City of Burbank Progressive Design Build Agreement, RFP 1511 Page 1
City of Burbank
P
rogressive Design-Build Agreement
This AGREEMENT is made as of the day of in the year of 20 , by and between the following parties, for services in connection with the Project identified below:
OWNER: City of Burbank
(Name and address)
[Insert Address]
DESIGN-BUILDER:
(Name and address)
PROJECT:
(Include Project name and location as it will appear in the Contract Documents) I
n consideration of the mutual covenants and obligations contained herein, Owner and Design- Builder agree as set forth herein.
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511
Article 1
General
1.1 Duty to Cooperate. Owner and Design-Builder commit at all times to cooperate fully with each other, and proceed on the basis of trust and good faith to permit each party to realize the benefits afforded under this Agreement.
1.2 D efinitions. Attachment 1 to this Agreement sets forth the definitions for defined terms in this Agreement; provided, any terms, words and phrases used in this Agreement that are not otherwise defined shall have the meanings given them in DBIA Document No. 535, Standard Form of General Conditions of Contract Between Owner and Design-Builder (2010 Edition) ("General Conditions of Contract").
1.3 D esign Services. Design- Builder shall, consistent with applicable state licensing laws, provide design services, including architectural, engineering , and other design professional services required by this Agreement. Such design services shall be provided through qualified, licensed design professionals who are either (i) employed by Design- Builder, or (ii) procured by Design- Builder from independent sources. Nothing in this Agreement is intended to create any legal or contractual relationship between Owner and any independent design professional.
Article 2
Design-Builder's Services and Responsibilities
2.1 General Services.
2.1.1 Owner shall provide Design- Builder with Owner's Project Criteria describing Owner's program requirements and objectives for the Project as set forth in Exhibit A. Owner's Project Criteria shall include Owner's use, space, price, time, site, performance, and expandability requirements. Owner's Project Criteria may include conceptual documents, design specifications, design performance specifications, and other technical materials and requirements prepared by or for Owner.
2.1.2 If Owner's Project Criteria have not been developed prior to the execution of this Agreement, Design-Builder will assist Owner in developing Owner's Project Criteria, with such service deemed to be an additional service for which additional compensation shall be paid by Owner to Design-Builder. If Owner has developed Owner's Project Criteria prior to executing this Agreement, Design-Builder shall review and prepare a written evaluation of such criteria, including recommendations to Owner for different and innovative approaches to the design and construction of the Project. The parties shall meet to discuss Design- Builder's written evaluation of Owner's Project Criteria and agree upon what revisions, if any, should be made to such criteria pursuant to an amendment to Exhibit A (Attachments A to J in the RFP).
2.2 Phased Services.
2.2.1 Phase 1 Services. Design- Builder shall perform the services of design, pricing, and other services for the Project based on Owner's Project Criteria, as may be revised in accordance with Section 2.1 hereof, as set forth in Exhibit B, Scope of Services Attachment E in the RFP). Such Phase 1 Services shall include the Phase 1 Price Form attached as Exhibit [__-1]. Design-Builder shall perform such services to the level of completion required for Design- Builder and Owner to establish the Contract Price for Phase 2, as set forth in Section 2.3 below. The Contract Price for Phase 2 shall be developed during Phase 1 on an “open- book” basis. Design- Builder’s Compensation for Phase 1 Services is set forth in Section 7.0 herein, including completion of design services for the Project pursuant to the Contract Price Amendment or, in the event that no such ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511
Contract Price Amendment is executed, upon the request of Owner pursuant to Section 5.3.2. The level of completion required for Phase 1 Services is defined in Exhibit B, Scope of Services (either as a percentage of design completion or by defined deliverables).
2.2.2 Phase 2 Services. Design-Builder’s Phase 2 services shall consist of design support during construction, the procurement of all materials and equipment for the Project, the performance of construction services for the Project, the start -up, testing, and commissioning of the Project, and the provision of warranty services, all as further described in the Contract Price Amendment. Upon receipt of Design-Builder’s proposed Contract Price for Phase 2, Owner may proceed as set forth in Section 2.3.
2.3 Proposal. Upon completion of the 60% design portion of the Phase 1 Services and any other Basis of Design Documents upon which the parties may agree, Design-Builder shall submit a proposal to Owner (the "Phase 2 Price Proposal") for the completion of the design and construction for the Project for the Contract Price, which shall be based on Lump Sum, which shall consist of a Sub- Project Lump Sum for each Sub-Project“. Such Phase 2 Price Proposal shall include the Phase 2 Price Form attached as Exhibit [__-2].
2.3.1 The Phase 2 Price Proposal shall include the following unless the parties mutually agree otherwise:
2.3.1.1 The Contract Price that shall be based on a Lump Sum[, including each Sub- Project Lump Sum;
2.3.1.2 The Basis of Design Documents, which may include, by way of example, Owner’s Project Criteria, which are set forth in detail and are attached to the Phase 2 Price Proposal;
2.3.1.3 A list of the assumptions and clarifications made by Design- Builder in the preparation of the Phase 2 Price Proposal, which list is intended to supplement the information contained in the drawings and specifications and is specifically included as part of the Basis of Design Documents;
2.3.1.4 The Scheduled Substantial Completion Date upon which the Phase 2 Price Proposal is based, to the extent said date has not already been established under Section
6.2.1 hereof, and a detailed schedule upon which the Scheduled Substantial Completion Date is based and a project schedule for the Work (Project Schedule);
2.3.1.5 I f applicable, a list of Allowance Items, Allowance Values, and a statement of their basis;
2.3.1.6 If applicable, a schedule of alternate prices;
2.3.1.7 If applicable, a schedule of unit prices;
2.3.1.8 If applicable, a statement of Additional Services which may be performed but which are not included in the Phase 2 Price Proposal, and which, if performed, shall be the basis for an increase in the Contract Price and/or Contract Time(s);
2.3.1.9 [Intentionally Omitted];
2.3.1.10 [Intentionally Omitted;
2.3.1.11 The time limit for acceptance of the Phase 2 Price Proposal; provided, that the time limit shall be at least [30] working days from the delivery of any Phase 2 Price Proposal that does not exceed [95%] of the Phase 2 Project Budget; provided, further, that the time limit shall be ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511
at least [90 days] Phase 2 Price Proposal from the date of Phase 2 Price Proposal delivery for any proposal above 95% of the Phase 2 Project Budget; and
2.3.1.12 An Owner’s permit list, a list detailing the permits and governmental approvals that Owner will bear responsibility to obtain.
2.3.2 Review and Adjustment to Phase 2 Price Proposal.
2.3.2.1 After submission of the Phase 2 Price Proposal, Design- Builder and Owner shall meet to discuss and review the Phase 2 Price Proposal. If Owner has any comments regarding the Phase 2 Price Proposal, or finds any inconsistencies or inaccuracies in the information presented, it shall promptly give written notice to Design- Builder of such comments or findings. If appropriate, Design-Builder shall, upon receipt of Owner’s notice, make appropriate adjustments to the Phase 2 Price Proposal.
2.3.2.3 Acceptance of Phase 2 Price Proposal. If Owner accepts the Phase 2 Price Proposal, as may be amended by Design- Builder and Owner, the Contract Price and its basis shall be set forth in an amendment to this Agreement, when mutually agreed between the parties (Contract Price Amendment). Once the parties have agreed upon the Contract Price and Owner has issued a Notice to Proceed with Phase 2 Services, Design -Builder shall perform the Phase 2 Services, all as further described in the Contract Price Amendment, as it may be revised.
2.3.2.4 Failure to Accept the Phase 2 Price Proposal. If Owner rejects the Phase 2 Price Proposal, or fails to notify Design- Builder in writing on or before the date specified in the Phase 2 Price Proposal that it accepts the Phase 2 Price Proposal, the Phase 2 Price Proposal shall be deemed withdrawn and of no effect. In such event, Owner and Design- Builder shall meet and confer as to how the Project will proceed, with Owner having the following options:
13. Owner may suggest modifications to t he Phase 2 Price Proposal, whereupon, if such modifications are accepted in writing by Design- Builder, the Phase 2 Price Proposal shall be deemed accepted and the parties shall proceed in accordance with Section 2.3.2.3 above;
ii. [Intentionally Omitted]; or
iii. Owner may terminate this Agreement for convenience in accordance with Article 9 hereof; provided, however, in this event, Design-Builder shall not be entitled to the payment provided for in Section 9.2 hereof.
If Owner fails to exercise any of the above options, Design- Builder shall have the right to (a) suspend performance of Work in accordance with Section 11.3.1 of the General Conditions of Contract, provided, however, that in such event Design- Builder shall not be entitled to the payment provided for in Section 9.2 hereof, or (b) may give written notice to Owner that it considers this Agreement completed. If Owner fails to exercise any of the options under Section 2.3.2.4 within thirty (30) days of receipt of Design- Builder’s notice, then this Agreement shall be deemed completed. If Owner terminates the relationship with Design-Builder under Section 2.3.2.4(iii), or if this Agreement is deemed completed under this paragraph, then Design- Builder shall have no further liability or obligations to Owner under this Agreement.
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511
Article 3
• Contract Documents
3.1 The Contract Documents are comprised of the following, and shall be construed in the following order of priority:
3.1.1 All written modifications, amendments, minor changes, and Change Orders to this Agreement issued in accordance with DBIA Document No. 535, Standard Form of General Conditions of Contract Agreement Between Owner and Design- Builder (2010 Edition) (“General Conditions of Contract”);
3.1.2 The Contract Price Amendment referenced in Section 2.3.2.3 herein or the Phase 2 Price Proposal accepted by Owner in accordance with Section 2.3 herein.
3.1.3 This Agreement, including all exhibits (including, but not limited to Attachment 1, Attachment 2, Attachment 3, Exhibit A and Exhibit B and Exhibit C) but excluding, if applicable, the Contract Price Amendment; provided, that in the event of conflict between the Agreement and any attachment or exhibit, the attachment or exhibit shall prevail.
3.1.4 T
he General Conditions of Contract;
3.1.5 Construction Documents (100% signed drawings and completed project specifications) prepared and approved in accordance with Section 2.4 of the General Conditions of Contract; and
3.1.6 Attachment E of the RFP, Attachments A to J to the RFP.
Article 4
Interpretation and Intent
4.1 Design-Builder and Owner, at the time of acceptance of the Phase 2 Price Proposal by Owner in accordance with Section 2.3 hereof, shall carefully review all the Contract Documents, including the various documents comprising the Basis of Design Documents for any conflicts or ambiguities. Design-Builder and Owner will discuss and resolve any identified conflicts or ambiguities prior to execution of the Agreement, or if applicable, prior to Owner’s acceptance of the Phase 2 Price Proposal pursuant to a Contract Price Amendment.
4.2 The Contract Documents are intended to permit the parties to complete the Work and all obligations required by the Contract Documents within the Contract Time(s) for the Contract Price. The Contract Documents are intended to be complementary and interpreted in harmony so as to avoid conflict, with words and phrases interpreted in a manner consistent with construction and design industry standards. In the event inconsistencies, conflicts, or ambiguities between or among the Contract Documents are discovered after Owner’s acceptance of the Phase 2 Price Proposal, Design- Builder and Owner shall attempt to resolve any ambiguity, conflict, or inconsistency informally, recognizing that the Contract Documents shall take precedence in the order in which they are listed in Section 3.1 hereof.
4.3 Terms, words, and phrases used, and not otherwise defined in Appendix 1 of this Agreement, in the Contract Documents, including this Agreement, shall have the meanings given them in the General Conditions of Contract.
4.4 If Owner’s Project Criteria contain design specifications: (a) Design-Builder is entitled to reasonably rely on the accuracy of the information represented in the design specifications and their compatibility with other information set forth in Owner’s Project Criteria, including any design performance specifications; and (b) Design-Builder shall be entitled to an adjustment in its Contract Price and/or Contract Time(s) to the extent Design-Builder’s cost and/or time of performance have been materially adversely impacted by such inaccurate design specification.
