ACTION:
____________________________
Clerk/Secretary
Department: Engineering Item No: C4
Prepared by:
Gabe Grewe, Capital Projects Manager
Erin Adams, Management Analyst Meeting Date: October 24, 2023 Approved by:
Greg Mayer, Acting Director of Engineering
John Conley, City Manager Agenda Location: Consent Calendar SUBJECT: CIP NOS. 8339 & 8358 FOOTHILL/OAK AND BOBIER/CALLE JULES ROUNDABOUTS PROJECT – DESIGN/BUILD AGREEMENT AWARD
RECOMMENDATION: Adopt City Council Resolution No. 2023- , approving an agreement with Dick Miller, Inc. for design/build services for the Foothill/Oak and Bobier/Calle Jules Roundabouts Project (CIP Nos. 8339 & 8358).
CORRELATION TO CITY COUNCIL GOALS: Traffic: Continue to improve flow of traffic for all forms of travel, reduce congestion, and improve our roads and sidewalks.
PRIOR ACTION: On June 13, 2023, adopted City Council Resolution 2023-108, amending the Capital Project Budget for Fiscal Years 2022/23 and 2023/24 (Vote: 3-2, Franklin and Green Opposed).
On April 6, 2023, City Council held a Transportation Mobility Workshop and accepted the roundabout at E.
Bobier and Calle Jules as presented and staff’s recommendations on speed hump edits (Vote: 4-1, Franklin Opposed).
On June 28, 2022, adopted City Council Resolution No. 2022-108, approving a Six-Year Capital Improvement Program and FYs 2022/23 and 2023/24 Capital Project Budget and authorizing appropriations for Fiscal Years 2022/23 and 2023/24 Capital Projects (Vote: 4-0, Ritter absent (Ritter experienced technical difficulties)).
STATEMENT ON THE SUBJECT: Capital Improvement Program (CIP) Project Nos. 8339 and 8358, Foothill/Oak and Bobier/Calle Jules Roundabouts Project, will design and construct roundabouts at the intersection of Foothill Drive and Oak Drive and at the intersection of Bobier Drive and Calle Jules. These intersection improvements are currently funded in the CIP budget and will provide traffic calming and high visibility pedestrian crosswalks at each roundabout.
Award of Design/Build Agreement. On June 29, 2023, staff issued a request for proposals (RFP) for design/build services for the Foothill/Oak and Bobier/Calle Jules Roundabouts Project. The RFP was based on best value, with price to be negotiated with the selected firm. The RFP was advertised on the City of Vista’s website and the City’s electronic procurement portal, OpenGov.com. The following two firms responded to the RFP:
AGENDA
REPORT
CITY COUNCIL
COMMUNITY DEVELOPMENT COMMISSION
SUCCESSOR AGENCY
BUENA SANITATION DISTRICT
JOINT POWERS FINANCING AUTHORITY
Approved above recommendation, adopted City Council Resolution No. 2023-182. Vote: 5-0.
MEETING DATE: October 24, 2023 PAGE 2
SUBJECT: CIP NOS. 8339 & 8358 FOOTHILL/OAK AND BOBIER/CALLE JULES ROUNDABOUTS PROJECT – DESIGN/BUILD AGREEMENT AWARD
Firm Office Location
Blue Pacific Engineering Construction, Inc. San Diego, CA Dick Miller, Inc. San Marcos, CA
The proposals were evaluated by staff and ranked based upon predetermined criteria including overall experience and technical competence, experience with projects of similar nature, rates and fees, proposed methods and plan to accomplish the work, and overall proposal. Based on staff’s evaluation of the RFP responses, staff recommends the selection of Dick Miller, Inc. to design and construct the Foothill/Oak and Bobier/Calle Jules Roundabouts Project.
The agreement with Dick Miller, Inc. includes design, and pre-construction costs in the amount of $306,752. Once design is complete, a Guaranteed Maximum Price and construction schedule will be established for construction, and an Amendment for construction will be prepared for the City Council’s review.
FISCAL IMPACT: The cost for Dick Miller, Inc. to provide the Foothill/Oak and Bobier/Calle Jules Roundabouts Project design, and pre-construction services is $306,752.00. Funding is budgeted and available in the Fiscal Year 2023/24 Capital Improvement Budget for Capital Improvement Project (CIP) Nos. 8339 and 8358 (source appropriation account nos. 1106595.578999.8339 and 1106580.578999.8358).
EXHIBITS:
1.City Council Resolution No. 2023- , approving an agreement with Dick Miller, Inc. for design/build services for Foothill/Oak and Bobier/Calle Jules Roundabouts Project (CIP Nos. 8339 & 8358)
2.Agreement with Dick Miller, Inc. for design/build services for the Foothill/Oak and Bobier/Calle Jules Roundabouts Project (CIP Nos. 8339 & 8358)
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00029213 7
RESOLUTION NO. 2023-
A RESOLUTION OF THE CITY COUNCIL OF THE CHARTERED CITY OF
VISTA, CALIFORNIA, APPROVING AN AGREEMENT WITH DICK MILLER, INC. FOR DESIGN/BUILD SERVICES FOR THE FOOTHILL/OAK AND BOBIER/CALLE JULES ROUNDABOUTS PROJECT (CIP NOS.8339 & 8358) The City Council of the City of Vista does resolve as follows:
1. Findings. The City Council hereby finds and declares the following:
A. Pursuant to section 3.08.075 of the Vista Municipal Code, a request for proposals (RFP) was issued on June 29, 2023 for design/build services for the Foothill/Oak and Bobier/Calle Jules Roundabouts Project (CIP Nos. 8339 & 8358).
B. Two proposals were submitted in response to the RFP and were evaluated based upon the predetermined criteria in the RFP.
C. Staff recommends the selection of Dick Miller, Inc. as the contractor to provide design/build services for the Foothill/Oak and Bobier/Calle Jules Roundabouts Project (CIP Nos. 8339 & 8358).
2. Action.
A. The agreement between the City of Vista and Dick Miller, Inc. for design/build services for the Foothill/Oak and Bobier/Calle Jules Roundabouts Project is approved, and the Mayor is authorized to execute the agreement.
3. Adoption. PASSED AND ADOPTED at a meeting of the City Council of the City of Vista held on October 24, 2023, by the following vote:
AYES:
NOES:
ABSTAIN:
APPROVED AS TO FORM:
WALTER CHUNG, CITY ATTORNEY
By:
APPROVED
Walter C. Chung
20231012163731
JOHN B. FRANKLIN, MAYOR
ATTEST:
KATHY VALDEZ, CITY CLERK
By:
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EXHIBIT 1
00111888 1{
DESIGN / BUILD SERVICES FOR THE
FOOTHILL/OAK AND BOBIER/CALLE JULES ROUNDABOUTS PROJECT CIP NO. 8339 & 8358
THIS AGREEMENT is made and entered into as of ________________ (Contract Date) by and between the CITY OF VISTA (“City”), a chartered municipal corporation, and Dick Miller, Inc., a California corporation (“Design Builder or DB”). City and DB are sometimes individually referred to as “Party” and collectively as “Parties”.
RECITALS
1.On June 29th, 2023, a Request for Proposal (RFP) (Exhibit 3) was issued for design/build services for the Foothill/Oak and Bobier/Calle Jules Roundabouts Project – CIP 8339 & 8358; and
2.Two firms submitted proposals and based upon the review of each proposal and interviews with the top firms, Design Builder was selected as the respondent who best met the evaluation criteria specified in the RFP including experience and technical competence, schedule, rates, and financial resources and with whom City could negotiate an agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein:
THE PARTIES AGREE:
Section 1: General Scope of Work to Be Performed by DB
1.1 In accordance with the terms set forth in this Agreement and the Design Build Proposal for the Foothill/Oak and Bobier/Calle Jules Roundabouts Project (Exhibit 1 attached hereto and incorporated herein), Foothill/Oak and Bobier/Calle Jules Roundabouts Project – CIP 8339 & 8358 shall include, but not be limited to all components outlined and described in Exhibit 1.
1.2 The services provided by the DB shall include, but not be limited to, all services outlined and described in this agreement and the design, and construction services within Exhibit 1.
1.3 The DB shall:
1.3.1 Perform design and pre-construction services (Phase I) on a time and materials basis for an amount not-to-exceed $306,752.00, as specified in DB’s Project Cost Estimate. At 90% complete construction documents the DB shall propose a Guaranteed Maximum Price (GMP) which will include, but not be limited to, the cost for all labor, equipment, and material to design and construct Phase II of the Foothill/Oak and Bobier/Calle Jules Roundabouts Project – CIP 8339 & 8358 in accordance with all applicable rules, regulations, and laws. If the Parties agree to DB’s proposed GMP, or successfully negotiate an alternative GMP amount, the Parties shall enter into an amendment to this Agreement to fund and undertake Phase II of the Project. Under the amendment, the DB fee shall be 10% of the cost of construction defined as the total sum of trade contracts (subcontractors), materials (purchase orders), equipment, self- performed work and general conditions. Any costs incurred by DB in excess of the established GMP shall be the sole responsibility of the DB, unless a Change Order is approved by the City. Any savings resulting in the project being completed for less than the amount of the GMP shall belong to the City.
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EXHIBIT 2
Design / Build Services Agreement
Foothill/Oak and Bobier/Calle Jules Roundabouts Project – CIP 8339 & 8358
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1.3.2 Provide the proposed GMP to City by April 22nd, 2024, and complete the Phase I design services by July 1st, 2024, including City approval of 90% construction drawing package, in accordance with the schedule set forth in Exhibit 1.
Section 2: General Obligations of City
2.1 City shall be obligated as follows:
2.1.1 Designate a representative (or representatives) who is/are authorized to act on behalf of City with respect to the Project, except as to those decisions that require authorization by the Vista City Manager or Vista City Council.
2.1.2 Make decisions with reasonable promptness to avoid delay in the orderly progress of DB’s services per the schedule in Exhibit 1.
2.1.3 At the request of DB, City will use its best efforts to provide DB with any available information about the Project Site (Exhibit 4) geotechnical soil conditions; it will, however, be the responsibility of DB to take all reasonable steps to verify all such information as it deems necessary to perform its services under this Agreement. City does not warranty to DB the accuracy or completeness of any such information.
2.1.4 Cooperate with DB in identifying, processing and securing required permits and licenses in a timely fashion; however, this duty to cooperate does not relieve DB of its primary obligations to identify, apply for and secure all necessary permits and licenses in a timely manner.
2.1.5 Make payments to DB in the amounts and in accordance with the terms set forth below.
2.1.6 Issue Certificate of Substantial Completion when City reasonably determines the Project has achieved Substantial Completion as defined below in Section 16.1.
2.1.7 Issue a Notice of Acceptance when City reasonably determines the Project has achieved Final Completion as defined in Section 16.2.
2.2 City Review Process. City shall review the Conceptual, 60%, 90% and 100% Construction Drawings (CD’s) including project specifications which shall allow construction of Project in conformity with the Program Document for the Project.
2.2.1 For each DB submission, City shall have ten (10) working days to review, approve, conditionally approve or deny said set of documents.
Section 3: General Obligations of DB
3.1 DB shall be obligated as follows:
3.1.1 Provide all supervision, labor, equipment, technical expertise, safety equipment, and service operations to complete the Project.
3.1.2 At all times in performing its services, design and deliver the best possible Project consistent with the standard of care that satisfies the time, monetary, quality and design parameters set forth in this Agreement.
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3.1.3 Design and construct the Project on time, consistent with timeframes set forth in the Project Schedule (Exhibit 1), and in such a manner that the GMP or Contract Time of the Project shall not be exceeded, except by written Change Order as provided in Section 14. DB shall provide a master accounting system and matrix using software acceptable to City that will be updated, expanded and provided to the City monthly as the Project develops.
3.1.4 Perform all services as expeditiously as is consistent with reasonable skill and care and shall complete the services within each and all of the time periods set forth in the Project Schedule (Exhibit 1).
3.1.5 Any subcontractors performing Project construction must be appropriately licensed by the California Contractors State License Board or other required agency.
3.1.6 Perform or subcontract all design services for the Project utilizing qualified, licensed and sufficiently experienced engineers, and other professionals (“Design Consultants”) as identified in Exhibit 1. DB shall not be permitted to substitute any Design Consultant unless authorized by City. The fact that the City approves the subcontracting of any such services will in no way relieve the DB of any of its obligations or responsibilities under this RFP or this Agreement.
3.1.7 INTENTIONALLY LEFT BLANK
3.1.8 Ensure that DBT personnel conduct themselves in a professional manner at all times. Personnel shall be courteous, neat in appearance, and wear visible identification including all personal protective equipment. All equipment must display their company identification, including any subcontractors.
3.1.9 Comply with the California Fair Employment and Housing Act and all other State, Federal and local laws including, but not limited to, those prohibiting discrimination, on account of race, color, national origin, religion, age, sex or handicap.
3.1.10 Take all reasonable steps during the course of the Project so as not to interfere with the ongoing operation of the adjacent residences, businesses and facilities, including but not limited to the following:
3.1.10.1 Not interfere with pedestrian and vehicular access.
3.1.10.2 Take all reasonable steps during the course of construction to control dust in accordance with the provisions in the 2012 Edition of the Standard Specifications for Public Works Construction and most recent Supplement (“Greenbook”). Ensure that all work conforms to the City of Vista noise ordinance unless authorized by the designated City representative. The DB shall ensure all DBT personnel comply with all relevant OSHA, Cal/OSHA, and labor and industrial work safety regulations at all times they are on the Project Site. The DB is responsible for implementing confined space entry procedures in accordance with all applicable laws and regulations.
3.1.11 Study all applicable laws, codes, ordinances, rules, orders, regulations, and statutes affecting the Project, including but not limited to, zoning, environmental, building, fire and safety codes and coverage, and lien laws, and comply with them 10/24/2023 C4 6 of 130
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in performance of its services. DB shall ensure that the Project design conforms to all applicable federal, state and local laws, statutes, ordinances, rules, regulations, orders or other legal requirements, (collectively “Governmental Requirements”) existing as of the date of this Agreement. However, the City recognizes that Governmental Requirements and their interpretations by governmental officials (“Code Authority”) are often subject to change at any time, even after issuance of a notice to construct. If, after the date of this Agreement, modifications to the Project are required because of a change in Governmental Requirements or their interpretation by a Code Authority which had not previously been given, or which if given, was different than a prior interpretation of a Code Authority, DB shall make the required modifications to comply with the same. However, in the event of such an occurrence the compensation to DB and the associated design and pre- construction schedule may be subject to an adjustment. Nothing contained in this paragraph shall relieve DB of its obligations to modify the Project at its own expense where DB has failed to design the Project in compliance with Governmental Requirements applicable as of the date of this Agreement.
3.1.12 Obtain all permits necessary to complete the Project. City shall reimburse cost of permits, except that DB shall be responsible for obtaining and paying for all permits normally obtained by the trades or subcontractors.
3.1.13 Adhere to the provisions of all permits and rules and regulations, including but not limited to those from with the 2012 Edition of the Standard Specifications for Public Works Construction and most recent Supplement (“Greenbook”) and the City of Vista.
3.1.14 Comply with all licensing requirements of the State of California and the City of Vista.
3.1.15 Use reasonable care to avoid damaging existing improvements, buildings, equipment and vegetation adjacent to the Project Site. If DB causes damage to any of this property, DB shall replace or repair said property at no expense to City and shall not be a basis for seeking an adjustment to the GMP or Contract Time.
DB agrees to indemnify City for any and all fines, penalties, liabilities, cost imposed upon City, its officers, employees and agents as a result of this Project.
3.1.16 Perform Quality Control (“QC”). Review the drawings and specifications in order to identify and correct errors and omissions and reduce the quantity of Change Orders during the course of construction. Include a detailed review of drawings and designs relative to applicable laws and standards.
3.1.17 Be fully responsible for damages, and liabilities resulting from errors or omissions below the standard of care defined in Section 3.1.19 by DB or DB’s agents, employees, design consultants and contractors; such costs, damages and liabilities shall not be chargeable to the City nor shall they be a basis for seeking an adjustment in the GMP or Contract Time.
3.1.18 DB agrees to fully assume all risks, and costs associated with such risks, in performing the services and meeting the obligations under this Agreement. DB shall verify actual site conditions, topography, and facility conditions.
3.1.18.1 Unanticipated subsurface site conditions.
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3.1.18.1.1 City assumes risks for unanticipated subsurface site conditions provided DB notifies City in writing within five (5) calendar days of discovery if DB believes it has
uncovered or revealed a condition which:
3.1.18.1.1.1 Differs materially form that indicated
in the geotechnical and geological reports.
3.1.18.1.1.2 Is of an unusual nature and differs
materially from conditions ordinarily
encountered and generally recognized as
inherent in the work required by this RFP and
the Design/Build Contract.
3.1.18.1.1.3 Upon receipt of a written notice, City
shall promptly investigate and if it determines
the conditions do materially differ, requiring a
change in the Work, City shall commence the
processing of a Change Order pursuant to
Section 14 of the Design/Build Contract. If
City determines there is no bona fide Work
scope change or is a minor change, which
does not impact GMP or Contract Time, City
shall notify DB within ten (10) calendar days.
3.1.18.1.1.4 DB shall not be entitled to an
adjustment in the GMP or Contract Time if DB
knew or should have known of the existence
of such conditions at the time DB submitted
and agreed to GMP or Contract Time; or the
existence of such condition could reasonably
have been discovered as a result of DB’s
obligations regarding geotechnical and
geological investigations and reports as
described in the RFP.
3.1.19 DB shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. Compliance with this section by DB shall not in any way excuse or limit DB’s obligations to fully comply with all other terms in this Agreement.
3.1.19.1 Contractor’s License. DB warrants that at least one member of the DB team shall be licensed by the California Contractor’s State License Board as a Class A General Engineering Contractor. DB is to provide a list of the responsible people within their organizations performing services, which shall include their qualifications and their function, for approval by the City prior to start of services. City and DB shall establish “key personnel” who shall remain on the Project until Final Completion. If any such “key personnel” leave the employment of DB, City shall have the right to approve the replacement personnel assigned to this Project. DB shall 10/24/2023 C4 8 of 130
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comply with all licensing requirements of the State of California and City of Vista.
3.1.19.2 Project Manager and Project Design Engineer. Throughout all phases of the Project hereunder, the individual project manager, and project design engineer shall be as reflected in Exhibit 1. So long as the Individual Project Manager and Project Design Engineer remain in the employ of the General Contractor and/or Engineer, such persons shall not be changed or substituted from the Project, or cease to be fully committed to the Project as deemed necessary by the City in its reasonable discretion, without the prior written consent or instruction of the City.
3.1.19.3 City Right to Remove Project Manager, and Project Design Engineer. Notwithstanding the foregoing provisions of Section 3.1.19, if the Individual Project Manager or Project Design Engineer, proves not to be satisfactory to the City, upon written notice from the City to the DB, such person or person shall be promptly replaced by a person who is acceptable to the City in accordance with the procedures set forth below.
3.1.19.4 Replacement Selection of Project Manager and/or Project Design Engineer. Within five (5) working days after receipt of a notice from the City requesting the replacement of any Individual Project Manager or Project Design Engineer, or promptly following the discovery by the Design Build Team that any Individual Project Manager, or Project Design Engineer is leaving the employ of the DB or Engineer, as the case may be, the replacement/substitution (together with such person’s resume and other information regarding such person’s experience and qualifications) for approval by City. The replacement/substitution shall commence work on the Project no later than five (5) calendar days following the City’s approval of such replacement, which approval shall not be unreasonably withheld.
3.1.20 DB agrees and acknowledges that the City Representative is the only person with authority to approve additions or modifications to Project. Any costs or delays resulting from or associated with additions or modifications implemented without the written authorization of the City Representative shall be borne exclusively by DB and not be grounds for an increase in the GMP or Contract Time (Exhibit 1) of this Agreement, unless necessary to protect public health, safety or property.
3.1.21 DB shall fully cooperate with City Representative and any of its agents assigned to this project.
3.1.22 The DB shall remain in compliance with the City of Vista Water Quality Protection Program and, where applicable, City of San Marcos and County of San Diego’s respective stormwater protection programs and shall exercise every reasonable precaution to prevent the discharge of any material which is not solely storm water (i.e., rain events) to the storm drain system. The DB will be responsible for the complete cleanup of all material that is discharged from the project in violation of the discharge rules.
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Section 4: Work Restriction and Bidding Requirement
4.1 DB shall determine how best to package portions of the work for purposes of bidding. DB shall be responsible for selectively bidding all construction work to others and for entering into subcontracts, in DB's own name, with the bidder who in DB’s discretion best meets the monetary, time, and performance requirement of the Project. DB is required to submit a summary of bid results for each bid package. DB shall be responsible for ensuring that these contracts fully comply with all applicable local, state and federal laws, some but not all of which are listed below.
4.2 DB shall hear and decide bid protests and shall develop and maintain bid protest procedures for that purpose. City shall be timely informed of all bid protests (prior to resolution) and the outcome of said protests.
Section 5: DB’s Phase I Services and Obligations – Design Services
5.1 DB’s services in Phase I shall include those specified in Section 5.1 of the RFP.
Section 6: DB’s Phase II Services and Obligations – Construction Services
6.1 Contingent on City’s approval during Phase I Conceptual, 60%, 90% and 100% CDs, Construction Schedule, GMP, and associated contract amendment, DB’s services in Phase II shall include those specified in Section 5.2 of the RFP.
Section 7: INTENTIONALLY LEFT BLANK
Section 8: INTENTIONALLY LEFT BLANK
Section 9: Additional Services
9.1 City will have the right to direct DB to perform Additional Services beyond those specified in this Agreement. DB may provide Additional Services only if authorized in writing, in advance, by City and after complying with Section 9.4. The City may propose changes to the Work of a subcontractor after the bid has been awarded. In the event of a change of this nature, DB will estimate the cost of the Change Order, assist City in developing drawings and specifications as necessary, solicit a revised bid, negotiate with the subcontractor, present a recommendation for a Change Order to City, and implement construction as approved by City.
9.2 For Additional Services which increase the Hard Construction Costs, or other reasonably necessary costs of the Project, DB shall be paid a DB fee of 15% of the total additional labor, equipment, and material costs. This fee includes DB’s office overhead, profit, bonds, and liability insurance. DB shall also be paid a DB fee of 5% of the total subcontractor costs. Regardless of the number of hierarchical tiers of Subcontractors, the 5% which DB fee shall be applied only once to the performing Subcontractor’s total costs. City will also pay any additional Subcontractor’s insurance or bonding costs.
9.3 For Additional Services, which result in an extension of the Substantial Completion date, DB and City shall negotiate the additional costs.
9.4 If at any time DB contends that it is being asked to perform Additional Services, it shall give City written notice 5 days prior to performing said services indicating that DB intends to seek additional compensation beyond the GMP. Furnishing advance written notice shall be a condition precedent to being able to seek additional compensation from City. 10/24/2023 C4 10 of 130
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Section 10: Bonds
10.1 DB shall furnish performance and payment bonds with the names of the obligees designated as the City in the amount set forth below, as security for the faithful performance and payment of all DB’s obligations under the Agreement. These bonds shall remain in effect at least until thirty (30) days after the filing date of Notice of Completion, except as otherwise provided by law or regulation or by this Agreement. DB shall also furnish such other bonds as are required by this Agreement.
10.1.1 The performance bond shall be in the amount of 100% of the GMP.
10.1.2 The payment bond shall be in the amount of 100% of the GMP amount.
10.2 All bonds shall be in the form prescribed by City and by such sureties which are authorized to transact such business in the State of California, listed as approved by the United States Department of Treasury Circular 570, and whose underwriting limitation is sufficient to issue bonds in the amount required by this agreement and which also satisfy the requirements stated in Section 995.660 of the Code of Civil Procedure, except as provided otherwise by laws or regulations. All bonds signed by an agent must be accompanied by a certified copy of such agent’s authority to act. Surety companies must be duly licensed or authorized in the jurisdiction in which the Project is located to issue bonds for the limits so required.
10.3 If the surety on any bond furnished by DB is declared bankrupt or becomes insolvent or its right to do business is terminated in any state where any part of the Project is located, DB shall within seven (7) days thereafter substitute another bond and surety, which must be acceptable to City.
Section 11: Insurance
11.1 The insurance provisions shall meet the requirements of Exhibit 2 which shall not be construed to limit DB’s indemnity obligations contained in this Agreement.
Section 12: Inspection
12.1 DB shall be responsible for all specialty inspection and material testing and inspections.
The City shall perform inspection with its own forces. It shall be the responsibility of DB, however, to call for, coordinate and schedule all inspections.
12.2 City, its consultants, subcontractors, independent testing laboratories as well as other governmental agencies with jurisdictional interests will have access at reasonable times for this observation, inspecting and testing. DB shall provide them proper and safe conditions for such access and advise them of DB’s safety procedures and programs so that they may comply.
12.3 DB will make, or have made, such inspections and tests, as the City deems necessary to see that the Work is being accomplished in accordance with the requirements of the Construction Documents or shall in any way limit or modify DB’ s indemnity obligations as provided for within this agreement. Unless otherwise specified, the cost of such inspection and testing will be bid out and carried as a line item in the construction cost. In the event such inspections or tests reveal non-compliance with the requirements of the Construction Documents, DB shall bear the cost of corrective measures deemed necessary by City, as well as the cost of subsequent re-inspection and re-testing. Neither observations by the City nor inspections, tests, or approvals by others shall 10/24/2023 C4 11 of 130
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relieve DB from DB’s obligations to perform the Work in accordance with the Construction Documents. DB shall give City timely notice of readiness of the Work for all required building inspections and shall cooperate with inspection and testing personnel to facilitate required inspections or tests. DB shall give at least 24 hours’ notice for inspections.
