HomeMy WebLinkAboutContract 1918 DESIGN-BUILD SERVICES AGREEMENT
THIS AGREEMENT FOR DESIGN-BUILD CONTRACT SERVICES (the
"Agreement") is made and entered into by and between the CITY OF CATHEDRAL
CITY, ("City"), a California municipal corporation, and Horizon Construction
Company International, Inc. ("Design-Build Consultant"). The parties hereto agree
as follows:
1.0 SERVICES OF DESIGN-BUILD CONSULTANT
1.1 Scope of Services. In compliance with all terms and conditions of this
Agreement, Design-Build Consultant hereby agrees to serve as the Design-Build
Team for the Cathedral City Amphitheater, Project No. FAC 2021-02, as specified in
the "Scope of Services" attached hereto as Exhibit "A" and incorporated herein by
this reference (the "services" or "work"), inclusive of complete planning, design
and engineering services, construction management services, complete permitted
plan sets, construction services, completion and commissioning services, and
turnover of a complete, functional and legally operable Project, in accordance with
the Bridging Documents and all other terms and conditions of the Contract
Documents ("Work"). Design-Build Consultant warrants that all services will be
performed in a competent, professional and satisfactory manner in accordance with
the standards prevalent in the industry for such services.
1.2 Compliance with Law. All services rendered hereunder shall be provided
in accordance with all ordinances, resolutions, statutes, rules, regulations and laws
of the City of Cathedral City and any Federal, State or local governmental agency of
competent jurisdiction.
1.3 Licenses, Permits, Fees and Assessments. Except as otherwise specified
herein, Design-Build Consultant shall obtain at its sole cost and expense such
licenses, permits and approvals as may be required by law for the performance of
the services required by this Agreement. Design-Build Consultant shall have the
sole obligation to pay for any fees, assessments and taxes, plus applicable penalties
and interest, which may be imposed by law and arise from or are necessary for the
performance of the services required by this Agreement.
1.4 Familiarity with Work. Prior to executing this Agreement, Design-Build
Team has performed all required pre-construction investigations required and
described in the Contract Documents. By executing this Agreement, Design-Build
Consultant warrants that (a) Design-Build Team is specially trained, experienced
and competent to perform and has agreed to provide such services; (b) Design-
Build Team possesses all necessary training, licenses and permits to perform the
Work, and its performance of the Work will conform to the high standards of
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practice of a professional having experience and expertise in performing
professional services of like nature and complexity of the Work working on similar,
successfully completed projects; (b) it has thoroughly investigated and considered
the work to be performed, (c) it has investigated the site of the work and fully
acquainted itself with the conditions there existing, (d) it has carefully considered
how the work should be performed, and (e) it fully understands the facilities,
difficulties and restrictions attending performance of the work under this
Agreement. Should Design-Build Consultant discover any latent or unknown
conditions materially differing from those inherent in the work or as represented by
City, Design-Build Consultant shall immediately inform City of such fact and shall
not proceed except at Design-Build Consultant's risk until written instructions are
received from the Contract Officer (as defined in Section 4.2 hereof).
1.5 Care of Work and Standard of Work. In order to induce City to enter
into this Agreement, Design-Build Team represents that it is duly organized,
existing and in good standing under applicable state law; is licensed to perform all
aspects of the Work; will employ only persons and subcontractors and designers
with all required licenses and certifications;that Design-Build Team is duly qualified
to conduct business in the State of California; that Design-Build Team has duly
authorized the execution, delivery and performance of this Agreement, the other
Contract Documents and the Work to be performed herein; and that the Contract
Documents do not violate or create a default under any instrument, agreement,
order or decree binding on Design-Build Team.
a. Care of Work. Design-Build Consultant shall adopt reasonable methods
during the life of the Agreement to furnish continuous protection to the work
performed by Design-Build Consultant, and the equipment, materials, papers and
other components thereof to prevent losses or damages, and shall be responsible
for all such damages, to persons or property, until acceptance of the work by City,
except such losses or damages as may be caused by City's own negligence. The
performance of services by Design-Build Consultant shall not relieve Design-Build
Consultant from any obligation to correct any incomplete, inaccurate or defective
work at no further cost to City, when such inaccuracies are due to the negligence of
Design-Build Consultant.
b. Standard of Performance. Design-Build Consultant acknowledges and
understands that the services and work contracted for under this Agreement require
specialized skills and abilities and that, consistent with this understanding, Design-
Build Consultant's services and work will be held to a heightened standard of
quality and workmanship. Consistent with Section 1.4 hereinabove, Design-Build
Consultant represents to City that it holds the necessary skills and abilities to satisfy
the heightened standard of work as set forth in this Agreement.
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Design-Build Consultant shall perform the Services using the key personnel
and subconsultants listed in its Proposal. Design-Build Consultant shall hire only
qualified persons or firms who are experienced in performing work of like nature
and complexity to the Work, and who agree to be bound to the terms of this
Agreement to the extent of their scope of services. Design-Build Consultant may
substitute personnel or subconsultants or subcontract any portion of the Work, only
upon City's written consent, which may be withheld in City's discretion. Design-
Build Consultant shall be fully responsible for the work of its subconsultants.
1.6 Additional Services. In accordance with the terms and conditions of this
Agreement, Design-Build Consultant shall perform services in addition to those
specified in the Scope of Services ("Additional Services") when directed to do so
by the Contract Officer. Design-Build Consultant shall not perform any Additional
Services until receiving prior written authorization from the Contract Officer. It is
specifically understood and agreed that oral requests and/or approvals of
Additional Services shall be barred and are unenforeceable. Failure of Design-Build
Consultant to secure the Contract Officer's written authorization for Additional
Services shall constitute a waiver of any and all right to adjustment of the Contract
Sum or time due, whether by way of compensation, restitution, quantum meruit,
etc. for Additional Services provided without the appropriate authorization from the
Contract Officer. Compensation for properly authorized Additional Services shall
be made in accordance with Section 2.2 of this Agreement.
1.7 Special Requirements. Additional terms and conditions of this
Agreement, if any, which are made a part hereof are set forth in Exhibit "D" (the
"Special Requirements"). In the event of a conflict between the provisions of the
Special Requirements and any other provisions of this Agreement, the provisions
of the Special Requirements shall govern.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement,
Design-Build Consultant shall be compensated in accordance with Exhibit "B" (the
"Schedule of Compensation") in a total amount not to exceed Four Hundred
Eighteen Thousand, Six Hundred Fifty Dollars ($418,650.00) (the "Contract Sum"),
except as provided in Section 1.6. The method of compensation set forth in the
Schedule of Compensation may include a lump sum payment upon completion,
payment in accordance with the percentage of completion of the services, payment
for time and materials based upon Design-Build Consultant's rate schedule, but not
exceeding the Contract Sum, or such other methods as may be specified in the
Schedule of Compensation. Compensation may include reimbursement for actual
and necessary expenditures for reproduction costs, transportation expense,
telephone expense, and similar costs and expenses when and if specified in the
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Schedule of Compensation. Regardless of the method of compensation set forth in
the Schedule of Compensation, Design-Build Consultant's overall compensation
shall not exceed the Contract Sum, except as provided in Section 1.6 of this
Agreement, "Additional Services."
2.2 Compensation for Additional Services. Additional services
approved in advance by the Contract Officer pursuant to Section 1.6 of this
Agreement, "Additional Services," shall be paid for in an amount agreed to in
writing by both City and Design-Build Consultant in advance of the Additional
Services being rendered by Design-Build Consultant. Any compensation for
Additional Services amounting to five percent (5%) or less of the Contract Sum may
be approved by the Contract Officer. Any greater amount of compensation for
additional services must be approved by the Cathedral City City Council. Under no
circumstances shall Design-Build Consultant receive compensation for any
Additional Services unless prior written approval for the Additional Services is
obtained from the Contract Officer pursuant to Section 1.6 of this Agreement.
2.3 Method of Billing. Any month in which Design-Build Consultant
wishes to receive payment, Design-Build Consultant shall submit to City no later
than the tenth (10th) working day of such month, in the form approved by City's
Administrative Services Director, an invoice for services rendered prior to the date
of the invoice. Such invoice shall (1) describe in detail the servicesP rovided
including time and materials, and (2) specify each staff member who has provided
services and the number of hours assigned to each such staff member. Such
invoice shall contain a certification by a principal member of Design-Build
Consultant specifying that the payment requested is for work performed in
accordance with the terms of this Agreement. City will pay Design-Build Consultant
for all expenses stated thereon which are approved by City pursuant to this
Agreement no later than thirty (30) days after invoices are received and accepted
by the City's Finance Department.
3.0 PERFORMANCE SCHEDULE
3.1 Design-Build Team shall commence Work on the date indicated in the
applicable Notice to Proceed. City reserves the right to modify or alter the
Commencement Date.
3.2 Completion of Work. Design-Build Team shall achieve Final Completion
within 45 Working Days of the Commencement Date.
3.3 Time of Essence. Time is of the essence in the performance of this
Agreement.
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3.4 Schedule of Performance. All services rendered pursuant to this
Agreement shall be performed diligently and within the time period established in
Exhibit C (the "Schedule of Performance"). Extensions to the time period specified
in the Schedule of Performance may be approved in writing by the Contract Officer.
Design-Build Team will be responsible for any delays to the Project to the extent
caused or contributed to by its failure to properly perform the Work.
3.5 Covid-19. The Contract Sum, time to achieve Completion Date and
Construction Schedule specifically take into account the COVID-19 Pandemic, all
Riverside County Orders related thereto, all Governor's Orders related thereto, and
all other governmental requirements or regulations regarding COVID-19 as of the
date of this Agreement, including without limitation all site safety measures
required to be undertaken in accordance with CAL-OSHA and other applicable
regulations.
3.6 Force Majeure. Other than as provided in Section 3.5 above, the time
period specified in the Schedule of Performance for performance of the services
rendered pursuant to this Agreement shall be extended because of any delays due
to unforeseeable causes beyond the control and without the fault or negligence of
Design-Build Consultant, including, but not restricted to, acts of God or of the public
enemy, fires, earthquakes, floods, epidemic, quarantine restrictions, riots, strikes,
freight embargoes, acts of any governmental agency other than City, and unusually
severe weather, if Design-Build Consultant shall within ten (10) days of the
commencement of such delay notify the Contract Officer in writing of the causes of
the delay. The Contract Officer shall ascertain the facts and the extent of delay, and
extend the time for performing the services for the period of the forced delay when
and if in his or her judgment such delay is justified, and the Contract Officer's
determination shall be final and conclusive upon the parties to this Agreement.
Extensions to the Schedule of Performance which are determined by the Contract
Officer to be justified pursuant to this Section shall not entitle the Design-Build
Consultant to additional compensation in excess of the Contract Sum.
3.7 Term. Unless earlier terminated in accordance with Sections 8.7 or 8.8 of
this Agreement, the term of this agreement shall commence on June 1, 2021 and
terminate on March 31, 2022(initial term). This agreement may be extended for
One (1) additional year(s) upon mutual agreement by both parties (extended term).
3.8 Liquidated Damage Amounts
A. City and Design-Build Team recognize that time is of the essence of this
Agreement and that City will suffer financial loss, if the Work is not completed
within the time specified herein, taking into account any extensions thereof allowed
in accordance with the Contract Documents.
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B. Consistent with terms, conditions, stipulations and limitations in Section
1500 of the Supplemental General Conditions regarding liquidated damages,
Design-Build Team and City agree that because of the nature of the Project, it would
be impractical or extremely difficult to fix the amount of actual damages incurred
by City because of a delay in completion of the Work. Accordingly, in the event of
delay in completion of the Work, or any applicable portion, City and Design-Build
Team agree that Design-Build Team shall pay City as liquidated damages the
number of Dollars provided below:
1. As liquidated damages for delay, Design-Build Team shall pay City One
Thousand Dollars ($1,000.00) for each Day that expires after the time specified
herein for Design-Build Team to achieve Final Completion of the entire Work, until
achieved.
3.9 Scope of Liquidated Damages
A. Measures of liquidated damages shall apply cumulatively.
B. Limitations and stipulations regarding liquidated damages are set forth
in the Supplemental General Conditions.
4.0 COORDINATION OF WORK
4.1 Representative of Design-Build Consultant. The following principals of
Design-Build Consultant are hereby designated as being the principals and
representatives of Design-Build Consultant authorized to act in its behalf with
respect to the work specified herein and make all decisions in connection therewith:
a. Hatem Ibrahim, Horizons Construction Company International, Inc.
b. Robert M. Simons, AIA, SVA Architects
It is expressly understood that the experience, knowledge, capability, and
reputation of the foregoing principals were a substantial inducement for City to
enter into this Agreement. Therefore, the foregoing principals shall be responsible
during the term of this Agreement for directing all activities of Design-Build
Consultant and devoting sufficient time to personally supervise the services
hereunder.
The foregoing principals may not be changed by Design-Build Consultant and
no other personnel may be assigned to perform the service required hereunder
without the express written approval of City.
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4.2 Contract Officer. The Contract Officer shall be Tami E. Scott, MBA,
Administrative Services Director or such other person as may be designated by the
City Manager of City. It shall be Design-Build Consultant's responsibility to assure
that the Contract Officer is kept informed of the progress of the performance of the
services and Design-Build Consultant shall refer any decisions, which must be
made by City to the Contract Officer. Unless otherwise specified herein, any
approval of City required hereunder shall mean the approval of the Contract Officer.
City may assign all or part of the Contract Officer's rights, responsibilities and duties
to a Construction Manager, or other City Representative.
4.3 Design-Build Team's Project Manager and Key Personnel
A. Design-Build Team has designated Hatem Ibrahim as its Project Manager
to act as Design-Build Team's Representative in all matters relating to the Contract
Documents. For the construction phase, the Project Manager shall be present at
the Project Site and shall be devoted solely to the Project. Design-Build Team's
Project Manager shall be the single point of contact for all Project communications
between City and Design-Build Team, and shall be responsible for distributing all
communications from City and City's consultants (including without limitation from
Design-Build Consultant or Construction Manager on City's behalf) to Design-Build
Team's Superintendent and others as Design-Build Team deems appropriate.
B. Design-Build Team's Proposal lists its key personnel Design-Build Team
intends to provide to the Project to perform its design, construction and obligations
under the Contract Documents ("Key Personnel"). Design-Build Team represents
that such staff have the necessary licenses, experience and qualifications to
satisfactorily perform the requirements of the Contract Documents and that at all
times Design-Build Team shall maintain such staff or similar staff having all
necessary licenses, certifications, experience and skills necessary to perform all
obligations of the Contract Documents
C. Design-Build Team may not change the identity of its Project Manager or
any other Key Personnel without prior Owner written approval, which approval
shall not be unreasonably withheld, provided such replacement has similar or
greater experience and qualifications, subject to paragraphs D and E below.
D. Design-Build Team acknowledges that the quality and qualifications of
the Key Personnel were important factors in Owner's selection of Design-Build
Team for the Project. Design-Build Team and Owner agree that the personal
services of the Key Personnel is a material term of the Contract Documents, and
substitution or removal or change in role or level of effort, of such Key Personnel
would result in damages to the City.
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E. Pursuant to Labor Code Section 1771(a), Design-Build Team covenants
that it will award contracts and subcontracts for Project Work, only to
Subcontractors which are at that time registered and qualified to perform public
work pursuant to Labor Code Section 1725.5. Design-Build Team shall obtain proof
of such registration from all such Subcontractors and provide it to Owner along
with each Subcontractors List.
F. City shall have the right to review all phases of Design-Build Team's
design including, but not limited to, drawings, specifications, shop drawings,
samples and submittals, as specified in the Contract Documents. Such review and
other action shall not relieve Design-Build Team of its responsibility for a complete
design complying with the requirements of the Contract Documents; but rather,
such review shall be in furtherance of Owner's monitoring and accepting the design
as developed and issued by the Design-Build Team, consistent with these Contract
Documents. Design-Build Team's responsibility to design and construct the Project
in conformance with the Contract Documents shall be absolute.
4.3 Prohibition Against Subcontracting or Assignment. This is an agreement
for the services of Design-Build Consultant. The City has relied upon the skills,
knowledge, experience and training of Consultant and the Consultant's firm,
associates and employees as a substantial inducement to enter into this
Agreement. Consultant shall not assign or subcontract this Agreement without the
express written consent of the City. Further, Consultant shall not assign any monies
due or to become due under this Agreement without the prior written consent of
the City. Except as set forth in this Agreement, Design-Build Consultant shall not
contract with any other entity to perform in whole or in part the services required
hereunder without the express written approval of City. In addition, neither this
Agreement nor any interest herein may be assigned or transferred, voluntarily or
by operation of law, without the prior written approval of City.
4.4 Status of Consultant
A. Independent Contractor: All acts of Consultant and its board of
directors, officers, employees, agents, representatives, subcontractors
and all others acting on behalf of Consultant relating to the performance
of this Agreement, shall be performed as independent contractors and
not as agents, officers or employees of City. Consultant, by virtue of
this Agreement, has no authority to bind or incur any obligation on
behalf of City. Consultant has no authority or responsibility to exercise
any rights or power vested in the City. Design-Build Consultant shall
not at any time or in any manner represent that it or any of its agents or
employees are agents or employees of City. Design-Build Consultant
shall not at any time or in any manner represent that it or any of its
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agents or employees are agents or employees of City.
B. It is understood and agreed that in no instance are the persons signing
this Agreement for or on behalf of Owner or acting as an employee,
agent, or representative of Owner, liable on this Agreement or any of
the Contract Documents, or upon any warranty of authority, or
otherwise, and it is further understood and agreed that liability of Owner
is limited and confined to such liability as authorized or imposed by the
Contract Documents or applicable law.
C. Conduct as Independent Contractor: At all times during the term of this
Agreement, the Consultant and its officers, employees, agents,
representatives or subcontractors are, and shall represent and conduct
themselves as, independent contractors and not employees of the City.
D. Means of Performing Work: Consultant shall determine the method,
details and means of performing the work and services to be provided
by Consultant under this Agreement. Consultant shall be responsible
to the City only for the requirements and results specified in this
Agreement and, except as expressly provided in this Agreement, shall
not be subjected to the City's control with respect to the physical action
or activities of Consultant in fulfillment of this Agreement. Consultant
g s ant
has control over the manner and means of performing the services
under this Agreement. If necessary, Consultant has the responsibility
for employing other persons or firms to assist Consultant in fulfilling the
terms and obligations under this Agreement.
E.Third Person Employment: If in the performance of this Agreement any
third persons are employed by Consultant, such persons shall be
entirely and exclusively under the direction, supervision and control of
Consultant. All terms of employment including hours, wages, working
conditions, discipline, hiring and discharging, or any other term of
employment or requirements of law, shall be determined by the
Consultant.
F. Services to Others: Consultant is permitted to provide services to others
during the same period service is provided to City under this
Agreement; provided, however, such services shall not conflict directly
or indirectly with the performance of the Consultant's obligations under
this Agreement.
G. W-2 Forms: It is further understood and agreed that Consultant must
issue W-2 forms or other forms as required by law for income and
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employment tax purposes for all of Consultants assigned personnel
under the terms and conditions of this Agreement.
H. Claims By Third Parties: As an independent contractor, Consultant
hereby indemnifies and holds City harmless from any and all claims that
may be made against City based upon any contention by anythird party
p Y
that an employer-employee relationship exists by reason of this
Agreement.
4.5 City Cooperation. City shall provide Design-Build Consultant with any
plans, publications, reports, statistics, records or other data or information pertinent
to services to be performed hereunder which are reasonably available to Design-
Build Consultant only from or through action by City.
Each party shall notify the other party immediately in writing of any claim or
damage related to activities performed under this Agreement. The parties shall
cooperate with each other in the investigation and disposition of any claim arising
out of the activities under this Agreement. Specifically, Design-Build Consultant
shall take all steps necessary to assist the City in the defense of any claim brought
by a contractor hired to construct the Project regarding any errors, flaws, and/or
omissions in the plans or specifications of the Project.
5.0 - CONTRACT DOCUMENTS
5.01 Contract Documents consist of the following documents, including all
changes, Addenda, and Modifications thereto:
A. Subcontractors List and all amendments thereto
B. Notice of Award
C. Design-Build Agreement and all Exhibits
D. Bridging Documents
E. Notice to Proceed
F. Construction Performance Bond
G. Construction Labor and Material Payment Bond
H. Agreement and Release of Any And All Claims
I. Guaranty
J. Special Requirements
K. General Conditions
L. Supplemental General Conditions
M. General Project Requirements
N. Special Provisions
O. Final Construction Documents (following receipt of all approvals required
by other Contract Documents)
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5.02 There are no Contract Documents other than those listed above. The
Contract Documents may only be amended, modified or supplemented as provided
in this Agreement. Design-Build Team's Proposal dated February 22, 2021 is
attached hereto for reference purposes, and for matters specifically identified in this
Agreement.
6.0 INSURANCE
6.1 Insurance. Prior to the beginning of and throughout the duration of the
Work performed under this Agreement, Design-Build Consultant shall procure and
maintain, at its cost, and submit concurrently with its execution of this Agreement,
Commercial General Liability insurance against all claims for injuries against
persons or damages to property resulting from Design-Build Consultant's acts or
omissions rising out of or related to Design-Build Consultant's performance under
this Agreement. The insurance policy shall contain a severability of interest clause
providing that the coverage shall be primary for losses arising out of Design-Build
Consultant's performance hereunder and neither City nor its insurers shall be
required to contribute to any such loss. A certificate evidencing the foregoing and
naming City and its officers and employees as additional insured (on the
Commercial General Liability policy only) shall be delivered to and approved by City
prior to commencement of the services hereunder.
The following policies shall be maintained and kept in full force and effect
providing insurance with minimum limits as indicated below and issued by insurers
with A.M. Best ratings of no less than A-:VI:
Commercial General Liability (at least as broad as ISO CG 0001)
$2,000,000 (per occurrence)
$4,000,000 (general aggregate)
Commercial Auto Liability (at least as broad as ISO CA 0001)
$1,000,000 (per accident)
Errors and Omissions Liability
$1,000,000 (per claim)
$2,000,000 (aggregate)
Workers' Compensation
(per statutory requirements)
Design-Build Consultant shall carry automobile liability insurance of
$1,000,000 per accident against all claims for injuries against persons or damages
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to property arising out of the use of any automobile by Design-Build Consultant, its
officers, any person directly or indirectly employed by Design-Build Consultant, any
subcontractor or agent, or anyone for whose acts any of them may be liable, arising
directly or indirectly out of or related to Design-Build Consultant's performance
under this Agreement. If Design-Build Consultant or Design-Build Consultant's
employees will use personal autos in any way on this project, Design-Build
Consultant shall provide evidence of personal auto liability coverage for each such
person. The term "automobile" includes, but is not limited to, a land motor vehicle,
trailer or semi-trailer designed for travel on public roads. The automobile insurance
policy shall contain a severability of interest clause providing that coverage shall be
primary for losses arising out of Design-Build Consultant's performance hereunder
and neither City nor its insurers shall be required to contribute to such loss.
Professional Liability or Errors and Omissions Insurance as appropriate shall
be written on a policy form coverage specifically designed to protect against acts,
errors or omissions of the Design-Build Consultant and "Covered Professional
Services" as designated in the policy must specifically include work performed
under this agreement. The policy limit shall be no less than $1,000,000 per claim
and in the aggregate. The policy must "pay on behalf of" the insured and must
include a provision establishing the insurer's duty to defend. The policy retroactive
date shall be on or before the effective date of this agreement.
Design-Build Consultant shall carry Workers' Compensation Insurance in
accordance with State Worker's Compensation laws with employer's liability limits
no less than $1,000,000 per accident or disease.
All insurance required by this Section shall be kept in effect during the term of
this Agreement and shall not be cancelable without written notice to City of
Ili proposed cancellation. The procuring of such insurance or the delivery of policies
or certificates evidencing the same shall not be construed as a limitation of Design-
Build Consultant's obligation to indemnify City, its officers, employees, contractors,
subcontractors, or agents.
6.2 Remedies. In addition to any other remedies City may have if Design-
Build Consultant fails to provide or maintain any insurance policies or policy
endorsements to the extent and within the time herein required, City may, at its
sole option:
a. Obtain such insurance and deduct and retain the amount of the
premiums for such insurance from any sums due under this Agreement.
b. Order Design-Build Consultant to stop work under this Agreement
and/or withhold any payment(s) which become due to Design-Build Consultant
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hereunder until Design-Build Consultant demonstrates compliance with the
requirements hereof.
c. Terminate this Agreement.
Exercise of any of the above remedies, however, is an alternative to any other
remedies City may have. The above remedies are not the exclusive remedies for
Design-Build Consultant's failure to maintain or secure appropriate policies or
endorsements. Nothing herein contained shall be construed as limiting in any way
the extent to which Design-Build Consultant may be held responsible for payments
of damages to persons or property resulting from Design-Build Consultant's or its
subcontractors' performance of work under this Agreement.
6.3 General Conditions pertaining to provisions of insurance coverage by
Design-Build Consultant. Design-Build Consultant and City agree to the following,
and those requirements further defined in Section 1340 presented in Exhibit D
Special Requirements, with respect to insurance provided by Design-Build
Consultant:
1. Design-Build Consultant agrees to have its insurer endorse the third
party general liability coverage required herein to include as additional insureds
City, its officials, employees and agents, using standard ISO endorsement No. CG
2010 with an edition prior to 1992. Design-Build Consultant also agrees to require
all contractors, and subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this
Agreement shall prohibit Design-Build Consultant, or Design-Build Consultant's
employees, or agents, from waiving the right of subrogation prior to a loss. Design-
Build Consultant agrees to waive subrogation rights against City regardless of the
applicability of any insurance proceeds, and to require all contractors and
subcontractors to do likewise.
