CC Resolution 8826
RESOLUTION NO. 8826
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CAMPBELL
AUTHORIZING THE EXECUTION OF A PARK DEVELOPMENT AGREEMENT
WITH NCD CONSTRUCTION, INC; AUTHORIZING THE PUBLIC WORKS DIRECTOR
TO EXECUTE AND AGREEMENT WITH GUZZARDO AND ASSOCIATES;
APPROVING A CONCEPTUAL PARK DESIGN SCHEDULE; AND
APPROVING A BUDGET ADJUSTMENT
WHEREAS, the City Council finds as follows:
1. The City is the owner of 4.1 acres of land commonly known as a portion
of the former San Tomas School Site ("Park") and City desires to obtain construction
project management services for the purpose of developing said land into a public park
("Project");
2. NCD Construction, Inc. IS a wholly owned subsidiary of New Cities
Development Group (NCDG);
3. NCDG is a General Partner in 36 NC Campbell, L.P., which is the general
partner of 36 Campbell Associates, L. P., the owner of Tract 8726, which is seeking to
develop 36 single-family homes on a subdivision adjoining the Park site;
4. 36 Campbell Associates L.P. is obligated to pay the total sum of $395,640
in Park Fees in accordance with conditions of approval for Tract 8726;
5. The development of the Park would enhance the value of 36 Campbell
Associates, L.P.'s adjoining subdivision;
5. NeD Construction, Inc. has the expertise, resources and capabilities to
construct the Park;
6. NCD Construction, Inc. can construct the park in less expense that City
could by itself;
7. Construction of the Park by NCD Construction, Inc. would satisfy 36
Campbell Associates, L.P.'s Park Fees obligation;
8. The nature of the Project is such that competitive proposals would be
unavailing and would not produce an advantage to the City or the public, and the
advertisement for competitive bid would be undesirable, impractical, or impossible, in that
NCD Construction, Inc. has a special interest in improving the park, is obligated to pay
for park improvements, and can improve the Park site more expeditiously and most
effectively in conjunction with development of its adjoining subdivision.
WHEREAS, the City wishes to obtain the services of Guzzardo and Associates, a professional
landscape architectural firm, for conceptual design services; and
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RECEIVED
JUN 1 1995
Ans.d.... .. .... . .
SAN TOMAS PARK
DEVELOPMENT AGREEMENT
THIS AGREEMENT is entered into as of the ~th day of June,
1995 by and between the CITY OF CAMPBELL ("city") and NCD
CONSTRUCTION, INC. ("Construction Manager") a wholly owned
subsidiary of New cities Development Group (NCDG).
WHEREAS, City is the owner of 4.1 acres of land commonly
known as the San Tomas School si te ("Park") which is more
specifically described in Exhibit "A" attached hereto and made a
part hereof, and City desires to obtain design and construction
project management services for the purpose of developing said land
into a recreational public park ("Project");
AND WHEREAS, NCDG is a General Partner in 36 NC Campbell,
L.P., which is the general partner of 36 Campbell Associates L.P.,
the owner of Tract 8726, which is seeking to develop 36 single-
family homes on a subdivision adjoining the Park site;
AND WHEREAS, 36 Campbell Associates L. P. is obligated to pay
the total sum of $395,640 in Park Fees in accordance with
conditions of approval for Tract 8726;
AND WHEREAS, city has determined to use the aforementioned
park fees for development of the Park site;
AND WHEREAS, development of the Park would be to the mutual
benefit of NCDG, 36 NC Campbell L.P, 36 Campbell Associates L.P.,
and City;
AND WHEREAS, Construction Manager wishes to assist the City
in the accelerated design and construction of the Park, and
represents that it has the expertise, means and ability to perform
the Project;
AND WHEREAS, Construction Manager desires to satisfy 36
Campbell Associates L.P.'s obligations for provision of park
facilities by developing the adjoining Park site in lieu of payment
of park fees;
AND WHEREAS, the nature of the project is such that
competitive proposals would be unavailing and would not produce an
advantage to th~ City or the public in general, in that
Construction Manager can improve the park site more expeditiously
and cost effectively in conjunction with development of the
adjoining subdivision;
NOW THEREFORE, in consideration of the promises and mutual
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covenants contained herein, and for the mutual benefits to be
derived from this Agreement, and in satisfaction of condition
number 16 on approved tentative subdivision map TS-9303 and
condition number 6 on site and Architectural approval S95-03, the
parties hereby agree as follows:
ARTICLE 1 - Extent of Aareement
1.1 Best Efforts: The Construction Manager accepts the
relationship of trust and confidence established between it and the
Ci ty by this Agreement. Construction Manager agrees to furnish its
best skill and judgment and to cooperate with the landscape
architectural firm selected by City pursuant to Section 3.1 of the
Agreement (" Consul tant" ) to develop the proj ect. Construction
Manager further agrees to furnish efficient business administration
and management and to use its best efforts to complete the Project
in an expeditious and economical manner consistent with the
interest of the City.
