Pag
e 1
DESIGN-BUILD AGREEMENT
FOR
LAKE ONE POWER PLANT EMISSIONS RETROFIT PROJECT
be
tween
Th
e City of Burbank
as City
and
ARB,
Inc.
a California corporation
as Design-Builder
Dated: June 1, 2022
ATTACHMENT 2
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DESIGN-BUILD AGREEMENT
TABLE OF CONTENTS
ARTICLE 1 – CONTRACT DOCUMENTS AND INTERPRETATION ............................ 6
1.1 Definitions. ........................................................................................................... 6
1.2 Contract Documents. ........................................................................................... 6
1.3 Order of Precedence............................................................................................ 7
1.4 Entire Agreement. ................................................................................................ 7 ARTICLE 2 – TIME FOR PERFORMANCE ................................................................... 7
2.1 Contract Time. ..................................................................................................... 7
2.2 Liquidated Damages for Design-Builder Delays. ................................................. 8
2.3 Delays and Extensions of Time. .......................................................................... 9 ARTICLE 3 – CONTRACT PRICE ................................................................................. 9
3.1 Lump Sum Price. ................................................................................................. 9 ARTICLE 4 – PAYMENT ............................................................................................... 9
4.1 Cost and Man-Loaded Schedule of Values. ......................................................... 9
4.2 Payment Benchmarks. ....................................................................................... 10
4.3 Payment Benchmarks (Equipment). .................................................................. 10
4.4 Procedures for Payment. ................................................................................... 11 ARTICLE 5 – DESIGN-BUILDER'S DUTIES AND RESPONSIBILITIES .................... 11
5.1 General Scope of Services. ............................................................................... 11
5.2 Before Starting Work.......................................................................................... 11
5.3 Initial Conference. .............................................................................................. 12
5.4 Evaluation of Preliminary Submittals. ................................................................ 12
5.5 Key Personnel. .................................................................................................. 12
5.6 Design Phase Services. ..................................................................................... 13
5.7 Construction Phase Services. ............................................................................ 14
5.8 Field Services during Commissioning. ............................................................... 16
5.9 General Duties and Responsibilities. ................................................................. 16 ARTICLE 6 – CITY'S DUTIES AND RESPONSIBILITIES ........................................... 17
6.1 City’s Designation of Authorized Representative. .............................................. 17
6.2 City’s Right to Make Changes and Award Separate Contracts. ......................... 17
6.3 City’s Right to Stop the Work. ............................................................................ 17
6.4 Suspension by City for Convenience. ................................................................ 17
6.5 City’s Right to Carry Out the Work. .................................................................... 17 ARTICLE 7 – MISCELLANEOUS PROVISIONS ......................................................... 18
7.1 Independent Contractor. .................................................................................... 18
7.2 City Employees and Officials. ............................................................................ 18
7.3 Contractor’s License Notice. .............................................................................. 18
7.4 Notices. .............................................................................................................. 19 EXHIBIT A - SITE DESCRIPTION ............................................................................... 21 EXHIBIT B - PERFORMANCE BOND ......................................................................... 23 EXHIBIT C – PAYMENT (MATERIAL & LABOR) BOND ............................................ 26 EXHIBIT D - MAINTENANCE BOND ........................................................................... 28 EXHIBIT E - CHANGE AND EXTRA WORK ORDER ................................................. 30 EXHIBIT F - DESIGN-BUILDER’S MANAGEMENT & KEY PERSONNEL ................. 33 EXHIBIT G - SUBCONTRACTOR LIST & DECLARATION ........................................ 34 EXHIBIT H - SUBCONTRACTOR/MANUFACTURER WARRANTY .......................... 35 ATTACHMENT 2
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EXHIBIT I - FIELD CONTRACTOR ORIENTATION .................................................... 37 EXHIBIT J - GENERAL CONDITIONS ........................................................................ 49 EXHIBIT K - CITY OF BURBANK COVID-19 MANDATE FOR CONTRACTORS……9 7
1. GENERAL PROVISIONS .................................................................................. 49
1.1 DEFINITIONS. ................................................................................................... 49
1.2 CORRELATION AND INTENT OF CONTRACT DOCUMENTS. ....................... 53
1.3 OWNERSHIP AND USE OF DOCUMENTS. ..................................................... 54
2. CITY...………………………………………………………………………………….. 55
2.1 SUPERVISION AND INSPECTION BY CITY .................................................... 55
3. DESIGN-BUILDER ............................................................................................ 56
3.1 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS ............... 56
3.2 LABOR AND MATERIALS ................................................................................. 56
3.3 SUBSTITUTIONS .............................................................................................. 58
3.4 WARRANTY ...................................................................................................... 58
3.5 TAXES ............................................................................................................... 59
3.6 APPLICABLE LAW ............................................................................................ 59
3.7 PERMITS, LICENSES AND INSPECTIONS ..................................................... 59
3.8 SCHEDULE ....................................................................................................... 59
3.9 RECORD DOCUMENTS AND AS-BUILTS ....................................................... 60
3.10 INTELLECTUAL PROPERTY AND PATENT RIGHTS ...................................... 61
3.11 SUBMITTALS AND SHOP DRAWINGS ............................................................ 62
3.12 USE OF SITE AND OTHER AREAS ................................................................. 63
3.13 INDEMNITY ....................................................................................................... 63
4. ADMINISTRATION OF THE CONTRACT ......................................................... 64
4.1 ROLE OF CITY’S ENGINEER ........................................................................... 64
4.2 CLAIMS AND DISPUTE RESOLUTION ............................................................ 64
5. SUBCONTRACTORS, SUPPLIERS AND CONSULTANTS ............................ 68
5.1 SUBCONTRACTING ACT ................................................................................. 68
5.2 OBJECTION ...................................................................................................... 69
5.3 RESPONSIBILITY ............................................................................................. 69
5.4 COORDINATION ............................................................................................... 69
5.5 SUBCONTRACT AGREEMENTS ..................................................................... 69
5.6 ASSIGNMENT ................................................................................................... 70
6. PAYMENTS TO SUBCONTRACTORS AND STOP NOTICE CLAIMS ............ 70
6.1 PROMPT PAYMENT ......................................................................................... 70
6.2 STOP NOTICE CLAIMS .................................................................................... 70
7. CHANGES IN THE WORK ................................................................................ 71
7.1 CHANGES ......................................................................................................... 71
7.2 AUTHORITY TO ORDER CHANGES................................................................ 71
7.3 OWNER INITIATED CHANGE NOTICE ............................................................ 71
7.4 DESIGN-BUILDER INITIATED CHANGE ORDER REQUEST .......................... 72
7.5 CHANGE ORDER ............................................................................................. 72
7.6 EXCLUDED COSTS .......................................................................................... 74
7.7 ALLOWABLE COST BASIS ............................................................................... 75
7.8 AUDIT RIGHTS ................................................................................................. 75
7.9 DEDUCTION FROM WORK .............................................................................. 75
7.10 DESIGN-BUILDER AND SURETIES BOUND ................................................... 76
7.11 TIME AND MATERIAL CHANGE ORDER (TMCO) ........................................... 76 ATTACHMENT 2
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8. TIME……………………………………………………………………………………77
8.1 EXTRAORDINARY MEASURES ....................................................................... 77
8.2 TIME EXTENSIONS .......................................................................................... 78
9. PAYMENTS AND COMPLETION ..................................................................... 79
9.1 PAYMENTS TO DESIGN-BUILDER .................................................................. 79
9.2 APPLICATION FOR PAYMENT ........................................................................ 79
9.3 PAYMENT ......................................................................................................... 80
9.4 SUBSTANTIAL COMPLETION .......................................................................... 81
9.5 FINAL COMPLETION AND FINAL PAYMENT .................................................. 81
9.6 OWNER TO WITHHOLD PAYMENT ................................................................. 82
9.7 DISPUTED ITEMS ............................................................................................. 83
9.8 WAIVER OF CLAIMS ........................................................................................ 83
10. PROTECTION OF PERSONS AND PROPERTY ............................................. 83
10.1 SAFETY PRACTICES ....................................................................................... 83
11. BONDS AND INSURANCE ............................................................................... 84
11.1 BONDS .............................................................................................................. 84
11.2 INSURANCE – GENERAL REQUIREMENTS ................................................... 85
11.3 WORKERS COMPENSATION/EMPLOYER’S LIABILITY INSURANCE ........... 86
11.4 COMMERCIAL GENERAL/PUBLIC LIABILITY INSURANCE ........................... 87
11.5 COMPREHENSIVE AUTOMOBILE LIABILITY INSURANCE COVERAGE ...... 87
11.6 PROFESSIONAL LIABILITY INSURANCE ........................................................ 88
11.7 CONTRACTORS’ POLLUTION LIABILITY INSURANCE .................................. 88
11.8 BUILDER’S RISK/COURSE OF CONSTRUCTION INSURANCE ..................... 88
11.9 RESPONSIBILITY FOR DAMAGE AND THEFT ............................................... 89
12. QUALITY AND CORRECTION OF WORK ....................................................... 89
12.1 QUALITY OF WORK AND MATERIAL .............................................................. 89
12.2 UNCOVERING OF WORK ................................................................................ 90
12.3 CORRECTION OF WORK ................................................................................. 90
13. MISCELLANEOUS PROVISIONS .................................................................... 91
13.1 GOVERNING LAW ............................................................................................ 91
13.2 SUCCESSORS AND ASSIGNS ........................................................................ 91
13.3 NO PERSONAL LIABILITY ................................................................................ 91
13.4 INTERFERENCE ............................................................................................... 91
13.5 CLEAN PREMISES ........................................................................................... 91
13.6 TELEPHONE ..................................................................................................... 92
13.7 SANITARY FACILITIES ..................................................................................... 92
13.8 ADVERTISING .................................................................................................. 92
13.9 COVID-19 VACCINATION ................................................................................. 92
14. TERMINATION OR SUSPENSION OF THE CONTRACT ................................ 92
14.1 TERMINATION FOR DEFAULT ........................................................................ 92
14.2 TERMINATION FOR CONVENIENCE .............................................................. 93
14.3 SUSPENSION BY OWNER FOR CONVENIENCE ........................................... 94
15. LABOR CODE REQUIREMENTS AND PREVAILING WAGE RATES ............ 94
ATTACHMENT 2
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Design/Build Agreement
THIS DESIGN/BUILD AGREEMENT (“Agreement”) is made and entered into this ____ day of _________, 2022, by and between the CITY OF BURBANK, a municipal corporation ("City"), and ARB, Inc., a California corporation ("Design-Builder"). Hereinafter, the City and the Design-Builder may be referred to collectively as the “Parties.”
R E C I T A L S:
City issued a Request for Proposals to obtain services for the design, management and construction for the Lake One Power Plant Emissions Retrofit Project (the “Project”) on February 15, 2022, (“RFP Documents”).
Design-Builder submitted Proposal Documents to City in response to the RFP on March 22, 2022, with revised Proposal Documents submitted on May 4, 2022 ("Proposal Documents").
Based upon the evaluation of the Proposal Documents and information obtained through the competitive selection procedure set forth in the RFP, Design-Builder has been selected by the City, by resolution of the Burbank City Council on ___________, 2022 , to perform, either directly, through Design- Build Team Members identified below or pursuant to subcontracts, the services set forth in this Agreement and the Contract Documents. The Design-Build Team Members are:
-- ARB, Inc.; and
-- Peerless Manufacturing/CECO Environmental;
NOW, THEREFORE, in consideration of the covenants hereinafter set f orth, the City and Design- Builder mutually agree as follows:
ATTACHMENT 2
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ARTICLE 1 – CONTRACT DOCUMENTS AND INTERPRETATION
1.1 Definitions.
The meaning of all terms used in the Contract Documents and not otherwise defined herein are as defined in the General Conditions.
1.2 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. Site Description attached hereto as Exhibit A;
b. The Performance Bond attached hereto as Exhibit B;
c. The Payment Bond attached hereto as Exhibit C;
d. Maintenance Bond attached hereto as Exhibit D;
e. Change and Extra Work Order hereto as Exhibit E;
f. Design-Builder’s Management and Key Personnel Chart attached hereto as Exhibit F;
g. Subcontractor List and Declaration Form attached hereto as Exhibit G; h. Subcontractor / Manufacturer Warranty attached hereto as Exhibit H; i. Burbank Water and Power Field Contractor Orientation attached hereto as Exhibit I
2. The General Conditions Exhibit J;
3. General Requirements and Technical Specifications for RFP 1505 prepared by City
4. Construction Documents prepared by Design- Builder and approved by the City as provided herein (index to be attached by Amendment); and
5. The Design-Builder’s Proposal Documents submitted to City on March 15, 2022 and revised Proposal Documents submitted to City on May 4, 2022;
6. City’s Purchase Order
ATTACHMENT 2
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1.3 Order of Precedence.
Each of the Contract Documents is an essential part of the Contract. The Contract Documents are intended to be complimentary and to describe and provide for a complete functional and finished system. In the event of conflicts or discrepancies among the Contract Documents, the order of precedence shall be as set forth below:
1. Permits;
2. Change Orders and Modifications;
3. Agreement except Exhibits listed below;
4. Standard Specifications for Public Works Construction “Greenbook”, as applicable
5. Construction Documents prepared by Design- Builder, with Design-Builder Specifications contained therein having preced ence over plans, and excluding any deviations from the requirements of the other Contract Documents which have not been approved in writing by City;
6. RFP Documents including all addenda (in case of an inconsistency among the RFP Documents, the better quality or greater quantity shall be provided in accordance with the Engineer’s interpretation);
7. Design-Builder’s Proposal Documents, to the extent they are consistent with the requirements of the other Contract Documents; and
8. City Purchase Order
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, 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 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.
ARTICLE 2 – TIME FOR PERFORMANCE
2.1 Contract Time.
Time is of the essence. By executing this Agreement, Design-Builder confirms that the Contract Time is a reasonable period for performing the Work. Design-Builder agrees to commence Services within five (5) calendar Days after a written Notice to Proceed is issued by the City, to perform the Work in a diligent and workmanlike manner, to complete the Work in accordance with the time and milestone dates set forth in the Project Schedule, as hereinafter defined, to achieve Substantial Completion of the Work by April 1, 2023 and to achieve Final Completion of the Work within the time fixed by the City in its Certificate of Substantial Completion (the “Contract Time”). The Contract Time may be extended only with the written permission of the City.
In addition to achieving Substantial Completion of the work by April 1, 2023, Design-Builder shall complete construction and commissioning of the Work within six (6) weeks from the date that construction begins, unless otherwise agreed upon by the City. Construction of the Work shall not ATTACHMENT 2
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commence until the dual function catalyst has been manufactured and tested per the requirements of the Technical Specifications.
2.2 Liquidated Damages for Design- Builder Delays.
2.2.1 Design-Builder and the City have agreed to liquidated damages with respect to Design- Builder’s failure to achieve Substantial Completion of the Work within the Contract Time or failure to complete construction and commissioning within six (6) weeks from the date construction begins. 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 or failure to complete construction and commissioning in a timely manner 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.
2.2.2 In the event that Design-Builder fails to achieve Substantial Completion of the Work within the Contract Time or fails to complete construction and commissioning of the Work within six (6) weeks from the date that construction begins, Design-Builder agrees to pay City the following amounts:
a) $5,000 per day for each calendar Day of delay for the first seven (7) days; b) $10,000 per day for each calendar Day of delay for days eight (8) through fourteen (14); c) $15,000 per day for each calendar Day of delay for days fifteen (15) through twenty- one (21);
d) $20,000 per day for each calendar Day of delay for days twenty-two (22) through twenty-eight (28);
e) $25,000 per day for each calendar Day of delay thereafter provided, however, that in any event Design-Builder’s liability to City for Liquidated Damages shall be limited to twenty percent (20%) of the Contract Price, including Change Orders.
2.2.3 Design-Builder acknowledges and agrees that the foregoing damages are based on an evaluation by the City of damages that it will incur in the event of late completion. Design-Builder and the City agree that the amount of such damages are impossible to ascertain as of the date of execution hereof and the Parties have agreed to such Liquidated Damages 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 his Agreement are not a penalty and that such amounts are not manifestly unreasonable under the circumstances existing as of the date of execution of this Agreement.
2.2.4 It is further mutually agreed that the City shall have the right to deduct Liquidated Damages against progress payments or retainage and that the City will issue a unilateral deductive change order and will reduce the Contract Price accordingly. 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.
ATTACHMENT 2
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2.3 Delays and Extensions of Time.
2.3.1 Non-Compensable Delays. The Parties acknowledge that the following types of delays and events are not within the responsibility or control of the City, and are reasonably contemplated by the Parties to occur during the course of performance of the Work which may impact the schedule for performance: construction by separate Design-Builders on or adjacent to the Project site; and 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 Contract Time, to the extent permitted under Section 8.2 of the General Conditions, shall be the sole remedy of Design-Builder for the above 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 paragraph including, without limitation, consequential damages, lost opportunity costs, impact damages or other similar remuneration.
2.3.2 Compensable Delays . If the date for Substantial Completion of the Work is delayed by events which are the responsibility of or within the control of the City, are unforeseeable and are unreasonable under the circumstances involved, the Design-Builder shall be entitled to an equitable adjustment of the Contract Time and/or the Contract Sum, subject to the requirements of Article 8 of the General Conditions and provided Design-Builder complies with the notice and procedural requirements of Article 4 of the General Conditions.
ARTICLE 3 – CONTRACT PRICE
3.1 Lump Sum Price.
In consideration of Design-Builder’s performance of the Work described herein, City agrees to pay Design-Builder the Lump Sum Contract Price of: two million, seventy-six thousand, five hundred and sixty-two dollars ($2,076,562.00) including applicable sales tax, subject to additions and deductions by Change Order as provided in the Contract Documents. Except as otherwise provided in the Contract Documents, the Contract Price will fully compensate Design-Builder for the duration of the Work required by the Contract Documents.
ARTICLE 4 – PAYMENT
4.1 Cost and Man- Loaded Schedule of Values.
Within ten (10) working days after City issues a Purchase Order, the Design-Builder shall submit to the City for review, a detailed Cost and Man-Loaded Schedule of Values allocating the entire Contract Price, as contained in the Summary Price Agreement forms attached hereto collectively as Exhibit F, and miscellaneous costs of the Work sufficient detail to serve as the basis for progress payments for performance of such Work. The prices contained in the Cost and Man-Loaded Schedule of Values shall include and cover the furnishing of all materi als, the performing of all labor requisite or proper, supervision, overhead, profit, taxes, and the providing of all necessary machinery, tools, appurtenances, equipment and other means required to fully complete this contract, except as otherwise specifically provided in the Spec ifications. Sales tax is calculated at 10% . Should the sales tax rate change, the difference will be addressed via Change Order. The Cost and Man-Loaded Schedule of Values, as agreed to by the City , shall be used as a basis for payments to Design- Builder based upon the percentage of ATTACHMENT 2
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Work completed as determined by the Engineer. The period covered by each Application for Payment for the Work shall be by benchmark.
4.2 Payment Benchmarks.
Notwithstanding any information contained in the Cost and Man- Loaded Schedule of Values, the amounts contained in any Design- Builder Application for Payment of labor or materials shall be submitted according to the following Payment Benchmarks.
4.3 Payment Benchmarks (Equipment).
Notwithstanding any information contained in the Cost and Man- Loaded Schedule of Values, the amounts contained in any Design- Builder Application for Payment of labor or materials shall be submitted according to the following Payment Benchmarks:
Benchmark
% of Contract Price to be Billed
1. Contract Award (PO issuance) 5% of Contract Price
2. Design approvals by BWP
(after submittal for the Owner’s review)
10% of Contract Price
3. Equipment items ordered 10% of Contract Price
4. City approval of equipment drawings from manufacturers 10% of Contract Price
5. Site Mobilization 5% of Contract Price
6. Demolition and site prep complete 5% of Contract Price
7. Structural foundation and infrastructure complete 5% of Contract Price
8. Dual function catalyst delivery to site 20% of Contract Price
9. Construction complete 15% of Contract Price
10. Commissioning complete 5% of Contract Price
11. Performance tests complete 10% of Contract Price
ATTACHMENT 2
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4.4 Procedures for Payment.
Each Application for Payment and payment shall be made in accordance with the procedures set forth in the General Conditions. An estimated billing/invoice schedule shall be provided and updated throughout the term of this Agreement to indicate cash flow requirements for the Project.
ARTICLE 5 – DESIGN-BUILDER'S DUTIES AND RESPONSIBILITIES
5.1 General Scope of Services.
5.1.1 Furnish all design and other Services, provide all materials and undertake all efforts necessary or appropriate to construct the Project in accordance with the requirements of the Contract Documents, all Governmental Approvals, the approved Construction Documents, all Applicable Law, and all other applicable safety, environmental and other requirements taking into account the constraints affecting the Project site. Design -Builder shall furnish the design and other Services, provide all material of the Project and shall construct the Project as designed, in accordance with all professional engineering principles and construction practices generally accepted as standards of the industry in the State of California, in a good and workmanlike manner, free from defects and in accordance with the terms and conditions set forth in the Contract Documents on a Turnkey Contract Basis. Except as otherwise specifically provided in this Contract, all materials, services and efforts necessary to achieve Substantial Completion of the Project and elements thereof on or before the Milestone deadlines 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 Contract Price.
5.1.2 The scope of Services to be provided by Design- Builder is set forth in the Contract Documents as more particularly described in the Design and Performance Criteria, Preliminary Drawings and Technical Specifications.
5.1.3 The Design-Builder shall hold and maintain a valid California “Class A-General Engineering Contractor” license at the time of Proposal submittal at all times during performance of the Work.
5.1.4 All Subcontractors shall hold and maintain the appropriate California C -specialty license, A - general engineering contractor license or engineering license, indicated on the Subcontractor List and Declaration at the time of Proposal submittal and at all times during performance of the Work.
5.2 Before Starting Work.
Design-Builder shall submit the following to the City for review within ten (10) working 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 stages of the Work including each Milestone specified in the Contract Documents;
B. A schedule of required submittals and the times for submitting, reviewing and processing each submittal; and
ATTACHMENT 2
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C. The Cost and Man-Loaded Schedule of Values referenced in Paragraph 4.1 herein acceptable to City in form and substance.
5.3 Initial Conference.
Within twenty (20) working days after the issuance of the Notice to Proceed, a conference attended by the City and Design-Builder and others as appropriate will be held to establish a working understanding among the Parties as to the Work and to discuss the design concepts, updating schedules, progress meetings, procedures for handling submittals, processing Applications for Payment, maintaining required records, coordination with Design-Build Team Members, other subcontractors and other Project administration matters.
5.4 Evaluation of Preliminary Submittals.
After Purchase Order issuance and at least ten (10) days before submission of the first Application for Payment, a conference attended by Design-Builder, the 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) calendar days 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 the City. The detailed Project Schedule will be acceptable to the City as providing an orderly progression of the Work to completion within any specified Milestones and the Contract Time, but such acceptance will neither impose on the City responsibility for the sequencing, scheduling or progress of the Work nor interfere with nor relieve Design- Builder from Design- 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 the City. The City’s acceptance shall not be deemed to confirm that the schedule is a reasonable plan for performing the Work. Design-Builder’s schedule of submittals will be acceptable to the City as providing a workable arrangement for reviewing and processing the required submittals.
5.5 Key Personnel.
5.5.1 The Design-Builder’s single lead Project Manager and authorized representative for this Project is Wayne Truchan who has the authority to make decisions for and bind the Design -Builder. This Project Manager shall manage and coordinate all commercial and technical aspects of the Project and shall be dedicated 100% to this Project. The Project Manager shall submit monthly progress reports to the City and maintain the Project Schedule. The Project Manager originally assigned to this Project shall not be changed once the Project has commenced unless the Project Manager ceases to be in the Design- Builder’s employ. Design-Builder shall submit to the City in writing any proposed change in the Project Manager and obtain City’s prior written consent to any such change, which shall not be unreasonably withheld.
