PROGRESSIVE DESIGN-BUILD
AGREEMENT FOR SERVICES
FOR SOLAR PHOTOVOLTAIC & BATTERY ENERGY STORAGE SYSTEM
PROJECT
THIS AGREEMENT (AGREEMENT) is made and entered into this _______ day of__________, ___________, by and between the CITY OF MANTECA, a municipal corporation of the State of California (hereinafter referred to as "CITY"), and
WILLDAN ENERGY SOLUTIONS
Design-Build Firm
2401 E. KATELLA AVENUE,
SUITE 300
ANAHEIM CA 92806
MAILING ADDRESS CITY STATE ZIP
a California corporation.
1065713 (A GENERAL ENGINEERING)
STATE LICENSE CLASSIFICATION & NUMBER (if required)
hereinafter referred to as DB Firm.
WITNESSETH:
A. WHEREAS, CITY desires to enter into this AGREEMENT for services for the Progressive Design-Build delivery of the Solar Photovoltaic & Battery Energy Storage System Project at the Wastewater Quality Control Facility (WQCF) (PROJECT).
B. WHEREAS, CITY desires to retain DB Firm to provide these services by reason of its qualifications, applicable license(s), and experience for performing such services, and DB Firm has offered to provide the required services on the terms and in the manner set forth herein.
C. WHEREAS, the DB Firm identified potential energy and operational saving opportunities at the CITYs WQCF that could qualify for implementation in accordance with Government Code §4217; and
D. WHEREAS, CITY staff has reviewed and determined that DB Firm possesses the unique skills, expertise, and technical capabilities necessary to secure the highest available rebates from power savings for the WQCF; and E. WHEREAS, on July 14, 2026, the CITY entered into an Agreement (C2026-168) for Services with the DB Firm for the preparation of a Conceptual Design Progressive Design-Build Agreement for Services
2 Package and key findings of the PROJECT to evaluate and confirm the PROJECTs technical feasibility, financial viability, and alignment with the CITYs operational requirements; and
F. WHEREAS, the completed Conceptual Design Package included the following:
Conceptual drawings and layouts
Design narrative
Feasibility summary
Financial evaluation
Turnkey cost and financing options; and
G. WHEREAS, payment to the DB Firm shall only be made if the PROJECT advances to construction and is contingent upon the PROJECT being deemed viable by the CITY and successfully securing of PROJECT funding; and H. WHEREAS, the CITY finds that the anticipated cost to the CITY for energy conservation services provided by the PROJECT under the AGREEMENT will be less than the anticipated marginal cost to the CITY of energy that would have been consumed by the CITY in the absence of the PROJECT, in compliance with California Government Code §4217; and
I. WHEREAS, on August 22, 2026 and August 28, 2026, the CITY gave public notice in the newspaper, at least 14 calendar days prior to September 15, 2026 CITY Council meeting regarding the CITYs decision to implement Government Code §4217 into this AGREEMENT; and
J. WHEREAS, the CITY has determined that entering into this AGREEMENT, implementing the PROJECT is in the best interest of the CITY and that California Government Code §4217 allows the CITY to enter into this AGREEMENT; and K. WHEREAS, the CITY desires to retain the DB Firm to identify and develop energy efficiency measures as well as energy generation measures, and in compliance with California Government Code §4217, to design, engineer, procure, construct, install, and commission such energy efficiency measures and energy generation measures, all as described in EXHIBIT A (DB Firm Proposal/Scope of Work Pre-Construction Phase Services), attached hereto and made a part hereof; and
L. WHEREAS, CITY determined that its goals for the PROJECT would be best-served by using a process whereby CITY and DB Firm will collaboratively implement the PROJECT through a Progressive Design-Build Project delivery method, during which DB Firm will deliver the PROJECT in three (3) phases; and M. WHEREAS, in Phase 1 (Pre-Construction Phase), the DB Firm shall prepare approximately 60% Plans, Specifications, and Estimates (PS&E) in sufficient detail to obtain subcontractor bids via a competitive bidding process to ultimately Progressive Design-Build Agreement for Services
3 negotiate a Guaranteed Maximum Price (GMP) for the Phase 2 (Construction Phase) with the CITY and Phase 3 (Guarantee Phase); and
N. WHEREAS, if CITY and DB Firm cannot agree to a GMP, the DB Firm shall prepare a PS&E bid set for a Progressive Design-Bid-Build Project delivery; and NOW, THEREFORE, in consideration of their mutual covenants, the parties hereto agree as follows:
AGREEMENT
1. SCOPE OF SERVICES:
A. DB Firm shall do all work, attend all meetings, produce all reports and carry out all activities necessary to complete the services described in EXHIBIT A. This AGREEMENT and its exhibits shall be known as the AGREEMENT Documents. Terms set forth in any AGREEMENT Document shall be deemed to be incorporated in all AGREEMENT Documents as if set forth in full herein. In the event of conflict between terms contained in these AGREEMENT Documents, the more specific term shall govern.
If any portion of the AGREEMENT Documents is in conflict with any other portion or provisions contained in the AGREEMENT, the AGREEMENT shall govern over the conflicting provisions contained in the exhibits to the AGREEMENT. To eliminate doubt, in the case of conflict between DB Firms proposal or DB Firms attachments and the CITYs AGREEMENT and attachments, the CITYs AGREEMENT and attachments shall take precedence over DB Firms proposal and attachments.
B. The AGREEMENT Documents represent the entire and integrated AGREEMENT between the CITY and DB Firm and supersede prior negotiations, representations, or Agreements, either written or oral. The AGREEMENT may be amended or modified only by an Amendment. The AGREEMENT Documents shall not be construed to create a contractual relationship of any kind between any persons or entities other than the CITY and the DB Firm.
C. DB Firm enters into this AGREEMENT as an independent contractor and not as an employee of the CITY. The DB Firm shall have no power or authority by this AGREEMENT to bind the CITY in any respect. Nothing in this AGREEMENT shall be construed to be inconsistent with this relationship or status. All employees, agents, contractors or subcontractors hired or retained by the DB Firm are employees, agents, contractors or subcontractors of the DB Firm and not of the CITY. The CITY shall not be obligated in any way to pay any wage claims or other claims made against DB Firm by any such employees, agents, contractors or subcontractors, or any other person resulting from performance of this AGREEMENT.
