HomeMy WebLinkAboutStaff Report 371-09TO: HONORABLE CITY COUNCIL
FROM: CITY MANAGER DEPARTMENT: UTILITIES
DATE: SEPTEMBER 21, 2009 CMR: 371:09
REPORT TYPE: CONSENT
SUBJECT: Approval of a Water Enterprise Fund Contract with Anderson-
Pacific Engineering Construction, Inc. in a Not to Exceed Amount of
$3,870,000 for the Design-Build of the Eleanor Pardee Park and Main
Library/Community Gardens WellslEmergency Water Supply Wells
Project WS-08002
RECOMMENDATION
Staff recommends that Council approve and authorize the City Manager or his designee to
execute the attached Agreement with Anderson-Pacific Engineering Construction, Inc.
(Attachment A) in a not to exceed amount of $3,870,000 for the Design-Build of Eleanor Pardee
Park and Main Library/Community Gardens Emergency Water Supply wells, as part of the
Emergency Water Supply Project WS-08002.
BACKGROUND
The Eleanor Pardee Park and the Main Library/Community Gardens Emergency Water Supply
Wells Project (Wells Project) is part of the overall Emergency Water Supply Project (EWSP),
WS-08002. The purpose of these projects is to ensure that an adequate water supply is available
to meet the City'S needs in the event of an emergency. The project will ensure the City's
compliance with the California Department of Public Health's (CDPH) recommendation to have
stand-alone emergency water (including groundwater) sufficient to supply eight hours of usage at
the highest hourly demand plus a reserve for fire fighting. The EWSP will construct a 2.5
million gallon reservoir, three new wells, rebuild Lytton Pump Station, rehabilitate up to five
existing wells, and rebuild the Mayfield Pump Station and supporting pipelines.
DISCUSSION
During the pre-design phase of the wells project (CMR:291 :08), Siegfried Engineering, Inc.
(SEI) conducted a geotechnical investigation of the two well sites by drilling two pilot holes for
the wells and preparing a report indicating the required depths of these two wells to meet the
design basis of 1000 gallons per minute production. This report was used to prepare the Request
for Proposal (RFP) for the construction of the two new wells. A Request for Qualifications
(RFQ) was prepared by City staff to prequalify design-build engineer/contractors. SEI prepared
CMR: 371:09 Page 1 of 4
an RFP (RFP#131390) which was advertised July 21, 2009 after City staffprequalified four (4)
design-build engineer/contractor teams. SEI will continue to assist with implementation of the
design-build contract by facilitating continuity between the pre-design effort and the final design
effort during the design-build phase, and will assure conformance of the final design with the
construction requirements and design intent set forth in the RFP.
Solicitation Process
Summary of Solicitation Process
Proposal Title Design-Build of Eleanor Pardee Park and Library/Community
Gardens Water Production Wells for the Emergency Water
Supply Project
Proposal Number l3l390
Proposed Length of Contract 8 months
Number of Proposals mailed &/or 4
emailed
Total Days to Respond to Proposal 24
Pre-proposal Meeting Date July 28, 2009
Number of Company Attendees at 4
Mandatory Pre-proposal Meeting
Number of Proposals Received: I
Company Name Location (City, State) Proposal Amount*
Anderson-Pacific Engineering Santa Clara, CA $3,870,000
Construction, Inc.
tlasea on veslgn-tlUlla project metnoa ot aellvery.
Consultants involved with the pre-design phase (CMR:291 :08) were excluded from submitting a
proposal in the design-build phase. Non-responsive proposers indicated they were unable to
meet the project requirements.
Cost of Design-Build Contract:
As shown in the table above, Anderson-Pacific Engineering Construction, Inc. submitted a
proposal for $3,870,000, approximately 3% less than the Engineer's Estimate of $4,000,000.
Staff reviewed Anderson-Pacific Engineering Construction, Inc.' s proposal, qualifications, and
state contractor's license, met with the design-build engineer/contractor project team and
determined that the design-build engineer/contractor team has the expertise and experience
necessary to perform the work.
RESOURCE IMPACT
Funds required for this design-build project in amount of $3,870,000 are included in the WS-
08002 Emergency Water Supply Project CIP. The Emergency Water Supply Project (WS-08002)
was approved by Council as part of the FY 2007-09 CIP Adopted Capital Budgetl .
POLICY IMPLICATIONS
On June 23, 2008, Council adopted a resolution approving design-build for the wells project
(CMR:291:08).
I http://www.cityofpaloalto.org/civicaifilebankiblobdload.asp?BlobID=8773; page 243/354.
CMR: 371:09 Page 2 of4
Approval of the Design-Build contract is consistent with existing City policies, and with
Municipal Code Title 2, section 2.30.300, Public Works Contracts, with respect to alternative
project delivery methods. The design-build model, however, is a departure from the City's
customary design-bid-build practice.
Design-Build
Pursuant to City Municipal Code Section 2.30.300(c) regarding alternative project delivery
methods, staff recommends that the wells be designed and constructed via a design-build
process. In a "design-build" project delivery method, both design and construction services are
covered under a single contract, whereas, in a traditional "design-bid-build"project delivery
method, the agency contracts with separate entities for both the design and construction of a
project. Design-build contracts are usually awarded by a process other than formal competitive
bidding, (which mandates award to the lowest monetary bidder) in order to allow consideration
of qualitative factors, such as a bidder's experience and performance on prior jobs, in addition to
pnce.
A significant difference between design-build contracts and traditional design-bid-build contracts
is that in a design-build method, the final design work is done concurrently with construction. As
a result, the design-build method can accelerate the project schedule and reduce overall project
costs. The design-build method also allows the contractor to begin certain construction activities,
such as excavation, before detailed design is completed, and accelerates project progress by
eliminating or reducing certain design and/or procurement steps, such as submittal preparation
and review. Due to the current deficiency in emergency water supply, staff is recommending that
Palo Alto add capacity to its emergency water supplies as soon as possible. The design-build
contract process will accelerate the completion of this project. Specifically, based on the Design-
Build Institute of America's (DBIA) design-build project method of delivery industry data on
water facility projects, staff estimates that the use of a design-build contract process will:
• Allow the project to be completed 7 months earlier; and
• Result in savings of $300,000.
Although Article VII, Section 6 of the City Charter requires formal bidding and award to the
lowest monetary bidder for public works contracts funded by bonded indebtedness of the city, no
bond financing will be used for this project since funds are available in CIP WS-08002
Emergency Water Supply Project. Section 2.30.300(c) of the City Municipal Code requires
formal bidding for all public works contracts unless Council determines by resolution "that a
particular public works project may be solicited and contracted for using alternate project
delivery methods, including but not limited to design build, construction manager at risk, or
competitive negotiation."
The approval of this Water Enterprise Fund contract is consistent with existing City policies.
This recommendation is consistent with the Council-approved Utilities Strategic Plan Key
Strategy No.1, "Operate distribution system in a cost effective manner," Strategy No.7,
"Implement programs that improve the quality of the environment" and Objective No.2, "Invest
in utility infrastructure to deliver reliable service."
CMR: 371:09 Page 3 of4
ENVIRONMENTAL REVIEW
The field work, including drilling work, conducted during pre-design, as well as the project for
construction of wells in Eleanor Pardee Park and at the Main Library/Community Gardens site,
are part of the overall project EIR for the Emergency Water Supply Project (SCH #2066022038),
which Council certified on March 5, 2007 as being adequate to meet the requirements of the
California Environmental Quality Act (CEQA).
ATTACHMENTS
A: Agreement with Anderson-Pacific Engineering Construction, Inc. Exhibits A through G
B: Project Location Map
PREPARED BY:
DEPARTMENT HEAD:
CITY MANAGER APPROVAL:
CMR: 371:09
[2if.r Romel Antonio, Senior Project Engineer ",,~eg Scoby, WGW Engineering Manager
~m Marshall, Assistant Utilities Director
VALE~NG
Directo of Uti Ities
Page 4 of4
ATTACHMENT A
CITY OF PALO ALTO CONTRACT NO. CI0131390
AGREEMENT BETWEEN THE CITY OF PALO ALTO
AND
ANDERSON-PACIFIC ENGINEERING CONSTRUCTION, INC.
FOR
THE DESIGN-BUILD OF WATER PRODUCTION WELLS
FOR EMERGENCY WATER SUPPLY
AT
ELEANOR PARDEE PARK AND LIBRARY/COMMUNITY GARDENS
PALO ALTO, CALIFORNIA
This AGREEMENT is made as of the day of ------in the year of , by and between the following parties, for services in connection with
the PROJECT identified below.
CITY: CITY OF PALO ALTO, a charter city and
Municipal corporation of the State of California (CITY)
250 Hamilton Avenue
Palo Alto, CA 94301
DESIGN-BUILDER: ANDERSON-PACIFIC ENGINEERING CONSTRUCTION, INC., a
California corporation (DESIGN-BUILDER)
PROJECT:
1390 Norman Avenue
Santa Clara, CA95054
DESIGN-BUILD OF WATER PRODUCTION WELLS FOR
EMERGENCY WATER SUPPLY AT ELEANOR PARDEE PARK AND
LIBRARY/COMMUNITY GARDENS (PROJECT)
In consideration of the mutual covenants and obligations contained herein, City and
Design-Builder agree as set forth herein.
Article 1
Scope of Work
1.1 Design-Builder shall perfonn all design and construction services, and provide all
material, equipment, tools and labor, necessary to complete the Work described in and
reasonably inferable from the Contract Documents, as more particularly described in
Exhibit A attached hereto and incorporated herein by this reference.
1.2 Definitions.
1.2.1 Agreement shall mean this Agreement between the City of Palo Alto and Anderson
Pacific Engineering Construction, Inc. for the Design-Build of Eleanor Pardee Park and
Library/Community Gardens Water Production Wells for Emergency Water Supply and
Storage Project, including the exhibits, which exhibits are specifically made a part ofthis
Agreement by this reference.
1.2.2 Application for Payment constitutes a representation by Design-Builder that the design
and/or construction has progressed to the point indicated by the end of the month, that the
quality of the Work covered by the Application for Payment is in accordance with the
Contract Documents and that Design-Builder is entitled to payment in the amount
requested.
1.2.3 Application for Final Payment constitutes a representation by Design-Builder that
Design-Builder has completed all of the Work in confonnance with the Contract
Documents and that Design-Builder is entitled to final payment in the amount requested.
The Application for Final Payment shall be submitted in accordance with Section 6.6 of
the General Conditions.
1.2.4 Certificate of Substantial Completion shall mean a certificate prepared and issued by the
City, setting forth: (i) the date of Substantial Completion of the Work or portion thereof,
(ii) the remaining items of Work that have to be completed before final payment, (iii)
provisions (to the extent not already provided in the Contract Documents) establishing
City's and Design-Builder's responsibility for the Project's security, maintenance,
utilities and insurance pending final payment and (iv) an acknowledgment that warranties
commence to run on the date of Substantial Completion, except as may otherwise by
noted in the Certificate of Substantial Completion.
1.2.5 Change Order is a written instrument issued after the execution of this Agreement signed
by the City and Design-Builder stating their agreement upon the scope of the change in
the Work and the adjustment in the Contract Price and/or Contract Time{s), if any.
1.2.6 City shall mean the City of Palo Alto.
1.2.7 City's Project Criteria shall mean the City's requirements and objectives for the Project,
including use, space, price, time, site requirements, as well as submittal requirements and
other requirements governing Design-Builder's performance of the Work. City's Project
Criteria may include conceptual documents, design criteria, performance requirements
and other Project-specific technical materials and requirements. The City's Project
Criteria are described in the Pre-Design Engineering Report (PER) prepared by Siegfried
Engineering, Inc.
1.2.8 City's Representative shall mean the person designated to be the City's representative
pursuant to Section 8.1.2 of this Agreement.
1.2.9 City's Senior Representative shall mean the person designated to be the City's senior
representative pursuant to Section 8.1.1 of this Agreement.
1.2.10 Construction Documents shall mean documents setting forth in detail the requirements
for construction of the Work, which may consist of drawings, specifications and other
documents and electronic data.
1.2.11 Contract Documents shall mean the documents referred to in Section 1.3 hereof.
1.2.12 Contract Price shall mean the Design-Builder's Fee plus the Cost of the Work, subject to
the GMP and any adjustments made in accordance with the General Conditions of
Contract as described in Exhibit B.
1.2.13 Day or Days shall mean calendar days unless otherwise specifically noted in the Contract
Documents.
1.2.14 Design-Builder shall mean Anderson Pacific Engineering Construction, Inc.
1.2.15 Design-Builder's Representative shall mean the person designated to be Design-Bui1der's
representative pursuant to Section 8.2.2 of this Agreement.
1.2.16 Design-Builder's Senior Representative shall mean the person designated to be Design-
Builder's senior representative pursuant to Section 8.2.1 ofthis Agreement.
1.2.17 Design Consultant is a qualified, licensed design professional who is not an employee of
Design-Builder, but is retained by Design-Builder, or employed or retained by anyone
under contract with Design-Builder, to furnish design services required under the
Contract Documents.
1.2.18 Differing Site Conditions shall mean concealed or latent physical conditions or
subsurface conditions at the Site that (i) materially differ from the conditions indicated in
the Contract Documents or (ii) are of an unusual nature, differing materially from the
conditions ordinarily encountered and generally recognized as inherent in the Work.
1.2.19 Final Completion is the date on which all requirements for the design and construction of
the Project identified under this Agreement are fully satisfied.
1.2.20 General Conditions olContract shall mean Exhibit C of this Agreement.
1.2.21 GMP or Guaranteed Maximum Price is as defined in Section 6.5 of this Agreement.
1.2.22 Hazardous Conditions are any materials, wastes, substances and chemicals deemed to be
hazardous under applicable Legal Requirements, or the handling, storage, remediation, or
disposal of which are regulated by applicable Legal Requirements.
1.2.23 Legal Requirements are all applicable federal, state and local laws, codes, ordinances,
rules, regulations, orders and decrees of any government or quasi-government entity
having jurisdiction over the Project or Site, the practices involved in the Project or Site,
or any Work.
1.2.24 Notice 01 Completion means and refers to a Notice of Completion pursuant to California
Civil Code §3093.
1.2.25 Parties means the City of Palo Alto and Anderson Pacific Engineering Construction, Inc.
1.2.26 Pre-Design Engineering Report or PER means the Pre-Design Engineering Report
prepared by Siegfried Engineering, Inc. pursuant to City of Palo Alto Contract No.
