the State of California, Consultant shall fully and adequately comply with California Executive Order N-6-
process, Consultant shall also certify compliance with the Russian Sanctions Program during the solicitation process incorporated herein by reference. Consultant shall also require any subconsultants to comply with the Russian Sanctions Program and certify compliance pursuant to this Section.
Item 3A - Page 30
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 22 ("Russian Sanctions Program"). As part of this compliance 55575.38120\40616704.1
26 SIGNATURE PAGE TO AGREEMENT BY AND BETWEEN THE CITY OF PALM SPRINGS AND SKANSKA USA BUILDING INC.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below.
CONTRACTOR:
By: _______________________________________ By: _________________________________________ Signature Signature
(2nd signature required for Corporations)
Date: Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: _______ Item No.
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By: _____________________________ City Attorney City Clerk
APPROVED:
By: _______________________________ Date:
City Manager over $50,000
Deputy/Assistant City Manager up to $50,000
Director up to $25,000
Manager up to $5,000
Item 3A - Page 31
DocuSign Envelope ID: 43CA5BEC- 7883-44E2 -BDA0-1822497C7AE4 7/17/2023 7/17/2023
PART II -- SPECIAL PROVISIONS
GENERAL CONTENTS - PAGE 1
CITY OF PALM SPRINGS SPECIAL PROVISIONS FOR CONSTRUCTION
CITY OF PALM SPRINGS
ENGINEERING SERVICES DEPARTMENT
SPECIAL PROVISIONS
INBOUND BAGGAGE CLAIM PROJECT
PALM SPRINGS INTERNATIONAL AIRPORT
Section 1 - General, Terms, Definitions, Abbreviations, Units of Measure, and Symbols Section 2 - Scope of the Work
Section 3 - Control of the Work
Section 4 - Control of Materials
Section 5 - Legal Relations and Responsibilities
Section 6 - Prosecution and Progress of the Work
Section 7 - Measurement and Payment
Section 8 - Facilities for Agency Personnel
Item 3A - Page 32
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 EXHIBIT "A"
PART II -- SPECIAL PROVISIONS
GENERAL CONTENTS - PAGE 1
* * * *
Item 3A - Page 33
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4
SPECIAL PROVISIONS - SECTION 1 - PAGE 1
CITY OF PALM SPRINGS
ENGINEERING SERVICES DEPARTMENT
SPECIAL PROVISIONS
INBOUND BAGGAGE CLAIM PROJECT
AT PALM SPRINGS INTERNATIONAL AIRPORT
SECTION 1 GENERAL TERMS, DEFINITIONS, ABBREVIATIONS, AND SYMBOLS
INTRODUCTION
Standard Specifications. - The Work hereunder shall be done in accordance with the Standard supplements, addenda, and revisions thereof, these Special Provisions, and the technical specifications and plans provided by the Architect, insofar as the same may apply to, and be in accordance with, the following Special Provisions.
and these Special Provisions, the Special Provisions shall take precedence over, and be used in lieu of, such conflicting portions.
Supplementary Reference Specifications. - Insofar as references may be made in these Special Provisions to the Caltrans Standard Specifications 2021 Edition, such work shall conform to the referenced portions of the technical provisions only of said reference specifications, provided, that specified in the above paragraph.
Amended Standard Specifications. - The amendments identified herein this Special Provisions are revisions to certain provi
work on this contract.
1-1 GENERAL. DELETE in its entirety and SUBSTITUTE with the following:
terms of like import are used, it shall be understood that the direction, requirements, permission, erms of like import shall mean approved or acceptable to or satisfactory to the Engineer, unless otherwise expressly stated.
expressly stated.
Item 3A - Page 34
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 Specifications for Public Works Construction ("Greenback''), 2021 Edition, including all current In case of conflict between the Standard Specifications for Public Works Construction ("Greenback") wherever the term "Standard Specifications" is used without the prefix "Caltrans," it shall mean the Standard Specifications for Public Works Construction ("Greenback"), 2021 Edition, as previously sions of the Standard Specifications, and shall apply to the Contractor's Whenever the terms "directed," "required," "permitted," "ordered," "designated," "prescribed," or order, designation, or prescription of the Engineer is intended. Similarly, the terms "approved," "acceptable," "satisfactory," "or equal," or t
The word "provide" or "construct" shall be understood to mean furnish and install, unless otherwise
SPECIAL PROVISIONS - SECTION 1 - PAGE 2
1-2 TERMS AND DEFINITIONS.
Contract Price DELETE in its entirety and SUBSTITUTE with the following:
The total amount for which the Contract is awarded plus approved Change Order(s).
Engineer ADD the following:
Authorized agents of the Engineer may be referred to as Resident Engineer, Principal Engineer, or Deputy Director, who are charged with conducting detailed administration and inspection of the Contract.
ADD the following definitions:
Acceptance - Formal action of the City in determining that the completed in accordance with the Contract Documents, filing a Notice of Completion (NOC) with the County Recorder, and notifying the Contractor in writing of the acceptability of the Work.
Act(s) of God - A cataclysmic phenomenon of nature, such as an earthquake, flood, or cyclone (tornado). Events which shall not be construed as Acts of God include wind, wind shear, micro- bursts, rain, high water, storm water runoff, or other natural phenomena which might reasonably have been anticipated from historical records of the general locality of the Work.
Agent - Any individual, firm, association, partnership, corporation, trust, joint venture or other legal entity, e.g., the Project Manager and Consultants, employed by the City for services on this Project.
Allowance
pre-authorized items of Work in accordance with Contract Documents. The unused portions of the Allowances shall revert to the City upon Acceptance of the Project.
Apparent Low Bidder - The Bidder whose Bid, having been publicly opened and read aloud, meets the material requirements of the Bid Documents, and whose Bid price is the lowest received.
Applicable Laws - Laws, statutes, ordinances, rules, orders, and regulations of governmental authorities and courts having jurisdiction over the Project.
Application for Payment - The document prepared by the Contractor which is submitted to the City ess payments.
As-builts - The CADD drawings prepared from the approved Red-lines for record keeping purposes.
Award of Contract (Award) - Date on which the City Manager or designee executes the Contract Documents and conditions precedent to award have been satisfied.
Board
The City Council of the City of Palm Springs.
Business Day - See Working Day.
CEQA - The California Environmental Quality Act.
Item 3A - Page 35
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 Contractor's Work has been
- Payment under "AL" Allowance Bid items will be based on the actual expenditures for showing the Contractor's entitlement to progr
SPECIAL PROVISIONS - SECTION 1 - PAGE 3
City - The City of Palm Springs. See Agency.
City Forces - Employees of City who perform construction field work on public works projects as outlined in the Contract Documents.
Change Proposal - Proposal for a Change Order submitted by the Contractor to the City, either at
Claim - A written demand by the Contractor that seeks an adjustment in the Contract Price or the Contract Time, or other relief associated with a dispute arising under or relating to the Contract, including a breach of any provision thereof. A written demand by the Contractor is not a Claim unless:
1) the written demand conforms to the requirements of Section 2- and 2) the City has previously denied a request by the Contractor for a Change Order seeking the demanded relief. Further, a voucher, invoice, or other routine request for payment that is not in dispute when submitted is not a Claim. A Claim made in accordance with this contract shall not qualify as a claim against City for the purposes of the California Government Code.
Consultant - The individual, partnership, corporation, joint-venture, or other legal entity named as such in the Contract Documents or succeeding entity (e.g., architects and engineers) employed by the City for Project design or other specialized services and who function under the direction of the Engineer.
Construction Documents
including plans showing installation of major systems, equipment, fixed furnishings and graphics, the technical specifications and all other technical drawings, schedules, diagrams and specifications, accepted Shop Drawings, Working Drawings, and submittals that are necessary to set forth in detail the requirements for the Project that are necessary to set forth in detail the requirements for the Project.
Construction Manager - The person designated, in writing, by the City to act as its representative at the Site and to perform construction inspection services and administrative functions relating to this contract e.g., to make initial decisions regarding questions which may arise as to the quality or acceptability of materials furnished and Work performed, as to the manner of performance, and rate of progress of the Work under the Contract. Initial contact by the Contractor with the City shall be through the Construction Manager. The Construction Manager oversees and enforces the Contract lement to compensation.
The Construction Manager may be an employee of the City or an independent Consultant contracted to represent the City.
If a Construction Manager is not provided by the City, references to Construction Manager shall be the same as Resident Engineer.
Contract Time - The number of successive Days or Working Days stated in the Contract Documents for the completion of the Work.
Item 3A - Page 36
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 the request of the City, or at the Contractor's own initiative. 12, "Dispute Resolution Process";
- Construction Documents shall be the Contractor's plans and details, Documents and makes initial decisions with respect to the Contractor's fulfillment of the Contract obligations and the Contractor's entit
SPECIAL PROVISIONS - SECTION 1 - PAGE 4
Defective Work - Work that is unsatisfactory, faulty, deficient, does not conform to the Contract Documents, does not meet the requirements of any inspection, reference standard, test, or approval referred to in the Contract Documents; unauthorized material substitutions; or Work that has been damaged by anyone other than City prior to Final Acceptance.
Demobilization -
temporary facilities, equipment, materials, and personnel at the Site.
Drawings See Plans.
Execution of Contract - Date of See Award of Contract.
Field Order - A Field Order is a written order by the Engineer to compensate the Contractor for items of work, as further defined in 7-
Contract Time, or both.
Final Acceptance See Acceptance.
Final Completion - Satisfactory completion of Work required by this contract as evidenced by the recorded NOC with Riverside County.
Final Payment - The last payment for this contract made by City to the Contractor when all applicable requirements have been met.
Hazardous Materials or Waste - Items identified in Section 104 of the Solid Waste Disposal Act (42 USC Section 6901, et seq.) as amended from time to time or, as defined in Section 25117 of the Health and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in accordance with provisions of existing law, whichever is more restrictive.
Holiday - The City-observed holidays are listed below. If any holiday listed falls on a Friday or Saturday, then the preceding Thursday is considered a legal holiday. If the holiday falls on a Sunday, then the following Monday will is considered a legal holiday. See the following page for the Holiday schedule:
January 1
Martin Luther King Day Third Monday in January
Third Monday in February
Memorial Day Last Monday in May
Independence Day July 4
Labor Day First Monday in September
November 11
Thanksgiving Day Fourth Thursday in November
Day after Thanksgiving Day Fourth Friday in November
Christmas Eve December 24
Christmas Day December 25
Item 3A - Page 37
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 The complete dismantling and removal by the Contractor of all of the Contractor's
3.9, "Field Orders." A field order shall not increase Contract Price, New Year's Day
President's Day
Veteran's Day
SPECIAL PROVISIONS - SECTION 1 - PAGE 5
Legal Address- The official address of the City shall be City of Palm Springs, 3200 East Tahquitz Canyon Way, Palm Springs, CA 92262, or such other address as the City may subsequently designate in written notice to the Contractor. The official address of the Engineer shall be the City Engineer, City of Palm Springs, 3200 East Tahquitz Canyon Way, Palm Springs, CA 92262, or such other address as the Engineer may subsequently designate in writing to the Contractor.
Limited Notice To Proceed A written notice given from the City authorizing initiation of a limited amount of work that is not Construction Work, e.g., finalizing subcontract agreements, ordering materials, mobilization, furnishing a field office, Design Work, and any other preliminary work done prior to performing Construction Work.
Milestone(s) - Principal event(s) specified in the Contract Documents relating to an intermediate completion date of a portion of the Work, or a period of time within which the portion of the Work shall be performed prior to Completion of the Work. Liquidated damages are frequently associated with Milestones.
Markout - The temporary marking/painting of the ground, pavement, or sidewalk by the facility or utility owner or its representative. Markouts identify the approximate location of the existing buried utilities in the vicinity of planned construction for the convenience of the Contractor.
Mayor or designee - The City of Palm Springs Mayor or a designated representative.
Normal Working Hours - Unless specified otherwise, 7:00 AM to 4:00 PM, Monday through Friday, inclusive. Saturdays, Sundays, and City holidays are excluded.
Notice of Completion (NOC) -
file with the County Recorder a NOC which stipulates the date that the Work was accepted. The conditions of warranty in accordance with Section 3-13 COMPLETION, ACCEPTANCE, AND Documents.
Owner See City.
Party or Parties - The City, the Contractor, or both, their respective permitted successors or assigns, and any other future signatories to this contract.
Prime Contractor See Contractor.
Product Data - Illustrations, standard schedules, performance charts, instructions, brochures, diagrams, and other information furnished by the Contractor to illustrate materials or equipment for any portion of the Work.
Project - The Project is the object of this contract to be constructed by the Contractor as described and shown in the Contract Documents.
Project Manager - The individual charged with overall responsibility for the Project.
Project Site - All areas where Work is to be performed pursuant to this contract. Project Site may also be referred to as Site and Work Site.
Item 3A - Page 38
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 If, in the City's judgment, the Work has been completed, the City will WARRANTY" shall commence on the date of NOC unless stated otherwise in the Contract
SPECIAL PROVISIONS - SECTION 1 - PAGE 6
Red-lines - Plans with annotations of changes made during construction, in red, to reflect the actual product built during construction.
Request for Information (RFI) - The written request for information made by the Contractor to City to clarify any parts of the Contract Documents.
Retention - The amount withheld by the City from the money due to the Contractor in accordance with 9-
Punchlist - List of items or corrections required to comply with Contract Documents.
Samples - Physical examples of materials, equipment, or workmanship that are representative of some portion of the Project and that establish the standards by which such portion of the Project will be judged.
Schedule Contractor prepared and City accepted Critical Path Method (CPM) schedule in accordance with 6-
these Special Provisions.
Separate Contractors - Those individuals or entities who have entered into arrangements with the City for the provision of labor, materials, or other services in connection with the Project who are not under contract with the Contractor.
Services - Professional services, including design, engineering, and construction management of the Project that are required in accordance with the Contract Documents.
Shop Drawings
Drawings submitted by the Contractor showing details of manufactured or assembled products proposed to be incorporated into Work.
Subconsultant See Subcontractor.
Subcontract - Agreement between the Contractor and another person or entity engaged to perform a portion of the Work.
Submittals - The information, materials, or Sample(s) specified for submission to the City in accordance with this contract.
Supplier - Manufacturer, fabricator, distributor, or vendor.
Walk-through - The procedure used by the City to evaluate status of the Project and generate a Punchlist.
Work
completing the Project in accordance with the Contract Documents.
Working Drawings Drawings submitted by the Contractor showing details of work not shown on the Plans.
Item 3A - Page 39
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4
3.2, "Partial and Final Payment".
1, "CONSTRUCTION SCHEDULE AND COMMENCEMENT OF THE WORK" of - The term "the Work" or 'Work'' generally defines all of the activities of the Contractor in
SPECIAL PROVISIONS - SECTION 1 - PAGE 7
1-6.2 SUBCONTRACTOR LISTING. ADD the following:
The use of Subcontractors in no way relieves you of any obligations or responsibilities under the Contract.
ADD 1-6.4.1 Nondiscrimination Statement.
The contractor, subrecipient or subcontractor will never exclude any person from participation in, deny any person the benefits of, or otherwise discriminate against anyone in connection with the award and performance of any contract covered by 49 CFR 26 on the basis of race, color, sex, or national origin. In administering the City components of the DBE Program Plan, the contractor, subrecipient or subcontractor will not, directly, or through contractual or other arrangements, use criteria or methods of administration that have the effect of defeating or substantially impairing accomplishment of the objectives of the DBE Program Plan with respect to individuals of a particular race, color, sex, or national origin.
ADD 1-6.4.2 Contract Assurance.
Under 49 CFR 26.13(b):
The contractor, subrecipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The contractor shall carry out applicable requirements of 49 CFR 26 in the award and administration of federal-aid contracts. Failure by the contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy as the recipient deems appropriate, which may include, but is not limited to:
Withholding monthly progress payments;
Assessing sanctions;
Liquidated damages; and/or
Disqualifying the contractor from future bidding as non-responsible.
ADD 1-6.4.3 Prompt Progress Payment.
The prime contractor or subcontractor shall pay to any subcontractor, not later than seven days after receipt of each progress payment, unless otherwise agreed to in writing, the respective amounts allowed the contractor on account of the work performed by the subcontractors, to the extent of each of the amount due on a progress payment from the prime contractor or subcontractor to a subcontractor, the prime contractor or subcontractor may withhold no more than 150 percent of the disputed amount. Any violation of this requirement shall constitute a cause for disciplinary action and shall subject the licensee to a penalty, payable to the subcontractor, of 2 percent of the amount due per month for every month that payment is not made.
In any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to separate from, and in addition to, all other remedies, either civil, administrative, or criminal. This clause applies to both DBE and non-DBE subcontractors.
Item 3A - Page 40
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 subcontractor's interest therein. In the event that there is a good faith dispute over all or any portion his or her attorney's fees and costs. The sanctions authorized under this requirement shall be
SPECIAL PROVISIONS - SECTION 1 - PAGE 8
ADD 1-6.4.4. Prompt Payment of Withheld Funds to Subcontractors.
The City shall hold retainage from the prime contractor and shall make prompt and regular incremental acceptances of portions, as determined by the Agency of the contract work and pay retainage to the prime contractor based on these acceptances. The prime contractor or subcontractor shall return all monies withheld in retention from all subcontractors within seven (7) days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the Agency. Any delay or postponement of payment may take provisions shall subject the violating prime contractor or subcontractor to the penalties, sanctions, and other remedies specified in Section 7108.5 of the California Business and Professions Code and Section 10262 of the California Public Contract Code. This requirement shall not be construed to limit or impair any contractual, administrative or judicial remedies otherwise available to the contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the contractor; deficient subcontractor performance and/or noncompliance by a subcontractor. This clause applies to both DBE and non-DBE subcontractors.
Any violation of these provisions shall subject the violating prime contractor or subcontractor to the penalties, sanctions and other remedies specified therein. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to the prime contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the prime contractor, deficient subcontract performance, or noncompliance by a subcontractor.
ADD: 1-6.5 BID RIGGING.
The U.S. Department of Transportation (DOT) provides a toll-free hotline to report bid rigging activities. Use the hotline to report bid rigging, bidder collusion, and other fraudulent activities. The hotline number is (800) 424-9071. The service is available 24 hours 7 days a week and is confidential and anonymous. The hotline is part of the DOT's effort to identify and investigate highway construction contract fraud and abuse and is operated under the direction of the DOT Inspector General.
1-7.1 GENERAL. ADD the following:
The contract shall be executed by the successful bidder and shall be returned, together with the contract bonds, to the City so that it is received within the time prescribed in the Instructions to Bidders. Failure to do so shall be just cause for forfeiture of the proposal guaranty. The executed contract documents shall be delivered to the following address:
City of Palm Springs
Engineering Services Department
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
ADD 1-7.1.1 STANDARD CONTRACT PROVISIONS.
1-
Item 3A - Page 41
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 place only for good cause and with the Agency's prior written approval. Any violation of these
7.1.1a Successor's Obligations.
SPECIAL PROVISIONS - SECTION 1 - PAGE 9
All grants, covenants, provisions and claims, rights, powers, privileges and abilities contained in the Contract Documents shall be read and held as made by and with, and granted to and imposed upon, you, the City, and your and the respective heirs, executors, administrators, successors, and assigns.
1-7.1.1b Waiver of Legal Rights.
ARTICLE 1: The failure to insist, in any one or more instances, upon the performance of any provision of the Contract, or to exercise any right therein, shall not be construed as a waiver or relinquishment of such provisions or rights.
ARTICLE 2: Any waiver of any breach of the Contract shall not be held to be a waiver of any other or subsequent breach.
ARTICLE 3: Any waiver the City issues to any provision of the Contract shall only be effective if it is agreed upon in writing by the City and if it is specific to the particular matter concerned.
1-7.1.1c Requests for Information (RFI).
Questions regarding how to construct the Work shall be submitted in writing to the City as a Request for Information (RFI).
1-7.1.1d Assignment to Awarding Body.
In accordance with §7103.5(b) of the California Public Contract Code, Contractor and its Subcontractors shall conform to the following requirements:
ARTICLE 1 In entering into a public works contract or a Subcontract to supply goods, services, or materials pursuant to a public works contract, Contractor or its Subcontractor offer and agree to assign to the City all rights, title, and interest in and to all causes of action it may have under §4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with §16700) of Part 2 of Division 7 of the Business and Professions Code) arising from purchases of goods, services, or materials pursuant to the public works contract or the Subcontract.
ARTICLE 2 This assignment shall be made and become effective at the time the City tenders to Contractor, without further acknowledgment by the Parties.
1-7.2 CONTRACT BONDS. Fourth paragraph, DELETE last sentence and SUBSTITUTE the following:
As
performance in the repair or replacement of defective materials or defective workmanship in the Work, for a period of one (1) year from date of acceptance of Work by the City.
Item 3A - Page 42
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 City's
City's
a condition of the City's acceptance of the Work, the Performance Bond shall be replaced with a "Warranty Bond" in the amount of 25 percent of the final Contract Price to guaranty faithful
SPECIAL PROVISIONS - SECTION 1 - PAGE 10
Sixth paragraph, DELETE and SUBSTITUTE the following:
If the Surety on any bond furnished by the Contractor is declared bankrupt, becomes insolvent, or its right to do business is terminated in any state where any part of the Project is located, the Contractor shall immediately notify the Engineer and immediately substitute another bond and surety acceptable to the City.
- END OF SECTION -
Item 3A - Page 43
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4
SPECIAL PROVISIONS - SECTION 2 - PAGE 1
SECTION 2 -- SCOPE OF THE WORK
2-1 WORK TO BE DONE. ADD the following:
The City assumes no responsibility for any conclusions or interpretations made by the Contractor based on any information made available by the City. Nor does the City assume responsibility for Award of this contract concerning conditions which could affect the Work, unless that understanding or representation is expressly stated in the Contract Documents.
Where approval or acceptance by the City is required, it is understood to be general approval only and does not relieve the Contractor of responsibility for complying with all applicable laws, codes, and best practices.
ADD: 2-1.1 SITE EXAMINATION. The Contractor shall have the sole responsibility of satisfying itself concerning the nature and location of the Work, and the general and local conditions, such as, but not limited to, all other matters which could in any way affect the Work or the costs thereof. The failure of the Contractor to acquaint itself with all available information regarding any applicable existing or future conditions shall not relieve it from the responsibility for properly estimating the difficulties, responsibilities, or costs of successfully performing the Work according to the Contract Documents.
2-2 PERMITS. DELETE in its entirety and SUBSTITUTE with the following:
2-2 PERMITS, FEES, AND NOTICES.
Contractor shall obtain and pay for all business taxes, permits, and fees required for constructing the Project and licenses and inspections necessary for the proper execution and completion of the Work, unless specified otherwise in the Contract Documents.
To the extent that there is a change in the type or cost of any of such permits, fees, licenses, or inspection occurring after Award of Contract, there shall be an equitable adjustment in the Contract Price on account of such change under the Extra Work provisions.
Contractor shall comply with and give notices required by applicable laws. Contractor is not entitled to damages or additional payment for delays attributable to the acquisition of permits.
Contractor shall pay the City for regulatory fees, fines, or penalties imposed on the City arising from your failure to complete the Work in accordance with the Contract Documents.
ADD: 2-2.1 Building Permits.
prior approval obtained for the Plans will not in any way waive this requirement.
The Contractor shall be required to request inspections in accordance with the building codes in effect on the permitted plans and by the BO. These inspections will be coordinated at all times through the Engineer. Any work performed without the benefit of the required permit and subsequent Item 3A - Page 44
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 any understanding reached or representation made by any of the City's officers or agents before The Contractor shall obtain the required building permits from the City's Building Official (BO). Any
SPECIAL PROVISIONS - SECTION 2 - PAGE 2
inspection shall be removed and replaced at the discretion of the Inspector at no additional cost to the City.
The payment for applying for and obtaining the required building permit shall be included in the various Bid items unless a Bid item has been provided.
ADD: 2-2.2 Business License. The Contractor and all of its subcontractors shall possess a current City business license issued by the City prior to commencement of the Work, in accordance with shall obtain a Business
License from the City of Palm Springs prior to commencement of work. The Business License can be obtained from the City of Palm Springs, Business License Division, (760) 323-8289.
ADD: 2-2.4 Traffic Control Permit. The Work shall not begin in the public roadway without the approved traffic control encroachment permit. The traffic control plans, including any as part of the Plans or developed by the Contractor, are not valid until Work dates are approved and a traffic control encroachment permit is issued by the City.
The Contractor shall coordinate the traffic control permit application submittal with the Work so that no items of Work will be delayed. To obtain a traffic control permit, the Contractor shall call the Engineer for an appointment a minimum of 2 Working Days prior to starting Work (5 Working Days when the Work will affect a traffic signal). The Contractor shall provide 2 copies of the traffic control drawings as provided in the Contract Documents or prepared by the Contractor at the time of the
ADD: 2-2.5 Riverside County Flood Control (RCFC) Permit. When applicable and available, a copy of the draft RCFC permit is included in the Appendix. The City has applied for the permit and the Contractor shall be responsible for pulling the permit prior to construction and supplying any construction method information to do so to RCFC. The Contractor shall be responsible for paying permit fees prior to construction, complying with all terms of the permit, and arranging and paying for inspection as required by RCFC.
The Allowance Bid item for RCFC Encroachment Permit includes all RCFC permit fees, RCFC hourly inspection costs, and all costs to obtain the subject permit. If Bid Item is not provided payment shall be included in the various items of Work.
ADD: 2-2.6 Construction Activity Permit, California Division of Occupational Safety and Health (DOSH) For projects that require excavations greater than 5 feet in depth, the Contractor shall be required to obtain a Construction Activity Permit from the California Department of Industrial Relations, Division of Occupational Safety and Health, for excavation of trenches required for the project. A copy of the Permit shall be provided to the Engineer at the Pre-Construction Conference.
2-3 RIGHT-OF-WAY. After first sentence, ADD the following:
The Contractor shall be responsible for coordinating with property owners as to timing, when access is provided through rights of entry, and shall protect private improvements in accordance with 2-3.1,
ADD: 2-3.1 PROTECTION
Item 3A - Page 45
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 Title 3, Division II "Business Tax'' of the City's Municipal Code. The Contractor appointment. Upon approval of the Contractor's plans, the Engineer will issue the permit. "PROTECTION II
SPECIAL PROVISIONS - SECTION 2 - PAGE 3
1. your expense.
2. Contractor is responsible for coordinating with property owners for access to be provided to work on the private property.
3. Loop detectors must be replaced within 3 Working Days of completion of work that originally affected the original loop detectors.
4. In any emergency affecting the safety of persons or property, Contractor must act, at its discretion, to prevent threatened damage, injury or loss. Any change in Contract Price or Contract Time resulting from emergency work will be determined as provided in SECTION 7
ADD: 2-3.2 Video Recording Of Pre-existing Conditions. The Contractor shall make its own arrangements for video recording all pre-existing conditions of the Site prior to any construction.
Video recording of important aspects of a construction Site shall include, but is not limited to the following:
a) Property lines
b) Right-of-way and easement conditions
c) Utility markings
d) Survey conditions.
e) Pavement conditions.
f) Adjacent property conditions.
g) Sidewalk, median, curb, and gutter conditions.
h) Safety conditions.
i) Unusual conditions or equipment.
j) Existing canyon conditions (including vegetation) along the pipe corridor; k) Striping
The Contractor shall turn over video discs to the City immediately after recording is done in the presence of the Engineer. Disc(s) shall be submitted no later than 30 days from NTP. The Contractor shall not be entitled to any additional Working Days due to delay securing videotaping services.
Unless proven otherwise via the pre-existing video records, the Contractor shall be responsible for the repair of any damage for which a Claim has been submitted.
2-3.2.1 Payment. Payment for video recording services shall be included in the various Bid items.
ADD: 2-3.3 Placements and Removal of Markouts. Markouts shall not be placed in the public right-of-way more than 30 days prior to the commencement of excavation work perform in connection with an installation.
Markouts shall be removed from all surfaces in the public right-of-way, including decorative surfaces, within 30 days of the completion of the excavation work, if the work is completed.
Item 3A - Page 46
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 The City reserves the right to repair damages to the City's facilities caused by your operations at "MEASUREMENT AND PAYMENT"
SPECIAL PROVISIONS - SECTION 2 - PAGE 4
ADD: 2-3.4 Existing Pavement Markers and Striping. The Contractor shall record the location and conditions of the existing pavement markers and striping prior to construction and submit to the or damaged during construction shall be replaced in kind or as noted on the Drawings at the
ADD: 2-5.5 FLOW AND ACCEPTANCE OF WATER. Storm, surface, nuisance, or other waters may be encountered at various times during construction of the Work. Therefore, the Contractor, by submitting a Bid, hereby acknowledges that it has investigated the risk arising from such waters, and, has prepared its Bid accordingly; and the Contractor, by submitting such a Bid, assumes all said risk.
