Burbank City Council
January 23, 2024

DESIGN-BUILD AGREEMENT
FOR

SOLAR PROJECT AT HOLLYWOOD

BURBANK AIRPORT RITC
b
etween
T
he City of Burbank
as City
a
nd
B
aker Electric and Renewables, LLC
a limited liability company
as Design-Builder
D
ated: January 23, 2024
ATTACHMENT 2
A2-1

BWP Design-Build 00500-i
RFP No. 1521
Design Build Contract –Solar Project at Hollywood Burbank Airport RITC

DESIGN-BUILD AGREEMENT

TABLE OF CONTENTS
Page #

ARTICLE 1 – CONTRACT DOCUMENTS AND INTERPRETATION ........................... 2

1.1 Definitions. .......................................................................................................... 2

1.2 Contract Documents. .......................................................................................... 2

1.3 Order of Precedence. .......................................................................................... 3

1.4 Entire Agreement. ............................................................................................... 3

ARTICLE 2 – TIME FOR PERFORMANCE .................................................................. 4

2.1 Contract Time. ..................................................................................................... 4

2.2 Liquidated Damages for Design-Builder Delays. ................................................. 4

2.3 Delays and Extensions of Time. .......................................................................... 5

2.3.1 Non-Compensable Delays. ............................................................................ 5

2.3.2 Compensable Delays. .................................................................................... 5

ARTICLE 3 – CONTRACT PRICE ................................................................................ 6

3.1 Lump Sum Price. ................................................................................................. 6

ARTICLE 4 – PAYMENT ............................................................................................... 6

4.1 Cost and Man-Loaded Schedule of Values. ........................................................ 6

4.2 Payment Benchmarks. ........................................................................................ 6

4.3 Payment Benchmarks (Equipment). .................................................................... 7

4.4 Procedures for Payment...................................................................................... 7

ARTICLE 5 – DESIGN-BUILDER'S DUTIES AND RESPONSIBILITIES ..................... 8

5.1 General Scope of Services.................................................................................. 8

5.2 Before Starting Work. .......................................................................................... 9

5.3 Initial Conference. ............................................................................................... 9

5.4 Evaluation of Preliminary Submittals. .................................................................. 9

5.5 Key Personnel. .................................................................................................... 9

5.6 Design Phase Services. .................................................................................... 10

5.7 Construction Phase Services. ........................................................................... 12

5.8 Field Testing. ..................................................................................................... 13

5.9 General Duties and Responsibilities. ................................................................ 14

ARTICLE 6 – CITY'S DUTIES AND RESPONSIBILITIES .......................................... 15

6.1 City’s Designation of Authorized Representative. ............................................. 15

6.2 City’s Right to Make Changes and Award Separate Contracts. ........................ 15

6.3 City’s Right to Stop the Work. ........................................................................... 15

6.4 Suspension by City for Convenience. ............................................................... 15

6.5 City’s Right to Carry Out the Work. ................................................................... 15

ARTICLE 7 – MISCELLANEOUS PROVISIONS ........................................................ 16

7.1 Independent Design-Builder. ............................................................................. 16

7.2 City Employees and Officials. ............................................................................ 16

7.4 Notices. ............................................................................................................. 16 ATTACHMENT 2
A2-2
BWP Design-Build 00500-1
RFP No. 1521
Design Build Contract – Solar Project at Hollywood Burbank Airport RITC

DESIGN/BUILD AGREEMENT

THIS DESIGN/BUILD AGREEMENT (“Agreem ent”) is made and entered into this 23 rd day of January, 2024, by and between the CITY OF BURBANK, a municipal corporation ("City"), and Baker Electric and Renewables, LLC, a limited liability company ("Design-Builder"). Hereinafter, the City and the Design- Builder may be referred to collectively as the “Parties.”

R E C I T A L S:

City issued a Request f or Qualifications and Proposals to obtain services for the design, management and construction for the Solar Project at the Hollywood Burbank Airport (the “Pro ject”) on August 9, 2023, (“RFP Documents”).

Design-Builder submitted Proposal Documents to City in response to the RFP on October 25, 2023 ("Proposal Documents").

Based upon the evaluation of the Proposal D ocuments and information obtained through the competitive selection procedure set forth in the RFP, Design-Builder has been selected by the City, by resolution of the Burbank City Council on January 23, 2024, to perform, either directly, through Design- Build Team Members identified below or pursuant to subcontracts, the services set forth in this Agreement and the Contract Documents. The Design -Build Team Members are:

-- ___Baker Electric and Renewables LLC__________;

-- ____
Pure Power Engineering__________________;

-- ____
TSAC Engineering_______________________; and

-- ___
Kindness General Contractors_______________;

NOW, THEREFORE, in consideration of the covenants hereinafter set forth, the City and Design-Builder mutually agree as follows:

ATTACHMENT 2
A2-3

BWP Design-Build 00500-2
RFP No. 1521
Design Build Contract – Solar Project at Hollywood Burbank Airport RITC

ARTICLE 1 – CONTRACT DOCUMENTS AND INTERPRETATION

1.1 Definitions.

The meaning of all terms used in the Contract Documents and not otherwise defined herein are as defined in the General Conditions.

1.2 Contract Documents.

The “Contract Documents” shall c onsist of the following documents, all of which are either attached hereto as Exhibits or are incorporated into this Agreement by this reference, with the same force and effect as if the same were set forth at length herein:

1. This Agreement, including all Exhibits and attachments;

a. Site Description attached hereto as Exhibit A;
b. The Performance Bond attached hereto as Exhibit B;
c. The Payment Bond attached hereto as Exhibit C;
d. Maintenance Bond attached hereto as Exhibit D;
e. Change and Extra Work Order hereto as Exhibit E;
f. D esign-Builder’s Management and Key Personnel Chart attached hereto as Exhibit F;
g. Subcontractor List and Declaration Form attached hereto as Exhibit G;
h. Subcontractor / Manufacturer Warranty attached hereto as Exhibit H;
i. Burbank Water and Power Field Con tractor Orientation attached hereto as Exhibit I

2. The General Conditions Exhibit J;

3. General Requirements and Technical Specifications for RFP 1521 prepared by City, including Addenda 1 – 5;

4. Standard S pecification Public Works Construction (“Greenbook”), 2021 Edition Parts 2 through 5, ONLY.

5. Construction Documents prepared by Design-Builder and approved by the City as provided herein (index to be attached by Amendment); and

6. The Design-Builder’s Proposal Documents submitted to City on or before October 25, 2023;

7. City’s Purchase Order

ATTACHMENT 2
A2-4

BWP Design-Build 00500-3
RFP No. 1521
Design Build Contract – Solar Project at Hollywood Burbank Airport RITC

1.3 Order of Precedence.

Each of the Contract Documents is an essential part of the Contract. The Contract Documents are intended to be complimentary and to describe and provide for a complete functional and finished system. In the event of conflicts or discrepancies among the Contract Documents, the order of precedence shall be as set forth below:

1. Permits;

2. Change Orders and Modifications;

3. Agreement except Exhibits listed below;

4. Standard Specifications for Pu blic Works Construction “Greenbook”, as applicable

5. Construction Documents prepared by Design- Builder, with Design - Builder Specifications contained therein having precedence over plans, and excluding any deviations from the requirements of the other Contract Documents which have not been ap proved in writing by City;

6. RFP Documents including all addenda (in case of an inconsistency among the RFP Documents, the better quality or greater quantity shall be provided in accordance with the Engineer’s interpretation);

7. Design-Builder’s Proposal Doc uments, to the extent they are consistent with the requirements of the other Contract Documents; and

8. City Purchase Order

1.4 Entire Agreement.

This Agreement together with all other Contract Documents constitutes the entire agreement between the Parties and all other representations or statements theretofore made, verbal or written, are merged herein. Both Parties have, with the assistance of their respective counsel, drafted the provisions contained in this Agreement. Therefore, no provision in this Agre ement will be construed in favor or against any Party by virtue of the identity of its preparer.

This Agreement may be amended only by written Modification executed by duly authorized representatives of the Parties hereto or according to the procedure set forth in the General Conditions.

ATTACHMENT 2
A2-5

BWP Design-Build 00500-4
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

ARTICLE 2 – TIME FOR PERFORMANCE

2.1 Contract Time.

Time is of the essence. By executing this Agreement, Design- Builder confirms that the Contract Time is a reasonable period for performing the Work. Design- Builder agrees to commence Services within five (5) c alendar Days after a written Notice to Proceed is issued by the City, to perform the Work in a diligent and workmanlike manner, to co mplete the Work in accordance with the time and milestone dates set forth in th e Project Schedule, as hereinafter defined, to achieve Substantial Completion of the Work by June 11, 2025 after City’s issuance of the Notice to Proceed and to achieve Final Completion of the Work within the time fixed b y the City in its Certificate of Substantial Completion (the “Contract Time”). The Contract Time may be extended only with the written per mission of the City.

2.2 Liquidated Damages for Design-Builder Delays.

2.2.1 Design-Builder and the City have agreed to liquidate damag es with respect to Design- Builder’s failure to achieve Substantial Completion of the Work within the Contract Time. The Parties int end for the Liquidated Damages set forth herein to constitute liquidated damages as such term is used in Government Code Section 53069.85. Design-Builder acknowledges and agrees that the Liquidated Damages are intended to compensate City solely for Desig n-Builder’s failure to meet the deadline for Substantial Completion and shall not excuse Design- Builder from liability from a ny other breach, including any failure of the Work to conform to the requirements of the Contract Documents.

2.2.2 In the event th at Desig n-Builder fails to achieve Substantial Completion of the Work within the Contract Time, Design -Builder agrees to pay City the following amounts:

a) $5,0 00 per day for each calendar Day that Substantial Completion is delayed for the first thirty (30) days of delay;

b) $ 10,000 per day for each calendar Day that Substantial Completion is delayed thereaf ter provided, however, that in a ny event Design-Builder’s liability to City for Liquidated Damages shall be limited to ten percent (10%) of the Contract Price, including Change Orders.

ATTACHMENT 2
A2-6

BWP Design-Build 00500-5
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

2.2.3 Design-Builder acknowledges and agrees that the foregoing dam ages are based on an evaluation by the City of damages that it will incur in the event of late completion. Design- Builder and the City a gree that the amount of such damages are impossible to ascertain as of the date of execution hereof and the Parties hav e agreed to such L iquidated Damages to fix Design -Builder’s costs and to avoid later disputes over which items are properly chargeable to D esign-Builder. It is understood and agreed by Design-Builder that any Liquidated Damages payable pursuant to his Agreement are not a penalty and tha t such amounts are not manifestly unreasonable under the circumstances existing as of the date of execution of this Agreement.

2.2.4 It is further mutually agreed that the City shall have the right to deduct Liquidated Damages against progress payments or retainage and that the City will issue a unilateral deductive change order and will reduce the Contrac t Price accordingly. In the event the remaining unpaid Contract Price is insufficient to cover the full amount of Liquidated Damages, Design-Builder shall pay the difference to City.

2.3 Delays and Extensions of Time.

2.3.1 Non-C
ompensable Delays . Th e Parties ackn owledge that the following types of delays and events are not within the responsibility or control of the City, and are reasonably contemplated by the Parties to occur during the course of performance of the Work which may impact the schedule f or performance: construction by separate Design- Builders on or adjacent to the Project site; and Force Majeure events as described in t he General Condit ions (“Non- Compensable Delays”). Notw ithstanding anything to the contrary in the Contract Documents, an extension of the C ontract Time, to the extent permitted under Section 8.2 of the General Conditions, shall be the sole remedy of Design- Builder for the above referenced Non- Compensable Delays. In no event shall Design - Builder be entitled to any compensation or recovery of any damages in connection with the Non-Compensable Delays identified in this paragraph including, without limitation , consequential d amages, lost opportunity costs, impact damages or other similar remuneration

2.3.2 Com pensable Delays. If the da te for S ubstantial Completion of the Work is delayed by events which are the responsibility of or within t he control of the City, are unforeseeable and are unreasonable under the circumstances involved, the Design- Builder shall be entitled to an equitable adjustment of the Contract Time and/or the Contract Sum, subject to the requirements of Article 8 of the General Conditions and provided Design-Builder complies with the notice and procedural requirements of Article 4 of the General Conditions.

ATTACHMENT 2
A2-7

BWP Design-Build 00500-6
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

ARTICLE 3 – CONTRACT PRICE

3.1 Lump Sum Price.

In consideration of Design-Builder’s performance of the Work described herein, City agrees to pay Design-Builder the Lump Sum Contract Price of:

Ten Million Seven Hundred Ninety-One Thousand Forty Eight Dollars ($ 10,791,048)

including applicabl e sales tax, subject to additions and deductions by Change Order as provided in the Contract Documents. Except as otherwise provided in t he Contract Documents, the Contract Price will fully c ompensate Design-Builder for the duration of the Work required by the Contract Documents.

ARTICLE 4 – PAYMENT

4.1 Cost and Man-Loaded Schedule of Values.

Within ten (10) working days after City issues a Purchase Order, the Design-Builder shall submit to the City for review, a detailed Cost and Man- Loaded Schedule of Values allocating the entire Contract Price, as contained in the Summary Pr ice Agreement forms attached hereto collectively as Exhibit K and miscellan eous costs of the Work sufficient detail to serve as the basis for progress payments for performance of s uch Work. Th e prices contained in the Cost and Man- Loaded Schedule of Values shall include and cover the furnishing of all materi als, the performing of a ll labor requisite or proper, supervis ion, overhead, profit, taxes, and the providing of all necessary m achinery, t ools, appurtenances, equipment and other means required to fully complete this contract, except as otherwise specifically pr ovided in the Specifications. Sales tax is calculated at

10.25%. Should the sales tax rate change, the difference wil l be addressed via Change Order. The Cost and Man- Loaded Schedule of Values, as agreed to by the City , shall be used as a basis for paymen ts to Design -Builder based upon the percentage of Work completed as determined by the Engineer. The period covered by each Applicat ion for Payment for the Work shall be one (1) calendar month.

4.2 Payment Benchmarks.

Notwithstanding any information c ontained in the C ost and Man- Loaded Schedule of Values, the amounts contained in any Design- Builder Application for Pay ment of labor or mate rials shall be submitted according to the following Payment Benchmarks .

ATTACHMENT 2
A2-8

BWP Design-Build 00500-7
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

4.3 Payment Benchmarks (Equipment).

Notwithstanding any i nformation contained in the Cost and Man- Loaded Schedule of Values, the amounts contained in any Design-Bui lder Application for Payment o f labor or materials shall be submitted according to the following Payment Benchmarks, minus the retention amount for each benchmark:

Benchmark

% of Contract Price to
be Billed

1. Contract Award 5% of Contract Price

2. Major equipment (480V Switchgear, Solar Panels,
Inverters, and Racking)
10% of Contract Price

3. City approval of single line, general arrangement,
wall and layout drawings
5% of Contract Price

4. City approval of major equipment drawings 5% of Contract Price

5. Site Mobilization 3% of Contract Price

6. Site grading, equipment foundations and
substructure completed
8% of Contract Price

7. Building walls, exterior walls, and doors complete 5% of Contract Price

8. Solar Panels delivered to site 15% of Contract Price

9. All major equipment, cabinets, and BOS equipment
delivered
7% of Contract Price

10. Racking Installed 7% of Contract Price

11. Solar Panels and Inverters Installed and
Connected
15% of Contract Price

12. Civil construction, landscaping and paving
completed
3% of Contract Price

13. Installation of major equipment completed 5% of Contract Price

14. Electrical construction complete 2% of Contract Price

15. Substantial Completion reached 5% of Contract Price

Any remainder due for Equipment Items 1 through 4 shall be paid upon Final Completion pursuant to Article 9 of the General Conditions.

4.4 Procedures for Payment.

Each Application for Payment a nd payment shall be made in accordance with the procedures set forth in the General Conditions. An estimated billing/invoice schedule shall be provided and updated throughout the term of this Agreement to indicate cash flow requirements for the Project.

ATTACHMENT 2
A2-9

BWP Design-Build 00500-8
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

ARTICLE 5 – DESIGN-BUILDER'S DUTIES AND RESPONSIBILITIES

5.1 General Scope of Services.

5.1.1 Furnish all design and other Services, provide all materials and undertake all efforts necessary or appropriate to construct the Project in accordance with the requirements of the Contract Documents, all Governmental Approvals, the approve d Construction Documents, all Applicable Law, and all other applicable safety, environmental and other requirements taking into account the const raints affecting the Project site.

Design-Builder shall furnish the design and other Services, provide all mat erial of the Project and shall construct the Project as designed, in accordance with all professional engineering principles and construction practi ces generally accepted as standar ds of the industry in the State of California, in a good and workmanlike manner, free from defects and in accordance with the terms and conditions set forth in the Contract Documents on a Turnkey Contract Basis. Except as otherwise specifically provided i n this Con tract, all materials, services and efforts necessary to achieve Substantial Completion of the Project and elements thereof on or before the Milestone deadlines provided in the Contract Documents shall be Design- Builder's sole responsibility. The costs of al l such materials, services and efforts are included in the Contract Price.

5.1.2 The scope of Services to be provided by Design- Builder is set forth in the Contract Documents as more particularly described in the Des ign and Performance Criteria, Preliminary Drawings and Technical Specifications.

5.1.3 The Design- Builder shall hold and maintain a valid California “Class A-General Engineering Contractor” or “Class B-General Building Contractor” license at the time of Proposal submittal at all times during performance of the Work.

5.1.4 All Subcontractors shall hold and maintain the appropriate California C-specialty license, A -general engineering contractor license or engineering license, indicated on the Subcontr actor List and Declaration at the time of Proposal s ubmittal and at all times during performance of the Work.

ATTACHMENT 2
A2-10

BWP Design-Build 00500-9
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

5.2 Before Starting Work.

Design-Builder shall submit the followi ng to the City for review within ten (10) working Days after City's issuance of the Notice to Proceed and as a condition to payment.

A. A detailed Project Schedule indicating the t imes (numbers of days or dates) fo r starting and completing the various stages of the Work including each Milestone specified in the Contract Documents;

B. A schedule of required submittals and the times for submitting, reviewing and processing each submittal; and

C. The Cost and Man- Loaded Sc hedule of Values referenced in Paragraph 4.1 herein acceptable to City in form and substance.

5.3 Initial Conference.

Within twenty (20) working days after the issuance o f the Notice to Proceed, a conference attended by the City and Design-Builder and others as appropriate will be held to establish a working understanding among the Parties as to the Work and to discuss t he design concepts, updating schedules, progress meet ings, procedures for hand ling submittals, processi ng Applications for Payment, m aintaining required records, coordination with D esign-Build Team Members, other subcontractors and other Project administration matters.

5.4 Evaluation of Preliminary Submittals.

5.4.1 After Purchas e Order is suance and at le ast te n (10) days before submission of the first Application for Payment, a conference attended by Design- Builder, the City and others as appropriate, wi ll be held to review for acceptability the submittal s required by the Contrac t Documents. Design-Builder sha ll have an additional te n (1 0) calendar days to make corrections and adjustments and to complete and resubmit the documents. No progress payment s hall be made to Design- Builder until the required submittals are acceptable to the City. The detailed Project Schedule will be acceptabl e to the City as providing an orderly progression of the Work to completion within any specified Milestones and the Contra ct Time, but such acceptance will neither impose on the City responsibility for the sequencing, scheduling or progress of the Work nor interfere with nor relieve Design-Builder from Design-Builder’s full responsibility therefore. The format and structure of the Project Schedule will be as set forth in t he Contract Documents and approved by the City. Th e City’s acceptance shall not be deemed to confir m that the schedule is a reasonable plan for performing the Work. Design -Builder’s schedule of submittals will be acceptable to the City as providing a workable arrangement for reviewing and processing the required submittals.

5.5 Key Personnel.

5.5.1 T he Design- Builder’s single le ad Project Manager and authorized representative for this Project is who has the authority to make decisions for a nd bind the ATTACHMENT 2
A2-11

BWP Design-Build 00500-10
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC Design-Builder. This Project Manager shall manage and coordinate al l c ommercial and technical aspects of the Project and shall be dedicated 100% to this Project. The Project Manager shall s ubmit monthly progress reports to the City and maint ain the Project Schedule. The Project Manager originally assigned to this Projec t shall not be chan ged once the Project has commenced unless the Project Manager ceases to be in the Design- Builder’s employ. Design-Builder shall submit to the City in writin g any proposed change in the Project Manager and obtain City’s prior written con sent to any such change, which shall not be unreasonably withheld.

5.5.2 In addition to the Project Manager and the Pr oject Engineer , Design-Builder shall employ the Site Manager and key personnel identified in Exhibit F, attached hereto, or replaceme nt personnel approv ed by the City in writing. The Site Manager may be different from the Project Manager. The Site Manager w ill be required to live in or near (within 30 min utes’ drive time) Burbank with 24 -hour a ccess during the period of time when cons truction is perform ed on the Project site. The City may at a ny time elect to add job categories to the key personnel list. The City has the right to review the qualifications and character of each i ndividual appointed to a k ey position (including personnel employed by Subcontractors) and to accept or reject the use of such individual.

If the City determines in its sole disc retion that performance of any key personnel is unsatisfactory, then the City has the right to direct a change in such key personnel.

5.6 Design Phase Services.

5.6.1 Design Professional Licensing Requirements .

The City does not
intend to contract for, pay f or, or receive any design services, which are in viol ation of any professional licensing laws, and by e xecution of this Contract, Des ign-Builder acknowledges that City has no such intent. It is the intent of the Parties that Design- Builder is fully responsib le for furnishing the design of the Project, altho ugh the fully licensed design firms designated as members of the Design- Build Team will perform the design services required by the Contract Documents. Nothing in this article shall create a contractual relationship between such Design-Build Team Members and the City.

5.6.2 Standard of C
are. All d esign Services to be performed by Design-
Builder, the Design Team Members, Subcontractors, and their employees identified in Design-Builder’s Proposal Documents or oth er Persons approved by the City shall be performed in an expeditious and pr ofessional manner using archite cts, engineers and other professionals properly licensed and duly qualified in the jurisdiction in which the Project is located. The professional obl igations of such persons shall be undertaken and performed in the interest of the Design-Builder. All design Services performed pursuant to this Agreement shall be provided with the standard of judgment, care, knowledge and skill which prevails among desi gn professionals, of knowledge and skill, engaged in practice within Southern California under the s ame or similar circumstances, inv olving the desig n and construction of an improvement such as this Project in compliance with the Contract Documents.

5.6.3 Preliminary Design Phase. After th
e City’s issuance o f the Notice to
Proceed and within th e times set fo rth in the Project Schedule ac cepted by City, Des ign- Builder shall:

ATTACHMENT 2
A2-12

BWP Design-Build 00500-11
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

5.6.3.1 Consult with the City to understand the City’s requirements for the Project and revi ew available data and to consult with the BESS manufacturer to understand the requirements for the BESS;

5.6.3.2 Advise the City as to the necessity of the City’s providing or obtaining from others additional reports, data or services and assist the City in obtaining such reports, data, or services;

5.6.3.3 Identify and analyze requirements of gov ernmental authorities having jurisdiction to approve the portions of the Project des igned or specified by Design -Builder with whom consultat ion is to be undertaken in connection with the Project;

5.6.3.4 Prepare preliminary Design Documents consisting of final design criteria, preliminary drawings, outline specifications, written descri ptions of the Project and other document s to fix and describe the size, quality and character of the entire Project; and

5.6.3.5 Furnish the preliminary Design Documents to and review them with the City. for approval within the time indicated in the approved Project Schedule.

Design-Builder shall not proceed with the Final Design Phase until it receives written authorization from City to do so.

5.6.4 Final D esign Phase. After written acceptanc e by the City of the preliminary Design Documents Design-Builder shall:

5.6. 4.1 On the basi s of the accepted preliminary D esign Documents, prepare final Construction Documents showing the scope, extent, and character of the co nstruction to be performed and furnis hed by Design-Builder including technical drawings, schedules, diagrams, ca lculations, and specifications (which, unless otherwise approved by the City, will be prepared, where appropriate, in general conformance with the sixteen division format of the Constr uction Specifications Institute) setting forth the requirements for cons truction of the Work which shall provide information customarily necessary for the use of those in building trades.

5.6.4.2 Provide technical criter ia, written descriptions and design data required for obtaining approval s of such governmental authorities as have jurisdiction to review or approve the final design of the Project , and assist City in consultations with appropriate authorities.

5.6.4.3 Furnish the above documents, drawings, calculations and specifications to and review them with the City for approval within the time indicated in the approved Project Schedule at increments of at least 30%, 60% and 90% completion of the Construction Documents. After the City’s approval of the final Const ruction Documents, said documents shall be incorporated as Contract Documents and a Contract amendment will be issu ed, attaching an index of the approved Contract Documents.

Design-Builder shall not proceed with the construction phase unless and until it r eceives written approval of the Construction Documents or portions thereof.

ATTACHMENT 2
A2-13

BWP Design-Build 00500-12
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

5.6.5 Certification of Construction. As a condition to final payment to Design-Builder, each Design Team Member shall provide written certification that the Work has been constructed i n accorda nce with the Con tract Documents and with the design provided by such Person.

5.7 C
onstruction Phase Services.

5.7.1 General.

5.7.1.1 Construction Services shall be performed by D esign- Builder and/or by qualified and l icensed Design- Builders, Subcontractors a nd Suppliers who are selected, paid and acting in the interest of the Desi gn-Builder in accordance with the procedures outlined in the Contract Documents. Design-Builder shall provide or cause to be provided and shall pay for design Services, labor, mater ials, equip ment, tools, construction equipment and machi nery, water, heat, utilities, transportation and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporate d o r to be i ncorporated in the Work.

5.7.1.2 The Design- Builder shall be responsible for an d shall coordinate all construction means, methods, techniques, sequences, and procedures wit h the City.

5.7.1.3 The Design- Builder shall k eep the City informed of the progress and quality of the Work in the form of weekly written reports.

5.7.1.4 The Design-Builder shall keep the Project site free f rom accumulation of waste materials or rubbish caused by the D esign-Builder’s operations. At the com pletion of construction of the Work, the Design-Builder shall remove fro m and about the Project the Design- Builder’s tools, construction equipment, machinery, surplus materials, waste materials and rubbish.