D. The DB Firm agrees it has satisfied itself by its own investigation and research regarding the conditions affecting the work to be done and labor and materials needed, and that its decision to execute this AGREEMENT is based on such independent investigation and research.
Progressive Design-Build Agreement for Services
4 E. Pre-Construction Phase:
DB Firm shall perform the services of design, pricing, and other services for the PROJECT based on the Pre-Construction Phase Scope of Services as set forth in EXHIBIT A, attached hereto and incorporated herein (the Pre-Construction Phase Scope of Services). DB Firm shall perform such services to the level of completion required for DB Firm and CITY to establish the GMP for the Construction Phase, as set forth below. The Pre-Construction Phase Services shall commence within (10) working days of DB Firms receipt of CITYs Notice to Proceed unless the parties mutually agree otherwise in writing. DB Firm shall schedule workshops with the CITY at completion of 30% and 60% design, corresponding decision logs, and release of purchase for long lead items.
Upon completion of the Pre-Construction Phase Services, the DB Firm shall submit a proposal to CITY for the completion of the Construction Phase of the PROJECT.
Construction Phase services shall consist of the completion of design services for the PROJECT, the procurement of all materials and equipment for the PROJECT, the performance of construction services for the PROJECT, and the start-up testing, and commissioning of the PROJECT. The DB Firms Construction Phase Services and PreConstruction Phase Services shall collectively be referred to herein as the WORK. The GMP shall be developed during the Pre-Construction Phase on an open-book bid basis.
All cost estimates for GMP development shall be disclosed to the CITY during the PreConstruction Phase for negotiation.
The GMP Proposal shall include the following unless the parties mutually agree otherwise:
The cost for development of PS&E bid-set.
The proposed GMP.
A list of the assumptions and clarifications made by DB Firm in the preparation of the Proposal, which list is intended to supplement the information contained in the drawings and specifications.
All mark-ups including but not limited to all overhead, profit, labor, materials, equipment, supplies, all taxes sales, consumer, use, employment-related and other taxes mandated by applicable Laws and Regulations or that result from the performance of the WORK.
The Scheduled Substantial Completion Date upon which the GMP is based, and a schedule upon which the Substantial Completion Date is based and a Project Schedule for WORK.
If applicable, a list of allowance Items, Allowance Values, and a statement of their basis.
If applicable, a schedule of alternate prices.
If applicable, schedule of unit prices.
If applicable, a statement of Additional Services which may be performed but which are not included in the proposed GMP, and which, if performed, shall be the basis for a change in compensation and/or schedule.
Progressive Design-Build Agreement for Services
5 The time limit for acceptance of the proposed GMP, which shall not be less than one hundred twenty (120) days from the date of delivery of the proposed GMP.
F. A permit listing detailing any permits and/or regulatory approvals and the party responsible for acquiring such permit, if any. The DB Firm will be responsible for the application, acquisition, and maintenance of various government approvals required for this WORK. The CITY will provide reasonable assistance in connection with such obligation.
After submission of the GMP Proposal, DB Firm and CITY shall meet to discuss and review the proposal. CITY, shall give written notice to DB Firm of any comments, inconsistencies, or inaccuracies in the information presented. If appropriate, DB Firm shall, upon receipt of CITYs notice, make appropriate adjustments to the GMP.
Upon mutual written AGREEMENT, the GMP Proposal shall establish the basis for an amendment to this AGREEMENT, for the Construction Phase. Under no circumstances shall the DB Firm proceed with any Construction Phase WORK unless the GMP Proposal has been accepted in writing by the CITY.
If CITY rejects the GMP Proposal, or fails to notify DB Firm in writing on or before the date specified, the proposal shall be deemed withdrawn. In such event, either party may terminate this AGREEMENT subject to Section 4.
G. Construction Phase:
The DB Firms Construction Phase Services shall collectively be referred to herein as the WORK. DB Firm shall commence with the Construction Phase upon receipt of the Notice to Proceed and will perform the WORK in accordance with the GENERAL CONDITIONS (EXHIBIT D) and AGEEMENT DOCUMENTS.
DB Firm shall substantially complete the WORK no later than the date set forth in the GMP Proposal (Scheduled Substantial Completion Data), subject to adjustment in accordance with the GENERAL CONDITIONS (EXHIBIT "D"). DB Firm shall achieve Final Completion no later than thirty (30) days from Substantial Completion (Scheduled Final Completion Date), subject to adjustment in accordance with the GENERAL CONDITION (EXHIBIT D).
It is hereby understood and agreed that it is and will be difficult and/or impossible to ascertain and determine the actual damage that CITY will sustain in the event of and by reason of DB Firms delay; therefore, DB Firm agrees that it shall pay to CITY the sum of ONE THOUSAND DOLLARS ($1,000) per day as liquidated damages for the period of time that, due to the acts or omissions of DB Firm and excluding delays attributable to the CITY, Utility, Third Parties not under the direct supervision of DB Firm, or Authorities Having Jurisdiction over any aspect of the WORK, any portion of the WORK remains unfinished after the time fixed for Substantial Completion. In no event shall DB Firms Progressive Design-Build Agreement for Services
6 liability for Liquidated Damages, in the aggregate across all Phases, exceed five percent (5%) of the Contract Price. Said Liquidated Damages being CITYs sole and exclusive remedy for any delay.
It is hereby understood and agreed that this amount is not a penalty, but is a reasonable estimate of the damages that CITY will incur. In the event any portion of the liquidated damaged is not paid to CITY, CITY may deduct that amount from any money due or that may become due the DB Firm under the AGREEMENT, CITY may seek recovery of Liquidated Damages from the DB Firms Performance Bond Safety and/or CITY may seek recovery of Liquidated Damages from the DB Firm or the Performance Bond Surety without having exhausted remedies against the other.
H. Energy Savings Guarantee Phase:
DB Firm shall commence with the Energy Savings Guarantee Phase upon the execution of an Energy Savings Guarantee in the form of EXHIBIT Z, following the execution of the Notice of Completion and to be filed with the San Joaquin County.
