HomeMy WebLinkAboutStaff Report 12056
City of Palo Alto (ID # 12056)
City Council Staff Report
Report Type: Consent Calendar Meeting Date: 6/7/2021
City of Palo Alto Page 1
Summary Title: Design/Build Contract for Civic Center Fire Life Safety
Upgrades
Title: Approval of a Design -build Contract With Johnson Controls Fire
Protection LP in the Amount of $517,280, and Authorization for the City
Manager to Negotiate and Execute R elated Change Orders With Johnson
Controls Fire Protection LP for a Not -to-Exceed Amount of $51,728, for a
Total Not-to-Exceed Contract Amount of $569,008 for the Civic Center Fire
Life Safety Upgrades, Capital Improvement Program Project PE -18016
From: City Manager
Lead Department: Public Works
Recommended Motion
Staff recommends that Council:
1. Approve and authorize the City Manager or designee to execute a design-build contract
with Johnson Controls Fire Protection LP (Contract No. C21179385) in an amount not-to-
exceed $517,280 for design and construction of the Civic Center Fire Life Safety
Upgrades Capital Improvement Program project, PE-18016; and
2. Authorize the City Manager or designee to negotiate and execute change orders to the
contract with Johnson Controls Fire Protection LP for related additional, but unforeseen
work that may develop during the project, the total value of which shall not exceed
$51,728.
Background
The City of Palo Alto Civic Center is now over 50 years old. There have been numerous
remodels within the structure over the past several decades. More recently, a number of new
rooms and public areas have been constructed which require additional initiating and
notification devices to be added to the fire safety system to comply with current codes. The
existing fire alarm system has not been upgraded in over twenty-five years and has exceeded its
capacity for expansion.
CITY OF
PALO
ALTO
City of Palo Alto Page 2
Current life safety codes require that each of the newly constructed rooms include notification
devices for the occupants within. This will also require the installation of additional initiating
devices. The existing fire alarm system does not have capacity for the required new devices.
The intent of the replacement equipment is to improve the resiliency and reliability of the City’s
fire life safety system by replacing the existing outdated system, ensuring adequate protection
to all areas of the Civic Center.
Discussion
The Request for Proposal (RFP) for the project, consistent with a design-build approach, was
advertised with sufficient information for a specialized vendor to finalize the design, obtain any
necessary permits, and propose a not-to-exceed fee for the total project including installation.
The installation will include additional placements of new notification and initiation devices,
rewiring portions of the building (as necessary), and successfully assimilating the new system
into the same location as the existing fire alarm control panel.
Procurement Process
On August 25, 2020, an RFP for the Civic Center Fire Life Safety Project was posted on the
PlanetBids portal and sent to 17 contractors. The procurement period was 53 days. Proposals
were received from one qualified firm on October 16, 2020, as listed in the Summary of RFP
Process below.
Summary of RFP Process
RFP NAME/NUMBER CIVIC CENTER FIRE LIFE SAFETY PROJECT, CAPITAL
IMPROVEMENT PROGRAM (CIP) PROJECT PE-18016 / RFP
# 179385
PROPOSED LENGTH OF PROJECT 270 calendar days
NUMBER OF CONTRACTORS
CONTACTED
1624
NUMBER OF WEBSITES 1 (PlanetBids)
TOTAL DAYS TO RESPOND TO RFP 53
MANDATORY PRE-PROPOSAL
MEETING
September 4, 2020 at 9:00 A.M.
NUMBER OF COMPANY
ATTENDEES AT PRE-PROPOSAL
MEETING
8
NUMBER OF PROPOSALS
RECEIVED:
1
PROPOSAL PRICE RANGE $546,782 plus $29,200 for Alternate Scope #1
Staff reviewed the proposal submitted and recommends that a contract be awarded to Johnson
Controls Fire Protection LP. The proposed system is very robust and will ensure future
City of Palo Alto Page 3
expansion capability to meet the Civic Center’s growth needs well into the future. The system
includes a much-needed replacement of the pre-action system that protects the City’s
information technology equipment and server areas. This item was originally proposed by the
Design Build Entity (DBE) as Alternate Scope #1, but through further negotiations it is now
included as part of the Base Bid. An important safety enhancement to the system includes the
ability to continually self-monitor all the addressable components. This also allows for the
annual testing of the system to be performed during regular working hours without disturbing
building occupants with the associated noise of the alarms and visual notification devices
activating. Testing during non-overtime hours will also yield a small cost savings of
approximately $2,000 per year. Additional enhancements include the capability to interact with
future alarm needs such as an early detection warning system for earthquakes as well as to
interact with the proposed Hexagon CAD system for monitoring Civic Center devices from the
new Public Safety Building following its construction.
The Johnson Controls Fire Protection LP proposal best accomplishes the City’s needs as
requested in the RFP and is reasonable for the scope of work requested . Staff further
negotiated the final scope, schedule, and total compensation of $517,280 (inclusive of
Alternate Scope #1) in the attached contract with Johnson Controls Fire Protection LP to align
with the available CIP budget.
The recommended contract will implement a design-build, turnkey project which includes
design, provision of all parts and equipment, and installation of the fire life safety system as
depicted in the RFP. A contract contingency amount of $51,728 (which equals 10 percent of the
total contract) is requested for related, additional but unforeseen work which may develop
during the project. Staff also contacted the listed references for Johnson Controls Fire
Protection LP and found that they have performed satisfactory work on past construction
projects for other clients.
Timeline
Once the contract is approved, the Notice to Proceed will be issued. Staff anticipates the
design-build process to take approximately nine months.
Resource Impact
Funding for this contract is available in the Civic Center Fire Life Safety Upgrades project (PE-
18016).
This contract is on the City’s design-build contract template, which permits the City to
terminate without cause/for convenience by providing written notice to the contractor. In the
event the City finds itself facing a challenging budget situation, and it is determined that City
resources need to be refocused elsewhere, the City can terminate for co nvenience. Other
options include termination due to non-appropriation of funds or amending the contract to
reduce the cost, for example, by reducing the scope of work.
City of Palo Alto Page 4
Policy Implications
This project aligns with the City’s ongoing efforts of safety an d security for Palo Alto residents
by investing in the maintenance and improvement of the City’s civic buildings.
Stakeholder Engagement
Initial preplanning for this project was completed during the mandatory pre -bid conference
which included representatives from City of Palo Alto Fire, Police, and Public Works
Departments. Each department will have further opportunities for review and comment during
the final planning and permitting functions.
Environmental Review
This project is categorically exempt from the California Environmental Quality Act (CEQA) under
Section 15301 Class 1 of the CEQA Guidelines as repair, maintenance and/or minor alteration of
the existing facilities and no further environmental review is necessary.
Attachments:
• Attachment A: C21179385 JCI Design-Build Contract
DESIGN-BUILD 1 2021
CONTRACT
DESIGN-BUILD CONTRACT
Contract No. C21179385
City of Palo Alto
Civic Center Fire Life Safety Upgrades Project
Attachment A
CI TY OF
PALO
ALTO
DESIGN-BUILD 2 2021
CONTRACT
DESIGN-BUILD CONTRACT
TABLE OF CONTENTS
SECTION 1 INCORPORATION OF RECITALS AND DEFINITIONS ................................................................... 4
1.1 Recitals .............................................................................................................................................. 4
1.2 Definitions ......................................................................................................................................... 4
SECTION 2 THE PROJECT ............................................................................................................................. 4
SECTION 3 THE CONTRACT DOCUMENTS ................................................................................................... 5
3.1 List of Documents .............................................................................................................................. 5
3.2 Order of Precedence ......................................................................................................................... 5
SECTION 4 DBE’S DUTY ............................................................................................................................... 6
4.1 Relationship of Trust and Confidence ............................................................................................... 6
4.2 Scope of Services ............................................................................................................................... 6
4.3 Design Services .................................................................................................................................. 6
4.4 Construction Services ........................................................................................................................ 7
4.5 DBE’s Subcontractors ........................................................................................................................ 8
4.6 Coordination of Work ........................................................................................................................ 8
4.7 DBE’s Representative ........................................................................................................................ 9
SECTION 5 PROJECT TEAM .......................................................................................................................... 9
SECTION 6 TIME OF COMPLETION .............................................................................................................. 9
6.1 Time is of Essence ............................................................................................................................. 9
6.2 Commencement of Work .................................................................................................................. 9
6.3 Contract Time .................................................................................................................................... 9
6.4 Liquidated Damages .......................................................................................................................... 9
6.5 Adjustments to Contract Time .......................................................................................................... 9
SECTION 7 COMPENSATION TO DBE......................................................................................................... 10
7.1 Contract Sum ................................................................................................................................... 10
7.2 Full Compensation........................................................................................................................... 10
SECTION 8 STANDARD OF CARE ................................................................................................................ 10
SECTION 9 INDEMNIFICATION .................................................................................................................. 10
9.1 Hold Harmless ................................................................................................................................. 10
9.2 Survival ............................................................................................................................................ 10
SECTION 10 NONDISCRIMINATION ............................................................................................................. 11
SECTION 11 INSURANCE AND BONDS ......................................................................................................... 11
SECTION 12 PROHIBITION AGAINST TRANSFERS ........................................................................................ 11
SECTION 13 NOTICES .................................................................................................................................. 11
13.1 Method of Notice ............................................................................................................................ 11
13.2 Notice Recipients ............................................................................................................................ 11
13.3 Change of Address........................................................................................................................... 12
SECTION 14 DEFAULT .................................................................................................................................. 12
14.1 Notice of Default ............................................................................................................................. 12
14.2 Opportunity to Cure Default ........................................................................................................... 13
DESIGN-BUILD 3 2021
CONTRACT
SECTION 15 CITY’S RIGHTS AND REMEDIES ................................................................................................ 13
15.1 Remedies Upon Default .................................................................................................................. 13
15.2 Delays by Sureties ........................................................................................................................... 14
15.3 Damages to City .............................................................................................................................. 14
15.4 Suspension by City .......................................................................................................................... 14
15.5 Termination Without Cause ............................................................................................................ 15
15.6 DBE’s Duties Upon Termination ...................................................................................................... 16
SECTION 16 DBE’S RIGHTS AND REMEDIES ................................................................................................ 16
16.1 DBE’S Remedies............................................................................................................................... 16
16.2 Damages to DBE .............................................................................................................................. 17
SECTION 17 ACCOUNTING RECORDS .......................................................................................................... 17
17.1 Financial Management and City Access .......................................................................................... 17
17.2 Compliance with City Requests ....................................................................................................... 17
SECTION 18 INDEPENDENT PARTIES ........................................................................................................... 17
SECTION 19 NUISANCE ................................................................................................................................ 17
SECTION 20 PERMITS AND LICENSES .......................................................................................................... 18
SECTION 21 WAIVER ................................................................................................................................... 18
SECTION 22 GOVERNING LAW AND VENUE ............................................................................................... 18
SECTION 23 COMPLETE AGREEMENT ......................................................................................................... 18
SECTION 24 SURVIVAL OF CONTRACT ........................................................................................................ 18
SECTION 25 PREVAILING WAGES ................................................................................................................ 18
SECTION 26 NON APPROPRIATION ............................................................................................................. 19
SECTION 27 AUTHORITY.............................................................................................................................. 19
SECTION 28 COUNTERPARTS ...................................................................................................................... 19
SECTION 30 STATUTORY AND REGULATORY REFERENCES ......................................................................... 20
SECTION 31 WORKERS’ COMPENSATION CERTIFICATION .......................................................................... 20
SECTION 32 DIR REGISTRATION AND OTHER REQUIREMENTS ................................................................... 20
32.1 General Notice to Contractor .......................................................................................................... 20
32.2 Labor Code section 1771.1(a) ......................................................................................................... 20
32.3 DIR Registration Required ............................................................................................................... 20
32.4 Posting of Job Site Notices .............................................................................................................. 20
32.5 Payroll Records ................................................................................................................................ 20
32.6 Employment of Apprentices ........................................................................................................... 21
DESIGN-BUILD 4 2021
CONTRACT
DESIGN-BUILD CONTRACT
THIS DESIGN-BUILD CONTRACT (“Contract” or “Agreement”) entered into on _______, 2021 (“Execution Date”) by and
between the CITY OF PALO ALTO, a California chartered municipal corporation ("City"), and JOHNSON CONTROLS FIRE
PROTECTION LP, a Design-Build Entity ("DBE" or “Design-Build Team” or “DBT”), is made with reference to the following:
R E C I T A L S:
A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with
the power to carry on its business as it is now being conducted under the statutes of the State of California and the
Charter of City.
B. DBE is a limited partnership duly organized and in good standing in the State of Delaware, DBE’s California
License Number 986047. DBE represents that it is duly licensed by the State of California and has the background,
knowledge, experience and expertise to perform the obligations set forth in this Design-Build Contract.
C. On August 25, 2020, City issued a Request for Proposals (“RFP”) to DBEs for the Civic Center Fire Life Safety
Upgrades (“Project”). In response to the RFP, DBE submitted a Proposal.
D. City and DBE desire to enter into this Design-Build Contract to provide the Design-Build Services for the Project,
and other such services as identified in the Contract Documents for the Project upon the following terms and conditions.
NOW THEREFORE, in consideration of the mutual promises and undertakings hereinafter set forth and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is mutually agreed
by and between the undersigned parties as follows:
SECTION 1 INCORPORATION OF RECITALS AND DEFINITIONS.
1.1 Recitals.
All of the recitals are incorporated herein by reference.
1.2 Definitions.
Capitalized terms shall have the meanings set forth in the RFP, this Design-Build Contract and/or in the General
Conditions. If there is a conflict between the definitions in the RFP, this Design-Build Contract or in the General
Conditions, the definitions in this Design-Build Contract shall prevail.
SECTION 2 THE PROJECT.
The Project is the Civic Center Fire Life Safety Upgrades Project, located at 250 Hamilton Avenue, Palo Alto, CA. 94301.
SECTION 3 THE CONTRACT DOCUMENTS.
3.1 List of Documents.
The Contract Documents (sometimes collectively referred to as “Agreement” or “Contract”) consist of the following
documents which are hereby incorporated into this Design-Build Contract by reference.
1) Change Orders
DESIGN-BUILD 5 2021
CONTRACT
2) Field Orders
3) Design-Build Contract
4) RFP Addenda
5) Special Provisions
6) General Conditions
7) Approved Design Documents (to be developed by DBE)
8) Bridging Documents
9) Performance and Payment Bonds
10) Instructions to Proposers
11) Request for Proposals (RFP)
12) DBE's Proposal/Non-Collusion Affidavit
13) Reports listed in the Contract Documents
14) Public Works Department’s Standard Drawings and Specifications (most current version at time of
Proposal)
15) Utilities Department’s Water, Gas, Wastewater, Electric Utilities Standards (most current version at time
of Proposal)
16) City of Palo Alto Traffic Control Requirements
17) City of Palo Alto Truck Route Map and Regulations
18) Pre-Qualification Questionnaire
3.2 Order of Precedence.
For the purposes of construing, interpreting and resolving inconsistencies between and among the provisions of this
Contract, the Contract Documents shall have the order of precedence as set forth in the preceding section. If a claimed
inconsistency cannot be resolved through the order of precedence, the City shall have the sole power to decide which
document or provision shall govern as may be in the best interests of the City.
SECTION 4 DBE’S DUTY.
4.1 Relationship of Trust and Confidence. DBE accepts the relationship of trust and confidence established
between it and City by this Contract. DBE agrees to furnish the Design-Build Services necessary for the design and
completion of the Project and agrees to furnish efficient business admin istration and superintendence, and to use its
best efforts to complete the Project in the best and soundest way and in the most efficient and economical manner
consistent with the best interest of City.
DESIGN-BUILD 6 2021
CONTRACT
4.1.1 DBE represents that it is an independent DBE and that it is familiar with the type of Design-Build
Services it is undertaking.
4.1.2 Neither DBE nor any of its agents or employees shall act on behalf of or in the name of City unless
authorized in writing by City’s Representative.
4.1.3 DBE shall perform its obligations with integrity, ensuring at a minimum that conflicts of interest,
including but not limited to conflicts of interests on the part of the Design Professionals employed by DBE, shall
be avoided.
4.2 Scope of Services. DBE shall be responsible for procuring or providing the Design-Build Services for the Project
consistent with the Contract Documents. DBE shall exercise reasonable skill and judgment in the procurement and
provision of the Design-Build Services, consistent with the applicable industry practices and the terms and conditions of
the Contract Documents.
4.3 Design Services.
4.3.1 Architectural and Engineering Services. Architectural and engineering services must be provided by
licensed, independent Design Professionals retained by DBE or by licensed employees of DBE, or as permitted
by the law of the State of California. DBE may not engage the services of any Design Professional for this Project
without obtaining the City’s prior written approval, which approval will not be unreasonably withheld. City’s
approval will not be deemed to create any contractual relationship between City and any such Design
Professional, except that the City must be considered a third-party beneficiary of such Design Professional’s
services for the Project. DBE must bind its Design Professionals in the same manner as DBE is bound to the City
under this Contract, including, but not limited to, the insurance and indemnity requirements set forth herein.
All Design Services must be guided by the Bridging Documents and Design Documents which are approved by
City.
4.3.2 Project Schedule. Within fourteen (14) days following full execution of the Contract, DBE must
prepare and submit for City’s review and approval a preliminary Project Schedule showing the timing and
sequencing of the Design-Build Services required to complete the Project. Unless otherwise specified by City,
the preliminary Project Schedule should include the major phases for the Design Services and for the
Construction Services, including, but not limited to, completion of Design Development Documents;
Construction Documents; procurement of Subcontractors; construction; final close out; as well as any other
milestones applicable to this Project. The Project Schedule shall be updated for City’s review and approval
upon completion of each milestone included in the Project Schedule.
4.3.3 Design Development Documents. Within twenty (20) days following execution of the Contract, DBE shall
prepare and submit for City’s review and approval the Design Development Documents. The Design
Development Documents must be based on the Bridging Documents, as may be modified by th e use permit
from or design approvals by City, but must further define the Project, including drawings and outline
specifications fixing and describing the Project size, character and site relationships, and other appropriate
elements describing the structural, architectural, mechanical and electrical systems. The Design Development
Documents shall include, as applicable, plans, sections and elevations; criteria and sizing of major components;
equipment sizes and capacities and approximate layouts, includi ng required spaces and clearances; typical
details; materials selections and general quality levels. When submitting the Design Development Documents,
the DBE shall identify in writing, for City’s approval, all material changes and deviations that have taken place
since approval of the Bridging Documents and the Project Schedule. Two printed sets and one reproducible set
of Design Development Documents must be provided to the City.
DESIGN-BUILD 7 2021
CONTRACT
4.3.4 Construction Documents. Within forty (40) days following City’s approval of the Design Development
Documents, DBE must prepare and submit for City’s review and approval, Construction Documents setting
forth in detail the quality levels of and the requirements for construction of the Project, and consisting of
drawings and specifications that comply with applicable codes, laws, and regulations in effect at the time of
their preparation at the location of the Project. The Construction Documents must also include all necessary
bid and contract documents for procuring and providing the Construction Services, all of which are subject to
approval by City and its legal counsel. When submitting the Construction Documents, the DBE shall identify in
writing all for City’s approval, all material changes and deviations that have taken place since approval of the
Design Development Documents and Project Schedule. Two printed sets and one reproducible set of
Construction Documents must be provided to the City.
4.3.5 Ownership of Documents.
4.3.5.1 Ownership of Tangible Documents. City shall receive ownership of the property rights, except
for copyrights, of all documents, drawings, specifications, electronic data and information prepared, provided
or procured by DBE, as part of the Design Services .
4.3.5.2 Use of Documents in Event of Termination. In the event of a termination of this Contract,
City shall have the right to use, to reproduce, and to make derivative works of the Design Documents to
complete the Project, regardless of whether there has been a transfer of copyright to City.
4.3.5.3 City’s Use of Documents After Completion of Project. After completion of the Project, City
may reuse, reproduce or make derivative works from the Design Documents solely for the purposes of
maintaining, renovating, remodeling or expanding the Project.
4.3.5.4 DBE shall obtain from its Subcontractors and Design Professionals rights and rights of use that
correspond to the rights given by DBE to City in this Contract and DBE shall provide evidence that such
rights have been secured.
4.4 Construction Services.
4.4.1 DBE shall provide all labor, materials, equipment and services necessary to perform and timely complete
the Construction Services in strict accordance with the Contract Documents, and in an economic and efficient
manner in the best interests of City.
4.4.2 DBE is responsible for supervising and directing all aspects of the Work to facilitate the efficient and timely
completion of the Work. DBE is solely responsible for, and required to exercise full control over, construction
means, methods, techniques, sequences, procedures, and coordination of all portions of the Work, except to
the extent that the Contract Documents provide other specific instructions.
4.4.3 DBE shall provide sufficient and competent Subcontractors, administration, staff, and skilled workforce
necessary to perform and timely complete the Work in accordance with the Contract Documents.
4.4.4 DBE shall, at all times during performance of the Work, provide a qualified full -time superintendent,
acceptable to City, and assistants, as necessary, who must be physically present at the Project site while any
aspect of the Work is being performed.
4.4.5 DBE must, at all times, ensure that the Work is performed in a good workmanlike manner and in full
compliance with the Contract Documents and all applicable laws, regulations, codes, standards, and permits.
4.4.6 DBE is solely responsible to City for the acts or omissions of any party or parties performing portions of
DESIGN-BUILD 8 2021
CONTRACT
the Work or providing equipment, materials or services for or on behalf of DBE or its Subcontractors.
4.4.7 DBE shall promptly correct, at DBE’s sole expense, any Work that is deficient or defective in workmanship,
materials, and equipment.
4.4.8 DBE shall keep such full and detailed accounts as may be necessary for proper financial management under
this Contract. City shall be afforded access to all DBE's records, books, correspondence, instructions, drawings,
receipts, vouchers, memoranda and similar data relating to Change Order work performed on the basis of actual cost.
DBE shall preserve all such records for a period of three years after the Final Payment or longer where required by law.
4.4.9 DBE shall provide periodic written reports to City on the progress of the Work in such detail as is required by
City and as agreed to by City and DBE.
4.5 DBE’s Subcontractors.
4.5.1 All Work which is not performed by DBE with its own duly licensed forces shall be performed by
Subcontractors. DBE must provide each Subcontractor with a complete set of the Construction Documents
and any approved modifications thereto.
4.5.2 DBE shall require every Subcontractor and material supplier to be bound to the provisions of the
Contract Documents as they apply to the Subcontractor’s or material supplier’s portion(s) of the Work, and to
likewise bind their Subcontractors or material suppliers. City reserves the right to reject any Subcontractor or
material supplier based upon City’s reasonable belief that the Subcontractor or material supplier is not
adequately qualified, or whose performance is unacceptable to the City, or who has a history of u nacceptable
performance on other public works projects. Nothing in these Contract Documents creates a contractual
relationship between a Subcontractor or material supplier and City, but City shall be deemed to be a third-
party beneficiary of the contract between DBE and each Subcontractor.
4.5.3 If the Contract is terminated, each subcontract agreement shall be assigned by DBE to City, subject to
the prior rights of any surety, provided that the City accepts such assignment by written notification, and
assumes all rights and obligations of DBE pursuant to each such subcontract agreement.
4.5.4 All Subcontractors bidding on contracts for the Work shall be afforded the applicable protections
contained in the Subletting and Subcontracting Fair Practices Act (Public Contract Code Section 4100 et seq.).
4.6 Coordination of Work. City reserves the right to perform or to have performed other work on or adjacent to
the Project site while the Work is being performed. DBE is responsible for coordinating its Wor k with other work being
performed on or adjacent to the Project site, and shall avoid hindering, delaying, or interfering with the work of other
contractors. To the full extent permitted by law, DBE shall hold harmless and indemnify City against any and all claims
arising from or related to DBE’s avoidable, negligent, or willful hindrance of, delay to, or interference with the work of
another contractor or City’s own forces.
4.7 DBE’s Representative. DBE shall designate a person who shall be DBE's authorized representative, subject
to City’s approval, which shall not unreasonably be withheld.
SECTION 5 PROJECT TEAM.
In addition to DBE, City has retained, or may retain, a Design Consultant or other consultants and contractors to provide
professional and technical consultation for the design and construction of the Project. The Contract requires that DBE
DESIGN-BUILD 9 2021
CONTRACT
operate efficiently, effectively and cooperatively with City as well as all other members of the Project Team and other
contractors retained by City to construct other portions of the Project.
SECTION 6 TIME OF COMPLETION.
6.1 Time Is of Essence.
Time is of the essence with respect to all time limits set forth in the Contract Documents.
6.2 Commencement of Work.
DBE shall commence the Design-Build Services on the date(s) specified in City’s Notice to Proceed.
6.3 Contract Time.
The Design-Build Services must begin on the date specified on the City’s Notice to Proceed and shall be
completed
not later than .
within two hundred seventy (270 ) calendar days after the commencement date specified in City’s
Notice to Proceed.
By executing this Design-Build Contract, DBE expressly waives any claim for delayed early completion.
6.4 Liquidated Damages.
Pursuant to Public Contract Code Section 7203, if DBE fails to achieve Final Completion of the entire Work
within the Contract Time, including any approved extensions thereto, City may assess liquidated damages on
a daily basis for each day of Unexcused Delay in achieving Final Completion, based on the amount of five
hundred dollars ($500) per day, or as otherwise specified in the Special Provisions. Liquidated damages may
also be separately assessed for failure to meet milestones specified elsewhere in the Contract Documents,
regardless of impact on the time for achieving Final Completion. The assessment of liquidated damages is not
a penalty but considered to be a reasonable estimate of the amount of damages City will suffer by delay in
completion of the Work. The City is entitled to set off the amount of liquidated damages assessed against any
payments otherwise due to DBE, including, but not limited to, setoff against release of retention. If the total
amount of liquidated damages assessed exceeds the amount of unreleased retention, City is entitled to recover
the balance from DBE or its sureties. Beneficial occupancy or use of the Project in whole or in part prior to
Final Completion, shall not operate as a waiver of City’s right to assess liquidated damages.
6.4.1 Other Remedies.
City is entitled to any and all available legal and equitable remedies City may have where City’s Losses are
caused by any reason other than DBE’s failure to achieve Substantial Completion of the entire Work within the
Contract Time.
6.5 Adjustments to Contract Time.
The Contract Time may only be adjusted for time extensions approved by City and memorialized in a Change
Order approved in accordance with the requirements of the Contract Documents.
~
DESIGN-BUILD 10 2021
CONTRACT
SECTION 7 COMPENSATION TO DBE.
7.1 Contract Sum.
DBE shall be compensated for satisfactory completion of the Design-Build Services in compliance with the
Contract Documents the Contract Sum of Five Hundred Seventeen Thousand Two Hundred Eighty Dollars
($517,280).
[This amount includes the Base Proposal and Additive Alternates 1.]
7.2 Full Compensation.
The Contract Sum shall be full compensation to DBE for all Design-Build Services provided by DBE and, except
as otherwise expressly permitted by the terms of the Contract Documents, shall cover all Losses arising out of
the nature of the Design-Build Services or from the acts of the elements or any unforeseen difficulties or
obstructions which may arise or be encountered in performance of the Design-Build Services until its
Acceptance by City, all risks connected with the Design-Build Services, and any and all expenses incurred due
to suspension or discontinuance of the Design-Build Services, except as expressly provided herein. The
Contract Sum may only be adjusted for Change Orders approved in acc ordance with the requirements of the
Contract Documents.
SECTION 8 STANDARD OF CARE.
DBE agrees that the Design-Build Services shall be performed by qualified, experienced and well-supervised personnel.
All Design-Build Services performed in connection with this Design-Build Contract shall be performed in a manner
consistent with the standard of care under California law applicab le to those who specialize in providing such services
for projects of the type, scope and complexity of the Project.
SECTION 9 INDEMNIFICATION.
9.1 Hold Harmless.
To the fullest extent permitted by law, DBE shall protect, indemnify, defend and hold harmless City, its Council
members, officers, employees and agents (each an “Indemnified Party”) from and against any and all demands,
claims, or liabilities 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, experts fees, court costs and
disbursements (“Claims”) that arise out of, pertain to, or relate to the negligence, recklessness, or willful
misconduct of the DBE, its officers, employees, agents or contractors under this Agreement, regardless of
whether or not it is caused in part by an Indemnified Party.
Notwithstanding the above, nothing in this section shall be construed to require DBE to indemnify an
Indemnified Party from Claims arising from the active negligence, sole negligence, or willful misconduct of an
Indemnified Party.
DBE shall pay City for any costs City incurs to enforce this provis ion. Nothing in the Contract Documents shall
be construed to give rise to any implied right of indemnity in favor of DBE against City or any other Indemnitee.
Pursuant to Public Contract Code Section 9201, City shall timely notify DBE upon receipt of any third-party
claim relating to the Contract.
DESIGN-BUILD 11 2021
CONTRACT
9.2 Survival.
The acceptance of DBE’s services and duties by City shall not operate as a waiver of the right of indemnification.
The provisions of this Section 9 shall survive the expiration or termination of this Agreement.
SECTION 10 NONDISCRIMINATION.
As set forth in Palo Alto Municipal Code section 2.30.510, Contractor certifies that in the performance of this
Agreement, it shall not discriminate in the employment of any person due to the race, skin color, gender, gender
identity, age, religion, disability, national origin, ancestry, sexual orientation, pregnancy, genetic information or
condition, housing status, marital status, familial status, weight or height of such person. Contractor acknowledges
that it has read and understands the provisions of S ection 2.30.510 of the Palo Alto Municipal Code relating to
Nondiscrimination Requirements, and the penalties for violation thereof, and will comply with all requirements of
Section 2.30.510 pertaining to nondiscrimination in employment.
SECTION 11 INSURANCE AND BONDS.
Within ten (10) business days following issuance of the Notice of Award, DBE shall provide City with evidence satisfactory
to the City that DBE has obtained insurance and has sufficient bonding capacity to provide Performance and Payment
Bonds satisfying all requirements in Article 11 of the General Conditions.
SECTION 12 PROHIBITION AGAINST TRANSFERS.
City is entering into this Design-Build Contract in reliance upon the stated experience and qualifications of the DBE and
its Design Professionals and Subcontractors as set forth in DBE’s Proposal. Accordingly, DBE shall not assign,
hypothecate or transfer this Design-Build Contract or any interest therein directly or indirectly, by operation of law or
otherwise without the prior written consent of City. Any assignment, hypothecation or transfer without said consent
shall be null and void and shall be deemed a substantial breach of contract and grounds for default in addition to any
other legal or equitable remedy available to the City.
The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of DBE or of any
general partner or joint venturer or syndicate member of DBE, if the DBE is a partnership or joint venture or syndicate
or co-tenancy, shall result in changing the control of DBE, shall be construed as an assignment of this Design-Build
Contract. Control means more than fifty percent (50%) of the voting power of the corporation or other entity.
SECTION 13 NOTICES.
13.1 Method of Notice.
All notices, demands, requests or approvals to be given under this Design-Build Contract shall be given in writing and
shall be deemed served on the earlier of the following:
(i) On the date delivered if delivered personally;
(ii) On the third business day after the deposit thereof in the United States mail, postage prepaid, and
addressed as hereinafter provided;
(iii) On the date sent if sent by facsimile transmission;
(iv) On the date sent if delivered by electronic mail; or
(v) On the date it is accepted or rejected if sent by certified mail.
13.2 Notice Recipients.
DESIGN-BUILD 12 2021
CONTRACT
All notices, demands or requests (including, without limitation, Change Order Requests and Claims) from DBE
to City shall include the Project name and the number of this Design-Build Contract and shall be addressed to
City at:
To City: City of Palo Alto
City Clerk
250 Hamilton Avenue
P.O. Box 10250
Palo Alto, CA 94303
Copy to: City of Palo Alto
Public Works Engineering
250 Hamilton Avenue
Palo Alto, CA 94301
Attn: Philip Ciralsky
AND
[Include Construction Manager, If Applicable.]
