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Staff Report 193-10
TO: HONORABLE CITY COUNCIL FROM: CITY MANAGER DEPARTMENT: COMMUNITY SERVICES DATE: APRIL 19, 2010 CMR: 193:10 REPORT TYPE: CONSENT SUBJECT: Approval of a Sole Source and Design/Build Agreement with Devcon Construction, Inc. in the Amount of $113,100 for Construction of Improvements to Bobcat Facilities and Other Areas at the Palo Alto Junior Museum and Zoo RECOMMENDATION Staff recommends that the City Council approve the attached sole source design/build agreement (Attachment A) in the amount of $113,100 with Devcon Construction, Inc. (Devcon) for the completion of improvements related to the new Bobcat Ridge facilities at the Palo Alto Junior Museum and Zoo. BACKGROUND The Friends of the Palo Alto Junior Museum and Zoo (Friends) have played an integral role in the support and operation of the Palo Alto Junior Museum and Zoo (JMZ) since their inception in 1962. (Note that from 1962 through 1990 the group was called the Junior Museum and Zoo Associates.) In 2002, the Friends approached the City of Palo Alto to create a public -private partnership with the intent to raise the capital funds required to renovate the JMZ facility. The Friends have continued to be an active advocate and support organization for the JMZ's mission. In January 2008, the Friends entered into a contract for the design of new bobcat exhibit with Studio Hanson Roberts, an international zoo design firm. Simultaneously, the Friends issued a Request for Proposals for construction services in December 2008, and completed the selection process for a construction contractor for the exhibit. By prequalifying a contractor who agreed to assist with cost estimating, the Friends ensured accurate cost estimates for the project during design. The exhibit is approximately 1,000 square feet (SF), of which 800 SF are a landscaped habitat with a waterfall and pool for the bobcats covered with a protective stainless steel net. There is a view area with tempered laminated glass for nose -to -nose viewing and behind -the - scenes management enclosures to facilitate veterinary care, animal introductions, and off -exhibit rest areas for the bobcats. The design team included JMZ staff and the Friends' board members. The design process began with defining the goals, which included creating an enriching, living landscape for the bobcats CMR: 193:10 Page 1 of 4 - and the context ofnaturefor the children who come to see them, creating a facility that would enable modern animal management practices, and staying within the allocated Program Budget of $450,000 of the Friends' capital campaign. The Program Budget includes construction costs and soft costs (such as design and engineering). The Bobcat Ridge Exhibit will be constructed by the Friends using contributed funds. The design is complete and $450,000 of funding was in - place by June 30, 2009. The Friends selected Devcon to complete the project and construction on Bobcat Ridge is well underway with an anticipated June completion date. The Council approved an agreement with the Friends of the Palo Alto Junior Museum and Zoo on December 7, 2009, (CMR 431-09) which provides for the necessary access and arrangements to allow for the construction of the new Bobcat Ridge exhibit. This approval followed the Council's adoption of a Park Improvement Ordinance on November 16, 2009. As part of the adoption of the Park Improvement Ordinance, the Council also approved the plans for a series of City -funded improvements to the JMZ, some of which are complementary and integral to the Bobcat Ridge construction. These improvements include the demolition of asphalt and brick walkways within the Zoo, replacement of portions of these walkways with nature- themed concrete and rubber playground safety surfacing and demolition of the existing wooden perimeter fence and replacement with a new fence compliant with U.S. Department of Agriculture (USDA) requirements. The repaving of the zoo requires that all of the existing asphalt pathways be demolished and re -graded to a new elevation to comply with accessibility requirements. Bobcat Ridge is being constructed at the new elevation so public access for the exhibit would not be until paving is completed. Along with the adoption for the Park Improvement Ordinance in November the Council approved two projects, one for the Bobcat Ridge which is funded and constructed with private dollars by the Friends and a second project funded by the City for fencing and paving. The Friends do not wish to co -mingle public and private funds for this project but rather to manage construction of the Bobcat Ridge exhibit themselves (under an agreement with the City) to honor the intention if their donor's gifts and to manage project costs and schedule. Staff recognized a cost savings by managing only the City funded portion of the work, the fencing and paving. DISCUSSION Following the commencement of construction on the Bobcat Ridge project, staff began preparing the necessary construction documents for the paving and fencing projects. The funding for this work will come from Capital Improvement Project AC -10000 and there is a total budget of $125,000 for this portion of the work. The paving project would remove the existing asphalt and brick walkways within the Zoo, regrade and smooth the walkways, and then replace the walkways either in -kind with concrete or with a resilient rubber surfacing made of recycled rubber that is bound with urethane. The pervious surfacing installation will allow water to percolate through the surface and into the landscape. The layout of the pathways will remain much as they are now. The fencing project will replace approximately 410 linear feet of existing exterior fencing that does not currently meet USDA requirements. The USDA requires that all permitted exotic animal facilities, including the JMZ, meet federal requirements for keeping humans out, keeping animals in, and there must be constructed a secondary fence set back from the animal enclosures. CMR: 193:10 Page 2 of 4 __The proposed construction material for the exterior fencing would be vertical wood slats similar to the existing Zoo fence and other fences within Rinconada Park. The portion of the fence installed on the property line at Walter Hays Elementary School will be an 8 -foot chain link with colored slats to match existing fencing at the school. The layout of the perimeter fence will largely align with the existing layout except along the parking lot. The new layout would include the Zoo's service and waste area. In order to accomplish this, the pathway from the Museum entry to the playground would be realigned; the new location would be situated alongside the parking lot to facilitate safer egress from the parking lot. A staff -level Architectural Review approval has been secured for this portion of the project. Attachment B shows the site plan for these improvements. The projected duration of this construction activity is two to four weeks, during which time the Zoo would be closed to the public. The project must also be coordinated with the construction occurring on the Bobcat Ridge exhibit so that both projects can be completed simultaneously. The paving work also needs to dovetail with the Bobcat Ridge construction in order to ensure that drainage and grading issues are addressed appropriately. It is primarily for these two reasons that staff chose to pursue a sole source design build agreement with Devcon upon initiation of the construction drawings for this component of the project instead of pursuing a competitive bid for the project. A City -designed and competitive bid process would have taken several additional months to complete, resulting in significant delays to the project. Section 2.30.360 (b)(2) of the Palo Alto Municipal Code allows the City to pursue a sole source purchase of services if " . . . the time necessary to use the competitive solicitation process procedures and requirements would result in a substantial economic loss to the city, or the substantial interference with a required city operation." Devcon is already onsite and familiar with the site issues and constraints. Staff believes that significant time and cost savings would occur as a result. With this proposed design -build modification, there