2-6 CHANGES REQUESTED BY THE CONTRACTOR. ADD the following:
Any plan or method of Work suggested to Contractor by the City, but not specified or required by the Contract or Change Order, which is adopted or followed by Contractor in whole or in part shall be risk and responsibility.
The Contract Price is not subject to adjustment for any type of tax increases after the Award.
2-7 CHANGES INITIATED BY THE AGENCY.
2-7.1 General: DELETE the first paragraph in its entirety and SUBSTITUTE with the following:
Without invalidating the Contract and without notice to any surety, the City may at any time order additions, deletions, or revisions in the Project in the following manner:
a) When the City desires a change; the City will issue a request for proposal to the Contractor.
b) The Contractor shall submit a response within 7 Working Days.
c)
Change Order prepared and issued by the City.
d) Upon receipt of any such Change Order, the Contractor shall promptly sign and return the Change Order to the City and only thereafter proceed under the applicable conditions of the Contract Documents when the City has approved the Change Order.
Should any single bid item of Work be deleted, the reduction in Total Contract Price shall reflect a credit for the full value of the deleted Work, including anticipated profit and overhead. If the credit for the deleted bid item of Work exceeds 25% of the Total Contract Price, the Contractor may reduce the credited amount for the deleted bid item of Work by a maximum of 5% of the amount in excess of the 25% of the Total Contract Price to cover overhead expenses.
If the City requests the Contractor to submit a Change Proposal, and the preparation of such Change Proposal impacts the Contract Time (e.g., other Work is suspended pending a decision on such Change Proposal or the Design Work is delayed due to the preparation of the Change Proposal) an equitable adjustment in the Contract Time shall be made.
Item 3A - Page 47
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 Engineer in accordance with 3.8, "Submittals." Permanent pavement markers and striping removed Contractor's expense.
done at Contractor's sole
After the City reviews the Contractor's response, the City changes will be authorized by a written
SPECIAL PROVISIONS - SECTION 2 - PAGE 5
2-8 EXTRA WORK.
ADD: 2-8.1 General. ADD the following:
The City reserves the right to direct the Contractor to solicit competitive Bids for Extra Work. If required by the City, the Contractor shall obtain competitive Bids from Subcontractors acceptable to Contractor and shall deliver such Bids to the City who will then determine which Bids will be accepted.
Any request by the Contractor to change the Contract Price to include the price of Extra Work shall estimates shall detail all applicable elements of price e.g., labor and payroll costs, quantities, crew composition, production rates, material costs, Subcontractor and Supplier costs, equipment costs, the Contract Price arises from changes
in the Schedule affecting all or part of the Project, or if the Contractor seeks a change in the Contract -
SCHEDULE AND COMMENCEM
2-9 Changed Conditions. ADD the following:
ADD: 2-9.1 Differing Site Conditions.
During the progress of the work, if subsurface or latent physical conditions are encountered at the site differing materially from those indicated in the contract or if unknown physical conditions of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in the work provided for in the contract, are encountered at the site, the party discovering such conditions shall promptly notify the other party in writing of the specific differing conditions before the site is disturbed and before the affected work is performed.
Upon written notification, the engineer will investigate the conditions, and if it is determined that the conditions materially differ and cause an increase or decrease in the cost or time required for the performance of any work under the contract, an adjustment, excluding anticipated profits, will be made and the contract modified in writing accordingly. The engineer will notify the contractor of the determination whether or not an adjustment of the contract is warranted.
No contract adjustment which results in a benefit to the contractor will be allowed unless the contractor has provided the required written notice.
No contract adjustment will be allowed under this clause for any effects caused on unchanged work.
ADD: 2-9.2 Suspension of Work by the Engineer.
If the performance of all or any portion of the work is suspended or delayed by the engineer in writing for an unreasonable period of time (not originally anticipated, customary, or inherent to the construction industry) and the contractor believes that additional compensation and/or contract time is due as a result of such suspension or delay, the contractor shall submit to the engineer in writing a request for adjustment within 7 calendar days of receipt of the notice to resume work. The request shall set forth the reasons and support for such adjustment.
Item 3A - Page 48
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 be by written notice to the City and shall include itemized estimates. The Contractor's itemized and supplemental costs. If the Contractor's request to change Time, the Contractor's request shall include the analysis required by 6 1, "CONSTRUCTION ENT OF THE WORK."
SPECIAL PROVISIONS - SECTION 2 - PAGE 6
Upon receipt, the engineer will evaluate the contractor's request. If the engineer agrees that the cost and/or time required for the performance of the contract has increased as a result of such suspension and the suspension was caused by conditions beyond the control of and not the fault of the contractor, its suppliers, or subcontractors at any approved tier, and not caused by weather, the engineer will make an adjustment (excluding profit) and modify the contract in writing accordingly.
The contractor will be notified of the engineer's determination whether or not an adjustment of the contract is warranted.
No contract adjustment will be allowed unless the contractor has submitted the request for adjustment within the time prescribed.
No contract adjustment will be allowed under this clause to the extent that performance would have been suspended or delayed by any other cause, or for which an adjustment is provided or excluded under any other term or condition of this contract.
ADD: 2-9.3 Significant Changes in the Character of Work.
Subject to the provisions in Section 2-7 CHANGES INITIATED BY THE AGENCY, the engineer reserves the right to make, in writing, at any time during the work, such changes in quantities and such alterations in the work as are necessary to satisfactorily complete the project. Such changes in quantities and alterations shall not invalidate the contract nor release the surety, and the contractor agrees to perform the work as altered.
If the alterations or changes in quantities significantly change the character of the work under the contract, whether such alterations or changes are in themselves significant changes to the character of the work or by affecting other work cause such other work to become significantly different in character, an adjustment, excluding anticipated profit, will be made to the contract. The basis for the adjustment shall be agreed upon prior to the performance of the work. If a basis cannot be agreed upon, then an adjustment will be made either for or against the contractor in such amount as the engineer may determine to be fair and equitable.
If the alterations or changes in quantities do not significantly change the character of the work to be performed under the contract, the altered work will be paid for as provided in the Special Provisions.
When the character of the work as altered differs materially in kind or nature from that involved or included in the original proposed construction; or When a major item of work, as defined elsewhere in the contract, is increased in excess of 125 percent or decreased below 75 percent of the original contract quantity. Any allowance for an increase in quantity shall apply only to that portion in excess of 125 percent of original contract item quantity, or in case of a decrease below 75 percent, to the actual amount of work performed.
ADD: 2-10.1 Deficiency in Work of Separate Contractors. depends on proper execution or results upon construction or operations by the City or a Separate Contractor, the Contractor shall, prior to proceeding with that portion of the Work, promptly report to the Separate Contractor and the City apparent discrepancies or defects in such other construction that would render it unsuitable for proper execution and results by the Contractor. The Contractor Item 3A - Page 49
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 The term "significant change" shall be construed to apply only to the following circumstances:
If part of the Contractor's Work
SPECIAL PROVISIONS - SECTION 2 - PAGE 7
and the Separate Contractor shall use good faith efforts to resolve any such discrepancies or defects or any disagreements relating thereto. Failure of the Contractor to report shall constitute acceptance by the Contractor of the work of Separate Contractors as fit, proper, and coordinated with the
ADD: 2-11 CLAIMS. A Claim is a written demand by the Contractor that seeks an adjustment in the Contract Price, Contract Time, or other relief associated with a dispute arising under or relating to the Contract, including a breach of any provision thereof. A voucher, invoice, or other routine request for payment is not a Claim.
A Claim shall conform to these specifications and may be considered after the City has previously denied a request by Contractor for a Change Order seeking the demanded relief.
Contractor shall submit a Claim to the Engineer if a dispute occurs that arises from or relates to the Contract. The Claim shall seek all relief to which Contractor asserts it is entitled as a result of the specifications shall constitute a waiver of all relief associated with the dispute. Claims are subject to 6- RIGHT TO AUDIT
Contractor shall continue to perform the Services and Work and shall maintain the Schedule during any dispute proceedings. The Engineer will continue to make payments for undisputed Services and Work.
present claims prior to any action under the California Government Code.
2-11.1 Initiation of Claim. The Contractor shall promptly, but in no event later than 30 days after the event(s) giving rise to the Claim, deliver the Claim to the City. The Contractor shall not process a Claim unless the City has previously denied a request by the Contractor for a Change Order that sought the relief to be pursued in the Claim.
2-11.2 Claim Certification Submittal. If the Claim seeks an increase in the Contract Price, the Contract Time, or both, the Contractor shall submit with the Claim an affidavit certifying that:
a) The Claim is made in good faith and covers all costs and delays to which the Contractor is entitled as a result of the event(s) giving rise to the Claim;
b) The amount claimed accurately reflects the adjustments in the Contract Price, the Contract Time, or both to which the Contractor believes it is entitled; and c) All supporting costs and pricing data are current, accurate, complete, and represent the best of
The Contractor shall ensure that the affidavit is executed by an official who has the authority to legally bind Contractor.
2-11.3 Initial Determination. -approval of a
Claim from the Contractor. Within 30 days of receipt of a Claim, the City will deliver an Initial Determination to the Contractor. The City will not consider and will return to the Contractor any written demand that does not conform to the requirements of this Section 2-11.
Item 3A - Page 50
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 Contractor's Work.
event(s) giving rise to the dispute. Contractor's failure to process a Claim in accordance with these 10, II "
The City's Claims process specified herein shall not relieve Contractor of its statutory obligations to the Contractor's knowledge and belief.
Initial Determination is the City's written approval or non
SPECIAL PROVISIONS - SECTION 2 - PAGE 8
2-11.4 Settlement Meeting. If the Contractor disagrees with the Initial Determination, the Contractor to the City within 30 days of the date of the Initial Determination. Within 15 Working Days of receipt Construction Manager. This meeting will be an opportunity for the Contractor to explain its claim to senior management of the City. If a settlement agreement cannot be reached, the Construction Manager and the City will proceed to make a joint written determination.
2- . The City will make a written determination within 10 Working Days after the settlement meeting. The written determination shall be final and binding on the Contractor unless the Contractor notifies the City and the Construction Manager in writing of its -
objection within said 15 Working Days period shall be deemed to be a waiver of its right to pursue the claim.
2-11.6 Mandatory Assistance. If a third party dispute or litigation, or both, arises out of, or relates tractor shall
limited to, providing professional consultations, attending mediations, arbitrations, depositions, trials or any event related to the dispute resolution, litigation, or both.
2-11.7 Attorney Fees Related To Mandatory Assistance. In providing the City with dispute or litigation assistance, the Contractor and or Subcontractors or their agents, officers, and employees shall pay all incurred expenses and costs. The Contractor and or any of its Subcontractors shall agree that any attorney fees incurred are not reimbursable.
2-11.8 Costs Relating To Weather Damage. The Contractor shall have no claims against the City for damages for any injury to Work, resulting from the action of the elements or weather. If, however, in the opinion of the Construction Manager, the Contractor has made all reasonable efforts to protect the Work, the Contractor may be granted a reasonable extension of Contract Time to make proper
ADD: 2-12 DISPUTE RESOLUTION PROCESS.
2-12.1 Mandatory Non-binding Mediation.
If a dispute arises out of or relates to the Contract, or the breach thereof, and if said dispute cannot be settled through contract provisions provided for claim settlement or negotiations, the parties agree to first endeavor to settle the dispute in an amicable manner, using mandatory mediation under the Construction Industry Mediation Rules of the American Arbitration Association before having recourse in a court of law.
To initiate mediation, the initiating party shall serve a Request for Mediation at the American Arbitration Association (AAA).
2-12.2 Mandatory Mediation Costs.
Item 3A - Page 51
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 shall request a Settlement Meeting. The Contractor's request shall be in writing and shall be delivered of the Contractor's request for a "Settlement Meeting", the Construction Manager will schedule a "Settlement Meeting" between the Contractor's representative, the City's representative, and the
11.5 City's Final Determination
objection within 15 Working Days after receipt of the written determination, and files a "Request for Dispute Resolution" in accordance with 2 12, "Dispute Resolution Process." Failure to give notice of in any way to the Services provided under this contract, upon the City's request, the Con assist in resolving the dispute or litigation. The Contractor's required assistance includes, but is not repairs, renewals, and replacements of Work in accordance with Section 6, "PROSECUTION AND PROGRESS OF THE WORK."
SPECIAL PROVISIONS - SECTION 2 - PAGE 9
The expenses of witnesses for either side shall be paid by the party producing such witnesses. All other expenses of the mediation, including required traveling and other expenses of the mediator and the cost of any proofs or expert advice produced at the direct request of the mediator, shall be borne equally by the parties, unless they agree otherwise.
2-12.3 Selection of Mediator.
A single mediator, knowledgeable in construction aspects and acceptable to both parties, shall be used to mediate the dispute.
with the appropriate fees, a copy of requested mediators marked in preference order, and a preference for available dates.
If AAA is selected to coordinate the mediation (Administrator), within 10 Working Days from the
ARTICLE 1 - A copy of the list of the preferred mediators listed in preference order after striking any mediators to which they have any objection.
ARTICLE 2 - A preference for available dates.
ARTICLE 3 - Appropriate fees.
If the parties cannot agree on a mediator, then each party shall select a mediator and those mediators shall select the neutral third party to mediate the matter.
2-12.4 Conduct of Mediation Sessions.
Mediation hearings shall be conducted in an informal manner and discovery shall not be allowed.
Discussions, statements, and/or admissions shall be confidential to the proceedings and shall not be exchange any information they deem necessary.
Both parties shall have an authorized representative attend the mediation. Each representative shall have the authority to recommend entering into a settlement. Either party may have attorney(s), witnesses, or expert(s) present. Either party may request a list of witnesses and notifications of whether attorney(s) shall be present.
Any resulting agreements from mediation shall be documented in writing. Mediation results and -
proceeding, unless such admission is otherwise agreed upon in writing by both parties. Mediators shall not be subject to any subpoena or liability and their actions shall not be subject to discovery.
ADD: 2-13 FORUM FOR LITIGATION.
It is the express intention that all legal actions and proceedings related to the Contract or Agreement with the City or to any rights or any relationship between the parties arising therefrom shall be solely and exclusively initiated and maintained in courts of the State of California for Riverside County.
Item 3A - Page 52
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 If AAA is used, the initiating party shall concurrently file with AAA a "Request for Mediation" along receipt of the initiating party's Request for Mediation, the opposing party shall file the following:
used for any other purpose as it relates to the party's legal position. The parties may agree to documentation, by themselves, shall be "non binding" and inadmissible for any purpose in any legal
SPECIAL PROVISIONS - SECTION 2 - PAGE 10
ADD: 2-14 PRE-JUDGMENT INTEREST.
The parties stipulate that if a judgment is entered against a party for breaching this Contract, the pre- judgment interest shall be two percent (2%) per annum.
ADD: 2-15 WAIVER OF CLAIMS. The acceptance by the Contractor of the Final Payment of undisputed Contract amounts shall release the City, the Engineer, and the Design Consultant as agent of the City, from all claims and all liability to the Contractor for all things done or furnished in connection with the Work, and every act of the City and others relating to or arising out of the Work and related to those undisputed amounts. No payment, however, final or otherwise, shall operate to release the Contractor and the Surety from obligations under this contract and the Performance Bond, Payment Bond, and other bonds and warranties as herein provided.
- END OF SECTION -
Item 3A - Page 53
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SPECIAL PROVISIONS - SECTION 3 - PAGE 1
SECTION 3 CONTROL OF THE WORK
3-3 SUBCONTRACTORS. ADD the following:
The Contractor shall incorporate these Specifications in its subcontracts for the Work being performed by its Subcontractor(s).
The Contractor shall obtain or require that each Subcontractor obtains insurance policies in accordance with 5- shall be kept in full force and effect for the duration of the Contract and in any attached supplemental agreements.
In any dispute between the Contractor and the Subcontractor, the City shall not be made a party to any judicial or administrative proceeding to resolve the dispute. The Contractor agrees to defend and indemnify the City in accordance with 5-
made a party to any judicial or administrative proceeding to resolve the dispute in violation of this provision.
For federally funded projects, the Contractor shall physically include in each subcontract, lower tier subcontract and all purchase orders, the required contract provisions contained in Federal Form 1273. The Federal Form 1273 provisions must not be modified in any way. The provisions may ilure of the Contractor to comply with this requirement is by the Federal Highway Administration (FHWA).
The prime contractor is responsible for compliance with the Federal Form 1273 requirements by all subcontractors and lower tier subcontractors. Failure of the prime contractor to comply with this of the contractor by the FHWA.
For federally funded projects, the Contractor, sub-recipient or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. The Contractor shall carry out applicable requirements of Title 49 CFR (Code of Federal Regulations), Part 26 in the award and administration of US DOT-assisted contracts. Failure by the Contractor to carry out these requirements is a material breach of this contract, which may result in the termination of this contract or such other remedy, as the City deems appropriate. Each subcontract signed by the bidder must include this assurance.
Contractor shall ensure that its Subcontractors are appropriately licensed for the duration of the Work that is performed under the subcontracts in accordance with 2- event the Subcontractor is not properly licensed, Contractor shall cease payment to the Subcontractor for all Work performed when the Subcontractor was not properly licensed. Contractor shall return to the City any payment it made to a Subcontractor for Work performed when the Subcontractor was not licensed.
Item 3A - Page 54
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 4, "INSURANCE" which
8, "INDEMNIFICATION AND HOLD HARMLESS
AGREEMENT" in any dispute between the Contractor and the Subcontractor should the City be not be incorporated by reference. The Federal Form 1273 is included as Exhibit "E" to the Contractor's contract with the City. Fa
grounds for the City's termination of the contract with the Contractor and debarment of the Contractor requirement is grounds for the City's termination of the contract with the contractor and debarment 1, "WORK TO BE DONE". In the
SPECIAL PROVISIONS - SECTION 3 - PAGE 2
Where the Contract Documents require that a particular product be installed or applied by an applicator approved by the manufacturer, ensure the Subcontractor or Supplier employed for such Work is approved by the manufacturer.
ADD: 3-3.1 Prompt Payment of Funds Withheld to Subcontractors.
The City may hold retainage from the prime contractor and shall make prompt and regular incremental acceptances of portions, as determined by the City, of the contract work, and pay retainage to the prime contractor based on these acceptances. The prime contractor, or subcontractor, shall return all monies withheld in retention from a subcontractor within seven (7) days after receiving payment for work satisfactorily completed and accepted including incremental acceptances of portions of the contract work by the City, unless as agreed to in writing by the prime contractor and subcontractor, pursuant to Section 7108.5 of the Business and Professions Code.
Any violation of this provision shall subject the violating prime contractor or subcontractor to the penalties, sanctions and other remedies specified in Section this code. These requirements shall not be construed to limit or impair any contractual, administrative, or judicial remedies otherwise available to the prime contractor or subcontractor in the event of a dispute involving late payment or nonpayment by the prime contractor, deficient subcontract performance, or noncompliance by a subcontractor.
ADD: 3-3.2 Federal Lobbying Restrictions
Section 1352, Title 31, United States Code prohibits Federal funds from being expended by the City (as the recipient of Federal funds) or any lower-tier sub-recipient of a Federal-aid contract to pay for any person for influencing or attempting to influence a Federal agency or Congress in connection with the awarding of any Federal-aid contract, the making of any Federal grant or loan, or the entering into of any cooperative agreement.
If any funds other than Federal funds have been paid for the same purposes in connection with this Federal-aid contract, the recipient shall submit an executed certification and, if required, submit a completed disclosure form as part of the bid documents.
A certification for Federal-aid contracts regarding payment of funds to lobby Congress or a Federal agency is included in the Bid Forms. Standard Form -
instructions for completion of the Standard Form is also included in the Bid Forms. Signing the Bid Proposal shall constitute signature of the Certification.
The above referenced certification and disclosure of lobbying activities shall be included in each subcontract and any lower-tier contracts exceeding $100,000. All disclosure forms, but not certifications, shall be forwarded from tier to tier until received by the Engineer.
The Contractor, subcontractors and any lower-tier contractors shall file a disclosure form at the end of each calendar quarter in which there occurs any event that requires disclosure or that materially affects the accuracy of the information contained in any disclosure form previously filed by the Contractor, subcontractors and any lower-tier contractors. An event that materially affects the accuracy of the information reported includes:
Item 3A - Page 55
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 LLL, "Disclosure of Lobbying Activities," with
SPECIAL PROVISIONS - SECTION 3 - PAGE 3
(1) A cumulative increase if $25,000 or more in the amount paid or expected to be paid for influencing or attempting to influence a covered federal action; or
(2) A change in the person(s) or individual(s) influencing or attempting to influence a covered federal action; or
(3) A change in the officer(s), employees(s), or member(s) contacted to influence or attempt to influence a covered Federal Action.
3-5 INSPECTION. ADD the following:
If required by the Engineer, the Contractor shall provide information related to the inspection of the Work. The Contractor shall provide access in accordance with Cal-OSHA Standards where necessary.
The Contractor shall request inspections in accordance with the prevailing Codes and by the Engineering Services Department. The Contractor shall coordinate these inspections at all times through the Engineer. The Contractor shall remove and replace any items of Work performed without the benefit of inspection as may be required by any associated building permits. Special Note: The Contractor is advised that any structural construction is subject to a separate building permit, separate building permit and scheduling required inspect for construction of structural elements of the Work.
For required subsequent inspection, the Contractor shall remove and replace Work at the discretion of the Engineer at no additional cost to the City. Inspection of the Work shall not relieve the Contractor of the obligation to fulfill all conditions of the Contract.
-site inspection. Notices shall not be deemed
Special Note: The City may either perform inspection services with its own forces or contract with third parties. The Contractor shall call for, coordinate, and schedule all inspections. Inspections shall be provided to the Contractor, upon advance notice, during normal working hours (7:00 AM to 4:00 PM), on contract working days. In the event the Contractor requests inspections outside of normal working hours, or requests additional inspections on non-working days, such inspection requests ubject to the Contractor paying
for costs incurred for performing such inspections, which shall be at the agreed price of $225 per hour, which shall be credited to City on subsequent progress payments processed for payment to the Contractor.
The City will make any inspections and tests as the City deems necessary to ensure the Work is accomplished in accordance with the requirements of the Contract Documents, other than inspections for Work performed in accordance with a permit. The Contractor shall be responsible for coordinating required inspection of all Work performed in accordance with a permit. Unless otherwise specified, the City will provide all required inspections and tests. In the event inspections or tests reveal non-compliance with the requirements of the Construction Documents, the Contractor Item 3A - Page 56
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 and inspection by the City's Building Official. The Contractor is responsible for obtaining a ions by the City's Building Official
The Contractor shall give at least 5 days' notice for off effective until the City has responded and agreed to the Contractor's date and time. may be granted upon advance notice with the Engineer's approval, s
SPECIAL PROVISIONS - SECTION 3 - PAGE 4
shall bear the cost of any and all corrective measures deemed necessary by the City, as well as the -inspection and re-testing.
The City has the right, for a reasonable time, to stop or suspend Work which will cover, and thereby Work. The Contractor shall have no right to additional costs or time that it may incur as a result of the Work stoppage or suspension.
The Work shall not be covered prior to inspection, testing, or approval required by the Contract to obtaining the required approvals, the Contractor shall, when requested by the City, uncover the Work for inspection, testing, approval, or all. Upon successful completion of the inspection, testing, or approval, the Contractor shall cover the Work where required again. The Contractor shall bear all direct and indirect costs and damages of such uncovering and re-covering and shall not be entitled to an increase in the Contract Price or the Contract Time, unless the Contractor has given the City and any other affected
the City has not acted with in response to such notice.
Tests, inspections, and approvals of items of the Work required by the Contract Documents, Applicable Laws or normal construction practices shall be made at an appropriate time, and in accordance with the Contract Documents. Unless otherwise specified, the City will make arrangements for such tests, inspections and approvals. The Contractor shall give the City notice of when and where tests and inspections are to be made so that the City may observe such procedures.
Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be secured by the Contractor and delivered to the City.
3-
ADD the following:
During periods when the Work is suspended, the Contractor shall make appropriate arrangements for any emergency work which may be required to be performed under the supervision of the
The Contractor shall provide the Engineer with a local phone number at which they or their representative may be contacted 24 hours a day.
ADD: 3-6.1 Project Meetings.
Manager, shall attend all scheduled construction progress meetings and other Project meetings as -needed basis
to address design issues. Construction progress meetings may be weekly, bi-weekly, or monthly as required by the Engineer. Other Project meetings will be scheduled at the sole discretion of the Engineer.
The Engineer will determine the date(s), time(s), and location(s) for all meetings. The Engineer will attend, the Contractor shall notify the Engineer a minimum of 24 hours in advance, prior to the start of the scheduled meeting. If the Contractor does not provide the required notification the Contractor Item 3A - Page 57
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 cost of the City's subsequent re
prevent or impede the City's or another agency's ability to inspect, test, or approve a portion of the Documents, the City's prior written request, or by other agencies. If any item of Work is covered prior agencies written notice of the Contractor's intention to cover the Work and 6 THE CONTRACTOR'S REPRESENTATIVE.
The designated Contractor's representative shall not be replaced without written notice to the City.
Contractor's representative.
The Contractor's field supervisor e.g., superintendent and Project required by the Engineer. The City's design staff will attend Project meetings on an as be responsible for the meeting agendas and meeting minutes. If any of the Contractor's staff cannot
SPECIAL PROVISIONS - SECTION 3 - PAGE 5
shall be financially responsible for the costs of the City staff, consultants, or both that attend. The Contractor will be charged a minimum
City employees or representatives that attend the meeting. Lack of participation from the Contractor
The objective of the meetings is to discuss: (1) the status of submittals, (2) requests for information, (3) progress of schedule, (4) disputed items, (5) non-conformance notices, and (6) new business of importance from any member of the meeting.
3-6.1.1 Payment.
in the various Bid items. All costs assessed to the Contractor for not attending the meetings will be deducted from the monthly invoice.
3-7.1 General. DELETE the fourth paragraph and SUBSTITUTE with the following:
If during the performance of the Work, the Contractor finds a conflict, error, omission, or discrepancy ng
of the Work, or if any errors appear in either the various instruments or in the work done by other contractors affecting the Work included in the Specifications, the Contractor shall report it to the Engineer in writing at once and before proceeding with the Work affected thereby. If the Contractor fails to give such notice, the Contractor shall make good any damage or defect in the Work caused thereby.
If the Engineer finds an error or omission has been made, the Engineer will determine the corrective actions and advise the Contractor accordingly. If the corrective work associated with an error or omission increases or decreases the amount of Work called for in the Contract, the City will issue an appropriate Change Order or Field Order (as applicable).
After discovery of a claimed error or omission by the Contractor if the Contractor continues with the Work without written direction from the Engineer, the related work performed by the Contractor shall
The execution of Work specially detailed or explained, without a previous written Claim for an Extra Work charge, shall constitute an acceptance by the Contractor.
It is the intent of the Specifications and Plans to describe a complete Project (or part thereof) to be constructed in accordance with the Contract Documents. Any Work that may reasonably be inferred from the Specifications or Plans as being required to produce the intended result shall be supplied whether or not it is specifically called for, at no additional cost to the City.
When words in the Specifications or on the Plans, which have a well-known technical or trade meaning, are used to describe Work, material, or equipment such words shall be interpreted per such meaning.
Reference to specified software, guides, standard specifications, manuals or codes of any technical society, organization or association, or to the code of any governmental authority, whether such reference be specific or by implication, shall mean the latest edition or version in effect at the time of opening of Bids (or, on the effective date of the Contract if there were no Bids), except as may be Item 3A - Page 58
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 of two hours of the Engineer's time plus the time of other the will be documented and reported in the Contractor's performance evaluation.
The payment for the Contractor's attendance of Project meetings shall be included in the Contract Documents or in the City's field work, which is necessary for a clear understandi be at the Contractor's risk.
SPECIAL PROVISIONS - SECTION 3 - PAGE 6
otherwise specifically stated. No provision of any referenced standard specifications, manual or code (whether or not specifically incorporated by reference in the Contract Documents) shall change the duties and responsibilities of the Engineer or the Contractor or any of their agents or employees from those set forth in the Contract Documents. Clarifications and interpretations of the Contract Documents will be issued by the Engineer within 5 working days of receipt.
Specifications and Plans are divided into groups e.g., engineering disciplines for the convenience of the City. These divisions are not for the purpose of apportioning Work or responsibility for Work among Subcontractors and Suppliers.
3-7.2 Precedence of Contract Documents. DELETE in its entirety and SUBSTITUTE the following:
If there is a conflict between Contract Documents, the document highest in precedence shall control.
