Alternatively, an Early Work Package Submittal may include pricing for all or part of the Design-Build Work on a firm, fixed price basis.
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(F) Compensation Payable in Connection With Early Work Packages. The Town shall pay the Early Work Package Price to the Design-Builder for Design-Build Work properly performed and completed pursuant to the terms of the Early Work Package Amendment in accordance with, and subject to the limitations contained in, Appendix 8 (Design-Build Price), notwithstanding the fact that no GMP Amendment will be in effect at the time the parties execute an Early Work Package Amendment. (G) Design-Builder Representations in an Early Work Package Amendment.
The execution of any Early Work Package Amendment will be deemed to constitute representations by the Design-Builder with respect to the Early Work Package to the same effect as the representations made in Section 5.8(H) (Design-Builder Representations in a GMP Amendment) with respect to the GMP Amendment, with references to Design-Build Work referring to the Early Work Package and references to the Base Guaranteed Maximum Price referring to the Early Work Package Price.
(H) Limited Authorization to Proceed; Commencement of Early Work Package. If the parties agree to an Early Work Package Amendment, the Town shall issue a limited Notice to Proceed with the Design-Build Work associated with the Early Work Package, subject to this Section. Notwithstanding the issuance of a limited Notice to Proceed with an Early Work Package, the Design-Builder shall not commence any Construction at the Project Sites in connection with such Early Work Package until the Design-Builder has satisfied the following requirements:
(1) The Design-Builder shall have provided a Performance Bond and a Payment Bond for the Early Work Package, and certified that such Performance Bond and Payment Bond are in full force and effect and in compliance with the requirements set forth in Section 16.1 (Bonds);
(2) The Design-Builder shall have provided the Town with certificates for all Required Insurance in accordance with Section 13.1 (Insurance) and certified that all such policies are in full force and effect and in compliance with the requirements of Section 13.1 (Insurance) and Appendix 10 (Insurance Requirements); (3) The Design-Builder shall have satisfied all requirements of Applicable Law with respect to the commencement of construction and shall have obtained all Governmental Approvals required for the commencement of the Construction of the Early Work Package Design-Build Work as well as Governmental Approvals that the Town has determined in its discretion must be obtained prior to the commencement of Construction and provided copies of such Governmental Approvals to the Town. All such Governmental Approvals shall be in full force and effect; and (4) The Design-Builder shall have provided the Town with the final, approved Health and Safety Plan in accordance with the Contract Standards.
The foregoing requirements are in addition to any other preconditions to the commencement of Construction established by the Contract Documents.
SECTION 5.7. GMP SUBMITTAL.
(A) Preliminary Services and GMP Submittal. As part of the Preliminary Services, the Design-Builder is obligated to develop the design of the Project to the GMP Submittal Design Level. The GMP Submittal, as described in the Preliminary Services set forth in Appendix 2 (Preliminary Services), shall be completed and submitted to the Town on a timely basis as required under Appendix 2 (Preliminary Services), and shall remain a firm offer by the Design-Builder for at least 90 days; provided that the Town shall respond to the Design-Builder 349
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regarding the GMP Submittal in accordance with Appendix 2 (Preliminary Services). The Design-Builder shall not condition the GMP Submittal by inclusion of any requirement that a GMP Amendment be entered into by the parties or that the Notice to Proceed with Design-Build Period Work in accordance with Section 6.1(A)(1) (Notice to Proceed) or a Limited Notice to Proceed pursuant to subsection 6.1(A)(2) (Limited Notice to Proceed) be issued by the Town prior to the expiration of such 90 day period. The GMP Submittal shall include and be based upon the Baseline Design Documents, Substantial Completion Standards and all other information, analysis, findings and reports developed by the Design-Builder during the performance of the Preliminary Services, and shall be prepared in accordance with the Contract Standards. Without limiting the requirements of Appendix 2 (Preliminary Services), the GMP Submittal shall include a price submittal, a technical submittal and an additional information submittal, as follows:
Price Submittal:
(1) A proposed Base Guaranteed Maximum Price, to be incorporated in Section 8.7.2 of Appendix 8 (Design-Build Price), together with all supporting information required by subsection (B) of this Section; (2) A proposed Anticipated Design-Build Period Work Cost Schedule and a proposed Design-Builder Contingency and a proposed Specified Project Risk Contingency, to be prepared in accordance with, and attached as part of Attachment 8D (Anticipated Design-Build Period Work Cost Schedule and Design-Builder Contingency) to Appendix 8 (Design-Build Price);
(3) If applicable and requested by the Town, a list of any proposed allowance items (including a proposed Town Allowance), alternate prices and unit prices; Technical Submittal:
(1) Proposed Baseline Design Documents, to be incorporated in and to constitute Appendix 4 (Baseline Design Documents) of this Design-Build Contract; (2) The final and complete list of required Governmental Approvals for the Project (including Governmental Approval Application Dates and Assumed Approval Issuance Dates, all as required by Appendix 2 (Preliminary Services)) to be incorporated in Appendix 3 (Governmental and Non-Governmental Approvals) of this Design-Build Contract;
(3) A description of any Change-in-Law that has occurred between the Contract Date and the date of the GMP Submittal;
(4) An updated and finalized description of the Project alignment and the Project Sites;
Commercial Terms Submittal:
(1) A proposed Design-Build Period Work Schedule including the Scheduled Substantial Completion Date (expressed as the number of calendar days following the GMP Amendment Date by which Substantial Completion shall be achieved); and (2) A proposed delay liquidated damages amount to be inserted in Section
8.3(C) (Delay Liquidated Damages).
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Additional Information Submittal:
(1) A proposed final Subcontracting Plan;
(2) The names of additional proposed Subcontractors (other than any existing Approved Subcontractors) and descriptions of their roles for approval by the Town as Approved Subcontractors;
(3) A description of the manner in which any Early Work Packages will be integrated into the final Design-Build Work, including price, schedule and performance considerations;
(4) A letter from a surety qualified under Section 16.1 (Bonds) confirming the intent of the surety to provide the Payment Bond and Performance Bond required under such Section on the GMP Amendment Date;
(5) A description of the manner in which the Design-Builder will comply with the skilled and trained workforce requirements of Section 22172(b) of the California Public Contract Code;
(6) A listing of any assumptions, clarifications or qualifications made by the Design-Builder in providing its GMP Submittal that are material to any part thereof, including a statement as to what information supplied by the Town (if any) the DesignBuilder proposes to use as the basis of any portion of its GMP Submittal; and (7) Any other information reasonably requested by the Town prior to the due date for the GMP Submittal as necessary or appropriate to negotiate and complete the GMP Amendment.
(B) Derivation of Proposed Base Guaranteed Maximum Price. The GMP Submittal shall include a detailed and comprehensive description of how the proposed Base Guaranteed Maximum Price was derived and the material factors on which it was based, all in compliance with the requirements for establishing the Base Guaranteed Maximum Price set forth in Appendix 2 (Preliminary Services), together with any other related information required pursuant to this Section. All costs, bids, quotes, estimates and other information supporting the GMP Submittal shall be made available to the Town upon request. The proposed Base Guaranteed Maximum Price and the other elements of the GMP Submittal shall be based upon the risk allocation established by this Design-Build Contract as of the Contract Date, unless the Town, in its discretion, agrees to changes in such risk allocation. (C) Preliminary Services Fee, Design-Builder Fee and General Conditions Fee. The parties acknowledge and agree that the not-to-exceed amount of the Phase 1a Preliminary Services Fee and the Design-Builder Fee were proposed by the Design-Builder as part of the Statement of Qualifications, negotiated by the parties prior to the Contract Date and included in this Design-Build Contract as executed on the Contract Date, and shall not be subject to increase in any Early Work Package, the GMP Submittal or the GMP Amendment. (D) Early GMP Submittal. The parties may agree, each in its discretion, that the GMP Submittal may be made, and the GMP Amendment negotiated, prior to the GMP Submittal Design Level stage. In such event, any Preliminary Services that have not been completed at the time of an early GMP Amendment shall be performed as part of the DesignBuild Work and the compensation therefor paid as part of the Design-Build Price. 351
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SECTION 5.8. GMP AMENDMENT.
(A) Non-Compliant GMP Submittal. In the event the GMP Submittal does not comply with the requirements of this Design-Build Contract, the Town shall provide written notice to the Design-Builder of any additions, corrections or revisions required to achieve such compliance. In such event, the Design-Builder, at its cost and expense, and without any increase in the Preliminary Services Fee, shall promptly take all necessary rectification action, making multiple re-submittals if required. The failure of the Design-Builder to furnish the Preliminary Services and provide the GMP Submittal in accordance with the Contract Standards shall be a material breach of this Design-Build Contract. (B) Negotiation and Execution of the GMP Amendment. The Town and the Design-Builder acknowledge and agree that each intends to negotiate and enter into a Contract Amendment for the performance of all Construction and all other Design-Build Work necessary to achieve Final Completion (the “GMP Amendment”) based on the GMP Submittal and the completion of the other Preliminary Services. The principles for negotiating the Base Guaranteed Maximum Price are set forth in subsection (C) of this Section. The GMP Amendment at a minimum shall incorporate and definitively address all of the items identified in Section 5.7(A) (Preliminary Services and GMP Submittal). In the event the parties elect to execute the GMP Amendment, the date of execution and delivery thereof shall constitute the “GMP Amendment Date” hereunder, and thereupon the Design-Build Period shall commence.
Without limiting anything set forth in this Design-Build Contract, the parties may enter into a GMP Amendment that includes a fixed lump sum price for completion of the Design-Build Work in lieu of a Base Guaranteed Maximum Price, and such GMP Amendment shall include modifications to the terms and conditions specified herein necessary to effectuate payment for Design-Build Work based upon the fixed lump sum price. In addition, without limiting anything set forth in this Design-Build Contract, the parties may enter into a GMP Amendment that includes fixed lump sum prices for completion of portions of the Design-Build Work and a Base Guaranteed Maximum Price for completion of the balance of the Design-Build Work, and such GMP Amendment shall include modifications to the terms and conditions specified herein necessary to effectuate payment for Design-Build Work based upon such fixed lump sum prices and Base Guaranteed Maximum Price. The parties acknowledge and agree that the GMP Amendment shall be reflected in an amendment and restatement of this Design-Build Contract, and will not be effective except upon approval by the Town Council. (C) Base Guaranteed Maximum Price Negotiating Principles. Each party acknowledges that it intends to negotiate the Base Guaranteed Maximum Price taking into account the following:
(1) The reasonably estimated costs of completing the design and construction of the Project (including costs payable under Early Work Packages) and achieving Substantial Completion and Final Completion in accordance with the Contract Standards and the cost elements set forth in Appendix 2 (Preliminary Services). Considerations of risk shall be taken into account separately, pursuant to item (2) below. Such costs shall be the basis of the items constituting the Anticipated Design-Build Period Work Cost Schedule.
(2) An amount reasonably attributable to indeterminable costs that, considered individually and valued in the aggregate based on agreed-upon probabilityof-occurrence models adapted specifically to the Project, may be incurred should the risks assumed by the Design-Builder in performing the Design-Build Work occur. Such costs shall be the basis of establishing the Design-Builder Contingency. The risks assumed by the Design-Builder shall be identified in the risk register prepared as part of the Preliminary Services, and include:
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(a) The risks identified as excluded from the definitions of “Uncontrollable Circumstances”;
(b) The risk of Subcontractor delay or non-performance; (c) Changes in the scope or cost of Design-Build Work that may occur as the design is advanced from the level set forth in the Baseline Design Documents to a fully complete level;
(d) The risk that inflation in the cost of commodities, materials, equipment, labor and services necessary for the completion of the Design-Build Work will exceed the level assumed by the parties in establishing the Base Guaranteed Maximum Price under item (1) above;
(e) The risk that it may be necessary to incur additional capital and operating expenses in order to meet the Substantial Completion Standards and achieve Substantial Completion; and
(f) Any other risk specifically referred to herein as a risk to be borne by the Design-Builder in performing the Design-Build Work. (3) The fact that costs associated with Uncontrollable Circumstances are separately compensable from the Design-Build Period Costs that are limited by the Base Guaranteed Maximum Price. Such costs shall be borne by the Town as and to the extent provided in Article 14 (Uncontrollable Circumstances) and shall not be included in the Design-Builder Contingency.
(D) Obligations of the Design-Builder Relating to the GMP Amendment. In connection with a potential GMP Amendment, the Design-Builder shall be obligated (1) to make a complete bona-fide GMP Submittal in accordance with this Section and Section 5.7 (GMP Submittal), and (2) to negotiate in good faith toward a GMP Amendment based on the GMP Submittal, if and to the extent the Town elects pursuant to subsection (E) of this Section to enter into and continue such negotiations. The Preliminary Services do not include negotiating a GMP Amendment, and the Design-Builder represents that the Preliminary Services Fee does not include consideration for the costs and expenses of negotiating the GMP Amendment. The Design-Builder shall bear all such negotiating costs and expenses, whether paid or incurred concurrently with or upon completion of the performance of the Preliminary Services and the preparation and delivery of the GMP Submittal.
(E) No Obligation of the Town to Enter Into a GMP Amendment.
Notwithstanding the intent of the parties as expressed in subsection (B) of this Section, the Town has no obligation whatsoever to negotiate with the Design-Builder to enter into a GMP Amendment. The Town, in its discretion, may elect not to commence or continue negotiations and not to enter into and execute a GMP Amendment for any reason. The Design-Builder acknowledges and agrees that no failure by the Town to negotiate or to enter into the GMP Amendment shall entitle the Design-Builder to make any claim for damages or compensation as a result of any such failure, and all such claims are hereby waived and released by the Design-Builder. The Design-Builder acknowledges and agrees that neither the intent of the parties to negotiate and enter into the GMP Amendment, nor the conduct or discontinuance of any such negotiations, shall be construed to limit or affect the Town’s right to terminate this Design-Build Contract for its convenience at any time as provided in Section 12.6 (Town Convenience Termination Rights).
(F) Elective Continuance of the Project by the Parties on Other Bases. The Town at any time may request a proposal from the Design-Builder or the lead design 353
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Subcontractor acting as Engineer-of-Record to provide professional engineering and other services necessary to advance the design of the Project (either partially or to the fully complete level) so that the Project may be procured and constructed on a design-bid-build or other alternative basis. The Design-Builder shall make a bona fide proposal to enter into such services on terms and conditions substantially identical to the terms and conditions of this Design-Build Contract pertaining to the design services element of the Preliminary Services, and to negotiate in good faith to enter into a Change Order with the Town to provide such services. At the Town’s request, the Design-Builder shall cause the lead design Subcontractor to make such proposal and to negotiate in good faith to enter into a separate agreement with the Town to provide such services.
(G) Elective Continuance of the Project by the Town with Other Contractors; Project Documents. The Town shall have the right at any time in its discretion to proceed to develop and implement the Project with other contractors and service providers. The Town may exercise such right during the performance of the Preliminary Services, upon termination of this Design-Build Contract or upon any failure of the parties to execute a GMP Amendment.
The Town shall have the further right in connection therewith, based on its ownership of the Preliminary Services Deliverable Material as provided in Section 4.8 (Ownership and Use of Documents and Information), to use any Preliminary Services Deliverable Material in any manner it chooses to complete the design and construction of the Project. In such event, the Design-Builder shall be liable for the Preliminary Services Deliverable Material solely to the extent of errors or omissions in the Preliminary Services Deliverable Material, as determined based on the developmental stage of the Preliminary Services Deliverable Material at the time of transfer to the Town and Good Engineering and Construction Practice. This limitation as to the Design-Builder’s liability for the Preliminary Services Deliverable Material is applicable only to the extent the Town determines not to enter into the GMP Amendment or otherwise terminates this Design-Build Contract and is intended to recognize the Town’s investment in the Preliminary Services Deliverable Material and to provide the Town with a meaningful alternative for the design and construction of the Project in such circumstances, while recognizing that the Design-Builder will not have control over the use of the Preliminary Services Deliverable Material in such circumstances and that the Preliminary Services Deliverable Material may not be complete, final, appropriately stamped and/or signed. The Design-Builder acknowledges and agrees that such limitation will have no applicability if the parties enter into the GMP Amendment and proceed with the Design-Build Period Work. (H) Design-Builder Representations in a GMP Amendment. In the event the parties execute a GMP Amendment, the GMP Amendment shall be deemed to constitute a representation by the Design-Builder that:
(1) It has examined, carefully studied, and thoroughly understands the Contract Documents associated with the Design-Build Work; (2) It has thoroughly reviewed and verified all information provided to or obtained by the Design-Builder through the performance of the Preliminary Services, including:
(a) Reports of explorations and tests of subsurface conditions at or contiguous to the Project Sites and all drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Project Sites which have been identified or made available by the Town; and (b) Reports as to Regulated Substances, if any, at the Project Sites which have been identified or made available by the Town; 354
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(3) It has become familiar with and is satisfied as to the general, local, and Project Sites conditions that may affect cost, progress, and performance of the DesignBuild Work; (4) It is familiar with and is satisfied as to all Applicable Law that may affect cost, progress, and performance of the Design-Build Work; (5) It is aware of the nature of the Related Projects and is satisfied that the Design-Build Work can be performed in accordance with the requirements concerning the Related Projects, as set forth in the Contract Documents; (6) It has considered the information known to the Design-Builder, including information commonly known to designers and contractors doing business in the locality of the Project Sites; information and observations obtained from visits to the Project Sites; and the Project Sites-related reports and drawings identified in the Contract Documents, with respect to the effect of such information, observations, and documents on:
(a) The cost, progress, and performance of the Design-Build Work; (b) The means, methods, techniques, sequences, and procedures of construction to be employed by the Design-Builder, including any specific means, methods, techniques, sequences, and procedures of construction expressly required by the Contract Documents; and
(c) Design-Builder’s health and safety precautions and programs; (7) Based on all of the foregoing and the performance of the Preliminary Services, the Project Sites constitute acceptable and suitable sites for the performance of the Design-Build Work;
(8) It does not consider that further examinations, investigations, explorations, tests, studies, or data are necessary for it to enter into the GMP Amendment for the performance of the Design-Build Work for the Base Guaranteed Maximum Price on or before the Scheduled Substantial Completion Date, and in accordance with the other terms and conditions of this Design-Build Contract; (9) The Baseline Design Documents are sufficient to enable the DesignBuilder to determine the Base Guaranteed Maximum Price; and (10) Subject to the terms and conditions of this Design-Build Contract, the Design-Build Work can be completed in accordance with the Contract Standards for the Base Guaranteed Maximum Price by the Scheduled Substantial Completion Date. (I) Performance Bond and Payment Bond. The Design-Builder, as provided in Section 5.6(A) (Early Work Packages) and in Section 16.1 (Bonds), shall provide the Performance Bond and the Payment Bond concurrently with the execution of the GMP Amendment.
SECTION 5.9. APPROVALS REQUIRED PRIOR TO DESIGN-BUILD PERIOD.
The parties acknowledge that the Design-Builder and the Town will be obtaining Governmental and Non-Governmental Approvals during the Preliminary Services Period. The parties further acknowledge that the Town does not intend to execute a GMP Amendment until 355
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all Governmental and Non-Governmental Approvals listed in Appendix 3 (Governmental and Non-Governmental Approvals) have been obtained, unless waived in writing by the Town. 356
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ARTICLE 6
DESIGN-BUILD WORK
SECTION 6.1. DESIGN-BUILD PERIOD WORK GENERALLY.
(A) Authorization to Proceed; Commencement and Completion of the DesignBuild Period Work. (1) Notice to Proceed. The Town shall issue the Notice to Proceed with the Design-Build Period Work concurrently with or promptly following the occurrence of the GMP Amendment Date, and following issuance of the Notice to Proceed with Design-Build Period Work the Design-Builder shall promptly proceed to undertake, perform and complete the Design-Build Work in accordance with the Contract Standards; provided, however, that the DesignBuilder shall not commence Construction of the Project until the Construction Commencement Date. The Design-Builder shall be paid the Design-Build Price pursuant to Article 9 (Contract Compensation) as its entitlement to payment of portions of the Design-Build Price arise thereunder.
(2) Limited Notice to Proceed. The Town, in its discretion, may issue a Limited Notice to Proceed with Construction and the specific terms and conditions under which the Design-Builder is authorized to proceed with Construction shall be specified in such Limited Notice to Proceed, and following issuance of such Limited Notice to Proceed the Design-Builder shall promptly proceed to undertake, perform and complete such Design-Build Period Work identified in such Limited Notice to Proceed Construction under the specific terms and conditions specified in the Limited Notice to Proceed and otherwise in accordance with the Contract Standards.
(B) Elements of the Design-Build Period Work. In performing the DesignBuild Period Work generally, the Design-Builder shall, in accordance with the Contract Standards:
(1) Apply for, obtain and maintain any Design-Builder Managed Approvals or any Design-Builder Managed Non-Governmental Approvals required for the DesignBuild Period Work not obtained as of the GMP Amendment Date, and assist the Town in obtaining the Town Managed Governmental Approvals and the Town Managed NonGovernmental Approvals which have not been obtained as of the GMP Amendment Date;
(2) Perform all necessary Project Sites preparation and excavation activities; (3) Demolish and remove any existing improvements at the Project Sites, as and to the extent required by the Baseline Design Documents; (4) Modify, re-route, repair or replace or cause the modification, re-routing, repair, or replacement of, any Utilities, as and to the extent required by the Contract Documents;
(5) Remove from the Project Sites and dispose of any demolition or construction debris resulting from the Design-Build Work and any unused soil excavated therefrom, as well as water from de-watering activities, in an environmentally safe manner;
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(6) Complete the design and construct the Project;
(7) Restore the surface of the Project Sites to the condition prior to construction and consistent with the standards and requirements set forth in Appendix 4 (Baseline Design Documents);
(8) Achieve Substantial Completion; and
(9) Achieve Final Completion,
all so that the Project is suitable and adequate for the purposes hereof. (C) Sequencing and Staging of Design-Build Period Work. The DesignBuilder shall not be limited in the sequencing or staging of the Design-Build Period Work, except to the extent that: (1) the Contract Standards impose limitations, and (2) the Town’s issuances of Limited Notices to Proceed impose limitations. The Town understands and acknowledges that the Design-Builder intends to complete the Design-Build Period Work in stages, whereby particular segments of the Design-Build Period Work will be designed and built prior to the completion of the design of the Project as a whole. Although this Design-Build Contract does not require the Design-Builder to fully complete the entire design of the Project prior to proceeding with particular segments of the Construction of the Project, the DesignBuilder shall comply with all requirements of Applicable Law in performing the Design-Build Work and shall further comply with the design submittal requirements set forth in Section
6.7(C) (Town Review and Comment on Final Design Documents). (D) Construction Work Hours. Without limiting any other requirement hereunder, the Design-Builder shall not perform Construction work outside of the hours authorized for construction for such location under the applicable zoning and building bylaws and ordinances, municipal bylaws and regulations, and restrictive covenants for such location of the applicable Governmental Body with jurisdiction over such location (which may be the Town), or under any applicable Governmental Approvals, or on Sundays or holidays without specific permission from the applicable Governmental Body (which may be the Town). The parties acknowledge that compliance with the Project Schedule is critical, and the Town agrees to act reasonably and cooperate with the Design-Builder in an effort to accommodate reasonable Design-Builder requests to perform Construction work outside the hours specified in the preceding sentence to the extent consistent with Applicable Law. (E) Laydown Areas. Laydown and staging areas for construction materials required for the Design-Build Work shall be located off-Project Site at locations identified and provided by the Design-Builder and shall be identified in the Baseline Design Documents.
Without limiting any other requirement hereunder, all such laydown and staging areas for construction materials required for the Design-Build Work shall comply with all requirements of Applicable Law (including any applicable utility laydown yard ordinance) for such location of the applicable Governmental Body with jurisdiction over such location (which may be the Town).
(F) Design-Build Period Work Schedule and Reports. The initial DesignBuild Period Work Schedule shall be prepared in accordance with Appendices 2 and 5 during performance of the Preliminary Services. Throughout the Design-Build Period, the DesignBuilder shall further update and maintain the Design-Build Period Work Schedule in accordance with Appendix 5 (General Design-Build Work Requirements). The Design-Builder shall provide Monthly Progress Reports, which shall include updates to the Design-Build Period Work Schedule, in accordance with the requirements set forth in Section 4.9 (Monthly Progress Reports) and Appendix 5 (General Design-Build Work Requirements). The Design-Builder acknowledges and agrees that it has a material obligation to provide the Town with, and to 358
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update, maintain and revise, the Design-Build Period Work Schedule throughout the DesignBuild Period in accordance with the Contract Standards. (G) On-Site Meetings and Design and Construction Review. During the Design-Build Period, the Design-Builder, the Town and the Owner Representative shall conduct regular progress and management meetings as set forth in Appendix 5 (General Design-Build Work Requirements). Such meetings shall take place in a field office to be provided by the Design-Builder in accordance with Appendix 5 (General Design-Build Work Requirements) or as otherwise directed by the Town. The Monthly Progress Report shall be prepared by the Design-Builder and provided to the Town and the Owner Representative at least five days prior to each monthly meeting.
(H) Construction Utilities. The Design-Builder shall provide, make all arrangements necessary to secure the availability of all Utilities necessary for the performance of the Design-Build Work. The Design-Builder shall be responsible for the payment of all Utility bills in a timely manner in connection with all Design-Build Work performed from the issuance of the Notice to Proceed with Design-Build Period Work until the Substantial Completion Date.
(I) Quality Assurance and Quality Control. The Design-Builder shall have full responsibility for quality assurance and quality control for the Design-Period Work, including compliance with the Quality Management Plan. Without limiting any other requirement hereunder, the Design-Builder shall perform quality control inspection and testing services to confirm compliance with the Contract Standards. (J) Title and Risk of Loss. Title to the pipes, structures, improvements, fixtures, machinery, equipment and materials constituting the Project shall pass to the Town upon incorporation in the Project or payment therefor by the Town, whichever first occurs, free and clear of all Encumbrances as provided in subsection (K) of this Section. Except to the extent provided in Section 6.19(E) (Payment for Restoration Work and Uninsured Costs), however, the Design-Builder shall bear all risk of loss concerning such pipes, structures, improvements, fixtures, machinery, equipment and materials until the Substantial Completion Date, regardless of the extent to which the loss was insured or the availability of insurance proceeds. The procedures set forth in Section 6.19 (Property Damage During the Design-Build Period) shall be applicable in the event of any damage to, loss or the destruction of the DesignBuild Work at the Project. Notwithstanding anything set forth in this subsection (J) or Section
6.19 (Property Damage During the Design-Build Period), the Design-Builder shall bear all risk of loss concerning any pipes, structures, improvements, fixtures, machinery, equipment or materials required for the Design-Build Work and stored at any location other than the Project, regardless of whether the Town has paid for any such structures, improvements, fixtures, machinery, equipment or materials.
(K) Encumbrances. The Design-Builder shall not directly or indirectly create or permit to be created or to remain, and shall promptly discharge or bond any Encumbrance or Lien (other than Permitted Encumbrances) arising in relation to the Project or the DesignBuild Work. The Design-Builder’s Subcontracts with all materialmen, suppliers, and Subcontractors shall provide that the sole recourse for such materialmen, suppliers, and Subcontractors for non-payment shall be against the Payment Bond. (L) Notice of Default. The Design-Builder shall provide to the Town, promptly following the receipt thereof, copies of any notice of default, breach or noncompliance received under or in connection with any Governmental Approval, Subcontract, Security Instrument or other transaction agreement pertaining to the Contract Obligations. 359
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(M) Required Project Manager Certification. Any notice, certification, report or application delivered by the Design-Builder to the Town in connection with the Design-Build Work, or payment therefor, under this Article 6, Article 8 (Substantial Completion and Final Completion), Article 9 (Contract Compensation) or any Appendix relating to the performance of the Design-Build Work shall be accompanied by a signed certificate of the Project Manager affirming the accuracy thereof to the best of his or her knowledge. The form of certification required pursuant to this subsection (M) shall comply with all requirements of Applicable Law. (N) Partnering Requirements. The Design-Build Work shall be subject to the Town’s formal partnering requirements, as set forth in Appendix 5 (General Design-Build Work Requirements).
(O) Temporary Project Sites Facilities. The Design-Builder shall be responsible for ensuring that adequate temporary facilities are provided as necessary to enable Subcontractors to perform their work and that provisions have been made for all Project Sites facilities necessary for the Design-Builder to manage, inspect and supervise the Design-Build Work, including all facilities and services the cost of which constitutes a General Conditions Cost.
(P) Sensitivity to Stakeholders. It is the intention of the Town to be sensitive to the needs and concerns of the stakeholders, including the residents of the Town. It is the Design-Builder’s responsibility to adhere to this intent to the best of its ability and in accordance with the approved Stakeholder Outreach Plan to be developed as part of the Phase 1b Preliminary Services. The Design-Builder shall, whenever possible, address stakeholder inquiries about the Project in coordination with the Town, provide to citizens lodging complaints the names and numbers of the Town personnel with whom they can follow up (as provided by the Town), immediately inform the Town of any citizen complaints, and provide for continuous access to all private property affected by the Design-Build Work. (Q) Utility Coordination and Relocation. The parties acknowledge the existence of underground Utility facilities along the alignment of the Project. The DesignBuilder shall use good faith efforts to prepare a design that avoids or minimizes conflicts with existing Utility facilities to the extent practicable. The Design-Builder is responsible for coordination with the Utilities and implementing the measures identified in the Utility Relocation Plan developed by the Design-Builder as part of the Phase 1b Preliminary Services and approved by the Town. Such measures shall be carried out in a manner which will avoid or minimize any delays to the Project. In undertaking excavation and tunneling, the DesignBuilder shall comply with California Government Code Section 4216 et seq. Prior to conducting any excavation or trenching, the Design-Builder shall contact the appropriate regional notification center as required by California Government Code Section 4216 et seq.
Since the Design-Builder is performing the engineering design work for the Project and the Town is not preparing and providing detailed plans and specifications to the Design-Builder, the parties acknowledge and agree that California Government Code Section 4215 (concerning potential Town responsibility for the removal, relocation or protection of existing main or trunkline Utility facilities) does not apply to the Design-Build Work. The Design-Builder shall provide all Utilities with reasonable notification of the need for the Utility to adjust or relocate any facilities. With respect to Utilities identified in the Utility Relocation Plan prepared as part of the Phase 1b Preliminary Services, such Utilities shall be notified promptly following the finalization of the draft Utility Relocation Plan pursuant to Appendix 2 (Preliminary Services) and in any event shall be provided a minimum of [_____] days’ notice of the need for the relocation. With respect to Utilities discovered following the commencement of the Construction work, the Design-Builder shall notify the Town of the need for the Utility relocation and shall meet with the Town to discuss potential “work arounds” so as to minimize any schedule disruption and associated additional costs. If the parties agree that the best course of action is to seek a Utility relocation, the Design-Builder shall notify the Utility on 360
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behalf of the Town of the required action. In the event that a Utility is uncooperative or notifies the Design-Builder that it is unable to comply with the notice provided by the Design-Builder, the Design-Builder shall immediately notify the Town so that the Town can exercise any legal rights it may have. To the extent that the discovery of the need for the Utility relocation constitutes a Differing Site Condition, the Design-Builder shall be entitled to Uncontrollable Circumstance relief pursuant to Section 6.3(D) (Relief for Differing Site Conditions); provided, however, that the Design-Builder shall not be entitled to recover costs associated with a delay for the first [_____] days of delay caused by the need for a Utility relocation.
SECTION 6.2. CONSTRUCTION COMMENCEMENT DATE.
(A) Construction Commencement Date Generally. Except with respect to Early Work Packages as provided in Section 5.6 (Early Work Packages) and except as authorized in a Limited Notice to Proceed as provided in Section 6.1(A)(2) (Limited Notice to Proceed), in no event shall the Design-Builder commence with the Construction of the Project prior to the “Construction Commencement Date”. The Construction Commencement Date shall not occur prior to the satisfaction of the following “Construction Commencement Date Conditions,” each of which must be and remain satisfied as of the Construction Commencement Date:
(1) The Design-Builder shall have certified that it has completed all Preliminary Services and pre-construction requirements set forth in Appendix 5 (General Design-Build Work Requirements) and shall have provided the Town with an updated Design-Build Period Work Schedule in accordance with Appendix 5 (General Design-Build Work Requirements) and the Health and Safety Plan. (2) The Design-Builder shall have satisfied all requirements of Applicable Law with respect to the commencement of construction and all Governmental Approvals and Non-Governmental Approvals set forth in Appendix 3 (Governmental and NonGovernmental Approvals) and as otherwise required for the commencement of the Construction of the Project (unless waived by the Town) shall have been obtained, and the Design-Builder shall have provided copies of all Design-Builder Managed Governmental Approvals and Design-Builder Managed Non-Governmental Approvals to the Town. All such Governmental and Non-Governmental Approvals shall be in full force and effect.
(3) The Design-Builder shall have provided the Town with certificates for all Required Insurance in accordance with Section 13.1 (Insurance) and certified that all such policies are in full force and effect and in compliance with the requirements of Section 13.1 (Insurance) and Appendix 10 (Insurance Requirements). (4) The Design-Builder shall have complied with the design submittal requirements set forth in Section 6.7(C) (Town Review and Comment on Final Design Documents) to the extent necessary to commence with the Construction of the Project. (5) The Design-Builder shall have held pre-construction conferences with the Town and its representatives in accordance with Appendix 5 (General Design-Build Work Requirements).
(6) The Design-Builder shall have provided the Town with the Performance Bond and the Payment Bond in accordance with Section 5.6(A) (Early Work Packages), Section 5.8(I) (Performance Bond and Payment Bond) and Section 16.1 and certified that such bonds are in full force and effect and in compliance with the requirements of Section 16.1 (Bonds).
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(7) The Town has acquired all easements or rights of way necessary for the Design-Builder to construct the Project.
(8) The Design-Builder shall have received written notice from the Town that the Town has received satisfactory evidence of the binding commitments from the California Department of Housing and Urban Development and the Division of Financial Assistance of the California State Water Resources Control Board regarding the availability of Grant funding.
The foregoing requirements are in addition to any other preconditions to the commencement of Construction established by the Contract Documents.
(B) Establishment of the Construction Commencement Date. In no event shall the Construction Commencement Date be established prior to the satisfaction of the Construction Commencement Date Conditions. The Design-Builder shall provide 10 days’ written notice to the Town as to the satisfaction of the Construction Commencement Date Conditions and the date it proposes to establish as the Construction Commencement Date hereunder. The Town shall issue the Notice to Proceed with Design-Build Period Work on the Construction Commencement Date proposed by the Design-Builder upon satisfaction of the Construction Commencement Date Conditions. In the event the Town determines that the Construction Commencement Date Conditions have not been satisfied, notwithstanding the Design-Builder’s notice pursuant to this subsection, the Town Contract Representative, by written notice to the Design-Builder delivered not later than three days prior to the Construction Commencement Date proposed by the Design-Builder, shall notify the DesignBuilder of the Town’s determination and state which conditions have not been satisfied.
Without limiting any of the foregoing, the Town, in its discretion, may waive (in writing) a Construction Commencement Date Condition or issue a Limited Notice to Proceed as set forth in Section 6.1(A)(2) (Limited Notice to Proceed) above. (C) Effect of the Establishment of the Construction Commencement Date.
Upon the issuance by the Town of the Notice to Proceed establishing the Construction Commencement Date, the Design-Builder shall have the right to proceed with the Construction of the Project. Absent the occurrence of Uncontrollable Circumstances (including a delay by the Town in obtaining Grant funding or obtaining Town Managed Governmental Approvals beyond those time periods or dates set forth in the Design-Builder’s critical path schedule previously approved by the Town as and to the extent provided in this Design-Build Contract, no delay in the establishment of the Construction Commencement Date shall entitle the Design-Builder to any price, schedule or performance relief hereunder.
SECTION 6.3. DIFFERING SITE CONDITIONS.
(A) Preliminary Services Relating to Differing Site Conditions. The DesignBuilder shall review all available information and undertake all soils, groundwater, utility locations, facilities and other site conditions investigations required with respect to the Project Sites as required by the Preliminary Services, and shall furnish the Town with the reports identified in Appendix 2 (Preliminary Services).
(B) Commencing Subsurface Excavations. Prior to commencing any trenching or excavations, the Design-Builder shall, taking into account the information in the Reference Documents and reports developed as part of the Preliminary Services and in compliance with Good Engineering and Construction Practice, conduct further site investigations in accordance with Appendix 5 (General Design-Build Work Requirements), including exploratory excavations and further borings, to confirm the location and type of underground structures that could be damaged as a result of the excavations. Such underground structures include, but are not limited to, all sewer, water, gas, and other piping, 362
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and manholes, chambers, electrical conduits, wires, tunnels and other existing subsurface work located within or adjacent to the Project Sites. The Design-Builder shall carefully sustain in their places and support, or if necessary relocate or causes to be relocated, all underground and surface structures located within or adjacent to the Project Sites and as required by the party owning or controlling such structure. Existing surface facilities which are temporarily removed to facilitate installation of the Design-Build Work shall be replaced and restored to their original condition. The Design-Builder shall notify the Town at least five Business Days in advance of any work that might impact utilities of business or residents in the area surrounding the Project Sites so that the Town can notify such businesses or residents of such work. As set forth in Section 6.1(Q) (Utility Coordination and Relocation), the Design-Builder shall comply with all requirements set forth under Applicable Law, including California Government Code Section 4216 et seq. prior to and during undertaking such excavations or tunneling.
(C) Discovery of Differing Site Conditions. Upon discovering an alleged Differing Site Condition and before the condition is further disturbed, the Design-Builder shall immediately, after taking appropriate measures to secure the affected Design-Build Work:
(1) stop work in and secure the affected area; and (2) notify the Town of the alleged Differing Site Condition. The Design-Builder’s notice to the Town shall be issued by telephone or in person and followed no later than by the end of the next Business Day thereafter by written notice, providing a brief description of why the condition encountered is considered a Differing Site Condition. Promptly upon receipt of the Design-Builder’s notice, the Town will investigate the Project Site conditions. Such notice shall describe the specific ground conditions encountered and the measures taken to deal with the ground conditions. Notwithstanding anything set forth in Section 6.3 (Differing Site Conditions) or in Article 14 (Uncontrollable Circumstances), no Uncontrollable Circumstance relief shall be allowed for any alleged Differing Site Condition unless the Design-Builder provides the Town with notice in accordance with this subsection.
(D) Relief for Differing Site Conditions. If the Design-Builder establishes that the actual conditions encountered during Construction: (1) meet the criteria for a Differing Site Condition, and (2) directly and materially impact the Design-Builder’s cost or time of performance, then the Design-Builder shall be entitled to Uncontrollable Circumstance relief as and to the extent provided in Section 14.4 (Schedule Relief and Related Price Relief). The Design-Builder shall not be provided relief for any conditions of which it should have been aware.
SECTION 6.4. REGULATED SITE CONDITIONS.
(A) Design-Builder Responsibilities. The parties recognize that in performing the Design-Build Work, the Design-Builder may encounter various Regulated Site Conditions.
In performing the Design-Build Work, the Design-Builder shall exercise due care, in light of all relevant facts and circumstances, to avoid exacerbating any Regulated Site Condition after the location and existence of such Regulated Site Condition has been disclosed to the DesignBuilder or becomes actually known by the Design-Builder through Preliminary Services or physical observation. Notwithstanding anything to the contrary in this Section, the DesignBuilder shall bear full responsibility for the handling, treatment, storage, removal, remediation, avoidance, or other appropriate action (if any), with respect to:
(1) Any Regulated Substance present at, on, in or under, or migrating or emanating to or from the Project Sites, that was generated by or brought or caused to be brought on the Project Sites by any act or omission of the Design-Builder or any Subcontractor; and
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(2) The creation of any Regulated Site Condition due to Design-Builder Fault, or the exacerbation of any Regulated Site Condition due to Design-Builder Fault once the location and existence of such Regulated Site Condition becomes actually known to the Design-Builder.
All remediation costs resulting from Regulated Substances or Regulated Site Conditions for which the Design-Builder bears responsibility pursuant to this subsection (A) shall constitute Unallowable Costs borne solely by the Design-Builder. The Design-Builder shall indemnify, defend and hold harmless the Town Indemnitees in accordance with and to the extent provided in Article 15 (Indemnification) from and against all Loss-and-Expense resulting from Regulated Substances or Regulated Site Conditions for which the Design-Builder bears responsibility pursuant to this subsection (A).
(B) Cultural Resources. The Design-Builder shall not remove or disturb, or cause to be removed or disturbed, any historical, archaeological, architectural, or other cultural artifacts, relics, vestiges, remains, or objects of antiquity. If the Design-Builder discovers any of these items, the Design-Builder shall immediately notify the Town Contract Representative and comply with the Archaeological Construction Monitoring, Mitigation and Preservation Plans and all Applicable Law.
(C) Endangered Species. Should either threatened or endangered plant or animal species (as determined under Applicable Law) be encountered in the performance of the Design-Build Work, the Design-Builder shall cease work immediately in the area of encounter, notify the Town Contract Representative and comply with all Applicable Law. The DesignBuilder shall not resume Design-Build Work in the affected area until authorized to do so by the Town Contract Representative.
(D) Encountering of Regulated Substances. If the Design-Builder encounters any materials or substances at the Project Site that it reasonably believes to be Regulated Substances, it shall immediately notify the Town and comply with the Contaminated Media Management Plan and all Applicable Law.
(E) Uncontrollable Circumstance Relief. Without limiting the DesignBuilder’s obligations under subsection (D) of this Section, if the Design-Builder establishes that the actual conditions encountered during Construction:
(1) Meet the criteria for Regulated Site Conditions;
(2) Directly and materially impact the Design-Builder’s cost or time of performance; and
(3) Were not known or could not have been reasonably discovered through the Design-Builder’s performance of the Preliminary Services including the preparation of the Archaeological Construction Monitoring, Mitigation and Preservation Plans and the Contaminated Media Management Plan, review of Reference Documents or reasonable diligence;
then the Design-Builder shall be entitled to Uncontrollable Circumstance relief as and to the extent provided in Article 14 (Uncontrollable Circumstances). The Design-Builder acknowledges that the Reference Documents and Preliminary Services have identified the presence of Regulated Substances on the Project Sites and the Base Guaranteed Maximum Price is intended to include all costs associated with such identified Regulated Substances. No Uncontrollable Circumstance relief will be granted due to the presence of Regulated Substances that were disclosed to the Design-Builder as of the Baseline Date. 364
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(F) Generator Liability. Nothing contained herein is intended to identify the Design-Builder as the generator of any pre-existing Regulated Substance, except as provided by Applicable Law. Except with respect to those Regulated Substances identified in subsection (A) of this Section as to which the Design-Builder bears responsibility, the Town shall execute, as generator, Hazardous Waste manifests required in order for the Design-Builder to fulfill its obligations under this Section, as and to the extent required under Applicable Law.
SECTION 6.5. PERMITTING RESPONSIBILITIES AND SCHEDULE.
(A) Design-Builder Governmental and Non-Governmental Approval Responsibility Generally. The Design-Builder shall obtain and maintain all Design-Builder Managed Governmental Approvals and all Design-Builder Managed Non-Governmental Approvals necessary to commence, continue and complete the Design-Build Work and achieve Substantial Completion. In connection therewith, the Design-Builder shall:
(1) Prepare and complete all required filings, applications and reports; (2) Develop and furnish all necessary data, information, plans, documentation and supporting material;
(3) Familiarize itself with all applicable terms and conditions; (4) Attend all required meetings and hearings;
(5) Pay all required permit and filing fees; and
(6) Take all other action necessary in obtaining, maintaining, renewing, extending and complying with the terms of all Design-Builder Governmental and NonGovernmental Approvals.
The Design-Builder shall be responsible for identifying, obtaining and maintaining any Governmental and Non-Governmental Approvals required for the performance of the DesignBuild Work that are not the Town Managed Governmental Approvals. (B) Application Process. The Town shall be notified by the Design-Builder prior to any application, data submittal, or other communication by the Design-Builder with any Governmental Body regarding Governmental Approvals. The Design-Builder shall not knowingly take any action in any application, data submittal or other communication with any entity regarding Governmental or Non-Governmental Approvals or the terms and conditions thereof that would impose any unreasonable cost or unreasonable burden on the Town or that would materially contravene any Town policies with respect to the matters contained therein.
The Town reserves the right, after reasonable notification and consultation with the DesignBuilder, to modify, alter, amend, delete or supplement any information supplied, or term or condition proposed, by the Design-Builder which would have the effect described in the preceding sentence. The final terms and conditions of any Governmental Approval and NonGovernmental Approval shall be subject to the Town’s approval, which approval shall not be unreasonably withheld or delayed. The Design-Builder shall deliver to the Town, promptly after the Design-Builder’s receipt, a copy of each Governmental Approval and NonGovernmental Approval, and shall provide a listing of the status of all Governmental Approvals and Non-Governmental Approval in its Monthly Progress Report. (C) Town Managed Governmental Approval Responsibility. The Town shall:
(1) Be responsible for obtaining the Town Managed Governmental Approvals, subject to the Design-Builder’s obligations under subsection (D) of this Section; 365
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(2) Cooperate with and, upon the reasonable request of the Design-Builder, provide reasonable assistance to the Design-Builder in obtaining from Governmental Bodies the Design-Builder Governmental Approvals (including any modifications, renewals and extensions of existing Design-Builder Governmental Approvals from Governmental Bodies) required to be obtained by the Design-Builder under this Section; (3) Where necessary to obtain, renew, replace, extend the validity of, or arrange necessary amendments to any Governmental Approval and within a reasonable period of time after being requested to do so by the Design-Builder:
(a) Execute Governmental Approval application and related documents, either in its own name or jointly with the Design-Builder, as and to the extent required under Applicable Law or the administrative practices of the applicable Governmental Body;
(b) Provide for attendance by appropriate Town staff at public hearings and meetings of applicable Governmental Bodies; and (c) Provide the Design-Builder with existing relevant data and documents that are within the Town’s custody or control or are reasonably obtainable by the Town and which are reasonably required for such purpose.
To the extent Applicable Law or the administrative practice of the applicable Governmental Body requires that Governmental Approvals that are required to be obtained by the DesignBuilder pursuant to this Section be applied for or issued in the Town’s name or that the Town directly coordinates with such Governmental Bodies, the Design-Builder shall, at its own cost and expense, provide all necessary support and efforts to apply for and obtain such Governmental Approvals, including preparing all application and related documents for execution by the Town. The Town’s obligation to assist and cooperate pursuant to this Section shall be subject to the Design-Builder’s obligations under this Section and shall not require the Town to:
(1) Staff the Design-Builder’s permitting or development efforts, to undertake any new studies or investigations with respect to the Project, or to affirmatively seek to obtain the issuance of the Governmental Approvals required to be obtained by the Design-Builder hereunder;
(2) Take a position which it believes to be inconsistent with the Contract Documents, the Contract Standards, or the Town policy (except policies that are incompatible with the contracting methodology associated with this Design-Build Contract or are inconsistent with the express obligations of the Town hereunder); (3) Take a position that is not usual and customary for the Town to take in addressing similar circumstances affecting its own projects (except for usual and customary arrangements that are incompatible with the contracting methodology associated with this Design-Build Contract or are inconsistent with the express obligations of the Town hereunder); and
(4) Refrain from concurring with a position taken by Governmental Body if the Town believes that position to be correct.
(D) Design-Builder Responsibility For the Town Managed Governmental Approvals and Town Managed Non-Governmental Approvals. In connection with the Town Managed Governmental Approvals and the Town Managed Non-Governmental Approvals, the Design-Builder shall cooperate with and assist the Town in carrying out any of the Town’s 366
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responsibilities hereunder with respect to the Town Managed Governmental Approvals and the Town Managed Non- Governmental Approvals, including:
(1) Preparing and completing all required filings, applications and reports; (2) Developing and furnishing all necessary data, information, plans, documentation and supporting material;
(3) Familiarizing itself with all applicable terms and conditions; (4) Attending all required meetings and hearings; and
(5) Take all other action reasonably necessary in accordance with Good Engineering and Construction Practice to assist the Town in obtaining, complying with, maintaining, renewing, and extending all of the Town Managed Governmental Approvals and the Town Managed Non-Governmental Approvals.
(E) No Relief for Delays or Conditions in Design-Builder Managed Governmental Approvals or Design-Builder Managed Non-Governmental Approvals. The parties acknowledge that the Town is taking responsibility for the Town Managed Governmental Approvals and the Town Managed Non-Governmental Approvals and as such, is taking responsibility for obtaining most, if not all, environmental permits for the Project and that the Design-Builder is taking responsibility for the Design-Builder Managed Governmental Approvals and the Design-Builder Managed Non-Governmental Approvals and as such, is taking responsibility for obtaining routine construction permits. Therefore, the Design-Builder will not be afforded schedule or price relief in the event of any delay in the issuance of a Design-Builder Managed Governmental Approval or a Design-Builder Managed NonGovernmental Approval or such Design-Builder Managed Governmental Approval or DesignBuilder Managed Non-Governmental Approval imposes unanticipated terms and conditions. (F) Adjustment to Scheduled Substantial Completion Date Based on Delays in Obtaining Town Managed Governmental Approvals or Town Managed Non-Governmental Approvals. In the event any delay in the issuance of a Town Managed Governmental Approval or a Town Managed Non-Governmental Approval materially delays the achievement of Substantial Completion, an Uncontrollable Circumstance shall be deemed to have occurred and the Design-Builder shall be entitled to an adjustment to the Scheduled Substantial Completion Date as and to the extent provided, and upon compliance with the procedures set forth in Article 14 (Uncontrollable Circumstances), except to the extent the Design-Builder fails to comply with its obligations with respect thereto under this Section, under the Governmental and Non-Governmental Approvals Table, or under Section 17.9 (General Duty to Mitigate).
Schedule relief shall be granted under this subsection only if the delay in issuance of a Town Managed Governmental Approval or a Town Managed Non-Governmental Approval materially affects the Design-Build Schedule’s critical path. In the event any such delay constitutes an Uncontrollable Circumstance, the Design-Builder shall be entitled to a Base Guaranteed Maximum Price Adjustment as and to the extent set forth in Article 14 (Uncontrollable Circumstances).
(G) Relief Based on Certain Permitting Terms and Conditions. In the event that a Governmental Body imposes terms and conditions in connection with a Town Managed Governmental Approval following the execution of the GMP Amendment that require material changes to the Technical Specifications or the Substantial Completion Standards, an Uncontrollable Circumstance shall be deemed to have occurred and the Design-Builder shall be entitled to a Base Guaranteed Maximum Price Adjustment as and to the extent provided in Article 14 (Uncontrollable Circumstances).
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SECTION 6.6. INTERFACE AND COORDINATION WITH OTHER ENTITIES.
As set forth in Section 6.5(C) (Town Managed Governmental Approval Responsibility), the Town is responsible for obtaining the Town Managed Governmental Approvals and the Town Managed Non-Governmental Approvals and may require assistance and cooperation from the Design-Builder in connection with the Town’s efforts in obtaining, complying with, maintaining, renewing, and extending all of such approvals from the following entities:
(A) City of Chico. The parties acknowledge that the Town has entered into the Inter-Municipal Agreement with the City of Chico that defines the procedures and terms and conditions for the Town’s use of the Chico Sanitary Sewer System at the connection to the Chico WPCP. The Design-Builder shall cooperate with and assist the Town in carrying out any of the Town’s responsibilities under the Inter-Municipal Agreement. The Design-Builder shall perform the Contract Services in a manner that does not violate the Inter-Municipal Agreement. If in the performance of the Contract Services hereunder it becomes necessary for the Design-Builder to coordinate any of its activities with the City of Chico, the Design-Builder shall only interface with the City of Chico with the prior approval and participation of the Town.
(B) Butte County. The parties acknowledge that Construction of the Project requires coordinate with Butte County. If in the performance of the Contract Services hereunder it becomes necessary for the Design-Builder to coordinate any of its activities with Butte County, the Design-Builder shall only interface with Butte County with the prior approval and participation of the Town.
(C) UPRR. The parties acknowledge that Construction of the Project requires a Non-Governmental Approval from UPRR for the UPRR crossing. If in the performance of the Contract Services hereunder it becomes necessary for the Design-Builder to coordinate any of its activities with UPRR, the Design-Builder shall only interface with UPRR with the prior approval and participation of the Town.
(D) Caltrans. The parties acknowledge that Construction of the Project requires a Non-Governmental Approval from Caltrans for the Highway 99 crossing. If in the performance of the Contract Services hereunder it becomes necessary for the Design-Builder to coordinate any of its activities with Caltrans, the Design-Builder shall only interface with Caltrans with the prior approval and participation of the Town.
SECTION 6.7. FINAL DESIGN RESPONSIBILITIES AND RISK ASSUMPTION. (A) Performance of the Design Work. Following the issuance of the Notice to Proceed with Design-Build Period Work, the Design-Builder agrees to undertake, perform, and complete the designs and plans for the Project in accordance with the Contract Standards and to prepare all Final Design Documents necessary or appropriate to carry out and complete the Design-Build Period Work. All Design-Builder working design documents and Final Design Documents shall comply with the Baseline Design Documents and shall provide that the Project is constructed to a standard of quality, integrity, durability and reliability which is equal to or better than the standard established by the Baseline Design Documents. The Design-Builder shall be responsible for the professional quality, technical accuracy, timely completion and coordination of all Final Design Documents and shall, without additional compensation, correct or revise any errors, omissions or other deficiencies in the Baseline Design Documents or the Final Design Documents.
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(B) Sole Responsibility and Liability. The Design-Builder shall have the sole and exclusive responsibility and liability for the design, construction, and performance capability of the Project hereunder in accordance with the Contract Standards, (1) notwithstanding the fact that the RFQ included certain design criteria, requirements and performance standards for the Design-Build Work, and (2) the Town’s role in defining the nature and extent of the Preliminary Services, reviewing and commenting on the Preliminary Services Deliverable Material, and negotiating and agreeing upon the GMP Amendment. The Design-Builder acknowledges that, in the RFQ process, the performance of the Preliminary Services, the delivery of the GMP Submittal and the negotiation of the GMP Amendment, the Design-Builder had the unrestricted right and opportunity not to submit its Statement of Qualifications and not to execute this Design-Build Contract or the GMP Amendment if the Design-Builder had determined that such design criteria and requirements or the establishment of the Contract Standards would in any manner or to any degree impair the Design-Builder’s ability to perform the Design-Build Work in compliance herewith. Without limiting the Design-Builder’s right to claim relief in the event of Uncontrollable Circumstances as and to the extent provided in this Design-Build Contract, all risks relating to the design, construction and performance capability of the Project, including all risks of design defects, constructability and efficacy, have been transferred to the Design-Builder under this DesignBuild Contract. (C) Town Review and Comment on Final Design Documents. The Town shall have the right to review and comment on all Final Design Documents within the time frames specified in Appendix 7 (Design-Build Work Review Procedures) in order to confirm the compliance and consistency of the Final Design Documents with the Contract Documents. In no event shall the Design-Builder proceed with the Construction of any particular segment of the Design-Build Work without first complying with the requirements of Appendix 7 (DesignBuild Work Review Procedures). The Design-Builder shall give due consideration and provide written responses, in the time and manner provided in Appendix 7 (Design-Build Work Review Procedures), to any comments delivered by the Town or its representatives as to the DesignBuilder’s design submittals. Neither compliance by the Design-Builder with the Baseline Design Documents, nor review and comment by the Town or the Owner Representative on the Design-Builder’s Preliminary Design Documents or Final Design Documents, nor any failure by the Town or the Owner Representative to comment on any design submittals shall in any way relieve the Design-Builder of full responsibility for the design, construction and performance capability of the Project, as demonstrated through the Substantial Completion Test, in accordance with the Contract Standards. The parties acknowledge and agree that the review and comment rights of the Town under this subsection (C) are intended for the informational purposes of the Town and for the Town to determine whether the Final Design Documents comply with the Baseline Design Documents.
(D) Documents at the Project Site. The Design-Builder shall maintain at the Project Site all Final Design Documents, including a complete set of record drawings, in accordance with the Contract Standards. These documents shall be available to the Town for reference, copying and use, and a complete set thereof shall be delivered to the Town upon completion of the Design-Build Work.
SECTION 6.8. CHANGES TO THE BASELINE DESIGN DOCUMENTS AT DESIGN-BUILDER REQUEST.
