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Home My WebLink AboutItem 14 - Santa Ana Zoo Giant River Otter and Primate TrailsPublic Works Agency www.santa-ana.org/public-works Item # 14 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report January 16, 2024 TOPIC: Santa Ana Zoo Giant River Otter and Primate Trails AGENDA TITLE Approve a Takeover Agreement with Great American Insurance Group to Take Over the Santa Ana Zoo Giant River Otter and Primate Trails Project and Approve an Amendment to the Agreement with CLR Design to Increase the Construction Administration Services Amount by $75,000 for a New Estimated Total Services Cost of $193,000 (Project No. 16-2658) (Non -General Fund) RECOMMENDED ACTION 1. Authorize the City Manager to execute a takeover agreement with Great American Insurance Group subject to change orders (not to exceed 25% of the base bid amount) in accordance with the Greenbook: Standard Specifications for Public Works construction, to take over the Santa Ana Zoo Giant River Otter and Primate Trails Project and be responsible for the completion of all work in accordance with the contract (Agreement No. A-2024-XXX). 2. Authorize the City Manager to execute a first amendment to the agreement with CLR Design Inc. for construction support services for the Santa Ana Zoo Giant River Otter and Primate Trails Project, to increase the amount by $75,000, for a total agreement amount of $193,000 (Agreement No. A-2024-XXX). GOVERNMENT CODE §84308 APPLIES: Yes DISCUSSION On November 2, 2021, the City Council awarded a contract to HYM Engineering (Exhibit 1), the lowest responsible bidder, in accordance with the base bid in the amount of $5,289,238, for construction of the Santa Ana Zoo Giant River Otter and Primate Trails Exhibit, which is located in the heart of the Santa Ana Zoo. (Exhibit 2). On April 20, 2021, the City Council awarded an agreement with CLR Design, Inc. for Bidding and Construction Administration. This agreement was then extended on April 3, 2023 (Exhibit 3). HYM Engineering (Contractor) met all inspection and testing requirements to complete approximately 60% of the contract scope of work but due to issues unrelated to the project, the Contractor defaulted on the contract. In compliance with the Greenbook: Standard Specification for Public Works Construction, staff began Santa Ana Zoo Giant River Otter and Primate Trails January 16, 2024 Page 2 the process of terminating the contract for Default. In June 2023, staff terminated the contract with HYM Engineering and negotiated with Great American Insurance Group to take over the project as required by the Performance and Payment Bonds (Exhibit 4). Because of this takeover agreement, staff recommends to amend the existing agreement with CLR Design Inc. for construction administration to increase the agreement capacity to provide services throughout the life of the new project timeline and extend the agreement term until April 2025 (Exhibit 5). ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the recommended actions are exempt from further review. FISCAL IMPACT There is no fiscal impact associated with this action. The originally approved project cost analysis will not change and the surety will be responsible for expenses related to the transition and cost escalation of labor and materials. EXHIBIT(S) 1. HYM Staff Report 2. Location Map 3. CLR Agreement & Extension 4. Great American Insurance Group Takeover Agreement 5. CLR Amendment Agreement Submitted By: Nabil Saba, P.E., Executive Director — Public Works Agency Approved By: Tom Hatch, Interim City Manager EXHIBIT 1 Public Works and Parks Recreation & Community Services Agencies www.santa-ana.org/pw Item # 12 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report November 2, 2021 TOPIC: Santa Ana Zoo Giant River Otter and Primate Trails AGENDA TITLE Approve Appropriation Adjustment and Award a Construction Contract to HYM Engineering in the Amount of $5,289,238 for the Santa Ana Zoo Giant River Otter and Primate Trails FY 2021-22 Project with an Estimated Project Delivery Cost of $6,600,000 (Project No. 16-2658) (Non -General Fund) RECOMMENDED ACTION 1. Award a contract and authorize the City Manager to execute a construction contract with HYM Engineering, the lowest responsible bidder, in accordance with the base bid in the amount of $5,289,238, for the term beginning upon execution of the contract and ending upon project completion, for construction of the Santa Ana Zoo Giant River Otter and Primate Trails project, subject to non -substantive changes approved by the City Manager and the City Attorney. 2. Approve an appropriation adjustment to recognize $600,000 in donations from Friends of the Santa Ana Zoo into the PRCSA Fee & Donation, Gifts & Donations revenue account and appropriate the same amount into the PRCSA Fee & Donation, Improvements Other than Building expenditure account for the Santa Ana Zoo Giant River Otter and Primate Trails project. (Requires five affirmative votes) 3. Approve an appropriation adjustment to recognize $3,108,060.79 from prior -year fund balance in the Residential Development District 3, Acquisition & Development, Prior -Year Carry Forward revenue account and appropriate the same amount into the Residential Development District 3, Acquisition & Development expenditure account for the Santa Ana Zoo Giant River Otter and Primate Trails project. (Requires five affirmative votes) 4. Approve an amendment to the Fiscal Year 2021-22 Capital Improvement Program to include in construction funds, $600,000 from the PRCSA Fees & Donation Fund, and $3,108,060.79 from the Residential Development District 3, Acquisition & Development Fund, for the Santa Ana Zoo Giant River Otter and Primate Trails project (No. 16-2658), for and total project budget increase of $3,708,060.79. Award Construction Contract to HYM Engineering November 2, 2021 Page 2 DISCUSSION The existing "Amazon's Edge" exhibit, built in 1990, needs a complete renovation of its water filtration system, moat, and visitor observation area. In addition, the Association of Zoos and Aquariums (AZA) indicated the Santa Ana Zoo needs to modernize primate habitats to regain accreditations. The Santa Ana Zoo Giant River Otter and Primate Trails project will respond to all of these needs by encompassing an extensive transformation that will include redesign and reconstruction of existing facilities, installation of an underwater viewing area, and incorporation of an elevated primate trail system that opens up to large mesh habitats. Once completed, the exhibit will be a multi -species habitat that is home to Giant River Otters and large primates. The location of this project can be found on the attached location map (Exhibit 1). Public Outreach and Contractor Participation To provide an opportunity for local vendors to submit bids, the City notified a total of three regional vendors via PlanetBids, none of which are Santa Ana -based. Three vendors requested bidding documents, and a total of three bids were received. Bids were not received from any Santa Ana contractors. As legally required, a Notice Inviting Bids was advertised in the Orange County Register newspaper on May 11 and May 18, 2021. The project was also advertised in PlanetBids from July 19, 2021, through August 17, 2021. All Bids were received electronically via PlanetBids on August 17, 2021. Bid Results Summary RANK BIDDER'S NAME LOCATION BASE BID 1 HYM Engineering Inc. Fullerton $5,289,238.00 2 Kazoni Construction Costa Mesa $5,828,567.00 3 Metro Builders & Engineers Group Newport Beach $6,756,206.00 A total of three bids were received, and all were deemed responsive. HYM Engineering submitted the lowest responsive base bid, in the amount of $5,289,238 (Exhibit 2). As specified in the bid documents, the lowest bid shall be determined on the basis of the Base Bid. Based on the bid analysis and a contractor's reference check, staff recommends awarding the construction contract to HYM Engineering in the amount of the base bid totaling $5,289,238 (Exhibit 3). Project Delivery To deliver a complete project, in addition to the construction contract, the estimated total project delivery cost includes construction administration, inspection, and testing, along with an allowance for contingencies to account for unexpected or unforeseen conditions. Award Construction Contract to HYM Engineering November 2, 2021 Page 3 Construction administration and inspection includes construction management; implementation of the City's Community Workforce Agreement requirements; inspection of the Contractor's work to ensure contract compliance, workmanship, and quality; and materials testing. As indicated in the Cost Analysis (Exhibit 4) and as summarized in the table below, the estimated total construction delivery cost of the project is $6,600,000. Project Item Total Construction Contract $5,289,238.00 Construction Administration, Inspection, Testing $781,838.20 Contingencies $528,923.80 TOTAL CONSTRUCTION DELIVERY COST $6,600,000.00 ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the proposed project is exempt from future review. Categorical Exemption Environmental Review No. 2018-18 was for the project. In addition, a Certification of Categorical Exclusion and Statutory Worksheet have been prepared in accordance with the National Environmental Policy Act. FISCAL IMPACT As indicated in the Cost Analysis, the estimated total construction delivery cost of the project is $6,600,000, which includes construction, contract administration, inspection, testing, and an authorized contingency. Approval of the requested Appropriation Adjustments will provide the following funding: 1. Recognize $600,000 in donations from FOSAZ into the PRCSA Fee & Donation, Gifts & Donations revenue account (No. 02213002-57081) and appropriate the same amount into the PRCSA Fee & Donation, Improvements Other than Building expenditure account (No. 02213200-66220). 