City of Palo Alto
Utilities Engineering
250 Hamilton Avenue
Palo Alto, CA 94301
Attn:
In addition, copies of all Claims by DBE under this Design-Build Contract shall be provided to the following:
Palo Alto City Attorney’s Office
250 Hamilton Avenue
P.O. Box 10250
Palo Alto, California 94303
All Claims shall be delivered personally or sent by certified mail.
All notices, demands, requests or approvals from City to DBE shall be addressed to:
Fred Toste
Sales Executive
6952 Preston Ave, Ste. A, Livermore, CA 94551
(510) 750-3918
Fred.Toste@jci.com
13.3 Change of Address.
In advance of any change of address, DBE shall notify City of the change of address in writing. Each party may,
by written notice only, add, delete or replace any individuals to whom and addresses to which notice shall be
provided.
DESIGN-BUILD 13 2021
CONTRACT
SECTION 14 DEFAULT.
14.1 Notice of Default.
In the event that City determines, in its sole discretion, that DBE has failed or refused to perform any of the
obligations set forth in the Contract Documents, or is in breach of any provision of the Contract Documents,
City may give written notice of default to DBE in the manner specified for the giving of notices in the Design-
Build Contract, with a copy to DBE’s performance bond surety.
14.2 Opportunity to Cure Default.
Except for emergencies, DBE shall cure any default in performance of its obligations under the Contract
Documents within two (2) Days (or such shorter time as City may reasonably require) after receip t of written
notice. However, if the breach cannot be reasonably cured within such time, DBE will commence to cure the
breach within two (2) Days (or such shorter time as City may reasonably require) and will diligently and
continuously prosecute such cure to completion within a reasonable time, which shall in no event be later than
ten (10) Days after receipt of such written notice.
SECTION 15 CITY'S RIGHTS AND REMEDIES.
15.1 Remedies Upon Default.
If DBE fails to cure any default of this Design-Build Contract within the time period set forth above in Section
14, then City may pursue any remedies available under law or equity, including, without limitation, the
following:
15.1.1 Delete Certain Services.
City may, without terminating the Design-Build Contract, delete certain portions of the Design-Build Services,
reserving to itself all rights to Losses related thereto.
15.1.2 Perform and Withhold.
City may, without terminating the Design-Build Contract, engage others to perform the Design-Build Services
or portion thereof that has not been adequately performed by DBE and withhold the cost thereof to City from
future payments to DBE, reserving to itself all rights to Losses related thereto.
15.1.3 Suspend The Design-Build Contract.
City may, without terminating the Design-Build Contract and reserving to itself all rights to Losses related
thereto, suspend all or any portion of this Design-Build Contract for as long a period of time as City determines,
in its sole discretion, in which event City shall have no obligation to adjust the Contract Sum or Contract Time,
and shall have no liability to DBE for damages if City directs DBE to resume Design-Build Services.
15.1.4 Terminate the Design-Build Contract for Default.
City shall have the right to terminate this Design-Build Contract, in whole or in part, upon the failure of DBE to
promptly cure any default as required by Section 14. City’s election to terminate the Design-Build Contract for
default shall be communicated by giving DBE a written notice of termination in the manner specified for the
giving of notices in the Design-Build Contract. Any notice of termination given to DBE by City shall be effective
immediately, unless otherwise provided therein.
15.1.5 Invoke the Performance Bond.
City may, with or without terminating the Design-Build Contract and reserving to itself all rights to Losses
related thereto, exercise its rights under the Performance Bond.
DESIGN-BUILD 14 2021
CONTRACT
15.1.6 Additional Provisions.
All of City’s rights and remedies under this Design-Build Contract are cumulative and shall be in addition to
those rights and remedies available in law or in equity. Designation in the Contract Documents of certain
breaches as material shall not waive the City’s authority to designate other breaches as material nor limit City’s
right to terminate the Design-Build Contract, or prevent the City from terminating the Agreement for breaches
that are not material. City’s determination of whether there has been noncompliance with the Design-Build
Contract so as to warrant exercise by City of its rights and remedies for default under the Design-Build Contract,
shall be binding on all parties. No termination or action taken by City after such termination shall prejudice
any other rights or remedies of City provided by law or equity or by the Contract Documents upon such
termination; and City may proceed against DBE to recover all liquidated damages and Losses suffered by City.
15.2 Delays by Sureties.
Time being of the essence in the performance of the Work, if DBE’s surety fails to arrange for completion of
the Work in accordance with the Performance Bond, within seven (7) calendar days from the date of the notice
of termination, DBE’s surety shall be deemed to have waived its right to complete the Work under the Contract,
and City may immediately make arrangements for the completion of the Work through use of its own forces,
by hiring a replacement DBE, or by any other means that City determines advisable under the circumstances.
DBE and its surety shall be jointly and severally liable for any additional cost incurred by City to complete the
Work following termination. In addition, City shall have the right to use any materials, supplies, and equipment
belonging to DBE and located at the Worksite for the purposes of completing the remaining Work.
15.3 Damages to City.
15.3.1 For DBE's Default.
City will be entitled to recovery of all Losses under law or equity in the event of DBE’s default under the Contract
Documents.
15.3.2 Compensation for Losses.
In the event that City's Losses arise from DBE’s default under the Contract Documents, City shall be entitled to
deduct the cost of such Losses from monies otherwise payable to DBE. If the Losses incurred by City exceed
the amount payable, DBE shall be liable to City for the difference and shall promptly remit same to City.
15.4 Suspension by City
15.4.1 Suspension for Convenience.
City may, at any time and from time to time, without cause, ord er DBE, in writing, to suspend, delay, or
interrupt the Design-Build Services in whole or in part for such period of time, up to an aggregate of fifty percent
(50%) of the Contract Time. The order shall be specifically identified as a Suspension Order by City. Upon
receipt of a Suspension Order, DBE shall, at City’s expense, comply with the order and take all reasonable steps
to minimize costs allocable to the Design-Build Services covered by the Suspension Order. During the
Suspension or extension of the Suspension, if any, City shall either cancel the Suspension Order or, by Change
Order, delete the Design-Build Services covered by the Suspension Order. If a Suspension Order is canceled or
expires, DBE shall resume and continue with the Design-Build Services. A Change Order will be issued to cover
any adjustments of the Contract Sum or the Contract Time necessarily caused by such suspension. A
Suspension Order shall not be the exclusive method for City to stop the Design-Build Services.
15.4.2 Suspension for Cause.
In addition to all other remedies available to City, if DBE fails to perform or correct work in accordance with
the Contract Documents, City may immediately order the Design-Build Services, or any portion thereof,
suspended until the cause for the suspension has been eliminated to City’s satisfaction. DBE shall not be
DESIGN-BUILD 15 2021
CONTRACT
entitled to an increase in Contract Time or Contract Price for a suspension occasioned by DBE’s failure to comply
with the Contract Documents. City’s right to suspend the Design-Build Services shall not give rise to a duty to
suspend the Design-Build Services, and City’s failure to suspend the Design-Build Services shall not constitute
a defense to DBE’s failure to comply with the requirements of the Contract Documents.
15.5 Termination Without Cause.
City may, at its sole discretion and without cause, terminate this Design-Build Contract in part or in whole upon
written notice to DBE. Upon receipt of such notice, DBE shall, at City’s expense, comply with the notice and
take all reasonable steps to minimize costs to close out and demobilize. The compensation allowed under this
Paragraph 15.5 shall be the DBE’s sole and exclusive compensation for such termination and DBE waives any
claim for other compensation or Losses, including, but not limited to, loss of anticipated profits, loss of revenue,
lost opportunity, or other consequential, direct, indirect or incidental damages of any kind resulting from
termination without cause. Termination pursuant to this provision does not relieve DBE or its sureties from
any of their obligations for Losses arising from or related to the Design-Build Services performed by DBE.
15.5.1 Compensation.
Following such termination and within forty-five (45) Days after receipt of a billing from DBE seeking payment
of sums authorized by this Paragraph 15.5.1, City shall pay the following to DBE as DBE’s sole compensation for
performance of the Design-Build Services:
.1 For Services Performed. The amount of the Contract Sum allocable to the portion of the Design-Build
Services properly performed by DBE as of the date of termination, less sums previously paid to DBE.
.2 For Close-out Costs. If termination is effective after the Construction Services have commenced on
the site, reasonable costs of DBE and its Subcontractors:
(i) Demobilizing and
(ii) Administering the close-out of its participation in the Project (including, without limitation,
all billing and accounting functions, not including attorney or expert fees) for a period of no longer
than thirty (30) Days after receipt of the notice of termination.
.3 For Fabricated Items. Previously unpaid cost of any items delivered to the Project Site which were
fabricated for subsequent incorporation in the Work.
.4 Profit Allowance. An allowance for profit calculated as four percent (4%) of the sum of the above
items, provided DBE can prove a likelihood that it would have made a profit if the Design-Build Contract had
not been terminated.
.5 Emergency Termination. The compensation provided in this provision does not apply to termination
for emergency pursuant to Section 2.6 of the General Conditions.
15.5.2 Subcontractors.
DBE shall include provisions in all of its subcontracts, purchase orders and other contracts permitting
termination for convenience by DBE on terms that are consistent with this Design-Build Contract and that
afford no greater rights of recovery against DBE than are afforded to DBE against City under this Section.
DESIGN-BUILD 16 2021
CONTRACT
15.6 DBE’s Duties Upon Termination.
Upon receipt of a notice of termination for default or for convenience, DBE shall, unless the notice directs
otherwise, do the following:
(i) Immediately discontinue the Design-Build Services to the extent specified in the notice;
(ii) Place no further orders or subcontracts for materials, equipment, services or facilities, except as may
be necessary for completion of such portion of the Work that is not discontinued;
(iii) Provide to City a description in writing, no later than fifteen (15) days after receipt of the notice of
termination, of all subcontracts, purchase orders and contracts that are outstanding, including,
without limitation, the terms of the original price, any changes, payments, balance owing, the status
of the portion of the Design-Build Services covered and a copy of the subcontract, purchase order or
contract and any written changes, amendments or modifications thereto, togeth er with such other
information as City may determine necessary in order to decide whether to accept assignment of or
request DBE to terminate the subcontract, purchase order or contract;
(iv) Promptly assign to City those subcontracts, purchase orders or contracts, or portions thereof, that City
elects to accept by assignment and cancel, on the most favorable terms reasonably possible, all
subcontracts, purchase orders or contracts, or portions thereof, that City does not elect to accept by
assignment; and
(v) Thereafter do only such Design-Build Services as may be necessary to preserve and protect Design-
Build Services already in progress and to protect materials, plants, and equipment on the Project Site
or in transit thereto.
Upon termination, whether for cause or for convenience, the provisions of the Contract Documents remain in
effect as to any Claim, indemnity obligation, warranties, guarantees, submittals of As-Built Documents,
instructions, or manuals, or other such rights and obligations arising prior to the termination date.
SECTION 16 DBE'S RIGHTS AND REMEDIES.
16.1 DBE’s Remedies.
DBE may terminate this Design-Build Contract only upon the occurrence of one of the following:
16.1.1 For Work Stoppage.
The Work is stopped for sixty (60) consecutive Days, through no act or fault of DBE, any Subcontractor, or
any employee or agent of DBE or any Subcontractor, due to issuance of an order of a court or other public
authority other than City having jurisdiction or due to an act of government, such as a declaration of a national
emergency making material unavailable. This provision shall not apply to any work stoppage resulting from
the City’s issuance of a suspension notice issued either for cause or for con venience.
16.1.2 For City's Non-Payment.
If City does not pay DBE undisputed sums within ninety (90) Days after receipt of notice from DBE, DBE may
terminate the Design-Build Contract (30) days following a second notice to City of DBE’s intention to terminate
the Design-Build Contract.
16.2 Damages to DBE.
In the event of termination for cause by DBE, City shall pay DBE the sums provided for in Paragraph 15.5.1
above. DBE agrees to accept such sums as its sole and exclusive compensation and agrees to waive any claim
for other compensation or Losses, including, but not limited to, loss of anticipated profits, loss of revenue, lost
opportunity, or other consequential, direct, indirect and incidental damages, of any kind.
SECTION 17 ACCOUNTING RECORDS.
17.1 Financial Management and City Access.
DESIGN-BUILD 17 2021
CONTRACT
DBE shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial
management under this Design-Build Contract in accordance with generally accepted accounting principles and
practices. City and City's accountants during normal business hours, may inspect, audit and copy DBE's
records, books, estimates, take-offs, cost reports, ledgers, schedules, correspondence, instructions, drawings,
receipts, subcontracts, purchase orders, vouchers, memoranda and other data rela ting to this Project. DBE
shall retain these documents for a period of three (3) years after the later of (i) Final Payment or (ii) final
resolution of all Contract Disputes and other disputes, or (iii) for such longer period as may be required by law.
17.2 Compliance with City Requests.
DBE's compliance with any request by City pursuant to this Section 17 shall be a condition precedent to filing
or maintenance of any legal action or proceeding by DBE against City and to DBE's right to receive further
payments under the Contract Documents. City many enforce DBE’s obligation to provide access to City of its
business and other records referred to in Section 17.1 for inspection or copying by issuance of a writ or a
provisional or permanent mandatory injunction by a court of competent jurisdiction based on affidavits
submitted to such court, without the necessity of oral testimony.
SECTION 18 INDEPENDENT PARTIES.
Each party is acting in its independent capacity and not as agents, employees, partners, or joint ventures’ of the other
party. City, its officers or employees shall have no control over the conduct of DBE or its respective agents, employees,
subconsultants, or Subcontractors, except as herein set forth.
SECTION 19 NUISANCE.
DBE shall not maintain, commit, nor permit the maintenance or commission of any nuisance in connection in the
performance of services under this Design-Build Contract.
SECTION 20 PERMITS AND LICENSES.
Except as otherwise provided in the Special Provisions and Bridging Documents, The DBE shall provide, procure and pay
for all licenses, permits, and fees, required by the City or other government jurisdictions or agencies necessary to carry
out and complete the Design-Build Services. Payment of all costs and expenses for such licenses, permits, and fees shall
be included in one or more Proposal items. No other compensation shall be paid to the DBE for these items or for delays
caused by non-City inspectors or conditions set forth in the licenses or permits issued by other agencies.
SECTION 21 WAIVER.
A waiver by either party of any breach of any term, covenant, or condition contained herein shall not be deemed to be
a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein, whether of
the same or a different character.
DESIGN-BUILD 18 2021
CONTRACT
SECTION 22 GOVERNING LAW AND VENUE.
22.1 Governing Law and Venue.
This Design-Build Contract shall be construed in accordance with and governed by the laws of the State of California,
without regard to conflict of law provisions, and venue shall be in a court of competent jurisdiction in the County of
Santa Clara, California, and no other place.
22.2 Compliance with Laws.
DBE shall comply with all applicable federal and California laws and city laws, including, without limitation, ordinances
and resolutions, in the performance of work under this Design-Build Contract.
22.2.1 Palo Alto Minimum Wage Ordinance. DBE shall comply with all requirements of the Palo Alto
Municipal Code Chapter 4.62 (Citywide Minimum Wage), as it may be amended from time to time. In
particular, for any employee otherwise entitled to the State minimum wage, who performs at least two (2)
hours of work in a calendar week within the geographic boundaries of the City, DBE shall pay such employees
no less than the minimum wage set forth in Palo Alto Municipal Code section 4.62.030 for each hour worked
within the geographic boundaries of the City of Palo Alto. In addition, DBE shall post notices regarding the Palo
Alto Minimum Wage Ordinance in accordance with Palo Alto Municipal Code section 4.62.060.
SECTION 23 COMPLETE AGREEMENT.
This Agreement represents the entire and integrated agreement between the parties and supersedes all prior
negotiations, representations, and contracts, either written or oral. This Agreement may be amended only by a written
instrument, which is signed by the parties.
SECTION 24 SURVIVAL OF CONTRACT.
The provisions of the Design-Build Contract which by their nature survive termination or expiration of the Design-Build
Contract or Final Completion, including, without limitation, all warran ties, indemnities, payment obligations, and City’s
right to audit DBE’s books and records, shall remain in full force and effect after Final Completion or any termination or
expiration of the Design-Build Contract.
SECTION 25 PREVAILING WAGES.
This Project is not subject to prevailing wages and related requirements. DBE is not required to pay prevailing
wages and meet related requirements under the California Labor Code and California Code of Regulations in the
performance and implementation of the Project if the Contract:
(1) is not a public works contract;
(2) is for a public works construction project of $25,000 or less, per California Labor Code Sections 1782(d)(1),
1725.5(f) and 1773.3(j); or
(3) is for a public works alteration, demolition, repair, or maintenance project of $15,000 or less, , per
California Labor Code Sections 1782(d)(1), 1725.5(f) and 1773.3(j).
Or
This Project is subject to prevailing wages and related requirements as a “public works” under California Labor
Code Sections 1720 et seq. and related regulations. DBE is required to pay general prevailing wages as defined in
California Labor Code Section 1773.1 and Subchapter 3, Title 8 of the California Code of Regulations Section 16000 et
seq., as amended from time to time. Pursuant to Labor Code Section 1773, the City has obtained the general prevailing
rate of per diem wages and the general rate for holiday and overtime work in this locality for each craft, classification,
DESIGN-BUILD 19 2021
CONTRACT
or type of worker needed to execute the contract for this Project from the State of California Department of Industrial
Relations (“DIR”). Copies of these rates may be obtained at the Purchasing Department office. The general prevailing
wage rates are also available at the DIR, Division of Labor Statistics and Research, website (see e.g.
http://www.dir.ca.gov/DLSR/PWD/index.htm) as amended from time to time. DBE shall ensure that copies of the
general prevailing wage rates are posted at all Project job sites and shall pay the adopted prevailing wage rates as a
minimum. DBE shall comply with all applicable provisions of Division 2, Part 7, Chapter 1 of the California Labor Code
(Labor Code Section 1720 et seq.), including, but not limited to, Sections 1720, 1725.5, 1771, 1771.1, 1771.4, 1773.2,
1774, 1775, 1776, 1777.5, 1782, 1810, 1813 and 1815, and all applicable implementing regulations, including but not
limited to Subchapter 3, Title 8 of the California Code of Regulations Section 16000 et seq. (8 CCR Section 16000 et seq.),
as amended from time to time.
SECTION 26 NON APPROPRIATION.
This Agreement is subject to the fiscal provisions of the Charter of the City of Palo Alto and the Palo Alto Municipal Code.
This Agreement will terminate without any penalty (a) at the end of any fiscal year in the event that the City does not
appropriate funds for the following fiscal year for this event, or (b) at any time within a fiscal year in the event that funds
are only appropriated for a portion of the fiscal year and funds for this Design-Build Contract are no longer available.
This section shall take precedence in the event of a conflict with any other covenant, term, condition, or provision of
this Agreement.
SECTION 27 AUTHORITY.
The individuals executing this Agreement represent and warrant that they have the legal capacity and authority to do
so on behalf of their respective legal entities.
SECTION 28 COUNTERPARTS
This Agreement may be signed in multiple counterparts, which, when executed by all the parties, shall together
constitute a single binding agreement.
SECTION 29 SEVERABILITY.
In case a provision of this Design-Build Contract is held to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not be affected.
SECTION 30 STATUTORY AND REGULATORY REFERENCES.
With respect to any amendments to any statutes or regulations referenced in these Contract Documents, the reference
is deemed to be the version in effect on the date that the Contra ct was awarded by City, as may be subsequently
amended from time to time, unless otherwise required by law.
SECTION 31 WORKERS’ COMPENSATION CERTIFICATION.
Contractor shall secure the payment of workers’ compensation to its employees as provided in Labor Code Sections
1860 and 3700.
Pursuant to Labor Code Section 1861, by signing this Contract, DBE thereby certifies as follows:
DESIGN-BUILD 20 2021
CONTRACT
“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured
against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of
that code, and I will comply with such provisions before commencing the p erformance of the Work on this
Contract.”
SECTION 32 DIR REGISTRATION AND OTHER REQUIREMENTS.
32.1 General Notice to DBE.
City requires DBE and its listed Subcontractors to comply with all applicable requirements of the California Labor Code
including but not limited to Labor Code Sections 1720 through 1861, and all applicable related regulations, including but
not limited to Subchapter 3, Title 8 of the California Code of Regulations Section 16000 et seq., as amended from time
to time. Additional information regarding public works and prevailing wage requirements is available on the DIR web
site (see e.g. http://www.dir.ca.gov) as amended from time to time.
32.2 Labor Code section 1771.1(a).
City provides notice to DBE of the requirements of California Labor Code section 1771.1(a), which reads:
“A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements
of Section 4104 of the Public Contract Code, or engage in the performance of any contract for public work, as defined
in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a
violation of this section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the
Business and Professions Code or Section 10164 or 20103.5 of the Public Contract Code, provided the contactor is
registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded.”
32.3 DIR Registration Required.
City will not accept a bid proposal from or enter into this Design-Build Contract with DBE without proof that DBE and its
Subcontractors are registered with the California Department of Industrial Relations (“DIR”) to perform public work,
subject to limited exceptions.
32.4 Posting of Job Site Notices; Compliance Monitoring.
City gives notice to DBE and its Subcontractors that DBE is required to post all job site notices prescribed by law or
regulation and DBE is subject to compliance monitoring and enforcement by DIR.
32.5 Payroll Records.
Contractor shall furnish certified payroll records directly to the Labor Commissioner (DIR) in accordance with Subchapter
3, Title 8 of the California Code of Regulations Section 16461 (8 CCR Section 16461).
City requires DBE and its Subcontractors to comply with the requirements of Labor Code section 1776, including but
not limited to:
(i) Keep accurate payroll records, showing the name, address, social security number, work
classification, straight time and overtime hours worked each day and week, and the actual
per diem wages paid to each journeyman, apprentice, worker, or other employee employed
by, respectively, DBE and its Subcontractors, in connection with the Project.
DESIGN-BUILD 21 2021
CONTRACT
(ii) The payroll records shall be verified as true and correct and shall be certified and made
available for inspection at all reasonable hours at the p rincipal office of DBE and its
Subcontractors, respectively.
(iii) At the request of City, acting by its Project Manager, DBE and its Subcontractors shall make
the certified payroll records available for inspection or furnished upon request to the City’s
Project Manager within ten (10) days of receipt of City’s request.
City requests DBE and its Subcontractors to submit the certified payroll records
to the City’s Project Manager at the end of each week during the Project.
(iv) If the certified payroll records are not provided as required within the 10-day period, then
DBE and its Subcontractors shall be subject to a penalty of one hundred dollars ($100.00) per
calendar day, or portion thereof, for each worker, and City shall withhold the sum total of
penalties from the progress payment(s) then due and payable to DBE. This provision
supplements the provisions of Section 15 (City Rights and Remedies) hereof.
(v) Inform the City’s Project Manager of the location of DBE’s and its Subcontractors’ payroll
records (street address, city and county) at the commencement of the Project, and also
provide notice to the City’s Project Manager within five (5) business days of any change of
location of those payroll records.
32.6 Employment of Apprentices.
Contractor shall comply with the statutory requirements regarding employment of apprentices including without
limitation Labor Code Section 1777.5. The statutory provisions will be enforced for penalties for failure to pay prevailing
wages and for failure to comply with wage and hour laws.
IN WITNESS WHEREOF, the parties have caused this Design-Build Contract to be executed the date and year
first above written.
CITY OF PALO ALTO
____________________________
Purchasing Manager
City Manager
APPROVED AS TO FORM:
____________________________
Assistant/Deputy City Attorney
APPROVED:
____________________________
Public Works Director
JOHNSON CONTROLS FIRE PROTECTION LP
By:___________________________
Name:________________________
Title:__________________________
Date: _________________________
~
Design-Build Contract 22 2021
BOND FORMS
PERFORMANCE BOND
WHEREAS, the City Council of the City of Palo Alto, State of California (“City”) and Johnson Controls Fire
Protection LP (“Principal”) have entered into a Design-Build Contract dated April 19, 2021, and identified as Civic Center
Fire Life Safety Upgrades Project (“Agreement”), which is hereby referred to and made a part hereof whereby Principal
agrees to design and build certain designated public improvements; and
WHEREAS, Principal is required under the terms of said Agreement to furnish a surety bond f or 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 Five Hundred
Seventeen Thousand Two Hundred Eighty dollars ($517,280) for the Construction Services, 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 therefore, there shall be included
costs and reasonable expenses and fees, including reasonable attorney’s fees incurred by City in successfully enforcing
such obligations, all to be taxed as costs and included in any judgment rendered. Surety shall be liable for any liquidated
damages for which the Principal may be liable under its Agreement with the City, and such liquidated damages shall be
part of the obligations secured hereto, and in addition to the face amount specified, therefore.
The Surety hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of the
Agreement or to the work to be performed thereunder or the specifications accompanying the same, shall in any way
affect its obligations on this 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 Contract Documents. Surety hereby waives the
provisions of California Civil Code Section 2845 and 2849. The City is the principal beneficiary of this bond and has all
rights of a party hereto.
/ /
/ /
/ /
Design-Build Contract 23 2021
BOND FORMS
IN WITNESS WHEREOF, this instrument has been duly executed by the Principal Surety above named on
_______________, 20_____.
_______________ Phone Number: ______
Name of Surety
_________
Signature of Surety
By: Its: Typed or Printed Name Title
_________
Name of DBE/Principal
________
Signature of DBE/Principal
By: Its: Typed or Printed Name Title
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
STATE OF )
COUNTY OF )
On , before me, , a notary public in and for said County,
personally appeared , who proved to me on the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and
correct.
WITNESS my hand and official seal.
(Seal)
DESIGN-BUILD 24 2021
BOND FORMS
PAYMENT BOND
WHEREAS, the City Council of the City of Palo Alto, State of California (“City”) and Johnson Controls Fire
Protection LP (“Principal”), have entered into a Design-Build Contract dated April 19, 2021, and identified as Civic
Center Fire Life Safety Upgrades Project (“Agreement”), which is hereby referred to and made a part here of,
whereby Principal agrees to design and build 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 City to secure the claims to which reference is
made in Titles 1 and 3 (commencing with Section 8000) of Part 6 of Di vision 4 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 an admi tted
surety, under the Laws of the State of California, are held and firmly bound unto City in the penal sum of Five Hundred
Seventeen Thousand Two Hundred Eighty dollars ($517,280), this amount being not less than one hundred percent
of the total amount payable for the Construction Services by the terms of the Agreement per Civil Code section 9554,
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 9100 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 Principal and its 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 bond, the
Surety will pay reasonable attorney’s fees in an amount to be fixed by the court.
It is hereby expressly stipulated and agreed that this surety b ond shall inure to the benefit of any and all
persons, companies, and corporations entitled named in Section 9100 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, change order, addition, alteration, or
modification to the terms of the Agreement of the work to be performed thereunder or the Contract Documents
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 Contract Documents accompanying the same. Surety hereby waives
the provisions of California Civil Code Sections 2845 and 2849.
DESIGN-BUILD 25 2021
BOND FORMS
IN WITNESS WHEREOF, this instrument has been duly executed by the Surety and Principal above named
on ______________, 20___.
__ Phone Number: ______________
Name of Surety
__
Signature of Surety
By: Its: Typed or Printed Name Title
__
Name of DBE/Principal
Signature of DBE/Principal
By: Its: Typed or Printed Name Title
CERTIFICATE OF ACKNOWLEDGMENT
(Civil Code § 1189)
STATE OF )
COUNTY OF )
On , before me, , a notary public in and for said County,
personally appeared , who proved to me on the basis of satisfactory evidence to be
the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
DESIGN-BUILD 26 2021
CITY OF PALO ALTO
DESIGN-BUILD
GENERAL CONDITIONS
DESIGN-BUILD 27 2021
GENERAL CONDITIONS
TABLE OF CONTENTS
ARTICLE 1 – PRELIMINARY PROVISIONS ......................................................................................................... 30
1.1 DEFINITIONS .................................................................................................................................... 30
1.2 OWNERSHIP AND USE OF DOCUMENTS .......................................................................................... 36
1.3 INTERPRETATION OF CONTRACT DOCUMENTS .............................................................................. 36
ARTICLE 2 – CITY’S RIGHTS AND OBLIGATIONS ............................................................................................... 38
2.1 INFORMATION AND SERVICES PROVIDED BY CITY .......................................................................... 38
2.2 ACCESS TO PROJECT SITE ................................................................................................................. 38
2.3 CITY'S RIGHT TO STOP THE WORK ................................................................................................... 38
2.4 CITY’S RIGHT TO CARRY OUT THE WORK ......................................................................................... 38
2.5 ACCESS TO MUNICIPAL SERVICES CENTER ...................................................................................... 38
2.6 EMERGENCY TERMINATION OF CONTRACT .................................................................................... 39
ARTICLE 3 – DBT’S RIGHTS AND OBLIGATIONS ............................................................................................... 40
3.1 REVIEW OF THE SITE, CONTRACT DOCUMENTS AND FIELD CONDITIONS ...................................... 40
3.2 SUPERVISION AND CONSTRUCTION PROCEDURES ......................................................................... 41
3.3 RESPONSIBILITY FOR THE WORK ................................................................................................... 411
3.4 LABOR, WORKMANSHIP, MATERIALS AND MANUFACTURED ITEMS ............................................. 42
3.5 DBT'S WARRANTY ............................................................................................................................ 42
3.6 CONSTRUCTION METHODS AND PROCEDURES ............................................................................ 422
3.7 TAXES ........................................................................................................................................ …..433
3.8 LEGAL REQUIREMENTS .................................................................................................................. 433
3.9 PROJECT STAFF ................................................................................................................................ 43
3.10 SCHEDULES REQUIRED OF DBT ........................................................................................................ 43
3.11 DOCUMENTS AND SAMPLES AT PROJECT SITE ................................................................................ 45
3.12 SUBMITTALS .................................................................................................................................... 46
3.13 TRADE NAMES, SUBSTITUTIONS ...................................................................................................... 48
3.14 DAILY REPORTS BY DBT .................................................................................................................... 48
3.15 CUTTING AND PATCHING ................................................................................................................ 49
3.16 ACCESS TO THE WORK ..................................................................................................................... 49
3.17 ROYALTIES AND PATENTS ................................................................................................................ 49
3.18 PERMITS AND LICENSES ................................................................................................................... 49
3.19 DIFFERING SITE CONDITIONS........................................................................................................... 49
3.20 INSPECTIONS .................................................................................................................................... 50
DESIGN-BUILD 28 2021
3.21 STOP NOTICES .................................................................................................................................. 51
3.22 PARKING .......................................................................................................................................... 51
3.23 USE OF THE PROJECT SITE AND CLEAN UP ...................................................................................... 51
3.24 ENVIRONMENTAL CONTROLS .......................................................................................................... 52
3.25 TEMPORARY WATER, LIGHT AND POWER ....................................................................................... 58
3.26 CITY TRUCK ROUTE ORDINANCE...................................................................................................... 58
3.27 UNFAIR BUSINESS PRACTICE CLAIMS .............................................................................................. 58
3.28 EXISTING UTILITIES ......................................................................................................................... .58
ARTICLE 4 – ADMINISTRATION OF THE CONTRACT ......................................................................................... 59
4.1 CONTRACT ADMINISTRATION BY CITY, DESIGN CONSULTANT AND CONSTRUCTION
MANAGER ...................................................................................................................................... 59
4.2 CLAIMS ............................................................................................................................................. 60
4.3 RESOLUTION OF CONTRACT DISPUTES ............................................................................................ 64
ARTICLE 5 – SUBCONTRACTORS ..................................................................................................................... 67
5.1 DBT’S AWARD OF SUBCONTRACTS .................................................................................................. 67
5.2 SUBCONTRACTOR RELATIONS ......................................................................................................... 67
5.3 CONTINGENT ASSIGNMENT OF SUBCONTRACTS ............................................................................ 69
5.4 DBT AND SUBCONTRACTOR RESPONSIBILITY .................................................................................. 69
ARTICLE 6 – CONSTRUCTION BY CITY OR BY SEPARATE CONTRACTORS ........................................................... 69
6.1 CITY’S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS .................. 69
6.2 MUTUAL RESPONSIBILITY ................................................................................................................ 69
6.3 CITY’S RIGHT TO CLEAN UP .............................................................................................................. 70
ARTICLE 7 – CHANGES ................................................................................................................................... 70
7.1 CHANGES ........................................................................................................................................... 70
7.2 CHANGE ORDERS AND CHANGE ORDER REQUESTS .......................................................................... 72
7.3 FIELD ORDERS .................................................................................................................................... 76
7.4 DISPUTES REGARDING CHANGES .................................................................................................... 77
ARTICLE 8 – CONTRACT TIME ......................................................................................................................... 77
8.1 COMMENCEMENT OF THE WORK ................................................................................................... 77
8.2 PROGRESS AND COMPLETION ......................................................................................................... 77
8.3 CONSTRUCTION HOURS .................................................................................................................. 78
8.4 HOLIDAYS ......................................................................................................................................... 78
8.5 DELAY ............................................................................................................................................... 79
ARTICLE 9 – PAYMENTS AND COMPLETION ............................................................................................................. 91
9.1 SCHEDULE OF VALUES ..................................................................................................................... 81
DESIGN-BUILD 29 2021
9.2 PROGRESS PAYMENT ..................................................................................................................... 811
9.3 APPLICATION FOR PAYMENT ......................................................................................................... 822
9.4 CERTIFICATE FOR PAYMENT .......................................................................................................... 833
9.5 DEPOSIT OF SECURITIES IN LIEU OF RETENTION AND DEPOSIT OF RENTENTION INTO
ESCROW………..…………………………………………………………………………………………………………………………. 84
9.6 BENEFICIAL OCCUPANCY ............................................................................................................... 855
9.7 SUBSTANTIAL COMPLETION ............................................................................................................ 86
9.8 FINAL COMPLETION AND FINAL RETENTION ................................................................................... 86
ARTICLE 10 – PROTECTION OF PERSONS AND PROPERTY………………………………………………………………………………… 87
10.1 SAFETY PRECAUTIONS AND PROGRAMS ......................................................................................... 87
10.2 SAFETY OF PERSONS AND PROPERTY .............................................................................................. 88
10.3 EMERGENCIES .................................................................................................................................. 89
10.4 TRENCH SAFETY ............................................................................................................................... 89
ARTICLE 11 – INSURANCE AND BONDS . .................................................................................................... ...90
11.1 DBT'S INSURANCE ............................................................................................................................ 90
11.2 BOND REQUIREMENTS .................................................................................................................. 922
ARTICLE 12 – DEFECTIVE WORK ................................................................................................................... 933
12.1 UNCOVERING OF WORK ................................................................................................................ 933
12.2 CORRECTION OF DEFECTIVE WORK AND GUARANTEE TO REPAIR PERIOD .................................. 933
12.3 ACCEPTANCE OF DEFECTIVE WORK ............................................................................................... 944
ARTICLE 13 – STATUTORY REQUIREMENT .................................................................................................... 945
13.1 STATE LABOR LAW ......................................................................................................................... 955
13.2 WORKDAY ...................................................................................................................................... 955
ARTICLE 14 – JOB SITE NOTICES AND COMPLIANCE MONITORING ................................................................ 945
14.1 LABOR PROVISIONS ......................................................................................................................... 95
ATTACHMENTS:
A: FIELD ORDER
B: CHANGE ORDER REQUEST
C: CONTRACT CHANGE ORDER
DESIGN-BUILD 30 2021
ARTICLE 1 – PRELIMINARY PROVISIONS
1.1 DEFINITIONS
Terms appearing in the Contract Documents with initial capitalization shall have the meanings set forth
below:
1.1.1 ACCEPTANCE: The point after Final Completion when DBT has fully performed all of the
requirements of the Contract Documents and the Work is accepted by City in writing.
