DESIGN-BUILD AGREEMENT
THIS DESIGN-BUILD AGREEMENT ( "Contract" or “Agreement”) is made and entered into this_____________ ("Effective Date") by and between the CITY OF ANAHEIM, a municipal corporation ("City"), and _________________, a California Corporati on ("Design-Builder") for desig n, procurement, site management, construction, testing, and com mission of as-needed Water Systems and Facilities Projects (“Project”). This Agreement is effective on the Effective Date. The Effective Date of this Agreement sh all be the latest date of execution hereinafter set forth opposite the names of the signators hereto. In the event Design-Builder fails to set forth a date of execution opposite the name of Design-Builder’s signator, Design-Builder hereby authorizes City, by and through its representative, to insert the date of execution by Design -Builder’s signator(s) as the date said Agreement, as executed by Design-Builder, is received by City.
R E C I T A L S:
WHEREAS, t he City Charter and Chapter 10.06 of the An aheim Municipal Code authorize the City to use design-build procurement for the design and construction of certain public works projects of the Public Utilities Department;
WHEREAS, Design-Builder shall perform, either directly or through subcontracts, the services set forth in this Agree ment and the Contract Documents;
WHEREAS, Design -Builder warrants that it is ready, willing and able to design and build the Project to the terms and conditions of the Agreement; and
WHEREAS, Design-Builder has t he necessary professional expertise and skill to perform such services.
NOW, THEREFORE, in consideration of the covenants hereinafter set forth, City and Design-Builder mutually agree as follows:
ARTICLE 1 – CONTRACT DOCUMENTS AND INTERPRETATION
1.1 Definitions.
The meaning of all term s used in this Agreement and not otherwise defined herein is contained in the General Conditions. City and Design -Builder are sometimes individually referred to as a “Party” and collectively as the “Parties.” Except as indic ated otherwise, all references to City include its elected officials, officers, directors, employees, agents, and volunteers. Except as
indicated otherwi se, all references to Design -Builder include its per sonnel, employees, agents, and Subcontractors.
1.2 Scope of Work.
1.2.1 If the City awards a Work Order Package to Design -Builder, Design-Builder agrees to perform the Work and supply all materials required for the Work in connection with the awarded Work Order Package as requested by City. The Work is gene rally described in the "General Scope of Work," attached hereto as Exhibit A and incorporated herein by this reference. The specific Work to be provided by Design -Builder shall be specified in individual work order packages (“Work Order Packages”) to be pr epared and issued by the Director of Public Works or the City’s Public Utilities General Manager (“General Manager”), as applicable , or their respective designees . By entering into this Agreement, ANAHEIM does not give any guarantee to Design-Builder that City will award Design-Builder any Work Order Packages.
1.2.2 Each Work Order Package shall contain a specific Work description, plans, bid list, scheduled start and Work completio n date, and bond requirements. The term s and conditions in this Agreement s hall govern performance under, and shall apply to, all Work Order Packages received from City.
1.2.3 Any preprinted or other Design -Builder-inserted provisions on Design-Builder’s acknowledgment or other submittals that purport to set forth general terms and conditions shall not govern or have any application to transactions between the Parties involving any Work Order Package that references this Agreement.
1.3 Contract Documents.
The “Contract Documents” shall consist of the following documents, all of which are either attached hereto as Exhibits or are incorporated into this Agreement by this reference, with the same force and effect as if the same were set forth at length herein:
1. This Agreement, including all Exhibits and attachments;
a. General Scope of Work attached hereto as Exhibit __;
b. The Performance Bond attached hereto as Exhibit __;
b. The Payment Bond attached hereto as Exhibit __;
c. Design-Builder’s Management and Key Personnel Chart
attached hereto as Exhibit __;
d. The General Conditions attached as Exhibit ____;
2. Design Documents and Construction Documents prepared by Design-Builder and approved by the Division of State Architect in writing;
3. City Standards.
4. Public Works Construction Standards.
5. The Design and Pe rformance Criteria comprised of the Scope of Work;
6. The Proposal, including the Best and Final Offer;
7. Change Orders; and
8. Work Order Packages awarded to the Design-Builder
1.4 Order of Precedence.
Each of the Contract Documents is an essential p art of the Contract. The Contract Documents are intended to be complimentary and to describe and provide for the completion of the Work . In the event of conflicts or discrepancies among the Contract Documents, the order of precedence shall be as set fort h below:
1. Change Orders;
2. Work Order Package;
3. Agreement and those documents listed under Subsection 1 of Section 1.2, except the General Conditions;
4. General Conditions;
5. Design Documents and Construction Documents prepared by Design-Builder;
6. Best and Final Offer;
7. Design and Performance Criteria;
8. City Standards (including, the Public Works Construction Standards);
9. Proposal, except the Best and Final Offer
1.5 [INTENTIONALLY OMITTED]
1.6 Entire Agreement.
This Agreement together with all other Contract Do cuments (including any awarded Work Order Packages) constitutes the entire agreement between the Parties and all other representations or statements theretofore made, verbal or written, are merged herein. Both Parties have, with the assistance of their respective counsel, drafted the provisions contained in this Agreement.
Therefore, no provision in this Agreement will be construed in favor of or against any Party by virtue of the identity of its preparer. Except for Work Order Packages awarded to Design -Builder, this Agreement may be amended only by written Modification executed by duly authorized representatives of the Parties hereto or according to the procedure set forth in the General Conditions. I f any provision of this Agreement shall be held inval id, such invalidity shall not affect the other provisions hereof and the provisions of this Agreement are intended to be and shall be deemed severable.
