1. Design-Build Services Agreement (sample) — Anaheim City Council, October 8, 2024

City of Anaheim

DEPARTMENT OF PUBLIC WORKS

Page 1 of 1 ends

200 S. Anaheim Blvd.

Anaheim, CA 92805
TEL (714) 765-5176

www.anaheim.net
ADDENDUM NO. 1

TO THE REQUEST FOR PROPOSAL (RFP)

for the

DESIGN-BUILD: SOUTHWEST SUBSTATION UPGRADE

February 15, 2024
I. GENERAL
The following changes, additions, or deletions shall be made as indicated, and all other conditions shall remain the same.

II. REFERENCE DOCUMENTS

1. Appendix 6: Sample Design-Build Agreement
The 41-page PDF document for the Sample Design-Build Agreement is attached to this Addendum for reference.

2. Appendix 7: Sample Design-Build General Conditions
The 102-page PDF document for the Sample General Conditions for Design-Build Contract is attached to this Addendum for reference.

End of Addendum

cc Shelley He Adrian Flores Raul Garcia
Joseph Wei John Martin Samantha Bahena

The Design-Builder shall acknowledge receipt of all addenda by signing and enclosing each addendum form in its proposal submittal. Failure to do so may result in a rejection of his/her submittal.

Signature Print Name

Firm Name Date

Appendix 6: Sample Design-Build Agreement

Request for Proposals
Anaheim Public Utilities
Southwest Substation Upgrade

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CITY OF ANAHEIM

DESIGN-BUILD AGREEMENT
FOR
Southwest Substation Upgrade

DATED: Click or tap here to enter text.

CITY OF ANAHEIM

PUBLIC WORKS DEPARTMENT
200 S. ANAHEIM BLVD., SUITE 276
ANAHEIM, CA 92805

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DESIGN-BUILD AGREEMENT
This Design-Build Agreement ("Agreement") is made effective as of this Day day of Month, Year by and between the City of Anaheim (“City” or “Owner”) and Name, a Type of Entity ("Design-Builder") for the design, management, and construction of the Southwest Substation Upgrade Project ("Project"). In consideration of the mutual covenants and obligations contained herein, City and Design-Builder agree to the following terms and conditions.

RECITALS
WHEREAS, the City Charter and Chapter 10.06 of the Anaheim Municipal Code authorize the City to use design-build procurement for the design and construction of certain public works projects of the Public Works Department. Design-Builder shall perform, either directly or through subcontracts, the services set forth in this Agreement and the Contract Documents.

WHEREAS, City issued a Request for Proposals ("RFP") to select a design -builder to design, build and deliver to City certain improvements at the Project as described in, and in accordance with, the Scope of Services, complete with all appurtenances necessary to produce such facilities; WHEREAS City has selected Design-Builder for the Project based on its response to the RFP.

WHEREAS , Design-Builder warrants and represents that it is ready, willing and able to design and build the Project in strict accordance with the terms and conditions of the Agreement; and WHEREAS Design-Builder warrants and represents that is has the 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 I

CONTRACT DOCUMENTS

1.1 Definitions
The meanings of all capitalized terms used in the Contract Documents and not otherwise defined herein are contained in the General Conditions. If not defined in the General Conditions, they shall have the meanings assigned to them elsewhere in the Contract Documents. If not defined in the General Conditions or elsewhere, they shall have the meanings reasonably understood to apply to them by the context of the portion of the Contract Documents where such terms are used. City and Design-Builder are sometimes individually referred to as a “Party” and collectively as the “Parties.” Except as indicated otherwise, all references to City include its elected officials, officers, directors, employees, agents and vo lunteers. Except as indicated otherwise, all references to Design-Builder include its personnel, employees, agents and subcontractors.

1.2 Contract Documents
The "Contract Documents" are comprised of the following documents (not in order of precedence), all of which are either attached hereto as exhibits or are incorporated herein by this reference with the same force and effect as if the same were set forth at length herein:

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1.2.1 This Agreement, including all exhibits and attachments noted below, executed by City and Design-Builder:

Exhibit A – Site Legal Description
Exhibit B – Scope of Work and Index of Design Development Documents Exhibit C – Approved Deviations
Exhibit D – Design-Builder’s Key Personnel List
Exhibit E – Project Schedule
Exhibit F – Performance Bond
Exhibit G – Payment Bond
Exhibit H – Certification of Contractor and Subcontractor Department of Industrial Relations Registration
Exhibit I – Designation of Subcontractors
Exhibit J – Community Workforce Agreement (NOT APPLICABLE)

1.2.2 General Conditions of the Contract;

1.2.3 All written modifications, amendments, minor changes, and Change Orders to this Agreement issued in accordance with the General Conditions of Contract;

1.2.4 Design and Performance Criteria comprised of the Scope of Work;

1.2.5 2021 Standard Specifications for Public Works Construction (“Standard Specifications”) by the Southern California Chapter, American Public Works Association and the Southern California District, Associated General Contractors of California Joint Cooperative Committee, as modified and supplemented by the City;

1.2.6 Design Development Documents to be prepared by the Design-Builder;

1.2.7 Request for Proposals (“RFP” or “Requests for Proposals”) and any addenda (“RFP Addenda”) which are all on file at the Public Works Department;

1.2.8 Design-Builder’s Proposal (including the Best and Final Offer) and Approved Deviations identified in Exhibit C hereto, if any, contained in the Design-Builder’s Proposal and approved by City, which shall specifically identify any and all deviations from th e Design Development Documents and Request for Proposals; and

1.2.9 Final Construction Documents to be hereafter prepared by the Design-Builder that are approved by the City in writing in accordance with the terms of the Contract Documents.

1.2.10 Insurance documents comprised of certificate of insurance and endors ements approved by the City.

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1.3 Reference Documents [OPTIONAL]
The following Reference Documents are not considered Contract Documents and were provided to the Design-Builder for informational purposes only. Design -Builder may rely upon the technical data contained in such documents but not upon the non -technical data, interpretations, opinions or provisional statements contained therein:

1.3.1 Insert Description

1.3.2 Insert Description

1.3.3 Insert Description

1.4 Entire Agreement
This Agreement together with all other Contract Documents constitutes the entire agreement between the Parties and all other representations or statements theretofore made, oral or written, are merged herein. Both Parties have, with the assistance of their respective legal counsel, drafted the provisions contained in the Agreement. Therefore, no provision in the Agreement will be construed in favor of or against any party by virtue of the identity of its preparer. 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. If any provision of this Agreement shall be held invalid, 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 II