The precedence shall be as follows with item (1) being the highest:
1) Permits; from other agencies as may be required by law 2) Change Orders and Supplemental Agreements; whichever occurs last 3) Contract Agreement
4) Addenda
5) Bid/Proposal
6) Supplemental Special Provisions (SSP)
7) Project Plans
8) Standard Drawings
9) Special Provisions
10) Standard Specifications
11) Reference Specifications
The figured dimensions shown on the drawings and in the specifications may not, in every case, agree with scale dimensions. Figured dimensions shall take precedence over scaled dimensions, and large-scaled drawings shall take precedence over small-scale drawings.
With reference to the drawings the order of precedence shall be as follows:
1) Figures govern over scaled dimensions
2) Detail drawings govern over general drawings
3) Addenda and Change Order drawings govern over Plans
4) Plans govern over Standard Drawings
When a conflict exists between the ADA Standards for Accessible Design, Title 24, and the City Supplements, the most restrictive requirement shall be followed.
ADD: 3-7.3 Red-lines and Record Documents.
3-7.3.1 General.
Keep to the satisfaction of the Engineer accurate, legible, and current records on a set of full size Plans of additions and deletions to the Work and of changes in location, elevation, and character of the Work not otherwise shown or noted in the Contract Documents.
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SPECIAL PROVISIONS - SECTION 3 - PAGE 7
Coordinate Red-lines drawings with field measurements, approved Shop Drawings, Working Drawings, samples, product data, and available records. You shall immediately give written notice of any conflicts between these documents to the Engineer.
Keep the Red-lines current with entries checked by the Engineer before the Work is buried or covered. Your failure to update and deliver Red-lines information monthly to the Engineer for review and approval may result in the withholding of monthly progress payments.
Note the source identification, such as RFI numbers and Change Order numbers, as required identifying the source of the change to the Contract Documents.
Deliver the Red-lines to the Engineer upon completion of the construction Work.
3-7.3.2 Asset Specific Red-lines.
Irrigation System Red-lines: Red-lines shall clearly record by dimension from 2 known fixed points and by depth of underground facilities all deviations, modifications, and changes in the Work.
Records, deviations, modifications, and changes on the day the Work is performed shall reflect the actual Work location and shall be marked in red at the scale of the Plan sheet on which they are recorded. Red-lines shall show the equipment locations and associated information for the following:
1. Water Meter - Size, type of water (potable or reclaimed), and water meter address.
2. Electrical Meter, including meter address.
3. Backflow Device - Size, available static pressure in psi, the psi and flow in gallons per minutes for which the irrigation system is designed, and device serial number.
4. Irrigation Controller - Location, number of stations, identifying call-out.
5. Master Control Valve.
6. Flow Sensor.
7. Pressure Regulator Valve.
8. Isolation Valves.
9. Remote Control Valves - Size, irrigation controller, valve station number, and flow demand in gallons per minute.
10. Quick Coupling Valves and Size.
11. Irrigation Mainline and Size.
12. Potable Water Mainline and Size.
13. Irrigation Lateral Line and Size.
14. Irrigation Sleeves and Size.
15. Remote Control Valve Wiring.
16. Communication Cables.
17. Pull Boxes.
18. Rain Shut Off Switch.
19. Electrical lines from electrical meter to irrigation controller, including the power disconnect switch.
20. Irrigation sprinkler heads which have been added or deleted from the approved plans. Changes in manufacturer nozzle size shall be noted on the red-lined drawings including operating pressure, gallons per minute, and radius of throw.
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SPECIAL PROVISIONS - SECTION 3 - PAGE 8
Re-vegetation Red-lines: Within 4 weeks of the end of the Plant Establishment Period, as determined and accepted by the Project Biologist, furnish and submit to the Engineer 1 full scale Red-lines set showing field changes to grade, erosion control, and seeding for the re-vegetated areas.
Utility Red-lines: Utility Red-lines shall show the location of the following:
ARTICLE 1 Blow off valves by stationing and offsets.
ARTICLE 2 Air vacuum valves by stationing and offsets.
ARTICLE 3 Water meter boxes replaced.
ARTICLE 4 Locations of all sewer laterals and cleanouts.
ARTICLE 5 Items abandoned in place following dewatering operation.
Building Red-lines: Building Red-lines shall show the following:
A. Location by dimension and the depth by elevation of underground lines, valves, plugged tees, and capped ends.
B. By dimension or scale plans, wiring, conduits, and pull boxes as installed.
C. Information necessary to maintain and service concealed items of Work.
D. Dimensional changes to the drawings.
E. Revisions to details shown on the drawings.
F. Depths of foundations below the first floor.
G. Locations and depths of underground utilities.
H. Revisions to the routing of piping and conduits.
I. Revisions to electrical circuitry.
J. Actual equipment locations.
K. Duct size and routing.
L. Locations of concealed internal utilities.
M. Changes made by Change Orders.
N. Details not shown on original Plans.
Traffic Signals and Street Lighting: Provide the Engineer with a cable route diagram indicating the actual cable route and meter marks for all intersections, directional change points in the cable routing, and all termination points. Record these points during cable installation. Provide cable system Red- lines showing the accurate cable route to the Engineer. Record information such as the location of slack cable and its quantity in the cable route diagram.
Provide 3 copies of D-Sheet sized Red-lines.
SWPPP: Upon completion of construction, submit the SWPPP and all of its appendices, records, reports, and maps to the Engineer with the Redlines.
Slurry Seal and Asphalt Concrete Reconstruction or Overlay: Clearly record on the forms the City provides in MS Excel format the actual dates and quantity of each Bid item applied to each street segment and comments regarding each segment. Record reasons if no Work is performed.
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SPECIAL PROVISIONS - SECTION 3 - PAGE 9
Fiber Optic and WIFI Device Red-lines:Fiber Optic and WIFI Device Red-lines shall clearly record by dimension from 2 known fixed points and by depth of underground facilities all deviations, modifications, and changes in the Work. Records, deviations, modifications, and changes on the day the Work is performed shall reflect the actual Work location and shall be marked in red at the scale of the Plan sheet on which they are recorded. Red-lines shall show the equipment locations and associated information for the following:
Locations and depths of underground utilities.
Revisions to the routing of piping and conduits.
Actual equipment locations.
Pull Boxes.
Electrical Meter, including meter address.
Items abandoned in place.
3-7.3.3 Payment.
The payment for Red-lines Drawings shall be included in the Contract Price.
ADD: 3-7.4 Measurements and Dimensions.
Scaled dimensions are approximate. Before ordering materials or commencing the Work, measure the Site for proper size and fit. Verify dimensions and quantities by taking measurements in the field.
The Contractor shall be responsible for their accuracy.
3-8.4 Supporting Information. ADD the following:
Submit samples of the materials with cut sheets of the products. Organize cut sheets in a binder for review and approval by the Engineer prior to use on the Project. Identify deviation from any of the specified material clearly, including cut sheets and samples of both the specified material and basis Contractor Name, and Submittal Number and clearly indicate the specific product to be used.
When photos of material are required, they shall be clear in resolution, identify the specific item for review, and shall indicate the name of the item, source, and date taken. The material shown in the photo shall be currently available for use on the Project.
For landscaping and irrigation materials, submit samples and test results to the Engineer within 15 Working Days of the NTP.
3-9 SUBSURFACE DATA. ADD the following:
The Plans for the Work show conditions as are believed by the Engineer to exist, but it is not to be inferred that all of the conditions as shown thereon actually exist, nor shall the City or any of its officers be liable for any loss sustained by the Contractor as a result of any variance between conditions as shown on the Plans and the actual conditions revealed during the progress of the Work or otherwise.
Item 3A - Page 62
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 •
•
•
•
•
•
for the substitution. Include the City's Project Name, Project Number, and the Engineer's name,
SPECIAL PROVISIONS - SECTION 3 - PAGE 10
If reports of explorations and tests of subsurface conditions at the Site are included in the Contract Documents e.g., Supplementary Special Provisions (SSP), the Contractor is encouraged to inspect the Site, acquire, and review these reports and to take other necessary steps to thoroughly familiarize itself with the Site conditions. If a review of the documents and Site inspection indicate a conflict, the Contractor shall immediately notify the City. For access and cost information to obtain those reports contact the City Project Manager, during regular business hours.
The City does not represent that the listed documents, or the logs, and test results, show the conditions that will be encountered in performing the Work. The City represents only that the logs, and test results show the conditions encountered at the particular locations and at the particular times they were obtained. The Bidders and other users of the subsurface data are cautioned that interpretations and conclusions contained in the documents were formulated for design purposes only and were based on work performed in such a way as to expressly provide information required for design.
3-10 SURVEYING. DELETE in its entirety and SUBSTITUTE with the following:
The Contractor shall provide all construction surveying by a California registered Land Surveyor or Registered Civil Engineer appropriately licensed to practice land surveying surveyor shall provide monument tie-out and corner record filing, as required by the Engineer or his representative.
necessary for the proper prosecution and control of the work contracted for under these specifications. No direct payment will be made for this labor, materials, or other expenses therewith.
The Contractor must give weekly copies of all survey notes to the Engineer so that the Engineer may check them as to accuracy and method of staking. All areas that are staked by the Contractor must be checked and approved by the Engineer prior to beginning any work in the area. The Engineer will make periodic checks of the grades and alignment set by the Contractor. In case of error on the part of the Contractor, his/her employees, or surveyor, resulting in establishing grades and/or alignment that are not in accordance with the plans or as established by the Engineer, all construction or staking not in accordance with the established grades and/or alignment shall be replaced without additional cost to the City.
Surveyor, shall be considered as included in the various bid items of work, and no additional compensation shall be allowed therefore.
3-11 CONTRACT INFORMATION SIGNS: DELETE in its entirety and SUBSTITUTE the following:
3-11 PROJECT INFORMATION SIGNS.
3-11.1 General. Work specified in this section includes providing all materials and performing all operations to fabricate, install, modify and/or relocate Project Information Signs, and as specified in these Special Provisions. Submit a shop drawing for all sign panels, the Sign Panels.
Item 3A - Page 63
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 . The Contractor's
The Contractor's surveyor shall set all stakes and hubs, furnish all lines, grades and measurements Payment for any and all construction surveying required by this Project, by the Contractor's and the Manufacturer's data for
SPECIAL PROVISIONS - SECTION 3 - PAGE 11
3-11.2 Materials
a. Project Information Signs shall be constructed per Caltrans specifications for aluminum single sheet and laminated panel signs. These specifications may be obtained from Caltrans Office of Business Management, Material Operations Branch, 1900 Royal Oaks Drive, Sacramento, CA 95815.
b. Color of signs, panels and lettering shall be as indicated on the drawing in the Appendix of these specifications.
c. Sign Posts shall be constructed of wood and shall conform to the provisions of section 56-
2.02B, Caltrans, or latest equivalent specification.
d. Mounting Hardware shall be furnished by the Contractor and shall conform to the provisions of section 56-2.02D, Caltrans, or latest equivalent specification.
e. To properly provide for changing traffic conditions, the Contractor shall be prepared to furnish or short notice (within 48 hours) additional sign panels, posts and mounting hardware. The Contractor shall make arrangements with a supplier who is able, on a daily basis, to furnish such items on short notice.
3-11.3 Installation
A. For this contract, Two (2) Project Information Signs shall be installed, relocated or modified as directed by the City Engineer and shall conform to the provisions of sections 56-2.03, and 56-
2.04, Caltrans, or latest equivalent specification.
B.
C. Signs to be removed and/or relocated as directed by the City Engineer shall be installed at the new location on the same day said sign is removed from its previous location.
D. The location of each sign shall be as directed by the City Engineer or his designee.
Project information sign should be installed in a way to have bottom of sign at least 7ft above the ground.
The project information signs shall be erected five (5) working days prior to the start of work.
The Contractor shall revise all misspellings and any other corrections on the sign at no extra cost to the City.
Upon completion of the project, the Contractor shall remove and dispose of the Project Information Signs.
3-11.4 Payment. Payment for Project Identification Signs shall be considered as included in the various bid items, or considered in the lump sum price paid for and shall include full Item 3A - Page 64
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 All signs shall have breakaway features as detailed in Standard Plan RS2, "Roadside Sign Details," Caltrans.
"Mobilization,"
SPECIAL PROVISIONS - SECTION 3 - PAGE 12
compensation for furnishing all labor, materials, tools, equipment, and incidentals for doing all work involved in construction of this items and no additional compensation will be allowed therefore.
3-12.1 General. Add the following three paragraphs:
T
officers, employees or agents. The Contractor shall keep these accommodations in a neat and sanitary condition, and shall ensure they comply with all applicable laws, ordinances, and regulations pertaining to public health and sanitation of dwellings and camps.
The Contractor shall, prior to on-site testing and inspection activities and prior to on-site mobilization upon information provided to the Contractor by the City from time to time concerning the anticipated availability of the Site or portions thereof for tests and inspections to be performed in connection with the preparation of the Order of Magnitude Documents, for remedial work relating to Hazardous Materials and Waste as set forth in the Contract Documents, and for demolition, excavation and construction activities.
The foregoing Mobilization Plan shall be revised from time to time as necessary to incorporate additional information on Site availability provided by the City. The Contractor shall confine operations at the Site to areas permitted by law, ordinances, permits and the Contract Documents and shall not unreasonably encumber the Site with materials or equipment. The Contractor shall at all times confine its access and use of the Site to the areas designated by the City from time to time as being delivered and available to the Contractor.
3-12.2 Air Pollution Control. DELETE in its entirety and SUBSTITUTE the following:
3-12.2 Air Pollution Control.
3-12.2.1 General. The Contractor shall be responsible for stabilizing the disturbed soil during construction. The method which it will use must be approved by the Engineer. If a water meter is required by the Engineer during construction, the Contractor shall contact the Desert Water Agency at (760) 323-4971 to obtain said meter. Unless otherwise provided for as separate payment pursuant to a bid item therefore, the cost of this work shall be included in the price of various items in the Bid Schedule, and no additional payment will be made therefore.
The Contractor shall be responsible for maintaining the project site and providing adequate dust control 24 hours a day, everyday, through the duration of the project, in conformance with City requirements, the Standard Specifications, and to the satisfaction of the City Engineer. The Contractor shall complete and submit a City of Palm Springs Fugitive Dust (PM-10) Control Plan, for review and approval by the Engineer, at the Pre-Construction Conference.
Attention is directed to the fact that the project is in an area subject to the provisions of South Coast Air Quality Management District (SCAQMD) Rule 403.1, Supplemental Fugitive Dust Control Requirements for Coachella Valley Sources . Details of SCAQMD Rule 403.1 can be found at:
http://www.aqmd.gov/docs/default-source/rule-book/rule-iv/rule-403-1.pdf?sfvrsn=4 Item 3A - Page 65
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 he Contractor shall provide and maintain enclosed toilets for the use of the Contractor and City's for demolition and construction , prepare a Mobilization Plan for the City's review and approval based
SPECIAL PROVISIONS - SECTION 3 - PAGE 13
The Contractor, and all subcontractors, shall ensure their operations comply with Rule 403.1, and the provisions of the PM-10 Dust Control Plan approved by the Engineer.
3-12.2.2 Dust Control Sign Requirements The Contractor shall construct, erect, and maintain a rectangular, painted sign, outside of any proposed work area. The sign shall be installed within 5 days of the execution of the Contract, and the Contractor shall maintain the sign in good condition until the execution of the Notice of Completion, at which time the Contractor shall remove the sign and deliver it to the City yard. The sign board shall be minimum 8-feet wide by 5-feet high, constructed as follows:
a.
b. Two (2) buried not less than 24 inches into the ground. No concrete shall be used to secure the sign posts. The posts shall be treated with linseed replacement oil tinted with redwood stain.
c. Posts shall be attached to the edges of the plywood with a minimum of two (2) carriage bolts on each post.
d. The front surface of the sign should be painted in the contrasting colors of a white background with black lettering. All paint shall be weather-proof non fading enamel. e. Commercially prepared metal signs mounted on steel posts are also acceptable.
No handwritten signs will be accepted. Stenciled or professionally prepared signs are required.
3-12.2.3 Sign Installation The sign shall be installed such that members of the public can easily view, access, and read the sign at all times and shall be located along the street frontage such that it will not be subject to damage from equipment or vehicles working at the project site. Additionally:
a. The lower edge of the sign shall be mounted a minimum of 6 feet and a maximum of 7 feet above existing ground level for easy viewing.
b. On the construction site the sign should be positioned so as to be visible from all major streets. c. For construction projects that are developed in phases, the sign should be relocated to the areas which are under active construction.
3-12.2.4 Sign Lettering. - The sign shall contain the following words in minimum 1.5, 2, and 3 inch high (as indicated in parentheses) bold face type letters:
PROJECT NAME
: PROJECT NAME
CONTRACTOR ____________XXXXX____________________
CITY PROJECT NO : _________XX-XX____________________
IF YOU SEE DUST COMING
FROM THIS PROJECT CALL
letters:
-XXXX
Item 3A - Page 66
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 1" High Density Overlay exterior type plywood, Grade designation APA HOO EXT. 4" x 4" post securely
(1.5") _____________ (2")
(1.5"): (2")
(1.5") (2")
(2")
(2")
Underneath the sign shall contain the following words in the largest, minimum 3", bold face type (PROJECT MANAGER'S NAME) (XXX) XXX
SPECIAL PROVISIONS - SECTION 3 - PAGE 14
telephone number.
IF YOU DO NOT GET A RESPONSE, PLEASE CALL:
CITY OF PALM SPRINGS: (760) 323-8253
AFTER HOURS OR WEEKENDS PLEASE CALL:
CITY OF PALM SPRINGS POLICE DEPARTMENT (760) 323-8115
OR CALL A.Q.M.D.: 1-800-288-7664
The Contractor shall provide a sample of the sign planning, appearance, and layout for review and approval by the Engineer, prior to installation.
3-12.2.5 Sign Maintenance Dust Control Sign shall be maintained in good condition by the Contractor at all times during the entire contract. In case of damage to the sign from any cause, including graffiti, vandalism, environmental conditions and fading, the Contractor shall repair, re- install, and/or repaint the sign, as required. All such repair or maintenance shall be completed promptly within 2 days of any such damage to the full satisfaction of the Engineer.
3-12.2.6 Payment Full compensation for establishing and implementing a PM-10 Dust Control Plan; furnishing, installing and maintaining required signs; and monitoring and maintaining the project site for compliance throughout the duration of this project shall be considered as included in the various bid items of work, or in the lump sum bid item price for which price shall include full compensation for furnishing all labor, materials, tools, equipment, and incidentals for doing all work involved to establish, implement, monitor and maintain dust control, and no additional compensation shall be allowed therefore.
3-12.4.1 General. ADD the following:
If the Plans designate a staging location within the Project or in close proximity, the Contractor shall utilize such area for their use. Otherwise, storage and staging areas shall be the responsibility of the Contractor. The storage and staging areas shall be as close as possible to the Site. The Contractor shall be responsible for obtaining any permits, leases, or any other items necessary to obtain staging areas. Trash, oil dumping, storage of hazardous wastes, or construction equipment material and parking, fueling of equipment shall not be allowed in any biologically sensitive areas. The Contractor shall ensure the fueling of vehicles occurs only within designated staging areas using appropriate catch basins and devices.
The Contractor shall meet with the Engineer at the proposed staging area prior to any use of the area to ascertain the existing condition. The Contractor shall be responsible to return the storage and staging area and the adjacent area to an equal or better condition as deemed necessary by the Engineer, at no additional cost to the City.
The Contractor shall maintain all Site improvements, including any temporary facilities, equipment or other materials in a graffiti free condition throughout the construction period, until acceptance of the Item 3A - Page 67
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 The Contractor shall supply its Superintendent's or Project Manager's name and 24 hour Underneath in smaller, minimum 1.5" bold face type letters shall be the following words:
"Mobilization,"
SPECIAL PROVISIONS - SECTION 3 - PAGE 15
Project by the City. Graffiti encountered on the Site shall be removed by the Contractor within 24 hours.
3-12.4.2 Storage in Public Streets. DELETE in its entirety and SUBSTITUTE the following:
Construction materials and equipment shall not be stored in streets, roads, or highways unless specifically authorized by the Engineer. All materials or equipment not installed or used in construction after unloading shall be stored at a location approved by the Engineer.
Excavated material, except that which is to be used as backfill in the adjacent trench, shall be stored at a location approved by the Engineer. Immediately after placing backfill, all excess excavated material shall be removed.
3-12.5.1 General. ADD the following:
be liable for all damages sustained by the City that result from sewage spills caused by its actions.
The Contractor shall designate a person responsible for the development and enforcement of the Spill Prevention and Emergency Response Plan, and for ensuring sewer spills are minimized to the maximum extent possible. The Contractor shall provide a status of all bypass related Work at biweekly progress meetings as requested by the City.
3-12.6.1 General. ADD the following:
This project is subject to the requirements of General Permit No. CAS000002 issued by the State Water Resources Control Board through Order No. 2009-0009-DWQ as further amended by Order No. 2010-0014-DWQ and Order No. 2012-0006-DWQ, or as further amended, extended or replaced by applicable Order adopted by the State Water Resources Control Board. This General Permit regulates discharges of pollutants in storm water associated with construction activity (storm water discharges) to waters of the United States from construction sites that disturb one or more acres of land surface, or that are part of a common plan of development or sale that disturbs more than one acre of land surface. Contractor is responsible for filing a Notice of Intent (NOI) for Permit coverage and a Notice of Termination (NOT) at project end. The Contractor shall refer to and comply with all of the terms of the currently adopted General Construction Permit for Storm Water Dischargers and associated resources available for review online at:
http://www.waterboards.ca.gov/coloradoriver/water_issues/programs/stormwater/#constc_permit_d ocs
3-12.6.3 Storm Water Pollution Prevention Plan (SWPPP). DELETE in its entirety and SUBSTITUTE the following:
The Contractor shall be required to prepare a Storm Water Pollution Prevention Plan (SWPPP) for this project, which shall be submitted to the Engineer for review and approval at the Pre- Transportation (Caltrans) website at:
www.dot.ca.gov/hq/construc/stormwater/manuals.htm
Item 3A - Page 68
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 The Contractor shall observe and comply with the City's policy of zero spills. The Contractor shall Construction Conference. The Contractor's attention is directed to the California Department of
SPECIAL PROVISIONS - SECTION 3 - PAGE 16
The Caltrans website contains SWPPP templates and other important information that may be useful in the preparation of a SWPPP for public works projects. The Contractor shall ensure that the SWPPP prepared for this project complies with the requirements of General Permit No.
CAS000002 and Regional Board Order No. R7-2013-0011, NPDES No. CAS 617002.
Additionally the Contractor shall guarantee that the SWPPP complies with the following measures from the Regulatory Permits and Environmental Commitment Measures:
A. Projects shall not discharge substances in concentrations toxic to human, plant, animal, or aquatic life or that produce detrimental physiological responses.
B.
CCR section 66261.1 et seq. and the California Water Code Section 13050; C. No oil, petroleum products, or rubbish shall be allowed to enter into or be placed where it may be washed by rainfall or runoff into waters of the United States.
D. No equipment maintenance will be done within or near any stream channel where petroleum products or other pollutants from the equipment may enter waters of the United States.
E. Equipment refueling shall not occur within waters of the United States.
F. Any oil or grease leaks shall be immediately cleaned up.
Upon approval of the SWPPP by the Engineer, the Contractor shall file a Notice of Intent for coverage under the State Water Resou
System (NPDES) Permit for Discharges of Storm Water Runoff Associated with Construction NPDES Permit issued as Board Order No. R7-2013-0011, NPDES No. CAS 617002. The Contractor shall refer to and comply with all requirements of the NPDES Permit, available for review online at:
https://www.waterboards.ca.gov/coloradoriver/board_decisions/adopted_orders/orders/2019/00 11whitewater_river_ms4.pdf The Contractor shall ensure that the SWPPP is developed and amended or revised by a Qualified SWPPP Developer (QSD). The Contractor shall ensure that Best Management Practices (BMPs) within the SWPPP are implemented by a Qualified SWPPP Practitioner (QSP). To demonstrate compliance with requirements of this General Permit, the QSD shall include information in the SWPPP that supports the conclusions, selections, use, and maintenance of BMPs.
The Contractor shall designate the QSD and QSP, as the case may be, as the individuals directly responsible for and implementing the SWPPP requirements, and maintenance of the documentation contained therein, during the course of construction until the project has been accepted as complete by the City. The Contractor shall keep the SWPPP at the project site and make it available for review upon request of a representative of the RWQCB or the Engineer.
The Construction Superintendent shall prepare a Construction Schedule and BMP Sequencing Schedule for the project and include it into the SWPPP at the designated location.
Special Note: The Contractor shall ensure it has prepared, in advance, the required SWPPP for submittal at the Pre-Construction Conference. Failure to have prepared an adequate SWPPP for submittal at the Pre-
Item 3A - Page 69
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 Projects shall not discharge waste classified as a "hazardous substance" as defined in Title 22 rces Control Board's General National Discharge Elimination Activity (Statewide General Permit), General Permit No. CAS000002, in accordance with the City's Construction Conference will delay Contractor's start of work, however, the
SPECIAL PROVISIONS - SECTION 3 - PAGE 17
Notice to Proceed shall be issued and working days shall commence, regardless of construction delay in preparing and submitting an adequate SWPPP for
The Construction Superintendent shall prepare a Notice of Termination (NOT), included in the SWPPP, and submit it to the RWQCB following acceptance of the work by the City, but prior to final payment.
Throughout the duration of the work, the Construction Superintendent shall ensure the following construction storm water monitoring actions are performed:
A. Conduct site inspections before and after storm events.
B. Conduct inspections of construction sites prior to anticipated storm events and after actual storm events to identify areas contributing to a discharge of storm water associated with construction activity, and evaluate whether control practices to reduce pollutant loadings identified in the SWPPP are adequate and properly implemented or whether additional control practices are needed. A record of the inspections must include the date of the inspection, the individual(s) who performed the inspection, and the observations.
C. Any noncompliance or anticipated noncompliance shall be reported to the Engineer immediately, for reporting to the Regional Water Quality Control Board (RWQCB). The notifications shall identify the type(s) of noncompliance, describe the actions necessary to achieve compliance, and include a time schedule, subject to the modifications by the RWQCB, indicating when compliance will be achieved.
The Contractor shall maintain a copy of the General Stormwater Permit and the SWPPP at the construction site and shall make the General Stormwater Permit available to operating personnel Contractor elect not to have a construction field office, the Engineer will, on request, reserve filing space within the facilities for City Inspection Personnel to assist in complying with this requirement.
The Contractor shall allow authorized agents of the California Regional Water Quality Control Board (Regional Board), State Water Resources Control Board, U.S. Environmental Protection Agency, and local storm water management agencies, upon the presentation of credentials and other documents as may be required by law, to:
1. Enter, at reasonable times, upon the construction site a the work.
2. Have access to and copy, at reasonable times, any records that must be kept as specified in the General Stormwater Permit.
3. Inspect, at reasonable times, the construction site and related erosion and sediment control measures.
4. Sample or monitor, at reasonable times, for the purpose of ensuring compliance with the General Stormwater Permit.
5. The Contractor shall grant Regional Water Board staff, or an authorized representative, upon presentation of credentials and. other documents as may be required by law, to enter the project site at reasonable times, to ensure compliance with the terms and conditions of the WQC and/or to determine the impacts the project may have on waters of the United States.
Item 3A - Page 70
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 work occurring due to the Contractor's
the Engineer's approval.
and local, State, and Federal agencies' representatives during construction activities. Should the nd the Contractor's facilities pertinent to
SPECIAL PROVISIONS - SECTION 3 - PAGE 18
Prior to commencing work, the Contractor shall make such amendments to the SWPPP as are to the Engineer for approval and file. The amendments shall include an Erosion Control Plan (ECP), water pollution control measures. The amended and approved SWPPP shall be kept at the project field office.
The Contractor is notified that the SWPPP must be amended from time to time during construction to reflect actual construction practices and such amendments shall be submitted to the Engineer or plans to amend the
SWPPP, due to field conditions or any other reason, he shall propose the necessary amendments to the Engineer for approval at least five (5) working days prior to implementation.
The SWPPP and amendments shall not be construed to be a to review and understand the General Stormwater Permit before submitting a Bid. By submitting a Bid, the Contractor acknowledges satisfaction as to the requirements of the General Stormwater Permit.
3-12.6.5 Payment. DELETE in its entirety and SUBSTITUTE the following:
Full compensation for compliance with the provisions of Section 3- the Standard Specifications will be paid for at the bid item price for which price shall include full compensation preparing a SWPPP, filing the NOI and NOT, permit fees, and for furnishing all labor, materials, tools, equipment, and incidentals for doing all work involved to establish, implement, monitor and maintain the BMP
-
tandard Specifications, and as amended by these Special Provisions, will be considered as included in the various bid items, and no additional payment will be allowed therefore.
SPECIAL NOTE: Prior to final payment, the Contractor shall provide a final report on implementation RWQCB.
The Contractor shall be responsible for payment of any administrative fines that may be imposed on the City due to the
payments.
