HomeMy WebLinkAboutReso 39-2024 (24-107)OMPAC ORANGE MEMORIAL PARK AQUATIC CENTER
SOUTH SAN FRANCISCO, CA
00500 - 1
OWNER-CONTRACTOR
Orange Memorial Park Aquatic Center
AGREEMENT
SECTION 00500
CITY OF SOUTH SAN FRANCISCO
OWNER-CONTRACTOR AGREEMENT
FOR THE
ORANGE MEMORIAL PARK AQUATIC CENTER (OMPAC) PROJECT
THIS AGREEMENT made and entered into this ____, day of ______, _____, between the
CITY OF SOUTH SAN FRANCISCO, a municipal corporation and political subdivision of the State of
California, hereinafter called “OWNER,” and <Contractor>, Inc., hereinafter called “CONTRACTOR”1.
In consideration of the mutual covenants and agreements set forth herein, CONTRA CTOR and
OWNER hereby agree as follows:
ARTICLE I
CONSTRUCTION
Subject to and in accordance with the terms of this Agreement, the CONTRACTOR shall do all
the work and furnish all the labor, services, materials and equipment necessary to construct and
complete, in accordance with the CONTRACT DOCUMENTS (as hereinafter defined) in a good,
workmanlike and substantial manner and to the satisfaction of OWNER, SOUTH SAN FRANCISCO
ORANGE MEMORIAL PARK AQUATIC CENTER OMPAC PROJECT ("PROJECT") upon that real property
located in South San Francisco, California more particularly depicted on Exhibit A (the "Site"). The
PROJECT is that described and reasonably inferable from the drawings and specifications and documents
enumerated in Exhibit B. Such construction and furnishing of labor, services, materials and equipment
and the performance of CONTRACTOR's other services and obligations required by the CONTRACT
DOCUMENTS are hereinafter referred to as the "WORK." The term "CONTRACT DOCUMENTS" or
“CONTRACT” shall mean all of the items enumerated in Exhibit B , and all change orders or addenda
issued with respect to the works and improvements described, mentioned, and set forth including this
Agreement.
The term "Contractor" as used herein is employed without distinction as to either number or gender and shall include
whenever the context shall permit all agents, representatives, employees, servants, subcontractors and business or social
invitees of Contractor.
OMPAC ORANGE MEMORIAL PARK AQUATIC CENTER
SOUTH SAN FRANCISCO, CA
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OWNER-CONTRACTOR
Orange Memorial Park Aquatic Center
AGREEMENT
ARTICLE II
CONTRACT SUM
OWNER shall pay and CONTRACTOR shall accept as full compensation for the WORK the sum
("CONTRACT SUM") set forth in Exhibit C.
ARTICLE III
TIME FOR PERFORMANCE
The Contractor shall complete all Work under the CONTRACT DOCUMENTS within five hundred and
sixty-three (563) calendar days of the effective date of the Notice to Proceed (“Scheduled
Completion Date”). The CONTRACTOR shall begin work within seven (7) calendar days from the
issuance of the Notice to Proceed, and shall diligently perform all of the work under this Contract in
all parts and requirements as defined in the CONTRACT DOCUMENTS.
In addition to the above;
1. All close-out documentation shall be submitted to the Owner no later than sixty (60) days
after Substantial Completion.
Section 3.1. Definitions.
The following are definitions as used in this Agreement:
The term "Completion Date" shall mean the date that all the WORK is substantially complete.
The term “Direct Costs” shall mean the premium portion of overtime pay (i.e., the amount in excess of
their regular hourly rate), the labor cost of adding additional workers to perform a task in excess of the
number of workers CONTRACTOR reasonably had planned to use, equipment costs in excess of
equipment CONTRACTOR reasonably had planned to use, and such other items of cost requested in
advance by CONTRACTOR and approved by OWNER.