DB Firm shall include all monitoring, reporting, verification measurement, and performance obligations required under EXHIBIT Z, including but not limited to:
Measurement and verification of actual energy production and savings from the PROJECT.
Adjustments of baseline energy consumption in accordance with the methodologies set forth in EXHIBIT A-A.
Preparation and submission of monthly Energy Saving Reports to the CITY.
Performance of all corrective actions necessary to achieve guaranteed saving levels.
Coordination with CITY staff to ensure uninterrupted system operations and compliance with all applicable laws, codes, and regulatory compliance.
The Energy Saving Guarantee Phase shall continue for the duration specified in EXHIBIT Z, unless extended or modified by written Agreement of the parties. DB Firm shall maintain all required monitoring equipment, software, and reporting systems throughout the Energy Savings Guarantee Phase at no additional cost to the CITY.
The CITY shall provide reasonable access to the WQCF and system components for the purpose of measurement, verification, and performance monitoring. The CITY shall operate the WQCF in a manner consistent with the baseline assumptions established in EXHIBIT A-A, expect where deviations are approved in writing by the DB Firm and the CITY.
2. TERM OF AGREEMENT
Progressive Design-Build Agreement for Services
7 A. The services of DB Firm are to commence upon execution of this Agreement and shall be completed and this AGREEMENT terminated on December 31, 2031, unless otherwise extended in writing by the mutual agreement of both parties.
B. The CITY Manager or designee may, by written instrument signed by the Parties, extend the duration of this AGREEMENT in the manner provided in Section 5, provided that the extension does not require the payment of compensation in excess of the maximum compensation set forth in Section 3, Compensation.
3. COMPENSATION:
A. The DB Firm shall be paid in accordance to the attached Fee Schedule in EXHIBIT C. DB Firm charges separately for certain costs incurred in the representation, as well as for any disbursements to third parties made on CITYs behalf.
Such costs and disbursements include, for example, the following: mileage (at the IRS rate in effect at the time the travel occurs), overnight delivery and messenger services.
DB Firm shall be reimbursed for expenses related to travel, for example (flights, hotels, meals). However, DB Firm shall not make travel arrangements or incur costs on behalf of CITY without prior written authorization to incur said expenses and in no event shall total compensation under this AGREEMENT exceed FIFTEEN MILLION DOLLARS ($15,000,000) without CITYs prior written approval. With written approval an additional THREE MILLION DOLLARS ($ 3,000,000) can be made available via amendment.
B. Said amount shall be paid within 30 days after satisfactory PROJECT progress and approval of the monthly billings by the CITY. DB Firm shall furnish CITY with invoices for all expenses as well as for all materials authorized by this AGREEMENT.
The invoices shall be submitted with the monthly billings.
C. If the WORK is suspended at the request of the CITY, compensation shall be based upon the portion of work completed as of the date of the suspension, subject to Section 4.
D. Compensation for Construction Phase Services
CITY shall pay DB Firm, in accordance with the General Conditions (EXHIBIT D), a GMP for the WORK. The GMP shall be established by the GMP Proposal and is subject to adjustments made in accordance with Article 10,11, and 12 of the GENERAL CONDITIONS (EXHIBIT D).
For WORK performed after the Effective Date of the Construction Phase, CITY shall make progress payments after CITYs receipt of each properly submitted and accurate Application for Payment submitted in accordance with Section 14.02 of the GENERAL CONDITIONS (EXHIBIT D). All such payments will be measured by the Progress Payment Schedule, pursuant to Paragraph 14.01 of the GENERAL CONDITIONS (EXHIBIT D). WORK completed as estimated shall be an estimate only and no inaccuracy or error in said estimate shall release DB Firm or any Surety from such WORK or from enforcing each and every provision of the AGREEMENT DOCUMENTS.
Progressive Design-Build Agreement for Services
8 Progress payments will be in an amount equal to ninety-five percent (95%) of WORK completed. The remaining five percent (5%) of such amounts shall be held as the Retention.
Each Progress Payment shall be conditioned upon DB Firm providing to CITY with the corresponding Application for Payment a conditional waiver and release of claims for payment upon payment from the DB Firm and each of its subcontractors and materials suppliers that have contracts with DB Firm that exceed TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000) in the form required by Civil Code Sections 8132, covering all sums requested in such Application for Payment, and an unconditional waiver and release of claims for payment from each party, in the form required by Civil Code Section 8132, covering aums disbursed pursuant to the most recently preceding Application for Payment. Failure to provide either a condition waiver and release, or unconditional waiver and release shall result in the subject sums being in dispute, and thus withheld from payment.
After DB Firm has, as reasonably determined by CITY, satisfactorily completed all documented punch list items identified during the final inspection and has delivered. In accordance with the AGREEMENT DOCUMENTS, all maintenance and operating instructions, schedules, guarantees, bonds, certificates or other evidence of insurance certificates of inspection, marked up record documents, and other documents required by the AGREEMENT DOCUMENTS, DB Firm may make application for final payment following the procedure for progress payments and in accordance with Section 14.07 of the GENERAL CONDITIONS (EXHIBIT D).
It is the policy of the CITY that payment for all goods and services shall be made in a timely manner. The time at which payment shall be due from CITY shall be thirty (30) days from receipt of a proper invoice (i.e., Application for Payment) and acceptance of services.
If the DB Firm chooses to do Operation & Maintenance (O&M) after the Construction Phase is completed, specified in EXHIBIT Z for these additional services for the agreed compensation between both parties. DB Firm would be required to perform all necessary maintenance as recommended by the manufacture in the O&M manuals (to be provided upon Final Completion) for equipment installed as part of this AGREEMENT.
Services will only be needed until the CITY has made everything back in Return on Investment (ROI).
E. Compensation for Energy Savings Guarantee Phase Services DB Firm shall perform all Energy Savings Guarantee Phase obligations in a manner that ensures the PROJECT achieves the guaranteed energy savings and operational performance levels set forth in EXHIBIT Z. DB Firm shall remain fully responsible for the professional and technical accuracy of all measurement and verification activities, and shall promptly correct, at its sole cost, any deficiencies in performance, reporting, or system operations that prevent achievement of the guarantee Progressive Design-Build Agreement for Services
9 savings or at the sole discretion of the DB Firm, submit a payment for the shortfall as described in Exhibit Z.