ARTICLE 2 – TIME FOR PERFORMANCE
2.1 Term of Agreement.
2.1.1 The term of this Agreement (“Term”) shall commence on the Effective Date, as defined herein, and shall terminate five (5) years from the Effective Date, unless terminated earlier as provided herein. Notwithstanding the foregoing, The General Manager or designee is authorized to extend the Term of the Master Agreement for no more than two (2) additional two year terms after the initial terms, and for such a time period necessary for completion of outstanding Work Order Packages in progress at the end of each Term. In no event, however, shall the extension exceed twenty-four (24) months.
2.1.2 All Parties recognize that the co ntinuation of this Agreement after the clo se of any fiscal year of City , which fiscal year ends on June 30 of each year, shall be subject to budget approval providing for or coverin g contract items as an expenditure in the budget. City does not represent that the budget or any particular budget item will be adopted, since budget determi nations are made by the City Council at the time of the consideration of each budget. No penalty shall accrue to City in the event this provision shall be exercised. Should termination be accomplished in accordance with this Section, a settlement shall
be negotiated by the Parties based on items delivered, Work provided, monies paid and monies due.
2.2 Commencement and Completion of Performance.
2.2.1 When Work under this Agreement is required, the City will send a written or electronic Work Or der Package to the Desig n-Builder and all Design-Build Competitors. The City will only accept proposals from t he Design- Builder and the Design -Build Competitors for Work Order Packages and will reject proposals submitted by all other contractors. I f interested in performing the Work, Design-Builder shall submit, along with other Design-Build Competitors, a sealed proposal indicating cost and other information requested. In the alternative, Design-Builder shall submit an electronic sealed proposal when it is required by a Work Order Package, and Design-Builder shall abide by all Work Order Package’s electronic propo sal requirements. Proposals may be withdrawn by written notice to the Public Works Department for any reason at any time prior to the deadline set forth in a Work Order Package and the proposal guarantee for the p roposal shall be re turned. Timely withdrawa l of a p roposal shall not prejudice the right of a design-build contractor to timely file a new p roposal.
Nothing in this Chapter shall require the City to accept any p roposal and the City hereby reserves t he right to reject any and all p roposals for a Wor k Order Package.
2.2.2 Each Work Order Package shall contain a minimum of the following: (1) the procedures to be followed for submitting Work Order Package, the criteria for evaluation of the Work Order Package and their relative weight, the procedure for selection of the Successful Proposer a nd the timing for making awards; (2) performance criteria; (3) a description of the project approach, work plan or other submi ttals to be submitted with a p roposal, with guidance as to the form and level of complete ness required ; (4) a schedule for planned commencement and completion of the Work Order Package; (5) t he minimum qualifications that the design -build contractor will be required to possess to be deemed responsive; (6) essential design disciplines, construction trades or types of subcontract ors that must be listed by the design -build contractors in the proposal; and (7) a ny other information that the Public Works Department in its discretion chooses to supply, including without limitation, surveys, soils rep orts, drawings or models of existing structures, environmental studies, photographs, or references to public records, includin g dissemination procedures for critical infrastructure information.
2.2.3 The selection criteria for the award of a Work Order Package may include, but not be limited to: (1) a n evaluation of overall quality, capability, resource availability and financial stability of the design -build contractor; (2) a n evaluation of references provided with respect to responsiveness, quality of work, timeliness and overall performance; (3) evaluation of the design-build contractors experience, training and qualifications on similar types and sizes of projects ; (4)
consideration of items such as price, proposed design approach, initial and/or life cycle costs, project features, quality, capacity, schedule, and operational and functional performance of the facility; (5) extent to which a design -build contractor’s proposal meets the Performance Criteria and other requirements set forth in a Work Order Package; (6) analysis of the cost rela tive to a design -build contractor’s ability to meet the Performance Criteria and other requirements set forth in the Work Order Package.
2.2.4 Depending on the number of p roposals received for a Work Order Package , th e Public Work Department may develop a “short list” of top ranked design-build contractors. The Public Work Department may require “short listed” design -build contractors to submit to an interview and/or make a presentation to establish a final ranking.
2.2.5 The Public Works Department will then begin negotiations with the top ranked design-build contractor. The negotiations may include but not be limited to project costs, scope, and schedule. If negotiations are unsuccessful, negotiations will cease with the top ranked design-build contractor and may begin with the next highest ranked design-build contractor.
2.2.6 The Public Works Department shall award a Work Order Package to the design -build contractor whose p roposal is determined to be the most advantageous to the City, taking into consideration price and the evaluation factors set forth in the Work Order Package.
2.3 Liquidated Damages for Design-Builder Delays.
2.3.1 Design-Builder and City have agreed to liquidate damages with respect to Design -Builder’s failure to achiev e Substantial Completion of Work Order Package by its Work Order Package Deadline . The Parties intend for the Liquidated Damages set forth herein to constitute liquidated damages as such term is used in Government Code Section 53069 .85 Design -Builder acknowledges and agrees that the Liquidated Damages are intended to compensate City solely for Design -Builder’s failure to meet the deadline for Substantial Completion and shall not excuse Design -Builder from liability from any other bre ach, including any failure of the Work to conform to the requirements of the Contract Documents.
2.3.2 In the event that Design -Builder fails to achieve Substantial Completion of the Work within the Work Order Package Deadline, Design-Builder agrees to pay City the following amount:
a) $2,000 per D ay for each Day that Substantial
Completion is delayed for the first thirty (30) Days of delay;
b) $3,500 per D ay for each Day that Substantial
Completion is delayed thereafter provided, however, that in any event Design-Builder’s liability to City for Liquidated Damages shall be limited to ten percent (10%) of the Work Order Package Price.
