Design-Build_Agreement.docx

DESIGN-BUILD CONTRACT BETWEEN

CITY OF PALM DESERT AND << CONTRACTOR>>, INC.

FOR THE WAYFINDING AND ENTRY MONUMENT IMPROVEMENTS

2.1 Project.

2.1.3 Contractor submitted a Proposal in response to the City’s Request for Proposals, which was evaluated and selected as providing the best value to the City.

2.1.4 Contractor desires to perform and assume responsibility for the provision of the design and construction services, and such other services as required by the City on the terms and conditions set forth in this Contract and Contractor represents that it is experienced in providing professional planning, design, and construction services to public entities, is appropriately licensed in the State of California to perform such services, and is familiar with the Scope of Work and that it and its subcontractors are duly registered with the Department of Industrial Relations to perform public works in the State of California.

3. Incorporation of Contract Documents.

3.1. The above referenced recitals are true and correct and are incorporated into this Contract by this reference. This Contract includes and hereby incorporates in full by reference the following Contract Documents, including all exhibits, drawings, specifications and documents therein, and attachments and addenda thereto:

(a) City-approved Change Orders

(b) This Design-Build Contract

(c) Completed and City-approved Construction Documents

(d) Attachment 1 to this Contract – Scope of Work

(e) Attachment 1-1 to this Contract – Contractor’s Proposal

(f) Attachment 2 to this Contract - General Conditions

(g) Attachment 3 to this Contract – Special Conditions

(h) Attachment 4 to this Contract – Performance Bond

(i) Attachment 5 to this Contract – Payment Bond

(j) Attachment 6 to this Contract – Rate Schedule

(k) Attachment 7 to this Contract – Workers’ Compensation Certification

(l) Request for Proposal (RFP), addenda, attachments and appendices

4. Contractor’s Basic Obligations; Compensation.

4.1 Contractor promises and agrees, at its own cost and expense, to furnish to the City all design, engineering, fabrication, construction services, labor, materials, tools, equipment, services, and incidental and customary work necessary to fully and adequately complete the Project as described in the Contract Documents (hereinafter the “Scope of Work” or “Work”).

4.2 City shall pay to Contractor, as full compensation for the performance of the Contract, subject to any additions or deductions as provided in the Contract Documents and including all applicable taxes and costs, the sum of COMPENSATION ($__________) (“Contract Price”). Payment shall be made as set forth in the General Conditions.

4.3 Unless otherwise expressly provided in the Contract Documents, the Contract Price is a lump sum amount and shall include all costs and expenses required to fully design, engineer, fabricate, and construct the Project in accordance with the Contract Documents, including all costs associated with design development, coordination, refinement, and completion of the Project consistent with the Contract Documents, whether or not such work is expressly identified.

5. Change Orders; Adjustments to Contract Price or Contract Time.

5.1 Authorization Required. Any change in Scope of Work, method of performance, nature of materials, Contract Price, or Contract Time shall not be paid for, approved, or accepted unless such change is authorized in advance and in writing by a valid Change Order executed in accordance with the Contract Documents.

5.2 Condition Precedent; Waiver. Strict compliance with all notice and Change Order Request procedures set forth in the Contract Documents is a condition precedent to any adjustment of the Contract Price or Contract Time. Failure of Contractor to timely submit written notice and a Change Order Request in accordance with the Contract Documents shall constitute a waiver of Contractor’s right to any such adjustment.

6. Standard of Care.

6.1 Contractor’s performance shall be consistent with the standards set forth in the Contract and the General Conditions. Contractor warrants to City that all Design Work will be performed in accordance with the standard of care ordinarily exercised by design professionals practicing under similar circumstances and conditions for projects of similar type, scope, quality, and complexity utilizing the design-build contracting mode. Contractor warrants to City that all labor, materials, equipment, and furnishings used in, or incorporated into, the Construction Work will be of good quality, new (unless otherwise required or permitted by the Contract Documents), and that all work will be free of liens, claims, and security interests of third parties; that the work will be free from defects and will conform with the requirements of the Contract Documents. Contractor shall supervise, inspect, and direct the Project competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Project in accordance with the Contract Documents. Contractor shall be solely responsible for the means, methods, techniques, sequences, and procedures of design and construction of the Project. Contractor shall perform, at its own cost and expense and without reimbursement from the City, any services necessary to correct errors or omissions caused by Contractor’s failure to comply with the standard of care provided for herein. Contractor shall be fully responsible for the adequacy, completeness, and coordination of all design and construction performed under this Contract.