C08126041.
1.2.27 Project shall mean the improvements for which Design-Builder is to provide services
under this Agreement, including two (2) new emergency water supply wells and
appurtenant facilities at Eleanor Pardee Park and at Library/Community Gardens.
1.2.28 Project Schedule shall mean that schedule for performance of the Work prepared by
Design-Builder and approved by the City as set forth in Exhibit D, as such schedule may
be updated from time to time pursuant to Section 2.1.3 of the General Conditions of
Contract.
1.2.29 Site is the land or premises on which the Project is located.
1.2.30 Subcontractor is any person or entity retained by Design-Builder to perform a portion of
the Work and shall include materialmen and suppliers.
1.2.31 Sub-Subcontractor is any person or entity retained by a Subcontractor to perform any
portion ofa Subcontractor's Work and shall include materialmen and suppliers.
1.2.32 Substantial Completion means the date on which the Work, or an agreed upon portion of
the Work, is sufficiently complete so that City can occupy and use the Project or a
portion thereof for its intended purposes.
1.2.33 Work is comprised of all Design-Builder's design, construction and other services
required by the Contract Documents, including procuring and furnishing all materials,
equipment, services and labor reasonably inferable from the Contract Documents
necessary to complete the Project.
1.2.34 Work Product is comprised of all wntmgs, reports, drawings, plans, specifications,
calculations, electronic data, and other documents, and copyright interests developed
under this Agreement.
1.3 Contract Documents. The Contract Documents are comprised of the following
documents and everything incorporated by these documents:
1.3.1 All written modifications, amendments and change orders to this Agreement
issued in accordance with the General Conditions of Contract;
1.3.2 This Agreement, including all exhibits and attachments;
1.3.3 The General Conditions of Contract attached as Exhibit C to this Agreement;
1.3.4 Construction Documents prepared and approved in accordance with Section 2.4
of the General Conditions of Contract;
1.3.5 City's Project Criteria as described in the Pre-Design Engineering Report; and
1.3.6 Request for Qualifications (RFQ) 131390 (PART 1.)
1.3.7 Request for Proposal (RFP) 131390 (PART II).
1.3.8 The Design-Builder's proposal dated August 14, 2009 and letter of proposal
clarification dated August 26,2009.
Article 2
The Parties' Services and Responsibilities
2.1 Design Services. Design-Builder shall, consistent with applicable state licensing laws,
provide design services, including architectural, engineering and other design
professional services, required by this Agreement. Such design services shall be provided
through qualified, State of California licensed design professionals who are either (i)
employed by Design-Builder, or (ii) procured by Design-Builder from independent
sources. Nothing in this Agreement creates any legal or contractual relationship between
City and any independent design professional. Design-Builder shall have a separate
written agreement with any such persons or entities providing such architectural,
engineering or other design professional services, and shall require such entities to obtain
and maintain professional liability coverage in the amounts set forth in Attachment B of
the RFP any claims, damages, errors and omissions arising out of the professional
services to be performed by such parties.
2.2 Preliminary Services
2.2.1 Design-Builder will assist City in expanding upon the City's PER. The Design-
Builder shall review and prepare a written evaluation of the City's Project
Criteria, including recommendations to City for any necessary different and
innovative approaches to the design and construction of the Project. The Parties
shall meet to discuss Design-Builder's written evaluation of the City's PER and
agree upon what revisions, if any, should be made to the City's PER. No
revisions shall be made to the PER without City'S approval. Any revisions to the
PER that result in additional costs or saved costs, shall be documented by a
change order and executed in accordance with Article 9 of the General
Conditions.
2.3 Construction Documents. Design-Builder shall prepare Construction Documents based
on City's final PER, as may be revised in accordance with Section 2.2.1 hereof. The
Construction Documents shall include design criteria, drawings, diagrams, specifications
and all other items necessary to build the Project. The Parties shall meet to discuss the
Construction Documents and agree upon what revisions, if any, should be made. No
revisions shall be made to the Construction Documents without City's approval. Design-
Builder shall make such agreed-upon revisions. To the extent that changes to the
Construction Documents impose increased costs on Design-Builder, Design-Builder shall
be entitled to a change order pursuant to Article 9 of the General Conditions.
2.4 Proposal. Based on City's PER, the Construction Documents, as each may be revised
pursuant to Sections 2.2.1 and 2.3 above, and any other documents upon which the
Parties may agree, Design-Builder shall submit a proposal to City (the "Proposal"), which
shall include the following;
2.4.1 A proposed Contract Price for the design and construction of the Project, which
price shall be the Design-Builder'S Fee plus the Cost of the Work subject to the
Guaranteed Maximum Price ("GMP") as described in Exhibit B; and
2.4.2 A schedule and date of Substantial Completion of the Project upon which the
Contract Price for the Project is based as described in Exhibit D.
2.5 Review of Proposal. Design-Builder and City shall meet to discuss and review the
Proposal. If City has any comments regarding the Proposal, or finds any inconsistencies
or inaccuracies in the information presented with respect to the City's PER, it shall
promptly give written notice to Design-Builder of such comments or findings. If Design-
Builder finds the revisions acceptable, Design-Builder shall, upon receipt of City's
notice, adjust the Proposal. If Design-Builder and the City do not agree on a price or
time of completion, either Party may terminate the Agreement without further costs.
Article 3
Interpretation and Intent
3.1 The Contract Documents will provide for the Design-Builder to complete the Work and
all obligations required by the Contract Documents within the Contract Time(s) for the
Contract Price. The Contract Documents are complementary and shall be interpreted in
harmony so as to avoid conflict, with words and phrases interpreted in a manner
consistent with construction and design industry standards. In the event of any
inconsistency, conflict, or ambiguity between or among the Contract Documents, the
Contract Documents shall take precedence in the order in which they are listed in Section
1.3.1 hereof.
3.2 Tenus, words and phrases used in the Contract Documents shall have the meanings given
them in this Agreement, if not defined elsewhere in the Contract Documents.
3.3 The documents constituting the Contract Documents as set forth in Section 1.3 hereof,
represent the entire and integrated agreement between City and Design-Builder and
supersedes all prior negotiations, representations or agreements, whether written or oral,
between City and Design-Builder related to the Project or the Work.
Article 4
Ownership of Work Product
4.1 Work Product. All Work Product, including without limitation, all writings, reports,
drawings, plans, specifications, calculations, electronic data, and other documents, and
copyright interests developed under this Agreement shall be and remain the exclusive
property of the City without restriction or limitation upon their use. All copyrights which
arise from creation of the Work pursuant to this Agreement shall be vested in City, and
Design-Builder waives and relinquishes all claims to copyright or other intellectual
property rights in favor of the City. Neither Design-Builder, its Subcontractors, nor its
Sub-Subcontractors, if any, shall make any of such materials available to any individual
or organization without the City's prior written approval.
Article 5
Contract Time
5.1 Date of Commencement. The Work shall commence within five (5) days of Design-
Builder's receipt of a written notice issued by the City authorizing Design-Builder to
proceed with the Work or some portion of the Work ("Date of Commencement") unless
the Parties mutually agree otherwise in writing.
5.2 Substantial Completion and Final Completion.
5.2.1 Substantial Completion of the entire Project shall be achieved no later than the date
detenuined pursuant to Section 2.4.2 hereof ("Scheduled Substantial Completion Date").
5.2.2 Interim milestones and/or Substantial Completion of identified portions of the Work shall
be based upon final negotiated schedule proposed by DESIGN-BUILDER and agreed
upon by CITY.
5.2.3 Final Completion of the Work or identified portions of the Work shall be achieved as
expeditiously as reasonably practicable.
5.2.4 All of the dates set forth in this Article 5 ("Contract Time(s)") shall be subject to
adjustment in accordance with the General Conditions of Contract.
5.3 Time is of the Essence. City and Design-Builder mutually agree that time is of the
essence with respect to the dates and times set forth in the Contract Documents.
5.4 Liquidated Damages. Design-Builder understands that if Substantial Completion is not
attained by the Scheduled Substantial Completion Date, City will suffer damages which
are difficult to determine and accurately specify. If Substantial Completion is not
attained by fourteen (14) days after the Scheduled Substantial Completion Date (the "LD
Date"), Design-Builder shall pay City five thousand dollars ($5,000.00) as liquidated
damages for each day that Substantial Completion extends beyond the LD Date. The
liquidated damages provided herein shall be in lieu of all liability for any and all extra
costs, losses, expenses, claims, penalties and any other damages, whether special or
consequential, and of whatsoever nature incurred by City which are occasioned by any
delay in achieving Substantial Completion.
Article 6
Contract Price
6.1 Contract Price
6.1.1 City shall pay Design-Builder in accordance with Article 6 of the General Conditions of
Contract, a Contract Price which is equal to Design-Builder's Fee (as defined in Section 6.2
hereof), plus the Cost of the Work (as defined in Section 6.3 hereof), subject to the GMP
established in Section 6.5 hereof and any adjustments made in accordance with the General
Conditions of Contract.
6.2 Design-Builder's Fee
6.2.1 Design-Builder's Fee shall be:
Three Hundred Eighty Thousand Dollars ($380,000).
6.3 Cost of the Work. The term Cost of the Work shall mean costs reasonably incurred by
Design-Builder in the proper performance of the Work for the procurement, furnishing,
installation and construction of the Work. The Cost of the Work shall also include only the
following:
.1 Wages of direct employees of Design-Builder performing the Work, provided,
however, that the costs for employees of Design-Builder performing design
services shall be calculated on the basis of prevailing market rates for design
professionals performing such services .
• 2 Wages or salaries of Design-Builder's supervisory and administrative personnel
engaged in the performance of the Work to assist in the production or
transportation of material and equipment necessary for the Work.
.3 Wages or salaries of Design-Builder's personnel stationed at Design-Builder's
principal or branch offices and performing the following functions. The
reimbursable costs of personnel stationed at Design-Builder's principal or branch
offices shall include a fifteen percent (15%) markup to compensate Design-
Builder for the Project-related only overhead associated with such personnel.
.4 Costs incurred by Design-Builder for employee benefits, premiums, taxes,
insurance, contributions and assessments required by law, collective bargaining
agreements, or which are customarily paid by Design-Builder, to the extent such
costs are based on wages and salaries paid to employees of Design-Builder
covered under Sections 6.3.1 through 6.3.3 hereof.
.5 The reasonable portion of the cost of travel, accommodations and meals for
Design-Builder's personnel necessarily and directly incurred in connection with
the perfonnance of the Work .
. 6 Payments properly made by Design-Builder to Subcontractors and Design
Consultants for perfonnance of portions of the Work, including any insurance and
bond premiums incurred by Subcontractors and Design Consultants .
. 7 Costs incurred by Design-Builder in repairing or correcting defective, damaged or
nonconfonning Work, provided that such defective, damaged or nonconfonning
Work was beyond the reasonable control of Design-Builder, or caused by the
ordinary mistakes or inadvertence, and not the negligence, of Design-Builder or
those working by or through Design-Builder. If the costs associated with such
defective, damaged or nonconfonning Work are recoverable from insurance,
Subcontractors or Design Consultants, Design-Builder shall exercise best efforts
to obtain recovery from the appropriate source and credit City if recovery is
obtained .
. 8 Costs, including transportation, inspection, testing, storage and handling, of
materials, equipment and supplies incorporated or reasonably used in completing
the Work.
.9 Costs less salvage value of materials, supplies, temporary facilities, machinery,
equipment and hand tools not customarily owned by the workers that are not fully
consumed in the perfonnance of the Work and which remain the property of
Design-Builder, including the costs of transporting, inspecting, testing, handling,
installing, maintaining, dismantling and removing such items .
. 10 Costs of removal and lawful disposal of debris and waste from the Site .
. 11 The reasonable costs and expenses incurred in establishing, operating and
demobilizing the Site office, including the cost of facsimile transmissions, long-
distance telephone calls, postage and express delivery charges, telephone service,
photocopying and reasonable petty cash expenses .
. 12 Rental charges and the costs of transportation, installation, minor repairs and
replacements, dismantling and removal of temporary facilities, machinery,
equipment and hand tools not customarily owned by the workers, which are
provided by Design-Builder at the Site, whether rented from Design-Builder or
others, and incurred in the performance of the Work.
.13 Premiums for insurance and bonds required by this Agreement or the performance
of the Work.
.14 All fuel and utility costs incurred in the performance of the Work .
. 15 Sales, use or similar taxes, tariffs or duties incurred in the performance of the
Work.
.16 Legal costs, court costs and costs of mediation and arbitration reasonably arising
from Design-Builder's performance of the Work, provided such costs do not arise
from disputes between City and Design-Builder .
• 17 Costs for permits, royalties, licenses, tests and inspections incurred by Design-
Builder as a requirement of the Contract Documents .
. 18 The cost of defending suits or claims for infringement of patent rights arising
from the use of a particular design, process, or product required by the City,
paying legal judgments against Design-Builder resulting from such suits or
claims, and paying settlements made with City's consent.
.19 Deposits which are lost, except to the extent caused by Design-Builder's
negligence .
• 20 Costs incurred in preventing damage, injury or loss in case of an emergency
affecting the safety of persons and property .
. 21 Other costs reasonably and properly incurred in the performance of the Work to
the extent approved in writing by City.
6.4 Non-Reimbursable Costs
The following shall be excluded from the Cost of the Work:
.1 Compensation for Design-Builder's personnel stationed at Design-Builder's
principal or branch offices, except as provided for in Sections 6.3.1, 6.3.2 and
6.3.3 hereof .
• 2 Overhead and general expenses, except as provided for in Section 6.3 hereof.
.3 The cost ofDesign-Builder's capital used in the performance ofthe Work.
.4 If the Parties have agreed on a GMP, costs that would cause the GMP, as adjusted
in accordance with the Contract Documents, to be exceeded.
6.5 The Guaranteed Maximum Price (GMP)
6.5.1 Establishment of the GMP
6.5.1.1 Design-Builder guarantees that it shall not exceed the GMP of Three Million Eight
Hundred Seventy Thousand Dollars ($3,870,000). Design-Builder will be responsible for
paying all costs for completing the Work which exceeds the GMP, as adjusted in
accordance with the Contract Documents. Documents used as a basis for the GMP shall
be identified in an exhibit to this Agreement (Exhibit B).