2.3.3 Design-Builder acknowledges and agrees that the foregoing damages have been set based on an evaluation by City of damages that it will incur in the event of late completion. Design -Builder and City agree that the amount of such damages is impossible to ascertain as of the date of execution hereof, and that such Liquidated Damages are necessary to fix Design-Builder’s costs and to avoid later disputes over which items are properly chargeable to Design-Builder. It is understood and agreed by Design -Builder that any Liquidated Damages payable pursuant to this Agreement are not a penalty and that such amounts are not man ifestly unreasonable under the circumstances existing as of the date of execution of this Agreement.
2.3.4 It is further mutually agreed that City shall have the right to deduct Liquidated Damages against progress payments to be made to Design - Builder or retainage held by City for subsequent release to Design -Builder as may be due Design-Builder from time to time during its performance of the Work.
In the event the remaining unpaid Work Order Package Price is insufficient to cover the full amount of Liqu idated Damages, Design -Builder shall pay the difference to City.
2.4 [INTENTIONALLY OMITTED]
2.5 Delays and Extensions of Time.
2.5.1 Non-Compensable Delays . The Parties acknowledge that the following types of delays and events are not within the responsibilit y or control of City, and are reasonably contemplated by the Parties to occur during the course of performance of a Work Order Package which may impact the schedule for performance: Force Majeure events as described in the General Conditions (“Non -Compensable Delays”). Notwithstanding anything to the contrary in the Contract Documents, an extension of the Work Order Package Deadline, to th e extent permitted under Section 8.2 of the General Conditions, shall be the sole remedy of Design -Builder for the abov e referenced Non - Compensable Delays. In no event shall Design -Builder be entitled to any compensation or recovery of any damages in connection with the Non - Compensable Delays identified in this section including, without limitation, consequential damages, lost opportunity costs, impact damages or other similar remuneration.
2.5.2 Compensable Delays. If the date for Substantial Completion of a Work Order Package is delayed by events which are the responsibility of or within the control of the City, are un foreseeable to Design -Builder and would
constitute an unreasonable charge against Design -Builder under the circumstances involved, the Design -Builder shall be entitled to an equitable adjustment of the Work Order Package Deadline and/or the Work Order Package Price, subject to the requirements of Article 8 of the General Conditions, including the notice and procedural requirements therein.
ARTICLE 3 –LIMITS AND INCENTIVE
3.1 Per Project Limit. The Parties understand and agree that full and complete payme nt for Work performed for a single Work Order Package or in shall not exceed the sum of THREE MILLION DOLLARS ($3,000,000.00), excluding change orders but inclusive of hiring incentives, if any. Design - Builder’s performance of the Work shall be compensate d either on a lump sum basis in an amount not to exceed the amount set forth in the applicable Work Order Package or Request or on a Unit Price, Crew Hour Rate or Time and Equipment basis as set forth in the Work Order Package.
3.2 [INTENTIONALLY OMITTED]
ARTICLE 4 – [INTENTIONALLY OMITTED]
ARTICLE 5 – DESIGN-BUILDER'S DUTIES AND RESPONSIBILITIES
5.1 General Scope of Services.
5.1.1 For every Work Order Package awarded to the Design - Builder, the Design-Builder shall furnish all design and other Services, provide all equipment and materials and undertake all efforts to design, construct, and perform the Work in accordance with the requirements of the applicable Work Order Package, Contract Documents, all Governmental Approvals, the City- approved Design and Construction Documents, all Applicable Laws, and all other applicable safety, environmental an d other requirements taking into account the constraints affecting the Site. For each Work Order Package awarded to Design- Builder, the Design-Builder shall furnish the design and other Services set forth in the Work Order Package , provide all materials and shall construct the Work Order Package project as designed, all (a) in accordance with all professional engineering principles and construction practices generally accepted as standards of the industry in the State of California, (b) in a good and workmanlike manner, (c) free from defects and (d) in accordance with the terms and conditions set forth in the Contract Documents on a Turnkey Contract Basis.
Except as ot herwise specifically provided in this Contract, all materials, services and efforts necessary to achieve Substantial Completion and ele ments thereof on or before the Milestone Dates provided in the Contract Documents shall be Design-Builder's sole responsibility. The costs of all such materials, services and efforts are included in the Work Order Package Price.
5.1.2 The scope of Work Order Package to be provided by Design-Builder is set forth therein, including applicable Contract Documents as more particular ly descri bed in the Design and Performance Criteria which includes preliminary drawings and specifications.
5.1.3 The Design -Builder, whether a general contractor, construction company or joint venture, shall hold valid California Class “A” General Engineering Contractor and Class "C" licenses from the Effective Date , and shall maintain the licenses at all times during the Term.
5.1.4 All Subcontractors shall hold the appropriate California C - specialty, A-general engineering contractor license or enginee ring license, at t he time of award of a Work Order Package and shall maintain the license s at all times during performance of the Work.
5.1.5 Design -Builder and all Subco ntractors shall have a valid Department of Industrial Relations Registration Numbe r at all time s during performance of a Work Order Package.
5.1.6 Design-Builder and all Subcontractors, including unlisted Subcontractors, shall obtain a Business License Tax Registration form from the City of Anaheim Business License Division, prior to comm encement of a Work Order Package.
5.2 Before Starting Work.
Design-Builder shall submit the following to the City for review and acceptance within ten (10) Days after City's issuance of the Notice to Proceed, and as a condition to payment:
A. A detailed Project Schedule indicating the times (numbers of days or dates) for starting and completing the various sta ges of a Work Order Package including each Milestone Date specified in the Contract Documents;
B. A schedule of required s ubmittals described in Section 3.11 of the General Conditions and the times for submitting, reviewing and processing each submittal; and
5.3 Initial Conference.
Within twenty (20) D ays after the issuance of the Notice to Proceed, a conference attended by City, Design -Builder, and others a s appropriate, will be held to establish a working understanding among the Parties as to the Work Order Package and to discuss the design concepts, updating schedules, progress meetings, procedures for handling submittals, processing Applications
for Payment, maintaining required records, coordination with S ubcontractors and other administration matters.