1.2 Extent of Agreement: This Agreement represents the
entire agreement between the City and the Construction Manager and
supersedes all prior negotiations, representations or agreements.
When drawings, plans, and specifications are completed and approved
by the City as provided herein, they shall be considered to be
incorporated as part of this Agreement. However, this Agreement
shall not be superseded by any provisions of the documents for
construction and may be amended only by written instrument signed
by both the City and the Construction Manager.
ARTICLE 2 - Duties of Construction Manaaer
Construction Manager shall perform the following services:
2.1 Design Phase
2.1.1 si te Clearance:
clear the Park site free of any
other refuse within thirty (30)
Agreement.
Construction Manager agrees to
and all structures, debris, or
days of the execution of this
2.1.2 Final Design: Upon the approval of a conceptual
Project plan by the City, Construction Manager agrees to retain
Consultant or another consultant acceptable to City to prepare any
and all final plans and specifications for the construction of
Project. Prior to retaining said Consultant for the preparation of
final plans and specifications, Construction Manager agrees to
submit any and all agreements between Construction Manager and said
Consultant, as well as any other design professionals retained by
Construction Manager, to the City for its approval. City will
approve, deny or otherwise comment on the agreement within seven
(7) days after the submittal of the agreement to the City.
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2.1.3 Submittal of Plans: Construction Manager agrees to
submit plans and specifications for the Project for plan check at
sixty percent (60%), and one hundred percent (100%) completion
intervals for city review, comment and approval. Construction
Manager shall use its best efforts to ensure plans and
specifications are submitted to City such that City can complete
its review and approval by September 15, 1995 as specified in
section 3.3.
2.1." Preliminary Construction Budget: Between the
submittal of the sixty (60%) and 100 percent (100%) plans and
specifications for comment, Construction Manager shall prepare and
present to City a Preliminary Construction Budget based on bids in
response to preliminary plans, which shall itemize the anticipated
costs of labor, materials and other items necessary to complete the
Project.
2.1.5 Final Construction Budget: The Preliminary
Construction Budget shall be updated following receipt of final
bids based on final approved plans and specifications for
construction of the Project. As provided for in Article 6, city
and Construction Manager shall establish the scope of the project
to be constructed by Construction Manager.
2.1.6 Cooperation: Construction Manager and City agree
to cooperate in good faith in all aspects of the design phase
contemplated by the performance of the Agreement.
2.2 construction Phase
2.2.1 Physical Construction: Construction Manager agrees
to have Park improvements constructed in substantial conformance
with the final plans and specifications. As used in this section,
construction shall include, but not be limited to, conducting
bidding for Trade Contractors, providing supervision, labor,
materials, construction equipment, tools, and any and all other
items which are necessary for the completion of the Project.
2.2.2 Scheduling: Construction Manager shall use its
best efforts to complete construction of the Project within one-
hundred and twenty (120) days of approval of the final plans and
specifications, subject to delays due to weather, acts of God, or
force majeure. Construction Manager shall advise City if at any
time they have reason to believe the Project will not be completed
on schedule.
2.2.3 Deposit of Security: Construction Manager shall
obtain, and maintain in full force and effect at all times prior to
final acceptance of the Project the following contract bonds in the
amounts equal to the total of the Construction Manager's Park Fee
obligation:
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(a) A Faithful Performance bond including
a one (1) year maintenance period on a
form approved by the City;
(b) A Labor and Materials bond on a form
approved by the city;
(c) A payment bond on a form approved by
the City.