The term "Excusable Delay" shall mean an actual delay in the performance of the WORK on the Project’s
Critical Path by CONTRACTOR caused by any of the following only if such events are beyond the
reasonable control of CONTRACTOR despite CONTRACTOR having taken all reasonable attempts to
prevent, avoid delay and mitigate the effects thereof:
A.An act or omission of OWNER, or by an employee, agent or representative of OWNER (other
than by reason of the proper exercise of their respective rights, duties and obligations under the
CONTRACT DOCUMENTS) except as provided in Section 7102 of the Public Contract Code; or
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OWNER-CONTRACTOR
Orange Memorial Park Aquatic Center
AGREEMENT
B. A fire, flood, unusually severe and abnormal weather conditions , rain in excess of the
anticipated average number of rain days per year over a ten (10) year period based on historic
weather data, war, embargo, sabotage, hurricane, earthquake, tornado; or
C. An injunction that prevents performance of the WORK, except for legal actions initiated by
CONTRACTOR, any subcontractor or supplier, or an injunction or legal action that resulted from
the acts or omissions of CONTRACTOR or any subcontractor or supplier; or
D. A general strike, regulatory delays, strikes in or losses during transportation, or other similar
event which is beyond CONTRACTOR'S control.
The CONTRACTOR acknowledges that actual delays in activities that do not affect the completion time
("non-critical delays") do not have any effect upon the Scheduled Completion Date, and therefore, will
not constitute an "Excusable Delay" nor be a basis for changing the Scheduled Completion Date. The
CONTRACTOR acknowledges that time extensions will be granted only to the extent that Excusable
Delays exceed the available float in the PROJECT Schedule. Nothing herein excused CONTRACTOR from
its obligation to mitigate damages.
The term "Final Completion" shall mean the completion of all the WORK including punch list items.
The term "Notice to Proceed" shall have the meaning described in Section 3.2 below.
The term "PROJECT" shall have the same meaning as that set forth in the General Conditions.
The term "Scheduled Completion Date" shall mean and refer to the date set forth by Section 3.2 below,
as such date may be extended pursuant to Section 3.3 below, or by Change Order.
The terms "Substantial Completion" and "Substantially Complete" shall have the meaning set forth in
Article 8 and Article 9 of the General Conditions.
Section 3.2. Notice to Proceed/Scheduled Completion Date.
The WORK under the Contract shall proceed pursuant to and in accordance with a written notice from
OWNER to CONTRACTOR to proceed (“Notice to Proceed”).
CONTRACTOR shall diligently commence performance of the WORK on the date specified in the Notice
to Proceed. CONTRACTOR shall complete performance of the entire WORK (as defined in Article 8 and
Article 9 of the General conditions) on or before four hundred and thirty-five (435) calendar days after
the date of issuance of the Notice to Proceed (“Scheduled Completion Date”).
Section 3.3 Extension of Scheduled Completion Date.
(A) Excusable Delay
In the event that CONTRACTOR is actually delayed on the performance of the WORK by any “Excusable
Delay” which is an unforeseeable delay beyond the CONTRACTOR’S control and not the fault of either
OMPAC ORANGE MEMORIAL PARK AQUATIC CENTER
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Orange Memorial Park Aquatic Center
AGREEMENT
party, then the Scheduled Completion Date shall be extended for a period equal to the length of such
Excusable Delay, as permitted by the General Conditions in the Contract Documents. Such extension of
time on account of an Excusable Delay shall not be allowed unless applied for in writing by the
CONTRACTOR within ten (10) calendar days of the commencement of any such delay and CONTRACTOR
meets the requirements provided for in the General Conditions of the Contract Documents . No verbal
approval, either express or implied, or any grant of time extension by OWNER or its agents shall be
binding upon OWNER unless and until such approval is expressly ratified in writi ng.
In the event the CONTRACTOR is delayed in the WORK by any such Excusable Delay, the CONTRACTOR’S
remedy shall be an extension of time. In no event shall CONTRACTOR be entitled to a monetary
payment over and beyond that, which is specified in the OWNER-CONTRACTOR Agreement plus that
which is specified by duly executed change orders.
