Shafter City Council
February 21, 2023

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Schedule shall indicate the times for City to review the completion of each such portion of the Construction Documents and a reasonable time for review of same.

3. The Design-Build Entity shall submit completed packages of the Construction Documents for review by City at the times indicated on the Contract Schedule and as defined in the Scheduling Specification. Meetings between the Design-Build Entity and City to review the Construction Document packages, shall be scheduled at least every two weeks, or as otherwise agreed to by the parties, and held so as not to delay work on the Project. The Design-Build Entity will conduct these design meetings with City in accordance with the schedule approved by City. The Design Build Entity will be responsible for preparing and circulating for the parties review, design meeting minutes from all such meetings.

4. The Construction Documents for hazardous and/or toxic abatement efforts and demolition activity shall be of sufficient clarity and shall be fully detailed when submitted to City for review.

B. Shop Drawings, Product Data, Samples, Materials, and Equipment

1. Shop drawings means drawings, submitted to the Design-Build Entity by Subcontractors, manufacturers, supplier or distributors, showing in detail the proposed fabrication and assembly of building elements and the installation (e.g., form, fit, and attachment details) of materials or equipment.

2. The Design-Build Entity shall coordinate all submittals and review them for accuracy, completeness, and compliance with the requirements of the Contract Documents and the Design-Build Entity’s Construction Documents and shall indicate its approval thereon as evidence of such coordination and review.

3. Materials and equipment incorporated in the work on the Project shall match the approved samples within tolerances appropriate to the items, and as may be described in the Contract Documents.

4. The Design-Build Entity shall submit shop drawings approved by the Architect of Record and samples of submittals that relate to finish materials and products.

5. Wherever the name or brand of manufacturer or an article is listed in the Contract Documents, it is to be used in work on the Project as the standard. Any variation in quality must be approved by City.

C. Field Engineering

1. The Design-Build Entity shall retain and pay expenses of a civil engineer or land surveyor to establish on the Project site the required reference points and benchmarks, establish building lines and elevations, check for building framing, plumbness, and establish on building frame the required basic grid lines. The engineer or land surveyor shall be properly licensed in the State of California.

2. The Design-Build Entity shall locate and protect control points prior to starting work on the Project site and preserve permanent reference points during construction and shall require the engineer or surveyor to replace control points which become lost or destroyed.

D. Geotechnical and Survey

1. City has provided the Design-Build Entity with a geotechnical report which includes supporting data, findings and recommendations; and also with a legal description and a project survey that

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are included in the Contract Documents. The Design Work shall be consistent with both the findings and recommendations of the geotechnical report and legal description and Project survey, or such other geotechnical recommendations obtained by Design-Build Entity at its sole cost and expense.

2. The Design-Build Entity shall verify the location and depth (elevation) of all existing utilities and services before performing any excavation work.

3. Any additional tests, borings, etc. necessary to support the Construction Documents shall be the responsibility of the Design-Build Entity.

3.18 MONTHLY REPORT
The Design-Build Entity shall prepare and submit to City, during both the Construction Documents Phase and the Construction Phase, monthly reports on the work accomplished during the prior monthly period. Such reports shall be prepared in a manner and in a format approved by City. Reports shall be furnished at the time of submission of each monthly application for payment. The monthly report shall also set forth the Design-Build Entity’s projected progress for the forthcoming month.

3.19 OTHER REPORTS
The Design-Build Entity will cooperate with City in preparing, or causing to be prepared, all or part of, periodic project reports required by state or federal agencies.

3.20 NOTICE OF LABOR DISPUTE
A. If the Design-Build Entity has knowledge that any actual or potential labor dispute is delaying, or threatens to delay, the timely performance of work on the Project, the Design-Build Entity shall immediately give written notice including all relevant information to City.

B. The Design-Build Entity agrees to insert the substance of this Article including this Article 3.20, in any subcontract to which a labor dispute may delay the timely performance of work on the Project, except that each subcontract shall provide that in the event its timely performance is delayed or threatened by delay by any actual or potential labor dispute, the Subcontractor shall immediately notify the next higher tier Subcontractor or the Design-Build Entity, as the case may be, of all relevant information concerning the dispute.

3.21 GUARANTEE
A. The Design-Build Entity unconditionally guarantees all work on the Project will be completed in accordance with the requirements of the Contract Documents and will remain free of defects in workmanship and materials for a period of two (2) years from the date of Substantial Completion, unless a longer guarantee period is specifically called for in the Contract Documents. However, a shorter guarantee period shall apply to landscape plants, trees, turf, etc. Trees or shrubs greater than one gallon in size at the time of planting shall be guaranteed for one (1) year, and all other plant material shall be guaranteed for six (6) months. The Design-Build Entity shall repair or replace any and all work, together with any adjacent work that may have been damaged or displaced, which was not in accordance with the requirements of the Contract Documents, or that may be defective in its workmanship or material within the guarantee period specified in the Contract Documents, without any expense whatsoever to City; ordinary wear and tear and abuse excepted.

B. The Design-Build Entity further agrees, within fourteen (14) days, or as such shorter period as may be designated for emergency repairs, after being notified in writing by City, of any work not in accordance with the requirements of the Contract Documents or any defects in the work on the

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Project, that the Design-Build Entity shall commence and execute, with due diligence, all work necessary to fulfill the terms of the guarantee. If City finds that the Design-Build Entity fails to perform any of the work under the guarantee, City may elect to have the work completed at the Design-Build Entity’s expense and the Design-Build Entity will pay costs of the work upon demand. City will be entitled to all costs, including reasonable attorneys’ fees and consultants’ expenses necessarily incurred upon the Design-Build Entity’s refusal to pay the above costs.

C. Notwithstanding the foregoing provisions, in the event of an emergency constituting an immediate hazard to health or safety of City employees, property, or licensees, City may undertake, at the Design-Build Entity’s expense and without prior notice, all work necessary to correct such condition(s) when it is caused by work of the Design-Build Entity not being in accordance with the requirements of the Contract Documents.

3.22 WARRANTY
The Design-Build Entity warrants to City that any and all materials, equipment and furnishings incorporated in the Project will be of good quality and new unless otherwise required or permitted by the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. The foregoing warranty excludes improper operation, or normal wear and tear under normal usage under the control of City. Such warranty shall exclude warranties relating to design, warranty of fitness, and any other express or implied warranties other than as set forth herein or in the Contract Documents; provided, however, that the foregoing shall not impair the rights of City to maintain an action for breach of contract against the Design-Build Entity. Nothing contained in these Contract Documents pertaining to warranty or guarantee shall be construed as limiting any other rights City may have at law, including rights for latent defects under Code of Civil Procedure Section 337.15.

3.23 SCHEDULES REQUIRED OF THE DESIGN-BUILD ENTITY
A. The Design-Build Entity shall plan, develop, supervise, control, and coordinate the performance of the work on the Project so that its progress and the sequence and timing of work activities conform to the current accepted Contract Schedule. The Design-Build Entity shall continuously obtain from Subcontractors information and data about the planning for, and progress of, the work on the Project and the delivery of equipment. The Design-Build Entity shall prepare updates to the Contract Schedule at least monthly, unless otherwise agreed to by City. Such updates shall be discussed and reviewed at Project meetings. The Design-Build Entity shall coordinate and integrate such information and data into updated Contract Schedules and shall monitor the progress of the work on the Project and the delivery of equipment. The Design-Build Entity shall act as the expediter of potential and actual delays, interruptions, hindrances, or disruptions for its own forces and those forces of Subcontractors, regardless of tier. The Design-Build Entity shall cooperate with City’s Representative in the development of all contract schedules and updated contract schedules. In the event any such schedule shows that the Guaranteed Completion Date will be exceeded, the DesignBuild Entity shall provide City with a recovery schedule indicating how the Guaranteed Completion Date will be met.

B. Failure of City’s Representative to discover errors or omissions in schedules that it has reviewed, or to inform the Design-Build Entity that the Design-Build Entity, Subcontractors, or others are behind schedule, or to direct or enforce procedures for complying with the Contract Schedule shall not relieve the Design-Build Entity from its sole responsibility to perform and complete all work on the Project within the Guaranteed Completion Date and shall not be a cause for an adjustment of the Guaranteed Completion Date or the Guaranteed Maximum Price.

C. The Design-Build Entity shall perform all work on the Project in accordance with the current accepted Contract Schedule.

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3.24 AS-BUILT/RECORD DOCUMENTS
A. General. The Design-Build Entity shall furnish all materials and perform all work required for furnishing submittals to City in accordance with Contract Documents.

B. Technical Manuals.

1. The Design-Build Entity shall submit technical operation and maintenance information for each item of mechanical, electrical and instrumentation equipment in an organized manner in the Technical Manual. It shall be written so that it can be used and understood by City’s operation and maintenance staff.

2. The Technical Manual shall be subdivided first by specification section number; second, by equipment item; and last, by "Category." "Categories" shall conform to the following (as applicable):
a. Category 1 - Equipment Summary:
(i) Summary: A summary table shall indicate the equipment name, equipment number, and process area in which the equipment is installed.
b. Category 2 - Operational Procedures:
(i) Procedures: Manufacturer-recommended procedures on the following shall be included in Part 2:

Installation.

Adjustment.

Startup.

Location of controls, special tools, equipment required, or related instrumentation needed for operation.

Operation procedures.

Load changes.

Calibration.

Shutdown.

Troubleshooting.

Disassembly.

Reassembly.

Realignment.

Testing to determine performance efficiency.

Tabulation of proper settings for all pressure relief valves, low and high pressure switches, and other protection devices.

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List of all electrical relay settings including alarm and contact settings. c. Category 3 - Preventive Maintenance Procedures:
(i) Procedures: Preventive maintenance procedures shall include all manufacturerrecommended procedures to be performed on a periodic basis, both by removing and replacing the equipment or component, and by leaving the equipment in place. (ii) Schedules: Recommended frequency of preventive maintenance procedures shall be included. Lubrication schedules, including lubricant SAE grade, type, and temperature ranges, shall be covered.
d. Category 4 - Parts List:
(i) Parts List: A complete parts list shall be furnished, including a generic description and manufacturer's identification number for each part. Addresses and telephone numbers of the nearest supplier and parts warehouse shall be included. (ii) Drawings: Cross-sectional or exploded view drawings shall accompany the parts list. e. Category 5 - Wiring Diagrams:
(i) Diagrams: Part 5 shall include complete internal and connection wiring diagrams for electrical equipment items.
f. Category 6 - Shop Drawings:
(i) Drawings: This part shall include approved shop or fabrication drawings, complete with dimensions.
g. Category 7 - Safety:
(i) Procedures: This part describes the safety precautions to be taken when operating and maintaining the equipment or working near it.
h. Category 8 - Documentation:
(i) All equipment warranties, affidavits, and certifications required by the Technical Specifications shall be placed in this part.

3. The Design-Build Entity shall furnish to City six (6) identical Technical Manuals. Each set shall consist of one or more volumes, each of which shall be bound in a standard binder.

C. Spare Parts List - The Design-Build Entity shall furnish to City six (6) identical sets of spare parts information for all mechanical, electrical, and instrumentation equipment. The spare parts list shall include the current list price of each spare part. The spare parts list shall include those spare parts which each manufacturer recommends be maintained by City in inventory. Each manufacturer or supplier shall indicate the name, address, and telephone number of its nearest outlet of spare parts to assist City in ordering. The Design-Build Entity shall cross-reference all spare parts lists to the equipment numbers designated in the Contract Documents. The spare parts lists shall be bound in standard size, 3-ring binder.

D. Record Drawings

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1. The Design-Build Entity shall maintain one record set of Drawings at the Project site. On these, it shall mark all Project conditions, locations, configurations, and any other changes or deviations which may vary from the information represented in the original Contract Documents, including buried or concealed construction and utility features which are revealed during the course of construction. Special attention shall be given to recording the horizontal and vertical location of all buried utilities that differ from the locations indicated, or which were not indicated on the Contract Drawings. Said record drawings shall be supplemented by any detailed sketches as necessary or directed to fully indicate the Project as actually constructed. These master record drawings of the as-built conditions, including all revisions made necessary by Addenda and Change Orders shall be maintained up-to-date during the progress of the Project. Red ink shall be used for alterations and notes. Notes shall identify relevant Change Orders by number and date.

2. For all Projects involving the installation of any pipeline, the Design-Build Entity shall survey and record the top of the pipe at a minimum of every 100 linear feet, and at each bend, recording both the horizontal and vertical locations.

3. Record drawings shall be accessible to City’s Representative at all times during the construction period.

4. Upon Completion of the Project and as a condition of final acceptance, the Design-Build Entity shall finalize and deliver a complete set of Record Drawings to City’s Representative. The information submitted by the Design-Build Entity will be assumed to be correct, and the DesignBuild Entity shall be responsible for, and liable to City, for the accuracy of such information, and for any errors or omissions which may or may not appear on the Record Drawings.

E. Cost. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required to complete the Manuals and Record Drawings shall be included in the DesignBuild Entity’s Proposal. No additional compensation shall be made to the Design-Build Entity for this work.

3.25 DOCUMENTS AND SAMPLES AT PROJECT SITE
A. The Design-Build Entity shall maintain the following at the Project site:

1. One current copy of the Contract Documents (including Construction Documents), in good order and marked to record current changes and selections made during construction.

2. One copy of the prevailing wage rates applicable to the Project.

3. The current accepted Contract Schedule.

4. Shop Drawings, Product Data, and Samples.

5. One current copy of all documents required by Article 3.24.

6. All other required submittals.

These shall be available to City’s Representative and shall be delivered to City’s Representative for submittal to City upon the earlier of Final Completion or termination of the Contract.

3.26 SHOP DRAWINGS, PRODUCT DATA, AND SAMPLES
A. Submittal includes all “Shop Drawings,” “Product Data”, and “Samples,” defined as follows:

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1. Shop Drawings are drawings, diagrams, schedules, and other data specially prepared for the Project by the Design-Build Entity or a Subcontractor to illustrate some portion of the work on the Project. Data shown on the Shop Drawings will be complete with respect to quantities, dimensions, specified performance and design criteria, materials, and similar data to show City’s Representative the services, materials, and equipment the Design-Build Entity proposes to provide and to enable City’s Representative to review the information for assessing conformance with information given and design concept expressed in the Contract Documents.

When required by the Contract Documents, Design-Build Entity shall provide Shop Drawings signed and sealed by a professional Engineer responsible for designing components shown on the Shop Drawings. Shop Drawings must include signed and sealed calculations to support design in a form suitable for submission to and approval by authorities having jurisdiction.

2. Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams, and other information furnished by the Design-Build Entity to illustrate or describe materials or equipment for some portion of work on the Project.

3. Samples are physical examples that illustrate materials, equipment, or workmanship and establish standards by which the work on the Project will be judged. Design-Build Entity must clearly identify each Sample as to material, supplier, pertinent data such as catalog numbers, the use for which intended and other data as required to enable City’s Representative to review the Sample for assessing conformance with information given and design concept expressed in the Contract Documents. Samples should be of appropriate size and detail to assess functional, aesthetic, color, texture, patterns and finish selection.

B. The Design-Build Entity will follow the following procedures for each Submittal required by the Contract Documents
a. Transmittals will be sequentially numbered. the Design-Build Entity to mark revised Submittals with original number and sequential alphabetic suffix. b. Each Submittal will identify the Project, the Design-Build Entity, Subcontractor and supplier, pertinent Construction Document and detail number, and specification section number appropriate to the Submittal.
c. The Design-Build Entity must sign each Submittal, certifying that it has reviewed and approved the Submittal, verified products required, field dimensions, adjacent construction work, and that coordination of information is according to requirements of the Project and Contract Documents.
d. Identify variations in Contract Documents and product or system limitations that may differ and/or be detrimental to successful performance of completed work. e. When a Submittal is revised for resubmission, the Design-Build Entity shall promptly address City comments and resubmit. The Design-Build Entity shall identify changes made since previous submission.
f. City’s review of Submittals shall not relieve the Design-Build Entity from responsibility for deviations from the Contract Documents unless the Design-Build Entity has, in writing, called City’s attention to such deviations at time of submission and City’s has taken no exception to the deviation. City’s review of Submittals shall not relieve the Design-Build Entity from responsibility for errors in the Submittals. g. Submittals not required by the Contract Documents or requested by City’s Representative will not be acknowledged or processed.

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h. Incomplete Submittals will not be reviewed by City’s Representative. Delays resulting from incomplete submittals are not the responsibility of City’s Representative. i. The Design-Build Entity shall not be entitled to any extension of the Guaranteed Completion Date as a result of the Submittal process.

C. Where a Submittal is required by the Contract Documents, any related work performed prior to City’s Representative’s review and approval of the pertinent Submittal will be at the sole expense and responsibility of the Design-Build Entity.

D. Before submitting each Submittal, the Design-Build Entity shall have:

1. reviewed and coordinated each Submittal with other Submittals and with the requirements of the Project and the Contract Documents;

2. determined and verified all field measurements, quantities, dimensions, specified performance and design criteria, installation requirements, materials, catalog numbers, and similar information with respect thereto;

3. determined and verified the suitability of all materials offered with respect to the indicated application, fabrication, shipping, handling, storage, assembly, and installation pertaining to the performance of the Project; and

4. determined and verified all information relative to the Design-Build Entity’s responsibilities for means, methods, techniques, sequences, and procedures of construction, and safety precautions and programs incident thereto.

With each Submittal, the Design-Build Entity shall give City’s Representative specific written notice of any variations that the Submittal may have from the requirements of the Contract Documents. This notice shall be both a written communication separate from the Submittal and, in addition, a specific notation made on each Submittal submitted to City’s Representative for review and approval of each such variation.

E. City’s Representative’s Review

1. City’s Representative’s review and acceptance will be only to determine if the items covered by the Submittals will, after installation or incorporation in the Project, conform to the information given in the Contract Documents and be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents.

2. City’s Representative’s review and approval will not extend to means, methods, techniques, sequences, or procedures of construction (except where a particular means, method, technique, sequence, or procedure of design or construction is specifically and expressly called for by the Contract Documents) or to safety precautions or programs incident thereto. The review and approval of a separate item as such will not indicate approval of the assembly in which the item functions.

3. City’s Representative’s review and acceptance shall not relieve the Design-Build Entity from responsibility for any variation from the requirements of the Contract Documents unless City’s Representative has given written approval of each such variation by specific written notation thereof incorporated in or accompanying the Submittal.

F. The Design-Build Entity shall make corrections required by City’s Representative and shall return three (3) corrected copies of Shop Drawings and Product Data, and submit, as required, new

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Samples for review and approval. The Design-Build Entity shall direct specific attention in writing to revisions other than the corrections called for by City’s Representative on previous Submittals.

G. City will review the first resubmittal of Shop Drawings at its cost. City reserves the right to reduce the Guaranteed Maximum Price by Change Order for its cost for any subsequent reviews of Shop Drawing resubmittals.

3.27 USE OF SITE AND CLEAN UP
A. The Design-Build Entity shall confine operations at the Project site to areas permitted by law, ordinances, permits, and the Contract Documents. The Design-Build Entity shall not unreasonably encumber the Project site with materials or equipment.

B. The Design-Build Entity shall, during performance of work on the Project, keep the Project site and surrounding area free from the accumulation of excess dirt, waste materials, and rubbish caused by the Design-Build Entity. The Design-Build Entity shall remove all excess dirt, waste material, and rubbish caused by the Design-Build Entity; tools; equipment; machinery; and surplus materials from the Project site and surrounding area at the completion of the Project.

C. Personnel of the Design-Build Entity and Subcontractors shall not occupy, live upon, or otherwise make use of the Project site during any time that work is not being performed at the Project site, except as otherwise provided in the Contract Documents.

3.28 CUTTING, FITTING, AND PATCHING
A. The Design-Build Entity shall do all cutting, fitting, or patching work required to make all parts of the Project come together properly and to allow the Project to receive or be received by the work of Separate Contractors shown upon, or reasonably implied by, the Contract Documents.

B. The Design-Build Entity shall not endanger the Project, or adjacent property by cutting, digging, or otherwise. The Design-Build Entity shall not cut or alter the work of any Separate Contractor without the prior written consent of City’s Representative.

3.29 ACCESS TO WORK
A. City, City’s Representative, their consultants, and other persons authorized by City will at all times have access to the work on the Project wherever it is in preparation or progress. The Design-Build Entity shall provide safe and proper facilities for such access and for inspection.

3.30 ROYALTIES AND PATENTS
A. The Design-Build Entity shall pay all royalties and license fees required for the performance of work on the Project. The Design-Build Entity shall defend suits or claims resulting from the Design-Build Entity’s or any Subcontractor’s infringement of patent rights and shall indemnify City and City’s Representative from Losses on account thereof.

3.31 CONCEALED OR UNKNOWN CONDITIONS
A. Except and only to the extent provided otherwise in Articles 7 and 8, by signing the Contract, the Design-Build Entity agrees:

1. To bear the risk of concealed or unknown conditions, if any, which may be encountered in performing the Contract, as described in these Contract Documents, and/or can reasonably be inferred by the Design-Build Entity based on its experience and expertise; and

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2. That the Design-Build Entity’s Guaranteed Maximum Price for the Contract was made with full knowledge of this risk.

In agreeing to bear the risk of concealed or unknown conditions, The Design-Build Entity understands that, except and only to the extent provided otherwise in Articles 7 and 8, concealed and/or unknown conditions shall not excuse the Design-Build Entity from its obligation to achieve full completion of the Project within the Guaranteed Completion Date, and shall not entitle the Design-Build Entity to an adjustment of the Guaranteed Maximum Price.

B. If concealed or unknown conditions are encountered which require, in the opinion of City’s Representative, design details which differ from those details shown in the Criteria Documents and City’s Representative finds that such revised design details will cause an increase or decrease in the cost of, or the time required for performance of the Contract, and if City agrees with City’s Representative’s determinations, City will issue a Change Order modifying the Contract Terms to provide for the change in design details and to provide for an adjustment in the Guaranteed Maximum Price and/or Guaranteed Completion Date pursuant to Articles 7 and 8 following receipt of a Change Order Request.

C. If the Design-Build Entity encounters concealed or unknown conditions that differ materially from those anticipated or expected, the Design-Build Entity shall notify City’s Representative within three (3) days in writing of such conditions so that City’s Representative can determine if such conditions require design details which differ from those design details shown in the Criteria Documents. The Design-Build Entity shall be liable to City for any extra costs incurred as a result of the Design-Build Entity’s failure to give such notice.

3.32 LIABILITY FOR AND REPAIR OF DAMAGED WORK
A. Except as otherwise provided in the Contract Documents, the Design-Build Entity shall be liable for any and all damages and losses to the Project (whether by fire, theft, vandalism, earthquake, flood or otherwise) prior to City’s acceptance of the Project as fully completed.

3.33 INDEMNIFICATION
A. To the fullest extent allowed by law (including without limitation Civil Code Sections 2782 and 2782.8), the Design-Build Entity shall defend (with counsel of City’s choosing), indemnify and hold City, its officials, officers, agents, employees, and representatives free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, Losses, damages or injuries, in law or in equity, to property or persons, including wrongful death, regardless of whether the allegations are false, fraudulent, or groundless, arising out of, related to, or in connection with the Project or this Contract, including claims made by Subcontractors for nonpayment, and including without limitation the payment of all consequential damages and attorney’s fees and other related costs and expenses. The Design-Build Entity shall defend, at the Design-Build Entity’s own cost, expense and risk, with counsel of City’s choosing, any and all such suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its officials, officers, agents, employees and representatives. the Design-Build Entity shall pay and satisfy any judgment, award or decree that may be rendered against City, its officials, officers, agents, employees and representatives, in any such suit, action or other legal proceeding. The Design-Build Entity shall reimburse City, its officials, officers, agents, employees and representatives for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. The Design-Build Entity agrees to pay, or reimburse City and City’s Representative, for regulatory agency or court imposed fees, fines, or penalties imposed on City and City’s Representative arising from the Design-Build Entity’s failure to complete the Project in a timely manner and/or in accordance with the Contract Documents and any applicable permits or Applicable Laws. The Design-Build Entity’s responsibility and obligation to pay, or reimburse City and City’s

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Representative, for these fees, fines, or penalties shall be in addition to the assessment of liquidated damages for late completion of the Project.

B. In claims against any person or entity indemnified under this Article that are made by an employee of the Design-Build Entity or any Subcontractor, a person indirectly employed by the Design-Build Entity or any Subcontractor, or anyone for whose acts the Design-Build Entity or any Subcontractor may be liable, the indemnification obligation under this Article shall not be limited by any limitation on amount or type of damages, compensation, or benefits payable by or for Design-Build Entity or any Subcontractor under workers’ compensation acts, disability benefit acts, or other employee benefit acts or any other insurance limitations.

C. The indemnification obligations under this Article shall not be limited by any assertion or finding that the person or entity indemnified is liable by reason of a non-delegable duty.

D. Joint and Several Liability. In the event the Design-Build Entity and one or more than one other party is connected with an accident or occurrence covered by this indemnification, then all such parties shall be jointly and severally responsible to each of the Indemnitees for indemnification, and the ultimate responsibility among such indemnifying parties for the loss and expense of any such indemnification shall be resolved without jeopardy to any indemnitee listed in Article 3.33.

ARTICLE 4 - Administration of the Contract

4.1 ADMINISTRATION OF THE CONTRACT BY CITY’S REPRESENTATIVE A. City’s Representative will have authority to act on behalf of City only to the extent provided in the Contract Documents.

City shall designate in the Contract one or more representatives authorized to act on City’s behalf with respect to the Project, together with the scope of his/her respective authority. If City’s Representative(s) changes, City shall notify the Design-Build Entity in writing as provided in the Contract. Functions for which the Contract Documents provide will be performed by City may be delegated by City only by written notice to the Design-Build Entity from City. The Design-Build Entity shall not be entitled to rely on directions (nor shall it be required to follow the directions) from anyone outside the scope of that person’s authority as set forth in written authorization pursuant to this Design-Build Contract. Directions and decisions made by City’s Representative shall be binding on City.

B. During the term of this Design-Build Contract, City’s Representative shall have the right to review the Design Professionals’ work at such intervals as deemed appropriate by City’s Representative.

However, no actions taken during such review or site visit by City’s Representative shall relieve the Design-Build Entity of any of its obligations of single point responsibility for the design and construction of this Project nor form the basis for a Claim if such actions extend beyond the Guaranteed Completion Date.

C. City’s Representative will not have control over, will not be in charge of, and will not be responsible for design or construction means, methods, techniques, sequences, or procedures, or for safety precautions and programs in connection with the work on the Project, since these are solely the Design-Build Entity’s responsibility.