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511
4.5 The Contract Documents form the entire agreement between Owner and Design- Builder and by incorporation herein are as fully binding on the parties as if repeated herein. No oral representations or other agreements have been made by the parties except as specifically stated in the Contract Documents.
Article 5
Ownership of Work Product
5.1 Work Product. Prior to payment in full of the Phase 1 Contract Price, all drawings, specifications and other documents and electronic data, including such documents identified in the General Conditions of Contract, furnished by Design-Builder to Owner under this Agreement (“Work Product”) are deemed to be instruments of service and Design- Builder shall retain the ownership and property interests therein, including but not limited to any intellectual property rights, copyrights, and/or patents, subject to the provisions set forth in Sections 5.2 through 5.5 below.
5.2 Owner’s Limited License upon Project Completion and Payment in Full to Design-Builder. Upon Owner’s payment in full of the Phase 1 Contract Price for all Phase 1 Services performed under the Contract Documents, (a) Design-Builder shall transfer to Owner full unlimited and unencumbered ownership the Phase 1 Work Product, conditioned on Owner’s express understanding that its alteration of the Work Product without the involvement of Design- Builder is at Owner’s sole risk and without liability or legal exposure to Design-Builder or anyone working by or through Design-Builder, including Design Consultants of any tier (collectively the “Indemnified Parties”), and on the Owner’s obligation to provide the indemnity set forth In Section 5.5 herein and (b) Owner shall grant to Design- Builder a perpetual, no- cost license to the Phase 1 Work Product. Upon Owner’s payment in full of the Contract Price for all Phase 2 Services performed under the Contract Documents, Design- Builder shall transfer to Owner full, unlimited and unencumbered ownership the Phase 2 Work Product in connection with Owner’s occupancy of the Project, conditioned on Owner’s express understanding that its alteration of the Work Product without the involvement of Design- Builder is at Owner’s sole risk and without liability or legal exposure to the Indemnified Parties, and on the Owner’s obligation to provide the indemnity set forth in Section 5.5 herein, and and (b) Owner shall grant to Design-Builder a perpetual, no-cost license to the Phase 2 Work Product.
In addition, Design- Builder shall secure in writing from all sub- contractors and third- party patentees, copyright holders, and assignees of all Project -related documents, 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 Owner 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 Owner 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.
5.3 Owner’s Limited License upon Owner’s Termination for Convenience or Design- Builder’s Election to Terminate. If Owner terminates this Agreement for its convenience as set forth in Article 9 hereof, or if Design-Builder elects to terminate this Agreement in accordance with S ection 11.4 of the General Conditions of Contract, Design- Builder shall, upon Owner’s payment in full of the amounts due Design- Builder under the Contract Documents for Work performed, grant Owner a limited license to use the Work Product to complete the Project and subsequently occupy the Project, and Owner shall thereafter have the same rights as set forth in Section 5.2 above, conditioned on the following:
5.3.1 Use of the Work Product is at Owner’s sole risk without liability or legal exposure to any Indemnified Party, and on the Owner’s obligation to provide the indemnity set forth in Section 5.5 herein, and
5.3.2 Owner may elect to pay Design-Builder the additional lump sum of Dollars [($ )]1 as compensation (a) to bring the Work Product, including designs and drawings from
1 TO BE ADDED BASED ON PHASE 1 PRICE FORM (OPTION TO COMPLETE DESIGN) ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511
the [60%], to a set of biddable documents within [60 days] of the date of termination and (b) for the right to use the Work Product to complete the Project and subsequently use the Work Product in accordance with Section 5.2 if Owner resumes the Project through its employees, agents, or third parties; provided, that this provision shall survive termination until delivery of the biddable documents.
5.4 Owner’s Limited License upon Design-Builder’s Default. If this Agreement is terminated due to Design-Builder’s default pursuant to Section 11.2 of the General Conditions of Contract, then Design- Builder grants Owner a limited license to use the Work Product to complete the Project and subsequently occupy the Project, and Owner shall thereafter have the same rights and obligations as set forth in Section
5.2 above. Notwithstanding the preceding sentence, if it is ultimately determined that Design- Builder was not in default, Owner shall be deemed to have terminated the Agreement for convenience, and Design- Builder shall be entitled to the rights and remedies set forth in Section 5.3 above.
5.5 Owner’s Indemnification for Use of Work Product. Owner recognizes that in the event of an early termination of the Work, whether for convenience or for cause, Design-Builder may not have the opportunity to finish or to finalize its Work Product. Therefore, if Owner uses any incomplete Work Product, in whole or in part, or if Owner is required to indemnify any Indemnified Parties based on the use or alteration of the Work Product under any of the circumstances identified in this Article 5, Owner shall defend, indemnify, and hold harmless the Indemnified Parties from and against any and all claims, damages, liabilities, losses, and expenses, including attorneys’ fees, arising out of or resulting from the use or alteration of the Work Product, to the fullest extent permitted by applicable law; provided, that this indemnity shall not apply to the use of completed Work Product.
Article 6
Contract Time
6.1 Date of Commencement. The Phase 1 Services shall commence within five (5) days of Design- Builder’s receipt of Owner’s Notice to Proceed for Phase 1 Services unless the parties mutually agree otherwise in writing. The Work shall commence within five (5) days of Design- Builder’s receipt of Owner’s Notice to Proceed for Phase 2 Services (“Date of Commencement”) if the Phase 2 Price Proposal is accepted and the Contract Price Amendment is amended to this Agreement unless the parties mutually agree otherwise in writing. Phase 1 Services shall be achieved no later than the date set forth in the milestone schedule as shown in 6.2.2 below.
6.2 Substantial Completion and Final Completion.
6.2.1 Substantial Completion of the entire Work shall be achieved no later than August 31, 2025 (“Scheduled Substantial Completion Date”).
6.2.2 Interim milestones and/or Substantial Completion of identified portions of the Work shall be achieved as
• 60% Design within sixth months of the date of commencement • 100% Design within two months of Notice to Proceed for Phase II • Substantial project completion within the earlier of (a) 14 months the Notice to Proceed for Phase 2 or (b) the Scheduled Substantial Completion Date.
6.2.3 Final Completion of the Work or identified portions of the Work shall be achieved as expeditiously as reasonably practicable. Final Completion is the date when all Work is complete pursuant to the definition of Final Completion set forth in Section 1.2.7 of the General Conditions of Contract and as supplemented by Attachment 2 of this Agreement ;
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511
6.2.4 All of the dates set forth in this Article 6 (“Contract Time(s)”) shall be subject to adjustment in accordance with the General Conditions of Contract.
6.3 Time is of the Essence. Owner and Design-Builder mutually agree that time is of the essence with respect to the dates and times set forth in the Contract Documents.
6.4 Liquidated Damages. Design-Builder understands that if Substantial Completion is not attained by the Scheduled Substantial Completion Date, Owner will suffer damages which are difficult to determine and accurately specify. Design -Builder agrees that if: (a) Phase 1 Services Completion is not attained by the Scheduled Phase 1 Services Completion Date (the “Phase 1 LD Date”), Design -Builder shall pay Owner Two Thousand Five Hundred Dollars ($2,500) as liquidated damages for each day that Substantial Completion extends beyond the Phase 1 LD Date. (b) Substantial Completion is not attained by the Scheduled Substantial Completion Date (the “Phase 2 LD Date”), Design- Builder shall pay Owner Two Thousand Five Hundred Dollars ($2,500) as liquidated damages for each day that Substantial Completion extends beyond the Phase 2 LD Date.
6.5 Any liquidated damages assessed pursuant to this Agreement shall be in lieu of all liability for any and all extra costs, losses, expenses, claims, penalties, and any other damages, whether special or consequential, and of whatsoever nature, incurred by Owner which are occasioned by any delay in achieving Substantial Completion, Interim Milestone Dates (if any) or Final Completion; provided, that this limitation shall not apply to other extra costs, losses, expenses, claims, penalties, and any other damages arising for reasons caused by the Design- Builder that do not relate to delay in achieving Substantial Completion, Interim Milestone Dates (if any) or Final Completion.
[The Parties may also desire to cap the liquidated damages payable under this Agreement, in which case the following language should be included at the end of Section 6.5.]
Owner and Design- Builder agree that the maximum aggregate liability Design- Builder has for any liquidated damages that may be assessed under this Agreement shall be FIVE HUNDRED THOUSAND DOLLARS ($500,000).
Article 7
Contract Price
7.1 Contract Price.
7.1.1 Owner shall pay Design-Builder in accordance with Article 6 of the General Conditions of Contract the not -to-exceed sum of [______________________________________________] Dollars ($ ) for the Phase 1 Services, subject to adjustments made in accordance with the General Conditions of Contract (“Phase 1 Contract Price”). Unless otherwise provided in the Contract Documents, the Phase 1 Services compensation is deemed to include all sales, use, consumer and other taxes mandated by applicable Legal Requirements.
7.1.2 For Phase 2 Services, Owner shall pay Design- Builder in accordance with Article 7 of the General Conditions of Contract a contract price equal to the Lump Sum amount set forth in Section
7.2 hereof.
7.1.3 For the specific Work set forth below, Owner agrees to pay Design- Builder, as part of the Contract Price, on the following basis: (This is an optional section intended to provide the parties with flexibility to identify and price limited services.)
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511
7.2 Lump Sum. Owner shall pay Design-Builder in accordance with Article 6 of the General Conditions of Contract the sum as set forth in the Contract Price Amendment (“Contract Price”) for the Work for Phase 2 Services, subject to adjustments made in accordance with the General Conditions of Contract. Unless otherwise provided in the Contract Documents, the Contract Price is deemed to include all sales, use, consumer and other taxes mandated by applicable Legal Requirements. The Contract Price shall be the aggregate of the four Sub-Project Lump Sum amounts.
7.3 Markups for Changes. If the Contract Price requires an adjustment due to changes in the Work, and the cost of such changes is determined under Sections 9.4.1.3 or 9.4.1.4 of the General Conditions of Contract, the following markups shall be allowed on such changes:
7.3.1 For additive Change Orders, including additive Change Orders arising from both additive and deductive items, it is agreed that Design- Builder shall receive a Fee equal to the percentage set forth in Design-Builder’s Fee of the additional costs incurred for that Change Order, plus any other markups set forth in the Contract Price Amendment, if any.
7.3.2 For deductive Change Orders, including deductive Change Orders arising from both additive and deductive items, the deductive amounts shall include:
[Check one box only]
No additional reduction to account for Design-Builder’s Fee or any other markup.
Or
An amount equal to the sum of: (a) percent (__________%) applied to the direct costs of the net reduction (which amount will account for a reduction associated with Design- Builder’s Fee); plus (b) any other markups set forth at Exhibit _________ hereto applied to the direct costs of the net reduction.
7.3.3 Any changes or extra work provided under any Change Order shall be a part of and subject to all the provisions of this Agreement and the Design- Builder, and its sureties shall be bound thereby and to the same extent as under the original Agreement.
7.4 D esign- Builder’s Fee.
7.4.1 Design-Builder’s Fee for Phase 2 Services shall be:
percent ( %) of the Cost of
the Work.
7.4.2 Design-Builder’s Fee will be adjusted as follows for any changes in the Work:
7.4.2.1 F or additive Change Orders, including additive Change Orders arising from both additive and deductive items, it is agreed that Design- Builder shall receive a Fee of as equal to the percent set forth in Design- Builder’s Fee of the additional Costs of the Work incurred for that Change Order, plus any other markups set forth in the Contract Price Amendment.