THE WORK

2.1 Scope of Work

2.1.1 Design-Builder shall provide, furnish, and perform all necessary planning, architectural, engineering, and all other design services of any type, procurement, permitting and support services, construction, landscaping, clean-up, and all other construction services of any type, provide and furnish all necessary supplies, materials, and equipment (except those to be provided by City, if any) and all necessary supervision, labor, and services required for the complete engineering, design, procurement, quality control/quality assurance, construction and all necessary installation, start-up and testing and commissioning required to complete the Work described in and reasonably inferable from the Contract Documents (hereinafter, the all-inclusive obligations of the Design-Builder set forth in this sentence shall be referred to as the "Work"). Except with regard to any material to be provided and/or installed by City, Design -Builder shall fully commission and turn over a complete operational, and fully functional Project to City. Without limiting the generality of this section, Design- Builder shall provide the following work and services:

2.1.2 Design-Builder shall prepare complete designs, engineering calculations, working drawings, shop drawings and generate detailed construction drawings and/or engineering analysis setting forth in detail the specifications and requirements for the purchasing and procurement of the services, materials, and equipment and for the construction of the complete, operational, and fully functional Project, and shall furnish the services of all necessary supervisors, engineers, designers, draftsmen, and other personnel necessary for preparation of those drawings and specifications required for the Work, including the pertinent information for natural gas, electrical, water supply, and any other utilities, as required.

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2.1.3 Design-Builder shall provide, install and complete as specified and pay for all labor, materials and equipment, tools, supplies, construction equipment and machinery, construction, start- up and testing, wet and dry utilities, communications of all type, tr ansportation, and other facilities and services (including any temporary materials, equipment, supplies and facilities) necessary for the proper execution and completion of the complete, operational, and fully functional Project, including the permanent in terconnection for electricity, natural gas, water supply, and any other utilities, and demonstration of fully satisfactory operation of all systems and equipment.

2.1.4 Design-Builder shall plan, coordinate, supervise and direct the entirety of the Work, and shall furnish the services of all supervisors, forepersons, skilled and unskilled labor, and all other personnel necessary to design and construct the complete, opera tional, and fully functional Project.

Design-Builder shall provide, manage and organize such personnel as necessary to complete the Work in accordance with all requirements of the Contract Documents.

2.1.5 Design-Builder shall obtain, at Design-Builder's expense, all governmental and private approvals, licenses, and permits required to complete the Work. Design -Builder shall design and construct a complete, operational and fully functional Project in full compliance with all applicable laws, codes, and standards (both public and private), including but not limited to, the standards and warranties included and/or expressed in the Contract Documents and manufacturer's recommendations pertaining to individual items of equipment or systems.

2.1.6 All subcontractors shall hold the appropriate California C-specialty, A -General engineering contractor license or engineering license, indicated on the Subcontractor List and declaration (Exhibit I) at the time of award of the Contract and shall maintain the licenses at all times during duration and performance of work.

2.2 Standard of Performance
In addition to and without limiting Design -Builder's other obligations under the Contract Documents, Design-Builder shall at all times in its performance of its obligations under the Contract Documents conform to the following general standards of performance:

2.2.1 Comply with the requirements of the Contract Documents;

2.2.2 Comply with Applicable Laws;

2.2.3 Conform to the standard of care applicable to those who provide design -build project services and construction of the type called for by this Agreement for projects of a scope and complexity that is comparable to the Project;

2.2.4 Furnish efficient business administration of the Work, utilizing sufficient senior level management and other qualified personnel to manage the Work; and

2.2.5 Apply its best and highest skill and attention to completing the Work in an expeditious and economical manner, consistent with the expressed best interests of City and within the limitations of the Contract Price and Contract Time.

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ARTICLE III

TIME FOR PERFORMANCE

3.1 Contract Time
Design-Builder agrees to commence the Work within five (5) days of Design -Builder’s receipt of a Notice to Proceed issued by City (“Date of Commencement”), unless the parties mutually agree otherwise in writing. If City's issuance of a Notice to Proceed is delayed due to Design-Builder's failure to return a fully-executed Agreement, insurance documents or bonds within fourteen (14) calendar days after the date of the award of the Contract letter from the City, one (1) calendar day will be deducted from the number of days to achieve Substantial Completion of the Work for every day of delay in City's receipt of such documents. This right is in addition to and does not affect City's right to demand forfeiture of Design-Builder's bid security, or any other rights or remedies available to City if Design-Builder persistently delays in providing the required documentation.

Design-Builder agrees to promptly commence the Work after the Notice to Proceed is issued by City, and to achieve Substantial Completion of the entire Work no later than Insert No. of Days calendar days after the Date of Commencement in the Notice to Proceed. Final Completion of the Work shall be achieved as expeditiously as reasonably practicable. Final Completion is the date when all Work is complete pursuant to the definition of Final Completion set forth in Article 1.1.24 of the General Conditions of Contract. All of the dates set forth in the Article (collectively “Contract Time”) shall be subject to adjustment in accordance with the General Conditions of Contract. By executing this Agreement, Design-Builder confirms that the Contract Time is a reasonable period for performing the Work.

3.2 Liquidated Damages

3.2.1 City and Design-Builder recognize that time is of the essence as to this Agreement and that City may suffer damages which are difficult to determine and accurately specify, such as lost grant funds, additional contract administration expenses, and loss of public use, if the Work is not completed within the Contract Time, including any extensions thereof allowed in accordance with the Contract Documents.

3.2.2 Design-Builder and City agree to liquidate damages with respect to Design -Builder's failure to achieve Substantial Completion of the Work within the Contract Time. The Parties intend for the liquidated damages set forth herein to apply to this Contract as set forth in Government Code § 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 breach, including any failure of the Work to conform to the requirements of the Contract Documents.

3.2.3 In the event that Design -Builder fails to achieve Substantial Completion of the Work within the Contract Time, Design-Builder agrees to pay City the following:
(a) $ Insert Amount per day for each calendar day that Substantial Completion is delayed for the first thirty (30) days of delay; and
(b) $ Insert Amount per day for each calendar day that Substantial Completion is delayed thereafter provided, however, that in an event Design -Builder’s liability to City for liquidated damages shall be limited to ten percent (10%) of the Contract Price.

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3.2.4 Design-Builder acknowledges and agrees that the foregoing liquidated damages have been set based on an evaluation by City of damages that it will incur in the event of the late completion of the Work. Design -Builder and City agree that because of the natu re of the Project it would be impractical or extremely difficult to fix the amount of actual damages incurred by City due to a delay in completion of the Work. Accordingly, City and Design-Builder have agreed to such liquidated damages to fix Design-Builder's costs and to avoid later disputes. It is understood and agreed by Design-Builder that any liquidated damages payable pursuant to this Agreement are not a penalty and represent a fair and reasonable estimate of compensation for losses to be incurred u nder the circumstances existing as of the effective date of this Agreement.

3.2.5 It is further mutually agreed that City shall have the right to deduct liquidated damages against progress payments or retainage. In the event the remaining unpaid Contract Price is insufficient to cover the full amount of liquidated damages, Design-Builder shall pay the difference to City.