7. Period of Performance; Liquidated Damages.

7.1 Time is of the essence in the performance of the Work. The Contractor shall perform and complete all Work required by the Contract Documents, including design, permitting, fabrication, and construction, and shall achieve Final Completion of the Project no later than Three Hundred Sixty-Five (365) calendar days from the date specified in the initial Notice to Proceed issued for the Construction Document Phase (“Project Completion Date”). The Three Hundred Sixty-Five (365) calendar day Contract Time includes both the Construction Document Phase and the Construction Phase.

7.2 Contractor shall be solely responsible for coordinating and sequencing all phases of the Work to ensure achievement of Final Completion within the Contract Time. Issuance of a separate Notice to Proceed for the Construction Phase shall not extend, restart, or otherwise modify the Project Completion Date unless expressly provided in a written Change Order executed in accordance with the Contract Documents.

7.3. For purposes of this Contract, “Final Completion” shall mean completion of all Work, including correction of deficient or nonconforming Work, completion of all punch list items, delivery of all required closeout documents, and written acceptance of the Work by the City in accordance with the Contract Documents.

7.4 Pursuant to Government Code Section 53069.85, the Contractor agrees that it shall be liable to the City for liquidated damages in the amount of One Thousand Dollars ($1,000.00) per calendar day for each and every calendar day beyond the Project Completion Date that Final Completion of the Project has not been achieved. If Final Completion is not achieved by the Project Completion Date, it is understood that the City will suffer damage, and that it is and will be difficult and/or impossible to ascertain and determine the actual damage which the City will sustain by reason of the Contractor’s failure to complete the Work within the time required. Therefore, the Contractor shall pay to the City the stipulated sum as fixed and liquidated damages and not as a penalty. Any money due or to become due the Contractor may be retained to cover such liquidated damages.

8. Approval of Design; Commencement of Construction.

8.1 The Scope of Work shall consist of two phases: the Construction Document Phase and the Construction Phase. The City shall issue a Notice to Proceed for each Phase.

8.2 The Contractor shall commence the Construction Document Phase after receipt of City’s Notice to Proceed and complete the Construction Document Phase work within One Hundred Twenty (120) calendar days of the Notice to Proceed date. The design shall consist of preparation of the Construction Documents as set forth in the General Conditions. The Bridging Documents establish the City’s design intent, performance requirements, and minimum project requirements. Contractor shall be fully responsible for developing the design and delivering a complete Project consistent with such requirements.

8.3 Contractor shall submit the following to City for approval:

(a) Schematic Design;

(b) 60% Construction Documents;

(c) 90% Construction Documents; and

(d) 100% Construction Documents.

8.4 The City’s review and approval of the design shall not relieve the Contractor from its responsibilities under the Contract. Such review shall not be deemed an approval or waiver by the City of any deviation from, or of the Contractor’s failure to comply with, any provision or requirement of the Contract Documents, unless such deviation or failure has been specifically identified in writing by the Contractor and expressly approved in writing by the City. City review or approval of Construction Documents shall not constitute verification of design adequacy, constructability, code compliance, structural integrity, or engineering sufficiency.

8.5 The Contract Schedule shall indicate the time for the City to review the proposed Construction Documents and shall provide a reasonable time for review of same, not less than ten (10) calendar days. Contractor shall not be entitled to any increase in Contract Price or extension of Contract Time for delays occurring during the Construction Document Phase, except to the extent such delay is caused solely by the City’s failure to perform its review within the time periods expressly set forth in the Contract Documents.

8.6 Contractor shall not commence construction until the City issues a Notice to Proceed with Construction. Issuance of the Notice to Proceed with Construction authorizes commencement of the Construction Phase only and shall not extend, restart, or otherwise modify the Project Completion Date or Contract Time. Contractor shall coordinate and sequence all design and construction activities to achieve Final Completion within the Contract Time established in Section 7.1.

8.7 If the City authorizes commencement of any portion of the Construction Phase prior to approval of the 100% Construction Documents, Contractor shall proceed at its sole risk with respect to any incomplete or partially approved design documents and shall not be entitled to any increase in Contract Price or extension of Contract Time arising from coordination issues, errors, omissions, or conflicts within such incomplete or partially approved design documents.

9. City’s Representative

9.1 The City hereby designates Senior Project Manager, Chris Gerry, or his or her designee, as the person to act as its representative for the performance of this Contract (“City’s Representative”). The City’s Representative shall be authorized to act as liaison between City and the Contractor in the administration of this Contract and all work on the Project. The City’s Representative shall have the power to act on behalf of the City for all purposes under this Contract, including for the purpose of approving the design. City may designate new and/or different individuals to act as City’s Representative from time to time upon written notice to the Contractor. The City’s Representative shall not have authority to approve Change Orders, amendments to the Contract, increases in Contract Price, or extensions of Contract Time unless expressly authorized in writing by the City Manager or City Council.