12.4 City has the right to stop or suspend Work activities which will conceal or cover up DB Work product which is to be inspected or tested, or which will interfere with the inspection or testing activities, for a reasonable time and DB will have no right to additional compensation.
Section 13: DB GMP for Services and Reimbursements
13.1 DB shall submit to City 90% CD’s for plan check. Upon the approval of the 90% CD’s, DB shall, within twenty (20) working days, submit a GMP for approval by City. The GMP shall include all Hard Construction Costs, DB Contingency Fund, Reimbursable Costs, and DB Fixed Fee for the complete design and construction of the entire Project as specified in the 90% CD’s; provided that:
13.1.1 Said GMP shall be supported by a detailed itemized breakdown that shows: the DB Fixed Fees and the expected Hard Construction Costs for each of the major trades on the Project which will include labor, material expenses, equipment costs, and a reasonable DB Contingency Fund. Said DB contingency fund shall not exceed 5% of the Hard Construction Costs.
13.1.2 All Hard Construction Costs included in the GMP are for direct Construction costs incurred in performing the work, including taxes, delivery and installation. City shall reimburse DB for the exact amount of subcontract, self-performed work or invoice amount.
No additional DB markup, handling fees, overhead, or other charges are to be added or paid except as otherwise set forth in this agreement. Upon Final Completion of the Project, any amount of Hard Construction Costs or DB Contingency Fund monies not utilized shall result in a deductive Change Order.
13.1.3 The GMP shall include a DB Contingency Fund which can be used by the DB with City approval. If the Parties mutually agree that there is a sufficient surplus, the DB Contingency Fund will be available to provide additional funds for Change Orders as provided for in Section 14 of this Agreement. This Contingency Fund will not be available for: (1) Work required due to DB’s and/or Contractors/subcontractors failure to perform according to the terms of this Agreement and/or in compliance with the Construction Documents, or (2) uninsured losses resulting from the negligence of DB or its Contractors/subcontractors. All Change Orders, including zero dollar Change Orders, which require the use of the DB Contingency Fund, shall require City approval.
13.1.4 DB shall prepare, with the cooperation of the City, alternate bid items to assist in meeting the GMP.
13.2 DB shall perform the Phase I Services on a time and materials basis for an amount not to exceed $306,752.00, as specified in DB’s Project Cost Estimate. Except as otherwise expressly provided in this Agreement, as full and complete compensation for performance of all Phase II Services under this Agreement, DB shall be compensated by the GMP sum to be determined at 90% construction documents. Said amounts for the Phase I and Phase II Services shall not be exceeded unless Additional Services are requested pursuant to Section 9 above or a Change Order issued pursuant to Section 14. Unless otherwise expressly provided in this Agreement, the 10/24/2023 C4 12 of 130
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GMP shall include full compensation for all costs of any type incurred by DB in performing all services and obligations under this Agreement, including but not limited to the following:
13.2.1 All Design Consultants.
13.2.2 Estimating, management of design consultants and value engineering.
13.2.3 Construction supervision and project management personnel, including but not limited to superintendents, Project managers, Project secretaries, Project engineers, Project accountants, and all other DB personnel wherever located.
13.2.4 All on-site and off-site equipment, supplies and facilities, including but not limited to, computers, estimating, dictating, communication and accounting equipment, office space, trailers, field equipment and storage facilities.
13.2.4.1 In no case shall the cumulative monthly rental charges to the Project for equipment and Small Tools used by the DB exceed 90% of the fair market value of any one piece of equipment or Small Tools. At City’s option, the full price for equipment or Small Tools may be paid, and City may take possession upon completion of the Work.
13.2.5 All home-office and field overhead costs of any type including document control and retention.
13.2.6 All business license costs.
13.2.7 All profit DB intends to earn under this Agreement.
13.2.8 All direct and incidental costs incurred by DB, except for those specifically identified in Section 9.
13.3 DB shall be reimbursed, without markup and only as specified in this Agreement for the following “Reimbursable Costs:”
13.3.1 Any reimbursable cost expressly provided for elsewhere in this Agreement.
13.4 DB agrees and acknowledges the City retains its full and complete discretion for all legislative actions, including any future appropriations necessary to complete this Project or fund this Agreement. As more fully provided in Section 26, the City may terminate this Agreement for any reason, including but not limited to, if City Council fails to appropriate sufficient funds or is unsuccessful at obtaining long term financing.
Section 14: Change in GMP and Contract Time
14.1 The GMP and Contract Time may only be changed by written Change Order. Change Orders shall be issued only under the following circumstances:
14.1.1 The City directs DB to perform Additional Services or City Changes as provided in Section 9.
14.1.2 For reasons expressly provided elsewhere in this Agreement.
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14.2 The following procedure shall be followed for the issuance of Change Orders:
14.2.1 Upon the occurrence of any event that gives rise to a Change Order, including any action, inaction, decision or direction by City or agent for the City, DB shall give the City notice of the same within five (5) calendar days. DB shall not proceed with any such services or work until such notice has been given to the City except if such services or work are necessary to protect public health, safety or property as directed by the City Representative in writing.
14.2.2 If DB submits a request to change the GMP, DB shall: (1) inform City of any request to change the GMP or Contract Time at the next Project Team Meeting; (2) provide City with a list of recommended revisions which DB believes will bring Project within the GMP; and (3) assist City in reviewing the itemized cost breakdown and recommend revisions so that City can revise the scope of the Project so that the GMP is not exceeded.
14.2.3 DB’s notice to the City shall include a detailed and complete estimate of the cost and time impacts associated with the requested Change Order, including all appropriate direct and indirect costs and credits. All such costs and credits shall be accurately categorized into DB Fixed Fee, Reimbursable Costs or Hard Construction Costs. DB shall also provide City with a realistic estimate of the impact, if any, the Change Order will have on the Contract Time. DB shall provide complete and accurate pricing within ten (10) calendar days of the occurrence of the event that gives rise to a Change Order.
14.2.4 Upon submission of the detailed estimates by the DB, the Parties will attempt to negotiate an appropriate adjustment in GMP and Contract Time. If an agreement is reached, a Change Order reflecting the agreement will be executed by the Parties. If an agreement is not reached, the City shall have the option to direct the DB to proceed with the subject services and/or work, during which time the DB shall contemporaneously maintain accurate and complete records of all labor, material and equipment utilized in performing the subject services and/or work. These records shall be submitted to the City and shall become the basis for continued negotiations between the Parties for an equitable adjustment to the GMP and/or Contract Time.
14.2.5 In the event there is any disagreement or dispute between the Parties as to whether the DB is entitled to a Change Order or the amount of the Change Order, the matter shall be resolved in accordance with Section 33. DB shall not have the right to stop or delay in the prosecution of any services or work, including services or work that is the subject of the Change Order, pending this resolution process. Instead, DB shall continue diligently prosecuting all such services and work.
14.2.6 City may, in its sole discretion, adjust the GMP or Contract Time for any undisputed amount or time associated with the Change Order or Additional Services.
14.3 All Change Orders, including zero dollar Change Orders which require the use of DB Contingency Fund, irrespective of impact on GMP and Contract Time shall require City approvals, however City shall not unreasonably withhold approval for use of contingency funds for changes normally encountered due to unforeseen omissions in the work packages and minor clarifications of the drawings.
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Section 15: Payment Terms
15.1 DB shall provide all Phase I Services for the Phase I Fee. DB shall submit certificate and application for payment to the City on a monthly basis for Phase I Services rendered and costs incurred. The monthly payment shall be based upon percentage of completion of the Schedule of Values plus any Reimbursable Costs as provided in Section 15.3.
15.2 DB shall provide all Phase II Services for the Phase II Fee. DB shall submit certificate and application for payment to City on a monthly basis for Phase II Services. The monthly payment application shall be based upon the percentage of completion of the Schedule of Values plus any Reimbursable Costs and Hard Construction Costs as provided in Section 15.3 and 15.4, less any payments previously made by the City and subject to the receipt of unconditional lien releases for all prior payments and if the invoiced amount is not disputed by City, it shall pay DB ninety five percent (95%) of payment application based upon the percentage complete of the Schedule of Values and 100% of the reimbursable costs within thirty (30) days after receipt of the fully documented invoice. City will withhold the remaining 5% as security for DB’s full performance.
15.3 DB shall develop and maintain an accurate system for tracking all Reimbursable Costs.
Utilizing this system, DB shall include with each month payment application an itemization of all such Reimbursable Costs actually incurred by DB, during the previous month. If requested by the City, DB shall provide all backup documentation supporting such Reimbursable Costs.
15.4 DB shall develop and maintain an accurate system for tracking all Hard Construction Costs it incurs on the Project. Utilizing this system, DB shall include with each monthly application for payment an itemization of all Hard Construction Costs actually incurred by DB during the previous month.
15.5 DB shall separately submit to City certificate and application for payment on a monthly basis for any authorized Additional Services performed by DB. Subject to the receipt of unconditional lien releases for all prior payments and if Additional Services are not disputed by City, City shall pay ninety five percent (95%) of the invoiced amount within thirty (30) days of receipt of fully complete invoice. City will withhold the remaining 5% as security for DB’s full performance.
15.6 Subject to Sections 15.8, City shall pay DB the five percent (5%) retention being withheld pursuant to Sections 15.2, and 15.5 as part of the “Final Payment” to DB. Final Payment will be made thirty-five (35) days after Final Completion.
15.7 The City Manager will consider the release of the entire retention for subcontractors upon completion of the subcontractors’ work and execution of a disclaimer and unconditional final lien release by the subcontractor.
15.8 In lieu of withholding retention under this Agreement, at the election of DB, City will deposit retention amounts into escrow and/or the substitution of securities for money as provided in California Public Contract Code Section 22300.
Section 16: Project Completion
16.1 Substantial Completion shall be that stage in the progress of the construction when all Work on the Project is sufficiently complete in accordance with the Construction Documents so that City can fully utilize entire Project; Substantial Completion shall further mean that all goods, services and systems to be provided under the terms and conditions of the Construction 10/24/2023 C4 15 of 130
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Documents are in place and have been initially tested, and are operationally functional, subject only to final testing, balancing and adjustments and normal Final Completion punch list Work.
16.2 Final Completion shall be deemed to occur on the last of the following events: (1) recordation of a Notice of Completion for the Project; (2) acceptance of the Project by the City; (3) issuance of a final Certificate of Occupancy for the Project; (4) submission of all documents required to be supplied by DB to City under this Agreement, including but not limited to As-Built Drawings, warranties, and operating manuals; (5) and delivery to City of a Certificate of Completion duly verified by DB.
16.3 DB shall provide City with a Certificate of Completion, certifying to City under penalty of perjury that the Project has been completed in accordance with the Construction Documents, all applicable building codes and regulations, all permits, licenses, and certificates of inspection, use and occupancy, and ordinances relating to the Project.
16.4 DB shall provide one set of City final record drawing documents at the end of construction and one copy in electronic format (“As-Built Drawings”). As-Built Drawings are to be accurate and legible records showing exact location by dimensions, and the exact depth by elevation of underground lines, valves, plugged tees, wiring and utilities.
16.5 DB shall provide a copy of, or make available before destruction, all records (which includes all writings as defined in Evidence Code Section 250) to the City upon receipt or generation, which shall include a copy of DB’s filing protocol.
Section 17: Contract Time
17.1 The “Contract Time” shall be the number of calendar days stated in Section 1 for DB to achieve Substantial Completion.
17.2 “Time is of the essence” with regard to Contract Time and all milestones listed in the schedule.
17.3 The Contract Time may only be changed by a Change Order as set forth in Section 14.
17.4 Further, an extension in Contract Time will not be granted unless DB can demonstrate through an analysis of the Project Schedule that the increases in the time to perform or complete the Project, or specified part of the Project, beyond the corresponding Contract Time arise from unforeseeable causes beyond the control and without the fault or negligence of DB, its Design Consultants, and subcontractors or suppliers, and that such causes in fact lead to performance or completion of the Project, or specified part in question, beyond the corresponding Contract Time, despite DB’s reasonable and diligent actions to guard against those effects.
17.5 DB carries the burden of proving an entitlement to an increase in the Contract Time.
Delays attributable to and within the control of Design Support Consultants, or subcontractor or supplier shall be deemed to be delays within the control of DB. No time extension will be allowed for such delays. An increase in Contract Time does not necessarily mean that DB is due an increase in the GMP.
Section 18: Late Completion
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thereof allowed in accordance with Section 17.3. They also recognize the delays, expense, and difficulties involved in proving in a legal proceeding the actual loss suffered by City if the Project is not completed on time. Accordingly, instead of requiring any such proof, City and DB agree that DB shall pay as liquidated damages (but not as a penalty) for each calendar day of delay beyond the time specified for Substantial Completion of the Project, the following amounts which DB expressly agrees are “not unreasonable under the circumstances” as defined in California Civil Code §1671(b): $1500 for each calendar day. Liquidated Damages shall not be assessed after the date on which Substantial Completion is achieved pursuant to Section 16.
Section 19: Right to Modify Work
19.1 Without invalidating the Agreement and without notice to any surety, City may at any time or from time to time, order additions, deletions, or revisions in the Project; these will be authorized by a written Change Order prepared and issued by City. Upon receipt of any such document, DB shall promptly proceed with the Work involved which will be performed under the applicable conditions of the Construction Documents (except as otherwise specifically provided).
19.2 When City desires a change in the Project, City may issue a Request for Proposal to DB.
DB will be required to respond within the time indicated by City.
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Section 21: Work By Others
21.1 City may perform other work related to the Project at the Project Site by City’s own forces, or let other direct contracts (“City Contractor”). The City will give DB reasonable notice of its intent to do such other work. DB’s work shall take priority over the City Contractors; but the Parties will use their best efforts to coordinate their work so as to minimize the disruption to each other’s work and to allow City Contractor to proceed expeditiously.
21.2 If the proper execution or results of any part of DB’s work depends upon the work by the City or City Contractor, DB shall promptly inspect and report to City in writing any apparent delays, defects, or deficiencies in the City’s work that render it unavailable or unsuitable for such proper execution and results. DB’s failure to promptly report such delays, defects, or deficiencies in writing before commencement of the affected work, will constitute an acceptance of the City’s work as fit and timely for integration with DB’s Work except for latent defects and deficiencies in the City’s work for which DB will not be responsible.
21.3 If DB or any person or entity working for DB causes damage to the City’s or City Contractor’s work, property, or person, or if any claim arising out of DB’s performance of the Project by any other contractor is made against DB, by City, any other contractor, or any other person, DB shall promptly repair and/or resolve said claim at no cost to City.
Section 22: Warranties and Guarantees
22.1 DB warrants and guarantees to City that materials and equipment incorporated into the Project will be new unless otherwise specified and that all work will be in strict accordance with the Construction Documents and will not be defective. Prompt notice of defects known to City shall be given to DB. All Defective Work, whether or not in place, may be rejected, corrected, or accepted as reasonably directed by City, provided DB shall not be entitled to an extension in Contract Time or increase in GMP because of any delay or increase in cost attributable to the 10/24/2023 C4 17 of 130
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rejection, correction or acceptance of said work. Defective work may be rejected even if approved by prior inspection.
22.2 The warranty period shall commence when the Certificate of Final Completion is issued or at beneficial use by City prior to Final Completion, whichever occurs earlier, and extend one (1) year after that date or whatever longer period may be prescribed by laws or regulations or by the terms of any applicable special guarantee or specific provision of the Construction Documents.
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22.5 Correction of Defective Work - If within the designated warranty period, or such longer period as may be required by laws or regulations, the Project or any part of the Project, is discovered to contain defective work, DB shall promptly, without any reimbursement or adjustment in the GMP, and in accordance with City’s written instructions, either correct that defective work, or if it has been rejected by City remove it from the Project and replace it with work which is not defective. If circumstances warrant it, including but not limited to, in an emergency, City or DB may have the defective work corrected or the defective work removed and replaced. In that event, DB shall not be allowed to recover any associated costs, and DB shall reimburse City for all direct, and indirect costs of City, and City shall be entitled to an appropriate decrease in the GMP, to withhold a setoff against amount recommended for payment, or make a claim on DB’s bond if DB has been paid in full.
22.6 With respect to all warranties, express or implied, from subcontractors, manufacturers, or suppliers for Work performed and materials furnished under this Agreement, the DB shall:
22.6.1 Obtain all warranties that would be given in normal commercial practice and as required by the City;
22.6.2 Require all warranties to be executed, in writing, for the benefit of City;
22.6.3 Enforce all warranties for the benefit of City, if directed by City;
22.6.4 In the event DB’s warranty under Section 22.2 has expired, City may bring suit at its expense to enforce a subcontractor’s, manufacturer’s, or supplier’s warranty;
22.6.5 DB shall assign all subcontractor, supplier and manufacturer warranties including maintenance contracts from the installer for specialized equipment to cover the limited warranty period to City at the expiration of the one year warranty.
Section 23: Use and Possession Prior to Completion
23.1 City shall have the right to take possession of or use any completed or partially completed part of the Work if mutually agreed upon by the parties. Before taking possession of or using any Work, City shall furnish DB a list of items of Work remaining to be performed or corrected on those portions of the Work that City intends to take possession of or use. However, failure of City to list any item of Work shall not relieve DB of responsibility for complying with the terms of this Agreement. City’s possession or use shall not be deemed an acceptance of any Work under this Agreement, nor relieve the DB of any of its obligations under this Agreement.
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23.2 While City has such possession or use, DB shall be relieved of the responsibility for the loss of or damage to the Work resulting from City’s possession or use. If prior possession or use by City delays the progress of the Work or causes additional expense to DB, an equitable adjustment shall be made in the GMP or the Contract Time, and the Agreement shall be modified in writing accordingly.
Section 24: Personal Services and Non-Assignability
24.1 This is a personal services Agreement and, therefore, DB shall not alter the key employees or Design Consultants nor assign or transfer, voluntarily or involuntarily, any of its rights, duties or obligations under this Agreement except upon the prior written consent of City. Any such change, assignment or transfer without the prior written consent of the City shall be deemed null and void and constitute a material breach under this Agreement.
Section 25: Indemnification
25.1 To the fullest extent permitted by the law, DB shall indemnify, defend, protect and hold harmless City, their elected and appointed officers, agents, employees, consultants, (collectively herein the “Indemnitees”), from and against all claims, demands, causes of action, damages, injuries, liabilities, losses and expenses (including, without limitation, reasonable attorneys’ and consultants’ fees and expenses) of any kind whatsoever, arising in whole or in part out of or resulting from DB’s performance of this Agreement, DB’s breach of this Agreement, or the alleged negligent acts or omissions of DB, its architects, engineers, other professionals and consultants, Contractors, suppliers or anyone directly or indirectly employed by any of them or anyone for whose acts they may be liable. The obligations of the DB under this paragraph for errors or omissions, including those of the design professional subcontractors, which includes the Design Subcontractors, consultants, agents and employees thereof (“Design Subcontractors”), which arise from (1) the preparation or approval of maps, drawings, opinions, reports, surveys, designs or specifications, or (2) the giving of or the failure to give directions or instructions shall not be limited to the amount of coverage provided for in the professional liability insurance policy. If City is fully reimbursed by DB’s insurance for any loss covered by this paragraph, DB shall have no further obligation for such loss.
25.2 DB’s obligation to indemnify under Section 25.1 shall not extend to such claims, demands, causes of action, damages, injuries, liabilities, losses and expenses, to the extent that such is the result of the active negligence or the willful misconduct of an Indemnitee. DB’s obligation to defend under Section 25.1, if not covered by the insurance to be provided on the Project, shall not extend to such claims, demands, causes of action, damages, injuries, liabilities, losses and expenses, or causes of actions, to the extent that such are caused by the active negligence or the willful misconduct of the Indemnitee, and from no other cause.
25.3 DB shall ensure that any asbestos or hazardous or toxic substances encountered on the site is properly removed and disposed of in accordance with all state or federal statutes or regulations. DB’s obligation regarding the removal or disposal of asbestos or hazardous or toxic substances, products or materials shall be limited to the proper removal within the Project boundaries and the proper disposal of such materials. The DB agrees to the fullest extent permitted by law, to indemnify, defend, and hold harmless the City, its elected and appointed officers, employees, agents and consultants from and against any and all claims, suits, demands, liabilities, losses, or costs, including reasonable attorney’s fees and defense costs, resulting or accruing to any and all persons, firms, and any other legal entity, caused by, arising out of or in any way connected with the removal or disposal of any asbestos or hazardous or toxic substances, products or materials that exist on the jobsite whether liability arises under breach of 10/24/2023 C4 19 of 130
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contract or warranty, tort, including negligence, strict liability or statutory liability or any other cause of action.
Section 26: Right to Terminate and Suspend Work
26.1 Archaeological and Paleontological Discoveries: If a discovery is made of an archaeological or paleontological interest, DB shall immediately cease operations in the area of the discovery and shall not continue until ordered by City. When resumed, operations within the area of the discovery shall be as directed by City.
26.1.1 Discoveries which may be encountered may include, but are not be limited to, dwelling sites, stone implements or other artifacts, animal bones, human bones, fossils or any item with cultural significance.
26.1.2 DB shall be entitled to an extension of time and compensation in accordance with the provisions of this Agreement.
26.2 Termination of Agreement by City for Cause: If, through any cause, DB shall fail to fulfill in a timely and proper manner DB’s obligations under this Agreement, or if DB shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to DB of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. All finished or unfinished documents, data, studies, drawings, maps, plans, specifications, reports, electronic files, and other materials prepared by DB, or any of its agents, Design Consultants or Subcontractors, shall, at the option of the City, become the property of the City, and DB shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination, not to exceed amounts payable hereunder, and less any damages caused by DB’s breach.
26.2.1 In the event the Agreement is terminated in accordance with this Section, City may take possession of the Project and may complete the Project by whatever method or means City may select.
26.2.2 If the cost to complete the Project exceeds the balance, which would have been due, DB shall pay the excess amount to City.
26.2.3 Rights of City Preserved: Where DB’s services have been so terminated by City, the termination will not affect any rights or remedies of City against DB then existing or which may thereafter accrue. Any retention or payment of moneys due DB by City will not release DB from liability. It is agreed that termination hereafter will not in any way release, waiver, or abridge any rights the City has against DB’s performance bond surety.
26.3 Any dispute as to the amount due or owed to DB upon termination under this section shall be resolved in accordance with Section 26.
26.4 Termination for Convenience by City: City may terminate this Agreement at any time and for any reason, by giving specific written notice to DB of such termination and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. In that event, all finished and unfinished documents and other materials described hereinabove shall, at the option of the City, become City’s sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, DB shall be entitled to receive just and equitable compensation for any satisfactory Work completed to the effective date of such termination. DB 10/24/2023 C4 20 of 130
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hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein.
26.4.1 Records and Documents Relating to Termination: Unless otherwise provided in the Agreement or by statute, DB shall maintain all records and documents relating to the terminated portion of this Agreement for three (3) years after final settlement. This includes all books and other evidence bearing on DB’s costs and expenses under this Agreement.
DB shall make these records and documents available to City, at DB’s office, at all reasonable times, without any direct charge. If approved by the City Manager, photographs, electronic files, microphotographs, or other authentic reproductions may be maintained instead of original records and documents.
26.5 Upon receipt of the Notice of Termination, DB shall take any action that may be necessary, or that the City Manager may direct, for the protection and preservation of the property related to this Agreement that is in the possession of DB and in which City has or may acquire an interest.
26.6 Payment to DB Due to Termination - DB and the City Manager may agree upon the whole or any part of the amount to be paid because of the termination. The amount may include a fee proportional to the percentage of work satisfactorily completed. However, the agreed amount may not exceed the total dollar amount authorized by City as reduced by the amount of payments previously made.
26.7 Failure to Agree on Payment - If DB and City fail to agree on the whole amount to be paid because of the termination of Project, City shall pay DB the fair and reasonable amounts determined in good faith by City as follows, but without duplication of any amounts agreed to above:
26.7.1 The price for completed services accepted;
26.7.2 The costs incurred in the performance of the Project terminated, including initial costs and preparatory expense allocable thereto. These costs are only for Work completed and accepted by the City based on an audit of all Contractors’ bills of materials and the timecards for Work actually performed;
26.7.3 DB and Design Subcontractor services through the date of termination shall be paid based on actual time spent as documented on timecards. Expenses shall be paid based on invoice and receipts provided by DB;
26.7.4 Under no circumstances will DB be entitled to any consideration for lost profit or lost opportunity costs;
26.8 If DB does not agree that the amount determined by the City Manager is fair and reasonable and if DB gives notice of such disagreement to City within thirty (30) days of receipt of payment, then the amount due shall be as later determined pursuant to the Dispute Resolution procedures in Section 26.
26.9 Payment for Property Destroyed, Lost, Stolen or Damaged - Except to the extent that City expressly assumed the risk of loss, the City Manager shall exclude from the amounts payable to DB under this Section, the fair value, as determined by the City Manager, of property that is destroyed, lost, stolen, or damaged so as to become undeliverable to City.
26.10 Deductions - In arriving at the amount due DB under this section, there shall be deducted:
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26.10.1 Any claim which City has against DB under this Agreement; and
26.10.2 The agreed price for, or the proceeds of sale of, materials, supplies, or other things acquired by DB or sold under the provisions of this clause and not recovered by or credited to City.
26.11 Termination of Agreement by DB:
26.11.1 DB may terminate the Agreement upon ten (10) days written notice to City, whenever:
26.11.1.1 The Project has been suspended under the provisions of Section 26.1 or 26.2, for more than ninety (90) consecutive days through no fault or negligence of DB, and notice to resume Work or to terminate the Agreement has not been received from City within this time period; or
26.11.1.2 City should fail to pay DB any monies due it in accordance with the terms of this Agreement and within ninety (90) days after presentation to City by DB of a request therefore, unless within said 10-day period City shall have remedied the condition upon which the payment delay was based.
