HomeMy WebLinkAbout10-4-27 Newport Beach Civic Center Project - CW DriverCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 23
April 27, 2010
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Stephen Badum
sbadum@newportbeachca.gov
949 - 644 -3311
SUBJECT: NEWPORT BEACH CIVIC CENTER PROJECT —APPROVAL OF
PROFESSIONAL SERVICES AGREEMENT FOR PROJECT
MANAGEMENT & CONSTRUCTION MANAGEMENT AT RISK
CONTRACT WITH C.W. DRIVER
RECOMMENDATIONS:
1) Approve a Professional Services Agreement with C.W. Driver, Irvine, California, for
the project management during Construction Document preparation at a not to
exceed price of $2,305,933 and authorize the Mayor and City Clerk to execute the
Agreement.
2) Approve a Construction Manager At Risk Contract with C.W. Driver, Irvine,
California, for the Construction Management at Risk at a not to exceed price of
$14,617,374 and authorize the Mayor and City Clerk to execute the Contract.
3) Establish a budget of 10% of the Mass Excavation & Shoring construction cost
($673,000) as the City's contingency for unforeseen costs and authorize the Public
Works Director and City Manager execute change orders upon concurrence by the
City Council Building Committee
4) Approve Budget Amendment No. BA10- appropriating $17,596,307 from the
Major Facilities Master Plan Fund to Newport Beach Civic Center Project Account
No. 7410- C1002009.
DISCUSSION:
Project Management
On January 13, 2009, City Council selected C.W. Driver as the program manager for
the Newport Beach Civic Center Project. Since that selection, C.W. Driver has
successfully managed the Conceptual Design, Schematic Design, and Design
Development phases of the Civic Center project. The next step in advancing the
project is the management of the construction document phase of design which will
include plans and specifications for the various bid packages to construct the Civic
Center project.
Newport Beach Civic Center Project — Approval of Professional Services Agreement for Project Management & Construction
Management at Risk Contract with C.W. Driver
April 27, 2010
Page 2
The proposed scope of work includes project management and administration services,
including design management and coordination services for the project from the
production of construction documents through the issuance of a building permit. Work
scope in this phase includes:
• Coordinate and manage the City's design team in its delivery of the final
construction documents and bid packages
• Develop budgets and or cost estimates and recommend design modifications as
necessary utilizing Value Engineering principles to seek to keep at or below the
construction budget established for the Project
• Provide periodic design and constructability reviews.
• Develop and maintain overall Project schedules and manage the Project to
ensure that timeframes for deliverables and processes prior to construction are
met
• Manage the LEED certification process
• Manage appropriate furniture, fixture and equipment bidding /procurement
process
• Assure incorporation (and respond to) all Building Official and other permitting
agency comments as appropriate, and facilitate the permitting process
• Secure City issued building permits and all other jurisdictional permits required to
construct the Project
• Pre - qualify Subcontractors and vendors in advance of the bidding process
The proposed fee for program management services for construction document phase
is at a cost not to exceed $2,305,933 on a time and materials basis per the attached
proposal and hourly rates.
Construction Manager at Risk
In an effort to expedite the project, the City has elected to start the early phases of the
project such as grading and the construction of the parking structure in advance of the
final design completion of the parks, City Hall building, and Central Library Expansion.
To accomplish this goal it will be necessary to enter into a phased Construction
Manager at Risk (CM @R) contract. City staff has negotiated a CM @R contract with
C.W. Driver. The contract is broken down into four components.
The first component is the basic services or general conditions. These include the fixed
costs for the construction field office (including construction trailers, office equipment,
portable restrooms, copiers, computers, telephone and equipment) and the necessary
personnel to staff the project (including superintendent, inspection and support staff).
The work scope included in basic services includes:
• Managing the public bidding and award process in full compliance with the
California Public Contract Code
Newport Beach Civic Center Project — Approval of Professional Services Agreement for Project Management & Construction
Management at Risk Contract with C.W. Driver
April 27, 2010
Page 3
• Providing full and complete construction administration, coordination and
construction observation services during and following construction, including
but not limited to the following:
❖ Onsite administration and management
Project and construction cost management
❖ Quality assurance, inspection, and quality control
❖ Coordinate with the City's Building Inspectors
Dispute resolution
Submittal coordination
❖ Management of Requests for Information (RFI)
❖ Change order review and negotiations
❖ Manage construction materials testing, and specialty inspection services
❖ Provide schedule analysis and continuous updates
❖ Manage project close -out, including assuring the A &E team provides
complete record (As- Built) drawings
❖ Construction punch -list management and completion
•3 Manage substantial and final completion processes, and project acceptance.
❖ Compile program warranties
❖ Deliver operations and maintenance manuals
❖ Coordinate the installation of FF &E and move in activities
❖ Manage final payment and project closeout for all consultants and contractors
under direct contract with the City
❖ Coordinate warranty work for a period of up to one year
The Basic Services based upon the current project schedule for the entire project are
estimated at a not to exceed cost of $7,169,255. Basic Services will be billed monthly
on a time and material basis at the agreed rates as shown on Exhibit A of the CM @R
contract.
The second component of this contract is the actual cost of the construction work. The
cost of the work will be set as a Guaranteed Maximum Price (GMP). The GMP will
include the actual bid plus a contingency. Under the CM @R project delivery method,
C.W. Driver will bid out the various construction trade contracts in accordance with the
Public Contract Code and oversight from the City Clerk. The City Council will then
approve the expenditure and accept C.W. Driver's GMP proposal for the work. C.W.
Driver will then be responsible for delivering all work and construction included in the
approved work scope for the maximum cost stated in the GMP. Any costs exceeding
the GMP will be borne by C.W. Driver. Any savings under the GMP will be shared by
the City and C.W. Driver. The City will receive 75% of any savings and C.W. Driver will
receive 25% of any savings as an incentive to reduce overall costs.
As stated above, the City has implemented a phased project so that the grading and
parking structure construction can begin in advance of the final design completion for
the City Hall, Library and park components of the project. The first phase will be the
Mass Excavation and Shoring Construction Phase. This phase includes the excavation,
grading, and export of approximately 200,000 cubic yards of earth; the construction of a
shoring wall to provide for the construction of the parking structure; and the construction
Newport Beach Civic Center Project — Approval of Professional Services Agreement for Project Management & Construction
Management at Risk Contract with C.W. Driver
April 27, 2010
Page 4
of various retaining walls to facilitate grading within the North park portion of the project.
On April 13, 2010, the City Clerk oversaw the public opening of the sealed bids for this
phase of the work and a summary of those bids is attached for Council review. Upon
verifying the bids, C.W. Driver compiled the GMP based upon the lowest responsible
bids. The GMP for this work including a contingency of 8% is $6,726,574. A breakdown
of the project components are listed in exhibit A. Subsequent GMP phases will include
a second phase for the Parking Structure construction and a final phase City Hall,
Library Expansion, and Park Improvements.
The third component is the Direct Expenses which include the direct costs for bond
premiums; field office expenses such as equipment and supplies; general liability
insurance; and additional services as requested by the City. Direct expenses will
include known costs and allowances for variable items. The Direct Expenses for the
Mass Excavation and Shoring Construction phase total $265,412 including general
liability insurance cost of $126,453 and an allowance for bonds and expenses at
$138,959.
The fourth component is the Project fees for managing the construction. These
construction management fees represent the markup, overhead, and profit. The Basic
Services, Direct Expenses, and GMP represent actual costs without any markups,
overhead or profit. The rate for the construction management fee is set at 3.25 % for
the entire project. The construction management fee for this phase of work is calculated
at $456,133.
The total cost of the proposed Construction Manager at Risk contract is $14,617,374
including the Mass Excavation and shoring construction phase GMP. To provide for
potential unforeseen costs, staff recommends that a budget of $673,000 (10% of the
Mass Excavation) be established. Unforeseen costs may typically include delay and
recovery costs should we discover significant archeological artifacts on the project site,
changed geologic conditions, and delays due to environmental or weather conditions.
Staff also proposes that any adjustments to the CM @R contract compensation be
authorized by the Public Works Director and City Manager with concurrence by the City
Council Building Committee.
Construction Manager at Risk Costs
Amount
Basic Services
$ 7,169,255
Mass Excavation and Shoring Construction GMP (including 8% contingency)
6,726,574
Direct Expenses
265,412
Construction Management Fee
456,133
Subtotal
14,617,374
City's Contingency (10 %)
673,000
Total
$15,290,374
Environmental Review:
Newport Beach Civic Center Project —Approval of Professional Services Agreement for Project Management & Construction
Management at Risk Contract with C.W. Driver
April 27, 2010
Page 5
Project Management and CM @R services are not projects as defined in the California
Environmental Quality Act (CEQA) Implementing Guidelines.
Funding Availability:
With the approval of the recommended Budget Amendment in the amount of
$17,596,307 sufficient funds are available in the following account:
Account Description
Newport Beach Civic Center
Submitted by:
C�r2L�
Account Number Amount
7410- C1002009 $ 17,596,307
AttacyFdents: PSA with C.W. Driver, including work scope, schedule and fee exhibits
CM @R contract with C.W. Driver— GMP Breakdown
Budget Amendment
PROFESSIONAL SERVICES AGREEMENT WITH
C.W. DRIVER FOR
CITY CIVIC CENTER AND PARK
THIS AGREEMENT is made and entered into as of this day of
2010, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation
( "City "), and C.W. DRIVER a California Corporation whose address is 15615 Alton
Parkway, Suite 150, Irvine, California, 92618 ( "Consultant "), and is made with
reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now
being conducted under the statutes of the State of California and the Charter of
City.
B. City is planning to design and construct a new City Civic Center and Park.
C. City desires to engage Consultant to provide program management services
through the Construction Document Design Phase and Construction Phase of
the new City Civic Center and Park Project ( "Project ").
D. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal member of Consultant for purposes of Project, shall be Bruce
Curry.
F. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on the 31St day of December, 2012, unless terminated earlier as set forth
herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference. The
City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
3. TIME OF PERFORMANCE
Time is of the essence in the performance of services under this Agreement and
Consultant shall perform the services in accordance with the schedule included
in Exhibit A. The failure by Consultant to strictly adhere to the schedule may
result in termination of this Agreement by City.
Notwithstanding the foregoing, Consultant shall not be responsible for delays
due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the services to be provided for the Project, each party hereby
agrees to provide notice to the other party so that all delays can be addressed.
3.1 Consultant shall submit all requests for extensions of time for
performance in writing to the Project Administrator not later than ten (10)
calendar days after the .start of the condition that purportedly causes a
delay. The Project Administrator shall review all such requests and may
grant reasonable time extensions for unforeseeable delays that are
beyond Consultant's control.
3.2 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the
circumstances, by either telephone, fax, hand - delivery or mail.
4. COMPENSATION TO CONSULTANT
City shall pay Consultant for the services on a time and expense not -to- exceed
basis in accordance with the provisions of this Section and the Schedule of
Billing Rates attached hereto as Exhibit B and incorporated herein by reference.
Consultant's compensation for all work performed in accordance with this
Agreement, including all reimbursable items and subconsultant fees, shall not
exceed Two Million, Three Hundred Five Thousand, Five Hundred Eighteen
Dollars and no /100 ($2,305,518.00) without prior written authorization from City.
No billing rate changes shall be made during the term of this Agreement without
the prior written approval of City.
4.1 Consultant shall submit monthly invoices to City describing the work
performed the preceding month. Consultant's bills shall include the name
of the person who performed the work, a brief description of the services
performed and /or the specific task in the Scope of Services to which it
relates, the date the services were performed, the number of hours spent
on all work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Consultant no later than thirty
(30) days after approval of the monthly invoice by City staff.
4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing
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5.
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in advance by City. Unless otherwise approved, such costs shall be
limited and include nothing more than the following costs incurred by
Consultant:
A. The actual costs of subconsultants for performance of any of the
services that Consultant agrees to render pursuant to this
Agreement, which have been approved in advance by City and
awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and /or payments specifically
authorized in advance in writing and incurred by Consultant in the
performance of this Agreement.
4.3 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra
Work" means any work that is determined by City to be necessary for the
proper completion of the Project, but which is not included within the
Scope of Services and which the parties did not reasonably anticipate
would be necessary at the execution of this Agreement. Compensation
for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
PROJECT MANAGER
Consultant shall designate a Project Manager, who shall coordinate all phases of
the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated BRUCE CURRY
to be its Project Manager. Consultant shall not remove or reassign the Project
Manager or any personnel listed in Exhibit A or assign any new or replacement
personnel to the Project without the prior written consent of City. City's approval
shall not be unreasonably withheld with respect to the removal or assignment of
non -key personnel.
Consultant, at the sole discretion of City, shall remove from the Project any of its
personnel assigned to the performance of services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
ADMINISTRATION
This Agreement will be administered by the Public Works Department.
STEPHEN BADUM shall be the Project Administrator_ and shall have the
authority to act for City under this Agreement. The Project Administrator or his
authorized representative shall represent City in all matters pertaining to the
services to be rendered pursuant to this Agreement.
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7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. Provide access to, and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such
materials in a timely manner so as not to cause delays in Consultant's
work schedule.
B. Provide blueprinting and other services through City's reproduction
company for bid documents. Consultant will be required to coordinate the
required bid documents with City's reproduction company. All other
reproduction will be the responsibility of Consultant and as defined above.
C. Provide usable life of facilities criteria and information with regards to new
facilities or facilities to be rehabilitated.
8.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner
commensurate with community professional standards. All services shall
be performed by qualified and experienced personnel who are not
employed by City, nor have any contractual relationship with City. By
delivery of completed work, Consultant certifies that the work conforms to
the requirements of this Agreement and all applicable federal, state and
local laws and the professional standard of care.
8.2 Consultant represents and warrants to City that it has, shall obtain, and
shall keep in full force in effect during the term hereof, at its sole cost and
expense, all licenses, permits, qualifications, insurance and approvals of
whatsoever nature that is legally required of Consultant to practice its
profession. Consultant shall maintain a City of Newport Beach business
license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Consultant's
work promptly, or _delay or faulty performance by City, contractors, or
governmental agencies.
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9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties) from and
against any and all claims (including, without limitation, claims for bodily injury,
death or damage to property), demands, obligations, damages, actions, causes
of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including, without limitation, attorney's fees, disbursements and court
costs) of every kind and nature whatsoever (individually, a Claim; collectively,
"Claims "), which may arise from or in any manner relate (directly or indirectly) to
the negligence, recklessness, or willful misconduct of the Consultant or its
principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for
whose acts they may be liable or any or all of them.
Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence, active negligence or willful misconduct of the Indemnified
Parties. Nothing in this indemnity shall be construed as authorizing any award of
attorney's fees in any action on or to enforce the terms of this Agreement. This
indemnity shall apply to all claims and liability regardless of whether any
insurance policies are applicable. The policy limits do not act as a limitation
upon the amount of indemnification to be provided by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the work are under the control of Consultant, except to the extent
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. Nothing in this Agreement shall be deemed to constitute approval
for Consultant or any of Consultant's employees or agents, to be the agents or
employees of City. Consultant shall have the responsibility for and control over
the means of performing the work, provided that Consultant is in compliance with
the terms of this Agreement. Anything in this Agreement that may appear to give
City the right to direct Consultant as to the details of the performance or to
exercise a measure of control over Consultant shall mean only that Consultant
shall follow the desires of City with respect to the results of the services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or
interest in the work to be performed. City agrees to cooperate with the
Consultant on the Project.
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12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points
in order to ensure the Project proceeds in a manner consistent with City goals
and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator and /or his /her
duly authorized designee informed on a regular basis regarding the status and
progress of the Project, activities performed and planned, and any meetings that
have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of work, Consultant shall obtain, provide and maintain at its own expense during
the term of this Agreement, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of
insurance with original endorsements to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by
City's Risk Manager prior to commencement of performance or issuance
of any permit. Current certification of insurance shall be kept on file with
City at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner
to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A (or higher) and Financial Size
Category Class VII (or larger) in accordance with the latest edition of
Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
D. Coverage Requirements.
i. Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance and Employer's Liability
Insurance for his or her employees in accordance with the laws of
the State of California. In addition, Consultant shall require each
subcontractor to similarly maintain Workers' Compensation
Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractor's
employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) calendar days (10 calendar days written notice of non-
payment of premium) prior to such change. The insurer shall agree
to waive all rights of subrogation against City, its officers, agents,
employees and volunteers for losses arising from work performed
by Consultant for City.
ii. General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million
dollars ($1,000,000) per occurrence for - bodily injury, personal
injury, and property damage, including without limitation,
contractual liability. If commercial general liability insurance or
other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed
under this Agreement, or the general aggregate limit shall be at
least twice the required occurrence limit.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the Consultant arising out of or in connection with
work to be performed under this Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not
less than one million dollars ($1,000,000) combined single limit for
each occurrence.
iv. Professional Errors and Omissions Insurance. Consultant shall
maintain professional errors and omissions insurance, which
covers the services to be performed in connection with this
Agreement in the minimum amount of one million dollars
($1,000,000).
E. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
i. The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
respect to liability arising out of work performed by or on behalf of
the Consultant.
ii. This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from the Consultant's operations or services
provided to City. Any insurance maintained by City, including any
self- insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided
hereunder.
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iii. This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected
or appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
vi. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either
party except after thirty (30) calendar days (10 calendar days
written notice of non - payment of premium) written notice has been
received by City.
F. Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claim made or suit instituted arising out of or resulting from
Consultant's performance under this Agreement.
G. Additional Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following
shall be construed as an assignment: The sale, assignment, transfer or other
disposition of any of the issued and outstanding capital stock of Consultant, or of
the interest of any general partner or joint venturer or syndicate member or
cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy,
which shall result in changing the control of Consultant. Control means fifty
percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more
of the assets of the corporation, partnership or joint-venture.
16. SUBCONTRACTING
City and Consultant agree that subconsultants may be used to complete the
work outlined in the Scope of Services. The subconsultants authorized by City to
perform work on this Project are identified in Exhibit A. Consultant shall be fully
responsible to City for all acts and omissions of the subcontractor. Nothing in
this Agreement shall create any contractual relationship between City and
subcontractor nor shall it create any obligation on the part of City to pay or to see
to the payment of any monies due to any such subcontractor other than as
otherwise required by law. The City is an intended beneficiary of any work
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performed by the subcontractor for purposes of establishing a duty of care
between the subcontractor and the City. Except as specifically authorized
herein, the services to be provided under this Agreement shall not be otherwise.
assigned, transferred, contracted or subcontracted out without the prior written
approval of City.
17. OWNERSHIP OF DOCUMENTS
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents'), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and
City shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents to City upon prior written request.
Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for
reuse by City or others on any other project. Any use of completed Documents
for other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to
Consultant's deliverables under this Agreement by City or persons other than
Consultant is waived against Consultant and City assumes full responsibility for
such changes unless City has given Consultant prior notice and has received
from Consultant written consent for such changes.
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless City authorizes in writing the release of information.
19. OPINION OF COST
Any opinion of the construction cost prepared by Consultant represents his/her
judgment as a design professional and is supplied for the general guidance of
City. Since Consultant has no control over the cost of labor and material, or over
competitive bidding or market conditions, Consultant does not guarantee the
accuracy of such opinions as compared to contractor bids or actual cost to City.
20. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers,
representatives and employees against any and all liability, including costs, for
infringement of any United States' letters patent, trademark, or copyright
infringement, including costs, contained in Consultant's drawings and
specifications provided under this Agreement.
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21. RECORDS
Consultant shall keep records and invoices in connection with the work to be
performed under this Agreement. Consultant shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Consultant under this Agreement. All such records and
invoices shall be clearly identifiable. Consultant shall allow a representative of
City to examine, audit and make transcripts or copies of such records and
invoices during regular business hours. Consultant shall allow inspection of all
work, data, Documents, proceedings and activities related to the Agreement for a
period of three (3) years from the date of final payment to Consultant under this
Agreement.
22. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be
deemed to constitute a failure to pay according to the terms of this Agreement.
Consultant shall not discontinue work as a result of such withholding. Consultant
shall have an immediate right to appeal to the City Manager or his /her designee
with respect to such disputed sums. Consultant shall be entitled to receive
interest on any withheld sums at the rate of return that City earned on its
investments during the time period, from the date of withholding of any amounts
found to have been improperly withheld.
23. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Consultant, the additional design, construction and /or
restoration expense shall be borne by Consultant. Nothing in this paragraph is
intended to limit City's rights under the law or any other sections of this
Agreement.
24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
25. CONFLICTS OF INTEREST
The Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such
persons to disclose any financial interest that may foreseeably be materially
affected by the work performed under this Agreement, and (2) prohibits such
In
persons from making, or participating in making, decisions that will foreseeably
financially affect such interest.
If subject to the Act, Consultant shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate
termination of this Agreement by City. Consultant shall indemnify and hold
harmless City for any and all claims for damages resulting from Consultant's
violation of this Section.
26. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, and conclusively shall be deemed served
when delivered personally, or on the third business day after the deposit thereof
in the United States mail, postage prepaid, first -class mail, addressed as
hereinafter provided. All notices, demands, requests or approvals from
Consultant to City shall be addressed to City at:
Attn: Stephen G. Badum
Public Works Department
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 - 644 -3311
Fax: 949- 644 -3318
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Attention: Bruce Curry
C.W. Driver
15615 Alton Parkway, Suite 150
Irvine, CA 92618
Phone: 949- 261 -5100
Fax: 949 - 261 -5167
27. TERMINATION
In the event that either party fails or refuses to perform any of the provisions of
this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not
cured within a period of two (2) calendar days, or if more than two (2) calendar
days are reasonably required to cure the default and the defaulting party fails to
give adequate assurance of due performance within two (2) calendar days after
receipt of written notice of default, specifying the nature of such default and the
steps necessary to cure such default, and thereafter diligently take steps to cure
the default, the non - defaulting party may terminate the Agreement forthwith by
giving to the defaulting party written notice thereof.
11
Notwithstanding the above provisions, City shall have the right, at its sole
discretion and without cause, of terminating this Agreement at any time by giving
seven (7) calendar days prior written notice to Consultant. In the event of
termination under this Section, City shall pay Consultant for services
satisfactorily performed and costs incurred up to the effective date of termination
for which Consultant has not been previously paid. On the effective date of
termination, Consultant shall deliver to City all reports, Documents and other
information developed or accumulated in the performance of this Agreement,
whether in draft or final form.
28. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
In addition, all work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
29. WAIVER
A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
30. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or
nature whatsoever between the parties hereto, and all preliminary negotiations
and agreements of whatsoever kind or nature are merged herein. No verbal
agreement or implied covenant shall be held to vary the provisions herein.
31. CONFLICTS OR INCONSISTENCIES
In the event there are any conflicts or inconsistencies between this Agreement
and the Scope of Services or any other attachments attached hereto, the terms
of this Agreement shall govern.
32. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning
of the language used and shall not be construed for or against either party by
reason of the authorship of the Agreement or any other rule of construction
which might otherwise apply.
12
33. AMENDMENTS
This Agreement may be modified or amended only by a written document
executed by both Consultant and City and approved as to form by the City
Attorney.
34. SEVERABILITY
If any term or portion 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.
35. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be
adjudicated in a court of competent jurisdiction in the County of Orange.
36. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY:
By. vt --4 310
Leonie Mulvihill, �1`0
Acting City Attorney
ATTEST:
CITY OF NEWPORT BEACH,
A Municipal Corporation
0
Keith D. Curry,
Mayor
C.W. DRIVER:
By: By:
Leilani I. Brown, Dana Roberts,
City Clerk President
By:
Bessie Kouvara,
Chief Financial Officer
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
13
EXHIBIT A
C.W. Driver
BUILDERS SINCE 1919
April 19, 2010
Mr. Steve G. Badum
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92658 -8915
Re: Newport Beach Civic Center and Park Project
Program Management Proposal
CD Design and Construction Phases
Dear Steve:
15615 Alton Parkway
Suite 150
Irvine, CA 92618
Fax 949.261.5167
Telephone 949.261.5 100
C. W. Driver is pleased to submit our fee proposal to provide continued Program Management
Services through the Construction Document and Construction Phases of the Newport Beach Civic
Center and Park Project for your consideration. We are excited about this opportunity to continue
to work with the City of Newport Beach and look forward to a very successful project.
Our proposed fee of $2,305,933 is a Not -to- Exceed price for these services through the CD
Design Phase and Construction Phase of the Project as per CWD's attached schedule of services. A
breakdown of these services is as per the following:
PROGRA�"IyMANA GEMENT��€ ,e
Estimating/ Budgeting / Cost Studies
12%
285,903
Value Engineering Effort (All Phases)
5%
111,143
Bid Phase Support
8%
190,258
Post Bid Evaluation and Services
7%
156,928
Constructability Review / Systems Analysis
5%
1 15,920
BIM Manager / 3D Project Modeling
2%
47,520
Operations Preconstruction Services
7%
154,696
Solicit Proposals & Qualifications for Owner Consultants
5%
122,377
RFP's / Selection / Coordination of Owner Consultants
S%
114,870
Management and Coordination of Design Process
9%
209,455
Prequalify Subcontractors and Trade Contractors for Project
13%
290,488
Manage Owner FF &E and Move -in Process
9%
206,960
Manage Project LEED Certification Process
10%
224,000
Project LEAN Consultant
3%
75,000
TOTAL Program Management Services
100%
$2,305,933
Los Angeles Irvine On rio San Diego
Wage 1 of 3
License No. 102
EXHIBIT A
C.W. Driver has not requested any additional reimbursement amounts for this phase and
will use the remaining balance from the previous contract phase for any reimbursements
associated with these services.
Due to the elevated level of detail, the increased amount of documents to review, and
increased amount of services to provide during the Construction Document Phase, C.W.
Driver's preconstruction services for this phase will increase as compared to prior design
phases.
Program Management Services for a project typically range between 4% - 6% of a projects
total construction budget. However, since CWD has the resources and ability to provide
both Program Management AND Construction Services to our clients, we are pleased to
provide these services at a reduced rate, therefore passing this management fee savings
onto the City of Newport Beach.