2. Recognize $3,108,060.79 from prior year fund balance in the Residential Development District 3, Acquisition & Development, Prior Year Carry Forward revenue account (No. 31313002-50001) and appropriate the same amount into the Residential Development District 3, Acquisition & Development expenditure account (No. 31313260-66220). With the approval of the $3,708,060.79 amendment to the Fiscal Year 2021-22 Capital Improvement Program (Exhibit 5) and corresponding appropriation adjustments, the additional funding for this project will be available for expenditure in Fiscal Year 2021-22. The following table summarizes the funds budgeted and available for expenditure to deliver construction of this project. Any remaining balances not expended at the end of the fiscal year will be carried forward into FY 2022-23 for expenditure. Award Construction Contract to HYM Engineering November 2, 2021 Page 4 Fiscal Accounting Fund Accounting Unit, Year Unit -Account # Description Account Amount Description APROPRIATION ADJUSTMENTS PRCSA Fee & 2021-22 02213200-66220 PRCSA Fees Donation, $600,000.00 & Donation Improvements Other Than Building Residential PRCSA-Acquisition & 2021-22 31313260-66220 Development Development, Improvements Other $3,108,060.79 District 3 Than Building EXISTING PROJECT BUDGET Residential PRCSA-Acquisition & 2021-22 31313261-66220 Development Development In Lieu, $1,044,223.00 (Prof. 16-2658) District 3 Improvements Other Than Building Residential PRCSA-Acquisition & 2021-22 31313260-66220 Development Development, $1,847,716.21 (Prof. 16-2658) District 3 Improvements Other Than Building Total $6,600,000.00 EXHIBIT(S) 1. Location Map 2. Bid Results 3. Construction Contract 4. Cost Analysis 5. CIP worksheet Submitted By: Nabil Saba, P.E., Executive Director — Public Works Agency and Lisa Rudloff, Executive Director, Parks, Recreation & Community Services Agency Approved By: Kristine Ridge, City Manager EXHIBIT 1 OWN ORANGE ` SANTAANA Project No. 16-2658. 0 ir 2 It Pi SA Zoo Giant River Otter ; PUBLIC W0- Habitat T � City of Santa Ana Santa Ana Zoo Giant River Otter & Primate Trails (16-2658), bidding on 08/17/2021 2:00 PM (PDT) Bid Results Bidder Details Vendor Name HYM Engineering, Inc. Address 1559 W Commonwealth Ave Fullerton, California 92833 United States Respondee Abraham Jeon Respondee Title President Phone 714-523-2372 Email ajeon@hymengineering.com Vendor Type CADIR, VSBE License # 918130 Bid Format Electronic Submitted 08/17/2021 1:34 PM (PDT) Delivery Method Bid Responsive Bid Status Submitted Confirmation # 263726 Respondee Comment Buyer Comment Attachments EXHIBIT 2 File Title File Name File T) Proposal - Scanned.pdf Proposal - Scanned.pdf Gener City of Santa Ana Santa Ana Zoo Giant River Otter & Primate Trails (16-2658), bidding on 08/17/2021 2:00 PM (PDT) Line Items Discount Terms No Discount Item # Item Code Type Item Description Bid Proposal Form Giant River Otter and Primate Trails i 4TY Unit Price LS 1 $5,289,238.0000 $5,269,238.00 $5,289,238,001 City of Santa Ana Santa Ana Zoo Giant River Otter & Primate Trails (16-2658), bidding on 08/17/2021 2:00 PM (PDT) Line Item Subtotals Section Title Bid Proposal Form Grand Total CITY OF SANTA ANA EXHIBIT 3 CONSTRUCTION CONTRACT AGREEMENT PROJECT NO.: 16-2658 Santa Ana Zoo Giant Riser Otter & Primate Trails This CONSTRUCTION CONTRACT is made and entered into this 2nd day of November, 2021 by and between the City of Santa Ana, California, a charter city and municipal corporation organized and existing tinder the Constitution and laws of the State of California (hereinafter "CITY"), and HYM Engineering (hereinafter "CONTRACTOR"). WITNESSETH: The CITY and the CONTRACTOR, for the consideration hereinafter named, mutually agree as follows: 1. CONTRACTOR agrees to perform all the work and furnish all the materials at its own cost and expense necessary to construct and complete in a good and workmanlike manner and to the satisfaction of the City Engineer of the CITY, the Santa Ana Zoo Giant River Otter & Primate Trails (hereinafter referred to as the "WORK OF IMPROVEMENT") identified in and in accordance with the Contracts Documents prepared by the City's Public Works Agency and approved by the City Council. 2. The complete Construction Contract consists of the "Contract Documents" as defined by the Standard Specifications for Public Works Construction and which include the following: • Notice Inviting Bids • Information to Bidders • Bid Proposal • Bid Bond • Contract Form • Contract Bonds • General Provisions • Special Provisions • Technical Provisions and Project Plans • Community Workforce Agreement • Appendices In case of conflict between the Contract Documents, the precedence of documents shall be as established in the Standard Specifications for Public Works Construction. 3. CITY agrees to pay and CONTRACTOR agrees to accept in full payment to complete the WORK OF IMPROVEMENT the sum total amount not to exceed Five Million Two Hundred Eighty -Nine Thousand Two Hundred Thirty -Eight and No Cents ($5,289,238), as set forth and identified in the BID PROPOSAL, which is attached hereto and incorporated herein as "Exhibit A." The BID PROPOSAL contains a schedule of unit price(s) or lump sums) based on approximate quantities only, and the City does not expressly or by implication agree that the actual amount of work will correspond therewith, but reserves the right to increase or decrease the amount of any class or portion of the work or to omit portions of the work as may be deemed necessary or advisable. 1 of 3 CITY OF SANTA ANA CONSTRUCTION CONTRACT AGREEMENT PROJECT NO.: 16-2658 Santa Ana Zoo Giant River Otter & Primate Trails 4. CONTRACTOR agrees to complete the WORK OF IMPROVEMENT within the time specified in the Time for Completion of Improvements section of the BID PROPOSAL (Exhibit "A") including commencing construction within the timeframe therein specified after issuance of a Notice to Proceed. 5. The CONTRACTOR will pay, and will require all subcontractors to pay, all employees on the WORK OF IMPROVEMENT a salary or wage at least equal to the prevailing salary or wage established for such work as set forth in the wage determinations for this work in accordance with applicable State and Federal law. 6. If applicable, the CONTRACTOR shall adhere to the CITY'S Community Workforce Agreement (CWA), a pre -hire collective bargaining agreement, which establishes the labor relations policies and procedures for CONTRACTOR to follow in the crafts persons employed to complete the WORK OF IMPROVEMENT as more fully described in the CWA. The CWA may be found on the City's website at: hqp://www.saiita-aiia.org/2wa/documelits/CWA.pdf 7. CONTRACTOR shall, after award of this Contract, furnish two bonds to be approved by the CITY, one in the amount of One Hundred Percent (100%) of the Contract price, to guarantee the faithful performance of the work (Performance Bond), and one in the amount of One Hundred Percent (100%) of the Contract price to guarantee payment of all claims for labor and materials furnished (Payment Bond). This Contract shall not become effective until such bonds are supplied to and approved by the CITY. 8. CONTRACTOR shall, prior to the release of the performance and payment bonds or the retention payment, furnish a warranty performance and payment bond (Warranty Bond). Said Warranty Bond shall also be required as a condition of project acceptance. For projects up to Five Hundred Thousand Dollars ($500,000), the Warranty Bond amount shall be the greater of Ten Thousand Dollars ($10,000) or Twenty Percent (20%) of the final contract price. For projects above Five Hundred Thousand Dollars ($500,000), the Warranty Bond amount shall be the greater of One Hundred Thousand Dollars ($100,000) or Ten Percent (10%) of the final contract price. 