(A) Town Consent Required. The Design-Builder acknowledges the Town’s material interest in each provision of the Baseline Design Documents, and agrees that, subject to Section 6.9 (Other Changes to the Baseline Design Documents), no material change to the Baseline Design Documents shall be made except with the consent of the Town, which may be withheld or conditioned in its discretion. Any such changes shall be evidenced by a Contract Amendment or Change Order, as applicable.
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(B) Notice and Information as to Proposed Change. Without limiting anything under subsection (A) of this Section, the Design-Builder shall give the Town written notice of, and reasonable opportunity to review and approve, any Baseline Design Requirements Change proposed to be made at the Design-Builder’s request. The notice shall contain sufficient information for the Town to determine that the proposed Baseline Design Requirements Change:
(1) Does not diminish the capacity of the Project to be operated so as to meet the Contract Standards;
(2) Does not impair the quality, integrity, durability and reliability of the Project;
(3) Is reasonably necessary or is advantageous for the Design-Builder to fulfill its obligations under this Design-Build Contract; and (4) Is feasible.
SECTION 6.9. OTHER CHANGES TO THE BASELINE DESIGN
DOCUMENTS.
(A) Changes Made Due to Uncontrollable Circumstances. Upon the occurrence of an Uncontrollable Circumstance after the GMP Amendment Date, the DesignBuilder shall promptly proceed, subject to the terms, conditions and procedures set forth in Article 14 (Uncontrollable Circumstances) and subject to the Town’s approval, to make or cause to be made all Baseline Design Requirements Changes reasonably necessary to address the Uncontrollable Circumstance. The Design-Builder shall consult with the Town concerning possible means of addressing and mitigating the effect of any Uncontrollable Circumstance.
The parties shall use all reasonable efforts to address Baseline Design Requirements Changes required due to Uncontrollable Circumstances in a manner that will not impact the critical path of planned Design-Build Work in the Design-Build Period Work Schedule. The DesignBuilder shall be entitled to schedule and price relief resulting from any such Baseline Design Requirements Change to the extent provided in Article 14 (Uncontrollable Circumstances).
Without limiting the right of the Town to issue a Work Change Directive under Section 6.11 (Work Change Directives), any Baseline Design Requirements Change made on account of Uncontrollable Circumstances, and any related change in the terms and conditions of the Contract Documents, shall be reflected in a Change Order. (B) Changes Required by Governmental Bodies. The parties recognize that a Governmental Body may impose terms and conditions in connection with a Governmental Approval after the issuance of the Notice to Proceed with Design-Build Period Work that require a Baseline Design Requirements Change. In the event of the imposition of any such additional terms and conditions imposed by a Governmental Body, the Design-Builder shall promptly proceed, subject to the Town’s approval, to make or cause to be made all Baseline Design Requirements Changes reasonably necessary to comply with such additional terms and conditions, or the Town may elect to contest any such additional terms and conditions if such terms and conditions are not acceptable to the Town; provided that, if such contest by the Town delays the performance of the Design-Build Work, the Design-Builder shall be entitled to Uncontrollable Circumstance relief as and to the extent provided in Article 14 (Uncontrollable Circumstances). As set forth in Section 6.5(G) (Relief Based on Certain Permitting Terms and Conditions), the Town shall bear the risk of the imposition of any such additional terms and conditions imposed by a Governmental Body in connection with a Governmental Approval.
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change in the terms and conditions of this Design-Build Contract shall be reflected in a Change Order.
(C) Changes Required by the Town. The Town shall have the right to require the Design-Builder to make Baseline Design Requirements Changes at any time prior to Final Completion in its discretion for any reason whatsoever, whether and however the exercise of such rights affects this Design-Build Contract so long as the Design-Builder’s rights are protected as provided in this subsection (C). The Design-Builder shall be entitled to a Change Order providing appropriate price, schedule, performance and other relief in the event of a Baseline Design Requirements Change made at the direction of the Town under this subsection (C); provided, however, that the Design-Builder shall not be entitled to any such price, schedule, performance or other relief to the extent that any such Baseline Design Requirements Change is required due to Design-Builder Fault. The Town shall have no obligation to make any Baseline Design Requirements Change on account of its rights under this subsection (C).
SECTION 6.10. CHANGE PROCEDURES.
(A) Generally. The sole means of providing for an adjustment to the Scheduled Substantial Completion Date, the Contract Compensation or a Base Guaranteed Maximum Price Adjustment, or any other price, performance or schedule relief under this Design-Build Contract shall be through the issuance of a Change Order or Work Change Directive. All work authorized or modified pursuant to a Change Order shall constitute DesignBuild Work hereunder and shall be completed in accordance with the Contract Standards.
Each Change Order shall be specific and final as to prices and extensions of time with no reservations or other provisions allowing for future additional money or time as a result of the particular changes identified and fully compensated in the Change Order, except as provided in subsection (C) of this Section with respect to actual costs subject to Cost Substantiation. Price determinations associated with Change Orders and Work Change Directives shall be made in accordance with Section 9.7 (Changes in Design-Build Price). The Design-Builder is not authorized to proceed with any contemplated change in the Design-Build Work prior to the Design-Builder’s receipt of a Change Order or Work Change Directive. (B) Design-Builder Change Order Proposal. The Town Contract Representative may, in anticipation of possibly issuing a Change Order, request the DesignBuilder to prepare a proposal of cost and time to perform the contemplated changes in the Design-Build Work, along with any other proposed changes to this Design-Build Contract. The Design-Builder’s written proposal shall be prepared in accordance with the Contract Standards on a proposal request form approved by the Town Contract Representative and shall be transmitted to the Town Contract Representative promptly, but not later than seven days (unless the Town Contract Representative agrees to a longer duration, in writing) after the Design-Builder’s receipt of the Town Contract Representative’s written request, and shall remain a firm offer for a period not less than 15 Business Days after receipt thereof by the Town Contract Representative, unless the parties agree to a longer duration, in writing. (C) Negotiation of Proposed Change Order. The Design-Builder shall consult with the Town and the Owner Representative concerning possible means of addressing any proposed Change Order, and the Design-Builder and the Town shall cooperate in order to minimize any delay and lessen any additional cost associated with the Change Order. The Town may negotiate the written proposal delivered pursuant to subsection (B) of this Section.
If the Town accepts such written proposal without adjustment to its terms, the Town may issue a Change Order for the written proposal within the firm-offer period specified in subsection (B) of this Section, and the parties’ signing of the written proposal shall be deemed equivalent to signing the Change Order. Change Orders may provide for a Base Guaranteed Maximum Price Adjustment based on (1) unit prices included in the GMP Amendment or otherwise agreed to by 371
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the parties; (2) negotiated lump sum pricing; (3) actual costs subject to Cost Substantiation in accordance with Section 9.8 (Interest on Overdue Obligations); or (4) a combination of the foregoing. A Change Order that reduces the scope of the Design-Build Work shall provide for a Base Guaranteed Maximum Price Adjustment reducing the Guaranteed Maximum Price, as determined in the same manner as provided for any increase to the Guaranteed Maximum Price. Except as otherwise directed by the Town pursuant to Section 6.14 (Suspension of Work), the Design-Builder shall, pending the negotiation of any Change Order, diligently proceed with the performance of all Design-Build Work not subject to such proposed Change Order.
(D) Effect of Design-Builder’s Signature. The signing of a Change Order by the Design-Builder indicates the Design-Builder’s acceptance and approval thereof, including any adjustment to the Scheduled Substantial Completion Date or the Contract Compensation or other price, performance or schedule relief or change provided for therein. The signing of any Change Order by the Design-Builder shall constitute an acknowledgement and agreement that:
(1) Any compensation paid in conjunction with the terms of a Change Order shall comprise the total compensation due the Design-Builder for the work or the change defined in the Change Order;
(2) The stipulated compensation includes all payment for the Design-Build Work authorized by the Change Order, including all payment for the interruption of schedules, stop work orders, extended overhead, delay, or any other impact, claim or ripple effect;
(3) The Change Order constitutes full accord and satisfaction for the change in the Design-Build Work;
(4) The Design-Builder reserves no right to pursue any subsequent claim concerning the Change Order; and
(5) All necessary amendments to this Design-Build Contract, including all necessary Baseline Design Requirements Changes, are reflected in the Change Order and no subsequent claim or amendment to the Contract Documents will arise out of or as a result of the Change Order.
SECTION 6.11. WORK CHANGE DIRECTIVES.
(A) Town Right to Issue. The parties intend to negotiate the terms of any Change Order providing for a Baseline Design Requirements Change prior to the DesignBuilder incurring any costs with respect to any such change or adjustment. However, notwithstanding the foregoing, the Town shall have the right to issue a written order directing a Baseline Design Requirements Change or other change to the Design-Build Work pursuant to this subsection (A), which order shall specify any appropriate price, performance or schedule relief, if any, associated with any such change (a “Work Change Directive”). No Work Change Directive shall be made that would be contrary to Applicable Law. Upon receipt of a Work Change Directive, the Design-Builder shall promptly proceed with the performance of any change in the Design-Build Work as instructed and shall promptly advise the Town in writing of the Design-Builder’s agreement (or disagreement) with any price, performance or schedule relief, if any, as may be proposed by the Town in the Work Change Directive. If the DesignBuilder receives a written communication signed on behalf of the Town, which the DesignBuilder believes is a Work Change Directive that is not so identified, it shall not proceed with the purported change in the Design-Build Work until it receives written confirmation from the Town that such communication is in fact a Work Change Directive. A Work Change Directive 372
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that is signed by the Design-Builder and approved by the Town in accordance with its procurement rules and regulations, reflecting the scope of work and any price, schedule and performance relief, if any, shall be deemed a Change Order. (B) Disagreement with Terms of a Work Change Directive. If the DesignBuilder disagrees in writing with the suggested price, schedule or performance relief, if any, set out in the Work Change Directive, the Design-Builder may elect to initiate dispute resolution procedures in accordance with Section 11.1 (Dispute Resolution). In such case, the DesignBuilder shall proceed with the performance of the Design-Build Work in accordance with the Work Change Directive and shall keep and present, in such form as the Town may request, an itemized accounting to go with the appropriate supporting data with respect to the DesignBuilder’s position, including all information necessary to substantiate any cost claimed by the Design-Builder. The Design-Builder shall provide notice of any disagreement pursuant to this subsection (B) within 15 days after receipt of the Work Change Directive. The failure of the Design-Builder to provide notice of any such disagreement in accordance with this subsection (B) shall constitute a waiver of any further right to dispute the terms and conditions of a Work Change Directive.
SECTION 6.12. DESIGN-BUILD PERIOD WORK DELIVERABLE MATERIAL.
As the Design-Build Work progresses (or upon the termination of the DesignBuilder’s right to perform the Design-Build Work), the Design-Builder shall deliver to the Town all Design-Build Period Work Deliverable Material. The provisions of Section 17.7 (Property Rights) shall apply to any Design-Build Period Work Deliverable Material used by the DesignBuilder in the Design-Build Work that is proprietary in nature or otherwise subject to the property rights of a third party. The Town shall have the right from and after the Contract Date to use (or permit use of) all such Design-Build Period Work Deliverable Material, all oral information received by the Town in connection with the Design-Build Work, and all ideas or methods represented by such Design-Build Period Work Deliverable Material, without additional compensation; provided, however, that the Town shall not publish, distribute, or sell such Design-Build Period Work Deliverable Material to third parties not employed by or under contract to the Town, except as required by Applicable Law with respect to public records requests or in connection with requests for proposals to perform construction work or design, or consulting services on behalf of the Town and in connection with the performance of such work. The Town’s use of any such Design-Build Period Work Deliverable Material for any purpose other than the Project shall be at its own risk and the Design-Builder shall have no liability therefor.
SECTION 6.13. INTERFACE AND COORDINATION WITH TOWN, UTILITIES AND OTHER CONTRACTORS.
(A) Maintenance of Operations During Construction. The Design-Builder shall undertake and execute the Design-Build Work in a manner which does not interfere with or impair the ongoing operations of the Town utility systems or private utilities. The DesignBuilder shall comply with the requirements of the Utility Relocation Plan developed as part of the Phase 1b Preliminary Services and shall arrange and/or provide for all necessary bypasses and other measures necessary to maintain utility services. The Design-Builder shall coordinate all Design-Build Work with the Town in accordance with the Contract Standards, including the approved Utility Relocation Plan.
(B) Related Projects Generally. The Design-Builder acknowledges that the Town may be undertaking other projects at the Project Sites and, without limiting any other obligation under this Design-Build Contract, agrees to coordinate the Design-Build Work with the work associated with such other projects in accordance with the Contract Standards. Any other project being undertaken at or in the vicinity of the Project Sites, are referred to herein as 373
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the “Related Projects”. Nothing in this Design-Build Contract shall be interpreted as granting the Design-Builder exclusive occupancy of the Project Sites. The Design-Builder must ascertain to its own satisfaction the scope of the Project and the nature of any other contracts that have been or may be awarded by the Town in relation to its overall capital improvement program or other Related Project, of which the Design-Builder becomes aware. The DesignBuilder shall cause the Design-Build Work to be performed without damaging the work or property of any Separate Contractor and so as not to cause any unnecessary hindrance or delay to any Separate Contractors working at the Project Sites. The Design-Builder agrees to reasonably cooperate and coordinate its activities with those of the Town and all Separate Contractors so that the Project and any Related Project can be completed in an orderly and coordinated manner without unreasonable disruption. The Design-Builder agrees that it shall not be entitled to any price, performance or other Uncontrollable Circumstance relief hereunder due to any delay or hindrance to the extent caused by a failure of any DesignBuilder Person to cooperate or coordinate its work with the work of any Separate Contractor. (C) Interrelated Work. If part of the Design-Build Work depends on proper execution of construction or operations by the Town or a Separate Contractor, the DesignBuilder shall, prior to proceeding with that portion of the Design-Build Work, inspect the other work and promptly report to the Town Contract Representative any apparent discrepancies or defects in the other construction that would render it unsuitable for the proper execution of the Design-Build Work. The Design-Builder shall be entitled to Uncontrollable Circumstance relief as and to the extent provided in Article 14 (Uncontrollable Circumstances) in the event that defects in the work of the Town or any Separate Contractor render the work unsuitable for the proper execution or result of any part of the Design-Build Work. However, failure of the Design-Builder to report apparent discrepancies or defects in the other construction shall constitute acknowledgment that the Town’s or the Separate Contractor’s completed or partially completed construction is fit and proper to receive the Design-Build Work, except as to discrepancies or defects not then reasonably discoverable pursuant to Good Engineering and Construction Practice.
(D) Disputes Associated with Separate Work. If the performance of any work by the Town or a Separate Contractor under contract with the Town is likely to be interfered with by the simultaneous performance of some other contract or contracts, the Town shall decide which contractor shall cease work temporarily and which contractor shall continue or whether the work under the contracts can be coordinated so that the contractors may proceed simultaneously. Any decision by the Town to halt or delay the performance of the Design-Build Work by the Design-Builder pursuant to this Section shall be made in accordance with Section
6.14 (Suspension of Work), and the Design-Builder shall be entitled to Uncontrollable Circumstance relief as and to the extent provided therein.
SECTION 6.14. SUSPENSION OF WORK.
The Town may, through a written notice executed by the Town Contract Representative, order the Design-Builder to suspend, delay or interrupt all or any part of the Design-Build Work for such period of time as the Town Contract Representative may determine to be appropriate for the coordination of the Related Projects or otherwise for the convenience of the Town. The Design-Builder shall have no entitlement to relief hereunder or any adjustment to the Scheduled Substantial Completion Date or the Contract Compensation under circumstances of the Town ordering the Design-Builder to suspend, delay or interrupt all or any part of the Design-Build Work due to Design-Builder Fault, including any failure of compliance by any Design-Builder Person with the Design-Builder’s obligations under this Design-Build Contract in respect of the maintenance of operations during Construction, coordination in respect of Related Projects, maintenance of Required Insurance or any health and safety requirement. However, if the Town exercises its right to suspend, delay or interrupt all or any part of the Design-Build Work pursuant to this Section under circumstances other 374
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than Design-Builder Fault, an Uncontrollable Circumstance shall be deemed to have occurred, subject to the terms and conditions of Article 14 (Uncontrollable Circumstances).
SECTION 6.15. CONSTRUCTION PRACTICE.
(A) Exclusive Responsibility of Design-Builder. The Design-Builder shall have exclusive responsibility for all construction means, methods, techniques, sequences, and procedures necessary or desirable for the correct, prompt, and orderly prosecution and completion of the Design-Build Work as required by the Contract Documents. The responsibility to provide the construction means, methods, techniques, sequences and procedures referred to above shall include the obligation of the Design-Builder to provide the following construction requirements: supervision, tools, implements, machinery, labor, materials and accessories necessary and proper for the purpose; installation, periodic inspection, and removal of temporary site lighting, including specific task lighting and emergency lighting; temporary offices and construction trailers; installation, daily inspection, and removal of miscellaneous temporary barricades, fencing, partitions, and other means of temporary separation/isolation on the site during construction, including any temporary covered wooden walkways for sidewalks; required design certifications; required approvals; weather protection; dust control; noise abatement, barriers, etc.; miscellaneous de-watering requirements; clean-up and housekeeping of the Project Sites; construction trade management; temporary parking; vehicle traffic; health, safety and first aid facilities and equipment; correction of defective work or equipment; Subcontractors’ insurance; storage areas; workshops and warehouses; temporary fire protection; security of the Project Sites; temporary Utilities; Utility relocations necessary or convenient to its performance of the Design-Build Work; potable water; sanitary services; Subcontractor and vendor qualification; receipt and unloading of delivered materials and equipment; erection rigging; temporary supports; and construction coordination. The use of explosives in connection with the performance of the Design-Build Work is permitted solely to the extent permissible under Applicable Law and with the prior written approval of the Town, acting reasonably. (B) Project Sites Debris, Trash and Waste. The Design-Builder shall keep the Project Sites reasonably free from debris, trash and construction wastes to permit the Design-Builder to perform its construction services efficiently, safely and without interfering with the use of adjacent land areas and without causing complaints from Separate Contractors, adjacent property owners, local public officials or members of the public. The Design-Builder shall be responsible for the maintenance of grass, shrubbery and trees located on the Project Sites, including any right of way. Prior to Final Completion, the Design-Builder shall remove all debris, trash, construction wastes, materials, equipment, machinery and tools arising from the Design-Build Work or applicable portions thereof (and not otherwise incorporated into the Project in accordance with the Contract Documents).
SECTION 6.16. RESPONSIBILITY FOR SAFETY AND SECURITY.
(A) Safety Manager. The Design-Builder assumes responsibility for implementing and monitoring all health and safety precautions and programs related to the performance of the Design-Build Work. The Design-Builder shall, prior to commencing construction, designate an individual with the qualifications and experience necessary under Good Engineering and Construction Practice to supervise the implementation and monitoring of all health and safety precautions and programs related to the Design-Build Work (the “Safety Manager”). The Safety Manager shall be an individual stationed at the Project Sites. (B) Precautions and Protection; Project Sites Security. The Design-Builder shall take all reasonable precautions for the health and safety of, and shall provide all reasonable protection to prevent damage, injury or loss to:
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(1) All employees on the Project Sites and all other persons who may be affected thereby;
(2) All the Design-Build Work, whether in storage on or off the Project Sites, under the care, custody or control of Design-Builder or any of its Subcontractors.
Machinery and equipment shall have proper guards in place and all hazards shall be eliminated in accordance with the latest health and safety provisions of the OSHA Construction Industry Regulations 29 CFR, Parts 1910 and 1926; and (3) Other property at the Project Sites or adjacent thereto, including plant facilities, trees, shrubs, lawns, walks, pavements, roadways, structures and Utilities not designated for removal, relocation or replacement in the course of construction.
The Design-Builder shall develop and administer a security program for the Project Sites in coordination with the Town. The Design-Builder shall cooperate with the Town in connection with the Town’s program for the badging of all personnel and vehicles that require authorization for entry to the Project Sites.
(C) Health and Safety Inspections and Meetings. The Design-Builder is solely responsible to inspect, survey, and assess the Project Sites and identify the existence of all permit-required confined spaces and non-permit confined spaces and comply with applicable OSHA regulations and standards. The Design-Builder’s Project Sites assessment shall begin upon the initiation of Design-Build Work and continue throughout the duration of the Design-Build Period. The Design-Builder shall comply with all health and safety requirements imposed by Applicable Law, including 29 CFR 1910.146, in the performance of the Design-Build Work. The Safety Manager shall make routine daily inspections of the Project Sites and shall hold weekly health and safety meetings with the Design-Builder’s personnel, Subcontractors and others as applicable. The Design-Builder shall provide minutes of each health and safety meeting to the Town within five days of such meeting. (D) Health and Safety Compliance Requirements. The Design-Builder shall, and shall cause all Subcontractors to, shall comply with:
(1) All Applicable Law relating to safety;
(2) The Health and Safety Plan; and
(3) Any the Town-specific health and safety requirements provided to the Design-Builder.
The Design-Builder shall immediately report (no later than within 12 hours after its occurrence), in writing, any health and safety-related injury, loss, damage, accident or near miss arising from the Design-Build Work to the Town and, to the extent mandated by Applicable Law, to all Governmental Bodies having jurisdiction over health and safety-related matters involving the Project. Where any dangerous condition or nuisance exists in and around the Project Sites, including equipment and supply storage areas or other areas in any way connected with the performance of the Contract Obligations, the Design-Builder shall provide and maintain reasonable warning of such danger or nuisance. The Design-Builder shall not create excavation, obstructions, or any dangerous condition or nuisance of any nature whatsoever in connection with the performance of this Design-Build Contract unless necessary to its performance, and in that event the Design-Builder shall provide and maintain at all times reasonable means of warning of any danger or nuisance created. The duties of the Design-Builder in this Section shall be non-delegable, and the Design-Builder’s compliance with any specific recommendations or requirements of the Town as to the means of warning shall not excuse the Design-Builder from the faithful performance of these duties should such 376
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recommendations or requirements not be adequate or reasonable under the circumstances.
The Town, through the Town Contract Representative, shall have the right to suspend any or all Design-Build Work if the Design-Builder fails to comply with its obligations hereunder without any requirements of providing the Design-Builder with Uncontrollable Circumstance relief hereunder.
(E) Emergencies. The Design-Builder shall develop an emergency response plan in accordance with the requirements set forth in Appendix 5 (General Design-Build Work Requirements). The emergency response plan shall be subject to the approval of the Town and shall establish the protocols for the Design-Builder in dealing with emergencies impacting the performance of the Design-Build Work. In case of an emergency which threatens immediate loss or damage to property or health and safety of life, the Design-Builder shall act immediately to prevent threatened loss, damage, injury or death. The Design-Builder shall notify the Town of the situation and all actions taken immediately thereafter. If, in the opinion of the DesignBuilder, immediate action is not required, the Design-Builder shall notify the Town of the emergency situation and proceed in accordance with the Town’s instructions. However, if any loss, damage, injury or death occurs that could have been prevented by the Design-Builder’s prompt and immediate action, Design-Builder shall be fully liable for all costs, damages, claims, actions, suits, attorneys’ fees and all other expenses arising therefrom or relating thereto. Prior to commencing its Design-Build Work and at all times during the performance of the Design-Build Work, the Design-Builder shall provide the Town with two 24 hour emergency phone numbers where its representatives can be contacted. (F) Traffic Control. In the performance of Construction, the Design-Builder shall comply with all traffic related requirements of Applicable Law and shall comply with the traffic control requirements set forth in the Traffic Control Plan.
SECTION 6.17. CONSTRUCTION MONITORING, OBSERVATIONS, TESTING AND UNCOVERING OF WORK.
(A) Observations and Design-Build Work Review Protocol. During the progress of the Design-Build Work through Final Completion, the Design-Builder shall at all times during normal working hours afford the Town and its designated representatives, including the Owner Representative, every reasonable opportunity for observing all DesignBuild Work at the Project Sites, and shall comply with the Design-Build Work review procedures set forth in Appendix 7 (Design-Build Work Review Procedures). The DesignBuilder shall provide sufficient, safe and proper facilities at all reasonable times for the observation and inspection of the Design-Build Work by the Town and its designated representatives. During any such observation and inspection, all representatives of the Town shall comply with all reasonable health and safety and other rules and regulations applicable to presence in or upon the Project Sites, and shall in no material way interfere with the DesignBuilder’s performance of any Design-Build Work. The right of access provided for under this subsection (A) shall extend to all storage facilities associated with the Design-Build Work, whether located on or off the Project Sites.
(B) Factory Fabrication, Inspection and Testing. The Town reserves the right to have its designated representatives, including the Owner Representative, witness any factory fabrication, inspection or testing. The Design-Builder shall provide the Town with its anticipated schedule for such fabrication, inspection and testing at the initial Project meeting and shall provide 30 days’ advanced written notice of any actual factory fabrication, inspection or test. The Town shall provide the Design-Builder with reasonable advance notice (at least 14 days) of its intention to witness any factory fabrication, inspection or test pursuant to this subsection (B), which notice shall indicate the identity and number of designated representatives of the Town who will witness the fabrication, inspection or test. 377
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(C) Design-Builder Tests. The Design-Builder shall conduct all tests of the Design-Build Work (including shop tests) or inspections required by the Contract Standards.
The Design-Builder shall give the Town and the Owner Representative reasonable advance notice (consistent with the approved Quality Management Plan prepared in accordance with Appendix 6 (Design-Build Quality Assurance and Quality Control Requirements)) of tests or inspections required by the Contract Standards prior to the conduct thereof. In no event shall the inability, failure, or refusal of the Town or any of its representatives to attend or be present at or during any such test or inspection delay the conduct of such test or inspection, delay the performance of the Design-Build Work, or otherwise serve as the basis for relief from the Design-Builder’s obligations hereunder. The Engineer-of-Record shall conduct or witness any such test or inspection to the extent required by the Contract Standards. All analyses of test samples shall be conducted by persons appearing on lists of laboratories authorized to perform such tests by the State or federal agency having jurisdiction or, in the absence of such an authorized list in any particular case, shall be subject to the approval of the Town, which approval shall not be unreasonably withheld or delayed. (D) Certificates and Reports. The Design-Builder shall secure and deliver to the Town promptly all required certificates of inspection, test reports, work logs, or approvals with respect to the Design-Build Work as and when required by the Contract Standards. (E) Town Tests, Observations and Inspections. The Town, its employees, agents, representatives and contractors (which may be selected in the Town’s discretion), and all Governmental Bodies having lawful jurisdiction, may at any reasonable time conduct such on-site observations and inspections, and such civil, structural, mechanical, electrical or other tests as the Town deems necessary or desirable to ascertain whether the Design-Build Work complies with the Contract Standards. The Design-Build Period Costs incurred in connection with any of such test, observation or inspection shall result in a Change Order unless such test, observation or inspection reveals a material failure of the Design-Build Work to comply with the Contract Documents or Applicable Law, in which event the costs and expenses of such observation, inspection or test shall be Unallowable Costs borne solely by the Design-Builder.
The Design-Builder shall be entitled to Uncontrollable Circumstance relief as and to the extent provided in Article 14 (Uncontrollable Circumstances) in the event that any requested test, observation or inspection causes a delay in the critical path of the Design-Build Period Work Schedule, but only if such testing, observation or inspection does not reveal any material failure or non-compliance as set forth herein.
(F) Notice of Covering Design-Build Work. The Design-Builder shall give the Town notice in the Monthly Progress Report of its upcoming schedule with respect to the covering and completion of any Design-Build Work regarding the Chico WPCP Connection or structures, and shall update such notice, if necessary, within a reasonable time period (at least seven days) before such covering and completion. The Town shall give the Design-Builder reasonable notice (a minimum of 48 hours) of any intended inspection or testing of such Design-Build Work in progress prior to its covering or completion. If the Town provides such notice, the Design-Builder shall afford the Town a reasonable opportunity to conduct such tests or inspections, which the Town shall promptly complete. At the Town’s written request, the Design-Builder shall take apart or uncover for inspection or testing any previously-covered or completed Design-Build Work; provided, however, that the Town’s right to make such requests shall be limited to circumstances where there is a reasonable basis for concern by the Town as to whether the disputed Design-Build Work complies with the requirements of the Contract Documents. The cost of uncovering, taking apart, or replacing such Design-Build Work along with the costs related to any delay in performing Design-Build Work caused by such actions, shall:
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Standards or for which the Town was not provided reasonable advance notice hereunder, or prior to the date on which the Town was to conduct any observation or test as to which the Town has provided notice of its intention to conduct in accordance with this subsection (F); and
(2) In all other cases, as follows:
(a) Be Unallowable Costs borne solely by the Design-Builder, if such observation or test reveals that the Design-Build Work does not comply with the Contract Documents; or
(b) Be Design-Build Period Costs, if such observation or test reveals that the Design-Build Work complies with the Contract Documents, and shall result in a Change Order.
In the event such Design-Build Work does comply with the Contract Documents and the associated costs are determined to be Design-Build Period Costs pursuant to this subsection, the delay caused by such observation or test shall be treated as having been caused by an Uncontrollable Circumstance and any costs incurred with respect to such observation or test shall be costs for the account of the Town in accordance with Article 14 (Uncontrollable Circumstances).
SECTION 6.18. CORRECTION OF WORK.
(A) Correction of Non-Conforming Design-Build Work. Throughout the Design-Build Period, the Design-Builder shall complete, repair, replace, restore, re-perform, rebuild and correct promptly any Design-Build Work that does not conform with the Contract Standards. The Design-Builder shall be solely responsible at its cost for the removal of defective work. In the event of a failure of the Design-Builder to correct any such nonconforming Design-Build Work in a timely manner, the Town shall have the right, but not the obligation, to correct or provide for the correction of such nonconforming Design-Build Work and the costs and expenses reasonably incurred by the Town in connection therewith shall be reimbursed by the Design-Builder to the Town. The Town shall provide the DesignBuilder with seven days’ advance written notice prior to exercising its right to correct or provide for the correction of any nonconforming Design-Build Work pursuant to this subsection (A). (B) Election to Accept Non-Conforming Design-Build Work. The Town may elect by Change Order, at the Design-Builder’s request, to accept non-conforming Design-Build Work and charge the Design-Builder (through a Base Guaranteed Maximum Price Adjustment) for the amount agreed upon by the parties as reflecting the reduction in value of the DesignBuild Work. The Town shall have no obligation to accept non-conforming Design-Build Work pursuant to this subsection (B).
(C) Relation to Other Obligations. The obligations specified in this Section establish only the Design-Builder’s specific obligation to correct the Design-Build Work and shall not be construed to establish any limitation with respect to any other obligations or liabilities of the Design-Builder under this Design-Build Contract. This Section is intended to supplement (and not to limit) the Design-Builder’s obligations under any other provisions of this Design-Build Contract or Applicable Law.
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with the Contract Standards to protect the Design-Build Work from loss, damage or destruction.
(B) Restoration. During the Design-Build Period, in case of damage to the Design-Build Work, and regardless of the extent thereof or the estimated cost of restoration, and whether or not any insurance proceeds are sufficient or available for the purpose, the Design-Builder shall promptly undertake and complete restoration of the damage to the Design-Build Work to the character and condition existing immediately prior to the damage and in accordance with the procedures set forth herein, as applicable, regarding Uncontrollable Circumstances, Change Orders and Work Change Directives. The Town shall have the right to monitor, review and inspect the performance of any repair, replacement and restoration work by the Design-Builder in accordance with this Article 6. If the Design-Builder fails to undertake restoration of the damage, or having so commenced fails to complete restoration in accordance with the Contract Documents, the Town may (but shall not be obligated to) undertake or complete restoration at the Design-Builder’s expense to the extent applicable in accordance with this Section. The Town shall provide the Design-Builder with seven days’ advance written notice prior to exercising its right to undertake or complete restoration pursuant to this subsection (B). Notwithstanding any of the foregoing, to the extent that Uncontrollable Circumstances cause damage to the Design-Build Work and insurance proceeds or other third-party payments are not sufficiently available to pay for restoration work pursuant to this subsection (B), the Design-Builder’s obligation to perform such restoration work shall be subject to the receipt of reasonable assurances from the Town of its ability to pay the costs for which it is financially responsible under this Section. (C) Notice and Reports. In addition to the notification requirements set forth in Section 6.16(E) (Emergencies), the Design-Builder shall notify the Town and the insurers under any applicable policy of Required Insurance of any incident causing property damage to the Design-Build Work in excess of $5,000 or of any OSHA recordable injury accident on the Project Sites related to the Design-Build Work, as promptly as reasonably possible after the Design-Builder learns of any such damage or accident. As soon as practicable after learning of any such incident or accident (but in no event later than 72 hours), the Design-Builder shall submit a written report to the Town. Such report shall be updated on a weekly basis and upon culmination of all tests, analysis and reviews, a final report incorporating all of the tests, analysis and reviews and the findings thereof shall be submitted to the Town. The DesignBuilder shall also submit to the Town copies of all accident and other reports filed with (or given to the Design-Builder by) any insurance company, adjuster, or Governmental Body or otherwise prepared or filed in connection with the damage or accident. (D) Insurance and Other Third-Party Payments. To the extent that any repair, replacement or restoration costs incurred pursuant to this Section can be recovered from any insurer or from another third party, each party shall assist each other in exercising such rights as it may have to effectuate such recovery. Each party shall provide the other with copies of all relevant documentation, and shall cooperate with and assist the other party upon request by participating in conferences, negotiations and litigation regarding insurance claims; provided, however, that neither party shall be obligated pursuant to this subsection (D) to provide the other party with documents subject to the attorney-client privilege under the laws of the State.
(E) Payment for Restoration Work and Uninsured Costs. All insurance proceeds and recoveries from third parties resulting from damage to or the loss or destruction of the Design-Build Work, including proceeds from all policies of Required Insurance, shall be for the benefit of the Town. The Town shall pay the Design-Builder for restoration work required pursuant to this Section with such proceeds and recoveries and, as necessary, other funds of the Town obtained pursuant to the Change Order provisions of this Article 6 and the payment provisions of Article 9 (Contract Compensation), as applicable. All costs not covered 380
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by insurance proceeds or third-party payments shall constitute Design-Build Period Costs; provided, however, that such costs shall be Unallowable Costs borne solely by the DesignBuilder to the extent the loss, damage or destruction was caused by Design-Builder Fault or to the extent insurance proceeds are not available due to a failure of the Design-Builder to obtain or maintain any applicable policy of Required Insurance. (F) Repair of the Town and Private Property. The Design-Builder shall promptly at its sole cost and expense repair or replace all the Town Property and all private property damaged by the Design-Builder or any officer, director, employee, representative, agent or Subcontractor of the Design-Builder in connection with the performance of, or the failure to perform, the Design-Build Work. The repair and replacement work shall restore the damaged property, to the maximum extent reasonably practicable, to its character and condition existing immediately prior to the damage. Nothing in this subsection (F) is intended to waive any rights of recovery under applicable policies of insurance.
SECTION 6.20. OPERATIONS AND MAINTENANCE MANUAL.
The Design-Builder shall develop a comprehensive Operations and Maintenance Manual in accordance with the Contract Standards, including the specific requirements set forth in Appendix 5 (General Design-Build Work Requirements). The Operations and Maintenance Manual shall contain a detailed description of the means and methods of properly operating and maintaining the Project; shall integrate all equipment and systems service manuals; shall document standard operating procedures and predictive, preventive and corrective maintenance procedures, practices and schedules; and shall otherwise be sufficiently detailed to permit the Project to be operated and maintained by operations and maintenance personnel by or on behalf of the Town. The Design-Builder shall submit preliminary, interim, pre-final and final versions of the Operations and Maintenance Manual for the Town’s review, comment and approval in accordance with Appendix 5 (General DesignBuild Work Requirements). A pre-final Operations and Maintenance Manual meeting the specific requirements set forth in Appendix 5 (General Design-Build Work Requirements) shall be submitted to and approved by the Town as a condition precedent to the achievement of Substantial Completion in accordance with Section 8.1 (Substantial Completion Date Conditions). A final Operations and Maintenance Manual meeting the specific requirements set forth in Appendix 5 (General Design-Build Work Requirements) shall be submitted to and approved by the Town as a condition precedent to the achievement of Final Completion in accordance with Section 8.4 (Final Completion).
SECTION 6.21. PUNCH LIST ITEMS.
(A) Punch List Requirements. The Design-Builder shall submit a proposed Punch List to the Town and the Owner Representative when the Design-Builder believes that the Design-Build Work has achieved the requirements for Substantial Completion in compliance with the Contract Documents. The “Punch List” shall be a statement of repairs, corrections and adjustments to the Design-Build Work, and incomplete aspects of the DesignBuild Work, which in the Design-Builder’s opinion:
(1) The Design-Builder can complete before the date specified in subsection (B) of this Section, and with minimal interference to the occupancy, use and lawful operation of the Project; and
(2) Would represent, to perform or complete, a total cost of not more than
0.3% of the portion of the Guaranteed Maximum Price applicable to the construction of the Project (unless the Town determines, in its discretion, that a higher percentage is acceptable, as evidenced by the written approval of the Town Contract Representative). 381
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The Town shall have the right to approve the Punch List in its discretion. (B) Completion of Punch List Items. The Design-Builder shall complete all items on the Punch List within 60 days following the Substantial Completion Date. All work associated with the Punch List items shall constitute Design-Build Work hereunder and shall be performed by the Design-Builder in accordance with the Contract Standards. 382
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ARTICLE 7
MANAGEMENT, LABOR AND SUBCONTRACTORS
SECTION 7.1. MANAGEMENT.
(A) Project Manager. The Design-Builder has designated an employee of the Design-Builder, as the “Project Manager” to oversee all Preliminary Services and all DesignBuild Period Work. When the Design-Builder or any Subcontractor is performing Construction Work, the Construction Superintendent (or designee reasonably acceptable to the Town) shall be present at the Project Sites. The Project Manager shall, among other things:
(1) Be familiar with the Contract Obligations and all requirements of the Contract Documents;
(2) Coordinate the Contract Obligations and give the Contract Obligations regular and careful attention and supervision;
(3) Maintain a daily status log of the Design-Build Work when being performed; and
(4) Attend all Project meetings (including meetings concerning scope, review, pre-bid, pre-construction, and construction matters) with the Town and its representatives.
The Design-Builder represents and warrants that the Project Manager shall be vested with the authority to act on behalf of the Design-Builder in connection with the performance of the Contract Obligations and to bind the Design-Builder with respect to any certification required under this Design-Build Contract to be made by the Project Manager. If the Design-Builder is comprised of two or more persons functioning as a joint venture, the Design-Builder shall have the authority to represent and act for the joint venture. The Design-Builder may change the person assigned as the Project Manager solely in accordance with the provisions of subsection (B) of this Section.
(B) Town Rights With Respect to Key Personnel. The Design-Builder acknowledges that the identity of the Project Manager and the other key management and supervisory personnel proposed by the Design-Builder and its Subcontractors in its Statement of Qualifications was a material factor in the selection of the Design-Builder to perform this Design-Build Contract. Such personnel, their affiliations and their anticipated roles in the performance of the Contract Obligations are set forth in Appendix 11 (Key Personnel and Approved Subcontractors). The Design-Builder shall utilize such personnel to perform such services unless such personnel are unavailable for good cause shown. “Good cause shown” shall not include performing services on other projects for the Design-Builder or any of its Affiliates, but shall include termination for cause, employee death, disability, retirement, resignation or any job protected leave available under Applicable Law. In the event of any such permissible unavailability, the Design-Builder shall utilize replacement key management and supervisory personnel of equivalent skill, experience and reputation. Any on-site personnel change shall be proposed to the Town with reasonable advance notice for its review and approval, which shall not be unreasonably withheld or delayed. The Design-Builder shall remove or replace, or have removed or replaced, any personnel performing the Contract Obligations if the Town, acting reasonably, determines that an unworkable relationship has developed between the Town and the individual.
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SECTION 7.2. LABOR.
(A) Personnel Performance. The Design-Builder shall enforce discipline and good order at all times among the Design-Builder’s employees and all Subcontractors. All persons engaged by the Design-Builder for performance of the Contract Obligations shall have requisite skills for the tasks assigned. The Design-Builder shall employ or engage and compensate engineers and other consultants to perform all engineering and other services required for the Contract Obligations. The Design-Builder shall cause all persons performing Contract Obligations, including all Subcontractors, to comply with all registration, licensing and certification requirements imposed by any Governmental Body or otherwise under Applicable Law, including Design-Builder and Subcontractor employees. (B) Training of Design-Builder and Subcontractor Employees. The DesignBuilder shall provide training for all individuals employed by the Design-Builder or Subcontractors as a prerequisite to their entry to the Project Sites. The Design-Builder’s training program for such employees shall include orientation training, safety and awareness training, and any other training deemed necessary. In addition, the training program shall, to the extent applicable for each employee, provide training for the start-up, Commissioning and Substantial Completion Test activities, and transition management and administration of the Project.
(C) Labor Relations. The Design-Builder shall furnish labor that can work in harmony with all other elements of labor employed for the performance of the Design-Build Work. The Design-Builder shall have exclusive responsibility for disputes or jurisdictional issues among unions or trade organizations representing employees of the Design-Builder or its Subcontractors, whether pertaining to organization of the Design-Build Work, arrangement or subdivision of the Baseline Design Documents, employee hiring, or any other matters. The Town shall have no responsibility whatsoever for any such disputes or issues and the DesignBuilder shall indemnify, defend and hold harmless the Town and the Town Indemnitees in accordance with and to the extent provided in Section 15.1 (Design-Builder’s Obligation to Indemnify) from and against all Loss-and-Expense resulting from any such labor dispute. (D) Notice of Labor Disputes. If the Design-Builder has knowledge of an actual or potential labor dispute that may affect any of the Contract Obligations, the DesignBuilder shall promptly:
(1) Give notice thereof to the Town, including all relevant information related to the dispute of which the Design-Builder has knowledge; and (2) Take all reasonable steps to avoid an impact on the performance of any of the Contract Obligations including by applying for relief to appropriate forums or courts.
(E) Federal and State Prevailing Wage Requirements. The Project requires the payment of prevailing wage rates as set forth below:
(1) Pursuant to California Labor Code Section 1770 et seq., the general prevailing wage rates in the county in which the project work is to be done have been determined by the Director of the California Department of Industrial Relations. These wages are set forth in the General Prevailing Wage Rates for this project, available at the Town and available from the California Department of Industrial Relations’ Internet web site at http://www.dir.ca.gov/DLSR/PWD. Future effective general prevailing wage rates, which have been predetermined and are on file with the California 384
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Department of Industrial Relations are referenced but not printed in the general prevailing wage rates.
(2) Both federal and State wage rates shall apply. Attention is directed to the Federal minimum wage rate requirements in Appendix 12 (Certain Grant Requirements and Guidelines). The Federal minimum wage rates for the Project as predetermined by the United States Secretary of Labor are set forth in the books entitled “Notice to Contractors, Special Provisions, and Contract Documents”. The Federal minimum wage rates for the Project may be obtained directly from the Department of Labor home page at www.gpo.gov/davisbacon. Click on “Browse All Determinations By State”, then click on “California”, and then click on the “[__________]” determination for Butte County. A Contract Administration Memorandum to modify the Federal minimum wage rates, if necessary, will be executed and delivered. (3) If there is a difference between the minimum wage rates predetermined by the United States Secretary of Labor and the general prevailing wage rates determined by the Director of the California Department of Industrial Relations for similar classifications of labor, the Design-Builder and its Subcontractors shall pay not less than the higher wage rate. The California Department of Industrial Relations will not accept lower State wage rates not specifically included in the Federal minimum wage determinations. This includes “helper” (or other classifications based on hours of experience) or any other classification not appearing in the Federal wage determinations. Where Federal wage determinations do not contain the State wage rate determination otherwise available for use by the Design-Builder and its Subcontractors, the Design-Builder and its Subcontractors shall pay not less than the Federal minimum wage rate, which most closely approximates the duties of the employees in question.
(4) The minimum wage shall be periodically increased during the Design-Build Period in an amount equal to the increase in the prevailing wages for those kinds of work as periodically determined by the State Director of Department of Industrial Relations or the United States Secretary of Labor, as applicable. Since the Town has obtained the Grants to pay portions of the Design-Build Price, both federal and State wage rates shall apply and the Design-Builder shall comply with the Davis-Bacon Act (40 U.S.C. 3141-3144 and 3146-3148) as supplemented by the United States Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”) and all applicable provisions summarized in Appendix 12 (Certain Grant Requirements and Guidelines). Where rates for any class of laborers and mechanics differ, the higher rates shall prevail. A copy of the wage rate determination, (including any additional classification and wage rate conformed under 29 CFR 5.5a(1)(ii) and Davis-Bacon poster (WH-1321)) shall be posted at all times at the site of work in a prominent and accessible place where it can be easily seen by the workers.
Notwithstanding the provisions of this Design-Build Contract when entered into by the parties (including the Davis-Bacon Act wage determination attached to Appendix 12 (Certain Grant Requirements and Guidelines)), if the applicable prevailing wage rate has increased during the Term, the rate of pay of laborers and mechanics performing Design-Build Work shall be raised accordingly. The Guaranteed Maximum Price shall not be increased due to increases in the prevailing wage rate during the Term. The Design-Builder and all Subcontractors shall also comply with the Copeland “Anti-Kickback” Act (40 385
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U.S.C. 3145), as supplemented by United States Department of Labor regulations (29 CFR Part 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States).
(F) Labor Compliance. The Design-Builder and all Subcontractors must submit certified payrolls and labor compliance documentation starting with the first Certified Payroll Report (CPR) and every CPR thereafter.
(G) Non-Discrimination in Employment. During the performance of the Contract Services, the Design-Builder agrees as follows:
(1) The Design-Builder will not discriminate against any employee or applicant for employment because of race, religion, color, gender, sexual orientation or national origin, except where religion, gender, sexual orientation or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of the Design-Builder, and the Design-Builder agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause;
(2) The Design-Builder, in all solicitations or advertisements for employees placed by or on behalf of the Design-Builder, will state that the Design-Builder is an equal opportunity employer;
(3) Notices, advertisements and solicitations placed in accordance with federal law, rule or regulation, shall be deemed sufficient for the purpose of meeting the requirements of this provision; and
(4) The Design-Builder shall include the provisions of items (1), (2) and (3) above in every Subcontract of over $10,000 so that the provisions will be binding upon every Subcontractor or vendor.
(H) Drug-Free Workplace. During the performance of this Design-Build Contract, the Design-Builder agrees to (a) provide a drug-free workplace for the DesignBuilder’s employees; (b) post in conspicuous places, available to employees and applicants for employment, a statement notifying employees that the unlawful manufacture, sale, distribution, dispensation, possession, or use of a controlled substance or marijuana is prohibited in the Design-Builder’s workplace and specifying the actions that will be taken against employees for violations of such prohibition; (c) state in all solicitations or advertisements for employees placed by or on behalf of the Design-Builder that the DesignBuilder maintains a drug-free workplace; and (d) include the provisions of the foregoing clauses in every Subcontract of over $10,000, so that the provisions will be binding upon each Subcontractor. For the purposes of this Section, “drug-free workplace” means a site for the performance of Contract Obligations performed in conjunction with this Design-Build Contract.
The Design-Builder’s employees, in accordance with this Section, are prohibited from engaging in the unlawful manufacture, sale, distribution, dispensation, possession or use of any controlled substance or marijuana during the performance of this Design-Build Contract. The Design-Builder shall adhere to and certify that its employees comply with this substance abuse program.
(I) Overtime Work. No laborer or mechanic employed at the Project Sites during the Design-Build Period shall be permitted or required to work on a Saturday, Sunday, or a legal holiday of the State or in excess of eight hours on any other day unless the laborer or 386
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mechanic receives overtime compensation for all hours worked on a Saturday, Sunday, and a legal holiday of the State or in excess of eight hours on any other day. For purposes of determining overtime compensation under this subsection, the basic hourly rate of any laborer or mechanic shall not be less than the basic hourly rate determined by the California Department of Industrial Relations to be the prevailing basic hourly rate for corresponding classes of laborer and mechanics on projects of similar character in the State. The DesignBuilder and all Subcontractors shall also comply with the 40 U.S.C. 3702 and 3704, as supplemented by United States Department of Labor regulations (29 CFR Part 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”) and all applicable requirements of the Grants, including all applicable provisions identified in Appendix 12 (Certain Grant Requirements and Guidelines). (J) Inclusion in Subcontracts. The Design-Builder shall include Section
7.2(E) (Federal and State Prevailing Wage Requirements) through Section 7.2(I) (Overtime Work) in every Subcontract for Design-Build Period Work.
(K) Design-Builder Employee Whistleblower Rights and Requirement to Inform Employees of Whistleblower Rights. As a result of the federal funding that the Town is obtaining to reimburse itself for a portion of the Design-Build Price, this Design-Build Contract and employees working on the Design-Build Work will be subject to the whistleblower rights and remedies in the pilot program on contractor employee whistleblower protections established at 41 U.S.C. 4712 by Section 828 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239) and Federal Acquisition Regulation (FAR) 3.908. The Design-Builder shall inform its employees in writing, in the predominant language of the workforce, of employee whistleblower rights and protections under 41 U.S.C 4712, as described in FAR 3.908. The Design-Builder shall insert the substance of this subsection, including this sentence, in all Subcontracts over the simplified acquisition threshold, as defined in FAR 2.101 on the date of Subcontract award.
(L) Employee-Related Insurance Coverage. The Design-Builder is responsible for securing all employee-related insurance coverage for the Design-Builder and the Design-Builder’s employees and agents that is or may be required by law, and for payment of all premiums, costs, and other liabilities associated with securing such insurance coverage. (M) Applicability of Certain Grant Requirements. Nothing set forth in this Section is intended to limit the Design-Builder’s obligations as identified in Appendix 12 (Certain Grant Requirements and Guidelines). Section 1.2(R) (Applicability, Stringency and Consistency of Contract Standards) shall govern issues of interpretation related to any inconsistency between terms and conditions set forth in this Section and in Appendix 12 (Certain Grant Requirements and Guidelines).
(N) Skilled and Trained Workforce Requirements. The Design-Builder shall comply with the requirements of Section 22172(b) of the California Public Contract Code obligating the Design-Builder to use a skilled and trained workforce in performing the DesignBuild Work, and shall report to the Town monthly on actions taken to achieve such compliance.
SECTION 7.3. SUBCONTRACTING GENERALLY.
(A) Limited Right to Subcontract. The Design-Builder may carry out the Design-Build Work and other Contract Obligations by contracting such obligations to one or more Subcontractors in accordance with the requirements of this Article 7; provided, however, that the Design-Builder shall not subcontract more than seventy percent (70%) of the Construction work on the Project unless otherwise approved by the Town. The Design-Builder 387
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shall retain full responsibility to the Town under this Design-Build Contract for all matters related to the Contract Obligations, notwithstanding the execution of, or the terms and conditions contained in, any Subcontract. Subcontracts entered into by the Design-Builder for the performance of the Contract Obligations shall neither supersede nor abrogate any of the terms or provisions of this Design-Build Contract.
(B) Approval Required. The Subcontractors identified in Appendix 11 (Key Personnel and Approved Subcontractors) are approved by the Town for the performance of the specific Contract Obligations identified therein, subject to the rights of the Town under this Section. The Design-Builder shall retain such Subcontractors to perform such services, unless otherwise agreed to in writing by the Town. All other Subcontractors shall be subject to the approval of the Town, which approval shall not be unreasonably withheld. The Design-Builder shall replace any Subcontractor at the request of the Town, after notice and a reasonable opportunity for corrective action, in the event that the Town determines, acting reasonably, that an unworkable relationship has developed between the Town or the Design-Builder and the Subcontractor. The Town’s approval of any Subcontractor performing Contract Obligations shall be subject to the terms and conditions of Section 7.4 (Self-Performance and Subcontractor Selection).
(C) Performance Failure. The Design-Builder shall retain full responsibility to the Town under this Design-Build Contract for all matters related to the Contract Obligations. No failure of any Subcontractor used by the Design-Builder in connection with the provision of the Contract Obligations shall constitute an Uncontrollable Circumstance or otherwise relieve the Design-Builder from its obligations hereunder to perform the Contract Obligations, except as provided in items (h) and (j) of the list of “Inclusions” in the definition of Uncontrollable Circumstances. The Design-Builder shall be responsible for settling and resolving with all Subcontractors all claims including those:
(1) Arising out of delay, disruption, interference, hindrance, schedule extension caused by the Design-Builder;
(2) Arising from the actions or inactions of the Design-Builder or a Subcontractor; or
(3) Inflicted on the Design-Builder or a Subcontractor by the actions of another Subcontractor.
The Design-Builder shall provide to the Town, promptly following the receipt thereof, copies of any notice of default, breach or non-compliance received under or in connection with any Subcontract that may have a material and adverse effect on performance by the Design-Builder of its obligations under the Contract Documents.
(D) Restricted Persons. In providing the Contract Obligations, the DesignBuilder shall not contract with, or allow any of its Subcontractors to contract with, any person that, in the reasonable opinion of the Town, is a Restricted Person. (E) Subcontractor Licensing. All trade Subcontractors shall possess a valid contractor license as required by Applicable Law for the classification required for the work to be performed by the Subcontractor at the time of the Subcontract and throughout the duration of the Subcontract. Section 7.2(A) (Personnel Performance) shall be applicable to all Subcontractors performing Design Professional Services. (F) Availability of Subcontractors and Key Personnel. At the request of the Town, the Design-Builder shall make the key representatives of Subcontractors available for 388
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meetings between the Town and the Design-Builder concerning design review, construction progress, Substantial Completion or any other matter relating to the performance of the Design-Build Work. The Design-Builder shall provide the Town with periodic human resource allocation summary reports concerning the personnel of the Material Subcontractors, which reports shall include anticipated personnel allocations for all ongoing and planned projects and shall demonstrate human resource sufficiency.
(G) Assignability. All Subcontracts entered into by the Design-Builder with respect to the Project shall be assignable to the Town, solely at the Town’s election and without cost or penalty, upon any early termination of this Design-Build Contract, including convenience termination under Section 12.6 (Town Convenience Termination Rights). (H) Prompt Payment. The Design-Builder shall pay its Subcontractors in accordance with Applicable Law. Any reduction of retention by the Town to the Design-Builder under Article 9 (Contract Compensation) shall result in a corresponding reduction to Subcontractors who have performed satisfactory work. The Design-Builder shall pay Subcontractors the reduced retention within 10 days after the payment of the reduction of the retention to the Design-Builder. No contract between the Design-Builder and its Subcontractors may materially alter the rights of any Subcontractor to receive prompt payment and retention reduction as provided herein. If the Design-Builder fails to make payments in accordance with this Section, the Town may take any one or more of the following actions and the Design-Builder agrees that the Town may take such actions:
(1) To declare the Design-Builder in breach of this Design-Build Contract; (2) Withhold future payments, including retention, until proper payment has been made to Subcontractors in accordance with this Section; or (3) Terminate this Design-Build Contract for an Event of Default by the Design-Builder under Section 12.2(B) (Events of Default Requiring Previous Notice and Cure Opportunity for Termination).
The Design-Builder shall include prompt payment provisions consistent with this Section and the requirements of Applicable Law in every Subcontract, including procurement of materials and leases of equipment entered into in connection with this Design-Build Contract. Nothing contained in this Section or otherwise in this Design-Build Contract shall provide a basis for any Subcontractor claim against the Town.
(I) Subcontractor Claims. The Design-Builder shall pay or cause to be paid to all Subcontractors all amounts due in accordance with their respective Subcontracts and the requirements of this Article 7. The Design-Builder acknowledges that its indemnity obligations under Article 15 (Indemnification) shall extend to all claims for payment or damages by any Subcontractor who furnishes or claims to have furnished any labor, services, materials or equipment in connection with the Design-Build Work. No Subcontractor shall have any right or claim against the Town for labor, services, materials or equipment furnished for the Contract Obligations.
(J) Design-Builder Employee Claims. The Design-Builder specifically assumes potential liability for actions brought by the Design-Builder’s own employees against the Town and, solely for the purpose of this indemnification and defense, the Design-Builder specifically waives any immunity available to it under State law. The Design-Builder recognizes that this waiver was the subject of mutual negotiation. 389
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(K) Subcontracting with Small and Minority Businesses, Women’s Business Enterprises and Labor Surplus Area Firms. In accordance with 2 CFR 200.321, the DesignBuilder shall take all necessary affirmative steps to cause minority businesses, women’s business enterprises and labor surplus area firms to be used when possible in performance of the Design-Build Work. Affirmative steps must include:
(1) Placing qualified small and minority businesses and women’s business enterprises on solicitation lists;
(2) Assuring that small and minority businesses, and women’s business enterprises are solicited whenever they are potential sources; (3) Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by small and minority businesses, and women’s business enterprises;
(4) Establishing delivery schedules, where the requirement permits, which encourage participation by small and minority businesses, and women’s business enterprises; and
(5) Using the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Minority Business Development Agency of the United States Department of Commerce.
