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HomeMy WebLinkAbout16 - Back Bay Science Center• CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 16 February 28, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Stephen G. Badum 949 - 644 -3311 sbadum@city.newport-beach.ca.us SUBJECT: BACK BAY SCIENCE CENTER - AWARD OF CONTRACT NO. 3460, APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH DOUGLAS E. BARNHART, AND AMENDMENT NO. 3 TO PROFESSIONAL SERVICES AGREEMENT WITH GAIL PICKART RECOMMENDATIONS: 1. Approve the plans and specifications. 2. Award or reject the bid packages for Contract No. 3460 as follows: Bide Pk Descnp ion_ Low Bidder Contract Amount Recd Action*:: 1 Sitework, Grading & Paving So. Cal. Grading $682,000.00 Award 2 Irrigation UP Landscape Maint $65,000.00 Award 3 Concrete & Masonry Romero General Const Corp $998,000.00 Award 4 Structural Steel Junior Steel Co. $86,940.00 Award 5 Rough Carpentry Gamut Framing Co $702,000.00 Award 6 Casework Dow Diversified $129,127.00 Reject 7 Sheet Metal, Skylights & Roofing Lance & Associates $151,000.00 Award 8 Doors, Frames, Windows, Hardware, Gypsum Board, Acoustical & Painting Standard Drywall $519,357.00 Award 9 Flooring Donald M. Hoover $10,000.00 Reject 10 Specialties Inland Company $143,600.00 Reject 11 Plumbing & Site Utilities Continental Plumbing, Inc. $517,936.00 Award 12 Fire Sprinklers J.G. Tate Fire Prot $78,220.00 Award 13 HVAC Control Air $175,000.00 Award 14 Electrical S.H. Fish Electric $422,500.00 Award 15 Steel Laboratory Casework Kewaunee $71,080.00 Award 16 1 Tile Inland Pacific Tile $69,000.00 Reject for the Total Bid Price of $4,469,033, and authorize the Mayor and the City Clerk to execute the contracts. Back Bay Science Center —Award of Contract No. 3640, February 28, 2006 Page: 2 3. Establish an amount of $245,000 to cover the cost of unforeseen work; an amount of $260,000 to cover contracts for items to be re -bid; and an amount of $212,900 for professional support services, preconstruction services and relocation costs to move existing modular units. 4. Approve a Construction Manager at Risk Agreement with Douglas E. Barnhart, Inc. authorizing compensation for an amount not to exceed $574,631 and authorize the Mayor and City Clerk to execute the Agreement. 5. Approve Amendment No. 3 to Professional Services Agreement with Gail P. Pickart for project management during construction for a not to exceed amount of $45,000 and authorize the Mayor and City Clerk to execute the Amendment. 6. Approve Budget Amendment in the aggregate amount of $5,806,564 from Account Numbers 010 -3605 ($1,661,164), 230 -3605 ($311,000), 457 -4879 ($112,000), 457 - 4879 -1 ($615,400), 457 -5927 ($69,000), 457 - 4911($1,230,000), 457 -4930 ($308,000), 457 -4929 ($600,000), 457 -4940 ($400,000), 457 -4928 ($500,000) to Account No. 7457- C5100661. 7. Authorize the City Manager to enter into a Funding Acceptance and Recognition Agreement with miocean for signage and an entryway monumentation that recognizes miocean's $500,000 contribution to the BBSC. • BACKGROUND: The Back Bay Science Center (BBSC) proposed for construction on Shellmaker Island in the Upper Newport Bay Ecological Reserve is a multi -party project that has been under consideration for several years. The parties involved in planning the BBSC include the California Department of Fish and Game (CDFG), the County of Orange Health Care Agency (County), the University of California at Irvine (UCI), the City of Newport Beach (City), the California Coastal Commission (CCC), the Newport Bay Naturalists & Friends (NBNF), and miocean, a non - profit foundation. Not only is the construction of the Back Bay Science Center complex in its breadth of project partners, staff proposes the use of a new project delivery method for the City -- Construction Manager at Risk. This report is presented in several sections including: • Project Description • Chronology of Activities and Previous City Council Actions • Discussion of Bid Process • Construction Manager at Risk Agreement • Environmental Review • Supporting Professional Services During Construction • • Funding Availability • Public Notice Back Bay Science Center — Award of Contract No. 3640 February 28, 2006 Page: 3 0 PROJECT DESCRIPTION: The project is designed to ultimately consist of three buildings architecturally joined together with sloping roof extensions forming a single peak (Photo of model attached as Exhibit A). This new facility will replace the scattered buildings and modular units currently occupying the degraded former industrial site. It will serve Newport Beach and nearby communities as a center for water quality education and testing. It will emphasize the environmental impact of humans' living in a watershed area that drains into a southern California marine estuary (Newport Bay). Shellmaker Island has been owned by the State of California since 1975, and