5.7.2 Supervis
ion and Coordination of Construction.

5.7.2.1 Design-Builder shall supervise, inspect and direc t the construction competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to provide the construction in accordance with the Contract Documents. Design -Builder shall be solely resp onsible to see that the completed construction complies accurately with the Contract Documents and shall keep the City advised as to the quality and progress of the Work.

5.7.2.2 Design-Builder shall coordinate its Work wit h Burbank Water and Power and the City of B urbank to minimize disr uption to the City’s utility operations

ATTACHMENT 2
A2-14

BWP Design-Build 00500-13
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

5.7.3 Labor, Materials and Equipment.

5.7.3.1 Design-Builder shall provide competent , suitably qualified personnel to sur vey and lay out the construction and perfo rm construction as required by the Con tract Doc uments. Design- Builder shall at all times main tain good discipline and order at the site. Except as otherwise required for the safety or protection of persons or the Work or property at the site or adjacent thereto, and except as otherwise indicated in the Contract Documents, all construction at the site shall be perf ormed during regular working hours, and Design- Builder will not p ermit overtime work or the performance of construction on Saturday, Sunday or a ny legal holiday without the City’s written consent, which will not be unreasonably withheld.

5.7.3.2 Although the Desi gn-Builder is not prohibited from working on Saturdays, Sundays, holidays, or after normal business ho urs, except as limited by ordinance, Desig n-Builder must obtain prior written ap proval from the Engineer before doing so and must demonstrate the Work req uested to be performed is on the critical path. When Work is per formed on Saturdays, Sundays, holiday s or after normal business hours, at the request of Design- Builder, any extra c osts incur red will be born solely by the Design- Builder. Further, any addi tional co sts incurred by the City arisin g from Work performed on Saturdays, Sundays, holidays or after normal business hours at the request o f Design-Builder, including, but not lim ited to, costs of inspections and tests, shall be reimbursed to the City by Design-Builder.

5.7.3.3 Unless otherwise specified in the Contract Documents, Design-Builder shall furnish or c ause to be furnished and assume full responsibility for materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities and all othe r facilities and incidentals necessary for the furnishing, performance, test ing, start-up and completi on of the Work. Design- Builder, in the presence of the City’s personnel, will direct the checkout of utilities and operations of systems and equipment.

5.7.3.4 All materials and equipment incorpor ated into the Work shall be of good qual ity and ne w, except as otherwise provided in the Contract Documents. All w arranties and guarantees specifically called for by the Contract Documents shall expressly run to the ben efit of City. If required by the City, Design- Builder shall furnish satisfacto ry evid ence (including report s of required tests) as to the kind and quality of materials and equipment. All materials and equipment shall be applied, installed, connected, ere cted, used, cleaned and conditioned in accordance with instructions of the a pplicable Supplier, except as ot herwise provided in the C ontract Documents.

5.8 Field Testing.

During the start-up or operational phase, Design-Builder shall:

A. Provide assi stance in connection with the start -up, testing, refining and adjusting of any equipment or system.

B. Assist the City in training staff to operate and maintain the Project.

ATTACHMENT 2
A2-15

BWP Design-Build 00500-14
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

C. Assist the City in developing systems and procedures for control of the operation and maintenance of and record keeping for the Project.

5.9 General Duties and Responsibilities.

5.9.1 Obtain Government Approvals required by the Contract Document s in connection with the Project. Any permit charges caused by an excessive number of plan check submittals or caused by errors and omissions in design shall be borne by D esign- Builder without reimbursement by the City.

5.9.2 Undertake all actions required by and all actions necessary to maintain in full force and effect all Governmental Approvals in effect during performance of the Work, including performance of all environment al mitigation measures an d transportation related conditions of approval required by the Contract Documents.

5.9.3 Provide such assistance as is reasonably requested by the City in dealing with any governmental agency. Suc h assistance may include providing information and reports regarding the Project as well as executing declarations and attending meetings and hearings. In no event shall Design- Builder be required to provide legal services.

5.9.4 The Design- Builder shall co mply with all Applicable Laws and shall give appli cable notices pe rtaining thereto. The Design-B uilder shall prepare and fi le all documents required to obtain the necessary approv als of governmental authorities havin g jurisdiction over the Work and/or the Project and shall secure and pay for al l permits and governmental fees, licensees and inspections necessary for the proper e xecution of the Work and completion of the Project.

5.9.5 The Design -Builder shall perform all of its obligations under these Contract Documents in accordance with all applicabl e federal, state and local laws , rules, regulations and orders. This obligation includes, but is not limited to, compliance with any applicable workplace safety requirements i ssued in connection with COVID -19, and any updates thereto.

5.9.6 Provide and maintain field offices as described in the RFP Documents for persons designated by City.

5.9.7 D esign-Builder shall be responsible for construction means, methods, techniques, sequences and procedures. Design- Builder shall superv ise and be responsible to the City fo r a cts and o missions of De sign-Builder's employees, agent s, officers, Subcontractors and other persons performing portions of the Work, as though all persons were directly employed by Design-Builder.

5.9.8 Mitigate delays to the Project in all circumstances, to the exten t reasonably possible.

5.9.9 Maintain the Project Site and the immediate surrou ndings in a clean and orderly condition, free of weeds, trash and graffiti.

ATTACHMENT 2
A2-16

BWP Design-Build 00500-15
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

ARTICLE 6 – CITY'S DUTIES AND RESPONSIBILITIES

6.1 C ity’s Designation of Authorized Representative.

The City designates Michael Wang as the Engineer and the City’s authorized representative for this Project. The Engineer may designate in writing, from time to time, one or more representatives authorized t o act on the City’s behalf with respect to the Project.

6.2 City’s Right to Make Changes and Award Separate Contracts.

The City reserves the right to order changes in the Work, to perform Work or operations relat ed to the Project with the City’s own f orces, and to award separate contracts in connection with the Project.

6.3 City’s Right to Stop the Work.

If the Design -Builder fails to correct defective Work as required herein, or fails to carry out the Work in acco rdance with the Contract Documents, the City may, in its sole discretion, elect to order the Design-Builder to stop the Work, or any portion thereof until the City reasonably determines that the cause for such order has been eliminated. The City’s right to stop the Work is in addition to the City’s right to terminate set forth herein.

6.4 S uspension by City for Convenience.

The City may, without cause, order t he Design-Builder in writing to suspend, delay or interrupt the Work in whole or in part for suc h period of time as the City may det ermine.

If such suspension, delay or interruption causes the Design-Builder to incur increased cost for the performance of t he Work, an adjustment to the Contract Price shall be m ade for such costs as are directly at tributable to such suspension, delay or interruption. If such suspension, delay o r inter ruption causes a delay to the critical path of the Work, an adjustment to the Contract Time shall be made.

6.5 City’s Right to Carry Out the Work.

If the Design-Builder defaults and neglects to carry out the Work in accordance with the Contract Documents o r fails to per form a ny of its obligations under the Contract Documents, the City may, after ten (10) calendar days written notice to the Design-Builder, and without prejudice to any other remedy the City may have, make good such deficiencies. In such case, the City shall deduct from payments then or thereafter due the Design-Builder the cost of correcting such deficiencies. If th e payments then or thereafter due the Design-Builder are not sufficient to c over such amount, the Design- Builder shall pay the difference to the City within thirty (30) days of written demand from the City.

ATTACHMENT 2
A2-17

BWP Design-Build 00500-16
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC ARTICLE 7 – MISCELLANEOUS PROVISIONS

7.1 Independent Contractor.

Design-Builder is, and shall be, acting at all times in t he performance of this Agreement as an independent contractor. Design-Builder shall secure at its expense, and be respo nsible for any and all payment of all taxes, social security, state disability insurance compensatio n, unemployment compensation and other payroll deductions for Design-Builder and its officers, agents and em ployees and all business licenses, if any, in connection with the services to be performed hereunder.

7.2 City Employees and Officials.

Design-Builder shall employ no City official n or any City employee in the Work performed pursuant to this Agreement. No officer or employee of the City shall have an y financial interest in this Agreement in violation of applicable provisions of law.

7.3 Contractor’s Lic
ense Notice:

Contractors are require d by law to be licensed and regulated by the Contractors’ State License Board, which has juris diction to inv estigate complaints against contractors if a complaint regarding a patent act or omission is filed within four (4) years of the date of the alleged violation. A complaint regarding a l atent act or omission pert aining to structural defects must be filed within ten (10) years of the date of the alleged violation. Any questions concerning a contractor may be refer red to the Registrar, Contractors’ S tate License Board, P.O. Box 26000, Sacramento, California 95826.

7.4 Notices.

Any notice or special instruct ions requi red to be given in writing under t his Agreement shall b e given either by personal delivery to Desig n-Builder's agent (as designated in Section 1 hereinabove) or to the City's Engineer as the situation shall warrant, or by enclosing the same in a sealed envelope, postage prepaid, and deposi ting the same in the United States Postal Service, addressed as follows:

TO CITY: TO DESIGN-BUILDER:

Michael Wang, PE, PMP
Principal Electrical Engineer
City of Burbank
164 West Magnolia Boulevard
P.O. Box 631
Burbank, CA 91502-1720

ATTACHMENT 2
A2-18

BWP Design-Build 00500-17
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

All original Preliminary Notices and/or Stop Notices are to be sent to:

City of Burbank
Financial Services – Purchasing
301 E. Olive Ave., Suite 305
Burbank, CA. 91502
Attn: Karen Little, Buyer I

A copy shall be sent to:

Burbank Water and Power
164 W. Magnolia Blvd.

Burbank, CA 91502
Attn: Michael Wang, Senior Electrical Engineer

IN WITNESS WHEREOF, the parties hereto have caused this Agr eement to be executed by and thr ough their authorized offices the day, month a nd year first above written.

DESIGN-BUILDER CITY OF BURBANK

Baker Electric and Renwables, LLC

By: ____________________________
( signature)

_____________________________
Name (Please Print)

Its: ____________________________
T itle

By: ____________________________
(S ignature)

____Dawn Roth Lindell
_________
Name (Please Print)

Its: General Manager,
Burbank Water
and Power
T itle

ATTEST

_______________________________
Kimberley Clark, City Clerk

California Contractor’s
License No.:

Tax I.D. No.:

APPROVED AS TO FORM AND
LEGAL CONTENT:

By: ____________________________
C hristopher Chwang
Senior Assistant City Attorney
ATTACHMENT 2
A2-19

BWP Design-Build 00500-18
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

ATTACHMENT 2
A2-20

BWP Design-Build 00500-19
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

EXHIBIT A

SITE DESCRIPTION

PROJECT LOCATION
The project site is located in the northwest portion of the City of Burbank . The re gional location of the project site is s hown in Figure 2.0-1, Project Location Map. The project site is loca ted on nor thwest corner of the intersection of N. Hollywood Way and Empire Ave. The current address for the pro ject site is 2501 N Hollywood Way. The project site is located on Assessor Parcel Number (APN) 2466-011-912.

EXISTING CONDITIONS
The project site includes approximately 195,000 square feet of roof area (4.47 acre), and a nearby approximately 4,500 square feet of lot area (0.1 acre) connected by a 20’ wide strip of land , all of w hich is flat in top ography. As sho wn in Figure 2.0 -2, Aerial View of Project Site, the main project site is developed and contains an existing parking structure, the nearby pr oject site north of the structure is un developed. The parking structure contains 3 floors which are used by va rious rental car agencies for operations. The roof is a standing seam metal roof with minimal slope. The nearby undeveloped area is covered by pervious surface (nativ e soil) and the 20’ w ide strip of land contains pervious (n ative soil) and impervious surface (asphalt).

ATTACHMENT 2
A2-21

BWP Design-Build 00500-20
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

Figure 2.0-1
Project Location Map

ATTACHMENT 2
A2-22

BWP Design-Build 00500-21
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC Figure 2.0-2
Aerial View of Project Site

ATTACHMENT 2
A2-23

BWP Design-Build 00601-1
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

EXHIBIT B

PERFORMANCE BOND

ATTACHMENT 2
A2-24

PERFORMANCE BOND
No. ________________
BWP Design-Build 00601-2
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

PERFORMANCE BOND

KNOW ALL PERSONS BY THESE PRESENTS:

That we, _________________ _______________________________________, as Principal, and __________________________________________________, as Surety are held and firmly bound unto the City of Burbank (hereinafter "Obligee") in the penal sum of _____________ ____________________________ Dol lars ($ ___ _______) lawful money of the Uni ted States, for the payment of which sum, well and truly to be made, we bind ourselves, our heirs, executors, administrators and successors, jointly and severally, firmly by these presents.

THE CONDITION OF THIS OBLIGATION IS SUCH THAT:

WHEREAS, CITY by resolution of its Council passed on ______________, 2023, has awarded to _______________________________ License No. ___________, hereinafter designated as "Principal", a design-bu ild contract for the Work described as the Solar Project at Holl ywood Burbank Airport RITC in accordance with RFP 1521; and

WHEREAS, the Principal has by a writte n agreement dated ______________, 2023, entered into a contract with the CITY for performanc e of the Work, which Design- Build Contract (“Contract”) and the Contract Documents are by this reference made a part hereof as though set forth in full hereat.

WHEREAS, said Principal is required to furnish a bond guaranteeing the, prompt, full and fait hful performance of its ob ligations und er the Contract Documents concurrently with delivery to Obligee of the executed Contract.

WHEREAS, the Design -Builder and th e Surety, joi ntly and severally, bind themselves, their heirs, executors, administrative, succe ssors and assigns to t he CITY for th e prompt, full and faithful perfor mance of the Contract Documents, which is hereinabove incorporated by reference.

NOW, THEREFORE, if the Principal shall promptly, fully and faithfully perform each and all of the obl igations and things to be done and perf ormed by the Principal in strict accordance with the terms of the Contract Documents as said Contract Documents may be modifi ed or amended from time to time; and if the Principal shall indemnify and save harmless the Obligees and all of their officers, age nts and employees from any and all losses, liability and damages, claims, judgments, stop notices, costs, and fees of every description, whether in contract or in tort, whether imposed by law or equity, which may be incu rred by the Obligees by reason of th e failure or default on the part of the Principal in the performance of any or all of the terms or the obligations of the Contract Documen ts, as they may be amended and supplemented including, but not limited to, it s liability for liquidated d amages, and any warranties or guarantees requir ed the reunder; then this obligation shall be void; otherwise, it shall be, and remain, in full force and effect.

ATTACHMENT 2
A2-25

PERFORMANCE BOND
No. ________________
BWP Design-Build 00601-3
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

In the event of a failure of performance of the Contract Document s by the Principal, which s hall include w ithout limitation, any br each or de fault of the Contract Documents, then, after written notice from the Obligees to the Suret y, as provide d for below, the Surety shall either remedy the default or breach of the Princip al or shall take charge of the Work of the Construction Contrac t and com plete the Construction Contract with a Design-Builder other than the Principal at its own expense; provi ded, however, that the procedure by which the Surety undertakes to discharge it s obligations under this Bond shall be subject to the advance written approval of the Obligees.

If the S urety does not proceed to cure or remedy the Principal's default(s) of i ts performance of the Construction Contract with reasonable promptness, the S urety shall be deemed to be in default on this bond five (5) days after rec eipt of a written notice from CI TY to the Surety demanding that the Surety perform its obli gations under this Bond, and the CITY shall be entitled to enforce any remedy available to CITY.

Within five (5) day s of C ITY's wr itten notice to the Surety of the f ailure o f performance of the Construc tion Contract by the Principal, it shall be the duty of the Surety to give to the Obligee an unequivocal notice in writing of the Surety's elec tion to remedy the default( s) of the Prin cipal promptly, or to arrange for performance of the Construction Contract promptly by a Contractor other than the Principal, time being o f essence to this Bond. In said Notice of Election, the Surety shall state t he date of commencement of i ts cure or re medy of the Principal's d efault(s) or its performance of the Construction Contract. The Surety's obligations for cure or remedy, include but are not limited to: correction of defective work and completion of the C onstruction Contract, additional legal, d esign professional and de lay costs arising from Surety's actions or failure to act; and liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual damages caused by delayed pe rformance or non- performance by the Principal. The Surety shall give prompt written notice to the Obligee upon completion of the cure or remedy of the Principal's default(s) of its performance of the Construction Contract.

No alteration, modification or su pplement to the Contract Documents or the nature of the Work pe rformed thereunder including, without lim itation, an extension of time for performance, shall in any way affect t he obligations of the Surety under this bond. Surety waives notice of any al teration, modification, supp lement or ext ension of time or other change order.

F URTHER, Principal and Sur ety agree that if the CITY is required to engage the services of an attorney in connection with enforcement of the bond, each shall pay the CITY's reasonable attorney's fees incurred, with or without suit, in addition to the above penal sum.

The guarantees contained herein shall survive the final completion of t he design and construction called for in the Contract Documents with respect to the obligati ons and liabilities of the principal which survive such final completion.

ATTACHMENT 2
A2-26

PERFORMANCE BOND
No. ________________
BWP Design-Build 00601-4
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

IN WITNESS WHEREOF, the abov e boun d parties have executed this instrument under their several hands and seals this __ day of __, 2023.

Surety Name Principal

Signature of Attorney-in-Fact for
Surety
Signature
Type or Print Name Typed or Printed Name of
Signatory

Address Type or Print Title

ATTEST
Surety Telephone Number (Corporate Seal)

Surety Fax Number

(Attach Attorney-in-Fact Certificate)

ATTACHMENT 2
A2-27

BWP Design-Build 00602-1
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

EXHIBIT C

PAYMENT BOND

ATTACHMENT 2
A2-28

PAYMENT BOND
No. ________________
BWP Design-Build 00602-2
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

PAYMENT (MATERIAL AND LABOR) BOND

WHEREAS City of Burbank (“City”) has awarded to _______________________ (“Principal), Contract No. ________ for the design, construction and completion of the Solar Project at the Hollywood Burbank Airpor t RI TC in accordance with RFP 1521,

WHEREAS Principal is required under the terms of the Contract to furnish a Bond to secure the payment of claims of la borers, mechanics, materialmen, and other persons as provided by law;

NOW, T HEREFORE, we ______________ ___________, a s P rincipal, and ________________ ______________ (“Surety”), as Surety, are held and firmly bound unto the Owner in the sum of _________________________________________ Dollars ($ __________), this amount being not le ss than the Total Contrac t Price in lawful money of the United S tates of America, for payment of which su m well and truly to be made, we bind ourselves, our heirs, executors, ad ministrators, successors, and assigns, jointly and severally, firmly by these presents. In case suit is brought upon this Bond, Surety will pay reasonab le at torneys’ fees to the City and the plaintiff(s) in an amount to be fixed by the court.

The condition of this obligation is such that, if the hereby -bonded Principal, or its heir s, executors, administrat ors, s uccessors, or assigns, or Subcont ractors s hall f ail to pay any of the persons named in Civil Code Section 3181 or to pay amounts due under the Unemployment Insurance Code with respect to work or labor performed under the Contract, or amounts due under the Contract, or any amounts required to be deducted, withheld, and paid over to the Employment Development Department from the wages of employees of Principal or its subcontractors pursuant to Section 13020 of the Unemployment Insu rance Code with respec t to w ork or l abor performed under the Contract, then the Surety herein named shall pa y for the same in an amount not exceeding the sum specified in this Bond; otherwise, the above obligation shall be void.

This Bond shall inure to t he benefit of any of t he persons named in Civil Code Section 3181 as t o give a right of action to such persons or their heirs, executors, administrators, successors, or assigns in any suit brought upon this Bond.

Further, Surety, for value received, hereby stipulates and agree s that no chan ge, extension of time, al teration, or modification of the Contract Documents, or of the Work to be performed thereunder, shall in any way affect its ob ligations on this Bond, and it does hereby waive notice of such cha nge, extension of time, a lteration, or modification of the Contract Documents, or of the Work to be performed thereunder.

ATTACHMENT 2
A2-29

PAYMENT BOND
No. ________________
BWP Design-Build 00602-3
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

IN WITNESS WHEREOF, three identical counterparts of this instrument, each of which shall for all purposes be deemed an original her eof, have been duly exec uted by Principal and Surety named herein, on the ____ day of ________, 2023 , the name and corporate seal of each corporate party being hereto affixed and these presents duly signed by its undersigned representative pursuant to authority of its governing body.

Surety Name Principal

Signature of Attorney-in-Fact for
Surety
Signature
Type or Print Name Typed or Printed Name of
Signatory

Address Type or Print Title

ATTEST
Surety Telephone Number (Corporate Seal)

Surety Fax Number

Note: T his bond must be executed in duplicat e a nd dated, all signatures must be notarized, and evidence of t he authority of any person signing as attorney-in-fact must be attached. (Attach Attorney-in-Fact Certificate)

ATTACHMENT 2
A2-30

BWP Design-Build
RFP No. 1521 - 1 -

EXHIBIT D

MAINTENANCE BOND

KNOW ALL MEN BY THESE PRESENTS:

WHEREAS, City of Burbank, State of California, and
_______________________________ (hereinafter designated s “Principal”) have entered into an agreement for the furnishing of al l materials, labor, services and transportation necessary, conveni ent, and proper to construct the Solar Project at the Hollywood Burbank Airport RITC , Bid Schedule No. 1521, whic h said Agreement dated _______________, 2023 , and all of the Contract Documents attached to or forming a part of said Agreement, hereby referred to and made a part hereof; and

WHEREAS, pursuant to law, the Principal is required after Completion of the Wor k, and before the filing and recordation of a Notice of Completion for the Work , to file a good and sufficient bond with the body by whom the Contract is awarded, to secure claims for Maintenance equal to five percent (5%) of the total amount of the Contract which shall hold good for a period of one (1) year from the date of the Ci ty’s Notice of Completion and Acceptance is filed with the County Recorder, to pr otect the City against the result of faulty material or workmanship during that time.

NOW, THERE FORE, said Principal and the undersigned ________________ as corporate surety , are held firmly bound unt o the City of Bur bank, for repair or replacement of any a nd all of our Work together with any other adjacent Work whic h may be displaced by so doing, that proves to be defective in its workmanship or material for the period of one (1) year (except when otherwise required in the Contract to be for a longer per iod) from the date the Cit y’s No tice of Completion and Acceptanc e, or equivalent is filed with the County Recorder, ordinary wear and tear and unusual abuse or neglect excepte d. S aid date of acceptance shall be as defi ned in Article 9 of th e General Condi tions of these Contract Document s, in the sum of:
_______________________ Dollars ($______________ ___), lawful money of the United States, for the payment of which sum well and truly made, we bind oursel ves, our heir s, executors, administrat ors, successors, o r assigns, jointly and severally by these presents.

The condition of this obligation is such that if the said Principal or any of his or her or its subcontractors, or the he irs, executors, administ rators, succes sors, or assigns or assigns of any, all o r either of them, shall f ail to execute within a reasonable amount of time, or fail to respond within seven (7) days with a written schedule acceptable to the City for same, re pair or replacement of any and all Work , t ogether with any other adjacent Work w hich may be displaced by so doing, that proves to be defective in its workmanship or material for the period of one (1) year (except when otherwise required in the Contract t o be for a longer period) f rom the date t he City’s notice of Completion and Acceptance is filed with the Co unty Recorder, ordinary wear and tear and unusual abuse or negligence excepted with respect to such Work and labor, the surety herein shall pay for t he sa me, in an amount not exceedi ng the s um specified in this Bond, ATTACHMENT 2
A2-31

BWP Design-Build
RFP No. 1521 - 1 -
otherwise the above obligation shall be void. In case suit is brought upon this bond, the said surety will pay a reasonable attorney’s fee to be fixed by the court.

Should the condition of t his bond be fully perf ormed, then this obligation shall becom e null and void, otherwise it shall be and remain in full force, virtue, and effect.

And the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration, or addition t o the terms of said Contract or to the Work to be perf ormed thereunder or the sp ecifications accompanying the same shall in any manner affect its obligations on this bond, and it does hereby waive notice of any such change, extension, alteration, or addition.

Death of the Principal shall not relieve Surety of its obligations hereunder.

IN WITNESS WHEREOF, two (2) ident ical counterparts of this instrume nts, each of which shall for all purposed be deemed an original hereof, have been duly executed by Principal and Surety on the date set forth below, the same of each corporate party being hereto affixed and these presents duly signed by its undersigned representative(s) pursuant to the authority of its governing body. Principal and Surety have caused this Bond to be duly executed and delivered as of this _____ day of ________, 2023.

Surety Name Principal

Signature of Attorney-in-Fact for
Surety
Signature
Type or Print Name Typed or Printed Name of
Signatory

Address Type or Print Title

ATTEST
Surety Telephone Number (Corporate Seal)

Surety Fax Number

(Attach Attorney-in-Fact Certificate)
ATTACHMENT 2
A2-32

BWP Design-Build
RFP No. 1521 - 1 -
Note: This bond must be executed in duplicate and dated, all signatures must be notarized, and evidence of the authority of any pers on signing as attorney-in-fact must be attached.

ATTACHMENT 2
A2-33

BWP Design-Build
RFP No. 1521 - 1 -

EXHIBIT E

CHANGE AND EXTRA WORK ORDER

Burbank Water and Power

CHANGE AND EXTRA WORK ORDER
Order No.

P. O. No.

RFP No. 1521
Date
Project: Solar at the Hollywood Burbank Airport

The following change is hereby made a part of the Contract Documents enumerated in the Agreement Between City and Contractor dated _______________ and shall be performed under the same t erms and conditions as required by the or iginal Contract Documents. Except as modif ied herein, the origina l Contract Documents and all prior amendments shall remain in full force and effect and all of the terms of the Contract Documents are hereby incorporated in this Change Order.