SECTION 7.4. SELF-PERFORMANCE AND SUBCONTRACTOR SELECTION. (A) Self-Performed Construction Work Generally. A minimum of thirty percent (30%) of Construction work on the Project shall be performed by the Design-Builder, or its Affiliates unless otherwise approved by the Town. Additional Construction work may be performed by the Design-Builder, or its Affiliates, with the approval of the Town given in its discretion pursuant to subsection (G) of this Section. The parties agree that, during the performance of the Preliminary Services, specific aspects of the Construction may be proposed for self-performance by the Design-Builder, any Affiliate of the Design-Builder or by an Approved Subcontractor. The Town agrees to approve the proposed self-performance of the required minimum of thirty percent (30%) of Construction work on the Project required by this Section 7.4(A) and to allow the proposed self-performance of Construction work on the Project in excess of such required minimum of thirty percent (30%) of Construction work on the Project if the Design-Builder demonstrates to the Town’s satisfaction that providing for such self-performance is in the best interest of the Project and that the pricing therefor will be fair, reasonable and consistent with industry standards for similar services. The Town, in its discretion, may require that any such demonstration be supported by an independent cost estimate. Notwithstanding the foregoing, the Town shall have the right in its sole discretion to require that the Design-Builder utilize a competitive procedure as set forth in Section 7.4(F) (Competitive Procedures for Construction Work) and (G) (Alternative Procedures for Construction Work) for any and all Construction work proposed to be self-performed by the Design-Builder, any Affiliate of the Design-Builder or by an Approved Subcontractor. (B) Subcontractor Selection Generally. Subcontractors shall be selected on a competitive basis, unless the Town approves otherwise in accordance with subsection (G) (Alternative Procedures for Construction Work) of this Section. (C) Subcontracting Plan. A proposed final Subcontracting Plan shall be prepared during performance of the Preliminary Services and proposed by the Design-Builder 390
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as part of the GMP Submittal, and negotiated and agreed upon by the parties as part of the GMP Amendment.
(D) Division of Work. The Design-Builder shall coordinate and develop with the Town Contract Representative bid packages and work scope descriptions for each separate bid category that represents the entirety of the scope of the Design-Build Work for each phase and stage of the Project. The Design-Builder shall be responsible for determining the Baseline Design Documents that are applicable to each Subcontractor performing Design-Build Work, including all trade Subcontractors and Suppliers. The Design-Builder shall be responsible for the assembly, reproduction and distribution of all documents defining the scope of work for each Subcontractor.
(E) Pre-Bid Conferences. The Design-Builder shall schedule and conduct pre-bid or pre-proposal conferences with trade Subcontractors and Suppliers for the purpose of generating interest in the Project among potential Subcontractors. The Design-Builder shall coordinate such pre-bid conferences with the Town Contract Representative and shall record and preserve conference minutes.
(F) Competitive Procedures for Construction Work. Except for Construction work approved by the Town to be self-performed by the Design-Builder, any Affiliate of the Design-Builder or by an Approved Subcontractor pursuant to Section 7.4(A) (Self-Performed Construction Work Generally) or as may otherwise be approved in writing by the Town Contract Representative in accordance with subsection (G) of this Section, the Design-Builder shall enter into fixed-price Subcontracts for the performance of all Construction work and, in connection therewith, shall utilize a competitive bidding or competitive sealed proposal process approved by the Town. In connection with any such procurement, the Design-Builder shall, in accordance with the Contract Standards:
(1) Develop procurement procedures in consultation with the Town Contract Representative and prepare all necessary procurement documents; (2) Publicly advertise and receive bids or proposals;
(3) Open and review all bids or proposals in a manner that does not disclose the contents of the bids or proposals to persons not employed by the Design-Builder, the Town or the Owner Representative;
(4) Evaluate the bids or proposals in accordance with the selection criteria established in the procurement documents; and
(5) Recommend a bid or proposal for approval by the Town Contract Representative in accordance with such evaluation.
Any Subcontract awarded for the performance of Construction work shall be subject to the Town’s approval and shall have terms and conditions and a risk allocation substantially identical to that established by this Design-Build Contract. The Town Contract Representative’s approval of a bid or proposal recommended by the Design-Builder in accordance with this Section shall not be unreasonably withheld. Without limiting any of the foregoing, the Design-Builder acknowledges and agrees that the Town and the Owner Representative shall have the right to: (i) review and comment on all procurement documents; (ii) attend any bid or proposal openings; (iii) attend any meetings with prospective Subcontractors or Suppliers, including scope review meetings; (iv) review all bids, proposals, and other information developed or otherwise resulting from any competitive procurement, including the Design-Builder’s tabulation, scoring or evaluation materials; and (v) otherwise 391
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participate in the negotiation and contract award process. Upon contract award, the DesignBuilder shall provide the Town Contract Representative with a description of the competitive process undertaken in connection with such contract award, together with copies of all material documents used in connection therewith and agreements resulting therefrom. (G) Alternative Procedures for Construction Work. The Design-Builder may propose to the Town Contract Representative alternative procedures for the procurement of Construction work other than Construction work approved by the Town to be self-performed by the Design-Builder, any Affiliate of the Design-Builder or by an Approved Subcontractor pursuant to Section 7.4(A) (Self-Performed Construction Work Generally). The Town Contract Representative’s approval of any such alternative procedure shall be in the Town Contract Representative’s sole discretion. If the Design-Builder or any Affiliate of the Design-Builder intends to submit a competitive bid or proposal for Construction work, the Design-Builder shall notify the Town Contract Representative in writing prior to the issuance of procurement documents for the work, and the Town Contract Representative shall have the right in its sole discretion to disallow the Design-Builder or any Affiliate of the Design-Builder from submitting a competitive bid or proposal for such Construction work or to require the submittal of all bids or proposals directly to the Town (and not to the Design-Builder) for review, evaluation and selection. Any decision by the Town Contract Representative to approve the performance of Construction work without obtaining competitive bids or proposals shall be subject to an “open book” process to provide the Town Contract Representative with sufficient information to determine whether the proposed pricing of the work is fair, reasonable and consistent with industry standards for similar services.
(H) Procurement of Subcontractors Prior to the GMP Amendment Date. The Design-Builder, during the Preliminary Services Period, in the development of the proposed Base Guaranteed Maximum Price to be submitted to the Town in the GMP Submittal (1) may conduct discussions with and obtain indicative pricing information from potential Construction Subcontractors, and (2) may initiate, subject to the approval of the Town given in its discretion, the formal procurement process for selecting Construction Subcontractors. Any such formal procurement process shall be conducted in accordance with the requirements of this Section and Section 22172.3 of the California Public Contract Code. No Subcontract resulting from such procurement process shall be executed prior to the GMP Amendment Date without the Town’s consent given in its discretion.
(I) Use of Approved Subcontractors; Non-Substitution. The Design-Builder acknowledges that the identity of the Subcontractors identified by the Design-Builder in the Proposal was a material factor in the decision of the Town to execute this Design-Build Contract. Such Subcontractors constitute the Approved Subcontractors. The Approved Subcontractors designated in Appendix 11 (Key Personnel and Approved Subcontractors) for the performance of Design-Build Work are deemed qualified and shall be used for the performance of the portion of the Design-Build Work indicated in Appendix 11 (Key Personnel and Approved Subcontractors). In accordance with Sections 22172.3(a) and (c) of the California Public Contract Code, no substitution of Approved Subcontractors shall be made except upon compliance with the substitution requirements set forth in Chapter 4 (commencing with Section 4100) of Part 1 of Division 2 of the California Public Contract Code (the “Subletting and Subcontracting Fair Practices Act”). (J) Security for Construction Subcontractor Performance. Security for the performance of Subcontractors under Construction Subcontracts shall be provided in a manner agreed to by the parties, and the costs therefor shall constitute Design-Build Period Costs.
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SECTION 7.5. TERMINATION, AMENDMENT, ASSIGNMENT AND
REPLACEMENT OF MATERIAL SUBCONTRACTS.
(A) Termination, Amendment and Assignment. Unless the Design-Builder has, at its earliest practicable opportunity, submitted to the Town notice of the proposed course of action (and any relevant documentation) and the Town has consented in writing to such course of action, such consent not to be unreasonably withheld or delayed, the DesignBuilder shall not:
(1) Terminate, or agree to, or permit the termination of, any Material Subcontract;
(2) Make, or agree to, or permit the making of (a) any material amendment of any Material Subcontract; or (b) any departure by any party from any material provision of any Material Subcontract; or
(3) Permit any Material Subcontract party to assign or transfer to any person any of such Material Subcontract party’s rights or obligations under a Material Subcontract.
(B) Replacement. If any Subcontract at any time lapses, terminates, or otherwise ceases to be in full force and effect (whether by reason of expiration or otherwise), unless the goods, services or rights which were the subject matter of such Subcontract are no longer reasonably required for the Project, the Design-Builder will forthwith enter into, or cause to be entered into, a replacement contract or contracts upon the same or substantially similar terms as the contract so replaced (to the extent reasonably practicable). If at any time any amendment is made to any Material Subcontract, or a replacement Material Subcontract (or any agreement which materially affects the interpretation or application of any Material Subcontract) is entered into, the Design-Builder shall deliver to the Town a copy of each such amendment or agreement within 14 days of the date of its execution or creation, certified as a true copy by the Project Manager.
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ARTICLE 8
SUBSTANTIAL COMPLETION AND FINAL COMPLETION
SECTION 8.1. SUBSTANTIAL COMPLETION DATE CONDITIONS.
(A) Substantial Completion Date Conditions. The following conditions shall constitute the “Substantial Completion Date Conditions”, each of which must be satisfied in all material respects by the Design-Builder in order for the Substantial Completion Date to occur, and each of which must be and remain satisfied as of the Substantial Completion Date:
(1) Physical Completion. All pipelines, facilities, materials and equipment for the Project have been installed in accordance with the requirements of the Contract Documents and inspected (tv’d), (each joint isolated and air tested, Mandrel test for flexible pipes), tested in accordance with Appendix 4 (Baseline Design Documents) and the Project has been cleaned out as necessary and required by the Town and Applicable Law;
(2) Project Equipment. The Project pipes and other equipment are installed in a manner that does not void any Subcontractor or Supplier warranties and such Project pipes and equipment can be operated in a safe and prudent manner; (3) Certificates of Proper Installation. The Design-Builder has delivered to the Town certificates of proper installation for the Project; (4) Verification of Governmental Approval Compliance. The Design-Builder shall provide documentation that all activities and conditions have been met to comply with all the Governmental Approvals and Non-Governmental Approvals; (5) No Encumbrances. There are no Encumbrances registered or recorded on the Project Sites or any part of the Project other than Permitted Encumbrances; (6) Equipment Warranties and Manuals. The Design-Builder shall be in possession of, and shall have delivered to the Town, copies of the warranties of pipes and equipment constituting a part of the Project, together with copies of any related operating manuals supplied by the equipment supplier;
(7) Operations and Maintenance Manual. The Design-Builder has delivered to the Town and the Town has approved in writing, such approval not to be unreasonably withheld or delayed, the pre-final Operations and Maintenance Manual in accordance with the requirements set forth in Appendix 5 (General Design-Build Work Requirements);
(8) Punch List. The Design-Builder and the Town have agreed in writing upon the Punch List (or, if they are unable to agree, the Town shall have prepared and issued the Punch List to the Design-Builder within 30 days of the Design-Builder having submitted its proposed Punch List to the Town);
(9) No Event of Default. The Design-Builder shall have certified that there is no Event of Default by the Design-Builder existing under this Design-Build Contract, or event which with the giving of notice or the passage of time would constitute an Event of Default by the Design-Builder hereunder; and
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(10) Approvals. All Governmental and Non-Governmental Approvals required under Applicable Law and this Design-Build Contract to be obtained by the DesignBuilder which are necessary for the continued use of the Project shall be in full force and effect and certified copies of all such Governmental and Non-Governmental Approvals shall have been delivered to the Town.
The Design-Builder shall notify the Town in writing when all of the Substantial Completion Date Conditions have been achieved and provide evidence and/or certifications to such achievement, as applicable.
SECTION 8.2. CONCURRENCE OR DISAGREEMENT WITH SUBSTANTIAL COMPLETION DATE.
(A) Substantial Completion Date Concurrence. The Substantial Completion Date shall be the day on which the Substantial Completion Date Conditions have been achieved, as determined in accordance with this Section. If the Design-Builder certifies in writing pursuant to Section 8.1 (Substantial Completion Date Conditions) that the Substantial Completion Date Conditions have been achieved, the Town shall determine, within 30 days following its receipt of such report, whether it concurs in such certification. If the Town states in writing that it concurs with the Design-Builder’s certification, the Project shall be deemed to have achieved Substantial Completion and the Substantial Completion Date shall be deemed to have been established on the date of the Design-Builder’s original certification. (B) Substantial Completion Date Disagreement. If the Town determines at any time during such 30-day review period that it does not concur with the Design-Builder’s certification of Substantial Completion, the Town shall immediately send written notice to the Design-Builder of the basis for its disagreement. In the event of any such non-concurrence by the Town, the parties shall meet to discuss such disagreement. Either party may elect to initiate dispute resolution procedures in accordance with Section 11.1 (Dispute Resolution Procedures) following such meeting if the parties are unable to resolve the disagreement.
SECTION 8.3. EFFECT OF UNEXCUSED DELAY; EXTENSION PERIOD. (A) Schedule for Completing the Design-Build Work. The Design-Builder shall achieve Substantial Completion by the Scheduled Substantial Completion Date, as such date may be extended in accordance with this Section. In the event one or more delays in the Design-Build Work caused by an Uncontrollable Circumstance or a Change Order, occurring during the Design-Build Period, the Scheduled Substantial Completion Date shall be the date determined by adding to the Scheduled Substantial Completion Date the aggregate number of days of delay in the performance of the Design-Build Work by the Design-Builder caused by such occurrence.
(B) Unexcused Delay. It is agreed that time is of the essence in the performance of the Design-Build Work. If Substantial Completion has not occurred on or before the Scheduled Substantial Completion Date, the Design-Builder shall be entitled to complete the Substantial Completion Date Conditions in order to secure Substantial Completion of the Project, subject to the Town’s right to terminate this Design-Build Contract in accordance with subsection (D) of this Section. During the Extension Period, the DesignBuilder shall pay delay liquidated damages, as and to the extent provided in subsection (C) of this Section.
(C) Delay Liquidated Damages. Subject to relief in accordance with the terms and conditions of this Design-Build Contract in the event of Uncontrollable 395
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Circumstances, if the Substantial Completion Date occurs subsequent to the Scheduled Substantial Completion Date, the Design-Builder shall pay to the Town delay liquidated damages in the amount of $[__________] [Note: To be finalized on the GMP Amendment Date] per day for each day that the Substantial Completion Date falls after the Scheduled Substantial Completion Date.
(D) Failure to Achieve Substantial Completion by End of Extension Period.
If, as of the last day of the Extension Period, the Design-Builder has not achieved Substantial Completion in accordance with this Article 8, an Event of Default by the Design-Builder shall be deemed to have occurred, notwithstanding any absence of notice, further cure opportunity or other procedural rights accorded the Design-Builder thereunder, and the Town shall thereupon have the right to terminate this Design-Build Contract upon written notice to the Design-Builder. Upon any such termination, the Town shall have all of the rights provided in Article 12 (Breach, Default, Remedies and Termination) upon a termination of this DesignBuild Contract for cause.
SECTION 8.4. FINAL COMPLETION.
(A) Requirements of Final Completion. The Design-Builder shall achieve Final Completion within 60 days following the Substantial Completion Date. “Final Completion” shall be deemed to have occurred when all of the following conditions have been satisfied:
(1) Design-Build Work Completed. All Design-Build Work (including the Punch List items, and all clean up and removal of construction materials, demolition debris and temporary facilities and excluding Warranty Work) is complete and in all respects is in compliance with the Contract Documents;
(2) Deliverable Material. The Design-Builder shall have delivered to the Town all Deliverable Material required by the Contract Documents; (3) Final Record Drawings. The Design-Builder shall have delivered to the Town a final and complete reproducible set of “as-built” construction record drawings, as required by Appendix 7 (Design-Build Work Review Procedures); (4) Final Completion Payment Requirements. The Design-Builder shall have satisfied all requirements associated with payment for Final Completion, as set forth in Section 9.5 (Payment Upon Final Completion); and
(5) Certification. The Design-Builder has submitted written certification that all of the foregoing conditions have been satisfied and the Town has approved the Design-Builder’s certification, which approval shall be effective as of the date of the Design-Builder’s certification.
(B) Notice and Report of Final Completion. When the Design-Builder believes that it has achieved Final Completion, it shall deliver to the Town a written notice thereof (the “Notice of Final Completion”). The Notice of Final Completion shall contain a report in a form acceptable to the Town, and with sufficient detail to enable the Town to determine the completion by the Design-Builder of all Design-Build Work to be performed under this DesignBuild Contract, including completed Punch List items, and such other information that the Town may require to determine whether Final Completion has been achieved. 396
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(C) Achievement of Final Completion. The Town shall, in consultation with the Owner Representative, within 20 days following receipt of the Notice of Final Completion, inspect the Project, review the report submitted by the Design-Builder and either (1) deliver a written certificate to the Design-Builder stating that all conditions set forth in subsection (A) of this Section have been satisfied, or (2) notify the Design-Builder in writing that Final Completion has not been achieved, stating in detail the reasons therefor. In the event that the Town determines that Final Completion has not been achieved, the Design-Builder shall promptly take such action or perform such Design-Build Work as will achieve Final Completion and shall issue to the Town another Notice of Final Completion pursuant to subsection (B) of this Section. Such procedure shall be repeated as necessary until Final Completion is achieved. If the Town, in its written certificate delivered in accordance with this subsection, states that it concurs that all conditions set forth in subsection (A) of this Section have been satisfied, the Project shall be deemed to have achieved Final Completion and Final Completion shall be deemed to have been established on the date of the Design-Builder’s most recent Notice of Final Completion.
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ARTICLE 9
CONTRACT COMPENSATION
SECTION 9.1. COMPENSATION FOR PRELIMINARY SERVICES.
(A) Compensation for Base Preliminary Services.
(1) Phase 1a Base Preliminary Services. The Town shall pay the Design-Builder the Phase 1a Preliminary Services Fee in the manner and subject to the terms and conditions set forth in this Design-Build Contract including Appendix 2 (Preliminary Services). The Design-Builder agrees that the Phase 1a Preliminary Services Fee, when earned, shall be the Design-Builder’s entire compensation and reimbursement for the performance of the Phase 1a Preliminary Services, inclusive of all costs, expenses and disbursements paid or incurred by the Design-Builder, as well as all overhead, administration, risk and profit. The Phase 1a Preliminary Services Fee shall be subject to the maximum amount set forth in Appendix 2 (Preliminary Services) which amount shall be subject to adjustment solely in accordance with Section 5.2 (Changes to the Scope of the Preliminary Services).
(2) Phase 1b Base Preliminary Services. The Town shall pay the Design-Builder the Phase 1b Preliminary Services Fee in the manner and subject to the terms and conditions set forth in this Design-Build Contract including Appendix 2 (Preliminary Services). The Design-Builder agrees that the Phase 1b Preliminary Services Fee, when earned, shall be the Design-Builder’s entire compensation and reimbursement for the performance of the Phase 1b Preliminary Services, inclusive of all costs, expenses and disbursements paid or incurred by the Design-Builder, as well as all overhead, administration, risk and profit. The Phase 1b Preliminary Services Fee shall be subject to the maximum amount set forth in Appendix 2 (Preliminary Services) which amount shall be subject to adjustment solely in accordance with Section 5.2 (Changes to the Scope of the Preliminary Services).
(B) Compensation for Additional Preliminary Services. The Design-Builder shall be compensated for any Additional Preliminary Services on a time and materials or lump sum basis, agreed to in writing through a Change Order or a Contract Amendment executed by the Town and the Design-Builder. Compensation for Additional Preliminary Services may consist of compensation on the basis of Design-Builder’s and Subcontractors’ billing rates set forth in Appendix 2 (Preliminary Services) or as otherwise approved by the Town. The Change Order or Contract Amendment, as applicable, may set forth additional compensation and Payment Request requirements.
(C) Payment Requests and Payment. The Design-Builder shall provide the Town with a Payment Request for the performance of the Preliminary Services on a monthly basis in accordance with the specific requirements set forth in Appendix 2 (Preliminary Services). The Payment Request shall state the amount payable for the month and the total amount paid against the Preliminary Services Fee through the date of the Payment Request, along with a Monthly Progress Report regarding the performance of the Preliminary Services and such other information or documentation as the Town may reasonably require. The Town shall make payment to the Design-Builder of all properly supported invoiced amounts within 45 days of receipt of the Payment Request, subject to the terms and conditions of this DesignBuild Contract. Payments of the Preliminary Services Fee shall not be subject to retainage holdback or, except as provided in subsection (E) of this Section, offset. 398
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(D) Non-Compliant Preliminary Services. Nothing contained in this DesignBuild Contract shall require the Town to pay for any unsatisfactory or duplicative Preliminary Services or for Preliminary Services that are not in compliance with the terms and conditions of this Design-Build Contract. The Town shall not be required to pay the Preliminary Services Fee to the Design-Builder at any time the Design-Builder is in breach or default under this DesignBuild Contract. (E) Billing Statement Disputes. If the Town disputes in good faith any Payment Request for Preliminary Services, the Town shall pay all undisputed amounts when due but may withhold payment of the disputed amount, and shall provide the Design-Builder with a written objection indicating the amount being disputed and the reasons then known to the Town for the dispute. In the event that the Design-Builder disputes any amounts offset by the Town, it shall provide the Town with a written objection indicating the amount being disputed and the reasons then known to the Design-Builder. If the Design-Builder is unable to reach agreement with the Town as to the payment dispute, the Design-Builder may elect to initiate dispute resolution procedures in accordance with Section 11.1 (Dispute Resolution Procedures). When any billing dispute is finally resolved, if payment by the Town to the Design-Builder of amounts withheld is required, such payment shall be made within 30 days of the date of resolution of the dispute, together with interest thereon, from the date originally due, determined as provided in Section 9.9 (Interest on Overdue Obligations) of this DesignBuild Contract.
SECTION 9.2. DESIGN-BUILD PRICE.
The Town shall pay the Design-Builder the Design-Build Price for properly performed and completed Design-Build Work during the Design-Build Period. The DesignBuild Price and the components thereof are defined in Appendix 8 (Design-Build Price). The Town’s obligation to pay the Design-Build Price is subject to the Guaranteed Maximum Price and the terms and conditions of this Article 9 and Appendix 8 (Design-Build Price). Except with respect to (1) payments of the Preliminary Services Fee in accordance with Section 9.1 (Compensation for Preliminary Services), (2) Design-Build Work performed pursuant to an Early Work Package Amendment and (3) Design-Build Work authorized in a Limited Notice to Proceed pursuant to Section 6.1(A)(2) (Limited Notice to Proceed), the Design-Builder shall not be entitled to any compensation for costs or expenses incurred, or Design-Build Work performed, prior to the issuance by the Town of the Notice to Proceed with Design-Build Period Work. Any amount payable for Design-Build Work performed pursuant to an Early Work Package shall, upon the GMP Amendment Date, be part of the Design-Build Price and subject to the Guaranteed Maximum Price and all other terms and conditions of this Article 9 and Appendix 8 (Design-Build Price).
SECTION 9.3. DESIGN-BUILD PRICE PAYMENT PROCEDURE.
(A) Payments. The Design-Builder shall be paid the Design-Build Price in accordance with the final agreed upon Anticipated Design-Build Period Work Cost Schedule of the direct cost of the Design-Build Period Work and the terms and conditions of this Section.
The Design-Builder shall prepare and submit to the Town for its approval preliminary and final drafts of the Anticipated Design-Build Period Work Cost Schedule in accordance with the Contract Standards. After the final Anticipated Design-Build Period Work Cost Schedule is accepted by the Town, it shall be used to assist in the tracking of actual Design-Build Period Costs against the anticipated costs and for keeping track of line item savings and the use of Contingency. The use of line item savings and use of the Design-Builder Contingency will be subject to any conditions or limitations imposed by the Grants. 399
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(B) Payment Request. Subject to subsection (C) of this Section, the DesignBuilder shall be entitled to submit Payment Requests to the Town on a monthly basis and to receive from the Town the payments, which (1) shall be made on a cost substantiated basis; (2) shall be subject to the Guaranteed Maximum Price limitations; and (3) shall be subject to the conditions to payment set forth in this Article 9. Each Payment Request shall be in a form reasonably acceptable to the Town and must be accompanied by a monthly requisition report, which shall include:
(1) A reasonably detailed description of all Design-Build Period Work actually completed to date;
(2) Revisions to the Design-Build Period Work Schedule, which shall reflect changes in the Design-Builder’s critical path schedule since the date of the last Payment Request;
(3) An update to the Anticipated Design-Build Period Work Cost Schedule indicating the amount invoiced against each line item in such month; (4) The amount of the Design-Builder Contingency utilized in such month, the specific uses thereof and the balance of the Design-Builder Contingency remaining after such use;
(5) A certificate of the Project Manager and the Design-Builder Contract Representative certifying (a) the portion of the Design-Build Price payable to the DesignBuilder for completed Design-Build Work; (b) that the Design-Builder is neither in default under this Design-Build Contract nor in breach of any material provision of this Design-Build Contract such that the breach would, with the giving of notice or passage of time, constitute an Event of Default; and (c) that all items applicable to the DesignBuild Period Work entitling the Design-Builder to the requested payment have been completed in accordance therewith and with the Contract Documents; (6) Notice of any Encumbrances which have been filed together with evidence that the Design-Builder has discharged any such Encumbrances or made timely notification to the Payment Bond Surety regarding such Encumbrances; (7) A verified statement setting forth the information required under any Applicable Law and all applicable requirements of the Grants, including all applicable provisions identified in Appendix 12 (Certain Grant Requirements and Guidelines) pertaining to prevailing wages; and
(8) Any other documents or information relating to the Design-Build Work or this Design-Build Contract reasonably requested by the Town or the Owner Representative or as may be required by Applicable Law, this Design-Build Contract or generally accepted accounting practices or principles, including payrolls, receipts, fully detailed invoices with check vouchers or other evidence of Design-Build Period Costs incurred which the Town or the Owner Representative deems necessary to support the amount requested in the Payment Request.
The General Conditions Fee shall be shown as a separate line item on each Payment Request in accordance with Appendix 8 (Design-Build Price). The Design-Builder Fee shall also be shown as a separate line item on each Payment Request. The Design-Builder shall identify the dollar amount of the total expected Design-Builder Fee and General Conditions Fee in each Payment Request based on the total expected Design-Build Period Costs to which the Design-Builder Fee and General Conditions Fee applies in accordance with Appendix 8 (Design-Build Price). The 400
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amount requested for the Design-Builder Fee and General Conditions Fee in each Payment Request shall be in the same proportion to the total expected Design-Builder Fee and General Conditions Fee as the amount requested for the applicable Design-Build Period Costs bears to the total expected Design-Build Period Costs to which the Design-Builder Fee and General Conditions Fee applies, subject to the Guaranteed Maximum Price. (C) Online Project Management System. The Design-Build Work shall be administered through the internet-based project management e-Builder system [____________________] [Note: To be determined as part of the Phase 1a Base Preliminary Services] (hereinafter referred to as the “Project Online System”). The Design-Builder shall conduct all of its invoicing and billing to the Town through the Project Online System, and the Design-Builder shall perform all contract and billing related functions using the Project Online System to submit and process all documentation to be generated, received or used in the performance of the Contract Obligations, including Payment Requests and processing of payments for the Contract Obligations. The [Design-Builder]/[Town] [Note: To be determined as part of the Phase 1a Base Preliminary Services] shall administer the Project Online System software. The software shall be accessible via the internet to all Town designated personnel and Design-Builder Project team members. The Design-Builder shall designate a member of its key personnel to be the sole responsible party for the Design-Builder for receiving and implementing all software updates and to manage all Project documentation through the Project Online System. The Design-Builder will schedule training sessions with Town’s designated personnel on the Project Online System.
(D) Review and Payment. Prior to submitting a Payment Request for the Design-Build Price to the Town, the Design-Builder shall submit a draft Payment Request to the Town Contract Representative and the Owner Representative, including all information required pursuant to this Section. The Owner Representative shall have no fewer than 10 days to review each draft Payment Request. Within such 10-day period, the Owner Representative shall verify or dispute in writing (or by telecommunication promptly confirmed in writing) the Design-Builder’s certification that the Design-Builder has achieved the level of progress indicated and is entitled to payment. If the Owner Representative determines that the DesignBuild Work has progressed as indicated in the draft Payment Request, the Owner Representative shall notify the Town and the Design-Builder, and the Design-Builder shall submit a final, certified Payment Request to the Town, which may not contain any material change from the draft Payment Request reviewed by the Owner Representative, in accordance with subsection (C) of this Section. The Town shall pay the Design-Builder the requisitioned amount included in the final, certified Payment Request within 60 days following receipt, subject to subsection (E) of this Section and the Town’s rights to withhold payments under Section 9.4. Disputes regarding payments of the Design-Build Price shall be resolved in accordance with subsection (E) of this Section. Any undisputed amounts of the Design-Build Price shall be paid within 60 days after receipt of the Design-Builder’s final, certified Payment Request.
(E) Payment Dispute Procedures. If the Town determines that the DesignBuild Period Work required for any payment has not progressed as indicated by the DesignBuilder in the draft Payment Request, or otherwise disputes any Payment Request, the Town shall provide prompt written notice to the Design-Builder as to the Town’s reasons, in reasonable detail, for such determination or the basis for such dispute. After receiving such determination notice, the Design-Builder may make the necessary corrections and resubmit the Payment Request, or the Town may agree on a revised amount, in which case the DesignBuilder shall promptly submit a final, certified Payment Request to the Town as to any undisputed amount. If the Design-Builder is unable to reach agreement with the Town as to the progress of the Design-Build Work or the payment dispute, the Design-Builder may exercise its right to contest the Town’s determination in accordance with the dispute resolution 401
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procedures set forth in Section 11.1 (Dispute Resolution Procedures). Any proceedings undertaken to resolve a dispute arising under this subsection (E) shall immediately terminate if (1) the Design-Builder demonstrates to the Town that the Design-Build Period Work has progressed as indicated in the Payment Request giving rise to the dispute and that the disputed Payment Request is correct, and (2) the Town concurs with such demonstration. The Design-Builder shall not be entitled to payment of the amount so requisitioned and disputed except upon resolution of the dispute in accordance with this subsection (E); provided, however, that the Town shall pay all requisitioned amounts which are not in dispute in accordance with subsection (C) of this Section. In the event that upon resolution of any such dispute, it is determined that the Design-Builder was properly entitled to the disputed amount as of a date earlier than the date on which payment is actually made, the Design-Builder shall be entitled to receive, promptly following such resolution, such disputed amount plus interest on such disputed amount as and to the extent provided under Section 9.9 (Interest on Overdue Obligations).
(F) Retainage. Pursuant to California Public Contract Code Section 7201, the Town will withhold five percent (5%) from each payment to the Design-Builder until Final Completion. The Town will release such retention amount to the Design-Builder forty-five (45) days after Final Completion has been achieved. [Note: During the Phase 1a Preliminary Services, the Town will endeavor to discuss mechanisms to accelerate retainage payments with the agency providing the Grant for construction.] Subject to approval of and coordination with the applicable Granting Agencies, pursuant to California Public Contract Code Section 22300, for monies earned by the Design-Builder and withheld by the Town to secure the performance of this Design-Build Contract, the Design-Builder, may, at its option, choose to substitute securities meeting the requirements of said California Public Contract Code Section 22300.
Such securities shall be valued by the Town Treasurer, whose decision shall be final.
Securities not listed under California Public Contract Code Section 22300 or California Government Code Section 16430 must be pre-qualified by the Town Treasurer before bid opening in order to be accepted by the Town as security. (G) Cost Control and Reporting. The Design-Builder shall implement a Cost/Schedule Status Report (CSSR) program for Design-Build Period Work cost control, which system shall be disclosed to and reviewed and approved by the Town and the Owner Representative prior to the GMP Amendment Date. The Design-Builder shall develop cash flow reports and forecasts that comply with the Document Management Plan and that satisfy the Town’s reporting requirements for the Grants and as otherwise reasonably requested or required by the Town and the Owner Representative, including a good faith calendar quarterly estimate of payments of the Design-Build Price throughout the Design-Build Period, specifying the range of minimum and maximum monthly payments, which shall not exceed the Guaranteed Maximum Price. The Design-Builder shall promptly (within seven days) after acquiring such information, identify and report to the Town and the Owner Representative all variances between estimated costs and actual costs of the Design-Build Period Work, including any proposed corrective action to be taken by the Design-Builder. (H) Certification of Amounts Due. Whenever requested by the Town or the Owner Representative, the Design-Builder shall submit a sworn statement certifying all amounts then due (or yet to become due) the Design-Builder for the Design-Build Period Work (or any portion thereof) and describing any payment or other dispute which may exist between the Design-Builder and any Subcontractor.
SECTION 9.4. PERMISSIBLE WITHHOLDINGS.
(A) Permissible Withholdings. In addition to the amounts required to be retained pursuant to Section 9.3(F) (Retainage), the Town may disapprove and withhold and 402
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retain all or any portion of any payment requested in any Payment Request for Design-Build Period Work in an amount equal to the sum of:
(1) Any liquidated damages or reimbursement payments which are due and owing to the Town hereunder;
(2) Any indemnification amounts which are due and owing to the Town hereunder and with respect to which a claim has been filed against a the Town Indemnitee by a third party in accordance with Applicable Law; (3) Any premiums or amounts paid to procure Required Insurance or similar insurance coverage paid by the Town pursuant to Section 13.1(E) (Maintenance of Insurance Coverage) and Appendix 10 (Insurance Requirements); (4) Any other deductions which are required by Applicable Law; (5) Any payments with respect to which documents to be delivered in connection therewith are not correct and complete;
(6) Any payments to the extent that the Design-Build Period Work covered by such Payment Request (or any previous Payment Request) does not comply with this Design-Build Contract;
(7) Damage to the work of a Separate Contractor to the extent caused by the Design-Builder or any Subcontractor;
(8) Any payments with respect to which any person has filed a Lien resulting from the acts or omissions of the Design-Builder in performing the Design-Build Work and such Lien remains unreleased or unbonded;
(9) All requisitioned payments if an Event of Default of the Design-Builder has occurred under Section 12.2 (Events of Default by the Design-Builder); and (10) In the event the Design-Builder fails to pay any Taxes, assessments, penalties or fees imposed by any Governmental Body, then the Design-Builder authorizes the Town to deduct and withhold or pay over to the appropriate Governmental Body those unpaid amounts upon demand by the Governmental Body.
In addition, the Town may withhold payment for persistent and uncured Design-Builder noncompliance with the administrative provisions of this Design-Build Contract. In the event of any permissible withholding under this Section, the Town shall notify the Design-Builder in writing at least seven days prior to the date payment is otherwise due. The notice shall indicate the specific amounts the Town intends to withhold, the reasons and contractual basis for the withholding, and the specific measures the Design-Builder must take to rectify the Town’s concerns. Any dispute associated with any such withholding shall be handled in accordance with Section 9.3(E) (Payment Dispute Procedures).
SECTION 9.5. PAYMENT UPON FINAL COMPLETION.
(A) Final Completion Payment Request. In connection with the achievement of Final Completion in accordance with Section 8.4 (Final Completion), the Design-Builder shall prepare and submit to the Town and the Owner Representative a Final Completion Payment Request. The Final Completion Payment Request shall enclose:
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(1) A notarized affidavit in duplicate stating under oath that all Subcontractors, vendors, and other persons or firms who have furnished or performed labor or furnished materials for the Design-Build Period Work have been fully paid or satisfactorily secured; and if requested by the Town, the Design-Builder shall submit further proof including waiver or release of lien or claims from any Subcontractors or Suppliers;
(2) A certificate of the Surety for both the Performance Bond and the Payment Bond certifying that the Surety consents to payment for Final Completion and agrees that such payment shall not relieve the Surety of any of its obligations under the Performance Bond or the Payment Bond;
(3) A general release executed by the Design-Builder waiving, upon receipt of payment for Final Completion, all claims arising out of or resulting from the DesignBuild Period Work, except those claims made in writing to the Town and remaining unsettled at the time of such payment, which claims shall be specifically listed in an attachment to the general release, identifying the claimant and the nature of the claim; and
(4) Certificates of insurance confirming that required coverages will remain in effect consistent with the requirements of this Design-Build Contract. (B) Final Completion Payment. If based on the Owner Representative’s (1) observation of the Design-Build Work, (2) final inspection, and (3) review of the Final Completion Payment Request and other documents required by subsections (A) and (C) of this Section and Section 8.4 (Final Completion), the Owner Representative is satisfied that the conditions for Final Completion have been achieved, the Owner Representative shall, within 15 days after receipt of the Final Completion Payment Request, furnish to the Town and the Design-Builder the Owner Representative’s recommendation of payment for Final Completion.
If the Owner Representative is not satisfied, the Owner Representative shall return the Final Completion Payment Request to the Design-Builder, indicating in writing the reasons for not recommending payment, in which case the Design-Builder shall either (1) exercise its right to contest the Owner Representative’s determination in accordance with Section 9.3(E) (Payment Dispute Procedures), or (2) make the necessary corrections and resubmit the Final Completion Payment Request.
(1) Town Concurrence. If the Town concurs with the Owner Representative’s recommendation of payment for Final Completion, the Town shall, within 15 days, file a written notice of Final Completion and notify the Design-Builder of such concurrence.
As soon as reasonably practicable (but in no event later than [45] days after the Town’s original receipt of the Design-Builder’s Final Completion Payment Request, subject to the Town’s right to dispute payment in accordance with this Design-Build Contract and Applicable Law) after filing such notice, the Town shall pay to the Design-Builder the balance of the Design-Build Price, subject to any withholdings and any other provisions governing final payment specified herein.
(2) Town Non-Concurrence. If the Town does not concur with the Owner Representative’s determination, the Town shall return the Payment Request to the Design-Builder, indicating in writing its reasons for refusing payment for Final Completion. The Design-Builder shall promptly make the necessary corrections and resubmit the Payment Request to the Town and the Owner Representative. The Town’s written determination shall bind the Design-Builder, unless the Design-Builder delivers to the Town written notice of a claim within 30 days after receipt of the Town’s determination.
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Payment for Final Completion does not constitute a waiver by the Town of any rights relating to the Design-Builder’s obligations under this Design-Build Contract. Except as specifically provided in subsection (A) of this Section with respect to exceptions taken in the DesignBuilder’s general release, payment for Final Completion constitutes a waiver of all claims by the Design-Builder against the Town, including all claims associated with Uncontrollable Circumstances, relating to the Design-Build Period Work, the payment of the Design-Build Period Costs or otherwise in connection with the Design-Build Period. (C) Final Determination and Approval of Design-Build Price.
Notwithstanding any of the foregoing, the Town shall have no obligation to make payment for Final Completion hereunder until a final accounting of the Design-Build Period Costs has been submitted by the Design-Builder and has been verified by the Town and the Owner Representative. Such accounting shall be provided by the Design-Builder in connection with the Final Completion Payment Request. The aggregate total of payments to the Design-Builder with respect to the Design-Build Price (including amounts retained pursuant to Section 9.3(F) (Retainage)) shall not exceed the total of the actual Design-Build Period Costs, as verified by the Town and the Owner Representative from the Design-Builder’s final accounting, plus the Design-Builder Fee and the General Conditions Fee, which together shall not exceed the Guaranteed Maximum Price. If payments to the Design-Builder exceed that which is due and owing the Design-Builder pursuant to this Article 9, the Design-Builder shall promptly refund the excess to the Town. The Design-Builder acknowledges and agrees that the Town shall have the right to withhold and retain amounts from payment for Final Completion in accordance with Section 9.4 (Permissible Withholdings).
(D) Completion of Design-Build Period Work. Notwithstanding payment for Final Completion pursuant to this Section, the Design-Builder acknowledges and agrees that the performance of the Design-Build Period Work is not complete until the expiration of the Warranty Period, and that the Design-Builder shall have the continuing obligation to perform Warranty Work pursuant to the terms and conditions of Article 10 (Project Warranties) until the expiration of the Warranty Period. To the extent the Design-Builder is entitled to payment of any amount retained by the Town pursuant to Section 9.3(F) (Retainage) upon expiration of the Warranty Period, the Design-Builder shall provide the Town with a final Payment Request in a form reasonably acceptable to the Town, and the Town shall pay the amount due within 30 days following receipt of the final Payment Request.
SECTION 9.6. NO SUBSTANTIAL COMPLETION, WAIVER OR RELEASE.
Unless other provisions of this Design-Build Contract specifically provide to the contrary, none of the following, without limitation, shall be construed as (i) the Town’s acceptance of any Design-Build Work which is defective, incomplete, or otherwise not in compliance with this Design-Build Contract, (ii) the Town’s release of the Design-Builder from any obligation under this Design-Build Contract, (iii) the Town’s extension of the DesignBuilder’s time for performance, (iv) an estoppel against the Town, or (v) the Town’s acceptance of any claim by the Design-Builder:
(1) The Town’s payment to the Design-Builder or any other person with respect to performance of the Design-Build Work;
(2) The review, consent, approval or acceptance, as applicable, of any submissions, permit applications, punch lists, other documents, certifications, or Design-Build Work of the Design-Builder or any Subcontractor by the Town, the Owner Representative or any other person;
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(3) The review of (or failure to prohibit) any construction applications, means, methods, techniques, sequences, or procedures for the Design-Build Work by the Town, the Owner Representative or any other person; (4) The entry at any time on the Project Site (including any area in which the Design-Build Work is being performed) by the Town, the Owner Representative or any other person;
(5) Any observation, inspection or testing of (or failure to observe, inspect or test) any Design-Build Work (whether finished or in progress) by the Town, the Owner Representative or any other person;
(6) The failure of the Town, the Owner Representative or any other person to respond in writing to any notice or other communication of the Design-Builder; or (7) Any other exercise of rights or failure to exercise rights by the Town hereunder.
SECTION 9.7. CHANGES IN DESIGN-BUILD PRICE.
(A) Determination of Base Guaranteed Maximum Price Adjustment. Without limiting any requirement of Article 14 (Uncontrollable Circumstances), any Base Guaranteed Maximum Price Adjustment included in a Change Order or Work Change Directive shall be determined as follows:
(1) Where unit prices set forth in the Contract Documents are applicable to the Design-Build Period Work that is the subject of the Change Order or Work Change Directive, by application of such unit prices to the quantities of the items involved; (2) To the extent unit prices are not applicable, by a mutually agreed lump sum; and
(3) To the extent unit prices are not applicable and the parties are unable to reach agreement on a lump-sum value, on the basis of the actual cost of performing the applicable Design-Build Period Work (subject to Cost Substantiation and excluding any cost attributable to Design-Builder Fault), plus the Design-Builder Fee and a Subcontractor mark-up determined in accordance with this Section. (B) Design Professional Services. Without limiting anything in subsection (C) of this Section and subject to any unit rates specified in the Contract Documents, for purposes of determining the amount payable for Design Professional Services included in any Change Order or Work Change Directive, the rates payable for Design-Builder personnel and personnel of Subcontractors providing Design Professional Services shall not exceed their then currently applicable rates for similar services on projects of similar size and scope to the Design-Build Period Work. The Design-Builder shall use commercially reasonable efforts to use available Design-Builder personnel for additional work hereunder before using Subcontractors. (C) Construction Subcontractor’s Maximum Mark-Up on Subcontracted Construction Work. The price payable to all Subcontractors for work performed under Construction Subcontracts, including Construction Subcontractor overhead and mark-ups for risk and profit, shall be commercially reasonable. A Change Order or Work Change Directive may provide for a mark-up payable to Construction Subcontractors for their Subcontractor risk, profit, administration, and all other overhead where Construction work that is the subject of the Change Order or Work Change Directive is performed through such Construction 406
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Subcontractors. Any such Construction Subcontractor mark-up shall not exceed 5% of the costs incurred by such Construction Subcontractor in respect of labor, materials, equipment, supplies and any lower-tier Construction Subcontract.
SECTION 9.8. COST SUBSTANTIATION.
(A) Required Substantiation. Without limiting anything in Appendix 8 (Design-Build Price), the Design-Builder shall substantiate any costs for which it claims compensation hereunder, other than (1) the Design-Builder Fee and (2) the General Conditions Fee, each of which was proposed and negotiated on a percentage basis, and any other costs that are part of a negotiated lump sum price. [Note: General Conditions Fee to be agreed to on the GMP Amendment Date.] In incurring costs which are or may be subject to Cost Substantiation, the Design-Builder shall utilize competitive practices to the maximum reasonable extent (including, where practicable, obtaining three competing bids, quotes, proposals or estimates for costs expected to be in excess of $[50,000]), and shall enter into Subcontracts on commercially reasonable terms and prices in light of the work to be performed and the Town’s potential obligation to pay for it. [Note: Amount to be determined based on conditions or limitations imposed by the Grants.]
(B) Cost Substantiation Certificate. Any Payment Request for compensation relating to costs requiring Cost Substantiation shall be accompanied by a certificate stating that the Design-Build Period Costs or other costs being invoiced (1) are properly payable under this Design-Build Contract, and specifying the provisions of this Design-Build Contract under which compensation is due; and (2) are equal to amounts paid by the Design-Builder for Design-Build Work that has been properly performed. The Cost Substantiation certificate shall describe the competitive or other process utilized by the Design-Builder to obtain the commercially reasonable price, and shall state that such services and materials are reasonably required pursuant to this Design-Build Contract. Each Cost Substantiation certificate shall be accompanied by copies of all documentation reasonably necessary to demonstrate that the Design-Build Period Costs have been paid and are reasonable. Such documentation shall be in a format and level of detail reasonably acceptable to the Town. To the extent reasonably necessary to confirm the payment of costs that are subject to Cost Substantiation, copies of timesheets, invoices, canceled checks, expense reports, receipts and other documents, as appropriate, including the schedule of values for fixed price components of the Design-Build Work accompanied by documentation demonstrating the progress of such Design-Build Work shall be provided.
SECTION 9.9. INTEREST ON OVERDUE OBLIGATIONS.
Except as otherwise provided for herein, all amounts due hereunder, whether as damages, credits, revenue, charges or reimbursements, that are not paid when due shall bear interest at the rate of interest which is the Overdue Rate, on the amount outstanding from time to time, on the basis of a 365-day year, counting the actual number of days elapsed, and such interest accrued at any time shall, to the extent permitted by Applicable Law, be deemed added to the amount due as accrued.
SECTION 9.10. RETENTION AND AUDIT OF BOOKS AND RECORDS. (A) Books and Records. The Design-Builder shall, and shall cause its Subcontractors to, prepare and maintain proper, accurate and complete books and records regarding the Contract Obligations and all transactions related thereto, including all books of account, bills, vouchers, invoices, personnel rate sheets, cost estimates and bid computations and analyses, Subcontracts, time books, daily job diaries and reports, correspondence, and any other documents showing all acts and transactions in connection with or relating to or 407
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arising by reason of the Contract Obligations, any Subcontract or any operations or transactions in which the Town has or may have a financial or other material interest hereunder (collectively, “Books and Records”). The Design-Builder and its Subcontractors shall produce such Books and Records for inspection, audit and reproduction within 15 days of request by the Town. All financial records of the Design-Builder and its Subcontractors shall be maintained in accordance with generally accepted accounting principles and generally accepted auditing standards. The Design-Builder and its Subcontractors shall maintain such Books and Records in accordance with subsection (E) of this Section. The provisions of this Section shall survive termination of this Design-Build Contract. (B) Town Rights to Audit and Examine Payments. All payments whatsoever by the Town to the Design-Builder and all Contract Obligations shall be subject to audit at any time by the Town, the Granting Agencies and the Federal Agencies. The Design-Builder shall provide all evidence necessary to support Cost Substantiation as required under this DesignBuild Contract, and allow the Town, the Granting Agencies and the Federal Agencies access to the Design-Builder’s Books and Records. The Design-Builder shall require all Subcontractors to comply with the provisions of this Section and include the requirements hereof in the written contract between the Design-Builder and the Subcontractor. The Design-Builder shall also require all Subcontractors to include the requirements of this Section in any lower tier Subcontracts relating to the Project.
(C) Notice and Process. Upon written notice by the Town, the Design-Builder shall, and shall cause its Subcontractors to, promptly (in no event later than 15 days following the notice) make available at its office at all reasonable times the Books and Records for examination, audit, or reproduction. Notice shall be in writing, delivered by hand or by certified mail, and shall provide not fewer than five days’ prior notice of the examination or audit. The Town may take possession of such Books and Records by reproducing such Books and Records for off-site review or audit. When requested in the Town’s written notice of examination or audit, the Design-Builder shall provide the Town with copies of electronic and electronically stored Books and Records in a reasonably usable format that allows the Town to access and analyze all such Books and Records. For Books and Records that require proprietary software to access and analyze, the Design-Builder shall provide the Town with two licenses with maintenance agreements authorizing the Town to access and analyze all such Books and Records. If the Design-Builder is unable to provide the licenses, the Design-Builder shall provide the Town with access to the Design-Builder’s accounting system whereby the Town can obtain applicable Books and Records, including job cost reports, material distribution reports, labor cost reports, labor productivity reports, standard time/overtime analysis reports, man-hour reports, and the like.
(D) Selection of Auditor or Examiner and Determination of Scope. The Town has discretion as to the selection of an examiner or auditor and the scope of the examination or audit.
(E) Preservation of Books and Records. The Design-Builder shall preserve all of its Books and Records, and the Town may examine, audit, or reproduce Books and Records, from the Contract Date until the later of five (5) years after the latest of:
(1) Final payment under this Design-Build Contract;
(2) Final settlement of a termination for convenience under Section 12.6 (Town Convenience Termination Rights);
(3) The final resolution of any dispute; and
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(4) The last of the notices from the Granting Agencies to the Town that the applicable Grant contract has been closed according to the record retention requirements at 2 CFR 200.334.
The failure by the Design-Builder to make available to the Town Books and Records in accordance with this Section or the Design-Builder’s refusal to cooperate with a notice of audit or examination shall be deemed a material breach of this Design-Build Contract and grounds for termination.
(F) Overpayment. In the event an audit by the Town determines that the Design-Builder cannot document a cost or expense for which payment has been made, or that the Town has overpaid the Design-Builder, the Design-Builder, upon demand, shall refund to the Town the amounts overpaid or undocumented. If the overpayment exceeds 1% of the total amount that should have been properly paid by the Town during the period audited, then the Design-Builder shall, in addition, reimburse the Town for any and all fees and costs incurred in connection with the inspection or audit. Payments to the Design-Builder, or approval by the Town of any requisition for payment submitted by the Design-Builder, shall in no way affect the Design-Builder’s obligation hereunder or the right of the Town to obtain a refund of any payment to the Design-Builder which is in excess of that to which it was lawfully entitled. 409
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ARTICLE 10
PROJECT WARRANTIES
SECTION 10.1. PROJECT WARRANTIES.
(A) Project Warranties Defined. The Design-Builder warrants to the Town that the Design-Build Work, including all completed materials, equipment, systems and structures comprising the Project, shall: (i) be new, of recent manufacture and of good quality; (ii) conform to the requirements of the Contract Documents; (iii) be free of material faults or defects; and (iv) be suitable for its intended purposes, as established by the Contract Documents (the “Project Warranties”). The Project Warranties are further subject to the following:
(1) Inclusions. The Project Warranties include remedy for damage or defect caused by Substantial Completion Test performed by the Design-Builder or performed by the Town as directed by the Design-Builder.
(2) Exclusions. The Project Warranties exclude remedy for damage or defect caused by capital modifications not undertaken or executed by the Design-Builder under this Design-Build Contract. In addition, except as provided in Item (1), above, the Project Warranties exclude remedy for damage or defect caused by improper or insufficient maintenance or improper operation, or for normal wear and tear under normal usage.
(B) Term of the Project Warranties. The Project Warranties set forth in this Article 10 shall be in full force and effect for the period of time beginning on the Substantial Completion Date and, subject to Section 10.2(D) (Extension of Warranties), continuing for [one year] following the Substantial Completion Date (the “Warranty Period”). [Note: Duration of warranty period to be agreed to by parties, in any event prior to GMP Submittal.] SECTION 10.2. WARRANTY WORK.
(A) “Call-Back” Obligations. If, at any time during the Warranty Period, the Project or any of the Design-Build Work is found to be malfunctioning, defective or otherwise not in accordance with the requirements of the Project Warranties, the Design-Builder shall correct the condition promptly after receipt of written notice from the Town to do so. The Town shall provide such notice promptly after discovery of the condition. The Design-Builder shall respond to critical or emergency service calls from the Town within four hours through teleconference discussions or virtual meetings (or other reasonable means agreed upon by the Design-Builder and the Town). The Design-Builder shall respond to non-critical or nonemergency calls within twenty-four hours by reasonable means agreed upon by the DesignBuilder and the Town. If the Town determines as a result of such teleconference discussions or virtual meetings, that an onsite visit from the Design-Builder is necessary to address such critical or emergency situation, the Design-Builder shall within twelve hours of the initial response to such critical or emergency service call, inspect the Project and, while on site, either correct the problem or initiate a course of action that will fully correct the problem within a reasonable period of time in accordance with Good Engineering and Construction Practice and the specific requirements of this subsection (A). If the Town determines as a result of such teleconference discussions or virtual meetings, that no onsite visit from the Design-Builder is necessary to address such critical or emergency situation, the Design-Builder shall nonetheless initiate a course of action that will fully correct the problem within a reasonable period of time in accordance with Good Engineering and Construction Practice and the specific requirements of this subsection (A). Any such response shall require that a competent representative or 410
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representatives of the Design-Builder familiar with the Project, including its specific equipment, design and operational requirements, participate in such response. In critical or emergency situations, the correction shall be made in the minimum amount of time required in accordance with Good Engineering and Construction Practice. (B) Right of the Town to Proceed with Corrective Action; Design-Builder Liability. If the Design-Builder fails to commence and complete the steps set forth in subsection (A) of this Section within the required time frames, in addition to any other remedies provided under this Design-Build Contract, the Security Instruments or Applicable Law, the Town may commence and complete the correction of such nonconforming DesignBuild Work with its own forces or with third party contractors. If the Town does perform such corrective work, the Design-Builder shall be responsible for all costs reasonably incurred in performing such correction. The Town shall have the right to charge any cost reasonably incurred by the Town in performing corrective action pursuant to this subsection (B) against the funds retained to secure the Warranty Work pursuant to Section 9.3(F) (Retainage); provided, however, that the amount retained by the Town pursuant to Section 9.3(F) (Retainage) shall in no way be deemed to constitute a limit of liability to the Design-Builder for the performance of Warranty Work, and the Design-Builder shall be required to reimburse the Town for all costs reasonably incurred in performing corrective action pursuant to this subsection (B) to the extent such costs exceed the retained funds. (C) No Period of Limitation on Other Obligations. Nothing contained in this Section shall be construed to establish a period of limitation with respect to other obligations that the Design-Builder has under this Design-Build Contract or under Applicable Law with respect to the Design-Build Work, including warranties and obligations with respect to latent defects. The Warranty Period relates only to the specific obligations of the Design-Builder to respond to notices from the Town under the Project Warranties, and has no relationship to the time within which the obligation of the Design-Builder to comply with this Design-Build Contract may be enforced, nor the time within which proceedings may be commenced to establish the Design-Builder’s liability with respect to its obligations under this Design-Build Contract.
(D) Extension of Warranties. The “call-back” obligations set forth in this Section shall apply to all Design-Build Work re-done or corrected pursuant to this DesignBuild Contract. The “call-back” obligations for re-done or corrected elements of the DesignBuild Work shall extend beyond the Warranty Period, if necessary, to provide a minimum oneyear period following acceptance by the Town of such re-done or corrected Design-Build Work; provided, however, that in no event shall such “call-back” obligations extend beyond one year following the expiration of the Warranty Period.