All of our above estimates are based upon the attached rate sheet. In an attempt to reduce
the overall project costs to the City, C.W. Driver has not increased any of our current
contract rates approved in our original contract.
C.W. Driver will continue to provide the services outlined in our original Agreement with
the City of Newport Beach and have provided a breakdown of these services per the
following as part of our proposal:
Program Management Services:
a. Estimating — C.W. Driver will provide a full project estimate for the Owner during the
CD design phase prior to the final bid phase of the project.
b. Value Engineering — C. W. Driver has allocated resources for an extensive Value
Engineering effort during this phase as each submission is received from the project
designers.
c. Constructobility Review — The level of completeness and accuracy of a set of design
documents prior to the bid phase can significantly affect the overall costs of a project.
C.W. Driver has anticipated providing full constructability review services for each
drawing submission by the design team.
d. Systems Analysis — Since the Civic Center structure is intended to achieve Silver LEED
rated building, C.W. Driver has included in our services a building system analysis
reviewing the proposed design systems for appropriateness of the building type,
structure, climate and building location to help increase the Owner's overall value of the
project.
e. On -going Cost Studies — C.W. Driver has budgeted on -going cost studies for various
elements of the project to evaluate options presented by the designers.
f. BIM Technology / 31) Imaging
g. Bid Phase and Post Bid Services
h. Review and Analyze Cost Estimates from Architects Estimating Consultant,
i. Coordinate and attend oil team related meetings
Page 2of3
CWD
LICENSE N.. Joz
EXHIBIT A
j. Management and Coordination of Owner's Project Consultants - This includes the Owner's
Architect and Subconsultants, Soils Engineer, Environmental Consultant, Site Engineering
and Survey Group, Commissioning Consultant, etc. until the completion of the
Construction Document Phase.
k. Provide, maintain and distribute milestone preconstruction schedules
1. Attendance to all required project meetings and project related committee meetings
m. Facilitate the Design Process and Information between different entities during both
Preconstruction and Construction Phases of the Project
n. Prequali fy Subcontractors and Trade Contractors for the Project
o. Manage the LEED Certification Process and Submittal Requirements to the USGBC
p. Manage Owner's FF &E Process
q. Coordinate Owner Move -in with Owner's Moving Consultant
r. Coordinate the Newport Beach Civic Center Project with other City Construction Projects and
Departments
Exclusions:
a. Construction Management at Risk Services for the Construction Phase of the project (See
separate CWD GMP proposal)
b. Project energy management simulations, calculations,
c. LEED Credit Calculations
d. Reprographics and printing costs ( Reimbursable Items)
Please know that we are committed to the total success of this project and look forward to
continuing our relationship with the City of Newport Beach and the Design Teams.
Sincerely,
W-7
Bruce Curry
Project Executive
C: Darren Mann, CWD
Andy Feth, CWD
Robert Shafer, CWD
William Hahn, CWD
/_ t[ f��' TT_ f' i4xi11�771 .9C1��Y��L�:�i[T�.9RT�fa
Page 3 of
OND
_LICENSE Nu. IUZ
EXHIBIT B
C.W. Drive • C. W. DRIVER
BUJILDF.RS SINCE 1919 Exhibit "B"
MANAGEMENT RATES & REIMBURSABLES
EFFECTIVE January I, 2010- December 31, 2012
ASSISTANT ESTIMATOR
82.00
ASSISTANT PROJECT MANAGER
139.00
ASSISTANT SUPERINTENDENT
109.00
BIM MANAGER
132.00
CARPENTER
102.00
CARPENTER FOREMAN
107.00
CLERICAL
81.00
CONSTRUCTABILITY REVIEWER
139.00
ESTIMATOR/COST ENGINEER
148.00
FIELD SUPERINTENDENT
157.00
GENERAL SUPERINTENDENT
195.00
IT SUPPORT
107.00
LABORER
84.00
LABORER FOREMAN
88.00
PROJECT ENGINEER
83.00
PROJECT EXECUTIVE/ CHIEF ESTIMATOR
195.00
PROJECT (PROGRAM) MANAGER
165.00
SAFETY OFFICER
104.00
SCHEDULER
128.00
SENIOR ESTIMATOR
170.00
SENIOR PROJECT ENGINEER
128.00
SENIOR PROJECT MANAGEMENT
171.00
SENIOR SUPERINTENDENT
163.00
TRUCKING / DELIVERIES
69.00
Above rates apply to standard workweek hours.
Management Rates
Management Rates Include all wages, workers compensation insurance costs, fringe benefits and payroll taxes, office supplies and expense:
mobile phone costs, project staff computers and sofware, main office overhead, and profit
Reimburseable Expenses:
Reimburseable expenses will be reimbursed at rate of cost plus 10 %. Typical reimbursement costs consist of the following: Travel and
subsistence, mileage, Additional Program Management Services not inclusive of this Agreemenr, Outside Consultants, printing costs,
postage and mail delivery charges. Permits and Fees, Testing and Inspections, Payment and Performance Bonds
CITY OF NEWPORT BEACH
PUBLIC WORKS DEPARTMENT
CONTRACT NO. j 1
NEWPORT BEACH CIVIC CENTER AND PARK
April 27, 2010
City of Newport Beach - 1 -
Construction Management at Risk Contract
Table of Contents
ARTICLE 1 DEFINITIONS; CONTRACT COMPONENTS; PROJECT SCOPE ......................3
ARTICLE 2 CONSTRUCTION MANAGER'S BASIC SERVICES ............. ..............................5
ARTICLE 3 DURATION OF THE CONSTRUCTION MANAGER'S SERVICES ....................14
ARTICLE 4 CHANGES IN THE CONSTRUCTION MANAGER'S BASIC SERVICES AND
ADDITIONAL COMPENSATION .......................................... .............................15
ARTICLE 5 CITY RESPONSIBILITIES .................................................... .............................15
ARTICLE 6 COMPENSATION FOR CM SERVICES AND PAYMENT .... .............................18
ARTICLE 7 INSURANCE AND MUTUAL INDEMNITY ............................ .............................23
ARTICLE 8 TERMINATION AND SUSPENSION .................................... .............................30
ARTICLE 9 DISPUTE RESOLUTION ...................................................... .............................31
ARTICLE 10 ADDITIONAL PROVISIONS ................................................. .............................31
Exhibits
Exhibit A
Guaranteed Maximum Price Documentation
Exhibit B
Designation of Bid Packages
Exhibit C
Non - Collusion Affidavit
Exhibit D
Designation of Sureties
Exhibit E
Contraction Manager's Industrial Safety Record
Exhibit F
Faithful Performance Bond
Exhibit G
Labor and Materials Payment Bond
City of Newport Beach -2-
Construction Management at Risk Contract
CONSTRUCTION MANAGER AT RISK CONTRACT
THIS AGREEMENT is entered into this day of , 2010 (the "Effective Date'), by and
between the CITY OF NEWPORT BEACH, a Municipal Corporation (the "City ") and C.W.
DRIVER, INC., a California Corporation ( "Construction Manager" or "CM "), whose address is
15615 Alton Parkway, Suite 150, Irvine CA 92618, and is made with reference to the following:
RECITALS
A. The City is a municipal corporation duly organized and validly existing under the laws of
the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of the City
( "Charter").
B. The City and the CM entered into a contract dated January 13, 2009, as subsequently
amended (the "PM Contract "), for program management services related to the City Hall
and Park Master Plan Project.
C. The City desires to engage the CM to perform construction management services in
connection with Newport Beach Civic Center and Park ( "Project").
D. The CM possesses the skill, experience, ability, background, certification and knowledge
to provide the services described in this Agreement.
NOW, THEREFORE, the City and the CM, in consideration of their mutual covenants herein,
agree as follows:
ARTICLE 1 DEFINITIONS; CONTRACT COMPONENTS; PROJECT SCOPE
1.1 Definitions
"Agreement" shall have the meaning set forth in Section 1.2.
"Allowance Item(s)" shall mean the item(s) identified as such in Exhibit A.
"Basic Services" shall have the meaning set forth in Section 2.1.
"Charter" shall have the meaning set forth in Recital A.
"City" shall mean the City of Newport Beach.
"City Council" shall mean the Newport Beach City Council.
"Construction Manager" or "CM" shall mean C.W. Driver, Inc.
"Contingency" shall mean the line item contingency, in the amount set forth in Exhibit A, for
the contingencies that arise during the course of construction of a project of this size and scope.
"Contractor" shall have the meaning set forth in Section 2.3.7.
City of Newport Beach -3-
Construction Management at Risk Contract .
"Contract Documents" shall have the meaning set forth in Section 1.2.
"Cost of the Project" shall have the meaning set forth in Section 6.1.11.
"Designer" means Bohlin, Cywinski, Jackson, a Pennsylvania Corporation.
"Direct Expenses" means the items set forth in Section 6.2.2.
"Effective Date" shall have the meaning set forth in the opening paragraph of the Agreement.
"Fee for Basic Services" shall mean the fee for the Basic Services set forth in Section 6.2.1.
"CM Fee of 3.25%" means the fee paid to the CM that is 3.25% of the Cost of the Project, the
Basic Services and the Direct Expenses.
"GMP Change Order" shall have the meaning set forth in Section 6.1.9.
"Guaranteed Maximum Price" or "GMP" shall have the meaning set forth in Section 6.1.1, as
may be amended pursuant to Section 6.1.9.
"Master Schedule" shall mean the schedule prepared pursuant to Section 2.3.1.
"PM Contract" shall have the meaning set forth in Recital B.
"Project" shall have the meaning set forth in Recital C and Section 1.3 of the Agreement. The
term Project shall include the total construction of which the Work may be a whole or part of the
Project.
"State" shall mean the State of California.
"Uncommitted Funds" shall have the meaning set forth in Section 6.1.7.
"Work" means the construction and related services to be performed by the CM as provided for
in this Agreement.
1.2 Contract Documents
The complete contract for the Project includes the following documents: this Agreement
( "Agreement "), the Guaranteed Maximum Price Documentation, the Designation of Bid
Packages, the Non - Collusion Affidavit, the Designation of Sureties, the Construction Manager's
Industrial Safety Record, the Performance Bond, the Labor and Materials Payment Bond,
Construction Documents as enumerated in Exhibit B, and all modifications and amendments
thereto (collectively the "Contract Documents "). The Contract Documents comprise the sole
agreement between the parties as to the subject matter therein. Any representations or
agreements not specifically contained in the Contract Documents are null and void. Any
amendments must be made in writing, and signed by both parties in the manner specified in the
Contract Documents.
City of Newport Beach - 4 -
Construction Management at Risk Contract .
1.3 Project Description
The Project name and location is as follows:
Newport Beach Civic Center Project
1100 Avocado Avenue,
Newport Beach, California 92660
The Project will be delivered pursuant to a phased approach, as more particularly described
herein. As contemplated, the Project is generally comprised of the following three phases: (1)
mass excavation and grading, (2) 450 stall parking structure, and (3) new Civic Center, dog
park, civic lawn, expansion of existing library, City Council chambers, a community room, and a
pedestrian bridge over San Miguel Avenue.
The scope of Work is described in the exhibits attached hereto, as may be subsequently
supplemented and amended. Subject to the approval of the City, the parties anticipate
increasing the scope of the Work hereunder by amendments to the Agreement to accommodate
each additional phase of the Project.
1.4 Relationship of the Parties
The CM shall contract directly with such trade contractors as may be necessary for construction
of the Project. All such trade contracts shall be issued consistent with the applicable provisions
of this Agreement, the Charter, the City's Municipal Code and applicable State law.
ARTICLE 2 CONSTRUCTION MANAGER'S BASIC SERVICES
2.1 Scope of Work
The CM shall perform everything required to be performed, as described herein, and shall
provide and furnish all the labor, materials, necessary tools, expendable equipment and all utility
and transportation services required for the Project ( "Basic Services "). It is not required that the
Basic Services be performed in the sequence in which they are described. All of the Work to be
performed and materials to be furnished shall be in strict accordance with the provisions of the
Contract Documents. The CM is required to perform all activities, at no extra cost to the City,
which are reasonably inferable from the Contract Documents as being necessary to produce the
intended results.
2.2 Pre - Construction and Program Management Services
The CM shall perform certain pre- construction and program management services relating to
the Project pursuant to the PM Contract. Services performed under the PM Contract shall not
be considered "Basic Services" under the Agreement.
2.3 Procurement Phase
2.3.1 Master Schedule
The CM shall prepare a Master Schedule for the Project. The Master Schedule shall specify the
proposed start and finish dates for each major Project activity. The CM shall submit the Master
City of Newport Beach - -5-
Construction Management at Risk Contract .
Schedule to the City for acceptance, acceptance of which must be in writing by the City. The
Master Schedule shall subsequently be updated pursuant to Section 2.4.16.
2.3.2 Prequalifying Bidders
In accordance with applicable law, the CM shall prequalify bidders for each bid package set
forth in Exhibit B. This service shall include the following: preparation and transmission of
questionnaires; receiving and analyzing completed questionnaires; and preparing summary
reports regarding this activity to the City. The CM shall also prepare and transmit to the City a
list of prequalified bidders for each bid package. The City shall confirm each prequalified bidder
is not presently debarred, suspended, proposed for debarment, declared ineligible or otherwise
prohibited from participating on the Project.
2.3.3 Pre -Bid Conference
The CM shall conduct a pre -bid conference for each bid package. These conferences shall be
forums for the CM and Designer to explain to the bidders the bid package requirements,
including information concerning schedule requirements, time and cost control requirements,
access requirements, contractor interfaces, the Project administrative requirements and
technical information.
2.3.4 Information to Bidders
The CM shall conduct a telephonic and written correspondence campaign to attempt to create
interest among qualified bidders.
The CM shall prepare and post notices and advertisements to solicit bids for the Project in
accordance with City policies and applicable law.
The CM shall expedite the delivery of bid documents to the bidders. The CM shall obtain
documents from the Designer and coordinate posting to an "FTP site' or copying documents
onto CD's for distribution to the bidders. The CM shall maintain a record of bidders receiving
documents.
The CM shall develop and coordinate procedures to provide answers to bidders' questions.
2.3.5 Addenda
The CM shall receive from the Designer a copy of all addenda. The CM shall review addenda
for clarity, consistency and coordination. By performing the reviews described herein, the CM is
not acting in a manner so as to assume responsibility or liability, in whole or in part, for all or any
part of the Project design or the content of the design documents. The CM shall also distribute
a copy of all addenda to each bidder receiving documents or otherwise make such documents
available to all bidders.
2.3.6 Competitive Bidding; Bid Opening
Each bid package identified in Exhibit B shall be competitively bid in accordance with applicable
law. The CM shall conduct bid openings and shall evaluate the bids to determine the lowest
responsive and responsible bidder for each bid package. The CM shall make recommendations
to the City concerning the acceptance or rejection of bids.
City of Newport Beach - -6-
Construction Management at Risk Contract _
2.3.7 Construction Contracts
At the direction of the City, the CM shall prepare, execute, and deliver the Contract Documents
between the CM and the selected trade contractor(s) ( "Contractor(s) ") for each bid package.
The CM shall enter into a contract in substantially the same form as is attached hereto as
Exhibit H as the same may be amended by agreement of the City and the CM, with the
successful bidder within sixty (60) days after receipt of approval of award from the City. The CM
shall also issue the notices to proceed with respect to these contracts after City instructs CM in
writing to proceed with said contracts.
2.3.8 Self- Performance
[Not used]
2.3.9 Permits, Insurance and Labor Affidavits
The CM shall take responsibility for ensuring that the Contractors have secured the required
bonds, insurance, labor affidavits, and waivers. The Designer is responsible to secure the
building permit.
2.3.10 Time Management
(a) Pre -Bid Construction Schedule. The CM shall inform the bidders of their
responsibilities regarding the pre -bid construction schedule specified in the Instructions
to Bidders or Contract Documents.
(b) Master Schedule. The CM shall provide a copy of the Master Schedule to the bidders.
2.3.11 Cost Management
(a) Estimates for Addenda. The CM shall prepare an estimate of costs for all addenda
and shall submit the estimates to the City for approval. After approval by the City, the
addenda shall be transmitted to bidders and the CM's compensation shall be adjusted
as provided in this Agreement.
(b) Analyzing Bids. Upon receipt of bids, the CM shall evaluate the bids, including
alternate prices and unit prices.
2.3.12 Management Information System (MIS)
(a) Schedule Maintenance Reports. The CM shall prepare and distribute schedule
maintenance reports during the Procurement Phase. The reports shall compare the
actual bid and award dates to scheduled bid and award dates and shall summarize the
progress of the Project.
(b) Project Cost Reports. The CM shall prepare and distribute the project cost reports
during the Procurement Phase. The reports shall specify the actual award prices and
construction costs for the Project, compared to the Project and Construction Budget.
City of Newport Beach -7-
Construction Management at Risk Contract
(c) Cash Flow Reports. The CM shall prepare and distribute cash flow reports during the
Procurement Phase. The reports shall be based on actual award prices and
construction costs for the Project.
2.4 Construction Phase
2.4.1 Pre - Construction Conference
In connection with the Designer, the CM shall conduct pre- construction conferences during
which the CM shall review the reporting procedures, site operations and other contractual
requirements.
2.4.2 Onsite Management and Construction Phase Communication Procedures
The CM shall provide and maintain a management team on the Project site to provide contract
administration and the CM shall establish and implement coordination and communication
procedures among the CM, City, Designer, and Contractors.
2.4.3 Inspection
All Work shall be subject to inspection and /or testing in accordance with applicable law. The
CM shall coordinate any such inspection and /or testing by the City, including furnishing access
to the Project site and the Work. A representative of the CM shall be present for any inspection
and /or testing of the Work.
2.4.4 Contract Administration Procedures
The CM shall establish and implement procedures for expediting and processing requests for
information, shop drawings, material and equipment sample submittals, Contractor schedule
adjustments, change orders, substitutes, payment requests and the maintenance of logs. The
CM shall maintain dailyjob reports. The CM shall be the party to whom requests for
information, submittals, Contractor schedule adjustments, substitutes, change order requests
and payment requests shall be submitted.
2.4.5 Project Site Meetings
The CM shall conduct weekly meetings at the Project site with each Contractor and the CM
shall conduct coordination meetings with all Contractors, the City and Designer. The CM shall
record, transcribe and distribute minutes to all attendees, the City and Designer.
2.4.6 Coordination of Other Independent Consultants
Technical inspection and testing provided by the City or others shall be coordinated by the CM.
The CM shall be provided with a copy of all inspection and testing reports on the day of the
inspection or test or when issued. The CM is not responsible for providing, nor does the CM
control, the actual performance of technical inspection and testing. The CM is performing a
coordination function and is not acting in a manner so as to assume responsibility, in part or in
whole, for all or any part of such inspection and testing.
2.4.7 Cleaning Up
City of Newport Beach -8-
Construction Management at Risk Contract .
During the progress of the Work the CM shall direct Contractors to keep the premises free from
accumulations of waste materials, rubbish and other debris resulting from the Work. At the
completion of the Work, the CM shall cause to have all waste materials, rubbish and debris from
and about the premises as well as all tools, appliances, construction equipment, machinery and
surplus materials and shall leave the site clean and ready for occupancy. The CM shall restore
to original condition all property not designated for alteration by the Contract Documents. CM
will not be responsible or liable for any pre- existing hazardous waste or material(s) at the site
including removal thereof.
2.4.8 Review of Requests for Changes to the Contract Time and Price
The CM shall review the contents of a request for changes to the construction contract time or
price submitted by a Contractor, assemble information concerning the request and endeavor to
determine the cause of the requests. In instances where the CM's analysis reveals that the
request is valid, the CM shall prepare a detailed change order request to the City for approval.
In the event that a request affects the Master Schedule, the CM shall update the Master
Schedule and shall include the updated schedule in the request submitted to the City. The CM
shall prepare the necessary change order documents for signing by the Contractor and City.
2.4.9 Technical Data
The CM shall be entitled to rely upon the accuracy of the technical data contained in reports of
explorations and tests of subsurface conditions at the site that have been used in preparation of
the Contract Documents and have been furnished to the CM. Should the CM encounter (1)
concealed or unknown physical conditions that differ materially from those identified in the
drawings or specifications or (2) unknown physical conditions of an unusual nature differing
materially from those ordinarily encountered and generally recognized as inherent in the work of
the character being performed, the CM shall promptly, after becoming aware thereof and before
performing any work in connection therewith, notify the City in writing about the condition and
may in its notice request an adjustment to the Guaranteed Maximum Price and the completion
date. Time extensions and adjustments to the Guaranteed Maximum Price shall be determined
pursuant to Section 6.1.12.
2.4.10 Quality Review
The CM shall establish and implement a program to monitor the quality of construction. The
purpose of the program shall be to guard the City against defects and deficiency in the work of
the Contractor. The CM shall transmit to the Contractor a notice of nonconforming work and
may reject work when it is the opinion of the CM that the work does not conform to the
requirements of the Contract Documents. Except for minor variations as stated herein, the CM
is not authorized as part of this service to change, evoke, enlarge, relax, alter, or to release any
requirement of the Contract Documents or to approve or accept any portion of the Work not
performed in accordance with the Contract Documents.
2.4.11 Uncovering Work
If any Work is covered prior to acceptance by the City or prior to inspection in accordance with
applicable law, the work shall, if requested by the City, be uncovered for the City's observation
and then be recovered at the CM's expense.
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If the City otherwise considers it necessary or advisable that covered work be observed or
inspected or tested by others, the CM, at the City's request, shall uncover, expose or otherwise
make available for observation, inspection or testing as the City may require that portion of the
work in question, furnishing all necessary labor, material and equipment. If it is found that such
work does not conform to the requirements of the Contract Documents, the CM shall bear all
direct, indirect and consequential costs of such uncovering, exposure, observation, inspection
and testing and of satisfactory reconstruction including, but not limited to, fees and charges of
engineers, architects, attorneys and other professionals. If, however, such work is found to
conform to the contract requirements, the City shall reimburse the CM for costs directly
attributable to such uncovering, exposure, observation, inspection, testing and reconstruction.
2.4.12 Operation and Maintenance Materials
The CM shall receive from the Contractors operation and maintenance manuals, warranties and
guarantees for materials and equipment installed in the Project, in accordance with the Contract
Documents.
2.4.13 Beneficial Occupancy
The City retains the right to beneficially occupy all or any portion of the Work prior to final
completion. Should the City exercise its right to beneficial occupancy, the CM shall coordinate
access to the site to complete Work or to correct nonconforming work to minimize disruption of
the City's activities. The City shall use its best efforts to prevent its beneficial occupancy from
interfering with the conduct of the CM. If City's beneficial occupancy of an area (other than at
the completion of a phase) results in additional costs or schedule impacts to accommodate
City's use of a beneficially occupied area, a change order request will be prepared by the CM
for approval by the City addressing such impacts. Upon such beneficial occupancy, all risk of
damage to the premises beneficially occupied shall shift to the City, who shall secure all
appropriate insurance to protect against such damage. The warranty period for the beneficially
occupied portion of the Work shall commence upon the date of beneficial occupancy by the
City.
It is understood by the CM and the City that this Project will be delivered in the following three
phases: (1) mass excavation and grading, (2) design build parking structure, and (3) the
balance of the Project which includes the new Civic Center, dog park and library expansion.
City agrees to release retention for each phase at the conclusion of each phase.
2.4.14 Substantial Completion
In consultation with the Designer, the CM shall determine when the Project and the Contractors'
Work is substantially complete. In consultation with the Designer, the CM shall, prior to issuing
a Certificate of Substantial Completion, prepare a list of Work that does not conform to the
Contract Documents. This list shall be attached to the Certificate of Substantial Completion.
2.4.15 Final Completion
In consultation with the Designer, the CM shall determine when the Project and the Contractors'
Work is finally completed and, following completion of corrections, shall issue a Certificate of
Final Completion to the City. Following the receipt of payment from the City, the CM shall make
all payments due to Contractors in accordance with the agreement between CM and
Contractors.
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2.4.16 Time Management
(a) Master Schedule. The CM shall adjust and update the Master Schedule for review
and approval by the City. Upon written approval of revised Master Schedule by the
City, the CM shall distribute copies to Designer. All adjustments to the Master
Schedule shall be made for the benefit of the Project.
(b) CM Review of Time Extension Requests. The CM shall, prior to the issuance of a
change order, determine the effect on the Master Schedule of time extensions
requested by the Contractor.
(c) Recovery Schedules. The CM may require the Contractor to prepare and submit a
recovery schedule as specified in the Contract Documents.
2.4.17 Cost Management
(a) Schedule of Values (Each Contract). The CM shall, in participation with the
Contractors, determine a Schedule of Values for each of the construction contracts.
(b) Change Order Control. The CM shall establish and implement a change order control
system. All proposed City- initiated change orders shall first be described in detail in
writing by the City to the Designer and then shall be forwarded in a request for
proposal to the CM, accompanied by technical drawings and specifications prepared
by the Designer. In response to the request for a proposal, the CM shall submit to the
City for evaluation detailed information concerning the costs and time adjustments, if
any, necessary to perform the proposed change order work. The City shall review the
CM's proposal, shall discuss the proposed change order with the CM and endeavor to
determine the CM's basis for the cost and time to perform the Work and, as applicable,
the effect, if any, on the Guaranteed Maximum Price. The CM shall prepare the
change order documents for signature by the City. Upon execution of the change
order documents between the CM and City, the CM shall prepare change order
documents for signature by the affected Contractor. The CM shall verify that the Work,
and any adjustment of time required by approved change orders has been
incorporated into the Master Schedule.
(c) Cost Records. In instances where a lump sum or unit price is not determined prior to
performing Work, the CM shall request from the Contractor records of the cost of
payroll, materials and equipment and the amount of payments to subcontractors
incurred by the Contractor in performing the Work.
