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2016-06-14; Municipal Water District; Resolution 1550
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 1550 A RESOUTION OF THE BOARD OF DIRECTORS OF CARLSBAD MUNICIPAL WATER DISTRICT (CMWD), ACCEPTING BIDS AND AWARDING A DESIGN BUILD CONTRACT TO HABITAT RESTORATION SCIENCES, INC. IN THE AMOUNT OF $310,100 AND APPROPRIATING $225,000 FOR THE LAKE CALAVERA PRESERVE PALM GROVE REMOVAL AND NATIVE PLANT RESTORATION, PROJECT NO. 3821. EXHIBIT I WHEREAS, the Board of Directors of the Carlsbad Municipal Water District, California has determined it necessary, desirable, and in the public interest to perform the Lake Calavera Preserve Palm Grove Removal and Native Plant Restoration, Project No. 3821; and WHEREAS, the palm grove removal and native plant restoration are required by the California Department of Fish and Wildlife permit as mitigation to perform routine vegetation maintenance on the Lake Calavera Dam; and WHEREAS, on March 26, 2016, a Design Build Request for Proposal for the project was publicly advertised; and WHEREAS, one design build proposal was received for the Lake Calavera Preserve Palm Grove Removal and Native Plant Restoration, Project No. 3821; and WHEREAS, after reviewing and scoring all elements of the proposal in accordance with the selection criteria identified in the request for proposat the selection committee determined that the proposal from Habitat Restoration Sciences, Inc. is the best value proposer to provide requested design build services to perform the Lake Calavera Preserve Palm Grove Removal and Native Plant Restoration, Project No. 3821; and WHEREAS, the design build proposal received is in the amount of $310,100; and WHEREAS, staff is recommending that the Board approve the design build contract with Habitat Restoration Sciences, Inc. in the amount of$310,100; and Item 15; pg. 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, an additional appropriation is necessary for the construction and construction related services; and WHEREAS, under the Operating Agreement with the City of Carlsbad, the Carlsbad Municipal Water District adopted the city's purchasing rules; and WHEREAS, subsection 3.28.090(B) of the Carlsbad Municipal Code authorizes the Executive Manager to approve change orders in the amount equal to the contingency set at the time of project award. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad, California as follows: II II II II II II I 1. 2. That the above recitations are true and correct. That the proposal of $310,100 submitted by Habitat Restoration Sciences, Inc. for the design and construction of the Lake Calavera Preserve Palm Grove Removal and Native Plant Restoration, Project No. 3821, is accepted and the President is hereby authorized to execute the Agreement attached hereto as Attachment A (on file in the Office of the City Clerk). 3. That the Executive Manager is hereby authorized to approve construction change orders up to $31,000. 4. That the Administrative Services Director is hereby authorized to appropriate an additional $225,000 to Project No. 3821 from the Water Replacement Fund. 5. That the award of this contract is contingent upon Habitat Restoration Sciences, Inc. executing the required contract and submitting the required bonds and insurance policies, as described in the contract, within 10 days of adoption of this resolution. The Executive Manager may grant reasonable extensions of time. Item 15; pg. 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED, APPROVED AND ADOPTED at a Special Meeting of the Carlsbad Municipal Water District Board of Directors and the City Council of the City of Carlsbad and the on the 14th day of June, 2016, by the following vote to wit: AYES: Hall, Wood, Schumacher, Blackburn, Packard. NOES: None. ABSENT: None. ~~ MATI HALL, President JCI~JJr-CoP ,;___ 'BARB A ENGLESON, Secretary (SEAL) Item 15; pg. 5 CITY OF CARLSBAD San Diego County California DESIGN-BUILD CONTRACT FOR DESIGN AND INSTALLATION OF CALA VERA PRESERVE PALM GROVE REMOVAL AND NATIVE PLANT RESTORATION CONTRACT NO. 3821 PWDB16-111TRAN Design-Build Contract for the Design and Installation of Calavera Preserve Palm Grove Removal and Native Plant Restoration Project No. 3821 Between CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad, ("CMWD") And Habitat Restoration Sciences, Inc. A California corporation Pa g 0 1 I 25 TABLE OF CONTENTS Article Name ARTICLE 1 SCOPE OF WORK ............................................................................................................................. 4 ARTICLE 2 OPTIONS ......................................................................................................................................... 4 ARTICLE 3 CONTRACT DOCUMENTS ................................................................................................................ 4 ARTICLE 4 CONTRACT SUM ............................................................................................................................. 5 ARTICLE 5 CONTRACTTIME ............................................................................................................................. 6 ARTICLE 6 LIQUIDATED DAMAGES .................................................................................................................. 6 ARTICLE 7 COMPENSABLE DELAY .................................................................................................................... 7 ARTICLE 8 ASSIGNMENT .................................................................................................................................. 7 ARTICLE 9 REPRESENTATIVES OF THE PARTIES ............................................................................................... 8 ARTICLE 10 REPRESENTATIONS AND WARRANTIES ......................................................................................... 9 ARTICLE 11 CLAIMS AND LAWSUITS .............................................................................................................. 12 Agreement Between CMWD and Habitat Restoration Sciences, Inc., "Design Build Entity" for Calavera Preserve Palm Grove Removal and Native Plant Restoration 2 Agreement Between Carlsbad Municipal Water District and Habitat Restoration Sciences, Inc. This AGREEMENT is made as of the } 5 c.J.h day of Q ~ 2016 between the Carlsbad Municipal Water District, hereinafter "CMWD" and Habitat Resto ratOn Sciences, Inc., a California corporation, hereinafter "Design Build Entity", whose principal place of business is 4901 El Camino real, Suite D, Carlsbad, CA 92008 for Design Build services in connection with the Project. WHEREAS, CMWD and Design Build Entity accept the relationship of mutual trust and confidence established by this Agreement, and intend to cooperate with each other in furthering the interests of the Project and maintaining harmony among Project participants, NOW THEREFORE, In consideration of the mutual covenants and obligations contained herein, CMWD and Design Build Entity agree as follows. Agreement Between CMWD and Habitat Restoration Sciences, Inc., "Design Build Entity" for Calavera Preserve Palm Grove Removal and Native Plant Restoration 3 Article 1 Scope of Work 1.1 Design Build Entity shall perform all design and construction services, and provide all material, equipment, tools and labor, necessary to complete the Project (or Work) subject to and described in and reasonably inferable from the Contract Documents. The Work is further defined in Appendix 1. Design Build Entity agrees to do additional Work arising from changes ordered by CMWD pursuant to Article 7 of the General Conditions. A California Class A General Engineering Contractor and/or Class C-27 Landscape license is required to perform the Work. The Work will be performed in Phases identified as follows: • Phase 1-Design Development to 60-Percent Completion and Pre-construction Activities, and • Phase 2-Construction Document Completion, Construction and 120-Day Plant Establishment. Article 2 Options 2.1 CMWD's options rights under this Article 2 are independent of the "Termination for Convenience" rights as set forth in Article 13 of the General Conditions. CMWD retains the right to terminate this Contract for convenience at any time in accordance with Article 13 of the General Conditions. Article 3 Contract Documents 3.1 The Contract Documents comprise the following: 3.1.1 All written modifications, amendments, minor changes and Change Orders to this Agreement Between CMWD and Design Build Entity, including the General Conditions; 3.1.2 This Agreement; 3.1.3 Contract Exhibits: A. Definition of Terms B. Scope of Design Builder Services C. Project Background Documents D. Contractor's Project Approach E. Price Proposal 3.1.4 General Conditions; Agreement Between CMWD and Habitat Restoration Sciences, Inc., "Design Build Entity" for Calavera Preserve Palm Grove Removal and Native Plant Restoration 4 Article4 Contract Sum 4.1 CMWD shall pay Design Build Entity in accordance with the Contract Documents, including Article 9 of the General Conditions, the sum of $310,100 ("Contract Sum") for the work of Phase 1 and Phase 2, subject to adjustments made in accordance with the General Conditions. The Contract Price will remain fixed for a period of sixty (60} Calendar Days from the Contract Date, following which time, if the Notice to Proceed has not yet been issued, the Contract Sum is subject to equitable adjustment by agreement of the parties. Unless otherwise provided in the Contract Documents, the Contract Sum is deemed to include all sales, use, consumer and other taxes mandated by applicable Legal Requirements. 4.2 Upon the Design Build Entity's submittal, and CMWD's receipt, of the Guaranteed Maximum Price, CMWD shall determine whether to exercise its Option per Article 2 of this Agreement to proceed with Phase 2. The Guaranteed Maximum Price shall not exceed the Contract Sum unless Changes have been approved in writing by CMWD in accordance with the Contract Documents. 4.3 The Design Build Entity shall pay all costs that would cause the Contract Sum to be exceeded without reimbursement by the CMWD. Article 5 Contract Time 5.1 CMWD and Design Build Entity mutually agree that time is of the essence with respect to the contract dates and times set forth in this Article and the Baseline Schedule, in accordance with the requirements of Article 8 of the General Conditions. All of the dates set forth in this Article shall be subject to adjustment in accordance with the Article 7 of the General Conditions. 5.2 The time allowed for the completion of Phase 1 shall be as follows: 5.2.1 The 60-Percent Completion Design Package shall be submitted no later than 30 calendar days after the starting date specified in the Notice to Proceed. 5.3 The time allowed for the completion of Phase 2 shall be as follows: 5.3.1 Substantial Completion of the Work shall be achieved no later than one hundred fifty (150) calendar days after the starting date specified in the Notice to Proceed. 5.3.2 Interim milestones of identified portions of the Work shall be achieved in accordance with the Baseline Project Schedule to be prepared following Notice to Proceed. 5.3.3 Final Completion of the Work shall be achieved on or before two hundred forty (240) calendar days after the starting date specified in the Notice to Proceed ("Scheduled Final Completion Date"). 5.4 By signing this Agreement, Design Build Entity agrees to the following: Agreement Between CMWD and Habitat Restoration Sciences, Inc., "Design Build Entity" for Calavera Preserve Palm Grove Removal and Native Plant Restoration 5 5.4.1 The Contract Times for Phase 1 and Phase 2 are reasonable for completion of the Work of the respective Phase. 5.4.2 The Contract Time is reasonable for completion of the Work of all Phases. 5.4.3 Design Build Entity will complete the Work within the Contract Time. Article 6 Liquidated Damages 6.1 Design Build Entity understands that if the Work is not completed within the Contract Time as set forth in Article 5 of this Agreement, CMWD will suffer damages which are difficult to determine and accurately specify. If the Design Build Entity fails to complete the Work within the Contract Time, Design Build Entity shall pay to CMWD, as liquidated damages and not as a penalty, the amounts indicated below as set forth in this Article 6. CMWD and the Design Build Entity agree that the amounts of liquidated damages specified herein are reasonable estimates of and reasonable sums for such damages. 6.1.1 Design Build Entity agrees that if the Scheduled Substantial Completion Date is not achieved, then Design Build Entity shall pay CMWD, as liquidated damages and not as a penalty, within ten (10) Calendar Days following written demand by CMWD, the following amount: $500 for each calendar day beginning on the unachieved Scheduled Substantial Completion Date until the actual Substantial Completion Date. 6.1.2 Design Build Entity agrees that if the Scheduled Final Completion Date is not achieved, then Design Build Entity shall pay CMWD, as liquidated damages and not as a penalty, within ten (10) Calendar Days following written demand by CMWD, the following amount: $500 for each calendar day beginning on the unachieved Scheduled Final Completion Date until the actual Final Completion Date. 6.1.3 CMWD may offset any unpaid liquidated damages against payments due Design Build Entity. Notwithstanding the obligation to pay such liquidated damages, Design Build Entity shall continue to diligently prosecute the Work and make progress towards its completion during the period of delay. This provision shall not limit any right or remedy of CWMD in the event of any other default of the Design Build Entity other than failing to complete the Work within the Contract Time. Article 7 Compensable Delay 7.1 If the Design Build Entity is entitled to an increase in the Contract Sum as a result of a Compensable Delay, determined pursuant to Articles 7 and 8 of the General Conditions, the Contract Sum will be increased by the sum indicated below per day for each day for which such compensation is payable. This Article 7 will apply only if CMWD exercises its Option for the applicable Phase and only to the extent that the Design Build Entity fulfills requisites proving entitlement to Compensable Delay. 7.2 Compensable delay daily rate for Phase 2 is $2,500. Agreement Between CMWD and Habitat Restoration Sciences, Inc., "Design Build Entity" for Calavera Preserve Palm Grove Removal and Native Plant Restoration 6 Article 8 Assignment 8.1 If this Agreement is terminated prior to the exercise of CMWD's Option for Phase 2, the Design Build Entity shall execute an assignment to CMWD of all contracts with Design Professionals for work to be performed on Phase 1. Article 9 Representatives of the Parties 9.1 CMWD's Representative. CMWD designates the individual listed below as CMWD's Representative, which individual has the authority and responsibility set forth in the General Conditions: Sherri Howard, Associate Engineer CMWD's Representative Carlsbad Public Works Carlsbad, Carlsbad, CA 92008 Phone 760-602-2756 9.2 Design Build Entity's Representative. The Design Build Entity acknowledges that the identity of the key management and supervisory personnel proposed by the Design Build Entity and its Subcontractors listed in Exhibit A was a material factor in the selection of the Design Build Entity to perform this Agreement. The Design Build Entity shall utilize such personnel and Subcontractors to perform such services unless such personnel and Subcontractors are unavailable for good cause shown. "Good cause shown" shall not include performing services on other projects for the Design Build Entity or any of its Affiliates, but shall include termination for cause and employee death, disability, retirement or resignation. In the event of any such permissible unavailability, the Design Build Entity shall utilize replacement Subcontractors and key management and supervisory personnel of equivalent skill, experience and reputation. Any on-site personnel change shall be proposed to the CMWD for its review, consideration and determination of compliance with this section with reasonable advance notice, and is subject to the approval of the CMWD, which shall not be unreasonably withheld. 9.2.1 Design Build Entity designates the individual listed below as its Design Build Entity's Representative, which individual has the authority and responsibility set forth in the General Conditions: Name: Address: Phone: Mark Girard, President, Co-Founder 4901 El Camino real, Suite D Carlsbad, CA 92008 760-479-4210 Agreement Between CMWD and Habitat Restoration Sciences, Inc., "Design Build Entity" for Calavera Preserve Palm Grove Removal and Native Plant Restoration 7 Article 10 Representations and Warranties 10.1 Representations of the CMWD. CARLSBAD MUNICIPAL WATER DISTRICT, a Public Agency organized under the Municipal Water Act of 1911, and a Subsidiary District of the City of Carlsbad, ("CMWD"). 10.2 No Implied Representations or Warranties. Except as expressly set forth in this Agreement, CMWD shall not be deemed to have made and has not made (1) any representations or warranties, either express or implied, irrespective of any reviews or other action by CMWD, or its representatives, with respect to the Site. 10.3 Representations and Warranties of the Design Build Entity. Without superseding, or restricting any other representation or warranty set forth elsewhere in the Contract Documents, or implied by operation of the law, the Design Build Entity represents and warrants to CMWD as follows: 10.3.1 The Design Build Entity is a corporation, validly existing and in good standing under the laws of the State of California and has the authority to do business in this State, with the full legal right, power and authority to enter into and perform its obligations under this Agreement. 10.3.2 This Agreement has been duly authorized, executed and delivered by all necessary corporate action of the Design Build Entity and constitutes a legal, valid and binding obligation of the Design Build Entity, enforceable against the Design Build Entity in accordance with its terms, except to the extent that its enforceability may be limited by bankruptcy, insolvency or other similar laws affecting creditors' rights from time to time in effect. 10.3.3 Neither the execution nor the delivery by the Design Build Entity of this Agreement nor the performance by the Design Build Entity of its obligations in connection with the transactions contemplated hereby nor the fulfillment by the Design Build Entity of the terms or conditions hereof (1) conflicts with, violates or results in a breach of any constitution, law or governmental regulation applicable to the Design Build Entity, or (2) conflicts with, violates or results in a breach of any order, judgment or decree, or any contract, agreement or instrument to which the Design Build Entity is a party or by which the Design Build Entity or any of its properties or assets are bound, or constitutes a default under any of the foregoing. 10.3.4 No approval, authorization, order or consent, or declaration, registration or filing with any governmental body is required for the valid execution and delivery of this Agreement by the Design Build Entity or the performance of its payment or other obligations hereunder except as the same have been disclosed to CMWD and have been duly obtained or made. 10.3.5 There is no action, lawsuit or proceeding, at law or in equity, before or by any court or governmental body pending or, to the best of the Design Build Entity's knowledge, threatened against the Design Build Entity, which is likely to result in an unfavorable decision, ruling or finding which would materially and adversely affect the execution and delivery of this Agreement or the validity, legality or enforceability of this Agreement, or any other agreement or instrument entered into by the Design Build Entity in connection with the transactions contemplated hereby, or which would materially and adversely affect the abilityofthe Design Build Entity to perform its obligations hereunder or under any such other agreement or instrument. Agreement Between CMWD and Habitat Restoration Sciences, Inc., "Design Build Entity" for Calavera Preserve Palm Grove Removal and Native Plant Restoration 8 10.3.6 Design Build Entity and all of its Design Professionals and Subcontractors are properly certificated, licensed and qualified to perform the Work required by the Contract Documents. 10.3.7 Design Build Entity accepts the relationship oftrust and confidence with CMWD established by the Contract Documents. Design Builder will cooperate with the CMWD. 10.3.8 Design Build Entity and its Design Professionals have suitably reviewed the site survey, record documents, and other test reports, environmental documents and any other documentation furnished by CMWD in the Contract Documents. 10.3.9 Design Build Entity and its Design Professionals have carefully reviewed the Contract Documents and acknowledge that these Contract Documents establish the scope, level of quality, design intent and procedures for the development of the design to a state of 100% completion. 10.3.10 Design Build Entity agrees that (1) the Contract Documents depict and describe a design for the Project which is partially complete and may vary in degree of completion depending on the particular or specific part of the Project; (2) it will manage, coordinate and fully complete the design; (3) Design Build Entity will cause its Design Professionals to describe and depict the final design for the Project, as approved by CMWD, in Construction Documents which will include all information required by the building trades to complete the construction (other than such details customarily developed by others during construction); and (4) it will manage and timely construct the Project in consideration for CMWD payment of the Contract Sum. Design Build Entity agrees that Construction Documents will be complete, coordinated and accurate. 10.3.11 Design Build Entity has reviewed carefully all documents forming part of this Agreement, as existing on the Contract Date, including without limitation all Appendices, Exhibits and Schedules. Subject to the terms of this Agreement, the Design Build Entity agrees that the design and construction tasks and milestones are reasonable and feasible. The Design Build Entity agrees it can perform the Work for the Contract Sum and can meet the deadlines and milestones imposed by Article 5 of this Agreement. 10.3.12 Design Builder agrees that the Work will be of good quality, free of defects and will conform to the requirements of the Contract Documents. Work not conforming to the requirements of the Contract Documents, including substitutions in design or construction not specifically approved or authorized by CMWD in advance, may be considered defective. 10.3.13 Design Builder agrees to correct any error(s), omission(s), or deficiencies in the Contract Documents or Construction Documents, not specifically described in the Non Voluntary Changes and Substitutions Section of the Technical Proposal, at no additional cost to CMWD; however, this provision in no way limits the liability of Design Builder. 10.3.14. A. The Design Builder acknowledges that CMWD furnished a Revegetation Plan and a Conceptual Plant Layout for the Project which: .1 Were completed in 2015 by design professionals, retained by CMWD to prepare such documents; .2 Are being supplied to the Design Builder for the primary purpose of conveying CMWD's design intent and permit requirements for the Project; Agreement Between CMWD and Habitat Restoration Sciences, Inc., "Design Build Entity" for Calavera Preserve Palm Grove Removal and Native Plant Restoration 9 .3 Will substantially be used to form the basis of the Construction Documents including final plans and specifications for the Project, but should not be deemed inclusive of all Work to be completed by the Design Builder; and, .4 Are allowed to be modified by the Design Builder and/or the Design Builders' Design Professional Subcontractors, without penalty in the selection process, if necessary to satisfy performance criteria and/or life and safety requirements. B. Design Builder agrees that Design Builder and Design Builder's Design Professional Subcontractors, shall: .1 Perform a review and analysis of the Preliminary Drawings and Preliminary Design Report, to the level and detail necessary, to determine whether, in the judgment of the Design Builder and the Design Builder's Design Professional Subcontractors, the design work that will be carried over into the Design Builder's Work meets the standards of professional care necessary to fulfill State of California Business and Professions Code requirements; .2 Complete the Construction Documents as required pursuant to the Contract Documents, including design of portions of the Work that are not defined in the Preliminary Drawings and Preliminary Design Report but are required to achieve the performance criteria and complete the Project; .3 Assume responsible charge of work and/or responsible control over work content for the Construction Documents, as such terms may be generally defined in Sections 5535.1 and 6703 of the State of California Business and Professions Code, including all design work that is incorporated into the Construction Documents from the Preliminary Drawings and Preliminary Design Report; .4 Place their signature and seal over the completed Construction Documents as required pursuant to State requirements for each respective professional function or discipline; .5 Prepare, sign, seal and submit new calculations, and other required design documentation, as necessary, to replace the current calculations and design documentation which support the Preliminary Drawings and Preliminary Design Report; and, .6 Agree to assume all normal design liability for potential errors and omissions regarding the preparation of the entire Construction Documents. 10.3.15 Design Build Entity certifies it is aware of the requirements of the Immigration Reform and Control Act of 1986 (8 USC sections 1101-1525) and has complied and will comply with these requirements, including, but not limited to, verifying the eligibility for employment of all agents, employees, subcontractors, and consultants that are included in this Contract. 10.3.16 Each and every provision of law and clause required by law to be inserted in this Contract shall be deemed to be inserted herein and included herein, and if, through mistake or otherwise, any such provision is not inserted, or is not correctly inserted, then upon application of either party, the Contract shall forthwith be physically amended to make such insertion or correction. 10.3.17 The information in this Agreement supplied by the Design Build Entity is correct and complete in all material respects. Agreement Between CMWD and Habitat Restoration Sciences, Inc., "Design Build Entity" for Calavera Preserve Palm Grove Removal and Native Plant Restoration 10 Article 11 Claims and Lawsuits 11.1 All claims by Design Builder for shall be resolved in accordance with the provisions Article 4 of the General Conditions. Notwithstanding the provisions of this Article, all claims shall comply with the Government Tort Claim Act (section 900 et seq., of the California Government Code) for any claim or cause of action for money or damages prior to filing any lawsuit for breach of this agreement. (A) Assertion of Claims. Design Builder hereby agrees that any contract claim submitted to CMWD must be asserted as part of the contract process as set forth in this agreement and not in anticipation of litigation or in conjunction with litigation. (B) False Claims. Design Builder acknowledges that if a false claim is submitted to CMWD, it may be considered fraud and the Design Builder may be subject to criminal prosecution. (C) Government Code. Design Builder acknowledges that California Government Code sections 12650 et seq., the False Claims Act, provides for civil penalties where a person knowingly submits a false claim to a public entity. These provisions include false claims made with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of the information. (D) Penalty Recovery. If CMWD seeks to recover penalties pursuant to the False Claims Act, it is entitled to recover its litigation costs, including attorney's fees. (E) Debarment for False Claims. Design Builder hereby acknowledges that the filing of a false claim may subject the Design Builder to an administrative debarment proceeding wherein the Design Builder may be prevented from further bidding on public contracts for a period of up to five years. (F) Carlsbad Municipal Code. The provisions of Carlsbad Municipal Code sections 3.32.025, 3.32.026, 3.32.027 and 3.32.028 pertaining to false claims are incorporated herein by reference. (G) Debarment from Other Jurisdictions. Design Builder hereby acknowledges that debarment by another jurisdiction is grounds for CMWD to disqualify the Design Builder from participating in future contract bidding. Agreement Between CMWD and Habitat Restoration Sciences, Inc., "Design Build Entity" for Calavera Preserve Palm Grove Removal and Native Plant Restoration 11 NOTARIAL ACKNOWLEDGMENT OF EXECUTION BY ALL SIGNATORIES MUST BE ATIACHED (CORPORATE SEAL) DESIGN-BUILDER/CONTRACTOR: Habitat Restoration Sciences, Inc. A California corporation (name of Design-Builder/Contractor) California Lice7 #: A a~,:~~J,..lt24'2W1~ By: ,N'v ""~ By:~~=--- 7 (sign here) ~b</l ~ le rna.Jihews . (pri~ me and title) 5eccce:F~.-v; ATIEST: ~-/'t)cn_ BAABAENL~-v Secretary Pl.EASE SEE NOTARY ATTACH[\IIEN1' President or vice-president and secretary or assistant secretary must sign for corporations. If only one officer signs, the corporation must attach a resolution certified by the secretary or assistant secretary under the corporate seal empowering that officer to bind the corporation. APPROVED AS TO FORM: CELIA A. BREWER General Counsel By: Deputy General Counsel Agreement Between CMWD and Habitat Restoration Sciences, Inc., "Design Build Entity" for Calavera Preserve Palm Grove Removal and Native Plant Restoration 12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of .S 0\ V\ Die.30 ) I onfM'( asl :k)/{o before me, &vcU\DOl ~tAoCof"U N0t-a.(y'tbbl1G I Date Hfre Insert Name and Tit/Jot the Officer J personally appeared \L:Ot).Q,clr:: VY\a.\:th..ew s C\~ VY\ac}LGn'(af<. Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) ~/are subscribed to the within instrument and acknowledged to me that hefshe/they executed the same in ~er/their authorized capacity(ies), and that by ~r/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my Signature of Notary Public Place Notary Sea/ Above ~-----------------------------OPTIONAL~--------------------------~ Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document:--------------------------- Document Date: ------------------Number of Pages: _____ _ Signer(s) Other Than Named Above: ----------------------- Capacity(ies) Claimed by Signer(s) Signer's Name: ___________ _ Signer's Name: ___________ _ D Corporate Officer -Title(s): ______ _ D Corporate Officer -Title(s): ______ _ D Partner -D Limited D General D Partner -D Limited D General D Individual D Attorney in Fact D Individual D Attorney in Fact D Trustee D Guardian or Conservator D Trustee D Guardian or Conservator D Other: ______________ _ D Other: -------------- Signer Is Representing: ________ _ Signer Is Representing: ________ _ ~~~~~~~~~~~ ©2015 National Notary Association· www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 :heck A License -License Detail -Contractors State License Board Page 1 of. Contractor's License Detail for License# 842661 DISCLAIMER: A license status check provides information taken from the CSLB license database. Before relying on this information, you should be aware of the following limitations. Business Information HABITAT RESTORATION SCIENCES INC 4901 EL CAMINO REAL STE D CARLSBAD, CA 92008 Business Phone Number:(760) 479-4210 Entity Corporation Issue Date 07/14/2004 Expire Date 07/31/2016 license Status his license is current and active. II information below should be reviewed. C27 -LANDSCAPING A -GENERAL ENGINEERING CONTRACTOR Classifications Bonding Information Contractor's Bond ~,,,,••••••••••••· ~ ,,=,=,=-=·======= ,w••,wmmmmNm;; ,nmm-,mmnn.,.,•.m=<NN= m,,, ·=uw,uNu ,,,,, , .. w=--•hwh ...... . his license filed a Contractor's Bond with SURETEC INDEMNITY COMPANY. ···················, ond Number: 124884 IBond Amount: $15,000 !Effective Date: 01/01/2016 !Contractor's Bond Hist~r:L .......... ---·····---···-----.. ------,------·----··· ........... -------------------··------_ ---------.. ·------··--- Bond of Qualifying Individual This license filed Bond of Qualifying Individual number 5185150 for MARK RICHARD GIRARD in the amount of $12,500 with SURETEC INDEMNITY COMPANY. Effective Date: 07/21/2014 BQl's Bond History This license filed Bond of Qualifying Individual number 5185151 for KEVIN STUART DISABATINO in the amount of $12,500 with SURETEC INDEMNITY COMPANY. Effective Date: 07/21/2014 BQl's Bond History Workers' Compensation ! ifhisli~~nse h~;~;~kers ~;;-~p;nsation insurance with the BERKSHIRE HATHAWAY HOMESTATE INSURANCE COMPANY! policy Number:HAWC602420 \ !Effective Date: 07/15/2015 I ~xpire Date: 07/15/2016 11/Vorkers' c:ompensation. History... ...... . .. .. ... -.................................. .. ttps ://www2.cslb.ca. gov /OnlineServices/CheckLicenseII/LicenseDetail.aspx?LicNum=84 26... 5 /20/20 I, :heck A License -License Detail -Contractors State License Board Page 2 of. Personnel listed on this license (current or disassociated) are listed on other licenses. ttps://www2.cslb.ca.gov/OnlineServices/CheckLicenseII/LicenseDetail.aspx?LicNum=8426... 5/20/20 I, California Department of Industrial Relations -Contact DIR I-Go to Search Pagel of l Home Labor Law Cal/OSHA-Safety & Health Workers' Comp Self Insurance Apprenticeship Director's Office Boards Public Works Public Works Contractor (PWC) Registration Search This is a listing of current and active PWC registrations pursuant to Division 2, Part 7, Chapter 1 (commencing with section 1720 of the California Labor Code.) Enter at least one search criteria to display active registered public works contractor(s) matching your selections. Registration Year: Fiscal Year: 2015/16 PWC Registration Number: Contractor legal Name: restoration sciences Contractor License Lookup License Number: County: I Select County ··---Ji~ Search Results One registered contractor found . ............................. Details Legal Name View : HABITAT RESTORATION SCIENCES, INC. About DIR Who we are DIR Divisions, Boards & Commissions Contact DIR Reset County SAN DIEGO Work with Us Licensing, registrations, certifications & permits Notification of activies Public Records Act Export as: City Excel I PDF Expiration Date CARLSBAD 06/03/2015 06/30/2016 v2.20160101 Learn More Site Map Frequently Asked Questions Jobs at DIR Conditions of Use Privacy Policy Disclaimer Disability accommodation Site Help Copyright© 2015 State of California https://efiling.dir.ca.gov/PWCR/Search.action 5/20/2016 REVISED OIRIGINAL LABOR AND MATERIALS BOND and FAITHFUL PERFORMANCE BOND BOND N0.:0655816 Premium included in Performance Bond Board of Directors of the Carlsbad Municipal Water District has awarded to Habitat Restoration Sciences, Inc. (HRS) (hereinafter designated as the "Principal"), a Contract for: CALA VERA PRESERVE PALM GROVE REMOVAL AND NATIVE PLANT RESTORATION PROJECTCT NO. 3821 in the City of Carlsbad, in strict conformity with the drawings and specifications, and other Contract Documents now on file in the Office of the Secretary of the Carlsbad Municipal Water District and all of which are incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute said Contract and the terms thereof require the furnishing of a bond, providing that if Principal or any of their subcontractors shall fail to pay for any materials, provisions, provender or other supplies or teams used in, upon or about the performance of the work agreed to be done, or for any work or labor done thereon of any kind, the Surety on this bond will pay the same to the extent hereinafter set forth. NOW, THEREFORE, WE, HABITAT RESTORATION SCIENCES, INC. (HRS), as Principal, (hereinafter designated as the "Contractor"), and International Fidelity Insurance Company ________________ as Surety, are held firmly bound unto the Carlsbad Municipal Water District in the sum of Three Hundred Ten Thousand Dollars ($310,000), said sum being an amount equal to: One hundred percent (100%) of the total amount payable under the terms of the contract by the Carlsbad Municipal Water District, and for which payment well and truly to be made we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH that if the Contractor or his/her subcontractors fail to pay for any materials, provisions, provender, supplies, or teams used in, upon, for, or about the performance of the work contracted to be done, or for any other work or labor thereon of any kind, consistent with California Civil Code section 9100, or for amounts due under the Unemployment Insurance Code with respect to the work or labor performed under this Contract, or for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of the contractor and subcontractors pursuant to section 13020 of the Unemployment Insurance Code with respect to the work and labor, that the Surety will pay for the same, and, also, in case suit is brought upon the bond, reasonable attorney's fees, to be fixed by the court consistent with California Civil Code section 9554. This bond shall inure to the benefit of any of the persons named in California Civil Code section 9100, so as to give a right of action to those persons or their assigns in any suit brought upon the bond. Surety stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract, or to the work to be performed hereunder or the specifications accompanying the same shall affect its obligations on this bond, and it does hereby waive notice of any change, extension of time, alterations or addition to the terms of the contract or to the work or to the specifications. 13 In the event that Contractor is an individual, it is agreed that the death of any such Contractor shall not exonerate the Surety from its obligations under this bond. Executed by CONTRACTOR this dayof Vleuj CONTRACTOR: Pres ldeJtt:-, #@t'W Jl.esf:o14.k,oy\ ~d o',ganization of signatory) "'clelt<4. By:~~ - ., ( sign here) t.obe,v+;-k±J!e rn~s (print name here) 6evf ~ 1 ~/]J,'fdi (lPS.(oy-{Lhori (title and 6rganization of signatory) ;1>cia,c~ Executed by SURETY this -=21,J;=!J=h~--day of ____ ------'---'M=aL__ _____ , 20 ___1§_. SURETY: International Fidelity Insurance Company (name of Surety) 2400 E. Katella Ave., Suite 250 Anaheim, CA 92806 (address of Surety) 714-602-9170 (telephone number of /~7') By: /' _.,,···'t; slgnature of Atto Dale Harshaw, Attorney-in-Fact (printed name of Attorney-in-Fact) (attach corporate resolution showing current power of attorney) (Proper notarial acknowledgment of execution by CONTRACTOR and SURETY must be attached.) (President or vice-president and secretary or assistant secretary must sign for corporations. If only one officer signs, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that officer to bind the corporation.) APPROVED AS TO FORM: CELIA A. BREWER General Counsel Ir, / ,.-- By: ( __ .· ;-/ ·" ./ /. /. ., (:..,,0-Lc_......,1~.,L,,/, , _/ ,/ ,,/:1 Deputy General Counsel .• 14 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of ..S; ~ '(\ \)je.30 ) On Ma~ Q.S,:;Jo/&; before me, &vQ..C\DOl :\0,,olor"J Nc>t-a.(Vtobl,e, I Date Here Insert Name and Ti/fe of the Officer ~·1 personally appeared -"\le,-=--\)£ ____ """-"-(--'+-'---------\-'{V\'--"'-"-Cl_,_+-'-,\--'-'--'k""-"~"-"w~S.,,_' __.:Ct~Y)---'l..',..;-cl"-----'\f\llal-!----"ULL.{:-"'K--Gz=-1-.L.1/c.Lid..'t< «:) Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) ~are subscribed to the within instrument and acknowledged to me that ~/they executed the same in ~er/their authorized capacity(ies), and that by~er/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. and official seal. Signature of Notary Public Place Notary Sea/ Above -------------------------------OPTIONAL------------------------------ Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: ---------------------------- Document Date: -------------------Number of Pages: _____ _ Signer(s) Other Than Named Above: ------------------------ Capacity(ies) Claimed by Signer{s) Signer's Name: ____________ _ Signer's Name: ____________ _ D Corporate Officer -Title(s): ______ _ D Corporate Officer -Title(s): ______ _ D Partner -D Limited D General D Partner -D Limited D General D Individual D Attorney in Fact D Individual D Attorney in Fact D Trustee D Guardian or Conservator D Trustee D Guardian or Conservator D Other: ______________ _ D Other: _____________ _ Signer Is Representing: _________ _ Signer Is Representing: _________ _ 0'</s#r~~~~'!M~~~ ©2015 National Notary Association· www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of San Diego on May 24, 2016 ) before me, Maria Hallmark, Notary Public (insert name and title of the officer) personally appeared __ D_a_le_H_a_rs_h_a_w ___________________ _ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. MARIA HALLMARK WITNESS my hand and official seal. Commission # 1986082 j , ,_,_ Notary Public -California ~ z .,.~ San Diego County ~ J. ~--~ ••• Ml SOT"!· tx~r:s eu2 :2}&1t( {Seal) ............•........• ,.Nt·~·~~fS!~'ii~•t~:~gi~~i~~ti~i~~PANf············ •·ONE NEWARkCENfr~R. zorH••Fto6R N~WA~KiNEW JER$SYiOi162-s207· · KNOWALL MENBY THESE PR~kENTS: That INTE~NATl~NAL FIDEln-Y tN$URAr-.l¢~ boM~JN''( ;•a•~rporati9n ~iga(lizeij and existing under the laws 9f the State of New JersE)y, and ALLEGI-IENY CASl,JAL TY COMPANY a corporation organlzed ar)d existing underJhe laws of .the State of NEilW Jersey, having their pr:incipal 9ffice in the City ofNewark; New Jersey,.do hereby constitutEJ and appoint· · i thElir true ang ,lawful a~tor11~y(s)-ih-faqt to execute, SE)afand deliver for artd Oli its beha.lf as surety/any and an bo11c:ls c!Od undJrtfukif)gS, c9ntracts of lnde[j11;1Jty and other wntmgs obhgatocy !O the naturet~ereof, which are qr rnay bEl allo'«ed, rEJqu1rE1d or,pe_rm1ttecl by law, s!atutet• rule, regulation, ·contract or otherwise, . and the. execution of sucti 1nstrument(s) m pursuance of these presents; shall tie as bmdmg upon the said IN ERNATIONAL FlDELITYINSURANGE COMPANY•·· and ALLEGHENYQASUALTY COMPANY,· as .fully· and a,:nply,·to all inten\s ana. purposes, as if the same nad• been duly.·executed .. and ack~owledged by tl)ei( regularly 71ect7d officers at theirprincipal offices. ••••· .·· · i > ... ·· • · ··.. .· ·.••. · •.. · < ·· •·· · ·. ·.· < .. • ··.. \. \ ·.... (\ \ . ·•· > ... . ••... ·· ... ·.. / •... This Power of Attomey is executed, and may be revoked, pursuant to and by authority of .the Sy-Laws of INTE;RNA TIONAL. FIDELITY INSURANCE .· COMPANY and ALL.EGHENY CASUALTY COMPANYand is grant~d ynder and by autl1cifity of Jhe foflowing resolution ad9ptei:t.by }he Bqard of.Directors •. •o. f IN ... TE.RNA .... Tl.·O. · NAL F.· IDE. LIT. Y .. lN····S· URANC·E····.· C. 0. MP·•.AN. Y. ·.at··.a m .. eetm. g duly. he.Id on the 20.t .. h.d··· ay of. Juf.y, 2010 and .by the B. oard.•.· ... ofD1rector$ Qf AL.LEGHENY CASUALTY COMPANY ata meeting duly held mrthe 1.5th day of August, 2000: i> .• · ...... ·.•. . .•. ·.··• ·. .••• 0RESOLVED, that. O) tha Presl~e~f. Vibe President: Chief Executive ()ffi~r br Secr~tafY of the Corporation $hill ha~~ the power to appoint. and to revoke .the appointrnel')ts .of, Attorneys-in,Fact or agents with power and authority as defi.ned ot llmited itj theirrespective poweirs of attorney, and to execute pry behalf Off he ..... C· pr·p·. o·r .. a.tioh·. ·a. nd. affi ... 1x .. th·e.· .. C. orp. o ... r·a.·ti· ·.on·s. seal.th .. eret·o· •. 90··· nds. '. u·n. de. rt. a .. ··k···· ings·; .... ··r· ecog.· ni.zan.ce·s ...... ; co. n.·.tracts····. of 1ndem. · ... ·. nitv. ··.a .. nd other wrtt.ten··· obi. i.ga. lions .in. the <.h. atu. re ..... thereo·f· O.r re.la.le. d. ·.• .. tnere .. t.9; .. an·d .... (.2). a. ny.suq.h O·ffi.1c.er·ey· of. th.e Corp. o .. ra .. ti!)·. n ma···y· a. pp·o· in.·t·a··.n·····d· r .. evol<e. · t.he.·a .... PP.·O. intrn .. enfs 9·.f jo. in·t.~.co.ntro.f c.us. !od.ians, ·a. ge .. nts for· ... acc·e.9p .. tan. ce of p·r·o·· cess, and···At.to·r.neys-1.n-fa.ct.yv1th. a.ut.hqntyt.o exe .. cute wa.1vers. ;a. l)d ... c.on .. sents.·· on ... beha.lf. of th. e. Corpora~.on. ; .. · c!nd (.3). the .. s,·g .. natu .. r.e o .. >f any such Officer of. the. Corporation and the Corg9ratiori'f seal may be .affixed py f?ics!m1le to any poW!:lr of attorney .or certificabon gtver for the executron of any I?. ond .. •. un. dertak1ng .. , recog·n···1zanq.e, :.co ... ntra .. ct.o. f 11;1d. 13m.· .. mty ·•· o. r o·t·h. e.r· w. ntt.en .. o·b .. hga. ti .. on.111 .. t.l,e nat.ure .. · .t~e. _re ... of p. r relate.ct th. ere.to, su.ch ... s··· 1gn .. at.ure .a ... f;ld. s .. e;::i.·l·S v.·.he··•·n. so u.sed .whethe .. r her!3to.fo .. re pr.· .. ~.ereaft·e· .. r.; be1ng.her~by a .•. d .. o. p. ted ... b .. ·Y. th .. e .. ··.·.c ... < o. rpon;!bo .. n .. ·. as the. ..·.o.·ng1na. ··. '. ··.s· .. 1gna.· t·u·r···e· · of suc ... h ... ·.• .. ·. officer a.n .... d ... the ong1nal seal of the Corporation, to be valid andbmd1ng upon the Corporat1onw1th the same force and effect as thoughm.inuany affixed." / .... ··.. · .•.. ••• · · · ··· · · · .IN VJITNES; w~EREOF; INTER~ATIONJL p16EL!TY INslJRANCE; COMPANY and ALLEG8~~'( f}su.A.~TY COMPANY ~~v~ each exebutid ahd attested.these presemts OnthJs 31st d~y of[)ecerpber; ?915, · ···•• ) ··. · ·· • •. ) i · ··•. ···•. · .. •·· ·· .. · .. •.•· ·· ····· · · ··•. •·· ···· •·· ··· · ··· · · C)n this 31st day of Decernbtt2Q15/b~fbre mEl (;~~~ tie jndtvidJa1wh~ ~xecJted 1hepreJ$ding inS\nlment, to m~ Jerso~ally knbwtj, ~oa; being by me dLly sworp, s"'id he is the. therein describedand authcifized officl!li' oflNTE:RNATJONAL flDELITY INSURANCE . COMPANY aM ALLEGHENY CASU1LTY COMPANY; that the seals affixed tq:Said instrument are tile ComoratEl $eals. of said <::omp;'inies; th;'it the said Corporate Seals and his signature were .duly affil<ed by order C>f the Boards ofDirectqrs Of S;'iid <;:oh"lpanles, d~~I A NOTARY PUBUC or= NEW JERSEY fll!y Commission.Expire~ t\pril 1p, 2019··· REVISED ORIGINAL Bond No. 0655816 Premium: $4,241.00 FAITHFUL PERFORMANCE/WARRANTY BOND Board of Directors of the Carlsbad Municipal Water District has awarded to Habitat Restoration Sciences, Inc. (HRS) (hereinafter designated as the "Principal"), a Contract for: CALA VERA PRESERVE PALM GROVE REMOVAL AND NATIVE PLANT RESTORATION PROJECTCT NO. 3821 in the City of Carlsbad, in strict conformity with the contract, the drawings and specifications, and other Contract Documents now on file in the Office of the Secretary of the Carlsbad Municipal Water District, all of which are incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute said Contract and the terms thereof require the furnishing of a bond for the faithful performance and warranty of said Contract; NOW, THEREFORE, WE, HABITAT RESTORATION SCIENCES, INC. (HRS), as Principal, (hereinafter designated as the "Contractor"), and International Fidelity Insurance Company _______________ as Surety, are held firmly bound unto the Carlsbad Municipal Water District in the sum of Three Hundred Ten Thousand Dollars ($310,000), said sum being an amount equal to: One hundred percent (100%) of the total amount payable under the terms of the contract by the Carlsbad Municipal Water District, and for which payment well and truly to be made we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION IS SUCH that if the above bounden Contractor, their heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by, and well and truly keep and perform the covenants, conditions, and agreements in the Contract and any alteration thereof made as therein provided on their part, to be kept and performed at the time and in the manner therein specified, and in all respects according to their true intent and meaning, and shall indemnify and save harmless the Carlsbad Municipal Water District, its officers, employees and agents, as therein stipulated, then this obligation shall become null and void; otherwise it shall remain in full force and effect. As a part of the obligation secured hereby and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fees, including reasonable attorney's fees, incurred by the District in successfully enforcing such obligation, all to be taxed as costs and included in any judgment rendered. Surety stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract, or to the work to be performed there under or the specifications accompanying the same shall affect its obligations on this bond, and it does hereby waive notice of any change, extension of time, alterations or addition to the terms of the contract or to the work or to the specifications. 15 In the event that Contractor is an individual, it is agreed that the death of any such Contractor shall not exonerate the Surety from its obligations under this bond. Executed by CONTRACTOR this 1-,C) ~ day of \'(\ Clt.j ,20Th_. CONTRACTOR: Habitat Restoration Sciences, Inc. (name of Contractor) By:~---~ sign here) (print name here) Pre~·~» ~-w e.e~tv~ (Title and Organization of Signatory) S~~ By:~~~ (sign here) Yloba.f-~~ ~ws (print name here) Executed by SURETY this __ 2_4_th __ day of May 2Q16 ---------------' -- SURETY: International Fidelity Insurance Company (name of Surety) 2400 E. Katella Ave., Suite 250 Anaheim, CA 92806 (address of Surety) 714-602-9170 (telephone number of Surety) Dale Harshaw, Attorney-in-Fact (printed name of Attorney-in-Fact) Seu-~ ) flo.b1'W t2e.SH>~ . . (T. 1 d O · . f . t ) cd> . ..___,,..,, (Attach corporate resolution showmg current power of 1t e an rgamzat1on o s1gna ory ~ vr,.._ tt ) a omey. (Proper notarial acknowledgment of execution by CONTRACTOR and SURETY must be attached.) (President or vice-president and secretary or assistant secretary must sign for corporations. If only one officer signs, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that officer to bind the corporation.) APPROVED AS TO FORM: CELIA A. BREWER General Counsel I ,./---~ By: ,/_, ,-;// / / / / .,-, ,\ Deputy Genera(Counsel '' 16 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of ,S ~ 1{\ \)je.ao ) on{'i\a\J 9-5r9of(o beforeme, SavC\C\DOl ~o..oCcn'·J Not--o..iey'Wbl,G 1 f Date Here Insert Name and Title of the Officer personally appeared --\.-.-1<....L.ll,.,,c.:s....i1----c1------1-....!..._:!.'!f.!l""-.}+~'5,._:u....~.:S=-__i;~~i..,..L.-.L..!.-l.!.&11.-1!..,_!,.~4--J~JL..:i.....; Name(s) of Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) ~/are subscribed to the within instrument and acknowledged to me that h~/they executed the same in +tis4ler/their authorized capacity(ies), and that by lltsll<ter/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. and official seal. Place Notary Sea/ Above ----------------------------~OPTIONAL------------------------------ Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document:---------------------------- Document Date: -------------------Number of Pages: _____ _ Signer(s) Other Than Named Above: ------------------------ Capacity(ies) Claimed by Signer(s) Signer's Name: ____________ _ Signer's Name: ____________ _ D Corporate Officer -Title(s): ______ _ D Corporate Officer -Title(s): ______ _ D Partner -D Limited D General D Partner -D Limited D General D Individual D Attorney in Fact D Individual D Attorney in Fact D Trustee D Guardian or Conservator D Trustee D Guardian or Conservator D Other: ______________ _ D Other: _____________ _ Signer Is Representing: _________ _ Signer Is Representing: _________ _ ~ms,~~~~~™~ ©2015 National Notary Association· www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of San Diego On May 24, 2016 before me, Maria Hallmark, Notary Public (insert name and title of the officer) personally appeared __ D_a_le_H_a_rs_h_a_w ___________________ _ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signatu~ (Seal) MARIA HALLMARK ~• Commission # 1986082 i ;~-:_. Notary Public -California I z .,. San Diego County ? J. :·: 0 0 0Ml so~°l; tx~r:s :ua t2}%1~l .·.· , . ..,iow1te·di7\A.]IOB.NEJX·<······ ·····.··<··•iiNr¢~~:~t~t~,f ~~!1Jt~~j~~it1>~~~.~~~N~•····••••······· ............... ··· .oNE N$WARK CENt~R. 20TH FlbOR NEWARK, NEWJERs~v. 01162-520{ · KNOWALL ME~ 13'( THESE PRESENTS: That INTERNATIONAL FIDELITY INSU~ANCE . COMPANY; a corpor~tion ~rganized and existing under the laws of· tt,e State of Ne~ Jersey, and ALLEGHENY CASUAL TY COMPANY a corpon:ition organized and.existing under the laws of the State of New jersey, having· their principalofflce Jn thEl City of Newark, New Jersey, do he(eby ccinsUtute and appoin! · their true ang Jawful a~torney( S)-ill~fact to ~xecute, sia,Land deliver for and. on its h~lla,lf as surety,. any a.nd all bonds and undert~ki11gs1 contracts ofinderil~ity an.d oth·.·er v,,ntin··· g .. s· obhgalofY m tt,e na. tu. re thereof;· w ... h1ch.a .. r··e .. or m.·a· ybe a.llowed .. • re~u1re. d or pe·r·m1ttei:I ... by Ja·w·, statute, rule.;. regulatton, con .. tract or otherwise, and . t. he·.··e· xe.cu. tio.n of.su··.cn. in. strum.en!. (s. )·i·n·. p u .. rs.uan. c.e. ()f. th. ese. p.res. ents·;··. sh·a· 11 b.· e as. ·b·. lnd· .. ing. up.·on th.· e. said .I.NT. E. R ..... NA TI·. O.N· .AL. FIDELITY .INS. UR .. AN. ·.CE. COMPANY•.and ALLEGHENY CASUALTY COMPANY,· as fully and amply, to all intents ana purposes, as if the same had been duly• executed and acknowledged by their regu\arly elected officers attheirprincipal offices.. ..· · ··· .. ··•.·• .. . .• ·. . ·· · .. ·•· •· ...••. .·· .·•· . . ·····:. . .· · . ( ··· . ·. •··• ... .·.. . ·· . · .• This Power of Attorne•(ls executed; and may be revoked,, pursuant to and QY authprit\l of tlie By-L~ws of INTERNATIONAL FIDELITY INS~RANCI= COMPANY and ALLEGHENY CASUAL TY COMPANY and 1s. granted 1mder. and by authorily of the following rl:lsolubon adopted by .. the l:!oard of Directors .o. f I. N. TER. NAT .. I.ONA!:., FIDE. LIT.Y IN .. SUR. ANC .... E C.QMP.ANY··.· ata mee. Ung duly held cm the 20th day of July, 2010 and.by the Board of Directors .of ALLEGH··· ENY CASUALTY COMPANY ata meeting duly held on the 15th day of August, 2000: · ·.. · ... ·· · ····. ·· ··.·.•. "RESOLVED, thaf (1) thi President: Vide Presidef'lt, Cbief Executi~e Officer or Secretary ofthe Corporation ~haUhave the powet. to appoint, and to re\loke ·. . the appointments of, l'.ttorneys-in-,Fact or agents with.powerand authority. as defined or Jimited in tlieinespective powers otattorney, and .tQ execute on behalf oMhe. Cor·p. o. ration. and. affix· .. · th. e Corp. oration's. s.· eal th .. e. ret.o,.<Q·o .. nd·s.· , u. ·. n. dert. a .. k.ings, rec;ogn. i~an ... · .. c.e. $ .. , co. n .... t .. ract. s.. .o.·f. .1n_tje·m· nitv.· ·.·anq 9. t.h·e·. r wr. itten b·b·li·g· ptions·····in the··· . nature .there. o·f·. orre. lated .th. ere.to; .. • .a. nd. .(2. ). any suqh. Offi.1.ce. r~. of th.e C. · orporc!ti9. n ma .. y a ... PP.·O· in. t a. n. ·d.· rev .. o.ke the. a .. pp·o. mtm.enfs 9f J.·01.nt·-.·contro. I c.·u···st.o.·d· 1·a· n. s. , age .. nts .. for acceptance of process, a.nd Attorneys0in-fact yv1th authonty to execute waivers ;al}d.consents on behalf of the Corporation; ~nd J3) the s1gnatyre ol any such Officer of. the Corporation andJhe CorP.9rat1ort'~. seal may ,be .affixed ~y f9cs!m1le to any power of attorney or certification g1veri for the execubon of any bond, undertaking; rec···.ogniza .. nce, contract of. 11;1d.·emn. 1ty or other.wntte. n ob .. hga. ~on II'.) the .. nature.· .. th~re. of .or r.··e. la. te.· d th.ere .. to.· , su .. ch .s. 1gn··· ature .. ai:id ... s. eal. s w.hen so• used .whether her!'ltofore. 9r. ~.ereafter, being her~by <!d.opted by th. e. Gorporatio·. n as the. onginal. s1gn·a··.t·u· .re of such officer and the original se. al of the Corporation, to be valid. and binding upon the Corporation with the same force and effect as though manually affixed." ·· · · ·. ·· • · · ... • IN WITNESS WHEHEOF, ,INTE~NA116NAL f=IDEUTY INSURANCE. COMPANY and ALl,~GHENY CASUALTY COMPANY h;ve each ~xecut~d and. attested these presents on,this 3.1st day of December; 2015. ··· · · ·• · · .·. · .•· · · · . .· ... . . ROBERT W. MINSTER .· . . . Chief Executive Officer(lnternational Fidelity.· Insurance Company) and President (Allegfteny . <::asualty Ce>mpany) · On .. ttjis 31st day of b~cemb~r 2015, before me came the ihdlvi&uaJ who executed the preceding instrument. to me personally knqwti,i~nd, being by me duly sworn, said he is the Iherein d.escribed and authe>rized officer oL INTERNAT!ONAL. FIDEUTY ·INSURANCE. COMPANY and ALLEGHENY CASUALTY . COMPANY; that the i,l;lals. affixed to said ini,trument are.the Corporatl;l Seals of said Companies; that ttie $aid Corporate Seals and hi$ signature were duly affixed by order of the Boards of Directors of said Companies, ·::.J Company Profile Company Profile Company Search Company Informafion Old Company Names Agent for Service Reference Information NAIC Group List Lines of Business Workers' Compensation Complaint and Request for Action/ Appeals Contact Information Financial Statements PDF's Annual Statements Quarterly Statements Company Complaint Company Performance & Comparison Data Company Enforcement Action Composite Complaints Studies Additional Info Find A Company Representative In Your Area View Financial Disclaimer COMPANY PROFILE Company Information INTERNATIONAL FIDELITY INSURANCE COMPANY ONE NEWARK CENTER 20TH Fl NEWARK, NJ 07102-5207 Page 1 of 1 Old Company Names Effective Date Agent For Service DOROTHY O'CONNOR-MANSON 2999 OAK ROAD SUITE 820 WALNUT CREEK CA 94597 Reference Information NAIC #: California Company ID #: Date Authorized in California: I License Status: Jcompany Type: ~tate of Domicile: back to top NAIC Group list NAIC Group #: 4705 Lines Of Business 111592 I 14341-4 I 102/09/1996 I II UNLIMITED-NORMAL l II Property & Casualty I II NEW JERSEY I AIA Holdings Inc Grp The company is authorized to transact business within these lines of insurance. For an explanation of any of these terms, please refer to the glossary. SURETY back to top © 2008 California Department of Insurance https://interactive.web.insurance.ca.gov/companyprofile/companyprofile?ev ... 5/27/2016 OPTIONAL ESCROW AGREEMENT FOR SECURITY DEPOSITS IN LIEU OF RETENTION This Escrow Agreement is made and entered into by and between the Carlsbad Municipal Water District whose address is 5950 El Camino Real, Carlsbad, California, 92008, hereinafter called "District" and whose address is "Contractor" and hereinafter called -------------------------whose address 1s hereinafter ---------------------------called "Escrow Agent." For the consideration hereinafter set forth, the District, Contractor and Escrow Agent agree as follows: 1. Pursuant to section 223 00 of the Public Contract Code of the State of California, the Contractor has the option to deposit securities with the Escrow Agent as a substitute for retention earnings required to be withheld by the District pursuant to the Construction Contract entered into between the City and Contractor for CALA VERA PRESERVE PALM GROVE REMOVAL AND NATIVE PLANT RESTORATION PROJECTCT NO. 3821 in the amount of dated (hereinafter referred to as the "Contract"). Alternatively, on written request of the Contractor, the District shall make payments of the retention earnings directly to the Escrow Agent. When the Contractor deposits the securities as a substitute for Contract earnings, the Escrow Agent shall notify the District within 10 days of the deposit. The market value of the securities at the time of the substitution shall be a least equal to the cash amount then required to be withheld as retention under the terms of the contract between the District and Contractor. Securities shall be held in the name of the District and shall designate the Contractor as the beneficial owner. 2. The District shall make progress payments to the Contractor for such funds which otherwise would be withheld from progress payments pursuant to the Contract provisions, provided that the Escrow Agent holds securities in the form and amount specified above. 3. When the District makes payment of retentions earned directly to the Escrow Agent, the Escrow Agent shall hold them for the benefit of the Contractor until such time as the escrow created under this contract is terminated. The Contractor may direct the investment of the payments into securities. All terms and conditions of this agreement and the rights and responsibilities of the parties shall be equally applicable and binding when the District pays the Escrow Agent directly. 4. The Contractor shall be responsible for paying all fees for the expenses incurred by the Escrow Agent in administering the Escrow Account and all expenses of the District. These expenses and payment terms shall be determined by the District, Contractor and Escrow Agent. 5. The interest earned on the securities or the money market accounts held in escrow and all interest earned on that interest shall be for the sole account of Contractor and shall be subject to withdrawal by Contractor at any time and from time to time without notice to the District. 6. Contractor shall have the right to withdraw all or any part of the principal in the Escrow Account only by written notice to Escrow Agent accompanied by written authorization from District to the Escrow Agent that the District consents to the withdrawal of the amount sought to be withdrawn by Contractor. 7. The District shall have a right to draw upon the securities in the event of default by the Contractor. Upon 17 seven days' written notice to the Escrow Agent from the District of the default, the Escrow Agent shall immediately convert the securities to cash and shall distribute the cash as instructed by the District. 8. Upon receipt of written notification from the City certifying that the Contract is final and complete and that the Contractor has complied with all requirements and procedures applicable to the Contract, the Escrow Agent shall release to Contractor all securities and interest on deposit less escrow fees and charges of the Escrow Account. The escrow shall be closed immediately upon disbursement of all moneys and securities on deposit and payments of fees and charges. 9. The Escrow Agent shall rely on the written notifications from the District and the Contractor pursuant to sections ( 1) to (8), inclusive, of this agreement and the District and Contractor shall hold Escrow Agent harmless from Escrow Agent's release, conversion and disbursement of the securities and interest as set forth above. 10. The names of the persons who are authorized to give written notices or to receive written notice on behalf of the District and on behalf of Contractor in connection with the foregoing, and exemplars of their respective signatures are as follows: For District: For Contractor: For Escrow Agent: Title Name Signature Address Title Name Signature Address Title Name Signature Address FINANCE DIRECTOR 1635 Faraday Avenue, Carlsbad, CA 92008 At the time the Escrow Account is opened, the District and Contractor shall deliver to the Escrow Agent a fully executed counterpart of this Agreement. 18 IN WITNESS WHEREOF, the parties have executed this Agreement by their proper officers on the date first set forth above. For District: For Contractor: For Escrow Agent: Title PRESIDENT ------~...