1.1.2 ADDENDA, ADDENDUM: Written or graphic information (including, without limitation,
Drawings or Special Provisions and technical specifications) prepared and issued by City Engineer prior to the
deadline for submission of Proposals, which modify or interpret the Request for Proposals by additions,
deletions, clarifications or corrections
1.1.3 AGREEMENT: The Design-Build Contract and all Contract Documents incorporated therein;
also referenced as the “Contract.”
1.1.4 ALLOWABLE COSTS: Actual and direct costs for performing Extra Work, including labor,
materials, supplies, and equipment, as further specified herein, in Article 7 – Changes.
1.1.5 ALLOWANCE: An amount included in the Request for Proposals that may or may not be
included in the Project, or for portions of the Design-Build Services where the amount or scope of the Design-
Build Services cannot be ascertained at the time of Proposal submissions.
1.1.6 ALTERNATE(S): Those portions of the Proposal setting forth the price(s) for optional or
alternative items not covered by the Base Proposal.
1.1.7 APPLICABLE CODE REQUIREMENTS: All applicable federal, state and municipal laws,
statutes, building codes, ordinances and regulations of governmental authorities having jurisdiction over the
Project, Work, Site, DBT or City.
1.1.8 APPLICATION FOR PAYMENT: An itemized application for payment prepared and
submitted by DBT for review and approval by City, which is prepared, submitted and accompanied by
supporting documentation in accordance with the requirements of the Contract Documents.
1.1.9 APPROVE, APPROVED or APPROVAL: Whether capitalized or not capitalized, shall mean,
unless otherwise stated, either an express approval contained in a written statement signed by the approving
authorized individual or deemed approved in accordance with the terms, conditions and procedures set forth
in the Contract Documents. All such approvals by or on behalf of City (including, without limitation,
approvals by Construction Manager) may be granted or withheld in the sole discretion of City.
1.1.10 AS-BUILT DOCUMENTS: The Project Drawings showing the condition of the Work as
actually built, including, without limitation, the locations of mechanical, electrical, plumbing, HVAC or similar
portions of the Work that are shown diagrammatically in the Contract Documents approved by City. These
documents must be maintained by DBT on the Site and delivered, along with an electronic version of the set,
to City upon Final Completion.
1.1.11 BASE PROPOSAL PRICE: The sum stated in the Proposal to provide the Design-Build
Services, exclusive of any Alternate(s).
DESIGN-BUILD 31 2021
1.1.12 BENEFICIAL OCCUPANCY: City's right, at its option and convenience, to occupy or
otherwise make use of all or any part of the Work prior to either Substantial Completion, Final Completion,
or Acceptance.
1.1.13 BRIDGING DOCUMENTS: The preliminary design or performance specifications and
drawings plans provided by the City’s Design Consultant and hereby made part of the Contract Documents.
1.1.14 CERTIFICATE FOR PAYMENT: The form for approval by the Construction Manager of DBT's
Application for Payment.
1.1.15 CHANGE: Additions, deletions, or other modifications to the Work, which may or may not
involve Extra Work and which may or may not involve an adjustment (increase or decrease) to the Contract
Sum or the Contract Time under the terms of the Contract Documents.
1.1.16 CHANGE ORDER: A duly authorized written instrument signed by City, or by City and DBT,
which operates to amend the scope of Work, and which may also amend the Contract Sum or the Contract
Time.
1.1.17 CHANGE ORDER REQUEST: DBT's written request for a Change Order.
1.1.18 CITY: City of Palo Alto, a California chartered municipal corporation.
1.1.19 CITY ENGINEER: City Engineer of City of Palo Alto or its designee.
1.1.20 CLAIM: A separate written demand by DBT for an extension of the Contract Time, and/or
for payment of money or damages arising from Work done by, or on behalf of DBT which has been prepared
and submitted in compliance with the Contract Documents.
1.1.21 CLIENT DEPARTMENT: Department or Division of City of Palo Alto identified as the end
user of the facilities.
1.1.22 COMPENSABLE DELAY: A Delay for which DBT may be entitled under the Contract
Documents to both an extension of the Contract Time and an adjustment of the Contract Sum for additional
compensation.
1.1.23 CONSTRUCTION DOCUMENTS: The final Design Documents prepared by DBT and
approved by City for construction of the Project.
1.1.24 CONSTRUCTION MANAGER: The City designated employee, project manager or an
individual, partnership, corporation, joint venture or other legal entity under contract with City to perform
construction management services for the Project. The term "Construction Manager" means Construction
Manager or Construction Manager's authorized representative.
1.1.25 CONSTRUCTION SCHEDULE: The Approved graphical representation of DBT’s as-planned
schedule for performance of the Work, and all Approved updates thereto, prepared in accordance with the
requirements of the Contract Documents and that provides for Substantial Completion of the Work within
the Contract Time.
1.1.26 CONSTRUCTION SERVICES: All of the Work required to construct the Project in accordance
with the Approved Construction Documents, including, but not limited to all services required to be
performed or customarily provided by a licensed general contractor, and excluding Design Services.
1.1.27 CONTRACT: The Design-Build Contract and all Contract Documents incorporated therein;
also referenced as the “Agreement”.
DESIGN-BUILD 32 2021
1.1.28 CONTRACT DISPUTE: A dispute arising out of or related to the Design-Build Contract or the
interpretation, enforcement or breach thereof, except as specified in Article 4 herein.
1.1.29 CONTRACT DISPUTE RESOLUTION PROCESS: The process of resolution of Contract
Disputes, and, upon election of City, disputes as set forth in Article 4 of these General Conditions.
1.1.30 CONTRACT DOCUMENTS: This term shall be as defined in Section 3 of the Design -Build
Contract.
1.1.31 CONTRACT SUM: The total amount of compensation stated in the Design -Build Contract
that is payable to DBT for the performance of the Work in accordance with the Contract Documents,
including adjustments made by Change Order.
1.1.32 CONTRACT TIME: The total number of days set forth in the Design -Build Contract within
which Substantial Completion of the Work must be achieved by DBT, including any adjustments of time
(increases or decreases) made by Change Order.
1.1.33 CONTRACTOR MARKUP: The markup that the DBT or Subcontractor may make on Extra
Work that it performs with its own forces. A fixed sum calculated as ten percent (10%) of applicable
Allowable Costs incurred by DBT or Subcontractor for performing Extra Work with its own forces, which is
deemed to be full compensation for DBT’s or Subcontractor’s indirect costs associated with Extra Work,
including, overhead, profit, and other indirect costs not included in the Allowable Costs. Contractor Markup
is separate from and does not include Subcontractor Markup as defined herein.
1.1.34 DAY: Whether capitalized or not, unless otherwise sp ecifically provided, means calendar
day, including weekends and legal holidays.
1.1.35 DEFECTIVE WORK: Work by DBT that is unsatisfactory, faulty, omitted, incomplete,
deficient or does not conform to the Applicable Code Requirements, the Contract Docume nts, the directives
of City or the requirements of any inspection, reference standard, test, code or approval specified in the
Contract Documents.
1.1.36 DELAY: Whether capitalized or not, includes any circumstances involving disruption,
hindrance, or interference in the performance of the Work within the Contract Time.
1.1.37 DELETED WORK: Work that is eliminated due to a Change in the Work requested by City
or DBT for which City is entitled to a deductive adjustment in the Contract Sum.
1.1.38 DESIGN-BUILD ENTITY or DBE (or DESIGN-BUILD TEAM or DBT): As defined on page 1,
paragraph 1, of this CONTRACT, the partnership, corporation or other legal entity that will provide both the
Design Services and the Construction Services for the Project under this Contract.
1.1.39 DESIGN-BUILD SERVICES: All of the Construction Services and the Design Services which
must be performed to completely design and construct the Project in accordance with the Contract
Documents.
1.1.40 DESIGN CONSULTANT: The individual(s) or firm(s) under contract with City to provide
preliminary design or engineering services for the Project and responsible for preparing the Bridging
Documents for the Project. The term "Design Consultant" means Design Consultant or Desi gn Consultant's
authorized representative, but does not mean the architect of record or engineer of record for the Project.
1.1.41 DESIGN DEVELOPMENT DOCUMENTS: The Design Documents prepared by DBT and
approved by City for preparation of the final Construction Documents.
DESIGN-BUILD 33 2021
1.1.42 DESIGN DOCUMENTS: The plans and specifications developed by DBT as part of the Design
Services, including, collectively, the Design Development Documents and Construction Documents.
1.1.43 DESIGN PROFESSIONAL: An architect, engineer, landscape architect or land surveyor
licensed and in good standing under the applicable provisions of the Business and Professions Code, who is
retained by DBT to provide Design Services for the Project.
1.1.44 DESIGN SERVICES: All services necessary to design the Project in conformance with the
Bridging Documents, including, but not limited to all services required to be provided by or under the
direction of a Design Professional, and excluding the Construction Services.
1.1.45 DRAWINGS: The graphic and pictorial portions of the Contract Documents showing the
design, location, and dimensions of the Work, generally including plans, elevations, subparagraphs, details,
schedules and diagrams. The term “Drawings” may be used interchangeably with "Plans."
1.1.46 ESCROW AGENT: A state or federally chartered bank in the State of California which holds
securities pursuant to an escrow agreement as set forth in Section 9.5 of these General Conditions.
1.1.47 EXCUSABLE DELAY: A Delay for which DBT may be entitled under the Contract Documents
to an extension of time, but not compensation.
1.1.48 EXISTING IMPROVEMENTS: All improvements located on the Site as of the date of
execution of the Design-Build Contract, whether above or below the surface of the ground, including but not
limited to existing buildings, utilities, infrastructure improvements and other facilities.
1.1.49 EXTRA WORK: Additional Work or costs due to a Change in the Work that is not described
in or reasonably inferable from the Contract Documents which may be the basis for an adjustment of the
Contract Sum and/or the Contract Price under the terms of the Contract Documents. Extra Work shall not
include additional Work or costs arising from DBT’s failure to perform any of its duties or obligations under
the Contract Documents.
1.1.50 FIELD ORDER: A written instrument signed by the City or its Construction Manager that
authorizes and directs performance of the Work described therein, and which may or may not include
adjustments (increase or decrease) to the Contract Sum and/or Contract Time.
1.1.51 FINAL COMPLETION: Full completion of all Work required by the Contract Documents,
including all punch list items, and submission of Record Documents, all to City’s satisfaction.
1.1.52 FINAL PAYMENT: Final payment of the Contract Sum following Final Completion, including
release of undisputed retention, less any amounts withheld or offset pursuant to the Contract Documents,
including, but not limited to, liquidated damages, unreleased stop notices, amounts subject to setoff, and up
to 150% of unresolved third-party claims for which DBT is required to indemnify City, and up to 150% of any
amounts in dispute as authorized by Public Contract Code Section 7107.
1.1.53 FRAGNET: A “Fragnet”, sometimes referred to as “time impact analysis,” is a
contemporaneous, fragmentary scheduling network, which graphically identifies the sequencing of all critical
and non-critical new activities and/or activity revisions affected by a Change Order or Delay, with logic ties
to all affected existing activities noted on the Construction Schedule. Its objective is to isolate and quantify
any time impact of a specific issue, determine and demonstrate any such specific Delay in re lation to past
and/or other current Delays and to provide a method for incorporating adjustments to the Contract Time
into the Construction Schedule.
DESIGN-BUILD 34 2021
1.1.54 GENERAL CONDITIONS: That portion of the Contract Documents relating to the
administrative procedures to be followed by DBT in carrying out the Work.
1.1.55 HAZARDOUS SUBSTANCES: Refers to, without limitation, the following: any chemical,
material or other substance defined as or included within the definition of hazardous substances, hazardous
materials, hazardous wastes, extremely hazardous substances, toxic substances, toxic material, restricted
hazardous waste, special waste, universal wastes or words of similar import under any Environmental Law.
1.1.56 LOSSES: Any and all losses, costs, liabilities, Claims, damages, liquidated damages, actions,
judgments, settlements, expenses, fines and penalties. "Losses" do not include attorneys' fees.
1.1.57 NOTICE OF AWARD: Written notice issued by City notifying DBT of issuance of the Design -
Build Contract.
1.1.58 NOTICE TO PROCEED: Written notice issued by City to DBT to begin the Design -Build
Services.
1.1.59 PERFORMANCE BOND, PAYMENT BOND: The performance and payment bonds to be
provided by DBT for the Construction Services.
1.1.60 PLANS: The graphic and pictorial portions of the Contract Documents showing the design,
location and dimensions of the Work, generally including plans, elevations, subparagraphs, details, schedules
and diagrams. The term “Plans” may be used interchangeably with "Drawings."
1.1.61 PRE-CONSTRUCTION MEETING: A meeting held with the Project Team prior to beginning
construction in order to review Contract Documents and clarify roles, responsibilities and authority of the
Project Team.
1.1.62 PROJECT: The total design and construction, of which the Design-Build Services provided
by DBT under the Contract Documents may be the whole or part and which may include Work performed by
City’s own forces or by Separate Contractors, of the public improvement(s) speci fied in the RFP.
1.1.63 PROJECT TEAM: Collectively, the DBT, City, Design Consultant, Construction Manager and
other consultants and Contractors providing professional and technical consultation for the design and
construction of the Project.
1.1.64 PROPOSAL: A written proposal submitted to City for the Project in response to City’s
Invitation for Proposals.
1.1.65 PROPOSER: An individual or entity that submits a Proposal.
1.1.66 RECORD DOCUMENTS: The term “Record Documents” refers to, collectively, the As-Built
Documents, warranties, guarantees and other documents required to be submitted by DBT as a condition of
Final Completion.
1.1.67 REQUEST FOR INFORMATION: A written instrument, prepared by DBT, which requests an
interpretation or clarification in the Design-Build Services or a response to a question concerning the Design-
Build Services. A Request for Information does not entitle DBT to an adjustment in the Contract Sum unless
it requires Extra Work and DBT requests and is entitled to such an adjustment in accordance with the
provisions of the Contract Documents.
DESIGN-BUILD 35 2021
1.1.68 REQUEST FOR INFORMATION RESPONSE: A written instrument, usually prepared by the
Design Consultant, which sets forth an interpretation or clarification or a response to a DBT question
concerning the Design-Build Services.
1.1.69 REQUEST FOR PROPOSALS or RFP: The City’s formal, written request for Design -Build
Services for the Project and the Contract Documents provided with or incorporated into the RFP.
1.1.70 SCHEDULE OF VALUES: A detailed, itemized breakdown of the Contract Sum, which
provides for a fair and reasonable allocation of the dollar values to each of the various parts of the Design -
Build Services.
1.1.71 SEPARATE CONTRACTOR: A person or firm under separate contract with City or other
entity performing other Work at the Site.
1.1.72 SITE: The physical site located within City where the Project is to be constructed, including
all adjacent areas for staging, storage, parking and temporary offices.
1.1.73 SPECIAL PROVISIONS: The portions of the Contract Documents consisting of additional
written requirements for materials, equipment, standards, skill, quality for the Design -Build Services. These
provisions may also contain amendments, deletions or additions to the General Conditions.
1.1.74 STATEMENT OF CONTRACT DISPUTE: The DBT’s written statement prepared in accordance
with Article 4 of these General Conditions required as a condition of its initiating the Contract Dispute
Resolution Process set forth in the Design-Build Contract.
1.1.75 SUBCONTRACTOR: A person or firm that has a contract with a DBT to perform a portion of
the Work. The term "Subcontractor" includes suppliers and vendors and is referred to throughout the
Contract Documents as if singular in number and means a Subcontractor or an authorized representative of
the Subcontractor. “Subcontractor” includes Subcontractors of any tier.
1.1.76 SUBCONTRACTOR MARKUP: The markup the Contractor may make on Extra Work
performed by a Subcontractor. A fixed sum calculated as fifteen percent (15%) of the Subcontractor’s
Allowable Costs incurred by Subcontractor for performing Extra Work, which is deemed to be full
compensation for DBT’s indirect costs for having the Extra Work performed by th e Subcontractor, including,
overhead, profit, and other indirect costs not included in Allowable Costs. Subcontractor Markup is made
on the Subcontractor’s incurred Allowable Costs only , which is separate from and does not include
Contractor Markup as defined herein, made by the Subcontractor.
1.1.77 SUBMITTALS: All shop drawings, samples, exemplars, product data and other submittals
required to be submitted to the City by DBT under the Contract Documents.
1.1.78 SUBSTANTIAL COMPLETION, SUBSTANTIALLY COMPLETE: As determined by City, the point
at which the Work is sufficiently complete to be occupied and utilized by City for its intended purpose, and
DBT has fulfilled its obligations under the Contract Documents, except for minor punch list items which do
not impair City's ability to so occupy and utilize the Project.
1.1.79 SUPERINTENDENT: The person appointed by DBT, subject to approval by City, to supervise
and coordinate DBT's own forces and Subcontractors in all aspects of the Construction Services.
DESIGN-BUILD 36 2021
1.1.80 UNEXCUSED DELAY: Any Delay in the path of activities that is critical to Substantial
Completion of the Work within the Contract Time and which Delay is not attributable to the City. An
Unexcused Delay shall not entitle DBT to either an extension of the Contract Time or an adjustment of the
Contract Sum. To the extent an Unexcused Delay is concurrent with an Excused Delay, the Excusable Delay
shall be conclusively deemed an Unexcused Delay.
1.1.81 WORK: All labor, materials, equipment, services, permits, fees, licenses and taxes, and all
other things necessary for DBT to perform its obligations and to fully design and construct the Project,
including, without limitation, any changes or additions requested by City, in accordance with the Contract
Documents and all Applicable Code Requirements.
1.2 OWNERSHIP AND USE OF DOCUMENTS
1.2.1 All originals, copies and electronic forms of Plans and Drawings, technical specifications,
(including, without limitation, the Bridging Documents) shall not be used by DBT, or any Subcontractor, for
any purpose other than providing the Design -Build Services for the Project. DBT and Subcontractors are
granted a limited license, revocable at will by City, to use and reproduce applicable portions of the Contract
Documents appropriate to and for providing Design-Build Services under the Contract Documents; provided
however, that such use shall not reduce City’s rights to use and ownership of the docum ents.
1.2.2 DBT shall keep on the Site of the Project, at all times, a complete set of City approved,
permitted Contract Documents for use by City.
1.2.3 Proposed Changes or refinements and clarifications to the Approved Construction
Documents will be provided to DBT in the form of reproducible prints. DBT shall, at its own expense and
without adjustment to the Contract Sum, reproduce and distribute such prints as are necessary for the
complete pricing of the Change and for performance of the Work.
1.2.4 DBT shall include a provision in all contracts with Subcontractors who perform Work on
the Project, protecting and preserving City’s rights to ownership and use of documents as set forth in this
Section 1.2.
1.3 INTERPRETATION OF CONTRACT DOCUMENTS
1.3.1 The Contract Documents are complementary and what is required by one shall be as
binding as if required by all.
1.3.2 In general, the Drawings will show dimensions, positions, and type of construction to be
completed; and the Special Provisions and technical specifications will define materials, quality and
standards. Any Work called for on the Drawings and not mentioned in the Special Provisions and technical
specifications, or vice versa, shall be performed as though fully set forth in both. Work not particularly
detailed, marked or specified, shall be the same as similar parts that are detailed, marked or specified.
1.3.3 Unless otherwise stated in the Contract Documents, technical word s and abbreviations
contained in the Contract Documents are used in accordance with commonly understood construction
industry meanings and non-technical words and abbreviations are used in accordance with their commonly
understood meanings.
DESIGN-BUILD 37 2021
1.3.4 The Contract Documents may omit modifying words such as "all" and "any," and articles
such as "the" and "an." If a modifier or an article is not included in one statement and appears in another it
is not intended to affect the interpretation of either statement. The use of the word "including," when
following any general statement, shall not be construed to limit such statement to specific items or matters
set forth immediately following such word or to similar items or matters whether or not non -limiting
language (such as "without limitation," "but not limited to," or words of similar import) is used with reference
thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within
the broadest possible scope of such general statement.
1.3.5 Whenever the context so requires, the use of the singular number shall be deemed to
include the plural and vice versa. Each gender shall be deemed to include the other gender, and each shall
include corporation, partnership, trust, or other legal entity whenever the context so requires. The captions
and headings of the various subdivisions of the Contract Documents are intended only as a matter of
reference and convenience and in no way define, limit, or prescribe the scope or inten t of the Contract
Documents or any subdivision thereof.
1.3.6 Any cross-references indicated between various subparagraphs or Drawings and
Documents are provided for the DBT’s convenience and shall not be all-inclusive.
1.3.7 Unless specifically noted to the contrary, all Work, equipment, casework, mechanical,
electrical and similar devices of whatever nature in the Contract Documents shall be completely installed,
hooked-up, made operational and made functional for the purpose such are intended, and al l costs therefore
are included in the Contract Sum.
1.3.8 Figured dimensions on scale Drawings and on full size Drawings shall govern over scale
Drawings without figured dimensions. The Drawings shall not be scaled to determine dimensions, and
(except in the case of diagrammatic Drawings) shall be calculated from figures shown on the Drawings.
Obvious discrepancies between scale and figured dimensions, unless marked "not to scale," must be brought
to the Construction Manager's attention before proceeding with the Work affected by the discrepancy.
1.3.9 If there is a conflict between any of the Contract Documents, DBT shall immediately bring
such conflict to the attention of City, whose decisions regarding such conflict shall be final and binding as to
the requirements of the Contract Documents. In the event of any conflicts between or among the Applicable
Code Requirements, the more stringent shall govern. In the event a conflict between any of the Contract
Documents is not resolved by the order of precedence established in the Contract Documents, the highest
standard of quality and skill, the most stringent requirements, and the most specific provision of the Contract
Documents shall govern and shall be required in the performance of the Design-Build Services.
1.3.10 The general character of the Design-Build Services is shown in the Contract Documents,
but Changes, modifications, clarifications and refinements may be made in details when needed to more
fully explain the Work. Provided that they are a logical evolution of the Bridging Documents that were
provided with the Request for Proposals or were reasonably inferable as necessary to provide a completed
and fully operational system, facility or structure, the same shall be considered part of the s cope of the
Design-Build Services to be provided without adjustment in the Contract Sum or the Contract Time.
1.3.11 Where on any Drawing a portion of the Work is drawn out and the remainder is indicated
in outline, the drawn-out parts shall apply also to all other like portions of the Work.
1.3.12 DBT will provide all necessary labor, equipment, transportation and incidentals required
to complete the Design-Build Services, even if the Contract Documents do not describe the Work in complete
detail.
DESIGN-BUILD 38 2021
1.3.13 Drawings and diagrams for mechanical, plumbing and electrical Work shall be considered
as diagrammatic only and shall not to be used for any structural guidance or physical layout, unless
specifically detailed or dimensioned, and DBT shall be responsible to provide any and all numbers and lengths
of mechanical, plumbing or electrical fittings, wire, conduit, connections, attachments or similar materials
needed to complete the Work, at no adjustment to the Contract Sum or Contract Time, whether or not they
exceed the numbers of such pieces or the lengths indicated by the Drawings.
1.3.14 City, in its sole discretion, will interpret the Contract Documents and make the
determination of whether or not DBT has fulfilled the requirements of the Contr act Documents. Such
interpretations and decisions of City shall be final and binding upon DBT.
ARTICLE 2 –CITY’S RIGHTS AND OBLIGATIONS
2.1 INFORMATION AND SERVICES PROVIDED BY CITY
2.1.1 Except as otherwise provided in the Special Provisions and Bridging Documents, DBT shall
obtain and pay for any permits, easements and governmental approvals, including City building and related
permits, for the use or occupancy of permanent structures required in connection with the Design -Build
Services.
2.1.2 Requests for Information Responses, Approvals and decisions required of City, Design
Consultant or Construction Manager under the Contract Documents shall be provided by the Construction
Manager to DBT upon request in a timely manner in order to avoid unreasonable Delay in the orderly and
sequential progress of the Design-Build Services. Notwithstanding the foregoing, failure by City, Design
Consultant, Construction Manager or City’s other consultants to provide Request for Information Response,
Approvals or decisions shall not be considered as a basis for DBT to seek adjustment in the Contract Time
until ten (10) Days after DBT has delivered written notice to City and to the person from whom such
information, Approval or decision is requested, including the following:
(i) The notice must include the following statement: “You are hereby notified that certain
information, approval or decision described herein has not been provided in accordance with Paragraph
2.1.2 of the General Conditions and if not provided within ten (10) Days from this notice may result in
additional cost or a request for time extension due to Delay.”
(ii) A detailed description of the information, approval or decision required, accompanied by
copies of DBT’s prior written request(s).
(iii) The date by which the information, approval or decision must be received so as to not
result in Delay to the Project, which shall in no event be earlier than ten (10) Days after the date of City’s
receipt of such notice.
2.1.3 City’s failure to provide the requested information, approval or decision within ten (10) days
following receipt of the above notification will not entitle DBT to an increase in the Contract Sum or Contract
Time unless the delay was unreasonable under the circumstances and DBT requests an increase in the
Contract Sum and/or Contract Time by submitting a Change Order Request in compliance with Article 7
herein. DBT will not be entitled to an increase in the Contract Time if the City’s delay in responding was 1)
reasonable under the circumstances, 2) caused by DBT’s failure to timely or properly submit its request for
information, or 3) the requested information was already provided or available to the DBT.
DESIGN-BUILD 39 2021
2.2 ACCESS TO PROJECT SITE
City will make available, no later than the commencement date designated in the current construction
Schedule accepted by City, the lands and facilities upon which the Work is to be performed, including such
access and other lands and facilities designated in the Contract Documents, for use by DBT.
2.3 CITY'S RIGHT TO STOP THE WORK
If DBT fails to correct Defective Work as required by Section 12.2 of these General Conditions, fails to perform
the Work in accordance with the Contract Documents, or violates any Applicable Code Requirement, City
may, without terminating the Contract, direct DBT to stop the Work, or any portion thereof, until the cause
for such order has been eliminated by DBT. DBT shall not be entitled to any adjustment of Contract Time or
Contract Sum as a result of any such order. City shall have no duty or responsibility to DBT or any other party
to exercise the right to stop the Work.
2.4 CITY’S RIGHT TO CARRY OUT THE WORK
If DBT fails to carry out the Work in accordance with the Contract Documents, fails to provide sufficient labor,
materials, equipment, tools and services to maintain the Construction Schedule, or otherwise fails to comply
with any requirement of the Contract Documents, and fails within the time specified in the Contract
Documents, after receipt of notice from City to promptly commence and thereafter diligently continue to
completion the correction of such failure, City may, without prejudice to other remedies City may have and
without terminating the Contract, correct such failure at DBT's expense. In such case, City shall be entitled
to deduct from payments then or thereafter due DBT the cost of correcting such failure, including
compensation for the additional services and expenses of City and City's consultants made necessary
thereby. If payments then or thereafter due DBT are not sufficient to cover such amounts, DBT shall pay the
additional amount to City.
2.5 ACCESS TO MUNICIPAL SERVICE CENTER
For all Projects which require DBT access to City’s Municipal Service Center (MSC), all DBTs shall provide and
all DBT’s personnel shall at all times display, in the form of badges, identification which shall include the
DBT’s name, the employee’s name, City’s Project Managers name and telephone number, and the name and
number of the Project being performed. Badge identification information shall correspond with information
contained in the bearer’s driver license or with other City approved identification. Any discrepancies, or
failure of DBT’s personnel to display proper identification, will in result their removal from the Project, or in
refusal of access to the MSC.
2.6 EMERGENCY TERMINATION OF CONTRACT
The Design-Build Contract is subject to termination as provided by Section 4410 and Section 4411 of the
Government Code of the State of California, being portions of the Emergency Termination of Public Contract
Act of 1949. In the event that the Design-Build Contract is terminated pursuant to said section,
compensation to the DBT shall be determined on the basis of the reasonable value of the Design -Build
Services completed, including preparatory work. As an exception of the foregoing, in the case of any fully
completed separate item or portion of the work for which there is a separate unit or contract price, the unit
or contract price shall control.