9. CONTRACTOR shall, after award of this Contract, furnish Certificates of Liability Insurance and Worker's Compensation Insurance as outlined in the General Provisions, to be approved by the CITY. 10. INDEMNIFICATION. To the fullest extent allowed by law, CONTRACTOR and its Subcontractors hereby agree to defend, indemnify, and hold harmless CITY, its City Council, boards and commissions, officers, agents, employees, representatives and volunteers (hereinafter collectively referred to as "Indemnitees"), through legal counsel acceptable to CITY, from and against any liability, claims, actions, costs, damages or losses, including reasonable costs and attorney's fees, for injury, including death to any person or damage to any property, arising directly or indirectly from, or in any manner relating to, any of the following: (i) Performance or nonperformance of the Work of Improvement by CONTRACTOR or its Subcontractors of any lower tier; (ii) Performance or nonperformance by CONTRACTOR or its Subcontractors of any lower tier, 2of3 CITY OF SANTA ANA „h CONSTRUCTION CONTRACT AGREEMENT PROJECT NO.: 16-288 Santa Ana Zoo' Giant River Over & Primate Trails of any of the obligations under the Contract Documents; (iii) The construction activities of CONTRACTOR or its Subcontractors of any lower tier, either on the project site or on other properties; (iv) The payment or nonpayment by CONTRACTOR of any of its Subcontractors of any lower tier, for Work of Improvement performed on or off the project site; and (v) Any personal injury, property damage or economic loss to third persons related to and arising from the performance or nonperformance by CONTRACTOR or its Subcontractors of any lower tier, of the`Work of Improvement, (vi) The indemnity obligations of Subcontractors provided by this Section shall be included in all subcontract documents issued. by CONTRACTOR. Nothing in the Contract Documents shall be construed to give rise to any implied right: of indemnity in favor of CONTRACTOR against CITY or any other Indernpitee. IN WITNESS WHEREOF, the parties hereto have executed this Construction Contract on the day and year first above written, ATTEST: DAISY GOMEZ Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: L. A - LAURA A. ROSSINI Chief Assistant CityAttorney RECOMMENDED FOR APPROVAL: NABIL SABA, PE Executive Director Public Works Agency CITY OF SANTA ANA KRISTINE RIDGE City Manager CONTRACTOR:;vt� h er ►vtC Company: HYM NAME: /��vr�•I�av� �eoh Title: ?Y'ES 4 3 of 3 EXHIBIT 4 COST ANALYSIS CONSTRUCTION OF PROJECT NO. 16-2658: Santa Ana Zoo Giant River Otter and Primate Trails Construction Contract $ 5,289,238.00 Contract Administration, Inspection and Testing $ 781,838.20 Contingencies $ 528,923.80 TOTAL ESTIMATED CONSTRUCTION COSTS 1 $ 6,600,000.00 PROJECT TITLE: Santa Ana Zoo Giant River Otter Habitat PROJECT CATEGORY: Park Facility Improvements Park Facility LOCATION MAP A N CITY OF SANTA ANA FY21/22CIP CAPITAL IMPROVEMENT PROJECT WORKSHEET PROJECT DESCRIPTION: Renovate the existing Amazon Edge Exhibit into a new Giant River Otter Exhibit. PROJECT NEED: The existing Amazon Edge Exhibit needs complete renovation to its water circulation and pumping system. In addition, AZA indicated the SA Zoo needs updated exhibits to regain accreditations. The old Amazon Edge Exhibit will be completely redesigned into a new Giant River Otter Habitat with an underwater viewing area. The improvements will also include a monkey highway through the trees and landscape to bring the animals closer to the viewer. PROJECT COSTS FY 21/22 FY 22/23 FY 23/24 FY 24/25 FY 25/26 FY 26/27 FY 27/28 Construction 3,708,061 - - - - - - TOTAL 3,708,061 - - SOURCE OF FUNDS A & D District 3 3,108,061 PRCSA F&D 600,000 TOTAL 3,708,061 FY 21 /22 FY 22/23 FY 23/24 FY 24/25 FY 25/26 FY 26/27 FY 27/28 AGENCY: DIVISION: CONTACT: DATE: Parks, Rec. & Community Services Administration Ron Ono, Administrative Services Manager 13-Oct-2021 EXHIBIT 2 4 4 TF @ 2012-2017 Digital Map Products. All rights reserved. -- Ai 258 feet N 2 1 EXHIBIT 3 Public Works Agency https://www.santa-ana.org/pw Item # 24 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report April 20, 2021 TOPIC: Agreement with CLR Design, Inc. for Bidding and Construction Administration AGENDA TITLE Approve Agreement with CLR Design, Inc. for Bidding and Construction Administration Services for the Santa Ana Zoo Giant River Otter and Primate Trails Project in the Amount of $106,980 With an Estimated Total Cost of $118,000 (Project No. 16-2658) (Non - General Fund) RECOMMENDED ACTION Authorize the City Manager to execute an agreement with CLR Design, Inc. for Bidding and Construction Administration Services for the Santa Ana Zoo Giant River Otter and Primate Trails Project, for a two-year period beginning April 20, 2021 and expiring April 20, 2023, with provisions for two one-year renewal options exercisable by the City Manager and City Attorney, in an amount not to exceed $118,000, including any renewals, subject to non -substantive changes approved by the City Manager and City Attorney. DISCUSSION The Amazon's Edge exhibit at the Santa Ana Zoo opened to the public in 1993. Through the Giant River Otter and Primate Trails Project, the exhibit will be renovated, upgraded, and expanded into a new multi -species complex. The complex will include giant river otters and large primates. Improvements include renovation of the current exhibit area, water moat, life support -water filtration system, viewing structure, and holding facility. The project will also include the addition of an adjacent exhibit area, which will be connected to the original Amazon's Edge by an overhead primate trail system. CLR Design Inc. was originally retained in 2016 through a competitive procurement process to provide zoological design services for the renovations to the Amazon's Edge exhibit. The agreement laid out a five -task approach for completing the scope of work. In January 2018, the City Council authorized an amendment to the agreement to expand the scope in response to the Association of Zoos and Aquariums' concerns about current primate housing at the Zoo. The design and plan check process for the additional work was lengthier than anticipated and the terms of the agreement were exhausted before the final task (Bidding and Construction Administration) could be completed. Approve Agreement with CLR Design, Inc. April 20, 2021 Page 2 Staff recommends approval of the agreement with CLR Design, Inc. (Exhibit 1) in order for the firm to complete the final task due to the specialized design, uniqueness, and complexity of the project and the services they provide. It is critical to keep the firm as part of the construction administration team to assist with answering detailed questions during the bid period, to prepare addenda, to respond to Requests for Information, assist with submittal review, to attend site meetings, and conduct site inspections. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT The following table summarizes the funds budgeted and available for the estimated total cost of the agreement. Any unspent funds will be carried forward for the agreement term and renewal periods, if exercised. Accounting Accounting Unit — Fiscal Unit -Account Fund Account Amount Year No. Description Description Pro'ect No. Residential Acquisition and 2020-21 31313260-66220 Development Development, $118,000 (16-2658) District 3 Improvements Other Than Building EXHIBIT(S) 1. Consultant Agreement 2. Cost Analysis Submitted By: Nabil Saba, P.E., Executive Director — Public Works Agency Lisa Rudloff, Executive Director — Parks, Recreation, and Community Services Approved By: Kristine Ridge, City Manager iNSUHANCE NOT ON rILE WORK MAY NOT PROCEED A-20Z 1-060 SAY U 3 7021 CLERK OF COUNCIL DATE: CONSULTANT AGREEMENT A,\ 6 (� `(-L CITY OF SANTA ANA l This AGREEMENT is made and entered into this 20th day of April, 2021 by and between the City of Santa ,Ana, California, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California, (hereinafter "CITY") and CLR Design, Inc. (hereinafter "CONSULTANT"). RECITALS A. The CITY desires to retain a consultant having special skill and knowledge in the field of construction administration and management services for the Santa Ana Zoo Giant River Otter and Primate Trails Project. B. CONSULTANT represents that CONSULTANT is able and willing to provide such services to the CITY. C. In undertaking the performance of this Agreement, CONSULTANT represents that it is knowledgeable in its field and that any services performed by CONSULTANT under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES CONSULTANT shall perform during the term of this Agreement, the tasks and obligations including all labor, materials, tools, equipment, and incidental customary work required to fully and adequately complete the services described and set forth in Scope of Services - Exhibit A, attached hereto and incorporated by reference. The Scope of Services shall include a Schedule for the Delive of Services, which shall be delivered as prescribed, beginning upon the CITY's issuance of a Notice to Proceed. 2. COMPENSATION CITY agrees to pay, and CONSULTANT agrees to accept as total payment for its services for CITY, the rates and charges identified in Compensation - Exhibit B, attached hereto and incorporated by reference, the total amount of which shall not exceed One Hundred Eighteen Thousand Dollars and No Cents ($118,000.00) for the term of the agreement. Compensation shall be processed in accordance with Section 18. 