(E) Manufacturers’ Warranties. During the Warranty Period, the DesignBuilder (or the Town) shall be permitted to enforce all warranties provided by manufacturers, suppliers and other third parties with respect to the Design-Build Work. However, as provided in Section 10.4(A) (Manufacturers’ Warranties Generally), no such warranty shall relieve the Design-Builder of any obligation with respect to the Project Warranties. (F) Performance of Warranty Work. The Design-Builder acknowledges that time is of the essence in the performance of all Warranty Work required under this Section in light of the Project’s essential public purpose. Accordingly, all Warranty Work shall be performed in accordance with the Contract Standards and within the minimum amount of time required in accordance with Good Engineering and Construction Practice. The Design-Builder shall perform or cause to be performed all Warranty Work performed under this Section in a manner that will minimize interference with the ongoing operations of the Project and the Town Distribution System. The Design-Builder shall provide a written plan for all proposed Warranty Work (unless expressly waived by the Town).
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(G) Responsibility for Costs. The Design-Builder shall be fully responsible for the costs associated with all Warranty Work, and shall reimburse the Town for its costs resulting from a breach of the Project Warranties, subject to the terms and conditions of this Design-Build Contract.
SECTION 10.3. PROJECT WARRANTIES NOT EXCLUSIVE.
The Design-Builder acknowledges and agrees that the Project Warranties are in addition to, and not in limitation of, any other warranties, rights and remedies available under this Design-Build Contract or Applicable Law, and shall not limit the Design-Builder’s liability or responsibility imposed by this Design-Build Contract or Applicable Law with respect to the Design-Build Work, including liability for design defects, latent construction defects, strict liability, negligence or fraud. The provisions of this Section shall survive the termination of this Design-Build Contract.
SECTION 10.4. MANUFACTURERS’ WARRANTIES.
(A) Manufacturers’ Warranties Generally. Without limiting any of the Project Warranties, the Design-Builder shall, for the protection of the Town, obtain from all Subcontractors (including vendors, suppliers and other persons from which the Design-Builder procures structures, improvements, fixtures, machinery, equipment and materials) such warranties and guarantees as are normally provided with respect thereto and as may be specifically required by the Contract Standards, each of which is hereby assigned to the Town to the full extent of the terms thereof. No such warranty or guarantee shall relieve the DesignBuilder of any obligation hereunder, and no failure of any warranted or guaranteed structures, improvements, fixtures, machinery, equipment or material shall be the cause for any increase in the Guaranteed Maximum Price or otherwise excuse the Design-Builder from the performance of any Design-Build Work or Warranty Work obligations, unless such failure is itself attributable to an Uncontrollable Circumstance.
(B) No Limitation on Third Party Warranties. Nothing in this Design-Build Contract is intended to limit any third party warranty that provides the Town with greater warranty rights than those provided under the Project Warranties, as set forth in this DesignBuild Contract. 412
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ARTICLE 11
DISPUTE RESOLUTION
SECTION 11.1. DISPUTE RESOLUTION PROCEDURES.
(A) Compliance with California Public Contract Code. Notwithstanding any other provision herein, all claims by the Design-Builder for $375,000 or less against the Town shall be subject to the procedures set forth in Sections 20104 to 20104.6 of the California Public Contract Code. The provisions of Sections 20104 to 20104.6 of the California Public Contract Code or a summary thereof is included in Appendix 13 (Certain Provisions of the California Public Contract Code) and shall be set forth in the Issued for Construction Drawings and Specifications. Notwithstanding any other provision herein, all claims by the DesignBuilder against the Town shall be subject to the procedures set forth in Sections 9201 to 9204 of the California Public Contract Code. The provisions of Sections 9201 to 9204 of the California Public Contract Code or a summary thereof is included in Appendix 13 (Certain Provisions of the California Public Contract Code) and shall be set forth in the Issued for Construction Drawings and Specifications. For any Design-Build Work-related claim by the Design-Builder of less than $375,000, such claim shall be processed and resolved pursuant to the resolution of claims provisions set forth in California Public Contract Code Sections 20104 to 20104.6. In addition, claim filing deadlines shall be governed by the California Government Claims Act (California Government Code Sections 900 to 915.4) and California Public Contract Code Section 20104.2.
(B) Alternative Dispute Resolution Procedures. If (i) the provisions of Section 9204 of the California Public Contract Code are no longer in effect, (ii) the mediation conducted pursuant to Section 9204 of the California Public Contract Code does not resolve the parties dispute, or (iii) for any claims brought by the Town against the Design-Builder, each party shall follow the dispute resolution procedures set forth in this Section 11.1(B) (Alternative Dispute Resolution Procedures) to attempt to resolve and settle disputes between themselves concerning the rights, obligations and liabilities of the parties. The dispute resolution procedures set forth in this Section are intended to encourage a negotiated resolution of disputes in a prompt and efficient manner without resort to litigation, which should be a last resort.
(1) Informal Negotiations. Representatives of the Town and the Design-Builder with day-to-day involvement in the administration of this Design-Build Contract and the performance of the Contract Obligations shall initially and promptly enter into negotiations to attempt to address and resolve any disputes that may arise concerning this Design-Build Contract. In connection with such negotiations, the party asserting the dispute shall provide the other with a written description of the nature of the dispute, along with reasonable supporting documentation. The parties shall consider involving senior representatives and other upper management personnel of each party in the informal negotiation process, as well as other representatives of the parties not actively involved in the day-to-day activities associated with the dispute who might be able to take a broader look at the dispute in the context of the overall objectives of the Project and this Design-Build Contract. At the Town’s request, the Design-Builder shall involve senior representatives of any of its Subcontractors in such negotiations. Upon the expenditure of reasonable efforts towards resolution of a dispute through such informal negotiations without reaching agreement, a party may declare that the informal negotiations have been exhausted and such party may request Non-Binding Mediation or may initiate the institution of Legal Proceedings.
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(2) Rights to Request and Decline Non-Binding Mediation. Subject to the requirements of paragraph (1) of this Section 11.1(B) (Alternative Dispute Resolution Procedures), either party may request Non-Binding Mediation of any dispute arising under this Design-Build Contract, whether technical or otherwise. Non-Binding Mediation is voluntary and will not be a condition precedent to initiating the institution of Legal Proceedings by either party. The non-requesting party may decline the request in its sole discretion. If there is concurrence that any particular matter shall be mediated, the provisions of this Section 11.1(B) (Alternative Dispute Resolution Procedures) shall apply. The costs of such Non-Binding Mediation shall be divided equally between the Town and the Design-Builder.
(3) Procedure. The Mediator shall be a professional engineer, attorney or other professional mutually acceptable to the parties who has no current or on-going relationship to either party. The Mediator shall have full discretion as to the conduct of the mediation. Each party shall participate in the Mediator’s program to resolve the dispute until and unless the parties reach agreement with respect to the disputed matter or one party determines in its sole discretion that its interests are not being served by the mediation. (4) Non-Binding Effect. Mediation is intended to assist the parties in resolving disputes over the correct interpretation of this Design-Build Contract.
No Mediator shall be empowered to render a binding decision. (5) Relation to Judicial Legal Proceedings. Nothing in this Section shall operate to limit, interfere with or delay the right of either party under this Article 11 to commence judicial Legal Proceedings upon a breach of this DesignBuild Contract by the other party, whether in lieu of, concurrently with, or at the conclusion of any Non-Binding Mediation.
SECTION 11.2. FORUM FOR DISPUTE RESOLUTION.
It is the express intention of the parties that all Legal Proceedings related to this Design-Build Contract or to the Project or to any rights or any relationship between the parties arising therefrom shall be solely and exclusively initiated and maintained in State or federal courts located in Butte County, California, having appropriate jurisdiction therefor. The DesignBuilder and the Town each irrevocably consents to the jurisdiction of such courts in any such Legal Proceeding and waives any objection it may have to the laying of the jurisdiction of any such Legal Proceeding.
SECTION 11.3. CONTINUANCE OF PERFORMANCE DURING DISPUTE.
Unless otherwise directed in writing by the Town, at all times during the course of any dispute resolution procedure or Legal Proceeding, the Design-Builder shall continue with the performance of the Contract Obligations in a diligent manner and in accordance with the applicable provisions of this Design-Build Contract. The Town shall continue to satisfy its uncontested payment obligations to the Design-Builder during the pendency of any such dispute, subject to the terms and conditions of this Design-Build Contract. Records of the Contract Obligations performed during such time shall be kept in accordance with the applicable provisions of this Design-Build Contract.
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ARTICLE 12
BREACH, DEFAULT, REMEDIES AND TERMINATION
SECTION 12.1. REMEDIES FOR BREACH.
(A) Generally. The parties agree that, except as otherwise provided in this Section, in the event that either party breaches this Design-Build Contract, the other party may exercise any legal rights it may have under this Design-Build Contract and under Applicable Law. Neither party shall have the right to terminate this Design-Build Contract except as expressly provided in this Article 12.
(B) No Effect On Contract Obligations. The exercise by the Town of any of its rights under this Article 12 shall not reduce or affect in any way the Design-Builder’s responsibility hereunder to perform the Contract Obligations. (C) No Duplicative Recovery; Express Remedies. Every right to claim compensation, indemnification or reimbursement under this Design-Build Contract shall be construed so that recovery is without duplication to any other amount recoverable under this Design-Build Contract. Without prejudice to any legal right or entitlement of the DesignBuilder to specific performance or injunctive relief, the Design-Builder’s sole remedy in relation to matters for which an express right or remedy is stated in this Design-Build Contract shall be that express right or remedy, and the Design-Builder shall have no additional right or remedy arising by common law, in equity, by statute or otherwise.
SECTION 12.2. EVENTS OF DEFAULT BY THE DESIGN-BUILDER.
(A) Events of Default Not Requiring Previous Notice or Cure Opportunity for Termination. Each of the following shall constitute an Event of Default by the Design-Builder upon which the Town, by notice to the Design-Builder, may terminate this Design-Build Contract without any requirement of having given notice previously or of providing any further cure opportunity:
(1) Failure to Achieve Substantial Completion. Except to the extent excused due to the occurrence of Uncontrollable Circumstances, the failure of the DesignBuilder to achieve Substantial Completion prior to the end of the Extension Period; (2) Failure to Achieve Final Completion. Except to the extent excused due to the occurrence of Uncontrollable Circumstances, the failure of the Design-Builder to achieve Final Completion by the date set forth in Section 8.4(A) (Requirements of Final Completion);
(3) Security for Performance. The failure of the Design-Builder to obtain and maintain in full force and effect in accordance with the requirements of this DesignBuild Contract any Security Instrument required by Article 16 (Security for Performance) as security for the performance of this Design-Build Contract; (4) Assignment or Transfer Without Consent. The Design-Builder assigns or transfers this Design-Build Contract or any right or interest therein without the Town’s prior written consent;
(5) Insolvency. The insolvency of the Design-Builder as determined under the Bankruptcy Law;
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(6) Voluntary Bankruptcy. The filing by the Design-Builder of a petition of voluntary bankruptcy under the Bankruptcy Law; the consenting of the Design-Builder to the filing of any bankruptcy or reorganization petition against the Design-Builder under the Bankruptcy Law; or the filing by the Design-Builder of a petition to reorganize the Design-Builder pursuant to the Bankruptcy Law; (7) Involuntary Bankruptcy. The issuance of an order of a court of competent jurisdiction appointing a receiver, liquidator, custodian or trustee of the Design-Builder or of a major part of the property of the Design-Builder or the filing against the Design-Builder of a petition to reorganize the Design-Builder pursuant to the Bankruptcy Law, which order shall not have been discharged or which filing shall not have been dismissed within 90 days after such issuance or filing; or (8) Abandonment. The Design-Builder suspends, ceases, stops or abandons the Design-Build Work or fails to continuously and diligently prosecute the DesignBuild Work, exclusive of work stoppages due to an Uncontrollable Circumstance. (B) Events of Default Requiring Previous Notice and Cure Opportunity for Termination. It shall be an Event of Default by the Design-Builder upon which the Town may terminate this Design-Build Contract, by notice to the Design-Builder and subject to the Design-Builder’s cure rights set forth in subsection (C) of this Section, if:
(1) Any representation or warranty in this Design-Build Contract made by the Design-Builder, or in any certificate, schedule, report, instrument, agreement or other document delivered by or on behalf of Design-Builder to the Town pursuant to this Design-Build Contract, is false, misleading or inaccurate in any material respect when made or omits material information when made;
(2) The Design-Builder fails, refuses or otherwise defaults in its duty to pay any amount required to be paid to the Town under this Design-Build Contract within 60 days following the due date for such payment;
(3) The Design-Builder fails to resume performance of the Design-Build Work which has been suspended or stopped within a reasonable time after receipt of notice from the Town to do so or (if applicable) after cessation of the event preventing performance;
(4) The Design-Builder fails to comply with any Applicable Law or fails to comply with the instructions of the Town consistent with this Design-Build Contract; or (5) The Design-Builder commits a material breach of this Design-Build Contract or otherwise fails to perform any other material obligation under this DesignBuild Contract (unless such breach or failure is excused by an Uncontrollable Circumstance as and to the extent provided herein).
(C) Notice and Cure Opportunity. The Design-Builder acknowledges that the Town has an immediate termination right upon the occurrence of any of the defaults listed in subsection (A) of this Section and that the Design-Builder has no further right of notice or cure in such circumstances of default. Conversely, no default listed in subsection (B) of this Section shall constitute an Event of Default giving the Town the right to terminate this Design-Build Contract for cause under this Section unless:
(1) The Town has given prior written notice to the Design-Builder stating that a specified default has occurred which gives the Town a right to terminate this 416
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Design-Build Contract for cause under this Section, and describing the default in reasonable detail; and
(2) The Design-Builder has not initiated within a reasonable time (in any event not more than 10 days from the initial default notice) and continued with due diligence to carry out to completion all actions reasonably necessary to correct the default and prevent its recurrence.
If the Design-Builder shall have initiated and continued with due diligence to carry out to completion all actions required under item (2), above, the default shall not constitute an Event of Default during such period of time (in any event not more than 60 days from the initial default notice) as the Design-Builder shall continue with due diligence to carry out to completion all such actions.
(D) Other Remedies Upon Design-Builder Event of Default. The right of termination provided under this Section upon an Event of Default by the Design-Builder is not exclusive. If this Design-Build Contract is terminated by the Town for an Event of Default by the Design-Builder, the Town shall have the right to pursue a cause of action for actual damages and to exercise all other remedies which are available to it under this Design-Build Contract, under the Security Instruments and under Applicable Law. The Design-Builder shall not be entitled to any compensation for services provided subsequent to receiving any notice of termination for an Event of Default under this Section. (E) Relationship to Liquidated Damages. Termination by the Town pursuant to this Section shall not relieve the Design-Builder or its Surety from liability for the liquidated damages provided for under this Design-Build Contract. The parties acknowledge and agree that such liquidated damages are intended solely to compensate the Town for costs and expenses associated with unexcused delay in the specific circumstances identified in the specific provisions providing for such liquidated damages and are not intended to liquidate all damages that the Town might suffer in the event of a termination due to a Design-Builder Event of Default under this Article 12. Accordingly, except with respect to damages relating solely to the specific circumstances of unexcused delay for which liquidated damages are provided under this Design-Build Contract, the payment of any such liquidated damages by the Design-Builder shall not serve to limit or otherwise affect the Town’s right to pursue and recover damages under subsection (D) of this Section.
SECTION 12.3. LIMITATION ON DESIGN-BUILDER LIABILITY.
(A) Design-Builder Liability Limit. Subject to subsection (B) of this Section, the Design-Builder’s aggregate liability under this Design-Build Contract with respect to damages payable to the Town arising out of a breach of contract claim or suit initiated by the Town shall not exceed an amount equal to: (1) the aggregate value of Early Work Package Prices for all Early Work Packages and the Preliminary Services Fee, during the period commencing on the Contract Date and ending on the GMP Amendment Date; and (2) the sum of (i) the Preliminary Services Fee, (ii) amounts paid by the Town for Early Work Packages and (iii) the Guaranteed Maximum Price commencing on the GMP Amendment Date and at all times thereafter.
(B) Liquidated Damages Sub-Limit. The aggregate liability of the DesignBuilder, with respect to any liquidated damages payable pursuant Section 8.3(C) (Delay Liquidated Damages), shall not exceed an amount equal to 10% of the Guaranteed Maximum Price.
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SECTION 12.4. APPLICABILITY AND INTERPRETATION OF THE LIMITATION ON LIABILITY.
The limitation on Design-Builder liability provided for in Section 12.3 (Limitation on Design-Builder Liability) applies solely to the liability of the Design-Builder for damages to the Town arising out of the performance or unexcused nonperformance of this Design-Build Contract as a consequence of a breach of contract claim initiated by the Town. The limitation on liability provided for in Section 12.3 (Limitation on Design-Builder Liability) shall not apply in the event the Design-Builder wrongfully or intentionally abandons the Project, and does not apply to any other liability, loss, damage, cost or expense that may be incurred by the DesignBuilder in connection with this Design-Build Contract, including any of the following liabilities, losses, damages, costs or expenses:
(1) Any loss, cost or expense sustained by the Design-Builder in the performance of the Design-Build Work or any other loss sustained by the DesignBuilder or any other party in connection with this Design-Build Contract or other agreement relating to the Project (e.g. Design-Build Period Costs necessary to complete the Design-Build Work that are in excess of the Guaranteed Maximum Price); (2) Any fines or penalties levied or imposed by any Governmental Body in connection with the performance or nonperformance of this Design-Build Contract; (3) Any indemnity payment (resulting from third party claims) made by the Design-Builder to the Town;
(4) Payment of any defense costs (including attorney’s fees, to, for, or on behalf of the Town with respect to any third party claim for which the Design-Builder is responsible under the indemnity provisions of this Design-Build Contract); (5) Any proceeds recovered from any Required Insurance under this DesignBuild Contract and the payment of any premium, deductible or self-insured retention with respect thereto; and
(6) Any claims, losses, penalties or settlement payments paid to the Town in connection with any tort claim by the Town against the Design-Builder based on negligence, willful misconduct, fraud, misrepresentation or false claims.
SECTION 12.5. EVENTS OF DEFAULT BY THE TOWN.
(A) Events of Default Permitting Termination. The failure, refusal or other default by the Town in its duty to pay any undisputed amount required to be paid to the Design-Builder under this Design-Build Contract within 60 days following the due date for such payment shall constitute an Event of Default by the Town upon which the DesignBuilder, by notice to the Town, may terminate this Design-Build Contract, subject to the terms and conditions of this Section.
(B) Notice and Cure Opportunity. No such default described in subsection (A) of this Section shall constitute an Event of Default giving the Design-Builder the right to terminate this Design-Build Contract for cause under this subsection (B) unless:
(1) The Design-Builder has given prior written notice to the Town stating that a specified default has occurred which gives the Design-Builder a right to terminate this Design-Build Contract for cause under this Section, and describing the default in reasonable detail; and
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(2) The Town has neither challenged in an appropriate forum the DesignBuilder’s conclusion that such default has occurred nor initiated within a reasonable time (in any event not more than 30 days from the initial default notice) and continued with due diligence to carry out to completion all actions reasonably necessary to correct the default and prevent its recurrence.
If the Town shall have initiated and continued with due diligence to carry out to completion all actions required under item (2), above, the default shall not constitute an Event of Default during such period of time (in any event not more than 60 days from the initial default notice) as the Town shall continue with due diligence to carry out to completion all such actions. (C) Other Town Breaches Constituting Uncontrollable Circumstances.
Except for the Town Events of Default described in subsection (A) of this Section, the failure of the Town to perform any other material obligation under this Design-Build Contract (unless such default is the due to Design-Builder Fault or excused by an Uncontrollable Circumstance as and to the extent provided herein), shall constitute an Uncontrollable Circumstance as and to the extent provided in Article 14 (Uncontrollable Circumstances), and the Design-Builder shall have no right to terminate this Design-Build Contract. (D) Effect of Termination. If this Design-Build Contract is terminated by the Design-Builder for cause as a result of an Event of Default by the Town, the Town shall pay the Design-Builder the same amount which would be payable under Section 12.6 (Town Convenience Termination Rights) if this Design-Build Contract were terminated at the election of the Town for convenience and without cause based on the date of termination. The Town shall have no further liability to the Design-Builder for any Event of Default or termination under this Section.
SECTION 12.6. TOWN CONVENIENCE TERMINATION RIGHTS.
(A) Convenience Termination Right and Payment. The Town shall have the right at any time following the Contract Date, exercisable in its discretion for any reason (including the failure to agree to a GMP Amendment) upon 30 days’ written notice to the Design-Builder, to terminate this Design-Build Contract. (B) Convenience Termination Payment for Preliminary Services. In the event of a convenience termination pursuant to this Section of the Preliminary Services, the DesignBuilder shall not be entitled to a convenience termination settlement payment, but shall be entitled to payment of that portion of the Preliminary Services Fee that has been earned by the terms hereof as of the Termination Date but not yet paid by the Town. No other compensation shall be payable by the Town on account of the Town’s convenience termination of the Preliminary Services.
(C) Convenience Termination Payment for Design-Build Period Work. In the event of a convenience termination pursuant to this Section following issuance of a Notice to Proceed with Design-Build Period Work (including Design-Build Work performed pursuant to an Early Work Package Amendment), the Design-Builder shall be entitled to a convenience termination settlement payment in an amount equal to the sum of:
(1) The difference between, (a) the value of all such Design-Build Period Work performed up to the Termination Date, and (b) all payments already made to the Design-Builder pursuant to this Design-Build Contract for Design-Build Period Work; and
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(2) Subject to subsection (E) of this Section, the reasonable costs incurred by the Design-Builder in connection with the termination, including all actual and reasonable demobilization costs and amounts due in settlement of terminated Subcontracts.
In the event of a termination for convenience under this Section, the Design-Builder acknowledges and agrees that it shall not be entitled to any compensation in excess of the value of the Design-Build Period Work performed plus its settlement and closeout costs. Under no circumstances shall the Design-Builder or any Subcontractor be entitled to anticipatory or unearned profits, unabsorbed overhead, opportunity costs, or consequential or other damages as a result of a termination for convenience under this Section. (D) Early Work Packages. If the parties have entered into any Early Work Package Amendment prior to any convenience termination pursuant to this Section, the Town shall have the right to:
(1) Terminate the Design-Builder’s right to perform any Design-Build Work authorized by any such Early Work Package Amendment and, at the Town’s option, require the Design-Builder to assign any Subcontracts to the Town; or (2) Require the Design-Builder to complete performance of such DesignBuild Work in accordance with the applicable Early Work Package Amendment.
If the Town elects to terminate such Design-Build Work pursuant to clause (1) of this subsection (D), (x) the Design-Builder shall be entitled to a termination settlement payment associated solely with the terminated Early Work Package Design-Build Work, as and to the extent provided in subsection (C) of this Section and (y) shall be relieved from the “call-back” obligations set forth in Section 10.2 (Warranty Work) for any uncompleted Early Work Package Design-Build Work. Nothing in this subsection (D) shall provide grounds for adjustment of any applicable Early Work Package Price or limit the Town’s rights to convenience terminate Design-Build Work authorized by an Early Work Package Amendment without terminating the Preliminary Services or the Design-Build Period Work.
(E) Settlement of Subcontracts. The obligation of the Town to pay amounts due in settlement of Subcontracts under subsection (C) of this Section shall be limited to the reasonable costs incurred by the Design-Builder in settling and closing out Subcontracts that the Town does not elect to have assigned to it pursuant to Section 12.7 (Obligations of the Design-Builder Upon Termination) and shall be subject to Cost Substantiation. Any convenience termination settlement payment under any Subcontract shall be calculated in the same manner as provided in subsection (C) of this Section with respect to the convenience termination settlement payment to the Design-Builder. In no event shall the Town be responsible for anticipatory or unearned profits, unabsorbed overhead, opportunity costs, or consequential or other damages payable to any Subcontractor as a result of the termination of any Subcontract.
(F) Payment of Amounts Due as a Result of Convenience Termination. The Design-Builder shall submit a termination for convenience claim, in the form and with the certification prescribed by the Town, promptly following the Termination Date but in any event not later than 60 days following the Termination Date. In the event of a failure of the DesignBuilder to submit a termination for convenience claim within the time allowed pursuant to this subsection (F), the Town may determine, on the basis of information available to the Town, the amount, if any, due to the Design-Builder by reason of the convenience termination and shall thereupon pay to the Design-Builder the amount so determined, if any. In no event shall the amount payable to the Design-Builder pursuant to this Section exceed the Guaranteed 420
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Maximum Price as reduced by the amount of payments otherwise made. In addition, any amount payable to the Design-Builder pursuant to this Section shall be reduced in the amount of (1) any claim the Town may have against the Design-Builder under this Design-Build Contract, and (2) the fair value, as determined by the Town, of property which is destroyed, lost, stolen or damaged so as to become undeliverable to the Town, excluding normal spoilage and except to the extent that the Town shall have otherwise expressly assumed the risk of loss with respect to such property hereunder. Any payment required to be made to the DesignBuilder pursuant to this Section shall be made within 120 days following the Termination Date, subject to compliance by the Design-Builder with its obligations under Section 12.7 (Obligations of the Design-Builder Upon Termination). Any payment required to be made by the Design-Builder to the Town pursuant to this Section shall be made within 120 days following the Termination Date. In the event of a dispute between the parties as to the amount of any payment required to be made pursuant to this Section, either party may elect to initiate dispute resolution procedures in accordance with Section 11.1 (Dispute Resolution Procedures).
(G) Completion or Continuance by the Town. Without limiting any other the Town right or remedy provided for under this Design-Build Contract, after the date of any termination under this Section, the Town may at any time (but without any obligation to do so) take any and all actions necessary or desirable to continue and complete the Contract Obligations so terminated, including entering into contracts with other contractors. (H) Convenience Termination Rights as Consideration. The right of the Town to terminate this Design-Build Contract for its convenience and in its sole discretion in accordance with this Section constitutes an essential part of the overall consideration for this Design-Build Contract, and, except with respect to the determination as to the amount due the Design-Builder pursuant to this Section, the Design-Builder hereby waives any right it may have under Applicable Law to assert that the Town owes the Design-Builder a duty of good faith dealing in the exercise of such right. The only compensation payable by the Town upon the exercise of its convenience termination option shall be any amounts specified herein in connection therewith.
SECTION 12.7. OBLIGATIONS OF THE DESIGN-BUILDER UPON
TERMINATION.
(A) Obligations of the Design-Builder Upon Termination. Upon any termination of the Design-Builder’s right to perform this Design-Build Contract, the DesignBuilder shall, as applicable and subject to any written directions provided by the Town:
(1) Stop any further Contract Obligations at the Project Sites or otherwise in connection with the Project;
(2) Cease incurring any further obligations or liabilities pertaining to the Contract Obligations;
(3) Promptly take all action as necessary to protect and preserve all materials, equipment, tools, facilities, and other property pertaining to the Project; (4) Vacate possession of the Project Sites and turn possession of the Project Sites over to the Town;
(5) Clean up and remove all debris and trash from the Project Sites; 421
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(6) Promptly remove from the Project Sites all equipment, tools, or material owned by the Design-Builder, or its Subcontractors, agents or representatives; (7) Promptly deliver a list of all suppliers, materials, machinery, equipment, property or other pending items being fabricated or on order for delivery to the Project but not yet delivered to the Project Sites or incorporated into the Design-Build Work, and comply with the written instructions of the Town with respect to such matters; (8) Deliver a complete copy of all books, notes, and records of the DesignBuilder pertaining to Design-Build Contract performance or planned construction or design activities;
(9) Promptly provide a list of (and make available to the Town for review or copying) all files pertaining to the Design-Build Work, including any and all access and security codes, and including instructions and demonstrations that show how to open and modify such codes;
(10) Promptly deliver complete copies of all Subcontracts to the Town, together with a detailed report on the status of such Subcontracts (status of orders and work performed and not performed or delivered under each Subcontract); a record of proposals made and balances due under each Subcontract; any cancellation penalties pertaining thereto; and any further information required by the Town, and furthermore assist the Town in contacting such Subcontractors to verify such information or answer any questions of the Town;
(11) Assign to the Town any Subcontract for the design and engineering of the Project that the Town elects in writing, in its discretion, to have assigned to it, with the Town assuming, and the Design-Builder being relieved of, all obligations under the Subcontract from the date of the assignment;
(12) Assign to the Town all other Subcontracts at the request of the Town (other than those expressly agreed upon by the parties in writing that will not be subject to assignment) that the Town elects in writing to have assigned to it and cancel or terminate all Subcontracts that the Town does not elect to have assigned to the Town, in accordance with the written instructions of the Town; provided, however, in the event of a termination pursuant to Section 12.6 (Town Convenience Termination Rights), the Design-Builder shall use good faith efforts to assign such Subcontracts but shall not be in breach of its obligation under this item (12) in the event it is unable to cause such assignment despite such good faith efforts;
(13) Promptly assign and transfer to the Town all right, title, and interest of Design-Builder to any items ordered for the Contract Obligations (but not yet delivered to the Project Sites or incorporated into the Project), as requested by the Town in its discretion; provided the Town (or Surety) assumes responsibility for payment thereof; (14) Promptly deliver and assign to the Town all warranties or guarantees by any vendor, supplier, manufacturer, or subcontractor pertaining to the Project; (15) Promptly notify the Town (in writing) of any pending or threatened Legal Proceedings against the Design-Builder; and
(16) Promptly take such other action and execute such documents as requested by the Town, and to assist in the transition of the Contract Obligations to the Surety or the Town, or as reasonably deemed necessary or appropriate by the Town, 422
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and avoid any action or conduct that would increase any expense or cost that would become an obligation or liability to the Town unless requested or directed by the Town Contract Representative in writing.
With respect to any of the foregoing obligations that cannot reasonably be completed by the Termination Date, the Design-Builder shall complete such obligations as promptly as is practicable, but in no event later than 30 days following the Termination Date. Compliance with these obligations shall be conditions precedent to the payment of any sums otherwise due the Design-Builder by reason of the termination. If any Subcontracts are assigned to the Town under this Section, the Town shall not be directly liable to any Subcontractors for amounts owed to such parties for Design-Build Work performed prior to termination, and the DesignBuilder shall remain liable to any such parties for such amounts.
SECTION 12.8. NO WAIVERS.
No action of the Town or the Design-Builder pursuant to this Design-Build Contract (including any investigation or payment), and no failure to act, shall constitute a waiver by either party of the other party’s compliance with any term or provision of this DesignBuild Contract. No course of dealing, failure or delay by the Town or the Design-Builder in exercising any right, power or remedy under this Design-Build Contract shall operate as a waiver thereof or otherwise prejudice such party’s rights, powers and remedies. No single or partial exercise of (or failure to exercise) any right, power or remedy of the Town or the DesignBuilder under this Design-Build Contract shall preclude any other or further exercise thereof or the exercise of any other right, power or remedy. No waiver of any breach of any provision of this Design-Build Contract will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
SECTION 12.9. WAIVER OF CONSEQUENTIAL AND PUNITIVE DAMAGES.
To the fullest extent permitted by law, and notwithstanding any other provision of the Contract Documents, in no event, whether arising out of contract, breach of warranty (express or implied), tort (including negligence), strict liability, or any other cause of or form of action whatsoever, shall either party be liable to the other for any consequential damages (including damages for loss of use, loss of profits or anticipated profits, loss of revenue, and loss of business opportunity) or punitive damages arising out of or in connection with the performance or non-performance of its obligations under this Design-Build Contract; provided, however, that, except as provided in the next sentence, the waiver of the foregoing damages under this Section is intended to apply only to disputes and claims as between the Town and the Design-Builder and, with respect to damages payable by the Design-Builder, the waiver of consequential or punitive damages applies only to the extent such damages are in excess of consequential or punitive damages covered or required to be covered by insurance. Nothing in this Section shall limit the indemnification obligations of the Design-Builder hereunder for any consequential or punitive damages payable to third parties resulting from any act or circumstance for which the Design-Builder is obligated to indemnify the Town or the Town Indemnitees hereunder. In addition, the Design-Builder acknowledges and agrees that the foregoing waiver shall not apply to, serve as a limitation or defense in respect of, or otherwise limit any right of recovery the Town may have respecting:
(1) Any damage, cost, loss or expense (including defense costs) to the extent (a) covered or required to be covered by the proceeds of Required Insurance, or (b) covered by the proceeds of insurance actually carried by or insuring Design-Builder under policies solely with respect to the Project, regardless of whether required to be carried pursuant to Appendix 10 (Insurance Requirements); and 423
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(2) The Design-Builder’s obligation to pay any liquidated damages specifically provided for under this Design-Build Contract. 424
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ARTICLE 13
INSURANCE
SECTION 13.1. INSURANCE.
(A) Required Insurance. At all times during the Term, the Design-Builder shall obtain, maintain and comply with the terms and conditions of the Required Insurance in accordance with Appendix 10 (Insurance Requirements) and shall pay all premiums with respect thereto as the same become due and payable. The Required Insurance shall be provided concurrently with the execution and delivery of this Design-Build Contract (or as otherwise specified in Appendix 10 (Insurance Requirements)) and remain in effect for the periods specified in Appendix 10 (Insurance Requirements). The Design-Builder’s liability insurance, including professional liability, shall not include any design-build or similar exclusions that would compromise coverages because of the design-build nature of the work to be performed pursuant to this Design-Build Contract. Appendix 10 (Insurance Requirements) also includes notice and reporting requirements for the Required Insurance, including the required workers’ compensation insurance.
(B) Insurers, Deductibles and the Town Rights. All insurance required by this Section shall be obtained and maintained from insurance companies, firms or entities that comply with the applicable requirements specified in Appendix 10 (Insurance Requirements).
The insurers shall be selected by the Design-Builder with the consent of the Town, which consent shall not be unreasonably withheld, and authorized to write such insurance in the State. All deductibles or self-insured retention amounts included in the Required Insurance coverage shall be subject to the reasonable approval of the Town. The Design-Builder shall be responsible for the payment of any deductible amounts. The Design-Builder shall also be responsible for all self-insured retentions contained in its insurance coverages, as well as any excluded losses if such losses are within the liability of the Design-Builder hereunder. All policies of insurance, except for professional liability and workers’ compensation, shall list the Town as an additional insured, and provide for:
(1) Payment of the losses to the Town, and to the Design-Builder as their respective interests may appear;
(2) At least 30 days’ prior written notice of the cancellation thereof to the Town (except for cancellation resulting from non-payment of premium); and (3) At least 10 days’ prior written notice of cancellation thereof to the Town in the event of cancellation resulting from non-payment of premium.
All policies of insurance, except for professional liability and workers’ compensation, provided by or on behalf of the Design-Builder shall be primary and non-contributory with respect to any insurance or self-insurance carried by the Town. The Town shall have the right to fully participate in all insurance claim settlement negotiations and to approve all final insurance settlements, which approval shall not be unreasonably withheld. (C) Certificates, Policies and Notice. The Required Insurance, including any renewals thereof, shall be evidenced by certificates of insurance as provided herein and in Appendix 10 (Insurance Requirements). No later than 30 days prior to the issuance date of each policy of Required Insurance, including any renewals thereof, the Design-Builder shall provide the Town with a draft certificate of insurance for review and approval, and shall deliver the final, approved certificate of insurance to the Town promptly following its issuance. All policies of Required Insurance shall be made available for review by the Town’s outside legal 425
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counsel, who will conduct the review solely for the purposes of providing the Town legal advice as to whether the Design-Builder’s policies meet Required Insurance requirements hereunder.
The Design-Builder shall certify to the Town that the policies being provided for review are a complete, true and correct compilation of all relevant policies evidencing insurance required under Appendix 10 (Insurance Requirements), recognizing that the Town and its designated representatives will rely on such certification. The Town’s outside legal counsel’s legal advice shall be limited to only confirming whether such policies of insurance comply with the insurance requirements in this Design-Build Contract, or generally describing the nature of any deficiency observed in such policies. In its submission, the Design-Builder may claim confidentiality with respect to its insurance policies to protect the same against disclosure under the Public Information Act, and in such event the Town will take reasonable action (up to seeking an attorney general opinion regarding exceptions that may apply) to seek to preserve the confidentiality of the information about the Design-Builder’s insurance policies in the possession of the Town’s outside legal counsel, pursuant to the attorney client privilege and any other applicable exception to disclosure under the Public Information Act that the Town in its sole discretion determines to assert. In addition, upon conducting such review, if the Town’s outside legal counsel determines that policies of Required Insurance contain deficiencies that cause such policies not to comply with the requirements of this Design-Build Contract, the Design-Builder shall remedy the defect and, without limiting any other the Town right or remedy provided for under this Design-Build Contract, in the event of a failure of compliance with the Required Insurance, the Design-Builder shall reimburse the Town for the cost and expense incurred by the Town in connection with the Town’s outside legal counsel attempting to resolve such policy deficiencies by modification or endorsement thereof to achieve compliance with the requirements hereunder.
(D) Subcontractors. Whenever a Subcontractor is utilized, the DesignBuilder shall either obtain and maintain or require the Subcontractor to obtain and maintain insurance in accordance with the applicable requirements of Appendix 10 (Insurance Requirements).
(E) Maintenance of Insurance Coverage. If the Design-Builder fails to pay any premium for Required Insurance, or if any insurer cancels any Required Insurance policy and the Design-Builder fails to obtain replacement coverage so that the Required Insurance is maintained on a continuous basis, then, at the Town’s election (but without any obligation to do so), the Town, following notice to the Design-Builder, may pay such premium or procure similar insurance coverage from another company or companies and upon such payment by the Town the amount thereof shall be immediately reimbursed to the Town by the DesignBuilder. The Design-Builder shall not perform Design-Build Work during any period when any policy of Required Insurance is not in effect. The Design-Builder shall comply with all Insurance Requirements and take all steps necessary to continuously insure the Project in accordance with the requirements of this Design-Build Contract. The failure of the DesignBuilder to obtain and maintain any Required Insurance shall not relieve the Design-Builder of its liability for any losses intended to be insured thereby. Should any failure to provide continuous insurance coverage occur, the Design-Builder shall indemnify, defend and hold harmless the Town Indemnitees in accordance with and to the extent provided in Article 15 (Indemnification) from and against all Loss-and-Expense arising out of such failure. The purchase of the Required Insurance to satisfy the Design-Builder’s obligations under this Section shall not be a satisfaction of any Design-Builder liability under this Design-Build Contract or in any way limit, modify or satisfy the Design-Builder’s indemnity obligations hereunder.
(F) Compliance with Insurer Requirements. The Design-Builder shall comply promptly with the requirements of all insurers providing the Required Insurance pertaining to the Project. The Design-Builder shall not knowingly do or permit anything to be 426
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done that results in the cancellation or the reduction of coverage under any policy of Required Insurance.
(G) Reductions for Insurance Proceeds. Whenever this Design-Build Contract obligates the Town to pay any amount to the Design-Builder in respect of an event or circumstance for which, or with respect to the consequences of which, an insurance claim may be made by the Design-Builder under the Required Insurance, the amount which the Town is obligated to pay will be reduced by the amount of insurance proceeds which the Design-Builder recovers or would have been entitled to recover if it had complied with the requirements of this Design-Build Contract or any policy of Required Insurance. 427
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ARTICLE 14
UNCONTROLLABLE CIRCUMSTANCES
SECTION 14.1. UNCONTROLLABLE CIRCUMSTANCES GENERALLY.
(A) Extent of Relief Available to the Design-Builder. If an Uncontrollable Circumstance occurs, the Design-Builder may be entitled to relief from its obligations, extensions of time and compensation, as and to the extent provided in this Article 14. Such relief shall be available irrespective of whether an obligation of this Design-Build Contract expressly states that it is excused by Uncontrollable Circumstances. (B) Mitigation Given Effect. Any relief to which the Design-Builder is entitled under this Article 14 on account of Uncontrollable Circumstances shall be adjusted to account for the effect of the mitigation measures which were or should have been taken by the DesignBuilder in compliance with its duty to mitigate under Section 17.9 (General Duty to Mitigate). (C) Applicable Law Compliance. Nothing in this Article 14 shall be interpreted as relieving the Design-Builder of its obligation, following any and all Uncontrollable Circumstances, to perform its obligations under this Design-Build Contract in compliance with Applicable Law.
(D) Contract Obligations Not Affected; Resumption of Performance. The occurrence of an Uncontrollable Circumstance shall not excuse the Design-Builder from performing any obligation hereunder not directly affected by the occurrence of the Uncontrollable Circumstance. Upon the occurrence of an Uncontrollable Circumstance, the Design-Builder shall promptly use all reasonable efforts to eliminate the cause thereof and resume performance of the affected Contract Obligations.
SECTION 14.2. UNCONTROLLABLE CIRCUMSTANCE CLAIM PROCEDURES. (A) Notice and Written Report. In order to assert an entitlement based on the occurrence of an Uncontrollable Circumstance, the Design-Builder shall give notice of the occurrence of the Uncontrollable Circumstance to the Town as soon as practicable, and in any event within 14 days of the date the Design-Builder has knowledge that the Uncontrollable Circumstance has caused or is likely to cause an entitlement under this Design-Build Contract. The Design-Builder’s notice shall include a written report:
(1) Describing the Uncontrollable Circumstance and the cause thereof, to the extent known;
(2) Stating the date on which the Uncontrollable Circumstance began and its estimated duration, to the extent known;
(3) Summarizing the consequences of the Uncontrollable Circumstance and the expected impact on the performance of the Design-Builder’s obligations under this Design-Build Contract; and
(4) Indicating the nature and scope of the Design-Builder’s potential entitlement to relief.
(B) Updates. The Design-Builder shall provide the Town with periodic updates, together with further details and supporting documentation, as it receives or develops additional information pertaining to the Uncontrollable Circumstance and the matters 428
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described in subsection (A) of this Section. In particular, the Design-Builder shall notify the Town as soon as the Uncontrollable Circumstance has ceased and of the time when performance of its affected obligations can be resumed. (C) Submittal of Relief Request. The Design-Builder shall submit to the Town a further notice making its request for specific relief, the basis therefor and the event giving rise to the requested relief (the “Relief Request Notice”), promptly after becoming aware of such occurrence, but not more than 30 days after the Town’s receipt of the notice required under subsection (A) of this Section; provided that, if the specific relief cannot reasonably be ascertained within such period, the Design-Builder shall furnish the Relief Request Notice within such longer period as is reasonably necessary to detail the event and ascertain such relief; however, in any event, such Relief Request Notice shall be submitted to the Town not more than 60 days after the Town’s receipt of the notice required under subsection (A) of this Section. Each Relief Request Notice shall include all information required in this Article 14 with respect to the specific relief being requested.
(D) Delay in Notification. The Design-Builder acknowledges that any delay by the Design-Builder in submitting to the Town any Uncontrollable Circumstance notice or any information required under this Section, beyond the applicable time period required under this Section may adversely affect the Town, and agrees that the relief to be provided in respect of any Uncontrollable Circumstance shall be reduced or limited to the extent of any such adverse effect, as reasonably determined by the Town. The Design-Builder shall be deemed to have become aware of the occurrence of an Uncontrollable Circumstance if such occurrence could reasonably have been known, identified, discovered or observed by the Design-Builder through the employment of procedures consistent with Good Engineering and Construction Practice. Without limiting any of the foregoing, if the Design-Builder fails to submit a Relief Request Notice within 60 days after the Town’s receipt of the notice required under subsection (A) of this Section or to notify the Town of the occurrence of an Uncontrollable Circumstance within 60 days following the occurrence, then the Design-Builder shall be deemed to have irrevocably and forever waived and released any and all claim or right with respect to the subject Uncontrollable Circumstance.
(E) Multiple and Overlapping Claims. The Design-Builder may make multiple but not duplicative claims with respect to an Uncontrollable Circumstance. (F) Burden of Proof and Mitigation. The Design-Builder shall bear the burden of proof in establishing the occurrence of an Uncontrollable Circumstance and the entitlement to relief based thereon, and shall demonstrate that the Design-Builder complied with its mitigation obligations under Section 17.9 (General Duty to Mitigate). (G) Town Response. The Town may, but shall have no obligation to, respond to the Design-Builder’s initial notice concerning the occurrence of an Uncontrollable Circumstance under subsection (A) of this Section. Within 15 days after receipt of a Relief Request Notice pursuant to subsection (C) of this Section, the Town shall issue a written determination as to the extent, if any, to which it concurs with the Design-Builder’s request and the reasons therefor.
(H) Agreement or Dispute. The agreement of the parties as to the specific relief to be given the Design-Builder on account of an Uncontrollable Circumstance shall be evidenced by a Change Order, a Contract Amendment or other written agreement between the parties. Either party may refer any dispute for resolution in accordance with Section 11.1 (Dispute Resolution Procedures).
(I) Certifications. Each submittal made under this Section by the DesignBuilder shall be accompanied by a certification of the Design-Builder Contract Representative 429
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that the submittal is made in good faith; that the supporting data are complete and accurate at the time of the submittal to the best knowledge of the Design-Builder; and that the requested relief accurately reflects the relief to which the Design-Builder reasonably believes it is entitled hereunder. The Design-Builder shall have no entitlement to relief for uncertified claims.
SECTION 14.3. UNCONTROLLABLE CIRCUMSTANCES RELIEF.
If and to the extent that an Uncontrollable Circumstance interferes with, delays or increases the cost to the Design-Builder performing the Design-Build Work in accordance herewith, the Design-Builder shall, subject to Section 14.4 (Schedule Relief and Related Price Relief), be entitled to:
(1) Relief from its performance obligations;
(2) An adjustment to the Scheduled Substantial Completion Date; (3) An adjustment to the Contract Compensation for such costs (except as otherwise expressly provided herein); or
(4) A Base Guaranteed Maximum Price Adjustment (except as and to the extent provided in this Section, Section 14.2 (Uncontrollable Circumstance Claim Procedures) and Article 15 (Indemnification));
or any combination thereof, each of which properly reflects the interference with performance, the time lost as a result thereof, or the amount of the increased cost, in each case only to the minimum extent necessary to compensate the Design-Builder or provide performance or schedule relief and only to the extent directly attributable to the Uncontrollable Circumstance.
Any cost reduction achieved or which should have been achieved taking into consideration the Design-Builder’s obligations under this Design-Build Contract (including the mitigation measures to be undertaken by the Design-Builder pursuant to Section 17.9 (General Duty to Mitigate)) shall be reflected in a reduction of the amount of the additional Contract Compensation or Base Guaranteed Maximum Price Adjustment as appropriate to reflect such mitigation measures. The Design-Builder shall not be entitled to any price relief on account of any costs incurred as the result of Design-Builder Fault or an act, event or circumstance that the Design-Builder is obligated to insure against under Article 13 (Insurance), irrespective of any limits of coverage and of any deductible applicable under any policy of insurance maintained or required to be maintained thereunder.
SECTION 14.4. SCHEDULE RELIEF AND RELATED PRICE RELIEF. (A) Conditions to Schedule Relief.
(1) Float in the Design-Build Period Work Schedule. The parties acknowledge and agree that “float” in the Design-Build Period Work Schedule:
(a) Means the amount of time that any given activity or logically connected sequence of activities shown on the Design-Build Period Work Schedule may be delayed before it delays the occurrence of a scheduled completion milestone; and
(b) Is an expiring resource available to the Project for the benefit of both parties, available to each of them as needed to absorb delays in achieving the scheduled completion milestones, whether such delays are caused by Uncontrollable Circumstances or otherwise.
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(2) Required Demonstration for Schedule Relief. Without limiting any other requirement of this Article 14, the Design-Builder shall not be entitled to any adjustment to the Scheduled Substantial Completion Date, the number of days allowed for the achievement of Final Completion or any other schedule adjustment under this Design-Build Contract, unless the Design-Builder demonstrates:
(a) That an Uncontrollable Circumstance has occurred and, subject to the time impact analysis requirements of Appendix 5 (General Design-Build Work Requirements), that the Uncontrollable Circumstance impacts one or more critical path activities in the Design-Build Period Work Schedule, as updated, maintained and revised by the Design-Builder in accordance with the Contract Standards, such that the Uncontrollable Circumstance will consume all available float and extend the time required to achieve the scheduled milestone from which relief is being sought;
(b) The Design-Builder, in view of all circumstances, exercised reasonable efforts to avoid the delay; and
(c) The delay was not caused by the Design-Builder or any other Design-Builder Person.
(B) Compensable Uncontrollable Circumstance Delay. The Design-Builder shall be entitled to schedule relief but shall not be entitled to price relief for schedule delays due to (i) unusually severe and abnormal climatic conditions, (ii) the existence of Differing Site Conditions, or (iii) the existence of a Regulated Site Condition. Price relief for schedule delays caused by other Uncontrollable Circumstances (including delays in the receipt of Town Managed Governmental Approvals or Town Managed Non-Governmental Approvals, a Change in Law, Town Fault or the performance or non-performance of Separate Contractors, in each case, as and to the extent such events or circumstances constitute Uncontrollable Circumstances pursuant to this Article 14) shall be limited to a reasonable and equitable Base Guaranteed Maximum Price Adjustment, which shall not exceed the sum of (i) a reasonable daily value for the Design-Builder’s General Conditions Costs based upon the Design-Builder’s General Conditions Fee multiplied by the number of days of compensable Uncontrollable Circumstance delay, and (ii) any additional Design-Build Period Costs attributable to such Uncontrollable Circumstance delay taking into consideration the Design-Builder’s obligations under this Design-Build Contract (including the mitigation measures to be undertaken by the Design-Builder pursuant to Section 17.9 (General Duty to Mitigate)) as substantiated in accordance with Section 9.8 (Cost Substantiation).
(C) Concurrent Delay. The Design-Builder’s entitlement to price relief for Uncontrollable Circumstance delays under subsection (B) of this Section shall be limited to the extent of any concurrent delay by the Design-Builder or to the extent performance was, or would have been, suspended, delayed, or interrupted by another cause for which the DesignBuilder is responsible.
SECTION 14.5. UNUSUALLY SEVERE AND ABNORMAL CLIMATIC EVENTS.
If the Design-Builder intends to seek Uncontrollable Circumstance schedule relief on the basis of unusually severe and abnormal climatic events, the Design-Builder shall, in addition to fulfilling all other requirements of this Article 14, demonstrate that the actual weather encountered was unusually severe and abnormal compared with the five-year average weather statistics compiled by the United States National Oceanic and Atmospheric Administration for the time of year and locality of the Project Sites. 431
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SECTION 14.6. RELEASE.
The Design-Builder’s acceptance of any performance, price or schedule adjustment under this Article 14 shall be construed as a release of the Town by the DesignBuilder (and all persons claiming by, through or under the Design-Builder) from any and all losses or expenses resulting from, or otherwise attributable to, the event giving rise to the adjustment claimed. Notwithstanding the foregoing, the parties may agree that any schedule, performance or price relief does not constitute the entire relief to be afforded due to such event but only to the extent set forth in a written agreement of the parties.
SECTION 14.7. UNIT PRICING.
[Note: To be developed if parties negotiate per unit charge for treatment/disposal of contaminated material that would constitute an Uncontrollable Circumstance as part of the GMP Amendment.]
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ARTICLE 15
INDEMNIFICATION
SECTION 15.1. DESIGN-BUILDER’S OBLIGATION TO INDEMNIFY.
The Design-Builder shall indemnify, defend and hold harmless the Town, and their respective elected officials, trustees, members, appointed officers, employees, representatives, agents and contractors, including the Owner Representative (each a “the Town Indemnitee”), from and against (and pay the full amount of) any and all Loss-and-Expense that any the Town Indemnitee may sustain in connection with any claim made by one or more third parties (including claims for loss of or physical damage to property or assets), or any claim for, or in respect of, the death, personal injury, disease or illness of any person, including any Town Indemnitee, to the extent arising by reason of (or alleged to result from or in connection with) any:
(1) Design-Builder Fault;
(2) Non-compliance by the Design-Builder or any Design-Builder Person with any of the provisions of this Design-Build Contract or any Subcontract or any document, instrument or agreement delivered to the Town as required under this Design-Build Contract;
(3) Activities on the Project Sites, as and to the extent provided in Section
4.4(C) (Access to the Project Sites);
(4) Non-compliance with Applicable Law, as provided in Section 4.6(C) (Fines, Penalties and Remediation);
(5) Release of Regulated Substances by the Design-Builder or any DesignBuilder Person, as provided in Section 6.4(A) (Design-Builder Responsibilities); (6) Labor disputes, as provided in Section 7.2(B) (Labor Relations); (7) Subcontractor claims, as provided in Section 7.3(I) (Subcontractor Claims);
(8) Design-Builder Employee claims, as provided in subsection 7.3(K) (Subcontracting with Small and Minority Businesses, Women’s Business Enterprises and Labor Surplus Area Firms);
(9) Intellectual Property claims, as provided in Section 17.7(A) (Protection from Infringement);
(10) Failure by the Design-Builder to advise the Town of any potential infringement or unauthorized use resulting from a the Town-directed Change Order, as provided in Section 17.7(C) (Exceptions to Infringement Protection); (11) Any claims of harassment arising from the conduct of the Design-Builder or any Design-Builder Person;
(12) Breach by the Design-Builder or any Design-Builder Person of, or noncompliance by the Design-Builder or any Design-Builder Person with, any Governmental Approval or Applicable Law, or the failure of the Design-Builder or any 433
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Design-Builder Person to obtain all necessary Governmental Approvals which it is required to obtain in accordance with this Design-Build Contract; or (13) Any other act, event or circumstance as to which the Design-Builder is obligated to provide an indemnity hereunder.
The Design-Builder’s indemnity obligations under this Section shall not be limited by any coverage exclusions or other provisions in any policy of Required Insurance or other insurance maintained by the Design-Builder which is intended to respond to such events.
Notwithstanding the foregoing, the Town Indemnitees’ right to indemnification pursuant to this Section shall be reduced by all insurance, settlement proceeds or third party indemnification proceeds actually received by the Town Indemnitees. This Section may be relied upon by the Town Indemnitees and may be enforced directly by any of them against the Design-Builder in the same manner and for the same purpose as if pursuant to a contractual indemnity directly between them and the Design-Builder.
SECTION 15.2. INDEMNIFICATION PROCEDURES.
(A) Notice. If a Town Indemnitee receives any notice, demand, letter or other document concerning any claim for which it appears that the Town Indemnitee is, or may become entitled to, indemnification or compensation under this Design-Build Contract in respect of the entire claim, the Town Indemnitee shall give notice in writing to the DesignBuilder as soon as reasonably practicable. (B) Consolidation of Claims. If a notice of claim is given pursuant to subsection (A) of this Section by more than one the Town Indemnitee relating to the same facts or circumstances, the Design-Builder may, in its discretion, require the consolidated administration and coordination of all such noticed claims by common counsel. (C) Design-Builder Right to Dispute Claim. If notice is given as provided in subsection (A) of this Section, the Design-Builder shall be entitled to dispute the claim in the name of the Town Indemnitee at the Design-Builder’s own expense and take conduct of any defense, dispute, compromise, or appeal of the claim and of any incidental negotiations. The Town Indemnitee will give the Design-Builder all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim. (D) Rights and Duties of the Parties. With respect to any claim conducted by the Design-Builder pursuant to subsection (C) of this Section:
(1) The Design-Builder shall keep the Town Indemnitee fully informed and consult with it about material elements of the conduct of such defense; (2) The Design-Builder shall demonstrate to the Town Indemnitee, at the reasonable request of the Town Indemnitee, that the Design-Builder has sufficient means to pay all costs and expenses that it may incur by reason of conducting such defense; and
(3) The Design-Builder shall have full control of such defense and proceedings, including any compromise or settlement thereof; provided, however, that any such compromise or settlement involving non-monetary obligations of the Town, or otherwise having a direct effect upon its continuing operations, shall (1) contain a full release of the Town and (2) be subject to the consent of the Town, which consent shall not be unreasonably withheld, conditioned or delayed. If requested by the DesignBuilder, the Town (with the approval of the Board of Trustees, given in its discretion) shall, at the sole cost and expense of the Design-Builder, cooperate with the Design434 Town of Paradise Sewer Project Design-Build Contract
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Builder and its counsel in contesting any claim which the Design-Builder elects to contest.