is managed by the Department of Fish and Game. The UCI crew base has existed on the property since the late 1960's and is currently covered by a lease with CDFG. UCI is planning to replace its existing building with a new facility large enough to accommodate its men's and women's crew teams. The proposed parking area and utilities for the BBSC are designed to serve both facilities and costs are to be shared. The total floor area of the proposed BBSC is slightly less than 13,000 square feet. The largest of the three buildings is L- shaped with the longer leg serving as the County's permanent Water Quality Laboratory and the shorter leg providing for storage of CDFG equipment, materials, and vehicles. Public restrooms will be located at the angle point • of the two legs. The other two buildings are each approximately equal in size (3,400 square feet). One will be used as an educational and teaching laboratory and the other will have administrative offices and a conference room available to the general community. Construction of the administration building will be deferred until additional funding is available. CHRONOLOGY OF ACTIVITIES AND PREVIOUS CITY COUNCIL ACTIONS: October 2001: City Council allocated $500,000 of American Trader Oil Settlement Funds to pay for leasing modular units to be used as the County's temporary Water Quality Laboratory and to hire professional consultants for architectural and site planning, biological analysis, topographical mapping, and geotechnical investigation. May 2002: Gail P. Pickart, P.E. is retained as Consulting Project Manager. Summer & Fall 2002: Site surveying and mapping is completed; geotechnical investigation, laboratory analysis, and report preparation are completed. Seismic analysis indicated site is subject to liquefaction and various remedial techniques were considered leading to the 40 choice of a reinforced concrete mat for building foundations. Back Bay Science Center— Award of Contract No. 3640 February 28, 2006' Page: 4 September — October 2002: Modular units for the temporary Water Quality Lab are positioned on -site. County completes move from Santa Ana to Shellmaker Island in January 2003. May 2003: Agreement is executed with CDF &G for planning and design portion ($369,600) of Wildlife Conservation and Restoration Program funds. Svrinq — Summer 2003: Civic Solutions is hired to prepare environmental documentation for the project. A Mitigated Negative Declaration is prepared and distributed for comments. September 2003: Council approved a Professional Services Agreement with Ron Yeo, AIA architect, for BBSC final design and preparation of construction documents (plans and specifications). Environmental documentation process is completed by CDFG. October 2003: r, L J Civic Solutions prepares and submits Coastal Development Permit Application to the • California Coastal Commission. December 2003: Nature Tourism Planning completes Interpretive Plan which sets forth the educational objectives, functions, and uses for the BBSC. March 2004: California Coastal Commission unanimously approves the Coastal Development Permit Application subject to thirteen conditions. April 2004: Construction documents are completed and advertisement for construction bids begins. June 8, 2004: No bids are received from construction contractors at the bid date and time. Inquiries to contractors indicate that the funding availability of $2.4 million is considerably short of the $4 million to $5 million that the project will cost. July 2004: Agreement is executed with CDF &G for construction portion ($615,400) of Wildlife Conservation and Restoration Program funds. 0 I • July 2004 — May 2005: Back Bay Science Center— Award of Contract No. 3640 February 28, 2006 Page: 5 Additional funding sources are sought. State Coastal Conservancy ($400,000) and miocean (www.miocean.com) ($500,000) commit contributions on the condition that matching funds will be provided by the City and that the Project will have the funds it needs to be completed. August 10, 2004: Council approves Cooperative Agreement for development of BBSC with CDF &G, County, and UCI. Lease with CDF&G and sub -lease with County for temporary water quality lab also are approved. Spring — Summer 2005: Various ideas are explored to reduce construction costs and consideration is given to alternate methods of project delivery; construction manager at risk with multiple prime contracts method is compared to the traditional general contractor (single prime) method. Plans and specifications are prepared for use of a pre- engineered steel framework for the building structure. Two construction bids were received, but significant cost savings were inconclusive; therefore, bids were rejected and the concept of pre - engineered building steel framework was abandoned. • August — September 2005: Qualification Based Selection (QBS) process is used to chose a Construction