3. All insurance coverage and limits provided by Design-Build
Consultant and available or applicable to this agreement are intended to apply to
the full extent of the policies. Nothing contained in this Agreement or any other
agreement relating to the City or its operations limits the application of such
insurance coverage.
4. None of the coverages required herein will be in compliance with
these requirements if they include any limiting endorsement of any kind that has
not been first submitted to City and approved of in writing.
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5. No liability policy shall contain any provision or definition that
would serve to eliminate so-called "third party action over" claims, including any
exclusion for bodily injury to an employee of the insured or of any contractor or
subcontractor.
6. All coverage types and limits required are subject to approval,
modification and additional requirements by the City, as the need arises. Design-
Build Consultant shall not make any reductions in scope of coverage (e.g.
elimination of contractual liability or reduction of discovery period) that may affect
City's protection without City's prior written consent.
7. Proof of compliance with these insurance requirements, consisting
of certificates of insurance evidencing all of the coverages required and an
additional insured endorsement to Design-Build Consultant's general liability
policy, shall be delivered to City at or prior to the execution of this Agreement. In
the event such proof of any insurance is not delivered as required, or in the event
such insurance is canceled at any time and no replacement coverage is provided,
City has the right, but not the duty, to obtain any insurance it deems necessary to
protect its interests under this or any other agreement and to pay the premium.
Any premium so paid by City shall be charged to and promptly paid by Design-
Build Consultant or deducted from sums due Design-Build Consultant, at City
option.
8. It is acknowledged by the parties of this agreement that all insurance
coverage required to be provided by Design-Build Consultant or any subcontractor,
is intended to apply first and on a primary, non-contributing basis in relation to any
other insurance or self insurance available to City.
9. Design-Build Consultant agrees to ensure that subcontractors, and
any other party involved with the project that is brought onto or involved in the
project by Design-Build Consultant, provide the same minimum insurance coverage
required of Design-Build Consultant. Design-Build Consultant agrees to monitor
and review all such coverage and assumes all responsibility for ensuring that such
coverage is provided in conformity with the requirements of this section. Design-
Build Consultant agrees that upon request, all agreements with subcontractors and
others engaged in the project will be submitted to City for review.
10. Design-Build Consultant agrees not to self-insure or to use any self-
insured retentions or deductibles on any portion of the insurance required herein
(with the exception of professional liability coverage, if required) and further agrees
that it will not allow any contractor, subcontractor, Architect, Engineer or other
entity or person in any way involved in the performance of work on the project
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contemplated by this agreement to self-insure its obligations to City. If Design-
Build Consultant's existing coverage includes a deductible or self-insured retention,
the deductible or self-insured retention must be declared to the City. At that time
the City shall review options with the Design-Build Consultant, which may include
reduction or elimination of the deductible or self-insured retention, substitution of
other coverage, or other solutions.
11. The City reserves the right at any time during the term of the
contract to change the amounts and types of insurance required by giving the
Design-Build Consultant ninety (90) days advance written notice of such change. If
such change results in substantial additional cost to the Design-Build Consultant,
the City will negotiate additional compensation proportional to the increased
benefit to City.
12. For purposes of applying insurance coverage only, this Agreement
will be deemed to have been executed immediately upon any party hereto taking
any steps that can be deemed to be in furtherance of or towards performance of
this Agreement.
13. Design-Build Consultant acknowledges and agrees that any actual
or alleged failure on the part of City to inform Design-Build Consultant of non-
compliance with any insurance requirement in no way imposes any additional
obligations on City nor does it waive any rights hereunder in this or any other
regard.
14. Design-Build Consultant will renew the required coverage annually
as long as City, or its employees or agents face an exposure from operations of any
typepursuant to this agreement. This obligation applies whether or not the
Yp 9 9 pp
agreement is canceled or terminated for any reason. Termination of this obligation
is not effective until City executes a written statement to that effect.
15. Design-Build Consultant shall provide proof that policies of
insurance required herein expiring during the term of this Agreement have been
renewed or replaced with other policies providing at least the same coverage. Proof
that such coverage has been ordered shall be submitted prior to expiration. A
coverage binder or letter from Design-Build Consultant's insurance agent to this
effect is acceptable. A certificate of insurance and/or additional insured
endorsement as required in these specifications applicable to the renewing or new
coverage must be provided to City within five (5) days of the expiration of
coverages.
16. The provisions of any workers' compensation or similar act will not
limit the obligations of Design-Build Consultant under this agreement. Design-
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Build Consultant expressly agrees not to use any statutory immunity defenses
under such laws with respect to City, its employees, officials and agents.
17. Requirements of specific coverage features or limits contained in
this section are not intended as limitations on coverage, limits or other
requirements nor as a waiver of any coverage normally provided by any given
policy. Specific reference to a given coverage feature is for purposes of clarification
only as it pertains to a given issue, and is not intended by any party or insured to
be limiting or all-inclusive.
18. These insurance requirements are intended to be separate and
distinct from any other provision in this agreement and are intended by the parties
here to be interpreted as such.
19. The requirements in this Section supersede all other sections and
provisions of this Agreement to the extent that any other section or provision
conflicts with or impairs the provisions of this Section.
20. Design-Build Consultant agrees to be responsible for ensuring that
no contract used by any party involved in any way with the project reserves the
right to charge City or Design-Build Consultant for the cost of additional insurance
coverage required by this agreement. Any such provisions are to be deleted with
reference to City. It is not the intent of City to reimburse any third party for the cost
of complying with these requirements. There shall be no recourse against City for
payment of premiums or other amounts with respect thereto.
21. Design-Build Consultant agrees to provide immediate notice to City
of any claim or loss against Design-Build Consultant arising out of the work
performed under this agreement. City assumes no obligation or liability by such
notice, but has the right (but not the duty)to monitor the handling of any such claim
or claims if they are likely to involve City.
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7.0 INDEMNIFICATION.
7.1 General Indemnification Provision.
a. Indemnification Provision for Design Professionals.
1. The following indemnification provision shall apply to Design-
Build Consultants who constitute "design professionals" as the term is defined in
paragraph 2 below.
2. Design Professional Defined. As used in this Section 6.2(b),the
term "design professional" shall be limited to licensed architects, registered
professional engineers, licensed professional land surveyors and landscape
architects, all as defined under current law, and as may be amended from time to
time by Civil Code § 2782.8.
b. Indemnification: To the fullest extent allowed by law (including
without limitation California Civil Code Sections 2782 and 2782.8), Design-Build
Consultant shall defend, indemnify, and hold harmless the City, its officers,
directors, officials, agents employees, and volunteers (collectively "Indemnitees")
from and against any and all claims, suit, action, loss, cost, damage, injury
(including, without limitation, economic harm, injury to or death of an employee of
Design-Build Consultant or its Subconsultants) expense and liability of every kind,
nature, and description, at law or equity, that arises out of, pertain to, or relate to
(including without limitation, incidental and consequential damages, court costs,
attorneys' fees, litigation expenses and fees of expert consultants or expert
witnesses incurred in connection therewith and costs of investigation) any
negligence, recklessness, or willful misconduct of Design-Build Consultant, any
Subconsultant, anyone directly or indirectly employed by them, or anyone that they
control (collectively "Liabilities"). Such obligations to defend, hold harmless and
indemnify and Indemnitee shall not apply to the extent that such Liabilities are
caused in whole or in part by the sole negligence active negligence, or willful
misconduct of such Indemnitee but shall apply to all other Liabilities. Further,
pursuant to Civil Code Section 2782.8, the indemnity obligations herein, including
the duty and the cost to defend the City by the Design-Build Consultant against
liability for claims against the City, are unenforceable, except to the extent that the
claims against the City arise out of, pertain to, to relate to the negligence,
recklessness, or willful misconduct of the Design-Build Consultant. In no event shall
the cost to defend charged to the Design-Build Consultant exceed the Design-Build
Consultant's proportionate percentage of fault. However, notwithstanding the
previous sentence, in the event one or more defendants is unable to pay its share
of defense costs due to bankruptcy or dissolution of the business, the Design-Build
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Consultant shall meet and confer with the other parties regarding unpaid defense
costs.
9.2 Intellectual Property Indemnification: Consultant represents that
professional services provided by Consultant pursuant to this Agreement does not
infringe on any other copyrighted work or intellectual property owned by others.
Consultant shall defend, indemnify and hold harmless the City from all Liabilities,
that may at any time arise for any infringement of the patent rights, copyright,trade
secret, trade name, trademark, service mark or any other proprietary right of any
person or persons in arising from or relating to Consultant's services provided to
the City under this Agreement.
9.3 Patent Rights: Design-Build Consultant represents that professional
services provided by Design-Build Consultant pursuant to this Agreement do not
infringe on any other copyrighted work. Design-Build Consultant shall defend,
indemnify and hold harmless the City from all loss, cost, damage, expense, liability
or claims, including attorneys' fees, court costs, litigation expenses and expert
consultant or witness fees, that may at any time arise for any infringement of the
patent rights, copyright, trade secret, trade name, trademark, service mark or any
other proprietary right of any person or persons in consequence of the use by the
City of any articles or services supplied under this agreement.
9.3 Duty to Defend: Design-Build Consultant shall defend, indemnify
and hold harmless the Indemnitees from all loss, cost damage, expense, suit,
liability or claims, in law or in equity, including attorneys'fees, court costs, litigation
expenses and fees of expert consultants or expert witnesses, that may at any time
arise for any infringement of the patent rights, copyright, trade secret, trade name,
trademark, service mark or any other proprietary right of any person or persons in
consequence of the use by Owner, or any of the other Indemnitees of articles or
Services to be supplied in the performance of this Agreement.
b. Indemnification for Other Than Professional Liability. Other than in
the performance of professional services and to the full extent permitted by law,
Design-Build Consultant shall indemnify, defend and hold harmless City, and any
and all of its employees, officials and agents from and against any liability
(including liability for claims, suits, actions, arbitration proceedings, administrative
proceedings, regulatory proceedings, losses, expenses or costs of any kind,
whether actual, alleged or threatened, including, without limitation, incidental and
consequential damages, court costs, attorneys' fees, litigation expenses, and fees
of expert Consultants or expert witnesses) incurred in connection therewith and
costs of investigation, where the same arise out of, are a consequence of, or are in
any way attributable to, in whole or in part, the performance of this Agreement by
Design-Build Consultant or by any individual or entity for which Design-Build
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Consultant is legally liable, including but not limited to officers, agents, employees
or subconsultants of Design-Build Consultant.
7.2 Standard Indemnification Provisions. Design-Build Consultant agrees to
obtain executed indemnity agreements with provisions identical to those set forth
herein this section from each and every subconsultant or any other person or entity
involved by, for, with or on behalf of Design-Build Consultant in the performance
of this agreement. In the event Design-Build Consultant fails to obtain such
indemnity obligations from others as required herein, Design-Build Consultant
agrees to be fully responsible according to the terms of this section. Failure of City
to monitor compliance with these requirements imposes no additional obligations
on City and will in no way act as a waiver of any rights hereunder. This obligation
to indemnify and defend City as set forth herein is binding on the successors,
assigns or heirs of Design-Build Consultant and shall survive the termination of this
agreement or this section.
Indemnity Provisions for Contracts Related to Construction. Without
affecting the rights of City under any provision of this agreement, Design-Build
Consultant shall not be required to indemnify and hold harmless City for liability
attributable to the active negligence of City, provided such active negligence is
determined by agreement between the parties or by the findings of a court of
competent jurisdiction. In instances where City is shown to have been actively
negligent and where City's active negligence accounts for only a percentage of the
liability involved, the obligation of Design-Build Consultant will be for that entire
portion or percentage of liability not attributable to the active negligence of City.
8.0 RECORDS AND REPORTS.
8.1 Reports. Design-Build Consultant shall periodically prepare and submit
to the Contract Officer such reports concerning Design-Build Consultant's
performance of the services required by this Agreement as the Contract Officer shall
require.
8.2 Records. Design-Build Consultant shall maintain all documents and
records prepared by or furnished to Design-Build Consultant during the course of
performing the Work for at least four (4) years following completion of the Work.
Such records include, but are not limited to, correspondence, internal memoranda,
calculations, books and accounts, accounting records documenting its work under
this Agreement, and invoices, payrolls, records and all other data related to matters
covered by this Agreement. Design-Build Consultant shall permit City to audit,
examine and make copies, excerpts and transcripts from such records. Such rights
shall be specifically enforceable.
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Books and records pertaining to costs shall be kept and prepared in accordance
with generally accepted accounting principals. The Contract Officer shall have full
and free access to such books and records at all reasonable times, including the
right to inspect, copy, audit, and make records and transcripts from such records.
8.3 Ownership of Work Product. Originals of all drawings, specifications,
reports, records, documents and other materials,whether in hard copy or electronic
form, which are prepared by Design-Build Consultant, its employees,
subcontractors and agents in the performance of this Agreement, shall be the
property of City andDesign-Build Consultant shall be delivered to City upon
termination of this Agreement or upon the earlier request of the Contract Officer,
and Design-Build Consultant shall have no claim for further employment or
additional compensation as a result of the exercise by City of its full rights of
ownership of the documents and materials hereunder. Design-Build Consultant
shall cause all subcontractors to assign to City any documents or materials
prepared by them, and in the event Design-Build Consultant fails to secure such
assignment, Design-Build Consultant shall indemnify City for all damages suffered
thereby.
In the event City or any person, firm or corporation authorized by City reuses
said documents and materials without written verification or adaptation by Design-
Build Consultant for the specific purpose intended and causes to be made or makes
any changes or alterations in said documents and materials, City hereby releases,
discharges, and exonerates Design-Build Consultant from liability resulting from
said change. The provisions of this clause shall survive the completion of this
Contract and shall thereafter remain in full force and effect.
Any interest (including copyright interests) of Design-Build Consultant or its
subconsultants, in studies, reports, memoranda, computational sheets, drawings,
plans or any other documents (including electronic media) prepared by Design-
Build Consultant or its subconsultants at any time in connection with the Work, shall
be, immediately upon creation, the property of City. To the extent permitted by
Title 17 of the United States Code, work product produced under this Agreement
shall be deemed works for hire and all copyrights in such works shall be the
property of City, excluding Design-Build Consultant's standard sheets, details, and
notes. In the event that it is ever determined that any works and any former works
created by Design-Build Consultant or its subconsultants under this Agreement are
not works for hire under U.S. law, Design-Build Consultant hereby assigns to City
all copyrights to such works when and as created. Design-Build Consultant may
retain and use copies of such works for reference and as documentation of
experience and capabilities.
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Design-Build Consultant hereby grants to City a non-exclusive, irrevocable
license in perpetuity to all studies, reports, memoranda, computational sheets,
drawings, plans or any other documents (including electronic media) prepared by
Design-Build Consultant or its subconsultants (the "Documents") at any time in
connection with the Services. Under this license City may reproduce, distribute,
modify or create derivative works of the Documents. In the event City utilizes any
portion of the Documents without the involvement of Design-Build Consultant, City
agrees to remove from the Documents all title blocks and information identifying
Design-Build Consultant.
8.4 Release of Documents. The drawings, specifications, reports, records,
documents and other materials prepared by Design-Build Consultant in the
performance of services under this Agreement shall not be released publicly
without the prior written approval of the Contract Officer or as required by law.
Design-Build Consultant shall not disclose to any other entity or person any
information regarding the activities of City, except as required by law or as
authorized by City.
8.5 In entering into this Agreement, Design-Build Team or Subcontractor
offers and agrees to assign to the awarding body 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. §15)
or under the Cartwright Act (Chapter 2 (commencing with §16700) of Part 2 of
Division 7 of the Business and Professions Code), arising from purchases of goods,
services or materials pursuant to the public works contract or the subcontract. This
assignment shall be made and become effective at the time City tenders final
payment to Design-Build Team, without further acknowledgment by the parties.
9.0 ENFORCEMENT OF AGREEMENT.
9.1 California Law. This Agreement shall be construed and interpreted both
as to validity and to performance of the parties in accordance with the laws of the
State of California. Legal actions concerning any dispute, claim or matter arising
out of or in relation to this Agreement shall be instituted in the Superior Court of
the County of Riverside, State of California, or any other appropriate court in such
county, and Design-Build Consultant covenants and agrees to submit to the
personal jurisdiction of such court in the event of such action.
9.2 Disputes. In the event of any dispute arising under this Agreement, the
injured party shall notify the injuring party in writing of its contentions by
submitting a claim therefore. The injured party shall continue performing its
obligations hereunder so long as the injuring party commences to cure such default
within ten (10) days of service of such notice and completes the cure of such default
within forty-five (45) days after service of the notice, or such longer period as may
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be permitted by the Contract Officer; provided that if the default is an immediate
danger to the health, safety and general welfare, City may take such immediate
action as City deems warranted. Compliance with the provisions of this section
shall be a condition precedent to termination of this Agreement for cause and to
any legal action, and such compliance shall not be a waiver of any party's right to
take legal action in the event that the dispute is not cured, provided that nothing
herein shall limit City's right to terminate this Agreement without cause pursuant
to Section 9.7.
Should claim negotiations prove unsuccessful, and if Design-Build Consultant
files a Government Code section 910 claim, then pursuant to Government Code
Section 930.2, the time period to do so shall be no later than 120 days following
completion or termination of the Work (whichever first occurs.) The parties must
thereafter engage in non-binding mediation using a mediator pre-qualified by the
American Arbitration Association for construction industry mediation, as a
precondition of any litigation, and if litigation should occur, then the parties shall
engage in judicially supervised non-binding arbitration. The requirements of this
section are non-waivable except by written agreement signed by both parties and
approved as to form by their legal counsel.
9.3 Retention of Funds. City may withhold from any monies payable to
Design-Build Consultant sufficient funds to compensate City for any losses, costs,
liabilities, or damages it reasonably believes were suffered by City due to the default
of Design-Build Consultant in the performance of the services required by this
Agreement. The percentage of the retention proceeds withheld may not exceed the
percentage specified in the Contract Documents (not greater than 5%).
9.4 Waiver. No delay or omission in the exercise of any right or remedy of a
non defaulting party on any default shall impair such right or remedy or be
construed as a waiver. City's consent or approval of any act by Design-Build
Consultant requiring City's consent or approval shall not be deemed to waive or
render unnecessary City's consent to or approval of any subsequent act of Design-
Build Consultant. Any waiver by either party of any default must be in writing and
shall not be a waiver of any other default concerning the same or any other
provision of this Agreement. Waiver of any default by either party to this
Agreement shall not be deemed to be waiver of any subsequent default. Waiver or
breach of any provision of this Agreement shall not be deemed to be a waiver of
any other or subsequent breach, and shall not be construed to be a modification of
the terms of this Agreement unless this Agreement is modified as provided below.
9.5 Rights and Remedies are Cumulative. Except with respect to rights and
remedies expressly declared to be exclusive in this Agreement, the rights and
remedies of the parties are cumulative and the exercise by either party of one or
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more of such rights or remedies shall not preclude the exercise by it, at the same
or different times, of any other rights or remedies for the same default or any other
default by the other party.
9.6 No Incidental or Special Damages. Notwithstanding any other
provision of this Agreement, in no event shall City be liable, regardless of whether
any claim is based on contract or tort, for any special, consequential, indirect or
incidental damages, including, but not limited to, lost profits or revenue, arising
out of or in connection with this Agreement or the Work performed in connection
with this Agreement.
9.7 Legal Action. In addition to any other rights or remedies, either party
may take legal action, at law or at equity, to cure, correct or remedy any default, to
recover damages for any default, to compel specific performance of this
Agreement,to obtain injunctive relief, or to obtain any other remedy consistent with
the purposes of this Agreement.
9.8 Termination Prior To Expiration Of Term. This section shall govern any
termination of this Agreement, except as specifically provided in the following
Section 8.8 for termination for cause. City reserves the right to terminate this
Agreement at any time, with or without cause, upon thirty (30) days' written notice
to Design-Build Consultant. Upon receipt of any notice of termination, Design-Build
Consultant shall immediately cease all services hereunder except such as may be
specifically approved by the Contract Officer. Design-Build Consultant shall be
entitled to compensation for all services rendered prior to receipt of the notice of
termination and for any services authorized by the Contract Officer thereafter in
accordance with the Schedule of Compensation or such as may be approved by the
Contract Officer, except as provided in Section 9.3.
9.9 Termination for Default of Design-Build Consultant. If termination is due
to the failure of Design-Build Consultant to fulfill its obligations under this
Agreement, City may, after compliance with the provisions of Section 9.2, take over
work and prosecute the same to completion by contract or otherwise, and Design-
Build Consultant shall be liable to the extent that the total cost for completion of the
services required hereunder exceeds the compensation herein stipulated (provided
that City shall use reasonable efforts to mitigate such damages), and City may
withhold any payments to Design-Build Consultant for the purpose of setoff or
partial payment of the amounts owed City as previously stated in Section 9.3.
9.10 City may terminate performance of the Work under this Agreement in
whole, or from time to time in part, for convenience, whenever City determines that
such termination is in City's best interests. In the event City terminates this
Agreement for convenience, Design-Build Consultant shall be entitled to recover its
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costs expended up to the termination plus reasonable profit thereon to the
termination date, up to the amount that Design-Build Consultant would have
otherwise earned under the Agreement up to the date of the termination, but may
recover no other cost, damage or expense. If such part terminated is severable or
priced separately in the Agreement, however, then such severable or separate
pricing shall determine the deductive price for the termination.
9.11 In the event a Termination for Default is later determined to have been
made wrongfully or without cause, then the termination shall be treated as a
Termination for Convenience, and Design-Build Team shall have the recovery rights
enunciated in Section 9.10 above. No other loss cost, damage, expense or liability
may be claimed, requested or recovered by Design-Build Team.
9.10 Attorneys' Fees. If either party commences an action against the other
party arising out of or in connection with this Agreement, the prevailing party shall
be entitled to recover reasonable attorneys' fees and costs of suit from the losing
party.
10.0 CITY OFFICERS AND EMPLOYEES; NONDISCRIMINATION.
10.1 Non-liability of City Officers and Employees. No officer or employee of
City shall be personally liable to Design-Build Consultant, or any successor in
interest, in the event or any default or breach by City or for any amount which may
become due to Design-Build Consultant or to its successor, or for breach of any
obligation of the terms of this Agreement.
10.2 Conflict of Interest. No officer or employee of City shall have any
personal interest, direct or indirect, in this Agreement nor shall any such officer or
employee participate in any decision relating to the Agreement which affects his or
her personal interest or the interest of any corporation, partnership or association
in which she or he is, directly or indirectly, interested, in violation of any State
statute or regulation. Design-Build Consultant warrants that it has not paid or given
and will not pay or give any third party any money or general consideration for
obtaining this Agreement.
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Design-Buildp Consultant represents that it is familiar with Section1090 and
Section 87100 et seq. of the Government Code, and that it does not know of any
facts that constitute a violation of said sections.
Design-Build Consultant represents that it has completely disclosed to City all
facts bearing upon any possible interests, direct or indirect, which Design-Build
Consultant believes any member of City, or other officer, agent or employee of City
or any department presently has, or will have, in this Agreement, or in the
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performance thereof, or in any portion of the profits thereunder. Willful failure to
make such disclosure, if any, shall constitute ground for termination of this
Agreement by City for cause. Design-Build Consultant agrees to comply with all
conflict of interest codes adopted by the City and its reporting requirements.
Design-Build Consultant covenants that it presently has no interest, and shall
not have any interest, direct or indirect, which would conflict in any manner with
the performance of Work required under this Agreement. Without limitation,
Design-Build Consultant represents to and agrees with City that Design-Build
Consultant has no present, and will have no future, conflict of interest between
providing City the Work hereunder and any interest Design-Build Consultant may
presently have, or will have in the future, with respect to any other person or entity
(including but not limited to any federal or state wildlife, environmental or
regulatory agency) which has any interest adverse or potentially adverse to City, as
determined in the reasonable judgment of City. The provisions of this Section shall
remain fully effective indefinitely after termination of Work to City hereunder.
Design-Build Consultant acknowledges and agrees that, in the performance of
the Work under this Agreement or in the contemplation thereof, Design-Build
Consultant may have access to private or confidential information which may be
owned or controlled by City and that such information may contain proprietary or
confidential details, the disclosure of which to third parties may be damaging to
City. Design-Build Consultant agrees that all information disclosed by City to or
discovered by Design-Build Consultant shall be held in strict confidence and used
only in performance of the Agreement. Design-Build Consultant shall exercise the
same standard of care to protect such information as a reasonably prudent Design-
Build Consultant would use to protect its own proprietary data, and shall not accept
employment adverse to City's interests where such confidential information could
be used adversely to City's interests. Design-Build Consultant agrees to notify City
immediately in writing if it is requested to disclose any information made known to
or discovered by Design-Build Consultant during the performance of or in
connection with this Agreement.
Any publicity or press releases with respect to the Project or Work shall be
under City's sole discretion and control. Design-Build Consultant shall not discuss
the Work or Project, or matters pertaining thereto, with the public press,
representatives of the public media, public bodies or representatives of public
bodies, without City's prior written consent. Design-Build Consultant shall have the
right, however, without City's further consent, to include representations of Work
among Design-Build Consultant's promotional and professional material, and to
communicate with persons or public bodies where necessary to perform under this
Agreement.