10. Contractor Representative.

10.1 The Contractor hereby designates <<Name, Title >>, or his or her designee, to act as its representative for the performance of this Contract (“Contractor Representative”). Contractor’s Representative shall have full authority to represent and act on behalf of the Contractor for all purposes under this Contract. Contractor’s Representative shall supervise and direct all work on the Project, using his best skill and attention, and shall be responsible for all means, methods, techniques, sequences and procedures and for the satisfactory coordination of all portions of the work pursuant to this Contract.

11. Contractor’s License and Registration.

11.1 The Contractor shall have only appropriately licensed contractors performing work on the Project as required by the Business and Professions Code. The Contractor (<<License No.>>) shall act as the licensed contractor for the Project. Contractor shall perform all services required under the Contract Documents in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals qualified to perform such services in the same discipline in the State of California, and the Contractor shall be fully responsible to the City for any damages and/or delays to the Project as specified in the Contract. The licensed contractor shall be registered with the Department of Industrial Relations to perform public work (DIR Registration No. <<INSERT>>).

12. Contractor’s Design Professional.

12.1 The Contractor shall name a specific person to act as the Design Professional as described in the General Conditions, subject to the approval of the City. The Contractor hereby designates <<Name, Title>> (<<License No.>>) to act as the Design Professional for the Project. Contractor’s Design Professional shall perform all services required under the Contract Documents in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals qualified to perform such services in the same discipline in the State of California, and the Contractor shall be fully responsible to the City for any damages and/or delays to the Project as specified in the indemnification provisions of the Contract. Any change in the Design Professional shall be subject to the City’s prior written approval, which approval shall not be unreasonably withheld. The new Design Professional shall be of at least equal competence as the prior Design Professional. In the event that City and Contractor cannot agree as to the substitution of a new Design Professional, the City shall be entitled to terminate this Contract as described in the General Conditions.

13. Authority of Signatories.

13.1 The persons executing this Contract on behalf of their respective Parties represent and warrant that they have the authority to do so under law and from their respective Parties.

[SIGNATURES ON FOLLOWING PAGE]

SIGNATURE PAGE TO CONTRACT FOR DESIGN-BUILD

BY AND BETWEEN THE CITY OF PALM DESERT

AND COMPANY NAME

IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed on the day and year first above written.

CITY OF PALM DESERT

Chris Escobedo City Manager

Attest:

Anthony J. Mejia City Clerk

Approved as to form:

Isra Shah City Attorney

COMPANY NAME, BUSINESS TYPE

Name Title

Name Title

Contractor’s License Number and Classification

DIR Registration Number

Office Use:

Bonds

ATTACHMENT 1

SCOPE OF WORK

1. Project Overview The City of Palm Desert (“City”) is soliciting proposals from qualified design–build teams to provide final design, engineering, fabrication, installation, and construction services for the citywide implementation of the City’s adopted Wayfinding and Monument Master Plan.

The project generally includes construction of three (3) new City entry monument signs; relocation of two (2) existing public art monument signs; and removal and replacement of the City’s wayfinding sign system, including installation of approximately fifty-eight (58) new wayfinding signs and removal of approximately eighty-two (82) existing wayfinding signs across multiple sign types and locations throughout the City.

The adopted Wayfinding and Monument Master Plan (“Master Plan”) establishes the City’s approved design framework, sign families, materials palette, typography, and overall design character and shall serve as the governing design standard for this project. The Contractor awarded the Contract shall implement the Master Plan faithfully while refining site-specific details necessary to achieve constructible, durable, and code-compliant improvements; provided, however, that such refinement shall not relieve the Contractor of responsibility to deliver a complete Project for the agreed Contract Price.

The City has identified funding sufficient to deliver the core elements of the Master Plan. The total project budget, inclusive of design, engineering, fabrication, installation, permitting, and construction services, shall not exceed $2,500,000. Proposers shall develop their proposals and sequencing strategies in a manner consistent with this budget constraint.

The Scope of Work includes all civil, structural, electrical, landscape, irrigation, grading, and site improvements necessary to deliver complete and fully operational installations consistent with the Master Plan. The Contractor shall provide all labor, materials, equipment, supervision, coordination, and incidental components necessary to deliver a complete, fully operational, and code-compliant Project consistent with the adopted Master Plan and Contract Documents.

No additional compensation shall be granted for Work that is reasonably inferable from the Contract Documents, industry standards, or necessary to achieve the intended function of the Project, even if not expressly described herein, provided such work is reasonably inferable based on the level of detail reasonably expected at the time of proposal. The Contractor acknowledges that the Contract Price includes all such Work.

The Project shall be developed using a design-to-budget approach. Contractor shall collaborate with the City during the design phase to evaluate alternatives, materials, systems, and sequencing to align the Project scope with the City’s budget priorities.

The Project may be implemented in prioritized phases or adjusted in scope to align with available funding. The Contractor shall assist the City in identifying prioritization strategies and sequencing approaches to maximize the effectiveness of available project funds.