No more than seven (7) months following Final Completion, DB Firm will provide to CITY a savings report identifying the Actual Energy Savings achieved during the installation period as well as a period of six (6) consecutive months during this period following Final Completion. The CITY acknowledges that the typical Return on Investment (ROI) ranges from seven (7) to ten (10) years, depending on system performance, utility rate structures, and operation conditions. The saving report provided by DB Firm shall include sufficient data and documentation to allow CITY to evaluate the PROJECTs progress toward achieving the anticipated ROI and long-term financial benefits.
F. EPACT 179D Allocation
To encourage the implementation of a more energy-efficient system, Section 179D of the Internal Revenue Code provides for the allocation of a tax deduction based on the efficiency of the design. Since a public entity is exempt from paying taxes, the Internal Revenue Code permits this allocation to be passed along to the designer of the system as an additional incentive to incorporate the most efficient system affordable. Accordingly, once the building/system is placed into service, it is understood and agreed that the tax deduction granted pursuant to Section 179 D of the Internal Revenue Code will be allocated to the DB Firm.
4. TERMINATION:
A. This AGREEMENT may be terminated by either party, provided that the other party is given not less than thirty (30) calendar days written notice of intent to terminate.
B. The CITY may suspend this AGREEMENT, at no additional cost to CITY, provided that the DB Firm is given written notice of suspension. If CITY gives such notice of suspension, DB Firm shall immediately stop its activities under this AGREEMENT.
C. Notwithstanding any provisions of this AGREEMENT, DB Firm shall not be relieved of liability to the CITY for damages sustained by the CITY by virtue of any breach of this AGREEMENT by DB Firm, and the CITY may withhold any payments due to DB Firm until such time as the exact amount of damages, if any, due the CITY from DB Firm is determined.
D. In the event of termination, the DB Firm shall be compensated as provided for in this AGREEMENT, including but not limited to compensation for all work performed up to the time of termination, all committed design, any applicable vendor cancellation or restocking charges, amounts attributable to noncancelable equipment, and reasonable demobilization costs, except as provided in Section 4C. Upon termination, the CITY shall be entitled to all final work and draft work, including but not limited to, appraisals, Progressive Design-Build Agreement for Services
10 inventories, studies, analyses, drawings and data estimates performed to that date in accordance with Section 7 herein.
5. AMENDMENTS, CHANGES OR MODIFICATIONS:
Amendments, changes or modifications in the terms of this AGREEMENT may be made at any time by mutual written agreement between the parties hereto and shall be signed by the persons authorized to bind the parties hereto.
The AGREEMENT DOCUMENTS may only be amended, modified, or supplemented as provided in Article 10, 11, and 12 of the GENERAL CONDITIONS (EXHIBIT D).
6. EXTENSIONS OF TIME:
DB Firm may, for good cause, request extensions of time to perform the services required herein. Such extensions shall be authorized in advance by the CITY in writing and shall be incorporated in written amendments to this AGREEMENT in the manner provided in Section 5.
7. PROPERTY OF CITY:
A. It is mutually agreed that all draft and final materials prepared by the DB Firm under this AGREEMENT shall become the property of the CITY, and the DB Firm shall have no property right therein whatsoever. Immediately upon termination, the CITY shall be entitled to, and the DB Firm shall deliver to the CITY, all data, drawings, specifications, reports, estimates, summaries and other such materials as may have been prepared or accumulated to date by the DB Firm in performing this AGREEMENT which is not DB Firms privileged information, as defined by law, or DB Firms personnel information, along with all other property belonging exclusively to the CITY which is in the DB Firms possession.
B. Additionally, it is agreed that the parties intend this to be an AGREEMENT for services and each considers the products and results of the services to be rendered by DB Firm herein (the Work) to be a work made for hire. DB Firm acknowledges and agrees that the Work (and all rights therein, including, without limitation, copyright) belongs to and shall be the sole and exclusive property of the CITY.
8. COMPLIANCE WITH ALL LAWS:
A. DB Firm shall comply with all applicable laws, ordinances, and codes of federal, State and local governments, and shall commit no trespass on any public or private property in performing any of the work authorized by this AGREEMENT. It shall be CITYs responsibility to obtain all rights of way and easements to enable DB Firm to perform its services herein. DB Firm shall assist CITY in providing the same.
Progressive Design-Build Agreement for Services
11 B. DB Firm warrants to the CITY that it is licensed by all applicable governmental bodies to perform this AGREEMENT and will remain so licensed throughout the progress of the Work, and that it has, and will have, throughout the progress of the Work, the necessary experience, skill and financial resources to enable it to perform this AGREEMENT.
9. WARRANTIES AND RESPONSIBILITIES - DB Firm:
A. DB Firm agrees and represents that it is qualified to properly provide the services set forth in EXHIBIT A in a manner which is consistent with the generally accepted standards of DB Firms profession.
B. DB Firm agrees and represents that the work performed under this AGREEMENT shall be in accordance with applicable federal, State and local law in accordance with Section 17A hereof.
C. DB Firm shall designate a Project manager who at all times shall represent the DB Firm before the CITY on all matters relating to this AGREEMENT. The Project manager shall continue in such capacity unless and until he or she is removed at the request of the CITY, is no longer employed by DB Firm, or is replaced with the written approval of the CITY, which approval shall not be unreasonably withheld.
D. DB Firm shall provide corrective services without charge to the CITY for services which fail to meet the above professional and legal standards and which are reported to DB Firm in writing within sixty (60) days of discovery. Should DB Firm fail or refuse to perform promptly its obligations, the CITY may render or undertake performance thereof and the DB Firm shall be liable for any expenses thereby incurred. 10. SUBCONTRACTING:
None of the services covered by this AGREEMENT shall be subcontracted without the prior written consent of the CITY., which will not be unreasonably withheld. DB Firm shall be fully responsible to the CITY for the negligent acts and omissions of its contractors and subcontractors, and of persons either directly or indirectly employed by them, as it is for the negligent acts and omissions of persons directly employed by DB Firm.