would be no need to spend time and resources on the mobilization of a new contractor. This would result in a lower overall cost for the project. The project is appropriate for a design -build contract, because the project objectives are largely driven by building code compliance, ADA compliance, and known standards for fencing rather than an architectural program. Issuing a design -build contract would compress the project's construction time significantly, thereby saving costs and avoiding delays. Devcon has agreed to complete the project for the budget of $113,100, will some value engineering and scope reduction, and within the City's required time schedule. Completion of this work prior to the grand opening of the Bobcat Ridge exhibit is critical, as the paving work would require closure of the Zoo for a period of up to four weeks. It is important that this closure should occur prior to the reopening of Bobcat Ridge and the start of summer camps. The inability to conduct three of the JMZ's summer camps due to a closure of the Zoo would result in lost revenue for the City of $8,000 to $10,000 per week or $77,000 for the entire summer. RESOURCE IMPACT Funds for this project are included in Capital Improvement Program Project — AC -10000 (Junior Museum and Zoo (JMZ) New Bobcat Habitat). Funds are derived from three sources. The Friends have committed to fund the construction and have secured $450,000 to cover the design and construction of Bobcat Ridge enclosure and habitat. $55,000 has been reserved in a CSD CMR: 193:10 Page 3 of 4 donation account for the perimeter fencing contract. Funding of $70,000 had been previously budgeted in the Infrastructure Reserve for the resurfacing of the Zoo pathways. Of the $70,000 allocated for resurfacing, $12,800 was expended on civil engineering for this project. The funds remaining for the project are $113,100. POLICY IMPLICATIONS The proposed projects are consistent with existing City policy, including C-17: Continue to support provisions, funding, and promotion of programs for children and youth; and C-26: Maintain and enhance existing park facilities. ENVIRONMENTAL REVIEW The Planning Department has reviewed the project and has determined that it is categorically exempt under Section 15301 [existing facilities] of CEQA. ATTACHMENTS Attachment A: Attachment B: Design -Build Agreement with Devcon Construction, Inc. Junior Museum and Zoo Approved Paving and Fencing Site Plan PREPARED BY: DIVISION MANAGER: DEPARTMENT HEAD: CITY MANAGER APPROVAL: HN AIKIN /Supervisor . for Museum & Zoo KELLY MORARIU Ass' art to the City Manager GH`EG BETTS Director of Community Services JAMES KEENE City Manager CMR: 193:10 Page 4 of 4 CITY OF PALO ALTO CONTRACT NO. C10136116 AGREEMENT BETWEEN THE CITY OF PALO ALTO AND DEVCON CONSTRUCTION, INC. FOR THE DESIGN -BUILD OF THE PALO ALTO JUNIOR MUSUEM AND ZOO FENCING AND PAVING PROJECT This Agreement is made as of April 20, 2010, ("the "Effective Date"), by and between the following parties, for services in connection with the Project identified below. CITY: CITY OF PALO ALTO, a California chartered municipal corporation (the "City") 250 Hamilton Avenue Palo Alto, CA 943010 Telephone: (650) 329 - Fax: (650) DESIGN -BUILDER: DEVCON CONSTUCTION, Inc., a California corporation ("Design -Builder") 690 Gibraltar Dr. Milpitas, CA 95035 Telephone: (408) 942-8200 Fax: (408) 262-2342 (Individually, a "Party" and, collectively, the "Parties") PROJECT: THE PALO ALTO JUNIOR MUSUEM & ZOO FENCING AND PAVING PROJECT (the "Project") In consideration of the mutual covenants and obligations contained herein, the Parties agree, as set forth herein. 100315 j 0073333 1 Article 1 Scope of Work 1.1 Design -Builder shall perform 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 B 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 Devcon Construction, Inc. for the Design -Build of the Palo Alto Junior Museum & Zoo Fencing and Paving Project, including the exhibits, which exhibits are specifically made a part of this Agreement by this reference. 1.2.2 Application for Payment shall mean and 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 shall mean and constitutes a represent 'tion by Design - Builder that Design -Builder has completed all of the Work in conformance 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 the City's and Design -Builder's responsibilities for the Project's security, maintenance, utilities and insurance pending final payment, and (iv) an acknowledgment that warranties continence 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 shall mean 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 100315 j 0073333 2 and other Project -specific technical materials and requirements. City's Project Criteria are described in Exhibit B, including the drawings that were developed by the staff of the Palo Alto Junior Museum & Zoo. 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 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. 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 Devcon Construction, Inc. a 1.2.15 Design Builders Representative shall mean the person designated to be Design -Builder'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 of this Agreement. 1.2.17 Design Consultant shall mean 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 shall mean 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 of Contract shall mean Exhibit A of this Agreement. 1.2.21 GMP or Guaranteed Maximum Price shall mean the price as defined in Section 6.5 of this Agreement. 100315 j 0073333 3 1.2.22 Hazardous Conditions shall mean 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 shall mean 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 of Completion shall mean and refer to a Notice of Completion pursuant to California Civil Code §3093. 1.2.25 Parties shall mean the City of Palo Alto and Devcon Construction, Inc. 1.2.26 Preliminary Designs shall mean the drawings prepared by the Palo Alto Junior Museum & Zoo. 1.2.27 Project shall mean the improvements for which Design -Builder is to provide services under this Agreement, including new fencing and paving at the Palo Alto Junior Museum & Zoo, 1451 Middlefield Road, Palo Alto. 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 C, 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 shall mean the land or premises on which the Project is located. 1.2.30 Subcontractor shall mean 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 shall mean any person or entity retained by a Subcontractor to perform any portion of a Subcontractor's Work and shall include materialmen and suppliers. 1.2.32 Substantial Completion shall mean 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 shall mean and be 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 shall mean and be comprised of all writings, reports, drawings, plans, specifications, calculations, electronic data, and other documents, and copyright interests developed under this Agreement. 100315jb 0073333 4 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 A to this Agreement; 1.14 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 Exhibit B; and 1.3.6 Perimeter Fence standards and requirements, as listed in Exhibit D. 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 the 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 Exhibit E for 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 the City in expanding upon the Preliminary Designs. Design -Builder shall review and prepare a written evaluation of City's Project Criteria, including recommendations to the 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 Preliminary Designs and agree upon the revisions, if any, that should be made to the Preliminary Designs. No revisions shall be made to the Preliminary Designs without the City's express written approval. Any revisions to the Preliminary Designs 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 the final Preliminary Designs, as may be revised in accordance with Section 2.2.1 hereof The Construction Documents shall include design criteria, drawings, diagrams, specifications and all 1003/5jb 0073333 5 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.. the . City's express written. approval. Design-Buildershall make such agreed -upon revisions. To the extent that changes to the Construction Documents impose increased costs upon Design -Builder, Design -Builder shall be entitled to a change order pursuant to Article 9 of the General Conditions. 