(E) The Town Indemnitee Rights to Conduct Defense. A Town Indemnitee may take conduct of any defense, dispute, compromise or appeal of any claim subject to the Design-Builder’s indemnification obligations hereunder, including any incidental negotiations, if
(1) The Design-Builder fails to notify the Town Indemnitee of its intention to take conduct of the relevant claim within 14 days of the notice from the Town Indemnitee under subsection (A) of this Section or notifies the Town Indemnitee that it does not intend to take conduct of the claim; or
(2) The Town Indemnitee reasonably determines that a conflict exists between it and the Design-Builder which prevents or potentially prevents the DesignBuilder from presenting a full and effective defense; or (3) The Design-Builder fails to comply in any material respect with subsection (D) of this Section in a timely manner following reasonable notice from the Town.
(F) Transfer of Conduct of Claim to the Town Indemnitee. A the Town Indemnitee may at any time, give notice to the Design-Builder that it is retaining or taking over, as the case may be, the conduct of any defense, dispute, compromise, settlement or appeal of any claim, or of any incidental negotiations, to which subsection (E) of this Section applies. On receipt of such notice the Design-Builder will promptly take all steps necessary to transfer the conduct of such claim to the Town Indemnitee, and will provide to the Town Indemnitee all reasonable cooperation, access and assistance for the purposes of considering and resisting such claim.
(G) Design-Builder Responsibility for Costs. If the Town Indemnitee is entitled and elects to conduct its own defense pursuant to subsection (E) of this Section, all reasonable Fees and Costs incurred by the Town Indemnitee in investigating, defending and conducting the claim for which it is entitled to indemnification hereunder shall constitute an indemnified loss subject to the Design-Builder’s indemnification obligations hereunder. 435
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ARTICLE 16
SECURITY FOR PERFORMANCE
SECTION 16.1. BONDS.
(A) Performance and Payment Bonds. Performance Bonds and Payment Bonds for the Design-Build Work shall be provided as follows:
(1) Early Work Packages Bonds. If the Town authorizes an Early Work Package, then the Design-Builder shall provide to the Town, on or before the Early Work Package Amendment Date, a Performance Bond and a Payment Bond covering the Design-Builder’s faithful performance of such Early Work Package Amendment and the payment of its obligations arising thereunder. The penal sum of each such bond shall be in an amount equal to the Early Work Package Price applicable to the Early Work Package. The Payment Bond shall be in the form required by California Civil Code Section 3247 as attached as Transaction Form B issued by a Surety meeting the requirements set forth in subsection (D) of this Section, and the Performance Bond shall be in the form attached as Transaction Form C issued by a Surety meeting the requirements set forth in subsection (D) of this Section. If the Town authorizes additional Early Work Packages, then the Design-Builder shall, on or before each subsequent Early Work Package Amendment Date, provide to the Town, for each subsequent Early Work Package, an amendment to the above-referenced Performance Bond and Payment Bond, executed by both the Design-Builder and the Surety, that:
(a) increases the penal sum of each bond by an amount equal to the Early Work Package Price of such Early Work Package; and (b) affirmatively states that the obligations under such bonds encompass the Design-Builder’s performance and payment obligations under each Early Work Package Amendment. (2) Amendment of Early Work Package Bonds on GMP Amendment Date. If Performance and Payment Bonds have been provided pursuant to item (1) above, then the Design-Builder shall, on or before the GMP Amendment Date, provide to the Town an amendment to the Performance Bond and the Payment Bond, executed by both Design-Builder and the Surety, that: (a) increases the penal sum of each bond to an amount equal to the Base Guaranteed Maximum Price; and (b) affirmatively states that such bonds cover faithful performance of this Design-Build Contract and payment of obligations arising thereunder.
(3) New Design-Build Work Performance and Payment Bonds on GMP Amendment Date. If the Performance Bond and the Payment Bond have not been provided pursuant to item (1) above, then the Design-Builder shall, on or before the GMP Amendment Date, provide to the Town a Performance Bond and a Payment Bond that are in the penal sum of an amount equal to the Base Guaranteed Maximum Price and cover faithful performance of this Design-Build Contract and payment of obligations arising hereunder. The forms of such bonds are set forth in Transaction Forms B and C and shall be issued by a Surety meeting the requirements set forth in subsection (D) of this Section.
(4) Example Penal Sum Determination. The following example is intended to illustrate the operation of the above, on the assumption that there are two Early Work Package Amendments before the GMP Amendment:
(a) The parties enter into an Early Work Package Amendment for Scope X with a lump sum price of $1 million. The Performance Bond and the 436
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Payment Bond will each have a penal sum of $1 million, and such bonds will cover the performance and payment obligations of the Design-Builder for Scope X.
(b) The parties enter into another Early Work Package Amendment for Scope Y with a lump sum price of $1.5 million. The Performance Bond and the Payment Bond will be amended to have a penal sum of $2.5 million, and such bonds will cover the performance and payment obligations of DesignBuilder for Scope X and Y. (c) The parties enter into the GMP Amendment, with a Base Guaranteed Maximum Price of $10 million, inclusive of the lump sum pricing for Scopes X and Y. The Performance Bond and the Payment Bond will be amended to have a penal sum of $10 million, and such bonds will cover all performance and payment obligations of the Design-Builder under this Design-Build Contract, inclusive of Scope X, Y and all other Design-Build Work under this Design-Build Contract.
(5) Base Guaranteed Maximum Price Adjustments. The amount of the Performance Bond and the Payment Bond shall be increased by the Design-Builder to reflect any Base Guaranteed Maximum Price Adjustments at the time such adjustment is implemented by the parties and as a condition to its entitlement to the adjustment. (6) Term of Bonds. The Payment Bond shall be security for the payment of all persons supplying labor and material in the prosecution of the Design-Build Work and shall remain open until Final Completion. The Performance Bond shall secure the performance of the Design-Build Work and shall remain open until Final Completion. (B) Bond Forms. Each bond given or tendered to the Town pursuant to this Design-Build Contract must be on the Town forms (Transaction Forms B and C), with no changes made by the Design-Builder or the Surety, and must be dated, executed, and accompanied by a power of attorney stating that the attorney in fact executing the bond has requisite authority to execute such bond. The bonds must be dated and must be no more than 30 days old when delivered to the Town.
(C) Delivery of Bonds. The Design-Builder shall deliver required bonds to the Town within the time limits specified in this Section. (D) Surety Requirements. The bonds required to be provided pursuant to this Section shall be issued by a Surety:
(1) Approved by the Town having a rating of A- or better in the latest revision of the A.M. Best Company’s Insurance Report;
(2) Listed in the United States Treasury Department’s Circular 570, “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsurance Companies”;
(3) Holding a certificate of authority to transact surety business in the State; and
(4) In compliance with the requirements of State law.
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If a bond is given or tendered to the Town pursuant to this Design-Build Contract in an amount greater than 10 percent of Surety’s capital and surplus, the Surety shall provide certification that the Surety has reinsured that portion of the risk that exceeds 10 percent of the Surety’s capital and surplus. The reinsurance must be with one or more reinsurers who are duly authorized, accredited, or trusted to do business in the State. The amount reinsured by any reinsurer may not exceed 10 percent of the reinsurer’s capital and surplus. The amount of allowed capital and surplus must be based on information received from the California Board of Insurance.
(E) Monitoring of Sureties. The Design-Builder shall be responsible throughout the Term for monitoring the financial condition of any Surety issuing bonds under this Design-Build Contract and for making inquiries no less often than annually to confirm that each such Surety maintains at least the minimum rating level specified in this Section. In the event the rating of any issuing Surety falls below such minimum level, or if any surety company is declared bankrupt or becomes insolvent or has the rights to do business in the State terminated, the Design-Builder shall promptly notify the Town of such event and shall promptly take steps to cause continued compliance with this Section by furnishing or arranging for the furnishing of a substitute or additional bond of a surety company whose rating and other qualifications satisfy all above requirements, unless the Town agrees to accept the surety company that no longer satisfies the minimum rating level specified above, or agrees to an alternative method of assurance. Upon such notice by the Design-Builder of such an event, the Town shall not unreasonably withhold its approval of such assurance. (F) Completion of Work. Without limiting any other right or remedy provided for under the Performance Bond, if this Design-Build Contract is terminated by the Town for an Event of Default and the Surety fails to pursue completion of the Contract Obligations with reasonable speed, the Town may arrange for completion of the Contract Obligations and deduct the cost thereof from any amount otherwise due to the Design-Builder under this Design-Build Contract, including the cost of additional the Town administration and consultant services made necessary by such default or neglect. In such event, no further payment shall then be made by the Town until all costs of completing the Contract Obligations shall have been paid.
SECTION 16.2. COSTS OF PROVIDING SECURITY INSTRUMENTS.
The cost and expense of obtaining and maintaining the Security Instruments required under this Article 16 as security for the performance of the Design-Builder’s obligations hereunder shall be borne by the Design-Builder. Premiums for the Performance Bonds and the Payment Bonds shall be Design-Build Period Costs that may be requisitioned by the Design-Builder in accordance with the provisions of Appendix 8 (Design-Build Price). 438
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ARTICLE 17
MISCELLANEOUS PROVISIONS
SECTION 17.1. OWNERSHIP OF THE PROJECT.
The Project shall be owned by the Town at all times. The Design-Builder shall perform the Contract Obligations provided for herein as an independent contractor and shall not have any legal, equitable, tax beneficial or other ownership or leasehold interest in the Project. The Design-Builder shall not use the Project for any purpose other than the purposes contemplated by this Design-Build Contract or to serve or benefit any person other than the Town.
SECTION 17.2. RELATIONSHIP OF THE PARTIES.
The Design-Builder is an independent contractor of the Town and the relationship between the parties shall be limited to performance of this Design-Build Contract in accordance with its terms. Neither party shall have any responsibility with respect to the services to be provided or contractual benefits assumed by the other party. Nothing in this Design-Build Contract shall be deemed to constitute either party a partner, agent or legal representative of the other party. No liability or benefits, such as workers compensation, pension rights or liabilities, or other provisions or liabilities arising out of or related to a contract for hire or employer/employee relationship shall arise or accrue to any party’s agent or employee as a result of this Design-Build Contract or the performance thereof.
SECTION 17.3. AFFILIATE TRANSACTIONS.
If any costs to be reimbursed by the Town to the Design-Builder under this Design-Build Contract arise from a transaction between the Design-Builder and any Affiliate of the Design-Builder, the Design-Builder shall notify the Town of the specific nature of the contemplated transaction, including the identity of the Affiliate, the nature of the work to be performed by the Affiliate and the anticipated cost to be incurred, before any such transaction is consummated or cost incurred. The Design-Builder shall not enter into any such transaction, nor incur any such cost, absent the written approval of the Town in its sole discretion.
SECTION 17.4. CONTRACT ADMINISTRATION.
(A) Administrative Communications. The parties recognize that a variety of contract administrative matters will routinely arise throughout the performance of this DesignBuild Contract. These matters will by their nature involve requests, notices, questions, assertions, responses, objections, reports, claims, and other communications made personally, in meetings, by phone, by mail and by electronic and computer communications. The purpose of this Section is to set forth a process by which the resolution of the matters at issue in such communications, once resolution is reached, can be formally reflected in the common records of the parties so as to permit the orderly and effective administration of this Design-Build Contract.
(B) Contract Administration Memoranda. The principal formal tool for the administration of routine matters arising under this Design-Build Contract between the parties that do not require a Contract Amendment shall be a “Contract Administration Memorandum.” A Contract Administration Memorandum shall be prepared, once all preliminary communications have been concluded, to evidence the resolution reached by the Town and the 439
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Design-Builder as to matters of interpretation and application arising during the course of the performance of their obligations hereunder. Such matters may include, for example:
(1) Issues as to the meaning, interpretation or application of this DesignBuild Contract in particular circumstances or conditions; (2) Calculations required to be made;
(3) Notices, waivers, releases, satisfactions, confirmations, further assurances, consents and approvals given hereunder; and (4) Other similar routine contract administration matters. (C) Procedure. Either party may request the execution of a Contract Administration Memorandum. When resolution of the matter is reached, a Contract Administration Memorandum shall be prepared by or at the direction of the Town reflecting the resolution. Contract Administration Memoranda shall be serially numbered, dated, signed by the Design-Builder Contract Representative and the Town Contract Representative, and, at the request of the Town, co-signed by a Senior Supervisor for the Design-Builder. The Town and the Design-Builder each shall maintain a parallel, identical file of all Contract Administration Memoranda, separate and distinct from the Contract Amendments and all other documents relating to the administration and performance of this Design-Build Contract. (D) Effect. Executed Contract Administration Memoranda shall serve to guide the ongoing interpretation and application of the terms and conditions of this DesignBuild Contract. Any material change, alteration, revision or modification of this Design-Build Contract, however, shall be effectuated only through a formal Contract Amendment in accordance with Section 17.5 (Contract Amendments).
SECTION 17.5. CONTRACT AMENDMENTS.
(A) Amendments Generally. Notwithstanding the provisions of Section 17.4 (Contract Administration) but without limiting any approval authority delegated to the Town Contract Representative pursuant to Section 17.6(B) (Town Contract Representative), no material change, alteration, revision or modification of the terms and conditions of this DesignBuild Contract shall be made except through a written amendment to this Design-Build Contract (a “Contract Amendment”), duly authorized, approved or ratified by the Town Council and duly authorized by the Design-Builder.
(B) Procedure. Contract Amendments shall be serially numbered, dated and signed by a Senior Supervisor for the Design-Builder and by the Town Contract Representative or an authorized signatory of the Town for the Town, as determined in accordance with Section
17.6(B) (Town Contract Representative). The Town and the Design-Builder each shall maintain a parallel, identical file of all Contract Amendments, separate and distinct from the Contract Administration Memoranda and all other documents relating to the administration and performance of this Design-Build Contract.
SECTION 17.6. CONTRACT REPRESENTATIVES.
(A) Design-Builder Contract Representative and Senior Supervisors. The Design-Builder shall appoint and inform the Town in writing from time to time of the identity of (1) the individual with the responsibility and power from time to time to administer this DesignBuild Contract and to bind the Design-Builder with respect to any Contract Administration Memorandum, Change Order and Contract Amendment (which may be the same or different 440
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individual with respect to the Preliminary Services and the Design-Build Period Work) (the “Design-Builder Contract Representative”), and (2) the corporate officials of the Design-Builder with senior supervisory responsibility for the Project and the performance of this Design-Build Contract (the “Senior Supervisors”). The Design-Builder shall promptly notify the Town in writing of the appointment of any successor Senior Supervisors. The Senior Supervisors shall cooperate with the Town in any reviews of the performance of the Project Manager and the Design-Builder Contract Representative which the Town may undertake from time to time, and shall give full consideration to any issues raised by the Town in conducting such performance reviews.
(B) Town Contract Representative. The Town shall appoint an individual or individuals to act as the “Town Contract Representative” for this Design-Build Contract. Such appointment shall be in writing and include a specific description of the extent of the Town Contract Representative’s power to administer this Design-Build Contract, including specific dollar limitations of his or her authority. The Design-Builder shall be entitled to a copy of any such written appointment. The Design-Builder understands and agrees that any delegation to the Town Contract Representative may provide only limited authority with respect to the implementation of this Design-Build Contract, which may or may not include the authority to bind the Town with respect to any Change Order, Work Change Directive or Contract Amendment. Within such limitations, the Design-Builder shall be entitled to rely on the written directions of any the Town Contract Representative. The Town Contract Representative shall have the right at any time to issue the Design-Builder a written request for information relating to this Design-Build Contract. Any written request designated as a “priority request” shall be responded to by the Design-Builder within three Business Days. (C) Town Approvals and Consents. When this Design-Build Contract requires any approval or consent by the Town to a Design-Builder submission, request or report, the approval or consent shall, within the limits of the authority of subsection (B) of this Section, be given by the Town Contract Representative in writing and such writing shall be conclusive evidence of such approval or consent, subject only to compliance by the Town with the Applicable Law that generally governs its affairs. Unless expressly stated otherwise in this Design-Build Contract, and except for requests, reports and submittals made by the DesignBuilder that do not, by their terms or the terms of this Design-Build Contract, require a response or action, if the Town does not find a request, report or submittal acceptable, it shall provide written response to the Design-Builder describing its objections and the reasons therefor within 30 days of the Town’s receipt thereof. If no response is received, the request, report or submittal shall be deemed rejected unless the Town’s approval or consent may not be unreasonably delayed by the express terms hereof, and the Design-Builder may resubmit the same, with or without modification. Requests, reports and submittals that do not require a response or other action by the Town pursuant to some specific term of this Design-Build Contract shall be deemed acceptable to the Town if the Town shall not have objected thereto within 30 days of the receipt thereof.
SECTION 17.7. PROPERTY RIGHTS.
(A) Protection from Infringement. The Design-Builder shall pay all royalties and license fees in connection with the Contract Obligations during the Term. Except as provided in subsection (C) of this Section, the Design-Builder shall indemnify, defend and hold harmless the Town Indemnities in accordance with and to the extent provided in Section 15.1 (Design-Builder’s Obligation to Indemnify) from and against all Loss-and-Expense arising out of or related to the infringement or unauthorized use of any patent, trademark, copyright or trade secret relating to, or for the Contract Obligations. The Design-Builder’s indemnity pursuant to this Section shall apply only when infringement occurs or is alleged to occur from the intended 441
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use for which the Deliverable Material, process or equipment was provided by the DesignBuilder pursuant to this Design-Build Contract. (B) Substitutes for Deliverable Material, Process or Equipment. Except as provided in subsection (C) of this Section, in the event the Design-Builder or the Town is enjoined from using any Deliverable Material, process or equipment, the Design-Builder, at its sole cost and expense, shall:
(1) Acquire the right to legally use such infringing Deliverable Material, process or equipment (or any affected Design-Build Work) under infringed patents or copyrights; or
(2) Modify or replace such Deliverable Material, process or equipment (or any affected Design-Build Work) with un-infringed Deliverable Material, process or equipment (or any affected Design-Build Work) equivalent in quality, performance, useful life and technical characteristics and development; provided, however, that any such modification or replacement shall be subject to the Town’s approval, which shall not be unreasonably withheld or delayed.
(C) Exceptions to Infringement Protection. Unless otherwise agreed to by the parties, the Design-Builder’s obligations under this Section shall not apply to:
(1) Infringement resulting from the Town-directed Change Orders and Work Change Directives issued under Section 6.9(C) (Changes Required by the Town) or Section 6.11 (Work Change Directives);
(2) Infringement resulting from unauthorized additions, changes or modifications to the Deliverable Material, process or equipment made or caused to be made by the Town subsequent to delivery by the Design-Builder; or (3) Any claimed infringement which is settled without the consent of the Design-Builder.
The Design-Builder shall promptly advise the Town as to whether any the Town-directed Change Order or Work Change Directive issued under Section 6.9(C) (Changes Required by the Town) or Section 6.11 (Work Change Directives) may result in any infringement or unauthorized use and, in the event of any failure by the Design-Builder to so advise the Town, the Design-Builder will indemnify the Town for any Loss-and-Expense resulting from any such infringement or unauthorized use.
(D) Pre-Existing Intellectual Property. The Town acknowledges and agrees that in the performance of Contract Obligations under this Design-Build Contract, the DesignBuilder may use proprietary algorithms, software, hardware, databases, other background technology, and other proprietary information that the Design-Builder developed or licensed from third parties prior to the Contract Date (“Pre-Existing Intellectual Property”). Without limiting the Town’s rights with respect to the Deliverable Material, the Design-Build Work or the Project, the Design-Builder will retain all right, title, and interest in such Pre-Existing Intellectual Property. However, the Town shall have the irrevocable, perpetual, and unrestricted right from and after the Contract Date to use (or permit use of) all Pre-Existing Intellectual Property incorporated in the Deliverable Material, the Design-Build Work or the Project, all oral information received by the Town in connection with the Design-Build Work, and all ideas or methods represented by Pre-Existing Intellectual Property incorporated in the Deliverable Material or the Project, in each case without additional compensation. The DesignBuilder hereby licenses such irrevocable, perpetual, and unrestricted rights to the Town. The 442
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Town’s use of such license rights for any purpose other than the Project shall be at its own risk, and the Design-Builder shall have no liability for or relating to any such use.
Notwithstanding any other provision of this Design-Build Contract, the Design-Builder shall retain all rights, title and interest (including all Intellectual Property rights) with respect to the following specialized equipment used in the performance of the Design-Build Work:
[____________________].
(E) Protection of Proprietary Rights of the Town. The Design-Builder agrees and covenants to protect any and all proprietary rights of the Town in any material provided to the Design-Builder. Such protection of proprietary rights by the Design-Builder shall include the insertion in any copy intended for publication of a copyright mark reserving all rights to the Town in any such material provided by the Town to the Design-Builder. Additionally, any materials provided to the Design-Builder by the Town shall not be released to any third party without the written consent of the Town and shall be returned intact to the Town upon completion or termination of this Design-Build Contract. The provisions of this subsection shall not apply to material in the public domain on the Contract Date or material that subsequently comes into the public domain by other than an unauthorized disclosure.
SECTION 17.8. AFFIRMATIVE ACTION REQUIREMENTS.
(A) Applicable Law. The Design-Builder shall comply at all times with the affirmative action requirements of and the anti-discrimination requirements of the Grant Requirements, including all applicable provisions identified in Appendix 12 (Certain Grant Requirements and Guidelines).
(B) Affirmative Action Statement. The Design-Builder shall actively solicit the employment of minority group members. The Design-Builder shall actively solicit bids for the subcontracting of goods or services from qualified minority businesses. The Design-Builder shall furnish evidence of the Design-Builder’s compliance with these requirements of minority employment and solicitation. The Design-Builder further agrees to consider the grant of subcontracts to said minority bidders on the basis of substantially equal proposals in the light most favorable to said minority businesses. As used in this Section, the term “minority business” means a business at least fifty-one percent of which is owned by minority group members. Minority group members include, but are not limited to, blacks, women, native Americans, Asians, Eskimos, Aleuts, and Hispanics. The Design-Builder and all subcontractors shall also comply with the anti-discrimination requirements of the Grant Requirements, including all applicable provisions identified in Appendix 12 (Certain Grant Requirements and Guidelines). The Design-Builder agrees to take all steps necessary to comply with all federal, state and Town laws and policies regarding non-discrimination and equal employment opportunities. The Design-Builder, and all of its subcontractors, shall not discriminate in any employment action because of race, religion, color, national origin or ancestry, sex, gender identity, sexual orientation, age, marital status, familial status or the presence of any sensory, mental, or physical handicap. In the event of non-compliance by the Design-Builder or its subcontractors with any of the non-discrimination provisions of this Contract, the Town, shall be deemed to have cause to terminate this Agreement, in whole or in part. The Design-Builder shall comply with all Federal and State laws, regulations and policies against discrimination.
(C) Subcontracts. The Design-Builder further agrees that the affirmative action statement in subsection (B) of this Section shall be incorporated in all Subcontracts with all labor organizations furnishing skilled, unskilled and union labor, or who may perform any such labor or services in connection with this Design-Build Contract. 443
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SECTION 17.9. GENERAL DUTY TO MITIGATE.
(A) Mitigation by the Design-Builder. In all cases where the Design-Builder is entitled to receive any relief from the Town or exercise any rights, including the right to receive any payments, costs, damages or extensions of time, whether on account of Uncontrollable Circumstance or otherwise, the Design-Builder shall use all reasonable efforts to mitigate such amount required to be paid by the Town to the Design-Builder under this Design-Build Contract, or the length of the extension of time. Upon request from the Town, the Design-Builder shall promptly submit a detailed description, supported by all such documentation as the Town may reasonably require, of the measures and steps taken by the Design-Builder to mitigate and meet its obligations under this Section. (B) Mitigation by the Town. In all cases where the Town is entitled to receive from the Design-Builder any compensation, costs or damages, but not in any other cases, the Town shall use all reasonable efforts to mitigate such amount required to be paid by the Design-Builder to the Town under this Design-Build Contract, provided that such obligation shall not require the Town to:
(1) Take any action which is contrary to the public interest, as determined by the Town in its discretion;
(2) Undertake any mitigation measures that might be available arising out of its status as a Governmental Body, but which measure would not normally be available to a private commercial party; or
(3) Alter the amount of liquidated damages it is entitled to receive hereunder.
the Town shall have no obligation to mitigate, implied or otherwise, except as set forth in this Section or as expressly provided in this Design-Build Contract. Upon request by the DesignBuilder, the Town shall promptly submit a detailed description, supported by all such documentation as the Design-Builder may reasonably require, of the measures and steps taken by the Town to mitigate and meet its obligations under this Section.
SECTION 17.10. ASSIGNMENT OF ANTI-TRUST CLAIMS.
In accordance with Section 7103.5 of the California Public Contract Code, in entering into this Design-Build Contract, the Design-Builder offers and agrees to assign to the Town all rights, title and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the California Business and Professions Code), arising from purchases of goods, services or materials pursuant to this Design-Build Contract. The assignment shall be made and become effective at the time the Town tenders final payment to the Design-Builder for the Design-Build Work, without further acknowledgement by the parties.
SECTION 17.11. ACTIONS OF TOWN IN ITS GOVERNMENTAL CAPACITY.
Nothing in this Design-Build Contract shall be interpreted as limiting the rights and obligations of the Town under Applicable Law in its governmental capacity (including police power actions to protect health, safety and welfare or to protect the environment), or as limiting the right of the Design-Builder to bring any action against the Town, not based on this Design-Build Contract, arising out of any act or omission of the Town in its governmental capacity.
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SECTION 17.12. ASSIGNMENT.
(A) By the Design-Builder. The Design-Builder shall not assign, transfer, convey, lease, encumber or otherwise dispose of this Design-Build Contract, its right to execute the same, or its right, title or interest in all or any part of this Design-Build Contract or any monies due hereunder whatsoever prior to their payment to the Design-Builder, whether legally or equitably, by power of attorney or otherwise, without the prior written consent of the Town.
Any such approval given in one instance shall not relieve the Design-Builder of its obligation to obtain the prior written approval of the Town to any further assignment. Any such assignment of this Design-Build Contract which is approved by the Town, shall require the assignee of the Design-Builder to assume the performance of and observe all obligations, representations and warranties of the Design-Builder under this Design-Build Contract which shall remain in full force and effect during this Design-Build Contract. The approval of any assignment, transfer or conveyance shall not operate to release the Design-Builder in any way from any of its obligations under this Design-Build Contract unless such approval specifically provides otherwise. In the event of any assignment or subletting without the prior written approval of the Town, the Town may, in addition to any other remedy provided herein, withhold any further payment of Contract Compensation.
(B) By the Town. The Town may not assign its rights or obligations under this Design-Build Contract without the prior written consent of the Design-Builder, which may be given or withheld in the Design-Builder’s reasonable discretion. The Town may, however, assign its rights and obligations under this Design-Build Contract, without the consent of the Design-Builder, to another Governmental Body if such assignee assumes, and is legally capable of discharging the duties and obligations of the Town hereunder.
SECTION 17.13. CONFIDENTIALITY.
(A) Confidential Nature of Information. The Design-Builder shall treat all confidential information obtained from the Town in the performance of this Design-Build Contract as confidential and proprietary to the Town to the extent permitted by law. “Confidential Information”, for purposes of this covenant, means any information and materials which is clearly identified or marked as being “confidential” or “proprietary” or otherwise marked in accordance with applicable federal law by the disclosing party. Confidential Information does not include information which: (1) was in the public domain at the time of a disclosing party’s communication thereof to the receiving party; (2) entered the public domain through no fault of the receiving party subsequent to the time of the disclosing party’s communication thereof to the receiving party; (3) was in the receiving party’s possession free of any obligation of confidence at the time of the disclosing party’s communication thereof to the receiving party, as evidenced in the receiving parties records; (4) was rightfully communicated by a third party to a receiving party free of any obligation of confidence subsequent to the time of the disclosing party’s communication thereof to the receiving party; (5) was developed by employees or agents of the receiving party independently of and without reference to any proprietary information or other information that the disclosing party has disclosed in confidence to the receiving party; (6) is approved for release by written authorization of the disclosing party; or (7) the receiving party reasonably believes on advice of legal counsel it is legally obligated to disclose by law, rule, regulation, court order, or other compulsory process of a court or other governmental body, provided, however, that in such case, the receiving party shall immediately notify the disclosing party of its intention to disclose (unless the receiving party reasonably believes based on the advice of legal counsel that providing such notice would violate applicable law, rule, regulation, court order, or other compulsory process of a court or other governmental body) so that the disclosing party can take such legal action as it deems necessary or appropriate to prevent such disclosure.
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(B) Limitation on Use and Disclosure. The Design-Builder shall not use any Confidential Information obtained as a consequence of the performance of the Contract Obligations for any purpose other than the performance of the Contract Obligations in accordance with this Design-Build Contract. The Design-Builder shall not disclose any information obtained from the Town or obtained as a consequence of the performance of the Contract Obligations to any person other than its own employees, agents or Subcontractors who have a need for the information for the performance of work under this Design-Build Contract, unless such disclosure is specifically approved in writing by the Town, which approval may be withheld in the sole and absolute discretion of the Town.
SECTION 17.14. LIMITED RECOURSE TO TOWN.
No recourse shall be had to the general fund or general credit of the Town for the payment of any amount due the Design-Builder hereunder, whether on account of the DesignBuild Price or for any Loss-and-Expense or payment or claim of any nature arising from the performance or non-performance of the Town’s obligations hereunder, except to the extent of pursuing payment for unpaid amounts due the Design-Builder under this Design-Build Contract for completed Design-Build Work for which the Design-Builder has not previously been paid. The sole recourse of the Design-Builder for any other amounts shall be to the proceeds of the Grants. All such Grant proceeds shall be held for the uses permitted and required by the Grant documentation and by Applicable Law, and no such amounts shall constitute property of the Design-Builder.
SECTION 17.15. BINDING EFFECT.
This Design-Build Contract shall inure to the benefit of and shall be binding upon the Town and the Design-Builder and any assignee acquiring an interest hereunder consistent with Section 17.12 (Assignment).
SECTION 17.16. AMENDMENT AND WAIVER.
(A) Contract Amendments. This Design-Build Contract may not be amended except by a written agreement signed by the parties in accordance with Section 17.5 (Contract Amendments).
(B) Waiver. Any of the terms, covenants, and conditions of this Design-Build Contract may be waived at any time by the party entitled to the benefit of such term, covenant or condition if such waiver is in writing and executed by the party against whom such waiver is asserted.
SECTION 17.17. NOTICES.
(A) Procedure. All notices, consents or approvals or written communications (unless otherwise provided in the communication plan required to be developed pursuant to Appendix 2 (Preliminary Services)) given pursuant to the terms of this Design-Build Contract shall be:
(1) In writing and delivered in person;
(2) Transmitted by certified mail, return, receipt requested, postage prepaid or by overnight courier utilizing the services of a nationally-recognized overnight courier service with signed verification of delivery; or
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(3) Given by email transmission, if a signed original of the emailed letter or other communication is deposited in the United States Mail within two days after transmission.
Notices shall be deemed given only when actually received at the address first given below with respect to each party; provided, however, that email transmissions shall be deemed given only when the signed original of the emailed letter or other communication is received at such address. Either party may, by like notice, designate further or different addresses to which subsequent notices shall be sent.
(B) Town Notice Address. Notices required to be given to the Town shall be addressed as follows:
Town of Paradise
5555 Skyway
Paradise, California 95969
Attn: Public Works Director, Marc Mattox
Email: [email protected]
Telephone: ([___]) [___]-[____]
with a copy to:
Town of Paradise
5555 Skyway
Paradise, California 95969
Attn: Public Works, Engineering Department, Colin
Nelson
Email: [email protected]
Telephone: ([___]) [___]-[____]
with a copy to:
Scott E. Huber, Esq.
Town Attorney
Town of Paradise
Cole Huber LLP
2281 Lava Ridge Court #300
Roseville, CA 95661
Email: [email protected]
Telephone: (916) 780-9009
(C) Design-Builder Notice Address. Notices required to be given to the Design-Builder shall be addressed as follows:
Mountain Cascade, Inc.
555 Exchange Court
Livermore, California 94550
Attn: Peter Foote
Email: [email protected]
Telephone: (925) 337-1685
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With a copy to:
Mountain Cascade, Inc.
555 Exchange Court
Livermore, California 94550
Attn: Randy Buckman
Email: [email protected]
Telephone: (925) 570-8413
and
Mountain Cascade, Inc.
555 Exchange Court
Livermore, California 94550
Attn: Roger Williamson
Email: [email protected]
Telephone: (925) 525-2794
SECTION 17.18. OTHER NOTICES.
(A) Notice of Litigation. In the event the Design-Builder or the Town receives notice of or undertakes the defense or the prosecution of any Legal Proceedings in connection with the Project, the party receiving such notice or undertaking such defense or prosecution shall give the other party timely notice of such proceedings and shall inform the other party in advance of all hearings regarding such proceedings. For purposes of this Section only, “timely notice” shall be deemed given if the receiving party has a reasonable opportunity to provide objections or comments or to proffer to assume the defense or prosecution of the matter in question, given the deadlines for response established by the relevant rules of procedure. (B) Notice of Third Party Claim. In the event the Town receives any notice, demand, letter or other document concerning any claim made by one or more third parties (including claims for loss of or physical damage to property or assets), or any claim for, or in respect of, the death, personal injury, disease or illness of any person, including the Town, relating to this Design-Build Contract, the Town shall give the Design-Builder timely notice of such in satisfaction of the requirement of Section 9201(b) of the California Public Contract Code. The reasonable costs incurred by the Town in providing such notification to the DesignBuilder shall be reimbursed by the Design-Builder to the Town.
SECTION 17.19. FURTHER ASSURANCES.
The Town and Design-Builder each agree to execute and deliver such further instruments and to perform any acts that may be necessary or reasonably requested in order to give full effect to this Design-Build Contract. The Town and the Design-Builder, in order to carry out this Design-Build Contract, each shall use all commercially reasonable efforts to provide such information, execute such further instruments and documents and take such actions as may be reasonably requested by the other and not inconsistent with the provisions of this Design-Build Contract and not involving the assumption of obligations or liabilities different from or in excess of or in addition to those expressly provided for herein.
SECTION 17.20. RIGHTS OF GRANTING AGENCIES AND FEDERAL
AGENCIES.
The parties acknowledge and agree that the Town intends to utilize Grants for the entirety of its financing structure. The Design-Builder hereby acknowledges that the 448
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Article 17 – Miscellaneous Provisions
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utilization of the Grants is predicated on complying with all applicable requirements of the Grants, including, as applicable, complying with all applicable provisions identified in Appendix 12 (Certain Grant Requirements and Guidelines). In furtherance of such compliance, the Granting Agencies and the Federal Agencies are each made express third-party beneficiaries of this Design-Build Contract with the power to enforce any remedy, claim, liability, reimbursement or cause of action of the Town against the Design-Builder under this Design-Build Contract not involving or subject to the discretion of the Town until the date all amounts payable under the applicable Grant have been satisfied or paid in full. In furtherance of such compliance, the Granting Agencies and the Federal Agencies have been granted access to the Books and Records pursuant to Section 9.10(B) (Town Rights to Audit and Examine Payments).
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Design-Build Contract to be executed by their duly authorized representatives as of the day and year first above written.
TOWN OF PARADISE, a California municipal
corporation
_________________________________________
Jim Goodwin
Town Manager
MOUNTAIN CASCADE, INC.
By: ________________________________________
[Name]
[Title]
Approved and certified as being in conformance
with the requirements of the Public Contract Code
Section 20170 et seq.:
_________________________________________
Scott E. Huber
Town Attorney
Approved Effective: ____________________
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TRANSACTION FORMS
TO THE
DESIGN-BUILD CONTRACT
FOR THE
TOWN OF PARADISE SEWER PROJECT
between
THE TOWN OF PARADISE
and
MOUNTAIN CASCADE, INC.
Dated
[___________, 2024]
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TRANSACTION FORM A
FORM OF PERFORMANCE BOND
(EARLY WORK PACKAGE AMENDMENT)
453
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FORM OF PERFORMANCE BOND (EARLY WORK PACKAGE AMENDMENT) KNOW ALL PERSONS BY THESE PRESENTS:
That we, [____________________], hereinafter referred to as “Design-Builder”, as principal, and ___________________________________ as surety, are held and firmly bound unto the Town of Paradise, a municipal corporation organized and existing and by virtue of the laws of the State of California (the “Owner”), in the sum of _____________________________ dollars ($______________) lawful money of the United States of America, for the payment of which sum, well and truly to be made, we bind ourselves, heirs, executors, administrators, successors, and assigns jointly and severally, firmly by these presents.
The condition of the foregoing obligation is such that, WHEREAS, the Design-Builder has been awarded and entered into the annexed DesignBuild Contract with the Owner for the Town of Paradise Sewer Project, dated as of ______________, 20[__], as amended from time to time (the “Design-Build Contract”), WHEREAS, the Design-Builder and the Owner have entered into an Early Work Package Amendment dated __________ (“Early Work Package Amendment [1]”), with an Early Work Package Price of __________ ($__________);
WHEREAS, one of the conditions of the Design-Build Contract is that the DesignBuilder provide this bond for Early Work Package Amendment [1]; and WHEREAS, for purposes of this bond, the term “Work” refers to all of the DesignBuilder’s obligations under the Design-Build Contract to perform Early Work Package Amendment [1];
NOW, THEREFORE, if the Design-Builder, its heirs, executors, administrators, successors, and assigns shall well and truly do and perform all of the covenants and obligations of the Design-Build Contract and any alteration thereof made as therein provided, on its part to be done and performed at the times and in the manner specified therein, then this obligation shall be null and void, otherwise it shall be and remain in full force and effect inclusive of any period of any guarantees or warranties required under the Design-Build Contract.
Any alterations in the work to be done or the material to be furnished, which may be made pursuant to the terms of the Design-Build Contract, shall not in any way release either the Design-Builder or the surety, nor shall any extensions of time granted under the provisions of the Design-Build Contract release either the Design-Builder or the surety, and notice of such alterations or extensions of the Design-Build Contract is hereby waived by the surety.
The surety hereby waives the provisions of California Civil Code Sections 2819 (regarding exoneration of sureties in certain circumstances), 2845 (regarding certain limitations on remedies against sureties) and 2849 (regarding a surety’s rights as to other security held by the creditor).
In the event suit is brought upon this bond by the Owner and judgment is recovered, the surety shall pay all costs incurred by the Owner in such suit, including, but not limited to, reasonable attorneys’ fees and administrative and consultant costs to be fixed by the court.
Any proceeding, legal or equitable, under this bond shall be instituted in State courts located in Santa Clara County, California or in federal courts located in the Northern District of California.
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The address or addresses at which the principal and surety may be served with notices, papers and other documents under the California Bond and Undertaking Law (California Code of Civil Procedure Section 995.010 et seq.) is the following: __________________________________. 456
A-1
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WITNESS our hands this ________ day of _______________________, 20__. (Seal) Design-Builder
By_____________________________
_____________________________
Title
(Surety’s Corporate Seal) Surety
By______________________________
_____________________________
Title
_____________________________
Address of Surety
_____________________________
_____________________________
Notice: No substitution or revision to this bond form will be accepted. 457
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ACKNOWLEDGMENT BY NOTARY PUBLIC
[Cal. Civ. Code, § 1189]
State of California )
County of )
On _________________ before me, ____________________________________, a notary public, personally appeared _________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _______________________________ (Seal)
[Any acknowledgement taken in another state shall be sufficient if it is taken in accordance with the laws of the state where the acknowledgement is made.] (Attach proof of authority of attorney in fact of surety.) 458
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TRANSACTION FORM B
FORM OF PAYMENT BOND
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FORM OF PAYMENT BOND FOR MATERIALS AND LABOR
KNOW ALL PERSONS BY THESE PRESENTS:
That we, [____________________], hereinafter referred to as “Design-Builder”, as principal, and _______________________________________ as surety, are held and firmly bound unto the Town of Paradise, a municipal corporation organized and existing and by virtue of the laws of the State of California (the “Owner”), in the sum of ____________________ dollars ($_____________) lawful money of United States of America, for the payment of which sum, well and truly to be made, we bind ourselves, heirs, executors, administrators, successors, and assigns jointly and severally, firmly by these presents.
The condition of the foregoing obligation is such that, WHEREAS, the Design-Builder has been awarded and entered into the annexed DesignBuild Contract with the Owner for the Town of Paradise Sewer Project, dated as of ______________, 20[__], as amended from time to time (the “Design-Build Contract”), whereby the Design-Builder is required by the Owner to give this bond on the GMP Amendment Date (as defined in the Design-Build Contract) pursuant to said Design-Build Contract; NOW, THEREFORE, if Design-Builder, or its subcontractors, fails to pay any of the persons referred to in Section 9100 of the Civil Code of the State of California for any materials, provisions, provender, equipment, or other supplies, used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or for amounts due under the Unemployment Insurance Code or for any amounts required to be deducted, withheld and paid over to the Employment Development Department from the wages of employees of the Design-Builder and its subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor, the surety will pay for the same, in an amount not exceeding the sum specified above, and also, in case suit is brought upon this bond, reasonable attorneys’ fees, to be fixed by the court. This bond shall inure to the benefit of any and all persons entitled to file claims under Section 9100 of the Civil Code of the State of California so as to give a right of action to them or their assigns in any suit brought upon this bond.
Any alterations in the work to be done, or the materials to be furnished, which may be made pursuant to the terms of the Design-Build Contract, shall not in any way release either the Design-Builder or the surety, nor shall any extensions of time granted under the provisions of the Design-Build Contract release either Design-Builder or the surety, and notice of such alterations or extensions of the Design-Build Contract is hereby waived by the surety.
The surety hereby waives the provisions of California Civil Code Sections 2819 (regarding exoneration of sureties in certain circumstances), 2845 (regarding certain limitations on remedies against sureties) and 2849 (regarding a surety’s rights as to other security held by the creditor).
The address or addresses at which the Design-Builder and surety may be served with notices, papers and other documents under the California Bond and Undertaking Law (California Code of Civil Procedure Section 995.010 et seq.) is the following:
__________________________________.
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WITNESS our hands this ________ day of _______________________, 20__. (Seal) Design-Builder
By_____________________________
_____________________________
Title
(Surety’s Corporate Seal) Surety
By______________________________
_____________________________
Title
_____________________________
Address of Surety
_____________________________
_____________________________
Notice: No substitution or revision to this bond form will be accepted. 463
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ACKNOWLEDGMENT BY NOTARY PUBLIC
[Cal. Civ. Code, § 1189]
State of California )
County of )
On _________________ before me, ____________________________________, a notary public, personally appeared _________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _______________________________ (Seal)
[Any acknowledgement taken in another state shall be sufficient if it is taken in accordance with the laws of the state where the acknowledgement is made.] (Attach proof of authority of attorney in fact of surety.) 464
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TRANSACTION FORM C
FORM OF PERFORMANCE BOND
(GMP AMENDMENT)
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FORM OF PERFORMANCE BOND (GMP AMENDMENT)
KNOW ALL PERSONS BY THESE PRESENTS:
That we, [____________________], hereinafter referred to as “Design-Builder”, as principal, and ___________________________________ as surety, are held and firmly bound unto the Town of Paradise, a municipal corporation organized and existing and by virtue of the laws of the State of California (the “Owner”), in the sum of _____________________________ dollars ($______________) lawful money of the United States of America, for the payment of which sum, well and truly to be made, we bind ourselves, heirs, executors, administrators, successors, and assigns jointly and severally, firmly by these presents.
The condition of the foregoing obligation is such that, WHEREAS, the Design-Builder has been awarded and entered into the annexed DesignBuild Contract with the Owner for the Town of Paradise Sewer Project, dated as of ______________, 20[__], as amended from time to time (the “Design-Build Contract”), WHEREAS, the Design-Builder and the Owner have entered into a GMP Amendment dated __________ (“GMP Amendment”), with a Base Guaranteed Maximum Price of __________ ($__________);
WHEREAS, one of the conditions of the Design-Build Contract is that the DesignBuilder provide this bond for the Design-Build Work; and WHEREAS, for purposes of this bond, the term “Work” refers to all of the DesignBuilder’s obligations under the Design-Build Contract to perform Design-Build Work; NOW, THEREFORE, if the Design-Builder, its heirs, executors, administrators, successors, and assigns shall well and truly do and perform all of the covenants and obligations of the Design-Build Contract and any alteration thereof made as therein provided, on its part to be done and performed at the times and in the manner specified therein, then this obligation shall be null and void, otherwise it shall be and remain in full force and effect inclusive of any period of any guarantees or warranties required under the Design-Build Contract.
Any alterations in the work to be done or the material to be furnished, which may be made pursuant to the terms of the Design-Build Contract, shall not in any way release either the Design-Builder or the surety, nor shall any extensions of time granted under the provisions of the Design-Build Contract release either the Design-Builder or the surety, and notice of such alterations or extensions of the Design-Build Contract is hereby waived by the surety.
The surety hereby waives the provisions of California Civil Code Sections 2819 (regarding exoneration of sureties in certain circumstances), 2845 (regarding certain limitations on remedies against sureties) and 2849 (regarding a surety’s rights as to other security held by the creditor).
In the event suit is brought upon this bond by the Owner and judgment is recovered, the surety shall pay all costs incurred by the Owner in such suit, including, but not limited to, reasonable attorneys’ fees and administrative and consultant costs to be fixed by the court.
Any proceeding, legal or equitable, under this bond shall be instituted in State courts located in Santa Clara County, California or in federal courts located in the Northern District of California.
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The address or addresses at which the principal and surety may be served with notices, papers and other documents under the California Bond and Undertaking Law (California Code of Civil Procedure Section 995.010 et seq.) is the following: __________________________________. 469
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WITNESS our hands this ________ day of _______________________, 20__. (Seal) Design-Builder
By_____________________________
_____________________________
Title
(Surety’s Corporate Seal) Surety
By______________________________
_____________________________
Title
_____________________________
Address of Surety
_____________________________
_____________________________
Notice: No substitution or revision to this bond form will be accepted. 470
C-1
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ACKNOWLEDGMENT BY NOTARY PUBLIC
[Cal. Civ. Code, § 1189]
State of California )
County of )
On _________________ before me, ____________________________________, a notary public, personally appeared _________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _______________________________ (Seal)
[Any acknowledgement taken in another state shall be sufficient if it is taken in accordance with the laws of the state where the acknowledgement is made.] (Attach proof of authority of attorney in fact of surety.) 471
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HDW Draft 2/2/24
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APPENDICES
TO THE
DESIGN-BUILD CONTRACT
FOR THE
TOWN OF PARADISE SEWER PROJECT
between
THE TOWN OF PARADISE
and
MOUNTAIN CASCADE, INC.
Dated as of
[___________, 2024]
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TABLE OF CONTENTS
Page
APPENDIX 1 PROJECT AND SITE INFORMATION.............................................................. 1-1
1.1. PURPOSE ..................................................................................................... 1-1
1.2. PROJECT SITE DESCRIPTION ...................................................................... 1-1
1.3. REFERENCE DOCUMENTS .......................................................................... 1-1 ATTACHMENT 1A – POTENTIAL PROJECT ALIGNMENTS
APPENDIX 2 PRELIMINARY SERVICES ............................................................................. 2-1
2.1. GENERAL ..................................................................................................... 2-1
2.2. SCOPE OF PHASE 1A BASE PRELIMINARY SERVICES TASKS ...................... 2-1
2.3. PHASE 1A ADDITIONAL PRELIMINARY SERVICES ...................................... 2-16
2.4. PHASE 1A PRELIMINARY SERVICES SCHEDULE ....................................... 2-16
2.5. PHASE 1A PRELIMINARY SERVICES COMPENSATION ................................ 2-16 ATTACHMENT 2A – PLANNED SURVEY EXTENTS
ATTACHMENT 2B - PRELIMINARY SERVICES SCHEDULE
ATTACHMENT 2B-1 – PHASE 1A PRELIMINARY SERVICES SCHEDULE ATTACHMENT 2B-2 – PHASE 1B PRELIMINARY SERVICES SCHEDULE ATTACHMENT 2C – PRELIMINARY SERVICES NOT-TO-EXCEED PRICING ATTACHMENT 2C-1 – PHASE 1A PRELIMINARY SERVICES NOT-TOEXCEED PRICING ATTACHMENT 2C-2 – PHASE 1B PRELIMINARY SERVICES NOT-TOEXCEED PRICING ATTACHMENT 2D – PRELIMINARY SERVICES BILLING RATES
ATTACHMENT 2D-1 – PHASE 1A PRELIMINARY SERVICES BILLING RATES
ATTACHMENT 2D-2 – PHASE 1B PRELIMINARY SERVICES BILLING RATES
APPENDIX 3 GOVERNMENTAL AND NON-GOVERNMENTAL APPROVALS ......................... 3-1
3.1. PURPOSE ..................................................................................................... 3-1
3.2. GOVERNMENT AND NON-GOVERNMENTAL APPROVALS ............................. 3-1 APPENDIX 4 TECHNICAL STANDARDS AND BASELINE DESIGN DOCUMENTS ................. 4-1
4.1. TECHNICAL STANDARDS ............................................................................. 4-1
4.2. BASELINE DESIGN DOCUMENTS ................................................................. 4-1 APPENDIX 5 GENERAL DESIGN-BUILD WORK REQUIREMENTS ...................................... 5-1
5.1. PURPOSE ..................................................................................................... 5-1
5.2. MANAGEMENT AND COORDINATION ........................................................... 5-1
5.3. DESIGN-BUILD PERIOD WORK SCHEDULE ................................................. 5-1
5.4. CONSTRUCTION MEETINGS AND REPORTS ................................................. 5-4
5.5. CONSTRUCTION WORK GENERALLY ........................................................... 5-8
5.6. COORDINATION OF CONSTRUCTION WORK AND OPERATIONS ................. 5-10
5.7. CONSTRUCTION SAFETY AND SECURITY .................................................. 5-10
5.8. OPERATIONS AND MAINTENANCE MANUAL .............................................. 5-11
5.9. SERVICE MANUALS ................................................................................... 5-13
5.10. ENVIRONMENTAL REVIEW AND PROTECTION ........................................... 5-14 APPENDIX 6 QUALITY ASSURANCE AND QUALITY CONTROL REQUIREMENTS ............... 6-1
6.1. PURPOSE ..................................................................................................... 6-1
6.2. TOWN’S QUALITY OBJECTIVES ................................................................... 6-1 475
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6.3. ROLES AND RESPONSIBILITIES ................................................................... 6-2
6.4. QUALITY MANAGEMENT PLAN UPDATE AND IMPLEMENTATION ................. 6-2
6.5. DESIGN QUALITY CONTROL AND QUALITY ASSURANCE
REQUIREMENTS .......................................................................................... 6-3
6.6. CONSTRUCTION QUALITY CONTROL REQUIREMENTS ................................ 6-4
6.7. INSPECTION OF DESIGN-BUILD WORK ....................................................... 6-6
6.8. TIME OF INSPECTION AND TESTS ............................................................... 6-7
6.9. MATERIALS SAMPLING AND TESTING ......................................................... 6-7
6.10. MATERIALS TESTING SERVICES .................................................................. 6-8
6.11. INSTALLATION ............................................................................................. 6-9
6.12. PERSONNEL QUALIFICATIONS ................................................................... 6-10 APPENDIX 7 DESIGN-BUILD WORK REVIEW PROCEDURES ............................................ 7-1
7.1. OVERVIEW ................................................................................................... 7-1
7.2. DOCUMENTS TO BE SUBMITTED ................................................................ 7-1
7.3. TOWN REVIEW DURING GOVERNMENTAL AND NON-GOVERNMENTAL APPROVAL PROCESS ................................................................................... 7-3
7.4. TOWN DOCUMENT REVIEW ......................................................................... 7-3
7.5. TOWN CONSTRUCTION INSPECTION ........................................................... 7-5
7.6. FINAL SURVEY AND RECORD DRAWINGS ................................................... 7-6 APPENDIX 8 DESIGN-BUILD PRICE .................................................................................. 8-1
8.1. PURPOSE ..................................................................................................... 8-1
8.2. DESIGN-BUILD PRICE .................................................................................. 8-1
8.3. DESIGN-BUILD PERIOD COSTS ................................................................... 8-3
8.4. UNALLOWABLE COSTS ................................................................................ 8-6
8.5. GENERAL CONDITIONS FEE ........................................................................ 8-7
8.6. DESIGN-BUILDER FEE ................................................................................ 8-7
8.7. GUARANTEED MAXIMUM PRICE .................................................................. 8-8
8.8. TOWN ALLOWANCE ..................................................................................... 8-9
8.9. DESIGN-BUILDER CONTINGENCY ............................................................... 8-9
8.10. SPECIFIED PROJECT RISK CONTINGENCY .................................................. 8-9
8.11. SHARED SAVINGS AMOUNT ...................................................................... 8-10 ATTACHMENT 8A – DESCRIPTION OF GENERAL CONDITIONS COSTS ATTACHMENT 8B – BILLING RATES FOR DESIGN-BUILD PERIOD WORK
PROFESSIONAL SERVICES PERSONNEL
ATTACHMENT 8C – BILLING RATES FOR SELF-PERFORMED CONSTRUCTION WORK
ATTACHMENT 8D – ANTICIPATED DESIGN-BUILD PERIOD WORK COST
SCHEDULE AND DESIGN-BUILDER CONTINGENCY
APPENDIX 9 SUBSTANTIAL COMPLETION ........................................................................ 9-1
9.1. PURPOSE ..................................................................................................... 9-1
9.2. RELATIONSHIP TO BASELINE DESIGN DOCUMENTS ................................... 9-1
9.3. SUBSTANTIAL COMPLETION PROCEDURES ................................................ 9-1 APPENDIX 10 INSURANCE REQUIREMENTS .................................................................... 10-1
10.1. GENERAL REQUIREMENTS ........................................................................ 10-1
10.2. EVIDENCE OF INSURANCE ........................................................................ 10-2
10.3. CERTIFICATE REQUIREMENTS SPECIFIC REPRESENTATIONS .................. 10-2
10.4. SUBCONTRACTORS ................................................................................... 10-3
10.5. CERTIFICATE REQUIREMENTS FOR COVERAGES AND LIMITS ................. 10-3 476
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APPENDIX 11 KEY PERSONNEL AND APPROVED SUBCONTRACTORS ............................. 11-1
11.1. PURPOSE ................................................................................................... 11-1
11.2. KEY PERSONNEL ....................................................................................... 11-1
11.3. APPROVED SUBCONTRACTORS ................................................................. 11-1
11.4. SUBCONTRACTING PLAN ........................................................................... 11-2 ATTACHMENT 11A – SUBCONTRACTING PLAN
APPENDIX 12 CERTAIN STATE AND FEDERAL GRANT REQUIREMENTS AND GUIDELINES .............................................................................................. 12-1 ATTACHMENT 12A – DAVIS BACON ACT WAGE DETERMINATIONS
APPENDIX 13 CERTAIN PROVISIONS OF THE CALIFORNIA PUBLIC CONTRACT CODE .... 13-1 477
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APPENDIX 1
PROJECT AND SITE INFORMATION
478
Town of Paradise Sewer Project Appendix 1
Project and Project Sites
A1-1
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APPENDIX 1
PROJECT AND SITE INFORMATION
1.1. PURPOSE
The purpose of this Appendix is to describe the Project and Project site, and to list Reference Documents for the Project.
1.2. PROJECT SITE DESCRIPTION
The Project will establish a municipal sewer system for the Town, as well as connection to the City of Chico’s Water Pollution Control Plant (WPCP) for regional treatment of the Town’s wastewater. The Project includes three distinct components to serve approximately 1,400 parcels within the Sewer Service Area (SSA): a core sewer collection system in the Town of Paradise (Core Collection System), an approximately 18-mile sewer export pipeline to convey wastewater to the City of Chico’s WPCP (Export Pipeline), and a sewer pipeline connection to the City of Chico’s WPCP (WPCP Connection).
An overview of the Project location is shown on Attachment 1A as copied from the Final PEIR – Executive Summary, Figure ES-1. Proposed Project Location.
The following key components are associated with the Core Collection System, Export Pipeline and WPCP Connection.
• Core Collection System – approximately 157,000 feet of 6- to 8-inch-diameter gravity sewers, approximately 29,000 feet of 2- to 4-inch-diameter force mains, and up to 28 pump stations.
• Export Pipeline – approximately 18-miles of 8- to 12-inch sewer pipeline dropping approximately 1,300 feet in elevation from the Town to the Chico WPCP. • WPCP Connection – a flow control and metering structure and necessary modifications to the City of Chico’s WPCP to allow wastewater flow into the WPCP.
1.3. REFERENCE DOCUMENTS
The following Reference Documents are being made available to the Design-Builder at the start of Preliminary Services. The Design-Builder is responsible for reviewing and updating the list during The Preliminary Services Period with additional documents obtained or developed by the Design-Builder. The Town may also update the Reference Document list from time to time with new information via amendments to the Design-Build Contract.