7 .4.2.2 For deductive Change Orders, including deductive Change Orders arising from both additive and deductive items, the deductive amounts shall include:
[Check one box only]
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511
No additional reduction to account for Design-Builder’s Fee or any other markup.
or
An amount equal to the percentage set forth in Section 7.4.1.
7.5 C ost of the Work.
7.5.1 The term Cost of the Work shall mean costs reasonably incurred by Design- Builder in the proper performance of the Work. The Cost of the Work shall include only the following:
7.5.1.1 Wages of direct employees of Design- Builder performing the Work at the Site or, with Owner’s agreement, at locations off the Site, provided, however, that the costs for those employees of Design-Builder performing design services shall be calculated on the basis of prevailing market rates for design professionals performing such services or, if applicable, those rates set forth in an exhibit to this Agreement.
7.5.1.2 Wages or salaries of Design- Builder’s supervisory and administrative personnel engaged in the performance of the Work and who are located at the Site or working off - Site to assist in the production or transportation of material and equipment necessary for the Work.
7.5.1.3 Wages or salaries of Design- Builder’s personnel stationed at Design- Builder’s principal or branch offices, but only to the extent said personnel are identified in Exhibit B and performing the function set forth in said Exhibit. The reimbursable costs of personnel stationed at Design-Builder’s principal or branch offices shall include a percent ( %) markup to compensate Design- Builder for the Project - related overhead associated with such personnel.
7.5.1.4 Pro rata costs incurred by Design-Builder for employee benefits, premiums, taxes, insurance, contributions and assessments required by law, collective bargaining agreements, or which are customarily paid by Design-Builder, to the extent such costs are based on wages and salaries paid to employees of Design-Builder covered under Sections
7.5.1.1 through 7.5.1.3 hereof.
7.5.1.5 The reasonable portion of the cost of travel, accommodations and meals for Design-Builder’s personnel necessarily and directly incurred in connection with the performance of the Work.
7.5.1.6 Payments properly made by Design- Builder to Subcontractors and Design Consultants for performance of portions of the Work, including any insurance and bond premiums incurred by Subcontractors and Design Consultants.
7.5.1.7 Costs incurred by Design-Builder in repairing or correcting defective, damaged or nonconforming Work (excluding any warranty or corrective Work performed after Substantial Completion), provided that such Work was beyond the reasonable control of Design-Builder, or caused by the ordinary mistakes or inadvertence, and not the negligence, of Design-Builder or those working by or through Design- Builder. If the costs associated with such Work are recoverable from insurance, Subcontractors or Design Consultants, Design- Builder shall exercise best efforts to obtain recovery from the appropriate source and provide a credit to Owner if recovery is obtained.
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511
7.5.1.8 Costs, including transportation, inspection, testing, storage, and handling of materials, equipment, and supplies incorporated or reasonably used in completing the Work.
7.5.1.9 Costs less salvage value of materials, supplies, temporary facilities, machinery, equipment and hand tools not customarily owned by the workers that are not fully consumed in the performance of the Work and which remain the property of Design- Builder, including the costs of transporting, inspecting, testing, handling, installing, maintaining, dismantling, and removing such items.
7.5.1.10 Costs of removal of debris and waste from the Site.
7.5.1.11 The reasonable costs and expenses incurred in establishing, operating and demobilizing the Site office, including the cost of facsimile transmissions, long- distance telephone calls, postage and express delivery charges, telephone service, photocopying, and reasonable petty cash expenses.
7.5.1.12 Rental charges and the costs of transportation, installation, minor repairs and replacements, dismantling and removal of temporary facilities, machinery, equipment and hand tools not customarily owned by the workers, which are provided by Design-Builder at the Site, whether rented from Design-Builder or others, and incurred in the performance of the Work; provided, that any rental charges or costs from assets rented from Design- Builder shall not exceed the prevailing market cost (which shall not exceed the applicable rate set forth in the most current Labor Surcharge and Equipment Rental Rates (Cost of Equipment Ownership) published by the State of California, California State Transportation Agency, Department of Transportation, Division of Construction).
7.5.1.13 Premiums for insurance and bonds required by this Agreement or the performance of the Work.
7.5.1.14 All fuel and utility costs incurred in the performance of the Work.
7.5.1.15 Sales, use, or similar taxes, tariffs, or duties incurred in the performance of the Work.
7.5.1.16 Legal costs, court costs, and costs of mediation and arbitration reasonably arising from Design- Builder’s performance of the Work, provided such costs do not arise from disputes between Owner and Design- Builder; provided, further, such costs do not arise from the gross negligence or willful misconduct of Design-Builder.
7.5.1.17 Costs for permits, royalties, licenses, tests and inspections incurred by Design- Builder as a requirement of the Contract Documents.
7.5.1.18 The cost of defending suits or claims for infringement of patent rights arising from the use of a particular design, process, or product required by Owner, paying legal judgments against Design -Builder resulting from such suits or claims, and paying settlements made with Owner’s consent, except to the extent caused by Design- Builder’s negligence.
7.5.1.19 Deposits which are lost, except to the extent caused by Design- Builder’s negligence.
7.5.1.20 Costs incurred in preventing damage, injury, or loss in case of an emergency affecting the safety of persons and property, except to the extent caused by Design- Builder’s negligence.
7.5.1.21 Accounting and data processing costs related to the Work.
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511
7.5.1.22 Other costs reasonably and properly incurred in the performance of the Work to the extent approved in writing by Owner.
7.5.2 Non-Reimbursable Costs. The following shall be excluded from the Cost of the Work:
7.5.2.1 Compensation for Design- Builder’s personnel stationed at Design- Builder’s principal or branch offices, except as provided for in Sections 7.5.1.1, 7.5.1.2, and 7.5.1.3 hereof.
7.5.2.2 Overhead and general expenses, except as provided for in Section 7.5.1 hereof, or which may be recoverable for changes to the Work.
7.5.2.3 The cost of Design-Builder’s capital used in the performance of the Work.
7.5.2.4 Any costs arising from Design-Builder’s negligence.
7.6 In the event that Design- Builder receives proceeds from third party sources for the Cost of Work, including, but not limited to insurance proceeds, such amounts shall reduce the City’s obligation to make payment for such Cost of Work.
I
7.6.3 [Intentionally Omitted].
7.7 Allowance Items and Allowance Values.
7.7.1 Any and all Allowance Items, as well as their corresponding Allowance Values, are set forth in the Contract Price Amendment or the Phase 2 Price Proposal.
7.7.2 Design-Builder and Owner have worked together to review the Allowance Items and Allowance Values based on design information then available to determine that the Allowance Values constitute reasonable estimates for the Allowance Items. Design- Builder and Owner will continue working closely together during the preparation of the design to develop Const ruction Documents consistent with the Allowance Values. Nothing herein is intended in any way to constitute a guarantee by Design-Builder that the Allowance Item in question can be performed for the Allowance Value.
7.7.3 No work shall be performed on any Allowance Item without Design- Builder first obtaining in writing advanced authorization to proceed from Owner. Owner agrees that if Design- Builder is not provided written authorization to proceed by the date set forth in the Project schedule, due to no fault of Design-Builder, Design-Builder may be entitled to an adjustment of the Contract Time(s) and Contract Price.
7.7.4 The Allowance Value includes the direct cost of labor, materials, equipment, transportation, taxes, and insurance associated with the applicable Allowance Item. All other costs, including design fees, Design-Builder’s overall project management and general conditions costs, overhead and Fee, are deemed to be included in the original Contract Price, and are not subject to adjustment notwithstanding the actual amount of the Allowance Item.
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511
Article 8
Procedure for Payment
8.1 Payment for Preliminary Services. Design-Builder and Owner agree upon the following method for partial and final payment to Design- Builder for the services hereunder: The hourly rates set forth in Exhibit B; provided, that in no event shall exceed the Phase 1 Contract Price.
8.2 Contract Price Progress Payments.
8.2.1 Design-Builder shall submit to Owner on the tenth (10th) day of each month, beginning with the first month after the Date of Commencement, Design-Builder’s Application for Payment in accordance with Article 6 of the General Conditions of Contract and as supplemented by Attachment 2 of this Agreement.
8.2.2 Owner shall make payment within thirty (30) days after Owner’s receipt of each properly submitted and accurate Application for Payment in accordance with Article 6 of the General Conditions of Contract and as supplemented by Attachment 2 of this Agreement, but in each case less the total of payments previously made, and less amounts properly withheld under Section 6.3 of the General Conditions of Contract.
8.2.3 If Design-Builder’s Fee under Section 7.4 hereof is a fixed amount, the amount of Design- Builder’s Fee to be included in Design- Builder’s monthly Application for Payment and paid by Owner shall be proportional to the percentage of the Work completed, less payments previously made on account of Design-Builder’s Fee.
8.3 Retainage on Progress Payments.
8.3.1 Owner will retain five percent (5%) of each Application for Payment provided, however, that when seventy -five percent (75%) of the Work has been satisfactorily completed by Design- Builder and Design-Builder is otherwise in compliance with its contractual obligations, Owner will not retain any additional retention amounts from Design- Builder’s subsequent Applications for Payment. Owner will also reasonably consider reducing retainage for Subcontractors completing their work early in the Project.
8.3.2 Within fifteen (15) days after Substantial Completion of the entire Work or, if applicable, any portion of the Work, pursuant to Section 6.6 of the General Conditions of Contract, Owner shall release to Design- Builder all retained amounts relating, as applicable, to the entire Work or completed portion of the Work, less an amount equal to: (a) the reasonable value of all remaining or incomplete items of Work as noted in the Certificate of Substantial Completion; and (b) all other amounts Owner is entitled to withhold pursuant to Section 6.3 of the General Conditions of Contract.
[If Owner and Design-Builder have established a warranty reserve pursuant to Section
7.5.1.23 above, the following provision should be included.]
If a warranty reserve has been established pursuant to Section 7.5.1.23 above, Owner shall at the time of Substantial Completion retain the agreed- upon amounts and establish an escrow account as contemplated by Section 7.5.1.23 above.
8.4 Final Payment. Design- Builder shall submit its Final Application for Payment to Owner in accordance with Section 6.7 of the General Conditions of Contract and as supplemented by Attachment 2 of this Agreement. Owner shall make payment on Design-Builder’s properly submitted and accurate Final Application for Payment (less any amount the parties may have agreed to set aside for warranty work) within thirty (30) days after Owner’s receipt of the Final Application for Payment, provided that: (a) Design- Builder has satisfied the requirements for final payment set forth in Section 6.7.2 of the General Conditions of Contract as supplemented by Attachment 2 of this Agreement.
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511
8.5 Interest. Payments due and unpaid by Owner to Design- Builder, whether progress payments or final payment, shall bear interest commencing five (5) days after payment is due at the rate of one percent (1%) per month until paid.
8.6 Record Keeping and Finance Controls. Design-Builder acknowledges that this Agreement is to be administered on an “open book” arrangement relative to Costs of the Work. Design- Builder shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management, using accounting and control systems in accordance with generally accepted accounting principles and as may be provided in the Contract Documents. During the performance of the Work and for a period of four (4) years after Final Payment, Owner and Owner’s accountants shall be afforded access to, and the right to audit from time to time, upon reasonable notice, Design- Builder’s records, books, correspondence, receipts, subcontracts, purchase orders, vouchers, memoranda, and other data relating to the Work, all of which Design-Builder shall preserve for a period of four (4) years after Final Payment. Such inspection shall take place at Design-Builder’s offices during normal business hours unless another location and time is agreed to by the parties. Any multipliers or markups agreed to by the Owner and Design-Builder as part of this Agreement are only subject to audit to confirm that such multiplier or markup has been charged in accordance with this Agreement, but the composition of such multiplier or markup is not subject to audit.
Any lump sum agreed to by the Owner and Design-Builder as part of this Agreement is not subject to audit.