3.2.6 Permitting or requiring Design -Builder to continue and finish the Work, or any part thereof, after the deadline for Substantial Completion shall not act as a waiver of City’s right to receive liquidated damages hereunder or any rights or remedies otherwise available to City.

3.3 Early Completion Bonus [OPTIONAL]

3.3.1 If the Work is completed to the point of Substantial Completion (as defined in the General Conditions) prior to Insert Date (“Bonus Date”) and Design-Builder has fully performed all of its obligations to be performed as of such time and fully complies with all terms and conditions of the Design-Build Agreement in effect at such time, then City shall pay Design -Builder at the time of final payment an early completion bonus of Insert Amount Dollars ($ ) for each calendar day that Substantial Completion is attained earlier than the Bonus Date. City and Design -Builder agree that the maximum aggregate amount that Design -Builder shall receive as the early completion bonus is Insert Amount Dollars ($ ).

3.3.2 If there is an Excusable Delay or Compensable Delay for which Design -Builder is entitled to a Contract Adjustment extending the Contract Time for Substantial Completion, the Bonus Date shall be deemed extended by the same number of days as such Contract Ad justment. In the case of an inexcusable delay, the Bonus Date shall not be extended.

3.3.3 City assumes no obligation to take special or extraordinary measures to expedite performance of any of its obligations under the Contract Documents in order to assist Design-Builder in achieving Substantial Completion by the Bonus Date and assumes no oblig ation to agree to any extensions of time to the Bonus Date, save and except to the extent that Design -Builder has established its right to a corresponding extension to the Contract Time for Substantial Completion as aforesaid. If and to the extent that an acceleration in performance by Design -Builder or any Subcontractor is undertaken for the purpose of enabling the Design -Builder to achieve Substantial Completion by the Bonus Date, such acceleration shall only be undertaken after Design -Builder has provided for City’s information, complete disclosure of those activities that will be accelerated and/or those activities that will be performed in parallel to support Design -Builder’s early completion, and such acceleration shall be performed entirely at Design-Builder’s own expense.

3.3.4 Such additional payment is subject to a judgment by City to the extent any sums may be lawfully retained under any provisions of the Contract Documents or at law. The obligation of City to pay such amount is subject to the condition that Design -Builder complete the Work to the point of Final Completion and that Design-Builder not be in breach or default of any of its obligations under the SAMPLE

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Contract Documents at the time of final payment. This provision does not alter the Contract Documents provisions on ownership and use of schedule float, and this provision shall not be used by Design-Builder to assert claims based upon use of schedule float or the City’s exercise of any rights or obligations under the Contract Documents.

3.3.5 No early completion bonus or any portion thereof shall be due or payable to Design - Builder in the event that the Contract is (1) rightfully terminated by City for cause on the grounds of an event of Design-Builder default; (2) terminated by City for convenience at a point prior to the overall Work (including approved Change Orders) being 75% completed, or (3) is wrongfully terminated by Design-Builder.

3.3.6 Design-Builder specifically and expressly waives and relinquishes any claims against City that City caused Design-Builder to fail to achieve early Substantial Completion thereby depriving Design-Builder of the opportunity to earn said bonus.

ARTICLE IV

CONTRACT PRICE

4.1 Contract Price

4.1.1 Total Compensation . City shall pay Design -Builder for Design -Builder's complete performance of the Work in accordance with the Contract Documents the Contract Price of Insert Amount Dollars ($ ).

4.1.2 Design Fee. The Contract Price includes a Design Fee of Insert Amount Dollars ($ ). The sole purpose of the Design Fee is to determine: (1) the compensation City is obligated to pay to Design-Builder under Article 15 of the General Conditions in the event the Agreement is terminated, for cause or convenience, prior to commencement of any physical construction at the Site; and (2) the amount that Design-Builder is entitled to pursuant to Article 10.3 of the General Conditions, to include in its Applications for Payment seeking progress payments for the design and construction portions of the Work.

4.1.3 The Contract Price is the total amount payable by City to Design -Builder for performance of the Work under the Contract Documents and is deemed to cover all costs arising out of or related to the performance of the Work, including, without limitation, the effects of natural elements upon the Work, unforeseen difficulties or obstructions affecting the performance of the Work (including, without limitation, unforeseen conditions at the Site that do not constitute Differing Site Conditions), and fluctuations i n market conditions and price escalations (whether occurring locally, nationally, or internationally) from any cause, including, without limitation, causes beyond the control or foreseeability of Design-Builder.

4.2 Allowance Items and Allowance Values [OPTIONAL]

4.2.1 Any and all Allowance Items, as well as their corresponding Allowance Values, are set forth below:

Allowance 1 Eng/Permit/Const – Unforeseen/Unknown - $ 300,000 Allowance 2 Security System - $ 300,000
Allowance 3 Equipment Manuf. Schedule - $ 300,000
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4.2.2 Design-Builder and City ha ve worked together to review the Allowance Items and Allowance Values based on design information then available to determine that the Allowance Values constitute reasonable estimates for the Allowance Items. Design-Builder and City will continue working closely together during the preparation of the design to develop Construction Documents consistent with the Allowance Values. Nothing herein is intended in any way to constitute a guarantee by Design- Builder that the Allowance Item in question can be performed for the Allowance Value.

4.2.3 No work shall be performed on any Allowance Item without Design -Builder first obtaining in writing advanced authorization to proceed from City. City agrees that if Design-Builder is not provided written authorization to proceed on an Allowance Item by the date set forth in the Project schedule, due to no fault of Design -Builder, Design-Builder may be entitled to an adjustment of the Contract Time and Contract Price.

4.2.4 The Allowance Value for an Allowance Item includes the direct cost of labor, materials, equipment, transportation, taxes and insurance associated with the applicable Allowance Item. All other costs, including design fees, Design -Builder's overall project management and general conditions costs, overhead and fee, are deemed to be included in the original Contract Price, and are not subject to adjustment, regardless of the actual amount of the Allowance Item.

4.2.5 Whenever the actual costs for an Allowance Item is more than or less than the stated Allowance Value, the Contract Price shall be adjusted accordingly by Change Order, in accordance with the General Conditions. The amount of the Change Order shall reflect the difference between actual costs incurred by Design-Builder for the particular Allowance Item and the Allowance Value.

ARTICLE V

DESIGN-BUILDER'S REPRESENTATIONS AND WARRANTIES
In order to induce City to enter into this Agreement, Design -Builder makes the following representations and warranties:

5.1 Design-Builder has and throughout the term of the Contract shall maintain all required authority, license status, professional ability, skills and capacity to perform Design -Builder’s obligations hereunder and shall perform them in accordance with the requ irements contained in the Contract Documents.