11. ASSIGNABILITY:
DB Firm shall not assign or transfer any interest in this AGREEMENT whether by assignment or novation, without the prior written consent of the CITY. However, claims for money due or to become due to DB Firm from the CITY under this AGREEMENT may be assigned to a financial institution, or to a trustee in bankruptcy, without such approval.
Notice of any assignment or transfer whether voluntary or involuntary shall be furnished promptly to the CITY.
Progressive Design-Build Agreement for Services
12 12. INTEREST IN AGREEMENT:
DB Firm covenants that neither it, nor any of its employees, agents, contractors, subcontractors has any interest, nor shall they acquire any interest, direct or indirect, in the subject of the AGREEMENT, nor any other interest which would conflict in any manner or degree with the performance of its services hereunder. DB Firm shall make all disclosures required by the CITYs conflict of interest code in accordance with the category designated by the CITY, unless the CITY Manager determines in writing that DB Firms duties are more limited in scope than is warranted by the category designated by the CITY code and that a narrower disclosure category should apply. DB Firm also agrees to make disclosure in compliance with the CITY conflict of interest code if, at any time after the execution of this AGREEMENT, CITY determines and notifies DB Firm in writing that DB Firms duties under this AGREEMENT warrant greater disclosure by DB Firm than was originally contemplated. DB Firm shall make disclosures in the time, place and manner set forth in the conflict of interest code and as directed by the CITY.
13. MATERIALS CONFIDENTIAL:
All of the materials prepared or assembled by DB Firm pursuant to performance of this AGREEMENT are confidential and DB Firm agrees that they shall not be made available to any individual or organization without the prior written approval of the CITY, except by court order.
14. LIABILITY OF DB Firm-NEGLIGENCE:
DB Firm shall be responsible for performing the work under this AGREEMENT in a manner which is consistent with the generally-accepted standards of the DB Firms profession and shall be liable for its own negligence and the negligent acts of its employees, agents, contractors and subcontractors. The CITY shall have no right of control over the manner in which the work is to be done but only as to its outcome, and shall not be charged with the responsibility of preventing risk to DB Firm or its employees, agents, contractors or subcontractors.
15. INDEMNITY AND LITIGATION COSTS:
To the fullest extent permitted by law, DB Firm shall indemnify, defend, and hold harmless the CITY, its officers, officials, agents, and employees against all claims, damages, demands, liability, costs, losses and expenses, including without limitation court costs and reasonable attorneys fees, arising from DB Firms negligent acts or negligent failure to act, errors, omissions or willful misconduct incident to the performance of this AGREEMENT except such loss or damage caused solely by the active negligence, sole negligence, or willful misconduct of the CITY. The provisions of this paragraph shall survive termination or suspension of this AGREEMENT.
16. DB Firm TO PROVIDE INSURANCE:
Progressive Design-Build Agreement for Services
13 A. DB Firm shall not commence any work before obtaining, and shall maintain in full force at all times during the duration and performance of this AGREEMENT, the policies of insurance specified in this Section. Such insurance must have the approval of the CITY as to limit, form, and amount, and shall be placed with insurers with a current A.M. Bests rating of no less than A in Class VII (an NR rating is acceptable for Workers Compensation insurance written with the State Compensation Insurance Fund of California).
B. Prior to execution of this AGREEMENT and prior to commencement of any work, the DB Firm shall furnish the CITY with certificates of insurance and copies of endorsements providing evidence of coverage for all policies required by the AGREEMENT. The DB Firm and its contractors and subcontractors shall, at their expense, maintain in effect at all times during the performance of work under the AGREEMENT not less than the following coverage and limits of insurance, which shall be maintained with insurers and under forms of policy satisfactory to the CITY. The maintenance by DB Firm and its contractors and subcontractors of the following coverage and limits of insurance is a material element of this AGREEMENT. The failure of DB Firm or of any of its contractors or subcontractors to maintain or renew coverage or to provide evidence of renewal may be treated by the CITY as a material breach of this AGREEMENT. Approval of the insurance by the CITY shall not relieve or decrease any liability of DB Firm.
1. Commercial General Liability Insurance
a. DB Firm shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office from CG 00 01 (or equivalent), in an amount not less than TWO MILLION DOLLARS ($2,000,000) per occurrence and FOUR MILLION DOLLARS ($4,000,000) minimum limit for the PreConstruction Phase and FIFTEEN MILLION DOLLARS ($15,000,000) per occurrence and THIRTY MILLION DOLLARS ($30,000,000) minimum limit for the Construction Phase for general aggregate for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this PROJECT/location or the general aggregate limit shall be twice the required occurrence limit. DB Firms general liability policies shall be primary and shall not seek contribution from the CITYs coverage, and be endorsed using Insurance Services Office from CG 20 10 (or equivalent) to provide that CITY and its officers, officials, employees, and agents shall be additional insureds under such policies. For construction Projects, an endorsement providing completed operations coverage for the additional insured. ISO form CG 20 37 (or equivalent), is also required.
b. Any failure to comply with reporting provisions of the policies by DB Firm shall not affect coverage provided the CITY. c. Coverage shall state that DB Firm insurance shall apply separately to each insured against whom claim is made or suit is brought, expect with respect to the limits of the insurers liability.
Progressive Design-Build Agreement for Services
14 d. Coverage shall contain a waiver of subrogation in favor of the CITY.
2. Automobile Liability. If the vehicles are brought onto CITY facilities, DB Firm shall maintain automobile liability with limits no less than ONE MILLION DOLLARS ($1,000,000) minimum limit per accident for bodily injury and property damage.
3. Workers Compensation and Employers Liability. DB Firm shall maintain Workers Compensation Insurance and Employers Liability Insurance with limits of at least FIVE MILLION DOLLARS ($5,000,000). DB Firm shall submit to CITY, along with the certificate of insurance, a waiver of subrogation endorsement in favor of CITY, its officers, agents, employees, and volunteers. DB Firm shall sign the Certificate of Compliance with Labor Code 3700 (EXHIBIT C).