5.5.2 I n addition to the Project Manager and the Project Engineer, Design- Builder shall employ the Site Manager and key personnel identified in Exhibit F , attached hereto, or replacement personnel approved by the City in writing. The Site Manager may be different from the Project Manager. The Site Manager will be required to live in or near (within 120 minutes’ drive time) Burbank with 24-hour access during the period of time when construction is performed on the Project site. The City may at any time elect to add job categories to the key personnel list. The City has the right to review the qualifications and character of each individual appointed to a key position (including personnel employed by ATTACHMENT 2
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Subcontractors) and to accept or reject the use of such individual. If the City determines in its sole discretion that performance of any key personnel is unsatisfactory, then the City has the right to direct a change in such key personnel.
5.6 Design Phase Services.
5.6.1 Design Professional Licensing Requirements. The City does not intend to contract for, pay for, or receive any design services, which are in violation of any professional 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 furnishing the design of the Project, although the fully licensed design firms designated as members of the Design- Build Team will perform the design services required by the Contract Documents. Nothing in this article shall create a contractual relationship between such Design-Build Team Members and the City.
5.6.2 Standard of Care. All design Services to be performed by Design- Builder, the Design Team Members, Subcontractors, and their employees identified in Design- Builder’s Proposal Documents 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 jurisdiction in which the Project is located. The professional obligations of such persons shall be undertaken and performed in the interest of the Design- Builder. All design Services performed pursuant to this Agreement shall be 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 circumstances, involving the design and construction of an improvement such as this Project in compliance with the Contract Documents.
5.6.3 Preliminary Design Phase . After the 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 the City to understand the City’s requirements for the Project and review available data;
5.6.3.2 Advise the City as to the necessity of the City’s providing or obtaining from others additional reports, data or services and assist the 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 Project designed or specified by Design- Builder with whom consultation is to be undertaken in connection with the Project;
5.6.3.4 Prepare preliminary Design Documents consisting of final design criteria, preliminary drawings, outline specifications, written descriptions of the Project and other documents to fix and describe the size, quality and character of the entire Project; and
5.6.3.5 Furnish the preliminary Design Documents to and review them with the City for approval within the time indicated in the approved Project Schedule. Design- Builder shall not proceed with the Final Design Phase until it receives written authorization from City to do so.
5.6.4 Final Design Phase. After written acceptance by the City of the preliminary Design Documents Design-Builder shall:
ATTACHMENT 2
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5.6.4.1 On the basis of the accepted preliminary Design Documents, 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 the City, will be prepared, where appropriate, in general conformance with the sixteen division format of the Construction Specifications Institute) 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 Project, 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 the City for approval within the time indicated in the approved Project Schedule at increments of at least 30%, 60% and 90% completion of the Construction Documents. After the City’s approval of the final Construction Documents, said documents shall be incorporated as Contract Documents and a Contract amendment will be issued, attaching an index of the approved 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.
5.6.5 Certification of Construction. As a condition to final payment to Design-Builder, each Design Team Member shall provide written certification that the Work has been constructed in accordance with the Contract Documents and with the design provided by such Person.
5.7 Construction Phase Services.
5.7.1 General.
5.7.1.1 Construction Services shall be performed by Design- Builder and/or by qualified and licensed Design-Builders, 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 shall 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 the Work, whether temporary 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 procedures with the City.
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.
5.7.1.4 The Design-Builder shall keep the Project site free from accumulation of waste materials or rubbish caused by the Design-Builder’s operations. At the completion of construction of the Work, the Design-Builder shall remove from and about the Project the Design- Builder’s tools, construction equipment, machinery, surplus materials, waste materials and rubbish.
ATTACHMENT 2
A2-14
5.7.2 Supervision and Coordination of Construction.
5.7.2.1 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 in accordance with the Contract Documents. Design-Builder shall be solely responsible to see that the completed construction complies accurately with the Contract Documents and shall keep the City advised as to the quality and progress of the Work.
5.7.2.2 Design-Builder shall coordinate its Work with Burbank Water and Power and the City of Burbank to minimize disruption to the City’s utility operations
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 construction as required by the Contract Documents. Design- Builder shall at all times maintain good discipline and order at the site. Except as otherwise required for the safety or protection of persons or the Work or property at the site or adjacent thereto, and except as otherwise indicated in the Contract Documents, all construction at the site 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 the City’s written consent, which will not be unreasonably withheld.
5.7.3.2 Although the Design-Builder is not prohibited from working on Saturdays, Sundays, holidays, or after normal business hours, except as limited by ordinance, Design-Builder must obtain prior written approval from the Engineer before doing so and must demonstrate the Work requested to be performed is o n 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 the City by Design-Builder.
5.7.3.3 Unless otherwise specified in the Contract Documents, 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, temporary facilities and all other facilities and incidentals necessary for the furnishing, performance, testing, start-up and completion of the Work. Design-Builder, in the presence of the 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 provided in the Contract Documents. All warranties and guarantees specifically called for by the Contract Documents shall expressly run to the benefit of City. If required by the 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 with instructions of the applicable Supplier, except as otherwise provided in the Contract Documents.
ATTACHMENT 2
A2-15
5.8 Field Services during Commissioning.
During the start-up and operational phase, Design-Builder shall:
A. Provide the start-up, testing, refining and adjusting of any equipment or system.
B. Further develop systems and procedures for control of the operation and maintenance of and record keeping for the Project.
C. Develop written procedures, and t rain the designated City staff to operate and maintain the Project.
5.9 General Duties and Responsibilities.
5.9.1 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 mitigation measures and tran sportation related conditions of approval required by the Contract Documents.
5.9.2 Provide such assistance as is reasonably requested by the City in dealing with any governmental agency. Such assistance may include 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.
5.9.3 The Design-Builder shall comply with all Applicable Laws and shall give applicable notices pertaining thereto. The Design-Builder shall support the preparation and filing of all documents required to obtain the necessary approvals of governmental authorities having jurisdiction over the Work and/or the Project.
5.9.4 Provide and maintain field offices as described in the RFP Documents for persons designated by City.
5.9.5 Design-Builder shall be responsible for construction means, methods, techniques, sequences and procedures. Design-Builder shall supervise and be responsible to the City for acts and omissions of Design-Builder's employees, agents, officers, Subcontractors and other persons performing portions of the Work, as though all persons were directly employed by Design-Builder.
5.9.6 Mitigate delays to the Project in all circumstances, to the extent reasonably possible.
5.9.7 Maintain the Project Site and the immediate surroundings in a clean and orderly condition, free of weeds, trash and graffiti.
ATTACHMENT 2
A2-16
ARTICLE 6 – CITY'S DUTIES AND RESPONSIBILITIES
6.1 City’s Designation of Authorized Representative.
The City designates Sean Kigerl as the Engineer and the City’s authorized representative for this Project.
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.
The City reserves the right to order changes in the Work, to perform Work or operations related to the Project with the City’s own forces, and to award separate contracts in connection with the Project.
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 City 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 set forth herein.
6.4 Suspension by City for Convenience.
The City may, without cause, 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 performance of the Work, an adjustment to the Contract 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 Work, an adjustment to the Contract Time 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 Cont ract Documents or fails to perform any of its obligations under the Contract Documents, the City may, after ten (10) calendar days written notice to the Design- Builder, and without prejudice to any other remedy the City may have, make good such deficiencies. In such case, the City shall deduct from payments then or thereafter due the Design -Builder the cost of correcting 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) days of written demand from the City.
ATTACHMENT 2
A2-17
ARTICLE 7 – 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. 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 O fficials.
Design-Builder shall employ no City official nor any City employee in the Work performed pursuant to this Agreement. No officer or employee of the City shall have any financial interest in this Agreement in violation of applicable provisions of law.
7.3 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 (4) years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural defects must be filed within ten ( 10) years of the date of the alleged violation. Any questions concerning a contractor may be referred to the Registrar, Contractors’ State License Board, P.O. Box 26000, Sacramento, California 95826.
ATTACHMENT 2
A2-18
7.4 Notices.
Any notice or special instructions required to be given in writing under this Agreement shall be given either by personal delivery to Design-Builder's agent (as designated in Section 1 hereinabove) or to the City's 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, addressed as follows:
TO CITY: TO DESIGN-BUILDER:
Sean Kigerl
Power Production Engineer
City of Burbank
164 West Magnolia Boulevard
P.O. Box 631
Burbank, CA 91502-1720
All original Preliminary Notices and/or
Stop Notices are to be sent to:
City of Burbank
Financial Services – Purchasing
301 E. Olive Ave., Suite 305
Burbank, CA. 91502
Attn: Lisa Villegas, Senior Buyer
A copy shall be sent to:
Burbank Water and Power
164 W. Magnolia Blvd.
Burbank, CA 91502
Attn: Sean Kigerl, Pwr Prod Engr
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
All original Preliminary Notices and/or
Stop Notices are to be sent to:
_______________________________
_______________________________
_______________________________
_______________________________
_______________________________
A copy shall be sent to:
_______________________________
_______________________________
_______________________________
_______________________________
ATTACHMENT 2
A2-19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized offices the day, month and year first above written.
DESIGN-BUILDER CITY OF BURBANK
By: ____________________________
(signature)
_____________________________
(print name)
Its: ____________________________
(print title)
By: ____________________________
Dawn Roth Lindell
_____________________________
(print name)
Its: General Manager__________________
ATTEST
_______________________________
City Clerk
California Contractor’s
License No.: ____________________
Tax I.D. No.: ___________________
APPROVED AS TO FORM AND LEGAL
CONTENT:
By: ____________________________
Senior Assistant City Attorney
ATTACHMENT 2
A2-20
EXHIBIT A - SITE DESCRIPTION
PROJECT LOCATION
The project site is located in the northwest portion of the City of Burbank. The regional location of the project site is shown in the following Project Location Map. The project site is located at 310 N. Lake Street, Burbank, CA 91502.
Project Location Map
ATTACHMENT 2
A2-21
EXISTING CONDITIONS
The project site is shown in the following Aerial View of Project Site, the project site is developed and contains several equipment items and structures including a combined cycle power plant in the Northeast corner that will remain operational during the Project. Further details of the existing conditions are as observed from the mandatory site visit during the bidding phase.
Aerial View of Project Site
ATTACHMENT 2
A2-22
EXHIBIT B - PERFORMANCE BOND
KNOW ALL PERSONS BY THESE PRESENTS:
That we, ________________________________________________________, as Principal, and __________________________________________________, as Surety are held and firmly bound unto the City of Burbank (hereinafter "Obligee") in the penal sum of _________________________________________ Dollars ($ __________) lawful money of the United States, for the payment of which sum, well and truly to be made, we bind ourselves, our heirs, executors, administrators and successors, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH THAT:
WHEREAS, CITY by resolution of its Council passed on ______________, 2022, has awarded to _______________________________ License No. ___________, hereinafter designated as "Principal", a design -build contract for the Work described as the Lake One Power Plant Emissions Retrofit Project in accordance with RFP 1505; and
WHEREAS, the Principal has by a written agreement dated ______________, 2022, entered into a contract with the CITY for performance of the Work, which Design-Build Contract (“Contract”) and the Contract Documents are by this reference made a part hereof as though set forth in full herein.
WHEREAS, said Principal is required to furnish a bond guaranteeing the, prompt, full and faithful performance of its obligations under the Contract Documents concurrently with delivery to Obligee of the executed Contract.
WHEREAS, the Design -Builder and the Surety, jointly and severally, bind themselves, their heirs, executors, administ rative, successors and assigns to the CITY for the prompt, full and faithful performance of the Contract Documents, which is hereinabove incorporated by reference.
NOW, THEREFORE, if the Principal shall promptly, fully and faithfully perform each and all of the obligations and things to be done and performed by the Principal in strict accordance with the terms of the Contract Documents as said Contract Documents may be modified or amended from time to time; and if the Principal shall indemnify and save harmless the Obligees and all of their officers, agents and employees from any and all losses, liability and damages, claims, judgments, stop notices, costs, and fees of every description, whether in contract or in tort, whether imposed by law or equity, which may be incurred by the Obligees by reason of the failure or default on the part of the Principal in the performance of any or all of the terms or the obligations of the Contract Documents, as they may be amended and supplemented including, but not limited to, its liability for liquidated damages, and any warranties or guarantees required thereunder; then this obligation shall be void; otherwise, it shall be, and remain, in full force and effect.
ATTACHMENT 2
A2-23
In the event of a failure of performance of the Contract Documents by the Principal, which shall include without limitation, any breach or default of the Contract Documents, then, after written notice from the Obligees to the Surety, as provided for below, the Surety shall either remedy the default or breach of the Principal or shall take charge of the Work of the Construction Contract and complete the Construction Contract with a Design-Builder other than the Principal at its own expense; provided, however, that the procedure by which the Surety undertakes to discharge its obligations under this Bond shall be subject to the advance written approval of the Obligees.
If the Surety does not proceed to cure or remedy the Principal's default(s) of its performance of the Construction Contract with reasonable promptness, the Surety shall be deemed to be in default on this bond five (5) days after receipt of a written notice from CITY to the Surety demanding that the Surety perform its obligations under this Bond, and the CITY shall be entitled to enforce any remedy available to CITY.
Within five (5) days of CITY's written notice to the Surety of the failure of performance of the Construction Contract by the Principal, it shall be the duty of the Surety to give to the Obligee an unequivocal notice in writing of the Surety's election to remedy the default(s) of the Principal promptly, or to arrange for performance of the Construction Contract promptly by a Contractor other than the Principal, time being of essence to this Bond. In said Notice of Election, the Surety s hall state the date of commencement of its cure or remedy of the Principal's default(s) or its performance of the Construction Contract. The Surety's obligations for cure or remedy, include but are not limited to:
correction of defective work and completion of the Construction Contract, additional legal, design professional and delay costs arising from Surety's actions or failure to act; and liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual damages caused by delayed performance or non- performance by the Principal. The Surety shall give prompt written notice to the Obligee upon completion of the cure or remedy of the Principal's default(s) of its performance of the Construction Contract.
No alteration, modification or supplement to the Contract Documents or the nature of the Work performed thereunder including, without limitation, an extension of time for performance, shall in any way affect the obligations of the Surety under this bond. Surety waives notic e of any alteration, modification, supplement or extension of time or other change order.
FURTHER, Principal and Surety agree that if the CITY is required to engage the services of an attorney in connection with enforcement of the bond, each shall pay the CITY's reasonable attorney's fees incurred, with or without suit, in addition to the above penal sum.
The guarantees contained herein shall survive the final completion of the design and construction called for in the Contract Documents with respect to the obligations and liabilities of the principal which survive such final completion.
ATTACHMENT 2
A2-24
IN WITNESS WHEREOF, the above bound parties have executed this instrument under their several hands and seals this __ day of __, 2022.
Surety Name Principal
Signature of Attorney-in-Fact for Surety Signature
Type or Print Name Typed or Printed Name of Signatory
Address Type or Print Title
ATTEST
Surety Telephone Number (Corporate Seal)
Surety Fax Number
(Attach Attorney-in-Fact Certificate)
APPROVED AS TO FORM AND
LEGAL CONTENT:
By: ___________________________
Senior Assistant City Attorney
ATTACHMENT 2
A2-25
EXHIBIT C – PAYMENT (MATERIAL & LABOR) BOND
WHEREAS City of Burbank (“City”) has awarded to _______________________ (“Principal), Contract No. ________ for the design, construction and completion of the Lake One Power Plant Emissions Retrofit Project in accordance with RFP 1505,
WHEREAS Principal is required under the terms of the Contract to furnish a Bond to secure the payment of claims of laborers, mechanics, materialmen, and other persons as provided by law;
NOW, THEREFORE, we _________________________, as Principal, and ________________ ______________ (“Surety”), as Surety, are held and firmly bound unto the Owner in the sum of _________________________________________ Dollars ($ __________), this amount being not less than the Total Contract Price in lawful money of the United States of America, for payment of whic h sum well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents. In case suit is brought upon this Bond, Surety will pay reasonable attorneys’ fees to the City and the plaintiff(s) in an amount to be fixed by the court.
The condition of this obligation is such that, if the hereby- bonded Principal, or its heirs, executors, administrators, successors, or assigns, or Subcontractors shall fail to pay any of the persons named in Civil Code Section 3181 or to pay amounts due under the Unemployment Insurance Code with respect to work or labor performed under the Contract, or amounts due under the Contract, or any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of Principal or its subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to work or labor performed under the Contract, then the Surety herein named shall pay for the same in an amount not exceeding the sum specified in this Bond; otherwise, the above obligation shall be void.
This Bond shall inure to the benefit of any of the persons named in Civil Code Section 3181 as to give a right of action to such persons or their heirs, executors, administrators, successors, or assigns in any suit brought upon this Bond.
Further, Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or modification of the Contract Documents, or of the Work to be performed thereunder, shall in any way affect its obligations on this Bond, and it does hereby waive notice of such change, extension of time, alteration, or modification of the Contract Documents, or of the Work to be performed thereunder.
ATTACHMENT 2
A2-26
IN WITNESS WHEREOF, three 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 named herein, on the ____ day of ________, 2022, 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.
Surety Name Principal
Signature of Attorney-in-Fact for Surety Signature
Type or Print Name Typed or Printed Name of Signatory
Address Type or Print Title
ATTEST
Surety Telephone Number (Corporate Seal)
Surety Fax Number
(Attach Attorney-in-Fact Certificate)
APPROVED AS TO FORM AND
LEGAL CONTENT:
By: ___________________________
Senior Assistant City Attorney
ATTACHMENT 2
A2-27
EXHIBIT D - MAINTENANCE BOND
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, City of Burbank, State of California, and _______________________________ (hereinafter designated s “Principal”) have entered into an agreement for the furnishing of all materials, labor, services and transportation necessary, convenient, and proper to construct the Lake One Power Plant Emissions Retrofit P roject, Bid Schedule No. 1505, which said Agreement dated [INSERT DATE] and all of the Contract Documents attached to or forming a part of said Agreement, hereby referred to and made a part hereof; and
WHEREAS, pursuant to law, the Principal is required after Completion of the Work, and before the filing and recordation of a Notice of Completion for the Work, to file a good and sufficient bond with the body by whom the Contract is awarded, to secure claims for Maintenance equal to five percent (5%) of the total amount of the Contract which shall hold good for a period of one (1) year from the date of the City’s Notice of Completion and Acceptance is filed with the County Recorder, to protect the C ity against the result of faulty material or workmanship during that time.
NOW, THEREFORE, said Principal and the undersigned ________________ as corporate surety, are held firmly bound unto the City of Burbank, for repair or replacement of any and all of our Work together with any other adjacent Work which may be displaced by so doing, that proves to be defective in its workmanship or material for the period of one (1) year (except when otherwise required in the Contract to be for a longer period) from the date the City’s Notice of Completion and Acceptance, or equivalent is filed with the County Recorder, ordinary wear and tear and unusual abuse or neglect excepted. Said date of acceptance shall be as defined in Article 9 of the General Conditions of these Contract Documents, in the sum of: _______________________ Dollars ($_________________), lawful money of the United States, for the payment of which sum well and truly made, we bind ourselves, our heirs, executors, administrators, successors, or assigns, jointly and severally by these presents.
The condition of this obligation is such that if the said Principal or any of his or her or its subcontractors, or the heirs, executors, administrators, successors, or assigns or assigns of any, all or either of them, shall fail to execute within a reasonable amount of time, or fail to respond within seven (7) days with a written schedule acceptable to the City for same, repair or replacement of any and all Work, together with any other adjacent Work which may be displaced by so doing, that proves to be defective in its workmanship or material for the period of one (1) year (except when otherwise required in the Contract to be for a longer period) from the date the City’s notice of Completion and Acceptance is filed with the County Recorder, ordinary wear and tear and unusual abuse or negligence excepted with respect to such Work and labor, the surety herein shall pay for the same, in an amount not exceeding the sum specified in this Bond, otherwise the above obligation shall be void. In case suit is brought upon this bond, the said surety will pay a reasonable attorney’s fee to be fixed by the court.
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, virtue, and effect.
ATTACHMENT 2
A2-28
And the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition to the terms of said Contract or to the Work to be performed thereunder 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.
Death of the Principal shall not relieve Surety of its obligations hereunder.
IN WITNESS WHEREOF, two (2) identical counterparts of this instruments, each of which shall for all purposed be deemed an original hereof, have been duly executed by Principal and Surety on the date set forth below, the same of each corporate party being hereto affixed and these presents duly signed by its undersigned representative(s) pursuant to the authority of its governing body. Principal and Surety have caused this Bond to be duly executed and delivered as of this _____ day of ________, 2022.
Surety Name Principal
Signature of Attorney-in-Fact for Surety Signature
Type or Print Name Typed or Printed Name of Signatory
Address Type or Print Title
ATTEST
Surety Telephone Number (Corporate Seal)
Surety Fax Number
(Attach Attorney-in-Fact Certificate)
APPROVED AS TO FORM AND LEGAL
CONTENT:
By: ___________________________
Senior Assistant City Attorney
Note: This bond must be executed in duplicate and dated, all signatures must be notarized, and evidence of the authority of any person signing as attorney-in-fact must be attached.
ATTACHMENT 2
A2-29
EXHIBIT E - CHANGE AND EXTRA WORK ORDER
Burbank Water and Power
CHANGE AND EXTRA WORK ORDER
Order No.
P. O. No.
RFP No. 1505
Date
Project: Lake One Power Plant Emissions Retrofit Project
The following change is hereby made a part of the Contract Documents enumerated in the Agreement Between City and Contractor dated _______________ and shall be performed under the same terms and conditions as required by the original Contract Documents. Except as modified herein, the original Contract Documents and all prior amendments shall remain in full force and effect and all of the terms of the Contract Documents are hereby incorporated in this Change Order.
Item Number Detailed description of work to be performed, with quantities
In accordance with the applicable provisions of the specification as follows:
UNIT PRICE METHOD
Item Number Description Quantity Unit Price Extension
COST PLUS PERCENTAGE METHOD FOR WORK PERFORMED BY CONTRACTOR:
Item Number Description and quantity at actual cost to Contractor Price
1. Materials
2. Direct Labor
3. Plant and Equipment Rental
4. Installation, Maintenance, Operation, and
Dismantling of Plant Equipment
Sub-Total
Add 15% of Sub-Total
Total per this method
EXTRA WORK PERFORMED OTHER THAN BY CONTRACTOR’S FORCES:
Item Number Description and quantity at actual cost to Contractor Price
1. Materials
2. Direct Labor
3. Plant and Equipment Rental
4. Installation, Maintenance, Operation,
and Dismantling of Plant Equipment
OTHER METHOD:
Sub-Total
Add % per Contract
Total per this method
Item Number Description Price
ATTACHMENT 2
A2-30
The total price of the above requested changes and/or extra work is $
For this request the date of Substantial Completion will increase/decrease by day(s)
It is understood and agreed that any adjustment of the Contract Price associated with this Change Order includes compensation to the Contractor for all direct costs, indirect costs and expenses it has incurred or may incur in connection with the change in the Contractor’s Work, including but not limited to all costs, expenses and damages for any delay, disruption, acceleration, interference or hindrance and like costs associated with, resulting from, or incidental to the Change Order Work. Contractor hereby agrees that payments under this Change Order and extension of the Contract Time, if any, represent full satisfaction and final settlement of all such costs, expenses delays and damages set forth in the preceding sentence and Contractor waives and releases all claims for any and all additional costs or delays in the Contract Time.
Contractor/Design-Builder’s by Title
BURBANK WATER AND POWER
The work referred to hereinbefore is hereby approved for authorization by the City Manager, as follows:
Item Number Classification Additions to Contract Price
Alterations in Contract Work
Additions to contract work
Substitutions in contract work
Alterations in contract work
Substitutions in contract work
Deductions from contract work
$
$
$
Deductions from Contract Price
$
$
$
Original Contact Price
Original Completion Date
Total of Orders
Authorized to Date
Total of this Order
Revised Contract Price
The date of Substantial Completion as of this Change Order is:
$
Date of Completion
$
$
$
New Date of Completion
ATTACHMENT 2
A2-31
I have confirmed with the Finance Division and therefore certify that the foregoing additional compensation is within the budgetary appropriation for this public improvement.