=c====-'-"------ Name Signature Address 1200 Carlsbad Village Drive, Carlsbad, CA 92008 Title Name Signature Address Title ----------------- Name ----------------- Signature _______________ _ Address ---------------- 19 DESIGNATION OF SUBCONTRACTOR AND AMOUNT OF SUBCONTRACTOR'S BID ITEMS (To Accompany Proposal) CALA VERA PRESERVE PALM GROVE REMOVAL AND NATIVE PLANT RESTORATION PROJECTCT NO. 3821 The Bidder certifies that it has used the sub-bid of the following listed subcontractors in preparing this bid for the Work and that the listed subcontractors will be.used to perform the portions of the Work as designated in this list in accordance with applicable provisions of the specifications and section 4100 et seq. of the Public Contract Code, "Subletting and Subcontracting Fair Practices Act." The Bidder further certifies that no additional subcontractor will be allowed to perform any portion of the Work in excess of one-half of one percent (0.5%) of the Bidder's total bid, or in the case of bids or offers for construction of streets and highways, including bridges, in excess of one-half of one percent (0.5%) or ten thousand dollars ($10,000), whichever is greater, and that no changes in the subcontractors listed work will be made except upon the prior approval of the Agency. SUBCONTRACTOR'S BID ITEMS ··< Amount of Subcontractor's Work by Subcontracfur Name and Lic,fnse No. and ... · · Subcontractor Location of Business .. in Dollars* Portion of Work ······················ . Classification* ........... Palm Removal Sutton Tree Service CA Lie 591236 $105,000.00 C-61/D-49 Page __ 1 _ of_l_ pages of this Subcontractor Designation form * Pursuant to section 4104 (a)(2)(A) California Public Contract Code, receipt of the information preceded 20 :heck A License -License Detail -Contractors State License Board Page 1 of Contractor's License Detail for License# 591236 DISCLAIMER: A license status check provides information taken from the CSLB license database. Before relying on this information, you should be aware of the following limitations. his license is current and active. II information below should be reviewed. Business Information SUTION'S TREE SERVICE INC 2236 SOUTH SAN TE FE A VE VISTA, CA 92084 Business Phone Number:(760) 941-3992 Entity Corporation Issue Date 03/27/1990 Expire Date 03/31/2018 License Status Classifications Bonding Information Contractor's Bond ~his license filed a Contractor's Bond with AMERICAN CONTRACTORS INDEMNITY COMPANY. 1Bond Number: 206106 IBond Amount: $15,000 !Effective Date: 01/01/2016 lcontractor'sBomi ):listory ,-........ . Bond of Qualifying Individual he qualifying individual DEAN LINDSEY SUTTON certified that he/she owns 10 percent or more of the voting stock/membership nterest of this company; therefore, the Bond of Qualifying Individual is not required. Effective Date: 03/27/1990 Workers' Compensation phis license has workers compensation insurance with the CALIFORNIA INSURANCE COMPANY !Policy Number:4606277901 iEffective Date: 08/07/2012 !Expire Date: 08/07/2016 :Workers'. Compensation History ····-·······-.. ········-· ....... .,, ....... ,. __ ,,, ...... , .. ,. __ ._ .... ,,,,,,, .. ---········-··· ......................................... .,,-................... .,-,, ... , .... ,,,, .... ,, .. -., Personnel listed on this license (current or disassociated) are listed on other licenses. ttps://www2.cslb.ca.gov/OnlineServices/CheckLicenseII/LicenseDetail.aspx?LicNum=5912... 5/20/201, California Department of Industrial Relations -Contact DIR Pagel of l I .. Go to Search Home Labor Law Cal/OSHA .Safety & Health Workers' Comp Self Insurance Apprenticeship Director's Office Boards Public Works Public Works Contractor (PWC) Registration Search This is a listing of current and active PWC registrations pursuant to Division 2, Part 7, Chapter 1 (commencing with section 1720 of the California Labor Code.) Enter at least one search criteria to display active registered public works contractor(s) matching your selections. Registration Year: PWC Registration Number: Contractor Legal Name: License Number: County: Search Results One registered contractor found. Legal Name SUTION'S TREE SERVICE, INC. About DIR Who we are DIR Divisions, Boards & Commissions Contact DIR Fiscal Year: 2015/16 Contractor License Lookup Reset Work with Us Licensing, registrations, certifications & permits Notification of activies Public Records Act Export as: Excel I PDF Registration Expiration Date Date 10/29/2015 06/30/2016 v2.2Q160101 Learn More Site Map Frequently Asked Questions Jobs at DIR Conditions of Use Privacy Policy Disclaimer Disability accommodation Site Help Copyright© 2015 State of California https :// efiling.dir .ca.gov /PW CR/Search.action 5/20/2016 by an asterisk may be submitted by the Bidder up to 24 hours after the deadline for submitting bids contained in the "Notice Inviting Bids." BIDDER'S STATEMENT RE DEBARMENT (To Accompany Proposal) CALA VERA PRESERVE PALM GROVE REMOVAL AND NATIVE PLANT RESTORATION PROJECTCT NO. 3821 1) Have you or any of your subcontractors ever been debarred as an irresponsible bidder by another jurisdiction in the State of California? yes no 2) If yes, what was/were the name(s) of the agency(ies) and what was/were the period(s) of debarment(s)? Attach additional copies of this page to accommodate more than two debarments. party debarred agency period of debarment party debarred agency period of debarment BY CONTRACTOR: Habitat Restoration Sciences, Inc. :esident 21 (print name/title) Page _1_ of_l_ pages of this Re Debarment form 22 BIDDER'S DISCLOSURE OF DISCIPLINE RECORD (To Accompany Proposal) CALAVERA PRESERVE PALM GROVE REMOVAL AND NATIVE PLANT RESTORATION PROJECTCT NO. 3821 Contractors are required by law to be licensed and regulated by the Contractors' State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural defects must be filed within 10 years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, Contractors' State License board, P.O. Box 26000, Sacramento, California 95826. 1) Have you ever had your contractor's license suspended or revoked by the California Contractors' State license Board two or more times within an eight year period? 4~ yes 2) Has the suspension or revocation of your contractor's license ever been stayed? ~ yes L 'no 3) Have any subcontractors that you propose to perform any portion of the Work ever had their contractor's license suspended or revoked by the California Contractors' State license Board two or more times within an eight year period? yes 4) Has the suspension or revocation of the license of any subcontractor's that you propose to perform any portion of the Work ever been stay'/? ~7 yes no 5) If the answer to either of 1. or 3. above is yes fully identify, in each and every case, the party disciplined, the date of and violation that the disciplinary action pertain to, describe the nature of the violation and the disciplinary action taken therefore. (If needed attach additional sheets to provide full disclosure.) Page __ of __ pages of this Disclosure of Discipline form 23 BIDDER'S DISCLOSURE OF DISCIPLINE RECORD (CONTINUED) (To Accompany Proposal) CALAVERA PRESERVE PALM GROVE REMOVAL AND NATIVE PLANT RESTORATION PROJECTCT NO. 3821 6) If the answer to either of 2. or 4. above is yes fully identify, in each and every case, the party who's discipline was stayed, the date of the violation that the disciplinary action pertains to, describe the nature of the violation and the condition (if any) upon which the disciplinary action was stayed. (If needed attach additional sheets to provide full disclosure.) BY CONTRACTOR: l,tav.JiW ~val:toV\ ~iGY1c.as )-znc. (print name/title) PLEASE SEE NOTARY ATTACHMENT Page __ of __ pages of this Disclosure of Discipline form 24 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of ,S) G'. I"-1)jg~o I On m.a.y 9: 5 /JoL before me, So,v(,\ !\DQ!. 3.o..a£o.-J N 0 l-.::ury' fobl,G 1 Date He~e Insert Name and Title of the Officer personally appeared VV\w[ \L Gt I v'O...rcJ Name(f) of Signer(!) who proved to me on the basis of satisfactory evidence to be the person(t) whose name(f) is/~ subscribed to the within instrument and acknowledged to me that he/~ executed the same in his/hCl','ti'leir authorized capacity(iefi), and that by his/herl#teir signature(1) on the instrument the person(~, or the entity upon behalf of which the person(f) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. and official seal. Place Notary Seal Above ----------------------------~OPTIONAL------------------------------ Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document:---------------------------- Document Date: -------------------Number of Pages: _____ _ Signer(s) Other Than Named Above: ----------------------- Capacity(ies) Claimed by Signer(s} Signer's Name: ____________ _ Signer's Name: ____________ _ D Corporate Officer -Title(s): ______ _ D Corporate Officer -Title(s): ______ _ D Partner -D Limited D General D Partner -D Limited D General D Individual D Attorney in Fact D Individual D Attorney in Fact D Trustee D Guardian or Conservator D Trustee D Guardian or Conservator D Other: _____________ _ D Other: -------------- Signer Is Representing: _________ _ Signer Is Representing: _________ _ ™'~™~~™~'%~'%~~'%~ ©2015 National Notary Association· www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 NONCOLLUSION DECLARATION TO BE EXECUTED BY BIDDER AND SUBMITTED WITH BID PUBLIC CONTRACT CODE SECTION 7106 CALA VERA PRESERVE PALM GROVE REMOVAL AND NATIVE PLANT RESTORATION PROJECTCT NO. 3821 . ~C· The undersigned declares: -·°"(')~ d'c/-'S, I . -~ ,;~v~ St.A I am the \?< .t.&.> \ o\M of ~\,' '{1.£ , the party making the foregoing bid. The bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation. The bid is genuine and not collusive or sham. The bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bid. The bidder has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or to refrain from bidding. The bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any overhead, profit, or cost element of the bid price, or of that of any other bidder. All statements contained in the bid are true. The bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, to any corporation, partnership, company, association, organization, bid depository, or to any member or agent thereof, to effectuate a collusive or sham bid, and has not paid, and will not pay, any person or entity for such purpose. Any person executing this declaration on behalf of a bidder that is a corporation, partnership, joint venture, limited liability company, limited liability partnership, or any other entity, hereby represents that he or she has full power to execute, and does execute, this declaration on behalf of the bidder. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration is executed on tJl "-1j 2 C., , 20& at Ca.rlsbddity], CA [state]. /\;'\; Signature of Bidder PLEASE SEE NOTARY A'rU1CtiME:Nt 25 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of .s 0\ V'\ Dil9.ao ) On ~\I CJ:5-rfk>t (p before me, &vo.J\DOl ~Q,,Olo('J Nc:>h:::l(y'.tobl,c.. I T Date ()re Insert Name and Title of the Officer U\ JI "' ,,,.. \L L,'.M ·" personally appeared ~Y"~ \U\,,~~L~---Ql.~_._! 11A~~L~~----------------- Name~ of Signer(/) who proved to me on the basis of satisfactory evidence to be the person(~ whose name(i) is/are-- subscribed to the within instrument and acknowledged to me that he/SReltlcley executed the same in his/~eir authorized capacity(ie~, and that by his/herftl'leifosignature(Jl on the instrument the person(~, or the entity upon behalf of which the person(, acted, executed the in!trument. Place Notary Sea/ Above I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Signature of Notary Public ------------------------------~opnoNAL------------------------------- Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: ___________________________ _ Document Date: ___________________ Number of Pages: _____ _ Signer(s) Other Than Named Above: ----------------------- Capacity(ies) Claimed by Signer(s) Signer's Name: ____________ _ Signer's Name: ____________ _ D Corporate Officer -Title(s): ______ _ D Corporate Officer -Title(s): ______ _ D Partner -D Limited D General D Partner -D Limited D General D Individual D Attorney in Fact D Individual D Attorney in Fact D Trustee D Guardian or Conservator D Trustee D Guardian or Conservator D Other:---------------D Other: -------------- Signer Is Representing: _________ _ Signer Is Representing: _________ _ ~'™-'™"''@%GiliW,~~~~~~~ ©2015 National Notary Association• www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 arlsbad Municipal Water District Palm Grove Removal and Native Plant Restoration Project No. 3821 EXHIBIT A Definition of Terms The definitions of some of the capitalized terms used in this RFP are presented below: Builder -The Design Builder or other firm (such as a subcontractor or joint-venture partner) that will provide construction services and have responsible charge of construction of the Project. CDFW -California Department of Fish and Wildlife. City-The City of Carlsbad. Designer -The Design Builder or other firm (such as a subconsultant or joint-venture partner) that will provide professional design services and have responsible charge of the design, including preparation of the construction documents. Design Builder -The entity that is selected to enter into the Design-Build Contract with the Owner and that will be the single point of accountability to the Owner for delivery of the services and the Project. Draft Design-Build Contract -The draft contract, including the agreement and all of its attachments, presented as RFP EXHIBIT C (Draft Design-Build Contract). DSOD -The State of California Division of Safety of Dams HMP -The Habitat Management Plan for Natural Communities in the City of Carlsbad. Key Personnel -The individuals, employed by Design Builder or other firms included on the Project Team, who would fill certain key roles in delivery of the Project and related services by the Design Builder, including the following positions: project manager, safety manager, design manager, construction manager, restoration ecologist, landscape architect and other key positions as deemed appropriate by the Proposer. Minimum Qualification Requirements -The requirements set forth in Subsection 6.3 of this RFP that, at a minimum, must be satisfied (or waived by Owner) in order for the Proposal to be evaluated and ranked according to the comparative evaluation criteria. Owner -Carlsbad Municipal Water District (CMWD), a subsidiary of the City of Carlsbad, California. Project -Palm Grove Removal and Native Plant Restoration, Project No. 3821 Project Team -The Design Builder, Key Personnel and any additional firms (such as subcontractors and subconsultants) included in the Proposal. Proposer -The entity responding to this RFP by submitting the Proposal. Resource Agencies -the California Department of Fish and Wildlife and the United States Fish and Wildlife. SAA -Streambed Alteration Agreement issued by the California Department of Fish and Wildlife. Page A-1 3/21/16 arlsbad Municipal Water District Scope Section 1 Project Introduction Palm Grove Removal and Native Plant Restoration Project No. 3821 EXHIBIT B Design Builder Services CMWD owns the Calavera Lake Dam, located at the southwestern end of Calavera Lake, off Tamarack Avenue in the City of Carlsbad, San Diego County, California. The parcel encompassing the Lake Calavera Reservoir is owned by the City of Carlsbad (City) and the Carlsbad Municipal Water District (CMWD) operates and maintains the dam. In 2006, the CMWD initiated the Calavera Dam Remedial Improvements Project, which was completed in 2009, to repair the badly neglected dam and appurtenances to comply with the State of California Division of Safety of Dams (DSOD) requirements. That project included repairs to the existing Lake Calavera Reservoir intake/outlet structure, spillway, and access road; slip-lining the existing outlet; and construction of a control building including fencing for improved site security around the dam operations. Vegetation was removed at that time, but has since grown back. Pursuant to DSOD directives, vegetation on the dam and in the spillway should be removed as needed to allow visual inspection of dam for erosion, rodent burrowing, and for general dam safety. Responsibility for supervision of dams and reservoirs is assigned to the Department of Water Resources (DWR) and delegated to the DSOD. Water Code Sections 6000 to 6004.5 and 6025.5 identify dams and reservoirs that are under State jurisdiction. In matters relating to the California Environmental Quality Act (CEQA), the DWR is typically the lead or responsible agency for dams and reservoirs. According to CEQA Section 15301(m), repair and maintenance of dams is exempt from CEQA; however, Section 15300. 2(a) states "a project that is ordinarily insignificant in its impact on the environment may in a particularly sensitive environment be significant." Therefore, since the repair activities involve the removal of sensitive habitat, the project required environmental review. The City (the CEQA lead agency and the project proponent) prepared an Initial Study and processed a Mitigated Negative Declaration. The DSOD, California Department of Fish and Wildlife (CDFW), and CMWD are responsible agencies under CEQA. The vegetation clearing along the dam and spillway was completed January 29, 2016. The vegetation clearing removed the trees and bulrush in the dam spillway in addition to vegetation growing on the dam. Project Purpose A permit is required from the California Department of Fish and Wildlife to perform the removal of the native vegetation. As compensation for the removal of the vegetation, the CMWD agreed to remove the large palm grove and enhance and restore the palm grove area to wetland habitat. Additionally two "palm islands" will be enhanced. Page B-1 3/21/2016 Project Description Palm Grove Removal and Native Plant Restoration Project No. 3821 For impacts to approximately 0.494 acre of areas potentially subject to the jurisdiction of the CDFW, the CDFW requires 0.988 acre of mitigation (2:1 mitigation ratio). The CDFW has agreed to the City's proposal to conduct mitigation off site through creation, restoration, enhancement, and preservation of habitat at a site (three adjacent mitigation areas) located off of Lake Boulevard in Carlsbad, California as shown on the Location Map and in the Conceptual Mitigation Plan both in EXHIBIT D. The City will restore and enhance approximately 0.773 acre of disturbed riparian scrub located along a drainage and will convert approximately 0.015 acre of nonnative grassland adjacent to the drainage into riparian scrub (creation). The 0.773-acre restoration/enhancement area consists of large stands of Mexican fan palm (Washingtonia robusta) trees with scattered Brazilian peppertrees (Schinus terebintheflius). Additionally, a total of 2.842 acres of land surrounding the restoration, enhancement, and creation areas will be preserved in perpetuity serving as a buffer. The total mitigation effort measures 3.630 acres. Removal of the Palm Grove and installation of the mitigation planting shall occur under the direction of a professional biologist or restoration ecologist and shall be maintained and monitored until the performance standards stated in this mitigation plan are achieved (an estimated 5 years) to the satisfaction of the CDFW. The mitigation and monitoring program will be completed under separate contract (which require regular progress- monitoring visits and annual data collection and reporting by the Project Biologist/Restoration Ecologist as described in the Monitoring Requirements starting on Page B-9). Safety Program A Safety Program to address safety of employees and the public during construction. The Calavera Preserve is an active recreational area with a well-defined trail system. The Safety Program will provide safety measures to employ during construction. This Safety Plan shall include trail detours during construction activities. Community Outreach Coordinate with CMWD/City Communication Department to provide information regarding the project construction and plant installation including the nature of the installation activities. The City Communications Department will design a communication outreach program as a component of the project implementation. Community outreach will involve disseminating information at the location of the site and the extended residential areas, discussing the public benefits being achieved with the implementation of the project. The public outreach approach will focus on an effective and achievable process to gain public input and raise awareness of the improvements proposed for the palm grove within the Preserve. The input will be collected through a comprehensive public engagement process that will include a public workshop, stakeholder meetings, fliers, mailers and website posting. Anticipated stakeholder groups will include: resource agencies, such as CDFW; land managers, such as the Center for Natural Lands Management; organized community groups, such as Preserve Calavera; city trail program volunteers; residents of the adjacent neighborhood; and the general public. The purpose of the public outreach will be to 1) provide an outline of the current conditions; 2) identify specific issues related invasive species; 3) disseminate palm grove removal and installation approach; and 4) describe project scope and schedule. Weed/Exotic Plant Eradication Manual control methods (hand pulling or cutting) shall be employed, if feasible. In circumstances where mechanical control is not effective, systemic herbicides that have been approved by the United States Page B-2 3/21/2016 Munidpa! VVator District Palm Grove Removal and Native Plant Restoration Project No. 3821 Environmental Protection Agency (EPA) for use in aquatic situations may be used. The use of string-line trimmers is strictly prohibited without prior written approval by the Project Biologist/Restoration Ecologist on a case-by- case basis. Exotic plant eradication within the mitigation site will require the removal of large Mexican fan palm and Brazilian peppertrees. Trees shall be cut at or near the soil surface and the stumps will be immediately treated with herbicide. If there is a delay of more than 5 minutes between cutting the stump and application of herbicide, then the Contractor or the City's qualified maintenance staff shall drill holes into and cross-cut the stump and immediately apply herbicide. Within the "Palm Islands" the City proposes to fell the Mexican fan palm trees and leave the trunks on site. During the removal of large trees and shrubs, care will be taken to preserve the adjacent native vegetation to the greatest extent feasible. Native species damaged or destroyed during tree removal will be replaced during the cutting installation process. To avoid impacts to nesting birds, the removal of vegetation shall not be conducted between February 15 and September 15 unless nesting bird clearance surveys conducted by the Project Biologist/Restoration Ecologist are negative. In order to apply unrestricted herbicide (e.g., glyphosate-based systemic herbicides), the City's Contractor or maintenance staff must have a Pest Control Business License, which requires that the staff person be in possession of a Qualified Applicator's License (QAL). If a qualified applicator is not present during treatment, all applicators must have undergone documented herbicide application training. All licenses must be issued in the State of California, registered in San Diego County, and current. Herbicides approved for use in aquatic situations must be used when working within 100 feet of watercourses. No preemergent herbicides may be used. The Contractor shall obtain the recommendation of a licensed Pest Control Advisor for concentrations to be used for specific applications such as foliar spraying and cut stump treatments. A brightly colored marking agent shall be used in all applications. The material shall be a nontoxic, water-soluble liquid such as Blazon by Milliken Chemicals or the equivalent. Spraying of herbicides shall be conducted only when weather conditions are conducive to effective uptake of the herbicide by the targeted species (e.g., sunny, dry, and when target plants are actively growing), and when wind conditions are such that herbicide drift is nonexistent (5 miles per hour or less). During herbicide application, native species must be protected. Native species killed by herbicide treatment shall be replaced in the following planting season, and all costs associated with the replacement planting (e.g., plant material costs, monitoring fees, and coordination expenses) shall be the responsibility of the Contractor. The Project Biologist/Restoration Ecologist will periodically monitor the site and will quantify the damage to native plant from herbicide applications to the greatest extent possible. If weeds become established in the mitigation site prior to planting, weed eradication shall be performed prior to plant material installation. The Project Biologist/Restoration Ecologist will make this determination. Soil Testing Prior to site preparation and planting, the landscape contractor shall submit soil samples to a laboratory for a standard agricultural suitability analysis. If the results ofthe analysis indicated the need for soil amendments, they shall be applied during the site preparation phase and prior to planting. Site Preparation Due to anticipated soil compaction from equipment during palm tree and other nonnative species eradication, the landscape contractor shall decompact the soil using low pressure equipment and hand tools. Additionally, the Page B-3 3/21/2016 VVeter District Palm Grove Removal and Native Plant Restoration Project No. 3821 landscape contractor shall perform minor grading at mitigation area 1 (large Palm Grove area), as necessary, to create multiple rivulets that will flood during rain events to aid in riparian restoration/enhancement effort. Installation of Cuttings and Container Plants Cutting and container plant installation should occur prior to or during the rainy season to allow for establishment to the extent that the cuttings and container plants can survive high-flow events, preferably between October 1 and November 1, with replacements for failed plants to be installed before the following March 31 ofthe following year. Seed Application The landscape contractor shall apply the native seed mix listed in Table B to the three mitigation areas immediately following the installation of cuttings and container plants. Pl.ANTING PlAN Plant Materials When feasible, propagules for shrub and tree container plantings and cuttings shall be collected from plants growing on the project site or in the local area. The use of site-specific materials-those adapted to local conditions-increases the likelihood that revegetation will be successful and maintains the genetic integrity of the local ecosystem. Seed will be sourced from local vendors. Arrangements shall be made well in advance of planting to ensure that the adequate donor sites are available and accessible. Donor sites are subject to the approval of the Project Biologist/Restoration Ecologist. Tables A and B list the specified container plants/cuttings and seed to be installed at the mitigation site. Table A: Riparian Scrub Plant Palette Plant Species Common Name Spacing Plant Materials Quantity Anemopsis californica yerba mansa 1-3' in clusters one-gallon 75 containers Baccharis salicifolia mule fat 4-6' locally obtained so cuttings Platanus racemosa western sycamore 20' deep 15-gallon 10 containers Populus fremontii ssp. western cottonwood 12' deep 15-gallon 10 fremontii containers Quercus agrifolia var. coast live oak 20' deep 15-gallon 5 agrifolia containers Rubus ursinus California blackberry 3-5' in clusters one-gallon so containers Page B-4 3/21/2016 Mi.micipa! VVater District Table A: Riparian Scrub Plant Palette Plant Species Common Name Salix exigua narrow-leaved willow Salix gooddingii Gooding's black willow Salix laevigata red willow Salix lasiolepis arroyo willow Sambucus nigra ssp. caerulea Mexican elderberry Table B: Wetland Seed Mix (0.788 acre) Palm Grove Removal and Native Plant Restoration Project No. 3821 Spacing Plant Materials Quantity 4-6' locally obtained so cuttings 4-6' locally obtained 100 cuttings locally obtained so cuttings 4-6' locally obtained 100 cuttings 12-16' deep one-gallon 25 containers Plant Species Common Name Pounds/Acre Total Quantity (pounds) Baccharis salicifolia mule fat 1.00 0.788 Heliotropium curassavicum alkali heliotrope 1.00 0.788 Leymus condensatus giant wild-rye 1.50 1.182 Leymus triticoides beardless wild rye 7.00 5.516 Pluchea odorata marsh fleabane 0.25 0.191 Scirpus acutus bultule 2.00 1.576 Scirpus robustus common bulrush 2.00 1.576 Cuttings Mule fat and willow cuttings will consist of locally obtained cuttings from 0.5 inch to 1 inch in diameter and approximately 36 to 48 inches in length. The cuttings shall be planted within one (1) week of being harvested and shall be kept moist. Cuttings not planted within one (1) week after cutting or allowed to dry out shall not be used. No more than 20 percent of any donor plant may be harvested. At the time of collection, the basal ends shall be cut at approximately a 45-degree angle, and if terminal ends are cut, they will be cut perpendicular to the length of the cutting to maintain the proper orientation during installation. Prior to installation, the basal ends of the moist cuttings will be treated with rooting hormone and allowed to dry in open air and out of direct sunlight for 30 to 45 minutes. Cuttings shall be stored in water in containers that hold water. The cuttings shall be installed in augered holes to a minimum depth of 24 inches (Figure S). Container Plants When local propagules are not available or cannot be collected at least six months prior to the fall planting, materials grown from other sources within San Diego County, southern Riverside County or southern Orange County shall be substituted, as approved by the Project Biologist/Restoration Ecologist. The Applicant or his/her agent will order and purchase container plant materials from a qualified nursery specializing in Southern California native plant species propagation. The Project Biologist/Restoration Ecologist Page B-5 3/21/2016 arlsbad Municipal V\later District Palm Grove Removal and Native Plant Restoration Project No. 3821 shall periodically inspect the nursery stock during the growing phase. Container plants must have healthy, well- developed root systems and shall not be rootbound. In addition to being weed free, container plants shall be free of dead or dying branches and branch tips, with all foliage of a normal density, size, and color. Seed Manual broadcast seeding and raking is the preferred method for distributing seed on the mitigation site. However, there are several other methods for seeding (e.g., hydroseeding, imprinting) that have been used successfully in numerous mitigation projects. Regardless of the application method, seeded areas will be thoroughly watered with a fine spray as soon as possible after application (i.e., same day or next day). A protective layer of certified weed-free straw or other carbon based mulch (e.g., bark, wood chips) will then be spread over seeded areas. Carbon-based mulch materials absorb the soil nitrogen, reducing the high nitrogen levels that promote rapid weed growth. The carbon based materials later breakdown providing a slow release of nitrogen back to the native plants within a year or two. The seeded area will then be thoroughly watered again following mulch application. Plant materials shall be sufficiently hardened. The acceptance ofthe plant materials will be the sole responsibility of the Contractor. The Project Biologist/Restoration Ecologist shall inspect a representative sample of all plant stock and shall reject those plants that do not meet these standards. Planting Technique All cuttings and container plants shall be spaced in natural-looking patterns so that each species is distributed throughout the planting area and plants are not crowded together. Plants shall be arranged in species groups at the direction of the Project Biologist/Restoration Ecologist based on microhabitat conditions present, the recommended spacing guidelines in the plant palette, and the goals for the areas to receive plantings. All container plants are to be installed according to the following specifications (Figure 6): • All planting holes shall be augered, have vertical sides with roughened surfaces, and be at a minimum three times as deep as the container plant's root ball and two times as wide. For cuttings, the holes shall be augered to a minimum of 36 inches. For planting holes excavated in giant reed root balls, it is recommended that the planting hole depth be augered as deep as possible to promote deep root development. • Prior to augering, all vegetation shall be removed within a 24-inch-diameter around the planting location. Should a desired native plant species occur in the proposed area to be cleared, the planting hole locations shall be adjusted to avoid impact to any sensitive species. • Any roots wrapped around the sides of the container shall be pulled loose from the root ball. The sides ofthe root ball shall be scarified to promote new root development. • Plants shall be planted with the roots untangled and laid out in the planting hole. • Roots shall be adequately protected at all times from sun and/or drying winds. • After excavation and before planting, the planting holes shall be filled approximately half full with water, backfilled with thoroughly broken up native soil, then completely filled with water to minimize soil settling after installation. Page B-6 3/21/2016 arlsbad Municipal \'Vater District Palm Grove Removal and Native Plant Restoration Project No. 3821 • Plants shall be set in the planting holes so that the crowns of the root balls are between one-half inch and three-quarters inch above finish grade. The crowns of the plants shall not be depressed. • A watering basin 24 inches in diameter shall be constructed around each plant (applies to cuttings also). • Each plant is to be individually watered at the time of planting, with sufficient water to reach the lower roots. Mycorrhizal lnoculum Mycorrhizal fungi inoculum shall be used in a form suitable for cutting and container plant installation, at the Contractor's choice, so long as they meet the following specifications. The chosen product used must contain only mycorrhizae, roots, and growing medium. Mycorrhizal inoculum that contains high concentrations of humus and humic acids, known to reduce the potency of the inoculum, are not acceptable. It is the responsibility of the Contractor to furnish mycorrhizal inoculum that meets or exceeds these specifications. Once a source is chosen, the Contractor shall submit documentation of order along with product specifications to the Project Biologist/Restoration ecologist for acceptance at a minimum of two weeks prior to use. Mycorrhizal fungi inoculum shall consist of endomycorrhizal and ectomycorrhizal propagules. Endomycorrhizal lnoculum. Endo (arbuscular) mycorrhizal inoculum shall consist of spores, mycelium, and mycorrhizal root fragments in a solid carrier suitable for handling by hydro-seeding or dry seeding equipment. The carrier shall be the material in which the inoculum was originally produced, and may include organic materials, vermiculite, perlite, calcinid clay, or other approved materials consistent with mechanical application and with good plant growth. Each endomycorrhizal inoculum shall carry a supplier's guarantee of numbers of propagules per unit weight or volume of bulk material. When more than one fungal species is claimed by the supplier, the label shall include a guarantee for each species of mycorrhizal fungus claimed. Endomycorrhizal inoculum is a live material: it shall be transported and stored in vehicles, containers, and in application equipment with a temperature of less than 32° C (90° F). lnoculum shall be applied at the rate of 8,900,000 live propagules per hectare (3,600,000 live propagules per acre) based on the supplier or an analysis returned by an independent laboratory. Ectomycorrhizal lnoculum. Ectomycorrhizal inoculum shall consist of spores and/or vegetative mycelium and mycorrhizal root fragments of one or more ectomycorrhizal host plants specified for the site. Ectomycorrhizal inoculum shall be placed in the planting holes of each suitable host plant species in such a way that new root growth will encounter the inoculum as early as possible. Irrigation The Contractor is responsible for the survival and establishment of the installed plant materials. Supplemental irrigation shall be supplied as necessary by use of a temporary irrigation system, hand watering, or other means subject to approval of the Project Biologist/Restoration Ecologist until the plantings are established as determined Page B-7 3/21/2016 arlsbad f,Jlunicipa1 Water District Palm Grove Removal and Native Plant Restoration Project No. 3821 by the Project Biologist/Restoration Ecologist. All costs associated with any system shall be included in the maintenance budget. Any proposed temporary system design would be subject to review and approval by the Project Biologist/Restoration Ecologist. The Contractor will remove the system when the Project Biologist and City agree that supplemental watering is no longer necessary to ensure survival of the installed plant materials. The City shall provide the location of a point of connection to a water source if any exists. Otherwise, the Contractor will provide a water source subject to approval of the Project Biologist/Restoration Ecologist. 120-Day Plant Establishment Period Following installation of the specified plant materials, the Contractor shall be responsible for maintaining the mitigation site for a 120-day period. Maintenance during the 120-day warranty period shall follow the specifications outlined in the Maintenance Activities section, below. All plant materials shall be in a healthy and flourishing condition of active growth 120 days from the date of installation (100% survival rate for container plantings). All container plants that have died or are displaying unreasonably slow growth shall be replaced with the same type and size species, at the cost of the Contractor. The Project Biologist/Restoration Ecologist shall determine the need to replace installed plant materials. All delays in the completion of planting installation that extend the installation into more than one planting season shall extend the warranty period accordingly. Final Acceptance Work shall be accepted at the discretion of the Project Biologist/Restoration Ecologist upon satisfactory completion of all work, including the maintenance period but exclusive of replacement of plant materials during the warranty period. All plant materials shall be guaranteed for 120 days after Final Acceptance. Any installed plants that have died or that display unreasonably slow growth shall be replaced with the same species at the cost of the Contractor. The Project Biologist/Restoration Ecologist shall determine the need to replace plant materials. Final acceptance shall be granted when all plant materials have been planted in accordance with the planting plan specifications and have demonstrated acceptable health and growth. MAINTENANCE REQUIREMENTS DURING 120-DAY PLANT ESTABUSHEMNT PERIOD Weed Control To prevent weeds and exotic plants from outcompeting native plant species for natural resources (e.g., water, sunlight, space, and nutrients), weeds and ruderal invasive plants shall be controlled in the mitigation site during plant establishment period, as determined by the Project Biologist/Restoration Ecologist/Restoration Ecologist and subject to the approval of the CDFW. When feasible, all nonnative invasive weeds shall be removed manually. In circumstances where manual removal is not effective, it may be appropriate, at the discretion of the Project Biologist/Restoration Ecologist/Restoration Ecologist, to utilize systemic herbicides that have been approved by the EPA (see Herbicide Treatment Guidelines, above). If more than 10 percent of the vegetative cover is from weeds greater than 6 inches in height, all weeds present in the mitigation site shall be removed before they produce seed or reach a height of 8 inches, whichever occurs first. Any plant species determined by the Project Biologist/Restoration Ecologist/Restoration Ecologist to be detrimental to the success of the mitigation efforts Page B-8 3/21/2016 Palm Grove Removal and Native Plant Restoration Project No. 3821 shall be removed. All removed weed material shall be taken away from the site and legally disposed of at an off- site location. Pest Control The control of damage to the revegetation efforts by insects and herbivores shall be the responsibility of the Contractor using only those methods approved by the Project Biologist/Restoration Ecologist/Restoration Ecologist. The Contractor shall implement control measures at the earliest sign of damage, which may require fencing or caging of plant materials. Fertilization No chemical fertilizers shall be used in the mitigation site without prior written authorization from the Project Biologist/Restoration Ecologist/Restoration Ecologist. Pruning and Leaf Litter Dead branches and leaf litter provide habitat for a variety of species. Because the goal is to replicate naturally- occurring habitat, no pruning or leaf litter removal of native species shall take place within the mitigation site. The leaf litter and branches from native plant species shall be left in place. Removal of Trash and Debris The mitigation site shall be kept neat, clean, and free of all non-vegetative debris and trash (except for nonnative vegetative debris accumulated during weed removal activities, which shall be removed as specified). Five-Vear Maintenance Program is not a part of this contract Project Performance Standards The ultimate goal is the establishment of native riparian scrub species to the point that nonnative species are excluded and the native species are self-sustaining without human intervention. All plantings shall maintained for a minimum of 120-days following acceptance of installation. All mitigation planting shall have a minimum 100 percent prior to Final Acceptance Over the 120-day period following installation of plant materials, the following observable characteristics shall be considered in demonstrating progress toward the successful establishment of a healthy and functional mitigation site: • Noticeable growth and new branching for container plantings and cuttings; • Lack of significant erosion; • Good root development of desired (native) species, which will be checked by a pull test conducted by the Project Biologist/Restoration Ecologist; • Unsuccessful cuttings shall be replaced with 1-gallon container plantings; Page B-9 3/21/2016 Palm Grove Removal and Native Plant Restoration Project No. 3821 • Evidence of resistance to invasion by nonnative species; • Use of habitat by indicator wildlife species; • Regeneration of the newly established plant community; and • Continued survival and growth of planted. Monitoring Methods Monitoring During Site Preparation and Installation. All phases of site preparation, exotic weed eradication, installation of plant materials, and warranty period maintenance shall be monitored to the extent necessary to enforce compliance with this mitigation plan. The Project Biologist/Restoration Ecologist/Restoration Ecologist will consult with the Contractor to determine whether field revisions to the plans are necessary. If field revisions are made, they will be documented in the as-built report. The Project Biologist/Restoration Ecologist/Restoration Ecologist will notify the City when the mitigation measures described in this plan commence and at critical periods (e.g., prior to removal of nonnative trees, prior to installation of plant materials). Performance and Maintenance Monitoring. Monitoring shall be conducted at least once per month for the 120- day Plant Establishment Period and monthly thereafter until Final Acceptance. At a minimum, the Project Biologist/Restoration Ecologist/Restoration Ecologist will monitor the following indices: • Success of exotic plant eradication efforts; • Plant survival and vegetative cover (Dead or dying plants shall be replaced immediately upon notification); and • Presence and density of weeds. During each monitoring site visit, the Project Biologist/Restoration Ecologist/Restoration Ecologist will document the general condition of the mitigation site and evaluate it for compliance with the maintenance specifications and progress toward achieving the performance standards. The results of these visits will be summarized in field memoranda submitted to the City and Contractor within one week following each site visit. When finalized, these memoranda will be summarized and incorporated into the Acceptance Report submitted to the City and Contractor. Section 3 Design~Build Contract Scope of Services Design Builder shall perform all design and construction services, and provide all material, equipment, tools and labor, necessary to complete the Project subject to and described in and reasonably inferable from the Contract Documents, which will include the following appendices to the Draft Design-Build Contract (Part 5 of Contractors submittal): • EXHIBIT 1-Design-Build Scope of Services (presented as EXHIBIT Bin this RFP) • EXHIBIT 2 -Project Performance Standards (presented as EXHIBIT Bin this RFP) • EXHIBIT 3 -Project Permits (presented in EXHIBIT Din this RFP) Page B-10 3/21/2016 arlsbad Munictpai Water Dis!rict Palm Grove Removal and Native Plant Restoration Project No. 3821 • EXHIBIT 4-Construction related documentation including Conceptual Mitigation Plan Sheets (2 sheets) Tier 2 SW PPP Template and Right of Way Permit Applications (if required). The Project will include the following services to be completed under Phase 1 and Phase 2, in accordance with and in addition to other requirements of the Contract Documents. Phase 1 services: • Develop the Project execution plan, including baseline Project schedule, which will demonstrate how the Design Builder will meet the Contract Schedule. Updated Contract Schedules will be prepared and submitted in accordance with the General Conditions. • Develop and submit the Baseline Construction Schedule. • Work with CMWD/City staff to develop a plan to maintain the trail system during construction. • Develop a fencing plan to promote safety of workers and the public during construction. • Utilizing the 60 percent plans, fencing and trail detail and project schedule CMWD/City staff will coordinate with Carlsbad's Community Outreach Team. Phase 2 services: • Complete and submit the 90-percent completion design review package. • Complete and submit the 100-percent (or final) completion Construction Documents. The Construction Documents shall be in compliance with Federal and State of California recycled water regulations and requirements, including Title 22 of the California Code of Regulations. • Complete and submit the Tier 2 Construction SWPPP. • Complete and submit the City of Carlsbad Right of Way Permit Application (no fee permit for the City of Carlsbad). • Complete and submit a traffic control plan for approval to the City of Oceanside, obtain right of way permit and pay associated fees (if required). • Procure equipment and subcontractors. • Construct Project in accordance with the Project Contract Documents, Contract Schedule. Coordinate with Owner's representative throughout construction. • Perform 120-day Plant Establishment. • Participate in Final Acceptance Walk-through and complete identified items. • Provide warranty coverage. • Prepare "As-built" drawings based on records and inspector records. Page B-11 3/21/2016 Palm Grove Removal and Native Plant Restoration Project No. 3821 EXHIBITC Project Background Documents The following Project background documents are available for Proposers to review: 1. Location Map 2. Conceptual Mitigation Plan Calavera Dam Routine Maintenance Project prepared by LSA dated October 2015 3. 30 % Landscape Plans Calavera Dam Routine Maintenance Project Revegetation Plan and Conceptual Planting Layout 4. California Department of Fish and Wildlife Streambed Alteration Agreement Notification No. 1600-2013- 0241-R5 5. MND Case No. EIA 11-03 dated 08/06/12 6. Tier 2 Construction Storm Water Pollution Prevention Plan 7. City of Carlsbad Right of Way Permit Application Page C-1 3/21/2016 View Point [] Trailhead 8 Proposed Boardwalk Lake Calavera Preserve Boundary Restoration Areas: Restoration for City Mitigation, 2008-2009 Restoration Funded by SANDAG Transnet EMP Grant, 2009 Restoration for City Wetlands Mitigation for Boardwalk, 2011 "'Lake Loop Trail -1.9 miles "'Oak Riparian Loop Trail - 1.4 miles "'East Loop Trail -0.9 mile "'Monkey Flower Trail - 0.9 mile "'Serpentine Trail -0.7 mile "'Connection Trail ,,. -Existing Utility Road Trail Palm Grove Removal and Native Plant Restoration CONCEPTUAL MITIGATION PLAN CALAVERA DAM ROUTINE MAINTENANCE PROJECT CITY OF CARLSBAD SAN DIEGO COUNTY, CALIFORNIA LS A October 2015 CONCEPTUAL MITIGATION PLAN CALAVERA DAM ROUTINE MAINTENANCE PROJECT CITY OF CARLSBAD SAN DIEGO COUNTY, CALIFORNIA Prepared for: Sherri Howard City of Carlsbad 1635 Faraday Avenue Carlsbad, California 92008-7314 Prepared by: LSA Associates, Inc. 703 Palomar Airport Road, Suite 260 Carlsbad, California 92011 (760) 931-5471 LSA Project No. HCR1102C LS A October 2015 LSA ASSOCIATES, INC. OCTOBER 2015 CONCEPTUAL MITIGATION PLAN CALAVERA DAM ROUTINE MAINTENANCE PROJECT TABLE OF CONTENTS INTRODUCTION .................................................................................................................................. 1 PROJECT DESCRIPTION, BASELINE, AND HISTORY .................................................................. 1 PROPOSED PROJECT OBJECTIVES ................................................................................................. 4 CONSTRUCTION DESCRIPTION ...................................................................................................... 4 JURISDICTIONAL IMPACTS ............................................................................................................. 5 RESPONSIBLE PARTY ....................................................................................................................... 7 MITIGATION WORK PLAN ............................................................................................................... 7 Schedule ........................................................................................................................................... 9 Weed/Exotic Plant Eradication ........................................................................................................ 9 Soil Testing .................................................................................................................................... 10 Site Preparation .............................................................................................................................. 10 Installation of Cuttings and Container Plants ................................................................................ 10 Seed Application ............................................................................................................................ 10 Five-Year Maintenance Program ................................................................................................... 11 PLANTING PLAN ............................................................................................................................... 11 Plant Materials ............................................................................................................................... 11 Cuttings .......................................................................................................................................... 12 Container Plants ............................................................................................................................. 12 Seed ................................................................................................................................................ 14 Planting Technique ........................................................................................................................ 14 Mycorrhizal Inoculum ................................................................................................................... 16 Irrigation ........................................................................................................................................ 17 120-DAYWARRANTYPERIOD ....................................................................................................... 17 Final Acceptance ............................................................................................................................ 17 MAINTENANCE ................................................................................................................................. 17 Weed Control ................................................................................................................................. 18 Pest Control. ................................................................................................................................... 18 Fertilization .................................................................................................................................... 18 Pruning and Leaf Litter .................................................................................................................. 18 Removal of Trash and Debris ........................................................................................................ 18 Replacement of Dead or Diseased Plant Materials ........................................................................ 19 MONITORING REQUIREMENTS AND PERFORMANCE STANDARDS ................................... 19 Performance Objective and Standards ........................................................................................... 19 Ultimate Performance Standards ................................................................................................... 20 Monitoring Methods ...................................................................................................................... 20 MEASUREMENT AND PAYMENT .................................................................................................. 21 Mobilization ................................................................................................................................... 21 Invasive Weed Eradication ............................................................................................................ 22 P:\HCRI 102C -Calavera Dam Routine Maintenance 2015\Conceptual Mitigation Plan\Calavera_CMP _101515.docx (10/20/2015) LSA ASSOCIATES, INC. OCTOBER 2015 CONCEPTUAL MITIGATION PLAN CALAVERA DAM ROUTINE MAINTENANCE PROJECT Installation of Cuttings and Container Plants ................................................................................ 22 Maintenance .................................................................................................................................... 22 Retention Payment ............................................................................................................................ 22 LONG-TERM PRESERVATION ........................................................................................................ 23 FIGURES Figure 1: Project Location M:ap .............................................................................................................. 2 Figure 2: Habitat Management Plan Location Map ............................................................................... 3 Figure 3: CDFW Jurisdiction Impacts .................................................................................................... 6 Figure 4: Proposed Off-site Mitigation .................................................................................................. 8 Figure 5: Cutting Planting Detail ......................................................................................................... 13 Figure 6: Container Plant Planting Detail ............................................................................................ 15 TABLE Table A: Riparian Scrub Plant Palette .................................................................................................. 11 Table B: Wetland Seed Mix (0.788 acre) ............................................................................................. 12 P:\HCR! 102C -Ca!avera Dam Routine Maintenance 2015\Conceptual Mitigation Plan\Calavera_CMP _IOl515.docx (10/20/2015) ii LSA ASSOCIATES, INC. OCTOBER 2015 INTRODUCTION CONCEPTUAL MITIGATION PLAN CALAVERA DAM ROUTINE MAINTENANCE PROJECT The City of Carlsbad (City) proposes to remove vegetation from the upstream, downstream, spillway, intake/outlet structure, and associated areas at the Calavera Dam, located in the City of Carlsbad (City), San Diego County, California. The project area is contained within a Hardline Preserve according to the City of Carlsbad's Habitat Management Plan (HMP), and is listed as a covered project in Appendix B of the HMP. Impacts to approximately 0.494 acre of areas subject to the jurisdiction by the California Depaitment of Fish and Wildlife (CDFW) will be affected by project activities. These impacts include 0.110 acre of southern willow scrub, 0.246 acre of freshwater marsh, 0.011 acre of open water, and 0.127 acre of unvegetated area consisting of bare ground and concrete spillway. The proposed vegetation clearing is not regulated by the United States Army Corps of Engineers (Corps) and no impacts (e.g., fill or discharge) related to waters of the United States that would be subject to Federal Clean Water Act regulation are anticipated. A Lake or Streambed Alteration Agreement, pursuant to California Resources Code Section 1602, will be required for the proposed impacts to vegetation in areas regulated by the CDFW. This plan has been prepared for use by the CDFW as part of its review of applications for permit authorization. Additionally, this plan will help the City to retain a monitoring biologist and landscape contractor to implement this plan. This plan addresses impacts to areas subject to the jurisdiction of the CDFW. Mitigation for impacts to other habitat types is addressed through compliance with the City's HMP and is documented in the California Environmental Quality Act (CEQA) Initial Study/ Mitigated Negative Declaration (IS/MND) and Mitigation Monitoring and Reporting Program (MMRP) on file with the City. PROJECT DESCRIPTION, BASELINE, AND HISTORY The project site is located at the southwestern end of Calavera Lake, off Tamarack A venue in the City of Carlsbad, San Diego County, California, on the United States Geological Survey (USGS) San Luis Rey, California 7.5-minute topographical quadrangle map (see Figure 1). Specifically, the project is located in an unsectioned portion of the Agua Hedionda Land Grant. The project study area is located on moderately steep slopes on City-owned property. The surrounding area consists of undeveloped open space to the north, south, and west; and open water associated with the reservoir to the east. The site is further surrounded by residential development to the west. The project is contained within a Hardline Preserve according to the HMP (Figure 2). The Calavera Lake Reservoir was formed by the compacted earth-fill dam containing rock blankets on both upstream and downstream faces. The decomposed granite base was excavated and the dam and spillway structures were completed in 1941. The primai·y function of the Calavera Lake Reservoir is stormwater retention for flood control. The surface area of the reservoir, when full, is approximately 21 acres. Its maximum storage capacity is approximately 540 acre-feet. The average depth of the reservoir is between 12 to 16 feet and has a maximum water depth of 54 feet. The dam has a height of 67 feet from top of dam to the outfall structure. P:\HCR1102C -Calavera Dam Routine Maintenance 2015\Conceptual Mitigation Plan\Calavera_CMP _101515.docx (10/20/2015) 1000 2000 c:::J Project Site c:::J Mitigation Area FEET d San Luis Rey (1975), CA SOURCE: USGS 7.5' Qua .