Final_Model_Contract_RFQ-036-3075805-JM.pdf

County of Orange, OC Public Works RFQ – 036-3075802-JM Progressive Design Build for New Emergency Operation Center

MODEL CONTRACT

Model Contract for New Emergency Operation Center

RFQ 036-3075805-JM

This Contract is made and entered into the TBD day of TBD, 20XX, by and between the County of Orange (“County”) and TBD , (“DBE”) with County and DBEDBE sometimes individually referred to as “Party” or collectively referred to as “Parties”.

County and DBE agree as follows:

1. CONTRACT DOCUMENTS

Contract Documents, which together comprise the complete Contract between County and DBE, consist of the following: the RFQ, all attachments, and other bid documents; this Contract; the General Conditions; Supplementary General Conditions (if applicable); Addenda and Bulletins;

Attachments; Appendices; Plans; and Specifications mentioned in any Contract Documents; and all modifications and amendments to the foregoing issued after the date of execution of the Contract, including Amendments and Change Orders. The Contract Documents also include a Faithful Performance Bond and the Labor and Material Payment Bond corresponding with each GMP. The Contract Documents are complementary, and what is called for by anyone shall be as binding as if called for by all.

2. SCOPE OF WORK

DBE shall perform all work as required by, and in strict accordance with, the Contract Documents and as indicated in Attachment A – “Progressive Design-Build Entity Scope of Work” (Project).

3. CONTRACT PRICE, CONTINGENCY AND CONTRACT TIME

3.1 PROJECT BUDGET

The County’s Guaranteed Maximum Price (GMP) Budget for the Project is the sum of all potential Phase 1 and Phase 2 amendments with the DBE and excludes other costs to be incurred by the County outside of this Contract.

Once Phase 1 fees and potential Phase 2 fees are determined, the DBE shall establish a Direct Construction Cost Target Budget (Target Budget) that shall be used as the “design-to” budget, which shall include design contingency, escalation, and any other potential costs to ensure that all design decisions are adequately validated prior to inclusion in the design documents. This Target Budget shall be stated on the first page of the Basis of Design (BOD) document produced by the DBE early in Phase 1. The DBE agrees to develop the design and propose solutions consistent with delivering the Project within this Target Budget. If at any time the DBE’s cost estimates exceed the County’s GMP Budget, the DBE shall promptly notify the County and, in consultation with the County, recommend value engineering or scope adjustments to bring the Project back within budget.

3.2 INITIAL CONTRACT PRICE

DBE shall perform all work required by the Contract Documents within the maximum Initial Contract Price indicated in Attachment B for Design Services and Pre-Construction Phase (as defined below), as it may be adjusted pursuant to the “Changes” Section of the General Conditions, and in accordance with the “Payments” Section of the General Conditions. The Initial Contract Price will include 80% to the agreed Phase 1 fees. The remining 20% will be included in the Phase 2 GMP amendment, if awarded, to compensate for the remaining design and preconstruction activities, such as final plan detailing, plan review corrections, subcontracting, etc. The sum of all Guaranteed Maximum Prices (GMP) submittals (as defined below) shall not exceed the Project Budget.

3.3 ALLOWANCE

DBE and County Allowances may be included in the GMP. Allowances are different than

Contingency, as allowances are used to fund known costs that are unable to be reasonably quantified at the time of GMP, whereas Contingency is intended to cover potential costs that are unknowable at the time of GMP.

“County Allowance” is a portion of the Contract Price to be used for items selected by the County for direct cost items that the County intends on including in the project but may not be able define or quantify to the extent that competitive bids can be obtained for the work. The County is responsible for determining the amount of these allowances and is responsible for any overruns. An example of a County Allowance could be for wayfinding signage as an analysis of the type, quantity, and location of these items may not be completed at the time of the GMP submission.

“DBE Allowance” is a portion of the Contract Price to be used for items required to complete the project but are unable to be reasonably quantified at the time of GMP, such as removal of unsuitable soils that are only discoverable during excavation (if comprehensive invasive investigation was not performed or desired to be performed during phase 1, such as boring). DBE allowances are different from County Allowances in that they are intended to cover foreseeable costs that are possible to be incurred for items that are not under the direct control of the County. These allowances are not intended to be another Contractor Contingency and are subject to County approval prior to inclusion in the GMP. Excessive allowances will not be allowed and may require the DBE to further define the work to limit the quantity or magnitude of DBE allowances before a GMP can be issued. The DBE is responsible for determining the amount of these allowances and is responsible for any overruns.

Use of allowances shall be pre-approved in writing prior to incurring any costs and may be authorized as lump sums based on substantive back-up prior to performance of the work and/or time and material to be reconciled after completion of the work, at the discretion of the County. Allowances may only be used for their discrete purpose, and any unused amounts shall be returned to the County in a credit change order in a timely manner after the activities covered by the allowances have been completed.

For example, any remaining DBE Allowance for unsuitable soils shall be returned shortly after grading and foundation activities have been completed. The County may add these funds to their contingency and/or use them for any other purpose at the County’s discretion.