_______________________ _____________________________________ Date Dawn Roth Lindell – General Manager, BWP
CITY ATTORNEY'S APPROVAL
Approved as to Form
By___________________________________
Date
Distribution: Original – City Clerk (via Purchasing); Copies (4) – Contractor, Purchasing Department, Finance Division, Burbank Water and Power
ATTACHMENT 2
A2-32
EXHIBIT F - DESIGN-BUILDER’S MANAGEMENT & KEY PERSONNEL
ATTACHMENT 2
A2-33
EXHIBIT G - SUBCONTRACTOR LIST & DECLARATION
ATTACHMENT 2
A2-34
EXHIBIT H - SUBCONTRACTOR/MANUFACTURER WARRANTY
Project: Lake One Power Plant Emissions Retrofit Project - City of Burbank
Subcontractor/Manufacturer:
Contractor:
Subcontract/Purchase Order Date:
Scope: [identify by trade or equipment]
The undersigned Subcontractor/Manufacturer (referred to for convenience collectively as “Subcontractor”) makes the following warranties to the Design-Builder and City of Burbank with respect to the scope of work furnished by or on behalf of Subcontractor at the above referenced Project (“Work”):
1. Subcontractor warrants that (1) all equipment and materials furnished to the Project will be of good quality and new; (2) the Work will be free from defects; (3) the Work furnished by Subcontractor will be fit for its intended function; and (4) the Work will conform to the requirements of the Contract Documents identified in the Agreement between City and Design-Builder (“Contract Documents”).
2. If requested by the Design Builder or City, Subcontractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment furnished.
3. In addition to any special warranties required by the Contract Documents, if it is determined that any portion of the Work, including labor, materials, or equipment furnished Subcontractor, its sub- subcontractors, suppliers and/or vendor(s), is defective in its workmanship or materials, at its sole cost and expense, agrees, for a period of one (1) year from the date of Final Completion of the Work, without any expense whatsoever to City, to repair or replace any or all of the Work, including any work performed by others which may be damaged or displaced by the correction of the defective Work. If the Warranty provides for exclusions, the exclusions must be stated clearly and approved by the City before award of the Design/Build Agreement.
4. In the event of Subcontractor’s failure to comply with the above conditions and remedy the defects or commence and diligently pursue remedy of the defects within a reasonable time, given the nature of the complaint but in no event later than ten (10) calendar days following written notification, Subcontractor does hereby acknowledge the City will proceed to have said defects repaired and made good at Subcontractor’s expense, and Subcontractor will honor and pay such costs and charges upon demand by the City.
5. Subcontractor further agrees to hold harmless and indemnify the City from all claims of liability or damage arising as a result of the defects in the Work.
6. This warranty is for the benefit of, and may be enforced by the City. This warranty shall not limit the obligations of Subcontractor in the case of Work defective when performed or material defective when supplied, regardless of when such defect first became apparent.
ATTACHMENT 2
A2-35
7. This warranty is in addition to any other warranties available to the City and shall not limit or eliminate any remedies otherwise available to the City, but is cumulative to such other remedies.
8. In the event of a claim under this war ranty, the City will provide a prompt written notice of the defect or warranty claim to the warranty administrator addressed as follows:
(Name of warranty administrator)
(business address)
(phone #)
(fax #)
This warranty is hereby issued and made effective on the date listed below.
SUBCONTRACTOR/MANUFACTURER
___________________________________
(firm name)
By: ________________________________
(signature and print name)
Its: ________________________________
(print title)
Contractor’s License No.: ______________
Expiration Date: ______________________
PWC Registration No. : ________________
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EXHIBIT I - FIELD CONTRACTOR ORIENTATION
BURBANK WATER AND POWER
FIELD CONTRACTOR ORIENTATION
CONTRACTOR / COMPANY NAME
BWP REPRESENTATIVE CONTRACTOR REPRESENTATIVE
Phone # Phone #
JOB / WORK INFORMATION
Date of Orientation Start Date Completion Date
Number of Contractor Personnel Check the Box on Right If Contractor Will Bring Materials on Site that Require an MSDS
System Contractor Is Working On
Nature of Work On Site
SCOPE OF CONTRACTOR ORIENTATION
All Contractors On Site Are Required To Review Sections I-IV Work Covered By Section V. Special Hazards and Work Conditions Check Each Box Below that Represents the Needs of the Contractor for Section V of the Contractor Orientation
Fall Arrest Confined Space Procedures
Control of Hazardous Energy(LOTO) Welding and Cutting / Hot Work Exposed Energized Electrical Work Trenching and Excavations Respiratory Protection Traffic Delineation
Asbestos Containing Materials Other
The Following Procedures and Rules Have Been Developed To Protect The Employees and Equipment of Burbank Water and Power. It Is Not Meant To Be All Inclusive Nor Does It Relieve Any Contractor Of Any Of Their Responsibility As Defined In The Contract, Or Any Federal, State or Local Regulations
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AREAS OF SPECIAL CONCERN
1.______________________________________________________________________
2.______________________________________________________________________
3.______________________________________________________________________
4.______________________________________________________________________
CONTRACTOR EMPLOYEE NOTIFICATION
The Contractor is responsible for informing their personnel of the above rules, regulations and information. All employ ees who will be on site to perform work shall sign the Contractor Employee Notification List. Failure to sign the Contractor Employee Notification List may result in removal of the Contractor employee from site.
CONTRACTOR INJURY/ILLNESS REPORTS
The Contractor shall provide an injury/illness report to BWP for any work related injury/illness that occurs on site within 24 hours of the event causing the injury/illness.
VIOLATIONS
Violations of the above rules and regulations including Attachment A and Code of Safe Practices may result in the employee and/or contractor being removed from the site.
BWP Representative_________________ Contractor Representative______________________
ATTACHMENT A & Code of Safe Work Practices
Attachment A and the Code of Safe Work Practices has been received and reviewed with all employees that will be involved with BWP projects.
Contractor Representative_____________________________
Competent and Qualified Person Designation Explanation Definitions:
Competent Person - means one who is capable of identifying existing and predictable hazards in the surroundings or working conditions which are unsanitary, hazardous, or dangerous to employees, AND who has the authorization to take prompt corrective measures to eliminate them.
Qualified Person - means one who, by possession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training and experience, has successfully demonstrated his/her ability to solve or resolve problems relating to the subject matter, the work or the project. Note: Generally speaking, a "Qualified Person" is considered to have a higher level of expertise than a "Competent Person". Explanation of Competent and Qualified Form: 29 CFR 1926 and 29 CFR 1910 (OSHA) requires your company to provide Competent Persons and/or Qualified Persons for various types of work. The Competent and Qualified Form has multiple boxes to be checked indicating the person(s) designated as "Competent/Qualified Person" for your company, depending on the scope of work. By checking each appropriate box as "Competent/Qualified Person" on the Competent and Qualified Form you are also indicating the person named has met any OSHA requirements for performing duties at this level of responsibility and has the authority to take prompt corrective measures to eliminate hazards and enforce safety rules for your company. Some of the check boxes on the Competent and Qualified Form may not have a specific OSHA regulation that mentions a "Competent or Qualified Person", however, this form is used to ensure BWP contacts the person(s) with the appropriate training and authority to take the actions necessary for the safety of your company's employees. While BWP does not require ATTACHMENT 2
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documentation prior to beginning work on site, BWP reserves the right to request documentation of the training and qualifications of those personnel designated as "Competent/Qualified Person" on the Competent and Qualified Form should management deem it necessary at a later date.
The Contractor Representative prints the name of the person(s) on the form who is to be the "Competent or Qualified Person" and checks each item in their scope of work for which they will be the "Competent or Qualified Person", if one person is to be the sole "Competent or Qualified Person", then the contractor should have each item in their scope of work checked under his name. If multiple personnel, or personnel with varying qualifications are needed, write the name of the "Competent or Qualified Person" in th e space provided and check only those items in the scope of work for which they will be the "Competent or Qualified Person".
Competent and Qualified Form
Based upon their training and experience, the following personnel have the authority of a Competent / Qualified Person Representative for the specific types of work noted by the check marks in the table below.
Name Of Competent / Qualified Person:
Fall Arrest Scaffold Requirements Welding & Cutting/Hot Work Control of Hazardous Energy(LOTO) Respiratory Protection Trenching and Excavations Exposed Energized Electrical Work Confined Space Procedure Process Safety Management Name Of Competent / Qualified Person:
Fall Arrest Scaffold Requirements Welding & Cutting/Hot Work Control of Hazardous Energy(LOTO) Respiratory Protection Trenching and Excavations Exposed Energized Electrical Work Confined Space Procedure Process Safety Management Name Of Competent / Qualified Person:
Fall Arrest Scaffold Requirements Welding & Cutting/Hot Work Control of Hazardous Energy(LOTO) Respiratory Protection Trenching and Excavations Exposed Energized Electrical Work Confined Space Procedure Process Safety Management Name Of Competent / Qualified Person:
Fall Arrest Scaffold Requirements Welding & Cutting/Hot Work Control of Hazardous Energy(LOTO) Respiratory Protection Trenching and Excavations Exposed Energized Electrical Work Confined Space Procedure Process Safety Management
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CONTRACTOR EVACUATION LIST
CONTRACTOR/COMPANY: _____________________________________________
DATE ENTERING SITE: _________________________________________________
DATE LEAVING SITE: __________________________________________________
The following Supervisor will account for all personnel that work for the above named Contractor during an Emergency Evacuation.
1.____________________________________________________________________
INFORMATION GUIDE
EMERGENCY # ________________________
BWP REPRESENTATIVE #___________________________________________________
AREA SUPERVISOR #________________________________________________________
EVACUATION AREA(S):
PRIMARY =.__________________________________________________________________
SECONDARY = _______________________________________________________________
EMERGENCY PROCEDURES:
A) Medical, Fire and Other Emergencies
1. For medical, fire and other emergencies the emergency dispatch telephone number is (818) 238- 3000.
The person making the call should be prepared to relay the following information:
- Type of emergency
- Location of emergency
- Severity of emergency
- Name of caller and telephone number call is being made from b) Evacuation Plan
1. Outside contractor personnel shall assemble at _____________________ (Site Specific.)
2. Supervisors shall be responsible to account for their personnel in the assigned areas. A Contractor Evacuation List will be provided by the Contractor Representatives prior to any personnel beginning work or entering the site. The Contractor Representative will also insure that all of the Contractor's personnel entering the site are informed of their evacuation area.
3. Personnel shall remain at their assembly areas until released by the BWP designee in charge of the emergency scene.
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CONTRACTOR EMPLOYEE NOTIFICATION LIST
I have been informed, and understand the rules; regulations and information contained in the Contractor Orientation, and understand violation of these rules may result in my removal from site.
Print Name Signature Date
1. 2.
3. 4.
5. 6.
7. 8.
9. 10.
11. 12.
13. 14.
15. 16.
17. 18.
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Attachment A
I. SECURITY
a) Identification and Access
1. No employee shall enter the Site without prior approval. b) Materials and Equipment
1. The following are specifically prohibited on site: Firearms or other deadly weapons, explosives or fireworks, alcoholic beverages, narcotics or non- prescription drugs, pets, open fires, posting of unauthorized signs.
2. Material and equipment shall be stored only in pre -approved areas. Unless prior approval is obtained, the use of BWP trash bins, dumpsters, etc., is not allowed. Contractors must make arrangements for storage and removal of all waste products or trash.
3. The use of cameras or video equipment shall be prohibited unless prior arrangements have been made.
II. HAZARDOUS MATERIALS AND HAZARDOUS WASTE
a) The following Hazardous Materials are found on site in some BWP facilities:
• _______________________________
• _______________________________
• _______________________________
• _______________________________
• _______________________________
b) All Contractor personnel working on site must be aware of the presence and hazards of these materials. Any personnel working in the immediate area must be notified of the appropriate actions to take in an emergency involving these materials.
III. EMERGENCY PROCEDURES
a) For medical, fire and other emergencies the appropriate BWP personnel (defined by BWP at beginning of the project) be notified using the company phone system or by cell phone.
1. The person making the call should be prepared to relay the following information:
- Type of emergency.
- Location of emergency.
- Severity of emergency.
- Name of caller and telephone number call is being made from.
2. The person making the call shall not break communication until directed to by the BWP person.
Depending on the BWP location Medical and chemical emergencies may be announced over the Public Address System.
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IV. GENERAL SAFETY
a) Work Apparel and Hearing Protection
1. Contractor employees shall wear the appropriate clothing and PPE as required by regulatory standards for the tasks they are assigned.
b) Vehicular Safety
1. Unless otherwise stated, only company owned or rented vehicles will be allowed on City of Burbank sites. All contractor employee personal vehicles shall park outside unless otherwise designated.
2. Seatbelts shall be worn.
3. Personnel shall not ride in the bed of the truck, on the running boards, fenders, etc., of any vehicle.
4. All persons operating motor vehicles must have the appropriate license for the vehicle being operated.
5. Cell phones are not to be used while driving. .
c) Housekeeping
1. Special attention shall be given to keeping the inside of the structures and surrounding grounds clean and free from trash and debris. Work areas and storage areas shall be continuously cleaned each workday.
3. Material and supplies shall be stored in an orderly manner to prevent their falling or spreading, and to eliminate tripping and stumbling hazards.
4. Flammable and combustible liquids shall only be stored, or dispensed, using Underwriters Laboratories or Factory Mutual listed safety containers and only in approved quantities.
6. Upon completion of work, all equipment, material and waste shall be removed from the facility or job site.
d) Hazardous or Toxic Materials
1. The Contractor shall provide Material Safety Data Sheets (MSDS)/Safety Data Sheets(SDS) covering all hazardous materials furnished under or otherwise associated with the work under this contract in accordance with applicable federal, state and local laws. Before entering the site, the contractor must provide a copy of all the Material Safety Data Sheets/Safety Data Sheets(SDS) for the mater ials that will be used on site to perform their work, or any of their subcontractor’s work. Should additional materials be needed after work has begun, the materials must receive approval by BWP and the MSDS/SDS must be on site and supplied to BWP before the material is brought on site.
2. All hazardous and toxic material brought on site, or generated by the work process, shall be clearly labeled with the Contractor's name. All containers must have the appropriate labels containing the information on the hazards of the materials. The minimum requirements for day use containers or similar containers that do not have the appropriate manufacturers warning label are: the trade name of the product, a hazard warning such as the NFPA 704 system or H.M.I.S.
System.
3. Hazardous and toxic materials shall only be stored in pre-approved locations.
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4. Contractors are responsible for all hazardous materials or toxic materials brought on site or generated by their work and shall properly dispose of all hazardous and toxic material for which they are responsible at their cost unless prior arrangements are made. Contractors shall immediately report any spills to the appropriate City of Burbank representative.
5. Hazardous Waste: For projects that will generate hazardous waste (i.e. abatement or decon work etc.), the following shall be followed.
• Hazardous Waste Manifests shall be sign by authorized City of Burbank employees only. • Hazardous Waste shall be packaged and labeled per DOT guidelines. (Added) e) Fire Equipment and Fire Hydrants
1. Fire equipment and fire hydrants shall not be used unless there is an emergency or unless prior approval has been given.
2. To prevent hydrant damage when using a fire hydrant, it shall be opened all the way when in use and closed all the way when not in use.
3. If a City fire extinguisher is used, it shall be turned in to the appropriate City representative. f) Ladders
1. All ladders and use of ladders shall comply with CCR Title 8- 1675, 29 CFR 1910.25, 1910.26 and 1910. 27.
2. Site Specific Rules regarding ladders are the following:
• Portable metal ladders shall not be used in proximity to energized electrical equipment. • Ladders shall not be used as scaffold platforms.
• Boxes, chairs, etc., shall not be used as ladders.
• Portable straight ladders shall be used only if they have non-skid bases. • When working from a portable ladder, employees shall ensure that the ladder is securely placed, held, tied, or otherwise made secure to prevent slipping or falling. • Personnel working from portable ladders shall wear fall arrest equipment whenever they are exposed to a fall of 24 feet or more.
g) Cranes, Hoists, Forklifts and Heavy Equipment
1. Only qualified persons shall operate any crane, hoist, forklift or heavy equipment.
2. All Contractor hoists and cranes must meet the requirements as specified in CCR Title 8 Subchapter 7, 29 CFR 1910 and 29 CFR 1926.
3. When operating boom-type lifting or hoisting equipment, the minimum clearance is 10 feet when the overhead line is carrying between 600 and 50,000 volts. The contractor will notify BWP whenever work is to be performed in close proximity to energized lines and equipment. Permits will be obtained as required by the City of Burbank to perform such work.
4. Upon request, the Contractor must provide the inspection records of any Contractor supplied hoist or crane to be used on site.
5. All forklift operators must have a license/certification as being qualified to operate a forklift and a current valid evaluation in dicating they have the skills necessary for the type of forklift they will be using.
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h) Area Protection and Access
1. Work area protection is the adequate protecting of all employees by the use of suitable barriers, warning signs, lights, flags, flagmen, etc., as the job requires on approaches to work areas, excavations, open manholes, floor holes, etc. Proper work area protection shall be preplanned.
2. Safe access shall be provided to all work areas.
3. Any open floor hole with a vertical dimension greater than four (4) feet shall have a suitable barrier with appropriately constructed guardrails, midrails and toeboards, or suitable cover, designed for 2 times the intended load. For short duration jobs, warning tape with signs denoting that 100% Fall Protection is needed, in conjunction with a standby employee to ensure personnel entering the designated area wear the appropriate fall arrest equipment, may be utilized. The barricade tape must be placed at least six (6) feet from the edge of the fall exposure and the standby employee must be present AT ALL TIMES WHEN THE FLOOR HOLE IS OPEN.
4. Open manholes are required to have a suitable barrier with appropriately constructed guardrails, midrails and toeboards.
5. Any Leading Edge type of fall exposure (roof, walkway without handrails etc.) in excess of four (4) feet shall be protected appropriately constructed guardrails, midrails and toeboards. For short duration jobs, warning tape with signs denoting 100% Fall Protection is needed may be used.
The barricade tape must be placed at least six (6) feet from the edge of the fall exposure. All personnel entering past the barricade tape must wear the appropriate fall arrest equipment. i) Tools and Equipment
1. All portable power tools, portable lighting, and other temporary equipment require the use of a Ground Fault Circuit Interrupter (GFCI).
2. Electrical equipment and tools shall be wired and grounded as required by applicable electrical codes.
3. Appropriate guarding shall be used on tools and equipment.
4. Defective tools and equipment must be identified as defective by tagging, marking etc. and may not be used until repaired.
5. Use of BWP tools or equipment is forbidden unless authorized by the BWP Representative. j) Operation and Modification of Equipment
1. Contractor employees shall not operate any switch, valve, breaker, etc.; unless they receive approval from their BWP representative for the equipment they need to operate.
2. Contractor employees shall not make any circuit logic, control modifications, or other modification to equipment without approval from the appropriate BWP representative.
V. SPECIAL HAZARDS AND WORK CONDITIONS
a) Fall Arrest
1. Fall arrest equipment shall be properly used when exposed to a fall in excess of six (6) feet, when the use of other fall protection means is not practical. Fall protection shall be provided 100% of the time personnel are exposed to a fall in excess of six (6) feet, with the exception of working from a portable ladder with a fall exposure of twenty-four (24) feet in height or lower. Any time personnel work from a portable ladder in excess of than twenty- four (24) feet, or climb a fixed ladder that has a fall exposure greater than twenty -four (24) feet; the appropriate fall protection measures must be taken. Appropriate fall arrest equipment is considered the following:
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i. A full body harness is required for use as part of the fall arrest system. A body belt or a chest harness is not considered proper fall arrest equipment. ii. All lanyards used for fall arrest shall have double locking snap hooks. iii. All lanyards used for fall arrest shall have a shock absorber that limits the arresting force to less than 900 pounds in the event of a fall.
iv. Those devices which limit the fall distance in such a manner as to ensure the arresting force does not exceed 900 pounds may be used without a shock absorber (e.g.: retractable lifelines, ladder clamps, etc.).
Note: Floor Holes and Leading Edge Fall Exposures require fall protection or fall arrest at an exposure of 4 feet.
2. Additional requirements and information on fall protection may be found in 29 CFR SUBPART M.
b) Control of Hazardous Energy (Lockout/Tagout, LOTO)
1. BWP requires all contractors to comply with 29 CFR 1910.147 – Control of Hazardous Energy (Lockout/Tagout) Procedures.
2. No personnel shall work in such proximity to any part of an electric power circuit that he may contact in the performance of the work unless protected against electrical shock. Effective protection is considered to be the following:
i. De-energize the circuit.
ii. If the circuit is required to be worked on while energized, it must be guarded by effective insulation or other means and must conform to the guidelines for work performed on energized equipment, as found in 29 CFR 1910.269 and the additional requirements CCR Title 8.
c) Exposed Energized Work
1. Any crane or overhead work shall keep proper clearance from energized lines and equipment. A minimum of 10 feet of clearance is required for energized lines up to 50 kV. An additional 0.4 inches for each 1kV over 50kV will be added to the minimum 10 foot clearance.
2. If work will be in close proximity to energized lines or equipment, a request for a clearance is required. There is a 48 hour notice requirement. Please contact the BWP Energy Control Center at 818-238-3750.
3. Warning signs shall be posted in areas where possible work near or under overhead power lines is to be conducted.
d) Respiratory Protection
1. Respirator protection shall be worn when required. The Contractor's Respiratory Program shall meet the applicable OSHA standard for the operation or maintenance to be performed. Upon request, the records of your respirator program shall be provided to BWP for the personnel needing to use respiratory protection.
2. Additional information on respiratory protection may be found in 29 CFR 1910.134 and 1910.120 and CCR Title 8, Section 5144.
e) Asbestos Containing Materials
1. Contractor shall be notified of types and locations of asbestos containing materials.
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2. Contractors handling or removing asbestos shall be properly trained. Removal projects shall follow all regulatory guidelines, including permits, notifications, monitoring and disposal.
Copies of all monitoring reports shall be submitted to project manager. f) Confine d Space
1. Confined Space Entry Permit shall be obtained before entering into any confined space. The Confined Space Entry Permit shall be obtained from the appropriate BWP Representative. All confined space work shall meet the requirements of OSHA and CCR regulations.
2. Responsibilities:
i. Contractors Representatives shall coordinate their requests for a Confined Space Permit through their BWP representative. Unless other arrangements are made through the BWP representative, it is the Contractor's responsibility to assign a qualified person to authorize a Confined Space Permit, as the Person in Charge of the Work, and to provide a rescue plan, the personnel, equipment and/or devices necessary to ensure the requirements of the Confined Space Permit are met.
g) Welding and Cutting/Hot Work
1. A welding and cutting/ hot work permit is required whenever welding, cutting or heating is done.
Welding and cutting permits shall be coordinated through the appropriate BWP representative.
All appropriate safety precautions shall be followed.
2. When welding or cutting in elevated positions, precautions shall be taken to prevent sparks and hot metal from falling on people and equipment below. Walls, roofs, ceilings, pipes, tanks and partitions shall be assessed to dete rmine if welding or cutting on them will cause a fire due to conductive heat, radiated heat or sparks from the hot work process. Ductwork shall be considered when performing welding; cutting or other hot work that might carry sparks or otherwise causes a fire at a distant location. The ducts must be protected, or shut down to prevent fires due to the welding, cutting or hot work if is determined the work may cause a fire. The person requesting the permit or the BWP Representative shall notify the appropriate Operations Area Supervisor when beginning work, and at the end of each shift that the day's hot work has concluded until the hot work being performed under the permit is complete.
3. Welding screens shall be used while working next to other employees or walkways and stairways.
4. Suitable fire extinguishing equipment shall be immediately available at all locations where welding and cutting work is being performed.