All alterations, extensions of time, extra and additional work, and
other changes authorized by this Agreement may be made without
securing the consent of the surety or sureties on the contract
bonds. For purpose of this Agreement, the one (1) year maintenance
period shall commence upon acceptance of completion by the City,
during which time Construction Manager shall repair or replace any
defect in their works, materials or facilities that appear within
one (1) year from the date of the final acceptance of the project,
unless such defect is solely caused by negligence or intentional
misconduct of a ci ty or third party not under contract wi th
Construction Manager.
2 .2. .. Change Orders: Construction Manager, in
conjunction with City, shall develop and implement a system for the
preparation, review, and processing of Change Orders generally
conforming to change order provisions of City of Campbell standard
specifications, and recommend and submit necessary or desirable
changes to the City for its approval, as provided in Article 7 of
this Agreement.
2.2.5 Progress Meetings: Construction Manager at the
City's request shall schedule and conduct weekly progress meetings
at which City, Consul tant and Construction Manager can discuss
jointly such matters as procedures, progress, problems and
scheduling.
2.2.6 Warranty: Construction Manager shall use its best
efforts to ensure that all materials and equipment included in the
Project will be new, unless otherwise specified, and that such work
will be of good quality, free from improper workmanship and
defective materials, and in substantial conformance with the final
drawings, plans, and specifications. Construction Manager further
agrees to perform the service contemplated by this Agreement in
accordance with the skill and expertise exercised by members of
Construction Manager's profession.
2.2.7 Cooperation: Construction Manager and City agree
to cooperate in good faith in all aspects of the construction phase
contemplated by the performance of the Agreement.
2.2.8 Permits: Construction Manager shall not be
responsible for paying for any permits that the City may require
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for the project. Construction Manager shall be responsible for
obtaining a no fee encroachment permit from the city prior to
commencing any construction under this agreement. Construction
Manager shall be responsible for obtaining any necessary permits
and approvals in connection with the project from any and all other
agencies. However, City shall cooperate in assisting Construction
Manager in obtaining permits from other agencies as is necessary.
2.2.9 Surveys and Reports: City shall furnish for the
site of the Project all existing surveys describing the physical
characteristics, soil reports and subsurface investigations, legal
limitations, utility locations, and a legal description that are
currently in City's possession. City and Construction Manager
shall mutually develop the scope of soils report and testing
program. Construction Manager shall obtain on behalf of the City a
soils report on the condition of the soils and subsurface areas
signed and sealed by a competent engineer for submission to the
City for its approval. Upon approval of the report by the City,
the City will accept responsibility for any site conditions that
materially differ from those disclosed in the approved soils
report, surveys and investigations made available to Construction
Manager. Construction Manager shall retain a surveyor, as
necessary, for design and/or construction phases. Costs incurred
by Construction Manager under this section shall be considered as
cost of the Project and eligible for In Lieu Credit or
Reimbursement as provided for in Article 6.
2.2.10 Regulation Compliance: Construction Manager shall
comply with all applicable local, state, and federal laws,
including, but not limited to, any codes and regulations pertaining
to construction of public facilities as they might apply to
Construction Manager or the Project.
2.2.11 Final Completion: Construction Manager shall
provide written notice to the City and Consultant that the project
is ready for final inspection and secure and transmit to the City
all required guarantees, affidavits, and receipts of final payment,
releases, bonds and waivers, and As-Built drawings.
ARTICLE 3 - city's ResDonsibilities
3.1 Landscape Architectural Consul tant: ci ty shall
select and retain a landscape architectural Consultant for the
facilitation of community meetings, development of park programs,
design alternatives, preparation of conceptual Project plan and
cost estimate. Construction Manager shall deposit with the City
cash in an amount equal to Consultant's contract costs prior to
City executing agreement with Consultant. Said deposit shall be
considered a cost of the project and eligible for In Lieu Credit or
Reimbursement as provided for in Article 6.
3.2
Approval of Concept Plan:
City shall use its best
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efforts to obtain approval of a conceptual Project plan from the
city Council of city of Campbell by August 1, 1995. The
development and approval of a conceptual Project plan shall be
subject to community meetings, review by the Parks and Recreation
Commission, and Open Space Committee of the City council of the
City of Campbell.
3.3. Approval of Final Plans: City shall use its best
efforts to approve final plans and specifications by September 15,
1995. Except as provided in section 3.4, no work shall commence on
the project until the City has approved the final plans and
specifications in writing.