D. Except as otherwise provided in the Contract Documents or when direct communications have been specifically authorized, City and the Design-Build Entity shall communicate through City’s Representative. Communications by the Design-Build Entity with City’s consultants and City’s Representative’s consultants shall be through City’s Representative. Communications by City and City’s Representative with Subcontractors will be through the Design-Build Entity. Communications

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by the Design-Build Entity and Subcontractors with Separate Contractors shall be through City’s Representative. The Design-Build Entity shall not rely on oral or other non-written communications.

E. Based on City’s Representative’s Project site visits, review of Design Work, and evaluations of the Design-Build Entity’s Applications For Payment, City’s Representative will recommend amounts, if any, due the Design-Build Entity and will issue Certificates For Payment in such amounts.

F. City’s Representative will have the authority to reject work on the Project, or any portion thereof, which does not conform to the Contract Documents. City’s Representative will have the authority to stop work on the Project, or any portion thereof. Whenever City’s Representative considers it necessary, or advisable, for implementation of the intent of the Contract Documents, City’s Representative will have the authority to require additional inspection or testing of the work on the Project in accordance with the Contract Documents, whether or not such work is fabricated, installed, or completed. However, no authority of City’s Representative conferred by the Contract Documents nor any decision made in good faith either to exercise, or to not exercise such authority, will give rise to a duty or responsibility of City or City’s Representative to the Design-Build Entity, or any person or entity claiming under, or through, the Design-Build Entity.

G. City’s Representative will have the authority to conduct inspections in connection with Beneficial Occupancy and to determine the dates of Substantial Completion and Final Completion; will receive for review and approval any records, written warranties, and related documents required by the Contract Documents and assembled by the Design-Build Entity; and will issue a final Certificate For Payment upon the Design-Build Entity’s compliance with the requirements of the Contract Documents.

H. City’s Representative will be, in the first instance, the interpreter of the requirements of the Contract Documents and the judge of performance thereunder by the Design-Build Entity. Should the DesignBuild Entity discover any conflicts, omissions, or errors in the Construction Documents or the Contract Documents; have any questions about the interpretation or clarification of the Contract Documents; question whether work is within the scope of the Contract Documents; then, before proceeding with the work affected, the Design-Build Entity shall notify City’s Representative in writing and request interpretation, or clarification. City’s Representative’s response to questions and requests for interpretations, clarifications, instructions, or decisions will be made with reasonable promptness. Should the Design-Build Entity proceed with the work affected before receipt of a response from City’s Representative, any portion of the work on the Project which is not done in accordance with City’s Representative’s interpretations, clarifications, instructions, or decisions shall be removed or replaced and the Design-Build Entity shall be responsible for all resultant losses.

4.2 THE DESIGN-BUILD ENTITY CHANGE ORDER REQUESTS
A. The Design-Build Entity may request changes to the Guaranteed Maximum Price and/or Guaranteed Completion Date for Extra Work or Excusable Delays to completion of the Project caused by the acts, errors, or omissions of City, City’s Representative, their agents or employees, or caused by unforeseen conditions if, and only if, the Design-Build Entity follows the procedures specified in this Article. As used in this Article, such acts, errors, or omissions shall include, but not be limited to, the provision of instructions, or interpretations that involve an increase or decrease in the Scope of Work, Extra Work or delay completion of the Project.

B. If the Design-Build Entity asserts that the Design-Build Entity is entitled to an adjustment of the Guaranteed Maximum Price and/or Guaranteed Completion Date as the result of an act, error, or omission of City, City’s Representative, their agents or employees, or as the result of unforeseen conditions, then the Design-Build Entity may submit a Change Order Request in a form acceptable to City, to City’s Representative.

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C. A Change Order Request must state that it is a Change Order Request, state and justify the reason for the request, and specify the amount of any requested adjustment to the Guaranteed Maximum Price and/or Guaranteed Completion Date. Upon request of City’s Representative, the Design-Build Entity shall submit such additional information as may be requested by City’s Representative for the purpose of evaluating the Change Order Request. Such additional information may include a cost proposal meeting the requirements of Article 7 and written documentation demonstrating the DesignBuild Entity’s entitlement to a time extension under Article 8. If the Change Order Request seeks an adjustment of the Guaranteed Maximum Price for an Excusable Delay, upon request of City’s Representative, the Design-Build Entity shall submit written documentation demonstrating the Design-Build Entity’s entitlement to such an adjustment under Article 7.3H.

D. A condition precedent to obtaining an adjustment of the Guaranteed Maximum Price and/or Guaranteed Completion Date as the result of an act, error, or omission of City, City’s Representative, their agents or employees, or as the result of an unforeseen condition, is timely submission of a Change Order Request that meets the requirements set forth in this Article. A Change Order Request based upon such acts, errors or omissions will be deemed timely submitted if, and only if, it is submitted within fourteen (14) days of the date the Design-Build Entity discovers, or reasonably should discover, that an act, error, or omission of City, City’s Representative, their agents or employees, has occurred that may entitle the Design-Build Entity to an adjustment of the Guaranteed Maximum Price and/or Guaranteed Completion Date (even if the Design-Build Entity has not been damaged, delayed, or incurred extra cost when the Design-Build Entity discovers, or reasonably should discover, the act, error or omission giving rise to the Change Order Request). A Change Order Request based upon an unforeseen condition will be deemed timely submitted if, and only if, it is submitted within fourteen (14) days of the date the Design-Build Entity discovers, or reasonably should discover, the existence of an unforeseen condition that may entitle the Design-Build Entity to an adjustment of the Guaranteed Maximum Price and/or Guaranteed Completion Date (even if the Design-Build Entity has not been damaged, delayed, or incurred extra cost when the Design-Build Entity discovers, or reasonably should discover, the unforeseen condition giving rise to the Change Order Request). Although the Design-Build Entity shall have fourteen (14) days to submit such Change Order Requests, the Design-Build Entity shall provide City written or oral notice of the issue being the basis for such Change Order within fourteen (14) business days of discovery.

E. If City’s Representative issues a final decision on all or part of a Change Order Request, the DesignBuild Entity may contest the decision by filing a timely Claim under the procedures specified in Article

4.3. A final decision is any decision on a Change Order Request by City’s Representative which states that it is final.

4.3 CLAIMS
A. The term “Claim” means a written demand or assertion by the Design-Build Entity seeking an adjustment or interpretation of the terms of the Contract Documents, payment of money, extension of time, or other relief with respect to the Contract Documents, including a determination of disputes or matters in question between City and the Design-Build Entity arising out of or related to the Contract Documents or the performance of work on the Project, and a written demand or assertion alleging an unforeseen condition or an act, error or omission by City, City’s Representative, their agents or employees. However, the term “Claim” shall not include, and the Claims procedures provided under this Article 4 shall not apply to the following:

1. Claims respecting penalties for forfeitures prescribed by statute or regulation that a government agency is specifically authorized to administer, settle, or determine.

2. Claims respecting personal injury, death, reimbursement, or other compensation arising out of or resulting from liability for personal injury or death.

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3. Claims respecting a latent defect, breach of warranty, or guarantee to repair.

4. Claims respecting Stop Payment Notices.

B. If a Claim is subject to the procedures specified in Article 4.2, the Claim arises upon the issuance of a written final decision denying in whole or in part the Design-Build Entity’s Change Order Request.

If a Claim is not subject to the procedures specified in Article 4.2, the Claim arises when the DesignBuild Entity discovers, or reasonably should discover, the condition or event giving rise to the Claim (even if the Design-Build Entity has not been damaged, delayed, or incurred extra cost when the Design-Build Entity discovers, or reasonably should discover, the condition or event giving rise to the Claim).

C. A Claim not subject to the procedures specified in Article 4.2 may be asserted if, and only if, the Design-Build Entity gives a valid written notice of intent to file the Claim within fourteen (14) calendar days of the date the Claim arises under Article 4.3B. A written notice of intent to file a claim will be deemed valid, if and only if it identifies the event or condition giving rise to the Claim and states its probable effect, if any, with respect to the Design-Build Entity’s entitlement to an adjustment of the Guaranteed Maximum Price and/or the Guaranteed Completion Date.

D. A Claim must include the following:

1. A statement that it is a Claim and a request for a decision pursuant to Article 4.5.

2. A detailed description of the act, error, omission, unforeseen condition, event or other condition giving rise to the Claim.

3. If the Claim is subject to the procedures specified in Article 4.2, a statement demonstrating that a Change Order Request was timely submitted as required by Article 4.2D. If the Claim is not subject to the procedures specified in Article 4.2, a statement demonstrating that a valid notice of intent to file the Claim was timely submitted as required by Article 4.3C.

4. A detailed justification for any remedy or relief sought by the Claim, including to the extent applicable, the following:
a. If the Claim involves Extra Work, a detailed cost breakdown of the amounts claimed, including the items specified in Article 7.3B. The breakdown must be provided even if the costs claimed have not been incurred when the Claim is submitted. To the extent costs have been incurred when the Claim is submitted, the Claim must include actual cost records (including without limitation, payroll records, material and rental invoices and the like) demonstrating that costs claimed have actually been incurred. To the extent costs have not yet been incurred at the time the Claim is submitted, actual cost records must be submitted on a current basis not less than once a month during any period costs are incurred. A cost record will be considered current if submitted within 30 days of the date the cost reflected in the record is incurred. At the request of City’s Representative, claimed extra costs may be subject to further verification procedures (such as having an inspector verify the performance of alleged extra work on a daily basis). b. If the Claim involves an extension of the Guaranteed Completion Date, written documentation demonstrating the Design-Build Entity’s entitlement to a time extension under Article 8.4.
c. If the Claim involves an adjustment of the Guaranteed Maximum Price for an Excusable delay, written documentation demonstrating the Design-Build Entity’s entitlement to such an adjustment under Article 7.3H.

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4.4 ASSERTION OF CLAIMS
A. Claims by the Design-Build Entity shall be first submitted to City’s Representative for decision.

B. Notwithstanding the making of any Claim or the existence of any dispute regarding any Claim, unless otherwise directed by City’s Representative, the Design-Build Entity shall not cause any delay, cessation, or termination in or of the Design-Build Entity’s performance of work on the Project, but shall diligently proceed with performance of the work in accordance with the Contract Documents.

City will continue to make payments in accordance with the Contract Documents.

C. The Design-Build Entity shall submit a Claim in writing, together with the supporting data specified in Article 4.3D, to City’s Representative as soon as possible but not later than thirty (30) days after the date the Claim arises under Article 4.3B.

D. The Design-Build Entity agrees that strict compliance with the requirements of Articles 4.2, 4.3, and

4.4 is an express condition precedent to the Design-Build Entity’s right to arbitrate or litigate a Claim if City is prejudiced by a later submission. The Design-Build Entity specifically agrees to assert no Claims in arbitration or litigation unless there has been strict compliance with Articles 4.2, 4.3, and

4.4 if City is prejudiced by a later submission.

4.5 DECISION OF CITY’S REPRESENTATIVE ON CLAIMS
A. City’s Representative will timely review Claims submitted by the Design-Build Entity. If City’s Representative determines that additional supporting data is necessary to fully evaluate a Claim, City’s Representative will request such additional supporting data in writing. Such data shall be furnished no later than thirty (30) days after the date of such request. City’s Representative will render a decision promptly and in any case within thirty (30) days after the later of the receipt of the Claim or the deadline for furnishing such additional supporting data.

B. ALTERNATE DISPUTE RESOLUTION OF CLAIMS
The Design-Build Entity shall timely comply with all notices and requests for changes to the Contract Time or Contract Price, including but not limited to all requirements of Article 4, as a prerequisite to filing any claim governed by this Article. The failure to timely submit a notice of delay or notice of change, or to timely request a change to the Contract Price or Contract Time, or to timely provide any other notice or request required herein shall constitute a waiver of the right to further pursue the claim under the Contract or at law.

1. Intent. Effective January 1, 1991, Section 20104 et seq., of the California Public Contract Code prescribes a process utilizing informal conferences, non-binding judicial supervised mediation, and judicial arbitration to resolve disputes on construction claims of $375,000 or less. Effective January 1, 2017, Section 9204 of the Public Contract Code prescribes a process for negotiation and mediation to resolve disputes on construction claims. The intent of this Article is to implement Sections 20104 et seq. and Section 9204 of the California Public Contract Code. This Article shall be construed to be consistent with said statutes.

2. City’s Response. Upon receipt of a claim pursuant to this Article, City shall conduct a reasonable review of the claim and, within a period not to exceed 45 Days, shall provide the Design-Build Entity a written statement identifying what portion of the claim is disputed and what portion is undisputed. Any payment due on an undisputed portion of the claim will be processed and made within 60 Days after the City issues its written statement. a. If the City needs approval from its governing body to provide the Design-Build Entity a written statement identifying the disputed portion and the undisputed portion of the claim,

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and the City’s governing body does not meet within the 45 Days or within the mutually agreed to extension of time following receipt of a claim sent by registered mail or certified mail, return receipt requested, the City shall have up to three Days following the next duly publicly noticed meeting of the City’s governing body after the 45-Day period, or extension, expires to provide the Design-Build Entity a written statement identifying the disputed portion and the undisputed portion.
b. Within 30 Days of receipt of a claim, the City may request in writing additional documentation supporting the claim or relating to defenses or claims the City may have against the Design-Build Entity. If additional information is thereafter required, it shall be requested and provided pursuant to this subdivision, upon mutual agreement of City and the Design-Build Entity. The City’s written response to the claim, as further documented, shall be submitted to the Contractor within 30 Days (if the claim is less than $15,000, within 15 Days) after receipt of the further documentation, or within a period of time no greater than that taken by the Design-Build Entity in producing the additional information or requested documentation, whichever is greater.

3. Meet and Confer. If the Design-Build Entity disputes the City’s written response, or the City fails to respond within the time prescribed, the Design-Build Entity may so notify the City, in writing, either within 15 Days of receipt of the City’s response or within 15 Days of the City’s failure to respond within the time prescribed, respectively, and demand in writing an informal conference to meet and confer for settlement of the issues in dispute. Upon receipt of a demand, the City shall schedule a meet and confer conference within 30 Days for settlement of the dispute.

4. Mediation. Within 10 business Days following the conclusion of the meet and confer conference, if the claim or any portion of the claim remains in dispute, the City shall provide the Design-Build Entity a written statement identifying the portion of the claim that remains in dispute and the portion that is undisputed. Any payment due on an undisputed portion of the claim shall be processed and made within 60 Days after the City issues its written statement. Any disputed portion of the claim, as identified by the Design-Build Entity in writing, shall be submitted to nonbinding mediation, with the City and Design-Build Entity sharing the associated costs equally. The City and Design-Build Entity shall mutually agree to a mediator within 10 business Days after the disputed portion of the claim has been identified in writing, unless the parties agree to select a mediator at a later time.
a. If the parties cannot agree upon a mediator, each party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the claim. Each party shall bear the fees and costs charged by its respective mediator in connection with the selection of the neutral mediator. b. For purposes of this section, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the parties in dispute resolution through negotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes in this section. c. Unless otherwise agreed to by the City and the Design-Build Entity in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Public Contract Code Section 20104.4 to mediate after litigation has been commenced. d. The mediation shall be held no earlier than the date Design-Build Entity completes the Work or the date that Design-Build Entity last performs Work, whichever is earlier. All unresolved claims shall be considered jointly in a single mediation, unless a new unrelated claim arises after mediation is completed.

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5. Procedures After Mediation. If following the mediation, the claim or any portion remains in dispute, the Contractor must file a claim pursuant to Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code prior to initiating litigation. For purposes of those provisions, the running of the period of time within which a claim must be filed shall be tolled from the time the Contractor submits his or her written claim pursuant to subdivision (a) until the time the claim is denied, including any period of time utilized by the meet and confer conference.

4.6 CIVIL ACTIONS
The following procedures are established for all civil actions filed to resolve claims of $375,000 or less:

A. Within 60 Days, but no earlier than 30 Days, following the filing or responsive pleadings, the court shall submit the matter to non-binding mediation unless waived by mutual stipulation of both parties or unless mediation was held prior to commencement of the action in accordance with Public Contract Code section 9204 and the terms of this Contract. The mediation process shall provide for the selection within 15 Days by both parties of a disinterested third person as mediator, shall be commenced within 30 Days of the submittal, and shall be concluded within 15 Days from the commencement of the mediation unless a time requirement is extended upon a good cause showing to the court.

B. If the matter remains in dispute, the case shall be submitted to judicial arbitration pursuant to Chapter

2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, notwithstanding Section 1114.11 of that code. The Civil Discovery Act of 1986 (Article 3 (commencing with Section 2016) of Chapter 3 of Title 3 of Part 4 of the Code of Civil Procedure) shall apply to any proceeding brought under this subdivision consistent with the rules pertaining to judicial arbitration. In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the Code of Civil Procedure, (A) arbitrators shall, when possible, be experienced in construction law, and (B) any party appealing an arbitration award who does not obtain a more favorable judgment shall, in addition to payment of costs and fees under that chapter, also pay the attorney’s fees on appeal of the other party.

4.7 GOVERNMENT CODE CLAIMS
In addition to any and all contract requirements pertaining to notices of and requests for compensation or payment for extra Work, disputed Work, construction claims and/or changed conditions, Design-Build Entity must comply with the claim procedures set forth in Government Code Sections 900, et seq. prior to filing any lawsuit against the City. Such Government Code claims and any subsequent lawsuit based upon the Government Code claims shall be limited to those matters that remain unresolved after all procedures pertaining to extra Work, disputed Work, construction claims, and/or changed conditions have been followed by Design-Build Entity. If no such Government Code claim is submitted, or if the prerequisite contractual requirements are not satisfied, no action against the City may be filed. A Government Code claim must be filed no earlier than the date the Work is completed, or the date Design-Build Entity last performs Work on the Project, whichever occurs first. A Government Code claim shall be inclusive of all unresolved claims unless a new unrelated claim arises after the Government Code claim is submitted.

4.8 WAIVER
A. A waiver of, or failure by, City or City’s Representative to enforce any requirement in this Article 4, including, without limitation, the requirements in connection with any Claim shall not constitute a waiver of, and shall not preclude City or City’s Representative from enforcing such requirements in connection with any other Claims.

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B. The Design-Build Entity agrees and understands that no oral approval, either express or implied, of any Claim shall be binding upon City unless and until such approval is ratified by execution of a written Change Order.

ARTICLE 5 - Subcontractors

5.1 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK A. All portions of the work on the Project for which Subcontractors were not listed by the Design-Build Entity in its response to the RFP or RFQ for the Project, shall be awarded by the Design-Build Entity pursuant to the requirements described in Article 5.4 below.

B. The Design-Build Entity shall submit to City’s Representative after selecting Subcontractors, an updated expanded list of Subcontractors, along with their respective addresses, telephone numbers, e-mail addresses and contractor’s license numbers. The expanded list of Subcontractors shall be provided and/or updated no later than ten (10) days after the date which the Design-Build Entity awards a contract for any portion of the work to a Subcontractor not originally listed in the DesignBuild Entity’s Proposal.

C. City has the right to request all documentation that supports the Design-Build Entity’s selection of a Subcontractor. City shall have the right of final approval as to the qualifications of a Subcontractor to perform its designated scope of work. Within City’s discretion, any Subcontractor may be deemed not qualified to perform work on the Project if City or City’s Representative determines that the Subcontractor fails to meet the requirements of the Contract Documents, or for any other reason.

D. The Subcontractors listed by the Design-Build Entity shall only be substituted in strict accordance with the “Subletting and Subcontracting Fair Practices Act” and upon the written consent of City. Only upon compliance with the “Subletting and Subcontracting Fair Practices Act” and with the written consent of City shall a substitution be made.

E. Any increase in the cost of the work on the Project resulting from the replacement or substitution of a Subcontractor pursuant to this Article 5.1 or as required by City or City’s Representative pursuant to this Article 5.1, shall be borne solely by the Design-Build Entity. The Design-Build Entity shall not be entitled to any increase in Guaranteed Maximum Price or an extension of Guaranteed Completion Date due to such replacement or substitution.

F. The Design-Build Entity shall require, in each subcontract for any portion of work on the Project, the Subcontractor to indemnify City, City’s Representative and its consultants, representatives, directors, officers, agents and employees, pursuant to the provisions set forth in Article 3.33.

5.2 SUBCONTRACTUAL RELATIONS
A. Any part of the work on the Project performed for the Design-Build Entity by a first tier Subcontractor shall be pursuant to a written subcontract. Each such subcontract shall require the Subcontractor, to the extent of the work to be performed by the Subcontractor, to be bound to the Design-Build Entity by the terms of the Contract Documents, to assume toward the Design-Build Entity all the obligations and responsibilities which the Design-Build Entity assumes towards City by the Contract Documents, and to perform such portion of the work on the Project in accordance with the Contract Documents. Each such subcontract shall preserve and protect the rights of City under the Contract Documents, with respect to the work to be performed by Subcontractor, so that subcontracting thereof will not prejudice such rights. The Design-Build Entity shall cause each such subcontract to expressly include the following requirements:

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1. Subcontractor waives all rights that Subcontractor may have against City for damages caused by fire or other perils covered by builder’s risk property insurance carried by Design-Build Entity or City, except for such rights Subcontractor may have to the proceeds of such insurance held by City under Article 11.1.

2. City and entities and agencies designated by City will have access to and the right to audit and the right to copy at City’s cost all of Subcontractor’s books, records, contracts, correspondence, instructions, drawings, receipts, vouchers, purchase orders, and memoranda relating to work on the Project. Subcontractor shall preserve all such records and other items for a period of at least 3 years after Final Completion.

3. Subcontractor recognizes the rights of City under Article 5.3, Contingent Assignment of Subcontracts, and agrees, upon notice from City that City has elected to accept said assignment and to retain Subcontractor pursuant to the terms of the subcontract, to complete the unperformed obligations under the subcontract and, if requested by City, to execute a written Contract confirming that Subcontractor is bound to City under the terms of the subcontract.

4. The Design-Build Entity is responsible for reviewing and coordinating the work of and among his Subcontractors and Design Professionals. This review and coordination includes, but is not limited to, resolution of any inconsistencies, errors or omissions.

B. Upon the request of City, the Design-Build Entity shall promptly furnish to City a true, complete, and executed copy of any subcontract.

C. Nothing contained in the Contract Documents shall create any contractual relationship between any Subcontractor and City, except when, and only to the extent that, City elects to accept the assignment of the subcontract with such Subcontractor pursuant to Article 5.3.

5.3 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
A. The Design-Build Entity hereby assigns to City all its interest in first tier subcontracts now or hereafter entered into by the Design-Build Entity for performance of any part of the work on the Project. The assignment will be effective upon acceptance by City in writing and only as to those subcontracts which City designates in writing. City may accept said assignment at any time during the course of the work on the Project and prior to Final Completion in the event of a suspension or termination of the Design-Build Entity’s rights under the Contract Documents. Such assignment is part of the consideration to City for entering into the Contract with the Design-Build Entity and may not be withdrawn prior to Final Completion.

5.4 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK A. All Subcontractors shall be retained in accordance with the Subletting and Subcontracting Fair Practices Act (Public Contract Code Section 4100 et seq.) The Design-Build Entity shall not, without the consent of City: substitute any person or entity as a Subcontractor in place of the Subcontractor designated in the Proposal; permit any such Subcontractor to be assigned or transferred, or allow it to be performed by any person or entity other than the original Subcontractor listed in the Proposal; sublet or subcontract any portion of the work on the Project in excess of one-half of one percent (.5%) of the Guaranteed Maximum Price as to which its Proposal did not designate a Subcontractor.

Any assignment or substitution made without the prior written consent of the awarding authority or not in compliance with the Subletting and Subcontracting Fair Practices Act shall be void, and the assignees shall acquire no rights in the Contract. Any consent, if given, shall not relieve the DesignBuild Entity or its Subcontractors from their obligations under the terms of the Contract. All requests by the Design-Build Entity for substitution will be handled through City’s Representative.

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B. All Subcontractor and Sub-Subcontractor substitutions shall be made pursuant only to the Subletting and Subcontracting Fair Practices Act found at Public Contract Code Section 4100 et seq.

C. Any substitutions of Subcontractors shall not result in any increase in the Guaranteed Maximum Price or result in the granting of any extension of Guaranteed Completion Date for the completion of the Project.

D. Substitutions due to a claim of inadvertent clerical error shall be made pursuant to Public Contract Code Section 4107.5.

5.5 SUBCONTRACTUAL RELATIONS
By appropriate agreement, written where legally required for validity, the Design-Build Entity shall require each Subcontractor, to the extent of the work to be performed by the Subcontractor, to be bound to the Design-Build Entity by terms of the Contract, and to assume toward the Design-Build Entity all obligations and responsibilities, which the Design-Build Entity, by the Contract, assumes toward City. Each subcontract shall preserve and protect the rights of City and the Architect of Record under the Contract with respect to the work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights, and shall allow to the Subcontractor, unless specifically provided otherwise in the subcontract, the benefit of all rights, remedies, and redress against the Design-Build Entity that the Design-Build Entity, by the Contract, has against City. Where appropriate, the Design-Build Entity shall require each Subcontractor to enter into similar agreements with Sub-Subcontractors. The Design-Build Entity shall make available to each proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract to which the Subcontractor will be bound. Upon written request of the Subcontractor, the Design-Build Entity shall identify to the Subcontractor the terms and conditions of the proposed subcontract agreement which may be at variance with the Contract. Subcontractors shall similarly make copies of applicable portions of such documents available to their respective proposed Sub-Subcontractors.

5.6 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
Any subcontract for a portion of the work on the Project may be assigned by the Design-Build Entity to City provided that both of the following requirements are met:

1. Assignment is effective only after termination of the Contract with the Design-Build Entity by City for cause pursuant to Article 13.2, and only for those subcontracts which City accepts by notifying the Subcontractor in writing; and

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

5.7 SUBCONTRACTOR’S RESPONSIBILITIES
Every Subcontractor is bound to the following provisions, subject to the limitations of Article 5.3 above.

A. Subcontractors shall efficiently supervise their work, using their best skill and attention. Each of them shall carefully study and compare all Drawings, Specifications, and other instructions, shall at once report to the Design-Build Entity any error or omission which any of them may discover, and shall subsequently proceed with the work in accordance with instructions from the Design-Build Entity concerning such error or omission. Each Subcontractor shall be fully responsible for and shall bear the full risk of loss of all of its property.