3. TERM This Agreement shall commence on the date first written above for a two-year term with the option for the CITY to grant up to two (2) one-year renewal option(s) exercisable by the City Manager and the City Attorney, unless terminated earlier in accordance with Section 15, below. rev. 0t/26/2017 Page I of 8 4. INDEPENDENT CONTRACTOR CONSULTANT shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the CITY. This Agreement is not intended nor shall it be construed to create an employer -employee relationship, a joint venture relationship, or to allow the CITY to exercise discretion or control over the professional manner in which CONSULTANT performs the services which are the subject matter of this Agreement; however, the services to be provided by CONSULTANT shall be provided in a manner consistent with all applicable standards and regulations governing such services. CONSULTANT shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 5. OWNERSHIP OF MATERIALS This Agreement creates a non-exclusive and perpetual license for CITY to copy, use, modify, reuse, or sublicense any and all copyrights, designs, and other intellectual property embodied in plans, specifications, studies, drawings, estimates, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings or data magnetically or otherwise recorded on computer diskettes, which are prepared or caused to be prepared by CONSULTANT under this Agreement ("Documents & Data"). CONSULTANT shall require all subcontractors to agree in writing that CITY is granted a non-exclusive and perpetual license for any Documents & Data the subcontractor prepares under this Agreement. CONSULTANT represents and warrants that CONSULTANT has the legal right to license any and all Documents & Data. CONSULTANT makes no such representation and warranty in regard to Documents & Data which were provided to CONSULTANT by the CITY. CITY shall not be limited in any way in its use of the Documents and Data at any time, provided that any such use not within the purposes intended by this Agreement shall be at CITY's sole risk. 6. INSURANCE Prior to undertaking performance of work under this Agreement, CONSULTANT shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. CONSULTANT shall maintain commercial general liability insurance naming the CITY, its officers, employees, agents, volunteers and representatives as additional insured(s) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of CONSULTANT's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name the CITY, its officers, employees, agents, and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the CITY; and (c) contain standard separation of insured's provisions. Page 2 of 8 b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non -owned automobiles. C. Worker's Compensation Insurance. In accordance with the provisions of Section 3700 of the Labor Code, CONSULTANT, if CONSULTANT has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, CONSULTANT agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If CONSULTANT is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim with $2,000,000 in the aggregate. C. The following requirements apply to the insurance to be provided by CONSULTANT pursuant to this section: i. CONSULTANT shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. ii. Certificates of insurance shall be furnished to the CITY upon execution of this Agreement and shall be approved by the CITY. iii. Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the CITY. iv. CONSULTANT shall supply CITY with a fully executed additional insured endorsement. £ If CONSULTANT fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the CITY with required proof that insurance has been procured and is in force and paid for, the CITY shall have the right, at the CITY's election, to forthwith terminate this Agreement. Such termination shall not affect CONSULTANT's right to be paid for its time and materials expended prior to notification of termination. CONSULTANT waives the right to receive compensation and agrees to indemnify the CITY for any work performed prior to approval of insurance by the CITY. 7. INDEMNIFICATION To the fullest extent permitted by law, CONSULTANT shall indemnify, defend and hold harmless CITY, its officers, agents and employees (collectively, the "indemnified parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a claim; collectively, "claims"), to any work performed or services provided under this Agreement arising out of, relating to or pertaining to the negligence, recklessness or willful misconduct of CONSULTANT, its principals, officers, agents, employees, vendors, suppliers, contractors, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable for any or all of them. Notwithstanding the foregoing, nothing herein shall be construed to require CONSULTANT to indemnify the indemnified parties from any claim Page 3 of 8 arising from the sole negligence or willful misconduct of the indemnified parties. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the CONSULTANT. 8. INTELLECTUAL PROPERTY INDEMNIFICATION CONSULTANT shall defend and indemnify the CITY, its officers, agents, representatives, and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in the work product or documents provided by CONSULTANT to the CITY pursuant to this Agreement. 9. RECORDS CONSULTANT shall keep records and invoices in connection with the work to be performed under this Agreement. CONSULTANT shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures, and disbursements charged to the CITY for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to CONSULTANT under this Agreement. All such records and invoices shall be clearly identifiable. CONSULTANT shall allow a representative of the CITY to examine, audit, and make transcripts or copies of such records and any other documents created pursuant to this Agreement during regular business hours. CONSULTANT shall allow inspection of all work, data, documents, proceedings, and activities related to this Agreement for a period of three (3) years from the date of final payment to CONSULTANT under this Agreement. 10. CONFIDENTIALITY If CONSULTANT receives from the CITY information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, CONSULTANT agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the CONSULTANT disclosed in a publicly available source; (c) is in rightful possession of the CONSULTANT without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the CONSULTANT without reference to information disclosed by the CITY. 11. CONFLICT OF INTEREST CLAUSE CONSULTANT covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services. Conflict may be further specified in Certifications - Exhibit C, attached hereto and incorporated in this Agreement by reference. Page 4 of 8 12. DISCRIMINATION CONSULTANT shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. CONSULTANT affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations and as further specified in Certifications - Exhibit C, attached hereto and incorporated in this Agreement by reference. 13. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the CITY and CONSULTANT, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the CITY and by an authorized representative of CONSULTANT. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate CONSULTANT or the CITY. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein. 14. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of CONSULTANT, CONSULTANT may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the CITY and any such assignment, transfer, delegation or subcontract without the CITY's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the CITY's ability to have any of the services which are the subject to this Agreement performed by CITY personnel or by other consultants retained by CITY. 15. TERMINATION This Agreement may be terminated by the CITY upon thirty (30) days written notice of termination. In such event, CONSULTANT shall be entitled to receive and the CITY shall pay CONSULTANT compensation for all services performed by CONSULTANT prior to receipt of such notice of termination, subject to the following conditions: a. As a condition of such payment, the Executive Director may require CONSULTANT to deliver to the CITY all work product(s) completed as of such date, and in such case such work product shall be the property of the CITY unless prohibited by law, and CONSULTANT consents to the CITY's use thereof for such purposes as the CITY deems appropriate. b. Payment need not be made for work which fails to meet the standard of performance specified in the Recitals of this Agreement. Page 5 of 8 16. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 17. PROFESSIONAL LICENSES CONSULTANT shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. CONSULTANT shall notify the CITY immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 18. PAYMENTS & INVOICES a. Payment by CITY shall be made within forty-five (45) days following receipt of proper invoice evidencing work performed, subject to CITY accounting procedures. Payment need not be made for work which fails to meet the standards of performance set forth in the Recitals which may reasonably be expected by CITY. b. Invoices should be submitted on the 15th of each month and shall include the following information at a minimum: i. CONSULTANT's invoice number and CITY's agreement number ii. Beginning and ending dates for services iii. CITY Project and/or Task Order number and/or name (if applicable) iv. Work site address/location (if applicable) V. Tasks or deliverables completed and percentage (%) of total services completed. vi. Remaining Overall and Task Order budget available 19. MISCELLANEOUS PROVISIONS a. Additional provisions, if any, are identified as Additional Provisions, Exhibit D, attached hereto and incorporated into this Agreement by reference. b. Each undersigned represents and warrants that its signature herein below has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify CITY fully, including reasonable costs and attorney's fees, for any injuries or damages to CITY in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. C. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. Page 6 of 8 20. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in the manner provided in this Section, to the following persons: To CITY: Cleric of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702 Fax: (714) 647-6956 With courtesy copies to: Executive Director, Public Worlcs Agency City of Santa Ana 20 Civic Center Plaza (M-21) P.O. Box 1988 Santa Ana, CA 92702 Fax. (714) 647-5635 To CONSULTANT: Gregg Leicester Principal CLR Design 34921 Calle Del Sol Capistrano Beach, CA 92624 Fax: (215) 564-0250 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, CA 92702 Fax: (714) 647-6515 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by fax, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or CITY holidays shall be excluded. Page 7 of 8 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first above written. ATTEST: DAISY GOMEZ Clerk of the Council APPROVED AS TO FORM: SONIA R. CARVALHO City Attorney By: 14 I)"• JdANFUNK Senior Assistant City Attorney RECOMMENDED FOR APPROVAL: / 4 =2=a34* �- NABIL SABA ive Director Works Agency CITY OF SANTA ANA f5fl RIDGE City Manager CONSULTANT: CLR Design, Inc. G LEICESTER Principal Tax ID# . 23-2622204 Page 8 of 8 Li';c,,i�- �L Old FILE i,I.AY PROCEED IiISURANGE EXPIRES �}•11'23 _ 6 OF CO`JNCIL MAYOR , IE. 'A Valerie Amezcua MAYOR PRO TEM Jessie Lopez COUNCILMEMBERS Phil Bacerra Johnathan Ryan Hernandez David Penaloza Thai Viet Phan Benjamin Vazquez CITY OF SANTA ANA 0" PU-fil 4) PUBLIC WORKS AGENCY okr,rd-FA- 20 Civic Center Plaza • P.O. Box 1988 Santa Ana, California 92702 www.santa-ana.or April 3, 2023 CLR Design, Inc. 34921 Calle Del Sol Capistrano Beach, CA 92624 Attn: Gregg Leicester A-2021-060-01 CITY MANAGER Kristine Ridge CITY ATTORNEY Sonia R. Carvalho CITY CLERK Jennifer L. Hall Re: Extension of Agreement (A-2021-0601 for Construction Administration and Management Services Dear Mr. Leicester: Pursuant to Section 3 ("Term") of the above -referenced Agreement, entered into by CLR Design, Inc., and the City of Santa Ana, dated April 20, 2021, the time period of the Agreement is hereby extended for an additional one-year period, from April 20, 2023 through April 19, 2024. Any insurance certificates are required to be extended and/or renewed to cover this extension. All other terms and conditions of the Agreement remain unchanged and in full force and effect. Sincerely, i,_1aa*+. /i Nabil Saba, P.E. Executive Director, Public Works Agency CITY OF SANTA ANA K rstme—Ridg —'- City Manager APPROVED AS TO FORM anathan T. Mart' Assistant City Attorney ATTEST enru cr La' City Clerk CLR 9WIGN, INC. SANTA ANA CITY COUNCIL • Valede Amezcua Jessie Lcpez Thal Viet Phan Benjamin Vazquez Phll Banerca Johnathan Ryan Hernandez David Peaaloxa Mayor Mayor Pro Tam, Ward 7 Ward 1 Ward 2 Ward q Ward 5 Ward e vameMidw 7sanlaam.gry IessielppazCgsanta ana.org tphan@santa-ana.orq bvazguez0,santa-ana,or4 phacerraPsanlaana,arq iryanhemandezRsanlaanauoM dianla-ana.org A • �1 M I ] (}t-� L-�lgltally sig TE ACOI2o CERTIFICATE OF LIABILITY INSURANCE by Angie D 0712v410lY2022 a7122 Ai THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS TI � THCERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR AL E C V_a FORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN TrIE �`�r12ER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. A i IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must iUWDIT,ONAL IN Uj2Etprovlsians or be endorsed, If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsements . PRODUCER 445-201-1625 CONTACT Paul J. Lucci Poole Professional B&B of MA PHONE 445-201-1625 FAX 107 Audubon Rd, #2, Ste 305 arc, No Exe : we No Wakefield, MA018S0 EMAIL ,paul.lucci@bbrown,com Paul J. Lucci R Design Inc. 3 Chestnut St., Suite 909 iladelphia, PA 19107 Travelers Indemnity Co of CT Z51it32 Travelers Indomnity Co. 25658 Travelers Prop Casualty Co Am 25674 XL Specialty Insurance Company 37885 r-nl1c0nrzr4Z rrGOTlor-ATc K1I111nel: IM-0- octir111clnkl r,ulnaQeo. THIS tS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE ADDL SUER POLICYNUMBER POLICY EFF POLICY EXf LIMITS A X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE OCCUR X X 680-2J979064-22-47 07111/2022 07/11/2023 EACH OCCURRENCE S 1,000,000 DAMAGE TO RENTED currai S 1,000,000 MED FXP (AnV oneperson)10,000 PERSONAL & ADV INJURY S 1,000,000 GEN'L AGGREGATE LIMIT AP PLIES PER: PE LOC POLICY �X JCT OTHER: GENERAL AGGREGATE S 2,000,000 PRODUCTS - COMPIOP AGG S 2,000,a00 S IB AUTOMOBILE Ix LIABILITY ANY AUTO OWNED SCHEDULED AUTOS ONLY AUTOS AUTOS ONLY X A�TO ONLY BA-9R272273-22-47-G 07/11/2022 0711112023 COMBINED SINGLE UMIT 1,000,000 $ BODILY INJURY Perperson) $ BODILY INJURY Per accident $ Pe0accitlen�AMAGE $ C X UMBRELLALIAB EXCESS LIAB X OCCUR CLAIMS -MADE CUP-673GY412-22-47 07/11/2022 07111/2023 EACH OCCURRENCE S 5,000,000 AGGREGATE S 5,000,000 DIED I I RETENTION $ C WORKERS COMPENSATION ANDEMPLOYERS'LIABILITY ANY PROPRIETOWPARTNERIEXECUTIVE YIN OFFICERIMEMBER EXCLUDED? (Mandatory in Ni It yes, describe under DESCRIPTION OF OPERATIONS below N f A UB-71C189676-22-47-G 0711112022 07/11/2023 X PER OTH- JTF F.L. EACH ACCIDENT 1,000,000 $ E.L. DISEASE - EA EMPLOYEE S 1,000,000 E.L. DISEASE - POLICY LIMrf 5 1,000,000 D Professional Liability DPR9996109 07111/2022 07/11/2023 I a Claim Aggregate 4,000,000 4,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS f VEHICLES {ACORD 101, Addiflonal Remarks Schedule, may be attached If more space is required) RE: City of Santa Ana Agreement # A-2021-060. See next page for description City of Santa Ana Risk Management 20 Civic Center Plaza Santa Ana, CA 92702-198 ACORD 25 (201 &1 SANTA-3 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. i; AUTHORIZED REPRESENTATIVE RIA Matogement Division �. REvii &APPROVED BY: O 1988-2015 ACORD The ACORD name and logo are registered marks of ACORDD Risk Manage-ment5pedalisl NOTEPAD. HOLDER CODE SANTA-3 CLRDE-1 PAGE 2 1NSUREd's NAME CLR Design Inc. OP 10: LP oat& 07/21/2022 RE: City of Santa Ana Agreement # A-2021-060. City of Santa Ana, its officers, employees, agents and representatives are named as additional insured as respects general liability for services provided by the named insured. Coverage is primary and non-contributory. 30 days notice of cancellation apppplies. Additional Insured endorsements at�ached. (CG T8 02 07 22 & CG T8 D3 07 22). Waiver of Subrogation applies to the Genral Liability (See endorsements CG Tl 00 02 L9, Page 16, Paragraph 8 and CG D3 79 01 16, Page 6, Paragraph Q.) �„„.._.h�� RisleM�nteniDivie[ort G REVIEWED & APPROVED BY. ®. �-� Risk klanageinent Specialist TAKEOVER AGREEMENT PROJECT 16-2658 SANTA ANA ZOO GIANT RIVER OTTER & PRIMATE TRAILS I. RECITALS 1. The parties to this Takeover Agreement ("Agreement") are GREAT AMERICAN INSURANCE COMPANY ("GAIC" or "Surety") and the CITY OF SANTA ANA ("Owner"). This Agreement is effective as of the date last signed by any party ("Effective Date"). 2. Owner entered into a Contract (the "Contract") with HYM ENGINEERING ("HYM" or "Principal") for HYM to furnish all labor and material and perform all work for the Santa Ana Zoo Giant River Otter & Primate Trails project (the "Project") in accordance with the terms and provisions of the Contract, a copy of the Contract being attached hereto as Exhibit "A" and incorporated herein, including all Contract Documents forming a part of the Contract, as enumerated in the Contract and modifications, amendments and/or changes to the Contract effectuated prior to the Effective Date of this Agreement. References herein to the "Contract" shall be deemed to include references to all modifications, amendments and/or changes to the Contract effectuated prior to the Effective Date of this Agreement. 