(d) Payments. The CM shall review the payment applications submitted by each
Contractor and determine whether the amount requested reflects the progress of the
Contractor's Work consistent with the contract. The CM shall make appropriate
adjustments to each payment application and shall prepare and forward to the City a
progress payment report. The report shall state the total contract price, payments to
date, current payment requested, retainage and actual amounts owed for the current
period. Included in this report shall be a certificate of payment that shall be signed by
the CM and delivered to the City. The CM shall make payments that are due to all
contractors under the terms of the agreement between the CM and contractors,
suppliers, and material men within ten (10) days following the receipt of payment for
the work from the City.
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(e) Labor. As applicable, the CM, its agents and employees shall be bound by and
comply with applicable provisions of the Labor Code and federal, state and local laws
related to labor, including regulations regarding the payment of prevailing wages. The
CM shall strictly adhere to the provisions of the Labor Code regarding minimum
wages; the 8 -hour day and 40 -hour week; overtime; Saturday, Sunday and holiday
work; nondiscrimination because of race, religion, color, national origin, handicap,
ancestry, sex or age.
2.4.18 Management Information System (MIS) .
(a) Schedule Maintenance Reports. The CM shall prepare and distribute monthly
schedule maintenance reports during the Construction Phase. The reports shall
compare the actual construction dates to scheduled construction dates of each
separate construction contract and to the Master Schedule for the Project.
(b) Proiect Cost Reports. The CM shall prepare and distribute monthly Project cost
reports during the Construction Phase. The reports shall specify actual Project and
construction costs compared to the Project and Construction Budget.
(c) Project and Construction Budget Revisions. The CM shall make recommendations to
the City concerning construction changes that may result in revisions to the Project
and Construction Budget or Guaranteed Maximum Price.
(d) Cash Flow Reports. The CM shall prepare and distribute monthly cash flow reports
during the Construction Phase. The reports shall specify actual cash flow as
compared to projected cash flow.
(e) Progress Payment Reports (Each Contract). The CM shall prepare and distribute the
progress payment reports on a monthly basis. The reports shall state the total
construction contract price, payment to date, current payment requested, retainage
and actual amounts owed this period. A portion of this report shall be a certificate of
payment that shall be signed by the CM and delivered to the City for use by the City in
making payments to the CM.
(f) Change Order Reports. The CM shall prepare and distribute change order reports on
a monthly basis during the Construction Phase. The report shall list all City- approved
change orders by number, a brief description of the change order work, the cost
established in the change order and percent of completion of the change order work.
The report shall also include similar information for potential change orders of which
the CM may be aware.
(g) Contractor's Safety Program. The CM shall review the safety programs of each
Contractor and confirm that each Contractor has established safety programs as
required by the Contract Documents. As applicable, the CM shall ensure each
Contractor is implementing and administering a confined space entry program (CSEP)
in accordance with Sections 5156, 5157 and 5158, Title 8, California Code of
Regulations.
2.5 Post Construction Phase
2.5.1 Record Documents
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The CM shall coordinate and expedite submittals of information from the Contractors for
preparation of record drawings and specifications, and shall coordinate and expedite the
transmittal of such record documents to the City. CM shall forward all paper files to Designer for
incorporation into CAD files if so desired by City. All Building Information Modeling (BIM)
electronic files will be transmitted to City at the conclusion of the project.
2.5.2 Organize and Index Operations and Maintenance Materials
Prior to final completion of the Project the CM shall compile manufacturers' operations and
maintenance manuals, warranties and guarantees and bind such documents in an organized
manner. This information shall then be provided to the City.
2.5.3 Occupancy Permit
The CM shall assist the City in obtaining an occupancy permit by accompanying governmental
officials during inspections of the Project, preparing and submitting documentation to
governmental agencies and coordinating final testing and other activities.
2.5.4 Cost Management
(a) Change Orders. The CM shall continue to provide services related to change orders
as specified in Section 2.4.17(b).
2.5.5 Management Information System (MIS)
(a) Closeout Reports. At the conclusion of the Project, the CM shall prepare final project
accounting and closeout reports.
(b) MIS Reports for Move -in and Occupancv. The CM shall prepare and distribute reports
associated with the Occupancy Plan.
2.6 Additional Services
2.6.1 At the request of the City, the CM shall perform the following Additional Services and
shall be compensated for same as provided in Article 6 of this Agreement. The CM shall
perform Additional Services only after the City and CM have executed a written amendment
to this Agreement providing for such services and such amendment has been approved by
the City Council. Additional Services may include:
(a) Services related to investigation, appraisal, or evaluation of existing conditions,
facilities, or equipment or determination of the accuracy of existing drawings or other
information furnished by the City;
(b) Services related to procurement, storage, maintenance and installation of City -
furnished equipment, materials, supplies and furnishings;
(c) Services related to determination of space needs;
(d) Preparation of space programs;
(e) Services related to building site investigations and analysis;
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(f) Services for tenant or rental spaces;
(g) Preparation of a Project financial feasibility study;
(h) Preparation of financial, accounting or MIS reports not provided under Basic Services;
(i) Performance of technical inspection or testing;
Q) Services related to recruiting and training of maintenance personnel;
(k) Performance of warranty inspections during the warranty period of the Project;
(1) Consultation regarding replacement of work damaged by fire or other cause during
construction and furnishing services in connection with the replacement of such work;
(m) Preparation for and serving as a witness in connection with any public or private
hearing or mediation or legal proceeding;
(n) Services related to move -in including preparing and soliciting responses to requests
for proposals, preparing and coordinating the execution of contracts, conducting pre -
moving conferences, administering the contract for moving activities in conjunction
with the move -in for the Project and providing on -site personnel to oversee the
relocation of furniture and equipment by the movers while actual move -in is in
progress.
ARTICLE 3 DURATION OF THE CONSTRUCTION MANAGER'S SERVICES
3.1 The duration of the CM's Basic Services under this Agreement shall be one thousand
sixty -seven (1067) consecutive calendar days from the commencement date.
3.2 The commencement date for the CM's Basic Services shall be March 1, 2010.
3.3 The CM's Basic Services shall be performed for the periods of time indicated in this
Agreement (see exhibits). If portions of design and construction occur simultaneously, some of
the phase durations may overlap.
3.4 Liquidated Damages, Consequential Damages
Delays inconvenience the public and interfere with commerce. Delays also cost taxpayers and
the City undue sums of money, adding time needed for administration, engineering, inspection,
and supervision. Accordingly, the CM agrees to pay $2,500 per day for each day the CM fails to
achieve substantial completion within the time required by the Agreement, and to authorize the
City to deduct these liquidated damages from any money due or coming to the CM. The
liquidated damages are City's exclusive remedy against the CM for delays in reaching
substantial completion.
The CM and City waive claims against each other for consequential damages arising out of or
relating to this Agreement. This mutual waiver includes: (1) damages incurred by the City for
rental expenses, for losses of use, income, profit, financing, business and reputation, and for
loss of management or employee productivity or of the services of such persons; and (2)
damages incurred by the CM for principal office expenses including the compensation of
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personnel stationed there, for losses of financing, business and reputation, and for loss of profit
except anticipated profit arising directly from the Work.
ARTICLE 4 CHANGES IN THE CONSTRUCTION MANAGER'S BASIC SERVICES AND
ADDITIONAL COMPENSATION
4.1 City Changes
4.1.1 The City, without invalidating this Agreement, may make changes in the CM's Basic
Services specified in Article 2 of this Agreement. The CM shall notify the City within fifteen
(15) business days of changes which increase or decrease the CM's compensation, the
duration of the CM's Basic Services, or both.
4.1.2 Additional Compensation and Extended Duration
The CM shall be entitled to receive additional compensation and additional time when the scope
of Basic Services is increased or extended through no fault of the CM. If the scope of Basic
Services is increased or the duration of the CM's Basic Services is extended or the duration of
the Basic Services to be performed within a phase duration specified in Article 3 is extended,
the CM shall be entitled to receive additional compensation and the duration of the Agreement
shall be extended. A written request for additional compensation shall be given by the CM to
the City within 30 days of the occurrence of the event giving rise to such request. The amount
of additional compensation to be paid and the amount of extension of the duration of this
Agreement shall be determined on the basis of the CM's labor rates and fee percentage
established herein.
4.1.3 Changes in the CM's Basic Services
Subject to Section 5.14, changes in the CM's Basic Services and entitlement to additional
compensation shall be made by a written amendment to this Agreement executed by the City
and the CM and approved as to form by the Office of the City Attorney for the City. The
amendment shall be executed by the City and CM and approved as to form by the Office of the
City Attorney for the City prior to the CM performing the services required by the amendment.
The CM shall proceed to perform the services required by the amendment only after receiving
written notice from the City directing the CM to proceed.
4.1.4 Payment of Additional Compensation
The CM shall submit invoices for additional compensation with its invoice for Basic Services and
payment shall be made pursuant to the provisions of Article 6 of this Agreement.
ARTICLE 5 CITY RESPONSIBILITIES
5.1 The City shall provide to the CM complete information regarding the City's requirements
for the Project.
5.2 The City shall examine information submitted by the CM and shall render decisions
thereto promptly.
5.3 The City shall furnish design, legal, accounting and insurance counseling services as
may be necessary for the Project.
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5.4 If the City observes or otherwise becomes aware of any fault or defect in the Project or
nonconformity with the Contract Documents, the City shall give prompt written notice thereof to
the CM.
5.5 The City shall furnish required information and approvals and perform its responsibilities
and activities in a timely manner to facilitate orderly progress of the Work in cooperation with the
CM, consistent with this Agreement, and in accordance with the planning and scheduling
requirements and budgetary restraints of the Project as determined by the CM.
5.6 The City has retained a Designer whose services, duties and responsibilities are
described in a written agreement between the City and Designer. The services, duties, and
responsibilities of the Designer set out in the agreement between the City and Designer shall be
compatible and consistent with this Agreement and the Contract Documents. The City shall, in
its agreement with the Designer, require that the Designer perform its services in cooperation
with the CM, consistent with this Agreement and in accordance with the planning, scheduling
and budgetary requirements of the Project as determined by the City and documented by the
CM. The terms and conditions of the agreement between the City and the Designer shall not be
changed or waived without written consent of the CM, whose consent shall not be unreasonably
withheld.
5.7 The City shall approve the Project and Construction Budget and any subsequent
revisions in writing.
5.8 The City shall afford the CM proper and safe access to the site and a reasonable
opportunity for the introduction and storage of materials and equipment.
5.9 If the City contracts separately with any other parties, the City shall cause all such
agreements to be compatible and consistent with this Agreement. Each of the agreements shall
include waiver of subrogation as required herein.
5.10 The City shall in a timely manner secure, submit and pay for necessary approvals,
easements, assessments, utility company fees, permits and charges required for the
construction, use or occupancy of permanent structures, or for permanent changes in existing
facilities.
5.11 Prior to commencement of each phase of the Project, the City shall furnish evidence
satisfactory to the CM that sufficient funds are available and committed for that phase. Unless
such reasonable evidence is furnished, the CM is not required to commence its services and
may, if such evidence is not presented within a reasonable time, suspend the services specified
in this Agreement upon fifteen (15) days written notice to the City and in such event, the CM
shall be compensated in the manner provided in Section 8.2.
5.12 The City, its representatives and consultants, including the Designer and individuals
performing any inspection and /or testing under Section 2.4.3, shall communicate with the
Contractors only through the CM.
5.13 Except as to independent inspectors performing within the scope of their responsibilities,
the City shall send to the CM and shall require the Designer to send the CM copies of all notices
and communications sent to or received by the City or Designer relating to the Project.
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5.14 The City shall designate, in writing, an officer, employee or other authorized
representatives to act in the City's behalf with respect to the Project. This representative shall
have the authority to approve changes and execute documents on behalf of the City that are
consistent with existing City policies and are in substantial conformance with the terms of this
Agreement. This representative shall be available during working hours and as often as may be
required to render decisions and furnish information in a timely manner.
The City's representative is: the City Manager, or his designee.
5.15 The City shall make payments to the CM on the basis of the Contractor's payment
applications that are certified by the CM and on the basis of the CM's invoices for its services
performed.
5.16 The City shall provide CM with copies of all environmental documents and testing
reports prepared under the California Environmental Quality Act.
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ARTICLE 6 COMPENSATION FOR CM SERVICES AND PAYMENT
6.1 Guaranteed Maximum Price
6.1.1 As of the Effective Date, the City and the CM agree that the Guaranteed Maximum
Price is fourteen million, six hundred seventeen thousand and three hundred seventy -four
dollars ($14,617,374), which is inclusive of the Cost of the Project as respects the bid
package(s) identified in Exhibit B, the Fee for Basic Services, the Direct Expenses and the
CM Fee of 3.25°/x. CM's Basic Services labor rates are understood and agreed to be as
detailed in Exhibit A.
6.1.2 Documentation of the Guaranteed Maximum Price, attached hereto as Exhibit A and
made a part hereof by reference, includes drawings, sketches, specifications, calculations
and /or other data used to identify the basis of the Guaranteed Maximum Price . The
Guaranteed Maximum Price includes an agreed upon contingency amount for use by the CM
and is limited to the work described in the documentation attached as Exhibit A. The
Guaranteed Maximum Price shall only be subject to modification pursuant to Section 6.1.9 or
as otherwise defined in this Agreement.
6.1.3 The Guaranteed Maximum Price includes those taxes applicable to the Project that
are legally enacted at the time the Guaranteed Maximum Price is established. Any increase
or decrease in taxes that affect the Guaranteed Maximum Price and that are enacted after
the Guaranteed Maximum Price is submitted shall be incorporated into that price by change
order.
6.1.4 The Guaranteed Maximum Price relates only to the total Cost of the Work and not to
any single line item or other specific element of the Work or cost breakdown. The
Guaranteed Maximum Price shall include a Contingency. The parties acknowledge and
agree that the Contingency may be used at the sole discretion of the CM to cover any costs
necessary to complete the Work, including for Basic Services; however, said Contingency is
not to cover any changes in the Work, including the cost of unforeseen conditions, design
errors, omissions, deficiencies or defects, scope changes, or any combination thereof, all of
which shall be paid from the City's separate contingency, or for costs resulting from the gross
negligence or willful misconduct of the CM. The CM may access and bill against the
Contingency whenever the CM's actual costs for any other line items exceeds the costs
reflected in the estimate for those line items, and the City shall timely pay or reimburse CM
pursuant to Section 6.2.4 for such contingency billings provided that such payment or
reimbursement does not cause the Guaranteed Maximum Price to be exceeded.
6.1.5 In the same manner, whenever CM's estimate for any given line item in its overall
estimate, including without limitation the line items for Basic Services, exceeds the cost to
complete the Work under that line item, the CM may transfer the excess to the other line item
or items and thereafter bill and be paid or reimbursed for Work performed under those line
item(s), provided that such payment or reimbursement does not cause the Guaranteed
Maximum Price to be exceeded. Concurrently with its applications for payment, the CM will
provide the City with all documentation the City reasonably requires to identify each transfer
included in the application and the effect of the transfer, if any, on the Cost of the Project.
6.1.6 Included in the Guaranteed Maximum Price (GMP) are the Allowance Items. To the
extent that the actual cost of an Allowance Item shall exceed the amount of the allowance,
the GMP shall be increased, dollar for dollar, in accordance with such excess over the
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allowance. To the extent that the actual cost for any Allowance Item is less than the
allowance, the GMP shall likewise be decreased accordingly together with the applicable
proportion of the CM Fee of 3.25 %. In determining the CM Fee of 3.25 %, the CM has taken
into consideration the Work to be performed for Allowance Items (e.g., unloading, handling
and storage at the Project, labor, installation costs, overhead, profit, etc.), and no additional
charges in excess of the CM Fee of 3.25% shall be payable to the CM in relation to any
Allowance Item.
6.1.7 If, upon final completion of the Project, any uncommitted funds remain with respect to
the Guaranteed Maximum Price, any Contingency, the Cost of the Project, the Fee for Basic
Services, and /or Direct Expenses ( "Uncommitted Funds "), the City shall be entitled to retain
seventy -five percent (75 %) of such Uncommitted Funds and the CM shall be entitled to
payment from the City for twenty -five percent (25 %) of such Uncommitted Funds.
6.1.8 The City may change the scope of the Project or a part thereof and the Guaranteed
Maximum Price shall then be adjusted as provided in Section 6.1.12.
6.1.9 GMP Change Orders
Pursuant to Section 2.3, the CM shall request and receive bids for each bid package identified
in Exhibit B and shall advise the City with respect to award of each contract to the lowest
responsive and responsible bidder. As such contracts are procured and awarded, the
Guaranteed Maximum Price shall be adjusted as follows:
(a) Not later than thirty (30) days after issuance of a Notice of Award for each bid
package, unless such time is mutually agreed to be extended, the CM shall propose a
Guaranteed Maximum Price adjustment ( "GMP Change Order") to reflect the
increased scope of Work. The GMP Change Order shall include (1) documentation
used to identify the basis of the proposed Guaranteed Maximum Price adjustment,
including drawings, sketches, specifications, calculations or other relevant data and (2)
the change order documents for signature by the CM and City.
(b) The City Council shall approve and the City shall accept such GMP Change Order
within thirty (30) days of the date of the receipt unless such time is mutually agreed to
be extended. If the City does not accept the GMP Change Order within the time
period herein provided, the GMP Change Order shall be deemed to have been
rejected by the City, in which case the CM and the City shall promptly meet and confer
in good faith as to whether the particular bid package should be re -bid or whether
some agreed upon alternative course of action should be followed.
(c) Upon the City's execution of the change order documents, the supporting
documentation included in the GMP Change Order shall be attached hereto as Exhibit
A and shall be made a part of the Contract Documents.
(d) In the event the City does not accept the CM's proposed GMP Change Order or elects
not to go forward with the Project, the CM shall be reimbursed in accordance with the
requirements for termination as defined in Sections 8.1.1 and 8.1.3 of this Agreement.
(e) It is anticipated that the following phases will be added via change order to this
agreement: (1) Design Build 450 stall Parking Garage, and (2) Civic Center and Park
Project
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6.1.10 In the event that the Cost of the Project exceeds the Guaranteed Maximum Price and
any adjustments therein as may be due pursuant to the terms hereof, the CM shall continue
to perform at no additional cost to the City until the Project, defined by this Agreement and all
Exhibits hereto is complete. The CM shall be responsible for paying all costs, in accordance
with the terms of this Agreement that may be necessary to complete the Project, even if such
amounts are in aggregate in excess of the Guaranteed Maximum Price.
6.1.11 Cost of the Project
The term "Cost of the Project' shall mean all amounts paid by the City to the CM for payment to
all separate Contractors, suppliers and equipment lessors for all work, material, and equipment
supplied to the Project including general conditions items.
(a) The Cost of the Project shall not include the following:
(i) The Fee for Basic Services;
(ii) The CM Fee of 3.25%
(iii) All professional fees paid by the City to the Designer or other consultants
retained directly by the City;
(iv) All costs paid directly by the City to contractors or suppliers retained directly
by the City and outside the scope of the Guaranteed Maximum Price;
(v) All Additional Services costs as defined herein; or
(vi) All other costs not within the control of the CM or identified as being not within
the Guaranteed Maximum Price.
(b) The Cost of the Project may be further defined in the documentation set forth in Exhibit
A. If the provisions of this Section 6.1.11 and the documentation in Exhibit A differ,
then the CM shall identify and explain the difference, but the documentation provided
in Exhibit A shall be the basis for determining the scope of the Guaranteed Maximum
Price.
6.1.12 Other Adjustments to the Guaranteed Maximum Price
The CM understands, confirms and agrees that its responsibility hereunder is to construct the
Project in accordance with the drawings and specifications. The City and CM shall use the
documentation specified in Exhibit A in determining whether the scope of the Project or a part
thereof has been changed and in determining entitlement to an adjustment to the Guaranteed
Maximum Price. A determination regarding all requests for adjustment to the Guaranteed
Maximum Price shall be made in writing within thirty (30) days from the date of a written request
for an adjustment, unless such time is mutually agreed to be extended .
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(a) The amount of adjustment to increase or decrease the Guaranteed Maximum Price
resulting from a change in the Project shall be determined in one or more of the
following ways:
(i) By mutual acceptance of a lump sum, properly itemized and supported by
cost data; or
(ii) By unit prices defined and listed in Exhibit A; or
(iii) If neither of the methods set forth in Sections 6.1.12(a)(i) or 6.1.12(a)(ii) is
agreed upon by the City, the CM, provided it receives a written order signed
by the City, shall promptly proceed with the work involved. The cost of such
work shall then be determined on the basis of the cost records for the
changed work. Choice of this method shall not restrict the City or the CM
from resolving the matter pursuant to a judicial proceeding as to the
justification or right of the CM to an increase in the Guaranteed Maximum
Price due to such work. In such case, the CM shall keep and present in such
form as may be agreeable to the City an itemized accounting together with
appropriate supporting data of the actual cost of the Project.
(b) If the unit prices are stated and if the quantities originally contemplated by the CM are
so changed in a proposed change order or as a result of several change orders that
application of the agreed unit prices to the quantities or work proposed cause
substantial inequity to the City or the CM, the applicable unit prices and Guaranteed
Maximum Price shall be adjusted.
(c) The Designer shall have the authority to order minor changes in the Project consistent
with the intent of the drawings and specifications and not involving an adjustment in
the Guaranteed Maximum Price or change of the construction completion date. Such
changes may be affected by written order only and shall be signed by the City and the
CM prior to the work being performed.
6.2 Cost Plus Fixed Fee
The City shall compensate the CM on the basis of the Cost of the Project plus the CM Fee of
3.25 %, and the Direct Expenses, as follows:
6.2.1 Compensation for Basic Services
The CM shall be compensated for performing the Basic Services described in Article 2 as
follows:
(a) A Fee for Basic Services of seven million, one hundred sixty -nine thousand and two
hundred fifty -five dollars ($7,169,255);
(b) The Cost of the Project plus the CM Fee of 3.25 %; and
(c) Subject to prior written consent by the City, the cost of independent engineers,
architects and other consultants employed by the CM and performing services related
to the Project shall be subject to escalation on an annual basis using CPI.
City of Newport Beach - 21 -
Construction Management at Risk Contract
6.2.2 Direct Expenses
(a) In addition to the compensation for Basic and Additional Services stated herein, the
CM shall be reimbursed for direct expenses'for performing its Basic and Additional
Services, subject to the Guaranteed Maximum Price. Direct expenses are those
actual expenditures made by the CM, its principals, employees, independent
engineers, architects, and other consultants in the interest of the Project, including:
(i) Long distance telephone calls, telegrams and fees paid for securing the
approval of authorities having jurisdiction over the Project;
(ii) Handling, shipping, mailing and reproduction of materials and documents;
(iii) Subject to the reasonable approval by the City, transportation and lodging
expenses when traveling in connection with the Project;
(iv) Computer equipment expenses, including rental of electronic data processing
or word processing equipment, electronic data processing services, computer
software and internal IT support fees;
(v) Premiums for insurance beyond the limits normally carried by the CM that are
required by the terms of this Agreement. The cost of liability insurance
(0.91 %) and CM's labor rates are understood and agreed to be the amounts
set forth in Exhibit A attached herein;
(vi) Gross receipts taxes, sales or use taxes, or services taxes required to be
paid as a result of this Agreement;
(vii) Field office expenses including the cost of office rentals, field telephones,
utilities, field office furniture, equipment and supplies;
(viii) Premium time, overtime and shift work directed to be performed by the City;
and
(xii) Other items as may be itemized in CM's Basic Services per Exhibit A.
(b) Bond premiums.
6.2.3 Construction Manager's Accounting Records
Records for the CM's personnel expenses, independent engineer's, architect's and other
consultant's fees and direct expenses pertaining to the Project shall be maintained on the basis
of generally accepted accounting practices and shall be available for inspection by the City or
the City's representative at mutually convenient times for a period of three years after
completion of the CM's Basic Services. .
6.2.4 Payments.
Payments to the CM shall be made monthly, not later than thirty (30) days after presentation of
the CM's invoice to the City as follows:
City of Newport Beach - 22 -
Construction Management at Risk Contract
(a) Payment of the Fee for Basic Services as indicated in Section 6.2.1(a) shall be equal
to the percentage complete of the Project, provided that CM shall be entitled to
payment to cover mobilization costs at the beginning of the Project, subject to approval
by the City.
(b) Payment of the Cost of the Project and the CM Fee of 3.25% shall be based on
mutually agreed percentage complete for each line item in the Schedule of Values
contained in the Application for Payment;
(c) All Applications for Payment by CM shall contain and reflect a deduction for retainage
equal to ten percent (10 %) of the Cost of the Work. No retention shall be withheld for
CM's Basic Services, Direct Expenses, or CM fee. As the Project has multiple phases,
upon the satisfactory completion of each phase (i.e., Mass Excavation, Parking
Structure, and Civic Center and Park), which includes fully completing the work,
delivery of all plans, manuals guarantees and other similar documents, and their work
has been accepted by City, CM and Designer, City shall within 60 days release all
retention monies withheld from Contractors for the phase.
(d) Reimbursement for direct expenses shall be in amounts equal to expenditures made
during the billing period and during previous billing periods not yet invoiced;
(e) Pursuant to Section 20104.5 of the Public Contract Code, payments due to the CM
that are unpaid for more than thirty (30) days from the date of the CM's invoice shall
bear interest at the annual rate set forth in subdivision (a) of Section 685.010 of the
Code of Civil Procedure.
6.2.5 Compensation for Additional Services
The CM shall be compensated and payments shall be made for performing Additional Services
in the same amount and manner as provided in Article, 6 for Basic Services. There shall be an
increase in the CM fee set out in Section 6.2.1(b) in the amount of 5% of the Cost of the Work
plus the direct cost of any additional Basic Services required to perform the Additional Service.
Pursuant to Section 2.6, the CM shall not be compensated for Additional Services without
written authorization by the City.