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Design-Build Consultant shall not employ, or attempt to employ, any person
who is or was employed by City at any time that this Agreement is in effect, during
the term of this Agreement and for a period of six months after the termination of
this Agreement or the completion of the Work, without the written consent of the
City.
Design-Build Consultant and City agree that Design-Build Consultant's unique
talents, knowledge and experience form a basis for this Agreement and that
therefore the services to be performed by Design-Build Consultant under this
Agreement are personal in character and neither this Agreement nor any duties or
obligations hereunder shall be assigned or delegated by Design-Build Consultant
unless approved by written instrument executed and approved in the same manner
as this Agreement.
The provisions of this Section shall remain fully effective indefinitely after
termination of Work to City hereunder.
10.3 Covenant against Discrimination. Design-Build Consultant shall not
discriminate against any employee or applicant for employment, nor against any
subconsultant or applicant for a subcontract, because of race, color, religious creed,
age, sex, actual or perceived sexual orientation, national origin, disability as defined
by the ADA or veteran's status. To the extent applicable, Design-Build Consultant
shall comply with all federal, state and local laws (including, without limitation, City
ordinances, rules and regulations) regarding non-discrimination, equal
employment opportunity, affirmative action and occupational-safety-health
concerns, shall comply with all applicable rules and regulations thereunder, and
shall comply with same as each may be amended from time to time. Design-Build
Consultant shall provide all information reasonably requested by City to verify
compliance with such matters. Design-Build Consultant stipulates, acknowledges
and agrees that City has the right to monitor Design-Build Consultant's compliance
with all applicable non-discrimination requirements, and may impose sanctions
upon a finding of a willful, knowing or bad faith noncompliance or submission of
information known or suspected to be false or misleading.
10.4 Confidentiality. Any information, whether proprietary or not, made
known to or discovered by Design-Build Consultant during the performance of or
in connection with this Agreement for City, will be kept confidential and not be
disclosed to any other person. Design-Build Consultant will immediately notify the
City in writing if it is requested to disclose any information made known to or
discovered by during the performance of or in connection with this Agreement.
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These conflict of interest, confidentiality and future service provisions and
limitations shall remain fully effective indefinitely after termination of services to
the City hereunder.
11.0 MISCELLANEOUS PROVISIONS
11.1 Notice. Any notice, demand, request, consent, approval, communication
either party desires or is required to give the other party or any other person shall
be in writing and either served personally or sent by prepaid, first-class mail to the
address set forth below. Either party may change its address by notifying the other
party of the change of address in writing. Notice shall be deemed communicated
forty-eight (48) hours from the time of mailing if mailed as provided in this section.
To City: To Design-Build Consultant:
CITY OF CATHEDRAL CITY HORIZONS CONSTRUCTION COMPANY
Attn: Tami E. Scott, MBA Attn: Hatem Ibrahim
Administrative Services Director President, Design Build Operations
68-700 Avenida Lalo Guerrero 432 W. Meats Ave
Cathedral City, CA 92234 Orange, CA 92865
11.2 Integrated Agreement. This Agreement contains all of the agreements of
the parties and all previous understanding, negotiations and agreements are
integrated into and superseded by this Agreement. This Agreement shall
supersede all prior or contemporaneous purchase orders, letter agreements or any
other agreements (oral or written) that may apply to Services. This Agreement and
any written modification shall represent the entire and integrated agreement
between the parties hereto regarding the subject matter of this Agreement, shall
constitute the exclusive statement of the terms of the parties' agreement, and shall
supersede any and all prior negotiations, representations or agreements, written or
oral, express or implied, that relate in any way to the subject matter of this
Agreement or written modification. All prior negotiations are merged into this
Agreement and shall be inadmissible in any enforcement of this Agreement.
11.3 Amendment. This Agreement may be amended at any time by the
mutual consent of the parties by an instrument in writing signed by both parties.
11.4 Severability. In the event that any one or more of the phrases, sentences,
clauses, paragraphs, or sections contained in this Agreement shall be declared
invalid or unenforceable by a valid judgment or decree of a court of competent
jurisdiction, such invalidity or unenforceability shall not affect any of the remaining
phrases, sentences, clauses, paragraphs, or sections of this Agreement which are
hereby declared as severable and shall be interpreted to carry out the intent of the
parties hereunder.
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Should any part, term or provision of this Agreement or any of the Contract
Documents, or any document required herein or therein to be executed or
delivered, be declared invalid,void or unenforceable, all remaining parts,terms and
provisions shall remain in full force and effect and shall in no way be invalidated,
impaired or affected thereby. If the provisions of any law causing such invalidity,
illegality or unenforceability may be waived, they are hereby waived to the end that
this Agreement and the Contract Documents may be deemed valid and binding
agreements, enforceable in accordance with their terms to the greatest extent
permitted by applicable law. In the event any provision not otherwise included in
the Contract Documents is required to be included by any applicable law, that
provision is deemed included herein by this reference (or, if such provision is
required to be included in any particular portion of the Contract Documents, that
provision is deemed included in that portion).
11.5 Authority. The persons executing this Agreement on behalf of the parties
hereto warrant that they are duly authorized to execute this Agreement on behalf
of said parties and that by so executing this Agreement the parties hereto are
formally bound to the provisions of this Agreement.
11.6 California Law. This Agreement shall be deemed to have been executed
in the City of Cathedral City, Riverside County, California. Enforcement of this
Agreement shall be governed by the laws of the State of California, excluding its
conflict of laws rules. The exclusive venue for all litigation arising from or relating
to this Agreement shall be in Riverside County, California.
11.7 No Third Party Beneficiaries. Except as expressly provided in this
Agreement, nothing in this Agreement shall operate to confer rights or benefits on
persons or entities not party to this Agreement.
28
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
dates stated below.
CITY OF CATHEDRAL CITY, DESIGN-BUILD CONSULTANT:
a Cali :,rnia municipal corporation
/41-"Att-t By:
Charles P. Mc Clendon, City Manager
Name:
Dated: M(.A �1, 2(0Z 1
J
ITitle:
ATTEST:
Tracey 4 Inez, ity Clerk,
APPROVED S TO RM:
Eric Vail, City Attorney
City of Cathedral City, California
29
i
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
dates stated below.
CITY OF CATHEDRAL CITY, DESIGN-BUILD CONSULTANT:
a California municipal corporation Horizons Construction Co. Intl, Inc.
By:
Charles P. Mc Clendon, City Manager
Name: an Kotrash
Dated:
Title: V. President
ATTEST:
Tracey Martinez, City Clerk,
APPROVED AS TO FORM:
Eric Vail, City Attorney
City of Cathedral City, California
29
I
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other offices completing this certificate verifies only the identity of the
Individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of CALIFORNIA
County of ORANGE
On June 4, 2021 before me YAZMIN BARRERA VALDES, NOTARY PUBLIC
Personally appeared KINAN KOTRASH
Z who proved to me on the basis of satisfactory evidence to be the person(s)
whose names) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity (les), and that by his/her/their signatures) 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.
VAZMIN BARRERA VALDES
eCN Notary Public-California
• "'.�' ; Orange County• e •`: ai) Commission a 2241343 "ivj w,
E Jun 2.2022
... lax Cry�,m:.Expires �/-i�'
signature of Notary
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and
could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
❑ INDIVIDUAL Cathedral City Agreement— 29 pages
❑ CORPORATE OFFICER Cathedral City Amphitheater
❑ LIMITED
❑ PARTNER(S)
❑ ATTORNEY-IN-FACT
❑ TRUSTEE(S)
❑ GUARDIAN/CONSERVATOR
❑ OTHER:
SIGNER IS REPRESENTING: Horizons Construction Co. Int'I, Inc.
NAME OF PERSON(S) OR ENTITY (IES)
Exhibit A
Scope of Services
Design-Build Consultant shall furnish all necessary labor, material, equipment,
transportation and services for City Project No. FAC 2021-02, Design-Build Services for the
Cathedral City Amphitheater, in the City of Cathedral City, California pursuant to the
Request for Proposal, dated January 28, 2021, the Special Requirements presented in
Exhibit D herein, Design-Build Consultant's Updated Scope of Work, dated May 26, 2021 all
of which documents shall be considered a part hereof as though fully set herein, and the
Design-Build Consultant's Scope of Work attached and made a part herof.
30
Design Build Services Cathedral City Community Amphitheater FAC 2021-02
Exhibit A—Detailed Scope of Work May 26,2021
Project Understanding and Approach
The exhibits that were prepared for the new enhancements for the Cathedral City Community Amphitheater provide the
basis for design and program intent for the project. The Horizons/SVA Team will execute the design as proposed and verify
the criteria for the placement of the concrete slab for the mobile lighting and sound position as well as the truss system for the
stage lighting and speaker systems to ensure the optimum installation of the stage lighting and audio components selected.
Prior to the kick-off meeting with the Cathedral City staff and stakeholders the Horizons/SVA Team will review the relative
drawings, documents, Geotech reports and surveys along with existing city standards and service contracts with preferred
vendors. A field visit to the site would be scheduled to inspect existing site conditions and verify the current Cathedral City
owned sound equipment.
The kick-off meeting will identify the main contacts for the Cathedral City and the Horizons/SVA Team as well as their
respective roles in the project. The scope of work will be defined,and the limits of work will be verified by both entities. This
initial meeting with the City's technical and sound staff would be used to review conditions and discuss the sound system
design and achieve a consensus to proceed with design intent.
To ensure the proposed sound system is optimally designed the Horizons/SVA Team will collaborate with the EAW
representative and Sound contractor to assist with the design and to utilize EASE (Acoustic Simulation Software for
Integrators, Engineers&Acoustical Consultants). Using this EASE software will assist in meeting the requirements for SPL STI,
and other demands of the sound system performance.The advantage is detailed,realistic modeling and simulation of venue
acoustics and sound system performance professional data assessment and verification. Additionally, EASE software will
identify obstacles that would remain hidden without simulation as well as analyze and solve acoustical problems before they
arise. Even though the performance space is outdoors, proper sound coverage for the intended audience area can be
quantified. Loudspeaker line array design will be designed and specified with the appropriate amount of loudspeaker and
subwoofer cabinets.
The specifications for the proposed stage lighting will need to be verified with the City and events staff to verify the correct
type of stage lighting aligns with the venues that are anticipated. As a considerable investment the lighting installation must
be able to endure the environmental conditions of the desert in a 24/7 and 365 days without considerable performance
degradation. During construction the design-build theatre consulting team would provide shop drawing submittal reviews,
response to contractor RFI's, onsite construction observation to answer field questions, and onsite punch list reviews to
recommend system acceptance by the City. The design-build team would assure a cost effective and technically appropriate
stage lighting system that will allow the community to visually enjoy performances in the amphitheater.
The project schedule will be presented along with recommendations on maintaining the proposed timeline from preparing
the construction documents to completion of the enhancements. Project progress reporting will be provided at established
intervals with project status, milestone dates and project related clarifications. Any opportunities to improve the schedule
during the duration of the project will be shared and discussed.
In preparation of the 70%CD Package the Horizons/SVA Team will verify the basis of design with respect to the selection of
products to meet the project objectives. This process will help identify long lead items and their impact to the project
schedule, if any.Where appropriate and necessary to maintain the schedule,some products will need to be pre-procured as
soon as the NTP is issued. Off the shelf products will be considered pending city approval such as the truss system for the
stage lighting and speaker systems provided they meet the structural design criteria such as structural integrity and
serviceability.
The Horizons/SVA Team has established a long history with their cadre of engineers and sub-trade contractors on similar
projects that underscores team collaboration in delivering a project on schedule and budget. All team members are located in
close proximity with each other that will facilitate any in-person meetings in addition to virtual meetings on various platforms.
With the team's familiarity with performance venues coordination of consultants and trades allow a seamless transition from
the design to construction. The continuity of team members from the start of construction to completion ensures that project
knowledge and information are maintained throughout the duration of the project.
As part of the 70%CD Package for the city's review and comments the Horizons/SVA Team will provide a page by page review
of the drawing set that will provide immediate feedback that will be incorporated into the set. Review by the City's technical
and sound staff of the design and equipment list will be paramount to confirm equipment locations or sound equipment
budget. While three days have been allocated for the City's review this page turning review will jump start the process of
addressing the City's comments until the formal written and follow-up comments and recommendations are issued.
Design Build Services Cathedral CityCommunityAmphitheater FAC 2021-02
Exhibit A—Detailed Scope of Work May 26,2021
In addition to the addressing the city's comments and issues the completion of the 100%CD Package will include all revised
drawings and details including the finalization of the sound system as well as the lighting components. Similar to the review
conducted at the 70%CD Package, the Horizons/SVA Team will conduct a final page turning review to ensure all previous
comments have been satisfactorily addressed and any new comments are included prior to submitting the 100% CD
Package to the Building Department for Plan Check Review.
During the period when the 100%CD Package is in Plan Check Review,any allowable site work not requiring a permit will be
performed such as mobilization,clearing and grubbing the site and excavation for footings and trenching. At the completion
of the Plan Check Review the Team will review the comments and revisions with the Building Department to ensure the
comments and concerns will be addressed and returned expeditiously.
Once Plan Check has approved the 100%CD Package and the permit has been issued,then construction can fully mobilize.
The Horizons/SVA Team will work with and guide the Sound System contractor during the installation of the sound system
equipment, program audio processors, set up wireless microphone system.The Sound System contractor will work closely
with the speaker manufacturer to commission the sound system and train the City's technical staff.
The construction team uses quality control program to ensure that quality work is performed consistent with the City's
expectations, in accordance with contract drawings and specifications, and in compliance with applicable regulations. The
typical design quality control checklist includes,but is not limited to the following:
1. Safety meetings and strict adherence in following Covid-19 Protocols
2. Understanding a detailed project scope of work
3. Adherence to design scope of work
4. Adherence to project flowchart
5. Adherence to Schedule Detailed field review
6. Constructability and Coordination reviews of the drawings and specifications during design development.
7. During Construction,implementing safe and effective means and methods to assure completion at the utmost quality,
safety and schedule efficiency.
The construction of the concrete slab for the mobile lighting and audio position and footings for the superstructure that
supports the stage lighting and speaker systems are to be performed simultaneously. As the vertical supports of the
superstructure are installed other trades will perform the rough-in for the electrical and AV systems. The AV room at the stage
will be prepared for the new equipment.
The tasks related to the stage lighting will commence with the verification of the mounting locations for all wiring devices with
the lighting contractor. All data cable types and wiring topologies will be verified based on the system manufacturer's
requirements. The early release of backboxes or other equipment required for rough-in will be coordinated along with the
pre-configuring and testing of all installed intelligent stage lighting fixtures. Prior to the initial system commissioning there will
be multiple opportunities to monitor jobsite progress and to coordinate with the lighting contractor. All stage lighting data
wiring connected to the stage lighting dimming and control equipment will be terminated according to the specifications
along with the testing of all Ethernet network segments.
Energizing the system, preliminary checks and testing on the sound equipment and lighting will be performed to ensure the
system is functional and operational as planned and designed. Sound tests to include verifying proper sound levels with a
sound meter at various point in audience area. Tests using EASERA (Electronic Acoustic System Evaluation Response
Analysis) is a full-featured measurement application for Win-based computers that utilizes off-the-shelf audio hardware to
perform electrical and acoustical measurements of sound systems. This test is performed with a calibrated microphone, USB
interface and laptop computer.
Site inspections conducted throughout the construction of the project will be considered completed and the project will
achieve Substantial Completion status. A punch walk conduced with the City and the Horizons/SVA Team will identify any
work that does not meet the City's approval to be addressed. Immediately after all work that has been completed to address
the City's concerns,the project will be considered complete and formally accepted by the City.
Final deliveries include all warrantees, operating and maintenance manuals and training to be provided to the City for their
staff and records including a complete As-Built record for the City to operate and maintain the project. Training will consist of a
full overview of the installed sound system equipment connectivity and daily operation. In addition to testing the systems at
the completion of the project a representative from the Sound System contractor as well as the system designer will be at the
first city event to observe and monitor the event.
Design Build Services Cathedral City Community Amphitheater FAC 2021-02
Exhibit A— Detailed Scope of Work May 26, 2021
Work Plan
Basic Approach
1.Narrative(s)detailing the basic approach.
The revised schedule for the Cathedral City Amphitheater Project seeks to deliver the completed project this FalL To meet the
schedule the Horizons/SVA team will seek to procure long lead items early in the process after reviewing these products/
systems with the City for their acceptance of the products and/or systems. Depending on the timing for long lead items the
possibility to procuring these items early may afford some relief on the overall schedule.
Preparation from the City's prepared Schematic Design to a 70%construction document set for the City's review is expected
to be completed in one week after the Notice-to-Proceed is issued. Confirmation and consensus with the City staff on the
design and sound equipment and lighting will be made during this week as part of the first deliverable. In order to maintain
the schedule three days have been identified for the City to provide their review of the first submittaL
Advancement of the drawings will continue duringthisperiod as well as finalization on the sound system and lighting
9 Y 9 9
systems. The preparation of the 100%CD Package is slated to be submitted for Plan Check within 8 weeks which includes
the 70% Package and City review milestones. Any opportunities to shorten this process as well as the review period will be
discussed during the duration of the project. Equally,a request for expediting the City's Plan Check review may help in saving
time in the overall schedule.
During the period when the 100%CD Package is in Plan Check Review,any allowable site work not requiring a permit will be
performed such as mobilization,site clearing/grubbing and excavation for footings and trenching. At the completion of the
Plan Check Review the Team will review the comments and revisions with the Building Department to ensure the comments
and concerns will be addressed and returned expeditiously.
Once Plan Check has approved the 100%CD Package and the permit has been issued,then construction can fully mobilize.
The construction team uses quality control program to ensure that quality work is performed consistent with the City's
expectations, in accordance with contract drawings and specifications,and in compliance with applicable regulations. The
typical design quality control checklist includes,but is not limited to the following:
1. Safety meetings and adherence to Covid-19 Protocols in effect
2. Understanding a detailed project scope of work
3. Adherence to approved design scope of work
4. Adherence to project flowchart
5. Adherence to Schedule Detailed field review
6. Constructability and Coordination reviews of the drawings and specifications during design development
7. During Construction,implementing safe and effective means and methods to assure completion at the utmost quality,
safety and schedule efficiency.
The construction of the concrete slab for the mobile lighting and audio position and the footings for the superstructure for the
stage lighting and speaker system are to be performed simultaneously. As the construction of the superstructure continues
other trades will perform the rough-in for the electrical and AV systems. Lighting fixtures and components will be verified with
pre-configuring and testing of all installed intelligent stage lighting fixtures as well as the testing of the stage light dimming
and control equipment. All stage lighting data wiring connected to the stage lighting dimming and control equipment will be
terminated per specifications with the testing of all Ethernet network segments. The AV room at the stage will be prepared
for the new equipment. A detailed test report will be provided to the Theatre Consultant to confirm that the system and its
related components have been properly configured.
Energizing the system and preliminary checks on the equipment and lighting will be performed to ensure the system is
functional and operational as planned and designed. Site inspections conducted throughout the construction of the project
will be considered completed and the project will achieve Substantial Completion status. A punch walk conducted with the
City and the Horizons/SVA Team will identify any work that does not meet the City's approval to be addressed. Immediately
after alt work that has been completed to address the City's concerns,the project will be considered complete and formally
accepted by the City.
Design Build Services Cathedral City Community Amphitheater FAC 2021-02
Exhibit A—Detailed Scope of Work May 26,2021
Final deliverables include all warrantees,operating and maintenance manuals and training to be provided to the City for their
staff and records, including a complete As-Built record set for the City to operate and maintain the project. Training will
consist of a full overview of the installed sound system equipment connectivity and operation.
Conceptual Layout(s)of Building Systems
For the mobile lighting and audio controls position a concrete slab will be constructed conforming to the design
recommendations identified in the Geotech report. A small pedestal for the power and signal will be provided at the slab that
will connect to the existing conduit located underground that was previously installed.
The concrete foundation system for the superstructure that supports the stage lighting and speaker system will be designed
to address seismic and wind loading forces that are established for this region. The design of the footings will equally follow
the design recommendations provided by the Geotech report. Additionally,the superstructure will be designed for minimal
deflection to limit the effects of the wind on the lighting during performances.
Proposed Systems
The design-build team will provide to the City design consulting services for the stage lighting equipment system including
lighting data DMX and network distribution, lighting power circuitry distribution, technical control booth requirements,
design criteria requirements for the stage lighting towers, and detailed specifications for new exterior rated stage lighting
fixtures and accessories. All design and construction documents would be prepared in collaboration with the City and with
the advice of the theatrical equipment dealer and the specialty electrical contractor.
For the light fixtures the appropriate Chauvet Ovation 910FC IP fixtures and related components and cabling will provide the
desired effects for various performances. The fixtures located on the truss will be sufficient to create the effects for live events
and can be augmented in the future with the inclusion of additional fixtures.
Approach to Maintaining and Servicing Proposed Systems
To maximize the life expectancy of the lighting fixtures the protection of the fixtures after performances from the elements will
preserve performance. These can be covered with shrouds and would be applicable for the speakers as well. At each
performance the adjustment of the fixtures will need to be performed and monitored. Ideally these fixtures are housed in
enclosures if exposed for extended periods of time.
Both the lighting and sound systems can be tailored to accommodate various venues and the protocols for set up include
software that optimizes audience enjoyment through digital microphones within the audience area. User and maintenance
manuals will be provided for all of the sound equipment speakers and lighting fixtures and will include training on the
specific products.
Proven Track Record(s)of the Proposed Systems and Vendors
EAW speakers is a global company and has a manufacturer's representative,Quantum ST,that is based in Santa Ana close to
the home office of SVA Architects. EAW produces speaker systems that are specifically for various venues and are preferred
by the City for the installation at the new amphitheater. These systems are data compatible with EASE software that allows
the sound designer and engineer to perform tests and conduct troubleshooting.
Design Build Services Cathedral City Community Amphitheater FAC 2021-02
Exhibit A—Detailed Scope of Work May 26, 2021
-.11011°111.
7 P21
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Exhibit B
Schedule of Compensation
Payment shall be on a "Lump Sum Fixed Fee" basis in accordance with the
Contractors Schedule of Compensation attached herewith for the work tasks
performed in conformance with Section 2.1 of the Agreement. Total compensation
for all work performed under the Agreement shall not exceed Four Hundred
Eighteen Thousand, Six Hundred Fifty Dollars, and 0 Cents ($418,650.00). The
Contract Sum shall be paid to Design-Build Consultant in installment payments
made on a monthly basis and in an amount identified in Design-Build Consultants
Schedule of Compensation attached hereto for the work tasks performed and
properly invoiced by Design-Build Consultant.
Compensation for Additional Services approved in advance by the Contract
Manager pursuant to Section 1.6 of this Agreement, "Additional Services," shall be
paid for in an amount agreed to in writing by both City and Design-Build Consultant
in advance of the Additional Services being rendered by Design-Build Consultant.
31
Design Build Services Cathedral City Community Amphitheater FAC
Exhibit B—Fee Schedule 2021-02
May 26,2021
CATHEDRAL CITY AMPHITHEATER ENHANCEMENTS OPTION 3: A/V THEATER STRUCTURE/CONTROL PLATFORM
DESIGN COST PROPOSAL
ITEM NO. I I DESCRIPTION VALUE
Professional Design and Engineering Services
01 Design Development&Construction Documents(Arch.Structural,Electrical and A/V) $ 76,000.00
02 Plan Check&Approval $ 5,190.00
03 Construction Administration $ 20,760.00
SUBTOTAL DESIGN AND ENGINEERING $ 101,950.00
CONSTRUCTION COST PROPSAL
ITEM NO. Area DESCRIPTION VALUE
General Requirements
01 Supervision and Management $ 40,000.00
02 Bond and Insurance $ 11,250.00
03 Mobilization/Temp Facilities(Fences,Etc.) $ 3,800.00
04 Site Survey and Layout $ 2,200.00
05 Cleanup and Waste Management $ 5,550.00
06 Demobilization $ 2,000.00
07 Closeout Documentation $ 1,800.00
Construction
Control Platform
08 Clear and Grub/Excavation $ 1,800.00
09 Concrete Slab and Railing $ 14,150.00
10 Rough Electrical and Low Voltage $ 7,500.00
11 Backfill and Grading $ 2,500.00
12 Finish Electrical $ 2,500.00
Lighting&Sound
13 Foundation $ 6,600.00
14 Steel Posts and Truss $ 16,800.00
15 A/V Structure Fabrication and Installation $ 14,000.00
16 Lighting Equipment and Materials $ 98,000.00
17 Sound Equipment and Material $ 24,700.00
18 Lighting Installation,Testing and Training $ 13,250.00
19 Sound Systems Installation,Testing and Training $ 39,800.00
20 Rough Electrical and Low Voltage $ 5,000.00
21Finishing and Patch Grounds. $ 3,500.00
SUBTOTAL CONSTRUCTION $ 316,700.00
TOTAL DESIGN BUILD PROJECT $ 418,650.00
Exhibit C
Schedule of Performance
Design-Build Consultant shall complete all services identified in the Scope of
Services, Exhibit "A" of this Agreement in accordance with the attached Project
Schedule ("Time Line"), attached hereto and incorporated herein by this reference.