DESIGN-BUILD 40 2021
ARTICLE 3 – DBT’S RIGHTS AND OBLIGATIONS
3.1 REVIEW OF THE SITE, CONTRACT DOCUMENTS AND FIELD CONDITIONS
3.1.1 DBT warrants that it is satisfied as to character, quality, and quantities of surface and
subsurface materials or obstacles to be encountered insofar as reasonably ascertainable from a careful
inspection of the Site (including, without limitation, Existing Improvements on the Site) and from the
geological investigation reports, data and similar information, if any, made ava ilable to DBT by City. Any
failure by DBT to take such information or conditions into consideration will not relieve DBT from
responsibility for estimating the difficulty and cost of successfully completing the Work within the Contract
Sum and Contract Time.
3.1.2 DBT warrants and represents that it has carefully reviewed the Proposal and Contract
Documents prior to submitting its Proposal and executing the Contract. The DBT shall not be entitled, and
conclusively waives any right, to an adjustment in the Contract Sum or Contract Time for any additional or
unforeseen costs or Delay in the performance of Work due to conditions in Contract Documents constituting
errors, omissions, conflicts, ambiguities, lack of coordination or noncompliance with Applicable Code
Requirements, if such conditions were either discovered by DBT or could have been reasonably discovered
by DBT or its Subcontractors in the exercise of care and diligence in the review of the Contract Documents,
subject to the limitations of Public Contract Code Section 1104.
3.1.3 If DBT discovers what it perceives to be errors, omissions, conflicts, ambiguities, lack of
coordination or noncompliance with Applicable Code Requirements in the Contract Documents, then DBT
shall, within two (2) days of discovery, notify City or the Construction Manager in writing stating both of the
following:
(i) A detailed description of the conditions discovered.
(ii) DBT’s request for clarification, further details or correction of the Contract Documents.
Failure by DBT to provide written notice within the period of time required shall result in DBT waiving any
right to adjustment in the Contract Sum or Contract Time on account thereof.
3.1.4 If DBT believes it is entitled to an adjustment of the Contract Sum or Contract Time for
Extra Work based upon additional written or verbal instructions, information, or direction from City, Design
Consultant, or Construction Manager, it may submit a Change Order Request pursuant to Article 7 of the
General Conditions within ten (10) days of receipt of such instructions, information, or direction.
3.1.5 The DBT shall take field measurements of the existing field conditions verified. DBT shall
carefully compare the field conditions with the Contract Documents and other information known to DBT
before commencing the Work. DBT shall promptly report in writing to the Construction Manager any errors,
inconsistencies, or omissions the DBT discovers.
3.1.6 If DBT performs any portion of the Work which it knows, o r in the exercise of care and
diligence should have known, involves an error, omission, conflict, ambiguity, lack of coordination or
noncompliance with Applicable Code Requirements, without notifying and obtaining the written Approval
of City or before obtaining a written clarification, interpretation, instruction or decision from Construction
Manager, then any Work that is performed that is not in conformance with the clarifications, interpretation,
instruction or decision of City, Design Consultant or Construction Manager shall be removed or replaced and
DBT shall be responsible for the resultant Losses with no adjustment in the Contract Sum or Contract Time.
DESIGN-BUILD 41 2021
3.1.7 Existing improvements at the Site, for which no specific description is made on the
Drawings, but which could be reasonably assumed to interfere with the satisfactory completion of the Work,
shall be removed and disposed of by DBT, but only upon the specific direction and control of City. Without
limitation to the foregoing, and notwithstanding any information provided by City pertaining to groundwater
elevations and/or geological and soils conditions encountered, it is understood that it is DBT’s responsibility
to determine and allow for the elevation of groundwater, and the geological and soi ls conditions at the date
of performance of the Work.
3.2 SUPERVISION AND CONSTRUCTION PROCEDURES
3.2.1 DBT shall supervise, coordinate and direct the Construction Services using DBT's best ski ll
and attention and shall provide supervision sufficient to assure proper coordination and timely completion
of the Work. DBT and its subcontractors shall be solely responsible for and have control over construction
means, methods, techniques, safety, sequences, procedures and the coordination of all portions of the
Work.
3.2.2 DBT shall be responsible for the accurate layout of all portions of the Work and shall verify
all dimensions on the Drawings and shall report to City any discrepancies before pro ceeding with related
Work.
3.2.3 DBT may be assigned working space adjacent to the Site, and all field offices, materials and
equipment shall be kept within this area. DBT shall be responsible for leaving the space in as good condition
as DBT found it, or restoring it to the condition it was in prior to DBT commencing the Work.
3.2.4 DBT shall be responsible to City for acts and omissions of DBT's agents, employees, and
Subcontractors, and their respective agents and employees. Unless otherwise stated i n or a contrary
intention is reasonably inferable from the Contract Documents, references to DBT, when used in reference
to an obligation bearing upon performance of the Project, shall be deemed to include DBT’s Subcontractors.
3.2.5 DBT shall not be relieved of its obligation to perform the Work in accordance with the
Contract Documents by the act(s) or omission(s) by City in the administration of the Contract, or by tests,
inspections or Approvals required or performed by persons or firms other than DBT .
3.3 RESPONSIBILITY FOR THE WORK
3.3.1 DBT shall be in charge of and responsible for all portions of the Work of the Contract, and
shall be responsible for conforming such portions to the requirements of the Contract Documents and
readying such portions to receive subsequent Work.
3.3.2 DBT shall at all times maintain good discipline and order among its employees and
Subcontractors. DBT shall provide competent, fully qualified personnel to perform the Work, and shall
ensure that each Subcontractor engaged on the Site arranges the storage of materials and equipment and
performance of its Work so as to interfere as little as possible with Separate Contractors or other persons
engaged in work for City on the Site.
3.3.3 During the installation of Work, DBT shall insure that existing facilities, fences, and other
structures are all adequately protected. Upon Final Completion of all Work, all facilities that may have been
damaged shall be restored to a condition acceptable to City.
3.3.4 DBT is responsible for the security of the Site and all Work provided under the terms of this
Contract, as well as all Work provided by Separate Contractors that occurs on the Site at any time prior to
Final Completion and Acceptance of the Work by City.
DESIGN-BUILD 42 2021
3.4 LABOR, WORKMANSHIP, MATERIALS AND MANUFACTURED ITEMS
DBT shall provide and pay for all labor, materials, equipment, tools, construction equi pment and machinery,
water, heat, utilities, transportation and other facilities and services necessary for proper execution and
completion of the Work, whether temporary or permanent and whether or not incorporated or to be
incorporated in the Work. Unless otherwise provided in the Contract Documents or otherwise Approved by
the Construction Manager, all articles, equipment and materials incorporated in the Work shall be new, of
good quality, undamaged and not defective.
3.5 DBT'S WARRANTY
3.5.1 In addition to the guarantee to repair referenced in Article 12 and any specific warranty
mentioned in the Project specifications, DBT warrants to City that all materials and equipment used in or
incorporated into the Work will be of good quality, new and free of liens, Claims and security interests of
third parties; that all labor, installation, materials and equipment used or incorporated into the Work will be
of good quality and free from defects; and that the Work will conform with the requirements of the Contract
Documents and Applicable Code Requirements. If required by City, DBT shall furnish satisfactory evidence
as to the kind and quality of materials and equipment. Manufactured items installed in the Work and n ot
specifically covered in the Contract Documents are to be installed in strict accordance with manufacturers'
current printed instructions.
3.5.2 All materials to be incorporated in the Work shall be protected from damage during
delivery, storage, and handling, and after installation until Acceptance of the Work, and DBT shall, without
charge to City, be responsible for all damage to the materials or the Work due to DBT's failure to provide
such proper protection.
3.6 CONSTRUCTION METHODS AND PROCEDURES
3.6.1 The methods and procedures adopted by DBT and its subcontractors shall be such as to
secure a quality of Work satisfactory to City and to enable completion of the Work in the time agreed upo n.
If at any time such methods and procedures appear inadequate, City may order DBT to improve the character
or increase efficiency, and DBT shall conform to such order; but the failure of City to order such improvement
of methods or increase of efficiency will not relieve DBT from its obligation to perform the Work in
accordance with the Contract Documents or within the Contract Time.
3.6.2 If the Contract Documents give specific instructions concerning construction means,
methods, techniques, sequences or procedures, DBT shall be fully and solely responsible for the Site safety
for implementing such means, methods, techniques, sequences or procedures. If DBT determines that such
means, methods, techniques, sequences or procedures may not be safe, DBT shall give written notice to City
and shall not proceed with that portion of the Work without further written instruction by City.
DESIGN-BUILD 43 2021
3.7 TAXES
3.7.1 DBT and Subcontractors are responsible for paying all sales, consumer, business license,
use, income and payroll, and similar taxes for the Work or portions thereof provided by DBT and
Subcontractors.
3.7.2 All DBTs and Subcontractors for Design-Build Contracts equal to or greater than $5 million
dollars shall be required to obtain a sub permit with the California Board of Equalization for a direct allocation
of any and all applicable use tax to the City of Palo Alto, where the jobsite is located. DBT and applicable
Subcontractors shall apply for and comply with all of the c onditions of the sub permit pursuant to Section
260.020 of the California State Board of Equalization, Chapter 2, “Compliance Policy and Procedures Manual:
Registration, subchapter DBTs,” as may be amended from time to time.
3.8 LEGAL REQUIREMENTS
3.8.1 DBT shall perform the Work in accordance with all Applicable Code Requirements, even
though such requirements are not specifically referenced in the Contract Documents.
3.8.2 When the Work required by the Contract Documents is in conflict with any Applicable Code
Requirement, DBT shall notify Construction Manager and shall not proceed with the Work until Construction
Manager provides direction to the DBT.
3.9 PROJECT STAFF
3.9.1 DBT shall employ a complete and competent project staff for the duration of the
Construction Services, which shall include separate individuals designated to act as Superintendent, project
manager, project engineer(s) and administrative assistant(s), plus such other persons necessary to diligently
prosecute the Work. DBT shall not replace the designated Superintendent or project manager without a
minimum seven (7) Day written notice. Any Project staff member and any replacement member shall be
subject to the approval of City, which may be granted or withheld in its sole discretion. Upon notice from
City requesting replacement of any Project staff member who is unsatisfactory to City, DBT shall in a timely
manner, but in no event longer than three (3) Days after notification, replace such member with a competent
member satisfactory to City. Failure by DBT to comply with the provisions of this Paragraph shall entitle City,
at its option exercised in its sole discretion, to terminate the Contract or suspend the Work until DBT
complies with this Paragraph. All costs or damages associated with such termination or suspension shall be
borne by DBT, without adjustment in the Contract Sum or Contract Time.
3.9.2 The Superintendent shall be at the Site at all times during the performance of the Work.
The Superintendent shall represent DBT and communications given to and acknowledged by the
Superintendent shall be binding on DBT. Further, communications issued by or received from the
Superintendent shall be deemed as binding on DBT. The Superintendent must be able to read, write and
communicate fluently in English.
3.10 SCHEDULES REQUIRED OF DBT
DBT shall submit a preliminary Construction Schedule to City in a form approved by the Construction Manager at
the Pre-Construction Meeting.
3.10.2 Updated Construction Schedules shall be submitted in the form and frequency required
by the Construction Manager.
3.10.3 The Construction Schedule and Construction Schedule updates shall meet the following
requirements:
DESIGN-BUILD 44 2021
.1 Schedules must be suitable in format and clarity for monitoring progress of the Work
and shall utilize the critical path method of scheduling.
.2 Schedules must provide necessary data about the timing for City's decisions and
City-furnished items.
.3 Schedules must be in sufficient detail to demonstrate adequate planning and staffing for
the Work.
.4 Schedules must represent a practical plan to complete the Work within the Contract
Time. If at any time during the Work, any activity is not completed by its latest
scheduled completion date, DBT shall notify the Construction Manager within
five (5) Days of DBT's plans to reorganize the work force to return to the
schedule and prevent Delays on any other activity.
.5 An updated Construction Schedule shall be submitted with each progress payment
request, but no less frequently than monthly, and shall include all of the following :
(i) A written narrative report detailing the actual progress of the Work as of the
date of submission;
(ii) The expected progress of the Work as of such date according to the approved
Construction Schedule;
(iii) The reasons for any variance between the approved Construction Schedule and
the updated Construction Schedule; and
(iv) If required, DBT’s recovery plan for placing the Work back on Schedule, at
DBT’s expense.
Failure to timely comply with the above requirements may be grounds for rejection of a request for
extension of time.
3.10.4 DBT shall plan, develop, supervise, control and coordinate the performance of the Work
so the progress, sequence and timing of the Work conform to the current accepted Construction Schedule.
DBT shall continuously obtain from Subcontractors information and data about the planning for and progress
of the Work, the ordering and fabrication of materials, required Submittals, and the delivery of equipment,
shall coordinate and integrate such information and data in updated Construction Schedules and Record
Documents, and shall monitor the progress of the Work and the delivery of equipment. DBT shall act as the
expediter of potential and actual delays, interruptions, hindrances or disruptions for its own forces and those
forces of Subcontractors, regardless of tier. DBT shall cooperate with City in the development of the
Construction Schedule and updated Construction Schedules.
3.10.5 City's review, comments, requests for revisions, or acceptance of any schedule or
scheduling data shall not:
(i) Relieve DBT from its sole responsibility for the feasibility of the schedule and to
plan for, perform, and complete the Work within the Contract Time;
DESIGN-BUILD 45 2021
(ii) Transfer responsibility for any schedule from DBT to City; nor
(iii) Imply City’s agreement with any assumption upon which such schedule is based or any
matter underlying or contained in such schedule.
3.10.6 Failure of City to discover errors or omissions in Cons truction Schedules that it has
reviewed or Approved, or to inform DBT that DBT, Subcontractors, or others are behind schedule, or to direct
or enforce procedures for complying with the Construction Schedule, shall not relieve DBT from its sole
responsibility to perform and complete the Work within the Contract Time and shall not be a cause for an
adjustment of the Contract Time or the Contract Sum.
3.10.7 DBT shall cooperate with and coordinate its Construction Schedule with work of City and
City’s Separate Contractors.
3.11 DOCUMENTS AND SAMPLES AT PROJECT SITE
3.11.1 DBT shall maintain one (1) set of As-Built Documents at the Site, which shall be kept up to
date on a daily basis during the performance of the Work. All performed changes, deletions or additions in
the Work from that shown in the Contract Documents shall be recorded accurately and completely in the
Record Documents. Upon Final Completion and as a condition to Final Payment, each sheet of the As -Built
Documents and other Record Documents shall be signed and attested to by the DBT’s Superintendent as
being complete and accurate.
3.11.2 DBT shall, at all times during performance of the Work, also maintain the following at the
Site:
(i) The latest updated Construction Schedule approved by City;
(ii) Shop Drawings, product data, and samples; and
(iii) All other required Submittals.
At all times during the course of the Project, these documents shall be available to City, the Construction
Manager and the Design Consultant to audit, excerpt, or copy as they see fit. Upon Final Completion or
termination of the Design-Build Contract, these documents shall be delivered to City in the format requested
by the City.
3.11.3 It shall be the responsibility of DBT to maintain a current and complete record of all
Changes performed during the progress of the Pr oject construction. The record shall be in the form of a
complete set of prints of the As-Built Documents on which daily recordings are made by DBT, indicating in
detail and dimension each variation from the original set of Contract Documents for all of t he Work. At the
completion of construction, DBT shall, as a requirement of the Final Completion of the Work, certify that to
the best of its knowledge, the As-Built Documents are true and accurate, and that the indications thereon
represent all Changes performed during the construction of the Project. At Final Completion, the As-Built
and other Record Documents shall become the property of City.
3.11.4 DBT, in concert with the Design Consultant and the Construction Manager, shall review
DBT's As-Built Documents for conformance with all current Changes prior to presenting its monthly
Application For Payment. The monthly progress payment statement will not be accepted or processed by
City unless the As-Built Documents are current and complete, and Approved by City.
DESIGN-BUILD 46 2021
3.11.5 At Final Completion, the DBT shall provide the fully As-Built Documents to the City. These
As-Built Documents will become the permanent property of City at Final Completion. If the As -Built
Documents are prepared on a computer, then the revised computer files shall also be provided to City in the
file format specified by City.
3.12 SUBMITTALS
3.12.1 Submittals are not Contract Documents. Their purpose is to demonstrate, for those
portions of the Work for which Submittals are required, how DBT proposes to conform to the information
given and the design concept expressed in the Contract Documents. Prior to starting Work, DBT shall provide
to City an initial schedule for submission of the Submittals for which shop drawings are required by the
Contract Documents. For each required shop drawing, DBT shall provide to City the date for the drawing's
intended Submittal to the Design Consultant for review. The date required for its return to avoid Delay in
any activity beyond the scheduled start date shall also be given.
3.12.2 All shop drawings and other Submittals shall be provided at DBT's expense, and at the time
required by the Contract Documents or requested by the Construction Manager.
3.12.3 DBT shall review, approve, and submit to the Construction Manager, all Submittals
required by the Contract Documents to be submitted and reviewed by the Design Consultant. Submittals to
the Construction Manager without evidence thereon of DBT’s approval s hall be returned, without review,
for resubmission in accordance with these requirements. Submittals shall be provided within the time frame
specified in the Special Provisions and technical specifications in accordance with the Construction Schedule,
and in such sequence as to cause no Delay in the Work or in the activities of City or of Separate Contractors.
Submittals made by DBT which are not required by the Contract Documents, may be returned without action
by the Construction Manager or Design Consultant. Submittal to the Construction Manager and Design
Consultant must include a statement, in writing, identifying any deviations from the Contract Documents
required due to manufacturing or installation limitations contained in the Submittal.
3.12.4 All Submittals shall be submitted in two (2) sets, accompanied by letters of transmittal, and
addressed to the Construction Manager for review. Unless otherwise specified in the Contract Documents,
Submittals consisting of Drawings or Plans shall be in the form of six (6) copies. The Submittal must be
prepared and submitted in accordance with all applicable provisions in the Contract Documents. If the
Submittal involves a request for substitution of materials, the request shall be clearly identified on the
Submittal that it is a "Request for Substitution." Unless so clearly marked, Submittals shall not be considered
as a request for substitution. The Construction Manager shall return to DBT three (3) marked -up prints.
Submittals shall include all relevant catalog sheets, material lists, manufacturer’s brochures, technical
bulletins, specifications, diagrams, or product samples, necessary to describe a system, product, or item.
The letter of transmittal shall include a list of the accompanying documents and the numbers of the sheets
submitted. All sheets shall be marked with the name of the Project and the name of DBT, shall be numbered
consecutively, and shall be referenced to the sheets or paragraphs of the Contract Documents, referenced
by sheet or subparagraph affected. Submittals shall be combined for singular assemblies, items or materials.
3.12.5 No Work requiring a Submittal shall be performed by DBT until the Submittal has been
reviewed and approved by City, Construction Manager or Design Consultant, as appropriate, and the Design
Consultant has documented the exceptions noted on the Submittal. DBT shall allow twenty (20) Days for
review of timely and complete Submittals. Once the Submittal is returned to DBT by the Construction
Manager with a statement that it has been reviewed and no exceptions are taken or further action
requested, such Work shall be performed in accordance with the Submittal and the Contract Documents.
DESIGN-BUILD 47 2021
3.12.6 DBT's Submittals represent that DBT has determined or verified materials and field
measurements and conditions related thereto and that it has checked and coordinated the information
contained within such Submittals with the requirements of the Contract Documents and Submittals for
related Work.
3.12.7 If DBT discovers any conflicts, omissions or errors in Submittals, DBT shall notify the
Construction Manager and receive instruction before proceeding with the affected Work.
3.12.8 DBT shall remain solely responsible, notwithstanding City, Construction Manager or Design
Consultant’s review or approval of Submittals, for deviations (including, without limitation, those arising
from standard shop practice) from the Contract Documents, unless DBT has specifically informed City,
Construction Manager or Design Consultant in writing of such deviation at the time of transmitting the
Submittal and City, Construction Manager or Design Consultant has given written approval of such deviation.
No adjustment in the Contract Sum or Contract Time shall be permitted with respect to a ny such deviations
that are noted in writing by DBT and as to which City, Construction Manager or Design Consultant takes no
exception or approves.
3.12.9 After review of DBT's Submittals by City, Construction Manager or Design Consultant, as
appropriate, the Construction Manager will transmit to DBT one set of Submittals. If the Submittals are
found to be incomplete or incorrect, DBT shall resubmit after corrective action has been taken. DBT shall
reimburse City, or City may withhold from payments due D BT, sums owing by City for any fees charged by
City, Construction Manager or Design Consultant or City’s other consultants for more than two (2) reviews
of a Submittal, or for accelerated review in a shorter time than set forth in the approved Construction
Schedule, if requested by DBT or caused by late Submittals by DBT. The return of a Submittal due to failure
to comply with the Contract Documents or for correction or additional information shall be considered a
review.
3.12.10 Review of Submittals by City, Construction Manager or Design Consultant will be general
and for conformance with design intent, and shall not relieve DBT from the responsibility for proper fitting
and construction of the Work, nor from furnished materials and Work required by t he Contract which may
not be indicated on the reviewed Submittals.
3.12.11 Submittals shall be in English, be of good quality, and be of a size and scale to clearly show
all necessary details. Submittals shall show in detail the size, sections and dimen sions of all members; the
arrangement and construction of all connections, joints and other pertinent details; and all holes, straps and
other fittings required by other Separate Contractors for attaching their Work. When required by City,
Construction Manager or Design Consultant, engineering computations shall be submitted. DBT shall be
responsible for delivering duplicates of Submittals to all other persons whose Work is dependent thereon.
3.12.12 DBT shall, at all times, maintain at the Site a complete file of all City, Construction Manager
or Design Consultant-reviewed Submittals.
3.13 TRADE NAMES, SUBSTITUTIONS
3.13.1 Any request for substitution of “or equal” items by the DBT shall be made within 35 days
of award of the contract, unless otherwise specified in these Contract Documents, and shall be governed by
Public Contract Code Section 3400.
3.13.2 If City accepts for use in the Project a substitute material or process which in the opinion
of City, Construction Manager or Design Consultant is not the equal of that specified, a Change Order shall
be issued issuing a credit to City for the difference in value.
DESIGN-BUILD 48 2021
3.13.3 Substitutions by DBT that are incorporated into the Work without the prior review and
Approval by City, Construction Manager or Design Consultant in accordance with the requirements of the
Contract Documents shall be deemed to be Defective Work.
3.13.4 The specified completion time shall not be affected by any circumstance developing from
the substitution provisions of this Section.
3.14 DAILY REPORTS BY DBT
3.14.1 At the end of each working day, DBT shall submit a daily report to the Construction
Manager (on a form provided by or accepted by the Construction Manager) listing:
(i) Labor - Names of workers, classification, hourly rates and hours worked.
(ii) Material - Description and list of quantities of materials used.
(iii) Equipment - Type of equipment, size, identification number, and hours of operation,
including loading and transportation, if applicable.
(iv) Inspection and Testing Activities - Name, City or company and items involved.
(v) Areas of Work - The areas of the Site on which Work was performed and a detailed
description of the stage, status and progress of the Work in each such area at the
beginning and end of the day.
(vi) Accidents, Delays, Defective Work - Description in detail of any injuries to workers,
accidents, Delays, or Defective Work that were encountered.
(vii) Other Services and Expenditures - Description in such detail as City may require of other
services and expenditures.
3.14.2 Reports by Subcontractors that comply with the requirements of this Section 3.14 shall
also be submitted to the Construction Manager through DBT at the end of each working day.
3.14.3 Submission of daily reports by DBT and Subcontractors performing Work on the Site shall
be a condition precedent to DBT's right to payment under the Contract.
3.14.4 Facts, notice or information contained in daily reports of DBT or its Subcontractors,
whether known or not known to City or Construction Manager, shall under no circumstances be considered
evidence of compliance by DBT with any of the specific written notice requirements of the Contract
Documents.
3.15 CUTTING AND PATCHING
3.15.1 DBT shall do all cutting, fitting, or patching of the Work required to make all parts of the
Work join properly and to allow the Work to join the work of Separate Contractors shown in, or reasonably
implied by, the Contract Documents.
3.15.2 DBT shall not endanger the Work, the Project, Existing Improvements, or adjacent property
by cutting, digging, or otherwise. DBT shall not cut or alter the work of any Separate Contractor without the
prior written consent of City.
DESIGN-BUILD 49 2021
3.15.3 In all cases, cutting shall be performed under the supervision of competent workers skilled
in the applicable trade and shall cause the openings to be cut as small as possible to minimize unnecessary
damage.
3.16 ACCESS TO THE WORK
3.16.1 City, Construction Manager, Design Consultant, their consultants and other persons
authorized by City shall at all times have access to the Work wherever it is in preparation or progress. DBT
shall provide safe and proper facilities for such access and for inspection.
3.16.2 City may, at any time, and from time to time during the performance of the Work, enter
the Project for the purpose of installing any necessary other work by City labor or other contracts or for any
other purpose. DBT shall cooperate with City and not interfere with other work being done by or on behalf
of City.
3.17 ROYALTIES AND PATENTS
DBT shall pay all royalties and license fees required for the performance of the Work. DBT shall immediately
notify City if it learns of any circumstances that may constitute an infringement of patent rights and shall
defend and indemnify City and the members of the Project Team in accordance with the indemnity
requirements of the Design-Build Contract against Losses, liabilities, suits or Claims resulting from DBT's or
any Subcontractor's or infringement of patent rights.
3.18 PERMITS AND LICENSES
The DBT shall comply with all provisions of any permits necessary to accomplish the Work as specified in this
Contract. DBT shall obtain and be responsible for the cost of all permits and applications related to the
construction of the Project.
3.19 DIFFERING SITE CONDITIONS
3.19.1 Except as provided in this Section 3.19, DBT agrees to solely bear the risk, including any additional
costs and Delay of any and all concealed and unknown site conditions, without adjustment to the Contract
Sum or Contract Time. This provision is applicable if the Project involves digging trenches or other
excavations that extend deeper than four (4) feet below the surface. DBT shall promptly, and before the
following conditions are disturbed, provide written notice to City if the DBT finds any of the following
conditions:
.1 Material that DBT believes may be a hazardous waste, as defined in Section 25117 of the Health
and Safety Code, that is required to be removed to a Class I, Class II, or Class III disposal site in
accordance with the provisions of existing law.
.2 Subsurface or latent physical conditions at the Site differing from those indicated by information
about the Site made available to Proposers prior to the deadline for submitting Proposals.
.3 Unknown physical conditions at the Site of any unusual nature, differing materially different
from those ordinarily encountered and generally recognized as inherent in work of the character
provided for in the Contract Documents.
3.19.2 City shall promptly investigate any of the above the conditions and if City finds that the conditions
do materially so differ, or do involve hazardous waste, and cause a decrease or increase in DBT’s cost of, or
the time required for, performance of any part of the Work, shall issue a Change Order under the procedures
described in the Contract Documents. The City may, acting in its sole discretion, extend the applicable
deadline for submitting a Change Order Request when it is based upon differing conditions subject to Public
Contract Code Section 7104.
DESIGN-BUILD 50 2021
3.19.3 In the event that a dispute arises between the City and the DBT regarding any of the matters
specified in subsection 3.19.1, above, DBT shall not be excused from any scheduled completion date
provided for in the Contract Documents, but shall proceed with all Work to be performed under the Contract.
DBT shall retain any and all rights provided either by the Contract or by law which pertain to the resolution
of disputes between DBT and City.
3.20 INSPECTIONS
3.20.1 In order to allow for inspection by City and other agencies, or any inspection required
elsewhere in the Special Provisions and technical specifications, DBT shall notify City in writing three (3) Days
in advance of the permanent concealment of any materials or Work.
3.20.2 Whenever DBT desires to carry on the Construction Services of this Design-Build Contract
at hours other than those specifically required by the City or 8:00 AM to 6:00 PM, Monday through Friday or
from 9:00 AM to 5:00 PM on Saturdays, it shall request authorization in writing from City for such Work at
least twelve (12) Days in advance and, if approved to proceed, DBT agrees to pay the costs incurred by the
City to provide inspectors during these times and the costs incurred for the Construction Manager, Design
Consultant and/or other City consultants whose presence at the Site is necessary. City offices are closed on
alternate Fridays commencing January 12, 2001, and every other Frid ay thereafter. Inspections by City
Building Department may not be available on these days.
3.20.3 If any Work is concealed or performed without the prior notice specified above, then the
Work shall be subject to such tests or exposure as may be necessary to prove to City that the materials used
and the Work done are in conformity with the Contract Documents. All labor and equipment necessary for
exposing and testing shall be furnished by DBT at its expense. DBT shall replace, at its own expense and
without reimbursement by City, any materials or Work damaged by exposure and any faulty materials or
work evidenced by such exposure or testing, and shall be responsible for any Delay caused thereby.
3.20.4 When, in order to comply with the intent of the Contract Documents, inspection must be
made at the plant or mill of the manufacturer or fabricator of material or equipment, DBT shall notify City a
sufficient length of time in advance to allow for arrangements to be made for such inspection. If required
testing and/or inspection must be conducted at a location more than one hundred (100) miles from the Site,
DBT shall be responsible for the additional travel costs required for testing and/or inspection at such location.
3.20.5 Any inspection or approval by any representative or agent of City will not relieve DBT of
the responsibility of incorporating into the Work only those materials which conform to the Contract
Documents, and any nonconforming materials shall be removed from the Site whenever identified , at DBT’s
sole expense.
3.20.6 When DBT believes it has achieved either Substantial or Final Completion of the Work,
DBT shall notify City and the Construction Manager in writing and request a Substantial or Final Completion
inspection of the Work. City, Design Consultant and Construction Manager will make such inspection as soon
thereafter as possible.
DESIGN-BUILD 51 2021
3.21 STOP NOTICES
DBT must promptly pay its Subcontractors in accordance with the subcontract requirements and California
prompt payment statutes. If any stop notice or other claim is served, filed or recorded in connection with
the Work, City shall have the option, in its sole discretion, to permit DBT immediately and at its own expense
obtain a bond executed by a good and sufficient surety, in accordance with Civil Code section 9364, in a sum
equal to one hundred twenty-five percent (125%) of the amount of such stop notice or claim. Such bond
shall guarantee the payment of any amounts which the claimant may recover on the stop notice or claim,
together with the claimant’s costs of suit in any action to enforce such stop notice or claim if the claimant
recovers therein. This remedy shall be in addition to all other rights and remedies of City unde r the Contract
Documents and applicable law, including, without limitation, the right to withhold funds from sums due to
DBT. DBT shall timely notify City of DBT's receipt of any stop notice or other third -party claim, valid or
invalid, relating to the Contract Documents.
3.22 PARKING
DBT shall provide and maintain suitable parking areas, for use by all construction workers and others
performing work or furnishing services in connection with the Project, as required to avoid a ny need for
parking personal vehicles where they may interfere with public traffic, construction activities or public
parking. The Construction Manager shall approve the location of all off-site parking in the City.
3.23 USE OF THE PROJECT SITE AND CLEAN UP
3.23.1 DBT shall confine operations at the Site to areas permitted by Applicable Code
Requirements and the Contract Documents. DBT shall not encumber the Site with materials or equipment
so that Separate Contractors' work is hindered or impeded due to such encumbrances.
3.23.2 DBT shall, during performance of the Work, keep the Site and surrounding area free from
the accumulation of excess dirt, dust, waste materials, water and rubbish caused by DBT or any
Subcontractors. DBT shall continuously and daily remove all excess dirt, waste material, water and rubbish
caused by DBT and all tools, equipment, machinery and surplus materials from the Site and surrounding area
at end of each day. Adequate cleanup will be a condition for progress payments.
3.23.3 Personnel of DBT shall not occupy, live upon, or otherwise make use of the Site during any
time that Work is not being performed at the Site, except as otherwise provided in the Contract Docu ments.
3.23.4 Upon Final Completion of the Work, DBT shall remove all construction facilities,
appurtenances, tools, material and other articles from the Site. The entire area, including all fixed
equipment, floors, surfaces and hardware shall be cleaned and restored to their original condition in
accordance with the Special Provisions and technical specifications.
3.23.5 In addition to water sprinkling, temporary enclosures and anti -dust sweeping compounds
should be used to limit dust and dirt rising and to keep the Site clean.