3. As required by the Contract, Surety issued Performance and Payment Bonds numbered 4054734 identifying HYM as the principal and Owner as the obligee (the "Performance Bond" and "Payment Bond"), each of which are in the Penal Sum equal to the Contract Price under the Contract of $5,289,238.00 copies of these Bonds being attached hereto as Exhibit "B," respectively, and incorporated herein; 4. HYM defaulted on the Project as outlined in HYM's Voluntary Letter of Default attached hereto as Exhibit "C" and incorporated herein. The Owner subsequently made demand upon the Performance Bond for GAIC to complete the Project. 5. As of the date of HYM's default under the Contract, certain work and other obligations of HYM remain to be performed under the Contract. 6. GAIC has decided to fulfill its obligations under the bond by completing the contract, subject to the conditions of the bond, contract and this agreement, specifically, but not limited, to the conditions described under section 10 of the Terms and Condition listed below. 7. The Owner acknowledges that GAIC is acting in its capacity as the Surety for HYM in making arrangements for the performance and completion of the Remaining Work/Obligations. 1 NOW, THEREFORE, based on the exchange of valuable consideration, including the covenants and conditions of this Agreement, the receipt and sufficiency of which is acknowledged, and based on the Recitals set forth above which form a part of this Agreement, Surety and Owner agree to the following terms and conditions: IL TERMS AND CONDITIONS 1. Recitals. The above Recitals and the Terms and Conditions herein are contractual and not merely recitals and the agreements contained herein and consideration transferred are to satisfy the rights and obligations between Owner and Surety, except as to claims reserved by this Agreement. 2. Incorporation of the Contract. The Contract is incorporated by reference into this Agreement, including the Contract Documents, including but not limited to, any Addendum (which pertains to the Contract Documents), Notice Inviting Bids, Instructions to Bidders, Bid (including documentation accompanying the Bid and any post -bid documentation submitted prior to the Notice of Award) when attached as an exhibit to the Contract, the Bonds, permits, the Special Provisions, the Plans, Standard Plans, Standard Specifications, Reference Specifications, Change Orders (including future Change Order for PCO #12 scope of work) and all Modifications issued after the execution of the Contract All terms of the Contract are incorporated herein, 3. The Balance of the Contract Sum. GAIC will procure the performance of the Remaining Work relying on, among other things, the Owner's representation that the outstanding earned and unpaid Contract funds in the amount of $1,773,192.11 shall be paid to GAIC. The Owner represents that the Balance of the Contract Sum as follows: Contract Price: $5,289,238.00 Approved Change Orders: $ 90,500.00 PCO #12: $165,855.00' Current Contract Price: $5,545,593.00 Amount Paid to Principal: $3,772,400.89 "Balance of the Contract Sum": $1,773,192.11 Owner agrees that the Balance of the Contract Sum is dedicated to and will be paid to GAIC for the completion of the Remaining Work pursuant to this Agreement. GAIC expressly reserves the right to verify all Contract fund accountings and to request the appropriate adjustments from the Owner and/or its representatives. The Balance of the Contract Sum shall be increased by the value of future Change Orders subsequently approved by Owner. ' This amount represents GAIC's Completion Contractor's price to complete the work outlined in PCO #12 and related documents pursuant to GAIC's Consultant's RFP and specifically RFP Add Alternate #12. Owner will issue a formal Change Order in this amount within ten (10) working days after Notice to Proceed is issued by Owner to GAIC. 2 4. Surety to Perform Remaining Work. Surety shall be responsible for the completion of all Work, including the replacement of the Holding Building Roof as outlined below in this Section, in accordance with the conditions of the bond, Contract, and this Agreement ("Remaining Work/Obligations"), specifically, but not limited, to the conditions described under section 10 of the Terms and Condition listed below. Surety shall perform the Remaining Work through one or more completion contractors (hereinafter "Completion Contractor"), subject to written approval by the Owner, which Surety shall engage pursuant to the terms of a separate agreement. Owner hereby acknowledges that Surety is not acting as a contractor and is not licensed as a contractor in the State of California, and hereby agrees to fully and forever waive and release any and all claims that Owner might allege against Surety on the grounds that Surety is an unlicensed contractor for the work performed pursuant to the Agreement. Additionally, HYM inadvertently removed the existing standing seam metal roof of the Holding Building. GAIC shall replace the standing seam metal roof in kind at no cost to Owner and Owner will pay for any necessary repairs to the existing damage of the standing seam metal roof substrate through an additive change order to be negotiated after construction resumes. In exchange for providing this new standing seam metal roof, GAIC will not be required to provide the specified cool roof membrane system over the new standing seam metal roof. Owner agrees to assign its rights for the replacement of the roof only under HYM's Commercial General Liability insurance policy. The Parties agree to cooperate with another to the extent reasonably necessary in submitting any potential insurance claim(s) with HYM's Commercial General Liability insurance carrier. 4.1 Disputed Work. The parties acknowledge that there is a disagreement whether the scope of work outlined in PCO No. 11 was validly executed and thus, incorporated as part of the Contract and Remaining Work/Obligations ("Disputed Work Item."). In order to avoid any further delay of the Project, GAIC and Owner shall in good faith continue to work together to resolve any and all pending issues pertaining to this Disputed Work Item to the extent practicable after the execution of this Agreement. Owner and GAIC shall retain any and all rights provided by the either the Contract, this Agreement, or by law which pertain to resolving the Disputed Work Item through any legal means available. 5. Owner's Rights and Obligations Under the Contract. Except to the extent provided in this Agreement, Owner shall have all rights, obligations and responsibilities under the Contract with respect to Surety, to the reasonable extent and effect as if Surety had executed the Contract. 6. Owner's Right With Respect to Changes in the Work. Owner reserves the right, to the extent appropriate under the Contract and this Agreement, to issue Change Orders. The terms of these Change Orders, including attendant extensions of time and valuation of Change Order work, shall be determined as provided in the Contract. Surety reserves the right to refuse to perform any extra or additional work if such work constitutes a cardinal change under the Contract. Owner reserves the right to dispute that 3 the extra or additional work constitutes a cardinal change and to immediately submit the dispute to mediation with a mutually agreeable mediator followed, if necessary, by legal action, including but not limited to any appropriate injunctive or other equitable relief. 7. Schedule for Completion of Remaining Work and New Completion Date. Completion Contractor shall furnish to Owner all insurance certificates and other proofs of insurance required by the Contract prior to starting work. The Owner will give a Notice to Proceed after all insurance requirements of the Contract have been met. GAIC shall complete the Remaining Work/Obligations within 200 working days ("Takeover Final Completion Date") after the commencement date stated in the Notice to Proceed. Owner waives any right to liquidated damages permitted under the Contract accruing prior to the Takeover Final Completion Date, but retains the right to assess liquidated damages if the Surety does not complete the Project by the Takeover Final Completion Date, subject to claims by Surety for excusable and/or compensable delay, at the rate of $1,500 per calendar day, and at Owner's discretion. If assessed by the Owner, GAIC shall be liable for liquidated damages after the Takeover Final Completion Date. 8. Completion Contractor. The Completion Contractor shall be a contractor to the Surety, and no contractual relationship shall exist between Owner and Completion Contractor pursuant to this Agreement. Insurance and license requirements for the Completion Contractor shall be in accordance with the Contract Documents. The Completion Contractor shall not be required to procure new surety bonds identifying the Owner as obligee. Owner acknowledges that, subject to the terms of the Contract, the Completion Contractor is authorized to make routine day-to-day decisions regarding the operation and manner of performing the Remaining Work, but does not have authority to: (i) agree to any changes in the Contract or Remaining Work other than minor design changes or clarifications, with advance notice to Owner, that do not increase the Project's cost nor extend its schedule (ii) agree to any Change Orders; (iii) agree to any back charges or deductions of any nature; (iv) agree to any schedule changes; or (v) agree to any adjustments in the Contract amount or Remaining Work other than minor design changes or clarifications that do not increase the Project's cost nor extend its schedule , without the Surety's prior express written consent which shall be delivered to Owner as a condition precedent to the Completion Contractor negotiating items (i) through (v), such consent not to be unreasonably withheld. The Remaining Work shall be subject to inspection and acceptance by the Owner and applicable federal, state and local agencies with jurisdiction, as provided in the Contract. The Owner shall forward concurrently to Surety (by U.S. Mail or email as appropriate), a copy of all its written communications directed to the Completion Contractor. 