32
Design Build Services Cathedral City Community Amphitheater FAC 2021-02
Exhibit C—Timeline Schedule May 26, 2021
f,ct Ono Rem Ruly 7,
Iv
01-,,01151/011 AI, JUN I. LV(: !FP O[17 NOV EM.t: .IwN PSI
U LIUI WI 51c 10 ""I' A , 17 td 3 87 11 71 70 e1 II 11 14 02 85 It 0 r K 1 70 27 U II 10 75 PI 08 15 77 77 PS 13 70 77 83 II 17 71 11 07 II 71 70
GENERAL
0050 NOTICE OF AWARD OF CONTRACT 0 0 12MAY21 .NOTICE OF AWARD OF CONTRACT
OP VON AND PROCUREMENT
CONSTRUCTION DOCUMENTS(70%)
PR010 A/E&OWNER'S INPUT!INTERFACE 8 8 12MA1•21 21MAY21 '+anA7E&OWNER'S INPUT I INTERFACE
PRO20 DESIGN&MILESTONES REVIEW 10 10 24MAY21 07JUN21DESIGN&MILESTONES REVIEW
PR030 INITIAL PRESENTATION 1 1 08JUN21 08JUN21 INITIAL FRESENTATON
CONSTRUCTION DOCUMENTS(100%) r.
PRO60 CONSTRUCTION DRAWINGS 20 20 09JUN21 07JUL21 CONSTRUCTION DRAWINGS
PROM OWNER RESERVATIONS(FINAL REVEWS) 10 10 08JUL21 21JUL21 • LANNI OWNER RESERVATIONS(FINAL REVEWS)
PR000 PERMIT SUBMISSION FOR PLAN REVIEW 10 10 22JUL21 04AUG21 1 PERMIT SUBMISSION FOR PLAN REVEW
FINAL REVEWSI PERMITS • ti
PRI'0 FINAL COORDINATION&BJDGET REVIEW 4 4 O5AUC21 10AUG21 }a FINAL COORDINATION&BUDGET REVIEW
PR120 IPEF.MITS FINAL REVIEW I ISSUANCE I 10 10 11AUG21 24AUG21 LPERMITS FINAL REVEW I ISSUANCE
PROCUREMENT JJ
P100 PURCHASE AU)IOVISUAL LONG LEAD 35 35 05AUC21 23SEP21 PURCHASE AUDIOVISUAL LONG LEAD
P112 PURCHASE/FAB.POSTS AND TRUSSES 30 30 05AUG21 16SEP21 +► PUFtCHASEIFAB.POSTSANDRIISSES.
CONSTRUC7ION -
GENERAL
001) NOTICE TO PROCEED 1 1 30AUG21 30AUG21 -1NOTICE TO PROCEED
G02) 1.403ILIZATION 2 2 31AUG21 01SEP21 sMOBLVATION
CON-Rot.PLARFORM
01-100 CLEAR&GRUB/EXCAVATION 3 3 02SEP21 07SEP21 CLEAR&GRLB/EXCAVATION
C1-110 POWER!LOW VOLTAGE GROUND BLD( 4 4 08SEP21 13SEP21 POWER f LOW VOLTAGE GROUND BOX
C1-120 CONCRETE SLAB!PLATFORM 8 8 14SEP21 23SEP21 t..,MMI CONCRETE SLAB:PLATFORM
01-130 ROUGH ELECTRICAL 4 4 24SEP21 29SEP21 40OLGH ELECTRICAL
01-150 RAMP!RAILING 6 6 30SEP21 '07OCT21 L.. RAMP 1 RAILING
SOUND I LIGHT STRUCTURE
C2-100 FOUNDATION 5 5 16SEP21 22SEP21 -ate FOUNDATION
C2-110 LIGIT1NG I SOUND POSTS 8 TRUSSES 8 8 23SEP21 040CT21 - 'LIGHTING I SOUND POSTS&TRUSSES
C2-120 ELECTRICAL!L.V.ROUGH-IN 5 5 050CT21 110CT21 ELECTRICAL IL.V.ROUGH-IN
C2-130 FINAL CONNECTIONS!GROUND PATCH 6 6 1200121 190CT21 ;:•111 FINAL CONNECTICNS I GROUND PATCH
STAGE 1 ELECTRIC ROOM
C3-100 ELECTRICAL AND LV ROUGH 7 7 15SEP21 23SEP21 .. ELfCTRAL AND LV ROUGH
C3-110 WIRING SERVICES PER DESIGN 8 8 30SEP21 110CT21 . .2441101p1WIRING SERVICES PER DESIGN
03-120 FINAL FINISHES AND PRE-TESTS 6 6 120CT21 190CT21 ;=FINAL FINISHES AND PRE-TESTS
PROJECT CLOSE OUT
P00 SUBTANTIAL COMPLETION 0 0 190CT21 --- SUBT.4NTtAL COMPLETION
P10 FINAL INSPECTIONS 2 2 200CT21 210CT21 FINAL INSPECTIO'IS
P20 PUNCH WALK 2 2 220CT21 250CT21 PUNCH WALK
P30 PUNCH LIST 4 4 260CT21 290CT21 C PUNCH LIST
P40 FINAL ACCEPTANCE&OCCUPANCY 0 0 290CT21 rb FINAL ACCEPTANCE&OCCUPANCY
Exhibit D
Special Requirements
The following Project Specifications, Forms and Certifications are included and
considered part of the contract documents:
A. Section 1310 Faithful Performance Bond
B. Section 1320 Payment Bond
C. Section 1330 Worker's Compensation Insurance Certificate
D. Section 1340 Liability and Insurance Requirements
E. Section 1400 General Conditions
F. Section 1500 Supplemental General Conditions
G. Section 2000 General Project Requirements
H. Section 3000 Special Provisions
The reference to "Contractor" or "Sub-Contractor" used within these contract
documents refers to the contractor and/or sub-contractors included within the
Design-Build Consultants Team.
33
SECTION 1310
FAITHFUL PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:
THAT the City of Cathedral City, a municipal corporation, hereinafter designated the
City, has, on , 2021, awarded to Horizon Construction
Company International. Inc., hereinafter designated as the Principal, a Contract for Design-
Build Services for the Cathedral City Amphitheater, Project FAC 2021-02 and:
WHEREAS, said Principal is required under the terms of said Contract to furnish a
bond for the faithful performance of said Contract:
NOW, THEREFORE, we, the Principal, and , as
Surety, are held and firmly bound unto the City in the just and full amount of
DOLLARS ($ ) lawful money of the
United States, for the payment of which sum well and truly to be made,we bind ourselves,
our heirs, executors, administrators, and successors, jointly and severally, firmly by these
presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if said Principal, his or its
heirs, executors, administrators, successors, or assigns, shall in all things stand to and
abide by, and well and truly keep and faithfully perform the covenants, conditions, and
agreements in the said contract and any alterations made as therein provided, on his or
their part to be kept and performed, at the time and in the manner therein specified, and in
all respects according to their true intent and meaning, and shall indemnify and save
harmless, the City, its officers and agents as therein stipulated, then this obligation shall
become null and void; otherwise it shall be and remain in full force and virtue. In case suit
or other action is brought by the City to enforce the provisions of this bond, any award to
the City shall include reasonable attorney fees, expert fees, and costs as shall be fixed by
the court
It is acknowledged that the Contract provides for one-year guarantee period, during
which time this bond remains in full force and effort.
And the said Surety,for value received, hereby stipulates and agrees that no change,
extension of time, alteration, or addition to the terms of the Contract or to the work to be
performed thereunder or the specifications accompanying the same shall, in any way,
affect its obligations on this bond, and it does hereby waive notice of any such change,
extension of time, alteration, or addition to the terms of the Contract or to the work or to
the specifications. Said Surety hereby waives the provisions of Sections 2819 and 2845 of
the Civil Code of the State of California.
•
OAK#4852-3821-3337 vl
07024-0156
IN WITNESS WHEREOF, the Principal and Surety have executed this instrument
under their seals this
day of , 2021, the name and corporate seal of each corporate
party being hereto affixed and these presents duly signed by its undersigned
representative, pursuant to authority of its governing body.
Principal
(Seal)
Signature for Principal
Title of Signatory
Surety
(Seal)
Signature for Surety
Title of Signatory
Address of Surety
Phone # of Surety
Contact Person for Surety
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SECTION 1320
PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS:
THAT the City of Cathedral City, a municipal corporation, hereinafter designated the
City, has on , 2021, awarded to Horizon Construction
Company International. Inc., hereinafter designated as the Principal, a Contract for Design-
Build Services for the Cathedral City Amphitheater, Project FAC 2021-02.
WHEREAS, said Principal is required to furnish a bond in connection and with said
Contract, providing that if said Principal, or any of it or its subcontractors shall fail to pay
for any materials, provisions, or other supplies used in, upon,for,or about the performance
of the work contracted to be done, or for any work or labor done thereon of any kind, the
Surety of this bond will pay the same to the extent hereinafter set forth:
NOW, THEREFORE, we, the Principal, and , as
Surety, are held and firmly bound unto the City in the just and full amount of
DOLLARS ($ ) lawful money of the
United States, for the payment of which sum well and truly to be made, we bind ourselves,
our heirs, executors, administrators, and successors, jointly and severally, firmly by these
presents.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if said Principal, it or its heirs,
executors, administrators, successors, or assigns, shall fail to pay for any materials,
provisions, or other supplies used in, upon, for, or about the performance of the work
contracted to be done,or for any work or labor thereon of any kind or for amount due under
the Unemployment Insurance Act with respect to such work or labor, or for any amounts
due, or to be withheld pursuant to Sections 18806 of the Revenue and Taxation Code of the
State of California with respect to such work or labor, then said surety will pay the same in
or to an amount not exceeding the amount hereinabove set forth, and also will pay in case
suit is brought upon this bond, such reasonable attorney's fees to the City as shall be fixed
by the court.
This bond shall insure to the benefit of any and all persons, companies, and
corporations named in Section 3181 of the Civil Code of the State of California so as to give
a right of action to them or their assigns in any suit brought upon this bond.
And the said Surety,for value received, hereby stipulates and agrees that no change,
extension of time, alteration, or addition of the terms of the Contract or to the work to be
performed thereunder or the specifications accompanying the same shall, in any way,
affect its obligations of this bond, and it does hereby waive notice of any change, extension
of time, alteration, or addition to the terms of the contract or to the work or to the
specifications. Said Surety hereby waives the provisions of Sections 2819 and 2845 of the
Civil Code of the State of California.
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IN WITNESS WHEREOF, the Principal and Surety have executed this instrument
under their seals this
day of , 2013, the name and corporate seal of each corporate
party being hereto affixed and these presents duly signed by its undersigned
representative, pursuant to authority of its governing body.
Principal
(Seal)
Signature for Principal
Title of Signatory
Surety
(Seal)
Signature for Surety
Title of Signatory
Addressof Surety
Phone#of Surety
Contact Person for Surety
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SECTION 1330
WORKERS' COMPENSATION INSURANCE CERTIFICATE
In accordance with California Labor Code Section 1861, prior to commencement of work
on the Contract, the Contractor shall sign and file with the City the following certification:
"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 performance of the work of this contract."
Signature
Title
Date
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SECTION 1340
LIABILITY AND INSURANCE REQUIREMENTS
1.0 INDEMNIFICATION
Except for the gross negligence or willful misconduct of an Indemnified Party (as
hereinafter defined), the Contractor hereby assumes liability for and agrees to
defend (at Indemnified Parties' option), indemnify, protect and hold harmless City
and its Project Consultants, and Engineers, officers, agents, and employees
("Indemnified Parties") from and against any and all claims, charges, damages,
demands, actions, proceedings, losses, stop notices, costs, expenses (including
counsel fees), judgments, civil fines and penalties, liabilities of any kind or nature
whatsoever, which may be sustained or suffered by or secured against the
Indemnified Parties arising out of or encountered in connection with this Contract
or the performance of the Work including, but not limited to, death of or bodily or
personal injury to persons or damage to property, including property owned by or
under the care and custody of City, and for civil fines and penalties, that may arise
from or be caused, in whole or in part, by any negligent or other act or omission of
Contractor, its officers, agents, employees or Subcontractors including, but not
limited to, liability arising from:
1. Any dangerous, hazardous, unsafe or defective condition of, in or on the
premises, of any nature whatsoever, which may exist by reason of any act,
omission, neglect, or any use or occupation of the premises by Contractor,
its officers, agents, employees, or subcontractors;
2. Any operation conducted upon or any use or occupation of the premises by
Contractor, its officers, agents, employees, or subcontractors under or
pursuant to the provisions of this contract or otherwise;
3. Any act, omission or negligence of Contractor, its officers, agents,
employees, or Subcontractors;
4. Any failure of Contractor, its officers, agents or employees to comply with
any of the terms or conditions of this Contract or any applicable federal, state,
regional, or municipal law, ordinance, rule or regulation; and
5. The conditions, operations, uses, occupations, acts, omissions or negligence
referred to in Sub-subsections(1), (2), (3), and (4),existing or conducted upon
or arising from the use or occupation by Contractor on any other premises in
the care, custody and control of City.
The Contractor also agrees to indemnify City and pay for all damages or loss
suffered by City including but not limited to damage to or loss of City property, to
the extent not insured by City and loss of City revenue from any source, caused by
or arising out of the conditions, operations, uses, occupations, acts, omissions or
negligence referred to in Sub-subsections (1), (2), (3), (4) and (5).
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Contractor's obligations under this Section apply regardless of whether or not such
claim, charge, damage, demand, action, proceeding, loss, stop notice,cost expense,
judgment, civil fine or penalty, or liability was caused in part or contributed to by an
Indemnified Party. However,without affecting the rights of City under any provision
of this agreement, Contractor shall not be required to indemnify and hold harmless
City for liability attributable to the active negligence of City, provided such active
negligence is determined by agreement between the parties or by the findings of a
court of competent jurisdiction. In instances where City is shown to have been
actively negligent and where City's active negligence accounts for only a percentage
of the liability involved, the obligation of Contractor will be for that entire portion or
percentage of liability not attributable to the active negligence of City.
Contractor agrees to obtain executed indemnity agreements with provisions
identical to those set forth here in this section from each and every subcontractor or
any other person or entity involved by, for, with or on behalf of Contractor in the
performance of this agreement. In the event Contractor fails to obtain such
indemnity obligations from others as required here, Contractor agrees to be fully
responsible according to the terms of this section.
Failure of City to monitor compliance with these requirements imposes no
additional obligations on City and will in no way act as a waiver of any rights
hereunder. This obligation to indemnify and defend City as set forth here is binding
on the successors, assigns or heirs of Contractor and shall survive the termination
of this agreement or this section.
This indemnity shall survive termination of the Agreement or Final Payment
hereunder. This Indemnity is in addition to any other rights or remedies that the
Indemnified Parties may have under the law or under any other Contract Documents
or Agreements. In the event of any claim or demand made against any party which
is entitled to be indemnified hereunder, City may, in its sole discretion, reserve,
retain or apply any monies to the Contractor under this Agreement for the purpose
of resolving such claims; provided, however, City may release such funds if the
Contractor provides City with reasonable assurance of protection of the Indemnified
Parties' interests. City shall, in its sole discretion, determine whether such
assurances are reasonable.
Approval of any insurance contracts by the City does not relieve the Contractor or
subcontractors from liability under Section 1340-1.0, Indemnification. The City will
not be liable for any accident, loss, or damage to the work prior to its completion
and acceptance.
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2.0 INSURANCE REQUIREMENTS
2.1 General
Prior to the beginning of and throughout the duration of the Work, Contractor will
maintain insurance in conformance with the requirements set forth below.
Contractor will use existing coverage to comply with these requirements. If that
existing coverage does not meet the requirements set forth here, it will be amended
to do so. Contractor acknowledges that the insurance coverage and policy limits set
forth in this section constitute the minimum amount of coverage required. Any
insurance proceeds available to City in excess of the limits and coverage required in
this agreement and which is applicable to a given loss, will be available to City.
Contractor shall submit coverage verification for review and approval by the City
upon execution of the Contract.
The Notice to Proceed with the Work under this Contract will not be issued, and the
Contractor shall not commence work, until such insurance has been approved by
the City. The Contractor shall not allow any subcontractors to commence work on
its subcontract until all similar insurance required of the subcontractor has been
obtained and verified by Contractor. Such insurance shall remain in full force and
effect at all times during the prosecution of the Work and until the final completion
and acceptance thereof.
The Notice to Proceed does not relieve the Contractor of the duty to obtain such
insurance as required by Paragraph 1340-2.0 INSURANCE REQUIREMENTS.
Contractor shall provide the following types and amounts of insurance:
2.2 Commercial General Liability Policy
Commercial General Liability Insurance using Insurance Services Office
"Commercial General Liability" policy form CG 00 01 or the equivalent. Defense
costs must be paid in addition to limits. Limits shall be no less than Two Million
Dollars ($2,000,000) per occurrence for all covered losses and no less than Four
Million Dollars ($4,000,000) general aggregate.
Contractor's policy shall contain no endorsements limiting coverage beyond the
basic policy coverage grant for any of the following:
a. Explosion, Collapse or Underground Hazard(X CU).
b. Products and Completed Operations.
c. Pollution liability.
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d. Contractual liability.
Coverage shall be applicable to City for injury to employees of: contractors,
subcontractors or others involved in the project. Policy shall be endorsed to provide
a separate limit applicable to this project.
2.3 Workers' Compensation Insurance
Workers' Compensation on a state-approved policy form providing statutory
benefits as required by law with employer's liability limits no less than $1,000,000
per accident for all covered losses.
2.4 Business Auto Policy
Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 06 92
including symbol 1 (Any Auto) or the equivalent. Limits shall be no less than
$1,000,000 per accident, combined single limit. If Contractor owns no vehicles,
this requirement may be satisfied by a non-owned auto endorsement to the
general liability policy described above.
2.5 Excess or Umbrella Liability Insurance
Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit
requirements, shall pr vide coverage a at least as broad as specified for the
underlying coverage. Any such coverage provided under an umbrella liability policy
shall include a drop down provision providing primary coverage for liability not
covered by primary but covered by the umbrella. Self-insured retentions are not
permitted. Coverage shall be provided on a "pay on behalf" basis, with defense
costs payable in addition to policy limits. There shall be no cross liability exclusion
precluding coverage for claims or suits by one insured against another. Coverage
shall be applicable to City for injury to employees of Contractor, subcontractors or
others involved in the Work. The scope of coverage provided is subject to approval
of City following receipt of proof of insurance as required herein. Limits are subject
to review but in no event less than $1,000,000 per occurrence and $2,000,000
aggregate.
2.6 Course of Construction
Course of Construction insurance shall provide "all risk"coverage for the completed
value of the project. Policies shall contain the following provisions: (1) City shall be
named as loss payee; and (2) the insurer shall waive all rights of recovery against
the City.
Insurance procured pursuant to these requirements shall be written by insurers that are
authorized carriers in the state of California and with an A.M. Best rating of A-or better and
a minimum financial size of VII.
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Contractor and City agree as follows:
1. Contractor agrees to endorse the third party Commercial General Liability coverage
required herein to include as additional insureds City, its officials, employees and
agents, using standard ISO endorsement No. CG 2010 with an edition date of 1985
or equivalent. Contractor also agrees to require all contractors, subcontractors, and
anyone else involved in any way with the project contemplated by this agreement
to do likewise.
2. Any waiver of subrogation express or implied on the part of City to any party
involved in this agreement or related documents applies only to the extent of
insurance proceeds actually paid. City, having required that it be named as an
additional insured to all insurance coverage required herein, expressly retains the
right to subrogate against any party for sums not paid by insurance. For its part,
Contractor agrees to waive subrogation rights against City regardless of the
applicability of any insurance proceeds, and to require all contractors,
subcontractors or others involved in any way with the project(s) contemplated by
this agreement, to do likewise.
3. All insurance coverage maintained or procured by Contractor or required of others
by Contractor pursuant to this agreement shall be endorsed to delete the
subrogation condition as to City, or to specifically allow Contractors or others
providing insurance herein to waive subrogation prior to a loss. This endorsement
shall be obtained regardless of existing policy wording that may appear to allow
such waivers.
4. It is agreed by Contractor and City that insurance provided pursuant to these
requirements is not intended by any party to be limited to providing coverage for
the vicarious liability of City, or to the supervisory role, if any, of City. All insurance
coverage provided pursuant to this or any other agreement (express or implied) in
any way relating to City is intended to apply to the full extent of the policies involved.
Nothing referred to here or contained in any agreement involving City in relation to
the project(s) contemplated by this agreement is intended to be construed to limit
the application of insurance coverage in any way.
5. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not been
first submitted to City and approved of in writing.
6. All coverage types and limits required are subject to approval, modification and
additional requirements by the City, as the need arises. Contractor shall not make
any reductions in scope of coverage (e.g. elimination of contractual liability or
reduction of discovery period) that may affect City's protection without City's prior
written consent.
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7. Proof of compliance with these insurance requirements, consisting of binders of
coverage, or endorsements, or certificates of insurance, at the option of City, shall
be delivered to City at or prior to the execution of this Agreement. In the event such
proof of any insurance is not delivered as required, or in the event such insurance
is canceled at any time and no replacement coverage is provided, City has the right,
but not the duty, to obtain any insurance it deems necessary to protect its interests
under this or any other agreement and to pay the premium. Any premium so paid
by City shall be charged to and promptly paid by Contractor or deducted from sums
due Contractor, at City option.
8. Contractor agrees to endorse, and to require others to endorse, the insurance
provided pursuant to these requirements, to require written notice to City and the
appropriate tender prior to cancellation of such liability coverage and notice of any
material alteration of non-renewal of any such coverage, and to require contractors,
subcontractors, and any other party in any way involved with the project
contemplated by this agreement to do likewise.
9. It is acknowledged by the parties of this agreement that all insurance coverage
required to be provided by Contractor or any subcontractor, is intended to apply first
and on a primary non-contributing basis in relation to any other insurance or self
insurance available to the City.
10. Contractor agrees to ensure that subcontractors, and any other party involved with
the project that is brought onto or involved in the project by contractor, provide the
same minimum insurance coverage required of Contractor. Contractor agrees to
monitor and review all such coverage and assumes all responsibility for ensuring
that such coverage is provided in conformity with the requirements of this section.
Contractor agrees that upon request, all agreements with subcontractors and others
engaged in the project will be submitted to City for review.
11. Contractor agrees not to self-insure or to use any self-insured retentions or
deductibles on any portion of the insurance required herein and further agrees that
it will not allow any contractor, subcontractor, Architect, Engineer or other entity or
person in any way involved in the performance of work on the project contemplated
by this agreement to self-insure its obligations to City. If contractor's existing
coverage includes a deductible or self-insured retention, the deductible or self-
insured retention must be declared to the City. At that time the City shall review
options with the contractor, which may include reduction or elimination of the
deductible or self-insured retention, substitution of other coverage, or other
solutions.
12. The City reserves the right at any time during the term of the contract to change the
amounts and types of insurance required by giving the Contractor ninety (90) days
change. If such change written notice of suchg results in substantial
additional cost to the Contractor, the City will negotiate additional compensation
proportional to the increased benefit to City.
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13. For purposes of applying insurance coverage only, all contracts pertaining to the
project will be deemed to be executed when finalized and any activity commences
in furtherance of performance under this agreement.
14. Contractor acknowledges and agrees that any actual or alleged failure on the part of
City to inform Contractor of non-compliance with any insurance requirement in no
way imposes any additional obligations on City nor does it waive any rights
hereunder in this or any other regard.
15. Contractor will renew the required coverage annually as long as City, or its
employees or agents face an exposure from operations of any type pursuant to this
agreement. This obligation applies whether or not the agreement is canceled or
terminated for any reason. The insurance shall include but not be limited to
products and completed operations and discontinued operations,where applicable.
Termination of this obligation is not effective until City executes a written statement
to that effect.
16. Contractor agrees to waive its statutory immunity under any workers' compensation
statute or similar statute, in relation to the city, and to require all subcontractors and
any other person or entity involved in the project contemplated by this agreement
to do likewise.
17. Requirements of specific coverage features are not intended as limitations on other
requirements or as a waiver of anycoverage normally provided by any given policy.
q
Specific reference to a given coverage feature is for purposes of clarification only as
it pertains to a given issue, and is not intended by any party or insured to be all-
inclusive.
18. Any provision in any of the construction documents dealing with the insurance
coverage provided pursuant to these requirements is subordinate to and
superseded by the requirements contained herein. These insurance requirements
are intended to be separate and distinct from any other provision in this agreement
and are intended by the parties here to be interpreted as such.
19. All liability coverage provided according to these requirements must be endorsed
to provide a separate aggregate limit for the project that is the subject of this
agreement and evidencing products and completed operations coverage for not less
than two years after issuance of a final certificate of occupancy by all appropriate
government agencies or acceptance of the completed work by City.
20. Contractor agrees to be responsible for ensuring that no contract used by any party
involved in any way with the project reserves the right to charge City or Contractor
for the cost of additional insurance coverage required by this agreement. Any such
provisions are to be deleted with reference to City. It is not the intent of City to
reimburse any third party for the cost of complying with these requirements. There
shall be no recourse against City for payment of premiums or other amounts with
respect thereto.
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21. Contractor agrees to obtain and provide to City a copy of Professional Liability
coverage for Architects or Engineers, if any are working on this project through
Contractor. City shall determine the liability limit.