Article 9
Termination for Convenience
9.1 Upon ten (10) days’ written notice to Design- Builder, Owner may, for its convenience and without cause, elect to terminate this Agreement. In such event, Owner shall pay Design-Builder for the following:
9.1.1 All services performed and Work executed and for proven loss, cost, or expense in connection with the services and Work;
9.1.2 The reasonable costs and expenses attributable to such termination, including demobilization costs and amounts due in settlement of terminated contracts with Subcontractors and Design Consultants; and
9.1.3 (Choose one of the following:)
The fair and reasonable sums for overhead and profit on the sum of items 9.1.1 and
9.1.2 above.
or
Overhead and profit in the amount of percent ( %) on the sum of items 9.1.1 and 9.1.2 above.
9.2 If Owner terminates this Agreement for convenience after commencement of construction, Design- Builder shall be paid percent ( %) of the remaining balance of the Contract Price. If Owner terminates this Agreement pursuant to Section 9.1 above and proceeds to design and construct the Project through its employees, agents or third parties, Owner’s rights to use the Work Product shall be as set forth in Section 5.3 hereof. Such rights may not be transferred or assigned to others without Design-Builder’s express written consent and such third parties’ agreement to the terms of Article 5.
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511
Article 10
Representatives of the Parties
10.1 Owner’s Representatives.
10.1.1 Owner designates the individual listed below as its Senior Representative (“Owner Senior Representative”), which individual has the authority and responsibility for avoiding and resolving disputes under Section 10.2.3 of the General Conditions of Contract: (Identify individual’s name, title, address, and telephone numbers.)
10.1.2 Owner designates the individual listed below as its Owner’s Representative, which individual has the authority and responsibility set forth in Section 3.4 of the General Conditions of Contract: (Identify individual’s name, title, address, and telephone numbers.)
10.2 Design-Builder’s Representatives.
10.2.1 Design-Builder designates the individual listed below as its Senior Representative (“Design-Builder’s Senior Representative”), which individual has the authority and responsibility for avoiding and resolving disputes under Section 10.2.3 of the General Conditions of Contract: (Identify individual’s name, title, address, and telephone numbers.)
10.2.2 Design-Builder designates the individual listed below as its Design -Builder’s Representative, which individual has the authority and responsibility set forth in Section 2.1.1 of the General Conditions of Contract: (
Identify individual’s name, title, address, and telephone numbers.)
Article 11
Bonds and Insurance
11.1 Insurance. Design- Builder and Owner shall procure the insurance coverages set forth in the Insurance Exhibit attached hereto and in accordance with Attachment 2.
11.2 Bonds and Other Performance Security. Design-Builder shall provide the following performance bond and labor and material payment bond or other performance security, in the forms set forth in Attachment 3:
Performance Bond.
(Check one box only. If no box is checked, then no bond is required.)
Required Not Required
Payment Bond.
(Check one box only. If no box is checked, then no bond is required.)
Required Not Required
Other Performance Security.
(Check one box only. If no box is checked, then no other performance security is required. If the “Required” box is checked, identify below the specific performance security that is being required and all salient commercial terms associated with that security.)
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511
Required Not Required
Article 12
Other Provisions
12.1 Other provisions, if any, are as follows: (Insert any additional provisions.)
The additional provisions set forth in Attachment 2 are incorporated into this Agreement.
12.2 Listing of Attachments, Exhibits and documents incorporated herein:
Attachment 1 – Definitions
Attachment 2 – Additional Provisions
Attachment 3 -- Forms of Bonds
Exhibit A – Owner’s Project Criteria
Exhibit B – Scope of Services
DBIA Document No. 535, Standard Form of General Conditions of Contract Between Owner and Design-Builder (“2010 Edition“) ("General Conditions of Contact")
Contract Price Amendment, if any.
Any claims, disputes, or controversies between the parties arising out of or related to the Agreement, or the breach thereof, which have not been resolved in accordance with the procedures set forth in Section 10.2 of the General Conditions of Contract shall be resolved in a court of competent jurisdiction in the state in which the Project is located.
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511
In executing this Agreement, Owner and Design- Builder each individually represents that it has the necessary financial resources to fulfill its obligations under this Agreement, and each has the necessary corporate approvals to execute this Agreement, and perform the services described herein.
OWNER: DESIGN-BUILDER:
CITY OF BURBANK [INSERT FULL LEGAL ENTITY NAME]
(Signature) (Signature)
(Printed Name) (Printed Name)
(Title) (Title)
Date: D ate:
California Contractor’s
License No.
Tax I.D. No.
APPROVED AS TO LEGAL FORM
By:
Name:
Title: Senior Assistant City Attorney
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 18
Attachment 1
Definitions
“Additional Services” has the meaning assigned to such term in [the General Conditions of Contract]. “Application for Payment” shall mean an application of payment that satisfies the requirements in Attachment 2, Part 1, Section 7.
“Allowance Items” has items identified in the Contract Price Amendment for the cost of potential materials or services that are still unknown at the time of the Contract Price Amendment as determined pursuant to Section 7.7.. “Allowance Values” means itemized budget values identified in the Contract Price Amendment for Allowance Items as determined pursuant to Section 7.7..
"Basis of Design Documents” ”means the documentation that serve as the basis for the design document submitted under this Agreement, including the 60% complete drawings based on the Owner’s Project Criteria and Scope of Work, in each case, as modified in accordance with this Agreement. “Change Order” has the meaning assigned to such term in the General Conditions of Contract. “Construction Documents” has the meaning assigned to such term in the General Conditions of Contract. “Contract Documents” has the meaning assigned to such term in [the General Conditions of Contract]. “Contract Price” has the meaning assigned to such term in [the General Conditions of Contract]. “Contract Price Amendment” has the meaning assigned to such term in Section 2.3.2.3 of this Agreement. “Contract Times” has the meaning assigned to such term in Section 6.2.4 of this Agreement. “Cost of the Work” has the meaning assigned to such term in the General Conditions of Contract. “Date of Commencement” has the meaning assigned to such term in Section 6.1 of this Agreement. “Design-Builder” has the meaning assigned to such term in the Preamble to this Agreement. “Design-Builder’s Fee” has the meaning assigned to such term in Section 7.4.1. “Design Consultants” has the meaning assigned to such term in [the General Conditions of Contract]. “Final Application for Payment” means the final Application for Payment for Final Completion. “Final Completion” has the meaning assigned to such term in the General Conditions of Contract . “General Conditions of Contract” has the meaning assigned to such term in Section 1.2 of this Agreement; provided, that any reference to the General Conditions of Contract shall be as such terms and conditions are modified under this Agreement
“Indemnified Parties” has the meaning assigned to such term in Section 5.2 of this Agreement. “Lump Sum” refers to the aggregate lump sum amount payable to the Design- Builder to perform and complete all of the Phase 2 Services; provided, that it is understood that the Lump Sum shall be equal to the aggregate of the four Sub-Project Lump Sum amounts.
“Owner” has the meaning assigned to such term in the Preamble.“Notice to Proceed” means a written notice given by Owner to Design-Builder which authorizes the Design-Builder to commence performance of the Work specified in such notice.
“Owner's Project Criteria” has the meaning assigned to such term in the General Conditions of Contract.
“Phase 1” shall mean the portion of the schedule and work allocated to Phase 1 Services. “Phase 1 Contract Price” shall have the meaning assigned to such term in Section 7.1.1 of this Agreement ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 19
“Phase 1 LD Date” shall have the meaning assigned to such term in Section 6.4 of this Agreement “Phase 1 Services” shall mean the services to be provided under Section 2.2.1 of this Agreement. “Phase 2” shall mean the portion of the schedule and work allocated to Phase 2 Services. “Phase 2 LD Date” shall have the meaning assigned to such term in Section 6.4 of this Agr eement “Phase 2 Project Budget” shall mean the amount equal to [AMOUNT EQUAL TO: [Seven Million Four Hundred Thousand Dollars ($7,400,000) MINUS PHASE 1 NOT-TO-EXCEED NUMBER]. “Phase 2 Services” shall mean the services to be provided under Section 2.2.2 of this Agreement. “Project” has the meaning assigned to such term in the Preamble to this Agreement. “Project Schedule” has the meaning assigned to such term under Section 2.3.1.4 of this Agreement. “Proposal” shall mean the services to be provided under Section 2.3 of this Agreement. “RFP” means the Request for Proposal [#_______] issued on [_________] by the City of Burbank. “Scheduled Substantial Completion Date” has the meaning assigned to such term in Section 6.2.1. of this Agreement].
“Scope of Services” means all the services set forth in Exhibit B to this Agreement. “Sub-Project” shall mean each “sub-project” as identified in Exhibit B. “Sub-Project Lump Sum” shall mean, for an applicable Sub-Project, the lump sum amount for the performance and completion of the Phase 2 Services for such Sub-Project. “Subcontractor” has the meaning assigned to such term in the General Conditions of Contract; provided, that each Subcontractor shall satisfy the requirements set forth in Attachment 2. “Substantial Completion” or “Substantially Complete” means the date on which the Work, or an agreed upon portion of the Work, is sufficiently complete in accordance with the Contract Documents so that Owner can occupy and use the Project or a portion thereof for its intended purposes; provided, however, that Substantial Completion of the entire Work shall not occur until full satisfaction of the requirements of Section 6.6 of the General Conditions of Contract.
“Work Product” has the meaning assigned to such term in Section 5.1 of this Agreement.
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 20
Attachment 2
City Specific Terms
City Standard Terms and Conditions
[__________] (the “Design-Builder” or “Contractor”) and the City of Burbank (“City”) acknowledge and agree that these City Standard Terms and Conditions supplement the Progressive Design-Build Agreement (the “Contract”), by and between Design-Builder and the City.
Part 1
GENERAL TERMS
Section 1. Subcontractors, Suppliers and Consultants; Payments
A. 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 Design-Builder 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- 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.
B. The Subcontractor List and Declaration form shall be signed by Design- 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 sub mitted 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.
C. 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.
D. 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 ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 21
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.
E. 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.
F. All services perfo rmed 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 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.
G. 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 Contract. Each subcontract shall specifically provide that the City shall only be responsible to the Subcontractor for those obligations of the Design-Builder that accrue subsequent to the City's exercise of any rights under this contingent assignment.
H. Design-Builder shall make prompt payment to its Subcontractors and Suppliers within seven (7) days after receipt of payment from the City.
I. 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 for 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 ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 22
and Design-Builder. If the amounts retained 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 been paid to discharge such lien or satisfy such claims, including costs, expenses and attorneys’ fees in connection therewith.
Section 2. Licensing
A. 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.
B. All Subcontractors shall hold and maintain the appropriate California C -specialty license, A-general engineering contractor license or engineering license, indicated o n the Subcontractor List and Declaration at the time of Proposal submittal and at all times during performance of the Work.
Section 3. Labor Code Requirements and Prevailing Wage Rates
A. In accordance with the provisions of Division 2, Part 7, Chapter 1 of the Labor Code, the general prevailing rates of per diem wages for 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 dollars ($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.
B. 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.
C. De
sign -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 t he 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.
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 23
D. 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.
E. 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.
F. 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.
G. P
ursuant 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.
H. T he 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.
I. 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.
J. 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.
K. 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.
L. 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.
M. 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.
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 24
N. 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.” Section 4 Safety Practices
A. 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.
B. 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.
C. B
efore the Notice to Proceed, the Design- Builder shall supply the City with Safety Data Sheets (SDS) for all chemicals to be used in the performance of this Contract. The City will make available to the Design-Builder the SDS of any products in use in the areas of Work covered by this Contract. All hazardous materials to be properly disposed of off-site.
D. 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. 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, Design- Builder and/or Design- Builder’s subcontractors must submit their IIPP Program to City’s Safety Officer for review. Prior to commencement of any Work, Design- Builder shall complete the BWP Contractor Information Request Form attached as Exhibit 1, and Design-Builder shall deliver updated versions of the form to the extent of any changes.