(B) Excusable and Compensable Delays
In the event of delay in the Work that is (i) the responsibility of the OWNER, (ii) is unreasonable under
the circumstances involved, and (iii) is not within the contemplation of OWNER and CONTRACTOR at the
time the PROJECT was awarded, CONTRACTOR shall be entitled to an extension of time and
compensation for such delay in strict accordance with the provisions of this Section. No extension of
time or compensation shall granted unless the CONTRACTOR provides the OWNER with written notice
within ten (10) calendar days of the commencement of any such delay, or, as the circumstance may be,
CONTRACTOR’S reasonable notice of such delay. The OWNER must approve of any extension of tim e or
payment of compensation in writing. No verbal approval, either express or implied, or any grant of time
extension by OWNER or its agents shall be binding upon OWNER unless and until such approval is
expressly ratified in writing.
CONTRACTOR’S remedy, in addition to the extension of time, shall be as follows, upon CONTRACTOR’S
demonstration that these costs were actually incurred as a direct result of the delay:
a. Field or on-site labor shall be paid according to actual payroll data for the time of the delay. No
multipliers will be allowed unless previously approved in writing by OWNER;
b. Idle field equipment will be priced at a daily rate calculated from the actual invoice costs;
c. Idle field rental equipment will be priced at a daily rate calculated from the actual invoice costs;
and
d. Total mark up of items (a) through (c) above for overhead and profit, including all levels of
subcontractors and CONTRACTOR combined, shall not exceed 15% cumulative. For the
purposes of this section, overhead includes (1) all indirect labor such as management,
supervision, engineer and consulting, drafting, estimating, secretarial and accounting; (2) all
field office expenses, including office supplies and equipment; (3) insurance and bonds; and (4)
all corporate office expenses.
In the event of delay in the WORK, which is not due to an Excusable Delay under Section 3.3(A), or is not
an Excusable and Compensable Delay under Section 3.3(B), OWNER may direct that the WORK be
accelerated by means of overtime, additional crews or additional shifts or resequencing of the WORK.
All such acceleration associated with an inexcusable delay, where the delay is attributable to the
CONTRACTOR, shall be at no cost to OWNER. In the event of Excusable Delay under Section 3.3(A), or an
OMPAC ORANGE MEMORIAL PARK AQUATIC CENTER
SOUTH SAN FRANCISCO, CA
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OWNER-CONTRACTOR
Orange Memorial Park Aquatic Center
AGREEMENT
Excusable and Compensable Delay under Section 3.3(B), OWNER may similarly direct acceleration and
CONTRACTOR agrees to perform the WORK on the basis of reimbursement of Direct Cost plus a fee of
five percent (5%) of such costs but expressly waives any other compensation therefore. In the event of
any acceleration requested pursuant to this paragraph, CONTRACTOR shall provide promptly a plan
including recommendations for, in CONTRACTOR’s opinion, the most effective and economical
acceleration.
Section 3.4 Liquidated Damages.
A. Timely Completion
OWNER and CONTRACTOR recognize that time is of the essence of this Agreement, and that OWNER will
suffer financial loss if the work is not complete within the time specified, plus any extensions of time
authorized under Section 3.3 of this Agreement. OWNER and CONTRACTOR further recognize the
delays, expense and difficulty involved in proving OWNER’S actual losses in a legal proceeding.