-oc rnxd (7/13/2011 ) R:\HCRI 102\GIS\Figl_ProJ L . Calavera Dam . ',, . tenance Project Routine 1Vlal n . Project Location LS A LEGEND CJ Project Site Existing Hardline Preserve Area 250 500 FEET SOURCE: TAIC (2010) R:\HCRI 102\GIS\Figl_Proj_Loc.mxd (7/13/20 11) FIGURE2 Calavera Dam Routine Maintenance Project Existing Hardline Preserve Areas LSA ASSOCIATES, INC, OCTOBER 2015 CONCEPTUAL MITIGATION PLAN CALAVERA DAM ROUTINE MAINTENANCE PROJECT The parcel encompassing the Calavera Lake Reservoir is owned by the City, and the Carlsbad Municipal Water District (CMWD) operates and maintains the dam. In 2006, CMWD initiated the Calavera Dam Remedial Improvements Project, which was constructed in 2009, to repair the badly neglected dam and appurtenances to comply with Division of Safety of Dams (DSOD) requirements. That project included repairs to the existing Lake Calavera Reservoir intake/outlet works, to the spillway and access road, to the existing outlet piping using slip-lining methods, and construction of a control building and fencing for improved site security around the dam operations. Vegetation was removed at that time, but has since grown back. Pursuant to DSOD directives, the vegetation on the dam and in the spillway should be removed annually, so it will not reestablish. Responsibility for supervision of dams and reservoirs is assigned to the Department of Water Resources (DWR) and delegated to the DSOD. Water Code Sections 6000 to 6004.5 and 6025.5 identify dams and reservoirs that are under State jurisdiction. In matters relating to CEQA, the DWR is typically the lead or responsible agency for dams and reservoirs. According to the current practices of the DSOD (published on its website at http://www.water.ca.gov/damsafety/docs/ CurrentPractices.pdf, viewed May 6, 2011) repair and maintenance qualify for an exemption under CEQA. However, because the repair activities involve the removal of regulated habitat, the City (the CEQA lead agency and the project proponent) required an Initial Study. The DSOD is the responsible agency under CEQA. PROPOSED PROJECT OBJECTIVES The purpose of the proposed project is to respond to a recommendation from the DSOD in a field inspection report dated April, 19, 2010, that the following actions be taken: • Remove the small trees located near the downstream end of the spillway channel on the top left side; and • Remove all obscuring vegetation from the upstream and downstream faces of the dam, including the tules (Scirpus sp.) on the upstream face. The DSOD field inspection report further explained that the "dense tule growth on the upstream face of the dam made it difficult to conduct a thorough visual inspection and provided an inviting area for rodents and burrowing animals. All tules located on the upstream face of the dam should be removed." CONSTRUCTION DESCRIPTION The project entails removal of vegetative material from the north (lakeside or upstream side) and south (downstream side) faces of the dam, spillway, and outlet structure in response to the DSOD order. The proposed project includes ongoing, routine vegetation removal. The vegetation in the immediate and surrounding vicinity is dominated by Diegan coastal sage scrub, disturbed land, coastal and valley freshwater marsh, nonnative grassland, nonnative vegetation, southern willow scrub, mule fat scrub, coast live oak, riparian forest, and open water. The total area subject to routine vegetation removal maintenance includes approximately 3 acres, most of which has been maintained in the past. Vegetation (including some riparian habitat) would be removed using any or all of the P:\HCRl 102C-Calavera Dam Routine Maintenance 2015\Conceptual Mitigation Plan\Calavera_CMP _101515.docx (10/20/2015) LSA ASSOCIATES, INC. OCTOBER 2015 CONCEPTUAL MITIGATION PLAN CALAVERA DAM ROUTINE MAINTENANCE PROJECT following methods: manual removal, application of herbicide, and mechanically (using an excavator from the top of the dam). All mechanical equipment and trucks used during maintenance activities would be staged in paved or developed areas on the top of the dam or on the access road where the substrate is either bare ground or paved. No ground disturbance (i.e., grubbing or grading) is proposed as part of the project. Initial maintenance would include removal of some trees and shrubs as well as low-growing vegetation. Additionally, initial vegetation removal is required and will include removal of all vegetation to 4 inches above the ground surface and will be completed outside the nesting bird season (February 15 to September 15). Roots will remain in place to provide erosion control and slope stability. Installation of temporary exclusionary fencing would ensure that the limits of construction are clearly defined prior to brush-clearing activities and clearly visible to personnel on foot and equipment operators. Construction personnel shall strictly limit their activities and vehicles to the proposed project construction areas, approved staging areas, and routes of travel. The lake level will be lowered by approximately 3 feet in order for submerged vegetation to be removed. No permits or permissions are required from the DSOD for the CMWD to perform maintenance (including lowering and raising lake levels as required for maintenance activities). The removed vegetative material would be mulched in a chipper and hauled away in trucks to an approved disposal facility. The ongoing routine maintenance will require periodic removal of vegetation when vegetation exceeds 6 inches in height. The City estimates maintenance will be required approximately 3 to 6 times per year, depending on weather conditions. Because this vegetation grows rapidly during the bird breeding season, vegetation removal may be required during the breeding season. Should vegetation removal be required during the breeding season, pre-maintenance nesting bird surveys will be conducted and areas of nesting birds will be avoided. JURISDICTIONAL IMPACTS Calavera Lake and its associated spillway are defined by the capacity in which they can hold water up to the elevational limit of the dam and spillway. Southern willow scrub and freshwater marsh habitats are located entirely within the areas confined by the dam and spillway elevational limits. Streambed and banks beyond the lake and dam are defined by the upper limits of the concrete-lined portion of the spillway apron and channel, and by definable streambed and banks within a deeply incised, primarily unvegetated channel beyond the spillway entering the natural drainage course before leaving the study area. Potential CDFW jurisdiction consists of the area corresponding to the lake and spillway capacity; the natural streambed and banks downstream of the spillway; the riparian canopies and wetland vegetation, which are confined to the lake limits; and the wetland vegetation associated with the outlet structure. Figure 3 illustrates the areas potentially subject to the jurisdiction of the CDFW that will be affected by maintenance activities, and an area that has already been mitigated for pursuant to a previous maintenance project (discussed above under Project Description, Baseline, and History). Approximately 0.494 acre potentially subject to the jurisdiction of the CDFW will be affected by project-related activities. P:\HCR1102C -Calavera Dam Routine Maintenance 2015\Conceptual Mitigation Plan\Calavera_CMP _101515.docx (10/20/2015) 45 90 FEET CJ Study Area -CDFW Jurisdictional Area Impacts (0.494 ac) Previously Mitigated Area (0.052 ac) SOURCE: Aerial -City of Carlsbad (2010) l:\HCRI 102\GISICDFW _MitPlan.mxd (9/3/2015) FIGURE3 Calavera Dam Routine Maintenance Project CDFW Jurisdiction Impacts LSA ASSOCIATES, INC. OCTOBER 2015 RESPONSIBLE PARTY CONCEPTUAL MITIGATION PLAN CALAVERA DAM ROUTINE MAINTENANCE PROJECT The City is responsible for fulfilling any obligations required by the CDFW. The City shall contract a qualified Project Biologist to oversee implementation of all aspects of this mitigation plan. The biologist will be able to demonstrate the successful completion of previous wetland restoration projects to the satisfaction of the CDFW. Upon selection, the Project Biologist's name, address, and telephone number will be provided to the CDFW. The Project Biologist shall be responsible for documentation of compliance with the plan and shall provide appropriate recommendations where discretion is indicated, as well as document any deviations from the plan and report them promptly to the appropriate parties, as indicated herein. The Project Biologist shall be on site during all critical phases of mitigation implementation (e.g., delineation of eradication/enhancement and creation areas, commencement of tree and weed eradication, preparation for and installation of plant materials, and warranty inspections); shall conduct monthly visits during the first year following installation of plant materials; and, at her/his discretion, shall inspect the sites up to eight times per year thereafter, until the performance standards have been achieved and the sites have been released from further maintenance and monitoring requirements by the CDFW. The Project Biologist overseeing the mitigation measures described in this plan shall have successfully completed (to the satisfaction of the CDFW) a minimum of three wetland restoration projects (installation and long-term maintenance) involving the establishment of wetland and riparian plant communities in areas of size comparable to (or larger than) this project. The City shall contract a qualified Landscape Contractor that will be responsible for site preparation, weed eradication and plant material installation, survival of the plant materials, and maintenance of the mitigation site until the performance standards have been satisfied and the site has been released from further maintenance and monitoring requirements by the CDFW. The Contractor shall provide at least one English-speaking person who is thoroughly familiar with all aspects of the mitigation work and this plan, including equipment and materials being utilized or installed, and the best methods for their installation and application. Such a person shall be present at all times during execution of the work and shall direct and supervise all work performed as specified herein. Additionally, the Contractor or City's qualified maintenance staff shall be responsible for the following: (1) compensation for any additional time required by the Project Biologist as a result of noncompliance with the specifications; (2) problems associated with executing the work specified in this plan, or in subsequent specifications, in a timely manner; and/or (3) unnecessary efforts (e.g., late or missed appointments and scheduling inspection of incomplete work). MITIGATION WORK PLAN For impacts to approximately 0.494 acre of areas potentially subject to the jurisdiction of the CDFW, the CDFW requires 0.988 acre of mitigation (2: 1 mitigation ratio). The CDFW has agreed to the City's proposal to conduct mitigation off site through creation, restoration, enhancement, and preservation of habitat at a site (three adjacent mitigation areas) located off of Lake Boulevard in Carlsbad, California (see Figure 4). The City will restore and enhance approximately 0.773 acre of P:\HCR1102C -Calavera Dam Routine Maintenance 2015\Conceptual Mitigation Plan\Calavera_CMP _101515.docx (10/20/2015) LS A $ 0 90 ~ FEET SOURCE: LSA (2015) 180 LEGEND c:J Proposed Conservation/Maintained Area (3.630 acres) Proposed Restoration/Enhancement Area (0.773 acre) Proposed Wetland Creation Area (0.015 acre) l:\HCRI J02\G1S\PropResEnhnncAreas061515.mxd (9/1/2015) Calavera Dam Routine Maintenance Project Proposed Mitigation Areas LSA ASSOCIATES, INC. OCTOBER 2015 CONCEPTUAL MITIGATION PLAN CALAVERA DAM ROUTINE MAINTENANCE PROJECT disturbed riparian scrub located along a drainage and will convert approximately 0.015 acre of nonnative grassland adjacent to the drainage into riparian scrub (creation). The 0.773-acre restoration/ enhancement area consists of large stands of Mexican fan palm (Washingtonia robusta) trees with scattered Brazilian peppertrees (Schinus terebintheflius). Additionally, a total of 2.842 acres of land surrounding the restoration, enhancement, and creation areas will be preserved in perpetuity serving as a buffer. The total mitigation effort measures 3.630 acres. Mitigation shall occur under the direction of a professional biologist and shall be maintained and monitored until the performance standards stated in this mitigation plan are achieved (an estimated 5 years) to the satisfaction of the CDFW. The mitigation and monitoring program will require regular progress-monitoring visits and annual data collection and reporting by the Project Biologist. Schedule After approval of this plan by the CDFW, implementation of the exotic species eradication shall commence upon selection of a landscape contractor. Implementation of the habitat restoration and creation shall commence immediately thereafter. Weed/Exotic Plant Eradication Manual control methods (hand pulling or cutting) shall be employed, if feasible. In circumstances where mechanical control is not effective, systemic herbicides that have been approved by the United States Environmental Protection Agency (EPA) for use in aquatic situations may be used. The use of string-line trimmers is strictly prohibited without prior written approval by the Project Biologist on a case-by-case basis. Exotic plant eradication within the mitigation site will require the removal of large Mexican fan palm and Brazilian peppertrees. Trees shall be cut at or near the soil surface and the stumps will be immediately treated with herbicide. If there is a delay of more than 5 minutes between cutting the stump and application of herbicide, then the Contractor or the City's qualified maintenance staff shall drill holes into and cross-cut the stump and immediately apply herbicide. The City proposes to fell the Mexican fan palm trees and leave the trunks on site. During the removal of large trees and shrubs, care will be taken to preserve the adjacent native vegetation to the greatest extent feasible. Native species damaged or destroyed during tree removal will be replaced during the cutting installation process. To avoid impacts to nesting birds, the removal of vegetation shall not be conducted between February 15 and September 15 unless nesting bird clearance surveys conducted by the Project Biologist are negative. In order to apply unrestricted herbicide (e.g., glyphosate-based systemic herbicides), the City's Contractor or maintenance staff must have a Pest Control Business License, which requires that the staff person be in possession of a Qualified Applicator's License (QAL). If a qualified applicator is not present during treatment, all applicators must have undergone documented herbicide application training. All licenses must be issued in the State of California, registered in San Diego County, and current. Herbicides approved for use in aquatic situations must be used when working within 100 feet of watercourses. No preemergent herbicides may be used. The Contractor shall obtain the recommendation of a licensed Pest Control Advisor for concentrations to be used for specific applications such as foliar spraying and cut stump treatments. A brightly colored marking agent shall P:\HCRl 102C -Calavera Dam Routine Maintenance 2015\Conceptual Mitigation Plan\Calavera_CMP _101515.docx (10/20/2015) LSA ASSOCIATES, INC. OCTOBER 2015 CONCEPTUAL MITIGATION PLAN CALAVERA DAM ROUTINE MAINTENANCE PROJECT be used in all applications. The material shall be a nontoxic, water-soluble liquid such as Blazon by Milliken Chemicals or the equivalent. Spraying of herbicides shall be conducted only when weather conditions are conducive to effective uptake of the herbicide by the targeted species (e.g., sunny, dry, and when target plants are actively growing), and when wind conditions are such that herbicide drift is nonexistent (5 miles per hour or less). During herbicide application, native species must be protected. Native species killed by herbicide treatment shall be replaced in the following planting season, and all costs associated with the replacement planting (e.g., plant material costs, monitoring fees, and coordination expenses) shall be the responsibility of the Conltractor. The Project Biologist will periodically monitor the site and will quantify the damage to native plant from herbicide applications to the greatest extent possible. If weeds become established in the mitigation site prior to planting, weed eradication shall be performed prior to plant material installation. The Project Biologist will make this determination. Soil Testing Prior to site preparation and planting, the landscape contractor shall submit soil samples to a laboratory for a standard agricultural suitability analysis. If the results of the analysis indicated the need for soil amendments, they shall be applied during the site preparation phase and prior to planting. Site Preparation Due to anticipated soil compaction from equipment during palm tree and other nonnative species eradication, the landscape contractor shall decompact the soil using low pressure equipment and hand tools. Additionally, the landscape contractor shall perform minor grading at mitigation area 1, as necessary, to create multiple rivulets that will flood during rain events to aid in riparian restoration/ enhancement effort. Installation of Cuttings and Container Plants Cutting and container plant installation should occur prior to or during the rainy season to allow for establishment to the extent that the cuttings and container plants can survive high-flow events, preferably between October 1 and November 1, with replacements for failed plants to be installed before the following March 31 of the following year. Seed Application The landscape contractor shall apply the native seed mix listed in Table B to the three mitigation areas immediately following the installation of cuttings and container plants. P:\HCRI 102C -Calavera Dam Routine Maintenance 2015\Conceplual Mitigation Plan\Calavera_CMP _IOl515.docx (10/20/2015) LSA ASSOCIATES, INC. OCTOBER 2015 Five-Year Maintenance Program CONCEPTUAL MITICATION PLAN CALAVERA DAM ROUTINE MAINTENANCE PROJECT Upon completion of the wananty period for installation of plant materials at the mitigation site, a 5- year maintenance program shall commence. Maintenance includes weed, trash, and debris removal and any feasible efforts necessary for the site to meet the performance standards. The maintenance program is discussed in greater detail further below. The mitigation area will be monitored for a minimum of 5 years before being turned over to the City's preserve management contractor, Center for Natural Lands Management (CNLM), for long-term management after being signed-off by CDFW and/or other regulating agencies. PLANTING PLAN Plant Materials When feasible, propagules for shrub and tree container plantings and cuttings shall be collected from plants growing on the project site or in the local area. The use of site-specific materials-those adapted to local conditions-increases the likelihood that revegetation will be successful and maintains the genetic integrity of the local ecosystem. Seed will be sourced from local vendors. Arrangements shall be made well in advance of planting to ensure that the adequate donor sites are available and accessible. Donor sites are subject to the approval of the Project Biologist. Tables A and B list the specified container plants/cuttings and seed to be installed at the mitigation site. Table A: Riparian Scrub Plant Palette Plant Species Common Name Spacing Plant Materials Quantity Anemopsis califomica yerba mansa 1-3' in clusters one-gallon 75 containers Baccharis salicifolia mule fat 4-6' locally obtained 50 cuttings Platanus racemosa western sycamore 20' deep 15-gallon 10 containers Populus fremontii ssp. western cottonwood 12' deep 15-gallon 10 fremontii containers Quercus agrifolia var. coast live oak 20' deep 15-gallon 5 agrifolia containers Rubus ursinus California blackberry 3-5' in clusters one-gallon 50 containers Salix exigua narrow-leaved willow 4-6' locally obtained 50 cuttings Salix gooddingii Gooding's black willow 4-6' locally obtained 100 cuttings Salix laevigata red willow locally obtained 50 cuttings P:\HCR1102C-Calavera Dam Routine Maintenance 2015\Conceptual Mitigation Plan\Calavera_CMP _101515.docx (10/20/2015) LSA ASSOCIATES, INC. OCTOBER 2015 Table A: Riparian Scrub Plant Palette Plant Species Common Name Salix lasiolepis arroyo willow 4-6' CONCEPTUAL MITIGATION PLAN CALAVERA DAM ROUTINE MAINTENANCE PROJECT Spacing Plant Materials Quantity locally obtained 100 cuttings Sambucus nigra ssp. caerulea Mexican elderberry 12-16' deep one-gallon 25 containers Table B: Wetland Seed Mix (0.788 acre) = Plant Species Common Name Pounds/Acre Total Quantity (pounds) Baccharis salicifolia mule fat 1.00 0.788 Heliotropium curassavicum alkali heliotrope 1.00 0.788 Leymus condensatus giant wild-rye 1.50 1.182 Leymus triticoides beardless wild rye 7.00 5.516 Pluchea odorata marsh fleabane 0.25 0.191 Scirpus acutus bultule 2.00 1.576 Scirpus robustus common bulrush 2.00 1.576 Cuttings Mule fat and willow cuttings will consist of locally obtained cuttings from 0.5 inch to 1 inch in diameter and approximately 36 to 48 inches in length. The cuttings shall be planted within 48 hours of being harvested and shall be kept moist. Cuttings not planted within 48 hours after cutting or allowed to dry out shall not be used. No more than 20 percent of any donor plant may be harvested. At the time of collection, the basal ends shall be cut at approximately a 45-degree angle, and if terminal ends are cut, they will be cut perpendicular to the length of the cutting to maintain the proper orientation during installation. Prior to installation, the basal ends of the moist cuttings will be treated with rooting hormone and allowed to dry in open air and out of direct sunlight for 30 to 45 minutes. The cuttings shall be installed in augered holes to a minimum depth of 24 inches (Figure 5). Container Plants When local propagules are not available or cannot be collected at least six months prior to the fall planting, materials grown from other sources within north San Diego County shall be substituted, as approved by the Project Biologist. The Applicant or his/her agent will order and purchase container plant materials from a qualified nursery specializing in Southern California native plant species propagation. The Project Biologist shall periodically inspect the nursery stock during the growing phase. Container plants must have healthy, well-developed root systems and shall not be rootbound. In addition, container plants shall be free of dead or dying branches and branch tips, with all foliage of a normal density, size, and color. P:IHCRI 102C -Calavera Dam Routine Maintenance 2015\Conceptual Mitigation Plan\Calavera_CMP _IOl515.docx (10/20/2015) Top Cut Square~ 4" Hand-Compacted~ Earthen Berm ~ 24" 36" LS A l:\HCR 1102CIG\Cutting Detail.cdr (9/4/1 5) ------Locally Obtained 36"-48" _.-------Mule Fat or Willow Cutting ~~;:;;:§~---...!~-Backfill Planting Hole With Native Soil 18" FIGURES Calavera Dam Routine Maintenance Project Mulefat and Willow Cutting Planting Detail LSA ASSOCIATES, INC, OCTOBER 2015 Seed CONCEPTUAL MITIGATION PLAN CALAVERA DAM ROUTINE MAINTENANCE PROJECT Manual broadcast seeding and raking is the preferred method for distributing seed on the mitigation site. However, there are several other methods for seeding (e.g., hydroseeding, imprinting) that have been used successfully in numerous mitigation projects. Regardless of the application method, seeded areas will be thoroughly watered with a fine spray as soon as possible after application (i.e., same day or next day). A protective layer of certified weed-free straw or other carbon based mulch (e.g., bark, wood chips) will then be spread over seeded areas. Carbon-based mulch materials absorb the soil nitrogen, reducing the high nitrogen levels that promote rapid weed growth. The carbon based materials later breakdown providing a slow release of nitrogen back to the native plants within a year or two. The seeded area will then be thoroughly watered again following mulch application. Plant materials shall be sufficiently hardened. The acceptance of the plant materials will be the sole responsibility of the Contractor. The Project Biologist shall inspect a representative sample of all plant stock and shall reject those plants that do not meet these standards. Planting Technique All cuttings and container plants shall be spaced in natural-looking patterns so that each species is distributed throughout the planting area and plants are not crowded together. Plants shall be arranged in species groups at the direction of the Project Biologist based on microhabitat conditions present, the recommended spacing guidelines in the plant palette, and the goals for the areas to receive plantings. All container plants are to be installed according to the following specifications (Figure 6): • All planting holes shall be augered, have vertical sides with roughened surfaces, and be at a minimum three times as deep as the container plant's root ball and two times as wide. For cuttings, the holes shall be augered to a minimum of 36 inches. For planting holes excavated in giant reed root balls, it is recommended that the planting hole depth be augered as deep as possible to promote deep root development. • Prior to augering, all vegetation shall be removed within a 24-inch-diameter around the planting location. Should a desired native plant species occur in the proposed area to be cleared, the planting hole locations shall be adjusted to avoid impact to any sensitive species. • Any roots wrapped around the sides of the container shall be pulled loose from the root ball. The sides of the root ball shall be scarified to promote new root development. • Plants shall be planted with the roots untangled and laid out in the planting hole. • Roots shall be adequately protected at all times from sun and/or drying winds. • After excavation and before planting, the planting holes shall be filled approximately half full with water, backfilled with thoroughly broken up native soil, then completely filled with water to minimize soil settling after installation. • Plants shall be set in the planting holes so that the crowns of the root balls are between one-half inch and three-quarters inch above finish grade. The crowns of the plants shall not be depressed. P:\HCR1102C -Calavera Dam Routine Maintenance 2015\Conceptual Mitigation Plan\Calavera_CMP _101515.docx (10/20/2015) Root Crown at 1" Above Finished Grade Dug or Augered Hole 2x Deep, 1.5 X Container Width LS A l:\HCR 1102C\G\Contaioer Plant Detail.cdr (9/4/15) ~~~---:--Backfill Pla nting Hole 30" With Native Soil FIGURE6 Calavera Dam Routine Maintenance Project Container Planting Detail LSA ASSOCIATES, INC, OCTOBER 2015 CONCEPTUAL MITIGATION PLAN CALAVERA DAM ROUTINE MAINTENANCE PROJECT • A watering basin 24 inches in diameter shall be constructed around each plant (applies to cuttings also). • Each plant is to be individually watered at the time of planting, with sufficient water to reach the lower roots. l\1ycorrhizallnoculum Mycorrhizal fungi inoculum shall be used in a form suitable for cutting and container plant installation, at the Contractor's choice, so long as they meet the following specifications. The chosen product used must contain only mycorrhizae, roots, and growing medium. Mycorrhizal inoculum that contains high concentrations of humus and humic acids, known to reduce the potency of the inoculum, are not acceptable. It is the responsibility of the Contractor to furnish mycorrhizal inoculum that meets or exceeds these specifications. Once a source is chosen, the Contractor shall submit documentation of order along with product specifications to the Project Biologist for acceptance at a minimum of two weeks prior to use. Mycorrhizal fungi inoculum shall consist of endomycorrhizal and ectomycorrhizal propagules. Endomycorrhizal Inoculum. Endo (arbuscular) mycorrhizal inoculum shall consist of spores, mycelium, and mycorrhizal root fragments in a solid carrier suitable for handling by hydro-seeding or dry seeding equipment. The carrier shall be the material in which the inoculum was originally produced, and may include organic materials, vermiculite, perlite, calcinid clay, or other approved materials consistent with mechanical application and with good plant growth. Each endomycorrhizal inoculum shall carry a supplier's guarantee of numbers of propagules per unit weight or volume of bulk material. When more than one fungal species is claimed by the supplier, the label shall include a guarantee for each species of mycorrhizal fungus claimed. Endomycorrhizal inoculum is a live material: it shall be transported and stored in vehicles, containers, and in application equipment with a temperature ofless than 32° C (90° F). Inoculum shall be applied at the rate of 8,900,000 live propagules per hectare (3,600,000 live propagules per acre) based on the supplier or an analysis returned by an independent laboratory. Ectomycorrhizal Inoculum. Ectomycorrhizal inoculum shall consist of spores and/or vegetative mycelium and mycorrhizal root fragments of one or more ectomycorrhizal host plants specified for the site. Ectomycorrhizal inoculum shall be placed in the planting holes of each suitable host plant species in such a way that new root growth will encounter the inoculum as early as possible. P:\HCR1102C -Calavera Dam Routine Maintenance 2015\Conceptual Mitigation Plan\Calavera_CMP _101515.docx (10/20/2015) LSA ASSOCIATES, INC. OCTOBER 2015 Irrigation CONCEPTUAL MITIGATION PLAN CALAVERA DAM ROUTINE MAINTENANCE PROJECT The Contractor is responsible for the survival and establishment of the installed plant materials. Supplemental irrigation shall be supplied as necessary by use of a temporary irrigation system, hand watering, or other means subject to approval of the Project Biologist until the plantings are established as determined by the Project Biologist. All costs associated with any system shall be included in the maintenance budget. Any proposed temporary system design would be subject to review and approval by the Project Biologist. The Contractor will remove the system when the Project Biologist and City agree that supplemental watering is no longer necessary to ensure survival of the installed plant materials. The City shall provide the location of a point of connection to a water source if any exists. Otherwise, the Contractor will provide a water source subject to approval of the Project Biologist. 120-DAY WARRANTY PERIOD Following installation of the specified plant materials, the Contractor shall be responsible for maintaining the mitigation site for a 120-day period. Maintenance during the 120-day warranty period shall follow the specifications outlined in the Maintenance Activities section, below. All plant materials shall be in a healthy and flourishing condition of active growth 120 days from the date of installation. All container plants that have died or are displaying unreasonably slow growth shall be replaced with the same type and size species, at the cost of the Contractor. The Project Biologist shall determine the need to replace installed plant materials. All delays in the completion of planting installation that extend the installation into more than one planting season shall extend the warranty period accordingly. Final Acceptance Work shall be accepted at the discretion of the Project Biologist upon satisfactory completion of all work, including the maintenance period but exclusive of replacement of plant materials during the warranty period. All plant materials shall be guaranteed for 120 days. Any installed plants that have died or that display unreasonably slow growth shall be replaced with the same species at the cost of the Contractor. The Project Biologist shall determine the need to replace plant materials. Final acceptance shall be granted when all plant materials have been planted in accordance with the planting plan specifications and have demonstrated acceptable health and growth. MAINTENANCE The maintenance period commences upon final acceptance of the installed plant materials and shall continue until the performance standards have been achieved to the satisfaction of the CDFW. Diligent maintenance of the mitigation site until the plants are established is critical to this plan, which was developed to mitigate the loss of biological resources. During and following the 120-day warranty period, the mitigation site will require regular maintenance, consisting primarily of weed P:\HCRl 102C-Calavera Dam Routine Maintenance 2015\Conceptual Mitigation Plan\Calavera_CMP _101515.docx (10/20/2015) LSA ASSOCIATES, INC. OCTOBER 20!5 CONCEPTUAL MITIGATION PLAN CALAVERA DAM ROUTINE MAINTENANCE PROJECT control, erosion control, pest control, protection from vandalism, trash and debris removal, and supplemental irrigation. All plantings shall be maintained for a minimum of 5 years following acceptance of installation. In general, maintenance activities shall include any activities required to meet the performance standards. Weed Control To prevent weeds and exotic plants from outcompeting native plant species for natural resources (e.g., water, sunlight, space, and nutrients), weeds and ruderal invasive plants shall be controlled in the mitigation site for an anticipated 5 years, or until the performance standards have been achieved, as determined by the Project Biologist and subject to the approval of the CDFW. When feasible, all nonnative invasive weeds shall be removed manually. In circumstances where manual removal is not effective, it may be appropriate, at the discretion of the Project Biologist, to utilize systemic herbicides that have been approved by the EPA (see Herbicide Treatment Guidelines, above). If more than 10 percent of the vegetative cover is from weeds greater than 6 inches in height, all weeds present in the mitigation site shall be removed before they produce seed or reach a height of 8 inches, whichever occurs first. Any plant species determined by the Project Biologist to be detrimental to the success of the mitigation efforts shall be removed. All removed weed material shall be taken away from the site and legally disposed of at an off-site location. Pest Control The control of damage to the revegetation efforts by insects and herbivores shall be the responsibility of the Contractor using only those methods approved by the Project Biologist. The Contractor shall implement control measures at the earliest sign of damage, which may require fencing or caging of plant materials. Fertilization No chemical fertilizers shall be used in the mitigation site without prior written authorization from the Project Biologist. Pruning and Leaf Litter Dead branches and leaf litter provide habitat for a variety of species. Because the goal is to replicate naturally-occurring habitat, no pruning or leaf litter removal of native species shall take place within the mitigation site. The leaf litter and branches from native plant species shall be left in place. Removal of Trash and Debris The mitigation site shall be kept neat, clean, and free of all non-vegetative debris and trash (except for nonnative vegetative debris accumulated during weed removal activities, which shall be removed as specified). P:\HCRI 102C -Calavera Dam Routine Maintenance 2015\Conceptual Mitigation Plan\Calavera_CMP _l015!5.docx (10/20/2015) LSA ASSOCIATES, INC. OCTOBER 2015 CONCEPTUAL MITIGATION PLAN CALAVERA DAM ROUTINE MAINTENANCE PROJECT Replacement of Dead or Diseased Plant Materials For 5 years after the final acceptance of installation, plantings shall be surveyed annually in the spring. Dead or diseased plants shall be replaced at the discretion of the Project Biologist.1 MONITORING REQUIREMENTS AND PERFORMANCE STANDARDS Performance Objective and Standards The ultimate goal is the establishment of native riparian scrub species to the point that nonnative species are excluded and the native species are self-sustaining without human intervention. All plantings shall be monitored for a minimum of five years following acceptance of installation. All mitigation planting shall have a minimum 100 percent survival the first year and 80 percent survival thereafter and/or shall attain 60 percent cover of native species after three years and 80 percent cover of native species after five years. If the survival and cover requirements have not been met, the Landscape Contractor is responsible for replacement planting to achieve these requirements. Replacement plants shall be monitored with the same survival and growth requirements for five years after planting. Over the 5-year period following installation of plant materials, the following observable characteristics shall be considered in demonstrating progress toward the successful establishment of a healthy and functional mitigation site: .. • • • • • • • Noticeable growth and new branching for container plantings and cuttings; Lack of significant erosion; Good root development of desired (native) species, which will be checked by a pull test conducted by the Project Biologist; Low mortality for cuttings (no more than 20 percent);2 Evidence of resistance to invasion by nonnative species (no more than 20 percent composition of nonnative species); Use of habitat by indicator wildlife species; Regeneration of the newly established plant community; and Continued survival and growth of planted species without supplemental irrigation (i.e., use of supplemental irrigation for a maximum of 3 years). Upon final acceptance of the installation, vegetative cover from installed species will be taken into consideration over individual plant mortality; not all dead or diseased plant material may require replacement. Survivorship of individual container plants and cuttings is considered important in the first year of a restoration effort; however, once plant material matures, vegetative cover is considered a better indicator of a successful revegetation effort. P:\HCRl I02C -Calavera Dam Routine Maintenance 2015\Conceptual Mitigation Plan\Calavera_CMP _IOl515.docx (10/20/2015) LSA ASSOCIATES, INC. OCTOBER 2015 Ultimate Perf ormancie Standards CONCEPTUAL MITIGATION PLAN CALAVERA DAM ROUTINE MAINTENANCE PROJECT Ultimately, the site must meet the following performance standards: • Establishment of native species to the point that nonnative weeds account for no more than 5 percent of the vegetative cover. Some nonnative species have become so naturalized within southern California that eradication to less than 5 percent vegetative cover is not feasible (e.g., annual rabbitsfoot grass [Polypogon monspeliensis] within a drainage). If there is annual rabbitsfoot grass in lthe upstream watershed, permanent eradication is not practical. This criterion is subject to some variatiion at the discretion of the Project Biologist and consultation with the CDFW. • Attainment of 80 percent vegetative cover of the appropriate native species. • Attainment of O percent ground cover by nonnative trees and shrubs. • Establishment of naltive species to the point that the site consists of no more than 20 percent bare ground. • At the completion of the monitoring period, the mitigation site shall have received no supplemental irrigation for a period of two consecutive years. • The mitigation effort may be considered successful if observations and other qualitative evidence indicate that wildlife typically associated with riparian habitats is utilizing the mitigation site, thus demonstrating the function and value of the habitat in the mitigation site. Acceptance of the mitigation site as successful based on these criteria will require concurrence from the CDFW that the site can be released from further maintenance and monitoring obligations. Monitoring Methods Monitoring During Site Preparation and Installation. All phases of site preparation, exotic weed eradication, installation of plant materials, and warranty period maintenance shall be monitored to the extent necessary to enforce compliance with this mitigation plan. The Project Biologist will consult with the Contractor to determine whether field revisions to the plans are necessary. If field revisions are made, they will be documented in the as-built report. The Project Biologist will notify the City when the mitigation measures described in this plan commence and at critical periods ( e.g., prior to removal of nonnative trees, prior to installation of plant materials). Performance and Maintenance Monitoring. Monitoring shall be conducted at least once per month for the first year and up to eight times per year thereafter until the site has been released from further maintenance and monitoring obligations. Frequent checks are recommended to detect potential problems at the early stages. At a minimum, the Project Biologist shall monitor the following indices: • Success of exotic plant eradication efforts; • Plant survival and vegetative cover; and P:\HCRl 102C -Calavera Dam Routine Maintenance 2015\Conceptual Mitigation Plan\Calavera_CMP _101515.docx (10/20/2015) LSA ASSOCIATES, INC, OCTOBER 2015 • Presence and density of weeds. CONCEPTUAL MITIGATION PLAN CALAVERA DAM ROUTINE MAINTENANCE PROJECT During each monitoring site visit, the Project Biologist shall document the general condition of the mitigation site and evaluate it for compliance with the maintenance specifications and progress toward achieving the performance standards. The results of these visits will be summarized in field memoranda submitted to the City and Contractor within two weeks following each site visit. When finalized, these memoranda will be summarized and incorporated into the annual reports to be submitted to the City, Contractor, and CDFW. The Project Biologist shall report the findings to the City and to the Contractor through the initial post-installation warranty period. Dead or dying plants shall be replaced immediately upon notification. Performance monitoring will continue until the site is released from further maintenance and monitoring obligations and will address plant survival, growth, and vegetative cover requirements. In addition to observations made during monitoring visits, one day of wildlife monitoring will be conducted in the spring of each year following the installation of cuttings, and the results will be reported in each annual report. Quantitative data collection (e.g., line transects or point intercept transects) will be conducted to assess progress toward achieving the performance standards and incorporated into annual reports. The Project Biologist will utilize observations made during monitoring site visits to direct maintenance activities, to recommend any necessary remedial measures, and to evaluate the overall revegetation process. The Project Biologist may monitor the implementation of weeding events and be available to advise maintenance crews if necessary. If the mitigation site needs major corrective actions, the City and CDFW shall be notified. When directed by the Project Biologist, the Contractor will promptly implement recommended actions and the Project Biologist will document the actions in the subsequent annual report. Annual Reports. Annual monitoring reports will be submitted to the City and CDFW, beginning with the as-built report to be prepared following acceptance of plant installation. These reports will evaluate the performance and maintenance of the mitigation site and will include photographs taken from fixed photo points. The reports will summarize the events of the previous year. Additionally, the reports will include a brief discussion, recommendations, and conclusion. MEASUREMENT AND PAYMENT Mobilization The lump sum for the bid item "Mobilization" shall not exceed 2 percent of the total contract price and shall include full compensation for providing insurance, financing, and moving equipment to the job site and all mobilization and administration for the entire period; no additional payment will be made. P:\HCRl 102C -Calavera Dam Routine Maintenance 2015\Conceptual Mitigation Plan\Calavera_CMP _IOl515.docx (10/20/2015) LSA ASSOCIATES, INC. OCTOBER 2015 Invasive Weed Eradication CONCEPTUAL MITIGATION PLAN CALAVERA DAM ROUTINE MAINTENANCE PROJECT The lump sum for invasive weed eradication shall be paid following acceptance of the initial weed eradication effort. Costs to conduct any additional invasive weed eradication will be incorporated into the warranty period maintenance and long-term maintenance budgets. Installation of Cuttings and Container Plants The lump sum for installation of plant materials shall be paid in full upon accepted completion of the 120-day warranty period for each of the sites. Maintenance The lump sum for maintenance will be divided into 12 monthly payments in year 1, 6 bi-monthly payments in year 2, and 4 quarterly payments in years 3 through 5, to be paid following acceptance of the maintenance work performed each quarter, less 10 percent retention. The maintenance period commences upon acceptance of the warranty period. Penalties will be implemented to discourage noncompliance with these specifications and to prevent negligence. Penalties willl be levied if the site is in violation of these standards at any time during the maintenance period. Penalties are financial and vary in severity according to the severity of damage caused by noncompliance. A separate, more severe standard and corresponding penalty exist for allowing the weeds to set seed because this can cause the amount of nonnative seed in the soil seed bank to multiply exponentially. The Contractor will be eligible for payment as described above only if all of the contract requirements for maintenance are met continuously throughout each quarter. If the Contractor fails to meet the maintenance criteria, payment will not be approved for that pay period; such payments will be forfeited and liquidated damages may be incurred. All forfeited payments and liquidated damages shall be deducted from the amount of this contract. Penalties and liquidated damages shall be structured as follows: • If at any time the site contains more than 20 percent weed cover, the Contractor shall forfeit the payment for that quarter and shall incur liquidated damages of $100 per day of noncompliance. • If the site contains more than 10 percent cover of weeds that are in the seed production stage, the Contractor shall forfeit three quarterly payments. Retention Payment Upon completion and the City's acceptance of the mitigation site and the maintenance program, the Contractor may apply for payment of the balance of the 10 percent maintenance retention withheld, less liquidated damages. P:IHCRI 102C -Calavera Dam Routine Maintenance 2015\Conceptual Mitigation Plan\Calavera_CMP _101515.docx (10/20/2015) LSA ASSOCIATES, INC. OCTOBER 2015 LONG-TERM PRESERVATION CONCEPTUAL MITIGATION PLAN CALAVERA DAM ROUTINE MAINTENANCE PROJECT When the mitigation site has met the performance criteria and the City is released from further maintenance and monitoring responsibilities by the CDFW and/or other regulating agencies, the City's preserve management contractor, CNLM, will maintain the mitigation site as part of the HMP preserve areas. The City intends to file a Restrictive Covenant Agreement in lieu of a Conservation Easement because the City cannot grant a Conservation Easement to itself. Essentially, the Restrictive Covenant will secure the lands in an equivalent manner as a Conservation Easement. P:\HCRl 102C -Calavera Dam Routine Maintenance 2015\Conceptual Mitigation Plan\Calavera_CMP _IOl515.docx (10/20/2015) "' 160 FEET !lblt 1· SYCCIII Crfttrla LEGEND c:J Proposed ConsetVationfMaintained Area (3.630 acres) Proposed RestorationlEnhancement Area (0.773 acre) B Proposed Welland Creation Area (0.015 aae) Ultimate Vegetative Cover Performance Standards Native Cover I Nonnative Cover I Bare Ground Atleast80percenl I No more than 5 percent I No more than 25 percent "Container plants not meeting plant survival auccen criteria, as verified and recommended by the Project Bloqlst, shall be replaced and maintained at contraclot's expense until the success criteria has been met. .. UIX)O completion of the monitoring period, veg elation within the site should be adequetely established and wil be capable of surviving without aupplemenlal watering for the final two years, prior to completion. """The mltlgatlon site may be considered successful If qualitative observations are made that indic.ale wldtifearelhriving. LS A I I Lbs per Acre 7.00 "Container piant tags shal be submitted to the Proteet Biok)gist prior to lhe installation of container stocic. ··Container plants shall be placed within rewgetatlon area at the locations recorMleOOed and under the direction oftheProjectBlologlst. •••5ee<1 tags shall be submitted lo the Project Blologlst prior to application of seed. .... The seed mix is comprised of native plant species. Any potential subsliluUons must be approved by the Project Biologist prior to application of seed. ..... Soil shall be presoaked within 3 days of seeding to a depth of 6 inches, or as recommended by the Project Biologist. I1bt1 2· Summary and Scbtslult for Maintenance llonltorlno 10d RcPPrtlna for Prottct d~t2:Eamil -~ ---~t/ContfJlciol' ~ -~ Revegetation Profecl Biologist wil be As needed °' at Memos prepared by At suooassful lnstalalion responslblefofmonltoringl least once every lhe Biologist (based lnslalation(as Landscape contractor will be rwoweeks. on the reveoetatlon determined by the responslblefoflnstallation plancrlteria) Project Biologist) and maintenance 120dayWarranty Proje,c1Blologislwilbe "°""" Memos prepared by At the end of Ponod responsible IOf monitoring/ the Blologlst (based Warranty Period Landscape contractor wil be on the revegelatlon responsible for malnlenance plan criteria) 5-year mantenance Project fflologlslwil be Bknonlhly during Memos prepared by Monitoring memos will and monitoring responsible IOl'monltoring/ years1 and2,lhen the Blologlst (b&sed be submitted bi--Landscape contractor wil be quarterly IOI' years 3 on the revegetatlon monthly during years 1 responsible for malnlenance throogh5 plancrlleria) and2,lhenquarteriy foryeers3through5. Annual reports each year. CALAVERA DAM ROUTINE MAINTENANCE PROJECT (LSA Project No. HCR1102C) REVEGETATION PLAN ---------GENERAL REVEGETATION NOTES: 1. Revegetation of the mitigation site shall be in accordance with the Conceptual Mitigation Plan for the Calavera Dam Routine Maintenance Project, prepared by LSA Associates (LSA) and in accordance with lhe City of Carlsbad Habitat Management Plan (HMP). 2. Prior to revegetation and/or plant installation, the Project Biologist shall provide recommendations to the landscape contractor or qualified City maintenance staff as to the topsoil relocation, re-compaction (e.g. max 75 percent within the top 8 inches), and/or preparation for revegetation purposes to be done by the contractor. 3. All plantings shall be monitored for a minimum of five years following acceptance of installation. All mitigation planting shall have a minimum 100 percent survival the first year and 80 percent survival thereafter and/or shall attain 60 percent cover of native wetland species after three years and 80 percent cover of native species after five years. If the survival and cover requirements have not been met, the contractor is responsible for replacement planting lo achieve these requirements. 4. Revegetation of manufactured slopes and other disturbed areas adjacent to areas of native vegetation shall be accomplished in a manner so as to provide visual and horticultural compatibility with the indigenous native plant materials. 5. Invasive plant species, including but not limited to those listed in the California Invasive Plant Council's {Cal-lPC) Invasive Plant Inventory, are prohibited and shall be eradicated and removed by the contractor. Native plant species shall be used in naturalized areas. 6. Revegetation and erosion control timing - all required revegetation and erosion control shall be completed within 30 calendar days of the completion of grading or disturbance in order to start the 120-day Warranty Period, or as recommended the Project Biologist. 7. All slopes 3:1 or greater shall require biodegradable erosion control blanket or other slope protection methods provided by the contractor as recommended by the Project Biologist prior to the installation of the revegetation, or in the event of slope or restoration failure. 8. All mulch groundcover used shall be clean, free from weeds, seeds, and debris as certified by the supplier, as applicable. 9. Contractor shall correct all soil erosion, and shall repair and/or replace all above ground erosion control Best Management Practices (BMPs) implements damaged during the 120-day Warranty Period and throughout the 5-year maintenance and monitoring period. Any above-ground erosion control measures such as, but not limited to, silt fencing, gravel bags, fiber rolls and/or hay bales shall be removed by lhe contractor following acceptance of lhe 5-year maintenance and monitoring period by the Project Biologist. All hay/straw products shall be un-decaying, clean and free of weeds, seeds, and debris. 10. Rope or wire strung on metal I-posts shall be installed around the three mitigation areas and maintained by the contractor at the installation of all revegetation plant materials through the 120-day Warranty Period, and until the end of the 5 year maintenance and monitoring period. At the discretion of City Staff and the Project Biologist, and following acceptance of the 5-year maintenance and monitoring period by the resource agencies, the contractor may be asked to remove all rope/wire and I-posts. 11. Contractor shall remove all trash and/or debris from the revegetation site prior to and following the revegetation installation, and until the end of the 5-year maintenance and monitoring period. Contractor shall remove all temporary irrigation lines and appurtenances following acceptance of revegetation by the resources agencies. Temoorarv lrriaatioo· 1. Under the direction of the Project Biologist, temporary irrigation will be applied as follows: 2. The contractor shall install a temporary irrigation system in accordance with the approved comprehensive irrigation plan. Contractor shall provide all irrigation lines and appurtenances to function automatically and in accordance with the plan and make any adjustments necessary to meet the success criteria per Project Biologist recommendations . 3. Temporary irrigation shall be provided by the contractor for a period sufficient to establish plant material and to provide vegetative cover that prevents soil erosion. 4. Irrigation shall be performed in a manner that avoids runoff, seepage, and overspray onto adjacent properties, non· irrigated areas, walls, roadways, or structures. 5. The water delivery rate shall be matched to the slope gradient and the percolation rate of the soil. 6. Irrigation shall deliver water sufficiently and uniformly, and shall be appropriate to the needs of the plant materials. 7. Overwatering as evidenced by soggy soils, standing water, runoff in street gutters and other similar conditions shall be managed and prevented. 8. If the Project Biologist recommends an alternative irrigation method such as truck watering, all vehicles shall stay on the permanent access routes and shall not irrigate beyond the revegetation boundary. 9. Vegetation within the site should be adequately established and capable of surviving withoul supplemental watering for the final two years of the 5-year maintenance and monitoring period. 1. The specified seed mix shall be applied to the areas to be revegetated. Manual broadcast seeding and raking is the preferred method for distributing seed on the mitigation areas. However, hydroseeding is also acceptable. Regardless of the application method, seeded areas will be thoroughly watered with a fine spray as soon as possible after application (i.e., same day or next day). A protective layer of certified weed-free straw or other carbon based mulch (e.g., bark, wood chips) will then be spread over seeded areas. The seeded area will then be thoroughly watered again following mulch application. 2. Seeding shall occur only after the Project Biologist has observed and approved that the site has been properly prepared. 3. Seed shall be applied between October 1 and March 1 during the rainy season. 4. Contractor shall retain and submit all seed tags for seed products to be used to the Project Biologist prior to application. CONCEPTUAL PLANTING LAYOUT Not to Scale: Shows Representative Spacing and Placement % Anemopsis californica yerba mansa ® Baccharis salicifolia mule fat .... Platanus racemosa western sycamore * Populus fremontii ssp. fremontii western cottonwood ~ Quercus agrifolia var. agrifolia coast live oak * Rubus ursinus California blackberry • Salix exigua narrow-leaved willow It Salix gooddingii Gooding's black willow ~ Salix laevigata red willow * Salix lasiolepis arroyo willow + Sambucus nigra ssp. caerulea Mexican elderberry CONTAINER PLANT DETAILS Root Crown at 1/2" Above Finished Grade Plant Material PLANTING DETAIL SLOPE PLANTING DETAIL Top Cut Square Finished Grade 3" Hand-Compacted Earthen Berm "' Locally Obtained 36" ~--------'>.. ----Mule Fat or Willow Cutting .-----Cutting Planted with Buds 3" Hand-Compacted 1n Upward Direcllon. Earthen Berm 36" CUTTING PLANTING DETAIL GENERAL REVEGETATION NOTES /Cont): 5. If the contractor chooses to distribute seed via hydroseed, the following directions shall be followed: Bonded Fiber Matrix (BFM) shall be applied at the minimum rate of 1,500 pounds per acre; hydropost premium compost, or equal, shall be applied at the minimum rate of 1,000 pounds per acre; BFM and hydropost compost shall be uniformly spread and "tacked" with Type 10 mulch (stabilizing emulsion) binder at a minimum rate of 150 pounds per acre. The binder shall be an organic derivative or processed organic adhesive, or as directed by the Project Biologist. A wetting agent consisting of one ton per acre agricultural gypsum (95% Alkyl Polyethylene Glycol Ether or as approved by the Biologist) shall be applied as per manufacturer's recommendations, or as recommended by the Biologist. Equipment used for the application of slurry shall have a built-in agitation system to suspend and homogenously mix the slurry, the slurry mix shall be dyed green. The equipment must have a pump capable of applying slurry uniformly. Container Plant/Cutting Procedures: 1. The contractor shall supply and plant the container plants and cuttings as specified in the plant palettes and container plant details and under direction of the Project Biologist. 2. Container plants shall be procured from a nursery qualified to propagate and care for plant species. Source for any native container plant materials shall originate within 25-miles from the vicinity within San Diego County to the extent practical (e.g. within a 25 mile radius), or as approved by the Project Biologist. 3. Container plant material must be delivered to the project site at the appropriate time, in a healthy and vigorous condition and labeled clearly. The Project Biologist will reject plant material delivered prior to the scheduled planting date. Specimens showing evidence of disease, mishandling, defects or damage, over or under-watering, or other deficiency at the time of delivery will be rejected. 4. Container plants will be distributed throughout the areas lo be revegetated by the contractor for review and approval by the Project Biologist. The suggested container plant installation procedure shall be performed as directed by the Project Biologist. 5. Mule fat and willow cuttings will consist of locally obtained cuttings from 0.5 inch to 1 inch in diameter and approximately 36 to 48 inches in length. The cuttings shall be planted within 48 hours of being harvested and shall be kept moist. Cuttings not planted within 48 hours after cutting or allowed to dry out shall not be used. No more than 20 percent of any donor plant may be harvested. At the time of collection, the basal ends shall be cut at approximately a 45-degree angle, and if terminal ends are cut, they will be cut perpendicular to the length of the cutting to maintain the proper orientation during installation. Prior to installation, the basal ends of the moist cuttings will be treated with rooting hormone and allowed to dry in open air and out of direct sunlight for 30 to 45 minutes. The cuttings shall be installed in augered holes to a minimum depth of 24 inches. 6. Mycorrhizal fungi inoculum shall be used in a form suitable for cutting and container plant installation, at the Contractor's choice, so long as it meets the following specifications. The chosen product used must contain only mycorrhizae, roots, and growing medium. Mycorrhizal inoculum that contains high concentrations of humus and humic acids, known to reduce the potency of the inoculum, are not acceptable. It is the responsibility of the Contractor to furnish mycorrhizal inoculum that meets or exceeds these specifications. Once a source is chosen, the Contractor shall submit documentation of order along with product specifications to the Project Biologist for acceptance at a minimum of two weeks prior to use. Mycorrhizal fungi inoculum shall consist of endomycorrhizal and ectomycorrhizal propagules . Maintenance Requirements: 1. The mitigation areas shall be maintained for a period of not less than 5 years or as determined by the Project Biologist. All revegetated areas shall be maintained by the contractor until final approval by the natural resource agencies. The maintenance period begins on the first day following the acceptance of the installation (at the end of 120-day Warranty Period) and may be extended at the determination of the Project Biologist and City Staff if the site has not met the success criteria. 2. Prior to final approval, City Staff may require corrective action including, but not limited to, weed eradication and removal, replanting, the provision or modification or irrigation systems, and the repair of any soil erosion or slope slippage, in consultation with the Project Biologist. 3. Weeding, herbicide, and/or pesticide application shall be done regularly by the contractor. Weeding shall be done at a minimum frequency of bi-weekly until the end of the 120-day Warranty Period, bi-monthly during Years 1 and 2 of the 5-year maintenance period, and then quarterly for the remaining 3 years of the maintenance period, unless a greater frequency is warranted. Weeds shall be properly disposed of offsite. Contractor shall obtain approval from the Project Biologist prior to herbicide/pesticide application, and shall apply herbicide/pesticide per manufacturer's recommendation and any State or Federal guidelines. Contractor must possess a valid state pesticide and/or herbicide license at all times. 4. Contractor shall control weeds as identified by the Project Biologist such that no weed cover exceeds 5% of the project site, before they exceed twelve inches (12") in height, and before they set seed. Areas where weeding creates in excess of 25 square feet of bare soil shall be replanted and maintained by contractor. CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE SOUTH COAST REGION 3883 RUFFIN ROAD SAN DIEGO, CALIFORNIA 92123 STREAMBED ALTERATION AGREEMENT NOTIFICATION No. 1600-2013-0241-RS LAKE GALA VERA AND CALAVERA CREEK CITY OF CARLSBAD CALAVERA DAM ROUTINE MAINTENANCE PROJECT This Streambed Alteration Agreement (Agreement) is entered into between the California Department of Fish and Wildlife {CDFW) and the City of Carlsbad (Permittee) as represented by Sherri Howard. RECITALS WHEREAS, pursuant to Fish and Game Code (FGC) section 1602, Permittee notified CDFW on November 22, 2013, that the Permittee intends to complete the project described herein. WHEREAS, pursuant to FGC section 1603, CDFW has determined that the project could substantially adversely affect existing fish or wildlife resources and has included measures in the Agreement necessary to protect those resources. WHEREAS, Permittee has reviewed the Agreement and accepts its terms and conditions, including the measures to protect fish aRd wildlife resources. NOW THEREFORE, Permittee agrees to complete the project in accordance with the Agreement. PROJECT LOCATION The project is located at Lake Calavera and Calavera Creek, in the City of Carlsbad, County of San Diego, State of California; Latitude 33.17002, Longitude -117 .28696; U.S. Geological Survey 7.5-minute map San Luis Rey quadrangle, Section 34, Township 11 south, Range 4 west, San Bernardino meridian; Assessor's Parcel Number 168-04-002. PROJECT DESCRIPTION The project is limited to lake and stream impacts associated with the Calavera Dam Routine Maintenance Project. All trees and shrubs will be removed within the area between the open water and the dam spillway structure as well as an area near the outlet structure at the downstream end of the dam. Herbaceous vegetation such as cattails, rushes, and sedges will be removed along the upstream face of the dam. Notification #1600-2013-0241-R5 Streambed Alteration Agreement Page 2 of 17 The project includes th1~ initial tree and shrub removal as well as routine maintenance of the work areas to keep the areas clear of significant vegetation. The initial tree, shrub, and other vegetation removal activities will be accomplished by cutting vegetation at or above the ground level, leaving the roots in place and not excavating or otherwise disturbing the soil layer. Heavy equipment may be used to remove vegetation along the upstream face of the dam only if staged at paved areas on the top of the dam. Routine maintenance of the spillway and outlet structure areas is limited to mowing vegetation or otherwise removing vegetation in the project area on a regular basis with the use of hand tools without excavating or otherwise disturbing the soil layer. Heavy equipment may be used during vegetation maintenance activities to remove vegetation along the upstream face of the dam only if staged at paved areas on the top of the dam. After the initial vegetation removal, the project includes maintenance of the work area which will likely remain as low growing grasses and forbs that survive between maintenance events. It has been estimated that routine maintenance activities will occur approximately 3 to 6 times per year, depending on weather conditions. PROJECT IMPACTS Existing fish or wildlife resources the project could substantially adversely affect include: AMPHIBIANS -Pacific treefrog (Pseudacris regilla); REPTILES -red diamond rattlesnake (Crota/us ruber), western pond turtle (Emys marmorata ssp. pa/Iida), western fence lizard (Scefoporus occidentalis), two-striped garter snake (Thamnophis hammondi1), common side-blotched lizard (Uta stansburiana); BIRDS -red-winged blackbird (Age/aius phoeniceus), California quail (Caf/ipep/a ca/ifomica), Anna's hummingbird (Ca/ypfo anna), wrentit (Chamaea fasciata), American crow (Corvus brachyrhynchos), common raven (Corvus corax), common yellowthroat (Geothlypis trichas), house finch (Ha19morhous mexicanus), yellow-breasted chat ([cteria virens), California towhee (Me/ozone crissalis), spotted towhee (Pipilo maculatus), lesser goldfinch (Spinus psaltria), yellow warbler (Setophaga petechia), least Bell's vireo (Vireo bellii pusi/lus), mourning dove (Zenaida macroura); MAMMALS -pallid bat (Antrozous pallidus), California ground squirrel (Ostospermophilus beechey1), desert woodrat (Neotoma /epida), Audubon's cottontail (Sy/vilagus auduboni1), Botta's pocket gopher (Thomomys bottae); PLANTS -mulefat (Baccharis salicifolia), saltgrass (Oistichlis spicata), black willow (Sa/ix gooddingi1), arroyo willow (SaNx lasiolepis), black sage (Salvia mel/ifera), California bulrush (Scirpus califomicus), cattail (Typha spp.); and other riparian/wetland vegetation which provides habitat for those species, and all other aquatic and wildlife resources in the project vicinity. The adverse effects the project could have on the fish or wildlife resources identified above include: soil compaction or other disturbance to soil layer; increased turbidity; increased sedimentation (chronic or episodic); short-term release of contaminants (e.g., incidental from construction); loss or decline of riparian and/or emergent marsh habitat; colonization by exotic piant or animal species; Joss or decline of habitat; loss or decline of woody material; disruption to nesting birds and other wildlife; direct take of terrestrial species; and, chang1e in shading or insolation leading to vegetative change. Notification #1600-2013-0241-RS Streambed Alteration Agreement Page 3 of 17 The project will permanently impact 0.546 acres of stream bed, bank, channel, and/or associated wetland/riparian vegetation. These impacts include 0.110 acre of southern willow scrub, 0.246 acre of freshwater marsh, 0.011 acre of open water, and 0.179 acre of unvegetated area consisting of bare ground. As identified on Exhibit A, 0.052 acre of stream habitat within the project area has been previously impacted and mitigated under a separate project (Streambed Alteration Agreement 1600-2004-0101-R5). Therefore, new permanent impacts total 0.494 acre. MEASURES TO PROTECT FISH AND WILDLIFE RESOURCES 1. Administrative Measures Permittee shall meet each administrative requirement described below. 1.1 Documentation at Project Site. Permittee shall make the Agreement, any extensions and amendments to the Agreement, and all related notification materials and California Environmental Quality Act (CEQA) documents, readily available at the project site at all times and shall be presented to CDFW personnel, or personnel from another state, federal, or local agency upon request. 