The City reserves the right to include, modify, defer, or exclude elements of the Project based on cost, value, and operational considerations, provided the final Project remains consistent with the Contract Documents.

2. Project Initiation and Coordination

· Review the adopted Wayfinding and Monument Master Plan and all relevant background materials.

· Conduct kickoff meetings with City staff.

· Establish coordination protocols, design and construction milestones, and decision points.

· Coordinate with City representatives, property owners, artists, utility providers, regulatory agencies, and other stakeholders as required.

· Contractor shall submit a detailed project schedule following Notice to Proceed, identifying design milestones, permitting durations, fabrication lead times, construction sequencing, critical path activities, and anticipated final completion.

· Contractor shall prepare and submit detailed cost estimates at each design milestone, including, at a minimum, schematic design, intermediate design, and final construction document stages, to support ongoing evaluation of project scope relative to the available budget. Cost estimates shall be sufficiently detailed to identify major cost components, including labor, materials, subcontractor costs, general conditions, overhead, and profit.

· Contractor shall actively support value analysis throughout the design process and shall identify alternative materials, systems, or design approaches that may reduce cost, improve durability, or enhance long-term maintenance. Contractor shall present options to the City, including associated cost impacts, to support informed decision-making.

Contractor shall work collaboratively with the City throughout the design process, incorporating City feedback and participating in regular coordination meetings to review design progress, cost alignment, and project priorities.

3. Site Verification, Survey, and Utility Coordination

· Perform field verification of proposed monument and wayfinding sign locations.

· Provide surveying services necessary to support design and construction, including horizontal and vertical control.

· Evaluate site-specific constraints including visibility, access, geometry, constructability, drainage, utilities, traffic considerations, and ADA compliance.

· Conduct utility coordination and incorporate utility constraints into final design.

· The Contractor shall verify existing field conditions and assume responsibility for coordination and resolution of conflicts reasonably discoverable through customary investigation.

· Subsurface utility engineering or potholing shall be included only as required to support approved improvements.

· The Contractor shall coordinate with applicable utility providers for all electrical service requirements associated with illuminated signage, including service upgrades, new connections, metering, and utility clearances as required to deliver fully operational illuminated signage.

· Contractor shall perform all site investigations reasonably necessary to verify subsurface and field conditions affecting the Work.

· Contractor shall bear the risk of conditions that could have been identified through customary investigation and shall not be entitled to additional compensation or extension of Contract Time for such conditions.

4. Permitting and Regulatory Approvals

· Obtain all permits, encroachment approvals, traffic control approvals, electrical permits, utility clearances, and other regulatory approvals necessary to complete the work.

· Prepare and submit all required documentation to applicable agencies and incorporate permit conditions into final design and construction.

· Coordinate inspections required by permitting authorities.

5. Public Art Monument Relocation

· Provide planning, coordination, design, and construction services for relocation of existing public art monument signs, including:

· Deinstallation

· Transportation

· New foundations

· Electrical and lighting

· Installation

· Site restoration

· Services shall include coordination with artists and property owners, constructability review, and full integration with fabrication and installation activities.

6. Design Development and Final Design

· Advance monument and wayfinding designs consistent with the adopted Master Plan.

· Finalize sign locations, orientations, foundations, structural systems, lighting systems, landscaping interfaces, materials, and finishes.

· Prepare site-specific landscape design concepts and construction documents for monument locations, including planting layouts, irrigation modifications, grading adjustments, decorative rock or groundcover treatments, and hardscape integration necessary to deliver cohesive and visually integrated improvements.

· Prepare fabrication-ready drawings, details, structural calculations, and specifications.

· Develop City-directed additive or deductive options that do not materially alter approved sign families or design character.

· Final sign messaging, destinations, and content shall be refined during design development in coordination with the City prior to fabrication.

7. Performance Standards

· All signs and structural components shall meet the following minimum performance criteria:

· Structural design consistent with applicable California Building Code wind load requirements and site-specific conditions.

· Durable materials suitable for desert climate exposure, including high UV conditions and temperature fluctuations.

· Corrosion-resistant materials and coatings appropriate for long-term outdoor installation.

· Illumination systems (where applicable) designed for consistent nighttime visibility and energy efficiency.

· Major structural components shall be designed for a minimum service life of twenty (20) years under normal operating and environmental conditions.

· Landscape improvements shall be designed for durability, water efficiency, proper drainage, and long-term maintainability consistent with City standards and desert climate conditions.

· Signage finishes shall incorporate graffiti-resistant coatings suitable for desert exposure conditions.

· Fasteners, access panels, and mounting systems shall incorporate tamper-resistant or anti-theft hardware where reasonably appropriate.