Failure to notify the County and receive written approval for allowance expenditures prior to incurring the costs waives the DBE’s entitlement to be reimbursed for these costs.

3.4 CONTINGENCY

“DBE’s Contingency” means a fund to cover cost growth during the Project used at the discretion of the DBE usually for costs that result from Project circumstances. The amount of the DBE’s Contingency will be a separate line item in the GMP package. Use and management of the DBE’s Contingency during the construction phase is as described here-in. Any DBE’s Contingency not utilized shall be shared equally between the County and DBE after Project completion as part of final financial reconciliation. No shared savings shall be distributed until all other costs, withheld amounts, liquidated damages, and/or penalties are finalized.

DBE’s Contingency is an amount the DBE shall use under the following conditions:

1) at its discretion for increases in the Contract Price which are not the County’s responsibility; or,

2) for increases in General Condition Costs that are not otherwise compensable by this Contract; or,

3) overtime as required maintain the current completion date in the event the project incurs non-compensable delays.

“County’s Contingency” means a fund to cover cost growth during the Project used at the discretion of the County usually for costs that result from County directed changes or unforeseeable (not unforeseen) site conditions that could not have been discovered during any site investigation activities performed during Phase 1. The amount of the County’s Contingency will be set by the County and will be in addition to the project costs included in the DBE’s GMP package. Markups will be applied by the DBE at the time that County’s Contingency is used.

Use of all Contingencies shall be pre-approved in writing prior to incurring any costs and may be authorized in lump sums based on substantive back-up prior to performance of the work and/or time and material to be reconciled after completion of the work.

Contingency shall not be used for overtime to make up for self-incurred delays and subcontractors shall be responsible to bear the cost of overtime of other contractors that may have been delayed by late delivery of their work. The DBE shall administer back charges as appropriate to cover self-incurred or subcontractor incurred acceleration expenses.

Failure to notify the County and receive written approval for Contingency expenditures prior to incurring the costs waives the DBE’s entitlement to be reimbursed for these costs.

3.5 CONTRACT TIME

Within 10 calendar days of the Board of Supervisors’ award of the Contract, DBE shall submit to County for its review of bonds (as detailed below); proof of insurance; and initial job Design and Construction Critical Path schedule. If County rejects the submitted documents, DBE will have five

(5) additional calendar days to resubmit. If DBE fails to submit documents within the required time(s), the Contract Time (as defined below) will be reduced by the number of days which exceed the time for submittal. If DBE fails to submit acceptable documents by the second submission, County may, at its sole discretion, reduce the Contract Time by the number of days between County’s rejection of the second submission and County’s approval of the documents.

Upon County’s approval of the bonds, insurance, and initial job Design and Construction Critical Path schedule, County will deliver to DBE a signed copy of the Contract and a Notice to Proceed (NTP) for GMP 1 – Design Services and Preconstruction Phase. DBE shall not commence design until the County issues a Phase 1 NTP. DBE shall complete all work required by the Contract within the number of calendar days indicated on Attachment B starting on the effective date of the Phase 1 NTP (“Contract Time”). The Phase 1 NTP starts the duration for the entire project, not just Phase 1 services.

A Phase 2 NTP will be executed after the Phase 2 GMP is executed, a permit is issued, and all other deliverables have been approved as required to mobilize to start construction. The Phase 2 NTP will reference the same completion date as indicated in the Phase 1 NTP along with the number of days remaining until the previously agreed upon contract completion date. Late completion of Phase 1 does not entitle a time extension and the DBE will be responsible to complete Phase 2 within the remaining contract duration as required to complete the project by the completion date indicated in the Phase 1 NTP.

The Certificate of Acceptance (not the Notice of Completion) will be issued by the County to memorialize the date that the DBE has completed all contractual obligations to the satisfaction of the County.

The Contract Time includes calendar days due to weather necessitating stoppage of work as indicated in Attachment B. A time extension due to rain or other adverse weather conditions will only be granted in accordance with the “Delays Due to Weather and Force Majeure” Section of the General Conditions.

The County will not be responsible for the failure of the DBE to plan, schedule, and execute the work in accordance with the approved schedule or the failure of the DBE to meet the Contract completion dates or the failure of the DBE to schedule and coordinate the work of his Architect and Engineers, own trades and sub-contractors or to coordinate with others separate DBEs.

Design and Construction Critical Path Schedule:

After receipt of the Contract Notice to Proceed (NTP) for GMP 1 the DBE shall initiate design, comply with all design submission requirements as covered under General Conditions, and obtain County review of each submission. The Design and Construction Critical Path schedule shall contain separate GMPs. GMP 1 for Phase 1 shall include Design and Pre-Construction Services. Remaining GMP(s) shall include Construction Phase Services, construction work and any other additional work.

DBE may propose additional GMPs to County if determined necessary. The DBE may begin construction on portions of the work for which the County has reviewed the GMP submission and has issued the related NTP. Work may never progress beyond the work specifically authorized in each NTP.