4. Professional Liability. DB Firm shall maintain professional liability insurance that insures against professional errors and omissions that may be made in performing the Services to be rendered in connection with this AGREEMENT, in the minimum amount of ONE MILLION DOLLARS ($1,000,000) per occurrence or claim and TWO MILLION DOLLARS ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this AGREEMENT, and DB Firm agrees to maintain continuous coverage through a period no less than three (3) years after completion of the services required by this AGREEMENT.
5. All Coverages.
a. Each insurance policy required by this AGREEMENT shall be endorsed to state that coverage shall not be suspended, voided, canceled, or reduced in limits except after thirty (30) days prior written notice has been given to the CITY. b. All self-insurance, self-insured retentions, and deductibles must be declared and approved by the CITY.
c. Evidence of Insurance Prior to commencement of WORK, the DB Firm shall furnish to the CITY certificates, additional insured endorsements, and waivers of subrogation evidencing compliance with the insurance requirements above.
The DB Firm must agree to provide complete, certified copies of all required insurance policies when requested by the CITY.
d. Acceptability of Insurers Insurance shall be placed with insurers admitted in the State of California and with an A.M. Best rating of A Class VII or higher.
e. Subcontractors and DB Firms A category of risk and the applicable insurance requirements will be determined on a per subcontractor or per DB Firm basis, considering the particular WORK to be done by the subcontractor or DB Firm and the interrelationship of that WORK to other WORK being conducted by the DB Firm.
Progressive Design-Build Agreement for Services
15 6. No other provision of this AGREMENT or any attachment thereto shall reduce the insurance or indemnity obligations imposed under this Section.
C. In addition to any other remedy the CITY may have, if DB Firm fails to maintain the insurance coverage as required in this Section, the CITY may obtain such insurance coverage that is not being maintained, in the form and amount substantially the same as is required herein, and the CITY may deduct the cost of such insurance from any amounts due or which may become due to DB Firm under this AGREEMENT.
D. No policy required by this AGREEMENT shall be suspended, cancelled, terminated by either party, or reduced in coverage or in limits unless written approval is obtained by DB Firm from the CITY.
E. Any deductibles or self-insured retentions in excess of TEN THOUSAND DOLLARS ($10,000) must be declared to, and approved by, the CITY.
F. The requirement as to types, limits, and the CITYs approval of insurance coverage to be maintained by DB Firm are not intended to, and shall not in any manner, limit or qualify the liabilities and obligations assumed by DB Firm under the AGREEMENT.
17. MISCELLANEOUS PROVISIONS:
A. Compliance with Laws. DB Firm shall keep itself fully informed of, shall observe and comply with, and shall cause any and all persons, firms or corporations employed by it or under its control to observe and comply with, applicable federal, state, county and municipal laws, ordinances, regulations, orders and decrees which in any manner affect those engaged or employed on the work described by this AGREEMENT or the materials used or which in any way affect the conduct of the work.
B. Unlawful Acts. DB Firm shall not engage in unlawful employment discrimination. Such unlawful employment discrimination includes, but is not limited to, employment discrimination based upon a persons race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, gender, citizenship, or sexual orientation.
C. Record Retention. DB Firm shall maintain and make available for inspection by the CITY and its auditors accurate records of all of its costs, disbursements and receipts with respect to any work under this AGREEMENT. Such inspections may be made during regular office hours at any time until six (6) months after the final payments under this AGREEMENT are made to the DB Firm.
D. Notice. All notices that are required to be given by one party to the other under this AGREEMENT shall be in writing and shall be deemed to have been given if delivered personally or enclosed in a properly addressed envelope and deposited in a United States Post Office for delivery by registered or certified mail addressed to the parties at the following addresses:
CITY: DB Firm:
Progressive Design-Build Agreement for Services
16 Somporn Boonsalat
Deputy Director of Engineering
City of Manteca
1001 W. Center St.
Manteca, CA 95337
Garth McCann
Senior Vice President of Pre-Construction and Risk
Willdan Energy Solutions
1800 Wazee Street, Suite 315
Denver, CO 80202
(970) 217-0773
[email protected]
E. Governing Law and Venue. This AGREEMENT shall be interpreted and governed by the laws of the State of California, and any legal action relating to this AGREEMENT shall take place in the Superior Court, County of San Joaquin.
F. Waiver. Waiver of any breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach or default of the same or any other provision under this AGREEMENT.
G. Severability. If any provision of this AGREEMENT is held to be invalid, illegal or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this AGREEMENT shall continue in full force and effect.
H. Mediation. In the event of any controversy or claim arising out of or relating to this Agreement or the Services provided by DB Firm (each referred to as a Dispute and all collectively referred to as the Disputes), the Parties shall try to resolve all Disputes through good faith, direct discussions involving the representatives of each Party who possess the necessary authority to resolve such Dispute. If direct discussions are unsuccessful in resolving a Dispute, the Parties shall endeavor to resolve the matter by mediation through and administered by JAMS or its successor in interest. JAMS shall provide the parties with the name of five (5) qualified mediators. Each party shall have the option to strike two of the five mediators selected by JAMS, and thereafter the mediator remaining shall hear the dispute. If the dispute remains unresolved after mediation, either party may commence litigation.
I. Costs and Attorney' Fees. If either party commences any legal action against the other party arising out of this Agreement or the performance thereof, the prevailing party in such action may recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys' fees.
J. Entire Agreement. This AGREEMENT constitutes the entire agreement between the parties relative to the services specified herein and no modification hereof shall be effective unless and until such modification is evidenced by a writing signed by both parties to this AGREEMENT. There are no understandings, agreements, conditions, representations, warranties or promises, with respect to this AGREEMENT, except those contained in or referred to in writing.
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17 K. Execution. This AGREEMENT may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy has been signed by both parties.
L. Authority to Enter Agreement. DB Firm warrants that it has all requisite power and authority to conduct its business and to execute, deliver, and perform this AGREEMENT. Each party warrants to the other that the signature to this AGREEMENT have the legal power, right, and authority to enter into this AGREEMENT and to bind each party.