5.2 Design-Builder has visited the Site and has reasonably examined the nature and extent of the Work, Site, locality, impact(s) to adjoining private property, actual conditions, as -built conditions, and all local and federal, state and local laws and regulations that in any manner may affect cost, progress, performance or furnishing of Work or which relate to any aspect of the design and/or the means, methods, techniques, sequences or procedures of construction to be employed by Design-Builder and safety precautions and programs incident thereto.

5.3 Design-Builder has reasonably examined all reports of exploration and tests of subsurface conditions, as -built drawings, other drawings or reports, available for design and construction purposes, of physical conditions, or which may be apparent at the Site and accepts the criteria set forth in these documents and the General Conditions to the extent of the information contained in these documents upon which Design-Builder is entitled to rely. Design-Builder agrees that except for the information so identif ied, Design -Builder does not and shall not rely on any other information contained in these documents.

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5.4 After contract award, Design -Builder, will conduct or obtain any additional examinations, investigations, explorations, tests, reports and studies, including but not limited to geotechnical investigations, upon which the design will be based, that pertain to the surface and subsurface conditions, as-built conditions, underground facilities and all other physical conditions at or contiguous to the Site as Design -Builder considers necessary for the performance or furnishing of Work at the Contract Price, within the Contract Time and in accordance with the other terms and conditions of the Contract Documents.

5.5 All design and engineering services furnished by Design-Builder shall be performed by or under the supervision of persons licensed to practice architecture, engineering or surveying (as applicable) in the State of California, by personnel who are skilled, experienced and competent in their respective trades or professions, who are professionally qualified to perform the Work in accordance with the Contract Documents and who shall have professional responsibility for the accuracy and completeness of the design documents and construction documents prepared or checked by them.

5.6 Design-Builder has given City prompt written notice of all conflicts, errors, ambiguities, or discrepancies that it has discovered at any time in or among the Contract Documents and as -built drawings and actual conditions and the written resolution thereof through Addenda issued by City is acceptable to Design-Builder.

5.7 Design-Builder is duly organized, existing and in good standing under applicable state law, and is duly qualified to conduct business in the State of California.

5.8 Design-Builder has duly authorized the execution, delivery and performance of this Agreement, the other Contract Documents and the Work to be performed herein. The Contract Documents do not violate or create a default under any instrument, agreement, orde r or decree binding on Design - Builder.

5.9 Design-Builder represents and warrants that it is aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self -insurance in accordance with the provisi ons of that code, and Design -Builder agrees to comply with such provisions before commencing the performance of the work of this Contract and at all times during the term hereof, whether by provision of its own insurance or self - insurance.

5.10 Design-Builder shall comply with all requirements of any Quality Control/Quality Assurance Plan accepted by City.

5.11 At all times during the term hereof, including during the course of, and notwithstanding the existence of any dispute, Design-Builder shall perform as directed by City, in a diligent manner and without delay, shall abide by City’s decision or order, and shall comply with all applicable provisions of the Contract Documents.

5.12 Design-Builder confirms its intent to include in the Project the prequalified subcontractors, who were listed in the Design-Builder's Proposal. Design-Builder acknowledges its responsibility to provide City with a complete and updated list of subcontractor s as they become known on the Project, and that such listing shall be in accordance with the requirements of California Public Contract Code § 20133 et seq. Specifically, California Public Contract Code Section 20133(f) requires that all subcontractors not listed by Design Builder in its submission in response to the Request for Proposals be awarded in accordance with the design-build process set forth by City. The City process allows the selection of subcontractors based upon the best value to the Project and requires the Design-Builder SAMPLE

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do both of the following: (1) Provide public notice of the availability of work to be subcontracted in accordance with the publication requirements applicable to the competitive bidding process of the City; and (2) Provide a fixed date and time on which th e subcontracted work will be awarded in accordance with the procedure established pursuant to Public Contract Code Section 20133(f).

ARTICLE VI

BONDS AND INSURANCE

6.1 Insurance
Design-Builder shall procure the insurance coverages in accordance with Article 13 of the General Conditions of Contract.

6.2 Bonds and Other Performance Security

6.2.1 Design-Builder shall furnish a Performance Bond and a Payment Bond in the forms provided in Exhibits F and G, respectively, or on any other form provided by City or approved by City.

Design-Builder shall deliver to City, not later than fourteen (14) calen dar days after the date of the award of the Contract letter issued by City, evidence satisfactory to City that Design-Builder is capable of furnishing the Bonds. The Performance Bond shall be furnished as a guarantee of the faithful performance of the requirements of the Contract Documents (including the obligation to pay liquidated damages) in an amount equal to one -hundred percent (100%) of the Contract Price. The Payment Bond shall secure payment of all claims, demands, stop payment notices, mechanics liens, or charges of material suppliers, mechanics or laborers employed by Design -Builder or by any Subcontractor or any person, form, or entity eligible to file a stop payment notice with respect to the Work in an amount equal to one-hundred percent (100%) of the Contract Price. Design-Builder shall maintain the Payment Bond in full force and effect until (a) Design-Builder has obtained unconditional releases pursuant to Civil Code § 8138 from all claimants who filed preliminary notice of a claim against the bond, or (b) expiration of the statutory period for claims against the bond. Bonds may be obtained through Design- Builder’s usual source and the cost thereof shall be included in the Contract Price.

6.2.2 The bonds shall be executed by California admitted surety with an A.M. Best Company minimum rating of no less than “ A: IX”. If an A.M. Best rating is not available, the proposed surety must meet comparable standards of another rating service satisfactory to City. Bonds issued by a California admitted surety listed in the latest version of the U.S. Department of Treasury Circular 570 shall be deemed to be accepted unless specifically rejected by City. Bonds from a California admitted surety not listed in Treasury Circular 570 must be accompanied by all the documents enumerated in California Code of Civil Procedure § 995.660(a).

6.2.3 All such bonds shall be accompanied by a power of attorney for the surety company authorizing the person executing the bond to sign on behalf of the company. If the bonds are executed outside the State of California, all copies of the bonds must be counte rsigned by a California representative of the surety. The signature of the person executing the bond shall be acknowledged by a notary public as a signature of the person designated in the power of attorney.

6.2.4 If, during the continuance of the Contract, any of the sureties, in the opinion the City, are or become non -responsible or otherwise unacceptable to City, City may require other new or additional sureties which Design-Builder will furnish to the satisfaction of City within ten (10) days after written notice, and in default thereof, the Contract may be suspended and the work completed as provided in Article 15 of the General Conditions.

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6.2.5 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of obligations arising under the Contract, Design -Builder shall promptly furnish a copy of the bonds or shall permit a copy to be made.