Design and Construction Critical Path schedule shall include submission dates for all GMPs. The GMP submission dates cannot be changed without County concurrence. Once received the County will coordinate with the DBE to assemble any other supporting documents that may be needed for board approval. DBE to coordinate with County to add a conservative duration for board approval and/or GMP revisions commensurate with the size and complexity of the project which shall be included in the Phase 1 schedule. GMP submission may be as early as 100% SDs or as late as 60% CDs. DBE to coordinate the GMP submittal timing with the County that is in the best interest of the project taking into consideration project complexity, level of detail required to receive accurate bids, and overall schedule certainty/achievability. Fast track projects may require and earlier GMP date and complex projects may require a later GMP date.

4. LIQUIDATED DAMAGES

In accordance with Government Code Section 53069.85, DBE agrees to forfeit and pay to County pay (“Liquidated Damages”) for the amount indicated in Attachment B, for each calendar day that Certificate of Acceptance is delayed beyond the Contract Time, as may be adjusted by Change Order.

County may deduct such sum from any payments due to or to become due to DBE. The County may start withholding payments if at any time the estimated amount of Liquidated Damages is anticipated to exceed the remaining contract balance based on a reasonable analysis of the estimated actual contract completion date. If the Liquidated Damages exceed the unpaid balance of the Contract Price otherwise owed to DBE, then DBE shall immediately pay County the difference.

At the County’s discretion, and only if explicitly indicated in the executed agreement, may elect to reduce liquidated damages incurred at Certificate of Acceptance based on timely completion of other critical milestones such as Temporary Certificate of Occupancy, Certificate of Occupancy, and/or any other milestone(s) that are determined to be in the best interest of the project.

The Parties agree the daily amount set forth herein is a reasonable pre‑estimate of County’s actual damages and is not a penalty that can be requested to be “waived.”

5. EMPLOYEE ELIGIBILITY VERIFICATION

DBE hereby certifies that it complies with all applicable laws and regulations regarding the eligibility of its employees to work in the United States, and that all of its employees performing work under this Contract meet all citizenship or immigration status requirements to do so. DBE shall obtain all documentation necessary to verify the employment eligibility status of covered employees as described by U.S. Citizenship and Immigration Services Form I-9. DBE shall retain such documentation for the period prescribed by law. DBE shall indemnify, defend with counsel approved in writing by County, and hold harmless the County, its agents, officers, and employees from any sanctions or liability that may be assessed in connection with any alleged violation of federal or State laws or regulations pertaining to the eligibility for employment of any persons performing work under this Contract.

6. SECURING WORKERS’ COMPENSATION INSURANCE CERTIFICATION

DBE, by executing this Contract, hereby certifies:

“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.”

7. ACCEPTANCE OF GMP

The DBE is required to submit a GMP that is equal to or less than the allowable GMP Budget established in the Phase 1 Agreement. A GMP in excess of the budget is considered non-responsive and will not be accepted. Upon successful negotiation of a GMP for Phase 2, the Parties shall execute a Contract Amendment for Phase 2 services to memorialize the agreed Contract Price (GMP), Contract Time for construction, and any specific terms for the construction phase. The Phase 2 Amendment will include the remaining percentage of design and pre-construction services (as indicated in Attachment B), in addition to all construction related costs which are to be broken down into the following categories:

1) Trade package costs

2) General Requirements (allowance)

3) DBE Allowance(s)

4) County Allowance(s)

5) DBE Contingency

6) General Conditions (Site Management Fee)

7) Overhead & Profit (Includes Bonds & Insurance)

These costs will be memorialized on an amended Attachment B which will include the sum of the initially awarded Phase 1 costs along with the above Phase 2 costs.

If the County and DBE cannot reach agreement on a GMP for Phase 2 by a specified point (e.g.

after DBE’s GMP proposal and negotiations), the County may decline to proceed with Phase 2. In such case, the Contract may be terminated for convenience by County and the DBE shall only be compensated for all Phase 1 services performed up to that point (not to exceed the agreed Phase 1 amount). The DBE shall not be entitled to any profit on work not executed. By signing this agreement, the DBE waives any and all claims related to the non-issuance of a Phase 2 agreement regardless of causation or party at fault.

All documents produced during Phase 1 and Phase 2 are the property of the County and must be transmitted to the County upon termination. The County may use the documents in any manner they choose including bidding them out to other contractors.

8. PARTIES’ REPRESENTATIVES

For Contractor:

DBE’s Name.

DBE’s Address City, State Zip Code Attn: TBD Phone: TBD E-mail: TBD

For County:

Agency/Department Agency Address City, State Zip Code Attn: TBD, Project Manager cc:

OC Public Works Procurement Services 601 North Ross Street Santa Ana, CA 92703 Attn: TBD

8.1 COUNTY’S REPRESENTATIVES

8.1.1 OC Public Works: The Project is under the general direction of County’s Board of Supervisors. The Board of Supervisors authorizes OC Public Works to be County’s representative in connection with the Project.