26.11.2 In the event of such termination, DB shall have no claims against City except for those claims specifically enumerated in Section 26.9, herein, and as determined in accordance with the requirements of said Section.
Section 27: Independent Contractor
27.1 DB and any Design Consultant, Contractor, Subcontractor, agent or employee of DB, shall act as an independent contractor and not as an agent, officer or employee of City. Except as expressly provided in this Agreement, City assumes no liability for DB’s actions and performance; in particular, but without limitation, City assumes no responsibility for paying any taxes, bonds, payments or other commitments, implied or explicit, by or for DB. DB acknowledges that it is aware that because it is an independent contractor, City is making no deductions from the fees for services being paid to DB and that City is not contributing to any fund on the behalf of DB. DB disclaims the right to any type of additional fee or benefits.
Section 28: Independent Judgment
28.1 Unless otherwise directed in writing by City, DB shall, in providing the professional services required by this Agreement, arrive at conclusions with respect to the rendition of information, advice and recommendations, independent of the control and direction of City, other than normal contract monitoring; DB, however, shall possess no authority with respect to any City decision beyond rendition of such information, advice and recommendations. DB shall not have the authority to act as an agent on behalf of City unless specifically authorized to do so by City in writing.
Section 29: Maintenance of Records and Accounting
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under this Agreement. City will have the right at any time, including during the performance of all Phases of the Project to audit and copy all such records.
Section 30: Ownership of Documents
30.1 Drawings, plans and specifications, and all reports, studies, tracings, maps, electronic files, and other documents prepared or obtained by DB in the course of performing the work under this Agreement shall be the property of City, and DB shall convey and transfer all copyrightable interests in such drawings, plans and specifications, documents to City. Basic survey notes, sketches, charts, computations and similar data prepared or obtained by DB under this Agreement shall, upon request, be made available to City. City agrees to use the original plans and drawings for purposes of this construction project only and will not use the original plans or drawings in connection with any other construction project. City agrees to indemnify, defend and hold harmless DB against any claims, losses, costs or damages as a result of City's reuse or misuse of such plans, drawings and specifications. In the event of the return of the plans, drawings, or specifications to DB or its representative, DB shall be responsible for their safe return to City. DB shall be entitled to retain copies of the plans, drawings and specifications for their files.
Under no circumstances shall DB fail to deliver any draft or signed and sealed final plans, drawings or specifications to City upon written demand by City for their delivery, notwithstanding any disputes between DB and City concerning payment, performance of Agreement, or otherwise.
This covenant shall survive the termination of the Agreement.
30.2 Title to Intellectual Property. DB shall represent that it has secured all necessary licenses, consents or approvals to use the components of any intellectual property, including computer software, used in the rendering of services and the production of the materials for the Project and that City has full legal title to and the right to reproduce such materials. DB covenants to defend, indemnify and hold City harmless of any loss, claim or liability in any way related to a claim that City is violating, as a result of any services rendered by the DB, either any contractual provisions or any federal, state or local law, relating to trade names, licenses, franchises, patents or other means of protecting interests in products or inventions.
Section 31: Force Majeure
31.1 Any party to this Agreement may be excused for any delay or failure to perform its duties and obligations under this Agreement, except for obligations to pay money, but only to the extent that such failure or delay is caused by an Event of Force Majeure as set forth in Section 31.2. If an Event of Force Majeure set forth in Section 31.2 causes a delay or failure in performance of only a portion of the obligations of a Party under this Agreement, then only that portion of performance which was delayed or prevented by such cause shall be deemed excused, and the performance of all other obligations of a Party not so delayed shall not be excused by an Event of Force Majeure. Delay or failure in performance of all other obligations of a Party not so delayed shall not be excused by such Event of Force Majeure. Delay or failure in performance by a Party which is the result of an Event of Force Majeure set forth in Section 31.2 shall be deemed excused for a period no longer than the delay or failure in performance caused by such Event.
31.2 An Event of Force Majeure means an occurrence beyond the control and without the fault or negligence of a Party, including but not limited to unusually severe weather, flood, earthquake, fire, lightning, and other natural catastrophes, acts of God or the public enemy, war, terrorist act, riot, insurrection, civil disturbance or disobedience, strike or labor dispute for which DB is not responsible, expropriation or confiscation of facilities, changes of applicable law, or sabotage of facilities, so long as such Party makes good faith and reasonable efforts to remedy the delays or failures in performance caused thereby. However, DB, in developing the GMP and Project 10/24/2023 C4 23 of 130
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Schedule, has incorporated three (3) days for anticipated adverse weather days that may disrupt work on the Project; DB shall be entitled to relief under this Section for adverse weather only to the extent adverse weather days exceed this amount of days.
31.3 A Party shall give written notice to the other Party as soon after becoming aware of the delay or failure in performance caused by an Event of Force Majeure as is reasonably possible, but in any event within five (5) working days after Party becomes aware of such delay or failure.
31.4 No Event of Force Majeure shall be a basis for monetary adjustment to the GMP. Costs incurred by the DB as a result of a Force Majeure Event will be reimbursed according to the terms of this Agreement from the Contingency Fund.
Section 32: Hazardous Materials
32.1 In the event the DB or any other party encounters asbestos or hazardous or toxic materials at the Project Site, or should it become known in any way that such materials may be present at the Project Site or any adjacent areas that may affect the performance of the DB’s services, the DB may, at his or her option and without liability for consequential or any other damages, suspend performance of services on the Project until the City retains appropriate specialist consultant(s) or contractor(s) to identify, abate and/or remove the hazardous or toxic materials, and warrant that the Project Site is in full compliance with applicable laws and regulations.
Section 33: Disputes
33.1 All claims, counterclaims, disputes, and other matters in question arising under, or relating to, the Agreement or the breach thereof shall be processed in accordance with the provisions of this Section, unless specifically addressed by another provision of this Agreement.
33.2 DB shall submit its written request for additional compensation for work beyond the scope of this Agreement to City pursuant to Section 9. City shall make a determination on DB’s request in writing within 7 days of receipt of request and all supporting data. Said request for approval of work beyond the scope of this Agreement shall be made in good faith and accurately reflect the adjustment in project fee or schedule for which DB believes City is liable, and covers all costs and delays to which DB believes it is entitled as a result of the occurrence of the claimed event. All requests for adjustment in schedule shall include an analysis of the impact of the claimed work on specific activities on the schedule.
33.3 If DB disagrees with City’s determination, DB shall file a claim in writing in accordance with the procedures set forth in Chapter 1.28 of the Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of the same.
33.4 Pending final resolution of any claim, including litigation, DB shall proceed diligently with performance of the Project, and comply with any direction of City.
Section 34: Notices
34.1 All notices, demands or other communications hereunder shall be given or made in writing and shall be delivered personally or sent by courier or registered or certified mail, return receipt requested, postage prepaid, addressed to the Party to whom they are directed at the following addresses, or at such other addresses as may be designated by notice from such Party:
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To CITY:
Engineering Department
Attn: Gabe Grewe
200 Civic Center Drive
Vista, CA 92084
To DB:
Glen F. Bullock
Dick Miller Inc.
903 Boardwalk, Suite H
San Marcos, CA 92078
Any notice, demand or other communication given or made solely by mail in the manner prescribed in this Section shall be deemed to have been given and to be effective three (3) days after the date of such mailing; provided, however, that any notice, demand or other communication which would otherwise be deemed to have been given on a day which is not a working day shall be deemed to have been given on the next subsequent working day.
Section 35: Miscellaneous Terms
35.1 Representations: Each Party hereto declares and represents that in entering into this Agreement it has relied and is relying solely upon its own judgment, belief and knowledge of the nature, extent, effect and consequence relating thereto. Each Party further declares and represents that this Agreement is being made without reliance upon any statement or representation of any other Party not contained herein, or any representative, agent or attorney of any other Party.
35.2 Severability: If any term or condition of this Agreement is held to any extent to be invalid or unenforceable, all the remaining terms and conditions shall be enforceable to the fullest extent permitted by law.
35.3 Entire Agreement: This Agreement contains the entire agreement, between the Parties and supersedes all prior negotiations, discussions, obligations and rights of the Parties in respect of each other regarding the subject matter of this Agreement. There is no other written or oral understanding between the Parties. No modification, amendment or alteration of this Agreement shall be valid unless it is in writing and signed by the Parties hereto.
35.4 Drafting Ambiguities: The Parties agree that they are aware that they have the right to be advised by counsel with respect to the negotiations, terms and conditions of this Agreement, and that the decision of whether or not to seek the advice of counsel with respect to this Agreement is a decision which is the sole responsibility of each of the Parties hereto. This Agreement shall not be construed in favor of or against either Party by reason of the extent to which each Party participated in the drafting of the Agreement.
35.5 Applicable Law: The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. Venue for mediation, arbitration and/or actions arising out of this Agreement shall be in the City of Vista, California.
35.6 Waiver: Unless otherwise expressly provided herein, no delay or omission by the Parties hereto in exercising any right or remedy provided for herein shall constitute a waiver of such right or remedy, nor shall it be construed as a bar to or a waiver of any such right or remedy on any future occasion.
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35.7 Effect of Headings: Headings appearing in this Agreement are inserted for convenience of reference only, and shall in no way be construed to be interpretations of the provisions hereof.
35.8 Amendments: This Agreement may be modified, amended or supplemented only by the mutual written agreement of the Parties hereto.
35.9 Authorization and Compliance: Each Party represents that it is duly authorized to execute and carry out the provisions of this Agreement.
35.10 Further Assurances: The Parties agree to do such further acts and things and execute and deliver such additional agreements and instruments as the other may reasonably require to consummate, evidence or confirm the agreements contained herein in the manner contemplated hereby.
35.11 Counterparts: This Agreement may be executed by the Parties in one or more counterparts, all of which taken together shall constitute one and the same instrument. The facsimile signatures of the Parties shall be deemed to constitute original signatures, and facsimile copies hereof shall be deemed to constitute duplicate original counterparts.
35.12 Exhibits: All Exhibits are incorporated herein by reference into this Agreement.
35.13 Third Party Beneficiary: Nothing within this Agreement shall create a contractual relationship between the City and any third party.
35.14 Counterparts; Electronic Signatures; Electronic Delivery: This Agreement may be executed in separate counterparts, none of which need contain the signatures of both Parties, and each of which, when so executed, shall be deemed an original and all together shall constitute and be one of the same instrument. The Parties agree that this Agreement, whether executed by electronic signature, digital signature, or constituting a scanned or electronically reproduced copy or image of this Agreement bearing the signatures of the Parties, will be deemed an original and will represent competent evidence of the execution, terms and existence of this Agreement notwithstanding the failure or inability to produce an original executed Agreement or counterpart thereof, and without the requirement that the unavailability of such original executed Agreement or counterpart thereof first be proven. Further, the exchange of this entire executed Agreement (and/or such exhibit(s) or document(s)) that is in photostatic or portable document format (.pdf) form by electronic mail or by another electronic means shall be considered original(s) and shall constitute effective execution and delivery of the original(s).
Section 36: Prevailing Wages; Labor Law Compliance
This contract is subject to the provisions of Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code relating to public works. Design-Builder agrees to execute City’s Agreement to Comply with California Labor Law Requirements (Exhibit 5) and to comply with the Labor Code to the extent that work under this Agreement is subject to those requirements.
[Continued on next page]
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Section 37: Execution
IN WITNESS WHEREOF; the Parties hereto have executed this Agreement as of the Agreement Date.
“City”
CITY OF VISTA, a chartered municipal
corporation
BY:
JOHN B. FRANKLIN, MAYOR
ATTEST:
KATHY VALDEZ, CITY CLERK
BY:
APPROVED AS TO FORM:
WALTER CHUNG, CITY ATTORNEY
BY:
RISK MANAGEMENT REVIEW:
DOLORES GASCON, RISK MANAGER
BY:
APPROVED
Amanda L. Guy
20230928140511
“Design Builder”
DICK MILLER INC., a California
corporation
By:
Name/Title
BY:
Name/Title
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EXHIBIT LIST
1. Design/Build Services Proposal, Schedule of Rates, and Project Schedule
2. Insurance and Bonding Requirements
3. Request for Proposal (RFP)
4. Project Site
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EXHIBIT 1
Design/Build Services Proposal, Schedule of Rates, and Project Schedule
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EXHIBIT 2
Insurance and Bonding Requirements
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INSURANCE AND BONDING REQUIREMENTS
Contractor shall procure and maintain for the duration of the Contract, and for one year thereafter, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, his agents, representatives, employees, or subcontractors.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (“CGL”): Insurance Work Office Form CG 00 01 covering CGL on an “occurrence” basis, including products, completed operations, property damage, bodily injury, and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this Project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Work Office Form Number CA 0001 covering Code 1 (any auto), with limits no less than $2,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employers’ Liability insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease.
4. Surety Bonds as described below.
Contractor shall also provide the additional coverages checked below and at least as broad as:
5. Contractors’ Pollution Legal Liability and/or Asbestos Legal Liability and/or Errors and Omissions (if Project involves environmental hazards) with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate.
6. Builder’s Risk (Course of Construction) insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the Project and no coinsurance penalty provisions.
7. Professional Liability (if Design/Build), with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate.
If the contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
Deductibles and Self-Insured Retentions
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deductibles or self-insured retentions as respects the City, its officers, officials, employees, and volunteers; or the Contractor shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
1. The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations and automobiles owned, leased, hired, or borrowed by or on behalf of the Contractor. General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10, CG 11 85 or both CG 20 10 and CG 20 37 forms if later revisions used), unless otherwise approved in advance by City.
2. For any claims related to this Project, the Contractor’s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, and volunteers.
Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it.
3. Each insurance policy required by this clause shall provide that coverage shall not be canceled, except with notice to the City.
Builder’s Risk (Course of Construction) Insurance
Contractor may submit evidence of Builder’s Risk insurance in the form of Course of Construction coverage. Such coverage shall name the City as a loss payee as their interest may appear.
If the Project does not involve new or major reconstruction, at the option of the City, an Installation Floater may be acceptable. For such Projects, a Property Installation Floater shall be obtained that provides for the improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery and equipment. The Property Installation Floater shall provide property damage coverage for any building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the Work, including during transit, installation, and testing at the City’s site.
Claims Made Policies
If any coverage required is written on a claims-made coverage form:
1. The retroactive date must be shown, and this date must be before the execution date of the Contract or the beginning of Contract work.
2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of Contract work.
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3. 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, or start of work date, the Contractor must purchase extended reporting period coverage for a minimum of five (5) years after completion of Contract work.
4. A copy of the claims reporting requirements must be submitted to the City for review.
5. If the services involve lead-based paint or asbestos identification/remediation, the Contractors Pollution Liability policy shall not contain lead-based paint or asbestos exclusions. If the services involve mold identification/remediation, the Contractors Pollution Liability policy shall not contain a mold exclusion, and the definition of Pollution shall include microbial matter, including mold.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of no less than A: VII, unless otherwise acceptable to the City.
Waiver of Subrogation
Contractor hereby agrees to waive rights of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Contractor, its employees, agents and subcontractors.
Verification of Coverage
Contractor shall furnish the City with original certificates and amendatory endorsements, or copies of the applicable insurance language, effecting coverage required by this Contract. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time.
Subcontractors
Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a format least as broad as CG 20 38 04 13.
Surety Bonds
Contractor shall provide the following Surety Bonds if checked:
1. Bid Bond.
2. Payment Bond and Performance Bond.
3. Maintenance Bond.
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The Payment Bond and the Performance Bond shall be in an amount equal to the Contract Ceiling Price. If the Performance Bond provides for a one-year warranty a separate Maintenance Bond is not necessary. If the warranty period specified in the Contract is for longer than one year a Maintenance Bond equal to 10% of the Contract price is required.
Bonds shall be duly executed by a responsible corporate surety, authorized to issue such bonds in the State of California and secured through an authorized agent with an office in California.
Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other circumstances.
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EXHIBIT 3
Request for Proposal (RFP)
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DESIGN/BUILD SERVICES
REQUEST FOR PROPOSALS (RFP)
FOR
FOOTHILL/OAK AND BOBIER/CALLE JULES
ROUNDABOUTS PROJECT
CIP 8339 & CIP 8358
Engineering Department
Gabe Grewe
Capital Projects Manager
200 Civic Center Drive
Vista, CA 92084
(760) 643-5413
Submittal Deadline: Thursday, August 10, 2023, at 4:00 PM
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Table of Contents
1. INTRODUCTION ................................................................................................................................ 2
2. PREVAILING WAGES ........................................................................................................................ 2
3. RFP AND CONTRACT SCHEDULE AND SUBMITTAL INSTRUCTIONS................................................ 3
4. DESCRIPTION OF THE DESIGN-BUILD PROCESS ............................................................................ 4
5. PROJECT DESCRIPTION AND SCOPE OF WORK .............................................................................. 4
6. PROPOSAL CONTENT ....................................................................................................................... 7
7. CITY RESPONSIBILITIES ................................................................................................................... 8
8. GENERAL OBLIGATIONS OF DB ....................................................................................................... 8
9. INSURANCE REQUIREMENTS ........................................................................................................ 12
10. INSPECTION ................................................................................................................................... 12
11. CHANGE IN GMP AND CONTRACT TIME ........................................................................................ 12
12. PROJECT COMPLETION .................................................................................................................. 12
13. WARRANTIES AND GUARANTEES .................................................................................................. 13
14. MAINTENANCE OF RECORDS AND ACCOUNTING ......................................................................... 14
15. OWNERSHIP OF DOCUMENTS ....................................................................................................... 14
16. PUBLIC DISCLOSURE ..................................................................................................................... 14
17. PROPOSAL SELECTION PROCESS ................................................................................................. 14
18. PROPOSAL EVALUATION CRITERIA ................................................................................................ 15
19. CONTRACT TERMS AND CONDITIONS ........................................................................................... 15
ATTACHMENTS:
ATTACHMENT A – Preliminary Concept Drawings
ATTACHMENT B – City of Vista Pedestrian Ramp Checklist
ATTACHMENT C – City of Vista Stormwater Permit
ATTACHMENT D – City of Vista Encroachment Permit
ATTACHMENT E – Waste Managment Plan
ATTACHMENT F – Sample City of Vista Standard Agreement
EXHIBIT 2 – Insurance and Bonding Requirements
EXHIBIT 5 – Agreement to Comply with California Labor Law Requirements
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Foothill/Oak and Bobier/Calle Jules Roundabouts Project– CIP 8339 & 8358 2 DESIGN/BUILD SERVICES REQUEST FOR PROPOSALS
FOOTHILL/OAK AND BOBIER/CALLE JULES ROUNDABOUTS PROJECT – CIP 8339 & 8358
1. INTRODUCTION
The City of Vista (City or Agency) is soliciting proposals from qualified design-build entities for the Foothill/Oak and Bobier/Calle Jules Roundabouts Project– CIP 8339 & 8358 (Project). The first proposed roundabout is located at Foothill Drive and Oak Drive (CIP 8339). The second proposed roundabout is located at Bobier Drive and Calle Jules (CIP 8358). The two proposed roundabouts constitute the Project, and every requirement and provision in this RFP always apply to both roundabouts, which are to be completed as one project. The selected design-build team (DB) will provide the City with project management, engineering design, construction and construction management services for the Project. This Request for Proposals (RFP) includes a description of the Project, scope of services, proposal requirements, criteria for selection and other relevant information.
The selected DB must provide a team for the Project comprised of a prime Class A General Engineering Contractor (Contractor), a professional Civil Engineering consulting firm (Engineer) as a subcontractor, and other subcontractors to perform construction that the Contractor is not licensed to perform or choses to subcontract. All DB entities must be licensed/registered in the State of California under their respective professions.
Interested DBs shall review and utilize existing data, previous relevant work and additional resources during the proposal phase, including studies and field investigations to determine the necessary level of effort required for the Project and for the Engineer to complete, sign and stamp the Project plans, specifications, and estimate, hereinafter referred as the Construction Documents.
As detailed in Sections 17 and 18 of this RFP, the award will be based on best value (i.e., experience, expertise, and fees), not lowest responsible respondent. Section 6 details the contents required in proposals submitted in response to this RFP.
2. PREVAILING WAGES
This Project is funded with local funds and does not require any special project reporting or procedures. However, payment of prevailing wages and compliance with the California Labor Code Sections 1770 et seq is required for this Project.
It shall be mandatory upon the Contractor to whom the Contract is awarded, and upon all subcontractors under the Contractor, to pay not less than the general prevailing rates of wages to all workers employed in the execution of this Contract in accordance with the provisions of the California Labor Code and general law. Certified payroll on an approved compliance format is required for all work under this Contact and shall be submitted directly to the Labor Commissioner’s Office as required by law.
In accordance with the requirements of Section 1726 of the Labor Code, the Agency will ensure that public works contractors pay prevailing wages and are in compliance with public works laws and will report any suspected violations to the Labor Commissioner.
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Foothill/Oak and Bobier/Calle Jules Roundabouts Project– CIP 8339 & 8358 3 In accordance with the requirements of Section 1727 (a) of the Labor Code, the Agency will withhold and retain all amounts required to satisfy any Civil Wage and Penalty Assessment.
Information on the current prevailing wages can be obtained by contacting the State of California, Department of Industrial Relations, Division of Labor Statistics and Research, 45 Fremont Street, Suite 1160, San Francisco, California, 94105, (415) 703-4774 or from the California Department of Industrial Relations’ internet website at http://www.dir.ca.gov .
3. RFP AND CONTRACT SCHEDULE AND SUBMITTAL INSTRUCTIONS The City’s schedule for the RFP selection process is as follows:
Milestone Completion Date
City Issues RFP June 29, 2023
Deadline for Questions July 27, 2023 at 4:00 PM
Proposals Due August 10, 2023 at 4:00 PM
DB Shortlist and Interview (If Needed) August 24, 2023
Notice of DB Selection August 29, 2023
Complete Negotiation of Contract September 5, 2023
City Council Award (Tentative) October 10, 2023
All dates are subject to change, and the City reserves the right to extend the date by which proposals are due.
All DB teams must create an account on the City’s Electronic Bidding System, OpenGov Procurement to submit a proposal and receive addenda. Consultants can register using the ‘Sign Up’ link at the top of the page at:
https://secure.procurenow.com/portal/cityofvista
Once registered proposers may obtain bid materials and view submission procedures for this solicitation through the OpenGov Procurement website.
No hard copy proposals will be accepted. Once registered, DB teams must download the RFP while logged in under their own name and identification number to appear on the Electronic Prospective Bidders List as a “Prospective Bidder.” DB teams that fail to download the RFP will not appear on the Electronic Prospective Bidders List and their Proposal will be considered non-responsive. If a DB is unable to register or download the RFP from OpenGov Procurement, a DB representative should contact OpenGov Procurement to troubleshoot the problem.
All proposal documents must be uploaded using OpenGov Procurement prior to the Proposal Due Date as instructed in this solicitation. Once file(s) have been uploaded and the Submission Status shows as “Submitted” the submission is complete.
All Project related questions and requests for clarifications, changes, exceptions, and deviations to the terms and conditions set forth in this solicitation shall be submitted via “Q&A” through the City’s Electronic Bidding System, OpenGov Procurement. All questions must be submitted by the Question Submission Deadline.
To be considered, proposals shall be submitted through OpenGov Procurement no later than 4:00 PM on THURSDAY, August 10, 2023. The OpenGov Procurement clock shall be the official time keeping clock.
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Foothill/Oak and Bobier/Calle Jules Roundabouts Project– CIP 8339 & 8358 4 4. DESCRIPTION OF THE DESIGN-BUILD PROCESS
The services to be provided by the selected DB are to be performed in two phases. Phase I is for the engineering design of the Project and Phase II is for construction. The selected DB shall provide a Project Cost Estimate with their proposal as detailed in Section 6.G below.
Phase I – Design of the Project shall begin on the working day following the date that the Phase I contract is awarded by the City (Contract Date).
At 90% Phase I Construction Documents completion, a Guaranteed Maximum Price (GMP) will be established for Phase II Construction based on the Project Cost Estimate, which will include, but not be limited to, the cost for all labor, equipment, and materials to construct the Project in accordance with the Construction Documents (scope in Section 5 below), all applicable rules, regulations and laws. After the City formally approves the 100% Phase I Construction Documents, GMP, and the amendment to the Phase I Contract needed to add the Phase II work, City shall issue to DB a written Notice to Proceed with Phase II Services (NTP).
The DB shall provide line items for bonding, insurance and 5% DB contingency in the Project Cost Estimate. The 5% DB contingency shall be a percentage of the cost of construction defined as the total sum of trade contracts (subcontractors), materials (purchase orders), equipment, self- performed work, and general conditions. The DB contingency shall not be applied to bonds or contingency amounts. Any costs incurred by the DB in excess of said GMP shall be the sole responsibility of the DB, unless a Change Order is approved by the City. Any Savings at the end of the Project will be deducted from the GMP and returned to the City. The total cost for Phases I and II shall not exceed DB’s Project Cost Estimate as described in Section 6.G below.
5. PROJECT DESCRIPTION AND SCOPE OF WORK
The DB will design and construct two roundabouts, medians, street lighting, ADA curb ramps, curb and gutter, sidewalk, signing & striping, and erosion control at two intersections. The first location is the intersection of Foothill Drive & Oak Drive. The second location is the intersection of Bobier Drive and Calle Jules. Please see detailed scope of work below.
5.1 Phase I – Design Scope of Work and Deliverables
Phase I will result in the production of Construction Documents by the DB, signed and stamped by the engineering consultant for the Project. Phase I tasks are to include, but not be limited to, the following:
A. Provide a Phase I Project schedule per Section 6.F below. All items in Phase I must be completed within 180 calendar days of the Contract Date.
B. Schedule and hold an initial kickoff meeting with City staff and subconsultants to discuss the approach to the project, scope of work, schedule and address any questions or requests for information from the consultant or subconsultants. Produce and distribute meeting agenda and minutes.