2.4 Proposal. Based on the City's PER, the Construction Documents, as each may be revised pursuant to Sections 22.1 and 2.3 above, and any other documents upon which the Parties may agree, Design -Builder shall submit a proposal to the City (the "Proposal"), which shall include the following, unless the Parties mutually agree otherwise: 2.4.1 A proposed Contract Price for the design and construction of the Project, which price shall be in the forrn of a fixed fee or shall be Design -Builder's Fee plus the Cost of the Work subject to the GMP; and 2.4.2 A schedule and date of Substantial Completion of the Project upon which the Contract Price for the Project is based. 2.5 Review of Proposal. The Parties shall meet to discuss and review the Proposal. If the 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 the City's notice, adjust the Proposal. If the Parties 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 Contract Documents. The Contract Documents will provide for 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 Terms. Terms, 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 Integration. The documents constituting the Contract Documents as set forth in Section 1.3 hereof, represent the entire and integrated agreement between the Parties and they supersede all prior negotiations, representations or agreements, whether written or oral, between the Parties related to the Project or the Work. 100315 j 0073333 6 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 the City, and Design -Builder waives and relinquishes all claims to copyright or other intellectual property rights in favor of the City. Neither Design -Builder, nor 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 (the "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 determined 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 achieved as follows: Substantial Completion of the Project shall be achieved by June 11, 20105.2.3 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. The Parties 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, the City will suffer damages which are difficult to determine and accurately specify. If Substantial Completion is not attained by June 25, 2010 (14) days after the Scheduled Substantial Completion Date (the "LD Date"), Design - Builder shall pay the City five hundred dollars ($500.00) 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 the City which are occasioned by any delay in achieving Substantial Completion. 100315 j 0073333 7 Article 6 Contract Price 6.1 Contract Pi -ice 6.1.1 For the specific portions of the Work set forth below, the City shall pay Design -Builder, as part of the Contract Price, on the following basis: The Cost of Work (budgeted at $109,270.00 including a 10% contingency on direct construction costs) plus the Design -Builders Fee to a total Guaranteed Maximum Price (GM?) of $113,100.00. 6.1.2 The 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: The Design -Builder fee is 3.5% of the sum of the cost of construction. 6.2.1 Design -Builder's Fee shall be: Three thousand, eight hundred and twenty-four dollars ($3,824.00). 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. The Cost of the Work shall 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 three and one half percent (3.5%) markup to compensate Design -Builder for the Project -related only overhead associated with such personnel. Todd Vierra — Project Manager Kip Dunning — Project Superintendent 100315 jb 0073333 8 .4 Costs incurred by Design -Builder for employee benefits, premiums, taxes, insurance, contributions and assessments required by law, collective bargaining agreements, or which are -en stom aril y paid by Design_B�ilder, to the extent .enrh costs are based on wages and salaries paid to covered under Sections 6.3.1 through 6.3.3 hereof. employees of Design -Builder .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 performance of the Work. .6 Payments properly made by Design -Builder to Subcontractors and Design Consultants for performance 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 nonconforming Work, provided that such defective, damaged or nonconforming 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 nonconforming 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 performance 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. 100315 j 0073333 9 .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 the 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 neiligence. .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 of Design -Builder's capital used in the performance of the 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 6.5.1 Establishment of the GMP 100315 j 0073333 10 6.5.1.1 Design -Builder guarantees that it shall not exceed the GMP of One Hundred Thirteen Thousand, One Hundred Dollars ($113,100.00). Design -Builder will be responsible for paying all costs incurred in completirtg_the Work�nd which exre Ad �' � „�t-d in accordance with the Contract Documents. Documents used as a basis for the GMP shall be identified in an exhibit to this Agreement ("GMP Exhibit"). 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: Zero percent (0%) to Design -Builder One hundred percent (100%) 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 First (1st) 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 of the 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 Retention 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. The City will not retain any portion of the progress payments reflecting design costs. I00315jb 0073333 11 7.2.2 In accordance with law, or otherwise, the 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 he neresary to protect the 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 the 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, then the 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 the 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, the 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 remaining 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 the 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 100315 j 0073333 12 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 effective date of the Notice of Completion, Design -Builder shall preserve and the City and its 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 The 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 of the General Conditions of Contract: 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: 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: 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: Article 9 Notices 9.1 Notices. All notices, demands or other communications required or permitted 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 confirmation that notice was received at the facsimile number of the intended recipient at the appropriate fax number set forth below. 100315 j b 0073333 13 If to City: Attn: City of Palo Alto 250 Hamilton Avenue Palo Alto, CA 94301 Telephone: (650) Fax: (650) If to Design -Builder: Attn• Tndd Vjerra Devcon Construction, Inc. 690 Gibraltar Drive Milpitas, CA 95035 Telephone: (408) 942-8200 Fax: (408) 262-2342 IN WITNESS WHEREOF, as of the Effective Date, the Parties 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 perform the services described herein. CITY OF PALO ALTO APPROVED AS TO FORM: Senior Asst. City Attorney APPROVED: City Manager Director of Administrative Services Director of Community Services Exhibit A: Exhibit B: Exhibit C: Exhibit D: • Exhibit E: Exhibit F: Exhibit G: General Conditions of the Contract Preliminary Designs Project Schedule Perimeter Fence Standards and Requirements Insurance Requirements Performance Bond Payment Bond DEVCO CONSTRUCTION, INC. Gary Fi1ike President,\\Devcon Construction, Inc. 3 -g 100315 jb 0073333 14 EXHIBIT A GENERAL CONDITIONS OF CONTRACT Article 1 General 1 !.1 Mutual Obligations 1 . 