8.1.2 Design and Construction Representative: The Design and Construction Representative shall be the County’s Project Manager (“PM”), unless OC Public Works designates in writing an alternate person who will act as County's representative during design and construction of the Project. Unless otherwise expressly stated in the Contract Documents, County's designated representative will issue and receive all written communications on behalf of County for the Project. The designated representative shall also coordinate any communications to or from County’s PM in connection with the Project.

8.1.3 County’s Project Manager: County’s Project Manager is the County’s exclusive contact agent to the DBE with respect to this Project during design and construction and until the completion of the Project. The County’s communications with the DBE shall be exclusively through the County’s Project Manager.

8.2 COUNTY

8.2.1 County has the final authority in all matters affecting the work. County has the authority to enforce DBE’s compliance with the Contract Documents. County’s decision is final and binding on all questions relating to design documents and requirements; quantities; acceptability of material, equipment, or work; execution, progress, or sequence of work; and interpretation of the Contract Documents. All labor, materials, tools, equipment furnished by DBE and all work performed by DBE shall be subject to the approval of County.

8.2.2 The County shall not be responsible for or have control or charge of the construction means, methods, techniques, sequences, or procedures, or for safety precautions and programs in connection with the work, and will not be responsible for the DBE's failure to carry out the work in accordance with the Contract Documents.

8.2.3 The County will not be responsible for the acts or omissions of the DBE, or any subcontractor, or any DBE's or subcontractor's agents or employees, or any other persons performing any of the work.

8.3 DBE’S REPRESENTATIVES

8.3.1 Representative and Alternate: Before starting work, DBE shall designate in writing a representative who shall have complete authority to act for it. The representative shall be the same as proposed during original Request for Proposal selection process. DBE may also designate an alternate representative (also as identified during original Request for Proposal selection process) with complete authority to act for it. County may rely on such representative or alternate as having the authority to execute Change Orders in any amount unless DBE identifies to County in writing the officer(s) or employee(s) with such authority. Any order or communication given to this representative shall be deemed delivered to DBE. In the absence of DBE’s representative, instructions or directions may be given by County to the project manager or superintendent. Such order shall be complied with promptly and referred to DBE or its representative. DBE’s representative and alternate must be able to read, write, and speak English fluently.

8.3.2 DBE’s Project Manager: DBE shall provide the services of a Project Manager, as proposed during original Request for Proposal selection process. DBE’s Project Manager, if different than designated representative, shall represent DBE in the absence of DBE’s designated representative or alternate, and all directions given to this Project Manager shall be binding as if given to DBE. County may require DBE to replace its Project Manager whose conduct or performance is unsatisfactory.

DBE shall not change its Project Manager without County’s consent unless the Project Manager is unsatisfactory to DBE or ceases to be in DBE's employ. If DBE’s Project Manager leaves the Project, DBE shall replace him or her within 24 hours (unless additional time is agreed upon by County) with a new, well-qualified Project Manager acceptable to County.

8.3.3 Architect-Engineer: DBE shall designate in writing a representative who shall be responsible for all Architect-Engineer (A-E) services, as required by law, and is registered by the State of California for the practice of specialized A-E services per the attached Program Requirements.

8.3.4 Superintendent(s): DBE shall provide the services of the superintendent(s) as proposed during original Request for Proposal selection process. A superintendent shall be present at the work site whenever work is in progress including whenever weather conditions necessitate its presence to take measures necessary to protect the work, persons, or property. DBE’s superintendent shall represent DBE in the absence of DBE’s designated representative, alternate or project manager, and all directions given to the superintendent(s) shall be binding as if given to DBE. The superintendent must read, write, and speak English fluently. County may require DBE to replace a superintendent whose conduct or performance is unsatisfactory. DBE shall not change its superintendent without County’s consent unless the superintendent is unsatisfactory to DBE or ceases to be in DBE's employ.

If DBE’s superintendent leaves the Project, DBE shall replace him or her within 24 hours (unless additional time is agreed upon by County) with a new, well-qualified superintendent acceptable to County.

8.3.5 Emergency Contacts: DBE shall provide County with a list of names and telephone numbers at which DBE’s representative, alternate, superintendent, and other key personnel can be reached during non-working hours in the case of an emergency.

9. GOVERNING LAW AND VENUE – CODE OF CIVIL PROCEDURE SECTION 394

This Contract has been negotiated and executed in the State of California and shall be governed by and construed under the laws of the State of California. In the event of any legal action to enforce or interpret this Contract, the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California, and the parties hereto agree to and hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure Section 394.

The parties specifically agree that by soliciting and entering into and performing services under this Contract, the DBE shall be deemed to constitute doing business within Orange County from the time of solicitation of work, through the period when all work under this Contract is completed and continuing until the expiration of any applicable limitations period. Furthermore, the parties have specifically agreed, as part of the consideration given and received for entering this Contract, to waive any and all rights to request that an action be transferred for trial to another county under Code of Civil Procedure Section 394.