B. Each Subcontractor shall at all times enforce strict discipline and good order among its Subcontractors, material or equipment suppliers, or their agents, employees, and invitees, and shall establish and maintain surveillance over the activities of each of the foregoing to minimize any

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disturbance, damage, pollution, or unsightly conditions relative to property areas adjacent to or in the vicinity of the Project site. The Subcontractor shall not employ on the Project any unfit person or anyone not skilled in the task assigned. The Design-Build Entity shall have the right to remove from the Project any employee of a Subcontractor for any reason including, without limitation, incompetence or carelessness.

C. Should the proper and accurate performance of the work on the Project depend upon the proper and accurate performance of other work not included in its agreement, each Subcontractor shall use all necessary means to discover any defect in such other work and shall allow the Design-Build Entity or other Subcontractors as the Design-Build Entity elects a reasonable amount of time to remedy such defects. If the Subcontractor should proceed with its work, it shall be considered to have accepted such other work, unless the Subcontractor shall have proceeded pursuant to instructions in writing by the Design-Build Entity over its written objection.

D. Each Subcontractor shall submit to City or the Design-Build Entity, as the case may be, promptly when requested by any of the foregoing, information with respect to the names, responsibilities, and titles of the principal members of its staff, the adequacy of the Subcontractor’s equipment and the availability of necessary materials and supplies. Subcontractor shall fully cooperate with DesignBuild Entity in its periodic review of the adequacy of Subcontractor’s supervision, personnel, and equipment, and the availability of necessary materials and supplies and shall promptly comply with the requirements of the Design-Build Entity with respect thereto.

E. Each Subcontractor shall furnish at its expense its own temporary facilities and storage except those specifically agreed to be furnished to it by the Design-Build Entity in the subcontract. Subcontractor’s material storage rooms and field offices, etc., will be placed in locations designated by the DesignBuild Entity. When it becomes necessary due to the progress of the Project for the Subcontractor to relocate its field operations, it will do so in an expeditious manner and at no additional cost to DesignBuild Entity or City. The construction of material storage rooms and field offices, etc., will be of fire resistive material only, such as concrete or gypsum block, rated drywall, or sheet metal.

F. Each Subcontractor may be subject to the Design-Build Entity’s reasonable charges for hoisting, repair to other work caused by the fault or negligence of Subcontractor, removal of Subcontractor’s rubbish, and clean-up occasioned by Subcontractor.

G. Subcontractor shall comply with and pay any fines or penalties imposed for violation of any applicable law, ordinance, rule, regulation, Environmental Impact Report mitigation requirement, and lawful order of any public authority, including, without limitation, all OSHA and California OSHA requirements and those of other authorities having jurisdiction of the safety of persons or property.

H. Each Subcontractor shall not display on or about the Project any sign, trademark, or other advertisement. City will permit a single Project sign, which shall be subject to City’s prior and sole discretion and approval, as to all matters including, without limitation, size, location, material, colors, style and size of printing, logos and trademarks (if any), text, and selection of names to be displayed.

I. I. Without limitation of any other right or remedy available to the Design-Build Entity under the Contract or at law, should the Subcontractor: (1) fail to perform its portion of the work on the Project in a skilled and expeditious manner in accordance with the terms of the subcontract with sufficient labor, materials, equipment, and facilities; (2) delay the progress of the job; (3) otherwise fail in any of its obligations; (4) have a receiver appointed for the Subcontractor; or (5) be declared bankrupt or insolvent, and such appointment, bankruptcy, or insolvency proceeding or declaration is not set aside within thirty (30) days, then the Design-Build Entity, upon three (3) days’ notice to the Subcontractor (subject to the requirements of Public Contracts Code § 4107), may provide such labor, materials, or perform such work and recover the cost plus profit and overhead from monies due or to become due thereafter to the Subcontractor. The Design-Build Entity may terminate the employment of the

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Subcontractor, taking possession of its tools, materials, and equipment related to the work on the Project and cause the entire portion of the Subcontractor’s work to be finished either by another Subcontractor or through the Design-Build Entity’s own forces.

J. In the event of any dispute as to whether or not any portion of the work on the Project is within the scope of the work to be performed by a Subcontractor, or any dispute as to whether or not the Subcontractor is entitled to a change order for any work requested of it, the Subcontractor shall continue to proceed diligently with the performance as required by the Design-Build Entity.

Regardless of the size or nature of the dispute, the Subcontractor shall not under any circumstances cease or delay performance of its portion of work on the Project during the existence of the dispute.

The Design-Build Entity shall continue to pay the undisputed amounts called for under the subcontract during the existence of the dispute. Any party stopping or delaying the progress of the work on the Project because of a dispute shall be responsible in damages to City, and the DesignBuild Entity for any losses suffered as a result of the delay.

K. The Design-Build Entity agrees to advise the Subcontractor if any documentation in connection with the Subcontractor’s application for payment has not been accepted or is in any way unsatisfactory.

L. L. The Design-Build Entity shall require each Subcontractor to comply with all procedures established by the Design-Build Entity for coordination among City, City’s consultants, the DesignBuild Entity, and the various Subcontractors for coordination of the work on the Project with all local municipal authorities, government agencies, utility companies, and any other agencies with jurisdiction over all or any portion of the work. The Subcontractor shall cooperate fully with all of the foregoing parties and authorities.

M. The Design-Build Entity shall require each Subcontractor to comply with all on-site record keeping systems established by the Design-Build Entity and shall, upon the request of the Design-Build Entity, provide the Design-Build Entity with such information and reports as the Design-Build Entity may deem appropriate. Without limitation of the foregoing, the Subcontractor shall assemble all required permits and certificates so that they are readily accessible at the Project site.

N. The specific requirements of Article 5 are not intended to exclude the obligation of the Subcontractor to comply with any of the other provisions of the General Conditions and the Contract Documents which are relevant to the proper performance of its portion of the work on the Project.

O. The Design-Build Entity shall require all Subcontractors to commence their work within two (2) days after the Design-Build Entity provides them with a notice to begin, and shall require all Subcontractors to diligently prosecute their work in accordance with the Project Schedule, so as to allow the Project to be totally and adequately completed within the Guaranteed Completion Date.

ARTICLE 6 - Construction by City or by Separate Contractors

6.1 CITY’S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS A. City reserves the right to award separate contracts for, or to perform with its own forces, construction or operations related to the work or other construction or operations at or affecting the Project site, including portions of work on the Project which have been deleted by Change Order. The DesignBuild Entity shall cooperate with City’s forces and Separate Contractors.

B. City will provide coordination of the activities of City’s forces and of each Separate Contractor with the work of the Design-Build Entity. The Design-Build Entity shall participate with City and Separate Contractors in joint review of construction schedules and Project requirements when directed to do so. The Design-Build Entity shall make necessary revisions to the Contract Schedule after such joint review.

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6.2 MUTUAL RESPONSIBILITY
A. The Design-Build Entity shall afford City and Separate Contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities. The Design-Build Entity shall connect, schedule, and coordinate its construction and operations with the construction and operations of City and Separate Contractors as required by the Contract Documents.

B. If a portion of the work on the Project is dependent upon the proper execution or results of other construction or operations by City or Separate Contractors, the Design-Build Entity shall inspect such other design or construction or operations before proceeding with that portion of the work on the Project. The Design-Build Entity shall promptly report to City’s Representative apparent discrepancies or defects which render the other design, construction or operations unsuitable to receive the work on the Project. Unless otherwise directed by City’s Representative, the DesignBuild Entity shall not proceed with the portion of the work on the Project affected until apparent discrepancies or defects have been corrected. Failure of the Design-Build Entity to so report within a reasonable time after discovering such discrepancies or defects shall constitute an acknowledgment that the other construction or operations by City or Separate Contractors is suitable to receive the work on the Project, except as to defects not then reasonably discoverable.

6.3 CITY’S RIGHT TO CLEAN UP
A. If a dispute arises between the Design-Build Entity and Separate Contractors as to the responsibility under their respective contracts for maintaining the Project site and surrounding areas free from waste materials and rubbish, City may clean up and allocate the cost between those firms City deem to be responsible.

ARTICLE 7 - CHANGES IN THE SCOPE OF WORK

7.1 CHANGES
A. City may, from time to time, order or authorize additions, deletions, and other changes in the Scope of Work by Change Order or Field Order without invalidating the Contract and without notice to sureties. Absence of such notice shall not relieve such sureties of any of their obligations to City.

B. The Design-Build Entity may request a Change Order under the procedures specified in Article 4.2.

C. A Field Order, as defined below, may be issued by City; such Field Order requires the prior signature of the Architect of Record, but does not require the agreement of the Design-Build Entity, and shall be valid with or without the signature of the Design-Build Entity.

D. The Design-Build Entity shall proceed promptly with any changes in the Scope of Work, unless otherwise provided in the relevant Change Order, City Directed Change Order or Field Order.

7.2 DEFINITIONS
A. A Change Order becomes a Contract Document when: (i) it is an City Directed Change Order as described in Article 7.2B; or (ii) after it has been signed by both City and the Design-Build Entity, and states their agreement upon all of the following:

1. A change in the Scope of Work, if any.

2. The amount of an adjustment of the Guaranteed Maximum Price, billed as Extra Work pursuant to Attachment 2 to the Contract, if any.

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3. The amount of an adjustment of the Guaranteed Completion Date, if any.

B. An City Directed Change Order is a type of Change Order which may be issued by City and incorporated into the Contract Documents without the Design-Build Entity’s signature, where City determine that it is in City’s best interest to adjust the Guaranteed Maximum Price and/or Guaranteed Completion Date as City believe necessary, even though no agreement has been reached between City and the Design-Build Entity.

C. A Field Order is a preliminary to a Change Order that describes a change in the Scope of Work, the estimated adjustments of the Guaranteed Maximum Price and/or the Guaranteed Completion Date, if any, and orders a change in the Scope of Work before all of the terms of the change are fully agreed upon by City and the Design-Build Entity. A Field Order must eventually be memorialized as a Change Order or an City Directed Change Order and incorporated into the Contract Documents.

7.3 CHANGE ORDER PROCEDURES
A. When requested by City’s Representative, the Design-Build Entity shall provide promptly, but in no event longer than fourteen (14) days from the date of the request, a cost proposal setting forth the Design-Build Entity’s proposed adjustments of the Guaranteed Maximum Price and/or the Guaranteed Completion Date, if any, for performing the proposed change in the Scope of Work.

Adjustments of the Guaranteed Maximum Price resulting from Extra Work and/or deductive work shall be determined using one of the methods described in Article 7. Adjustments of the Guaranteed Completion Date shall be subject to the provisions in Article 8.

B. The term “Cost of Extra Work” as used in this Article shall mean actual costs incurred by the DesignBuild Entity and each Subcontractor regardless of tier involved, and shall be limited to the following (and except for items 1 and 10 only to the extent the Design-Build Entity demonstrates that the cost items were actually incurred):

1. Overhead and Profit not to exceed 15% of the Cost of Extra Work (not more than 10% Overhead and 5% Profit) and straight time wages or salaries for employees employed at the Project site, or at fabrication sites off the Project site, in the direct performance of the Extra Work.

2. Fringe benefits and payroll taxes for employees employed at the Project site, or at fabrication sites off the Project site, in the direct performance of the Extra Work.

3. Overtime wages or salaries, specifically authorized in writing by City’s Representative, for employees employed at the Project site, or at fabrication sites off the Project site, in the direct performance of the Extra Work.

4. Fringe benefits and payroll taxes for overtime work specifically authorized in writing by City’s Representative, for employees employed at the Project site, or at fabrication sites off the Project site, in the direct performance of the Extra Work.

5. Costs of materials and consumable items which are furnished and incorporated into the Extra Work, as approved by City’s Representative. Such costs shall be charged at the lowest price available to the Design-Build Entity but in no event shall such costs exceed competitive costs obtainable from other Subcontractors, suppliers, manufacturers, and distributors in the area of the Project site. All discounts, rebates, and refunds and all returns from sale of surplus materials and consumable items shall accrue to City and the Design-Build Entity shall make provisions so that they may be obtained.

6. Sales taxes on the costs of materials and consumable items which are incorporated into and used in the performance of the Extra Work pursuant to Article 7.3B(5) above.

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7. Rental charges for necessary machinery and equipment, whether owned or hired, as authorized in writing by City’s Representative, exclusive of hand tools, used directly in the performance of the Extra Work. Such rental charges shall not exceed the current U.S. Army Corp. of Engineers scheduled charges for the area in which the work is performed. The Design-Build Entity shall attach a copy of said schedule to the cost proposal. The charges for any machinery and equipment shall cease when the use thereof is no longer necessary for the Extra Work.

8. Additional costs of royalties and permits due to the performance of the Extra Work.

9. Cost for revisions in the Schematic Design Documents or Construction Documents in accordance with the rates set forth in Attachment 1 to the Contract, when such revisions are inconsistent with approvals or instructions previously given by City.

10. The markup for insurance and bonds require herein shall be 1 % each of the subtotal of items 1 through 9 above.

C. Cost of Extra Work shall not include any of the following:

1. Superintendent(s).

2. Assistant Superintendent(s).

3. Project Engineer(s).

4. Project Manager(s).

5. Scheduler(s).

6. Estimator(s).

7. Incidental drafting or detailing.

8. Small tools (replacement value does not exceed $300).

9. Office expenses including staff, materials and supplies.

10. On site or off site trailer and storage rental and expenses.

11. Site fencing.

12. Utilities including gas, electric, sewer, water, telephone, facsimile, copier equipment.

13. Data processing personnel and equipment.

14. Federal, state, or local business income and franchise taxes.

15. Overhead and profit in excess 15% of the Cost of Extra Work. Of the 15%, not more than 10% shall consist of overhead and 5% of profit.

16. Costs and expenses of any kind or item not specifically and expressly included in Article 7.3B.

17. Costs in Article 7.3B(9) in excess of the hourly rates included in the Design Build Contract, Attachment 1.

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D. Compensation for Extra Work as an adjustment to the Guaranteed Maximum Price, authorized by Change Order shall be computed as specified in the Design Build Contract, Attachment 1.

E. As a condition to the Design-Build Entity’s right to an adjustment of the Guaranteed Maximum Price, pursuant to Article 7.3, the Design-Build Entity must keep daily detailed and accurate records itemizing each element of cost and shall provide substantiating records and documentation, including time cards and invoices. Such records and documentation shall be submitted to and approved by City’s Representative on a reasonable basis.

F. For work to be deleted by Change Order, the reduction of the Guaranteed Maximum Price shall be computed on the basis of one or more of the following:

1. Unit prices stated in the Contract or an Attachment thereto.

2. Unit prices agreed upon by City and the Design-Build Entity.

3. A lump sum agreed upon by City and the Design-Build Entity, based upon the actual costs which would have been incurred in performing the deleted portions of the work on the Project as calculated in accordance with Articles 7.3B and 7.3C.

G. If any single Change Order involves both Extra Work and deleted work in the same portion of the work on the Project, the Guaranteed Maximum Price shall not be increased if the deductive cost exceeds the additive cost. If the additive cost exceeds the deductive cost, an increase in the Guaranteed Maximum Price will be allowed only on the difference between the two amounts.

H. The Guaranteed Maximum Price will be adjusted for Excusable Delay, which for the purposes of this Article exists if, and only if, the Design-Build Entity demonstrates that all of the following four conditions are met:

1. Condition Number One: The delay results in an extension of the Guaranteed Completion Date pursuant to Article 8.4.

2. Condition Number Two: The delay is caused solely by one, or more of the following:
a. An error or omission in the Contract Documents caused by City and not as a result of the Design-Build Entity’s failure to conform to criteria documents, performance standards, Construction Documents, or Contract Documents; or
b. City’s decision to change the Scope of Work, where such decision is not the result of any default or misconduct of the Design-Build Entity; or
c. City’s decision to suspend work on the Project, where such decision is not the result of any default or misconduct of the Design-Build Entity; or
d. The failure of City, City’s Representative, or Separate Contractors to timely perform any contract obligation where the failure to so perform is not the result of any default or misconduct of the Design-Build Entity.

3. Condition Number Three: The delay is not concurrent with a delay that is:
a. Critical under Article 8.4A(2); and
b. Caused by an event not listed in Article 7.3H(2).

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4. Condition Number Four: The delay is not caused, in whole or in part, by an event not listed in Article 7.3H(2).

I. For each day of delay that meets all four conditions prescribed in Article 7.3H the Guaranteed Maximum Price will be equitably adjusted including with reference to the rates for Extra Work as included in the Contract.

J. Except as provided in Articles 7 and 8, the Design-Build Entity shall have no claim for damage or compensation for any delay, interruption, hindrance, or disruption.

K. If for any reason one or more of the conditions prescribed in Article 7.3H is held legally unenforceable, the remaining conditions must be met as a condition to obtaining an adjustment of the Guaranteed Maximum Price.

7.4 FIELD ORDERS
A. A Field Order as described in Article 7.2C above, may be issued by City. If requested in writing, the Design-Build Entity shall promptly provide City’s Representative with a cost proposal, setting forth the proposed adjustments of the Guaranteed Maximum Price and/or the Guaranteed Completion Date, if any, for performing the change in the Scope of Work. The Field Order will be superseded by a Change Order which shall include the actual adjustments, if any, of the Guaranteed Maximum Price and the Guaranteed Completion Date, as well as the change in the Scope of Work.

B. A Field Order signed by the Design-Build Entity indicates the agreement of the Design-Build Entity therewith, including the Design-Build Entity’s agreement to the proposed adjustments to the Guaranteed Maximum Price and/or the Guaranteed Completion Date stated therein. Such agreement shall be effective immediately and will be incorporated into a Change Order.

C. Upon receipt of a Field Order, the Design-Build Entity shall promptly proceed with the change in the Scope of Work.

D. If the Design-Build Entity does not agree to the adjustment of the Guaranteed Maximum Price set forth in a Field Order, the amount shall be determined in accordance with the provisions of Article

7.3D above; and the Design-Build Entity shall comply with the provisions of Article 7.3E regarding records and documentation of actual costs.

7.5 VARIATION IN QUANTITY OF UNIT PRICE WORK
A. City has the right to increase or decrease the quantity of any Unit price item for which an estimated quantity is stated in the Bid Form. Changes of more than 25 percent will be reviewed for a unit price adjustment.

7.6 WAIVER
A. A waiver of, or failure by, City or City’s Representative to enforce any requirement in this Article 7 in connection with any adjustment of the Guaranteed Maximum Price, will not constitute a waiver of, and will not preclude City, or City’s Representative, from enforcing, such requirements in connection with any other adjustments of the Guaranteed Maximum Price.

B. The Design-Build Entity agrees and understands that no oral approval, either express or implied, of any adjustment of the Guaranteed Maximum Price by City or its agents shall be binding upon City unless and until such approval is ratified by execution of a written change order.

C. Nothing in this Article precludes Design-Build Entity from pursuing costs through the claim process.

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ARTICLE 8 - GUARANTEED COMPLETION DATE

8.1 COMMENCEMENT OF WORK ON THE PROJECT
A. The date of commencement of the Scope of Work shall be set forth in the Notice To Proceed. The date of commencement for the Scope of Work shall not be postponed by the failure of the DesignBuild Entity, Subcontractors, or of persons or firms for whom the Design-Build Entity is responsible, to act.

8.2 PROGRESS AND COMPLETION
A. By signing the Contract:

1. The Design-Build Entity represents to City that the Guaranteed Completion Date is reasonable for performing the Scope of Work and that the Design-Build Entity is able to perform and complete the Scope of Work within the Guaranteed Completion Date.

2. The Design-Build Entity agrees that City is purchasing the right to have the Design-Build Entity present on the Project for the full duration of the time period necessary to complete the Scope of Work described in the RFP.

B. The Design-Build Entity shall not, except by agreement or instruction of City in writing, commence operations on the Project site or elsewhere prior to the effective date of insurance required by Article

11.1 to be furnished by the Design-Build Entity. The date of commencement and the Guaranteed Completion Date shall not be changed by the effective date of such insurance.

C. The Design-Build Entity shall proceed expeditiously with adequate forces and shall achieve full completion of the work by the Guaranteed Completion Date. If City’s Representative determines and notifies the Design-Build Entity that the Design-Build Entity’s progress is such that the DesignBuild Entity will not achieve full completion of the work by the Guaranteed Completion Date, the Design-Build Entity shall immediately and at no additional cost to City, take all measures necessary, including working such overtime, additional shifts, Sundays, or holidays as may be required to ensure that the entire Project is completed within the Guaranteed Completion Date. Upon receipt of such notice from City’s representative, the Design-Build Entity shall immediately notify City’s Representative of all measures to be taken to ensure full completion of the work within the Guaranteed Completion Date. The Design-Build Entity shall reimburse City for any extra costs or expenses (including the reasonable value of any services provided by City’s employees) incurred by City as the result of such measures.

8.3 DELAY
A. There are only two kinds of delay, Excusable Delay and Unexcusable Delay. Only Excusable Delay, that meets the requirements specified herein may result in the adjustment of the Guaranteed Completion Date, and/or the Guaranteed Maximum Price and may be compensated as Extra Work as described below. All other delay(s) are Unexcusable, and except and only to the extent provided otherwise in Articles 7 and 8, by signing the Contract, the Design-Build Entity agrees:

1. to bear the risk of Unexcusable Delays to completion of the work on the Project; and

2. that the Proposal was made with full knowledge of this risk.

In agreeing to bear the risk of Unexcusable Delays to completion of the work on the Project, the Design-Build Entity understands that, except and only to the extent provided otherwise in Articles 7 and 8, the occurrence of events that result in any delay in completion of the work on the Project shall

ATTACHMENT 5
not excuse the Design-Build Entity from its obligation to achieve full completion of the work on the Project within the Guaranteed Completion Date, and shall not entitle the Design-Build Entity to an adjustment of the Guaranteed Maximum Price.

8.4 ADJUSTMENT OF THE GUARANTEED COMPLETION DATE FOR EXCUSABLE DELAY A. The Guaranteed Completion Date will be extended for an Excusable Delay, if and only if, the DesignBuild Entity demonstrates that all of the following six conditions are met:

1. Condition Number One: When the event causing the delay commences, the Design-Build Entity has complied with all Contract requirements for maintaining, submitting, and updating Contract Schedules.

2. Condition Number Two: The delay is critical. A delay is critical if and only to the extent it delays a work activity that cannot be delayed without delaying completion of the entire Project beyond the contractually specified date for full completion of the work on the Project as stated in the Notice to Proceed, or as amended by Change Order. Under this Article 8.4A(2):
a. If the Contract Schedule shows completion of the entire Project before the contractually specified date for full completion of the work on the Project, a delay is critical if and only to the extent the delay pushes completion of the entire project to a date that is beyond the contractually specified date for full completion of the Project. b. When two or more delays occur concurrently, and each such concurrent delay by itself without consideration of the other delays would be critical, then all such concurrent delays shall be considered critical. For the purpose of determining whether and to what extent the Guaranteed Completion Date should be adjusted pursuant to Article 8.4B, such concurrent critical delays shall be treated as a single delay which commences at the start of the delay that begins first and terminates at the cessation of the delay that ends last.

3. Condition Number Three: The delay is supported by the Contract Schedule (or, if appropriate, the Preliminary Schedule), current at the commencement of the event giving rise to the delay.

A delay is supported only to the extent the Contract Schedule (or, if appropriate, the Preliminary Schedule) corroborates that it causes a delay to completion of the entire Project beyond the contractually specified date for full completion because of its effect on the operation referred to in Article 8.4A(2). The requirement that a delay be supported will be excused if the event causing the delay commences before approval of the Contract Schedule, provided that the absence of an approved Contract Schedule is not due to the Design-Build Entity’s failure to timely submit an acceptable proposed Contract Schedule.

4. Condition Number Four: Within fourteen (14) days of the date the Design-Build Entity discovers or reasonably should discover an act, error, omission or unforeseen condition causing the delay, (even if the Design-Build Entity has not been delayed when the Design-Build Entity discovers or reasonably should discover the act, error, omission or unforeseen condition giving rise to the delay) the Design-Build Entity submits a timely Change Order Request that meets the requirements of Article 4.2.

5. Condition Number Five: The delay is not caused by:
a. A naturally occurring unforeseen site condition not anticipated in the Contract Documents (e.g., unanticipated naturally occurring rock or sand); or b. The financial inability, misconduct or default of the Design-Build Entity, a Subcontractor or supplier; or

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c. The unavailability of materials or parts, as long as such materials or parts were timely ordered by Design-Build Entity within thirty (30) days of the issuance of the Notice to Proceed; or
d. An error or omission in the Contract Documents caused by the Design-Build Entity or the Design-Build Entity’s design consultants.

6. Condition Number Six: The delay is caused by:
a. Fire; or
b. Strikes, boycotts, or like obstructive actions by employees or labor organizations; or c. Acts of God, including earthquakes in excess of a magnitude of 3.5 on the Richter Scale, tidal waves, floods, unusually severe weather, epidemic, or other severe natural disaster; or
d. A man made (not naturally occurring) unforeseen site condition such as buried utility lines, pipes, and the like; or
e. An error or omission in the Contract Documents caused by City; or f. City’s decision to change the Scope of Work, where such decision is not the result of any default or misconduct of the Design-Build Entity; or
g. City’s decision to suspend the work on the Project, where such decision is not the result of any default or misconduct of the Design-Build Entity; or h. The failure of City, City’s representative or a Separate Contractor to timely perform any Contract obligation unless such failure is due to the Design-Build Entity’s default or misconduct.

B. If and only if a delay meets all six conditions prescribed in Article 8.4A, then the Guaranteed Completion Date will be extended by the number of days completion of the entire Project is delayed beyond the Guaranteed Completion Date for full completion of the work on the Project.

C. If for any reason one or more of the six conditions prescribed in Article 8.4A is held legally unenforceable, then all remaining conditions must be met as a condition to obtaining an extension of the Guaranteed Completion Date under Article 8.4B.

8.5 COMPENSATION FOR EXTRA WORK DUE TO EXCUSABLE DELAY
A. To the maximum extent allowed by law, any adjustment of the Guaranteed Maximum Price as the result of Excusable Delays shall be limited to the amounts specified in Article 7.

B. By signing the Contract, the parties agree that City has the right to do any or all of the following, which are reasonable and within the contemplation of the parties:

1. To order changes in the Scope of Work, provided City will not direct extra work in excess of 10 percent of the construction portion of the Guaranteed Maximum Price, regardless of the extent and number of changes, including without limitation:
a. Changes to correct errors or omissions caused by City, if any, in the Contract Documents.

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b. Changes resulting from City’s decision to change the Scope of Work subsequent to execution of the Contract.
c. Changes due to unforeseen conditions.