Table A1-1. Reference Documents
Studies, Plans, Reports, and Legal Documents
No. Document name Document type
1. 2020 HDR Phase 1a Executive Summary Technical Report
2. 2022 HDR Technical Memo 8 Export Pipeline Analysis Technical Report 479
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Project and Project Sites
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Table A1-1. Reference Documents
3. 2022 HDR Technical Memo 8 Export Pipeline Analysis Technical Report
4. 2022 HDR Technical Memo 9 EIR Construction Analysis Technical Report
5. 2022 HDR Technical Memo 10 Analysis of Extended
Collection System Technical Report
6. 2022 HDR Technical Memo 11 Environmental Permitting
Strategy Technical Report
7. Final PEIR Documents:
• Final PEIR Main Document
• Final PEIR Addendum
• Appendix A: NOP Scoping Report
• Appendix B: Town of Paradise 1994 General Plan
Resolution and Amendments
• Appendix C: Regulatory Framework
• Appendix D: Emissions Modeling
• Appendix E: Vegetation Community Descriptions and
Special-Status Species Accounts
• Appendix F: Swainson’s Hawk Survey and Elderberry
Shrub Mapping Report
• Appendix G: Tribal Consultation
• Appendix H: Pump Station Energy Consumption
Calculation
• Appendix I: Public Comments and Responses on Draft
PEIR
• Final PEIR Notice of Determination
Environmental Report
8. 2023 Inter-Municipal Agreement, City of Chico Wastewater Treatment Services to the Town of Paradise Legal Document
9. 2023 Board Approval/LAFCO Resolution Authorizing
Proceedings
Record drawings and work orders may be included in the Reference Documents as updated by the Town or Design-Builder in advance of or during Preliminary Services Period services. 480
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ATTACHMENT 1A
POTENTIAL PROJECT ALIGNMENTS
481
Town of Paradise Sewer Project Appendix 1
Project and Project Sites
A1-1
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ATTACHMENT 1A
POTENTIAL PROJECT ALIGNMENTS
482
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APPENDIX 2
PRELIMINARY SERVICES
483
Town of Paradise Sewer Project Appendix 2
Preliminary Services
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APPENDIX 2
PRELIMINARY SERVICES
2.1. GENERAL
The Preliminary Services will be delivered in multiple phases. Initially, the Preliminary Services shall be delivered in two phases: the Phase 1a Preliminary Services and the Phase 1b Preliminary Services. The parties acknowledge that the Town may desire to expand the scope of the Preliminary Services performed by the Design-Builder under this Design-Build Contract at any time, in its discretion, beyond those services included in the Phase 1a Preliminary Services and the Phase 1b Preliminary Services based on the recommendations of the Design-Builder, to be delivered in additional phases of the Preliminary Services, to be defined sequentially as Phase 1c, Phase 1d, etc.
This appendix sets forth the Scope of each phase of the Preliminary Services, the not-to-exceed price for conducting such Scope, as agreed to by the parties in executing this Design-Build Contract, the Phase 1b Base Preliminary Services Amendment and any other Contract Amendment to provide for an additional phase of Preliminary Services, as well as all inclusive billing rates for the Preliminary Services Period services, and information on invoicing the Preliminary Services.
This appendix initially sets forth the Scope of the Phase 1a Base Preliminary Services, the notto-exceed price for conducting such Scope, as well as all inclusive billing rates for the Phase 1a Preliminary Services.
2.2. SCOPE OF PHASE 1A BASE PRELIMINARY SERVICES TASKS
The scope of the Phase 1a Base Preliminary Services shall include the following tasks:
• Task 1 - Project Management
• Task 2 - Reference Document Review and Validation
• Task 3 - Field Investigations
• Task 4 - Hydraulic Model Development and Analysis
• Task 5 - Basis of Design Report
• Task 6 - Funding Support
• Task 7 - Permitting Support
• Task 8 - Stakeholder and Public Outreach Support
• Task 9 - Design and Construction Phasing Plan
• Task 10 - Cost Model
• Task 11 – Phase 1a Additional Preliminary Services
Required Deliverable Material (the “Deliverables”) for each Phase 1a Base Preliminary Services Task is identified in this Appendix. All Deliverables shall be reviewed with the Town. The DesignBuilder shall promptly correct deficiencies and shall make modifications to conform to Project requirements and achieve acceptability to the Town. Draft deliverables shall be provided to the Town in the format agreed to by the Town and documented in the “Deliverables” sections below. [Note: Formats for deliverables shall be discussed and agreed to during Phase 1a Preliminary Services.]
Specific tasks and Tasks for the scope of Phase 1a Base Preliminary Services are described below. 484
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2.2.1 TASK 1 - PROJECT MANAGEMENT
Design-Builder shall provide all necessary project management and coordination throughout Phase 1a. Project Management shall include the following Tasks.
2.2.1.1 TASK 1.1 - PROJECT MANAGEMENT AND ADMINISTRATION Project Management Documents. As part of Task 1.1 and within twenty-one (21) calendar days of Notice to Proceed (the “NTP”), the Design-Builder shall prepare and submit drafts of the following documents for review and concurrence by the Town. Final documents shall be submitted within twenty-one (21) calendar days of receipt of comments from the Town.
Throughout Phase 1a, the Design-Builder shall also implement the activities described by the documents, cause the Project team to be familiar with their contents, and keep the documents up to date.
• Project Management Plan (PMP). The PMP shall communicate basic Project requirements and approach to the Project team, including subconsultants. • Health and Safety Plan (HSP). The HSP shall describe the Design-Builder’s approach and Project team requirements and procedures to manage safety practices throughout Phase 1a and comply with all applicable Town procedures and local, state and federal regulations. Phase 1a activities include, but are not limited to site visits, field investigations, in-person meeting attendance, and applicable Town procedures and local, state and federal regulations.
• Quality Management Plan (QMP). The QMP shall identify a plan to deliver quality Phase 1a deliverables that are complete and accurate in accordance with the Draft PDB Contract and this Phase 1a Scope. The plan shall include descriptions of each team member’s role in quality control and/or quality assurance, procedures for adequate collection of data prior to design, checking of work, verification that checks were complete, corrective action, and document control.
• Document Management Plan (DMP). The DMP shall describe the Design-Builder’s approach and Project team requirements and procedures to manage all documents generated and used in the execution of the Project. This plan shall describe the tools to be used for collaboration, communication and submittal of documents from the DesignBuilder to the Town and feedback from the Town to the Design-Builder. The plan shall include protocols and naming conventions required by the Town to provide for proper and adequate documentation of technical data during Phase 1a and provide placeholders for use during the design and construction phases as well as for the life of the constructed facilities. The plan should address accommodating grant requirements. • Phase 1a Preliminary Services Schedule. The Phase 1a Preliminary Services Schedule shall contain at a minimum the following components:
• Activities for all Tasks and Tasks necessary to complete the Phase 1a Scope including, as applicable, durations for preparation of deliverables and Town review periods. • Start and finish dates for each activity
• Major milestones including all deliverable and key meeting dates • Critical Path analysis
Project Coordination and Communication. As part of Task 1.1, include general coordination and communication with the Design-Builder’s Project team and with the Town and its Owner 485
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Representative regarding issues as they arise, including but not limited to scheduling and progress of Project activities.
Risk Management. As part of Task 1.1, include overall Project risk management, incorporating all Project risks that become evident as the Project development progresses. An initial Program and Project Risk Register has been created by the Town and its Owner Representative and shall be reviewed with the Design-Builder as part of the initial “Risk Register Workshop” described in Task 1.2. Components of the initial Project Risk Register are listed below. The Risk Register shall be updated as noted in “Progress Tracking and Reporting” below. Following the initial “Risk Register Workshop”, the Town’s Owner Representative shall maintain ownership of the Project Risk Register and the Design-Builder shall provide updates to the Project Risk Register items where the Design-Builder is deemed the “Risk Owner.”
• Risk identification and description
• Risk Owner
• Estimated percent likelihood that risk may occur
• Potential schedule impact should risk occur
• Potential cost impact should risk occur
• Probability weighted cost associated with each risk item • Risk management/mitigation strategy
Progress Tracking and Reporting. The Design-Builder shall submit monthly reports summarizing Project progress. The monthly progress reports shall include a narrative summarizing the progress of the Project and shall identify any recommended actions by the Town, its Owner Representative or the Design-Builder to mitigate risks or modify the Project approach and scope. Monthly progress reports shall be due by the fifth (5th) of each month.
Attachments to the monthly progress report shall include:
• Summary of Work. Identify activities worked on and/or completed during the last month including meetings and workshops, progress on deliverables, as well as significant items related to external agencies such as grants, permits, etc. • Planned Activities. Summarize planned activities and scheduled meetings/workshops for the next month.
• Issues and Concerns. Identify issues and concerns that may affect Phase 1a Project schedule or budget and require discussion between the Town, its Owner Representative and Design-Builder.
• Progress Schedule. An updated P6 schedule file and a table of major milestones with originally scheduled completion dates and updated scheduled completion dates, including explanation of any changes to schedule since the last progress report. • Updated Action Item Log (if changed).
• Updated Decision Log (if changed).
• Updated Risk Register (if changed).
In addition, the Design-Builder shall submit a simplified weekly progress email to the Town’s Project Manager detailing the major accomplishments of the week and planned key tasks for the week ahead. This weekly email shall be due by 5 pm PT every Friday.
2.2.1.2 TASK 1.1 – DELIVERABLES
• Project Management Plan (PMP) – Draft & Final
• Health and Safety Plan (HSP) – Draft & Final
• Quality Management Plan (QMP) – Draft & Final
• Document Management Plan (DMP) – Draft & Final
• Phase 1a Preliminary Services Schedule – Draft & Final 486
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• Project Risk Register – Monthly updates (if changed)
• Action Item Log – On-going
• Decision Log – On-going
• Monthly Progress Reports – On-going
2.2.1.3 TASK 1.1 - ASSUMPTIONS
Phase 1a will be [_____] months in length.
2.2.1.4 TASK 1.2 – MEETINGS
As part of Task 1.2, the Design-Builder shall plan to participate in and/or schedule, prepare for and facilitate the following meetings, including the Design-Builder’s Project team, the Town and its Owner Representative, and any additional attendees necessary for a productive meeting. The meetings listed below are exclusive of additional meetings identified later in their respective Tasks or Tasks.
• Project Kickoff Meeting. The Design-Builder shall schedule, prepare for and facilitate a Project Kickoff Meeting. Project Kickoff meeting shall be in-person, held at Town Hall in the Town and attended by up to eight (8) Design-Builder key management staff. • Team Building and Project Chartering Workshop. The Design-Builder shall participate in one (1) in-person 6-hour Team Building and Project Chartering Workshop at Town Hall in Paradise. The Town’s Owner Representative shall schedule, prepare for and facilitate the workshop. Up to eight (8) Design-Builder key management staff shall attend. • File Storage/Team Collaboration Site Workshop. The Design-Builder shall schedule, prepare for and facilitate (1) in-person 2-hour Workshop at Town Hall in the Town. Up to eight (8) Design-Builder key management staff shall attend. • Risk Register Workshop. The Design-Builder shall prepare for and participate in one (1) in-person three-hour Risk Register Workshop at Town Hall in Paradise. The Town’s Owner Representative shall schedule and facilitate the workshop. Up to six (6) DesignBuilder key management staff shall attend. • Progress Meetings. The Design-Builder shall schedule, prepare for and facilitate onehour Progress Meetings at least every two (2) weeks. Meetings shall be hosted with hybrid participation options (MS Teams or other) and shall be attended by six (6) Design-Builder key management staff (on average).
• Weekly Collaboration Meetings. The Design-Builder shall participate in weekly collaboration meetings with the Town and its Owner Representative (two (2) – one-hour remote/hybrid meetings each week). The Town’s Owner Representative shall schedule and facilitate the meetings. Meetings shall be hosted with hybrid participation options (MS Teams or other) and shall be attended by four (4) Design-Builder key management staff (on average).
• Stakeholder Meetings. The Design-Builder shall participate in various stakeholder meetings scheduled and facilitated by the Town’s Owner Representative (i.e. septic standards committee, zoning and land use studies, Caltrans, Butte County, etc.). The fee associated with this task assumes ten (10) targeted/one-hour stakeholder meetings, attended in-person by up to four (4) Design-Builder key staff. • Project Coordination Team (PCT) Meetings. The Design-Builder shall attend monthly PCT meetings, in-person for the first meeting and via remote/hybrid option for the following months. The Town’s Owner Representative shall schedule and facilitate the meetings. The fee associated with this task assumes one-hour long meetings, attended by up to two (2) Design-Builder key staff.
• Phase 1b Review Meetings. Upon completion of all Phase 1a Tasks, the Design-Builder shall schedule, prepare for and facilitate up to three (3) in-person 2-hour review meetings 487
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to present and ultimately finalize the scope, schedule and budget for Phase 1b. Up to eight (8) Design-Builder key management staff shall attend.
2.2.1.5 TASK 1.2 – DELIVERABLES
• Meeting Agendas – Draft & Final (when facilitating) or pre-meeting comments (when participating)
• Meeting Notes – Draft & Final (when facilitating) or post-meeting comments (when participating)
2.2.1.6 TASK 1.2 – ASSUMPTIONS
• Electronic deliverables.
2.2.2 TASK 2 - REFERENCE DOCUMENT REVIEW AND VALIDATION The Design-Builder shall consult with the Town and its Owner Representative to develop a better understanding of the Project, Project site, constraints, Project requirements, and other information relevant to the Project. The Design-Builder shall schedule, prepare for and facilitate all necessary review meetings to help familiarize the Design-Builder’s Project Team with the past and on-going Project related work, as well, to allow the Design-Builder to inquire as to additional reference documentation that may be needed to progress the Project. At a minimum, the reference documents listed in Section 1.3 of Appendix 1 should be reviewed by the DesignBuilder ahead of initial review meetings.
2.2.2.1 TASK 2.1 – REVIEW EXISTING INFORMATION/DOCUMENTS Under this task the Design-Build team shall review the existing information as available by the Town and its Owner Representative. At a minimum, the following reference documents should be reviewed by the Design-Builder ahead of initial review meetings (all documents are located at https://paradisesewer.com/project-materials/):
• 2020 HDR Phase 1 Executive Summary
• 2022 HDR Technical Memo 8 Export Pipeline Analysis
• 2022 HDR Technical Memo 8 Export Pipeline Analysis
• 2022 HDR Technical Memo 9 EIR Construction Analysis
• 2022 HDR Technical Memo 10 Analysis of Extended Collection System • 2022 HDR Technical Memo 11 Environmental Permitting Strategy • Final PEIR Documents:
o Executive Summary
o Final PEIR Main Document
o Final PEIR Addendum
o Appendix A: NOP Scoping Report
o Appendix B: Town of Paradise 1994 General Plan Resolution and Amendments o Appendix C: Regulatory Framework
o Appendix D: Emissions Modeling
o Appendix E: Vegetation Community Descriptions and Special-Status Species Accounts
o Appendix F: Swainson’s Hawk Survey and Elderberry Shrub Mapping Report o Appendix G: Tribal Consultation
o Appendix H: Pump Station Energy Consumption Calculation o Appendix I: Public Comments and Responses on Draft PEIR o Final PEIR Notice of Determination
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• 2023 Inter-Municipal Agreement, City of Chico Wastewater Treatment Services to the Town of Paradise
• 2023 Board Approval/LAFCO Resolution
• Permit Matrix and necessary permit accommodations (to be provided to Design-Builder upon Notice to Proceed)
• Town land-use/parcel mapping information and GIS files. • Lidar file(s) from Town's recent Stormwater Master Planning effort.
2.2.2.2 TASK 2.2 – INFORMATION/DATA NEEDS
The Design-Builder shall prepare an information/data needs summary upon initial review of all reference documents, noting any missing data/information that the Town may have.
2.2.2.3 TASK 2.3 – INFORMATION/DATA NEEDS REVIEW WORKSHOP The Design-Builder shall schedule, prepare for and facilitate (1) in-person 8-hour Workshop at Town Hall in Paradise to discuss outstanding information/data needs following review of all information shared (and transmittal of Information/Data needs summary). It is understood that the Town/OA shall come to the workshop prepared to provide updates on various project efforts that may not yet be well documented.
2.2.2.4 TASK 2 – DELIVERABLES
• Meeting Agendas and Meeting Notes – Draft and Final
• Data/information needs summary
• Reference Document Log documenting:
o Documents, reports, drawings, and information Design-Builder has reviewed o Follow-up questions for the Town and its Owner Representative
2.2.2.5 TASK 2 – ASSUMPTIONS
• Electronic deliverables
2.2.3 TASK 3 – FIELD INVESTIGATIONS
Robust field investigations shall be required to confirm Project and site conditions. The work associated with this Task is intended to meet the following objectives:
• Inform the Design-Builder’s analysis of alternatives, including hydraulic modeling criteria, pipe alignments, and approach(es) to construction planning and methods, including accommodations for pertinent climatic information (ie groundwater in Town vs. down Skyway).
• Allow the Design-Builder to develop its recommended geotechnical design criteria. • Provide information on expected ground behavior for selection and design of trenchless methods.
• Define areas with contaminated soils, the types of contamination, and the appropriate methods for transport and disposal, including disposal locations.
This work shall be delivered as separate packages for the (1) survey effort and (2) the geotechnical and environmental hazards investigation efforts, as described in the following Tasks. 489
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2.2.3.1 TASK 3.1 – DESKTOP GEOTECHNICAL AND ENVIRONMENTAL HAZARDS STUDY The Design-Builder shall prepare a Desktop Geotechnical and Environmental Hazards Study before the preparation of the Geotechnical and Environmental Hazards Field Investigation Plan (Task 3.3) to expedite Phase 1a completion and to best inform the Field Investigation Plan. This desktop study shall identify known geologic conditions and environmental hazards along the Project alignment that shall be used to inform early project decisions and the plan for performing geotechnical and environmental hazards field investigations. The Desktop Study shall include review of available geologic, regulatory agency, mineral resource maps and literature, and previous geotechnical reports which are relevant to the geology, soil, bedrock, environmental, and groundwater conditions within the Project alignment. The Design-Builder understands that the northbound lane at Butte Creek bridge of Highway 99 was replaced by Caltrans in 2014 due to scour issues at the underpinning of the bridge. The Design-Builder shall gather and review any available geotechnical reports from Caltrans or other sources related to the construction of the new bridge in 2014. Information shall include the geologic setting, geologic hazards, historical land uses, and general hazardous materials conditions that shall potentially be encountered within the alignment during construction. The data shall then be interpreted to delineate areas of concern for significant geologic and environmental hazards or other adverse conditions. The geotechnical engineer shall perform a two-day site reconnaissance to walk and drive the Project alignment. The information shall be consolidated in a preliminary geologic map.
A Preliminary Geotechnical Report shall be prepared with preliminary geotechnical recommendations including earthwork, trenchless crossings, lateral earth pressures, seismic design parameter using the USGS on-line mapping tool, and foundation recommendations, corrosivity and groundwater conditions.
2.2.3.2 TASK 3.2 – EXISTING UTILITY RESEARCH
The Design-Builder shall complete existing utility research necessary for the development of an existing utility base map. This effort will also be useful before performing Survey Field Investigations to identify existing utility surface features to look for during the survey and help identify unmarked existing utility surface features. This will help expedite development of background CAD files that will be used for design development.
Existing utility research shall be conducted consistent with American Society of Civil Engineers Standard Guideline for Investigating and Documenting Existing Utilities (ASCE/UESI/CI 38-22) Quality Level D. This work generally includes:
• Conducting utility records research to assist in identifying utility owners that may have facilities on or be affected by the Project.
• Collecting applicable utility owner records.
• Reviewing utility owner records for:
o Indications of additional available records
o Duplicate information and credibility of such duplicate information o The need for clarifications by utility owners
This effort shall also include coordination with PG&E and other local stakeholders (as deemed useful by the Town) to obtain information about existing utility installation.
Mapping existing utilities based on the drawings would occur as part of the Survey Field Investigations.
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2.2.3.3 TASK 3.3 – FIELD INVESTIGATION PLANS
Prior to conducting any field investigations and mobilizing any subconsultants specializing in the work below, the Design-Builder shall submit Field Investigation Plans for the Town and its Owner Representative review and acceptance. The Field Investigation Plans shall include, but not limited be to, the following information:
• Outline and schedule of proposed field investigation
• Planned field inspection methods, testing methods, and procedures, including identification of proposed boring locations and depths, testing, analyses, and recommendations that will be developed
• Governmental Approvals required and approvals required from other third parties • Public outreach plan recommendations for any work planned in the Town or within effected stakeholder communities
• Town and its Owner Representative staff support needed during field investigations • Scope and budget for any subconsultants not currently part of the Design-Builder’s “PDB Basis of Design Services Fee” described in Attachment B (Pricing Information Forms) The fee associated with this task assumes the development of the following Field Investigation Plans:
• Survey Field Investigation Plan.
• Geotechnical and Environmental Hazards Field Investigation Plan • Potholing Plan
The Design-Builder shall submit each Draft Field Investigation Plan for Town and its Owner Representative review, prior to facilitating the review of each during a regularly scheduled progress meeting. The Design-Builder shall prepare Final Field Investigation Plans that incorporate changes based on the Town and its Owner Representative feedback.
2.2.3.4 [TASK 3.4 – EARLY-PHASE FIELD INVESTIGATIONS ALLOWANCE] [An allowance of $[__________] is included herein for use by the Design-Builder for early-phase field investigation efforts needed to expedite the development of the BODR and related predesign efforts (including, but not limited to, geotechnical borings at the various trenchless crossings and in Town). This task includes the preparation of a Geotechnical Data Report, summarizing methodology and key findings from the early phase borings. The Design-Builder shall request the use of Task 3.4 allowance funds before initiation of related efforts (receipt of email approval from the Town or its Owner Representative shall suffice as NTP for associated effort).]
2.2.3.5 TASK 3.5 – SCOPING FOR PHASE 1 FIELD INVESTIGATIONS The Design-Builder shall meet with the Town and its Owner Representative upon completion of each Task 3.3 field investigation plan to discuss scope, schedule, and fee for additional field efforts recommended for incorporation into the BODR. The Design-Builder shall prepare amendments for additional services associated with (1) survey field investigations, (2) geotechnical and environmental hazards field investigation, and (3) identified potholing efforts that might contribute to efficiencies in the BODR development based on Town feedback received during the scoping sessions and any stakeholder interests identified during earlier Task 3 efforts.
An amendment for these additional field investigations shall be negotiated with the Town and its Owner Representative before initiation of associated effort. 491
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2.2.3.6 TASK 3 – DELIVERABLES
• Desktop Geotechnical and Environmental Hazards Study - Draft and Final • Survey Field Investigation Plan - Draft and Final
• Geotechnical and Environmental Hazards Field Investigation Plan - Draft and Final • Potholing Plan - Draft and Final
• Geotechnical Data Report (per Task 3.4 allowance) - Draft and Final
2.2.3.7 TASK 3 – ASSUMPTIONS
• Access to Town GIS databases will be provided.
• PG&E’s LiDAR data will be provided by the Town.
• Fee negotiations for Task 3.4 will be completed during regularly scheduled progress meetings and the Town will expedite release of amendments for the work (one for survey field investigation efforts, and one for geotechnical and environmental hazards field work). • Electronic deliverables.
• The Town or its Owner Representative will provide a consolidated set of comments on all draft deliverables via Bluebeam Studio review session (or similar, as mutually agreed by all participants).
• Existing utility owners will provide existing utility records without a fee. Some utility owners require the existing utility request be signed by a representative of a public agency. In this case, we assume the Design-Builder will draft the letter for the Town to sign and send to the existing utility owner.
• Geotechnical Baseline Report (the “GBR”) will be completed in a future phase.
2.2.4 TASK 4 – HYDRAULIC MODEL DEVELOPMENT AND ANALYSIS Sewer flowrates for the system will vary over time. The hydraulics associated with the Core Collection System and Export Pipeline will be reliant on alignments which are reliant on existing geologic conditions and locations of existing utilities. The work associated with this Task is intended to meet the following objectives:
• Document sewer flowrates over time
• Analyze pipeline and pumping hydraulics based on the realities of geologic conditions and locations of existing utilities
• Confirm the optimum pipe, pump, WPCP Connection, and other associated design criteria for use in the Basis of Design Report
2.2.4.1 TASK 4.1 - HYDRAULIC MODEL
The Design-Builder shall develop a sewer system hydraulic model of the Core Collection System and Export Pipeline. This includes the development of phased sewer system flow estimates, which shall be developed based on the Town’s General Plan, Housing Element, and input from Town or its Owner Representative staff. Average dry weather flow (ADWF) and peak wet weather flow (PWWF) estimates shall be developed for up to three flow conditions, which could include the following:
• Initial (Near-Term) ADWF and PWWF Conditions
• Core Collection System ADWF and PWWF Conditions
• Extended Collection System ADWF and PWWF Conditions
Following completion of the flow estimates, a hydraulic model shall be developed for the Core Collection System and Export Pipeline in a software package agreed upon by the Town and Carollo. The hydraulics associated with the Core Collection System and Export Pipeline shall be 492
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analyzed based alignments which are reliant on existing geologic conditions and locations of existing utilities. As part of the hydraulic modeling, up to four alternative alignments shall be considered for the Core Collection System and Export Pipeline to confirm the optimum pipe alignment and sizing, pump station location and sizing, WPCP Connection, and other associated design criteria for use in the Basis of Design Report. The hydraulic modeling results including phased sewer flow estimates and hydraulic modeling results shall be generated for use in the Basis of Design Report.
2.2.4.2 TASK 4.2 - HYDRAULIC MODEL DOCUMENTATION
The Design-Builder shall summarize the methodology and findings of the hydraulic modeling efforts in a short technical memorandum (TM). The Hydraulic Model TM shall be submitted to the Town and its Owner Representative in draft form for review at the Hydraulic Model Review Meeting. Comments from the Town and its Owner Representative shall be incorporated into a final version of the TM, which shall be included as an attachment to the BODR.
2.2.4.3 TASK 4.3 - HYDRAULIC MODEL REVIEW MEETING
The Design-Builder shall schedule and facilitate a review workshop (in-person, up to four (4) hours) with the Town and its Owner Representative to present and summarize the draft findings of the hydraulic modeling effort and collect feedback from the Town and its Owner Representative. Up to six (6) Design-Builder staff shall participate.
2.2.4.4 TASK 4 – DELIVERABLES
• Hydraulic Model – format as recommended by Design Builder • Hydraulic Model TM
• Workshop agenda and minutes
2.2.4.5 TASK 4 – ASSUMPTIONS
• Electronic deliverables.
• Model calibration based on industry standard of care. • Town will provide land use plan for core collection system and extended collection system.
2.2.5 TASK 5 – BASIS OF DESIGN REPORT (THE “BODR”)
2.2.5.1 TASK 5.1 - IDENTIFICATION OF PROPERTY ACQUISITION AND RIGHT-OF-WAY
NEEDS WORKSHOP
The Design-Builder shall schedule and facilitate a review workshop (in-person, up to four (4) hours) with the Town and its Owner Representative to discuss property acquisition and right-ofway needs and to collaborate action items and schedule for accomplishing related work.
2.2.5.2 TASK 5.2 - LATERAL CONNECTION STRATEGY SESSION
The Design-Builder shall schedule and facilitate a review workshop (in-person, up to four (4) hours) with the Town and its Owner Representative to discuss alternatives for the collection system lateral connections and collect feedback from the Town and its Owner Representative for the draft BODR.
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2.2.5.3 TASK 5.3 - COLLECTION SYSTEM OPERATIONS WORKSHOP The Design-Builder shall schedule and facilitate a review workshop (in-person, up to four (4) hours) with the Town and its Owner Representative to discuss opportunities/limitations related to various collection system operational/design strategies and collect feedback from the Town and its Owner Representative for the draft BODR.
2.2.5.4 TASK 5.4 - EXPORT PIPELINE/CHICO WPCP CONNECTION OPERATIONS
WORKSHOP
The Design-Builder shall schedule and facilitate a review workshop (in-person, up to four (4) hours) with the Town, and its Owner Representative, the City of Chico, and Butte County to discuss opportunities/limitations related to differing export pipeline and Chico WPCP connection operational/design strategies and collect feedback from the Town and its Owner Representative for the draft BODR. The Design-Builder shall schedule and facilitate a separate, subsequent follow-up meeting with the City of Chico and Butte County (in-person, up to two (2) hours), as needed to clarify the strategies discussed in the original review workshop.
2.2.5.5 TASK 5.5 - SCADA STRATEGY WORKSHOP
The Design-Builder shall schedule and facilitate a review workshop (in-person, up to four (4) hours) with the Town and its Owner Representative to discuss supervisory control and data acquisition (the “SCADA”) options for the overall project.
2.2.5.6 TASK 5.6 - PERMITTING, FUNDING, AND STAKEHOLDER/PUBLIC OUTREACH
STRATEGY WORKSHOP
The Design-Builder shall schedule and facilitate a review workshop (in-person, up to four (4) hours) with the Town and its Owner Representative to discuss permitting, funding, and stakeholder/public outreach coordination needs and to collaborate action items and schedule for accomplishing related work.
2.2.5.7 TASK 5.7 - DRAFT BASIS OF DESIGN REPORT
The Design-Builder shall prepare and deliver a draft and final Basis of Design Report (the “BODR”) that summarizes the information from Task 2 (Reference Document Review and Validation), Task 3 (Field Investigations) and Task 4 (Hydraulic Model Development and Analysis), as well as feedback/findings from workshops included in Task 5, and provides the basis to finalize design and construction of the Core Collection System, Export Pipeline and WPCP Connection. At a minimum, the BODR shall include the following:
• Project Summary, Goals/Objectives, and Requirements
• Design Criteria
• Design Standards
• Pipeline Alignment
• WPCP Connection Details
• Core Collection System Final Lateral Connection Alternatives Analysis and Recommendations
• Sewer System Operations and Maintenance Alternatives Analysis and Recommendations Design-Builder shall facilitate review of the draft BODR in the most efficient manner for the Town. Account for a period of fourteen (14) calendar days for Town and its Owner Representative review of the draft BODR submittal.
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2.2.5.8 TASK 5.8 - DRAFT BASIS OF DESIGN REVIEW MEETINGS The Design-Builder shall schedule and facilitate up to two (2), 4-hour review meetings with the Town and its Owner Representative to present and summarize the BODR and address comments received from the Town and its Owner Representative.
2.2.5.9 TASK 5.9 - FINAL BASIS OF DESIGN REPORT
The Design-Builder shall revise the BODR in response to the Town and its Owner Representative comments, as appropriate, and furnish the final BODR in a format acceptable to the Town within fourteen (14) calendar days of receipt of the Town and its Owner Representative comments.
The Town shall notify the Design-Builder of its acceptance of the final BODR. The final BODR, in conjunction with the deliverables associated with the deliverables from Tasks 6-10 will serve as the basis for the next phase of the Project.
2.2.5.10 TASK 5 – DELIVERABLES
• Workshop agendas and minutes
• Basis of Design Report - Draft and Final
• Basis of Design Review Meeting Agendas and Notes - Draft and Final
2.2.5.11 TASK 5 – ASSUMPTIONS
• Electronic deliverables.
• The Town or its Owner Representative will provide a consolidated set of comments on the Draft Basis of Design Report via BlueBeam Studio review session (or similar, as mutually agreed by all participants).
• Review meeting(s) participation from up to eight (8) Design-Builder key management staff.
2.2.6 TASK 6 – FUNDING SUPPORT
The Project’s funding comes through various grants. The Design-Builder shall be required to support the Town and its Owner Representative in responding to funding questions from funding entities. The Design-Builder should assume up to twenty (20) hours per month over the duration of the Design-Builder’s proposed Phase 1a Preliminary Services Schedule in response to questions related to overall Project cost and schedule. The Design-Builder shall receive questions from the Town and/or its Owner Representative and shall provide responses back to the Town and/or its Owner Representative.
2.2.6.1 TASK 6 – DELIVERABLES
• Response to questions (as required)
2.2.6.2 TASK 6 – ASSUMPTIONS
• Electronic deliverables.
2.2.7 TASK 7 – PERMITTING SUPPORT
The Town’s Owner Representative is responsible for obtaining environmental permits associated with the Project on behalf of the Town. The Design-Builder shall be required to support creation of a detailed Project Permit Matrix that identifies anticipated permits, approvals, and consultations required for the Project, as well as the respective responsibilities of the Town, its 495
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Owner Representative and the Design-Builder in obtaining the required permits and approvals shall be provided. The Town’s Owner Representative shall be responsible for maintaining the Project Permit Matrix at least until construction Notice to Proceed – maintenance of the Project Permit Matrix may transition to the Design-Builder during construction.
2.2.7.1 TASK 7 – DELIVERABLES
• Project Permit Matrix updates (as required)
2.2.7.2 TASK 7 – ASSUMPTIONS
• Electronic deliverables.
2.2.8 TASK 8 – STAKEHOLDER AND PUBLIC OUTREACH SUPPORT
2.2.8.1 TASK 8.1 – DESIGN-BUILDER’S SUPPORT OF PUBLIC OUTREACH ACTIVITIES The Town’s Owner Representative in conjunction with the Town is responsible for public outreach activities throughout the life of the Project. As a part of the Task 1 “Team Building and Project Chartering Workshop”, the Design-Builder shall be provided the Project’s Public Outreach Plan and with the Town and its Owner Representative, shall confirm the Design-Builder’s support of public outreach activities for use in the Task 1 “Phase 1b Review Meetings”.
2.2.8.2 [TASK 8.2 – ALLOWANCE FOR PARTICIPATION/SUPPORT AT TOWN COUNCIL MEETINGS]
[The Design-Builder shall support the Town and its Owner Representative with Town Council updates and other public communications, as requested by the Town or its Owner Representative. An allowance of $[__________] is included for this support, to be billed by the Design-Builder with receipt of email confirmation from the Town or its Owner Representative that associated services are approved.]
2.2.8.3 TASK 8 – DELIVERABLES
• Design-Builder Public Outreach support responsibilities – Draft and Final
2.2.8.4 TASK 8 – ASSUMPTIONS
• Electronic deliverables.
2.2.9 TASK 9 – DESIGN AND CONSTRUCTION PHASING PLAN AND SCHEDULE
2.2.9.1 TASK 9.1 - DRAFT DESIGN AND CONSTRUCTION PHASING PLAN AND
SCHEDULE
The Design-Builder shall schedule a four (4) hour in -person meeting with the Town and its Owner Representative to strategize breaking down the project into design and build segments.
This shall incorporate the limitations/capabilities of designing the systems, permitting, obtaining rights of way, constructability, and perhaps funding mechanisms. The goal is to have a plan that promotes efficiency in the design process and facilitates construction productivity while maximizing opportunities for early and/or late work packages if necessary.
The Design-Builder shall schedule a meeting with the Town and its Owner Representative scheduler to develop a draft schedule WBS activities. Upon agreement of the schedule WBS 496
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activities, and after the initial cost model (draft estimate) has been submitted with a cost-loaded schedule shall be developed through testing and commissioning of the Project. This schedule shall be based on the information provided in the technical reference documents and information provided by the SOQ.
No later than thirty (30) calendar days after completion of the BODR, the Design-Builder shall submit an updated draft Design and Construction Phasing Plan and Schedule that includes all activities through the completion of testing, commissioning and start-up of the Project.
The Design-Builder shall facilitate review of the draft Design and Construction Phasing Plan and Schedule in the most efficient manner for the Town. Account for a period of fourteen (14) calendar days for Town and its Owner’s Representative review of the draft Design and Construction Phasing Plan and Schedule.
2.2.9.2 TASK 9.2 - DRAFT DESIGN AND CONSTRUCTION PHASING PLAN AND
SCHEDULE REVIEW MEETINGS
The Design-Builder shall schedule with the Town and its Owner Representative the following meetings.
• One (1) two-hour meeting to develop the schedule WBS
• Up to three (3) two-hour meetings to review draft schedules and updates • Up to two (2) four-hour meetings to review cost loaded schedules
2.2.9.3 TASK 9.3 - REVISED DESIGN AND CONSTRUCTION PHASING PLAN AND
SCHEDULE
The Design-Builder shall revise the draft Design and Construction Phasing Plan and Schedule in response to the Town and its Owner Representative comments, as appropriate, for use in the Task 1 “Phase 1b Review Meetings”.
2.2.9.4 TASK 9 – DELIVERABLES
• Draft WBS Schedule Structure
• Draft Cost-Loaded Schedule Based on SOQ Reference Documents - Due May 17, 2024 • Design and Construction Phasing Plan and Schedule – Draft and Final
2.2.9.5 TASK 9 – ASSUMPTIONS
• WBS activity meeting will be virtual.
• Electronic deliverables.
• Initial Schedule will be based off of SOQ Reference Documents. • The Schedule will be updated to reflect the BODR once complete.
2.2.10 TASK 10 – COST MODEL
2.2.10.1 TASK 10.1 - DRAFT BASELINE COST MODEL TEMPLATE The Design-Builder shall meet with the Town’s Owner Representative and develop an agreed upon cost model (estimate) template for the work through design, construction, and startup.
Once an agreed upon template is developed, the Design-Builder shall produce an estimate based on the SOQ Reference Documents and using current market rates for labor, equipment, and materials. Upon completion of the estimate, the Design-Builder shall review it with the Town 497
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and its Owner Representative and compare it with the Town’s current schedule of costs for the Design and Construction portions of the project. The estimate will then be used to provide a cost-loaded schedule as described in Task 9.
After completion of the BODR, the estimate shall be updated and reviewed with the Town. The final Phase 1a estimate shall be incorporated into an updated Schedule and Phasing Plan for Design and Construction.
2.2.10.2 TASK 10.2 - DRAFT BASELINE COST MODEL REVIEW MEETINGS The Design-Builder shall schedule and facilitate one (1) two-hour meeting to review the estimate template and up to two (2), four-hour review meetings with the Town to compare the Town’s Owner Representative’s initial Design and Construction Estimate with the Design-Builder’s estimate.
The Design-Builder shall facilitate review of the Baseline Cost Model in the most efficient manner for the Town. Account for a period of fourteen (14) calendar days for Town and its Owner Representative review of the Baseline Cost Model.
The Design-Builder shall schedule and facilitate up to two (2), 4-hour review meetings with the Town and its Owner Representative to present and summarize the draft Baseline Cost Model and address comments received from the Town and its Owner Representative. Review meetings may be in conjunction with the review meetings for the Task 9 “draft Design and Construction Phasing Plan and Schedule”.
2.2.10.3 TASK 10.3 - FINAL BASELINE COST MODEL
The Design-Builder shall revise the draft Baseline Cost Model in response to the Town and its Owner Representative comments, as appropriate, for use in the Task 1 “Phase 1b Review Meetings”.
2.2.10.4 TASK 10 – DELIVERABLES
• Initial Cost Model using SOQ Reference Documents and current market prices. • Baseline Cost Model – Draft and Final
2.2.10.5 TASK 10 – ASSUMPTIONS
• Initial two (2) hour meeting will be virtual or scheduled on the same day as other inperson meetings. • Electronic PDF copies will be made available to the Town and its Owner Representative on a secure site provided by the Design Builder for review.
2.2.11 TASK 11 – ADDITIONAL PHASE 1A BASE PRELIMINARY SERVICES The Town and the Design-Builder anticipate that additional Phase 1a Base Preliminary Services may be needed to progress the Project. The Town may request the Design-Builder perform additional Phase 1a Base Preliminary Services for which the Design-Builder shall be compensated on a negotiated basis from the allowance described below. Additional Phase 1a Base Preliminary Services may include but are not limited to the following:
• Additional field investigations and environmental evaluations. • Additional alignment alternatives.
• Other unanticipated work identified by the Town.
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• Outreach to local business, labor sources, and community education.
An allowance of $[__________] is included herein for use by the Design-Builder for Task 11 work effort and deliverables. The Design-Builder shall request the use of Task 11 allowance funds before initiation of related efforts (receipt of email approval from the Town or its Owner Representative shall suffice as NTP for associated effort).
2.2.12 TASK 11 – DELIVERABLES
• To be subsequently determined.
2.2.13 TASK 11 – ASSUMPTIONS
• The Town shall approve all additional services prior to notice to proceed for this task.
2.3. PHASE 1A ADDITIONAL PRELIMINARY SERVICES
As provided in Section 5.2.B (Additional Preliminary Services) of this Design-Build Contract, the Town may request that the Design-Builder perform potential Phase 1a Additional Preliminary Services, for which the Design-Builder shall be compensated on a negotiated basis. The DesignBuilder shall provide Phase 1a Additional Preliminary Services as requested by the Town. These may include but are not limited to the following:
• Additional field investigations and environmental evaluations. • Additional alignment alternatives.
• Other unanticipated work identified by the Town.
• Outreach to local business, labor sources, and community education.
Deliverables for any Phase 1a Additional Preliminary Services shall be negotiated by the Town and the Design-Builder.
2.4. PHASE 1A PRELIMINARY SERVICES SCHEDULE
The Phase 1a Preliminary Services Schedule is included as Attachment 2B-1.
2.5. PHASE 1A PRELIMINARY SERVICES COMPENSATION
2.5.1 COMPENSATION FOR PHASE 1A BASE PRELIMINARY SERVICES The Town shall pay the Design-Builder for Phase 1a Base Preliminary Services direct costs for labor and expenses based on all inclusive hourly labor rates documented in Attachment 2D-1, up to a not-to-exceed limit of $3,500,000, as documented in Attachment 2D-1, plus a not-toexceed amount of $4,100,000 of allowance for Task 11. Allowance funds shall not be used by Design-Builder except with specific written approval by the Town. Attachment 2C-1 is a breakdown by task of the not-to-exceed amount. Use of any funds for Task 11 requires Town approval. Work on Task 11 shall be billed at the rates shown in Attachment 2D-1.
2.5.2 PAYMENT REQUESTS
The Design-Builder shall request monthly progress payments for direct labor and expense costs incurred. All billings and requests for progress payments shall require a written invoice from the Design-Builder in a form acceptable to the Town, including itemization of labor and expenses by task. The Design-Builder shall submit all billings with appropriate summaries of work progress, 499
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after which the Town shall make payment at the earliest practicable time, but not later than 45 days following receipt of a proper payment request. To the extent that prevailing wages apply to any Preliminary Services so invoiced, the Design-Builder shall provide certified payrolls with respect to any such Preliminary Services so invoiced.
2.5.3 COMPENSATION FOR PHASE 1A ADDITIONAL PRELIMINARY SERVICES In the event the Town elects to request any Phase 1a Additional Preliminary Services, compensation for such Phase 1a Additional Preliminary Services shall be negotiated by the Town and the Design-Builder in accordance with Section 9.1(B) (Compensation for Phase 1a Additional Preliminary Services) of the Design-Build Contract, and shall be billed using the rates set forth in Attachment 2D-1.
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ATTACHMENT 2A
PLANNED SURVEY EXTENTS
[Note: To be developed.]
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ATTACHMENT 2B
PRELIMINARY SERVICES SCHEDULE
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ATTACHMENT 2B-1
PHASE 1A PRELIMINARY SERVICES SCHEDULE
[See attached pages]
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ATTACHMENT 2B-2
PHASE 1B PRELIMINARY SERVICES SCHEDULE
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ATTACHMENT 2C
PRELIMINARY SERVICES NOT-TO-EXCEED PRICING
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ATTACHMENT 2C-1
PHASE 1A PRELIMINARY SERVICES NOT-TO-EXCEED PRICING
[See attached pages]
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ATTACHMENT 2C-2
PHASE 1B PRELIMINARY SERVICES NOT-TO-EXCEED PRICING
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ATTACHMENT 2D
PRELIMINARY SERVICES BILLING RATES
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ATTACHMENT 2D-1
PHASE 1A PRELIMINARY SERVICES BILLING RATES
[See attached pages]
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ATTACHMENT 2D-2
PHASE 1B PRELIMINARY SERVICES BILLING RATES
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APPENDIX 3
GOVERNMENTAL AND NON-GOVERNMENTAL APPROVALS
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APPENDIX 3
GOVERNMENTAL AND NON-GOVERNMENTAL APPROVALS
[Note: To be developed.]
3.1. PURPOSE
The purpose of this Appendix is to identify the Governmental and Non-Governmental Approvals that are expected to be required to proceed to the Design-Build Period of the Project. (Tables A3.1 and A-3.2).
The Design-Builder shall be responsible for obtaining and maintaining any Governmental and Non-Governmental Approvals that are not explicitly identified as a Town responsibility, irrespective of whether any such Governmental or Non-Governmental Approval is identified in this Appendix.
3.2. GOVERNMENT AND NON-GOVERNMENTAL APPROVALS
Tables A3-1 and A3-2 indicate the responsibilities of the Design-Builder and the Town with respect to Governmental and Non-Governmental Approvals, respectively. 512
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Table A3-1. Governmental Approvals Responsibility
Name of
Governmental
Approval
Issuing
Agency
Permittee
/Approval
Holder
Application
Manager
Responsibility for Obtaining / Supporting
Permit Application Process
Fee Payment
Responsibility
(1) Payment for review time by permitting entity above and beyond that covered by permit fees will be paid by the Town. 513
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Table A3-2. Non-Governmental Approvals Responsibility
Name of
Governmental
Approval
Issuing
Agency
Permittee
/Approval
Holder
Application
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APPENDIX 4
TECHNICAL STANDARDS AND BASELINE DESIGN DOCUMENTS
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APPENDIX 4
TECHNICAL STANDARDS AND BASELINE DESIGN DOCUMENTS
4.1. TECHNICAL STANDARDS
Table A4-1 sets forth certain minimum technical standards applicable to design and testing for the Project. The list of technical standards will be expanded as part of the GMP Amendment to include all applicable codes, standards and technical requirements identified by the DesignBuilder in its Basis of Design Report and GMP Submittal Design Level Baseline Design Documents.
Table A4-1. Technical Standards
Applicable local seismic requirements
Federal, state, and local regulations
4.2. BASELINE DESIGN DOCUMENTS
[Note: To be included with the GMP Amendment and will include GMP Submittal Design Level drawings and specifications.]
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APPENDIX 5
GENERAL DESIGN-BUILD WORK REQUIREMENTS
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APPENDIX 5
GENERAL DESIGN-BUILD WORK REQUIREMENTS
5.1. PURPOSE
The purpose of this Appendix is to set forth certain requirements for the performance of the Design-Build Work. The Design-Builder shall perform the Design-Build Work in accordance with the Contract Standards, including the requirements set forth in this Appendix.
5.2. MANAGEMENT AND COORDINATION
As needed, the Design-Builder shall hold meetings that are separate from and in addition to weekly Construction progress meetings described in Section 5.4.2 of this Appendix, and shall prepare correspondence and make any other arrangements as necessary to coordinate the Design-Build Work. The Design-Builder shall coordinate its activities with other contractors performing work at or near the Project Sites. The Design-Builder shall identify other construction contracts that may be in progress in close proximity to or bordering on the Project. The DesignBuilder shall coordinate all Construction activities that could impact existing Utility services and installations (e.g., conduits, pipelines, transmission mains and other Utility equipment and appurtenances) with the Utilities, and shall coordinate, arrange for and/or implement any required utility relocations with the applicable utility, consistent with its Utility Relocation Plan.
Coordination meetings may include review of the Design-Build Period Work Schedule and installation procedures of other contractors to identify potential conflicts, allocation of space on the Project Sites, drawing/design interchange among contractors, establishment and modification of schedules and sequences of Construction operations, and planning of future meetings.
5.3. DESIGN-BUILD PERIOD WORK SCHEDULE
5.3.1 Design-Build Period Work Schedule.
All activities comprising the Design-Build Work shall be scheduled and monitored by use of Microsoft Project or Primavera software which sets forth all tasks and key Tasks in a logical and efficient work sequence that the Design-Builder intends to utilize to plan, organize and execute design and Construction work in taking the Project from the Baseline Design Documents to Final Completion and Town operation, to record and report actual performance and progress, to show plans to complete all remaining activities as of the end of each progress report period, and to enable Town and the Owner Representative to monitor and evaluate work progress. If Primavera is used, the Design-Builder shall provide schedule information to the Town in both native and PDF format as directed by the Town.
The Design-Build Period Work Schedule shall be in the form of an activity oriented network diagram (Critical Path Method) and the principles and definitions of the terms used herein shall be as set forth in the Associated General Contractors of America (AGC) publication The Use of CPM in Construction, 1976. In the event of discrepancies, this Appendix shall govern the development and utilization of the Design-Build Period Work Schedule.
The Design-Build Period Work Schedule shall be comprised of the cost and resource loaded Detailed Network Diagram and reports described herein. The Design-Build Period Work Schedule shall show the sequence and interdependence of activities required for complete performance of all the work including design development, procurement, Construction, Substantial Completion and Final Completion. The Design-Build Period Work Schedule shall begin with the Contract Date, include milestones representing release of design packages for 519
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Construction, include the Interim Construction Milestones, include milestones representing completion of Substantial Completion and conclude with a milestone representing Final Completion, in addition to any control milestones provided by the Town. [Note: Other milestones may be added based on Construction Phasing Plan and as part of GMP Amendment.] The Design-Build Period Work Schedule shall be initially prepared and updated in accordance with Appendix 2 and further updated as required in accordance with this Appendix. The DesignBuilder shall undertake and complete the Design-Build Work in accordance with the DesignBuild Period Work Schedule. The Design-Builder shall develop, revise and provide all information and input necessary for the Design-Build Period Work Schedule required pursuant to this Appendix in accordance with the Contract Standards. The planning, scheduling, coordination and execution of the Design-Build Work are the sole responsibility of the DesignBuilder. The Scheduled Substantial Completion Date and the date for Final Completion shall not be changed in any updates without written permission from the Town in accordance with the Contract Documents.
5.3.2 Detailed Network Diagram
The Design-Build Period Work Schedule shall include a time-scaled “Detailed Network Diagram” based on calendar days. The Detailed Network Diagram shall be in Critical Path Method (the “CPM”) precedence format and shall show the sequence and interdependence of activities required for complete performance of all items of work. A calendar shall be shown on all sheets along the entire sheet length. Each activity shall be plotted so that the beginning (and completion dates) of the activity can be determined graphically (by comparison) with the calendar scale.
The Detailed Network Diagram shall provide sufficient detail and clarity of form and technique so that the Design-Builder can plan, schedule, and control the Design-Build Work properly and the Town and the Owner Representative can readily monitor and follow progress for all portions of the Design-Build Work. The Detailed Network Diagram shall include all activities of the Design-Build Work. Critical path activities shall be identified, including critical paths for milestone dates.
The Detailed Network Diagram shall include the following information related to the activities:
• Activity number.
• Activity Description.
• Estimated duration in working days.
• Major materials and equipment acquisition and arrivals/departures at/from the Project.
The degree of detail of the Detailed Network Diagram shall consider the following factors:
• Normal weather delays per season that would delay or affect the work plan using identified schedule buffer activities in the logic chain to the next control milestone in the logic chain
• The type of work to be performed and the labor trades involved. • All delivery activities for all major materials and equipment. • A schedule for all submittals requiring outside or design Subcontractor approval, including allowed review response time, and logic linked to start of appropriate work items so that any resubmittal requirements shall adjust the start or ordering of the consequential work item(s)
• Submittal and approval of shop and working drawings and material samples. 520
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• Efforts and activities for all Subcontract work by discrete Subcontractor. • Access and availability to work areas.
• Test, submissions, and acceptance of test results.
Seasonal weather conditions shall be considered and included in the planning and scheduling of all work influenced by high or low ambient temperatures and/or precipitation to complete all Design-Build Work by the Final Completion date. Seasonal weather conditions shall be determined by an assessment of average historical climatic conditions based upon the preceding ten year records published for the locality by the National Ocean and Atmospheric Administration based on the Chico Army Flying School reporting station.
The Design-Builder may use labor or equipment restraints separately noted to optimize and level labor and equipment requirements. The individual activities involved may be sequenced within the limits of total float to the next control milestone in the logic chain. When this technique is used in establishing the working schedule, it shall be reflected in the logic. Critical or nearcritical paths developed from the use of labor restraints shall be kept to a minimum. Nearcritical paths shall be defined as those paths having 14 calendar days or less of total float at time of initial submission.
The Design-Build Period Work Schedule (and any updates thereto) shall be submitted to the Town in hardcopy, pdf and native format.
5.3.3 Design-Build Period Work Schedule Updates.
The Design-Builder shall, as required from time to time during the Design-Build Period, but no less than once per calendar month, in consultation with the Town update the Design-Build Period Work Schedule so that it is at all times an accurate, reasonable and realistic representation of the Design-Builder's plans for the completion of the Design-Build Work in accordance with the requirements of the Contract Documents. The Design-Builder shall submit schedule updates (in hard copy, pdf and native format) to the Town 3 business days in advance of the first progress meeting of each month. Each schedule update shall include the following elements:
(a) A complete updated CPM schedule showing progress against each activity; (b) a four week look ahead schedule and a present to complete summary schedule and a Construction activity status report to include current and forecasted status of each Construction activity and submittal event in WBS start sort order; and (c) status for any weather schedule buffers shall be made on the number of observed and recorded weather delays that occurred to date for the schedule buffer timespan, which must be verifiable against the daily field reports for each work segment.
The updates shall include adjustments resulting from Uncontrollable Circumstances and Baseline Design Requirements Changes, if any, as permitted by this Design-Build Contract and as provided in Section 5.3.5 of this Appendix.
Should any negative float items appear, the Design-Builder shall provide specific explanation of the causes of each and proposed remedies.
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5.3.4 Town Review.
The Town shall review the updated Design-Build Period Work Schedule and advise the DesignBuilder as to any of its concerns, along with proposed changes. Every three months, or more frequently if requested by the Town, in addition to the weekly Construction progress meetings, the Design-Builder shall meet with the Town to discuss Project progress and the updated DesignBuild Period Work Schedule. The Design-Builder shall respond to the Town concerns and indicate how the proposed changes or revisions thereto can be made to satisfactorily address Town concerns. Upon Town approval, the changes shall be incorporated in the updated DesignBuild Period Work Schedule and replace the previous baseline Design-Build Period Work Schedule. Design-Build Period Work Schedule updates are for the purpose of providing the Design-Builder with flexibility in its work activity durations and sequences, but in no event shall such updates result in a change in the Scheduled Substantial Completion Date or the date for Final Completion. The Scheduled Substantial Completion Date shall be adjusted solely as provided in Sections 8.4 and 8.10, respectively, of this Design-Build Contract.
5.3.5 Events Affecting the Design-Build Period Work Schedule.
No later than 15 days following the occurrence of an Uncontrollable Circumstance or a Towndirected Change Order, or delays are experienced that may impact the critical path, the DesignBuilder shall submit a report containing a “Time Impact Analysis” illustrating the effects of such events on the current Design-Build Period Work Schedule, including any new dates for work task and major Tasks, Interim Construction Milestones, Substantial Completion, the Scheduled Substantial Completion Date or the date for Final Completion. Additionally, the analysis shall demonstrate the time impact based on the date that the Design-Builder was notified of the authorization of the change or the date that the delay began, the status of Construction at that point in time, and the event time computation of all affected activities. The Design-Builder shall present mitigation measures that were considered to offset potential work delays; those proposed for Town review and acceptance; and a revised Design-Build Period Work Schedule incorporating the Design-Builder’s proposed changes.
The event items used in the analysis shall be those included in the latest updated copy of the detailed progress schedule. In cases in which the Design-Builder does not submit a Time Impact Analysis for a specific change within the time requirements established under this Section 5.3.5, then it is mutually agreed that that particular potential revision or delay has no time impact on any of the scheduled completion dates and the Project’s critical path and no time extension will be granted.
5.4. CONSTRUCTION MEETINGS AND REPORTS
5.4.1 Pre-Construction and Partnering Conferences.
Consistent with its Town Approved Design and Construction Phasing Plan, the Design-Builder shall hold a pre-Construction conference prior to commencement of each Construction work package. Additionally, the Design-Builder shall hold Partnering conferences at intervals agreed to by the Town. The Design-Builder shall prepare an agenda which shall be reviewed with the Town prior to each conference, and shall preside at each conference, contributing appropriate items for discussion, providing any data requested, recording minutes to summarize significant proceedings and decisions, and distributing the minutes to all parties in attendance.