5. A fire watch shall be provided during and after the work is completed to ensure no fire hazards exist. The minimum length of time for a fire watch is 30 minutes, however, based upon the determination of the BWP Representative, the fire watch may be required for up to an hour. h) Trenching and Excavations
1. Prior to digging a trench or excavation, a determination of underground installations must be performed. Area to be excavated must be marked and Underground Service Alert notified by calling 811. The layout of the excavation is required to be compliant with CCR Title 8, Section 4216.
2. All excavations 5 foot or deeper shall be shored or sloped in accordance with Federal, State and local standards. Contractor shall obtain all required permits prior to performing the work.
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3. All excavations 4 feet or deeper shall have a ladder for acc ess into the excavation with no more than 25 feet of travel in any direction.
4. Spoil piles shall be kept a minimum of 2 feet from the edge of the excavation.
5. The soil type shall be determined for excavations and trenches.
6. All excavations or trench operations shall be inspected and supervised by a “Competent Person”.
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EXHIBIT J - GENERAL CONDITIONS
1. GENERAL PROVISIONS
1.1 DEFINITIONS.
Whenever the words defined in this Section, or pronouns used in their stead, occur in any of the Contract Documents, they shall have the meaning herein given unless the context clearly indicates to the contrary.
Affidavit of Final Completion . A sworn affidavit from Design -Builder and all Design- Build Team Members identified in the Agreement submitted to the City in a form approved by the City that the Work has been completed in strict accordance with the Contract Documents, no lawful debts for labor or materials are outstanding, all requests for payment of undisputed funds are accurate, complete and final and no additional compensation above the final payment is due under the Contract, there is no existing default by Design-Builder or pending claim by a third party, and, upon receipt of final payment, Design- Builder and its Subcontractors acknowledge that the City will be released from any claims or liability for additional sums on account of undisputed Work.
Agreement. When capitalized, means document signed by the City and Design-Builder for performance of the Work, as amended from time to time, which sets forth the rights and obligations of the Parties, including all exhibits and attachments.
Applicable Laws. All laws, statutes, codes, ordinances, and regulations of governmental authorities having jurisdiction over the Project, including, but not limited to, Applicable Law relating to disabled access.
As-Built Drawings. A set of drawings updated and marked to show deviations made during construction, details in the Work not previously shown, changes to existing conditions found to differ from those shown on existing drawings, and the actual installed position of equipment and fixtures.
Certificate of Final Acceptance. The formal written acknowledgement issued by the City to Design- Builder that the Work has been fully completed. At the City’s discretion, th e Certificate of Final Acceptance and Notice of Completion may be used interchangeably.
Certificate of Substantial Completion . The formal written acknowledgement issued by the City to Design-Builder that the Project has attained Substantial Completion.
Change. Substitutions, alterations, additions or deletions in the Work.
Change Notice. A document issued by City to Design-Builder detailing a proposed change in the Work, stating a proposed basis for adjustment, if any, in the Contract Price and Contract Time.
Change Order. A written order implementing changes in the Work for which adjustments to the Contract Price and Contract Time as those terms are defined in the Agreement, if any, have been agreed upon prior to the issuance of the change order. May be used interchangeably with “Change and Extra Work Order”.
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Change Order Request. “COR”. A document submitted at the Design -Builder’s own initiative to the City requesting that a Change Order be issued.
Change Proposal. A proposal for a Change Order submitted by the Design- Builder to the City, describing revisions to the Work and the basis for adjustment of the Contract Price and Contract Time, either in response to City’s Change Notice or at the Design-Builder’s own initiative in connection with a Change Order Request.
City. The City of Burbank.
Claim. A demand by Design-Builder for a time extension which is disputed by the City or payment of money or damages for work performed in connection with this Agreement that is disputed by the City.
Construction Documents. All technical drawings, shop drawings, working drawings, schedules, diagrams, specifications and samples, setting forth in detail the requirements necessary for Construction of the Project in accordance with the Contract D ocuments, approved by the City and incorporated into this Agreement after such approval. All amendments to the Construction Documents must be approved by the City prior to incorporation into the Agreement and prior to the construction of the Work affected by the change.
Contract. Depending on the context, "Contract" shall mean the Agreement, or the Contract Documents, which establish the respective rights and obligations of the Parties.
Contract Documents. The documents described in Article 1 of the Agreement.
Contract Price. The Contract Price indicated in the Agreement.
CPM Project Schedule. The schedule referred to in section 3.8 of these General Conditions.
Day. As used throughout the Agreement the terms "Day" or "Days" mean calendar days unless otherwise specifically designated.
Department. Burbank Water and Power.
Design and Performance Criteria. Those minimum performance and quality standards contained in the Preliminary Design Documents provided to the Design-Builder by the City.
Design-Builder. The Person entering into a Contract with the City for the Work, its agents and representatives.
Design Documents. All drawings (including plans, elevations, sections, details and diagrams), specifications, reports, calculations, records and submittals necessary for the design of the Project in accordance with the Contract Documents, following approval thereof by the City and others as required by the Contract Documents.
Design-Build Team Members. The Persons identified as such in the Recitals to the Agreement.
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Engineer. The Person designated as the City’s representative for the Project in the Agreement.
Interchangeable with the term “City Engineer”
Final Completion. The stage of performance when all Work has been completed in accordance with the Contract Documents including, without limitation, all correction or completion items noted in the Certificate of Substantial Completion. The determination of the date of Final Completion shall be made reasonably and in good faith by the City a nd shall be fixed in a Certificate of Final Acceptance issued by City. Interchangeable with the term “Final Acceptance.”
General Manager. The General Manager of Burbank Water and Power, or his or her designee.
Governmental Approval. Any approval, authorization, certification, consent, exemption, filing, permit, registration, or ruling required to design and construct the Project, excluding only those approvals identified as the responsibility of the City in the Contract Documents.
Lead Design-Build Team Member. The entity with overall management responsibility for the Project.
Modification. A modification is (1) a written amendment to the Contract signed by both Parties; (2) a Change Order signed by both Parties; (3) a Unilateral Time and Material Change Order issued by the City.
Notice to Proceed. The written notice given by the City to Design-Builder which authorizes the Design- Builder to commence performance of the Work.
Parties. The Parties to the Agreement, City and Design-Builder.
Person. Any individual, corporation, company, joint venture, association, partnership, trust or unincorporated organization.
Preliminary Design Documents. Preliminary Design Documents include the documents so defined in Article 1 of the Agreement.
Project Manager. The individual designated by Design- Builder as such pursuant to section 5.5.1 of the Agreement.
Project Schedule. The schedule for performance of the Work attached to the Agreement pursuant to which Design-Builder has agreed to complete the Work. The Project Schedule shall be adjusted pursuant to the provisions of the Contract Documents.
Record Documents. The documents described in Paragraph 3.9 herein.
Recovery Schedule. A plan submitted by Design- Builder in the event the Work is lagging behind the CPM Project Schedule, demonstrating Design-Builder’s proposed plan to regain lost schedule progress and to achieve Substantial Completion in accordance with the requirements of the Contract Documents.
Request for Information. A document issued by the Design- Builder requesting information or clarification of the Contract Documents.
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Services. When capitalized, means the sum total of productive and operative efforts used to generate the results as specified, indicated or implied in the Contract Documents, including all technical and professional services and Construction Documents. The term Services when used throughout the Contract Documents is interchangeable with the term "Work."
Services Agreement. Agreement for the Maintenance and Operations of the Burbank Landfill Gas to Energy Project. Services in this agreement does not commence until after Final Completion.
Shop Drawings. Shop drawings shall mean drawings, diagrams, performance curves, data sheets, schedules, templat es, patterns, reports, calculations, instructions, measurements, and similar information, for the Work furnished by or on behalf of Design-Builder to illustrate a portion of the Work.
Specifications. The Technical Specifications included in the Preliminary Design Documents.
Subcontractor. Any Person who enters into a subcontract with Design- Builder to perform any part of the Work. Unless otherwise specified, Subcontractor excludes suppliers, manufacturers and distributors.
Substantial Completion. The stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so the City can occupy or utilize the Work for its intended purpose; provided, however, that Substantial Completion of the entire Work shall not occur until the requirements of paragraph 9.4 herein have been satisfied.
Supplier. Any Person, other than an employee of Design-Builder, who supplies machinery, equipment, materials or systems to Design -Builder or any Subcontractor in connection with performance of the Work.
Time and Material Change Order. A Time and Material Change Order (“TMCO”), unilaterally issued by the City, instructing Design-Builder to perform Work, indicating expressly the intention to treat the items as changes in the Work, and setting forth the kind, character and limits of the Work as far as they can be ascertained, the terms under which changes to the Contract Price and Contract Time, if any, will be determined and the not to exceed estimated cost of the change. Upon final determination of the allowable costs, the Change Order shall be finalized to set forth the final adjustment to the Contract Price.
Turnkey Contract Basis. For purposes of this Contract, the term “Turnkey Cont ract Basis” means providing a completely finished facility ready for occupancy and use by the City in accordance with the requirements of the Design Documents, at a cost not exceeding the Contract Price, within the Contract Time, with Design-Builder assuming all risks relating to cost overruns, defects and delays arising from the design and/or the method of construction.
Work. All of the administrative, design, engineering, professional, manufacturing, supply, installation, construction, supervision, management, testing, verification, labor, materials, equipment, maintenance, documentation and other duties and services to be furnished and provided by Design-Builder as required by the Contract Documents, including all efforts necessary and appropriate to achieve Final Completion of the Project, except for those efforts which the Contract Documents specify will be performed by the City or other Persons.
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Work Directive. A written order signed by the City in the event of any dispute regarding the scope of the Work. The Work Directive will describe the Work in question and will state the basis for determining compensation, if any, pending resolution of the dispute.
1.2 CORRELATION AND INTENT OF CONTRACT DOCUMENTS.
1.2.1 Complimentary Documents. It is the intent of the City and Design-Builder that the Contract Documents include all items necessary for proper execution and completion of the Work. The Contract Documents are complimentary, and what is required by one shall be as binding as if required by all.
1.2.2 Severability. In the event any provision of the Contract Documents shall be deemed illegal, invalid, unenforceable and/or void by a court of competent jurisdiction or any other governmental agency of competent jurisdiction, such provision shall be deemed to be seve red and deleted from the Contract Documents, and all remaining provisions hereof shall, in other respects, continue in full force and effect.
1.2.3 Provisions Required by Law Deemed Inserted. Each and every provision and clause required by law to be inserted in the Contract Documents shall be deemed to be inserted herein and the Contract Documents shall be read and enforced as though such provision or clause is included herein.
1.2.4 Explanations, Errors and Omissions. The Design- Builder will not be allowed to take advantage of any error or omission in the Contract Documents. Should it appear that the Work to be done or any matter relative thereto is not sufficiently detailed or explained in the Contract Documents, Design-Builder shall submit a Request for Information to Engineer, in writing, asking for such further written explanations as may be necessary. Design -Builder shall conform to the explanation provided.
Design-Builder shall promptly notify Engineer of all errors, omissions, inconsistencies or other defe cts (including inaccuracies and inconsistencies) which it may discover in the Contract Documents, and obtain specific instructions in writing regarding any such error, omission or defect, before proceeding with the Work affected thereby. Omission from the Contract Documents or the misdescription of details of Work which are necessary to carry out the intent of the Contract Documents, or which are customarily performed, shall not relieve Design- Builder from performing such omitted Work (no matter how extensive) or misdescribed details of the Work and they shall be performed as if fully and correctly set forth and described in the Contract Documents, without entitlement to a Change Order hereunder.
1.2.5 Interpretation. The Contract Documents are intended to be coordinated so that figures, words or notes exhibited on plans and not mentioned in the Specifications, or vice versa, are to be executed to the true intent and meaning thereof, the same as if mentioned in the Specifications and set forth in plans.
Work shown on plans, the dimensions of which are not given, is to be accurately followed according to the scale to which plans are made, but figured dimensions in all cases are to be followed, although they may differ from the scale measurements. The Engineer w ill interpret the meaning of any part of the Contract Documents about which any misunderstanding may arise, and his decision shall be final. In the event of the Design- Builder's failure to give such notice, the Design- Builder shall make good any damage or defect caused thereby. The execution of work specially detailed or explained without a previous written claim for an extra charge, shall constitute an acceptance by the Design -Builder of the detailed explanations as being in conformity with the Work covered by the Contract.
1.2.6 Meaning of Words. Unless otherwise stated in the Contract Documents, words which have well-known, technical or construction industry meanings are used in accordance with such recognized meanings. Whenever in the Contract Documents t he words “directed,” “required,” “permitted,” ATTACHMENT 2
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“ordered,” “designated,” “prescribed,” or words of like import are used, it shall be understood that the direction, requirement, permission, order, designation, or prescription of the Engineer is intended, and similarly the words “approved,” “acceptable,” “satisfactory,” or words of like impor t, shall mean approved or acceptable to, or satisfactory to the Engineer unless otherwise expressly stated.
1.3 OWNERSHIP AND USE OF DOCUMENTS.
1.3.1 The Construction Documents and other Project -related documents and electronic data prepared by or on behalf of the Design-Builder for the Project shall be deemed to be "works for hire" and are the property of the City. The Design-Builder hereby assigns to the City, without reservation, all copyrights to all Project-related documents, models, computer drawings and other electronic expression, photographs, and other expression produced by the Design-Builder. Among those documents are certain "Instruments of Service," including the design drawings, Design- Builder Specifications, and other documents that are required by the Contract Documents. Design- Builder shall obtain a valid written assignment of copyrights from its consultants in terms identical to those that obligate the Design-Builder to the City as expressed in this subparagraph, which copyrights the Design-Builder hereby assigns to the City. The City, in turn, hereby grants to the Design- Builder a nonexclusive license to reproduce the documents for purposes relating directly to the Design- Builder's performance of this Project, for the Design-Builder's archival records, and for the Design- Builder's reproduction of drawings and photographs in the Design-Builder's marketing materials provided the contents of those materials, as to this Project, are approved by the City. No other Project -related documents may be reproduced for any other purpose without the express written permission of the City. No other copyrights are included in this grant of nonexclusive license to the Design- Builder. This nonexclusive license shall terminate immediately upon the breach of this Agreement by the Design-Builder.
1.3.2 A copy of every technical memorandum and report prepared by Design- Builder shall be submitted to the City to demonstrate progress toward completion of Work. In the event the City rejects or has comments on any such work product, the City shall identify specific requirements for satisfactory completion by Design-Builder. Design-Builder shall provide the City with Project-related documents in reproducible or electronic format, upon the City’s written request. Complete Record Documents shall be turned over to the City upon termination of this Agreement or Final Completion, whichever occurs first. If the City subsequently reproduces Project -related documents or creates (or causes to create) a derivative work based upon Proje ct-related documents created by the Design -Builder, the City shall remove or completely obliterate the original professional seals, logos, and other indications on the documents of the identity of the Design- Builder and its consultants. However, where required by law, such identification with appropriate qualifying language or other statutorily prescribed information identifying the original architect or the scopes of the reuse of the documents may remain or be applied.
The City agrees to hold harmless and indemnify to the fullest extent permitted by law, Design -Builder against claims and costs that may arise from the alteration of these project-related documents by the City when used for other projects unless the claims or costs arise from the negligence or willful acts of the Design-Builder.
1.3.3 If the Design-Builder believes or is advised by any design professional retained to provide services on the Project that implementation of any instructions received from the City would cause a violation of any Applicable Law, the Design-Builder shall promptly notify the City in writing.
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2. CITY
2.1 SUPERVISION AND INSPECTION BY CITY
2.1.1 The Work shall be done in strict compliance with the approved Contract Documents under the supervision and to the satisfaction of the Engineer. The Engineer shall decide all questions that may arise as to the quality or acceptability of the Work performed and as to the manner or performance and rate of progress of the Work, and all questions as to progress payments or compensation.
2.1.2 The Engineer shall, at all times, have the right to inspect the Work and materials in the course of manufacture, assembly or installation and make such tests from time to time as may be deemed advisable. The Design-Builder shall keep the Engineer, or his designated representative informed as to the progress of the Work, giving ample notice, in advance, of appropriate times for inspection and tests, and shall furnish reasonable facilities for such inspection and tests for obtaining such information as Engineer may require respecting the Work and the character of the materials used.
2.1.3 All equipment and material purchased for this Project will be inspected by the Engineer upon delivery, and if any equipment or material is found not to comply with the Contract Documents, such equipment or material will be rejected.
2.1.4 The Design-Builder shall furnish all facilities for inspection during manufacture, and at the construction site and shops or yards as desired, and shall not conceal any Work requiring inspection until the same has been approved by the Engineer. If such Work should be concealed before inspection, the Design-Builder will be required to remove such portions of the Work as may be necessary to enable such inspection to be made.
2.1.5 As more particularly described in Article 12 herein, all Work rejected shall be remedied, or removed and replaced by the Design- Builder in a manner acceptable to the Engineer and no compensation therefore will be allowed or paid therefore to the Design-Builder. Any work done beyond the lines and grades shown on the Contract Documents or established by the Engineer, or any extra work done without valid written authority, will be considered as unauthorized and will not be paid for. Such unauthorized work done may be ordered removed at the Design-Builder's expense. Upon failure on the part of the Design-Builder to comply promptly with any order of the Engineer made under the provisions of these Contract Documents, the Engineer shall have authority to cause defective work to be remedied or removed and replaced and unauthorized work to be removed at the expense of Design-Builder, and to deduct the cost from any monies due or to become due the Design-Builder under this Contract.
2.1.6 Inspection or approval of the Work shall not relieve the Design-B uilder of any obligation to faithfully perform and comply with the Contract, and defective work shall be made good and noncomplying materials rejected and replaced at Design -Builder's expense, notwithstanding that such defective work has been previously overlooked by the Engineer and approved.
2.1.7 The Engineers’ inspections, as provided for in this Section, shall not be in- lieu of the appropriate building officials’ inspections.
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3. DESIGN-BUILDER
3.1 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS
3.1.1 By executing this Agreement, Design- Builder represents: (1) that it has visited the Project site, familiarized itself with the local and as -built conditions under which the Work is to be performed; (2) that it has familiarized itself with the nature, location and extent of concurrent construction projects in the vicinity of the Project; (3) that it has familiarized itself with the nature and extent of the Contract Documents, the Work, all Applicable Laws that may affect costs, progress, performance or furnishing of the Work; (4) that it has correlated local conditions and requirements with the City's requirements, schedule and budget; (5) that it has advised the City of any local conditions or requirements which vary from the City's requirements and made recom mendations to cure such variances; (6) that it is fully experienced, qualified and competent to perform the services set forth in this Agreement; (7) that it is properly equipped, organized and financed to perform the Work; (8) that it is properly permitted, licensed and registered by the State to perform the services of a Design-Builder; (9) that it has familiarized itself with all conditions bearing upon transportation, disposal, handling and storage of materials; (10) that it has familiarized itself with the availability of labor, water, electric power, and roads; (11) that it has familiarized itself with uncertainties of weather and physical conditions at the Project site; (12) that it has familiarized itself with the character of equipment and facilitie s needed preliminary to and during performance of the Work; and (13) that it has familiarized itself with the staging and material storage constraints of the Project site and will confine its staging and storage operations to approved areas.
3.1.2 Design-Builder has obtained and studied (or assumes responsibility to do so) all such examinations, investigations, explorations, tests, reports and studies which pertain to the physical conditions at or contiguous to the Project site or conditions which otherwise may affect the cost, progress, performance or furnishing of the Work, as Design- Builder considers necessary for the performance of the Work hereinafter defined, within the Contract Time and schedule and in accordance with the other terms and conditions of the Contract Documents and no additional examinations, investigations, explorations, tests, reports, studies or similar information or data are or will be required by Design- Builder for such purposes. Design- Builder may rely upon the accuracy of the technical data contained in any such documents provided by the City, but not upon non- technical data, interpretations, opinions or conditional statements contained therein or for the completeness thereof for Design-Builder's purposes.
3.2 LABOR AND MATERIALS
3.2.1 Labor Code. The Design -Builder shall strictly adhere to the provisions of the California Labor Code regarding minimum wages, the 8 hour day, the 40- hour week, overtime, Saturday, Sunday and holiday work, apprentice employment and training, workers’ compensation, certification, non - discrimination and prevailing wages, all as more specifically set forth in Article 15 herein.
3.2.2 Preparation for Shipment. The Design- Builder or Design-Builder's Suppliers shall prepare all articles and materials for shipment in such a ma nner as to protect them from damage in transit, and shall be responsible for and repair all damaged parts or replace all losses incurred in transit to the designated delivery point. When necessary, heavy parts shall be mounted on skids or crated, and all articles or materials that might otherwise be lost shall be boxed or wired in bundles. All articles shall be plainly marked for identification and destination. The Design-Builder shall prepare proper commercial bills of lading, three copies of which, together with a complete shipping list, shall be sent to the jobsite:
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310 North Lake Street, Burbank, CA 91502, unless otherwise directed by the City’s Project Manager.
3.2.3 Identification. All correspondence, drawings, shipping papers, documents and invoices pertaining to equipment described in the Contract Documents shall be plainly marked with the number of the Purchase Order Number. All bundles, boxes, crates, containers, and pieces of equipment shipped under the Contract Documents shall be plainly labeled with said number.
3.2.4 Delivery. Delivery shall mean the delivery to the jobsite of complete equipment or material components required by, and complying with, the Contract Documents.
3.2.4.1 The Design-Builder shall place orders for all equipment in time to prevent any delay in the Project Schedule or Substantial Completion of Project. If any materials or equipment are not ordered in time, additional charges made by equipment manufacturer's to complete their equipment in time to meet the Project Schedule, together with any special handling charges, shall be borne by the Design-Builder.
3.2.4.2 Materials shall be delivered in sample quantities from time to time as may be necessary for the uninterrupted progress of the Work. They shall be stored so as to cause the least obs truction to the premises and distributed so as to prevent overloading any portion of the structure. These areas shall be only in approved locations and shall not interfere with the work of any Separate Design- Builders with the use of property adjacent to the Project site.
3.2.4.3 The Design -Builder shall provide facilities and Personnel for unloading, receiving, and warehousing all equipment and materials at the jobsite. The City may, at the written request of the Design-Builder, furnish the personnel and facilities to unload, receive and warehouse the equipment and materials required under this Contract. For this service, the Design- Builder agrees to promptly pay the expense of the use of City personnel and equipment. Before the City will arrange to render the service, however, the Design-Builder shall first send a copy of the bill of lading to the Engineer. In performing this service, the City shall act as the agent of the Design-Builder. It is distinctly understood that the City shall in no event be responsible for, nor does it assume any liability for, the equipment or materials received under this paragraph, although reasonable care will be taken to check and store them.
3.2.4.4 All Work, equipment and materials shall be protected at all times. The Design-Builder shall make good all damage caused either directly or indirectly by its employees or Subcontractors. The Design-Builder shall also protect its own Work from damage. He shall close all pipe openings with caps or plugs during installation. It shall protect all of its equipment and materials against dirt, water, chemical and mechanical injury. Upon completion, all Work shall be thoroughly cleaned and delivered in a new condition.
3.2.5 Property Cityship
3.2.5.1 Except as otherwise provided for in Section 30 hereof, title to all material and equipment shall vest in the City upon shipment thereof, but all risk or loss in respect thereto shall remain with the Design-Builder until the City has accepted the material and equipment following the completion of erection and testing thereof. This risk of loss includes insuring the shipment and acting as the principal plaintiff in case of damage incurred during shipment or erection of the equipment.
3.2.5.2 Although title to the equipment and material passes to the City upo n shipment, as above ATTACHMENT 2
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specified, the Design -Builder shall have the charge and care thereof until completion of erection. He shall bear the expense of any theft or damage whatever to the equipment and materials during that period except that the City will bear the expense of any such damage that is caused by its negligence.