6.2.6 In the event of increases in the Contract Price by change orders or otherwise aggregating to ten percent (10%) of the Contract Price or more, and by all such subsequent increases in the Contract Price thereafter, the Design -Builder shall submit to City evi dence of additional bond coverage for such increases in the Contract Price. Design -Builder shall be compensated for such additional bond coverage.

ARTICLE VII

MISCELLANEOUS PROVISIONS

7.1 Independent Contractor
Design-Builder is, and shall be, acting at all times in the performance of this Agreement as an independent contractor. This Agreement is not intended, and shall not be construed, to create the relationship of agent, servant employee, partnership, joint venture or association as between Design- Builder and City. 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 financial interest in this Agreement in violation of applicable provisions of law.

7.3 Notices
All notices, demands or other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly delivered: (a) upon personal delivery; (b) as of the third working day after mailing by United States mail, certified-return receipt requested, postage prepaid, addressed to the proper party at the appropriate address set forth below; (c) on the working day immediately after the date it is deposited with and accepted by an overnight courier service, addressed to the proper party at the appropriate address set forth below and marked for the next working day morning delivery; and (d) upon facsimile communication or other electronic communication (such as email or cooperative computer software) approved by City followed by a hard copy with receipt confirmed by telephone or by email. Notice sent by facsimile or other electronic communication after 4:00 p.m. Pacific Standard or Daylight Time (as applicable) shall be deemed received on the next working day following delivery. For purposes of this Agreement, a “working day” means any day Monday through Friday that is not a holiday recognized by the federal government or the State of California.

All notice correspondence between City and Design-Builder shall be sent to the individuals noted below (or as otherwise directed in writing) at the following addresses:

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TO CITY:

City Clerk
City of Anaheim
200 S. Anaheim Blvd.

Anaheim, CA 92805

w/copies to:

TO DESIGN-BUILDER:

Name: Click or tap here to enter text.

Title: Click or tap here to enter text.

Company: Click or tap here to enter text.

Address: Click or tap here to enter text.

ATTN: John Martin
Construction Contracts Administrator
Public Works Department
City of Anaheim
200 S. Anaheim Blvd., Suite 276
Anaheim, CA 92805

ATTN: Samantha Bahena
Construction Assistant Engineer
Public Works Department
City of Anaheim
200 S. Anaheim Blvd., Suite 276
Anaheim, CA 92805

ATTN: Shelley He
City Project Engineer
Anaheim Public Utilities
City of Anaheim
201 S. Anaheim Blvd., Suite 701
Anaheim, CA 92805

ATTN: Adrian Flores
Assistant Power Engineer
Anaheim Public Utilities
City of Anaheim
201 S. Anaheim Blvd., Suite 701
Anaheim, CA 92805

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 an act or omission pertaining to la tent defects must be filed within 10 years of the date of the alleged SAMPLE

DESIGN-BUILD AGREEMENT
Page A-13
violation. Any questions concerning a contractor may be referred to the Registrar, Contractors' State License Board, P.O. Box 26000, Sacramento, California 95826.

7.5 Taxes and Reporting

7.5.1 Project Construction - Design-Builder shall cooperate with City in all matters relating to taxation and the collection of taxes, particularly with respect to the self -accrual of use tax. Prior to commencement of construction of the Work, Design -Builder shall obtain a Board Equalization 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 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 Sites and use the appropriate Board of Equalization forms and schedules to ensure that the tax is allocated to the Sites. 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 Design- Builder's use tax return(s), Design -Builder must agree to amend those returns and file them with the Board of Equalization in a manner that will ensure that the City receives such additional use tax from the Project.

7.5.2 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.

7.5.3 Fixtures, Materials and Equipment - It is understood and agreed that any fixtures, materials and equipment shipped from 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 complete 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 request by the City. The City agrees to review the semi-annual list of purchases made by Design-Builder.

7.5.4 Permits - Copies of the permit(s) shall be delivered to the City Engineer. In completing the permit, Design-Builder shall use the address of the Site as its business address and may use any address for its mailing address. Copies of the permit(s) shall als o be delivered to the City Engineer.

The Design-Builder shall provide documentation to the City that the sub-permit(s) have been obtained and provide the sub-permit number(s) to City. The permit(s) must be obtained as soon as reasonably possible after Design-Builder receives a Notice to Proceed. Design-Builder shall not order any materials or equipment of $100,000 from vendors outside California until the permit(s) are obtained; and if Design-Builder do so, it shall be a material breach of this Agreement.

7.6 Department of Industrial Relations Registration
Strict compliance with all Department of Industrial Relations (“DIR”) registration requirements in accordance with Labor Code §§ 1725.5 and 1771.1 is a material obligation of Design-Builder and all of its Subcontractors (of any tier) under the Contract Doc uments. The foregoing includes, without limitation, compliance with DIR registration requirements at all times during performance of the Work by Design-Builder and all of its Subcontractors of any tier. Design-Builder shall execute Exhibit H which is a ce rtification that Design -Builder is in compliance with the DIR registration requirements. In addition, Design -Builder shall provide certification of registration and registration number to City SAMPLE

DESIGN-BUILD AGREEMENT
Page A-14
before a Subcontractor will be allowed to work on the Project. The failure of Design -Builder and its Subcontractors of any tier to be properly registered with DIR at all times during performance of the Work is a material breach of the Contract and grounds for termination for cause. An affirmative and ongoing obligation of Design -Builder under the Contract Documents is the verification that all Subcontractors of any tier are at all times during performance of the Work in full and strict compliance with the DIR registration requirements. Design-Builder shall not permit or allow any Subcontractor of any tier to perform any Work without Design -Builder’s verification that all Subcontractors are in full and strict compliance with the DIR registration requiremen ts. Any Subcontractor not properly registered with DIR shall be substituted in accordance with Labor Code § 1771.1. Design-Builder or its Subcontractors shall not be entitled to any additional costs or time arising from or in any way related to compliance with the DIR registration requirements.

7.7 Community Workforce Agreement (NOT APPLICABLE)
Design-Builder agrees to comply with the Community Workforce Agreement dated December 3, 2019 (“CWA”) if the Project includes covered “Project Work” as defined in the CWA. (Exhibit J) 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.

7.8 Equal Employment Opportunity
During performance of the Contract, Deign-Builder will not discriminate against any person or group of persons on account of race, color, religion, creed, national origin, ancestry, physical handicap, medical condition, age, marital status, sex or sexual orientation. Design-Builder confirms that it has an equal opportunity policy ensuring equal employment opportunity without regard to race, color, national origin, sex, age, religion or handicap; and that it maintains no employee facilities segregated on the basis of race, color, religion or national origin.

7.9 Provisions Required by Law
Each and every provision of law required to be included in these Contract Documents shall be deemed to be included in these Contract Documents. The Design-Builder shall comply with all requirements of applicable federal, state and local laws, rules and re gulations, including, but not limited to, the provisions of the California Labor Code and the California Public Contract Code where applicable to this Project.