3.4 Work In Advance of Final Approval: City, in its
sole discretion, may allow Construction Manager to commence design
work prior to council approval of conceptual plans, or construction
work prior to written approval of the final plans and
specifications, in which case Construction Manager will proceed at
its own risks as to any deviation between the work and the approved
conceptual or final plans and specification, and shall bring the
Project into conformance with the approved conceptual plan or final
plans and specifications at Construction Managers sole cost and
expense, and shall not be entitled to any credit or reimbursement
from City for such costs and expenses resulting from such
deviation. Credit shall be provided to the extent said work is in
conformance with approved Conceptual Plans or Final Approved Plans
and specifications.
3.5 Inspection: City shall have the right to inspect
and approve all construction of the Project and related
improvements to the Park. Such approval shall not be unreasonably
withheld or delayed.
3.6 Full Disclosure: City shall provide full
information regarding its requirements for the Project and shall
designate a representative who shall be fully acquainted with the
Project and has authority to approve Project Construction Budgets,
Change Orders, and who shall render decisions promptly and furnish
information expeditiously.
3.7 Final Acceptance: Upon final acceptance of the
Project by the City, the City shall record a Notice of Completion
and release the security provided pursuant to section 2.2.3 of this
Agreement.
3.8 Relief from Maintenance and Responsibility: Upon
request of Construction Manager and a showiny of unusual
circumstances, City may make a partial acceptance of a portion of
the work on the Project, which will relieve Construction Manager
from the responsibility for maintenance and protection of the
partial accepted portion of the project. Partial acceptance shall
initiate the one (1) year maintenance period set forth in section
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2.2.3 of this Agreement as to the portion of the Project Partial
accepted. A partial acceptance will be considered only upon a
written request from the Construction Manager specifying the
unusual circumstances and the specific portion of the Project to be
accepted. The City shall be the sole and final judge of whether
the indicated unusual circumstances warrant a partial acceptance
and of what portion of the work is partially accepted. However,
nothing contained herein shall be construed as relieving
Construction Manager, its contractors, subcontractors or others
providing services to Construction Manager of their full
responsibility for making good defective work or materials under
this Agreement or other applicable provisions of law. Construction
Manager shall provide reasonable access to City to maintain those
areas which have been partially accepted.
ARTICLE 4 - Trade Contracts and Consultants
4.1 Responsibility to City: The Construction Manager
shall be responsible to the City for the acts and omissions of his
agents and employees, Consultants, Trade Contractors performing
work under a contract with the Construction Manager, and such Trade
Contractors' agents and employees only during the design or
construction of Construction Manager's portion of the proj ect.
Trade Contractors shall be responsible directly to the Construction
Manager and shall not be construed as having any contractual
relationship with city.
4.2 Responsibility to Construction Manager:
Construction Manager shall be solely responsible for any and all
claims from Trade Contractors, suppliers or materialmen in excess
of the bid submitted by the Trade Contractor, supplier or
materialman, whether arising out of delay, disruption or any other
cause, and shall not be entitled to any credit or reimbursement
from the City, unless the compensation was expressly approved by
the City in connection with a change order pursuant to Article 7 of
this Agreement or the claims are the result of City caused delays
or differing site conditions. Construction Manager shall
indemnify, defend and hold City, its officers, officials,
employees, agents and volunteers, harmless from any of the above-
described claims, which indemnity shall also cover any and all
reasonable costs and attorney's fees incurred by City in defense of
such claims.
ARTICLE 5 - Cost of the Project
5.1 Cost Items: The term Cost of the Project shall
mean costs necessarily incurred in the Construction Manager's
portion of the Project during either the Design or Construction
Phase, approved by the City and paid by the Construction Manager
including the cost of required bonds.
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5.2 city's Consultant Costs: city shall pay for the
City's Consultant costs associated with the preparation of a
conceptual park plan from construction Manager's cash deposit
described in Section 3.1.
5.3 Final Consul tant Plans: Construction Manager shall
pay the Consultant costs associated with the preparation of the
final plans and specifications of the Project, including costs of
soils reports and testing described in section 2.2.9.