5.4 Evaluation of Preliminary Submittals.
5.4.1 At least ten (10) D ays before submission of the first Application for Payment, a conference attended by Desig n-Builder, City, and others as appropriate, will be held to review for acceptability the submittals required by the Contract Documents. Design-Builder shall have an additional ten (10) D ays to make corrections and adjustments and to complete and resubmit the documents. No progress payment shall be made to Design -Builder until the required submittals are acceptable to City. The detailed Project Schedule will be acceptable to City as providing an orderly progression of the Work Order Package to completion within any specified Milestone Dates and the Work Order Package Deadline, but such acceptance will neither impose on City responsibility for the sequencing, scheduling or progress of a Work Order Package nor interfere with nor relieve Design -Builder from D esign-Builder’s full responsibility therefore. The format and structure of the Project Schedule will be as set forth in the Contract Documents and approved by City. City’s acceptance shall not be deemed to confirm that the schedule is a reasonable plan f or performing the Work. Design -Builder’s schedule of submittals will be acceptable to City as providing a workable arrangement for reviewing and processing the required submittals.
5.5 Key Personnel.
5.5.1 The Project Manager or designee is required to be on Sit e full time and shall manage and coordinate all commercial and technical aspects of a Work Order Package . The Project Manager shall submit monthly progress reports to the City and maintain the Project Schedule. The Project Manager originally assigned to a Work Order Package shall not be changed once the Project has commenced unless the Project Manager ceases to be in the Design - Builder’s employ ment or the City determines his performance to be unsatisfactory. The Project Manager and any authorized designe e of the Project Manager shall be subject to the review, approval, and removal provisions of Section 5.5.2 below. The Site manager or Site managers may be different from the Project Manager. The Site manager or Site mangers will be required to live in or near Anaheim with 24 -hour access during the period of time when construction is performed on the Sites.
5.5.2 In addition to the Project Manager, Design -Builder shall employ the Site manager(s) and key personnel ident ified in the Proposal or replacement personn el approved by the City in writing. City may at any time elect to add job categories to the key personnel list. City has the right to review the qualifications and character of each individual appointed to a key position (including personnel employed by Subcontractors) and to accept or reject the use
of such individual. Design-Builder shall submit to the City in writing any proposed change in key personnel and obtain City’s prior written consent to any such change. The City’s consent to a change in key personnel shall not be unreasonably withheld. If City determines in its sole discretion that performance of any key personnel is unsatisfactory, then City has the right to direct a change in such key personnel. A California registered c ivil e ngineer is required to be present on the Sites during any civil construction.
5.6 Design Phase Services.
5.6.1 Design Professional Licensing Requirements . City does not intend to contract for, pay for, or receive any design services which are in violation of any professiona l licensing laws, and by execution of this Contract, Design-Builder acknowledges that City has no such intent. It is the intent of the Parties that Design -Builder is fully responsible for fur nishing the design of the Work Order Package project , although the fully licensed Design Team Members will perform the design services required by the Contract Documents. Nothing in this article shall create a contractual relationship between such Persons and the City.
5.6.2 Standard of Care . All design Services to be per formed by Design-Builder, the Design Team Members, other Subcontractors, and their employees identified by the Design -Builder or other Persons approved by the City shall be performed in an expeditious and professional manner using architects, engineers and other professionals properly licensed and duly qualified in the j urisdiction in which the Work is located. The professional obligations of such persons shall be undertaken and performed in the interest of the Design - Builder. All design Services performe d pursuant to this Agreement shall be (a) provided with the standard of judgment, care, knowledge and skill which prevails among design professionals, of knowledge and skill, engaged in practice within Southern California under the same or similar circumst ances, involving the design and construction of an improvement such as that identified in a Work Order Package , and (b) in compliance with the Contract Documents and Applicable Law s. City’s review and approval shall in no way relieve Design - Builder’s full and complete responsibility for a Work Order Package.
5.6.3 Preliminary Design Phase . After City’s issuance of the Notice to Proceed and within the times set forth in the Project Schedule accepted by City, Design-Builder shall:
5.6.3.1 Consult with City to understand City’s
requirements for the Work Order Package and review available data;
5.6.3.2 Advise City as to the necessity of City’s
providing or obtaining from others additional reports, data or services, and assist City in obtaining such reports, data, or services;
5.6.3.3 Identify and analyze requirements of
governmental authorities having jurisdiction to approve the portions of the Work designed or specified by Design -Builder with whom consultation is to be undertaken in connection with the Work Order Package;
5.6.3.4 Prepare P reliminary Design Documents
consisting of surveys, reports, st udies, preliminary drawings, outline specifications, written descriptions of the Work Order Package p roject and other documents to fix and describe the size, quality and character of the entire Work.
The Preliminary Design Documents shall be based and comply with the City Standards, Applicable Laws, the Design and Performance Criteria, and the Public Works Construction Standards; and
5.6.3.5 Furnish the Preliminary Design Documents to
and review them with City for approval within the time indicated in the approved Project Schedule. At the submission of Preliminary Design Documents or soon thereafter, Design -Builder shall conduct a presentation regarding these design documents. Design-Builder shall not proc eed with the Final Design Phase until it receives written authorization from City to do so. The Public Works and Planning Departments of the City re quire a minimum of thirty (30) D ays for one review of design documents.