Each conference shall be scheduled by the Design-Builder at a time reasonably acceptable to the Town and shall be attended by the Project Manager (Project Manager), the Design-Builder’s Construction Manager, the Design-Builder’s Construction Superintendent, and the DesignBuilder’s principal Subcontractors’ project managers or superintendents and representatives of 522
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major suppliers as the Design-Builder deems appropriate. Other attendees may be added at the discretion of the Design-Builder and the Town.
5.4.2 Construction Progress Meetings - Scheduling and Attendance.
The Design-Builder shall schedule, hold, and facilitate regular weekly Construction progress meetings from the time mobilization for Construction commences through Final Completion, and at other times if requested by the Town or as the Design-Builder deems necessary. The Construction progress meetings shall be attended by the Design-Builder Construction Manager, the Design-Builder Superintendent, the QA/QC Manager, as applicable, and the DesignBuilder’s principal Subcontractors’ project managers or superintendents and representatives of major Suppliers, as the Design-Builder deems appropriate. The Project Manager shall attend weekly Construction progress meetings, and the representatives from the Design-Builder’s executive team shall attend weekly Construction progress meetings periodically as requested by the Town. Other attendees may include any other contractors whose work affects or is affected by Construction of the Project, and others deemed appropriate by these parties. The Town and the Owner Representative shall attend the weekly Construction progress meetings and monthly management meetings. Construction progress meetings shall be held at a location designated by the Town.
5.4.3 Construction Progress Meetings Agenda.
At such weekly meetings, discussions shall be held concerning all aspects of the Design-Build Work. The Design-Builder shall prepare an agenda, preside at meetings, record minutes to include significant proceedings and decisions, and distribute the minutes to all parties in attendance within three Business Days of the meeting. The agenda shall generally include the status of the following matters, as applicable:
(a) Summary of previous meeting issues, actions and assignments. (b) Progress since last meeting (Design-Builder and Subcontractors). (c) Schedules, including updates on planned progress for next four weeks, off-site fabrication and delivery schedules; corrective action measures, if required and when to be implemented.
(d) Problems, issues and considerations.
(e) Change Orders, Contract Administration Memoranda and Contract Amendments. (f) Status of submittals, including to be submitted, submitted, responses requiring corrective actions and resubmittal and approved.
(g) Requests for Information, including those to be submitted, submitted, responses and whether adequate or more information is required.
(h) QA/QC reviews, findings, issues and actions.
(i) Coordination among parties.
(j) Safety program update, concerns, accidents, and injuries, if any. (k) Public affairs and issues or concerns of nearby businesses and other stakeholders.
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(l) Project Sites visits by the Town, the Town’s representatives, representatives of Governmental Bodies, issuers of Non-Governmental Approvals and DesignBuilder’s representatives. (m) Compliance with Governmental Approval mitigations and any environmental issues.
(n) Status of record drawings and specifications.
5.4.4 Monthly Progress Reports.
Monthly Progress Report required to be submitted by the Design-Builder shall include:
(a) a summary of Design-Build Work activities during the reporting month. (b) a schedule of upcoming Design-Build Work activities. (c) a listing of submittals delivered during the reporting month and their status; (d) a listing of submittals scheduled for delivery the following month. (e) the Design-Builder’s verification that the record documents have been updated as appropriate.
(f) a summary of activities involved with obtaining Governmental Approvals and NonGovernmental Approvals. (g) a listing of any violations of Governmental Approvals, Non-Governmental Approvals or Applicable Law and actions taken or to be taken to eliminate any subsequent violations.
(h) a listing of issues needing resolution.
(i) a listing of all telephone calls received during the reporting month involving material inquiries or complaints.
(j) Design-Build Period Work Schedule updates and Cost/Schedule Status Report (CSSR).
(k) the Design-Builder’s recovery plan for meeting the Scheduled Substantial Completion Date should the Design-Builder’s progress-to-date indicate that the Design-Builder’s Design-Build Work is behind schedule and at risk of not being completed by the Scheduled Substantial Completion Date (as adjusted for extensions of time permitted under this Design-Build Contract). (l) Expenditures for the most recently completed month and for the Project to date, and a comparison to the Anticipated Design-Build Period Work Cost Schedule; explanations for significant deviations from the Anticipated Design-Build Period Work Cost Schedule for both over-expenditures and under-expenditures. (m) Progress payment requests as described in Article 9 of this Design-Build Contract.
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the payment request to work progress on specific tasks and Tasks. Supporting documentation shall be provided so that the Town can readily determine the basis for the requested payment amounts for Design-Build Work performed during the month by task or Tasks in terms of labor hours, construction equipment costs, Capital Improvements equipment and materials expenditures, including similar breakdowns for Subcontracts and other Project costs incurred during the month unless waived by the Town. Current retainage and total retainage to date shall be included in the monthly report. Payment request information shall include similar information for changes made pursuant to Sections 6.7 and 6.8 of this DesignBuild Contract.
The Monthly Progress Reports shall also provide a description of (1) any concerns or issues raised by the Town or other parties regarding the Design-Build Work, and the Design-Builder’s approach to promptly addressing and resolving such concerns or issues, and (2) a section containing health and safety statistics and a description of any accidents or injuries that occurred and the follow up investigations as to cause and subsequent corrective actions to be taken or already implemented by the Design-Builder. The format of the Monthly Progress Reports shall be developed by the Design-Builder and approved by the Town prior to the commencement of any Construction on the Project Sites.
5.4.5 Project Records.
The Design-Builder, in connection with the Design-Build Work generally, shall maintain and provide the following records:
(a) Record Drawings and Specifications: The Design-Builder shall:
(1) throughout the Construction, update the Design Documents (with respect to the drawings, such update shall be in hard copy and “CAD” or other electronic format reasonably acceptable to the Town), including approved shop drawings that are available from Subcontractors in CAD format, so as to produce accurate and complete record documents for the Project. (2) as requested from time to time during the Construction, make available such record drawings and specifications to the Town for review to permit the Town to monitor the Design-Builder's compliance with the requirements of this Section 5.4.5.
(3) provide eight half-size and two full-sized hard copies of the completed record drawings as a condition to Final Completion. The record drawings shall not be deemed to have satisfied the condition to Final Completion unless reviewed and deemed final by the Town.
(b) Equipment and Systems Manuals: The Design-Builder shall:
(1) (1) as a condition to Final Completion, and in accordance with Sections 5.8.2 (Content of the Operations and Maintenance Manual) and
5.9 (Service Manuals) of this Appendix,, make available all operation and maintenance manuals, specifications, warranties and related information, in both written and electronic form, for all the equipment and systems that have been included in the Design-Build Work for review by the Town; and 525
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(2) organize and store such information in accordance with Section 6.6(D) of this Design-Build Contract;
(c) Design Records: The Design-Builder shall retain records of the design development.
(d) Minutes of Meetings: The Design-Builder shall retain minutes of meetings between the Town and the Design-Builder relating to the Design-Build Work, and shall circulate such minutes to the Town and the Owner Representative for review and comment.
(e) Inspection Reports and Tests Results: The Design-Builder shall retain official reports and certified test records of all inspections and tests which were undertaken as part of the Construction.
(f) Utility Plans: The Design-Builder shall retain utility plans for the Project and the Project Sites.
(g) Landscape and Irrigation Plans: The Design-Builder shall retain landscape and irrigation plans for the Project and the Project Sites. (h) Copies of all Governmental Approvals and Non-Governmental Approvals: The Design-Builder shall retain copies of all Governmental Approvals and NonGovernmental Approvals for the Construction and occupation of the Project. (i) Signed Quality Management Plan as updated for the Design-Build Period Work:
The Design-Builder shall retain a signed copy of the Quality Management Plan as updated for the Design-Build Period Work for the design and Construction and all records of the quality assurance program implemented as required by the Contract Documents.
(j) Daily field logs recording the weather at each work site throughout the day, what contractors are on site and equipment/material deliveries as well as any events such as outages, work stoppage, accidents, material/equipment loss, and property damage.
The records referred to in this Section 5.4.5 shall be retained for at least five (5) years after the latest of: (1) final payment under this Design-Build Contract; (2) final settlement of a termination for convenience under Section 12.6; (3) the final resolution of any dispute; and (4) the last of the notices from the Granting Agencies to the Town that the applicable Grant contract has been closed according to the record retention requirements at 2 CFR 200.334.
5.5. CONSTRUCTION WORK GENERALLY
5.5.1 Geotechnical Work and Subsurface Exploration
As part of the Preliminary Services, it is expected that the Design-Builder will conduct geotechnical and subsurface investigations of portions of the Project Sites and the results of these investigations will be presented in the applicable reports required pursuant to Appendix 2, including the Contamination Assessment Report and the Contaminated Media Management Plan. The Design-Builder shall conduct any additional subsurface investigations of the Project Sites as necessary in accordance with Good Engineering and Construction Practice to determine design requirements for Construction, including dewatering and foundation requirements. The Design-Builder shall employ a qualified firm to perform the subsurface investigations. The 526
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Design-Builder shall employ a professional engineer, licensed in the State, to plan, oversee, and evaluate the results of all additional subsurface investigations and to determine requirements for the design of the Project, including foundations, superstructures, and dewatering systems, with regard to seismic conditions and existing soil conditions. The engineer shall provide recommendations for Construction requirements as to protecting the Design-Build Work and any existing structures and Utilities. The Design-Builder shall perform all geotechnical work and subsurface explorations in accordance with the Contract Standards.
The Design-Builder shall have the full responsibility for verifying the presence and location of all subsurface utilities structures at the Project Site.
5.5.2 Deliverable Material.
The Design-Builder shall deliver to the Town all Deliverable Material required to be delivered under this Appendix, Appendix 6, Appendix 7 and Appendix 9.
5.5.3 Signs.
The Design-Builder shall provide and maintain temporary identification and information signs during the Design-Build Period in conformance with Town requirements and specifications. No signs shall be erected until their appearance, content, and location have been fully reviewed and approved by the Town, which approval shall not unreasonably be withheld, conditioned or delayed. The Design-Builder shall remove temporary signs from the Project Sites when they are no longer necessary.
5.5.4 Laydown Areas and Town Construction Office Space.
Laydown and staging areas for construction materials shall be located at the Project Sites or at other locations arranged and paid for by the Design-Builder that are approved by the Town. The Design-Builder shall not store materials in a Town Right of Way unless authorized by the Town.
5.5.5 Maintenance of the Project Sites.
During performance of the Design-Build Work, the Design-Builder shall be responsible for the overall maintenance of the Project Sites. The Design-Builder shall keep the Project Sites neat and orderly at all times, and shall clean up and remove all rubbish and construction debris from the Project Sites as they accumulate in accordance with the Contract Standards.
5.5.6 Temporary Utilities.
The Design-Builder shall supply all necessary temporary Utilities, including electricity, telecommunications services, potable water, fire protection, lighting, and sanitary facilities, during Construction, testing and start-up of the Project. Prior to the Substantial Completion Date, the Design-Builder shall disconnect and arrange for the disconnection and removal of all temporary Utility connections and services. The Design-Builder shall coordinate with the Town on all temporary Utilities.
5.5.7 Relocation of Existing Utilities.
The Design-Builder shall be responsible for all Construction activities required with regard to existing utility services and installations (e.g., conduits, pipelines, transmission mains and other utility equipment and appurtenances), including after Town review and approval of any relocation of Utilities consistent with the Design-Builder’s Utility Relocation Plan. 527
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5.5.8 Noise Control and Construction Work Hours.
The Design-Builder shall comply with all noise regulations required pursuant to Applicable Law.
The Design-Builder shall not perform Construction work between 6 PM and 7 AM, or on Sundays, holidays or Saturdays without specific permission from the Town.
5.6. COORDINATION OF CONSTRUCTION WORK AND OPERATIONS
5.6.1 Maintenance of Operations.
The Design-Builder shall take no actions during Construction that adversely affect operation of Town, public or private Utilities. The Town shall arrange and provide all necessary bypasses and other measures needed to maintain utility service.
5.6.2 Coordination with Related Projects
The Design-Builder shall take no actions during Construction that adversely affect the construction of the Related Projects.
5.7. CONSTRUCTION SAFETY AND SECURITY
5.7.1 Safety and Security.
The Design-Builder shall maintain safety and security at the Project Sites at all times at a level consistent with the Contract Standards. Without limiting the foregoing, the Design-Builder shall:
(a) Take appropriate precautions for the safety and security of the Design-Build Work and provide appropriate protection to prevent damage, injury or loss related to the performance of the Design-Build Work over the Design-Build Period for:
(1) Workers at the Project Sites and all other persons who may be involved with deliveries or inspections;
(2) Visitors to the Project Sites;
(3) Passersby, neighbors and adjacent properties with respect to the DesignBuild Work activities; (4) Materials and equipment under the care, custody or control of the DesignBuilder or Subcontractors on the Project Sites; (5) Other property constituting part of the premises or the Project under construction; and
(6) Town Property;
(b) Establish and enforce appropriate safeguards for safety and protection, including posting danger signs and other warnings against hazards; (c) Provide temporary fencing of all open or partially open trenches and excavations, all open or partially completed structures, and all work and storage areas at all times while unattended by workmen;
(d) Implement a comprehensive safety program in accordance with Applicable Law; 528
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(e) Give all notices and comply with all Applicable Law relating to the safety of persons or property or their protection from damage, injury or loss; (f) Operate and maintain all equipment in a manner consistent with the manufacturer’s safety requirements;
(g) Provide for safe and orderly vehicular movements and maintain compliance with the Traffic and Pedestrian Control Plan prepared as a Preliminary Service; (h) Develop and implement a Project Sites-specific update to the Health and Safety Plan for the Design-Build Period Work that includes management commitment, maintaining a safe workplace, employee participation, hazard evaluation and controls, employee training and periodic inspections;
(i) Designate an appropriately certified and experienced safety professional to develop and sign the Project Sites-specific update to the Health and Safety Plan for the Design-Build Period Work, including all safety rules at the Project Sites; (j) Designate a qualified safety professional at the Project Sites during on-site Construction activities who shall be responsible for the implementation of safety rules at the Project Sites, the prevention of fires and accidents, monitoring compliance with the Design-Builder’s Project Sites-specific update to the Health and Safety Plan for the Design-Build Period Work, and the coordination of such activities as shall be necessary with the Town and all Governmental Bodies related to health and safety; and
(k) Require all Subcontractors to work in accordance with and implement the updated Health and Safety Plan for the Design-Build Period Work, comply with the Design-Builder’s on-site safety requirements, and designate a qualified safety professional whose duty shall be the implementation of safety rules at the Project Sites and monitoring compliance of Subcontractor employees with the Project Sites-specific update to the Health and Safety Plan for the Design-Build Period Work.
5.7.2 Construction Site Security.
The Design-Builder shall develop, maintain and comply with a Project Sites security plan that complies with Appendix 5 is approved by the Town and constitutes part of the Health and Safety Plan. The security plan shall provide for the security of the Project Sites when perimeter fencing cannot be continuously maintained.
5.8. OPERATIONS AND MAINTENANCE MANUAL
5.8.1 Development by the Design-Builder
The Operations and Maintenance Manual shall be a secured online, electronic manual with hard copy reproduction capability. During the Design-Build Period, the Design-Builder shall develop the Operations and Maintenance Manual in accordance with the Contract Standards. The Design-Builder shall provide the Town with preliminary, interim, pre-final and final versions of the Operations and Maintenance Manual for the Town’s review, comment and approval.
A pre-final Operations and Maintenance Manual shall be submitted to and approved by the Town as a condition precedent to the achievement of Substantial Completion. A final Operations and 529
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Maintenance Manual shall be submitted to and approved by the Town as a condition precedent to the achievement of Final Completion.
5.8.2 Content of the Operations and Maintenance Manual
The Operations and Maintenance Manual shall (i) include the practices and procedures necessary for Project operation and control, auxiliary facility equipment and systems, system maintenance, repair and replacement, and grounds and buildings maintenance; and (ii) integrate all equipment and systems manuals and Service Manuals. The Operations and Maintenance Manual will be comprehensive, suitable as a resource for training operational staff, and will include the following information:
(a) process design criteria;
(b) Project layout drawings and process flow diagrams;
(c) detailed operation and control procedures;
(d) standard operating procedures;
(e) emergency response procedures;
(f) maintenance instructions, including:
(1) information necessary to properly assemble and install the equipment, including alignment, clearances, tolerances and interfacing equipment requirements; the trade and skill level required to install the equipment; any special rigging required to place the equipment; and any special test equipment required to place the equipment in service;
(2) manufacturer’s schedule for routine preventive maintenance, calibration, lubrication, inspections, tests, and adjustments required to provide for proper and economical operation and to minimize corrective maintenance and repair;
(3) manufacturer’s projection of preventive maintenance labor-hours on a daily, weekly, monthly, and annual basis, including required trades and skill levels required for performance of maintenance and the total time required to perform the work;
(4) manufacturer’s troubleshooting guide and recommendations on procedures and instructions for correcting problems and making repairs; (5) step-by-step procedures to isolate the cause of typical malfunctions, describing clearly why the checkout is performed and what conditions are to be sought;
(6) a description of maintenance and operating tools, replacement parts and materials, including specified quantity of spare parts; (7) information available from the manufacturers to use in training personnel to maintain the equipment and systems properly;
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(8) information on test equipment required to perform specified tests and/or special tools needed for the maintenance and repair of components; (9) instructions related to when equipment is in operation, including lubrication requirements;
(10) all warranty information, including effective warranty dates; (11) Governmental Approvals indicating approval of all installations requiring permits; and
(12) the development of asset records and the means to assess equipment condition;
(g) a long-term schedule of major repairs and replacements, including a long-term budgeting plan to maintain the operability, durability and reliability of the Project through its projected operational life;
(h) the practices and procedures necessary to maintain the appearance of the buildings, grounds and landscaping of the Project; and
(i) procurement procedures for all additional tools, equipment, maintenance supplies and component parts necessary for the operations and maintenance of the Project, including specifications and quantity of the items to be procured and procedures for planning and scheduling delivery of such items.
[Note: To be developed.]
5.9. SERVICE MANUALS
The Service Manuals shall include the practices and procedures necessary for the operation and control, maintenance, and repair and replacement of each equipment system, package, or unit incorporated into the Project. The Service Manuals shall be suitable as a resource for operating and maintaining the components of the Project, and shall include the following information:
(a) safety information for each equipment system, package or unit incorporated into the Project, including mechanical and electrical lockout procedures for all Project components; and
(b) descriptions of units or systems and component parts, their functions, operating characteristics and limiting conditions, including:
(i) equipment summary, which will include nameplate data, supplier, manufacturer and local representative;
(ii) start-up sequences, including inspections required before initiation of sequence;
(iii) performance monitoring requirements to confirm proper operation and guide component control adjustments;
(iv) adjustment of variable functions and settings;
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(vi) troubleshooting guidelines to identify non-performing components and identify probable cause;
(vii) shut-down sequences and lock-out requirements to safely remove components from service without adverse impact on system performance; (viii) preparation to isolate off-line equipment piping, power, and controls for safe execution of maintenance activities; and
(c) description of instrumentation and control system, including alarm summary.
Pre-final Service Manuals shall be submitted to and approved by the Town as a condition precedent to the achievement of Substantial Completion. Final Service Manuals shall be submitted to and approved by the Town as a condition precedent to the achievement of Final Completion.
5.9.2 Electronic Requirements
The Operations and Maintenance Manual will cover all process, electrical, instrumentation, and control equipment in the Project as secure digital electronic files that are designed for both webbased and local network access [with capability to be linked and coordinated the Chico WPCP].
The Design-Builder shall:
(a) provide links within the final Operations and Maintenance Manual to digital files of all Final Design Documents and individual equipment service manuals; (b) provide special secure applications and links required to permit access to the final Operations and Maintenance Manual files from hand-held electronic devices and other portable or fixed electronic devices designated by the Town; and (c) coordinate digital Operations and Maintenance Manual development with the Town’s information technology group to determine compatibility with currently available hardware and software in the Town network.
[Note: To be developed.]
5.10. ENVIRONMENTAL REVIEW AND PROTECTION
5.10.1 Wildlife and Protected Species Protection.
In accordance with the Environmental Mitigation Measures, if any exist, the Design-Builder shall develop and implement a plan that is consistent with required mitigation measures for wildlife and protected species that may be affected by Construction activities of the Design-Builder. Prior to implementing the plan, the Design-Builder shall obtain Town approval.
5.10.2 Design-Builder Construction Environmental Monitor.
If required by the Environmental Mitigation Measures, if any exist, the Design-Builder shall assign a Design-Builder Construction Environmental Monitor (the “CEM”) to confirm that its mitigations plan is properly and fully implemented. The CEM shall be the single, identified entity or person responsible for, at a minimum, the following duties:
(a) Planning of environmentally compliant construction methods. 532
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(b) Oversight of Construction activities to determine compliance with mitigation measures.
(c) Ensuring that all training has been conducted, and signage, marking and barriers to protected areas have been installed.
(d) Ensuring compliance with the Stormwater Pollution Prevention Program (SWPPP). (e) Coordination with the Town on implementation of environmental mitigation measures.
(f) Coordination with Governmental Bodies that have administrative oversight of the environmental sites to be protected, if required.
(g) Compliance with environmental Governmental Approvals. (h) Meeting or interacting with representatives of Governmental Bodies with environmental oversight authority, if required.
All environmental monitoring duties conducted by the CEM shall be recorded in the form of a standard report and photographic log (as required). The photographic log shall be kept in both electronic and hardcopy form. All reports shall be submitted to the Town in summary form on a monthly basis or more frequently if required by the Town. Copies of all daily monitoring records shall be maintained at the Terminus Site by the CEM.
5.10.3 Contaminated Media Management Plan.
The Design-Builder shall develop, maintain and implement a Contaminated Media Management Plan that includes at a minimum the requirements specified in this Section 5.10.3 and Appendix 2. A copy of the Contaminated Media Management Plan shall be submitted to the Town and all appropriate Governmental Bodies for review and approval. The intent of the plan is to prevent accidental spills, site contamination, and injury or illness of all personnel on the site due to contact or exposure to Regulated Substances. The Town shall notify the Design-Builder of any observed conditions that may be in violation of the plan. If the Design-Builder fails to address Town-reported concerns about observed conditions that may be in violation of the plan in a timely and appropriate manner, the Town may notify all appropriate Governmental Bodies, and report the observed conditions to them, and request that they inspect the sites involved that are under the Design-Builder’s control. All documents required by the Contaminated Media Management Plan shall be made available to the Town immediately upon request.
5.10.4 Design-Builder Regulated Substances.
Any Regulated Substances generated by the Design-Builder shall be the responsibility of the Design-Builder. The Design-Builder shall obtain an EPA identification number for all DesignBuilder Regulated Substances, listing the Design-Builder’s name and construction site address as the generator of the Design-Builder Regulated Substances. The Design-Builder shall be responsible for the identification, analysis, profiling, documentation, reporting, transport and disposal of Design-Builder Regulated Substances. Any fines that are levied against the Town for violations of Applicable Law as determined by any Governmental Body relating to Design-Builder Regulated Substances shall be reimbursed immediately by the Design-Builder after payment by the Town.
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5.10.5 Emergency/Spill Response Plan.
As part of the Design-Build Period Work, the Design-Builder shall develop an Emergency/Spill Response Plan (the “Emergency Response Plan”), for each Regulated Substance or class/group of Regulated Substances either known to be on the Project Sites or intended to be brought to the Project Sites by the Design-Builder. At a minimum, the Emergency Response Plan must include the following:
(a) A description of on-site equipment available to contain and respond to an emergency/spill of the Regulated Substance.
(b) Notification procedures, including notification to potentially impacted residents adjacent to the Project Sites.
(c) Response coordination procedures between the Design-Builder and the Town. (d) A Regulated Substance site map showing the location of stored Regulated Substances and location spill containment/response equipment. (e) A description of the Regulated Substances handling and spill response training provided to the Design-Builder’s employees and Subcontractors.
5.10.6 Dust Control.
The Design-Builder shall be responsible for dust control during the performance of the DesignBuild Work and shall comply with all applicable air pollution control regulations and the Environmental Mitigation Measures, if any exist. The Design-Builder shall furnish all necessary labor, materials and equipment for dust control.
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APPENDIX 6
QUALITY ASSURANCE AND QUALITY CONTROL REQUIREMENTS
6.1. PURPOSE
The purpose of this Appendix is to describe the minimum requirements for the Quality Management Plan (the “QMP”) for each of the Phase 1a Preliminary Services, the Phase 1b Preliminary Services and the Design-Build Period Work, including quality assurance (“QA”) and quality control (“QC”) procedures.
(a) Quality assurance refers to the overall efforts to assuring project quality. Quality assurance shall include the planning and activities necessary to verify that the required QC activities have been satisfactorily conducted and that the quality requirements were met.
(b) Quality control shall include the monitoring, inspection, sampling and testing as applicable, and evaluation of the Design-Build Work through the project to verify that quality requirements as specified in the Contract Documents are met.
Quality control also includes the identification of any defective work and documentation of completed corrective measures.
6.2. TOWN’S QUALITY OBJECTIVES
The QMP is a critical component of the design and Construction of the Project. The QMP, including quality assurance and quality control (“QA/QC”), shall be consistent with and support the following quality objectives for the Project:
(a) Confirm that permitting, design, construction and testing are consistent with the Contract Standards;
(b) Confirm that Governmental and Non-Governmental Approval requirements are effectively incorporated into Design-Build Work;
(c) Develop and implement procedures to provide that problems are discovered early, resolved in a timely manner, and do not recur;
(d) Confirm that adequate QA/QC procedures and resources are provided by the Design-Builder to effectively assess and provide for high quality in all work products and services and compliance with warranty requirements, safety, security and environmental compliance requirements;
(e) Provide timely reporting and documentation of QA/QC inspections, technical reviews, testing, analysis and determinations of compliance with the Contract Standards;
(f) Provide follow up inspections, analysis and testing if conditions are found to be non-compliant with the Contract Standards and verify through special reports and direct communications with the Town that all corrective actions have been effectively implemented and that the resultant product or service is of acceptable quality.
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6.3. ROLES AND RESPONSIBILITIES
6.3.1 Design-Builder's Role and Responsibilities for QA/QC.
The Project QA/QC functions as defined in this Appendix are the responsibility of the DesignBuilder.
6.3.2 Town’s Role and Responsibilities for QA/QC.
The Town ultimately retains its rights with respect to the Substantial Completion of the Project.
The Town may perform design reviews, verification sampling and testing, independent assurance sampling and testing, review of the Design-Builder's construction management scheduling, and other actions to verify payment of progress payments under the terms of this Design-Build Contract. However, by doing these actions, the Town does not assume responsibility for any design or construction issue except as otherwise indicated in this Design-Build Contract.
6.4. QUALITY MANAGEMENT PLAN UPDATE AND IMPLEMENTATION
6.4.1 General Requirements.
The Project requires one QMP initially applicable to the Phase 1a Preliminary Services, as updated to be applicable to the Phase 1b Preliminary Services and as further updated to become applicable to the Design-Build Period Work. The development and implementation of the QMP shall be the responsibility of the Design-Builder. The QMP shall integrate, as applicable, the permitting, design and construction as parts of the Project and shall include detailed QA and QC programs as attachments. Other QMP requirements are defined in Sections 6.5 and 6.6 of this Appendix.
6.4.2 Quality Management Plan Requirements.
As part of Task 1.1 of the Phase 1a Preliminary Services and within twenty-one (21) calendar days of Notice to Proceed, the Design-Builder shall prepare and submit its draft of the QMP for review and concurrence by the Town. The final QMP shall be submitted within twenty-one (21) calendar days of receipt of comments from the Town. Throughout the Phase 1a Preliminary Services, the Design-Builder shall also implement the activities described by the QMP, cause the Project team to be familiar with their contents, and keep the QMP up to date.
As part of the Phase 1b Preliminary Services and within twenty-one (21) calendar days of Notice to Proceed, the Design-Builder shall prepare and submit its draft of an update to the QMP for the Phase 1b Preliminary Services for review and concurrence by the Town. The final updated QMP for the Phase 1b Preliminary Services shall be submitted within twenty-one (21) calendar days of receipt of comments from the Town. Throughout the Phase 1b Preliminary Services, the Design-Builder shall also implement the activities described by the updated QMP for the Phase 1b Preliminary Services, cause the Project team to be familiar with their contents, and keep the QMP up to date.
As part of the Design-Build Period Work and within twenty-one (21) calendar days of Notice to Proceed, the Design-Builder shall prepare and submit its draft of an update to the QMP for the Design-Build Period Work for review and concurrence by the Town. The final updated QMP for the Design-Build Period Work shall be submitted within twenty-one (21) calendar days of receipt of comments from the Town. Throughout the Design-Build Period Work, the Design-Builder shall also implement the activities described by the updated QMP for the Design-Build Period Work, cause the Project team to be familiar with their contents, and keep the QMP up to date. 538
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The QMP shall include a description of how the Design-Builder will provide the following (as applicable to each of the Phase 1a Preliminary Services, the Phase 1b Preliminary Services and the Design-Build Period Work, as applicable):
(a) Adequate resources for effective plan implementation throughout the applicable stage of the Project.
(b) Information on QA/QC staff to be assigned to the Project and their qualifications for performing required QA/QC functions;
(c) Programs, procedures, methods, tests, analyses and communications procedures, reports, photographs and comments on drawings and specifications and other documents used by the Design-Builder to assess quality and compliance with the Contract Standards;
(d) How the QA/QC program shall be empowered to enforce plan objectives, define quality requirements, independently verify quality of Phase 1a Preliminary Services, Phase 1b Preliminary Services and Design-Build Period Work products and services, identify potential causes of unacceptable quality of work and provide safeguards to prevent unacceptable work quality, and require prompt corrective action for identified deficiencies;
(e) Communication of quality requirements to their commencement of providing products or services on the Project. This shall include information on the roles, responsibilities and authorities of identified QA/QC staff; (f) The Design-Builder shall submit its draft of the Quality Management Plan, its draft of the update to the Quality Management Plan for the Phase 1b Preliminary Services and its draft of the update to Quality Management Plan for the DesignBuild Period Work, the Town will provide comments thereon and the DesignBuilder shall submit the final forms thereof as outlined above; and (g) If any Early Work Packages are initiated prior to the GMP Submittal, the update to the Quality Management Plan for the Design-Build Period Work submittal shall be issued prior to Construction. The Town will provide comments on the Quality Management Plans, and the Design-Builder shall make required changes within twenty-one (21) calendar days of receipt of such comments.
6.4.3 Changes to the Quality Management Plan.
Revisions and updates to the QMP may be proposed by the Design-Builder as Preliminary Services and the Design-Build Work progresses. Changes to the approved QMP require written approval of the Town. Proposed revisions or updates shall be provided to the Town at least 30 days prior to the start of the Design-Build Work to which the revision applies. The Town will review and respond in a timely manner to QMP proposed changes. The Design-Builder shall not initiate any of the Design-Build Work that is impacted by such proposed revision or change until the Town has reviewed and accepted the change.
6.5. DESIGN QUALITY CONTROL AND QUALITY ASSURANCE REQUIREMENTS
6.5.1 Design QA/QC Program.
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the details of the Design-Builder’s Design QA/QC program and include a description of how the Design-Builder will provide the following:
(a) Design management functions and design review processes, which are the responsibility of the Design-Builder, will be described; (b) Typical design QC tasks to be accomplished by the Design-Builder will be described and may include technical review of design deliverables, checking of calculations, checking of quantities, and the review of specifications; (c) Describe the process to approve and release design packages for Construction in alignment with the Design QA/QC program;
(d) Demonstrate that the Town retains oversight in the form of review and verification of the design's ability to meet the stated contract requirements. The Town and its designated consultants will participate in the design review process while not relieving the Design-Builder from its obligation to comply with the Contract Documents;
(e) Describe the application of the Design QA/QC program through design review techniques to be used by the Design-Builder, such as over-the shoulder design reviews to supplement formal reviews, formal milestone reviews, and submittal reviews during the Design-Build Period.
6.5.2 Design Quality Assurance Manager.
The Design-Builder shall designate a Design Quality Assurance Manager to determine whether the Baseline Design Documents and other Contract Standards are being met and that design QA/QC activities are following the approved QMP. The Design Quality Assurance Manager shall compile and maintain documentation of the review.
6.6. CONSTRUCTION QUALITY CONTROL REQUIREMENTS
6.6.1 Construction QA/QC Program.
The QMP shall include the details of the Design-Builder’s Construction QA/QC program, including the following:
(a) The Construction QA/QC program shall require inspection during Construction by inspectors who are not responsible, in whole or in part, for the scheduling or Construction of the Design-Build Work being inspected.
(b) Instructions for performing inspections must be clearly defined, including the work attributes to be inspected, acceptability criteria, frequency of inspections, and the requirements for documenting the inspection results. (c) Inspection records must be kept current, have sufficient detail to enable the Engineer-of-Record to identify inspections which have been performed, and the results of these inspections. Inspections must be made throughout the period of construction, including the initial construction, in-process inspections, final inspections, and testing during Construction.
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(d) Documentation requirements shall include contractor production reports, contractor quality control reports, field test reports, testing plan and log, inspection reports, rework items list and quality control meeting minutes. (e) Procedures and controls shall be provided to cause inspections to be performed using the latest Design Documents and approved shop drawings. Procedures shall require that an adequate number of inspection personnel are available as needed, and that all inspectors are qualified, trained, and proficient in performing inspections for the Design-Build Work to which they are assigned. (f) A full-time quality control inspector and necessary specialty inspectors are to be provided by the Design-Builder.
6.6.2 Non-Conforming Work.
The Construction QA/QC program shall establish and maintain a non-conformance system and procedures for uniform reporting, controlling, and disposition of nonconformance, including the following:
(a) The non-conformance system shall describe methods to be implemented, including a daily non-conformance report (NCR), to identify and track all unsatisfactory, deviating, and nonconforming work until the required repair, rework, or replacement is performed, and the work has been re-inspected and accepted. In addition, the non-conformance system shall detail the methods and measures to be used to develop corrective action procedures and prevent the recurrence of non-conforming work.
(b) The Construction QA/QC program shall detail the means and methods for identifying and correcting all Construction deficiencies such that Construction quality meets the Contract Standards and the Design-Builder’s Design Documents.
(c) The Construction Quality Assurance Manager shall be informed of all unsatisfactory conditions within 24 hours of identification, and a copy of the condition report sent to the design-engineer. The Design-Builder will correct any nonconforming conditions in accordance with Section 6.16 of this Design-Build Contract.
(d) The Design-Builder is encouraged to make corrections for non-conforming work as soon as practical rather than waiting until Substantial Completion. The Town may use the NCR as a basis for conducting its own final acceptance activities.
6.6.3 Construction Quality Assurance Manager.
The Design-Builder shall designate a Construction Quality Assurance Manager to determine whether the Baseline Design Documents and other Contract Standards are being met and that Construction QA/QC activities are following the approved QMP.
6.6.4 Materials and Equipment.
The Construction QA/QC program shall set the minimum requirements for the quality of all material and equipment. Procedures shall be used to verify that the procurement documents meet all Contract Standards and the Design-Builder’s Design Documents, and shall include the following
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(a) Define how quality will be controlled during the manufacture and testing of all equipment which is being fabricated for the Project.
(b) Written documentation of inspection of all material and equipment to confirm that it meets all Contract Standards and the Design-Builder’s Design Documents.
Documentation such as material test reports, certifications, and equipment tests results must be delivered to the Town and the Town-designated representatives to demonstrate compliance with all Contract Standards and the Design-Builder’s Design Documents.
(c) Monitoring procedures to confirm that material and equipment is delivered to the Project Sites are undamaged, in the proper quantities and in accordance with the specification requirements, and that all materials and equipment are stored and maintained on the Project Sites according to the Contract Standards, including the requirements of the designer and the manufacturer.
6.6.5 Construction Management and Testing.
The Design-Builder shall provide all necessary construction management and comprehensive construction administration for the Design-Build Period Work. Construction inspectors, who shall be provided with the latest Design Documents released to Construction, shall perform initial verification of procurement and Construction activities at the Project Sites, so that any conflicts will be identified at an early stage. The Construction QA/QC program shall clearly identify the circumstances under which the Design-Builder’s registered soils or geotechnical engineer and the Engineer-of-Record will be involved in Construction quality oversight. The Design-Builder shall perform all testing and inspections as required by the Contract Standards, approved design documents, applicable codes, regulations, and standards (such as ACI and ASTM) which may be referenced in Appendix 4. Section 1.2(R) of this Design-Build Contract shall govern any conflicts or inconsistency in the stringency of test requirements.
6.6.6 Laboratories.
All Construction testing shall be performed by individuals who are qualified and experienced in providing these testing services. Equipment used to perform tests shall be calibrated according to requirements in the testing procedure. The Design-Builder shall hire a certified independent testing laboratory to perform all laboratory testing. The laboratory selected shall be authorized to operate in the State, certified under the State’s Environmental Laboratory Accreditation Program, as applicable, and shall be subject to the approval of the Town. Design-Builder requests for laboratory approval shall be made by the Design-Builder in a timely manner, in writing, to the Town. Laboratory tests shall include the proposed concrete mix design, concrete aggregate tests, strength of concrete field test cylinders, gradation, and moisture density relationship of soils. The certified testing laboratories must also perform on-site tests that the Design-Builder is not experienced, qualified, or certified to perform or that require independent testing under the Contract Standards. On-site tests shall include tests for: concrete slump, concrete air entrainment, concrete temperature, casting of concrete test cylinder specimens, inplace testing of concrete strength, compaction density testing of soils, and bedding materials coating thickness measurements and structural bolting torque.
6.7. INSPECTION OF DESIGN-BUILD WORK
6.7.1 Inspection and Correction.
All Design-Build Work performed by the Design-Builder or its Subcontractors shall be inspected by the Design-Builder. All nonconforming Design-Build Work and any safety hazards in the 542
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work area shall be noted and promptly corrected. The Design-Builder is responsible for the performance of the Design-Build Work safely and in conformance with Section 5.7 of Appendix 5.
6.7.2 Town Access.
The Town, its employees, agents, representatives and contractors shall be permitted access to all parts of the Design-Build Work, including plants where materials or equipment are manufactured or fabricated. The presence of the Town, its employees, agents, representatives and contractors shall not relieve the Design-Builder of the responsibility for the proper execution of the Design-Build Work in accordance with all requirements of the Contract Documents. No act or omission on the part of the Town, its employees, agents, representative and contractors (other than Town Fault) shall be construed as relieving the Design-Builder of this responsibility.
6.7.3 Materials Inspection.
All materials and articles furnished by the Design-Builder shall be subject to documented inspection, by qualified personnel, and no materials or articles shall be used in the Design-Build Work until they have been inspected and accepted by the Construction QA/QC Manager or other designated representative. Any Design-Build Work covered in the absence of inspection shall be subject to uncovering as set forth in Section 6.15 of this Design-Build Contract.
6.8. TIME OF INSPECTION AND TESTS
Whenever the Design-Builder is ready to backfill, bury, cast in concrete or otherwise cover any Design-Build Work, the Town shall be notified before such covering and completion, and the Town shall notify the Design-Builder of a requested inspection of any such Design-Build Work as set forth in Section 6.15(G) of this Design-Build Contract. Failure of the Design-Builder to properly notify the Town, as required by Section 6.15(G) of this Design-Build Contract, in advance of any such covering or completion shall be reasonable cause for the Town to request the Design-Builder take apart or uncover for inspection or testing any previously covered or completed Design-Build Work in accordance with Section 6.15(G) of this Design-Build Contract.
The costs of any uncovering, taking apart, remedial or corrective work required and all costs of such delays, including the impact on other portions of the Design-Build Work, shall be borne as set forth in Section 6.15(G) of this Design-Build Contract.
6.9. MATERIALS SAMPLING AND TESTING
6.9.1 Materials Testing and Removal.
All sampling and testing of materials shall be conducted in accordance with the methods prescribed in the current standards of the ASTM or otherwise required by the Contract Standards, as applicable to the class and nature of the article or materials considered. The Town reserves the right to require the Design-Builder to use any generally accepted system of inspection that, in the opinion of the Town, will provide sufficient evidence to the Town that the quality of the materials workmanship is in full accord with the Contract Documents. Results of such tests and analyses shall be considered along with the tests or analyses made by the DesignBuilder to determine compliance with the applicable specifications for the materials so tested or analyzed. Wherever any material, as a result of such independent testing or investigation by the Town, fails to meet the requirements of the Contract Documents, all costs of such independent inspection and investigation and all costs of removal, correction, reconstruction, or repair of any such material shall be borne by the Design-Builder in accordance with Sections 6.15(G) and 6.16 of this Design-Build Contract.
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6.9.2 Materials Rejection.
The Town shall have the right at all times and places to reject any articles or materials to be furnished hereunder which, in any respect, fail to meet the requirements of the Contract Documents, regardless of whether the defects in such articles or materials are detected at the point of manufacture or after completion of the Design-Build Work at the Project Sites. If the Town, through an oversight or otherwise, has accepted materials or work which are defective or in any way contrary to the Contract Documents, such materials, no matter in what stage or condition of manufacture, delivery, or erection, may be rejected. The Design-Builder, at its cost and expense and without any adjustment to the Scheduled Substantial Completion Date and the Scheduled Acceptance Date, shall promptly remove and replace rejected articles or materials from the Project Sites after notification of rejection.
6.10. MATERIALS TESTING SERVICES
6.10.1 Design-Builder’s Laboratories.
The Design-Builder shall perform all tests requiring the services of a laboratory, to determine compliance with the Contract Documents, using independent commercial materials testing firms acceptable to the Town. The materials testing firm’s laboratory shall be staffed with experienced technicians, properly equipped, and fully qualified to perform the tests in accordance with the specified standards. The Design-Builder shall obtain the Town’s acceptance of the testing firm before having testing services performed, and pay all costs for these testing services.
6.10.2 Interruptions For Testing and Sampling.
The Design-Builder shall furnish all sample materials and cooperate in the testing activities, including sampling, and shall interrupt the Design-Build Work when necessary to allow testing, including sampling, to be performed. The Design-Builder shall have no claim for an increase in the Design-Build Price or extension of the Scheduled Substantial Completion Date due to such interruption. When testing activities, including sampling, are performed in the field by the testing firm’s laboratory personnel, the Design-Builder shall furnish personnel and facilities to assist in the activities.
6.10.3 Test Reports.
Written reports of tests and engineering data regarding materials and equipment proposed to be used in the Design-Build Work shall be submitted by the Design-Builder for the Town’s review.
The testing firm’s laboratory shall perform all laboratory tests within a reasonable time, consistent with the specified standards, and shall furnish a written report of each test. The Town shall furnish one copy of each field and laboratory QA/QC test conducted by the Town to the Design-Builder. The testing firm retained by the Design-Builder for material testing shall furnish a written report for each test. A copy of each test report shall be transmitted directly to the Town and Design-Builder electronically, within five days after each test is completed. The DesignBuilder shall consecutively number each report for each type of test.
6.10.4 Town’s Laboratories.
The Town shall have the right to inspect work performed by the Town-approved independent testing laboratory utilized by the Design-Builder, both at the Project Sites and at the laboratory.
This may include inspection of the independent testing laboratory’s internal quality assurance records (quality assurance manual, equipment calibrations, proficiency sample performance, etc.). Testing services provided by the Town, if any, are for the sole benefit of the Town; however, 544
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test results shall be available to the Design-Builder. Testing necessary to satisfy the DesignBuilder’s internal QA/QC procedures shall be the sole responsibility of the Design-Builder.
6.10.5 Materials to be Tested.
The Design-Builder shall provide all testing services in connection with the following materials as required under Good Design-Build Practice, and deliver the test reports for review by the Town:
(1) Concrete materials and mix designs.
(2) Asphalt concrete materials and design mixtures.
(3) Embankment, fill, and backfill materials.
(4) QC testing of all precast concrete.
(5) Holiday testing of pipeline coatings.
(6) Air testing of field-welded joints for steel pipe and fabricated specials. (7) Hydrostatic testing of pipeline and structures.
(8) Concrete strength tests.
(9) Magnetic particle or dye penetrant testing of field welds for steel pipe and fabricated specials.
(10) Moisture-density and relative-density tests on embankment, fill, and backfill materials, pipe bedding, and road bedding.
(11) In-place field density test on embankments, fills, backfill, pipe bedding and road bedding.
(12) Other materials and equipment as specified herein. (13) All other tests and engineering data required for the Town’s review of materials and equipment proposed to be used in the Design-Build Work.
6.11. INSTALLATION
6.11.1 Inspection and Measurement.
The Design-Builder shall inspect materials or equipment upon the arrival at the jobsite and immediately prior to installation, and remove damaged and defective items from the jobsite. The Town shall be provided the opportunity to observe any such Design-Builder inspections in accordance with Section 6.15 of this Design-Build Contract. The Design-Builder shall verify measurements and dimensions of the work as an integral step of starting each installation.
6.11.2 Manufacturer’s Instructions.
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these are more explicit or more stringent than the Contract Standards, so as not to violate manufacturers’ warranty conditions.
6.12. PERSONNEL QUALIFICATIONS
The QMP shall include a QA/QC organization chart with named individuals performing QA/QC including their experience and qualifications. The QMP shall describe staffing levels required for QA/QC and qualifications and experiences requirements for persons performing QA/QC functions, including the following:
(a) Description of minimum qualifications and experiences that demonstrate quality management personnel have related experience and certifications. Typically, this indicates professional engineers and professional certified quality personnel who have a certain level of similar project experience, which may include:
(i) QA/QC Management/Supervisors should possess experience managing professional personnel in similar circumstances or on similar projects; demonstrate excellent communication skills; possess a working knowledge of QA/QC and quality management; possess certification as quality professionals by appropriate certifying bodies or have completed training courses in the quality discipline.
(ii) The Design Quality Assurance Manager must be a registered professional engineer in the State; may work directly for the Design-Builder or may be contracted from an independent firm or organization; must have at least five years’ experience in projects similar in scale or scope to the Project. (iii) The Construction Quality Assurance Manager may work directly for the Design-Builder or may be contracted from an independent firm or organization; must have at least five years of recent experience (within the past ten years) overseeing the inspection and materials testing of projects similar in scale or scope to the Project.
(iv) QA and QC reviewers, inspectors, and testing technicians for design and Construction must be qualified for the duties they must perform; must possess the appropriate education or experience commensurate with the job responsibilities; and must possess the necessary certifications required for assignments.
(b) Persons performing QC and/or QA functions shall be at an organizational level that reports directly to upper level management of the Design-Builder to assure independence from the influences of the Project production staff. (c) All key personnel performing QC and/or QA functions shall be identified. 546
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DESIGN-BUILD WORK REVIEW PROCEDURES
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APPENDIX 7
DESIGN-BUILD WORK REVIEW PROCEDURES
7.1. OVERVIEW
7.1.1 Purpose.
The purpose of this Appendix is to set forth the procedures for the Town’s review of each aspect of the Design-Build Work to verify that the Project has been designed and constructed in accordance with the Contract Documents.
7.2. DOCUMENTS TO BE SUBMITTED
At a minimum, the documents to be submitted during the Design-Build Period shall include the following:
(a) Monthly Design-Build Period Work Schedule updates
(b) Intermediate submittals for review sessions and workshops on various materials, facilities, systems, equipment, and disciplines
(c) Final Design Documents (issued for Construction)
(d) Test reports
(e) Operations and Maintenance Manual, if applicable
(f) Applications and supporting documents required for any remaining Governmental Approvals
(g) Record drawings and specifications
7.2.2 Design-Construction Work Package Information.
Consistent with its Town-approved Design and Construction Phasing Plan, the Design-Builder shall have flexibility with how it organizes and performs design-Construction work packages so that it can proceed with ordering any necessary materials and equipment or commence with any Early Works Package(s) prior to the Final Design; provided, however, such Construction or ordering of materials and equipment prior to the Final Design shall not negatively affect the remaining Design-Build Period Work, the Design-Build Price or the Design-Build Period Work Schedule. The Design-Builder shall provide the following information in the appropriate designconstruction work package(s):
(a) Specifications, Design Narratives and Lists:
(1) Project design criteria
(2) Specifications list
(3) Piping list
(4) Valve list, if applicable
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(5) Cathodic protection narrative, if applicable
(6) Construction sequencing and Dewatering Narrative
(7) Contaminated Media Management Plan
(8) Specifications (general requirements, civil, structural, specialties and mechanical sections)
(b) Drawings prepared and accepted for the GMP Submittal Design Level shall continue to be progressed to Final Design completion and shall be submitted, in both electronic and standard design formats:
(1) Cover sheet
(2) Drawing index
(3) List of abbreviations
(4) Legends
(5) Layouts of the Project Sites and Piping
(6) Construction Staging and Phasing Plans
(7) Access and Traffic Control Plans
(8) Landscape plans, surface restoration and irrigation plans and details (9) TESC plans and details
(10) Project Sites grading and utility plans, with sections as needed for Construction clarity or dimensioning
(11) Surface drainage plans and details
(12) Outfall structure and other structural foundation plans and sections (13) Outfall structure and other structural plans
(14) Outfall structure and other structural exterior elevations and sections, if applicable
(15) Sections through all major crossings and structures (16) Other systems plans, details and schedules, if applicable (17) Pipeline plan and profile sheets
(18) Pipeline sections and details
(19) Tunnel and access pit plans, sections and details
(20) Dewatering plans and details
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7.3. TOWN REVIEW DURING GOVERNMENTAL AND NON-GOVERNMENTAL APPROVAL
PROCESS
The Design-Builder’s responsibilities for obtaining and maintaining the Governmental and NonGovernmental Approvals required for Construction of the Project are described in Section 6.5 of this Design-Build Contract and Appendix 3. The Town shall have the right to review and comment on Design-Builder submittals as provided by Section 6.5 of this Design-Build Contract and this Appendix. Governmental Approval applications shall not include design specifications or drawings that the Town has not previously reviewed. For all Governmental Approval applications, the Design-Builder shall provide draft copies of the applications and supporting documents for Town review and comment. The Town’s review will not diminish the DesignBuilder’s responsibility for timely submittals of complete applications for Governmental Approvals. The Town may attend Design-Builder meetings with permitting agencies and help arrange for agency reviews and meetings.
7.4. TOWN DOCUMENT REVIEW
7.4.1 Town Review Responsibilities.
The Town shall review design-construction work package documents included in the DesignBuilder’s Final Design Documents for compliance and consistency with the design at the GMP Amendment and for overall compliance with the requirements of the Contract Documents. The Town’s input during finalization of the design documents and preparation and finalization of design-construction work packages shall be solicited by the Design-Builder on a timely basis so as to provide adequate periods for review by the Town, revisions by the Design-Builder and final review by the Town without negatively impacting the Design-Build Period Work Schedule. The Town shall make reasonable efforts to bring staff or representatives with review and decisionmaking authority to the work sessions as requested and scheduled by the Design-Builder. The Design-Builder shall provide the Town with advance notice of the work sessions and agenda topics to facilitate the Town’s scheduling of the appropriate participants for the work sessions.
The Design-Builder shall provide the Town with Final Design Documents before commencing any Construction activity, except as provided in Section 7.2.2 of this Appendix. Construction activities shall not vary from the Final Design Documents submitted to the Town except where such variations are allowed, subject to the Town’s and applicable Governmental Body’s review and approval. Adherence to the Final Design Documents as well as to the Baseline Design Documents during work completion shall be a factor used by the Town in its review and approval of the Design-Builder’s Payment Requests during Construction.
7.4.2 Changes to Baseline Design Documents.
Any change requested by the Design-Builder to the Baseline Design Documents (regardless of prior oral discussion) must be clearly identified by the Design-Builder in its cover letter that transmits the submittal and must be fully documented with compelling justification of the Design-Builder’s request for a change to the Baseline Design Documents and the benefits to the Town for consenting to such a change. Any such change shall comply with the requirements set forth in Article 6 of this Design-Build Contract, as applicable. No change to the Baseline Design Documents shall be made except with the Town’s approval pursuant to Section 6.7 of this Design-Build Contract. The Design-Builder shall assume all risks associated with obtaining Town approval of any change to the Baseline Design Documents. 550
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7.4.3 Time for Town Review.
Town review time for Preliminary Services Period submittals is planned to be no longer than two weeks, unless otherwise agreed to by the Town and the Design-Builder. Town review time for Design-Build Period submittals will be established by the GMP amendment.
The Design-Builder and the Town shall periodically review key submittals and the target submittal dates, and develop a submittal review schedule for each submittal based on the content and criticality of each submittal. The Town shall complete its review of each submittal in a timely manner based on such target submittal dates in order to determine that the DesignBuild Work conforms to the Baseline Design Documents and other Contract Standards. Nothing in this Section 7.4 shall prevent the Town from conducting a subsequent review raising a question as to whether the submittal was in compliance with the Contract Standards.
The review and comment rights of the Town under this Appendix are intended for the informational purposes of the Town and for the Town to determine whether the Design Documents comply with the Baseline Design Documents and other Contract Standards. The Town’s approval of any Design-Document shall not be required in order for the Design-Builder to proceed with the performance of the Design-Build Work.
7.4.4 Time for Design-Builder Response.
For each submittal, the Town shall provide written comments in a tabular summation describing any concerns, problems, or assertions of non-compliance with the applicable Contract Standards. The tabular summation shall be on a form created mutually by the Design-Builder and the Town, with provisions on the form for the Design-Builder’s responses. The DesignBuilder shall provide a written response to the Town’s comments within 15 days of receipt of the Town’s comments, primarily through use of the tabular summary form, including documentation of responses and agreed-upon action items.
7.4.5 Design-Build Progress Meetings.
For the purpose of facilitating a timely review process, the Design-Builder shall schedule designbuild progress meetings with the Town on a routine basis and at least bi-weekly (unless both parties agree that more frequent meetings are required) throughout the design finalization and design-construction work package development period. Any outstanding review comments not satisfactorily resolved shall be transferred to an issues tracking form by the Design-Builder for subsequent follow-up. The primary purpose of these meetings shall be to discuss overall DesignBuilder work progress, the conformance of the design and design-construction work packages to the Baseline Design Documents, and to address outstanding issues arising from the review and response process. The status and issues of related permitting and early Construction activities may also be included as agenda items for each design-build progress meeting. These meetings shall be held in the Town’s offices, or another location agreed to by the Town. Design-Builder representatives with responsibility for design and Construction shall participate in the meeting.
Similarly, the Town shall be appropriately represented by individuals with knowledge and authority for decision making at the meeting.
7.4.6 Design Submittals During Construction.
It is anticipated that there could be some redesign or design clarifications needed during Construction. Additional design work by the Design-Builder shall be subject to the Town’s review for compliance and consistency with applicable Baseline Design Documents and Contract Standards. Design changes to a particular Design Document performed following the issuance of the Design Document for Construction shall be issued under a Design Change Notice (DCN) 551
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process that accurately tracks and documents changes to the design. No later than 30 days prior to initiation of Construction, the Design-Builder shall submit to the Town any DCNs. The Town shall be provided with copies of all DCNs in a timely manner to allow review, comment, and, where appropriate, approval in the same manner as set forth with respect to the initial design.
Design clarifications shall be issued in a timely manner using a similar procedure. If a DCN requires a material change from what was reflected in the applications for Governmental Approvals, the DCN must be approved by the appropriate Governmental Body if required by Applicable Law.
7.4.7 Design Change Authority.
The Design-Builder shall be responsible for providing design changes to the Design Documents necessary to complete the Project in accordance with the Contract Documents. All such changes shall be implemented in accordance with the DCN process described above, and in accordance with this Appendix. No DCN shall operate to change the Baseline Design Documents unless approved by the Town in writing. Any DCN which requests a change to the Baseline Design Documents shall be subject to the Town’s rights under Section 7.4.2 of this Appendix.
7.5. TOWN CONSTRUCTION INSPECTION
7.5.1 Construction Review Intent.
The Town and its designated representatives, including the Owner Representative, shall have the right, as provided in this Appendix, to review and inspect Construction activities and participate in Construction progress meetings as needed to verify compliance with the Contract Standards.
In addition, the Town shall have the right to monitor the progress of Construction work and verify all applications for payment covering all Construction work performed during the preceding calendar month in accordance with the procedures set forth in Article 9 and Appendix 8 of this Design-Build Contract. Notwithstanding the Town’s review of Construction activities, the Design-Builder shall be fully responsible for means, methods, techniques, sequences, and procedures of Construction, as well as safety precautions and programs in the performance of the Design-Build Work. The Town’s review and involvement in Construction activities is intended for the informational purposes of the Town and to monitor compliance with the Contract Documents. Such activities shall also be a part of the Town’s independent quality assurance process and shall not be viewed as an additional layer or integral part of the Quality Management Plan.