1.2 Providing Agreement to Persons at Project Site. Permittee shall provide copies of the Agreement and any extensions and amendments to the Agreement to all persons who will be working on the project at the project site on behalf of Permittee, including but not limited to contractors, subcontractors, inspectors, and monitors. 1.3 Notification of Conflicting Provisions. Permittee shall notify CDFW if Permittee determines or learns that a provision in the Agreement might conflict with a provision imposed on the project by another local, state, or federal agency. In that event, CDFW shall contact Permittee to resolve any conflict. 1.4 Project Site Entry. Permittee agrees that CDFW personnel may enter the project site at any time to verify compliance with the Agreement. 1.5 Payment of Outstanding Fees. Permittee shall submit a fee to CDFW for each individual maintenance project. The fee shall be based on CDFW's Agreement for Routine Maintenance fees as described in the California Code of Regulations, Title 14, section 699.5. CDFW acknowledges receipt of the base fee for a long- term routine maintenance project as well as an additional $560.25 to be applied toward fees for individual maintenance projects. 2. Avoidance and Minimization Measures To avoid or minimize adverse impacts to fish and wildlife resources identified above, Permittee shall implement each measure listed below. Notification #1600-2013-0241-RS Streambed Alteration Agreement Page 4 of 17 Resource Protection 2.1 Biological Educatiort. Permittee shall conduct an education program for all persons employed or otherwise working on the project site prior to performing any work on-site. The program shall consist of a presentation from a qualified biologist that includes a discussion of the biology of the habitats and species identified in this Agreement and present at the site. The qualified biologist shall also include as IPart of the education program information about the distribution and habitat needs of any special status species that may be present, legal protections for those species, penalties for violations and project-specific protective measures included in this Agreement. Interpretation shall be provided for non-English speaking workers, and the same instruction shall be provided for any new workers prior to their performing work on-site. 2.2 Work Area Demarcation. Prior to construction, the authorized work limits shall be marked in coordination with a qualified biologist. No vegetation shall be removed outside of this marked area and no construction debris, equipment, or soils shall be placed outside of the marked area. 2.3 Biological Monitor during Vegetation Removal. Due to the presence of native riparian vegetation, the initial vegetation clearing shall be conducted under the direct on-site supervision of a qualified biologist. 2.4 Qualified BioloqJ.§1. For the purposes of this Agreement, a qualified biologist is one who has met all of the following minimum qualifications: (a) bachelor's degree in biological sciences, zoology, botany, ecology, or a closely related field; (b) at least 3 years of experience in field biology or current certification of a nationally recogniz,ed biological society; and (c) at least 1 year of field experience with biological resources found in or near the project area. In lieu of the following qualifications, a resume shall demonstrate to the satisfaction of CDFW that the proposed biologist(s) has the appropriate training and background to effectively implement the measures of this Agreement. 2.5 No Grubbing of Root Zone. No vegetation shall be removed by excavation, grubbing or cutting below the ground level. 2.6 Prohibited Plant Species. Permittee shall not plant, seed or otherwise introduce invasive exotic plant species within or near the project area. Invasive exotic vegetation shall be removed from the project area during routine maintenance. Prohibited exotic plant species include those identified in the California Invasive Pest Plant Council database, which is accessible at: http://www.cal-ipc.org/paf/. 2.7 Removal and Disposal of Vegetation. Cut vegetation shall be removed from the project area and disposed of in a manner that does not adversely affect adjacent native habitat. Each lawnmower or similar equipment shall be equipped with a Notification #1600-2013-0241-R5 Streambed Alteration Agreement Page 5 of 17 catchment device if feasible. Trimmed vegetation shall be raked or otherwise collected and removed from the project area. 2.8 Herbicide Use Only For Non-Native Vegetation. Herbicides shall be used only for selective treatment of non-native vegetation. Herbicide use to kill native vegetation is prohibited. 2.9 Herbicide Use -General. Any herbicide used where the herbicide could come into direct contact with water shall be approved for use in an aquatic environment. Great care shall be taken to avoid contact with native vegetation, and herbicide shall only be applied on calm days to prevent airborne transfer. 2.10 Herbicide Mixing. Herbicide mixing sites shall only be located in areas devoid of vegetation, and where there is no potential of a spill reaching a vegetated area or a stream, for example avoid mixing at a storm drain. Wildlife and Habitat Protection 2.11 Protected Species. This Agreement does not authorize take, incidental or otherwise, of any protected species. For the purpose of this Agreement, "protected species" means the following: a species fully protected under state law; a candidate species or species listed as threatened or endangered under the California Endangered Species Act (CESA; Fish & G. Code§ 2050 et seq.) and/or Endangered Species Act (ESA; 16 U.S.C. § 1531 et seq.); a species identified by CDFW as a species of special concern; or any other species for which take is prohibited under state or federal law. No direct or indirect impacts shall occur to any protected species, except as may be authorized by a Natural Community Conservation Plan or one or more individual permits that authorize such impacts. 2.12 Seasonal Restrictions -General. To minimize impacts to nesting birds, initial vegetation removal and maintenance activities shall not take place within the project area from February 15 through August 31. This Agreement does not authorize Permittee to take birds or other animals or to destroy the nest or eggs of any bird. 2.13 Passive Habitat Restoration Activities. The following habitat restoration activities may occur without the time restrictions described in Measure 2.12 (Seasonal Restrictions -General) given that the activity does not disrupt nesting birds: hand application of native seed mix; trash and debris removal by hand; non-native vegetation removal using non-motorized hand tools; and, herbicide application using non-motorized backpack or hand-carried sprayers. Appropriate precautions to not disrupt nesting birds include, but are not limited to: pre-activity nesting surveys; adequate buffer areas around nest sites (e.g., as determined by a qualified biologist and based on the species and tolerance level of the animal, the nature of the activity, and the ambient conditions at the site); and, on-site Notification #1600-2013-0241-R5 Streambed Alteration Agreement Page 6 of 17 biological monitor(s) to observe whether nesting behavior is altered by project activities and stop work as necessary. 2.14 Leave Wildlife Unharmed. If any life stage of any wildlife (invertebrate, amphibian, reptiile, mammal, or bird) is encountered during the course of construction, said wildlife shall be allowed to leave the work area unharmed. A qualified biologist may also relocate non-protected species out of harm's way to appropriate avoided habitat immediately adjacent to the work site. Exclusionary devices shall be erected to prevent the migration into or the return of species into the work site. If any protected wildlife (see Measure 2.11) is encountered, Permittee shall immediately inform CDFW of the observation and additional measures taken to ensure the safety of the wildlife. Equipment and Access 2.15 Hand Tools for Vegetation Removal. Initial vegetation clearing and maintenance activities shall be conducted with hand tools only, except for vegetation removal from along the upstl'eam face of the dam through the use of equipment stationed on paved areas at Uie top of the dam. For the purposes of this Agreement, hand tools are defined as: walk behind lawnmowers, chainsaws, trimmers, and other tools carried into the work area by hand. Wheeled or tracked heavy equipment not stationed on paved areas at the top of the dam shall not be used during activities subject to this Agreement. 2.16 Clean All Equipment Before Entering Stream. Permittee shall clean all equipment of soil containing seed and/or plant material prior to entry into the work area as well as prior to the removal of equipment form the work area to prevent the spread of invasive exotic plant and animal species. 2.17 Access Impacts. Disturbance, removal or trimming of vegetation for work crews or equipment access shall not exceed the impact limits reviewed by CDFW. 2.18 No Equipment Driven in Wetted Portion of the Stream. Wheeled or tracked equipment shall not be operated in wetted areas (including but not limited to ponded, flowing, or wetland areas). Structures 2.19 No New Structures. This Agreement does not authorize the construction of any temporary or permanent dam, structure, flow restriction, or fill. Erosion, Turbidity, and Siltation 2.20 Disturbed Slopes. Areas of disturbed soils with slopes toward a stream or lake shall be stabilized to reduce erosion potential. Planting and seeding with native vegetation is acceptable. Where suitable vegetation cannot reasonably be Notification #1600-2013-0241-R5 Streambed Alteration Agreement Page 7 of 17 expected to become established, non-erodible materials such as coconut fiber matting or straw wattles shall be used for such stabilization until native planted/seeded vegetation can become established. Any installation of non- erodible materials not described in the original project description shall be authorized in writing by CDFW. Authorization may include the negotiation of additional Agreement provisions for this activity. 2.21 Erosion Control Measures. Permittee shall utilize erosion control measures throughout all phases of operation where sediment runoff from exposed slopes threatens to enter the stream. 2.22 Erosion Control Monitoring. Permittee shall monitor erosion control measures before, during, and after each storm event and repair and/or replace ineffective measures immediately. Pollution. Litter. and Clean-Up 2.23 Litter and Pollution. Permittee shall comply with all litter and pollution laws. All contractors, subcontractors and employees shall also obey these laws and it shall be the responsibility of the Permittee to ensure compliance. 2.24 Secure Trash Receptacles. Permittee shall use fully covered trash receptacles with secure lids (wildlife-proof) to contain all food, food scraps, food wrappers, beverage and other miscellaneous trash. 2.25 Stationary Equipment. Stationary equipment such as motors, pumps, generators, and welders located within or near the stream shall be positioned over drip pans. Stationary heavy equipment shall have suitable containment to handle a catastrophic spill/leak. 2.26 Equipment Maintenance and Fueling. No equipment maintenance or fueling shall be done within or near any stream channel where petroleum products or other pollutants from the equipment may enter these areas. 2.27 Equipment and Vehicle Spills and Contaminants. Any equipment or vehicles driven or operated within or near the stream shall be checked daily to prevent leaks of materials that if introduced to water could be deleterious to aquatic life. Permittee shall maintain all vehicles and equipment in proper working condition to minimize fugitive emissions and accidental spills from motor oil, antifreeze, hydraulic fluid, grease, and other fluids or hazardous materials. All fuel or hazardous waste leaks, spills, or releases shall be stopped or repaired immediately and cleaned up at the time of occurrence. Permittee shall be responsible for spill material removal and disposal to an approved offsite landfill and spill reporting to the permitting agencies. Service construction equipment shall be stored at designated areas only. Maintenance vehicles shall carry Notification #1600-2013-0241-RS Streambed Alteration Agreement Page 8 of 17 appropriate equipment and materials to isolate and remediate leaks or spills. A spill containment kit shall be available on site for all maintenance activities. 2.28 Site Cleanup. When operations are completed, any excess materials or debris shall be removed from the work area. 3. Compensatory Measures To compensate for adverse impacts to fish and wildlife resources identified above that cannot be avoided or minimized, Permittee shall implement each measure listed below. 3.1 Mitigation for Authorized Permanent Impacts. Mitigation for authorized impacts shall be accomplish1ed within the City's Lake Calavera Preserve according to the Conceptual Mitigation Plan -Ca/avera Dam Routine Maintenance Project, dated October 2015 (Mitigation Plan), unless otherwise noted in this Agreement. Permittee shall create a minimum 0.015 acre of stream habitat. Permittee shall also restore or enhance a minimum 0.773 acre of freshwater marsh and southern willow scrub habitat Permittee shall preserve a minimum of 3.63 acres as identified in the IVlitifJation Plan. Permittee shall notify CDFW of any modifications made to the project plans submitted to CDFW. At the discretion of CDFW, minor plan modifications may require an amendment to this Agreement. At the discretion of CDFW, if substantial changes are made to the original plans this Agreement becomes void and Permittee must submit a new Notification. 3.2 Restoration Maintenance and Monitoring. The restoration of habitat shall be maintained and monitored for a minimum of 5 years after installation. Maintenance, monitoring, and reporting shall be conducted following a prescribed schedule to assess progress and identify potential problems with the restoration. Remedial action (e.g., additional planting, weeding, erosion control, use of container stock, supplemental watering, etc.) shall be taken by an experienced, licensed habitat restoration contractor during the maintenance and monitoring period if necessary to ensure the success of the restoration. If the restoration fails to meet the established success criteria after the maintenance and monitoring period, maintenance and monitoring will extend beyond the 5-year period until the criteria are met or unless otherwise approved in writing by CDFW. 3.3 Restoration Success Criteria. All restoration planting shall have a minimum of 80% survival the first year, 95% the second year, and 100% survival thereafter, unless replaced by natural recruitment. Restoration areas shall attain 75% cover of native woody perennials after 3 years and 90% cover of native woody perennials after 5 years. At the completion of the monitoring period, the restoration sites shall have received no supplemental watering for a period of 2 consecutive years; the site shall have a species richness of at least 15 native species, divided between annuals and perennials; nonnative plants shall not make up more than 5% of the entire cover of the site; no more than 5% of the site shall consist of bare ground; the site shall be free of invasive exotic plant Notification #1600-2013-0241-RS Streambed Alteration Agreement Page 9 of 17 species; and there shall be no trash or human generated debris. The mitigation areas shall meet identified non-native vegetation success criteria in perpetuity. 3.4 Mitigation Implementation Timing. Implementation of compensatory mitigation (initial non-native vegetation biomass removal) shall commence after August 31, 2016 and no later than September 15, 2016. Delay in the initiation of compensatory mitigation will require an amendment to this Agreement and may require additional mitigation to mitigate the added temporal loss of stream habitat function. 3.5 Release of Monitoring and Reporting Obligations. Permittee shall not be released from monitoring and reporting obligations identified in Measure 3.2 until such time as Permittee has requested and received written concurrence from CDFW that the success criteria have been met. The mitigation areas shall meet identified non-native vegetation success criteria in perpetuity. 3.6 Long-Term Management of Mitigation Areas. Permittee shall permanently assign the mitigation areas identified in this Agreement to the Calavera Dam Routine Maintenance Project, SAA 1600-2013-0241-R5. The mitigation areas shall not be available for future compensatory mitigation obligations. 3. 7 Protection of Mitigation Areas. All habitat mitigation areas shall be placed within a Conservation Easement or other type of formal Deed Restriction approved by CDFW, and managed in perpetuity. Permittee shall submit the final easement or deed restriction and evidence of its recordation to CDFW. The document shall adequately demonstrate that the mitigation site will be maintained for biological value conservation without future development or encroachment on the site that could otherwise reduce the functions and values for wildlife resources. The easement or deed restriction shall prohibit all residential, commercial, industrial, institutional, and transportation development. The easement or deed restriction shall clearly state that no new rights or easements shall be granted within the compensatory mitigation area, except as approved by CDFW. New infrastructure development to be prohibited includes, but is not limited to, additional utility lines, maintenance roads, trails, and areas of maintained landscaping for recreation, excepting any prior rights under previously recorded easements. 3.8 Mitigation for Unauthorized Impacts. Permittee shall mitigate at a minimum 5:1 ratio for impacts beyond those authorized in this Agreement. In the event that additional mitigation is required, the type of mitigation shall be determined in cooperation with CDFW, and may include creation, restoration, enhancement and/or preservation. 4. Reporting Measures Permittee shall meet each reporting requirement described below. Permittee shall submit reporting measures to CDFW's South Coast Office at the address on page 1, Notification #1600-2013-0241-RS Streambed Alteration Agreement Page 10 of 17 ATTN: Stream bed Alteration Program -SAA# 1600-2013-0241-RS or alternatively by electronic mail to R5LSACompliance@wildlife.ca.gov. 4.1 Notification Prior to Work. Permittee shall notify CDFW, in writing, at least 5 days prior to the initial vegetation removal activities subject to this Agreement. 4.2 Annual Post-activity Report. Permittee shall provide an annual written report of the maintenance~ work conducted during the preceding work program year to CDFW by January 31st of each year. The report shall include a minimum of a description of the activities conducted, photographs of the project area, and figures describing the extent of maintenance area from an aerial perspective. The report shall also include a list of non-native species (aquatic, terrestrial, and herbaceous plants and/or animals) observed and their relative abundance in the project area. Pmmittee shall include the associated fee total for each maintenance activity completed (See Measure 1.5). 4.3 Sensitive Species Observations. Permittee shall report all observations of threatened/endangered species or species of special concern to CDFW's Natural Diversity Data Base (CNDDB) within 60 days of each sighting. Instructions for submitting the information are available at http://www.dfg.ca.gov/biogeodata /cnddb/submitting_data_to_cnddb.asp. In addition to sending the information to CNDDB a copy of the data provided should be sent to CDFW's South Coast Office, ATTN: Sf:reambed Alteration Program -SAA #1600-2013-0241-R5. 4.4 Mitigation Installation Report. Permittee shall submit a report to CDFW within 45 days after finalizing the replanting effort, acknowledging the completion of the replanting site and documenting the as-built status of the mitigation area. The report shall be submitted with electronic geographic information system (GIS) shapefiles (along with the appropriate metadata) of the mitigation area. 4.5 Restoration Maintenance and Monitoring Reports. Restoration maintenance and monitoring reports shall be submitted annually to CDFW during the maintenance and monitoring period identified in Measure 3.2. Annual reports shall include at a minimum: (a) maps identifying monitoring areas, transect locations, and planting zones; (b) transect data (c) a list of names and companies of all persons who prepared content of the annual report or participated in monitoring activities; (d) photographs taken from established photopoints; (e) survival, percent cover, and height of planted/seeded species; (f) percent cover of non-native and invasive vegetation; (g) the number, by species, of plants replaced or re-seeded areas; and (g) recommended remedial or adaptive maintenance. 4.6 Long-Term Reporting of Mitigation Areas. Permittee shall submit an annual report to CDFW in perpetuity which identifies the specific mitigation areas described in this Agreement and verification that the mitigation sites are meeting identified non-native vegetation success criteria. This reporting may be met Notification #1600-2013-0241-RS Streambed Alteration Agreement Page 11 of 17 through reporting to CDFW along with other long-term restoration/preserve management activities conducted within the City's Lake Calavera Preserve. 4.7 Required Reporting. Permittee shall provide a status report to CDFW every 4 years in accordance with FGC section 1605(g), with the first 4-year period beginning on the effective date of this Agreement. The status report shall be delivered to CDFW no later than 90 days prior to the end of each 4-year period, and shall include all of the following: a. A copy of the original Agreement; b. The status of the projects covered by the Agreement; c. An evaluation of the success or failure of the avoidance measures in this Agreement designed to protect the fish and wildlife resources that the projects this Agreement covers may substantially adversely affect; and, d. A discussion of any factors that could increase the predicted adverse impacts on fish and wildlife resources, and a description of the resources that may be adversely affected. 4.8 Department Mandated Response to Status Report. Upon receipt of the status report, CDFW shall comply with the provisions of FGC section 1605(g). 4.9 Failure to Provide Status Reports. If Permittee fails to provide timely status reports as required by this Agreement and FGC section 1605(g), CDFW may suspend or revoke this Agreement. CONTACT INFORMATION Any communication that Permittee or CDFW submits to the other shall be in writing and any communication or documentation shall be delivered to the address below by U.S. mail, email, or to such other address as Permittee or CDFW specifies by written notice to the other. To Permittee: City of Carlsbad Sherri Howard 1635 Faraday Avenue Carlsbad, California 92008 (760) 602-2756 sherri.howard@carlsbadca.gov To CDFW: California Department of Fish and Wildlife South Coast Region Notification #1600-2013-0241-RS Streambed Alteration Agreement Page 12 of 17 3883 Ruffin Road San Diego, California 92123 Attn: Lake and Strearnbed Alteration Program Notification #1600-2013-0241-RS LIABILITY Permittee shall be solely liable for any violations of the Agreement, whether committed by Permittee or any person acting on behalf of Permittee, including its officers, employees, representatives, agents or contractors and subcontractors, to complete the project or any activity relat1~d to it that the Agreement authorizes. This Agreement does not constitute CDFW's endorsement of, or require Permittee to proceed with the project. The decision to proceed with the project is Permittee's alone. SUSPENSION AND REVOCATION CDFW may suspend or revoke in its entirety the Agreement if it determines that Permittee or any person acting on behalf of Permittee, including its officers, employees, representatives, agents, or contractors and subcontractors, is not in compliance with the .Agreement. Before CDFW suspends or revokes the Agreement, it shall provide Permittee written notice by certified or registered mail that it intends to suspend or revoke. The notice shall state the reason(s) for the proposed suspension or revocation, provide Permittee an opportunity to correct any deficiency before CDFW suspends or revokes the Agreement, and includ(~ instructions to Permittee, if necessary, including but not limited to a directive to immediately cease the specific activity or activities that caused CDFW to issue the notice. ENFORCEMENT Nothing in the AgreemErnt precludes CDFW from pursuing an enforcement action against Permittee instead of, or in addition to, suspending or revoking the Agreement. Nothing in the Agreement limits or otherwise affects CDFW's enforcement authority or that of its enforcement personnel. OTHER LEGAL OBLIGATIONS This Agreement does not relieve Permittee or any person acting on behalf of Permittee, including its officers, employees, representatives, agents, or contractors and subcontractors, from obtaining any other permits or authorizations that might be required under other federal, state, or local laws or regulations before beginning the project or an activity related to it. Notification #1600-2013-0241-RS Streambed Alteration Agreement Page 13 of 17 This Agreement does not relieve Permittee or any person acting on behalf of Permittee, including its officers, employees, representatives, agents, or contractors and subcontractors, from complying with other applicable statutes in the FGC including, but not limited to, FGC sections 2050 et seq. (threatened and endangered species), 3503 (bird nests and eggs), 3503.5 (birds of prey), 5650 (water pollution), 5652 (refuse disposal into water), 5901 (fish passage), 5937 (sufficient water for fish), and 5948 (obstruction of stream). Nothing in the Agreement authorizes Permittee or any person acting on behalf of Permittee, including its officers, employees, representatives, agents, or contractors and subcontractors, to trespass. AMENDMENT CDFW may amend the Agreement at any time during its term if CDFW determines the amendment is necessary to protect an existing fish or wildlife resource. Permittee may amend the Agreement at any time during its term, provided the amendment is mutually agreed to in writing by CDFW and Permittee. To request an amendment, Permittee shall submit to CDFW a completed CDFW "Request to Amend Lake or Streambed Alteration Agreement" form and include with the completed form payment of the corresponding amendment fee identified in CDFW's current fee schedule (see Cal. Code Regs., tit. 14, § 699.5). TRANSFER AND ASSIGNMENT This Agreement may not be transferred or assigned to another entity, and any purported transfer or assignment of the Agreement to another entity shall not be valid or effective, unless the transfer or assignment is requested by Permittee in writing, as specified below, and thereafter CDFW approves the transfer or assignment in writing. The transfer or assignment of the Agreement to another entity shall constitute a minor amendment, and therefore to request a transfer or assignment, Permittee shall submit to CDFW a completed CDFW "Request to Amend Lake or Streambed Alteration" form and include with the completed form payment of the minor amendment fee identified in CDfW's current fee schedule (see Cal. Code Regs., tit. 14, § 699.5). EXTENSIONS In accordance with FGC section 1605(b), Permittee may request one extension of the Agreement, provided the request is made prior to the expiration of the Agreement's term. To request an extension, Permittee shall submit to CDFW a completed CDFW "Request to Extend Lake or Streambed Alteration" form and include with the completed form payment of the extension fee identified in CDFW's current fee schedule (see Cal. Notification #1600-2013-0241-RS Streambed Alteration Agreement Page 14 of 17 Code Regs., tit. 14, § Ei99.5). CDFW shall process the extension request in accordance with FGC 1605(b) through (e). If Permittee fails to submit a request to extend the Agreement prior to its expiration, Permittee must submit a new notification and notification fee before beginning or continuing the project the Agreement covers (FGC section 1605(f)). EFFECTIVE DATE The Agreement becomes effective on the date of CDFW's signature, which shall be: 1) after Permittee's signature; 2) after CDFW complies with all applicable requirements under the California Environmental Quality Act (CEQA); and 3) after payment of the applicable FGC section 711.4 filing fee listed at http://www.wildlife.ca.gov/habcon/ceqa/ ceqa_changes.html. TERM This Agreement shall expire on January 15, 2026, unless it is terminated or extended before then. All provisiions in the Agreement shall remain in force throughout its term. Permittee shall remain res[Ponsible for implementing any provisions specified herein to protect fish and wildlife resources after the Agreement expires or is terminated, as FGC section 1605(a)(2) requires. EXHIBITS The documents listed below are included as exhibits to the Agreement and incorporated herein by reference. Exhibit A. Calavera Dam Routine Maintenance Project; CDFW Jurisdiction Impacts Exhibit B. Calavera Dam Routine Maintenance Project; Proposed Mitigation Areas AUTHORITY If the person signing the Agreement (signatory) is doing so as a representative of Permittee, the signato~v hereby acknowledges that he or she is doing so on Permittee's behalf and represents and warrants that he or she has the authority to legally bind Permittee to the provisions herein. AUTHORIZATION This Agreement authorizes only the project described herein. If Permittee begins or completes a project different from the project the Agreement authorizes, Permittee may be subject to civil or criminal prosecution for failing to notify CDFW in accordance with FGC section 1602. Notification #1600-2013-0241-R5 Streambed Alteration Agreement Page 15 of 17 CONCURRENCE The undersigned accepts and agrees to comply with all provisions contained herein. FOR CITY OF CARLSBAD Sherri Howard Associate Engineer FOR DEPA,RTME TQF FISH AND WILDLIFE (-, .. ~" Gail K. Sevrens Environmental Program Manager Prepared January 2016 by Kevin Hupf, Environmental Scientist Date Dale f 0 n.arr Notification #1600-2013-0241-RS Streambed Alteration Agreement Page 16 of 17 (""01'1.\' Juri,.:b .. --ti,piuJ :\n::i lmp3Ct.< i0..l94 2c) l'=,.·>ausly ~litig:,tcd An::i 40.052 :i.:'1 sc<..""11.CT.: ACl'Uil -t.-r,.•ufC.-L.&-StJslWJ C.:ula,v:ru I>um Ruwir:e ,\la ,,r-,,w.r.r.<! P ,YJje,:;I CDF\\: Jurisih.:111011 lmp..:icts Notification #1600-2013-0241-RS Streambed Alteration Agreement Page 17 of 17 D :-, (,tale ot' California-The Resources Agency ~i>EPARTMENT OF FISH AND GAME 2012 ENVIRONMENTAL FILING FEE CASH RECEIPT SEE INSTRUCTIONS ON REVERSE. TYPE OR PRINT CLEAR\:'. LEAD AGENCY CITY OF CARLSBAD PLANNING DIVISION COUNTY/STATEAGENCY OF FILING SAN DIEGO PROJECT TITLE RECEIPT# SD2012 1030 STATE CLEARING HOUSE#(lfapplicable/ 2012081058 DATE · · 12/18/2012 DOCUMENT NUMBER *20120248* / CALAVERA DAM ROUTINE MAINTENANCE PROJECT-MITIGATED NEGATIVE DECLARATION I PROJECT APPLICANT NAME CITY OF CARLSBAD PROJECT APPLICANT ADDRESS 1635 FARADAY AVENUE PROJECT APPLICANT (Check appropriate box): IZ} Local Public Agency D School District CHECK APPLICABLE FEES: 0 Environmental Impact Report IZ) Negative Declaration CITY CARLSBAD 0 Other Special District O Application Fee Water Diversion (State Water Resources Control Board Only) 0 Projects Subject to Certified Regulatory Programs IZ) County Administrative Fee 0 Project that is exempt from fees 0 Notice of Exemption ['! 2 0 2 4 8 D DF:G No Effect Determination (Form Attached) 0 Other __________________ _ PAYMENT METHOD: D STATE CA State Agency $2,919.00 $2,101.50 $850.00 $992.50 $50.00 $ $ $ $ $ PHONE NUMBER 760/602-2756 ZIPCODE 92008 0 Private Entity $2,101.50 $50.00 $ ______ _ D Cash 0 Credit IZl Check O Other_2_3_84_5_3 __ _ TOTALRECEIVED $ ____ $_2,_15_1_.5_0_ X V .. Orendain I TITLE Deputy SIGNATURE CITY OF CARLSBAD JA-N-2~b PLANNING DEPARTMENT l llllll lllll lllll lllll lllll lllll lllll lllll llll llll ORIGINAL-PROJECT APPLICANT COPY -DFGIASB COPY -LEAD AGENCY COPY -COUNTY CLERK FG 753.Sa (Rev. 7/08) Notice of Determination "i 2024-8 To: Office of Planning and Research P.O. Box 3044 From: CITY OF CARLSBAD Sacramento, CA 95812-3044 Planning Division . 1635 Faraday Avenue IF tl l E [DJ Carlsbad, CA 92008 SD County Clerk Attn: Jennifer Samuela Mail Stop A-33 · · (760) 602-4600 !:mest J Oronenburg, Jr. RQCOrd&r Col/nly Clet!c' 1600 Pacific Highway San Diego, CA 92101 DEC 1 8_2012 V. Orendain BY.----c--......--._ DEPUTY Project No: EIA 11-03 Filing of Notice of Determination in compliance with Section 21108 or 21152 of the Public Resources Code. Calavera Dam Routine Maintenance Project -Mitigated Negative Declaration Project Title 2012081058 State Clearinghouse No. City of Carlsbad, Barbara Kennedy Lead Agency, Contact Person (760) 602-4626 Telephone Number East of Tamarack Avenue, south of Sky Haven Lane, City of Carlsbad, San Diego County Project Locations (include County) Name of Applicant: Sherri Howard, Associate Engineering, City of Carlsbad Applicant's Address: 1635 Faraday Avenue, Carlsbad, CA 92008 Applicant's Telephone Number: 760-602-2756 Project Description: The project entails removal of vegetative material from the north (lakeside or upstream side) and south (downstream side) faces of the dam, spillway, inlet and outlet structure in response to an order from the State of California Division of Safety of Dams (DSOD). The project includes initial vegetation removal (to be conducted in 2012) and ongoing, periodic vegetation removal in perpetuity. This ongoing vegetation removal is required in order to comply with the DSOD permits for the dam. This is to advise that the City of Carlsbad City Planner has approved the above described project on December 13, 2012, and has made the following detennination regarding the above described project. 1. The project will not have a significant effect on the environment. . 2. D An Environmental Impact Report was prepared for this project pursuant to the provisions ofCEQA. ~ A Mitigated Negative Declaration was prepared for this project pursuant to the provisions ofCEQA. . D This project was reviewed previously and a Negative Declaration was prepared pursuant to the provisions of CEQA. 3. Mitigation measures were made a condition of the approval of the project. 4. A mitigation reporting or monitoring plan was adopted for this project. 5. A statement of Overriding Considerations was not adopted for this project. 6. )tPJ~-n,dJ~g~-~~r~p-iade_ pursuant to the provisions of CEQ~. T 1 is to certify that' the final Mitigated Negative·Declaration with comments and responses and record o pr 1ec rov. i is-available to,the General Public at THE CITY OF CARLSBAD. /2-/3-!t Date ~-... , ....... -...... ~· .... -./f"•·'t.'•'-·-·~··- Date received for filing at OPR: Revised 04/12 4'~~ CITY O; VcARLSBAD. Community & Economk Development www.carlsbadca.gov CASE NAME: .CASE NO: MITIGATED NEGATIVE DECLARATION Calavera Dam Routine Maintenance Proiect EIA 11--03 PROJECT LOCATION: Southwestern end of the Lake Calavera Reservoir generally located east of Tamarack Avenue. border with Oceanside on the north, open space preserve land on the east and south of the dam. PROJECT DESCRIPTION: The pnoject entails removal of vegetative material from the north {lakeside or upstream side) and so·uth (downstream side) faces of the dam, spillway, inlet and outlet structure in response to an order from the State of California Division of Safety of Dams (DSOD}. The project includes initial vegetation removal (to be conducted in 2012) and ongoing, periodic vegetation removal in perpetuity. This ongoing vegetation removal is required in order to comply with DSOD permits for the dam. DETERMINATION: The City of Carlsbad has conducted an environmental review of the above described project pursuant to the Guidelines for lf:1plementation of the California Environmental Quality Act and the Environmental Protection Ordinance of the City of Carlsbad. As a result of said review, the initial study (EIA Part 2) identified potentially significant effects on the environment, and the City of Carlsbad finds as follows: · 18! Although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because the mitigation measures described on the attached Initial Study have been added to the project. D The proposed project MAY have "potentially significant impact(s}" on the environment, but at least one potentially significant impact 1) has been adequately analyzed in an earlier document pursuant to applicable legal standards, and 2) has been addressed by mitigation measures based on the earlier analysis as described on attached sheets. (Mitigated Negative Declaration applies only to the effects that remained to be addressed). D Although the proposed project could have a significant effect on the environment, there WILL NOT be a significant effect in this case because all potentially significant effects (a) have been analyzed adequately in an earlier ENVIRONMENTAL IMPACT REPORT or NEGATIVE DECLARATION pursuant to applicable standards and (b) have been avoided or mitigated pursuant to that earlier ENVIRONMENTAL IMPACT REPORT or NEGATIVE. DECLARATION, including revisions or mitigation measures that. are imposed upon the proposed project. Therefore, nothing further is required. A copy of the initial study (EIA Part 2) documenting reasons to support the Negative Declaration is on file in the Planning Division, 1635 Faraday Avenue, Carlsbad, California 92008. ADOPTED: December 13,, 2012, pursuant to Administrative Approval DON NEU City Planner Planning Division 1635 Faraday Avenue, Carlsbad, CA 92008-7314 T 760-602-4600 F 760-602-8559 ® 1'Hate of California-The Resources Agency ~i>EPARTMENT OF FISH AND GAME 2012 ENVIRONMENTAL FILING FEE CASH RECEIPT SEE INSTRUCTIONS ON REVERSE. TYPE OR PRINT CLEAR\:'. LEAD AGENCY CITY OF CARLSBAD PLANNING DIVISION COUNTY/STATEAGENCY OF FILING SAN DIEGO PROJECTTl11E RECEIPT# SD2012 1030 STATE CLEARING HOUSE#(!fappticableJ 2012081058 DATE , · 12/18/2012 DOCUMENT NUMBER *20120248* / CALAVERA DAM ROUTINE MAINTENANCE PROJECT-MITIGATED NEGATIVE DECLARATION I PROJECT APPLICANT NAME CITY OF CARLSBAD PROJECT APPLICANT ADDRESS 1635 FARADAY AVENUE PROJECT APPLICANT (Check appropriate box): IZ) Local Public Agency O School District CHECK APPLICABLE FEES: 0 Environmental Impact Report !Z) Negatfve Declaration CITY CARLSBAD 0 Other Special District O Application Fee Water Diversion (State Water Resources Control Board Only) O Projects Subject to Certified Regulatory Programs IZl County Administrative Fee 0 Project that is exempt from fees 0 STATE CA State Agency $2,919.00 $ $2,101.50 $ $850.00 $ $992.50 $ $50.00 $ PHONE NUMBER 760/602-2756 ZIPCODE 92008 0 Private Entity $2,101.50 $50.00 CJ Notice of Exemption t'l20248 CJ DF:G No Effect Determination {Form Attached) O Other _________________ _ $ ______ _ PAYMEN'fM5.THOD: CJ Cash 0 Credit ~ Check O Other 238453 TOTAL RECEIVED $ ___ __:$_2:..., 1_51_._50_ V. Orendain I TITLE Deputy SIGNATURE X CITY OF CARLSBAD J~-N~j PLANNING DEPARTMENT 1111 111 I llllll lllll lllll llll 11111111111111 11111111 ORIGINAL-PROJECT APPLICANT COPY -DFG/ASB COPY -LEAD AGENCY COPY, COUNTY CLERK FG 753.5a (Rev. 7/08} ' Notice of Determination ·12024.8 To: Office of Planning and Research P.O. Box 3044 From: CITY OF CARLSBAD Sacramento, CA 95812-3044 Planning Division _ 1635 Faraday Avenue fE." n l [E [D) Carlsbad, CA 92008 SD County Clerk Attn: Jennifer Samuela Mail Stop A-33 u ~ --(760) 602-4600 !:mest J OfOnenburg, Jr. RQC()l'dar Ca\Jnty Cleric' DEC 1 ft2012 V. Orendain 1600 Pacific Highway San Diego, CA 92101 BY.---~=~ DEPUTY Project No: EIA 11-03 Filing of Notice of Determination in compliance with Section 21108 or 21152 of the Public Resources Code. Calavera Dam Routine Maintenance Project -Mitigated Negative Declaration Project Title 2012081058 State Clearinghouse No. City of Carlsbad, Barbara Kennedy Lead Agency, Contact Person (760) 602-4626 Telephone Number East of Tamarack Avenue, south of Sky Haven Lane, City of Carlsbad, San Diego County Project Locations (include Counity) Name of Applicant: Sherri Howard, Associate Engineering, City of Carlsbad Applicant's Address: 1635 Faraday Avenue, Carlsbad, CA 92008 Applicant's Telephone Number: 760-602-2756 Project Description: The proje,ct entails removal of vegetative material from the north (lakeside or upstream side) and south (downstream side) faces of the dam, spillway, inlet and outlet structure in response to an order from the State of California Division of Safety of Dams (DSOD). The project includes initial vegetation removal (to be conducted in 2012) and ongoing, periodic vegetation removal in perpetuity. This ongoing vegetation removal is required in order to comply with the DSOD permits for the dam. This is to advise that the City of Carlsbad City Planner has approved the above described project on December 13, 2012, and has made the following detennination regarding the above described project. I. The project wi!l not have a significant effect on the environment. 2. D An Environmental. Impact Report was prepared for this project pursuant to the provisions ofCEQA. 18] A Mitigated Negative Declaration was prepared for this project pursuant to the provisions ofCEQA. - D This project was reviewed previously and a Negative Declaration was prepared pursuant to the provisions of CEQA. 3. Mitigation measures were made a condition of the approval of the project. 4. A mitigation l'.eporting or monitoring plan was adopted for this project. 5. A statement of Overriding Considerations was not adopted for this project. 6. . _ Fi.ndii:igs ~er~,.r.nade pursuant to the provisions of CEQA. )!P. .. :-;~.~1:.:':_';c:..J..,, • ..,d ,·, • • T I is to certify that" the final Mitigated Negative·Declaration with comments and responses and record o pr ~ec ro I is-available t<Ythe General Public·at THE CITY OF CARLSBAD. DON-NEU;{:ity Plal}ner' --_-·-~·-· _- ..... .. . ~--~ ' ~. .. ....... ~~.. ... . ..... _:,,.~· ; · ........... ······-· . ' ---~-~'h.ll1) ............ _,.,.• . /2-/.3--/2 Date Date received for filing at QPR: Revised 04/12 ,4t_A CITY 0: VcARLSBAD. Community & Economic Development www.carlsbadca.gov CASE NAME: .CASE NO: MITIGATED NEGATIVE DECLARATION Calavera Dam Routine Maintenance Proiect EIA 11-03 PROJECT LOCATION: Southwestern end of the Lake Calavera Reservoir generally located east of Tamarack Avenue, border with Oceanside on the north, open space preserve land on the east and south of the dam. PROJECT DESCRIPTION: The project entails removal of vegetative material from the north (lakeside or upstream side) and so·uth (downstream side) faces of the dam, spillway, inlet and outlet structure in response to an order from the State of California Division of Safety of Dams (DSOD}. The project includes initial vegetation removal (to be conducted in 2012) and ongoing, periodic vegetation removal in perpetuity. This ongoing vegetation removal is required in order to comply with DSOD permits for the dam. DETERMINATION: The City of Carlsbad has conducted an environmental review of the above described project pursuant to the Guidelines for Implementation of the California Environmental Quality Act and the Environmental Protection Ordinance of the City of Carlsbad. As a result of said review, the initial study (EIA Part 2) identified potentially significant effects on the environment, and the City of Carlsbad finds as follows: · [81 Although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because the mitigation measures described on the attached Initial Study have been added to the project. D The proposed project MAY have "potentially significant impact(s}" on the environment, but at least one potentially significant impact 1) has been adequately analyzed in an earlier document pursuant to applicable legal standards, and 2) has been addressed by mitigation measures based on the earlier analysis as described on attached sheets. (Mitigated Negative Declaration applies only to the effects that remained to be addressed}. D Although the proposed project could have a significant effect on the environment, there WILL NOT be a significant effect in this case because all potentially significant effects (a) have been analyzed adequately in an earlier ENVIRONMENTAL IMPACT REPORT or NEGATIVE DECLARATION pursuant to applicable standards and (b) have been avoided or mitigated pursuant to that earlier ENVIRONMENTAL IMPACT REPORT or NEGATIVE. DECLARATION, including revisions or mitigation measures that. are imposed upon the proposed project. Therefore, nothing further is required. A copy of the initial study (EIA Part 2) documenting reasons to support the Negative Declaration is on file in the Planning Division, 1635 Faraday Avenue, Carlsbad, California 92008. ADOPTED: December 13, 2012, pursuant to Administrative Approval DON NEU City Planner Planning Division 1635 Faraday Avenue, Carlsbad, CA 92008-7314 T 760-602-4600 F 760-602-8559 ® STORM WATER POLLUTTON PREVENTION NOTES G[IICRALSIT[MANAG>MI~/Jlf1/.Ejj~ TH£ FOLLO~HNO GENERAL SJT[ MANAG[!IENT R£QUIREM£NTS SHALL 8£ ADHERED TO THROIJGHO/JT THE DURATION OF THE CONSTRUCTION WORK (YfAR ROUND). I. INCASE/J,IFRGENCYll'ORKISREQU/RED, CONTAGT ___ FROM __ AT(TEL.NO.) ____ _ 2 DE'I/CtS SI/OWN QI/ CITY ~PPROvfD PLANS Sl1ALL NOT 8[ \101;[0 OR MOD/RED WITHOUT Tl/£ APPROVAL OF T'I-!£ ENGINEERING INSPEC/0,~. 3. TH£ CONTRACTOR SHALL RESTORE AU EROSION CONTROL DEVICES TO WORKING O.'lDER 10 fl![ SATISFACTION OF /HE arr ENGINEER AF/ER £AU( RUN-OFF PRODUCING RAINFALL TIER 2 CITY STORM WATER POLLUTION PREVENTION PLAN (TIER 2 SWPPP) SW __ ~----------==========c-,-=~~---~~--------------BEST MANAGEMENT PRACTICES (BMP) SELECTION TABLE E CASQADas'gnallon~ Cooslmc:lionAolM!y Sm/Dislurbance Tmck/09 CanfrolfJMPs Non-Storm Water ManagemenlBMPs Was/eManagemenlandMatenals PollulmnConlro/BMPs SB i:: Fee,;, t Dir/ ----" --~ __ __i_t--+-+--+---+--+---+--+---+--,-+--,-t---+-t---+-t---+-+--,-+-+---+--1 ~s/ruclions. I 1 Check thebox/o the/di :,.:,::;,,::: :::· ,1'.",,/\' .1~:1·1,~','.! \I''.i;"::.•:1::':",:,:r.::·:1.:';;f.:~::1: [~~s9:J ir~g~~t°r:in number. Choose one J. Reier (o !1,e Ct\SQt\ conslruc!wn l,andbook for mforma!mn and de!ai/s of /he chosen BMPs and haw lo apply /hem lo !he projecl LEGEND (DELUE ITEMS NOT USED ON THE SITE MAP! EC-10, VELOCITY OISSIPAT/ON SE-I, SILT FENCE SE-5, FIBER ROLL SE-6. GRA\,E"L BAG m-1, STABILIZED CONSmUCTION ENmANCE ~ NS-8, VEHICLE ANO EQUIPMENT CLEANING NS-8 NS-9, VEHICLE AND EQUIPMENT FUEUNG NS-10, VEHIC!.E ANO EQUIPMENT MAINTENANCE t!S· /0 OYMER{S)/OWN[R'S AGD-ITNAM£(S1GNATUR£) VICINITY MAP SHEET INDEX: -----------------SHEET I: TITLE SHEEI SHEET 2. £ROS/ON CONTROL PLANS APN: _________ _ SITE ADDRESS: AREA OF DISTURBANCE CONSTRUCTION THREAT· CONSTRUCT/ON THREAT re STORM WATER QUALITY (CHECK BOX): OWNER/APPLICANT: EMERGENCY CONTACT: ADDRESS: TELEPHONE NO: WM-I, MATERIAL Dt:Ll'IERY AND STORAGE ~ CITY OF CARLSBAD .1s~ms1 ~------------------jl..l...J Et!GINEERING DEPARTMENT 2 WM-2, MATERIAL USE NAME OF PREPARER: _______ _ WM-5, SOLID WASTE MANAG[M[NT QUALIFICATIOHOFPREPARER _____ _ 11:\1-9. SANITARY/SEPTIC WASTE MANAGEMENr AODRESS· ________ _ IZZL ____ J <:;= <:;= <= PHDNENO. ________ _ CITYSTOl!MWATERPOLLUT!OIIPREVEIITIOIIPLAN(SWPPP) TIER2 PROJECTNA~[E· _______ _ TITLE SHEET I PROJECT ID I DRAWING NO. APN 156-351-04 AP~I 156-351-03 TIER 2 STORM WATER POLLUTION PREVENTION PLAN (SWPPP) APll 156-350-11 EXISTING HOUSE APN 156;-351-07 l I \ '", I /fl I ) I: i APN APN APN fsii!Pl CITY OF CARLSBAD I secm I u___J ENGINEERINGDEPIIRTMENT 2 STORM WATER POLl.UTJON PREVENTJON PLAN (SWPPP) TIER2 PROJECT NAME: _______ _ EROSION CONTROL PLAN I DRAWll1G NO. STORM WATER POLL UTT ON PREVENTION NOTES CLN!RAL SIT[MANAG[!JrNTR[OUIR[M[NTS THE FOUOWING GENERAL sm: MANACEIIENT REQUIREMENTS SHAU BE ADHERED TO THROUGHOUT THE DURM/ON OF THE CONSTRUCTION WORK (YEAR ROUND}. 1 IN CASE EMERGENCY lltJRK JS REQUIRED, CONTACT:~· ___ FROM· __ Ai(TELNO.) ____ _ 2 DEVICES SHOIIN ON CITY APPRO\UJ PLANS SI/ALL NOT BE MO'.rD OR MODIFIED !WTHOUT THE APPROVAL OF T!IEGIG/N[CRINGINSP[CTOR. 3. THE CONTRACTOR SHALl RESTORE All EROSION CON!ROL 0['.1/C[S TO WORKING ORDER TO THE SATISFACTION OF THE arY ENGINEER AFTER EACH RUN-OFF" PRODUCING RA/Nfi1LL TIER 2 CITY STORM WATER POLLUTION PREVENTION PLAN (TIER 2 SWPPP) 3 IRRIGATION SHALL MAINTAIN THE MOISITJ/1£ L[VEL OF THE SOIL AT THE OPTIMUM LHEL FOR THE GRADING or mE HWfWSffDED GROW!lf. J ([RT/LIZER CONSISTING OF AMMONIUM PHOSPHArE SULFAlc, 16-20-0 WITH 15%SULPHURAPPIJEDAT IHERAfEOf SO/Jibs PlRACRE SW __ BEST MANAGEMENT PRACTiCES (BMP) SELECTION TABLE ~Dir~t --+---+-+--+-f---+--,f--+--+-+---l-t-1--~r L_ --LJ_.[_____J_.[_____J_.[_____J_LJ_.[_____J__J___j__ ;'.' .. ,,-,, '·'-'"' ·"-'··'"'··" '""" .•• ,, ,co_,,,,.,,.,,"'"' '.,t"-'!".:f_ "t2'"~"cc.:::f:'ot .. ~f,'P-'!!!'.I~ ~7~s9tl iifl~~t~n.number. Choose one 3, Reier to the CASOA construction handbook for informalion and delar/s of lhe chooen BMPs and how to apply (hem 1o lhe prnJecl. LEGEND (DELETE ITEMS NOT USED ON THE SITE MAP) ff-/0, VELOCITY OISS/PATION SE-I, SILT FENCE SE-5. FIBER ROLi SE-6. GRAVEL BAG TR-I, STABILIZED CONSTRUCTION ENTRANCE ~ NS-8, VEHICLE JlND EQUIPMENT CLEANING NS-9, VEHICLE AND EQUIPMENT FUD.ING NS-10, VEHICLE AND EQUIPMENT MAINTENANCE NS-/0 O/!NrR(S)/OWNER'SAGENTNAME{SIGNATURC) VICINITY MAP SHEET INDEX: OF MARCOS APN: _______ _ SITE ADDRESS: AREA OF DISTURBANCE CONSTRUCTION THREAT: ~--------------CONSTRUCT/ON THREAT ro STORM WATER QUALITY (CHECK BOX). OWNER/APPLICANT: ADDRESS TELEPHONE NO.· EMERGENCY CONTACT: WM-1. MATERIAL DELIVERY AND STORAGE: ~ CITY OF CARLSBAD l"~""I ------------------------' L_l_j ENGINEERING DEPARTMENT 2 WM-2, MATERIAL US£ NAME Of PREPARER _______ _ WM-5, SOLID VIAS/I" MANAGEMENT QUALIFICAllONOFPREPARERt _____ _ 11:\.1-9, SANITARY/SEPrtC WAST£ MANAGEMENT ADDRESS ________ _ 8/0RET£NTION BASIN STAMP' -IF APPLICABLE'. CJTi' s·rorut WArnR POLLl.'1'JON PREVENTION PLAN (SWPPP) TIER2 PROJECT NAME: _______ _ TITLE SHEET APN 156-351-04 APN 156-351-03 TIER 2 STORM WATER POLLUTION PREVENTION PLAN (SWPPP) APN 156!-351-07 I APN 156-350-11 / I l APN APN /,PN ~ CITY OF CARLSBAD 1s~,m1 ~ ENGINEERING DEPARTMENT 2 STORM WATER POlLUT!ON PREVENTION PLAN (SWPPP) TIER2 PROJECT NAME: _______ _ EROSION CONTROL PLAN I DRAWIIIG NO. JOB ADDRESS: NEAREST CROSS STREET: BID OR AGREEMENT NO.: DRAWING NO. (if applicable): BRIEF DESCRIPTION OF WORK: RIGHT OF WAY PERMIT APPLICATION CITY/CMWD PROJECTS E-12 ASSESSOR PARCEL NO(S): Development Services Land Development Engineering 1635 Faraday Avenue 760-602-2750 www.carlsbadca.gov PROPOSED START DATE: ESTIMATED COMPLETION DATE: CONTRACTOR (Permittee) NAME (Print or Type): CONTACT PERSON: MAILING ADDRESS: CITY, STATE: EMAIL ADDRESS: PHONE NUMBER: 24 HOUR EMERGENCY TELEPHONE: STATE CONTRACTOR'S LICENSE NUMBER: STATE CONTRACTOR'S LICENSE TYPE: CITY OF CARLSBAD BUSINESS LICENSE NUMBER: By its signature below, permittee agrees to indemnify, hold harmless, and defend the City of Carlsbad or its officers or employees from all claims, damage or liability to persons or property arising from or caused by an activity or work done pursuant to this permit unless the damage or liability was caused by the sole active negligence of the city or its officers or employees. This agreement is a condition of the issuance of a right-of-way permit. SIGNATURE DATE The same name must appear on this application, the Cash Security Agreement and the request for refund as the permittee. CITY USE ONLY PERMIT NO.: ENTERED INTO COMPUTER BY: TCP APPROVED BY: INSURANCE CHECKED BY: E-11 DATE: EXP. DATE: Page 1 of 1 DATE STAMP APPLICATION RECEIVED REV 08/15 RIGHT OF WAY PERMIT SUBMITTAL CHECKLIST CITY/CMWD PROJECTS E-12A THIS SECTION TO BE COMPLETED BY CITY PERSONNEL Development Services Land Development Engineering 1635 Faraday Avenue 760-602-2750 www.carlsbadca.gov City Project No. Cit{~roj~bi Name-~---,,---,,--,.,.....,...----------- City F>roject Manager----'-------------,----,..,......,...,..,......,...-------"---------------'-' RIGHT OF WAY PERMIT APPLICATION To be completed and signed by contractor doing the work. The contractor is the Permittee and is ultimately responsible for all work done that affects the right-of-way. ___ 1. Completed application form ___ 2. Traffic Control Plan (per city specifications) COMMENTS: ______________________________ _ ,, ' < SUBMITTAL COMPLETE,/CHECKED BY:+---+--,------DATE: _____ .....,........ ___ _ E-11A Page 1 of 1 REV 08/15 EXHIBIT D CONTRACTOR 1 S PROJECT APPROACH Project Approach to the Scope of Services Project Approach HRS will work through all phases of the project in coordination with the City, biological monitor (LSA), and any other agencies/entities involved. The HRS project manager {PM) will serve as the single point of contact for the City and will provide regular updates to the City's representative for all aspects of work. The PM will also be responsible for all QA/QC throughout the project (both design and construction phases). Having a single point of contact for the City allows for more clear lines of communication within the project team as well as streamlined responses to the City for any questions that arise. The PM is available to coordinate with the biological monitors and regulatory agencies directly if preferred or all communication can go through the City. Initial work will include developing a baseline project schedule for construction which will continue to be updated as the plans become finalized and the scope of work is refined. Additionally, HRS will submit the guaranteed maximum price (GMP) proposal following the issuance of a contract. The schedule and cost proposal will be adjusted to meet the City's ultimate goals for the project. Prior to beginning plan preparation, HRS will need to be provided with electronic versions of the provided conceptual plan and 30% construction plans (including the AutoCAD, GIS, or shape files). Upon issuance of a contract and during pre-construction, a soil test will be performed using samples from 4 locations within area 1. The samples will be submitted to Wallace Laboratories for testing to receive recommendations for amendments needed to create the proper soil agronomy for the native species slated for installation. Additionally, HRS will drill and treat with herbicide all non-native trees slated for removal. This will allow the non-native plant material to begin dying which will make the removal and off-haul more efficient. HRS will also procure all plant and seed materials at this time to ensure availability for installation in the fall. The HRS project manager will be available for semi-monthly meetings for the duration of the pre-construction and construction period. Through all phases of plan preparation, HRS restoration specialists and landscape architects will consult with the construction managers to ensure all proposed means and methods are fully constructible and provide the most efficient and economical approach for completing the project. If necessary, site meetings will be performed with both the planning and construction team to review site conditions and determine exact locations for items such as: grade breaks, native tree species, coupling connection for the water truck hook- up, and BMP erosion control measures. HRS will prepare a 60% plan set which will include 4 sheets. A title sheet, an irrigation sheet, and 2 planting/seeding sheets. The proposed irrigation system will be a temporary on-grade system that is charged via a water truck as opposed to a permanent point of connection (POC). The system will utilize a combination of drip emitters and shrub sprayer heads. The planting and seeding palettes and layout will conform to those shown on the 30% plans; however, HRS anticipates increasing the quantities of cuttings to more quickly establish the understory of area 1. HRS will prepare a 90% plan set which will include the 4 sheets listed above as well as 2 additional detail sheets related to irrigation and planting procedures. The finalized 100% plan set will include 6 sheets which have addressed all comments/edits from the City and other entities. HRS has assumes all plan submittals will have a single round of comments/edits from the City and other entities involved. Additionally, the plan submittals would not include a separate specification booklet. HRS will utilize the finalized plans prepared by our restoration specialists and landscape architects to perform all construction and installation work. The initial work will involve delineation of construction limits as well as installation of temporary signage for trail closures associated with the work being performed. Our team has extensive experience working within public open space areas which involve substantial interaction with the public. Specifically at Lake Calavera, we have performed work and interacted with many of the entities involved with the preserve including: Center for Natural Lands Management {CNLM), Preserve Calavera, California Department of Fish and Wildlife, City of Oceanside, City of Carlsbad, as well as the general public. Additionally, we are familiar with the Carlsbad Habitat Management Plan (HMP) and will ensure all activities adhere to the guidelines within the document. We understand the importance of safety during all aspects of our work, in particular during the construction phases. HRS will coordinate with the City to implement a community outreach program that details the work being performed, who to contact with questions, as well as any scheduled trail closures or detours. During construction, HRS will have signage indicating which areas are closed for public safety reasons and will have a site supervisor on-site during all activities to monitor and mitigate for any safety hazards that may arise. The tree removal effort is anticipated to take 3 to 4 weeks and will be accomplished using hand crews, climbers, and low ground pressure equipment. All non-native tree species within area 1 including palms, myoporum, and peppers will be cut as close to grade as possible. The tree stumps will be treated with the appropriate herbicide to prevent regrowth but will be left in place to provide soil stability. As the stumps degrade over time, they provide nutrients to the native plants that are planned for installation and will aid in their establishment. All of the cut material (leaves, branches, logs) will be hauled and disposed of off-site. HRS will use the SDGE access road off of Sky Haven as the ingress and egress point for trucking. Given the limited traffic on Sky Haven, HRS does not anticipate needing a traffic control plan. HRS will perform minor grading on the access roads leading to area 1 to allow proper access for the trucks entering the site. The non-native trees within areas 2 and 3 will be fell and left in place. These trees will also be cut as close to grade as possible and the stumps will be treated with the appropriate herbicide. Given the dense established native habitat in areas 2 and 3 around the non-native trees, HRS anticipated these areas will reestablish to native habitat without supplemental plantings or seeding. Following the completion of the tree removal, HRS will perform minor grading throughout area 1. All equipment work will be performed using low ground pressure equipment to prevent compaction to the soil within the restoration areas. The grading will include the creation of the 0.015 acre wetland area in the area that is currently grassland as well as creating rivulets and floodplain areas within the existing wetland to capture flow from the storm drain so that it infiltrates through the site and aids in the establishment of the native plant species. All slopes along the banks of the creek that are greater than 2.5:1 will be laid back to prevent future erosion. Additionally, HRS will use biotechnical treatments such as willow wattles, small log structures, and fabric encapsulated soil {FES) blankets to stabilize the streambed and banks. Using the results from the soil test, HRS will incorporate the prescribed amendments to create the proper soil agronomy for the establishment of native plant species. Based on our experiences from past projects within the Calavera preserve, having the proper soil agronomy will be one of the primary keys to the projects long- term success. The amendments will be spread using belly grinders and other hand tools. The amendments will Palm Grove Removal and NaUve Plant Restoration Exhibit "E" Project No. 3821 -------------------~---------------------- FOR DESIGN-BUILD SERVICES FOR THE CARLSBAD PALM GROVE REMOVAL AND NATIVE PLANT RESTORATION PROJECT NO. 3821 CARLSBAD MUNICIPAL WATER DISTRICT CARLSBAD, CALIFORNIA FEBRUARY 2015 PROPOSAL TO: Contract Administration Rhonda Heather City ofCarlsbad 1635 Faraday Avenue Carlsbad, CA 92008 PROPOSAL FROM: Habitat Restoration Sciences, Inc. (Name of Firm Submitting Proposal) 4901 El Camino Real, Ste D (Address) Carlsbad CA 92008 (City, State, Zip Code) (760) 479 4210 phone (760) 479 4190 fax (Telephone & Fax Number) 4/7/2016 (Date Submitted) Note: All portions of this Price Proposal Form must be completed and must include the signed Declaration on the last page of this form before the Price Proposal is submitted. Failure to execute the Declaration will result in the Proposal being rejected as nonresponsive. Page E-2 3/21/2016 1 Palm Grove Removal and Native Plant Restoration Project No. 3821 ············-··-~·-···----------------- Proposer, represents that a) it has the appropriate active Contractor's license required by the State of California; b) it has carefully read and examined the Proposal Documents for the proposed Work on this Project; c) it has examined the site of the proposed Work and all information available to Proposers; d) it has become familiar with all the conditions related to the proposed Work, including the availability of labor, materials, and equipment; e) that all information and submittals provided as part of the Proposal process are accurate and correct. Proposer hereby offers to furnish all labor, materials, equipment, tools, transportation, and services necessary to complete the proposed Work on this Project in accordance with the Request for Proposal and Contract Documents for the sums quoted. Proposer further agrees that it will not withdraw its Proposal within 60 days after the Proposal Deadline, and that, if it is selected as the apparent "best value" responsive and responsible Proposer, that it will, within 20 days after receipt of notice of selection, sign and deliver to CMWD the Agreement and furnish to CMWD all items required by the Request for Proposal and Contract Documents. If awarded the Contract, Proposer agrees to complete the proposed Work within the Contract Time specified in the Agreement in conformance with all provisions of the Request for Proposal and Contract Documents. Proposer acknowledges that it is Proposer's responsibility to ascertain whether any Addenda have been issued and if so, to obtain copies of such Addenda from CMWD's facility at the appropriate address stated on Page 1 of this Price Proposal Form or from the CMWD website. Proposer therefore agrees to be bound by all Addenda that have been issued for this Proposal. The Total Project Cost shall include all costs to complete the Work and shall include all allowances (CMWD provided and Design/Builder provided) and any involuntary changes that impact the Total Project Cost. The Total Project Cost shall NOT include any voluntary Project Enhancements/Innovations/Energy Efficiency Voluntary Alternatives submitted in the Technical Proposal or any Alternatives defined herein. Page E-3 3/21/2016 Palm Grove Removal and Native Plant Restoration Project No. 3821 4 PRICE PROPOSAL Palm Grove Removal and Native Plant Restoration TOTAL PROJECT COST !311 lo j, ~,1 jo~jo j* (Place figures in appropriate boxes) Provide all design, engineering, coordination, labor, materials, equipment, accessories, and Design Build Entity and subcontractor overhead, mark-up, and profit required for the following Alternates. Indicate by marking only one of the three boxes ("Add", "Deduct", or "No Change11) and state the amount by placing figures in the corresponding boxes. Check the "No Change" box when there is no change in the Price Proposal. Failure to quote an amount or check "No Change" or the insertion of any words that qualify the Price Proposal will result in the Proposal being rejected as non responsive. No extension of time will be granted if the Alternate is accepted. PROPOSER PROPOSED Al TERNATE Alternate No. I $[I], I I I I I I I * ' DADD (Add description or label D DEDUCT Unused) (Place figures in appropriate boxes) (x] NO CHANGE CMWD reserves the right to accept this alternate concurrent with the Notice to Proceed for Phase 1. PROPOSER PROPOSED ALTERNATE Alternate No. I $ [I] I I I I I I I * J , DADD {Add description or label D DEDUCT Unused) (Place figures in appropriate boxes) WNO CHANGE CMWD reserves the right to accept this alternate concurrent with the Notice to Proceed for Phase 1. Add additional proposed alternates using specified format if needed. Page E-4 3/21/2016 Palm Grove Removal and Native Plant Restoration rv1tJnic,,,a11rVat01 Dwtnct Project No. 3821 TYPE OF ORGANIZATION: Corporation ----'C...