E. The program shall be written and shall include but not be limited to the following elements:
F. 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.
G. The Design-Builder's system for identifying and evaluating workplace hazards including ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 25
scheduled periodic inspections to identify unsafe conditions and work practices.
H. 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.
I. 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.
J. 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.
K. The Design-Builder's system for ensuring that employees comply with safe and healthy work practices, which may include disciplinary action.
L. 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.
M. The Design-Builder shall include procedures to investigate occupational injury or occupational illness.
N. 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.
Section 5 Compliance with Law
A. 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.
B. Design-Builder represents and warrants as follows:
1. To the knowledge of the Design-Builder, neither the Design-Builder nor any director or officer thereof or any subcontractor, is an individual or entity that is, or is owned or controlled by any individual or entity that is (i) currently the subject or target of any Sanctions, (ii) included on OFAC’s List of Specially Designated Nationals, or ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 26
any similar list enforced by any other relevant sanctions authority or (iii) located, organized or resident in a Designated Jurisdiction.
2. To the knowledge of the Design- Builder, the Design- Builder has conducted its business in compliance with the United States Foreign Corrupt Practices Act of 1977 and other similar anti-corruption legislation at the federal, state or local level.
C. Design-Builder further agrees and covenants as follows:
1. The Design-Builder will not directly or indirectly, use any proceeds from Contract, or lend, contribute or otherwise make available such proceeds to any Person, to fund any activities of or business with any Person, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that will result in a violation by any Person of Sanctions.
2. The Design-Builder will not directly or indirectly, to its knowledge, use any proceeds from the Contract for any purpose which would breach the United States Foreign Corrupt Practices Act of 1977 and other similar anti -corruption legislation in other federal, state or local laws.
3. The Design-Builder shall upon reasonable request from the City, provide such certifications or other reassurances that it has complied with the provisions in this Section.
For purposes of this Section, the following definitions shall apply:
“Applicable Laws” means all laws, statutes, codes, ordinances, and regulations of governmental authorities having jurisdiction over the Project
“Designated Jurisdiction” means any country or territory to the extent that such country or territory itself is the subject of any Sanction.
“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control, and any successor thereto.
“Person” means an individual, a corporation, a partnership, an association, a joint venture, a trust, a business trust, a limited liability company or any other entity or organization, including a governmental or political subdivision or an agency or instrumentality thereof. “Sanction(s)” means any international economic sanction administered or enforced by the United States Government (including, without limitation, OFAC) or other applicable federal, state or local laws.
Section 6 Taxes
A. 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 ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 27
have no further responsibility therefor. The City shall provide Design-Builder with appropriate evidence of payment of such taxes upon reasonable request.
Section 7. Application for Payment
A. Each Application for Payment shall:
1. Reference the Project and each applicable Sub-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 thi s Contract, 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, including the applicable Schedule of Values comprising the Work completed under the Application for Payment;
7. Include duly completed and executed forms of Conditional 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. For the final payment in connection with “Final Completion”, include 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.
Section 8 Substantial Completion
A. 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:
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 28
1. A certificate of successful completion of the Work of the Project, including all sub- projects, in accordance with the Owner’s Criteria and Technical Specifications. If commissioning and final 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 evidence that it has completed or is ready to perform designated instruction and training of City's personnel in the operations and maintenance of the Work has been completed;
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.
B. When the Design- Builder considers that the Work 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 Design-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 Substant ial 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.
Section 9. Final Completion
A. The Design-Builder shall, upon completion of the Work and final clean up, submit to the 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 ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 29
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.
B. Neither final payment nor any final release of retainage shall become due to Design-Builder until a maximum of thirty (30) days following completion of all punchlist 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:
C. 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;
D. 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;
E. 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;
F. Consent of surety to final payment;
G. 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;
H. Submittal of As-Built Drawings in reproducible format;
I. Submittal of warranties, operational and maintenance manuals and other submittals required by the Contract Documents;
J. Submission of Design-Builder's Waiver, removal of temporary facilities and services; and
K. Such other documentation as the City may reasonably require.
Section 10 Bonds
A. 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 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 ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 30
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.
B. F
aithful 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.
C. P
ayment 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.
S
ection 11. Insurance.
In addition to the bonds set forth in Part 2, Design-Builder shall provide the following insurance:
A. 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 performed 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.
B. Contractor’s Pollution Liability Insurance. The Design- Builder shall provide Contractors’ Pollution Legal Liabil ity, not excluding asbestos and/or lead with limits no less than $2,000,000 combined single limit, per occurrence, and $4,000,000 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. 1494. 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 ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 31
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.
C. The City of Burbank will obtain and pay for the Builder’s Risk policy for this project. The Design-Builder will be responsible for the deductible portion of the policy. The deductible will be no greater than $100,000. Builder’s Risk shall specifically include equipment breakdown (boiler and machinery) coverage and not exclude soft costs.
D. 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.
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 32
City Standard Terms and Conditions
Part 2
CITY OF BURBANK
ADDITIONS AND AMENDMENTS
TO THE STANDARD SPECIFICATIONS
FOR PUBLIC WORKS CONSTRUCTION
The hereinafter mentioned Subsections of Part 1, General Provisions, of the Standard Specifications for Public Works Construction, 2012 Edition, are hereby amended and supplemented as follows for this public work and improvements:
1-2 DE
FINITIONS
The respective definitions in Subsection 1-2 of the following quoted words are amended to read as follows:
"AGENCY", "CITY", or "OWNER" shall mean the City of Burbank.
"BOARD" OR "COUNCIL" shall mean the Council of the City of Burbank.
“CONTRACT DOCUMENTS” shall mean Including but not limited to; the Contract, any Addendum (which pertain to the Contract Documents), Notice Inviting Bids, Instructions to Bidders; Bid (including documentation accompanying the Bid and any post -bid documentation submitted prior to the Notice of Award) when attached as an exhibit to the Contract, the Bonds, permits from jurisdictional regulatory agencies, the Special Provisions, the Plans, Standard Plans, Standard Specifications, Reference Specifications, and all Modifications issued after the execution of the Contract. The terms “Contract Documents” and “Bid Schedule” shall be used interchangeably.
"ENGINEER" shall mean the person assigned as the City’s PROJECT MANAGER or their designee, and the terms may be interchangeable.
“SPECIAL PROVISIONS” shall be amended to add a second sentence. “Special Provisions may also include City of Burbank Additions and Amendments to the Standard Specifications for Public Works Construction.”
“
WORKING DAY” is amended by adding thereto the following paragraph:
"The hours of a working day shall be from 7:00 a.m. to 3:30 p.m. The Design-Builder shall pay for any inspection other than during the working day. If agreed upon by the City, Inspection Team, and Design-Builder, the hours constituting a work day may be modified.
If the hours of a working day are modified, the City reserves the right to require the Design- Builder to return to the working hours shown above for any reason. In no event shall the work day exceed 8 hours and in no event shall the work week exceed 40 hours unless overtime is paid as provided for in California Labor Code Section 1815."
Subsection 1-2 is amended by adding thereto the following:
"CITY MANAGER" shall mean the person holding the position of City Manager of the City of Burbank.
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 33
“ELEVATION” - The figure given in the Specifications or upon the Plans or Drawings, after the word "ELEVATION", or an abbreviation of it, shall mean distances in feet, as established by the City Engineer, above mean sea level.
“NOTICE OF COMPLETION” shall have the same meaning as provided by Civil Code Section 9204.
“PURCHASING MANAGER” shall mean the person holding the position of Purchasing Manager of the City of Burbank or their designee.
2-3 S
UBCONTRACTS
The sixth paragraph of subsection 2-3.1 is amended to add the following language:
Any hearing required pursuant to Public Contract Code § 4107 dealing with the substitute of a subcontractor shall be conducted by the Engineer whose decision shall be final.
2-4 CO
NTRACT BONDS
The second sentence of the first paragraph of Subsection 2- 4 is amended by inserting therein after the words "in California" the words in parenthesis and comma "(should litigation occur, venue shall be in the Superior Court of Los Angeles County),”.
2-5 P
LANS AND SPECIFICATIONS
Subsection 2-5.
2. "Precedence of the Contract Documents." Amend by adding thereto the following:
k) Instructions to Bidders
l) Notice Inviting Bids
2-9 SU
RVEYING
Subsection 2-9.2. "Survey Service." Delete the three paragraphs and add the following paragraph:
All construction surveying shall be provided by the Design- Builder at their expense, in accordance with Subsection 2- 9.3 entitled "Private Engineers". Their surveyor shall be currently licensed in the State of California. The City will provide to the surveyor at no charge all necessary record information (i.e. tract maps, bench marks, centerline ties, etc.).
2-10 AUT
HORITY OF THE BOARD AND THE ENGINEER
The first paragraph is amended, to add at the end of the last sentence: “…or his designee.”
2-12 SPECIAL NOTICES
Section 2-12 (c) is added to read as follows:
(c) Unless otherwise required by law, E -Mail is an acceptable method of service of any notice.
3-2 CHANG
ES INITIATED BY THE AGENCY
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 34
Subsection 3-2. 1. "General." Amend by adding thereto the following:
"Minor changes in the work which involve no extra cost may be approved, authorized, and ordered by the Engineer. No other change shall be made nor extra work done except, (1) with the prior approval thereof by the Engineer and, (2) upon a prior written order therefor executed by the City Manager in conformity with the following provisions:
"The City Manager or their designee may execute without authorization by the Council changes and extra work not exceeding in total cost the sum of $10,000 or ten percent (10%) of the amount set forth in the Bidder's Proposal, whichever is the greater, provided that the total Contract price for the work or improvement, including all changes and extra work orders, is not thereby caused to exceed the budgetary appropriation therefor.
"No claim for any change or extra work shall be valid or will be recognized by the City, and no compensation therefor will be paid by the City unless the changes or extra work, or both, were approved and ordered as provided hereinabove."
3-3 E
XTRA WORK
Subsection 3-3.2.3 "Markup". Amended in its entirety to read as follows:
(a) Work by Design-Builder. The following percentages shall be added to the Design- Builder's costs and shall constitute the markup for all overhead and profits:
1) Labor 20
2) Materials 15
3) Equipment Rental 15
4) Other Items and Expenditures 15
To the sum of the costs and markups provided for in this subsection, 1 percent shall be added as compensation for bonding.
(b) Work by Subcontractor. When all or any part of the extra work is performed by a Subcontractor, the markup established in 3- 3.2.3(a) shall be applied to the Subcontractor's actual cost of such work. A markup of 10 percent on the first $5,000 of the subcontracted portion of the extra work and a markup of 5 percent on work added in excess of $5,000 of the subcontracted portion of the extra work may be added by the Design-Builder.
4-1
.6 TRADE NAMES OR EQUALS
The second paragraph is amended to add the following first sentence: Whenever any particular material, process or equipment is indicated by patent, proprietary or brand name, or by name of manufacturer, such wording is used for the purpose of facilitating its description and shall be deemed to be followed by the words or equal.
6-2 P
ROSECUTION OF WORK
Section 6-2 is amended by adding a new third paragraph to read as follows:
The City shall provide timely notification to the Design-Builder of the receipt of any third party claim relating to the contract.
6-5 T ERMINATION OF CONTRACT
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 35
Replace "Board" with "City Manager or their designee."
6-7 T IME OF COMPLETION
Subsection 6-7.1. “General” remove in its entirety and replace with the following paragraph:
“The Contractor shall complete the Work within the time specified in the Contract or the Special Provisions. The Contractor shall complete each portion of the Work within the time specified as in the Contract or the Special Provisions for such portion. Unless otherwise specified in the Contract or the Special Provisions, the time of completion of the Contract shall be expressed in working days.”