· Signage and associated improvements shall be designed to allow safe and efficient maintenance access using standard City maintenance equipment unless otherwise approved by the City.

8. Cost Control and Project Management

· Manage and control project costs throughout design, fabrication, and construction.

· Identify cost drivers and opportunities for efficiencies without degradation of approved design quality, durability, or long-term maintenance performance.

· Deliver the project within the Contract Price, subject only to City-approved changes.

· The Contractor shall continuously evaluate design decisions against budget impacts and shall promptly notify the City if projected costs indicate potential exceedance of available funding.

9. Fabrication and Construction

· Fabrication and installation of monument and wayfinding signage.

· Deinstallation and relocation of public art monument signs.

· Foundations, structural supports, electrical systems, lighting systems, and site restoration.

· Traffic control, coordination, and site management.

· Provide record drawings, maintenance manuals, and recommended maintenance schedules for all installed components prior to final acceptance.

· Construct all approved landscape improvements associated with monument and wayfinding installations, including planting, irrigation installation or modification, grading, decorative rock or groundcover placement, hardscape restoration or replacement, and full restoration of disturbed areas.

· Work shall be sequenced to minimize disruption to public navigation, traffic operations, and adjacent businesses. Removal and replacement activities shall be coordinated to avoid prolonged absence of functional wayfinding signage.

· The Contractor shall include a qualified signage fabrication firm as a designated subcontractor at the time of proposal. The signage fabricator shall demonstrate experience in fabrication and installation of large-scale municipal wayfinding and monument signage projects of comparable size, complexity, materials, and environmental exposure conditions. Proposers shall identify the signage fabricator in their proposal and provide representative project examples demonstrating comparable qualifications and experience.

· The Contractor may self-perform portions of the work or utilize subcontractors, provided all work is performed in accordance with applicable licensing requirements and approved by the City as required under the Contract.

10. Construction-Phase Design Support and Integration

· Provide all design services necessary to support construction under a unified design–build delivery model, including internal coordination between design and construction personnel.

· Prepare and manage submittals, shop drawings, fabrication details, and issue resolution without reliance on separate City design consultants.

· Participate in coordination meetings as requested by the City.

11. Warranty

· Provide a minimum one (1) year warranty for workmanship and installation from the date of the City’s written final acceptance of the work.

· Provide a minimum five (5) year warranty on finishes and coatings against peeling, cracking, excessive chalking, corrosion, or excessive fading under normal exposure conditions.

· Where manufacturer warranties for finishes, coatings, lighting components, electrical systems, or specialty materials exceed the minimum warranty periods stated herein, such longer manufacturer warranties shall be assigned to the City upon project completion.

· Provide all manufacturer warranties for lighting components, electrical systems, and specialty materials and assign such warranties to the City upon project completion.

· Warranty periods shall commence upon the City’s written final acceptance of the work. Corrective work required during the applicable warranty period shall be performed at no cost to the City.

· Warranty coverage shall not apply to damage resulting from vandalism, vehicular impact, Acts of God, or improper maintenance performed by others.

· The one (1) year workmanship warranty shall not limit any longer manufacturer warranties or statutory rights available to the City.

12. City Authority and Discretion

· The City retains final approval authority over:

· Sign locations and relocations

· Sign quantities

· Messaging and content

· Materials and finishes

· Acceptance of design deliverables

· Scope adjustments, additions, or deletions

· The City may modify, defer, add, or eliminate elements of the project to remain within available funding and policy direction.

13. Budget and Authorization

· The Contractor shall sequence and prioritize work as necessary to ensure delivery within the established budget. The Contractor shall deliver the project within the agreed-upon Contract Price, subject only to City-approved changes in scope.

A1-12

ATTACHMENT 1-1

PROPOSAL

A1-3-13

ATTACHMENT 2

GENERAL CONDITIONS

1. DEFINITIONS AND TERMINOLOGY

1.1 Defined Terms.

1.1.1 Wherever used in the Contract Documents and printed with initial capital letters, the terms listed below will have the meanings indicated which are applicable to both the singular and plural thereof. In addition to terms specifically defined below, terms with initial capital letters in the Contract Documents include references to identified articles and paragraphs, and the titles of other documents or forms.

1.1.1.1 Act of God -- Act of God is an earthquake of magnitude 3.5 or higher on the Richter Scale or a tidal wave.

1.1.1.2 Additional Work -- New or unforeseen work will be classified as “Additional Work” when City’s Representative determines that it is not covered by the Contract.

1.1.1.3 Applicable Laws -- The laws, statutes, ordinances, rules, codes, regulations, permits, and licenses of any kind, issued by local, state or federal governmental authorities or private authorities with jurisdiction (including utilities), to the extent they apply to the Work.