-------------------( Corporation, Partnership, Individual, Joint Venture, etc.) IF A CORPORATION, THE CORPORATION IS ORGANIZED UNDER THE LAWS OF: THE STATE OF: California (State) NAME OF PRESIDENTOF THE CORPORATION: Mark Girard (Insert Name) NAME OF SECRETARY OF THE CORPORATION: Andy Thomson (Insert Name) IF A PARTNERSHIP, NAMES AND TITLES OF PERSONS SIGNING THE BID ON BEHALF OF PROPOSER AND ALL GENERAL PARTNERS: PERSONS SIGNING THE BID ON BEHALF OF PROPOSER: GENERAL PARTNERS: CALIFORNIA CONTRACTORS LICENSE(S): Habitat Restoration Sciences, Inc. ---------------------(Insert Name and Title) ---------------------(Insert Name) (Insert Names Continued) Name of Licensee A, C-27 842661 07/31/2016 (Classification) (License Number) (Expiration Date) (For Joint Venture, list Joint Venture's license and licenses for all Joint Venture partners.) Page E-5 3/21/2016 Palm Grove Removal and Native Plant Restoration Project No. 3821 The following documents are submitted with and made a condition of the Proposal: 1. Proposal Bid Security in the form of Bid Bond -----------------------(Bid Bond or Certified Check) I, _M_ar_k_G_ir_a_rd _________ (Printed name), hereby declare that I am the __ P~r~e=s~id~e~o ..... t _________ (Title) of Habitat Restoration Sciences, Inc. (Name of Proposer) submitting this Price Proposal Form; that I am duly authorized to bind the Proposer and execute this Price Proposal Form on behalf of Proposer; and that all information set forth in this Price Proposal Form and all attachments hereto are, to the best of my knowledge, true, accurate, and complete as of its submission date. I hereby attest to and will abide to the Proposer's Representations described in the Price Proposal. I declare, under penalty of perjury, that the foregoing is true and correct and that this declaration was subscribed at: __ 4_9_0_l_E_l_C_a_m_in_o_R_e_al~, _C_a_rl_sb_a_d ____ (Location and city), County of San Diego , State of __ C_a_li£_o_r_n_ia _____ ~ on 4/6/2016 (Date). (Signature) \ Mark Girard. President (Print Name and Title) Page E-6 3/21/2016 Palm Grove Removal and Native Plant Restoration Project No. 3821 BID SECURITY FORM (Check to Accompany Proposal) *NIA (NOTE: The following form shall be used if check accompanies Proposal.) Accompanying this proposal is a *Certified *Cashier's check payable to the order of Carlsbad Municipal Water District, in the sum of ______________________________ _ ------------------------dollars ($ ), this amount being ten percent (10%) of the Total Project Cost as defined in Section 3 of the Pricing Proposal. The proceeds of this check shall become the property of the CMWD provided this proposal shall be accepted by the CMWD through action of its legally constituted contracting authorities and the undersigned shall fail to execute a contract and furnish the required Performance, Warranty and Payment Bonds and proof of insurance coverage within the stipulated time; otherwise, the check shall be returned to the undersigned. The proceeds of this check shall also become the property ofthe CMWD ifthe undersigned shall withdraw his or her bid within the period of fifteen (15) days after the date set for the opening thereof, unless otherwise required by law, and notwithstanding the award of the contract to another bidder. PROPOSER *Delete the inapplicable word. (NOTE: If the Proposer desires to use a bond instead of check, the Bid Bond form on the following pages shall be executed--the sum of this bond shall be not less than ten percent (10%) of the total amount of the bid.) Page E-7 3/21/2016 Wster District KNOW ALL PERSONS BY THESE PRESENTS: Palm Grove Removal and Native Plant Restoration Project No. 3821 BIDDER'S BOND (To Accompany Proposal) That we, Habitat Restoration Sciences, Inc. , as Principal, and International Fidelity Insurance Company , as Surety are held and firmly bound unto CMWD, in an amount as follows: (must be at least ten percent (10%) of the bid amount) TEN percent of the total amount bid for which payment, well and truly made, we bind ourselves, our heirs, executors and administrators, successors or assigns, jointly and severally, firmly by these presents. THE CONDITION OF THE FOREGOING OBLIGATION IS SUCH that if the proposal of the above-bounden Principal for: DESIGN-BUILD SERVICES FOR THE PALM GROVE REMOVAL AND NATIVE PLANT RESTORATION CONTRACT NO. 3821 in the City of Carlsbad, is accepted by CMWD, and if the Principal shall duly enter into and execute a Contract including required bonds and insurance policies within twenty (20) days from the date of award of Contract by the CMWD, being duly notified of said award, then this obligation shall become null and void; otherwise, it shall be and remain in full force and effect, and the amount specified herein shall be forfeited to CMWD. Page E-8 3/21/2016 Palm Grove Removal and Native Plant Restoration Project No. 3821 In the event Principal executed this bond as an individual, it is agreed that the death of Principal shall not exonerate the Surety from its obligations under this bond. Execute by PRINCIPAL this _~it-· r)_r_,_'"' __ day of Anu l '20 /6 Principal: Habitat Restoration Sciences, Inc. Executed by SURETY this ___ 1_st ___ day of ___ A~p_ri_l ___ ,20_16 __ _ SURETY: International Fidelity Insurance Company (sign here) (name of Surety) One Newark Center, Newark, NJ 07102 -5207 Tara Bacon (print name here) (printed name of Attorney-in-Fact) (Attach corporate resolution showing current power of attorney.) (Proper notarial acknowledgment of execution by PRINCIPAL and SURETY must be attached.) (President or vice-president and secretary or assistant secretary must sign for corporations. If only one officer signs, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering that officer to bind the corporation.) APPROVED AS TO FORM: CELIA BREWER City Attorney Deputy City Attorney Page E-9 3/21/2016 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of San Diego ) on April 1, 2016 before me, Maria Hallmark, Notary Public (insert name and title of the officer) personally appeared __ T_a_ra_B_a_c_o_n _____________________ _ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signa~ (Seal) MARIA HALLMARK -Commission # 1986082 1 Notary Public -California ~ j San Diego County ~ ;; w 9 11 11 +M~ ~o~nz;tx~~s Ci~ ., . :'. \'.,: ·:. \)i}'''.'(,i:C. {~i'i~*i~f L~p:~,i:V' ... ·....... '';11QWElUGt'; 4;fiQRU!Yi("i< .. '' ,: .,•'••••················,·Nf.~ijNicttifi~tfi:~,)~t~~~~~te/i~~~·~·Aij~·····:·.···········,.··.·. oNE··NkwARk cEN±ER.20:rH. FLoo~ NEWARK, NEWJERSEY 01102-5201·•··.·. KN6WALLMEN BY l"HEl>E P~ESENTS: Th~t INl"ERNATIONAL FIDELITY IJsuRANCE 6oMPAN~ 1 a corporation orga~iied and existing .under the laws. of the State ,of Ne"Y Jersey, . and ALLEGHENY CASUALTY COMPANY a corporation organized and existing .under the l,;1ws of the State of Pennsylvania, having tl'leir principal office in the. City of Newark, New Jersey, do hereby constitute and appoint JOHN R QUALIN, KYLE;KING, TARA aACON, DALE HARSHAW, BRAD ORR, GEOFFREY SHELTON ~ I . . I Sanl)ieg6, CA. •• .•. · \ ~~~~~~~~~~~~ their true ~nq .lawful a:ttorney(s)-in-tapt to execute, sea.rand deliver for and on its betia)f as surety,. any and all bonds and u~c:1ertaki~gs; contracts of indern~lty . and other writings obl1gatq. ry m th. e natu. re ther.eof, w. h1ch are. o .. · r rnay be all.owed, re. gu1re.·d or per.mittea. by Ja"Y., statut.e, rule .. r.egula. ti.o· n, con .. tr ... act. o.r .otherw··· .1se, a.nd. th.e ex .. ecuflo·n· ·o.l s.u. c. ti .. inst.rument{s) inpur.suan· •. ce. · of. th. ese p. resents;.··.shall b. e as b.indin. g upon the .. said INT .. E. RNA .. Tl.ONALF.10. E·. LITY JN·S· URANCE COMPANY and>ALLEGHENY CASUALTY COMPANY; as fully and amply, to all intents>aria purposes, as if the same had been duly executed and acknowledQed by their regular1ye1ectecJ ?fficers attheirprinclpal offices, .•. · .. · .· . .· ·•· ... ··. ·. ·•·. . • . . .•• ··: ·• This Power of Attorney is executed, and ma_y be revoked, pursuant to ,;1nd bY authority of the By-Laws of INTERNATIONAL FID!;LlTY INSURANCE COMPANY and ALLEGHENY CASUALTY COMPANY and is granted µnder ahdby authority of the following resolution adoptedby the. Board of• Directors of· INTERNATIONAL FIDELl"(Y lt--!SLJRANCE CQMPAN.Y at a meeting dµlyheld on.the 20th day of Jµly, 2Q10 and.by tile 13oard pf Directors qf ALU::GHENY CASUA!. TY COMPANY at a meeting duly. held on the 15th day of August, 2000: · · · • · ·· · ·· · ·. "RESOLVE;D; that:·· ( 1) the President, Vice President, E~ecutive, Vice President br Secretary of the ¢orp9ratioh shall hav~lhe power fo appoint,. ,;1nd td revoke the appolntmen.ts of, Attqrpeys-in-Fact or.agents with power am:I authority as.defined oflim1ted in trieir respective powers;af attorney, ancjto.exe.i:;ut~ on tJehalf of the Corpora!iqn and affix the Corporation'.s sealtheret(), bonds; undertakings; recognizances, contracts of 1ndemnitv and otherwntten ql;Jhgat1ons 1n the n.· atu.re t. hereo. ·.f or related thereto.; .. · and (2). ·. any s. uch .O· fficers of the .C. or. por. a. tio.n ma. y appoint arid·r·e· vqke. the a .. pp .. o. · intmerifs .. ofjo ... intccontrol, .. c •. us.· todt.an·s· ', age. nts for acceptance of process, and Attorneys-in-fact with authority to execute waivers and consents on behalf of the Corporation; and (3) the signature of any such Officer.of, the Corporation ,;1nd the Cor13(?ration·~ seal may be .affixed 9yfpcs!mile to, any power of attorney or certification giver for the execution of any bond, underta~1ng, rec~ni:zance, ,contract of 11:,c:Jernrnty or ott,er written obligation IQ the .nature l~~reof pr related thereto, SL!Cil s1gnature.,a~d seals when ·.so u .. s·. e.d .whe .. t.her.h.·ere·. to ... fore.· 9r ~ere. a. fte.r; •.. · being .. her~by a .. d. opt. ed by the···C· ·< o·. rporat.10.n as. th.e·.ong.mal s1g. n. atu···re ,of. such.•:officer and .the .. ong1nal seal of the Corporatron, to be valid and bmdmg upon the Corporation with the same force and effect as though manuafly affixed;'' ·. · .• · ··· · :, · IN WITNESS WHEREOF, INTERNATIONAL FIDELITY· INSURANCE COMPANY and ALLEGH!;:NY CASUALTY COMPANY have each executed and attested these presents on.this 12tt, day of March, 2012. · · · · · · . . RQBERTW. MINSTER E. xec. utiv.e V·J.ce. •.oP. r<;l.sid. ehtlC·. hief O.p .e .. vati·n·g·· ••.Offi·c·e··.r (lnternaliona1F1del1ty Insurance Company) · and President (Allegheny Casualty Company).· . . . .· . . . : On this: 12th day of March 201i before,.rne cam~ the individual who execJtep ihe preceding instrument, to me persoMIW known, arid,. being by me duly sworn, said he is thetherein described and ,;1uthorized officer of INTE:Rf':JATIQNAI. flPE:LITY INSURANCE COMPANYand ALL!=GHEN'Y CASUAL TY COMPANY; that the seals ~ffixed to saidinstn.iment are the Corporate Seals ()f said Companies; that the said Corporate Seals and his signature were . dlJly affixed by order of the Boards of Directors of said (;ornpanies; · · IN TES"f'IMON'Y \/VHl:;REOF, J have t,ereuhto setin'{handaffixe~ my Official Se~l, · at the City of Newark, New Jersey Jhe day and year first above wntten< · ··~ ............ · ... ··.• ... · ..... · ..... ,· .. ·····.• .. ···· .. ·.··,··~···7di·.·.·.r.··.··· .. · .... ····· .. •.····.'.············ ... ··· ... ·• .· ' . ·: ... · · .. · .: ·: .· .. · -i·. ,· ·: .· .·. . .. . -. . . . . A NOTARYPUBLlCOFNEw'JERSEY My Comm[ssion ExpiresApril 16, 2019 I, the undersigned officer oHNTERNATIONAl.FIDELITY INSURANCE COMPANY and AL~EGHENY CASUALTY COMPANY do hereby certify that I have · compared the foregoing copyqf the Power of Attorney cmd affidavit, and the copy of the . Sections .of. ,the Byc,Laws of said Companies as set forth. in satd Power of AUorney, with the originals on filEl iri ]he honie office of said cqmpanies, an(] thpt the same ,;1re correct transcripts thereQf, and of the wl'lole of the said originals, and thal the said Power otAttomey h,;1s not been revoked and is now in full forpe and. Elffect. . CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of Californias County of .,1::1V: On Arin.iL li . '?.,,()ft. ' before me, Date personally appeared M:1:ttk:' G.1 fl A fl a ) ) J~ er S~c i1 /-k Y Lt~ 1v caw z p1;,t1l ,~ Here Insert Name and Title of the Officer .41v'.IJ P1:;n]L E-lllt:TtA Name(s) df Signer(s) who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) ).87'are subscribed to the within instrument and acknowledged to me that ~/~~/they executed the same in t;usih.er/their authorized capacity(ies), and that by l)is?'l),e(Ytheir signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. • JAMES SCOTT HOYLE Commission# 2145533 ~ Notary Public· California I 1 San Diego County .. 4 0 0 0 0 0MJ gozi'!J· ;xgi~s0M!rJ,Jfel Place Notary Sea/ Above I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Signature Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document Title or Type of Document: Document Date: _______ _ Number of Pages: Signer(s) Other Than Named Above: ____________ _ Capacity(ies) Claimed by Signer(s) Signer's Name:~-----------Signer's Name: ____________ _ 0 Corporate Officer -Title(s): ______ _ D Corporate Officer -Title(s): ______ _ D Partner -D Limited D General D Partner -D Limited D General D Individual D Attorney in Fact D Individual D Attorney in Fact D Trustee D Guardian or Conservator D Trustee D Guardian or Conservator D Other: ______________ _ D Other: _____________ _ Signer Is Representing: ________ _ Signer Is Representing: ________ _ ©2014 National Notary Association • www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907 March 31, 2016 ADDENDUM NO. 1 City of Carlsbad. RE: PROFESSIONAL HABITAT RESTORATION AND ENHANCEMENT AT CALAVERA PRESERVE, BID NO. PWRFP16~9JTRAN, CONTRACT NO. Please include the attached addendum in the Notice to Bidder/Request for Bids you have for tile above project. This addendum-~receipt your bid RHONDA HEATHER Contract Administrator Attachment be attached to your Request for Bid when I ACKNOWLEDGE RECEIPT OF ADDENDUM NO. i Public Works contract Administration 1635 Faraday Avenue I Carlsbad, CA 92008 I 760-602-4677 t CARLSBAD MUNICIPAL WATER DISTRICT CALAVERA PALM GROVE REMOVAL AND NATIVE PLANT RESTORATION From: No. of Pages: Date: Bid Opening Date: PROJECT NO. 3821 Rf P No. PWRFP16-93TRAN Addendum No. 1 Sherri Howard, Project Manager Phone: (760) 602-2756 Sherri.Howard@carlsbadca.gov 2 {including this page) April 1, 2016 Aprtl 7, 2016-4:00 pm (unchanged) MANDATORY PRE-PROPOSAL JOB WALK A Mandatory Pre-Proposal Job Walk was held Tuesday, March 31, 2016 at 10:00AM. Prospective bidders were shown the impact area (Calavera Dam), then drove to the project site which is the mitigation for the impacts at Calavera Dam. Prospective bidders were provided a copy of the site map and the 30% plan set which is also available through the city web site. REVISIONS TO THE REQUEST FOR PROPOSAL The following clarifications, deletions, and additions shall be incmporated into the Request for Proposal. Deletions are struck through, and additional text is underlined. Page 12 Section 5.3.5: • Construction experience. Sentence 4. The most qualified Contractors shall have experience with the specific type of vegetation proposed to be installed. A qualified contractor will possess all necessary licenses for landscape contracting, including a licensed Pest Control Operator who will employ best management practices regarding timing, conditions, and application methods and a Class A-General Engineering Contractor's License and/or a Class C-27 · Landscaping. Contract No. 3821 PWS15-58TRAN Addendum No. 1 1 Page 17 Section 6.3: • Licensing and registration. The Design Builder and each firm must be licensed in California for the type of work to be performed. The Designer must include in responsible charge a landscape architect registered in California. The Contractor must be Class A General Engineering and/or a Class C-27 -Landscaping Classification. Contract No. 3821 PWS15-58TRAN Addendum No. 1 2 April 1, 2016 ADDENDUM NO. 2 ityof sbad RE: PROFESSIONAL HABITAT RESTORATION AND ENHANCEMENT AT CALAVERA PRESERVE ~ BID NO. PWRFP16-93TRAN, CONTRACT NO. 3821 Please include the attached addendum in the Notice to Bidder/Request for Bids you have for the above project. This addendum--receipt acknowledged--must be attached to your Request for Bid when your bi~,mitted. / /',,/" / / / / #....-----; // ( /'" ---~ ;Tj. / .. _ .. / ~~~ RHONDA HEATHER Contract Administrator Attachment I ACKNOWLEDGE RECEIPT OF ADDENDUM NO. 2 Public Works Contract Administration 1635 Faraday Ave.m..1e I Carlsbad, CA 92008 i 760-602.-4677 t CARLSBAD MUNICIPAL WATER DISTRICT CALAVERA PALM GROVE REMOVAL AND NATIVE PLANT RESTORATION From: No. of Pages: Date: Bid Opening Date: PROJECT NO. 3821 RFP No. PWRFP16-93TRAN Addendum No. 2 Sherri Howard, Project Manager Phone: {760) 602~2756 Sherri.Howard@carlsbadca.gov 1 April 1, 2016 April 7, 2016-4:00 pm (unchanged) MA!-.!DATORY PRE-PROPOSAL JOB WALK -CORRECTION OF DATE The Mandatory Pre-Proposal Job Walk was held Tuesday, March 29, 2016 at 10:00AM (corrected from Addendum No. 1 that reflected Tuesday, March 31, 2016). Contract No. 3821 PWRFP16-93TRAN Addendum No. 2 1 ~:,. City of Carlsb April 6, 2016 ADDENDUM NO. 3 RE: PROFESSIONAL HABITAT RESTORATION AND ENHANCEMENT AT CALAVERA PRESERVE, BIO NO. PWRFP16-93TRAN, CONTRACT NO. 3821 Please include the attached addendum in the Notice to Bidder/Request for Bids you have for the above project Please note change in due date for the above-mentioned bid. New,Jiate for bid opening is;. TUESDAY, APRIL 26, 2016 Time remains the same: 4:00 p.m. This acldendum--receipt acknowledged--must be included to your bid when your bid is submit:t.oo--\ / ·_/ _,/ ___....,,,.. / ---- /z-et~#,,",4,/'<A' RHONDA HEATHER Contract Administrator I ACKNOWLEDGE RECEIPT OF ADDENDUM NO. Bidder's Si nature Public Works Contract Administration 1635 Faraday Avenue I Carlsbad, CA 92008 I 760-602-4677 t CARLSBAD MUNICIPAL WATER DISTRICT CALAVERA PALM GROVE REMOVAL AND NATIVE PLANT RESTORATION From: .No. of Pages: Date: Bid Opening Date: PROJECT NO. 3821 RFP No. PWRFP16-93TRAN Addendum No. 3 Sherri Howard, Project Manager Phone: (760) 602-2756 Sherri.Howard@car!sbadca.gov 3 April 6, 2016 Tuesday, April 26, 2016-4;00 pm (NEW DATE!) REVISIONS TO THE REQUEST FOR PROPOSAL The following clarifications, deletions, and additions shall be incorporated into the Request for Proposal. Deletions are s-trud~-thr-ough, and additional text is underlined, (See dates and schedules on page 2 and 3) Contract No. 3821 PWRFP16-93TRAN Addendum No. 3 Page 1 Tentative RFP Dates ~~~~ for Proposal Posting/Mailing; L_ Mandatory Pre-Proposal Job Walk: Written Question Deadline: .-.............. - Second Mandatory Pre-Proposal Job Walk: l-... ~---·--Sec~~d Written Question ~=~-dline: Submittal Deadline: --· ,~--·"'-~·----~---- Tentative Interview: Tentative City Council Award: Notice to Proceed: - Contract No. 3821 PWRFP16-93TRAN Addendum No. 3 - -- Thursday, March 24, 2016 ·- 10:00AM Tuesday, March 29, 2016 --- Thursday, March 31, 2016 10:00AM Thursday, April 14, 2016 Thursday, April 21, 2016 ---·-··--· -··-·-- 4:00PM +uesday, April 7, 2016 Tuesday, April 26, 2016 -- Between 8:30 AM and 11:30 AM T~ur;sday, April 1q, 2016 Tuesday, May 3, 2016 Tuesday, May 17, 2016 Tuesday, June 14, 2016 ,.._ ... =-- MsAElay, May :2:g, lG:l:e Monday, June 20, 2016 - 2 I I l I I I Page 4 Section 2.3 Project Schedule: As indicated in Section 4, it is anticipated that the Design-Build Contract will be awarded by the CMWD Board of Directors on or about May 2016. The design and construction of the completed Project are expected to be initiated no later than September 2016 after the issuance. of the Project N9tice to Proceed (NTP). Below is a list of other assumed interim milestones for the Design-Build Contract. Contract Awarded Project NTP 60-Percent Design Submittal 90-Percent Design Submittal Sta rt Construction (after bird breeding season} Construction complete and submit as-builts 120-day Plant Establishment Period Final Completion Ma)' 2916 June 2016 May 2Q16 June 2016 July 2015 August2016 September 2016 October 2016 November 2016 through February 2017 February 2017 Final walk through with long-term habitat restoration monitor February 2017 and maintenance contractor Modifications to this schedule shall be presented in the Voluntary Design Changes/Enhancements Form in EXHIBIT B (Scope of Design Builder Services). Contract No. 3821 PWRF'P16~93TRAN Addendum No. 3 3 April 1, 2016 City of Carlsbad RE: Habitat Restoration Sciences, Inc. BB&T Insurance Services of California, Inc. BB&T-John Burnham Insurance Services 750 8 Street, Suite 2400 San Diego, CA 92101 (619) 231-1010 Fax (619) 236-9134 CA License # 0619252 Project: Palm Grove Removal and Native Plant Restoration, Project No. 3821 International Fidelity Insurance Company as Surety and BB&T-John Burnham Insurance Services, Inc. as agent has provided surety credit Habitat Restoration Sciences, Inc. for single projects of $5,000,000 and an aggregate uncompleted backlog of $10,000,000. International Fidelity Insurance Company maintains a certificate of authority issued by the Department of Insurance of the State of California and is AM. Best rated at A-(Excellent) with a financial size category of VIL International Fidelity Insurance Company is also listed in the Federal Register Circular 570. If Habitat Restoration Sciences, inc. were to be awarded a contract for a project within this range and if they were to request that we provide the necessary Performance and/or Payment Bonds, we will be prepared to consider the bonds subject to our acceptable review of the contract terms and conditions, bond forms, appropriate contract funding and any other underwriting considerations at the time of the request. Our consideration and issuance of bonds is a matter solely between Habitat Restoration Sciences, Inc. and ourselves, and we assume no liability to third parties or to you by the issuance of this letter. We trust that this information meets with your satisfaction. If there are further questions, please feel free to contact us, International Fidel' CALIFORNIA ALL .. PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1139 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of San Diego on April 1, 2016 before me, Minna Huovila, Notary Public (insert name and title of the officer) personally appeared __ T_a_r_a_B_ac_o_n ____________________ _ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) r':: · '\ '\·\ ~:~;,,,:,ti: ·;;i;f<,,;, ,>,'®: t~\:~-\:t~~,~· \J~~)q ·•. . • ...... 1tii~t\~)~ll?~'.c'~i~;L }:'{ /: A.bLEGHENJ .. CA.StJAL.T:V COM. '·" , ; : · ~~Qw•,-u;4,EJ1~t'IH!~ii~~7~:~~fi:t.'Ni~r~~1:~t~t:i:4J;,,~}i . .\~..,;ii,h ii;a/ii;J• ~;~.1M.i~: tl:ie laws· qf !!:le $tat'e of Ne¥f Jets and Jl;:!'.,'.LEGHE~Y CASUf-1.LTY: C:OMPANY a pofporatiorr · · · ed~md exisUng under the laws ofthtfState of< iPenr,is.ylvariia, ~afi09\fl;leir 'prfn~lp;,iLOffice if'i'the City pfN~w.ar~; Nfiv(Jersey;(ioh~n,by cohstltufo,a itjl / / : ) .>'i . '. :.'. +' \ .. ,, i < > > 1 ,' ' J1' JQHN ~a.· .. ·.···.u···f;L·· .. ·I N,iKYL~KIN,Q; TARA $~CQ~, DAti ~~RSHAY'il, s§.RAQ:d~R; G~QFFR~Y ~l;jEL:f~N · .. S~n'DJegd, CA. '',,''jt,l Wl'tNB$S'VVHERE0P. lNlTERNATIONAGflOELITYJNSURANC!i · ··stE:\d,these prElseqts pn.tliis 12th day of March, 2012.j . .\ .; :: •:• · , .• • .. i, ::.~ '-.. . ···;·.\>' ·. ii .Y ;~l~J: gj~~/7Mey; . i~iRtiwl!,i~~8~~:!t; eny Ca,;ualty Comj:)aTJy} · ·· ,· 6rj thi~ ) ?th da{ of i1arct1:26j i. Gefore)ne'pa~, the ir1d1Vfdqal ;,.,bo ~i~c~teg pi~ p~eceding' i()~t~~~~nt; t~ m~ ~e(soh~ll{kno~ct. a~d: 'tJ~ing• by me 1u1y( · sworn/ s,aid he isAhe tlierein d9$cribed ani;l aull)orized, 9:ffiper of lf'ilTE~N.A;Tlf;).NAL {IPELITY ll'JSURAf\!C~ J:::pMPANYaod. A'L~EG}-lENY; CA$Uf;L T:Y COMPANY : ' ihat th¢ sears ' ;iffi,x.ed Jcj'said ln$tri.iini'i'nt,ifre the' GomciratfSeals of said Companies; thaf the said dorporate.Seals'and his signature were' ' ctuiyafflx~dbyord~r.¢ftheJilb~rc1sofDfrect6rs.ofsaid¢ompanles; . · ·.·.·. ' ·. ·. , ·· · .. ·. ····· ·.. ··· ..• ) iJN TE··· st1MdN'Y'WHEREO···.' i=,j ~ave,her!:l,\lrito sect,iinfh~nd;,affixe~.'. ttij Official Se~E · atJhe•C1ty pfNewark, New Jersey the day and Yeilrtrst above wr1tt,m: :·•: ,:, .. ,,. ·,.·, i;,::t \ : ' I, the, undel'signed Qffi¢er of 1NJE8NAT1PN-%-fl DELITYJNS!J~.A;N~E QqMPA!'J'(and AL,LEGHENYCAS ', ,, TY COMPANY do hereby certify that I have corT1pared fueforei;1oini;i copy,of thepqwer qf.Attprney and aff)d.iyit, and th~ copyofthe SflC\jons c,f the.By ·. . of sa.id Companies as set forth in sa1d .. · .. Po'(Ver dfAttbrhey; witli the'origin?IS, ori file in. Jlie home. qffice of sa\d co111panies, (,lnd.that,thesame ar,e correct trarisc;ript$ tliereqf, at,ld of tlje v,.,t>iole :. • ,, . o.f tne' said. orig'iria~. ?tid thatthe :S~icj P-1,lwer of ~ttqrn.ey tias f1Qt bee,n .r¢vokj:lcl ancf is now in full f9r<::e and ~ff~ct. ,. . ' ·.,. .. . ~ ., . . . '. . ' , . . "' .· . ' . . . . . . . . . . . ' . .. . '> ·: .. ~ .. , . . . . ' . ' . ·' .. " •'i h~ve t1;rJu¢t<i"s~ ~~.hJmct::1~is .. ·.·. · x-;,\1 i~t > oay ot\ ,. -~ .,, Habitat Restoration Sciences, Inc. 2016 State Prevailing Wage Standard Schedule of Charges Professional & Management Personnel Habitat Management Coordinator/Principal ...................................................................................... ,. $210.001hr Senior Project Manager ........................................................................................................................ $160.00/hr Senior Engineer/ Senior Landscape Architect/ Senior Geologist.. ..................................................... $160.00/hr Engineer/Landscape Architect/Geologist ............................................................................................ $120.00/hr Senior Habitat Restoration Specialist ................................................................................................... $130.00/hr Habitat Restoration Specialist ......................................... , .................................................................... $100.001hr CADD Designer/GIS Technician ........................................................................................................... $75.00/hr Administration/Clerical Support ............................................................................................................ $65.00/hr Construction Prevailing Wage Classifications: Landscape Operating Engineer ............................................................................................................ $135.00/hr Landscape Inigatio11 Laborer ............................................................................................................... $120.00/hr Landscape Hydro Seeder ...................................................................................................................... $120.00/hr Construction Laborer ............................................................................................................................. $120.00/hr Landscape Irrigation Tender ................................................................................................................... $55.00/hr Maintenance Prevailing Wage Classifications: Landscape Supervisor/Project Manager .............................................................................................. $125.00/hr Landscape Assistant Supervisor ........................................................................................................... $105.001hr Foreman ................................................................................................................................................... $85.00/hr Assistant Foreman ................................................................................................................................... $65.00/hr Skilled Laborer (QAL~ 5+ Years' Experience) ..................................................................................... $50.00/hr Landscape Maintenance Laborer ........................................................................................................... $33.00/hr Equipment/Vehicles Truck Usage ....................................................................................................................................... $125.00/day Water Trailer/Buffalo ............................................................................................................................ $75.00/day Dump Trailer ......................................................................................................................................... $75.00/day GPS Unit. ............................................................................................................................................... $90.00/day Quad/Mule .......................................................................................................................................... $100.00/day ATV with Spray Rig .......................................................................................................................... $150.00/day Dingo Equipment/Tractor .................................................................................................................. $450.00/day CAT /John Deere Dozer, Excavator, Skid Steer, etc ........................................................................ $450.00/day Water Truck ........................................................................................................................................ $450.00/day Chipper/ Fiydroseeder ....................................................................................................................... $450.00/day Roll-off Truck ........................................................................................................ $600.00/day plus tipping fees Emergency and Holidays -Minimum charge of two hours will be billed at 1.5 times the normal rate. Sundays are double time at 2.0 times normal rate. Material and Outside Services -Herbicides, subcontractors, rental of special equipment, special fencing or signage materials, etc., are charged at 1.15 times the direct cost. Travel Expenses -Per Diem where overnight stay is involved is charged at cost. Revised January 2016 (earls bad Municipal Water Dist1ict GENERAL CONDITIONS Per section 3.1.4 Page 1 of 73 Palm Grove Removal and Native Plant Restoration Project No. 3821 General Conditions Municipal Water District Calavera Palm Grove Removal and Native Plant Restoration Project No. 3821 TABLE OF CONTENTS Page RECITALS .................................................................................................................................................................. 6 ARTICLE 1 GENERAL PROVISIONS 1.1 Basic Definitions .......................................................................................................................................... 6 1.2 Ownership and Use of Contract Documents ............................................................................................. 11 1.3 Interpretation ........................................................................................................................................... 12 ARTICLE 2 CMWD 2.1 Fee and Permit Requirements .................................................................................................................. 13 2.2 Access to Project Site ................................................................................................................................ 14 2.3 CMWD's Right to Stop the Work ............................................................................................................... 14 2.4 CMWD's Right to Carry Out the Work ......................................... ,. ........................................................... 14 2.5 CMWD's Right to Replace CMWD's Representative ................................................................................. 14 ARTICLE 3 DESIGN BUILDER 3.1 Review of Contract Documents and Field Conditions by Design Build Entity; Single Point Responsibility of Design Builder ......................................................................................................................................... 14 3.2 Supervision and Construction Procedures ................................................................................................ 15 3.3 Labor and Materials .................................................................................................................................. 16 3.4 Design Builder's Warranty ........................................................................................................................ 17 3.5 Taxes ......................................................................................................................................................... 17 3.6 Permits, Fees, and Notices ........................................................................................................................ 17 3.7 Applicable Code Requirements ................................................................................................................. 18 3.8 Superintendent ......................................................................................................................................... 18 3.9 Toxic Materials .......................................................................................................................................... 19 3.1 o Hazardous Materials ................................................................................................................................. 19 3.11 Construction Documents .......................................................................................................................... 20 3.12 Monthly Reports ....................................................................................................................................... 21 3.13 Other Reports ........................................................................................................................................... 21 3.14 Notice of Labor Dispute ............................................................................................................................ 21 3.15 Guarantee ................................................................................................................................................. 21 3.16 Schedules Required of Design Build Entity ............................................................................................... 22 3.17 As-Built Documents ................................................................................................................................... 24 3.18 Documents and Samples at Project Site ................................................................................................... 24 3.19 Shop Drawings, Product Data, and Samples ............................................................................................. 24 3.20 Use of Site and Clean Up ........................................................................................................................... 25 3.21 Project Site Maintenance .......................................................................................................................... 26 3.22 Cutting, Fitting, and Patching .................................................................................................................... 27 Page 2 of 73 General Conditions Calavera Palm Grove Removal and Native Municipal Water District Plant Restoration Project No. 3821 3.23 Access to Work ......................................................................................................................................... 28 3.24 Royalties and Patents ................................................................................................................................ 28 3.25 Differing Site Conditions ........................................................................................................................... 28 3.26 Concealed, Unforeseen, or Unknown Conditions or Events ..................................................................... 28 3.27 Information Available to Proposers .......................................................................................................... 29 3.28 Liability for and Repair of Damaged Work ................................................................................................ 29 3.29 Indemnification ......................................................................................................................................... 30 ARTICLE 4 ADMINISTRATION OF THE CONTRACT 4.1 Administration ofthe Contract by CMWD's Representative .................................................................... 32 4.2 Design Builder Change Order Requests .................................................................................................... 34 4.3 Claims ........................................................................................................................................................ 35 4.4 Assertion of Claims, ................................................................................................................................... 37 4.5 Decision of CMWD's Representative on Claims ........................................................................................ 38 4.6 Mediation {Not Used) ............................................................................................................................... 39 4.7 Arbitration ................................................................................................................................................. 39 4.8 Waiver ....................................................................................................................................................... 39 ARTICLE 5 SUBCONTRACTORS 5.1 Award of Subcontracts and Other Contracts for Portions of the Work .................................................... 39 5.2 Subcontractual Relations .......................................................................................................................... 40 5.3 Contingent Assignment of Subcontracts ................................................................................................... 41 ARTICLE 6 CONSTRUCTION BY CMWD OR BY SEPARATE CONTRACTORS 6.1 CMWD's Right to Perform Construction and to Award Separate Contracts ............................................. 41 6.2 Mutual Responsibility ............................................................................................................................... 41 6.3 CMWD's Right to Clean Up ....................................................................................................................... 42 ARTICLE 7 CHANGES IN THE WORK 7.1 Changes ..................................................................................................................................................... 42 7.2 Changes Definitions .................................................................................................................................. 42 7.3 Change Order Procedures ......................................................................................................................... 43 7.4 Field Orders ............................................................................................................................................... 47 7.5 Variation in Quantity of Unit Price Work .................................................................................................. 48 7.6 Waiver ....................................................................................................................................................... 48 ARTICLE 8 CONTRACT TIME 8.1 Commencement of the Work ................................................................................................................... 48 8.2 Progress and Completion .......................................................................................................................... 49 8.3 Delay ......................................................................................................................................................... 49 8.4 Adjustment of the Contract Time for Delay .............................................................................................. 49 Page 3 of 73 General Conditions {Carlsbad Calavera Palm Grove Removal and Native Municipal Water District Plant Restoration Project No. 3821 8.5 Compensation for Delay ........................................................................................................................... 51 8.6 Waiver ....................................................................................................................................................... 52 ARTICLE 9 PAYMENTS AND COMPLETION 9.1 Cost Breakdown ........................................................................................................................................ 52 9.2 Progress Payment ..................................................................................................................................... 52 9.3 Application For Payment ........................................................................................................................... 53 9.4 Certificate For Payment ............................................................................................................................ 54 9.5 Deposit of Securities in Lieu of Retention and Deposit of Retention into Escrow .................................... 55 9.6 Beneficial Occupancy ................................................................................................................................ 56 9.7 Substantial Completion ............................................................................................................................. 57 9.8 Final Completion, Final Payment and Release of Retention ..................................................................... 58 ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY 10.1 Safety Precautions and Programs ............................................................................................................. 59 10.2 Safety of Persons and Property ................................................................................................................. 59 10.3 Emergencies ...................................................................................................................................................... 60 ARTICLE 11 INSURANCE AND BONDS 11.1 Design Builder's Insurance ........................................................................................................................ 60 11.2 Performance Bond and Payment Bond ..................................................................................................... 62 ARTICLE 12 UNCOVERING AND CORRECTION OF WORK 12.1 Uncovering of Work .................................................................................................................................. 62 12.2 Correction of Defective Work and Guarantee to Repair Period ............................................................... 63 ARTICLE 13 TERMINATION OR SUSPENSION OF THE CONTRACT 13.1 Termination by Design Builder .................................................................................................................. 64 13.2 Termination by CMWD for Cause ............................................................................................................. 65 13.3 Suspension by CMWD for Convenience .................................................................................................... 66 13.4 Termination by CMWD for Convenience .................................................................................................. 67 ARTICLE 14 STATUTORY AND OTHER REQUIREMENTS 14.1 Nondiscrimination ..................................................................................................................................... 68 14.2 Prevailing Wage Rates ............................................................................................................................... 71 14.3 Payroll Records (Not Used) ....................................................................................................................... 71 14.4 Apprentices (Not Used) ............................................................................................................................. 71 14.5 Construction Work Day ............................................................................................................................. 71 Page 4 of 73 General Conditions (earls bad Municipal Water District ARTICLE 15 MISCELLANEOUS PROVISIONS Calavera Palm Grove Removal and Native Plant Restoration Project No. 3821 15.1 Governing Law .......................................................................................................................................... 71 15.2 Successors and Assigns ............................................................................................................................. 71 15.3 Rights and Remedies ................................................................................................................................. 71 15.4 Survival ................................................................................................................................................... , .. 72 15.5 Complete Agreement .................................. , ............................................................................................. 72 15.6 Severability of Provisions .......................................................................................................................... 72 15.7 CMWD's Right to Audit ............................................................................................................................. 72 15.8 Notices ......................................... , ............................................................................................................ 72 15.9 Time of the Essence .................................................................................................................................. 73 15.10 Mutual Duty to Mitigate ........................................................................................................................... 73 15.11 Design Builder's Awareness and Compliance with ADA Act of 1990 and Related Standards ................... 73 Page 5 of 73 General Conditions (earls bad Municipal Water District Palm Grove Removal and Native Plant Restoration Project No. 3821 RECITALS The documents included in the Request for Proposals and the Design Build Entity's Proposal, incorporated herein, and designated as part of the Contract Documents are provided by CMWD to establish the scope, level of quality and design intent, and the reporting procedures for the development and construction of the entire Project. The Design Build Entity shall comply with the Contract Sum, the Contract Time, the approved Contract Schedule as applicable, and the Work described in the Contract Documents. By incorporating the Design Build Entity's Proposal as a part of this Contract, CMWD does NOT accept any provision of the Design Build Entity's Proposal that is not in conformance with the criteria of the Request for Proposals. In consideration of the mutual agreements, covenants and conditions set forth below, and the Recitals set forth above, the adequacy of which is hereby acknowledged, Design Build Entity and CMWD agree as follows: ARTICLE 1 GENERAL PROVISIONS 1.1 BASIC DEFINITIONS 1.1.1 AGREEMENT The Agreement is supported by the General Conditions and is part of the Contract Documents. 1.1.2 APPLICABLE CODE REQUIREMENTS The term "Applicable Code Requirements" means all laws, statutes, the most recent building codes (as they were applied to secure a Building Permit from City of Carlsbad), ordinances, rules, regulations, and lawful orders of all public authorities having jurisdiction over CMWD, Design Build Entity, any Subcontractor, the Project, the Project site, the Work, or the prosecution of the Work. 1.1.3 APPLICATION FOR PAYMENT The term "Application for Payment" means the submittal from Design Build Entity wherein payment for certain portions of the completed Work is requested in accordance with Article 9 of the General Conditions. 1.1.4 BENEFICIALOCCUPANCY The term "Beneficial Occupancy" means CMWD's occupancy or use of any part of the Work in accordance with Article 9 of the General Conditions. 1.1.5 CEQA The term "CEQA" means the California Environmental Quality Act, Public Resources Code Section 21000 et seq. 1.1.6 CERTIFICATE FOR PAYMENT The term "Certificate for Payment" means the form signed by CMWD's Representative attesting to the Design Build Entity's right to receive payment for certain completed portions of the Work in accordance with Article 9 of the General Conditions. 1.1.7 CERTIFICATE OF SUBSTANTIAL COMPLETION See Article 9.7 of the General Conditions. 1.1.8 CHANGE ORDER See Article 7 .2 of the General Conditions. Page 6 of 73 General Conditions Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 1.1.9 CHANGE ORDER REQUEST The term "Change Order Request" means a proposal for a Change Order submitted by the Design Build Entity to CMWD, either at the request of CMWD, or at the Design Build Entity's own initiative. 1.1.10 CITY The term "City" refers to the City of Carlsbad, Carlsbad, which is the municipality in which the Project is located. 1.1.11 CLAIM See Article 4.3 of the General Conditions. 1.1.12 CMWD The term "CMWD" means, Carlsbad Municipal Water District, the Owner of the Project. 1.1.13 CMWD'S REPRESENTATIVE The term "CMWD's Representative" means the person or firm identified as such in the Agreement. 1.1.14 CMWD'S RESPONSIBLE ADMINISTRATOR The term "CMWD's Responsible Administrator" means the person, or his or her authorized designee, who is authorized to execute Change Orders, Field Orders, and other applicable Contract Documents on behalf of CMWD. 1.1.15 COMPENSABLE DELAY The term "Compensable Delay" means a delay that entitles the Design Build Entity to an adjustment of the Contract Sum and an adjustment of the Contract Time pursuant to Articles 7 and 8 of the General Conditions. 1.1.16 CONSTRUCTION DOCUMENTS The term "Construction Documents" means the plans and specifications prepared by the Design Build Entity for the Project, approved by CMWD. The Construction Documents shall set forth in detail all items necessary to complete the construction (other than such details customarily provided by others during construction) of the Project in accordance with the Contract Documents (subject to their completion following commencement of the construction). All amendments and modifications to the Plans and Specifications must be approved by CMWD in writing. 1.1.17 CONSTRUCTION WORK The term "Construction Work" means that portion of the Work consisting of the provision of labor, materials, furnishings, equipment and services in connection with the construction of the Project as set forth in the Contract Documents. 1.1.18 CONTRACT The term "Contract" shall have the meaning identified in Article 3 of the Agreement. 1.1.19 CONTRACT DOCUMENTS The term "Contract Documents" means all documents listed in Article 3 of the Agreement. 1.1.20 CONTRACT MILESTONE The term "Contract Milestone" means any requirement in the Contract Documents that reflects a planned point in time for the start or completion of a portion of the Work measured from i) the date of any ofthe Notices to Proceed or ii) the date of another Contract Milestone defined in the Contract Documents, as applicable. Page 7 of 73 General Conditions {earls bad Municipal Water District Palm Grove Removal and Native Plant Restoration Project No. 3821 1.1.21 CONTRACTSCHEDULE The term "Contract Schedule" means the graphical representation of a practical plan, in accordance with the Specifications, to perform and complete the Work within the Contract Time. The detailed requirements for the Contract Schedule are stated in Article 3 of the General Conditions. 1.1.22 CONTRACTSUM The term "Contract Sum" means the amount of compensation stated in Article 4 of the Agreement for the performance of the Work, as adjusted by Change Order. 1.1.23 CONTRACTTIME The term "Contract Time" means the number of days set forth in Article 5 of the Agreement within which Design Build Entity must achieve Final Completion of the Work, as adjusted by Change Order. 1.1.24 COST OF EXTRA WORK See Article 7.3 of the General Conditions. 1.1.25 CALAVERA PALM GROVE REMOVAL AND NATIVE PLANT RESTORATION The term "Calavera Palm Grove Removal and Native Plant Restoration" means the three locations identified on the Revegetation Plan at the Calavera Preserve, Carlsbad, CA 92011. 1.1.26 DAY The term "day," as used in the Contract Documents, shall mean calendar day, unless otherwise specifically provided. 1.1.27 DEFECTIVE WORK The term "Defective Work" means Work that is unsatisfactory, faulty, omitted, incomplete, deficient, or does not conform to the requirements of the Contract Documents, directives of CMWD's Representative, or the requirements of any inspection, reference standard, test, or approval specified in the Contract Documents. 1.1.28 DESIGN BUILD ENTITY The term "Design Build Entity" means the person or firm identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. Design Builder and Design Build Entity are used interchangeably. 1.1.29 DESIGN BUILDER The term "Design Builder" means the person or firm identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. Design Builder and Design Build Entity are used interchangeably. 1.1.30 DESIGN BUILDER FEE See Article 7 .3 of the General Conditions. 1.1.31 DESIGN MATERIALS The term "Design Materials" shall mean any and all documents, shop drawings, electronic information, including computer programs and computer generated materials, data, plans, drawings, sketches, illustrations, specifications, descriptions, models and other information developed, prepared, furnished, delivered or required to be delivered by, or for, the Design Build Entity: (1) to CMWD under the Contract Documents; or (2) developed or prepared by or for the Design Build Entity specifically to discharge its duties under the Contract Documents. Page 8 of 73 General Conditions Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 1.1.32 DESIGN PROFESSIONAL The term "Design Professional" shall mean individuals or entities that will provide Design Build Entity with the required architectural, engineering, and other professional services required for the coordinated design of the Project and the administration of construction. 1.1.33 DESIGN WORK The term "Design Work" shall mean the portion of the Work consisting of the design services and design deliverables required to be provided in connection with the design of the Project as set forth in the Contract Documents. 1.1.34 DRAWINGS The term "Drawings" means the graphic and pictorial portions of the Contract Documents showing the design, location, and dimensions of the Work, generally including plans, elevations, sections, details, schedules, and diagrams. The Drawings are listed in the List of Drawings. 1.1.35 EQUIPMENT MANUFACTURER The term "Equipment Manufacturer" shall mean any Separate Contractor that fabricates and/or supplies any CMWD-provided equipment which is installed in the Project by the Design Build Entity. 1.1.36 EXCUSABLE DELAY The term "Excusable Delay" means a delay that entitles the Design Build Entity to an adjustment of the Contract Time but not an adjustment ofthe Contract Sum, pursuant to Articles 7 and 8 of the General Conditions. 1.1.37 EXTRA WORK The term "Extra Work" means Work beyond or in addition to the Work required by the Contract Documents. 1.1.38 FIELD ORDER See Article 7 .4 of the General Conditions. 1.1.39 FINAL COMPLETION The term "Final Completion" means the Work has been fully completed in accordance with the requirements of the Contract Documents pursuant to Article 9.8 of the General Conditions. 1.1.40 FINAL COMPLETION DATE The term "Final Completion Date" means the date when Final Completion is achieved in accordance with the requirements of the Contract Documents pursuant to Article 9.8 of the General Conditions. 1.1.41 FRAGNETSCHEDULE See Article 3.16 of the General Conditions. 1.1.42 GUARANTEE TO REPAIR PERIOD See Article 12.2 of the General Conditions. 1.1.43 GUARANTEED MAXIMUM PRICE The term "Guaranteed Maximum Price" means the not-to-exceed price for which the Design Build Entity agrees and guarantees it will complete all Work on the Project in accordance with the requirements of the Contract Documents. As defined in Articles 2 and 6, the Design Build Entity will submit its Guaranteed Maximum Price at the end of Phase 1 following completion of the 60 percent design. Page 9 of 73 General Conditions (earls bad Municipal Water District Palm Grove Removal and Native Plant Restoration Project No. 3821 1.1.44 GOVERNMENTALAPPROVALS The term "Governmental Approvals" means those governmental (including CMWD} actions required to be obtained by CMWD and necessary for the completion of the Project. 1.1.45 HAZARDOUS MATERIAL The term "Hazardous Material" means any substance or material identified as hazardous under any California or federal statute governing handling, disposal and/or cleanup of any such substance or material. 1.1.46 INDEMNIFIED PARTIES The term "Indemnified Parties" means CMWD, its agents, officers, representatives, consultants, volunteers and employees. 1.1.47 INEXCUSABLE DELAY The term "Inexcusable Delay" means a delay that does not entitle the Design Build Entity to an adjustment of the Contract Sum and does not entitle the Design Build Entity to an adjustment of the Contract Time. 1.1.48 NOTICE TO PROCEED See 1.1.51 and 1.1.52. 1.1.49 OPTIONS See Article 2 of the Agreement. 1.1.50 PHASES See Articles 1, 2 and 5 of the Agreement 1.1.51 PHASE 1 NOTICE TO PROCEED The term "Phase 1 Notice to Proceed" means the written notice given by CMWD to the Design Build Entity advising that the Design Build Entity is to commence Phase 1 of the Project. 1.1.52 PHASE 2 NOTICE TO PROCEED The term "Phase 2 Notice to Proceed" means the written notice given by CMWD to the Design Build Entity advising that the Site is available to the Design Build Entity and directing the Design Build Entity to commence Phase 2 of the Project. 1.1.53 PRELIMINARY DRAWINGS The term ((Preliminary Drawings" means the Preliminary Drawings completed in LSA Associates under contract to CMWD. 1.1.54 PROJECT The term ((Project" means the total design and construction of the Work under the Contract and all other work, labor, equipment, and materials necessary to accomplish the Project. The Project may include design or construction work performed by CMWD or by Separate Contractors. 1.1.55 SCHEDULED FINAL COMPLETION DATE The tern ((Scheduled Final Completion Date" means the date listed in Article 5.3.3 of the Agreement which Design Build Entity agrees to achieve Final Completion in accordance with the Contract Documents. 1.1.56 SCHEDULED SUBSTANTIAL COMPLETION DATE Page 10 of 73 General Conditions (earls bad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 The tern "Scheduled Substantial Completion Date" means the date listed in Article 5.3.1 of the Agreement which Design Build Entity agrees to achieve Substantial Completion in accordance with the Contract Documents. 1.1.57 SEPARATE CONTRACTOR The term "Separate Contractor" means a person, or firm, under separate contract with CMWD performing other work related to the Project. 1.1.58 SHOP DRAWINGS, PRODUCT DATA, AND SAMPLES See Article 3.19 of the General Conditions. 1.1.59 SPECIFICATIONS The term "Specifications" means that portion of the Contract Documents consisting of the written requirements for materials, equipment, construction systems, standards and workmanship for the Work, and performance of related services. 1.1.60 SUBCONTRACTOR The term "Subcontractor" means a person or firm that has a contract with Design Build Entity or with a Subcontractor of the Design Build Entity to perform a portion of the Work. Unless otherwise specifically provided, the term Subcontractor includes Subcontractors of all tiers. 1.1.61 SUBSTANTIAL COMPLETION See Article 9.7 of the General Conditions. 1.1.62 SUBSTANTIAL COMPLETION DATE The term "Substantial Completion Date" means the date when Substantial Completion is achieved in accordance with the requirements of the Contract Documents pursuant to Article 9.7 of the General Conditions. 1.1.63 SUPERINTENDENT The term "Superintendent" means the person designated by Design Build Entity to represent Design Build Entity at the Project site, in accordance with Article 3 of the General Conditions. 1.1.64 TIER The term "tier" means the contractual level of a Subcontractor or supplier or consultant with respect to Design Build Entity. For example, a first-tier Subcontractor is under subcontract with Design Build Entity, a second-tier Subcontractor is under subcontract with a first-tier Subcontractor, and so forth. 1.1.65 TOTAL PROJECT COST The term "Total Project Cost" means the amount identified as such in the Request for Proposals. 1.1.66 UNILATERAL CHANGE ORDER See Article 7.2 of the General Conditions. 1.1.67 WORK The term "Work" means all labor, materials, equipment, tools, and services, including Design Professional services, and other requirements of the Contract Documents as modified by Change Order, whether completed or partially completed, provided or to be provided by Design Build Entity to fulfill Design Build Entity's obligations . The Work may constitute the whole or a part of the Project. 1.2 OWNERSHIP AND USE OF CONTRACT DOCUMENTS Page 11 of 73 General Conditions {earls bad Municipal Water District Palm Grove Removal and Native Plant Restoration Project No. 3821 1.2.1. The Contract Documents, and all copies thereof, furnished to, or provided by, Design Build Entity are the property of CMWD. CMWD and Design Build Entity explicitly agree that all materials, electronic files/models, and documents developed in the performance of this Contract are the property of CMWD. CMWD shall have the right to use all drawings, designs, specifications, notes and any other documentation and other work developed in the performance of this Contract for the Project, or in connection with the Project, including without limitation future additions, alterations, connections, repairs, information, reference, use or occupancy and the right to re-use details of the design on any other CMWD work, all without the Design Build Entity's consent and at no additional cost to CMWD. 1.2.2 CMWD will defend, indemnify and save harmless Design Build Entity Professional, its officers, agents and employees from any costs or claims for damages arising from CMWD's use on other projects of the Contract Documents, the Drawings and Specifications, or the designs depicted in them, if any of the foregoing have been provided to CMWD by the Design Build Entity. 1.2.3 Notwithstanding Article 1.2.2 above, CMWD will not defend, indemnify or save harmless Design Build Entity Professional, its officers, agents, or employees from any costs or claims asserted or imposed by any person or entity claiming that CMWD's use of the Contract Documents, the Drawings and Specifications, or the designs depicted in them is contrary to or in violation of any copyright, patent, trade secret, trade name, trademark, or any proprietary, contractual or legal right pertaining to their use. 1.3 INTERPRETATION 1.3.1 Design Build Entity and CMWD, prior to the Contract Date, shall carefully review all the Contract Documents, including the Appendices, Exhibits and Schedules, for any conflicts or ambiguities. DB Contractor and CMWD will discuss and resolve any identified conflicts or ambiguities prior to the Contract Date. 1.3.2 The intent of the Contract Documents is to include all necessary criteria to establish the scope and quality for completion of the Work by the Design Build Entity. The Contract Documents are complementary and what is required by one shall be as binding as if required by all. Performance by the Design Build Entity shall be required to the extent consistent with, and reasonably inferable from, the Contract Documents. 