22.The Design-Build Consultan will be required to furnish a Labor and Materials bond
in the amount equal to fifty percent (50%) of the Contract price, as well as a Faithful
Performance Bond, in the amount equal to one hundred percent (100%) of the
Contract price
2.7 Change in Terms
The Contractor shall provide immediate written notice to the City of any change in terms
and conditions and/or reduction in the coverage of any nature to the insurance policies.
The notice shall be sent to:
Tami E. Scott, MBA
Administrative Services Director
City of Cathedral City
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
Phone: (760) 770-0354
Fax: (760) 202-2511
Email: TScott@cathedralcity.gov
II
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SECTION 1400
GENERAL CONDITIONS
1.0 GENERAL
1.1 Intent of Contract Documents
Where the Plans or Specifications describe portions of the Work in general terms but not in
complete detail, it is understood that only the best general practice is to prevail and that only
materials and workmanship of the first quality are to be used. Unless otherwise specified,the
Contractor shall furnish tools, equipment, and incidentals, and do all the work involved in
executing the Contract in a satisfactory and workmanlike manner.
Unless specifically noted otherwise, all sections of the Specifications and the Plans shall be
complimentary and applicable to each other.
In the event the materials and/or equipment are to be furnished by the City, as designated in
the Specific Project Requirements or as agreed on,this shall not relieve the Contractor of the
above requirements to furnish all other labor, materials, and equipment to complete the
Contract.
Words and abbreviations which have well known technical or trade meaning are used in the
Contract Documents in accordance with such recognized meanings.
1.2 Discrepancies and Omissions
Any discrepancies or omissions found in the Contract Documents shall be immediately
reported to the City Engineer who will clarify discrepancies or omissions, in writing, within a
reasonable time.
In resolving inconsistencies among two or more sections of the Contract Documents,
precedence shall be given in the following order:
1. Contract
a. Agreement
b. Permits
c. Change Orders
2. Instruction to Bidders
3. Permits issued by other agencies
4. Specific Project Requirements
5. General Project Requirements
6. Supplementary Conditions
7. General Conditions
8. Technical Specifications
9. Standard Specifications
10. Reference Specifications
11. Plans
12. Standard Plans
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1.3 Headings
Headings to parts, divisions, sections, articles, paragraphs, subparagraphs, and forms are inserted
for convenience of reference only and shall not affect the interpretation of the Contract Documents.
1.4 Penalty for Collusion
If, at any time, it is found that the person, firm, or corporation to whom the Contract has been
awarded has, in presenting any bid or bids, colluded with any other party or parties, then the
Contract shall be null and void, and the Contractor and its sureties shall be liable for loss or
damage which the City may suffer thereby, and the City may advertise for new bids for said
Work.
1.5 Successors and Assigns
The City and the Contractor, respectively, bind themselves,their partners, successors, assigns,
and legal representatives to the other party hereto and to the partners,successors,assigns,and
legal representatives of such other party with respect to all covenants, agreements, and
obligation contained in the Contract Documents. Neither party to the Contract shall assign the
Contract or sublet it as a whole without the written consent of the other.
1.6 Assignment to City
Pursuant to Public Contract Code 4551, in entering into the Contract and all subcontracts, to
supply goods, services, or materials pursuant to the Contract, the Contractor and its
subcontractors offer and agree to assign to the 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 and subcontracts. This assignment shall be made and become
effective at the time the City tenders final payment to the Contractor, without further
acknowledgment by the parties.
1.7 Rights and Remedies
The duties and obligations imposed by the Contract Documents and the rights and remedies
available thereunder shall be in addition to, and not a limitation of, any duties, obligations,
rights, and remedies otherwise imposed or available by law.
No action or failure to act by the City and its representatives or the consultants,shall constitute
a waiver of any right or duty afforded any of them under the Contract, nor shall any such action
or failure to act constitute an approval of or acquiescence in any breach thereunder, except as
may be specifically agreed in writing.
1.8 Definitions
Unless otherwise stated, the words directed, required, permitted, ordered, instructed,
designated, applicable, appropriate, sufficient, proper, desirable, necessary, prescribed,
approved, acceptable, satisfactory or words of like import, refer to actions, expressions, and
prerogatives of the City,the City Engineer.
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Masculine gender words include the feminine. References to gender, such as "workman" and
"flagman and the pronouns "he" or "his" referring to such titles, are abstract in the
specifications, used for the sake of brevity are intended to refer to persons of either sex.
Singular words include the plural and "person" includes firms, companies, and corporations.g
Where used in the Contract Documents,the following words and terms shall have the meanings
indicated. The meanings shall be applicable to the singular, plural, masculine, and feminine of
the words and terms.
Acceptance - The formal written acceptance by the City of an entire Contract which has been
completed in all respects in accordance with the Contract Documents and any modifications
thereof previously approved.
Act of God-An earthquake,flood, cyclone,or other cataclysmic phenomenon of nature. A rain,
windstorm, high water, or other natural phenomenon, which might reasonably have been
anticipated from historical records of the general locality of the work,shall not be construed as
an Act of God.
Addenda - Written or graphic instruments issued prior to the bid which modify or interpret the
Contract Documents, drawings, and specifications, by additions, deletions, clarifications, or
corrections.
Architect-The Architect responsible for the preparation of plans and specifications for the City
of Cathedral City
Bid-The offer or proposal of the Bidder submitted on the prescribed form setting forth the price
for the work to be performed.
Bond(s) - Bid, Performance, or Payment Bonds and other instruments of surety, furnished by
the Contractor and Contractor's surety in accordance with the Contract Documents.
Bidder - Any properly licensed and qualified individual, firm, partnership, corporation, joint
venture, or combination thereof, submitting a proposal for the work contemplated, acting
directly or through a duly authorized representative.
Calendar Day-Any day including legal holidays, Saturdays and Sundays.
City-The City of Cathedral City, a Municipal Corporation in the State of California.
City Engineer-The person designated, in writing, by the City to act as its representative at the
construction site and to perform construction inspection services and administrative functions
relating to this Contract. Initial contact by the Contractor with the City shall be through the City
Engineer.
City Representative-The person designated in writing by the City to act as its agent on specified
matters relating to this Contract. The City's Representative is not the City Engineer, but is
another individual who has been designated to represent the City.
Contract-The written document covering the performance of the Work as more fully described
in, but not limited to, the plans, standard specifications, special and technical provisions,
Contract bonds, proposal, addenda, and Contract Change Orders.
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Contract Change Order - A written order to the Contractor, covering changes in the plans or
quantities, or both, and establishing the basis of payment and time adjustments for the work
affected by the changes. Also referred to as a Change Order.
Contract Documents-The words"Contract Documents"shall mean any or all of, but not limited
to,the following items, as applicable:
Invitation to Bid
Instructions to Bidders
Bid Documents
Designation of Subcontractors
Bid Guaranty Bond
Contract
Acknowledgments
Performance Bond
Payment Bond
General Conditions
Supplementary General Conditions
General Project Requirements
Specific Project Requirements
Standard Specifications
State Standard Specifications
Project Plans
Standard Drawings
Addenda, if any
Executed Change Orders, if any Notice of Award
Notice to Proceed
Permits from other agencies
Each of these items is to be considered by reference as part of the Contract Documents, also
referred to as Contract.
Contract Price - The amount payable to the Contractor under the terms and conditions of the
Contract based on the price given on the bidding schedule, with adjustments made in
accordance with the Contract. The base amount given in the bidding schedule shall be either a
lump sum bid or the summation of the unit price bids multiplied by the estimated quantities set
forth in the bid form. Also referred to as Contract Amount or Contract Sum.
Contract Time- Number of calendar days stated in the Contract for the completion of the Work.
Contract Completion Date-The date on which the City accepts the work as being complete.
Contractor - The person or persons, firms, partnership, corporation, or combination thereof,
who have entered with the City, as party or parties of the second part of his or their legal
representatives.
Contractor's Plant and Equipment - Equipment, material, supplies, and all other items, except
labor, brought onto the site by the Contractor to carry out the Work, but not to be incorporated
in the Work.
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Consultant - Individuals and/or companies retained by the City to provide specific professional
services.
Days)-Calendar Day(s), unless contract time is indicated in working days.
Direct - Action of the City or City Engineer by which the Contractor is ordered to perform or
refrain from performing work under the Contract.
Field Directive - Written documentation of the actions of the City or City Engineer in directing
the Contractor. Also referred to as a Directive.
Field Order- A written instruction given to the Contractor authorizing work that is a change to
the scope of work carried out on a time and material basis.
Furnish -To deliver to the job site or other specified location any item, equipment, or material.
General Conditions - Part of the Contract Documents representing the general clauses that
establishes how the project is to be administered.
General Project Requirements- Part of the Contract Documents establishing general conditions
or requirements peculiar to the way public works projects are performed in the City of Cathedral
City.
Herein - Refers to information presented in the Project Manual.
Holidays- Legal holidays designated by the City or specifically identified in the Contract.
Install- Placing, erecting, or constructing any item, equipment, or material.
Laboratory-The designated materials testing laboratory authorized by the City to test materials
and work involved in the Contract.
Liquidated Damages - A fixed amount as prescribed in Paragraph 1500-3.0, to be paid to the
City or to be deducted from any payments due, or to become due,to the Contractor as a result
of the Contractor not completing the work in the time allowed in the specifications.
Notice of Award-A written notice by the City to the Contractor informing him that the Contract
has been awarded to him.
Notice to Proceed-The written notice by the City to the Contractor authorizing him to proceed
with the Work and establishing the date of commencement of the Work.
Paragraph - For references or citation purposes, refers to the paragraph(s) in these
Specifications, called out by paragraph number and alphanumeric designator.
Person - Includes firms,companies, corporations, partnerships, and joint ventures.
Plans - Refers to the project plans drawings, profiles, cross sections, elevations, details, and
other working drawings and supplementary drawings, or reproductions thereof, approved by
the City, and are referred to in the Contract Documents, which show the location, character,
dimensions, and details of the work to be performed. The terms drawing, plan and plans have
the same meaning as the term drawings unless otherwise stated or specified.
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Project-The undertaking to be performed under the provisions of the Contract.
Project Manual - Those Contract Documents which are bound into one or more volumes prior
to bidding.
Provide- Furnish and install,complete in place.
Punch List- List of incomplete items of work and of items of work which are not in conformance
with the Contract.
Shall - Refers to actions by either the Contractor or the City and means the Contractor or City
has entered into a covenant with the other party to do or perform the action.
Shown - Refers to information presented on the Drawings, with or without reference to the
Drawings.
Site-The property as described in the General Conditions or as shown on the Drawings.
Specific Project Requirements-Part of the Contract Documents establishing specific conditions
or requirements peculiar to the work.
Specifications - That part of the Contract Documents consisting of the General Conditions,
Supplementary General Conditions, General Project Requirements, Specific Project
Requirements, applicable portions of the Standard Specifications and State Standard
Specifications, and Technical Specifications.
Specify-Refers to information described,shown, noted or presented in any manner in any part
of the Contract.
Standard Specifications- Standard Specifications for Public Works Construction, latest edition,
including all supplements, as written by the Joint Cooperative Committee of the Southern
California Chapter of the American Public Works Association and the Southern California
District of the Associated General Contractors of California.
State Standard Specifications-The State of California, Department of Transportation Agency's
Standard Specifications in effect at the time of advertising the Work. Also referred to as State
Standard Specifications and Caltrans Standard Specifications.
Subcontractor - A subcontractor is a person or entity who has a direct contract with the
Contractor to perform any of the Work at the Site. The term subcontractor means a
subcontractor or subcontractor's authorized representative. The term subcontractor, does not
include any separate contractor or any separate contractor's subcontractors.
Submittals - The information which is specified for submission to the City Engineer in
accordance with the Project Manual.
Substantial Completion-Substantial Completion is the stage in the progress of the Work when
the Work is sufficiently complete in accordance with the Contract Documents so the City can
occupy or utilize the Work for its intended use.
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Sub-subcontractor - A sub-subcontractor is a person or entity who has a direct or indirect
contract with a subcontractor to perform any of the Work at the Site. The term
sub-subcontractor means a sub-subcontractor or an authorized representative thereof.
Supplier- Any person,firm, corporation, or organization who supplies materials or equipment
for the Work, including that fabricated to a special design, and may also be a Subcontractor or
a Sub-subcontractor.
Surety - The person, firm, corporation, or organization that joins with the Contractor in
assuming the liability for the faithful performance of the Work and for the payment of all
obligations pertaining to the Work in accordance with the Contract Documents by issuing the
Bonds required by the Contract Documents or by law.
Will-Actions entered into by the Contractor or the City as a covenant with the other party to do
or to perform the action.
Work-The labor, materials, equipment, supplies, and other items necessary for the execution,
completion, and fulfillment of the Contract.
Working Day-Any day,other than a holiday,Saturday or Sunday,on which the Contractor may
proceed with regular work on the current controlling operation as determined by the City
Engineer toward the completion of the Contract. A working day is equivalent to 1.45 calendar
days.
2.0 ADMINISTRATION
2.1 Administration of the Contract
The City Engineer will provide administration of the Contract as hereinafter discussed. The
duties, responsibilities and limitations of authority of City retained consultants and the City
Engineer during the construction, as set forth in the Contract Documents, will not be modified
or extended without written consent of the City.
In case of the termination of the employment of a consultant or the City Engineer, the City will
appoint a consultant or a City Engineer whose status under the Contract Documents shall be
that of the former consultant or City Engineer, respectively.
2.2 City Engineer
2.2.1 General - The City Engineer has the authority to act on behalf of the City on change
orders, progress payments, Contract decisions, acceptability of the Contractor's work,
and early possession.
2.2.2 Change Orders - The City Engineer has the authority to accept or reject change orders
and cost proposals submitted by the Contractor or as recommended by the City Engineer.
2.2.3 Progress Payments - The City Engineer has the authority to accept or reject requests for
progress payments which have been submitted by the Contractor.
2.2.4 Contract Decisions - Should the Contractor disagree with decisions rendered under this
Contract, the Contractor may appeal to the City Engineer in accordance with the
provisions of the Contract.
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2.2.5 Acceptability of Work - The City Engineer has the authority to make the final
determination of the acceptability of the Work.
2.2.6 Construction Schedule - The City Engineer has the authority to review and recommend
acceptance of the progress schedule submitted by the Contractor at the start of the Work
and subsequent significant revisions for conformance to the specified sequence of work
and logic.
2.2.7 Inspection-The City Engineer with the assistance of inspectors will observe the progress,
quality, and quantity of the Work to determine, in general, if the Work is proceeding in
accordance with the intent of the Contract Documents. The City Engineer shall not be
responsible for construction means, methods, techniques, sequences, or procedures, or
for safety precautions and programs in connection with the Work.
In accordance with the provisions detailed elsewhere in these General Conditions, the City
Engineer will make decisions relative to all matters of interpretation or execution of the Contract
Documents.
2.3 Consultants
2.3.1 General-Consultants will have the authority to act on behalf of the City only to the extent
provided in the Supplemental General Conditions.
3.0 CITY
3.1 General
The City, acting through the City Engineer, shall have the authority to act as the sole judge of
the Work and materials with respect to both quantity and quality as set forth in the Contract.
3.2 Attention to Work
The City shall notify the Contractor in writing of the name of individuals designated as
representatives of the City Engineer. The representative will normally be at the Site of the Work.
During the representative's absences, the Contractor may contact the City Engineer or a
previously designated representative.
3.3 Inspection
The City will employ one or more inspectors to observe the Work and to act in matters of
construction under this Contract. An inspector is not authorized to revoke, alter, or waive any
requirements of the specifications. The inspector is authorized to call the attention of the
Contractor to any failure of the Work or materials to conform to the Contract Documents. The
inspector shall have the authority to reject material or, in any emergency, suspend the Work.
The Contractor may appeal any such issue which it disagrees with to the City Engineer.
Separate and independent from the inspection above,the project may be inspected by Building
Officials for code compliance. Such inspectors shall have the authority provided to them by
local jurisdiction.
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3.4 City's Right to Carry Out the Work
If the Contractor defaults or neglects to carry out the Work in accordance with the Contract
Documents, and fails within seven (7) days after receipt of written notice from the City to
commence and continue correction of such default or neglect with diligence and promptness,
the City may, after seven (7) days following receipt by the Contractor of an additional written
notice and without prejudice to any other remedy make good such deficiencies.
The City also reserves the right to perform any portion of the work due to an emergency
threatening the safety of the work, public, City, and any property or equipment.
In either case an appropriate Change Order shall be issued unilaterally deducting from the
payments then or thereafter due the Contractor the cost of correcting such deficiencies and/or
for performing such work,including compensation for consultants and City's additional services
made necessary by such default, neglect,failure or emergency.
3.5 City's Right to Perform Work and to Award Separate Contracts
The City reserves the right to perform the work related to the Project with the City's own forces,
and to award separate Contracts in connection with other portions of the Project or other work
on the Site under these or similar Conditions of the Contract. If the Contractor claims that delay,
damage, or additional cost is involved because of such action by the City, the Contractor shall
make such claim as provided elsewhere in the Contract Documents.
When separate Contracts are awarded for different portions of the Project or other work on the
Site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor
who executes each separate Contract.
The City will provide for the coordination of the work of the City's own forces and of each
separate Contractor with the Work of the Contractor,who shall cooperate therewith as provided
in Paragraph 1400-4.8.3, Cooperation.
4.0 CONTRACTOR
4.1 Office
The Contractor's address stated in the Bid is hereby designated as the legal address of the
Contractor for the receipt of documents, samples, notices, letters, and other Articles of
communication.
4.2 Contractor's Representative
The Contractor shall notify the City in writing of the name of the person who will act as the
Contractor's representative and shall have the authority to act in matters relating to this
Contract. The Contractor,acting through its representative,shall give personal attention to,and
shall manage the Work,so that it shall be prosecuted faithfully. The Contractor's representative
shall be an employee of the Contractor. Upon written request of the Contractor, this
requirement may be waived by the City. The City's waiver, if granted will be in writing. There
is no obligation by the City to waive this provision regardless of the effect on the Contractor's
operations.
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At all times during the progress of the Work,the Contractor's representative shall be personally
present at the Project site, or a designated alternate shall be available who has the authority to
act in matters relating to the Contract. The Contractor's representative or designated alternate
shall have the authority to carry out the provisions of the Contract and to supply materials,
equipment,tools, and labor without delay for the performance of the Work. Before initial work
is begun on the Contract, the Contractor shall file with the City Engineer addresses and
telephone numbers where the Contractor's and all subcontractors' representatives can be
reached during all hours, including nights and weekends when work is not in progress.
4.3 Construction Procedures
The Contractor will supervise and direct the work. The Contractor has the authority to
determine the means, methods,techniques,sequences,and procedures of construction,except
in those instances where the City, to define the quality of an item of work, specifies in the
Contract, a means, method,technique, sequence, or procedure for construction of that item of
Work.
4.4 Contractor's Employees
The Contractor shall be responsible for the adequacy, efficiency, and sufficiency of its
employees. Workers shall have sufficient knowledge,skill,and experience to perform properly
the work assigned to them.
The Contractor shall employ only competent, skillful workers to perform the Work. If any
subcontractor or person employed by the Contractor or its subcontractors, appear to the City
Engineer to be incompetent or act in a disorderly or improper manner, such person or
subcontractor shall be discharged from the site immediately by the Contractor upon written
direction of the City Engineer, and such person shall not again be employed on the Project.
4.5 Subcontractors
Subcontractors will not be recognized as having a direct relationship with the City. The persons
engaged in the Work, including employees of subcontractors and suppliers,will be considered
employees of the Contractor. The Contractor will be responsible for their work and their work
shall be subject to the provisions of the Contract. The Contractor is as fully responsible to the
City for the acts and omissions of its subcontractors and of persons either directly or indirectly
employed by them as the Contractor is for the acts and omissions of persons directly employed
by the Contractor. Nothing contained in the Contract Documents shall create any contractual
relation between any subcontractor and the City. References in the Contract Document to
actions required of subcontractors, manufacturers, suppliers, or any party other than the
Contractor,the City,the City Engineer, its consultants shall be interpreted as requiring that the
Contractor shall require such subcontractor, manufacturer, supplier, utility company, or party
to perform the specified action, unless the Contract Documents specifically state that the Work
is not included in the Contract.
The Contractor shall not employ any subcontractors that are not properly licensed in
accordance with State law. Prior to commencement of any work by a subcontractor, the
Contractor shall submit verification to the City Engineer that the subcontractor is properly
licensed for the work it will perform. Changes to subcontractors listed in the Bid in accordance
with Public Contract Code 4100 et. seq., shall be made only with the approval of the City.
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4.6 Contractor's Equipment and Facilities
The Contractor shall furnish and maintain in good condition all equipment and facilities as
required for the proper execution and inspection of the Work. Such equipment and facilities
shall meet all requirements of applicable ordinances and laws.
4.7 Public Safety and Convenience
The Contractor shall conduct its work so as to insure the least possible obstruction to traffic and
inconvenience to the general public and the residents in the vicinity of the Work and to insure
the protection of persons and property at no extra cost to the City. The Contractor shall have
under construction no greater length or amount of work than he can prosecute properly with
due regard to the rights of the public.
4.8 City-Contractor Coordination
4.8.1 Service of Notice- Notice,order,direction, request,or other communication given by the
City or the City Engineer to the Contractor shall be deemed to be well and sufficiently given to
the Contractor if delivered to the Contractor's Representative designated in Paragraph 1400-4.2,
Contractor's Representative,to the Contractor's office designated in Paragraph 1400-4.1,Office,
or to the Contractor's address provided in the Bid Proposal.
4.8.2 Suggestions to Contractor - Plans or methods of work suggested by the City, City
Engineer or authorized representatives to the Contractor, but not specified or required, if
adopted or followed by the Contractor in whole or in part, shall be used at the risk and
responsibility of the Contractor. The City, City Engineer, or authorized representatives assume
no responsibility therefor, and in no way will be held liable for any defects in the Work which
may result from or be caused by use of such plan or method of work.
4.8.3 Cooperation - The Contractor shall afford the City, the City Engineer and separate
Contractors reasonable opportunity for the introduction and storage of their materials and
equipment and the execution of their work, and shall coordinate the Work with theirs as
required by the Contract Documents.
If any part of the Contractor's Work depends for proper execution or results upon the work of
the City or any separate Contractor, the Contractor shall, prior to proceeding with the Work,
promptly report to the City Engineer any apparent discrepancies or defects in such other work
that render it unsuitable for such proper execution and results. Failure of the Contractor to so
report shall constitute an acceptance of the City's or separate Contractor's work as fit and proper
to receive the Work, except as to defects which may subsequently become apparent in such
work by others.
If requested by the Contractor, the City shall arrange meetings with other contractors
performing work on behalf of the City to plan coordination of construction activities. The City
shall keep the Contractor informed of the planned activities of other contractors.
Any costs caused by defective or ill-timed work shall be borne by the responsible party.
Differences and conflicts arising between the Contractor and other contractors employed by the
City or between the Contractor and the workers of the City with regard to their work, shall be
submitted to the City for its decision in the matter. If such separate contractor sues the City on
account of any delay or damage alleged to have been caused by the Contractor, the City shall
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notify the Contractor who shall, at the City's election, defend such proceedings at the
Contractor's expense. If any judgement or award against the City arises from any such litigation
whether defended by City or by Contractor, the Contractor shall pay or satisfy said judgement
or award and shall reimburse the City for all attorney's fees and court costs which the City has
incurred or for which it is liable.
4.9 Permits
Unless specifically stated to be provided by the City, Contractor shall apply for, obtain, and
comply with all the terms, conditions and requirements attached to all permits, bonds and
licenses required by local, state, or federal agencies to perform work, construct, erect, test and
start up of any equipment or facility for this Contract. Where operating permits are required,
the Contractor shall apply for and obtain such operating permits in the name of the City and
provide the permit in an appropriate frame or fileholder when the City accepts substantial
completion of the equipment or facility. The Contractor shall give all notices necessary or
incidental to the due and lawful prosecution of the work.
Any permits, bonds, licenses and fees therefore required for the performance of work under
this Contract and not specifically mentioned herein as having been obtained and paid by the
City shall be included in the Contractor's bid price.
The Contractor shall apply for and obtain in its name the necessary building, plumbing and
electrical permits and shall be responsible for satisfying all code requirements, calling for
inspections, and obtaining final approvals. Code inspections will be coordinated by the City
Engineer. The Contractor shall comply with all construction conditions stipulated in the
permits. The Contractor shall include in its bid the fees for any permits required.
The Contractor shall apply for and obtain all safety permits for excavations,tunneling,trenches,
construction (building structure, scaffolding, or falsework) and demolition required by
CAUOSHA including but not limited to,the permits required by Labor Code Section 6500.
4.10 Contractor's Responsibility for the Work and Materials
Until acceptance of the Work,the Contractor shall have the charge and care of the Work and of
the materials to be used therein and shall bear the risk of injury, loss, or damage, to any part
thereof(regardless of whether partial payments have been made on such damaged portions of
the Work) by the action of the elements or from any other cause, whether arising from the
non-execution of the Work. The Contractor shall rebuild, repair, restore, and make good all
injuries,losses,or damages to any portion of the Work or the materials occasioned by any cause
before its completion and acceptance and shall bear the expense thereof, except for such
injuries, losses, or damages as are directly and approximately caused by acts of the City.