9. Surety Representative. All communications and administration will be between the Owner and the Surety and its consultant, Mike Tomeo of J.S. Held, LLC (the "Consultant"). The Surety hereby designates and authorizes Consultant to sign, on Surety's behalf, any instrument which is required, or may be requested, by the Owner in connection with the administration of the Contract. .19 10. Preservation of the Penal Sum Of Performance Bond. The Owner hereby confirms that GAIC's liability and obligation hereunder shall not extend beyond the penal sum of its Performance Bond. All payments made by GAIC previously, and those made in the future, have been and will be credited against the penal sum of the Performance Bond, less the amount paid to GAIC under the Contract and this Agreement. Neither this Agreement nor any other GAIC act constitutes a waiver of such penal sum or an increase in the liability of GAIC under the Performance Bond. 11. Payment Bond and Payment Bond Claims. The Payment Bond shall remain in full force and effect in accordance with its terms and provisions. The total liability of the Surety under the Payment Bond is limited to and shall not exceed the penal sum of the Payment Bond. 12. Payment Requisitions. Surety, through its Completion Contractor, shall submit to Owner all information and/or documentation required regarding the work performed under the Contract, to conform and support the requisition process and schedule established under the Contract. Owner recognizes that Surety shall be completing the Remaining Work through the services of the Completion Contractor. Subject to requirements of the Contract Documents, Owner shall accept the Completion Contractor's work, progress of the work, quality of the work, conformance of the work to the requirements of the Contract, payments to others, warranty and maintenance of the work, and all other matters pertinent to the Contract, wherever such representations are required by the Contract, as if those representations had been made by Surety, since Surety may have no personal knowledge of such matters. 13. Satisfaction of Surety's Performance Obligation. Surety's satisfaction of its obligations under the Contract, the Bonds and this Agreement or Surety's expenditure of the Performance Bond Penal Sum, whichever comes first, shall satisfy Surety's performance obligations under the Contract, its Performance Bond and this Agreement. Owner represents that Principal would have been required to complete all of its obligations under the Contract had Principal not been declared to be in default and that, prior to the date of this Agreement and other than approved changed orders, Owner had not made any agreement with Principal that any item of work included in the Contract would not have to be performed. 14. Notices. All notices and correspondence to Owner, other than routine email correspondence, shall be mailed, with a copy by email, to: Nabil Saba P.E. Executive Director, Public Works Agency City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92702 nsaba(&,santa-ana. org 5 with copy to: City Attorney City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92702 j montoya&Santa-ana. org All notices and correspondence to Surety, other than routine email correspondence, shall be mailed and emailed to: C. Michael Mason, Esq. Senior Financial Products Claims Professional Great American Insurance Company 301 East Fourth Street, 241h Floor Cincinnati, OH 45202 cmason3ngai_g com With a copy to: Mike Tomeo J.S. Held, LLC 1375 Dove Street, Suite 250 Newport Beach, California 92660 mtomeogj sheld.com 15. No Third -Party Rights. Nothing in this Agreement shall be deemed to create any rights in favor of, or to inure to the benefit of, any third parties, or to waive or release any defense or limitation against third party claims. 16. All Claims Referred to Surety. Owner recognizes that Surety may be liable to unpaid suppliers and subcontractors of Principal. Other than as required by law, Owner agrees to make no representations or promises of payment to these suppliers and subcontractors and to refer all inquiries to Surety. 17. Surety's Performance Rights Confirmed. Nothing shall limit Surety's rights as a Completing Surety under the Contract and applicable law. Owner hereby recognizes those rights, including the right of equitable subrogation. Further, Owner recognizes Surety's rights as a performing Surety under the Contract, including the right to additional compensation or damages where allowed or appropriate under the Contract or applicable law for claims or matters arising after the date of this Agreement. The Owner expressly agrees and acknowledges: (i) that Surety is entering into this Agreement not as a contractor, but as a means of satisfying the Surety's performance bond obligations; (ii) that the Surety has provided to Owner the Completion Contractor, a 2 licensed contractor, to finish the Project; and (iii) that the Owner hereby forever releases and discharges any and all claims that the Surety as an unlicensed contractor. 18. Agreement Binding on Successors. This Agreement shall be binding upon the successors and assignees of Surety and Owner. Surety shall not assign this Agreement without the written consent of Owner. Assignment without such written consent shall be void. 19. No Modification Except in Writing_. This Agreement cannot be modified except in a writing signed by both Owner and Surety. 20. This Agreement Controls. In case of conflict between the provisions of this Agreement and the provisions of the Contract and/or Performance and Payment Bonds, this Agreement shall control. Notwithstanding any other provision herein, this Agreement shall not be interpreted to limit any of the Owner's rights under the Contract or the Performance Bond. Further, this Agreement, the Contract and the Performance and Payment Bonds constitute the entire Agreement between Owner and Surety and, together, supersede all prior negotiations, representations, offers, other writings and oral statements of every description. 21. Construction and Application of Law. The parties stipulate that this Agreement and all agreements or documents incorporated herein shall not be subject to the rule of construction that a written agreement is construed against the party preparing or drafting that Agreement. The parties also agree that this Agreement and its performance shall be governed by and construed in accordance with all applicable local, state, and federal laws, regulations, rules, and ordinances. 22. Validity. The provisions of this Agreement shall be applied and interpreted in a manner consistent with each other so as to carry out the purposes and intent of the parties, but if for any reason any provision is unenforceable or invalid, such provision shall be deemed severed from this Agreement and the remaining provisions shall be carried out with the same force and effect as if the severed provision had not been a part of this Agreement. The headings of the Paragraphs are included solely for convenience of reference, and if there is any conflict between such headings and the text of Agreement, the Agreement shall control. This Agreement shall be governed by the laws of the State of California. 23. No Waiver. The failure of either party to exercise in any respect a right provided for in this Agreement shall not be deemed to be a subsequent waiver of the same right or of any other right. 24. Counterparts. This Agreement may be executed in any number of counterparts each of which, when executed and delivered, shall be deemed to be an original with all the counterparts constituting but one and the same instrument. 7 25. Reservation of Rights. Notwithstanding any contrary statement or provision of this Agreement, nothing contained herein nor any payments made pursuant hereto nor any performance hereunder shall constitute a waiver of any claims by any party to this Agreement. 26. Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that, by so executing this Agreement, the parties hereto are formally bound to the provisions of this Agreement. 27. Applicable Laws. In performing its obligations and duties under this Agreement, each party shall comply with all applicable local, state, and federal laws, regulations, rules, and ordinances. WHEREFORE, the parties have executed this Agreement by their authorized representatives. This Agreement is effective as of the last date written below. DATED: CITY OF SANTA ANA Thomas R. Hatch Interim City Manager DATED: ATTEST Jennifer L. Hall City Clerk DATED: 1/8/2023 APPROVED TO FORM �� OM J e Montoya Assistant City Attorney [Signatures continued on the following page] DATED: RECOMMENDED FOR APPROVAL: Nabil Saba, P.E. Executive Director of Public Works Agency DATED: GREAT AMERICAN INSURANCE COMPANY By: C. Michael Mason Its: Senior Financial Products Claims Professional 0 Takeover Agreement - Santa Ana Zoo (CAO 1.8.2024) (002) Final Audit Report 2024-01-09 Created: 2024-01-09 By: David Quintana (DQuintana@santa-ana.org) Status: Signed Transaction ID: CBJCHBCAABAAKkpuwxJ-bITzRMfJQzbNVC21zoKCovks "Takeover Agreement - Santa Ana Zoo (CAO 1.8.2024) (002)" H istory Document created by David Quintana (DQuintana@santa-ana.org) 2024-01-09 - 10:23:37 PM GMT- IP address: 98.153.69.210 Document emailed to cmason3@gaig.com for signature 2024-01-09 - 10:24:21 PM GMT Email viewed by cmason3@gaig.com 2024-01-09 - 10:52:45 PM GMT- IP address: 136.226.122.195 &o Signer cmason3@gaig.com entered name at signing as C. Michael Mason 2024-01-09 - 10:53:43 PM GMT- IP address: 136.226.122.195 d4 Document e-signed by C. Michael Mason (cmason3@gaig.com) Signature Date: 2024-01-09 - 10:53:45 PM GMT - Time Source: server- IP address: 136.226.122.195 Q Agreement completed. 2024-01-09 - 10:53:45 PM GMT a Adobe Acrobat Sign EXHIBIT 5 FIRST AMENDMENT TO CONSTRUCTION SUPPORT SERVICES AGREEMENT WITH CLR DESIGN INC. THIS FIRST AMENDMENT TO AGREEMENT is entered into this 16th day of January 2024, by and between CLR Design Inc. ("Consultant"), and the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("City"). RF.0 TTAT,C A. On April 20, 2021 the City entered into Agreement #A-2021-060 ("Agreement") with Consultant to provide construction administration and management services for the Santa Ana Zoo Giant River Otter and Primate Trails Project and related matters for the term of two years with two (2) one-year renewal option(s) exercisable by the City Manager and the City Attorney. B. On April 3, 2023, the parties exercised the first option to extend the Agreement (#A-2021- 060-01) for an additional one-year term until April 19, 2024. The Agreement is current and in -effect. C. Due to changes with an outside contractor, the parties have determined that the services provided for Task 5 Services for Construction Administration and Project Closeout will require additional time and compensation for Consultant to complete said services. D. The parties therefore wish to amend the Agreement to supplement the scope of services, increase the compensation to the Agreement, and exercise the second and final option to extend the term of the Agreement. THE PARTIES THEREFORE AGREE: 1. Section 1, SCOPE OF SERVICES, is amended to include Exhibit A-1 to this First Amendment, attached hereto and incorporated by reference, to reflect the additional time and services required for Task 5 services previously contemplated by the Agreement. 2. Section 2, COMPENSATION, is amended to remove and replace the hourly billing and rate schedule in Exhibit B with Exhibit B-1 to this First Amendment, attached hereto and incorporated by reference. The compensation to this Agreement shall be increased by an additional $75,000. The total amount to be expended, during the term of this Agreement, shall not exceed $193,000. 3. Section 3, TERM, is amended to reflect the parties option to exercise the second and final extension of the term of the Agreement for an additional one year period through April 19, 2025. 4. Except as hereinabove modified, the terms and conditions of said Agreement remain unchanged and in full force and effect. Page 1 of 2 IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to the Agreement the date and year first above written. ATTEST: Jennifer L. Hall City Clerk APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney �� n _OL J se Montoya Assistant City Attorney RECOMMENDED FOR APPROVAL: Nabil Saba, P.E. Executive Director of Public Works Agency CITY OF SANTA ANA Thomas R. Hatch Interim City Manager CONSULTANT 90�- 13Gregg Leicester Title: Principal Page 2 of 2 Exhibit A-1 ECIr D E S I G N EXHIBIT DESIGN • ARCHITECTURE • LANDSCAPE ARCHITECTURE mark e. beauchamp, asla • gregoryj. dykstra, aia • gregg b. leicester, asla August 2, 2023 Edward A. Torres Senior Engineer Public Works Agency I CIP Delivery Engineering City of Santa Ana 20 Civic Center Plaza, M-36 Santa Ana, CA 92702 Sent via email Re: Contract Amendment for Task 5 Services - Santa Ana Zoo Giant River Otter & Primate Trails Project (No. 16-2658) Dear Edward, As a follow-up to our recent correspondence, we appreciate this opportunity to submit a proposal for an extension to our Task 5.2 [Construction Administration] and Task 5.3 [Project Closeout] Phases services for the above referenced project. As discussed, we understand the City of Santa Ana is going through a process to procure a new general contractor to execute the final stages of construction. This will require additional time both for the procurement process as well as construction. At this time, we are assuming the construction duration, and services by our team, will extend 6-12 months from now. This Contract Amendment assumes that CLR Design, and our team of sub -consultants, will continue to perform the scope of services defined in our current Agreement and we will invoice accordingly until those services are complete. We have approximately $30K +/- remaining in unbilled fees and expenses, to date. In anticipation of additional virtual meetings, correspondence, and on -site construction observation visits, we are proposing to proceed on a time and materials basis beyond our current Agreement. Additional Professional Fees and Expenses Summarv: Consultant Scope NTE Fees & Expenses* CLR Design and team Tasks 5.2 Construction Administration $25,000 of Engineering Sub- and 5.3 Project Closeout Consultants Total $25,000 *Reimbursable expenses for travel (local from CA office), reproduction, scanning, mailing/shipping and communication will be billed at cost as incurred. t 215.564.0250 • www.clydesign.com • 833 chestnut street, suite 909 • philadelphia, pa 19107 34921 calle del sol • capistrano beach, ca 92624 CLR will carry out the work described here on a Time and Materials basis, for a Not -to Exceed (NTE) amount of $25,000. Invoices are prepared monthly based on work completed and are due upon receipt. If subsequent Zoo/City of Santa Ana directives alter the anticipated scope of work, CLR reserves the right to modify this and future Proposals. Through our monthly project correspondence and invoicing process, we will keep you apprised of our Team's time expended as we continue with this project. We trust this proposal reflects your understanding of the desired work to be completed by the CLR Team. Please review this Amendment and if you have any questions, do not hesitate to call. If this proposal is acceptable to you, please execute one copy and return it to CLR for our files. We look forward to continuing our work with you on this exciting project. Sincerely, Gregg Leicester, ASLA, LEED GA Principal CLR Design Inc. cc: Karen Marshall Attachments: Hourly Rate Chart (2023) Accepted By: City of Santa Ana Date Kelsey Weber, AIA Architect CLR Design Inc. Er D E S I G N Exhibit B-1 EXHIBIT DESIGN • ARCHITECTURE • LANDSCAPE ARCHITECTURE mark e. beauchamp, asla • gregory j. dykstra, aia • gregg b. leicester, asla Standard Hourly Billing Rate Schedule Classification Hourly Billing Rate (US Dollars) Senior Principal $265.00 Principal $260.00 Senior Associate $215.00 Landscape Architect — Level 5 $195.00 Landscape Architect — Level 4 $175.00 Landscape Architect — Level 3 $130.00 Landscape Architect — Level 2 $110.00 Landscape Architect — Level 1 $ 95.00 Architect — Level 5 $195.00 Architect — Level 4 $175.00 Architect — Level 3 $130.00 Architect — Level 2 $110.00 Architect — Level 1 $ 95.00 Graphic Designer $105.00 Technical Support $ 85.00 Reimbursable Expenses Rate Printing, Reproduction, Postage & Shipping Travel and Subsistence cost cost The rates stated above represent current billing rates. CLR reserves the right to modify these hourly rates to reflect increases resulting from annual salary reviews. CLR Design, Inc., 0110112023 t 215.564.0250 • www.cirdesign.com • 833 chestnut street, suite 909 • philadelphia, pa 19107 34921 calle del sol • capistrano beach, ca 92624