Manager at Risk for a Guaranteed Maximum Price (CMAR -GMP). Eight firms expressed interest, five were invited for interviews, and four were interviewed. Douglas E. Barnhart, Inc. received highest ranking and was chosen to provide preconstruction services and to negotiate a CMAR -GMP agreement. October — December 2005: Value engineering and constructability reviews were performed by Barnhart. Plans and specifications were modified accordingly; bid packages for multiple prime contracts were prepared and advertised for open and competitive public bidding. January 2006: Bids for 16 bid packages were received and publicly opened. A bid summary is attached as Exhibit B. DISCUSSION OF BID PROCESS: The most common and traditional project delivery method utilized for public works capital improvement projects is best described as a "design- bid - build" process. The project is first designed, then competitive construction bids are publicly solicited, and finally the contract • is awarded to the lowest responsible bidder who proceeds with construction. Insuring that the work is performed in compliance with the plans and specifications is accomplished by assigning staff personnel or by hiring a private construction manager to work with the Back Bay Science Center —Award of Contract No. 3649 February 28, 2006 Page: 6 general contractor during construction. The BBSC was initiated as a conventional "design- • bid - build" project. Given that no bids were received for the BBSC project in June 2004, combined with the experience of receiving a small number of bids for other large building projects (two for the Big Corona Beach Improvements and four for the Mariner's Library), staff investigated alternative project delivery methods. Through pro bono consultation with general contractors and construction management firms, staff concluded that, since the project design was already complete, a "multiple prime' method was the most likely way to generate more bidding interest and more realistic bids. Under the multiple prime project delivery method, the City effectively becomes the general contractor by soliciting and awarding "trade' contracts in a manner similar to the way a general/prime contractor obtains bids from sub - contractors and prices from material suppliers. This method places a greater burden on the project owner to schedule and coordinate the various construction activities as well as additional administrative efforts for the multiple contracts. These responsibilities can be handled by a professional construction management firm whose services can be expanded to provide a guaranteed maximum price for the project. This firm is identified as a "Construction Manager at Risk for a Guaranteed Maximum Price" (CMAR -GMP). As mentioned previously in the chronology section, a Qualification Based Selection process was implemented to choose Douglas E. Barnhart, Inc. (Barnhart) as the CMAR- GMP. An initial proposal from Barnhart to provide pre - construction services in an amount • not to exceed $29,900 was accepted. The scope of services included reviews for value engineering and constructability, the results of which were incorporated into the plans and specifications. Barnhart then took the lead in preparing the various bid packages and assisted in the solicitation of bids. The Notices Inviting Bids were advertised in the City's official publication (Daily Pilot) and in construction industry publications. Thirty -nine bids for Bid Packages Nos. 1 through 15 were opened and read aloud by the City Clerk at 2:00 pm, January 26, 2006. The single bid for Bid Package No. 16 was opened and read aloud by the City Clerk at 2:00 pm, January 31, 2006. The forty bids received for the 16 bid packages are shown on the attached bid summary as Exhibit B. Staff recommends award to the lowest, responsible bidder for 12 of the bid packages. Staff further recommends rejection of all bids for Bid Packages Nos. 6, 9, 10, and 16. Dow Diversified, the only bidder for Bid Package No. 6, which covers casework, is not a manufacturer approved installer for the material specified; therefore, staff recommends re- bidding this portion of the project. The single bid in the amount of $10,000 from Donald M. Hoover for Bid Package No. 9, Flooring, is approximately double the estimated cost for this portion of the project. Staff recommends re- bidding the flooring work as an informal contract. The single remaining bid from the Inland Company for Bid Package No. 10, Specialties, appears to have clerical errors with respect to the bid alternates (the other bid was withdrawn due to clerical errors). Accordingly, staff recommends rejecting the bid and re- bidding this portion of the project. The single bid received for Bid Package No. 16 was • submitted on the wrong form; therefore, it is considered non - responsive and should be rejected and re -bid. Back Bay Science Center— Award of Contract No. 