5." Construction Costs: Construction Manager shall pay
for all costs of construction of the Project including, but not
limited to, wages and benefits for Construction Manager's
employees, cost of materials, supplies, and equipment including the
costs of transportation and storage thereof, payments made to Trade
Contractors, rental charges of all necessary machinery and
equipment, permit fees and licenses, insurance premiums directly
attributed to the project, the deductible portion of any claims
covered by Construction Managers insurance as approved by the City,
and all other expenses necessary to complete the Project in
substantial accordance with the project plans and specifications.
5.5 Audi t of Costs: Construction Manager shall maintain
detailed records concerning all Costs of the Project in accordance
with generally accepted accounting practices. These records, and
all supporting documentation shall be maintained by the
Construction Manager for a period of at least three years following
acceptance of the Project by the City. These records shall be
available for review by City, or its designated representative
during normal working hours at Construction Managers main office.
The city, at its own expense, may hire a qualified auditor to
conduct an audit of the records and supporting documentation upon
reasonable advance notice to Construction Manager, not less than
twenty-four (24) hours. Construction shall provide its full and
complete cooperation to the auditor in conducting the audit.
ARTICLE 6 - Scope of proiect and Credit of proiect Costs
6.1 Determination of Project Scope: Based on the Final
Construction Budget as described in section 2.1.5, City and
Construction Manager shall meet and confer in good faith in an
attempt to agree on the scope of the Project to be constructed by
Construction Manager. In establishing the scope of the Project,
the parties shall endeavor to have the cost of the Project equal,
so far as possible, the amount of the Park Fees owed by
Constructivn Manager to City, including a reasonable allocation for
contingencies of not less than ten percent (10%) of the total
Project Budget. If the parties are unable to agree on the scope of
the Project within five (5) days after receipt of bids, then
Construction Manager shall have the option of offering to construct
interim landscaping and irrigation improvements acceptable to the
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city, or paying its Park Fees and terminating this Agreement. The
City and Construction Manager shall meet and confer in good faith
on the proposal in an attempt to reach agreement on the scope of
the interim improvements. If no agreement on the scope and credit
of the interim improvements is reached within ten (10) days
following receipt by the City of Construction Manager's written
notice, then the Agreement shall be deemed terminated, and
Construction Manager shall pay its then outstanding remaining Park
Fees obligation to City.
6.2 Procedure If Conceptual Plan Not Timely Approved:
If City does not approve a Conceptual Project Plan by August 1,
1995, Construction Manager may, within five (5) working days submit
a written request to City proposing to construct only interim
landscaping and irrigation improvements, or terminating this
agreement and paying its outstanding Park Fee obligations. Upon
receipt of a notice of a proposal for installation of interim
landscaping and irrigation improvements, the City and Construction
Manager shall meet and confer in good faith on the proposal in an
attempt to reach agreement on the scope of the interim
improvements. If no agreement on the scope and credit of the
interim improvements is reached within ten (10) days following
receipt by the City of Construction Manager's written notice, then
the Agreement shall be deemed terminated, and Construction Manager
shall pay its then outstanding remaining Park Fees obligation to
City.
6.3 Procedure If Final Plans and specifications Not
Timely Approved: If City fails to approve Final
Plans and Specifications by September 15, 1995, Construction
Manager may, within five (5) working days submit a written request
to City proposing to construct only interim landscaping and
irrigation improvements, or terminating this Agreement and paying
its outstanding Park Fees obligations. Upon receipt of notice of
a proposal for construction of only interim landscaping and
irrigation improvements, the City and Construction Manager shall
meet and confer in good faith on the proposal in an attempt to
reach agreement within the scope of the interim improvements. If
no agreement on the scope and credit of the interim improvements is
reached within ten (10) days following receipt by the City of the
Construction Manager's written notice, then the Agreement shall be
deemed terminated, and Construction Manager shall pay its then
outstanding remaining Park Fee obligation to City.
6.4 In Lieu Credit: Except as otherwise provided in
this Agreement, City shall credit the Costs of the Project against
Construction Manager's Park Fee obligation upon submission of proof
of payment.
6.5 Limit of Park Fee Credit, Project Costs and Scope of
Work: Notwithstanding Section 6.4 or any other provision of this
Agreement, (i) the City'S obligation to credit the Project cost
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against the Park Fee obligation shall not exceed the amount of the
Park Fee obligation, (ii) the Construction Manager's obligation to
incur Project costs shall not exceed the amount of the Park Fee
credit, and (iii) the scope of the work which Construction Manager
shall be obligated to do under this Agreement shall not exceed the
amount of the Park Fee credit granted against Costs of the Project
incurred, unless City approves and pays for any additional costs
incurred in connection with a City approved change order.