1.1.1 The 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 ;.1 • General Services .1.1 Design -Builder's Representative shall be reasonably available to the City and shall have the necessary expertise and experience required to supervise the Work. Design -Builder's Representative shall communicate regularly with the 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. :.1.2 Design --Builder shall provide the 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). .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 the City's 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. The 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. !0315 jb 0073333 15 2.1.4 The Parties will meet within five (5) days after execution of the Agreement to discuss issues affecting the administration of the Work and to implement the necessary 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 City of Palo Alto "Standard drawings and Specifications, Department of Public Works" dated 2007 the design professional services shall be performed to achieve such standards. 2.4 Design Development Services 2.4.1 Design -Builder and the City shall, consistent with any applicable provision of the Contract Documents, agree upon any interim design submissions that the 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 the 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, the 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 the 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. 100315 jb 0073333 16 The Parties shall conduct a design review meeting to discuss, and the 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 the City prior to commencement of construction. 2 :.4.3 The 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 t ansfer any design liability from Design -Builder to City. L4.4 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. Legal Requirements 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. :.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 on which the Parties agree upon the Guaranteed Maximum Price. Such changes may include, without limitation, revisions that Design -Builder is required to make to the Construction Documents due to changes in Legal Requirements. '.6 Permits and Approvals .6.1 Design -Builder shall provide, procure and pay for all permits, approvals, licenses and fees required for the 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. .7 Design -Builder's Construction Phase Services .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. .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. ?0315 jb 0073333 17 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. 2.7A Design -Builder assumes responsibility to the 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 the 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 the 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 the 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 100315 jb 0073333 18 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 the 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 the City that the construction, including all materials and equipment furnished as part of the construction, shall be: (a) of good quality and new unless otherwise specified in the Contract Documents; (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 to the requirements of the preceding sentence, Design -Builder shall correct such non - conformances 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 the City with greater warranty rights than set forth in this Section 2.9 or the Contract Documents. Design -Builder will provide the City with all manufacturers' warranties upon Substantial Completion. 2.10 Correction of Defective Work 2.1 0.1 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. 100315 jb 0073333 19 2.10.2 Design -Builder shall, within seven (7) days of receipt of written notice from the City that the Work is not in conformance with the Contract Documents, commence correction of 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, the City, in addition to any other remedies provided under the Contract Documents, may provide. Design -Builder with written notice that the City will commence correction of such nonconforming Work with its own forces. If the City does perform such corrective Work, Design -Builder shall be responsible for all reasonable costs incurred by the 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 (I) 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 the 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 The 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 The 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 the 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, the City shall provide to Design -Builder the following: 100315 jb 0073333 20 .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 of the 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. 13.2 The 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. The City is further responsible for all costs, including attorneys' fees, incurred in securing these necessary agreements. 14 Permits and Approvals 14.1 The 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. ;5 City's Separate Contractors X5.1 The City is responsible for all Work performed on the Project or at the Site by separate contractors under the City's control. The 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 .1 Hazardous Conditions 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 the City, in writing, and, if required by 0315jb 0073333 21 Legal Requirements, all government or quasi -government entities with jurisdiction over the Project or the Site. 4.1.2 Upon receiving notice of the presence of suspected Hazardous Conditions, the City shall take the necessary measures required to ensure that the Hazardous Conditions are remediated or rendered harmless. Such necessary measures shall include the 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 the 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 the 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 I Izardous 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, the 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, the 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 the City and the 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 100315 j 0073333 22 "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 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 the 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: Professional Liability Insurance 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 the 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. 100315 jb 0073333 23 ,3.1.5 Prior to commencing any construction services under the Contract Documents, Design - Builder shall provide the City with certificates evidencing that (i) all' insurance obligations required by the Contract Documents are in fall 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 the City. A 5.2 City's Property Insurance 5.2.1 Unless otherwise provided in the Contract Documents, the 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 the City shall include as additional insureds the interests of the 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 the City. 5.2.2 Unless the Contract Documents provide otherwise, the City shall procure and maintain boiler and machinery insurance that will include the interests of the City, Design -Builder, Design Consultants, Subcontractors and Sub -Subcontractors. i.2.3 Any loss covered under the City's property insurance shall be adjusted with the City and Design -Builder and made payable to both of them as trustees for the insuredas 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. ..2.4 The City and Design -Builder waive against each other and the 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 the City shall, where appropriate, require similar waivers of subrogation from the City's separate contractors, Design Consultants and Subcontractors and each of them shall include similar waivers in their contracts. .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: .3.1 General Requirement. 