3640 February 28, 2006 Page: 7 The total amount of the 12 contracts to be awarded is $4,469,033. The estimated cost of the four bid packages to be re -bid is $260,000. The total of these two amounts is $4,729,033, which is 9.66 percent greater than the Engineer's Estimate of $4,312,500. This increase is indicative of the continued escalation of costs for labor and materials occurring in the construction industry. There is no expectation that this trend will stabilize or be reversed in the near future. The bid amounts for each trade contract includes a work related contingency totaling $200,000 for the 12 bid items to be awarded immediately and $25,000 for the four bid items to be re -bid and awarded at a later date to cover changes approved during construction. Any unused balance of this contract related contingency allowance is shared between the CMAR -GMP and the City. CONSTRUCTION MANAGER AT RISK AGREEMENT: A construction management agreement has been negotiated with Douglas E. Barnhart, Inc., and is attached as Exhibit C. A summary of the Scope of Services to be provided under the agreement is as follows: 1. Scheduling and coordinating the work of the trade contracts awarded under Bid Packages 1 through 16 2. Receiving, processing, and tracking responses to requests for information (RFI's) 3. Receiving, reviewing, and making recommendations for project change orders 4. Observing work for compliance with the project plans and specifications and requesting inspections by the City's Building Department 5. Coordinating the services of professional consultants relative to architectural, geotechnical, biological, civil engineering, and materials testing 6. Maintaining project records and files and conducting regularly scheduled meetings 7. Scheduling project walk - throughs and preparing punch lists at appropriate project milestones, such as substantial completion and final completion 8. Providing information regarding the project's status and progress and responding to inquiries and complaints 9. Providing personnel, equipment, and materials identified as General Conditions and tabulated on Exhibit B to the Agreement 10. Guaranteeing a maximum cost for the project which is the total amount of the awarded trade contracts. The compensation to Barnhart for these services and the guaranteed maximum price consists of: 1. $382,525 for General Conditions to be paid at the rate of $34,775 per month for up to 11 months, 2. A fee of 4.5% of the total amount of the 12 contracts excluding the contingency allowances (4.5% x [$4,469,033 less $200,000] _ $192,106), and 3. A 30% share of the unused balance of the contract related contingency allowance, while the City retains a 70% share of the unused balance. Back Bay Science Center— Award of Contract No. 3640 February 28, 2006' Page: 8 Barnhart is "at risk" by assuming responsibility to pay for construction costs exceeding the • trade contract amounts including allowances. Barnhart is also "at risk" for the cost of the General Conditions beyond 11 months resulting from delays for which they have control and responsibility. A comparison of Barnhart's pre - determined compensation with other building projects (none of which were "at risk" with a "guaranteed maximum price') is attached as Exhibit D. The compensation appears to be consistent with other similar building project recognizing that the cost of General Conditions, as a percentage of the total construction costs is higher for smaller projects than it is for larger projects. This is because the personnel needed for a $4M project are almost the same as for a $10M project. In addition, the project benefits from the "at risk" aspect of the Guaranteed Maximum Price. ENVIRONMENTAL REVIEW: A Mitigated Negative Declaration was prepared to assess the environmental impact in constructing the Back Bay Science Center. The California Department of Fish and Game was the lead agency for the environmental review and the process was completed in September 2003. SUPPORTING PROFESSIONAL SERVICES DURING CONSTRUCTION: In addition to the costs of the construction contracts and the construction management agreement, an estimated amount of $203,000 will be needed for the supporting services of professional consultants during construction. A list of these services and corresponding estimated costs is as follows: Support Type Provided By Amount Surveying and Staking Walden & Associates $25,000 Geotechnical Observation and Testing Ba ahi En ineerin $20,000 Biological Monitoring & Reporting Coastal Resources Management $25,000 Materials Testing firm to be selected $15,000 Architectural Ron Yeo, FAIA $63,000 Reproductions, So. Cal. Edison, etc. I 1 $10,000 Project Management Gail Pickart, P.E. 1 $45,000 TOTAL $203,000 Professional Services Agreements will be used to cover the services to be provided by Walden & Associates, Bagahi Engineering, and Coastal Resources Management. Ron