3-13.1 Completion. ADD the following:
tion to perform and complete the Work in accordance with the Contract shall be absolute. Neither any payment by the City to the Contractor, nor any use or occupancy of the Work or any part thereof by the City, nor any review of a Shop Drawings and Working Drawing or sample submittal, will constitute an acceptance of Work or any portion of it.
If the Engineer finds materials, equipment, or workmanship which does not meet the terms of the Contract, the Engineer will prepare a Punchlist and submit it to the Item 3A - Page 71
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 required to make it coincide with the Contractor's planned operations and submit the amendments described in Section "Construction Project Diversion and Control of Water'', along with any plan for within five (5) working days of the Engineer's written request. If the Contract waiver of the Contractor's obligation
12.6 "Water Pollution Control," of
"Water Pollution Control,"
's required by the SWPPP, and no additional
compensation shall be allowed therefore. In the event there is no separate bid item for 'Water Pollution Control," payment for compliance with the provisions of Section 3 12.6 'Water Pollution Control," of the S
of the SWPPP and compliance with the NPDES Permit for the City's use in its annual report to the Contractor's failure to comply with the terms of the applicable permits regulating Water Pollution Control. Administrative fines, if imposed, will be withheld from the Contractor's The Contractor's obliga
Contractor. If, in the Engineer's
SPECIAL PROVISIONS - SECTION 3 - PAGE 19
judgment, the Work has been completed, the Engineer will schedule acceptance of the Work by the City Council.
ADD: 3-13.1.1 Requirements Before Requesting a Walk-through.
Walk-through is the procedure used by the City to generate a Punchlist prior to Acceptance.
The following items shall be required prior to requesting a walk-through:
a) Remove temporary facilities from the Site.
b) Thoroughly clean the Site.
c) Provide completed and signed Red-lines in accordance with 3- -lines and Record
d) Provide all material and equipment maintenance and operation instructions and/or manuals.
e) Provide all warranties and guarantees required by the Contract Documents.
f) Provide all tools which are a permanent part of equipment installed in the Project.
g) Provide and properly identify all keys, construction and permanent.
h) Provide all final Special Inspection reports required by the Uniform Building Code.
i) Provide all certificates for materials, back-flows, glulam beams, underground storage tanks, etc.
j) Provide all items that this contract requires to be supplied as extra stock. All items shall be wrapped, sealed, or placed in a container as necessary to allow for storage by the City for future use. The amount specified in this contract shall be verified by the City and the Contractor.
k) Ensure all EOCP documents and certified wage rate documents (if applicable) have been submitted from the beginning of the job to complete close-out.
ADD: 3-13.1.2 Walk-through and Punchlist Procedure. The following procedure outlines the
a) When the Contractor considers that the Work and Services are complete, the Contractor shall in writing notify the City that the Project is complete and request that the City perform a walk-through for generation of a Punchlist. The Contractor shall notify the City at least 7 days in advance of the time the walk-through is to be performed.
b) The City will determine if the Contractor is ready for a walk-through by verifying whether the Contractor has provided or completed all items as required by 3- Requesting a Walk-
Item 3A - Page 72
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4
7.3, "Red
Documents."
steps to be taken upon the Contractor's assertion that the Project is complete:
13.1.1, "Requirements Before
through."
SPECIAL PROVISIONS - SECTION 3 - PAGE 20
c) If the Work includes underground sewer or storm drain installations, the inspection will include televising in accordance with 306-
d) The Engineer will facilitate a walk-through.
e) The Contractor shall make available at the Site for walk-through attendees the plans and specifications and the technical data such as submittals and equipment manuals.
f) The City will generate the Punchlist within 15 Working Days from the date of the walk-through and submit it to the Contractor. The City will not provide a preliminary Punchlist.
g) If the City begins to generate a Punchlist and finds the Project is not substantially complete as defined herein, the City will terminate the walk-through and notify the Contractor in writing.
ed by the Punchlist, the
City discovers that additional corrective Work is required, the City may include that corrective Work in the Punchlist. The Contractor shall be solely responsible for the Site until the Project is completely operational, all Punchlist items have been corrected, and all operation and maintenance manuals have been accepted by the City.
i) The City will meet with the Contractor until all Punchlist items are corrected. If the Contractor takes longer than 30 Working Days to complete the corrective Work, the Project shall be subject to re-evaluation.
j) Submit your request for retention billing to the Resident Engineer 35 Calendar Days after the NOC. After the City receives the retention billing, the Resident Engineer will mail to you a released.
k) Upon Acceptance, the Contractor shall assemble and deliver to the City all records, documents, warranties, bonds, guarantees, maintenance and service agreements, and maintenance and ssed to the Contractor. Warranties shall be submitted in the format described in this section, modified as approved by the City to suit the conditions pertaining to the warranty.
Item 3A - Page 73
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 18, "VIDEO INSPECTION."
h) If, at any time during the City's evaluation of the corrective Work requir "Release of Claims" form which shall be completed and returned before the retention shall be operating manuals. Written warranties, except manufacturer's standard printed warranties, shall be on the Contractor's and the Contractor's agents, material suppliers, installers, or manufacturer's letterhead, addre
SPECIAL PROVISIONS - SECTION 3 - PAGE 21
3-13.3 Warranty. ADD the following:
As a precedent to Acceptance, required by the Contract Documents, the Contractor shall deliver to or
warranties to the City in the same manner.
warranties, special warranties, or special warranties of longer durations as may be required.
If the Contractor completes the Project or portions thereof prior to the time the NOC is issued, the Contractor shall preserve equipment by developing and implementing a preventive maintenance
ADD: 3-13.3.1 Defective Work.
If the Work, or any part thereof, is found to be defective, whether or not manufactured, fabricated, installed, completed or overlooked and accepted by the City, the Contractor shall, promptly and in limits stated therein, either correct such defective Work, or, if it has been rejected by the City, remove it from the Site and replace it with non-defective and conforming Work.
If, upon notice, the Contractor fails to immediately correct the Defective Work, or the Contractor fails to correct the Defective Work in a manner conforming to the Contract Documents, the City may order give rise to any duty on the part of the City to stop Work for the benefit of the Contractor or any other party. The C
stop work notice.
The Engineer may determine in its sole discretion to accept Defective Work instead of having the Contractor correct the Defective Work. However, the Contractor will still be financially responsible for the Defective Work. The Engineer shall issue a deductive Change Order and will incorporate the necessary revisions in the Contract Documents for the Defective Work, the diminished value to the Project, or for the cost to repair the Defective Work.
If the Contractor fails to correct, remove, or replace Defective Work within 5 Working Days from the date of written notice from the City, the City may proceed expeditiously with any correction of Defective Work undertaken in accordance with this section. The City may remedy at a sooner time in the event of an emergency. The City may remedy after 5 Working Days from the date of written notice when the Contractor fails to correct the Defective Work in accordance with the Contract Documents, or when the Contractor fails to comply with any other provision of the Contract Documents.
When undertaking remedial action under this section, the City may: exclude the Contractor from all or part of the Site; take posse
or Services related thereto; and incorporate into the Project all materials and equipment stored at the Site or for which the City has paid but the Contractor has stored elsewhere.
Item 3A - Page 74
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 the City all the manufacturers' warranties required by the Contract Documents, with the City named as beneficiary. For all equipment and machinery bearing a manufacturer's warranty that extends f a longer period of time than the Contractor's warranty, the Contractor shall secure and deliver the The Contractor's warranty shall be in addition to the manufacturers' and suppliers' standard program in compliance with manufacturer's recommendations. accordance with the written instructions of the City e.g., a "punchlist" and within the reasonable time the Contractor to stop all or part of the Project; however, the City's right to stop the Project shall not ontractor shall bear all direct and indirect costs and damages that result from the City's ssion of all or part of the Work, and suspend the Contractor's Work and
SPECIAL PROVISIONS - SECTION 3 - PAGE 22
The Contractor shall pay for any claims, costs, losses, and damages incurred by the City in remedying any deficiency e.g., all costs of repair or replacement of Defective Work and all costs of repair of any other Work on the Project destroyed or damaged by correction, removal, or replacement
The Contractor shall not be allowed an extension of the Contract Time or Milestones because of any dial action to correct
Defective Work.
For Building Projects which require a certificate of occupancy, not including sewer and water days after the Contract duration, the Contractor shall be responsible for reimbursing the City for all costs to provide inspection services required to monitor Work beyond the 30 days. The Contractor shall be billed for this at the Contract Liquidated Damages rate.
ADD: 3-13.3.2 Warranty Format Requirements.
a)
addressed to and for the benefit of the City. Warranties shall be submitted in the format described in this section, modified as approved by City to suit the conditions pertaining to the warranty.
b) The Contractor shall obtain warranties, executed in triplicate by responsible Subcontractors, suppliers, and manufacturers, within 10 days after completion of the applicable item of Work.
The Contractor shall ensure the beginning time of warranty is the Project Completion date.
c) The Contractor shall verify that documents are in proper form, contain full information, and are notarized.
d) The Contractor shall verify that warranties are signed by both The Contractor and the appropriate agent.
e) The Contractor shall retain warranties until the time specified for submittal to City.
f) The warranties shall be provided to City with a neatly typed Table of Contents, identifying each warranty with the number and title of the applicable specification section requiring the warranty and the name of the product or Work item.
g) Each warranty shall be separated with index tab sheets keyed to the Table of Contents listing.
Complete information shall be provided, using separate typed sheets as necessary. The information shall include a list of Subcontractors, supplier, and manufacturer, with name, address and telephone number of responsible principal.
ADD: 3-14 PARTNERING.
Item 3A - Page 75
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 of the Contractor's Defective Work.
delay in the performance of the Project attributable to the City's undertaking reme facilities, if the Contractor fails to correct the defective work listed on the City's "punchlist" within 30 Written warranties, except manufacturer's standard printed warranties, shall be on the Contractor's and its agents', material suppliers', installers', or manufacturers' own letterhead, Except for items put into use with City's permission with date mutually agreed upon in writing,
SPECIAL PROVISIONS - SECTION 3 - PAGE 23
3-14.1 General.
The Contractor may request the formation of a Partnering relationship by submitting a request in approved by the Engineer, scheduling of a Partnering workshop, selecting the Partnering facilitator and workshop, selecting the Partnering facilitator and workshop site, and other administrative details shall be as agreed to by both Parties.
The establishment of a Partnering relationship will not change or modify the terms and conditions of the Contract and will not relieve either party of the legal requirements of the contract.
The goals of partnering shall include:
a)
including Subcontractors actively working together as partners; b) Avoidance of destructive confrontation and litigation among the parties; c) Mutual understanding on how the Work is to be conducted; d) Establishment of mutual key results to facilitate Project success; and, e) Establishment of an atmosphere of team work, trust, and open communication.
3-14.2 Payment. The payments involved in providing a facilitator and a workshop site will be borne equally by the City and the Contractor. The Contractor shall pay all compensation for the wages and such costs will be reimbursed to the Contractor in a Change Order written by the Engineer unless a Bid item has been established for Partnering. Markups will not be added. Other costs associated with the Partnering relationship shall be borne separately by the party incurring the costs.
ADD: 3-15 SITE ACTIVITIES BY THE CITY OR SEPARATE CONTRACTORS.
3- The City reserves the right to perform work or
operations outside the scope of Work of this contract related to the Project with City Forces, Separate Contractors, or both. If Work to be performed by another party was not noted in this contract, the City will give written notice to the Contractor 10 Working Days prior to the start of any work. If the Contractor determines that the work being performed by the City or others may interfere with, or cause damages to Work being performed by the Contractor, the Contractor shall notify the City in
3-15.2 Integration of the Work with Separate Contractors. When specified in the Contract Documents, prepare a plan in order to integrate the work performed by Separate Contractors, City Forces, or both with the performance of the Work and submit the plan to the Engineer for approval.
The plan shall be fair and reasonable for you and the Separate Contractors. Work with Separate Contractors to reach an agreement for the prepared plan. Arrange the performance of the Work so that the Work and the work of the Separate Contractors are, to the extent applicable, properly integrated and jointed in a manner that avoids any damage to the Work or to the work of the Separate Contractors.
Item 3A - Page 76
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 writing to the Engineer after approval of the Contract. If the Contractor's request for Partnering is The Construction Manager, the City's representatives, and the Contractor's representatives expenses of the facilitator and of the expenses for obtaining the workshop site. The City's share of
15.1 City's Right to Award Separate Contracts.
writing within 3 days of the City's notice.
SPECIAL PROVISIONS - SECTION 3 - PAGE 24
3-15.3 Coordination. Coordinate your activities and the Schedule with the activities and schedules of the Separate Contractors and make any revisions to the Schedule deemed necessary to avoid any disruption to the Work or to the work of the Separate Contractors.
3-15.4 Use of Site. Provide the City and the Separate Contractors reasonable opportunities for the storage of materials and equipment and performance of their work. Connect and coordinate Work and operations with the work and operations of the City and the Separate Contractors as required by the Contract Documents.
Coordinate traffic control with the Separate Contractors for other projects and minimize the impact to the community. Prior to the start of construction, submit your plan for coordination.
3-15.5 Deficiency in Work of Separate Contractors.
If part of your Work depends on proper execution or results upon construction or operations by the City or a Separate Contractor, prior to proceeding with that portion of the Work, promptly report to the Separate Contractor and the Engineer any apparent discrepancies or defects in construction that would render it unsuitable for proper execution and results. Use good faith efforts to resolve any such discrepancies or defects or any related disagreements. Your failure to report constitutes your acceptance of the Work of Separate Contractors as fit, proper, and coordinated with the Work.
3-15.6 Payment.
Payment for reporting deficiencies, coordinating, and resolving discrepancies shall be included in the Contract Price.
- END OF SECTION -
Item 3A - Page 77
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4
SPECIAL PROVISIONS - SECTION 4 - PAGE 1
SECTION 4 CONTROL OF MATERIALS
4-2 PROTECTION. ADD the following:
Repair or replace any equipment and materials in the event of vandalism, damage, or theft at no additional cost to the City.
4-3.1 General. ADD the following:
Materials typically accepted by Certificate of Compliance shall not require inspection at the source unless specified in the Special Provisions. For a list of these items or materials, you may refer to the Contract Documents.
Location changes to the source of materials requiring inspection without the required 24 hour notification may result in non-compliant material subject to rejection. You shall be responsible for staff charges resulting from last minute changes or cancellations once staff has been deployed. The Engineer shall issue a deductive Field Order for a minimum of 2 hours of staff time to reimburse the City for misdirected staff charges. For private contracts, the permittee shall be notified in writing of the additional staff charges incurred.
Steel pipe in sizes larger than 18 inches shall require inspection at the source of production.
ng, lining, coating,
and testing. You shall incur additional inspection costs outlined in 4-
All parts of production (including but not limited to product fabrication, welding, testing, lining, and coating of straight pieces and specials) shall be performed or produced in the United States.
Welding and all testing shall be performed by certified welders and testing staff with credentials traceable in the United States.
ADD: 4-3.4 Special Inspection.
Certain elements of the Work may be subject to special inspection required by applicable building codes, and a building permit issued to the Engineer prior to construction (or to be issued to the to determine if applicable building permits have been previously issued by the Building Official for construction of any structural elements to be incorporated into the Work. Unless otherwise indicated, the Contractor
the Work to identify any requirements in obtaining building permits that may be required for the Work.
Special inspection and testing shall be provided by the City.
Special Inspectors provided by the City will be certified by the BO to perform the functions of a Special Inspector, and the Contractor shall comply with all direction given by a Special Inspector as if given by the BO. The Contractor shall accommodate the Special Inspectors acting on behalf of the BO as follows:
Item 3A - Page 78
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 City's qualified inspection agency approved by the Engineer shall witness all weldi
3.3, "Inspection of Items Not
Locally Produced".
Contractor) by the City's Building Official (hereinafter "BO"). It is the Contractor's responsibility shall contact the City's Building Official prior to starting
SPECIAL PROVISIONS - SECTION 4 - PAGE 2
i.
approved design Drawings and Specifications. Shop Drawings, Working Drawings, or both may be used only as an aid to inspection. Special Inspections are to be performed on a continuous basis, meaning that the Special Inspector is on site at all times observing the Work requiring Special Inspection.
ii. Periodic inspections, if any, shall have prior approval by the BO based on a separate written plan prepared by the Contractor and reviewed and approved by the BO and the Engineer.
iii. The Special Inspector shall bring nonconforming items to the immediate attention of the Contractor and note all such items in the daily report. If any item is not resolved in a timely manner or is about to be incorporated in the Work the Special Inspector will immediately notify the BO, notify the Engineer, and post a discrepancy notice.
iv. Furnish Daily Reports: Special Inspectors will complete and sign both the Special Inspection record and the daily report form for each daily inspection to remain at the Site with the Contractor for review by the Engineer and BO.
v. The Special Inspector or inspection agency shall furnish weekly reports of tests and inspections directly to the Engineer, BO and others as designated on the plans, permits or herein. These reports shall include the following:
1. Description of daily inspections and tests made with applicable locations;
2. Listing of all nonconforming items;
3. Report on how nonconforming items were resolved or unresolved as applicable;
4. Itemized changes authorized by the Engineer and BO if not included in nonconformance items.
vi. The Special Inspector will submit a final signed report to the Engineer and BO stating that Work requiring Special Inspection and testing were inspected, tested and reported, and to the best of Documents, approved revisions and the applicable workmanship provisions of the building codes whichever is in effect on the permitted Plans. Items not in conformance, unresolved items or any discrepancies in inspection coverage (i.e., missed inspections, periodic inspections when continuous was required, etc.) will be specifically itemized in this report. Final inspection of the structure will not be scheduled until the final report for all Work items requiring Special Inspection have been reviewed and approved by the Engineer and BO.
The Contractor shall be responsible for the following coordination of Special Inspections provided by
i. The Contractor shall notify the Special Inspector prior to performing any item of Work that requires Special Inspection and shall review the Contract Documents and perform any necessary preparatory Work at the Site.
ii. The Contractor is responsible for providing the Special Inspector access to approved Drawings
Item 3A - Page 79
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 Observe Work: The Special Inspector shall observe the Work for conformance with the BO's Special Inspector's knowledge, is in conformance with the approved drawings and Contract the City's Special Inspectors:
and Specifications at the Project's Site.
SPECIAL PROVISIONS - SECTION 4 - PAGE 3
iii. The Contractor shall be responsible for retaining at the Site all Special Inspection records submitted by the Special Inspector and providing these records for review by the Engineer upon request.
iv. The Contractor shall not perform any items of Work that requires Special Inspection without the presence of the Special Inspector during the performance of that Work. Work requiring continuous inspection performed without Special Inspection shall be subject to removal.
v. Upon completion of task requiring Special Inspection, the Contractor shall submit to the Engineer all Special Inspection reports that certify that the Work requiring Special Inspection has been completed in accordance with the Contract Documents and the applicable building codes and approved by the BO.
ADD: 4-3.5 Quality Assurance.
The City uses a Quality Assurance Program (QAP) to ensure a material is produced to comply with the Contract. The City may examine the records and reports of tests the prime contractor performs if they are available at the job site.
The Contractor shall schedule work to allow time for QAP.
4-6 TRADE NAMES. DELETE in its entirety and SUBSTITUTE the following:
In accordance with California Public Contract Code § 3400(b), and as specified herein this Section 4-6, the Contractor shall submit its list of proposed
within
20 days after award of the contract.
If an offered substitution by the Contractor for the trade names specified in the Contract necessitates changes to, or coordination with, other items of the Work, the information submitted shall include details showing such changes. The Contractor shall perform these changes as part of the substitution side by taking no exceptions to the proposed substitution shall not relieve the Contractor from responsibility for the efficiency, sufficiency, quality, and performance of the substitute material or equipment, in the same manner and degree as the material and equipment specified by name.
Whenever materials or equipment are indicated in the Contract Documents by using the name of a proprietary item or the name of a particular Supplier, the naming of the item is intended to establish the type, function, and quality required. Unless stated otherwise, materials or equipment of other Suppliers may be accepted if sufficient information is submitted to the Engineer for review to determine whether the material or equipment proposed is equivalent or equal to that named.
R
responsible to ensure their Bid includes the price required for the item as specified, and assumes all is not approved by the Engineer, and any additional
cost associated with furnishing and installing the item as specified in the specifications or plans.
and supporting documentation is submitted within 20 days of contract award. The following information shall be included with any substitution request:
Item 3A - Page 80
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 substitutions for "an equal" ("or equal") item __
of material or equipment and at no additional cost to the City. The lack of action on the Engineer's equest for approvals of "or equal" items prior to Bid Opening will not be considered. Bidders are risk in including a price for an "or equal" item that
The Contractor may bring forward a substitution proposal for an "or equal" item provided the request
SPECIAL PROVISIONS - SECTION 4 - PAGE 4
a. Whether or not acceptance of the substitute for use in the Work will require a change in any of the Contract Documents to adopt the design to the proposed substitute.
b. Whether or not incorporation or use of the substitute in connection with the Work is subject to payment of any license fee or royalty.
c. All variations of the proposed substitute from the items originally specified will be identified.
d. Available maintenance, repair, and replacement service requirements. The manufacturer must have a local service agency within 50 miles of the site which maintains properly trained personnel and adequate spare parts and is able to respond and complete repairs within 24 hours.
e. Certification that the proposed substitute will perform adequately the functions and achieve the results called for by the general design, and be similar and of equal substance to that indicated, and be suited to the same use as that specified.
The Contractor is responsible to demonstrate that the type, function, and quality of any such substitute product, material or equipment is equivalent to the specified item. The Engineer shall necessary.
If the Engineer takes no exceptions to the proposed substitution, it will not relieve the Contractor from responsibility for the efficiency, sufficiency, quality, and performance of the substitute material or equipment, in the same manner and degree as the material and equipment specified by name.
The lack of any action by the Engineer does not constitute acceptance of the substitution; all
Acceptance by the Engineer of a substitute item does not relieve you of the responsibility for full compliance with the Contract Documents.
The Bid submittal must be based on the material and equipment specified by name in the Contract.
If the proposal is rejected by the Engineer, you will not be entitled to either an extension in Contract Time, and/or an increase in the Contract Price.
As applicable, no Shop Drawing or Working Drawing submittals will be made for a substitute item approval.
You must reimburse the City for the charges of the Engineer for evaluating each proposed substitution.
ADD: 4-9 PLACING ORDERS.
Item 3A - Page 81
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 There is no guaranteed time frame for the Engineer's review of the substitution requests. require at the Contractor's expense additional data about the proposed substitution he deems approved "or equal" substitutions must be approved in writing by the Engineer. nor will any substitute item be ordered, installed, or utilized without the Engineer's prior written
SPECIAL PROVISIONS - SECTION 4 - PAGE 5
The Contractor shall place the orders for all long lead-time supplies, materials and equipment within 3 working days after receipt of the fully executed contract from the City of Palm Springs. If an item requires pre-approval by the Engineer pursuant to a Submittal, the Contractor shall place the with a statement from the vendors that the orders for said supplies, materials, and equipment has been received and accepted by said vendors within 15 working days from the date of execution of Contract.
- END OF SECTION -
Item 3A - Page 82
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 order within 3 working days of the Engineer's approval. The Contractor shall furnish the Engineer
SPECIAL PROVISIONS - SECTION 5 - PAGE 1
SECTION 5 LEGAL RELATIONS AND RESPONSIBILITIES
5-1 LAWS AND REGULATIONS. ADD the following:
The Contractor shall give the notices required by law and comply with all laws, ordinances, rules and regulations pertaining to the conduct of the Work. The Contractor shall be liable for violations of the law in connection with Work provided by the Contractor.
If the Contractor observes that the Plans, Specifications, or other portions of the Contract Documents are at variance with any laws, ordinances, rules or regulations, he shall promptly notify the Engineer in writing of such variance. The City will promptly review the matter and, if necessary, shall issue a Change Order or take any other action necessary to bring about compliance with the law, ordinance, rule or regulation in questions. The Contractor agrees not to perform work known to be contrary to any laws, ordinances, rules or regulations.
ADD: 5-1.1 Environmental & Safety Laws. Following is not an exhaustive list of the laws to be complied with by the Contractor. It is a partial list of some specific laws that the Contractor shall be aware of and comply with. They are added here for convenience as follows:
a) Environmental Protection Agency regulations (40 CFR, Part 15).
b) Clean Air Act of 1970, e.g., §306 (42 U.S.C. 7606), Executive Order 11738, prohibiting contracting with Clean Air Act violators; and §§608 and 609 (42 U.S.C. 7671g, 7671h) as amended November 15, 1990, prohibiting the intentional release of chlorofluorocarbons into the environment when performing Work.
c) Clean Water Grant Program Bulletin 76A which augments the National Historic Preservation Act General Requirements.
d)
Federal OSHA 29, CFR 1910, facilities Process Safety Management (PSM) manual, and the
e) California Title 8, §5208 and §1529, and Title 40 CFR Part 61.
f) Flood Disaster Protection Act of 1973 (42 USC 4001 et seq, as amended).
g) Senate Bill 198 and specifically shall have a written Injury Prevention Program on file with the City in accordance with all applicable standards, orders, or requirements of California Labor Code, §6401.7. This Program shall be submitted to the Engineer at the preconstruction meeting.
h) State Energy Conservation Plan issued in compliance with the Energy Policy and Conservation Act (P.L. 94-163) as set forth in Division 15 of the Public Resources Code of the State.
i) Clean Water Act (CWA) - The Federal Water Pollution Control Act Quality Act enacted in 1972 by Public Law 92-500 and amended by the Water Quality Act of 1987. The Clean Water Act prohibits the discharge of pollutants to Waters of the United States unless said discharge is in Item 3A - Page 83
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 of 1966 (16 U.S.C. 470) as specified under§[01560], 'Temporary Environmental Controls" of the CAL OSHA 5189 "Process Safety Management," CAL OSHA 3220 "Emergency Action Plan," City's Risk Management Plan.
SPECIAL PROVISIONS - SECTION 5 - PAGE 2
accordance with an NPDES permit. The 1987 amendments include guidelines for regulating municipal, industrial, and construction storm water discharges under the NPDES program.
j) Endangered Species Act of 1973 (ESA; 7 U.S.C. §136, 16 U.S.C. §1531 et seq).
ADD: 5-1.2 CALIFORNIA CODE OF REGULATIONS TITLE 24 AND AMERICANS WITH
DISABILITIES ACT
The Contractor shall comply with all portions of the ADA and Title 24. For specific services and public accommodations, you may contact:
The U.S. Department of Justice
950 Pennsylvania Avenue,
NW Civil Rights Division, Disability Rights Section
NYA Washington, D.C. 20530
800-514-0301 (Voice), 800-514-0383 (Teletypewriter).
The Contractor shall acknowledge and agree that it is aware of and shall comply with the federally- mandated ADA.
The Contractor and its Subcontractors are responsible for administering their own ADA and Title 24 program in your Work area. The Contractor shall ensure that these ADA requirements are included in the subcontracts.
The Contractor shall pay all claims, costs, losses, and damages incurred by the City in undertaking remedial action to correct your violations of ADA or Title 24. The City shall be entitled to an appropriate decrease in the Contract Price, and, if the Parties are unable to agree as to the amount thereof, the City may unilaterally issue the Change Order.
The Contractor shall certify to the City that you shall comply with the ADA by adhering to all of the provisions of the ADA listed.
The Contractor shall not discriminate against qualified persons with disabilities in any aspects of employment including recruitment, hiring, promotions, conditions and privileges of employment, training, compensation, benefits, discipline, layoffs, and termination of employment.
No qualified individual with a disability may be excluded on the basis of disability, from participation in, or be denied the benefits of services, programs, or activities by you or your Subcontractors providing services for the City.
The Contractor shall post a statement addressing the requirements of the ADA in a prominent place at the Work Site.
The Contractor shall require in each subcontract that your Subcontractor shall abide by these provisions.
ADD: 5-1.3 Drug-Free Workplace.
Item 3A - Page 84
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 Questions about the City's ADA Policy should be referred to the City's ADA Coordinator.
SPECIAL PROVISIONS - SECTION 5 - PAGE 3
The Contract is subject to a Drug-Free Workplace Policy and applies equally to the Contractor and its Subcontractors. The elements of the policy are outlined below.
Definitions:
A. -
with a contract with the City for the construction, maintenance, or repair of any facility or public work by an entity at which employees of the entity are prohibited from engaging in the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance in accordance with the requirements of this section.
B. s your employee.
C.
Section 202 of the Controlled Substances Act (21 U.S.C. Sec. 812).
D.
Prior to Award, you shall certify to the City that you shall provide a Drug-free Workplace by doing all of the following:
1. Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited in the person's organization's workplace and specifying the actions that shall be taken against employees for violations of the prohibition.