6.3 Adjustments to the CM's Compensation
The CM shall promptly notify the City when changes to the scope of the Project or a part thereof
or when delays caused in whole or in part by the City or Designer increase or extend the scope
or duration of the CM's Basic Services. The CM shall be entitled to receive additional
compensation and an increase in the duration of this Agreement pursuant to the provision of
Article 4 and consistent with the provisions of Article 6 of this Agreement. Pursuant to Section
7102 of the Public Contract Code, the CM shall be compensated for damages incurred due to
delays for which the City is responsible.
ARTICLE 7 INSURANCE AND MUTUAL INDEMNITY
7.1 Insurance
Without limiting the CM's indemnification of the City, and prior to commencement of work, the
CM shall obtain, provide and maintain as a cost of the work during the term of the Agreement, a
City of Newport Beach - 23 -
Construction Management at Risk Contract
policy or policies of liability insurance of the type and amounts described below and in a form
satisfactory to the City. It is understood and agreed that the cost of such liability insurance cost
shall be deemed to be 0.91 % of the total of the Cost of the Work and Basic Services.
7.1.1 Certificates of Insurance
The CM shall provide original certificates of insurance with original endorsements to the City as
evidence of the insurance coverage required herein. Insurance certificates must be approved by
the City's Risk Manager prior to commencement of performance or issuance of any permit.
Current certification of insurance shall be kept on file with the City at all times during the term of
this Agreement.
The CM shall procure and maintain for the duration of the Agreement insurance against claims
for injuries to persons or damages to property, which may arise from or in connection with the
performance of the work hereunder by the CM, his agents, representatives, employees or
subcontractors. The cost of such insurance shall be included in the CM's bid.
7.1.2 Signature
A person authorized by the insurer to bind coverage on its behalf shall sign certification of all
required policies.
7.1.3 Acceptable Insurers
All insurance policies shall be issued by an insurance company currently authorized by the
Insurance Commissioner to transact business of insurance in the State of California, with an
assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger)
in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by
the City's Risk Manager.
7.1.4 Coverage Requirements.
(a) Workers' Compensation Coveraae. The CM shall maintain Workers' Compensation
Insurance and Employer's Liability Insurance for his or her employees in accordance
with the laws of the State of California, Section 3700 of the Labor Code. In addition,
the CM shall require each subcontractor to similarly maintain Workers' Compensation
Insurance and Employer's Liability Insurance in accordance with the laws of the State
of California, Section 3700 for all of the subcontractor's employees.
Any notice of cancellation or non - renewal of all Workers' Compensation policies must
be received by the City at least thirty (30) calendar days (10 calendar days written
notice of non - payment of premium) prior to such change. The insurer shall agree to
waive all rights of subrogation against the City, its officers, agents, employees and
volunteers for losses arising from work performed by the CM for the City.
(b) General Liability Coverage. The CM shall maintain commercial general liability
insurance in an amount not less than $2,000,000 per occurrence for bodily injury,
personal injury, and property damage, including without limitation, contractual liability.
If commercial general liability insurance or other form with a general aggregate limit is
used, either the general aggregate limit shall apply separately to the work to be
City of Newport Beach -24-
Construction Management at Risk Contract
performed under the Agreement, or the general aggregate limit shall be at least twice
the required occurrence limit.
(c) Automobile Liability Coverage. The CM shall maintain automobile insurance covering
bodily injury and property damage for all activities of the CM arising out of or in
connection with work to be performed under the Agreement, including coverage for
any owned, hired, non -owned or rented vehicles, in an amount not less than
$2,000,000 combined single limit for each occurrence.
7.1.5 Deductibles and Self- Insured Retentions
Any deductibles or self- insured retentions must be declared to and approved by the City. At the
option of the City, either: the insurer shall reduce or eliminate such deductibles or self- insured
retentions as respects the City, its officers, officials, employees and volunteers; or the CM shall
procure a bond guaranteeing payment of losses and related investigations, claim administration
and defense expenses.
7.1.6 Other Insurance Provisions
The policies are to contain, or be endorsed to contain, the following provisions:
(a) General Liability and Automobile Liability Coverages
(i) The City, its elected or appointed officers, agents, officials, employees, and
volunteers are to be covered as additional insureds as respects: liability
arising out of activities performed by or on behalf of the CM, including the
insured's general supervision of the CM; products and completed operations
of the CM; premises owned, occupied or used by the CM; or automobiles
owned, leased, hired or borrowed by the CM. The coverage shall contain no
special limitations on the scope of protection afforded to the City, its elected
or appointed officers, officials, employees, agents or volunteers.
(ii) The CM's insurance coverage shall be primary insurance and /or primary
source of recovery as respects the City, its elected or appointed officers,
agents, officials, employees and volunteers as respects to all claims, losses,
or liability arising directly or indirectly from the CM's operations or services
provided to the City. Any insurance or self- insurance maintained by the City,
its officers, officials, employees and volunteers shall be excess of the CM's
insurance and shall not contribute with it.
(iii) Any failure to comply with reporting provisions of the policies shall not affect
coverage provided to the City, its officers, agents, officials, employees and
volunteers.
(iv) The CM's insurance shall apply separately to each insured against whom
claim is made or suit is brought, except with respect to the limits of the
insurer's liability.
(v) The insurance afforded by the policy for contractual liability shall include
liability assumed by contractor under the indemnification /hold harmless
provision contained in this Agreement.
City of Newport Beach - 25 -
Construction Management at Risk Contract
(vi) The insurer shall agree to waive all rights of subrogation against the City, its
elected or appointed officers, agents, officials, employees and volunteers for
losses arising from work performed by the CM for the City.
(b) All Coverages
(i) Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be suspended, voided, canceled, rescinded by either
party, reduced in coverage or in limits except after thirty (30) days' prior
written notice by certified mail, return receipt requested, has been given to
the City.
(ii) Timely Notice of Claims. The CM shall give the City prompt and timely notice
of any claim made or suit instituted arising out of or resulting from the CM's
performance under this agreement.
(iii) All of the executed documents referenced in this Agreement must be returned
within ten (10) working days after the date on the "Notification of Award," so
that the City may review and approve all insurance and bonds
documentation.
7.1.7 Force Majeure
Pursuant to Public Contract Code Section 7105, the CM shall not be responsible for the
repairing and restoring damage to Work, when damage is determined to have been proximately
caused by force majeure events, including but not limited to acts of the public enemy, acts or
failures to act of other agencies, in either their sovereign or contractual capacity, voter
initiatives, legal actions, changes in law, fires, floods, seismic activity, labor disputes, freight
embargoes, unusually severe weather and actions or failures to act by the City or the City's
separate contractors. In every case, the failure to perform must be beyond the control and
without the fault or negligence of the CM. .
7.2 Notices and Recovery
The City and CM each shall provide the other with copies of all policies thus obtained for the
Project. Each party shall provide the other with sixty (60) days notice of cancellation, non -
renewal or endorsement reducing or restricting coverage.
7.3 Indemnity
7.3.1 To the fullest extent permitted by law, CM shall indemnify, defend and hold harmless
City, its City Council, boards and commissions, officers, agents, volunteers, and employees
(collectively, the "Indemnified Parties') from and against any and all claims (including, without
limitation, claims for bodily injury, death or damage to property), demands, obligations,
damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs
and expenses (including, without limitation, attorney's fees, disbursements and court costs)
of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may
arise from or in any manner relate (directly or indirectly) to any breach of the terms and
conditions of this Agreement, any work performed or services provided under this Agreement
including, without limitation, defects in workmanship or materials or CM's presence or
activities conducted on the Project (including the negligent and /or willful acts, errors and /or
City of Newport Beach - 26 -
Construction Management at Risk Contract .
omissions of CM, its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for whose acts they
may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require CM to indemnify
the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct
of the Indemnified Parties or from any cliam relating to the City's failure to pay any
undisputed payments. Nothing in this indemnity shall be construed as authorizing any award
of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity
shall apply to all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of indemnification to
be provided by the CM..
7.3.2 The City shall cause the Designer to indemnify and hold harmless the City, its
employees, agents and representatives to the same extent and in the same manner that CM
has provided indemnification for the City under Section 7.3.1.
7.3.3 The City hereby indemnifies and holds harmless the CM and its employees, agents
and representatives from and against any and all claims, demands, suits and damages for
bodily injury and property damage for which the City is liable that arise out of or result from
breach of this Agreement or negligent acts or omissions of the City, its employees, agents,
representatives, independent contractors, suppliers, and the Designer.
7.3.4 The CM shall cause the Contractor to indemnify and hold harmless the City, CM and
Designer from and against any and all claims, demands, suits, damages, including damages
resulting from personal injury or property damage, costs, and expenses and fees that are
asserted against the City, CM and the Designer and that arise out of or result from negligent
acts or omissions or the breach of the contract by the Contractor, its employees, agents and
representatives in performing the Work.
7.3.5 Nothing in this article, nor any other portion of the Contract Documents shall be
construed as authorizing any award of attorneys' fees in any action to enforce the terms of
this Agreement, except to the extent provided for in Section 7.3.1, above.
7.3.6 The rights and obligations set forth in this Article shall survive the termination of this
Agreement.
7.4 Builder's Risk Insurance
The City shall purchase and maintain at all times during the performance of any Work by the
Contractor hereunder, at City's expense, a builders risk insurance policy upon the Work and
materials, tools and equipment used in connection with the Work with all coverage normally
contained therein, including, but not limited to, fire, natural causes (other than earthquake
and flood), and extended coverage, theft, vandalism, malicious mischief, temporary storage,
and transit to and from the job site of materials acquired for incorporation into the Work, in an
amount equal to one hundred percent (100 %) of the full replacement value thereof, and shall
cover reasonable compensation for Designer's and Contractor's services and expenses
required as a result of such insured loss. The builder's risk policy shall name the Contractor
and its subcontractors and sub - subcontractors and material suppliers as additional insureds
to the extent of their interest in property covered under the policy. The City shall be
responsible for the payment of any deductibles under such builders risk policy. Such
City of Newport Beach - 27 -
Construction Management at Risk Contract
property insurance shall be maintained until substantial completion or certificate of
occupancy, whichever is earlier. At its option, the City may include coverage for earthquake
and/or flood, with such coverage limits (which may be lower than the other builders risk limits)
and exclusions.
7.4.1 Perils and Property Insured
Coverage shall apply to the Work, any falsework, temporary buildings (but not trailers), and
property or materials to be included in the Work, inclusive of while at temporary locations
away from the jobsite or in transit on land in the United States or its navigable waters, but not
including tools, machinery, equipment, trailers and sheds belonging to the Contractor,
Subcontractors or Sub - subcontractors. Coverage for debris removal including demolition
occasioned by enforcement of any applicable legal requirements shall be included.
7.4.2 Deductibles-
[Not Used]
7.4.3 Copies of Required Insurances
Certificates of Insurance and copies of policies, as evidence of the insurance required by this
agreement, shall be furnished by the City to Contractor before any work hereunder is
commenced by or on behalf of the City. The Certificates of Insurance shall provide that there
will be no cancellation without thirty (30) days prior written notice (except ten (10) days for non-
payment of premium) by registered mail to Contractor and Designer.
7.4.4 List of Additional Insureds
The CM, Contractors and lower tier subcontractors of any tier shall be named as additional
insureds.
7.4.5 If the City does not intend to purchase such property insurance required by this
Agreement and with all of the coverages in the amount described above, the City shall so
inform the CM in writing prior to commencement of the Work. The CM may then affect such
insurance, and by appropriate Change Order the cost thereof shall be charged to the City. If
the CM is damaged by the failure or neglect of the City to purchase or maintain the Builder's
Risk insurance required by this Agreement, then the City shall bear all reasonable costs
properly attributable thereto.
7.4.6 Partial or beneficial occupancy or use in accordance with Section 2.4.13 shall not
commence until the insurance company or companies providing property insurance have
consented to such partial occupancy or use by endorsement or otherwise. The City shall take
reasonable steps to obtain consent of the insurance company or companies and shall,
without mutual written consent, take no action with respect to partial occupancy or use that
would cause cancellation, lapse or reduction of insurance.
7.4.7 Boiler and Machinery Insurance
City of Newport Beach - 28 -
Construction Management at Risk Contract
The City shall purchase and maintain boiler and machinery insurance required by the
Contract Documents or by law, which shall specifically cover such insured objects during
installation and until final acceptance by the City; this insurance shall include interests of the
City, CM, Contractors and Subcontractors in the Work. The City shall be the named insured
and CM, Contractors and Subcontractors shall be additional insureds.
7.4.8 Loss of Use Insurance-
The City, at the City's option, may purchase and maintain such insurance as will insure the
City against loss of use of the City's property due to fire or other hazards, however caused.
The City waives all rights of action against the CM for loss of use of the City's property,
including consequential losses due to fire or other hazards however caused.
7.4.9 If the CM requests in writing that insurance for risks other than those described herein
or other special causes of loss be included in the property insurance policy, the City shall, if
possible and if the premiums are reasonable, include such insurance, and the cost thereof
shall be charged as agreed by City and CM.
7.4.10 If during the Project construction period the City insures properties, real or personal or
both, at or adjacent to the site by property insurance under policies separate from those
insuring the Project, or if after final payment property insurance is to be provided on the
completed Project through a policy or policies other than those insuring the Project during the
construction period, the City waives its rights of subrogation against the CM and Contractors
for damages caused by fire or other causes of loss covered by this separate property
insurance. All separate policies shall provide this waiver of subrogation by endorsement or
otherwise.
7.4.11 Waivers of Subrogation
The City and CM waive all rights against (1) each other and any of their Contractors, agents
and employees, each of the other, and (2) the Designer, Designer's consultants, separate
contractors for damages caused by fire or other causes of loss to the extent covered by
property insurance obtained pursuant to this Section 7.4 or other property insurance
applicable to the Work, except such rights as they have to proceeds of such insurance held
by the City as fiduciary. The City or the CM, as appropriate, shall require of the Designer,
Designer's consultants, separate contractors, if any, and the subcontractors, sub -
subcontractors, agents and employees of any of them, by appropriate agreements, written
where legally required for validity, similar waivers each in favor of other parties enumerated
herein. The policies shall provide such waivers of subrogation by endorsement or otherwise.
A waiver of subrogation shall be effective as to a person or entity even though that person or
entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay
the insurance premium directly or indirectly, and whether or not the person or entity had an
insurable interest in the property damaged.
7.4.12 A loss insured under City's property insurance shall be adjusted by the City as
fiduciary and made payable to the City as fiduciary for the insureds, as their interests may
appear, subject to requirements of any applicable mortgagee clause. The CM shall pay
Contractors their just shares of insurance proceeds received by the CM, and by appropriate
agreements, written where legally required for validity, shall _require Contractors to make
payments to their Subcontractors in similar manner.
City of Newport Beach - 29 -
Construction Management at Risk Contract .
7.4.13 The CM as fiduciary shall have power to adjust and settle a loss with insurers unless
one of the parties in interest shall object in writing within five days after occurrence of loss to
the City's exercise of this power; if such objection is made, the dispute shall be resolved as
provided in Article 9.
ARTICLE 8 TERMINATION AND SUSPENSION
8.1 Termination
8.1.1 This Agreement may be terminated by the City for convenience after seven (7) days
written notice to the CM.
8.1.2 This Agreement may be terminated by either party hereto upon seven (7) days written
notice should the other party fail substantially to perform in accordance with the terms hereof
through no fault of the terminating party or if the Project in whole or substantial part is
stopped for a period of sixty (60) days under an order of any court or other public authority
having jurisdiction or as a result of an act of government.
8.1.3 In the event of termination pursuant to Section 8.1.1, the CM shall be paid its
compensation for services performed to the date of termination, services of professional
consultants then due, direct expenses and all termination expenses. Termination expenses
are defined as those expenses arising prior, during and subsequent to termination that are
directly attributable to the termination, plus an amount equaling twenty (20) percent of the
unearned CM Fee of 3.25 %.
8.1.4 In the event of termination pursuant to Section 8.1.2, the CM shall be paid its
compensation for services performed to the date of termination, services of professional
consultants then due, direct expenses and all termination expenses. No amount computed
as provided in Sections 8.1.3 shall be paid in addition, if the termination is due to the CM's
failure to substantially perform in accordance with the terms of this Agreement.
8.2 Suspension
8.2.1 The City may order, in writing, the CM to suspend all or any part of the CM's services
for the Project for the convenience of the City or for work stoppage beyond the control of the
City or the CM. If the performance of all or any part of the services for the Project is
suspended, an adjustment in the CM's compensation shall be made for the increase, if any,
in the cost of the CM's performance of this Agreement caused by such suspension and this
Agreement shall be modified in writing accordingly.
8.2.2 In the event the CM's services on the Project are suspended, the City shall reimburse
the CM for all of the costs of its construction site staff, assigned Project home office staff and
other costs provided for by this Agreement for the first thirty (30) days of such suspension.
The CM shall reduce the size of such staff for the remainder of the suspension period as
directed by the City and during such period, the City shall reimburse the CM for all costs of
reduced staff. Upon cessation of the suspension, the CM shall restore the construction site
and home office staff to its former size.
8.2.3 Persons assigned to another project during such suspension or period and not
available to return to this Project upon cessation of the suspension shall be replaced.
City of Newport Beach - 30 -
Construction Management at Risk Contract _
8.2.4 If the Project is suspended by the City for more than three (3) months, the CM shall
be paid compensation for services performed prior to receipt of written notice from the City of
such suspension, together with direct expenses then due and all expenses and costs directly
resulting from such suspension. If the Project is resumed after being suspended for more
than six (6) month, the CM shall have the option of requiring that its compensation, including
rates and fees, be renegotiated. Subject to the provisions of this Agreement relating to
termination, a delay or suspension of the Project does not void this Agreement.
ARTICLE 9 DISPUTE RESOLUTION
All claims, disputes or controversies between the City and the CM arising out of, or relating to
the Agreement, the Project, the Work, the Contract Documents or the breach thereof will, if the
parties cannot resolve their differences, be resolved by mediation in accordance with the
provisions set forth below in Section 9.1.
9.1 Mediation
In the event the parties are unable to resolve a dispute, and as a prerequisite to filing a claim
under the provisions of Government Code Section 900 et seq., either party may submit a notice
of mediation to the other party. All matters submitted to mediation shall be administered in
accordance with the Construction Industry Mediation Rules of the American Arbitration
Association unless the parties mutually agree otherwise. The mediator shall be experienced in
the subject matter of the dispute, as agreed upon by the City and the CM. If the City and the
CM are unable to agree upon a mediator, then one shall be selected by the American Arbitration
Association.
The expenses and fees of the mediation and the administrative fees, if any, will be divided
among the parties equally. Each party will pay its own counsel fees, witness fees, and other
expenses incurred for its own benefit.
The intent of this provision is that in the event the parties cannot resolve an issue, they
participate in good faith mediation in an effort to efficiently resolve disputes.
9.2 Claims
If the parties are unable to resolve the dispute by mediation, either party may file a claim in the
Orange County Superior Court, provided that such action is taken within six months from the
date of the conclusion of the mediation. By entering into this Agreement, the CM warrants and
agrees that the substantive laws of the State shall govern all Agreement disputes.
ARTICLE 10 ADDITIONAL PROVISIONS
10.1 Confidentiality
Subject to the California Public Records Act (Government Code Sections 6250 — 6270) and any
lawful court order, the CM will keep all information designated and marked by the City as
"Confidential" and concerning the Project confidential, except for communications incident to
completion of the Project between the CM, Designer, and Contractor, and their independent
professional engineers, architects and other consultants and subcontractors, and except for
publicity approved by the City and communications in connection with filings with governmental
bodies having jurisdiction over the design or construction of the Project.
City of Newport Beach - - 31 -
Construction Management at Risk Contract
10.2 Limitation and Assignment
The City and the CM each bind itself, its successors, assigns, insurers, and legal
representatives to the terms of this Agreement.
Neither the City nor the CM shall assign or transfer its rights or interest in this Agreement
without the written consent of the other, which consent shall be given in each party's sole and
absolute discretion. However, nothing contained in this Section 10.2 can prevent the CM from
employing contractors or such consultants, associates or subcontractors as the CM may deem
appropriate to assist in performance of the services and of the Work hereunder.
The City and the CM agree to comply with Section 7103.5 of the Public Contract Code, which
states "In entering into a public works contract or a subcontract to supply goods, services, or
materials pursuant to a public works contract, the contractor or subcontractor offers and agrees
to assign to the awarding body all rights, title, and interest in and to all causes of action it may
have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act
(Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and
Professions Code), arising from purchases of goods, services, or materials pursuant to the
public works contract or the subcontract. This assignment shall be made and become effective
at the time the awarding body tenders final payment to the contractor, without further
acknowledgment by the parties.
10.3 Governing Law
Unless otherwise provided, this Agreement shall be governed by the law of the State of
California.
10.4 Venue
The venue of any judicial proceeding under this Agreement shall be Orange County, California
10.5 Extent of Agreement
This Agreement represents the entire and integrated agreement between the City and the CM
and supersedes all prior negotiations, representations or agreements, either written or oral.
This Agreement may be modified or amended only by written instrument signed by both the City
and the CM. Nothing contained in this Agreement is intended to benefit any third party. The
Contractors and Designer are not intended third party beneficiaries of this Agreement.
10.6 Severability
If any provision of this Agreement is held as a matter of law to be unenforceable, the remainder
of this Agreement shall be enforceable without such provision.
10.7 Meaning of Terms
City of Newport Beach - 32 -
Construction Management. at Risk Contract .
References made in the singular shall include the plural and the masculine shall include the
feminine or neuter.
i[t]fMM —Ur-
Whenever any provision of the Contract Documents requires the giving of written notice, it shall
be deemed to have been validly given if delivered in person to the individual or to a member of
the firm or to an officer of the corporation for whom it is intended or if delivered or sent by
registered or certified mail, postage prepaid, addressed as follows:
To the Citv:
City of Newport Beach
Public Works Department
P.O Box 1768
3300 Newport Boulevard
Newport Beach, CA 92663
Attention: Stephen G. Badum
(949) 644- 0000
With a copy to:
City of Newport Beach
City Clerk
P.O. Box 1768
3300 Newport Boulevard
Newport Beach, CA 92663
Attention: Leilani Brown
To the CM:
C.W. Driver
468 North Rosemead Boulevard
Pasadena, CA 91107
Attention: Dana Roberts
(626) 351 -8800
[Signatures to follow on next page.]
City of Newport Beach - 33 -
Construction Management at Risk Contract
IN WITNESS WHEREOF, this Agreement has been executed as of the last date set forth next
to the signatures of the parties, below.
ATTEST
Leilani Brown
CITY CLERK
Approved as N form:
B.: ltd
Leonie Mulvihill 6
Acting City Attorney
City of Newport Beach
Construction Management at Risk Contract
CITY OF NEWPORT BEACH
A Municipal Corporation
0
Mayor
C.W. DRIVER INC.
A California Corporation
0
Dana Roberts
President
Insert Name
Financial Officer
34-
G.W. Driver
BUILDERS SINCE 1919
April 21, 2010
Mr. Steve G. Badum
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92658 -8915
EXHIBIT A
Re: Newport Beach Civic Center and Park Project
Guaranteed Maximum Price (GMP)
Mass Excavation and Shoring Construction Phase I
C.W. Driver Project Basic Services
Dear Steve:
15615 Alton Parkway
Suite 150
Irvine, CA 92618
Fax 949.261.5167
Telephone 949.261.5 100
C. W. Driver is pleased to submit our Guaranteed Maximum Price Proposal (GMP) for:
a) The Mass Excavation and Shoring Phase of the Newport Beach Civic Center and Park
Project
b) C.W. Driver's Basic Services for the Newport Beach Civic Center and Park Project for on-
site project staff and support facilities for all project construction phases as per current
scope of work identified in the 100% DD set of design documents prepared by the architect,
Bohlin, Cywinski, Jackson (BCJ) dated February 18, 2010 and per C.W. Driver's attached
construction schedule and
For added clarification and detail of our proposed services, please see attached documents. C.W.
Driver is very excited about the opportunity to continue to work with the City of Newport Beach
and look forward to a very successful project.
The Total Phase I Proposal for these services is as follows:
IsomDesch
tp Ion
Total
I
C.W. Driver Basic Services for Civic Center & Park Project GMP
7,169,255
II
Mass Excavation and Shoring Construction Phase GMP*
6,726,574
Subtotal
13,895,
III
General Liability Insurance (0.91 %)
126,453
IV
Direct Expenses Allowance for Project Bond (1.0%)
138,959
V
Construction Management Fee (3.25%)
456,133
TOTAL PHASE I
$14,617
* Includes Contractor Construction Contingency
Los Angeles Irvine Ontario San Diego
Page I of 3
a.0.®
License No. 102
LJ
s-�y
Mass Excavation Construction Phase
The GMP for this work is based upon the scope of work identified in the Mass Excavation Bid Set of
Drawings by Bohlin, Cywinski, Jackson (BCJ) dated March 17, 2010 including their Addendum # I for
this package issued on March 31, 2010. (Please see attached drawing list.)
C.W. Driver's Project Basic Services
C.W. Driver's Basic Services Proposal of $7,169,255 is a Guaranteed Maximum Price (GMP) for
Basic Services labor and support services through the completion of the construction of the
Newport Beach Civic Center Project as per CWD's attached construction schedule and for the
scope of work identified in BCJ's 100% Design Development Set of Project Documents and
Specifications dated February 18, 2010. Please see the attached C.W. Driver attachments for a
detailed breakdown of the services included in this proposal.
Basic Services Labor = $5,648,095
Basic Support Services = $1.521.160
Subtotal CWD Basic Services* _ $7,169,255
*Excludes Project Liability Insurance and Project Fee. Please see breakdown on the front of this
proposal for these costs.
Exclusions:
a. Program Management and Preconstruction Services. (See separate CWD Proposal)
b. Monthly Site Utility Consumption Including Site Offices (installation excepted)
c. Project Night Watchman
d. Materials and Soils Testing and Inspection
e. Shuttle Services for Trades and Temporary Parking expenses
f. Owner Scope Changes
g. Unknown Subsurface Conditions
h. Building Permit Fees
i. Utility Company and Connection Fees
j. Subsequent Construction Phases and Scope of Work not Addressed by the Mass Excavation
Design Package
k. Three Upper Most Concrete Retaining Walls at the North Park (only lower wall included)
L Temporary Access Roads for Emergency Use Vehicles
Please know that we are committed to the total success of this project and look forward to
continuing our relationship with the City of Newport Beach and the Design Teams.