Yeo's services are covered by an existing agreement and amendments. Gail Pickart's services will be covered by Amendment No. 3 to his existing agreement (Exhibit E) for which staff recommends approval. • FUNDING AVAILABILITY: • • Back Bay Science Center— Award of Contract No. 3640 February 28, 2006 Page: 9 The following funding sources have been identified for the Back Bay Science Center project: Agency Fund Source Amount California Department of Fish & Game • Planning and Design Wildlife Conservation and Restoration Act Grant $369,600 City of Newport Beach American Trader Oil Spill Settlement Funds $500,000 California Department of Fish & Game • Construction Wildlife Conservation and Restoration Act Grant $615,400 California Department of Fish & Game American Trader Oil Spill Settlement Funds $112,000 Wildlife Conservation Board California Wildlife Foundation $69,000 County of Orange Tobacco Settlement Funds $1,230,000 City of Newport Beach Newport Bay Restoration Fund $311,000 University of California, Irvine Marsh Restoration $30,000 University of California, Irvine Share of Site Improvements $278,000 State Coastal Conservancy Grant $400,000 miocean Contribution $500,000 City of Newport Beach Match for miocean Contribution and State Coastal Conservancy Grant $500,000 Other City Funding, RDA reimbursable trailhead for UNB Nature Preserve) Trailhead /Site Improvements $600,000 Total Identified Funds $5,515,000 Since the project's inception in 2001, approximately $869,600 has been expended or encumbered for future expenses for this project. These expenditures and encumbrances include the costs for the modular units housing the temporary water quality laboratory, site planning and architectural design, geotechnical testing and reports, topographical mapping, environmental documentation, coastal development permit processing, project management, and reprographics. The City's allocation of $500,000 from the American Trader Oil Spill Settlement Funds and the $369,600 Planning and Design portion of the Department of Fish and Game Grant from the Wildlife Conservation and Restoration Program (WCRP) have been used to pay for the expenditures and encumbrances to date. Subtracting the $869,600 expended and encumbered from the $5,515,000 of identified funding sources leaves a balance of $4,645,400 available for construction. Back Bay Science Center —Award of Contract No. 3640 February 28, 2006 Page: 10 A summary of the project's construction costs is as follows: • Shortfall: A comparison of the construction cost of $5,806,564 to the available funds of $4,645,400 results in a budget shortfall of $1,161,164. An appropriation from the General Fund is necessary to meet this shortfall and to match contribution and grant requirements. An appropriation from the Newport Beach Restoration Fund also has been identified. A budget amendment is recommended to increase revenue estimates and expenditure appropriations related to the proposed Back Bay Science Center. City funding sources for • the $1,972,164 in new appropriations include the Newport Beach Restoration Fund and the General Fund. While this is a significant investment — making the City the largest contributor to the project — the project itself is beneficial to the City in the following ways: 1. It will increase regional knowledge about water quality and estuarine protection, thus complementing the existing resources that the City spends on water quality education. 2. The County's Water Quality Lab has the capacity, staffing, and talent to make significant advances in water quality testing, some that may lead to better, more effective use of the dollars that the City spends (via grants or otherwise) on water quality protection and testing. 3. The Lab also offers us a chance to improve our partnership with the County as we embark on additional water quality testing regimens associated with current and future regulations. For example, as we are required to increase our testing in Buck Gully (the two Areas of Special Biological Significance off Buck Gully and Newport Coast), we can work with the Lab on scheduling the tests and getting "bulk rate" pricing for some of our work. As such, the investment today in the BBSC could and should pay off over time in these several ways. • Amount Contracts for Bid Packages 1 -5, 7 -8, and 11 -15 $4,469,033 Estimated Cost for Bid Packages 6, 9 -10, and 16 to be re -bid $260,000 Estimated Cost to Relocate Exist CDF &G Modular Units $25,000 Contingency for unforeseen work (Approximately 5% $245,000 Construction Management (Pre - construction) $29,900 Construction Management General Conditions) $382,525 Construction Management 4.5% $192,106 Project Management $45,000 Professional Support Services dudnR construction $158,000 Total $5,806,564 Shortfall: A comparison of the construction cost of $5,806,564 to the available funds of $4,645,400 results in a budget shortfall of $1,161,164. An appropriation from the General Fund is necessary to meet this shortfall and to match contribution and grant requirements. An appropriation from the Newport Beach Restoration Fund also has been identified. A budget amendment is recommended to increase revenue estimates and expenditure appropriations related to the proposed Back Bay Science Center. City funding sources for • the $1,972,164 in new appropriations include the Newport Beach Restoration Fund and the General Fund. While this is a significant investment — making the City the largest contributor to the project — the project itself is beneficial to the City in the following ways: 1. It will increase regional knowledge about water quality and estuarine protection, thus complementing the existing resources that the City spends on water quality education. 2. The County's Water Quality Lab has the capacity, staffing, and talent to make significant advances in water quality testing, some that may lead to better, more effective use of the dollars that the City spends (via grants or otherwise) on water quality protection and testing. 3. The Lab also offers us a chance to improve our partnership with the County as we embark on additional water quality testing regimens associated with current and future regulations. For example, as we are required to increase our testing in Buck Gully (the two Areas of Special Biological Significance off Buck Gully and Newport Coast), we can work with the Lab on scheduling the tests and getting "bulk rate" pricing for some of our work. As such, the investment today in the BBSC could and should pay off over time in these several ways. • Back Bay Science Center— Award of Contract No. 3640 February 28, 2006 Page: 11 ' Onooino costs: The Cooperative Agreement pledges that the City will "maintain and repair the BBSC structures (other than minor capital improvements such as roof replacements), improvements and site at all times in good condition and repair, to maintain the insurance ..." These amounts will have to be included in future City budgets and are estimated at $75,000 to $100,000 per year. • PUBLIC NOTICE: The Notice Inviting Bids was advertised in the City's official publication and in construction industry publications. Affected residents and businesses will be noticed by the contractor /City ten days and two days prior to starting work in their area. Submitted by: Attachments: Exhibit A — BBSC Site Plan Exhibit B — Bid Summary Exhibit C — Construction Manager at Risk Agreement Exhibit D — At Risk Comparison Chart Exhibit E — Amendment No. 3 to Professional Services Agreement with Gail P. 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Lu E .}.a U o to C O U U) O o C4 E U = N "- ui .Q RS >_ a) N~ U m U O cn to O �- c u N ^W'' ^Z n` U L S_ 0) � n W i < < V LL S.L W ll Ll QL 0 0 �— (n LJ 2 5 u E D M a to O r • EXHIBIT C Barnhart Construction Manager at Risk Agreement • CONSTRUCTION MANAGEMENT AT RISK SERVICES AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND DOUGLAS E. BARNHART, INC. This Construction Management At -Risk Services Agreement ( "Agreement ") is entered into this day of February 2006, by and between the CITY OF NEWPORT BEACH, a U municipal corporation ( "CITY "), and DOUGLAS E. BARNHART, INC., a California corporation ('BARNHART'). This Agreement is entered into with reference to the following recitals, all of o0 which are incorporated herein by this reference. X U-1 RECITALS WHEREAS, 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 City; and WHEREAS, BARNHART is a California corporation duly organized and validly existing under the laws of the State of California; and WHEREAS, the CITY has obtained funding from various sources to design, install, and construct a new two - building wood framed facility and the foundation for a third building wood framed facility commonly known as the Newport Beach Back Bay Science Center which will . be located on Shellmaker Island, in the Upper Newport Bay Ecological Reserve, as more particularly described and depicted in Exhibit "A" which is attached hereto and incorporated by this reference ( "the Project'); and WHEREAS, the CITY has retained Ron Yeo, FAIA, Architect, Inc., (hereinafter the "Architect") to provide and perform certain services in connection with the designing, bidding and construction of the Project; and WHEREAS, the Architect has completed preparation of the Plans and Specifications for the Project; and WHEREAS, the CITY has elected to bid construction of the Project to multiple contractors ('Trade Contractors ") and to construct the Project by entering into separate contracts ('Trade Contracts ") with the lowest responsible and responsive bidder for each Trade Contract; and WHEREAS, BARNHART previously provided CITY with preconstruction services and has expressed interest in providing construction management "At- Risk" services for the Project whereby BARNHART