C. Hold up to four additional formal meetings with City staff to develop the design of the project, resolve design issues, discuss staff comments on plans, estimate, and document submittals, discuss progress and address any other issues. It is important that the design of the project is developed in coordination with the City to ensure that the City’s goals and objectives are 10/24/2023 C4 60 of 130
Foothill/Oak and Bobier/Calle Jules Roundabouts Project– CIP 8339 & 8358 5 met. These meetings are to be held after Conceptual Design, 60%, 90%, and 100%. Produce and distribute meeting agenda and minutes.
D. Maintain open and regular communication with City staff and subconsultants. Hold informal bi-weekly meetings.
E. Perform a record search with the City and utility companies and show all existing utilities on the improvement plans. The City holds a monthly utility coordination phone meeting that facilitates easy access to the utility companies that the DB team may take advantage of and is encouraged to attend.
F. Conduct design surveying to include identification of adjacent right-of-way and property lines, topographic features, and elevations. Establish vertical and horizontal control for the project based on City of Vista benchmarks and first order control map, ROS 14023. Tie the public right-of-way and topography to NAD ’83 Coordinate system. Perpetuate monumentation within the limits of work.
G. Provide a conceptual exhibit showing proposed roundabout layout for each intersection.
Please reference Attachment A for preliminary concept drawings for each intersection that are for reference only and meant to be reworked. The conceptual layouts will be reviewed and approved by the City prior to proceeding with any further design. Make adjustments as requested by the City.
H. Provide a Basis of Design Memo with the conceptual exhibit which should describe the technical approach planned for the project. The memo should document the project understanding, principles, assumptions, rationale, criteria, and considerations used for decision making during design.
I. Conduct analysis of the geometric layout of the roundabouts to include but not limited to design vehicle turning analysis and speed analysis.
J. Provide design plans to the City for review at 60%, 90% and 100% design levels. Each roundabout design plan will be separate and will have its own DWG number assigned by the City. Plans to be prepared at 1”=20’ scale using City of Vista standard templates and each set will include:
i. Title Sheet and detail sheets containing general notes, special notes, special provisions, typical sections, construction details, etc. ii. Improvement Plan Sheets will show all pertinent aspects of the roundabout design including but not limited to street and sidewalk improvements, existing utilities, adjustments to manholes and valve boxes, utility relocation if necessary, modification of existing storm drain inlets/pipe, and construction notes that also indicate material types to be used. New curb ramps and existing curb ramps in need of upgrade to current ADA standards may be schematically shown and called out referencing the San Diego Regional Standard Drawings (SDRSD). Construction of curb ramps to meet ADA standards and in accordance with design guidelines in the City’s Pedestrian Ramp Checklist in Attachment B.
iii. Signing and Striping Plans
iv. Street Light Modification Sheets will show all pertinent aspects of moving or adding street lights to include but not limited to existing utilities (including overhead), lighting hardware, new conduits, pullboxes, and construction notes. v. Erosion Control Sheets will show a schematic erosion control plan with specific erosion control measures and temporary BMPs called out at specific locations where excavation is proposed, similar to other City of Vista projects, and construction notes.
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Foothill/Oak and Bobier/Calle Jules Roundabouts Project– CIP 8339 & 8358 6 K. Analyze the drainage patterns and flowline after the plan and profile layouts are developed to ensure that the streets and private properties will drain properly. Adjust the design to include drainage features or grading work to ensure proper drainage is maintained.
L. Submit conceptual layouts, 60%, 90% and 100% plans to utility companies and request a conflict check. Coordinate with utility companies who have utilities in conflict with the proposed improvements. Obtain pothole information for utility conflicts and adjust locations of facilities to avoid or minimize conflicts if possible. Request relocation of utility facilities where conflicts cannot be avoided. Obtain schedule of relocation design and construction from utility companies.
M. Provide a 60% and 90% Project construction engineer’s estimate per Section 6.G below.
Make any updates to the estimate after 100% plans.
N. Provide 90% Project specifications based on the City’s latest template. This is NOT a federally or state funded project. Make any updates to the specifications after 100% plans.
O. Propose a Phase II Construction GMP. The City and DB will negotiate a final GMP before entering into a Contract amendment for the Phase II Construction Services.
P. Address all City comments on the 90% Project Construction Documents and provide 100% Construction Documents signed and stamped by the engineering consultant as the engineer of work. The Construction Documents are considered 100% when the DB determines that their contents are complete and clear to cause all the Project components to be constructed per the Scope of Work.
Q. Coordinate storm drain inlet and pipe improvements at Foothill Drive and Oak Drive with a future improvement project to ensure compatibility of the proposed improvements with that project.
R. Provide project management, administration, and coordination through the design phase of the Project.
5.2 Phase II – Construction Scope of Work and Deliverables A. Provide a construction schedule per Section 6.F below. All items in Phase II Construction must be completed within 100 working days (Contract Time) of the date that the City issues an NTP.
This includes the DB submitting a Certificate of Completion and record drawings per Section 12 below.
B. Prior to the City issuing an NTP, schedule and hold an initial preconstruction meeting with City staff and subconsultants to discuss the approach to the project, project schedule, scope of work, schedule and address any questions or requests for information. Produce and distribute meeting agenda and minutes.
C. Maintain open and regular communication with City staff and subconsultants. Hold bi-weekly meetings to provide updates to the schedule, address any questions or requests for information. Produce and distribute meeting agenda and minutes.
D. Obtain a Faithful Performance Bond and a Payment Bond each covering 100% of the total cost stated in the approved final GMP.
E. Provide a City of Vista Stormwater Permit (Attachment C).
F. Obtain a no-fee City Encroachment Permit (Attachment D).
G. Submit a Waste Management Plan (Attachment E).
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Foothill/Oak and Bobier/Calle Jules Roundabouts Project– CIP 8339 & 8358 7 H. Provide traffic control plans prepared by a California licensed Traffic Control Services Consultant (C31 Contractor’s License – Construction Zone traffic Control Contractor), NOT by a California registered Civil or Traffic Engineer.
I. Implement traffic control as approved in the traffic control plans and perform utility potholing.
J. Provide construction staking through the professional surveying firm retained in Phase I.
K. Implement traffic control as approved in the traffic control plans and construct the improvements in the Project Construction Documents.
L. Provide as-built drawings (see Section 12 below).
M. Perform construction management and administration services throughout the construction of the Project.
6. PROPOSAL CONTENT
The proposal should be concise, well organized and demonstrate the DB’s qualifications and experience applicable to the Project. The proposal shall be inclusive of resumes, graphics, forms, pictures, photographs, dividers, front and back cover, cover letter, etc. Font size should be 12- point on 8.5” X 11” paper size with 1” margins. Proposal shall be limited to 15-pages, excluding dividers and front and back covers.
Proposals submitted in response to this Project RFP shall be in the following order and shall include:
A. A brief cover letter not to exceed one single-spaced page.
B. Statement of qualifications to include a synopsis of qualifications; a list of similar contracts; a brief description and time period of the services; and at least one reference for each contract for the prime and subcontractor (design consultant).
C. Scope of work.
D. Approach, methodology, or work plan to be used to accomplish the scope of work.
E. Staffing structure/chart and resumes for key staff (including subs).
F. Project Schedule. Include all Project deliverables with the timeline for each task and sub-task based on the scope of work for both the design and construction phases.
All items in Phase I Design must be completed within 180 calendar days of the Contract Date.
All items in Phase II Construction must be completed within 100 working days of the date that the City issues an NTP. This includes the DB submitting a Certificate of Completion and record drawings per Section 12 below.
G. Project Cost Estimate
i. Provide a comprehensive cost estimate including all related costs for the Project. ii. Include cost breakdowns by Project Phase (i.e., Design and Construction) as follows:
Design Phase I: Services for Phase I shall include, but not be limited to, Project design, cost estimating, development of specifications, field reviews, constructability review, surveying, subcontractor procurement and procurement of long lead items.
Construction Phase II: Provide all supervision, labor, equipment, technical expertise, safety equipment and measures, traffic control, storm water pollution prevention measures, 10/24/2023 C4 63 of 130
Foothill/Oak and Bobier/Calle Jules Roundabouts Project– CIP 8339 & 8358 8 bonds, construction staking, material submittal review, construction management and all other labor and material needed to result in the complete construction of the Project and produce two fully operational roundabouts per the Scope of Work and Construction Documents.
iii. The Project Cost Estimate will be used to establish a GMP once 90% Construction Documents are completed during Phase I Design.
iv. Clearly note all assumptions that were used to create the estimate and clearly note areas of concern.
v. Cost of Work Multipliers (Fee): Based on the scope and size of the Project, propose an overhead and profit percentage rate and any other multipliers such as liability insurance to be applied to the cost of work. This rate would apply to each major phase of the Project as it is released and subsequently bid to subcontractors. vi. Change Orders: Indicate an overhead and profit percentage rate to be used on subsequent changes to the major phases of the Project. The negotiated rate shall also apply to deductive changes.
vii. Payment Bond, Performance Bond, and Insurance.
H. Exceptions to Project Information
The DB shall certify that it takes no exceptions to the Project information including the Sample Agreement included in Attachment F. If the DB does take exception(s) to any portion of the document, the specific portion to which exception is taken shall be identified and explained.
7. CITY RESPONSIBILITIES
The City will be responsible for the following:
A. Furnish all reasonably available records and information, including as-built drawings.
B. Provide staff support.
C. Return of Project document reviews within 10 working days, shown as milestones on DB’s Project Schedule.
8. GENERAL OBLIGATIONS OF DB
The selected DB shall be obligated as follows:
A. Provide all supervision, labor, equipment, technical expertise, safety equipment, and service operations to complete the Project.
B. At all times in performing its services, design and deliver the best possible Project consistent with the standard of care that satisfies the time, monetary, quality, and design parameters set forth in this RFP and the Design/Build Contract.
C. Design and construct the Project on time, consistent with timeframes set forth in the Project Schedule, and in such a manner that the GMP or Contract Time of the Project shall not be exceeded, except by written Change Order as provided in the Design/Build Contract. DB shall provide a master accounting system and matrix using software acceptable to City that will be updated, expanded, and provided to the City monthly as the Project develops.
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Foothill/Oak and Bobier/Calle Jules Roundabouts Project– CIP 8339 & 8358 9 D. Perform all services as expeditiously as is consistent with reasonable skill and care and shall complete the services within each and all of the time periods set forth in the Project Schedule.
E. Any subcontractors performing Project construction must be appropriately licensed by the California Contractors State License Board and any other required agency.
F. Perform or subcontract the design services for the Project utilizing qualified, licensed, and sufficiently experienced civil engineering firm (“Design Consultants”) as identified in the Proposal. DB shall not be permitted to substitute any design consultant unless authorized by City. The fact that the City approves the subcontracting of any such services will in no way relieve the DB of any of its obligations or responsibilities under this RFP or the Design/Build Contract.
G. Ensure that DB team personnel always conduct themselves in a professional manner.
Personnel shall be courteous, neat in appearance, and wear visible identification including all personal protective equipment. All equipment must display their company identification, including any subcontractors.
H. Comply with the California Fair Employment and Housing Act and all other State, Federal and local laws including, but not limited to, those prohibiting discrimination on account of race, color, national origin, religion, age, sex, or handicap.
I. Take all reasonable steps during the course of the Project so as not to interfere with the ongoing operation of streets and the adjacent residences, businesses, and facilities, including but not limited to the following:
i. Not interfere with pedestrian and vehicular access and provide reasonable accommodation when necessary if impeded by Project work.
ii. Take all reasonable steps during the course of construction and ensure that all work conforms to the City of Vista noise ordinance unless authorized by the designated City representative. The DB shall ensure all DB team personnel comply with all relevant OSHA, Cal/OSHA, and labor and industrial work safety regulations at all times they are on the Project Site. The DB is responsible for implementing confined space entry procedures in accordance with all applicable laws and regulations.
J. Study all applicable laws, codes, ordinances, rules, orders, regulations, and statutes affecting the Project, including but not limited to, zoning, environmental, building, fire and safety codes and coverage, and lien laws, and comply with them in performance of its services. DB shall ensure that the Project design conforms to all applicable federal, state, and local laws, statutes, ordinances, rules, regulations, orders, or other legal requirements, (collectively “Governmental Requirements”) existing as of the Contract Date. However, the City recognizes that Governmental Requirements and their interpretations by governmental officials (“Code Authority”) are often subject to change at any time, even after the Contract Date or issuance of the NTP. If, after the Contract Date or issuance of the NTP, modifications to the Project are required because of a change in Governmental Requirements or their interpretation by a Code Authority which had not previously been given, or which if given, was different than a prior interpretation of a Code Authority, DB shall make the required modifications to comply with the same. However, in the event of such an occurrence the compensation to DB and the associated design and pre-construction schedule may be subject to an adjustment. Nothing contained in this paragraph shall relieve DB of its obligations to modify the Project at its own 10/24/2023 C4 65 of 130
Foothill/Oak and Bobier/Calle Jules Roundabouts Project– CIP 8339 & 8358 10 expense where DB has failed to design and/or construct the Project in compliance with Governmental Requirements applicable as of the Contract Date.
K. Obtain all permits necessary to complete the Project. The City shall reimburse cost of permits, except that DB shall be responsible for obtaining and paying for all permits normally obtained by the trades or subcontractors.
L. Adhere to the provisions of all permits and rules and regulations, including but not limited to those from the 2012 Edition of the Standard Specifications for Public Works Construction and most recent Supplement (“Greenbook”) and from the City of Vista.
M. Comply with all licensing requirements of the State of California and the City of Vista.
N. Use reasonable care to avoid damaging existing improvements, buildings, equipment, and vegetation adjacent to the Project Site. If DB causes damage to any of this property, DB shall replace, or repair said property at no expense to City and shall not be a basis for seeking an adjustment to the GMP or Contract Time. DB agrees to indemnify City for all fines, penalties, liabilities, cost imposed upon City, its officers, employees, and agents as a result of this Project.
O. Perform Quality Control (“QC”). Review the Construction Documents to identify and correct errors and omissions and reduce the quantity of Change Orders during construction. Include a detailed review of drawings and designs relative to applicable laws and standards.
P. Be fully responsible for damages and liabilities resulting from errors or omissions below the standard of care defined in subsection ‘R’ below by DB or DB’s agents, employees, design consultants and contractors; such costs, damages and liabilities shall not be chargeable to the City nor shall they be a basis for seeking an adjustment in the GMP or Contract Time.
Q. DB agrees to fully assume all risks and costs associated with performing the services and meeting the obligations under the Design/Build Contract. DB shall verify actual site conditions, topography, and facility conditions.
R. DB shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. Compliance with this section by DB shall not in any way excuse or limit DB’s obligations to fully comply with all other terms in the Design/Build Contract.
i. Contractor’s License. DB warrants that at least one member of the DB team shall be licensed by the California Contractor’s State License Board a Class A General Engineering Contractor. DB is to provide a list of the responsible people within their organizations performing services, which shall include their qualifications and their function, for approval by the City prior to start of services. City and DB shall establish “key personnel” who shall remain on the Project until Final Completion. If any such “key personnel” leave the employment of DB, City shall have the right to approve the replacement personnel assigned to this Project. DB shall comply with all licensing requirements of the State of California and City of Vista.
ii. Project Manager and Project Design Engineer. Throughout all phases of the Project hereunder, the individual project manager, and project design engineer shall be as reflected in the Project Schedule. So long as the Individual Project Manager and Project Design Engineer remain in the employ of the General Contractor and/or Engineer, such 10/24/2023 C4 66 of 130
Foothill/Oak and Bobier/Calle Jules Roundabouts Project– CIP 8339 & 8358 11 persons shall not be changed or substituted from the Project or cease to be fully committed to the Project as deemed necessary by the City in its reasonable discretion, without the prior written consent or instruction of the City.
iii. City Right to Remove Project Manager, and Project Design Engineer. Notwithstanding the foregoing provisions, if the Individual Project Manager or Project Design Engineer proves not to be satisfactory to the City, upon written notice from the City to the DB, such person or persons shall be promptly replaced by a person who is acceptable to the City in accordance with the procedures set forth below.
iv. Replacement Selection of Project Manager and/or Project Design Engineer. Within five (5) working days after receipt of a notice from the City requesting the replacement of any Individual Project Manager or Project Design Engineer, or promptly following the discovery by the Design Build Team that any Individual Project Manager, or Project Design Engineer is leaving the employ of the Contractor or Engineer, as the case may be, the replacement/substitution (together with such person’s resume and other information regarding such person’s experience and qualifications) shall be submitted for approval by City. The replacement/substitution shall commence work on the Project no later than five (5) calendar days following the City’s approval of such replacement, which approval shall not be unreasonably withheld.
S. The City assumes risks for unanticipated subsurface site conditions provided DB notifies City in writing within five (5) calendar days of discovery if DB believes it has uncovered or revealed a condition which:
i. Is of an unusual nature and differs materially from conditions ordinarily encountered and generally recognized as inherent in the work required by this RFP and the Design/Build Contract.
ii. Upon receipt of a written notice, City shall promptly investigate and if it determines the conditions do materially differ, requiring a change in the Work, City shall commence the processing of a Change Order as provided in the Design/Build Contract. If City determines there is no bona fide Work scope change or is a minor change, which does not impact GMP or Contract Time, City shall notify DB within ten (10) calendar days.
iii. DB shall not be entitled to an adjustment in the GMP or Contract Time if DB knew or should have known of the existence of such conditions at the time DB submitted and agreed to GMP or Contract Time.
T. DB agrees and acknowledges that the City Representative is the only person with authority to approve additions or modifications to Project. Any costs or delays resulting from or associated with additions or modifications implemented without the written authorization of the City Representative shall be borne exclusively by DB and not be grounds for an increase in the GMP or Contract Time, unless necessary to protect public health, safety, or property.
U. DB shall fully cooperate with City Representative and any of its agents assigned to this project.
V. The DB shall remain in compliance with the City of Vista Water Quality Protection Program and shall exercise every reasonable precaution to prevent the discharge of any material which is not solely storm water (i.e., rain events) to the storm drain system. The DB will be responsible for the complete cleanup of all material that is discharged from the project in violation of the 10/24/2023 C4 67 of 130
Foothill/Oak and Bobier/Calle Jules Roundabouts Project– CIP 8339 & 8358 12 discharge rules. Please visit https://www.cityofvista.com/stormwater for information.
W. Payment of prevailing wages is required for the Project per Section 2 above.
X. All DB team members must have a valid business license with the City of Vista prior to the Design/Build Contract being awarded to the selected DB.
9. INSURANCE REQUIREMENTS
The DB shall comply with the insurance and bond provisions set forth in Exhibit 2 of Attachment F.
10. INSPECTION
It shall be the responsibility of DB to call for, coordinate and schedule all Project inspections by the City. Any required special inspections shall be the responsibility of the DB.
City, its consultants, subcontractors, independent testing laboratories as well as other governmental agencies with jurisdictional interests will have access to the Project site at reasonable times for this observation, inspecting and testing. The DB shall provide them proper and safe conditions for such access and advise them of DB’s safety procedures and programs for compliance.
The DB is responsible for establishing, maintaining, and correcting all Project site conditions to comply with all applicable permit conditions and regulatory requirements. City staff will conduct routine site inspections, provide inspections reports and corrective actions to the DB, as necessary, to ensure the City maintains compliance for all stormwater requirements, monitoring and reporting.
11. CHANGE IN GMP AND CONTRACT TIME
The GMP and Contract Time may only be changed with a written Change Order using the procedures provided in the Design/Build Contract. Change Orders shall be issued only under the following circumstances:
i. The City directs DB to perform Additional Services or City Changes. ii. For reasons expressly provided elsewhere in the Design/Build Contract.
12. PROJECT COMPLETION
Substantial Completion shall be that stage in the progress of the construction when all work on the Project is sufficiently complete in accordance with the Construction Documents so that the City may fully utilize the entire Project. Substantial Completion shall further mean that all goods, services, and systems to be provided under the terms and conditions of the Construction Documents are in place and have been initially tested, and are operationally functional, subject only to final testing and normal Final Completion Punchlist Work.
Final Completion shall be deemed to occur on the last of the following events:
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Foothill/Oak and Bobier/Calle Jules Roundabouts Project– CIP 8339 & 8358 13 A. Acceptance of the Project by the City.
B. Submission of all documents required to be supplied by DB to the City as outlined in the Design/Build contract, including but not limited to record drawing documents (As-Built Drawings), scope deliverables, and warranties.
C. Recordation of a Notice of Completion for the Project
The DB shall provide City with a Certificate of Completion, certifying to City under penalty of perjury that the Project has been completed in accordance with the Construction Documents, all applicable building codes and regulations, all permits, licenses, and certificates of inspection, use and occupancy, and ordinances relating to the Project.
The DB shall provide Project files to the City at the end of construction in the following forms:
A. One hard copy paper set of the Project As-Built design plans produced in AutoCAD and signed by the Engineer of Work.
B. One USB drive with all electronic unsigned AutoCAD, Word, and Excel files of the Project Construction Documents.
C. One signed PDF file of the Project As-Built design plans on the same USB drive in ‘B’ above.
As-Built Drawings are to be accurate and legible records showing all components of the Project and their locations.
The DB shall provide a copy of, or make available before destruction, all records (which includes all writings as defined in Evidence Code Section 250) to the City upon receipt or generation, which shall include a copy of DB’s filing protocol.
A copy of all approved submittals shall be forwarded to the City at the completion of the Project.
All information shall be assembled in such a fashion to fit into a standard file drawer and organized by CSI codes. This copy is in addition to those provided during the course of construction for comment.
13. WARRANTIES AND GUARANTEES
The DB warrants and guarantees to the City that materials and equipment incorporated into the Project will be new and that all work will be in strict accordance with the Construction Documents and will not be defective. All defective work, whether or not in place, will be rejected, by the City and must be corrected by the DB. DB shall not be entitled to an extension in Contract Time or increase in GMP because of any delay or increase in cost attributable to the rejection and correction of said work. Defective work may be rejected even if approved by prior inspection.
The warranty period shall commence when the Certificate of Completion is issued (irrespective of beneficial use by City prior to Final Completion) and extend one year after that date or whatever longer period may be prescribed by laws or regulations or by the terms of any applicable special guarantee or specific provision of the Construction Documents. The Design/Build contract will contain provisions addressing this issue and steps to correct defective work.
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Foothill/Oak and Bobier/Calle Jules Roundabouts Project– CIP 8339 & 8358 14 14. MAINTENANCE OF RECORDS AND ACCOUNTING
The DB shall maintain, during the Project implementation time and for a period of three years after completion of the Project, accurate and organized records of all costs of any type and all services performed for the Project. The City will have the right at any time including during the performance of all Phases of the Project to audit and copy all such records.
15. OWNERSHIP OF DOCUMENTS
Drawings, plans and specifications, and all reports, studies, tracings, maps, electronic files, and other documents prepared or obtained by DB while performing the work required by this Project Information shall be the property of the City, and DB shall convey and transfer all copyrightable interests in such drawings, plans and specifications, and documents to the City. Basic survey notes, sketches, charts, computations, and similar data prepared or obtained by DB shall, upon request, be made available to The City. The City agrees to use the original plans and drawings for purposes of this construction Project only and will not use the original plans or drawings in connection with any other construction project. City agrees to indemnify, defend, and hold harmless DB against any claims, losses, costs, or damages as a result of City's reuse or misuse of such plans, drawings and specifications. In the event of the return of the plans, drawings, or specifications to DB or its representative, DB shall be responsible for their safe return to the City.
DB shall be entitled to retain copies of the plans, drawings, and specifications for their files. Under no circumstances shall DB fail to deliver any draft or signed and sealed final plans, drawings, or specifications to City upon written demand by the City for their delivery, notwithstanding any disputes between DB and City concerning payment, performance of Design/Build Contract, or otherwise. This covenant shall survive the termination of the Design/Build Contract.
16. PUBLIC DISCLOSURE
All proposals submitted in response to this Project Information become the property of the City and public records, and as such may be subject to public review. Under the California Public Records Act (California Government Code Section 6250 et seq.) records in the custody or control of a public entity generally must be disclosed unless the information being sought falls into one or more of the exemptions to disclosure set out in Government Code Sections 6254 through 6255. The cover letter of the proposal should contain a paragraph that states whether or not DB believes that its proposal does or does not contain information that falls into one of the exemptions of Government Code Sections 6254 through 6255 and whether or not DB considers such information to be confidential.
Note, City may be legally obligated to disclose the proposal to any party that requests it. Regardless of assertions of confidentiality, proposal contents may still be disclosed if City, or a court with jurisdiction, determines that such proposal is a public record requiring disclosure.
17. PROPOSAL SELECTION PROCESS
Award will be based on best value per evaluation criteria listed in Section 18, not lowest responsible respondent. Design and construction expertise, relevant team experience, experience in similar projects, rates, and fees, will be significant factors. The City reserves the right to discuss and negotiate scope, costs, and schedule as needed. At any time prior to the City of Vista executing a Design/Build Contract with the selected firm, if that DB cannot meet any of the RFP conditions, the City of Vista has the option of selecting another DB. Contracts will be awarded in accordance with the Vista Municipal Code.
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Foothill/Oak and Bobier/Calle Jules Roundabouts Project– CIP 8339 & 8358 15 Each Proposal will be reviewed to determine whether it is responsive to the RFP. Failure to comply with the requirements of this RFP may result in a Proposal being rejected as non-responsive.
However, at its sole discretion, the City may waive any such failure to meet a requirement of this RFP that is immaterial.