10. SIGNATURE REQUIREMENTS

The Contract must be signed by officer(s) authorized to bind DBE. If documentation demonstrating express authority is not provided, then the Contract must be signed by those officers with apparent authority to bind DBE. If DBE is a corporation, such signatures must comply with Corporations Code Section 313, as follows:

1) The document must be signed by two (2) people. One of them must be the Chairman of the

Board, the President, or any Vice-President. The other must be the Secretary, any Assistant Secretary, the Chief Financial Officer, or any Assistant Treasurer.

2) One (1) corporate officer may sign the document, providing that written evidence of the officer’s authority to bind the corporation with only his or her signature must be provided.

This evidence would ideally be a Corporate Resolution.

11. ENTIRE CONTRACT

The Contract Documents represent the entire and integrated agreement between County and DBE and supersede all prior representations, statements, or agreements concerning the subject matter of this Contract, whether verbal or written.

GENERAL CONDITIONS

1. DEFINITIONS

As used in the Contract Documents, the following terms shall have the following definitions:

Term Definition “day” Unless otherwise specified within the Contract Documents, all references to any “day” or number of “days” shall mean consecutive calendar days (including all holidays and weekends).

“working day” Any day within the period between the date of the Notice to Proceed and County’s acceptance of the work, except Saturday; Sunday; or any day designated as a holiday by County. Notwithstanding the foregoing, any day will be treated as a working day if the Contract Documents require that it be so treated, or DBE with County’s approval elects to work on such day.

Abbreviations The language of specifications and other Contract Documents is of the abbreviated type in certain instances, and implies words and meanings appropriately interpreted. Singular words will be interpreted as plural and plural words will be interpreted as singular where applicable and where full context of the Contract so indicates.

Addendum/Addenda Written or graphic instrument issued prior to the opening of Bids which corrects or changes the Contract Documents.

DBE Allowance “DBE Allowance” is a portion of the Contract Price to be used for items required to complete the project, but are unable to be reasonably quantified at the time of GMP, such as removal of unsuitable soils that are only discoverable during excavation. The DBE is responsible for determining the amount of these allowances and is responsible for any overruns.

County Allowance “County Allowance” is a portion of the Contract Price to be used for items to be chosen directly by the County installed as part of the Work within the specified GMP. The County is responsible for determining the amount of this allowance and is responsible for any overruns. This is different than County Contingency as this allowance is used to fund known costs that are unable to be quantified at the time of GMP, whereas County Contingency is to cover costs that are unknown at the time of GMP.

Amendment A written instrument issued after execution of the Contract Documents signed by the County and DBE, stating their Contract upon all of the following: the addition, deletion or revision in the scope of services or Deliverables; the amount of the adjustment to the Contract Amount;

the extent of the adjustment to the Contract Time; or modifications of other Contract terms.

Application for Payment DBE’s periodic or one-time claim for payment based on work completed.

Architect-Engineer (A-E) DBEs Architect or Engineer of Record for the Project, hired to provide A-E services.

Approve Where used in conjunction with the Architect or Engineer’s response to submittals, requests, applications, inquiries, reports and claims by the DBE, the meaning of the term “approved” will be held to limitations of the Architect or Engineer’s responsibilities and duties as specified in General Conditions. In no case, will “approved” by the Architect or Engineer be interpreted as a release of the DBE from responsibilities to fulfill requirements of the Contract, nor as any modification to those requirements.

Board of Supervisors County’s governing body.

Bulletin Written or graphic instrument issued prior to the opening of Bids which clarifies or answers general questions about the Contract Documents.

CCR California Code of Regulations.

Certificate of Acceptance The document issued by the County to the DBE once the County believes that the DBE has full filled all contract requirements, inclusive of post-construction deliverables and financial closeout.

Certificate of Occupancy A certificate, or equivalent, issued by a local building department that indicates that the development [or tenant] may occupy

Change Order A modification of the Contract as provided by the “Changes” Section of the General Conditions.

Change Order Request County’s request for DBE to provide a proposal and price/time quote for County’s desired Change Order, or County’s description of work to be performed pursuant to DBE’s Request for Change.

Changed Conditions Site conditions or materials of an unexpected nature or differing from those represented in the Contract Documents as provided by the “Changes” Section of the General Conditions.

Code Sections Except where otherwise specified, all statutory references (e.g. “Labor Code” or “Public Contract Code”) shall mean those laws enacted by the State of California, as they may be amended.

Construction Schedule DBE’s initial construction schedule after it has been accepted by County and designated as the Project Construction Schedule and updated by each monthly schedule update.

County’s Contingency A fund to cover cost growth during the Project used at the discretion of the County usually for costs that result from County directed changes or unforeseen site conditions. The amount of the County’s Contingency will be set by the County and will be in addition to the project costs included in the DBE’s GMP packages. Use and management of the County’s Contingency during the construction phase is described in Section 3.2.

DBE’s Contingency A fund to cover cost growth during the Project used at the discretion of the DBE usually for costs that result from Project circumstances.