2. To suspend work on the Project or any part thereof.

3. To delay work on the Project, including without limitation, delays resulting from the failure of City or City’s Representative to timely perform any Contract obligation and delays for City’s convenience.

8.6 WAIVER
A. A waiver of, or failure by, City or City’s Representative to enforce any requirement in this Article 8 in connection with any or all past delays shall not constitute a waiver of and shall not preclude City or City’s Representative from enforcing, such requirements in connection with any present or future delays.

B. The Design-Build Entity agrees and understands that no oral approval, either express or implied, of any time extension by City or its agents shall be binding upon City unless and until such approval is ratified by execution of a written Change Order.

ARTICLE 9 - Payments and Completion

9.1 COST BREAKDOWN/SCHEDULE OF VALUES
A. Within thirty (30) days after commencement of each phase of the Scope of Work, the Design-Build Entity shall submit to City’s Representative a detailed Cost Breakdown/Schedule of Values (“Cost Breakdown”) of the portion of the Guaranteed Maximum Price applicable to that phase of the work in a form reasonably approvable to City. Each such Cost Breakdown shall itemize as separate line items the cost of each work activity for the applicable phase and all associated costs, including but not limited to warranties, As-Built documents, overhead expenses, and the total allowance for profit.

Insurance and bonds shall each be listed as separate line items. The total of all line items shall at all times be consistent with the Guaranteed Maximum Price. The Cost Breakdown, when approved by City’s Representative, shall become part of the Contract Documents and shall be the basis for determining the amount of the work performed for the Design-Build Entity’s Applications for Payment.

9.2 PROGRESS PAYMENT
A. City agrees to pay monthly to the Design-Build Entity, subject to Article 9.4B, an amount equal to 95% of the sum of the following:

1. Cost of the Construction Work in permanent place as of the end of the preceding month.

2. Cost of materials not yet incorporated in the Construction Work, subject to Article 9.3E.

3. Less amounts previously paid.

4. During the Design Work, City shall pay the Design-Build Entity monthly a uniform amount prorated, based on the Guaranteed Completion Date and Guaranteed Maximum Price associated with either Schematic Design or Construction Documents Phase.

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B. At any time after 50% of the work on the Project has been completed, if City find that satisfactory progress of the work on the Project is being made, City may, in its sole discretion, make any of the remaining progress payments in full.

9.3 APPLICATION FOR PAYMENT
A. On or before the 10th day of the month or such other date as is established by the Contract Documents, the Design-Build Entity shall submit to City’s Representative an itemized Application For Payment, for the cost of the work in permanent place, as approved by City’s Representative, which has been completed in accordance with the Contract Documents as of the last day of the preceding month, plus materials stored or delivered in accordance with Article 9.3E, less amounts previously paid. The Application For Payment shall be prepared as follows:

1. In a form approved by City.

2. Itemized in accordance with the Cost Breakdown as applicable.

3. Include such data substantiating the Design-Build Entity’s right to payment as City’s Representative may reasonably require, such as invoices, certified payrolls, daily time and material records, and, if securities are deposited in lieu of retention pursuant to Article 9.5, a certification of the market value of all such securities as of a date not earlier than 5 days prior to the date of the Application For Payment as applicable.

4. Itemized retention.

B. Applications For Payment shall not include requests for payment on account of (1) changes which have not been authorized by Change Orders or (2) amounts the Design-Build Entity does not intend to pay a Subcontractor because of a dispute or other reason.

C. If required by City, an Application For Payment shall be accompanied by (1) a summary showing payments that will be made to Subcontractors covered by such application and (2) conditional and/or unconditional waivers and releases of claims and Stop Payment Notices from each Subcontractor listed in the preceding Application For Payment covering sums disbursed pursuant to the preceding Applications For Payment. City recognizes a pay application for October work is due by November 10, will likely be funded by City by December 10, and payment released by Design-Build Entity to Subcontractors/Suppliers by December 17, such that there is overlap for the November pay application due December 10 and unconditional releases have an approximate 90 day lag in being received from a pay application date. No payment will be held from Design-Build Entity because of this cycle.

D. The Design-Build Entity warrants that, upon submittal of an Application For Payment, all work on the Project, for which Certificates For Payment have been previously issued and payment has been received from City, shall be free and clear of all claims, Stop Payment Notices, security interests, and encumbrances in favor of the Design-Build Entity, Subcontractors, or other persons or firms entitled to make claims by reason of having provided labor, materials, or equipment relating to work on the Project.

E. City’s Representative shall approve for inclusion in the Application For Payment the cost of materials not yet incorporated in the Construction Work but already delivered and suitably stored either at the Project site or at some other appropriate location acceptable to City’s Representative. In such case, the Design-Build Entity shall furnish evidence satisfactory to City’s Representative (1) of the cost of such materials and (2) that such materials are under the exclusive control of the Design-Build Entity.

Only materials to be incorporated in the work on the Project will be considered for payment. Any payment shall not be construed as acceptance of such materials nor relieve the Design-Build Entity

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from sole responsibility for the care and protection of such materials; nor relieve the Design-Build Entity from risk of loss to such materials from any cause whatsoever; nor relieve the Design-Build Entity from its obligation to complete the work on the Project in accordance with the Contract; nor act as a waiver of the right of City to require fulfillment of all terms of the Contract.

9.4 APPROVAL OF CERTIFICATE FOR PAYMENT BY City
A. If the Design-Build Entity has made Application for Payment in accordance with Article 9.3, City’s Representative shall, not later than 5 days after the date of receipt of the Application For Payment, issue to City, with a copy to the Design-Build Entity, a Certificate For Payment for such amount as City’s Representative determines to be properly due.

B. City may decide to withhold payment in whole, or in part, to the extent reasonably necessary to protect City if, in City’s opinion, the representations to City required of the Design-Build Entity pursuant to the Contract Documents cannot be made. Failure by City to deduct any sums from a progress payment shall not constitute a waiver of City’s right to such sums. City may keep any moneys which would otherwise be payable at any time hereunder and apply the same, or so much as may be necessary therefore, to the payment of any expenses, losses, or damages as determined by City, incurred by City for which the Design-Build Entity is liable under the contract. For instance, City may withhold payment, in whole or in part, to such extent as may be necessary to protect City from loss because of:

C. Failure to provide requested supporting documents, including those noted in Article 9.3A;
D. Defective work not timely remedied;
E. Stop Payment Notices. If any Stop Payment Notice or other lien is filed on the Project for labor, materials, supplies, equipment or any other thing of value claimed to have been furnished to or incorporated into the work on the Project, or for other alleged contribution thereto, City shall retain from payments otherwise due the Design-Build Entity, in addition to other amounts properly withheld under the Contract Documents, an amount equal to 125 percent (125%) of the amount claimed under such Stop Payment Notice; provided, however, that City will release such funds upon receipt of evidence satisfactory to City to the effect that the Design-Build Entity has resolved such claim, by settlement, Stop Payment Notice Bond or otherwise. All other provisions of state law with respect to Stop Payment Notices shall also apply;
F. Liquidated damages assessed against the Design-Build Entity; G. Reasonable doubt that the work on the Project can be completed for the unpaid balance of any Guaranteed Maximum Price or within the Guaranteed Completion Date; H. Damage to City, the Design-Build Entity, or Subcontractor, including any sums expended by or on behalf of City in performing any of the Design-Build Entity’s obligations under the Contract which the Design-Build Entity has failed to perform or has performed inadequately; I. Unsatisfactory prosecution of the work by the Design-Build Entity; J. Failure to store and properly secure materials;
K. Failure of the Design-Build Entity to submit on a timely basis, proper and sufficient documentation required by the Contract, including, without limitation, monthly progress schedules, shop drawings, submittal schedules, schedule of values, product data and samples, proposed product lists, executed change orders, and verified reports;

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L. Failure of the Design-Build Entity to maintain record drawings; M. Erroneous estimates by the Design-Build Entity of the value of the work on the Project performed, or other false statements in an Application for Payment;
N. Unauthorized deviations from the Contract Documents; O. Failure of the Design-Build Entity to prosecute the work on the Project in a timely manner in compliance with established progress schedules and completion dates; or P. Forfeiture of funds pursuant to the California Labor Code.

Q. Subject to the withholding provisions of Article 9.4B, City will pay the Design-Build Entity the amount set forth in the Certificate For Payment no later than 15 days after the issuance of the Certificate For Payment.

R. Neither City nor City’s Representative will have an obligation to pay or to see to the payment of money to a Subcontractor, except as may otherwise be required by law.

S. Neither a Certificate For Payment nor a progress payment made by City will constitute acceptance of Defective Work.

9.5 DEPOSIT OF SECURITIES IN LIEU OF RETENTION AND DEPOSIT OF RETENTION INTO ESCROW A. Pursuant to Public Contract Code Section 22300, the Design-Build Entity may substitute securities for any moneys withheld as a retention by City to ensure performance under the Contract. At the request and expense of the Design-Build Entity, securities equivalent to the amount withheld shall be deposited with City, or with a state or federally chartered bank in this state as the escrow agent, who shall then pay those moneys to the Design-Build Entity. Upon satisfactory completion of the Contract, the securities shall be returned to the Design-Build Entity.

B. Alternatively, the Design-Build Entity may request, and City shall make payment of retentions earned directly to the escrow agent selected by the Design-Build Entity. At the expense of the Design-Build Entity, the Design-Build Entity may direct the investment of the payments into securities and the Design-Build Entity shall receive the interest earned on the investments upon the same terms provided for in Public Contract Code Section 22300 for securities deposited by the Design-Build Entity. Upon satisfactory completion of the Contract, the Design-Build Entity shall receive from the escrow agent all securities, interest, and payments received by the escrow agent when City authorizes the escrow agent to release these funds to the Design-Build Entity, pursuant to the terms of Public Contract Code Section 22300.

C. Securities eligible for investment shall include those listed in Government Code Section 16430, bank or savings and loan certificates of deposit, interest-bearing demand deposit accounts, standby letters of credit, or any other security mutually agreed to by the Design-Build Entity and City.

D. The Design-Build Entity shall be the beneficial owner of any securities substituted for moneys withheld and shall receive any interest thereon.

E. The escrow agreement shall be in the form of the Escrow Agreement provided as part of the Contract.

9.6 BENEFICIAL OCCUPANCY
A. City reserves the right, at its option and convenience, to occupy or otherwise make use of any part of the Construction Work at any time prior to Substantial Completion or Final Completion upon 10

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days’ notice to the Design-Build Entity and upon mutual consent of the parties. Such occupancy or use is herein referred to as “Beneficial Occupancy.” Beneficial Occupancy shall be subject to the following conditions:

1. City’s Representative will make an inspection of the portion of the Project to be beneficially occupied and prepare a list of items to be completed or corrected prior to Final Completion.

Prior to Beneficial Occupancy, City will issue a Certificate of Beneficial Occupancy on City’s form.

2. Beneficial Occupancy by City shall not be construed by the Design-Build Entity as an acceptance by City of that portion of the Construction Work which is to be occupied.

3. Beneficial Occupancy by City shall not constitute a waiver of existing claims of City or the Design-Build Entity against each other.

4. City will pay all utility costs which arise out of the Beneficial Occupancy.

5. The Design-Build Entity shall provide, in the areas beneficially occupied and on a 24 hour and 7 day week basis as required, utility services, heating, and cooling for systems which are in operable condition at the time of Beneficial Occupancy. All responsibility for the operation and maintenance of equipment shall remain with the Design-Build Entity while the equipment is so operated. The Design-Build Entity shall submit to City an itemized list of each piece of equipment so operated with the date operation commences.

6. The Guarantee to Repair Periods, as defined in Article 12.2, will commence upon the first dates of actual occupancy or use of portions of the Construction Work actually occupied and equipment or systems fully utilized. Equipment or systems shall not be considered fully utilized until all parts of the Project served by the equipment or systems are actually occupied and used.

7. City will pay all normal operating and maintenance costs resulting from its use of equipment in areas beneficially occupied.

8. The Design-Build Entity shall not be responsible for providing security in areas beneficially occupied.

9. City will use its best efforts to prevent its Beneficial Occupancy from interfering with the conduct of the Design-Build Entity’s remaining work on the Project.

10. The Design-Build Entity shall not be required to repair damage caused by City in its Beneficial Occupancy.

11. Except as provided in this Article 9.6, there shall be no added cost to City due to Beneficial Occupancy.

12. The Design-Build Entity shall continue to maintain all insurance required by the Contract in full force and effect, but City shall provide insurance with primary coverage for its licensees, invitees and admittees.

9.7 SUBSTANTIAL COMPLETION
A. “Substantial Completion” means the stage in the progress of the Construction Work, as determined by City’s Representative, when the Construction Work is complete and in accordance with the Contract Documents except only for completion of minor items which do not impair City’s ability to occupy and fully utilize the Construction Work for its intended purpose.

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B. When the Design-Build Entity gives notice to City’s Representative that the Construction Work is substantially complete, unless City’s Representative determines that the Construction Work is not sufficiently complete to warrant an inspection to determine Substantial Completion, City’s Representative will inspect the Construction Work, and prepare and give to the Design-Build Entity a comprehensive list of items to be completed or corrected before establishing Substantial Completion. The Design-Build Entity shall proceed promptly to complete and correct items on the list. Failure to include an item on such list does not alter the responsibility of the Design-Build Entity to complete all Construction Work in accordance with the Contract Documents. City’s Representative will make an inspection to determine whether the Construction Work is substantially complete. If City’s Representative’s inspection discloses any item, whether or not included on the list, which must be completed or corrected before Substantial Completion, the Design-Build Entity shall, before issuance of the Certificate of Substantial Completion, complete or correct such item.

The Design-Build Entity shall then submit a request for another inspection by City’s Representative to determine Substantial Completion. Costs for additional inspection by City’s Representative shall be deducted from any monies due and payable to the Design-Build Entity.

C. When City’s Representative determines that the Construction Work is substantially complete, the Design-Build Entity will prepare and submit a Certificate of Substantial Completion to City, which, when signed by City, shall establish the date of Substantial Completion and the responsibilities of City and the Design-Build Entity for security, maintenance, utilities, insurance, and damage to the Construction Work. Unless otherwise provided in the Certificate of Substantial Completion, the Guarantee To Repair Period for the work on the Project covered by the Certificate of Substantial Completion, shall commence on the date of Substantial Completion of the Construction Work except that Substantial Completion shall not commence the Guarantee to Repair Period for any equipment or systems that:

1. Are not fully operational (equipment or systems shall not be considered fully operational if they are intended to provide service to any portion of the building which City has neither Beneficially Occupied nor accepted as Substantially Complete); or

2. Are not accepted by City.

The Guarantee To Repair Period for systems which become fully operational and accepted subsequent to Substantial Completion will begin on the date of their acceptance by City. The Certificate of Substantial Completion shall be submitted to City and the Design-Build Entity for their written acceptance.

D. The rates for Extra Work included in the Contract and specifically identified as the rates to be paid to the Design-Build Entity for Excusable Delays shall be reasonably applied to any delays occurring after the work on the Project is substantially completed.

9.8 FINAL COMPLETION AND FINAL PAYMENT
A. Upon receipt of notice from the Design-Build Entity that the work on the Project is ready for final inspection, City’s Representative will make such inspection. Final Completion shall be when City’s Representative determines that the work on the Project is fully completed and in accordance with the Contract Documents. City will file a Notice of Completion within 10 days after Final Completion.

After receipt of the final Application For Payment, if City’s Representative determines that Final Completion has occurred, City’s Representative will issue the final Certificate For Payment.

B. Neither final payment nor any retention shall become due until the Design-Build Entity submits the following items to City’s Representative:

1. The final Application For Payment and all submittals required in accordance with Article 9.3.

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2. All guarantees and warranties procured by the Design-Build Entity from Subcontractors, all operating manuals for equipment installed in the Project, As-Built documents, and all other submittals required by the Contract Documents.

3. The final payment shall be made, subject to the satisfaction of all other legal conditions to final payment, thirty-five (35) days after the timely recording of the Notice of Completion. However, City reserves the right to hold the final check until such time as City has received the As-Built drawings from the Design-Build Entity.

C. Acceptance of final payment by the Design-Build Entity shall constitute a waiver of all claims, except those previously made in writing and identified by the Design-Build Entity as unsettled at the time of the final Application For Payment, and Design-Build Entity shall submit a waiver of all such claims, in a form reasonably acceptable to City, at the time of final payment.

ARTICLE 10 - Protection of Persons and Property

10.1 SAFETY PRECAUTIONS AND PROGRAMS
A. The Design-Build Entity shall be solely responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of the Contract.

10.2 SAFETY OF PERSONS AND PROPERTY
A. The Design-Build Entity shall take adequate precautions for safety of and shall provide adequate protection to prevent damage, injury, or loss to the following:

1. Employees involved in the Construction Work and other persons who may be affected thereby.

2. The Construction Work in place and materials and equipment to be incorporated therein, whether in storage on or off the Project site, under care, custody, or control of the Design-Build Entity or Subcontractors.

3. Other property at the Project site and adjoining property.

B. The Design-Build Entity shall erect and maintain, as required by existing conditions and performance of the work on the Project, adequate safeguards for safety and protection, including providing adequate lighting and ventilation, posting danger signs and other warnings against hazards, promulgating safety regulations, and notifying City and users of adjacent sites and utilities.

C. When use or storage of explosives, other hazardous materials, equipment, or unusual methods are necessary for execution of the Construction Work, the Design-Build Entity shall exercise the utmost care and carry on such activities only under the supervision of properly qualified personnel.

D. The Design-Build Entity shall designate a responsible member of the Design-Build Entity’s organization at the Project site whose duty shall be the prevention of accidents. That person shall be the Superintendent, unless otherwise designated by the Design-Build Entity in writing to City and City’s Representative.

E. The Design-Build Entity shall not load or permit any part of the Construction Work or the Project site to be loaded so as to endanger the safety of persons or property.

10.3 EMERGENCIES

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A. In an emergency affecting the safety of persons or property, the Design-Build Entity shall act to prevent or minimize damage, injury, or loss. The Design-Build Entity shall promptly notify City’s Representative, which notice may be oral followed by written confirmation, of the occurrence of such an emergency and the Design-Build Entity’s action.

ARTICLE 11 - Insurance and Bonds
Within fifteen (15) days after receipt of the Notice of Award and before City will execute the Contract, the Design-Build Entity shall furnish and file with City a signed Contract in duplicate and the necessary Performance Bond, Payment Bond, Certificates of Insurance and Endorsements, Escrow Agreement (if used) and Tax Identification Number, as well as any other documents specified in the Contract Documents.

11.1 INSURANCE
A. Insurance requirements are as follows:

1. Time for Compliance. the Design-Build Entity shall not commence work on the Project until it has provided evidence to City that it has secured all insurance required under this Article. The Design-Build Entity shall require and verify that all Subcontractors maintain insurance meeting all the requirements stated herein. The Design-Build Entity shall not allow any Subcontractor to commence work on any subcontract until it has provided evidence to City that the Subcontractor has secured all insurance required under this Article.

2. Minimum Requirements. The Design-Build Entity shall, at its expense, procure and maintain for the duration of the Contract, insurance against claims for injuries to persons or damages to property which may arise out of or result from the performance of the Project and the DesignBuild Entity’s other obligations under the Contract Documents whether by the Design-Build Entity, its agents, representatives, employees or Subcontractors. The Design-Build Entity shall also require all of its Subcontractors to procure and maintain the same insurance for the duration of the Agreement and verify the Subcontractors’ compliance. The Design-Build Entity’s and Subcontractors’ insurance shall meet at least the following minimum levels of coverage:

B. Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto) or if the Design-Build Entity has no owned autos, non-owned, leased or hired autos Code 8 (hired) and Code 9 (non-owned); (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance; (4) Installation Floater/Builder’s Risk: “All Risk All Perils” form; and (5) Professional Liability/Errors and Omissions. The policies shall not contain any exclusion contrary to the Agreement, including but not limited to endorsements or provisions limiting coverage for (1) contractual liability or (2) cross liability for claims or suits by one insured against another.

C. Minimum Limits of Insurance. the Design-Build Entity shall maintain limits no less than:

1. Commercial General Liability: The Design-Build Entity shall have limits of at least the amount that corresponds to the Contract Price in the following table:

Contract Price Amount of Liability
Insurance
(per occurrence)
$ 0 - $ 2 million $ 2 million

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$ 2 million - $ 5 million $ 3 million
$ 5 million - $ 10 million $ 5 million
$ 10 million - $ 20 million $10 million
If Commercial General Liability Insurance or other form with general aggregate limit is used including, but not limited to, form CG 25 03, either the general aggregate limit shall apply separately to the Project or the general aggregate limit shall be twice the required occurrence limit. Should any of the Project involve aircraft (fixed wing or helicopter) owned or operated by the Design-Build Entity, liability insurance with limits of not less than $5,000,000 per occurrence for bodily injury and property damage is required.

Should any of the Project involve watercraft owned or operated by the Design-Build Entity, liability insurance with limits of not less than $5,000,000 per occurrence for bodily injury and property damage is required.

2. Automobile Liability: $1 million per accident for bodily injury and property damage.

3. Workers’ Compensation and Employer’s Liability: Workers’ Compensation with statutory limits.

Employer’s Liability limits of $1 million per accident for bodily injury or disease. Should any of the Project be upon or contiguous to navigable bodies of water, the Design-Build Entity shall carry insurance covering its employees for benefits available under the Federal Longshoremen's and Harbor Worker's Act to the extent required by law.

4. Excess/Umbrella Liability Policy: Sufficient to insure the total limits required for Commercial General Liability and Automobile Liability and must apply to all primary coverage afforded, including but not limited to general liability, owned and non-owned automobiles, leased and hired cars.

5. Professional Liability/Errors and Omissions: $2,000,000 per claim.

D. Notices; Cancellation or Reduction of Coverage. At least fifteen (15) days prior to the expiration of any such policy, evidence showing that such insurance coverage has been renewed or extended shall be filed with City. If such coverage is cancelled or materially reduced, the Design-Build Entity shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. In the event any policy of insurance required under this Article does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by the Design-Build Entity or City may withhold amounts sufficient to pay premium from the Design-Build Entity payments. In the alternative, City may suspend or terminate this Contract.

1. Insurance Endorsements. The insurance policies shall contain the following provisions, or the Design-Build Entity shall provide endorsements on forms approved by City to add the following provisions to the insurance policies:

E. General Liability. The general liability policy shall include or be endorsed (amended) to state that:
(1) using ISO CG forms 20 10 and 20 37 (including completed operations), or endorsements providing the exact same coverage, City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions shall be covered as additional insureds with respect to the Project or ongoing and completed operations performed by or on behalf of the Design-Build Entity, including materials, parts or equipment furnished in connection with such work; and (2) using ISO form 20 01, or endorsements providing the exact same coverage, the

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insurance coverage shall be primary insurance as respects City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions, or if excess, shall stand in an unbroken chain of coverage excess of the Design-Build Entity’s scheduled underlying coverage. Any excess insurance shall contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of City, before City’s own primary insurance or self-insurance shall be called upon to protect it as a named insured. Any insurance or self-insurance maintained by City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions shall be excess of the Design-Build Entity’s insurance and shall not be called upon to contribute with it in any way.

F. Automobile Liability. The automobile liability policy shall include or be endorsed (amended) to state that: (1) City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Design-Build Entity or for which the Design-Build Entity is responsible; and (2) the insurance coverage shall be primary insurance as respects City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions, or if excess, shall stand in an unbroken chain of coverage excess of the Design-Build Entity’s scheduled underlying coverage. Any insurance or self-insurance maintained by City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions shall be excess of the Design-Build Entity’s insurance and shall not be called upon to contribute with it in any way.

G. Workers’ Compensation and Employer’s Liability Coverage. The insurer shall agree, using WC 00 03 13 or the exact equivalent, to waive all rights of subrogation against City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions for losses paid under the terms of the insurance policy.

H. Professional Liability/Errors and Omissions. Professional Liability Insurance insuring the Architect of Record, its officers, directors, stockholders, employees, agents, or partner, and all other persons for whose acts the Architect of Record may be liable, against any and all liabilities arising out of or in connection with the negligent acts, errors or omissions of any of the foregoing in connection with the carrying out of their professional responsibilities described in this Contract. Professional Liability Insurance shall remain in full force and effect and shall be so certified to City by the insurer, for a period of five (5) years after the completion of all of the Design-Build Entity’s services hereunder and City’s acceptance of the Project.

I. All Coverages. Each insurance policy required by this Agreement shall be endorsed to include the following provisions:

1. Coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days (10 days for nonpayment of premium) prior written notice by mail has been given to City and all additional insureds.

2. Any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to City and any other additional insureds.

3. Standard separation of insureds provisions.

4. No special limitations on the scope of protection afforded to City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions.

5. Waiver of any right of subrogation of the insurer against City, its officials, officers, employees, agents, and volunteers, or any other additional insureds, or shall specifically allow the DesignPage 170 of 284 ATTACHMENT 5
Build Entity or others providing insurance in compliance with these specifications to waive their right of recovery prior to a loss. By signing this agreement, the Design-Build Entity hereby waives its own right of recovery against City or any other additional insureds and shall require similar written express waivers and insurance clauses from each of its Subcontractors.

6. Installation Floater Insurance shall be for the total value of project. The policy shall be written on an “All Risk, All Perils” form, to include coverage for earthquake, flood, and Acts of God (as defined in public Contract Code Section 7105), insuring for physical loss or damage to the Project, false work, completed work, work in progress, material, supplies, and equipment of the Project site, but also to property at off-site storage locations and in transit, without regard to the location of the covered property. The policy shall be issued on a replacement cost basis, and shall insure against at least the following perils or causes of loss: fire, lightning, weather damage, explosion, extended replacement cost coverage, theft, vandalism, malicious mischief, collapse, debris removal, aircraft, demolition occasioned by enforcement of Applicable Laws, water damage from any source), snow, sleet, hail, wind, acts of terrorism, and such other perils not specifically listed. The policy shall include expenses incurred in the repair or replacement of any insured property (including but not limited to fees and charges of engineers and architects), allow for Beneficial Occupancy of the Project by City, and include testing and startup.

If the replacement cost increases during the course of construction, additional insurance limits must be purchased by the Design-Build Entity.

Should any of the Project involve construction or remodeling of, or addition to, a building or buildings, then Builder’s Risk/Course of Construction Coverage shall be added to the Installation Floater Insurance. The Builder’s Risk/Course of Construction coverage shall also include the perils of flood and earthquake.