3.2.5.3 In case of a personal property tax being levied upon the equipment and materials to be furnished and installed under the Contract after delivery on the jobsite and the Design-Builder is required to pay such tax, the City will reimburse the Design-Builder for such tax upon presentation of a certified copy of such tax statement. In the event of such reimbursement by the City, the Design- Builder shall cooperate with the City and furnish such authority to the City as it may need in order to prosecute an action for refund of such taxes, and in the event of such a refund, the refunded taxes shall become the property of the City.
3.3 SUBSTITUTIONS
3.3.1 The burden of proof as to the type, function, and quality of any substitute product, material or equipment shall be upon the Design-Builder. The final determination of the acceptability of substitute items rests solely in the discretion of the City.
3.3.2 Without any increase in cost to the City, the Design-Builder shall be responsible for and pay all costs in connection with proposed substitutions and of inspections and testing of equipment or materials submitted for review prior to the Design -Builder's purchase thereof for incorporation in the Work, whether or not the City accepts the proposed substitution or proposed equipment or material. The Design-Builder shall reimburse the City for the charges of the City for evaluating each proposed substitution.
3.4 WARRANTY
3.4.1 Without limiting any other rights of the City, Design- Builder warrants to the City that: all equipment and materials furnished under the Contract will be of good quality and new; that the Work will be free from defects, including design defects, errors and omissions; the Project will be fit for use for its intended function; and that the Work will conform to the requirements of the Contract Documents.
Work not conforming to these requirements, including substitutions not made in accordance with the Contract Documents, shall be considered defective. If required by the Engineer, the Design-Builder shall furnish satisfactory evidence as to the kind and quality of materials and equipment furnished.
Without limiting any other rights or remedies of the City, if any defect in the Work arises within one (1) year after the date of Substantial Completion, upon receipt of written notice of such defect, as provided in Article 12 herein, Design-Builder shall promptly repair or replace such defective Work without cost to the City.
3.4.2 Design-Builder shall obtain in the name of the City (or such other name as City may designate in writing to Design-Builder) and transfer or assign to the City or the City's designee at the time of Final Completion of the Work, any and all warranties or guarantees which Design-Builder is required to obtain pursuant to the Contract Documents which Design- Builder obtained from any other Person or entity other than Design-Builder and further agrees to perform the Work in such a manner so as to preserve any and all such warranties.
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3.4.3 Design-Builder agrees to obtain from Subcontractors, material suppliers and manufacturers, warranties for labor and materials which extend beyond the one (1) year warranty and correction period required by the Contract for the following systems: any warranty upgrades or extensions which are offered by manufacturers of any equipment or system utilized in the Project, as part of the manufacturer's standard warranties shall be offered to the City by the Design-Builder.
3.5 TAXES
Design-Builder shall pay all sales, consumer, use, gross receipts and other similar taxes and/or customs charges required to be paid by Design-Builder in accordance with the laws and regulations of the place of the Project that are applicable during the performance of the Work. Notwithstanding the foregoing, the City in its sole discretion, may elect to pay any California sales or use taxes directly to the State of California, and when so paid the amount deducted from the Contract Price and Design- Builder shall have no further responsibility therefor. The City shall provide Design-Builder with appropriate evidence of payment of such taxes upon reasonable request.
3.6 APPLICABLE LAW
The Design-Builder shall keep fully informed of all Applicable Laws which in any manner affect those engaged or employed in the Work, or the materials used in the Work, or which in any way affect the conduct of the Work, and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. If any discrepancy or inconsistency is discovered in the Contract Documents for the Work in relation to any Applicable Law, including a change in Applicable Law, the Design- Builder shall forthwith report the same to the Engineer in writing. The Design-Builder shall at all times, observe and comply with and shall cause all of its agents and employees to observe and comply with, all Applicable Laws; and shall protect and indemnify the City, governing body, and all of the City’s officers, agents and employees against any claim or liability arising from or based upon the violation of any such law, ordinance, regulation, order or decree whether by Design-Builder or its agents or employees. If the Design-Builder performs the Work knowing it to be contrary to Applicable Law, the Design-Builder shall assume full responsibility and bear all costs attributable to correction.
3.7 PERMITS, LICENSES AND INSPECTIONS
The Design -Builder will apply for the any applicable general construction permit or other related permits. The Design-Builder shall obtain and pay for all plumbing and electrical permits and licenses, all permits and inspection in connection with the Work or operations in or over public streets and highways, and all other permits and inspections required in connection with the Work to be done under the Contract Documents, unless otherwise specified herein. Permits issued by the City of Burbank are “no fee”. The Design-Builder shall comply with and give notices required by all Applicable Laws.
3.8 SCHEDULE
3.8.1 Design-Builder shall prepare and periodically update a project schedule in a detailed precedence-style critical path method format satisfactory to the City and the Design-Builder, which shall also: (1) provide a graphic representation of all activities and events that will occur during performance of the Work; (2) identify each phase of construction and occupancy; and (3) set forth dates that are critical in ensuring the timely and orderly completion of the Work in accordance with the requirements ATTACHMENT 2
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of the Contract Documents (hereinafter referred to as Milestone Dates). Design-Builder shall create and maintain the schedule using MS Projects unless otherwise agreed to by City. Upon review and approval by the City of the CPM Project Schedule as a whole and of the Milestone Dates, the CPM Project Schedule shall be deemed part of the Contract Documents. The CPM Project Schedule shall be promptly revised by the Design- Builder in accordance with the recommendations of the City, if needed, and resubmitted. The Design- Builder shall monitor the progress of the Work for conformance with the requirements of the Project Schedule and shall promptly advise the City of any delays or potential delays.
3.8.2 With each Application for Payment submitted by Design- Builder, other than the Final Application for Payment, the Design-Builder shall submit to the City, as directed by the Project Manager, a current CPM Project Schedule revised to indicate the portion of the Work executed during the time period covered by the Application for Payment, all progress slippages occurring during the previously covered time periods and the corrective actions taken or slippage carry-over into the time period covered by the Application for Payment, all anticipated delays or difficulties, a Recovery Schedule, as applicable, and all other information required to accurately present the actual status of the progress of the Work as of the date of Application for Payment and as may be further required by the City or Design-Builder. If the Design-Builder does not submit the currently revised CPM Project Schedule with an Application for Payment, the City may withhold payment, in whole or in part, in addition to other causes for such withholding provided for in the Contract Documents. In the event any updates to the CPM Project Schedule indicate any delays, the Design-Builder shall propose an affirmative plan to correct the delay, including overtime and/or additional labor, if necessary. In no event shall any update constitute an adjustment in the Contract Time, any Milestone Date or the Contract Sum unless any such adjustment is agreed to by the City and authorized pursuant to a Change Order.
3.8.3 In the event any update to the Project Schedule shows the Work or any part thereof is lagging the CPM Project Schedule by ten (10) days or more, Design-Builder shall submit a Recovery Schedule, demonstrating Design- Builder’s proposed plan to regain lost schedule progress and to achieve Substantial Completion of the Work in accordance with the requirements of the Contract Documents.
3.9 RECORD DOCUMENTS AND AS-BUILTS
3.9.1 Design-Builder shall maintain in a safe place at the Project Site and make available to the City for inspection and copying, including digital copying, one record copy of all drawings, specifications, requests for information, written amendments, Change Orders, scheduling data, field orders and work change directives, in good order. In addition, Design-Builder shall maintain at the site, approved shop drawings, product data, samples and mock- ups, permits, inspection reports, test results, daily logs, schedules, subcontracts and purchase orders (“Record Documents”). The Record Documents shall be prepared and continuously updated during the prosecution of the Work. As part of Record Documents, Design-Builder shall maintain a set of As -Built Drawings on -site in good condition and shall use colored pencils to mark-up said set with "record information" in a legible manner to show:
A. deviations from the drawings made during construction;
B. details in the Work not previously shown;
C. changes to existing conditions or existing conditions found to differ from those shown on any existing drawings;
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D. the actual installed position of equipment, piping, conduits, light switches, electrical fixtures, circuiting, ducts, dampers, access panels, control valves, drains, openings, stub- outs and like items; and
E. Such other information as City may reasonably request.
Design-Builder's submittal of evidence of updated Record Documents shall be a condition precedent to City's duty to process payment applications.
3.9.2 Design-Builder, as part of the Contract Price, within thirty (30) calendar days after Substantial Completion or earlier termination of the Agreement and as a condition precedent to certifying of the final payment under the Contract, shall transfer the "As -Built" changes to the Work maintained by Design-Builder from the record drawings kept at the Project Site to: a true and complete final set of "As-Built" Mylar drawings capable of being reproduced and in the latest version of AUTOCAD format on flash drive(s); and final approved shop drawings; and a complete certified "As -Built" survey for the Project Site indicating the actual location of the improvements as constructed on the site. The Design - Builder's duty to provide such As-Built drawings, shop drawings and survey obligation shall survive the completion of the Work or termination of the Agreement.
3.10 INTELLECTUAL PROPERTY AND PATENT RIGHTS
3.10.1 The Design -Builder shall secure in writing from all patentees, copyright holders, and assignees of all Project -related document s, all copyrights, assignments, and licenses related to such expression (e.g., designs, drawings, Contract Documents, specifications, documents in computer form, etc.) as necessary to allow the City the full, unlimited, and unencumbered use of that expression for the execution, operation, maintenance, modernization or expansion of the Project. The Design-Builder shall immediately convey all such copyrights, assignments, and licenses to the City without reservation except that which is expressly allowed in this Article. In the case of products, materials, systems, etc., protected by patent, the Design-Builder and its consultants shall not specify or cause to be specified any infringing use of a patent.
3.10.2 Should the Design- Builder become aware of or receive notice of potential infringement of any intellectual property right related to the Project, regardless of the source of that awareness or notice, the Design-Builder shall (a) immediately cease the copying and any other activity which is the potential source of infringement; and within seven (7) calendar days (b) investigate the potential infringement; (c) submit to the City copies of all documents relating to that awareness, the notice, or the object thereof; and (d) issue to the City a complete written response and analysis of the potential infringement and the course of action recommended by the Design- Builder. The Design- Builder shall submit to the City a supplement of the initial report within seven (7) calendar days of the Design- Builder's receipt of, or awareness of, additional related information. Nothing in this Agreement shall be deemed to relieve the Design-Builder of its obligations under this Article, nor shall the City's receipt of the information indicated in this Article give rise to any duty or obligation on the part of the City.
3.10.3 The Design-Builder and its Faithful Performance Bond Surety shall indemnify, defend, and hold harmless, the City, its City Council and its officers, agents and employees from all liability, costs, and attorneys' fees incurred which are related to infringement of intellectual property rights, whether or not the infringement is potential, accused, or proven. Should the City become aware of, or receive notice of, potential, accused, or actual infringement of intellectual property rights, the City shall, in its sole option, have the right to engage independent legal counsel to advise the City as to the infringement. The ATTACHMENT 2
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costs and fees for such counsel shall be borne by the Design- Builder and shall be immediately recoverable by the City against amounts due or soon to be due to the Design-Builder or amounts already paid to the Design-Builder.
3.11 SUBMITTALS AND SHOP DRAWINGS
3.11.1 Design-Builder will review for compliance with the Contract Documents, approve and submit to Engineer, Shop Drawings, product data and similar submittals required by the Contract Documents. The City will review and approve submittals in accordance with the Contract Documents.
The City’s review and approval will be only to determine if the items covered by the submittals will, after installation or incorporation in the construction, conform to the information given in the Contract Documents and be compatible with the design concept of the completed project as a functioning whole as indicated by the Contract Documents. The City’s review and approval will not extend to means, methods, techniques, sequences or procedures of construction (except where a particular means, method, technique, sequence or procedure of construction is specifically and expressly called for by the Contract Documents) or to safety precautions or programs incident thereto. The review and approval of a separate item, as such, will not indicate approval of the assembly in which the item functions. Design- Builder shall make corrections required by the City, and shall return the required number of corrected copies of the required submittal for review and approval. Design-Builder shall direct specific attention in writing to revisions other than the corrections called for by the City on previous submittals.
The City’s review and approval of required submittals shall not relieve Design- Builder from responsibility for any variation from the requirements of the Contract Documents unless Design-Builder has in writing called the City’s attention to each such variation at the time of submission and the City has given written approval of each such variation by specific written notation thereof incorporated in or accompanying the submittal.
3.11.2 Where a submittal is required by the Contract Documents of related construction provided prior to the City’s review and approval of the pertinent submittal will be at the sole expense and responsibility of Design-Builder.
3.11.3 The Design-Builder shall prepare Shop Drawings necessary for the Work and shall check the same for accurate measurements taken from the Work, and when assured that such drawings have been properly prepared, shall submit same to the Engineer for approval.
3.11.4 When Shop Drawings cannot be made from actual dimensions taken from the Work but are prepared from the preliminary plans, it is understood that the Design- Builder is responsible for the accuracy of the information on which such drawings are prepared, for the City does not vouch for their accuracy, but will make available to the Design-Builder information upon which such plans were made.
3.11.5 It is understood that the Engineer's approval of the Shop Drawings is for the design only and not for dimensions or structural accuracy, but will make available to Design- Builder information upon which such plans were made.
3.11.6 Any material ordered by the Design-Builder prior to the approval of Shop Drawings shall be at its own risk. The Engineer shall have the right to keep Shop Drawings submitted for approval one (1) week before returning to the Design-Builder with corrections or approval, and no claim for delay on this account shall be recognized. Four (4) complete prints of each approved drawing prepared by the Design- ATTACHMENT 2
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Builder shall be furnished to the Engineer.
3.12 USE OF SITE AND OTHER AREAS
3.12.1 Design-Builder shall confine construction equipment, the storage of materials and equipment and the operations of construction workers to those lands and areas allowed by the City and other land and areas allowed by laws and regulations, rights -of-way permits an d easements, and shall not unreasonably encumber the premises with construction equipment or other materials or equipment.
Design-Builder shall assume full responsibility for any damage to any such land or area, or to the City or occupant thereof or of any adjacent land or areas, resulting from the performance of the Work.
Design-Builder shall, to the fullest extent permitted by laws and regulations, indemnify and hold harmless the City, its City Council and their officers, agents and employees from and against all claims, costs, losses and damages (including, but not limited to, fees of engineers, architects, attorneys and other professionals and court and arbitration or other dispute resolution costs) arising out of or resulting from any claim or action, legal or equitable, to the extent caused by or based upon Design- Builder’s performance of the construction.
3.12.2 During the performance of the construction, Design-Builder shall keep the premises free from accumulations of waste materials, rubbish and other debris resulting from the construction. At the completion of the construction Design-Builder shall remove all waste materials, rubbish and debris from and about the premises as well as all tools, appliances, construction equipment, temporary constru ction and machinery and surplus materials. Design-Builder shall leave the Site clean and ready for occupancy by the City at Substantial Completion. Design- Builder shall restore to original condition all property not designated for alteration by the Contract Documents.
3.12.3 Design-Builder shall not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor shall Design- Builder subject any part of the Work or adjacent property to stresses or pressures that will endanger it.
3.13 INDEMNITY
3.13.1 The City and its boards, officers, employees and/or agents shall not be answerable or accountable in any manner for any loss or damage that may occur to the Work or any part thereof, or for any of the materials or other things used or employed in performing the Work or for injury or damage to any person or persons, either workmen, employees of the Design- Builder or its Subcontractors or the public, or for damage to adjoining or other property, from any cause whatsoever arising out of, or in connection with, the performance of the work. The Design-Builder shall be responsible for any damage or injury to any person or property resulting from defects or obstructions or from any cause whatsoever arising out of, or in connection with, the performance of the Work, except for negligence or willful misconduct of the City, or of its agents, servants, or independent contractors.
3.13.2 The Design-Builder undertakes and agrees to indemnify and hold harmless the City and its boards, councils, officers, agents and employees, and, at the option of the City, defend the City and its boards, councils, officers, agents and employees, assigns and successors in interest from and against any and all suits and causes of action, claims, charges, damages, demands, judgments, civil fines and penalties, or losses of any kind or nature whatsoever, for death, bodily injury or personal injury to any person, including Design-Builder's employees and agents, or damage or destruction to any property of either Party hereto, o r third persons in any manner arising by reason of the negligent acts, errors, ATTACHMENT 2
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omissions or willful misconduct incident to the performance of this contract on the part of the Design- Builder, or the Design-Builder's officers, agents, employees, or Subcontractors of any tier, except for the sole active negligence or willful misconduct of the City.
3.13.2.1 The Design-Builder will defend any action or actions filed in connection with any of said claims, damages, penalties, obligations or liabilities and will pay all c osts and expenses, including attorneys' fees incurred in connection therewith.
3.13.2.2 The Design-Builder will promptly pay any judgment rendered against the Design-Builder or the City, its officers, employees and agents covering such claims, damages, penalties, obligations and liabilities arising out of or in connection with such work, operations, or activities of the Design-Builder hereunder; and the Design-Builder agrees to save and hold the City and its officers, employees and agents harmless therefrom.
3.13.2.3 In the event the City is made a part of any action or proceeding filed or prosecuted against the Design-Builder for such damages or other claims arising out of or in connection with the Work, operation or activities of the Design-Builder hereunder, the Design-Builder agrees to pay to the City any and all costs and expenses incurred by the City in such action or proceeding together with the reasonable attorneys' fees.
3.13.3 This indemnity shall survive termination or final payment to Design-Builder. This indemnity is in addition to any other rights or remedies the City may have under law or the Contract Documents.
In the event of any claim or demand against the City for which it is entitled to indemnity hereunder, the City may, in its sole discretion, reserve, retain or apply any monies due to Design-Builder or remaining in the Contract balance for the purpose or resolving such claims.
4. ADMINISTRATION OF THE CONTRACT
4.1 ROLE OF CITY’S ENGINEER
The City’s Engineer shall be responsible for oversight of the design, permitting and construction on the City’s behalf. Design -Builder shall deliver all Design Documents and Construction Documents and other submittals to the Engineer. All meetings regarding design and construction shall be coordinated through the Engineer. Design- Builder shall not be relieved of its obligations under the Contract Documents by City approvals.
4.2 CLAIMS AND DISPUTE RESOLUTION
4.2.1 Continuing the Work. Design- Builder shall carry on the Work and adhere to the Project Schedule during all disputes or disagreements with City. No Work shall be delayed or postponed pending resolution of any disputes or disagreements or pending change order requests.
4.2.2 Dispute Resolution. If a dispute arises out of or relates to this Contract, or the breach thereof, the Parties agree that the following negotiation and mediation process shall be used before the filing of a legal action.
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Builder or to grant an extension of time for the completion of the Work, he shall notify the Engineer, in writing and certified under penalty of perjury of such claim within fift een (15) calendar days from the date he has actual or constructive notice of the factual basis supporting the claim or at the weekly progress meeting required by the Contract Documents, whichever is sooner. The Design-Builder's failure to notify the Engineer within such period shall be deemed a waiver and relinquishment of the claim against the City.
If the Engineer determines that the Work in question is Contract Work and not extra work, or that the determination or order complained of is proper, Engineer will issue a Work Directive ordering the Design-Builder to proceed and the Design-Builder must promptly comply. However, in order to reserve its right to claim compensation for such work or damages resulting from such compliance, the Design- Builder must within five (5) days after receiving notice of the Engineer's determination and direction, notify the Engineer in writing that the work is being performed as extra work and that the determination and direction is being complied with under protest.
Claim r esolution is subject to Section 9204 of the Public Contract Code. For any conflict between Section 9204 and any section of the Contract Documents, Section 9204 will govern. If any dispute arises out of or relates to this Contract, or breach thereof, the parties agree to process any claim pursuant to Section 9204 before the filing of any legal action.
Section 9204 of the Public Contract Code reads as follows:
9204. (a) The Legislature finds and declares that it is in the best interests of the state and its citizens to ensure that all construction business performed on a public works project in the state that is complete and not in dispute is paid in full and in a timely manner.
(b) notwithstanding any other law, including, but not limited to, Article 7.1 (commencing with Section 10240) of Chapter 1 of Part 2, Chapter 10 (commencing with Section 19100) of Part 2, and Article 1.5 (commencing with Section 20104) of Chapter 1 of Part 3, this section shall apply to any claim by a contractor in connection with a public works project.
(c) For purposes of this section:
(1) “Claim: means a separate demand by a contractor sent by registered mail or certified mail with return receipt requested, for one of more of the following:
(A) A time extension, including, without limitation, for relief from damages or penalties for delay assessed by a public entity under a contract for a public works project.
(B) Payment by the public entity of money or damages arising from work done by, or on behalf of, the contractor pursuant to the contract for a public works project and payment for which is not otherwise expressly provided or to which the claimant is not otherwise entitled.
(C) Payment of an amount that is disputed by the public entity.
(2) “Contractor” means any type of contractor within the meaning of Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code who has entered into ATTACHMENT 2
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a direct contract with a public entity for a public works project.
(3) (A)“Public Entity” means, without limitation, except as provided in subparagraph (B), a state agency, department, office, division, bureau, board, or commission, the California State University, the University of California, a city, including a charter city, county, including a charter county, city and county, including a charter city and county, district, special district, public authority, political subdivision, public corporation, or nonprofit transit corporation wholly owned by a public agency and formed to carry out the purposes of the public agency.
(B) “Public entity” shall not include the following:
(i) The Department of Water Resources as to any project under the jurisdiction of that department.
(ii) The Department of Transportation as to any project under the jurisdiction of that department.
(iii) The Department of Parks and Recreation as to any project under the jurisdiction of that department.
(iv) The Department of Corrections and Rehabilitation with respect to any project under its jurisdiction pursuant to Chapter 11 (commencing with Section 7000) of Title 7 of Part 3 of the Penal Code.
(v) The Military Department a s to any project under the jurisdiction of that department.
(vi) The Department of General Services as to all other projects. (vii) The High-Speed Rail Authority
(4) “Public works project” means the erection, construction, alteration, repair, or improvement of any public structure, building, road, or other public improvement of any kind.
(5) “Subcontractor” means any type of contractor within the meaning of Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code who either is in direct contract with a contractor or is a lower tier subcontractor.
(d) (1)(A) Upon receipt of a claim pursuant to this section, the public entity to which the claim applies shall conduct a reasonable review of the claim and, within a period not to exceed 45 days, shall provide the claimant a written statement identifying what portion of the claim is disputed and what portion is undisputed. Upon receipt of a claim, a public entity and a contractor may, by mutual agreement, extend the time period provided in this subdivision.
(B) The claimant shall furnish reasonable documentation to support the claim.
(C) I f the public entity needs approval from its governing body to provide the claimant a written statement identifying the disputed portion and the undisputed portion of the claim, and the governing body does not meet within the 45 days or within the mutually agreed to extension of time following receipt of a claim sent by registered main or certified mail, return receipt requested, the public entity shall have up to three days following the next fully publicly noticed meeting of the governing body after the 45- day period, or extension, expired to provide the claimant a written statement identifying the disputed portion and the undisputed portion.
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(D) Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the public entity issues its written statement. If the public entity fails to issue a written statement, paragraph (3) shall apply.
(2)(A) If the claimant disputes the public entity’s written response, or if the public entity fails to respond to a claim issued pursuant to this section within the time prescribed, the claimant may demand in writing an informal conference to meet and confer for settlement of the issues in dispute. Upon receipt of a demand in writing sent by registered mail or certified mail, return receipt requested, the public entity shall schedule a meet and confer conference within 30 days for settlement of the dispute.
(B) Within 10 business days following the conclusion of the me et and confer conference, if the claim or any portion of the claim remains in dispute, the public entity shall provide the claimant a written statement identifying the portion of the claim that remains in d ispute and the portion that is undisputed. Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the public entity issues its written statement. Any disputed portion of the claim, as identified by the cont ractor in writing, shall be submitted to nonbinding mediation, with the public entity and the claimant sharing the associated costs equally. The public entity and claimant shall mutually agree to a mediator within 10 business days after the disputed portion of the claim has been identified in writing. If the parties cannot agree upon a mediator, each party shall select a mediator and those mediators shall select a qualified neutral third party to mediate with regard to the disputed portion of the claim. Each party shall bear the fees and costs charged by its respective mediator in connection with the section of the neutral mediator. If mediation is unsuccessful, the parts of the claim remaining in dispute shall be subject to applicable procedures outside this section.