5.6.4 Final Design Phase. Only after written acceptance by City of the Preliminary Design Documents, Design-Builder shall:
5.6.4.1 On the basis of the acc epted P reliminary
Design Documents , City Standards, Applicable Laws, the Design and Performance Cr iteria, and the Public Works Construction Standards , prepare final Construction Documents showing the scope, extent, and character of the construction to be performed and furnished by Design-Builder, including technical drawings, schedules, diagrams, calculations, and specifications (which, unless otherwise approved by City, will be prepared, where appropriate, in gene ral conformance with the fifty divisions of the Construction Specifications Institute MasterFormat) setting forth the requirements for construction of the Work which shall provide information customarily necessary for the use of those in building trades.
5.6.4.2 Provide technical criteria, written descriptions and design data required for obtaining approvals of such governmental authorities as have jurisdiction to review or approve the final design of the Work Order Package p roject, and assist City in consultations with appropriate authorities.
5.6.4.3 Furnish the above documents, drawings,
calculations and specifications to and review them with City for approval within
the time indicated in the approved Proj ect Schedule at increments of at least 50%, 90%, and 100% completion of the Construction Documents. At each of the foregoing increments or soon thereafter, Design -Builder shall conduct a presentation regarding their submissions . All final design drawings shall be stamped by a professional engineer licensed in that discipline in the State of California. After City’s approval of the final Construction Documents, said documents shall be incorporated into the Contract Documents . Design -Builder shall not proceed with the construction phase unless and until it receives written approval of the Construction Documents or portions thereof.
5.7 Construction Phase Services.
5.7.1 General.
5.7.1.1 Construction Services shall be performed by
Design-Builder and/or by qualifi ed and l icensed contractors, Subcontractors and Suppliers who are selected, paid and acting in the interest of the Design -Builder in accordance with the procedures outlined in the Contract Documents. Design - Builder shall provide, or cause to be provided, and shal l pay for design Services, labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation and other facilities and services necessary for proper execution and completion of a Work Order Package , whether tem porary or permanent, and whether or not incorporated or to be incorporated in the Work.
5.7.1.2 The Design -Builder shall be responsible for
and shall coordinate all construction means, methods, techniques, sequences, and pr ocedures with City and its contractors a s well as any public agencies which may be involved with a Work Order Package.
5.7.1.3 The Design-Builder shall keep the City informed of the progress and quality of the Work in the form of weekly written reports in a format required by the City. Design-Builder shall allow, cooperate, and assist City and its authorized employees and agents to perform inspections and testing of the Work.
5.7.1.4 The Design -Builder shall keep the S ite and
adjacent public right s-of-way free from accumulation of waste materials or rubbish ca used by the Design -Builder’s operations and shall comply with CAL - OSHA rules and regulations . At the completion of construction of the Work, the Design-Builder shall r emove from and about the Site any and all tools, construction equipment, machinery, temporary facilities, materials, waste materials and rubbish. Design-Builder shall not remove any City or City's agent's tools, construction equipment, machinery, temporary facilities, or materials.
5.7.1.5 Certification of Construction . As a condition to final payment to Design -Builder, the authorized responsible managing officer of
each Design Team Member shall provide written certification that the Work has been constructed in accordance with the Work Order Package and all other applicable Contract Documents and w ith th e design provided by such Design Team Member.
5.7.1.6 The Design-Builder shall pay for all utility costs necessary for the performance of the Work, including, water and electricity.
5.7.1.7 If the Design -Builder plans to use City water, he shall make arrangement s for water purchases by contacting the City's Water Utility Costumer Service section at phone (714) 765 -4201, extension 5006, and complete an application for temporary water service. If the Design -Builder plans to use City power, he shall make arrangement s for a temporary electrical service by contacting the City’s electrical Utility, phone number 714-765-5156.
5.7.2 Supervision and Coordination of Construction.
5.7.2.1 Unless otherwise provided in the Contract
Documents to be the responsibility of City or a separate contractor, Design - Builder shall provide through itself or Subcontractors the necessary supervision, labor, inspection, testing, start -up, material, equipment, machinery, temporary utilities and other temporary facilities to permit Design -Builder to comp lete construction of the Work Order Package consistent with the Contract Documents and Applicable Laws.
5.7.2.2 Design-Builder shall at all times exercise
complete and exclusive control over the means, methods, sequences and techniques of construction.
5.7.2.3 Design-Builder shall supervise, inspect and
direct the construction competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to provide the construction of the Work Order Package project in accordance wi th the Contract Documents and Applicable Law . Design -Builder shall be solely responsible to see that the completed construction complies accurately with the Contract Documents and shall keep City advised as to the quality and progress of the Work.
5.7.2.4 Design-Builder shall coordinate its Work with
adjoining property owners , tenants, and the City and its other contractors to provide access to the Site and adjoining property, and shall implement measures to prevent disruption to their operations, occupancy, or works.
5.7.3 Labor, Materials and Equipment.
5.7.3.1 Design-Builder shall provide competent,
suitably qualified personnel to survey and lay out the construction and perform Work Order Package construction as required by the Contract Documents and Applicable Law . Design-Builder shall at all times maintain go od discipline and order at the S ite. Except as otherwise required for the safety or protection of persons or the Work or property at the S ite or adjacent thereto, and except as otherwise indicated in the Contra ct Documents, all construction at the S ites shall be performed during regular working hours, and Design -Builder will not permit overtime work or the performance of construction on Saturday, Sunday or any legal holiday without City’s prior written consent. The regular working hours shall be Monday to Friday, 8:30 am to 3:30 pm.
5.7.3.2 The Design -Builder is prohibited from working
on Saturdays, Sundays, holidays, or after normal business hours, except as limited by written approval from the Engineer before doing s o, and must demonstrate the Work requested to be performed is on the critical path. When Work is performed on Saturdays, Sundays, holidays or after normal business hours at the request of Design -Builder, any extra costs incurred will be born solely by the Design-Builder. Further, any additional costs incurred by the City arising from Work performed on Saturdays, Sundays, holidays or after normal business hours at the request of Design -Builder, including, but not limited to, costs of inspections and tests, shall be reimbursed to City by Design-Builder.