Contract The portion of the Contract Documents, signed by both Parties, that contains the Project name, Contract Price, Contract Time, Liquidated Damages, and other terms and conditions.

Contract Price The total dollar amount of the Contract identified in the “Contract Price and Time” Section of the Agreement as it may be adjusted in accordance with the “Changes” Section of the General Conditions.

Contract Time The number of calendar days specified in the “Contract Price And

Time” Section of the Agreement that DBE has to complete the work after the issuance of a Notice to Proceed for GMP 1, as it may be adjusted in accordance with the “Changes” Section of the General Conditions.

County The County of Orange, a political subdivision of the State of California, and its representatives, alternate designation, County, a body corporate and public.

Design & Construction Critical Path Schedule

Critical Path Schedule means the sequence of activities from the start of the Work to the Substantial Completion of the Project. Any delay in the completion of these activities will extend the Substantial Completion date.

Defective Work DBE’s performance that does not conform to the requirements of the Contract Documents, industry standards, manufacturers’ recommendations, or requirements of the “Quality of Materials and Workmanship” Section of the General Conditions.

Progressive Design-Build Entity

“Progressive Design-Build Entity” (DBE), is used in the Public Contract Code section 20133(c)(3) to describe the partnership, corporation, or other legal entity that is able to provide appropriately licensed contracting, architectural, and engineering services as needed pursuant to a progressive design-build contract.

Director Except where otherwise provided, references to “Director” shall mean the Director of OC Public Works or his or her designee.

Directed, Requested, etc.: Where not otherwise explained, terms such as “directed,” “requested,” “authorized,” “selected,” “approved,” “required,” “accepted,” and “permitted” mean “directed by A-E,” “requested by A-E,” “requested by A-E,” and similar phrases. However, no such implied meaning will be interpreted to extend A-E’s responsibility into the DBEs area of construction responsibility.

Dust Control Plan DBE’s plan for compliance with County’s Fugitive Dust Emission Control Plan in conformance with the SCAQMD Rule 403 (See the “Performance” Section of the General Conditions.)

Emergency/Contingency Plan

DBE’s provisions for handling spills of hazardous, liquid, or nuisance materials prepared in accordance with the “Hazardous Or Contaminated Materials” subsection of the “Performance” Section of the General Conditions.

Engineer or Architect of Record

The California-registered architect or engineer in responsible charge for the design of the Project and whose seal appears on the Plans and Special Provisions.

Final Payment The last and complete payment by County to DBE under the Contract as provided by the “Payments” Section of the General Conditions.

General Conditions The portion of the Contract Documents setting forth various conditions and requirements of the Contract.

General Requirements The portion of the Contract Documents setting forth various conditions and requirements of the Contract.

GMP Guaranteed Maximum Price.

GMP Item An item of work or task listed in the GMP Schedule including the description, quantity (where applicable), and unit cost.

GMP Item, Deletable A GMP Item that is considered part of the GMP but which may or may not be deleted from the Contract Price at any time prior to completion of the work.

GMP Proposal A GMP Proposal is an offer made by the DBE to the County in accordance with the Instruction to Respondents.

GMP Schedule The detailed list of items of work with associated quantities, prices, and type of cost, submitted with each GMP.

Health and Safety Plan

(H&SP)

DBE’s detailed provisions for compliance with all applicable health and safety laws, orders and regulations. (See the “Performance” Section of the General Conditions.)

Liquidated Damages Damages specified in the “Liquidated Damages” Section of the Agreement, payable to County for DBE’s failure to complete the work within the Contract Time.

Lump Sum (LS) “Lump Sum”, “L.S.”, or “Job” prices are paid according to a flat total for all labor, materials, overhead, and other costs associated with the work item. (See the “Payments” Section of the General Conditions.)

Manifests Required documents that identify the generator, transporter, disposal facility and type of hazardous material(s). Manifests include but are not limited to: documents entitled Uniform Hazardous Waste Manifest(s), Bills of lading, or similar documentation concerning the handling, transportation, and disposal of materials (See the “Hazardous Or Contaminated Materials” subsection of the “Performance” Section of the General Conditions).

Notice of Completion The document that may be recorded by County in accordance with Civil Code Section 8182 after completion of the work. NOC does not represent any representation of acceptance of the work.

Notice of Termination County’s notice to DBE specifying the effective date of a termination of the Contract (in whole or in part), as provided by the “Termination for Convenience of County “Section of the General Conditions.

Offsite Costs “Offsite Costs” means the actual costs incurred for the following:

work in public right-of-way; utility extension and realignment costs;

impact fees.

OCPW Orange County Public Works, A County of Orange Agency/Department

Partial Occupancy Approval by the Authority Having Jurisdiction (AHJ) for occupation of a portion of the project by the County for Staff & Stock or any other use prior to final Occupancy of the entire project.

Party / Parties The County and/or DBE.