6.5.2 Savings
6.5.2.1 If the sum of the actual Cost of the Work and Design-Builder's Fee (and, if applicable,
any prices established under Section 6.1.2 hereof) is less than the GMP, as such GMP
may have been adjusted over the course of the Project, the difference ("Savings") shall be
shared as follows:
Eighty percent (80%) to Design-Builder and twenty percent (20%) to the City.
6.5.2.2 Savings shall be calculated as part of the City's final payment under Section 7.3 hereof,
with the understanding that to the extent Design-Builder incurs costs after Final
Completion which would have been payable to Design-Builder as a Cost of the Work,
Design-Builder shall be entitled to payment from the City for that portion of such costs
that were allocated to the City as Savings.
Article 7
Procedure for Payment
7.1 Progress Payments
7.1.1 Design-Builder shall submit to the City on or before the twenty-fifth (25th) day of
each month, beginning with the first month after the Date of Commencement,
Design-Builder's Application for Payment in accordance with Article 6 of the
General Conditions of Contract.
7.1.2 The City shall make payment within thirty (30) days of City's receipt of each
properly submitted and accurate Application for Payment in accordance with
Article 6 of the General Conditions of Contract, but in each case less the total of
payments previously made, and less amounts properly withheld under Section 6.3
ofthe General Conditions of Contract.
7.1.3 If Design-Builder's Fee under Section 6.2.1 hereof is a fixed amount, the amount of
Design-Builder's Fee to be included in Design-Builder's monthly Application for
Payment and paid by the City shall be proportional to the percentage of the Work
completed, less payments previously made on account of Design-Builder's Fee.
7.2 Retainage on Progress Payments
7.2.1 Unless otherwise provided below, the City will retain ten percent (10%) of progress
payments for construction costs until thirty-five (35) days following recordation of a
Notice of Completion. City will not retain any portion of the progress payments
reflecting design costs.
7.2.2 In accordance with law, or otherwise, City may withhold payment (in excess of
retentions) or, on account of subsequently discovered evidence, nullify the whole or a
part of any certificate to such extent as may be necessary to protect City from loss on
account of the following:
.1 Defective work not in the process of being remedied .
. 2 "Stop Notice" or mechanic's liens claims filed with City .
. 3 State, federal and governmental agency claims or liens .
.4 Failure of Design-Builder, its Subcontractors or Sub-Subcontractors to make
payments properly to contractors for material or labor when no actual dispute
exists concerning such payment.
.5 Default of Design-Builder or its Design-Consultants in the performance of any
material term of this Agreement.
.6 If stop notices or mechanic's liens are filed against the Project or state, federal or
other governmental agency claims or liens are filed, City shall withhold the
amount required by law from progress payments or certificates until such claims
and liens shall have been resolved pursuant to applicable law. However, if the
cause of the stop notice is due to City's unexcused failure to pay Design-Builder
in accordance with the terms of this Agreement, then Design-Builder shall be
entitled to make a claim for any damages incurred as a result of or arising out of
the withholding.
7.2.3 Upon Substantial Completion of the entire Work or, if applicable, any portion of the
Work, pursuant to Section 6.4 of the General Conditions of Contract, City shall release to
Design-Builder all retained amounts relating, as applicable, to the entire Work or
completed portion of the Work, less an amount equal to the reasonable value of all
remaining or incomplete items of Work as noted in the Certificate of Substantial
Completion and less an amount equal to the reasonable value of the City's loss on
account of any items listed under Section 7.2.2 of this Agreement.
7.2.4 When the Certificate of Substantial Completion is fully executed and all remammg
incomplete items noted in the Certificate of Substantial Completion have been completed,
the City'S Representative will issue a Notice of Completion and within ten (10) days after
formal acceptance by the City Council of the City, will record such Notice of
Completion. A certified, conformed copy of the recorded Notice of Completion will be
sent to Design-Builder.
7.3 Final Payment. Design-Builder shall submit its Application for Final Payment to the
City in accordance with Section 6.6 of the General Conditions of Contract. The City shall
make payment on Design-Builder's properly submitted and accurate Application for
Final Payment within thirty (30) days after City's receipt of the Application for Final
Payment. provided that Design-Builder has satisfied the requirements for final payment
set forth in Section 6.6.2 of the General Conditions of Contract.
7.4 Record Keeping and Finance Controls. Design-Builder acknowledges that this
Agreement is to be administered on an "open book" arrangement relative to Cost of the
Work. Design-Builder shall keep full and detailed accounts and exercise such controls as
may be necessary for proper financial management, using accounting and control systems
in accordance with generally accepted accounting principles and as may be provided in
the Contract Documents. During the performance of the Work and for a period of three
(3) years from the effective date of the Notice of Completion, Design-Builder shall
preserve and City and City's accountants shall be afforded access from time to time, upon
reasonable notice, to Design-Builder's records, books, correspondence, receipts,
subcontracts, purchase orders, vouchers, memoranda and other data relating to the Work.
Article 8
Representatives of the Parties
8.1 City's Representatives
8.1.1 City designates the individual listed below as its Senior Representative ("City's Senior
Representative''), which individual has the authority and responsibility for avoiding and
resolving disputes under Section 10.2.3 ofthe General Conditions of Contract:
Rome) Antonio, P.E., Senior Project Engineer
City of Palo Alto, Water-Gas-Wastewater Utilities Engineering
1007 Elwell Court, Palo Alto, CA 94303
(650)566-4518 phone (650)566-4536 fax
romel.antonio@cityofpaloalto.org
8.1.2 City designates the individual listed below as its City'S Representative, which individual
has the authority and responsibility set forth in Section 3.2 of the General Conditions of
Contract:
Lex A. Corrales, P.E., President
Siegfried Engineering, Inc.
3244 Brookside Rd., Ste. 100, Stockton, CA 95219
(209)943-2021 phone (209) 942-0214 fax
lcorrales@siegfriedeng.com
8.2 Design-Builder's Representatives
8.2.1 Design-Builder designates the individual listed below as its Senior Representative
("Design-Builder's Senior Representative',), which individual has the authority and
responsibility for avoiding and resolving disputes under Section 10.2.3 of the General
Conditions of Contract:
Peter Anderson, President
Anderson-Pacific Engineering Construction, Inc.
1390 Nonnan Avenue
Santa Clara, CA 95054
(408) 970-9900 telephone (408) 970-9975 fax
pea@andpac.com
8.2.2 Design-Builder designates the individual listed below as its Design-Builder's
Representative, which individual has the authority and responsibility set forth in Section
2.1.1 of the General Conditions of Contract:
Mathew Miranda, Project Manager
Anderson-Pacific Engineering Construction, Inc.
1390 Nonnan Avenue
Santa Clara, CA 95054
(408) 970-9900 telephone (408) 970-9975 fax
mm@andpac.com
Article 9
Notices
9.1 All notices, demands or other communications required or pennitted to be given under
the Agreement shall be in writing and shall be deemed to have been duly delivered: (a) upon
personal delivery to the individual intended to receive such notice; (b) four (4) days after mailing
by United States mail, registered or certified, postage prepaid, addressed to the proper party at
the appropriate address set forth below; or (d) if transmitted by facsimile, by the time stated in a
machine generated confinnation that notice was received at the facsimile number of the intended
recipient at the appropriate fax number set forth below.
Ifto City:
Romel Antonio, P.E., Senior Project Engineer
City of Palo Alto, Water-Gas-Wastewater Utilities Engineering
1007 Elwell Court, Palo Alto, CA 94303
(650)566-4518 phone (650)566-4536 fax
romel.antonio@cityofpaloalto.org
If to Design-Builder:
Peter Anderson, President
Anderson Pacific Engineering Construction, Inc.
1390 Nonnan Avenue
Santa Clara, CA 95054
pea@andpac.com
In executing this Agreement, the City and Design-Builder each individually represents that it has
the necessary financial resources to fulfill its obligations under this Agreement, and each has the
necessary corporate approvals to execute this Agreement, and to perfonn the services described
herein.
CITY OF PALO ALTO
City Manager or his designee
APPROVED AS TO FORM:
Senior A5S1. City Attorney
AITACIIMENTS:
EXHIBIT "A": SCOPE OF WORK
ANDERSON-PACIFIC ENGu\"EERING
CONSTRUCTION, INC. // ~ ," Ii
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Title: \!~ {'oz:., (); ;;:;\" ;')~:',--;-
EXHIBIT "B":
EXHIBIT "C":
CONTRACr PRICE / GUARANTEED MAXIMUM PRICE
GENERAL CONDITIONS
EXHIBIT "D": PROJECT SCHEDULE
EXHIBIT "E": INSURANCE REQUIREMENTS
EXHIBIT "F": PERFORMANCE BOND
EXHIBIT "G": PAYMENT BOND
EXHIBIT A
SCOPE OF WORK
DESIGN-BUILDER shall perform all necessary design and furnish all material, equipment, tools
and labor necessary for the construction of two (2) fully operational emergency supply water
wells at the Eleanor Pardee Park and Library/Community Gardens sites for connection to the
CITY's water distribution system:
1. in accordance with the design criteria described in the Pre-Design Engineering Report
including, but not necessarily limited to,
• submittal of 1) Work Breakdown Structure (WBS) chart identifying the
required tasks and deliverables for the Project, 2) a Program Evaluation
and Review Technique (PERT) chart scheduling logic, sequences, and
duration of the tasks and deliverables including identifying the critical
path of the schedule, and 3) a Gantt chart representing the duration of the
Project tasks and deliverables against the progression of time;
• obtaining final approval of the Permit Amendment application from
CDPH;
• preparation of design drawings for submittal to CITY for review and
approval, including architectural renderings for presentation to the
Architectural Review Board (ARB);
• obtaining ARB approval of the architectural renderings;
• implementing all applicable mitigation measures of Table S-l, "Summary
of Impacts and Mitigation Measure for the City of Palo Alto Emergency
Water Supply and Storage Project";
• submittal of equipment and material specifications, product data, design
drawings, shop drawings and other documents to the CITY for review and
comment prior to starting the applicable Work;
• providing a qualified professional well construction expert to inspect the
well drilling, casing installation and well development and testing
activities;
• providing a certified inspector to inspect all of contractor's field work;
• facilitating and scheduling meetings on a regularly scheduled time
between the contractor's inspector, site superintendent and CITY
personnel to update Project progress and to resolve construction issues or
problems;
• coordinating construction activities to accommodate CITY activities on
the well sites, including utility work, park or library activities and events,
and applicable public activities or concerns; and submittal of detailed
record drawings of the work; and
2. in accordance with the Design-Builder's Proposal, dated August 14, 2009 and letter of
Proposal Clarification dated August 26, 2009 (attached).
City of Palo Alto
Purchasing/Contract Administration
August 26, 2009
Attn: Mr. Ramel Antonio, Project Manager
250 Hamilton Avenue
Palo Alto, CA 94301
Re: Additional Information for Staff Report
Mr, Antonio:
RFP Number 131390 (PART II)
DESIGN-BUILD OF WATER PRODUCTION WELLS
EMERGENCY WATER SUPPLY
ELEANOR PARDEE PARK AND LIBRARY/COMMUNITY GARDENS
As requested in the City of Palo Alto's email dated 8/24/09 we submit the following
responses to your questions.
1. Cost Break Down Summary
Attached please find Cost-Breakdowns using the CITY's format.
2. Clarification of design interface / approach with CITY SCADA
The SCADA design process will start with a meeting with CITY personnel
to identify the monitoring requirements for each site. These monitoring
requirements will be reflected in the design of the RTU with respect to the
inputs / outputs necessary to provide the required monitoring.
Programming will be performed on field equipment provide. SCADA
programming will utilize software and format this is compatible with
existing CITY equipment.
3. Opportunities to reduce mitigation costs
Cost identified in the section "Community Out Reach and Mitigation" refer
to the cost of conducting the environmental/ biological surveys required
in the EIR. It is doubtful that these costs could be reduced while still
adhering to the requirements of the EIR.
4. Estimate for permit fees
We were unable to obtain estimates from CPA Building Department or
CPAU for permit fees prior to the proposal deadline. In reviewing past
project in the City of Palo Alto we budgeted $4,000 for building permits
and $10,000 for CPAU connection fees. An adjustment will be made
when the actual cost are established.
SCVWD responded to our inquiry and identified fees of $300 for each
well.
1390 Norman Avenue
Santa Clara, CA 95054
408/970-9900
408/970-9975 Fax
5. impact of SCWJD permit process
It is our understanding that SCVWD is aware of the project, and will grant
approval upon completion of the permit application process and payment of
fee. We have coordinated with SCVWD on previous well projects, and are
familiar with their general requirements. We will start this process
immediately and follow up with SCWJD regularly so as to expedite the permit
process. We do not anticipate that the overall project schedule will be
impacted by the permit process.
Please feel free to contact Peter Anderson or me with additional question and I or
concerns.
/) ~incere~J. . (_ tlf
1)./1 . L(l'01 / I I I/(V Y Vv-"......-/"· /'
Matthew Mirenda
Project Manager
Anderson-Pacific Engineering Const. Inc.
1390 Norman Avenue
Santa Clara, CA 95054
408/970·9900
408/970-9975 Fa".:
Lie. No. 245215
EXHIBIT B
SUMMARY
DESIGN·BUILD PRICE
FOR CITY OF PALO ALTO
LIBRARY COMMUNITY GARDENS AND ELEANOR PARDEE PARK
EMERGENCY WATER WELL IMPROVEMENTS
DESCRIPTION
A. DESIGN·BUILDER FEE
1. LIBRARY COMMUNITY GARDENS WELL SITE
2. ELEANOR PARDEE PARK
B. COST OF WORK .
1. WELL CONSTRUCTION
a. LIBRARY COMMUNITY GARDENS
b. ELEANOR PARDEE PARK
2. WELL SITE FACILITIES
a. LIBRARY COMMUNITY GARDENS
$190,000
$190,000
$650,000
$600,000
1) EQUIPMENT $504,000
2) STRUCTURES & ARCHITECTURE (INCL. FEES) $185.000
b. ELEANOR PARDEE PARK
1) EQUIPMENT $442.000
2) STRUCTURES & ARCHITECTURE (INCL. FEES) $343.000
3. PROJECT MANAGEMENT AND MISCELLANEOUS
a. PROJECT MANAGEMENT
b. QC/QA & INSPECTION
C. MITIGATION
$246,000
$322,000
$198,000
TOTAL
$380,000
$1,250.000
$689.000
$785,000
$766,000
·$3j870tOOO
A:
B.