WHEREFORE, this Design-Build Agreement is entered into as of the day and year first written above.

INSERT NAME OF DESIGN-BUILDER

By: _________________________________
Name: Click or tap here to enter text.

Title: Click or tap here to enter text.

Dated: Click or tap here to enter text.

SAMPLE

DESIGN-BUILD AGREEMENT
Page A-15
Need to Confirm:

California Contractor’s License No.: Click or tap here to enter text.

Federal Tax I.D. No.: Click or tap here to enter text.

State Tax I.D. No.: Click or tap here to enter text.

Anaheim Business License No.: Click or tap here to enter text.

Department of Industrial Relations No.: Click or tap here to enter text.

CITY OF ANAHEIM
By:

Dukku Lee
Public Utilities General Manager
Dated:

ATTEST:

By: ________________________________________________
City Clerk
APPROVED AS TO FORM:

ANAHEIM CITY ATTORNEY

By: ________________________________________________
NOTE: Signatures of corporate officials must be notarized. [END OF DOCUMENT]
SAMPLE

DESIGN-BUILD AGREEMENT
Exhibit A-1

EXHIBIT A

SITE LEGAL DESCRIPTION

SAMPLE

DESIGN-BUILD AGREEMENT
Exhibit B-1

EXHIBIT B

SCOPE OF WORK AND INDEX OF

DESIGN DEVELOPMENT DOCUMENTS

SAMPLE

DESIGN-BUILD AGREEMENT
Exhibit C-1

EXHIBIT C

APPROVED DEVIATIONS

SAMPLE

DESIGN-BUILD AGREEMENT
Exhibit D-1

EXHIBIT D

DESIGN-BUILDER'S KEY PERSONNEL LIST
SAMPLE

DESIGN-BUILD AGREEMENT
Exhibit E-1

EXHIBIT E

PROJECT SCHEDULE

SAMPLE

DESIGN-BUILD AGREEMENT
Exhibit F-1

EXHIBIT F
Performance Bond No. __________

PERFORMANCE BOND

WHEREAS, the City of Anaheim ("City") has awarded Insert Name of Contractor designated as the "Principal" or “Design-Builder” herein, a contract for the work described as follows:

Insert Description
WHEREAS, on or about Insert Date , the Principal entered into a Contract with the City for the design and construction of the work of improvement, which Contract and all Contract Documents set forth therein are incorporated herein and made a part hereof by this reference; and WHEREAS, Principal is required to furnish a bond guaranteeing the faithful performance of its obligations under the Contract Documents concurrently with delivery to City of the executed Contract.

NOW, THEREFORE, Principal and Insert Surety Name ("Surety"), a duly admitted surety in the State of California, are held and firmly bound to City for payment of the penal sum of $ Insert Amount ("the Bonded Sum"), in lawful money of the United States, for payment of which sum Principal and Surety jointly and severally bind themselves and their heirs, executors, administrators, successors and assigns.

THE CONDITION OF THIS OBLIGATION IS SUCH THAT if Principal shall promptly and faithfully perform all of its obligations under the Contract Documents, including any and all amendments and supplements thereto, then this obligation shall be null and void; otherwise it shall remain in full force and effect.

The following terms and conditions shall apply with respect to this Bond:

1. The Design -Builder and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to City for the complete and proper performance of the Contract, which is incorporated herein by reference.

2. If the Design-Builder completely and properly performs all of its obligations under the Contract, the Surety and the Design-Builder shall have no obligation under this Bond.

3. If there is no City Default, the Surety's obligation under this Bond shall arise after:

3.1 City has declared a Design -Builder Default under the Contract pursuant to the terms of the Contract; and

3.2 City has agreed to pay the Balance of the Contract Price to:

3.2.1 The Surety in accordance with the terms of this Bond and the Contract; or SAMPLE

DESIGN-BUILD AGREEMENT
Exhibit F-2

3.2.2 The contractor selected to perform the Contract in accordance with the terms of this Bond and the Contract.

4. When City has satisfied the conditions of Paragraph 3, the Surety shall promptly (within thirty (30) days) and at the Surety's expense elect to take one of the following actions (provided, that unless and until City has actually terminated Design -Builder for default, the Surety need only respond to City and commence a diligent investigation, not make an election):

4.1 Arrange for the Design -Builder, with consent of City, to perform and complete the Contract (but City may withhold consent, in its sole discretion, in which case the Surety must elect an option described in Paragraphs 4.2, 4.3 or 4.4, below); or

4.2 Undertake to perform and complete the Contract itself, through its agents or through independent contractors, but City may reject use of the contractor as an agent or independent contractor; or

4.3 Obtain bids from qualified contractors acceptable to City for a contract for performance and completion of the Contract (other than the original Design -Builder), and, upon determination by City of the lowest responsible bidder, arrange for a contract to be prepared for execution by City and the contractor selected with City's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Contract; and, if the Surety's obligations defined in Paragraph 6, below, exceed the Balance of the Contract Price, then the Surety shall pay to City the amount of such excess; or

4.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances, and, after investigation and consultation with City, determine in good faith its monetary obligation for which it may then be liable to City under Paragraph 6, below, for the performance and completion of the Contract and, as soon as practicable after the amount is determined, tender payment therefor to City with full explanation of the payment's calculation. If City accepts the Surety's tender under this Paragraph 4.4, City may still hold Surety liable for future damages then unknown or unliquidated resulting from the Design-Builder Default. If City disputes the amount of Surety's tender under this Paragraph 4 .4, City may exercise all remedies available to it at law to enforce the Surety's liability under Paragraph 6 below.

5. If the Surety does not proceed as provided in Paragraph 4, above, then the Surety shall be deemed to be in default on this Bond ten (10) calendar days after receipt of an additional written notice from City to the Surety demanding that the Surety perform its obligations under this Bond. At all times City shall be entitled to enforce any remedy available to City at law or under the Contract including, without limitation, and by way of example only, rights to perform work, protect work, mitigate damages, or coordinate work with other consultants or contractors.

6. The Surety's monetary obligation under this Bond is limited to the amount of this Bond, plus the Balance of the Contract Price paid hereunder. Subject to these limits, the Surety's obligations under this Bond are commensurate with the obligations of the De sign-Builder under the Contract. The Surety's obligations shall include, but are not limited to:

SAMPLE

DESIGN-BUILD AGREEMENT
Exhibit F-3

6.1 The responsibilities of the Design -Builder under the Contract for completion of the Contract and correction of defective work;

6.2 The responsibilities of the Design -Builder under the Contract to pay liquidated damages, and for damages for which no liquidated damages are specified in the Contract, actual damages caused by non -performance of the Contract, including but not limited to, all valid and proper back charges, offsets, payments, indemnities, or other damages;

6.3 Additional legal, design professional and delay costs resulting from the Design-Builder Default or resulting from the actions or failure to act of the Surety under Paragraph 4, above.