Plans The drawings, profiles, cross sections, standard plans, working drawings, and shop drawings, or reproductions thereof, approved by County, which show the location, character, dimensions, or details of the Project.

Project All work performed by DBE as required by, and in strict accordance with, the Contract Documents.

Project Manager (PM) The County or DBE representative identified in the Contract Documents or otherwise specified by County or DBE in writing.

Request for Change DBE’s request that County issue a Change Order.

Retention The amount of progress payments withheld by County as security for

DBE’s complete and proper performance of the Contract as provided by the “Payments” Section of the General Conditions.

Retention Payment Payment of the Retention in accordance with Public Contract Code 7107 and the “Retention Payment” Section of the General Conditions.

Schedule of Values Detailed breakdown by discipline or unit prices and costs as defined for the project in the Schedule of Values in the Construction Agreement and its General Conditions, as attached hereto.

Schedule Update(s) DBE’s monthly update of work progress. (See the “Project Schedules” and “Payments” Sections of the General Conditions.)

Special Provisions The portion of the Contract Documents describing the specific requirements of the Project, which may include additions and revisions to the Standard Specifications setting forth conditions and requirements peculiar to the Project.

Standard Specifications The Standard Specifications for Public Works Construction (SSPWC), known as the “Greenbook,” 2021 Edition, Parts 2 through 5, including any supplements effective as of the time Proposals are due.

Subcontractor(s) Trade Contractors independently engaged by DBE to perform portions of the work.

Submittals Items that the Contract Documents require DBE to submit to County after award of the Contract and issuance of the Notice to Proceed, as provided by the “Submittals” Section of the General Conditions.

Supplementary General Conditions

The portion of the Contract Documents identified describing additions and revisions to the General Conditions setting forth conditions and requirements peculiar to the Project.

Temporary Certificate of Occupancy

A certificate, or equivalent, issued by a local building department that indicates that the development [or tenant] may occupy part of a project and/or occupancy approval for a limited duration as specified on the document issued by the AHJ(s).

Traffic Control Plan (TCP) DBE’s provisions for coordination of its traffic at the Project site. (See the “Performance” Section of the General Conditions.)

Unilateral Change Order A Change Order issued by the County where County and DBE cannot reach an agreement on a proposed modification to the Contract.

2. A-E STATUS

Unless otherwise expressly stated in the Contract between DBE and the County, the DBE is responsible to the County for the preparation of adequate drawings, specifications, and reports within the scope of the contract. A-E services normally include checking of shop drawings, equipment submittals and material lists; recommendations to the County regarding proposed substitutions;

furnishing consultation and advice to the County to clarify the intent of the drawings and specifications and on questions that may arise during construction. DBE shall have access to observe work at all times wherever it is in preparation or progress. DBE does not have the authority to act for the County or to stop work. Should the DBE observe work which in DBE’s judgment, should be stopped to prevent damage, injury, loss, or error, DBE should notify the County’s representative without delay.

3. COMPLIANCE WITH LAWS AND REGULATIONS

DBE represents and agrees that services to be provided under this Contract shall fully comply, at DBE expense, with all standards, laws, statutes, restrictions, ordinances, requirements, and regulations (collectively “laws”), including, but not limited to those issued by County in its governmental capacity and all other laws applicable to the Projects/Services at the time Projects/Services are provided to and accepted by County.

DBE acknowledges that County is relying on DBE for such compliance, and pursuant to the requirements of the indemnification paragraph above, DBE agrees that it shall defend, indemnify and hold County and County Indemnitees harmless from all liability, damages, costs and expenses arising from or related to a violation of such laws. DBE shall remain in compliance and in good standing, maintaining current and active business entity and/or nonprofit registration status, with all applicable federal, state and local registration requirements at the time of execution of the contract through the duration of the term of the Contract, and shall provide annual confirmation of current and active status to County through the term of the Contract.

4. CONFLICT OF INTEREST

Contractor Personnel:

The DBE shall exercise reasonable care and diligence to prevent any actions or conditions that could result in a conflict with the best interests of the County. This obligation shall apply to the DBE; the DBE’s employees, agents, and relatives; sub-tier Contractors; and third parties associated with accomplishing work and Projects/Services hereunder. DBE’s efforts shall include, but not be limited to establishing precautions to prevent its employees or agents from: making, receiving, providing or offering gifts, entertainment, payments, loans or other considerations which could be deemed to appear to influence individuals to act contrary to the best interests of the County.

The DBE shall notify County, in writing, of any potential or actual conflicts of interest between Contractor and County that may arise prior to, or during the period of, Contract performance, including, but not limited to, whether any known County public officer’s child is an officer or director of, or has an ownership interest of ten (10) percent or more in, Contractor. While Contractor will be required to provide this information without prompting from County any time there is a change regarding conflict of interest, Contractor must also provide an update to County upon request by County.

Pre-Bid Services Firms that perform pre-bid services, including but not limited to, feasibility, programming, and/or criteria documents are not prohibited from being part of a DBE so long as they are not considered an “Officer” within the provisions of Government Code 1090 and 1097.6. Interested firms that were involved in pre-bid services shall seek approval in writing from County for concurrence that the firm is not an “Officer” prior to submitting an SOQ.