4.11 Laws to be Observed
The Contractor shall keep himself fully informed of all existing and future County, State, and
National laws and regulations and all municipal ordinances and regulations of the City which
in any manner affect those engaged or employed in the Work and of all such orders and decrees
of bodies having any jurisdiction or authority over the same; and shall protect and indemnify
the City and all of its officers, agents, and servants against any claim or liability arising from or
based on the violation of any such laws,ordinances, regulations,orders,or decrees whether by
himself or its employees. If any discrepancy or inconsistency is discovered in the plans,
drawings, specifications or Contract for the Work in relation to any such law, ordinance,
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regulations, order or decree, the Contractor shall immediately report the same to the City
Engineer in writing.
4.11.1 Certified Payrolls— Not Used
4.11.2 Overtime Requirements-The Contractor shall forfeit,as a penalty to the City,the penalty
as provided in Section 1813 of the Labor Code for each worker employed in the execution
of the Contract by the Contractor,or any subcontractor under the Contractor,for each day
during which such worker is required or permitted to work more than eight (8) hours in
any one day and forty (40) hours in any one week, in violation of the provisions of the
Labor Code, and in particular, Section 1810 to Section 1815 thereof, inclusive,except that
work performed by employees of Contractors in excess of eight (8) hours a day and forty
(40) hours during one week, shall be permitted upon compensation for all hours worked
in excess of eight (8) hours per day, at not less than one and a half (11)times the basic
rate of pay as provided for in Section 1815 of the Labor Code.
4.11.3 Apprentice and Trainee— Not Used
4.11.4 Workers' Compensation Insurance-The Contractor is required to secure the payment of
compensation to its employees in accordance with the provisions of Sections 1860 and
3700 of the Labor Code and Paragraph 1340-2.4 Workers' Compensation Insurance
4.12 Safety
The Contractor shall be solely and completely responsible for conditions of the job site,
including safety of all persons and property during performance of the work. This requirement
shall apply continuously and not be limited to normal working hours. Safety provisions shall
conform to U.S. Department of Labor (OSHA), the California Occupational Safety and Health
Act, and all other applicable Federal, State, County, and local laws, ordinances, codes, the
requirements set forth below, and any regulations that may be detailed in other parts of these
Documents. Where any of these are in conflict, the more stringent requirement shall be
followed.
The completed Work shall include all necessary permanent safety devices, such as machinery
guards and similar ordinary safety items, required by the State and Federal (OSHA) industrial
authorities and applicable local and national codes. Further,any features of the Work,including
City-selected equipment, subject to such safety regulations shall be fabricated, furnished, and
installed in compliance with these requirements. All equipment furnished shall be grounded
and provided with guards and protection as required by safety codes. Where vapor-tight or
explosion-proof electrical installation is required by safety codes, this shall be provided.
Contractors and manufacturers of equipment shall be held responsible for compliance with the
requirements included herein. The Contractor shall notify all equipment suppliers and
subcontractors of the provisions of this paragraph.
Before proceeding with any construction work,the Contractor shall take the necessary action to
comply with all provisions for safety and accident prevention. The Contractor shall develop and
maintain for the duration of this Contract,a safety program that will effectively incorporate and
implement all required safety provisions. The Contractor shall appoint an employee as safety
supervisor who is qualified and authorized to supervise and enforce compliance with the safety
program. The Contractor, as a part of his safety program, shall maintain at his office or other
well-known place at the Site, safety equipment applicable to the Work as prescribed by the
aforementioned authorities, all items necessary for giving first aid to the injured, and shall
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establish the procedure for the immediate removal to a hospital or a doctor's care of persons
who may be injured on the job site.
In accordance with the provisions of Section 6705 of the Labor Code, the Contractor shall
submit, in advance of excavation 5 feet or more in depth, detailed plans showing the design of
shoring, bracing, sloping, or other provisions to be made for worker protection from hazard of
caving ground during such excavation. If such Plans vary from the shoring system standards
set forth in the Construction Safety Orders in Title 8, California Code of Regulations, Article 6,
the Plans shall be prepared and signed by a registered civil or structural engineer. Shoring,
bracing, sloping, or other protective system shall not be less effective than required by the
California Construction Safety orders.
If death or serious injuries or serious damages are caused, the accident shall be reported
immediately by telephone or messenger to the City. In addition,the Contractor must promptly
report in writing to the City Engineer all accidents whatsoever arising out of, or in connection
with, the performance of the Work whether on, or adjacent to, the Site, giving full details and
statements of witnesses. The Contractor shall make all reports as are, or may be, required by
any authority having jurisdiction,and permit all safety inspections of the work being performed
under this Contract. If a claim is made by anyone against the Contractor or any subcontractor
on account of any accident, the Contractor shall promptly report the facts in writing to the City
Engineer, giving full details of the claim.
5.0 CONTROL OF WORK AND MATERIALS
5.1 Means and Methods
It is expressly stipulated that the drawings, specifications and other Contract Documents set
forth the requirements as to the nature of the completed Work and do not purport to control the
method of performing work except in those instances where the nature of the completed Work
is dependent on the method of performance.
Except as provided elsewhere in the Contract Documents, neither the City, its consultants, or
the City Engineer will be responsible for or have control or charge of construction means,
methods, techniques, sequences or procedures, or for safety precautions and programs in
connection with the Work. Except as provided elsewhere in the Contract Documents, neither
the City, its consultants, or the City Engineer will be responsible for or have control or charge
over the acts or omissions of the Contractor, or any of their subcontractors, agents or
employees, or any other persons performing any of the Work. Any general control of the Work
exercised by the City or its authorized representatives shall not make the Contractor an agent
of the City, and the liability of the Contractor for all damages to persons and/or to public or
private property arising from the Contractor's execution of the Work shall not be lessened
because of such general control.
Neither the inspection by the City, its consultants, or the City Engineer, nor any order,
measurement, approved modification, or payment of monies, nor acceptance of any part or
whole of the Work by the City,the City Engineer or the consultant,or their agents,shall operate
as a waiver of any provision of the Contract.
Acceptance by the City, it consultants, or the City Engineer of any drawings, methods of work,
or any information regarding materials and equipment the Contractor proposes to furnish in
the Work shall not be regarded as an assumption of risks or liability by the City, its consultants,
or the City Engineer, or any officer or employee thereof, and the Contractor shall have no claim
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under the Contract on account of the failure or partial failure or inefficiency or insufficiency of
any plan or method of work or material and equipment so accepted. Such acceptance shall be
considered to mean merely that the City, its consultants, or the City Engineer has no objection
to the Contractor using, upon its own full responsibility, the plan or method of work proposed,
or furnishing the materials and equipment proposed.
5.2 City-Furnished Materials
Materials, if furnished by the City, will be made available as designated in the Specific Project
Requirements. The cost of loading,unloading,hauling and handling,and placing City-furnished
materials shall be considered as included in the price bid for the Contract item involving such
City-furnished material.
Contractor shall inspect and assure himself of the amount and soundness of such materials.
The Contractor will be held responsible for all materials furnished to it, and shall pay all
demurrage and storage charges. City-furnished materials lost or damaged from any cause
whatsoever shall be replaced by the Contractor. The Contractor will be liable to the City for the
cost of replacing City-furnished material and such costs may be deducted from any monies due
or to become due the Contractor.
5.3 Defective and Unauthorized Work
Materials and workmanship not conforming to the requirements of the Contract Documents
shall be considered defective and will be subject to rejection. Defective work or material,
whether in place or not, shall be removed immediately from the Site by the Contractor, at its
expense, when so directed by the City Engineer.
Any work done beyond the limits of work, lines, and grades shown on any approved plans or
established by the City Engineer, or any extra work done without written authority, will be
considered as unauthorized and will not be paid for.
Upon failure on the part of the Contractor to comply with any order of the City Engineer made
under the provisions of this section, the City Engineer shall have authority to cause defective
work to be remedied, or removed and replaced, and unauthorized work to be removed, and to
deduct the costs thereof from any monies due or to become due the Contractor. The time,cost
and compliance requirements stipulated in Paragraph 1400-3.4, City's Right to Carry Out the
Work, shall apply for this paragraph also.
5.4 Unnoticed Defects
Any defective work or material that may be discovered by the City, its consultants, or the City
Engineer before the final acceptance of the Work, or before final payment has been made, or
during the warranty period, shall be removed and replaced by work and materials which shall
conform to the provisions of the Contract Documents. Failure on the part of the City, its
consultants, or the City Engineer to condemn or reject bad or inferior work or materials shall
not be construed to imply acceptance of such work or materials.
5.5 Right to Retain Imperfect Work
If any part or portion of the work performed or material furnished under this Contract shall
prove defective and not in accordance with the Drawings and Specifications, and if the
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imperfection in the same shall not be of sufficient magnitude or importance as to make the work
dangerous or unsuitable, or if the removal of such work will create conditions which are
dangerous or undesirable, the City shall have the right and authority to retain such work but
shall make such deductions in the final payment therefor as may be just and reasonable.
6.0 PROGRESS OF THE WORK
6.1 Beginning of Work
The Contractor shall begin work within ten (10)days after receiving Notice to Proceed and shall
diligently prosecute the same to completion within the time limit.
Should the Contractor begin work in advance of receiving Notice to Proceed, any work
performed in advance of the said date of approval shall be considered as having been done by
the Contractor at its own risk and as a volunteer.
6.2 Time of Completion
Time shall be of the essence of the Contract. The Contractor shall prosecute the work so that
the various portions of the project shall be complete and ready for use within the time specified
in Paragraph 3000-1.6 TIME ALLOWED FOR COMPLETION. It is expressly understood and
agreed by and between the Contractor and the City that the Contract time for completion of the
work described herein is a reasonable time taking into consideration the average climatic and
economic conditions and other factors prevailing in the locality and the nature of the work.
6.3 Delays
6.3.1 Notice of Delays - When the Contractor foresees a delay in the prosecution of the Work
and, in any event, immediately upon the occurrence of a delay,the Contractor shall notify
the City Engineer in writing of the probability of the occurrence and the estimated extent
of the delay, and its cause. The Contractor shall take immediate steps to prevent, if
possible the occurrence or continuance of the delay. The Contractor agrees that no claim
shall be made for delays which are not called to the attention of the City Engineer at the
time of their occurrence.
6.3.2 Avoidable Delays - Avoidable delays in the prosecution of the Work shall include delays
which could have been avoided by the exercise of care,prudence,foresight,and diligence
on the part of the Contractor or its subcontractors, at any tier level, or suppliers.
6.3.3 Unavoidable Delays - Unavoidable delays in the prosecution or completion of the Work
shall include delays which result from causes beyond the control of the Contractor and
which could not have been avoided by the exercise of care, prudence, foresight, and
diligence on the part of the Contractor or his subcontractors,at any tier level,or suppliers.
Delays in completion of the Work of other Contractors employed by the City will be
considered unavoidable delays insofar as they interfere with the Contractors completion
of the current critical activity item of the Work.
6.3.3.1 Abnormal Delays-Delays caused by acts of god,fire, unusual storms,floods,tidal waves,
earthquakes, strikes, labor disputes,freight embargoes, and shortages of materials shall
be considered as unavoidable delays insofar as they prevent the Contractor from
proceeding with at least seventy-five (75) percent of the normal labor and equipment
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force for at least five (5) hours per day toward completion of the current critical activity
item on the favorably reviewed progress schedule.
6.3.3.2 Material Shortages - Upon the submission of satisfactory proof to the City Engineer by
the Contractor, shortages of material will be acceptable as grounds for granting a time
extension. In order that such proof may be satisfactory and acceptable to the City
Engineer, it must be demonstrated by the Contractor that the Contractor has made every
effort to obtain such materials from all known sources within reasonable reach of the
proposed Work.
Only the physical shortage of material, caused by unusual circumstances, will be
considered under these provisions as a cause for extension of time,and no consideration
will be given to any claim that material could not be obtained at a reasonable, practical,
or economical cost or price, unless it is shown to the satisfaction of the City Engineer that
such material could have been obtained only at exorbitant prices entirely out of line with
current rates,taking into account the quantities involved and usual practices in obtaining
such quantities. A time extension for shortage of material will not be considered for
material ordered or delivered late or whose availability is affected by virtue of the
mishandling of procurement. The above provisions apply equally to equipment to be
installed in the work.
6.4 Time Extensions
6.4.1 Avoidable Delay-The City may grant an extension of time for avoidable delays if the City
deems it is in its best interest. If the City grants an extension of time for avoidable delays,
the Contractor agrees to pay the City's actual costs, including charges for engineering,
inspection and administration incurred during the extension.
6.4.2 Unavoidable Delay- If the Contractor is delayed in the performance of its work by an act
of the City or if the Contractor is delayed in the performance of its work by an unavoidable
delay,then the Contract completion date may be extended by the City for such time that,
in the City's and City Engineer's opinion, the Contractor's completion date will be
unavoidably delayed, provided that the Contractor strictly fulfills the following:
a. The Contractor shall provide notification,in accordance with Paragraph 1400-6.3.1,Notice
of Delays and submit in writing a request for an extension of time to the City Engineer
stating at a minimum the probable cause of the delay and the number of days being
requested. The time extension request shall be submitted in accordance with the
requirements of Paragraph 2000-4.3,TIME IMPACT ANALYSIS.
b. If requested by the City Engineer, the Contractor shall promptly provide sufficient
information to the City Engineer to assess the cause or effect of the alleged delay, or to
determine if other concurrent delays affected the work.
c. Weather Delays. The Contractor will be granted a non-compensable time extension for
weather caused delays.
Should the Contractor fail to fulfill any of the foregoing, which are considered conditions
precedent to the right to receive a time extension, the Contractor waives the right to
receive a time extension.
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Should the Contractor fail to complete the work within the time specified in the contract,
as extended in accordance with this clause if appropriate,the Contractor shall pay to the
City liquidated damages in accordance with Section 1500,Paragraph 1500-2.1,Liquidated
Damages.
During such extension of time, neither extra compensation for engineering, inspection
and administration nor damages for delay will be charged to the Contractor. It is
understood and agreed by the Contractor and City that time extensions due to
unavoidable delays will be granted only if such unavoidable delays involve controlling
operations which would prevent completion of the whole Work within the specified
Contract time.
6.4.3 Indirect Overhead - The Contractor shall be reimbursed for indirect overhead expenses
for periods of time when the Work is stopped due to delays as defined in Paragraph 1400-
6.3.3, Unavoidable Delay. However, no reimbursement for indirect overhead shall be
made for delays as defined in Paragraphs 1400-6.3.3.1, Abnormal Delays; 1400-6.4.2c,
Weather Delays; or 1400-6.3.3.3, Material Shortages.
II
As a condition precedent to any reimbursement,the Contractor must fulfill all conditions
as provided in Paragraph 1400-6.4.2, Unavoidable Delay.
The reimbursement of indirect overhead is limited to those delay conditions defined
above when the Contractor is prevented from proceeding with seventy-five (75) percent
of the normal labor and equipment force for at least five (5) hours per day toward
completion of the current critical activity item(s) on the current favorably reviewed
progress schedule.
6.4.3.1 Indirect Field Overhead- For those allowable delay periods as defined in Paragraph 1400-
6.4.3,Indirect Overhead,the Contractor shall be reimbursed for its indirect field overhead
based on:
a. Invoices for all field office equipment.
b. Actual salary for field office staff.
c. Fair rental values acceptable to the City Engineer as described in Paragraph 1400-
8.3, Force Account Payment for construction equipment idled due to the delay.
6.4.3.2 Home Office Overhead - For those allowable delay periods as defined in Paragraph 1400-
6.4.3, Indirect Overhead,the Contractor shall be reimbursed for its home office overhead
based on the following formula:
Contract Bid Price divided by Contract Period Days x$0.03=Daily Home Office Overhead
($/Day)
Such reimbursement shall be mutually agreed between the City and Contractor to
encompass full payment for any home office overhead expenses for such periods of time
for the Contractor and all subcontractors. The Contractor agrees to hold the City harmless
for any indirect overhead claims from its subcontractors.
6.5 Temporary Suspension of Work
6.5.1 If the Contractor fails to correct defective work as required by Paragraph 1400-5.3,
Defective and Unauthorized Work, or fails to carry out the Work in accordance with the
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Contract Documents or any other applicable rules and regulations, the City, by a written
order of the City Engineer or a representative specifically empowered to do so, may order
the Contractor to stop the work, or any portion thereof, until the cause for such order has
been eliminated; however,this right of the City to stop the Work shall not give rise to any
duty on the part of the City to exercise this right for the benefit of the Contractor or any
other person or entity. All delays in the Work occasioned by such stoppage shall not
relieve the Contractor of any duty to perform the Work or serve to extend the time for its
completion. Any and all necessary corrective work done in order to comply with the
Contract Documents shall be performed at no cost to the City.
6.5.2 In the event that a suspension of Work is ordered, as provided in this paragraph,
the Contractor, at its expense, shall perform all work necessary to provide a safe, smooth, and
unobstructed passageway through construction for use by public, pedestrian, and vehicular
traffic, during the period of such use by suspension. Should the Contractor fail to perform the
Work as specified,the City may perform such work and the cost thereof may be deducted from
monies due the Contractor under the Contract.
6.5.3 The City shall also have authority to suspend the Work wholly or in part, for such period
as the City may deem necessary, due to unsuitable weather, or to such other conditions
as are considered unfavorable for the suitable prosecution of the Work. Such temporary
suspension of the Work will be considered justification for time extensions to the Contract
in an amount equal to the period of such suspension. The Contractor as directed by the
City shall provide the provisions as stipulated in Paragraph 1400-6.6.2 above. Such
additional work shall be compensated as provided for in Paragraph 1400-7.0, CHANGES
IN SCOPE OF WORK.
6.6 Termination of Contract
If at any time the Contractor is determined to be in material breach of the Contract, notice
thereof in writing will be served upon the Contractor and its sureties,and should the Contractor
neglect or refuse to provide means for a satisfactory compliance with the Contract, as directed
by the City Engineer, within the time specified in such notice, the City shall have the authority
to terminate the operation of the Contract.
Upon such termination,the Contractor shall discontinue the Work,or such parts of it as the City
may designate. Upon such termination,the Contractor's control shall terminate and thereupon
the City or its fully authorized representative may take possession of all or any part of the
Contractor's materials, tools, equipment, and appliances upon the premises and use the same
for the purposes of completing the Work and hire such force and buy or rent such additional
machinery, tools, appliances, and equipment, and buy such additional materials and supplies
at the Contractor's expense as may be necessary for the proper conduct of the Work and for the
completion thereof; or the City may employ other parties to carry the Contract to completion,
employ the necessary workers, substitute other machinery or materials and purchase the
materials contracted for, in such manner as the City may deem proper; or the City may annul
and cancel the Contract and relet the Work or any part thereof. Any excess of cost arising there
from over and above the Contract price will be charged against the Contractor and its sureties,
who will be liable therefore.
In the event of such termination, all monies due the Contractor or retained under the terms of
this Contract shall be held by the City in an escrow account; however, such holdings will not
release the Contractor or its sureties from liability for failure to fulfill the Contract. Any excess
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cost over and above the Contract Amount incurred by the City arising from the termination of
the operations of the Contract and the completion of the Work by the City as above provided
shall be paid for by any available funds in the escrow account. The Contractor will be so
credited with any surplus remaining after all just claims for such completion have been paid.
7.0 CHANGES IN THE SCOPE OF WORK
7.1 Change Orders
7.1.1 Without invalidating the Contract and without notice to sureties or insurers,the City,
through the City Engineer, may at any time or from time to time, order additions, deletions, or
revisions in the Work;these will be authorized by Field Directive, Field Order, or Change Order.
A Change Order will not be issued for a Field Directive unless the City Engineer concurs with an
appeal by the Contractor that such Field Directive is a change in the scope of the Contract. The
Contractor shall comply promptly with the requirements for all Change Orders, Field Orders, or
Field Directives. The work involved in Change Orders shall be executed under the applicable
conditions and requirements of the Contract Documents. If any Field Order causes an increase
or decrease in the Contract Amount or an extension or shortening of the Contract Time, an
equitable adjustment will be made by issuing a Change Order. If the Contractor accepts a
Change Order that does not include a time extension, the Contractor waives any claim for
additional time for the work covered by that Change Order. Additional or extra work performed
by the Contractor without written authorization of a Field Order or Change Order will not entitle
the Contractor to an increase in the Contract Amount or an extension of the Contract Time.
7.1.2 Extra work shall be that work not shown or detailed on the Contract Drawings and
not specified. Such work shall be governed by all applicable provisions of the Contract
Documents. In giving instructions,the City Engineer shall have authority to make minor changes
in the work, not involving extra cost, and not inconsistent with the purposes of the work; but
otherwise, except in an emergency endangering life or property, no extra work or change shall
be made unless in pursuance of a written order by the City through the City Engineer, and no
claim for an addition to the total amount of the Contract shall be valid unless so ordered.
7.1.3 In case any change increases or decreases the work shown, the Contractor shall be paid
for the work actually done at a mutually agreed upon adjustment to the Contract price, based
upon the provisions of Paragraph 1400-8.0 PROJECT MODIFICATION PROCEDURES
7.1.4 If the Contractor refuses to accept a Change Order,the City may issue it unilaterally. The
Contractor shall comply with the requirements of the Change Order. The City shall provide for
an equitable adjustment to the Contract, and compensate the Contractor accordingly. If the
Contractor does not agree that the adjustment is equitable, it may submit a claim in accordance
with Paragraph 1400-7.3.2,Claims.7.2Differing Site Conditions
Pursuant to Public Contract Code Section 7104,the Contractor shall promptly, and before such
conditions are disturbed, notify the City Engineer in writing, of any:
a. Material that the Contractor believes may be material that is 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 provisions of existing law.
b. Subsurface or latent physical conditions at the site differing from those indicated.
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c. Unknown physical conditions at the site of any unusual nature, differing materially from
those ordinarily encountered and generally recognized as inherent in work of the
character provided for in the Contract.
The City shall promptly, investigate the conditions, and if it finds that the conditions do
materially differ, or do involve hazardous waste, and cause a decrease or increase in the
Contractor's cost of, or the time required for, performance of any part of the work the City shall
cause to be issued a change order under the procedures provided in Paragraph 1400-7.1,
Change Orders.
In the event that a dispute arises between the City and the Contractor whether the conditions
materially differ,or involve hazardous waste,or cause a decrease or increase in the Contractor's
cost of, or time required for, performance of any part of the work, the Contractor shall not be
excused from any scheduled completion date provided for by the Contract, but shall proceed
with all work to be performed under the Contract. The Contractor shall retain any and all rights
provided either by Contract or by law which pertain to the resolution of disputes and protests
between the contracting parties, Paragraph 1400-7.3, Resolution of Disputes.
No claim of the Contractor under this clause shall be allowed unless the Contractor has given
the notice required.
7.2 Differing Site Conditions
Pursuant to Public Contract Code Section 7104,the Contractor shall promptly, and before such
conditions are disturbed, notify the City Engineer in writing, of any:
a. Material that the Contractor believes may be material that is 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 provisions of existing law.
b. Subsurface or latent physical conditions at the site differing from those indicated.
c. Unknown physical conditions at the site of any unusual nature, differing materially from
those ordinarily encountered and generally recognized as inherent in work of the
character provided for in the Contract.
The City shall promptly, investigate the conditions, and if it finds that the conditions do
materially differ, or do involve hazardous waste, and cause a decrease or increase i the
Contractor's cost of, or the time required for, performance of any part of the work,the City shall
cause to be issued a change order under the procedures provided in Paragraph 7.1, Change
Order. In the event that a dispute arises between the City and the Contractor whether the
conditions materially differ, or involve hazardous waste, or cause a decrease or increase in the
Contractor's cost of, or time required for, performance of any part of the work, the Contractor
shall not be ex used from any scheduled completion date provided by the Contract, but shall
proceed with all work to be performed under the Contract. The Contractor shall retain any and
all rights provided either by Contract or by law which pertain to the resolution of disputes and
protests between the contracting parties, Paragraph 7.3 Resolution of Disputes.
No claim of the Contractor under this clause shall be allowed unless the Contractor has given
the notice required.
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7.3 Resolution of Disputes
7.3.1 Contract Interpretation by the City Engineer - Questions regarding the meaning and
intent of the Contract Documents shall be referred in writing by the Contractor to the City
Engineer. The City Engineer shall respond to the Contractor in writing with a decision.
7.3.2 Claims - Submission of a claim, properly certified, with all required supporting
documentation, and written rejection or denial of all or part of the claim by the City, is a
condition precedent to any action, proceeding, litigation, suit or demand for arbitration
by the Contractor.
7.3.2.1 Notice - If the Contractor disagrees with the City Engineer's decision in Paragraph
1400-7.3.1, Contract Interpretation by the City Engineer, or in any case where the
Contractor deems additional compensation or a time extension to the Contract period is
due him for work or materials not covered in the Contract or which the City Engineer has
not recognized as extra work, the Contractor shall notify the City Engineer, in writing, of
his intention to make claim. Claims pertaining to decisions provided in Paragraph 1400-
7.3.1 shall be filed in writing to the City Engineer within five (5) days of receipt of such
decision. All other claims notices for extra work shall be filed in writing to the City
Engineer prior to the commencement of such work. Written notice shall use the words
"Notice of Potential Claim". Such Notice of Potential Claim shall state the circumstances
and the reasons for the claim, but need not state the amount. Additionally, no claim for
additional compensation or extension of time for a delay will be considered unless the
provisions of Paragraphs 1400-6.3, Delays. and 6.4, Time Extensions, are complied with.
No claim filed after the date of final payment will be considered.