6-8 CO
MPLETION ACCEPTANCE, AND WARRANTY
Subsection 6-8.2 “Acceptance”. Amend in its entirety to read as follows:
“Acceptance will occur after all of the requirements contained in the Contract Documents have been fulfilled. All equipment, materials, and supplies delivered to the job site, and structures, equipment and materials constructed or installed, and all work done under this Contract, shall be and remain the property of the Contractor until final completion of the Work and its formal acceptance by the City, except as otherwise provided in Subsection 6- 4 of said Standard Specifications. If, in the Engineer’s judgment, the Contractor has fully performed the Contract, they may accept the Work and may file a Notice of Completion with the County Recorder.”
6-9 L
IQUIDATED DAMAGES
The sum of two thousands and five hundreds dollars ($2500) per day for liquidated damages set forth in both paragraphs of Subsection 6- 9 is amended to read, "the sum of two thousands and five hundreds dollars ($2500) per day. "
7-2 L
ABOR
Subsection 7-2.2. "Prevailing Wages" Amended in its entirety to read as follows:
A. "There shall be paid each craft or type of worker employed by the Contractor or Subcontractor engaged in work under this Contract not less than the applicable wage rate, including legal holiday and overtime rates, found and determ ined by the Director of the Department of Industrial Relations for the State of California, prior to the publication of the Notice to Bidders, in accordance with the Standards set forth in Section 1773 of the California Labor Code. Copies of the prevailing rate of per diem wages are on file in the office of the Purchasing Administrator for the City of Burbank, 301 East Olive Avenue, Burbank, California, and such copies will be made available to any interested party upon request. Copies are also available on the Internet at http://www.dir.ca.gov/DLSR/PWD. The Adobe Acrobat Reader (available at http://www.adobe.com ) is required to view these pages. (From a memo sent by the Department of Industrial Relations 8/22/00)
"
The Contractor will comply with the provisions of Section 1775 of the Labor Code which, so far as material hereto, reads as follows: 'Except as otherwise provided by law, the contractor and any subcontractor under the contractor shall, as a penalty to the state or political subdivision on whose behalf the contract is made or awarded, forfeit not more than two hundred dollars ($200) for each calendar day, or portion thereof, for each worker paid less than the prevailing wage rates as determined by the director for the work or craft in which the worker is employed for any public work done under the contract by the contractor or subcontractor.’
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 36
"The Contractor and each Subcontractor performing work, in conjunction with this Contract shall comply with the provisions of Section 1776 of the Labor Code of the State of California.
B. The wage rates specified in said wage rate schedule are minimum rates only, and the City will not consider any claims for additional compensation made by the Contractor or Subcontractor because of payment by the Contractor or Subcontractor or any wage rate in excess of the applicable rate contained in this Contract.
C. Eight hours labor constitutes a legal days' work for each worker employed in the execution of this Contract. The time of service of any worker employed in the execution of this Contract is limited and restricted to eight hours during any one calendar day, and forty hours during any one calendar week, except as hereinafter provided. The Contractor shall, as a penalty to the
City of Burbank, forfeit Twenty-five Dollars ($25) for each worker employed in the execution of this Contract by the Contractor or by any Subcontractor for each calendar day during which such worker is required or permitted to work more than eight hours in any one calendar day and forty hours in any one calendar week in violation of the provisions hereof.
"Notwithstanding the provisions of Sections 1810 to 1814 of the Labor Code of the State of California, and notwithstanding the foregoing stipulations inserted herein pursuant to the requirements of said Sections, work performed by employees of the Contractor or any Subcontractor in excess of eight hours per day, and forty hours during any one week, in the execution of this Contract, shall be permitted upon compensation for all hours worked in excess of eight hours per day, and forty hours during any one week, at not less than one and one-half times the basic rate of pay".
D. The Contractor shall pay to workers needed to execute the Contract the per diem wages as defined in Labor Code Section 1773.9.”
E. Only apprentices who are in training under apprenticeship standards and written apprentice agreements complying with Division 3, Chapter 4, Section 3070, et seq., of the Labor Code, are eligible to be employed in the performance of this Contract.
"The term 'apprentice' as used in these Contract Documents means a person at least sixteen years of age who has entered into a written agreement with an employer or their agent, an association of employers, or an organization of employees, or a joint committee representing both in conformity with the provisions of Division 3, Chapter 4, Section 3070, et seq., of the Labor Code.
"Every apprentice employed in performance of this Contract shall be paid the standard wage paid to apprentices under the regulations of the craft or trade at which he is employed and shall be employed only at the work of the craft or trade to which he is indentured.
"The Contractor or any Subcontractor performing any of the work under this Contract who employs journeymen or apprentices in any apprenticeable craft or trade and is not contributing to a fund or funds to administer and conduct the apprenticeship program in any such craft or trade in the area of the site of the public work to be constructed or performed under this Contract, to which fund or funds other Contractors in that area are contributing, shall contribute to the fund or funds in each craft or trade in which he employs journeymen or apprentices on the public work in the same amount or upon the same basis and in the same manner as other Contractors do, but where the trust fund administrators are unable ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 37
to accept such funds, Contractors not signatory to the trust agreement shall pay a like amount to the California Apprenticeship Council.
"The Contractor or Subcontractor may add the amount of such contribution in computing their Bid for the Contract. The Contractor shall be responsible for complying with Section 1777.5 of the Labor Code for all apprenticeable occupations.
"The Contractor shall conform to all requirements of Sections 1777.5 and 1777.6 of the Labor Code.
F. For further requirements related to matters specifically mentioned above, reference is hereby made to Division 2, Part 7, Chapter 1 of the Labor Code, with which compliance is required and to which reference is hereby made for further particulars."
7-3 L
IABILITY INSU RANCE
Delete the entire section and replace it with the following:
7-3 LIABILITY INSURANCE AND INDEMNIFICATION
7-3.1 Liability Insurance . Upon execution of this Contract, and prior to the Contractor commencing any work or services with regard to the Work, the Contractor shall furnish the City a policy or certificate of general liability insurance in which the City is named as an additional insured via an Additional Insured Endorsement on an ISO form CG 20 10 11 85, or an ISO form CG 20 10 (or a substitute form providing equivalent coverage as approved by the City) and an ISO form CG 20 37 (or a substitute form providing equivalent coverage as approved by the City). Notwithstanding any inconsistent statement in the policy or any subsequent endorsement, the City shall be the additional insured covering the Work, whether liability is attributable to the Contractor or the City. The policy shall insure the City, its officers, employees, and agents, while acting within the scope of their duties on the Work, against all claims arising out of or in connection with the Work, except as provided in Section 6- 10. Coverage shall be maintained for the life of the contract, through the Notice of Completion, plus one (1) additional year.
The coverage available to the City as Additional Insured shall not be less than a combined single limit policy with aggregate limits of at least five million dollars ($5,000,000). All coverage shall be placed with an insurance company duly admitted to do business in the State of California by the Insurance Commissioner. All insurance carriers must be a minimum of “A-” rated as established by AM Best or equivalent. Coverage shall be afforded to the Additional Insured whether or not a claim is in litigation. The insurance coverage required under this Work shall be of sufficient type, scope and duration to ensure coverage for City for liability related to any manifestation date within the applicable statutes of limitation and/or repose which pertain to any work performed by or on behalf of the City in relation to the Work
Each Certificate of Insurance shall provide that the insurer must give City at least 30 days prior written notice of cancellation and termination of coverage. Not less than two weeks prior t o the expiration, cancellation or termination of any such policy, the General Contractor shall supply City with a new and replacement Certificate of Insurance and Additional Insured endorsement as proof of renewal of said original policy. Said new and replacement endorsements shall be similarly endorsed in favor of as set forth above.
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 38
In the event any policy of insurance required under this Contract does not comply with these requirements or is canceled and not replaced, City has the right but not the du ty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Contractor.
Such insurance shall not limit or qualify the liabilities and obligations of the Contractor 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 Contractor's insurance is primary for all purposes despite any conflicting provision in the Contractor's policies to the contrary.
Failure to maintain and provide acceptable evidence of the required insurance for the required period of coverage shall constitute a breach of contract, upon which the City may immediately terminate or suspend the agreement.
Contractor warrants that it shall require all subcontractors on the Work to comply with the provisions of this Section, as amended, including, but not limited to, naming Contractor and City as additional insureds on all subcontractor general liability insurance policies.
In addition to general liability insurance, Contractor shall also furnish the City a certificate of insurance showing that it has Automobile Liability Insurance in an amount of not less than One Million Dollars ($1,000,000) combined single limit for bodily injuries and property damage, including all owned, hired and non-owned vehicles.
Blanket insurance policies complying with the above requirements carried by the Contractor, or acceptable and approved certificates thereof, may be substituted for specific policies upon approval by the City.
Cost of this insurance shall be included in the Contractor’s Bid.
7-3.2 Indemnification. The City, its 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 material 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 Contractor or its Subcontractors and their Sub- 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 Contractor 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 the negligence or willful misconduct of the City, or of its agents, servants, or independent contractors.
The Contractor will defend and indemnify the City, its officers, employees and agents against and will hold and save them and each of them harmless from any and all actions, claims, damages to persons or property, penalties, obligations or liabilities that may be asserted or claimed by any person, firm, entity, corporation, political subdivision or other organization arising out of or in connection with the Work, operation or activities of the Contractor, its agents, employees, Subcontractors, Sub- Subcontractors, or invitees, provided for herein, (but excluding such actions, claims, damages to persons or property, penalties, obligations, or liabilities arising from the negligence or willful misconduct of the ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 39
City, its Council, agents, servants or independent contractors who are directly responsible to the City) and in connection therewith:
A. The Contractor will defend any action or actions filed in connection with any of said claims, damages, penalties, obligations or liabilities and will pay all costs and expenses, including attorneys' fees incurred in connection therewith.
B. The Contractor will promptly pay any judgment rendered against the Contractor 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 Contractor hereunder; and the Contractor agrees to save and hold the City, its officers, employees and agents harmless from any such judgment.
C. In the event the City is made a part of any action or proceeding filed or prosecuted against the Contractor for such damages or other claims arising out of or in connection with the Work, operation or activities of the Contractor hereunder, the Contractor agrees to pay to the City any and all costs and expenses incurred by the City in such action or proceeding together with reasonable attorneys' fees.
Money due the Contractor under and by virtue of the Contract as shall be considered necessary by the City may be retained by the City until disposition has been made of such actions or claims for damages as aforesaid.
7-4 W
ORKERS’ COMPENSATION
The first paragraph is amended, after the first sentence, to add: “The policy shall be endorsed to waive all rights of recovery against the City, members of the City Council, and officers, employees and agents of the City.
7-5 PER
MITS
Remove in its entirety and replace with the following:
A. The City will apply for the Plan check or checks, and the Contractor will take out the general construction permit or permits.
B. The Contractor must obtain a no fee permit from the City of Burbank. The Contractor shall be responsible for the payment of any fees for licenses, inspections, or permits that are required by any other public entity. Further, the Contractor shall be responsible for the payment of any applicable City of Burbank license or inspection fees. Contractors shall coordinate exact requirements with the City.
7-8 W
ORK SITE MAINTENANCE
Subsection 7-8.1 “General” is amended to add the following:
“7-8.1.1 Vermin Control
During the progress of the Work, Contractor will take necessary precautions to control vermin at the job site and wherever equipment and/or materials are stored.
At the time of acceptance, structures entirely constructed under the Contract shall be free of rodents, insects, vermin, and pests. Necessary extermination work shall be arranged and paid for by the Contractor as part of the Work within the Contract time, and shall be ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 40
performed by a licensed exterminator in accordance with requirements of governing authorities. The Contractor shall be liable for injury to persons or property and responsible for the elimination or offensive odors resulting from extermination operations.