2. Establishing a drug-free awareness program to inform employees about all of the following:
i. The dangers of drug abuse in the workplace.
ii. The person's or organization's policy of maintaining a Drugfree Workplace. iii. Any available drug counseling, rehabilitation, and employee assistance programs. iv. The penalties that may be imposed upon employees for drug abuse violations.
3. Posting the state
office. For projects large enough to necessitate a construction trailer at the Site, the required signage would also be posted at the Site.
4. The Contractor shall require in each Subcontract that its Subcontractor shall abide by these provisions. The Contractor and its Subcontractors are individually responsible for its own Drug-free Workplace programs.
5. The requirements of a drug-free awareness program can be satisfied by periodic tailgate sessions covering the various aspects of drug abuse education. Although an in-house employee assistance program is not required, you should be able to provide a Item 3A - Page 85
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 "Drug free Workplace" means a site for the performance of Work done in connection "Employee" mean
"Controlled substance" means a controlled substance in schedules I through V of "Contractor'' means You.
ment required by subsection "a" in a prominent place at your main
SPECIAL PROVISIONS - SECTION 5 - PAGE 4
listing of drug rehabilitation and counseling programs available in the community at large.
ADD: 5-1.4 Non-Discrimination. The Contractor shall comply with all applicable federal, state and local laws; ordinances, rules, statutes, orders, regulations, or other legal requirements of California; the California Fair Employment and Housing Act; those Laws prohibiting discrimination, on account of race, religion, color, sex, age, marital status, ancestry, national origin, sexual orientation, gender identity, physical or mental disability, or medical condition, e.g.,: zoning, environmental, building, fire and safety codes and coverage, density and density ratios and lien laws existing as of the date of the execution of this contract. The Contractor shall certify to compliance with non- discrimination regulations and submit with its Bid the required certification form, stating the following:
In connection with its performance under this Agreement, Contractor shall not discriminate against any employee or applicant for employment because of actual or perceived race, religion, color, sex, age, marital status, ancestry, national origin (i.e., place of origin, immigration status, cultural or linguistic characteristics, or ethnicity), sexual orientation, gender identity, gender expression, ensure that applicants are employed, and that employees are treated during their employment, an agreement with Contractor, and in executing this Agreement, Contractor certifies that its actions and omissions hereunder shall not incorporate any discrimination arising from or related to any prohibited basis in any Contractor activity, including but not limited to the following:
employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship; and further, that Contractor is in full compliance with the provisions of Palm Springs Municipal Code Section 7.09.040, including without limitation the provision of benefits, relating to non-discrimination in city contracting.
The Contractor shall:
1. Establish or observe employment policies, which affirmatively promote opportunities for minority persons at all job levels.
2. Communicate this policy to all persons concerned, including all company employees, outside recruiting services, especially those serving minority communities, and to the minority communities at large.
3. Take affirmative steps to hire minority employees within the company.
5-3.3 Payroll Records. DELETE in its entirety and SUBSTITUTE with the following:
The Contractor is required to submit all certified payroll records electronic format meeting DIR approval, and submitted directly on-line at:
https://www.dir.ca.gov/Public-Works/Certified-Payroll-Reporting.html?
Item 3A - Page 86
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 physical or mental disability, or medical condition (each a "prohibited basis"). Contractor shall without regard to any prohibited basis. As a condition precedent to City's lawful capacity to enter ("CPRs") directly to the California
Department of Industrial Relations ("DIR") in accordance with DIR regulations. CPRs shall be in
SPECIAL PROVISIONS - SECTION 5 - PAGE 5
Additionally, on a weekly basis the Contractor shall submit a printed copy of the CPRs directly to Engineer reflecting the wages of all the Contractor and Subcontractor employees engaged in the Work. Printed CPRs shall be legible and in a format required by the Engineer.
5-4 INSURANCE. DELETE in its entirety and SUBSTITUTE with the following:
The insurance provisions herein shall not be construed to limit the Contractor's indemnity obligations contained in this contract.
5-4.1 Policies and Procedures. The Contractor shall procure the insurance described below, at its sole cost and expense, to provide coverage against claims for loss including injuries to persons or damage to property, which may arise out of or in connection with the performance of the Work by the Contractor, the Contractor's agents, representatives, officers, employees or subcontractors.
At a minimum, on all contracts, Commercial General Liability, Commercial Automobile Liability, and nature and location of the Work, the Engineer reserves the right to require the additional policies of insurance related to:
Contractors Pollution Liability Insurance
Contractors Hazardous Transporters Pollution Liability Insurance Builders Risk
Architects and Engineers Professional Insurance (Errors and Omissions Insurance)
If the Contractor determines these insurance policies are not applicable to the Work, the Contractor be returned with
The Contractor shall maintain this insurance for the duration of this contract and at all times thereafter when the Contractor is correcting, removing, or replacing Work in accordance with this contract. The deemed limited to the insurance coverage required by this contract.
Payment for insurance shall be included in the various items of Work as bid by the Contractor, and except as specifically agreed to by the City in writing, the Contractor shall not be entitled to any additional payment. The Contractor shall not begin any work under this contract until it has provided and the City has approved all required insurance. Policies of insurance shall provide that the City is entitled to 30 days (ten days for cancellation due to non-payment of premium) prior written notice of cancellation or non-renewal of the policy. Maintenance of specified insurance coverage is a material evidence of renewal during the term of this contract may be treated by the City as a material breach of contract.
5-4.2 Types of Insurance.
5-4.2.1 Commercial General Liability Insurance. Commercial General Liability Insurance written on the current version of the ISO Occurrence form CG 0001 or an equivalent form providing coverage Item 3A - Page 87
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 Worker's Compensation insurance shall be provided. Depending upon the type of construction, shall request the Engineer's waiver of a requirement to submit these insurance policies within 5 working days receipt of City's Notice of Award. All required insurance policies must the Contractor's executed Agreement.
Contractor's liabilities under this contract, e.g., the Contractor's indemnity obligations, shall not be element of this contract and the Contractor's failure to maintain or renew coverage or to provide
SPECIAL PROVISIONS - SECTION 5 - PAGE 6
at least as broad. The policy shall cover liability arising from premises and operations, XCU (explosions, underground, and collapse), independent contractors, products/completed operations, personal injury and advertising injury, bodily injury, property damage, and liability assumed under an claims or contractual liability. All costs of defense shall be outside the policy limits. Policy coverage shall be in liability limits of not less than the following:
(a) $1,000,000 for each occurrence (combined single limit for bodily injury and property damage) (b) $2,000,000 aggregate for products-completed operations. (c) $1,000,000 umbrella or excess liability.
(d)
shall provide a separate aggregate limit for products and completed operations coverage. The umbrella or excess policy shall contain a clause stating that it takes effect (drops down) in the event the primary limits are impaired or exhausted.
5-4.2.2 Commercial Automobile Liability Insurance. The Contractor shall provide a policy or policies of Commercial Automobile Liability Insurance written on the current version of the ISO form CA 00 01 12 90 or later version or equivalent form providing coverage providing coverage at least as broad in the amount of $1,000,000 combined single limit per accident, covering bodily injury and property damage for owned, non-
shall be outside the limits of the policy.
5-4.2.3 Commercial Pollution Liability Insurance. The Contractor shall procure and maintain at its expense require its subcontractor, as described below to procure and maintain, the Contractors Pollution Liability Insurance including contractual liability coverage to cover liability arising out of cleanup, removal, storage, or handling of hazardous or toxic chemicals, materials, substances, or any other pollutants by the Contractor or any Subcontractor in an amount not less than $2,000,000 limit for bodily injury and property damage. All costs of defense shall be outside the limits of the policy. Any such insurance provided by a subcontractor instead of the Contractor shall be approved a certification by the Contractor that all activities for which the Contractors Pollution Liability Insurance will provide coverage will be performed exclusively by the Subcontractor providing the insurance. The deductible shall not exceed $25,000 per claim.
Contractual liability shall include coverage of tort liability of another party to pay for bodily injury or property damage to a third person or organization. There shall be no endorsement or modification of liability. Occurrence based policies shall be procured before the Work commences and shall be maintained for the duration of this contract. Claims Made policies shall be procured before the Work commences, shall be maintained for the duration of this contract, and shall include a 12 month extended Claims Discovery Period applicable to this contract or the existing policy or policies shall continue to be maintained for 12 months after the completion of the Work under the Contract without advancing the retroactive date. Except as provided for under California law, the policy or policies shall provide that the City is entitled to 30 days prior written notice (10 days for cancellation due to non-payment of premium) of cancellation or non-renewal of the policy or policies.
5-4.2.4 Contractors Hazardous Transporters Pollution Liability Insurance. The Contractor shall provide at its expense or require its subcontractor to provide, as described below Contractors Item 3A - Page 88
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 insured's contract (including the tort liability of another assumed in a business contract).There shall be no endorsement or modification limiting the scope of coverage for either "insured vs. insured" Umbrella or excess policy shall follow form over the Contractor's General Liability coverage and owned and hired automobiles ("Any Auto"). All costs of defense separately in writing by the City. Approval of a substitution of a subcontractor's insurance shall require the coverage limiting the scope of coverage for either "insured vs. insured" claims or contractual
SPECIAL PROVISIONS - SECTION 5 - PAGE 7
Hazardous Transporters Pollution Liability Insurance including contractual liability coverage to cover liability arising out of transportation of hazardous or toxic, materials, substances, or any other pollutants by the Contractor or any subcontractor in an amount not less than $2,000,000 limit per occurrence/aggregate for bodily injury and property damage. All costs of defense shall be outside the limits of the policy. The deductible shall not exceed $25,000 per claim. Any such insurance provided by a subcontractor instead of the Contractor shall be approved separately in writing by the Contractor that all activities for which Contractors Hazardous Transporters Pollution Liability Insurance will provide coverage will be performed exclusively by the Subcontractor providing the insurance.
Contractual liability shall include coverage of tort liability of another party to pay for bodily injury or property damage to a third person or organization. There shall be no endorsement or modification of liability. Occurrence based policies shall be procured before the Work commences and shall be maintained for the duration of this contract. Claims Made policies shall be procured before the Work commences, shall be maintained for the duration of this contract, and shall include a 12 month extended Claims Discovery Period applicable to this contract or the existing policy or policies shall continue to be maintained for 12 months after the completion of the Work under this contract without advancing the retroactive date. Except as provided for under California law, the policy or policies shall provide that the City is entitled to 30 days prior written notice (10 days for cancellation due to non-payment of premium) of cancellation or non-renewal of the policy or policies.
5-4.2.5 Contractors Builders Risk Property Insurance. The Contractor shall provide at its expense, and maintain until Final Completion and Acceptance of the Work, a Special Form Builders Risk Policy or Policies. This insurance shall be in an amount equal to the replacement cost of the completed Work (without deduction for depreciation) including the cost of excavations, grading, and filling. The policy or policies limits shall be 100% of this contract value of the Work plus 15% to cover administrative costs, design costs, and the costs of inspections and construction management.
Insured property shall include material or portions of the Work located away from the Site but intended for use at the Site, and shall cover material or portions of the Work in transit.
The policy or policies shall include as insured property scaffolding, falsework, and temporary buildings located at the Site. The policy or policies shall cover the cost of removing debris, including demolition.
The policy or policies shall provide that all proceeds thereunder shall be payable to the City as Trustee for the insureds, and shall name the City, the Contractor, Subcontractors, and suppliers of all tiers as named insureds. The City as Trustee shall collect, adjust, and receive all monies which may become due and payable under the policy or policies, may compromise any and all claims thereunder, and shall apply the proceeds of such insurance to the repair, reconstruction, or replacement of the Work.
Any deductible applicable to the insurance shall be identified in the policy or policies documents and responsibility for paying the part of any loss not covered because of the application of such deductibles shall be apportioned among the parties except for the City as follows: if there is more than one claimant for a single occurrence, then each claimant shall pay a pro-rata share of the per occurrence deductible based upon the percentage of their paid claim to the total paid for all insureds.
Item 3A - Page 89
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 City. Approval of the substitution of a subcontractor's insurance shall require a certification by the the coverage limiting the scope of coverage for either "insured vs. insured" claims or contractual
SPECIAL PROVISIONS - SECTION 5 - PAGE 8
The City shall be entitled to 100% of its loss. Any portion of that loss not covered because of a deductible shall be paid to the City by the Contractor at the same time the proceeds of the insurance are paid to the City as trustee.
Any insured, other than the City, making claim to which a deductible applies shall be responsible for 100% of the loss not insured because of the deductible. Except as provided for under California law, the policy or policies shall provide that the City is entitled to 30 days prior written notice (10 days for cancellation due to non-payment of premium) of cancellation or non-renewal of the policy or policies.
5-4.2.6 Railroad Protective Liability Insurance. Railroad protective liability insurance shall be required for any work located on or within 200 feet of an existing railroad right-of-way, unless otherwise specifically waived by the Engineer. Exclusions relating to performance of operations within the vicinity of any railroad, bridge, trestle, roadbed, tunnel, underpass, or cross shall be deleted from all policies to which they may apply. Alternatively, the Contractor may provide separate Railroad Protective Liability insurance providing coverage, including endorsements, equivalent to that required for the CGL described herein.
5-4.3 Rating Requirements. Except for the State Compensation Insurance Fund, all insurance required by this contract as described herein shall be carried only by responsible insurance authorized by the California Insurance Commissioner to do business in the State, and that have been approved by the City.
5-4.3.1 Non-Admitted Carriers. The City will accept insurance provided by non- business in the State and is included on the List
of Eligible Surplus Lines Insurers (LESLI list).
All policies of insurance carried by non-admitted carriers shall be subject to all of the requirements for policies of insurance provided by admitted carriers described herein.
5-4.4 Verification of Coverage. Contractor shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by the contract. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the to provide
complete, certified copies of all required insurance policies at any time. Additional insured
Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate:
1. The City of Palm Springs, its officials, employees, and agents are named as an additional insured for any and all work
performed with the City
Item 3A - Page 90
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 companies with a rating of, or equivalent to, at least "B++, VII" by AM. Best Company, that are admitted, "surplus
lines" carriers only if the carrier is authorized to do City before work commences. City reserves the right to require Contractor's insurers endorsements are not required for Errors and Omissions and Workers' Compensation policies.
II
... " ("as respects City of Palm Springs City Project No._" or " " may be included in this statement).
SPECIAL PROVISIONS - SECTION 5 - PAGE 9
2. -contributory over any insurance or self-insurance the City performed with the City
3. Language
all impose no obligation or
be crossed out.
4. waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers.
In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies. All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of work shall not
5-4.5 Other Insurance Requirements. The following provisions shall apply to the insurance policies required of Contractor under the contract:
a)
respect to the City and its officers, council members, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City and its officers, council insurance and shall not contribute to it.
b) Any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to City and its officers, council members, officials, employees, agents, and volunteers.
c) All insurance coverage and limits provided by Contractor and available or applicable to the contract are intended to apply to each insured, including additional insureds, against whom a claim is made or suit is brought to the full extent of the policies. Nothing contained in the contract or any other agreement relating to the City or its operations shall limit the application of such insurance coverage.
d) No required insurance coverages may include any limiting endorsement which substantially impairs the coverages set forth in the contract (e.g., elimination of contractual liability or reduction of discovery period), unless the endorsement has first been submitted to the Engineer and approved in writing.
e) Contractor agrees to require its insurer to modify insurance endorsements to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to being required) to comply with the requirements of the endorsements. Certificates of insurance will not be accepted in lieu Item 3A - Page 91
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 "This insurance is primary and non
may have ... " ("as respects City of Palm Springs City Project No._" or ''for any and all work " may be included in this statement).
"Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." such as, "endeavor to" mail and "but failure to mail such notice sh liability of any kind upon the company, its agents or representative" is not acceptable and must Both the Workers' Compensation and Employers' Liability policies shall contain the insurer's waive the Contractor's obligation to provide them.
For any claims related to the contract, Contractor's coverage shall be primary insurance with members, officials, employees, agents, and volunteers shall be in excess of Contractor's
SPECIAL PROVISIONS - SECTION 5 - PAGE 10
of required endorsements, and submittal of certificates without required endorsements may delay insurance submittal requirements as provided in the contract.
f) Contractor agrees to ensure that subcontractors, and any other parties involved with the Project who are brought onto or involved in the Project by Contractor, provide the same minimum insurance coverage required of Contractor. Contractor agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Contractor agrees that upon request, all agreements with subcontractors and others engaged in the Project will be submitted to the City for review.
g) Contractor acknowledges and agrees that any actual or alleged failure on the part of the City to inform Contractor of non-compliance with any insurance requirement in no way imposes any additional obligations on the City nor does it waive any rights in this or any other regard.
h) Contractor shall provide proof that policies of insurance required in the contract, expiring during the term of the contract, have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. Endorsements as required in the contract applicable to the renewing or new coverage shall be provided to City no later than ten (10) days prior to expiration of the lapsing coverage.
i) Requirements of specific insurance coverage features or limits contained in this section are not intended as limitations on coverage, limits, or other requirements, or as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party or insured to be limiting or all-inclusive.
j) The requirements in this section supersede all other sections and provisions of the contract to the extent that any other section or provision conflicts with or impair the provisions of this section.
k) Contractor agrees to provide immediate notice to City of any claim or loss against Contractor arising out of the Work performed under the contract and for any other claim or loss which may reduce the insurance available to pay claims arising out of the contract. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City, or to reduce or dilute insurance available for payment of potential claims.
l) Contractor agrees that the provisions of this section shall not be construed as limiting in any way the extent to which the Contractor may be held responsible for the payment of damages resulting is otherwise responsible.
5-4.6 Policy Endorsements.
5-4.6.1 Commercial General Liability Insurance
Additional Insured. To the fullest extent allowed by law e.g., California Insurance Code § 11580.04, the policy shall be endorsed to include the City and its respective elected officials, officers, employees, agents, and representatives as additional insureds. The additional insured coverage for Item 3A - Page 92
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 commencement of the Work. It is Contractor's obligation to ensure timely compliance with all from the Contractor's activities or the activities of any person or person for which the Contractor
SPECIAL PROVISIONS - SECTION 5 - PAGE 11
(a) Ongoing operations performed by th
c
Your products, or (c) premises owned, leased, controlled, or used by the Contractor.
Primary and Non-Contributory Coverage. The policy shall be endorsed to provide that the coverage with respect to operations, including the completed operations, if appropriate, of the Named Insured is primary to any insurance or self-insurance of the City and its elected officials, officers, employees, agents and representatives. Further, it shall provide that any insurance maintained by the City and its elected officials, officers, employees, agents and representatives shall be in excess of the Contractor's insurance and shall not contribute to it.
Project General Aggregate Limit. The policy or policies shall be endorsed to provide a Designated Construction Project General Aggregate Limit that will apply only to the Work. Only claims payments which arise from the Work shall reduce the Designated Construction Project General Aggregate Limit. The Designated Construction Project General Aggregate Limit shall be in addition to the aggregate limit provided for the products-completed operations hazard.
5-4.6.2 Commercial Automobile Liability Insurance.
Additional Insured. Unless the policy or policies of Commercial Auto Liability Insurance are written on an ISO form CA 00 01 12 90 or a later version of this form or equivalent form providing coverage at least as broad, the policy shall be endorsed to include the City and its respective elected officials, officers, employees, agents, and representatives as additional insureds, with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of the Contractor. This endorsement is limited to the obligations permitted by California Insurance Code § 11580.04.
5-4.6.3 Contractors Pollution Liability Insurance Endorsements.
Additional Insured. The policy or policies shall be endorsed to include as an Insured the City and its respective elected officials, officers, employees, agents, and representatives, with respect to liability arising out of: (a) Ongoing operations perform controlled, or used by the Contractor; Except that in connection with, collateral to, or affecting any construction contract to which the provisions of subdivision (b) of Section 2782 of the California Civil Code apply, this endorsement shall not provide any duty of indemnity coverage for the active negligence of the City and its respective elected officials, officers, employees, agents, and representatives in any case where an agreement to indemnify the City and its respective elected officials, officers, employees, agents, and representatives would be invalid under subdivision (b) of § 2782 of the California Civil Code.
In any case where a claim or loss encompasses the negligence of the Insured and the active negligence of the City and its respective elected officials, officers, employees, agents, and representatives that is not covered because of California Insurance Code §11580.04, the insurer's Item 3A - Page 93
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 Projects for which the Engineer's Estimate is $1,000,000 or more shall include liability arising out of:
e Contractor or on the Contractor's behalf, (b) Your products, (c) Your work, e.g., the Contractor's completed operations performed by the Contractor or on the Contractor's behalf, or (d) premises owned, leased, controlled, or used by the Contractor; the overage for Projects for which the Engineer's Estimate is less than $1,000,000 shall include liability arising out of: (a) Ongoing operations performed by the Contractor or on the Contractor's behalf, (b) ed by the Contractor or on the Contractor's
behalf, (b) the Contractor's products, (c) the Contractor's work, e.g., the Contractor's completed operations performed by the Contractor or on the Contractor's behalf, or ( d) premises owned, leased,
SPECIAL PROVISIONS - SECTION 5 - PAGE 12
obligation to the City and its respective elected officials, officers, employees, agents, and representatives shall be limited to obligations permitted by California Insurance Code §11580.04.
Primary and Non-Contributory Coverage. The policy or policies shall be endorsed to provide that the insurance afforded by the Contractors Pollution Liability Insurance policy or policies is primary to any insurance or self-insurance of the City and its elected officials, officers, employees, agents and representatives with respect to operations including the completed operations of the Named Insured.
Any insurance maintained by the City and its elected officials, officers, employees, agents and representatives shall be in excess of the Contractor's insurance and shall not contribute to it.
Severability of Interest. For Contractors Pollution Liability Insurance, the policy or policies shall provide that the Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability and shall provide cross-liability coverage.
5-4.6.4 Contractors Hazardous Transporters Pollution Liability Insurance Endorsements.
Additional Insured. The policy or policies shall be endorsed to include as an Insured the City and its respective elected officials, officers, employees, agents, and representatives, with respect to liability arising out of: (a) Ongoing operations performed by the Contractor or on the Contrac controlled, or used by the Contractor; Except that in connection with, collateral to, or affecting any construction contract to which the provisions of subdivision (b) of §2782 of the California Civil Code apply, this endorsement shall not provide any duty of indemnity coverage for the active negligence of the City and its respective elected officials, officers, employees, agents, and representatives in any case where an agreement to indemnify the City and its respective elected officials, officers, employees, agents, and representatives would be invalid under subdivision (b) of §2782 of the California Civil Code.
In any case where a claim or loss encompasses the negligence of the Insured and the active negligence of the City and its respective elected officials, officers, employees, agents, and representatives that is not covered because of California Insurance Code §11580.04, the insurer's obligation to the City and its respective elected officials, officers, employees, agents, and representatives shall be limited to obligations permitted by California Insurance Code §11580.04.
Primary and Non-Contributory Coverage. The policy or policies shall be endorsed to provide that the insurance afforded by the Contractors Pollution Liability Insurance policy or policies is primary to any insurance or self-insurance of the City and its elected officials, officers, employees, agents and representatives with respect to operations including the completed operations of the Named Insured.
Any insurance maintained by the City and its elected officials, officers, employees, agents and representatives shall be in excess of the Contractor's insurance and shall not contribute to it.
Severability of Interest. For Contractors Hazardous Transporters Pollution Liability Insurance, the policy or policies shall provide that the Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability and shall provide cross-liability coverage.
5-4.6.5 Builders Risk Endorsements.
Item 3A - Page 94
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 tor's
behalf, (b) the Contractor's products, (c) the Contractor's work, e.g., the Contractor's completed operations performed by the Contractor or on the Contractor's behalf, or ( d) premises owned, leased,
SPECIAL PROVISIONS - SECTION 5 - PAGE 13
Waiver of Subrogation. The policy or policies shall be endorsed to provide that the insurer will waive all rights of subrogation against the City, and its respective elected officials, officers, employees, agents, and representatives for losses paid under the terms of the policy or policies and which arise from work performed by the Named Insured for the City.
Builders Risk Partial Utilization. If the City desires to occupy or use a portion or portions of the Work prior to Final Completion in accordance with this contract, the City shall notify the Contractor and the Contractor shall immediately notify its Builder's Risk insurer and obtain an endorsement that the policy or policies shall not be cancelled or lapse on account of any such partial use or occupancy.
The Contractor shall obtain the endorsement prior to the City's occupation and use.
5-4.6 Deductibles/Self-Insured Retentions. The Contractor shall be responsible for the payment of all deductibles and self-insured retentions. Deductibles and self-insured retentions shall be disclosed to the City at the time the evidence of insurance is provided.
5-4.7 Reservation of Rights. The City reserves the right, from time to time, to review Contractor's insurance coverage, limits, deductibles and self-insured retentions to determine if they are acceptable to the City. The City will reimburse Contractor, without overhead, profit, or any other markup, for the cost of additional premium for any coverage requested by the City but not required by this contract.
5-4.8 Notice of Changes to Insurance. The Contractor shall notify the City 30 days prior to any material change to the policies of insurance provided under this contract.
5-4.9 Excess Insurance. Policies providing excess coverage shall follow the form of the primary policy or policies e.g., all endorsements.
5-4.10 Architects and Engineers Professional Insurance (Errors and Omissions Insurance)
For contracts with required engineering services (e.g., preparation of engineered Traffic Control professional engineering services under this contract, the Contractor shall keep or shall require its Subcontractor in full force and effect, Professional Liability coverage with a limit of $1,000,000 per claim and $2,000,000 annual aggregate.
The Contractor shall ensure both that: (a) the policy retroactive date is on or before the date of commencement of the Project; and (b) the policy will be maintained in force for a period of three years after completion of the Project or termination of this contract whichever occurs last. The Contractor agrees that for the time period defined above, there will be no changes or endorsements to the policy that affect the coverage provided herein
If professional engineering services are to be provided solely by a subcontractor, the Contractor shall (a) certify this to the City in writing and (b) agree in writing to require the Subcontractor to procure Professional Liability coverage in accordance with the requirements set forth above.
5- In accordance
with the provisions of §1860 and §3700 of the California Labor Code, the Contractor shall provide at Contractor against all claims under applicable state workers compensation laws. The City, its elected Item 3A - Page 95
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 Plans (TCP) by the Contractor) for all of the Contractor's employees or Subcontractors who provide
4.11 Workers' Compensation Insurance and Employers Liability Insurance. its expense Workers' Compensation Insurance and Employers Liability Insurance to protect the
SPECIAL PROVISIONS - SECTION 5 - PAGE 14
officials, and employees will not be responsible for any claims in law or equity occasioned by the failure of the Contractor to comply with the requirements of this section. Limits for this insurance shall be not less than the following:
Statutory Employers Liability
Bodily Injury by Accident $1,000,000 each accident
Bodily Injury by Disease $1,000,000 each employee
Bodily Injury by Disease $1,000,000 policy limit
By signing and returning the contract the Contractor certifies that the Contractor is aware of the provisions of §3700 of the Labor Code which require every employer to be insured against liability -insurance in accordance with the provisions of that
code and the Contractor will comply with such provisions before commencing the performance of the work of this contract as required by Section 1861 of the California Labor Code.
Compensation Insurance required under the General Conditions of this contract, the Contractor shall provide additional insurance coverage for claims brought under the any
waters.
The policy or policies shall be endorsed to provide that the insurer will waive all rights of subrogation against the City, and its respective elected officials, officers, employees, agents, and representatives for losses paid under the terms of the policy or policies and which arise from work performed by the Named Insured for the City.
5-6 PATENTS FEES AND ROYALTIES . DELETE in its entirety and SUBSTITUTE with the following:
The Contractor shall pay, at no additional cost to the City, all applicable royalties and license fees on any and all matters arising in connection with the Work. The Contractor shall defend all suits or claims for infringement of patent, trademark, and copyrights against the City and any other Indemnified Parties, and shall save the City and any other Indemnified Parties harmless from loss on account thereof for any and all matters arising in connection with the Work on the Project, such costs to be paid at no additional cost to the City, except with respect to any particular design process or the product of a particular manufacturer or manufacturers specified and required by the City, other than pursuant to the recommendation or suggestion of the Contractor; provided however, if the Contractor has reason to believe that the design, process or product so specified is an infringement of a patent, the Contractor shall be responsible for any loss resulting unless the Contractor has provided the City with prompt written notice of the belief, and the City has nevertheless elected to go forward with such design, process or product so specified.
5-7.1.1 General. ADD the following:
When trenching, place your name and emergency telephone number adjacent to the Work at intervals and locations approved by the Engineer. The method of marking shall be approved by the Engineer.
Item 3A - Page 96
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 Workers' Compensation
for worker's compensation or to undertake self
In addition to the Workers'
Longshore and Harbor Workers' Compensation Act, the Jones Act, general maritime law, and other federal or state laws, resulting from the Contractor's work in, over, or alongside navigable Contractor's
SPECIAL PROVISIONS - SECTION 5 - PAGE 15
Respond and initiate corrective action in accordance with OSHA and within 24 hours of the notice of the nonconforming Work that poses an imminent threat to person or property.