00315jb 0073333 24 .1 Before allowing a contractor to enter upon the Site and perform Project construction work, Design -Builder shall file with the City four (4) duplicates of each performance bond and payment bobond,in-the forma ached 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 the bonds or any of them become insufficient, Design -Builder's contractors shall obtain replacement bonds with good and sufficient sureties within ten (10) days after receiving notice from the 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 the City in substantially the fonu 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 the City an executed performance bond in favor of the 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 the 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 the City an executed payment bond in favor of the 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. — - 5.3.44 Warranty Bond. Design -Builder shall deliver to the City, substantially in the form of the City's standard defective materials and workmanship bond attached to the Agreement as Exhibit H, 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 the 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 100315 jb 0073333 25 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) the 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, the 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 the 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, the City shall pay Design -Builder all amounts properly due. If the 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 the 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 the City will attempt to resolve the City's concerns prior to the date on which 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, the 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 100315 jb 0073333 26 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 the City on account of their work. Design -Builder -v411 -impose similar requirements on Design Consultants, Subcontractors and Sub -Subcontractors to pay parties with whom they have contracted. 63 Substantial Completion 6.5.1 Design -Builder shall notify the 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 the City's receipt of Design -Builder's notice, the 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, the 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 the 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, the 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. 63.3 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 the City's use or occupancy will not interfere with Design -Builder's completion of the remaining Work. 6:6 Final Payment 6.6.1 After receipt of an Application for Final Payment from Design -Builder, the 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 100315 jb 0073333 27 performed, furnished or incurred for or in connection with the Work which will in any way affect the 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, the 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. m Article 7 Indemnification 7.1 Patent and Copyright Infringement 7.1.1 Design -Builder shall defend any action or proceeding brought against the 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. The 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 the 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 the 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 that 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 100315 jb 0073333 28 particular process or product of a particular manufacturer specified by the City and not offered or recommended by Design -Builder to the 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, the City shall defend, indemnify and hold harmless Design -Builder to the same extent Design -Builder is obligated to defend, indemnify and hold harmless the 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 '.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 the 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 In4emnified Party. '.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 the 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. .3 Design -Builder's General Indemnification .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 the 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 10315 jb 0073333 29 from the active negligence, sole negligence or willful misconduct of an Indemnified Party. .2 The acceptance of Design -Builder's services and duties by the 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 7.4.1 8.1 Obligation to Achieve the Contract Times 8.1.1 Design -Builder will commence performance of the Work and a Z.ieve the Contract Time(s) in accordance with Article 5 of the Agreement. City's General Indemnification The City, to the fullest extent permitted by law, shall indemnify, hold harmless and defend Design -Builder and any ofDesign-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 8.2 8.2.1 8.2.: Delays to the Work 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 the City or anyone under the 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. 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. 1003 jb 0073333 30 Article 9 9.1 uange Orders 9:1.1 A 4 byOhange Order is a written instrument issued after execution of the Agreement signed the City and Design -Builder, stating their agreement upon all of the following: .1 The scope of a change in the Work; The amount of the adjustment, if any, to the Contract Price; and The extent of the adjustment, if any, to the Contract Time(s). 9.1.2 Al un; changes in the Work authorized by applicable Change Order shall be performed shier the applicable conditions of the Contract Documents. The City and Design -Builder foill negotiate in good faith and as expeditiously as possible the appropriate adjustment t such changes. 9.1.3 If • suhe City requests a proposal for a change in the Work from Design -Builder and reitisequently elects not to proceed with the change, a Change Order shall be issued to seinburse Design -Builder for reasonable costs incurred for estimating services, design D 'ices and services involved the preparation of proposed revisions to the contract zuments. 9.2 \% Vic Change Directives 9.2.1 A c1Nork Change Directive is a written order prepared and signed by the City, directing a onge in the Work prior to agreement on an adjustment in the Contract Price and/or the ntract Time(s). 9.2.2 TI p(b City and Design -Builder shall negotiate in good faith and as expeditiously as agsible the appropriate adjustments for the Work Change Directive. Upon reaching an dement, the Parties shall prepare and execute an appropriate Change Order reflecting terms of the agreement. 9.3 C atract Price Adjustments 9.3.1 T dib increase or decrease in Contract Price resulting from a change in the Work shall be ermined by one or more of the following methods: Changes to the Contract Price and Time .2 .3 .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 the City; 100315jb C )3333 Other costs and fees set forth in the Agreement; and 3l .4 If an increase or decrease cannot be agreed to as set forth in items .1 through .3 above and the City issues a Work Change Directive, the cost of the change of the Work shall he determiner) by the reasonable expe:nce and Gavingg 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 the 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, 93.3 If the City and Design -Builder disagree upon whether Design -Builder is entitled to be paid for any services required by the City, or if there are any other disagreements over the scope of Work or proposed changes to the Work, the City and Design -Builder shall resolve the disagreement pursuant to Article 10 hereof. As part of the negotiation process, Design -Builder shall furnish the City with a good faith estimate of the costs to perform the disputed services in accordance with the City's interpretations. If the Parties are unable to agree and the City expects Design -Builder to perform the services in accordance with the City's interpretations, Design -Builder shall proceed to perform the disputed services, conditioned upon the City issuing a written order to Design -Builder (i) directing Design -Builder to proceed and (ii) specifying the City's interpretation of them 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 the City shall pay such amounts, with the express understanding that (i) such payment by the City does not prejudice the 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 the 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 the 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 100315 jb 0073333 32 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 the 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 the 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. 