18. PROPOSAL EVALUATION CRITERIA
Selection of the DB will be based on best value, not on lowest responsible respondent. Proposals shall be evaluated and ranked based on best value as determined by the following significant factors and relative weights of importance:
i. 25% - Overall experience and technical competence of the firm(s) (including principal firm, joint venture-partners, and sub-consultants) and specific experience and technical competence on projects of a similar nature, considering the types of service required; the complexity of the project; references; and record of performance. ii. 20% - The strength and experience with projects of a similar nature of key personnel who will be dedicated to the Project.
iii. 20% - Rates and Fees including Cost of Work Multipliers, Preliminary Cost Estimate, Change Order rates, Payment and Performance Bond rates.
iv. 20% - Proposed methods and overall strategic plan to accomplish the work in a timely and competent manner, including Project Schedule.
v. 15% - Combination of the following factors:
a) Conformance to the specified Project Information requirements and format. b) Organization, presentation, and content of the submittal. c) Knowledge and understanding of the State and local environment and a local presence for interfacing with the City.
All evaluation criteria are subject to change via an addendum to this RFP.
19. CONTRACT TERMS AND CONDITIONS
Issuance of this Project Information does not commit City to award a contract nor to pay any costs incurred in the preparation of a response to this request. The City retains the right to reject any or all submittals. Selection is dependent upon the negotiation of a mutually acceptable contract with the selected DB. No modifications to the standard contract language will be granted.
Each submittal shall be valid for not less than one hundred and twenty (120) days from the date of receipt.
All insurance shall be provided at the sole cost and expense of the selected DB, unless the requirement is modified or waived by the City in writing. City reserves the right to modify the insurance limits or to substitute project insurance during contract negotiations. 10/24/2023 C4 71 of 130
ATTACHMENT A
Preliminary Concept Drawings
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KOA CORPORATION VISTA MASTER SAFE ROUTES TO SCHOOL PLAN │ 96
VISTA SAFE ROUTES TO SCHOOL MASTER PLAN
FOOTHILL OAK ELEMENTARY SCHOOL
Figure 5.8 - Foothill Drive & Oak Drive Mountable Circle
4. Foothill Drive & Oak Drive Mountable Circle
An alternative to a full roundabout at this location would be a traffic circle or a mini-roundabout configuration.
The construction of a mountable circle in the center of the intersection would provide a physical feature to deter vehicles from running the stop signs and from accelerating while still in the intersection. Median refuges would be provided for pedestrians with this configuration. The estimated cost to implement the mountable circle solution is $247,000.
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EXIST LARGE INLET
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City of Vista Roundabout Concept
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ATTACHMENT B
Pedestrian Ramp Check List
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Pedestrian Ramp Checklist
O:\Engineering\Department Only\CIP\MASTERS\CITY OF VISTA\MASTER CIP SPECIFICATIONS TEMPLATE\Appendices\Pedestrian Ramp Check List.doc Last Updated 9-9-20
For Construction of Curb Ramps in the City of Vista
When Curb and Gutter is being formed and placed, check the following:
No obstructions or objects like poles or pullboxes allowed in the ramp or landing areas, and avoid them in side slope areas;
Clear width of the ramp depression in the curb >= 48”, (preferred width >= 60”, per Caltrans); Depressed curb shall be flush with gutter flow line at bottom of the ramp (0” curb height and 0” lip); Slope along the curb depression (ramp cross-slope) 13.3% (>11.00% preferred); For perpendicular ramps, slope of sides of curb ramp (flares) = 1:48 (2.08%) ( = 1:48 (2.08%) ( = 48” (sidewalk clear width >= 48” behind curb, preferred width >= 60”, per Caltrans);
Slope of ramp runs = 48” from curb line;
Height differential across joints at gutter lip =96”, with a 48”x48” area at bottom of curb ramps inside the crosswalk striping and outside parallel vehicle traveled way.
10/24/2023 C4 76 of 130
ATTACHMENT C
Stormwater Management Permit and Instructions
10/24/2023 C4 77 of 130
F-14
Revis
ed
Marc
h
2003
CITY OF VISTA STORMWATER MANAGEMENT PERMIT INSTRUCTIONS To accompany all grading and/or building permit application(s).
In order to comply with the federal Clean Water Act, the state Water Code and City Ordinances, the City of Vista requires that property owners and/or contractors complete a Stormwater Management Permit prior to issuance of any grading and/or building permit(s). The purpose of a Stormwater Management Permit is to document Best Management Practices (BMPs) that will be implemented to prevent pollutants (including sediment) from entering stormwater conveyances and receiving waters. The Stormwater Management Permit becomes a part of the grading and/or building permit(s) and is subject to enforcement by City of Vista Inspectors and others. Stormwater Management Permits include the elements described in the following sections:
SECTION 1: REQUIRED INFORMATION – This section is used to provide the City with the basic information necessary to evaluate and prioritize project activities. Each of the items in this section must be completed, except projects with less than 1 acre of disturbed area are not required to have a Waste Discharge Identification Number (WDID). Grading projects with a disturbed area of greater than 1 acre must also meet additional requirements from the State Water Resources Control Board (SWRCB). Those additional requirements include filing a Notice of Intent (NOI) and preparation of a Stormwater Pollution Prevention Plan (SWPPP). Please note that watercourses and waterbodies include ephemeral drainages (i.e. those that are dry during part of the year).
SECTION 2: BEST MANAGEMENT PRACTICES – Best Management Practices (BMPs) must be selected and implemented to prevent erosion and construction-related materials, sediment, wastes and spills from entering stormwater conveyance system and receiving waters.
NOTE: It is the responsibility of the property owner and/or the contractor to determine the types of BMPs that will be used, as well as the levels of application necessary to comply with the City of Vista’s Stormwater and Grading Ordinances. Failure to prevent soil erosion and discharges of sediment and other pollutants from construction sites is subject to enforcement by the City, RWQCB or others.
At a minimum, the City requires that the BMPs designated as required in Table 1 (attached) be installed and maintained for all construction projects, as applicable. Additional BMPs listed in Table 1 may also be required in correlation to a project’s scope, potential for discharges and proximity to a watercourse or other receiving waters. The property owner and/or contractor must complete Table 2 (attached) indicating which BMPs will be used.
SECTION 3: CERTIFICATION – The property owner and/or contractor must sign this section certifying that they understand the City of Vista’s minimum requirements for stormwater management of construction activities and will implement, monitor and maintain the selected BMPs to ensure their effectiveness.
BMP manuals can be found at the City of Vista’s permit counter. These manuals include all of the referenced BMPs listed in Table 1 from the Caltrans Storm Water Quality Handbooks and the California Stormwater BMP Handbooks. The entire manuals may also be ordered directly from the following sources:
Caltrans Manuals California Stormwater BMP Handbook Caltrans Publications unit Municipal, Development/Redevelopment, Construction (916) 445-3520 & Industrial/Commercial (916) 324-8997 fax (510) 444-6771
10/24/2023 C4 78 of 130
F-16
CITY OF VISTA
STORMWATER MANAGEMENT PERMIT
This form must be submitted with all grading and/or building permit application(s).
SECTION 1. REQUIRED INFORMATION
Grading and/or Building Permit Application Number:
Project Name:
Name of Project Contact Person:
Title:
Phone #:
Grading Start Date:
Grading Finish Date:
Project Address or Location:
Project Start Date: Project Finish Date: APN NO.
Estimated amount of disturbed acreage:_________ (If equal to or greater than 1 acre, you must also provide a WDID number from the SWRCB) WDID _______________________
Are there any watercourses or waterbodies within 50 feet of the limits of soil disturbance? YES NO Does the project site have or propose slopes higher than 25 feet or steeper than 1:1? YES NO Does the soil type have high erosion potential (fine grain soil like sand, silt, fine disintegrated granite)? YES NO SECTION 2 BEST MANAGEMENT PRACTICES
The goal of stormwater management planning is to reduce pollution to the maximum extent practicable by implementing Best Management Practices (BMPs). There are five categories of BMPs: 1) Erosion control practices, and; 2) Velocity reduction, and; 3) Sediment control practices, and; 4) Offsite sediment tracking control, and; 5) General site and materials management. BMPs from each of the five categories must be used together as a system in order to prevent erosion, sediment, waste, spills, and residues from leaving the site. When properly implemented, monitored and maintained, BMPs will function to prevent pollutants (including sediment) from leaving the site. It is the responsibility of the property owner and the contractor to determine the types of BMPs that will be used, as well as the levels of application necessary to comply with the City of Vista’s Stormwater and Grading Ordinances.
Best Management Practice Table
Table 1 (attached) must be used to select those BMPs that will be used to prevent stormwater pollution. At a minimum, the City requires that the BMPs designated as required in Table 1 be installed on all construction projects. However, some BMPs may not be applicable to every project. For example, if storm drain inlets are not present, then Storm Drain Inlet Protection (BMP SC10) would not be applicable. Table 2 (attached) must be completed by the project proponent to indicate which BMPs will be used.
Grading and/or Building Plan(s) Best Management Practice Checklist The following applicable information shall be shown on the grading, building and/or erosion control plans:
Project boundaries
Footprint of any existing structures and facilities.
Footprint of all structures and facilities to be constructed. Limits of grading.
Site entrances and exits.
Areas of soil disturbance, cut and/or fill.
Vegetative areas to remain undisturbed.
Designated materials storage areas.
Existing and proposed grades of the site, along with any intermediate grades that will significantly affect site drainage patterns. Location(s) where runoff from the site may enter storm drain(s), channel(s), and/or receiving waters.
Please note that each of the items identified by a check (3) in Table 1 must be included on the plans, and labeled with the designation found in the tables (for example, SS-7).
10/24/2023 C4 79 of 130
SECTION 3. CERTIFICATION
The following certification must be signed before a Grading and/or Building Permit(s) will be issued.
I have read and understand that the City of Vista has adopted minimum requirements for stormwater management of construction activities. I certify that the BMPs I have selected from Table 1 and documented in Table 2 will be implemented to effectively minimize the potentially negative impacts of this project’s construction activities on stormwater quality. I further agree to install monitor, maintain or revise the selected BMPs to ensure their effectiveness.
I also understand that non-compliance with the City of Vista’s Stormwater and Grading Ordinances may result in enforcement by the City, including fines, citation, stop-work orders, cease and desist orders or other actions.
Property Owner /Contractor_________________________________________________ Date ________________________
10/24/2023 C4 80 of 130
Table 1.0 Minimum Construction Best Management Practices (BMPs) Daily
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GENERAL SITE MANAGEMENT
Employee & Subcontractor Training CA40 x xxxxxxxxxxxxxxxxxxxxxxxxxxxxx Materials Management
(select all applicable to site activities)3
Material Delivery / Storage WM-1 CA10 x x x x x x x x x x x xxx xxxx Material Use WM-2CA11 x x xxxxxxxx x xxx xxxx
Spill Prevention and Control WM-4 CA12 x x x x
Waste Management 3
Solid Waste Mgmt 3 WM-5CA20 x xxxxxxxxxxxxxxxxxxxxxxxxxxxxx Sanitary / Septic Waste Mgmt 3 WM-9CA24 x xxxxxxxxxxxxxxxxxxxxxxxxxxxxx Concrete Waste Mgmt 3 WM-8 CA23 x x x x x x xxxx x
Hazardous Waste Mgmt 3 WM-6 CA21 xxxx
Contaminated Soil Mgmt 3 WM-7CA22 xxxx xxxx xxxxx
OFFSITE SEDIMENT TRACKING
CONTROL
(must select 1 or more)3
Entrance/Exit Inspection, Cleaning x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x Stabilized Construction Entrance/Exit 3 TC-1ESC24x xxxxxxxxxxxxxxxxxxxxxxxxxxxxx Construction Road Stabilization TC-2ESC23x xxxxxxxxxxxxxxxxxxxxxxxxxxxxx Entrance/Exit Tire Wash TC-3 x xxxxxxxxxxxxxxxxxxxxxxxxxxxxx Vehicle & Equipment Management
Vehicle & Equipment Cleaning NS-8 CA30 x x x x x x x x x x x x x x x x x x Vehicle & Equipment Fueling NS-9 CA31 x x x x x x x x x x x x x x x x x x Vehicle & Equipment Maintenance NS-10 CA32 x x x x x x x x x x x x x x x x x x Construction Practices
(select all applicable to site activities)3
Water Conservation NS-1 x xxxxxxxxx x xx x xxxxx
Structure Construction & Painting WM-6 CA03 x x x x x x xxx Paving Operations NS-3 CA02 xxxxxx
Dewatering Operations NS-2 CA01 x x x x x xxxxx
VELOCITY REDUCTION
(select all applicable to site)3
Outlet Protection SS-10 ESC40 x x x x x x x x x x x x
Check Dams SC-4 ESC41 x x x x x x x x x x x
Flared Culvert End Sections SS-10 x x x x x x x x x x x Slope Roughering & Terracing NA ESC42 x x x x x x x x x x x Category of Activity
BMP
Identification
Number
Planting and
Landscaping
Storm Water Best Management Practices
(BMP)Earthwork Waterways
Site
Preparation and
Earthmoving
Construction or Relocation
of Below Ground Structures
and/or Utilities
Roadways,
Walkways and
Parking
Lots
Construction of
Above Ground
Structures
10/24/2023 C4 81 of 130
EROSION CONTROL
Site Planning Considerations 3
Scheduling 3 SS-1ESC01x xxx xxxxx xxxxxxxxxxxxxxxxxx
Preservation of Exist Vegetation 3 SS-2 ESC02 x x x x x x x x x xxxxxxxx Vegetation Stabilization
(must select 1 or more)3
Temp Seeding and Planting 3 SS-4 ESC10 x x xxxxxxxx
Temp Mulching 3 SS3,6,8 ESC11 x x xxxxxxxx
Hydroseeding 3 SS-4 x x xxxxxxxx
Vegetation Buffer Strips 3 NA x x xxxxxxxx
Physical Stabilization
(must select 1 or more)3
Dust Control 3 ESC21 xxxxxxxx xxx xxxxxxxxxx xxx
Geotextiles, Mats, and Fiber Rolls 3 SS-7 ESC20 x x xxxxxxxx Bonded Fiber Matrix 3 SS-5 x x xxxxxxxx
Soil Stabilizers 3 SS-5 x x xxxxxxxx
Temp Stream Crossing 3 NS-4ESC22 xxxx xxxxxx x xxxxxxx xx xxx Diversion of Runoff
Earth Dikes SS-9 ESC30 x x x x x x x x x x x x x x x
Ditches and Berms SS-9 xxx xxx xxxxx xx
Temp Drains and Swales SS-9 ESC31 x x x x x x x x x x x x Slope Drains SS-11 ESC32 x x x x x x x x x x x x
SEDIMENT CONTROL
(must select 1 or more)3
Silt Fence 3 SC-1ESC50 xxxx xx xxxxx xx
Straw Bale Barrier 3 SC-9ESC51 xxxx xx xxxxx xx
Sand Bag/Gravel Bag Barrier 3 SC-6, SCESC52 xxxx xxx xxxxx xx Brush or Rock Filter 3 NA ESC53 xxxx xx xxxxx xx
Storm Drain Inlet Protection 3 SC-10ESC54 xxxx xxx xxxxx xx Straw Wattles 3 SC-5 xxxx xx xxxxx xx
Sediment Trap 3 SC-3ESC55 xxxx xxx xxxxx xx
Sediment Basin (sized for 10-yr storm)3 SC-2ESC56 xxxx xx xxxxx xx
10/24/2023 C4 82 of 130
Table 2.0 Selected Construction Best Management Practices (BMPs) 3 Shown
on
plans?
If not shown on plans, why?
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GENERAL SITE MANAGEMENT
Employee & Subcontractor Training CA40
Materials Management
(select all applicable to site activities)3
Material Delivery / Storage WM-1 CA10
Material Use WM-2 CA11
Spill Prevention and Control WM-4 CA12
Waste Management 3
Solid Waste Mgmt 3 WM-5 CA20
Sanitary / Septic Waste Mgmt 3 WM-9 CA24
Concrete Waste Mgmt 3 WM-8 CA23
Hazardous Waste Mgmt 3 WM-6 CA21
Contaminated Soil Mgmt 3 WM-7 CA22
OFFSITE SEDIMENT TRACKING CONTROL
(must select 1 or more)3
Entrance/Exit Inspection, Cleaning
Stabilized Construction Entrance/Exit 3 TC-1 ESC24
Construction Road Stabilization TC-2 ESC23
Entrance/Exit Tire Wash TC-3
Vehicle & Equipment Management
Vehicle & Equipment Cleaning NS-8 CA30
Vehicle & Equipment Fueling NS-9 CA31
Vehicle & Equipment Maintenance NS-10 CA32
Construction Practices
(select all applicable to site activities)3
Water Conservation NS-1
Structure Construction & Painting WM-6 CA03
Paving Operations NS-3 CA02
Dewatering Operations NS-2 CA01
VELOCITY REDUCTION
(select all applicable to site)3
Outlet Protection SS-10 ESC40
Check Dams SC-4 ESC41
Flared Culvert End Sections SS-10
Slope Roughering & Terracing NA ESC42
EROSION CONTROL
Site Planning Considerations 3
Scheduling 3 SS-1 ESC01
Preservation of Exist Vegetation 3 SS-2 ESC02
BMP Identification
NumberStorm Water Best Management Practices
(BMP)
BMP Selected
Implementation Date Maintence Schedule Other Notes
10/24/2023 C4 83 of 130
EROSION CONTROL (continued)
Vegetation Stabilization
(must select 1 or more)3
Temp Seeding and Planting 3 SS-4 ESC10
Temp Mulching 3 SS3,6,8 ESC11
Hydroseeding 3 SS-4
Vegetation Buffer Strips 3 NA
Physical Stabilization
(must select 1 or more)3
Dust Control 3 ESC21
Geotextiles, Mats, and Fiber Rolls 3 SS-7 ESC20
Bonded Fiber Matrix 3 SS-5
Soil Stabilizers 3 SS-5
Temp Stream Crossing 3 NS-4 ESC22
Diversion of Runoff
Earth Dikes SS-9 ESC30
Ditches and Berms SS-9
Temp Drains and Swales SS-9 ESC31
Slope Drains SS-11 ESC32
SEDIMENT CONTROL
(must select 1 or more)3
Silt Fence 3 SC-1 ESC50
Straw Bale Barrier 3 SC-9 ESC51
Sand Bag/Gravel Bag Barrier 3 SC-6, SC-8 ESC52
Brush or Rock Filter 3 NA ESC53
Storm Drain Inlet Protection 3 SC-10 ESC54
Straw Wattles 3 SC-5
Sediment Trap 3 SC-3 ESC55
Sediment Basin (sized for 10-yr storm)3 SC-2 ESC56
10/24/2023 C4 84 of 130
ATTACHMENT D
Encroachment Permit
10/24/2023 C4 85 of 130
ENGINEERING DEPARTMENT
200 CIVIC CENTER DR.
VISTA, CA 92084
(760) 639-6111
CONTRACTOR'S MAILING ADDRESS:
ZIP
PHONE#:FAX#:
DESCRIPTION OF WORK:
START
DATE
ESTIMATED
COMPLETION DATE
[email protected]
[email protected]
TRAFFIC CONTROL PLANS (1 COPY)
SITE PLAN / VICINITY MAP (1 COPY)
JOB AND OR DRAWING NUMBER:
ASSESSOR'S PARCEL NUMBER (APN):
STATE LICENSE NUMBER
Please print required information
ENCROACHMENT PERMIT APPLICATION FORM
BUSINESS LICENSE NUMBER
ISSUED BY:DATE:
Version Date 06-29-18
NOTICE: THIS IS NOT AN ENCROACHMENT PERMIT - CONTRACTOR MUST SIGN ACTUAL PERMIT IN PERSON FOLLOWING CONTACTS:
CITY OF VISTA BUSINESS LICENSE (1 COPY)
CALOSHA PERMIT (1 COPY)
PLEASE SEND EMAIL SUBMISSIONS TO BOTH OF THE
JOB SITE ADDRESS OR DESCRIPTION:
WORKMAN'S COMP INSURANCE (1 COPY)
PERMIT #: PERMIT EXPIRATION DATE:
CITY
EMAIL ADDRESS:
CONTRACTOR:
DATE
48 HOUR NOTICE REQUIRED FOR
INSPECTION AND PRIOR TO START OF WORK
CALL (760) 639-6113
YOU MUST CALL UNDERGROUND SERVICE ALERT AT
(1-800-422-4133)
(2) WORKING DAYS PRIOR TO WORK
UNDERGROUND SERVICE ALERT NO. _________________
THIS PERMIT IS INVALID WITHOUT THIS NUMBER
A CASH SECURITY is required for trench excavation or any work not covered by construction bonds. CASH SECURITY shall be a minimum of $500 or equal to the cost of the proposed improvements within the City's right-of-way. CASH SECURITY may be returned as follows. For deposit amounts greater than $500, ninety percent (90%) of the CASH SECURITY may be returned upon completion and approval of the improvements by the City Engineer or his designee. The remaining ten percent (10%) or a minimum of $500 will be retained for a period of (1) year after the date that the work is completed. CASH SECURITY will be forfeited and used to correct defects, unacceptable work, trench failures or subsidence if corrective work is not completed within (5) working days after notification.
JOB SITE CONTACT:
CELL PHONE #
SIGNATURE
PRINT NAME
CONSTRUCTION PLANS (1 COPY)
LIABILITY INSURANCE (1 COPY)
THE FOLLOWING MUST BE INCLUDED OR EMAILED
WITH PERMIT APPLICATION:
I agree to save, keep and hold harmless the CITY OF VISTA, its officers and agents, from all damages, costs, or expenses in law or equity that may at any time arise or be set up because of damages to property, or of personal injury received by reason of or in the course of performing work, which may be caused by any willful or omission by the contractor, or any of the contractor's employees, or any sub-contractor. The CITY OF VISTA will not be liable for any accident, loss or damage to the work prior to its completion and acceptance.
I am aware of the provisions of Section 3700 of the Labor Code which requires every employer to be insured against liability, for workman’s compensation or to undertake self-insurance in accordance with the provisions of said Labor Code and I will comply with such provisions before commencing the performance of the work of this contract.
I hereby acknowledge that I have read this application and certify that the information given is correct. I agree to comply with all applicable city ordinances, state laws and with the requirements of this permit.
10/24/2023 C4 86 of 130
CITY OF VISTA
Requirements for Encroachment Permits
1. Must have State Contractor’s License.
2. Required License Types: For trenching, only A, C-34, C-36 & C42 allowed Additional License Types may be allowed for Surface Improvements
3. State of California Occupational Safety and Health Permit (CALOSHA).
4. Must submit applicable Underground Service Alert Number, if applicable.
5. Must have valid City of Vista Business License.
6. Must have Workers Compensation Insurance with the City of Vista as Certificate Holder.
7. Must have Liability Insurance with the City of Vista listed as the Certificate Holder and as Additional Insured.
If working in a street or easement, liability amount must be at least $1,000,000.00 For surface improvements - sidewalks or driveways amount must be $500,000.00
8. Must have $1,000,000.00 of pollution liability insurance if doing any work on or within public sewer manholes or public sewer mains.
PLEASE NOTE
Additional Insured Endorsements must be included
as attachments to the Certificate of Liability Insurance ***** Endorsements must cover Ongoing and Completed Operations *****
8. Permit Fee & Required Cash Trust Deposit: Minimum cost of permit is $1,437.00 plus a minimum cash trust deposit of $500.00 or an amount equal to the cost of the improvements being done within the City’s right-of-way. Minimum permit fee covers 3 hours of inspection time and 30 minutes for preconstruction meetings. Additional fees will be due if more than 3 hours of inspection time is required. Trust Deposit may be returned as follows. Ninety percent (90%) of Cash Deposit may be returned upon completion and approval of the improvements by the City Engineer or his designee. The remaining ten percent (10%) or a minimum of $500.00 will be held for a period of one year after the completion and final approval of the work and may be returned if the funds are not required to correct improvement defects, unacceptable surface work and trench failure or subsidence which is not corrected within (5) working days after notification.
APPROVABLE TRAFFIC CONTROL PLANS MUST TO BE SUBMITTED WITH PERMIT APPLICATION. ISSUANCE OF PERMIT MAY BE DELAYED IF NOT SUBMITTED.
TRAFFIC CONTROL PLANS MUST MEET ALL REQUIREMENTS MANDATED WITHIN THE CALIFORNIA MANUAL ON TRAFFIC CONTROL DEVICES.
Version Date 06-29-18
200 Civic Center Drive • Vista, CA 92084 • Ph 760-639-6111 • Fax 760-639-6112
10/24/2023 C4 87 of 130
CITY OF VISTA - Notice
200 Civic Center Drive * Vista, CA 92084 * 760-639-6111 * Fax 760-639-6112 Ver 01-03-19
The following General Conditions shall be considered a part of the City of Vista Encroachment Permit
General
1. Telephone Engineering Inspection at 760-639-6113, 48 hours prior to any work in the City right-of-way.
2. The Encroachment Permit shall be kept on the worksite during all ongoing work with a traffic control plan clearly showing all affected streets and sidewalks and how vehicular and pedestrian traffic is being handled in accordance with standards approved by the City.
3. The traffic control plan must be prepared by either a California licensed Traffic Control Services Consultant (C31 Contractor’s License – Construction Zone Traffic Control Contractor), or be a California registered Traffic or Civil Engineer.
4. The traffic control plan must be in accordance with the latest edition of the California MUTCD or the San Diego Regional Standard Drawings.
5. Traffic control shall be set and maintained per the City approved traffic control plan. Barricades shall be Type II Flashing, with reflectorized delineators and signs, if required for night operations.
Minimum lane width is 11 feet.
6. Flagmen shall have a safety vest with a Stop paddle.
7. No street shall be closed without the approval of the Traffic Engineer pursuant to a City approved traffic control plan.
8. Pedestrian walkway shall be left open or detoured using a minimum four-foot wide safe passage way pursuant to a City approved traffic control plan.
9. Normal working hours are 7:00 a.m. – 5:00 p.m., Monday through Friday unless indicated otherwise on the City approved traffic control plan.