ADD: 5-7.1.3 Health and Safety Plan (HSP).
The Contractor bears the ultimate responsibility for the health and safety of its employees. These specifications shall not be c
considerations.
The Contractor shall have a Health and Safety Plan (HSP) in effect prior to commencement of Work.
The HSP shall meet all OSHA and other applicable requirements.
The HSP shall specifically address procedures and protocols that will be followed to monitor for the presence of hazardous atmosphere, possibility for engulfment, gasses due to organic soils or proximity to landfills, exposure to hazardous products such as may be released when grinding, cutting, or torching galvanized or painted surfaces, contaminated soil, and groundwater, and identify response actions that will be taken when these conditions are encountered.
The HSP shall be provided to the Engineer at least one week before any construction activities begin.
The City will not assume any role in determining the adequacy of the HSP on behalf of the Contractor.
ADD: 5-7.1.4 Reasonable Precautions. The Contractor shall take reasonable precautions for the Safety of, and shall provide reasonable protection to prevent damage, injury, or loss to:
a) Workers and other persons who may be affected thereby;
b) 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; and
c) other property at the Site or adjacent thereto, e.g., trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of the Construction Work.
ADD: 5-7.1.5 Safeguards. The Contractor shall erect and maintain, as required by existing conditions and performance of the Work, 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, and shall comply fully with the requirements of State and/or Federal OSHA.
ADD: 5-7.1.6 Security. The Contractor shall furnish and install all necessary facilities to provide safe means of access to all points where Work is being performed. The Contractor shall take all precautions and measures as may be reasonably necessary to secure the Site, the Project, and the Work at all hours, including evenings, Holidays and non-work hours. Such precautions may include provision of security guards. The payment for security shall be included in the various Bid items.
ADD: 5-7.1.7 Emergencies. If an emergency arises or appears imminent which may affect the Safety of persons or property, the Contractor shall act immediately to prevent and mitigate actual or Item 3A - Page 97
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 onstrued to limit the Contractor's liability nor to assume that the City, its employees or designate, will assume any of the Contractor's liability associated with Site safety
SPECIAL PROVISIONS - SECTION 5 - PAGE 16
threatened damage, injury or loss. Additional costs or extensions of time claimed by the Contractor on account of an emergency not caused by the fault or neglect of the Contractor shall be determined as Extra Work.
ADD: 5-7.1.8 OSHA/Cal OSHA Citations. The Contractor shall indemnify the City against fines, lure to abide by
applicable Safety and health standards.
5-7.2.1 General. Add the following paragraph:
The Contractor shall comply fully with the requirements of §1717 of the Construction Safety Orders, State Department of Industrial Relations, regarding the design of concrete forms, falsework and shoring, and the inspection of same before the placement of concrete. Where the said §1717 requires the services of a civil engineer registered in the State to approve design calculations and working drawings of the falsework or shoring system, or to inspect such system prior to placement of concrete, the Contractor shall employ a registered civil engineer for these purposes, and all costs therefore shall be included in the price named in the Contract for completion of the Work as set forth in the Contract Documents.
ADD: 5-7.7.3 Playground Safety . The Contractor shall provide a secured fence around the playground to prevent use or access. The fence shall not be removed until the independent Playground Safety Audit has been done by the Contractor and the City and the City has accepted the playground design and installation and the punchlist items have been completed.
The Contractor shall provide a certification by a National Playground Safety Institute (NPSI) certified playground inspector that the installed equipment is compliant with all applicable codes.
The payment for fencing around the playground and the playground safety audit shall be included in the other Bid items unless a Bid item has been provided.
ADD: 5-7.7.4 Payment.
The payment for security fencing Work for open excavations shall be included in the Contract Price.
The payment for the fencing around the playground and the playground safety audit is included in the Contract Price.
5-7.8.1 General. ADD the following:
Protect transverse or longitudinal cuts, voids, trenches, holes, and excavations in the right-of-way that cannot be properly completed within 1 Working Day by adequately designed barricades and structural steel plates (plates) that shall support legal vehicle loads in such a way as to preserve unobstructed traffic flow.
Secure approval in advance from authorities concerning the use of any bridging proposed on the Work.
Item 3A - Page 98
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 reasonable attorneys' fees, and defense costs resulting from citations issued to the City by either the federal, state, or local safety enforcement agencies due to the Contractor's fai
SPECIAL PROVISIONS - SECTION 5 - PAGE 17
Shore the trench adequately to support the bridging and traffic loads.
Design plates for HS 20-44 truck loading in accordance with Caltrans Bridge Design Specifications Manual. Evaluate soil conditions and ensure that the plate extends enough beyond the trench walls to support traffic loads.
Make the surface of the plates skid-resistant with a nominal Coefficient of Friction (COF) of 0.35 as determined by California Test Method 342.
Plates shall provide complete coverage to prevent any person, bicycle, motorcycle, or motor vehicle from being endangered due to plate movement causing separations or gaps.
Alternative installation methods may be submitted in accordance with 3-
The Contractor shall install signage and postings with a 2 inch (50.8 mm) minimum letter height indicating the steel plate cover load limit, the
phone number. See 601-
The Contractor shall be responsible for the maintenance of the plates, shoring, and asphalt concrete ramps or any other approved device used to secure the plates. The Contractor shall immediately mobilize necessary personnel and equipment after being notified by the Engineer of a repair needed for such items as plate movements, noise, anchors, and asphalt ramps. Failure to respond to the emergency request within 2 hours shall be grounds for the City to perform necessary repairs that shall be invoiced at the actual cost including overhead or $500 per incident, whichever is greater.
When plates are removed, repair any damage to the pavement with fine graded asphalt concrete mix or slurry seal satisfactory to the Engineer.
ADD: 5-8 INDEMNIFICATION AND HOLD HARMLESS AGREEMENT.
5-8.1 General. The Contractor shall defend, indemnify, and save harmless the City, including its officers, employees, and agents from any and all claims, demands, causes of action, damages, connection with your performance of this Contract for:
1. Bodily injury including, but not limited to, bodily injury, sickness or disease, emotional injury or death to persons, including, but not limited to, the public, any employees or agents of you, the City, or any other contractor; and
2. Damage to property of anyone including loss of use thereof; caused or alleged to be caused in whole or in part by any negligent or otherwise legally actionable act or omission of you or anyone directly or indirectly employed by you or anyone for whose acts you may be liable.
Item 3A - Page 99
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 8, "SUBMITTALS" for the
Engineer's approval.
Company's name, and a 24 hour emergency contact
1, "GENERAL".
, the City's "Station
38", or a member of the public
costs, expenses, actual attorneys' fees, losses or liabilities, in law or in equity arising out of or in
SPECIAL PROVISIONS - SECTION 5 - PAGE 18
Except as otherwise provided by law, these requirements apply regardless of the existence or degree of fault of the City. The Contractor is not obligated to indemnify the City for claims arising from
indemnity obligation shall extend to claims arising after the work is completed and accepted if the claims are directly related to alleged acts or omissions by the Contractor that occurred during the course of the Work. Any inspection of the Work by the City is not a waiver of full compliance with these requirements.
inability to evaluate liability or because the Contractor evaluates liability and determines that the Contractor is not liable. The Contractor must respond within 30 days to the tender of any claim for defense and indemnity by the City, unless this time has been extended in writing by the City. Failure to accept or reject a tender of defense and indemnity within 30 days, in addition to any other remedy authorized by law, the City may withhold such funds the City reasonably considers necessary for its defense and indemnity until disposition has been made of the claim or until the Contractor accepts or rejects the tender of defense, whichever occurs first.
With respect to third-party claims against the Contractor, the Contractor shall agree to waive all rights of any type to express or implied indemnity against the City, its officers, employees, or agents.
Nothing in the contract is intended to establish a standard of care owed to any member of the public or to extend to the public the status of a third-party beneficiary for any of these indemnification specifications.
5-8.2 Responsibility to Other Entities. The Contractor shall be responsible for any liability imposed by law and for injuries to or death of any person, including workers and the public, or damage to property. The Contractor shall indemnify and save harmless any county, other city, governmental agency, or special district, and its officers and employees, connected with the Work, all in the same manner and to the same extent specified for the protection of the City.
5-8.3 Indemnification Agreement. The provisions of this Section 5-8 shall be incorporated as part of the contract, and Contractor shall be bound as follows:
expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively employees included), for damage to property, including property owned by City, from any violation of any federal, state, or local law or ordinance, and from errors and omissions committed by Contractor, its officers, employees, representatives, and agents, that arise out of or relate to erformance under the contract. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the City, its elected officials, officers, employees, agents, and volunteers. Under no circumstances shall the insurance requirements and limits set Work or earlier termination of the contract until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action Item 3A - Page 100
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 conduct delineated in Section 2782 of the California Civil Code. The Contractor's defense and The Contractor's obligation to defend and indemnify is not excused because of the Contractor's To the fullest extent permitted by law, Contractor shall defend (at Contractor's sole cost and agents, and volunteers (collectively the "Indemnified Parties"), from and against any and all liabilities, "Claims"), including but not limited to Claims arising from injuries to or death of persons (Contractor's Contractor's p
forth in the Special Provisions be construed to limit Contractor's indemnification obligation or other liability under the contract. Contractor's indemnification obligation shall survive the completion of the
SPECIAL PROVISIONS - SECTION 5 - PAGE 19
is timely filed, until such action is final. This provision is intended for the benefit of third party Indemnified Parties not otherwise a party to the contract.
ADD: 5-9 CONFLICT OF INTEREST. The Contractor shall establish and make known to its employees appropriate safeguards to prohibit employees from using their positions for a purpose that is, or gives the appearance of being, motivated by desire for private gain for themselves or others, particularly those with whom they have family, business, or other relationships. Project personnel shall not accept gratuities or any other favors from Subcontractors or potential Subcontractors.
The Contractor shall be subject to all federal, state and local conflict of interest laws, regulations, and policies applicable to public contracts and procurement practices, e.g., California Government Code §§1090, et. seq., and 81000, et. seq. If, in performing the Services and/or Work set forth in this 2, §18701(a)(2) of the California Code of Regulations, the Contractor shall be subject to a conflict of interest code requiring the completion of one or more statements of economic interests disclosing
Statements of economic interests shall be made on Fair Political Practices Commission Form 700 and filed with the City Clerk. The Contractor shall file a Form 700 (Assuming Office Statement) within ict of interest
code. The Contractor shall file a Form 700 (Annual Statement) on or before April 1, disclosing any financial interests held during the previous calendar year for which the Contractor was subject to a conflict of interest code.
The Contrac
from any Subcontractors or potential Subcontractors. The Contractor shall not recommend or specify any product, supplier, or contractor with whom the Contractor has a direct or indirect financial or organizational interest or relationship that would violate conflict of interest laws, regulations, or policies.
The Contractor acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement nor shall Contractor enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one year thereafter. The Contractor warrants that it has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement.
If the Contractor violates any conflict of interest laws or any of these conflict of interest provisions, the violation shall be grounds for immediate termination of this Contact. Further, the violation subjects the Contractor to liability to the City for all damages sustained as a result of the violation.
ADD: 5-10 COMMUNITY OUTREACH.
5-10.1 General.
nity outreach plan for the project, the City shall work with you to inform the public (which includes, but shall not be limited to, property owners, renters, homeowners, business owners, recreational users, and other community members and Item 3A - Page 101
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 contract, the Contractor makes, or participates in, a "governmental decision" in accordance with title the Contractor's relevant financial interests.
30 days of the City's written determination that the Contractor shall be subject to a confl tor's personnel employed on the Project shall not accept gratuities or any other favors To ensure consistency with the City's commu
SPECIAL PROVISIONS - SECTION 5 - PAGE 20
stakeholders) of
communicating with the public require close coordination and cooperation with the City.
The Contractor shall perform the community outreach activities required throughout the Contract Time. The Contractor shall assign a staff member who shall perform the required community outreach services.
The Contractor shall closely coordinate the Work with the businesses, institutions, residents, and property owners impacted by the Project.
commencement of construction activities not less than 5 Working Days in advance, coordinating access for vehicular and pedestrian traffic to businesses, institutions, and residences impacted by the Project, reporting activities at all Project progress meetings scheduled by the Engineer, attending the Project pre-construction meeting, attending 2 community meetings, responding to community questions and complaints related to your activities, and documenting, in writing, as well as logging in all inquiries and complaints received into a City-approved internal public contact tracking system maintained by the Contractor.
Special Note: The Contractor shall be required to submit revised notices to all affected property owners of any re-scheduled Work, in sufficient advance of the revised dates. Additionally, upon delay of scheduled Work, the Contractor shall notify all affected property owners of the delayed Work on the date it was previously scheduled.
The Contractor shall utilize electronic communication to coordinate all community outreach. All system within 24 hours of receipt of inquiries and complaints. The Engineer and other City representatives shall have access to and shall review the tracking system on a weekly basis, or more frequently as required. Any updates or a resolution of inquiries and complaints shall be documented electronic files associated with inquiries and/or complaints shall be saved into the individual records.
All public notices, brochures, and other outreach materials shall be provided in dual language translation for English and Spanish speakers.
5-10.2 Quality Assurance.
During the course of community outreach, the Contractor shall ensure that the character of all persons that conduct community outreach (distributing door hangers, attending community meetings, interacting with the public, and etc.) on its behalf shall:
1 Have the ability to speak and comprehend English and/or Spanish, as appropriate for the community or public they are informing.
2 Possess and display easily verifiable and readable personal identification that
3 Have the interpersonal skills to effectively, professionally, and tactfully represent the Contractor, the project, and the City to the public.
5-10.3 Submittals.
Item 3A - Page 102
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 construction impacts. The Contractor's efforts to mitigate construction impacts by Contractor's duties shall include: notifying businesses, institutions, and residents of the inquiries and complaints shall be logged in to the Contractor's approved public contract tracking in the Contractor's public contact tracking system within 24 hours. All graphics, photos, and other identifies the person as the Contractor's employee.
SPECIAL PROVISIONS - SECTION 5 - PAGE 21
The Contractor shall submit to the Resident Engineer, for review and approval, all drafts of letters, notices, postcards, door hangers, signs, mailing lists, proposed addresses for hand-delivery, and any other notices and letters that are to be mailed and or distributed to the public.
Prior to distributing or mailing, the Contractor shall submit final drafts of letters, notices, postcards, door hangers, signs, and any other notices and letters to the Resident Engineer for final review and approval. Submit a PDF copy of the approved door hangers to the Engineer.
After distributing or mailing, the Contractor shall submit verification of delivery and any copies of returned notices to the Resident Engineer. Submit a PDF copy of the approved letters and notices to the Engineer.
The Contractor shall use its internal public contact tracking system to identify and summarize communications (via phone, in person, and email) with the public within 24 hours of receipt, even if the response to the individual is still incomplete. The Contractor shall upload to its internal public contact tracking system copies of all written, electronic, and verbal communications and conversations with the public.
5-10.4 Community Outreach Services.
5-10.4.1 Public Notice by Contractor.
Post Project Identification Signs in accordance with 3-
Notify businesses, institutions, property owners, residents or any other impacted stakeholders, within a minimum 300 feet (90 m) radius of the Project, of construction activities and utility service interruptions not less than 5 Working Days in advance.
occupants and/or property owners along streets:
ARTICLE 1 Where Work is to be performed at least Working 5 Working Days before starting construction or survey activities or impacting the community as approved by the Resident Engineer.
ARTICLE 2 Within 5 Working Days of the completion of your construction activities where Work was performed, you shall distribute public notices in the form of door hangers, which outlines the anticipated dates of Asphalt Resurfacing or Slurry Seal.
ARTICLE 3 No less than 48 hours in advance and no more than 72 hours in advance of the scheduled resurfacing.
ARTICLE 4 Leave the door hanger notices on or at the front door of each dwelling and apartment unit and at each tenant of commercial buildings abutting each of the street block segments. Where the front doors of apartment units are inaccessible, distribute the door hanger notices to the apartment manager or security officer.
Door Hanger Material: You shall use Blanks/USA brand, Item Number DHJ5B6WH, 1¼ inch (31.8 mm) Holes (removed), 2-up Jumbo Door Hanger in Bristol White, or approved equal.
Item 3A - Page 103
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 11, "PROJECT INFORMATION SIGNS".
Furnish and distribute public notices in the form of door hangers using the City's format to all
SPECIAL PROVISIONS - SECTION 5 - PAGE 22
Mailed Notice Material: You shall use Cougar by Domtar, Item Number 2834, or approved equal.
For all Work on private property, contact each owner and occupant individually a minimum of 15 Working Days prior to the Work. If the Work has been delayed, re-notify owners and occupants of the new Work schedule, as directed by the Resident Engineer.
5-10.4.2 Communications with the Public.
Coordinate access for vehicular and pedestrian traffic to businesses, institutions, and residences impacted by the Project.
You shall provide updates on construction impacts to the Resident Engineer.
You shall notify the Resident Engineer in advance about time-sensitive construction impacts and may be required to distribute construction impact notices to the public on short notice.
You shall incorporate community outreach activities related to construction impacts in the baseline schedule and update the Resident Engineer with each week's submittal of the Three-Week Look Ahead Schedule.
At the request of the Resident Engineer, you shall attend and participate in project briefings at community meetings.
You shall coordinate with the Resident Engineer on all responses and actions taken to address public inquiries and complaints within the 24 hours that they are received.
5-10.4.3 Communications with Media.
The City may allow members of the media access to its construction site(s) on a case-by-case basis only.
Occasionally, uninvited members of the media may show up at construction Sites. Members of the media (including, but not limited to newspapers, magazines, radios, television, bloggers, and
In the event that media representatives arrive near or on the construction Site(s), you shall keep them off the Site(s) in a courteous and professional manner until a Public Information Officer is available to meet them at an approved location.
You shall report all visits from members of the media to the Resident Engineer as quickly as possible construction Site(s).
If the City allows members of the media to access a construction Site, you shall allow the City to escort the media representatives while they are on the construction Site and shall ensure their safety.
You shall require media representatives to sign in and out of the Site Visitor Log and to use personal protective equipment.
Item 3A - Page 104
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 videographers) do not have the legal right to be in the construction Site without the City's permission. so that the City's Public Information Officer can meet with the members of the media at the
SPECIAL PROVISIONS - SECTION 5 - PAGE 23
You have a right to speak to members of the media about your company and its role on the project.
All other questions shall be referred to the City.
5-10.5 Exclusive Community Liaison Services.
When required in the Special Provisions, you shall retain an Exclusive Community Liaison for the Project whose sole responsibilities shall be to implement 5- and the following:
ARTICLE 1 Develop a contact list of community, tenants, property owners, and agencies with a stake in the project.
ARTICLE 2 Prepare and present of materials in coordination with the Resident Engineer.
ARTICLE 3 Respond to community questions and complaints related to your activities.
ARTICLE 4 Write, edit, update, or produce brochures, pamphlets, and news releases.
ARTICLE 5 Provide standard telephone inquiries and e-mail responses.
Respond to telephone calls and e-mails from the public.
Record calls and e-
tracking system.
ARTICLE 6 Provide a monthly summary report of all inquiries and complaints, including the name of the person, source of inquiry (via information line or email), phone number, address, date, and time of inquiry, who responded, and a summary of resolutions or pending resolutions to the Resident Engineer.
ARTICLE 7 Report Exclusive Community Liaison activities at all progress meetings scheduled by the Resident Engineer.
ARTICLE 8 Attendance at Pre-Construction, community and stakeholders meetings.
5-10.5.1 Exclusive Community Liaison Work Plan.
The Work plan for the Exclusive Community Liaison shall address the items of Work specified in these specifications. When required, present your Exclusive Community Liaison and submit your exclusive community outreach plan in writing within 15 Working Days of the award of the Contract.
5-10.5.2 Payment.
The payment for the community outreach services shall be included in the Contract Price.
When required, the payment for the exclusive community liaison services shall be included in the Bid
ADD: 5-11 NEWSLETTER.
If required in the Special Provisions, you shall provide the required information to create and distribute newsletters for a project including: a written update on the progress of Work, a 1 month look-ahead schedule, contact names and phone numbers, and any other information which may be of interest to the public for this purpose.
Item 3A - Page 105
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 •
•
10.4, "Community Outreach Services"
mails on to the Contractor's internal public contact
item for "Exclusive Community Liaison Services".
SPECIAL PROVISIONS - SECTION 5 - PAGE 24
5-11.1 Payment.
The payment for providing information for the newsletter and all associated Work shall be included in the Contract Price.
- END OF SECTION -
Item 3A - Page 106
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4
SPECIAL PROVISIONS - SECTION 6 - PAGE 1
SECTION 6 PROSECUTION AND PROGRESS OF THE WORK
6-1.1 Construction Schedule. ADD the following:
a) Upon the request of the Contractor, the City may delay the issuance of the Notice to Proceed (NTP) up to 10 Working Days from the date of the preconstruction conference. No time extension of this delay will be allowed.
b) The Contractor shall be responsible for developing, coordinating, revising, updating, and maintaining the cost loaded construction schedule (Schedule) utilizing the Critical Path Method (CPM).
c) All versions of the Schedule shall be based solely on the Work as awarded, and shall exclude any substitute proposals even if the Contractor pursues a substitution in accordance with provisions of the Contract.
d) The approved proposals and approved Change Orders shall be included in the Schedule updates.
e) Total float is the number of days by which a part of the Work in the Schedule may be delayed from its early dates without necessarily extending the Contract Time. The Contract float is the arly completion of the Work, or
specified part, and the corresponding Contract Time. Total float and Contract Time float belong to the Project and are not for the exclusive benefit of any Party. They shall be available to the City or the Contractor to accommodate changes in the Work or to mitigate the effect of events which may delay performance or completion.
f) Monthly progress payments are contingent upon the submittal of an updated Schedule to the Engineer. The City may refuse to recommend the whole or part of any monthly payment if, in he required Schedule
the Contract Time.
g) The Schedule shall show a breakdown of Work into activities and relationships to the extent required to effectively manage the Work. The Schedule shall show the division of the Work into activities and specify the progression from the Notice to Proceed (NTP) to the end of the Contract Time.
h) The Schedule shall include appropriate time allowances and constraints for submittals, items of interface with Work performed by others, and specified construction, start-up and performance tests.
i) The Contractor shall include in the Schedule inclusive in the Contract Time allotted, three 3 Working Days for the City to conduct a thorough walk-through.
j) The Contractor shall include in the Schedule inclusive in the Contract Time allotted 10 Working Days for generation of the punchlist. The Contractor shall Work diligently to complete all punchlist items within 20 Working Days after officially being provided the punchlist by the Engineer.
Item 3A - Page 107
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 number of days between the Contractor's anticipated date for e the Engineer 's opinion, the Contractor's failure, or refusal to provide t information precludes a proper evaluation of the Contractor's ability to complete Project within
SPECIAL PROVISIONS - SECTION 6 - PAGE 2
k) If the Contractor modifies or changes the Schedule, for Change Order Work or otherwise, the Engineer shall be notified in writing with an explanation.
l) Comments made by the Engineer on the Schedule during review will not relieve the Contractor from compliance with requirements of the Contract. The Engineer may request that the Contractor and major Subcontractors (defined herein as being any Subcontractor or Supplier with 5% or more of the value of the Contract) participate in review of any Schedule submission.
m) The Schedule shall show work to be done by the City personnel, such as but not limited to, submittal reviews (separate tasks for each), sewer televising, water main connections, water testing, and operational performance tests as separate tasks. The Schedule shall show appropriate time allowances for Work performed by other agencies.
n) If completion of any part of the Work, delivery of equipment or materials, or provision of the Contractor submittals is behind schedule and will impact the completion date of the Work, the Contractor shall submit a written recovery plan acceptable to the Engineer for completing the Work by the current Contract completion date.
o) The Contractor shall not be entitled to any extension in Contract Time, or recovery for any delay incurred because of extensions in an early completion date, until all Contract float is used, performance of the Work extends beyond the corresponding Contract Time, and a recovery plan is submitted demonstrating that the delay cannot be mitigated or offset through actions such as rescheduling Work.
p) Misrepresentation of actual Work durations in order to suppress available float time shall be cause for rejection of the Schedule and any revisions or updates.
q) The Schedule shall include procurement related activities which lead to the delivery of permanent materials to the Site in a timely manner. Procurement activities include activities such as preparation of Shop Drawings and Working Drawings, review and acceptance of Shop Drawings and Working Drawings, materials fabrication, materials delivery, etc., as appropriate.
r) The Schedule shall be reasonably balanced over the construction duration. Upon receipt, the Engineer will review the Schedule and provide comments, as appropriate, for revision by the Contractor.
s) Each Schedule activity shall be assigned a budget. Separate Bid items shall be separate activities. The Schedule shall specify costs for each phase of the Contract. The cost value of all Schedule activities shall equal the Contract values shown in the Bid both individually and in total and include Change Orders.
t) If the Engineer questions the logic of the Schedule, the Engineer may at any time request a Schedule narrative that describes the approach to the Work and the rationale used to develop the Schedule relationships and logic.
Item 3A - Page 108
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 The Schedule revisions shall be submitted within 10 Working Days after the Engineer's review.
SPECIAL PROVISIONS - SECTION 6 - PAGE 3
u) When specified in the Contract Documents, the 90-day Plant Establishment Period is included in the stipulated Contract Time and will begin with the acceptance of the planting in accordance with the Special Provisions.
v) For phased funded contracts, the Schedule shall include the Work to be completed as part of the first phase of the Phased Funding Schedule and all remaining phases.
w) With every pay request, submit the following:
ARTICLE 1 An updated cash flow forecast showing periodic and cumulative construction billing amounts for the duration of the Contract Time. If there has been any Extra Work since the last update, include only the approved amounts.
ARTICLE 2 A curve value percentage comparison between the Contract Price and the updated cash flow forecast for each Project ID included in the Contract Documents.
ARTICLE 3 Curve values shall be set on a scale from 0% to 100% in intervals of 5% of the Contract Time for contracts greater than $500,000 in value and 10% of the contract time for contracts less than or equal to $500,000 in value. Provide a Sample Invoice supported by this curve value percentage. For previous periods, use the actual values and percentages and update the curve value percentages accordingly.
ADD: 6-1.1.2 Contracts Less Than $500,000 In Value. The Contractor shall provide the Schedule to the Engineer at the preconstruction meeting. At a minimum, the Schedule shall conform to the following:
a) Provide a fully developed horizontal bar-chart type schedule.
b) Provide a separate time bar for each significant construction activity.
c) Provide a continuous vertical line to identify the first Working Day of each week.
d) Within each time bar, indicate estimated completion percentage in 10% increments. As Work progresses, place a contrasting mark in each bar to indicate actual completion.
e) Indicate graphically sequences necessary for completion of related portions of the Work.
f) Be of sufficient size to show data for the entire Contract Time.
ADD: 6-1.1.3 Contracts With More Than $500,000 In Value. The Contractor shall provide the Schedule to the Engineer no later than the date of the pre-construction meeting. The Contractor may provide a look-ahead schedule for the first 90 days of the Contract Time to the Engineer, prepared in accordance with 6-
-ahead schedule, the Schedule
covering the full Contract Time shall be submitted and approved within 4 weeks after NTP.
Item 3A - Page 109
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 demonstrating the curve value for Engineer's approval. Your invoice amounts shall be 1, "CONSTRUCTION SCHEDULE AND COMMENCEMENT OF
THE WORK." If the Contractor selects to provide a 90 days look
SPECIAL PROVISIONS - SECTION 6 - PAGE 4
The Contractor shall use any scheduling product capable of producing the required information in accordance with 6-
for the computerized CPM scheduling and monthly update reports. Electronic file submittals shall be compatible with formats used by the City.
In addition to the electronic submittal of the Schedule, the Contractor shall provide hard copy tabular reports in accordance with 3-
information:
a)
phone number, dates of original schedule and latest revision, revision number, and Contract Time.
b) The Schedule shall be of sufficient detail to assure adequate planning has been done for proper execution of the Work such that, in the sole judgment of the Engineer, it provides an appropriate basis for monitoring progress.
c) The Schedule shall show the sequence, duration, both early and actual start and end dates of each activity, interdependence, critical path and percentage of completion status of all activities required for the complete performance of Work. It shall begin with the date of issuance of the NTP and include construction activities including submittal review, operation checks, final walk- through, and punchlist generation.
d) The Schedule shall include the cost associated with each activity and the total cost for each phase of the Contract. The cost information shown in the Schedule will be used for schedule evaluation and budgetary forecasting purposes only, and shall not be construed as entitlement for payment.
e) The graphical reports when specified or required by the Engineer shall be in a precedence diagram format, shall be plotted on a time-scaled calendar, and shall expressly identify the Contract Time, the critical path(s) and activities.
f) Activities shall be shown on their early dates, with their total float noted beside them.