7. No right of action shall accrue on this Bond to any person or entity other than City or its heirs, executors, administrators, or successors.

8. The Surety hereby waives notice of any change, alteration or addition to the Contract or to related subcontracts, purchase orders and other obligations, including changes of time. The Surety consents to all terms of the Contract, including provisions on changes to the Contract.

No extension of time, change, alteration, modification, deletion, or addition to the Contract Documents, or of the work required thereunder, shall release or exonerate Surety on this Bond or in any way affect the obligations of Surety on this Bond.

9. Any proceeding, legal or equitable, under this Bond shall be instituted in any court of competent jurisdiction where a proceeding is pending between City and the Design -Builder regarding the Contract, or in the courts of the City of Anaheim, or in a court of competent jurisdiction in the location in which the work is located.

10. Notice to the Surety, City or the Design -Builder shall be mailed or delivered to the address shown on the signature page.

11. Any provision in this Bond conflicting with any statutory or regulatory requirement shall be deemed deleted here from and provisions conforming to such statutory requirement shall be deemed incorporated herein.

12. Definitions.

12.1 Balance of the Contract Price: The total amount payable by City to the Design -Builder pursuant to the terms of the Contract after all proper adjustments have been made under the Contract, for example, deductions for progress payments made, and increases/decreases for approved modifications to the Contract.

12.2 Contract: The agreement between City and the Design -Builder identified on the signature page, including all Contract Documents and changes thereto.

12.3 Design-Builder Default: Material failure of the Design-Builder, which has neither been remedied nor waived, to perform or otherwise to comply with the terms of the Contract.

12.4 City Default: Material failure of City, which has neither been remedied nor waived, to pay the Design-Builder progress payments due under the Contract or to perform other SAMPLE

DESIGN-BUILD AGREEMENT
Exhibit F-4

material terms of the Contract, if such failure is the cause of the asserted Design- Builder Default and is sufficient to justify Design-Builder termination of the Contract.

13. Qualification Regarding Extended Warranties. The Surety’s liability for extended warranties for Subcontractors and suppliers shall not apply to a breach of any such extended warranty under the Contract that occurs more than one year after the applicable wa rranty commencement date under the Contract.

IN WITNESS WHEREOF, three (3) identical counterparts of this instrument, each of which shall for all purposes be deemed an original hereof, have been duly executed by Principal and Surety of the date set forth below, the name of each corporate party being hereto affixed and these presents duly signed by its undersigned representative(s) pursuant to authority of its governing body. Principal and Surety have caused this Bond to be duly executed and delivered as of this day of , 20___.

SURETY:

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PRINCIPAL:

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Name

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Name

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Principal Place of Business Address
By:_________________________________
_____
Signature

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____________________________________
____
Attorney-In-Fact
By:________________________________
_____
Signature

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___________________________________
____
Printed Name

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___________________________________
____
Title

SAMPLE

DESIGN-BUILD AGREEMENT
Exhibit F-5

NOTARIAL CERTIFICATION OF ATTORNEY IN FACT, CORPORATION SEAL

AND SURETY SEAL MUST BE ATTACHED

ACKNOWLEDGMENT OF PERFORMANCE BOND

State of California
City of Click or tap here to enter text.)
On Click or tap here to enter text. before me, Click or tap here to enter text. personally appearedClick or tap here to enter text., who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they/ executed the same in his/her/their authorized capacity(ies) and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature ______________________________________ (Seal)

A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

SAMPLE

DESIGN-BUILD AGREEMENT
Exhibit F-6

ACKNOWLEDGMENT OF ATTORNEY IN FACT

PERFORMANCE BOND

State of California
City of Click or tap here to enter text.)
On Click or tap here to enter text. before me, Click or tap here to enter text. personally appeared Click or tap here to enter text., who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they/ executed the same in his/her/their authorized capacity(ies) and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature ______________________________________ (Seal)

SAMPLE

DESIGN-BUILD AGREEMENT
Exhibit G-1

EXHIBIT G
Payment Bond No. ________

PAYMENT BOND
(Labor and Material Bond)

WHEREAS, the City of Anaheim ("City") has awarded Insert Name of Contractor designated as the "Principal" or “Design-Builder” herein, a contract for the work described as follows:

Insert Description
WHEREAS, on or about Insert Date , the Principal entered into a Contract with the City for the design and construction of the work of improvement, which Contract and all Contract Documents set forth therein are incorporated herein and made a part hereof by this reference; and WHEREAS, by terms of the Contract, as well as California Civil Code § 9550 et seq. and Public Contract Code § 22165(a), Principal is required to furnish a bond guaranteeing payment of claims.

NOW, THEREFORE, Principal and Insert Surety Name ("Surety"), a duly admitted surety in the State of California, are held and firmly bound to the City for payment of the penal sum of $Insert Amount ("the Bonded Sum"), in lawful money of the United States, for payment of which sum Principal and Surety jointly and severally bind the mselves and their heirs, executors, administrators, successors and assigns.

THE CONDITION OF THIS OBLIGATION IS SUCH THAT if Principal shall fail to pay any of the persons named in California Civil Code § 9100 for all labor, materials, equipment or services used or reasonably required for use in performance of the Work of the Project, then Surety shall pay for the same in an amount not-to-exceed the Bonded Sum, otherwise this obligation shall be null and void.

The following terms and conditions shall apply with respect to this Bond:

1. The Design -Builder and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to City and to Claimants, to pay for labor, materials and equipment furnished for use in the performance of the Contra ct, which is incorporated herein by reference.

2. With respect to City, this obligation shall be null and void if the Design-Builder:

2.1 Promptly makes payment, directly or indirectly, for all sums due Claimants, and

2.2 Defends, indemnifies and holds harmless City from all claims, demands, liens or suits by any person or entity who furnished labor, materials or equipment for use in the performance of the Contract, provided City has promptly notified the Design -Builder and the Surety (at the address described in Paragraph 10) of any claims, demands, liens or suits and tendered defense of such claims, demands, liens or suits to the Design-Builder and the Surety, and provided there is no City Default.

SAMPLE

DESIGN-BUILD AGREEMENT
Exhibit G-2

3. With respect to Claimants, this obligation shall be null and void if the Design-Builder promptly makes payment, directly or indirectly through its subcontractors, for all sums due Claimants.

However, if Design -Builder or its subcontractors fail to pay any of the persons named in California Civil Code § 3181, or amounts due under the Unemployment Insurance Code with respect to work or labor performed under the Contract, or for any amounts required to be deducted, withheld, and paid over to the Employment De velopment Department from the wages of employees of Design -Builder or subcontractors pursuant to the Unemployment Insurance Code § 13020, with respect to such work and labor, then Surety will pay for the same, and also, in case suit is brought upon this bond, a reasonable attorney's fee, to be fixed by the Court.