Accordingly, and instead of requiring such proof of loss or damage, OWNER and CONTRACTOR agree
that for each calendar day's delay beyond the Scheduled Completion Date, (which delays are not
excused pursuant to Section 3.3 of this Agreement), CONTRACTOR shall pay to OWNER the amount of
$4,000.00
OMPAC ORANGE MEMORIAL PARK AQUATIC CENTER
SOUTH SAN FRANCISCO, CA
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OWNER-CONTRACTOR
Orange Memorial Park Aquatic Center
AGREEMENT
B. Prevailing Wage Compliance
OWNER and CONTRACTOR recognize that CONTRACTOR’s breach of applicable prevailing wage
provisions, including those applicable through the California Labor Code and OWNER’s additional
prevailing wage compliance provisions within this Contract (Article IV of the Owner-Contractor
Agreement and Article 17 of the General Conditions), will cause the OWNER damage by undermining
OWNER’s goals in assuring timely payment of prevailing wages, and will cause the OWNER additional
expense in obtaining compliance and conducting audits, and that such damage would not be remedied
by CONTRACTOR’s payment of restitution to the worker paid less than the prevailing wage. OWNER and
CONTRACTOR further recognize the delays, expense and difficulty involved in proving OWN ER’s actual
losses in a legal proceeding. Accordingly, and instead of requiring such proof of loss or damage, OWNER
and CONTRACTOR agree that for each instance where OWNER has determined that prevailing wage
requirements were not met, CONTRACTOR shall pay to OWNER as liquidated damages the sum of three
(3) times the difference between the actual amount of wages paid and the prevailing wage which should
have been paid.
ARTICLE IV
PREVAILING WAGES
Reference is made to the requirements on the general prevailing wage rates set forth in
the General Conditions of the CONTRACT DOCUMENTS. Those rates are hereby
specified as the minimum rates of prevailing wage to be paid workers under this Contract.
This Project is a Public Work, subject to Labor Code §1771. The general prevailing rate of per
diem wages and the general prevailing rate for holiday and overtime work in this locality for each craft,
classification, or type of worker needed to execute this Agreement is that ascertained by the Director of
the Department of Industrial Relations of the State of California. The Prevailing Rate Schedules shall be
made available to any interested party on request. The holidays upon which such rates shall be p aid
shall be all holidays recognized in the collective bargaining agreement applicable to the particular craft,
classification or type of worker employed on the PROJECT. CONTRACTOR shall post the Prevailing Rate
Schedule at the Site.
The wages to be paid for a day's work to all classes of laborers, workers, or mechanics on the work
contemplated by this contract, shall be not less than the minimum wage rate described in the Notice to
Bidders as applicable to this contract. Each laborer, worker or mechanic employed by a CONTRACTOR or
by any subcontractor shall receive the wages herein provided for. The CONTRACTOR shall pay forty dollars
($40) per day penalty for each worker paid less than prevailing rate of per diem wages unless the fail ure
of the CONTRACTOR or subcontractor to pay the correct rate of per diem wages was a good faith mistake
and, if so, the error was promptly and voluntarily corrected when brought to the attention of the
CONTRACTOR or subcontractor. The penalty may not be less than eighty dollars ($80) for each calendar
day, or portion thereof, for each worker paid less than the prevailing wage rate, if the CONTRACTOR or
subcontractor has been assessed penalties within the previous three years for failing to meet its preva iling
wage obligations on a separate contract, unless those penalties were subsequently withdrawn or
OMPAC ORANGE MEMORIAL PARK AQUATIC CENTER
SOUTH SAN FRANCISCO, CA
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OWNER-CONTRACTOR
Orange Memorial Park Aquatic Center
AGREEMENT
overturned. The penalty may not be less than one hundred twenty dollars ($120) for each calendar day,
or portion thereof, for each worker paid less than the prevailing wage rate, if the Labor Commissioner
determines that the violation was willful, as defined in subdivision (c) of Labor Code Section 1777.1. The
difference between the prevailing rate of per diem wages and the wage paid to each worker shall be paid
by the Contractor to each worker.
The general prevailing wage rates determined by the Director of Industrial Relatio ns are available
at the California Department of Industrial Relations website at http://www.dir.ca.gov, at the County of
San Mateo and at the Office of the City Engineer located at:
City of South San Francisco
315 Maple Avenue
South San Francisco, CA 94080
CONTRACTOR shall comply with the payroll records requirements set forth in Section 17.2 of the
General Conditions and the provisions in Section 7.10 of the General Conditions concerning apprentices
and shall be responsible for causing all of CONTRACTOR's subcontractors to comply with these
requirements and provisions.