7-10 P
UBLIC CONVENIENCE AND SAFETY
Subsection 7-10.1.1. "General":
The following shall be added to subsection 7.10.1.1:
“Except in the event of an emergency, the Contractor shall give at least 72 hours advance notice prior to closing, partially closing or reopening, any street, alley, or other public thoroughfare, to the Police, Fire, Traffic and Engineering Departments, and comply with their requirements. Deviations must first be approved in writing by the Engineer.”
"Warning signs, lights, and devices shall be installed and displayed in conformity with the 'Manual of Uniform Traffic Control Devices 2012, California Part 6', issued by the State of California, Department of Transportation and as directed by the Engineer.
"If the Contractor fails to provide and install any of the signs or traffic control devices required hereby or ordered by the Engineer, the Engineer may cause such signs or traffic control devices to be placed by others, charge the costs therefor against the Contractor, and deduct the same from the next progress payment.
"In commercial areas, when holes created by removals are to remain open for more than twenty-four (24) hours, or when inclement weather causes a muddy condition in the removal area, ramps of temporary asphaltic concrete shall be constructed for public convenience or to eliminate a hazardous condition as directed by the Engineer."
9-3 PA
YMENT
Subsection 9-3.1. “General”. In the ninth paragraph, regarding stop notices, add the following after the last sentence: “All Preliminary Notices and Stop Notices should be delivered to:
City of Burbank
Financial Services – Purchasing
301 E. Olive Ave., Suite 305
Burbank, CA 91502
ATTN: Lisa Villegas
A copy shall be sent to:
City of Burbank
Burbank Water and Power Department – Water Engineering
164 W. Magnolia Boulevard
Burbank, CA 91502
ATTN: Bassil Nahhas, Principal Civil Engineer
Subsection 9- 3.1. "General." In the last paragraph, the words and figures "At the expiration of 35 days from the date of acceptance of the performance of the Contract by the Board," are amended to read, "At the expiration of 60 days from the date of acceptance of the work by the Engineer".
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 41
Subsection 9-3.2. Partial & Final Payment. To the third paragraph add and insert the following paragraphs:
"No payment need 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 their judgment, the total value of the work performed since the last estimate is less than five hundred dollars ($500.00). In addition to the above, the City may withhold an amount s ufficient in the judgment of the Engineer to cover:
"(1) Payment which may be due and payable for just claims against the Contractor or any Subcontractor for labor, material or equipment in the performance of this Contract.
"(2) For defective or noncomplying work not remedied.
"(3) For failure of the Contractor to make proper payments to their Subcontractors.
"Failure to withhold such amounts shall not affect any rights or obligations of the Contractor or sureties under this Contract.
"In lieu of five percent (5%) retention from any payments due the Contractor, as specified above, the Contractor, at their request and expense and after so informing the City in writing, pursuant to Section 22300 of the Public Contract Code, may deposit securities pledged in favor of the City equivalent to the amount to be ultimately withheld, with the City or with a state or federally chartered bank as the escrow agent who will pay such monies to the Contractor upon written notice by the City of the satisfactory completion of the Contract. The Contractor shall be the beneficial owner of any securities substituted for monies withheld and shall receive any interest on the monies.
"The City's making of any payment to the Contractor under this Contract shall not relieve the C ontractor of Contractor's guarantees, obligations or responsibilities under this Contract, or of 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 completed and formally accepted by the City.
"The payment of the final amount due under the Contract, and the adjustment and payment for any extra work done and for any changes in work, shall fully release and discharge the City of Burbank, its officers, agents and employees, from any and all claims or liability on account of the work performed under the Contract, and any changes thereto and any extra work."
Section 9-3 is amended to add the following:
9- 3.5 “Claim Resolution”
Claim resolution 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.
Section 9204 of the Public Contract Code reads as follows:
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 42
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 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.
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 43
(v) The Military Department as 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) If 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.
(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 c laimant 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 met 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 dispute 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 ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 44
written statement. Any disputed portion of the claim, as identified by the contractor 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 t o 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 by 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.
(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. Withing45 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.
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 45
(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, mediation and proceed directly to the commenc ement 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, 2027, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2027, deletes or extends that date.
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 46
EXHIBIT 1
BWP CONTRATOR INFORMATION REQUEST
1.0 - GENERAL INFORMATION
Date this form was completed: Form was completed by:
Company Name: Telephone: Fax:
Street Address:
Mailing Address (if different from street address):
OFFICERS YEARS WITH COMPANY
President:
Vice President:
General Manager / Operations Manager:
Safety Manager / Representative:
Email:
How many years has your organization been in business under your present firm name? Parent Company Name:
City, State, Zip:
List all Subsidiaries:
Under current management since (date):
Federal Tax ID No.
2.0 - INSURANCE INFORMATION
Contact for insurance information:
Title:
Telephone:
Fax:
Insurance Carrier(s):
Name Type of Coverage Telephone
Are you self-insured for Worker’s Compensation Insurance? Yes □ No □
ATTACHMENT 4
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3.0 - ORGANIZATION
Form of business: Sole Owner □ Partnership □ Corporation □ Percent Minority/Female Owned: EEO Category:
Contractor’s License No. / License Expiration Date:
Describe services you wish to perform for BWP:
SIC Code:
Construction Original Equipment Manufacturer & Maintenance Construction Design Service Work (e.g., janitorial, clerical, etc.) Original Equipment Manufacturer & Installer Manpower and Resource Project Maintenance Maintenance
Other (Explain)
Work Categories: (Check the categories in which you are interested in bidding and in which you are qualified to perform work. Attach additional information clarifying your capabilities and specialties.) C = denotes work done by company employees S = denotes work done by subcontractors
C S C S
Acoustic emission Heat tracing
Air conditioning/refrigeration Heat treating
Asbestos abatement High alloy welding (list type)
Asphalt High-voltage/high line
Buildings (remodeling) Hot tap/line stops
Buildings (new/steel, brick, block,
other)
Infrared scanning
Cathodic Protection Inspection & testing
Civil Instrumentation
Civil/Soils Insulation
Cleaning (industrial) Lead abatement
Cleaning (janitorial) Lead lining
Column Scanning Leak sealing (online)
Comfort Cooling/HVAC Linings/coatings
Concrete Metal
Consulting (chemical) Mobile equipment repair
Consulting (controls) New construction
Consulting (electrical) Non-metallic materials
Consulting (mechanical) Painting
Consulting (metallurgical) Paving
Consulting (other) Pipe fabrication
Cooling Tower Process refrigeration
Process Control Systems Refractory/acid brick
Demolition/Dismantling Rigging/equipment erection
Eddy Current Testing Rotating equipment
Electrical Scaffolding
Electrical Ground Inspection Scale maintenance
Excavation/Grading Structural steel fabrication/erection Exchanger Retubing Tank/vessel code
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 48
Fiberglass Inspection Tanks – field erection
Field Maintenance Valve replacement/repair
Glass Lining OTHER (describe)
Grounding systems OTHER (describe)
Describe additional services performed:
List other types of work within the services you normally perform that you subcontract to others:
Does your company have major equipment (i.e., cranes, forklifts) available for work at this site? Yes □ No □
If so, attach a list of this equipment and the method of establishing competency to operate.
Will you be using high pressure hoses (hoses operating at >200 psig) at this site? Yes □ No □ If so, please provide a health and safety plan, documents pertaining to a hose management plan and any other documents/program that would be associated with a hose management plan.
Do you normally employ? Union Personnel □ Non-union Personnel □ Leased Personnel □ If union, list trades/locals:
List current Collective Bargaining Agreements (if any) and expiration date(s):
Average number of employees for last 3 years?
4.0 - COMPANY WORK HISTORY
Annual dollar volume for
the past three years: 20____
$_______________
20____
$_______________
20____
$______________
Largest job during the last 3 years: $
Your firm’s desired project size: Maximum:
Minimum:
D&B Financial Rating:
Annual Sales:
$
Net Worth:
$
Major jobs in progress:
Customer/Location Type of Work Size
$M Customer Contact Telephone
Major jobs in the past three years:
Customer/Location Type of Work Size
$M Customer Contact Telephone
Are there any judgments, claims, or legal suits pending or outstanding against your company? Yes □ No □
If yes, please attach details.
Are you now or have you ever been involved in any bankruptcy or reorganization proceedings? Yes □ No □
If yes, please attach details.
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 49
5.0 SAFETY & HEALTH PERFORMANCE
Workers Compensation Experience Modification Rate (EMR) Data:
EMR State of Origin? EMR for last three years:
EMR is:
Interstate rate 20__
_
Intrastate rate 20__
_
Monopolistic State rate 20__
_
Dual rate EMR Anniversary Date:
Injury & illness data:
Employee hours worked last 3 years (excluding subcontractors) Year 20___ _
20___
_
20___
_
Field
hrs
Total
hrs
OSHA LOGS - IMPORTANT
(1) Please provide to us your OSHA300 and 300a Logs for the past 3 years. (2) Complete the matrix below (excluding subcontractors) using your OSHA 300 Forms from the past 3 years (if you are not required to maintain these forms, provide Worker’s Compensation insurance information itemizing all claims for past 3 years)
(3) Data must be accurate and applicable to the work in this region or area. 20_____ 20_____
20_____
No. Rate No. Rate No. Rate
Injury related fatality:
Rate = T otal Col. 1 x 200,000
Total Employee Hours
Number of cases involving days away from work and/or restricted work activity or both:
Rate = T otal Col. 2 x 200,000
Total Employee Hours
Number of cases involving only lost workday case injuries involving days away from work:
Rate = T otal Col. 3 x 200,000
Total Employee Hours
Injuries involving medical treatment only:
Rate = T otal Col. 6 x 200,000
Total Employee Hours
Total OSHA Recordable injury rate:
Rate = ( Total Col. 1+2+6) x 200,000
Total Employee Hours
Illness related fatality:
Rate = T otal Col. 8 x 200,000
Total Employee Hours
Number of case illnesses involving days away from work, or days of restricted work activity, or both:
Rate = T otal Col. 9 x 200,000
Total Employee Hours
Number of case illnesses involving days away from work:
Rate = T otal Col. 10 x 200,000
Total Employee Hours
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 50
Illnesses not involving lost workdays or restricted workdays:
Rate = T otal Col. 13 x 200,000
Total Employee Hours
Total OSHA Recordable Illness Rate:
Rate = ( Total Col. 1+2+6+8+9+13) x 200,000
Total Employee Hours
Have you received any regulatory (i.e., EPA, OSHA) citations in the last 3 years? Yes □ No □ (If yes, please attach copies)
REGULATORY CITATIONS
List all regulatory citations for previous 3 years (OSHA, AQMD, RWQCB, EPA, etc.).
Year Agency/Citation(s)
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 51
6.0 EHS MANAGEMENT
Has your Company CEO signed a Letter of Commitment for EHS? Yes □ No □ Highest ranking safety/health professional in the company:
Title:
Telephone:
Fax:
Do you have or can you provide:
Full-time Safety/Health Director?
Full-time Site Safety/Health Supervisor?
Full-time Job Safety/Health Coordinator?
Safety/health incentive program?
Company-paid safety/health training?
Yes _________
Yes _________
Yes _________
Yes _________
Yes _________
No _________
No _________
No _________
No _________
No _________
EHS PROGRAMS, PROCEDURES, & TRAINING
IMPORTANT INSTRUCTIONS: Please include your EHS Manual in its entirety, which may include but not be limited to the following items, as applicable to your business. For all items marked “Yes” for the remainder of Appendix A, provide copies of all current procedures and records for the past year (proof of all training, inspections, safety meetings, etc.).
Do you have written programs for the following?