DESIGN·BUILD PRICE
FOR CITY OF PALO ALTO
LIBRARY COMMUNITY GARDENS
EMERGENCY WATER WELL IMPROVEMENTS
I ITEM IDESCRIPTION I QUANTITY I uNIT I uNIT PRICE I c:9ST
DESIGN-BUILDER'S FEE
1 1 DESIGN-BUILDER'S FEE 1 LS $190,000.00 $190,000.00
TOTAL DESIGN-BUILDER'S Fr;E
COST OF WORK
1. WATER WELL CONSTRUCTION
2 WELL PERMITS 1 LS $300.00 $300.00
DRILLING THE WELL (540')
INCLUDING FURNISHING AND
INSTALLING WELL CASING.
SCREENING, GRAVEL PACKING,
3 GROUTING, AND SEALING 1 LS $649,700.00 $649,700.00 MATERIALS, DEVELOPING AND
DISINFECTING THE WELL. AND
TESTING FOR PRODUCTION
CAPACITY AND WATER QUALITY OF
THE WELL.
TOTAL WATER WELL CONSTRUCTION PRICE
2. WATER WELL.SITE FACILITIES
a. EQUIPMENT
PUMP AND PIPING
4 SUBMERSIBLE PUMP AND 8" 1 LS $92,000.00 DISCHARGE PIPE $92,000.00
5 WELL DRAIN BOX SYSTEM 1 LS $15,000.00 $15,000.00
6 VALVES 1 LS $38,000.00 $38,000.00
12" DISCHARGE PIPE AND
7 CONNECTION TO CITY'S WATER 1 LS . $42,000.00 $42,000.00
MAIN
PUMP AND PIPING PRICE $187,000.00
SITE GRADING
8 GRADING 1 lS $18,000.00 $18,000.00
GRADING PRICE $18000.00
ELECTRICAL
9 1 ELECTRICAL 1 1 LS $180,000.001 $180,000.00
ELECTRICAL PRICE $180,000.00
SCADA
10 [SCADA I 1 LS I $45,000.001 $45000.00
SCADAPRICE $46.000.00
TOTAL EQUIPMENT PRICE
b. STRUCTURES & ARCHITECTURE
11 ARCHITECTURAL BUILDINGS 1 LS $227,000.00 $227,000.00
12 LANDSCAPING, IRRIGATION, 1 LS $32,000.00 $32,000.00 BENCHES, DECKING ETC.
TOTAL STRUCTURES & ARCHITECTURE PRICE (INCL. FEES)
3. PROJECT MANAGEMENT AND MISCELLANEOUS
a. PROJECT MANAGEMENT 1 LS $123,000.00 $123,000.00
b. QC/QA & INSPECTION 1 LS $161,000.00 $161,000.00
c. MITIGATION 1 . LS $99,000.00 $99,000.00
TOTAL PROJECT MANAGEMENT & MISCELLANEOUS PRICE
I TOTAL COST
$190,000.00
$650,000.00
$430,000.00
$259.000.00
$383,000.00
", : ,.,,:. '.':;'.; ,-,,-, ··<·.OS$I~~~$tlJt.:P<PRICEJ TQTAL#.$1.912~OOO.OO "
A.
B.
'---
:., '"
DESIGN-BUILD PRICE
FOR CITY OF PALO ALTO
ELEANOR PARDEE PARK
EMERGENCY WATER WELL IMPROVEMENTS
I ITEM IDE~I.iI'CIt" IIUN ~ QUAJ'oII!!!J UNl! U"IT~RIC~ ~
DESIGN-BUILDER'S FEE
I 1 DESIGN-BUILDER'S FEE 1 1 LS 1 $190,000.001
TOTAL DESIGN-BUILDER'S FEE
COST OF WORK
1. WATER WELL CONSTRUCTION
2 WELL PERMITS 1 LS $300.00
DRILLING THE WELL (540')
INCLUDING FURNISHING AND
INSTALLING WELL CASING,
SCREENING, GRAVEL PACKING,
3 GROUTING, AND SEALING 1 LS $599,700.00 MATERIALS, DEVELOPING AND
DISINFECTING THE WELL, AND
TESTING FOR PRODUCTION
CAPACITY AND WATER QUALITY OF
THE WELL.
TOTAL WATER WELL CONSTRUCTION PRICE
2. WATER WELL SITE FACILITIES
a. EQUIPMENT
PUMP AND PIPING
4 SUBMERSIBLE PUMP AND 8" 1 LS $98,000.00 DISCHARGE PIPE
5 WELL DRAIN BOX SYSTEM 1 LS $21,000.00
6 VALVES 1 LS' $38,000.00
12" DISCHARGE PIPE AND
7 CONNECTION TO CITY'S WATER 1 LS $31,000.00
MAIN
PUMP AND PIPING PRICE
SITE GRADING
8 IGRADING 1 LS $12,000.00
GRADING PRICE
ELECTRICAL
9 1 ELECTRICAL I 1 LS $170,000.00
ELECTRICAL PRICE
SCADA
10 lSCADA 1 LS $42.oo0.00J
SCADAPRICE
TOTAL EQUIPMENT PRICE
b. STRUCTURES & ARCHITECTURE
11 UNDERGROUND VAULT & ACCESS 1 LS $335,000.00 DeCKING
12 LANDSCAPING, IRRIGATION, 1 LS $38,000.00 BENCHES DECKING ETC.
TOTAL STRUCTURES & ARCHITECTURE PRICE (INCL. FEES)
3. PROJECT MANAGEMENT AND MISCELLANEOUS
a. PROJECT MANAGEMENT 1 LS $123,000.00
b. QC/QA & INSPECTION 1 LS $161000.00
c. MITIGATION 1 LS $99000.00
TOTAL PROJECT MANAGEMENT & MISCELLANEOUS PRICE
~T ~ TOTAL COST
$190,000.00
$190,000.00
$300.00
$599,700.00
$600,000.00
$98,000.00
$21,000.00
$38,000.00
$31,000.00
$188,000.00
$12,000.00
$12,000.00
$170,000.00
$170,000.00
$42,000.00
$42.000.00
$412,000.00
$335,000.00
$38,000.00
$373,000.00
$123,000.00
$161000.00
$99,000.00
$383,000.00
., , " , .' "'",;;,'> .::".... . ..... , ·.,:'DESI$N~$lJJ~Q',PRIQE,TOTAL =:,1',9SEl.OOQ.OO
EXHIBITC
GENERAL CONDITIONS
Article 1
General
1.1 Mutual Obligations
1.1.1 City and Design-Builder shall at all times cooperate fully with each other, and proceed on the
basis of trust and good faith, so that each party shall realize the benefits afforded under the
Contract Documents.
Article 2
Design-Builder's Services And Responsibilities
2.1 General Services
2.1.1 Design-Builder's Representative shall be reasonably available to City and shall have the
necessary expertise and experience required to supervise the Work. Design-Builder's
Representative shall communicate regularly with City and shall be vested with the authority to act
on behalf of Design-Builder. Design-Builder's Representative may be replaced only with the
agreement of the City.
2.1.2 Design-Builder shall provide City with a monthly status report detailing the progress of the Work,
including whether (i) the Work is proceeding according to schedule, (ii) discrepancies, conflicts,
or ambiguities exist in the Contract Documents that require resolution, (iii) health and safety
issues exist in connection with the Work, and (iv) other items require resolution so as not to
jeopardize Design-Builder's ability to complete the Work for the Contract Price and within the
Contract Time(s).
2.1.3 Design-Builder shall prepare and submit, at least three (3) days prior to the meeting contemplated
by Section 2.1.4 hereof, a Project Schedule including Work Breakdown Structure (WBS) and
Program Evaluation and Review Technique (PERT) charts for the execution of the Work for
City's review and response. The Project Schedule, including the WBS and PERT charts, shall
indicate the dates for the start and completion of the various stages of Work, including the dates
when City information and approvals are required to enable Design-Builder to complete the
Project within the Contract Time(s). The Project Schedule shall be revised as required by
conditions and progress of the Work, but such revisions shall not relieve Design-Builder of its
obligations to complete the Project within the Contract Time(s), as such dates may be adjusted in
accordance with the Contract Documents. City's review of and response to the Project Schedule
shall not relieve Design-Builder of its complete and exclusive obligation to control the means,
methods, sequences and techniques for executing the Work.
2.1.4 The Parties will meet within seven (7) days after execution of the Agreement to discuss issues
affecting the administration of the Work and to implement the necessary procedures, including
procedures relating to submittals and payment, to facilitate the ability of the Parties to perform
their obligations under the Contract Documents.
2.2 Design Professional Services
2.2.1 Consistent with State of California licensing laws, Design-Builder shall provide the necessary
design services, including architectural, engineering and other design professional services for the
preparation of the required drawings, specifications and other design submittals to complete the
Project consistent with the Contract Documents through qualified, licensed design professionals
employed by Design-Builder or procured from qualified, independent licensed Design
Consultants.
2.2.2 Design-Builder is an independent contractor and is not an agent or employee of the City. Nothing
in the Contract Documents creates any legal or contractual relationship between the City and any
Design Consultant.
2.3 Standard of Care for Design Professional Services
2.3.1 The standard of care for all design professional services performed to execute the Work shall be
the care and skill ordinarily used by members of the design profession practicing under similar
conditions at the same time and locality of the Project. Notwithstanding the preceding sentence,
in the event the Contract Documents specify that portions of the Project be performed in
accordance with specific performance standards, the design professional services shall be
performed to achieve such standards.
2.4 Design Development Services
2.4.1 Design-Builder and City shall, consistent with any applicable prOVISiOn of the Contract
Documents, agree upon any interim design submissions that City may wish to review, which
interim design submissions may include design criteria, drawings, diagrams and specifications
setting forth the Project requirements. On or about the time of the scheduled submissions, Design-
Builder and City shall meet and confer about the submissions, with Design-Builder identifying
during such meetings, among other things, the evolution of the design and any significant changes
or deviations from the Contract Documents, or, if applicable, previously submitted design
submissions. Minutes of the meetings will be maintained by Design-Builder and provided to all
attendees for review within seven (7) days of the meeting. Following the design review meeting,
City shall review and approve the interim design submissions in a time that is consistent with the
turnaround times set forth in the Project Schedule.
2.4.2 Design-Builder shall submit to City Construction Documents setting forth in detail drawings and
specifications describing the requirements for construction of the Work. The Construction
Documents shall be consistent with the latest set of interim design submissions, as such
submissions may have been modified in design review meetings. The Parties shall have a design
review meeting to discuss, and City shall review and approve, the Construction Documents in
accordance with the procedures set forth in Section 2.4.1 above. Design-Builder shall proceed to
construct the Project in accordance with the approved Construction Documents and shall submit
one set of approved Construction Documents to City prior to commencement of construction.
2.4.3 City's review and approval of interim design submissions and the Construction Documents is for
the purpose of mutually establishing a conformed set of Contract Documents compatible with the
requirements of the Work and consistent with the PER. Neither City's review nor approval of any
interim design submissions and Construction Documents shall be deemed to transfer any design
liability from Design-Builder to City.
2.4.4 To the extent not prohibited by the Contract Documents or Legal Requirements and subject to the
City's approval, Design-Builder may prepare interim design submissions and Construction
Documents for a portion of the Work to permit construction to proceed on that portion of the
Work prior to completion of the Construction Documents for the entire Work.
2.5 Legal Requirements
2.5.1 Design-Builder shall perform the Work in accordance with all Legal Requirements and shall
provide all notices applicable to the Work as required by the Legal Requirements.
2.5.2 The Contract Price and/or Contract Time(s) shall be adjusted to compensate Design-Builder for
the effects of any changes in the Legal Requirements enacted after the date of the Agreement
affecting the performance of the Work, or if a Guaranteed Maximum Price is established after the
date of the Agreement, the date the Parties agree upon the Guaranteed Maximum Price. Such
changes may include, without limitation, revisions Design-Builder is required to make to the
Construction Documents because of changes in Legal Requirements.
2.6 Permits and Approvals
2.6.1 Design-Builder shall provide, procure and pay for all permits, approvals, licenses and fees
required for construction of the Project. Payment of all costs and expenses for such permits,
approvals, licenses and fees shall be included in the Cost of the Work pursuant to Section 6.3 of
the Agreement.
2.7 Design-Builder's Construction Phase Services
2.7.1 Unless otherwise provided in the Contract Documents, Design-Builder shall provide through
itself or Subcontractors the necessary supervision, labor, inspection, testing, start-up, material,
equipment, machinery, temporary utilities, and all other temporary facilities necessary to
complete the Project consistent with the Contract Documents.
2.7.2 Design-Builder shall perform all construction activities efficiently and with the requisite
expertise, skill and competence to satisfy the requirements of the Contract Documents. Design-
Builder shall at all times exercise complete and exclusive control over the means, methods,
sequences and techniques of construction.
2.7.3 Design-Builder shall employ only Subcontractors who are duly licensed, qualified to perform the
Work consistent with the Contract Documents, and in compliance with all applicable laws of the
City and all other governmental entities including, but not limited to, the state, federal and county
governments. The City may reasonably object to Design-Builder's selection of any
Subcontractor.
2.7.4 Design-Builder assumes responsibility to City for the proper performance of the Work of
Subcontractors and any acts and omissions in connection with such performance. Nothing in the
Contract Documents shall create any legal or contractual relationship between City and any
Subcontractor or Sub-Subcontractor, including but not limited to any third-party beneficiary
rights. Design-Builder shall bind every Subcontractor (and require every Subcontractor to so
bind its subcontractors and material suppliers) to all the provision of the Agreement and the
Contract Documents as they apply to the Subcontractor's portion of the Work.
2.7.5 All Subcontractors and Sub-Subcontractors must comply with the terms of the Contract
Documents. Design-Builder shall contractually require its Subcontractors and Sub-
Subcontractors to cooperate with, and coordinate their activities so as not to interfere with
separate contractors under the City's control, in order to enable the timely completion of the
Project. If the City performs other Work on the Project or at the Site with separate contractors
under City's control, Design-Builder shall reasonably cooperate and coordinate its activities with
the activities of such separate contractors so that the Project can be completed in an orderly and
coordinated manner without unreasonable disruption.