5.7.3.3 Unless otherwise spe cified in the applicable
Work Order Package , Design-Builder shall furnish or cause to be furnished and assume full responsibility for materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, parking, storage, onsite safety and services, construction site offices and supplies, temporary facilities and all other facilities and incide ntals necessary for the furnishing, performance, testing, start -up and completion of the Work. Design -Builder, in the presence of City’s personnel, will direct the checkout of utilities and operations of systems and equipment.
5.7.3.4 All materials and equipment incorporated into
the Work shall be of good quality and new, except as otherwise pr ovided in the Work Order Package. All warranties and guarantees specifically called for by the Contract Documents shall expressly run to the benefit of City. Design -Builder shall furnish satisfactory evidence (including reports of required tests) as to the kind and quality of materials and equipment. All materials and equipment shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance wit h instructions of the applicable Supplier, except as otherwise provided in the Work Order Package.
5.7.3.5 If Design -Builder fails to comply with this
Section 5.7.3 and fails to cure within five (5) business days of receipt of written notice from City , the City m ay suspend the Work until Design -Builder achieves compliance as determined by the City. The Work Order Package Deadline shall not be extended in the event of suspensions of the Work caused by Design - Builder's failure to comply with this section.
5.8 [INTENTIONALLY OMITTED]
5.9 General Duties and Responsibilities.
The Design –Builder shall do all of the following with respect to every Work Order Package awarded to it:
5.9.1 Obtain all permits and other Governmental A pprovals required by the Contract Documents in connection with a Work Order Package.
5.9.2 Undertake all actions required by and all actions necessary to maintain in full force and effect all Governmental Approvals in effect during performance of the Work, including performance of all environmental mitigati on measures and transportation related conditions of approval required by a Work Order Package and applicable Contract Documents.
5.9.3 Provide such assistance as is reasonably requested by City in dealing with any governmental agency. Such assistance may incl ude providing information and reports regarding the Project as well as executing declarations and attending meetings and hearings. In no event shall Design - Builder be required to provide legal services.
5.9.4 The Design -Builder shall comply with all Applicable Laws and the Contract Documents and shall give applicable notices pertaining thereto.
The Design-Builder shall obtain all Governmental Approvals, including preparing and filing all documents required to obtain the necessary Governmental Approvals. Design -Builder shall secure and pay for all permits, Governmental Approvals, governmental fees, licenses and inspections necessary for the proper execution and completion of a Work Order Package.
5.9.5 Provide and maintain field offices and parking for persons designated by City.
5.9.6 Design-Builder shall be responsible for construction means, methods, techniques, sequences and procedures for implementation of a Work Order Package . Design -Builder shall supervise and be responsible to City for acts and omissions of its employees, agents, officers, Subcontractors, and other persons performing portions of the Work, as though all persons were directly or indirectly employed by Design-Builder.
5.9.7 Mitigate delays to performance of the Work Order Package in all circumstances, to the extent reasonably possible.
5.9.8 Maintain the Site and the immediate surroundings in a clean and orderly condition, free of weeds, trash and graffiti.
5.9.9 Comply with each license agreement between the City and school districts applicable to the Site.
ARTICLE 6 – CITY'S DUTIES AND RESPONSIBILITIES
6.1 City’s Designation of Authorized Representative.
The City's Public Works Director or Engineer shall represent the City in all matters concerning this Agreement. The Engineer may designate in writing, from time to time, one or more representatives authorized to act on the City’s behalf with respect to the Project.
6.2 City’s Right to Make Changes and Award Separate Contracts.
City has the right to review, check, and inspect any part of the Work at any time. The City reserves the right to order changes in the Work, to perform Work or o perations related to the Work with the City’s own forces, and to award separate contracts in connection with the Work Order Package.
6.3 City’s Right to Stop the Work.
If the Design -Builder fails to correct defective Work as required herein, or fails to carry out the Work in accordance with the Contract Documents, the City may, in its sole discretion, elect to order the Design -Builder to stop the Work, or any portion thereof, until the Cit y reasonably determines that the cause for such order has been eliminated. The City’s right to stop the Work is in addition to the City’s right to terminate the applicable Work Order Package.
6.4 Suspension by City for Convenience.
The City may, without ca use, order the Design -Builder in writing to suspend, delay or interrupt the Work in whole or in part for such period of time as the City may determine. If such suspension, delay or interruption causes the Design-Builder to incur increased cost for the per formance of the Work, an adjustment to the Work Order Package Price shall be made for such costs as are directly attributable to such suspension, delay or interruption. If such
suspension, delay or interruption causes a delay to the critical path of the W ork, an adjustment to the Work Order Package Deadline shall be made.
6.5 City’s Right to Carry Out the Work.
If the Design -Builder defaults and neglects to carry out the Work in accordance with the Work Order Package and applicable Contract Documents, or fails to perform any of its obligations under the Contract Documents, the City may, in the event Design -Builder does not commence to cure such default within five (5) business days’ written notice to the Design-Builder, and without prejudice to any other reme dy the City may have, make good such deficiencies ; provided, however, City shall have no obligation to undertake the correction of such deficiencies. In such case, City shall deduct from payments then or thereafter due the Design-Builder the cost of corre cting such deficiencies. If the payments then or thereafter due the Design-Builder are not sufficient to cover such amount, the Design-Builder shall pay the difference to the City within thirty (30) D ays of written demand from the City.
ARTICLE 7 – MISCELLANEOUS PROVISIONS
7.1 Independent Design-Builder.
Design-Builder is, and shall be, acting at all times in t he performance of a Work Order Package as an independent Design -Builder. Design -Builder shall secure at its expense, and be responsible for any and all payment of all taxes, social security, state disability insurance compensation, unemployment compensation and other payroll deductions for Design -Builder and its officers, agents and employees, and all business licenses, if any, in connection with the services to be performed hereunder.