1.1.1.4 Application for Payment -- The form acceptable to City’s Representative which is to be used by the Contractor during the course of the Work in requesting progress or final payments and which is to be accompanied by such supporting documentation as is required by the Contract Documents.

1.1.1.5 Bridging Documents – The documents prepared or provided by the City to establish the Project’s design intent, performance requirements, and scope parameters. The Bridging Documents include, without limitation, the following:

(i) Supporting Attachment B – Wayfinding and Monument Sign Master Plan;

(ii) Supporting Attachment C – Roadrunner Relocation – Current and Proposed Location; and

(iii) Supporting Attachment D – Desert Gateway Rock Sculpture Relocation – Current and Requested Location.

The Bridging Documents define the minimum requirements of the Project. Contractor shall be responsible for completing the design and construction necessary to deliver a complete and fully functional Project consistent with such requirements, whether or not every detail is expressly shown or specified.

1.1.1.6 Certificate for Payment -- The form signed by City’s Representative attesting to the Contractor’s right to receive payment for certain completed portions of the Work on the Project in accordance with Article 12.

1.1.1.7 Change Order (“CO”) -- A document that authorizes an addition, deletion, or revision in the Work or an adjustment in the Contract Price or the Project Completion Date, issued on or after the Effective Date of the Contract, in accordance with the Contract Documents and in the form contained in the Contract Documents.

1.1.1.8 Change Order Request (“COR”) -- A request made by the Contractor for an adjustment in the Contract Price and/or Project Completion Date as the result of a Contractor-claimed change to the Work.

1.1.1.9 Claim -- A demand or assertion by City or Contractor seeking an adjustment of the Contract Price or Project Completion Date, or both, or other relief with respect to the terms of the Contract. A demand for money or services by a third party is not a Claim.

1.1.1.10 Construction Documents -- The plans and Technical Specifications prepared by the Contractor for the Project and approved by City. The Construction Documents shall set forth in detail all items necessary to complete the construction (other than such details customarily provided by others during construction) of the Project in accordance with the Contract Documents. Following commencement of the Construction Phase, Construction Documents become part of the Contract Documents upon their completion and approval by City. All amendments and modifications to the Construction Documents must be approved by City in writing.

1.1.1.11 Construction Documents Phase – The first phase of the Work and will commence with the issuance of the Notice to Proceed.

1.1.1.12 Construction Phase -- The second phase of the Work and will commence upon final approval of the Construction Documents by City and a Notice to Proceed with Construction.

1.1.1.13 Construction Work -- That portion of the Work on the Project consisting of the provision of labor, materials, furnishings, equipment and services in connection with the construction of the Project as set forth in the Contract Documents.

1.1.1.14 Contract -- The entire integrated written agreement between City and Contractor concerning the Work. “Contract” may be used interchangeably with “Agreement” in the Contract Documents. The Contract supersedes prior negotiations, representations, or agreements, whether written or oral, and includes all Contract Documents.

1.1.1.15 Contract Documents -- The documents listed in Section 1 of the Contract. Some documents provided by City, including but not limited to reports and drawings of subsurface and physical conditions are not Contract Documents.

1.1.1.16 Contract Times -- The number of days or the dates stated in the Contract Documents and Project Schedule to achieve defined Milestones, if any, and to complete the Work so that it is ready for final payment.

1.1.1.17 Critical Supply Shortage -- An unusual shortage in materials that is (a) supported by documented proof that Contractor made every effort to obtain such materials from all available sources; (b) such shortage is due to the fact that such materials are not physically available from single or multiple sources or could have been obtained only at exorbitant prices entirely inconsistent with current and standard rates taking into account the quantities involved and the usual industry practices in obtaining such quantities; and (c) such shortages and the difficulties in obtaining alternate sources of materials could not have been known or anticipated by Contractor at the time it submitted its bid or entered the Contract. Market fluctuations in prices of materials, whether or not resulting from a Force Majeure Event, does not constitute a Critical Supply Shortage.

1.1.1.18 Day - A calendar day of 24 hours measured from midnight to the next midnight.

1.1.1.19 Defective Work -- Work that is unsatisfactory, faulty, or deficient; or that does not conform to the Contract Documents; or that does not meet the requirements of any inspection, reference standard, test, or approval referenced in the Contract Documents.

1.1.1.20 Demobilization – The complete dismantling and removal by the Contractor of all of the Contractor’s temporary facilities, equipment, and personnel at the Site.

1.1.1.21 Contractor -- The individual or entity with which City has contracted for performance of the Work.

1.1.1.22 Contractor Representative -- The person or firm identified as the primary contact person and representative of the Contractor as designated in the Contract and who shall not be changed without prior written consent of City.