Sincerely,
Bruce Curry
f;
Project Executive
CNND
Page 2of3 LICENSE N.. 102
C: Darren Mann, CWD
Andy Feth, CWD
Robert Shafer, CWD
William Hahn, CWD
Attachments:
b Mass Excavation Drawing List
b Mass Excavation Phase I Trade Package Summary
b Basic Services GCM List
b Basic Services Labor Matrix
b Construction Schedule
b Project Rate Sheet
Page 3of3 LICENSE Nn. 102
EXHIBIT "A"
BULLETIN #1
CONTRACT DOCUMENT LISTING
NEWPORT BEACH CITY HALL AND PARK PROJECT
APRIL 7", 2010
VERSION 1.1
THE LISTING BELOW COMPRISES ALL OF THE DOCUMENTS INCLUDED UNDER THIS
CONTRACT. UNLESS OTHERWISE NOTED, ALL DOCUMENTS ARE AS PREPARED BY
BOHLIN, CYWINSKI, JACKSON.
DRAWINGS
ITEM # SHEET PREPARED BY
ORIGINAL LATEST
ISSUE DATE REV DATE
001
CSI
Bohlin, Cywinski, Jackson
3/31/2010
002
MX01.01
ARUP
3/17/2010
003
MX01.02
ARUP
3/17/2010
004
MX01.03
ARUP
3/17/2010
005
04 of 38
Hall & Foreman, Inc.
9/23/2009
006
05 of 38
Hall & Foreman, Inc.
8/27/2009
007
06 of 38
Hall & Foreman, Inc.
8/27/2009
008
07 of 38
Hall & Foreman, Inc.
8/27/2009
009
08 of 38
Hall & Foreman, Inc.
8/27/2009
010
MX03.01
ARUP
3/17/2010
011
MX03.02
ARUP
3/17/2010
012
MX03.03
ARUP
3/17/2010
012
MX03.03
ARUP
3/31/2010
013
MX03.04
ARUP
3/17/2010
014
MX04.01
ARUP
3/17/2010
015
MX04.02
ARUP
4/6/2010
016
MX04.03
ARUP
4/6/2010
017
MX04.04
ARUP
3/17/2010
018
MX04.05
ARUP
3/17/2010
019
MX04.06
ARUP
3117/2010
020
MX04.07
ARUP
3117/2010
021
MX04.08
ARUP
3/17/2010
022
MX04.09
ARUP
3/1712010
023
MX04.10
ARUP
3/17/2010
024
MX05.01
ARUP
3/17/2010
025
MX06.01
ARUP
3/31/2010
026
MX06.02
ARUP
3/31/2010
027
MX06.03
ARUP
3/31/2010
028
MX06.04
ARUP
3/17/2010
029
MX06.05
ARUP
3/17/2010
030
MX06.06
ARUP
3/17/2010
EXHIBIT "A"
BULLETIN #1
CONTRACT DOCUMENT LISTING
PAGE 2 OF 2
ITEM # SHEET PREPARED BY
ORIGINAL LATEST
ISSUE DATE REV DATE
031
MX06.07
ARUP
3/17/2010
032
MX06.08
ARUP
3/31/2010
033
MX06.09
ARUP
3/31/2010
034
MX06.10
ARUP
3/31/2010
035
MX06.11
ARUP
3/17/2010
036
MX06.12
ARUP
3/17/2010
037
MX06.13
ARU P
3/17/2010
038
MX06.14
ARUP
3/17/2010
039
MX06.15
ARUP
3/17/2010
040
MX06.16
ARUP
3/17/2010
041
MX06.17
ARUP
3/17/2010
042
MX07.01
ARUP
3/17/2010
043
MX07.02
ARUP
3117/2010
044
MX07.03
ARU P
3/17/2010
045
MX07.04
ARUP
3/17/2010
046
MX07.05
ARUP
3/17/2010
047
MX07.06
ARUP
3/17/2010
048
MX07.07
ARUP
3/17/2010
049
MX07.08
ARUP
3/1712010
050
MX08.01
ARUP
3/17/2010
051
MX08.02
ARUP
3/17/2010
052
MX08.03
ARUP
3/17/2010
053
MX08.04
ARUP
3/17/2010
054
MX08.05
ARUP
3/17/2010
055
MX08.06
ARUP
3/1712010
SPECIFICATION MANUAL
Project Specification Manual prepared by Bohlin, Cywinski, Jackson dated March 17, 2010 entitled
Mass Excavations Bid Set divisions I through 3 inclusive.
SOILS REPORT
Soils Report prepared by Leigton Consulting, Inc dated April 2, 2010 entitled Geotechnical
Engineering Exploration Report for the Newport Beach Civic Center and Park, City of Newport
Beach, California.
BULLETIN
Bulletin Prepared by Bohlin, Cywinski, Jackson as follows:
Bulletin Number #I dated March 31, 2010
CNV Driver
R.VII.pFRIS SI \C11, 1914
Mass Excavation
C. W. DRIVER
Budget Summary
04/19110
EXHIBIT - A
Printed: 20- Apr -10
Newport Beach Civic Center and Park Date Prepared:
20- Apr -10
Newport Beach, CA Estimate No.:
#87101
Square Feet:
122,295
Months On -Site:
25.0
Includes Addenda: NIA
Estimator: RDS,
Rn.RF TF VR
* Spec No
Seq
Description
Notes Mass Ex Percent Cost per
Sqft
017300
6
Surveying
99,100
01 5000
7
Site Specific Requirements
66,380
01 5000
8
Temp. Barricades & Chain link
Fencing
84,866
01 5000
10
Temp Facilities and Controls
41,330
11
Construction & Final Clean -Up
26,004
0241 13
13
Selective Structure Demolition
incl in earthwork
01 74 19
14
Construction waste
management and disposal
2,849
31 0000
15
Site Preparation/ Earthwork
3,366,992
16
Temp Dewatering
12,387
31 50 10
17
Earth Shores & Underpin
1,71 1,799
31 2500
19
Erosion Control
34,166
32 12 16
20
Asphaltic Paving
15,207
03 33 13
23
Site Walls
140,265
3341 00
30
Drainage
234,947
06 61 00
32
Wrought Iron / RFP Fencing
23,596
03 37 13
37
Gunite & Shotcrete
incl in earth shoring
0711 16
50
Waterproofing
363,795
01 3233
109
Time Lapse Photography
4,627
END CSI LIS-
116
End Csi Listing
—End O(S.m , -Do Not
SUBTOTAL
6,228,309
XTR- 01000 -P
117
Construction Contingency
8.00% 498,265
Total Estimate
6,726,574
PAGE 1
City of Newport Beach Civic Center and Park Project
C.W. Driver Project General Conditions GMP - Support Services Exhibit - A
Project Duration (Months) 35
Description Quantity Unit Unit Labor Unit Matl /EQ Total Labor Matl /EQ Total Cost
s�,.0
mnth
U o0
600.00
0
21,000
21,000
Hard Hats
100.0
each
0.00
30.00
0
3,000
3,000
Safety Supplies & Signs
35.0
mnth
0.00
350M
0
12,250
12,250
Fire Extinguishers
600
each
000
12500
0
7,500
7,500
Fire Hoses
30.0
each
0.00
350.00
0
10,500
10,500
Construction Photos
Construction Photos
35.0
mnth
0.00
50.00
0
1,750
1,750
Photo Reproduction
35.0
mnth
0.00
50.00
0
1,750
1,750
Preconstruction Survey
1.0
Isum
0.00
500.00
0
500
500
Mobilize /Demobilize
Mob /Demob Trailers Single
4.0
Isum
0.00
950.00
0
3,800
3,800
Mob /Demob Trailers six Wide
2.0
Isum
0.00
17,000.00
0
34,000
34,000
Deliver Storage Bin (3)
3.0
each
0.00
100.00
0
300
300
Phone Set-Up & Int System
1.0
Isum
000
440000
0
4,400
4,400
Set Temporary Poles
3.0
each
0.00
150.00
0
450
450
Set Subfeed Panels
3.0
each
0.00
125.00
0
375
375
Temporary Utilities
Utility Usage (By Owner)
Rent Temp. Generator
7.0
mnth
0.00
1 500 00
0
10,500
10,500
Power Lines /Cords
1.0
Isum
0.00
5,000.00
0
5,000
5,000
Phone Company Charge
35.0
mnth
0.00
1 100 00
0
38,500
38,500
Temporary Sanitation
35.0
mnth
0.00
2,600.00
0
91,000
91,000
Hand Wash Stations
35.0
mnth
0.00
1,50000
0
52,500
52,500
Rent Temporary Heat
12.0
mnth
0.00
500.00
0
6,000
6,000
Barrier & Enclosure
Lunch Area
1.0
Isum
0.00
6,15000
0
6,150
6,150
Security (Excluded)
0
Watchman (Off- hours)
0.0
mnhr
0.00
0.00
0
0
0
Access /Parking
Maintain Access Road
35.0
mnth
0.00
500.00
0
17,500
17,500
Temp. Stairs /Ladders
150.0
treads
0.00
8.00
0
1,200
1,200
Stair Filler /Protect
150.0
treads
0.00
4.00
0
600
600
Shuttle Service (Excluded)
Shuttle Service (excluded)
0.0
weeks
0.00
0.00
0
0
0
1 of 3
City of Newport Beach Civic Center and Park Project
C.W. Driver Project General Conditions GMP - Support Services Exhibit - A
Project Duration (Months) 35
Description Quantity Unit Unit Labor Unit Matl /EQ Total Labor Matl /EQ Total Cost
P9....- 1 1_ o
Progressive Clean -Up Y
35.0
mnth
0.00
750.00
0
26,250
26,250
Trash Removal /Dump
60.0
loads
000
60000
0
36,000
36,000
Temp. Dewatering
1.0
Isum
0.00
10,000.00
0
10,000
10,000
Project Signs
Project Signs
10.0
each
0.00
1 500 00
0
15,000
15 000
Field Enclosures
job Office Single 12x60 (Mass Ex)
7.0
mnth
0.00
650.00
0
4,550
4,550
12x60 Package "A"
7.0
mnth
0.00
875.00
0
6,125
6,125
job Office 6 Wide 72x60
27.0
mnth
0.00
3,400.00
0
91,800
91,800
72x60' Package "D"
27.0
mnth
0.00
1 650 00
0
44,550
44,550
Insp / Arch Office w/ Conf Rm Double 24x60
27.0
mnth
0.00
1,120.00
0
30,240
30,240
24x60 Package "A'
27.0
mnth
0.00
975.00
0
26,325
26,325
Storage Bin
35.0
mnth
0.00
200.00
0
7,000
7,000
Trailer Cleaning Service
27.0
mnth
0.00
1 050 00
0
28,350
28,350
Trailer Security System & Service
27.0
mnth
0.00
135.00
0
3,645
3,645
Mat/Eauo Protection
Mat/Equp Protection
1.0
Isum
0.00
20,000.00
0
20,000
20,000
Project Supplies & Expenses
Office Supplies
35.0
mnth
0.00
1 300 00
0
45,500
45,500
Blueprints & Reproduction
0.0
Isum
0.00
250,000.00
0
0
0
Water & Coffee Service
35.0
mnth
0.00
175.00
0
6,125
6,125
Messenger Service
45.0
each
0.00
75.00
0
3,375
3,375
Postage /UPS
35.0
mnth
0.00
800.00
0
28,000
28,000
Cell Phones Charge
35.0
mnth
0.00
1,450.00
0
50,750
50,750
Copy Machines
35.0
mnth
0.00
1 100 00
0
38,500
38,500
Fax Machines
3.0
each
0.00
350.00
0
1,050
1,050
Computers and Printers
10.0
each
0.00
2,500.00
0
25,000
25,000
DSL Service
35.0
mnth
0.00
150.00
0
5,250
5,250
Scheduling Plotter
0.0
each
0.00
6,000.00
0
0
0
Scheduling Supplies
35.0
mnth
000
20000
0
7,000
7,000
Meeting Expense
35.0
mnth
0.00
600.00
0
21,000
21,000
Goodwill Expense
Isum
0,00
15,000.00
0
0
0
Computer Software (Prolog Maintenance)
0.0
mnth
0.00
40.00
0
0
0
2 of 3
City of Newport Beach Civic Center and Park Project
C.W. Driver Project General Conditions GIMP - Support Services Exhibit - A
Project Duration (Months) 35
Description Quantity Unit Unit Labor Unit Matl /EQ Total Labor Matl /EQ Total Cost
^r-
jam
mntn
U uU
500.00
0
17,500
17,500
Final Inspect/Close
Guarantee Work
0.0
Isum
0.00
18,900.00
0
0
0
Repair Damage Work
0.0
Isum
0.00
12,850.00
0
0
0
Maintenance Library
0.0
Isum
0.00
4,000.00
0
0
0
Final Clean -Up
Final Clean -Up Shell
0
sgft
0.08
0.02
0
0
0
Final Clean -Up Finish
0
sgft
0.25
0,05
0
0
0
Clean Windows /Glass
0.0
mnhr
48.54
1.25
0
0
0
Rental Equip. /Tools
Small Tools
1.0
Isum
0.00
30,000.00
0
30,000
30,000
Equipment Repair
1.0
Isum
0.00
15,000.00
0
15,000
I S 000
Mules (3)
35.0
mnth
0.00
1 650 00
0
57,750
57,750
Gasoline And Oil
35.0
mnth
0.00
1,200.00
0
42,000
42,000
Main Office Support
Legal Services
1.0
Isum
S10.00
51,000.00
0
51,000
51,000
Data Processing /IT Support
35.0
mnth
3,800.00
1 800 00
133,000
63,000
196,000
Tests & Inspections (Excluded)
Subtotal Project Material Costs
$
1.321.160
Blueprints & Reproduction (Allowance)
TOTAL Project Material Costs
3of3
$ 200,000
$ 1,521,160
9
or
New P t Beach City Hall & Park
Daae:OB- Janl3 Pµe left
.Date 03A1ayl9 Exhibit E - Master Project Schedule
Addendum #1
NCE 191
Exhibit "A"
April 21, 2010
PROFESSIONAL SERVICES RATE SCHEDULE
1 7/2/11 to 711/12
ACCOUNTING - Regular Time
59.80
63.39
67.19
71.22
ACCOUNTING - Overtime Time
86.71
91.91
97.43
103.27
ASSISTANT ESTIMATOR
70.20
74.41
78.88
83.61
ASSISTANT PROJECT MANAGER
83.20
88.19
93.48
99.09
ASSISTANT SUPERINTENDENT
78.00
82.68
87.64
92.90
BIM MANAGER
97.50
103.35
109.55
116.12
CARPENTER - Regular Time
61.23
64.90
68.80
72.93
CARPENTER - Overtime
84.18
89.23
94.58
100.26
CARPENTER - Premium Time
108.66
115.18
122.09
129.42
CARPENTER FOREMAN - Regular Time
64.78
68.67
72.79
77.15
CARPENTER FOREMAN - Overtime
89.87
95.26
100.98
107.04
CARPENTER FOREMAN - Premium Time
114.52
121.39
128.67
136.40
CHIEF ESTIMATOR
193.70
205.32
217.64
230.70
CLERICAL - Regular Time
62.40
66.14
70.11
74.32
CLERICAL - OvertimeTime
81.12
85.99
91.15
96.62
CONSTRUCTABLITY REVIEWER
104.00
110.24
116.85
123.87
ESTIMATOR / COST ENGINEER
101.40
107.48
113.93
120.77
FIELD SUPERINTENDENT
110.50
11713
124.16
131.61
GENERAL SUPERINTENDENT
189.80
201.19
213.26
226.05
IT SUPPORT
80.60
85.44
90.56
96.00
LABORER - Regular Time
48.93
51.87
54.98
58.28
LABORER - Overtime
64.98
68.88
73.01
77.39
LABORER - Premium Time
81.26
86.14
91.30
96.78
LABORER FOREMAN - Regular Time
51.77
54.88
58.17
61.66
- LABORER FOREMAN - Overtime
68.94
73.08
77.46
82.11
LABORER FOREMAN - Premium Time
73.87
78.30
83.00
87.98
PROJECT COORDINATOR - Regular Time
63.70
67.52
71.57
75.87
PROJECT COORDINATOR - Overtime
92.37
97.91
103.78
110.01
PROJECT ENGINEER
75.40
79.92
84.72
89.80
- PROJECT EXECUTIVE
201.50
213.59
226.41
239.99
" PROJECT / PROGRAM MANAGER
131.30
139.18
147.53
156.38
QUALITY CONTROL MANAGER
110.50
117.13
124.16
131.61
- - - SAFETY MANAGER
114.40
121.26
128.54
136.25
_ SCHEDULER
124.80
132.29
140.23
148.64
SENIOR ESTIMATOR
127.40
135.04
143.15
151.74 -
SENIOR PROJECT ENGINEER
78.00
82.68
87.64
92.90
SENIOR PROJECT / PROGRAM MANAGER
139.10
147AS
156.29 -
165.67
SENIOR SUPERINTENDENT
135.20
143.31
151.91
161.03
TRUCKING / DELIVERIES
66.30
70.28
74.49
78.96
Management Rates
Management Rates Include all wages, workers compensation insurance
costs, fringe benefts and payroll rues,
F
Above rates apply to standard workweek hours. Additional overtime costs will apply to hourly
employees.
-
The above rates will be charged including an increase of V1 per year in subsequent calendar years beyond the calendar years shown.
-
Reimburseable expenses will be reimbursed atcate ofccst plus 3255L Typical reimbursement costs consist of the following Traveland
subsistence, mileage, Additional Program Management Services not inclusive of this Agreement. Outside Consuhants,printing costs, -
- postage and mail delivery charges, Permits and Fees. Testing and Inspections, Payment and Performance Bonds -
EXHIBIT B
Designation of Bid Packages
The Project shall consist of the bid packages set forth in this Exhibit E. Each package
shall be procured in accordance with Section 2.3.
The CM, by signing this designation, certifies that bid packages set forth below constitute
the Project as described in Section 1.3. Use additional sheets if needed.
Bid
Package
No.
Description of Bid Package
% of
Project
Construction Manager
Authorized Signature/Title
City of Newport Beach -36- - DRAFT
Construction Management at Risk Contract Exhibit B
EXHIBIT C
Non - Collusion Affidavit
State of California )
) ss.
County of )
, being first duly sworn, deposes and says that he or she is
of the parry making the
foregoing bid; that the bid is not made in the interest of, or on behalf of, any undisclosed person, partnership,
company, association, organization, or corporation; that the bid is genuine and not collusive or sham; that
party making the foregoing bid; that the bid is not made in the interest of, or on behalf of, any undisclosed
person, partnership, company, association, organization, or corporation; that the bid is genuine and not
collusive or sham; that the bidder has not directly or indirectly induced or solicited any other bidder to put in a
false or sham bid, and has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or
anyone else to put in a sham bid, or that anyone shall refrain from bidding; that the bidder has not in any
manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid
price of the bidder or any other bidder, or to fix any overhead, profit, or cost element of the bid price, or of
that of any other bidder, or to secure any advantage against the public body awarding the contract of
anyone interested in the proposed contract; that all statements contained in the bid are true; and, further,
that the bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the
contents thereof, or divulged information or data relative thereto, or paid, and will not pay, any fee to any
corporation, partnership, company association, organization, bid depository, or to any member or agent
thereof to effectuate a collusive or sham bid.
I declare under penalty of perjury of the laws of the State of California that the foregoing is true and correct.
Construction Manager Authorized Signature/Title
Subscribed and sworn to (or affirmed) before me on this day of 2010
by personally known to me or proved
to me on the basis of satisfactory evidence to be the persons) who appeared before me.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
[SEAL]
Notary Public
My Commission Expires:
City of Newport Beach -37- DRAFT
Construction Management at Risk Contract Exhibit D
EXHIBIT D
Designation of Sureties
Construction Manager:
Provide the names, addresses, and phone numbers for all brokers and sureties from whom the
Construction Manager intends to procure insurance and bonds (list by insurance /bond type):
City of Newport Beach - -38- DRAFT
Construction Management at Risk Contract Exhibit D
EXHIBIT E
Construction Manager's Industrial Safety Record
Construction Manager_
Record Last Five (5) Full Years
Current Year of Record
The information required for these items is the same as required for columns 3 to 6, Code 10,
Occupational Injuries, Summary-- Occupational Injuries and Illnesses, OSHA No, 102.
City of Newport Beach -39- DRAFT
Construction Management at Risk,Contract Exhibit E
Current
Record
Record
Record
Record
Record
Total
Year of
for
for
for
for
for
Record
2009
2008
2007
2006
2005
2010
No. of contracts
Total dollar
Amount of
Contracts (in
Thousands of $)
No. of fatalities
No. of lost
Workday Cases
No. of lost
workday cases
involving
permanent
transfer to
another job or
termination of
employment
The information required for these items is the same as required for columns 3 to 6, Code 10,
Occupational Injuries, Summary-- Occupational Injuries and Illnesses, OSHA No, 102.
City of Newport Beach -39- DRAFT
Construction Management at Risk,Contract Exhibit E
EXHIBIT F
Faithful Performance Bond
The premium charges on this Bond is $
being at the rate of $ thousand of the [insert applicable
price].
WHEREAS, the City Council of the City of Newport Beach, State of California, by motion
adopted, awarded to Name of Contractor, hereinafter designated as the "Principal ", a contract for
construction of [Insert name of Project], Contract No. XXXX in the City of Newport Beach, in
strict conformity with the plans, drawings, specifications, and other Contract Documents maintained
in the Public Works Department of the City of Newport Beach, all of which are incorporated
herein by this reference.
WHEREAS, Principal has executed or is about to execute Contract No. XXXX and the
terms thereof require the furnishing of a Bond for the faithful performance of the Contract;
NOW, THEREFORE, we, the Principal, and
, duly authorized to transact business under the laws of the
State of California as Surety (hereinafter "Surety "), are held and firmly bound unto the City of
Newport Beach, in the sum of (INSERT CONTRACT DOLLAR AMOUNT) lawful money of the
United States of America, said sum being [equal to 100% of the cost of construction for the
Project]; for which payment well and truly to be made, we bind ourselves, our heirs, executors
and administrators, successors, or assigns, jointly and severally, firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the Principal's
heirs, executors, administrators, successors, or assigns, fail to abide by, and well and truly keep
and perform any or all the work, covenants, conditions, and agreements in the Contract Documents
and any alteration thereof made as therein provided on its part, to be kept and performed at the
time and in the manner therein specified, and in all respects according to its true intent and
meaning, or fails to indemnify, defend, and save harmless the City of Newport Beach, its officers,
employees and agents, as therein stipulated, then, Surety will faithfully perform the same, in an
amount not exceeding the sum specified in this Bond; otherwise this obligation shall become null
and void.
As a part of the obligation secured hereby, and in addition to the face amount specified in
this Performance Bond, there shall be included costs and reasonable expenses and fees, including
reasonable attorneys fees, incurred by the City, only in the event the City is required to bring an
action in law or equity against Surety to enforce the obligations of this Bond.
Surety, for value received, stipulates and agrees that no change, extension of time,
alterations or additions to the terms of the Contract or to the work to be performed thereunder or
to the specifications accompanying the same shall in any way affect its obligations on this Bond,
and it does hereby waive notice of any such change, extension of time, alterations or additions of
the Contract or to the work or to the specifications.
City of Newport Beach -40- DRAFT
Construction Management at Risk Contract Exhibit F
This Faithful Performance Bond shall be extended and maintained by the Principal in full
force and effect for one (1) year following the date of formal acceptance of the Project by the City.
In the event that the Principal executed this bond as an individual, it is agreed that the
death of any such Principal shall not exonerate the Surety from its obligations under this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and
Surety above named, on the day of 2010.
Name of Contractor (Principal)
Name of Surety
Address of Surety
Telephone
Authorized Signature/Title
Authorized Agent Signature
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED
City of Newport Beach -41- DRAFT
Construction Management at Risk Contract - Exhibit F
- -
State of California
County of
ACKNOWLEDGMENT
)Ss.
before me, Notary
Public, personally appeared who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are
subscribed to the within instrument and acknowledged to me that he /she /they executed the
same in his /her /their authorized capacity(ies), and that by his /her /their signatures(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
State of California
County of )Ss.
SEAL
before me, Notary
Public, personally appeared who proved
to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed
to the within instrument and acknowledged to me that he /she /they executed the same in
his /her /their authorized capacity(ies), and that by his /her /their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
-City of Newport Beach
Construction Management at Risk Contract
SEAL
-42- DRAFT
Exhibit F
EXHIBIT G
Labor and Materials Payment Bond
WHEREAS, the City Council of the City of Newport Beach, State of California, by motion
adopted, has awarded to Name of Contractor, hereinafter designated as the "Principal," a
contract for construction of [insert name of project], Contract No. XXXX in the City of Newport
Beach, in strict conformity with the plans, drawings, specifications and other Contract Documents
in the office of the Public Works Department of the City of Newport Beach, all of which are
incorporated herein by this reference.
WHEREAS, Principal has executed or is about to execute Contract No. XXXX and the
terms thereof require the furnishing of a bond, providing that if Principal or any of Principal's
subcontractors, shall fail to pay for any materials, provisions, or other supplies used in,
upon, for, or about the performance of the work agreed to be done, or for any work or labor
done thereon of any kind, the Surety on this bond will pay the same to the extent hereinafter
set forth:
NOW, THEREFORE, We the undersigned Principal, and,
duly authorized to transact
business under the laws of the State of California, as Surety, (referred to herein as "Surety ") are
held firmly bound unto the City of Newport Beach, in the sum of (INSERT CONTRACT DOLLAR
AMOUNT) lawful money of the United States of America, said sum being equal to [equal to
100% of the cost of construction for the Project]; for which payment well and truly to be made, we
bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and
severally, firmly by these present.
THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal or the Principal's
subcontractors, fail to pay for any materials, provisions, or other supplies, implements or
machinery used in, upon, for, or about the performance of the work contracted to be done, or for
any other work or labor thereon of any kind, or for amounts due under the Unemployment
Insurance Code with respect to such work or labor, or for any amounts required to be deducted,
withheld and paid over to the Employment Development Department from the wages of
employees of the Principal and subcontractors pursuant to Section 13020 of the Unemployment
Insurance Code with respect to such work and labor, then the Surety will pay for the same, in an
amount not exceeding the sum specified in this Bond, and also, in case suit is brought to enforce
the obligations of this Bond, a reasonable attorney's fee, to be fixed by the Court as required by
the provisions of Section 3250 of the Civil Code of the State of California.
The Bond shall inure to the benefit of any and all persons, companies, and corporations
entitled to file claims under Section 3181 of the California Civil Code so as to give a right of action
to them or their assigns in any suit brought upon this Bond, as required by and in accordance with the
provisions of Sections 3247 et. seq. of the Civil Code of the State of California.
And Surety, for value received, hereby stipulates and agrees that no change, extension of
time, alterations or additions to the terms of the Contract or to the work to be performed
thereunder or the specifications accompanying the same shall in any wise affect its obligations
on this Bond, and it does hereby waive notice of any such change, extension, of time, alterations
or additions to the terms of the Contract or to the work or to the specifications.
City of Newport Beach -43- DRAFT
Construction Management at Risk Contract Exhibit G
In the event that any principal above named executed this Bond as an individual, it is
agreed that the death of any such principal shall not exonerate the Surety from its obligations
under this Bond.
IN WITNESS WHEREOF, this instrument has been duly executed by the above named
Principal and Surety, on the day of 2010.
Name of Contractor (Principal)
Name of Surety
Address of Surety
Telephone
Authorized Signature/Title
Authorized Agent Signature
Print Name and Title
NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED
City of Newport Beach -44- - DRAFT
Construction Management at Risk Contract Exhibit G
State of California
County of
) ss.
before me, Notary
Public, personally appeared who
proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are
subscribed to the within instrument and acknowledged to me that he /she /they executed the
same in his /her /their authorized capacity(ies), and that by his /her /their signatures(s) on the
instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal. SEAL
Signature
State of California
County of )Ss.
before me, Notary
Public, personally appeared who proved
to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed
to the within instrument and acknowledged to me that he /she /they executed the same in
his /her /their authorized capacity(ies), and that by his /her /their signatures(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
SEAL
City of Newport Beach -45- - - DRAFT
Construction Management at Risk Contract Exhibit G
Page 1 of 14
EXHIBIT H
0 Driver
BUILDERS SINCE 1919
LICENSE NO. 102
Master Subcontract Agreement 101
No. (MSA #)
This Master Subcontract Agreement (the "Agreement ") is executed this «00» day of <<Month >>, 20 <<Yr>> between C.W.
Driver, Inc., a California corporation dba C. W. Driver, (the "Contractor ") and <<Company Name >>, (the "Subcontractor ").
INTRODUCTION
Contractor and Subcontractor agree as follows:
A. That Contractor and Subcontractor wish to enter into this Master Subcontract Agreement to facilitate future projects in
which Contractor may choose to retain Subcontractor to provide materials and perform services. The scope of work and
other project specific terms and conditions (collectively, the "Subcontract Work ") shall be set forth in a work order
( "Work Order') for each specific project.
B. That Contractor may employ Subcontractor from time to time on various constructions projects, as determined by
Contractor in its sole discretion pursuant to Work Orders to be executed in connection with each such project.
C. That this Agreement shall apply to all future subcontract work to be provided by Subcontractor on any project pursuant to
such Work Orders, provided that the terms of this Agreement may be modified by a subsequent written Work Order
signed by both parties varying the terms of this Agreement and only as to the particular Work Order.
D. That this Agreement shall be construed in its broadest terms, such that all provisions of this Agreement shall be given full
effect to the extent possible in light of the specific terms of any subsequent Work Order(s) and work order revisions.
E. That the terms of this Agreement shall be deemed incorporated by reference with respect to any future construction
project pursuant to which Contractor may employ Subcontractor under a Work Order, and for which Contractor has
entered into, or will enter into, a Prime Contract as defined in Paragraph 1. 1.
ARTICLE I: THE SUBCONTRACT DOCUMENTS
1.1 As to any future project in which Contractor employs Subcontractor, the Subcontract Documents (as may be referenced in
this Agreement or in any other Agreement or document) shall consist of (1) this Agreement; (2) the "Prime Contract ",
consisting of the Prime Contract documents as defined therein which may include, by way of example, a form of agreement
between the Owner and Contractor and the other Contract Documents enumerated therein, including, as applicable, the
conditions of the contract (general, special, supplementary and other conditions), drawings /plans, specifications and addenda
effective as of the execution of the Prime Contract, together with addenda or modifications issued subsequent to the
execution of the Prime Contract, whether in existence before or after the execution of this Agreement; and (3) the Work
Order and any documents incorporated therein, These documents form the Subcontract and are fully a part of the
Subcontract as if attached to this Agreement or repeated herein. As to each project that Contractor employs
Subcontractor, the Subcontract represents the entire and integrated agreement between the parties hereto and supersedes
prior negotiations, representation or agreements, either written or oral. In the event of any conflict, inconsistency, or
ambiguity between or among this Agreement, any Work Order, or any amendment or modification to such Work Order,
the terms of the most recently issued of the documents shall take precedence.
CWD Initials — Subcontractor Initials
Page 2 of 14 No. (MSA #)
1.2 Subcontractor shall be furnished copies of the Subcontract and all incorporated documents upon request, but Contractor
may charge Subcontractor for the cost of reproduction and shipping thereof.
ARTICLE 2: MUTUAL RIGHTS AND RESPONSIBILITIES
2.1 Contractor and Subcontractor shall be mutually bound by the terms of this Agreement and the Prime Contract to the
extent that provisions of the Prime Contract apply to the Subcontract Work.. Contractor shall have benefits of all rights,
remedies and redress against Subcontractor that the Owner, under Prime Contract, has against Contractor. Where
provisions of the Prime Contract are inconsistent with provisions of this Agreement, the more stringent of the two shall
govern.
2.2 Contractor may require Subcontractor to include provisions in its agreements with subcontractors or suppliers of any tier
performing portions of the Subcontract Work under each Work Order by which Subcontractor and its subcontractor are
mutually bound, to the extent of the Work to be performed by sub - subcontractors or supplier, assuming toward each
other all obligations and responsibilities that Contractor and Subcontractor assume toward each other and having the
benefits of all rights, remedies and redress each against the other that Contractor and Subcontractor have by virtue of the
provisions of this Agreement. No second tier subcontracts shall be assigned by Contractor to Subcontractor without
Subcontractor's knowledge and consent to the assignment. Subcontractor's acceptance of such assignment shall not be
unreasonably withheld.
ARTICLE 3: CONTRACTOR
3.1 Services Provided by Contractor
3.1.1 To the extent such matters are within the reasonable control of Contractor, Contractor shall cooperate with
Subcontractor in scheduling and performing Contractor's Work to avoid conflict with or interference in the
Subcontract Work and shall provide written responses to submittals made by Subcontractor within a reasonable
time. As soon as practicable after execution of a Work Order, Contractor shall provide Subcontractor with
copies of Contractor's construction schedule of submittals, together with such additional scheduling details as will
enable Subcontractor to plan and perform the Subcontract Work properly. Subcontractor shall be notified of
subsequent changes in the construction and submittal schedules, and additional scheduling details.
3.1.2 Where reasonably practicable, as determined by Contractor on a project -by- project basis, Contractor shall
provide suitable areas for storage of Subcontractor's material and equipment during the course of its performance
of the Subcontract Work, but Contractor shall not responsible for the security of tools, equipment, materials
stored and other property stored, or any of Subcontractor's work in progress, all of which the Subcontractor is
responsible for.
3.1.3 Subcontractor shall be solely responsible to protect Subcontractor's tools, equipment and materials and all of the
Subcontract Work in progress. Subcontractor shall remain responsible for all Subcontract Work in progress until
the Subcontract Work (or relevant portions thereof) are accepted in writing by Contractor.
3.1.4 Except as permitted by Contractor in writing, Contractor's equipment will not be available to Subcontractor.
3.1.5 If the Contractor accepts delivery on behalf of the Subcontractor of any of the Subcontractor's materials, supplies
or equipment, whether or not the Subcontractor is absent from the site, the Contractor will not be liable for any
deficiency or defect in quality, quantity or content of what was delivered.
3.2 Communications
CWD Initials — Subcontractor Initials
Page 3 of 14
No. (MSA #)
3.2.1 Contractor shall make available to Subcontractor information that materially affects each Work Order, including
information that becomes available to Contractor subsequent to execution of each Work Order under this
Agreement.
3.2.2 Contractor shall not give instructions or orders directly to employees or workmen of Subcontractor, except to
persons designated as authorized representatives of Subcontractors.
3.2.3 Contractor, not the Subcontractor, shall have all direct communication with the Owner, Design Architect,
Executive Architect, or any other design consultant, including but not limited to civil, structural, mechanical,
electrical and plumbing engineering consultant.
3.3 Claims
3.3.1 Liquidated damages for delay, if provided for in the Work Order, shall be assessed against Subcontractor to the
extent caused by, or contributed to by Subcontractor, Subcontractor's employees and agents, sub - subcontractors,
suppliers or any person or entity for whose act Subcontractor may be liable.
3.3.2 Actual damages for delay shall be assessed against Subcontractor only to the extent caused or contributed to by
Subcontractor, Subcontractor's employees and agents, sub - subcontractors, suppliers or any person or entity for
whose act Subcontractor may be liable.
3.3.3 No claims for additional compensation or damages for delays, whether caused in whole or in part by any conduct
on the part of Contractor, including, but not limited to, conduct amounting to a breach of this Agreement, or
delays by other subcontractors or Owner, shall be recoverable from Contractor, and the extension of time for
completion as provided in Section 3.3.4 shall be the sole remedy available to Subcontractor; provided, however,
that in the event Contractor obtains additional compensation from Owner on account of delays for which
Subcontractor has made a claim pursuant to this Section 3.3.3, Subcontractor shall be entitled to such portion of
the additional compensation so received by Contractor from Owner as is equitable under the circumstances. In
the event that Contractor prosecutes a claim against Owner for additional compensation for any delay which
includes a pass- through delay claim by Subcontractor, Subcontractor shall cooperate fully with Contractor in the
prosecution thereof and shall pay costs and expenses incurred in connection therewith.
3.3.4 Should Subcontractor be delayed in the prosecution or completion of critical path Subcontract Work by the act,
neglect or default of Owner, Architect or Contractor, or should Subcontractor be delayed waiting for materials, if
required by this Contract to be furnished by Owner or Contractor, or by damage caused by fire or other casualty
for which Subcontractor is not responsible, or by the combined action of the workmen, in no way caused by,
contributed to, or resulting from fault or collusion on the part of Subcontractor, or in the event of a lock -out by
Contractor, then the time herein fixed for the completion of the Subcontract Work shall be extended the number
of days that Subcontractor has thus been delayed, but no allowance or extension shall be made unless a claim
therefore is presented in writing to Contractor within 48 hours of the commencement of such delay, and under
no circumstances shall the time of completion be extended to a date which will prevent Contractor from
completing the entire project within the time allowed Contractor by Owner for such completion.
3.4 Contractor's Remedies
If Subcontractor defaults or neglects to carry out the Subcontract Work in accordance with this Agreement
and/or any Work Order and fails within 48 hours after receipt of written notice from Contractor to commence
and continue correction of such default or neglect with diligence and promptness, Contractor may, without
prejudice to any other remedy Contractor may have, retain others to carry out the Subcontract Work or to make
.good such deficiencies, as the case may be. Subcontractor shall be liable for all losses, costs, expenses, liabilities
and damages, including consequential damages and liquidated damages, and any other damages, liabilities or
CWD Initials — Subcontractor Initials
Page 4 of 14
No. (MSA #)
expenses recoverable under applicable law, sustained by Contractor, or for which Contractor may be liable to
Owner or any other parry because of Subcontractor's default. Contractor may deduct all associated costs thereof
from the payments then and thereafter due Subcontractor.
ARTICLE 4: SUBCONTRACTOR
4.1 Execution and Progress of the Work
4.1.1 Subcontractor shall cooperate with Contractor in scheduling and performing the Subcontracts Work so as to
avoid conflict, delay in or interference with the remaining Prime Contract work of Contractor, other
subcontractors, or the work of the Owner's own forces or Owner's separate contractors. Under each Work
Order, Subcontractor shall, (1) provide Contractor with scheduling information and a proposed schedule for
performance of the Subcontract Work in a form acceptable to Contractor, (2) conform to Contractor's progress
schedules and all revisions or changes made thereto, (3) prosecute the Subcontract Work in a prompt and diligent
manner in accordance with Contractors progress schedules without delaying or hindering Contractor's work or
the work of other contractors or subcontractors, (4) coordinate the Subcontract Work with that of all other
contractors, subcontractors, suppliers and /or materialmen of the Contractor, in a manner that will facilitate the
efficient completion of the entire work and (S) in the event Subcontractor fails to maintain its part of the
Contractor's schedule, it shall, without additional compensation, accelerate the work as Contractor may direct
until the Subcontractor's Work is compliant with such schedule.
4.1.2 Contractor shall have complete control of the premises on which the work for each Work Order is to be
performed and shall have the right to decide the time and order in which various portions of the work shall be
installed and the relative priority of the Subcontract Work with the work of other subcontractors, and, in general,
all other matters pertaining to the timely and orderly conduct of the work of all subcontractors on the project job
site.
4.1.3 Subcontractor shall pay for, prepare and promptly submit all shop drawings, product data, samples and similar
submittals required by the Subcontract after receipt of notice to proceed under the Work Order. Subcontractor
shall furnish all as -built drawings, operations manuals and warranties related to his trade within the time frame
defined in the Prime Contract. Delivery of such as -built drawings, operations manuals and warranties shall be a
condition precedent to final payment.
4.1.4 Subcontractor shall submit to Contractor in no more than seven (7) days after receipt of Work Order, a schedule
of values (the Schedule of Values ") allocated to the various parts of the Subcontract Work, aggregating the
Subcontract Sum, as set forth in the Work Order, made out in such detail as Contractor or the Owner may
reasonably require, and supported by such evidence as Contractor may direct. In applying for payment,
Subcontractor shall submit statements based upon the Schedule of Values approved by Contractor.
4.1.5 Subcontractor shall furnish to Contractor periodic progress reports on the Subcontract Work as reasonably
specified by Contractor, including information on the status of material and equipment that may be in the course
of preparation or manufacture.
4.1.6 Subcontractor agrees that the Contractor, Owner, Architect, and other Design Consultants, will have the
authority to reject work that does not conform to the Prime Contract documents or the Subcontract documents.
The Architects' or other Design Consultants' decision on matters relating to aesthetic effect shall be final if
consistent with the intent expressed in the Contract Documents.
4.1.7 Subcontractor shall pay for materials, equipment and labor used in connection with the performance of the
Subcontract Work through the period covered by each progress payment received from Contractor, and shall
furnish satisfactory evidence to verify compliance with the above requirements.
CWD Initials — Subcontractor Initials
Page 5 of 14
No. (MSA #)
4.1.8 Subcontractor shall take necessary precautions to protect properly the work of other subcontractors from
damage caused by operations under each Work Order. Failure to provide such protection will obligate the
Subcontractor to pay the cost of any damage to work by others.
4.1.9 Subcontractor shall cooperate with Contractor, other subcontractors and the Owners' own forces whose work
might interfere with the Subcontract Work. Subcontractor shall participate in the preparation of coordinated
drawing in areas of congestion, specifically noting and advising Contractor of potential conflicts between the
Subcontract Work and the work of Contractor, other subcontractors or the Owners own forces.
4.1.10 Whenever the Subcontractor is performing work on the site, the Subcontractor shall submit daily reports to the
Contractor, no later than 9:00 a.m., indicating the number of personnel working on the site that day, along with a
description of activities, locations and equipment used in the conduct of the work.
4.1.1 1 The Subcontractor shall employ labor satisfactory to the Contractor. Subcontractor shall remove or cause to have
removed from the project any employee or employees considered unsatisfactory by the Contractor.
4.2 Laws, Permits, Fees and Notices
4.2.1 Subcontractor shall give notices and comply with laws, ordinances, rules, regulations and orders of public
authorities bearing on performance of the Subcontract Work. Subcontractor shall secure and pay for permits and
governmental fees, licenses and inspections necessary for proper execution and completion of Subcontractor's
Work under each Work Order, the furnishing of which is required of Contractor by the Prime Contract.
4.2.2 Subcontractors shall comply with federal, state and local tax laws, labor laws, social security acts, unemployment
compensation acts and workers compensation acts insofar as applicable to the performance of each Work Order.
4.3 Safety Precautions and Procedures
4.3.1 Subcontractor shall take reasonable safety precautions with respect to performance of each Work Order, shall
comply with safety measures initiated by Contractor and with applicable laws, ordinances, rules, regulations and
order of public authorities for the safety of persons or property in accordance with the requirements of the Prime
Contract. Subcontractor shall report to Contractor immediately any injury to an employee or agent of
Subcontractor that occurred at the jobsite.
4.3.2 If hazardous substances of a type of which an employer is required by law to notify its employees are being used
on the site by Subcontractor or its subcontractors of any tier, or by anyone directly or indirectly employed by
them, Subcontractor shall, prior to exposure of any employees on the site to such a substance, give written notice
of the chemical composition thereof to Contractor in sufficient detail and time to permit compliance with such
laws by Contractor, other subcontractors and other employees on site. Subcontractor shall defend, indemnify and
hold harmless Contractor for all expenses, costs and liability incurred by Contractor, the Owner, other
subcontractor and other parties, resulting from Subcontractor's use, disposal of, or other disposition of any
hazardous material at the jobsite.
4.3.3 If Subcontractor encounters material on the site reasonably believed to be asbestos, lead, polychlorinated biphenyl
(PCB) or other hazardous material or wastes that have not been rendered harmless, Subcontractor shall
immediately stop work in the area affected and report the condition to Contractor in writing. The work in the
affected area shall resume only after abatement and removal of the asbestos, lead, polychlorinated biphenyl (PCB)
or other hazardous material or wastes, or when it has been rendered harmless, and a licensed industrial hygienist
has furnished written certification that the area is safe.
4.3.4 Subcontractor shall comply with all safety and security rules and regulations established by the Owner and /or
Contractor.
CWD Initials — Subcontractor Initials
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4.3.5 Subcontractor and /or the employees of the Subcontractor specified by Contractor shall attend all safety meetings
designed by Contractor, which typically will be convened on a weekly basis.
4.3.6 Subcontractors shall provide the Contractor
requirements. A copy of the Subcontractor's
Contractor prior to beginning work.
4.4 Cleaning Up
proof of compliance with CA Safety Law S &198 I and OSHA
Injury and Illness Prevention Program shall be furnished to the
4.4.1 Subcontractor shall clean up the work site daily and shall keep the premises and surrounding area free from
accumulation of waste materials or rubbish caused by operations performed under this Agreement and each Work
Order issued hereunder. Subcontractor shall not be held responsible for unclean conditions caused by other
Contractors or Subcontractors.
4.5 Warranty
4.5.1 Subcontractor warrants to the Owner and Contractor that materials and equipment furnished under each Work
Order will be of good quality and new, unless otherwise required or permitted by the Subcontract documents,
that the Subcontract Work will be free from defects not inherent in the quality required or permitted and free
from hazardous materials or components and that the Work will conform with the requirements of the
Subcontract. Work not conforming to these requirements, including substitutions not properly approved and
authorized, may be considered defective. Subcontractor shall provide warranties and maintenance stock in
accordance with Subcontractor's specific trade sections; Division I or Work Order requirements. The more
stringent requirement shall take precedence.
4.5.2 The warranty period shall begin upon Owners final acceptance of the Prime Contract work, or receipt of
"Certificate of Occupancy ", whichever is later, not at completion of the Subcontract Work. Unless stated
otherwise the warranty period shall be one (1) year.
4.5.3 Subcontractor is also responsible for the costs of repairs /replacement of all other adjacent and /or related work
that is damaged directly or indirectly by defective work done in conjunction with all Work Orders. These
requirements shall survive the final payment of all Work Orders and any contrary language on the Subcontractor's
warranty form shall be deemed null and void.
4.6 Indemnification
4.6.1 To the fullest extent permitted by law, Subcontractor shall defend, indemnify and hold harmless the Owner,
Contractor, Architect, or Design Consultant, or any of their respective consultants, agents, officers, directors and
employees of any of them from and against claims, damages, losses and expenses, including, but not limited to,
attorney's fees, arising out of, relating to or resulting from performance of the Subcontract Work by
Subcontractor, Subcontractor's sub - contractors of any tier, anyone directly or indirectly employed by them, or
anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is
caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge or
otherwise reduce other rights or obligations of indemnity that would otherwise exist as to a party or person
described in this Paragraph 4.6.1 Not withstanding the foregoing, if the Prime Contract contains a broader, or
more stringent, indemnity obligation than that contained in this section, 4.6.1, then the more broad or stringent
indemnification shall apply to the subcontract.
4.6.2 The obligations of Subcontractors under this Paragraph shall not extend to the liability of the Architect, or other
Design Consultant, or their respective consultants, agents and employees of any of them arising out of (1) their
preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs or specifications; or
CWD Initials Subcontractor Initials
Page 7 of 14
No. (MSA #)
(2) the giving of or the failure to give directions or instructions by the Architect, or other Design Consultant, or
their respective consultants and agents and employees of any of them, provided such giving or failure is the primary
cause of the injury or damage.
4.6.3 To the fullest extent permitted by law, Subcontractor shall defend, indemnify and hold harmless the Owner,
Contractor, Architect, or other Design Consultant, or any of their respective consultants, agents and employees of
any of them from and against claims, damages, losses and expense, including, but not limited to, attorney's fees,
arising out of or resulting from mechanic's liens or stop notices filed by Subcontractor, Subcontractor's sub-
contractors (of any tier), anyone directly or indirectly employed by them or suppliers, which arise due to
Subcontractor's failure to make payments due to such claimant.
ARTICLE 5: CHANGES IN THE WORK
5.1 The Owner may make changes in the Work by issuing modifications to the Prime Contract. Upon receipt of such a
modification issued subsequent to the execution of each Work Order, Contractor shall promptly notify Subcontractor of
the modification to the extent it affects the Subcontract Work. Unless otherwise directed by Contractor, Subcontractor
shall not thereafter order materials or perform Work that would be inconsistent with the changes made by such
modifications.
5.2 With respect to each project, Subcontractor may be ordered in writing by Contractor, without invalidating this Agreement
or any Work Order issued hereunder, to make changes in the Subcontract Work within the general scope of each Work
Order consisting of additions, deletions or other revisions, including those required by modifications to the Prime Contract
issued subsequent to the execution of this Agreement and each Work Order. Subcontractor, prior to the commencement
of such changed or revised Work, shall, if affected thereby, submit promptly to Contractor a written request for
adjustment to the Subcontract Sum and Subcontract Time for such a revised work in a manner consistent with
requirements of the Subcontract Documents.
5.3 In the event Contractor and Subcontractor cannot agree on the value of or time extension due as a result of a change to
the Subcontract Work, Subcontractor shall proceed with and timely prosecute the change as directed in writing by
Contractor. Once Subcontractor receives Contractor's written direction, Subcontractor is solely responsible for timely
performance of the Subcontract Work as modified by the written direction, the dispute to be submitted for resolution in
accordance with Article 6.
ARTICLE 6: ARBITRATION
6.1 Any controversy or claim between Contractor and Subcontractor arising out of or related to this Agreement, or to any
Work Order or the breach thereof, shall be resolved by arbitration which shall be conducted in the same manner and
under the same procedure as provided in the Prime Contract with respect to claims between the Owner and Contractor,
except that a decision by the Architect, or other Design Consultant (if applicable), shall not be a condition precedent to
arbitration. If the Prime Contract does not provide for arbitration or fails to specify the manner and procedure for
arbitration, disputes under this Subcontract shall be resolved in accordance with the Construction Industry Arbitration
Rules of the American Arbitration Association currently in effect unless the parties mutually agree otherwise. The
arbitration proceedings shall be in the county where the project is located, unless the parties mutually agree otherwise.
6.2 Except by written consent of the person or entity sought to be joined, no arbitration arising out of or relating to this
Agreement or any Work Order shall include, by consolidation or joinder or in any other manner, any person or entity not
a parry to this Agreement under which such arbitration arises, unless it is shown at the time the demand for arbitration is
filed that (1) such person or entity is substantially involved in a common question of fact or law; (2) the presence of such a
person or entity is required if complete relief is to be accorded in the arbitration, (3) the interest or responsibility of such
person or entity in the matter is not insubstantial. This Agreement to arbitrate and any other written agreement to
CWD Initials — Subcontractor Initials _
Page 8 of 14
No. (MSA #)
arbitrate with an additional person or persons referred to herein shall be specifically enforceable under applicable law in any
court having jurisdiction thereof. -
6.3 Contractor shall give Subcontractor prompt written notice of any demand received or made by Contractor for arbitration
if the dispute involves or relates to the Subcontract Work. Contractor shall consent to inclusion of Subcontractor in an
arbitration proceeding whether by joinder, consolidation or otherwise, if Subcontractor requests in writing to be included
within ten (10) days after receipt of Contractor's notice.
6.4 The award rendered by the arbitrator or arbitrators shall be final, and judgments may be entered upon it in accordance
with applicable law or in any court having jurisdiction thereof.
6.5 This Article 6 shall not be deemed a limitation of rights or remedies that Contractor or Subcontractor may have under
federal law, under states mechanics' lien laws or under applicable labor or material payment bonds unless such rights or
remedies are waived by the Subcontractor.