1.3.3 CMWD and Design Build Entity acknowledge that the Contract Documents may differ in some respect(s) from the other documents included in the Proposal Documents upon which the Design Build Entity based its response(s) to the Request for Proposals. CMWD and Design Build Entity explicitly agree that documents having the higher quality, or more stringent, requirements shall govern over any conflicting requirements of other documents. 1.3.4 Notwithstanding Article 1.3.3 above, in the case of conflict between terms of the Contract Documents, the following order of precedence shall apply: .1 The Agreement and Change Orders shall control over the General Conditions . . 2 The General Conditions shall control over the Appendices . . 3 The Appendices shall control over the Schedules . .4 In the case of Constructability Review Comments, CMWD Design Standards, and other CMWD Provided Information provided for the Design Builder's reference, these details shall govern over Page 12 of 73 General Conditions {earls bad Municipal Water District Palm Grove Removal and Native Plant Restoration Project No. 3821 the plans and specifications . . 5 Where no order of precedence is stated, the more expensive of the requirements shown or specified shall be controlling . . 6 With respect to the Contract Documents, Addenda shall govern over other portions of the Contract Documents to the extent specifically noted; subsequent Addenda shall govern over prior Addenda only to the extent specifically noted. 1.3.5 Unless otherwise stated in the Contract Documents, technical words and abbreviations contained in the Contract Documents are used in accordance with commonly understood design professional and construction industry meanings; and non-technical words and abbreviations are used in accordance with their commonly understood meanings. 1.3.6 The Contract Documents may omit modifying words such as "all" and "any," and articles such as "the" and "an," but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. The use of the word "including," when following any general statement, shall not be construed to limit such statement to specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as "without limitation," "but not limited to," or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of such general statement. 1.3.7 Whenever the context so requires, the use of the singular number shall be deemed to include the plural and vice versa. Each gender shall be deemed to include any other gender, and each shall include corporation, partnership, trust, or other legal entity, whenever the context so requires. The captions and headings of the various subdivisions of the Contract Documents are intended only for reference and convenience and in no way define, limit, or prescribe the scope or intent of the Contract Documents or any subdivision thereof. 1.3.8 The Contract Documents form the entire agreement between CWMD and the Design Build Entity and by incorporation herein are as fully binding on the parties as if repeated herein. No oral representations or other agreements have been made by the parties except as specifically stated in the Contract Documents. ARTICLE 2 CMWD 2.1 FEE AND PERMIT REQUIREMENTS 2.1.1 Except as otherwise provided in the Contract Documents, CMWD will pay for any City-issued permits including building, haul route, right-of-way, or encroachment permits that may be required to complete the Project. 2.1.2 Design Build Entity will be furnished, free of charge, such copies of the Contract Documents as CMWD deems reasonably necessary for execution of the Work. Page 13 of 73 General Conditions Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 2.2 ACCESS TO PROJECT SITE 2.2.1 CMWD will provide, as reasonably required by the Work, but in no event later than the date designated in the Construction Notice to Proceed, access to the lands and facilities upon which the construction Work is to be performed, including such access to other lands and facilities designated in the Contract Documents for use by Design Build Entity. 2.3 CMWD'S RIGHT TO STOP THE WORK 2.3.1 If Design Build Entity fails to correct Defective Work as required by Article 12.2 of the General Conditions or fails to perform the Work in accordance with the Contract Documents, CMWD or CMWD's Representative may direct Design Build Entity to stop the Work, or any portion thereof, until the cause for such order has been eliminated by Design Build Entity. Design Build Entity shall not be entitled to any adjustment of Contract Time or Contract Sum as a result of any such order. CMWD and CMWD's Representative have no duty or responsibility to Design Build Entity or any other party to exercise the right to stop the Work. 2.4 CMWD'S RIGHT TO CARRY OUT THE WORK 2.4.1 If Design Build Entity fails to carry out the Work in accordance with the Contract Documents, fails to provide sufficient labor, materials, equipment, tools, and services, with respect to either the design or construction phases, to maintain the Contract Schedule, or otherwise fails to comply with any material term of the Contract Documents, and, after receipt of written notice from CMWD, fails within 2 days, excluding Saturdays, Sundays and legal holidays, or within such additional time as CMWD may specify, to correct such failure, CMWD may, without prejudice to other remedies CMWD may have, correct such failure at Design Build Entity's expense. In such case, CMWD will be entitled to deduct from payments then or thereafter due Design Build Entity the cost of correcting such failure, including without limitation compensation for the additional services and expenses of CMWD's consultants made necessary thereby. If payments then or thereafter due Design Build Entity are not sufficient to cover such amounts, Design Build Entity shall pay the additional amount to CMWD. 2.5 CMWD'S RIGHT TO REPLACE CMWD'S REPRESENTATIVE 2.5.1 CMWD may at any time and from time to time, without prior notice to or approval of Design Build Entity, replace CMWD's Representative with a new CMWD Representative. Upon receipt of notice from CMWD informing Design Build Entity of such replacement and identifying the new CMWD's Representative, Design Build Entity shall recognize such person or firm as CMWD's Representative for all purposes under the Contract Documents. ARTICLE 3 DESIGN BUILDER 3.1 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY DESIGN BUILDER; SINGLE POINT RESPONSIBILITY OF DESIGN BUILDER Page 14 of 73 General Conditions Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 3.1.1 CMWD has carefully reviewed the qualifications of the Design Builder and has concluded that the Design Builder has the necessary significant experience to perform the required Work. The Design Builder has demonstrated that they possess the necessary experience and skilled resources to perform the Work. As such, CMWD asserts that this allows for a level of competence and care in the implementation of the Work than would be allowed for a lesser qualified Design Builder. 3.1.2 In addition to the examination and reviews performed, and obligations assumed, incidental to making the representations set forth in Article 10 of the Agreement, Design Build Entity shall carefully study and compare each of the Contract Documents with the others and with information furnished by CMWD, and shall promptly report in writing to CMWD's Representative any errors, inconsistencies, or omissions in the Contract Documents or inconsistencies with Applicable Code Requirements observed by Design Build Entity. 3.1.3 Design Build Entity is responsible for the design and construction of the Project and shall provide all services pursuant to this Contract in a manner consistent with the standard of care under California law applicable to those who specialize in providing such services for projects of the type, scope, and complexity of the Project (including its contracting mode). The Design Build Entity shall be solely responsible for any and all design errors including, but without limitation, errors, inconsistencies or omissions in the Construction Documents. Design Build Entity shall take field measurements, verify field conditions, and carefully compare with the Contract Documents such field measurements, conditions, and other information known to Design Build Entity before commencing the Work. Errors, inconsistencies, or omissions discovered at any time shall be promptly reported in writing to CMWD's Representative. 3.1.4 If Design Build Entity performs any design and/or construction activity which it knows, or should know, involves an error, inconsistency, or omission referred to in Articles 3.1.2 and 3.1.3 above, without notifying and obtaining the written consent of CMWD's Representative, Design Build Entity shall be responsible for the resultant losses, including, without limitation, the costs of correcting Defective Work. 3.1.5 CMWD does not assume any obligation to employ the Design Build Entity's services or pay Design Build Entity royalties of any type as to future programs that may result from the Work performed under this Contract. 3.1.6 Design Build Entity shall be responsible for all plotting, printing, copying and distribution cost of any and all documents required in connection with the Work. 3.1.7 Design Build Entity agrees that it has the sole and exclusive responsibility and liability for the design, construction and performance of the Work hereunder, notwithstanding the Contract Standards or the fact that the RFP included certain minimum conceptual design criteria for the Work and certain performance standards that the Design Build Entity would be required to meet. The Design Build Entity acknowledges that, in the proposal and clarification process leading to the execution of this Agreement, the Design Build Entity had the unrestricted right and opportunity not to submit a proposal, and not to execute this Agreement if the Design Build Entity had determined that such minimum conceptual design criteria would in any manner or to any degree impair the Design Build Entity's ability to perform the Work in compliance herewith. 3.2 DESIGN, SUPERVISION AND CONSTRUCTION PROCEDURES 3.2.1 Design Build Entity shall supervise, coordinate, and direct the Work using Design Build Entity's best skill and attention. Design Build Entity shall be solely responsible for, and have control over, the entire design effort, construction means, methods, techniques, sequences, procedures, and the coordination of all portions Page 15 of 73 General Conditions {earls bad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 of the Work. 3.2.2 Design Build Entity shall be responsible to CMWD for acts and omissions of Design Build Entity's agents, employees, and Subcontractors, and their respective agents and employees. 3.2.3 Design Build Entity shall not be relieved of its obligation to perform the Work in accordance with the Contract Documents either by acts or omissions of CMWD or CMWD's Representative in the administration of the Contract, or by tests, inspections, or approvals required, or performed, by persons or firms other than Design Build Entity. 3.2.4 Design Build Entity shall be responsible for inspection of all portions of the Work, including those portions already performed under this Contract, to determine that such portions conform to the requirements of the Contract Documents and are ready to receive subsequent Work. CMWD or CMWD's representative may inspect and observe the Work or portions of the Work to confirm conformance with the requirements of the Contract Documents. 3.2.5 To facilitate communications and the management of the design process, the Design Build Entity shall establish and maintain a local office for the duration of the design process. 3.2.6 The Design Build Entity is not required to produce the entire Construction Documents package in the local office; however, the Design Build Entity shall provide the appropriate management and design staff in the local office to provide CMWD with the current status of, and the capability to properly update, the design and construction documents. 3.2.7 The Design Build Entity is required to deliver to CMWD, if requested, any and all design materials including, but not limited to, calculations, preliminary drawings, construction drawings, shop drawings, electronic media data, improvement documents, sketches, illustrations, specifications, descriptions, models, mock-ups, and other information developed, prepared, furnished, or delivered in the prosecution of the design work. 3.2.8 Design Build Entity shall at all times participate in, and implement, this CEQA mitigation project and ensure performance as required in the Contract Documents. 3.2.9 Design Build Entity is responsible for preparation of the Construction Documents for the entire Project. 3.2.10 Design Build Entity is responsible for construction of the entire Project as required by the Contract Documents. 3.2.11 Design Build Entity shall at all times maintain good discipline and order among its employees and subcontractors. Design Build Entity shall provide competent, fully qualified personnel to perform the Work. 3.3 LABOR AND MATERIALS Unless otherwise provided in the Contract Documents, Design Build Entity shall provide and pay for all professional services, other services, labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other things necessary for proper execution and completion of the Work, whether Page 16 of 73 General Conditions Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 temporary or permanent and whether or not incorporated or to be incorporated in the Work. 3.4 DESIGN BUILDER'S WARRANTY 3.4.1 Design Build Entity warrants to CMWD that all labor, materials, equipment and furnishings used in, or incorporated into, the Construction Work will be of good quality, new (unless otherwise required or permitted by the Contract Documents), and all Work will be free of liens, claims and security interests of third parties; that the Work will be of the highest quality and free from defects and that all Work will conform with the requirements of the Contract Documents. If required by CMWD's Representative, Design Build Entity shall furnish satisfactory evidence of compliance with this warranty. Further, the type, quality and quantum of such evidence shall be within the sole discretion of CMWD's Representative. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. 3.5 TAXES 3.5.1 Design Build Entity shall pay all sales, consumer, use, income, payroll and similar taxes for the Work or portions thereof provided by Design Build Entity. 3.6 PERMITS, FEES, AND NOTICES 3.6.1 Except for the permits and approvals which are paid for by CMWD as provided in Article 2.1.1 of the General Conditions, Design Build Entity shall secure, and pay for, all permits, approvals, government fees, licenses, and inspections necessary for the proper execution and performance of the Project. Design Build Entity shall deliver to CMWD all original licenses, permits, and approvals obtained by Design Build Entity in connection with the Work prior to the final payment or upon termination of the Contract, whichever is earlier. 3.6.2 Water Pollution Control _ The Design Build Entity shall exercise every reasonable precaution to protect channels, storm drains, and bodies of water from pollution. It shall conduct and schedule operations so as to minimize or avoid muddying and silting of said channels, drains, and waters. Water pollution control work shall consist of constructing those facilities which may be required to provide prevention, control, and abatement of water pollution. If required by law, the Design Build Entity shall comply with the California State Water Resources Control Board (SWRCB) Order Number 2009-0009-DWQ, National Pollutant Discharge Elimination System (NPDES) General Permit Number R9-2013-001, Waste Discharge Requirements (WDR's) for Discharges of Storm Water Runoff associated with Construction Activity (General Permit) and subsequent adopted modifications and with all requirements of the Storm Water Pollution Prevention and Monitoring Plans for this project in accordance with these regulations. The Design Build Entity shall prepare a Storm Water Pollution Prevention Plan (SWPPP) in compliance with the applicable general permit. The Design Build Entity shall be responsible for the preparation and implementation of the SWPPP and coordination with CMWD and the Regional Water Quality Control Board, San Diego Region. All costs for preparing and implementing the Storm Water Pollution Prevention and Monitoring Plans for this project and coordination with CMWD and the Regional Water Quality Control Board, San Diego Region shall be included as part of the Contract Sum. Page 17 of 73 General Conditions {car ls bad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 The Contract Sum shall include all work required to prepare a SWPPP for the project and inclusion of any Best Management Practices (BMPs) required by the SWPPP. Design Build Entity shall prepare and submit a Notice of Intent (NOi), if required, for CMWD to file with the State Water Resources Control Board. The Design Build Entity will provide CMWD all information necessary for the NOi within thirty (30) calendar days of receiving the Phase 2 Notice to Proceed. 3.7 APPLICABLE CODE REQUIREMENTS 3.7.1 Design Build Entity shall perform the Work in accordance with the following Applicable Code Requirements and all code requirements listed in the Contract Documents: .1 All current laws, statutes, building codes (enforced at the time of obtaining the Building Permit), ordinances, rules, regulations, and lawful orders of all public authorities having jurisdiction over CMWD, Design Build Entity, any Subcontractor, the Project, the Project site, the Work, or the prosecution of the Work . . 2 Applicable sections in the State of California Labor Code . . 3 All Applicable Code Requirements relating to nondiscrimination, payroll records, apprentices, and work day. 3.7.2 Design Build Entity shall comply with and give notices required by all Applicable Code Requirements, including all environmental laws and all notice requirements under the Clean Water Act, State of California Safe Drinking Water and Enforcement Act of 1986 (State of California Health and Safety Code Section 25249.5, and applicable sections that follow), Title 22 of the California Code of Regulations. Design Build Entity shall promptly notify CMWD's Representative in writing if Design Build Entity becomes aware during the performance of the Work that the Contract Documents are at variance with Applicable Code Requirements. 3.7.3 If Design Build Entity performs Work which it knows or should know is contrary to Applicable Code Requirements, without prior notice to CMWD and CMWD's Representative, Design Build Entity shall be responsible for such Work and any resulting damages including, without limitation, the costs of correcting Defective Work. 3.7.4 Design Builder shall give all notices and comply with all laws, ordinances, rules and regulations bearing on conduct of work as indicated and specified. If Design Builder observes that drawings and specifications are at variance therewith, he shall promptly notify the Engineer in writing and any necessary changes shall be adjusted as provided for in this Contract for changes in work. If Design Builder performs any work knowing it to be contrary to such laws, ordinances, rules and regulations, and without such notice to the Engineer, he shall bear all costs arising therefrom .1 Design Builder shall be responsible for familiarity with the Americans with Disabilities Act ("ADA") (42 u.s.c. § 12101 et seq.) and all other federal and state disability access laws. The Work will be performed in compliance with all current rules, guidelines and regulations. 3.8 SUPERINTENDENT 3.8.1 Design Build Entity shall employ a competent Superintendent satisfactory to CMWD who shall be in attendance at the Project site at all times during the performance of the Construction Work. Superintendent Page 18 of 73 General Conditions (car ls bad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 shall represent Design Build Entity and communications given to, and received from, Superintendent shall be binding on Design Build Entity. Failure to maintain a Superintendent on the Project site at all times Work is in progress shall be considered a material breach of this Contract, entitling CMWD to terminate the Contract or, alternatively, issue a stop Work order until the Superintendent is on the Project site. If, by virtue of issuance of said stop Work order, Design Build Entity fails to complete the Contract on time, Design Build Entity will be assessed Liquidated Damages in accordance with the Agreement. 3.8.2 The Superintendent approved for the Project must be able to read, write and verbally communicate in English. The Superintendent may not perform the Work of any trade, pick-up materials, or perform any Work not directly related to the supervision and coordination of the Construction Work at the Project site when Work is in progress. In addition, the Design Build Entity will provide all Key Personnel shown in the Technical Proposal for the time periods required to complete the Work. 3.9 TOXIC MATERIALS 3.9.1 The Design Build Entity is responsible for unforeseen site conditions and toxic materials to the extent described in the Contract Documents and/or that could be reasonably inferred by the Design Build Entity based on its experience and expertise on similar projects in urban areas. 3.10 HAZARDOUS MATERIALS 3.10.1 The Design Build Entity agrees that it is solely responsible for investigating and performing remedial actions on all hazardous materials and other related environmental requirements located on the Project site. For the purposes of this Contract, Hazardous Materials shall also include, but are not limited to, Underground storage tanks. Any Hazardous Materials that are encountered beyond those described in the Contract Documents or Proposal Documents, or which reasonably could not have been discovered within the time permitted, may properly be the subject of a Change Order Request. CMWD agrees that the Design Build Entity cannot be considered a hazardous materials generator of any such materials in existence on the Site at the time it is given possession of the Site. "Underground Storage Tank" shall have the definition assigned to that term by Section 9001 of RCRA, 42 U.S.C. Section 6991, and also shall include: any tank of one thousand one hundred (1,100) gallons or less capacity used for storing motor fuel; any tank used for storing heating oil for consumption on the premises where stored; any septic tank; and any pipes connected to the above items. 3.10.2 CMWD shall not be responsible for any Hazardous Material brought to the site by the Design Build Entity. If the Design Build Entity: (i) introduces and/or discharges a Hazardous Material onto the site in a manner not specified by the Contract Documents; and/or (ii) disturbs a Hazardous Material identified in the Contract Documents, the Design Build Entity shall hire a qualified remediation Design Builder at Design Build Entity's sole cost to eliminate the condition as soon as possible. Under no circumstance shall the Design Build Entity perform Work for which it is not qualified. CMWD, in its sole discretion, may require the Design Build Entity to retain at Design Build Entity's cost an independent testing laboratory. 3.10.3 If the Design Build Entity encounters a Hazardous Material which may cause foreseeable injury or damage, Design Build Entity shall immediately: (i) secure or otherwise isolate such condition; (ii) stop all Work in connection with such material or substance (except in an emergency situation); and (iii) notify CMWD (and promptly thereafter confirm such notice in writing). 3.10.4 Subject to Design Build Entity's compliance with Article 3.10.4, CMWD shall verify the presence or absence of the Hazardous Material reported by the Design Build Entity, except as qualified under Section 3.10.2 Page 19 of 73 General Conditions arlsbad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 and 3.10.4, and, in the event such material or substance is found to be present, verify that the levels of the hazardous material are below OSHA Permissible Exposure Levels and below levels which would classify the material as a state of California or federal hazardous waste. When the material falls below such levels, Work in the affected area shall resume upon direction by CMWD. The Contract Time and Sum shall be extended appropriately as provided in Articles 7 and 8. 3.10.5 CMWD shall indemnify and hold harmless the Design Build Entity from and against claims, damages, losses and expenses, arising from a Hazardous Material on the Project site, if such Hazardous Material: (i) was not shown on the Contract Documents or Information Available to Bidders; (ii) was not brought to the site by Design Build Entity; and (iii) exceeded OSHA Permissible Exposure Levels or levels which would classify the material as a state of California or federal hazardous waste. The indemnity obligation in this Article shall not apply to: .1 Claims, damages, losses or expenses arising from the breach of contract, negligence or willful misconduct of Design Build Entity, its suppliers, its Subcontractors of all tiers and/or any persons or entities working under Design Build Entity; and .2 Claims, damages, losses or expenses arising from a Hazardous Material subject to Article 3.10.2. 3.10.6 In addition to the requirements in Article 3.28, Design Build Entity shall indemnify and hold harmless CMWD from and against claims, damages, losses and expenses, arising from a Hazardous Material on the Project site, if such Hazardous Material: (i) was shown on the Contract Documents or Information Available to Bidders; (ii) was brought to the site by Design Build Entity; and (iii) exceeded OSHA Permissible Exposure Levels or levels which would classify the material as a state of California or federal hazardous waste. Nothing in this paragraph shall obligate the Design Build Entity to indemnify CMWD in the event of the sole negligence of CMWD, its officers, agents, or employees. 3.11 CONSTRUCTION DOCUMENTS 3.11.1 Construction Documents .1 Upon receipt of the Notice to Proceed for Phase 1, the Design Build Entity shall instruct the Design Team to commence the design and the preparation of the Construction Documents in accordance with the Contract Documents. The Construction Documents shall provide information customarily necessary in documents for projects of similar size, complexity, and quality. The Construction Documents shall include all information required by the building trades to complete the construction of the Project, other than such details customarily developed by others during construction. CMWD's review of the construction documents shall be conducted in accordance with the approved Contract Schedule with procedures set forth in Article 3.16 of the General Conditions relating to Schedule. Such review shall not relieve the Design Build Entity from its responsibilities under this Contract. Such review shall not be deemed an approval or waiver by CMWD of any deviation from, or of the Design Build Entity's failure to comply with, any provision or requirement of the Contract Documents, unless such deviation or failure has been identified as such in writing in the document submitted by the Design Build Entity and approved byCMWD. It is acknowledged by the parties hereto that inherent in a design build concept, bridging or otherwise, the production and review of Construction Documents may be a continuing process with portions thereof completed at different times. Page 20 of 73 General Conditions (earls bad Municipal Water District Palm Grove Removal and Native Plant Restoration Project No. 3821 .2 The Design Build Entity shall submit completed packages of the Construction Documents for review by CMWD in accordance with the Contract Documents . . 3 The Construction Documents for hazardous and/or toxic abatement efforts and demolition activity shall be of sufficient clarity and shall be fully detailed when submitted to CMWD for review. 3.11.2 Survey .1 The Design Build Entity shall retain and pay expenses of a civil engineer or land surveyor to establish on the Site the required reference points and benchmarks, establish building lines and elevations, check for building framing, plumbness, and establish the required basic grid lines. The engineer or land surveyor shall be licensed in the State of California . . 2 The Design Build Entity shall locate and protect control points prior to starting Work on the Project site and preserve permanent reference points during construction, and shall require the engineer or surveyor to replace control points which become lost or destroyed. 3.12 MONTHLY REPORTS 3.12.1 In accordance with the Contract Documents, the Design Build Entity shall prepare and submit to CMWD, during both Phase 1 and Phase 2, monthly reports on the Work accomplished during the prior monthly period. Such reports shall be prepared in a manner and in a format approved by CMWD. Reports shall be furnished at the time of submission of each monthly application for payment. The monthly report shall also set forth the Design Build Entity's projected progress for the forthcoming month. 3.13 OTHER REPORTS 3.13.1 The Design Build Entity will cooperate with CMWD in preparing, or causing to be prepared, all or part of, periodic project reports required by state or federal agencies. 3.14 NOTICES OF LABOR DISPUTE 3.14.1 If Design Build Entity has knowledge that any actual or potential labor dispute is delaying, or threatens to delay, the timely performance of the Work, Design Build Entity shall immediately give notice including all relevant information to CMWD. 3.14.2 Design Build Entity agrees to insert the substance of this Article including this Article 3.14.2, in any subcontract to which a labor dispute may delay the timely performance of the Work, except that each subcontract shall provide that in the event its timely performance is delayed or threatened by delay by any actual or potential labor dispute, the subcontractor shall immediately notify the next higher tier subcontractor or Design Build Entity, as the case may be, of all relevant information concerning the dispute. 3.15 GUARANTEE 3.15.1 The Design Build Entity unconditionally guarantees the Work will be completed in accordance with the requirements of the Contract Documents, and will remain free of defects in workmanship and materials for a Page 21 of 73 General Conditions (earls bad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 period of one year from the date of Final Completion, unless a longer guarantee period is specifically called for in the Contract Documents. The Design Build Entity shall repair or replace any and all work, together with any adjacent work that may have been damaged or displaced, which was not in accordance with the requirements of the Contract Documents, or that may be defective in its workmanship or material within the guarantee period specified in the Contract Documents, without any expense whatsoever to CMWD; ordinary wear and tear and abuse excepted. 3.15.2 The Design Build Entity further agrees, within fourteen (14) days, or as such shorter period as may be designated for emergency repairs, after being notified in writing by CMWD, of any work not in accordance with the requirements of the Contract Documents or any defects in the Work, that the Design Build Entity shall commence and execute, with due diligence, all work necessary to fulfill the terms of the guarantee. If CMWD finds that the Design Build Entity fails to perform any of the work under the guarantee, CMWD may elect to have the work completed at the Design Build Entity's expense and the Design Build Entity will pay costs of the work upon demand. CMWD will be entitled to all costs, including reasonable attorneys' fees and consultants' expenses necessarily incurred upon the Design Build Entity's refusal to pay the above costs. 3.15.3 Notwithstanding the foregoing Article 3.15.2, in the event of an emergency constituting an immediate hazard to health or safety of CMWD employees, property, or licensees, CMWD may undertake, at the Design Build Entity's expense and without prior notice, all work necessary to correct such hazardous condition(s) when it is caused by work of the Design Build Entity not being in accordance with the requirements of the Contract Documents. 3.16 SCHEDULES REQUIRED OF DESIGN BUILDER 3.16.1 In accordance with the Contract Documents, Design Build Entity shall submit an initial Contract Schedule and updated Contract Schedules to CMWD's Representative in the form and within the time limits required by the Contract Documents, or, if no such time period is specified, within a reasonable period of time. CMWD's Representative will determine acceptability of the Contract Schedule and updated Contract Schedules within the time limits required by the Contract Documents, or if no such time period is specified, within a reasonable period of time. If CMWD's Representative deems the Contract Schedule or updated Contract Schedule unacceptable, it shall specify in writing to Design Build Entity the basis for its objection. 3.16.2 The Contract Schedule and updated Contract Schedules shall represent a practical plan to complete the Work within the Contract Time. Schedules showing the Work completed in less than the Contract Time may be acceptable if judged by CMWD's Representative to be practical. Schedules showing the Work completed beyond the Contract Time may be submitted under the following circumstances: .1 If accompanied by a Change Order Request seeking an adjustment of the Contract Time consistent the requirements of paragraph 8.4 for Adjustment of the Contract Time for Delay; or .2 If the Contract Time has passed, or if it is a practical impossibility to complete the Work within the Contract Time, then the updated Contract Schedule or Fragnet schedule shall show completion at the earliest practical date. 3.16.3 CMWD's Representative will timely review the updated Contract Schedule or Fragnet Schedule submitted by Design Build Entity. If CMWD's Representative determines that additional supporting data are necessary to fully evaluate the updated Contract Schedule or Fragnet Schedule, CMWD's Representative will Page 22 of 73 General Conditions {car ls bad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 request such additional supporting data in writing. Such data shall be furnished no later than 10 days after the date of such request. CMWD's Representative will render a decision promptly and in any case within 30 days after the later of the receipt of the updated Contract Schedule or Fragnet Schedule or the deadline for furnishing such additional supporting data. Failure of CMWD's Representative to render a decision by the applicable deadline will be deemed a decision denying approval of the updated Contract Schedule or Fragnet Schedule. Acceptance of any schedule showing completion beyond the Contract Time by CMWD's Representative shall not change the Contract Time and is without prejudice to any right of CMWD. The Contract Time, not the Contract Schedule, shall control in the determination of liquidated damages payable by Design Build Entity under Article 5 and Article 6 of the Agreement and in the determination of any delay under Article 8 of the General Conditions. 3.16.4 If a Contract Schedule showing the Work completed in less than the Contract Time is accepted, Design Build Entity shall not be entitled to extensions of the Contract Time for Excusable Delays or Compensable Delays or to adjustments of the Contract Sum for Compensable Delays until such delays extend the Final Completion of the Work beyond the expiration of the Contract Time. 3.16.5 Design Build Entity shall prepare and keep current, to the reasonable satisfaction of CMWD's Representative, a schedule of submittals and that is coordinated with the Contract Schedule. 3.16.6 The Contract Schedule and the updated Contract Schedules shall meet the following requirements: .1 Schedules must be suitable for monitoring progress of the Work . . 2 Schedules must provide necessary data about the timing of CMWD decisions and CMWD furnished items . . 3 Schedules must be in sufficient detail to demonstrate adequate planning of the Work . .4 Schedules must represent a practical plan to perform and complete the Work within the Contract Time. 3.16.7 CMWD's Representative's review of the form and general content of the Contract Schedule and updated Contract Schedules is for the purpose of determining if the above-listed requirements have been satisfied. 3.16.8 Design Build Entity shall plan, develop, supervise, control, and coordinate the performance of the Work so that its progress and the sequence and timing of Work will permit its completion within the Contract Time, any Contract milestones and any Contract phases. 3.16.9 In preparing the Preliminary Contract Schedule, the Contract Schedule, and updated Contract Schedules, Design Build Entity shall obtain such information and data from Subcontractors as may be required to develop a reasonable and appropriate schedule for performance of the work and shall provide such information and data to CMWD's Representative upon request. Design Build Entity shall continuously obtain from Subcontractors information and data about the planning for, and progress of, the Work and the delivery of equipment, shall coordinate and integrate such information and data into updated Contract Schedules, as appropriate, and shall monitor the progress of the Work and the delivery of equipment. 3.16.10 Design Build Entity shall act as the expediter of potential and actual delays, interruptions, hindrances, or disruptions for its own forces and those forces of Subcontractors, regardless of tier. Page 23 of 73 General Conditions {earls bad Municipal Water District Palm Grove Removal and Native Plant Restoration Project No. 3821 3.16.11 Design Build Entity shall cooperate with CMWD's Representative in the development of the Contract Schedule and updated Contract Schedules. Design Build Entity shall plan and schedule all of its Work based on the assumption that CMWD will exercise its Option for Phase 2 within 30 days of the completion of Phase 1 unless otherwise directed in writing by CMWD. After CMWD exercises its Option for Phase 2, the Design Build Entity shall modify its Contract Schedule to reflect the actual date that CMWD exercises its Option for Phase 2. 3.16.12 CMWD's Representative's acceptance of or its review comments about any schedule or scheduling data shall not relieve Design Build Entity from its sole responsibility to plan for, perform, and complete the Work within the Contract Time. Acceptance of or review comments about any schedule shall not transfer responsibility for any schedule to CMWD's Representative or CMWD nor imply their agreement with {1) any assumption upon which such schedule is based or {2) any matter underlying or contained in such schedule. Failure of CMWD's Representative to discover errors or omissions in schedules that it has reviewed, or to inform Design Build Entity that Design Build Entity, Subcontractors, or others are behind schedule, or to direct or enforce procedures for complying with the Contract Schedule shall not relieve Design Build Entity from its sole responsibility to perform and complete the Work within the Contract Time and shall not be a cause for an adjustment of the Contract Time or the Contract Sum. 3.17 AS-BUILT DOCUMENTS 3.17.1 Design Build Entity shall maintain one (1) set of As-built drawings and specifications, which shall be kept up-to-date during the Work of the Contract. Notations shall reflect the actual materials, equipment and installation methods used for the Work; each revision shall be initialed and dated by Superintendent. Prior to filing of the Notice of Completion, each drawing and the specification cover shall be signed by Design Build Entity and dated, attesting to the completeness of the information noted therein. As-built Documents shall be turned over to CMWD's Representative and shall become part of the Record Documents as required by the Contract Documents. 3.18 DOCUMENTS AND SAMPLES AT PROJECT SITE 3.18.1 Design Build Entity shall maintain the following at the Project site: .1 One as-built copy of the Contract Documents, in good order and marked to record current changes and selections made during construction . . 2 The current accepted Contract Schedule . . 3 Shop Drawings, Product Data, and Samples . .4 All other required submittals. These documents shall be available to CMWD's Representative and shall be delivered to CMWD's Representative for submittal to CMWD upon the earlier of Final Completion or termination of the Contract. 3.19 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES 3.19.1 Definitions: Page 24 of 73 General Conditions (earls bad Municipal Water District Palm Grove Removal and Native Plant Restoration Project No. 3821 .1 Shop Drawings are drawings (physical or electronic), diagrams, schedules, and other data specially prepared for the Work by Design Build Entity or a Subcontractor to illustrate some portion of the Work . . 2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams, and other information furnished by Design Build Entity to illustrate or describe materials or equipment for some portion of the Work . . 3 Samples are physical examples that illustrate materials, equipment, or workmanship and establish standards by which the Work will be judged. 3.19.2 Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. Their purpose is to demonstrate, for those portions of the Work for which submittals are required, how Design Build Entity proposes to conform to the information given and the design concept expressed in the Contract Documents. 3.19.3 Design Build Entity shall review, approve, and submit to CMWD's Representative Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of CMWD or of Separate Contractors. Submittals made by Design Build Entity that are not required by the Contract Documents may be returned without action by CMWD's Representative. 3.19.4 Design Build Entity shall perform no portion of the Work requiring submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the respective submittal has been reviewed by CMWD's Representative and no exceptions have been taken by CMWD's Representative or CMWD's Representative's Consultants. Such Work shall be in accordance with approved submittals and the Contract Documents. 3.19.5 By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, Design Build Entity represents that it has determined or verified materials and field measurements and conditions related thereto, and that it has checked and coordinated the information contained within such submittals with the requirements of the Contract. 3.19.6 If Design Build Entity discovers any conflicts, omissions, or errors in Shop Drawings or other submittals, Design Build Entity shall notify CMWD's Representative and receive instruction before proceeding with the affected Work. Design Build 3.19.7 Design Build Entity shall not be relieved of responsibility for deviations from requirements of the Contract Documents by CMWD's Representative's review of Shop Drawings, Product Data, Samples or similar submittals, unless Design Build Entity has specifically informed CMWD's Representative in writing of such deviation at the time of submittal and CMWD's Representative has given written approval of the specific deviation. Design Build Entity shall not be relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples or similar submittals by CMWD's Representative's review, acceptance, comment, or approval thereof. 3.20 USE OF SITE AND CLEAN UP Page 25 of 73 General Conditions (earls bad Municipal Water District Palm Grove Removal and Native Plant Restoration Project No. 3821 3.20.1 Design Build Entity shall confine operations at the Project site to areas permitted by law, ordinances, permits, and the Contract Documents. Design Build Entity shall not unreasonably encumber the Project site with materials or equipment. 3.20.2 Design Build Entity shall, during performance of the Work, keep the Project site and surrounding area free from the accumulation of excess dirt, waste materials, and rubbish caused by Design Build Entity. Design Build Entity shall remove all excess dirt, waste material,· and rubbish caused by the Design Build Entity; tools; equipment; machinery; and surplus materials from the Project site and surrounding area at the completion of the Work. Failure to maintain the site may cause CMWD to give the Design Builder notice of this fact. Upon such notice, the Design Builder must remedy the situation within 24 hours of receipt of the notice. The Design Builder's failure to comply may cause CMWD to perform the work at the Design Builder's cost. 3.20.3 Personnel of Design Build Entity and Subcontractors shall not occupy, live upon, or otherwise make use of the Project site during any time that Work is not being performed at the Project site, except as otherwise provided in the Contract Documents. 3.21 PROJECT SITE MAINTENANCE. 3.21.1 Cleanup and Dust Control. Throughout all phases of construction, including suspension of work, and until the final acceptance, the Design Builder shall keep the site clean and free from rubbish and debris. The Design Builder shall also abate dust nuisance by cleaning, sweeping and sprinkling with water, or other means as necessary. The use of water resulting in mud on public streets will not be permitted as a substitute for sweeping or other methods. When required by the Plans or Specifications, the Design Builder shall furnish and operate a self-loading motor sweeper with spray nozzles at least once each working day for the purpose of keeping paved areas acceptably clean wherever construction, including restoration, is incomplete. Materials and equipment shall be removed from the site as soon as they are no longer necessary. Before the final inspection, the site shall be cleared of equipment, unused materials, and rubbish so as to present a satisfactory clean and neat appearance. All cleanup costs shall be included in the Design Builder's Bid. Care shall be taken to prevent spillage on haul routes. Any such spillage shall be removed immediately and the area cleaned. Excess excavation material from catch basins or similar structures shall be removed from the site immediately. Sufficient material may remain for use as backfill if permitted by the Specifications. Forms and form lumber shall be removed from the site as soon as practicable after stripping. Failure of the Design Builder to comply with the Engineer's cleanup orders may result in an order to suspend work until the condition is corrected. No additional compensation will be allowed as a result of such suspension. Cleanup and dust control required herein shall also be executed on weekends and other non-working days when needed to preserve the health safety or welfare of the public. The Design Builder shall conduct effective cleanup and dust control throughout the duration of the Contract. The Engineer may require increased levels of cleanup and dust control that, in his/her sole discretion, are necessary to preserve the health, safety and welfare of the Page 26 of 73 General Conditions (earls bad Palm Grove Removal and Native Plant Municipal water District Restoration Project No. 3821 public. Cleanup and dust control shall be considered incidental to the items of work that they are associated with and no additional payment will be made therefore. 3.21.2 Air Pollution Control. The Design Builder shall not discharge smoke, dust, or any other air contaminants into the atmosphere in such quantity as will violate the regulations of any legally constituted authority. 3.21.3 Vermin Control. At the time of acceptance, structures entirely constructed under the Contract shall be free of rodents, insects, vermin, and pests. Necessary extermination work shall be arranged and paid for by the Design Builder as part of the Work within the Contract time, and shall be performed by a licensed exterminator in accordance with requirements of governing authorities. The Design Builder shall be liable for injury to persons or property and responsible for the elimination of offensive odors resulting from extermination operations. 3.21.4 Sanitation. The Design Builder shall provide and maintain enclosed toilets for the use of employees engaged in the Work. These accommodations shall be maintained in a neat and sanitary condition. They shall also comply with all applicable laws, ordinances, and regulations pertaining to public health and sanitation of dwellings and camps. 3.21.5 Temporary Light, Power, and Water. The Design Builder shall furnish, install, maintain, and remove all temporary light, power, and water at its own expense. These include piping, wiring, lamps, and other equipment necessary for the Work. The Design Builder shall not draw water from any fire hydrant (except to extinguish a fire), without obtaining permission from the CMWD. The Design Builder shall obtain a construction meter for water used for the construction, plant establishment, maintenance, cleanup, testing and all other work requiring water related to this contract. The Design Builder shall pay all costs of temporary light, power and water including hookup, service, meter and any, and all, other charges, deposits and/or fees therefore. Said costs shall be considered incidental to the items of work that they are associated with and no additional payment will be made therefore. 3.21.6 Water Pollution Control. The Design Builder shall exercise every reasonable precaution to protect channels, storm drains, and bodies of water from pollution. It shall conduct and schedule operations so as to minimize or avoid muddying and silting of said channels, drains, and waters. Water pollution control work shall consist of constructing those facilities which may be required to provide prevention, control, and abatement of water pollution. The Design Builder shall comply with the California State Water Resources Control Board (SWRCB) Order Number R-9-2015-0100, Construction General Permit and amendments thereto, Waste Discharge Requirements (WDR's) for Discharges of Stormwater Runoff associated with Construction Activity (General Permit) and subsequent adopted modifications and with all requirements of the Storm Water Pollution Prevention and Monitoring Plans for this project in accordance with these regulations. 3.22 CUTTING, FITTING, AND PATCHING 3.22.1 Design Build Entity shall do all cutting, fitting, or patching of the Work required to make all parts of the Work come together properly and to allow the Work to receive or be received by work of Separate Contractors shown upon, or reasonably implied by, the Contract Documents. 3.22.2 Design Build Entity shall not endanger the Work, the Project, or adjacent property by cutting, digging, Page 27 of 73 General Conditions (earls bad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 or otherwise. Design Build Entity shall not cut or alter the work of any Separate Contractor without the prior consent of CMWD's Representative. 3.23 ACCESS TO WORK BY THE CMWD 3.23.1 CMWD, CMWD's Representative, their consultants, and other persons authorized by CMWD will at all times have access to the Work wherever it is in preparation or progress. Design Build Entity shall provide safe and proper facilities for such access and for inspection. 3.24 ROYALTIES AND PATENTS 3.24.1 Design Build Entity shall pay all royalties and license fees required for the performance of the Work. Design Build Entity shall defend suits or claims resulting from Design Build Entity's or any Subcontractor's infringement of patent rights and shall indemnify, defend and hold harmless CMWD and CMWD's Representative from losses on account thereof. 3.25 DIFFERING SITE CONDITIONS 3.25.1 If Design Build Entity encounters any of the following conditions at the site, Design Build Entity shall immediately notify CMWD's Representative in writing of the specific differing conditions before they are disturbed and before any affected Work is performed, and permit investigation of the conditions: .1 Subsurface or latent physical conditions at the site which differ materially from those indicated in this Contract, or if not indicated in this Contract, in CMWD Furnished Information; or .2 Unknown physical conditions at the site, of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract. 3.25.2 Design Build Entity shall be entitled to an adjustment to the Contract Sum and/or Contract Time as the result of extra costs and/or delays resulting from a materially differing site condition, if and only if Design Build Entity fulfills the following conditions: .1 Design Build Entity fully complies with Article 3.25.1 above; and .2 Design Build Entity fully complies with Article 4 of the General Conditions (including the timely filing of a Change Order Request and all other requirements for Change Orders Requests and Claims). 3.25.3 Adjustments to the Contract Sum and/or Contract Time shall be subject to the procedures and limitations set forth in Articles 7 and 8 ofthe General Conditions. 3.26 CONCEALED, UNFORESEEN, OR UNKNOWN CONDITIONS OR EVENTS 3.26.1 Except and only to the extent provided otherwise in Articles 3.25, and Articles 7 and 8 of the General Conditions, by signing the Agreement, Design Build Entity agrees: .1 To bear the risk of concealed, unforeseen or unknown conditions and events, if any, which may be Page 28 of 73 General Conditions Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 encountered in performing the Contract; and .2 That Design Build Entity's Pricing Proposal Form for the Contract was made with full knowledge of this risk. 3.26.2 In agreeing to bear the risk of concealed, unforeseen or unknown conditions and events, Design Build Entity understands that, except and only to the extent provided otherwise in Articles 3.25, and Articles 7 and 8 of the General Conditions, concealed, unforeseen or unknown conditions shall not excuse Design Build Entity from its obligation to achieve full completion of the Work within the Contract Time, and shall not entitle the Design Build Entity to an adjustment of the Contract Sum. 3.26.3 If, as the result of concealed, unforeseen or unknown conditions or events, CMWD issues a Change Order or Field Order that changes design details from those details depicted in the Criteria Documents, Design Build Entity shall be entitled, subject to compliance with all the provisions of the Contract, including those set forth in Articles 4, 7 and 8 of the General Conditions, to an adjustment of the Contract Sum and/or Contract Time, for the cost and delay resulting from implementing the changes to the design. Except as provided in this Article 3.25.3, or as may be expressly provided otherwise in the Contract, there shall be no adjustment of the Contract Sum and/or Contract Time as a result of concealed, unforeseen or unknown conditions or events. 3.26.4 Design Build Entity shall, as a condition precedent to any adjustment in Contract Sum or Contract Time under this Article 3.25.4, fully comply with Article 4 of the General Conditions (including the timely filing of a Change Order Request and all other requirements for Change Orders Requests and Claims). 3.27 INFORMATION AVAILABLE TO PROPOSERS 3.27.1 Any information provided pursuant to REQUEST FOR PROPOSALS is subject to the following provisions: .1 The information is made available for the convenience of Proposers and is not a part of the Contract . . 2 The Design Build Entity may rely on written descriptions of physical conditions included in the information to the extent such reliance is reasonable . . 3 Other components of the information, including but not limited to recommendations, may not be relied upon by Design Build Entity. CMWD shall not be responsible for any interpretation of or conclusion drawn from the other components of the information by the Design Build Entity. 3.28 LIABILITY FOR AND REPAIR OF DAMAGED WORK 3.28.1 Design Build Entity shall be liable for any and all damages and losses to the Project (whether by fire, theft, vandalism, earthquake, flood or otherwise) prior to CMWD's acceptance of the Project as fully completed except that Design Build Entity shall not be liable for earthquake in excess of magnitude 3.5 on the Richter Scale, tidal wave, or flood, provided that the damages or losses were not caused in whole or in part by the negligent acts or omissions of Design Build Entity, its officers, agents or employees (including all Subcontractors and suppliers of all tiers). As used herein, "flood" shall have the same meaning as in the builder's risk property insurance. 3.28.2 Design Build Entity shall promptly repair and replace any Work or materials damaged or destroyed for which the Design Build Entity is liable under Article 3.28.1 above. Page 29 of 73 General Conditions (Carlsbad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 3.28.3 Notwithstanding the Design Build Entity's financial liability for any damage or losses that may or may not be covered by the builder's risk property insurance provided hereunder, the Design Build Entity shall promptly repair and replace any Work or materials damaged or destroyed during the term of this Project and work to maintain or recover the project schedule. The Design Build Entity shall be responsible to protect the site and segregate all costs associated with any required corrective action, including costs to expedite material and work overtime as necessary to maintain the schedule. 3.29 INDEMNIFICATION 3.29.1 Design Builder shall assume the defense of, pay all expenses of defense, and indemnify and hold harmless CMWD, and its officers and employees, from all claims, loss, damage, injury and liability of every kind, nature and description, directly or indirectly arising from or in connection with the performance of the Contract or work; or from any failure or alleged failure of Design Builder to comply with any applicable law, rules or regulations including those relating to safety and health; and from any and all claims, loss, damages, injury and liability, howsoever the same may be caused, resulting directly or indirectly from the nature of the work covered by the Contract, except for loss or damage caused by the sole or active negligence or willful misconduct of CMWD. The expenses of defense include all costs and expenses including attorneys' fees for litigation, arbitration, or other dispute resolution method. 3.29.2 Design Builder shall also defend and indemnify CMWD against any challenges to the award of the contract to Design Builder, and Design Builder will pay all costs, including defense costs for CMWD. Defense costs include the cost of separate counsel for CMWD, if CMWD requests separate counsel. 3.29.3 Design Builder shall also defend and indemnify CMWD against any challenges to the award of the contract to Design Builder, arising in whole or in part from alleged inaccuracies or misrepresentation by the Design Builder, whether intentional or otherwise, and Design Builder will pay all costs, including defense costs for CMWD. Defense costs include the cost of separate counsel for CMWD, if CMWD requests separate counsel. 3.29.4 Design Builder shall also defend and indemnify CMWD against any attempts by Design Builder's insurance carriers to recover or subrogate against CMWD for any and all losses arising in connection with Design Builder's performance of work or services under the Contract covered by the insurance. 3.29.5 Design Build Entity shall indemnify, defend and hold harmless CMWD, it's officials, employees, volunteers, CMWD's consultants, CMWD's Representative, CMWD's Representative's consultants, and their respective directors, officers, agents, and employees from and against losses (including without limitation the cost of repairing defective work and remedying the consequences of defective work) arising out of, resulting from, or relating to the following: .1 The failure of Design Build Entity to perform its obligations under the Contract . . 2 The inaccuracy of any representation or warranty by Design Build Entity given in accordance with or contained in the Contract Documents . . 3 Any claim of damage or loss by any Subcontractor against CMWD arising out of any alleged act or omission of Design Build Entity or any other Subcontractor, or anyone directly or indirectly employed by Design Build Entity or any Subcontractor. Page 30 of 73 General Conditions (earls bad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 .4 Any claim of damage or loss resulting from Hazardous Materials introduced, discharged, or disturbed by Design Build Entity as required per Article 3.10.7. 3.29.6 CMWD shall not be liable or responsible for any accidents, loss, injury (including death} or damages happening or accruing during the term of the performance of the Work herein referred to or in connection therewith, to persons and/or property, and Design Build Entity shall fully indemnify, defend and hold harmless CMWD and protect CMWD from and against the same as provided in paragraph 3.29.1 above. In addition to the liability imposed by law upon the Design Build Entity for damage or injury (including death} to persons or property by reason of the negligence of the Design Build Entity, its officers, agents, employees or Subcontractors, which liability is not impaired or otherwise affected hereby, the Design Build Entity shall defend, indemnify, hold harmless, release and forever discharge CMWD, its officers, employees, and agents from and against and waive any and all responsibility of same for every expense, liability, or payment by reason of any damage or injury (including death} to persons or property suffered or claimed to have been suffered through any negligent act, omission, or willful misconduct of the Design Build Entity, its officers, agents, employees, or any of its Subcontractors, or anyone directly or indirectly employed by either of them or from the condition of the premises or any part of the premises while in control of the Design Build Entity, its officers, agents, employees, or any of its Subcontractors or anyone directly or indirectly employed by either of them, arising out of the performance of the Work called for by this Contract. Design Build Entity agrees that this indemnity and hold harmless shall apply even in the event of negligence of CMWD, its officers, agents, or employees, regardless of whether such negligence is contributory to any claim, demand, loss, damage, injury, expense, and/or liability; but such indemnity and hold harmless shall not apply (i} in the event of the sole negligence of CMWD, its officers, agents, or employees; or (ii} to the extent that CMWD shall indemnify and hold harmless the Design Build Entity for Hazardous Materials pursuant to Article 3.10.6. 3.29.7 In claims against any person or entity indemnified under this Article 3.29 that are made by an employee of Design Build Entity or any Subcontractor, a person indirectly employed by Design Build Entity or any Subcontractor, or anyone for whose acts Design Build Entity or any Subcontractor may be liable, the indemnification obligation under this Article 3.28 shall not be limited by any limitation on amount or type of damages, compensation, or benefits payable by or for Design Build Entity or any Subcontractor under workers' compensation acts, disability benefit acts, or other employee benefit acts. 3.29.8 The indemnification obligations under this Article 3.29 shall not be limited by any assertion or finding that the person or entity indemnified is liable by reason of a non-delegable duty. 3.29.9 Design Build Entity shall indemnify CMWD from and against losses resulting from any claim of damage made by any Separate Contractor against CMWD arising out of any alleged acts or omissions of Design Build Entity, any Subcontractor, anyone directly or indirectly employed by either of them, or anyone for whose acts either of them may be liable. 3.29.10 Design Build Entity shall indemnify Separate Contractor from and against losses arising out of the negligent acts, omissions, or willful misconduct of Design Build Entity, any Subcontractor, anyone directly or indirectly employed by either of them, or anyone for whose acts either of them may be liable. 