In addition to the California Labor Code requirements, OWNER recognizes that CONTRACTOR’s
payment of prevailing wages promotes the following goal s:
1. Protection of job opportunities within the City of South San Francisco and stimulation of the
economy by reducing the incentive to recruit and pay a substandard wage to workers from distant,
cheap-labor areas;
2. Benefiting the public through the superior efficiency and ability of well -paid employees, thereby
avoiding the negative impact that the payment of inadequate compensation has on the quality of
services because of high turnover and instability in the workplace;
3. Payment of a wage that enables workers to live within the community, thereby promoting the
health and welfare of all citizens of South San Francisco by increasing the ability of such workers to
attain sustenance, avoid poverty and dependence on taxpayer funded social services; and
4. Increasing competition by promoting a level playing field among contractors with regard to the
minimum prevailing wages to be paid to workers.
The OWNER will not recognize any claim for additional compensation because of the payment by the
CONTRACTOR for any wage rate in excess of prevailing wage rate set forth in the contract documents.
The possibility of wage increases is one of the elements to be considered by the CONTRACTOR in
determining the CONTRACTOR’s bid, and will not, under any circumstances be considered as the basis of
a claim against the OWNER on the contract.
An error on the part of an awarding body does not relieve the CONTRACTOR from responsibility for
payment of the prevailing rate of per diem wages and penalties pursuant to Labor Code Sections
1770-1775.
OMPAC ORANGE MEMORIAL PARK AQUATIC CENTER
SOUTH SAN FRANCISCO, CA
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Orange Memorial Park Aquatic Center
AGREEMENT
ARTICLE V
NON-DISCRIMINATION
In the performance of this Agreement, the CONTRACTOR will not refuse or fail to hire or employ
any qualified person, or bar or discharge from employment any person, or discriminate against any
person, with respect to compensation, terms, conditions or privileges of employment, because of such
person's race, religious creed, color, national origin, ancestry, physical disability, mental disability,
medical condition, genetic information, marital status, sex, gender, gender identity, gender expression,
age, sexual orientation, military and veteran status, or other protected status. If the CONTRACTOR or
any of his subcontractors shall be found in violation of the above nondiscrimination provision, the
CONTRACTOR shall be deemed to be in material breach of this Agreement and thereupon the OWNER
shall have the power to do all or any of the following: (1) to cancel or suspend this Agreement, in whole
or in part, and (2) to deduct and retain from the amount payable to the CONTRACTOR the sum of
$250.00 for each person discriminated against in the performance of this Agreement for each calendar
day during which such person was discriminated against in the performance of this Agreement, as
liquidated damages for such breach of this Agreement, provided that the number of persons
discriminated against shall not be deemed, for the purpose of determining the amount of such damages
only, to exceed the number of positions in connection with which such discrimination occurs, e.g., if 20
persons are improperly discriminated against in connection with five position s, then the multiple use in
assessing damages shall be the number of positions (5) and not the number of persons (20)
discriminated against. In the event such finding is made after completion of the contract and after
payment of all sums due CONTRACTOR by OWNER, CONTRACTOR shall be obligated to pay said sum to
OWNER upon demand by OWNER. Violations of said provisions by subcontractors shall for the purposes
of this provision be deemed to be violations by the CONTRACTOR. The CONTRACTOR shall not be
deemed to be in breach of the provisions of this paragraph unless the California Department of Fair
Employment and Housing, or an appropriate Federal commission or agency, or a court of the State of
California or of the United States Government finds, in any action or proceeding to which CONTRACTO R
is a party, that the CONTRACTOR or a subcontractor unlawfully discriminated against one or more
specifically named employees or applicants for employment in the performance of this Agreement;
provided that such court or state or federal entity has issued a final judgment, order, decree, or
injunction in such action or proceeding, and provided further, that for the purpose of this paragraph, no
judgment, order, decree or injunction shall be considered final during the period within which (1) appeal
may be taken, or (2) the same has been stayed by order of court, or (3) further proceedings for vacation,
reversal or modification are in progress before a competent administrative or judicial tribunal.