ARTICLE 7: TERMINATION, SUSPENSION OR ASSIGNMENT
OF THE SUBCONTRACT
7.1 Termination by Contractor, Other Assurances
7.1.1 If Subcontractor fails or neglects to carry out the Subcontract Work in accordance with the Subcontract
documents or otherwise to perform in accordance with this Agreement or any Work Order issued hereunder and
fails within forty -eight (48) hours after receipt of written notice to commence and continue correction of such
default or neglect with diligence and promptness, the Contractor may without prejudice to any other remedy
Contractor may have, terminate the Subcontract and finish Subcontractor's Work by whatever method
Contractor may deem expedient. If the unpaid balance of the balance of the Subcontract Sum for the Subcontract
Work actually completed by Subcontractor exceeds all direct and associated expenses incurred by Contractor in
finishing Subcontractor's Work, such excess shall be paid to Subcontractor, but if such expenses exceed such
unpaid balance, Subcontractor shall promptly pay the difference to Contractor.
7.1.2 Notwithstanding other provisions in this Agreement or in any Work Order, Contractor reserves the right to
require that on any project for which Subcontractor is employed, Contractor may require Subcontractor to
provide Contractor with additional assurances as to Subcontractor's performance under any Work Order. Such
additional assurances may include, without limitation, providing of additional guarantees by financially responsible
parties, posting of additional performance bonds, providing updated financial information, posting collateral,
distribution of funds through joint check, increased retention and providing proof of payment as to
Subcontractor's employees, sub - subcontractors, material and equipment suppliers, and other creditors. Failure of
Subcontractor to comply promptly with Contractor's request for additional assurances shall constitute a material
breach of this Agreement and each Work Order issued hereunder.
7.1.3 Contractor may at any time and for any reason terminate Subcontractor's services and work at Contractor's
convenience. Cancellation shall be by service of written notice to Subcontractor's place of business.
7.1.3.1 Upon receipt of such notice, Subcontractor shall, unless the notice directs otherwise, (1) immediately
discontinue the work and placing of orders for - materials, facilities and supplies in connection with the
performance of the Subcontract Work, (2) make every reasonable effort to procure cancellation of all
existing orders or contracts upon terms satisfactory to Contractor or, at the option of Contractor, give
Contractor the right to assume those obligations directly, including all benefits to be derived there from.
Subcontractor shall thereafter do only such work as may be necessary to preserve and protect the work
already in progress and to protect material and equipment on the job site or in transit thereto.
CWD Initials _ Subcontractor Initials
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No. (MSA #)
7.1.3.2 Upon such termination, Subcontractor shall be entitled to payment in accordance with Article I I only as
follows: (1) the actual cost of the Subcontract Work completed in conformity with this Agreement; plus,
(2) such other costs actually incurred by Subcontractor as are permitted by the prime contract and
approved by Owner; plus (3) fifteen percent (15 %) of the cost of the work referred to in item (1) above
for overhead and profit. There shall be deducted from such sums as provided in this subparagraph the
amount of any payments made to Subcontractor prior to the date of the termination of this Agreement.
In no event shall payment due hereunder exceed the amount due for approved units of work or
percentage of completion. Subcontractor shall not be entitled to any claim or claim of lien against
Contractor or Owner for any additional compensation or damages in the event of such termination and
payment.
7.2 Assignment of the Subcontract
7.2.1 In the event of termination of the Prime Contract by the Owner, Contractor may assign the Work Order issued
under this Agreement to the Owner, with the Owner's Agreement, subject to the provisions of the Prime
Contract.
7.2.2 Subcontractor shall not assign the Work of this Agreement or any Work Order issued hereunder without the
written consent of Contractor, nor subcontract the whole of the Subcontract Work without written consent of
Contractor, which consent may be granted in Contractor's sole and absolute discretion.
ARTICLE 8: THE WORK OF THIS SUBCONTRACT
8.1 With respect to each project, Subcontractor shall execute the Subcontract Work described in the Subcontract documents
and each Work Order, including all labor, materials, equipment, services and other items required to complete such
portion of the Work, except to the extent specifically indicated in the Subcontract Documents and each Work Order to be
the responsibility of others.
8.2 In the event of any dispute between Contractor and Subcontractor over the scope of Subcontractor's work under the
Contract Documents, Subcontractor will not stop work but will prosecute the work diligently to completion, and the
dispute may be submitted for resolution in accordance with Article 6.
ARTICLE 9: DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION
9.1 Subcontractor's date of commencement is the date from which the contract time defined in the Work Order is measured.
The date of commencement shall be identified in each Work Order; if no date is stated in the Work Order then the date
of commencement shall be the date of this Agreement, as first written above.
9.2 The Work under each Work Order shall be substantially completed not later than the date or dates indicated in the Work
Order of the specific project, subject to adjustments of the Subcontract Time as provided in the Subcontract documents. If
the Subcontractor fails to complete the Work or any portion thereof on schedule, Subcontractor shall be liable to
Contractor for resulting damages, expenses and costs.
9.3 Time is of the essence of this Agreement and each Work Order issued hereunder.
9.4 No extension of time will be valid without contractor's written consent after claim made by Subcontractor in accordance
with Paragraphs 3.3.3, 3.3.4 and 5.2.
CWD Initials Subcontractor Initials
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ARTICLE 10: SUBCONTRACT SUM
No. (MSA #)
10.1 With respect to each project, Contractor shall pay Subcontractor for performance of Subcontractor the Subcontract Sum
as specified in the Work Order, subject to additions and deductions as provided in the Subcontract Documents.
ARTICLE 11: PROGRESS PAYMENTS
11.1 Based upon application for payment submitted to Contractor by Subcontractor on C.W. DRIVER Invoice form,
corresponding to the Applications for Payment submitted by Contractor to the Owner, Architect or other Design
Consultant, and Certificates for Payment issued by the Owner, Architect, or other Design Consultant, Contractor shall
make progress payments on account of the Subcontract Sum to Subcontractor as provided below and elsewhere in the
Subcontract documents and the Work Order.
11.2 Except as specifically provided differently in the Work Order or in the respective Prime Contract, the period covered by
each application for payment shall be one calendar month ending on the last day of the month, or as follows: (1) Payments
will be made monthly on progress estimates as approved by Contractor covering ninety percent (90%) of the value of the
Subcontract Work completed by Subcontractor to the end of the previous month, such payment shall be made ten (10)
working days after Contractor receives payment for such Work from the Owner; (2) Payment of the balance of ten
percent (10 %) owing under each Work Order shall be made within ten (10) working days after payment has been received
by Contractor; (3) If Contractor makes payment to Subcontractor by the tenth (W) of the month following application for
payment a two percent (2q) discount will be applied should Subcontractor request and C.W. DRIVER agree to the early
payment; (4) Provided that notwithstanding the foregoing, no progress payment or final payment shall be due or payable
until Subcontractor furnishes Contractor with Statutory Lien Releases showing (a) in the case of a progress payment, that
all accounts incurred by Subcontractor in the performance of this Agreement and each Work Order issued hereunder up
to the end of the previous months have been paid, and (b) in the case of a final payment that all accounts incurred by
Subcontractor in the performance of each Work Order have been paid, or stating the particulars of any accounts still
remain unpaid; (5) Subcontractor hereby authorizes Contractor to pay any unpaid accounts out of monies otherwise owed
to Subcontractor; the amount of any account in dispute or any account not disclosed by Subcontractor but of which
Contractor has knowledge may be retained by Contractor pending determination of the matter; and (6) Performance by
Subcontractor in accordance with the requirements of the Subcontract Documents shall be a condition precedent to the
Contractor's obligation to make any payments to Subcontractor. Subcontractor shall submit all "Conditional Releases" as a
condition precedent to progress payment and provide "Unconditional Waivers and Releases Upon Progress Payment"
within one (1) week of progress payment from Contractor. These releases are to be on C.W. DRIVER forms.
Subcontractor shall also submit as precedent to progress payment evidence that contributions to all relevant Union Trust
Funds are not delinquent.
11.3 Substantial Completion
11.3.1 When Subcontract Work or a designated portion thereof is substantially complete and in accordance with the
requirements of the Work Order and the Prime Contract, Contractor shall, upon application by Subcontractor,
make prompt application for payment for such Work (subject in every case to the right of Contractor to retain
such additional amounts to pay for claims under any mechanic's liens or other claims). Within ten (10) days
following receipt of payment covering such substantially completed Work, Contractor shall, to the full extent
allowed in the Prime Contract, make payment to Subcontractor, deducting any portion of the funds for
Subcontractor's Work withheld in accordance with the Certificate for Payment issued by the Owner, Architect or
other Design Consultant to cover costs of items to be completed or corrected by Subcontractor. Such payments
to Subcontractor shall be the entire unpaid balance of the Subcontract Sum if a full release of retention is allowed
under the Prime Contract for the Subcontract Work prior to completion of the entire project. If the Prime
Contract does not allow for a full release of retention, then such payments shall be an amount that, when added to
the previous payment to Subcontractor, will reduce the retention on Subcontractor's substantially completed
Work to the same percentage as that on Contractors Work covered by the Certificate for Payment.
CWD Initials — Subcontractor Initials
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ARTICLE 12: FINAL PAYMENT
No. (MSA #)
12.1 With respect to each Work Order, final payment, constituting the entire unpaid balance of the Subcontract Sum, shall be
made by Contractor to Subcontractor when Subcontractor's Work is fully performed in accordance with the requirements
of the Contract Documents and the Architect, or other Design Consultant, has issued a certificate of completion covering
the whole of the Prime Contract work, unless the Owner consents to making final payment to Subcontractor at an earlier
date upon completion of the Subcontract Work.
12.2 Before issuance of the final payment, Subcontractor, if required and in addition to the requirements of Section 1 1.2, shall
submit evidence satisfactory to Contractor that all payrolls, bills for materials and equipment and all known indebtedness
connected with Subcontractor's Work has been satisfied.
ARTICLE 13: INSURANCE AND BONDS
13.1 Subcontractor shall purchase and maintain insurance in accordance with the Prime Contract and Subcontract Documents,
but in all instances should be at a minimum the following types of coverage and limits of liability:
13.1.1 Prior to beginning work on Work Order, Subcontractor must provide a current Certificate of Insurance for
Commercial General Liability insurance naming Contractor and Owner and such other parties as may be
indentified in the Prime Contract as additional insureds, verifying a minimum of One Million Dollars ($1,000,000)
per occurrence / Two Million Dollars ($2,000,000) per project aggregate from an AM Best A- VII rated company,
such policy to include a waiver of subrogation endorsement and primary non - contributory clause; Automobile
Liability insurance for hired, owned and non -owned vehicles in the minimum amount of One Million Dollars
($1,000,000) per occurrence and in the aggregate, and employer's liability /workers' compensation with statutory
limits of coverage and including a waiver of subrogation. All such insurance policies shall be for higher limits of
coverage if specified in the Work Order. No Subcontract Work may commence on any project unless and until
acceptable insurance policies have been received. No "modified occurrence" general liability policies are
acceptable.
13.1.2 On projects where Contractor or the Owner has provided builder's risk or similar insurance, such insurance may
be subject to an amount deductible from the sums otherwise payable there under, and the burden of such
deduction shall be borne by the party responsible for the loss; or if no responsible parry can be determined, by the
party receiving the direct benefit of such insurance.
13.1.3 Where Subcontractor has provided a surety bond in connection with the Work, Subcontractor shall obtain the
written consent of the Surety for all amendments to and increase in the amount under any Work Order as
required by the Surety, and at a minimum where the aggregate increase in the value of the amount under any
Work Order is greater than ten percent (10 %), and shall ensure continued bonding of Subcontractor's obligations
under the Subcontract Documents. When a surety bond has been provided, it is the Subcontractor's
responsibility to include the additional bond premium on all appropriate change requests.
13.2 Coverage shall be maintained without interruption from the commencement of Subcontractor's Work until expiration of
warranty period or any other specific contractual requirement (the later of the two shall govern).
13.3 Certificates of insurance acceptable to Contractor shall be filed with Contractor prior to commencement of
Subcontractor's Work. These certificates and the insurance policies required by this Article 13 shall contain a provision
that coverage afforded under the policies will not be cancelled or allowed to expire until at least thirty (30) days prior
written notice has been given to Contractor. If any of the foregoing insurance coverage is required to remain in force after
final payment, an additional certificate evidencing continuation of such coverage shall be submitted with the final application
for payment required in Article 12. If any information concerning reduction of coverage is not furnished by the insurer, it
shall be furnished by Subcontractor with reasonable promptness according to Subcontractor's information and belief.
CWD Initials — Subcontractor Initials
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13.4 Contractor, if requested, shall furnish to Subcontractor satisfactory evidence of insurance required of Contractor under
Prime Contract,
13.5 Contractor and Subcontractor waive all rights against (1) each other and any of their Subcontractors, sub - subcontractors,
agents and employees, each of the other and (2) the Owner, the Architect, or other Design Consultant, other consultants,
separate contractors, and any of their subcontractors, sub - subcontractors, agents and employees for damages caused by
fire or other perils to the extent covered by property insurance provided under Prime Contract or other property
insurance applicable to the work, except such rights as they may have to proceeds of such insurance held by the owner as
fiduciary, Subcontractor shall require of Subcontractor's sub - subcontractors, agents and employees, by appropriate
agreements, written where legally required for validity, similar waivers in favor of other parties enumerated herein. The
policies shall provide such waivers of subrogation for General Liability and Workers Compensation by endorsement or
otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would
otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or
indirectly, and whether or not the person or entity had an insurable interest in the property damaged.
13.6 Contractor shall promptly, upon request of Subcontractor, furnish a copy or permit a copy to be made of any bond
covering payment of obligations arising under the Subcontract.
13.7 Subcontractor shall provide performance bonds and /or payment bonds in amounts as specifically set forth in each Work
Order.
ARTICLE 14: ADDITIONAL PROVISIONS
14.1 All Work Orders will include, but are not necessarily limited to, the following conditions:
14.1.1 Subcontractor shall pay all applicable taxes, including the city business tax for Subcontractor's business.
14.1.2 Contractor shall provide the general building permit; Subcontractor shall be responsible for any supplemental
permits required for their trade, calling for inspection of Subcontractor's Work notifying the Contractor of all
scheduled inspections, and being present for such inspections.
14.1.3 Subcontractor shall provide all scaffolding and hoisting required for the performance of the Subcontract Work.
Costs for temporary removal and replacement of field obstructions to accommodate scaffolding, rigging or hoisting
is the responsibility of the Subcontractor.
14.1.4 Subcontractor shall pay for all testing and inspections required for the Subcontract Work that is not specifically
provided by the Owner.
14.1.5 Subcontractor shall inform the field superintendent a minimum of (3) days in advance of any deliveries to the site.
14.1.6 Subcontractor is responsible for and shall obtain OSHA permits and comply with all OSHA codes and regulations
related to Subcontractors work.
ARTICLE 15: MISCELLANEOUS PROVISIONS
15.1 Where reference is made in this Agreement to a provision of the Work Order or another Subcontract Document, the
reference refers to that provision as amended or supplemented by other provisions of the Subcontract documents.
15.2 Each of the parties acknowledge that it has been represented by independent counsel of its choice throughout all
negotiations that have preceded the execution of this Agreement and that has executed the same with consent and upon
CWD Initials — Subcontractor Initials
Page 13 of 14 No. (MSA #)
the advice of said independent counsel. Each party and its counsel cooperated in the drafting and preparation of this
Agreement and the documents referred to herein. Accordingly, any rule of law, including, but not limited to California Civil
Code Section 1654 or any legal decision that would require interpretation of any ambiguities in this Agreement against the
party that drafted it, is not applicable and is hereby expressly waived.
15.3 Each party hereto shall cooperate with the other party and shall take such further action and shall execute and deliver such
further documents as may be necessary or desirable in order to carry out the provisions and purposes of this Agreement.
15.4 Except as expressly authorized in this Agreement, neither party to this Agreement has the right to represent or hold itself
out to the public as acting as an agent for the other party. Neither patty to this Agreement has the right to conduct any
business or enter into contracts on behalf of the other party or bind the credit of the other party or in any way operate its
business under trade names, trademarks, service marks or other business insignias of the party without the prior written
consent of that party. Contractor and Subcontractor shall each serve as independent contractor as to one another and not
as principal and agent as to one another.
15.5 Contractor and Subcontractor each acknowledges to the other that it has the right and authority to enter into this
Agreement, that the consent of no other party is necessary and it has no restrictions on entering into this Agreement.
Furthermore, Contractor and Subcontractor each represent to the other that the person signing this Agreement on behalf
of that party has the right and authority to enter into this Agreement on behalf of that party and that the execution of this
Agreement by that party will not violate any other agreement or arrangement to which that party is obligated.
15.6 This Agreement, together with the other Subcontract Documents referenced herein, sets forth the entire understanding of
the parties with respect to the subject matter hereof, supersedes all existing oral or written agreements between them
concerning such subject matter, and may be modified only by a written instrument duly executed by the party to be
charged, except as otherwise specifically provided for in this Agreement.
15.7 Any waiver by any party of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver
of any other breach of that provision or of any breach of any other provision of this Agreement. The failure of a party to
insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
Any waiver must be in writing.
15.8 If any provision of this Agreement is invalid, illegal or unenforceable, the balance of this Agreement shall remain in effect,
and if any provision is inapplicable to any person or circumstance, it shall nevertheless remain applicable to all other
persons and circumstances.
15.9 The headings in this Agreement are solely for convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
15.10 Any masculine personal pronoun shall be considered to mean the corresponding feminine or Neuter personal pronoun, and
all singular nouns shall be considered to mean the plural form, and vice versa, as the context requires.
15.11 This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
15.12 This Agreement shall be governed by and construed in accordance with the laws of the State in which the work is
performed.
1.5.13 The parties shall bear their own respective attorney's fees incurred in any arbitration proceedings brought under the
Subcontract Work, regardless of the identity of the prevailing party in such proceedings.
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TO CONTRACTOR:
C.W. DRIVER
468 NORTH ROSEMEAD
PASADENA, CA 91 107
No. (MSA #)
TO SUBCONTRACTOR:
<<Company Name>>
<<Address>>
<<City, State, Zip>>
Any notice or other communication given by certified mail or other receipted delivery services shall be deemed given at the
time of certification thereof, except for a notice changing a party's address which shall be deemed given at the time of
receipt thereof. This Agreement is entered into as of the day and year first written above.
CONTRACTOR
C. W. DRIVER
BY:
<<Name>>
<<Title>>
Date:
License Number: 102
SUBCONTRACTOR
<<Company Name>>
BY:
Print Name:
Title:
Date:
License Number:
License Classification:
CWD Initials _ Subcontractor Initials
C.river
eUlLf)J RN SIAt F 1919
Mass Excavation
Suer aoy
04/19/10
Newport Beach Civic Center and Park
Newport Beach, CA
Printed: 20- Apr -10
Estimate No.:
#87101
Square Feet:
122,295
Months On -Site:
25.0
Includes Addenda:
NIA
Estimator:
Ros,
01 21 00
RG,BF,TF,VR
* Spec No
Seq
Description
Notes
Mass Ex Percent Cost per
Sqft
a' 01 1000
1
Assumptions
01 21 00
2
Allowances
01 81 13
3
Sustainable Design
Requirements -LEED
Registration & Fees
In Soft Costs
4
LEED Enhanced Commissioning
Requirements
In Soft Costs
5
Hazardous Materials Mitigation
In Soft Costs
01 7300
6
Surveying
99,100
01 S000
7
Site Specific Requirements
66,380
01 5000
8
Temp. Barricades & Chain link
Fencing
84,866
01 5000
9
Security
In Soft Costs
01 5000
10
Temp Facilities and Controls
41,330
11
Construction & Final Clean -Up
26,004
12
Tests and Inspection
In Soft Costs
01 74 19
14
Construction waste
management and disposal
2,849
31 0000
15
Site Preparation/ Earthwork
3,366,992
16
Temp Dewatering
12,387
31 50 10
17
Earth Shores & Underpin
1,711,799
31 2500
19
Erosion Control
34,166
32 12 16
20
Asphaltic Paving
15,207
03 33 13
23
Site Walls
140,265
3341 00
30
Drainage
234,947
0661 00
32
Wrought Iron I RFP Fencing
23,596
07 11 16
50
Waterproofing
363,795
01 3233
109
Time Lapse Photography
4,627
SUBTOTAL
6,228,309
XTR- 01000 -t
117
Contingency
8.00%
498,265
PAGE 1
CW Driver
BU I Liz Ii RS SING li 1.414
Mass Excavation
C. W. DRIVER
.StEStam..as:y
04/19110
Spec No Seq Description
Pdmed: 20- Apr -10
Newport Beach Civic Center and Park
Newport Beach, CA Estimate No.:
#07101
Square Feet:
122,295
Months On -Site:
25.0
Includes Addenda:
NIA
Estimator:
RDS,
121
RG,BF,TF,VR
Notes
Mass Ex Percent Cost per
Sqft
XTR- 01001 -P
118
Escalation
DRM -00615 i
119
Sub Bonds
000- 0 1030 -M
120
Preconscruction
000 - 01000 -M
121
Generat Conditions
DRM - 00650 -1
122
Permits & Special Insur.
GCM- 01659-
123
Data Processing 0.25%
DRM - 00653 -
124
Liability Insurance
AAA- 010004
125
Overhead & Fee 3.25%
DRM - 00610 -s
126
Prime Bond - 0.57%
Total Estimate
PAGE 2
6,726,574
C.W. Driver Newport Beach Civic Center and Park
HUMOL•'RS SINCE 1431
SCOPE AND PRICING SHEETS
Primed: 4120110 3:18 PM
P.ePa�ea: 20- Apr -10
#87101
PAGE 1
• a r Pdn,.d: Q01103:18 PM
ri er Newport Beach Civic Center and Park P'e'ared: 20- Apr -10
0(I 1.1.111; R SINICF 1931 #87101
SCOPE AND PRICING SHEETS
04107/10 20- Apr -10
* Budget# Description /Scope of Work Quantity Unit CostlUnit Total
Alternates
Grand Total LEED Enhanced Commission
in soft costs, if required
Alternates
1 Grand Total Hazardous Materials Mitigati
Mass Ex
Layout and monitoring for soil harvesting, site
240.0
cwhr
215.00
51,600
mass excavation and export
Layout for the shoring wall
80.0
cwhr
215.00
17,200
Shoring monitoring
120.0
cwhr
215.00
25,800
Provide as -built drawings
1.0
Isum
4,500
4,500
Alternates
Grand Total
PAGE 2
99,100
99,100
C. W. . DL i Y e Newport Beach Civic Center and Park
Ill.. "I. 1- 1) FI tB SI "'TC F: 1. +1311
SCOPE AND PRICING SHEETS
&+need: M 0110 3:18 PM
PaP,ed: 20- Apr -10
#87101
PAGE 3
C. NV. Drive Printed: 4!20Apr -10
[[��- ��I1�� Newport Beach Civic Center and Park PreParea: 20- Apr -10
AIAIA)Ii IRS SINCV, I9IU #87101
SCOPE AND PRICING SHEETS
PAGE 4
Printed: 41201103:18 PM
M. Driver Newport Beach Civic Center and Park Pr,,Z; 20 -Apr -10
I L 17 V R 9 S i N C F, 1414 487101
SCOPE AND PRICING SHEETS
04107110 20- Apr -10
Budget# Description/Scope of Work Quantity Unit Cost/Unit Total
Grand Total Construction & Final Clean-L
26,004
Mass Ex
Sub Contractor proposal 1.0 Isurn 2,992,289 2,992,289
Additional dirt removal -per changes in 20,000.0 cuyds 7.07 141,400
drawings
Potholing 1.0 Isum 15,180.00 15.180
Site clearing and grubbing included
PAGE 5
Mass Ex
Extra labor to sort through duration of the
project- Recycle
120.0 mnhr 23.74
2,849
2,849
Alternates
iik _sift
Y:NiigiNN:
�m ez
Grand Total Construction waste manaL
2,849
Mass Ex
Sub Contractor proposal 1.0 Isurn 2,992,289 2,992,289
Additional dirt removal -per changes in 20,000.0 cuyds 7.07 141,400
drawings
Potholing 1.0 Isum 15,180.00 15.180
Site clearing and grubbing included
PAGE 5
♦ s Dy� Primed: 4B0/103:18 PM
river e Newport Beach Civic Center and Park Pre,,d: 20- Apr -10
OhHIN.I.RS SI \I(: E. 1914 #87101
SCOPE AND PRICING SHEETS
04/07/10
20- Apr -10
PAGE 6
* Budget#
Description /Scope of Work
Quantity Unit
Cost/Unit
Total
Remove concrete sidewalk
included
Tree protection
included
Remove V' ditch
included
Remove loading dock pavement
included
Remove MacArthur sidewalk and curb
included
Misc. Demolition
included
Rough grade staking from surveyors
included
Clean excavation to face of beams for shoring
contractor
included
Original ground processing
included
Cut and compaction of onsite soils
included
Excavate and dispose of excess cut material
included
Excavate and stockpile for use as topsoil
material gathered in designated areas as
shown on plans
included
Material gathered in designated areas as
shown on plans
included
Cut benches / ramps for shoring sub
4,000.0
cuyds
6.06
24,240
Remove ramps for shoring sub
1,333.3
cuyd
8.08
10,773
Rough grade building pad(s) to ± 0.10 ft.
included
Load, haul -off of drilling spoils
155.6
cuyd
22.00
3,422
Construction water meter
1.0
Isum
2,555.00
2,555
Additional topsoil handling
6.0
mnth
3,765.00
22,590
Traffic control plan
1.0
Isum
3,500.00
3,500
Flagmen, 2 each
2,078.4
mnhr
23.74
49,342
Grade / Gravel for trailers
4,500.0
sgft
4.00
18,000
Grade I Gravel for temporary parking
11,000.0
sgft
4.00
44,000
Street sweeper
320.0
mnhr
110.00
35,200
Additional Mobilization ! demobilization
1.0
Isum
4,500.00
4,500
3,366,992
*
Alternates
iol
Grand Total Site Preparation/ Earthwork
3,366,99 122
PAGE 6
C.W. Driver
Bill FIOPR8 91INCR 1919
04107110
Newport Beach Civic Center and Park
SCOPE AND PRICING SHEETS
pnnl�:
Prepared;
4aOIN) 318 MI
20-Apr- 10
987101
20- Apr -10
Budget#
Description/Scope of Work Quantity Unit
Cost/Unit
Total
Mass Ex
Allowance 32.0 points
387.10
12,387
12,387
Alternates
Grand Total Temp Dewatering
12,387
Mass Ex
Subcontractor Proposal 1.0 Isum
1,683,000
1,683,000
Shoring wall at the MacArthur / parking
garage
Engineering design of soldier pile wall
included
Coal tar epoxy-coated soldier piles
included
Double corrosion protected (DCP) tieback
anchors
included
Wood Lagging to 4 feet below Top of
Finished Slab
included
Nelson studs welded to soldier piles
included
Temporary cable handrail at top of soldier 613.0 Inft
piles
45.00
27,585
Remove cable handrail 613.0 Inft
1.98
1,214
1,711,799
Alternates
... .... ..... ..