- Accident/Incident/Near Miss Reporting/Injury & Illness Reporting & Recording Yes No - Asbestos Yes No
- Back Injury Prevention Yes No
- Compressed Gas Cylinders Yes No
- Concrete Construction Yes No
- Confined Space Entry Yes No
- Demolition Yes No
- Electrical Equipment Grounding Assurance Yes No
- Electrical Safety Yes No
- Emergency Preparedness, including Evacuation Plan Yes No - Employees Right-to-Know (Hazard Communication and MSDSs) Yes No - EMR documentation from your insurance carrier Yes No - Equipment Isolation (Lockout/Tagout) Yes No
- Fall Protection Yes No
- Fire Protection, including portable fire extinguishers Yes No - First Aid/CPR Yes No
- Hazard Communication Yes No
- Hazardous Waste Operations (Hazwoper) Yes No
- Health & Safety Inspection Yes No
- Hearing Conservation Yes No
- Heavy Equipment Safety (cranes, personnel-lifts, forklifts, grading equipment, etc.)
Yes No
- Housekeeping Yes No
- Lead Exposure Yes No
- New Hires, including Health & Safety Orientation (outline) Yes No - Personal Protective Equipment Yes No
- Portable Electrical/Power Tools Yes No
- Powered Industrial Vehicles (Cranes, Forklifts, etc.) Yes No - PSM (Process Safety Management), including 29 CFR 1910 (Highly Hazardous Chemicals,
Explosives and Blasting Agents)
Yes No
- Respiratory Protection Yes No
- Rigging Safety Yes No
- Scaffold and Ladder Safety Yes No
ATTACHMENT 4
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City of Burbank Progressive Design Build Agreement, RFP 1511 Page 52
- Steel Erection Yes No
- Substance Abuse Program (include proof of current consortium membership) Yes No - Supervisor Health & Safety Program (outline) Yes No - Trenching, Shoring and Excavation Yes No
- Unsafe Condition Reporting Yes No
- Vehicle Safety Yes No
- Welding and Cutting Yes No
TRAINING
- Have employees been trained in appropriate job skills? Yes No - Do you have a process to ensure your workers are qualified and have skills to perform their tasks?
Yes No
- Are employees’ job skills certified where required by regulatory or industry consensus standards?
Yes No
- Is there a Training Matrix used to track and maintain up-to-date training of all employees? If Yes,
Please provide a copy. This is essential information that must be provided in order to proceed.
Yes No
- Please provide a copy of all training records for the past year for all employees who worked at BWP
IIPP (Injury/Illness Prevention Program)
If working in the state of California, do you have an IIPP? If Yes, does it address the following:
Yes No
- Accident/incident/exposure investigation Yes No
- Accountabilities and responsibilities for managers, supervisors, and employees Yes No - Communication Yes No
- Employee participation Yes No
- Hazard assessment, recognition, control, and correction Yes No - Management commitment and expectations Yes No
- Periodic health & safety performance appraisals for all employees Yes No - Recordkeeping Yes No
- Resources for meeting health & safety requirements Yes No - Training and instruction Yes No
Does the program satisfy your responsibility under the law to:
- Ensure your employees follow the safety rules of the site Yes No - Advise owner of unique hazards presented by contractor’s work and hazards found by contractor
Yes No
MEDICAL MONITORING
- Do you conduct medical exams for pre-placement Yes No - Do you conduct audiograms (hearing tests) Yes No
- Do you conduct medical exams for pulmonary function Yes No - Do you have personnel trained to perform first aid and CPR Yes No
OPERATING EQUIPMENT (cranes, forklifts, etc)
- Do you define EHS specs for acquisition of materials/equipment Yes No - Do you conduct inspections on operating equipment in compliance with regulations
Yes No
- Do you maintain operating equipment in compliance with regulatory requirements Yes No - Do you maintain applicable inspection/maintenance certification records for operating equipment
Yes No
ATTACHMENT 4
A4-52
City of Burbank Progressive Design Build Agreement, RFP 1511 Page 53
PPE
- Is applicable PPE provided for employees Yes No
- Do you have a program to ensure that PPE is inspected and maintained Yes No - Are employees trained in the proper use, inspection, and maintenance of PPE Yes No
RESPIRATORS
- Have employees been medically approved to wear respirators Yes No - Have employees been respirator fit tested Yes No
- Are employees trained in the proper use, inspection and maintenance of respirators
Yes No
SAFETY MEETINGS
- Do you hold site safety meetings
Frequency
Yes No
- Are the health and safety meetings documented? Yes No
SUBCONTRACTORS
- Do you use subcontractors? Yes No
- Do you use health and safety performance criteria in selection of subcontractors? Yes No - Do you evaluate the ability of subcontractors to comply with applicable EHS requirements as part
of the selection process?
Yes No
- Do your subcontractors have a written EHS Program? Yes No
SUBSTANCE ABUSE
- Do you have a substance abuse program? If yes, does it include the following: Yes No - DOT (Dept of Transportation) testing Yes No
- Pre-placement testing Yes No
- Random testing Yes No
- Testing for cause Yes No
- Do your employees read, write, and understand English such that they can perform their job tasks
safely without an interpreter
Yes No
AUDITS, INSPECTIONS, CORRECTIVE ACTION
- Do you conduct EHS program audits Yes No
- Do you conduct EHS field inspections Yes No
- Do you have a corrective action process for addressing individual EHS performance deficiencies
Yes No
- Are corrections of deficiencies documented Yes No
ATTACHMENT 4
A4-53
City of Burbank Progressive Design Build Agreement, RFP 1511 Page 54
PERSON CERTIFYING INFORMATION ON THIS PROTOCOL
I agree. All information contained in this protocol is correct and true to the best of my knowledge.
Name/Title (print):
___________________________________________________________________________
Signature: ___________________________________________________ Date:__________________________
Telephone: ___________________________________________________ Fax:___________________________
ATTACHMENT 4
A4-54
City of Burbank Progressive Design Build Agreement, RFP 1511 Page 55
Attachment 3
Forms of Bonds
FAITHFUL PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENT:
That we, as Principal, and ___________________________ as Surety, are held and firmly bound to the City of Burbank in the sum of ____________ ______________________________________________________________________ __ Dollars ($__________________), lawful money of th e United States of America, for the payment of which sum, well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, by these present.
T
he condition of the above obligation is such that, whereas said Principal has been awarded and is about to enter into the annexed Contract with the City of Burbank for the [INSERT NAME OF CONTRACT], and to which reference is hereby made for all particulars, and is required by said City of Burbank to give this bond in connection with the execution of said Contract;
NOW, THEREFORE, if said Principal as Contractor under said Contract fails to perform all of the covenants, terms, conditions and stipulations of said Contract on its part to be done and perfo rmed at the times and in the manner specified therein, or if all materials used and workmanship employed in the performance of the Contract shall not be free from defects, or if any defects should appear therein within a period of one year from the date of acceptance by the City, the work under the Contract and the said Principal and Contractor shall fail to repair, replace and correct such defects at his or its own cost and expense and to the satisfaction of the Engineer within thirty (30) days after notic e thereof by the City, said Principal and Surety will pay the City of Burbank the amount of all its loss, cost, expense, damages and liability on account of any and all of the foregoing, not exceeding, however, the sum set forth above, and in case suit is brought upon this bond said Surety shall also pay a reasonable attorney's fee to be fixed by the court.
The said Principal and Surety agree that any change, extension of time, alterations or additions to said Contract or work or materials required thereunder shall not in any manner release either the Principal or the Surety from the obligations of this bond; and said Surety hereby waives notice of any such change, extension of time, alteration or additions to said Contract or performance required thereunder.
ATTACHMENT 4
A4-55
City of Burbank Progressive Design Build Agreement, RFP 1511 Page 56
IN WITNESS WHEREOF, the Principal and the Surety have executed this instrument in duplicate this ________________ day of ________________, 20___.
_________________________________
Surety Principal
By_______________________________ By_________________________________
_________________________________ ___________________________________ Print Name Print Name/Title
_________________________________
Address
_________________________________
(_______)_________________________
Telephone Number
(_______)_________________________
Fax Number
APPROVED AS TO FORM this ____ day of __________, 20___.
Office of the City Attorney
By:
Name:
Title:
NOTARIAL CERTIFICATE OF PRINCIPAL AND ATTORNEY IN FACT AND SEAL OF SURETY MUST BE ATTACHED.
ATTACHMENT 4
A4-56
City of Burbank Progressive Design Build Agreement, RFP 1511 Page 57
PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS,
That we, as Principal, and .____________________________ as Surety, are held and firmly bound unto City of Burbank hereinafter called "OWNER," in the sum of
Dollars ($ ), for the payment of which sum, well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents.
T
he condition of the above obligation is such that, whereas said Principal has been awarded and is about to enter into the annexed Contract with the City of Burbank for the [INSERT NAME OF CONTRACT], and to which reference is hereby made for all particulars, and is required by said City of Burbank to give this bond in connection with the execution of said Contract;
NOW, THEREFORE, if said CONTRACTOR, its Subcontractors, its heirs, executors, administrators, successors, or assigns, shall fail to pay (a) for any materials, provisions, equipment, or other supplies used in, upon, for or about the performance of the WORK contracted to be done under the Contract, or (b) for any work or labor thereon of any kind contracted to be done under the Contract, or (c) for amounts due under the Unemployment Insurance Code with respect to work or labor performed pursuant to the Contract, or (d) for any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of the CONTRACTOR and its Subcontractors under Section 13020 of the Unemployment Insurance Code with respect to such work and labor, in each case, as required by the provisions of Sections 9550-9566 inclusive, of the Civil Code of the State of California and acts amendatory thereof, and sections of other codes of the State of California referred to therein and acts amendatory thereof, and provided that the persons, companies, corporations or other entities so furnishing said materials, provisions, provender, equipment, or other supplies, appliances, or power used in, upon, for, or about performance of the Work contracted to be executed or performed, or any person, company, corporation or entity renting or hiring implements or machinery or power for or contributing to said Work to be done, or any person who performs work or labor upon the same, or any person, company, corporation or entity who supplies both work and materials therefor, shall have complied with the provisions of said laws, then said Surety will pay in full the same in an amount not exceeding the sum hereinabove set forth and also will pay, in case suit is brought upon this bond, a reasonable attorney's fee, as shall be fixed by the Court. This bond shall inure to the benefit of any and all persons named in Section 9100 of the Civil Code of the State of California so as to give a right of action to them or their assigns in any suit brought upon this bond.
ATTACHMENT 4
A4-57
PROVIDED, that any alterations in the WORK to be done or the materials to be furnished, or changes in the time of completion, which may be made pursuant to the terms of said Contract Documents, shall not in any way release said CONTRACTOR or said Surety thereunder, nor shall any extensions of time granted under the provisions of said Contract Documents release either said CONTRACTOR or said Surety, and notice of such alterations or extensions of the Agreement is hereby waived by said Surety.
IN WITNESS WHEREOF, the Principal and the Surety have executed this instrument in duplicate this ________________ day of ________________, 20_____.
_________________________________
Surety Principal
By:_______________________________ By: _____________________________
__________________________________ ________________________________ Print Name Print Name/Title
_________________________________
Address
_________________________________
(______)__________________________
Telephone Number
(______)__________________________
FAX Telephone Number
APPROVED AS TO FORM this ____ day of __________, 20___.
Office of the City Attorney
By:
Name:
Title:
NOTARIAL CERTIFICATE OF PRINCIPAL AND ATTORNEY IN FACT AND SEAL OF SURETY MUST BE ATTACHED.
ATTACHMENT 4
A4-58
Exhibit A
Owner’s Project Criteria
[The design criteria and technical requirements for this project are:
• Attachment F to the RFP
• Attachment G to the RFP
• Attachment H to the RFP
• Attachment I to the RFP
• Attachment J to the RFP ] [NOTE: TO BE ATTACHED.]
ATTACHMENT 4
A4-59
Exhibit B
PHASE I Scope of Services
[Attachment E to the RFP is Exhibit B.] [NOTE TO BE ATTACHED]
ATTACHMENT 4
A4-60