3.23.6 Construction materials shall be neatly stacked by DBT when not in use. Loose materials,
whether on the Site or in transit, shall be covered to prevent dust. DBT shall promptly remove splattered
concrete, asphalt, oil, paint, corrosive liquids and cleaning solutions from the affected surfaces to prevent
marring or other damage to the Work.
3.23.7 Volatile wastes shall be properly stored in covered metal containers and removed daily.
All other trash receptacles shall be promptly emptied when full.
DESIGN-BUILD 52 2021
3.23.8 DBT shall promptly and legally transport and dispose of removed and demolished items
and waste materials not identified to be recycled or reused in compliance with local ordinances and anti -
pollution laws. No rubbish or waste materials shall be burned, buried, or otherwise disposed of on the Site.
3.23.9 The DBT shall provide sanitary facilities at the Site, which shall be of reasonable capacity,
properly maintained throughout the construction period, and obscured from public view to the greatest
practical extent. DBT shall require all personnel to use the sanitary facilities. Sanitary facilities shall be on a
portable trailer and shall be removed from the Site at the end of each workday. For se wer lining projects,
DBT shall provide additional sanitary facilities on a portable trailer to be used by the residents during lining
installation (one sanitary facility per each 30 meters [100 feet]). DBT shall remove the sanitary facilities as
soon as relief holes are cut and notices of completion are delivered.
3.24 ENVIRONMENTAL CONTROLS
Full compensation for conforming to the requirements of this Section shall be considered as included in the
prices paid for the various contract items of Work involved and no additional compensation will be
allowed.
3.24.1 AIR POLLUTION CONTROL. DBT shall comply with all air pollution control rules, regulations,
ordinances and statutes which apply to any work performed pu rsuant to the Contract, including rules
promulgated by the Bay Area Air Quality Management District, the California Department of Public Health
or any other applicable agency. In the absence of any applicable air pollution control rules, regulations,
ordinances or statutes governing solvents, all solvents, including but not limited to the solvent portions of
paint thinners, curing compounds, parts cleaners and degreasers and liquid asphalt used on the Project shall
comply with the applicable material requirements of the Bay Area Air Quality Management District. All
containers of paint thinner, curing compound parts cleaners and degreasers or liquid asphalt shall be labeled
to indicate that the contents fully comply with said requirements. Material to be di sposed of shall not be
disposed of onsite (i.e. used up inappropriately or burned). Compressed gases contained within cylinders or
aerosol cans shall never be released for any purpose other than that intended by the manufacturer.
.1 Mold. The DBT shall take steps to prevent mold from developing on the Site or being
released into the air and shall promptly decontaminate any areas of mold that develop.
.2 VOC’s. Only construction materials that emit low levels of volatile organic compounds
(VOC) shall be used within indoor areas. Adequate ventilation of packaged dry products
shall be used prior to installation. DBT is responsible to ventilate the building during the
application of wet products (e.g., paints, glues, sealants), which release their highest levels
of VOC's during the curing period immediately after the application. Also, wet products
shall be applied before installing materials that act as "sinks" such as carpets, fabric,
ceiling tiles, movable partitions, furniture, etc. in order to reduce the chance of the "sinks"
absorbing contaminants and slowly releasing them into the building over time.
.3 Off-Gassing. DBT is responsible for identifying specific materials that require more
complex ventilation to accelerate off-gassing. In addition to paints, glues and sealants,
those materials that generally require temporary ventilation include, without limi tation:
composite wood products, plastics, waterproofing, insulation, fireproofing, caulking,
acoustical ceilings, resilient flooring and wood preservatives.
DESIGN-BUILD 53 2021
.4 Barriers. Barriers shall be used to prevent the migration of airborne pollutants from areas
under construction and to mitigate any construction noise that may disrupt occupant
activities. If effective controls for pollution emissions cannot be practically implemented,
activities involving significant airborne pollutants shall be scheduled during off-hours at
DBT’s expense. The Site shall be ventilated with fresh outside air during and immediately
after the noxious activity.
.5 Exhaust. DBT shall install temporary exhaust systems in construction areas to prevent
contaminated air from entering the building's return-air system, including, without
limitation:
(i) Removing windows in a space.
(ii) Using available or dedicated exhaust systems (e.g., kitchen or toilet exhaust)
that are not tied into the building's overall return-air system.
.6 Treated wood waste (TWW). TWW is any wood treated with preserving chemicals that
protect the wood from insect attack or fungal decay (typically railroad ties, power poles,
or bollards) shall be managed by DBT to minimize dust generation. DBT shall never grind
TWW and shall be properly dispose TWW at a permitted TWW disposal facility. If DBT size-
reduces the TWW then DBT shall collect all dust generated for proper offsite disposal.
.7 Contaminated Soil Removal. Unless approved by the City, contaminated soils that are
being removed shall be loaded directly into truck trailers that shall transport the soils
directly to disposal facilities and not stockpiled onsite or elsewhere. If the City approves
the temporary stockpiling of soils onsite, then DBT shall cover the soil with visqueen (or
other suitable material) within 1 hour.
The building shall be flushed with full outdoor air for seven (7) Days prior to occupancy.
Full capacity of the HVAC system shall be used for at least 2.5 ACH (air changes per hour),
provided by temporary fans. During this time, the interiors shall be thoroughly cleaned,
the HVAC ducts vacuumed, and air and HVAC system filters replaced.
DESIGN-BUILD 54 2021
3.24.3 WATER POLLUTION CONTROL.
.1 DBT shall at a minimum use applicable Best Management Practices listed in the California
Stormwater Quality Association Construction Handbook
http://www.cabmphandbooks.com/Construction.asp to prevent the pollution of storm
drains and watercourses by discharges of materials other than uncontamina ted storm
water. Prohibited discharges include storm water runoff discharges that may threaten to
cause pollution, contamination or nuisance, sanitary waste, sediment and debris from
erosion and other substances resulting from construction activities. Sanitary wastes will
not be permitted to enter any storm drain or watercourse and must be routed to the
sanitary sewer system. No sediment, debris or construction materials will be permitted to
enter sanitary sewers.
.2 DBT shall provide effective and continuous control of water pollution, including Work in
small or multiple units, on an out of phase schedule or with modified construction
procedures. DBT shall determine which methods are most effective in achieving control of
water pollution as a result of DBT's operations. DBT shall coordinate water pollution
control work with all other Work performed by DBT and Separate Contractors.
.3 Before starting any Work on the Project, DBT shall submit to the Construction Manager for
acceptance a Storm Water Pollution Prevention Plan (SWPPP) for effective control of storm
water pollution. Such plan shall show the schedule and detailed description for the storm
water pollution prevention and erosion control work or practices included in the Design -
Build Contract and for all storm water pollution control measures which DBT proposes to
employ in connection with construction of the Project to minimize the effects of their
operations upon storm drains, adjacent streams, and other bodies of water. DBT shall not
perform any clearing and grubbing or earthwork on the Project, other than that specifically
authorized in writing by the Construction Manager, until such SWPPP has been approved
by a City representative or the Construction Manager. DBT shall revise and bring up to date
said SWPPP at any time the Construction Manager makes written request for such
revisions.
.4 City shall not be liable to DBT for failure to accept all or any portion of any originally
submitted or revised SWPPP, or for any Delays to the Work due to D BT's failure to submit
an acceptable SWPPP. DBT assumes sole responsibility for all costs associated with
treatment of storm water polluted as a result of DBT’s Site activities, whether treatment is
initiated by DBT or City.
.5 DBT may request the Construction Manager to waive the requirement for submission of a
written SWPPP when the nature of DBT's operation is such that pollutant discharge or soil
erosion is not likely to occur. Waiver of this requirement will not relieve DBT from
responsibility for compliance with the other provisions of this Section. Waiver of the
requirement for a written SWPPP will not preclude City requiring submittal of a SWPPP at
a later time if the Construction Manager deems it necessary because of the effect of DBT's
operations.
.6 Where erosion damage which will cause storm water pollution is probable due to the
nature of the material or the season of the year, DBT's operation shall be so scheduled that
permanent erosion control features will be installed concurrently with or immediately
following grading operations.
.7 All storm water pollution control work required elsewhere in the Contract Documents
which may be accomplished under the various contract items of Work will be measured
and paid for as provided in said items of Work elsewhere in these Contract Documents.
DESIGN-BUILD 55 2021
3.24.4 URBAN RUNOFF. At a minimum, the following specific Best Management Practices which
address the potential pollution impacts of urban runoff shall apply to all projects undergoing construction in
City. The Best Management Practices listed below (in addition to those listed in the technical specifications)
are required by City, and shall apply at the time of demolition of an existing structure or commencement of
construction until receipt of a certificate of occupancy or certificate of completion:
.1 Sediment and construction waste from construction sites and parking areas shall not
leave the Site.
.2 Any sediments or other construction materials which are tracked off the Site shall be
removed the same day. Straw wattles or another temporary sediment barrier shall be
installed around the perimeter of the Site to prevent the sediment from leaving the Site.
.3 On an emergency basis only, plastic covering may be utilized to prevent erosion of an
otherwise unprotected area, along with runoff devices to intercept and safely convey
the runoff.
.4 Excavated soil shall be located on the Site in a manner that eliminates the possibility of
sediment running into the street, storm drains, water bodies, or adjoining properties.
Material stockpiles shall be covered within 1 hour of stockpiling the materi al until the
material is either used or removed.
.5 No washing of construction vehicles shall be allowed on or adjacent to the Site.
.6 Drainage controls shall be utilized as needed, depending on the extent of proposed
grading and topography of the Site, including, but not limited to the following: (i)
detention ponds or sedimentation ponds; and (ii) dikes, berms or ditches; and (iii) down
drains, chutes or flumes.
3.24.5 STORM WATER POLLUTION PREVENTION DURING ROADWORK. To avoid storm water
pollution, DBT shall plan roadwork and pavement construction as follows:
.1 Apply concrete, asphalt, and seal coat during dry weather to prevent contaminants from
contacting storm water runoff.
.2 Cover storm drain inlets and manholes when paving or applying seal coat, slurry seal, fog
seal, etc.
.3 Always park paving machines over drip pans or absorbent materials.
.4 When making saw-cuts in pavement, use as little water as possible. Cover each catch
basin completely with filter fabric during the sawing operation. Shovel or vacuum the
slurry residue from the pavement and remove from the Site.
3.24.6 STORMWATER POLLUTION. To avoid stormwater pollution, DBT shall plan roadwork and
pavement construction as follows:
.1 Apply concrete, asphalt, and seal coat during dry weather to prevent contaminants from
contacting stormwater runoff.
.2 Cover storm drain inlets and personnel access holes when paving or applying seal coat,
slurry seal, fog seal, etc.
DESIGN-BUILD 56 2021
.3 Always park paving machines over drip pans or absorbent materials, since they tend to
drip continuously.
.4 When making saw-cuts in pavement, use as little water as possible. Cover each catch
basin completely with filter fabric during the sawing operation and contain the slurry by
placing straw bales, sand bags, or gravel dams around the catch basin. After the liquid
drains or evaporates, shovel or vacuum the slurry residue from the pavement or gutter
and remove from the Site.
3.24.7 DRAINAGE CONTROL. DBT shall provide for the drainage of storm water and such water as
may be applied or discharged on the Site in performance of the Work. Drainage facilities shall be adequate
to prevent damage to the Work, Site and adjacent property. Also drainage facilities shall be construc ted to
minimize the potential pollution to the ocean.
Existing drainage channels and conduits shall be cleaned, enlarged or supplemented as necessary
to carry all increased runoff attributable to DBT's operations. Dikes shall be constructed as necessary to
divert increased runoff from entering adjacent property (except in natural channels), to protect City's private
property and utility owner's facilities and the Work, and to direct water to drainage channels or conduits.
Retention of drainage on the Site shall be provided as necessary to prevent downstream flooding.
3.24.8 DUST CONTROL. As elsewhere provided herein, the DBT shall be responsible for all dust
alleviation and control measures necessary and required for the public safety and convenience during the
life of the contract. The DBT shall use reclaimed water to control dust from unpaved surfaces as needed on
a daily basis or as directed by the Construction Manager. The water shall be applied at a limited rate so as
to avoid the creation of runoff from the site. The DBT shall not use water to flush down paved or impervious
surfaces as a means of dust control. Paved or impervious surfaces shall be swept with a street sweeper as
needed to control dust on the site. Compensation for water applied as alleviation and/or prevention of dust
nuisance and street sweeping shall be considered as included in the prices paid for the various contract items
of work and no additional allowance will be made therefore.
3.24.9 SPECIAL HAZARDOUS SUBSTANCES AND PROCESSES. DBT shall comply with the provisions
of all applicable hazardous materials Standards including but not limited to California Code of Regulations
(CCR) Title 8, Chapter 4, Group 16 (Cal OSHA Control of Hazardous Substances), CCR Title 22, Division 4.5,
(hazardous waste management standards), California Health & Safety Code Division 20, Section 6.5
(hazardous waste control), California Fire Code, Code of Federal Regulations (CFR) 49 (DOT regulations), CFR
40, Part 60 (U.S. hazardous waste standards) and applicable sections of the Palo Alto Municipal Code. DBT
shall at all times maintain an inventory of hazardous materials stored onsite and all applicable Material Safety
Data Sheets (MSDSs) available for review by the City.
For City-generated hazardous waste removal, the City will take full generator status for the
hazardous wastes as described under CCR 22. The City will obtain any EPA Identification numbers for the
project and will sign each manifest as the generator before the mat erial is transported. DBT shall fully
manage the hazardous wastes for the City including the removing, storing, transporting and disposing of the
hazardous wastes. For construction activities that remove existing hazardous wastes, such as, asbestos
removal, contaminated soil removal, lead paint removal or other contamination abatement projects, DBT
shall develop a hazardous materials management plan (HMMP). The HMMP shall contain sufficient
information that shall demonstrate how the DBT will remove, secure and store, transport to a permitted
disposal facility. DBT shall submit the HMMP to the City for approval. At a minimum, the HMMP shall
include:
• Project map that shall show hazardous waste removal areas, storage areas (including all
fencing, gates, locks, structures etc;
• Hazardous waste expected inventory including quantities and types of wastes;
• Security program – how the DBT will keep hazardous materials secure from public
contact;
DESIGN-BUILD 57 2021
• Monitoring and inspection program;
• Inventory of emergency equipment onsite;
• Transportation Plan includes how the DBT plans to package and transport the
hazardous wastes;
• Disposal facility name and location;
• Any other information that would reasonably describe DBT hazardous waste
removal, storage and disposal plans.
City has the sole right to reject the hazardous waste transporter and/or disposal facility from
DBT’s consideration.
Hazardous wastes that are generated from DBT’s activities while completing the project (i.e.
equipment maintenance fluids, empty oil or solvent drums, etc. shall be the sole responsibility of the DBT who is the
generator of the wastes under the Hazardous Waste Generator Regulations CCR Title 22. Wastes must be handled,
recycled or disposed of in the United States.
3.24.10 ENVIRONMENTAL PURCHASING POLICY. The DBT shall comply with the City of Palo Alto’s
Environmental Purchasing Policy, as amended from time to time. A copy is available at the City’s Purchasing Division.
3.24.11 ZERO WASTE REQUIREMENTS. The DBT shall comply with waste reduction, reuse,
recycling and disposal requirements of the City’s Zero Waste Program. Zero Waste best practices include first
minimizing and reducing waste; second, reusing waste and third, recycling or composting waste. In par ticular, DBT
shall comply with the following zero waste requirements:
• All printed materials provided by DBT to City generated from a personal computer and
printer including but not limited to, proposals, quotes, invoices, reports, and public
education materials, shall be double-sided and printed on a minimum of 30% or greater
post-consumer content paper, unless otherwise approved by the City’s Project Manager.
Any submitted materials printed by a professional printing company shall be a minimum
of 30% or greater post-consumer material and printed with vegetable based inks.
• Goods purchased by DBT on behalf of the City shall be purchased in accordance with the
City’s Environmental Purchasing Policy including but not limited to Extended Producer
Responsibility requirements for products and packaging. A copy of this policy is on file at
the Purchasing Office.
• Reusable/returnable pallets shall be taken back by the DBT, at no additional cost to the
City, for reuse or recycling. DBT shall provide documentation fro m the facility accepting
the pallets to verify that pallets are not being disposed.
3.24.12 SOUND CONTROL.
.1 DBT shall comply with the City’s Noise Ordinance set forth in Chapter 9.10 of the Palo Alto
Municipal Code, except as modified in the Special Provisions and technical specifications.
Copies of the Noise Ordinance are available in the Purchasing Division.
.2 Each internal combustion engine used for any purpose on the Site or otherwise within the
City of Palo Alto shall be equipped with a muffler of a type recommended by the
manufacturer. No internal combustion engine shall be operated on the Project without
said muffler. This requirement in no way relieves DBT from responsibility for complying
with local ordinances regulating noise level.
.3 The noise level requirement shall apply to all equipment on the Work or related to the job,
including but not limited to trucks, transit mixers or transient equipment that may or may
not be owned by DBT. The use of loud sound signals shall be avoided in favor of light
warnings except those required by safety laws for the protection of personnel.
DESIGN-BUILD 58 2021
.4 Prior to starting construction, all equipment to be used on the Project shall be inspected
and tested for compliance with the requirements of this Project. Sound blankets or other
sound mitigation equipment approved by the Construction Manager shall be required to
bring equipment into compliance with the requirements of this Project.
3.25 TEMPORARY WATER, LIGHT AND POWER
Water for any purpose shall be obtained by DBT, at its expense, from City. DBT is to contact the Construction
Manager for a phone number and contact person. In no case may DBT obtain water from unmetered fire
hydrants. The costs of obtaining water shall be included in the prices paid for the various contract items of
work included and no additional compensation will be allowed therefore, unless otherwise specified in the
Contract Documents. The City imposes a penalty for taking water from an unmetered fire hydrant. The
penalty shall be deducted from the payment due DBT. DBT shall purchase power from the City, at DBT’s
expense.
3.26 CITY TRUCK ROUTE ORDINANCE
The DBT and any Subcontractors or suppliers shall at all times comply with the requirements of the City of
Palo Alto Truck Route Ordinance set forth in Chapter 10.48 of the Palo Alto Municipal Code.
3.27 UNFAIR BUSINESS PRACTICES CLAIMS
DBT offers and agrees to assign to City all rights, title, and interest in and to all causes of action it may have
under Section 4 of the Clayton Act (15 U.S.C. Sec. 15), or under the Cartwright Act (Chapter 2 (commencing
with Section 16700) of Part 2 of Division 7 of the Business and Professions Code) arising from purchases of
goods, services, or materials pursuant to the Contract Documents. This assignment shall be made and
become effective at the time City tenders Final Payment to DBT, without further acknowledgment by the
parties. DBT shall incorporate this provision in all Subcontractor contracts.
3.28 EXISTING UTILITIES
3.28.1 Prior to the start of any grinding or any excavation, the DBT shall be res ponsible for
notifying Underground Services Alert (USA) 800-642-2444 at least 5 days prior to beginning underground
work so that existing utilities can be marked in the field. The DBT is responsible for the location of all utilities,
both public and private. DBT shall give specific address for grinding or excavation location. Each location
shall be marked by the DBT in the field with white paint.
3.28.2 The DBT shall acknowledge that the marking of underground utilities is only approximate,
and he shall take all necessary precautions to avoid damaging these utilities.
3.28.3 All Underground Services Alert marking shall be removed by the DBT. Any utilities
damaged or altered in any way during the performance of the work under this contract shall be promptly
reported to the Engineer, and shall be restored to their original condition at the DBT's expense.
3.28.4 If the DBT comes into contact with any existing utilities during his operations, he shall notify
the Engineer before proceeding with the work involved.
3.28.5 Pursuant to Government Code Section 4215, if, during the performance of the Work, DBT
discovers utility facilities not identified by City in the Contract Documents, DBT shall immediately provide
written notice to City and the utility. City assumes responsibility for the timely removal, relocation, or
protection of existing main or trunk line utility facilities located on the Project site, if such utilities are not
identified in the Contract Documents. DBT shall be compensated in accordance wit h the provisions of the
Contract Documents for the costs of locating, repairing damage not due to DBT’s failure to exercise
reasonable care, and removing or relocating such utility facilities not indicated in the plans or specifications
with reasonable accuracy and for equipment on the Project necessarily idled during such work. DBT shall
not be assessed liquidated damages for delay in completion of the Work, to the extent such delay was caused
by City’s failure to provide for removal or relocation of such utility facilities.
DESIGN-BUILD 59 2021
ARTICLE 4 – ADMINISTRATION OF THE CONTRACT
4.1 CONTRACT ADMINISTRATION BY CITY, DESIGN CONSULTANT AND CONSTRUCTION MANAGER
4.1.1 City and the Construction Manager will provide administration of the Construction
Contract as provided in the Contract Documents.
4.1.2 No actions taken by City, Construction Manager or Design Consultant shall relieve
DBT of its obligations described in the Contract Documents.
4.1.3 The Construction Manager will be present on the Site during the performance of the
Work primarily for the purposes of providing administration, inspection and ex pediting communications
between City, Design Consultant and DBT.
4.1.4 Neither City, Design Consultant nor Construction Manager will have control over, will be in
charge of, or will be responsible for construction means, methods, techniques, safety, sequences or
procedures or for safety precautions and programs in connection with the Work, all of which are the sole
responsibility of DBT.
4.1.5 Unless otherwise provided in the Contract Documents or when direct communications
have been specifically authorized, communications between DBT and City or Design Consultant shall be in
writing through Construction Manager. Communications by DBT or Subcontractors and with Separate
Contractors shall be through the Construction Manager. DBT shall not rely on oral or other non-written
communications.
4.1.6 Based on the Construction Manager’s Site visits and evaluations of DBT's Applications For
Payment, the Construction Manager will review and recommend to City for City approval the amounts, if
any, due DBT.
4.1.7 Construction Manager will make recommendations to City to reject the Work, or any
portion thereof, which does not conform to the Contract Documents. City alone shall have the authority to
stop the Work or any portion thereof. Whenever City considers it necessary or advisable, City will have the
authority to require additional inspection or testing of the Work in accordance with the Contract Documents,
whether or not such Work is fabricated, installed or completed. However, no authority of City conferred by
the Contract Documents nor any decision made in good faith either to exercise or not exercise such authority,
nor any recommendation by the Construction Manager, shall give rise to a duty or responsibility of City or
the Construction Manager to DBT or its Subcontractors.
4.1.8 Construction Manager’s authority includes, but is not limited to the following:
.1 Conduct or direct inspections to determine suitability of the Project or portion
thereof for Beneficial Occupancy.
.2 Assist City in determining the dates of Substantial Completion and Final
Completion;
.3 Review any records, written warranties and related documents required by the
Contract Documents and assembled by DBT; and
.4 Make recommendations to City for issuance of Final Payment upon DBT's
compliance with the requirements of the Contract Documents.
DESIGN-BUILD 60 2021
4.1.9 City, with the assistance of recommendations from the Design Consultant and/or
Construction Manager, shall be the ultimate interpreter of the requirements of the Contract Documents and
the judge of performance thereunder by DBT. Such decisions by City will be final and binding upon DBT.
4.2 CLAIMS
4.2.1 Public Contract Code Section 9204. Public Contract Code Section 9204 (“Section 9204”)
sets forth certain pre-litigation claims procedures for public works projects that City is required to include in
its Contract Documents. In summary, Section 9204 requires public entities to respond to claims within 45
days, to meet and confer if requested by the contractor, to promptly pay undisputed amounts, and to
mediate unresolved claims prior to litigation, absent a mutual waiver of mediation. It expressly provides for
the submission of subcontractor “pass -through” claims, and allows public entities to prescribe reasonable
additional change order, claim, and dispute resolution procedures and requirements, so long as the
additional provisions do not conflict with or otherwise impair the timeframes and procedures set forth in
Section 9204. The requirements of Section 9204 are incorporated and included in the following provisions,
which also include reasonable additional procedures.
4.2.2 Scope and Authority. This Section 4.2 applies to any Claim, as defined in Section 1.1.19,
above, arising from or related to the Contract or performance of the Work. It is intended to provide the
exclusive procedures for submission and resolution of Claims of any amount, and applies in addition to the
provisions of Public Contract Code Section 9204, and Public Contract Code Sections 20104 et seq., which are
incorporated by reference herein and included in these provisions.
4.2.3 Accrual of Claim. A Claim accrues and arises upon issuance of a written decision by the
City or Construction Manager denying, in whole or in part, a Change Order Request, which was previously
submitted in compliance with these Contract Documents. A Claim that demands an extension of time or an
increase in the Contract Sum does not accrue unless DBT has previously submitted su ch demand(s) in a
Change Order Request.
4.2.4 Claims Submission Requirements and Deadlines. All Claims must be submitted in writing
by registered mail or certified mail with return receipt requested. Except for Claims disputing the amount
of Final Payment, all Claims and all supporting documentation and certifications, as further detailed below,
must be filed within fourteen (14) Days following the date that City notified DBT in writing that a request for
a change in the Contract Time or Contract Price, duly submitted in compliance with the Contract Documents,
has been rejected in whole or in part; any Claim which is not submitted prior to Final Payment is deemed
waived. A Claim disputing the amount of Final Payment must be submitted within fourteen (14) Days of the
effective date of Final Payment. Strict compliance with these Claim submission deadlines is necessary to
ensure that any dispute may be mitigated as soon as possible, and to facilitate cost -efficient administration
of the Project. Any Claim that is not submitted within the specified deadlines will be deemed waived by
DBT.
4.2.5 Supporting Documentation. A Claim submittal must include the following:
.1 A statement that it is a Claim, clearly specifying the amount requested (with respect to
Claims for payment), and/or the number of days requested (with respect to Claims for an
extension of the Contract Time);
.2 A detailed description of the act, error, omission, Differing Site Condition, event or other
circumstance giving rise to the Claim; and
DESIGN-BUILD 61 2021
.3 A statement demonstrating that a Change Order Request was submitted in a timely
manner as required by Section 7.2 of these General Conditions, along with a copy of the
Change Order Request and the City’s written rejection of the subject Claim.
.4 All documents necessary to substantiate the Claim, including, without limitation:
(i). A detailed cost breakdown in the form required for submittal of Change Order
Requests, and subject to the limitations described in Article 7, below.
(ii). Copies of actual job cost records demonstrating that the costs have been incurred.
(iii). If the Claim is based on an error, omission, conflict or ambiguity in the Contract
Documents: (i) a sworn statement by DBT and any Subcontractor involved in th e
Claim, to the effect that the error, omission, conflict or ambiguity was not
discovered prior to submission of the Proposal, and (ii) if not discovered, a
statement demonstrating that the error, omission, conflict or ambiguity could not
have been discovered by DBT, its Subcontractor(s) or in exercise of the degree of
care required of them under the Contract Documents for review of the Contract
Documents prior to submission of the Proposal.
.5 If the Claim involves a request for adjustment of the Contract Time, written documentation
demonstrating that DBT has complied with the requirements of the Contract Documents
pertaining to proving the right to an extension of time and demonstrating that DBT is
entitled to an extension of time under the Contract Documents.
.6 A written certification signed by a responsible managing officer of DBT’s organization, who
has the authority to sign subcontracts and purchase orders on behalf of DBT and who has
personally investigated and confirmed the truth and accuracy of the matters set forth in
such certification, in the following form:
I hereby certify under penalty of perjury under the laws of the State of California
that I am a managing officer of and that I have reviewed
the Claim presented herewith on DBT’s behalf and/or on behalf of and that the
following statements are true and correct.
(i) The facts alleged in or that form the basis for the Claim are true and
accurate; and,
(ii) DBT does not know of any facts or circumstances, not alleged in the
Claim, that by reason of their not being alleged render any fact or statement alleged in the
Claim materially misleading; and,
(iii) DBT has, with respect to any request for money or damages alleged in or
that forms the basis for the Claim, reviewed the job cost records (including those
maintained by DBT and by any Subcontractor of any Tier, that is asserting all or any portion
of the Claim) and confirmed with reasonable certainty that the Losses or damages suffered
by DBT and/or such Subcontractor were in fact suffered in the amounts and for the
reasons alleged in the Claim; and,
DESIGN-BUILD 62 2021
(iv) DBT has, with respect to any request for extension of time or claim of
Delay, disruption, hindrance or interference alleged in or that forms the basis for the Claim,
reviewed the job schedules (including those maintained by DBT and by any Subcontractor
involved in the Claim) and confirmed on an event-by-event basis that the delays or
disruption suffered by DBT and /or such Subcontractor were in fact experienced for the
durations, in the manner, and with the consequent effects on the time and/or sequence of
performance of the Work, as alleged in the Claim; and,
(v) DBT has not received payment from City for, nor has DBT previously
released City from, any portion of the Claim.
(vi) DBT understands that submission of a Claim which has no basis in fact or
which DBT knows to be false may violate the False Claims Act (Government Code Section
12650 et seq.).
Signature: ___________________________
Name: ______________________________
Title: _______________________________
Company: ___________________________
Date: _______________________________
4.2.6 Strict Compliance Required. No Claim may be asserted unless DBT has strictly complied
with the requirements of Section 4.2 of these General Conditions, which shall be considered conditions
precedent to DBT’s rights to assert the Claim and to initiate the Contract Dispute Resolution Process set forth
below with respect to such Claim.
4.2.7 No Work Delay. Notwithstanding the submission of any Claim or the existence of any
dispute regarding any Claim, unless otherwise directed by City, DBT shall not delay, sl ow or stop performance
of the Work, but shall diligently proceed with performance in accordance with the Contract Documents and
City will continue to make payments as required by the Contract Documents.
4.2.8 City Response. City shall respond in writing within forty-five (45) Days of receipt of the
Claim with a written statement identifying which portion(s) of the Claim are disputed or undisputed, unless
the 45 Day period is extended by mutual agreement of City and DBT or as otherwise allowed under Public
Contract Code Section 9204. However, if City determines that the Claim is not adequately documented, City
may first request in writing, within thirty (30) days of receipt of the Claim , additional information or
documentation supporting the Claim, or relating to defenses to the Claim that City may have against the
Claim, in which case City shall respond to the Claim within forty-five 45 Days after receipt of the further
information or documentation. If DBT fails to submit the additional documentation to City within fifteen
(15) Days of receipt of City’s request, the Claim will be deemed waived. If City Council authorization is
necessary for City to respond to a Claim, City will respond within three (3) Days following the Council’s
consideration of the Claim, which shall be scheduled in accordance with Section 9204.
4.2.9 Non-Waiver. Any failure by City to respond within the times specified above may not be
construed as acceptance of the Claim in whole or in part, or as a waiver of any provision of these Contract
Documents.
DESIGN-BUILD 63 2021
4.2.10 Payment on Undisputed Portion. Any payment due on an undisputed portion of the Claim
shall be paid within 60 Days after the City issues its written response.
4.2.11 Meet and Confer. If DBT disputes City’s response, or if City fails to respond within the
prescribed time set forth above, DBT may so notify City and demand a meet and confer conference for
settlement of the issues in dispute, in writing sent by registered mail or certified mail, return receipt
requested, within fifteen (15) Days of City’s response or within fifteen (15) Days of City’s failure to respond
If DBT fails to dispute City’s response within the specified time, DBT’s Claim shall be deemed waived.
.1 Schedule Meet and Confer. Upon receipt of the demand to meet and confer, City will
schedule the meet and confer conference to be held within 30 days, or later if needed to
ensure the mutual availability of each of the individuals that each party requires to
represent its interests at the meet and confer conference.
.2 Location for Meet and Confer. The meet and confer conference will be scheduled at a
location at or near City’s principal office.
.3 Written Statement After Meet and Confer. Within ten (10) working days after the meet
and confer has concluded, City will issue a written statement identifying which portion(s)
of the Claim remain in dispute, if any.
.4 Submission to Mediation. If the Claim or any portion remains in dispute following the meet
and confer conference, within ten (10) working days after the City issues the written
statement identifying any portion(s) of the Claim remaining in dispute, the disputed
portion(s) will be submitted for nonbinding mediation, as set forth below.