100315 jb 0073333 33 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 the 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 the.City shall continue to satisfy its payment obligations to Design -Builder, pending the final resolution of any dispute or disagreement between Design -Builder and the City. Article 11 Stop Work and Termination for Cause 11.1 City's Right to Stop Work 11.1.1 The 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 the 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, (ii) 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, the City may provide written notice to Design -Builder that it intends to terminate the Agreement unless the 100315 jb 0073333 34 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 the 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 the 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, the 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 the 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 the City in completing the Work, such excess shall be paid by the 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 the 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 the 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 the City in connection with the reprocurement and defense of claims arising from Design - Builder's default. 11.2.4 If the 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. 100315 jb 0073333 35 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 the 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 The City's failure to provide Design -Builder with any information, permits or approvals that are the 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 the 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 11.4.1 above, Design -Builder may provide written notice to the City that it intends to terminate the Agreement unless the problem cited is cured, or commenced to be cured, within thirty (30) days of the City's receipt of such notice. If the City fails to cure, or reasonably commence to cure, such problem, then Design -Builder may give a second written notice to the City of its intent to terminate within an additional thirty (30) day period. If the 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 the City of such declaration. In such case, Design -Builder shall be entitled to recover in the same manner as if the 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 the 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 100315 jb 0073333 36 .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. 113.2 The rights and remedies under Section 11.5.1 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 the 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 the 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 fmally 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 the City to insist, in any one or more instances, on the performance of any of the obligations required by the other under the Contract 100315 jb 0073333 37 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. 100315 j 0073333 38 EXHIBIT B PRELIMINARY DESIGNS See attached 11 x 17 prints of the following two pages. Demolition Plan 100315 jb 60`13333 39 Paving and Fencing Plan 100315 jb 0073333 40 New Decomposed Granite RQPOSED BOBCAT EXHIBIT New Safety Surface New Perimeter Fence REMOVE FENCE, FAISEOBEDS. AND BENCHES CLEAR AND GRUB VEGETATION SOIL TO RFINCLUDET IN NEwGRA OE REMOVE PAVERS SAVE FOR CLIENTS REMOVE AND REINSTALL EXISTING GATES LTl AFTER SURFACE AO1uSTTO NEW GRADES REMGVESEyTONS OF EXISTING FENCES (HIGHLIGHTED ORANGE) VEGETATION TO REMAIN CLEARANOGRUB VEGETATION IN FRONT OF GLASS MU. EXISTING FENCES TO REMAIN (HIGHLIGHTED ROE) 4ROTECT TREES RQPOSED BOBCAT EXHIBIT UCT1ON STAGIN ._ • CONSTRUCTION SHED • (MAP FOR NE EXHIBIT C PROJECT SCHEDULE Total Project Duration - 35 Days Design — 5 Days DPW Review and Approval - 5 Days Construction -- 20 Days Inspection and Sign -off - 5 Days April 20 —June 11, 20W April 20 — April 27, 2010 April 28 — May 5, 2010 May 10 — June 4, 2010 June 7 — 11, 2010 100315 j 0073333 41 EXHIBIT D PERIMETER FENCE STANDARDS AND REQUIREMENTS I resign -Builder is required to meet or exceed the following standards and/or regulatory tiequirements in regard to the Project. When there is a difference between the AZA standard and he USDA requirement, the higher standard shall prevail. 2 kSSOCIATION OF ZOOS AND AQUARIUMS ACCREDITATION STANDARDS 1 from the `2010 AZA ACCREDITAITON STANDARDS' 11.8. Perimeter Fence 11.8.1. Perimeter fencing must be separate from all exhibit fencing or other enclosures, and be of good quality and construction. All facilities must be enclosed by a perimeter fence which is at least 8' in height or by a viable barrier. The fence must be constructed in a manner that leaves no gaps anywhere, including gates that would allow entry to the grounds by feral/wild animals or permit the egress of a collection animal in the event of an escape from a primary enclosure. Explanation: There are rare instances where the terrain surrounding the facility provides a viable barrier. However, most facilities must be enclosed by a perimeter fence. Facilities located in rural areas and which are PPEQ-approved must meet special USDA standards for fencing. Institutions which are entirely enclosed within a building maybe exempt from this requirement. :rom the `USDA Animal Welfare Act Regulations Subpart F - Specifications for the Humane, Handling, Care, Treatment, and Transportation of Warm- blooded Animals Other Than Dogs, Cats Rabbits, Hamsters, Guinea Pigs Nonhuman Primates, and Marine Mammals_' Source 36 FR 24925 Dec, 24, 1971 unless otherwise noted. Redesignated at 44 FR 36874, July 22, 1979 ec. 3.127 Facilities, outdoor. (d) Perimeter fence. On or after May 17, 2000, all outdoor housing facilities (i.e., facilities not entirely indoors) must be enclosed by a perimeter fence that is of sufficient height to keep animals and unauthorized persons out. Fences less than 8 feet high for potentially dangerous animals, such as, but not limited to, large felines (e.g., lions, tigers, leopards, cougars, etc.), bears, wolves, rhinoceros, and elephants, or less than 6 feet high for other animals must be approved in writing by the Administrator. The fence must be constructed so that it protects the animals in the facility by restricting animals and unauthorized persons from going through it or under it and having contact with the 10315 jb 0073333 42 animals in the facility, and so that it can function as a secondary containment system for the animals in the facility. It must be of sufficient distance from the outside of the primary enclosure_to_pr_event_physical. contact between animals inside_ the enclosureand. animals or persons outside the perimeter fence. Such fences less than 3 feet in distance from the primary enclosure must be approved in writing by the Administrator. A perimeter fence is not required: (1) Where the outside walls of the primary enclosure are made of sturdy, durable material, which may include certain types of concrete, wood, plastic, metal, or glass, and are high enough and constructed in a manner that restricts entry by animals and unauthorized persons and the Administrator gives written approval; or (2) Where the outdoor housing facility is protected by an effective natural barrier that restricts the animals to the facility and restricts entry by animals and unauthorized persons and the Administrator gives written approval; or (3) Where appropriate alternative security measures are employed and the Administrator gives written approval; or co (4) For traveling facilities where appropriate alternative security measures are employed; or (5) Where the outdoor housing facility houses only farm animals, such as, but not limited to, cows, sheep, goats, pigs, horses (for regulated purposes), or donkeys, and the facility has in place effective an customary containment and security measures. A. General This summary of work is presented for each Sub -Contractor's convenience in understating the project and its related components. Provide all Items required by the Contact Documents whether or not specifically mentioned in the sections. B. Location of the work Junior Museum and Zoo 1451 Middlefield Road Palo Alto, California 94301 United States of America C. City's Representative The City of Palo Alto will provide the following City's Representative to coordinate the work: John Aikin, Director, Palo Alto Junior Museum & Zoo PERFORMANCE REQUIREMENTS/ SCOPE OF WORK 100315jb 0073333 43 1. All Work will meet City requirements for materials and construction for as a Public Works Project. 