Item Number Detailed description of work to be performed, with quantities

In accordance with the applicable provisions of the specification as follows:

UNIT PRICE METHOD

Item Number Description Quantity Unit Price Extension

9.1 COST PLUS PERCENTAGE METHOD FOR WORK PERFORMED BY CONTRACTOR:

Item Number Description and quantity at actual cost to Contractor Price

1. Materials

2. Direct Labor

3. Plant and Equipment Rental

4. Installation, Maintenance, Operation,
and Dismantling of Plant Equipment

Sub-Total
Add 15% of Sub-Total
Total per this method

EXTRA WORK PERFORMED OTHER THAN BY CONTRACTOR’S FORCES:

Item Number Description and quantity at actual cost to Contractor Price

1. Materials

2. Direct Labor

3. Plant and Equipment Rental

4. Installation, Maintenance, Operation,
and Dismantling of Plant Equipment

OTHER METHOD:

Sub-Total
Add % per Contract
Total per this method

Item Number Description Price

ATTACHMENT 2
A2-34

BWP Design-Build
RFP No. 1521 - 1 -

The total price of the above requested changes and/
or extra work is $

For this requ
est the date of Substantial Completion will increase/decrease by day(s)

It is understood and agreed that any adjustment of the Contract Price associated with this Change Order includes compensation to the Cont ractor for all direct costs , indirect costs and expenses it has incurred or may incur in connection with the change in the Contractor’s Work, including but not limited to all costs, expenses and damages for any delay, disruption, acceleration, interference or h indrance and like cost s associated with, resulting from, or i ncidental to the Change Order Work. Cont ractor hereby agrees that payments under this Change Order and extension of the Contract Time, if any, represent full satisfaction and final settlement of all such costs, expens es de lays and damages set forth in the preceding sent ence and Contractor waives and releases all claims for any and all additional costs or delays in the Contract Time.

Contractor/Design-Builder’s By Title

BURBANK WATER AND POWER

The work referred to hereinbefore is hereby approved for authorization by the City Manager, as follows:

Item Number Classification Additions to Contract Price

Alterations in Contract Work

Additions to contract work

Substitutions in contract work

Alterations in contract work

Substitutions in contract work

Deductions from contract work

$

$

$

Deductions from Contract Price

$

$

$

Original Contact Price

Original Completion Date

Total of Orders
Authorized to Date

Total of this Order

Revised Contract Price

The date of Substantial Completion as of this Change Order is:

$

Date of Completion

$

$

$

New Date of Completion
ATTACHMENT 2
A2-35

BWP Design-Build
RFP No. 1521 - 1 -

I have confirmed with the Finance Division and therefore certify that the foregoing additional compensation is within the budgetary appropriation for this public improvement.

_______________________ _____________________________________ Date Dawn Roth Lindell – General Manager, BWP

CITY ATTORNEY'S APPROVAL

Approved as to Form

By___________________________________

Date

Distribution: Original – City Clerk (via Purchasing); Copies (4) – Contractor, Purchasing Department, Finance Division, Burbank Water and Power
`c
ATTACHMENT 2
A2-36

BWP Design-Build
RFP No. 1521 - 1 -

EXHIBIT F
DESIGN-BUILDER’S MANAGEMENT AND

KEY PERSONNEL CHART

ATTACHMENT 2
A2-37

Exhibit F – Design-Builder’s Management and Key Personnel Chart RFP No. 1521

EXHIBIT F

DESIGN-BUILDER’S MANAGEMENT AND KEY PERSONNEL CHART

Title Entity Name
Project Executive
Project Contact Person
Vice President
General Manager
Lead Project Manager
On Site Construction
Manager
Lead Project Engineer
Project Scheduler
Lead Project Engineer
(Protection/Control)
Substation Design Engineer
Local Representative

Civil/Structural Engineer
Electromechanical Engineer
Protection & Controls
ATTACHMENT 2
A2-38

BWP Design-Build
RFP No. 1521 - 1 -

EXHIBIT G

SUBCONTRACTOR LIST & DECLARATION

To Be Filled In / Attached By Proposer

ATTACHMENT 2
A2-39

4 EXHIBIT H

SUBCONTRACTOR/MANUFACTURER WARRANTY

FOR

REQUEST FOR PROPOSAL NO. 1521

ATTACHMENT 2
A2-40

5 SUBCONTRACTOR/MANUFACTURER WARRANTY

Project: Solar Project at the Hollywood Burbank Airport RITC,-
City of Burbank

Subcontractor/Manufacturer:

Contractor:

Subcontract/Purchase Order Date:

Scope: [identify by trade or equipment]

The undersigned Subcontractor/Manufacturer (referred to for convenience collectively as “Subc ontractor”) makes the follow ing w arranties t o the Design -Builder a nd City of Burbank with respect to the scope of work furnished by or on behalf of Subcontractor at the above referenced Project (“Work”):

1. Subcontractor warrants that (1) all equipment and m aterials furnished to the Project will be of good quality and new; (2) the Work w ill be free from defects; (3) th e Work furnished by Subcontractor will be fit for its intended function; and (4) the Work will conform to the requirements of the Contract Docu ments identified in the Agr eement between City and Design-Builder (“Contract Documents”).

2. If requested by the Design Builder or City, Subcontractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment furnished.

3. In addition to any special warran ties required by the Contract Document s, if it is determined that any portion of the Work, including labor, materials, or equipment furnished Subcontractor, its sub-subcontractors, suppliers and/or vendor(s), is defective in its workmanship or materials, at its sole cost and expense, agrees, for a period of five (5) years from the da te of Substantial Completion of the Work, without any expense whatsoever to City, to repair or replace any or all of the Work, including any work performed by others which may b e damaged or displaced by the correcti on of the defective Work. This warranty exclud es damage caused by abuse, improper or insufficient maintenance, improper operation or normal wear and tear.

4. In the event of Subcontractor’s f ailure to comply with the a bove conditions and remedy the defects or commence and diligently pursue remedy of the defects within a reasonable time, given the nature of the complaint but in no event later than ten (10) calendar days following written notifi cation, Subcontractor does hereby acknowledge the City will procee d to have said defects repaired and made good at Subcontractor’s expense, and Subcontractor will honor and pay such costs and charges upon demand by the City.

ATTACHMENT 2
A2-41

6 5. Subcontractor further agrees t o hold harmless and indemni fy the City fr om all claims of liability or damage arising as a result of the defects in the Work.

6. This warranty is for the benefit of, and may be enforced by the C ity. This warranty shall not limit the obligations of Subcontract or in the case of Work def ective when perf ormed or material defective when suppl ied, regardless of when such defect first became apparent.

7. This warranty is in addition to any other warranties available to the City and shall not limit or eliminate any reme dies otherwise available t o the City, but is cumulative to such other remedies.

8. I n the event of a claim under this warranty, the City will provide a prompt written notice of the defect or warranty claim to the warranty administrator addressed as follows:

(Name of warranty administrator)
(business address)
(phone #)
(fax #)

This warranty is hereby issued and made effective on the date listed below.

SUBCONTRACTOR/MANUFACTURER

___________________________________
(firm name)

By: ________________________________
(signature and print name)

Its: ________________________________
(print title)

Contractor’s License No.: ______________

Expiration Date: ______________________

ATTACHMENT 2
A2-42

7 EXHIBIT I

BURBANK WATER AND POWER

FIELD CONTRACTOR ORIENTATION

FOR

REQUEST FOR PROPOSAL NO. 1521

ATTACHMENT 2
A2-43

8 BURBANK WATER AND POWER

FIELD CONTRACTOR ORIENTATION

CONTRACTOR / COMPANY NAME

BWP REPRESENTATIVE CONTRACTOR REPRESENTATIVE

Phone # Phone #

JOB / WORK INFORMATION
Date of Orientation Start Date Completion Date

Number of Contractor Personnel Check the Box on Right If Contractor Will Bring Materials on Site that Require an MSDS

System Contractor Is Working On

Nature of Work On Site

SCOPE OF CONTRACTOR ORIENTATION

All Contractors On Site Are Required To Review Sections I-IV Work Covered By Section V. Special Hazards and Work Conditions Check Each Box Below that Represents the Needs of the Contractor for Section V of the Contractor Orientation
Fall Arrest Confined Space Procedures
Control of Hazardous Energy(LOTO) Welding and Cutting / Hot Work Exposed Energized Electrical Work Trenching and Excavations Respiratory Protection Traffic Delineation
Asbestos Containing Materials Other

The Following Procedures and Rules Have Been Developed To Protect The Employees and Equipment of Burbank Water and Power. It Is Not Meant To Be All Inclusive Nor Does It Relieve Any Contractor Of Any Of Their Responsibility As Defined In The Contract, Or Any Federal, State or Local Regulations

ATTACHMENT 2
A2-44

9 AREAS OF SPECIAL CONCERN

1.______________________________________________________________________

2.______________________________________________________________________

3.______________________________________________________________________

4.______________________________________________________________________

CONTRACTOR

EMPLOYEE NOTIFICATION
The Contractor is responsible for informing their personnel of the above rules, regulations and information. All emplo yees who will be on site to perform work sha ll sign the Contractor Employee Notification List. Failure to sign the Contractor Employee Notification List may result in removal of the Contractor employee from site.

CONTRACTOR INJURY/ILLNESS REPORTS
The Contractor shall provide an injur y/illness report to BWP for any work r elated injury/illness that occurs on site within 24 hours of the event causing the injury/illness.

VIOLATIONS
Violations of the above rules and regulations including Attachment A and Code of Safe Practices may result in the employee and/or contractor being removed from the site.

BWP Representative_________________ Contractor Representative______________________

ATTACHMENT A & Code of Safe Work Practices
Attachment A and the Code of Safe Work Pr actices has been received and reviewed with all employees that will be involved with BWP projects.

Contractor Representative_____________________________

C
ompetent and Qualified Person Designation Explanation Definitions:

Competent Person - mean s one who is capable of identifying existing and predictable hazards in the surroundings or working conditions whi ch are unsanitary, hazardous, or dangerous to employees, AND who has the authorizatio n to take prompt corrective measures to eliminate them.

Qualified P erson - means one who, by poss ession of a recognized degree, certificate, or professional standing, or who by extensive knowledge, training and experience, has successfully demonstrated his/her ability to solve or resolve problems relating to the subjec t matter, the work or the p roject. Note: Generally speaking, a "Qu alified Person" is considered to have a h igher level of expertise than a "Competent Person". Explanation of Competent and Qualified Form: 29 CFR 1926 and 29 CFR 1910 (OSHA) requires your com pany to provide Competent P ersons and/or Qualified Persons for various types of w ork. The Competent and Qua lified Form has multiple boxes to be checked indicating the person(s) designated as " Competent/Qualified Person" for your company, depending on the s cope of work. By checking e ach appropriate box as "Competent/Qualified Person" on the Competent and Qualifi ed Form you are also indicating the person named has met any OSHA requirements for pe rforming duties at this level of responsibility and has the authori ty to take prompt correc tive measures to eliminate hazards and ATTACHMENT 2
A2-45

10 enforce safety rules for your company. Some of the check boxes on the Competent and Qualified Form may not have a specific OSH A regulation that mentions a "Competent or Qualified Person", however, this form is used to ensur e BWP co ntacts the person(s) with the appropriate training and authority t o take the actions necessary for the safety of your company's employe es.

While BWP do es not require documentation prior to beginning work on site, BW P reserves the right to request documentation of the training and qualifications of those personnel designated as "Competent/Qualified Person" on the Competent and Qualified Form should manage ment deem it necessary at a later date.

The Contractor Represe ntative prints the name of t he pe rson(s) on the form who is to be the "Competent or Qualified Person" and checks each item in their scope of work for which they will be the "Competent or Qualified Person", if one person is to be the sole "Competent or Qual ified Person", then the cont ractor should ha ve each item in their scope of work c hecked under his name. If multiple personnel, or personnel with varying qualifications are needed, write the na me of the "Competent or Qualified Person" in the space provided and check only those items i n the scope of work for which they will be the "Competent or Qualified Person".

Competent and Qualified Form
Based upon their training and experience, the following personnel have the authority of a Competent / Qualified Person Representative for the specific types of work noted by the check marks in the table below.

Name Of Competent / Qualified Person:

Fall Arrest Scaffold Requirements Welding & Cutting/Hot Work Control of Hazardous Energy(LOTO) Respiratory Protection Trenching and Excavations Exposed Energized Electrical Work Confined Space Procedure Process Safety Management Name Of Competent / Qualified Person:

Fall Arrest Scaffold Requirements Welding & Cutting/Hot Work Control of Hazardous Energy(LOTO) Respiratory Protection Trenching and Excavations Exposed Energized Electrical Work Confined Space Procedure Process Safety Management Name Of Competent / Qualified Person:

Fall Arrest Scaffold Requirements Welding & Cutting/Hot Work Control of Hazardous Energy(LOTO) Respiratory Protection Trenching and Excavations Exposed Energized Electrical Work Confined Space Procedure Process Safety Management Name Of Competent / Qualified Person:

Fall Arrest Scaffold Requirements Welding & Cutting/Hot Work Control of Hazardous Energy(LOTO) Respiratory Protection Trenching and Excavations Exposed Energized Electrical Work Confined Space Procedure Process Safety Management

ATTACHMENT 2
A2-46

11 CONTRACTOR EVACUATION LIST

CONTRACTOR/COMPANY: _____________________________________________

DATE ENTERING SITE: _________________________________________________

DATE LEAVING SITE: __________________________________________________

The following Supervisor will account for all personnel that work for the above nam ed Contractor during an Emergency Evacuation.

1.____________________________________________________________________

INFORMATION GUIDE

EMERGENCY # ________________________

BWP REPRESENTATIVE #___________________________________________________

AREA SUPERVISOR #________________________________________________________

EVACUATION AREA(S):

PRIMARY =.__________________________________________________________________

SECONDARY = _______________________________________________________________

EMERGENCY PROCEDURES:

A) Medical, Fire and Other Emergencies

1. For medical, fire and other emergencies the emergency dispatch telephone number is (818) 238-3000.

The person making the call should be prepared to relay the following information:
- Type of emergency
- Location of emergency
- Severity of emergency
- Name of caller and telephone number call is being made from b) Evacuation Plan

1. Outside contractor personnel shall assemble at _____________________ (Site Specific.)

2. Supervisors shall be responsible to ac count for their personne l in t he assig ned areas. A Contractor Evacuation List w ill be provided by the Contract or Representatives prior to any personnel beginning work or ent ering the site. The Contractor Representative will also insure that all of the C ontractor's personnel enter ing the site a re informed of their evacuation area.

3. P ersonnel shall remain at their assembly areas until released by the BWP designee in charge of the emergency scene.

ATTACHMENT 2
A2-47

12 CONTRACTOR EMPLOYEE NOTIFICATION LIST
I have been inform ed, a nd understand the rule s; reg ulations and information contained in the Contractor Orientation, and unde rstand violation of these rules may result in my removal from site.

Print Name Signature Date

1. 2.

3. 4.

5. 6.

7. 8.

9. 10.

11. 12.

13. 14.

15. 16.

17. 18.

ATTACHMENT 2
A2-48

13 Attachment A

I. SECURITY
a) Identification and Access

1. No employee shall enter any electrical enclosure o r substation without prior approval and supervision.
b) Materials and Equipment

1. The foll owing are specifi cally prohibited on si te: Firearms or ot her deadly weapons, explosives or fireworks, alcoholic beverages, narcotics or non- prescription drugs, pets, open fires, posting of unauthorized signs.

2. Material and equi pment shall be stored only i n pre-approved areas. Unless prior approval is obtained, the use of BWP trash b ins, dumpsters, etc., is not allowed. Contractors must make arrangements for storage and removal of all waste products or trash.

3. The use of cameras or video equipment shall be prohibited unless prior arrangements have been made.

II. HAZARDOUS MATERIALS AND HAZARDOUS WASTE
a) The following Hazardous Materials are found on site in some BWP facilities:

ATTACHMENT 2
A2-49

BWP Design-Build - Guaranty
RFP No. 1521 - 1-
• _______________________________
• _______________________________
• _______________________________
• _______________________________
• _______________________________
b) All Contractor personnel working on site must be aware of the presence and hazards of these materials. Any personnel working in the immediate area must be notified of the appropriate actions to take in an emergency involving these materials.

III. EMERGENCY P ROCEDURES
a) For medical, fire and other emergencies the appropriate BWP personnel (defined by BWP at beginning of the project) be notified using the company phone system or by cell phone.

1. The person making the call should be prepared to relay the following information:
- Type of emergency.
- Location of emergency.
- Severity of emergency.
- Name of caller and telephone number call is being made from.

2. The person making the call shall not break communication until di rected to by the BWP person. Depending on the BWP location Medical and chemical emergencies may be announced over the Public Address System.

ATTACHMENT 2
A2-50

BWP Design-Build - Guaranty
RFP No. 1521 - 2-
IV. GENERAL SAFETY
a) Work Appare l and Hearing Protection

1. Contr actor em ployees shall wear the ap propriate clothing and PPE as required by regulatory standards for the tasks they are assigned.
b) Vehicular Safety

1. Unless otherwise stated, only company owned or rented vehicles will be allowed on City of Burbank sites. All co ntractor employee personal vehicles shal l park outside unless otherwise designated.

2. Seatbelts shall be worn.

3. Personnel shall not ride in the bed of the truck, on the running boards, fenders, etc., of any vehicle.

4. All persons operating motor vehicles must have the appropri ate license for the vehicle being operated.

5. Cell phones are not to be used while driving. .
c) Housekeeping

1. Special attention shall be given to keeping the inside of the structures and surrounding grounds clean a nd fr ee from tra sh and debris. Work areas and storage areas shall be continuously cleaned each workday.

3. Material and supplies shall be stored in an orderly manner to prevent their falling or spreading, and to eliminate tripping and stumbling hazards.

4. Flammable an d c ombustible liquids shall only be stor ed, or dispensed, using Underwriters Laboratories or Factory Mutual listed safety containers an d only in approved quantities.

6. Upon completion of work, all equipment, materi al and waste shall be remov ed from the facility or job site.
d) Hazardous or Toxic Mat
erials

1. The Contractor shall provide Material Safety Data Sheets (MSDS)/Safety Data Sheets(SDS) covering all hazardous materials furnished under or otherwise associated with the work under this c ontract in acc ordance with applicable f ederal, state and local laws. Before entering the site, the contractor must provide a copy of all the Material Safety Data Sheets/Safety Data Sheets(SDS) for the materials that will be used on site to perform their work, or any of the ir subcontractor’s work. Should addit ional materials be needed after work has begun, the materials must receive approval by BWP and the MSDS/SDS must be on site and supplied to BWP before the material is brought on site.

2. All hazardous and toxic material brought on site, or generated by the work process, shall be clearly labeled with the Contractor's name. All containers must have the appropriate labels containing the information on the hazards of the materials. The minimum requirements for day use containers or similar containers that do not h ave the appropriate ATTACHMENT 2
A2-51

BWP Design-Build - Guaranty
RFP No. 1521 - 3-
manufacturers warning label are: the trade name of the product, a hazard warning such as the NFPA 704 system or H.M.I.S. System.

3. Hazardous and toxic ma terials shall only be stored in pre-approved locations.

4. Contr actors are responsible for all hazardous materi als or toxic materials brought on site or generated by their work and shall properly dispose of all hazardous and toxic material for which they ar e responsible at their c ost unless prior arrangements are made.

Contractors sha ll immediately report any spills to the appropriate City of Burbank representative.

5. Hazardous Waste: For projects that will generate hazardous waste (i.e. abatement or decon work etc.), the following shall be followed.
• Hazardous Waste M anifests shall be sign by authorized City of Burbank employees only.
• Hazardous Waste shall be packaged and labeled per DOT guidelines. (Added) e) Fire Equipment and Fire Hydrants

1. Fire equipment and fire hydrants shall not be used unless there is an emer gency or unless prior approval has been given.

2. To prevent hydrant damage when using a fire hydrant, it shall be opened all the way when in use and closed all the way when not in use.

3. I f a C ity fire extinguisher i s use d, it shall be turned in to the appropriate City representative.
f) Ladders

1. A ll ladders and use of ladders shall comply with CCR Title 8- 1675, 29 CFR 1910.25, 1910.26 and 1910. 27.

2. Site Specific Rules regarding ladders are the following:
• Portable metal ladd ers shall not be used in proximity to ene rgized electrical equipment.
• Ladders shall not be used as scaffold platforms.
• Boxes, chairs, etc., shall not be used as ladders.
• Portable straight ladders shall be used only if they have non-skid bases. • When working from a portable ladder, employees shall ensure that the ladder is securely placed, held, tied, or otherwise made secure to prevent slipping or falling. • Personnel working from portable ladders shall wear fall arrest equipment whenever they are exposed to a fall of 24 feet or more.
g) Cranes, Hois ts, For klifts and Heavy Equipment

1. Only qualified persons shall operate any crane, hoist, forklift or heavy equipment.

2. All Contractor hoists and cranes must meet the req uirements as specified in C CR Title 8 Subchapter 7, 29 CFR 1910 and 29 CFR 1926.

3. When operating boom -type lifting or hoisting equipment, the minimum clearance is 10 feet when the overhead line is carrying between 600 and 50,000 volts. The contractor will notify BWP whenever work is to be performed in close proximity to energized li nes ATTACHMENT 2
A2-52

BWP Design-Build - Guaranty
RFP No. 1521 - 4-
and equipment. Permit s will be obtained as required by the City of Burbank to perform such work.

4. Upon request, the Contractor must provide the inspection records of any Contractor supplied hoist or crane to be used on site.

5. All fo rklift operator s m ust have a license/cert ification as being qualified to operate a forklift and a current vali d evaluation indicating they have the skills necessary for the type of forklift they will be using.
h) Area Protect ion and Access

1. Work area pro tection is the ade quate protecting of all employees by the use of suitable barriers, warning signs, lights, flags, flagmen, etc., as the job requires on approaches to work areas, excavations , open manholes, floor hole s, etc. Proper work area protection shall be preplanned.

2. Safe access shall be provided to all work areas.

3. Any open floor hole with a vertical dimension greater than four (4) feet shall have a suitable barrier with appropria tely constructed guardrails , midrails and toeboards, or suitable cover, designed for 2 times the intended load. For short duration jobs, warning tape with signs denoting that 100% Fall Protection is needed, in conjunction with a standby employee to ensure pe rsonnel entering the desi gnated area wear the appropriate fall arrest equipment, may be utilized. The bar ricade tape must be placed at least six (6) feet from the edge of the fall exposure and the standby employee must be present AT ALL TIMES WHEN THE FLOOR HOLE IS OPEN.

4. Open m anholes are requi red to have a suitable barrier with a ppropriately constructed guardrails, midrails and toeboards.

5. Any Leading Edge type of fall exposure (roof, walkway without handrails etc.) in excess of four (4) feet shall be pr otected appropriately constructed guard rails, midrails and toeboards. For short duration jobs, warning tape with signs denoting 100% Fall Protection is needed may be used. The barricade tape must be placed at least six (6) feet from the edge of the fa ll exposure. All personnel e ntering past the barricade tape must wear the appropriate fall arrest equipment.
i) Tools and Equipment

1. All portable power tools, portable lighting, and other temporary equipment require the use of a Ground Fault Circuit Interrupter (GFCI).

2. Electrical equ ipment a nd tools shall be wired and grounded as r equired by applicable electrical codes.

3. Appropriate guarding shall be used on tools and equipment.

4. Defective tools and equipment must be identified as defective by taggin g, marking etc. and may not be used until repaired.

5. Use of BWP tools or equi pment is forbidden unless author ized by the BWP Representative.
j) Operation and Modification of Equipment
ATTACHMENT 2
A2-53

BWP Design-Build - Guaranty
RFP No. 1521 - 5-

1. C ontractor employees shall not operate any switch, valve, breaker , e tc.; unless they receive approval from their BWP representative for the equipment they need to operate.

2. Contractor employees shall not make any circuit logic, control modifications, or other modification to equipment without approval from the appropriate BWP representative.

V. S PECIAL HAZARDS AND WORK CONDITIONS
a) Fall Arrest

1. Fall arrest equipment shall be properly used when exposed to a fall in excess of six (6) feet, when the use of other fall protection means is not practical. Fall protection s hall be provided 100% of the time personnel are exposed to a fall in excess of si x (6) feet, with the exception of working from a portable ladder with a fall exposure of twenty- four (24) feet in height or lower. Any time personnel work from a portable ladd er in excess of than twenty-four (24) feet, or climb a fixed ladder that has a fall exposure greater than twenty- four (24) feet; the appropriate fall protection measures must be taken. Appropr iate fall arrest equipment is considered the following:
i. A full body harness is required for use as part of the fall arrest system. A body belt or a chest harness is not considered proper fall arrest equipment. ii. All lanyards used for fall arrest shall have double locking snap hooks. iii. All lanyards used for fall arrest shall have a shock absorber that limits the arresting force to less than 900 pounds in the event of a fall.
iv. Those devices which limit the fall distance in such a ma nner as to ensure the arresting force does not exceed 900 pounds may be used wit hout a shock absorber (e.g.:
retractable lifelines, ladder clamps, etc.).

Note: Floor Holes and Leading Edge Fall Exposures require fall protection or fall arrest at an exposure of 4 feet.

2. Additional requirements and information on fall protection may be found in 29 CFR SUBPART M.
b) Control of H az ardous Energy (Lockout/Tagout, LOTO)

1. BWP requires all cont ractors to comply with 29 CFR 1910.147 – Control of Hazardous Energy (Lockout/Tagout) Procedures.

2. No personnel shall work in such proximity to any pa rt of an electric power circuit that he may contact in the performance of the w ork unless protected against electrical shock.

Effective protection is considered to be the following:
i. De-energize the circuit.
ii. If the circuit is required to be worke d on while energized, it mu st be guarded by effective insulation o r other means and must conform to the gui delines for work performed on energized equipment, as found in 29 CFR 1910.269 and the additional requirements CCR Title 8.
c) Exposed Energized Work

1. Any crane or overhead wor k shall keep p roper clearance from energized lines and equipment. A minimum of 1 0 feet of clearance is required for energized lines up to 50 kV. An additional 0.4 inches for each 1kV over 50kV will be added to the minimum 10 foot clearance.

ATTACHMENT 2
A2-54

BWP Design-Build - Guaranty
RFP No. 1521 - 6-

2. If work will b e in close proxim ity to energized lines or equipment, a r equest for a clearance is req uired. There is a 48 hour notice requirement. Please contact the BWP Energy Control Center at 818-238-3750.

3. Warning signs shall be posted in ar eas w here possible work nea r or u nder ove rhead power lines is to be conducted.

d) Respiratory Protection

1. Respirator protection shall be worn when required. The Contractor's Respiratory Program shall meet the applicable OSHA standard for the operation o r maintenance to be performed. Upon reque st, the records of your respirator progr am shall be provided to BWP for the personnel needing to use respiratory protection.