2.7.6 Design-Builder shall keep the sites reasonably free from debris, trash and construction wastes,
and shall perform its construction services efficiently, safely and without interfering with the use
of adjacent land areas. Upon Substantial Completion of the Work, or a portion of the Work,
Design-Builder shall remove all debris, trash, construction wastes, materials, equipment,
machinery and tools arising from the Work or applicable portions thereof to permit City to
occupy the Project or a portion of the Project for its intended use.
2.8 Design-Builder's Responsibility for Project Safety
2.8.1 Design-Builder recognizes the importance of performing the Work in a safe manner so as to
prevent damage, injury or loss to (i) all individuals at the Site, whether working or visiting, (ii)
the Work, including materials and equipment incorporated into the Work or stored on-Site or off-
Site, and (iii) all other property at the Site or adjacent thereto. Design-Builder assumes
responsibility for implementing and monitoring all safety precautions and programs related to the
performance of the Work. Design-Builder shall, prior to commencing construction, designate an
individual at the Site in the employ of Design-Builder who shall act as Design Builder's
designated safety representative with the necessary qualifications and experience to supervise the
implementation and monitoring of all safety precautions and programs related to the Work.
Unless otherwise required by the Contract Documents, Design-Builder's designated safety
representative shall be an individual stationed at the Site and may have responsibilities on the
Project in addition to safety. The designated safety representative shall make routine daily
inspections of the Site and shall hold weekly safety meetings with Design-Builder's personnel,
Subcontractors and others as necessary or appropriate.
2.8.2 Design-Builder and Subcontractors shall comply with all Legal Requirements relating to safety,
as well as any City-specific safety requirements set forth in the Contract Documents, provided
that such City-specific requirements do not violate any applicable Legal Requirements. Design-
Builder will immediately report in writing any safety-related injury, loss, damage or accident
arising from the Work to City's Representative and, to the extent mandated by Legal
Requirements, to all government or quasi-government authorities having jurisdiction over safety-
related matters involving the Project or the Work.
2.8.3 Design-Builder's responsibility for safety under this section 2.8 does not relieve Subcontractors
and Sub-Subcontractors of their own contractual and legal obligations and responsibility for (i)
complying with all Legal Requirements, including Legal Requirements related to health and
safety matters, and (ii) taking all necessary measures to implement and monitor all safety
precautions and programs to guard against injury, losses, damages or accidents resulting from
their performance of the Work.
2.9 Design-Builder's Warranty
2.9.1 Design-Builder warrants to City that the construction, including all materials and equipment
furnished as part of the construction, shall be: (a) of good quality and new; (b) in conformance
with the Contract Documents; (c) free of defects in materials and workmanship; (d) performed in
a good and workmanlike manner; and (e) in compliance with Legal Requirements and conditions
of the permits. In the event any construction does not conform with the requirements of the
preceding sentence, Design-Builder shall correct such nonconformances in accordance with
Section 2.10 hereof. Design-Builder's warranty obligation excludes defects caused by abuse,
alterations, or failure to maintain the Work by persons other than Design-Builder or anyone for
whose acts Design-Builder is responsible. Nothing in this warranty limits any manufacturer's
warranty which provides City with greater warranty rights than set forth in this Section 2.9 or the
Contract Documents. Design-Builder will provide City with all manufacturers' warranties upon
Substantial Completion.
2.10 Correction of Defective Work
2.10.1 Design-Builder will correct any defective Work that is not in conformance with the Contract
Documents, including that part of the Work subject to Section 2.9 hereof, within a period of one
year from the date of Substantial Completion of the Work or any portion of the Work, or within
such longer period to the extent required by the Contract Documents.
2.10.2 Design-Builder shall, within seven (7) days of receipt of written notice from City that the Work is
not in conformance with the Contract Documents, commence correction of such nonconforming
Work, including the correction, removal or replacement of the nonconforming Work and any
damage caused to other parts of the Work affected by the nonconforming Work. If Design-
Builder fails to commence the necessary steps within such seven (7) day period, City, in addition
to any other remedies provided under the Contract Documents, may provide Design-Builder with
written notice that City will commence correction of such nonconforming Work with its own
forces. If City does perform such corrective Work, Design-Builder shall be responsible for all
reasonable costs incurred by City in performing such correction. If the nonconforming Work
creates an emergency requiring an immediate response, Design-Builder shall immediately take
steps to correct the problem, and shall not have the seven (7) day period identified herein in
which to commence correction of the nonconforming Work.
2.10.3 The one (1) year period referenced in Section 2.10.1 above applies only to Design-Builder's
obligation to correct nonconforming Work and does not constitute a period of limitations for any
other rights or remedies City may have regarding Design-Builder's other obligations under the
Contract Documents.
Article 3
City's Services And Responsibilities
3.1 Duty to Cooperate
3.1.1 City shall, throughout the performance of the Work, cooperate with Design-Builder and perform
its responsibilities, obligations and services in a timely manner to facilitate Design-Builder's
timely and efficient performance of the Work and so as not to delay or interfere with Design-
Builder's performance of its obligations under the Contract Documents.
3.1.2 City shall provide timely reviews and approvals of interim design submissions and Construction
Documents consistent with the turnaround times set forth in the Project Schedule.
3.2 City's Representative
3.2.1 City's Representative shall be responsible for providing City supplied information and approvals
in a timely manner so that Design-Builder can fulfill its obligations under the Contract
Documents. City's Representative shall also provide Design-Builder with prompt notice if it
observes any failure on the part of Design-Builder to fulfill its contractual obligations, including
any errors, omissions or defects in the performance of the Work.
3.3 Furnishing of Services and Information
3.3.1 Unless expressly stated to the contrary in the Contract Documents, if requested in writing by
Design-Builder, City shall provide to Design-Builder the following:
.1 Surveys describing the property, boundaries, topography and reference points for use
during construction, including existing service and utility lines; .
. 2 Geotechnical studies describing subsurface conditions, and other surveys describing other
latent or concealed physical conditions at the Site;
.3 Temporary and permanent easements, zoning and other requirements and encumbrances
affecting land use, or necessary for the proper design and construction of the Project and
to enable Design-Builder to perform the Work;
.4 A legal description ofthe Site;
.5 To the extent available, as-built and record drawings of any existing structures at the Site;
and
.6 To the extent available, environmental studies, reports and impact statements describing
the environmental conditions, including Hazardous Conditions, in existence at the Site.
3.3.2 City is responsible for securing and executing all necessary agreements with adjacent land or
property owners that are necessary to enable Design-Builder to perform the Work. City is further
responsible for all costs, including attorneys' fees, incurred in securing these necessary
agreements.
3.4 Permits and Approvals
3.4.1 City shall provide reasonable assistance to Design-Builder in obtaining permits, approvals and
licenses that are Design-Builder's responsibility, provided however, that the City shall not be
obligated to incur any third party cost or expense in respect of the same.
3.5 City's Separate Contractors
3.5.1 City is responsible for all Work performed on the Project or at the Site by separate contractors
under City's control. City shall contractually require its separate contractors to cooperate with,
and coordinate their activities so as not to interfere with Design-Builder in order to enable
Design-Builder to timely complete the Work consistent with the Contract Documents.
Article 4
Hazardous Conditions and Differing Site Conditions
4.1 Hazardous Conditions
4.1.1 Unless otherwise expressly provided in the Contract Documents to be part of the Work, Design~
Builder is not responsible for any existing Hazardous Conditions encountered at the Site. Upon
encountering any Hazardous Conditions, Design~Builder will stop Work immediately in the
affected area and duly notify City in writing and, if required by Legal Requirements, all
government or quasi~government entities with jurisdiction over the Project or Site.
4.1.2 Upon receiving notice of the presence of suspected Hazardous Conditions, City shall take the
necessary measures required to ensure that the Hazardous Conditions are remediated or rendered
harmless. Such necessary measures shall include City retaining qualified independent experts to
(i) ascertain whether Hazardous Conditions have actually been encountered, and, if they have
been encountered, (ii) prescribe the remedial measures that City must take either to remove the
Hazardous Conditions or render the Hazardous Conditions harmless.
4.1.3 Design-Builder shall be obligated to resume Work at the affected area of the Project after City's
expert provides it with written certification that (i) the Hazardous Conditions have been removed
or rendered harmless and (ii) all necessary approvals have been obtained from all government and
quasi-government entities having jurisdiction over the Project or Site.
4.1.4 Design~Builder will be entitled, in accordance with the General Conditions of Contract, to an
adjustment in its Contract Price and/or Contract Time(s) to the extent Design~Builder's cost
and/or time of performance have been adversely impacted by the presence of Hazardous
Conditions.
4.1.5 To the extent not caused by the solely negligent acts or omissions of Design-Builder, Design
Consultants, Subcontractors, Sub~Subcontractors, anyone employed directly or indirectly for any
of them, or their officers, directors, employees and agents, City shall indemnify, defend and hold
harmless Design-Builder, Design Consultants, Subcontractors, Sub-Subcontractors, anyone
employed directly or indirectly for any of them, and their officers, directors, employees and
agents, from and against any and all claims, losses, damages, liabilities and expenses, including
attorneys' fees and expenses, arising out of or resulting from the presence, removal or
remediation of Hazardous Conditions at the Site which were on the Site prior to the date of the
Agreement.
4.1.6 Notwithstanding the preceding prOVISIons of this Section 4.1, City is not responsible for
Hazardous Conditions introduced to the Site by Design~Builder, Subcontractors, Sub~
Subcontractors or anyone for whose acts they may be liable. Design~Builder shall indemnify,
defend and hold harmless City and City's officers, directors, employees and agents from and
against all claims, losses, damages, liabilities and expenses, including attorneys' fees and
expenses, arising out of or resulting from Hazardous Conditions introduced to the Site by Design-
Builder, its Subcontractors, Sub-Subcontractors or anyone for whose acts they may be liable.
4.2 Differing Site Conditions
4.2.1 Concealed or latent physical conditions or subsurface conditions at the Site that (i) materially
differ from the conditions indicated in the Contract Documents or (ii) are of an unusual nature,
differing materially from the conditions ordinarily encountered and generally recognized as
inherent in the Work are collectively referred to herein as "Differing Site Conditions." If Design-
Builder encounters a Differing Site Condition, the Parties shall meet and confer in order to
determine if an adjustment in the Contract Price and/or Contract Time(s) is warranted to the
extent Design-Builder's cost and/or time of performance are adversely impacted by the Differing
Site Condition.
4.2.2 Upon encountering a Differing Site Condition, Design-Builder shall, within fourteen (14) days
after discovery of the Differing Site Condition, provide prompt written notice to City of such
condition, setting forth with specificity the nature of the Differing Site Condition and a
recommendation for handling the Differing Site Condition in a manner which causes the least
disruption to the Project Schedule. Design-Builder shall, to the extent reasonably possible,
provide such notice before the Differing Site Condition has been disturbed or altered.
4.2.3 Notwithstanding the foregoing, in the event the Parties are unable to agree to an adjustment in the
Contract Price and/or Contract Time within sixty (60) days of the City's receipt of notice in
accordance with Section 4.2.2 above, the City may at its election (i) terminate the Agreement in
accordance with Article 8 of the Agreement, or (ii) resolve the dispute using the procedures
established in Article 10 of these General Conditions of Contract.
Article 5
Insurance and Bonds
5.1 Design-Builder's Insurance Requirements
5.1.1 Design-Builder is responsible for procuring and maintaining from insurance companies
authorized to do business in California, and with a minimum rating set forth herein, the following
insurance coverages for certain claims which may arise from or out of the performance of the
Work and obligations under the Contract Documents:
Insurance Requirements (Exhibit E)
5.1.2 Design-Builder's liability insurance shall include completed operations insurance for the period
of time set forth in the Contract Documents.
5.1.3 Design-Builder'S liability insurance shall specifically delete any design-build or similar
exclusions that could compromise coverages because of the design-build delivery of the Project.
5.1.4 To the extent City requires Design-Builder or any Design Consultant to provide professional
liability insurance for claims arising from the negligent performance of design services by
Design-Builder or the Design Consultant, the coverage limits, duration and other specifics of such
insurance shall be as set forth in Article 5 hereof. Any professional liability insurance shall
specifically delete any design-build or similar exclusions that could compromise coverages
because of the design-build delivery of the Project. Such policies shall be provided prior to the
commencement of any design services under the Contract Documents.
5.1.5 Prior to commencing any construction services under the Contract Documents, Design-Builder
shall provide City with certificates evidencing that (i) all insurance obligations required by the
Contract Documents are in full force and in effect and will remain in effect for the duration
required by the Contract Documents and (ii) no insurance coverage will be canceled, renewal
refused, or materially changed unless at least thirty (30) days prior written notice is given to City.
5.2 City's Property Insurance
5.2.1 Unless otherwise provided in the Contract Documents, City shall procure and maintain from
insurance companies authorized to do business in the state in which the Project is located,
property insurance upon the entire Project to the full insurable value of the Project, including
professional fees, overtime premiums and all other expenses incurred to replace or repair the
insured property. The property insurance obtained by City shall include as additional insureds the
interests of City, Design-Builder, Design Consultants, Subcontractors and Sub-Subcontractors,
and shall insure against the perils of fire and extended coverage, theft, vandalism, malicious
mischief, collapse, flood, earthquake, debris removal and other perils or causes of loss as called
for in the Contract Documents. The property insurance shall include physical loss or damage to
the Work, including materials and equipment in transit, at the Site or at another location as may
be indicated in Design-Builder's Application for Payment and approved by City.
5.2.2 Unless the Contract Documents provide otherwise, City shall procure and maintain boiler and
machinery insurance that will include the interests of City, Design-Builder, Design Consultants,
Subcontractors and Sub-Subcontractors.
5.2.3 Any loss covered under City'S property insurance shall be adjusted with City and Design-Builder
and made payable to both of them as trustees for the insured as their interests may appear, subject
to any applicable mortgage clause. All insurance proceeds received as a result of any loss will be
placed in a separate account and distributed in accordance with such agreement as the interested
parties may reach. Any disagreement concerning the distribution of any proceeds will be resolved
in accordance with Article 10 hereof.
5.2.4 City and Design-Builder waive against each other and City'S separate contractors, Design
Consultants, Subcontractors, agents and employees of each and all of them, all damages covered
by property insurance provided herein, except such rights as they may have to the proceeds of
such insurance. Design-Builder and City shall, where appropriate, require similar waivers of
subrogation from City's separate contractors, Design Consultants and Subcontractors and each of
them shall include similar waivers in their contracts.