Installation Floater Insurance deductible amounts may be selected by the Design-Build Entity but shall not exceed the maximum allowable deductible for the Contract Price of the Project in the table set forth below. The maximum allowable deductibles for the perils of earthquake and flood shall not be greater than five percent of the value at risk at the time of loss.

Contract Price
All Risk Perils
Maximum Deductible
$ 0 -
-
$ 2,000,000 $ 10,000
$ 2,000,001 -
-
$ 5,000,000 $ 20,000
$ 5,000,001 -
-
$ 10,000,000 $ 50,000
$ 10,000,001 -
-
$ 50,000,000 $ 100,000
Installation Floater Insurance policy shall name City, the Design-Build Entity and Subcontractors as insureds, with deductible amounts, if any, for the sole account of and payable by the DesignBuild Entity. Loss under Installation Floater Insurance shall be adjusted with and payable to City for the interest of all parties.

The amount of Installation Floater Insurance shall be sufficient to protect against such loss or damage in full until all Work is accepted by City. The premium for Installation Floater Insurance will be paid by Design-Build Entity.

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7. Pollution Liability insurance is required should any of the Project involve pollutants. Liability coverage shall include coverage for the environmental risk associated with the project and expenses related to such, including bodily injury, property damage, on and off site clean-up, transporting, carrying, or storing pollutants, coverage for non-owned disposal site in an amount not less than that set forth in the Special Conditions.

Pollutants include, but are not limited to, asbestos, mold, microbial matter, solid, liquid, gaseous or thermal irritants or contaminants, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste. Waste includes materials to be recycled, reconditioned, or reclaimed.

8. Receipt and Application of Insurance Proceeds. Any insured loss under the policies of insurance required herein will be adjusted with City and made payable to City as fiduciary for the loss payees, as their interests may appear, subject to the requirements of any applicable mortgage clause and of the provisions herein. City shall deposit in a separate account any money so received and shall distribute it in accordance with such agreement as the parties in interest may reach. If no other special agreement is reached, the damaged work shall be repaired or replaced, the moneys so received applied on account thereof, and the Project and the cost thereof covered by an appropriate Change Order.

City as fiduciary shall have power to adjust and settle any loss with the insurers unless one of the parties in interest shall object in writing to City’s exercise of this power within fifteen (15) days after the occurrence of loss. If such objection be made, City as fiduciary shall make settlement with the insurers in accordance with such agreement as the parties in interest may reach. If no such agreement among the parties in interest is reached, City as fiduciary shall adjust and settle the loss with the insurers and, if required in writing by any party in interest, City as fiduciary shall give bond for the proper performance of such duties.

9. Beneficial Occupancy, Acknowledgement of Property Insurer. If City finds it necessary to occupy or use a portion or portions of the Project prior to Substantial Completion of all the Project, no such use or occupancy shall commence before the insurers providing the property insurance have acknowledged notice thereof and in writing effected any changes in coverage necessitated thereby. The insurers providing the property insurance shall consent by endorsement on the policy or policies, but the property insurance shall not be canceled or permitted to lapse on account of any such partial use or occupancy.

10. Deductibles and Self-Insurance Retentions. Any deductibles or self-insured retentions must be declared to and approved by City. the Design-Build Entity shall guarantee that, at the option of City, either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City, its officials, officers, employees, agents, and volunteers and any other additional insureds named in the Special Conditions; or (2) the Design-Build Entity shall procure a bond guaranteeing payment of losses and related investigation costs, claims, and administrative and defense expenses.

11. Claims Made Policies. Claims made policies are not acceptable other than for Professional Liability. In addition to the requirements above, for any claims made policy:

J. The retroactive date must be shown and must be before the date of the Contract or the beginning of Contract work.

K. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after City’s acceptance of the Project.

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L. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the contract effective date, the Design-Build Entity must purchase “extended reporting” coverage for a minimum of five (5) years after City’s acceptance of the Project.

1. Subcontractor Insurance Requirements. The Design-Build Entity shall not allow any Subcontractors to commence work on any subcontract relating to the Project until the DesignBuild Entity has verified that all Subcontractors maintain insurance meeting all requirements under this Article and provided evidence to City of such insurance. For Commercial General Liability coverage, Subcontractors shall provide coverage naming City, its officials, officers, employees, agents, and volunteers using CG 20 38 04 13. If requested by the Design-Build Entity, City may approve different scopes or minimum limits of insurance for particular Subcontractors. The Design-Build Entity shall confirm that City and entities identified in the Special Conditions shall be named as additional insureds on all Subcontractors’ policies of Commercial General Liability Insurance and Commercial Automobile Insurance.

2. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to City.

3. Verification of Coverage. The Design-Build Entity shall furnish City with original certificates of insurance and endorsements effecting coverage required by the Contract Documents on forms satisfactory to City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by City before work commences. City reserves the right to require complete, certified copies of all required insurance policies, at any time.

4. Reservation of Rights. City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.

11.2 PERFORMANCE BOND AND PAYMENT BOND
A. The Design-Build Entity shall submit the bonds on the forms provided with the Contract Documents, duly executed by a responsible corporate surety admitted to transact surety business in the State of California, as defined in Code of Civil Procedure Section 995.120, and listed in the United States Department of the Treasury circular entitled "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies," authorized to do business in the State of California and acceptable to City conditioned upon the faithful performance by the Design-Build Entity of all requirements of the Contract Documents. Each of the bonds shall be in a sum no less than one hundred percent (100%) of the Guaranteed Maximum Price. The Design-Build Entity shall furnish bonds covering the faithful performance of the Contract (Performance Bond) and payment of obligations arising thereunder (Payment Bond) on the forms contained in the Contract.

B. The Payment Bond and Performance Bond shall be in effect on the date the Contract is signed by City.

C. The Design-Build Entity shall promptly furnish such additional security as may be required by City to protect its interests and those interests of persons or firms supplying labor or materials to the Project.

D. The premiums for the Payment Bond and Performance Bond shall be paid by the Design-Build Entity.

E. The Design-Build Entity maintains and agrees that it has executed Payment and Performance Bonds in the amounts and manner required by the Contract Documents.

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F. No payment will be made to the Design-Build Entity until the Design-Build Entity’s Payment Bond and Performance Bond have been approved by City.

G. Should, in City’s sole opinion, any bond become insufficient or surety found to be unsatisfactory, the Design-Build Entity shall renew or replace the effected bond within 10 days of receiving notice from City.

H. In the event the surety or the Design-Build Entity intends to reduce or cancel any required bonds, at least thirty (30) days prior written notice shall be given to City, and the Design-Build Entity shall post acceptable replacement bonds at least ten (10) days prior to expiration of the original bonds. No further payments shall be deemed due or will be made under this Contract until any replacement bonds required by this Article are accepted by City.

I. I. To the extent, if any, that the Guaranteed Maximum Price is increased in accordance with the Contract, the Design-Build Entity shall, upon request of City, cause the amount of the bonds to be increased accordingly and shall promptly deliver satisfactory evidence of such increase to City.

J. To the extent available, the bonds shall further provide that no change or alteration of the Contract (including, without limitation, an increase in the Guaranteed Maximum Price, as referred to above), extensions of time, or modifications of the time, terms, or conditions of payment to the Design-Build Entity will release the surety. If the Design-Build Entity fails to furnish any required bond, City may terminate the Contract for cause.

ARTICLE 12 - Uncovering and correction of construction Work

12.1 UNCOVERING OF WORK ON THE PROJECT
A. If a portion of the Construction Work is covered contrary to City’s Representative’s request or direction, or contrary to the requirements of the Contract Documents, it must, if required in writing by City’s Representative, be uncovered for City’s Representative’s observation and be replaced at the Design-Build Entity’s expense without adjustment of the Guaranteed Completion Date or the Guaranteed Maximum Price.

B. If a portion of the Construction Work has been covered, which is not required by the Contract Documents to be observed or inspected prior to its being covered and which City’s Representative has not specifically requested to observe prior to its being covered, City’s Representative may request to see such Construction Work and it shall be uncovered and replaced by the Design-Build Entity. If such Construction Work is in accordance with the Contract Documents, the costs of uncovering and replacing the Construction Work shall be added to the Guaranteed Maximum Price by Change Order; and if the uncovering and replacing of the Construction Work extends the Guaranteed Completion Date, an appropriate adjustment of the Guaranteed Completion Date shall be made by Change Order. If such Construction Work is not in accordance with the Contract Documents, the Design-Build Entity shall pay such costs and shall not be entitled to an adjustment of the Guaranteed Completion Date or the Guaranteed Maximum Price.

12.2 CORRECTION OF DEFECTIVE WORK AND GUARANTEE TO REPAIR PERIOD A. The term “Guarantee To Repair Period” means a period of two (2) years, unless a longer period of time is specified, commencing as follows:

1. For any Construction Work not described as incomplete in the Certificate of Substantial Completion, on the date of Substantial Completion.

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2. For space beneficially occupied or for separate systems fully utilized prior to Substantial Completion pursuant to Article 9.6, from the first date of such Beneficial Occupancy or actual use, as established in a Certificate of Beneficial Occupancy.

3. For all Construction Work other than 1. or 2. above, from the date of Final Completion.

B. The Design-Build Entity shall (1) correct Defective Work that becomes apparent during the progress of the work on the Project or during the Guarantee To Repair Period and (2) replace, repair, or restore to City’s satisfaction any other parts of the work on the Project and any other real or personal property which is damaged or destroyed as a result of Defective Work or the correction of Defective Work.

The Design-Build Entity shall promptly commence such correction, replacement, repair, or restoration upon notice from City’s Representative or City, but in no case later than fourteen (14) days after receipt of such notice; and the Design-Build Entity shall diligently and continuously prosecute such correction to completion. The Design-Build Entity shall bear all costs of such correction, replacement, repair, or restoration, and all Losses resulting from such Defective Work, including additional testing, inspection, and compensation for City’s Representative’s services and expenses. The Design-Build Entity shall perform corrective work on the Project at such times that are acceptable to City and in such a manner as to avoid, to the extent practicable, disruption to City’s activities.

C. If immediate correction of Defective Work is required for life safety or the protection of property and is performed by City or Separate Contractors, the Design-Build Entity shall pay to City all reasonable costs of correcting such Defective Work. The Design-Build Entity shall replace, repair, or restore to City’s satisfaction any other parts of the Construction Work and any other real or personal property which is damaged or destroyed as a result of such Defective Work or the correction of such Defective Work.

D. The Design-Build Entity shall remove from the Project site portions of the Construction Work and materials which are not in accordance with the Contract Documents and which are neither corrected by the Design-Build Entity nor accepted by City.

E. If the Design-Build Entity fails to commence correction of Defective Work within thirty (30) days after notice from City or City’s Representative or fails to diligently prosecute such correction to completion, City may correct the Defective Work in accordance with Article 2.4; and, in addition, City may remove the Defective Work and store salvageable materials and equipment at the Design-Build Entity’s expense.

F. If The Design-Build Entity fails to pay the costs of such removal and storage as required by Article

12.2 within thirty (30) days after written demand, City may, without prejudice to other remedies, sell such materials at auction or at private sale, or otherwise dispose of such material. The Design-Build Entity shall be entitled to the proceeds of such sale, if any, in excess of the costs and damages for which the Design-Build Entity is liable to City, including compensation for City’s Representative’s services and expenses. If such proceeds of sale do not cover costs and damages for which the Design-Build Entity is liable to City, the Guaranteed Maximum Price shall be reduced by such deficiency. If there are no remaining payments due the Design-Build Entity or the remaining payments are insufficient to cover such deficiency, the Design-Build Entity shall promptly pay the difference to City.

G. The Design-Build Entity’s obligations under this Article 12 are in addition to and not in limitation of its standard of cared owed on the Project to City under Article 3.5 or any other obligation of the DesignBuild Entity under the Contract Documents. Enforcement of the Design-Build Entity’s express warranties and guarantees to repair contained in the Contract Documents shall be in addition to and not in limitation of any other rights or remedies City may have under the Contract Documents or at law or in equity for Defective Work. Nothing contained in this Article 12 shall be construed to establish

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a period of limitation with respect to other obligations of the Design-Build Entity under the Contract Documents. Establishment of the Guarantee To Repair Period relates only to the specific obligation of the Design-Build Entity to correct the work on the Project and in no way limits either the DesignBuild Entity’s liability for Defective Work or the time within which proceedings may be commenced to enforce the Design-Build Entity’s obligations under the Contract Documents.

ARTICLE 13 - Termination or suspension fo the contract

13.1 TERMINATION BY THE DESIGN-BUILD ENTITY
A. Subject to Article 13.1B, the Design-Build Entity shall have the right to terminate the Contract only upon the occurrence of one of the following:

1. The work on the Project is stopped for ninety (90) consecutive days, through no act or fault of the Design-Build Entity, any Subcontractor, or any employee or agent of the Design-Build Entity or any Subcontractor, due to an issuance of an order of a court or other public authority having jurisdiction or due to an act of government, such as a declaration of a national emergency making material unavailable.

2. City fails to perform any material obligation under the Contract Documents and fails to cure such material default within thirty (30) days after receipt of notice from the Design-Build Entity stating the nature of such default.

3. Repeated suspensions by City, other than such suspensions as are agreed to by the DesignBuild Entity under Article 13.3, which constitute in the aggregate more than 20% of the Guaranteed Completion Date or ninety (90) days, whichever is larger.

B. Upon the occurrence of one of the events listed in Article 13.1A, the Design-Build Entity may, upon ten (10) days additional notice to City and City’s Representative, and provided that the condition giving rise to the Design-Build Entity’s right to terminate is continuing, terminate the Contract.

C. Upon termination by the Design-Build Entity, City will pay to the Design-Build Entity the sum determined by Article 13.4D. Such payment will be the sole and exclusive remedy to which the Design-Build Entity is entitled in the event of termination of the Contract by the Design-Build Entity pursuant to Article 13.1; and the Design-Build Entity will be entitled to no other compensation or damages and expressly waives the same.

13.2 TERMINATION BY City FOR CAUSE
A. City will have the right to terminate the Contract for cause at any time after the occurrence of any of the following events:

1. The Design-Build Entity becomes insolvent or files for relief under the bankruptcy laws of the United States.

2. The Design-Build Entity makes a general assignment for the benefit of its creditors or fails to pay its debts as the same become due.
3, A receiver is appointed to take charge of the Design-Build Entity’s property.

3. The commencement or completion of any work activity is 30 days or more behind the date set forth in the Contract Schedule for such work activity, and which results in an Unexcusable Delay, provided City shall give Design-Build Entity thirty (30) days’ written notice to cure.

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4. The Design-Build Entity abandons work on the Project.

B. Upon the occurrence of any of the following events, City will have the right to terminate the Contract for cause if the Design-Build Entity fails to promptly commence to cure such default and diligently prosecute such cure within fourteen (14) days after notice from City, or within such longer period of time as is reasonably necessary to complete such cure:

1. The Design-Build Entity persistently or repeatedly refuses or fails to supply skilled supervisory personnel, an adequate number of properly skilled workers, proper materials, or necessary equipment to prosecute the work on the Project in accordance with the Contract Documents.

2. The Design-Build Entity fails to make payment of undisputed amounts due Subcontractors after receiving payment from City.

3. The Design-Build Entity disregards Applicable Law.

4. The Design-Build Entity persistently or materially fails to execute the work on the Project in accordance with the Contract Documents.

5. The Design-Build Entity is in default of any other material obligation under the Contract Documents.

6. The Design-Build Entity persistently or materially fails to comply with applicable safety requirements.

C. Upon any of the occurrences referred to in Articles 13.2A and 13.2B, City may, at its election and by notice to the Design-Build Entity, terminate the Contract and take possession of the Project site and all materials, supplies, equipment, tools, and construction equipment and machinery thereon owned by the Design-Build Entity; accept the assignment of any or all of the subcontracts; and then complete the Project by any method City may deem expedient. If requested by City, the Design-Build Entity shall remove any part or all of the Design-Build Entity’s materials, supplies, equipment, tools, and construction equipment and machinery from the Project site within thirty (30) days of such request; and if the Design-Build Entity fails to do so, City may remove or store, and after ninety (90) days sell, any of the same at the Design-Build Entity’s expense.

D. If the Contract is terminated by City as provided in this Article 13.2, the Design-Build Entity shall not be entitled to receive any further payment until the expiration of thirty-five (35) days after Final Completion and acceptance of all work on the Project by City.

E. If the unpaid balance of the Guaranteed Maximum Price exceeds the cost of completing the Project, including all additional costs and expenses made necessary thereby, including costs for City staff time, plus all Losses sustained, including any liquidated damages provided under the Contract Documents, such excess shall be paid to the Design-Build Entity. If such costs, expenses, Losses, and liquidated damages exceed the unpaid balance of the Guaranteed Maximum Price, the DesignBuild Entity shall pay such excess to City.

F. No termination or action taken by City after termination shall prejudice any other rights or remedies of City provided by law or by the Contract Documents upon such termination; and City may proceed against the Design-Build Entity to recover all Losses suffered by City.

13.3 SUSPENSION BY City FOR CONVENIENCE
A. City may, at any time and from time to time, without cause, order the Design-Build Entity, in writing, to suspend, delay, or interrupt the work on the Project in whole or in part for such period of time, up

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to ninety (90) days, as City may determine, with such period of suspension to be computed from the date of delivery of the written order. Such order shall be specifically identified as a “Suspension Order” under this Article. The work on the Project may be stopped for such further period as the parties may agree. Upon receipt of a Suspension Order, the Design-Build Entity shall, at City’s expense, comply with its terms and take all reasonable steps to minimize costs allocable to the work covered by the Suspension Order during the period of work stoppage. Within ninety (90) days after the issuance of the Suspension Order, or such extension to that period as is agreed upon by the Design-Build Entity and City, City shall either cancel the Suspension Order or delete the work covered by such Suspension Order by issuing a Change Order.

B. If a Suspension Order is canceled or expires, the Design-Build Entity shall continue with the work on the Project. A Change Order will be issued to cover any adjustments of the Guaranteed Maximum Price or the Guaranteed Completion Date necessarily caused by such suspension. Any Claim by the Design-Build Entity for an adjustment of the Guaranteed Maximum Price or the Guaranteed Completion Date shall be made within thirty (30) days after the end of the work suspension. The Design-Build Entity agrees that submission of its claim within said thirty (30) days is an express condition precedent to its right to arbitrate or litigate such a Claim.

C. The provisions of this Article shall not apply if a Suspension Order is not issued by City. A Suspension Order shall not be required to stop the work on the Project as permitted or required under any other provision of the Contract Documents.

13.4 TERMINATION BY City FOR CONVENIENCE
A. City may, at its option, terminate this Contract, in whole or from time to time in part, at any time by giving notice to the Design-Build Entity. Upon such termination, the Design-Build Entity agrees to waive any claims for damages, including loss of anticipated profits, on account thereof; and, as the sole right and remedy of the Design-Build Entity, City shall pay the Design-Build Entity in accordance with Article 13.4D.

B. Upon receipt of notice of termination under this Article 13.4, the Design-Build Entity shall, unless the notice directs otherwise, do the following:

1. Immediately discontinue the work on the Project to the extent specified in the notice.

2. Place no further orders or subcontracts for materials, equipment, services, or facilities, except as may be necessary for completion of such portion of the work on the Project as is not discontinued.

3. Promptly cancel, on the most favorable terms reasonably possible, all subcontracts to the extent they relate to the performance of the discontinued portion of the work on the Project.

4. Thereafter do only such work as may be necessary to preserve and protect work on the Project already in progress and to protect materials, plants, and equipment on the Project site or in transit thereto.

C. Upon such termination, the obligations of the Contract shall continue as to portions of the work on the Project already performed and, subject to the Design-Build Entity’s obligations under Article13.4B, as to bona fide obligations assumed by the Design-Build Entity prior to the date of termination.

D. Upon such termination, City shall pay to the Design-Build Entity the sum of the following:

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1. The amount of the Guaranteed Maximum Price allocable to the portion of the work on the Project properly performed by the Design-Build Entity as of the date of termination, less sums previously paid to the Design-Build Entity.

2. Plus previously unpaid costs of any items delivered to the Project site which were fabricated for subsequent incorporation in the work on the Project.

3. Plus any proven Losses with respect to materials and equipment directly resulting from such termination.

4. Plus reasonable demobilization costs.

5. Plus reasonable costs of preparing a statement of the aforesaid costs, expenses, and Losses in connection with such termination.

The above payment shall be the sole and exclusive remedy to which the Design-Build Entity is entitled in the event of termination of the Contract by City pursuant to Article 13.4; and the DesignBuild Entity will be entitled to no other compensation or damages and expressly waives the same.

ARTICLE 14 - Statutory Requirements

14.1 NONDISCRIMINATION
Pursuant to Labor Code Section 1735 and other applicable provisions of law, the Design-Build Entity and its Subcontractors shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age, political affiliation, marital status, or handicap on this Work. The Design-Build Entity will take affirmative action to ensure that employees are treated during employment or training without regard to their race, color, religion, sex, national origin, age, political affiliation, marital status, or handicap.

14.2 PROHIBITION ON HARASSMENT
City is committed to providing a workplace free of sexual harassment and harassment based on factors such as race, color, religion, national origin, ancestry, age, medical condition, marital status, disability or veteran status. Harassment includes without limitation, verbal, physical or visual conduct which creates an intimidating, offensive or hostile environment such as racial slurs, ethnic jokes, posting of offensive statements, posters or cartoons or similar conduct. The Design-Build Entity shall not permit any person, whether employed by the Design-Build Entity, a subconsultant, a Subcontractor, Sub-Subcontractor, or any other person or entity, performing any work on the Project at or about the Project site to engage in any form of harassment.

14.3 [INTENTIONALLY OMITTED]

14.4 HOURS OF WORK
A. The Design-Build Entity and Subcontractors shall furnish sufficient forces to ensure the prosecution of the work on the Project in accordance with the Construction Schedule and in such a manner to allow for the full and adequate completion of the Project within the Guaranteed Completion Date.

B. Work on the Project shall be performed during regular working hours, except that in the event of an emergency or when required to complete the work on the Project in accordance with job progress, work may be performed outside of regular working hours with advance written notice to City.

Permissible working hours shall be between 7:00 a.m. to 6:00 p.m. and shall not be changed except with consent of City.

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C. Eight (8) hours of work shall constitute a legal day’s work. The Design-Build Entity and each Subcontractor shall forfeit, as penalty to City, twenty-five dollars ($25) for each worker employed in the execution of work on the Project by the Design-Build Entity or any Subcontractor for each day during which such worker is required or permitted to work more than eight (8) hours in any one day and forty (40) hours in any week in violation of the provisions of the Labor Code, and in particular, Section 1810 to Section 1815, except as provided in Labor Code Section 1815.

D. If the work done after hours is required by the Contract to be done outside the Design-Build Entity’s regular working hours, the costs of any inspections, if required to be done outside normal working hours, shall be borne by City.

If City allows the Design-Build Entity to do work outside regular working hours for the Design-Build Entity’s own convenience, the costs of any inspections required outside regular working hours shall be invoiced to the Design-Build Entity by City and deducted from the next progress payment.

If the Design-Build Entity elects to perform work outside the Inspector’s regular working hours, costs of any inspections required outside regular working hours shall be invoiced to the Design-Build Entity by City and deducted from the next progress payment.

E. No work on the Project or other activities by or on behalf of the Design-Build Entity which presents a hazard or unreasonable disruption to City staff shall be allowed during normal working hours. The determination as to whether work on the Project or some other activity presents a hazard or constitutes an unreasonable disruption to City staff shall be made by and pursuant to the sole discretion of a representative of City. All work on the Project or other activities which could present a hazard or unreasonable disruption to City staff shall be performed before or after normal working hours, on weekends, or on a City recognized holiday. Neither the Design-Build Entity nor its Subcontractors or anyone working on behalf of the Design-Build Entity or Subcontractors shall be entitled to additional compensation or an extension of the Guaranteed Completion Date for having to arrange their work schedule so as not to violate the provisions of this Article 14.4. The DesignBuild Entity, Subcontractors and persons working on behalf of the Design-Build Entity shall be expected to arrange such work and other activities in advance so as to avoid creating monetary or time impacts.

14.5 WAGE RATES, TRAVEL, AND SUBSISTENCE
A. The Design-Build Entity is aware of the requirements of Labor Code Sections 1720 et seq. and 1770 et seq., as well as California Code of Regulations, Title 8, Section 16000 et seq. (“Prevailing Wage Laws”), which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects. Since the work on the Project involves an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, the Design-Build Entity agrees to fully comply with such Prevailing Wage Laws. City has obtained the prevailing wage rates from the Director of the Department of Industrial Relations, State of California. Copies of the prevailing wage rates are on file at City’s office in Coachella and shall be made available to any interested party on request. the Design-Build Entity shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to perform the Project available to interested parties upon request and shall post copies at the Design-Build Entity’s principal place of business and at the Project site. The Design-Build Entity shall defend, indemnify and hold City, its elected officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or allege failure to comply with the Prevailing Wage Laws.

B. Pursuant to Labor Code Section 1775, the Design-Build Entity is hereby advised that in the event that the Design-Build Entity fails to pay prevailing wages, the Design-Build Entity will be held liable for penalties and for shortfalls in wages and such amounts may be withheld from progress payments.

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the Design-Build Entity and each Subcontractor shall forfeit as a penalty to City not more than two hundred dollars ($200) for each Day, or portion thereof, for each worker paid less than the stipulated prevailing wage rate for any work done by him, or by any subcontract under him, in violation of the provisions of the Labor Code. The difference between such stipulated prevailing wage rate and the amount paid to each worker for each Day or portion thereof for which each worker was paid less than the stipulated prevailing wage rate shall be paid to each worker by the Design-Build Entity.

C. The Design-Build Entity shall post, at appropriate conspicuous points on the Project site, a schedule showing all determined general prevailing wage rates and all authorized deductions, if any, from unpaid wages actually earned.

14.6 LABOR COMPLIANCE/PAYROLL RECORDS
A. Pursuant to Labor Code Section 1776, the Design-Build Entity and each Subcontractor shall maintain weekly certified payroll records showing the name, address, social security number, work classification, straight time and overtime hours paid each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker or other employee employed in connection with the Project. the Design-Build Entity shall certify under penalty of perjury that records maintained and submitted by the Design-Build Entity are true and accurate. the Design-Build Entity shall also require Subcontractor(s) to certify weekly payroll records under penalty of perjury. In the event of noncompliance with the requirements of this Article 14.6, the Design-Build Entity shall have ten (10) days in which to comply subsequent to receipt of written notice specifying any item or actions necessary to ensure compliance with this Article 14.6. Should noncompliance still be evident after such ten (10) day period, the Design-Build Entity shall, as a penalty to the City, forfeit One Hundred Dollars ($100.00) for each day, or portion thereof, for each worker until strict compliance is effectuated. Upon the request of DIR, such penalties shall be withheld from contract payments.