7.2 City Employees and Officials.
Design-Builder shall employ no City official nor any regular City employee in the Work performed pursuant to this Agreement. No officer or employee of City shall have any fina ncial interest in any Work Order Package in violation of applicable provisions of law.
7.3 Notices.
All notices, demands or other writings to be made, given or sent hereunder, or which may be so given o r made or sent by either City or Design - Builder to the other shall be deemed to have been given when in writing and personally delivered or if mailed on the third (3rd) day after being deposited in the United States mail, certified or registered, postage prepaid, and addressed to the respective Parties at the following addresses:
TO CITY: TO DESIGN-BUILDER:
City Clerk
City of Anaheim
200 S. Anaheim Blvd.
Anaheim, CA 92805
w/cc’s to:
Public Utilities General Manager
City of Anaheim
201 S. Anaheim Blvd., Suite 1101
Anaheim, CA 92805
FAX No. (714) 765-4138
In the case of a Work Order Package and in addition to the foregoing, a ny notice or special instructions shall be given either by personal delivery to Design - Builder's agent (as designated in Section 5.5.1 hereinabove) or to the Project Manager and Engineer as the situation shall warrant, or by enclosing the same in a sealed envelope, postage prepaid, and depositing the same in the United States Postal Service, to the address set forth in the Work Order Package and Proposal, and if none indicated therein, to the addresses set forth above.
7.4 Contractor’s License Notice:
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 260 00, Sacramento, California 95826.
7.5 Taxes and Reporting.
A. Project Construction – Design-Builder shall cooperate with the City in all matters relating to taxation and the collection of taxes, particularly with respect to the self-accrual of use tax. Prior to c ommencement of construction of any Work Order Package , Design -Builder shal l obtain a Department of Tax and Fee Administration sales and use tax sub -permit for the Site and allocate eligible
sales and use tax payments for individual contracts over $5,000,000 to the City.
Design-Builder shall certify in writing that the person(s) responsible for filing the tax return understands the process of reporting the tax to the City and will follow the guidelines set forth in the relevant sections of the Sales and Use Tax Regulations. The Design -Builder must, on its quarterly use tax return, identify the use tax applicable to the Site and use the appropriate Department of Tax and Fee Administration forms and schedules to ensure that the tax is allocated to the Site. In determining the amounts of use tax to be paid, the Design -Builder must follow the Sale and Use Tax Regulations. In the event it is later determined that certain eligible use tax amounts were not included on contractor’s use tax return(s), Design-Builder must agree to amend those returns and file them with the Department of Tax and Fee Administration in a manner that will ensure that the City receives such additional use tax from the Work.
B. Use Tax Direct Payment Process – Design-Builder shall follow the Use Tax Direct Payment Permit Process established in the Revenue and Taxation Code and use the sub -permit for all qualifying individual purchases in excess of $100,000 so that the local share of its sales/use tax payments is allocated to the City as the point of sale.
C. Fixtures, Materials and Equipment - It is understood and agreed that any fixtures, materials and equipment shipped f rom outside California, with a purchase total that exceeds $100,000 purchased directly by Design -Builder and shipped to Design -Builder’s Anaheim location, may also be eligible for direct allocation of sales/use tax to the City. Design -Builder shall complet e and submit to the City the Use Tax Direct Payment Permit. Upon request, Design -Builder shall provide to City on a semi -annual basis with a list of purchases exceeding the $100,000 threshold during the preceding six -month period, including the amount of the purchase and, if readily available, the name and contact information for the vendor upon reques t by the City. The City agrees to review the semi-annual list of purchases made by Design-Builder.
7.7 Design-Builder agrees to comply with the Communit y Workforce Agreement (“CWA”) and, if there is conflict between this Agreement and the CWA, Design -Builder agrees to comply with the terms of the CWA. Design - Builder shall require each of its subcontractors, of whatever tier, to be bound by the terms of the CWA.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers the day, month and year first above written.
DESIGN-BUILDER CITY OF ANAHEIM
By: ____________________________
By: ____________________________
Dukku Lee,
Public Utilities General Manager
ATTEST:
By:____________________________
Theresa Bass, City Clerk
APPROVED AS TO FORM:
ANAHEIM CITY ATTORNEY
By: ____________________________
Bryn Morley,
Deputy City Attorney
California Contractor’s
License No.:
Federal Tax I.D. No.:
State Tax I.D. No.:
Department of Industrial Relations
No.:
EXHIBIT A
General Scope of Work
[ATTACHED BEHIND THIS PAGE]
EXHIBIT A
General Scope of Work
Future Work Order Packages awarded under this Program will include, but not be limited to the design, upgrade, construction, alteration, and repair of new and existing Water systems and facilities throughout the City. Specific work may include, but not be limited to abandon, repair, relocate, replace, and install general pipeline infrastructure components; including pipelines, valves, manholes, pressure reducing stations, water meters and vaults. Work and services required of the Design-Builder will include design, construction, and commissioning of a project, in which the Design-Builder will provide all management, supervision, labor, services, temporary facility, equipment, tools, supplies, and the wherewithal needed to complete the scope of the Work Order Package.
The Design-Builder, whether a general contractor, construction company or joint venture, shall hold valid California Class “A” General Engineering Contractor and Class "C" licenses.