M. California Prevailing Wage Requirement. Pursuant to California Labor Code sections 1720 through 1861, the DB Firm, its Contractor and all subcontractors shall ensure that all workers who perform work under this Agreement are paid not less than the prevailing rate of per diem wages as determined by the Director of the California Department of Industrial Relations (DIR), if applicable. This includes work performed during the design, site assessment, feasibility study, and other preconstruction phases of construction, including but not limited to inspection and land surveying work, regardless of whether any further construction work is conducted, and work performed during the post-construction phases of construction, including but not limited to all cleanup work at the jobsite. The most current prevailing wage determination can be found at https://www.dir.ca.gov/OPRL/DPreWageDetermination.htm.
N. CITYs Expectations. The following is a list of the CITYs expectations shall be incorporated into the DB Firms contract:
1. Understand the WORK as designed or know where to research the documents for information.
2. Respond to all of the CITYs questions no matter how small they may seem.
3. Talk with the CITY about the planned design and what goals are going to be achieved. Follow up on any outstanding issues, inquiries from the CITY, etc.
4. Think ahead of possible utility conflicts.
5. Observe the field conditions and discuss with CITY any discrepancies.
6. Maintain a professional appearance during all meetings including inperson meetings and virtual meetings. This includes an understanding of virtual meeting software, in addition to, the use of a professional background, use of adequate equipment including camera, laptop, lighting, microphone, etc.
7. When issues arise, work with all parties to come-up with a solution and take a position that provides the greatest benefit to the CITY.
Progressive Design-Build Agreement for Services
18 8. Review initial draft of the progress billing request prior to submittal to CITYs Project manager.
9. Return all phone calls from CITY PROJECT management staff on the same business day.
10. Provide CITY with all known scheduled time off during the PROJECT duration. Review time off impacts to PROJECT and PROJECT coverage with CITY at least one weeks in advance, or as soon as practicable.
11. No proprietary software shall be used in conjunction with this PROJECT.
O. DB Firms Representations. DB Firm shall be deemed to have made the following representations with its submission of the GMP Proposal:
1. DB Firm has examined, carefully studied, and thoroughly understands the AGREEMENT DOCUMENTS and the Reference Documents
associated with the WORK.
2. DB Firm has visited the Site and is familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the WORK.
3. DB Firm is familiar with and is satisfied as to all laws and regulations that may affect cost, progress, and performance of the WORK.
4. DB Firm is aware of the general nature of WORK to be performed by CITY and others at the Site that relates to the WORK as indicated in the AGREEMENT DOCUMENTS.
5. DB Firm has correlated the AGREEMENT DOCUMENTS with the information known to DB Firm, information and observations obtained from visits to the Site, reports and drawings identified in the AGREEMENT DOCUMENTS, and all additional examinations, investigations, explorations, tests, studies and data.
6. DB Firm has given CITY written notice of all conflicts, errors, ambiguities or discrepancies that DB Firm has discovered in the AGREEMENT DOCUMENTS before submitting a GMP Proposal and the written resolution thereof by CITY is acceptable to DB Firm.
7. The AGREEMENT DOCUMENTS are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the WORK.
8. DB Firm shall be bound by and shall perform its obligations in full compliance with the AGREEMENT DOCUMENTS.
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19 9. DB Firm shall be liable for its actions, including its negligence or gross negligence, and shall be liable for the acts, omissions, or errors of its agents or employees.
10. DB Firm shall perform its obligations under this AGREEMENT using its best professional skill and judgment, acting with due care and in accordance with the standard of care applicable to the WORK and Services to be provided by DB Firm, the covenants, terms and conditions of this AGREEMENT, and all applicable laws, codes, rules and regulations of the State of California and all other federal, state, and local jurisdictions having authority. DB Firm represents and warrants that it is fully experienced in Projects of the nature and scope of WORK, and that it is properly qualified, licensed and equipped to supply and perform the WORK. The WORK completed herein must meet the approval of CITY and shall be subject to CITYs general right of inspection and supervision to secure the satisfactory completion thereof.
11. DB Firm agrees that all technologies, formulae, procedures, processes, methods, writings, ideas, dialogue, compositions, recordings, teleplays and video productions prepared for, written for, or submitted to CITY and/or used in connection with this AGREEMENT, shall either be the property of DB Firm, or DB Firm shall have all necessary rights to use such formulae, procedures, processes, methods, writings, ideas, dialogue, compositions, recordings, teleplays and video productions and to provide the same and derivative works thereof to CITY in connection with this AGREEMENT, and shall not otherwise be copied in whole or in part from any other source.
12. Except with respect to design pre-check documents and associated works and other third party intellectual property used by DB Firm on an authorized basis, all drawings, specifications, calculations, data, notes and other materials and documents, including electronic data (other than system performance data provided during operation, which shall not be deemed WORK PRODUCT) furnished by DB Firm to CITY under this AGREEMENT (WORK PRODUCT) shall be and remain the property of CITY. DB Firm, or the author of such works, if other than DB Firm, will retain all common law, statutory and other reserved rights, including copyrights in the WORK PRODUCT. Upon Final Completion, DB Firm will grant CITY, and its successors and assigns, a perpetual, non-transferable royalty-free license to use the WORK PRODUCT (excluding commercially provided hardware and software) for the purposes of repair, maintenance, renovation, modernization, and all other purposes related to the PROJECT, including, without limitation, additions, alignments, or other development on the Site. CITYs use of such WORK PRODUCT without the involvement of the DB Firm shall be at CITYs sole risk and without liability or legal exposure to the DB Firm or anyone working by or through DB Firm. CITY understands that the use of commercially provided hardware and software may require the CITY to pay annual fees for such use. If the DB Firm Progressive Design-Build Agreement for Services
20 purchases a license for any commercial provided hardware or software as part of the WORK, DB Firm shall transfer such license to the CITY upon final completion.
P. P. Defined Terms. Terms used in this AGREEMENT and not defined herein shall have the meanings indicated in the GENERAL CONDITIONS (EXHIBIT D).