Grand Total Earth Shores & Underpin 1,711,799
PAGE 7
C. Driver
Newport Beach Civic Center and Park
13011, t) b. kS 8 1 N C H`,: 1914
SCOPE AND PRICING SHEETS
04/07/10
Prntd
Pr,.&
420110 3:18 PM
20- Apr -10
#87101
20- Apr -10
* Budget# Description /Scope of Work
Quantity Unit
Cost /Unit
Total
+PLO 3RI0-W
Mass Ex
Stabilized construction entrance/exit with
Culvert crossing
included
Install / remove rumble plates
included
Silt fence
included
Fiber rolls
included
Gravel back check dam
included
Geotextile mats
included
Sediment basins install and remove
included
Storm drain inlet protection
included
Earth dikes
included
Hydraulic mulch
included
Rip rap velocity dissipation
included
Terra Mulch with Guar Binder (Hydro seed)
and basic erosion control seed mix
included
Place and maintain gravel bags around
perimeter fence
included
Trash and debries guards
6.0 each
1,287.75
7,727
Run off control
7.0 month
3,777.00
26,439
Monthly visits
included
34,166
* Alternates
Y,r
t tt
R: k vim'
„ < Grand Total Erosion Control
34,166
Mass Ex
Allow to repair AC paving as needed
1.0 allow
15,207.00
15,207
PAGE 8
CA. Drivel ,n,ed: 20-Apr-10 PM
#87101
[�.A� � \`) Newport Beach Civic Center and Park r.ep.rea: 20- Apr -10
8l,' I. I, f31? R S S I ti t; F; 1819 #87101
SCOPE AND PRICING SHEETS
04107/10 20- Apr -10
* Budget# Description /Scope of Work Quantity Unit Cost/Unit Total
Alternates
15,207
Grand Total Asphaltic Paving 15,207
Mass Ex
North Park
Subcontractor proposal
1.0
Isum
97,077.00
97,077
Retaining wall, type A (next to pedestrian
walk) -done during Mass EX
366.0
Inft
Footing
included
Footing rebar
included
CIP Wall
included
Wall rebar
included
Subdrainage perforated pipe surrounded by
drainrock and wrapped in geotextile fabric
366.0
Inft
42.00
15,372
Wall height correction from designer
732.0
sgft
38.00
27,816
140,265
Alternates
.` - , I Grand Total Site Walls 140,265
Mass Ex
Subcontaractor proposal 1.0 Isum 234,947.00 234,947
Install cleanout included
PAGE 9
. NV. �
CC NV r Drive
0G 111 1) FTId5 S I N C K 1911
04/07110
Newport Beach Civic Center and Park
SCOPE AND PRICING SHEETS
Printed:
erep.red:
40- Apr180 PM
20- Apr -10
#87101
20- Apr -10
* Budget#
Description /Scope of Work
Quantity Unit Cost/Unit
Total
SD manhole
included
18" SD
included
6" Solid subdrain
included
6" Perforated subdrain
included
CMP riser
included
Connect to (E) SD
included
18" x 18" Tee
included
Connect to (E) SDMH
included
Connect to (E) catch basin
included
Headwall wl rip rap
included
234,947
Alternates
L .. .. I Grand Total Draina¢e 234,947 1
Mass Ex
Fence at the retaining wall 133.0 Ink 177.42 23,596
23,596
Grand Total WrouLht Iron 11 23,596 1
Mass Ex
Waterproofing at the shoring wall 22,000.0 sqk 9.60 211,176
Add for 2 layers of cement board 22,000.0 sqk 3.04 66,911
PAGE 10
C. W. Driver Newport Beach Civic Center and Park
11tI"I 1.1)R IS SI\;C:E 19111
SCOPE AND PRICING SHEETS
04/07/10
Printed:
Prepared:
4/20/10 3:16 PM
20- Apr -10
#87101
* Budget# Description /Scope of Work
Quantity Unit
Cost/Unit
Total
Seal and reinforce all penetrations in
waterproofing membrane
300.0 each
25.35
7,604
Detail at nelson studs
3,000.0 each
8.00
24,000
Scaffolding
1.0 Isum
15.000.00
15,000
North Park
Waterproofing at the site retaining wall
3,555.0 sgft
11.00
39,105
363,795
Alternates
„ I Grand Total Waterproofing 363,795
Mass Ex
Time lapse photography 6.0 me 771.21 4,627
Alternates
Grand Total Time Lapse Phol
PAGE 11
4,627
4,627
1 I BASE BID
Mm5 E And Hall off
2,790.000
2,922189
3,322,000
2974,238
3.149.00
., s'„ "I
drsqualHl d
.e po .age
dlsqualled
paclogq.,_
dtquallfed
2 Prequalifed for Earrhwork
as
yes
ym
yes
yes
C.W. Driver
yes
yes
no
3 Prequalifed for Shoring Wall (for
ck
combined paages)
yet
Po(ect:
NPBCC
SDBCONTRACTOR COMPAR15ON
SPREADSHEET
y¢s
pRNLOLeS SINCE Im9
no
yes
4 CA pcense current
yes
yes
Prepared By:
Rimma GurcH,
run
yes
mumtvn
5 Per Plans
yes
yes
ycz
Daudi
22-APr-00
yes
"
6 Acknowledge Addendum
yes
yes
yes
yes
yes
yes
Earth Construction &
Crew Inc'
.' 'Slice Co., I.C.
yes
Southern'
I'
Sharma
Dap, Inc: '
yes
Tinker
YWC [ern RIM' : ,
_ ,.Malcolm DNlling-
8 Prevailing Wage!
yes
Mining
yes
Yea
yes
yes
California
Cantm on.
9 Compliance with Proles Schedule
yes
yes
' Con'itr R rs,lnc'
Co Inc:
yes
yes
10 Listed subs
Grading
ycz
yes
II Inzumnm mmplirs wide CWD
requir
yet
Charles Poss
Vince Olson
yes
Tins Hamch.k
yet
-, K nCutler
Vip 1Pac.0
Alden Arc o
'NaNan
^De 1 ers
:Pete Spomry
'NO
Deacripnonl5copebfWoik
(714) 8984326
(32 3) 86410 0 3
(949) 654 <60015
":(949)5516655
(563)6913495
(409)628199910
(949) ^241 =8590
060)489 -0328
c(626)338-0035
1 I BASE BID
2,55).000
2,790.000
2,922189
3,322,000
2974,238
3.149.00
., s'„ "I
drsqualHl d
.e po .age
dlsqualled
paclogq.,_
dtquallfed
2 Prequalifed for Earrhwork
as
yes
ym
yes
yes
yes
yes
yes
no
3 Prequalifed for Shoring Wall (for
ck
combined paages)
yet
yes
yes
yes
yes
y¢s
no
no
yes
4 CA pcense current
yes
yes
yes
yes
run
yes
5 Per Plans
yes
yes
ycz
yes
yes
yes
6 Acknowledge Addendum
yes
yes
yes
yes
yes
yes
) Bid bond included
yes
yet
yes
yes
yes
yes
8 Prevailing Wage!
yes
yes
yes
Yea
yes
yes
9 Compliance with Proles Schedule
yes
yes
yes
yes
yes
yes
10 Listed subs
ycz
yes
II Inzumnm mmplirs wide CWD
requir
yet
yes
yes
yes
yes
yet
12
er cy and multipied by 10.W0
I under parking uu
Alternate Amount
1,890,000
70,000 1 $ 8,201
82.000
no dbnrge
70,000
82,000
799,639
3,404,000
ea, sun
a o
a' f
C.WDri ,er Shoring Wall
BUf LDRRS SHNOR 1019
Project: N PBCC
Prepared By: Rimma Gutnik
Date: 22- Apr -10
SUBCONTRACTOR COMPARISON SPREADSHEET
Prin¢d: 9@/106.1 PM
it
DescriptionlScope of Work (qp
I I BASE BID
1,584,700
1,683,000
1,863,700
2.299,500
2 Pre qualified 9
yes
yes
yes
yes
3 CA License current
yes
yes
yes
yes
4 Per Plans and Specs
yes
yes
yes
yes
5 Acknowledge Addendum
yes
yes
yes
yes
b Bid bond included
yes
yes
yes
yes
7 Prevailing Wage!
yes
yes
yes
yes
8 Compliance with Project Schedule
P I
yes
yes
yes
yes
9 Listed subs
yes
yes
yes
yes
10 Insurance complies with CWD requirements
yes
yes
yes
yes
II Design built
pending confirmation
Page 1 of 2
C.DriyeI Shoring Wall
'RUN LDTikS Sl YCE 1919
Project: NPBCC
Prepared By: Rimma Gutnik
Date: 22- Apr -10
SUBCONTRACTOR COMPARISON SPREADSHEET
Rntm: 41WI0601 PM
Page 2 of 2
UN Driver `omete Wall
UU11,I)CR$ UNCH 111, Protect NPBCC
Prepared By: Rim aGutnik
Date: 22- Anr -10
1 I BASE 01D
Cemen[C¢',
Edda [ruRlon
c
COn truRlon
vvm
il[t
Con[ C Inc
CO rt Rleq
yes
CONSfRUC.
yes
yes
yes
Inc
3 Per Plans and Specs
Co., Inc
yes
concrete
yes
yes
'TION
yes
4 Acknowledge Addendum
yes
yes
yes
yes
yes
yes
yes
s aid bona mdnaea
yes
:COMPANY.:
Yes
Hansel Tato
re
RobeKMOOk
Ck me Mae.fEFF
Y.
CORN!
Yes
StevetiPisBer
Dave TCnnls
Yes
yes
yes
2 Compliance win Prol¢[[ScM1¢dule
_
yes
yes
yes
i.
I
yes
t r,
E gs amed
Descnpc orcl6topc4f WOrk
(909)]500414
yes
1 (714 }5728100
_' 1626) 442A003113
(909)8686012
—,
IRS 1)1743348
„(714)9313600
� )4)6433366
yes
„- (ylq)894A00
1 I BASE 01D
vvm
3 CA License coven[
yes
yes
yrs
yes
yes
yes
y¢s
3 Per Plans and Specs
yes
yes
yes
yes
yes
yes
yes
4 Acknowledge Addendum
yes
yes
yes
yes
yes
yes
yes
s aid bona mdnaea
yes
y¢s
Yes
yes
re
yes
yes
Y.
6 Prereili.,W,.I
Yes
yes
Yes
Yes
yes
yes
yes
2 Compliance win Prol¢[[ScM1¢dule
y¢s
yes
yes
yes
yes
yes
yes
8 LMscl sub,
yes
yes
yea
yes
yes
yes
yes
9 In--. complies wi[F CWDrequir men¢
yes
yea
yes
yn.
yes
Yes
Yes
10
>a9e 1 01 z
C.WDriver concrete Wall
RLU.UF,R651 �(:e 19iv Prajett NPBCC SUB[ONTRA TOR COMPARISON SPREADSHEET
Prepared By: Rimma Gutnik P.�wa. mvmcmm
Pea. ] 0l2
C.W. Driver Undeground Utilities
H I.S1t. 13. @RS s NC, F. 191'}
Project: NPBCC
Prepared By: Rimma Gutnik
Date: 22- Apr -10
42 10 5 :0 pM
Page 1 of 1
City of Newport Beach
BUDGET AMENDMENT
2009 -10
EFFECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates
X Increase Expenditure Appropriations AND
Transfer Budget Appropriations
SOURCE:
from existing budget appropriations
from additional estimated revenues
PX from unappropriated fund balance
EXPLANATION:
This budget amendment is requested to provide for the following:
NO. BA- 10BA -043
AMOUNT: $17,596,307.00
Increase in Budgetary Fund Balance
X Decrease in Budgetary Fund Balance
No effect on Budgetary Fund Balance
To increase expenditure appropriations from the Civic Center Construction Fund unappropriated fund balance to cover
costs associated with construction of the new Civic Center.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Account
410 3605
REVENUE ESTIMATES (3601)
Fund /Division Account
EXPENDITURE APPROPRIATIONS (3603)
Description
Civic Center Construction Fund - Fund Balance
Description
Signed: GJ �/�/jri /jArl'"
Fi I Approval: Administ
Signed:
Approval: City Manager
Amount
Debit Credit
$17,596,307.00
* Automatic
$17,596,307.00
,+- a
Date
Date
Signed:
City Council Approval: City Clerk Date
Description
Division
Number
7410 Civic Center Construction
Account
Number
C1002009 New City Hall /Civic Center
Division
Number
Account
Number
Division
Number
Account
Number
Division
Number
Account
Number
Signed: GJ �/�/jri /jArl'"
Fi I Approval: Administ
Signed:
Approval: City Manager
Amount
Debit Credit
$17,596,307.00
* Automatic
$17,596,307.00
,+- a
Date
Date
Signed:
City Council Approval: City Clerk Date
CITY OF NEWPORT BEACH '#23-
OFFICE OF THE CITY ATTORNEYy'Z1'lo
DATE: April 27, 2010
TO: Honorable Mayor and
Members of the City Council
FROM: Office of the City Attorney
Leonie Mulvihill, Acting City Attorney
Public Works Department
Stephen Badum, Director
MATTER: Civic Center: CW Driver Agreement [A09- 00022]
RE: Agenda Item 23 — Minor Revisions to Construction Manager at Risk
Contract with C.W. Driver
The Office of the City Attorney and City staff request a modification to the language of the
Construction Manager at Risk Contract ( "Contract ") included in Agenda Item 23. We
believe that these modifications are necessitated by risk management concerns and also
are the result of a lower Guaranteed Maximum Price ( "GMP ").
Specifically, the revised GMP is $111,680 less than the GMP contained in the original
Contract distributed to the City Council in the Agenda packet. A revised Exhibit A to the
Contract is attached as Attachment 1 and reflects the revised lower GMP.
A redlined copy of the revised sections to the Contract is attached as Attachment 2 for the
City Council's consideration. A final copy of the revised sections to the Contract is
attached as Attachment 3.
We request and recommend that the City Council approve the revised sections and Exhibit
A to the Contract included as Attachments 1 and 3 in place of those specific sections and
Exhibit A contained in the original Contract distributed as part of the Agenda packet.
Submitted :
'-feoA Mulvihill
Acting City Attorney
G.W. Driver
BCII,DERS SINCE. 1919
April 27, 2010
Mr. Steve G. Badum
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92658 -8915
EXHIBIT A
Re: Newport Beach Civic Center and Park Project
Guaranteed Maximum Price (GMP)
Mass Excavation and Shoring Construction Phase I
C.W. Driver Project Basic Services
Dear Steve:
15615 Alton Parkway
Suite 150
Irvine, CA 92618
Fax 949.261.5167
Telephone 949.261.5 100
C. W. Driver is pleased to submit our Guaranteed Maximum Price Proposal (GMP) for.
a) The Mass Excavation and Shoring Phase of the Newport Beach Civic Center and Park
Project
b) C.W. Driver's Basic Services for the Newport Beach Civic Center and Park Project for on-
site project staff and support facilities for all project construction phases as per current
scope of work identified in the 100% DD set of design documents prepared by the architect,
Bohlin, Cywinski, Jackson (BCJ) dated February 18, 2010 and per C.W. Driver's attached
construction schedule and
For added clarification and detail of our proposed services, please see attached documents. C.W.
Driver is very excited about the opportunity to continue to work with the City of Newport Beach
and look forward to a very successful project.
The Total Phase I Proposal for these services is as follows:
14gN
DeSCnption
1
C.W. Driver Basic Services for Civic Center & Park Project GMP
7,169,255
II
Mass Excavation and Shoring Construction Phase GMP*
6,620,410
Subtotal
13,789,665
III
General Liability Insurance (0.91 %)
125,486
IV
Direct Expenses Allowance for Project Bond (1.0%)
137,897
V
Construction Management Fee (3.25 %)
452,646
TOTAL PHASE I
$14,505,694
- mauaes t,ontractor t,onstruction t_onungency
Los Angeles Irvine Onurio San Diego
Page 1 of 3
AMA
1
Lkense No. 102
Ill' =z.� :. 1 • 1 . S! 1 0Ir•.!1-J
The GMP for this work is based upon the scope of work identified in the Mass Excavation Bid Set of
Drawings by Bohlin, Cywinski, Jackson (BCJ) dated March 17, 2010 including their Addendum #I for
this package issued on March 31, 2010. (Please see attached drawing list.)
C.W. Driver's Project Basic Services
C.W. Driver's Basic Services Proposal of $7,169,255 is a Guaranteed Maximum Price (GMP) for
Basic Services labor and support services through the completion of the construction of the
Newport Beach Civic Center Project as per CWD's attached construction schedule and for the
scope of work identified in BCJ's 10090 Design Development Set of Project Documents and
Specifications dated February 18, 2010. Please see the attached C.W. Driver attachments for a
detailed breakdown of the services included in this proposal.
Basic Services Labor = $5,648,095
Basic Support Services = $1.521.160
Subtotal CWD Basic Services* _ $7,169,255
*Excludes Project Liability Insurance and Project Fee. Please see breakdown on the front of this
proposal for these costs.
Exclusions:
a. Program Management and Preconstruction Services. (See separate CWD Proposal)
b. Monthly Site Utility Consumption Including Site Offices (installation excepted)
c. Project Night Watchman
d. Materials and Soils Testing and Inspection
e. Shuttle Services for Trades and Temporary Parking expenses
f Owner Scope Changes
g. Unknown Subsurface Conditions
h. Building Permit Fees
k Utility Company and Connection Fees
j. Subsequent Construction Phases and Scope of Work not Addressed by the Mass Excavation
Design Package
k Three Upper Most Concrete Retaining Walls at the North Park (only lower wall included)
I. Temporary Access Roads for Emergency Use Vehicles
Please know that we are committed to the total success of this project and look forward to
continuing our relationship with the City of Newport Beach and the Design Teams.
Sincerely,
Bruce Curry
Project Executive
C"
Page 2of3 I.ICF.NSL Nu lo!
C: Darren Mann, CWD
Andy Feth, CWD
Robert Shafer, CWD
William Hahn, CWD
Attachments:
b Mass Excavation Drawing List
b Mass Excavation Phase I Trade Package Summary
* Basic Services GCM List
b Basic Services Labor Matrix
b Construction Schedule
Project Rate Sheet
Cv V L
Page 3 of 3
LICENSE N. 10:
ATTACHMENT 2
Revised Sections to Constriction Manager at Risk Contract In Redlined Form
6.1.1 As of the Effective Date, the City and the CM agree that the Guaranteed Maximum
Price is fourteen million, five six hundred seveateea five thousand and six #wee hundred
ninety -four seveFaty feur dollars ($14.505,694 �), which is inclusive of the Cost of
the Project as respects the bid package(s) identified in Exhibit B, the Fee for Basic
Services, the Direct Expenses and the CM Fee of 3.25 %. CM's Basic Services labor rates
are understood and agreed to be as detailed in Exhibit A.
7.1 Insurance
Without limiting the CM's indemnification of the City, and prior to commencement of work,
the CM shall obtain, provide and maintain as a cost of the work during the term of the
Agreement, a policy or policies of liability insurance of the type and amounts described
below and in a form satisfactory to the City. It is understood and agreed that the cost of
such liability insurance cost shall be deemed to be 0.91 % of the total of the Cost of the
Work and Basic Services.
coverage normally orovided by any insurance. Specific reference to a given coverage
feature is for purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of other coverage,
or a waiver of any tvoe. Insurance coverage and limits provided by the CM and Contractor
and available or applicable to this Agreement are intended to apply to the full extent of the
policies. Nothing contained in this Agreement or any other agreement relating to City or its
operations limits the application of such insurance coverage.
The City may elect to implement an Owner Controlled Insurance Program (OCIP). An
OCIP is a series of insurance policies issued by one or more companies to cover the
purchase certain insurance coverages covering on -site construction activities for enrolled
and eligible Contractors which may include workers' compensation, general liability, and
excess liability coverage. All other insurance terms and conditions referenced below and
not amended in any addendum to this Agreement remain.
In the event that the City elects to after the insurance requirements set forth in this Section
7.1. the CM shall be entitled to an adjustment to the Guaranteed Maximum Price in
accordance with Section 6.1.12.
7.1.4(b) Coverage Requirements
General Liability Coverage. The CM shall maintain commercial general liability insurance
in an amount not less than $25,000,000 per occurrence for bodily injury, personal injury,
and property damage, including without limitation, contractual liability. If commercial
general liability insurance or other form with a general aggregate limit is used, either the
general aggregate limit shall apply separately to the work to be performed under the
Agreement, or the general aggregate limit shall be at least twice the required occurrence
limit.
ATTACHMENT
Revised Sections to Constriction Manager at Risk Contract in Final Form
6.1.1 As of the Effective Date, the City and the CM agree that the Guaranteed Maximum
Price is fourteen million, five hundred five thousand and six hundred ninety-four dollars
($14,505,694), which is inclusive of the Cost of the Project as respects the bid package(s)
identified in Exhibit B, the Fee for Basic Services, the Direct Expenses and the CM Fee of
3.25 %. CM's Basic Services labor rates are understood and agreed to be as detailed in
Exhibit A.
7.1 Insurance
Without limiting the CM's indemnification of the City, and prior to commencement of work,
the CM shall obtain, provide and maintain as a cost of the work during the term of the
Agreement, a policy or policies of liability insurance of the type and amounts described
below and in a form satisfactory to the City. It is understood and agreed that the cost of
such liability insurance cost shall be deemed to be 0.91 % of the total of the Cost of the
Work and Basic Services.
Requirements of specific coverage features or limits contained in this Article are not
intended as a limitation on coverage, limits or other requirements, or a waiver of any
coverage normally provided by any insurance. Specific reference to a given coverage
feature is for purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of other coverage,
or a waiver of any type. Insurance coverage and limits provided by the CM and Contractor
and available or applicable to this Agreement are intended to apply to the full extent of the
policies. Nothing contained in this Agreement or any other agreement relating to City or its
operations limits the application of such insurance coverage.
The City may elect to implement an Owner Controlled Insurance Program,(OCIP). An
OCIP is a series of insurance policies issued by one or more companies to cover the
enrolled Contractor and eligible subcontractors of all tiers for a given contract. If the City
elects to implement an OCIP, it will issue an addendum to this Agreement and will
purchase certain insurance coverages covering on -site construction activities for enrolled
and eligible Contractors which may include workers' compensation, general liability, and
excess liability coverage. All other insurance terns and conditions referenced below and
not amended in any addendum to this Agreement remain.
In the event that the City elects to after the insurance requirements set forth in this Section
7.1, the CM shall be entitled to an adjustment to the Guaranteed Maximum Price in
accordance with Section 6.1.12.
7.1.4(b) Coverage Requirements
General Liability Coverage. The CM shall maintain commercial general liability insurance
in an amount not less than $25,000,000 per occurrence for bodily injury, personal injury,
and property damage, including without limitation, contractual liability. If commercial
general liability insurance or other form with a general aggregate limit is used, either the
general aggregate limit shall apply separately to the work to be performed under the
Agreement, or the general aggregate limit shall be at least twice the required occurrence
limit.
Newport Beach Civic Center
Cost Timeline
2n0R xkr3 2010 1011 2012
Dl Cotnp4DDpt 1 $250.000
Pre - Design (oncept Belmement
Sshemat¢ Desgn B Deagn Development, SD 8 DD
Construction Documents. CD
Construction Support, SD
Geotechmul Dngn
PS12ES 1 %±_•nest MINI - VCpdo Team
Bolen Management Pre Design
Pro1M Management SO d DD
Wolect Management co
SQlI5TRVCII.ON
Balsa Semces /General mmmom
D.,m Eapenses
Construction Mngt Pee (profit 8 overhead) (3 25 %)
GMP Phase 7 - Masi f.cavation 9 Shormg Wall
GMP Phase 2 - Depgn Assist /9wW Parkmg Strunure
GMP Phase 3 - Gty hall. 11brary a Park
tiDwry Eapanuon
City Hall Buddmg
fixtures, Turnnhmgs, 6 POulpment Ill
Nt al - San Miguel Ped Overaossing
Based upon Schemnn Design Rbmete d
$105,000," for Construnron
g
rd
I
u� u
5, o
bi b
�i
i
J"2i -23 +73-11D
Correct
[omerv4the
Pro)ettbn
Optlmistk
Did Ulnsate
east use 30%
conti my 17%)
UwsW, best use
7S % City /2S %CWD
5750,000
- 5250,000
SI4,M2,3IS
$435.744
$14.442,515
S44S,744
$14,442,S1S
$435,764
$3IK 11
S U6,611
53,106,611
$105,000.000
S94,SOoOOD
$g9,Ae,750
$2,0010.000
S2,000,000
$2.0001000
$125,904,690
SIIS.404,690
$110.443,440
$2,500,000
51000
$2,SOO,OOO
$1.0010,000
$24540AIN
$1 000
$129,444,690
$11t,9W.690
$113,941,440