5.3 Bonds and Other Performance Security. Design-Builder shall obtain performance and labor
and material payment bonds, or other forms of performance security, the amount, form and other
conditions of such security as set forth herein:
5.3.1 General Requirement .
. 1 Before allowing a contractor to enter upon the Site and perform Project construction
work, Design-Builder shall file with City four (4) duplicates of each performance bond
and payment bond, in the form attached to the Agreement as Exhibits F and G,
respectively, and incorporated herein by this reference, required under this section.
These bonds shall be in the amounts and for the purposes specified below. The surety
bonds shall be issued by an admitted surety insurer which complies with the provisions of
the California Code of Civil Procedure §995.660 .
. 2 Should any surety or sureties upon said bonds or any of them become insufficient,
Design-BuiIder's contractors shall obtain replacement bonds with good and sufficient
sureties within ten (10) days after receiving notice from City that the surety or sureties
are insufficient. The costs of any required bonds (whether original or replacement) are
included in the GMP.
5.3.2 Performance Bond. Design-Builder shall post: (a) a performance bond in favor of City in
substantially the form attached to the Agreement as Exhibit F, as security for the faithful
performance by Design-Builder of its obligations under the Agreement, and (b) require each
Subcontractor or Sub-Subcontractor to deliver to City an executed performance bond in favor of
City in substantially the form attached to the Agreement as Exhibit F, as security for the faithful
performance by such contractor of the contractor's obligations under its construction contract.
The cost of the foregoing bonds are included in the GMP.
5.3.3 Payment Bond. Design-Builder shall obtain a payment bond in favor of City in substantially the
form attached to the Agreement as Exhibit G, as security for the payment to the Subcontractors
or Sub-Subcontractors, and (b) require each Subcontractor or Sub-Subcontractor to deliver to City
an executed payment bond in favor of City in an amount equal to 100% of the contract sum of
such Subcontractor or Sub-Subcontractor's construction contract as security for the payment of
all persons performing labor and furnishing materials under such construction contract. The cost
of the foregoing bonds is included in the GMP.
5.3.4 Warranty Bond. Design-Builder shall deliver to City, substantially in the form of the City's
standard defective materials and workmanship bond attached to the Agreement as Exhibit
F, in the amount of 10% of the construction costs for the Project, concurrent with the release of
the performance bond required in Section 5.3.2 hereof, a warranty bond conditioned upon the
Design-Builder correcting any defective work of improvement or materials incorporated into the
Project that is discovered within one (1) year following issuance of a Notice of Completion for
the Project by the City. In lieu of a warranty bond, the Program Manager may extend the
performance bond for one year following recording of the Notice of Completion.
Article 6
Payment
6.1 Schedule of Values
6.1.1 Within ten (10) days of execution of the Agreement, Design-Builder shall submit for City's
review and approval a schedule of values for all of the Work. The schedule of values will (i)
subdivide the Work into its respective parts, (ii) include values for all items comprising the Work
and (iii) serve as the basis for monthly progress payments made to Design-Builder throughout the
Work. .
6.2 Monthly Progress Payments
6.2.1 On or before the date established in the Agreement, Design-Builder shall submit its Application
for Payment to the City. The City shall have five (5) business days to review and approve the
Application for Payment requesting payment for all Work performed as of the date of the
Application for Payment. The Application for Payment shall be accompanied by all supporting
documentation required by the Contract Documents and/or established at the meeting required by
Section 2.1.4 hereof. The City shall make payment within thirty (30) days of City's receipt of
each properly submitted and accurate Application for Payment, but in each case less the total of
payments previously made, and less amounts properly withheld under Section 6.3 hereof.
6.2.2 The Application for Payment may request payment for equipment and materials not yet
incorporated into the Project, provided that (i) City is satisfied that the equipment and materials
are suitably stored at either the Site or another acceptable location, (ii) the equipment and
materials are protected by suitable insurance and (iii) upon payment, City will receive the
equipment and materials free and clear of all liens and encumbrances.
6.2.3 The Application for Payment shall constitute Design-Builder's representation that the Work has
been performed consistent with the Contract Documents, has progressed to the point indicated in
the Application for Payment, and that title to all Work will pass to City free and clear of all
claims, liens, encumbrances, and security interests upon the incorporation of the Work into the
Project, or upon Design-Builder's receipt of payment, whichever occurs earlier.
6.3 Withholding of Payments
6.3.1 On or before the date established in the Agreement, City shall pay Design-Builder all amounts
properly due. If City determines that Design-Builder is not entitled to all or part of an
Application for Payment, it will notify Design-Builder in writing at least five (5) days prior to the
date payment is due. The notice shall indicate the specific amounts City intends to withhold, the
reasons and contractual basis for the withholding, and the specific measures Design-Builder must
take to rectify City's concerns. Design-Builder and City will attempt to resolve City's concerns
prior to the date payment is due. If the Parties cannot resolve such concerns, Design-Builder may
pursue its rights under the Contract Documents, including the rights under Article 10 hereof.
6.3.2 Notwithstanding anything to the contrary in the Contract Documents, City shall pay Design-
Builder all undisputed amounts in an Application for Payment within the times required by the
Agreement.
6.4 Design-Builder's Payment Obligations
6.4.1 Design-Builder will pay Design Consultants and Subcontractors, in accordance with its
contractual obligations to such parties, all the amounts Design-Builder has received from City on
account of their work. Design-Builder will impose similar requirements on Design Consultants,
Subcontractors and Sub-Subcontractors to pay parties with whom they have contracted.
6.5 Substantial Completion
6.5.1 Design-Builder shall notify City when it believes the Work, or to the extent permitted in the
Contract Documents, a portion of the Work, is substantially complete. Within five (5) days of
City's receipt of Design-Builder's notice, City and Design-Builder will jointly inspect such Work
to verify that it is substantially complete in accordance with the requirements of the Contract
Documents. If such Work is substantially complete, City shall prepare and issue a Certificate of
Substantial Completion that will set forth (i) the date of Substantial Completion of the Work or
portion thereof, (ii) the remaining items of Work that have to be completed before final payment,
(iii) provisions (to the extent not already provided in the Contract Documents) establishing City's
and Design-Builder's responsibility for the Project's security, maintenance, utilities and insurance
pending final payment and (iv) an acknowledgment that warranties commence to run on the date
of Substantial Completion, except as may otherwise by noted in the Certificate of Substantial
Completion.
6.5.2 Upon Substantial Completion of the entire Work or, if applicable, any portion of the Work, City
shall release to Design-Builder all retained amounts relating, as applicable, to the entire Work or
completed portion of the Work, less an amount equal to the reasonable value of all remaining or
incomplete items of Work as noted in the Certificate of Substantial Completion.
6.5.3 City, at its option, may use a portion of the Work which has been determined to be substantially
complete, provided, however, that (i) a Certificate of Substantial Completion has been issued for
the portion of Work and addressing the items set forth in Section 6.5.1 above, (ii) Design-Builder
and City have obtained the consent of their sureties and insurers, and to the extent applicable, the
appropriate government authorities having jurisdiction over the Project, and (iii) City and Design-
Builder agree that City's use or occupancy will not interfere with Design-Builder's completion of
the remaining Work.
6.6 Final Payment
6.6.1 Mter receipt of an Application for Final Payment from Design-Builder, City shall make final
payment by the time required in the Agreement, provided that Design-Builder has completed all
of the Work in conformance with the Contract Documents.
6.6.2 At the time of submission of its Application for Final Payment, Design-Builder shall provide the
following information:
.1 an affidavit that there are no claims, obligations, liens or stop notices outstanding or
unsatisfied for labor, services, material, equipment, taxes or other items performed,
furnished or incurred for or in connection with the Work which will in any way affect
City's interests;
.2 a general release executed by Design-Builder waiving, upon receipt of final payment by
Design-Builder, all claims, except claims previously made in writing to City and
remaining unsettled at the time of final payment;
.3 consent of Design-Builder's surety, if any, to final payment;
.4 all operating manuals, warranties and other deliverables required by the Contract
Documents; and
.5 certificates of insurance confirming that required coverages will remain In effect
consistent with the requirements of the Contract Documents.
6.6.3 Upon making final payment, City waives all claims against Design-Builder except claims relating
to (i) Design-Builder's failure to satisfy its payment obligations, if such failure affects City's
interests, (ii) Design-Builder's failure to complete the Work consistent with the Contract
Documents, including defects appearing both before and after Substantial Completion and (iii)
the terms of any special warranties required by the Contract Documents.
Article 7
Indemnification
7.1 Patent and Copyright Infringement
7.1.1 Design-Builder shall defend any action or proceeding brought against City based on any claim
that the Work, or any part thereof, or the operation or use of the Work or any part thereof,
constitutes infringement of any United States patent or copyright, now or hereafter issued. City
shall give prompt written notice to Design-Builder of any such action or proceeding and will
reasonably provide authority, information and assistance in the defense of same. Design-Builder
shall indemnify and hold harmless City from and against all damages and costs, including but not
limited to attorneys' fees and expenses awarded against City or Design-Builder in any such action
or proceeding. Design-Builder shall keep City informed of all developments in the defense of
such actions.
7.1.2 If City is enjoined from the operation or use of the Work, or any part thereof, as the result of any
patent or copyright suit, claim, or proceeding, Design-Builder shall at its sole expense take
reasonable steps to procure the right to operate or use the Work. If Design-Builder cannot so
procure such right within a reasonable time, Design-Builder shall promptly, at Design-Builder's
option and at Design-Builder's expense, (i) modify the Work so as to avoid infringement of any
such patent or copyright or (ii) replace said Work with Work that does not infringe or violate any
such patent or copyright.
7.1.3 Sections 7.1.1 and 7.1.2 above shall not be applicable to any suit, claim or proceeding based on
infringement or violation of a patent or copyright (i) relating solely to a particular process or
product of a particular manufacturer specified by City and not offered or recommended by
Design-Builder to City or (ii) arising from modifications to the Work by City or its agents after
acceptance of the Work. If the suit, claim or proceeding is based upon events set forth in the
preceding sentence, City shall defend, indemnify and hold harmless Design-Builder to the same
extent Design-Builder is obligated to defend, indemnify and hold harmless City in Section 7.1.1
above.
7.1.4 The obligations set forth in this Section 7.1 shall constitute the sole agreement between the
Parties relating to liability for infringement of violation of any patent or copyright.
7.2 Design-Builder's Indemnification for Professional Design Services
7.2.1 In connection with its professional design services, and to the fullest extent permitted by law,
Design-Builder shall protect, indemnify, defend and hold harmless City, its Council members,
officers, employees and agents (each an "Indemnified Party") from and against any and all
demands, claims, or liability of any nature, including death or injury to any person, property
damage or any other loss, including all costs and expenses of whatever nature including attorneys
fees, expert fees, court costs and disbursements ("Claims") that arise out of, pertain to, or relate to
the negligence, recklessness, or willful misconduct of Design-Builder or any of its officers,
employees, subconsultants, agents or contractors in the performance of its professional design
services under the Agreement, regardless of whether or not it is caused in part by an Indemnified
Party.
7.2.2 If an employee of Design-Builder, Design Consultants, Subcontractors, anyone employed directly
or indirectly by any of them or anyone for whose acts any of them may be liable has a claim
against City, its officers, directors, employees, or agents, Design-Builder's indemnity obligation
set forth in Section 7.2.1 above shall not be limited by any limitation on the amount of damages,
compensation or benefits payable by or for Design-Builder, Design Consultants, Subcontractors,
or other entity under any employee benefit acts, including workers' compensation or disability
acts.
7.3 Design-Builder's General Indemnification
7.3.1 In connection with all claims not covered by Section 7.2 above, and to the fullest extent permitted
by law, Design-Builder shall protect, indemnify, defend and hold harmless City, its Council
members, officers, employees and agents (each an "Indemnified Party") from and against any and
all demands, claims, or liability of any nature, including death or injury to any person, property
damage or any other loss, including all costs and expenses of whatever nature including attorneys
fees, expert fees, court costs and disbursements ("Claims") resulting from, arising out of or in any
manner related to performance or nonperformance by Design-Builder, Design Consultants,
Subcontractors, anyone employed directly or indirectly by any of them or anyone for whose acts
any of them may be liable, regardless of whether or not it is caused in part by an Indemnified
Party .
. 1 Notwithstanding the above, nothing in this Section 7.3 shall be construed to require
Design-Builder to indemnify an Indemnified Party from Claims arising from the active
negligence, sole negligence or willful misconduct of an Indemnified Party .
. 2 The acceptance of Design-Builder's services and duties by City shall not operate as a
waiver of the rights of indemnification. The provisions of this Section 7.3 shall survive
the expiration or early termination of the Agreement.
7.4 City's General Indemnification
7.4.1 City, to the fullest extent permitted by law, shall indemnify, hold harmless and defend Design-
Builder and any of Design-Builder's officers, directors, employees, or agents from and against
claims, losses, damages, liabilities, including attorneys' fees and expenses, for bodily injury,
sickness or death, and property damage or destruction (other than to the Work itself) to the extent
resulting from the sole negligent acts or omissions of City's separate contractors or anyone for
whose acts any of them may be liable.
Article 8
Time
8.1 Obligation to Achieve the Contract Times
8.1.1 Design-Builder will commence performance of the Work and achieve the Contract Time(s) in
accordance with Article 5 of the Agreement.
8.2 Delays to the Work
8.2.1 If Design-Builder is delayed in the performance of the Work due to acts, omissions, conditions,
events, or circumstances beyond its control and due to no fault of its own or those for whom
Design-Builder is responsible, the Contract Time(s) for performance shall be reasonably extended
by Change Order. By way of example, events that will entitle Design-Builder to an extension of
the Contract Time(s) include acts or commissions of City or anyone under City's control
(including separate contractors), changes in the Work, Differing Site Conditions, Hazardous
Conditions, wars, floods, labor disputes, unusual delay in transportation, epidemics abroad,
earthquakes, adverse weather conditions not reasonably anticipated, and other acts of God.
8.2.2 In addition to Design-Builder's right to a time extension for events set forth in Section 8.2.1
above, Design-Builder shall also be entitled to an appropriate adjustment of the Contract Price
provided, however, that the Contract Price shall not be adjusted for events set forth in Section
8.2.1 above that are beyond the control of both Design-Builder and City, including the events of
wars, floods, labor disputes, earthquakes, epidemics, adverse weather conditions not reasonably
anticipated, and other acts of God.