B. The certified payroll records shall be on forms provided by the Division of Labor Standards Enforcement (“DLSE”) of the Department of Industrial Relations (“DIR”). The Design-Build Entity and Subcontractors shall also submit electronic certified payroll reports to the Labor Commissioner in accordance with regulations adopted by DIR under the California Code of Regulations. The Design-Build Entity is responsible for ensuring that it and its Subcontractors are in full compliance with all DIR requirements and all other labor compliance requirements under this contract and applicable labor law.

C. In submitting the Proposal on this Project, it shall be the Design-Build Entity’s sole responsibility to evaluate and include the cost of complying with all labor compliance requirements under this Contract and Applicable Law in its Proposal.

D. The Design-Build Entity shall include provisions in this Article in all Subcontracts and require Subcontractors to comply with these provisions at no additional cost to City.

14.7 PUBLIC WORKS CONTRACTOR REGISTRATION
Pursuant to Labor Code sections 1725.5 and 1771.1, the Design-Build Entity and its subcontractors must be registered with the Department of Industrial Relations prior to the execution of a contract to perform public works. By entering into this Contract, Design-Build Entity represents that it is aware of the registration requirement and is currently registered with the DIR. Design-Build Entity shall maintain a current registration for the duration of the Project. Design-Build Entity shall further include the requirements of Labor Code sections 1725.5 and 1771.1 in any subcontract and ensure that all subcontractors are registered at the time this Contract is entered into and maintain registration for the duration of the Project. Notwithstanding the foregoing, the contractor registration requirements mandated by Labor Code Sections 1725.5 and 1771.1 shall not apply to work performed on a public

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works project that is exempt pursuant to the small project exemption specified in Labor Code Sections 1725.5 and 1771.1.

14.8 STOP ORDERS
Any stop orders issued by the Department of Industrial Relations against Design-Build Entity or any subcontractor that affect Design-Build Entity’s performance of Work, including any delay, shall be Design-Build Entity’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Design-Build Entity caused delay subject to any applicable liquidated damages and shall not be compensable by the City. Design-Build Entity shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Design-Build Entity or any subcontractor.

14.9 APPRENTICES
The Design-Build Entity’s attention is directed to the provisions of Sections 1777.5, 1777.6, and 1777.7 of the Labor Code concerning employment of apprentices by the Design-Build Entity or any Subcontractor. The Design-Build Entity shall obtain a certificate of apprenticeship before employing any apprentice pursuant to Sections 1777.5, 1777.6, and 1777.7 of the Labor Code. Information relative to apprenticeship standards, wage schedules, and other requirements may be obtained from DIR, the Administrator of Apprenticeships, San Francisco, California, or from the Division of Apprenticeship Standards and its branch offices.

14.10 THIRD-PARTY CLAIMS (Pub. Contract Code § 9201.)
Pursuant to Public Contract Code Section 9201, City shall provide the Design-Build Entity with timely notification of the receipt of any third-party claim relating to the Contract.

14.11 ANTI-TRUST CLAIM ASSIGNMENT (Pub. Contract Code §7103.5).) City must provide the Design-Build Entity with timely notification of the receipt of any third-party claim, relating to the Contract and City is entitled to recover its reasonable costs incurred in providing such notification.

At final payment, Design-Build Entity or Subcontractor must agree to assign City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 commencing with Section 16700 of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials pursuant to the Contract or the subcontract.

14.12 [INTENTIONALLY OMITTED]
ARTICLE 15 - Miscellaneous Provisions

15.1 GOVERNING LAW
A. Notwithstanding any subcontract or other contract with any Subcontractor, Supplier, or other person or organization performing any part of the Project, this Contract shall be governed by the law of the State of California excluding any choice of law provisions.

15.2 JURISDICTION; VENUE
A. The Design-Build Entity and any Subcontractor, supplier, or other person or organization performing any part of the Project agree that any action or suits at law or in equity arising out of or related to the proposal process, award, or performance of the Project shall be maintained in the Superior Court of

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Kern County, California, and expressly consent to the jurisdiction of said court, regardless of residence or domicile, and agree that said court shall be a proper venue for any such action.

15.3 SUCCESSORS AND ASSIGNS
A. City and the Design-Build Entity respectively bind themselves and their successors, permitted assigns, and legal representatives to the other party and to the successors, permitted assigns, and legal representatives of such other party in respect to covenants, Contracts, and obligations contained in the Contract Documents.

B. The Design-Build Entity shall not assign, transfer, convey, sublet, or otherwise dispose of this Contract or any part thereof including any claims, without prior written consent of City. Any assignment without the written consent of City shall be void. Any assignment of money due or to become due under this Contract shall be subject to a prior lien for services rendered or material supplied for performance of work called for under the Contract Documents in favor of all persons, firms, or corporations rendering such services or supplying such materials to the extent that claims are filed pursuant to the Civil Code, the Code of Civil Procedure or the Government Code.

15.4 RIGHTS AND REMEDIES/WAIVER
A. The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the parties hereto are in addition to, and are not to be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by Applicable Laws, by special warranty or guarantee, or by other provisions of the Contract Documents. The provisions of this Article will be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right, and remedy to which they apply.

B. No action or failure to act by City or City’s Representative will constitute a waiver of a right afforded them under the Contract, nor will such action or failure to act constitute approval of or acquiescence in a condition or breach thereunder, except as may be specifically agreed in writing. No waiver by City or City’s Representative of any condition, breach or default will constitute a waiver of any other condition, breach or default; nor will any such waiver constitute a continuing waiver.

C. No provision contained in the Contract Documents shall create or give to third parties any claim or right of action against City, City’s Representative, or the Design-Build Entity.

15.5 SURVIVAL
A. All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with the Contract Documents, as well as all continuing obligations indicated in the Contract Documents, will survive final payment, completion, and acceptance of the Project or termination or completion of the Contract or termination of the services of the Design-Build Entity.

15.6 COMPLETE CONTRACT
A. The Contract Documents constitute the full and complete understanding of the parties and supersede any previous agreements or understandings, oral or written, with respect to the subject matter hereof.

The Contract may be modified only by a written instrument signed by both parties or as otherwise provided in the Contract Documents.

15.7 SEVERABILITY OF PROVISIONS

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A. If any one or more of the provisions contained in the Contract Documents should be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

15.8 CITY’S RIGHT TO AUDIT
A. The Design-Build Entity shall make available to City for auditing, all relevant accounting records and documents, and other financial data, and upon request, shall submit true copies of requested records to City.

B. If the Design-Build Entity submits a Change Order Request or a Claim to City, City shall have the right to audit the Design-Build Entity’s books, records, documents, and other evidence to the extent they are relevant.

C. The right to audit shall include the right to examine books, records, documents, and other evidence and accounting procedures and practices, sufficient to discover and verify all direct and indirect costs of whatever nature claimed to have been incurred or anticipated to be incurred and for which the claim has been submitted, including but not limited to job cost reports, estimates, proposals, bids, proposal papers, documents of other work administered by the Design-Build Entity’s home office, and any and all other documentation relied upon by the Design-Build Entity to obtain this Contract.

City shall have the right to make and take copies of any records examined.

D. The right to audit shall include the right to inspect the Design-Build Entity’s plans, or such parts thereof, as may be or have been engaged in the performance of the Project.

E. The Design-Build Entity further agrees that the right to audit encompasses all subcontracts and is binding upon Subcontractors.

F. The right to audit provided herein shall be exercisable through such representatives as City deems desirable during the Design-Build Entity’s normal business hours at the Design-Build Entity’s office.

G. In accordance with Government Code Section 8546.7, records of both City and the Design-Build Entity shall be subject to examination and audit by the State Auditor General for a period of three (3) years after final payment. The Design-Build Entity shall make available to City any of the DesignBuild Entity’s other documents related to the Project immediately upon request of City. In addition to the State Auditor’s rights described above, City shall have the right to examine and audit all books, estimates, records, contracts, documents, Proposals, subcontracts, and other data of the DesignBuild Entity (including electronic records, computations and projections) related to negotiating, pricing, or performing the Project in order to evaluate the accuracy and completeness of the cost or pricing data, for a period of four (4) years after final payment.

15.9 NOTICES
A. Whenever any provision of the Contract Documents requires the giving of written notice, it will be deemed to have been validly given if:

1. delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended; or

2. delivered at or sent by registered or certified mail, postage prepaid, to the last business address known to the giver of the notice.

15.10 TIME OF THE ESSENCE

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A. Time limits stated in the Contract Documents are of the essence of the Contract.

15.11 STATUTORY LIMITATION
A. Commencement of statutory limitation periods and statute of repose periods shall be as follows:

1. As to acts or failures to act occurring prior to Final Completion, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than such date of Final Completion.

2. As to acts or failures to act occurring after the date of Final Completion, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than the date of any act or failure to act by the DesignBuild Entity pursuant to any applicable warranty, the date of any correction of work on the Project or failure to correct work by the Design-Build Entity, or the date of actual commission of any other act or failure to perform any duty or obligation by the Design-Build Entity or City, whichever occurs last.

3. The time period for the applicable statute of repose shall commence to run at Final Completion of the Project.

15.12 CORRECTION OF ERRORS AND OMISSIONS
A. The Design-Build Entity agrees to correct any error or omission in the Construction Documents or Contract Documents at no additional cost to City.

15.13 LIMITATIONS ON CITY’S RESPONSIBILITIES
A. City shall not supervise, direct, or have control or authority over, nor be responsible for, the DesignBuild Entity’s means, methods, techniques, sequences, or procedures of design or construction, or the safety precautions and programs incident thereto, or for any failure of the Design-Build Entity to comply with Applicable Laws applicable to the performance of the Project. City will not be responsible for the Design-Build Entity’s failure to perform the Project in accordance with the Contract Documents.

15.14 HEADINGS
A. Article and paragraph headings are inserted for convenience only and do not constitute parts of these General Conditions.

15.15 ALL LEGAL PROVISIONS INCLUDED
A. The Design-Build Entity shall give all notices and comply with all federal, state and local laws, ordinances, rules and regulations bearing on conduct of work as indicated and specified by their terms. References to specific laws, rules or regulations in this Contract are for reference purposes only and shall not limit or affect the applicability of provisions not specifically mentioned. If the Design-Build Entity observes that Construction Documents are at variance therewith, it shall promptly notify City in writing and any necessary changes shall be adjusted as provided for in this Contract for changes in work. If the Design-Build Entity performs any work knowing it to be contrary to such laws, ordinances, rules and regulations, and without such notice to City, it shall bear all costs arising therefrom.

B. The Design-Build Entity shall be responsible for familiarity with the Americans with Disabilities Act (“ADA”) (42 U.S.C. § 12101 et seq.). The Project will be performed in compliance with ADA laws,

ATTACHMENT 5
rules and regulations. The Design-Build Entity shall comply with the Historic Building Code, including, but not limited to, as it relates to the ADA, whenever applicable.

C. The Design-Build Entity acknowledges and understands that, pursuant to Public Contract Code Section 20676, sellers of "mined material" must be on an approved list of sellers published pursuant to Public Resources Code Section 2717(b) in order to supply mined material for this Contract.

D. No City official or representative who is authorized in such capacity and on behalf of City to negotiate, supervise, make, accept, or approve, or to take part in negotiating, supervising, making, accepting or approving any engineering, inspection, construction or material supply contract or any subcontract in connection with construction of the Project, shall be or become directly or indirectly interested financially in the Contract.

E. All provisions of law required to be inserted in the Contract or Contract Documents pursuant to any Applicable Laws shall be and are inserted herein. If through mistake, neglect, oversight, or otherwise, any such provision is not herein inserted or inserted in improper form, upon the application of either party, the Contract or Contract Documents shall be changed by City, at no increase in the Guaranteed Maximum Price or extension of the Guaranteed Completion Date, so as to strictly comply with the Applicable Laws and without prejudice to the rights of either party hereunder.

15.16 STATE LICENSE BOARD NOTICE
A. Contractors are required by law to be licensed and regulated by the Contractors’ State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four (4) years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural defects must be filed within ten (10) years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, the Contractors’ State License Board, P.O. Box 26000, Sacramento, California 95826.

15.17 AIR POLLUTION CONTROL
A. The Design-Build Entity shall comply with all air pollution control rules, regulations, ordinances and statutes. All containers of paint, thinner, curing compound, solvent or liquid asphalt shall be labeled to indicate that the contents fully comply with the applicable material requirements.

B. Without limiting the foregoing, the Design-Build Entity must fully comply with all applicable laws, rules and regulations in furnishing or using equipment and/or providing services, including, but not limited to, emissions limits and permitting requirements imposed by the Air Quality Management District with jurisdiction over the Project and/or California Air Resources Board (CARB). The Design-Build Entity shall specifically be aware of the application of these limits and requirements to "portable equipment", which definition includes any item of equipment with a fuel-powered engine.

15.18 NOISE
A. The Design-Build Entity shall use only such equipment on the Project and in such state of repair so that the emission of sound therefrom is within the noise tolerance level of that equipment as established by CAL-OSHA.

B. The Design-Build Entity shall comply with the most restrictive of the following: (1) local sound control and noise level rules, regulations and ordinances and (2) the requirements contained in these Contract Documents, including hours of operation requirements. No internal combustion engine shall be operated on the Project without a muffler of the type recommended by the manufacturer.

Should any muffler or other control device sustain damage or be determined to be ineffective or defective, the Design-Build Entity shall promptly remove the equipment and shall not return that

ATTACHMENT 5
equipment to the Project site until the device is repaired or replaced. Noise and vibration level requirements shall apply to all equipment on the jobsite or related to the Project, including but not limited to, trucks, transit mixers or transit equipment that may or may not be owned by the DesignBuild Entity.

15.19 CHANGE IN NAME OR NATURE OF DESIGN-BUILD ENTITY’S LEGAL ENTITY A. Should a change be contemplated in the name or nature of the Design-Build Entity’s legal entity, the Design-Build Entity shall first notify City in order that proper steps may be taken to have the change reflected in the Contract Documents and all related documents. No change of the Design-Build Entity’s name or nature will affect City’s rights under the Contract Documents, including but not limited to the bonds and insurance.

15.20 INTERPRETATION
The Contract Documents shall not be construed in favor of or against any party but shall be construed as if all parties prepared the Contract Documents.

END OF GENERAL CONDITIONS

ATTACHMENT 5

GENERAL REQUIREMENTS
SECTION 1.1 GENERAL

1.1.1 LAYOUT OF WORK AND QUANTITY SURVEYS
a. General. The Design-Build Entity shall utilize a properly licensed surveyor to perform all layout surveys required for the control and completion of the Project, and all necessary surveys to compute quantities of work performed.

City and/or the Engineer of Record has established primary control to be used by the Design-Build Entity for establishing lines and grades required for the Project.

Primary control consists of benchmarks and horizontal control points in the vicinity of the Project. A listing and identification of the primary control is provided on the Drawings. Before beginning any layout work or construction activity, the Design-Build Entity shall check and verify primary control, and shall advise the City’s Representative of any discrepancies.
b. Quantity surveys. The Design-Build Entity shall perform such surveys and computations as are necessary to determine quantities of work performed or placed during each progress payment period, and shall perform all surveys necessary for the City’s Representative to determine final quantities of work in place. The City’s Representative will determine final quantities based upon the survey data provided by the Design-Build Entity, and the design lines and grades. If requested by the City’s Representative, the Design-Build Entity shall provide an electronic copy of data used for quantity computations.

All surveys performed for measurement of final quantities of work and material shall be subject to approval of City’s Representative. Unless waived by City’s Representative in each specific case, quantity surveys made by the Design-Build Entity shall be made in the presence of City’s Representative. c. Surveying
(1) Accuracy. Degree of accuracy shall be an order high enough to satisfy tolerances specified for the Project and the following:
(a) Right-of-way and alignment of tangents and curves shall be within 0.1 foot. (b) Structure points shall be set within 0.01 foot, except where operational function of the special features or installation of metalwork and equipment require closer tolerances. When formwork has been placed and is ready for concrete, the Design-Build Entity shall check the formwork for conformance with the drawings and to ensure that the forms are sufficiently within the tolerance limits for the completed work.
(c) Cross-section points shall be located within 0.1 foot, horizontally and vertically. (d) Aerial Mapping shall meet National Mapping Standards for 2-foot contour intervals. d. Records. Survey data shall be recorded in accordance with recognized professional surveying standards.

Original field notes, computations, and other surveying data shall be recorded on electronic data collectors or in standard field books and must be of sufficient quality to enable the Design-Build Entity to prepare accurate record drawings as required by the Contract Documents. e. Cost. – Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required for surveys for the layout of work and quantity surveys shall be included in the Proposal

ATTACHMENT 5
for items of work requiring the surveys. No additional compensation shall be made to the Design-Build Entity for this work.

SECTION 1.2 MATERIALS

1.1.2 MATERIALS TO BE FURNISHED BY THE DESIGN-BUILD ENTITY a. Inspection of Materials. Materials furnished by the Design-Build Entity which will become a part of the Project shall be subject to inspection at any one or more of the following locations, as determined by City’s Representative: at the place of production or manufacture, at the shipping point, or at the site of the Project. To allow sufficient time to provide for inspection, the Design-Build Entity shall submit to City’s Representative, at the time of issuance, copies of purchase orders or other written instrument confirming procurement of the materials, including drawings and other pertinent information, covering materials on which inspection will be made.

No later than fourteen (14) Days prior to manufacture of material, Design-Build Entity shall inform City’s Representative, in writing, the date the material is to be manufactured. b. Design-Build Entity’s Obligations. The inspection of materials at any of the locations specified above or the waiving of the inspection thereof shall not impact whether the materials and equipment conform to the Contract Documents. The Design-Build Entity will not be relieved from furnishing materials meeting the requirements of the Contract Documents due to City’s inspection or lack of inspection of the equipment or materials. Acceptance of any materials will be made only after materials are installed in the Project.
c. Cost. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required to accommodate City’s testing efforts, including any travel required by the Design-Build Entity’s forces, shall be included in the Design-Build Entity’s Proposal. No additional compensation shall be made to the Design-Build Entity for this work.

SECTION 1.3 LOCAL CONDITIONS AND REQUIREMENTS

1.1.3 ACCESS TO THE WORK AND HAUL ROUTES
a. General. All work on the rights-of-way necessary for access to the Project site shall be performed by the Design-Build Entity.
b. Access, Damage, Restoration. The Design-Build Entity shall make his own investigation of the condition of available public or private roads and of clearances, restrictions, bridge-load limits, permit or bond requirements, and other limitations that affect or may affect transportation and ingress or egress at the Project site. Claims for changes in Contract Price or Contract Times arising out of the unavailability of transportation facilities or limitations thereon shall not be considered by City.

The Design-Build Entity shall maintain and repair any damage arising out of the Design-Build Entity’s operations to all roads used during construction of the Project, and upon completion of all work, but prior to final acceptance, the roads shall be restored to their original condition. Prior to using any road for access to the Project site, the Design-Build Entity shall conduct a photograph and/or video survey of the roadway with a copy submitted to City’s representative. c. Cost. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required to complete this work, shall be included in the Design-Build Entity’s Proposal. No additional compensation shall be made to the Design-Build Entity for this work.

ATTACHMENT 5

1.1.4 CONSTRUCTION AT EXISTING UTILITIES
a. General. Where the work to be performed crosses or otherwise interferes with water, sewer, gas, or oil pipelines; buried cable; or other public or private utilities, the Design-Build Entity shall perform construction in such a manner so that no damage will result to either public or private utilities. It shall be the responsibility of the Design-Build Entity to determine the actual locations of, and make accommodates to maintain, all utilities.
b. Permission, Notice and Liability. Before any utility is taken out of service, permission shall be obtained by the Design-Build Entity from the owner. The owner, any impacted resident or business owner and the City’s Representative will be advised of the nature and duration of the utility outage as well as the DesignBuild Entity’s plan for providing temporary utilities if required by the owner. The Design-Build Entity shall be liable for all damage which may result from its failure to maintain utilities during the progress of the Project, and the Design-Build Entity shall indemnify City as required by the Contract Documents from all claims arising out of or connected with damage to utilities encountered during construction; damages resulting from disruption of service; and injury to persons or damage to property resulting from the negligent, accidental, or intentional breaching of utilities. c. Cost. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required to complete this work, shall be included in the Design-Build Entity’s Proposal. No additional compensation shall be made to the Design-Build Entity for this work.

1.1.5 TRAFFIC CONTROL
a. General. The Design-Build Entity shall abide by traffic control plans approved by the appropriate jurisdiction.
b. Protections. Roads subject to interference by the Project shall be kept open or suitable temporary passages through the Project site shall be provided and maintained by the Design-Build Entity. The Design-Build Entity shall provide, erect, and maintain all necessary barricades, suitable and sufficient flasher lights, flag persons, danger signals, and signs, and shall take all necessary precautions for the protection of the Project and the safety of the public. No construction work along public or private roads may proceed until the Design-Build Entity has proper barricades, flasher lights, flag persons, signals, and signs in place at the construction site.
c. Cost. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required to complete this work, shall be included in the Design-Build Entity’s Proposal. No additional compensation shall be made to the Design-Build Entity for this work.

SECTION 1.4 ENVIRONMENTAL QUALITY PROTECTION

1.1.6 LANDSCAPE AND VEGETATION PRESERVATION
a. General. The Design-Build Entity shall exercise care to preserve the natural landscape and vegetation, and shall conduct operations so as to prevent unnecessary destruction, scarring, or defacing of the natural surroundings in the vicinity of the Project.
b. Damage and Restoration. Movement of crews and equipment within the rights-of-way and over routes provided for access to the Project site shall be performed in a manner to prevent damage to property.

When no longer required, construction roads shall be restored to original contours.

Upon completion of the Project, and following removal of construction facilities and required cleanup, land used for construction purposes and not required for the completed installation shall be scarified and regraded, as required, so that all surfaces are left in a condition that will facilitate

ATTACHMENT 5
natural revegetation, provide for proper drainage, and prevent erosion. c. Cost. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required to complete this work, shall be included in the Design-Build Entity’s Proposal. No additional compensation shall be made to the Design-Build Entity for this work.

1.1.7 PROTECTED SPECIES
a. General. If, in the performance of the Project, evidence of the possible occurrence of any Federally listed threatened or endangered plant or animal is discovered, the Design-Build Entity shall notify the City’s Representative immediately, giving the location and nature of the findings. Written confirmation of the evidence, location and nature of the findings shall be forwarded to City within 2 Days. b. Procedures. The Design-Build Entity shall immediately cease all construction activities in the immediate area of the discovery to the extent necessary to protect the endangered plant or animal.

If directed by the City’s Representative, the Design-Build Entity will refrain from working in the immediate area, suspend the Project in its entirety, or alter its performance to ensure full compliance with all applicable permits, laws and regulations. Any City directed changes to the Project as a result of a siting will be pursuant to the Contract Documents.
c. False Siting. Any costs or delays incurred by City or the Design-Build Entity due to unreasonable or false notification of an endangered plant or animal will be borne by the Design-Build Entity. d. Cost. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required to comply with this paragraph, shall be included in the Design-Build Entity’s Proposal. No additional compensation shall be made to the Design-Build Entity for this work.

1.1.8 PRESERVATION OF HISTORICAL AND ARCHEOLOGICAL RESOURCES a. General. If, in the performance of the Project, the Design-Build Entity should unearth cultural resources (for example, human remains, animal bones, stone tools, artifacts and/or midden deposits) through excavation, grading, watering or other means, the Design-Build Entity notify the Construction/Archeological Monitor and/or the City’s Representative immediately, giving the location and nature of the findings. Written confirmation of the evidence, location and nature of the findings shall be forwarded to the Construction/Archeological Monitor and/or City within 2 Days. b. Procedures. The Design-Build Entity shall immediately cease all construction activities in the immediate area of the discovery to the extent necessary to protect the cultural resource.

If directed by the City’s Representative, the Design-Build Entity will refrain from working in the immediate area, suspend the Project in its entirety, or re-sequence and/or alter its performance to ensure full compliance with all applicable permits, laws and regulations. Should the presence of cultural resources be confirmed, the Design-Build Entity will assist the City’s Representative and the Construction/Archeological Monitor in the preparation and implementation of a data recovery plan. The Design-Build Entity shall provide such cooperation and assistance as may be necessary to preserve the cultural resources for removal or other disposition. Any City directed changes to the Project as a result of the cultural resource will be pursuant to the Contract Documents. c. Design-Build Entity’s Liability. Should the Design-Build Entity, without permission, injure, destroy, excavate, appropriate, or remove any cultural resource on or adjacent to the Project site, it will be subject to disciplinary action, arrest and penalty under applicable law. The Design-Build Entity shall be principally responsible for all costs of mitigation and/or restoration of cultural resources related to the unauthorized actions identified above. The Design-Build Entity shall be required to pay for unauthorized damage and

ATTACHMENT 5
mitigation costs to cultural resources (historical and archeological resources) as a result of unauthorized activities that damage cultural resources and shall indemnify City pursuant to the Contract Documents. d. Cost. Unless otherwise called for by the Contract Documents, the cost of all material, equipment, and labor required to comply with this paragraph, shall be included in the Design-Build Entity’s Proposal. No additional compensation shall be made to the Design-Build Entity for this work.

END OF GENERAL REQUIREMENTS

ATTACHMENT 5

SPECIAL CONDITIONS

1.1 Status of the Project Area and Rights-of-Way.

A. City, at its expense, will provide all rights-of-way or permits, or both, covering the crossing of private property and public and private rights-of-way necessary for the permanent work; provided, however, the Design-Build Entity shall, at its expense, obtain any bonds or insurance policies or pay any fees and enter into any agreements required by a controlling authority, e.g., Caltrans or Southern Pacific Railroad Company, before the Design-Build Entity enters upon any property or right-of-way under the jurisdiction of any such controlling authority for the purpose of performing the Project.

B. City has acquired or is negotiating to acquire any rights-of-way, or both, necessary for the permanent work.

C. If such permits are required, all operations of the Design-Build Entity shall conform to the restrictions, regulations, and requirements set forth in said permits, copies of which will be included in the Contract Documents.

D. The Design-Build Entity may be required, as a condition for receiving final payment, to obtain, and provide City’s Representative with copies of, executed damage releases from the owners of public and private property whose property has been damaged by the work. The damage releases will be on a form provided by City.