1.1.1.23 Design Materials -- Any and all documents, shop drawings, electronic information, including computer programs and computer generated materials, data, plans, drawings, sketches, illustrations, specifications, descriptions, models and other information developed, prepared, furnished, delivered or required to be delivered by, or for, the Contractor: (1) to City under the Contract Documents or; (2) developed or prepared by or for the Contractor specifically to discharge its duties under the Contract Documents.

1.1.1.24 Design Professional -- The individuals or entities who will provide the Contractor with the required architectural, engineering, and other professional services required for the coordinated design of the Project and the administration of construction.

1.1.1.25 Design Work -- The portion of the Work on the Project consisting of the Design services and design deliverables required to be provided in connection with the Design of the Project as set forth in the Contract Documents.

1.1.1.26 Drawings -- The graphic and pictorial portions of the Contract Documents showing the design, location, and dimensions of the Work to be done on the Project, generally including plans, elevations, sections, details, schedules, and diagrams prepared as part of the Design Materials. The Drawings are listed in the List of Drawings.

1.1.1.27 Effective Date of the Contract – The date indicated in the Contract on which it becomes effective, but if no such date is indicated, it means the date on which the Contract is signed and delivered by the last of the two parties to sign and deliver.

1.1.1.28 Force Majeure Event -- An event that materially affects a party’s performance and is one or more of the following: (1) Acts of God or other natural disasters occurring at the Site; (2) terrorism or other acts of a public enemy; (3) orders of governmental authorities (including, without limitation, unreasonable and unforeseeable delay in the issuance of permits or approvals by governmental authorities that are required for the Work); (4) pandemics, epidemics or quarantine restrictions; (5) strikes and other organized labor action occurring at the Site and the effects thereof on the Work, only to the extent such strikes and other organized labor action are beyond the control of Contractor and its Subcontractors, of every Tier, and to the extent the effects thereof cannot be avoided by use of replacement workers; and (6) a Critical Supply Shortage. For purposes of this section, “orders of governmental authorities,” includes ordinances, emergency proclamations and orders, rules to protect the public health, welfare and safety, and other actions of the City in its capacity as a municipal authority.

1.1.1.29 Governmental Approvals -- Those governmental actions required to be obtained by City and necessary for the completion of the Project.

1.1.1.30 Hazardous Materials – Any substance: the presence of which requires investigation or remediation under any federal, state or local law, statute, regulation, ordinance, order, action, policy, or common law; which is or becomes defined as a "hazardous waste," "hazardous substance," pollutant, or contaminant under any federal, state or local law, statute, regulation, rule or ordinance, or amendments thereto, including, without limitations, the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ("CERCLA"), as amended, or the Resource, Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 et seq. ("RCRA"); which is petroleum, including crude oil or any fraction thereof not otherwise designated as a “hazardous substance” under CERCLA including, without limitation, gasoline, diesel fuel, or other petroleum hydrocarbons; which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic, or otherwise hazardous and is or becomes regulated by any regulatory City or instrumentality or the United States; the presence of which on the Site causes or threatens to cause a nuisance upon the Site or to the adjacent properties or poses or threatens to pose a hazard to the health or safety of persons on or about the Site; the presence of which on adjacent properties could constitute a trespass by the Contractor or the City; or as defined in the California Health and Safety Code. For the purposes of this Contract, “Hazardous Materials” shall also include, but are not limited to, “Underground Storage Tanks.” "Underground Storage Tank" shall have the definition assigned to that term by Section 9001 of RCRA, 42 U.S.C. Section 6991, and also shall include: any tank of one thousand one hundred (1,100) gallons or less capacity used for storing motor fuel; any tank used for storing heating oil for consumption on the premises where stored; any septic tank; and any pipes connected to the above items.

1.1.1.31 Holidays -- Holidays occur on:

New Year’s Day - January 1 Martin Luther King Jr. Day – Third Monday of January President’s Day – Third Monday of February Memorial Day - Last Monday in May Independence Day - July 4 Labor Day - First Monday in September Veteran’s Day - November 11 Thanksgiving Day - Fourth Thursday in November Friday after Thanksgiving Christmas Eve – December 24 Christmas Day – December 25 If any Holiday listed above falls on a Saturday, Saturday and the preceding Friday are both Holidays. If the Holiday should fall on a Sunday, Sunday and the following Monday are both Holidays.

1.1.1.32 Liens – Charges, security interests, or encumbrances upon Project funds, or personal property, including without limitation Stop Payment Notices.

1.1.1.33 Milestones – A principal event specified in the Contract Documents associated with a required completion date or time prior to Completion of all the Work. Failure to achieve Milestones may result in Liquidated Damages as described in the Contract Documents.

1.1.1.34 Notice of Award – The written notice by City to the Contractor stating that upon timely compliance by the Contractor with the conditions precedent listed therein, City will sign and deliver the Contract.