commits to complete the Project by a date certain and deliver the Project at a Guaranteed Maximum Price; and WHEREAS, the CITY desires to retain BARNHART to provide "At- Risk" construction management and additional services in connection with the Project including the Basic . Services, as more particularly described in this Agreement, and BARNHART desires to provide such services; and WHEREAS, BARNHART is a professional construction manager, duly qualified and capable . of providing the services described herein in accordance with the terms hereof. NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of which is acknowledged by the Parties, the Parties agree as follows: AGREEMENT ARTICLES 1. DEFINITIONS In addition to the definitions ascribed to certain words, phrases or terms in the Preamble or Recitals of this Agreement, the following words, phrases or terms shall have the following definitions: "Architect" shall have the meaning ascribed to the term in the Recitals of this Agreement. "BARNHART" shall have the meaning ascribed to the term in the Preamble of this Agreement. "BARNHART Contingency" the total amount of BARNHART's Contingency shall be • Two Hundred and Twenty -Five Thousand Dollars and No /Cents ($225,000.00) and shall be included in the Trade Contracts for the exclusive use of BARNHART as provided herein. "Basic Services" means all services, except Additional Services, to be performed by BARNHART under this Agreement and which services are more particularly described in Articles 2, 4 and 5. "CITY" shall have the meaning ascribed to the term in the Preamble of this Agreement. "Completion Date" shall be eleven (11) months after the date set forth in the Notice to Proceed issued by the CITY to BARNHART. The Completion Date may be adjusted in accordance with the provisions of this Agreement. "Construction Cost Estimates" means estimate of the costs of labor, materials, equipment and services plus a reasonable allowance for the Trade Contractors' profit, overhead and administrative cost as necessary to complete construction of the Project in accordance with the Plans and Specifications. "Construction Cost Statement," "CCS" and "Guaranteed Maximum Price" each mean and refer to the fixed amount of FOUR MILLION FOUR HUNDRED NINETY- • FOUR THOUSAND THIRTY -THREE DOLLARS and NO CENTS ($4,494,033.00), which is more particularly described in Exhibit "B," attached hereto and incorporated 2 by this reference, and which shall include the following: (a) the aggregate amount of all the Trade Contracts, less BARNHART's Contingency included in each Trade Contract, entered into by the CITY with the Trade Contractor's to construct the Project; (b) sales, use, gross receipts and similar taxes; (c) BARNHART's Contingency; and (d) all other Project costs not specifically excluded herein. The following costs are excluded from the CCS and BARNHART's Contingency shall not be used to pay the following costs: (a) a CITY directed change to a Trade Contract; (b) Differing Site Conditions; (c) changes to a Trade Contract directed by a governmental agency with jurisdiction over the Project or portions thereof; (d) changes to a Trade Contract caused by the CITY or a CITY's Consultant other than BARNHART; (e) changes to a Trade Contract necessitated by amendment(s) or enactment(s) of laws, rules, ordinances or regulations applicable to the Project or portions thereof which could not be reasonably anticipated or foreseen by BARNHART at the time this Agreement was entered into; (f) costs, fees, or expenses paid to the Architect; (g) costs of salaries and benefits paid to CITY employees engaged in connection with the Project; (h) costs, fees or expenses paid to Test/Inspection Service Providers; (i) costs or fees for obtaining permits or approvals (except to the extent included in the scope of a Trade Contract awarded by the CITY); Q) costs, expenses or fees of other consultants retained by the CITY in connection with the Project ( "CITY Consultants "); (k) The Percentage Payment and General Condition Payment to be paid under this Agreement; (1) any amount set aside by CITY as CITY Contingency; (m) site acquisition costs; and (n) the costs of furniture, furnishing and /or equipment for the Project which are not included in the scope of the Trade Contracts. The Parties agree that BARNHART's Contingency shall be for the exclusive use of BARNHART and used to pay the following costs, if any: (a) scope gaps and /or omissions in the division of work between the Trade Contractor(s); (b) constructability errors in the Plans and /or Specifications; (c) those conditions not included and /or wrongly included in the Plans and Specifications; and /or (d) any delay attributable to BARNHART, except that BARNHART shall not be responsible and /or liable and /or required to use the BARNHART Contingency to pay for design errors and /or other errors in the Design Documents attributable