2. The City shall inspect all work to insure that it meets the standards for Public Works -- Projects and the items scope of work. 3. Demolition 3.1. Provide a demolition plan with all items called out for on the attached drawings or as required to complete the Scope of Work 3.2. The demolition of all asphalt paving within the Zoo except were noted on the drawings. 3.3. Demolition of miscellaneous existing paving (pavers and concrete) as described on the drawings or as required to complete the Scope of Work.. 3.4. Demolition of existing wooded exterior fence. 3.5. Clearing and grubbing of vegetation•as called out on the demolition drawing or as required to complete the Scope of Work. 3.6. Provide tree protection and a tree protection plan as required by City ordinance. 4. Site Preparation 4.1. Provide a Grading Plan stamped by a licensed Civil Engineer that meets the requirements of the scope of work and conforms to all applicable ordinances and codes. 4.2. Provide excavation, backfill/compaction, rough, and finish grading to specified grades and required on the grading plan. 4.3. Verify that finished elevation of adjacent areas are as indicated on the drawings, that the appropriate sub -grade has been established for the particular surface to be installed, and the subsurface has be installed in a true even plane, and sloped to drain as indicated in the drawings. To conform with ADA guidelines there much not be more than a 2 percent slope to any grade. 4.4. Utilities 4.4.1. Indicate new area drain elevation on Grading Plan and seek approval from Utilities for modifications. 4.4.2. Provide new work and modifications to valve boxes, sanitary sewage and water drains, drinking fountains to bring existing utilities to conform to new grades in a manner that meets all codes and ordinances. 5. Paving 5.1. Provide a Site Plan that shows the new paving layout, materials, borders, and other features as required in the Scope of Work. 5.1.1. Provide new work and materials to provide and continues steel or wooden edge and primer to surround areas to be paved as indicated on the drawings unless areas abut an existing concrete perimeter (in such case provide primer to concrete). 5.1.2. Provide new work and material to install compacted sub -grade of paving of crushed rock. 5.1.3. Provide Safety Surfacing for Playgrounds of bonded rubber safety surfacing that shall be a one part pored in place toweled, rubberized seamless rubber running track surface material. 100315lb 0073333 44 5.1.3.1. Impact Course: The impact layer is to be a precise combination of black rubber and polyurethane binder and be free of foreign matter. All rubber in the impact course will be of a select quality and consistent blend of rubber sizing's to achieve maximum porosity and minimum residue. Recycled rubber is preferred. 5.1.3.2. Impact Course shall consist of shredded styrene butadiene rubber (SBR) or EPDM select rubber adhered with a 100 percent solids polyurethane binder to form a resilient porous material. 5.1.3.3. Wear Course through out paved area indicated on the drawings of Ethylene Propylene Diene Monomer (EPDM) or Thermal Plastic Vulcanized (TPV) granules with polyurethane binder formulated to precut an even, uniform, seamless surface. The surface shall be porous where indicated on the drawings, and water tight (sealed) where indicated on the drawings. 5.1.4. Compacted decomposed Granite Pathway with binder where indicated on the drawings. 6. Fencing 6.1. Provide a Site Plan that shows the new Fencing layout, materials, gates, and other features as indicated on eh attached drawings and as required in the Scope of Work. 6.2. Provide Construction Plans and Details for all fencing, gates, and other features as indicated on the attached drawings andas required in the Scot* of Work. 6.2.1. Provide Materials and work for the installation of approximately new 8' high chain link with plastic slats fencing in area shown on drawings. 6.2.2. d Provide Materials and work for the installation of approximately of 8' high wooden fencing and gates as indicated in drawing. To meet the Perimeter Fence requirements established by the US Department of Agriculture for Animal Facilities and the Standards established by the Association of Zoos and Aquariums (AZA). 6.2.3. The fence shall posts shall be a minimum of 6'x 6' in diameter. 6.2.4. The fence post footings shall be reviewed and stamped by a licensed structural engineer. 6.2.5. The materials and hardware meet the City's requirements for durability and maintenance as established by Public Works Projects and the needs of the Junior Museum and Zoo. 100315 jb 0073333 45 EXHIBIT E INSURANCE REQUIRMENTS 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 :SQUIRED TYPE OF COVERAGE REQUIREMENT EACH OCCURRENCE. AGGREGATE ES WORKER'S COMPENSATION STATUTORY ES EMPLOYER'S LIABILITY STATUTORY BODILY INJURY $1,000,000 $1,000,000 ES 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 51,000,000 . 51,000,000 LIABILITY COMBINED. BODILY INJURY $1,000,000 51,000,000 - EACH PERSON 51,000,000 $1,000,000 AUTOMOBILE LIABILITY, 'S INCLUDING ALL OWNED, HIRED, NON -OWNED - EACH OCCURRENCE PROPERTY DAMAGE $1,000,000 $1,000,000 51,000,000 51,000,000 0 BODILY INJURY AND PROPERTY DAMAGE, COMBINED 51,000,000 $1,000,000 PROFESSIONAL LIABILITY, INCLUDING, ERRORS AND OMISSIONS, MALPRACTICE (WHEN ., APPLICABLE), AND NEGLIGENT PERFORMANCE ALL DAMAGES $1,000,000 THE CITY OF PALO ALTO IS TO BE NAMED AS AN ADDITIONAL INSURED: CONTRACTOR, AT ITS SOLE COST AND 'S 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 SUBCONSULTANTS, 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 WRI I I'EN 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. H. 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 100315jb 0073333 46 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. CROSS LIABILITY 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 SMALL BE MAILED TO: PURCHASING AND CONTRACT ADMINISTRATION CITY OF PALO ALTO P.O. BOX 10250 PALO ALTO, CA 94303. 100315 jb 0073333 47 ACORD,,, CERTIFICATE OF LIABILI TY INSURANCE DATE (MM(OOlYYYY) 04/08/10 3RODUCER LTC #0726293 .rthur J. Gallagher & Co, :assurance Brokers of California, Inc. one Almaden Boulevard suite #960 an Jose, CA 95113 1-408-973-9500 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # SURD evcon Construction, Inc. 90 Gibraltar Drive ilpitas, CA 95035 INSURER A:Zurich American In Co 16535 INSURERB:National Union Fire Ins Co Of Pitts 19445 1NSURERC:Travelers Property Cas Co of Amer 25674 INSURERD:American Intl Specialty Linea Ins Co 26883 INSURER E: :OVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. SR ADD L FR INSRD TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATEIMM/DD/YYI POLtCYEXPIRATION DATEIMMIDD/YYS LIMITS A X GENERALLFA9FLITY X COMMERCIAL GENERAL LIABILITY 0L05345476-04 04/30/09 04/30/10 EACH OCCURRENCE $1,000,000 DAMAGE RENTED PREMISES (Eaoccurencel $ 300,000 CLAIMS MADE X OCCUR MED EXP (Any one person) $10,000 X Contractors Liability PERSONAL &ADVINJURY $ 1,000,000 X Blkt Additonal Insures GENERAL AGGREGATE $2,000,000 GEN'LAGGREGATE POLICY X LIMIT APPLIESPER: ECT 7 LOC PRODUCTS - COMP/OP AGG $ 2,000,000 L AUTOMOBILE X X X LIABILITY ANY AUTO BAP5345475-04 04/30/09 - 04/30/10 COMBINED SINGLE LIMIT (Ea accident) $1,000,000 BODILY INJURY (Per person) $ BODILY INJURY (Peracc€dent) $ PROPERTY DAMAGE {Per accident) $ GARAGE LIABILITY ANYALFTO AUTO ONLY- EA ACCIDENT $ OTHER THAN EA ACC $ AUTO ONLY: RGG $ EXCESS/UMBRELLALIABILITY X X OCCUR J CLAIMS MADE DEDUCTIBLE RETENTION $ 10,000 BE 44197913 04/30/09 04/30/10 EACH OCCURRENCE $ 25, 000, 000 AGGREGATE $ 25, 000, 000 5 $ $ WORKERS COMPENSATION AND EMPLOYER3'LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBEREXCLUDED? X under Mgr SPECIAL PRO VISIONSbeiow WC2979059-09 04/30/09 04/30/10 x WCSTATU- EN TORYLIMfTS ER E.L. EACH ACCIDENT $1,000,000 E.L. DISEASE- EA