6.6 Credi t for Interim Landscaping: If the parties opt
to provide for only interim landscaping and irrigation pursuant to
sections 6.1, 6.2 or 6.3, then Construction Manager shall be
entitled to a credit against its Park Fee obligation for
construction of the improvements in an amount equal to only the
cost of installing those portions of the interim improvements that
will survive and are necessary for the construction of the final
park improvements for the Project and other cost of the Project
provided in Article 3. Notwi thstanding any provisions of this
agreement to the contrary, any interim improvements shall be
subject to all applicable project requirements and construction
manager obligations.
6.7 Costs of Clearing site: Also notwithstanding
section 6.1, any and all costs associated with or incurred by
Construction Manager in connection with the clearing of the Project
site as stated in section 2.1.1 shall not be credited against park
fees nor reimbursed by City.
6.8 Compensation to Construction Manager: The
Construction Manager shall not be entitled to any compensation or
reimbursement for its overhead, payroll expense, employee benefits,
or value of its services, or any compensation for its services from
City.
6.9 ci ty Election to Retain Consul tant: Notwi thstanding
anything contained in this Agreement to the contrary, City may, in
its sole discretion, Reimburse Construction Manager for Consultant
or other project costs, in which case Construction Manager would
not be entitled to credi t for the costs of the Consultant' s
services or reimbursed project costs.
6. 10 Notwithstanding anything contained in this Agreement
to the contrary, if any of the Park Fee Obligation is left
uncredited at the final completion of the Project, the Construction
Manager shall remit the outstanding Park Fee's to City.
ARTICLE 7 - Chanaes in the proiect
7. 1 ci ty changes: The City, without inval idating this
Agreement, may order Changes in the Project within the general
scope of this Agreement consisting of additions, deletions or other
revisions which may increase or decrease the amount of Construction
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Manager's services. To the extent that the Change increases or
decreases the cost of the proj ect, the Construction Proj ect
Budget, Construction Manager's Credit, and the Construction
completion Date shall be adjusted accordingly. All such changes in
the project shall be authorized by Change Order.
7.2 Change Order: A Change Order is a written order to
the Construction Manager signed by the City or its authorized agent
issued after the execution of this Agreement, authorizing a Change
in the Project or the method or manner of performance and/or an
adjustment in the Construction Manager's Credit, the Construction
Project Budget, or Construction Completion Date. Each adjustment
resulting from a Change Order shall clearly separate the amounts
attributable to each item.
ARTICLE 8 - Indemnitv and Insurance
8 . 1 Indemni ty
8.1.1 Construction Manager agrees to indemnify, defend and
hold City, its agents, officers, attorneys, employees and officials
harmless from any and all claims, causes of action, injuries or
damages arising from the Construction Manager's operations under
this Agreement prior to final acceptance of the Project by the
City, and including any work required during the one (1) year
maintenance period, or out of any negligent or intentional conduct
on the part of Construction Manager, its agents, officers,
employees, Trade Contractors, or anyone rendering services on its
behalf. This indemnity shall include reasonable costs and
attorney's fees incurred in defending any action covered by this
provision.
8.1.2 City agrees to indemnify, defend and hold harmless
Construction Manager, NCDG, 36 NC Campbell, L.P., and 36 Campbell
Associates L.P., its affiliates (including without limitation
partnerships and other entities in which Construction Manager or
its affiliates are partners or members), and its and their agents,
officers, attorneys, and employees, from any and all claims, causes
or action, liabilities, expenses, injuries or damages arising from
(i) City's operations under this Agreement, (ii) or out of any
negligence or intentional misconduct on the part of the City, its
agents, officials, officers, or employees, (iii) all site
conditions at the Project that preexisted the commencement of
construction, and (iv) the conditions and use of the Park
subsequent to the earlier of (A) the public being admitted to the
Park, or (B) City's final acceptance of the Project, unless such
claims, causes of action, damages or injuries proximately arise out
of latent conditions due to the negligence or intentional
misconduct by Construction Manager, and give rise to a cause of
action within seven (7) years of the date of final acceptance of
Construction Managers portion of the project, in which case, this
indemnity shall not enure unless and until Construction Manager has
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first expended the sum of $400,000 toward settlement or judgement
in such cause or action. This indemnity shall include reasonable
costs and attorney's fees incurred in defending any action covered
by this provision.