10. Work in the public right-of-way shall be Monday through Friday only. No work is allowed on Saturday, Sunday or City Holidays without prior City approval.
11. Upon permit expiration, all work ceases until a new permit application is submitted and approved.
Existing permit time extensions requests must be submitted prior to expiration date of permit.
12. No construction vehicles shall be parked upon public sidewalks. VCC 10.24.040.
13. Prior to obstructing the ingress/egress of any residential, commercial or industrial site, permittee is required to give property owner and the City 24 hour notice, whenever the permitee’s operations hinders vehicular or pedestrian traffic, whether public or private. The permitee shall construct and maintain such structures as required to provide safe ingress/egress through a construction site. All public and private access restrictions must be clearly shown on the traffic control plan submitted by the contractor for City review and approval.
14. It is the permitee’s responsibility to protect against any dirt or debris from being deposited within the City storm drain system.
15. The permittee is required to immediately comply with all directives issued by the City Inspector to eliminate dust, mud or other site nuisance.
10/24/2023 C4 88 of 130
CITY OF VISTA - Notice
200 Civic Center Drive * Vista, CA 92084 * 760-639-6111 * Fax 760-639-6112 Ver 01-03-19
The following Materials and Standards shall be considered a part of the City of Vista Encroachment Permit
Materials and Standards
1. The permittee is responsible to perform all work and conduct operations per City approved editions of the SSPWC, SDRSD, CITY STDS, CODES, this PERMIT, and all other applicable requirements.
2. No trenches shall be left open overnight. Trenches shall either be plated with temporary AC seal, or backfilled, and have a minimum of 1½” of compacted temporary AC Cold Mix placed.
3. Sidewalk, driveways, wheelchair ramps shall be sawcut to an even line and be removed joint to joint.
4. Curb and gutter and cross gutter shall be removed as directed by the City Inspector.
Concrete removal will require a 1’ asphalt sawcut and repave.
5. Permanent asphalt placement shall be per City of Vista Std. Dwg. SRF-08A & 08B. Cold Planing for Final Cap required for all trenches.
6. All damaged roadway striping shall be replaced in kind.
7. All concrete placed shall be transit mix, unless waived by the City Inspector.
8. Two sack slurry backfill is required when tunneling under curb and gutter.
9. All subgrade (12” depth) and basegrade material shall be compacted to 95 percent density.
Sidewalk sub/base material shall be compacted to 90 percent density. Certification, including compaction testing, shall be provided by the Permitee unless waived by the City Inspector.
10. No excavated material shall be hauled to a site within the City of Vista, without City Inspector knowledge of the end haul location, and the appropriate permits.
11. Any continuous hauling operation will require a City approved Haul Route Permit, prior to commencing the haul. Hauling of dirt/rock etc. without this permit may subject this haul to an immediate Stop Work Notice.
12. Approved City materials for construction include:
a. Asphalt: Surface course – ½” Med. C2-AR-4000-RAP, Min. .10 thick Base course – ¾” Med. B-AR-4000-RAP
Berm – D2-AR-8000
[Performance Grade (PG) asphalt binder PG 64-10 may be substituted for AR-4000 asphalt binder]
b. Concrete for structures – 6/sack 3250 PSA min.
c. Concrete for curb and gutters, sidewalks, driveways – 520-C-2500 min. d. Base material for wheelchair ramps – 6” Class II/Caltrans 26-1.02B e. Street base material – Class II
f. Sidewalk base material – 6” Class II
g. Curing compound on all concrete – Type I SSPWC 303-5.6
All standards are considered minimum and may be revised by the City depending upon field considerations, standards and materials approved on a signed City plan, supercede above materials and standards. It is the permittee’s responsibility to understand and implement all Standards, Codes and other applicable requirements. 10/24/2023 C4 89 of 130
ATTACHMENT E
Waste Management Plan
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200 Civic Center Drive * Vista, CA 92084 * (760) 639-6105 * Fax (760) 639-6101 (Updated 05/2018)
Owner:
Contractor:
Job Address: Phone Number:
Permit # Estimated Cost of Project: $
Type of Project: New Construction Remodel or T.I. Residential Commercial Demolition (Check all that apply)
Cal Green 65% Non-Cal Green 50% Other _________________________ Non-hazardous construction waste generated during the course of this project shall be recycled and/or salvaged for re-use at a minimum of 65% per CALGreen Sec. 5.408.1. Failure to comply may result in a penalty fee up to $1,000. For projects which consist of mainly equipment and/or racking, that have a combined weight of new construction disposal that does not exceed 2 lbs. per square foot of building area affected by this permit, may be deemed to meet the 65% minimum requirement upon approval of Building Department.
Commercial additions less than 1,000 sq.ft., and interior remodels with valuations from $75,000 to $200,000 shall recycle not less than 50% per VMC 13.17.
ALTERNATIVE FORMS OF COMPLIANCE: (If selected, do not complete Tables 1 & 2 below) Construction waste shall not exceed 2 lbs. per s.f. of area. All receipts shall be provided to the Building Official prior to final. (This option not applicable for most construction projects.)
Square feet of construction area X 2 lbs. = lbs. of allowable waste.
I plan on using an EDCO roll-off bin. All receipts shall be provided to the Building Official prior to final.
Table 1 - Estimated Waste (To be filled out prior to permit issuance - refer to example on Page 2.)
MATERIALS lbs. of waste to be taken to
LANDFILL
lbs. of waste to be
RE-USED or RECYCLED
Waste Hauling Company or Re-Use Method
Asphalt / Concrete
Brick / Masonry
Cardboard
Drywall
Landscape Debris
Lumber / Wood
Metals
Mixed Waste
Trash / Garbage
Other:
TOTAL lbs.:
Estimated Percentage to be Re-Used or Recycled %
I certify that the information provided herein, to the best of my knowledge, is true and correct.
Contractor or Owner (print name)
Contractor or Owner (signature) Date Official Use Only Plan Approved Plan Denied Project Valuation Approved
Reviewed / Approved by:
Waste Management Plan
(for residential additions, projects w/valuation greater than or equal to $75,000, and all Demo permits)
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MATERIALS lbs. of waste taken to
LANDFILL
lbs. of waste
RE-USED or RECYCLED
Waste Hauling Company or Re-Use Method
(complete only if different than Table 1)
Asphalt / Concrete
Brick / Masonry
Cardboard
Drywall
Landscape Debris
Lumber / Wood
Metals
Mixed Waste
Trash / Garbage
Other:
TOTAL lbs:
Table 2 - Actual Waste (To be completed after construction.) Actual Percentage Re-Used or Recycled %
Official Use Only
65% Goal Achieved Alternative Compliance Achieved Penalty Paid $ 65% Not Achieved
50% Goal Achieved
50% Not Achieved
Reviewed / Approved by:
EXAMPLE: Use the following example as a guide to completing this form.
Percentage to be Re-Used or Recycled 77 %
Formula:
Total Re-used or Recycled X 100 = % Re-Used or Recycled (Total Combined Waste)
5070 X 100 = 77% Re-Used or Recycled
(1500 + 5070)
MATERIALS lbs. of waste to be taken to
LANDFILL
lbs. of waste to be
RE-USED or RECYCLED Waste Hauling Company or Re-Use Method Asphalt / Concrete 0 2000 Hauling Co.
Brick / Masonry 100 450 EDCO / Re-Used Brick On-site
Cardboard 0 150 Hauling Co.
Drywall 0 50 Hauling Co.
Landscape Debris 0 120 Mulched & Re-used On-site
Lumber / Wood 0 500 EDCO
Metals 100 400 EDCO / Hauling Co.
Mixed Waste 1000 500 EDCO
Trash / Garbage 300 0 EDCO
Other: Pool Gunite 0 900 Used as Crushed Base On-site
TOTAL lbs: 1500 5070
Since 77% exceeds the minimum requirement of 65%, this plan complies. 10/24/2023 C4 92 of 130
ATTACHMENT F
Sample Standard Agreement
10/24/2023 C4 93 of 130
00111420 1{
DESIGN / BUILD SERVICES FOR THE
FOOTHILL/OAK AND BOBIER/CALLE JULES ROUNDABOUTS PROJECT CIP NO. 8339 & 8358
THIS AGREEMENT is made and entered into as of ________________ (Contract Date) by and between the CITY OF VISTA (“City”), a chartered municipal corporation, and XXX (“Design Builder or DB”). City and DB are sometimes individually referred to as “Party” and collectively as “Parties”.
RECITALS
1. On XXX, a Request for Proposal (RFP) (Exhibit 3) was issued for design/build services for the Foothill/Oak and Bobier/Calle Jules Roundabouts Project – CIP 8339 & 8358; and
2. XXX firms submitted proposals and based upon the review of each proposal and interviews with the top firms, Design Builder was selected as the respondent who best met the evaluation criteria specified in the RFP including experience and technical competence, schedule, rates, and financial resources and with whom City could negotiate an agreement.
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein:
THE PARTIES AGREE:
Section 1: General Scope of Work to Be Performed by DB
1.1 In accordance with the terms set forth in this Agreement and the Design Build Proposal for the Foothill/Oak and Bobier/Calle Jules Roundabouts Project (Exhibit 1 attached hereto and incorporated herein), Foothill/Oak and Bobier/Calle Jules Roundabouts Project – CIP 8339 & 8358 shall include, but not be limited to all components outlined and described in Exhibit 1.
1.2 The services provided by the DB shall include, but not be limited to, all services outlined and described in this agreement and the design, and construction services within Exhibit 1.
1.3 The DB shall:
1.3.1 Perform design and pre-construction services (Phase I) on a time and materials basis for an amount not-to-exceed $XX, as specified in DB’s Project Cost Estimate. At 90% complete construction documents the DB shall propose a Guaranteed Maximum Price (GMP) which will include, but not be limited to, the cost for all labor, equipment, and material to design and construct Phase II of the Foothill/Oak and Bobier/Calle Jules Roundabouts Project – CIP 8339 & 8358 in accordance with all applicable rules, regulations, and laws. If the Parties agree to DB’s proposed GMP, or successfully negotiate an alternative GMP amount, the Parties shall enter into an amendment to this Agreement to fund and undertake Phase II of the Project. Under the amendment, the DB fee shall be XX% of the cost of construction defined as the total sum of trade contracts (subcontractors), materials (purchase orders), equipment, self-performed work and general conditions. Any costs incurred by DB in excess of the established GMP shall be the sole responsibility of the DB, unless a Change Order is approved by the City. Any savings resulting in the project being completed for less than the amount of the GMP shall belong to the City.
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Design / Build Services Agreement
Foothill/Oak and Bobier/Calle Jules Roundabouts Project – CIP 8339 & 8358
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1.3.2 Provide the proposed GMP to City by XXX, 20XX, and complete the Phase I design services by XXX, 20XX, including City approval of 90% construction drawing package, in accordance with the schedule set forth in Exhibit 1.
Section 2: General Obligations of City
2.1 City shall be obligated as follows:
2.1.1 Designate a representative (or representatives) who is/are authorized to act on behalf of City with respect to the Project, except as to those decisions that require authorization by the Vista City Manager or Vista City Council.
2.1.2 Make decisions with reasonable promptness to avoid delay in the orderly progress of DB’s services per the schedule in Exhibit 1.
2.1.3 At the request of DB, City will use its best efforts to provide DB with any available information about the Project Site (Exhibit 4) geotechnical soil conditions; it will, however, be the responsibility of DB to take all reasonable steps to verify all such information as it deems necessary to perform its services under this Agreement. City does not warranty to DB the accuracy or completeness of any such information.
2.1.4 Cooperate with DB in identifying, processing and securing required permits and licenses in a timely fashion; however, this duty to cooperate does not relieve DB of its primary obligations to identify, apply for and secure all necessary permits and licenses in a timely manner.
2.1.5 Make payments to DB in the amounts and in accordance with the terms set forth below.
2.1.6 Issue Certificate of Substantial Completion when City reasonably determines the Project has achieved Substantial Completion as defined below in Section 16.1.
2.1.7 Issue a Notice of Acceptance when City reasonably determines the Project has achieved Final Completion as defined in Section 16.2.
2.2 City Review Process. City shall review the Conceptual, 60%, 90% and 100% Construction Drawings (CD’s) including project specifications which shall allow construction of Project in conformity with the Program Document for the Project.
2.2.1 For each DB submission, City shall have ten (10) working days to review, approve, conditionally approve or deny said set of documents.
Section 3: General Obligations of DB
3.1 DB shall be obligated as follows:
3.1.1 Provide all supervision, labor, equipment, technical expertise, safety equipment, and service operations to complete the Project.
3.1.2 At all times in performing its services, design and deliver the best possible Project consistent with the standard of care that satisfies the time, monetary, quality and design parameters set forth in this Agreement.
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Design / Build Services Agreement
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3.1.3 Design and construct the Project on time, consistent with timeframes set forth in the Project Schedule (Exhibit 1), and in such a manner that the GMP or Contract Time of the Project shall not be exceeded, except by written Change Order as provided in Section 14. DB shall provide a master accounting system and matrix using software acceptable to City that will be updated, expanded and provided to the City monthly as the Project develops.
3.1.4 Perform all services as expeditiously as is consistent with reasonable skill and care and shall complete the services within each and all of the time periods set forth in the Project Schedule (Exhibit 1).
3.1.5 Any subcontractors performing Project construction must be appropriately licensed by the California Contractors State License Board or other required agency.
3.1.6 Perform or subcontract all design services for the Project utilizing qualified, licensed and sufficiently experienced engineers, and other professionals (“Design Consultants”) as identified in Exhibit 1. DB shall not be permitted to substitute any Design Consultant unless authorized by City. The fact that the City approves the subcontracting of any such services will in no way relieve the DB of any of its obligations or responsibilities under this RFP or this Agreement.
3.1.7 INTENTIONALLY LEFT BLANK
3.1.8 Ensure that DBT personnel conduct themselves in a professional manner at all times. Personnel shall be courteous, neat in appearance, and wear visible identification including all personal protective equipment. All equipment must display their company identification, including any subcontractors.
3.1.9 Comply with the California Fair Employment and Housing Act and all other State, Federal and local laws including, but not limited to, those prohibiting discrimination, on account of race, color, national origin, religion, age, sex or handicap.
3.1.10 Take all reasonable steps during the course of the Project so as not to interfere with the ongoing operation of the adjacent residences, businesses and facilities, including but not limited to the following:
3.1.10.1 Not interfere with pedestrian and vehicular access.
3.1.10.2 Take all reasonable steps during the course of construction to control dust in accordance with the provisions in the 2012 Edition of the Standard Specifications for Public Works Construction and most recent Supplement (“Greenbook”). Ensure that all work conforms to the City of Vista noise ordinance unless authorized by the designated City representative. The DB shall ensure all DBT personnel comply with all relevant OSHA, Cal/OSHA, and labor and industrial work safety regulations at all times they are on the Project Site. The DB is responsible for implementing confined space entry procedures in accordance with all applicable laws and regulations.
3.1.11 Study all applicable laws, codes, ordinances, rules, orders, regulations, and statutes affecting the Project, including but not limited to, zoning, environmental, building, fire and safety codes and coverage, and lien laws, and comply with them 10/24/2023 C4 96 of 130
Design / Build Services Agreement
Foothill/Oak and Bobier/Calle Jules Roundabouts Project – CIP 8339 & 8358
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in performance of its services. DB shall ensure that the Project design conforms to all applicable federal, state and local laws, statutes, ordinances, rules, regulations, orders or other legal requirements, (collectively “Governmental Requirements”) existing as of the date of this Agreement. However, the City recognizes that Governmental Requirements and their interpretations by governmental officials (“Code Authority”) are often subject to change at any time, even after issuance of a notice to construct. If, after the date of this Agreement, modifications to the Project are required because of a change in Governmental Requirements or their interpretation by a Code Authority which had not previously been given, or which if given, was different than a prior interpretation of a Code Authority, DB shall make the required modifications to comply with the same. However, in the event of such an occurrence the compensation to DB and the associated design and pre- construction schedule may be subject to an adjustment. Nothing contained in this paragraph shall relieve DB of its obligations to modify the Project at its own expense where DB has failed to design the Project in compliance with Governmental Requirements applicable as of the date of this Agreement.
3.1.12 Obtain all permits necessary to complete the Project. City shall reimburse cost of permits, except that DB shall be responsible for obtaining and paying for all permits normally obtained by the trades or subcontractors.
3.1.13 Adhere to the provisions of all permits and rules and regulations, including but not limited to those from with the 2012 Edition of the Standard Specifications for Public Works Construction and most recent Supplement (“Greenbook”) and the City of Vista.
3.1.14 Comply with all licensing requirements of the State of California and the City of Vista.
3.1.15 Use reasonable care to avoid damaging existing improvements, buildings, equipment and vegetation adjacent to the Project Site. If DB causes damage to any of this property, DB shall replace or repair said property at no expense to City and shall not be a basis for seeking an adjustment to the GMP or Contract Time.
DB agrees to indemnify City for any and all fines, penalties, liabilities, cost imposed upon City, its officers, employees and agents as a result of this Project.
3.1.16 Perform Quality Control (“QC”). Review the drawings and specifications in order to identify and correct errors and omissions and reduce the quantity of Change Orders during the course of construction. Include a detailed review of drawings and designs relative to applicable laws and standards.
3.1.17 Be fully responsible for damages, and liabilities resulting from errors or omissions below the standard of care defined in Section 3.1.19 by DB or DB’s agents, employees, design consultants and contractors; such costs, damages and liabilities shall not be chargeable to the City nor shall they be a basis for seeking an adjustment in the GMP or Contract Time.
3.1.18 DB agrees to fully assume all risks, and costs associated with such risks, in performing the services and meeting the obligations under this Agreement. DB shall verify actual site conditions, topography, and facility conditions.
3.1.18.1 Unanticipated subsurface site conditions.
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3.1.18.1.1 City assumes risks for unanticipated subsurface site conditions provided DB notifies City in writing within five (5) calendar days of discovery if DB believes it has
uncovered or revealed a condition which:
3.1.18.1.1.1 Differs materially form that indicated
in the geotechnical and geological reports.
3.1.18.1.1.2 Is of an unusual nature and differs
materially from conditions ordinarily
encountered and generally recognized as
inherent in the work required by this RFP and
the Design/Build Contract.
3.1.18.1.1.3 Upon receipt of a written notice, City
shall promptly investigate and if it determines
the conditions do materially differ, requiring a
change in the Work, City shall commence the
processing of a Change Order pursuant to
Section 14 of the Design/Build Contract. If
City determines there is no bona fide Work
scope change or is a minor change, which
does not impact GMP or Contract Time, City
shall notify DB within ten (10) calendar days.
3.1.18.1.1.4 DB shall not be entitled to an
adjustment in the GMP or Contract Time if DB
knew or should have known of the existence
of such conditions at the time DB submitted
and agreed to GMP or Contract Time; or the
existence of such condition could reasonably
have been discovered as a result of DB’s
obligations regarding geotechnical and
geological investigations and reports as
described in the RFP.
3.1.19 DB shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. Compliance with this section by DB shall not in any way excuse or limit DB’s obligations to fully comply with all other terms in this Agreement.
3.1.19.1 Contractor’s License. DB warrants that at least one member of the DB team shall be licensed by the California Contractor’s State License Board as a Class A General Engineering Contractor. DB is to provide a list of the responsible people within their organizations performing services, which shall include their qualifications and their function, for approval by the City prior to start of services. City and DB shall establish “key personnel” who shall remain on the Project until Final Completion. If any such “key personnel” leave the employment of DB, City shall have the right to approve the replacement personnel assigned to this Project. DB shall 10/24/2023 C4 98 of 130
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comply with all licensing requirements of the State of California and City of Vista.
3.1.19.2 Project Manager and Project Design Engineer. Throughout all phases of the Project hereunder, the individual project manager, and project design engineer shall be as reflected in Exhibit 1. So long as the Individual Project Manager and Project Design Engineer remain in the employ of the General Contractor and/or Engineer, such persons shall not be changed or substituted from the Project, or cease to be fully committed to the Project as deemed necessary by the City in its reasonable discretion, without the prior written consent or instruction of the City.
3.1.19.3 City Right to Remove Project Manager, and Project Design Engineer. Notwithstanding the foregoing provisions of Section 3.1.19, if the Individual Project Manager or Project Design Engineer, proves not to be satisfactory to the City, upon written notice from the City to the DB, such person or person shall be promptly replaced by a person who is acceptable to the City in accordance with the procedures set forth below.
3.1.19.4 Replacement Selection of Project Manager and/or Project Design Engineer. Within five (5) working days after receipt of a notice from the City requesting the replacement of any Individual Project Manager or Project Design Engineer, or promptly following the discovery by the Design Build Team that any Individual Project Manager, or Project Design Engineer is leaving the employ of the DB or Engineer, as the case may be, the replacement/substitution (together with such person’s resume and other information regarding such person’s experience and qualifications) for approval by City. The replacement/substitution shall commence work on the Project no later than five (5) calendar days following the City’s approval of such replacement, which approval shall not be unreasonably withheld.
3.1.20 DB agrees and acknowledges that the City Representative is the only person with authority to approve additions or modifications to Project. Any costs or delays resulting from or associated with additions or modifications implemented without the written authorization of the City Representative shall be borne exclusively by DB and not be grounds for an increase in the GMP or Contract Time (Exhibit 1) of this Agreement, unless necessary to protect public health, safety or property.
3.1.21 DB shall fully cooperate with City Representative and any of its agents assigned to this project.
3.1.22 The DB shall remain in compliance with the City of Vista Water Quality Protection Program and, where applicable, City of San Marcos and County of San Diego’s respective stormwater protection programs and shall exercise every reasonable precaution to prevent the discharge of any material which is not solely storm water (i.e., rain events) to the storm drain system. The DB will be responsible for the complete cleanup of all material that is discharged from the project in violation of the discharge rules.
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Section 4: Work Restriction and Bidding Requirement
4.1 DB shall determine how best to package portions of the work for purposes of bidding. DB shall be responsible for selectively bidding all construction work to others and for entering into subcontracts, in DB's own name, with the bidder who in DB’s discretion best meets the monetary, time, and performance requirement of the Project. DB is required to submit a summary of bid results for each bid package. DB shall be responsible for ensuring that these contracts fully comply with all applicable local, state and federal laws, some but not all of which are listed below.
4.2 DB shall hear and decide bid protests and shall develop and maintain bid protest procedures for that purpose. City shall be timely informed of all bid protests (prior to resolution) and the outcome of said protests.
Section 5: DB’s Phase I Services and Obligations – Design Services
5.1 DB’s services in Phase I shall include those specified in Section 5.1 of the RFP.
Section 6: DB’s Phase II Services and Obligations – Construction Services
6.1 Contingent on City’s approval during Phase I Conceptual, 60%, 90% and 100% CDs, Construction Schedule, GMP, and associated contract amendment, DB’s services in Phase II shall include those specified in Section 5.2 of the RFP.
Section 7: INTENTIONALLY LEFT BLANK
Section 8: INTENTIONALLY LEFT BLANK
Section 9: Additional Services
9.1 City will have the right to direct DB to perform Additional Services beyond those specified in this Agreement. DB may provide Additional Services only if authorized in writing, in advance, by City and after complying with Section 9.4. The City may propose changes to the Work of a subcontractor after the bid has been awarded. In the event of a change of this nature, DB will estimate the cost of the Change Order, assist City in developing drawings and specifications as necessary, solicit a revised bid, negotiate with the subcontractor, present a recommendation for a Change Order to City, and implement construction as approved by City.
9.2 For Additional Services which increase the Hard Construction Costs, or other reasonably necessary costs of the Project, DB shall be paid a DB fee of 15% of the total additional labor, equipment, and material costs. This fee includes DB’s office overhead, profit, bonds, and liability insurance. DB shall also be paid a DB fee of 5% of the total subcontractor costs. Regardless of the number of hierarchical tiers of Subcontractors, the 5% which DB fee shall be applied only once to the performing Subcontractor’s total costs. City will also pay any additional Subcontractor’s insurance or bonding costs.
9.3 For Additional Services, which result in an extension of the Substantial Completion date, DB and City shall negotiate the additional costs.
9.4 If at any time DB contends that it is being asked to perform Additional Services, it shall give City written notice 5 days prior to performing said services indicating that DB intends to seek additional compensation beyond the GMP. Furnishing advance written notice shall be a condition precedent to being able to seek additional compensation from City. 10/24/2023 C4 100 of 130
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Section 10: Bonds
10.1 DB shall furnish performance and payment bonds with the names of the obligees designated as the City in the amount set forth below, as security for the faithful performance and payment of all DB’s obligations under the Agreement. These bonds shall remain in effect at least until thirty (30) days after the filing date of Notice of Completion, except as otherwise provided by law or regulation or by this Agreement. DB shall also furnish such other bonds as are required by this Agreement.
10.1.1 The performance bond shall be in the amount of 100% of the GMP.
10.1.2 The payment bond shall be in the amount of 100% of the GMP amount.
10.2 All bonds shall be in the form prescribed by City and by such sureties which are authorized to transact such business in the State of California, listed as approved by the United States Department of Treasury Circular 570, and whose underwriting limitation is sufficient to issue bonds in the amount required by this agreement and which also satisfy the requirements stated in Section 995.660 of the Code of Civil Procedure, except as provided otherwise by laws or regulations. All bonds signed by an agent must be accompanied by a certified copy of such agent’s authority to act. Surety companies must be duly licensed or authorized in the jurisdiction in which the Project is located to issue bonds for the limits so required.
10.3 If the surety on any bond furnished by DB is declared bankrupt or becomes insolvent or its right to do business is terminated in any state where any part of the Project is located, DB shall within seven (7) days thereafter substitute another bond and surety, which must be acceptable to City.