2. Additi onal information on respiratory protection may be found in 29 CFR 1910.134 and 1910.120 and CCR Title 8, Section 5144.

e) Asbestos Containing Mat eri
als

1. Contractor shall be notified of types and locations of asbestos containing materials.

2. Contractors handling or removing asbestos shall be properly trained. Removal projects shall follo w all regulatory guidelines , including pe rmits, notifications, monitoring and disposal. Copies of all monitoring reports shall be submitted to project manager.

e) Confined Space

1. Confined Space Entry Permit shall be obtained before entering into any c onfined space.

The Confined Space Entry P ermit shall be obtained from the appropr iate BWP Representative. All confined space work shall meet the requirements of OSHA and CCR regulations.

2. Responsibilities:
i. Contractors Representatives shall coordinate their requests for a Confined Space Permit through their BWP representative. Unle ss other arrangements are made t hrough the BWP representative, it is the Contractor's responsibility to assign a qualified person to authorize a Confined Space Permit, as the Person in Charge of the Work, and to provide a rescue plan, the pe rsonnel, equipm ent and/or devices necessary to ensure the requirements of the Confined Space Permit are met.
f) Welding and Cutting/Hot Work

1. A welding and cutting/ hot work permit is requir ed whenever welding, cutting or heating is done. Welding and cut ting permits sh all be coordinated through the appropriate BWP representative. All appropriate safety precautions shall be followed.

2. When welding or cutting in elevated positions, precauti ons s hall be taken to preve nt sparks and hot metal from falling on people and equipment below. Walls, roofs, ceilings, pipes, tanks and partitions shall be assessed to determine if welding or cutting on them will cause a fire due to conductive heat, radiat ed he at or sparks from the hot wo rk ATTACHMENT 2
A2-55

BWP Design-Build - Guaranty
RFP No. 1521 - 7-
process. Ductwork shall be considered when pe rforming welding; cutting or other hot work that might carry sparks or otherwise causes a fire at a distant loc ation. The ducts must be protected, or shut down to prevent fires due to the welding, cutting or hot work if is determined the wor k may cause a f ire. The person requesting the permit or the BWP Representative shall notify the appropriate Operations Area Su pervisor when beginning work, and at the end of each shift that the day's hot work has concluded until the hot work being performed under the permit is complete.

3. Welding screens shall be used while working next to other employees or walkways and stairways.

4. Suitable fire extinguishing equipment shall be immediately ava ilable at all location s where welding and cutting work is being performed.

5. A fire watch shall be pr ovided during and after the work is completed to ensure no fire hazards exist. The minimum length of time for a fire watch is 30 minutes, however, based upon the determination of the BWP Representative, the fire watch may be required for up to an hour.
g) Trenchi ng and Excavations

1. Prior to digging a trench or excavation, a determination of underground installations must be performed. Area to be excava ted must be marked and Und erground Service Alert notified by calling 811. The l ayout of the excavation is requi red to be compliant with CCR Title 8, Section 4216.

2. All excavations 5 foot or deeper shall be shored or sloped in accordance with Federal, State and local standards. Contractor shall obtain all required permits prior to performing the work.

3. All excavations 4 feet or deeper shall have a ladder for access into the excavation wit h no more than 25 feet of travel in any direction.

4. Spoil piles shall be kept a minimum of 2 feet from the edge of the excavation.

5. The soil type shall be determined f or excavations and trenches.

6. All excavations or trench operations shall be inspected and supervised by a “Competent Person”.

ATTACHMENT 2
A2-56

BWP Design-Build 00702-1
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

EXHIBIT J

GENERAL CONDITIONS

For

REQUEST FOR PROPOSAL NO. 1521

ATTACHMENT 2
A2-57
General Conditions Index
BWP Design-Build 00702-2
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

TABLE OF CONTENTS

....................................................................................................................... Page

1. GENERAL PROVISIONS ....................................................................................... 4

1.1 DEFINITIONS. ............................................................................................................... 4

1.2 CORRELATION AND INTENT OF CONTRACT DOCUMENTS. ................................... 9

1.3 OWNERSHIP AND USE OF DOCUMENTS. ............................................................... 10

2. OWNER Error! Bookmark not defined.

2.1 SUPERVISION AND INSPECTION BY CITY .............................................................. 12

3. DESIGN-BUILDER .............................................................................................. 13

3.1 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS ......................... 13

3.2 LABOR AND MATERIALS ........................................................................................... 14

3.3 S UBSTITUTIONS ........................................................................................................ 15

3.4 WARRANTY ................................................................................................................ 16

3.5 TAXES ........................................................................................................................ 17

3.6 APPLICABLE LAW ...................................................................................................... 17

3.7 PERMITS, LICENSES AND INSPECTIONS ................................................................ 17

3.8 SCHEDULE ................................................................................................................. 18

3.9 RECORD DOCUMENTS AND AS-BUILTS ................................................................. 19

3.10 INTELLECTUAL PROPERTY AND PATENT RIGHTS ................................................ 19

3.11 SUBMITTALS AND SHOP DRAWINGS ...................................................................... 20

3.12 USE OF SITE AND OTHER AREAS ........................................................................... 21

3.13 INDEMNITY................................................................................................................. 22

4. ADMINISTRATION OF THE CONTRACT .............................................................. 23

4.1 ROLE OF CITY’S ENGINEER ..................................................................................... 23

4.2 CLAIMS AND DISPUTE RESOLUTION ...................................................................... 23

5. SUBCONTRACTORS, SUPPLIERS AND CONSULTANTS .................................... 28

5.1 SUBCONTRACTING ACT ........................................................................................... 28

5.2 OBJ
ECTION ................................................................................................................ 29

5.3 RESPONSIBILITY ....................................................................................................... 29

5.4 COORDINATION ........................................................................................................ 29

5.5 SUBCONTRACT AGREEMENTS ............................................................................... 29

5.6 ASSIGNMENT ............................................................................................................. 30

6. PAYMENTS TO SUBCONTRACTORS AND STOP NOTICE CLAIMS ..................... 30

6.1 PROMPT PAYMENT ................................................................................................... 30

6.2 STOP NOTICE CLAIMS .............................................................................................. 30

7. CHANGES IN THE WORK ................................................................................... 31

7.1 CHANGES .................................................................................................................. 31

7.2 AUTHORITY TO ORDER CHANGES.......................................................................... 31

7.3 OWNER INITIATED CHANGE NOTICE ...................................................................... 32

7.4 DESIGN-BUILDER INITIATED CHANGE ORDER REQUEST .................................... 32

7.5 CHANGE ORDER ....................................................................................................... 33

7.6 EXCLUDED COSTS .................................................................................................... 36

7.7 ALLOWABLE COST BASIS ........................................................................................ 36

7.8 AUDIT RIGHTS ........................................................................................................... 36

7.9 DEDUCTION FROM WORK ........................................................................................ 37

7.10 DESIGN-BUILDER AND SURETIES BOUND ............................................................. 37

7.11 TIME AND MATERIAL CHANGE ORDER (TMCO) ..................................................... 37 ATTACHMENT 2
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TABLE OF CONTENTS

....................................................................................................................... Page

8. TIME 38

8.1 EXTRAORDINARY MEASURES ................................................................................. 39

8.2 TIME EXTENSIONS .................................................................................................... 39

9. PAYMENTS AND COMPLETION ......................................................................... 41

9.1 PAYMENTS TO DESIGN-BUILDER ............................................................................ 41

9.2 APPLICATION FOR PAYMENT .................................................................................. 42

9.3 PAYMENT ................................................................................................................... 42

9.4 SUBSTANTIAL COMPLETION.................................................................................... 43

9.5 FINAL COMPLETION AND FINAL PAYMENT ............................................................ 44

9.6 OWNER TO WITHHOLD PAYMENT ........................................................................... 45

9.7 DISPUTED ITEMS ...................................................................................................... 45

9.8 WAIVER OF CLAIMS .................................................................................................. 46

10. PROTECTION OF PERSONS AND PROPERTY .................................................... 46

10.1 SAFETY PRACTICES ................................................................................................. 46

11. BONDS AND INSURANCE .................................................................................. 48

11.1 BONDS ....................................................................................................................... 48

11.2 INSURANCE – GENERAL REQUIREMENTS ............................................................. 49

11.3 WORKERS COMPENSATION/EMPLOYER’S LIABILITY INSURANCE ...................... 50

11.4 COMMERCIAL GENERAL/PUBLIC LIABILITY INSURANCE ...................................... 50

11.5 COMPREHENSIVE AUTOMOBILE LIABILITY INSURANCE COVERAGE ................. 51

11.6 PROFESSIONAL LIABILITY INSURANCE .................................................................. 51

11.7 RESPONSIBILITY FOR DAMAGE AND THEFT ......................................................... 52

12. QUALITY AND CORRECTION OF WORK ............................................................ 53

12.1 QUALITY OF WORK AND MATERIAL ........................................................................ 53

12.2 UNCOVERING OF WORK .......................................................................................... 53

12.3 CORRECTION OF WORK .......................................................................................... 54

13. MISCELLANEOUS PROVISIONS ......................................................................... 54

13.1 GOVERNING LAW ...................................................................................................... 54

13.2 SUCCESSORS AND ASSIGNS .................................................................................. 55

13.3 NO PERSONAL LIABILITY ......................................................................................... 55

13.4 INTERFERENCE ........................................................................................................ 55

13.5 CLEAN PREMISES ..................................................................................................... 55

13.6 TELEPHONE ............................................................................................................... 55

13.7 SANITARY FACILITIES .............................................................................................. 55

13.8 ADVERTISING ............................................................................................................ 56

14. TERMINATION OR SUSPENSION OF THE CONTRACT ....................................... 56

14.1 TERMINATION FOR DEFAULT .................................................................................. 56

14.2 TERMINATION FOR CONVENIENCE ........................................................................ 57

14.3 SUSPENSION BY OWNER FOR CONVENIENCE ..................................................... 58

15. LABOR CODE REQUIREMENTS AND PREVAILING WAGE RATES ..................... 58

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GENERAL CONDITIONS

1. GENERAL PROVISIONS

1.1 DEFINITIONS.

Whenever the words defined in this Section, or pronouns use d in their stead, occur in any of the C ontract Documents, they shall have the me aning herein given unless the context clearly indicates to the contrary.

Affidavit of Final Completion. A sworn affidavit from Design-B uilder and all Design-Build
Team Members identified in the Agreement submitted to the City in a form approved by the Ci ty tha t the Work has been completed in strict accordance with the Cont ract Documents, no lawful debts for labor or materials are outstanding, all reque sts for payment of undisp uted fu nds are accurate, complete and final and no addi tional compensation above the final payment is due under the Contract, there is no existing default by Design- Builder or pending claim by a third party, and, upon receipt of fi nal payment, Design- Builder and its Sub contractors acknowledge t hat the City wil l be released from any claims or liability for additional sums on account of undisputed Work.

Agreement.

When capitalized, means document signed by the City and Design- Builder for performance of the W ork, as amended from time to time, whi ch sets forth t he rights and obligations of the Parties, including all exhibits and attachments.

Applicable Laws .

All laws, statutes, codes, ordinances, and regulations of governmental authorities having jurisdictio n over the Project, including, but not limited to, Applicable Law relating to disabled access.

As-Built Drawings .

A set of drawings updated and marked to show deviations made during construction, details in the Work not previously s hown, changes to exist ing conditions found to differ from those shown on exi sting drawings, and the ac tual installed position of equipment and fixtures.

BESS. The battery ener
gy storage system, as further described in BESS General Specifications, to be installed at the Project after Final Completion, including all ancillary components.

Certificate of Final Acceptance. Th
e formal written acknowledgement issued by the City
to Design-Builder that the Work has been fu lly completed. At the City’s discret ion, the Certificate of Final Acceptance and Notice of Completion may be used interchangeably.

Certificate of
Substantial Completio n. The formal written acknowledgement is sued by the City to Design-Builder that the Project has attained Substantial Completion.

Change. Substitutions, alt
erations, additions or deletions in the Work.

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Change Noti ce. A document i ssued by Cit y to Design -Builder detailing a proposed change in t he Work, s tating a proposed basis for adjustme nt, if any, in the Contract Price and Contract Time.

Change Order . A
written order implementing changes in the Work for which adjustments to the Contract Price and Co ntract Time as those terms are defined in t he Agreement, if any, have been agreed upon prior to the issuance of the change order.

May be used interchangeably with “Change and Extra Work Order”.

Change Order Request . “C
OR”. A doc ument submitted at the Des ign-Builder’s own initiative to the City requesting that a Change Order be issued.

Change Proposal. A proposal for a Chang e Or
der submitted by the Design- Builder to
the City, describing revisions to the Work and the basis for adjus tment of the Contract Price and Contract Time, either in respons e to City’s Ch ange Notice or at the Desi gn- Builder’s own initiative in connection with a Change Order Request.

City.

The City of Burbank.

Claim. A demand by Design- B
uilder for a time extension which is disputed by the City or payment of money or damages for work performed in connection with this Agreement that is disputed by the City.

Construction Documents .

All technical drawings, shop drawings, working drawings, schedules, diagrams, specifications and samples, setting forth in detail the requirements necessary for Construction of the Proj ect in accordance with the Contract Documents, approved by the City and inc orporated into this Agreement after such approval. All amendments to the Con struction Do cuments mus t be approv ed by the City prior to incorporation into t he Agreement and prior to the construction of the Work affected by the change.

Contract. Depending on t
he context, "Contract" shall mean the Agreement, or the Contract Docum ents, which est ablish the respective rights and obligations of the Parties.

Contract Documents. The docume
nts described in Article 1 of the Agreement.

Contract Price. The Contract Price indicated in the Agreement.

CPM Project Schedule. The s ched
ule r eferred to in section 3.8 of these General
Conditions.

Day. As u sed t
hroughout the Agreement the terms " Day" o r "Days" mean calendar days unless otherwise specifically designated.

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Department. B urbank Water and Power.

Design and Performance C rit eria. Those minimum performance a nd quality standards contained in the P reliminary Design Documents provided to the De sign-Builder by the City.

Design-Build
er. The Person entering into a Contract with the City for the Work, its agents and representatives.

Design Documents . A
ll drawing s (inc luding plans, elevations, sections, details and diagrams), specifications , repo rts, calculations, records and submit tals necessary for the design of the Project in accordance with the Contract Documents, following approval thereof by the City and others as required by the Contract Documents.

Design-Buil
d Team Members. The Per sons i dentified as such in the Recitals to the Agreement.

Engineer. The Person designated as the City’s representative for the Projec t in the
Agreement. Interchangeable with the term “City’s Engineer”

Final Compl etion.

Th e st age of performance when al l Work has been completed in accordance with the Contract Documents including, without limitation, all correction or completion items noted in the Certificate of Substantial Completion. The determination of the date o f Final Completion shall be made reasonably and in good faith by the City and shall be fixed in a Certificate of Final Acceptance issued by City.

General Manager. T
he General Manager of Burbank Water and Power, or his or her designee.

Governmental Approval. A
ny approval, authorization, certification, consent, exemption, filing, per mit, registration, or ruling req uired to design and construct the Project, excluding only those approvals identified as the responsibility of the City in the Contract Documents.

Lead Design-B
uild Team Member . Th e entity with overall management responsibi lity for the Project.

Modification.

A modification is (1) a written amendment to the Cont ract signed by both Parties; (2) a Change Order signed by both Parties; (3) a Uni lateral Time and Material Change Order issued by the City.

Notice of Completion . A public notice of completion fil ed in the Registrar/Recorder's Office of the County of Los A ngeles, with respect to, as applicable: Final Completion with respect to the Work.

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Notice to Proceed. The written notice given by the City t o Design -Builder whic h authorizes the Design-Builder to commence performance of the Work.

Parties. T he Parties to the Agreement, City and Design-Builder.

Person. Any individual, co rpor
ation, company, joint venture, association, partnership, trust or unincorporated organization.

Preliminary De
sign Documents. Preliminary Design Documents include the documents so defined in Article 1 of the Agreement.

Project Manager . The indi vidual designated by Design -Builder as such pursuant to section 5.5.1 of the Agreement.

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Project S chedule. Th e schedule for perfo rmance of the Work attached to t he Agreement pursuant to which Design-Builder has agreed to complet e the Work. The Project S chedule shall be adjusted pursuant to the provisions of the Contract Documents.

Record Documents. The do cuments described in Paragraph 3.9 herein.

Recovery Sche dul
e. A plan submitted by Des ign-Builder in the event the Work is lagging behind the CPM Project S chedule, demonstrating Design- Builder’s proposed plan to regain l ost s chedule progress and to achieve Sub stantial Completion in accordance with the requirements of the Contract Documents.

Request for Informati on.

A documen t issued by the Design- Builder r equesting
information or clarification of the Contract Documents.

Services. When capitalized, m
eans the sum tot al of produc tive and operative efforts used to generate t he results as specified, indicated or implied in the C ontract Documents, including all technical and professional services and Construction Documents. The term Services when used throughout the Cont ract Documents is interchangeable with the term "Work."

Shop Drawings. S ho
p drawings shall mean drawings, diagrams, performance curves, data sheets, sche dules, templates, patterns, reports, calculations, instruc tions, measurements, and s imilar in formation, for the W ork furnished by or o n behalf of Design-Builder to illustrate a portion of the Work.

Specifications. The Technical Specific ati
ons included in the Preliminary Design
Documents.

Subcontractor. A ny P
erson who enters into a sub contract with Des ign-Builder to perform any par t o f the Work. Unless other wise specified, Subcontractor excludes suppliers, manufacturers and distributors.

Substantial Co m pletion. The stage in the progress of the Work when the Work or designated port ion thereof is sufficiently comp lete i n accordance with the Contr act Documents so the City can occupy or utilize the W ork fo r its i ntended purpose; provided, however, that Substantial Compl etion of the entire Work shall not occur until the requirements of paragraph 9.4 herein have been satisfied.

Supplier. A n y Person , other than an employee of Design- Builder, who suppli es machinery, equipment, materials or systems to Design-B uilder or any Subcontractor in connection with performance of the Work.

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Time and M ater ial Change Order . A Time and Material Change Or der (“TMCO”), unilaterally issued by the City, instructing Desi gn-Builder t o perform Work, indicating expressly the intention to treat the items as changes in the Work, and s etting forth the kind, char acter and lim its of the W ork as far a s they can be ascertained, the terms under which changes to the Contract Price and Contract Time, if any, will be determined and the not to exceed estim ated cost of the change. Upon final det ermination of the allowable costs, the Change Order shall b e finalized to set fort h the final adjustment to the Contract Price.

Turnkey Contract Ba
sis. For purposes of this Contract, the term “Turnkey Contract Basis” means providing a completely finished facility ready for occupancy and use by the City in accordance with the requireme nts of th e Design Docu ments, at a cost not exceeding the Contract Pri ce, within the Contract Time, with Design- Builder assuming all risks relating to cost overruns, defects an d delays arising from the des ign and/or the method of construction.

Work. A
ll o f the adm inistrative, design, engineering, professional, manufacturing, supply, installation, construction, supervision, management, t esting, verification, labor, materials, equipment, maintenance, documentation and other duties and services to be furnished and provided by Desi gn-Builder as required by the Contract Document s, including all efforts necessary and appropriate to achieve Final Co mpletion of the Project, except for those effo rts which the Co ntract Doc uments specify will be performed by the City or other Persons.

Work Directive.

A written order signed by t he City in the event of any dispute regarding the scope of the Work. T he Work Directive will describe the Work in question and will state the basis for determining compensation, if any, pending resolution of the dispute.

1.2 CO
RRELATION AND INTENT OF CONTRACT DOCUMENTS.

1.2.1 Com
plimentary Documents. It is the intent of the City and Design-Builder that the Contract Docum ents inc lude all items necessa ry for pro per execution and completion of the Work. The Contract Documents are complimentary, and what is required by one shall be as binding as if required by all.

1.2.2 Sev
erability. In the ev ent any provision of the Contract D ocuments shall be deemed illegal, invalid, unenforceable and/or void by a court of competent jurisdiction or any other governmental agency of com petent jurisdiction, such provision shall be deemed to be severed and d eleted from the Contract Documents, and a ll rema ining provisions hereof shall, in other respects, continue in full force and effect.

1.2.3 Pr
ovisions Required by Law Deemed Inserted. Each and every provision and clause required by law to be inserted in the Contract Documents shall be deemed to be inserted herein and the Contract Documents shall be read and enforced as though such provision or clause is included herein.

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1.2.4 Ex planations, Errors and Om issions. The Design- Builder will not be allowed to take advantage of any error or omission in the Contract Documents. Should it appear that the Work to be done or any matter relative thereto is not sufficien tly detailed or explained in the Contract Documents, Design-Builder shall submit a Request for Information to En gineer, in writing, asking for such furt her written explanations as may be necessary. Desig n-Builder sh all conform to the explanation provided. Design - Builder shall promptly notify En gineer of all errors, omissions, inconsistencies or other defects (incl uding inaccuracies and inconsistencies) w hich it may discover in th e Contract Documents, and obtain specific instructions in writing regarding any such error, omission or defect, before proceeding with the Work affected thereby. Omission fro m the Contract Documents or the misdescription of details of Work which are necessary to carry out the intent of the C ontract Documents, or which are customarily performed, shall not relieve Design-B uilder from performing such omitted Work (no matter how extensive) or m isdescribed details of the Work and they shall be performed as if f ully and correctly set forth and described in the Contr act Documents, without entitlement to a Change Order hereunder.

1.2.5 Interp
retation. The Contract Documents are intended to be coordinated so that figures, words or notes exhibi ted on plans and not mentioned in the Specifications, or vice versa, are to be executed to the true intent and meaning thereof, the same as if mentioned in t he Specifications and set forth in plans. Work shown on pl ans, the dimensions of which are not given, is to be accurately followed according to the scale to which plans are made, but figure d dimensions in all cases are to be followed, although they may differ from the scale measurements. The Engineer will interp ret the meaning of any part of the Contr act Documents about which a ny misunderstanding may arise, and his decision shall be final. In the event of the Design-Builder's failure to give such notice, the Design-Builder shall make good any damage or defect caused thereby. The execution of work spe cially detailed or explained w ithout a previous written claim for an extra charge, shall co nstitute an a cceptance by the Design- Builder of the detailed explanations as being in conformity with the Work covered by the Contract.

1.2.6 Meani
ng of Words . Unless ot herwise stated in the Contr act Documents, words which have well-known, technical or constru ction industry meanings are used in accordance with such recognized meanings. Whenever in the Contract Documents the words “directed,” “required,” “permitted,” “ordered,” “designated,” “prescribed,” or words of like import are use d, it shall be understood that the dir ection, requirement, permission, order, designation, or prescription of the Engineer is intended, and similarly the w ords “approved,” “acceptable,” “sat isfactory,” or words of like i mport, shall mean approved or acceptable to, or sati sfactory to the Engineer unless otherwise expressly stated.

1.3 OWNE
RSHIP AND USE OF DOCUMENTS.

1.3.1 The Construction Documents and other Project -related documents and electronic data prepared by or on behalf of the Design-Builder for the P roject shall be ATTACHMENT 2
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deemed to be "works for hire" and are the property of the City. The D esign-Builder hereby assigns to the City, without reservation, all copy rights to all Project -related documents, models, computer drawings and other electronic expression, photographs, and other expressi on produced by the Design- Builder. Among those documents ar e certain "Instruments of Service," including the design drawings , Des ign-Builder Specifications, and othe r docum ents that are requi red by the Contract Docum ents.

Design-Builder shall obtain a valid written a ssignment of copyrights from its consultants in terms identical to those that obligate the Design- Builder to the City as expressed in this subparagraph, which copyrights the Design-Builder hereby assigns to the City. The City, in tur n, hereby grants to the Design -Builder a nonexclusive license to repr oduce the documents for purposes relating directly to the Design- Builder's performance of this Project, f or the D esign-Builder's arc hival records , and for the Desig n-Builder's reproduction of drawings and photographs in the Design- Builder's marketing materials provided the contents of those materials, as to this Project , are approved by the City.

No other Pr oject-related documents may be reproduced for any ot her purpose without the express written permission of the City. No other copyrights are included in this grant of nonexclusive license to the Design-Builder. This nonexclusive license shall terminate immediately upon the breach of this Agreement by the Design-Builder.

1.3.2 A copy of ever y technical memorandum and report prepared by Design- Builder sh all be submitted to the City to demonstrate progress toward completion of Work. In the event the City rejects or has comments on any such work product, the City shall id entify specific requirements for satisfactory completion by Design- Builder.

Design-Builder shall provide the City with Project -related documents in reproduc ible or electronic format, upon the City ’s written request. Comple te Record Documents shall be turned ove r to the City upon termination of this Agreement or Final Completion, whichever occurs first. If the City subsequently reproduces Project -related documents or creates (or causes to create) a derivative work based upon P roject-related documents created by the Design-Builder, the City shall remove or completely obliterate the original professional seals, logos, and other indications on the documents of t he identity of the Design -Builder and it s consultants. However, wh ere required by law, such identification with appropriate qualifying language or other statutorily prescribed information identifying the original architect or the scopes of the reuse of the doc uments may remain or be applied. The City agrees to hold harmless and indemnify to the fullest extent permitted by l aw, Design-Builder against claims and costs that may arise from the a lteration of these project -related documents by the City when use d for other projects unless the claims or costs arise from the negl igence or willful acts of the Design-Builder.

1.3. 3 If the D esign-Builder believes or is advised by any design professional retained to provide services on the Project that implementation of any instructions received from the City woul d cause a violation of any Applicable Law, the Desi gn- Builder shall promptly notify the City in writing.

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2. CITY

2.1 SUPERVISION AND INSPECTION BY CITY

2.1.1 T he Wor k shall be done in strict compliance with the approved Cont ract Documents under the supervision and to the satisfaction of the Engineer. The Engineer shall decide a ll questions that may ari se as to the quality or acceptability of the Work performed and as to the manner or performance and rate of progress of the W ork, and all questions as to progress payments or compensation.

2.1.2 The E ngineer sh all, at all time s, have the right to inspect the Wo rk and materials in the course of manufacture, assembl y or i nstallation and make such tests from time to tim e as may be deemed advisable. The Design- Builder shall k eep the Engineer, or his desig nated r epresentative i nformed as t o the progress of the Work, giving ample notice, in advance, of appropriate times for inspection and tests, and shall furnish reasonable facilities for such inspection and tests for obtaining such inf ormation as Engineer may require respecting the Work and the character of the materials used.