Connections between activities whether on the same sheet or on different sheets, shall identify both predecessor and successor Work. Activity data shall include description of Work, activity costs (budget), activity duration and special codes.
g) Activity data shall include description of the Work, activity duration, percent completed, and any special codes required with the following information:
i. Current status of the activity.
ii. Remaining duration of the activity.
iii. Actual start and finish dates for the activity in progress or completed.
h) The Schedule updates shall include both forecast and actual cost and schedule data.
i) The sub-tasks for lump sum Bid items shown on the Schedule shall be submitted in accordance with 7-
Item 3A - Page 110
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 1, "CONSTRUCTION SCHEDULE AND COMMENCEMENT OF THE WORK", 8, "Submittals." The Schedule shall contain as a minimum the following The Schedule shall include the Project Name, City's Project identification numbers, the Contractor's name, address and
2, "LUMP SUM WORK."
SPECIAL PROVISIONS - SECTION 6 - PAGE 5
j) The Schedule shall indicate the estimated person days and material quantities for each construction activity.
k) For those activities started but not yet completed at the time of submittal, the updated Schedule shall reflect the percentage of costs remaining, as agreed between the Contractor and the Engineer, for an estimate of the remaining budget.
The payment for the Schedule shall be included in the Contract Price.
6-1.2 Commencement of Work. DELETE in its entirety and SUBSTITUTE with the following:
Unless specified otherwise, the Contractor shall start construction within 5 Working Days after NTP and shall diligently prosecute the Work to completion within the Contract Time. Do not start any construction activities at the Site until the Pre-Construction meeting is held and until the NTP has been issued by the Engineer.
in the following:
ARTICLE 1Up to 5 Working Days from the Pre-construction meeting.
ARTICLE 2Up to 40 Working Days from the LNTP for the preparation, submittal, obtaining approval for and filing of the Permit Registration Documents (PRDs) as may be required pursuant to Section 3-
ARTICLE 3Up to 60 Working Days from the LNTP for the preparation, submittal, and approval of the engineered Traffic Control Plan (TCP) when required by the Engineer.
For areas that do not require engineered TCP on D-sheets, the Contractor may at any time after the Pre-
process and start the Work. If the Contractor decides to commence the construction Work before the completion of the D-sheet TCPs, you shall forfeit the 60 Working Days specified here. The D-sheet TCP shall be done concurrently and no additional time shall be granted.
For paving Work, coordinate the Work to facilitate the installation and protection of the new curb ramps and associated concrete Work prior to commencing the asphalt overlay operations. Do not start the Work at a specific location until all layouts and measurements are agreed upon by the Contractor and the Engineer.
ADD: 6-1.2.1 Construction Phasing.
When project phasing is provided in the Special Provisions do not proceed to the next phase unless the Engineer has accepted the preceding phase.
For mainline projects, use of multiple mainline crews shall require prior approval from the Engineer.
ADD: 6-1.3 Work Outside Normal Hours. Except in connection with the safety or protection of persons or the Work or property at the Site or adjacent thereto, and except as otherwise indicated in the Contract Documents, Work at the Site shall be performed during normal working hours. Normal working hours refers to the working hours identified in the Contract Documents. The Contractor shall not work during non-normal working hours or on Saturday, Sunday, or any of the City observed Item 3A - Page 111
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 Upon the Contractor's written request, the Engineer may delay the issuance of the NTP as described
12.6 'Water Pollution Control."
construction meeting obtain a TCP Permit via Working Drawings or the City's over the counter
SPECIAL PROVISIONS - SECTION 6 - PAGE 6
ritten consent. If approved, night work shall be completed at night between the hours of 7:00 P.M. - 5:00 A.M. unless otherwise specified on the Plans, in the Special Provisions, or on the traffic control permits.
The Engineer will coordinate inspection staff, to the extent possible, to accommodate Project for reimbursing the City for all costs to provide inspection services required to monitor the Work outside of normal working hours in accordance with Section 3-5. The Contractor shall be billed at the Change Order will be issued.
The Contractor shall be required to obtain a noise abatement permit when such a permit is required to perform Work outside the normal working hours.
Special Note: The Contractor will be required to comply with applicable mitigation measures related to noise that may be included in t
occurring outside normal hours that may generate noise will be required to mitigate the noise to the
The Engineer retains the sole authority to deny any work occurring outside normal hours if in his determination such work would generate noise too disruptive to the public.
6-1.4.2 Pre-Award Schedule. The Pre-Award Schedule is a cost-loaded CPM schedule prepared in accordance with 6-
showing all activities with costs, durations, and dependencies, for the first phase of the contract. The Pre-Award Schedule shall be used as a basis for the first Phased Funding Schedule Agreement which will be developed by the City.
Upon receipt, the Project Manager will review the Pre-Award Schedule and provide comments, as appropriate, for revision by the Contractor. The Project Manager may require backup documentation and calculations to justify schedules.
ADD: 6-1.5 Excusable Delays.
If a delay in the Work occurs and affects Work activities, delays may either be Excusable Compensable Delays or Excusable Non-Compensable Delays.
ADD: 6-1.5.1 Excusable Compensable Delays.
If an Excusable Delay meets the requirements of 6-
circumstances shall be compensable:
A. inability to make available any portion of the entire Site in accordance with the requirements of the Schedule.
B.
code changes, permits or approvals from any governmental authority, except to the extent due to your fault or neglect as determined by the Engineer.
Item 3A - Page 112
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 holiday without the Engineer's w
inspection requirements. If the Contractor's request is approved, the Contractor will be responsible stipulated hourly rate to cover the City's expenses for the inspection services and a deductive he City's CEQA and/or NEPA environmental document. Any work greatest degree possible at the Contractor's expense, as required by the Engineer. 1, "CONSTRUCTION SCHEDULE AND COMMENCEMENT OF THE WORK" The Contractor shall coordinate the estimated construction start date with the City's Project Manager.
4.2, "Extensions of Time", the following
The City's failure or
The City's failure or inability to obtain necessary zoning changes, variances,
SPECIAL PROVISIONS - SECTION 6 - PAGE 7
C. Delays resulting from the acts or omissions of Separate Contractors, except to the extent Separate Contractors perform their work properly and in accordance with the Schedule.
D. Differing or concealed site conditions that could not have been reasonably anticipated at the time of Bid.
E. Delays resulting from the existence or discovery of hazardous materials or waste on the Site not brought in by you and not included in the Contract.
F. Delays resulting from any changes made to any City of Palm Springs Municipal Code after the date of execution of the Contract.
G.
H. Delays requested by the City.
ADD: 6-1.5.2 Excusable Non-Compensable Delays.
The City shall only issue an extension of time for Excusable Delays that meet the requirements of 6-
A. Delays resulting from Force Majeure.
B. Delays caused by weather.
C. Delays caused by changes to County, State, or Federal law.
ADD: 6-1.6 Pre-construction Meeting.
Within 20 Working Days from the LNTP the Engineer shall schedule a mandatory Pre-construction meeting with you. The agenda shall include items such as NTP, design services and submittal and review process, critical elements of the Work schedule, submittal schedule, cost breakdown of major lump sum items, payment requests and processing, environmental and community concerns, coordination with the involved utility firms, the level of record project documents required, and emergency telephone numbers for all representatives involved in the course of construction.
ADD: 6-2.1 Moratoriums.
When moratorium periods are specified in the Special Provisions, the Contractor shall stop work and completely demobilize all construction related activity, equipment, and materials within the stated limits prior to the beginning of the moratorium periods at no additional cost to the City. Complete any Work that has been started prior to the start of the moratorium.
The Contractor shall restore and clean the site prior to each moratorium. Do not leave equipment, materials, or traffic control on the Site during the moratorium periods. Cover trenches during moratorium periods. Do not use temporary resurfacing.
6-2.1.1 Payment.
The payment for complying with moratorium requirements shall be included in the Contract Price.
The Contractor shall not be entitled to any additional costs for repeated mobilization and demobilization to continue the Work after the moratorium periods.
Item 3A - Page 113
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 Delays due to the City's acts or omissions and those within the City's control.
4.2, "Extensions of Time" for the following circumstances:
SPECIAL PROVISIONS - SECTION 6 - PAGE 8
6-3 TIME OF COMPLETION.
6-3.1 General. DELETE in its entirety and SUBSTITUTE the following:
Particular attention is directed to the provisions of Section 6- Commencement - -
After the Contract has been approved by the City, and a written Notice to Proceed has been issued to the Contractor, the Contractor shall start the Work within 5 working days after the date specified in said Notice to Proceed.
Said Work shall be diligently prosecuted to completion before the expiration of:
18 months
from the date specified in the Notice to Proceed issued by the City.
Said time of completion does not include time associated with ordering long lead-time items.
Contractor shall refer to Section 4-9 of these Special Provisions for requirements associated with ordering long lead-time items.
In accordance with Section 6-
Contractor shall pay to the City as liquidated damages the sum set forth in the Agreement per day days prescribed above.
The following shall be included in the stipulated Contract Time: Any number of Working Days required for walk through and preparation and completion of Punchlist items specified in 6-1,
If the Contract Documents require the Contractor to prepare engineered Traffic Control Plans (TCP) prior to the issuance of the NTP, the Contractor is entitled to an additional 20 Working Days to prepare and obtain approval of the TCP. These 20 Working Days include time for preparation of the the Engineer at the Pre-Construction meeting. In no event shall the NTP be issued more than 20 Working Days from the Pre-Construction meeting.
The Contractor may choose at any time after the Pre-
approval to start Work in other areas that do not require engineered TCP. In this case, the Contractor shall forfeit the 20 Working Days to prepare the engineered TCP, and the NTP will be issued. The engineered TCP shall be done concurrently and no additional time will be granted.
6-3.2 Contract Time Accounting. After the second sentence ADD the following:
Item 3A - Page 114
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 1, "Construction Schedule and
of Work," Section 6 3, "Time of Completion," and Section 6 9, "Liquidated Damages" of the Standard Specifications.
9, "Liquidated Damages," and as set forth in the Agreement, the for each and every calendar day's delay in finishing the Work in excess of the number of working "Construction Schedule and Commencement of the Work."
TCP and the City's review. If the Contractor chooses to exercise this right, the Contractor shall inform Construction meeting to request the Engineer's
The Engineer's periodic report for Contract Time accounting will be issued at least once a month.
SPECIAL PROVISIONS - SECTION 6 - PAGE 9
ADD: 6-3.3 Working Days.
A working day is any day within the period between the date of the start of the Contract time as specified in Section 6-1 and the date of field acceptance of the Work by the Engineer, other than:
1. Saturday,
2. Sunday,
3. Any day designated as a holiday by the City,
4. Any other day designated as a holiday in a Master Labor Agreement entered into by the Contractor or on behalf of the Contractor as an eligible member of a contractor association,
5. Any day the Contractor is prevented from working at the beginning of the workday for cause as specified in Section 6-4, or
6. Any day the Contractor is prevented from working during the first 5 hours with at least 60 percent of the normal work force for cause as specified in Section 6-4.
6-4 DELAYS AND EXTENSIONS OF TIME.
6-4.1 General. ADD the following:
Whenever the Contractor foresees any delay in the prosecution of the Work, and in any event immediately upon the occurrence of any delay which the Contractor regards as unavoidable, the Contractor shall notify the Engineer, in writing, of the probability of the occurrence of such delay and its cause.
It will be assumed that any and all delays which have occurred in the prosecution and completion of the work have been avoidable delays, except such delays as shall have been called to the attention of the Engineer at the time of their occurrence and found by him to have been unavoidable.
The Contractor shall make no claims that any delay not called to the attention of the Engineer at the time of its occurrence has been an unavoidable delay.
The Engineer shall only grant an extension of time if the Extra Work or unforeseen condition impacts unforeseen event shall be demonstrated by using the Critical Path Method (CPM). No other scheduling method shall be use
6-4.2. Extensions of Time. DELETE in its entirety and SUBSTITUTE with the following:
The Contract Time shall not be modified except by Change Order.
The Contractor shall immediately submit to the City a written request for a Change Order to modify the Contract Time, but in no event later than five Working Days after the occurrence and discovery of the event(s) giving rise to the request. The Contractor shall include in its request a general description of the basis for and the estimated length of any extension and submit supporting data. statement that the Contract Time extension reflects the entire extension to which the Contractor is entitled as a result of the occurrence of the event(s).
The Engineer shall not grant an extension in Contract Time unless the Contractor demonstrates through an analysis of the critical path, the following:
Item 3A - Page 115
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 the Project's critical path. All requests for an extension in Contract Time for any Extra Work or d to calculate the Project's schedule.
Any City approval of a request shall be contingent upon the Contractor's submission of a written
SPECIAL PROVISIONS - SECTION 6 - PAGE 10
ARTICLE 1 The event causing the delay
path.
ARTICLE 2 The increases in the time to perform all or part of the Project beyond the ce and that all project float has been used.
The Engineer shall issue a weekly document that shall stipulate the Contract Time. If the Contractor does not agree with this document, submit to the Engineer for review a written protest supporting the objecti
tension and shall be subject to 2-10.1,
6-4.4 Written Notice and Report. DELETE in its entirety and SUBSTITUTE with the following:
five
Working Days will be considered grounds for refusal by the City to consider such request.
6-6.1 General. ADD the following:
The City reserves the right to shut down any trenching operation if the Contractor is not proceeding within a reasonable period of time to restore the pavement and Site cleanup. A reasonable period of time is considered to be 5 to 10 Working Days after backfilling any one block, approximately 600 feet of pipeline. The Engineer shall determine the period of time allowed which shall not be subject to dispute.
During periods when the Work is suspended, the Contractor shall be prepared for any emergency Work that shall be supervised by your representative.
6-7.1 General. ADD the following:
g) The Contractor fails to notify the Engineer upon discovery of items of Native American, Archaeological, or Paleontological interests.
Notices, and other written communications regarding default between the Contractor, the City, and the Surety shall be transmitted in accordance with 5-
.
6-7.3: Notice of Termination for Default: ADD the following:
The Contractor shall be entitled to no further payment until the remaining portion of the Work has been completed. The Contractor will be paid the actual amount due based on Contract Unit Prices or lump sum Bid and the quantity of the Work completed at the time of default, less damages caused to the City by acts of the Contractor.
Item 3A - Page 116
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 impacted the activities along the Project's critical
Contract Time arose from unforeseeable causes beyond the Contractor's control and without Contractor's fault or negligen
ons to the document within 15 Working Days after receipt of the statement. The Contractor's failure to file a timely protest shall constitute its acceptance of the Engineer's weekly document.
The Contractor's protest will be considered a claim for time ex "Claims".
The Contractor's failure to file with the Engineer a written request and report of cause within 2, "SPECIAL NOTICES"
SPECIAL PROVISIONS - SECTION 6 - PAGE 11
for overhead, shall be deducted from any money due or to become due to the Contractor. The Contractor shall pay to the City any amount by which those costs and markup exceed the unpaid balance of the Contract Price.
6-8 TERMINATION OF THE CONTRACT FOR CONVENIENCE. DELETE in its entirety and SUBSTITUTE with the following:
At any time, the City may at its sole discretion terminate this Contract in whole or in part. If the City decides to terminate this Contract for convenience, the City shall issue a written notice of termination for convenience in accordance with 5-
immediately proceed as follows:
a) Stop Work immediately or in accordance with the Notice of Termination.
b) Immediately place no further subcontracts for materials, services, or facilities, except as necessary to complete any authorized continued portion of the Contract.
c) Immediately terminate all subcontracts to the extent that they relate to the Work terminated;
d) With approval by the Engineer, settle all outstanding obligations arising from the termination of subcontracts; the approval of which will be final for purposes of this section.
e) As directed by the Engineer, transfer the title and deliver to the City, completed or partially completed drawings, plans, calculations, specifications and any other documents and records that, if the Contract had been completed, would be required to be furnished to the City.
f) Complete performance of the Work not terminated.
g) Take all necessary steps and actions to minimize all costs to the City as a result of the termination.
h) Take any action that may be necessary, or that the Engineer may direct, for the protection and preservation of the property related to this contract that is in the possession of the Contractor and in which the City has or may acquire an interest.
6-8.1 Termination Cost.
termination cost as follows:
The Contract Price for completed services accepted by the Engineer not previously paid or adjusted for any saving of freight and other charges.
The fair and reasonable cost of settling and paying termination settlements for terminated subcontracts that are chargeable to the terminated portion of the Contract.
The City shall pay the Contractor a prorated amount of profit on the Contract for the amount of Work that was performed. The City shall not pay for lost profit on Work that was not performed.
Item 3A - Page 117
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 Costs incurred by the City in performing the Contractor's work, plus a markup of 15% on those costs 2, "SPECIAL NOTICES". Upon receipt of this notice, you shall The City shall determine and pay you the fair and reasonable amounts for the Contractor's •
•
•
SPECIAL PROVISIONS - SECTION 6 - PAGE 12
6-8.2 Termination Settlement.
After termination, the Contractor shall submit a final termination settlement proposal to the Engineer no later than 3 months from the effective date of termination, unless extended in writing by the Engineer.
If the Contractor fails to submit the proposal within the time allowed, the City may determine and pay the fair and reasonable amount that may be due as a result of the termination. If the Contractor does not agree that the amount determined by the Engineer is fair and reasonable, notify the Engineer within 30 Calendar Days of receipt of payment.
6-8.3 Determination of Amount Due the Contractor.
In determining the amount due to the Contractor, the City shall deduct the following:
The fair value of property destroyed, lost, stolen, or damaged that has become undeliverable to the City.
Any claim which the City has against the Contractor under the Contract.
6-8.4 Records and Documents Relating to Termination.
Unless otherwise specified or by statute, the Contractor shall maintain all records and documents relating to the terminated portion of the Contract for 3 years after final settlement. This includes all books and other evidence bearing on its costs, expenses, and settlement under the Contract. The Contractor shall make these records and documents available to the City, at its office, at all reasonable times, without any direct charge. If approved by the Engineer, the Contractor may maintain photographs, microphotographs, and other authentic reproductions instead of original records and documents.
6-
The City may terminate or suspend the Contract at its sole discretion if funds being used to fund this Project become unavailable. If the City chooses to suspend the Contract, that suspension shall last until funds are identified and approved by the City Council to be used to complete this project. If the City elects under this provision to terminate the Contract, then neither Party is entitled to compensation from the other Party for any costs arising from such termination. The City may also elect to terminate after invoking a suspension under this provision.
6-9 LIQUIDATED DAMAGES. DELETE in its entirety and SUBSTITUTE with the following:
6-9.1 General
The
sustained by the City. Such damages are, and shall continue to be, impracticable and extremely difficult to determine. For each consecutive Working Day (or Calendar Day if so specified) in excess of the time specified for the completion of the Work, as adjusted in accordance with 6- due it, the sum described in the table below, unless otherwise specified in the Special Provisions.
Item 3A - Page 118
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 •
•
8.5 The City's Right to Terminate or Suspend for Loss of Project Funds.
Contractor's failure to complete the Work within the time allowed shall result in damages being 4, "DELAYS
AND EXTENSIONS OF TIME", the Contractor shall pay to the City, or have withheld from monies
SPECIAL PROVISIONS - SECTION 6 - PAGE 13
The execution of the Contract shall constitute agreement between the Contractor and the City that the liquidated damage amount described in the table below is the value of the damage caused by
Liquidated damages, if any, accrue starting on the 1st day after the expiration of the Working Days (or Calendar Days if so specified) through the day of Contract acceptance except as specified in Sections 6-9.2 and 6-9.3.
The City shall withhold liquidated damages before the accrual date if the anticipated liquidated damages may exceed the value of the remaining work. Liquidated damages for all work except plant establishment are as shown in the following table:
Liquidated Damages
(a) Total bid (b) Liquidated
damages per day
(c) From over (d) To
(e) $0 (f) $50,000 (g) $1,200
(h) $50,000 (i) $120,000 (j) $1,500
(k) $120,000 (l) $1,000,000 (m) $1,900
(n) $1,000,000 (o) $5,000,000 (p) $3,000
(q) $5,000,000 (r) $10,000,000 (s) $5,400
If all work except plant establishment is complete and the total number of working days have expired, liquidated damages are $950 per day.
6-9.2 Failure to Complete Work Parts within Specified Times. The Engineer may deduct specified damages from payments for each day in completing a work part beyond the time specified for completing the work part.
Damages for untimely completion of work parts may not be equal to the daily amount specified as liquidated damages for the project as a whole, but the Engineer does not simultaneously assess damages for untimely completion of work parts and for the whole work.
Damages accrue starting the 1st day after a work part exceeds the specified time through the day the specified work part is complete.
6-9.3 Failure to Complete Work Parts by Specified Dates
The Engineer may deduct specified damages from payments for each day in completing a work part beyond the specified completion date for the work part.
Damages for untimely work part completion may not be equal to the daily amount specified as liquidated damages for the project as a whole, but the Engineer does not simultaneously assess damages for untimely work part completion and the whole work.
Item 3A - Page 119
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 the Contractor's failure to complete the Work within the allotted time. Such sum shall not be construed as a penalty and may be deducted from the Contractor's payments if such delay occurs.
SPECIAL PROVISIONS - SECTION 6 - PAGE 14
Damages accrue starting the 1st day after an unmet completion date through the day the work part is complete.
ADD: 6-10 RIGHT TO AUDIT.
6-10.1 General.
The City retains the right to review, audit, reasonably access the Contractor and all its the Contract. This
includes the right to inspect, photocopy, and retain copies, outside of its premises, of any and all records with appropriate safeguards if such retention is deemed necessary by the City in its sole discretion. The City will keep this information in strictest confidence.
The Contractor shall include the right to audit in the subcontracts and ensure that these specifications are binding upon all Subcontractors.
6-10.2 Audit.
The right to audit includes the right to examine any and all books, records, documents, and any other evidence of procedures and practices that the City determines is necessary to discover and verify that the Contractor is in compliance with all requirements under the Contract.
If there is a claim for additional compensation or for changes in Work, the right to audit also includes the right to verify all direct and indirect costs which are claimed to have been incurred, anticipated to be incurred, or for which a claim for additional compensation or for changes in the Work have been submitted.
The Contractor shall maintain complete and accurate records in accordance with generally accepted accounting practices in the construction industry. Make available to the Engineer for review and audit all Project related accounting records and documents and any other financial data. Upon the request, you shall submit exact duplicates of originals of all requested records to the Engineer.
6-10.3 Compliance Required Before Mediation and Litigation.
As a condition precedent to proceeding with mandatory mediation and further litigation under 2-10.2, within 60 Days
of the to review and audit compliance. See 5-
6-10.4 Access to Records on Federally Funded Projects.
The Contractor shall retain all records, books, papers, and documents directly pertinent to the Contract for a minimum of 5 years after the City makes final payments and all other pending matters are closed and shall allow access to those records to the City, the Federal grantor agency, the Comptroller General of the United States, or any duly authorized representatives.
- END OF SECTION -
Item 3A - Page 120
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 Subcontractor's premises to review and audit compliance with the provisions of Engineer's
"Dispute Resolution Process" the Contractor shall comply with the audit specifications Engineer's notice 2, "SPECIAL NOTICES".
SPECIAL PROVISIONS - SECTION 7 - PAGE 1
SECTION 7 MEASUREMENT AND PAYMENT
ADD: 7-2.1 Schedule of Values (SOV). Within 10 days of execution of this contract, the Contractor Schedule of Values will:
a) Subdivide the Work into its respective parts,
b) Include values for all items comprising the Work, and
c) Serve as the basis for monthly progress payments made to the Contractor throughout the Work.
The Engineer is the sole judge of acceptable numbers, details, and description of values established.
If, in the opinion of the Engineer, a greater number of SOV items than proposed by you is necessary, add the additional items identified by the Engineer. When requested by the Engineer, provide substantiating data in support of the SOV.
Incorporate the SOV into the cost loading function of the Schedule in accordance with 6-1, payment amounts for Lump Sum items shall be determined from the monthly updates of the Schedule activities.
Develop the SOV independently but simultaneously with the development of the Schedule activities and logic. Incorporate phase funding impacts, if applicable, into the Schedule.
Break down the Work not specifically included in the Bid as necessary for establishment of cost and Schedule activity.
Following acceptance of the SOV, incorporate the changes (if any) into the cost loading portion of the Schedule. Where coordination of the Schedule and the SOV requires changes made to one or both documents, propose changes to the SOV and to the Schedule activities to satisfy the Schedule cost loading requirements.
Update and submit these listings in conjunction with the Schedule monthly submittals.
Incorporate issued Change Orders or Field Orders in the Schedule into the SOV as single units identified by the Change Order or Field Order number.
Changes to the Schedule which add activities not included in the original Schedule but included in the original Work (schedule omissions) shall have values assigned as accepted by the Engineer.
Other activity values shall be reduced to provide equal value adjustment increases for added activities as accepted by the Engineer.
In the event that you and the Engineer agree to make adjustments to the original SOV because of inequities discovered in the original accepted SOV, increases and equal decreases to values for activities may be made.
ADD: 7-2.2 Payment.
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DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 shall submit for the City's review and approval an SOV for the lump sum Bid items of the Work. The "CONSTRUCTION SCHEDULE AND COMMENCEMENT OF THE WORK". Monthly progress
SPECIAL PROVISIONS - SECTION 7 - PAGE 2
The payment for the preparation of the SOV shall be included in the Contract Price.
7-3.1 General. To paragraph (8), DELETE in its entirety and SUBSTITUTE with the following:
If, within the time fixed by law, a properly executed notice to stop payment is filed with the City, due labor
or materials will be withheld from payment in accordance with applicable laws. At the expiration of 35 Calendar Days from the date of filing the NOC and upon receipt by the Engineer of a fully executed Release of Claims, the amount deducted from the final estimate and retained by the City shall be paid to you except such amounts as are required by law to be withheld by properly executed and filed notices to stop payment.
ADD the following:
Unless specified otherwise, the Contract Price includes use, consumer, and other taxes mandated by applicable legal requirements.
As provided in §7105 of the California Public Contract Code, if the Contract is not financed by revenue bonds, you are not responsible for the cost of repairing or restoring damage to the Project when damage was proximately caused by an act of God, in excess of 5% of the Contract Price, if the following occur:
a) The Project damaged was built in accordance with the Contract requirements. b) There are no insurance requirements in the Contract for the damages.
7-3.2 Partial and Final Payment. To paragraph (5), DELETE in its entirety and SUBSTITUTE with the following:
Pursuant to California Public Contract Code §22300, the Contractor has the option, at its expense, to substitute for any money withheld by the City, securities equivalent to the amount being withheld.
Securities eligible for such substitution are bank or savings and loans certificates of deposit or such securities which are eligible for investment pursuant to Government Code §16430. As to any such security or securities so substituted for monies withheld, the Contractor shall be the beneficial owner of same and shall receive any accrued interest. Such security shall, at its request and expense, be deposited with the City or with a State or Federally Chartered bank as the escrow agent who shall pay such monies to the Contractor upon notification by the Engineer that payment can be made.
Such notification shall be given at the expiration of 35 Calendar Days from the date of Acceptance, or as prescribed by law, provided however, that there shall be a continued retention of the necessary securities to cover such amounts as are required by law to be withheld by properly executed and filed notices to stop payment, or as may be authorized by the Contract to be further retained.
ADD the following:
Final Payment and release of Retention shall be paid after you submit the following:
An affidavit that payrolls and bills for materials, equipment, and other indebtedness connected with the
for or encumbered by. Fewer amounts withheld by the City shall have been paid for or otherwise satisfied.
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DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 to the Contractor's failure to pay for labor or materials used in the Work, all money due for such •
Work for which the City or the City's property might be responsible
SPECIAL PROVISIONS - SECTION 7 - PAGE 3
A certificate evidencing that insurances required by the Contract Documents shall remain in force after Final Payment is currently in effect and shall not be canceled or allowed to expire until at least a 30 Calendar Days prior written notice has been given to the Engineer.
Consent of Surety to Final Payment.
If required by the Engineer, other data establishing payment or satisfaction of obligations such as receipts, releases and waivers of liens, claims, and security interests or encumbrances arising out of the Contract Documents. If a Subcontractor refuses to furnish a release or waiver required by the City, you may furnish a bond satisfactory to the Engineer to indemnify the City against such lien.
If required in the Contract Documents, the successful completion and submittal of the required reports such as construction demolition, waste recycling, and hydrostatic discharge reports.
Required EOCP documentation, record drawings, operations manuals, test reports, warranty documentation, and UL labels shall be submitted before requesting the release of retention.
ADD: 7-3.2.1 Application for Progress Payment.
By the tenth day of each month, the Contractor shall submit to the Engineer a partial payment estimate, filled out and signed by the Contractor, that identifies acceptable Work performed during the previous month, or since the last partial payment estimate was submitted. If requested by the Engineer, the Contractor shall provide such additional data as may be required to support the payment estimate. Such data may include satisfactory evidence of payment for equipment, materials, and labor, including payments to Subcontractors and suppliers.