(C) For purposes of this section, mediation includes any nonbinding process, including, but not limited to, neutral evaluation or a dispute review board, in which an independent third party or board assists the parties in dispute resolution through negotiation or by issuance of an evaluation. Any mediation utilized shall conform to the timeframes of this section.
(D) Unless otherwise agreed to by the public entity and the contractor in writing, the mediation conducted pursuant to this section shall excuse any further obligation under Section 20104.4 to mediate after litigation has been commenced.
(E) This section does not preclude a public entity from requiring arbitration of disputes under private arbitration or the Public Works Contract Arbitration Program, if mediation under this section does not resolve the parties’ dispute.
(3) Failure by the public entity to respond to a claim from a contractor within the time periods described in this subdivision or to otherwise meet the time requirements of this section shall result in the claim being deemed rejected in its entirety. A claim that is denied b y reason of the public entity’s failure to have responded to a claim, or its failure to otherwise meet the time requirements of this section, shall not constitute an adverse finding with regard to the merits of the claim or the responsibility or qualifications of the claimant.
(4) Amounts not paid in a timely manner as required by this section shall bear interest at 7 percent per annum.
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(5) If a subcontractor or a lower tier subcontractor lacks legal standing to assert a claim against a public entity because privity of contract does not exist, the contractor may present to the public entity a claim on behalf of a subcontractor or lower tier subcontractor. A subcontractor may request in writing, either on or his or her own behalf or on behalf of a lower tier subcontractor, that the contractor present a claim for work which was performed by the subcontractor or by a lower tier subcontractor on behalf of the subcontractor. The subcontractor requesting that the claim be presented to the public entity shall furnish reasonable documentation to support the claim. Within 45 days of receipt of this written request, the contractor shall notify the subcontractor in writing as to whether the contractor present the claim to be the public entity and, if the original contractor did not present the claim, provide the subcontractor with a statement of the reasons for not having done so.
(e) The text of this section or a summary of it shall be set forth in the plans or specifications for any public works project that may give rise to a claim under this section.
(f) A waiver of the rights granted by this section is void and contrary to public policy, provided, however, that (1) upon receipt of a claim, the parties may mutually agree to waive, in writing, media tion and proceed directly to the commencement of a civil action or binding arbitration, as applicable; and (2) a public entity may prescribe reasonable change order, claim, and dispute resolution procedures and requirements in addition to the provisions as this section, so long as the contractual provisions do not conflict with or otherwise impair the timeframes and procedures set forth in this section.
(g) This section applies to contracts entered into on or after January 1, 2017.
(h) Nothing in this section shall impose liability upon a public entity that makes loans or grants available through a competitive application process, for the failure of an awardee to meet its contractual obligations.
(i) This section shall remain in effect only until January 1, 2020, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2020, deletes or extends that date.
5. SUBCONTRACTORS, SUPPLIERS AND CONSULTANTS
5.1 SUBCONTRACTING ACT
5.1.1 The Subletting and Subcontracting Fair Practices Act, Sections 4100 et seq. of the California Public Contract Code (“Subcontracting Act”) requires Persons bidding on public works contracts to identify certain major Subcontractors as part of their bids. The City recognizes that because a design- build contract may be awarded prior to the completion of the design, it is often impracticable for the design-build entity to list all Subcontractors during the design and procurement phase of the Work. As a result, the Subcontractor listing requirements contained in the Subcontracting Act can create a conflict with the implementation of the design-build process by requiring all Subcontractors to be listed at a time when a sufficient set of plans may not be available. The City recognizes that certain Subcontractors can only be selected by the Contractor after a certain amount of design work is completed. Therefore, the City has postponed Design- Builder’s obligation to identify certain Subcontractors, subject to Design- ATTACHMENT 2
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Builder’s compliance with the Subcontractor selection policy set forth in this Section. All Subcontractors shall be afforded the protections contained in the Subcontracting Act.
5.1.2 The Subcontractor List and Declaration form shall be signed by D esign-Builder, agreeing that any Subcontractor not identified on the form who will perform Work or labor or render Service in the performance of the Contract in the amount exceeding ½ of 1% of the difference between the Total of the Contract Price and the amount allocated to Design Services, shall be submitted to the City for approval prior to the execution of any subcontract. Once a Subcontractor approved by the City has been selected for any such Work, Design- Builder shall not have the right to make any substitution of such Subcontractor except in accordance with the provisions of the Subcontracting Fair Practices Act, Public Contract Code §§ 4100, et seq. The Engineer shall serve as the hearing officer for the purposes of any hearing dealing with the substitution of a Subcontractor.
5.2 OBJECTION
Design-Builder shall not employ any subcontractor, engineer, supplier or other individual or entity against whom the City may have reasonable objection. Design-Builder shall not be required to employ any subcontractor, engineer, supplier or other individual or entity to furnish or perform any of the Work against whom Design-Builder has reasonable objection.
5.3 RESPONSIBILITY
Design-Builder shall be fully responsible to the City for all acts and omissions of the Subcontractors, engineers, suppliers and other individuals or entities performing or furnishing any of the Work under a direct or indirect contract with Design-Builder. Nothing in the Contract Documents shall create for the benefit of any such Subcontractor, engineer, supplier or other individual or entity any contractual relationship between the City and any such Subcontractor, engineer, supplier or other individual or entity, nor shall it create any obligation on the part of the City to pay or to see to Subcontractor, engineer, supplier or other individual or entity except as may otherwise be required by laws and regulations.
5.4 COORDINATION
Design-Builder shall be solely responsible for scheduling and coordinating Subcontractors, engineers, suppliers and other individuals and entities performing or furnishing any of the Work under direct or indirect contract with Design -Builder. Design- Builder shall require all Subcontractors, engineers, suppliers and such other individuals and entities performing or furnishing any of the Work to communicate with the City through the Design-Builder.
5.5 SUBCONTRACT AGREEMENTS
All services performed or provided to and material and equipment supplied to Design- Builder by a Subcontractor or Supplier will be pursuant to an appropriate design sub-agreement or construction sub- agreement between Design-Builder and the Subcontractor, engineer or supplier which specifically binds the Subcontractor, engineer or supplier to the terms and conditions of the Contract Documents, including prevailing wage and DIR reporting requirements, for the benefit of the City. The City shall have the right but not the obligation to review and accept the form and substance of Design-Builder’s agreements with Subcontractors. Whenever any such agreement is with a Subcontractor, engineer or supplier who is listed as an additional insured on the property insurance provided for herein, the agreement between the ATTACHMENT 2
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Design-Builder and the Subcontractor, engineer or supplier will contain provisions whereby the Subcontractor, engineer or supplier waives all rights against the City, Design- Builder, the City’s consultants and all other additional insureds for all losses and damages caused by any of the perils or causes of loss covered by such policies and any other property insurance applicable to the Work. If the insurers on any such policies require separate waiver forms to be signed by any Subcontractor, engineer or supplier, Design-Builder will obtain the same.
5.6 ASSIGNMENT
Each subcontract agreement for a portion of the Work is assigned by the Design- Builder to the City provided that assignment is effective only after termination of the Contract by the City and only for those subcontract agreements which the City accepts by notifying the Subcontractor in writing. Said assignments are subject to the prior rights of the sureties obligated on the bonds relating to this Agreement. Each subcontract shall specifically provide that the City shall only be responsible to the Subcontractor for those obligations of the D esign-Builder that accrue subsequent to the City's exercise of any rights under this contingent assignment.
6. PAYMENTS TO SUBCONTRACTORS AND STOP NOTICE CLAIMS
6.1 PROMPT PAYMENT
6.1.1 Design-Builder shall make prompt payment to its Subcontractors and Suppliers within seven (7) days after receipt of payment from the City.
6.2 STOP NOTICE CLAIMS
6.1.1 If at any time there shall be evidence of the existence, whether or not same has been asserted, of any stop notice or claim arising out of or in connection with the performance or default in performance of this Contract or any subcontract or supply contract entered into by Design- Builder to perform this Contract, and if the City might become liable f or the discharge or satisfaction of such stop notice or claim, then the City shall have the right to retain out of any payment then due or thereafter to become due, in addition to amounts for retainage and as otherwise set forth in Article 9 herein, an amount sufficient to discharge such stop notice or satisfy such claim and to reimburse the City and the representatives of the City for all costs and expenses in connection therewith, including attorneys’ fees.
Further, the City, in its sole discretion, shall have the right to discharge or satisfy such stop notice or claim and pay all costs and expenses in connection therewith if the Design -Builder does not have such stop notice or claim discharged, bonded, or satisfied within ten (10) calendar Days after receiving notice thereof from the City, or unless some other procedure for discharge or satisfaction of such stop notice or claim is agreed upon between the City and Design- Builder. If the amounts retain ed by the City are insufficient for the aforesaid purposes, or if such stop notice or claim remains undischarged or unsatisfied after all payments have been made to Design -Builder, then the Design-Builder shall refund to the City all monies that may have b een paid to discharge such lien or satisfy such claims, including costs, expenses and attorneys’ fees in connection therewith.
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7. CHANGES IN THE WORK
7.1 CHANGES
The City, without invalidating the Contract, and as provided by law, may order extra work or ma ke changes by altering, adding to, or deducting from Work, the Contract Price being adjusted accordingly.
All changes in the Work shall be performed under applicable provisions of the Contract Documents.
Design-Builder shall proceed promptly to perform the change unless otherwise directed in writing by the City. In giving instructions, the Engineer shall have authority to make minor Changes in Work not involving change in cost or time and not inconsistent with the intent of the Contract Documents.
Otherwise, except in an emergency endangering life or property, no extra work or change shall be made except in pursuance of a written Change Notice, Change Order or Time and Material Change Order issued by the City, and no claim for addition to contract sum shall be valid unless so ordered.
7.2 AUTHORITY TO ORDER CHANGES
7.2.1 No change shall be made nor extra work done except with the prior approval thereof by the Engineer and in conformity with the provisions of this Article. Minor changes in the Work that involve no extra cost, may be approved, authorized and ordered by the Engineer. The General Manager of Burbank Water and Power may execute any order for changes and/or extra work provided it is within the budgetary appropriations. The City Council must approve any order for changes and/or extra work that exceeds the budgetary appropriation therefore.
7.2.2 Design-Builder shall undertake, at its risk, Work included in any oral request, order, Change Notice, Change Order or Time and Material Change Order issued by a Person in excess of that Person’s authority as provided herein. Any Work performed by the Design- Builder beyond the lines and grades shown on the Contract Documents or any extra Work performed or provided by the Design-Builder without notice to the Engineer shall be considered unauthorized and at the sole expense of the Design- Builder. Work so done will not be measured or paid for and no extension of Contract Time will be granted on account thereof. Any such Work may be ordered removed at the Design-Builder’s sole cost and expense. The failure of the City to direct or order removal of such Work shall not constitute acceptance or approval of the Work nor relieve the Design-Builder from any liability on account thereof.
7.3 OWNER INITIATED CHANGE NOTICE
7.3.1 The City may issue a Change Notice, in writing, to the Design- Builder, describing a proposed Change to the Work and requesting the Design -Builder to submit a Change Proposal, in a format acceptable to the City, within fifteen (15) calendar Days after the City’s issuance of the Change Notice.
The Change Proposal shall include an analysis of impacts to cost and time, if any, to perform the extra work, or delete Work, as applicable, including the effects and impacts, if any, on unchanged Work, estimates of costs (broken down by the categories listed in paragraph 7.5 herein relating to change of the Contract Price) and Design-Builder’s proposed methods to minimize costs, delay and disruption to the performance of the Work. If Design- Builder fails to submit a Change Proposal within such period of time, it shall be presumed that the Change described in the Change Notice will not result in an increase to the Contract Price or Contract Time and the Change shall performed by Design-Builder without such increases. A Change Notice does not authorize the Design- Builder to commence performance of the changed work, unless otherwise specified in the Change Notice.
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7.3.2 If the Parties reach agreement on the cost of pricing such change, a Change Order will be issued.
If the Parties do not agree on all terms for performance or compensation of the change, City will issue a unilateral Time and Material Change Order.
7.4 DESIGN-BUILDER INITIATED CHANGE ORDER REQUEST
If the Design -Builder believes that instructions issued after the date of the Contract will result in increases to the Contract Price or Contract Time or the Design-Builder otherwise becomes aware of the need for or desirability of a Change in the Work, a Change Order Request (“COR”) may be submitted to the Engineer in writing, in a format acceptable to City, and must specify the reasons for such change, including relevant circumstances and impacts on the schedule. Design -Builder shall submit a Change Proposal concurrently with the COR. The Design-Builder may request additional compensation and/or time through a COR but not for instances that occurred more than five (5) calendar Days prior to the COR. Design -Builder’s failure to initiate a COR within such period shall be deemed a waiver of the right to adjustment of the Contract Price or the Contract Time for the alleged Change. Any COR that is approved by City will be incorporated a Change Notice, Change Order, or Time and Material Change Order. If the Engineer determines that the Work in question is not a Change, Engineer will issue a Work Directive, ordering the Design -Builder to proceed with the Work without delay. If the COR is denied but the Design- Builder believes that it does have merit, the Design -Builder may submit a claim in accordance with the procedures set forth herein.
7.5 CHANGE ORDER
7.5.1 Definition.
A Change Order is a written order implementing Changes in the Work for which adjustments to the Contract Price and Contract Time, if any, have been agreed upon by the Parties, prior to the issuance of the Change Order either in the context of a City- initiated Change Notice or a Design -Builder-initiated COR. A Change Order shall be issued by the Engineer and expressly indicates the intention to treat the items described therein as changes in the Work. A Change Order must be issued and signed by the Engineer before any work is started on the items covered by the order.
7.5.2 Determination of Costs.
The Contract Price may only be changed by a Change Order or a Time and Material Change Order. The value of any Work covered by a Change Order or of any claim for an increase or decrease in the Contract Price shall be determined in one of the following ways:
a. Lump Sum Method. Acceptable lump sum proposal from Design- Builder properly itemized and supported by sufficient substantiating data to permit evaluation. Es timates for lump sum proposals shall be limited to direct expenditures necessitated specifically by the subject extra work. In addition, the Design-Builder and Subcontractor will be paid a lump sum for overhead, profit, and bond.
Supervision of the extra work shall be included in the lump sum percentage for overhead. For added or omitted work by Subcontractors, the Design-Builder shall furnish to the City the Subcontractor's detailed estimate of the cost for labor, material, and equipment, including the markup by the Subcontractor for overhead and profit. Such estimate of cost shall be signed by the Subcontractor. The same requirement shall apply to any Sub-subcontractor or material supplier.
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b. Time and Material Method . Direct cost of the work for labor, material, and equipment rental plus markups for overhead and profit for General Design- Builder, Subcontractor, and Sub- subcontractors as applicable. (Supervision is to be included in markup unless specifically agreed to in advance that special supervision is required.)
7.5.3 Documentation.
For either method used, the Design- Builder shall submit the following information as required by the Engineer:
a. LABOR: Attach itemized direct hourly rates in accordance with certified payroll records times total hou rs expended.
Separately show dollar amount for employer -paid payroll taxes/insurance benefits.
Enter total as direct labor item. ____________
b. MATERIAL: Attach receipts, invoices or itemized
quantity and unit costs plus tax and delivery.
Enter total as material item. ____________
c. EQUIPMENT: Attach receipts, invoices or tear tickets indicating unit costs and total hours or loads charged. (Small tools with a value of less than $500.00 are to be included in markup.)
Enter total as equipment rental item. ____________
d. SUBTOTAL (Lines a + b + c) ____________
e. COMBINED MARKUP FOR ALL OVERHEAD AND
PROFIT SHALL BE BASED ON THE FOLLOWING:
(1) For the General Design-Builder, for
work performed by its forces,
fifteen percent (15%)
of its direct subtotal cost. ____________
(2) For the General Design-Builder, for
work performed by a Subcontractor's
forces, ten percent (10%) of the
direct subtotal cost due the Design-Builder. ___________
(3) For a Subcontractor or Sub-subcontractor , for work performed by their own forces, fifteen percent (15%)
of their own direct subtotal costs. ___________
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(4) For a Subcontractor, for work performed by a
Subcontractor, ten percent (10%) of the direct
subtotal cost due the Sub-subcontractor. ___________
f. SUBTOTAL (Lines d + e) ___________
g. GENERAL DESIGN-BUILDER'S BOND
(NTE 1% Line f) ___________
h. TOTAL CHANGE ORDER REQUEST
(Lines f + g) ____________
7.5.4 Final Agreement.
Agreement on any Change Order shall constitute a final settlement of all matters relating to the direct and indirect cost and time of performance of Change in the Work which is the subject of the Change Order including, but not limited to, all direct and indirect costs associated with such Change and any and all adjustments to the Contract Price and Contract Time. The execution of a Change Order constitutes a mutual accord and satisfaction of the compensation for the Change and Design- Builder specifically waives and release any and all claims, rights or interest, including but not limited to those for delay, impact, disruption, acceleration, loss of efficiency or other extraordinary or consequential costs arising directly or indirectly out of the Work described in the Change Order. There shall be no reservation of rights by either Party on a Change Order.
7.5.5 Extra work ordered on the basis of time and materials will be paid for at the actual necessary cost as determined by the Engineer, plus allowances for overhead and profit. The allowance for overhead and profit will include full compensation for superintendence, taxes, field office expense, extended overhead, home office overhead, and all other items of expense or cost not included in the cost of labor, materials, or equipment provided for under Paragraph 7.5. The allowance for overhead and profit will be made per provisions of Paragraph 7.5.
7.5.6 It is understood that labor, materials, and equipment for extra work may be furnished by the Design-Builder or by the Subcontractor of the Design- Builder. When all or any part of the extra work is performed by a Subcontractor, the allowance specified herein will be applied to the labor, materials, and equipment costs of the Subcontractor, to which the Design- Builder may add ten percent (10%) of the Subcontractor's total cost for the extra work. Regardless of the number of hierarchical tiers of Subcontractors, the ten percent (10%) increase above the Subcontractor's total cost which includes the allowances for overhead and profit specified herein may be applied one time only.
7.6 EXCLUDED COSTS
7.6.1 The term "cost of the work" shall not include any of the following:
Payroll costs and other compensation of Design- Builder's officers, executives, proprietors, partners, principals, general managers, engineers, Design -Builders, estimators, attorneys, auditors, accountants, purchasing and contracting agents, expediters, timekeepers, clerks, and other personnel employed by the Design-Builder whether at the Site or in the Design- Builder's principal or a branch offic e for general administration of the Work all of which are to be considered administrative costs covered by the Design- ATTACHMENT 2
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Builder's allowance for overhead and profit;
a. Expenses of the Design- Builder's principal and branch offices other than the Design- Builder's office at the Site;
b. Any part of Design-Builder's capital expenses, including interest on the Design-Builder's capital employed for the Work and charges against the Design- Builder for delinquent payments;
c. Cost of premiums for all Bonds and for all Insurance whether or not the Design-Builder is required by the Contract Documents to purchase and maintain the same (except as provided by Paragraph 7.5).
d. Costs due to the negligence of the Design-Builder, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including but not limited to, the correction of Defective Work, disposal of materials or equipment wrongly supplied, and making good any damage to property; and
e. Other overhead or general expense costs of any kind and the cost of any item not specifically and expressly included in Section Paragraph 7.5.
7.7 ALLOWABLE COST BASIS
For the purpose of evaluating and approving proposed Change Order costs, the City will use as its basis the latest edition of the Means Building Construction Cost Data Book Western Edition. No other cost data books or manuals will be considered. The maximum allowable cost for Change Orders resulting in additions to the Contract Price shall not exceed the cost of the work identified in the Means Cost Data Book, not including Design-Builder's overhead and profit, and bond as set forth in Section 20 D.
7.8 AUDIT RIGHTS
The Design-Builder shall afford, and shall cause its Subcontractors and Sub- Subcontractors to afford access to the City at all reasonable times, to any accounting books and records, correspondence, instructions, invoices, receipts, vouchers, memoranda and other records of any kind relating to the Work, all of which shall be maintained for a period of at least four (4) years from and after the Date of Substantial Completion. The Design-Builder and its Subcontractors and Sub-Subcontractors shall make the same available for inspection, copying and audit, in accordance with generally accepted accounting standards, within three (3) days following notification to the Design-Builder of the City's intent to audit, failing which any claims for an increase in the contract sum and/or extension of the contract time, as applicable, shall be waived.
7.9 DEDUCTION FROM WORK
The amount of credit to be allowed by the Design-Builder to the City for a deletion or change that results ATTACHMENT 2
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in a net decrease in the contract sum shall be actual net cost. When both additions and credits covering related work or substitutions are involved in a change, the allowance for overhead and profit shall be figured on the basis of net increase, if any, with respect to that change.
7.10 DESIGN-BUILDER AND SURETIES BOUND
Any changes or extra work hereunder shall be a part of and subject to all the provisions of the Contract and the Design- Builder, and its Sureties shall be bound thereby and to the same extent as under the original Contract.
7.11 TIME AND MATERIAL CHANGE ORDER (TMCO)
7.11.1 If it be impossible or impracticable to ascertain the total cost of changes in the Work to be done before such work is begun, or if no agreement can be reached on changes in the Work and additions to the Contract Price, then a TMCO shall be issued unilaterally by the Engineer instructing the Design- Builder to do the Work, indicating expressly and unmistakably the intention to treat the items as changes in the Work, setting forth the kind, character and limits of the Work as far as can be ascertained, the terms under which changes to the Contract Price will be determined and the estimated total change in Contract Price anticipated thereunder. The TMCO shall be fully executed by City. Such TMCO will become the basis for the Change Order when the amounts of adjustment to the Contract Price can be determined and the prior approval of the TMCO will be considered necessary authority within the limits of the estimated change in Contract Price. Without additional authority, no costs exceeding the estimated amount will be paid.
7.11.2 The Design-Builder shall maintain records sufficient to distinguish the direct cost of TMCO work from the cost of other operations. The Design- Builder shall furnish daily, on forms approved by City, reports of TMCO work. The reports shall itemize all costs for labor, materials, and equipment rental and give a total of costs to date for the Time & Material work. The reports shall include hours worked, rates of pay, names and classifications. The reports shall include equipment size, type, identification number, rental rate, and hours of operation. All records and reports shall be made immediately available to the Engineer upon request. The cost of furnishing such reports shall be included in Design-Builder's overhead and fee percentages.
7.11.3 All Time & Material reports shall be signed b y the Design- Builder or authorized representative, and witnessed by City’s inspector each and every work day. The Engineer will compare the Engineer's records with the Design- Builder's reports, make the necessary adjustments and compile the costs of Time & Material work. When such reports are agreed upon and signed by both Parties, they will become the basis of payment.
7.11.4 Construction Equipment compensation shall not be allowed while it is inoperative due to breakdown. Except as otherwise specified in thi s Subsection, time will be computed in half and full hours. In computing the time for use of Construction equipment, less than thirty-one (31) minutes shall be considered one-half hour. Costs for Construction equipment on standby shall be limited to the sum of the hourly overhead and depreciation rates for eight (8) hours per twenty- four (24) hour period, accrued after the construction equipment is idle for sixteen (16) hours in a twenty-four (24) hour period.
7.11.5 City may authorize and approve payment for necessary services and expenditures other than labor, materials, and equipment rentals.
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7.11.6 Materials, equipment rental and other costs shall be substantiated by vendors' invoices submitted with the current reports; or, if not then available, shall be submitted with subsequent reports.
If vendors' invoices are not submitted within 30 days after completion of the Time & Material work or if in the opinion of the Engineer the cost of materials is excessive, then the cost of such items shall be deemed to be the lowest current wholesale prices at which the items are available in the quantities required, delivered to the work site, less cash or trade discounts.