E. The Design-Build Entity shall, also, as a condition for receiving final payment, obtain, and provide City’s Representative with copies of, executed damage releases from the owners of certain public and private property or areas which have been crossed by the work or otherwise affected by the work. The damage releases will be on a form provided by City.

1.2 Project Retention
In accordance with Public Contract Code § 7201, City will withhold 5% of each progress payment as retention on the Project.

1.3 Utility Outages – Notices to Residents.

A. Should the Design-Build Entity’s operations require interruption of any utility service, the Design-Build Entity shall notify City at least ten (10) days prior to the scheduled outage. The Design-Build Entity will notify all impacted residents on a form provided by City at least seven (7) days prior to the scheduled outage.

B. The Design-Build Entity shall be responsible for providing, at its cost, any temporary utility or facilities necessitated by the utility outage.

1.4 Temporary Field Office
NOT USED.

OR

1.5 Inspector’s Field Office. The Design-Build Entity shall be responsible for providing the inspector’s field office.

The office shall be a substantial waterproof construction with adequate natural light and ventilation by means of stock design windows. Door shall have a key type lock or padlock clasp. The office shall have heating and air conditioning and shall be equipped with a telephone, a telephone answering machine, high-speed internet connection, and a fax machine at the Design-Build Entity’s expense. A table satisfactory for the study of plans

ATTACHMENT 5
and two chairs shall be provided by the Design-Build Entity. The Design-Build Entity shall provide and pay for adequate electric lights, local telephone service, and adequate heat and air conditioning for the field office until authorized removal.

1.6 Utility Services. The Design-Build Entity, at its expense, shall arrange for, develop and maintain all utilities, including but not limited to water, electric power, sewage disposal and telephone communications, at the Project site to meet the requirements of the work.

1.7 Sanitation. The Design-Build Entity shall provide sanitary facilities for all persons working on the project.

These facilities shall be kept clean and shall not be unsightly or produce odors.

END OF SPECIAL CONDITIONS

CONSENT CALENDAR

CITY OF SHAFTER

CITY COUNCIL REPORT
MEETING DATE: February 21, 2023
FROM: Gabriel A. Gonzalez, City Manager
PREPARED BY: Scott Wiggins, IT Manager
SUBJECT: AUTHORIZE RELEASE OF REQUEST FOR PROPOSAL FOR

DEVELOPMENT OF A BROADBAND MASTER PLAN

RECOMMENDATION
Council find the requested action is not a "project" per the California Environmental Quality Act; and approve a Request for Proposals (RFP) for the Development of a Broadband Master Plan.

BACKGROUND
The City was recently awarded grant funding to assist in the development of a citywide Broadband Master Plan. In November 2022, Information Technology staff secured $499,954 in funding from the State of California’s Local Agency Technical Assistance (LATA) program, which will assist the City in accomplishing the initial steps necessary to attract a new broadband operator.

The Shafter fiber optic network, known as Shafter Connect, began its journey in 2006 at the direction of City Council. The results of over 17 years of planning, construction, and inspection have led to our existing fiber optic network, including the following accomplishments:
• Installation of over 95 linear miles of conduit and 40 miles fiber optic cable. • Interconnection of all City facilities in the core area on a 10 Gbps fiber ring. • Interconnection to the Kern County Courts for law enforcement services. • Providing Richland School District with dark fiber connections between campuses and enabling high-speed internet service.
• Acquisition of regional and national internet service providers. • Reliable fiber-based internet services provided to businesses and Gossamer Grove residents.

With all the benefits Shafter Connect affords, the city has little influence on the existing internet service providers (ISPs), including Vast Networks and Lumen/CenturyLink. These providers, whose business models are focused on providing dedicated enterprise-class services, have historically focused their efforts away from residential and small business customers in the city. Nor do their agreements with the city have any requirement for them to build networks to focus their efforts on these service areas. This gap in service potential from our current providers

AUTHORIZE RELEASE OF REQUEST FOR PROPOSAL FOR DEVELOPMENT OF A BROADBAND

MASTER PLAN
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has led to only 25 active subscribers out of more than 1,300 homes in Gossamer Grove alone. Additionally, these business models tend to focus attention away from many of the disadvantaged communities, leading to an increase in unserved and underserved residents.

To help remedy the unmet broadband needs, the City must perform an assessment of internet services currently available throughout the community and an assessment of existing City assets. Performing a service needs assessment will help to identify the areas of the city that do not have adequate or affordable internet services available.

Performing an asset assessment will help identify the best methods of delivering services to the areas of need. Together, these assessments will guide the development of the broadband master plan and ultimately allow the City to secure a consultant for design engineering support services in a timely manner.

At this time, it is in the best interest of the City to develop a full-scale broadband master plan that will accomplish several integral tasks necessary for attracting another network operator and internet service provider which will provide reliable internet service to those residents without access at this time.

ANALYSIS
Development of a broadband master plan is critical for the success of Shafter Connect in helping eliminate the “digital divide” and building broadband equity throughout the community. In addition to the assessments of needs and assets, developing a broadband master plan will:
• Lead to the development of an RFP for design engineering support services in a timely manner.
• Assess city policies and identify needs or exclusions to existing policy that could inhibit our long-term goals.
• Develop a vision statement defining the goals, roles, and initiatives for City consideration.
• Build a proactive strategy of utilizing support initiatives that will lead to a more connected community.
• Provide critical information leading to potential initiatives that will deliver broadband access to key public areas of the community.
• Evaluation of financial resources and business models under which broadband development, management, and utilization will be most beneficial. • Coordinated next steps, phased cost estimates, and roadmaps for implementing the Broadband Master Plan.

Upon Council recommendation, the RFP is scheduled for release to formal bidding on February 22, 2023 and the anticipated contract length for this project is 12 months. During this time, several project tasks will be accomplished ahead of the overall master plan development that will assist the City in retaining a consultant for design engineering support services, the last requirement necessary in attracting a new network operator and/or internet service provider. Obtaining a consultant to develop the Broadband Master Plan provides the most effective use of City resources and an

AUTHORIZE RELEASE OF REQUEST FOR PROPOSAL FOR DEVELOPMENT OF A BROADBAND

MASTER PLAN
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experienced consultant is likely to complete the scope of work quickly and more costeffectively.

FISCAL IMPACT
The City has secured Local Agency Technical Assistance (LATA) grant funding that will assist in reimbursing the City’s contractual costs. In lieu of reimbursement, costs to conduct the RFP will be covered by existing Telecommunications Enterprise funding without budget action required by the Council. Additionally, no other fiscal impact is expected based upon the terms of the RFP and Service Agreement.

CEQA ANALYSIS
The action is not defined as a “project” per Section 15378(b)(5) of the CEQA Guidelines because the action is approval to 1) release a Request for Proposal for the development of a Broadband Master Plan and 2) create a Request for Proposal for Design Engineering Support Services and therefore, it is organizational and administrative activity that will not result in direct or indirect physical changes to the environment and not subject to CEQA. The future Master Plan and approval to release the future Request for Proposal for Design Engineering Support Services would have to undergo subsequent environmental review.

APPROVED BY THE CITY ATTORNEY

ALTERNATIVES
The Council can reject the recommendation and direct staff to pursue other options. Other options include the development of an RFP that restricts the scope of work to only a needs assessment (Task 3 in the RFP Scope of Work) which may satisfy the requirements necessary to complete design engineering services in our unserved communities. Because funding is available to complete a full-scale scope of work, which makes the City more attractive to a potential operator or internet service provider in the future, the alternative option is not recommended.

NEXT STEPS
Upon authorization by the Council, the RFP and Service Agreement will be released to the public through formal bidding and known prospective respondents will be contacted by staff. The bidding is scheduled to close on March 24, 2023 with vendor selection anticipated during the week of April 3, 2023. A recommendation to award will be brought before the Council for review and possible action.

ATTACHMENTS

1. Request for Proposal 2023-IT-01 for the Development of a Broadband Master Plan

2. Service Agreement for the Development of a Broadband Master Plan and creation of a Request for Proposal (RFP) for Design Engineering Support Services

CITY OF SHAFTER, CALIFORNIA

REQUEST FOR PROPOSALS
for the

DEVELOPMENT OF A BROADBAND MASTER PLAN
RFP #2023-IT-01
Release Date: February 22, 2023
City of Shafter
336 Pacific Avenue
Shafter, CA 93263
Deadline for Proposal Submission:

March 24, 2023

1 Contents
DEVELOPMENT OF A BROADBAND MASTER PLAN...................................................................... 0 Introduction............................................................................................................................... 3 City Overview...........................................................................................................................................3 Expanding the City’s Broadband Goals.....................................................................................................3 Shafter’s Existing Fiber Network ..............................................................................................................4 City-Owned Fiber Optic Cable....................................................................................................................................4 Figure 1 – Existing Primary Fiber Cable Routes 4
Table 1 – Existing Fiber Cable Routes with Available Strand Count 5 City-Owned Conduit...................................................................................................................................................5 Figure 2 – City’s Conduit Infrastructure 6
Table 2 – Shafter Conduit Space Currently Available for Use 6 City Facilities and Properties......................................................................................................................................6 Figure 3 – Hub Boundaries 7
Scope of Work ........................................................................................................................... 8 General Description .................................................................................................................................8 Task 1: Project Kick-off Meeting...............................................................................................................8 Task 2: Review of Existing Systems & City-owned Broadband Assets......................................................8 Task 3: Needs Assessment........................................................................................................................9 Task 4: Generate Broadband Design Engineering Support Services Request for Proposals (RFP)...........10 Task 5: Assessment of City Policies........................................................................................................10 Task 6: Gap Analysis...............................................................................................................................11 Task 7: Broadband Master Plan..............................................................................................................12 Task 8: Deliverables ...............................................................................................................................12 RFP Schedule ............................................................................................................................13 Schedule of Activities.............................................................................................................................13 Question & Answer Details....................................................................................................................13 Contacts ...................................................................................................................................14 Evaluation Criteria....................................................................................................................14 Scoring Criteria.......................................................................................................................................15 Administrative Requirements and Clarifications........................................................................15 No Bidding Commitments......................................................................................................................15 Clarification of Proposals.......................................................................................................................15 Response Costs......................................................................................................................................16 Errors and Omissions in the RFP.............................................................................................................16 Ownership and Confidentiality of Responses.........................................................................................16 Development of the Final Agreement........................................................................................16

2 Agreement Execution.............................................................................................................................16 General Provisions....................................................................................................................17 Business Tax Certificate..........................................................................................................................17 Basic Eligibility........................................................................................................................................17 Addenda.................................................................................................................................................17

3 Introduction
City Overview
The City of Shafter is a charter city located in Kern County at the south end of California’s Central Valley and shares its southern border with Bakersfield, California. Shafter has a population of approximately 22,000 residents, with projected growth to nearly 30,000 expected by 2030. The City has a total area of 38 square miles and is currently California’s center of population and equidistant from both the Oakland Port and Long Beach/Los Angeles Port. Additionally, the City ranks in the top 10 for both financial stability and sales tax income per capita in the state.

Shafter has roughly 5,000 households and is projected to grow by 9,000 single family homes and 1,300 multi-family dwelling units by 2042, as there are several new housing developments currently under construction or planned, including an existing master-planned development in the city’s southeastern section. Shafter’s current households have a median income of $46,000 with roughly 40% of the labor force working in surrounding agricultural jobs. Data shows 82.4% of the residents are Hispanic, with 32.5% of Shafter’s total population under 18 years old and 7.9% over the age of

65. With a poverty level of 23.5 percent, the city also includes various communities that are underserved and unserved with respect to broadband internet access.

The Wonderful Industrial Park covers over 1,600 acres in the City’s central section and has become one of the most important logistical and distribution centers in the United States. With leading retailers like Amazon, Walmart, Target, Ross Dress for Less, Federal Express, American Tire Distribution, Essendant, and Scelzi Enterprises, the Wonderful Company expects to add as much as 10 million square feet of distributions centers bringing 10,000 new jobs over the next five years.

They are also building their own new corporate offices with a world class training facility, public cafeteria, fitness center, and other amenities.

Expanding the City’s Broadband Goals
The City of Shafter seeks to develop a Broadband Master Plan that will aid in expanding access to quality, high-speed networking capabilities to the residents and businesses with the community in the years and decades to come. The City has a unique opportunity to capitalize on its existing fiber network by expanding from a semi-private network supporting limited City buildings and systems to a more open network platform that can be leveraged for the economic and social benefit of the public. City officials hope that the development of this plan will provide more information around effectively utilizing public and private infrastructure, increasing coordination among City departments and external stakeholders that creates a transparent process to identify and prioritize opportunities to expand broadband access to underserved residents, and ultimately positioning the City to maximize the community benefits of future public-private provider agreements.

City officials have identified four specific City goals central to the Plan’s development:

1. Assess the state of the City’s existing fiber optic network to better identify the areas where infrastructure gaps exist.

2. Expand fiber access for public facilities and infrastructure to ensure continuous connectivity and service resilience for public safety, emergency response, and other essential City functions.

3. Address the ‘digital divide’ by increasing broadband internet access for low income and disadvantaged residents, including those who are currently unserved or underserved.

4 4. Improve broadband access in key commercial areas to maintain Shafter’s economic competitiveness, focusing on our ability to retain and attract job‐creating businesses, entrepreneurs, and other technology‐reliant innovators.

Shafter’s Existing Fiber Network
The City owns or controls the public right-of-way within its jurisdictional boundaries and owns, operates, and maintains assets including underground fiber optic cables, conduit, and enclosures as well as properties and facilities. The City has made limited use of these assets to date but wishes to promote the expansion and adoption of residential and commercial broadband to all facilities within its city limits.

City-Owned Fiber Optic Cable
To date, the City owns and maintains approximately 40 miles of underground fiber optic cable that runs through the original core city area along the downtown corridor, schools, and some residential areas; adjacent to every facility within the industrial park; and to the curb of all new homes in the southeast residential developments.

Figure 1 – Existing Primary Fiber Cable Routes

5 Table 1 – Existing Fiber Cable Routes with Available Strand Count Location Status Year Total
Strands
Downtown Corridor - 1.9 Miles Existing 2008 96
North Mannel Ave Schools – 1.1 Miles Existing 2012 24
Statewide Long-haul Interconnect – 1.8 Miles Existing 2014 48 Backbone Ring - 20.3 Miles Existing 2014 288
Industrial Park Ring – 4.3 Miles Existing 2014 48
Southeast Residential Development – 2.5 Miles Existing 2015 48 Core Southwest to School/Park – 1.5 Miles Existing 2017 96 City-Owned Conduit
The City’s conduit currently stretches 500,000 linear feet and consists of 2 inch or 4 inch sizing.

The conduit depth standard is 36 inches below grade, and most are 32 to 40 inches deep. Conduit assets are mostly HDPE with some PVC, and most do not contain any innerduct. Conduit for new residential developments since approximately 2015 are 3-2 inch. HDPE along arterial streets, 7-Way FuturePath throughout the neighborhoods, and Microduct or 1-1/4 inch HDPE into the homes. Some new commercial developments since approximately 2010 and all industrial park developments since about 2014 have placed dedicated PVC conduits from their equipment rooms to either edge of rights-of-way or into existing City enclosures for future fiber connectivity. Most segments have one or two unoccupied conduits.

6 Figure 2 – City’s Conduit Infrastructure
Table 2 – Shafter Conduit Space Currently Available for Use Segment Conduit
Type
Conduit
Qty
Size
(in.)
Path Feet
Downtown Corridor Extension HDPE 1 - <2 2 10,020
North Mannel Ave Schools HDPE 5,560
Backbone Ring HDPE 1 - <2 2 106,900
Statewide Long-haul Interconnect HDPE 1 - <2 2 9,682
Industrial Park Streets HDPE 1 - <2 2 22,757
Southeast Residential Development HDPE 2 2 13,140
Core Southwest to School/Park HDPE 2 2 7,785
City Facilities and Properties
The City owns facilities and properties which facilitate the distribution of broadband services throughout the four activity hubs within the city. These assets include, but are not limited to, rack space for equipment, floor space for racks/cabinets, and ground space for cabinets or buildings at fiber points-of-presence. The City’s four hub sites are:

7 • Lerdo Central Office – 5821 E. Lerdo Hwy – This primary fiber point-of-presence has floor space and power for one (1) 7 ft. 19 or 23 in. equipment cabinet within and adjacent ground space available.
• Fanucchi Communications Tower – 4451 Fanucchi Way – The communications building has minimal open rack space, but the site has adjacent ground space available if additional significant infrastructure is needed.
• Veterans Park – 500 W. Los Angeles Ave – This 96-stand fiber point-of-presence has ground space for additional equipment cabinets.
• Gossamer Grove Fiber Node – 3851 Gossamer Grove Blvd – This two-cabinet fiber node, located on a commercial property, is the distribution point for the 1,200+ single-family dwelling units built since 2015 plus continued construction of hundreds more.

Figure 3 – Hub Boundaries
Lerdo Central Office
Gossamer Grove
Fanucchi Tower
Veterans Park

8 Scope of Work
General Description
The overall responsibility and scope of work for the respondent is to prepare a Broadband Master Plan for the City of Shafter that reviews existing broadband assets, assesses the needs of the community and city policy, proposes realistic and attainable broadband implementation strategies, and develops a request for proposal for future design engineering.

The respondent shall provide professional services to support the following tasks:

Task 1: Project Kick-off Meeting
The consultant shall schedule a virtual kick-off meeting between the consultant and city staff to be held within ten business days of contract start date. The consultant shall prepare and transmit a draft Project Management Plan (PMP), or similar, prior to the meeting. The PMP will include a schedule for all tasks and identify deliverables and progress reporting dates. The consultant shall receive feedback on the draft PMP and submit a final PMP within 7 business days following the kick‐ off meeting.

Task 2: Review of Existing Systems & City-owned Broadband Assets The objective of this task is to review city assets, data and information required to facilitate the preparation of an engineering study, network design, deployment cost model and potential business model for a broadband network. This task will involve the research and evaluation of the current supply of broadband communication assets, products, capacity, and services. City assets could include fiber assets, assets that support fiber network deployment, assets that currently or could accommodate small cell antennas, including street light poles, traffic signal poles, water tanks and City buildings. Include maps of any private telecommunications broadband infrastructure, to the extent public data exists.

The deliverable for this task will be an inventory and assessment of current broadband infrastructure required to support deployment of a fiber optic network for city residents, especially those living in unserved and underserved communities. The deliverable, a detailed technical memorandum, will include maps of current public telecommunications broadband infrastructure from available data.

In 2022, the city completed a fiber network infrastructure assessment that will be shared with the consultant. The remaining assessment tasks should also include city-owned broadband communication assets, products, capacity and services in the City but not necessarily limited to:
• Physical inspection and evaluation (e.g., “rod and roping”), of city-owned communications conduit, including but not limited to traffic signal interconnect conduit. • Verification of existing documentation of city-owned fiber routes, if any. • Inventory of Capital Improvement Program (CIP) projects in progress and the projects planned for the next five years.
• Inventory of paving projects
• Inventory and capacity estimate of broadband-relevant city-owned real estate, including but not limited to existing and potential wireless sites and wireline node locations.

9 • Inventory and capacity estimate of city-owned vertical assets outside of the public right of way (e.g., buildings, parks, and open spaces).
• Inventory and capacity estimate of city-owned vertical assets within the public right of way (e.g., traffic signals, streetlights).

Task 3: Needs Assessment
The City of Shafter wishes to identify both met and unmet broadband infrastructure, service and access needs. The objective of this task is to conduct a needs assessment to gather information on current data communication needs and usage in the community. The City is interested in a thorough evaluation of the different business models that could be used to deploy a residential broadband network for unserved and underserved areas, schools, parks, and additional residential, commercial, and economic development areas. Also include a high-level assessment of other technologies (either currently available or anticipated in the future) that could provide a comparable quality of residential service at a lower cost (e.g., wireless broadband).

Market research should address various sectors such as:
• Residential consumers
• Economically disadvantaged populations
• Unserved and underserved communities
• Large employers
• Small and medium sized businesses
• Healthcare providers
• Multi-tenant property owners
• Schools (both K-12 and higher education)
• Local government and non-profit organizations
• Businesses, residents, property owners and developers with interests in distinct geographic areas such as:
- Downtown/Core Shafter
- Community gathering areas (such as parks and Veterans Hall) - Industrial zoned properties, including the Wonderful Industrial Park - Highways
- Public transportation areas
- Library
- Eating, Shopping, and Entertainment areas
This objective includes public access needs, such as Wi‐Fi hot spots or community informational kiosks, as well as commercial and industrial broadband resource requirements, other economic development opportunities or constraints, and the resources required to support City operations.

The city expects this assessment will require:

1. Review of the research, analysis and planning previously completed by the City.

2. City staff workshops.

3. Engagement of the community to gather feedback on priority sites and broadband uses through a public engagement process.
• Priority sites may be eligible for existing or future grant funding sources, and are typically defined as areas of need, including unserved/underserved and disadvantaged communities.

10 4. Business owners’ assessment process.

5. Meetings with service providers.

6. Evaluation of existing residential broadband business models.

7. Identification of trends within Shafter that will shape broadband use.

8. Development of top‐level projections for broadband service demand.

9. Identify and map potential businesses, subdivisions, schools, government-owned properties, and other locations that have a need for broadband service.

10. Given the city's telecommunication needs, assess the network resources required to meet these needs and recommendations for utilizing and further developing City‐owned and third-party resources to meet these needs. This assessment shall include both wireless and wireline technologies, and address the full spectrum of current and future City telecommunication needs, including but not limited to:
• Fiber to all city buildings to include city-owned parks, community centers, aquatics centers, recreational facilities, Smart City initiatives, traffic safety, IoT applications, wireless field support for mobile workers and fixed installations, advanced high speed network operations, wholesale access to high-capacity Internet.

Task 4: Generate Broadband Design Engineering Support Services Request for Proposals (RFP)
Once the review of city systems and assets (Task 2) as well as an assessment of need (Task 3) are completed, the City requests the development of a Request for Proposals (RFP) supporting a citywide design engineering infrastructure plan. The completion of tasks 1–3 above allow for finalizing the scope of work necessary to develop an RFP for design engineering support services.

The expectation of the City is that Task 4 will be completed immediately after the conclusion of the tasks above and when all relevant data has been compiled.

The City’s overall goal includes creating a design engineering plan to provision last-mile broadband internet services to every residential and commercial facility within the city limits using a publicprivate partnership. The City will be proactive in working with the chosen consultant to develop an appropriate set of tasks for this request for proposals, as well as all other information products to be included in the final draft. City staff, including the Project Coordinators listed as Contacts, will be available to provide assistance to the consultant during this time.

Task 5: Assessment of City Policies
While the City does not have considerable policy measures or ordinances in place regarding its fiber optic network, the objective of this task is to assess current policies, agreements, and business practices that directly or indirectly have an impact on broadband development, deployment, and use.

The city wishes to have:

1. Policies collected, cataloged, and summarized in a comprehensive manner.

2. Policy or contractual gaps identified.

11 3. Policies and best practices recommended that other cities have used to increase broadband quality and access to ensure service resilience, support business/economic development, and increase equitable growth.

4. Potential costs and replicability of those policies defined.

These policies and business practices shall include but not necessarily be limited to:

1. Mission statements

2. General plan, master plans and other land use policies

3. Broadband-specific plans, policies, and ordinances, including Dig once/open trench/shadow conduit/excavation policies, aesthetics policy, GIS data and digital plan submission, and broadband infrastructure construction standards, including but not limited to conduit specifications, broadband building standards, smart building requirements, and specifications for public facilities, new construction, and major remodeling projects.

4. Fiduciary requirements, constraints, and procedures, including those related to City network operations and ownership, and the private use of municipal assets including but not limited to master leases.

5. Regulatory policy, including but not limited to City’s currently established role, franchise compliance, enforcement liaison with other agencies, and competitive access to multiple occupancy buildings.

6. Government operations, including but not limited to online access to City services, online permitting, open data, and public housing facilities.

7. Wireless facilities permitting.

Task 6: Gap Analysis
Once the needs assessment is concluded, existing public/private resources are identified, and City policies have been inventoried and evaluated, the next step is to conduct a gap analysis that identifies the resources and policies that are sufficient to increase broadband quality and access, ensure service resilience, and support business/economic development.

The analysis should include:

1. Identification of resources and policies that are sufficient for attaining the City’s broadband goals.

2. Identification of resources and policy gaps that constrain or inhibit attainment of the City’s broadband goals.

3. Identification of existing resources and policies that are currently sufficient but could be better configured, managed, optimized, or improved.

4. Recommendations on routes and locations of fiber infrastructure, equipment, and points of connection and identify infrastructure and technical requirements for any recommended infrastructure improvements.

The deliverable for Task 6 will be a SWOT matrix, with supporting information and maps, assessing the means currently available to the City, and the additional measures required to achieve its broadband infrastructure goals.

12 Task 7: Broadband Master Plan
While the City has historically designed and overseen the build-out of its fiber optic network, the City’s primary goal for the future of the system is to transfer these responsibilities to a non-affiliated partner. As such, the Broadband Master Plan should include, but not be limited to:

1. A strategic vision statement describing the City’s broadband development goals, the City's role in achieving these goals and the general types of initiatives, such as public‐private partnerships, municipally owned and managed systems and direct engagement with service providers and regulators, that the City will consider while pursuing these goals.

2. An analysis of the overall broadband infrastructure available in Shafter (including surrounding areas), starting with separate assessments of third party and City‐owned resources and proceeding to a scenario(s) involving coordinated use and possible integration of these resources.

3. A proactive strategy, including recommendations for implementable initiatives, for matching the broadband infrastructure, service and access available to the City's needs, goals and plans. This strategy will include near‐term measures to match available technology and resources to the City's objectives, and a long-term road map that anticipates future emerging technology, such as small cell/5G networks and the Internet of Things (IoT), and basic infrastructure improvements, such as fiber densification and vertical asset development, that these new platforms will require.

4. A public broadband access initiative that identifies key locations, including the downtown city core, city-owned parks, community facilities, and recreation and sports facilities where wireless and/or wireline access to broadband and online services should be made available. This initiative may include Wi‐Fi hot spots, public kiosks and other recommendations for improving access to telecommunications resources and Internet delivered/enabled services for all Shafter residents.

5. Cost benefit analysis for the City being a service provider to its residents, including unserved and underserved communities (public vs. private ISP pros and cons).

6. Recommendations for identifying or prescribing new, updated, or amended City policies that will support the Broadband Master Plan's strategic vision, road map, initiatives, and programs.