The CONTRACTOR shall include the provisions of the above p aragraph in every subcontract or
purchase order so that such provision shall be binding upon each of his subcontractors and vendors.
ARTICLE VI
WORKER'S COMPENSATION INSURANCE
By my signature hereunder, as CONTRACTOR, I certify that I am aware of the provisions of
Section 3700 of the Labor Code which require every employer to be insured against liability for Worker's
OMPAC ORANGE MEMORIAL PARK AQUATIC CENTER
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OWNER-CONTRACTOR
Orange Memorial Park Aquatic Center
AGREEMENT
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 Agreement.
ARTICLE VII
CONFLICT
In the event of conflict between the terms of this Agreement and the bid or proposal of said
CONTRACTOR, then, this Agreement shall control and nothing herein shall be consi dered as an
acceptance of the terms of the proposal conflicting herewith.
ARTICLE VIII
EXHIBITS
This Agreement includes the following Exhibits and Attachments, which are attached hereto and
incorporated herein by reference:
Exhibit A Site Map References
Exhibit B List of Contract Documents
Exhibit C Contract Sum
Attachments:
Attach 1: Initial Study and Mitigated Negative Declaration for the Orange
Memorial Park Aquatic Center Project, South San Francisco, CA
SWCA Environmental Consultants dated September 8, 2023
Attach 2: Orange Memorial Park Aquatic Center Project Mitigation
Monitoring and Reporting Program, SWCA Environmental
Consultants dated November 2023
Attach 2A: Table: Impact and Proposed Mitigation Measure, SWCA
Environmental Consultants dated Nov 2023
Attach 3: Soils Characterization Letter Report Ninyo Moore dated
November 21, 2023
Attach 4: Pre-Demolition Hazardous Materials and PCB Priority Material
Survey, Terracon October 25, 2023
Attach 5: Geotechnical Evaluation Report Ninyo Moore dated April 11,
2023
Attach 6: Art Feasibility Study for Eternal Flame Statuary
Attach 7: Potholing Report for location of Cal Water’s main water line in
Orange Avenue
OMPAC ORANGE MEMORIAL PARK AQUATIC CENTER
SOUTH SAN FRANCISCO, CA
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OWNER-CONTRACTOR
Orange Memorial Park Aquatic Center
AGREEMENT
IN WITNESS WHEREOF, the parties to these presents have hereu nto set their hands the day and
year first hereinabove written.
APPROVED AS TO FORM: THE CITY OF SOUTH SAN FRANCISCO
_____________________ By___________________________
City Attorney City Manager
______________________________
(CONTRACTOR Name)
By ___________________________
Its___________________________
By ___________________________
Its___________________________
Employer ID Number _____________
Contractor's License No. _________
Expiration Date: ________________
City Business License No.:__________
Expiration Date:__________________
OMPAC ORANGE MEMORIAL PARK AQUATIC CENTER
SOUTH SAN FRANCISCO, CA
00500
EXHIBIT A to
OWNER-CONTRACTOR
Orange Memorial Park Aquatic Center OMPAC AGREEMENT
EXHIBIT A
SITE MAP
(1 of 3)
(Reference drawing sheet L001 Illustrative Plan)
EXHIBIT A
OMPAC ORANGE MEMORIAL PARK AQUATIC CENTER
SOUTH SAN FRANCISCO, CA
00500
EXHIBIT A to
OWNER-CONTRACTOR
Orange Memorial Park Aquatic Center OMPAC AGREEMENT
SITE MAP
(2 of 3)
(Reference drawing sheet A200 Floor Plan)
OMPAC ORANGE MEMORIAL PARK AQUATIC CENTER
SOUTH SAN FRANCISCO, CA
00500
EXHIBIT A to
OWNER-CONTRACTOR
Orange Memorial Park Aquatic Center OMPAC AGREEMENT
EXHIBIT A
SITE MAP
(3 of 3)
(Reference drawing sheet A201 Floor Plan Outdoor Pool)