8.2 Insurance
Construction Manager shall maintain insurance conforming to
the following specifications, unless otherwise approved in writing
by the City:
8.2.1 Premises Insurance: Construction Manager agrees,
at all times during the Design and Construction Phases and at
Construction Manager's sole expense, to maintain insurance coverage
at least as broad as: (A) Insurance Services Office Commercial
General Liability coverage "occurrence" form CG 0001 (Ed. 11/85),
a copy of which can be obtained from the Department of Public
Works; (B) Insurance Services Office form number CA 001 (Ed. 1/87)
covering Automobile Liability code 1 "any auto," a copy of which
can be obtained from the Department of Public Works; and (C)
Worker's Compensation insurance as required by the Labor Code of
the State of California and Employers Liability Insurance.
The insurance required hereunder shall maintain
limits no less than: (A) General Liability: $1,000,000.00 combined
single limit per occurrence for bodily, personal injury and
property damage. If Commercial General Liability Insurance or
other form with a general aggregate limit is used, either the
general aggregate limit shall apply separately to this
project/location or the general aggregate limit shall be twice the
required occurrence limit; (B) Automobile Liability: $1,000,000.00
combined single limit per accident for bodily injury and property
damage; and (C) Worker's Compensation and Employers Liability:
Worker's compensation limits as required by the Labor Code of the
State of California and Employers liability limits of $500,000.00
per accident.
8.2.2 Fire Insurance: Construction Manager, at all times
during the Design and Construction Phases and at Construction
Manager's expense, shall maintain on the premises, any buildings,
and other improvements on the premises, insurance against loss or
damage by fire and by any peril included within fire and extended
coverage for the premises. Any policy or policies described in
this subsection shall name City as an additional insured and the
policy shall contain cross-liability endorsements.
8.2.3 Property Insurance: Construction Manager further
agrees at all times during the Design and Construction Phases and
at Construction Manager's sole expense, to keep all of Construction
Manager's personal property, inclUding trade fixtures and equipment
and all merchandise of Construction Manager that may be on the
premises from time to time, insured against loss or damage by fire
and by any peril included within fire and extended coverage
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insurance for an amount that will insure the ability of
Construction Manager to fully replace the trade fixtures, equipment
and merchandise.
8.2. .. Other Insurance: Construction Manager shall provide
and keep in force other insurance in amounts that may from time to
time be required by City against other insurable hazards as are
commonly insured against for the type of business activity that
Construction Manager will conduct.
8.2.5 Deductibles and Self-Insured Retentions: Any
deductibles or self-insured retentions must be declared and
approved by the City. At the option of the city, either: the
insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects the City, its officers, officials, employees
and volunteers; or the Construction Manager shall procure a bond
guaranteeing payment of losses related investigations, claim
administration and defense expenses.
8.2.6 Other Insurance provisions: The policies required
by this Article are to contain, or be endorsed to contained, the
following provisions:
(A) As to General Liability and Automobile Liability
Coverage:
(1) The City, its officers, employees and volunteers are
to be covered as insured as respects: liability arising out of
activities performed by on or behalf of the Construction Manager,
products and completed
operations of the Construction Manager, premises owned, occupied or
used by the Construction Manager, or automobiles owned, leased,
hired or borrowed by the Construction Manager. The coverage shall
contain no limitations on the scope of protection afforded to the
City, its officers, officials, employees or volunteers.
(2) The Construction Manager's insurance coverage shall
be primary insurance as respects the City, its officers, officials,
employees and volunteers. Any insurance or self-insurance
maintained by the City, its officers, officials, employees or
volunteers shall be excess of the Construction Manager's insurance
and shall not contribute with it.
(3) Any failure to comply with reporting provisions of
the policies shall not effect coverage provided to the City, its
officers, officials, employees or volunteers.
( 4) The Construction Manager's insurance shall apply
separately to each insured against whom claim is made or suit is
brought, except with respect to the limits of the insurer's
liability.