7.11.7 Labor costs, overhead and profit and Design-Builder's fee percentages shall conform to that specified in Subsection entitled Change Orders herein.
7.12 FORCE ACCOUNT WORK
If no agreement can be reached on Changes in the Work and adjustment of the Contract Price or Contract Time, or the Design- Builder refuses to accept a Change Notice, Change Order, or Tim e and Material Change Order, the City shall have the right to have the work in question done by Persons other than the Design-Builder.
8. TIME
8.1 EXTRAORDINARY MEASURES
8.1.1 In the event the City determines that the performance of the Work, as of a Milestone Date, has not progressed or reached the level of completion required by the Contract Documents, the City shall have the right to order the Design-Builder to take corrective measures necessary to expedite the progress of construction, including, without limitation, (1) working additional shifts or overtime, (2) supplying additional manpower, equipment, and facilities and (3) submitting a Recovery Schedule for re - sequencing performance of the Work or other similar measures (hereinafter referred to collectively as Extraordinary Measures). Such Extraordinary Measures shall continue until the progress of the Work complies with the stage of completion required by the Contract Documents. The City's right to require Extraordinary Measures is solely for the purpose of ensuring the Design- Builder's compliance with the Project Schedule.
1) The Design -Builder shall not be entitled to an adjustment in the Contract Sum in connection with the Extraordinary Measures required by the City under or pursuant to this Section.
2) The City may exercise the rights furnished the City under or pursuant to this Section as frequently as the City deems necessary to ensure that the Design- Builder's performance of the Work will comply with the Contract Time, any Milestone Date or completion date set forth in the Contract Documents.
8.1.2 If the Design -Builder's Project Schedule shows completion of the Work in advance of the Contract completion date, the Design-Builder agrees that in the event actual completion occurs, for any reason, after the completion date specified in the Design -Builder's Project Schedule but within the Contract completion date, the Design- Builder shall not be entitled to and waives any claim against the City for delay, disruption or impact costs or damages including, without limitation claims for extended general conditions, home-office overhead, job-site overhead and management or administrative costs.
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8.2 TIME EXTENSIONS
8.2.1 If the Critical Path is delayed at any time in the progress of the Work by the Non- Compensable Delays defined in the Agreement, and did not result from the acts of the Design-Builder, and provided further that the Design-Builder has taken reasonable precautions to prevent further delays owing to such causes, then the Contract Time shall be extended by Change Order. The Design-Builder agrees that the extension of time granted under this Section shall be its sole and exclusive remedy for the consequences of any delay described above.
8.2.2 Any claim for extension of time shall be made in writing to the City not more than ten (10) days after the commencement of the delay. Within thirty (30) days after such delay the Design-Builder shall furnish the City with detailed information concerning the circumstances of the delay, the number of days actually delayed, the appropriate Contract Document references, and the measures taken to prevent or minimize the delay. The Design-Builder acknowledges the extreme importance of promptly notifying and thoroughly documenting any request for time extension and further spe cifically acknowledges that the City will suffer extreme prejudice should Design- Builder fail in any way to comply with this requirement. Failure to comply with the procedures contained within this Section including the time limits established in this Sub -section (e) shall constitute a waiver of such request.
Evidence presented by the Design-Builder that the City had actual notice of the time extension request, that the City was not prejudiced by Design-Builder's failure to comply with this requirement, and/or that the City considered Design-Builder's request despite Design-Builder's failure to strictly comply with this provision shall not render this requirement unenforceable.
8.2.3 An extension of time will not be granted for a delay caused by a shortage of materials, except the City furnished materials, unless the Design-Builder furnishes to the City documented proof that the Design-Builder has made every effort to obtain such materials from every known source within reasonable reach of the Work. The Design -Builder shall also submit proof, in the form of network analysis data that the inability to obtain such materials when originally planned did, in fact, cause a delay in Final Completion of the Work which could not be compensated for by revising the sequenc e of operations. Only the physical shortage of material will be considered under these provisions as a cause for extension of time. No consideration will be given to any claim that material could not be obtained at a reasonable, practical, or economical cost, unless it is shown to the satisfaction of the Design-Builder that such material could have been obtained only at exorbitant prices, entirely inconsistent with current rates taking into account the quantities involved and the usual practices in obtaining such quantities and that such fact could not have been known or anticipated at the time the Contract was entered into.
8.2.4 No extension of time will be granted under this Section for any delay to the extent (1) that performance would have been so delayed by any Design- Builder induced causes, including, but not limited to, the fault or negligence of the Design -Builder or its Subcontractors; or (2) for which any remedies are provided for or excluded by any other provision of the Contract.
8.2.5 A Change Order will be issued to the Design-Builder within a reasonable period of time after approval of a request for extension of the Contract Time, specifying the number of days allowed, if any, and the new date or number of calendar days after the date of commencement for completion of the Work or specified portions of the Work.
8.2.6 An extension of time granted shall not release the Design- Builder's Surety from its ATTACHMENT 2
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obligations. Work shall continue and be carried on in accordance with all the provisions of the Contract and said Contract shall be and shall remain in full force and effect during the continuance and until Final Completion and Final Acceptance of the Work covered by the Contract unless formally suspended or annulled in accordance with the terms of the Contract.
8.2.7 Neither the grant of an extension of time beyond the date fixed for Substantial Completion of the Work, nor the performance and acceptance of any part of the Work or materials specified by the Contract after the time specified for Substantial Completion of the Work, shall be deemed to be a waiver by the City of the City's right to abrogate this Contract for abandonment or failure to complete within the time specified or to impose and deduct damages as may be provided.
9. PAYMENTS AND COMPLETION
9.1 PAYMENTS TO DESIGN-BUILDER
9.1.1 Before the first Application for Payment and within the time specified in the Agreement, the Design-Builder shall submit to City a detailed Schedule of Values, which shall be used as the basis for payment.
9.1.2 Within thirty (30) calen dar days of receipt of a full and complete Invoice for Payment, the City will make a partial payment upon the request of the Design- Builder on the basis of an approved estimate of the Work performed during the preceding calendar month under this Contract. The City will retain from such payments five percent (5%) of the amount of each estimate until thirty (30) days after Final Completion and acceptance by the City of all the Work covered by this Contract and recordation of a Notice of Completion in the Registrar/Recorder’s Office of the County of Los Angeles. No such estimate or partial payment shall be required to be made when in the judgment of the Engineer, the work is not proceeding in accordance with the provisions of the Contract, or when in his judgment, the total value of the Work done since the last estimate is less than Five Hundred Dollars ($500.00).
9.1.3 It is mutually agreed between the Parties hereto that the making of any payment to the Design- Builder under this Contract or any certificate given shall not relieve the Design-Builder of its guarantee obligations or responsibilities under this Contract, or full compliance with the Contract Documents, including the Plans, Drawings, and Specifications, or be construed as accepting any portion of the equipment, materials or work until the Contract is fully complete and formally accepted by the City.
9.1.4 The Design -Builder further agrees that the payment of the final amount due under the Contract, and the adjustment and payment for any extra work done and work in accordance with any changes of the same, shall release the City, its City Council and their officers, agents and employees from any and all claims or liability on account of the Work performed under the Contract, and any changes thereof, and any extra work.
9.1.5 Pursuant to Public Contracts Code Section 22300, the Design- Builder may substitute securities in place of retained funds withheld by the City or, in the alternative, request that the City make payment of retentions earned directly to an escrow agent at the expense of the Design-Builder.
9.2 APPLICATION FOR PAYMENT
In submitting each Application for Payment Design- Builder warrants that: title to all Work covered by ATTACHMENT 2
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each Application for Payment shall pass to the City no later than the time of payment. The Design- Builder further warrants that all Work covered by the previous Application for Payments is free and clear of liens, claims, security interest or other encumbrances.
9.2.1 Each Application for Payment shall:
1. Reference the Project;
2. Describe the services performed;
3. Include an estimate of the percentage of Work completed;
4. Show the total amount of the payment due;
5. Include a certification by a principal member of the Design -Builder's firm as Design-Builder and by the Design- Build Team Members identified in this Agreement, that the Work has been performed in accordance with the provisions of the Contract Documents;
6. Maintain and, upon request, include such documentation as may be necessary to substantiate the percentage of completion of Work;
7. Include duly completed and executed forms of Condit ional Waiver and Release in accordance with California Civil Code Section 3262 of all Persons eligible to file stop notices in connection with the Work covering the payment requested; and
8. Include duly completed and executed forms of Unconditional Waiver and Release, in accordance with California Civil Code Section 3262 of all Persons eligible to file stop notices in connection with the Work covering the payment received by Design-Builder for the previous Application for Payment.
9.3 PAYMENT
9.3.1 Upon submission of any such Application for Payment, if the City is satisfied that Design- Builder is making satisfactory progress toward completion of Work in accordance with this Agreement, City shall promptly approve the Application, in which event payment shall be made within thirty (30) days of receipt and approval of the Application by City. Such approval shall not be unreasonably withheld. If the City does not approve an Application for Payment, City shall notify Design- Builder in writing of the reasons for non-approval, within seven (7) calendar days of receipt of the Application.
Subject to verification of the value of Work completed, the City shall pay the Design- Builder for the percentage of Work completed through the period covered by the Application for Payment less 5% retainage.
9.3.2 City shall have the right, but not the obligation, to make payments jointly to Design-Builder and any of its Subcontractors or suppliers.
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9.4 SUBSTANTIAL COMPLETION
9.4.1 Substantial Completion is defined to mean the stage in the progress of the Work when, in the City's sole and reasonable discretion, the Work is sufficiently complete in accordance with the Contract Documents so that City can occupy or utilize the Work for its intended use and:
1. The performance guarantees and emission guarantees of the Work of the installed systems, in accordance with the Design Criteria and Technical Specifications have been achieved. If performance testing of the Work does not occur within a reasonable time as a result of factors beyond the control of Design- Builder, then Design-Builder may, upon ten (10) days ’ notice to City, request release of the payment otherwise due upon providing the City a letter of credit in a form approved by the City’s legal counsel's Office from a bank located in Los Angeles County in the amount of the sum released.
2. There are no stop notices or pending claims against construction funds or Design-Builder has provided release bonds or other adequate security to City to satisfy such claims;
3. All systems included in the Work are operational as designed and tested;
4. Design-Builder provides the Emission Control System Operation and Maintenance Manual;
5. All final finishes, fixtures and equipment required by the Contract Documents are in place;
6. Certifications from all Design-Build Team Members that the Work has been completed in accordance with the design and the Contract Documents.
7. Design-Builder has submitted to City a written certification that all remaining Work shall be completed within thirty (30) calendar days following the date of Substantial Completion and that reproducible as -built drawings will be completed and submitted to City within thirty (30) calendar days following the date of Substantial Completion.
9.4.2 When the Design -Builder c onsiders that the Work is Substantially Complete, as defined herein, the Design- Builder shall prepare and submit to the City a written request for issuance of a Certificate of Substantial Completion and a comprehensive list of items to be completed. The D esign- Builder shall proceed promptly to complete and correct the items. Upon receipt of the Design-Builder’s request for issuance of a Certificate of Substantial Completion, the City will make an inspection to determine whether Substantial Completion has occurred. The City may either reject the Design - Builder’s request for issuance of a Certificate of Substantial Completion or issue a Certificate of Substantial Completion with the punchlist items of Work to be completed or corrected (“Punchlist”) and fixing the time within which Design -Builder shall complete the Punchlist items and achieve Final Completion. Failure to include an item on the Design- Builder’s list does not alter the responsibility of the Design-Builder to complete all Work in accordance with the Contract Documents.
9.5 FINAL COMPLETION AND FINAL PAYMENT
9.5.1 The Design-Builder shall, upon completion of the Work and final clean up, submit to the ATTACHMENT 2
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Engineer, a sworn Affidavit of Final Completion, signed by Design- Builder and each of the Design- Build Team Members that to the best of the signatory’s knowledge and belief, the Work has been completed in strict accordance with the Contract Documents, that no lawful debts for labor or materials are outstanding, that all requests for funds for undisputed Work under the Contract, including changes in the Work, and under all billings of whatever nature are accurate, complete and final and that no additional compensation over and above the final payment will be requested or is due under the Contract or under any adjustment issued thereunder for said undisputed Work, and that upon receipt of final payment the Design-Builder will release City form all claims or liability for additional sums on account of undisputed Work. The City will inspect the Work and will either reject the request or accept the Work as evidenced by the recordation of a Notice of Completion.
9.5.2 Neither final payment nor any final release of retainage shall become due to Design-Builder until a maximum of sixty (60) days following completion of all punch list Work, issuance of a Final Certificate by the appropriate governmental agency, City’s recordation of a Notice of Completion and the Design-Builder submits to the City:
9.5.2.1 Completed and executed forms of unconditional waiver and release of rights from all Persons eligible to file stop notices in connection with the previous application for payment;
9.5.2.2 Completed and executed forms of unconditional waiver and release of rights upon final payment in accordance with California Civil Code Section 3262 from all Persons eligible to file stop notices in connection with the Work;
9.5.2.3 An affidavit that all payrolls, bills for materials and equipment and other indebtedness connected with the Work for which the City might in any way be responsible, have been paid or otherwise satisfied;
9.5.2.4 Consent of surety to final payment;
9.5.2.5 Data establishing payment or satisfaction of all obligation such as receipts, releases and waivers from all Persons legally eligible to file stop notices in connection with the Work;
9.5.2.6 Submittal of As-Built Drawings in reproducible format;
9.5.2.7 Submittal of warranties, operational and maintenance manuals and other submittals required by the Contract Documents;
9.5.2.8 Submission of Design-Builder's Waiver, removal of temporary facilities and services; and
9.5.2.9 Such other documentation as the City may reasonably require.
9.6 OWNER TO WITHHOLD PAYMENT
9.6.1 In addition to the amount which the City may otherwise retain under the Contract, the City may withhold a sufficient amount or amounts of any payment or payments otherwise due the Design - Builder, as in the judgment of Engineer may be necessary to cover:
9.6.1.1 Payment, which may be due, and payable for just claims against the Design- Builder or any Subcontractor for labor, materials or equipment in the performance of this Contract.
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9.6.1.2 For defective or noncomplying Work not remedied.
9.6.1.3 For failure of the Design-Builder to make proper payments to its Subcontractors.
9.6.2 Failure to withhold such amounts shall not affect any rights or obligations of the Design- Builder or Sureties under this Contract.
9.7 DISPUTED ITEMS
In the event of a dispute between City and Design -Builder, the City may withhold from final payment an amount not to exceed 150% of disputed items including all incomplete punch list items and those items necessary to file and record the Notice of Completion.
9.8 WAIVER OF CLAIMS
Acceptance of Final Payment by the Design -Builder shall constitute a waiver of affirmative claims by the Design-Builder, except those previously made in writing and identified as unsett led of the time of final payment.
10. PROTECTION OF PERSONS AND PROPERTY
10.1 SAFETY PRACTICES
10.1.1 The Design-Builder shall provide such lights, guards, temporary fences, barricades and the like, as may be necessary to prevent damage to the Work or injury to persons or property, and he shall also provide protection for adjoining property during the progress and until completion of the Work.
The Design-Builder shall abide by all applicable Safety Orders of the Division of Industrial Safety, State of California, and ordinances of the City, and shall schedule and perform its work to avoid any danger or hazard to other Design- Builders or workmen on the project, or its own men due to work being performed by others.
10.1.2 Weekly safety meetings with the Design-Builder's representatives, City representatives, and the State Industrial Safety Engineer, shall be held if, in the opinion of the Engineer, conditions on the project warrant such meetings.
10.1.3 Before the Notice to Proceed, the Design-Builder shall supply the City with Material Safety Data Sheets (MSDS) for all chemicals to be used in the performance of this Contract. The City will make available to the Design-Builder the MSDS of any products in use in the areas of Work covered by this Contract. All hazardous materials to be properly disposed of off-site.
10.1.4 The Design-Builder is fully responsible for the safe performance of all Work for which they are contractually committed, whether performed by themselves or by their Subcontractors. The Design- Builder must provide adequate protection for the health and safety of City employees, the general public and its own personnel. The Design-Builder must have in place its own Injury and Illness Prevention Program as required by Labor Code § 6401.7 and Title 8 § 1509 and § 3203 of the California Code of Regulations and shall sign the Contractor IIPP Certification Form at the time the Proposal was submitted.
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By signing, the Contractor has certified, under penalty of perjury, such a program is in place. California law also requires that the aforementioned program cover all the employees and personnel controlled, directed or supervised by the Contractor to the extent that they are exposed to worksite and job assignment specific hazards. In addition, the Contractor’s subcontractors shall provide a completed IIPP Certification Form to the Engineer prior to commencing their portion of the Work. At the request of the City, Contractor and/or Contractor’s subcontractors must submit their IIPP Program to City’s Safety Officer for review.
The program shall be written and shall include but not be limited to the following elements:
10.1.4.1 Identification of the Person or Persons responsible for implementing the Design-Builder's safety program. List name of the Design-Builder’s on-site Safety Representative.
10.1.4.2 The Design-Builder's system for identifying and evaluating workplace hazards including scheduled periodic inspections to identify unsafe conditions and work practices.
10.1.4.3 The Design-Builder's methods and procedures for correcting unsafe or unhealthy conditions and work practices in a timely manner. The Design- Builder shall correct unsafe and unhealthy conditions and work practices in a timely manner based on the severity of the hazard.
10.1.4.4 The Design-Builders occupational health and safety training program designed to instruct employees in general safe and healthy work practices and to provide specific instruction with respect to hazards specific to each employee's job assignment.
10.1.4.5 The Design-Builder's system for communicating with employees on occupational health and safety matters, including provisions designed to encourage employees to inform the Design- Builder of hazards at the worksite without fear of reprisal.
10.1.4.6 The Design -Builder's system for ensuring that employees comply with safe and healthy work practices, which may include disciplinary action.
10.1.4.7 The Design-Builder shall keep appropriate records of steps taken to implement and maintain the program such as inspection and training documentation. Contract shall include inspection checklist and training documentation form.
10.1.4.8 The Design -Builder shall include procedures to investigate occupational injury or occupational illness.
10.1.4.9 For Construction projects the Design- Builder shall adopt a written code of safe practices which relates to the employers operations. Tailgate meetings shall be held at least every ten (10) working days with employees/crews.
11. BONDS AND INSURANCE
11.1 BONDS
11.1.1 General. The Design- Builder shall promptly furnish, at its own cost and expense, the requisite Faithful Performance and Payment Bonds with a responsible Corporate Surety authorized to ATTACHMENT 2
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issue such bonds in California on the bond forms provided by the City, and subject to approval of the City’s legal counsel. The bonds shall be executed by a California admitted surety with the Best's Insurance Guide rating satisfactory to the City. If a Best's Insurance Guide rating is not available, the proposed Surety must meet comparable standards of another rating service satisfactorily to the City.
Bonds issued by a 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 the City. Bonds from sureties not listed in Treasury Circular 570 must be accompanied by all of the documents enumerated in California Code of Civil Procedure Section 995.660(a). Every Bond must display the Surety's bond number and incorporate the Contract by reference. The terms of the Bonds shall provide that the Surety agrees that no change, extension of time, alteration or modification of the Contract Documents or the Work to be performed thereunder shall in anyway affect its obligations and shall waive notice of any such change, extension of time, alteration or modification of the Contract Documents. The form and content of each bond shall be subject to review and approval by the Engineer and City’s legal counsel.
11.1.2 Faithful Performance Bond. The Faithful Performance Bond shall be in the sum of not less than one hundred percent (100%) of the maximum amount of the Contract Price. The bond shall be furnished as a guaranty of the faithful performance of all covenants, terms, conditions and stipulations contained in the Contract Documents including, but not limited to, the covenants that all materials used and workmanship employed in the performance of the Contract shall be free from defects, and that should any defects therein appear within a period of one (1) year from the date of acceptance by the City, the Design-Builder shall, at its own cost and expense, repair, replace and correct such defects to the satisfaction of the Engineer within thirty (30) days after notice thereof by the City.
11.1.3 Payment Bond. The Design-Builder to whom the contract is awarded shall, in addition to the Faithful Performance Bond, furnish a Payment Bond in the sum of not less than one hundred percent (100%) of the maximum amount of the Contract Price and shall be conditioned and provide that if the Design-Builder or its Subcontractors, fails to pay for any materials, transportation, appliances, or utilities used in, upon, for or about the performance of the work contracted to be done, or for any work or labor thereon of any kind, or for amounts due under the Unemployment Insurance Act with respect to such work or labor, said Surety will pay the same in an amount not exceeding the sum set for above, and also in case suit is brought upon this bond a reasonable attorney's fee to be fixed by the Court.
11.1.4 Maintenance Bond. The Design -Builder to whom the contract is awarded shall furnish a Maintenance Bond in the sum of not less than one hundred (100%) of the maximum amount of the Service Agreement . Bond shall be executed in conformance with Section 11.1.1. of the General Conditions. See Exhibit D for the Maintenance Bond form.
11.2 INSURANCE – GENERAL REQUIREMENTS
Prior to execution of the contract, the Design- Builder shall furnish the City evidence of coverage from insurers acceptable to the City and in a form acceptable to the City. Such insurance shall be maintained by the Design-Builder at the Design-Builder's sole cost and expense. Coverage to be maintained through the Notice of Completion plus one (1) additional year. Unless otherwise approved by the City, Design- Builder’s insurance shall be written by insurers authorized to do business in the State of California and with a minimum “Best's” Insurance Guide rating of “A -.” Self -insurance will not be considered to comply with these insurance specifications.
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In the event any policy of insurance required under this Agreement does not comply with these requirements or is canceled and not replaced, the City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by the City will be promptly reimbursed by the Design-Builder.
Such insurance shall not limit or qualify the liabilities and obligations of the Design -Builder assumed under the contract. The City shall not by reason of its inclusion under these policies incur liability to the insurance carrier for payment of premium for these policies.
Any insurance carried by City which may be applicable shall be deemed to be excess insurance and the Design-Builder's insurance is primary for all purposes despite any conflicting provision in the Design- Builder's policies to the contrary.
Said evidence of insurance shall contain a provision that the policy cannot be canceled or reduced in coverage or amount without first giving 30 calendar days' notice thereof (10 days for non-payment of premium) by registered mail to City’s Purchasing Division, at City of Burbank, 301 E. Olive Avenue – Suite 305, Burbank, CA 91502.
Should any portion of the required insurance be on a "Claims Made" policy, the Design-Builder shall, at the policy expiration date following completion of Work, provide evidence that the "Claims Made" policy has been renewed or replaced with the same limits, terms and conditions of the expiring policy, or that an extended discovery period has been purchased on the expiring policy at least for the contract under which the Work was performed.
Failure to maintain and provide acceptable evidence of the required insurance for the required period of coverage shall constitute a breach of co ntract, upon which the City may immediately terminate or suspend the agreement.
Design-Builder shall be responsible for all Subcontractors’ compliance with the insurance requirements.
11.3 WORKERS COMPENSATION/EMPLOYER’S LIABILITY INSURANCE
The Design-Builder shall provide Workers' Compensation insurance covering all of the Design-Builder's employees in accordance with the laws of any state in which the Work is to be performed and including Employer's Liability insurance and a Waiver of Subrogation in favor of the City. The limit for Employer's Liability coverage shall be not less than $1,000,000.00 each accident and shall be a separate policy if not included with Workers' Compensation coverage. Evidence of such insurance shall be in the form of a Certificate of insurance or a Certified True and Correct copy of the entire original policy acceptable to the City’s legal counsel. Workers' Compensation/Employer's Liability exposure may be self -insured provided that the City is furnished with a copy of the certificate issued by the state authorizing the Design-Builder to self-insure. Design-Builder shall notify the Purchasing Division by receipted delivery as soon as possible of the state withdrawing authority to self -insure. The policy shall be endors ed to waive all rights of recovery against the City, members of the City Council, and officers, employees and agents of the City.