2.1.3 A ll equipment and material purchased for t his Project will be inspected by the Engineer upon delivery, and if any equipment or material is found not to comply with the Contract Documents, such equipment or material will be rejected.

2.1.4 T he Design- Builder shall furnish all facilities for inspection d uring manufacture, and at the construction site and shops or yards as desire d, and shall not conceal any Work r equiring inspection until t he same has b een approved by the Engineer. If such Work should be concealed before inspection, the Design- Builder will be required to remove such portions of the Work as may be necessary to enable such inspection to be made.

2.1.5 As more particularly described in Article 12 herein, all W ork rejected shall be remedied, or removed and replaced by the Design- Builder in a manner acceptable to the Engineer and no compensation theref ore will be allowed or paid therefore to the Design-Builder. Any work done beyond t he lines a nd grades shown on the Cont ract Documents or established by the Engineer, or any extra work done without val id written authority, will be considered as unauthorized and will not be paid for. Such unauthorized work done may be orde red removed at t he Design-Builder's expense. Upon failure on the part of the Des ign-Builder to comply promptly with any order of the E ngineer made under the provisions of these Contract Documents, the Engi neer shall have authority to cause defective work to be remedied or removed and replaced and unauthorized work to be remov ed at the expense of D esign-Builder, and to deduct the cost from any monies due or to become due the Design-Builder under this Contract.

2.1.6 I nspection or approval of the Work s hall not relieve the Design-Builder of any obligation to faithfully perform and comply with the Contract, and defective work shall be made good and non complying materials rejected and replaced at Des ign-Builder's expense, notwithstanding that such defectiv e work has been previously ove rlooked by ATTACHMENT 2
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the Engineer and approved.

2.1.7 The Engineers’ inspections, as provided for in this Section, shall not be i n-lieu of the appropriate building officials’ inspections.

3. DESIGN-BUILDER

3.1 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS

3.1.1 By exe cuting thi s A greement, Design -Builder r epresents: (1) that it h as visited the Project site, familiarized itself with the local and as-built conditions under which the Work is to be perform ed; ( 2) that it has familiarized itself w ith the nature, location and extent of concurrent construction projects in the vi cinity of the Project; (3) that it has familiarized itself with the nature and extent of the Contract Documents, t he Work, all Applicable Laws that may affect costs, progress , performance or furnishing of the Wo rk; (4) that it has correlate d local conditions and re quirements wi th the City's requirements, schedule and budget; (5) t hat it has advised the City of any loc al conditions or requirem ents which vary from the City's requ irements a nd made recommendations to cure such vari ances; (6) t hat it is fully ex perienced, qualified a nd competent to perform the services set forth in thi s Agreement; (7) that it is properly equipped, organized and fin anced to perform the Work; (8) that it is properly permitted, licensed and registered by the State to perform the services of a Design-Builder; (9) that it has familiarized itself with all con ditions bearing upon transportation, di sposal, handling and storage of materials; (10) that it has familiarized itself with th e availability of labor, w ater, elect ric power, and roads; (11) that it has f amiliarized itself with uncertainties of weather and physical conditions at the Project site; (12) that it has familiarized itself with the character of equipment and facilities n eeded prel iminary to and during performance of the Work; and (13) that it has familiarized itself with the staging and material storage constraints of the Project site a nd will confine its stagi ng and storage operations to approved areas.

3.1.2 Design-Builder has obtained and studied (or assumes responsibility to do so) all such examina tions, investigations, explorations, test s, reports a nd studies which pertain to the physical conditions at or c ontiguous to the Project site or conditi ons which otherwise may aff ect the cost, progress, p erformance or furnishing of the Work, as Design-Builder considers necessary for the performance of the Wo rk hereinafter defined, within the Contract Time and schedule an d in accordance with the other term s and condi tions of the Con tract Docu ments and no add itional exa minations, investigations, explorations, tests, reports, studies or similar infor mation or data are or will be required by Design-Builder for such purposes. Design-Builder may rely upon the accuracy of the technical da ta contained in any such documents provided by the City , ATTACHMENT 2
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but not upon non- technical data, interpretations, opinions or conditional statements contained therein or for the completeness thereof for Design-Builder's purposes.

3.2 LABOR AND MATERIALS

3.2.1 Labor
Code. The Design-Builder shall strictly adhere to the provi sions of the California Labor Code regarding minimum wages, the 8 hour day, the 40- hour week, overtime, Saturday, Sunday and holiday w ork, apprentice employment and training, workers’ c ompensation, cer tification, n on-discrimination and pr evailing wages, al l as more specifically set forth in Article 15 herein.

3.2.2 Pr
eparation for Shipment. The Design- Builder or Design- Builder's Suppliers shall prepare all articles and materials for shipment in such a manner as to protect them from damage in t ransit, and shall be respon sible for and repair all damaged parts or replace all losses incurred in transit to the designated delivery point. When necessary , heavy parts shall be mounted on s kids or crated, and all articles or materials that might otherwise be lost shall be boxed or wired in bundles. All articles shall be plainly marked for identification and destination. The Design- Builder shall prepare proper commercial bills of lading, three copies of which, together with a complete shipping list, shall be sent to the jobsite: Willow Substation, 228 S. Naomi St., Burbank, CA 91505 , unless otherwise directed by the City’s Engineer.

3.2.3 Ide
ntification. All c orrespondence, drawings, shipping pa pers, d ocuments and invoic es pertaining to equipment described in the Contract Documents s hall be plainly marked with the number of the Purchase Order Number. All bundles, boxes, crates, containers, and pieces of equipm ent shipped under the Contract Docu ments shall be plainly labeled with said number.

3.2.4 Deliv
ery. Deliv ery shall mean the delivery to the jobsite of complete equipment or material componen ts req uired by, and complying with, the Contr act Documents.

3.2. 4.1 The Design-Builder shall place orders for al l equipment in time to prevent any delay in the Proj ect Schedule o r Substantial Completion of Project. If any materials or equipment are not ordered i n time , additional charges made by equipment manufacturer's to co mplete their equipment in time to meet t he Project Schedule, together with any special handling charges, shall be borne by the Design-Builder.

3.2.4.2 Materials shall be delivered in sample quantiti es from time to time as may be necessary for the uninterrupted pr ogress of the Work. They shall be store d so as to cause the least obstruction to the premises and distributed so as to prevent overloading any portion of the structure. These areas sh all be only in approved locations and shall not interfere with the work of a ny Separate Design- Builders with th e use of property adjacent to the Project site.

3.2.4.3 The Design-Builder shall provide facilitie s and Personn el for unloading, ATTACHMENT 2
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receiving, and warehousing all equipment and materials at the jobsite. The City may, at the written request of the Design- Builder, furnish the personnel and fac ilities to unload, receive and warehouse the equipment and mater ials required under this Contract. For this service, the Design -Builder agrees to promptly pay the expense of the use of Cit y personnel and equipment. Before the C ity will arrange to render the service, however, the Design-Builder shall first se nd a copy of the bill of lading to the Engineer. In performing this service, the City shall act as the agent of t he Design- Builder. It is distinctly understood that the Cit y shall in no event be respons ible for, nor does it assume any l iability for, the equipment or materials received under this paragraph, although reasonable care will be taken to check and store them.

3.2.4.4 All Work, equip ment and materials shall be protected at all tim es. The Design-Builder shall make good all damage cause d either directly or indire ctly by its employees or Subcontractors. The Design-B uilder shall also protect its own Work from damage. He shall close all pipe openings with caps or plugs during installation. It shall protect all o f its equipment and materials against dirt, w ater, chemical and mec hanical injury. Upon completion, all Wor k shall be t horoughly cleaned and delivered in a new condition.

3.2.5 Pr
operty Cityship

3.2.5.1 Except as otherwise provided for in Section 30 hereof, title to all material and equipment shall vest in the City upon shipment thereof, but all risk or loss in respect thereto shall remain with the Design-Builder until the City has accepted the material and equipment following the c ompletion of erection and tes ting th ereof. This ri sk of loss includes insuring t he shipment and acting as the principal plaintiff in case of da mage incurred during shipment or erection of the equipment.

3.2.5.2 Although t itle to the equipment and material passes to the City upon shipment, a s above sp ecified, the Design-Builder shall have the charge and care thereof until completion of erection. He shall bear the expense of any theft or damage whatever to the equipment and materials during that period except that the City will bear the expense of any such damage that is caused by its negligence.

3.2.5.3 In ca se of a personal property tax being levied upon the eq uipment and materials to be furnished and installed under the Contract after delivery on the jobsite and the Design -Builder is required to pay such tax , the City wi ll reimburse the Design- Builder for such tax upon presentation of a certified copy of such t ax statement. In the event of such reimbursement by the City, the Design- Builder shall cooperate with the City and furnish such authority to the City as it may need in order to prosecute an action for refund of such taxes, and in the event of such a refun d, the refunded taxes shall become the property of the City.

3.3 SUBSTITUTIONS

3.3.1 The burden of proof as to the type, function, and quality of any substitute ATTACHMENT 2
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product, m aterial or equipment shall be upon the Design -Builder. The final determination of the accept ability of substitute items rests solely in the dis cretion of the City.

3.3.2 Without any increase in cost to the Ci ty, the Des ign-Builder shal l b e responsible for and p ay all cost s in connection with proposed substituti ons and of inspections and testing of equipment or ma terials submitted for review prior to t he Design-Builder's purchase thereof for incorporation in th e Work, whether or not the Cit y accepts the proposed substitution or proposed equi pment or material. The Design- Builder shall reimburse the City for the charges of the City for evaluating each proposed substitution.

3.4 WARRANTY

3.4.1 Without limiting any othe r right s o f the City, Design- Builder warrants to th e City that: a ll equipment and materials furnished under the Contract will be of good quality and new; that the Work will be free from defects, including design def ects, errors and omissions; the Project w ill be fit for use for its intended function; and that the Work will conform to the requirements of the Contract Documents. Work not conforming to these re quirements, including substitutions not made in accordance with the Contract Documents, shall be con sidered defective. If req uired by t he Engineer, the Design- Builder shall furnish satisfactory evidence as to the kind and quality of materials and equipment furnished. Without limiting any other rights or remedies of the City, if any defect in the Work arises within five (5) year s after the date of Subst antial Completion, upon receipt of writ ten notice of such defect, as provided in Article 12 h erein, Design- Builder shall promptly repair or replace such defective Work without cost to the City.

3.4.2 Design-Builder shall obtain in the n ame of the City (or such o ther name as City may designate in writing to Design- Builder) and transfer or assign to the City o r the City's designee at the time of Final Completion of the Work, any and all warranties or guarantees w hich Des ign-Builder is requ ired to obtai n pursuant t o the Contra ct Documents which Design-Builder obtained from any other Person or entity other than Design-Builder and further agrees to perform the Work in such a ma nner so as to preserve any and all such warranties.

3.4.3 Design-Builder agrees to obtain from Sub contractors, material suppliers and manufacturers, warranties for labor and materials which extend beyond the five (5) year warranty and correction period required by the Contract for the following syste ms: any warranty upgrades or e xtensions which are offered by manufacturers of any equipment or system utilized in the Project, as part of the manufactu rer's standard warranties shall be offered to the City by the Design-Builder.

ATTACHMENT 2
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3.5 TAXES

3.5.1 Design-Builder shal l pay al l s ales, consumer, use , gross receipts and o ther similar t axes and/or cust oms charges required to be paid by Design- Builder in accordance with the laws and regulations of the place of the Project that are applicab le during the performance of the Wor k. Notwithstanding the foregoing, the City in its sole discretion, may elect to pay any C alifornia sales or use taxes directly to the State of California, and when so paid the amount deducted fr om the Contract Price and Design- Builder shall have no furth er respo nsibility therefor. The City shall provide D esign- Builder with appropriate evidence of payment of such taxes upon reasonable request.

3.6 APPLICABLE LAW

3.6.1 The Design-Builder shall keep fully informed of all Applica ble 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 th e 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 discove red in the Contract Documents for the Work in relation to any Ap plicable Law, including a change in Applicable Law, the Desi gn- Builder shall forthwith report the same to the Engineer in wri ting. The Design-Builder shall at all t imes, ob serve and comply wi th and sha ll cause all of its agents and employees to observe an d 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 o r liability arising from o r based upon the violation of any suc h law, ordinance, regulation, order or decree whether by Design- Builder or its ag ents o r employees. If the Design- Builder performs the Work knowing it to be contrary to Applicable Law, the Design -Builder shall assume f ull responsibility and be ar all costs attributable to correction.

3.6.2 The Design-Builder represents and warrants that i t is, and shall cause each of its Subcontractors to be, in compliance with Applicable Law, including, but not limited to, any United State s o r state law with respect to a nti-terrorism, anti -corruption, sanctions against foreign nations and any other laws applicable to the performance of the Work , including any financial trans actions or procurement of goods i n connection therewith. The Desig n-Builder agrees to provi de any certifications, evidenc e or other supporting documents reasonably requested by the City in connection with the foregoing.

3.7 PERMITS, LICENSES AND INSPECTIONS

3.7. 1 The Design-Builder will appl y for the a ny appli cable general const ruction permit or other r elated permits. The Design -Builder shall obtain and pay for all plumbing and electrical permits and l icenses, all permits and inspection in connection with the Work or operations in or over public streets and highways, and all other permits and inspections required in connection with the Work to be done under the Contract Documents, unless otherwise speci fied herein. Permits issued by the Ci ty of Burbank ATTACHMENT 2
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are “no fee”. The Design -Builder shall comply with and give notices required by all Applicable Laws.

3.8 S CHEDULE

3.8.1 Design-Builder shall prepare and periodically update a project sch edule in a detailed prec edence-style critical path method format sat isfactory to the City and the Design-Builder, whi ch shall al so: (1) provide a graphic rep resentation of all act ivities and events that will occur during performance of the Work; (2) id entify each phase of construction and occupancy; and (3) set forth dates that are critical in ensuring the timely and orderly completion of the Work in accordanc e with the requirement s of the Contract Documents (hereinafter referred to as Milestone Dates). Design-Builder shall create and maintain the schedule using MS Projects unless otherwise agreed to by City.

Upon review and approval by t he City of the CPM Pro ject Schedule as a whol e and of the Milestone Dates, the CPM Project Schedule shall be deemed part of the C ontract Documents. The CPM Project Schedule shall be promptly revised by the D esign- Builder in accordance w ith the rec ommendations of the City, if n eeded, and resubmitted. The Design-Builder shall mo nitor the progress of the Work for conformance with the requirements of the Project Schedule and shall promptl y advise the City of any delays or potential delays.

3.8.2 With each A pplication for Payment sub mitted by Design- Builder, other than the Final Applicat ion for Payment, the Design- Builder shall s ubmit to the City, as directed by the Project Manager, a current CP M Project Schedule revis ed to indicate the portion of the Work executed dur ing the time per iod covered by the Applic ation for Payment, all progress slippages occurring during the previously covered time periods and the corrective actions taken or slippage carry-over into the time period covered by the Application for Payment, all anticipated delays or difficulties, a Re covery Schedule, as applicable, and all other information required to acc urately present the actual status of the progress of the Work as of the date of Application for Payment and as may be further required by the City or Design-Builder. If the Design-Builder does not submit the currently revised CPM Project Schedule with an App lication for Payment, th e City may withhold payment, in whole or in part, in addition to other causes for such withho lding provided for in the Contract Doc uments. In the event any updates to the CPM Project Schedule indicate any delays, the Design- Builder shall propose an affirm ative plan to correct the delay, includi ng overtime and/or addit ional labor, if necessary. I n no event shall any u pdate constitute an adjustment in the Cont ract Time, any Milestone Date or the Contract Sum unless any such adjust ment is agre ed to by the Ci ty and authorized pursuant to a Change Order.

3.8. 3 In the event any updat e to the Project S chedule shows the Work or any part thereof is lagging the CPM Project Schedule by ten (10) days or more, Design- Builder shall submit a Recover y S chedule, demonstrating D esign-Builder’s proposed pl an to regain lost schedule progress and to achieve Substanti al Com pletion of t he Work in accordance with the requirements of the Contract Documents.

ATTACHMENT 2
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3.9 RECORD DOCUMENTS AND AS-BUILTS

3.9.1 Design-Builder shall maintain in a safe place a t the Project Site and make available to the City for inspection and copying, including digital copying, one rec ord copy of all drawin gs, specifications, re quests for information, writte n amendments, Change Orders, scheduling dat a, field ord ers and work chan ge directives, in good order. In addi tion, Design-Builder shall ma intain at the site, appr oved shop dr awings, product data, samples and mock -ups, permits , inspection reports, test res ults, daily logs, schedules, subcontracts and purchase orders (“Record Documents”). The Record Documents shall be prepared and contin uously updated during the pros ecution of the Work. As part of Record Documents, Design- Builder shall maintain a set of As -Built Drawings on-site in good condition and shall use colored pencils to markup said set with "record information" in a legible manner to show:

A. deviations from the drawings made during construction;

B. d etails in the Work not previously shown;

C. changes to existing conditions or existing conditions found to di ffer from those shown on any existing drawings;

D. the actual installed position of equipment, piping, c onduits, light switches, electrical fixtures , c ircuiting, ducts, dampe rs, ac cess panels, control valves, drains, openings, stub-outs and like items; and

E. Such other information as City may reasonably request.

Design-Builder's submit tal o f evidence of updated Record Docume nts shal l b e a condition precedent to City's duty to process payment applications.

3.9.2 Design-Builder, as part of the Contract Price, within thirty (30) ca lendar days after Substantial Completion or earlier termination of the Agreement and as a c ondition precedent to certifying of th e final payment under the Contract, shall transfer the "As - Built" changes to the Work maintained by D esign-Builder from the record drawings kept at the Project Site to: a true and complete final set of "As-Built" Mylar drawings capable of being reproduced and in the latest version of AUTOCAD format on flash drive(s); and final approved shop drawings; and a complete certified "As -Built" survey for the Proj ect Site indicating the actual location of the improvements as constructed on the site. The Design-Builder's duty to provide such As-Built drawings, shop drawings and survey obligation shall survive the completion of the Work or termination of the Agreement.

3.10 INTELLECTUAL PROPERTY AND PATENT RIGHTS

3.10.1 The Design- Builder sha ll secure i n writing from all patente es, copyright holders, and assig nees of all Project -related documents, all copyrights, assignments , and licenses related to s uch expression (e.g., designs, drawings, Contract Documents, ATTACHMENT 2
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specifications, documents in computer form, etc.) as necessary to allow the City the full, unlimited, and unencumbered use of that expression for the execution, operati on, maintenance, modernizat ion or expansion of the Project. The De sign-Builder shall immediately convey all such copyrig hts, assignments, and licenses to the City without reservation except that which is expressly allowed in this Article. In the case of products, ma terials, system s, etc., protected by patent, the Design- Builder and its consultants shall not specify or cause to be specified any infringing use of a patent.

3.10.2 Should the D esign-Builder become aware of or receive notice of potential infringement o f any int ellectual propert y right related to the Project, regardless of the source of that aw areness or notice, the Design-Builder shall (a) immediately ce ase the copying and any o ther activity which is the pot ential source of infringement; and within seven (7) calendar days (b) in vestigate the potential infringement; (c) submit to the City copies of all documents relating to that awareness, the notice, or the object thereof; and (d) issue to the City a complete written response and analysis of the potential infringement and the c ourse of action recommended by the Design- Builder. The Design-Builder shall submit to the City a supplement of the initial report within seven (7) calendar days o f the Design- Builder's receipt of, or awareness of, additional rel ated information. Nothing in this Agreement shall be deemed to relieve the Design-Builder of its obligations under this Article, nor shall the City's receipt of the information indic ated in this Article give rise to any duty or obligation on the part of the City.

3.10.3 The Design-Builder and its Faithful Performance Bond Surety shall indemnify, defend, a nd hold harmless, the Ci ty, its Cit y Council a nd its officers, agents and employees fro m all liability, costs, and attorneys' fees incurred which are related to infringement of intellectu al property rights, whether or not the i nfringement is potential , accused, or proven. Should the City b ecome aware of, or receive not ice of, potential, accused, or actual infringement of intellectual property rights, the City shall, in its sole option, have the right to engage independent legal counsel to advise the C ity as to the infringement. The costs and fees for such counsel shall be borne by the Design-Builder and shall be immediately recoverable by the City against amount s due or soo n to be due to the Design-Builder or amounts already paid to the Design-Builder.

3.11 SUBMITTALS AND SHOP DRAWINGS

3.11.1 Design-Builder will review for com pliance with the Contract Documents, approve and submit to Engineer, Shop Drawings, product data a nd similar submittals required by the Contract Documen ts. The City will review and approve submittals in accordance with the Contract Documents. The City’s rev iew and approval will b e only to determine if the items covered by the submittals will, after i nstallation or incorporation in the construction, conform to the inform ation given in the C ontract Documents and be compatible with the design concept of the com pleted project as a fun ctioning whole as indicated by the Contract Documents. The City’s review a nd approval will not extend to means, methods, techniques, sequences or procedures of construction (except where a particular me ans, met hod, technique, sequen ce or procedure of cons truction is specifically and expressly called for by the Contract Documents ) or to s afety ATTACHMENT 2
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precautions or programs incident thereto. The review and approval of a s eparate item, as such, will not indicate approval of the assembly in which the item functions. Des ign- Builder shall make corrections required by the City, and shall return the required number of corrected copies of the required submittal for review and ap proval. Design - Builder shall direct spe cific at tention in writing to revisions other than t he corr ections called for by the City on previous submittals.

The City’s review and approval of req uired submittals shall not relieve Desig n-Builder from responsibility for any variation from the requirements of the Contract Docum ents unless Design-Builder has in writing called the City’s attention to each such variation at the time of submission and the City has given written approval of each such variation by specific written notation thereof incorporated in or accompanying the submittal.

3.11.2 Where a submit tal is required by the Contrac t Documents of related construction provided prior to t he City’s revie w and approval of the pertinent submittal will be at the sole expense and responsibility of Design-Builder.

3.11.3 The Design-Builder shall prepare Shop Drawings necessary for the Work and shall check the same for accurate measurements taken from the Work, and w hen assured that such drawi ngs have been properly prepared, shal l sub mit same to the Engineer for approval.

3.11.4 When Shop Drawings cannot be made from actual dimensions taken from the Work but are prepared from the preliminary plans, it is und erstood that th e Design- Builder is responsible for the accu racy of the informat ion on which such drawings ar e prepared, for the City does not vouch for their accuracy, but will make available to the Design-Builder information upon which such plans were made.

3.11.5 It is unde rstood that the Engineer's approval of the S hop Drawings is for the design only and not for d imensions or struct ural accuracy, but wil l make available to Design-Builder information upon which such plans were made.

3.11.6 Any material orde red by the Design- Builder prior to the approval of Shop Drawings sha ll be at its own ris k. T he Engineer shall have t he right to keep Sh op Drawings submitted for approval two (2) weeks before returning to the D esign-Builder with corrections or approval, and no claim for delay on this account shall be recognized.

Four (4) complete prints of each approved drawing prepared by the Design-Builder shall be furnished to the Engineer.

3.12 USE OF SITE AND OTHER AREAS

3.12.1 Design-Builder shall confine construction equipm ent, the storage of mate rials and equipment and the operations o f co nstruction workers t o tho se lands and areas allowed by the City and other land and areas allowed by laws and regulations, rights-of- way permits and easements, and shall not unreasonably encumber the premises with construction equipment or other materials o r equipment. Design- Builder shall assume ATTACHMENT 2
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full responsibility for any damage to any such land or area, or to the City or occupant thereof or of any adjacent land or areas, resulting fro m the performance of the Work .

Design-Builder shall, to the fulles t extent permitted by la ws and regulations, ind emnify and hold harmless the City, its City Cou ncil and their officer s, agents and employees from a nd against all claims, costs, losses and damag es (inclu ding, but not l imited to, fees of engineers, architects, attorneys and other professionals and court and arbitration or other disp ute resolution c osts) arising out of or r esulting from any claim or act ion, legal or equitable, to the extent caus ed by or based upon Design-Builder’s performance of the construction.

3.12.2 During the performance of the construction, Design-Builder s hall keep t he premises free from accumulations of waste materials, rubbish and other debris resulting from the construction. At the comp letion of the c onstruction Design- Builder shall remove all waste materials, rubbish and debris from and about the premises as well as all tools, a ppliances, construction eq uipment, temporary constructi on and machinery and surplus materials. Desig n-Builder shall leave the Site clean and ready for occupancy by the City at Substantial Compl etion. Design- Builder s hall restor e to original condition all property not designated for alteration by the Contract Documents.

3.12.3 Design-Builder shall not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor shall Design-Builder subject any part of the Work or adjacent property to stresses or pressures that will endanger it.

3.13 INDEMNITY

3.13.1 The City and its boards , o fficers, employees and/or agents shall not be answerable or accountable in any manner for any loss or damage that may occur to the Work or any part thereof, or for any of the materials or other things used or employed in performing the Work or for injur y or damage to any person or persons, either workmen, employees of the Design-Builder or it s Subcontractors or the public, or for d amage to adjoining or other property, from any cause whatsoever arising out of, or in connection with, the performance of the work. The Design- Builder shall be responsible for any damage or i njury to any person or proper ty resulting from defect s or obstructions o r from any cause whatsoever arising out of, or in connection with, the performance of the Work, except for negligence or willful misconduct of the City, or of its agents, servants, or independent contractors.

3.13.2 The Design-Builder un dertakes and agree s to in demnify and hold harml ess the City and its b oards, councils, officers, agents and employees, and, at the option of the City, def end the City and its boards, councils, officers, agents and employees, assigns and successors in inter est fr om and agai nst any and all suits and c auses of action, claims, charges , damages, demands, judgments, civil fines and penalties, or losses of any kind or nature whatsoever, for death, bodily injury or personal injury to any person, including Design- Builder's employees and agents, or damage or d estruction to any property of either Party hereto, or t hird persons in any manner arising by reason of the negligent acts, errors, omissions or willful misconduct incident to the performance of ATTACHMENT 2
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this contract on t he part of the Design -Builder, or the Design- Builder's officers, agen ts, employees, or Subcontractors of any tier, except for the sole active negligence or willful misconduct of the City.

3.13.2.1 The Design-Builder will defend any action or actions filed in conne ction with any of said claims, damages, pena lties, obligations or liab ilities and will pay all cost s and expenses, including attorneys' fees incurred in connection therewith.