3.29.11 Design Build Entity shall indemnify, defend, and hold harmless CMWD and its officers, employees, agents, volunteers, and representatives (collectively, "lndemnitee"}, against all liability, demands, claims, costs, damages, injury including death, settlements, and expenses (including without limitation, interest and penalties) incurred by lndemnitee arising out of the performance of services or Design Build Entity's other obligations under this Contract, but only in proportion to and to the extent such losses are caused by or result from (1} the Page 31 of 73 General Conditions (car }s bad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 negligent acts or omissions of Design Build Entity, its officers, agents, employees, subcontractors, consultants, or any person or entity for whom Design Build Entity is responsible (collectively, "lndemnitor"); (2) the breach by lndemnitor of any of the provisions of this Contract; or (3) willful misconduct by lndemnitor. 3.29.12 The indemnification obligations under this Article 3.29 shall not be limited by any assertion or finding that (1) the person or entity indemnified is liable by reason of non-delegable duty, or (2) the losses were caused in part by the negligence of, breach of contract by, or violation of law by lndemnitee. The obligation to defend shall arise regardless of any claim or assertion that lndemnitee caused or contributed to the losses. lndemnitor's reasonable defense costs (including attorney and expert fees) incurred in providing a defense for lndemnitees shall be reimbursed by CMWD except to the extent such defense costs arise, under principles of comparative fault, from lndemnitor's (a) negligent acts or omissions; (b) breach of any of the provisions of this Contract; or (c) willful misconduct. 3.29.13 Design Build Entity shall indemnify, defend, and save harmless lndemnitee from and against all loss, cost, expense, royalties, claims for damages or liability, in law or in equity, including, without limitation, attorney's fees, court costs, and other litigation expenses that may at any time arise or be set up for any infringement (or alleged infringement) of any patent, copyright, trade secret, trade name, trademark or any other proprietary right of any person or entity in consequence of the use on the Project by lndemnitee of the Design Materials or Construction Documents (including any method, process, product, concept specified or depicted) supplied by lndemnitor in the performance of this Contract. 3.29.14 Nothing in this Contract, including the provisions of this Article 3, shall constitute a waiver or limitation of any rights which lndemnitee may have under applicable law, including without limitation, the right to implied indemnity. 3.29.15 Design Builder's defense and indemnity obligation herein includes, but is not limited to lawsuits, damages, fines, penalties, attorney's fees and costs arising from claims under the Americans With Disabilities Act (ADA} or other federal or state disability access or discrimination laws arising from Design Builder's Work during the course of construction of the improvements or after the Work is complete, as the result of defects or negligence in Contractor's construction of the improvements. ARTICLE 4 ADMINISTRATION OF THE CONTRACT 4.1 ADMINISTRATION OF THE CONTRACT BY CMWD 4.1.1 CMWD's Representative will provide limited administration of the Contract as provided in the Contract Documents and will be the representative of CMWD. CMWD's Representative will have authority to act on behalf of CMWD only to the extent provided in the Contract Documents. CMWD shall designate, from time to time, one or more representatives authorized to act on CMWD's behalf with respect to the Project, together with the scope of his/her respective authority. Functions for which this Contract provides will be performed by CMWD may be delegated by CMWD only by written notice to the Design Build Entity from CMWD. The Design Build Entity shall not be entitled to rely on directions (nor shall it be required to follow the directions) from anyone outside the scope of that person's authority as set forth in written authorization pursuant to this Contract. Page 32 of 73 General Conditions (earls bad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 4.1.2 During the term of this Contract, CMWD's Representative shall have the right to review Design Build Entity's Design Professionals' Work at such intervals as deemed appropriate by CMWD's Representative. However, no actions taken during such review or site visit by CMWD's Representative shall relieve Design Build Entity of any of its obligations of single-point responsibility for the design and construction of this Project, nor form the basis for a Claim if such actions extend the Contract Completion Date beyond the Contract Time. 4.1.3 CMWD's Representative will not have control over, will not be in charge of, and will not be responsible for design or construction means, methods, techniques, sequences, or procedures, or for safety precautions and programs in connection with the Work, since these are solely Design Build Entity's responsibility. 4.1.4 Except as otherwise provided in the Contract Documents or when direct communications have been specifically authorized, CMWD and Design Build Entity shall communicate through CMWD's Representative. Except when direct communication has been specifically authorized in writing by CMWD's Representative, communications by Design Build Entity with CMWD's consultants and CMWD's Representative's consultants shall be through CMWD's Representative. Communications by CMWD and CMWD's Representative with Subcontractors will be through Design Build Entity. Communications by Design Build Entity and Subcontractors with Separate Contractors shall be through CMWD's Representative. Design Build Entity shall not rely on oral or other non-written communications. 4.1.5 Based on CMWD's Representative's Project site visits, review of Design Work, and evaluations of Design Build Entity's Applications For Payment, CMWD's Representative will recommend amounts, if any, due Design Build Entity and will issue Certificates For Payment in such amounts. 4.1.6 CMWD's Representative will have the authority to reject the Work, or any portion thereof, which does not conform to the Contract Documents. CMWD's Representative will have the authority to stop the Work, or any portion thereof. Whenever CMWD's Representative considers it necessary, or advisable, for implementation of the intent of the Contract Documents, CMWD's Representative will have the authority to require additional inspection or testing of the Work in accordance with the Contract Documents, whether or not such Work is fabricated, installed, or completed. However, neither authority of CMWD's Representative conferred by the Contract Documents nor any decision made in good faith either to exercise, or to not exercise such authority, will give rise to a duty or responsibility of CMWD or CMWD's Representative to Design Build Entity, or any person or entity claiming under, or through, Design Build Entity. 4.1.7 CMWD's Representative will have the authority to conduct inspections as provided in the Contract Documents, to take Beneficial Occupancy and to determine the dates of Provisional Acceptance and Final Completion; will receive for review and approval any records, written warranties, and related documents required by the Contract Documents and assembled by Design Build Entity; and will issue a final Certificate For Payment upon Design Build Entity's compliance with the requirements of the Contract Documents. 4.1.8 CMWD's Representative will be, in the first instance, the interpreter of the requirements of the Contract Documents and the judge of performance thereunder by Design Build Entity. Should Design Build Entity discover any conflicts, omissions, or errors in the Construction Documents or the Contract Documents; have any questions about the interpretation or clarification of the Contract Documents; question whether Work is within the scope of the Contract Documents; then, before proceeding with the Work affected, Design Build Entity shall notify CMWD's Representative in writing and request interpretation, or clarification. CMWD's Representative's response to questions and requests for interpretations, clarifications, instructions, or decisions will be made with reasonable promptness. Should Design Build Entity proceed with the Work affected before receipt of a Page 33 of 73 General Conditions (Carlsbad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 response from CMWD's Representative, any portion of the Work which is not done in accordance with CMWD's Representative's interpretations, clarifications, instructions, or decisions shall be removed or replaced and Design Build Entity shall be responsible for all resultant losses. 4.2 DESIGN BUILDER CHANGE ORDER 4.2.1 Design Build Entity may request changes to the Contract Sum and/or Contract Time for Extra Work, materially differing site conditions, or delays to Final Completion of the Work. 4.2.2 Conditions precedent to obtaining an adjustment of the Contract Sum and/or Contract Time payment of money, or other relief with respect to the Contract Documents, for any other reason, are: .1 Timely submission of a Change Order Request that meets the requirements of Articles 4.2.3.1 and 4.2.3.2 below; and .2 If requested, timely submission of additional informational requested by CMWD's Representative pursuant to Article 4.2.3.3 below. 4.2.3 Change Order Request: 4.2.3.1 A Change Order Request will be deemed timely submitted if, and only if, it is submitted within 7 days of the date the Design Build Entity discovers, or reasonably should discover the circumstances giving rise to the Change Order Request, unless additional time is allowed in writing by CMWD's Representative for submission of the Change Order Request, provided that if: .1 The Change Order Request includes compensation sought by a Subcontractor; AND .2 The Design Build Entity provides a written request to CMWD's Representative, within the 7-day time period, additional time to permit Design Build Entity to conduct an appropriate review of the Subcontractor Change Order Request, then the time period for submission of the actual Change Order Request shall be extended by the number of days specified in writing by CMWD's Representative. 4.2.3.2 A Change Order Request must state that it is a Change Order Request, state and justify the reason for the request, and specify the amount of any requested adjustment of the Contract Sum, Contract Time, and/or other monetary relief. If the Design Build Entity requests an adjustment to the Contract Sum or other monetary relief, the Design Build Entity shall submit the following with the Change Order Request: .1 A completed Cost Proposal in the form contained in the Price Proposal Exhibits meeting the requirements of Article 7 of the General Conditions; OR .2 A partial Cost Proposal and a declaration of what required information is not then known to Design Build Entity. If Design Build Entity failed to submit a completed Cost Proposal with the Change Order Request, Design Build Entity shall submit a completed Cost Proposal meeting the requirements of Article 7 within 7 days of the date the Design Build Entity submitted the Change Order Request unless additional time is allowed by CMWD's Representative. Page 34 of 73 General Conditions arlsbad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 4.2.3.3 Upon request of CMWD's Representative, Design Build Entity shall submit such additional information as may be requested by CMWD's Representative for the purpose of evaluating the Change Order Request. Such additional information may include: .1 If Design Build Entity seeks an adjustment of the Contract Sum or other monetary relief, actual cost records for any changed or extra costs (including without limitation, payroll records, material and rental invoices and the like}, shall be submitted by the deadline established by CMWD's Representative, who may require such actual cost records to be submitted and reviewed, on a daily basis, by CMWD's Representative and/or representatives of CMWD's Representative . . 2 If Design Build Entity seeks an adjustment of the Contract Time, written documentation demonstrating Design Build Entity's entitlement to a time extension under Article 8.4, which shall be submitted within 15 days of the date requested unless CMWD's Representative requires an earlier submission. If requested, Design Build Entity may submit documentation in support of its request for a time extension. CMWD may, but is not obligated to, grant a time extension. If deemed appropriate by CMWD's Representative, Design Build Entity shall submit a more detailed schedule analysis in support of its request for a time extension . . 3 If Design Build Entity seeks an adjustment of the Contract Sum or other monetary relief for delay, written documentation demonstrating Design Build Entity's entitlement to such an adjustment under Article 7.3.9 of the General Conditions, which shall be submitted within 15 days of the date requested . .4 Any other information requested by CMWD's Representative for the purpose of evaluating the Change Order Request, which shall be submitted by the deadline established by CMWD's Representative. 4.2.4 CMWD's Representative will make a decision on a Change Order Request, within a reasonable time, after receipt of a Change Order Request. In the event the Change Order Request is submitted pursuant to Article 8.4.1, CMWD's Representative shall promptly review and accept or reject it within thirty (30} days. A final decision is any decision on a Change Order Request which states that it is final. If CMWD's Representative issues a final decision denying a Change Order Request in whole or in part, Design Build Entity may contest the decision by filing a timely Claim under the procedures specified in Article 4.3 of the General Conditions. 4.2.5 Design Build Entity may file a written demand for a final decision by CMWD's Representative on all or part of any Change Order Request as to which CMWD's Representative has not previously issued a final decision pursuant to Article 4.2.4 of the General Conditions; such written demand may not be made earlier than the 30th day after submission of the Change Order Request. Within 30 days of receipt of the demand, CMWD's Representative will issue a final decision on the Change Order Request. CMWD's Representative's failure to issue a decision within the 30-day period shall be treated as the issuance, on the last day of the 30- day period, of a final decision to deny the Change Order Request in its entirety. 4.3 CLAIMS 4.3.1 The term "Claim" means a written demand or assertion by Design Build Entity seeking an adjustment or interpretation of the terms of the Contract Documents, payment of money, extension of time, or other relief with respect to the Contract Documents, including a determination of disputes or matters in question between Page 35 of 73 General Conditions arJsbad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 CMWD and Design Build Entity arising out of or related to the Contract Documents or the performance of the Work. However, conditions listed below are not included in the term "Claim", and are not included in the Claims procedures provided under this Article 4, .1 Claims regarding penalties for forfeitures prescribed by statute or regulation that a government agency is specifically authorized to administer, settle, or determine . . 2 Claims regarding personal injury, death, reimbursement, or other compensation arising out of or resulting from liability for personal injury or death . . 3 Claims by CMWD, except as set forth in Article 4.7.4 of the General Conditions . .4 Claims respecting stop notices. 4.3.2 A Claim arises upon the issuance of a written final decision denying in whole or in part Design Build Entity's Change Order Request pursuant to Article 4.2.4 of the General Conditions. 4.3.3 A Claim must include the following: .1 A statement that it is a Claim and a request for a decision pursuant to Article 4.5 of the General Conditions . . 2 A detailed factual narrative of events fully describing the nature and circumstances giving rise to the Claim, including but not limited to, necessary dates, locations, and items of work affected . . 3 A certification, executed by Design Build Entity, that the claim is filed in good faith. The certification must be made on the Claim Certification form, included in the Standard Forms to the Contract. The language of the Claim Certification form may not be modified . .4 A certification, executed by each Subcontractor claiming more than 5% of the total monetary amount sought by the claim, that the Subcontractor's portion of the claim is filed in good faith. The certification must be made on the Claim Certification form, included in the Standard Forms to the Contract. The language of the Claim Certification form may not be modified . . 5 A statement demonstrating that a Change Order Request was timely submitted as required by Article 4.2.4 of the General Conditions . . 6 If a Cost Proposal or declaration was required by Article 4.2.3 of the General Conditions, a statement demonstrating that the Cost Proposal or the declaration was timely submitted as required by Article 4.2.3 of the General Conditions . . 7 A detailed justification for any remedy or relief sought by the Claim, including to the extent applicable, the following: .1 If the Claim involves Extra Work, an estimate of the costs must of the amounts claimed, including the items specified in Article 7.3.2 of the General Conditions. The cost breakdown must be provided even if the costs claimed have not been incurred when the Claim is Page 36 of 73 General Conditions (car ls bad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 submitted. To the extent costs have been incurred when the Claim is submitted, the Claim must include actual cost records (including without limitation, payroll records, material and rental invoices and the like) demonstrating that costs claimed have actually been incurred. To the extent costs have not yet been incurred at the time the Claim is submitted, actual cost records must be submitted on a current basis not less than once a month during any periods costs are incurred. A cost record will be considered current if submitted within 30 days of the date the cost reflected in the record is incurred. At the request of CMWD's Representative, claimed extra costs may be subject to further verification procedures (such as having an inspector verify the performance of alleged Extra Work on a daily basis). The cost breakdown must include an itemization of costs for i) labor including names, classifications, regular hours and overtime hours worked, dates worked, and other pertinent information; ii) materials stored or incorporated in the work including invoices, purchase orders, location of materials either stored or incorporated into the work, dates materials were transported to the project or incorporated into the work, and other pertinent information; and iii) itemization of machinery and equipment including make, model, hours of use, dates of use and equipment rental rates of any rented equipment. .2 The Design Build Entity shall be responsible for all errors and omissions contained within the Construction Documents . . 3 If the Claim involves an extension of the Contract Time, written documentation demonstrating the Design Build Entity's entitlement to a time extension under Article 8.4 of the General Conditions, including the specific dates for which a time extension is sought and the specific reasons for entitlement of a time extension . .4 If the Claim involves an adjustment of the Contract Sum for delay, written documentation demonstrating the Design Build Entity's entitlement to such an adjustment under Article 7.3.9 of the General Conditions, including but not limited to, a detailed time impact analysis of the Contract Schedule. The Contract Schedule must demonstrate Design Build Entity's entitlement to such an adjustment under Article 7.3.9 of the General Conditions. 4.4 ASSERTION OF CLAIMS 4.4.1 Claims by Design Build Entity shall be first submitted to CMWD's Representative for review. 4.4.2 Notwithstanding the making of any Claim or the existence of any dispute regarding any Claim, unless otherwise directed by CMWD's Representative, Design Build Entity shall not cause any delay, cessation, or termination in or of Design Build Entity's performance of the Work, but shall diligently proceed with performance of the Work in accordance with the Contract Documents. 4.4.3 Design Build Entity shall submit a Claim in writing, together with all supporting data specified in Article 4.3.3 of the General Conditions, to CMWD's Representative as soon as possible but not later than 30 days after the date the Claim arises under Article 4.3.2 of the General Conditions, provided that after written notification to CMWD's Representative within such time period, the time period for submission of the Claim shall be extended by the number of days specified in writing by CMWD's Representative where the Claim includes compensation sought by a Subcontractor and the Design Build Entity requests an extension of time to permit it to discharge its responsibilities to conduct an appropriate review of the Subcontractor claim. Page 37 of 73 General Conditions (earls bad Municipal Water District Palm Grove Removal and Native Plant Restoration Project No. 3821 4.4.4 Design Build Entity agrees that strict compliance with the requirements of Articles 4.2, 4.3, and 4.4 of the General Conditions are conditions precedent to Design Build Entity's right to arbitrate or litigate a Claim. Design Build Entity specifically agrees to assert no Claims in arbitration or litigation unless there has been strict compliance with Articles 4.2, 4.3, and 4.4 of the General Conditions. The failure of Design Build Entity to strictly comply with the requirements of Articles 4.2, 4.3 and 4.4 of the General Conditions constitutes a failure by Design Build Entity to exhaust its administrative remedies with CMWD, thereby denying any court or arbitration panel of jurisdiction to adjudicate the Claim. 4.5 DECISION OF CMWD'S REPRESENTATIVE ON CLAIMS 4.5.1 CMWD's Representative will timely review Claims submitted by Design Build Entity. If CMWD's Representative determines that additional supporting data are necessary to fully evaluate a Claim, CMWD's Representative will request such additional supporting data in writing. Such data shall be furnished no later than 10 days after the date of such request. CMWD's Responsible Administrator will render a decision promptly and in any case within 30 days after the later of the receipt of the Claim or the deadline for furnishing such additional supporting data; provided that, if the amount of the Claim is in excess of $50,000, the aforesaid 30- day period shall be 60 days. Failure of CMWD's Responsible Administrator to render a decision by the applicable deadline will be deemed a decision denying the Claim on the date of the deadline. The decision of CMWD's Responsible Administrator will be final and binding unless appealed in accordance with Articles 4.5.2, and 4.5.3,of the General Conditions. CMWD's Responsible Administrator decision on a Claim or dispute will include a statement substantially as follows: "This is a decision under Article 4.5 of the General Conditions of your contract. If you are dissatisfied with the decision, and if you complied with the procedural requirements for asserting claims specified in Article 4 of the General Conditions of your contract, you must follow the procedures in Article 4.7. If you fail to take appropriate action with 30 days of the date of this decision, the decision shall become final and binding and not subject to further appeal." 4.5.2 If the Design Build Entity disputes the decision of CMWD's Responsible Administrator regarding a Claim, the Design Build Entity must either provide a written notice of its election to proceed under Article 4.7 within 30 days after the decision of CMWD's Responsible Administrator or, if no decision has been issued, within 30 days from the date of the applicable deadline in Article 4.5.1 of the General Conditions. 4.5.3 If a notice of election to proceed under Article 4.7 is not given by either party within 30 days after the decision of CMWD's Responsible Administrator, CMWD's Responsible Administrator's decision on the Claim will be final and binding and not subject to appeal or challenge. 4.5.4 The Design Build Entity and CMWD will attempt in good faith to resolve any controversy or Claim arising out of or relating to this Contract by negotiation. Prior to proceeding with dispute resolution as provided in Article 4.7, the Design Build Entity shall attempt to resolve all disputes informally through the following dispute resolution chain of command: .1 CMWD's Representative Page 38 of 73 General Conditions Palm Grove Removal and Native Plant Municipal Water District Restoration ProjectNo. 3821 .2 CMWD's Responsible Administrator .3 City Public Works Director .4 City Manager 4.6 NOT USED 4.7 DISPUTE RESOLUTION 4.7.1 Claims between CMWD and the Design Build Entity of $375,000 or less shall be resolved in accordance with the procedures established in Part 3, Chapter 1, Article 1.5 off the California Public Contract Code, §§ 20104 et seq.; provided however that California Public Contract Code § 20104.2 shall not supersede the requirements of the Contract Documents with respect to the Contractor's notification to CMWD of such claim or extend the time for giving of such notice as provided in the Contract Documents. 4.7.2 Except as provided in Article 4.7.1, any other claims, disputes or other matters in controversy shall be resolved as follows. In lieu of, or prior to litigation, the parties shall endeavor to settle disputes by mediation in accordance with the Construction Industry Mediation Rules ofthe American Arbitration Association then in effect, unless the parties mutually agree otherwise to a different method of alternative dispute resolution. 4.7.3 Any dispute which cannot be resolved between the parties shall be resolved through litigation shall be filed in the Superior Court of the State of California, in the County of San Diego. Design Build Entity agrees to incorporate this provision into all subcontracts. 4.8 WAIVER 4.8.1 A waiver of, or failure by, CMWD or CMWD's Representative to enforce any requirement in this Article 4, including, without limitation, the requirements in Articles 4.2, 4.3, 4.4, and 4.5 in connection with any Claim shall not constitute a waiver of, and shall not preclude CMWD or CMWD's Representative from enforcing, such requirements in connection with any other Claims. 4.8.2 The Design Build Entity agrees and understands that no oral approval, either express or implied, of any Claim shall be binding upon CMWD unless and until such approval is ratified by execution of a written Change Order. ARTICLE 5 SUBCONTRACTORS 5.1 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK 5.1.1 Design Build Entity shall submit to CMWD's Representative an updated Expanded List of Subcontractors along with their respective addresses, telephone numbers, e-mail addresses and Design Builder's license numbers. The Expanded List of Subcontractors shall be provided and with Disadvantaged Business Enterprise forms as required in the Contract Documents no later than sixty (60) days after the date which CMWD exercises its Option to proceed with Phase 2. Page 39 of 73 General Conditions (Carlsbad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 5.1.2 The Subcontractors listed by Design Build Entity shall only be substituted in strict accordance with the "Subletting and Subcontracting Fair Practices Act" and upon the written consent of CMWD. Only upon compliance with the "Subletting and Subcontracting Fair Practices Act" and with the written consent of CMWD shall a substitution be made. 5.1.3 Any increase in the cost of the Work resulting from the replacement or substitution of a Subcontractor pursuant to above Article 5.1.3 shall be borne solely by Design Build Entity. Design Build Entity shall not be entitled to any increase in Contract Sum or an extension of Contract Time due to such replacement or substitution. 5.2 SUBCONTRACTUAL RELATIONS 5.2.1 Any part of the Work performed for Design Build Entity by a first-tier Subcontractor shall be pursuant to a written subcontract. Each such subcontract shall require the Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to Design Build Entity by the terms and conditions of the Contract Documents between CMWD and the Design Builder, to assume toward Design Build Entity all the obligations and responsibilities which Design Build Entity assumes towards CMWD by the Contract Documents, and to perform such portion of the Work in accordance with the Contract Documents. Each such subcontract shall preserve and protect the rights of CMWD under the Contract Documents, with respect to the Work to be performed by Subcontractor, so that subcontracting thereof will not prejudice such rights. Design Build Entity shall cause each such subcontract to expressly include the following requirements: .1 Subcontractor waives all rights that Subcontractor may have against CMWD for damages caused by fire or other perils covered by builder's risk property insurance carried by Design Build Entity or CMWD, except for such rights Subcontractor may have to the proceeds of such insurance held by CMWD under Article 11 of the General Conditions . . 2 CMWD, and entities and agencies designated by CMWD, will have access to and the right to audit and the right to copy, at CMWD's cost, all of Subcontractor's books, records, contracts, correspondence, instructions, drawings, receipts, vouchers, purchase orders, and memoranda relating to the Work. Subcontractor shall preserve all such records and other items for a period of at least 3 years after Final Completion . . 3 Subcontractor recognizes the rights of CMWD under Article 5.3 of the General Conditions, Contingent Assignment of Subcontracts, and agrees, upon notice from CMWD that CMWD has elected to accept said assignment and to retain Subcontractor pursuant to the terms of the subcontract, to complete the unperformed obligations under the subcontract and, if requested by CMWD, to execute a written agreement confirming that Subcontractor is bound to CMWD under the terms of the subcontract . .4 Design Build Entity is responsible for reviewing and coordinating the Work of and among his Subcontractors and Design Professionals. This review and coordination includes, but is not limited to, resolution of any inconsistencies, errors or omissions . . 5 Bonds and Insurance between any Subcontractor and Design Builder is between the two parties and the responsibility of the two parties. 5.2.2 Upon the request of CMWD, Design Build Entity shall promptly furnish to CMWD a true, complete, and Page 40 of 73 General Conditions Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 executed copy of any subcontract. 5.2.3 Nothing contained in the Contract Documents shall create any contractual relationship between any Subcontractor and CMWD, except when, and only to the extent that, CMWD elects to accept the assignment of the subcontract with such Subcontractor pursuant to Article 5.3 of the General Conditions, Contingent Assignment of Subcontracts. 5.3 CONTINGENT ASSIGNMENT OF SUBCONTRACTS 5.3.1 Design Build Entity hereby assigns to CMWD all its interest in first-tier subcontracts now or hereafter entered into by Design Build Entity for performance of any part of the Work. The assignment will be effective upon acceptance by CMWD in writing and only as to those subcontracts which CMWD designates in writing. CMWD may accept said assignment at any time during the course of the Work and prior to Final Completion in the event of a suspension or termination of Design Build Entity's rights under the Contract Documents. Such assignment is part of the consideration to CMWD for entering into the Contract with Design Build Entity and may not be withdrawn prior to Final Completion. ARTICLE 6 CONSTRUCTION BY CMWD OR BY SEPARATE CONTRACTORS 6.1 CMWD'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS 6.1.1 CMWD reserves the right to award separate contracts for, or to perform with its own forces, construction or operations related to the Work or other construction or operations at or affecting the Project site, including portions of the Work which have been deleted by Change Order. Design Build Entity shall cooperate with CMWD's forces and Separate Contractors. 6.1.2 CMWD will provide coordination of the activities of CMWD's forces and of each Separate Contractor with the Work of Design Build Entity. Design Build Entity shall participate with CMWD and Separate Contractors in joint review of construction schedules and Project requirements when directed to do so. Design Build Entity shall make necessary revisions to the Contract Schedule after such joint review. 6.2 MUTUAL RESPONSIBILITY 6.2.1 Design Build Entity shall afford CMWD and Separate Contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities. Design Build Entity shall connect, schedule, and coordinate its construction and operations with the construction and operations of CMWD and Separate Contractors as required by the Contract Documents. 6.2.2 If a portion of the Work is dependent upon the proper execution or results of other construction or operations by CMWD or Separate Contractors, Design Build Entity shall inspect such other design or construction or operations before proceeding with that portion of the Work. Design Build Entity shall promptly report to CMWD's Representative apparent discrepancies or defects which render the other design, construction or operations unsuitable to receive the Work. Unless otherwise directed by CMWD's Representative, Design Build Entity shall not proceed with the portion of the Work affected until apparent Page 41 of 73 General Conditions Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 discrepancies or defects have been corrected. Failure of Design Build Entity to so report within a reasonable time after discovering such discrepancies or defects shall constitute an acknowledgment that the other construction or operations by CMWD or Separate Contractors is suitable to receive the Work, except as to defects not then reasonably discoverable. 6.3 CMWD'S RIGHT TO CLEAN UP 6.3.1 If a dispute arises between Design Build Entity and Separate Contractors as to the responsibility under their respective contracts for maintaining the Project site and surrounding areas free from waste materials and rubbish, CMWD may clean up and allocate the cost between those firms it deems to be responsible. ARTICLE 7 CHANGES IN THE WORK 7.1 CHANGES 7.1.1 CMWD may, from time to time, order or authorize additions, deletions, and other changes in the Work by Change Order or Field Order without invalidating the Contract and without notice to sureties. Absence of such notice shall not relieve such sureties of any of their obligations to CMWD. 7.1.2 Design Build Entity may request a Change Order under the procedures specified in Article 4.2 of the General Conditions. 7.1.3 A Field Order may be issued by CMWD, does not require the agreement of Design Build Entity, and shall be valid with or without the signature of Design Build Entity. 7.1.4 Design Build Entity shall proceed promptly with any changes in the Work, unless otherwise provided in the relevant Change Order or Field Order. 7.2 CHANGES DEFINITIONS 7.2.1 A Change Order is a Contract Document (as shown in the Standard Forms) which has been signed by both CMWD and Design Build Entity, and states their agreement, as applicable, to any of the following: .1 A change in the Work . . 2 The amount of an adjustment of the Contract Sum . . 3 The amount of an adjustment of the Contract Time . .4 A modification to any other Contract term or condition. 7.2.2 A Unilateral Change Order may also be issued by CMWD, without Design Build Entity's signature, where CMWD determines that a change in the Work requires an adjustment of the Contract Sum or Contract Time as CMWD believes to be properly due Design Build Entity, even though no agreement has been reached between Page 42 of 73 General Conditions Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 CMWD and Design Build Entity with regard to such change in the Work. 7.2.3 A Field Order (as shown in the Standard Forms) is a Contract Document issued by CMWD that orders the Design Build Entity to perform Work. A Field Order may, but need not, constitute a change in the Work and may, but need not, entitle Design Build Entity to an adjustment of the Contract Sum or Contract Time. 7.3 CHANGE ORDER PROCEDURES 7.3.1 Design Build Entity shall provide a Change Order Request and Cost Proposal pursuant to Article 4.2 of the General Conditions and this Article 7.3. Adjustments of the Contract Sum resulting from Extra Work and Deductive Work shall be determined using one of the methods described in this Article 7.3. Adjustments of the Contract Time shall be subject to the provisions in Article 8 of the General Conditions. Design Build Entity's obligation to provide Cost Proposals shall be subject to the following: .1 The obligation of Design Build Entity to provide Cost Proposals is not Extra Work, and shall not entitle the Design Build Entity to an adjustment of the Contract Sum or Contract Time . . 2 The failure of Design Build Entity to timely provide a Cost Proposal pursuant to Article 4.2 of the General Conditions and this Article 7.3.1 is a material breach of the Contract. Design Build Entity shall be responsible for any delay in implementing a change for which Design Build Entity failed to timely provide a Cost Proposal consistent with the requirements of Article 4.2 of the General Conditions and this Article 7.3.1. 7.3.2 The term "Cost of Extra Work" as used in this Article 7.3 shall mean actual costs incurred or to be incurred by Design Build Entity and each Subcontractor regardless of tier involved, to the extent not otherwise disallowed under Article 7.3.3, and shall be limited to the following (to the extent the Design Build Entity demonstrates that the costs are both reasonable and actually incurred, if such costs have been incurred): .1 Straight-time wages or salaries for employees employed at the Project site, or at fabrication sites off the Project site, incurred as a result of performance of the Extra Work . . 2 Fringe Benefits and Payroll Taxes for employees employed at the Project site, or at fabrication sites off the Project site, incurred as a result of performance of the Extra Work. Except: Bonuses, cell phone units and portable computers, entertainment, etc . . 3 Overtime wages or salaries, specifically authorized in writing by CMWD's Representative, for employees employed at the Project site, or at fabrication sites off the Project site, incurred as a result of performance of the Extra Work . .4 Fringe Benefits and Payroll Taxes for overtime Work specifically authorized in writing by CMWD's Representative, for employees employed at the Project site, or at fabrication sites off the Project site, incurred as a result of performance of the Extra Work . . 5 Costs of materials and consumable items which are furnished and incorporated into the Extra Work, as approved by CMWD's Representative. Such costs shall be charged at the lowest price available to the Design Build Entity but in no event shall such costs exceed competitive costs Page 43 of 73 General Conditions Palm Grove Removal and Native Plant Municipal water District Restoration Project No. 3821 obtainable from other Subcontractors, suppliers, manufacturers, and distributors in the area of the Project site. All discounts, rebates, and refunds and all returns from sale of surplus materials and consumable items shall accrue to CMWD and Design Build Entity shall make provisions so that they may be obtained . . 6 Sales taxes on the costs of materials and consumable items which are incorporated into and used in the performance of the Extra Work pursuant to Article 7.3.2.5 above . . 7 Rental charges for necessary machinery and equipment, whether owned or hired, as authorized in writing by CMWD's Representative, exclusive of hand tools, used directly in the performance of the Extra Work. Such rental charges shall not exceed the current Equipment Rental Rates published by the California Department of Transportation for the area in which the work is performed. Such rental rates are found at http://www.dot.ca.gov/hq/construc/equipmnt.html . Design Build Entity shall attach a copy of said schedule to the Cost Proposal. The charges for any machinery and equipment shall cease when the use thereof is no longer necessary for the Extra Work . . 8 Additional costs of royalties and permits due to the performance of the Extra Work . . 9 Cost for revisions in the Construction Documents, when such revisions are inconsistent with approvals or instructions previously given by CMWD. Revisions made necessary by adjustments in CMWD's program or project budget such costs to be computed at the hourly rates specified in the Design Professional Rate Schedule in the Contract Documents . . 10 The cost for Insurance and Bonds shall be actual and mirror overall contract terms .1 through .9 above. CMWD and Design Build Entity may agree upon rates to be charged for any of the items listed in this Article 7.3.2. Such agreed upon rates shall be subject to audit pursuant to Article 15.7 of the General Conditions. Design Build Entity shall promptly refund to CMWD any amounts (including associated mark-ups) in excess of the actual costs of such items. 7.3.3 Cost of Extra Work shall not include any ofthe following: .1 Superintendent(s) .2 Assistant Superintendent(s) .3 Project Engineer(s) .4 Project Manager(s) .5 Scheduler(s) .6 Estimator(s) .7 Small tools (Replacement value does not exceed $300) .8 Office expenses including staff, materials and supplies . . 9 On-site or off-site trailer and storage rental and expenses . . 1 o Site fencing . . 11 Utilities including gas, electric, sewer, water, telephone, facsimile, copier equipment, internet. Page 44 of 73 General Conditions (earls bad Municipal Water District Palm Grove Removal and Native Plant Restoration Project No. 3821 .12 Data processing personnel and equipment . . 13 Federal, state, or local business income and franchise taxes . . 14 Overhead and Profit. .15 Costs and expenses of any kind or item not specifically and expressly included in Article 7.3.2 above . . 16 Costs in Article 7.3.2.9 in excess of the hourly rates included in the Design Professional Rate Schedule. 7.3.4 The term "Design Build Entity Fee" shall mean the full amount of compensation, both direct and indirect (including without limitation all overhead and profit), to be paid to Design Build Entity for its own Work and the Work of all Subcontractors, for all costs and expenses not included in the Cost of Extra Work, whether or not such costs and expenses are specifically referred to in Article 7.3.3 above. The Design Build Entity Fee shall not be compounded. The Design Build Entity Fee shall be computed as follows when the change impacts the Construction Work, or for the portion of the change that is related to Construction Work: .1 Ten percent (10%) of the cost of that portion of the Extra Work to be performed by the Design Build Entity with its own forces . . 2 Ten percent (10%) of the cost of that portion of the Work to be performed by a Subcontractor with its own forces, plus 5% for the Design Build Entity. Total combined Design Build Entity and Subcontractor fee shall not exceed 15% . . 3 Ten percent (10%) of the cost of that portion of the Work to be performed by a sub-Subcontractor or any lower tier of Subcontractor with its own forces, plus 5% for the Subcontractors, plus 5% for the Design Build Entity. Total combined Design Build Entity, Subcontractor and all sub-Subcontractor fees shall not exceed 20% . .4 Notwithstanding the foregoing, the Design Build Entity Fee for additional Design Work under 7.3.2.9 of the General Conditions shall be 3% of the cost of such additional Design Work performed by a Design Professional. The cost of such additional Design Work shall be computed using the hourly rates in the Standard Forms. The fee for the Design Professional Subcontractors shall be the overhead/profit rate specified in the Design Professional Rate Schedule. 7.3.5 Compensation for Extra Work shall be computed on the basis of one or more of the following: .1 Where the Work involved is covered by Unit Prices contained in the Contract Documents, by application of the Unit Prices to the quantities of the items involved . . 2 Where the Work involved is not covered in the RFP or by Unit Prices contained in the Contract Documents, by application of the Unit Prices in 2012 RS Means Cost Data multiplied by the quantity to be adjusted multiplied by the appropriate adjustment factor . . 3 Where the Work involved requires revisions to the Construction Documents when such revisions are inconsistent with approvals or instructions previously given by CMWD, including revisions made necessary by adjustments in CMWD's program or project budget, by application of the hourly rates reflected in the Design Professional Rate Schedule. Page 45 of 73 General Conditions (earls bad Municipal Water District Palm Grove Removal and Native Plant Restoration Project No. 3821 .4 Where Articles 7.3.5.1, 7.3.5.2 and 7.3.5.3 above are not applicable, a mutually agreed upon lump sum supported by a Cost Proposal pursuant to Article 7.3.1 of the General Conditions . . 5 If CMWD and Design Build Entity cannot agree upon a lump sum , by Cost of Extra Work plus Design Build Entity Fee applicable to such Extra Work. 7.3.6 As a condition to Design Build Entity's right to an adjustment of the Contract Sum, pursuant to Article 7.3.5.5 above, Design Build Entity must keep daily detailed and accurate records itemizing each element of cost and shall provide substantiating records and documentation, including time cards and invoices. Such records and documentation shall be submitted to and approved by CMWD's Representative on a daily basis. 7.3.7 For Work to be deleted by Change Order, the reduction of the Contract Sum shall be computed on the basis of one or more of the following: .1 Unit Prices stated in the Contract Documents . . 2 Unit Prices agreed upon by CMWD and Design Build Entity . . 3 Where Unit Prices are not applicable, a lump sum agreed upon by CMWD and Design Build Entity, based upon the actual costs which would have been incurred in performing the deleted portions of the Work as calculated in accordance with Articles 7.3.2 and 7.3.3 above and supported by a Cost Proposal pursuant to Article 7.3.1 above. 7.3.8 If any one Change involves both Extra Work and Deleted Work in the same portion of the Work, a Design Build Entity Fee will not be allowed if the deductive cost exceeds the additive cost. If the additive cost exceeds the deductive cost, a Design Build Entity Fee will be allowed only on the difference between the two amounts. 7.3.9 The Contract Sum will be adjusted for a delay if, and only if, Design Build Entity demonstrates that all of the following four conditions are met: .1 Condition Number One: The delay results in an extension of the Contract Time pursuant to Article 8.4.1 of the General Conditions . . 2 Condition Number Two: The delay is caused solely by one, or more of the following: .1 An error or omission in the Contract Documents caused by CMWD and not as a result of Design Build Entity's failure to conform to criteria documents, performance standards, Construction Documents, or Contract Documents; or .2 CMWD's decision to change the scope of the Work, where such decision is not the result of any default or misconduct of the Design Build Entity; or .3 CMWD's decision to suspend the Work, where such decision is not the result of any default or misconduct of the Design Build Entity; or .4 The failure of CMWD (including CMWD acting through its consultants, Design Professionals, Page 46 of 73 General Conditions (Carlsbad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 Separate Contractors or CMWD's Representative) to perform any Contract obligation where the failure to so perform is not the result of any default or misconduct of the Design Build Entity . . 5 A materially differing site condition pursuant to Article 3.25 ofthe General Conditions . . 3 Condition Number Three: The delay is not concurrent with a delay that is caused by an event other than those listed in Article 7.3.9.2 above . .4 Condition Number Four: The delay is not caused, in whole or in part, by an event which occurs during the performance of completing the construction drawings. 7.3.10 For each day of delay that meets all four conditions prescribed in Article 7.3.9 above, the Contract Sum will be adjusted by the daily rate included in the Agreement and specifically identified as the rate to be paid to Design Build Entity for Compensable Delays as agreed upon for the applicable Phase. Pursuant to Article 9.7.4 of the General Conditions, said daily rate shall not apply to delays occurring after Substantial Completion. 7.3.11 Except as provided in Articles 7 and 8, Design Build Entity shall have no claim for damage or compensation for any delay, interruption, hindrance, or disruption. 7.3.12 If for any reason one or more of the conditions prescribed in Article 7.3.9 above is held legally unenforceable, the remaining conditions must be met as a condition to obtaining an adjustment of the Contract Time under Article 7.3.10 above. 7.4 FIELD ORDERS 7.4.1 Field Orders issued by CMWD's Representative shall be subject to the following: .1 A Field Order may state that it does or does not constitute a change in the Work . . 2 If the Field Order states that it does not constitute a change in the Work and the Design Build Entity asserts that the Field Order constitutes a change in the Work, in order to obtain an adjustment of the Contract Sum or Contract Time for the Work encompassed by the Field Order, Design Build Entity must follow all procedures set forth in Article 4 of the General Conditions, starting with the requirement of submitting a timely Change Order Request within 7 days of Design Build Entity's receipt ofthe Field Order; failure to strictly follow those procedures is a bar to any Claim for an adjustment of the Contract Sum or Contract Time arising from performance ofthe Work described in the Field Order . . 3 If the Field Order states that it does constitute a change in the Work, the Work described in the Field Order shall be considered Extra Work and the Design Build Entity shall be entitled to an adjustment of the Contract Sum and Contract Time, calculated under and subject to Design Build Entity's compliance with the procedures for verifying and substantiating costs and delays in Articles 7 and 8 of the General Conditions . .4 In addition, if the Field Order states that it does constitute a change in the Work, the Field Order may or may not contain CMWD's estimate of adjustment of Contract Sum and/or Contract Time. If the Page 47 of73 General Conditions (car ls bad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 Field Order contains an estimate of adjustment of Contract Sum or Contract Time, the Field Order is subject to the following: .1 The Design Build Entity shall not exceed CMWD's estimate of adjustment to Contract Sum or Contract Time without written authorization by CMWD's Representative . . 2 If the Design Build Entity asserts that the change in the Work encompassed by the Field Order may entitle Design Build Entity to an adjustment of Contract Sum or Contract Time in excess of CMWD's estimate, in order not to be bound by CMWD's estimate Design Build Entity must follow all procedures set forth in Article 4 of the General Conditions, starting with the requirement of submitting a timely Change Order Request within 7 days of Design Build Entity's receipt of the Field Order; failure to strictly follow those procedures is a bar to any Claim for an adjustment of the Contract Sum or Contract Time, in excess of CMWD's estimate, arising from performance of the Work described in the Field Order. 7.4.2 Upon receipt of a Field Order, Design Build Entity shall promptly proceed to perform the Work as ordered in the Field Order notwithstanding any disagreement by the Design Build Entity concerning whether the Work is extra. 7.5 VARIATION IN QUANTITY OF UNIT PRICE WORK 7.5.1 CMWD has the right to increase or decrease the quantity of any Unit price item for which an estimated quantity is stated in the Bid Form. 7.6 WAIVER 7.6.1 A waiver of, or failure by, CMWD or CMWD's Representative to enforce any requirement in this Article 7, including, without limitation, the requirements in Articles 7.3.6, 7.3.8, 7.3.9, 7.3.10, 7.3.11, or 7.3.12 in connection with any adjustment of the Contract Sum, will not constitute a waiver of, and will not preclude CMWD, or CMWD's Representative, from enforcing such requirements in connection with any other adjustments of the Contract Sum. 7.6.2 The Design Build Entity agrees and understands that no oral approval, either express or implied, of any adjustment of the Contract Sum by CMWD or its agents shall be binding upon CMWD unless and until such approval is ratified by execution of a written change order. ARTICLE 8 CONTRACT TIME 8.1 COMMENCEMENT OF THE WORK 8.1.1 The date of commencement of the Phase of the Work shall be set forth in the applicable Notice To Proceed. The date of commencement of the Work shall not be postponed by the failure of Design Build Entity, Subcontractors, or of persons or firms for whom Design Build Entity is responsible, to act. Prior to receiving Notice Page 48 of 73 General Conditions Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 to Proceed, Design Build Entity shall provide evidence of insurance as required in Article 11 of the General Conditions, execute this Agreement and deliver the Guaranty and the Performance and Payment Bonds, and deliver a legal opinion from Design Build Entity and Project Guarantor's legal counsel as to corporate status, no conflict, no material litigation, and the valid, binding, and enforceable nature of the Agreement and the Guaranty. 8.2 PROGRESS AND COMPLETION 8.2.1 By signing the Agreement: .1 Design Build Entity represents to CMWD that the Contract Time is reasonable for performing the Work and that Design Build Entity is able to perform the Work within the Contract Time . . 2 Design Build Entity agrees that CMWD is purchasing the right to have the Design Build Entity present on the Project site for the full duration of the Contract Time for construction, even if Design Build Entity could finish the Work in less than the Contract Time. 8.2.2 Design Build Entity shall not, except by agreement or instruction of CMWD in writing, commence operations on the Project site or elsewhere prior to the effective date of insurance required by Article 11 of the General Conditions to be furnished by Design Build Entity. The dates of commencement and Final Completion of the Work shall not be changed by the effective date of such insurance. 8.2.3 Design Build Entity shall proceed expeditiously with adequate forces and shall achieve Final Completion of the Work within the Contract Time. If CMWD's Representative determines and notifies Design Build Entity that Design Build Entity's progress is such that Design Build Entity will not achieve Final Completion of the Work within the Contract Time, Design Build Entity shall immediately and at no additional cost to CMWD, take all measures necessary, including working such overtime, additional shifts, Sundays, or holidays as may be required to ensure that Design Build Entity will achieve Final completion of the Work within the Contract Time. Upon receipt of such notice from CMWD's Representative, Design Build Entity shall immediately notify CMWD's Representative of all measures to be taken to ensure Final Completion of the Work within the Contract Time. Design Build Entity shall reimburse CMWD for any extra costs or expenses (including the reasonable value of any services provided by CMWD's employees) incurred by CMWD as the result of such measures. 8.3 DELAY 8.3.1 Except and only to the extent provided otherwise in Articles 7 and 8 of the General Conditions, by signing the Agreement, Design Build Entity agrees: .1 To bear the risk of delays to the Work; and .2 That Design Build Entity's Proposal for the Contract was made with full knowledge of this risk. 8.3.2 In agreeing to bear the risk of delays to the Work, Design Build Entity understands that, except and only to the extent provided otherwise in Articles 7 and 8 of the General Conditions, the occurrence of events that delay the Work shall not excuse Design Build Entity from its obligation to achieve Final Completion of the Work within the Contract Time, and shall not entitle the Design Build Entity to an adjustment of the Contract Sum. 8.4 ADJUSTMENT OF THE CONTRACT TIME FOR DELAY Page 49 of 73 General Conditions Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 8.4.1 Subject to Article 8.4.2 below, the Contract Time will be extended for each day of delay for which Design Build Entity demonstrates that all of the following four conditions have been met; a time extension will not be granted for any day of delay for which Design Build Entity fails to demonstrate compliance with the four conditions: .1 Condition Number One: The delay is critical. A delay is critical if and only to the extent it delays a work activity that cannot be delayed without delaying Final Completion of the Work to a date that is beyond the Contract Time. The Baseline Contract shall be the basis for determining the critical path activities . . 2 Condition Number Two: Within 7 days of the date the Design Build Entity discovers or reasonably should discover an act, error, omission or unforeseen condition or event causing the delay is likely to have an impact on the critical path of the Project, (even if the Design Build Entity has not yet been delayed when the Design Build Entity discovers or reasonably should discover the critical path impact of the act, error, omission or unforeseen condition giving rise to the delay) the Design Build Entity submits a timely and complete Change Order Request that meets the requirements of Article 4.2 of the General Conditions . . 3 Condition Number Three: The delay is not caused by: .1 A concealed, unforeseen or unknown condition or event except for a materially differing site condition pursuant to Article 3.25 of the General Conditions; or .2 The financial inability, misconduct or default of the Design Build Entity, a Subcontractor or supplier; or .3 The unavailability of materials or parts; or .4 An error or omission in the Contract Documents caused by Design Build Entity or Design Build Entity's Design Consultants . .4 Condition Number Four: The delay is caused by: .1 Fire; or .2 Strikes, boycotts, or like obstructive actions by labor organizations; or .3 Acts of God (As used herein, "Acts of God" shall include only earthquakes in excess of a magnitude of 3.5 on the Richter Scale and tidal waves); or .4 A materially differing site condition pursuant to Article 3.25 of the General Conditions; or .5 An error or omission in the Contract Documents caused by CMWD; or .6 CMWD's decision to change the scope of the Work, where such decision is not the result of any default or misconduct of the Design Build Entity; or Page 50 of 73 General Conditions (earls bad Municipal Water District .7 .8 .9 Palm Grove Removal and Native Plant Restoration Project No. 3821 CMWD's decision to suspend the Work, where such decision is not the result of any default or misconduct of the Design Build Entity; or The failure of CMWD (including CMWD acting through its consultants, Design Professionals, Separate Contractors or CMWD's Representative) to perform any Contract obligation unless such failure is due to Design Build Entity's default or misconduct; or "Adverse weather" but only for such days of adverse weather, or on-site conditions caused by adverse weather, as requested by the Design Build Entity and approved by the CMWD Representative. In order for a day to be considered a day of adverse weather for the purpose of determining whether Design Build Entity is entitled to an adjustment in Contract Time, both of the following conditions must be met: .1 The day must be a day in which, as a result of adverse weather, less than one half day of critical path work is performed by Design Build Entity; and .2 The day must be identified in the Contract Schedule as a scheduled work day. 8.4.2 If and only if a delay meets all four conditions prescribed in Article 8.4.1 above, then a time extension will be granted for each day that Final Completion of the Work is delayed beyond the Contract Time, subject to the following: .1 When two or more delays (each of which meet all four conditions prescribed in Article 8.4.1 above) occur concurrently on the same day, and each such concurrent delay by itself without consideration of the other delays would be critical, then all such concurrent delays shall be considered critical. For the purpose of determining whether and to what extent the Contract Time should be adjusted pursuant to this Article 8.4.2, such concurrent critical delays shall be treated as a single delay for each such day . . 2 Design Build Entity shall be entitled to a time extension for a day of delay that meets all four requirements of Article 8.4.1 above if the delay is concurrent with a delay that does not meet all four conditions of Article 8.4.1 above. 8.4.3 If for any reason one or more of the four conditions prescribed in Article 8.4.1 above is held legally unenforceable, then all remaining conditions must be met as a condition to obtaining an extension of the Contract Time under Article 8.4.2 above. 8.5 COMPENSATION FOR DELAY 8.5.1 To the maximum extent allowed by law, any adjustment of the Contract Sum as the result of delays shall be limited to the amounts specified in Article 7 of the General Conditions. Such adjustment shall, to the maximum extent allowed by law, constitute payment in full for all delay related costs (including costs for disruption, interruption and hindrance, general conditions, on and off-site overhead and profit) of Design Build Entity, its Suppliers and Subcontractors of all tiers and all persons and entities working under or claiming through Design Build Entity in connection with the Project. Page 51 of 73 General Conditions Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 8.5.2 By signing the Agreement, the parties agree that CMWD is buying the right to do any or all of the following, which are reasonable and within the contemplation of the parties: .1 To order changes in the Work, regardless of the extent and number of changes, including without limitation: .1 Changes to correct errors or omissions caused by CMWD, if any, in the Contract Documents . . 2 Changes resulting from CMWD's decision to change the scope of the Work subsequent to execution of the Contract . . 3 Changes due to unforeseen conditions . . 2 To suspend the Work or any part thereof . . 3 To delay the Work, including without limitation, delays resulting from the failure of CMWD or CMWD's Representative to timely perform any Contract obligation and delays for CMWD's convenience. 8.6 WAIVER 8.6.1 A waiver of, or failure by, CMWD or CMWD's Representative to enforce any requirement in this Article 8, including without limitation the requirements in Article 8.4 above, in connection with any or all past delays shall not constitute a waiver of, and shall not preclude CMWD or CMWD's Representative from enforcing, such requirements in connection with any present or future delays. 8.6.2 Design Build Entity agrees and understands that no oral approval, either express or implied, of any time extension by CMWD or its agents shall be binding upon CMWD unless and until such approval is ratified by execution of a written Change Order. ARTICLE 9 PAYMENTS AND COMPLETION 9.1 COST BREAKDOWN 9.1.1 Within 10 days after receipt of the Construction Notice to Proceed for Phase 2, Design Build Entity shall submit to CMWD's Representative a Cost Breakdown of the Contract Sum in the form contained in the Standard Forms. The Cost Breakdown shall itemize as separate line items the cost of each work activity and all associated costs, including but not limited to warranties, as-built documents, overhead expenses, and the total allowance for profit. Insurance and bonds shall each be listed as separate line items. The total of all line items shall equal the Contract Sum. The Cost Breakdown, when approved by CMWD's Representative, shall become the basis for determining the cost of Work performed for Design Build Entity's Applications for Payment. 