Article 9
Changes to the Contract Price and Time
9.1 Change Orders
9.1.1 A Change Order is a written instrument issued after execution of the Agreement signed by City
and Design-Builder, stating their agreement upon all of the following:
.1 The scope of a change in the Work;
.2 The amount of the adjustment, if any, to the Contract Price; and
.3 The extent of the adjustment, if any, to the Contract Time(s).
9.1.2 All changes in the Work authorized by applicable Change Order shall be performed under the
applicable conditions of the Contract Documents. City and Design-Builder shall negotiate in
good faith and as expeditiously as possible the appropriate adjustment for such changes.
9.1.3 If City requests a proposal for a change in the Work from Design-Builder and subsequently elects
not to proceed with the change, a Change Order shall be issued to reimburse Design-Builder for
reasonable costs incurred for estimating services, design services and services involved the
preparation of proposed revisions to the Contract Documents.
9.2 Work Change Directives
9.2.1 A Work Change Directive is a written order prepared and signed by the City, directing a change
in the Work prior to agreement on an adjustment in the Contract Price and/or the Contract
Time(s).
9.2.2 City and Design-Builder shall negotiate in good faith and as expeditiously as possible the
appropriate adjustments for the Work Change Directive. Upon reaching an agreement, the Parties
shall prepare and execute an appropriate Change Order reflecting the terms of the agreement.
9.3 Contract Price Adjustments
9.3.1 The increase or decrease in Contract Price resulting from a change in the Work shall be
determined by one or more of the following methods:
.1 Unit prices set forth in the Agreement or as subsequently agreed to between the Parties;
.2 A mutually accepted, lump sum, properly itemized and supported by sufficient
substantiating data to permit evaluation by City;
.3 Other costs and fees set forth in the Agreement; and
.4 If an increase or decrease cannot be agreed to as set forth in items .1 through .3 above and
City issues a Work Change Directive, the cost of the change of the Work shall be
determined by the reasonable expense and savings in the performance of the Work
resulting from the change. Design-Builder shall maintain a documented, itemized
accounting evidencing the expenses and savings associated with such changes.
9.3.2 If unit prices are set forth in the Contract Documents or are subsequently agreed to by the Parties,
but application of such unit prices will cause substantial inequity to City or Design-Builder
because of differences in the character or quantity of such unit items as originally contemplated,
such unit prices shall be equitably adjusted.
9.3.3 If City and Design-Builder disagree upon whether Design-Builder is entitled to be paid for any
services required by City, or if there are any other disagreements over the scope of Work or
proposed changes to the Work, City and Design-Builder shall resolve the disagreement pursuant
to Article 10 hereof. As part of the negotiation process, Design-Builder shall furnish City with a
good faith estimate of the costs to perform the disputed services in accordance with City's
interpretations. If the Parties are unable to agree and City expects Design-Builder to perform the
services in accordance with City's interpretations, Design-Builder shall proceed to perform the
disputed services, conditioned upon City issuing a written order to Design-Builder (i) directing
Design-Builder to proceed and (ii) specifying City's interpretation of the services that are to be
performed. If this occurs, Design-Builder shall be entitled to submit in its Applications for
Payment an amount equal to fifty percent (50%) of its reasonable estimated direct cost to perform
the services, and City shall pay such amounts, with the express understanding that (i) such
payment by City does not prejudice City's right to argue that it has no responsibility to pay for
such services and (ii) receipt of such payment by Design-Builder does not prejudice Design-
Builder's right to seek full payment of the disputed services if City's order is deemed to be a
change to the Work.
9.4 Emergencies
9.4.1 In any emergency affecting the safety of persons and/or property, Design-Builder shall act, in its
reasonable discretion, to prevent threatened damage, injury or loss to persons or property. Any
change in the Contract Price and/or Contract Time(s) on account of emergency work shall be
determined as provided in this Article 9.
Article 10
Contract Adjustments and Disputes
10.1 Requests for Contract Adjustments and Relief
10.1.1 If either Design-Builder or City believes that it is entitled to relief against the other for any event
arising out of or related to the Work or Project, such party shall provide written notice to the other
party of the basis for its claim for relief. Such notice shall, if possible, be made prior to incurring
any cost or expense and in accordance with any specific notice requirements contained in
applicable sections of these General Conditions of Contract. In the absence of any specific notice
requirement, written notice shall be given within a reasonable time, not to exceed ten (10) days,
after the occurrence giving rise to the claim for relief or after the claiming party reasonably
should have recognized the event or condition giving rise to the request, whichever is later. Such
notice shall include sufficient information to advise the other party of the circumstances giving
rise to the claim for relief, the specific contractual adjustment or relief requested and the basis of
such request.
10.2 Dispute Avoidance and Resolution
10.2.1 The Parties are fully committed to working with each other throughout the Project and agree to
communicate regularly with each other at all times so as to avoid or minimize disputes or
disagreements. If disputes or disagreements do arise, Design-Builder and City each commit to
resolving such disputes or disagreements in an amicable, professional and expeditious manner so
as to avoid unnecessary losses, delays and disruptions to the Work.
10.2.2 Design-Builder and City will first attempt to resolve disputes or disagreements at the field level
through discussions between Design-Builder's Representative and City's Representative.
10.2.3 If a dispute or disagreement cannot be resolved through Design-Builder's Representative and
City's Representative, Design-Builder's Senior Representative and City's Senior Representative,
upon the request of either party, shall meet as soon as conveniently possible, but in no case later
than thirty (30) days after such a request is made, to attempt to resolve such dispute or
disagreement. Prior to any meetings between the Senior Representatives, the Parties will
exchange relevant information that will assist the Parties in resolving their dispute or
disagreement.
10.2.4 If after meeting, the Senior Representatives determine that the dispute or disagreement cannot be
resolved on terms satisfactory to both parties, the Parties shall submit the dispute or disagreement
to non-binding mediation. The mediation shall be conducted by a mutually agreeable impartial
mediator, or if the Parties cannot so agree, a mediator designed by the American Arbitration
Association ("AAA") pursuant to its Construction Industry Mediation Rules. The mediation will
be governed by and conducted pursuant to a mediation agreement negotiated by the Parties or, if
the Parties cannot so agree, by procedures established by the mediator.
10.3 Arbitration
10.3.1 Any claims, disputes or controversies between the Parties arising out of or relating to the
Agreement, or the breach thereof, which have not been resolved in accordance with the
procedures set forth in Section 10.2 above shall be decided by arbitration in accordance with the
Construction Industry Arbitration Rules of the AAA then in effect, unless the Parties mutually
agree otherwise.
10.3.2 The award of the arbitrator(s) shall be final and binding upon the Parties without the right of
appeal to the courts. Judgment may be entered upon it in accordance with applicable law by any
court having jurisdiction thereof.
10.3.3 Design-Builder and City expressly agree that any arbitration pursuant to this Section 10.3 may be
joined or consolidated with any arbitration involving any other person or entity (i) necessary to
resolve the claim, dispute or controversy, or (ii) substantially involved in or affected by such
claim, dispute or controversy. Both Design-Builder and City will include appropriate provisions
in all contracts they execute with other parties in connection with the Project to require such
joinder or consolidation.
10.3.4 The prevailing party in any arbitration, or any other final, binding dispute proceeding upon which
the Parties may agree, shall be entitled to recover from the other party reasonable attorneys' fees
and expenses incurred by the prevailing party.
10.4 Duty to Continue Performance
10.4.1 Unless provided to the contrary in the Contract Documents, Design-Builder shall continue to
perform the Work and City shall continue to satisfy its payment obligations to Design-Builder,
pending the final resolution of any dispute or disagreement between Design-Builder and City.
Article 11
Stop Work and Termination for Cause
11.1 City's Right to Stop Work
11.1.1 City may, without cause and for its convenience, order Design-Builder in writing to stop and
suspend the Work.
11.1.2 Design-Builder is entitled to an adjustment of the Contract Price and/or Contract Time(s) if its
cost or time to perform the Work has been adversely impacted by any suspension or stoppage of
work by City.
11.2 City's Right to Perform and Terminate for Cause
11.2.1 If Design-Builder persistently fails to (i) provide a sufficient number of skilled workers, Oi)
supply the materials required by the Contract Documents, (iii) comply with applicable Legal
Requirements, (iv) timely pay, without cause, Design Consultants or Subcontractors, (v)
prosecute the Work with promptness and diligence to ensure that the Work is completed by the
Contract Time(s), as such times may be adjusted, or (vi) perform material obligations under the
Contract Documents, then City, in addition to any other rights and remedies provided in the
Contract Documents or by law, shall have the rights set forth in Sections 11.2.2 and 11.2.3 below.
11.2.2 Upon the occurrence of an event set forth in Section 11.2.1 above, City may provide written
notice to Design-Builder that it intends to terminate the Agreement unless the problem cited is
cured, or commenced to be cured, within seven (7) days of Design-Builder's receipt of such
notice. If Design-Builder fails to cure, or reasonably commence to cure, such problem, then City
may give a second written notice to Design-Builder of its intent to terminate within an additional
seven (7) day period. If Design-Builder, within such second seven (7) day period, fails to cure, or
reasonably commence to cure, such problem, then City may declare the Agreement terminated for
default by providing written notice to Design-Builder of such declaration.
11.2.3 Upon declaring the Agreement terminated pursuant to Section 11.2.2 above, City may enter upon
the premises and take possession, for the purpose of completing the Work, of all materials,
equipment, scaffolds, tools, appliances and other items thereon, which have been purchased or
provided for the performance of the Work, all of which Design-Builder hereby transfers, assigns
and sets over to City for such purpose, and to employ any person or persons to complete the
Work and provide all of the required labor, services, materials, equipment and other items. In the
event of such termination, Design-Builder shall not be entitled to receive any further payments
under the Contract Documents until the Work shall be finally completed in accordance with the
Contract Documents. At such time, if the unpaid balance of the Contract Price exceeds the cost
and expense incurred by City in completing the Work, such excess shall be paid by City to
Design-Builder. Notwithstanding the preceding sentence, if the Agreement establishes a
Guaranteed Maximum Price, Design-Builder will only be entitled to be paid for Work performed
prior to its default. Design-Builder is only entitled to be paid for Work performed prior to its
default regardless of whether the Agreement establishes a Guaranteed Maximum Price, whether a
Guaranteed Maximum Price is established after the Agreement, or whether the Work was
performed on a fixed fee basis. If City's cost and expense of completing the Work exceeds the
unpaid balance of the Contract Price, then Design-Builder shall be obligated to pay the difference
to City. Such costs and expenses shall include not only the costs of completing the Work, but
also losses, damages, costs and expense, including attorneys' fees and expenses, incurred by City
in connection with the reprocurement and defense of claims ansmg from Design-Builder's
default.
11.2.4 If City improperly terminates the Agreement for cause, the termination for cause will be
converted to a termination for convenience in accordance with the provisions of Section 11.3 of
these General Conditions of Contract.
11.3 City's Right to Terminate for Convenience
11.3.1 Upon ten (10) days written notice to Design-Builder, the City may, for its convenience and
without cause, elect to terminate the Agreement without liability to Design-Builder. In such
event, the City shall pay Design-Builder for the following:
.1 All labor and materials supplied to the Project up to the date of termination, unpaid but
earned portions of fees to Design-Builder, Subcontractors and Sub-Subcontractors.
11.3.2 If the City terminates the Agreement pursuant to Section 11.3.1 above and proceeds to design and
construct the Project through its employees, agents or third parties, the City's right to use the
Work Product shall be as set forth in Section 4.3 of the Agreement.
11.4 Design-Builder's Right to Terminate for Cause
11.4.1 Design-Builder, in addition to any other rights and remedies provided in the Contract Documents
or by law, may terminate the Agreement for cause for the following reasons:
.1 The Work has been stopped for sixty (60) consecutive days, or more than ninety (90)
days during the duration of the Project, because of court order, any government authority
having jurisdiction over the Work, or orders by City under Section 11.1.1 hereof,
provided that such stoppages are not due to the acts or omissions of Design-Builder or
anyone for whose acts Design-Builder may be responsible .
. 2 City's failure to provide Design-Builder with any information, permits or approvals that
are City's responsibility under the Contract Documents which result in the Work being
stopped for sixty (60) consecutive days, or more than ninety (90) days during the duration
of the Project, even though City has not ordered Design-Builder in writing to stop and
suspend the Work pursuant to Section 11.1.1 hereof.
11.4.2 Upon the occurrence of an event set forth in Section 1104.1 above, Design-Builder may provide
written notice to City that it intends to terminate the Agreement unless the problem cited is cured,
or commenced to be cured, within thirty (30) days of City's receipt of such notice. If City fails to
cure, or reasonably commence to cure, such problem, then Design-Builder may give a second
written notice to City of its intent to terminate within an additional thirty (30) day period. If City,
within such second thirty (30) day period, fails to cure, or reasonably commence to cure, such
problem, then Design-Builder may declare the Agreement terminated for default by providing
written notice to City of such declaration. In such case, Design-Builder shall be entitled to
recover in the same manner as if City had terminated the Agreement for its convenience under
Section 11.3 hereof.
11.5 Bankruptcy of City or Design-Builder
11.5.1 If either City or Design-Builder institutes or has instituted against it a case under the United
States Bankruptcy Code (such party being referred to as the "Bankrupt Party"), such event may
impair or frustrate the Bankrupt Party's ability to perform its obligations under the Contract
Documents. Accordingly, should such event occur:
.1 The Bankrupt Party, its trustee or other successor, shall furnish, upon request of the non-
Bankrupt Party, adequate assurance of the ability of the Bankrupt Party to perform all
future material obligations under the Contract Documents, which assurances shall be
provided within ten (10) days after receiving notice of the request; and
.2 The Bankrupt Party shall file an appropriate action within the bankruptcy court to seek
assumption or rejection of the Agreement within sixty (60) days of the institution of the
bankruptcy filing and shall diligently prosecute such action.
If the Bankrupt Party fails to comply with its foregoing obligations, the non-Bankrupt Party shall
be entitled to request the bankruptcy court to reject the Agreement, declare the Agreement
terminated and pursue any other recourse available to the non-Bankrupt Party under this Article
11.
11.5.2 The rights and remedies under Section l1.5.l above shall not be deemed to limit the ability of the
non-Bankrupt Party to seek any other rights and remedies provided by the Contract Documents or
by law, including its ability to seek relief from any automatic stays under the United States
Bankruptcy Code.