It is agreed that unless notice is properly given, the Contractor shall not recover costs
incurred by him as a result of the alleged extra work, changed work or other situation
which had proper notice been given would have given rise to a right for additional
compensation. The Contractor should understand that timely notice of potential claim is
of great importance to the City, and is not merely a formality. Such notice allows the City
to consider preventative action, to monitor the Contractor's increased costs resulting
from the situation,to marshal)facts,and to plan its affairs. Such notice by the Contractor,
and the fact that the City Engineer has kept account of the cost as aforesaid, shall not in
any way be construed as proving the validity of the claim.
7.3.2.2 Submission of claim costs -Within 30 days after the last cost of work for which the
Contractor contends additional compensation is due, but if costs are incurred over a span
of more than 30 days, then within 15 days after the thirtieth day and every month
thereafter, the Contractor shall submit to the City Engineer the costs incurred for the
claimed matter. Claims shall be made in itemized detail satisfactory to the City Engineer
in content,detail and format of presentation. If the additional costs are in any respect not
knowable with certainty, they shall be estimated. If the claim is found to be just, it shall
be allowed and paid for as provided in Section 1400-8.0, PROJECT MODIFICATION
PROCEDURES.
7.3.2.3 Affidavit required - All claims submitted to the City shall be accompanied with a
type written affidavit containing the following language; it must be signed, dated, and
notarized on the Contractor's letterhead:
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I, (must be an officer) , being the (title) of (contractor's name) , declare under
penalty of perjury under the laws of the state of California, and do personally certify
and attest that: I have thoroughly reviewed the attached claim for additional
compensation and/or extension of time, and know its contents, and said claim is
made in good faith; the supporting data is truthful and accurate; the amount
requested accurately reflects the contract adjustment for which the contractor
believes the City of Cathedral City is liable; and further,that I am familiar with
California Penal Code Section 72 and California Government Code Section 12560, Et
Seq, pertaining to false claims, and further know and understand that submission or
certification of a false claim may lead to fines, imprisonment and/or other severe
legal consequences.
7.3.2.4 Claim meetings- From time to time the City Engineer may call special meetings to
discuss outstanding claims. The Contractor shall cooperate and attend, prepared to
discuss outstanding claims, making available the personnel necessary for claim
resolution, and providing documents reasonably requested by the City Engineer.
7.3.3 Resolution of Claims - For all contracts awarded during the effective dates of Public
Contract Code Section 20104, where claims cannot be resolved between the parties,
claims for three hundred and seventy five thousand dollars ($375,000) or less shall be
resolved pursuant to the provisions of that code section, which is summarized in
Paragraphs 1400-7.3.3.1 to 1400-7.3.3.5. For claims greater than three hundred and
seventy five thousand dollars ($375,000) Paragraphs 1400-7.3.3.2 to 1400-7.3.3.4 are
applicable; however, Paragraph 1400-7.3.3.5, Civil Actions for claims less than $375,000,
is not applicable.
7.3.3.1 Claims Less Than$50,000
a. For claims of less than fifty thousand dollars ($50,000),the City Engineer shall respond in
writing to written claims within 45 days of receipt of the claim in Paragraph 1400-7.3.2,
Claims, or may request, in writing, within 30 days of receipt of the claim, any additional
documentation supporting the claim or relating to defenses or claims the City may have
against the Contractor.
b. If additional information is thereafter required, it shall be requested and provided
pursuant to this section, upon mutual agreement of the City and the Contractor.
c. The City Engineer's written response to the claim, as further documented, shall be
submitted to the Contractor within 15 days after receipt of the further documentation or
within a period of time no greater than that taken by the Contractor in producing the
additional information,whichever is greater.
7.3.3.2 Claims Greater Than $50,000
a. For claims of over fifty thousand dollars ($50,000), the City Engineer shall respond in
writing to all written claims within 60 days of receipt of the claim in Paragraph 1400-7.3.2,
Claims, or may request, in writing, within 30 days of receipt of the claim, any additional
documentation supporting the claim or relating to defenses or claims the City may have
against the Contractor.
b. If additional information is thereafter required, it shall be requested and provided
pursuant to this paragraph, upon mutual agreement of the City and the Contractor.
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c. The City Engineer's written response to the claim, as further documented, shall be
submitted to the Contractor within 30 days after receipt of the further documentation, or
within a period of time no greater than that taken by the Contractor in producing the
additional information or requested documentation, whichever is greater.
7.3.3.3 Claim Conference - If the Contractor disputes the City Engineer's written response, or if
the City Engineer fails to respond within the time prescribed,the Contractor may so notify
the City, in writing, either within 15 days of receipt of the City Engineer's response or
within 15 days of the City Engineer's failure to respond within the time prescribed,
respectively, and demand an informal conference to meet and confer for settlement of
the issues in dispute. Upon a demand, the City shall schedule a meet and conference
within 30 days for settlement of the dispute.
7.3.3.4 Claim Filing - If the claim or any portion remains in dispute after the claim conference
noted in Paragraph 1400-7.3.3.4, Claim Conference, the Contractor may file a claim
pursuant to Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with
Section 910) of Part 3 of Division 3.6 of Title 1 of the Government Code. For purposes of
those provisions, the running of the period of time within which a claim must be filed
shall be tolled from the time the Contractor submits his or her written claim pursuant to
Paragraph 1400-7.3.2, Claims, until the time the claim is denied, including any period of
time utilized in the meet and confer process.
7.3.3.5 Civil Actions For Claims Less Than $375,000 - The following procedures are established
for all civil actions filed to resolve claims for less than three hundred seventy five
thousand dollars ($375,000):
a. Within 60 days, but no earlier than 30 days, following the filing or responsive pleading,
the court shall submit the matter to non-binding mediation unless waived by mutual
stipulation of both parties. The mediation process shall provide for the selection within
15 days by both parties of a disinterested third person as mediator, shall be commenced
within 30 days of the submittal, and shall be concluded within 15 days from the
commencement of the mediation unless a time requirement is extended upon a good
cause showing to the court.
b. If the matter remains in dispute, the case shall be submitted to judicial arbitration
pursuant to Chapter 2.5(commencing with Section 1141.10)of Title 3 of Part 3 of the Code
of Civil Procedure, notwithstanding Section 1141.11 of that Code. The Civil Discovery Act
of 1986 (Article 3 (commencing with Section 2016) of Chapter 3 of Title 3 of Part 4 of the
Code of Civil Procedure) shall apply to any proceeding brought under this subdivision
consistent with the rules pertaining to judicial arbitration.
c. In addition to Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3 of the
Code of Civil Procedure, (A) arbitrators shall, when possible, be experienced in
construction law, and (B) any party appealing an arbitration award who does not obtain
a more favorable judgement shall, in addition to payment of costs and fees under the
chapter, also pay the attorney's fees on appeal of the other party.
7.3.3.6 Unresolved Issues - Unless this Contract provides otherwise, all claims, counterclaims,
disputes, and other matters in question between the City and the Contractor that are not
resolved between the City and the Contractor and are not governed by Public Contract
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Code 20104 shall be decided by a court of competent jurisdiction. Arbitration shall not
be used for resolution of these disputes.
Should either party to this Contract bring legal action against the other,the case shall be
handled in the California county where the work is being performed.
7.3.4 Records of Disputed Work - In proceeding with a disputed portion of the Work, the
Contractor shall keep accurate records of its costs and shall make available, to the City
Engineer,a daily summary of the hours and classification of equipment and labor utilized
on the disputed work, as well as a summary of any materials or any specialized services
which are used. Such information shall be submitted to the City Engineer on a monthly
basis, receipt of which shall not be construed as an authorization for or acceptance of the
disputed work.
8.0 PROJECT MODIFICATION PROCEDURES
8.1 Changes in Contract Price
Whenever corrections,alterations,or modifications of the work under this Contract are ordered
by the City Engineer and approved by the City and increase the amount of work to be done,
such added work shall be known as extra work; and when such corrections, alterations, or
modifications decrease the amount of work to be done, such subtracted work shall be known
as work omitted.
The difference in cost of the work affected by such change will be added to or deducted from
the amount of said Contract price,as the case may be, by a fair and reasonable valuation,which
shall be determined in one or more of the following ways as directed by the City Engineer:
a. By unit prices subsequently fixed by agreement between the parties;
b. By an acceptable lump sum proposal from the Contractor;or
c. By Force Account (as described in Paragraph 1400-8.3, Force Account Payment), when
directed in writing and administered by the City through its agents.
When required by the City Engineer, the Contractor shall submit, in the form prescribed by the
City Engineer, an itemized breakdown with supporting data of the quantities and prices used in
computing the value of any change that may be ordered.
The City Engineer will review the Contractor's proposal for the change and negotiate an
equitable adjustment with the Contractor. After there is an agreement the City Engineer will
prepare and process the Change Order and make a recommendation for action by the City. All
Change Orders must be approved by the City in writing before the work can be authorized and
the Change Order executed.
The prices agreed upon and any agreed upon adjustment in Contract Time shall be incorporated
in the written order issued by the City, which shall be written so as to indicate an acceptance
on the part of the Contractor as evidenced by its signature. By signature of the Change Order,
the Contractor acknowledges that the adjustments to cost and time contained in the Change
Order are in full satisfaction and accord,payment in full,and so waives any right to claim further
cost and time impacts at any time during and after completion of the Contract for the changes
encompassed by the Change Order.
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8.2 Negotiated Change Orders
Under the methods described in Paragraph 1400-8.1b and 8.1c above, the Contractor shall
submit substantiating documentation with an itemized breakdown of Contractor and
subcontractor direct costs, including labor, material,equipment rentals,and approved services,
pertaining to such ordered work in the form and detail acceptable to the City Engineer. The
direct costs shall include only the payroll cost for workers and foremen, including wages,fringe
benefits as established by negotiated labor agreements or state prevailing wages, workers'
compensation and labor insurance,and labor taxes as established by law. No other fixed labor
burdens will be considered, unless approved in writing by the City Engineer; the cost of
materials used and equipment delivered and installed in such work as substantiated by
appropriate documents;the cost of construction machinery and equipment based on fair rental
or ownership values acceptable to the City Engineer as described in Paragraph 1400-8.3, Force
Account Payment; and the cost of incidentals directly related to such work. The direct costs
shall not include any labor or office costs pertaining to the Contractor's managers or
superintendents, his office and engineering staff and office facilities, or anyone not directly
employed on such work, nor the cost of rental of small tools as all such indirect costs form a
part of the Contractor's overhead expense.
Under the method described in Paragraph 1400-8.1b and 8.1c the maximum percentage which
will be allowed for the Contractor's combined overhead and profit will be:
a. For work by its own organization,the Contractor may add the following percentages:
• Direct Labor 25 percent
• Materials 15 percent
• Equipment (owned or rented) 15 percent
b. For all such work done by subcontractors, such subcontractor may add the same
percentages as the Contractor as listed in (1) above to its actual net increase in costs for
combined overhead and profit and the Contractor may add up to ten (10) percent of the
subcontractor's total for its combined overhead and profit.
c. For all such work done by subtier-subcontractors, such sub-subcontractors may add the
same percentages as the Contractor as listed in(1)above to its actual net increase in costs
for combined overhead and profit and the subcontractor may add up to ten (10) percent
of the sub-subcontractor's total for his combined overhead and profit. The Contractor
may add up to five (5) percent of the subcontractor's total for its combined overhead and
profit.
d. To the total of the actual costs and fees allowed hereinunder, not more than two (2)
percent shall be added for additional bond and insurance other than labor insurance.
The above fees represent the maximum limits which will be allowed, and they include the
Contractor's and all subcontractors' indirect home office expenses and all costs for cost
proposal preparation.
When both additions and credits are involved in any one change, the combined overhead and
profit shall be figured on the basis of the net increase, if any, for each area of work, i.e. direct
labor, materials, equipment, and subcontractors. The amount of credit to be allowed by the
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Contractor to the City for any such change which results in a net decrease in cost will be the
amount of the actual net decrease and a credit in accordance with the markups allowed under
the use of the method described in Paragraph 1400-8.3, Force Account Payment. The
Contractor shall not claim for anticipated profits on work that may be omitted.
8.3 Force Account Payment
If either the amount of work or payment for a Change Order cannot be determined or agreed
upon beforehand, the City may direct by written Change Order or Field Order that the work be
done on a force account basis. The term "force account" shall be understood to mean that
payment for the work will be done on a time and expense basis,that is,on an accounting of the
Contractor's forces, materials, equipment, and other items of cost as required and used to do
the work. For the work performed,payment will be made for the documented actual cost of the
following:
a. Direct labor cost for workers, including foremen, who are directly assigned to the force
account work: Direct labor cost is the actual payroll cost, including wages,fringe benefits
as established by negotiated labor agreements or state prevailing wages, workers'
compensation and labor insurance,and labor taxes as established by law. No other fixed
labor burdens will be considered, unless approved in writing by the City.
b. Material delivered and used on the designated work, including sales tax, if paid for by the
Contractor or its subcontractor.
c. Equipment rental, including necessary transportation for items having a value in excess
of One Thousand Dollars ($1,000.00).
d. Additional bond.
e. Additional insurance, other than labor insurance.
To the preceding costs, there shall be added the following fees for the Contractor,
subcontractor, or sub-subcontractor actually performing the work:
• A fixed fee not to exceed fifteen (15) percent of the costs of Items a, b, and c above.
• To the total of the actual costs and fees allowed hereunder, not more than two(2) percent
shall be added for additional bond and insurance as the cost of Items d and e above.
For work performed by an approved subcontractor, the Contractor may add to the total of the
actual costs and fixed fees allowed under the preceding paragraph an additional fixed fee of
five (5) percent of said total. No further compensation will be allowed for the Contractor's
administration of the work performed by the subcontractor.
For work performed by a subtier-subcontractor, the subcontractor may add to the total of the
actual costs and fixed fees allowed under the preceding paragraph an additional fixed fee of
five (5) percent of said total. No further compensation will be allowed for the subcontractor's
administration of the work performed by the subtier-subcontractor. The Contractor may add to
the total of the actual costs and fixed fees allowed under this paragraph an additional fixed fee
of five (5) percent of said total. No further compensation will be allowed for the Contractor's
administration of the work performed by the subcontractor.
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The added fixed fees shall be considered to be full compensation, covering the cost of general
supervision, overhead, profit, and any other general expense. The above fixed fees represent
the maximum limits which will be allowed, and they include the Contractor's and all
subcontractors' indirect home office expenses and all costs for cost proposal preparation and
record keeping.
The City reserves the right to furnish such materials and equipment as it deems expedient,and
the Contractor shall have no claim for profit or added fees on the cost of such materials and
equipment.
For equipment under Item c above,rental or equivalent rental cost will be allowed for only those
days or hours during which the equipment is in actual use. Payment shall be based on actual
rental and transportation invoices but shall not exceed the monthly rate in the Rental Rate Blue
Book. Owner-operated equipment rates shall not exceed the monthly rate in the Rental Rate
Blue Book plus the labor costs as provided in Item a. above. The rental cost allowed for
equipment will, in all cases, be understood to cover all fuel, supplies, repairs, ownership, and
incidental costs and no further allowances will be made for those items, unless specific
agreement to that effect is made. For Contractor owned equipment,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, a suitable rental rate for such
equipment will be established by the City Engineer.
Prior to the commencement of force account work,the Contractor shall notify the City Engineer
of its intent to begin work. Labor, equipment and materials furnished on force account work
shall be recorded daily by the Contractor upon report sheets furnished by the City Engineer to
the Contractor. The reports, if found to be correct, shall be signed by both the Contractor and
City Engineer, or inspector, and a copy of which shall be furnished to the City Engineer no later
than the working day following the performance of said work. The daily report sheet shall
thereafter be considered the true record of force account work provided.
The Contractor shall maintain its records in such a manner as to provide a clear distinction
between the direct costs of work paid for on a force account basis and the costs of other
operations.
To receive partial payments and final payment for force account work, the Contractor shall
submit, in a manner approved by the City Engineer, detailed and complete documented
verification of the Contractor's and any of its subcontractor's actual costs involved in the force
account pursuant to the pertinent Change Order or Field Order. Such costs shall be submitted
within thirty(30) days after said work has been performed. No payments will be made for work
billed and submitted to the City Engineer after the thirty (30) day period has expired.
The force account invoice shall itemize the materials used and shall cover the direct costs of
labor and the charges for equipment rental,whether furnished by the Contractor,subcontractor,
or other forces. The invoice shall be in a form acceptable to the City Engineer and shall provide
names or identifications and classifications of workers,the hourly rate of pay and hours worked,
and also the size, type, and identification number of equipment and hours operated. Material
charges shall be substantiated by valid copies of vendor's invoices.
When both additions and credits are involved in any one change, the combined overhead and
profit shall be figured on the basis of the net increase,if any. The amount of credit to be allowed
by the Contractor to the City for any such change which results in a net decrease in cost will be
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the amount of the actual net decrease and a credit in accordance with the markups allowed
under the use of the method described in this Paragraph. The Contractor shall not claim for
anticipated profits on work that may be omitted.
8.4 Time Extensions for Change Orders
If the Contractor requests a time extension for the extra work necessitated by a proposed
Change Order, the request must comply with the applicable requirements within Section 2000,
Special Provisions, Paragraph 4.3 Time Impact Analysis.
9.0 PAYMENT
9.1 Scope of Payment
9.1.1 General - The Contractor shall accept the compensation, as herein provided, as full
payment for furnishing all labor, materials, tools, equipment, and incidentals necessary
for completing the Work according to the Contract Documents, and no additional
compensation will be allowed therefor. Neither the payment of any partial payment
estimate nor of any retained percentage shall relieve the Contractor of any obligation to
make good any defective work or material.
9.1.2 Payment for Patents and Patent Infringement - All fees or claims for any patented
invention, article, or arrangement that may be used upon, or in, any manner connected
with the performance of the work or any part thereof shall be included in the price bid for
doing the work, and the Contractor and its sureties shall defend, protect, and hold the
City, its consultants, the City Engineer, together with all their officers, agents, and
employees harmless against liability of any nature or kind for any and all costs, legal
expenses, and damages made for such fees or claims and against any and all suits and
I imbrought or made bythe holder of anyinvention orpatent, or on account of any
claims
patented or unpatented invention,process,article,or appliance manufactured for or used
in the performance of the Contract, including its use by the City, unless otherwise
specifically stipulated in the Contract. Before final payment is made on the Contract,the
Contractor shall furnish an affidavit to the City regarding patent rights for the project.
The affidavit shall state that all fees and payments due as a result of the work incorporated
into the project or methods utilized during construction have been paid in full. The
Contractor shall certify in the affidavit that no other fees or claims exist for work in this
project.
9.1.3 Payment of Taxes - The Contractor shall pay and shall assume exclusive liability for all
taxes levied or assessed on or in connection with the Contractor's performance of this
Contract, including, but not limited to, State and local sales and use taxes, Federal and
State payroll taxes or assessments, and excise taxes, and no separate allowance will be
made therefor,and all costs in connection therewith shall be included in the total amount
of the Contract price.
9.1.4 Payment for Labor and Materials-The Contractor shall pay and require its subcontractors
to pay any and all accounts for labor including worker's compensation premiums, state
unemployment and federal social security payments and other wage and salary
deductions required by law. The Contractor also shall pay and cause its subcontractors
to pay any and all accounts for services,equipment,and materials used by the Contractor
and its subcontractors during the performance of work under this Contract. Such
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accounts shall be paid as they become due and payable. If requested by the City, the
Contractor shall furnish proof of payment of such accounts to the City.
9.2 Partial Payments
In consideration of the faithful performance of the work prosecuted in accordance with the
provisions of these Specifications and the Contract,the City will pay the Contractor for all such
work installed on the basis of percentage completion.
Payments will be made by the City to the Contractor on estimates duly certified and approved
by the City Engineer, based on the value of equipment installed and tested, labor and materials
incorporated into said permanent work by the Contractor during the preceding month.
Payments will not be made for temporary construction unless specifically provided for in the
Contract Documents.
Partial payments will be made monthly based on work accomplished as of a day mutually
agreed to by the City and the Contractor.
The Contractor shall submit his estimate of the work completed during the prior month and the
work completed to date in a format corresponding to the accepted cost breakdown. The City
Engineer shall review the submitted estimate, and upon approval,the Contractor may submit a
detailed invoice for those amounts approved by the City Engineer.
If requested, the Contractor shall provide such additional data as may be reasonably required
to support the partial payment request. If the City Engineer does not agree with the Contractor's
estimate of amount earned,the partial payment request will be returned for revision. The City
Engineer will be available to meet to discuss the partial payment request prior to its re-
submittal. When the Contractor's estimate of amount earned conforms with the City Engineer's
evaluation,the City Engineer will calculate the amount due the Contractor, prepare the progress
payment request for signature by the Contractor, and submit the recommended progress
payment request for the City's approval and processing. Payment will be made by the City to
the Contractor in accordance with City's normal accounts payable procedures; the City shall
retain amounts in accordance with Paragraph 1400-9.4, Right to Withhold Amounts.
No such estimate or payment shall be required to be made, when in the judgement of the City
Engineer,the Work is not proceeding in accordance with the provisions of the Contract,or when
in the City Engineer's judgement the total value of the Work done since the last estimate
amounts to less than One Thousand Dollars ($1,000.00).
9.3 Partial Payments- Inclusion of Materials on Hand
No payment will be made for materials delivered to the site that are not yet incorporated into
the work.
9.4 Right to Withhold Amounts
9.4.1 Retention - The City will deduct from each partial payment and retain as part security,
five (5) percent of the amount earned until the final payment.
Pursuant to Public Contract Code Section 22300,for monies earned by the Contractor and
withheld by the City to ensure the performance of the Contract, the Contractor, may, at
his or her option,choose to substitute securities meeting the requirements of said Section
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22300. In the event the Contractor desires to choose this option,the Contractor shall enter
into an escrow agreement with the City, and the escrow agent, a qualified bank to be
chosen by City, in the form of the agreement included in the project specifications. The
costs of such escrow shall be paid by the Contractor. The securities to be deposited in
said escrow account shall be equivalent,in fair market value,to the amount to be withheld
as performance retention. The securities shall be held in accordance with the provisions
of Public Contract Code Section 22300, and the implementing agreement.
Contractor shall have the obligation of ensuring that such securities deposited are
sufficient so as to maintain,in total fair market value,an amount equal to the cash amount
of the sums to be withheld under the Contract. If, upon written notice from the City, or
from the appropriate escrow agent, indicating that the fair market value of the securities
has dropped below the dollar amount of monies to be withheld by the City to ensure
performance, Contractor shall,within five days of the date of such notice, post additional
securities as necessary to ensure that the total fair market value of all such securities held
by the City, or in escrow, is equivalent to the amount of money to be withheld by the City
under the Contract.
II
Any Contractor that desires to exercise this option shall give notice in writing to City, and
shall thereafter execute the escrow agreement form provided in Appendix A of these
Specifications.
9.4.2 Other Withholds - In addition to the amount which the City may otherwise retain under
the Contract, the City may withhold a sufficient amount or amounts of any payment or
payments otherwise due the Contractor, as in its judgement may be necessary to cover:
a. Payments which may be past due and payable for just claims against the Contractor or
any subcontractor for labor or materials furnished for the performance of this Contract.
b. For defective work not remedied.
c. For failure of the Contractor to make proper payments to its subcontractors or suppliers.
d. A reasonable doubt that the Contract can be completed for the balance then unpaid.
e. Damage to another Contractor or third party, or to property.
f. Failure of the Contractor to keep its work progressing in accordance with its progress
schedule or maintaining current "As-Built" record drawings.
g. The City's costs for the Contractor's failure to complete within the allowed time.
h. Cost of insurance arranged by the City due to cancellation or reduction of the Contractor's
insurance.
i. Failure of the Contractor to make proper submissions, as herein specified.
j. Failure to submit, revise, resubmit, or otherwise conform to the requirements herein for
preparing and maintaining a construction schedule.
k. Payments due the City from the Contractor.
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I. Reduction of Contract Amount because of modifications.
m. The Contractor's neglect or unsatisfactory prosecution of the work including failure to
clean up.
n. Provisions of law that enable or require the City to withhold such payments in whole or
in part.
When the above reasons for withhold amounts are removed, payment may be made to the
Contractor for amounts withheld.
The City in its discretion may apply any withheld amount or amounts to the payment of valid
claims. In so doing,the City shall be deemed the agent of the Contractor, and any payment so
made by the City shall be considered as a payment made under the Contract by the City to the
Contractor, and the City shall not be liable to the Contractor for such payment made in good
faith. Such payments may be made without prior judicial determination of the claim or claims.
The City will render to the Contractor a proper accounting of such funds disbursed in behalf of
the Contractor.
9.5 Substantial Completion
When the Contractor considers that the Work is substantially complete, the Contractor shall
notify the City Engineer in writing. Upon receipt of the notification,the City and/or its authorized
representatives will make inspection, to determine if the Work is sufficiently complete in
accordance with the Contract Documents so the City can occupy or utilize the Work for its
intended use. If items are found which prevent such use or occupancy, the City Engineer shall
notify the Contractor in writing of such items.
completion Upon the of such corrective work, the Contractor shall so notify the City Engineer
P
in writing. The City Engineer shall inspect the Work to determine its acceptability for Substantial
Completion and for determination of other items which do not meet the terms of the Contract.