For application for progress payment, the Contractor shall use the format required by the City. An electronic copy of the invoice form is available from the Engineer upon request. Progress payments shall be signed and the date of the invoice shall be the date that the invoice is submitted.
Progress or partial payments shall not be made until the Contractor submits to the City an updated ly the responsibility of the Contractor to prepare
and submit the Schedule updates.
The City shall pay you within 30 Calendar Days after the presentation of undisputed and properly submitted applications for payment.
Disputed or incorrect applications shall be returned to you within 7 Calendar Days with documentation describing the reason for the rejection of the payment request.
ADD: 7-3.2.2 Amount of Progress Payments. Provided an undisputed and properly submitted Application for Payment is received by the City, payment shall be made by the City not later than thirtieth day after the City receives the application for Payment. The City will pay the Contractor for Work performed through the period covered by the application for Payment, less Retention as set forth in the Contract Documents, provided that the payment amount before Retention will not exceed the percentage of completion of the Work, all as set forth in the SOV.
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DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 •
•
•
•
•
Schedule that meets the City's requirements. It is sole
SPECIAL PROVISIONS - SECTION 7 - PAGE 4
ADD: 7-3.2.3 Waiver of Claims at Final Payment. Acceptance of Final Payment by the Contractor shall constitute a waiver of affirmative Claims by the Contractor, except those previously made in writing and identified as unsettled at the time of Final Payment, which are expressly reserved by the Contractor from operation of its Release of Claims pursuant to Public Contract Code 7100 or other Applicable Laws.
ADD: 7-3.2.4 Withholding of Payment and Backcharge.
The Engineer may withhold payment for any of the following reasons:
Defective or incomplete Work.
Stop notices, wage orders, or other withholdings required by Applicable Law.
Your failure to comply with 5-
Electronic Reporting System requirements of the Contract Documents.
The Engineer may back charge the contract for any of the following reasons:
Defective or incorrect Work not remedied.
Liquidated damages.
In addition to withholding 125% of the total of any stop payment notice received, the City shall also apply an administrative fee of $500 for each valid stop payment notice filed against the Contractor for failure to pay subcontractors, material suppliers or other legally vested parties. Such administrative fee shall be applied as a back-charge to the City for each and every valid stop notice filed, and shall be noted on a Change Order adjusting the final contract payment otherwise due to the Contractor.
When all the above reasons for withholding payment are removed, payment shall be made for amounts previously withheld. Prior to any withholding pursuant to this section, the City will meet with the Contractor to discuss potential withholding, and attempt in good faith to resolve such issue without the need for withholding.
ADD: 7-3.2.5 Early Release of Subcontractor Retention. If a Subcontractor has completed its portion of the Work, including all Punch List items, pursuant to any given Subcontract, the Contractor may request the City to disburse the Retention allocable to such Subcontractor, after delivering to the City acceptable releases from the Subcontractor and consent to such disbursement from such ion, may
distribution to the Subcontractor. Regardless of whether the City has disbursed Retention for the benefit of any Subcontractor, the 1 year warranty period with respect to such Work shall commence at upon the filing of the NOC.
ADD: 7-3.2.6 Final Pay Items. dule,
the Contractor shall accept payment based on the Bid Item as a final unadjusted quantity, regardless of the actual final quantity used or otherwise required for that item, unless the dimensions of the work are changed by the Engineer. The Contractor is required to confirm the measurement of any final pay item at the time of bidding, and to incorporate in its bid item price the total cost of the work Item 3A - Page 124
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3.3, "Payroll Records" and the Contractor Registration and Damage to City property or a third party's property that was caused by you.
Contractor's Surety, in a form reasonably satisfactory to the City. The City, at its sole discret determine that the Subcontractor's Work has been completed in accordance with the Contract Documents, and may disburse the Subcontractor's share of Retention to the Contractor for For bid items noted as a final pay item, "(F)", on the Bid Sche associated with the final pay item, reflective of the Contractor's independent measurement and the
SPECIAL PROVISIONS - SECTION 7 - PAGE 5
quantity noted in the Bid Schedule. No additional payment will be allowed for final pay items in the event the quantity identified in the Bid Schedule is less than the quantity actually required to complete the work as identified in the project drawings.
7-3.3 Delivered Materials. DELETE and SUBSTITUTE with the following:
The City will not pay the Contractor for the cost of materials and equipment delivered but not incorporated into the Work.
7-3.4 Mobilization: ADD the following:
Mobilization shall consist of labor and operations, including, but not limited to, those necessary for the movement of personnel, equipment, supplies, and incidentals to and from the Site; for establishment of all offices, buildings, storage yards, and other facilities necessary for Work, and for all other work and operations which shall be performed prior to beginning Work, and shall consist of all demobilization efforts required after completion of Work on the various Contract items on the Site.
The Contractor shall properly design the Project parameters to incorporate construction mobility for moving on and off the Site in a manner that limits disturbance to the surrounding residences, businesses, and any other citizens. Specifically, this includes, but is not limited to, the designated staging areas, loading areas, and assemblage areas. The Contractor shall consider and address
equipment, materials, construction wastes, and personnel at the Site referred to as demobilization shall be included in mobilization.
ADD 7-3.4.1 Payment.
item but shall not exceed 3% of the Contract Price. If
the Contract Price, then anything above 3% of the Contract Price shall be paid as a part of the Final Payment.
The complete dismantling and removal of all of your properties, temporary facilities, equipment, materials, construction wastes, and personnel at the Site referred to as demobilization is included in the payment for mobilization.
If a separate Bid item has not been provided for mobilization, the payment for mobilization is included in the Contract Price.
7-3.5.2 Increases of More Than 25 Percent: DELETE in its entirety and SUBSTITUTE with the following:
Should the actual quantity of an item of work covered by a Contract Unit Price and constructed in conformance with the Plans and Specifications exceed the Bid quantity by more than 25 percent, payment for the quantity in excess of 125 percent of the Bid quantity shall be made on the basis of an adjustment in the Contract Unit Price as follows:
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DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 access rights of the public at all times. The Contractor shall be required to prepare a "Mobilization Plan" that will describe and govern the Contractor's mobilization activities.
The complete dismantling and removal by the Contractor of all of the Contractor's temporary facilities, When a Bid item has been provided for "Mobilization", payment for mobilization Work shall be distributed equally over the first 2 progress payments up to the bid amount of the "Mobilization" Bid the Bid item for "Mobilization" exceeds 3% of
SPECIAL PROVISIONS - SECTION 7 - PAGE 6
Quantity of Work Performed Contract Unit Price Adjustment Up to and including 125% No Adjustment
125.01% through 150% - 5% Reduction
150.01% through 200% - 10% Reduction
Over 200% - 10% Reduction or by Mutual Agreement
Payment for the quantity in excess of 200 percent of the Bid quantity shall be made on the basis of at least a 10% reduction in the Contract Unit Price, or at the option of the Engineer on the basis of Extra Work. The Extra Work basis of payment shall not include fixed costs. Fixed costs shall be deemed to have been recovered by the Contractor through payment for 125 percent of the Bid Quantity at the Contract Unit Price.
7-3.5.3 Decreases of More Than 25 Percent: DELETE in its entirety and SUBSTITUTE with the following:
Should the actual quantity of an item of work covered by a Contract Unit Price and constructed in conformance with the Plans and Specifications be less than 75 percent of the Bid quantity, an adjustment in payment will not be made unless so requested in writing by the Contractor. If the Contractor so requests, payment for the quantity less than 75 percent of the Bid quantity will be made on the basis of an adjustment in the Contract Unit Price as follows:
Quantity of Work Performed Contract Unit Price Adjustment Up to and including 75% No Adjustment
50% through 74.99% + 5% Increase
25% through 49.99% + 10% Increase
Less Than 25% + 10% Increase or by Mutual Agreement
Payment for the quantity less than 25 percent of the Bid quantity will be made on the basis of a maximum of a 10% increase in the Contract Unit Price, or at the option of the Engineer on the basis of Extra Work; however, in no case will payment be less than would be made for the actual quantity at the Contract Unit Price, nor more than would be made for 75 percent of the Bid quantity at the Contract Unit Price.
7-3.6 Stipulated Unit Prices: DELETE in its entirety and SUBSTITUTE with the following:
At the option of the Engineer, and with agreement by the Contractor, payment for additional work not covered by a Contract Unit Price and not identified in the Plans and Specifications, may be made by Stipulated Unit Prices in lieu of Section 2-
shall have a direct comparison to similar work covered by a Contract Unit Price and constructed in conformance with the Plans and Specifications.
ADD: 7-3.9 Field Orders. The Bid Schedule(s) may include an allowance for Field Orders identified A Field Order is a written order by the Engineer to
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DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 8 "Extra Work." Stipulated Unit Prices for additional work with a bid item described as "Field Orders."
SPECIAL PROVISIONS - SECTION 7 - PAGE 7
compensate the Contractor for items of work in accordance with 2- -9, Time or the intent of the Contract.
Field Order items of work may be paid for in accordance with this section provided that the cumulative
Construction Contract Price Max. Amount for Each Field Order Less than $100,001 $2,500
$750,001 to $500,000 $5,000
$500,001 to $1,000,000 $10,000
Greater than $1,000 $25,000
ADD: 7-3.10 Phased Funding Compensation.
For phased funded contracts in accordance with 6-
Total compensation to be paid to the Contractor for the Work performed under each phase of the Contract may not exceed the amount specified for each phase in the final Phased Funding Schedule Agreement unless specified otherwise by a Change Order.
Identify the Work to be performed as part of the first phase in the Pre-Award Schedule. The Work elements to be completed as part of each phase shall be functional and complete for the intended purpose in the event the subsequent phases are not authorized by the City.
The subsequent phases to the first phase are subject to funding availability by the City. Do not start subsequent phases without prior written authorization from the Engineer.
Fund availability for the performance of Work is described in the first, subsequent, and final Phased Funding Schedule Agreements. The amount of funds available at award shall be sufficient for the performance of the first phase only. When additional funds are available for the full requirements of the next funding phase, the Engineer shall notify the Contractor. The City may modify the amount of funds as available for Contract performance in subsequent and final Phase Funding Schedule Agreements via Change Order.
The City is not obligated to provide the Contractor any amount over what has been specified in the first, subsequent, or final Phased Funding Schedule Agreements for Contract performance and as authorized by the City Council.
The Contractor is not obligated to incur costs for the performance of the Work for any funding phase after the first funding phase until written notification is received from the Engineer of only to the extent the Contract performance is required for the additional funding phase for which funds are made available.
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"CHANGED CONDITIONS." A Field Order does not involve change in the Contract Price or Contract total of Field Orders does not exceed the allowance identified in the "Field Order'' Bid Item.
1.4, "Phased Funding":
an increase in the availability of funds. If notified, the Contractor's obligation shall increase
SPECIAL PROVISIONS - SECTION 7 - PAGE 8
If the Contract is terminated in accordance with 6-
procedures established in that section for Work under specific funding phases for which under the Contract shall apply to the entire multi-phase requirements.
A notification to the Contractor of an increase or decrease in the funds available for the
7-4.1 General. ADD the following:
With every request for payment, submit to the Engineer a breakdown showing monthly and cumulative amounts of the Work performed under the Change Order by the Contractor and its Subcontractors. The reporting format shall be approved by the Engineer.
7-4.2.1 Labor. ADD the following:
The City reserves the right to request the following:
a) Financial records of salaries for an employee.
b) Wage rates.
c) Bonuses and deductions.
Use a reporting form approved by the Engineer to list the labor rates of the personnel and Subcontractors who Work on this Project. Make the initial submittal prior to NTP. The payment for payroll records is included in the Contract Price.
Work to be performed outside
Normal Working Hours, the labor charges associated with the Extra Work shall consist of straight time wages and burdens plus the appropriate overtime or shift premium with no additional burdens, such as fringe benefits, on the premium portion.
7-4.2.3 Tool and Equipment Rental. DELETE in its entirety and SUBSTITUTE with the following:
No payment shall be made for the use of tools which have a replacement value of $200 or less.
Regardless of ownership, the rates to be used in determining equipment rental costs shall not exceed those listed in the latest edition of the Caltrans publication entitled "Labor Surcharge and Equipment Rental Rates" preceding the date the Work is accomplished. The latest edition of the Caltrans publication is available at www.dot.ca.gov.
The Contractor shall be entitled to a rental rate adjustment when it can be substantiated that the rental rates prevailing locally exceed the published rates by more than 15%. For equipment not listed in the Caltrans publication, rental rates shall not exceed listed rates prevailing locally at equipment rental agencies or distributors at the time the Work is performed.
Whenever possible, Extra Work shall be accomplished using equipment available on Site or owned by the Contractor. If a specific piece of equipment shall be rented to be used exclusively for the Extra Work, the rental rate shall be the invoiced rate.
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FOR CONVENIENCE" the settlement proposal shall be determined pursuant to the funds have been made available. If the Contract is terminated for default, the City's rights performance of the Contract under another clause (an "option" or "changes" clause) shall not constitute the notification contemplated in subsection "a" above.
Contractor's
If the Contractor's proposal for Extra Work is based upon services and
SPECIAL PROVISIONS - SECTION 7 - PAGE 9
If rental equipment is not being used and could be returned to its rental source rather than holding it at the Work site, return the equipment at no expense to the City unless it is kept at the Work Site at
The reported rental time for equipment already at the Work site shall be the duration of its use on the Extra Work. This time shall begin when equipment is first used on Extra Work, plus the time required to move it from its previous site and back or from its previous site to a closer site.
All equipment shall be acceptable to the Engineer, in good working condition, and suitable for the purpose for which it is to be used.
7-4.3 Markup. DELETE in its entirety and SUBSTITUTE with the following:
Work paid under Allowance Bid items for permits, governmental fees, or direct payments specified in the Contract Documents shall not be subject to any markups.
The allowance for overhead and profit shall not exceed the values listed in the table below:
Component Overhead Profit
Labor 10% 10%
Material 10% 5%
Equipment 10% 5%
Markups for materials shall be applied to the actual cost of the material before applying the sales tax.
When a Subcontractor is performing Extra Work, the allowance for overhead and profit shall be applied to the labor, materials, and equipment costs of the Subcontractor as follows:
Regardless of the number of Subcontractor tasks for Extra Work, the Contractor may only apply 10% for the first $50,000 of the Subcontra
If the accumulated costs of single or subsequent tasks exceed the $50,000 threshold, the Contractor shall instead only apply 5% to any amounts in excess of the $50,000.
The Contractor shall not apply 10% to any costs after the first $50,000 of accumulated total costs from performing Extra Work.
Regardless of the number of hierarchical tiers of Subcontractors, the Contractor may only
ADD: 7.4.3.1 Disallowance of Entitlement. The Contractor shall not be entitled to any adjustment in the Contract Price or Times if:
The Contractor knew of the existence of such conditions at the time the Contractor made a final commitment to the City in respect to Contract Price and Contract Times by the submission of a Bid or becoming bound under a negotiated contract; or
The existence of such condition could reasonably have been discovered or revealed as a result of any record search, examination, investigation, exploration, test or study of the Site and contiguous areas suggested or required by the Bidding Documents.
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DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 the Contractor's expense.
ctor's portion of accumulated total cost.
markup a Subcontractor's Work once.
SPECIAL PROVISIONS - SECTION 7 - PAGE 10
- END OF SECTION -
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SPECIAL PROVISIONS - SECTION 7 - PAGE 11
SECTION 8 - FACILITIES FOR AGENCY PERSONNEL
For this contract, the provision of Section 8 of the Standard Specifications shall not apply.
- END OF SECTION
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SCOPE OF WORK
1.1 Background:
A. The Palm Springs International Airport has experienced significant growth in passenger activity over the past five years resulting in the need to expand and upgrade its bag claim lobby to increase public space, improve circulation, and accommodate greater bag claim capacity. Palms Springs and the surrounding Coachella Valley is a popular leisure destination resulting in higher than typical passenger bag loads and number of oversize bags (golf clubs and similar items).
B. The existing baggage claim area is approximately 180 feet wide and 110 feet deep, is equipped with three flat plate bag claim devices with approximately 835 feet total belt length (including offload positions), and rental car service counters and offices located along the front wall of the lobby. The existing building is a single level, flat roof building with a slab on grade floor. The structural grid is approximately 30 feet by 30 feet. HVAC distribution is contained overhead within a drop ceiling and supplied by central plant. The building is on the register of historic places. There are limitations on the types of modifications that will be acceptable, and requirements to utilize specific building materials and aesthetics to match existing historic characteristics.
1.2 Scope:
A. The Contractor will be responsible for the preconstruction and construction services for the renovation and expansion the entire bag claim area at the Airport. The footprint consists of existing lobby area of 19,800 square feet and the expansion area of approximately 10,000 square feet totaling of approximately 29,800 square feet. The project area is generally located at the northeast area of the existing airport facility along Kirk Douglas Way. All work and materials must be in keeping with the historic determination for the building.
B. The detail of the scope includes but is not limited to the following:
1. Partner in the design and lead in the construction of bag claim facility to accommodate PSP projected growth thru the next 15 years
2. length overhead loading slope plate baggage claim belts with overhead loading fed from the ramp area.
3. Demolition work such as:
a. Remove carpet
b. Remove hanging ceiling
c.
Advertising
d. Removal of old baggage belts and drive equipment
4. Removal or modification of existing exterior and interior walls
5. Hazmat remediation
6. Updating of walls, ceilings, doors and flooring finishes
7. Replacement of wayfinding signage
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DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 EXHIBIT "B"
Replacement of three existing flat plate baggage belts with new up to a maximum of 200' Work with Airport's Advertising Contractor to removal, relocate and or store of Airport
8. Expansion of approximately 10,000 sq ft of baggage claim area to house the 4th slope plate baggage claim belt with overhead loading fed from the ramp area a. Defined oversize bag claim area
b. Stainless steel finish work on the carousels
c. Each baggage carousel should be an independent PCL operated system d. Spare parts for baggage carousels include including spare PCL parts and mechanical parts
e. Shade structure for baggage loading belts on the ramp side
9. Two all gender/family Restrooms
10. All building systems to be included (HVAC, electrical, fire alarm, fire suppression, plumbing and lighting
11. 12. All ancillary systems to be integrated with existing infrastructure (SACS, security cameras, BIDS, FIDS, PA system)
13. Relocation of perimeter fence to FAA standards
14. Restriping of parking lot for new traffic flow
15. Relocation of storm drain vault
16. Potential relocation of tenant space at the northwest area
17. Placement of construction walls
18. Proposed Laydown yard
19. Any other construction or design activity necessary to achieve the goal of a fully functioning renovated and expanded bag claim project.
C. The Contractor will perform the work in two phases as follows:
1. The first phase is the preconstruction phase. During this phase, the Contractor will work as part of the team to review the design, provide constructability reviews, construction estimates and advise on long lead items. The Contractor will build and maintain the project schedule. Additionally, the design firm will develop trade bid packages that the Contractor will bid out to fast track the construction. The Contractor will help guide the design firm in the development of the packages to ensure the work continues moving forward to meet the aggressive timelines. The Contractor will be responsible for ensuring the packages are complete to bid. The Contractor will receive sealed bids and the Contractor may include minimum qualification in the bid package to ensure the trade contractors have the proper experience to construct the project. A concurrence letter will be provided by the Contractor to the City listing the bids received and the recommended subcontractors for the work. Award will be based on the lowest responsive responsible bidder unless circumstances justify allowing the Contractor to award the contracts differently. Upon receipt of the concurrence letter, the City will review the letter and, if in agreement, will allow the Contractor to award the contract.
2. The second phase is the construction phase. Once the first trade package is awarded, the construction phase will begin, however, there may be overlap between the preconstruction phase and construction phase. In this phase, the Contractor will oversee the sub trade work and complete the work correctly, safely, with a high level of quality, Item 3A - Page 133
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 HVAC system for expansion should be independent "Boxcar'' system
and within the schedule and cost of the GMP. Contractor may not self-perform any subtrade work unless preapproved by the City and as outlined in the scope of work.
D. Pre-Construction Services:
preconstruction phase services:
1. Preliminary Project Evaluation:
a. The Contractor should participate in a kick-off meeting with the project team to establish rapport and develop a common understanding of the goals of the project.
The Contractor should provide a preliminary evaluation of the project and construction budget requirements, including a review of all background data made available by the City as to requirements, criteria, priorities, feasibility, and physical and financial limitations for the project.
b. The Contractor should become thoroughly familiar with the site and conditions surrounding the site and document the conditions observed on the site with photos or videos as may be required by the City. The Contractor shall review site data with the City . Site data may include items such as access,
location of services, security, surveys, soils information, and other relevant information.
c. The Contractor should properly identify by potholing and locate all utilities, services and other underground facilities that may impact the project.
2. Project Estimates:
a. The Contractor should provide cost modeling, initial project estimates, project estimate updates and construction document estimates. These items are further described below:
i. Cost Model: The Contractor shall prepare a cost model which explains the methodology being used for estimating program costs and provides a copy of the cost model to the City within 30 days from the notice to proceed. The cost model should serve as a basis for all estimates for the program including the development of proposed Guaranteed Maximum Price (GMP). ii. Initial Project Estimate: The Contractor should prepare an estimate for the project within 30 days after notice to proceed. The initial estimate will serve as the baseline for evaluating project changes and comparing options to the original scope of work.
iii. Project Estimate Updates: The Contractor should prepare several levels of budgeting, estimating and pricing appropriate to established levels of design, and should continue to refine cost estimates as the throughout the pre- construction phase with input provided to the City on clarifications needed to reduce allowances or contingencies. The Contractor should continue to review and refine the project estimate as construction documents are prepared for the project and advise the City if the project estimate ever exceeds the planned budget or project completion exceeds the planned schedule. iv. Construction Document Estimates: When the project plans and specifications are complete, the Contractor should prepare and submit, at the Item 3A - Page 134
DocuSign Envelope ID: 43CA5BEC-7883-44E2-BDA0-1822497C7AE4 The Contractor's shall provide perform the following
and the City's design team
time of GMP negotiation, a cost estimate on the basis of a quantitative material take-off with current local costs for each City-established bid group and by subcontract package. With these updated estimates, the Contractor will submit a report of line item variances from the previous estimate with information describing the basis for each variance. Also, formal constructability reviews with the City should be scheduled at indicated completion milestones prior to bidding trade subcontract packages.
3. Project Schedules:
a. The Contractor must provide baseline and monthly progress schedules monthly to track the work progress and provide early reporting to the City of any issues that need to be addressed that could affect the project completion date. More specifically the schedules shall be prepared as follows:
i. Baseline Schedule: The Contractor shall prepare a baseline schedule of the project and provide the schedule to the City within 30 days from the notice to proceed. The initial baseline schedule will provide a preliminary schedule to complete the project and must be developed in the critical path format. ii. Progress Schedules: With each monthly billing, the Contractor shall prepare and provide an updated progress to the baseline schedule showing any changes to the schedule since the preceding month and plans to mitigate any delays to the schedule.
iii. Final As Built Schedule: The Contractor shall submit at project closeout a final as built schedule depicting how the Contractor constructed the job including all changes to the baseline schedule throughout the duration of the project.
4. Constructability Reviews:
a. The Contractor will provide constructability reviews of the design through the completion of the final plans and specifications, by reviewing and advising on the in- progress design development documents, including the evolving architectural, civil, mechanical, plumbing, electrical, and structural plans and specifications. The Contractor should analyze the design for constructability, including construction feasibility and practicability, along with alternative materials and methods to, among other things, accelerate the project schedule. The primary purpose of the constructability reviews is to validate the appropriateness of the project approach and optimize project cost and schedule for the project.
b. The Contractor shall assist and advise the City in exploring alternative approaches, materials, and systems, including value engineering, to minimize total construction and operating costs, including comparisons of initial cost vs. life cycle costs.
c. The Contractor shall assist the City in preparing comparative life-cycle studies of ownership, operating, and maintenance costs for each schematic design alternative considering costs relating to efficiency, usable life, maintenance, energy and operation of the baggage claim devices as appropriate.
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d. The Contractor should continuously monitor impacts of the proposed design on the project schedule and recommend adjustments in the design documents or construction bid packages to ensure completion of the project in the most expeditious timeline.
e. The Contractor shall advise and assist the City in dealing appropriately with all applicable laws and regulations, local utilities, and other related infrastructure issues, as necessary.
f. The Contractor will
design team and make recommendations to the team with respect to phasing the work to allow initiation of construction work while the design for the project is completed. With City authorization, the Contractor shall award trade subcontracts .
g. When evaluating such phasing plans for early completion of the project, the Contractor must take into consideration factors such as natural and practical lines of severability, sequencing effectiveness, access and availability constraints, total time for completion, construction market conditions, availability of labor and materials, community relations and other factors pertinent to reducing construction time and cost by overlapping design and construction.
5. Review of Reports, Studies and Data:
Within a specified time after receiving the Construction Package Documents for the project, the Contractor should perform a specific review focused on construction feasibility and practicability and apparent defects through the constructability reviews.
Promptly after completion of the review, the Contractor should submit to the City a written report addressing previously submitted suggestions or recommendations and making additional suggestions or recommendations, focusing on the separation of work into separate and discrete segments, use of alternative materials, and consideration of optional phasing or scheduling of the work. Contractor shall also participate and/or lead value engineering exercises to keep the project within budget.
6. Procurement Planning:
The Contractor must perform a review of the design focused on the availability of construction materials necessary to complete the project. This includes identifying alternative material sources and whether they will affect delivery schedules and project costs. Advise the Airport on ways to gain efficiencies in project delivery provided long- lead procurement studies and initiate the procurement of long-lead items.
7. Long Lead Procurement:
a. The Contractor must continually review the design to identify long lead procurement items (manufactured/fabricated items, equipment, materials and supplies) for the project. The Contractor shall notify the City of such items and the anticipated procurement schedule. Long lead items should be identified in the bid documents and be made a part of all affected subcontracts, as well as the project schedule. b. The Contractor will arrange for procurement of long-lead items, as authorized by the City.
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c. The Contractor shall track progress of the respective subcontractors or suppliers that are manufacturing or fabricating these long lead items and advise the City of any problems or possible delays in delivery. If the City partially or fully pays for these items prior to arriving on the project site, the Contractor shall require the supplier or manufacturer to provide evidence of completion and warehousing acceptable to the City.
d. City reserves the right to procure any and all the materials and equipment required for the project.
8. Subcontractor Outreach:
a. The Contractor will continually monitor the construction market to identify factors that may affect project costs and schedule for completion.
b. As various bid scopes are prepared for bidding, the Contractor shall submit to the City a list of potential bidders.
c. The Contractor shall stimulate bidder interest in the local, regional and national marketplace in order to identify and encourage bidding competition. d. The Contractor will subcontract all portions of the project, with the exception of the preconstruction services and the general conditions, to manage the work as required by the City.
e. The Contractor should prepare all non-technical bid documents for procurement of long lead items, materials and services, and subcontractors. f. The Contractor, unless waived by the City, conducts conferences with all prospective subcontractors, for the purpose of reviewing and approving awards. For questions requiring an interpretation of the documents or otherwise indicating a need for clarification or correction, the Contractor should submit them to the City, and upon receiving clarification or correction, should prepare and issue an addendum to the document to all of the prospective subcontractors.
g. Once a subcontractor is selected the Contractor shall submit a concurrence letter with a bid tabulation attached demonstrating market competition. If for any reason the lowest responsive responsible bidder is not being recommended for selection complete, justification must be provided to the City for consideration.
9. Coordination and Interaction with Subcontractors:
a. The Contractor should review the design documents for clarity, consistency and coordination of documentation, and identify any apparent ambiguities or defects in the design, plans and specifications or other documents, use of inappropriate or restrictive requirements, overlap with any separate construction trade contracts, or omissions in the bid documents.
b. The Contractor should ensure that all relevant construction requirements are included in the separate contracts for procurement of long lead items and in all construction subcontracts.
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c. The Contractor should ensure that the scopes for all construction subcontracts do not overlap or duplicate work and are sequenced to maintain completion of all work on schedule. The Contractor should verify that the bid scope for each subcontract clearly identifies the work included in that subcontract, as well as its schedule for start and completion and its relationship to other subcontractors. d. If the Contractor identifies during the bid process any scope that was left out that would not allow for a fully completion of that trade package, the Contractor shall notify the City and request that an allowance be allowed for the missing items to be included in the subcontract to complete the missing scope. A cost estimate supporting the allowance amount shall be provided by the Contactor for review.
10. Minimum Qualifications of Subcontractors:
a. The Contractor, may establish objective minimum qualifications in each bid package to make sure the subcontractors are qualified to complete the work. Such minimum requirements can include but are not limited to: Financial stability, past performance, bonding capacity, safety record, and qualified management and key project personnel.