County Personnel:

County of Orange Board of Supervisors policy prohibits its employees from engaging in activities involving a conflict of interest. Contractor shall not, during the period of this Contract, employ any County employee for any purpose.

5. DBE’S LICENSE

At all times during the term of this Contract, DBE shall: (a) maintain in good standing all licenses required by the State of California or any other governmental entity for it to perform the work required under the Contract; and (b) comply in all respects with the California DBEs’ State License Law, Business & Professions Code Section 7000, et seq.

6. LICENSED SUBCONTRACTOR

Each Subcontractor selected for the work shall be licensed in the State of California in the Subcontractor’s particular field.

7. COMMUNICATIONS

Communications with Subcontractors shall be made through DBE except when in emergency situations DBE is not readily available, in which case detailed instructions shall be transmitted to Subcontractors directly.

8. RESPONSIBILITY

DBE shall give personal attention to the fulfillment of the work and shall keep the work under its control. DBE shall be equally responsible for all work required by the Contract Documents and the acts and omissions of Subcontractors, and all persons directly or indirectly employed by them as DBE is for DBE’s acts and omissions and of persons directly or indirectly employed by DBE. DBE shall indemnify and hold County harmless with respect to the activities of each and every Subcontractor in the same manner and to the same degree as if such Subcontractor were the DBE’s employee. DBE shall pay each Subcontractor promptly the amount allowed DBE on account of such Subcontractor’s work to the extent of such Subcontractor’s interest therein.

9. CONTRACTUAL RELATIONS

Nothing contained in this Contract shall create any contractual relations between County and any Subcontractor.

10. LISTING AND SUBSTITUTION OF SUBCONTRACTORS

DBE shall comply with the Subletting and Subcontracting Fair Practices Act, California Public Contract Code Sections 4100, et seq. DBE may not substitute a person or entity in place of any subcontractor listed in a GMP except with County’s written approval in compliance with the provisions of Public Contract Code Sections 4107 et seq.

No performance of this Contract or any portion thereof may be subcontracted or otherwise delegated by Contractor, in whole or in part, without first obtaining the prior express written consent of County.

Any attempt by Contractor to subcontract or delegate any performance of this Contract without the prior express written consent of County shall be invalid and shall constitute a material breach of this Contract, and any attempted assignment or delegation in derogation of this paragraph shall be void.

In the event that Contractor is authorized by County to subcontract, this Contract shall take precedence over the terms of the agreement between Contractor and subcontractor, and any agreement between Contractor and a subcontractor shall incorporate by reference the terms of this Contract. Contractor shall remain responsible for the performance of this Contract and indemnification of County notwithstanding the County’s consent to Contractor’s request for approval of a subcontractor. Under no circumstances shall County be required to directly monitor the performance of any subcontractor. All work performed by a subcontractor must be monitored by Contractor and must meet the approval of the County of Orange pursuant to the terms of this Contract.

DBE to coordinate with the County of the timing and form of approvals prior to initiating a recommendation for approval of the first subcontract on the project.

11. SITE INVESTIGATION & DESIGN DEVELOPEMENT

11.1 SITE AND EXITING CONDITIONS

11.1.1 DBE is charged with all information and knowledge that a reasonable DBE would ascertain from having performed required review, research and analysis as described below and described throughout the Contract.

11.1.2 The DBE will be responsible for all necessary field investigations needed to confirm and document the existing conditions. DBE shall perform all testing required to adequately design the project such as: geotechnical investigations, utility surveys, topographic surveys, test borings, hazardous material testing, destructive testing (masonry investigation, concrete cores, and window removals), hydrant flow tests, etc., and review with the County Project Manager.

11.1.3 Using available existing building plans, site plans, geotechnical information, etc., provided by OC Public Works / A&E Project Management, the DBE shall review existing drawings, reports and documentation that pertain to the project area. The County Project Manager may provide assistance in obtaining additional data.

11.1.4 Make site visit arrangements through the County Project Manager.

11.1.5 Subsurface Conditions:

1) Those reports of explorations and tests of subsurface conditions at or contiguous to the Site that have been made available for informational purposes; and

2) Physical Conditions: Those drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site that have been made available for informational purposes.

11.1.6 These reports and drawings are not Specifications but as provided in Existing Conditions reports, DBE may rely on the information in these reports and drawings. However, DBE shall independently verify the information provided in the reports and shall prepare or have prepared new and updated reports in developing the design of the Project.

11.1.7 Records of existing structures on or in the vicinity of Site of Work may be supplied in Existing Conditions reports, or may be on file in the County's offices and may be examined by DBE (but subject to the conditions of Existing Conditions reports). DBE should note that existing structures or facilities may differ from records on file, or may have been altered, and that no representation is made, nor responsibility taken nor warranty given either express or implied, by the County as to the accuracy of locations and other data shown on records, except as…