7. Financial resources and methods available to the City for broadband infrastructure development, management and utilization. This assessment will include, but not necessarily be limited to, an analysis of available grant funding, tax increment options, such as enhanced infrastructure financing districts, capital improvement funding, development loans, private investments and partnerships, and a summary of possible business models and plans.

8. The plan should provide next steps for implementing the Broadband Master Plan including cost estimates for each implementation phase, and a conceptual roadmap for short-term (0-5 years), mid-term (6-10 years) and long‐term (10 plus years) implementation of all recommendations.

Task 8: Deliverables
The selected vendor shall be responsible for providing all reports, documents, and supporting materials to the City for future use. In addition to the Broadband Master Plan, the final deliverable will include:

1. An executive summary not to exceed three (3) pages and appendices (which may be compiled in a separate document) that contain the complete work product from all Tasks.

2. Final technical memoranda from each previous Task.

13 3. Final recommendations and an implementation road map.

4. Maps and specific location data provided in the Broadband Master Plan should be GIS compatible so that construction can be coordinated with other City infrastructure projects.

5. The consultant shall also prepare a PowerPoint presentation, and be available, virtually or inperson, to present to the City Council, Committees, or Commissions in support of the document’s approval.

6. The consultant shall also attend meetings or teleconferences, if requested, with employees and officials to refine and clarify components of the Broadband Master Plan.

We place a priority on timely performance of these services. Once the contract is awarded for this project, we expect the project to begin within two (2) weeks.

RFP Schedule
Schedule of Activities
The following RFP Schedule of Events represents the City of Shafter’s best estimate of the schedule that shall be followed. The City reserves the right, at its sole discretion, to adjust this schedule as it deems necessary. Notification of any adjustment to this schedule shall be provided to all Bidders in the form of an addendum.

Activity Date
Release of RFP Wednesday, February 22, 2023
Respondent Questions Submission Deadline Wednesday, March 8, 2023 City Responses Due Wednesday, March 15, 2023
Proposal Submission Deadline Friday, March 24, 2023
Optional Interviews with Respondent(s) March 27 – 31, 2023 Vendor Selection Date Monday, April 3, 2023
City Council Awards Agreement Tuesday, April 18, 2023
Agreement Execution / Notice to Proceed Monday, April 24, 2023 Question & Answer Details
Should the respondent have any questions for City staff before the respondent questions submission deadline, written submissions can be directed to the contacts listed in the following section. City responses will be sent back electronically, typically via email communications. Should the respondent wish to be contacted using a different modality, please specify that in the questions submission process.

14 Contacts
Any questions regarding this RFP should be directed to all of the following staff members:

RFP Coordinators
Chris Schultz [email protected]
Scott Wiggins [email protected]
Evaluation Criteria
The City intends to enter into an agreement with the respondent whose response is deemed most advantageous to the City. A written submittal to this RFP will be the primary basis on which the City will consider its award for the agreement. Therefore, respondents should be thorough, detailed, and as concise as possible when responding to each proposal item and assembling a response packet.

In the written proposal, respondents must include responses to all proposal items requested and the respondent’s concept must be aligned with the proposed system. Respondents will not be able to add to or modify their proposals after the proposal due date. The City may deem a respondent non-responsive if the respondent fails to provide all required documents and copies.

As proposals are received by the City, the City shall review and evaluate as necessary, including investigating the qualifications of all respondents, and the City may request clarifications of proposals directly from respondents.

All respondents that submit the information requested in this RFP will be evaluated based on professional experience, qualifications, and services to be performed. A showing of adequate financial resource is required but will not alone determine whether a respondent is competent. To receive favorable consideration, a respondent must present evidence that he/she has successfully performed similar work of comparable magnitude or submit other evidence satisfactory to the City that he/she or their associates are personally competent to manage the proposed undertaking and to carry it forward to a successful conclusion. Professional integrity and honesty of purpose shall be essential requirements. The City reserves the right to judge, appraise and reject all proposals, or to otherwise cancel the RFP process. The City reserves the right to request additional technical information or clarification of information submitted during the evaluation process. An interview of respondents may be scheduled to facilitate evaluation of each proposal.

In submitting the proposal, the respondent agrees the proposal will remain valid for 180 days after the deadline for submission of proposals and may be extended beyond that time by mutual agreement.

15 Scoring Criteria
Topic Possible
Points
Proposal Submission
- Completeness of the response
- Conformance with RFP guidelines and objectives
- Agreement and understanding of the project deliverables 20 Qualifications
- Expertise in the subject matter critical to this proposal - Recent relevant experience of team members or affiliates - Professional qualifications and education of team members - Capacity and impacts on the timeline of this project’s deliverables o Number of current projects listed
- Verifiable record of past successes in broadband master planning 30 Implementation Methodology
- Methodology for data collection, analysis, and reporting - Approaches for demands made from diverse stakeholders 30 Project Management Plan
- Scope of Work breakdown
- Project timeline and task schedule
20 TOTAL POINTS FOR WRITTEN PROPOSAL 100
Administrative Requirements and Clarifications
No Bidding Commitments
This RFP is being issued purely for information gathering purposes and does not constitute an agreement for procurement under applicable laws. Nothing in the RFP shall preclude the City from obtaining relevant information from other sources or through other processes. Nor shall the RFP in any way create an association, partnership, or joint venture among respondents and the City. The issuance of the RFP and any subsequent response by a respondent does not create a binding obligation on the part of the City to enter any agreement with the respondent for City owned assets, the development of a broadband fiber network, delivery of products and services, or otherwise.

Clarification of Proposals
Notwithstanding any other provision of this RFP, the City reserves the right to:
• Conduct discussions with any or all potential respondents for the purpose of clarification. • Cancel or amend this RFP or issue other requests for information or requests for proposals.

16 • Use any and all concepts presented in any response to obtain the most beneficial and effective path to achieving its desired goals for the project and the community. • Reject any or all proposals.

Response Costs
Respondents are responsible for all expenses they incur in preparing and submitting a response to this RFP or any follow-up discussions and negotiations with the City.

Errors and Omissions in the RFP
If the City becomes aware of an error or omission in the RFP, it will post addenda on the City’s network information website, Shafter Connect – www.shafterconnect.com. If it discovers an error or omission after the responses are submitted, it may in its discretion proceed or reissue the RFP.

Even if it elects to reissue the RFP, the City will not be liable for any costs or damages incurred by any respondent in preparing and submitting the original response.

Ownership and Confidentiality of Responses
The City will not pay for any information requested, and all responses submitted become the property of the City. Responses will not be returned and may be subject to disclosure pursuant to the federal Freedom of Information Act and/or state law or code. The City may receive information that may be confidential as part of a response. If a respondent believes that any portion of its response includes proprietary or other confidential information, it must clearly label the confidential information as such, and the respondent must state the basis for the claim to confidential treatment. Unless otherwise required by law, the City will treat such information as confidential and will not disclose it to a third party without prior notification and authorization.

Development of the Final Agreement
Agreement Execution
After the evaluation process is completed and a successful respondent is approved by the City Council, a maximum 14-day limit will be established for the Agreement to be finalized and executed through negotiations with the successful respondent. If the Agreement is not executed by the selected respondent within the time limit, the City reserves the right to extend the limit or to enter into an Agreement with another respondent.

The City reserves the right to revise the Agreement to a) reflect the successful respondent’s financial proposals, and b) as necessary to achieve Shafter’s best interest as determined by the City in itssole discretion.

17 General Provisions
The City hereby extends an invitation to submit a proposal, in accordance with this Request for Proposal (RFP). Furthermore, the City makes no representation that any agreement will be awarded to any firm responding to this request. There are no expressed or implied obligations for the City to reimburse responding firms for any expense incurred in preparing a proposal in response to this request. All information submitted to the City shall become property of the City.

Business Tax Certificate
The successful respondent agrees to at all times during the performance of the agreement, obtain and maintain a City of Shafter Business Tax Certificate. The purchase of said Certificate must be made prior to the purchase of product or rendering services and a copy said Certificate must be forwarded to the Administrative Services Department.

Basic Eligibility
The successful respondent must be licensed to do business in the State of California. In addition, the successful respondent must not be debarred, suspended, or otherwise ineligible to enter an agreement with the City.

Addenda
If it becomes necessary to clarify or revise this RFP, such clarification or revision will be by Addenda. Any Addendum will become part of this RFP. All addenda will be issued via the City’s network information website, Shafter Connect – www.shafterconnect.com.

There are no designated dates for release of addenda. Therefore, interested respondent should check the Shafter Connect web page daily. It is the respondent’s responsibility to check the City’s website or contact the Project Coordinators identified in this RFP.

17236.00095\40086860.1
1 CITY OF SHAFTER

PROFESSIONAL SERVICES AGREEMENT
This Agreement is made and entered into as of ________________, 2023 by and between the City of Shafter, a municipal corporation organized and operating under the laws of the State of California with its principal place of business at 336 Pacific Avenue, Shafter, California 93263 (“City”), and [***INSERT NAME***], a [***INSERT TYPE OF ENTITY - CORPORATION, PARTNERSHIP, SOLE PROPRIETORSHIP OR OTHER LEGAL ENTITY***] with its principal place of business at [***INSERT ADDRESS***] (hereinafter referred to as “Consultant”). City and Consultant are sometimes individually referred to as “Party” and collectively as “Parties” in this Agreement.

RECITALS
A. City is a public agency of the State of California and is in need of professional services for the following project:

Development of a Broadband Master Plan and creation of a Request for Proposal (RFP) for Design Engineering Support Services (hereinafter referred to as “the Project”).

B. Consultant is duly licensed and has the necessary qualifications to provide such services.

C. The Parties desire by this Agreement to establish the terms for City to retain Consultant to provide the services described herein.

AGREEMENT
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

1. Services.

Consultant shall provide the City with the services described in the Scope of Services attached hereto as Exhibit “A”. [Alternatively, Scope of Services can be included here and all subsequent exhibits renumbered accordingly.]

2. Compensation.
a. Subject to paragraph 2(b) below, the City shall pay for such services in accordance with the Schedule of Charges set forth in Exhibit “B”. [Alternatively, Schedule of Charges may be included here and all subsequent exhibits renumbered accordingly.] b. In no event shall the total amount paid for services rendered by Consultant under this Agreement exceed the sum of $ [Insert amount of compensation]. This amount is to cover all printing and related costs, and the City will not pay any additional fees for printing expenses. Periodic payments shall be made within 30 days of receipt of an invoice which includes a detailed description of the work performed. Payments to Consultant for work performed will be made on a monthly billing basis.

3. Additional Work.

17236.00095\40086860.1
2 If changes in the work seem merited by Consultant or the City, and informal consultations with the other party indicate that a change is warranted, it shall be processed in the following manner: a letter outlining the changes shall be forwarded to the City by Consultant with a statement of estimated changes in fee or time schedule. An amendment to this Agreement shall be prepared by the City and executed by both Parties before performance of such services, or the City will not be required to pay for the changes in the scope of work. Such amendment shall not render ineffective or invalidate unaffected portions of this Agreement.

4. Maintenance of Records.

Books, documents, papers, accounting records, and other evidence pertaining to costs incurred shall be maintained by Consultant and made available at all reasonable times during the contract period and for four (4) years from the date of final payment under the contract for inspection by City.

5. Term
The term of this Agreement shall be from [Insert start date] to [Insert end date], unless earlier terminated as provided herein. The Parties may, by mutual, written consent, extend the term of this Agreement if necessary to complete the Project. Consultant shall perform its services in a prompt and timely manner within the term of this Agreement and shall commence performance upon receipt of written notice from the City to proceed (“Notice to Proceed”). [If the City has specific milestones or timelines for performance, please input those requirements in the “Activity Schedule” attached as Exhibit C, otherwise delete Exhibit C.] The Notice to Proceed shall set forth the date of commencement of work.

6. Delays in Performance.
a. Neither City nor Consultant shall be considered in default of this Agreement for delays in performance caused by circumstances beyond the reasonable control of the nonperforming party. For purposes of this Agreement, such circumstances include but are not limited to, abnormal weather conditions; floods; earthquakes; fire; epidemics; war; riots and other civil disturbances; strikes, lockouts, work slowdowns, and other labor disturbances; sabotage or judicial restraint.
b. Should such circumstances occur, the non-performing party shall, within a reasonable time of being prevented from performing, give written notice to the other party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement.

7. Compliance with Law.
a. Consultant shall comply with all applicable laws, ordinances, codes and regulations of the federal, state and local government, including Cal/OSHA requirements. b. If required, Consultant shall assist the City, as requested, in obtaining and maintaining all permits required of Consultant by federal, state and local regulatory agencies.

17236.00095\40086860.1
3 c. If applicable, Consultant is responsible for all costs of clean up and/ or removal of hazardous and toxic substances spilled as a result of his or her services or operations performed under this Agreement.

8. Standard of Care
Consultant’s services will be performed in accordance with generally accepted professional practices and principles and in a manner consistent with the level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions.

9. Assignment and Subconsultant
Consultant shall not assign, sublet, or transfer this Agreement or any rights under or interest in this Agreement without the written consent of the City, which may be withheld for any reason. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. Nothing contained herein shall prevent Consultant from employing independent associates, and subconsultants as Consultant may deem appropriate to assist in the performance of services hereunder.

10. Independent Contractor
Consultant is retained as an independent contractor and is not an employee of City. No employee or agent of Consultant shall become an employee of City. The work to be performed shall be in accordance with the work described in this Agreement, subject to such directions and amendments from City as herein provided.

11. Insurance. Consultant shall not commence work for the City until it has provided evidence satisfactory to the City it has secured all insurance required under this section. In addition, Consultant shall not allow any subcontractor to commence work on any subcontract until it has secured all insurance required under this section. a. Commercial General Liability
(i) The Consultant shall take out and maintain, during the performance of all work under this Agreement, in amounts not less than specified herein, Commercial General Liability Insurance, in a form and with insurance companies acceptable to the City. (ii) Coverage for Commercial General Liability insurance shall be at least as broad as the following:
(1) Insurance Services Office Commercial General Liability coverage (Occurrence Form CG 00 01) or exact equivalent. (iii) Commercial General Liability Insurance must include coverage for the following:
(1) Bodily Injury and Property Damage
(2) Personal Injury/Advertising Injury
(3) Premises/Operations Liability
(4) Products/Completed Operations Liability

17236.00095\40086860.1
4 (5) Aggregate Limits that Apply per Project
(6) Explosion, Collapse and Underground (UCX) exclusion deleted
(7) Contractual Liability with respect to this Agreement (8) Property Damage
(9) Independent Consultants Coverage
(iv) The policy shall contain no endorsements or provisions limiting coverage for (1) contractual liability; (2) cross liability exclusion for claims or suits by one insured against another; (3) products/completed operations liability; or (4) contain any other exclusion contrary to the Agreement.
(v) The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status using ISO endorsement forms CG 20 10 10 01 and 20 37 10 01, or endorsements providing the exact same coverage. (vi) The general liability program may utilize either deductibles or provide coverage excess of a self-insured retention, subject to written approval by the City, and provided that such deductibles shall not apply to the City as an additional insured. b. Automobile Liability
(i) At all times during the performance of the work under this Agreement, the Consultant shall maintain Automobile Liability Insurance for bodily injury and property damage including coverage for owned, non-owned and hired vehicles, in a form and with insurance companies acceptable to the City.
(ii) Coverage for automobile liability insurance shall be at least as broad as Insurance Services Office Form Number CA 00 01 covering automobile liability (Coverage Symbol 1, any auto).
(iii) The policy shall give City, its officials, officers, employees, agents and City designated volunteers additional insured status. (iv) Subject to written approval by the City, the automobile liability program may utilize deductibles, provided that such deductibles shall not apply to the City as an additional insured, but not a self-insured retention.
c. Workers’ Compensation/Employer’s Liability
(i) Consultant certifies that he/she is aware of the provisions of Section 3700 of the California Labor Code which requires every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and he/she will comply with such provisions before commencing work under this Agreement.
(ii) To the extent Consultant has employees at any time during the term of this Agreement, at all times during the performance of the work under this Agreement, the Consultant shall maintain full compensation insurance for all persons employed directly by him/her to carry out the work contemplated under this Agreement, all in accordance with the “Workers’ Compensation and Insurance Act,” Division IV of the Labor Code of the State of

17236.00095\40086860.1
5 California and any acts amendatory thereof, and Employer’s Liability Coverage in amounts indicated herein. Consultant shall require all subconsultants to obtain and maintain, for the period required by this Agreement, workers’ compensation coverage of the same type and limits as specified in this section.
d. Professional Liability (Errors and Omissions)
At all times during the performance of the work under this Agreement the Consultant shall maintain professional liability or Errors and Omissions insurance appropriate to its profession, in a form and with insurance companies acceptable to the City and in an amount indicated herein.

This insurance shall be endorsed to include contractual liability applicable to this Agreement and shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Consultant. “Covered Professional Services” as designated in the policy must specifically include work performed under this Agreement. The policy must “pay on behalf of” the insured and must include a provision establishing the insurer's duty to defend. e. Minimum Policy Limits Required
(i) The following insurance limits are required for the Agreement:

Combined Single Limit
Commercial General Liability $1,000,000 per occurrence/ $2,000,000 aggregate for bodily injury, personal injury, and property
damage
Automobile Liability $1,000,000 combined single limit
Employer’s Liability $1,000,000 per accident or disease Professional Liability $1,000,000 per claim and aggregate (errors and omissions)
(ii) Defense costs shall be payable in addition to the limits. (iii) Requirements of specific coverage or limits contained in this section are not intended as a limitation on coverage, limits, or other requirement, or a waiver of any coverage normally provided by any insurance. Any available coverage shall be provided to the parties required to be named as Additional Insured pursuant to this Agreement. f. Evidence Required
Prior to execution of the Agreement, the Consultant shall file with the City evidence of insurance from an insurer or insurers certifying to the coverage of all insurance required herein. Such evidence shall include original copies of the ISO CG 00 01 (or insurer’s equivalent) signed by the insurer’s representative and Certificate of Insurance (Acord Form 25-S or equivalent), together with required endorsements. All evidence of insurance shall be signed by a properly authorized officer, agent, or qualified representative of the insurer and shall certify the names of the insured, any additional insureds, where appropriate, the type and amount of the insurance, the location and operations to which the insurance applies, and the expiration date of such insurance.

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6 g. Policy Provisions Required
(i) Consultant shall provide the City at least thirty (30) days prior written notice of cancellation of any policy required by this Agreement, except that the Consultant shall provide at least ten (10) days prior written notice of cancellation of any such policy due to non-payment of premium. If any of the required coverage is cancelled or expires during the term of this Agreement, the Consultant shall deliver renewal certificate(s) including the General Liability Additional Insured Endorsement to the City at least ten (10) days prior to the effective date of cancellation or expiration.
(ii) The Commercial General Liability Policy and Automobile Policy shall each contain a provision stating that Consultant’s policy is primary insurance and that any insurance, self-insurance or other coverage maintained by the City or any named insureds shall not be called upon to contribute to any loss.
(iii) The retroactive date (if any) of each policy is to be no later than the effective date of this Agreement. Consultant shall maintain such coverage continuously for a period of at least three years after the completion of the work under this Agreement. Consultant shall purchase a one (1) year extended reporting period A) if the retroactive date is advanced past the effective date of this Agreement; B) if the policy is cancelled or not renewed; or C) if the policy is replaced by another claims-made policy with a retroactive date subsequent to the effective date of this Agreement.
(iv) All required insurance coverages, except for the professional liability coverage, shall contain or be endorsed to provide a waiver of subrogation in favor of the City, its officials, officers, employees, agents, and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
(v) The limits set forth herein shall apply separately to each insured against whom claims are made or suits are brought, except with respect to the limits of liability.

Further the limits set forth herein shall not be construed to relieve the Consultant from liability in excess of such coverage, nor shall it limit the Consultant’s indemnification obligations to the City and shall not preclude the City from taking such other actions available to the City under other provisions of the Agreement or law.
h. Qualifying Insurers
(i) All policies required shall be issued by acceptable insurance companies, as determined by the City, which satisfy the following minimum requirements:
(1) Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and admitted to transact in the business of insurance in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
i. Additional Insurance Provisions

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7 (i) The foregoing requirements as to the types and limits of insurance coverage to be maintained by Consultant, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the Consultant pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
(ii) If at any time during the life of the Agreement, any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary, and any premium paid by City will be promptly reimbursed by Consultant or City will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, City may cancel this Agreement.
(iii) The City may require the Consultant to provide complete copies of all insurance policies in effect for the duration of the Project. (iv) Neither the City nor any of its officials, officers, employees, agents or volunteers shall be personally responsible for any liability arising under or by virtue of this Agreement.
j. Subconsultant Insurance Requirements. Consultant shall not allow any subcontractors or subconsultants to commence work on any subcontract until they have provided evidence satisfactory to the City that they have secured all insurance required under this section.

Policies of commercial general liability insurance provided by such subcontractors or subconsultants shall be endorsed to name the City as an additional insured using ISO form CG 20 38 04 13 or an endorsement providing the exact same coverage. If requested by Consultant, City may approve different scopes or minimum limits of insurance for particular subcontractors or subconsultants.

12. Indemnification.
a. To the fullest extent permitted by law, Consultant shall defend (with counsel of City’s choosing), indemnify and hold the City, its officials, officers, employees, volunteers, and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, in any manner arising out of, pertaining to, or incident to any acts, errors or omissions, or willful misconduct of Consultant, its officials, officers, employees, subcontractors, consultants or agents in connection with the performance of the Consultant’s services, the Project or this Agreement, including without limitation the payment of all damages, expert witness fees and attorney’s fees and other related costs and expenses. Consultant's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by Consultant, the City, its officials, officers, employees, agents, or volunteers.
b. To the extent required by Civil Code section 2782.8, which is fully incorporated herein, Consultant’s obligations under the above indemnity shall be limited to claims that arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, but shall not otherwise be reduced. If Consultant’s obligations to defend, indemnify, and/or hold harmless arise out of Consultant’s performance of “design professional services” (as that term is defined under Civil Code section 2782.8), then upon Consultant obtaining a final adjudication that liability under a claim is caused by the comparative active negligence or willful misconduct of the City, Consultant’s obligations shall be reduced in proportion to the established

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8 comparative liability of the City and shall not exceed the Consultant’s proportionate percentage of fault.

13. California Labor Code Requirements.
a. Consultant is aware of the requirements of California Labor Code Sections 1720 et seq. and 1770 et seq., which require the payment of prevailing wage rates and the performance of other requirements on certain “public works” and “maintenance” projects (“Prevailing Wage Laws”). If the services are being performed as part of an applicable “public works” or “maintenance” project, as defined by the Prevailing Wage Laws, and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, Consultant agrees to fully comply with such Prevailing Wage Laws. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claims, liabilities, costs, penalties or interest arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. It shall be mandatory upon the Consultant and all subconsultants to comply with all California Labor Code provisions, which include but are not limited to prevailing wages (Labor Code Sections 1771, 1774 and 1775), employment of apprentices (Labor Code Section 1777.5), certified payroll records (Labor Code Sections 1771.4 and 1776), hours of labor (Labor Code Sections 1813 and 1815) and debarment of contractors and subcontractors (Labor Code Section 1777.1). b. If the services are being performed as part of an applicable “public works” or “maintenance” project and if the total compensation is $15,000 or more for maintenance or $25,000 or more for construction, alteration, demolition, installation, or repair, then pursuant to Labor Code Sections 1725.5 and 1771.1, the Consultant and all subconsultants performing such services must be registered with the Department of Industrial Relations. Consultant shall maintain registration for the duration of the Project and require the same of any subconsultants, as applicable. This Project may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. c. This Agreement may also be subject to compliance monitoring and enforcement by the Department of Industrial Relations. It shall be Consultant’s sole responsibility to comply with all applicable registration and labor compliance requirements. Any stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor that affect Consultant’s performance of services, including any delay, shall be Consultant’s sole responsibility. Any delay arising out of or resulting from such stop orders shall be considered Consultant caused delay and shall not be compensable by the City. Consultant shall defend, indemnify and hold the City, its officials, officers, employees and agents free and harmless from any claim or liability arising out of stop orders issued by the Department of Industrial Relations against Consultant or any subcontractor.

14. Verification of Employment Eligibility.

By executing this Agreement, Consultant verifies that it fully complies with all requirements and restrictions of state and federal law respecting the employment of undocumented aliens, including, but not limited to, the Immigration Reform and Control Act of 1986, as may be amended from time to time, and shall require all subconsultants and sub-subconsultants to comply with the same.

15. Laws and Venue.

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9 This Agreement shall be interpreted in accordance with the laws of the State of California.

If any action is brought to interpret or enforce any term of this Agreement, the action shall be brought in a state or federal court situated in the County of Kern, State of California. 16 Termination or Abandonment
a. City has the right to terminate or abandon any portion or all of the work under this Agreement by giving ten (10) calendar days written notice to Consultant. In such event, City shall be immediately given title and possession to all original field notes, drawings and specifications, written reports and other documents produced or developed for that portion of the work completed and/or being abandoned. City shall pay Consultant the reasonable value of services rendered for any portion of the work completed prior to termination. If said termination occurs prior to completion of any task for the Project for which a payment request has not been received, the charge for services performed during such task shall be the reasonable value of such services, based on an amount mutually agreed to by City and Consultant of the portion of such task completed but not paid prior to said termination. City shall not be liable for any costs other than the charges or portions thereof which are specified herein. Consultant shall not be entitled to payment for unperformed services, and shall not be entitled to damages or compensation for termination of work.
b. Consultant may terminate its obligation to provide further services under this Agreement upon thirty (30) calendar days’ written notice to City only in the event of substantial failure by City to perform in accordance with the terms of this Agreement through no fault of Consultant.
17 Documents. Except as otherwise provided in “Termination or Abandonment,” above, all original field notes, written reports, Drawings and Specifications and other documents, produced or developed for the Project shall, upon payment in full for the services described in this Agreement, be furnished to and become the property of the City.

18. Organization
Consultant shall assign _________________________ as Project Manager. The Project Manager shall not be removed from the Project or reassigned without the prior written consent of the City.

19. Limitation of Agreement.

This Agreement is limited to and includes only the work included in the Project described above.

20. Notice
Any notice or instrument required to be given or delivered by this Agreement may be given or delivered by depositing the same in any United States Post Office, certified mail, return receipt requested, postage prepaid, addressed to:

CITY:

City of Shafter
CONSULTANT:
[***INSERT NAME, ADDRESS & CONTACT
PERSON***]