Q. Exhibits. The following exhibits (Exhibits) are specifically made part of, and incorporated by reference into, this AGREEMENT:
Exhibit A DB Firm Proposal/Scope of Work Pre-Construction Phase Services
Exhibit B Fee Schedule
Exhibit C Certificate of Compliance with Labor Code § 3700 Exhibit D General Conditions
Exhibit E Supplementary General Conditions
Exhibit F CA Government Code Section 14310 Questionnaire Exhibit G Equal Employment Opportunity Certification
Exhibit H Public Contract Code Section 10285.1 Certification Exhibit I Public Contract Code Section 10232 Certification Exhibit J Debarment and Suspension Certification
Exhibit K Local Business Enterprise
Exhibit L Non Lobbying Certification
Exhibit M Site Visit Affidavit
Exhibit N Acknowledgement of Insurance Requirements
Exhibit O Non-Collusion Affidavit
Exhibit P DIR Compliance Affidavit
Exhibit Q Statement Acknowledging Penal and Civil Penalties Concerning The Contractors Licensing Laws
Exhibit R Faithful Performance Bond
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21 Exhibit S Payment Bond
Exhibit T Warranty Bond
Exhibit U Workers Compensation Insurance
Exhibit V Insurance and Indemnification Documents
Exhibit W Project Conceptual Design Package
Exhibit X City of Manteca Conflict of Interest Policy Exhibit Y DB Firm Conflict of Interest Statement
Exhibit Z Savings Measurement & Calculation Formulae
Exhibit A-A Baseline Energy Consumption
R. Order of Precedence of the AGREEMENT DOCUMENTS. Notwithstanding anything in Paragraph 1(A) of this AGREEMENT, the following order of precedence shall apply in the case of direct, irresolvable conflicts between or among AGREEMENT DOCUMENTS:
1. Work Change Directives, Change Orders, and Field Orders with those of a later date taking precedence;
2. Written amendments signed by the Parties with those of a later date taking precedence;
3. This AGREEMENT, including all Exhibits;
4. The Final Drawings and Specifications;
5. Procurement Solicitation Documents (Notice Inviting Bids, Information to Bidders, Request for Qualifications, Request for Proposals, etc.)
6. Any provisions required by law or applicable regulations, whether inserted or not
7. Appendices (photographs, data contained in reports, and other information)
The singular includes the plural; the masculine, feminine, and neuter genders shall each be deemed to include the others; shall, will, or agrees are mandatory; may is permissive; or is not exclusive; include, includes and including are not limiting and shall be construed as if followed by the words without limitation; and days means Progressive Design-Build Agreement for Services
22 calendar days unless specifically provided otherwise if there is more than one signer of this AGREEMENT, the signer obligations are joint and several. The failure to capitalize a defined term shall not automatically revert that term to its commonly accepted definition outside of this AGREEMENT (i.e., dictionary definition).
S. AGREEMENT Interpretation. Additionally, the following interpretation principles shall apply to this AGREEMENT:
1. Written numbers over figures, unless obviously incorrect.
2. Figured dimensions over scaled dimensions.
3. Large-scale drawings over small-scale drawings.
4. Any conflict between a bill or list of materials shown in the AGREEMENT DOCUMENTS and the actual quantities required to complete the WORK required by AGREEMENT DOCUMENTS, will be resolved in favor of the actual quantities, date (i.e., the most recent document), and if the dates are the same or not determinable, then in favor of Specifications.
THIS SPACE INTENTIONALLY LEFT BLANK
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23 TO EFFECTUATE THIS AGREEMENT, each of the parties has caused this Agreement to be executed by its duly authorized representative as of the date set forth in the introductory paragraph on page 1 above.
CITY OF MANTECA: DB Firm:
WILLDAN ENERGY SOLUTIONS ______________________________ ________________________________ Toni Lundgren (Type name of DB Firm/form of organization)* City Manager
ATTEST: By: ________________________________
(Signature) ______________________________ ________________________________ Cassandra Candini-Tilton, (Type name and title) Director of Legislative Services
COUNTERSIGNED: By: ________________________________
(Signature) ______________________________ ________________________________ Matt Boring (Type name and title) Director of Finance
COUNTERSIGNED: Address: 1800 WAZEE STREET
SUITE 315 ______________________________ Stephanie Van Steyn, Director of Human Resources
DENVOR CO, 80202
Telephone: (970) 217-0773 APPROVED AS TO FORM:
Andy Pinasco, Interim City Attorney
By:_________________________________
Kousha Mckeenejad, Deputy City Attorney
0,30)}}
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24 EXHIBIT A
DB Firm Proposal/Scope of Work
Pre-Construction Phase Services
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25 EXHIBIT B
Fee Schedule
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26 EXHIBIT C
CERTIFICATE OF COMPLIANCE WITH LABOR CODE § 3700
[Labor Code § 1861]
I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this AGREEMENT.
DB Firm
By:
SVP
Progressive Design-Build Agreement for Services
27 EXHIBIT D
General Conditions
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28 EXHIBIT E
Supplementary General Conditions
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29 EXHIBIT F
CA Government Code Section 14310 Questionnaire
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30 EXHIBIT G
Equal Employment Opportunity Certification
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31 EXHIBIT H
Public Contract Code Section 10285.1 Certification
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32 EXHIBIT I
Public Contract Code Section 10232 Certification
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33 EXHIBIT J
Debarment and Suspension Certification
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34 EXHIBIT K
Local Business Enterprise
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35 EXHIBIT L
Non-Lobbying Certification
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36 EXHIBIT M
Site Visit Affidavit
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37 EXHIBIT N
Acknowledgement of Insurance Requirements
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38 EXHIBIT O
Non-Collusion Affidavit
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39 EXHIBIT P
DIR Compliance Affidavit
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40 EXHIBIT Q
Statement Acknowledging Penal and Civil Penalties Concerning The Contractors Licensing Laws
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41 EXHIBIT R
Faithful Performance Bond
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42 EXHIBIT S
Payment Bond
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43 EXHIBIT T
Warranty Bond
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44 EXHIBIT U
Workers Compensation Insurance
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45 EXHIBIT V
Insurance and Indemnification Documents
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46 EXHIBIT W
Project Conceptual Design Package
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47 EXHIBIT X
City of Manteca Conflict of Interest Policy
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48 EXHIBIT Y
DB Firm Conflict of Interest Statement
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49 EXHIBIT Z
Savings Measurement & Calculation Formulae
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50 EXHIBIT A-A
Baseline of Energy Consumption