3.13.2.2 The Design- Builder w ill promptly pay any judgment rendered against the Design-Builder or the City , its of ficers, employees and agents covering such c laims, damages, penalties, obl igations and liabilities arising out of or in connection with such work, operations, or activities of the Desi gn-Builder hereunder; and the Design-Builder agrees t o save and h old the City and its offic ers, employees and agents harmless therefrom.

3.13.2.3 In the event the City is made a part of any action or proceeding filed or prosecuted against the Design-B uilder for such d amages or other clai ms arising out of or in connection with t he Work, operation or activities of the Design -Builder hereunder, the Design-Builder agrees to pay to the City any and all c osts and expenses incurred by the City in such action or proceeding together with the reasonable attorneys' fees.

3.13.3 This indemnity s hall sur vive termination or final payment to Design-B uilder.

This indemnity is in addition to any other rights or remedies t he City may have under law or the Contract Documents. In the event of any claim or demand against the City for wh ich it is entitle d to ind emnity hereunder, t he City may, in its sole discret ion, reserve, retain or apply any monies due to Design- Builder or remaining in the Contract balance for the purpose or resolving such claims.

4. ADMINISTRATION OF THE CONTRACT

4.1 ROLE OF CITY’S ENGINEER

4.1.1 The C ity’s Engineer shal l b e responsible for ov ersight of the design, permitting and construction on the City’s behalf. D esign-Builder shall deliver all Design Documents and Construction D ocuments and other submi ttals to the Engineer. All meetings regarding design and construction shall be coordinated through the Engineer.

Design-Builder shall not be relieved of its obligatio ns under the Contract Documents by City approvals.

4.2 CLAIMS AND DISPUTE RESOLUTION

4.2.1 Contin
uing the Work . Desig n-Builder shall c arry on the Work and adhere to the Project Schedul e during all disputes or disagreements with City. No Work shall be delayed or postponed pending resol ution of any disputes or di sagreements or pending change order requests.

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4.2.2 Di spute Resolution. If a dispute arises out of or relates to this Contract, or the breach thereof, the Parties agree that the following negotiation and me diation process shall be used before the filing of a legal action.

If the
Design -Builder b elieves that any instruction, request, dr awing, Specifications, action, condition, omission, default or other situation obligates the City to pay additional compensation to the Design -Builder or to grant an extension of time for the completion of the Work, he shall notify the Engineer, in writing and certified under penalty of perjury of such c laim with in fifteen (1 5) calendar days from the date he has actual or constructive notice of the factu al basis supporting the claim or at the weekly progress meeting requi red by the Contrac t Docu ments, whic hever is so oner. The Design- Builder's failure to notify the Engineer within such period shall be deemed a waiver and relinquishment of the claim against the City.

If the Engineer determines t hat the Work in question is Contract Work and not ext ra work, or that the determination or order complained of is proper, Engineer will issue a Work Directive ordering the Design- Builder to proceed and the Design- Builder must promptly comply. However, in order to reserve its rig ht to claim compensation for such work or damages resulting from such compliance, the Desi gn-Builder must within five (5) days after receiving notice of the Engineer 's determination and direct ion, notify the Engineer in writing that the work is being performed as extra work and that t he determination and direction is being complied with under protest.

Claim resolution is subject to Section 9204 of the Public Contract Code. For any conflict between Section 9204 and any section of th e Contract Documents, Section 9204 will govern. If any dispute arises out of or relates to this Contract, or breac h thereof, the parties agree to process any claim pursuant to Section 9204 before the filing of any legal action.

Section 9204 of the Public Contract Code reads as follows:

9204. (a) The Le gislature finds and declares that it i s in the best interests of the s tate and its citizens t o ensure that all construction business per formed on a public works project in the state that is complete and not in dispute is paid i n ful l and in a timely manner.

(b) not withstanding any other law, including, but not lim ited to, Article 7.1 (commencing with Section 10240) of Chapter 1 of Part 2, C hapter 10 (commencing wi th 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 ATTACHMENT 2
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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 en tity 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 contr actor 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) P ayment 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 Div ision 3 of the Bu siness and Professions Code who has ent ered into a direct cont ract with a public entity for a public works project.

(3)(A) “Public Entity” means, wit hout limitation, except as provided in subparagraph (B), a state agency, department, office, division, bureau, board, or commission, the Calif ornia State University, the U niversity of Calif ornia, a city, in cluding a c harter city, cou nty, including a charter county, city and county, including a charter city and county, district, s pecial district, public authority, political subdivision, public co rporation, or nonprofit trans it corporation wholly ow ned by a pub lic age ncy and formed to c arry out the purposes of the public agency.

(B) “Public entity” shall not include the following:

(i) The Depar tment of Water Resources as to any project under the jurisdiction of that department.
(ii) The Department of Transportation as to any project under the j urisdiction 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 wit h respect to any project under its juris diction pursuant to Chapter 11 (commencing with Section 7000) of Title 7 of Part 3 of the Penal Code.
(v) The Military Department a s to any project under t he 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” me ans the e rection, construction, alteration, repair, or improvement of any publ ic struct ure, building, road, or other public improvement of any kind.

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(5) “Subcontractor” means any type of cont ractor 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 contract or or is a lower tier subcontractor.

( d) (1) (A) Upon receipt of a claim pursuant to this section, the public entity to which th e c laim applies shall c onduct a reasonable review of th e 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. Upo n receipt of a c laim, a public entity and a cont ractor 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 govern ing body to provide the claimant a written statement identifying the disputed portion and the undi sputed portion of the claim, and the governing body does not meet w ithin the 45 days or within the mutually agreed to extension of t ime following receipt of a claim sent by register ed main o r 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 extensi on, expi red to provide the claimant a written stat ement identifying the disputed portion and the undisputed portion.

(D) Any pa yment due on an undisputed po rtion of the claim shall be processed and made within 60 days after the public entity issues its written statement. If the public entity fails to issue a written statement, paragraph (3) shall apply.

(2)(A) If the claimant disputes the public entity’s written response, or if th e public entity fails to respond to a claim issued pursuant to thi s section within the time prescribed, the claimant may demand i n writing an informal conference to meet and confer for settlement of the issues in dispute. Upon r eceipt of a demand in writing sent by re gistered mail or certifi ed ma il, return receipt requested, the public en tity shall schedule a meet and confer conf erence within 30 days for settlement of the dispute.

(B) Within 10 business days foll owing the concl usion of the met and confer conference, if the claim or any port ion of the claim remain s in dispute, the public entity shall provide the claimant a writte n statement identifying the port ion of the claim that remains in dispute and the portion that is undis puted. Any payment due on an undisputed portion of the claim shall be processed and made within 60 days after the public entity is sues its written statem ent. Any disputed portion of the claim, as identified by the contractor in writing, sh all be submitted to nonbinding mediation, with the publ ic entity and the claima nt sh aring the ATTACHMENT 2
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associated costs equally. The public entity and cla imant shall mutually agre e to a mediator within 10 busi ness days after the disputed portion of the cl aim has been identified in writing. If the parties cannot agree upon a mediator, each party shall select a mediator and those m ediators shall select a qualif ied 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 m ediator. If medi ation is unsuccessful, the par ts of the claim remaining in dispute shall be subject to applicable procedures outside this section.

(C) For purposes of this section, mediation includes any non binding process, including, but not limited to, neutral evaluation or a dispute review board, in which an indepen dent thir d party or board assist s the parties in dispute resolution through negotiation or by issuance of an evaluation. Any mediation utiliz ed shall conform to the timeframes of this section.

(D) Unless oth erwise a greed to by the public entity and the cont ractor in writing, the mediation conducted pursuant to this section shall excu se any further obligation under Section 20104.4 to mediate after litigation has been commenced.

(E) This section does no t preclude a public entity from requi ring 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 re spond to a claim f rom a c ontractor within the t ime periods described in this subdivision or to otherwise meet the time requirements of this secti on shall result in the c laim being deemed rejected in its entirety. A claim that is denied by reason of the public e ntity’s failure to hav e responded to a cl aim, or its failure to otherwise meet the time requirements of this section, shall not constitu te an adverse finding with regard to the merits of the claim or the responsibility or qualifications of the claimant.

(4) A mounts 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 l ower tier su bcontractor lac ks legal standing to assert a claim agai nst a public entity because p rivity of contract does not exist, the cont ractor may present to the public entity a cl aim on behalf of a subcontractor or lower tier subcontractor. A subcontr actor may re quest in writing, either on or his or her own behalf or on behalf of a lower ti er subcontractor, that the co ntractor present a claim for work whic h was performed by the su bcontractor or by a lower tier subcontractor on behalf of the subcontractor. The sub contractor requesting that the claim be presented to the public entity shall furnish reasonable documentation to support the claim. Within 45 day s o f receipt of this wr itten request, the contractor shall notify the ATTACHMENT 2
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subcontractor in writing as to whether the contractor pre sent the claim to be the public entity and, if the original contrac tor did not presen t the claim, prov ide the subcontractor with a statement of the reasons for not having done so.

(e) The text of this section or a summary of it shall be set forth in th e 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 r eceipt of a claim, the par ties may mutually agree t o waive, in w riting, mediation and pr oceed directly to the commencement of a civil ac tion or binding arbitr ation, as applicable; and (2) a public entity may prescribe reasonable change order, claim, and dispute resolution procedure s and requirements in add ition to the p rovisions as this section, s o long as the cont ractual provisions do not co nflict with or o therwise 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 u ntil January 1, 2020, and as of that date is re pealed, unless a later enacted statute, that is enacted before January 1, 2020, deletes or extends that date.

5. SUBCONTRACTORS, SUPPLIERS AND CONSULTANTS

5.1 SUBCONTRACTING ACT

5.1.1 T he Subletting and Subcontracting Fair Practices Act, Secti ons 4100 et seq. of the California Public Contract Code (“Subcontracting Act”) requires Persons bidding on public works contracts to identify certain major Subcontracto rs as par t of their bids .

The City recognizes that because a design-build contract may be awarded prior to the completion of th e design, i t is often impracti cable for the des ign-build en tity to list all Subcontractors during the design and procurement phase of the Work. As a re sult, the Subcontractor listing requir ements contained in the Subcont racting Act can cr eate a conflict wi th the implementation of t he design-build proc ess b y 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 Contracto r after a certain amount of design wor k is completed. Therefor e, the City has postponed Design-Builder’s obligation to identify certai n S ubcontractors, subject t o Design- Builder’s complia nce with the Subcontractor selection policy set forth in thi s Section.

All Subcontractors shall be afforded the protections contained in the Subcontracting Act.

5.1.2 The S
ubcontractor List and Declaration f orm shall be signed by Desi gn- ATTACHMENT 2
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Builder, agreeing that any Subcontr actor not identified on th e for m who will perform Work or labor or render Service in the perf ormance of the Contr act i n the amount exceeding ½ of 1% of the difference between the Total of the Contract Price and the amount allocated to Design Services, shall be submitted to the City for approval prior to the execution of any subcontract. Once a Subcontractor approved by the City has been selected for any such Work, Design- Builder shall not hav e the right t o make any substitution of such Subcontractor except i n accordance with the provisio ns 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 hear ing dealing with the substitution of a Subcontractor.

5.2 OBJECTION

5.2.1 D esign-Builder shall not e mploy any subcontractor , eng ineer, suppl ier or other individual or entity against whom the C ity may have reasonable object ion.

Design-Builder shall not be required to employ any subcontractor, engineer, supplier or other individual or entity to furnish or perform any of the Wor k against whom De sign- Builder has reasonable objection.

5.3 RESPONSIBILITY

5.3.1 Design-Builder shall be fully responsible to the City for all acts and omissions of the Subcont ractors, engineers, suppliers and other individuals or entities p erforming or furnishing any of the Work under a dir ect or indirect con tract with Design -Builder.

Nothing in the Contract Documents shall create for the benefit of any such Subcontractor, engine er, supplier or other individual or entity any contractual relationship between the C ity and any such Subcontractor, engineer, suppl ier or other individual or en tity, nor shall it crea te any obligation on the part of the City to pay or to see to Subcont ractor, engineer, supplier or other indi vidual or entity except as may otherwise be required by laws and regulations.

5.4 COORDINATION

5.4.1 Design-Builder shal l be solely responsible for schedul ing and coordinating Subcontractors, engin eers, supplie rs and other i ndividuals and entities per forming 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 p erforming or furnishing any of the Work to communic ate with the City through the Design-Builder.

5.5 SUBCONTRACT AGREEMENTS

5.5.1 All services performed or provided to and material and equipment supplied to Design-Builder by a Subcontractor or Supplier will be pur suant to an appropriate design sub-agreement or construction su b-agreement between Design- Builder and the Subcontractor, engineer or supplier which specifically binds the Subcontractor, engineer ATTACHMENT 2
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or supplier to the terms and conditions of the Contract Docum ents, including prevaili ng wage and DIR reporting requirements, for the benefit of the City. The City shall have the right but not the oblig ation to review and accept the form and s ubstance of Design- Builder’s a greements with Subcontractors. Whenever a ny such agree ment is with a Subcontractor, engineer or supplier who is listed as an additional in sured on the property insurance provided for herein, the agreement between the Des ign-Builder and the Subcontractor, engineer or supplier will contain provisions whereby th e Subcontractor, engineer or supplier wai ves all righ ts against the City, Design- Builder, the City’s c onsultants and al l other additional insureds for all losses and damages caused by any of the perils or causes of loss covered by such policies a nd any other property insurance applicable to the W ork. If the insurers on any such poli cies require separate waiver forms to be signed by any Subcontractor, engineer or supplier, Design- Builder will obtain the same.

5.6 ASSIGNMENT

5.6.1 Each subcontract agreemen t for a po rtion of the W ork is assigned by the Design-Builder to the City provided that assign ment is effective only after termination of the Contract by the C ity and only for those subcon tract agreements which the City accepts by notifying the Subcontr actor in writ ing. Said ass ignments are subject to the prior right s of the sureties obligated on the bonds relating to t his Agreemen t. Each subcontract shall spe cifically provide that the Ci ty shall only be responsible to the Subcontractor for those obligati ons of the Design-Builder that accrue subsequent to the City's exercise of any rights under this contingent assignment.

6. PAYMENTS TO SUBCONTRACTORS AND STOP NOTICE CLAIMS

6.1 P ROMPT PAYMENT

6.1.1 Design-Builder shall make prompt payment to its Subcontractors and S uppliers within seven (7) days after receipt of payment from the City.

6.2 STOP NOTICE CLAIMS

6.2.1 If at any time there shall be evidence of the existence, whether or not same has been asserted, of any stop notice or claim arising out of or in connection with the performance or default in performance of this Cont ract or a ny subcontract or supply contract entered into by Design -Builder to p erform this Contract, and i f the City might become liable for the discharge or satisfaction of such stop notice or claim, then the City shall have the rig ht to retain out of any payment t hen due or thereafter to beco me due, in addition to amoun ts for retai nage and as otherwise set f orth in Article 9 herein, an amount sufficient to discharge such stop notice or satisfy such clai m and to reim burse the City and the representatives of the City for all costs and expenses in con nection therewith, including attorneys’ fees. Further, the Ci ty, in its sole d iscretion, shall have the right to discharge or satisfy such stop notice or clai m a nd pay all costs and expenses in connection therewi th if the Design-Builder does not have such stop notice ATTACHMENT 2
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or claim discharged, bonded, or s atisfied 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 ag reed upon between the City and Design- Builder. If th e amounts retained by the City are insuffi cient for the aforesaid purposes, or if such stop notice or claim remains undischarged or unsatis fied after all payments have been made to Design- Builder, then the Design -Builder shall r efund 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.

7. CHANGES IN THE WORK

7.1 C HANGES

7.1.1 The City, without invalidating the Contract, and as provided by law, may order extra work or m ake chan ges by altering, addin g to, or deducting from Work, the Contract Price being adjusted accordingly. All changes in t he Work shall be performed under applicable provisions of the Contract Documents. Design- Builder shall proceed promptly to perform the change unless otherwise directed in writing by the City. In giving instructions, the Engineer shall have authority to make minor Changes in Work no t involving change in cost or tim e and n ot inconsistent with the inten t of the Contract Documents. Otherwise, except in an emergenc y endangering life or property, no extra work or change shall be made except in pursuance of a wr itten Change Notice, Change Order or Time and Material Change Order issued by the City, and no cl aim for addition to contract sum shall be valid unless so ordered.

7.2 AUTHORITY TO ORDER CHANGES

7.2.1 No change shall be m ade nor extra work done except with the pr ior approval thereof by the Engineer and in conformity with the provisions of this Article. Minor changes in the Work th at involve no extra cost, may be approv ed, authorized and ordered by th e Engineer. The General Manager of Burbank Water and Power may execute any order for changes a nd/or extra work provided it d oes not exceed ten percent (10%) of t he Contract Price. The City Council must ap prove any order for changes and/or extra work that exceeds ten percent (10%) of the Contract Price or causes the total Contract Price for the w ork or improvement, including all Changes and extra work orders, to exceed the budgetary appropriation therefore.

7.2.2 D esign-Builder shall undertake, at its risk, Work included in any oral r equest, order, Change Notice, Change Order or Time and Material Change Order issued by a Person in excess of that Person’s authority as provided herein. Any Work performed by the Design-Builder beyond the lines and grades shown on t he Contract Documents or any extra Work performed or provided by the Design-Builder without not ice to the Engineer shall be c onsidered unauthorized and at the sol e expense of the D esign- Builder. W ork so d one will not be mea sured or paid for and no extensi on of Contract Time will be granted on account thereof. Any such Work may be ordered removed at the Design-Builder’s sole cost and expense. The failure of the C ity to direct or order ATTACHMENT 2
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removal of s uch Work sh all not constitu te acceptance or approval of the Work nor relieve the Design-Builder from any liability on account thereof.

7.3 OWNER INITIATED CHANGE NOTICE

7.3.1 The City may is sue a C hange Notice, in writing, to t he Design- Builder, describing a proposed Change to the Work and requesting the Design-B uilder to submit a Change Proposal, in a format acceptable to the City, wit hin fifteen (15) calendar Days after the City’s iss uance of the Change Notice. The Chang e Proposal shall includ e an analysis of i mpacts to cost and time, i f any, to perf orm the ext ra work, or delete Work, as applicable, including the effects and impact s, if any, on unchanged Work, estimates of costs (broken down by the categories listed in paragra ph 7.5 herein rela ting to change of the Contra ct Price) and Desig n-Builder’s proposed m ethods to minimize costs, delay and disruption to the performance of the Work. If De sign-Builder fails to submit a Change Pro posal within such period of time, it s hall be presumed that t he Change described in the Change Notice wil l not result in an increase to the Contract Price or Contract Time and the Change shall performed by Design-Builder without such increases. A Change N otice does not authorize the Design- Builder to commence performance of the changed work, unless otherwise specified in the Change Notice.

7.3.2 If the Parties reach agreement on the cost of pricing such change, a Change Order will be iss ued. If the Parties do not agree on all terms for performance or compensation of the change, City will issue a u nilateral Time a nd Material Ch ange Order.

7.4 DESIGN-BUILDER INITIATED CHANGE ORDER REQUEST

7.4.1 If the Design -Builder believes that instructions i ssued after the date of the Contract will result in increases to the Contract Price or C ontract Time or t he Design- Builder otherwise becomes aware of the need for or desirability of a Change in the Work, a Change Order Request (“COR”) may be submitted to the Engineer in writing, in a format acceptable to City, and must specify the reasons for such change, including relevant circumstances and impacts on the schedule. Design-Builder shall s ubmit a Change Proposal concurrently with the COR. The Design-Builder m ay request additional compensation and/or time through a COR but not for instances that oc curred more than five (5) calendar Days prior to the COR. Desig n-Builder’s failure to initiate a COR within such period shall be deemed a waiver of the right to a djustment of the Contract Price or the Contract Time for the alleged C hange. Any COR that is approved by City will be incorporated a C hange Notice, Change O rder, o r Time and Material Change Order. If the Engineer determines that t he Work in question is n ot a Change, Engineer will issue a Work Directive, ordering the D esign-Builder to proceed wit h the Work without delay. If the COR i s denied but t he Design-Builder believes that it does have merit, the Design- Builder may submit a cl aim in accordance with t he procedures set forth herein.

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7.5 CHANGE ORDER

7.5.1 Def
inition.

A Change Order is a wri tten order implementing Changes in the Work for which adjustments to the Contract Price and Contract Time, if any, have been agreed upon by the Parties, prior to the is suance of the Change Order either in the context of a City - initiated Change Notice or a Desig n-Builder-initiated COR. A Change Order s hall be issued by the Engineer and expressly indicates the intention to treat the items described therein as changes in t he Work. A Change Order must be issued and signed by the Engineer before any work is started on the items covered by the order.

7.5.2 Deter
mination of Costs.

The Con tract Price may only be changed by a Change Order or a Time and Material Change Order. The val ue of any Work covered by a Ch ange Order or of any claim for an increase or decrease in the Contract Price shall be determined in one of the following ways:

a. Lump Sum Method. Accept a ble lump sum proposal from Design- Builder properly itemized and supp orted by sufficient substantiatin g data to permit evaluation.

Estimates for lump sum pr oposals shall be limited to direct expenditures necessitated specifically by the subject extra work. In addition, the Design-Builder and Subcontractor will be paid a l ump sum for overhead, profit, and bond. Supervision of the extra work shall be included in the lump sum percentage for overhead. For added or omitted work by Subc ontractors, the Design- Builder shall furnish to the City the Subc ontractor's detailed estimate of the cost for labor, material, and equipment, including the markup by the Subcontractor for overhead and profit. Such estimate of cost shall be signed by the Subcontractor. The same requirement shall apply to any Sub- subcontractor or material supplier.

b. Time and Material Met hod. Direct cost of the work for la bor, material, and equipment rental plus markups for overhead and prof it for Gene ral Design -Builder, Subcontractor, and Sub-subcontractors as applicable. (Supervis ion is to be included in markup unless specifically agreed to in advance that special supervision is required.)

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7.5.3 Doc
umentation.

For either method used, the Design-Builder shall submit the following information as required by the Engineer:

a. L ABOR: A ttach itemized direct hourly rates in
accordance with certified payroll records times
total hours expended. Sep arately show dollar
amount for employer -paid payroll
taxes/insurance benefits.

Ent
er total as direct labor item. ____________

b. MATERIA L: Attach receipts, invoice s or
itemized quantity and uni t costs plus tax and
delivery.

Enter t otal as material item. ____________

c. EQUIPME NT: Attach receipts, invoices or tear
tickets indicating unit costs and total hours or
loads charged. (Small too ls with a value of
less than $500.00 are to be incl uded i n
markup.)
Enter total as equipment rental item. ____________

d. SUBTOTA L (Lines a + b + c) ____________

e. COMBI NED MARKU P FOR ALL OVERHEAD

AND PROFIT SHALL BE BASED ON THE
FOLLOWING:

(1) For th
e General Design-Builder, for
work performed by its forces,
fifteen percent (15%)
of its direct subtotal cost. ____________

(2) Fo r the Ge neral Design-Builder, for
work performed by a Subcontractor's
forces, ten percent (10%) of the
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direct subtotal cost due the Design-Builder. ___________

(3) For a Subcontractor o r Sub-subcontractor, for work performed by their own forces, fifteen percent (15%)
of their own direct subtotal costs. ____________

(4) For a Subcontrac tor, for work performed by a
Subcontractor, ten percent (10%) of the direct
subtotal cost due the Sub-subcontractor. ____________

f. SUBTO TAL (Lines d + e) ____________

g. GENERAL D ESIGN-BUILDER'S BOND
(NTE 1% Line f) ____________

h. TOTAL CHANGE ORDER REQUEST
(Lines f + g) ____________

7.5.4 F in al Agreement.

Agreement on any Change Order shall c onstitute a final settlement of all matters relating to the direct and indirect cost and time of performa nce of Change in the Work which is the subject of the Change Order including, but not limited to, all direct a nd indirect costs associated with such Change and any and all adjustments to the Contract Price and Contract Time. The execution of a Change Order constitutes a mutual accord and satisfaction of the compensation for the Change and Design- Builder specifically waives and release any and all claims , righ ts or i nterest, including but not lim ited to those for delay, impact, disruption, acceleration, loss of efficiency or other extraordinary or consequential costs arising directly or indirectly out of the Work d escribed in the Change Order. There shall be no reservation of rights by either Par ty on a Change Order.

7.5.5 E xtra work o rdered on the basis of time and materials will be pa id for at the actual necessary cost as determined by the Engineer, plus allowances for overhead and profit. The allowance for overhead and profit will include full compensation for superintendence, taxes , field office expense, ext ended overhead, home offi ce overhead, and all other items of expense or cost not included in the cos t of labor , materials, or equipment provided for under Paragraph 7.5. The allowance for overhead and profit will be made in accordance with the provisions of Paragraph 7.5.

7.5.6 It is underst ood that labor, materials, and equipment for extra work may be furnished by the Design-Builder or by the Subcontractor of the Design-Builder. When all or any par t of the extra wor k is p erformed by a Subcontractor, the allow ance specified herein will be applied to the labor, materials, and equipment costs of the Subcont ractor, to which the Design-Builder may add ten percent (10%) of the Subcontractor's total cost for the extra work. Regardless of the number of hierarchical tiers of Subcontractors, the ATTACHMENT 2
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ten percent (10%) increase above the Subcontractor's total cost which includes the allowances for overhead and profit specified herein may be applied one time only.

7.6 EXCLUDED COSTS

7.6.1 The term "cost of the work" shall not include any of the following:

7.6.1.1 Payroll costs and other compensation of Design-Builder's officers, executives, proprietors, partners, principals, general managers, en gineers, Design -Builders, estimators, attorneys, auditors, a ccountants, purchasing and contracting agents, expediters, timek eepers, clerks, and other personnel employed by the Design- Builder whether at the Sit e or in the Desig n-Builder's principal or a bra nch office for general administration of the Work all of whic h are to be considered administrative costs covered by the Design-Builder's allowance for overhead and profit;

a. Expenses of the Desi gn-Builder's principal and bra nch offices other than the Design-Builder's office at the Site;

b. Any part of Desig n-Builder's capit al expenses , including interes t on the Design-Builder's capital employed for the Work and charges against the Design-Builder for delinquent payments;

c. Cost of premiums for all Bonds and for all Insurance whether or not the Design-Builder is r equired by t he Cont ract Documents to purc hase and maintain the same (except as provided by Paragraph 7.5).

d. Costs due to the negligence of the De sign-Builder, any Subcontractor, or anyone directly or indirectly employed by a ny of them or for whose acts any of them may be lia ble, including but not limited to, the co rrection of Defective Work, disposal of materials or equipment wrongly s upplied, and making good any damage to property; and

e. Other overhead or general expense c osts of any kind and the cos t of any item not specifically and expressly included in Section Paragraph 7.5.