EMPLOYEE $1,000,000 E.L. DISEASE - POLICY LIMIT $1,000,000 OTHER Leased/Rented Equipments Pollution Liability QT -630 -5429B$04 -TIT, -09 CPO 1421304 04/30/09 04/30/09 04/30/10 04/30/11 Per Item/Limit 500,000 Each Loss/Aggregate 5,000,000 CRIPTION OF OPERATIONSILOCATIONS / VEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS Job Description: #D10-134 - Bobcat Exhibit Site Improvements. itional Insureds (014: City of Palo Alto, its council members, officers, agents & employees. RTIFICATE HOLDER #D10-134 CANCELLATION Ten Day Notice for Non -Payment of Premium y of Palo Alto Hamilton Ave. 7 Alto, CA 94301 USA SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR' TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE )RD 25 (2001108) abristos jc 15185273 ©ACORD CORPORATION 1988 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001108) Additional Insured — Automatic — Owners, Lessees Or Contractors ZURICH Policy No. Expiration Date of Pol. Effective Date of End. Agency No. Addl. Prem. Return Prem. GL05345476-04 04/30/2010 04/30/2009 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. Named Insured: Devcon Construction, Inc. Address (including ZIP Code): 690 Gibraltar Drive, Milpitas, CA 95035 This endorsement modifies insurance provided under the: Commercial General Liability Coverage Part A. Section II — Who Is An Insured is amended to include as an insured any person or organization who you are re- quired to add as an additional insured on this policy under a written contract or written agreement. B. The insurance provided to the additional insured person or organization applies only to "bodily injury", "property damage" or "personal and advertising injury" covered under SECTION I - Coverage A - Bodily Injury And Property Damage Liability and Section I - Coverage B - Personal And Advertising Injury Liability, but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by: I. Your acts or omissions; or 2. The acts or omissions of those acting on your behalf; and resulting directly from: a. Your ongoing operations performed for the additional insured, which is the subject of the written contract or written agreement; or b. "Your work" completed as included in the "products -completed operations hazard", performed for the ad- ditional insured, which is the subject of the written contract or written agreement. C. However, regardless of the provisions of paragraphs A. and B. above: 1. We will not extend any insurance coverage to any additional insured person or organization: a. That is not provided to you in this policy; or b. That is any broader coverage than you are required to provide to the additional insured person or organiza- tion in the written contract or written agreement; and 2. We will not provide Limits of Insurance to any additional insured person or organization that exceed the lower of: a. The Limits of Insurance provided to you in this policy; or b. The Limits of Insurance you are required to provide in the written contract or written agreement. Includes copyrighted material of Insurance Services Office, Inc., with its permission, U -GL -1175-B CW (3/2007) i Page 1 of 2 Policy No. Expiration Date of Pol. Effective Date of End, Agency No. Addl. Prem. Return Prem. GL05345476-04 04/30/2010 04/30/2009 D. The insurance provided to the additional insured person or organization does not apply to: "Bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering or failure to render any professional architectural, engineering or surveying services including: 1. The preparing, approving or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications; and 2. Supervisory, inspection, architectural or engineering activities. E. The additional insured must see to it that: 1. We are notified as soon as practicable of an "occurrence" or offense that may result in a claim; 2. We receive written notice of a claim or "suit" as soon as practicable; and 3. A request for defense and indemnity of the claim or "suit" will promptly be brought against any policy issued by another insurer under which the additional insured may be an insured in any capacity. This provision does not apply to insurance on which the additional insured is a Named Insured, if the written contract or written agreement requires that this coverage be primary and non-contributory. F. For the coverage provided by this endorsement: 1. The following paragraph is added to Paragraph 4.a. of the Other Insurance Condition of Section IV — Com- mercial General Liability Conditions: This insurance is primary insurance as respects our coverage to the additional insured person or organization, where the written contract or written agreement requires that this insurance be primary and non-contributory. In that event, we will not seek contribution from any other insurance policy available to the additional insured on which the additional insured person or organization is a Named Insured. 2. The following paragraph is added to Paragraph 4.b. of the Other Insurance Condition of Section IV — Com- mercial General Liability Conditions: This insurance is excess over: Any of the other insurance, whether primary, excess, contingent or on any other basis, available to an additional insured, in which the additional insured on our policy is also covered as an additional insured by attachment of an endorsement to another policy providing coverage for the same "occurrence", claim or "suit". This provision does not apply to any policy in which the additional insured is a Named Insured on such other policy and where our policy is required by written contract or written agreement to provide coverage to the additional insured on a primary and non-contributory basis. G. This endorsement does not apply to an additional insured which has been added to this policy by an endorsement showing the additional insured in a Schedule of additional insureds, and which endorsement applies specifically to that identified additional insured. Any provisions in this Coverage Part not changed by the terms and conditions of this endorsement continue to apply as written. Includes copyrighted material of Insurance Services Office, Inc., with its permission. U -GL -1175 B CW (3/2007) Page 2of2 SUPPLEMENT TO CERTIFICATE OF INSURANCE NAME OF INSURED: Devcan Construction, Inc. DATE 04/08/10 Additional Information: Includes: General Liability: Additional Insured -Automatic -Owners, Lessees Or Contractors as required by written contract per attached form U -GL -13.75 H CW (3/2007). Coverage is Primary per attached form U -GL -1175 E CW (3/2007). SUPP (05/04) EXHIBIT F Contractor's Performance Surety Bond WHEREAS, the City Council of the City of Palo Alto, State of California ("City") and Devcon Construction, Inc., ("Principal") have entered into an agreement dated , and identified as "Design -Build of the Palo Alto Junior Museum and Zoo Fencing and Paving Project", 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 One Hundred Thirteen Thousand One Hundred Dollars, 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 casts 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 100315 jb 0073333 1 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: 100315 j 0073333 2 CERTIFICATE OF ACKNOWLEDGMENT (Civil Code § 1189) STATE OF ) COUNTY OF ) On , before rne, , 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 instnunent 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) 100315 i 0073333 3 EXHIBIT G Contractor's Payment (Labor and Materials) SURETY BOND WHEREAS, the City Council of the City of Palo Alto State of California ("City") and Devcon Construction, Inc., ("Principal"), have entered into an agreement dated , and identified as "Design -Build of Palo Alto Junior Museum and Zoo Fencing and Paving Project", 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 of , and duly authorized to transact business as au admitted surety, under the Laws of the State of California, are held and firmly bound unto City in the penal sum of One Hundred Thirteen Thousand One Hundred Dollars, 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 all 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, PHONE NUMBER: BY: Its: Contractor: 1 003 15 jb 0073333 4 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 signatuie(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) 100315jb 0073333 5