(B) As to Workers' compensation and Employers Liability
Coverage, the insurer shall agree to waive all rights of
subrogation against the City, its officers, officials, employees
and volunteers for losses arising from work performed by the
Construction Manager.
(C) As to all coverages, each insurance policy required
13
by this Agreement shall be endorsed to state that coverage shall
not be suspended, voided, canceled by either party, reduced in
coverage or in limits except after thirty (30) days prior written
notice by certified mail, return receipt requested, has been given
to the city.
8.2.7 Acceptability and Verification: All insurance
policies as required by this Agreement are to be placed with
insurers with a Best's rating of no less that A:VII, unless written
approval is obtained from the City for the insurer with a lesser
rating.
Construction Manager shall furnish the ci ty with
certificates of insurance and with original endorsements affecting
coverage required by this Agreement. The certificates and
endorsements for each insurance policy are to be signed by a person
authorized by that insurer to bind coverage on its behalf. The
certificates and endorsements are to be on forms acceptable to the
city. Where by statute, the city's workers' compensation related
forms cannot be used, equivalent forms approved by the Insurance
Commissioner are to be substituted. All certificates and
endorsements are to be received and approved by the City before
Construction Manager begins construction on the premises. The city
reserves the right to require complete, certified copies of all
required insurance policies, at any time.
ARTICLE 9 - Termination
9.1 Notwithstanding any other rights or remedies that
the ci ty may have in law or equity, as in addi tion to the
provisions of sections 6.1, 6.2, and 6.3 of this agreement the City
shall have the right to terminate this Agreement for breach of any
of its terms or conditions by Construction Manager, or anyone
performing services on behalf of, or under Construction Manager.
Prior to terminating the Agreement pursuant to this section, City
shall give Construction Manager at least five (5) days advance
written notice of the breach. Construction Manager shall then have
thirty (30) days from the date of the notice to cure the breach.
If the breach is successfully cured within the thirty (30) day
period, the Agreement shall continue in full force and effect. If
Construction Manager fails to cure the breach within the thirty
(30) day period, City may terminate this Agreement.
9.2 In the event of termination, Construction Manager
shall be precluded from any credit for costs yet to be incurred,
and City shall not reimburse Construction Manager for any such
costs.
9.3 The warranty provisions contained in section 2.2.3
of this Agreement and the indemnity provisions contained in Article
8 of this Agreement shall survive termination under this Article.
14
ARTICLE 10 - Assiqnment and Governinq Law
10.1 The Construction Manager shall have the right to
assign this agreement to 36 Campbell Associates, L.P. upon five (5)
days advance written notice to the City. Neither the City nor the
Construction Manager shall have any other right to assign its
interest in this Agreement without the written consent of the
other.
10.2 This Agreement shall be governed by the law of the
state of California.
ARTICLE 11 - Miscellaneous provisions
11.1 This Agreement shall be binding on the heirs,
executors, assigns and successors of Construction Manager.
11.2 All original papers, documents, drawings, plans,
specifications and other work product of Construction Manager, and
copies thereof, produced by Construction Manager pursuant to this
Agreement, except documents which are required to be filed with
other public agencies, shall become the property of City and may be
used by ci ty without the consent of Construction Manager upon
credit of project costs.
11.3 City's waiver of any term, condition or covenant, or
breach of any term, condition or covenant, shall not be construed
as the waiver of any other term, condition or covenant or waiver of
the breach of any other term, condition or covenant.
11.4 If any term, condition or covenant of this Agreement
is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions of this Agreement shall be
valid and binding on City and Construction Manager.
11.5 All changes or amendments to this Agreement must be
in writing, and approved by all parties.
ARTICLE 12 - Notices
12.1 Notices required under this Agreement may be
delivered by first class mail addressed to the appropriate party at
one of the following addresses:
City:
City of Campbell
70 North First street
Campbell, CA 95008
Attention:
Mr. Robert Kass
Public Works Director
Construction
15
Manager:
NCD, Construction Inc.
9781 Blue Larkspur Lane
Monterey, CA 93940
Attention: Mr. Tom Merschel & Lee Newell
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
CITY
<:.
cl;y
By:
'J~ -.....~
OF CAMPBELL
Donald R. Burr, Mayor
Dated:
~
Dated:
c~o~ ~AGER
NCD, CONSTRUCTION INC.
By: Tim Cronin, President
16
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