7.7 ALLOWABLE COST BASIS

7.7.1 For the purpose of evaluating and approving proposed Change Ord er costs, the City will use as its basis the latest edition of the Means Building Construc tion Cost Data Book Wes tern Edition. No other cost data books or manuals will be considered.

The maximum allowable cost for Change Orders resulting in additions to the Contract Price shall not exceed the cost of the work ident ified in the Means Cost Data Book, not including Design-Builder's overhead and profit, and bond as set forth in Section 20 D.

7.8 A

UDIT RIGHTS

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7.8.1 The Design-Builder shall afford, and shall cause its Subcontractors and Sub- Subcontractors to afford access to the City at all reasonable times , to any acc ounting books and records, cor respondence, instructi ons, invoices, receipts, vouch ers, memoranda and other records of any ki nd relating to the Work, al l of which shall be maintained for a period of at least four (4) years from and after the Dat e of Substantial Completion. The Design-B uilder and its Subcont ractors and Sub-Subcontractors shall make the same available for inspection, copying and audit, in accordance with generally accepted accou nting standards, within t hree (3) days following notification to the Design-Builder of the City's intent to audit, failing which any claims for an increase in the contract sum and/or extension of the contract time, as applicable, shall be waived.

7.9 DEDUCTION FROM WORK

7.9.1 The amount of cr edit to be allowed by t he Design- Builder to the City for a deletion or change that results in a net decrease in the contract sum shall be actual net cost. When both additio ns and credits co vering related work or s ubstitutions are involved in a change, the allowance for overhead and profit shall be figured on the basis of net increase, if any, with respect to that change.

7.10 DESIGN-BUILDER AND SURETIES BOUND

7.10.1 Any changes or extra work hereunder shall be a part of and subject to all the provisions of the C ontract and the Design- Builder, and its S ureties sh all be bound thereby and to the same extent as under the original Contract.

7.11 TIME AND MATERIAL CHANGE ORDER (TMCO)

7.11.1 If it be impossible or impracticable to ascertain the total cost of changes in the Work to be done before such work is begun, or if no agre ement can be reache d on changes in the Work and additions to the Contract Price, then a TMCO shall be issued unilaterally by t he Engineer instr ucting the Design- Builder to d o the W ork, indicating expressly and unmistakably the i ntention to treat the ite ms as changes in the W ork, setting forth the kind, character and limits of the Work as far as can be ascertained, th e terms under which changes to the Contract Price will be determined and the estimated total change in Contract Price an ticipated the reunder. The TMCO shall b e f ully executed by City. Such TMCO will become the ba sis for the Change Order when the amounts of adjustment to the Contract Price can be determined and the prior approval of the TMCO will be considered necessary au thority within the l imits of the estima ted change in Contract Pr ice. W ithout additional authority, no costs exceeding the estimated amount will be paid.

7.1 1.2 The Desi gn-Builder shall maintain r ecords sufficient to distinguish the direct cost of TMCO work from the cost of other operations. The Des ign-Builder shall furnish daily, on forms approved by City, reports of TMCO work. The reports shall itemize all costs for labor, materials, and equipm ent rental and give a total of costs t o date for the ATTACHMENT 2
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Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

Time & Material work. The reports shall include hours worked, rates of pay, names and classifications. Th e reports shall include equipment size, ty pe, identification number, rental rate, and hours of operati on. All records and reports shall be made immediately available to the Engineer upon request. The co st of furni shing such reports shall be included in Design-Builder's overhead and fee percentages.

7.11.3 All Time & Material re ports shall be signed by the Desi gn-Builder or authorized representative, and witnessed by City’s inspector each and every work day.

The Engineer will compa re the Engineer's records with the Design- Builder's reports, make the necessary adjustments and compile the costs of Time & Material work. When such reports are agreed upon and signed by both Parties, they will become the basis of payment.

7.11.4 Construction Equipment compensation shall not be allowed while it is inoperative due to breakdown. Except as ot herwise specified in this S ubsection, time will be computed in half an d full hours. In computing the tim e for use of Construction equipment, less than thirty-one (31) minutes shall be considered one- half hour. Costs for Constructi on equipment on standby sha ll be limited to the sum of th e hourl y overhead and depreciati on ra tes for eight (8) hours per twenty -four (24 ) h our period, accrued after the constructio n equipment is idle for sixtee n (16) hours in a twenty -four (24) hour period.

7.11.5 City m ay authorize and approve payment for necessary service s and expenditures other than labor, materials, and equipment rentals.

7.11.6 M aterials, equipment rental and other costs shall be substantiated by vendors' invoices submitted with the current repor ts; or, if not then avai lable, shall be submitted with su bsequent reports. If vendors' i nvoices are not submitt ed wi thin 30 days after completion of the Ti me & Material work or if in the opinion of the Engineer the cost of materials is excessive, then the cost of s uch items shal l be deemed to be the lowes t current wholesale prices at which the ite ms are available i n the quantities required, delivered to the work site, less cash or trade discounts.

7.11.7 Labor costs, overhead and profit and Design -Builder's fee percentages shall conform to that specified in Subsection entitled Change Orders herein.

7.12 FORCE ACCOUNT WORK

7.12.1 If no agreement can be reached on Changes in t he Work and adjustment of the Contract Price or Contract Time, or the Design- Builder refuses to acce pt a Change Notice, Change Order, or Time and Material Change Order, the City shall have the r ight to have the work in question done by Persons other than the Design-Builder.

8. TI
ME

ATTACHMENT 2
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Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

8.1 EXTRAORDINARY MEASURES

8.1.2 In t he event the City determines that the perf ormance of the Work, as of a Milestone Date, has not prog ressed or reached the level of completio n required by the Contract Documents, the C ity shall have the rig ht to or der the Design- Builder to take corrective me asures necessary to expedite the progress of construction, including, without limitation, (1) worki ng additional shifts or overtime, ( 2) su pplying additional manpower, equipm ent, and facilities and (3) su bmitting a Recovery Schedule for re - sequencing performance of the Work or other similar measur es (hereinafter referred to collectively as Extraordinary Measures). Such Extraordinary Mea sures shall continue until t he progress of the W ork complies with t he stage of completion required by the Contract Documents. The City's right to require Extraordinary Measures is solely for the purpose of ensuring the Design-Builder's compliance with the Project Schedule.

1) The Design-Builder shall not be entitled to an adjustment in the Cont ract Sum in connection with the Extraordinary Measures required by the C ity under or pursuant to this Section.

2) The City ma y exercise th e rights furnished the Ci ty under or pursuant to this Section as frequently as the City deem s necessary to ensure that the Design-Builder's perform ance of the Work will comply with the Cont ract Time, any Milestone Da te or completion date set f orth in the C ontract Documents.

8.1.3 If th e Des ign-Builder's Proj ect S chedule show s completion of the Work in advance of the Contract complet ion date, the Design- Builder agrees that in the event actual complet ion occurs, for any reas on, after the completion date specified in the Design-Builder's Project Schedule but wit hin the Contract completion date, the Design- Builder sh all not be ent itled t o and waives any claim against the City for delay, disruption or imp act costs or damages inc luding, without limitation cla ims for ex tended general conditions , hom e-office overhead, job-site overhead and management or administrative costs.

8.2 TIME EXTENSIONS

8.2.1 If the Critical Path is delayed at any time in the progress of t he Work by th e Non-Compensable Delays defined in the A greement, and did not result from the acts of the Design-Builder, and provided further that the Design- Builder has t aken reasonable precautions to prevent further delays owing to such causes, then the C ontract Time shall be exten ded by Change Order. The D esign-Builder agrees that the extension of time granted under this Section shal l be it s sole and exclusiv e remedy for the consequences of any delay described above.

ATTACHMENT 2
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RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

8.2.2 Any claim for extension of time shal l be made in writing to the City not more than ten (10) d ays after the commencement of the d elay. Within thirty (3 0) days after such delay the Design-Builder shall furnish the City with detailed information concerning the circumstances of the delay, the number of days actually dela yed, the appropriate Contract Document references, and the measur es ta ken to prevent or minimize the delay. The Design-Builder acknowledges the extreme importance of promptly notifying and thoroughly documenting any request for tim e extension and further spe cifically acknowledges t hat the City will suffer extreme preju dice should Design- Builder f ail in any w ay to co mply with this require ment. F ailure to comply with the procedures contained within this Section including the time lim its established in this Sub -section (e) shall const itute a waiver of such request. Evidence presented by the De sign-Builder that the Cit y h ad actual notice of the tim e extension re quest, that the City was not prejudiced by Design- Builder's failure to c omply with th is requirement, and/or that the City cons idered Design- Builder's request despit e Des ign-Builder's failure t o strictly comply with this provision shall not render this requirement unenforceable.

8.2.3 An extension of time will not be granted for a d elay caused by a shortage of materials, except the Cit y f urnished materials, unless the Desi gn-Builder furnishes to the City documented proof that the Design-Builder has made every effort to obtain such materials from every known source within reasonable r each of the W ork. The Desi gn- Builder shall also submi t proof, in the form of network analys is data that the inabil ity to obtain suc h materials when originally planned di d, in fact, cause a delay in Final Completion of the Work which could not be compensat ed for by revising the sequence of operations. Only t he physical shortage of material will be considered under these provisions as a cause for extension of time. No consideration will be given to any claim that m aterial could not be obtained at a reasonable , practica l, or economic al cost, unless it is shown to the satisfaction of the Design-Builder that such material could have been obtained only at exorbitant prices, en tirely inconsi stent w ith current rates takin g into account the quantities involved and the usual practices in obt aining such quantities and that such fact could not have been known or anticipated at the tim e the Contract was entered into.

8.2.4 No extension of time will be g ranted under this Section for any delay to the extent (1) that performance would have been so delayed by any Design-Builder induced causes, including, but not limited to, the fault or negligen ce of the De sign-Builder or its Subcontractors; or (2) for which any remedies are provided for or excluded by any other provision of the Contract.

8.2. 5 A Change Order will be issued to the Design-B uilder wit hin a reasonable period of time after approval of a r equest for extension of the Contract Time, specifying the number of days allowed, if any, and the new date or number of calendar days af ter the date of commencement for completion of the Work or specified portions of the Work.

8.2.6 An extension of time gr anted shall not r elease t he Design- Builder's Surety from its obligations. W ork shall continue and be carried on in accordance with all the ATTACHMENT 2
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RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

provisions of the Contract a nd said Contract shall be and shall remain in full force and effect during the continuance an d until Final Completion and Final Acce ptance of t he Work covere d by the Contract unless formally suspended or annulled in accordance with the terms of the Contract.

8.2.7 Neither the grant of an extension of time beyond the date fixed for Substantial Completion of the Work, nor the performance and acceptance of any part of the Work or materials specified by the Contract after the time specified for Substantial Completio n of the Work, shall be dee med to be a waiver by the City of the City' s right to abrogate thi s Contract for abandonment or failure to c omplete within the time specified or to impose and deduct damages as may be provided.

9. PAYMENTS AND COMPLETION

9.1 P AYMENTS TO DESIGN-BUILDER

9.1.1 B efore the first Application for Payment and wi thin the time specified in the Agreement, the Design-Builder shall submit to City a detailed Schedule of Values, which shall be used as the basis for payment.

9.1.2 Within thirty (30) calendar day s of receipt of a full and complete Invoice for Payment, the City will make a partial payment upon the re quest of the Design-Builder on the basis of an approved est imate of the Work performed during the preceding calendar month unde r this Con tract. The Ci ty will retain from such payments five percent (5%) of the amount of each estimate until thirty (30) days after Final Completion and acceptance by the City of all the Work covered by this Contract and recordation of a Notice of C ompletion in the Registrar/ Recorder’s Office of the County of Los A ngeles.

No such estimate or partial payment shall be required to be made when in the judgment of th e Engineer, the w ork is not proceeding in accordance with the provisions of the Contract, or when in his judgment, t he total value of the Work done since the last estimate is less than Five Hundred Dollars ($500.00).

9.1.3 It is mutua lly agreed between the Parties hereto that the maki ng of any payment to the Design- Builder under this Contract or any certificate given shall not relieve the Design- Builder of its guarantee obligations or res ponsibilities under thi s Contract, or fu ll compl iance with the Cont ract Doc uments, including the Pl ans, Drawings, and Specifications, or be construed as accepting any portion of the equipment, materials or work until the Contract is fully complete and form ally accepted by the City.

9.1.4 T he Design-Builder further agrees that the payment of the final amount due under the Contract, and the adjustment and payment for any ex tra work done and work in accordance with any changes of the same, shall release the City, i ts City Council and their officers, agents and employees from any and all claims or liability on account of the Work performed under the Contract, and any changes thereof, and any extra work.

ATTACHMENT 2
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RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

9.1.5 P ursuant to Public Contracts Code Sect ion 22300, the Design- Builder may substitute securities in place of retained funds withheld by the City or, in the alternative, request that the City make payment of retentions earned direc tly to an escrow agent at the expense of the Design-Builder.

9.2 APPLICATION FOR PAYMENT

9.2.1 In submitting each Application for Payment Design-Builder warrants that: title to all Work covered by each Application for Payment shall pass to the City no later than the time of payment. The Desig n-Builder further warrants that all Work covered by the previous Application for Paym ents is free and clear of liens, claims, security interest or other encumbrances.

9.2.1.1 Each Application for Payment shall:

1. Reference the Project;

2. Describe the services performed;

3. Include an estimate of the percentage of Work completed;

4. Show the total amount of the payment due;

5. Include a certification by a principal member of the Design-Builder's firm as Design- Builder and by the Design -Build Team Members identified in this Agreement, that t he Work has been performe d in accordance with the provisions of the Contract Documents;

6. Maintain and, upon request, include such documentation as may be necessary to substantiate the percentage of completion of Work;

7. Include duly completed and executed forms of Conditional Waiver and Release in accordance with California Civil Code Section 3262 of all Persons eli gible t o file stop notices in connection with the Work covering the payment requested; and

8. Incl ude duly completed and exec uted forms of Unconditional Waiver and Release, in accordance with California Civil Co de Section 3262 of all Persons eligible to f ile sto p notices in connection with the Work covering the payment receiv ed by Design-Builder for the previous Application for Payment.

9.3 PAYMENT

9.3.1 Upon submission of any s uch Application fo r Payment, if the City is satisfied that Des ign-Builder is making sat isfactory progress toward completion of Work in ATTACHMENT 2
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Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

accordance with this Agr eement, City shall promptly approve the Application, i n which event payment shall be made within thirty (30) days of receipt of the Application by City.

Such approval shall not be unr easonably withheld. If the Ci ty does not approve an Application for Pay ment, City sh all notify Des ign-Builder in writing of t he reasons for non-approval, within seven (7) calendar days of receipt of the Application.

Subject to verif ication of the value o f Work completed, the City shall pay the Design- Builder for the percentage of Work co mpleted through the period covered by the Application for Payment less 7.5% retainage.

9.3.2 City shall h ave the right, but not the obligation, to make payments jointly to Design-Builder and any of its Subcontractors or suppliers.

9.4 SUBSTANTIAL COMPLETION

9.4.1 Substantial Completion is defined to mean t he stage in the progress of the Work when, i n the City's sole and r easonable discreti on, the Work is su fficiently complete in accordance w ith the Contract Documents so that City can occupy or utilize the Work for its intended use and:

1. A certificate of successful energization of th e Work of the Solar Project in accordance with the Design Criteria and Tec hnical Specifications. If energization and final testing of t he Work does not occur within a reasonable time as a result of factors beyond the control of D esign-Builder, then Design -Builder may, upon ten (10) days’ notice to City, request release of the payment otherwise due upon providing t he City a letter of credit in a form a pproved by the City’s legal counsel's Office from a bank located in Los Angel es County in the amount of the sum released.

2. There are no stop not ices or pending c laims 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 provid es evidence that i t has co mpleted or is rea dy 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, fixtu res and equipment required b y t he Contract Documents are in place;

6. Certifications from all Design -Build T eam M embers that the Work has been completed in accordance with the design and the Contract Documents.

ATTACHMENT 2
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Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

7. D esign-Builder has submitted to City a written certific ation that all remaining Work shall be completed within thirty (30) cal endar days following the date of Substantial Completion and that reproducible as- built drawings will be completed and submitted to City within thirty (3 0) calendar days f ollowing the date of Substantial Completion.

9.4.2 When the Design- Builder considers that t he Work is Substantially Complete, as defined herein, the Design -Builder sh all p repare and submit t o t he City a written request for issuance of a Certificate of Substantial Completion and a comprehensive list of items t o be completed. The Design- Builder shall proceed promptly to complete and correct the items. Upon receipt o f the De sign-Builder’s requ est for issuance of a Certificate of Substantial Comp letion, the City will make an inspection to determine whether Substantial Completion has occurred. T he City may either reject the Design- Builder’s request f or issuance of a Certi ficate of Substa ntial Co mpletion or issue a Certificate of Substantial Co mpletion with the punchlist items of Work to be completed or corrected (“Punchlist”) and fixing the time within which Design-Builder shall complete the Punchlis t it ems and achieve Final Completion. Fai lure to include an item on the Design-Builder’s list do es not alter the responsibility of the Design- Builder to complete all Work in accordance with the Contract Documents.

9.5 FINAL COMPLETION AND FINAL PAYMENT

9.5.1 The Design -Builder shall, upon completion of the Work and final c lean up, submit to the Engineer, a s worn Affidavit of Final Com pletion, signed by Design-B uilder and eac h of th e D esign-Build Team Members th at to th e bes t 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 Contra ct, i ncluding changes in t he Work, and under all billings of whatever nature are accurate, complete and final and that no additional compe nsation ov er and above the final payment will be requested or is due under the C ontract or under any adjustment iss ued thereunder for said undisputed Work, and that upon receipt of final payment the Design-Builder will release City form all claims or liability for a dditional sums on account of undisputed Work . The City will inspect the Work and will either reject the request or accept the Work as evidenced by the recordation of a Notice of Completion.

9.5. 2 Neither final payment nor a release of the retainage equal to 5% shall become due to Design -Builder until a maximum of thirty (30) days following completion of all punchlis t Work, issuance of a Final Certificate by the appropriate governmental agency, City’s recordation of a Notice of Completion and the Design- Builder submits to the City:

9.5.2.1 Completed and e xecuted forms of unconditional waiver a nd release of rights from all Persons e ligible to file stop notices in connection with the previous application for payment;

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Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

9.5.2.2 Completed and e xecuted forms of unconditional waiver and release of rights upon final payment in accordance with California Civil Code Section 3262 from all Persons eligible to file stop notices in connection with the Work;

9.5.2.3 An affidavit that all payrolls, bills for materials and equipment and other indebtedness connected with the Work fo r which the C ity might in any way b e responsible, have been paid or otherwise satisfied;

9.5.2.4 Consent of surety to final payment;

9.5.2.5 Data establishing payment or satisfaction of all obligation such as receipts, releases and waivers from all Pe rsons legally eligible to file stop notices in connect ion with the Work;

9.5.2.6 Submittal of As-Built Drawings in reproducible format;

9.5.2.7 Submittal of warranties, operational and maintenance manuals and other submittals required by the Contract Documents;

9.5.2.8 Submission of Design-Builder's Waiver, removal of temporary facilities and services; and

9.5.2.9 Such other documentation as the City may reasonably require.

9.6 OWNER TO WITHHOLD PAYMENT

9.6.1 In addition to the amount which the City may other wise retain under the Contract, th e City may withhold a sufficient amount or amounts of any payment o r payments otherwise due th e D esign-Builder, as in the judgment of Engineer may be necessary to cover:

9.6.1.1 Payment, which may be due, and payable for just cla ims against the Design-Builder or any Subcontractor for labor, materials or equipment in the performance of this Contract.

9.6.1.2 For defective or noncomplying Work not remedied.

9.6.1.3 F or failure of the D esign-Builder to make proper payments to its Subcontractors.

9.6.2 Failure to withhold suc h amounts shall not affect any rights or obligations of the Design-Builder or Sureties under this Contract.

9.7 DISPUTED ITEMS

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Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

9.7.1 In the event of a d ispute between City and Design -Builder, the City may withhold from final paymen t an amount not to exceed 150% of disputed items including all incomplete punchlist items and those items necessary to obtain a final Certificate of Occupancy.

9.8 WAIVER OF CLAIMS

9.8.1 Accept ance of Final Pa yment by the Design- Builder shall constitute a waiver of affirmative claims by the Desig n-Builder, except those previously made in writing and identified as unsettled of the time of final payment.

10. PROTECTION OF PERSONS AND PROPERTY

10.1 S AFETY PRACTICES

10.1.1 The D esign-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 ab ide by all applicable Sa fety Order s of the Division of Industrial Safety, State of California, and ordinances of the City, and s hall schedule and perform its work t o avoid any danger or hazard to other Design-Builders or workmen on the project, or its own men due to work being performed by others.

10.1.2 Weekly safety meetings with the Design -Builder's represe ntatives, City representatives, and the State Industrial Safety Engineer, shall be held if, in the opinion of the Engineer, conditions on the project warrant such meetings.

10.1.3 B ef
ore the Notic e to Proceed, the Design- Builder shall supply the City with Safety Data Sheets (SDS) for all c hemicals to be used in the performanc e of th is Contract. The City will make available to the Design-Builder the SDS of any products in use in the areas of Work co vered by this Contract. All hazardous materials to be properly disposed of off-site.

10.1.4 The Design-Builder is fully responsible for the safe performance of al l Work for which they are contractually committed, whether performed by themselves or by their Subcontractors. The Design- Builder must provide adequate protection f or the health and safety of City employees, the general public an d its o wn 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 Co de of Regulations and shall sign the Contractor IIPP Certificati on Form at the time the Proposal was submitted. By signing, the Contractor has certified, u nder 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 ATTACHMENT 2
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Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

the Contractor to the ext ent that they are exposed to w orksite an d job assignment specific hazards. In addition, the Contractor’s subcontractors shall provide a com pleted IIPP Certification Form to the Engineer prior to commenci ng their portion of the Wor k.

At the request of the City, Contractor and/or Contr actor’s su bcontractors must submit their IIPP Program to City’s Safety Officer for review.

The program shal l be written and shall i nclude but n ot be limited to the followi ng elements:

10.1.4.1 Identification o f the Person or Persons responsible for implementing the Design-Builder's safety progr am. List name of the Design- Builder’s on- site Safety Representative.

10.1.4.2 The D esign-Builder's system f or i dentifying and evaluating workplace hazards including scheduled periodic inspections to identify unsafe conditions and work practices.

10.1.4.3 The Design- Builder's methods and procedures for correcting unsafe or unhealthy conditions and work practices in a ti mely manner. The Design- Builder shall correct unsafe and unhealthy conditions and work practices in a timely manner based on the severity of the hazard.

10.1.4.4 The Desi gn-Builders occupational health and safety training program designed to instruct employees in general safe and healthy work practi ces and to provide specific instruction with respect to hazards specific to each e mployee's job assignment.

10.1.4.5 The Des ign-Builder's system for communicating with employees on occupational health and safety matters, inc luding provisions designed to encourage employees t o inform the Des ign-Builder of hazards at the worksite without fear of reprisal.

10.1.4.6 The Design-Builder's system for e nsuring that employees comply with safe and healthy work practices, which may include disciplinary action.

10.1.4.7 The Design- Builder shal l keep appropriate records of steps taken to implement and maintain the program s uch as ins pection and training doc umentation.

Contract shall include inspection checklist and training documentation form.

10.1.4.8 The Design- Builder shall include procedures to inv estigate occupational injury or occupational illness.

ATTACHMENT 2
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Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

10.1.4.9 For Construction projects the Design- Builder shall adopt a wr itten code of safe practices which relates to the employers operations. Tai lgate meetings shall be held at least every ten (10) working days with employees/crews.

11. BONDS AND INSURANCE

11.1 BONDS

11.1.1 Gener
al. The Design- Builder shall prom ptly furnish, a t its own cost and expense, the requisite Faithful Performance and Payment Bonds with a responsible Corporate Surety authorized to issue such bonds i n C alifornia on the bond fo rms 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 satisfact orily to t he 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 specifi cally 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 Civ il Procedure Section 995.660(a). Ev ery Bond must display the Sur ety's b ond number and incorpo rate the Contract by reference. The terms of the Bonds shall provide that th e Surety agrees that no change, extension of time, alteration or modification of the C ontract Documents or the Wo rk to be performed thereunder shall in anyway a ffect its obliga tions and shall waive notice of any such change, extens ion of tim e, alteration o r modific ation of t he Contract Documents. The form and content of each bond shall be subject to review and approval by the Engineer and City’s legal counsel.

11.1.2 Fai
thful 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 limit ed 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 accept ance by the City, the Des ign-Builder shall, at its own cost and expense, repair, replace and correct such defects to the satisfaction of t he Engineer within thirty (30) days a fter notice thereof by the City.

11.1.3 Pay
ment 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 no t 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 S ubcontractors, fails to pay for any materials, transportation, appliances, or utilities used in, upon , for or about the perf ormance of t he work contracted to be done , or for a ny work or labor thereon of any kind, or for amounts due under the Unem ployment Insurance Act wi th ATTACHMENT 2
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RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

respect to such work or labor, said Surety will pay the same in an amount not exceeding the sum set for ab ove, and also in case suit is brought upo n this bond a reasonable attorney's fee to be fixed by the Court.

11.2 INSURANCE – GENERAL REQUIREMENTS

Prior to exec ution of t he contract, the Design- Builder shall furnish the City evidence of coverage from insurers accep table t o the City and in a form acc eptable to the City.

Such insurance shall be maintained by the Design- Builder at the Design- Builder's sole cost and expense. Coverage to be maintained through the Notice of Completion plus ___________ (X) additional year(s). Unless otherwise approved by the City, Design- Builder’s insurance shall be written by insurers authorized to do business in the State of California and with a minimum “Best's” Insurance Guide rating of “A -.” Self -insurance will not be considered to comply with these insurance specifications.