DESIGN-BUILD 64 2021
4.2.12 Mediation. Within ten (10) working days after the City issues the written statement
identifying any portion(s) of the Claim remaining in dispute following the meet and confer, City and
Contractor will mutually agree to a mediator and mediation process, con sistent with and as provided under
Public Contract Code section 9204. Mediation will be scheduled to ensure the mutual availability of the
selected mediator and all of the individuals that each party requires to represent its interests. All discussions
that occur during the mediation and all documents prepared solely for the purpose of the mediation shall be
confidential and privileged pursuant to California Evidence Code Sections 1119 and 1152. The parties will
share the costs of mediation equally, except costs incurred by each party for its representation by legal
counsel or any other consultants.
4.2.13 The Claim procedures set forth herein do not apply to the following:
(i) Penalties or forfeitures prescribed by statute or regulation imposed by a
governmental agency.
(ii) Tort claims for personal injury or death.
(iii) False claims liability under California Government Code Section 12650, et seq.
(iv) Defects in the Work first discovered by City after Final Payment by City to DBT.
(v) Stop notices.
(vi) The right of City to specific performance or injunctive relief to compel
performance of any provision of the Contract Documents.
4.2.14 If the Claim is not fully resolved during the meet and confer conference or through
mediation, as to those portions of the Claim which remain in dispute, DBT may commence the Contract
Dispute Resolution Process set forth below by filing a Statement of Contract Dispute with the City within
thirty (30) Days following the meet and confer conference if the parties have mutually waived mediation or
within thirty (30) Days following the mediation result. If DBT fails to submit a Statement of Contract Dispute
within the applicable thirty (30) Day period, City’s last written response will become final and binding upon
DBT, and DBT shall be deemed to have waived and release any further right to pursue the Claim.
4.3 RESOLUTION OF CONTRACT DISPUTES.
Contract Disputes shall be resolved by the parties in accordance with the Contract Dispute Resolution Process set
forth in this Section 4.3 of the General Conditions in lieu of any and all rights under the law that either party have its
rights adjudged by a trial court or jury. All Contract Disputes shall be subject to the Cont ract Dispute Resolution
Process set forth in this Section 4.3, which shall be the exclusive recourse of DBT and City for such Contract Disputes.
4.3.1 Non-Contract Disputes. Contract Disputes shall not include any of the following:
(i) Penalties or forfeitures prescribed by statute or regulation imposed by a governmental
agency;
(ii) Third party tort claims for personal injury, property damage or death relating to any Work
performed by DBT or its Subcontractors or Sub-Subcontractors of any tier;
(iii) False claims liability under California Government Code Section 12650, et. seq.;
(iv) Defects in the Work first discovered by City after Final Payment by City to DBT;
(v) Stop notices; or
(vi) The right of City to specific performance or injunctive relief to compel performance of any
provision of the Contract Documents.
DESIGN-BUILD 65 2021
4.3.2 Litigation, City Election.
Matters that do not constitute Contract Disputes shall be resolved by way of an action filed in the Superior
Court of the State of California, County of Santa Clara, and shall not be subject to the Contract Dispute
Resolution Process. However, the City reserves the right, in its sole and absolute discretion, to treat such
disputes as Contract Disputes. Upon written notice by City of its election as provided in the preceding
sentence, such dispute shall be submitted by the parties and finally decided pursuant to the Contract Dispute
Resolution Process in the manner as required for Contract Disputes, including, without limitation, City’s right
under Paragraph 4.3.5 to defer resolution and final determination until after Final Completion of the Work .
4.3.3 Submission of Contract Dispute.
.1 By DBT.
DBTs may commence the Contract Dispute Resolution Process upon conclusion of the Claims
process set forth in Section 4.2 above. DBT shall submit a written Statement of Contract Dispute
(as set forth below) to City within thirty (30) Days after conclusion of meet and confer process or
mediation, as applicable, set forth in Section 4.2. Failure by DBT to submit its Statement of Contract
Dispute in a timely manner shall result in City’s decision by City on the Claim becoming final and
binding. DBT’s Statement of Contract Dispute shall be signed under penalty of perjury and shall
state with specificity the events or circumstances giving rise to the Contract Dispute, the dates of
their occurrence and the asserted effect on the Contract Sum and the Contract Time. The Statement
of Contract Dispute shall include adequate supporting data to substantiate the disputed Claim, in
compliance with the Change Order Request requirements set forth herein.
.2 By City.
City's right to commence the Contract Dispute Resolution Process shall arise at any time following
City's actual discovery of the circumstances giving rise to the Contract Dispute. City may also assert
a Contract Dispute in response to a Contract Dispute asserted by DBT. A Statement of Contract
Dispute submitted by City shall state the events or circumstances giving rise to the Contract Dispute,
the dates of their occurrence and the damages or other relief claimed by City as a result of such
events.
.3 Contract Dispute Resolution Process.
The parties shall utilize each of the following steps in the Contract Dispute Resolution Process in the
sequence they appear below. Each party shall participate fully and in go od faith in each step in the
Contract Dispute Resolution Process, and good faith effort shall be a condition precedent to the
right of each party to proceed to the next step in the process.
4.3.4 Direct Negotiations.
Designated representatives of City and DBT shall meet as soon as possible (but not later than ten
(10) Days after receipt of the Statement of Contract Dispute) in a good faith effort to negotiate a
resolution to the Contract Dispute. Each party shall be represented in such negotiations by an
authorized representative with full knowledge of the details of the Claims or defenses being
asserted by such party in the negotiations, and with full authority to resolve such Contract Dispute
then and there, subject only to City’s obligation to obtain administrative and/or City Council
approval of any agreed settlement or resolution. If the Contract Dispute involves the assertion of a
right or claim by a Subcontractor against DBT that is in turn being asserted by DBT against City
(“Pass-Through Claim”), then the Subcontractor shall also have a representative attend the
negotiations, with the same authority and knowledge as described above. Upon completion of the
meeting, if the Contract Dispute is not resolved, the parties may either continue the negotiations
or any party may declare negotiations ended. All discussions that occur during such negotiations
and all documents prepared solely for the purpose of such negotiations shall be confidential and
privileged pursuant to California Evidence Code Sections 1119 and 1152.
DESIGN-BUILD 66 2021
4.3.5 Deferral of Contract Disputes.
Following the completion of the negotiations required by Paragraph 4.3.4, above, all unresolved
Contract Disputes shall be deferred pending Final Completion of the Project, subject to City’s right,
in its sole and absolute discretion, to require that the Contract Dispute Resolution Process proceed
prior to Final Completion. All Contract Disputes that have been deferred until Final Completion shall
be consolidated within a reasonable time after Final Completion and thereafter pursued to
resolution pursuant to this Contract Dispute Resolution Process. The parties can continue informal
negotiations of Contract Disputes; provided, however, that such informal negotiations shall not be
alter the provision for deferring final determination and resolution of unresolved Contract Disputes
until after Final Completion.
4.3.6 Mediation.
If the Contract Dispute remains unresolved after negotiations pursuant to Paragraph 4.3.4 (Direct
Negotiations), above, the parties may choose, by mutual agreement, to conduct further mediation,
however they shall be under no obligation to do so.
4.3.7 Binding Arbitration.
Any remaining Contract Dispute shall be submitted for binding arbitration.
.1 Process. Any Claim submitted for binding arbitration, as set forth above, shall be
determined by arbitration at the San Francisco JAMS’ offices, and administered by JAMS
pursuant to its Engineering and Construction Arbitration Rules & Procedures for Expedited
Arbitration. Judgment on the Award may be entered in any court having jurisdiction. This
clause shall not preclude parties from seeking provisional remedies in aid of arbitration
from a court of appropriate jurisdiction within Santa Clara County, and no other place.
.2 Waiver of Jury Trial. DBT and City each voluntarily waives its right to a jury trial with
respect to any Contract Dispute that is subject to binding arbitration in accordance with
the provisions of this Paragraph 4.3. DBT shall include this provision in its contracts with
its Subcontractors who provide any portion of the Work.
4.3.8 Non-Waiver.
Participation in the Contract Dispute Resolution Process shall not waive, release or compromise any defense
of City, including, without limitation, any defense based on the assertion that the rights or Claims of DBT that
are the basis of a Contract Dispute were previously waived by DBT due to DBT’s failure to comply with the
Contract Documents, including, without limitation, DBT’s failure to comply with any time periods for
providing notice of requests for adjustments of the Contract Sum or Contract Time or for submission of
Claims or supporting documentation of Claims.
DESIGN-BUILD 67 2021
ARTICLE 5 – SUBCONTRACTORS
5.1 DBT'S AWARD OF SUBCONTRACTS
5.1.1 DBT shall comply with the Subletting and Subcontracting Fair Practices Act, Public Contract
Code Sections 4100 through 4114. Nothing herein shall be deemed to entitle DBT, without the written
approval of City, to substitute other Subcontractors for those named in DBT's List of Subcontractors
contained in the completed Proposal; and, except with such approval, no such substitution shall be made.
Should DBT violate any of the provisions of the Subletting and Subcontracting Fair Practices Act, such
violation shall be deemed a violation of the Design -Build Contract, entitling City, without limitation to any
other rights or remedies under the law, to suspend or terminate the Design-Build Contract.
5.1.2 Except as hereinafter provided, any increase in the cost of the Work or Contract Time
resulting from the replacement or substitution of a Subcontractor, shall be borne solely by DBT and without
any adjustment in Contract Sum or Contract Time.
5.1.3 Where a hearing is held pursuant to the provisions of Chapter 2, Division 5, Title 1 of the
Public Contract Code (commencing with Subparagraph 4100), by the awarding authority or a duly appointed
hearing officer, City’s representative shall prepare and certify a statement of all costs incurred by City for
investigation and conduct of the hearing, including the costs of any hearing officer and reporter appointed.
The statement shall then be sent to DBT who shall reimburse City for such costs. If not paid separately, such
reimbursement may be deducted from any money due and owing to DBT.
5.2 SUBCONTRACTOR RELATIONS
5.2.1 Prior to the execution of each subcontract agreement, DBT shall make available to each
proposed Subcontractor, copies of the Contract Documents. DBT must incorporate the terms of these
Contract Documents into each subcontract, so that each Subcontractor will be bound by the terms of th ese
Contract Documents, including, but not limited to, the provisions for dispute resolution. Within thirty (30)
Days of the Notice To Proceed, DBT shall provide City with a complete listing of all Subcontractors, which
shall include, but not be limited to, the Work contracted for, Subcontractor’s name, address, telephone and
facsimile numbers, form for doing business (i.e, sole proprietor, corporation, partnership), point -of-contact
and Subcontractor’s license classification and number.
5.2.2 Any part of the Work performed for DBT by a first Tier Subcontractor shall be pursuant to
a written subcontract. Each such subcontract shall require that the Subcontractor:
(i) Perform the Work in accordance with the terms of the Contract Documents.
(ii) Assume toward DBT all the obligations and responsibilities which DBT assumes towards
City by the Contract Documents.
(iii) Preserve and protect the rights of City under the Contract Documents with respect to the
Work to be performed by the Subcontractor so that subcontracting thereof will not
prejudice such rights.
(iv) Waive all rights that the Subcontractor may have against City for damages caused by fire
or other perils covered by builder's risk property insurance carried by DBT or City,
except for such rights Subcontractor may have to the proceeds of such insurance held
by City under Article 11 of these General Conditions.
DESIGN-BUILD 68 2021
(v) Afford City and entities and agencies designated by City the same rights and remedies
with respect to access to and the right to audit and the right to copy at City's cost all of
the Subcontractor's books, records, contracts, correspondence, instructions, drawings,
receipts, vouchers, purchase orders and memoranda relating to the Work and requiring
the Subcontractor to preserve all such records and other items for a period of at least
three (3) years after Final Completion.
(vi) Recognize the rights of City under Section 5.3 of the General Conditions, Contingent
Assignment of Subcontracts, including, without limitation, City’s right to elect to accept
assignment of the subcontract and to retain Subcontractor pursuant to the terms of the
subcontract, to complete the unperformed obligations under the subcontract and, if
requested by City, to execute a written agreement on terms acceptable to City confirming
that the Subcontractor is bound to City under the same terms as the subcontract.
(vii) Submit Applications for payment, requests for Change Orders and extensions of time and
Claims, and to comply with all other notice and submission requirements of the Contract
Documents, sufficiently in advance to allow DBT time to comply with its obligations under
the Contract Documents.
(viii) Purchase and maintain insurance in accordance with the requirements of the Contract
Documents and reserving the right to City to purchase, in its sole discretion, such insurance
pursuant to a City Controlled Insurance or other form of wrap-up program.
(ix) Provide the same defense indemnification of the City as is required of the DBT.
(x) Agree to participate in the dispute resolution procedures specified in the Construction
Contract, at the election of City.
5.2.3 DBT shall promptly, after execution, furnish to City true, complete, and executed copies of
all subcontracts, and any change orders and modifications thereto. Progress payments shall not be made for
items of Work for which City has not received executed subcontracts and, if applicable, Change Orders.
5.2.4 Nothing contained in the Contract Documents shall create any co ntractual relationship
between any Subcontractor and City, except when, and only to the extent that, City elects to accept the
assignment of the subcontract with such Subcontractor pursuant to Section 5.3, Contingent Assignment
of Subcontracts. Notwithstanding the foregoing, City is deemed a third party beneficiary of each
subcontract agreement.
5.2.5 City and the Construction Manager shall have the right to communicate with DBT’s
Subcontractors with respect to matters that are related to DBT’s perfor mance of its obligations under the
Contract Documents. DBT shall be provided with a copy of all such written communications. Such
communications shall not create or be interpreted as creating any contractual relationship between City or
the Construction Manager and any such Subcontractor.
DESIGN-BUILD 69 2021
5.3 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
In the event of any suspension or termination of the Design-Build Contract, DBT is hereby deemed to have
offered to assign to City all its interest in contracts with Subcontractors now or hereafter entered into by
DBT for performance of any part of the Work. The assignment will be effective upon acceptance by City in
writing and only as to those contracts which City designates in writing. City may accept, at its sole election,
said assignment at any time during the course of the Work and prior to Final Completion in the event of a
suspension or termination of DBT's rights under the Contract Documents. Such assignment is pa rt of the
consideration to City for entering into the Contract with DBT and may not be withdrawn prior to Final
Completion.
5.4 DBT AND SUBCONTRACTOR RESPONSIBILITY
DBT shall be responsible to City for acts and omissions of DBT's agents, employees, and o f DBT’s
Subcontractors, and their respective agents and employees. Unless otherwise stated in or a contrary
intention is reasonably inferable from the Contract Documents, references to DBT, when used in reference
to an obligation bearing upon performance of the Work, shall be deemed to include DBT’s Subcontractors.
ARTICLE 6 – CONSTRUCTION BY CITY OR BY SEPARATE CONTRACTORS
6.1 CITY'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS
6.1.1 City reserves the right to award separate contracts for, or to perform with its own forces,
construction or operations related to the Work or other construction or operations at or affecting the Site,
including portions of the Work which have been deleted by modification. DBT shall cooperate with City's
forces and Separate Contractors.
6.1.2 City shall provide coordination of the activities of City forces and of each Separate
Contractor with the Work of DBT. DBT shall participate with City and Separate Contractors in joint review of
construction schedules and Project requirements when directed to do so. DBT shall make necessary
revisions to the Construction Schedule after such joint review.
6.1.3 Without limitation upon any of the rights or remedies of City under the Contract
Documents or under law arising from a default by DBT, in the event that DBT fails to have personnel on Sit e
to supervise the Work, City shall have the right, in its sole discretion, but not the responsibility, upon twenty -
four (24) hours’ telephonic notice to DBT, to provide such supervision on a temporary basis. DBT shall,
notwithstanding City’s providing such temporary supervision, remain solely responsible for all actions of its
personnel and Subcontractors and shall defend and indemnify City in accordance with the Design -Build
Contract against any Losses arising therefrom. City shall have the right, in its discretion, to deduct from the
sums owing to DBT the reasonable cost of such temporary supervision.
6.2 MUTUAL RESPONSIBILITY
6.2.1 DBT shall be responsible for affording Separate Contractors reasonable oppo rtunity for
introduction and storage of their materials and equipment and performance of their activities. DBT shall
schedule and coordinate its Design-Build Services with the construction and operations of Separate
Contractors as required by the Contract Documents.
DESIGN-BUILD 70 2021
6.2.2 If a portion of the Work is dependent upon the proper execution or results of other
construction or operations by Separate Contractors, DBT shall inspect such other construction or operations
before proceeding with its portion of the Work. DBT shall promptly report to City apparent discrepancies or
defects which render the other construction or operations unsuitable to receive the DBT’s Work. Unless
otherwise directed by City, DBT shall not proceed with the portion of the Work affected until apparent
discrepancies or defects have been corrected. Failure of DBT to so report within a reasonable time after
discovering such discrepancies or defects shall constitute an acknowledgment that the other construction or
operations by City or Separate Contractors is suitable to receive the Work, except as to defects not then
reasonably discoverable.
6.2.3 In the event of Delays, improperly timed activities or Defective Work by the DBT or the
Separate Contractors, the costs of such occurrences shall be borne by the party responsible therefor.
6.2.4 If DBT wrongfully causes damage to completed or partially completed construction or to
property of City or Separate Contractors, DBT shall promptly remedy damage as provided in Paragraph 12.2
of these General Conditions.
6.2.5 If a dispute, or other matters in question arise between DBT and a Separate Contractor,
these occurrences shall be subject to the provisions of Section 4.2 and 4.3 of the General Conditions. DBT
shall immediately notify the Construction Manager in writing of such occurrences.
6.3 CITY’S RIGHT TO CLEAN UP
If a dispute arises between DBT and Separate Contractors as to the responsibility under their respective
contracts for maintaining the Site and surrounding areas free from waste materials and rubbish, City may
clean up and allocate the cost between those firms it deems, in its sole discretion, to be responsible.
ARTICLE 7 – CHANGES
7.1 CHANGES
7.1.1 City may, at any time and without notice to DBT’s sureties, order Changes in the Work
without invalidating the Design-Build Contract and without relieving DBT’s sureties of their obligations to
City.
7.1.2 City shall receive a deductive adjustment in the Contract Sum for Changes that result in a
reduction in the cost to perform the Work and shall be entitled to an adjustment reducing the Contract Time
for Changes that enable the DBT to complete the Work earlier than the Contract Time.
7.1.3 Unless such rights have been waived and provided that DBT has complied with the
requirements of the Contract Documents with respect to, without limitation, complete and timely
submission of all notices, requests and supporting documentation, DBT shall receive an additive adjustment
to the Contract Sum for Changes that increase the cost to perform the Work and/or an adjustment extending
the Contract Time for Excusable Delay (subject to offset for concurrent Unexcused Delay).
DESIGN-BUILD 71 2021
7.1.4 DBT shall not be entitled to an adjustment of the Contract Sum or Contract Time for
Changes that are not authorized by an Approved Change Order or Field Order signed by City or Construction
Manager. All Changes in the Work that are the basis of an adjustment to the Contract Sum or Contract Time
must be authorized in advance, in writing, by City or Construction Manager. Accordingly, no verbal
directions, course of conduct between the parties or express or implied Acceptance of Changes or Work, and
no claim that the City has been unjustly enriched (whether or not there has been such enrichment) shall be
the basis for an adjustment to the Contract Sum or Contract Time if DBT has not obtained advance written
authorization to perform the Change in the manner required herein.
7.1.5 City or the Construction Manager may authorize and direct Changes by requesting that
DBT submit a Change Order Request or by issuing a Field Order. A Field Order may be issued to direct
performance of Work under the following circumstances:
.1 When there is a dispute as to whether or not the Work described therein
constitutes or includes a Change or Extra Work,
.2 When there is a dispute regarding the basis or amount of compensation for
Changed or Extra Work,
.3 When there is a dispute regarding whether or how the Contract Time should be
adjusted, or
.4 As otherwise deemed necessary by City to ensure the timely performance of the
Work and timely completion of the Project.
The purpose of a Field Order is to ensure the timely performance of the Work and timely completion of the
Project, and issuance of a Field Order shall not be construed as an acknowledgment by City that the Work
described constitutes a Change or Extra Work if that is in fact not the case.
7.1.6 City can make whatever Changes that it determines in its sole discretion are necessary and
in its best interests and under no circumstances shall the number (individual or cumulative value) or scope
of Changes become a basis for DBT to claim that the Design -Build Contract has been rescinded, terminated,
abandoned or should be reformed nor shall such circumstances be the basis for DBT, or any Subcontractor
to recover any compensation or damages not permitted by, or in excess of that allowed under, the Contract
Documents.
7.1.7 City shall have authority to order minor Changes in the Work that do not increase the cost
or time to perform the Work, and which are consistent with the intent of the Contract Documents. Such
changes may be directed by a Field Order, and shall be binding on City and DBT. DBT shall carry out such
written orders promptly.
DESIGN-BUILD 72 2021
7.2 CHANGE ORDER REQUESTS AND CHANGE ORDERS
7.2.1 DBT may request adjustments to the Contract Sum or Contract Time or the terms of a Field
Order by submitting a written Change Order Request if, and only if, DBT follows the procedures specified in
the Contract Documents, including, without limitation, the procedures set forth in this Section 7.2. A Change
Order Request must be submitted within ten (10) Days after the occurrence of the circumstances giving rise
thereto. At the City’s election, the DBT shall submit all Change Order requests on a form prepared by the
City. The Change Order Request must clearly describe the circumstances that are the basis of the Change,
with reference, to the particular provisions of the Contract Documents involved, and also to all other directly
relevant documents, including, but not limited to, related Requests for Information and r esponses thereto,
and Field Orders. A Change Order Request seeking an adjustment to the Contract Sum must identify the
proposed basis of compensation, the amount of the requested adjustment, and a detailed breakdown of the
amount requested. A Change Order Request seeking an adjustment to the Contract Time must include all
information required by the Contract Documents, including, but not limited to strict compliance with Section
8.5 of the General Conditions pertaining to requests for extension of Contrac t Time. A request for an
extension of Contract Time must be accompanied by a "Fragnet" or “time impact analysis," which identifies
all critical and non-critical activities affected by the Change Order Request and showing logic ties into all
existing affected activities noted on the latest approved, updated Construction Schedule. Change Order
Requests must be submitted to the Construction Manager. Incomplete Change Order Requests or requests
that are not submitted on the City’s Change Order Request Form will be returned without review.
7.2.2 Adjustments to the Contract Sum, whether increases or decreases, shall be computed at
City's sole election on the basis of one or more of the following methods:
.1 Unit Pricing: Unit prices stated in the Contract Documents or agreed upon by City
and DBT, which shall be deemed to include all Allowable Costs, Contractor
Markup and Subcontractor Markup.
.2 Lump Sum Pricing: A lump sum agreed upon by City and DBT, based on the
estimated Allowable Costs, Contractor Markup, and Subcontractor Markup
computed in accordance with this Section.
.3 Time and Materials: Work performed on a time and materials basis shall be
calculated as the sum of Allowable Costs, plus applicab le Contractor Markup, as
set forth herein.
The above methods are the exclusive methods for calculating adjustments to the Contract Sum. Under no
circumstances will adjustment to the Contract Sum be based upon any methodology such as total cost or
modified total cost methodologies that purports to calculate DBT’s additional costs based on the difference
between DBT’s total actual Project or line item costs and its original Proposal estimate for the Project or any
original Proposal estimate line item.
DESIGN-BUILD 73 2021
7.2.3 Changes involving Extra Work that City elects to have performed on a time and material
basis, whether performed by DBT's forces or the forces of Subcontractors, shall be compensated by an
increase in the Contract Sum based on actual Allowable Costs and applicable Markup, as set forth herein.
When Work is performed on a time and material basis, by DBT or any of its Subcontractors, DBT shall submit
on a daily basis to the Construction Manager daily time and material tickets which include the identificatio n
number assigned to the Change; the location and description of the Change; the classification of labor
employed (and names and social security numbers if requested); the materials used; the equipment rented
(not tools); and such other receipts, invoices, or other evidence of cost as the Construction Manager may
require. The Construction Manager may require authentication of all time and material tickets and invoices
by persons designated by the Construction Manager for such purpose. The failure of DBT to provide any
required authentication shall, if City elects to treat it as such, constitute a waiver by DBT of any right to
adjustment of the Contract Sum for the cost of all or that portion of the Extra Work covered by a non -
authenticated ticket or subsequent invoice. The adjustment to the Contract Sum for the Extra Work will be
based on the total sum of Allowable Costs for performance of that Extra Work and applicable Markup as
provided herein.
7.2.4 Allowable Costs include and are limited to the sum of direct, actual costs necessarily
incurred by DBT and any Subcontractors that actually perform Extra Work, and are strictly limited to the
following:
.1 Labor. The actual costs for straight-time (and the premium time portion of overtime, if
approved in writing in advance by City or the Construction Manager) wages or salaries for
employees performing the Extra Work, whether at the Site, or at fabrication sites off the
Site, plus employer payments collectively referred to as "Fringe Benefits and Payroll
Taxes," of payroll, taxes and insurance, health and welfare pension, vacation,
apprenticeship funds, and other direct costs required by Federal, State or local laws, as
well as assessments or benefits required by lawful collective bargaining agreements. The
use of employees with a labor classification, which would increase the Allowable Costs will
not be permitted unless DBT establishes the necessity for such additional costs. Labor
costs for equipment operators and helpers shall be payable under this Par agraph only
when such costs are not included in the invoice for equipment rental.
.2 Material. The actual cost of materials, supplies and consumable items which are required
for the Work at invoice or lowest current price at which such materials are locally available
and delivered to the Site in the quantities involved, including sales tax, freight and delivery.
City reserves the right to approve materials and sources of supply, or to supply materials
to DBT, if necessary, for the Work. No Markup shall be applied to any material provided
by City. Material re-stocking charges shall be limited to 5% of the amount of material. All
discounts, rebates and refunds from the sale of surplus materials and consumable items
shall accrue to City, and DBT shall make provision so that they may be obtained.
.3 Tool and Equipment Rental. Rental charges actually incurred for necessary machinery and
equipment, whether owned or hired, as authorized in writing by City or the Construction
Manager, exclusive of hand tools. No payment will be made for the use of tools that have
a replacement value of $500 or less. When the equipment is owned by DBT, the rental
rate shall be as listed for such equipment in the California Department of Transportation
publication entitled "Labor Surcharge and Equipment Rental Rates," which is in effect on
the date the Work is accomplished. When equipment is not listed in said publication, the
rate to be paid shall be as herein defined, or a suitable rental rate for such equipment will
be established by the Construction Manager. Regardless of ownership, the rates to be
used in determining equipment rental cost shall not exceed listed rates prevailing locally
at equipment rental agencies or distributors at the time the work is performed. The ren tal
rates paid shall include the cost of fuel, oil, lubrication, supplies, small tools, necessary
attachments, repairs and maintenance of any kind, depreciation, storage, insurance and
DESIGN-BUILD 74 2021
all incidentals. If equipment is used intermittently, when not in use it shall be returned to
its rental source unless DBT elects to keep it at the Site at no expense to City. The reported
rental time for equipment already at the Site shall be the duration of its use on the Extra
Work, commencing at the time it is first put into actual operation on the Extra Work, plus
the time required to move it from its previous site and back, or to a closer site.
.4 Royalties and Permits. Costs of royalties and permits solely related to the Extra or Deleted
Work.
.5 Insurance and Bonds. Additional costs of insurance and bonds, not to exceed two percent
(2%) of the total of Parts .1 through .4, above.
7.2.5 Allowable Costs shall not include any of the following, which are deemed to be included in
DBT's Markup:
(i) Superintendent(s)
(ii) Assistant Superintendent (s)
(iii) Project Engineer(s), Assistant Project Engineer(s).
(iv) Project Manager(s), Assistant Project Manager(s).
(v) Scheduler(s), Administrative Assistant(s), Health and Safety personnel.
(vi) Estimator(s), Clerk(s), Secretary(s), Accountant(s) or any Home Office personnel.
(vii) Drafting or detailing.
(viii) Small tools (with a replacement value under $500).
(ix) Home or field office expenses, including staff, materials, and supplies.
(x) Trailer or storage rental and expense, whether on the Site or off the Site.
(xi) Data processing personnel and equipment.
(xii) Site fencing.
(xiii) Utilities, including, without limitation, gas, electric, sewer, water, telephones.
(xiv) Telephone, cell phone, radios, computer, tablet devices, facsimile, e-mail and copier.
(xv) Overhead, administrative, or general expenses of any kind.
(xvi) Loss of efficiency or productivity, or other impact cost due to the effect of the Extra Work
on the performance of other Work or the Work of other trades on the Project.
(xvii) Capital expenses, including interest on capital employed in connection with Extra Work.
(xviii) Legal costs.
(xix) Federal, State, or local income and franchise taxes.
DESIGN-BUILD 75 2021
(xx) Profit.
(xxi) Costs incurred more than twenty (20) Days prior to submission of a Change Order Request
seeking compensation for those costs.
(xxii) Cost of any item not specifically and expressly included in Allowable Costs.
7.2.6 Contractor Markup for Extra Work is to be calculated as ten percent (10%) of the Allowable
Costs the DBT or Subcontractor actually incurred to perform the Extra Work with its own forces.
Subcontractor Markup by DBT for Extra Work performed by Subcontractor is to be calculated as fifteen
percent (15%) of the total Allowable Costs the Subcontractor incurred for Extra Work. The total amount of
markup for Extra Work may not exceed twenty-five percent (25%) of the total Allowable Costs.
7.2.7 Change Order Requests or requests for payment for time and material work directed by a
Field Order must include a complete breakdown of actual costs, including credits, and shall itemize all
Allowable Costs, subcontract costs if applicable, Contractor Markup, and Subcontractor Markup if applicable.
All claimed costs must be fully documented and objectively verifiable. In connection with the foregoing, DBT
must generate and maintain complete and accurate cost accounting recor ds that will reflect:
.1 The actual Allowable Costs incurred or saved for each individual item of Extra Work or
Deleted Work, and
.2 On an event-by-event basis, the effect of each Delay that forms the basis of any request
for extension of time, regardless of scope, number, complexity, cumulative effect or time
of issuance or occurrence.
7.2.8 The Contract Sum will be adjusted for direct Allowable Costs incurred due to Excusable
Delay only if and to the extent allowed by the Contract for Compensable Del ay. Such adjustments in the
Contract Sum shall be DBT’s sole and exclusive remedy and recovery for Excusable Delay, including any
alleged disruption, hindrance, interference, loss of productivity, labor or material cost escalations,
inefficiency, acceleration, impact costs, extended or extraordinary overhead (direct or indirect), home office
overhead, or other Losses or damages due to Delay, of any kind.
7.2.9 City has the right to increase or decrease the quantity of any unit price item for which an
estimated quantity is stated in the Contract Documents, and the Contract Sum will be adjusted accordingly.
7.2.10 Allowance Adjustments: An Allowance is an amount included in the Proposal for Work that
may or may not be included in the Project, depending on conditions that will not become known until after
Proposal time. If the Contract Sum includes an Allowance and the cost of performing the Work covered by
that Allowance is greater or less than the stated amount, the Contract Sum shall be incr eased or decreased
accordingly by the amount of the difference. The Contract Sum shall also be adjusted by the amount of any
unused Allowance that was specifically and expressly included in the original Contract Sum.
