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
18. 1 City and DB recognize that time is of the essence in this Agreement and that City will suffer financial loss if the Project is not completed within the Contract Time, plus any extensions 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 00105692 1
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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.
Section 20: INTENTIONALLY LEFT BLANK.
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 rejection, correction or acceptance of said work. Defective work may be rejected even if approved by prior inspection.
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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.
22. 3 INTENTIONALLY LEFT BLANK.
22. 4 INTENTIONALLY LEFT BLANK.
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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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- Assianabilitv
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 contract or warranty, tort, including negligence, strict liability or statutory liability or any other cause of action.
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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 hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein.
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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:
26. 10.1 Any claim which City has against DB under this Agreement; and 00105692 1
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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
29. 1 DB shall maintain, during the Project and for a period of three ( 3) years after completion of the Project, accurate and organized records of all costs of any type and all services performed 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. 00105692 1
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Section 30: OwnershiD 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 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. 00105692 1
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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:
To CITY:
Engineering Department
Attn: Jeanette Bradshaw
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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.
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. 00105692 1
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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 page 24Section 37: Execution
Section 37: Execution
Section 37: Execution
Section 37: Execution
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Design / Build Services Agreement
Three Traffic Signals Project ( CIP No' s. 8375, 8376 & 8377)
Section 37: Execution
IN WITNESS WHEREOF; the Parties hereto have executed this Agreement as of the Agreement Date.
City" Design Builder"
CITY OF VISTA, a chartered municipal XXX, XXXX
corporation
BY:
JOHN B. FRANKLIN, MAYOR
ATTEST:
KATHY VALDEZ, CITY CLERK
BY:
By:
Name/ Title
BY:
APPROVED AS TO FORM: Name/ Title
WALTER CHUNG, CITY ATTORNEY
is
RISK MANAGEMENT REVIEW:
DOLORES GASCON, RISK MANAGER
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Design / Build Services Agreement
Three Traffic Signals Project ( CIP No' s. 8375, 8376 & 8377)
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
5. Agreement to Comply With California Labor Law Requirements 00105692 1
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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:
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 000439971 1 of 4
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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:
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. 000439971 4 of 4
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EXHIBIT 5
Agreement to Comply with California Labor Law Requirements 08/12/2025
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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, 37001 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, 000195963
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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 08/12/2025
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Docusign Envelope ID: 25E21 E23- 53A6- 4734- B501 - DFC4D465228E
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, 000195963
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Docusign Envelope ID: 25E21 E23- 53A6- 4734- B501 - DFC4D465228E 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."
Signed by:
Signature Date
November 18, 2024
E
Name/ Title
lames c. Perry
President/ Secretary/ TreasUdrrhpany:
DBX, Inc.
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