EXHIBIT B
PERFORMANCE BOND
[ATTACHED BEHIND THIS PAGE]
PREMIUM
FAITHFUL PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, the City of Anaheim, a municipal corporation of Orange County, California, has awarded to _________________________ License No. ___________, (hereinafter called "Principal"), a contract for design, procurement, site management, construction, testing, and commission of as -needed Water Systems and Facilities Projects as directed by the Public Utilities General Manager or designee. The selected Contractor shall furnish all tools, equipment, workshop facil ities, transportation, labor, parts and materials, and perform all work necessary. The work to be done shall consist of design, construction, and commissioning of a project, in which the Design -Builder will provide all management, supervision, labor, serv ices, temporary facility, equipment, tools, supplies, and the wherewithal needed to complete the scope of a Work Order Package. Account No. _______________.
WHEREAS, said Principal is required under the terms of said contract to furnish a bond for the faithful performance of said contract.
NOW, THEREFORE, we, as Principal, and
, as Surety, are held and firmly bound unto the City of Anaheim, a municipal corporation (hereinafter called "City"), in the penal sum of Two Hundred and Fifty Thousand Dollars a nd No/100 Cents ($ 250,000.00), lawful money of the United States of America, for the payment of which sum well and truly to be made, we bind ourselves, our heirs, successors, executors, and administrators, jointly and severally, firmly by these presents.
The condition of this obligation is such that, if the above bounded Principal, his or its heirs, executors, administrators, successors or assigns, shall in all things stand to and abide by and well and truly keep and perform all the undertakings, terms, co venants, conditions and provisions in the said contract and any alteration thereof made as therein provided, on his or 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 City, its officers, agents and employees, as therein stipulated, then this obligation shall become null and void; otherwise, it shall be and remain in full force and effect.
As a part of the obligation sec ured hereby and in addition to the face amount specified therefore, there shall be included costs and reasonable expenses and fees, including reasonable attorneys' fees, incurred by City in successfully enforcing such obligation, all to be taxed as costs a nd included in any judgment rendered.
The said Surety hereby 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 thereunder or to the specifications accompanying the s ame shall in any way affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alterations or additions to the terms of the contract or to the work or to the specifications.
IN WITNESS WHEREOF, three (3) identical counterparts of this instrument, each of which shall for all purpose be deemed an original thereof, have been duly executed by the Principal and Surety herein named, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative pursuant to authority of its governing body.
By:
PRINCIPAL
By:
PRESIDENT
By:
SECRETARY
SURETY
Attorney in Fact
CORPORATE ADDRESS OF SURETY
APPROVED AS TO FORM:
ROBERT FABELA,
CITY ATTORNEY
By:
Dated:
EXHIBIT C
PAYMENT BOND
[ATTACHED BEHIND THIS PAGE]
PREMIUM
LABOR AND MATERIAL BOND
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, the City of Anaheim, a municipal corporation of Oran ge County, California, has awarded to __________________________, License No. _______, (hereinafter called "Principal"), a contract for design, procurement, site management, construction, testing, and commission of as -needed Water Systems and Facilities P rojects as directed by the Public Utilities General Manager or designee. The selected Contractor shall furnish all tools, equipment, workshop facilities, transportation, labor, parts and materials, and perform all work necessary. The work to be done shal l consist of design, construction, and commissioning of a project, in which the Design -Builder will provide all management, supervision, labor, services, temporary facility, equipment, tools, supplies, and the wherewithal needed to complete the scope of a Work Order Package. Account No.___________________.
WHEREAS, under the terms of said agreement, Principal is required before entering upon the performance of the work, to file a good and sufficient payment bond with the City of Anaheim to secure the claims to which reference is made in Title l5 (commencing with Section 3082) of Part 4 of Division 3 of the Civil Code of the State of California.
NOW, THEREFORE, said Principal and
, as corporate Surety are held firmly bound unto the City of Anaheim and all contractors, subcontractors, laborers, materialmen and other persons employed in the performance of the aforesaid agreement and referred to in Part 6 of Division 4 of the Civil code of the State of California (commencing with Section 8000) in the sum of Two Hundred Fifty Thousand Dollars and No/100 Cents ($250,000.00) for materials furnished or labor thereon of any kind, or for amounts due under the Unemployment Insurance Act with respect to such work or labor, that said Surety will pay the same in an am ount not exceeding the amount hereinabove set forth, and also in case suit is brought upon this bond, will pay, in addition to the face amount thereof, costs and reasonable expenses and fees, including reasonable attorneys' fees, incurred by City in succes sfully enforcing such obligation, to be awarded and fixed by the court, and to be taxed as costs and to be included in the judgment therein rendered.
It is hereby expressly stipulated and agreed that this bond shall inure to the benefit of any and all pers ons, companies and corporations entitled to file claims under Part 6 of Division 4 of the Civil Code of the State of California (commencing with Section 8000), so as to give a right of action to them or their assigns in any suit brought upon this bond.
Should the condition of this bond be fully performed, then this obligation shall become null and void, otherwise it shall be and remain in full force and effect.
The Surety hereby stipulates and agrees that no change, extension of time, alteration or additio n to the terms of said agreement or the specifications accompanying the same shall in any manner affect its obligations on this bond, and it does hereby waive notice of any such change, extension, alteration or addition.
IN WITNESS WHEREOF, three (3) ident ical counterparts of this instrument, each of which shall for all purposes be deemed an original thereof, have been duly executed by the Principal and Surety herein named, the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative pursuant to authority of its governing body.
By:
PRINCIPAL
By:
PRESIDENT
By:
SECRETARY
SURETY
Attorney in Fact
CORPORATE ADDRESS OF SURETY
APPROVED AS TO FORM:
ROBERT FABELA,
CITY ATTORNEY
By:
Dated:
EXHIBIT D
Design-Builder’s Management and Key Personnel Chart
[ATTACHED BEHIND THIS PAGE]
EXHIBIT E
GENERAL CONDITIONS
[ATTACHED BEHIND THIS PAGE]