9.2 PROGRESS PAYMENT 9.2.1 CMWD agrees to pay monthly to Design Build Entity, subject to Article 9.4.3 of the General Conditions, Page 52 of 73 General Conditions {earls bad Municipal Water District Palm Grove Removal and Native Plant Restoration Project No. 3821 an amount equal to 95% of the sum ofthe following: .1 Cost of the Construction Work in permanent place as of the date of the Design Build Entity's Application For Payment . . 2 Cost of materials not yet incorporated in the Construction Work, subject to Article 9.3.4 of the General Conditions . . 3 Less amounts previously paid . .4 During the Design Work, CMWD shall pay Design Build Entity monthly a uniform amount prorated, based on the Contract Time and Contract Sum. Under this Article 9.2.1, CMWD may, but is not required to, pay Design Build Entity more frequently than monthly. 9.2.2 After Substantial Completion and subject to Article 9.4.3 of the General Conditions, CMWD will make any of the remaining progress payments in full. 9.3 APPLICATION FOR PAYMENT 9.3.1 On or before the 5th day of the month or such other date as is established by the Contract Documents, Design Build Entity shall submit to CMWD's Representative an itemized Application For Payment, for the cost of the Work in permanent place, as approved by CMWD's Representative, which has been completed in accordance with the Contract Documents, less amounts previously paid. The Application For Payment shall be prepared as follows: .1 Use the form contained in the Standard Forms . . 2 Itemize in accordance with the Cost Breakdown as applicable . . 3 Include such data substantiating Design Build Entity's right to payment as CMWD's Representative may reasonably require, such as invoices, certified payrolls, daily time and material records, and, if securities are deposited in lieu of retention pursuant to Article 9.5 of the General Conditions, a certification of the market value of all such securities as of a date not earlier than 5 days prior to the date of the Application For Payment as applicable . .4 Itemize retention. 9.3.2 Applications For Payment shall not include requests for payment on account of (1) changes which have not been authorized by Change Orders or (2) amounts Design Build Entity does not intend to pay a Subcontractor because of a dispute or other reason. If required by CMWD, an Application For Payment shall be accompanied by (1) a summary showing payments that will be made to Subcontractors covered by such application and conditional releases upon progress payment or final payment and (2) unconditional waivers and releases of claims and stop payment notices, in the form contained in the Standard Forms, from each Subcontractor listed in the preceding Application For Payment covering sums disbursed pursuant to that preceding Application For Payment. Page 53 of 73 General Conditions arlsbad Municipal Water District Palm Grove Removal and Native Plant Restoration Project No. 3821 9.3.3 Design Build Entity warrants that, upon submittal of an Application For Payment, all Work, for which Certificates For Payment have been previously issued and payment has been received from CMWD, shall be free and clear of all claims, stop payment notices, security interests, and encumbrances in favor of Design Build Entity, Subcontractors, or other persons or firms entitled to make claims by reason of having provided labor, materials, or equipment relating to the Work. 9.3.4 At the sole discretion of CMWD, CMWD's Representative may approve for inclusion in the Application For Payment the cost of materials not yet incorporated in the Construction Work but already delivered and suitably stored either at the Project site or at some other appropriate location acceptable to CMWD's Representative. In such case, Design Build Entity shall furnish evidence satisfactory to CMWD's Representative (1) of the cost of such materials; and (2) that such materials are under the exclusive control of Design Build Entity. Only materials to be incorporated in the Work will be considered for payment. Any payment shall not be construed as acceptance of such materials nor relieve Design Build Entity from sole responsibility for the care and protection of such materials; nor relieve Design Build Entity from risk of loss to such materials from any cause whatsoever; nor relieve Design Build Entity from its obligation to complete the Work in accordance with the Contract; nor act as a waiver of the right of CMWD to require fulfillment of all terms of the Contract. Nothing contained within this Article 9.3.4 shall be deemed to obligate CMWD to agree to payment for any non- incorporated materials or any part thereof, payment being in the sole and absolute discretion of CMWD. 9.4 CERTIFICATE FOR PAYMENT 9.4.1 If Design Build Entity has submitted an Application For Payment in accordance with Article 9.3 above, CMWD's Representative shall, not later than 5 working days after the date of receipt of the Application For Payment, issue to CMWD's Responsible Administrator, with a copy to Design Build Entity, a Certificate For Payment for such amount as CMWD's Representative determines to be properly due. 9.4.2 If any such Application For Payment is determined not to be in accordance with Article 9.3 above, CMWD will inform Design Build Entity as soon as practicable, but not later than 5 working days after receipt. Thereafter, Design Build Entity shall have 3 days to revise and resubmit such Application For Payment; otherwise CMWD's Representative may issue a Certificate For Payment in the amount that CMWD's Representative determines to be properly due without regard to such Application For Payment. 9.4.3 Approval of all or any part of an Application For Payment may be withheld, a Certificate For Payment may be withheld, and all or part of a previous Certificate For Payment may be nullified and that amount withheld from a current Certificate For Payment on account of any of the following: .1 Defective Work not remedied . . 2 Third-party claims against Design Build Entity or CMWD arising from the acts or omissions of Design Build Entity or Subcontractors . . 3 Stop payment notices . .4 Failure of Design Build Entity to make timely payments due Subcontractors. (Stop payment notices are withheld at 1.25% per Public Contract Code) .5 A reasonable doubt that the Work can be completed for the balance of the Contract Sum then Page 54 of 73 General Conditions (earls bad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 unpaid . . 6 Damage to CMWD or Separate Contractor for which Design Build Entity is responsible . . 7 Reasonable evidence that the Work will not be completed within the Contract Time; and that the unpaid balance of the Contract Sum would not be adequate to cover CMWD's damages for the anticipated delay . . 8 Failure of Design Build Entity to maintain and update as-built documents . . 9 Failure of Design Build Entity to submit schedules or their updates as required by the Contract Documents . . 10 Failure to provide conditional or unconditional releases from any Subcontractor or supplier, if such waiver(s) have been requested by CMWD's Representative . . 11 Performance of Work by Design Build Entity without properly processed Shop Drawings . . 12 Liquidated damages assessed in accordance with the Contract Documents . . 13 Failure to provide updated Reports of Subcontractor Information and Self-Certifications, as applicable . . 14 Failure to provide a Final Distribution of Contract Dollars with final Application for Payment . . 15 Any other failure of Design Build Entity to perform its obligations under the Contract Documents. 9.4.4 Subject to the withholding provisions of Article 9.4.3 of the General Conditions, CMWD will pay Design Build Entity the amount set forth in the Certificate For Payment on the last Thursday of the month after the issuance of the Certificate For Payment. 9.4.5 Neither CMWD nor CMWD's Representative will have an obligation to pay or to see to the payment of money to a Subcontractor, except as may otherwise be required by law. 9.4.6 Neither a Certificate for Payment nor a progress payment made by CMWD will constitute acceptance of Defective Work. 9.5 DEPOSIT OF SECURITIES IN LIEU OF RETENTION AND DEPOSIT OF RETENTION INTO ESCROW 9.5.1 At the request and expense of Design Build Entity, a substitution of securities may be made for any monies retained by CMWD under Article 9.2 to ensure performance under the Contract Documents. Securities equivalent in value to the retention amount required by the Contract Documents for each Certificate For Payment shall be deposited by Design Build Entity with a state or federally chartered bank in the State of California ("Escrow Agent"), which shall hold such securities pursuant to the escrow agreement referred to in Article 9.5.3 until retention is due in accordance with Article 9.8. Securities shall be valued as often as conditions of the securities market warrant, but in no case less than once per month. Design Build Entity shall deposit additional securities so that the current market value of the total of all deposited securities shall be at least equal to the total required amount of retention. Page 55 of 73 General Conditions {earls bad Municipal Water District Palm Grove Removal and Native Plant Restoration Project No. 3821 9.5.2 Alternatively to Article 9.5.1 above, and at the request and expense of Design Build Entity, CMWD will deposit retention directly with Escrow Agent. Design Build Entity may direct the investment of such deposited retention into interest bearing accounts or securities, and such deposits or securities shall be held by Escrow Agent upon the same terms provided for securities deposited by Design Build Entity. Design Build Entity and its surety shall bear the risk of failure of the Escrow Agent selected. 9.5.3 A prerequisite to the substitution of securities in lieu of retention or the deposit of retention into escrow shall be the execution by Design Build Entity, CMWD, and Escrow Agent of an Escrow Agreement for Deposit of Securities in Lieu of Retention and Deposit of Retention in the form contained in the Standard Forms. The Design Build Entity shall submit the Selection of Retention Options and the Escrow Agreement for Deposit of Securities in Lieu of Retention and Deposit of Retention not later than the date when 50% of the Work has been completed. The terms of such escrow agreement are incorporated into the requirements of this Article 9.5. 9.6 BENEFICIAL OCCUPANCY 9.6.1 CMWD reserves the right, at its option and convenience, to occupy or otherwise make use of any part of the Construction Work at any time prior to Substantial Completion or Final Completion upon 10 days' notice to Design Build Entity. Such occupancy or use is herein referred to as "Beneficial Occupancy." Beneficial Occupancy shall be subject to the following conditions: .1 CMWD's Representative will make an inspection of the portion of the Project to be beneficially occupied and prepare a list of items to be completed or corrected prior to Final Completion. Prior to Beneficial Occupancy, CMWD will issue a Certificate of Beneficial Occupancy on CMWD's form . . 2 Beneficial Occupancy by CMWD shall not be construed by Design Build Entity as an acceptance by CMWD of that portion of the Construction Work which is to be occupied . . 3 Beneficial Occupancy by CMWD shall not constitute a waiver of existing claims of CMWD or Design Build Entity against each other . .4 Design Build Entity shall provide, in the areas beneficially occupied and on a 24 hour and 7 day week basis as required, utility services, heating, and cooling for systems which are in operable condition at the time of Beneficial Occupancy. All responsibility for the operation and maintenance of equipment shall remain with Design Build Entity while the equipment is so operated. Design Build Entity shall submit to CMWD an itemized list of each piece of equipment so operated with the date operation commences. The Guarantee to Repair Periods, as defined in Article 12.2, will commence upon the occupancy date stated in the Certificate of Beneficial Occupancy except that the Guarantee to Repair Periods for that part of equipment or systems that serve portions of the Work for which CMWD has not taken Beneficial Occupancy or issued a Certificate of Substantial Completion shall not commence until CMWD has taken Beneficial Occupancy for that portion of the Work or has issued a Certificate of Substantial Completion with respect to the entire Project . . 5 CMWD will pay all normal operating and maintenance costs resulting from its use of equipment in areas beneficially occupied. Page 56 of 73 General Conditions (earls bad Municipal Water District Palm Grove Removal and Native Plant Restoration Project No. 3821 .6 CMWD will pay all utility costs which arise out of the Beneficial Occupancy. All utility costs prior to Beneficial Occupancy shall be the Design Builder's responsibility . . 7 Design Build Entity shall not be responsible for providing security in areas beneficially occupied . . 8 CMWD will use its best efforts to prevent its Beneficial Occupancy from interfering with the conduct of Design Build Entity's remaining Work . . 9 Design Build Entity shall not be required to repair damage caused by CMWD in its Beneficial Occupancy . . 1 o Except as provided in this Article 9.6, there shall be no added cost to CMWD due to Beneficial Occupancy . . 11 Design Build Entity shall continue to maintain all insurance required by the Contract in full force and effect. 9.7 SUBSTANTIAL COMPLETION 9.7.1 "Substantial Completion" means the stage in the progress of the Construction Work, as determined by CMWD's Representative, when the Construction Work is complete and in accordance with the Contract Documents except only for completion of minor items which do not impair CMWD's ability to occupy and fully utilize the Construction Work for its intended purpose and a Certificate of Occupancy has been issued by CMWD's Representative. 9.7.2 When Design Build Entity gives notice to CMWD's Representative that the Construction Work is substantially complete, unless CMWD's Representative determines that the Construction Work is not sufficiently complete to warrant an inspection to determine Substantial Completion, CMWD's Representative will inspect the Construction Work. If CMWD's Representative determines that the Work is not substantially completed CMWD's Representative will prepare and give to Design Build Entity a comprehensive list of items to be completed or corrected before establishing Substantial Completion. Design Build Entity shall proceed promptly to complete and correct items on the list. Failure to include an item on such list does not alter the responsibility of Design Build Entity to complete all Construction Work in accordance with the Contract Documents. Upon notification that the items on the list are completed or corrected, as applicable, CMWD's Representative will make an inspection to determine whether the Construction Work is substantially complete. Costs for additional inspection by CMWD's Representative shall be deducted from any monies due and payable to Design Build Entity. 9.7.3 When CMWD's Representative determines that the Construction Work is substantially complete, CMWD's Representative will arrange for inspection by CMWD and other officials, as appropriate, for the purpose of issuing a Certificate of Occupancy. After a Certificate of Occupancy has been issued by all permitting and licensing entities, CMWD's Representative will prepare a Certificate of Substantial Completion on CMWD's form as contained in the Standard Forms, which, when signed by CMWD, shall establish the date of Substantial Completion and the responsibilities of CMWD and Design Build Entity for security, maintenance, utilities, insurance, and damage to the Construction Work. CMWD's Representative will prepare and furnish to the Design Build Entity a comprehensive "punch list" of items to be completed or corrected prior to Final Completion. Page 57 of 73 General Conditions Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 9.7.4 Unless otherwise provided in the Certificate of Substantial Completion, the Guarantee To Repair Period for the Work covered by the Certificate of Substantial Completion, shall commence on the date of Substantial Completion of the Construction Work except that Substantial Completion shall not commence the Guarantee to Repair Period for any equipment or systems that: .1 Are not operational (equipment or systems shall not be considered operational if they cannot be used the intended service; or .2 Are not accepted by CMWD. 9.7.5 The Guarantee to Repair Period for equipment or systems which become fully operational and accepted subsequent to Substantial Completion will begin on the date of their written acceptance by CMWD. 9.7.6 The daily rate included in the Agreement and specifically identified as the rate to be paid to Design Build Entity for Compensable Delays shall not apply to any delays occurring after the Work is substantially completed. 9.8 FINAL COMPLETION, FINAL PAYMENT, AND RELEASE OF RETENTION 9.8.1 Upon receipt of notice from Design Build Entity that the Work is ready for final inspection, CMWD's Representative will make such inspection. Final Completion shall be when CMWD's Representative determines that the Work is fully completed and in accordance with the Contract Documents, including without limitation, satisfaction of all "punch list" items, and determines that a Certificate of Occupancy has been issued by CMWD and all permitting and licensing entities. CMWD will file a Notice of Completion within 10 days after receiving CMWD Board authorization. After receipt of the final Application For Payment, if CMWD's Representative determines that Final Completion has occurred, CMWD's Representative will issue the final Certificate For Payment. Final Completion must occur within 90 days of Substantial Completion. Failure to achieve Final Completion within 90 days will change the Substantial Completion Date, causing Liquidated Damages to be assessed to the Design Build Entity for each calendar day Final Completion is delayed. 9.8.2 Final payment and retention shall be released to Design Build Entity, as set forth in Article 9.8.3, after: .1 Design Build Entity submits the final Application For Payment and all submittals required in accordance with Article 9.3; .2 Design Build Entity submits all guarantees and warranties procured by Design Build Entity from Subcontractors, all operating manuals for equipment installed in the Project, as-built documents, and all other submittals required by the Contract Documents; .3 CMWD's Representative issues the final Certificate For Payment. At its sole discretion, after Final Completion, CMWD may waive the requirement that Design Build Entity submit a final Application For Payment before making final payment and/or release of retention to Design Build Entity. 9.8.3 Final payment shall be paid not more than 30 days after CMWD's Representative issues the final Certificate For Payment. Retention shall be released to Design Build Entity 35 days after the filing of the Notice Page 58 of 73 General Conditions {earls bad Municipal Water District Palm Grove Removal and Native Plant Restoration Project No. 3821 of Completion. 9.8.4 Acceptance of final payment by Design Build Entity shall constitute a waiver of all claims, except claims for retention and claims previously made in writing and identified by Design Build Entity as unsettled at the time of the final Application For Payment. Neither final payment nor any remaining retained percentage shall become due until the Design Builder submits to CMWD {1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered {less amounts withheld by Owner) have been paid or otherwise satisfied, {2) a certificate evidencing that insurance required by the Contract Documents to remain in force after final payment is currently in effect and will not be canceled or allowed to expire until at least 30 days' prior written notice has been given to the Owner, (3) a written statement that the Design Builder knows of no substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents, (4) consent of surety, if any, to final payment and (5) if required by the Owner, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated by the Owner. If a Subcontractor refuses to furnish a release or waiver required by the Owner, the Design Builder may furnish a bond satisfactory to the Owner to indemnify the Owner against such lien, If such lien remains unsatisfied after payments are made, the Design Builder shall refund to the Owner all money that the Owner may be compelled to pay in discharging such lien, including all costs and reasonable attorneys' fees. Design Builder shall also furnish all warranties, guarantees, record documents, operating and maintenance manuals and shall have reviewed all equipment and facility operations and maintenance with the Owner, prior to issuance of the Certificate of Final Completion. ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY 10.1 SAFETY PRECAUTIONS AND PROGRAMS 10.1.1 Design Build Entity shall be solely responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of the Contract. 10.2 SAFETY OF PERSONS AND PROPERTY 10.2.1 Design Build Entity shall take adequate precautions for safety of and shall provide adequate protection to prevent damage, injury, or loss to the following: .1 Employees involved in the Construction Work and other persons who may be affected thereby . . 2 The Construction Work in place and materials and equipment to be incorporated therein, whether in storage on or off the Project site, under care, custody, or control of Design Build Entity or Subcontractors . . 3 Other property at the Project site and adjoining property, including portions of the Work at the Encina Water Pollution Control Facility, owned by Encina Wastewater Authority. 10.2.2 Design Build Entity shall erect and maintain, as required by existing conditions and performance of Page 59 of 73 General Conditions (Carlsbad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 the Work, adequate safeguards for safety and protection, including providing adequate lighting and ventilation, posting danger signs and other warnings against hazards, promulgating safety regulations, and notifying owners and users of adjacent sites and utilities. 10.2.3 When use or storage of explosives, other hazardous, materials, equipment, or unusual methods are necessary for execution of the Construction Work, Design Build Entity shall exercise the utmost care and carry on such activities only under the supervision of properly qualified personnel. 10.2.4 Design Build Entity shall designate a responsible member of Design Build Entity's organization at the Project site whose duty shall be the prevention of accidents. 10.2.5 Design Build Entity shall not load, or permit any part of the Construction Work or the Project site to be loaded, so as to endanger the safety of persons or property. 10.3 EMERGENCIES 10.3.1 In an emergency affecting the safety or condition of persons or property, Design Build Entity shall act to prevent or minimize damage, injury, or loss. Design Build Entity shall promptly notify CMWD's Representative, which notice may be oral followed by written confirmation, of the occurrence of such an emergency and Design Build Entity's action. ARTICLE 11 INSURANCE AND BONDS 11.1 DESIGN BUILDER'S INSURANCE 11.1.1 Design Builder shall, obtain, pay for and maintain, or cause to be obtained, paid for and maintained, insurance acceptable to CMWD that covers claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Design Builder, Design Builder's agents, representatives, employees, or Subcontractors. The cost of the required insurance is included in the contract price. No work shall start until compliance with all insurance requirements has been met and approved byCMWD. Coverages and Limits. Design Builder shall maintain the types of coverages and minimum limits indicated herein. If the Design Builder maintains higher limits than the minimums shown below, CMWD shall be entitled to coverage for higher limits maintained by the Design Builder. All policies will remain in full force and effect throughout the term of the Project and, when there is an extended reporting period, shall remain in effect for the time stipulated. 11.1.2 Coverages And Limits Contractor shall maintain the types of coverages and minimum limits indicted herein. The following policies and coverage shall be furnished by Design Builder: .1 COMMERCIAL FORM GENERAL LIABILITY INSURANCE: $2,000,000 combined single limit per occurrence for bodily injury and property damage. If the policy has an aggregate limit, a separate aggregate in the amounts specified shall be established for the risks for which the District or its agents, officers or employees are additional insured. Page 60 of 73 General Conditions Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 .2 BUSINESS AUTOMOBILE LIABILITY INSURANCE: $2,000,000 combined single limit per accident for bodily injury and property damage. In addition, the auto policy must cover any vehicle used in the performance of the contract, used onsite or offsite, whether owned, non-owned or hired, and whether scheduled or non-scheduled . . 3 WORKERS' COMPENSATION AND EMPLOYER'S LIABILITY INSURANCE: Workers' compensation limits as required by the Labor Code of the State of California and Employers' Liability limits of $1,000,000 per incident. Workers' compensation offered by the State Compensation Insurance Fund is acceptable to the District . .4 PROFESSIONAL LIABILITY INSURANCE: Errors and omissions liability appropriate to Contractor's profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a period of five years following the date of completion of the work . . 5 DESIGN BUILDERS' EQUIPMENT INSURANCE: Design Builder and all Subcontractors shall maintain insurance covering physical damage to owned, leased, rented, or borrowed equipment used or on the jobsite, including rental charges. All Design Builders' miscellaneous tools shall be covered by the individual Design Builder or Subcontractor. 11.1.3 Additional Provisions: Contractor shall ensure that the policies of insurance required under this agreement with the exception of Workers' Compensation and Business Automobile Liability Insurance contain, or are endorsed to contain, the following provisions. a. The District, its officials, employees and volunteers are to be covered as additional insured as respects: liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the contractor; premises owned, leased, hired or borrowed by the contractor. The coverage shall contain no special limitations on the scope of protection afforded to the District, its officials, employees or volunteers. All additional insured endorsements must be evidenced using separate documents attached to the certificate of insurance; one for each company affording general liability, and employers' liability coverage. b. The Contractor's insurance coverage shall be primary insurance as respects the District, its officials, employees and volunteers. Any insurance or self-insurance maintained by the District, its officials, employees or volunteers shall be in excess of the contractor's insurance and shall not contribute with it. c. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the District, its officials, employees or volunteers. d. Coverage shall state that the contractor'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. (C} Notice Of Cancellation. Each insurance policy required by this agreement shall be endorsed to state that coverage shall not be nonrenewed, suspended, voided, canceled, or reduced in coverage or limits except after ten {10) days' prior written notice has been sent to the District by certified mail, return receipt requested. (D) Deductibles And Self-Insured Retention {S.I.R.} Levels. Any deductibles or self-insured retention levels must be declared to and approved by the District. At the option ofthe District, either: the insurer shall reduce or eliminate such deductibles or self-insured retention levels as respects the District, its officials and employees; or the contractor .shall procure a bond guaranteeing payment of losses and related investigation, claim administration and defense expenses. Page 61 of 73 General Conditions (car ls bad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 (E) Waiver Of Subrogation. All policies of insurance required under this agreement shall contain a waiver of all rights of subrogation the insurer may have or may acquire against the District or any of its officials or employees. (F) Subcontractors. Contractor shall include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor. Coverages for subcontractors shall be subject to all of the requirements stated herein. (G) Acceptability Of Insurers. Insurance is to be placed with insurers that have a rating in Best's Key Rating Guide of at least A-:VII. Insurers must also be authorized to transact the business of insurance by the State of California Insurance Commissioner as admitted carriers as evidenced by a listing in the official publication of the Department of Insurance of the State of California and/or under the standards specified by City Council Policy# 70. (H) Verification Of Coverage. Contractor shall furnish the District with certificates of insurance and original endorsements affecting coverage required by this clause. 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 in forms approved by the District and are to be received and approved by the District before the Contract is executed by the District. {I} Cost Of Insurance. The Cost of all insurance required under this agreement shall be included in the Contractor's bid. 11.2 PERFORMANCE BOND AND PAYMENT BOND 11.2.1 Design Builder shall furnish bonds covering the faithful performance of the Contract (Performance Bond) and payment of obligations arising thereunder (Payment Bond) on the forms contained in the Standard Forms. 11.2.2 The Payment Bond and Performance Bond shall each be in the amount of the Lump Sum Cost Proposal. 11.2.3 The Payment Bond and Performance Bond shall be in effect on the date the Contract is signed by CMWD. 11.2.4 Design Builder shall promptly furnish such additional security as may be required by CMWD to protect its interests and those interests of persons or firms supplying labor or materials to the Work. Design Builder shall furnish supplemental Payment and Performance Bonds each in the amount of the current Contract Sum at the request of CMWD. 11.2.5 Surety companies used by Design Builder shall be, on the date the Contract is signed by CMWD, listed in the latest published State of California, Department of Insurance list of "Insurers Admitted to Transact Surety Insurance in This State." 11.2.6 The premiums for the Payment Bond and Performance Bond shall be paid by Design Builder. ARTICLE 12 UNCOVERING AND CORRECTION OF CONSTRUCTION WORK 12.1 UNCOVERING OF WORK Page 62 of 73 General Conditions arlsbad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 12.1.1 If a portion of the Construction Work is covered contrary to CMWD's Representative's request or direction, or contrary to the requirements of the Contract Documents, it must, if required in writing by CMWD's Representative, be uncovered for CMWD's Representative's observation and be replaced at Design Build Entity's expense without adjustment of the Contract Time or the Contract Sum. 12.1.2 If a portion of the Construction Work has been covered, which is not required by the Contract Documents to be observed or inspected prior to its being covered and which CMWD's Representative has not specifically requested to observe prior to its being covered, CMWD's Representative may request to see such Construction Work and it shall be uncovered and replaced by Design Build Entity. If such Construction Work is in accordance with the Contract Documents, the costs of uncovering and replacing the Construction Work shall be added to the Contract Sum by Change Order; and if the uncovering and replacing of the Construction Work extends the Contract Time, an appropriate adjustment of the Contract Time shall be made by Change Order. If such Construction Work is not in accordance with the Contract Documents, Design Build Entity shall pay such costs and shall not be entitled to an adjustment of the Contract Time or the Contract Sum. 12.2 CORRECTION OF DEFECTIVE WORK AND GUARANTEE TO REPAIR PERIOD 12.2.1 The term "Guarantee To Repair Period" means a period of 1 year, unless a longer period of time is specified, commencing as follows: .1 For any Construction Work not described as incomplete in the Certificate of Substantial Completion, on the date of Substantial Completion . . 2 For space beneficially occupied or for separate systems fully utilized prior to Substantial Completion pursuant to Article 9.6 of the General Conditions, from the first date of such Beneficial Occupancy or actual use, as established in a Certificate of Beneficial Occupancy . . 3 For all Construction Work other than .1 or .2 above, from the date of Final Completion. 12.2.2 Design Build Entity shall (1) correct Defective Work that becomes apparent during the progress of the Work or during the Guarantee To Repair Period, and (2) replace, repair, or restore to CMWD's satisfaction any other parts of the Work and any other real or personal property which is damaged or destroyed as a result of Defective Work or the correction of Defective Work. Design Build Entity shall promptly commence such correction, replacement, repair, or restoration upon notice from CMWD's Representative or CMWD, but in no case later than 10 days after receipt of such notice; and Design Build Entity shall diligently and continuously prosecute such correction to completion. Design Build Entity shall bear all costs of such correction, replacement, repair, or restoration, and all losses resulting from such Defective Work, including additional testing, inspection, and compensation for CMWD's Representative's services and expenses. Design Build Entity shall perform corrective Work at such times that are acceptable to CMWD and in such a manner as to avoid, to the extent practicable, disruption to CMWD's activities. 12.2.3 If immediate correction of Defective Work is required for life safety or the protection of property and is performed by CMWD or Separate Contractors, Design Build Entity shall pay to CMWD all reasonable costs of correcting such Defective Work. Design Build Entity shall replace, repair, or restore to CMWD's satisfaction any other parts of the Construction Work and any other real or personal property which is damaged or destroyed as a result of such Defective Work or the correction of such Defective Work. 12.2.4 Design Build Entity shall remove from the Project site portions of the Construction Work and materials Page 63 of 73 General Conditions arlsbad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 which are not in accordance with the Contract Documents and which are neither corrected by Design Build Entity nor accepted by CMWD. 12.2.5 If Design Build Entity fails to commence correction of Defective Work within 10 days after notice from CMWD or CMWD's Representative or fails to diligently prosecute such correction to completion, CMWD may correct the Defective Work in accordance with Article 2.4 of the General Conditions; and, in addition, CMWD may remove the Defective Work and store salvageable materials and equipment at Design Build Entity's expense. 12.2.6 If Design Build Entity fails to pay the costs of such removal and storage as required by above Articles 12.2.4 and 12.2.5 within 10 days after written demand, CMWD may, without prejudice to other remedies, sell such materials at auction or at private sale, or otherwise dispose of such material. Design Build Entity shall be entitled to the proceeds of such sale, if any, in excess of the costs and damages for which Design Build Entity is liable to CMWD, including compensation for CMWD's Representative's services and expenses. If such proceeds of sale do not cover costs and damages for which Design Build Entity is liable to CMWD, the Contract Sum shall be reduced by such deficiency. If there are no remaining payments due Design Build Entity or the remaining payments are insufficient to cover such deficiency, Design Build Entity shall promptly pay the difference to CMWD. 12.2.7 Design Build Entity's obligations under this Article 12 are in addition to, and not in limitation of, its warranty under Article 3.4 of the General Conditions or any other obligation of Design Build Entity under the Contract Documents. Enforcement of Design Build Entity's express warranties and guarantees to repair contained in the Contract Documents shall be in addition to and not in limitation of any other rights or remedies CMWD may have under the Contract Documents or at law or in equity for Defective Work. Nothing contained in this Article 12 shall be construed to establish a period of limitation with respect to other obligations of Design Build Entity under the Contract Documents. Establishment of the Guarantee To Repair Period relates only to the specific obligation of Design Build Entity to correct the Work and .in no way limits either Design Build Entity's liability for Defective Work or the time within which proceedings may be commenced to enforce Design Build Entity's obligations under the Contract Documents. ARTICLE 13 TERMINATION OR SUSPENSION OF THE CONTRACT 13.1 TERMINATION BY DESIGN BUILDER 13.1.1 Subject to below Article 13.1.2, Design Build Entity shall have the right to terminate the Contract only upon the occurrence of one of the following: .1 Provided that CMWD has not commenced reasonable action to remove any order of a court within the 90 day period, the Work is stopped for 90 consecutive days, through no act or fault of Design Build Entity, any Subcontractor, or any employee or agent of Design Build Entity or any Subcontractor, due to an issuance of an order of a court or other public authority having jurisdiction or due to an act of government, such as a declaration of a national emergency making material unavailable . . 2 CMWD fails to perform any material obligation under the Contract Documents and fails to cure such default within 30 days, or CMWD has not commenced to cure such default within 30 days Page 64 of 73 General Conditions (earls bad Palm Grove Removal and Native Plant Municipal water District Restoration Project No. 3821 where such cure will require a reasonable period beyond 30 days and diligently prosecutes the same to completion, after receipt of notice from Design Build Entity stating the nature of such default(s) . . 3 Repeated suspensions by CMWD, other than such suspensions as are agreed to by Design Build Entity under Article 13.3 below, which constitute in the aggregate more than 20% of the Contract Time. 13.1.2 Upon the occurrence of one of the events listed in Article 13.1.1 above, Design Build Entity may, upon 10 days additional notice to CMWD and CMWD's Representative, and provided that the condition giving rise to Design Build Entity's right to terminate is continuing, terminate the Contract. 13.1.3 Upon termination by Design Build Entity, CMWD will pay to Design Build Entity the sum determined by Article 13.4.4 of the General Conditions. Such payment will be the sole and exclusive remedy to which Design Build Entity is entitled in the event of termination of the Contract by Design Build Entity pursuant to this Article 13.1; and Design Build Entity will be entitled to no other compensation or damages and expressly waives the same. 13.2 TERMINATION BY CMWD FOR CAUSE 13.2.1 CMWD will have the right to terminate the Contract for cause at any time after the occurrence of any of the following events: .1 Design Build Entity becomes insolvent or files for relief under the bankruptcy laws of the United States . . 2 Design Build Entity makes a general assignment for the benefit of its creditors or fails to pay its debts as the same become due . . 3 A receiver is appointed to take charge of Design Build Entity's property . .4 The commencement or completion of any Work activity on the critical path is more than 30 days behind the date set forth in the Contract Schedule for such Work activity as a result of an Unexcusable Delay. For a contract with a Contract Time of less than 300 days, the 30-day period shall be reduced to the number of days commensurate with 10% of the Contract Time . . 5 Design Build Entity abandons the Work. 13.2.2 Upon the occurrence of any of the following events, CMWD will have the right to terminate the Contract for cause if Design Build Entity fails to promptly commence to cure such default and diligently prosecute such cure within 5 days after notice from CMWD: .1 Design Build Entity persistently or repeatedly refuses or fails to supply skilled supervisory personnel, an adequate number of properly skilled workers, proper materials, or necessary equipment to prosecute the Work in accordance with the Contract Documents . . 2 Design Build Entity fails to make prompt payment of amounts properly due Subcontractors after receiving payment from CMWD. Page 65 of 73 General Conditions (Carlsbad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 .3 Design Build Entity disregards Applicable Code Requirements . .4 Design Build Entity persistently or materially fails to execute the Work in accordance with the Contract Documents . . 5 Design Build Entity is in default of any other material obligation under the Contract Documents . . 6 Design Build Entity persistently or materially fails to comply with applicable safety requirements. 13.2.3 Upon any of the occurrences referred to in Articles 13.2.1 and 13.2.2 above, CMWD may, at its election and by notice to Design Build Entity, terminate the Contract and take possession of the Project site and all materials, supplies, equipment, tools, and construction equipment and machinery thereon owned by Design Build Entity; accept the assignment of any or all of the subcontracts; and then complete the Work by any method CMWD may deem expedient. If requested by CMWD, Design Build Entity shall remove any part or all of Design Build Entity's materials, supplies, equipment, tools, and construction equipment and machinery from the Project site within 7 days of such request; and if Design Build Entity fails to do so, CMWD may remove or store, and after 90 days sell, any of the same at Design Build Entity's expense. 13.2.4 If the Contract is terminated by CMWD as provided in this Article 13.2, Design Build Entity shall not be entitled to receive any further payment until the expiration of 35 days after Final Completion and acceptance of all Work by CMWD. 13.2.5 lfthe unpaid balance of the Contract Sum exceeds the cost of completing the Work, including all additional costs and expenses made necessary thereby, including costs for CMWD staff time, plus all losses sustained, including any liquidated damages provided under the Contract Documents, such excess shall be paid to Design Build Entity. If such costs, expenses, losses, and liquidated damages exceed the unpaid balance of the Contract Sum, Design Build Entity shall pay such excess to CMWD. 13.2.6 No termination or action taken by CMWD after termination shall prejudice any other rights or remedies of CMWD provided by law or by the Contract Documents upon such termination; and CMWD may proceed against Design Build Entity to recover all losses suffered by CMWD. 13.3 SUSPENSION BY CMWD FOR CONVENIENCE 13.3.1 CMWD may, at any time and from time to time, without cause, order Design Build Entity, in writing, to suspend, delay, or interrupt the Work in whole or in part for such period of time, up to 90 days, 'as CMWD may determine, with such period of suspension to be computed from the date of delivery of the written order. Such order shall be specifically identified as a "Suspension Order" under this Article 13.3. The Work may be stopped for such further period as the parties may agree. Upon receipt of a Suspension Order, Design Build Entity shall, at CMWD's expense, comply with its terms and take all reasonable steps to minimize costs allocable to the Work covered by the Suspension Order during the period of Work stoppage. Within 90 days after the issuance of the Suspension Order, or such extension to that period as is agreed upon by Design Build Entity and CMWD, CMWD shall either cancel the Suspension Order or delete the Work covered by such Suspension Order by issuing a Change Order. 13.3.2 If a Suspension Order is canceled or expires, Design Build Entity shall continue with the Work. A Change Order will be issued to cover any adjustments of the Contract Sum or the Contract Time necessarily caused by such suspension. Any Page 66 of 73 General Conditions (Carlsbad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 Claim by Design Build Entity for an adjustment of the Contract Sum or the Contract Time shall be made within 21 days after the end of the Work suspension. Design Build Entity agrees that submission of its claim within said 21 days is an express condition precedent to its right to Arbitrate or Litigate such a claim. 13.3.3 The provisions of this Article 13.3 shall not apply if a Suspension Order is not issued by CMWD. A Suspension Order shall not be required to stop the Work as permitted or required under any other provision of the Contract Documents. 13.4 TERMINATION BY CMWD FOR CONVENIENCE 13.4.1 CMWD may, at its option, terminate this Contract, in whole or from time to time in part, at any time by giving notice to Design Build Entity. Upon such termination, Design Build Entity agrees to waive any claims for damages, including loss of anticipated profits, on account thereof; and, as the sole right and remedy of Design Build Entity, CMWD shall pay Design Build Entity in accordance with Article 13.4.4 below. 13.4.2 Upon receipt of notice of termination under this Article 13.4, Design Build Entity shall, unless the notice directs otherwise, do the following: .1 Immediately discontinue the Work to the extent specified in the notice . . 2 Place no further orders or subcontracts for materials, equipment, services, or facilities, except as may be necessary for completion of such portion of the Work as is not discontinued . . 3 Promptly cancel, on the most favorable terms reasonably possible, all subcontracts to the extent they relate to the performance of the discontinued portion of the Work . .4 Thereafter, do only such Work as may be necessary to preserve and protect Work already in progress and to protect materials, plants, and equipment on the Project site or in transit thereto. 13.4.3 Upon such termination, the obligations of the Contract shall continue as to portions ofthe Work already performed and, subject to Design Build Entity's obligations under Article 13.4.2 above, as to bona fide obligations assumed by Design Build Entity prior to the date of termination. 13.4.4 Upon such termination, CMWD shall pay to Design Build Entity the sum of the following: .1 The amount of the Contract Sum allocable to the portion of the Work properly performed by Design Build Entity as of the date of termination, less sums previously paid to Design Build Entity . . 2 Plus any proven losses with respect to materials and equipment directly resulting from such termination . . 3 Plus reasonable demobilization costs . .4 Plus reasonable costs of preparing a statement of the aforesaid costs, expenses, and losses in connection with such termination. 13.4.5 The above payment shall be the sole and exclusive remedy to which Design Build Entity is entitled in Page 67 of 73 General Conditions Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 the event of termination of the Contract by CMWD pursuant to this Article 13.4; and Design Build Entity will be entitled to no other compensation or damages and expressly waives same. ARTICLE 14 STATUTORY AND OTHER REQUIREMENTS 14.1 NONDISCRIMINATION 14.1.1 For purposes of this Article 14.1, the term Subcontractor shall not include suppliers, manufacturers, or distributors. 14.1.2 Design Build Entity shall comply and shall ensure that all Subcontractors comply with Sections 12900 through 12996 of the State of California Government Code. 14.1.3 Design Build Entity agrees as follows during the performance of the Work: .1 Design Build Entity shall provide equal treatment to, and shall not willfully discriminate against or allow harassment of any employee or applicant for employment on the basis of: race; color; religion; sex; age; ancestry; national origin; sexual orientation; physical or mental disability; veteran's status; medical condition {as defined in Section 12926 of the State of California Government Code and including cancer-related medical conditions and or genetic characteristics); genetic information {as defined in the Genetic Information Nondiscrimination Act of 2008 and including family medical history); marital status; gender identity, pregnancy, or citizenship {within the limits imposed by law or CMWD's policy) or service in the uniformed services {as defined by the Uniformed Services Employment and Reemployment Rights Act of 1994). Design Build Entity will also take affirmative action to ensure that any such employee or applicant for employment is not discriminated against on any of the bases identified above. Such equal treatment shall apply, but not be limited to the following: employment; upgrade; demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Design Build Entity also agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this nondiscrimination clause. The Design Build Entity will, in all solicitations or advertisements for employees placed by or on behalf of the Design Build Entity, state that qualified applicants will receive consideration for employment without regard to: race; color; religion; sex; age; ancestry; national origin; sexual orientation; physical or mental disability; veteran's status; medical condition {as defined in Section 12926 of the State of California Government Code and including cancer-related medical conditions and or genetic characteristics); genetic information {as defined in the Genetic Information Nondiscrimination Act of 2008 and including family medical history); marital status; gender identity, pregnancy, or citizenship {within the limits imposed by law or CMWD's policy} or service in the uniformed services {as defined by the Uniformed Services Employment and Reemployment Rights Act of 1994). For purposes of this provision: (1) "Pregnancy" includes pregnancy, childbirth, and medical conditions related to pregnancy and childbirth; and {2} "Service in the uniformed services" includes membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services. Page 68 of 73 General Conditions arlsbad Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 .2 Design Build Entity and all Subcontractors will permit access to their records of employment, employment advertisements, application forms, and other pertinent data and records by CMWD or any appropriate agency of the State of California designated by CMWD for the purposes of investigation to ascertain compliance with this Article 14.1. The outcome of the investigation may result in the following: .1 A finding of willful violation of the provisions of this Contract or of the Fair Employment Practices Act may be regarded by CMWD as (1) a basis for determining that Design Build Entity is not a "responsible bidder" as to future contracts for which such Design Build Entity may submit bids, or (2) a basis for refusing to accept or consider the bids of Design Build Entity for future contracts . . 2 CMWD may deem a finding of willful violation of the Fair Employment Practices Act to have occurred upon receipt of written notice from the Fair Employment Practices Commission that it has (1) investigated and determined that Design Build Entity has violated the Fair Employment Practices Act, and (2) issued an order under the State of California Government Code Section 12970 or obtained an injunction under Government Code Section 12973 . . 3 Upon receipt of such written notice from the Fair Employment Practices Commission, CMWD may notify Design Build Entity that, unless it demonstrates to the satisfaction of CMWD within a stated period that the violation has been corrected, Design Build Entity's Proposals on future projects will not be considered . .4 Design Build Entity agrees that, should CMWD determine that Design Build Entity has not complied with this Article 14.1, Design Build Entity shall forfeit to CMWD, as a penalty, for each day or portion thereof, for each person who was denied employment as a result of such non-compliance Such penalty amounts may be recovered from Design Build Entity; and CMWD may deduct any such penalty amounts from the Contract Sum . . 5 Nothing contained in this Article 14.1 shall be construed in any manner so as to prevent CMWD from pursuing any other remedies that may be available at law . . 6 Design Build Entity shall meet the following standards for compliance and provide CMWD with satisfactory evidence of such compliance upon CMWD's request, which shall be evaluated in each case by CMWD: .1 Design Build Entity shall notify its Superintendent and other supervisory personnel of the nondiscrimination requirements of the Contract Documents and their responsibilities thereto . . 2 Design Build Entity shall notify all sources of employee referrals (including unions, employment agencies, and the State of California Department of Employment) of the nondiscrimination requirements of the Contract Documents by sending to such sources and by posting the Notice of Equal Employment Opportunity (EEO). Page 69 of 73 General Conditions Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 .3 Design Build Entity or its representative shall, through all unions with whom it may have agreements, develop agreements that (1) define responsibilities for nondiscrimination in hiring, referrals, upgrading, and training and (2) implement an affirmative nondiscrimination program, in terms ofthe unions' specific areas of skill and geography, such that qualified minority women, non-minority women, and minority men shall be available and given an equal opportunity for employment . .4 Design Build Entity shall notify CMWD of opposition to the nondiscrimination requirements of the Contract Documents by individuals, firms, or organizations during the term of the Contract. .7 During the performance of this contract, the recipient, Design Builder and its subcontractors shall not deny the contract's benefits to any person on the basis of religion, color, ethnic group identification, sex, age, physical or mental disability, nor shall they discriminate unlawfully against any employee or applicant for employment because of race, religion, color, national origin, ancestry, physical handicap, mental disabilitv. medical condition. sexual orientation. marital status. age (over 40) or sex. Labor Code Section 1735 requires as follows: The Design Builder shall not discriminate in the employment of persons upon public works on any basis listed in subdivision (a) of Section 12940 of the Government Code, as those bases are defined in Sections 12926 and 12926.1 of the Government Code, except as otherwise provided in Section 12940 of the Government Code. Every contractor for public works who violates this section is subject to all the penalties imposed for a violation of this chapter. A violation of any of the Fair Employment Practices requirements of this Contract or of the California Fair Employment Practices Act shall be regarded by the awarding authority as a basis for determining the Design Builder to be not a "responsible "bidder"' as to future contracts for which such Design Builder may submit bids, for revoking the Design Builder's pre-qualification rating, if any, and for refusing to establish, re- establish or renew a ore-aualification rating for the Design Builder and anv other The Design Builder agrees, that should the awarding authority determine that the Design Builder has not complied with the Fair Employment Practices section of this Contract, then pursuant to Labor Code Sections 1735 and 1775, the Design Builder shall, as a penalty to the Awarding Authority forfeit, for each calendar day, or portion thereof, for each person who was denied employment as a result of such non-compliance, the penalties provided in the Labor Code for violation of prevailing wage rates. Such monies may be recovered from the Design Builder. The awarding authority may deduct any such damages from any monies due the Design Builder .8 Design Build Entity shall include the provisions of the foregoing Articles 14.1.3.2.1 through 14.1.3.2.7 in all subcontracts with Subcontractors, so that such provisions will be binding upon each such Subcontractor. Page 70 of 73 General Conditions (earls bad Municipal Water District Palm Grove Removal and Native Plant Restoration Project No. 3821 14.2 PREVAILING WAGE 14.2.1 The Design Build Entity shall comply with State Law and the payment of prevailing wage is required. 14.3 NOT USED 14.4 NOT USED 14.5 CONSTRUCTION WORK-DAY 14.5.1 Design Build Entity shall not permit any worker to labor more than 8 hours during any 1 day or more than 40 hours during any 1 calendar week, except as permitted by law and in such cases only upon such conditions as are provided by law. Design Build Entity shall forfeit to CMWD, as a penalty, $25 for each worker employed in the execution of this Contract by Design Build Entity, or any Subcontractor, for each day during which such worker is required or permitted to work more than 8 hours in any 1 day and 40 hours in any 1 calendar week in violation of the terms of this Article 14.5 or in violation of the provisions of any law of the State of California. Such forfeiture amounts may be deducted from the Contract Sum. Design Build Entity and each Subcontractor shall keep, or cause to be kept, an accurate record showing the actual hours worked each day and each calendar week by each worker employed on the Project, which record shall be kept open at all reasonable hours to the inspection of CMWD, its officers and agents, and to the inspection of the appropriate enforcement agency of the State of California. 14.5.2 Construction work days do not include holidays recognized by CMWD. ARTICLE 15 MISCELLANEOUS PROVISIONS 15.1 GOVERNING LAW 15.1.1 This Contract shall be governed by the laws of the State of California. 15.2 SUCCESSORS AND ASSIGNS 15.2.1 CMWD and Design Build Entity respectively bind themselves and their successors, permitted assigns, and legal representatives to the other party and to the successors, permitted assigns, and legal representatives of such other party in respect to covenants, agreements, and obligations contained in the Contract Documents. Neither party to the Contract shall assign the Contract, in whole or in part, without prior written consent of the other party. Notwithstanding any such assignment, each of the original contracting parties shall remain legally responsible for all of its obligations under the Contract. 15.3 RIGHTS AND REMEDIES 15.3.1 All CMWD's rights and remedies under the Contract Documents will be cumulative and in addition to, and not in limitation of, all other rights and remedies of CMWD under the Contract Documents or otherwise available at law or in equity. Page 71 of 73 General Conditions Palm Grove Removal and Native Plant Municipal Water District Restoration Project No. 3821 15.3.2 No action or failure to act by CMWD or CMWD's Representative will constitute a waiver of a right afforded them under the Contract, nor will such action or failure to act constitute approval of or acquiescence in a condition or breach thereunder, except as may be specifically agreed in writing. No waiver by CMWD or CMWD's Representative of any condition, breach or default will constitute a waiver of any other condition, breach or default; nor will any such waiver constitute a continuing waiver. 15.3.3 No provision contained in the Contract Documents shall create or give to third parties any claim or right of action against CMWD, CMWD's Representative, or Design Build Entity. 15.4 SURVIVAL 15.4.1 The provisions of the Contract which by their nature survive termination of the Contract or Final Completion, including all warranties, indemnities, payment obligations, and CMWD's right to audit Design Build Entity's books and records, shall remain in full force and effect after Final Completion or any termination of the Contract. 15.5 COMPLETE AGREEMENT 15.5.1 The Contract Documents constitute the full and complete understanding of the parties and supersede any previous agreements or understandings, oral or written, with respect to the subject matter hereof. The Contract may be modified only by a written instrument signed by both parties or as provided in Article 7 of the General Conditions. 15.6 SEVERABILITY OF PROVISIONS 15.6.1 If any one or more of the provisions contained in the Contract Documents should be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby. 15.7 CMWD'S RIGHT TO AUDIT 15.7.1 CMWD and entities and agencies designated by CMWD will have access to and the right to audit and the right to copy at CMWD's cost all of Design Build Entity's books, records, contracts, correspondence, instructions, drawings, receipts, vouchers, purchase orders, and memoranda relating to the Work. Design Build Entity shall preserve all such records and other items during the performance of the Contract and for a period of at least 3 years after Final Completion. 15.8 NOTICES 15.8.1 Except as otherwise provided, all notices, requests, demands, and other communications to be given under the Contract Documents shall be in writing and shall be transmitted by one of the following methods: .1 Personally delivered . . 2 Sent by courier where receipt is confirmed . . 3 Sent by registered or certified mail, postage prepaid, return receipt requested . .4 Submitted electronically by uploading to the Project electronic document control website, if applicable. Page 72 of 73 General Conditions (car ]s bad Palm Grove Removal and Native Plant Municipal water District Restoration Project No. 3821 15.8.2 Such notices and other communications in above Article 15.8.1 shall be deemed given and received upon actual receipt in the case of all except registered or certified mail; and in the case of registered or certified mail, on the date shown on the return receipt or the date delivery during normal business hours was attempted. Such notices and communications shall be given at the respective street addresses set forth in the Agreement. Such street addresses may be changed by notice given in accordance with this Article 15.8. 15.9 TIME OF THE ESSENCE 15.9.1 Time limits stated in the Contract Documents are of the essence ofthe Contract. 15.10 MUTUAL DUTY TO MITIGATE 15.10.1 CMWD and Design Build Entity shall use all reasonable and economically practicable efforts to mitigate delays and damages to the Project and to one another with respect to the Project, regardless of the cause of such delay or damage. 15.11 DESIGN BUILDER'S AWARENESS AND COMPLIANCE WITH ADA ACT OF 1990 AND RELATED STANDARDS 15.11.1 The Design Builder's execution of the signature portion of the proposal shall constitute that the Design Builder is aware of the requirements of the Americans with Disabilities Act of 1990 (42 USC§§ 12101) and related accessibility standards and has complied with and will comply with these requirements, including, but not limited to verifying compliance of their contractors, consultants, agents and employees and constructing the project consistent with current accessibility statutes and regulations 15.11.2 The Design Builder shall be responsible to verify with CMWD that that all finished sidewalk, ramp, entry access grades, and travel paths strictly meet ADA requirements using a 2-foot long electronic "smart level" or other device acceptable to CMWD. General "construction tolerances" are unacceptable. The above requirements shall supersede grades shown on plans. If these requirements cannot be met with the existing grades or other physical or practical limitations, Design Builder shall immediately notify CMWD for direction before work takes place. Design Builder shall be responsible for the costs of any corrective work due to Design Builder's failure to meet these requirements. 15.11.3 CMWD does not discriminate on the basis of handicapped status in the admission or access to, or treatment of, or employment in its programs or activities Page 73 of 73 General Conditions