In the event any p olicy of insurance required under this Agreement does not comp ly with these r equirements or is c anceled and not replaced, the City has the right but not the duty to obtain the insurance it d eems necessary and any premium paid by the City will be promptly reimbursed by the Design-Builder.

Such insurance shall not lim it or qualify the liabilities and obligations of the Design- Builder assumed under the contract. The City shall not by reason of its inclusion under these policies incur liability to the insu rance carrier for payment of premium for these policies.

Any insurance carried by City which may be applicable shall be deemed to be excess insurance and the Design- Builder's insurance is prim ary for all purposes despite any conflicting provision in the Design-Builder's policies to the contrary.

Said evidence of insurance shall cont ain a provision that the policy cannot be canceled or reduced in coverage or amount w ithout first giving 30 c alendar days' notice thereof (10 days for n on-payment of premium) by r egistered mail to City ’s Purchasing Division, at City of Burbank, 301 E. Olive Avenue – Suite 305, Burbank, CA 91502.

Should any portion of the required insuranc e be on a "Claims Made" policy, the Design- Builder shall, at the policy expiration date fol lowing completion of Work , provide evidence that the "Claims Made" policy has been renewed or replaced with the same limits, terms and conditions of the expiring pol icy, or that an extended discovery period has been purchased on the expiring policy at leas t f or the contract under which the Work was performed.

Failure to maintain and provide acceptable evidence of the required insurance for the required period of cover age shall constitute a breach of contract, upon which the City may immediately terminate or suspend the agreement.

ATTACHMENT 2
A2-105
General Conditions Index
BWP Design-Build 00702-50
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

Design-Builder shall be responsible for all Subcontrac tors’ com pliance wi th the insurance requirements.

11.3 WORKER’S COMPENSATION/EMPLOYER’S LIABILITY INSURANCE

The Design-Builder shall provide Workers' Com pensation insurance covering all of the Design-Builder's employees in accordance with the laws of any stat e in which the Work is to be performed and including Employer's Liability insurance an d a Waiver of Subrogation in favor of the City. The limit for E mployer's Liability coverage shall be not less than $1,000,000.00 each accident and shall be a separate pol icy if no t included with Workers' Compensation coverage. Evidence of such insurance s hall be in the form of a Certificate of insurance or a Certified True and Correct copy of t he entire original policy acceptable to the City’s legal counsel. Workers' Comp ensation/Employer's Liability exposure may be self -insured provided that the City is f urnished with a copy of the certificate issued by the state aut horizing the Design-Builder to self-insure. Design- Builder shall notify the Purchasing Division by receipt ed delivery as soon as possible of the state withdrawing authority to self -insure. The policy shall be endor sed to waive all rights of recovery agai nst the City, members of the C ity Council, and offic ers, employees and agents of the City.

11.4 COMMERCIAL GENERAL/PUBLIC LIABILITY INSURANCE

The Design- Builder shall provide Commercial General Liability insurance wi th Contractual Liability, Independent Contractors, Broad Form Property Damage, Premises and Operations, Collapse/Underground Hazard, Products and C ompleted Operations , and Personal Injury coverages included. Such insurance shall pr ovide coverage for total limits actually arranged by the Design-B uilder, but not less than $2, 000,000.00 per occurrence and an aggregate limit not be less than $4,000,000. Coverage to be written on form CG 00 01 or an equivalent and should be project spec ific. Policy should be endorsed or have language to make it pri mary and non-contributory and shall include a waiver of subrogation in favor of the City . Umbrella or Excess Liability covera ges may be used to supplement primary coverages to meet the requir ed limits. 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 wit h 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 approved by the City) and an ISO form CG 20 37 04 13 (or a subs titute form providing equivalent coverage as approved by the City).

ATTACHMENT 2
A2-106
General Conditions Index
BWP Design-Build 00702-51
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

2) Severability-of-Interest or Cross -Liability Clause such as: "The policy to which this endorsement is attached shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the company's liability."

3) A description of the coverages included under the policy.

11.5 CO MPREHENSIVE AUTOMOBILE LIABILITY INSURANCE COVERAGE

The Design-Builder shall provide Commercial Automobile Liability insurance which shall include coverag e’s for liability arisin g out of t he use of owned, non- owned, and hired vehicles for performance of t he Work as required to be l icensed under the California or any other applicable state vehicle code. The Commercial Automobile Liability insurance shall have not less than $ 1,000,000.00 combined single limit per occurrence and shall apply to all operations of the Design-Builder.

The Commercial Automobile Liability policy shall name the City and its Council, officers, agents and employees while acting within the scope of their empl oyment, as additional insureds with the Design- Builder, and shall insure agai nst liability for death , bo dily injury, or property damage resul ting from the performance of this Agreement. The form of evidence of insurance shall be a Certificate of I nsurance acceptable to the City or a Certified True and Correct copy of the entire or iginal policy acceptable to the City. The Additional Insured End orsement is to be on an I SO form CG 20 10 11 85, or an ISO form CG 20 10 04 13 (or a subst itute form prov iding equivalent co verage as approved by the City) and an ISO form CG 20 37 04 13 (or a substitute form providing equivalent coverage as approved by the City).

The policy shall also be endorsed to include Transportation Pollution Liability insurance, covering materials to be transported by the Design- Builder pursuant to this contract.

This coverage may also be pr ovided on the Contractors’ Pollution Liability policy. In addition, the MCS -90 and CA 99 48 endorsements are required for hazar dous materials/waste transporters.

The policy shall also be endorsed to provide a waiver of subrog ation, in favor of the City.

11.6 PROFESSIONAL LIABILITY INSURANCE

The Design-Builder shall provid e Professional Liability insurance covering liabilit y arising from errors and omissions made dur ing 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, s uch policy shall be maintained for not less than five (5) years after the dat e of final acceptance of co mpletion 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.

ATTACHMENT 2
A2-107
General Conditions Index
BWP Design-Build 00702-52
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

11.7 CONTRACTORS’ POLLUTION LIABILITY INSURANCE

The Design- Builder shall provide Contractors’ Pollu tion Legal Liability, not excluding asbestos and/or lead with lim its no less tha n $2,000, 000 combined single limit, per occurrence, and $4,000,000 aggregate. Policy should be endorsement or ha ve language to make it primary and n on-contributory. Policy sh all include a waiver of subrogation, in favor of the Ci ty. Coverage may be included in the Commerci al General/Public Liability Insurance policy. Evidence of such cov erage shall be on the City's Additional Insured Endorsement for m or a Certified True and C orrect 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, agent s and employees as additional insureds with the Named Insured f or the activities and opera tions under Bid Schedule No. 1494. Additional Insured Endorsement to be on an I SO form CG 20 10 11 85, or an ISO form CG 20 10 04 13 (or a substitute form providing equivalent coverage as appr oved by the City) and an ISO form CG 20 37 0 4 13 (or a substitu te form providing equival ent coverage as approved by the City).

2) Severability-of-Interest or Cross -Liability Clause such as: "The policy to which this endorsement is attached shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the company's liability."

3) A description of the coverages included under the policy.

11.8 BUILDER’S RISK/COURSE OF CONSTRUCTION INSURANCE

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 d eductible porti on of the policy. The deductible will be no greater than $100,000. Builder’s Risk s hall specifically includ e equipment breakdown (boiler and machinery) coverage and not exclude soft costs.

11.9 RESPONSIBILITY FOR DAMAGE AND THEFT

The Desi gn-Builder may insure the equipmen t, 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 ATTACHMENT 2
A2-108
General Conditions Index
BWP Design-Build 00702-53
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

parts thereof, used or employed in fully completing the Contract, until after the contr act is completed and formal acceptance of the Work by the City.

12. QUALITY AND CORRECTION OF WORK

12.1 QUALITY OF WORK AND MATERIAL

12.1.1 All Work must be done and completed in a thorough, workmanlike man ner by mechanics skilled in their various trades, notwithstandi ng any error or omission in the Contract Documents, and all parts shall be made accurately to standard gauge so that renewals and repairs may be made when necessary with the least possible expe nse.

All materials emp loyed shall be new and homogenous and of high quality throughout.

Any forgings and castings shall be free from flaws and imperfecti ons, the determination of which sh all follow the latest and most improved practice. All Work must b e in accordance with the Contract Documents and shall be made to conform thereto. Any material specified by reference to the number, symbol or ti tle of a s tandard such as ASTM sha ll comply with the requirements of the latest revisions thereof or any supplement or amendment there to e xcept wh ere a different edition is s pecified. The referenced standards shall have the same force and effect as if the y were printed in full in the Contract Documents. If the Design- Builder wishes to use codes or standards not specified in the Contrac t Documents, Design-Builder shall submit for approval sufficient information to the City to determine equivalency. The Des ign-Builder shall be held to guarantee all material, apparatus, and equipment, to fulfill all requirements and special guarantees set forth in the Specifications.

12.1.2 Should the test of any material, apparatus, or equipment show that it does not meet the guarantees or requirements of the Contract Documents, the Design- Builder shall at once proceed to furnish such new parts as may be necessary t o bring it up to requirements. All exp enses of furnishing new parts, or alteration to existing parts, and of tests made necessary by such failure to meet the guarantees and other requirements of the Specifications, shall be at the expense of the Design-Builder.

12.2 UNCOVERING OF WORK

12.1.3 If a por tion of the Work is covered contrary to the Engineer’s request or to requirements specifically expresse d in the Contract Documents, it must, if required in writing by the Engineer, be uncovered for the Engineer’s observation and be replaced at the Design-Builder’s expense without change in the Contract Time.

12.1.4 If a portion of the Work has been covered whi ch the Engineer has not specifically requested to observe prior to its ’ being covered, the Engineer may request to see such Work and it shall be uncovered b y the Design-Builder. I f such Work is in accordance with the Contract Document s, cost of uncovering and replacement shall, by ATTACHMENT 2
A2-109
General Conditions Index
BWP Design-Build 00702-54
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

appropriate Change Order, be at the City’s expense. If such W ork is not in accordance with t he Co ntract Documents, correction shall b e at the Design -Builder’s expense unless the condition was caused by the C ity or a s eparate Des ign-Builder i n which event the City shall be responsible for payment of such costs.

12.3 CORRECTION OF WORK

12.3.1 Bef
ore Substantial Completion.

12.3.1.1 The Design-Builder shall promptly correct W ork rejected by the Engineer or failing to conform to the requirements of the Contract Do cuments, w hether discovered before or after Substantial Completion and whethe r or not fabricated, installed or c ompleted. Costs of correcti ng such rejected Work, incl uding additional testing and inspections and compensation for the Engineer’s services and expenses made necessary thereby shall be at the Design-Builder’s expense.

12.3.2 A f
ter Substantial Completion.

12.3.2.1 In addition to the Design- Builder’s warranty obligations under the Agreement if, with in five (5) years after the date of Subs tantial Com pletion of the Work or designated portion thereof after the date for commencement of an ap plicable special warranty r equired by the Contract Documents any o f the Work is found to be not in accordance with the requirements of the Contract Documents, the Des ign-Builder shall repair or replace it promptly after receipt of written notice from the C ity to do so unless the City has previously given the Design-Builder a written acceptance of such condition.

The City shall give such notice promptly after discovery of the condition.

12.3.2.2 The Design-Builder shall bear the cost of correcting destroyed or dam aged construction, whether completed or partially completed, of t he City or separate Design- Builders caused by the D esign-Builder’s correction or removal of Work which is not in accordance with the requirements of the Contract Documents.

12.3.2.3 Nothing contained in this Paragraph 12.3. 2 shall be construed to establish a period of limitation with respect to other obligations which the Design-Builder might have under the Contract Documents. Establis hment of the five (5) year period for correction of Work as descri bed in Subparagraph 12.3 .2.1 relates only to the specific obliga tion of the Design-Builder to correct the Work, and has no relationship to the time within w hich the obligation to c omply with the Contract Documents may be sought to be enforced, nor to the t ime within which proceedings may be commenced to establish the D esign- Builder’s liability with respect to the Design- Builder’s obligations other than specif ically to correct the Work.

13. MISCELLANEOUS PROVISIONS

13.1 GOVERNING LAW

ATTACHMENT 2
A2-110
General Conditions Index
BWP Design-Build 00702-55
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

13.1.1 The terms of the Contract Docu ments shall be inter preted acco rding to the laws of the State of California. Should litigation occur, the venue shall be in the Superior Court of Los Angeles County.

13.2 SUCCESSORS AND ASSIGNS

13.2.1 The Contract Documents shall be binding upon and inure to the bene fit of the City and Design-Builder and their successors and assigns.

13.2.2 T his Contract, nor any part thereof, shall not be assigned, hypothecated, sold, alienated or transferred by the Design- Builder or by operation of law or otherwise, and will not be recogn ized or create any liability of the City thereby, with the sole exception and unless the prio r formal approval of the City has been obtained thereto and th e Surety has consented thereto in writing filed with the City.

13.3 NO PERSONAL LIABILITY

13.3.1 No member of t he City’s governing body or other officer, employee or agent of the Cit y o r their consulta nts shall be personally responsible for any liability arising under or by virtue of the Contract.

13.4 INTERFERENCE

13.4.1 The Design- Builder shall employ, insofar as possible , such methods and means in the performance of the Work as will cause th e m inimum of interr uption to public utilities, or interference with the Work of the City or any other Design- Builder, or the activities of others whose property may be used by the Design-Builder.

13.5 CLEAN PREMISES

13.4.1 The Des ign-Builder shall leave all g lass, p lumbing fixtures, e quipment, tile, paint and premises in clean, perfect and undamaged condi tion; all buildings, structures, and pavements used by Design- Builder shall be left broom cle an and all debris shall be removed and disposed of by Design- Builder, an d all Design -Builder's tools and equipment shall be removed from the premi ses, before acceptance of the Work by the City.

13.6 TELEPHONE

13.6.1 If the Design -Builder requires a telephone, he shal l make all necessar y arrangements and pay therefore; it shall b e maintained in some conven ient location as directed by the Engineer until Work is completed.

13.7 SANITARY FACILITIES

ATTACHMENT 2
A2-111
General Conditions Index
BWP Design-Build 00702-56
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

13.7.1 The Design- Builder shall provide adequate sanitary facilities for all construction personnel at the job site in a location approved by Engine er, and maintain the same in a clean and sanitary c ondition and also provide for the removal and disposal of all garbage, exc rement and waste matter from said premises to the satisfaction of the Engineer.

13.8 ADVERTISING

13.8.1 N o advertising of any kind or descri ption, bill posters, printed, painted or by the use of any other method or application legible to human sight, shall appear on any buildings, structures, fences, canopies, posts or signs excep t valid and authorized legal notices required to be placed thereon, without prior written perm ission of the City’s Engineer.

14. TERMINATION OR SUSPENSION OF THE CONTRACT

14.1 TERMINATION FOR DEFAULT

14.1.1 If the Design -Builder refuses or fails to commence or prosecut e the Work, or any separate part thereof, or with such diligence as will insure its completion within the time specified in this Contract and any authorized extension thereof, fails to perform the Work in strict accordance with the Contract Documents, fail s to use an adequate number of skilled workers, fails to make pr ompt pay ment to Subcontract ors or for material or labor, fails to install Work that is free of defects, or disregards Applicab le Laws, the City may serve written notice upon Design- Builder and its Surety of the City’s intention to terminate the Work to be p erformed u nder this Contract, such notice to contain the reasons for such intenti on, and unless within ten (10) day s after the serving of such notice, such violation shall cease and arrangements satisfactory to the Engineer for the correction thereof be m ade, upon the expiration of said ten (10) days Desig n- Builder shall be determined to be in defa ult, and further work thereunder by the Design- Builder shall immediately cease and terminate.

14.1.2 It is recognized that in the even t a v oluntary or involuntary peti tion in bankruptcy is filed by or against the Design -Builder, or if the Design- Builder signs or makes a general assignment for the benefit of creditors, or if an application or other procedure for appointment of a receiv er for t he Design- Builder or its bus iness is favorably ruled upon by competent authority providing for such appointment of a receiver, such events could impair or frustrate Design- Builder’s performance of the Work. Accordingly, it is agreed that upon the occurrence of any such event, the Ci ty shall be entitled to req uest of Design -Builder, o r its successor in interest, a dequate assurance of future performance in accordance with the Contract Documents. Design- Builder’s failure t o comply with the City’s request for adequate assurances within t en (10) calendar days of t he request shall entitle the City to terminate the Desi gn-Builder for default.

ATTACHMENT 2
A2-112
General Conditions Index
BWP Design-Build 00702-57
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

14.1.3 In the ev ent of any such termination as provided in paragraphs (a) and (b) above, legal title to all equipment, m aterials, and supplies, whether or no t incorporated or installed in the Work to be done hereunder, and all construction or installa tions and Work done shall immediately vest in and pass to the City, and the City may take charge of the Work and complete all the Work to be furnished and done u nder this Contract in any m anner considered to be for the best interest of the Cit y. In com pleting this Contract, the City ma y take possession of and use any or all of the materials and supplies in the discretion of the City, for which the Design-Builder has a valid agreement with the supplier. The City m ay procure other materials, equipment, s upplies and provide the necessary labor for the completion of the Work, or enter into a Contract therefore, and char ge all t he c ost and expenses to fully complete t he Contract to the Design-Builder. In the event such cost and expense to fully complete the Contract shall exceed the amount which would have been due the Design- Builder under the Contract had it been completed by him, any such excess cost and expense shall be due and paid to the C ity by the Design- Builder and its Surety. If Design- Builder or i ts Surety fails to pay such amount immediately upon the City’s demand, then the City shall be entitl ed to collect interest from the date of said demand.

14.1.4 In lieu of entering the provisions of this section for termination for fault, the City may p ay the Des ign-Builder for portions of Work already completed and treat the unperformed work as if it had never been included i n the Contra ct. If this provision is invoked by the City, Design-Builder shall have no claim for prospective profits on Work not performed.

14.1.5 U pon a determination by a court of competent jurisdiction that any default termination of Design-Bu ilder, or its s uccessor in interest was wrongful, such termination will be deemed to be converted to a termination for convenience pursuant to the provisions of this Subsection and Design -Builder's remedy for wrongful termination in such event shall be li mited to the rec overy of the payments permitted for termination for convenience as set forth herein.

14.1.6 The provisions of this subsection shall be non-exclusi ve, and shall be in addition to all other rights and remedies available to the City under law or in equity.

14.2 TERMINATION FOR CONVENIENCE

14.2.1 City reserves the right to terminate Design-Builder’s performance, without regard to cause or fault or breac h of Desig n-Builder, upon issuance of a writ ten Notice of Termination for Convenience, effective immediately unless otherwise provided in said Notice of Termination.

14.2.2 The a
mount to b e paid to the Design-B uilder by City in the event of termination for Convenience shall consist solely of:

14.2.2.1 T he cost of Work completed in accordance with the Contract Documents up to the date of issuance of the Notice of Termination; and ATTACHMENT 2
A2-113
General Conditions Index
BWP Design-Build 00702-58
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

14.2.2.2 The Design- Builder's reasonable costs of demobilization for a period of thirty (30) days following the effective date of the N otice of Termination, including costs of the Design- Builder's personnel reas onably required to effec tuate t he cancellation, and such storage, t ransportation, and other co sts incurred which are reasonably necessary for the preservation, protection or disposition of the Work.

14.2.3 In no event shall the City be responsible for and Design- Builder hereby waives a ny cl aim for overhead or anticipated prof its on unp erformed work or other economic loss upon termination for convenience.

14.3 SUSPENSION BY OWNER FOR CONVENIENCE

14.3.1 The City may, without cause, order the Design- Builder in writing to suspe nd, delay or interrupt the Work in whole or in part for such per iod of tim e as the City may determine. If such suspension, delay or interruption causes the Design-Builder to incur increased cost for the performance of the Work, an adjustment to the Contr act Price shall be made for such costs as are directly attributab le to such suspension, delay or interruption. If such suspension, delay or interruption cause s a delay to the critical path of the Work, an adjustment to the Contract Time shall be made.

15. LABOR CODE REQUIREMENTS AND PREVAILING WAGE RATES

15.1 In accordance with the provisions of Division 2, Part 7, Chapter 1 of the Labor Code, the general prevailing rates of per diem wages for each craft, classification and type of work needed to execute this Project have been determined by the Director of the California Depa rtment o f I ndustrial Relati ons. The Design- Builder and each Subcontractor shall p ay all wo rkers not less than the prevailing wage rates as determined by the Director of Industrial Relations i n accordance with the pr ovisions of the Labor Code. As provided in Labor C ode 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 stipulate d prevailing wage rate for such work or cra ft 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 pa rticular, Labor Code Section 1770 to 1780, inclusive. In addit ion 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 prevai ling wage ra tes shall be paid to each workman by Design-Builder.

15.1.1 D esign-Builder shall strictl y 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, S aturday, Sunday, and hol iday work. Design -Builder shall forfeit to the City the penalties pre scribed in the Labor C ode for noncompliance, including the penalties set forth in Sect ion 1813 for violations of Sections 1810 through 1815.

ATTACHMENT 2
A2-114
General Conditions Index
BWP Design-Build 00702-59
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

15.1.2 Des ign-Builder shall comply with the provisi ons of Labor Code, Sections 1777.5 and 1 777.6, and Title 8, Code of Regulations, Sections 20 0 et seq., relating to apprentice employment and training. Desi gn-Builder shall assume full responsibility for compliance with said sections with respect to all ap prenticeable occupations upon the project. To e nsure compliance an d complete understanding of the law regarding apprentices, and s pecifically the required ratio thereunder, Design- Builder should, where some question exists, contact the Divisio n of Apprent iceship Standards, 455 Golden Gate Avenu e, 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 un der Section 1777.7 of the Lab or Code from progress payments then due.

15 .1.3 P ursuant to the require ments of Section 1860 of the Labor Code, Design- Builder will be required to secure the payment o f Workers’ Compensation to its employees in accordance with the provisions of Section 3700 of the Labor Code.

15.1.4 Pursuant to Section 1861 of the Labor Code, De sign-Builder is obligated to sign and file with the Cit y a certi fication in the form included in the Proposal Letter. .

Execution of this Contract by Design- Builder shall constitute signing and filing of the certificate.

15.1.5 Design-Builder shall comply with t he applicable provisions of the Labor Code and implementing regulations relating to Labor Nondiscrimination, including those more specifically set forth in the Proposal Letter.

15.2 Pur
suant to the provisions of Section 1770 of the La bor 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 heal th and welfare, vacation, pensions and similar purposes) applicable to the work to be done, for straight time, over time, Saturday, Sunday and hol iday work. Copies of the prevaili ng wage rate determinations of the Director of the Department of Industrial R elations are on file in the office of the Purchasing Manager at 301 East Olive Avenue – Suite 305, Burbank, California 91502 or online at www.dir.ca.gov. The Design-Builder shall obtain a copy of said determination and post it in a conspicuous place on the job site.

15.3 T
he City will not recognize any claim for additiona l 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 elemen ts to be considered by the Design-Builder in determining its bi d, and w ill not under any circumstances be considered as the basis of a claim against the City on the Contract.

15.4 The Design-Builder shall maintain accurate payroll records in accordance with the provisions of Labor C ode Section 1776 and shall, upon request , f ile s aid records with the City.

ATTACHMENT 2
A2-115
General Conditions Index
BWP Design-Build 00702-60
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

15.5 The Design-Builder shall forfeit as a penalty to the C ity Twenty Five Dollars ($25) for each worker employed in the execution of the Work by the Design- Builder or any Subcontractor fo r e ach calendar day during which suc h w orkman i s 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 performe d by the employees of Des ign-Builder or Subcontractor i n excess o f eight (8) hours per day and forty (40) hours during any one week shall be permitted upon compensat ion of all hours worked in e xcess of eight (8) hours per day at n ot less than one and one-h alf times the basic rate of pay as provided in said Section 1815.

15.6 The Design-Builder shall pay to all workmen needed to execute the Contract all travel and subsisten ce payments defined in the applicable collective bargaining agreements filed in accordance with Section 1773.8 of the Labor Code of the State of California.

15.7 The Design- Builder and any Subcontractor under him shall comply with the requirements of Section 1777.5 and 1777.6 in the employment of apprentices.

15.8 Information relative to apprenticeship standards, wage schedules, and other requirements may be obtaine d from the Director of I ndustrial Relations, Office of the Administrator of Apprenticeship, San Fran cisco, Calif ornia, or from t he Division of Apprenticeship Standards and its branch offices.

15.9 P ursuant to Section 7103.5 of the Public Contract Code:
“(b) In entering into a public wor ks 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 a nd to all causes of acti on it may have under Section 4 of the Clayton Act (15 W.S.C. Sec 15) or under the Cartwr ight Act (Ch apter 2 [commencing with Section 16700] of Part 2 of Division 7 of the Business and professions Code), arising from purchases of go ods, services, or materials pursuant to the public works contractor or the subcontract. The assignment shall be made and bec ome effective at the time the awarding b ody tenders final payment to the contractor, without further acknowledgement by the parties.”

END OF GENERAL CONDITIONS
ATTACHMENT 2
A2-116

BWP Design-Build 00702-61
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

Exhibit K

CLARIFICATIONS AND ADDITIONS

FOR

REQUEST FOR PROPOSAL NO. 1521
ATTACHMENT 2
A2-117

BWP Design-Build 00702-62
RFP No. 1521
Design Build Contract – Solar Project at the Hollywood Burbank Airport RITC

Exhibit K

Clarifications and Additions

1. Substitutions requested during RFP process are approved for following items:
a. Racking System: Unirac Racking System
b. Clamp System: S-5! Clamp
c. Solar Panels: Hanwha Q Cells 590W
d. Inverter: SMA America, LLC Sunny Tripower CORE1 62-US

2. Pricing based on:
a. No work to be done on live loads
b. Structural as-builts of construction to be provided prior to structural engineering. Intrusive structural inspections requiring cutting, coring, or patch back of existing conditions are not included
c. Contractor to conduct soil test prior to construction, any reasonably unforeseen soil conditions needing a change in design will be negotiated

3. Point of interconnection is 480V Side of the utility transformer a. City to ensure interconnection is sufficiently sized to handle PV output

ATTACHMENT 2
A2-118