Section 11: Insurance
11.1 The insurance provisions shall meet the requirements of Exhibit 2 which shall not be construed to limit DB’s indemnity obligations contained in this Agreement.
Section 12: Inspection
12.1 DB shall be responsible for all specialty inspection and material testing and inspections.
The City shall perform inspection with its own forces. It shall be the responsibility of DB, however, to call for, coordinate and schedule all inspections.
12.2 City, its consultants, subcontractors, independent testing laboratories as well as other governmental agencies with jurisdictional interests will have access at reasonable times for this observation, inspecting and testing. DB shall provide them proper and safe conditions for such access and advise them of DB’s safety procedures and programs so that they may comply.
12.3 DB will make, or have made, such inspections and tests, as the City deems necessary to see that the Work is being accomplished in accordance with the requirements of the Construction Documents or shall in any way limit or modify DB’ s indemnity obligations as provided for within this agreement. Unless otherwise specified, the cost of such inspection and testing will be bid out and carried as a line item in the construction cost. In the event such inspections or tests reveal non-compliance with the requirements of the Construction Documents, DB shall bear the cost of corrective measures deemed necessary by City, as well as the cost of subsequent re-inspection and re-testing. Neither observations by the City nor inspections, tests, or approvals by others shall 10/24/2023 C4 101 of 130
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relieve DB from DB’s obligations to perform the Work in accordance with the Construction Documents. DB shall give City timely notice of readiness of the Work for all required building inspections and shall cooperate with inspection and testing personnel to facilitate required inspections or tests. DB shall give at least 24 hours’ notice for inspections.
12.4 City has the right to stop or suspend Work activities which will conceal or cover up DB Work product which is to be inspected or tested, or which will interfere with the inspection or testing activities, for a reasonable time and DB will have no right to additional compensation.
Section 13: DB GMP for Services and Reimbursements
13.1 DB shall submit to City 90% CD’s for plan check. Upon the approval of the 90% CD’s, DB shall, within twenty (20) working days, submit a GMP for approval by City. The GMP shall include all Hard Construction Costs, DB Contingency Fund, Reimbursable Costs, and DB Fixed Fee for the complete design and construction of the entire Project as specified in the 90% CD’s; provided that:
13.1.1 Said GMP shall be supported by a detailed itemized breakdown that shows: the DB Fixed Fees and the expected Hard Construction Costs for each of the major trades on the Project which will include labor, material expenses, equipment costs, and a reasonable DB Contingency Fund. Said DB contingency fund shall not exceed 5% of the Hard Construction Costs.
13.1.2 All Hard Construction Costs included in the GMP are for direct Construction costs incurred in performing the work, including taxes, delivery and installation. City shall reimburse DB for the exact amount of subcontract, self-performed work or invoice amount.
No additional DB markup, handling fees, overhead, or other charges are to be added or paid except as otherwise set forth in this agreement. Upon Final Completion of the Project, any amount of Hard Construction Costs or DB Contingency Fund monies not utilized shall result in a deductive Change Order.
13.1.3 The GMP shall include a DB Contingency Fund which can be used by the DB with City approval. If the Parties mutually agree that there is a sufficient surplus, the DB Contingency Fund will be available to provide additional funds for Change Orders as provided for in Section 14 of this Agreement. This Contingency Fund will not be available for: (1) Work required due to DB’s and/or Contractors/subcontractors failure to perform according to the terms of this Agreement and/or in compliance with the Construction Documents, or (2) uninsured losses resulting from the negligence of DB or its Contractors/subcontractors. All Change Orders, including zero dollar Change Orders, which require the use of the DB Contingency Fund, shall require City approval.
13.1.4 DB shall prepare, with the cooperation of the City, alternate bid items to assist in meeting the GMP.
13.2 DB shall perform the Phase I Services on a time and materials basis for an amount not to exceed $XXX, as specified in DB’s Project Cost Estimate. Except as otherwise expressly provided in this Agreement, as full and complete compensation for performance of all Phase II Services under this Agreement, DB shall be compensated by the GMP sum to be determined at 90% construction documents. Said amounts for the Phase I and Phase II Services shall not be exceeded unless Additional Services are requested pursuant to Section 9 above or a Change Order issued pursuant to Section 14. Unless otherwise expressly provided in this Agreement, the 10/24/2023 C4 102 of 130
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GMP shall include full compensation for all costs of any type incurred by DB in performing all services and obligations under this Agreement, including but not limited to the following:
13.2.1 All Design Consultants.
13.2.2 Estimating, management of design consultants and value engineering.
13.2.3 Construction supervision and project management personnel, including but not limited to superintendents, Project managers, Project secretaries, Project engineers, Project accountants, and all other DB personnel wherever located.
13.2.4 All on-site and off-site equipment, supplies and facilities, including but not limited to, computers, estimating, dictating, communication and accounting equipment, office space, trailers, field equipment and storage facilities.
13.2.4.1 In no case shall the cumulative monthly rental charges to the Project for equipment and Small Tools used by the DB exceed 90% of the fair market value of any one piece of equipment or Small Tools. At City’s option, the full price for equipment or Small Tools may be paid, and City may take possession upon completion of the Work.
13.2.5 All home-office and field overhead costs of any type including document control and retention.
13.2.6 All business license costs.
13.2.7 All profit DB intends to earn under this Agreement.
13.2.8 All direct and incidental costs incurred by DB, except for those specifically identified in Section 9.
13.3 DB shall be reimbursed, without markup and only as specified in this Agreement for the following “Reimbursable Costs:”
13.3.1 Any reimbursable cost expressly provided for elsewhere in this Agreement.
13.4 DB agrees and acknowledges the City retains its full and complete discretion for all legislative actions, including any future appropriations necessary to complete this Project or fund this Agreement. As more fully provided in Section 26, the City may terminate this Agreement for any reason, including but not limited to, if City Council fails to appropriate sufficient funds or is unsuccessful at obtaining long term financing.
Section 14: Change in GMP and Contract Time
14.1 The GMP and Contract Time may only be changed by written Change Order. Change Orders shall be issued only under the following circumstances:
14.1.1 The City directs DB to perform Additional Services or City Changes as provided in Section 9.
14.1.2 For reasons expressly provided elsewhere in this Agreement.
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14.2 The following procedure shall be followed for the issuance of Change Orders:
14.2.1 Upon the occurrence of any event that gives rise to a Change Order, including any action, inaction, decision or direction by City or agent for the City, DB shall give the City notice of the same within five (5) calendar days. DB shall not proceed with any such services or work until such notice has been given to the City except if such services or work are necessary to protect public health, safety or property as directed by the City Representative in writing.
14.2.2 If DB submits a request to change the GMP, DB shall: (1) inform City of any request to change the GMP or Contract Time at the next Project Team Meeting; (2) provide City with a list of recommended revisions which DB believes will bring Project within the GMP; and (3) assist City in reviewing the itemized cost breakdown and recommend revisions so that City can revise the scope of the Project so that the GMP is not exceeded.
14.2.3 DB’s notice to the City shall include a detailed and complete estimate of the cost and time impacts associated with the requested Change Order, including all appropriate direct and indirect costs and credits. All such costs and credits shall be accurately categorized into DB Fixed Fee, Reimbursable Costs or Hard Construction Costs. DB shall also provide City with a realistic estimate of the impact, if any, the Change Order will have on the Contract Time. DB shall provide complete and accurate pricing within ten (10) calendar days of the occurrence of the event that gives rise to a Change Order.
14.2.4 Upon submission of the detailed estimates by the DB, the Parties will attempt to negotiate an appropriate adjustment in GMP and Contract Time. If an agreement is reached, a Change Order reflecting the agreement will be executed by the Parties. If an agreement is not reached, the City shall have the option to direct the DB to proceed with the subject services and/or work, during which time the DB shall contemporaneously maintain accurate and complete records of all labor, material and equipment utilized in performing the subject services and/or work. These records shall be submitted to the City and shall become the basis for continued negotiations between the Parties for an equitable adjustment to the GMP and/or Contract Time.
14.2.5 In the event there is any disagreement or dispute between the Parties as to whether the DB is entitled to a Change Order or the amount of the Change Order, the matter shall be resolved in accordance with Section 33. DB shall not have the right to stop or delay in the prosecution of any services or work, including services or work that is the subject of the Change Order, pending this resolution process. Instead, DB shall continue diligently prosecuting all such services and work.
14.2.6 City may, in its sole discretion, adjust the GMP or Contract Time for any undisputed amount or time associated with the Change Order or Additional Services.
14.3 All Change Orders, including zero dollar Change Orders which require the use of DB Contingency Fund, irrespective of impact on GMP and Contract Time shall require City approvals, however City shall not unreasonably withhold approval for use of contingency funds for changes normally encountered due to unforeseen omissions in the work packages and minor clarifications of the drawings.
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Section 15: Payment Terms
15.1 DB shall provide all Phase I Services for the Phase I Fee. DB shall submit certificate and application for payment to the City on a monthly basis for Phase I Services rendered and costs incurred. The monthly payment shall be based upon percentage of completion of the Schedule of Values plus any Reimbursable Costs as provided in Section 15.3.
15.2 DB shall provide all Phase II Services for the Phase II Fee. DB shall submit certificate and application for payment to City on a monthly basis for Phase II Services. The monthly payment application shall be based upon the percentage of completion of the Schedule of Values plus any Reimbursable Costs and Hard Construction Costs as provided in Section 15.3 and 15.4, less any payments previously made by the City and subject to the receipt of unconditional lien releases for all prior payments and if the invoiced amount is not disputed by City, it shall pay DB ninety five percent (95%) of payment application based upon the percentage complete of the Schedule of Values and 100% of the reimbursable costs within thirty (30) days after receipt of the fully documented invoice. City will withhold the remaining 5% as security for DB’s full performance.
15.3 DB shall develop and maintain an accurate system for tracking all Reimbursable Costs.
Utilizing this system, DB shall include with each month payment application an itemization of all such Reimbursable Costs actually incurred by DB, during the previous month. If requested by the City, DB shall provide all backup documentation supporting such Reimbursable Costs.
15.4 DB shall develop and maintain an accurate system for tracking all Hard Construction Costs it incurs on the Project. Utilizing this system, DB shall include with each monthly application for payment an itemization of all Hard Construction Costs actually incurred by DB during the previous month.
15.5 DB shall separately submit to City certificate and application for payment on a monthly basis for any authorized Additional Services performed by DB. Subject to the receipt of unconditional lien releases for all prior payments and if Additional Services are not disputed by City, City shall pay ninety five percent (95%) of the invoiced amount within thirty (30) days of receipt of fully complete invoice. City will withhold the remaining 5% as security for DB’s full performance.
15.6 Subject to Sections 15.8, City shall pay DB the five percent (5%) retention being withheld pursuant to Sections 15.2, and 15.5 as part of the “Final Payment” to DB. Final Payment will be made thirty-five (35) days after Final Completion.
15.7 The City Manager will consider the release of the entire retention for subcontractors upon completion of the subcontractors’ work and execution of a disclaimer and unconditional final lien release by the subcontractor.
15.8 In lieu of withholding retention under this Agreement, at the election of DB, City will deposit retention amounts into escrow and/or the substitution of securities for money as provided in California Public Contract Code Section 22300.
Section 16: Project Completion
16.1 Substantial Completion shall be that stage in the progress of the construction when all Work on the Project is sufficiently complete in accordance with the Construction Documents so that City can fully utilize entire Project; Substantial Completion shall further mean that all goods, services and systems to be provided under the terms and conditions of the Construction 10/24/2023 C4 105 of 130
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Documents are in place and have been initially tested, and are operationally functional, subject only to final testing, balancing and adjustments and normal Final Completion punch list Work.
16.2 Final Completion shall be deemed to occur on the last of the following events: (1) recordation of a Notice of Completion for the Project; (2) acceptance of the Project by the City; (3) issuance of a final Certificate of Occupancy for the Project; (4) submission of all documents required to be supplied by DB to City under this Agreement, including but not limited to As-Built Drawings, warranties, and operating manuals; (5) and delivery to City of a Certificate of Completion duly verified by DB.
16.3 DB shall provide City with a Certificate of Completion, certifying to City under penalty of perjury that the Project has been completed in accordance with the Construction Documents, all applicable building codes and regulations, all permits, licenses, and certificates of inspection, use and occupancy, and ordinances relating to the Project.
16.4 DB shall provide one set of City final record drawing documents at the end of construction and one copy in electronic format (“As-Built Drawings”). As-Built Drawings are to be accurate and legible records showing exact location by dimensions, and the exact depth by elevation of underground lines, valves, plugged tees, wiring and utilities.
16.5 DB shall provide a copy of, or make available before destruction, all records (which includes all writings as defined in Evidence Code Section 250) to the City upon receipt or generation, which shall include a copy of DB’s filing protocol.
Section 17: Contract Time
17.1 The “Contract Time” shall be the number of calendar days stated in Section 1 for DB to achieve Substantial Completion.
17.2 “Time is of the essence” with regard to Contract Time and all milestones listed in the schedule.
17.3 The Contract Time may only be changed by a Change Order as set forth in Section 14.
17.4 Further, an extension in Contract Time will not be granted unless DB can demonstrate through an analysis of the Project Schedule that the increases in the time to perform or complete the Project, or specified part of the Project, beyond the corresponding Contract Time arise from unforeseeable causes beyond the control and without the fault or negligence of DB, its Design Consultants, and subcontractors or suppliers, and that such causes in fact lead to performance or completion of the Project, or specified part in question, beyond the corresponding Contract Time, despite DB’s reasonable and diligent actions to guard against those effects.
17.5 DB carries the burden of proving an entitlement to an increase in the Contract Time.
Delays attributable to and within the control of Design Support Consultants, or subcontractor or supplier shall be deemed to be delays within the control of DB. No time extension will be allowed for such delays. An increase in Contract Time does not necessarily mean that DB is due an increase in the GMP.
Section 18: Late Completion
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thereof allowed in accordance with Section 17.3. They also recognize the delays, expense, and difficulties involved in proving in a legal proceeding the actual loss suffered by City if the Project is not completed on time. Accordingly, instead of requiring any such proof, City and DB agree that DB shall pay as liquidated damages (but not as a penalty) for each calendar day of delay beyond the time specified for Substantial Completion of the Project, the following amounts which DB expressly agrees are “not unreasonable under the circumstances” as defined in California Civil Code §1671(b): $4000 for each calendar day. Liquidated Damages shall not be assessed after the date on which Substantial Completion is achieved pursuant to Section 16.
Section 19: Right to Modify Work
19.1 Without invalidating the Agreement and without notice to any surety, City may at any time or from time to time, order additions, deletions, or revisions in the Project; these will be authorized by a written Change Order prepared and issued by City. Upon receipt of any such document, DB shall promptly proceed with the Work involved which will be performed under the applicable conditions of the Construction Documents (except as otherwise specifically provided).
19.2 When City desires a change in the Project, City may issue a Request for Proposal to DB.
DB will be required to respond within the time indicated by City.
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Section 21: Work By Others
21.1 City may perform other work related to the Project at the Project Site by City’s own forces, or let other direct contracts (“City Contractor”). The City will give DB reasonable notice of its intent to do such other work. DB’s work shall take priority over the City Contractors; but the Parties will use their best efforts to coordinate their work so as to minimize the disruption to each other’s work and to allow City Contractor to proceed expeditiously.
21.2 If the proper execution or results of any part of DB’s work depends upon the work by the City or City Contractor, DB shall promptly inspect and report to City in writing any apparent delays, defects, or deficiencies in the City’s work that render it unavailable or unsuitable for such proper execution and results. DB’s failure to promptly report such delays, defects, or deficiencies in writing before commencement of the affected work, will constitute an acceptance of the City’s work as fit and timely for integration with DB’s Work except for latent defects and deficiencies in the City’s work for which DB will not be responsible.
21.3 If DB or any person or entity working for DB causes damage to the City’s or City Contractor’s work, property, or person, or if any claim arising out of DB’s performance of the Project by any other contractor is made against DB, by City, any other contractor, or any other person, DB shall promptly repair and/or resolve said claim at no cost to City.
Section 22: Warranties and Guarantees
22.1 DB warrants and guarantees to City that materials and equipment incorporated into the Project will be new unless otherwise specified and that all work will be in strict accordance with the Construction Documents and will not be defective. Prompt notice of defects known to City shall be given to DB. All Defective Work, whether or not in place, may be rejected, corrected, or accepted as reasonably directed by City, provided DB shall not be entitled to an extension in Contract Time or increase in GMP because of any delay or increase in cost attributable to the 10/24/2023 C4 107 of 130
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rejection, correction or acceptance of said work. Defective work may be rejected even if approved by prior inspection.
22.2 The warranty period shall commence when the Certificate of Final Completion is issued or at beneficial use by City prior to Final Completion, whichever occurs earlier, and extend one (1) year after that date or whatever longer period may be prescribed by laws or regulations or by the terms of any applicable special guarantee or specific provision of the Construction Documents.
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22.5 Correction of Defective Work - If within the designated warranty period, or such longer period as may be required by laws or regulations, the Project or any part of the Project, is discovered to contain defective work, DB shall promptly, without any reimbursement or adjustment in the GMP, and in accordance with City’s written instructions, either correct that defective work, or if it has been rejected by City remove it from the Project and replace it with work which is not defective. If circumstances warrant it, including but not limited to, in an emergency, City or DB may have the defective work corrected or the defective work removed and replaced. In that event, DB shall not be allowed to recover any associated costs, and DB shall reimburse City for all direct, and indirect costs of City, and City shall be entitled to an appropriate decrease in the GMP, to withhold a setoff against amount recommended for payment, or make a claim on DB’s bond if DB has been paid in full.
22.6 With respect to all warranties, express or implied, from subcontractors, manufacturers, or suppliers for Work performed and materials furnished under this Agreement, the DB shall:
22.6.1 Obtain all warranties that would be given in normal commercial practice and as required by the City;
22.6.2 Require all warranties to be executed, in writing, for the benefit of City;
22.6.3 Enforce all warranties for the benefit of City, if directed by City;
22.6.4 In the event DB’s warranty under Section 22.2 has expired, City may bring suit at its expense to enforce a subcontractor’s, manufacturer’s, or supplier’s warranty;
22.6.5 DB shall assign all subcontractor, supplier and manufacturer warranties including maintenance contracts from the installer for specialized equipment to cover the limited warranty period to City at the expiration of the one year warranty.
Section 23: Use and Possession Prior to Completion
23.1 City shall have the right to take possession of or use any completed or partially completed part of the Work if mutually agreed upon by the parties. Before taking possession of or using any Work, City shall furnish DB a list of items of Work remaining to be performed or corrected on those portions of the Work that City intends to take possession of or use. However, failure of City to list any item of Work shall not relieve DB of responsibility for complying with the terms of this Agreement. City’s possession or use shall not be deemed an acceptance of any Work under this Agreement, nor relieve the DB of any of its obligations under this Agreement.
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23.2 While City has such possession or use, DB shall be relieved of the responsibility for the loss of or damage to the Work resulting from City’s possession or use. If prior possession or use by City delays the progress of the Work or causes additional expense to DB, an equitable adjustment shall be made in the GMP or the Contract Time, and the Agreement shall be modified in writing accordingly.
Section 24: Personal Services and Non-Assignability
24.1 This is a personal services Agreement and, therefore, DB shall not alter the key employees or Design Consultants nor assign or transfer, voluntarily or involuntarily, any of its rights, duties or obligations under this Agreement except upon the prior written consent of City. Any such change, assignment or transfer without the prior written consent of the City shall be deemed null and void and constitute a material breach under this Agreement.
Section 25: Indemnification
25.1 To the fullest extent permitted by the law, DB shall indemnify, defend, protect and hold harmless City, their elected and appointed officers, agents, employees, consultants, (collectively herein the “Indemnitees”), from and against all claims, demands, causes of action, damages, injuries, liabilities, losses and expenses (including, without limitation, reasonable attorneys’ and consultants’ fees and expenses) of any kind whatsoever, arising in whole or in part out of or resulting from DB’s performance of this Agreement, DB’s breach of this Agreement, or the alleged negligent acts or omissions of DB, its architects, engineers, other professionals and consultants, Contractors, suppliers or anyone directly or indirectly employed by any of them or anyone for whose acts they may be liable. The obligations of the DB under this paragraph for errors or omissions, including those of the design professional subcontractors, which includes the Design Subcontractors, consultants, agents and employees thereof (“Design Subcontractors”), which arise from (1) the preparation or approval of maps, drawings, opinions, reports, surveys, designs or specifications, or (2) the giving of or the failure to give directions or instructions shall not be limited to the amount of coverage provided for in the professional liability insurance policy. If City is fully reimbursed by DB’s insurance for any loss covered by this paragraph, DB shall have no further obligation for such loss.
25.2 DB’s obligation to indemnify under Section 25.1 shall not extend to such claims, demands, causes of action, damages, injuries, liabilities, losses and expenses, to the extent that such is the result of the active negligence or the willful misconduct of an Indemnitee. DB’s obligation to defend under Section 25.1, if not covered by the insurance to be provided on the Project, shall not extend to such claims, demands, causes of action, damages, injuries, liabilities, losses and expenses, or causes of actions, to the extent that such are caused by the active negligence or the willful misconduct of the Indemnitee, and from no other cause.
25.3 DB shall ensure that any asbestos or hazardous or toxic substances encountered on the site is properly removed and disposed of in accordance with all state or federal statutes or regulations. DB’s obligation regarding the removal or disposal of asbestos or hazardous or toxic substances, products or materials shall be limited to the proper removal within the Project boundaries and the proper disposal of such materials. The DB agrees to the fullest extent permitted by law, to indemnify, defend, and hold harmless the City, its elected and appointed officers, employees, agents and consultants from and against any and all claims, suits, demands, liabilities, losses, or costs, including reasonable attorney’s fees and defense costs, resulting or accruing to any and all persons, firms, and any other legal entity, caused by, arising out of or in any way connected with the removal or disposal of any asbestos or hazardous or toxic substances, products or materials that exist on the jobsite whether liability arises under breach of 10/24/2023 C4 109 of 130
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contract or warranty, tort, including negligence, strict liability or statutory liability or any other cause of action.
Section 26: Right to Terminate and Suspend Work
26.1 Archaeological and Paleontological Discoveries: If a discovery is made of an archaeological or paleontological interest, DB shall immediately cease operations in the area of the discovery and shall not continue until ordered by City. When resumed, operations within the area of the discovery shall be as directed by City.
26.1.1 Discoveries which may be encountered may include, but are not be limited to, dwelling sites, stone implements or other artifacts, animal bones, human bones, fossils or any item with cultural significance.
26.1.2 DB shall be entitled to an extension of time and compensation in accordance with the provisions of this Agreement.
26.2 Termination of Agreement by City for Cause: If, through any cause, DB shall fail to fulfill in a timely and proper manner DB’s obligations under this Agreement, or if DB shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to DB of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. All finished or unfinished documents, data, studies, drawings, maps, plans, specifications, reports, electronic files, and other materials prepared by DB, or any of its agents, Design Consultants or Subcontractors, shall, at the option of the City, become the property of the City, and DB shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination, not to exceed amounts payable hereunder, and less any damages caused by DB’s breach.
26.2.1 In the event the Agreement is terminated in accordance with this Section, City may take possession of the Project and may complete the Project by whatever method or means City may select.
26.2.2 If the cost to complete the Project exceeds the balance, which would have been due, DB shall pay the excess amount to City.
26.2.3 Rights of City Preserved: Where DB’s services have been so terminated by City, the termination will not affect any rights or remedies of City against DB then existing or which may thereafter accrue. Any retention or payment of moneys due DB by City will not release DB from liability. It is agreed that termination hereafter will not in any way release, waiver, or abridge any rights the City has against DB’s performance bond surety.
26.3 Any dispute as to the amount due or owed to DB upon termination under this section shall be resolved in accordance with Section 26.
26.4 Termination for Convenience by City: City may terminate this Agreement at any time and for any reason, by giving specific written notice to DB of such termination and specifying the effective date thereof, at least seven (7) days before the effective date of such termination. In that event, all finished and unfinished documents and other materials described hereinabove shall, at the option of the City, become City’s sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, DB shall be entitled to receive just and equitable compensation for any satisfactory Work completed to the effective date of such termination. DB 10/24/2023 C4 110 of 130
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hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein.
26.4.1 Records and Documents Relating to Termination: Unless otherwise provided in the Agreement or by statute, DB shall maintain all records and documents relating to the terminated portion of this Agreement for three (3) years after final settlement. This includes all books and other evidence bearing on DB’s costs and expenses under this Agreement.
DB shall make these records and documents available to City, at DB’s office, at all reasonable times, without any direct charge. If approved by the City Manager, photographs, electronic files, microphotographs, or other authentic reproductions may be maintained instead of original records and documents.
26.5 Upon receipt of the Notice of Termination, DB shall take any action that may be necessary, or that the City Manager may direct, for the protection and preservation of the property related to this Agreement that is in the possession of DB and in which City has or may acquire an interest.
26.6 Payment to DB Due to Termination - DB and the City Manager may agree upon the whole or any part of the amount to be paid because of the termination. The amount may include a fee proportional to the percentage of work satisfactorily completed. However, the agreed amount may not exceed the total dollar amount authorized by City as reduced by the amount of payments previously made.
26.7 Failure to Agree on Payment - If DB and City fail to agree on the whole amount to be paid because of the termination of Project, City shall pay DB the fair and reasonable amounts determined in good faith by City as follows, but without duplication of any amounts agreed to above:
26.7.1 The price for completed services accepted;
26.7.2 The costs incurred in the performance of the Project terminated, including initial costs and preparatory expense allocable thereto. These costs are only for Work completed and accepted by the City based on an audit of all Contractors’ bills of materials and the timecards for Work actually performed;
26.7.3 DB and Design Subcontractor services through the date of termination shall be paid based on actual time spent as documented on timecards. Expenses shall be paid based on invoice and receipts provided by DB;
26.7.4 Under no circumstances will DB be entitled to any consideration for lost profit or lost opportunity costs;
26.8 If DB does not agree that the amount determined by the City Manager is fair and reasonable and if DB gives notice of such disagreement to City within thirty (30) days of receipt of payment, then the amount due shall be as later determined pursuant to the Dispute Resolution procedures in Section 26.