Article 12
Miscellaneous
12.1 Assignment
12.1.1 Neither Design-Builder nor City shall, without the written consent of the other, assign, transfer or
sublet any portion or part of the Work or the obligations required by the Contract Documents.
Any attempted assignment, transfer or sublet without such written consent shall be void and
confer no rights upon any third person and shall constitute a default under the Contract
Documents.
12.2 Successorship
12.2.1 Design-Builder and City acknowledge that the provisions of the Contract Documents are binding
upon the Parties, their employees, agents, heirs, successors and assigns.
12.3 Governing Law
12.3.1 The Agreement and all Contract Documents shall be governed by the laws of the state of
California.
12.4 Severability
12.4.1 If any provision or any part of a provision of the Contract Documents shall be finally determined
to be superseded, invalid, illegal, or otherwise unenforceable pursuant to any applicable Legal
Requirements, such determination shall not impair or otherwise affect the validity, legality, or
enforceability of the remaining provision or parts of the provision of the Contract Documents,
which shall remain in full force and effect as if the unenforceable provision or part were deleted.
12.5 No Waiver
12.5.1 The failure of either Design-Builder or City to insist, in anyone or more instances, on the
performance of any of the obligations required by the other under the Contract Documents shall
not be a construed as a waiver or relinquishment of such obligation or right with respect to future
performance.
12.6 Headings
12.6.1 The headings used in these General Conditions of Contract, or any other Contract Document, are
for ease of reference only and shall not in any way be construed to limit or alter the meaning of
any provisions.
12.7 Notice
12.7.1 Whenever the Contract Documents require that notice be provided to the other party, notice will
be deemed to have been validly given (i) if delivered in person to the individual intended to
receive such notice, (ii) four (4) days after being sent by registered or certified mail, postage
prepaid to the address indicated in the Agreement or (iii) if transmitted by facsimile, by the time
stated in a machine generated confirmation that notice was received at the facsimile number of
the intended recipient.
12.8 Amendments
12.8.1 The Contract Documents may not be changed, altered, or amended in any way except in writing
signed by a duly authorized representative of each party.
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EXHIBITE
INSURANCE REQUIREMENTS
CONTRACTORS TO THE CITY OF PALO ALTO (CITY), AT THEIR SOLE EXPENSE, SHALL FOR THE TERM OF THE CONTRACT
OBTAIN AND MAINTAIN INSURANCE IN THE AMOUNTS FOR THE COVERAGE SPECIFIED BELOW, AFFORDED BY
COMPANIES WITH AM BEST'S KEY RATING OF A-:VII, OR HIGHER, LICENSED OR AUTHORIZED TO TRANSACT INSURANCE
BUSINESS IN THE STATE OF CALIFORNIA.
AWARD IS CONTINGENT ON COMPLIANCE WITH CITY'S INSURANCE REQUIREMENTS AS SPECIFIED BELOW-, .
MINIMUM LIMITS
REQUIRED TYPE OF COVERAGE REQUIREMENT EACH
OCCURRENCE AGGREGATE
YES WORKER'S COMPENSATION STATUTORY
YES EMPLOYER'S LIABILITY STATUTORY
BODILY INJURY $1,000,000 $1,000,000
YES GENERAL LIABILITY, INCLUDING
PERSONAL INJURY, BROAD FORM PROPERTY DAMAGE $1.000,000 $1,000,000
PROPERTY DAMAGE BLANKET
CONTRACTUAL, AND FIRE LEGAL BODILY INJURY & PROPERTY DAMAGE $1,000,000 $1,000,000
LIABILITY COMBINED.
BODILY INJURY $1,000,000 $1,000,000 . EACH PERSON $1,000,000 $1,000,000 . EACH OCCURRENCE $1.000,000 $1.000,000
YES AUTOMOBILE LIABILITY, INCLUDING
ALL OWNED. HIRED. NON-OWNED PROPERTY DAMAGE $1.000,000 $1,000,000
BODIL Y INJURY AND PROPERTY $1,000,000 $1,000,000
DAMAGE, COMBINED
YES PROFESSIONAL LIABILITY,
INCLUDING. ERRORS AND
OMISSIONS, MALPRACTICE (WHEN
APPLICABLE), AND NEGLIGENT
PERFORMANCE ALL DAMAGES $1,000 000
YES THE CITY OF PALO ALTO IS TO BE NAMED AS AN ADDITIONAL INSURED: CONTRACTOR, AT ITS SOLE COST AND
EXPENSE, SHALL OBTAIN AND MAINTAIN, IN FULL FORCE AND EFFECT THROUGHOUT THE ENTIRE TERM OF ANY
RESULTANT AGREEMENT, THE INSURANCE COVERAGE HEREIN DESCRIBED, INSURING NOT ONLY CONTRACTOR AND
ITS SUBCONSUL TANTS, IF ANY, BUT ALSO, WITH THE EXCEPTION OF WORKERS' COMPENSATION, EMPLOYER'S
LIABILITY AND PROFESSIONAL INSURANCE, NAMING AS ADDITIONAL INSUREDS CITY, ITS COUNCIL MEMBERS,
OFFICERS, AGENTS, AND EMPLOYEES.
I. INSURANCE COVERAGE MUST INCLUDE:
A. A PROVISION FOR A WRITTEN THIRTY DAY ADVANCE NOTICE TO CITY OF CHANGE IN COVERAGE OR OF
COVERAGE CANCELLATION; AND
B. A CONTRACTUAL LIABILITY ENDORSEMENT PROVIDING INSURANCE COVERAGE FOR CONTRACTOR'S
AGREEMENT TO INDEMNIFY CITY.
C. DEDUCTIBLE AMOUNTS IN EXCESS OF $5,000 REQUIRE CITY'S PRIOR APPROVAL.
II. CONTACTOR MUST SUBMIT CERTIFICATES(S) OF INSURANCE EVIDENCING REQUIRED COVERAGE.
III. ENDORSEMENT PROVISIONS, WITH RESPECT TO THE INSURANCE AFFORDED TO "ADDITIONAL INSUREDS"
A. PRIMARY COVERAGE
WITH RESPECT TO CLAIMS ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED, INSURANCE AS
AFFORDED BY THIS POLICY IS PRIMARY AND IS NOT ADDITIONAL TO OR CONTRIBUTING WITH ANY
OTHER INSURANCE CARRIED BY OR FOR THE BENEFIT OF THE ADDITIONAL INSUREDS.
B. CROSS LIABILITY
Rev. 11/07
EXHIBIT E
INSURANCE REQUIREMENTS
THE NAMING OF MORE THAN ONE PERSON, FIRM, OR CORPORATION AS INSUREDS UNDER THE POLICY
SHALL NOT, FOR THAT REASON ALONE, EXTINGUISH ANY RIGHTS OF THE INSURED AGAINST ANOTHER,
BUT THIS ENDORSEMENT, AND THE NAMING OF MULTIPLE INSUREDS, SHALL NOT INCREASE THE TOTAL
LIABILITY OF THE COMPANY UNDER THIS POLICY.
C. NOTICE OF CANCELLATION
1. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR ANY REASON OTHER THAN THE
NON-PAYMENT OF PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A THIRTY
(30) DAY WRITTEN NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION.
2. IF THE POLICY IS CANCELED BEFORE ITS EXPIRATION DATE FOR THE NON-PAYMENT OF
PREMIUM, THE ISSUING COMPANY SHALL PROVIDE CITY AT LEAST A TEN (10) DAY WRITTEN
NOTICE BEFORE THE EFFECTIVE DATE OF CANCELLATION.
NOTICES SHALL BE MAILED TO:
Rev. 11/07
PURCHASING AND
CONTRACT ADMINISTRATION
CITY OF PALO ALTO
P.O. BOX 10250
PALO ALTO, CA 94303.
EXHIBIT F
PERFORMANCE SURETY BOND
Contractor's Performance Surety Bond
WHEREAS, the City Council of the City of Palo Alto, State of California ("City") and Anderson Pacific
Engineering Construction, Inc., ("Principal") have entered into an agreement dated , and identified
as "Design-Build of Water Production Wells For Emergency Water Supply at Eleanor Pardee Park and
Library/Community Gardens", which is hereby referred to and made a part here of whereby Principal
agrees to install and complete certain designated public improvements; and
WHEREAS, Principal is required under the terms of said agreement to furnish a surety bond for the
faithful performance of said agreement.
NOW, THEREFORE, Principal and , as Surety,
incorporated under the Laws of the State of , and duly authorized to
transact business as an admitted surety, under the Laws of the State of California, are held and firmly
bound unto City in the penal sum of Three Million Eight Hundred Seventy Thousand dollars
($3,870,000), for the payment whereof PrinCipal and Surety bind themselves, their heirs, executors,
administrators, successors, and assigns, jointly and severally, firmly by these presents.
The condition of this obligation is such that if the Principal, Principal's heirs, executors, administrators,
successors, or assigns shall promptly and faithfully keep and perform the covenants, conditions, and
provisions of the above-mentioned agreement and any alteration thereof, with or without notice to the
Surety, and if Principal shall satisfy all claims and demands incurred under such agreement and shall fully
protect, indemnify, defend, and hold harmless City, its officers, agents, and employees from all claims,
demands, or liabilities which may arise by reason of Principal's failure to do so, and shall reimburse and
repay City all outlay and expenses which City may incur in making good any default, then this obligation
shall be null and void; otherwise, it shall remain in full force and effect.
As part of the obligations secured hereto, and in addition to the face amount specified therefor, there shall
be included costs and reasonable expenses and fees, including reasonable attorney's fees incurred by
City in successfully enforcing such obligations, all to be taxed as costs and included in any judgment
rendered. Surety shall be liable for any liquidated damages for which the Principal may be liable under its
agreement with the City, and such liquidated damages shall be part of the obligations secured hereto,
and in addition to the face amount specified therefor.
The Surety hereby stipulates and agrees that no change, extension of time, alteration, or addition to the
terms of the agreement or to the work to be performed thereunder or the specifications accompanying the
same, shall in any way affect its obligations on this bid security, and it does hereby waive notice of any
such change, extension of time, alteration, or addition to the terms of the agreement or to the work or to
the specifications.
IN WITNESS WHEREOF, this instrument has been duly executed by the Surety above named on
______ , 2009.
SURETY, ______________ _ PHONE NUMBER: ________ _
BY: Its: ----------------------------------------------------
Contractor: ______________________________________________ _
CITY OF PALO ALTO RFP 131390 (Part II) PAGE 1 OF 2
EXHIBIT F
PERFORMANCE SURETY BOND
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
STATE OF _________ )
COUNTY OF ________ _
On __________ , before me, _________ , a notary public in and for said
County, personally appeared personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person{s) whose name{s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity{ies), and that by his/her/their signature{s) on the instrument the
person{s), or the entity upon behalf of which the person{s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature ___________________ (Seal)
CITY OF PALO ALTO RFP 131390 (Part II) PAGE 2 OF 2
EXHIBIT G
PAYMENT SURETY BOND
Contractor's Payment (Labor and Materials) SURETY BOND
WHEREAS, the City Council of the City of Palo Alto State of California ("City") and Anderson Pacific
Engineering Construction, Inc., ("Principal"), have entered into an agreement dated , and
identified as "Design-Build of Water Production Wells For Emergency Water Supply at Eleanor Pardee
Park and Library/Community Gardens", which is hereby referred to and made a part here of, whereby
Principal agrees to install and complete certain designated public improvements; and
WHEREAS, under the terms of said agreement, Principal is required before entering upon the
performance of the work to file a good and sufficient payment surety bond with the City of Palo Alto to
secure the claims to which reference is made in Title 15 (commencing with Section 3082) of Park 4 of
Division 3 of the Civil Code of the State of California.
NOW, THEREFORE, Principal and as Surety,
incorporated under the laws of the State , duly authorized to
transact business as an admitted surety, under the Laws of the State of California, are held and firmly
bound unto City in the penal sum of Three Million Eight Hundred Seventy Thousand dollars
($3,870,000), for the payment whereof Principal and Surety bind themselves, their heirs, executors,
administrators, successors, and assigns, jointly and severally, firmly by these presents.
The condition of this obligation is such that if Principal, Principal's subcontractors, heirs, executors,
administrators, successors, or assigns shall fail to pay any of the persons, companies, or corporations,
referred to in Section 3181 of the California Civil Code, as amended, with respect to any work of labor
performed or materials supplied by any such persons, companies, or corporations, which work, labor, or
materials are covered by the above-mentioned agreement and any amendments, changes, change order,
additions, alterations, or modifications thereof, or any amounts due under the California Unemployment
Insurance Code with respect to such work or labor, or for any amounts required to be deducted, withheld,
and paid over to the Employment Development Department from the wages of employees of the
contractor and his subcontractors pursuant to Section 13020 of the Unemployment Insurance Code, as
amended, with respect to such work and labor, the Surety will pay for the same, in an amount not
exceeding the sum herein above specified, and also, in case suit is brought upon this bid security, the
Surety will pay a reasonable attorney's fee to be fixed in court.
It is hereby expressly stipulated and agreed that this surety bond shall inure to the benefit of any and aU
persons, companies, and corporations entitled named in Section 3181 of the California Civil Code, as
amended, so as to give a right of action to them or their assigns in any suit brought upon this surety bond.
The Surety hereby stipulates and agrees that no amendment, change, order, addition. alteration, or
modification to the terms of the agreement of to the work to be performed thereunder or the speCifications
accompanying the same, shall in any way affect its obligations on this surety bond. and it does hereby
waive notice of any such amendment, change, change order. addition. alteration, or modification to the
terms of the agreement or to the work performed thereunder or to the specifications accompanying the
same.
IN WITNESS WHEREOF. this instrument has been duly executed by the Surety above named on
______ .2009.
SURETY. __________________________ __ PHON E NUMBER: ______________ _
Contractor: ________________________________ _
CITY OF PALO ALTO -RFP 131390 (Part II) PAGE 1 OF 2
EXHIBIT G
PAYMENT SURETY BOND
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
STATEOF ________________ __
COUNTYOF ________________ _
On __________ , before me, __________ , a notary public in and for said
County, personally appeared personally
known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s)
is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature ___________________ (Seal)
CITY OF PALO ALTO -RFP 131390 (Part II) PAGE 20F2
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