DESIGN-BUILD 76 2021
7.2.11 Change Orders: Approved Change Order Requests and Changes directed by a Field Order,
including adjustments to Contract Sum and Contract Price, shall be incorporated into a Change Order for
approval by the City. City shall prepare each Change Order for execution by DBT and the City. Change
Orders shall be in substantially the same form as Attachment B to the General Conditions. An Approved
Change Order becomes binding upon City and DBT when fully executed by both parties. Full execution of a
Change Order is deemed full resolution, settlement, accord and satisfaction with respect to any and all
pending or future Claims for cost and extensions of time that were asserted, or that could have been
asserted, in connection with the Work covered by the Change Order, whether known or u nknown at the
time of execution of the Change Order, and that are related to the subject matter of the Change Order,
including, without limitation, all Claims, costs or damages for Delay, disruption, hindrance, interference,
extended or extraordinary direct and indirect overhead, multiplicity of Changes, loss of productivity, labor
or material cost escalations, inefficiency, the impact of the Change on the Work, legal expenses, consultant
costs, interest, lost profits or revenue, bond or insurance costs, cu rrency fluctuations, changes in taxes or
other related Claims, costs or damages. Change Orders shall be executed by DBT in the form approved by
the City Council or its authorized designee, and without any express reservation of rights by DBT to reserve
for the future the right to assert or recover from City any such Claims, costs or damages.
7.2.12 If DBT fails to timely execute a Change Order, the City may unilaterally approve the Change
Order to increase the Contract Sum and/or to extend the Contract T ime. DBT may dispute the terms of a
unilaterally-approved Change Order, in whole or in part, by submitting a Claim in accordance with the
Dispute Resolution Procedures set forth herein within fourteen (14) days after the Change Order is approved
by the City. If DBT fails to submit a Claim within that 14-day period, with respect to all or part of the
unilaterally-approved Change Order, those portions of the Change Order which have not been disputed by
timely submission of a Claim shall be deemed to have the same effect as if the Change Order was fully
executed by both parties as set forth above.
7.3 FIELD ORDERS
A Field Order will include a description of the Work to be performed, and the selected basis for adjusting the
Contract Sum (increase or decrease) as set forth herein (i.e., unit pricing if applicable, lump sum, or time
and materials). A Field Order may or may not include the total amount of the City’s proposed adjustment to
the Contract Sum or Contract Time, and may also include a not-to-exceed limit for any increases to the
Contract Sum. Upon receipt of a Field Order, DBT shall, within a reasonable time, proceed with the Work
described in the Field Order. If DBT disputes the proposed basis or amount of adju stment to the Contract
Sum or Contract Time, it may request to change the disputed portions of the Field Order by submitting a
Change Order Request within ten (10) Days following issuance of the disputed Field Order. Failure by DBT to
submit a timely Change Order Request seeking modification of the terms of the Field Order shall be deemed
full acceptance of and agreement to all of the terms of the Field Order, and a release and waiver of any right
to subsequently dispute any or all of the terms of that Field Order. Field Orders shall be in substantially the
same form as Attachment A to the General Conditions.
DESIGN-BUILD 77 2021
7.4 DISPUTES REGARDING CHANGES
No dispute, disagreement, nor failure of the parties to reach agreement regarding the amount, if any, of any
adjustment to the Contract Sum or Contract Time, shall relieve DBT from the obligation to proceed with
performance of the Design-Build Services, including, without limitation, performance of Work directed by a
Field Order or as modified by a Change Order, promptly and expeditiously. DBT shall not delay, slow,
interrupt, or suspend the performance of any Design -Build Services or any Change because of a dispute
between the parties, including, but not limited to, dispu tes pertaining to an adjustment in the Contract Sum
or Contract Time. If DBT disputes the rejection of any Change Order Request in whole or in part, DBT’s
exclusive remedy is to submit a Claim in compliance with the Dispute Resolution Procedures set forth in
Article 4 herein.
ARTICLE 8 – CONTRACT TIME
8.1 COMMENCEMENT OF THE WORK
Commencement of the Design-Build Services shall begin on the date specified in the Notice to Proceed.
8.2 PROGRESS AND COMPLETION
8.2.1 DBT agrees that the Contract Time is reasonable for performing the Design-Build Services
and that DBT is able to perform the Work within the Contract Time.
.1 The Construction Schedule may reflect a period of performance that is shorter than the
Contract Time; provided however, that the difference shall be deemed as float and nothing
in this Paragraph or in any other provision of the Contract Documents shall be construed
as creating any contractual right, express or implied, on the part of DBT to finish the Project
earlier than the Contract Time and under no circumstances shall City be liable to DBT for
any costs, damages or compensation due to the inability of DBT to complete the Design-
Build Services earlier than the Contract Time, regardless of the cause, including, without
limitation, acts or omissions (intentional or negligent) of City.
.2 DBT has included in its Proposal price the costs of all DBT and Subcontractor overhead
(direct and indirect) for the entire duration of the Contract Time. The above costs are
included in DBT’s Proposal notwithstanding DBT's anticipation of completion in fewer days
than established by the Contract Time.
.3 No increase in the Contract Sum shall be made or granted for Delay if DBT completes the
Design-Build Services before expiration of the Contract Time.
.4 No reduction in the Contract Sum shall be made nor will DBT be required to remain on the
Project Site if the Design-Build Services is completed before expiration of the Contract
Time.
.5 The Construction Manager will schedule and hold weekly progress meetings and other
meetings to be required by progress of the Work as determined by the Construction
Manager. DBT and/or DBT's designee shall be present at each meeting. DBT may also be
required to request attendance by representatives of DBT’s suppliers, manufacturers and
Subcontractors.
DESIGN-BUILD 78 2021
8.2.2 Except by agreement or instruction of City in writing, DBT shall not commence operations
on the Site or elsewhere prior to the effective date of insurance required by Article 11 to be furnished by
DBT. DBT’s obligations to commence the Design-Build Services and to complete the Design-Build Services
within the Contract Time shall not be changed by the effective date of such insurance.
8.2.3 DBT shall proceed expeditiously with adequate forces and shall achieve Substantial
Completion within the Contract Time. If City determines and notifies DBT that DBT’s progress is such that
DBT will not complete the Design-Build Services within the Contract Time, DBT shall, immediately and at no
additional cost to City, take all measures necessary, including working such overtime and additional shifts
(other than City’s normal working hours of 8:00 AM to 6:00 PM, Monday through Friday and 9:00 AM to 6:00
PM on Saturday), to ensure that the Work is Substantially Completed within the Contract Time. Upon receipt
of such notice from City, DBT shall immediately respond in writing setting forth a detailed plan for
accelerating the Work in a manner acceptable to City. DBT shall not be entitled to any reimbursement or
payment of costs, expenses or damages incurred as a result of an acceleration of the Work. City may also
take all necessary measures to prevent the need for subsequent accelerations of the Work. DBT shall
reimburse City, or City may withhold from payment due to DBT, sums expended by City to perform such
measures.
8.2.4. During unfavorable weather, wet ground or other unsuitable construction conditions, DBT
shall confine the operations to Work that will not be affected adversely by such conditions. No portion of
the Work shall be constructed under conditions which would affect adversely the quality thereof or be
detrimental to the quality of water discharges, unless special means or precautions are taken by DBT to
perform the Work in a proper and satisfactory manner.
8.3 CONSTRUCTION HOURS
Work shall be performed during the hours of 8:00 AM to 6:00 PM Monday through Friday and 9:00 AM to
6:00 PM on Saturday, unless otherwise specified in the Special Provisions or approved in writing by the City
Engineer. Construction is prohibited on Sundays and holidays defined in Section 8.4 below.
8.4 HOLIDAYS
No work may be performed on the City holidays identified:
January 1 (New Year’s Day)
Third Monday in January (Martin Luther King Day)
Third Monday in February (Washington’s Birthday)
Last Monday in May (Memorial Day)
July 4 (Independence Day)
First Monday in September (Labor Day)
Second Monday in October (Columbus Day)
November 11 (Veteran’s Day)
Fourth Thursday in November (Thanksgiving Day)
Day after Thanksgiving
December 25 (Christmas Day)
In the event that any of the aforementioned days falls on a Sunday, the following Monday shall be considered
a holiday. In the event that any of the above days falls on a Saturday, then the preceding Friday shall be
considered a holiday.
DESIGN-BUILD 79 2021
8.5 DELAY
8.5.1 DBT may request an extension of the Contract Time for an Excusable Delay or a
Compensable Delay, subject to the following:
.1 In order to avoid double counting concurrent Delays, if an Excusable Delay and a
Compensable Delay occur concurrently, the maximum extension of the Contract Time
shall be the number of days from the commencement of the first Delay to the cessation
of the Delay which ends last.
.2 If an Unexcused Delay occurs concurrently with either an Excusable Delay or a
Compensable Delay, the maximum extension of the Contract Time shall be the number
of Days, if any, by which the Excusable Delay or the Compensable Delay exceeds the
Unexcused Delay.
.3 If an Unexcused Delay occurs concurrently with both an Excusable Delay and a
Compensable Delay, the maximum extension of the Contract Time shall be the number of
Days, if any, by which the number of Days of Excusable Delay, as determined pursuant
these General Conditions, exceeds the number of Days of the Unexcused Delay.
8.5.2 As a condition precedent to DBT's right to an extension of Time adjusting the Contract Time
and the Contract Sum for Compensable Delay, DBT must provide written notice to City within ten (10) Days
of the date that DBT learned of the D elay or should have learned of the Delay in exercise of diligence and
reasonable care, setting forth:
(i) A description of the Delay;
(ii) A statement that the Delay is critical to completion; and
(iii) The probable effect of the Delay in terms of the number of Days' extension DBT
believes are required to the Contract Time.
The written notice required by this Paragraph is necessary for City to adequately monitor the progress of the
Design-build Services, to differentiate between critical and non-critical Delays, and to prioritize its actions in
a manner that is appropriately targeted to mitigate the effect of Delays. Accordingly, DBT’s failure to provide
written notice in the manner required by this Paragraph 8.5.2 shall constitute DBT’s waiver of the right to an
adjustment of the Contract Sum and Contract Time on account thereby, regardless of whether the
circumstances of the Delay may have been known or suspected by City or the Construction Manager and
that no other form of notice (including, without limitation, meeting minutes, log entries or schedule updates)
shall suffice as constituting notice to City in accordance with this Paragraph 8.5.2.
8.5.3 Adequate supporting data for a request for extension of time shall include both of the
following:
(i) All relevant scheduling data including a Fragnet, and
(ii) A detailed, event-by-event description of the impact of each event on completion of Work.
Documentary support for any related increase in the Contract Sum must include both of
the following:
(a) A detailed cost breakdown, and
(b) Supporting cost data in such form and including such information and other
supporting data as required for submission of Change Order Requests.
DESIGN-BUILD 80 2021
8.5.4 City may order Changes, whether or not resulting in Extra Work and regardless of the
extent and number of Changes, or may suspend the Design-Build Services.
8.5.5 The determination of whether a Delay is an Excusable Delay, Compensable Delay or
Unexcused Delay shall not be affected by the fact that any earlier Delay occurred, regardless of fault or
causation.
8.5.6 All time limits stated in the Contract Documents are of the essence.
8.5.7 Excusable Delay means any Delay to the path of activities that is critical to Substantial
Completion of the Work within the Contract Time caused by conditions beyond the control or
foreseeability, and without the fault or negligence of DBT or its Subcontractors, such as, but not
limited to: war, embargoes, fire, unavoidable casualties, unusual delays in transportati on, national
emergency, and stormy and inclement weather conditions that are unusual and unseasonable and
in which the Work cannot continue. Without limitation to the foregoing, the financial inability of
DBT or any Subcontractor, shall not be deemed conditions beyond DBT's control or foreseeability.
DBT may claim an Excusable Delay only if all Work on a critically scheduled activity is stopped for
more than six (6) hours of a normal eight (8) hour work day, or if three to six hours are lost in one
work day, then it may be claimed for one-half day.
8.5.7.1 Excusable Delay does not include Delay caused by weather conditions which are
normal for the location of the Project, as determined by weather records for the
preceding five (5) year period.
8.5.7.2 Excusable Delay does not include Delay caused by DBT’s failure to order
equipment and materials sufficiently in advance of the time needed for the Work.
8.5.7.3 Excusable Delay does not include Delay caused by DBT’s failure to provide
adequate notification to utility companies for connections or services necessary for the
timely performance and completion of the Work.
8.5.7.4 Excusable Delay does not include Delay caused by foreseeable conditions DBT
could have ascertained from reasonably diligent inspection of the Site and/or review of the
Contract Documents.
8.5.8 Compensable Delay means any Excusable Delay to the path of activities that is critical to
DBT’s Substantial Completion of the Work within the Contract Time, which Delay is all of the following:
(i) Solely due to acts or omissions within the City’s control, including but not limited to
Changes requested by City that involve Extra Work;
DESIGN-BUILD 81 2021
(ii) Not due, in whole or in part, to the fault or negligence or breach of DBT or any
Subcontractor; and
(iii) Not concurrent with another Excusable Delay or any Unexcused Delay.
8.5.9 Compensation for delay shall be limited to actual, direct, reasonable, and substantiated
Project costs, and shall not include home office overhead, or markup for overhe ad and profit.
ARTICLE 9 – PAYMENTS AND COMPLETION
9.1 SCHEDULE OF VALUES
Within thirty (30) Days after signing the Contract, but in any event not later than fourteen (14) Days following
receipt of the Notice to Proceed, DBT shall submit to City through the Construction Manager a Schedule of Values
reflecting cost breakdown of the Contract Sum in a form approved by the Construction Manager. The Sch edule of
Values shall itemize as separate line items the cost of each scheduled Design Services and Construction Services
activity and all other costs, including warranties, Record Documents, insurance, bonds, overhead and profit, the total
of which shall equal the Contract Sum and shall be made out in a form approved by the Construction Manager. The
Schedule of Values, when approved by City, shall become the basis for determining the cost of Design -Build Services
requested on DBT's Applications For Payment. DBT shall submit a statement based upon this breakdown, and if
required, itemized in such form and supported by such evidence as the Construction Manager may direct, showing
DBT's right to the payment claimed.
9.2 PROGRESS PAYMENT
9.2.1 City shall retain five percent (5%) of the undisputed amount due on each progress
payment, or the percentage stated in the Request for Proposals, whichever is greater, as retention to ensure
full and complete performance of the Design-Build Services. Subject to City’s right of withholding under
Paragraph 9.4.2 of these General Conditions, City agrees to pay to DBT within thirty (30) Days of receipt of a
properly submitted Application for Payment an amount equal to ninety -five percent (95%), or a lesser
amount if corresponding to a higher retention percentage, if applicable, of the sum of the following,
excepting therefrom any amounts which are disputed by City:
(i) Construction Manager’s determination of the value, expressed as a percentage of the
Contract Sum, of the Work in permanent place that has been tested and accepted as of
the end of the preceding month.
(ii) Construction Manager’s determination of the value of materials suitably stored but not
yet incorporated into the Work, subject to Paragraph 9.3.6 of these General Conditions.
(iii) Less amounts previously paid.
9.2.2 At any Time after fifty percent (50%) of the Construction Services has been determined by
Construction Manager to be completed, City may in its sole discretion, make any of the remaining progress
payments in accordance with the calculation in Paragraph 9.2.1 of these General Conditions based on one
hundred percent (100%) of City’s determination of the value of the Work in place and of stored mate rials
not yet incorporated into the Work.
9.2.3 Progress payments shall not be construed as City's Acceptance of any or all of the Design -
Build Services and shall not be a waiver of any or all rights City has under the Contract Documents.
DESIGN-BUILD 82 2021
9.3 APPLICATION FOR PAYMENT
9.3.1 At the end of each month, DBT shall submit to City an itemized Application for Payment,
requesting payment for Design-Build Services as of the end of that month that is calculated in accordance
with the formula for payment set forth in Paragraph 9.2.1 of these General Conditions. The Application for
Payment shall be prepared:
(i) Utilizing the format as designated by City or the Construction Manager.
(ii) Itemized in accordance with the Approved Schedule of Values.
(iii) Showing the results of a successful system test (for example a pressure test for gas project)
of the system installed or completed in the pay period covering the Application for
Payment.
(iv) Including such data substantiating DBT's right to payment as City may reasonably
require, such as invoices, payrolls, daily time and material records, and, if securities
are deposited in lieu of retention pursuant to Section 9.5, a certification of the market value of all
such securities as of a date not earlier than five (5) Days prior to the date of the Application for
Payment.
(v) Showing itemized amounts for Change Orders, Modifications and retention.
9.3.2 Applications for Payment shall not include requests for payment on account of increases
to the Contract Sum which have not been authorized by Change Orders or amounts DBT does not intend to
pay a Subcontractor because of a dispute or other reason.
9.3.3 If required by City, an Application for Payment shall be accompanied by all of the following:
(i) A summary showing payments that DBT will make to Design Professionals or
Subcontractors covered by such application.
(ii) Conditional waivers and releases of claims and stop notices from DBT and each
Subcontractor and Sub-subcontractor, of every Tier, listed in the current Application for
Payment covering sums requested in the current Application for Payment.
(iii) Unconditional waivers and releases of claims and stop notices, from DBT and each
Subcontractor and Sub-subcontractor, of every Tier, listed in the preceding Application for
Payment covering sums disbursed pursuant to that preceding Application for Payment.
9.3.4 DBT warrants that, upon submittal of an Application for Payment, all Design-Build Services
for which Certificates for Payment have been previously issued and payment has been received from City,
shall be free and clear of all claims, stop notices, security interests and encumbrances in favor of DBT or
Subcontractors or other persons or firms entitled to make claims by reason of having provided labor,
materials or equipment relating to the Design-Build Services.
9.3.6 At the sole discretion of City, the Construction Manager may approve for inclusion in DBT’s
Application for Payment the cost of materials to be incorporated in the Work but not yet incorporated in the
Work and already delivered and suitably stored either at the Site or at some other appropriate location
acceptable to City. In such case, DBT shall furnish evidence satisfactory to City:
(i) Of the cost of such materials.
DESIGN-BUILD 83 2021
(ii) That such materials are under the exclusive control of DBT, or if not, that title to the
materials is in City’s name, free of any lien or encumbrance and that the materials are safely and
suitably stored in a bonded warehouse with appropriate insurance coverage satisfactory to City to
cover any Loss.
(iii) Photographs of such materials if requested by the City.
Any payment pursuant to this Paragraph shall not be construed as an inspection or acceptance of the
materials nor shall it relieve DBT of its continuing and sole responsibility for the care and protection of such
materials nor shall it relieve DBT from sole responsibility for any loss or damage to the materials from any
cause whatsoever nor act as a waiver of the right of City to require strict fulfillment by DBT with all terms of
the Contract Documents.
9.3.7 City shall have the right, in its sole discretion, to make payments of monies owing to DBT
by means of direct payment to Subcontractors of any unpaid work performed by any Subcontractor or by
joint payment to DBT and to Subcontractors. The making of such payments shall not be construed as the
assumption of any obligation on the part of City or as creating any contractual relatio nship between City and
any Subcontractor and shall not relieve DBT of any of its obligations under the Contract Documents.
9.3.8 If the Contract Sum includes an Allowance from the Proposal and the cost of performing
the Design-Build Services covered by that Allowance is greater or less than the amount of that Allowance,
the Contract Sum shall be increased or decreased accordingly.
9.4 CERTIFICATE FOR PAYMENT
9.4.1 Approval of all or any part of an Application for Payment may be withheld, a Certificate For
Payment may be withheld or all or part of a previous Certificate For Payment may be nullified and that
amount withheld from a current Certificate For Payment in order to protect City against actual or threatened
loss as a result of any of the following:
(i) Defective Work not remedied or failure to pass required system tests.
(ii) Third-party claims against DBT or City arising from the acts or omissions of DBT, its Design
Professionals or Subcontractors.
(iii) Stop notices.
(iv) Failure of DBT to make timely payments due Subcontractors for material or labor.
(v) A reasonable doubt that the Design-Build Services can be completed for the balance of the
Contract Sum then unpaid.
(vi) Damage to City or Separate Contractor for which DBT is responsible.
(vii) Reasonable evidence that the Project will not be completed within the Contract Time.
(viii) Failure of DBT to maintain and update As-Built or Record Documents.
(ix) Failure of DBT to timely submit Construction Schedules, reports, Submittals or their
updates as required by the Contract Documents.
(x) Performance of Work by DBT without Approved Submittals.
DESIGN-BUILD 84 2021
(xi) Liquidated or actual damages assessed in accordance with the Design-Build Contract.
(xii) Any other failure of DBT to perform an obligation under the Contract Documents.
9.4.2 Subject to the withholding provisions of Paragraph 9.4.2 and when any or all of the noted
deficiencies or others have been removed, City s hall pay DBT the amount set forth in the Certificate for
Payment in accordance with its normal disbursement procedures.
9.4.3 Neither City nor the Construction Manager shall have an obligation to pay or to see to the
payment of money to a Design Professional or Subcontractor, except as may otherwise be required by Law.
9.4.4 Neither a Certificate for Payment nor any payment (progress or final) shall be construed
as a waiver of any rights arising from Defective Work.
9.4.5 City may, at any time, require that payment of any undisputed amount is contingent upon
DBT furnishing City with a release of all claims against City which are related to those undisputed payments.
Any disputed amount may be expressly excluded from such release.
9.4.6 The City may require a tri-party agreement among the City, the DBT, and the DBT's surety
as a condition to making full progress payments if the Work is behind schedule, in order to avoid exoneration
of the surety bond or impairment of the surety's security.
9.5 DEPOSIT OF SECURITIES IN LIEU OF RETENTION AND DEPOSIT OF RETENTION INTO ESCROW
9.5.1 At the request and expense of DBT, a substitution of securities may be made as found in
Government Code Section 16430 and as authorized by the Public Contract Code Section 22300 in lieu of
monies retained by City under Section 9.2 of these General Conditions to ensure performance under the
Contract Documents. Securities equivalent in value to the retention amount required by the Contract
Documents for each Certificate For Payment shall be deposited by DBT with a state or federally chartered
bank in the State of California ("Escrow Agent"), which shall hold such sec urities pursuant to the escrow
agreement referred to in Paragraph 9.5.3 until Final Payment is due in accordance with Section 9.8.
Securities shall be valued as often as conditions of the securities market warrant, but in no case less than
once per month. DBT shall deposit additional securities so that the current market value of the total of all
deposited securities shall be at least equal to the total required amount of retention.
9.5.2 Alternatively to Paragraph 9.5.1 of these General Conditions, and at the request and
expense of DBT, City shall deposit retention directly with the Escrow Agent. DBT may direct the investment
of such deposited retention into interest bearing accounts or securities, and such deposits or securities shall
be held by the Escrow Agent upon the same terms provided for securities deposited by DBT.
9.5.3 A prerequisite to the substitution of securities in lieu of retention or the deposit of
retention into escrow shall be the execution by DBT, City, and the Escrow Agent of an Escrow Contract for
Deposit of Securities in Lieu of Retention and Deposit of Retention forms provided by City. The terms of such
escrow agreement are incorporated into the requirements of this Section 9.5.
9.5.4 Release of funds or securities from escrow to DBT shall be made upon receipt by Escrow
Agent of written notification by City that the DBT has complied with all requirements and procedures
applicable to the Contract.
9.5.5 City has the right to draw upon the securities in the event of default by DBT, as
determined by City pursuant to the provisions of these Contract Documents. Within seven (7) days
following receipt of the City’s written notice of such default, Escrow Agent must immediately convert the
securities to cash and distribute the cash as instructed by City.
DESIGN-BUILD 85 2021
9.6 BENEFICIAL OCCUPANCY
9.6.1 City reserves the right, at its option and convenience, to occupy or otherwise make use of
all or any part of the Work, at any time prior to issuing the Certificate of Substantial Completion, upon seven
(7) Days’ notice to DBT. Such occupancy or use is herein referred to as "Beneficial Occupancy." Beneficial
Occupancy shall be subject to the following conditions:
.1 City, Design Consultant and Construction Manager will make an inspection of the
portion of the Work to be beneficially occupied and prepare a list of items to be
completed or corrected prior to issuing the Certificate of Substantial Completion.
.2 Beneficial Occupancy by City shall not be construed by DBT as Acceptance by City
of that portion of the Work which is to be occupied. City may, however, at its sole
option, relieve DBT of Contract requirements to protect Work being beneficially
occupied by City where such relief is specifically designated by City in writing.
.3 Beneficial Occupancy by City shall not constitute a waiver of City’s right to assess liquidated
damages as otherwise provided in these Contract Documents.
.4 DBT shall provide, in the areas beneficially occupied and on a continual basis (if required),
utility services, heating, and cooling for systems which are in operable condition at the
time of Beneficial Occupancy. All responsibility for the operation and maintenance of
equipment shall remain with DBT while the equipment is so operated. DBT shall submit to
City an itemized list of each piece of equipment so operated with the date operation
commences.
.5 The Guarantee to Repair Periods, as defined in Section 12.2 of these General
Conditions, will commence upon the first dates of actual occupancy or use of portions of
the Work to which the City has taken Beneficial Occupancy and to equipment or
systems fully utilized.
.6 City shall pay all normal operating and maintenance costs resulting from its use of
equipment in areas beneficially occupied.
.7 City shall pay all utility costs which arise out of the Beneficial Occupancy.
.8 DBT shall not be responsible for providing security in areas beneficially occupied.
.9 City shall use its best efforts to prevent its Beneficial Occupancy from interfering with
the conduct of DBT's remaining Work.
.10 DBT shall not be required to repair damage caused by City in its Beneficial
Occupancy.
.11 Except as provided in this Section 9.6 of these General Conditions, there shall be no
added cost to City due to Beneficial Occupancy.
.12 DBT shall continue to maintain all insurance required by the Contract in full force
and effect.
DESIGN-BUILD 86 2021
9.7 SUBSTANTIAL COMPLETION
9.7.1 When DBT gives notice to City that the Work, or portion thereof designated by City for
separate delivery, is Substantially Complete, unless City determines that the Work or designated portion
thereof is not sufficiently complete to warrant an inspection to determine Substantial Completion, Design
Professional or Construction Manager will inspect the Work, or such designated portion thereof, and prepare
and give to DBT a comprehensive list of items, if any, to be completed or corrected before establishing
Substantial Completion. DBT shall promptly proceed to complete and correct items on the list. Failure to
include an item on such list does not alter the responsibility of DBT to complete all Wor k in accordance with
the Contract Documents. City will then make a further inspection to determine whether the Work or such
designated portion thereof is Substantially Complete. If City's inspection discloses any item, whether or not
included on the list, which must be completed or corrected before Substantial Completion, DBT shall, before
City’s issuance of the Certificate of Substantial Completion, complete or correct such item. DBT shall then
submit a request for another inspection by City to determin e Substantial Completion.
9.7.2 When City determines that the Work or such designated portion thereof is Substantially
Complete, City will prepare a Certificate of Substantial Completion on City's form, which when signed by City
shall establish the date of Substantial Completion and the responsibilities of City and DBT for security,
maintenance, heat, utilities, insurance, completion of minor items and correction or repair of the Work or
such designated portion thereof. Unless otherwise provided in the Certificate of Substantial Completion, the
Guarantee To Repair Period for the Work (which is defined in Article 12, Section 12.2.1), or such designated
portion thereof covered by the Certificate of Substantial Completion, excluding any systems provided by
Separate Contractors which are not yet fully operational or accepted by City, shall commence on the date of
Substantial Completion of the Work or such designated portion thereof. The Guarantee To Repair Period for
systems which become fully operational or Accepted subsequent to Substantial Completion will begin on the
later of the date they are operational or Acceptance of the Project by City.
9.8 FINAL COMPLETION AND FINAL PAYMENT
9.8.1 Upon receipt of notice from DBT that the Work is ready for final inspection, City will make
such inspection. City will file a notice of completion with the County Clerk within fifteen (15) Days after
Acceptance by City. Thirty-five (35) Days after filing the notice of completion, the City may release the final
retention provided the requirements in this paragraph are met.
9.8.2 Without limitation to any other provisions of the Contract Documents, before Final
Payment (including release of undisputed retention) for Design-Build Services under this Design-Build
Contract is authorized, the DBT shall have completed the Design -Build Services in accordance with the
Contract Documents and all applicable standards of care and the following requirements of the Co ntract
Documents must be fulfilled by DBT:
(i) The submittal of an application for Final Payment, together with supporting
documentation, as required by Section 9.3 of these General Conditions. By submitting an
application for final payment, Contractor warrants that all workers and persons employed,
all firms supplying the materials, and all Subcontractors have been paid in full with the
exception of any Subcontractor retention payments that are not yet due pursuant to Public
Contract Code section 7107(d) or (e), and that there are no bills outstanding against the
Work for either labor or materials, except certain items, documented as disputed claims
or pending stop payment notices.
DESIGN-BUILD 87 2021
(ii) Completion and delivery by DBT to City of all required written guara ntees, warranties,
operation and maintenance manuals, As-Built Documents and other Record Documents,
drawings, schedules, certificates and such other documents as required by the Contract
Documents. All approvals and acceptances shall have been made pursu ant to Applicable
Code Requirements.
(iii) Completion of all construction Work, including corrective and punch list items, in a manner
acceptable to City. All rubbish, tools, scaffolding and surplus materials and equipment have
been removed from the Site.
(iv) Submission of conditional releases of claims and stop notices from DBT and its
Subcontractors with no reservation of rights for disputed claims or amounts.
(v) If a Stop Notice(s) is received by the City after the Notice of Completion has been filed and
prior to Final Payment, the City may, at its election, withhold the amount specified in the
Stop Notice plus reasonable cost of any litigation pursuant to Civil Code Section 9358 from
the Final Payment or permit the DBT to supply a stop notice release bond in the amount
of 125% of the stop notice amount from a Surety acceptable to the City.
9.8.3 For purposes of determining the last day for submission of a Claim pursuant to Article 4,
the date of Final Payment is deemed to be the date that the City acts to release undisputed retention as part
of Final Payment, either by transmitting a written request to the retention Escrow Agent or by transmitting
a payment directly to DBT, whichever occurs first. Acceptance of Final Payment by DBT shall constitute a
complete waiver of all Claims, except those previously made in writing and identified by DBT as unsettled at
the time of the Application for Final Payment.
9.8.4 DBT shall pay or cause to be paid to Subcontractors, the amount stated in the conditional
releases within five (5) Days after receipt of the Final Payment, and shall promptly thereafter furnish
evidence of such payment to City.
ARTICLE 10 – PROTECTION OF PERSONS AND PROPERTY
10.1 SAFETY PRECAUTIONS AND PROGRAMS
10.1.1 DBT shall be solely and completely responsible for initiating, maintaining and supervising
all safety precautions and programs on the Site in connection with the performance of the Design -Build
Contract, including safety of all persons for the duration of the Work, on a 24 -hour day, 7-day week basis.
10.1.2 Prior to the start of construction, DBT shall submit to Construction Manager a copy of DBT's
safety program for the Project. A copy of this program shall be maintained on Site at all times. The safety
program shall include, at a minimum:
(i) Management policy, illness and injury prevention program (as described below).
(ii) Safety meetings.
(iii) Accident investigation.
(iv) Basic accident causes.
(v) Safety inspection check list.
DESIGN-BUILD 88 2021
(vi) Fire prevention and control.
(vii) Report forms.
(viii) Employee safety manual.
10.2 SAFETY OF PERSONS AND PROPERTY
10.2.1 The DBT shall be solely and completely responsible for job site conditions and safety during
the life of the Contract. This obligation shall include the safety of all persons within or affected by the line
of construction and all private property affected by the work
10.2.2 At its sole expense, DBT shall furnish, erect and maintain such temporary fences,
barricades, signs, lights, ramps, and temporary construction of whatever nature as may be necessary to
provide access to abutting properties and to warn the public of the work in progress and of any dangerous
conditions as may exist due to the work in progress. The DBT's responsibility shall be continuous and not be
limited to working hours or days, and shall not cease until formal acceptance of the work by the City except
that if the City should make partial acceptance of the work, the DBT's responsibility for t he portion of the
work so accepted shall thereupon cease, except for latent errors in the work or faulty construction.
10.2.3 The duty of the Construction Manager, its agents, or employees, to conduct construction
review of the DBT's performance and operations is not intended to, and does not include review of or
responsibility for the adequacy of the DBT's safety measures and pr ocedures in, on, or adjacent to the site
of the Work.