Upon verification that the project is substantially complete the City Engineer shall prepare a
Certificate of Substantial Completion. The Certificate shall establish the date of Substantial
Completion and the responsibilities of the City and Contractor for security, maintenance, heat,
utilities,damage to the Work and insurance,and shall fix the time, not to exceed 60 days,within
which the Contractor shall finish all items on the punch list accompanying the Certificate. When
the preceding provisions have been approved by both the City and the Contractor, they shall
sign the Certificate to acknowledge their written acceptance of the responsibilities assigned to
them in such Certificate. By such acknowledgment, the Contractor agrees to pay the City's
actual costs including,but not limited to,charges for engineering,inspection and administration
incurred due to the failure to complete the punch list within the time period provided in the
Certificate of Substantial Completion.
9.6 Final Inspection and Payment
Upon completion of the Work, and upon completion of final cleaning, the Contractor shall so
notify the City Engineer in writing. Upon receipt of the notification,the City and/or its authorized
representatives, will make the final inspection, to determine the actual status of the Work in
accordance with the terms of the Contract. If materials, equipment, or workmanship are found
which do not meet the terms of the Contract,the City Engineer shall prepare a punch list of such
items and submit it to the Contractor. Following completion of the corrective work by the
Contractor, the City Engineer shall notify the City that the Work has been completed in
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accordance with the Contract. Final determination of the acceptability of the Work shall be
made by the City. After completion of the work, but prior to its acceptance by the City,the last
partial payment will be made to the Contractor in accordance with Paragraph 1400-9.2, Partial
Payments.
After receipt of the last partial payment, but prior to acceptance of the Work by the City, the
Contractor shall send a letter to the City Engineer. The letter, pursuant to California Public
Contract Code Section 7100, shall state that acceptance of the final payment described below
shall operate as and shall be, a release to the City, its consultants,the City Engineer, and their
duly authorized agents,from all claim of and/or liability to the Contract arising by virtue of the
Contract related to those amounts. Disputed Contract claims in stated amounts previously filed
as provided in Paragraph 1400-7.3.2, Claims, may be specifically excluded by the Contractor
from the operation of the release. Following receipt of all required Submittals and the City
Engineer's written statement that construction is complete and recommendation that the City
accept the project,the City will take formal action on acceptance.
Within ten (10) days of the acceptance by the City of the completed work embraced in the
Contract, the City will cause to be recorded in the office of the County Recorder a Notice of
Completion.
After thirty-five (35) days after recording Notice of Completion of the work involved in the
Contract,the City will pay the Contractor in lawful money such sums of money as may be due
the Contractor including all sums retained but excluding such sums as have previously been
paid the Contractor. This payment will constitute the final payment to the Contractor under this
Contract.
9.7 Warranty of Title
No material,supplies,or equipment for the work under this Contract shall be purchased subject
to any chattel mortgage,security agreement,or under a conditional sale or other agreement by
which an interest therein or any part thereof is retained by the seller or supplier. The Contractor
warrants good title to all material,supplies,and equipment installed or incorporated in the work
and agrees upon completion of all work to deliver the premises,together with all improvements
and appurtenances constructed or placed thereon by the Contractor, free from any claim, liens,
security interest,or charges,and further agrees that neither the Contractor nor any person,firm,
or corporation furnishing any materials or labor for any work covered by this Contract shall
have any right to a lien upon the premises or any improvement or appurtenances thereon.
***End of Section***
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SECTION 1500
SUPPLEMENTAL GENERAL CONDITIONS
1.0 City Engineer
The City Engineer for the City of Cathedral City is:
John A. Corella, P.E.
Public Works Director/City Engineer
68-700 Avenida Lalo Guerrero
Cathedral City, CA 92234
(760) 770-0327
2.0 Consultants
2.1 Design Engineer- provided by the Design-Build Consultant
2.2 Construction Surveyor
The construction surveyor for this project will be provided by the Design-Build Consultant.
2.3 Materials Testing
Materials testing for this project will be provided by the Design-Build Consultant.
3.0 Liquidated Damages
It is agreed by the parties to the Contract that time is of the essence; and that in the case all
work is not completed before or upon the expiration of the time limit set forth within the
Contract, damage will be sustained by the City and it is, therefore, agreed that the
Contractor will pay to the City an amount of $1,000.00 per work day. The damages
described above will be deducted from any money due the Contractor under this Contract;
the Contractor and his sureties shall be liable for any such excess cost.
The Contractor shall not be deemed in breach of its Contract and no forfeiture due to delay
shall be made because of any delays in the completion of the work due to unforeseeable
causes beyond the control and without the fault or negligence of the Contractor, provided
the Contractor requests an extension of time in accordance with the procedures set forth
in Section 3 of the Standard Specifications. Unforeseeable causes of delay beyond the
control of the Contractor shall include acts of God, acts of a public enemy, acts of the
government, or acts of another contractor in the performance of a contract with the City,
fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, weather, or
delays caused by failure of the City or the owner of a utility to provide for removal or
relocation of existing utility facilities. Delays caused by actions or neglect of the Contractor,
its agents, employees, officers, subcontractors, or suppliers shall not be excusable.
Excusable delays (those beyond Contractor's control) shall not entitle the Contractor to any
additional compensation. The sole remedy of the Contractor shall be to seek an extension
of contract time.
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4.0 Submittals
1. Definitions
A. Shop Drawings, Product Data and Samples: Instruments prepared and
submitted by Contractor, for Contractor's benefit, to communicate to
Engineer the Contractor's understanding of the design intent, for
review and comment by Engineer on the conformance of the submitted
information to the general intent of the design. Shop drawings, product
data and samples are not Contract Documents.
B. Shop Drawings: Drawings, diagrams, schedules and illustrations, with
related notes, specially prepared for the Work of the Contract, to
illustrate a portion of the Work.
C. Product Data: Standard published information ("catalog cuts") and
specially prepared data for the Work of the Contract, including standard
illustrations, schedules, brochures, diagrams, performance charts,
instructions and other information to illustrate a portion of the Work.
D. Samples: Physical examples that demonstrate the materials, finishes,
features, workmanship and other characteristics of a portion of the
Work. Accepted samples shall serve as quality basis for evaluating the
Work.
E. Other Submittals: Technical data, test reports, calculations, surveys,
certifications, special warranties and guarantees, operation and
maintenance data, extra stock and other submitted information and
products shall also not be considered to Contract Documents but shall
be information from Contractor to Engineer to illustrate a potion of the
Work for confirmation of understanding of design intent.
2. Review of Submittals
A. Submittals shall be a communication aid between Contractor and the
Engineer by which interpretation of Contract Documents requirements
may be confirmed in advance of construction.
1. Reviews by Engineer and other design professionals shall be
only for general conformance with the design concept of the
Project and general compliance with the Drawings and
Specifications.
2. Engineer will review submittals as originally submitted and the
first resubmission. Costs for additional reviews shall be
reimbursed by Contractor to Owner by deductive Change Order.
3. All submittals shall be approved by the Engineer and/or City
prior to installation
3. Required Submittals - Not Used.
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SECTION 2000
DIVISION 2 - GENERAL PROJECT REQUIREMENTS
1.0 STANDARD SPECIFICATIONS
The "Standard Specifications" of the City of Cathedral City are contained in the latest
edition of the Standard Specifications for Public Works Construction, including all
supplements, popularly known as the Green Book, as written and promulgated by the Joint
Cooperative Committee of the Southern California Chapter of the American Public Works
Association and the Southern California District of the Associated General Contractors of
California. Copies of the Standard Specifications are available from the publisher, Building
News Inc., as follows:
Bookstore Locations: see website for Southern California locations
Website: www.bnibooks.com
The Standard Specifications shall prevail in all cases except where a Contract Document of
a higher order, as defined in Section 1400-1.2 Discrepancies and Omissions, provides a
different requirement on a given topic or topic aspect. All language in the Standard
Specifications that is not in conflict with the language in the prevailing Contract Documents
on a given topic or topic aspect shall remain in full force and effect, unless the language in
the prevailing Contract Document specifically cites the section number in the Standard
Specification and says said provision is in lieu that Standard Specification section.
1.1 Alternative Specifications — The Standard Specifications shall apply to this project
unless specifically referenced otherwise in the Contract Documents. Wherever
"Construction Specifications Institute(CSI)" are referenced, it shall mean the CSI Standard
Specifications, latest edition, published by the Construction Specifications Institute. Copies
of the Standard Specifications are available from the publisher, Construction Specifications
Institute, as follows:
Bookstore Locations: see website for Southern California locations
Website: www.csinet.org
2.0 STANDARD PLANS
The Standard Plans of the City of Cathedral City adopted by the City Council on August 21,
2001, shall apply to this project unless specifically stated otherwise in the Contract
Documents.
3.0 PRE-CONSTRUCTION CONFERENCE — NOT USED
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4.0 PROGRESS SCHEDULES
4.1 General
Prior to commencing work,the Contractor shall provide a Construction Schedule and Cash
Flow Projection. During the course of construction, the Contractor shall provide a Weekly
Activities Plan.
4.2 Construction Schedule
4.2.1 The schedule shall be submitted within five (5) days of Notice to Proceed and
accepted by the City Engineer before the first partial payment can be made.
4.2.2 The Contractor shall submit the schedule based on the Critical Path Method (CPM).
The schedule shall indicate preceding activity relationships and/or restraints where
applicable and a controlling path shall be indicated. The schedule shall be time scaled and
shall be drafted to show a continuous flow from left to right. The construction schedule
shall clearly show the sequence of construction operations and specifically list:
a. The start and completion dates of all work items.
b. The dates of submittals, procurement, delivery, installation and completion
of each major equipment and material requirement.
c. Progress milestone events or other significant stages of completion.
d. The lead time required for testing, inspection and other procedures required
prior to acceptance of the work.
Activities shall be no longer than 10 workdays, except for submittals and delivery items. If
an activity takes longer, it shall be broken into appropriate segments of work for
measurement of progress. This limitation may be waived, upon approval of the City
Engineer, for repetitious activities of longer durations for which progress can be easily
monitored.
4.2.3 Any activity that cannot be completed by its original completion date shall be
considered to be "behind schedule."
4.2.4 At not less than monthly intervals and when requested by the City Engineer, the
Contractor shall submit a revised schedule for all work remaining. If, at any time, the City
Engineer considers the project completion date to be in jeopardy because of activities
"behind schedule," the Contractor shall submit additional schedules and diagrams
indicating how the Contractor intends to accomplish the remaining work to meet the
Contract completion date.
4.2.5 All change orders, regardless of origin, shall be reflected in the schedule.
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4.3 Time Impact Analysis
4.3.1 When change orders are initiated, delays are experienced, or the Contractor desires
to revise the schedule logic, the Contractor shall submit to the City Engineer a written Time
Impact Analysis illustrating the influence of each change, delay, or Contractor request on
the current contract schedule completion date.
4.4 Weekly Activities Plan
On the last working day of every week the Contractor shall submit to the City Engineer the
Contractor's Plan of Activities for the following two weeks. The Plan of Activities shall
describe the activity and location of the activity.
4.5 Cash Flow Projection
A cash flow projection shall be submitted with the Construction Schedule. This cash flow
projection shall be revised and resubmitted when revisions of the Construction Schedule
will result in changes to the projected cash flow.
4.6 Lump Sum Price Breakdown
For work to be performed for a lump sum price, the Contractor shall submit a price
breakdown to the City Engineer prior to the first payment and within twenty (20) calendar
days after award of the Contract. The price breakdown, as agreed upon by the Contractor
and the City Engineer, shall be used for preparing future estimates for partial payments to
the Contractor, and shall list the major items of work with a price fairly apportioned to each
item. Mobilization, overhead, bond, insurance, other general costs and profit shall be
prorated to each item so that the total of the prices for all items equal the lump sum price.
At the discretion of the City Engineer, mobilization, bond and insurance costs may be
provided for separately if accompanied by invoices to verify actual expenses.
The price breakdown will be subject to the approval of the City Engineer, and upon request,
the Contractor shall substantiate the price for any or all items and provide additional level
of detail, including quantities of work. The price breakdown shall be sufficiently detailed
to permit its use by the City Engineer as one of the bases for evaluating requests for
payments. The City Engineer shall be the sole judge of the adequacy of the price
breakdown.
5.0 SPECIAL CONTROLS
The Contractor shall take all reasonable means to minimize inconvenience and injury to the
public by dust, noise, diversion of storm water, or other operations under its control.
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5.1 Dust Control
The Contractor at its expense shall take whatever steps, procedures, or means as are
required to comply with Section 3000-4.2 and prevent abnormal dust conditions being
caused by its operations in connection with the execution of the Work.
5.2 Noise Abatement
Operations shall be performed so as to minimize unnecessary noise. Special measures
shall be taken to suppress noise during night hours. Noise levels due to construction
activity shall not exceed the levels specified by local ordinance.
Internal combustion engines used on the Work shall be equipped with a muffler of a type
recommended by the manufacturer. No internal combustion engine shall be operated
without said muffler.
5.3 Working Hours
Construction operations and maintenance of equipment within one half mile of human
occupancy shall be performed only during the time periods as follows:
October 1 to April 30: Monday - Friday 7:00 AM to 5:30 P.M.
May 1 to September 30: Monday - Friday 6:00 AM to 7:00 P.M.
The Contractor shall be responsible for any inspection and additional administration costs
incurred by the City for work by the Contractor after the hours defined above on weekdays,
or any work on weekends or holidays recognized by the City. Such costs shall be withheld
from the succeeding monthly progress payment. Any work in Section 3000, SPECIFIC
PROJECT REQUIREMENTS, specifically required to be performed outside the normal
working hours are excluded from the provisions of this paragraph.
The Contractor shall notify the City Engineer at least 72 hours prior to any work outside the
normal working hours defined above, on weekends or holidays.
5.4 Drainage Control
In all construction operations, care shall be taken not to disturb the existing drainage
pattern whenever possible. Particular care shall be taken not to direct drainage water onto
private property. Drainage water shall not be diverted to streets or drainage ways
inadequate for the increased flow. Drainage means shall be provided to protect the Work
and adjacent facilities from damage to water from the site or due to altered drainage
patterns from construction operations.
Temporary provisions shall be made by the Contractor to insure the proper functioning of
gutters, storm drain inlets, drainage ditches, culverts, irrigation ditches, and natural water
courses.
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5.5 Construction Cleaning
The Contractor shall, at all times, keep property on which work is in progress and the
adjacent property free from accumulations of waste material or rubbish caused by
employees or by the work. All surplus material shall be removed from the site immediately
after completion of the work causing the surplus materials. Upon completion of the
construction, the Contractor shall remove all temporary structures, rubbish, and waste
materials resulting from his operations.
5.6 Disposal of Material
The Contractor shall make arrangements for disposing of materials outside the right-of-
way and the Contractor shall pay all costs involved. The Contractor shall first obtain
permission from the property owner on whose property the disposal is to be made and
absolve the City from any and all responsibility in connection with the disposal of material
on said property. When material is disposed of as above provided, the Contractor shall
conform to all required codes pertaining to grading, hauling, and filling of earth.
5.7 Parking and Storage Areas
All stockpiled materials and parked equipment at the job site shall be located to avoid
interference with private property and to prevent hazards to the public. Locations of
stockpiles, parking areas, and equipment storage must be approved by the City Engineer.
6.0 PROTECTION AND RESTORATION OF EXISTING IMPROVEMENTS
The Contractor shall be responsible for the protection of public and private property at and
adjacent to the Work and shall exercise due caution to avoid damage to such property.
The Contractor shall repair or replace all existing improvements within the right-of-way,
which are not designated for removal (e.g., curbs, sidewalks, survey points, fences, walls,
signs, utility installations, pavements, structures, etc.) which are damaged or removed as
a result of its operations. Repairs and replacements shall be at least equal to existing
improvements and shall match them in finish and dimension.
Trees, lawns, and shrubbery that are not to be removed shall be protected from damage or
injury. If damaged or removed because of the Contractor's operations, they shall be
restored or replaced in as nearly the original conditions and location as is reasonably
possible. Lawns shall be restored with sod, seeded according to season. Patch by re-
seeding only with approval by City.
The Contractor shall give reasonable notice to occupants or owners of adjacent property to
permit them to salvage or relocate plants, trees, fences, irrigation, sprinklers, and other
improvements within the right-of-way which are designated for removal and would be
destroyed because of the work.
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7.0 EXISTING UTILITIES
7.1 General
Existing utilities shown on the drawings are as exact as can be prepared, but their accuracy
is not guaranteed. The Contractor shall verify exact location of all utilities prior to the start
of construction. Pursuant to Government Code Section 4216, et. seq., the Contractor shall
notify the appropriate required notification center. The notification center for Cathedral
City can be reached by contacting UNDERGROUND SERVICE ALERT (USA) at 1-800-422-
4133 or dial 811. USA member utilities will provide the Contractor with the precise locations
of their substructures in the construction area when the Contractor gives at least 48 hours'
notice.
7.2 Notification and Location
At least two (2) working days before performing any excavation work, the Contractor shall
request the utility owners to mark or otherwise indicate the location of their service.
It shall be the Contractor's responsibility to determine the exact location and depth of all
utilities, including service connections, which have been marked by the respective owners
and which he believes may affect or be affected by his operations. If no pay item is
provided in the Contract for this work, full compensation for such work shall be considered
as included in the prices bid for other items of work.
The Contractor shall notify the following agencies at least 48 hours in advance of
excavating around any of their structures. The following utility companies provide service
to the Cathedral City area and can be contacted via the USA telephone number or the
number list below.
1. Southern California Gas Company, (760) 341-4534
2. Southern California Edison, (760) 202-4290
3. Verizon (Formally GTE), (760) 778-3621
4. Coachella Valley Water District, (760) 398-2651
5. Time Warner Cable, (760) 340-1312
7.3 Damage and Protection
The Contractor shall immediately notify the City Engineer and utility owner of any damage
to a utility.
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7.4 Utility Relocation and Rearrangement
The right is reserved to the City and the owners of utilities or their authorized agents to
enter upon the Work area for the purpose of making such changes as are necessary for the
rearrangement of their facilities or for making necessary connections or repairs to their
properties. The Contractor shall cooperate with forces engaged in such work and shall
conduct his operations in such a manner as to avoid any unnecessary delay or hindrance
to the work being performed by such forces and shall allow the respective utilities time to
relocate their facility.
The Contractor assumes responsibility for the removal, relocation, or protection of existing
facilities wherein said facilities are identified by the Plans,field located by a utility company,
or as provided for in the General Requirements. The Contractor shall coordinate with the
owner of utility facilities for the rearrangement of said facilities.
In the event that underground utilities are found that are not shown in the Contract
Documents or are found to exist in a different location than shown in the Contract
Documents, the Contractor shall: (1) notify the City Engineer of the existence of said
facilities immediately; and (2) take steps to ascertain the exact location of all underground
facilities prior to doing work that may damage such facilities.
Requests for extensions of time arising out of utility rearrangement delays shall be
determined by City Engineer. In accordance with Government Code Section 4215 the
Contractor shall not be assessed liquidated damages for delay in completion of the project,
when such delay is caused by the failure of the City or utility company to provide for the
removal or relocation of facilities for which they are the responsible party as defined in
Paragraph 2000-7.3, Damage and Protection.
Where it is determined by the City Engineer that the rearrangement of an underground
main, the existence of which is not shown on the Plans, Specifications, or in the General
Requirements, is essential in order to accommodate the contemplated improvement, the
City Engineer will provide for the rearrangement of such facility by other forces or by the
Contractor in accordance with the provisions of Paragraph 1400-7.1, Change Orders.
When the General Requirements, Specifications, or Plans indicate that a utility is to be
relocated, altered or constructed by others, the City will conduct all negotiations with the
utility company and the work will be done at no cost to the Contractor.
Temporary or permanent relocation or alteration of utilities desired by the Contractor for
its own convenience shall be the Contractor's responsibility and it shall make arrangements
and bear all costs.
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7.5 Underground Facilities
The Contractor is responsible for coordinating all project documentation, including but not
necessarily limited to, the Contract Documents and existing record drawings for the
determination of the location of all underground facilities.
The Contractor shall exercise care in all excavations to avoid damage to existing
underground facilities. This shall include potholing or hand digging in those areas where
underground facilities are known to exist until they have been sufficiently located to avoid
damage to the facilities.
Prior to fabrication, the Contractor shall verify the location and elevations of existing
underground facilities, which the Contractor is connecting to.
No additional compensation shall be provided the Contractor for compliance with the
provisions of this section or for the damage and repair of facilities due to the lack of such
care.
The California Public Utilities Commission mandates that, in the interest of public safety,
main line gas valves be maintained in a manner to be readily accessible and in good
operating condition. The Contractor shall notify The Gas Company's Headquarters
Planning Office at least 2 working days prior to the start of construction.
***END OF SECTION***
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SECTION 3000
DIVISION 3 SPECIAL PROVISIONS
1.0 GENERAL
1.1 Drawings of Record
Provide and keep up-to-date, a complete record set of blue line prints. Correct these
prints daily, and show every change from the original drawings. Keep this set of
prints on the job site, and use only as a record set. Do not construe this as
authorization to make changes in the layout without definite instruction in each case.
Incorporate all changes as noted on the record set of prints thereon with black ink
in a neat, legible, understandable and professional manner. Deliver this set to the
City upon completion and acceptance of work.
1.2 Cooperation with Other Contractors
Section 7-7 of the Standard Specifications is amended by the addition of the
following provisions:
Should the Contractor foresee any interference, or believe project delays or
problems might occur due to any action of any other contractor, or if the Contractor
determines his own work may cause a delay to the work of the other contractors,
the Contractor shall bring this to the attention of the Engineer as soon as possible
so that the potential problems or delays may be worked out before problems arise.
It is the intention of these Specifications that the Contractor shall cooperate as
needed to effect this purpose, and shall be prepared to make short delays, to
redeploy its work force to other parts of the work or project, to temporarily
reschedule work, and take other reasonable actions to minimize interference and
maximize cooperation with all other parties working within the project area.
If the Contractor maintains that he is unable to reasonably cooperate with others,
then the Contractor shall be prepared to verify to the satisfaction of the Engineer
that there are no reasonable actions which he could take to cooperate with others,
and that if he did, such actions would cause serious financial harm or unreasonable
delay to the Contractor. If the Engineer finds that such evidence is unsatisfactory,
the Engineer may order the Contractor to take whatever reasonable actions the
Engineer determines are necessary to provide the needed cooperation in order to
meet the intent of these Specifications.
The contractor shall have no claim for extra compensation for any delay or costs if
his work is held up, delayed or interrupted by the City's having to order cooperative
work measures or schedule priorities as outlined above. An extension of contract
time shall be the only compensation granted.
2.0 Not Used.
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3.0 MATERIALS
Materials and equipment shall be so stored as not to create a public nuisance and
to insure the preservation of their quality and fitness for the work.
4.0 WORK DETAILS
4.1 Traffic Control - Not Used.
4.2 Dust Control
The Contractor must comply with the City of Cathedral City's Municipal Code,
Chapter 6.16, "Fugitive Dust Control" Ordinance. Dust generated by traffic,
Contractor's operations, or wind are all included in the definition of dust. The
Contractor will be responsible for watering the work area where dust is generated
from traffic, contractor's operations and wind. Contractor's area of operations
includes areas outside of roadbed or trench limits where excavation, fill, or
stockpiling of dirt or debris has taken place. The Contractor is responsible for
monitoring all of the above-described areas in the project area during the life of the
project, including holidays and weekends.
The Contractor shall prepare for review and approval by the City, the required PM-
10 plan. The plan shall be prepared in accordance with South Coast Air Quality
Management District guidelines. The Contractor shall have a designated person
Certified by the SCAQMD to prepare the PM-10 plan and oversee the approved dust
control measures. Dust control shall include, but is not limited to the following:
1) Maintain dust control at all times by watering, including developing a water
supply, and furnishing and placing all water required for work done in the
contract.
2) Provide means to prevent track out onto public streets.
3) Provide street sweeping of material tracked onto public streets.
4.3 Water
The Contractor shall make arrangements with the Coachella Valley Water District to
obtain water from designated fire hydrants at or near the project for use in dust
control. It shall be the responsibility of the contractor to pay for the water and any
deposits required. The cost to furnish and apply water shall be included in the unit
prices for the various items bid and no additional payment will be allowed therefore.
4.4 Permits. Licenses and Inspection Fees
The Contractor shall obtain and pay for all costs incurred for permits, licenses and
inspection fees required by other agencies because his operations. Prior to starting
any work, the Contractor shall be required to have a City of Cathedral City Business
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License for the life of the contract; his subcontractors shall also have Business
Licenses for the time they are engaged in work. The Contractor will also be required
to obtain a no-cost encroachment permit from the City of Cathedral City.
4.5 Air Contaminants
The Contractor shall not discharge smoke, dust or any other air contaminants into
the atmosphere in such quantity as will violate the regulations of any legally
constituted authority.
4.6 Notification
The Contractor shall notify the City, local authorities, and utility companies, of his
intent to begin work at least five days before work is to begin. The Contractor shall
cooperate with local authorities relative to handling traffic through the area
including coordinating with trash collection, school bus schedules, public
transportation and emergency activities.
Three days before work is to begin, the Contractor shall provide written notice of
intent to begin work to all occupied residential and commercial properties abutting
proposed improvements. The written notice will be approved by the City prior to
issuance, and shall include at least the following information: brief description of
the improvements, the name, address and phone number of the Contractor, and the
date and time work is to begin and finish.
*** END OF SECTION ***
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