7.5.2 “Or Equals”.
Whenever an item of material or equipment is specified in the Baseline Design Documents by using the name of a proprietary item or the name of a particular supplier, and is followed by the words “or equal”, material or equipment of other suppliers may be considered. The Town shall determine, acting reasonably, the acceptability of proposed “or equal” items associated with the Design-Build Work. The Design-Builder shall reserve adequate time for the Town to review and approve all “or equal” items for the Design-Build Work. Any delays resulting from submittal of “or equal” items shall be the responsibility of the Design-Builder. The Design-Builder’s design personnel shall be permitted to review proposed “or equal” suppliers for the balance of the Design-Build Work.
7.5.3 Named Suppliers.
Whenever an item of material or equipment is specified in the Baseline Design Documents by using the name of a proprietary item or the name of a particular supplier, and is not followed by the words “or equal”, the Design-Builder shall provide the named material or equipment. 552
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7.5.4 Functionally Equal.
If, in the Town’s reasonable discretion, an item of material or equipment proposed by the DesignBuilder for the Design-Build Work is functionally equal to that named, it may be considered by the Town as an “or equal” item. A proposed item of material or equipment shall be considered functionally equal to an item so named if:
(a) The Town determines that:
(1) it is at least equal in quality, durability, appearance, strength, and design characteristics; and
(2) it shall reliably perform at least equally well the function imposed by the design concept of the completed Project as a functioning whole; and (b) the Design-Builder certifies that it shall conform substantially, even with deviations, to the detailed requirements of the item named in the Contract Documents.
7.5.5 Corrections and Changes.
The procedures to be followed for correction of non-conforming Design-Build Work and for instituting changes and additions to such work are set forth in Article 6 of this Design-Build Contract.
7.6. FINAL SURVEY AND RECORD DRAWINGS
At the completion of Construction, the Design-Builder shall (i) conduct a final survey of the alignment including all structures and (ii) prepare and submit to the Town two complete sets of record drawings for the Project as built. The record drawings shall be prepared in accordance with the Contract Standards. The Design-Builder shall obtain the Town’s approval of the record drawings as a condition of Final Completion. The Town’s approval of the record drawings shall not be unreasonably withheld.
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APPENDIX 8
DESIGN-BUILD PRICE
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APPENDIX 8
DESIGN-BUILD PRICE
8.1. PURPOSE
The purpose of this Appendix is to set forth the procedures and requirements for determining (1) the Design-Build Price, and (2) the Guaranteed Maximum Price.
8.2. DESIGN-BUILD PRICE
8.2.1 Payment.
The Town shall pay the Design-Builder the Design-Build Price for its performance of the DesignBuild Period Work, subject to the Guaranteed Maximum Price established in accordance with Section 8.7 of this Appendix.
8.2.2 Design-Build Price Defined.
The Design-Build Price shall be an amount equal to the sum of:
(a) The Design-Build Period Costs;
(b) The General Conditions Fee; and
(c) The Design-Builder Fee,
all subject to the following:
(a) The Design-Build Price shall not include Unallowable Costs, all of which shall be borne by the Design-Builder without payment or reimbursement by the Town; (d) The only compensation payable for General Conditions Costs is the General Conditions Fee; and
(e) The Design-Build Price shall not exceed the Guaranteed Maximum Price.
8.2.3 Related Definitions.
As used in this Design-Build Contract, the following terms shall have the meanings set forth below:
(a) “Design-Build Period Costs” has the meaning specified in Section 8.3 of this Appendix.
(b) “Design-Build Price” has the meaning specified in Section 8.2.2 of this Appendix. (c) “Design-Builder Contingency” has the meaning specified in Attachment 8D of this Appendix.
(d) “Design-Builder Fee” has the meaning specified in Section 8.6 of this Appendix. (e) “General Conditions Costs” has the meaning specified in Attachment 8A of this Appendix.
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(f) “General Conditions Fee” has the meaning specified in Section 8.5 of this Appendix.
(g) “Guaranteed Maximum Price” has the meaning specified in Section 8.7 of this Appendix.
(h) “Specified Project Risk Contingency” has the meaning specified in Section 8.10.1 of this Appendix.
(i) “Specified Project Risks” has the meaning specified in Section 8.10.1 of this Appendix.
(j) “Town Allowance” has the meaning specified in Section 8.8.1 of this Appendix. (k) “Unallowable Costs” has the meaning specified in Section 8.4 of this Appendix. (l) “Uncontrollable Circumstance Costs” means, subject to Article 14, Section 17.8, and all other terms and conditions of this Design-Build Contract, any Design-Build Period Costs paid by the Design-Builder to the extent that such Design-Build Period Cost has been paid due to the occurrence of an Uncontrollable Circumstance.
8.2.4 Certification and Cost Substantiation.
Each Payment Request shall:
(a) Comply with and be submitted in accordance with the procedures and requirements of Article 9 of this Design-Build Contract. (b) Provide Cost Substantiation for the Design-Build Period Cost for which reimbursement is sought, including copies of all documentation reasonably necessary to demonstrate that the reimbursable Design-Build Period Cost has been paid or incurred.
(c) Be presented by element of the Design-Build Price.
(d) If Uncontrollable Circumstance Costs are being invoiced, present such Uncontrollable Circumstance Costs separately from other Design-Build Period Costs.
(e) If costs resulting from Subcontractor or Supplier delay or non-performance are being invoiced, present such costs separately from other Design-Build Period Costs.
(f) For Design-Build Period Costs payable on a lump sum basis, provide copies of all documentation reasonably necessary to demonstrate the value of the DesignBuild Period Work in place.
All such documentation shall be in a format and a level of detail reasonably acceptable to the Town.
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8.2.5 Relation to General Conditions Costs
Section 8.5 of this Appendix obligates the Town to pay a General Conditions Fee to the DesignBuilder. The General Conditions Fee is based upon a percentage of the Design-Build Period Costs incurred, is intended to compensate the Design-Builder for Design-Build Period Work General Conditions Costs, and is the only amount payable for General Conditions Cost whether the Design-Builder’s actual Design-Build Period Work General Conditions Costs are higher or lower than the amount of the General Conditions Fee. Accordingly, Design-Build Period Costs shall not include any costs constituting Design-Build Period Work General Conditions Costs unless otherwise expressly agreed to in writing by the parties.
8.2.6 Discounts, Rebates and Refunds.
All cash discounts, trade discounts, rebates, refunds and returns from the sale of surplus materials and equipment shall be reported and accrue to the benefit of the Town and serve to offset the Design-Build Period Costs.
8.3. DESIGN-BUILD PERIOD COSTS
“Design-Build Period Costs” means the reasonable and necessary costs paid or incurred by the Design-Builder in the proper performance of the Design-Build Period Work (including costs resulting from the occurrence of the risks assumed by the Design-Builder under this DesignBuild Contract) that (1) are described in and meet the requirements of this Section 8.3 (including all subsections) of this Appendix, and (2) are not Unallowable Costs.
As used in this Section 8.3, “reasonable and necessary costs paid or incurred by the DesignBuilder in the proper performance of the Design-Build Period Work” includes (1) costs of DesignBuild Period Work necessitated by ordinary mistakes or inadvertence; (2) costs incurred in repairing or correcting defective, damaged or non-conforming Design-Build Period Work; (3) additional costs incurred due to Subcontractor delay or non-performance; (4) costs incurred in performing needed corrective action; and (5) Uncontrollable Circumstances Costs, in all cases except to the extent any such costs constitute Unallowable Costs. Such reasonable and necessary costs are further described in subsections 8.3.1 – 8.3.6. [Note: Include unit costs for contaminated soil disposal and contaminated groundwater treatment for Uncontrollable Circumstances in new Attachment 8E in the GMP Amendment, if applicable.]
8.3.1 Third-Party Professional Services Fees.
(a) Professional fees and expenses payable by the Design-Builder to design engineers for design engineering services under third party design Subcontracts. Such fees for third-party design engineering services during the Design-Build Period or in connection with an Early Work Package shall be calculated based upon the rates set forth in Attachment 8B to this Appendix.
(b) Fees and expenses payable by the Design-Builder for professional services under third-party professional services Subcontracts for other professional services, including accounting, planning, surveying, consulting and other professional services.
8.3.2 Construction Subcontractor and Materials Supplier Costs.
An amount equal to the amounts properly payable by the Design-Builder to Subcontractors for Construction Work performed under Construction Subcontracts, and Subcontracts for equipment and materials entered into in accordance with the procedures and requirements set 557
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forth in Section 7.4 of this Design-Build Contract. No Subcontract shall provide for payment of Unallowable Costs.
8.3.3 Design-Builder’s Own Direct Labor Costs.
Except to the extent that any of the following costs are supervisory and administrative personnel costs (excluding those personnel costs specifically approved by the Town as Design-Build Period Costs), and, as such, constitute General Conditions Costs payable as part of the General Conditions Fee:
• Wages or salaries, employee benefits, premiums, taxes, insurance, contributions and assessments required by law, collective bargaining agreements and, for personnel not covered by such agreements, customary benefits such as sick leave, medical and health benefits, holidays, vacations and pensions paid by the Design-Builder, excluding bonuses, of direct employees of the Design-Builder (a) directly performing Design-Build Period Work (including Construction Work and design services) at the Project Sites or, with the written consent of the Town, at locations off of the Project Sites, or (b) providing services for the prosecution of the Design-Build Period Work as mechanics or fabricators in connection with materials, equipment, systems, and supplies incorporated, to be incorporated or reasonably used in completing the Design-Build Period Work. The costs for such employees of the Design-Builder performing Design-Build Period Work during the Design-Build Period or in connection with an Early Work Package shall be calculated based on the “all in” rates set forth in Attachment 8C to this Appendix or, if such rates are not set forth in Attachment 8C, based on the prevailing market rates for labor performing similar services.
8.3.4 Costs of Materials, Equipment and Supplies.
Except to the extent any of the following constitute General Conditions Costs or costs paid or incurred under Subcontracts with Suppliers for equipment and materials:
(a) Costs, including transportation, inspection, testing, storage and handling, of materials, equipment, systems, and supplies incorporated, to be incorporated or reasonably used in completing the Design-Build Period Work. (b) Costs of materials, equipment and supplies, described in item (c) of this Section 8.3.4, in excess of those actually installed to allow for reasonable waste and spoilage. Unused excess materials, equipment and supplies, if any, shall become the Town’s property at the completion of the Design-Build Period Work or, at the Town’s option, shall be sold by the Design-Builder. Any amounts realized from such sales shall be credited to the Town as a deduction from the Design-Build Price.
(c) Costs, including transportation and storage, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, machinery, equipment and hand tools not customarily owned by the construction workers, that are provided by the Design-Builder at the Project Sites and fully consumed in the performance of the Design-Build Period Work; and costs (less salvage value) of such items if not fully consumed, whether sold to others or retained by the Design-Builder. The basis for the cost of items previously used by the DesignBuilder shall be fair market value. 558
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(d) Rental charges and the costs of transportation, installation, minor repairs and replacements, dismantling and removal of temporary facilities, machinery, equipment and hand tools not customarily owned by the construction workers, which are provided by the Design-Builder at the Project Sites, whether rented from the Design-Builder or others, and incurred in the performance of the Design-Build Period Work. Rates and quantities of equipment rented shall be subject to the Town’s prior written approval.
(e) Costs of materials and equipment suitably stored off the Project Sites at a mutually acceptable location, if approved in advance in writing by the Town. (f) Any sales commissions related to the foregoing.
8.3.5 Other Costs.
Except to the extent any of the following constitute General Conditions Costs:
(a) Costs of conducting tests.
(b) Premiums for any Subcontractor Default Insurance.
(c) Increases in insurance premiums resulting from the Town request to modify lines of insurance coverage pursuant to Appendix 10.
(d) Costs of handing, removal and disposal of Hazardous Material and remediating Regulated Site Conditions (except as provided in Section 6.4(A) of this DesignBuild Contract). (e) Fuel and utility costs paid or incurred in the performance of the Design-Build Period Work.
(f) Sales, use or similar taxes, tariffs or duties imposed by a Governmental Body and incurred by the Design-Builder in the performance of the Design-Build Period Work for which the Design-Builder is not able to obtain an exemption under Applicable Law.
(g) Costs for obtaining and maintaining Governmental Approvals and NonGovernmental Approvals as set forth in Appendix 3. (h) Fees of laboratories for tests required by this Design-Build Contract. (i) Royalties and license fees paid for the use of a particular design, process or product required by this Design-Build Contract.
(j) Costs of travel, accommodations and meals for the Design-Builder’s personnel. (k) Premiums for Builder’s Risk and other Project specific insurance policies.
8.3.6 Compensation for On-Going Design Costs During the Negotiation of the GMP Amendment.
Section 5.10(B) of this Design-Build Contract anticipates that, following the GMP Submittal, the parties will negotiate the GMP Amendment. The Design-Build Period Work Schedule anticipates a negotiating period of approximately four weeks. The Design-Builder may, but is not obligated 559
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to, continue the development of the Project design during the negotiating period in order to preserve the continuity of the design effort by the design engineers. Any costs and expenses by the Design-Builder during the negotiating period in furtherance of the Project, including the cost and expense of the design team, shall be incurred at the sole risk of the Design-Builder and shall not be subject to payment or reimbursement by the Town unless the Town specifically agrees to the payment of such costs and expenses in connection with the negotiation and execution of a GMP Amendment, in which case such costs and expenses shall constitute Design-Build Period Costs hereunder. Any such costs shall be payable in the same manner as Design-Build Period Costs are payable following the GMP Amendment Date or in any other manner agreed to by the parties in executing the GMP Amendment.
8.4. UNALLOWABLE COSTS
8.4.1 No Payment Obligation.
Notwithstanding any other provision of the Contract Documents, the Town shall have no obligation to pay the Design-Builder any Unallowable Costs.
8.4.2 Unallowable Costs Defined.
“Unallowable Costs” means:
(a) Premiums for Required Insurance other than Builder’s Risk and other Project specific insurance policies.
(b) In the event of damage to or destruction of any portion of the Project that is caused by Design-Builder Fault, cost of repair or reconstruction not covered by the Required Insurance policies on account of deductibles or exceedances under the policy’s stated coverage limitations.
(c) Costs for wages, salaries and professional services fees, to the extent they exceed wage and salary rates or fees customarily paid for similar services by comparably qualified workers and professionals in the Town or in excess of the rates set forth in the Attachments to this Appendix, except for such excess costs for wages, salaries and professional services fees that are expressly approved by the Town following written request from the Design-Builder for approval of such specific wages, salaries and professional services fees, including a specific explanation of the reasons therefor.
(d) Any costs incurred in handling disputes or litigation with Subcontractors or any other third party.
(e) Salaries and other compensation for the Design-Builder’s personnel stationed at the Design-Builder’s principal office or branch offices other than the Project Sites, except as provided in Section 8.3.3 of this Appendix.
(f) Expenses of the Design-Builder’s principal office or branch offices other than the Project Sites, except as provided in Section 8.3.3 of this Appendix. (g) Overhead, office and general expenses at any location, except as provided for in Section 8.3.3 of this Appendix.
(h) [The cost of the capital (including interest on capital) used in the performance of the Design-Build Period Work or otherwise.] [Note: To be revisited once payment 560
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terms for Design-Build Work is finalized based upon input from Grant funding agency.]
(i) Rental costs of machinery and equipment, except as specifically provided in Section 8.3.4(d) of this Appendix.
(j) Costs incurred as a result of the negligence or willful misconduct of the DesignBuilder, any Affiliate, any Subcontractor or any other party performing any aspect of the Design-Build Period Work.
(k) Fines, penalties, sanctions or impositions assessed or imposed by any Governmental Body as a result of Design-Builder Fault, including violations of or non-compliance with any Governmental Approval.
(l) Any cost relating to the Design-Builder’s indemnification obligations hereunder. (m) Travel and subsistence expenses, except as specifically allowed pursuant to provided in Section 8.3.3(j).
(n) Legal costs incurred for any reason.
(o) The fees of independent experts hired to assist in connection with dispute resolution.
(p) Amounts required to be paid the Design-Builder or any Subcontractor for federal or State income, franchise or other business Taxes, other than state sales Taxes or tariffs on materials and equipment incorporated in the Project. (q) Any costs that would cause the Guaranteed Maximum Price to be exceeded.
8.5. GENERAL CONDITIONS FEE
The “General Conditions Fee” is an amount equal to [_____]% of the Design-Build Period Costs (other than sales taxes or tariffs). [Note: General Conditions Fee to be agreed to on the GMP Amendment Date.] The General Conditions Fee is an amount attributable to Design-Build Period Work General Conditions Costs, as described in Attachment 8A, all of which shall be paid by the Design-Builder without reimbursement hereunder and irrespective of the sufficiency of the General Conditions Fee. The General Conditions Fee includes consideration for all costs and expenses paid or incurred by the Design-Builder, as well as all profit, risk, mark-up and general and indirect overhead, in connection with the Design-Build Period Work General Conditions Costs. The General Conditions Fee shall be adjusted in the event the Scheduled Substantial Completion Date is extended as provided in Article 14 of this Design-Build Contract.
8.6. DESIGN-BUILDER FEE
The “Design-Builder Fee” is an amount equal to 12% of the Design-Build Period Costs (other than sales taxes or tariffs). The Design-Builder Fee is an amount attributable to profit, risk, mark-up and general or indirect overhead with respect to the Design-Build Work, and includes an amount attributable to the cost of Required Insurance other than Builder’s Risk and other Project specific insurance policies.
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8.7. GUARANTEED MAXIMUM PRICE
8.7.1 Guaranteed Maximum Price Generally.
The Town shall pay the Design-Builder the Design-Build Price for the Design-Build Period Work, subject to the Guaranteed Maximum Price calculated in accordance with this Section 8.7. The “Guaranteed Maximum Price” shall be the sum of (1) the Base Guaranteed Maximum Price, and (2) the Base Guaranteed Maximum Price Adjustments. The Guaranteed Maximum Price represents the absolute limit of the total of all amounts payable to the Design-Builder by the Town for the performance of the Design-Build Period Work. In the event additional amounts are required to be expended over and above the Guaranteed Maximum Price to perform the DesignBuild Period Work and achieve Substantial Completion and Final Completion, liability for and payment of such additional amounts shall be the sole responsibility of the Design-Builder. The Town shall not be liable for any such amounts, and the Design-Builder shall not pursue any claim for any such additional amounts against the Town. Notwithstanding any reference in this Design-Build Contract to the terms “mark-up” or “profit”, the Design-Builder acknowledges that (1) the Town is not guaranteeing the Design-Builder any profit, a particular level of profit, or the avoidance of any loss in the overall performance of the Design-Build Period Work, and (2) the obligation of the Design-Builder to complete the Design-Build Period Work may result in a loss or in a mark-up and profit that is less than the mark-up and profit amounts anticipated by the Design-Builder in proposing its Design-Builder Fee, in making its GMP Submittal, and in entering into this Design-Build Contract.
8.7.2 Base Guaranteed Maximum Price.
The “Base Guaranteed Maximum Price” shall be specified in the GMP Amendment. Except as provided in Section 8.7.3 of this Appendix, the Base Guaranteed Maximum Price shall not be increased for any reason. [Note: The Base Guaranteed Maximum Price shall be the Guaranteed Maximum Price as of the GMP Amendment Date minus the Town Allowance.]
8.7.3 Base Guaranteed Maximum Price Adjustments.
The adjustments to the Base Guaranteed Maximum Price provided for in this Section 8.7.3 constitute the “Base Guaranteed Maximum Price Adjustments”, and each adjustment shall be reflected in a Contract Administration Memorandum. The Base Guaranteed Maximum Price shall be adjusted (increased or decreased) only to reflect adjustments required on account of:
(a) Uncontrollable Circumstances generally, as provided in Article 14 of this DesignBuild Contract); (b) Baseline Design Requirements Changes made under Section 6.8 of this DesignBuild Contract; or (c) Work Change Directives made under Section 6.10 of this Design-Build Contract.
8.7.4 Value of Base Guaranteed Maximum Price Adjustments The value of a Base Guaranteed Maximum Price Adjustment shall be determined as follows:
(a) Where the Design-Build Work involved is covered by unit prices contained in the Contract Documents, by application of such unit prices to the quantities of the items involved; or
(b) To the extent unit prices are not applicable, by a mutually agreed amount. 562
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Base Guaranteed Maximum Price Adjustment may provide for markup by a Subcontractor on work performed by a direct lower tier Subcontractor where Design-Build Period Work is performed through Subcontracts. Any such Subcontractor markup shall not exceed 5%.
8.8. TOWN ALLOWANCE
The Town Allowance in the amount of $[__________] may be used by the Town to address the occurrence of compensable Uncontrollable Circumstances. The Design-Builder has no right to the Town Allowance unless expressly approved by the Town. Any amount not expended against the Town Allowance shall be solely for the account of the Town and the Design-Builder shall not be entitled to share in any unexpended balance thereof. The Base Guaranteed Maximum Price does not include the Town Allowance. The [Town shall keep]/[Design-Builder shall keep and provide the Town with] an ongoing record of the original amount of the Town Allowance, all uses thereof under this Appendix, and the remaining balance of the Town Allowance. [Note: To be negotiated as part of the GMP Amendment.]
8.9. DESIGN-BUILDER CONTINGENCY
The Design-Builder Contingency in the amount of $[__________] may be used by the DesignBuilder for payment of Design-Build Costs only as provided in Attachment 8D to this Appendix.
The Base Guaranteed Maximum Price includes the Design-Build Contingency as set forth in the Anticipated Design-Build Period Work Cost Schedule.
[Note: To be negotiated as part of the GMP Amendment.]
8.10. SPECIFIED PROJECT RISK CONTINGENCY
8.10.1 Specified Project Risk Contingency Amount
The Specified Project Risk Contingency in the amount of $[__________] may be used by the DesignBuilder to address the occurrence of certain of the risks assumed by the Design-Builder under this Design-Build Contract as specified below (each, a “Specified Project Risk”): [__________].
Any amount not expended against the Specified Project Risk Contingency shall be solely for the account of the Town and the Design-Builder shall not be entitled to share in any unexpended balance thereof. The Base Guaranteed Maximum Price includes the Specified Project Risk Contingency as set forth in the Anticipated Design-Build Period Work Cost Schedule. [Note: To be negotiated as part of the GMP Amendment.]
8.10.2 Use of the Specified Project Risk Contingency
In the event the cost for completing Design-Build Period work arising in connection with a Specified Project Risk described in any particular Anticipated Design-Build Period Work Cost Schedule line item relating to such cost, exceeds the Anticipated Design-Build Period Work Cost Schedule dollar amount listed for such line item, and such exceedance is due to an occurrence of such Specified Project Risk, the Design-Builder shall have the right to request compensation for such excess amount from any remaining balance in the Specified Project Risk Contingency.
The Town shall respond to any such request within 15 days of receipt of such request. If the Town approves such request, which approval shall not be unreasonably withheld, then the Design-Builder shall receive such excess amounts from any remaining balance in the Specified Project Risk Contingency; provided, however, that the Design-Builder shall not need prior written approval for amounts under $50,000. If and when the Specified Project Risk Contingency has 563
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been fully used in compensating the Design-Builder for such excess amounts, the Design-Builder shall not be entitled to any compensation for costs of Design-Build Work arising in connection with a Specified Project Risk exceeding the Anticipated Design-Build Period Work Cost Schedule line item relating to such cost, notwithstanding the fact that the Design-Builder has paid or incurred Design-Build Period Costs arising in connection with such Specified Project Risk in excess of such line item in the Anticipated Design-Build Period Work Cost Schedule; provided, however, that upon Final Completion the Design-Builder shall be entitled to request and to receive compensation for such excess Design-Build Period Costs arising in connection with such Specified Project Risk to the extent that payment of such costs does not cause the Design-Build Period Costs to exceed the Guaranteed Maximum Price.
The Design-Builder shall keep and provide the Town with an ongoing record of the original amount of the Specified Project Risk Contingency, all uses thereof under this Appendix, and the remaining balance of the Specified Project Risk Contingency at any time. The Design-Builder shall provide the Town with notice of all anticipated charges against the Specified Project Risk Contingency, and shall provide the Town as part of the monthly status report all reasonably foreseeable potential uses of the Specified Project Risk Contingency in the upcoming three month period. Any use of the Specified Project Risk Contingency must be clearly identified in the associated Payment Request. Any dispute between the Town and the Design-Builder regarding the reallocation and use of the Design-Builder Contingency shall be resolved (with both parties using good faith efforts to accelerate the resolution of such dispute) in accordance with Article 11 of this Design-Build Contract.
8.11. SHARED SAVINGS AMOUNT
In the event that upon Final Completion, the Design-Build Price is less than an amount equal to: (1) the Guaranteed Maximum Price, minus (2) all amounts not expended against the Town Allowance or the Specified Project Risk Contingency, both of which shall be for the account of the Town, minus (3) the used Design-Builder Contingency, as each such amount is finally determined in accordance with this Appendix, the Town shall pay the Design-Builder an amount equal to [_____]% of the difference between the Guaranteed Maximum Price (minus (a) all amounts not expended against the Town Allowance or the Specified Project Risk Contingency and (b) the used Design-Builder Contingency) and the Design-Build Price (the “Shared Savings Amount”). The Design-Builder shall not be entitled to share in any unexpended balance of the Town Allowance or the Specified Project Risk Contingency. The Shared Savings Amount shall be paid as part of the final payment to the Design-Builder in accordance with Section 9.5 (Payment Upon Final Completion) of this Design-Build Contract. The Town’s determination of the Shared Savings Amount shall be final and binding upon the Design-Builder. [Note: Shared Savings TBD subject to approval by the Granting Agencies.]
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ATTACHMENT 8A
DESCRIPTION OF GENERAL CONDITIONS COSTS
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Description Of Design-Build Period Work General Conditions Costs 3840090.7 047018 CTR
ATTACHMENT 8A
DESCRIPTION OF DESIGN-BUILD PERIOD WORK GENERAL CONDITIONS COSTS
GENERAL CONDITIONS COSTS
In connection with the Design-Build Period Work, the Design-Builder is responsible for the Design-Build Period Work General Conditions Costs, as well as the performance of the related obligations, identified in this Attachment 8A. The Design-Builder’s compensation for the DesignBuild Period Work General Conditions Costs is limited to the General Conditions Fee. DesignBuild Period Costs shall not include any Design-Build Period Work General Conditions Costs.
Design-Build Period Work General Conditions Costs consist solely and exclusively of costs incurred for the following items with respect to the Design-Build Period Work:
(1) Design-Builder Employee Supervisory and Administrative Personnel Costs (a) Hourly costs of wages or salaries of all Design-Builder’s supervisory and administrative personnel engaged in the performance of the Design-Build Period Work but only for that portion of their time required for the Design-Build Period Work, including but not limited to the Project Manager (Project Manager), Construction Manager, Superintendent(s), and those responsible for managing and implementing Design-Builder’s scheduling, cost control, billing, surveying, QA/QC and Health and Safety expenses. Only the Design-Builder’s craft labor shall be excluded from this category.
(b) Hourly costs of wages or salaries of the Design-Builder’s supervisory and administrative personnel engaged off of the Project Site at factories, workshops or on the road, to assist in the coordination, production or transportation of material or equipment necessary for the Design-Build Period Work, but only for that portion of their time required for the Design-Build Period Work. (c) Hourly costs of wages or salaries of the Design-Builder’s personnel stationed at the Design-Builder’s principal or branch offices and performing Design-Build Period Work.
(d) Costs reasonably paid or incurred by the Design-Builder for employee benefits, premiums, taxes, insurance, contributions and assessments for supervisory and administrative personnel required by law, collective bargaining agreements and, for supervisory and administrative personnel not covered by such agreements, customary benefits such as sick leave, medical and health benefits, holidays, vacations and pensions paid by the Design-Builder, excluding bonuses, to the extent such costs are based on wages and salaries paid to supervisory and administrative personnel of the Design-Builder included in the Design-Build Period Costs under item (1)(a-c) of this Attachment.
(e) The reasonable cost of travel, accommodations and meals for the Design-Builder’s personnel necessarily and directly incurred in connection with the performance of the Design-Build Period Work.
(2) Field Office and Construction Supply Costs for Design-Builder Staff Only • Design-Builder field office mobilization and demobilization • Office trailer rental
• Office furniture and equipment
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Description Of Design-Build Period Work General Conditions Costs 3840090.7 047018 CTR
• Office janitorial
• Document reproduction services (off-site or custom)
• Copy machines, fax machines, printers, scanners and paper shredders • Office computers, software and maintenance
• Office telephones, telephone and internet services, and all job site communication for the Project
• Accounting and data processing costs
• Jobsite radios/cellular phones
• Postage, courier, and express delivery
• Scheduling expenses
• Job travel, including fuel and vehicle
• Job meeting expenses
• Temporary parking and laydown areas
• Storage facilities, both on and off site
• Small tools, tool shed and consumables
• Surveying equipment and supplies
• Office supplies
• Partnering sessions (Design-Build Period Work only)
• Project redline drawings
• Record drawings and specifications
• Project specific signage
• Reference manuals
• Employee identification system
(3) Temporary Amenities (unless otherwise indicated, includes hookup costs, metering, and consumption costs)
• Incidental construction equipment, fuel, drayage, and parking (on and off-site) • Temporary toilets
• Temporary fire protection
• Site security
• Traffic control equipment rental
• Fencing, barricades, partitions, protected walkways, and other measures used for traffic control on-site
• Temporary water distribution and meters
• Temporary power generation
• Temporary and emergency lighting
• Temporary weather protection
• Site erosion control
• Street cleaning
• Drinking water
• Temporary construction facilities and services
• Temporary heat and ventilation
(4) Confined Space Entry
• Personnel and monitoring protective equipment
• Standby personnel
• All other costs
(5) Site Cleanup
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• Daily site cleanup, dumpsters and garbage/recyclables disposal • Cleanup at Substantial Completion
(6) Design-Builder Construction Trade Training Program
(7) Health and Safety Program (Excluding Incentives)
• PPE for staff and visitors
• First aid
• Fall protection
• Safety program administration and training
• Safety incentives
• Drug testing
• Safety signage
(8) Project Information and Documentation
• Photographs to document pre-construction conditions
• Project progress photos
Any General Conditions Costs that is subcontracted shall be payable from the General Conditions Fee. The Design-Builder shall make such payments to the extent such Subcontractors are involved in Design-Builder’s affirmative action efforts. 568
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ATTACHMENT 8B
BILLING RATES FOR DESIGN-BUILD PERIOD WORK PROFESSIONAL SERVICES
PERSONNEL
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ATTACHMENT 8C
BILLING RATES FOR SELF-PERFORMED CONSTRUCTION WORK
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ATTACHMENT 8D
ANTICIPATED DESIGN-BUILD PERIOD WORK COST SCHEDULE AND DESIGN-BUILDER
CONTINGENCY
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Anticipated Stage 2 Design-Build Period Cost Schedule
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ATTACHMENT 8D
ANTICIPATED DESIGN-BUILD PERIOD WORK COST SCHEDULE AND DESIGN-BUILDER
CONTINGENCY
GENERAL
The purpose of this Attachment is (1) to define the requirements for the Design-Builder’s preparation of the Anticipated Design-Build Period Work Cost Schedule and the Design-Builder Contingency, which will be used as the basis for payments of the Design-Build Price pursuant to Article 9 of this Design-Build Contract, and (2) to describe the manner in which payment of the Design-Build Price will be made based on the Anticipated Design-Build Period Work Cost Schedule and the Design-Builder Contingency.
EARLY DESIGN-BUILD WORK PACKAGES
As provided in Section 5.7(F) of this Design-Build Contract, the parties intend that each Early Design-Build Work Package Amendment will contain complete pricing for the Design-Build Work covered by the Early Design-Build Work Package, and that an estimated Design-Build Period Cost schedule and contingency will be established for such Early Design-Build Work Package separate and apart from the Anticipated Design-Build Period Work Cost Schedule and DesignBuilder Contingency established on the GMP Amendment Date for the balance of the DesignBuild Work.
TOTAL ANTICIPATED DESIGN-BUILD PERIOD WORK COST SCHEDULE AMOUNT The sum of all amounts comprising the line items in the initial Anticipated Design-Build Period Work Cost Schedule shall be equal to the total amount of the reasonably estimated direct costs of achieving Substantial Completion and Final Completion, as such total amount of reasonably estimated costs is negotiated by the parties pursuant to Section 5.8(C) of this Design-Build Contract. The total Anticipated Design-Build Period Work Cost Schedule amount, and the line items in the Anticipated Design-Build Period Work Cost Schedule, shall be adjusted appropriately by agreement of the parties to account for Base Guaranteed Maximum Price Adjustments.
DESIGN-BUILDER CONTINGENCY AMOUNT
The Design-Builder Contingency amount shall be a single stated dollar amount equal to the amount negotiated by the parties pursuant to Section 5.8(C)(2) of this Design-Build Contract.
SUM OF THE ANTICIPATED DESIGN-BUILD PERIOD WORK COST SCHEDULE AMOUNT,
THE DESIGN-BUILDER FEE AMOUNT, THE GENERAL CONDITIONS FEE AMOUNT AND THE
DESIGN-BUILDER CONTINGENCY AMOUNT
The sum of the total Anticipated Design-Build Period Work Cost Schedule amount, the associated Design-Builder Fee amount, the associated General Conditions Fee amount, the Design-Builder Contingency amount and the Specified Project Risk Contingency amount shall be equal to the Base Guaranteed Maximum Price.
PREPARATION OF THE ANTICIPATED DESIGN-BUILD PERIOD WORK COST SCHEDULE As part of the GMP Submittal, the Design-Builder shall prepare an Anticipated Design-Build Period Work Cost Schedule identifying, on a line item basis, costs of major items of Design-Build 572
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Work and other costs in accordance with this Attachment, and which shall include a Town Allowance, a Design-Builder Contingency and a Specified Project Risk Contingency, each separately stated as a block amount.
The Anticipated Design-Build Period Work Cost Schedule shall be consistent with the work scope and cost breakdown structure presented in the GMP Submittal, as negotiated and agreed to by the Town. The Anticipated Design-Build Period Work Cost Schedule shall assign prices to major elements of the Design-Build Work based on costs associated with scheduled activities for each such element.
The Anticipated Design-Build Period Work Cost Schedule shall:
(a) Be broken down by each major component of the Project, in accordance with the approved WBS, and show each specification division within each structure; and (a) Show the division of work between the Design-Builder and each of the Subcontractors.
The Design-Builder shall provide supporting data, including certified payrolls, as requested by the Town for any Anticipated Design-Build Period Work Cost Schedule item. The final Anticipated Design-Build Period Work Cost Schedule must be approved by the Town.
USE OF THE DESIGN-BUILDER CONTINGENCY
The Design-Builder Contingency shall be used for payment of Design-Build Period Costs only as provided in this Section. [Note: Use of line item savings and use of the Design-Builder Contingency will be subject to any conditions or limitations imposed by the Grants, and are TBD for the California State Water Resources Control Board grant.] In the event the cost for completing Design-Build Period Work described in any particular Anticipated Design-Build Period Work Cost Schedule line item exceeds the Anticipated DesignBuild Period Work Cost Schedule dollar amount listed for such line item, the Design-Builder shall have the right to request compensation for such excess amounts from any remaining balance in the Design-Builder Contingency. The Town shall respond to any such request within 15 days of receipt of such request. If the Town approves such request, which approval shall not be unreasonably withheld, then the Design-Builder shall receive such excess amounts from any line item savings and only after exhaustion of all line item savings amounts, from any remaining balance in the Design-Builder Contingency; provided, however, that the Design-Builder shall not need prior written approval for amounts under $50,000. If and when the Design-Builder Contingency has been fully used in compensating the Design-Builder for such excess amounts, the Design-Builder shall not be entitled to any compensation for costs of Design-Build Work exceeding the Anticipated Design-Build Period Work Cost Schedule line item relating to such cost (except as provided below in “Use of Line Item Savings”), notwithstanding the fact that the Design-Builder has paid or incurred Design-Build Period Costs in excess of such line item in the Anticipated Design-Build Period Work Cost Schedule; provided, however, that upon Final Completion the Design-Builder shall be entitled to request and to receive compensation for such excess Design-Build Period Costs to the extent that payment of such costs does not cause the Design-Build Period Costs to exceed the Guaranteed Maximum Price.
The Design-Builder shall keep and provide the Town with an ongoing record of the original amount of the Design-Builder Contingency, all uses thereof under this Appendix, and the remaining balance of the Design-Builder Contingency at any time. The Design-Builder shall provide the Town with notice of all anticipated charges against the Design-Builder Contingency, 573
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and shall provide the Town as part of the monthly status report all reasonably foreseeable potential uses of the Design-Builder Contingency in the upcoming three month period. Any use of the Design-Builder Contingency must be clearly identified in the associated Payment Request.
USE OF LINE ITEM SAVINGS
In administering payment of the Design-Build Price based on the Anticipated Design-Build Period Work Cost Schedule line items, the parties acknowledge that the Design-Build Period Costs associated with any particular line item may be less than the dollar amount provided for such line item in the Anticipated Design-Build Period Work Cost Schedule. If the Design-Build Period Costs associated with a particular Anticipated Design-Build Period Work Cost Schedule line item are less than the dollar amount provided for such line item in the Anticipated Design-Build Period Work Cost Schedule, subject to the following sentence, the dollar value associated with the line item cost underage shall be available to be paid to the Design-Builder in the event the DesignBuild Period Costs associated with another particular line item exceed the Anticipated DesignBuild Period Work Cost Schedule dollar amount listed for such line item. Such line item savings amounts shall be in addition to any Design-Builder Contingency amounts that may be available to pay such Anticipated Design-Build Period Work Cost Schedule line item excess costs; provided, however, that in any event line item savings shall be used prior to Design-Builder Contingency amounts.
DAMAGE TO THE PROJECT AND INSURANCE RECOVERIES
The costs of repairing any damage to the Project constitute Design-Build Period Costs, and (1) are payable to the Design-Builder as part of the Design-Build Period Costs, as provided in Section 8.3 of this Appendix, (2) shall result in an appropriate revision of the Anticipated Design-Build Period Work Cost Schedule, and (3) shall result in a Base Guaranteed Maximum Price Adjustment, as provided in Section 8.7.3 of this Appendix. All recoveries under policies of Required Insurance on account of any damage to the Project shall be applied to the payment of such repair costs, as provided in Section 6.17 and Article 13 of this Design-Build Contract.
SUBCONTRACTOR AND SURETY RECOVERIES
A substantial portion of the Construction of the Project is expected to be performed by Construction Subcontractors. The risks of delay and non-performance by Subcontractors are borne by the Design-Builder, and costs incurred by the Design-Builder that result from the occurrence of such risks constitute Design-Build Period Costs payable by the Town from the Design-Builder Contingency hereunder, subject to the Guaranteed Maximum Price. All payments from the Design-Builder Contingency for costs incurred as a result of the occurrence of the risk of Subcontractor delay or non-performance shall be separately identified and recorded.
In the event the Design-Builder, in the exercise of its mitigation duties under this Design-Build Contract, receives any judgment or settlement awards or otherwise makes any financial recoveries from Subcontractors or their guarantors or sureties on account of any such delays or non-performance, the amounts so received (net of reasonable enforcement costs), whether before or after Final Completion, shall be paid by the Design-Builder first to the Town, up to the amount of any Design-Builder Contingency payments made due to the occurrence of such risks. Any remaining amounts then may be retained by the Design-Builder for its own account. The obligation of the Design-Builder to take such mitigation measures and to make such payments to the Town shall survive termination of this Design-Build Contract. 574
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APPENDIX 9
SUBSTANTIAL COMPLETION
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APPENDIX 9
SUBSTANTIAL COMPLETION
9.1. PURPOSE
The purpose of Substantial Completion is to demonstrate that the Project complies with all Contract Standards. This Appendix sets forth certain supplementary requirements for Substantial Completion.
9.2. RELATIONSHIP TO BASELINE DESIGN DOCUMENTS
The Baseline Design Documents applicable to the requirements of this Appendix are set forth in Appendix 4.
9.3. SUBSTANTIAL COMPLETION PROCEDURES
9.3.1 Substantial Completion Procedures Generally
The intent of the Substantial Completion Procedures (as defined below) are to demonstrate that the installed facilities, systems, and the Project as a whole are ready to perform in accordance with the requirements of the Contract Documents and the Contract Standards.
9.3.2 Construction Testing
To confirm compliance with the testing (including but not limited to air tests, Mandrel tests, and the testing of materials described in subsection 6.10.5 of Appendix 6) required by the Contract Documents, including but not limited to Appendix 4, the Design-Builder shall submit certified reports. The certified reports shall be from the appropriate certifying entity demonstrating that construction complies with the Contract Documents and has satisfactorily passed relevant testing. For general construction, the reports will be submitted by a professional engineer. For valves and any mechanical equipment, the certifications shall be factory certifications.
9.3.3 Observation of Substantial Completion Procedures
The Town reserves the right to observe and inspect the Project testing. The Design-Builder shall provide at least five days’ notice to the Town prior to commencement of any tests. The DesignBuilder shall also ensure that each material manufacturer representative that is required to witness such test is present.
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APPENDIX 10
INSURANCE REQUIREMENTS
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APPENDIX 10
INSURANCE REQUIREMENTS
10.1. GENERAL REQUIREMENTS
(a) The Town of Paradise (the “Town”) reserves the right to approve or reject the insurance provided based upon the insurer (including financial condition), terms and coverage, the Certificate of Insurance (COI), and/or endorsements. The insurance must be provided by an insurer with a rating of (A-) VII or higher in the A.M. Best’s Key Rating Guide (http://www.ambest.com/home/default.aspx), and licensed to do business in the State of California. By requiring the insurance herein, the Town does not represent that the insurance coverages and limits will necessarily be adequate to protect the Design-Builder and such coverages and limits shall not be deemed as a limitation on the Design-Builder’s liability under the indemnities granted to the Town in this Design-Build Contract. (b) The Design-Builder shall keep the Required Insurance in force during the entire Term and for thirty (30) calendar days after the expiration of the Term, unless otherwise provided herein.
(c) The liability insurance policies required by this section shall:
(1) For insurance policies other than for professional liability or workers’ compensation, contain a “severability of insureds,” “separation of interest,” or “cross liability” provision.
(2) Be primary and non-contributory insurance to any insurance coverage or self-insurance program the Town may maintain.
(3) For insurance policies other than for professional liability or workers’ compensation, contain a Waiver of Subrogation clause in favor of the Town.
(4) Other than professional liability, reflect coverage on an “occurrence”, not “claims-made” policy form.
(d) The Design-Builder shall provide the Town notice of any cancellation or nonrenewal of this required insurance within 30 calendar days. (e) The Design-Builder shall forward to the Town, full and original certificates of insurance with endorsements required by this Appendix.
(f) The Design-Builder shall not begin work under the Design-Build Contract until the required insurance has been obtained and approved by the Town. (g) Failure on the part of the Design-Builder to obtain and maintain the insurance as required by this section shall constitute a material breach of the Design-Build Contract, upon which the Town may, after giving five business day notice to the Design-Builder to correct the breach, immediately terminate the Design-Build Contract or, at its discretion, procure or renew such insurance and pay any and all premiums in connection therewith; with any sums so expended to be repaid to the Town by the Design-Builder upon demand, or at the sole discretion of the Town, offset against funds due the Design-Builder from the Town. 578
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(h) All costs for insurance shall be incidental to and included in the unit or lump sum prices of the Design-Build Contract and no additional payment will be made by the Town to the Design-Builder.
(i) For all liability insurance policies required by this Section, the Town, including its officers, elected officials, employees, agents, and volunteers, and any other entities as required by the Design-Build Contract, shall be named as additional insured(s) by amendatory endorsement, EXCEPT Professional Liability (if applicable), Workers Compensation, Owner’s and Design-Builder’s Protective Liability, and Railroad Protective Liability.
(j) Except for the builders’ risk insurance required pursuant to V(I) of this Appendix 10, the Design-Builder may provide the insurance coverages required pursuant to this Appendix 10 through the general corporate policies of the Design-Builder or its affiliates. In such case, the general corporate policies shall meet the applicable requirements of this appendix.
10.2. EVIDENCE OF INSURANCE
The Design-Builder shall deliver a COI and endorsements for each policy of insurance meeting the requirements set forth herein when the Design-Builder delivers the signed Design-Build Contract for the work to the Town. The certificate and endorsements must conform to the following requirements:
(a) An ACORD certificate or a form determined by the Town to be equivalent. (b) Copies of all endorsements showing the policy number and naming the Town as an additional insured.
(c) Except for insurance policies other than for professional liability or workers’ compensation, the endorsement is to state that the insurance is primary and non-contributory over any Town insurance or self-insurance. (d) For insurance policies for general liability, the endorsement is to extend “Products/Completed Operations” coverage to the Town as an additional insured. (e) A statement of additional insured status on an ACORD COI shall not satisfy this requirement.
(f) Any other amendatory endorsements to show the coverage required herein.
10.3. CERTIFICATE REQUIREMENTS SPECIFIC REPRESENTATIONS The following must be indicated on the COI:
(a) The Town is named as an additional insured (“with respect to the Design-Build Contract” or “for any and all work performed with the Town” may be included in this statement) for insurance policies for General Liability and Automobile Liability.
(b) “This insurance is primary and non-contributory over any insurance or selfinsurance the Town may carry” (“with respect to the Design-Build Contract” or “for any and all work performed with the Town” may be included in this statement) for insurance policies for General Liability and Automobile Liability. 579
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(c) A Waiver of Subrogation in favor of the Town for General Liability and Automobile Liability.
(d) Self-Insured Retention and applicable deductible limits must be disclosed on the COI and be consistent with good industry practice.
(e) Contract or Permit number and the Town Department.
(f) All coverage other than professional liability, Cyber/Privacy & Security, and Pollution Liability must be written on “occurrence” form and not “claims-made” form.
(g) Reflect the existence and form numbers of all required endorsements.
10.4. SUBCONTRACTORS
It is the Design-Builder's responsibility to cause each Subcontractor to obtain and maintain adequate liability insurance coverage. The Design-Builder shall provide evidence of such insurance upon the Town’s request.
10.5. CERTIFICATE REQUIREMENTS FOR COVERAGES AND LIMITS The insurance shall provide the minimum coverages and limits set forth below. Providing coverage in these stated minimum limits shall not be construed to relieve the Design-Builder from liability in excess of such limits. None of the policies or coverage required by this section shall be subject to a deductible or self-insured retained limit of more than $10,000 unless first approved in writing by the Town Contracting Department, which self-insured retention may be satisfied by either the named insured or the Town.
A. General Liability Insurance
(1) Commercial General Liability (CGL) Insurance
The CGL insurance policy must provide limits not less than $1,000,000 each occurrence and $2,000,000 annual aggregate. A deductible of $25,000 for Commercial General Liability Insurance is approved by the Town.
The CGL policy shall be written on an "occurrence", not "claims-made", basis and shall include the following coverage:
a) Must use (Insurance Services Office (ISO) form CG0001(04-13) or its equivalent).
b) Products Hazard/Completed Operations.
c) Personal/Advertising Injury.
d) Contractual Liability.
e) Explosion, Collapse, or Underground Property Damage. g) Blasting (only required when the Design-Builder's work under this Design-Build Contract includes exposures to which this specified coverage responds).
h) If Design-Builder is performing work within 50 feet of a railroad right of way, the General Liability policy shall be endorsed to eliminate the Contractual Liability exclusion pertaining to work 580
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within 50 feet of a railroad right of way using ISO form CG2417(10- 01) or equivalent.
i) Include the Town as additional insured and:
1. Use ISO forms CG2010(04-13) and CG2037(04-13) or
equivalent for Design-Builders performing work on behalf of the Town and name the Town as an additional insured for ongoing and completed operations.
2. Use ISO form CG2012(04-13) or equivalent for Permits and name the Town as an additional insured.
3. Use ISO form CG2026(04-13) or equivalent for Facility Use Agreements and name the Town as an additional insured.
4. Blanket additional insured provisions within a policy form will be accepted in lieu of the specific additional insured
endorsement forms specified herein. However, a blanket
additional insured endorsement shall provide the equivalent coverage provided by specific additional insured endorsements specified herein.
(2) Marine General Liability (MGL) Insurance (only applicable in the event Design-Builder will utilize rented or owned vessels on a waterway to perform Design-Build Work.)
The MGL policy must provide limits no less than $1,000,000 each occurrence and $2,000,000 annual aggregate. The MGL policy shall be provided before the commencement of Design-Build Period Work.
MGL insurance must have no exclusions for non-owned watercraft. A policy of MGL Insurance shall be written on an "occurrence", not "claims-made", basis and shall include the following coverage:
a) A per project aggregate policy limit.
b) Products Hazard/Completed Operations- for a period of one year following final acceptance of the work.
c) Personal/Advertising Injury.
d) Contractual Liability.
If Design-Builder is performing work within 50 feet of a railroad right of way, the General Liability policy shall be endorsed to eliminate the Contractual Liability exclusion pertaining to work within 50 feet of a railroad right of way using ISO form CG2417(10-01) or equivalent.
e) Include the Town as an additional insured for the Design-Build Contract and contracts both ongoing and for completed operations. (3) Protection and Indemnity (P&I) Insurance
The Design-Builder shall procure and maintain P&I insurance. This insurance must cover all claims with respect to injuries or damages to persons or property, arising out of the use, operation or ownership of boats, ships, or vessels with limits of liability not less than One Million Dollars ($1,000,000) each occurrence. If required, the Design-Builder shall procure and maintain commercial umbrella liability insurance covering claims for these risks. The P&I policy shall be provided before the commencement of the Design-Build Period Work.
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B. Commercial Automobile Liability (CAL) Insurance
The Design-Builder shall obtain and keep in force during the term of the Contract, a policy of CAL insurance coverage, providing bodily injury coverage and property damage coverage for owned (if any), non-owned, hired, and leased vehicles.
The Design-Builder must also maintain an MCS 90 endorsement or equivalent and a CA 9948 endorsement or equivalent if “Pollutants” are to be transported. CAL policies must provide limits not less than $1,000,000 each accident for bodily injury and property damage.
Must use ISO form CA 0001 or equivalent.
C. Workers' Compensation
(1) State of California Workers’ Compensation
The Design-Builder shall comply with Workers' Compensation coverage as required by California Labor Code Section 3700.
D. Employers’ Liability (EL) (Stop-Gap) Insurance
The Design-Builder shall maintain EL coverage with limits not less than $1,000,000 each employee, $1,000,000 each accident, and $1,000,000 policy limit.
E. Professional Liability Insurance (PLI)
The Design-Builder and/or its Subcontractors shall provide evidence of PLI covering professional errors and omissions. Such policy must provide minimum limits of $2,000,000 per claim and $4,000,000 aggregate. If the scope of such design-related professional services includes work related to pollution conditions, the PLI policy shall include Pollution Liability coverage. If provided on a “claims-made” basis, such coverage shall be maintained by policy renewals or an extended reporting period endorsement for not less than five years following the end of the Contract.
F. Excess or Umbrella Liability (UL) Insurance
The Design-Builder shall provide Excess or UL coverage at limits of not less than $5,000,000 per occurrence and $10,000,000 in the aggregate.
This Excess or UL coverage shall apply, at a minimum, to the CGL, EL and Automobile Liability forms required herein.
G. Pollution Liability (PL) Insurance
The Design-Builder shall procure and maintain a PL or Environmental Liability policy providing coverage, including investigation and defense costs, for bodily injury and property damage, including loss of use of damaged property or of property that has been physically damaged or destroyed. Such coverage shall provide both on-site and off-site cleanup costs and cover gradual and sudden pollution, and include in its scope of coverage the Town damage claims for loss arising out of the Design582 Town of Paradise Sewer Project Appendix 10
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Builder’s work with limits not less than $1,000,000 each occurrence and $2,000,000 aggregate. This policy shall include Environmental Resource Damage coverage. A deductible of $25,000 for Pollution Liability Insurance is approved by the Town.
Such insurance may be provided on an “occurrence” or “claims-made” basis. If such coverage is provided on a “claims-made” basis, the following additional conditions must be met:
(1) The policy shall not exclude coverage for Hazardous Substance Removal. (2) The policy must contain no retroactive date, or the retroactive date must precede the commencement date of this contract.
(3) If provided on a “claims-made” basis and the insurer providing coverage changes during the term of the contract, the prior acts date must remain on or before the commencement date of this contract.
(4) The extended reporting period (tail) must be purchased to cover a minimum of six years beyond completion of work.
H. Commercial Property (CP) Insurance
The Design-Builder shall provide CP for loss or damage to any and all equipment owned by the Town while in the care, custody or control of the Design-Builder, its Subcontractors, or their agents. The coverage shall be provided on an ISO special form Causes of Loss form or equivalent and shall provide full replacement cost coverage. The Design-Builder shall be liable for the payment of the deductible.
I. Builder's Risk (BR) Insurance
Prior to the commencement of Design-Build Period Work, the DesignBuilder shall purchase and maintain throughout the remainder of the term of the Contract, a policy of BR insurance providing coverage for all-risk of physical injury to all structures to be constructed according to the Contract. The Town shall be named as an additional insured to the extent of its insurable interests, and a loss payee under the policy. BR insurance shall:
(1) Be on an ISO special form Causes of Loss form or equivalent and shall insure against the perils flood, earthquake, theft, vandalism, malicious mischief, and collapse.
(2) Include coverage for temporary buildings, debris removal, and damage to materials in transit or stored off-site.
(3) Be written in the amount of the completed value of the structures, with no coinsurance provisions exposure on the part of the Design-Builder or the Town.
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Builder. Any increased deductibles accepted by the Town will remain the responsibility of the Design-Builder.
(5) Be maintained until Final Completion of the work.
The Design-Builder and the Town waive all rights against each other, their respective subcontractors, agents and representatives for damages caused by fire or other perils to the extent covered by BR insurance or other property insurance applicable to the work. The policies shall provide such waivers by endorsement or otherwise.
J. Owners and Design-Builders Protective Liability (OCPL) Insurance The Design-Builder shall obtain and keep in force during the performance of any and all work required by this Design-Build Contract, an ISO form OCPL policy, on which the Town shall be a named insured. Said policy shall provide coverage for bodily injury and property damage arising from the work to be performed under the Contract, and shall have policy limits of no less than Three Million Dollars $3,000,000 combined single limit of liability with a dedicated aggregate limit of no less than Six Million Dollars $6,000,000.
K. Other Insurance
Other insurance as may be deemed appropriate to cover the specified risk and exposure arising from the scope of work or changes to the scope of work required by the Town. The costs of such necessary and appropriate insurance coverage shall be borne by the Design-Builder.
The Design-Builder will also be responsible to comply with all specific insurance requirements of the Union Pacific Railroad (UPRR) and California State Department of Transportation (Caltrans) associated with the highway and rail crossings.
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APPENDIX 11
KEY PERSONNEL AND APPROVED SUBCONTRACTORS
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APPENDIX 11
KEY PERSONNEL AND APPROVED SUBCONTRACTORS
11.1. PURPOSE
The purpose of this Appendix is to identify (1) the Key Personnel proposed to be used by the Design-Builder in performing the Contract Obligations and (2) those Subcontractors that the Town has approved for use by the Design-Builder in performing the Contract Obligations.
11.2. KEY PERSONNEL
11.2.1 Key Personnel Generally.
As referenced in Section 7.1 of this Design-Build Contract, certain Key Personnel were proposed by the Design-Builder and shall be used by the Design-Builder in connection with the performance of the Contract Obligations (the “Key Personnel”). Any change in the Key Personnel shall be subject to review and approval of the Town in accordance with Section 7.1 of this DesignBuild Contract.
11.2.2 Key Personnel.
At a minimum, the Key Personnel shall include the following:
Design-Builder Party Role Name
1. Mountain Cascade, Inc. Project Management Peter Foote
2. Carollo Engineers, Inc. Outreach Beverly Hann
3. Carollo Engineers, Inc. BODR Development Tim Taylor
4. Carollo Engineers, Inc. Collection System Darren Baune
5. Mountain Cascade, Inc. Project Controls Gary Silveira
6. Mountain Cascade, Inc. Testing, Commissioning, and Start-Up Howard Reiss
7. Carollo Engineers, Inc. Export Pipeline/Chico Connection Jon Marshall
8. Mountain Cascade, Inc. Cost Model Don Crivello