26.9 Payment for Property Destroyed, Lost, Stolen or Damaged - Except to the extent that City expressly assumed the risk of loss, the City Manager shall exclude from the amounts payable to DB under this Section, the fair value, as determined by the City Manager, of property that is destroyed, lost, stolen, or damaged so as to become undeliverable to City.
26.10 Deductions - In arriving at the amount due DB under this section, there shall be deducted:
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26.10.1 Any claim which City has against DB under this Agreement; and
26.10.2 The agreed price for, or the proceeds of sale of, materials, supplies, or other things acquired by DB or sold under the provisions of this clause and not recovered by or credited to City.
26.11 Termination of Agreement by DB:
26.11.1 DB may terminate the Agreement upon ten (10) days written notice to City, whenever:
26.11.1.1 The Project has been suspended under the provisions of Section 26.1 or 26.2, for more than ninety (90) consecutive days through no fault or negligence of DB, and notice to resume Work or to terminate the Agreement has not been received from City within this time period; or
26.11.1.2 City should fail to pay DB any monies due it in accordance with the terms of this Agreement and within ninety (90) days after presentation to City by DB of a request therefore, unless within said 10-day period City shall have remedied the condition upon which the payment delay was based.
26.11.2 In the event of such termination, DB shall have no claims against City except for those claims specifically enumerated in Section 26.9, herein, and as determined in accordance with the requirements of said Section.
Section 27: Independent Contractor
27.1 DB and any Design Consultant, Contractor, Subcontractor, agent or employee of DB, shall act as an independent contractor and not as an agent, officer or employee of City. Except as expressly provided in this Agreement, City assumes no liability for DB’s actions and performance; in particular, but without limitation, City assumes no responsibility for paying any taxes, bonds, payments or other commitments, implied or explicit, by or for DB. DB acknowledges that it is aware that because it is an independent contractor, City is making no deductions from the fees for services being paid to DB and that City is not contributing to any fund on the behalf of DB. DB disclaims the right to any type of additional fee or benefits.
Section 28: Independent Judgment
28.1 Unless otherwise directed in writing by City, DB shall, in providing the professional services required by this Agreement, arrive at conclusions with respect to the rendition of information, advice and recommendations, independent of the control and direction of City, other than normal contract monitoring; DB, however, shall possess no authority with respect to any City decision beyond rendition of such information, advice and recommendations. DB shall not have the authority to act as an agent on behalf of City unless specifically authorized to do so by City in writing.
Section 29: Maintenance of Records and Accounting
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under this Agreement. City will have the right at any time, including during the performance of all Phases of the Project to audit and copy all such records.
Section 30: Ownership of Documents
30.1 Drawings, plans and specifications, and all reports, studies, tracings, maps, electronic files, and other documents prepared or obtained by DB in the course of performing the work under this Agreement shall be the property of City, and DB shall convey and transfer all copyrightable interests in such drawings, plans and specifications, documents to City. Basic survey notes, sketches, charts, computations and similar data prepared or obtained by DB under this Agreement shall, upon request, be made available to City. City agrees to use the original plans and drawings for purposes of this construction project only and will not use the original plans or drawings in connection with any other construction project. City agrees to indemnify, defend and hold harmless DB against any claims, losses, costs or damages as a result of City's reuse or misuse of such plans, drawings and specifications. In the event of the return of the plans, drawings, or specifications to DB or its representative, DB shall be responsible for their safe return to City. DB shall be entitled to retain copies of the plans, drawings and specifications for their files.
Under no circumstances shall DB fail to deliver any draft or signed and sealed final plans, drawings or specifications to City upon written demand by City for their delivery, notwithstanding any disputes between DB and City concerning payment, performance of Agreement, or otherwise.
This covenant shall survive the termination of the Agreement.
30.2 Title to Intellectual Property. DB shall represent that it has secured all necessary licenses, consents or approvals to use the components of any intellectual property, including computer software, used in the rendering of services and the production of the materials for the Project and that City has full legal title to and the right to reproduce such materials. DB covenants to defend, indemnify and hold City harmless of any loss, claim or liability in any way related to a claim that City is violating, as a result of any services rendered by the DB, either any contractual provisions or any federal, state or local law, relating to trade names, licenses, franchises, patents or other means of protecting interests in products or inventions.
Section 31: Force Majeure
31.1 Any party to this Agreement may be excused for any delay or failure to perform its duties and obligations under this Agreement, except for obligations to pay money, but only to the extent that such failure or delay is caused by an Event of Force Majeure as set forth in Section 31.2. If an Event of Force Majeure set forth in Section 31.2 causes a delay or failure in performance of only a portion of the obligations of a Party under this Agreement, then only that portion of performance which was delayed or prevented by such cause shall be deemed excused, and the performance of all other obligations of a Party not so delayed shall not be excused by an Event of Force Majeure. Delay or failure in performance of all other obligations of a Party not so delayed shall not be excused by such Event of Force Majeure. Delay or failure in performance by a Party which is the result of an Event of Force Majeure set forth in Section 31.2 shall be deemed excused for a period no longer than the delay or failure in performance caused by such Event.
31.2 An Event of Force Majeure means an occurrence beyond the control and without the fault or negligence of a Party, including but not limited to unusually severe weather, flood, earthquake, fire, lightning, and other natural catastrophes, acts of God or the public enemy, war, terrorist act, riot, insurrection, civil disturbance or disobedience, strike or labor dispute for which DB is not responsible, expropriation or confiscation of facilities, changes of applicable law, or sabotage of facilities, so long as such Party makes good faith and reasonable efforts to remedy the delays or failures in performance caused thereby. However, DB, in developing the GMP and Project 10/24/2023 C4 113 of 130
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Schedule, has incorporated three (3) days for anticipated adverse weather days that may disrupt work on the Project; DB shall be entitled to relief under this Section for adverse weather only to the extent adverse weather days exceed this amount of days.
31.3 A Party shall give written notice to the other Party as soon after becoming aware of the delay or failure in performance caused by an Event of Force Majeure as is reasonably possible, but in any event within five (5) working days after Party becomes aware of such delay or failure.
31.4 No Event of Force Majeure shall be a basis for monetary adjustment to the GMP. Costs incurred by the DB as a result of a Force Majeure Event will be reimbursed according to the terms of this Agreement from the Contingency Fund.
Section 32: Hazardous Materials
32.1 In the event the DB or any other party encounters asbestos or hazardous or toxic materials at the Project Site, or should it become known in any way that such materials may be present at the Project Site or any adjacent areas that may affect the performance of the DB’s services, the DB may, at his or her option and without liability for consequential or any other damages, suspend performance of services on the Project until the City retains appropriate specialist consultant(s) or contractor(s) to identify, abate and/or remove the hazardous or toxic materials, and warrant that the Project Site is in full compliance with applicable laws and regulations.
Section 33: Disputes
33.1 All claims, counterclaims, disputes, and other matters in question arising under, or relating to, the Agreement or the breach thereof shall be processed in accordance with the provisions of this Section, unless specifically addressed by another provision of this Agreement.
33.2 DB shall submit its written request for additional compensation for work beyond the scope of this Agreement to City pursuant to Section 9. City shall make a determination on DB’s request in writing within 7 days of receipt of request and all supporting data. Said request for approval of work beyond the scope of this Agreement shall be made in good faith and accurately reflect the adjustment in project fee or schedule for which DB believes City is liable, and covers all costs and delays to which DB believes it is entitled as a result of the occurrence of the claimed event. All requests for adjustment in schedule shall include an analysis of the impact of the claimed work on specific activities on the schedule.
33.3 If DB disagrees with City’s determination, DB shall file a claim in writing in accordance with the procedures set forth in Chapter 1.28 of the Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of the same.
33.4 Pending final resolution of any claim, including litigation, DB shall proceed diligently with performance of the Project, and comply with any direction of City.
Section 34: Notices
34.1 All notices, demands or other communications hereunder shall be given or made in writing and shall be delivered personally or sent by courier or registered or certified mail, return receipt requested, postage prepaid, addressed to the Party to whom they are directed at the following addresses, or at such other addresses as may be designated by notice from such Party:
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To CITY:
Engineering Department
Attn: Gabe Grewe
200 Civic Center Drive
Vista, CA 92084
To DB:
XXX
XXX
XXX, CA XXX
Any notice, demand or other communication given or made solely by mail in the manner prescribed in this Section shall be deemed to have been given and to be effective three (3) days after the date of such mailing; provided, however, that any notice, demand or other communication which would otherwise be deemed to have been given on a day which is not a working day shall be deemed to have been given on the next subsequent working day.
Section 35: Miscellaneous Terms
35.1 Representations: Each Party hereto declares and represents that in entering into this Agreement it has relied and is relying solely upon its own judgment, belief and knowledge of the nature, extent, effect and consequence relating thereto. Each Party further declares and represents that this Agreement is being made without reliance upon any statement or representation of any other Party not contained herein, or any representative, agent or attorney of any other Party.
35.2 Severability: If any term or condition of this Agreement is held to any extent to be invalid or unenforceable, all the remaining terms and conditions shall be enforceable to the fullest extent permitted by law.
35.3 Entire Agreement: This Agreement contains the entire agreement, between the Parties and supersedes all prior negotiations, discussions, obligations and rights of the Parties in respect of each other regarding the subject matter of this Agreement. There is no other written or oral understanding between the Parties. No modification, amendment or alteration of this Agreement shall be valid unless it is in writing and signed by the Parties hereto.
35.4 Drafting Ambiguities: The Parties agree that they are aware that they have the right to be advised by counsel with respect to the negotiations, terms and conditions of this Agreement, and that the decision of whether or not to seek the advice of counsel with respect to this Agreement is a decision which is the sole responsibility of each of the Parties hereto. This Agreement shall not be construed in favor of or against either Party by reason of the extent to which each Party participated in the drafting of the Agreement.
35.5 Applicable Law: The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. Venue for mediation, arbitration and/or actions arising out of this Agreement shall be in the City of Vista, California.
35.6 Waiver: Unless otherwise expressly provided herein, no delay or omission by the Parties hereto in exercising any right or remedy provided for herein shall constitute a waiver of such right or remedy, nor shall it be construed as a bar to or a waiver of any such right or remedy on any future occasion.
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35.7 Effect of Headings: Headings appearing in this Agreement are inserted for convenience of reference only, and shall in no way be construed to be interpretations of the provisions hereof.
35.8 Amendments: This Agreement may be modified, amended or supplemented only by the mutual written agreement of the Parties hereto.
35.9 Authorization and Compliance: Each Party represents that it is duly authorized to execute and carry out the provisions of this Agreement.
35.10 Further Assurances: The Parties agree to do such further acts and things and execute and deliver such additional agreements and instruments as the other may reasonably require to consummate, evidence or confirm the agreements contained herein in the manner contemplated hereby.
35.11 Counterparts: This Agreement may be executed by the Parties in one or more counterparts, all of which taken together shall constitute one and the same instrument. The facsimile signatures of the Parties shall be deemed to constitute original signatures, and facsimile copies hereof shall be deemed to constitute duplicate original counterparts.
35.12 Exhibits: All Exhibits are incorporated herein by reference into this Agreement.
35.13 Third Party Beneficiary: Nothing within this Agreement shall create a contractual relationship between the City and any third party.
35.14 Counterparts; Electronic Signatures; Electronic Delivery: This Agreement may be executed in separate counterparts, none of which need contain the signatures of both Parties, and each of which, when so executed, shall be deemed an original and all together shall constitute and be one of the same instrument. The Parties agree that this Agreement, whether executed by electronic signature, digital signature, or constituting a scanned or electronically reproduced copy or image of this Agreement bearing the signatures of the Parties, will be deemed an original and will represent competent evidence of the execution, terms and existence of this Agreement notwithstanding the failure or inability to produce an original executed Agreement or counterpart thereof, and without the requirement that the unavailability of such original executed Agreement or counterpart thereof first be proven. Further, the exchange of this entire executed Agreement (and/or such exhibit(s) or document(s)) that is in photostatic or portable document format (.pdf) form by electronic mail or by another electronic means shall be considered original(s) and shall constitute effective execution and delivery of the original(s).
Section 36: Prevailing Wages; Labor Law Compliance
This contract is subject to the provisions of Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code relating to public works. Design-Builder agrees to execute City’s Agreement to Comply with California Labor Law Requirements (Exhibit 5) and to comply with the Labor Code to the extent that work under this Agreement is subject to those requirements.
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Section 37: Execution
IN WITNESS WHEREOF; the Parties hereto have executed this Agreement as of the Agreement Date.
“City”
CITY OF VISTA, a chartered municipal
corporation
BY:
JOHN B. FRANKLIN, MAYOR
ATTEST:
KATHY VALDEZ, CITY CLERK
BY:
APPROVED AS TO FORM:
WALTER CHUNG, CITY ATTORNEY
BY:
RISK MANAGEMENT REVIEW:
DOLORES GASCON, RISK MANAGER
BY:
“Design Builder”
XXX, XXXX
By:
Name/Title
BY:
Name/Title
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EXHIBIT LIST
1. Design/Build Services Proposal, Schedule of Rates, and Project Schedule
2. Insurance and Bonding Requirements
3. Request for Proposal (RFP)
4. Project Site
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EXHIBIT 2
Insurance and Bonding Requirements
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INSURANCE AND BONDING REQUIREMENTS
Contractor shall procure and maintain for the duration of the Contract, and for one year thereafter, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Contractor, his agents, representatives, employees, or subcontractors.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (“CGL”): Insurance Work Office Form CG 00 01 covering CGL on an “occurrence” basis, including products, completed operations, property damage, bodily injury, and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this Project/location or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: Insurance Work Office Form Number CA 0001 covering Code 1 (any auto), with limits no less than $2,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employers’ Liability insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease.
4. Surety Bonds as described below.
Contractor shall also provide the additional coverages checked below and at least as broad as:
5. Contractors’ Pollution Legal Liability and/or Asbestos Legal Liability and/or Errors and Omissions (if Project involves environmental hazards) with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate.
6. Builder’s Risk (Course of Construction) insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the Project and no coinsurance penalty provisions.
7. Professional Liability (if Design/Build), with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate.
If the contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either: the contractor shall cause the insurer shall reduce or eliminate such 10/24/2023 C4 120 of 130
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deductibles or self-insured retentions as respects the City, its officers, officials, employees, and volunteers; or the Contractor shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
1. The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts, or equipment furnished in connection with such work or operations and automobiles owned, leased, hired, or borrowed by or on behalf of the Contractor. General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10, CG 11 85 or both CG 20 10 and CG 20 37 forms if later revisions used), unless otherwise approved in advance by City.
2. For any claims related to this Project, the Contractor’s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, and volunteers.
Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it.
3. Each insurance policy required by this clause shall provide that coverage shall not be canceled, except with notice to the City.
Builder’s Risk (Course of Construction) Insurance
Contractor may submit evidence of Builder’s Risk insurance in the form of Course of Construction coverage. Such coverage shall name the City as a loss payee as their interest may appear.
If the Project does not involve new or major reconstruction, at the option of the City, an Installation Floater may be acceptable. For such Projects, a Property Installation Floater shall be obtained that provides for the improvement, remodel, modification, alteration, conversion or adjustment to existing buildings, structures, processes, machinery and equipment. The Property Installation Floater shall provide property damage coverage for any building, structure, machinery or equipment damaged, impaired, broken, or destroyed during the performance of the Work, including during transit, installation, and testing at the City’s site.
Claims Made Policies
If any coverage required is written on a claims-made coverage form:
1. The retroactive date must be shown, and this date must be before the execution date of the Contract or the beginning of Contract work.
2. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of Contract work.
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3. 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, or start of work date, the Contractor must purchase extended reporting period coverage for a minimum of five (5) years after completion of Contract work.
4. A copy of the claims reporting requirements must be submitted to the City for review.
5. If the services involve lead-based paint or asbestos identification/remediation, the Contractors Pollution Liability policy shall not contain lead-based paint or asbestos exclusions. If the services involve mold identification/remediation, the Contractors Pollution Liability policy shall not contain a mold exclusion, and the definition of Pollution shall include microbial matter, including mold.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best rating of no less than A: VII, unless otherwise acceptable to the City.
Waiver of Subrogation
Contractor hereby agrees to waive rights of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Contractor, its employees, agents and subcontractors.
Verification of Coverage
Contractor shall furnish the City with original certificates and amendatory endorsements, or copies of the applicable insurance language, effecting coverage required by this Contract. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time.
Subcontractors
Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a format least as broad as CG 20 38 04 13.
Surety Bonds
Contractor shall provide the following Surety Bonds if checked:
1. Bid Bond.
2. Payment Bond and Performance Bond.
3. Maintenance Bond.
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The Payment Bond and the Performance Bond shall be in an amount equal to the Contract Ceiling Price. If the Performance Bond provides for a one-year warranty a separate Maintenance Bond is not necessary. If the warranty period specified in the Contract is for longer than one year a Maintenance Bond equal to 10% of the Contract price is required.
Bonds shall be duly executed by a responsible corporate surety, authorized to issue such bonds in the State of California and secured through an authorized agent with an office in California.
Special Risks or Circumstances
City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other circumstances.
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EXHIBIT 5
Agreement to Comply with California Labor Law Requirements 10/24/2023 C4 124 of 130
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AGREEMENT TO COMPLY WITH CALIFORNIA LABOR LAW REQUIREMENTS
TO BE EXECUTED BY BIDDER AND SUBMITTED WITH BID
[Labor Code §§ 1720, 1771.1, 1725.5, 1773.3, 1773.8, 1775, 1776, 1777.5, 1813, 1860, 1861, 3700] The undersigned Contractor certifies that it is aware of and hereby agrees to fully comply with the following provisions of California law:
1. No contractor or subcontractor may be listed on a bid proposal for a public works project unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5 [with limited exceptions from this requirement for bid purposes only under Labor Code section 1771.1(a)]. No contractor or subcontractor of any tier may be awarded a contract for public work on a public works project without proof of registration with the Department of Industrial Relations pursuant to Labor Code section 1725.5.
This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
2. Contractor acknowledges that this contract is subject to the provisions of Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code relating to public works and the awarding public agency (“Agency”) and agrees to be bound by all the provisions thereof as though set forth in full herein.
3. Contractor agrees to comply with the provisions of California Labor Code Section 1773.8 which requires the payment of travel and subsistence payments to each worker needed to execute the work to the extent required by law.
4. Contractor agrees to comply with the provisions of California Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. The Contractor shall, as a penalty to the Agency, forfeit not more than fifty dollars ($50) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of Industrial Relations for the work or craft in which the worker is employed for any public work done under the contract by Contractor or by any subcontractor.
5. Contractor agrees to comply with the provisions of California Labor Code Section 1776 which require Contractor and each subcontractor to (1) keep accurate payroll records, (2) certify and make such payroll records available for inspection as provided by Section 1776, and (3) inform the Agency of the location of the records. The Contractor is responsible for compliance with Section 1776 by itself and all of its subcontractors.
6. Contractor agrees to comply with the provisions of California Labor Code Section 1777.5 concerning the employment of apprentices on public works projects, and further agrees that Contractor is responsible for compliance with Section 1777.5 by itself and all of its subcontractors.
7. Contractor agrees to comply with the provisions of California Labor Code Section 1813 concerning penalties for workers who work excess hours. The Contractor shall, as a penalty to the Agency, forfeit twenty-five dollars ($25) for each worker employed in the execution of the contract by the Contractor or by any subcontractor for each calendar day during which such worker is required or permitted to work more than 8 hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the California Labor Code.
8. Registrations under Section 1725.5 expire annually at the end of June, and Contractor is responsible for verifying the renewal status of each subcontractor, of any tier, working on this Contract, and providing City with an updated list of all subcontractors and their registration status. Subcontractors who do not timely renew their registration must be removed from the job site until they are registered. The removal of a subcontractor for failure to be registered shall not be cause for any extension of time or additional compensation of any nature under the Contract.
9. Contractor shall provide to City, as a condition precedent to the payment of Contractor’s final retention, a complete list of all subcontractors who have worked on the Project, including their registration numbers. This list must be provided at least 30days prior to the payment of the final retention and shall be submitted under penalty of perjury.
10. To the fullest extent permitted by law and without limitation by the other provisions of this Contract relating to indemnification and insurance, Contractor shall also indemnify, defend and hold harmless City, 10/24/2023 C4 125 of 130
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and its directors, officers, employees and agents from and against all liability, excluding penalties assessed against City under Labor Code Section 1773.3, but including, without limitation, associated investigation and administrative expenses, defense costs, reasonable attorneys' fees, expert witness fees, court costs, and costs of alternative dispute resolution, resulting from Contractor’s failure to comply with the provisions of this section and of Article 2, Chapter 1, Part 7, Division 2 of the California Labor Code with respect to Contractor, all subcontractors of any tier, and their respective employees working under this Contract.
11. California Labor Code Sections 1860 and 3700 provide that every contractor will be required to secure the payment of compensation to its employees. In accordance with the provisions of California Labor Code Section 1861, Contractor hereby certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for worker’s compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.”
Signature Date
Name/Title Company:
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EXHIBIT 4
Project Site – No Attachment
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EXHIBIT 5
Agreement to Comply With California Labor Law Requirements 10/24/2023 C4 128 of 130
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AGREEMENT TO COMPLY WITH CALIFORNIA LABOR LAW REQUIREMENTS
TO BE EXECUTED BY BIDDER AND SUBMITTED WITH BID
[Labor Code §§ 1720, 1771.1, 1725.5, 1773.3, 1773.8, 1775, 1776, 1777.5, 1813, 1860, 1861, 3700] The undersigned Contractor certifies that it is aware of and hereby agrees to fully comply with the following provisions of California law:
1. No contractor or subcontractor may be listed on a bid proposal for a public works project unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5 [with limited exceptions from this requirement for bid purposes only under Labor Code section 1771.1(a)]. No contractor or subcontractor of any tier may be awarded a contract for public work on a public works project without proof of registration with the Department of Industrial Relations pursuant to Labor Code section 1725.5.
This project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
2. Contractor acknowledges that this contract is subject to the provisions of Division 2, Part 7, Chapter 1 (commencing with Section 1720) of the California Labor Code relating to public works and the awarding public agency (“Agency”) and agrees to be bound by all the provisions thereof as though set forth in full herein.
3. Contractor agrees to comply with the provisions of California Labor Code Section 1773.8 which requires the payment of travel and subsistence payments to each worker needed to execute the work to the extent required by law.
4. Contractor agrees to comply with the provisions of California Labor Code Sections 1774 and 1775 concerning the payment of prevailing rates of wages to workers and the penalties for failure to pay prevailing wages. The Contractor shall, as a penalty to the Agency, forfeit not more than fifty dollars ($50) for each calendar day, or portion thereof, for each worker paid less than the prevailing rates as determined by the Director of Industrial Relations for the work or craft in which the worker is employed for any public work done under the contract by Contractor or by any subcontractor.
5. Contractor agrees to comply with the provisions of California Labor Code Section 1776 which require Contractor and each subcontractor to (1) keep accurate payroll records, (2) certify and make such payroll records available for inspection as provided by Section 1776, and (3) inform the Agency of the location of the records. The Contractor is responsible for compliance with Section 1776 by itself and all of its subcontractors.
6. Contractor agrees to comply with the provisions of California Labor Code Section 1777.5 concerning the employment of apprentices on public works projects, and further agrees that Contractor is responsible for compliance with Section 1777.5 by itself and all of its subcontractors.
7. Contractor agrees to comply with the provisions of California Labor Code Section 1813 concerning penalties for workers who work excess hours. The Contractor shall, as a penalty to the Agency, forfeit twenty-five dollars ($25) for each worker employed in the execution of the contract by the Contractor or by any subcontractor for each calendar day during which such worker is required or permitted to work more than 8 hours in any one calendar day and 40 hours in any one calendar week in violation of the provisions of Division 2, Part 7, Chapter 1, Article 3 of the California Labor Code.
8. Registrations under Section 1725.5 expire annually at the end of June, and Contractor is responsible for verifying the renewal status of each subcontractor, of any tier, working on this Contract, and providing City with an updated list of all subcontractors and their registration status. Subcontractors who do not timely renew their registration must be removed from the job site until they are registered. The removal of a subcontractor for failure to be registered shall not be cause for any extension of time or additional compensation of any nature under the Contract.
9. Contractor shall provide to City, as a condition precedent to the payment of Contractor’s final retention, a complete list of all subcontractors who have worked on the Project, including their registration numbers. This list must be provided at least 30days prior to the payment of the final retention and shall be submitted under penalty of perjury.
10. To the fullest extent permitted by law and without limitation by the other provisions of this Contract relating to indemnification and insurance, Contractor shall also indemnify, defend and hold harmless City, 10/24/2023 C4 129 of 130
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and its directors, officers, employees and agents from and against all liability, excluding penalties assessed against City under Labor Code Section 1773.3, but including, without limitation, associated investigation and administrative expenses, defense costs, reasonable attorneys' fees, expert witness fees, court costs, and costs of alternative dispute resolution, resulting from Contractor’s failure to comply with the provisions of this section and of Article 2, Chapter 1, Part 7, Division 2 of the California Labor Code with respect to Contractor, all subcontractors of any tier, and their respective employees working under this Contract.
11. California Labor Code Sections 1860 and 3700 provide that every contractor will be required to secure the payment of compensation to its employees. In accordance with the provisions of California Labor Code Section 1861, Contractor hereby certifies as follows:
“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for worker’s compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.”
Signature Date
Name/Title Company:
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