10.2.4 DBT shall protect persons and property on the Site at all times. DBT shall have available at
the Site copies or suitable extracts of "Construction Safety Orders" and "General Industrial Safe ty Orders"
issued by the California Division of Industrial Safety. DBT shall comply with provisions of these and all other
applicable laws, ordinances, and regulations.
10.2.5 DBT shall immediately respond to notice from City of unsafe conditions, shal l take
adequate precautions for safety of persons on the Site, and shall provide adequate protection to prevent
injury or Loss to the following:
(i) Employees involved in the Work and other persons who may be affected thereby.
(ii) The Work in place and materials and equipment to be incorporated therein, whether in
storage on or off the Site, under care, custody, or control of DBT or Subcontractors.
(iii) Other property at the Site and adjoining property(ies).
10.2.6 DBT shall promptly remedy damage and Loss (other than damage or Loss insured under
property insurance required by the Contract Documents) to property caused in whole or in part by DBT or
its Subcontractors or anyone for whose acts they may be liable and for which DBT is responsible.
10.2.7 DBT shall erect and maintain, as required by existing conditions and performance of the
Work, adequate safeguards for safety and protection of persons and property, including providing adequate
lighting and ventilation, posting danger signs and other warnings against hazards, promulgating safety
regulations and notifying owners and users of adjacent sites and utilities.
10.2.8 When use or storage of hazardous materials, equipment, or unusual methods are
necessary for execution of the Work, DBT shall exercise the utmost care and carry on such activities only
under the supervision of properly qualified personnel.
DESIGN-BUILD 89 2021
10.2.9 DBT shall be required to provide at the Site a member of DBT's organization, typically the
Superintendent, whose responsibility it shall be to provide instruction to persons present on the Site about
prevention of accidents and overall jobsite safety. DBT shall notify City in writing if DBT replaces the person
responsible for safety.
10.2.10 DBT shall be responsible for locating, providing, and coordinating the storage and staging
of materials and equipment on-Site and off-Site and shall not load/store or permit any part of the Work on
the Site to be loaded/stored so as to endanger the safety of persons or property.
10.2.11 DBT shall protect its materials and the Work from damage in a manner satisfactory to City
and shall make good, without charge to City, all damage due to negligence in providing proper protection.
10.2.12 DBT shall take necessary precautions to guard against and eliminate possible fire hazards
and to prevent damage to the Work, building materials, equipment, temporary field offices, storage sheds
and public and private property.
10.2.13 DBT shall not permit the possession or use of alcohol or co ntrolled substances on the Site.
10.2.14 Explosives may be used only when authorized in writing by City. Explosives shall be
handled, used and stored in accordance with applicable regulations.
10.3 EMERGENCIES
In an emergency affecting the safety of persons or property, DBT shall immediately act to prevent or
minimize damage, injury or loss. DBT shall immediately notify the Construction Manager and City, which
notice may be oral, followed within twenty-four (24) hours after occurrence of the incident by written
confirmation, of the occurrence of such an emergency and DBT's action.
10.4 TRENCH SAFETY
In accordance with the California Labor Code, where the work will involve trenches five feet or more in depth
and the estimated or Proposal cost of excavation is in excess of $25,000, the DBT shall submit to and receive
from the City of Palo Alto, or its designee, the acceptance of a detailed plan showing design of shori ng,
bracing, sloping, or other provisions to be made for worker protection from the hazards of caving ground.
Such plan shall be submitted at least five (5) days before the DBT intends to begin work on the trenches.
If such plan varies from the shoring system standards established by the Construction Safety Orders of the
State of California Division of Industrial Safety, the plan shall be prepared by a registered civil or structural
engineer.
The DBT shall not use shoring, sloping, or protective systems less effective than that required by the
Construction Safety Orders of the Division of Industrial Safety.
The City shall not be responsible or liable for the safety of such trenching or trenching plans.
Whenever the work called for on these plans or Contract Documents involves the construction of a pipeline,
sewer, sewage disposal system, boring and jacking pits, or similar trenches or excavations, which are five
feet or deeper, DBT shall include in its Proposal Price, the cost of design and construction of adequate
sheeting, shoring, and bracing, or equivalent method, for the protection of life or limb, which shall conform
to applicable safety orders.
DESIGN-BUILD 90 2021
ARTICLE 11 – INSURANCE AND BONDS
11.1 DBT'S INSURANCE
11.1.1 DBT, at its sole expense, shall for the term of the Contract obtain and maintain insurance
in the amounts for the coverage specified below, or as modified by the Special Provisions (if applicable),
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.
REQUIRED TYPE OF COVERAGE REQUIREMENT
MINIMUM LIMITS
EACH
OCCURRENCE AGGREGATE
YES
YES
WORKER’S COMPENSATION
EMPLOYER’S LIABILITY
STATUTORY
STATUTORY STATUTORY STATUTORY
YES
GENERAL LIABILITY, INCLUDING
PERSONAL INJURY, BROAD
FORM PROPERTY DAMAGE
BLANKET CONTRACTUAL, AND
FIRE LEGAL LIABILITY
BODILY INJURY
PROPERTY DAMAGE
BODILY INJURY & PROPERTY DAMAGE
COMBINED.
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
YES AUTOMOBILE LIABILITY,
INCLUDING ALL OWNED, HIRED,
NON-OWNED
BODILY INJURY
- EACH PERSON
- EACH OCCURRENCE
PROPERTY DAMAGE
BODILY INJURY AND PROPERTY DAMAGE,
COMBINED
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
$1,000,000
YES
PROFESSIONAL LIABILITY,
INCLUDING, ERRORS AND
OMISSIONS, MALPRACTICE
(WHEN APPLICABLE), AND
NEGLIGENT PERFORMANCE
ALL DAMAGES $1,000,000
YES THE CITY OF PALO ALTO IS TO BE NAMED AS AN ADDITIONAL INSURED: DBT, AT ITS SOLE COST AND EXPENSE, SHALL
OBTAIN AND MAINTAIN, IN FULL FORCE AND EFFECT THROUGHOUT THE ENTIRE TERM OF ANY RESULTANT AGREEMENT,
THE INSURANCE COVERAGE HEREIN DESCRIBED, INSURING NOT ONLY DBT AND ITS
SUBCONTRACTORS/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 CONTRACTUAL LIABILITY ENDORSEMENT PROVIDING INSURANCE COVERAGE FOR DBT’S AGREEMENT
TO INDEMNIFY CITY.
II. DBT MUST SUBMIT CERTIFICATES(S) OF INSURANCE EVIDENCING REQUIRED COVERAGE AT
THE FOLLOWING URL: https://www.planetbids.com/portal/portal.cfm?CompanyID=25569
III. ENDORSEMENT PROVISIONS WITH RESPECT TO THE INSURANCE AFFORDED TO ADDITIONAL INSUREDS:
A. PRIMARY COVERAGE
DESIGN-BUILD 91 2021
WITH RESPECT TO CLAIMS ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED, INSURANCE
AS AFFORDED BY THIS POLICY IS PRIMARY AND IS NOT ADDITIONAL TO OR CONTRIBUTING WITH ANY
OTHER INSURANCE CARRIED BY OR FOR THE BENEFIT OF THE ADDITIONAL INSUREDS.
B. CROSS LIABILITY
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 DBT 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 DBT SHALL PROVIDE CITY AT LEAST A TEN (10) DAY WRITTEN NOTICE BEFORE
THE EFFECTIVE DATE OF CANCELLATION.
EVIDENCE OF INSURANCE AND OTHER RELATED NOTICES ARE REQUIRED TO BE FILED WITH THE
CITY OF PALO ALTO AT THE FOLLOWING URL:
HTTPS://WWW.PLANETBIDS.COM/PORTAL/PORTAL.CFM?COMPANYID=25569
OR
HTTP://WWW.CITYOFPALOALTO.ORG/GOV/DEPTS/ASD/PLANET_BIDS_HOW_TO.ASP
11.1.2 DBT shall furnish City with the certificates of insurance and with original endorsements
affecting coverage required under this Contract within ten (10) business days following issuance of the Notice
of Award. The certificates and endorsements for each insurance policy shall be signed by a person who is
authorized by that insurer to bind coverage on its behalf.
11.1.3 Design Professionals and Subcontractors: DBT shall include all Subcontractors and as
insureds under its policies, or shall furnish separate certificates and endorsements for each Design
Professional or Subcontractor in compliance with this Article. All coverages for Design Build Professional or
Subcontractors shall be subject to all of the requirements stated herein.
11.1.4 At the request of City, DBT shall submit to City copies of the policies obtained by DBT. In
the event DBT does not comply with these insurance requirements, City may, at its option, provide insurance
coverage to protect City; and the cost of such insurance shall be paid by DBT and may be deducted from the
Contract Sum.
11.1.5 The requirements of this Section may only be modified in writing by the City’s Risk
Manager.
DESIGN-BUILD 92 2021
11.2 BOND REQUIREMENTS
11.2.1 Within ten (10) Days after the issuance of the Notice of Award and prior to commencing
Work on the Project, DBT shall file with City good and sufficient Labor and Material Payment and
Performance Bonds each in the amount of 100% of the Contract Sum for Construction Services. The bonds
shall be in substantially the same form as contained in this RFP Packet or such other form as required by City
and shall be signed by both DBT and Surety and properly notarized. Should any bond required hereunder or
any surety on such bond become or be determined by City to be insufficient, it shall be replaced within ten
(10) Days by a bond that fully complies with the requirements of this Section 11.2. No further payments to
DBT for Work performed shall be made or due until DBT has fully complied with the requirements of this
Section 11.2.
11.2.2 The Payment Bond shall remain in effect at least until the time for filing a claim on a stop
notice has expired pursuant to the California Civil Code. The Performance Bond provided by DBT shall remain
in effect for the duration of the period of all warranties required by the Contract Documents and shall assure
faithful performance of all DBT’s obligations under the Contract Documents, including, without limitation,
all obligations that survive Final Completion or termination or expiration, such as, but not limited to DBT’s
warranty and indemnity obligations.
11.2.3 DBT shall promptly furnish such additional security as may be required by City to protect
its interests and those interests of persons or firms supplying labor or materials to the Work.
11.2.4 Surety companies used by DBT shall be, on the date the Contract is signed by City and at
all times while the bonds are in effect, either California Admitted Sureties or listed in the latest published
United States Treasury Department list of Companies Holding Certificates of Authority as Acceptable Sureties
on Federal Bonds and as Acceptable Reinsuring Companies and either have a current A.M. Best A VIII rating
or be an admitted surety that meets the requirements of Code of Civil Procedure Section 995.660.
11.2.5 The premiums for all Bonds are included in the Contract Sum and shall be paid by DBT.
11.2.6 The bonds shall name City as obligee.
11.2.7 Change Orders, Field Orders, Modifications, Changes in the Work and adjustments in the
scope of Work Contract Sum or Contract Time shall in no way release or exonerate DBT or its sureties from
their obligations and notice thereof shall be waived by such sureties.
11.2.8 City and the Construction Manager shall have the right to communicate with DBT’s sureties
with respect to matters that are related to DBT’s performance of its obligations under the Contract
Documents. DBT shall be provided with a copy of all such written communications. Such communications
shall not create or be interpreted as creating any contractual relationship between City or the Construction
Manager and any such surety.
11.2.9 In the event of a significant (15% or more) increase in Contract Sum, replacement bonds
totaling the new Contract Sum may be required by City.
DESIGN-BUILD 93 2021
ARTICLE 12 – DEFECTIVE WORK
12.1 UNCOVERING OF WORK
12.1.1 If a portion of the Work is covered contrary to Construction Manager’s request or direction,
or contrary to the requirements of the Contract Documents, it must, if required in writing by City, be
uncovered for City's observation and be replaced at DBT's expense without adjustment of the Contract Time
or the Contract Sum.
12.1.2 If a portion of the Work has been covered, which is not required by the Contract
Documents to be observed or inspected prior to its being covered and which City has not specifically
requested to observe prior to its being covered, City may request to see such Work and it shall be uncovered
and replaced by DBT. If such Work is in accordance with the Contract Documents, the costs of uncovering
and replacing the Work shall be added to the Contract Sum by Change Order; and if the uncovering and
replacing of the Work extends the Contract Time, an appropriate adjustment of the Contract Time shall be
made by Change Order. If such Work is not in accordance with the Contract Documents, DBT shall pay such
costs and shall not be entitled to an adjustment of the Contract Time or the Contract Sum.
12.2 CORRECTION OF DEFECTIVE WORK AND GUARANTEE TO REPAIR PERIOD
12.2.1 In addition to any specific warranty mentioned in these Contract Documents, the DBT shall
guarantee that all material, apparatus, equipment, and workmanship used, installed, or incorporated in the
work is free from defects, and agrees to replace at no expense to the City any and all defective Work or
materials which become evident within one (1) year (“Guarantee To Repair Period”), unless a longer period
of time is specified in the Special Provisions and technical specifications, commencing as follows:
(i) For any Work not described as incomplete in the Certificate of Substantial Completion,
on the date of Substantial Completion.
(ii) For space beneficially occupied or for separate systems fully utilized prior to Substantial
Completion pursuant to Section 9.6, from the first date of such Beneficial Occupancy or
actual use, as established an appropriate written authorization for Beneficial Occupancy.
(iii) For all Work other than (I) or (ii) above, from the date of filing of notice of completion
pursuant to Section 9.8 above.
12.2.2 DBT shall (i) correct Defective Work that becomes apparent during the progress of the
Work or during the Guarantee To Repair Period and (ii) replace, repair, or restore to City's satisfaction any
other parts of the Work and any other real or personal property which is damaged or destroyed as a result
of Defective Work or the correction of Defective Work, without any expense whatsoever to City. City will
give notice of observed Defective Work with reasonable promptness, an d DBT shall promptly commence
such correction, replacement, repair or restoration upon notice from City, but in no case later than seven (7)
Days after receipt of such notice. DBT shall diligently and continuously prosecute such correction to
completion. DBT shall bear all costs of such correction, replacement, repair, or restoration and all Losses
resulting from such Defective Work, including additional testing, inspection and compensation for City's or
City's services and expenses. DBT shall perform corrective Work at such times that are acceptable to City
and in such a manner as to avoid, to the extent practicable, disruption to City's activities. Ordinary wear and
tear, unusual abuse or neglect are excepted from this guarantee. DBT shall notify City upon completion of
repairs.
12.2.3 If immediate correction of Defective Work is required for life safety or the protection of
property or, if in the opinion of City, Defective Work creates a dangerous condition or requires immediate
corrections or attention to prevent further Loss to City or to prevent interruption of operations of City, City
will attempt to give immediate notice to DBT. If DBT cannot be contacted or does not comply with City's
DESIGN-BUILD 94 2021
request for correction within a reasonable time as determined by City, City or Separate Contractors under
City's direction, may, notwithstanding the provisions of this Article, proceed to make such corrections or
provide such attention; and the costs of such correction or attention shall be charged against DBT. Suc h
action by City will not relieve DBT of the guarantees provided in this Article or elsewhere in the Design-Build
Contract. DBT shall replace, repair or restore to City's satisfaction any other parts of the Work and any other
real or personal property, which is damaged or destroyed as a result of such Defective Work or the correction
of such Defective Work.
12.2.4 DBT shall promptly remove from the Site those portions of the Work and materials which
are not in accordance with the Contract Documents and which are neither corrected by DBT nor accepted
by City.
12.2.5 If DBT fails to commence correction of Defective Work within seven (7) Days as required in
Section 12.2.3 after notice from City or fails to diligently prosecute such correction to completion, City may
correct the Defective Work in accordance with Section 2.4; and, in addition, City may remove the Defective
Work and store salvageable materials and equipment at DBT's expense.
12.2.6 If DBT fails to pay the costs of such removal and storage as required by Paragraphs 12.2.4
and 12.2.5 within seven (7) Days after written demand, City may, without prejudice to other remedies, sell
such materials at auction or at private sale or otherwise dispose of such material. DBT shall be entitl ed to
the proceeds of such sale, if any, in excess of the costs and damages for which DBT is liable to City, including
compensation for City's services and expenses. If such proceeds of sale do not cover costs and damages for
which DBT is liable to City, the Contract Sum shall be reduced by such deficiency. If there are no remaining
payments due DBT or the remaining payments are insufficient to cover such deficiency, DBT shall promptly
pay the difference to City.
12.2.7 DBT's obligations under this Article are in addition to and not in limitation of its warranty
under Section 3.5 or any other obligation of DBT under the Contract Documents. Enforcement of DBT's
express warranties and guarantees to repair contained in the Contract Documents shall be in a ddition to and
not in limitation of any other rights or remedies City may have under the Contract Documents or at law or in
equity for Defective Work. Nothing contained in this Article shall be construed to establish a period of
limitation with respect to other obligations of DBT under the Contract Documents, which may be longer
specified periods. Establishment of the Guarantee To Repair Period relates only to the specific obligation of
DBT to correct the Work and in no way limits either DBT's liability f or Defective Work or the time within
which proceedings may be commenced to enforce DBT's obligations under the Contract Documents.
12.3 ACCEPTANCE OF DEFECTIVE WORK
Notwithstanding the provisions of Section 12.2 of these General Conditions, City shall have the option, at its
sole discretion and by notice to DBT, to accept Defective Work instead of requiring its removal or correction,
in which case the Contract Sum shall be reduced by an amount equal to the difference between the value to
City the Work would have had were it complete, correct and in conformity with the Contract Documents and
the value to City of such Defective Work. Such option shall be exercised solely by notice to DBT and shall not
be implied from any act or omission by City or Construction Manager. If there are no remaining payments
of the Contract Sum to be made to DBT, or if the remaining payments and retention are insufficient to cover
the amount of the reduction of the Contract Sum, DBT shall promptly pay to City the amount of any such
deficiency.
ARTICLE 13 – STATUTORY REQUIREMENT
DESIGN-BUILD 95 2021
13.1 STATE LABOR LAW
DBT, its agents, and employees shall be bound by and comply with all applicable provisions of the Labor Code
and such federal, state and local laws which affect the conduct of the Work. If prevailing wages are required
for this Project, copies of the prevailing rate of per diem wages may be obtained at the Department of
Industrial Relations’ website: http://www.dir.ca.gov/
13.2 WORK DAY
Eight (8) hours labor constitutes a legal day’s work. DBT shall not permit any worker to labor more than
eight (8) hours during any one (1) Day or more than forty (40) hours during any one (1) calendar week, unless
overtime is paid pursuant to Labor Code Section 1815 or except as otherwise permitted by law. DBT shall
forfeit to City, as a penalty, twenty-five dollars ($25.00) for each worker employed in the execution of this
Design-Build Contract by DBT, or any Subcontractor, for each Day during which such worker is required or
permitted to Work more than eight (8) hours in any one (1) Day and forty (40) hours in any one (1) calendar
week in violation of the terms of this Paragraph or in violation of the provisions of any law of the State of
California, including but not limited to Labor Code Sections 1810 through 1815. Such forfeiture amounts
may be deducted from the Contract Sum. DBT and each Subcontractor shall keep, or cause to be kept, an
accurate record showing the actual hours worked each Day and each calendar week by each worker
employed on the Project, which record shall be kept open at all reasonable hours to the inspection of City,
its officers and agents, and to the inspection of the appropriate enforcement agency or representative and
the State of California.
ARTICLE 14 – JOB SITE NOTICES AND COMPLIANCE MONITORING
14.1 LABOR PROVISIONS
As required by California Labor Code section 1771.4(a)(1) and (a)(2), the City provides notice to all contractors
and subcontractors that the Project that is the subject of the RFP and the Design-Build Contract, is a public
works project, the DBT is required to post all job site notices prescribed by law or regulation, and the DBT is
subject to compliance monitoring and enforcement by the Department of Industrial R elations (DIR).
DESIGN-BUILD 96 2021
FIELD ORDER
CITY OF PALO ALTO
DEPARTMENT OF PUBLIC WORKS
_____________________________ Project
This Field Order, issued pursuant to Article 7 of the Contract General Conditions directs and authorizes DBT to proceed with the
Work described below. Upon receipt of this Field Order, DBT shall, within a reasonable time, proceed with the Work described in
the Field Order. Unless otherwise stated below, this Field Order shall not be construed as an acknowledgment by City that th e
Work described constitutes a Change or Extra Work. If DBT disputes the proposed basis or amount of adjustment to the Contract
Sum or Contract Time, it may request to change the disputed portions of this Field Order by submitting a Change Order Request
within ten (10) Days following issuance of this Field Order. Failure by DBT to submit a timely Change Order Request seeking
modification of the terms of this Field Order shall be deemed full acceptance of and agreement to all of the terms herein, an d a
release and waiver of any right to subsequently dispute any or all of the terms of this Field Order.
Project Number: Field Order Number: XXX
Contract Number: Issuance Date: __/__/____
DBT's Name: Prepared by:
Description of Work:
Title: __________ Ref:
1.
City has determined that the above Work:
___ is Extra Work
___ is not Extra Work
City has determined that DBT is:
__not entitled to an extension of time
__ entitled to an extension of ___ days
Basis of Extra Work Cost:
Unit Cost*
Lump Sum: $_______________
Time and Materials*
Other*
*The Contract Sum will be [increased][decreased] by an amount not
to exceed: $____________________________
1. Consultant shall sign prior to DBT and return to City. Indicate N/A
if not applicable.
Consultant Approval:
Title: Senior Project Manager
Date:
2. DBT shall sign and return to City for City approval signatures.
DBT Approval:
Title: Project Manager
3. Signature required on all Field Orders.
City Approval:________________________
Title: Project Manager
Date: ________________________________ Date:________________________________
4. Division Head signature required for Field Orders exceeding
$15,000.
City Approval:
Title: Assistant Director of Public Works
5. Department Head signature required for Field Orders exceeding
$25,000.
City Approval
Title: Director of Public Works
Date:________________________________ Date:_______________________________
Distribution: [] DBT [] Division Head [] File
[] Consultant [] Project Manager
[] Inspector
• CITY OF
PALO
ALTO
DESIGN-BUILD 97 2021
CHANGE ORDER REQUEST
CITY OF PALO ALTO
DEPARTMENT OF PUBLIC WORKS
Contract Change Order Request
Project Title: Project No.:
Contract Number: Date:
DBT: Change Order
Request No.:
Description of Change Order Request (Attach additional sheets as needed)
Reason for Change Order Request:
Description of Work to be Performed:
Requested Change to Contract Sum:
❑ No cost change: N/A
❑ Increase cost by $ __________
❑ Decrease cost by $ __________
Request for Extension of Contract Time (check
one):
❑ No Change to Contract Time
❑ Time Extension Requested for ___ days*
o ___ days Excusable Delay
o ___ days Compensable Delay
❑ Decrease time by _ days
* Include all information and documentation required by Section
8.5 of the Contract General Conditions
Basis for requested change in cost:
❑ Unit pricing
❑ Lump sum: $_____________________________
❑ Time and Materials not to exceed: * $_________
❑ Compensable Delay Costs: $________________
❑ Other:___________________________________
* Final value shall not exceed amount shown without additional written CO
authorization. Complete Time and Materials Breakdown on following page
Reference Documents:*
RFI:
ASI:
Field Order:
Specifications:
Plans:
Other: (specify):
* Provide specific number/section/sheet references as applicable
• CITY OF
PALO
ALTO
DESIGN-BUILD 98 2021
Contract Change Order Request – continued
Line Time and Materials Breakdown
(Reference General Conditions, e.g. Sections 1 and 7.2, for Allowable Costs and markup) Added Credit
All lines shall be filled in (zero values acceptable)
DBT’S WORK
1. Material (attach itemized quantity and unit cost)
2. Labor (attached itemized hours and rates)
3. Equipment (attach invoices)
4. Royalties and Permits
5. Additional insurance and bond costs, not to exceed two percent (2%) of lines 1-4
6. Subtotal (sum of lines 1 through 5)
7. DBT’s Contractor Markup (Section 1.1.31 of the General Conditions) on Extra Work
performed by DBT’s own forces, not to exceed ten percent (10%) of line 6
8. Subtotal for DBT’s Work (sum of lines 6 and 7)
SUBCONTRACTED WORK (Provide separate breakdown for each subcontract)1
9. Material (attach itemized quantity and unit cost)
10. Labor (attach itemized hours and rates)
11. Equipment (attach invoices)
12. Royalties and Permits
13. Additional insurance and bond costs, not to exceed two percent (2%) of lines 9-12
14. Subtotal (sum of lines 9 through 13)
15. Contractor Markup (Section 1.1.33 of the General Conditions) by Subcontractor on Extra
Work performed by Subcontractor’s forces, not to exceed ten percent (10%) of line 14
16. Subcontractor Markup (Section 1.1.76 of General Conditions) by DBT on Subcontractor’s
Allowable Costs, not to exceed fifteen percent (15%) of line 14
17. Subtotal for Subcontracted Work (sum of lines 14, 15 and 16)
18. TOTAL (sum of lines 8 and 17)
Contract Change Order Request – continued
DBT CERTIFICATION: By signing below, the undersigned DBT certifies under penalty of perjury that its statements
and representations in this Change Order Request are true and correct. DBT warrants that this Change Order
Request is comprehensive and complete with respect to the Change in the Design -Build Services described herein,
and agrees that any costs, expenses, or time extension request, including, but not limited to, compensation for
delay, lost productivity, inefficiency, or disruption, which is not included with this Change Order Request, shall be
deemed waived. DBT understands that submission of claims which have no basis in fact or which DBT knows to be
false may violate the False Claims Act, as set forth in Government Code Sections 12650 et seq.
1 Attach additional copies of this page as required to summarize additional subcontracts.
DESIGN-BUILD 99 2021
Submitted by DBT:
Signature:
By:
Title:
Date:
Design Consultant Recommendation
By:
Title:
Date:
Recommendation:
Construction Manager Recommendation
By:
Title:
Date:
Recommendation:
City Approval – Division Head
Signature required on all Change Order Requests
By:
Title: Holly Boyd
Assistant Director, Public Works Engineering
Date:
City Approval – Department Head
Signature required when any individual Change Order Request exceeds $10,000.
By:
Title: Brad Eggleston
Director of Public Works
Date:
DESIGN-BUILD 100 2021
CONTRACT CHANGE ORDER
CITY OF PALO ALTO
DEPARTMENT: PUBLIC WORKS ENGINEERING
_____________________________ Project
Contract Change Order #
Project Title: Project No.:
Contract
Number:
Date:
DBT: Change Order No.:
Description of Change Order
Background Information:
Change Order Justification:
Description of Work to be Performed:
Incorporates Field Order Number(s):
Cost Time
This Change Order will:
❑ No cost change: N/A
❑ Increase cost by $ 0.00
❑ Decrease cost by $ N/A
This Change Order will:
❑ Not change time
❑ Increase time by days
o ___ days Excusable Delay
o ___ days Compensable Delay
❑ Decrease time by days
The date of completion as of this Change Order is
G/L account number (s):
Basis for change in cost:
❑ Unit price(s)
❑ Lump sum
Time and Materials
❑ Compensation for Compensable Delay
❑ Other:
• CITY OF
PALO
ALTO
DESIGN-BUILD 101 2021
Contract Change Order – continued
DBT CERTIFICATION: By signing below, DBT agrees that this Change Order constitutes full resolution, settlement, accord and satisfaction with
respect to any and all pending or future Claims for cost and extensions of time that were asserted, or that could have been asserted, in connection
with the Work or Design-Build Services covered by this Change Order, as more fully set forth in Article 7 of the Contract General Conditions.
FAILURE TO EXECUTE: If DBT fails to promptly execute this Change Order after it has been submitted for DBT’s signature, the City may unilaterally
approve this Change Order as set forth in Article 7 of the Contract General Conditions. DBT may dispute the terms of a unilaterally-approved Change
Order, in whole or in part, by submitting a Claim in accordance with the Dispute Resolution Procedures set forth herein within fourteen (14) days
after the Change Order is approved by the City. If DBT fails to submit a Claim within that 14-day period, with respect to all or part of the unilaterally-
approved Change Order, those portions of the Change Order which have not been disputed by timely submission of a Claim shall be deemed to
have the same effect as if the Change Order was fully executed by both parties as set forth above.
Accepted for DBT: Accepted for City of Palo Alto:
By: By:
Title: Title:
Public Works Engineering - Sr. Project Manager
Date: Date:
PC
O
N
o
.
AS
I
FO
CO
R
CO
Description Amount Reason for Change
Total for this Change Order $ 0.00
Scope of Work or Services
DESIGN-BUILD 102 2021
Document Preparation
By:
Title:
Date:
City Approval – Division Head
Signature required on all Change Orders
By :
Title : Holly Boyd
Assistant Director, Public Works Engineering
Date:
City Approval – Department Head:
Signature required when any individual Change Order exceeds $10,000.
By:
Title: Brad Eggleston
Director of Public Works
Date:
Contract Change Order – continued
Summary of Amounts Payable Under Contract (For Internal Purposes Only)
Original Contract Sum: $ 0.00
Previous Change Orders $ 0.00
This Change Order $ 0.00
Revised Contract Sum: $ 0.00
Compare to:
Original Contract
Authorization: $ 0.00 Contingency: 0.00
Contract Amendment
Authorizations $ 0.00 Contingency added: 0.00
Contingency Authorizations: $ 0.00 Used to date (0.00)
Total Authorized Funding: $ 0.00 Balance remaining 0.00
Change Orders shall not be initiated for Council-approved contracts if the revised Contract Sum exceeds the total
authorized funding amount.
DESIGN-BUILD 103 2021
SPECIAL PROVISIONS
CITY OF PALO ALTO
DESIGN-BUILD
SPECIAL PROVISIONS
Civic Center Fire List Safety Upgrades
PROJECT
DESIGN-BUILD 104 2021
SPECIAL PROVISIONS
SPECIAL PROVISIONS
RFP No. 179385
PE-18016
These Special Provisions apply to this Project in addition to the General Conditions. Terms used in these
Special Provisions which are defined in the General Conditions have the meanings assigned to them in
the General Conditions.
SECTION 1 – PROJECT STAFF
At a minimum, the onsite staff assigned to this Project on a full-time basis must include the
following positions and required qualifications and experience:
Foreman or Supervisor that has completed Live-Scan screening in order to accommodate the
Work in sensitive and/or restricted areas in the Civic Center.
SECTION 2 – PROJECT SCHEDULE
As part of the Construction Services, DBT shall provide weekly rolling 3 -week look-ahead schedules that
are tied to the Construction Schedule for review by the Construction Manager. The weekly look-ahead
schedules must be submitted to the Construction Manager each Month no later than the seventh (7th)
day.
SECTION 3 – TRAFFIC CONTROL
N/A
SECTION 4 – INSURANCE REQUIREMENTS
The insurance limits specified in Article 11 of the General Conditions of the RFP are modified as follows:
Builder’s Risk Insurance: DBT must obtain, at DBT’s sole expense, a Builders Risk insurance policy issued
on an occurrence basis, for all-risk coverage on a one hundred percent (100%) completed value basis on
the insurable portion of the Project for the benefit of City.
SECTION 5 – ADMINISTRATION OF THE CONTRACT
DBT shall provide suitable office space at the Project Site for use by the Construction Manager, City, and
Design Consultants during their presence at the Site. Office may be located within the DBT’s trailer as a
separate office with a door and of minimum 12 foot by 12 foot dimensions, have 2 desks for use by the
City, or office may be within a separate trailer that is fully functional as an office trailer. Separate trailer
shall have electrical, internet and all services required for the City or its designees to conduct business.
SECTION 6 – DEFINITIONS
ARCHITECTS SUPPLEMENTAL INSTRUCTIONS means letters of instruction from the Architect which
interpret or clarify the Contract Documents, but do not change the scope of the Design -Build Services.
SECTION 7 – PROTECTION OF PERSONS AND PROPERTY
N/A
DESIGN-BUILD 105 2021
SPECIAL PROVISIONS
SECTION 8 – ESCROW PROPOSAL DOCUMENTS.
N/A
SECTION 9 – GENERAL CONDITIONS.
9.1. The following provisions in the Design-Build General Conditions included with the RFP are not
applicable to this Project and will have no force and effect :
Traffic Control
END OF SECTION