1.1.1.35 Notice of Completion – The form which may be executed by City and recorded by the county where the Project is located constituting final acceptance of the Project.

1.1.1.36 Notice to Proceed -- A written notice given by City to the Contractor fixing the date on which the Contractor may proceed with the Work and when Contract Time will commence to run.

1.1.1.37 Partial Utilization – Use by City of a substantially completed part of the Work prior to Completion of all the Work.

1.1.1.38 Performance Specifications -- That part of the Contract Documents consisting of written requirements for materials, equipment, systems, standards and workmanship as applied to the Work, and certain administrative requirements and procedural matters applicable thereto included within the Bridging Documents.

1.1.1.39 Project -- The total design and construction of which the Work performed under the Contract Documents may be the whole, or a part, and which may include separate design or construction work performed by City or by Separate Contractors for the Project.

1.1.1.40 Project Completion Date -- The date by which the Contractor agrees that all Work described in the Contract Documents shall be completed. The Project Completion Date is set forth in the Contract.

1.1.1.41 Project Schedule -- The graphical representation of a practical plan to complete the Work on the Project within the Project Completion Date and other Contract Times. The detailed requirements for the Project Schedule are stated in Article 6.

1.1.1.42 Proposal -- The proposal submitted by the Contractor in response to the Request for Proposal for this Project.

1.1.1.43 Request for Proposal (“RFP”) -- The request for proposal issued by City for the Project and includes all documents, exhibits, attachments, and addenda thereto.

1.1.1.44 Samples -- Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged.

1.1.1.45 Separate Contractor -- A person, or firm, under separate contract with City performing other work at the Project site which may affect the Work.

1.1.1.46 Shop Drawings -- All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to illustrate some portion of the Work.

1.1.1.47 Site -- Lands or areas indicated in the Contract Documents as being furnished by City upon which the Work is to be performed, including rights-of-way and easements for access thereto, and such other lands furnished by City which are designated for the use of Contractor.

1.1.1.48 Stop Payment Notice -- A written notice as defined in Civil Code section 8044.

1.1.1.49 Subcontractor – An individual or entity that has a contract with the Contractor or with a Subcontractor of the Contractor to perform a portion of the Work on the Project. Unless otherwise specifically provided, the term Subcontractor includes Subcontractors of all tiers.

1.1.1.50 Submittal - Written or graphic information and physical samples prepared and supplied by the Contractor demonstrating various portions of the Work.

1.1.1.51 Supplier -- A manufacturer, fabricator, supplier, distributor, material man, or vendor having a direct contract with Contractor or with any Subcontractor to furnish materials or equipment used in the performance of the Work or to be incorporated in the Work.\

1.1.1.52 Technical Specifications – All documents developed by the Contractor and which are ready for final construction.

1.1.1.53 Tier -- The contractual level of a Subcontractor or supplier or consultant with respect to the Contractor. For example, a first tier Subcontractor is under subcontract with the Contractor, a second tier Subcontractor is under subcontract with a first tier Subcontractor, and so forth.

1.1.1.54 Underground Facilities – Pipes, pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels, and other similar underground structures or utilities, including appurtenances, used for conveying or storing water, sewer, storm drainage, gas, oil, electricity, telecommunications, or other utilities.

1.1.1.55 Warranty -- A written guarantee provided to City by the Contractor that the Work remain free of defects and suitable for its intended use for the period required by the Contract Documents or the longest period permitted by the law of this State, whichever is longer.

1.1.1.56 Work -- The entire design and construction, or the various separately identifiable parts thereof, required to be provided under the Contract Documents. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such design and construction, and furnishing, installing, and incorporating all materials and equipment into such design and construction, all as required by the Contract Documents.

1.2 Terminology.

1.2.1 The words and terms below are not defined but, when used in the Contract Documents, have the indicated meaning.

1.2.1.1 The word “furnish,” when used in connection with services, materials, or equipment, shall mean to supply and deliver said services, materials, or equipment to the Project site (or some other specified location) ready for use or installation and in usable or operable condition.

1.2.1.2 The word “install,” when used in connection with services, materials, or equipment, shall mean to put into use or place in final position said services, materials, or equipment complete and ready for intended use.

1.2.1.3 The words “perform” or “provide,” when used in connection with services, materials, or equipment, shall mean to furnish and install said services, materials, or equipment complete and ready for intended use.

1.2.1.4 Regardless of whether “furnish,” “install,” “perform,” or “provide” is used in connection with services, materials, or equipment, an obligation of Contractor is implied.

1.2.1.5 Unless stated otherwise in the Contract Documents, words or phrases that have a well-known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning.

2. CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE

2.1 Intent.

2.1.1. The Contract Documents are complementary; what is required by one is as binding as if required by all. It is the intent of the Contract Documents to describe a functionally complete Project (or part thereof) to be designed and…