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11.4 COMMERCIAL GENERAL/PUBLIC LIABILITY INSURANCE
The Design-Builder shall provide Commercial General Liability insurance with Contractual Liability, Independent Contractors, Broad Form Property Damage, Premises and Operations, Collapse/Underground Hazard, Products and Completed Operations, and Personal Injury coverages included. Such insurance shall provide coverage for total limits actually arranged by the Design-Builder, but not less than $2,000,000.00 per occurrence and an aggregate limit not be less than $5,000,000.
Coverage to be written on form CG 00 01 or an equivalent and should be project specific. Policy should be endorsed or have language to make it primary and non -contributory and shall include a waiver of subrogation in favor of the City. Umbrella or Excess Liability coverages may be used to supplement primary coverages to meet the required limits. Evidence of s uch coverage shall be on the City's Additional Insured Endorsement form or a Certified True and Correct copy of the entire original policy acceptable to the City’s legal counsel, and shall provide for the following:
1) Include City and its Council, officers, agents and employees as additional insureds with the Named Insured for the activities and operations under Bid Schedule No. 1505.
Additional Insured Endorsement to be on an ISO form CG 20 10 11 85, or an ISO form CG 20 10 04 13 (or a substitute form providing equivalent coverage as approved by the City) and an ISO form CG 20 37 04 13 (or a substitute form providing equivalent coverage as approved by the City).
2) Severability-of-Interest or Cross -Liability Clause such as: "The policy to which this endorsement is attached shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the company's liability."
3) A description of the coverages included under the policy.
11.5 COMPREHENSIVE AUTOMOBILE LIABILITY INSURANCE COVERAGE
The Design -Builder shall provide Commercial Automobile Liability insurance which shall include coverage’s for liability arising out of the use of owned, non-owned, and hired vehicles for performance of the Work as required to be licensed under the California or any other applicable state vehicle code.
The Commercial Automobile Liability insurance shall have not less than $1,000,000.00 combined single limit per occurrence and shall apply to all operations of the Design-Builder.
The Commercial Automobile Liability policy shall name the City and its Council, officers, agents and employees while acting within the scope of their employment, as additional insureds with the Design- Builder, and shall insure against liability for death, bodily injury, or property damage resulting from the performance of this Agreement. The form of evidence of insurance shall be a Certificate of Insurance acceptable to the City or a Certified True and Correct copy of the entire original policy acceptable to the City. The Additional Insured Endorsement is to be on an ISO form CG 20 10 11 85, or an ISO form CG 20 10 04 13 (or a substitute form providing equivalent coverage as approved by the City) and an ISO form CG 20 37 04 13 (or a substitute form providing equivalent coverage as approved by the City).
The policy shall also be endorsed to include Transportation Pollution Liability insurance, covering materials to be transported by the Design-Builder pursuant to this contract. This coverage may also be provided on the Contractors’ Pollution Liability policy. In addition, the MCS -90 and CA 99 48 endorsements are required for hazardous materials/waste transporters.
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The policy shall also be endorsed to provide a waiver of subrogation, in favor of the City.
11.6 PROFESSIONAL LIABILITY INSURANCE
The Design-Builder shall provide Professional Liability insurance covering liability arising from errors and omissions made during the executing of this Contract for the total limits actually arranged by the Design-Builder, but not less than $2,000,000.00, per occurrence. The coverage shall include Contractual Liability, and should the policy be of a claims -made form, such policy shall be maintained for not less than five (5) years after the date of final acceptance of completion of all Work perf ormed under this agreement. Evidence of such insurance shall be in the form of a Certificate of Insurance or a Certified True and Correct copy of the entire original policy acceptable to the City.
11.7 CONTRACTORS’ POLLUTION LIABILITY INSURANCE
The Design-Builder shall provide Contractors’ Pollution Legal Liability, not excluding asbestos and/or lead with limits no less than $2,000,000 combined single limit, per occurrence, and $5,000,000 aggregate. Policy should be endorsement or have language to make it primary and non -contributory.
Policy shall include a waiver of subrogation, in favor of the City. Coverage may be included in the Commercial General/Public Liability Insurance policy. Evidence of such coverage shall be on the City's Additional Insured Endorsement form or a Certified True and Correct copy of the entire original policy acceptable to the City’s legal counsel, and shall provide for the following:
1) Include City and its Council, officers, agents and employees as additional insureds with the Named Insured for the activities and operations under Bid Schedule No. 1505.
Additional Insured Endorsement to be on an ISO form CG 20 10 11 85, or an ISO form CG 20 10 04 13 (or a substitute form providing equivalent coverage as approved by the City) and an ISO form CG 20 37 04 13 (or a substitute form providing equivalent coverage as approved by the City).
2) Severability-of-Interest or Cross -Liability Clause such as: "The policy to which this endorsement is attached shall apply separately to each insu red against whom a claim is made or suit is brought, except with respect to the limits of the company's liability."
3) A description of the coverages included under the policy.
11.8 BUILDER’S RISK/COURSE OF CONSTRUCTION INSURANCE
The Design-Builder shall maintain commercial property and boiler & machinery insurance covering equipment, improvements and betterments to full replacement cost.
11.8.1 Property and boiler & machinery shall be insured on a blanket all risk basis, but not the peril of earthquake shock. Any self-insured retention in the policy(s) shall be subject to review and approval by the City.
11.8.2 Property and boiler & machinery insurance shall be extended, if not already provided in the policy form(s), to cover all underground property.
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11.8.3 Property and boiler & machinery insurance shall be extended, if not already provided in the policy form, to include resultant damage to insured property from error in design, faulty workmanship or faulty materials. In addition, coverage shall include joint loss, demolition coverage, increased cost of construction, contingent liability from operation of building laws, extra expense, and expediting expense.
11.8.4 Comprehensive boiler & machinery shall include, but not be limited to, increased cost of construction, hazardous materials, water damage, expediting expense, business income, business interruption, joint loss clause, replacement cost and replacement cost valuation, demolition, increased cost of construction, and services interruption.
11.8.5 All deductibles will be the responsibility of the Design-Builder and will not exceed $10,000 per occurrence.
11.8.6 The insurance policies shall reflect that the Carrier herby waives any recovery of damages against the City, and its employees, officers, directors, agents or representatives, for loss or damage to the improvements, betterments, equipment and any other personal property to the extent covered by the commercial property insurance or boiler and machinery insurance required above.
11.8.7 The City shall be included as an insured and loss payee under the commercial property and boiler & machinery insurance.
11.9 RESPONSIBILITY FOR DAMAGE AND THEFT
The Design-Builder may insure the equipment, materials and Work to cover Design-Builder's interest in the same from time to time, as required. The City will not, under any circumstances, be liable, answerable or accountable for any theft, loss or damage, however and by whatever cause, to said equipment, materials and Work, or any part or parts thereof, used or employed in fully completing the Contract, until after the contract is completed and formal acceptance of the Work by the City.
12. QUALITY AND CORRECTION OF WORK
12.1 QUALITY OF WORK AND MATERIAL
12.1.1 All Work must be done and completed in a thorough, workmanlike manner by mechanics skilled in their various trades, notwithstanding any error or omission in the Contract Documents, and all parts shall be made accurately to standard gauge so that renewals and repairs may be made when necessary with the least possible expense. All materials employed shall be new and homogenous and of high quality throughout. Any forgings and castings shall be free from flaws and imperfections, the determination of which shall follow the latest and most improved practice. All Work must be in accordance with the Contract Documents and shall be made to conform thereto. Any material specified by reference to the number, symbol or title of a standard such as ASTM shall comply with the requirements of the latest revisions thereof or any supplement or amendment thereto except where a different edition is specified. The referenced standards shall have the same force and effect as if they were printed in full in the Contract Documents. If the Design-Builder wishes to use codes or standards not specified in the Contract Documents, Design-Builder shall submit for approval sufficient information to the City to determine equivalency. The Design- Builder shall be held to guarantee all material, apparatus, and equipment, to fulfill all requirements and special guarantees set forth in the Specifications.
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12.1.2 Should the test of any material, apparatus, or equipment show that it does not meet the guarantees or requirements of the Contract Documents, the Design- Builder shall at once proceed to furnish such new parts as may be necessary to bring it up to requirements. All expenses of furnishing new parts, or alteration to existing parts, and of tests made necessary by such failure to meet the guarantees and other requirements of the Specifications, shall be at the expense of the Design-Builder.
12.2 UNCOVERING OF WORK
12.2.1 If a portion of the Work is covered contrary to the Engineer’s request or to requirements specifically expressed in the Contract Documents, it must, if required in writing by the Engineer, be uncovered for the Engineer’s observation and be replaced at the Design -Builder’s expense without change in the Contract Time.
12.2.2 If a portion of the Work has been covered which the Engineer has not specifically requested to observe prior to its ’ being covered, the Engineer may request to see such Work and it shall be uncovered by the Design-Builder. If such Work is in accordance with the Contract Documents, cost of uncovering and replacement shall, by appropriate Change Order, be at the City’s expense. If such Work is not in accordance with the Contract Documents, correction shall be at the Design -Builder’s expense unless the condition was caused by the City or a separate Design- Builder in which event the City shall be responsible for payment of such costs.
12.3 CORRECTION OF WORK
12.3.1 Before Substantial Completion.
The Design-Builder shall promptly correct Work rejected by the Engineer or failing to conform to the requirements of the Contract Documents, whether discovered before or after Substantial Completion and whether or not fabricated, installed or completed. Costs of correcting such rejected Work, including additional testing and inspections and compensation for the Engineer’s services and expenses made necessary thereby shall be at the Design-Builder’s expense.
12.3.2 After Substantial Completion.
12.3.2.1 In addition to the Design-Builder’s warranty obligations under the Agreement if, within one (1) year, after the date of Substantial Completion of the Work or designated portion thereof after the date for commencement of an applicable special warranty required by the Contract Documents any of the Work is found to be not in accordance with the requirements of the Contract Documents, the Design- Builder shall repair or replace it promptly after receipt of written notice from the City to do so unless the City has previously given the Design- Builder a written acceptance of such condition. The City shall give such notice promptly after discovery of the condition.
12.3.2.2 The Design -Builder shall bear the cost of correcting destroyed or damaged construction, whether completed or partially completed, of the City or separate Design-Builders caused by the Design- Builder’s correction or removal of Work which is not in accordance with the requirements of the Contract Documents. If the Design -Builder has to remove the equipment for repair or replacement; removal, transportation, and reinstallation costs are included.
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12.3.2.3 Nothing contained in Paragraph 8.2 shall be construed to establish a period of limitation with respect to other obligations which the Desi gn-Builder might have under the Contract Documents.
Establishment of the one (1) year warranty period for correction of Work relates only to the specific obligation of the Design-Builder to correct the Work, and has no relationship to the time within whic h the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Design-Builder’s liability with respect to the Design-Builder’s obligations other than specifically to correct the Work. Warranty provisions are to include coverage of any associated transportation or delivery costs.
13. MISCELLANEOUS PROVISIONS
13.1 GOVERNING LAW
13.1.1 The terms of the Contract Documents shall be interpreted according to the laws of the State of California. Should litigation occur, the venue shall be in the Superior Court of Los Angeles County.
13.2 SUCCESSORS AND ASSIGNS
13.2.1 The Contract Documents shall be binding upon and inure to the benefit of the City and Design-Builder and their successors and assigns.
13.2.2 This Contract, nor any part thereof, shall not be assigned, hypothecated, sold, alienated or transferred by the Design-Builder or by operation of law or otherwise, and will not be recognized or create any liability of the City thereby, with the sole exception and unless the prior formal approval of the City has been obtained thereto and the Surety has consented thereto in writing filed with the City.
13.3 NO PERSONAL LIABILITY
13.3.1 No member of the City’s governing body or other officer, employee or agent of the City or their consultants shall be personally responsible for any liability arising under or by virtue of the Contract.
13.4 INTERFERENCE
13.4.1 The Design -Builder shall employ, insofar as possible, such methods and means in the performance of the Work as will cause the minimum of interruption to public utilities, or interference with the Work of the City or any other Design- Builder, or the activities of others whose property may be used by the Design-Builder.
13.5 CLEAN PREMISES
The Design-Builder shall leave all glass, plumbing fixtures, equipment, tile, paint and premises in clean, perfect and undamaged condition; all buildings, structures, and pavements used by Design- Builder shall be left broom clean and all debris shall be removed and disposed of by Design-Builder, and all Design-Builder's tools and equipment shall be removed from the premises, before acceptance of the Work by the City.
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13.6 TELEPHONE
If the Design-Builder requires a telephone, he shall make all necessary arrangements and pay therefore; it shall be maintained in some convenient location as directed by the Engineer until Work is completed.
13.7 SANITARY FACILITIES
The Design-Builder shall provide adequate sanitary facilities for all construction personnel at the job site in a location approved by Engineer, and maintain the same in a clean and sanitary condition and also provide for the remova l and disposal of all garbage, excrement and waste matter from said premises to the satisfaction of the Engineer.
13.8 ADVERTISING
No advertising of any kind or description, bill posters, printed, painted or by the use of any other method or application legible to human sight, shall appear on any buildings, structures, fences, canopies, posts or signs except valid and authorized legal notices required to be placed thereon, without prior written permission of the City’s Engineer.
13.9 COVID-19 VACCINATION
Consultant shall comply with the “City of Burbank Executive Order Mandating COVID-19 Vaccination for Contractors” (“Order”), attached and incorporated herein, while the Order remains in effect. Consultant shall complete the Attestation of Contractor Compliance as required by the Order and return such attestation to the City prior to performing any service under this Agreement.
14. TERMINATION OR SUSPENSION OF THE CONTRACT
14.1 TERMINATION FOR DEFAULT
14.1.1 If the Design-Builder refuses or fails to commence or prosecute the Work, or any separate part thereof, or with such diligence as will insure its completion within the time specified in this Contract and any authorized extension thereof, fails to perform the Work in strict accordance with the Contract Documents, fails to use an adequate number of skilled workers, fails to make prompt payment to Subcontractors or for material or labor, fails to install Work that is free of defects, or disregards Applicable Laws, th e City may serve written notice upon Design- Builder and its Surety of the City’s intention to terminate the Work to be performed under this Contract, such notice to contain the reasons for such intention, and unless within ten (10) days after the serving of such notice, such violation shall cease and arrangements satisfactory to the Engineer for the correction thereof be made, upon the expiration of said ten (10) days Design- Builder shall be determined to be in default, and further work thereunder by the Design-Builder shall immediately cease and terminate.
14.1.2 It is recognized that in the event a voluntary or involuntary petition in bankruptcy is filed by or against the Design- Builder, or if the Design- Builder signs or makes a general assignment for the benefit of creditors, or if an application or other procedure for appointment of a receiver for the Design- Builder or its business is favorably ruled upon by competent authority providing for such appointment ATTACHMENT 2
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of a receiver, such events could impair or frustrate Design -Builder’s performance of the Work.
Accordingly, it is agreed that upon the occurrence of any such event, the City shall be entitled to request of Design-Builder, or its successor in interest, adequate assurance of future performance in accordance with the Contract Documents. Design-Builder’s failure to comply with the City’s request for adequate assurances within ten (10) calendar days of the request shall entitle the City to terminate the Design- Builder for default.
14.1.3 In the event of any such termi nation as provided in paragraphs (a) and (b) above, legal title to all equipment, materials, and supplies, whether or not incorporated or installed in the Work to be done hereunder, and all construction or installations and Work done shall immediately vest in and pass to the City, and the City may take charge of the Work and complete all the Work to be furnished and done under this Contract in any manner considered to be for the best interest of the City. In completing this Contract, the City may take possession of and use any or all of the materials and supplies in the discretion of the City, for which the Design-Builder has a valid agreement with the supplier. The City may procure other materials, equipment, supplies and provide the necessary labor for the completion of the Work, or enter into a Contract therefore, and charge all the cost and expenses to fully complete the Contract to the Design-Builder. In the event such cost and expense to fully complete the Contract shall exceed the amount which would have been due the Design- Builder under the Contract had it been completed by him, any such excess cost and expense shall be due and paid to the City by the Design- Builder and its Surety. If Design-Builder or its Surety fails to pay such amount immediately upon the City’s demand, then the City shall be entitled to collect interest from the date of said demand.
14.1.4 In lieu of entering the provisions of this section for termination for fault, the City may pay the Design-Builder for portions of Work already completed and treat the unperformed work as if it had never been included in the Contract. If this provision is invoked by the City, Design-Builder shall have no claim for prospective profits on Work not performed.
14.1.5 Upon a determination by a court of competent jurisdiction that any default termination of Design-Builder, or its successor in interest was wrongful, such termination will be deemed to be converted to a termination for convenience pursuant to the provisions of this Subsection and Design- Builder's remedy for wrongful termination in such event shall be limited to the recovery of the payments permitted for termination for convenience as set forth herein.
14.1.6 The provisions of this subsection shall be non-exclusive, and shall be in addition to all other rights and remedies available to the City under law or in equity.
14.2 TERMINATION FOR CONVENIENCE
14.1.1 City reserves the right to terminate Design -Builder’s performance, without regard to cause or fault or breach of Design-Builder, upon issuance of a written Notice of Termination for Convenience, effective immediately unless otherwise provided in said Notice of Termination.
14.1.2 The amount to be paid to the Design- Builder by City in the event of termination for Convenience shall consist solely of:
14.1.2.1 The cost of Wo rk completed in accordance with the Contract Documents up to the date of issuance of the Notice of Termination; and
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14.1.2.2 The Design -Builder's reasonable costs of demobilization for a period of thirty (30) days following the effective date of the Notice of Term ination, including costs of the Design-Builder's personnel reasonably required to effectuate the cancellation, and such storage, transportation, and other costs incurred which are reasonably necessary for the preservation, protection or disposition of the Work.
14.1.3 In no event shall the City be responsible for and Design-Builder hereby waives any claim for overhead or anticipated profits on unperformed work or other economic loss upon termination for convenience.
14.3 SUSPENSION BY OWNER FOR CONVENIENCE
The City may, without cause, 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 performance of the Work, an adjustment to the Contract 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 Work, an adjustment to the Contract Time shall be made.
15. LABOR CODE REQUIREMENTS AND PREVAILING WAGE RATES
15.1 In accordance with the provisions of Division 2, Part 7, Chapter 1 of the Labor Code, the general prevailing rates of per diem wages fo r each craft, classification and type of work needed to execute this Project have been determined by the Director of the California Department of Industrial Relations. The Design-Builder and each Subcontractor shall pay all workers not less than the prevailing wage rates as determined by the Director of Industrial Relations in accordance with the provisions of the Labor Code. As provided in Labor Code Section 1775 the Design- Builder shall forfeit, as a penalty to the City, not more than two hundred dollar s ($200) for each calendar day or portion thereof, for each workman paid less than the stipulated prevailing wage rate for such work or craft in which such workman is employed for any work done pursuant to the Contract Documents by Design- Builder or by any Subcontractor in violation of the provisions of the Labor Code and in particular, Labor Code Section 1770 to 1780, inclusive. In addition to said penalty and pursuant to said Section 1775, the difference between such stipulated prevailing wage rates and the amount paid to each workman was paid less than the stipulated prevailing wage rates shall be paid to each workman by Design-Builder.
15.1.1 Design-Builder shall strictly adhere to the provisions of the Labor Code, including Sections 1810 through 1813 and 1815, regarding minimum wages, the 8- hour day and 40-hour week, overtime, Saturday, Sunday, and holiday work. Design-Builder shall forfeit to the City the penalties prescribed in the Labor Code for noncompliance, including the penalties set forth in Section 1813 for violations of Sections 1810 through 1815.
15.1.2 Design-Builder shall comply with the provisions of Labor Code, Sections 1777.5 and 1777.6, and Title 8, Code of Regulations, Sections 200 et seq ., relating to apprentice employment and training.
Design-Builder shall assume full responsibility for compliance with said sections with respect to all apprenticeable occupations upon the project. To ensure compliance and complete understanding of the law regarding apprentices, and specifically the required ratio thereunder, Design-Builder should, where some question exists, contact the Division of Apprenticeship Standards, 455 Golden Gate Avenue, San Francisco, CA 94102, or one of its branch offices, prior to commencement of the Work. In the event of noncompliance by Design-Builder, City shall withhold the penalties provided for under Section 1777.7 of the Labor Code from progress payments then due.
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15.1.3 Pursuant to the requirements of Section 1860 of the Labor Code, Design- Builder will be required to secure the payment of Workers’ Compensation to its employees in accordance with the provisions of Section 3700 of the Labor Code.
15.1.4 Pursuant to Section 1861 of the Labor Code, Design-Builder is obligated to sign and file with the City a certification in the form included in the Proposal Letter.. Execution of this Contract by Design- Builder shall constitute signing and filing of the certificate.
15.1.5 Design-Builder shall comply with the applicable provisions of the Labor Code and implementing regulations relating to Labor Nondiscrimination, including those more specifically set forth in the Proposal Letter.
15.2 Pursuant to the provisions of Section 1770 of the Labor Code of the State of California, the Director of the Department of Industrial Relations has ascertained the general prevailing rate of wages (which rate includes employer payments for health and welfare, vacation, pensions and similar purposes) applicable to the work to be done, for straight time, overtime, Saturday, Sunday and holiday work.
Copies of the prevailing wage rate determinations of the Director of the Department of Industrial Relations are on file in the office of the Purchasing Manager at 301 East Olive Avenue – Suite 305, Burbank, California 91502 or online at www.dir.ca.gov. The Design-Builder shall obtain a copy of said determination and post it in a conspicuous place on the job site.
15.3 The City will not recognize any claim for additional compensation because of the payment by the Design-Builder of any wage rate in excess of the prevailing wage set forth in the Contract. The possibility of wage increases is one of the elements to be considered by the Design- Builder in determining its bid, and will not under any circumstances be considered as the basis of a claim against the City on the Contract.
15.4 The Design-Builder shall maintain accurate payroll records in accordance with the provisions of Labor Code Section 1776 and shall, upon request, file said records with the City.
15.5 The Design-Builder shall forfeit as a penalty to the City Twenty Five Dollars ($25) for each worker employed in the execution of the Work by the Design- Builder or any Subcontractor for each calendar day during which such workman is required or permitted to work more than eight (8) hours in any one calendar day and forty (40) hours in any one calendar week, in violation of the provisions of the Labor Code and, in particular, Section 1810 to Section 1815 thereof, inclusive, except that work performed by the employees of Design-Builder or Subcontractor in excess of eight (8) hours per day and forty (40) hours during any one week shall be permitted upon compensation of all hours worked in excess of eight (8) hours per day at not less than one and one-half times the basic rate of pay as provided in said Section 1815.
15.6 The Design-Builder shall pay to all workmen needed to execute the Contract all travel and subsistence payments defined in the applicable collective bargaining agreements filed in accordance with Section 1773.8 of the Labor Code of the State of California.
15.7 The Design-Builder and any Subcontractor under him shall comply with the requirements of Section 1777.5 and 1777.6 in the employment of apprentices.
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15.8 Information relative to apprenticeship standards, wage schedules, and other requirements may be obtained from the Director of Industrial Relations, Office of the Administrator of Apprenticeship, San Francisco, California, or from the Division of Apprenticeship Standards and its branch offices.
15.9 Pursuant to Section 7103.5 of the Public Contract Code:
“(b) In entering into a public works contract or a subcontract to supply goods, services or materials pursuant to a public works contract, the contractor or subcontractor offers and agrees to assign to the awarding body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 W.S.C. Sec 15) or under the Cartwright Act (Chapter 2 [commencing with Section 16700] of Part 2 of Division 7 of the Business and professions Code), arising from purchases of goods, services, or materials pursuant to the public works contractor or the subcontract. The assignment shall be made and become effective at the time the awarding body tenders final payment to the contractor, without further acknowledgement by the parties.”
END OF GENERAL CONDITIONS
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EXHIBIT K – CITY OF BURBANK COVID-19 MANDATE FOR CONTRACTORS
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