4. The Surety shall have no obligation to Claimants under this Bond unless the Claimant has satisfied all applicable notice requirements under Civil Code § 9560.

5. The Surety's total obligation shall not exceed the amount of this Bond, and the amount of this Bond shall be credited for any payments made in good faith by the Surety under this Bond.

6. Amounts due the Design-Builder under the Contract shall be applied first to satisfy claims, if any, under any Construction Performance Bond and second, to satisfy obligations of the Design-Builder and the Surety under this Bond.

7. City shall not be liable for payment of any costs, expenses, or attorney's fees of any Claimant under this bond, and shall have under this Bond no obligations to make payments to, give notices on behalf of, or otherwise have obligations to Claimants under this Bond.

8. The Surety hereby waives notice of any change, including changes of time, to the Contract or to related subcontracts, purchase orders and other obligations.

9. Suit against Surety on this Payment Bond may be brought by any Claimant, or its assigns, at any time after the Claimant has furnished the last of the labor or materials, or both, but, pursuant to California Civil Code § 9558, must be commenced before the e xpiration of six months after the period in which stop payment notices may be filed as provided in Civil Code § 9356.

10. Notice to the Surety, City or the Design -Builder shall be mailed or delivered to the address shown on the signature page. Actual receipt of notice by Surety, City or the Principal, however accomplished, shall be sufficient compliance as of the date received at the address shown on the signature page.

11. This Bond has been furnished to comply with Civil Code § 9000 et seq. Any provision in this Bond conflicting with said statutory requirements shall be deemed deleted and provisions conforming to such statutory or other legal requirements shall be deemed incorporated herein.

The intent is that this Bond shall be construed as a statutory bond and not as a common law bond.

12. Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Design-Builder shall promptly furnish a copy of this Bond or shall permit a copy to be made.

13. DEFINITIONS
SAMPLE

DESIGN-BUILD AGREEMENT
Exhibit G-3

13.1 Claimant: An individual or entity having a direct contract with the Design-Builder or with a subcontractor of the Design-Builder to furnish labor, materials or equipment for use in the performance of the Contract, as further defined in California Civil Code § 9100.

The intent of this Bond shall be to include without limitation in the terms "labor, materials or equipment" that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental equipment used in the Contract, architectural and engineering services required for performance of the work of the Design-Builder and the Design-Builder's subcontractors, and all other items for which a stop payment notice might be asserted.

13.2 Contract: The agreement between City and the Design -Builder identified on the signature page, including all Contract Documents and changes thereto.

13.3 City Default: Material failure of City, which has neither been remedied nor waived, to pay the Design-Builder as required by the Contract, provided that failure is the cause of the failure of Design -Builder to pay the Claimants and is sufficient to justify termination of the Contract.

SURETY:

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PRINCIPAL:

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Name

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Name

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Principal Place of Business Address
SAMPLE

DESIGN-BUILD AGREEMENT
Exhibit G-4

By:_________________________________
____
Signature

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____________________________________
___
Attorney-In-Fact
By:________________________________
____
Signature

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___________________________________
___
Printed Name

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___________________________________
___
Title

SAMPLE

DESIGN-BUILD AGREEMENT
Exhibit G-5

NOTARIAL CERTIFICATION OF ATTORNEY IN FACT, CORPORATION SEAL

AND SURETY SEAL MUST BE ATTACHED

ACKNOWLEDGMENT OF PAYMENT BOND

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature ______________________________________ (Seal)

SAMPLE

DESIGN-BUILD AGREEMENT
Exhibit G-6

ACKNOWLEDGMENT OF ATTORNEY IN FACT

PAYMENT BOND

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature ______________________________________ (Seal)

SAMPLE

DESIGN-BUILD AGREEMENT
Exhibit H-1

EXHIBIT H

CERTIFICATION OF CONTRACTOR AND SUBCONTRACTOR

DEPARTMENT OF INDUSTRIAL RELATIONS REGISTRATION

Pursuant to Labor Code Section 1725.5, a contractor or subcontractor must be registered with the Department of Industrial Relations in order to bid on, be listed in a bid proposal, or engage in the performance of any defined public work contract.

I, Name, Title certify that Contractor Name is currently registered with the Department of Industrial Relations (“DIR”):

Contractor’s DR Registration Number: Click or tap here to enter text.

Expiration Date: Click or tap here to enter text.

Contractor further acknowledges that:

Contractor shall maintain DIR registered status for the duration of the Project without lapse in registration.

Contractor shall note in its invitation to bid the DIR’s registration requirement for all subcontractors and their subcontractors.

Contractor shall ensure that all subcontractors are registered at the time of bid opening and maintain registered status for the duration of the Project.

Contractor is to furnish DIR Registration Number for all subcontractors on the project either at the time of bid or within 24 hours of the bid opening.

Contractor shall substitute any subcontractor with a DIR registered subcontractor if listed subcontractor is unable to perform the Work.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Signature

Date
SAMPLE

DESIGN-BUILD AGREEMENT
Exhibit H-2

EXHIBIT I

DESIGNATION OF SUBCONTRACTORS
Design-Builder shall set forth below:

1. The name and location of the place of business of each subcontractor who will perform work or labor or render service to the Design -Builder in or about the construction of the work of improvement, or a subcontractor licensed in the State of California who, under subcontract to the Design- Builder, specially fabricates and installs a portion of the work of improvement according to detailed drawings contained in the plans and specification s, in an amount in excess of one-half of one percent (0.5%) of the Design-Builder 's total bid.

2. The portion and estimated dollar amount of the work which will be done by each subcontractor.

The Design -Builder shall list only one subcontractor for each portion as is defined by the Design-Builder in his/her bid.

3. If the Design-Builder fails to specify a subcontractor, or if the Design -Builder specifies more than one subcontractor for the same portion for work to be performed under the Contract in excess of one -half of one percent of the Design -Builder's total bid, then he/she agrees that he/she is fully qualified to perform that portion himself/herself, and that he/she shall perform that portion himself/herself. If after award of Contract, the Design -Builder subcontracts any such portion of the Work, the Design-Builder shall be subject to the statutory penalties.

4. All subcontractors (of any tier) performing any portion of the work or labor or rendering services to the Design -Builder must comply with Labor Code Sections 1771.1 and 1725.5, must be properly registered with the California Department of Industrial Relati ons, and must be qualified to perform public works pursuant to Labor Code Section 1725.5 throughout the duration of the Project.

Please type or legibly print (attach additional sheets as necessary).

SAMPLE

DESIGN-BUILD AGREEMENT
Exhibit J-2

Subcontractor Information for City and DIR

Dated: Click or tap here to enter text.

1. Subcontractor
Name