to the Architect, Engineer and /or design team. Where applicable, the terms "Construction Cost Statement," "CCS" and "Guaranteed Maximum Price" shall each include adjustments made in accordance with this Agreement. "Construction Schedule" means the written or graphic description of the scheduling, sequencing and interrelationships of activities necessary to complete a Trade Contract. Construction Schedules are prepared by the Trade Contractors for review by BARNHART and acceptance by the CITY and for incorporation into the Master Project Schedule by BARNHART. "Day" means a calendar day unless otherwise specifically designated. "Design Documents" means the drawings, specifications, calculations and other work product and Instruments of Service prepared by or on behalf of the Architect for . the Project. Design Documents include surveys, soils reports and other documents prepared for the Project by a licensed Architect or Registered Engineer, whether under 41 contract to the Architect or CITY. • "Designated CITY Representative" means the Public Works Director or his /her designee as set forth in writing to BARNHART. The Designated CITY Representative shall be authorized to render decisions on behalf of the CITY and to carry out the CITY's responsibilities under this Agreement, all of which shall be discharged or performed in a manner so as to avoid unreasonable delay in the orderly and sequential progress of BARNHART's performance of services and other obligations hereunder. "Differing Site Conditions" are subsurface or latent physical conditions at the Project Site differing materially from those conditions indicated or reasonably inferable from a reasonable evaluation in accordance with industry custom or unknown or unforeseen physical conditions at the Project Site of an unusual nature, differing materially from conditions normally encountered and generally recognized as inherent in work of the nature provided for in the Plans and Specifications. "Final Completion" means the time when all of the work of a Trade Contract has been completed and installed (including items noted for correction, repair or modification upon Substantial Completion) and the Trade Contractor has completed all other obligations to be performed on its part under the Trade Contract. "Master Project Schedule" means and refers to the schedule for the performance of this Agreement which incorporates the Trade Contractor's separate Construction Schedules. The Master Project Schedule, and any revisions thereto, must be reviewed and approved by the CITY. "Parties" means and refers, collectively, to the CITY and BARNHART. "Party" means and refers, individually, to either the CITY or BARNHART, as applicable. "Permissible Delay" means a delay that impacts a critical path item set forth in the Master Project Schedule and which is caused by any of the following: (a) a CITY directed change to a Trade Contract; (b) Differing Site Conditions; (c) changes to a Trade Contract directed by a governmental agency with jurisdiction over the Project or portions thereof; (d) changes to a Trade Contract caused by the CITY or its consultants, including, but not limited to, the Architect; (e) changes to a Trade Contract necessitated by amendment(s) or enactment(s) of laws, rules, ordinances or regulations applicable to the Project or portions thereof which could not be reasonably anticipated or foreseen by BARNHART at the time this Agreement was entered into; and (f) delays arising out of environmental site conditions known or unknown to the Parties including, but not limited to, flora, fauna, wildlife, endangered species, nesting or mating of species and /or related to the existing ecological preserve. • "Plans and Specifications" means and refers to all plans and specifications for soliciting bids for the construction and installation of the Project on the Project Site as approved by the City's Public Works Director or City Engineer, in his /her sole and absolute discretion, prior to any bid solicitation or construction. "Project" shall have the meaning ascribed to the term in the Recitals of this Agreement. "Project Site" means the physical area for construction and activities relating to construction of the Project, on Shellmaker Island, in the Upper Newport Bay Ecological Reserve, in Newport Beach, California, as more particularly described and depicted in Exhibit "A ". "Submittals" means shop drawings, product data, documents, or samples prepared or provided by a Trade Contractor or a subcontractor to a Trade Contractor or suppliers illustrating or relating to the work of the Project. "Substantial Completion" means the time when all work of a Trade Contract has been completed and installed and the work can be used or occupied for its intended purposes, subject only to minor corrections, repairs or modifications. "Test/inspection Service Providers" means the consultant(s) hired by the CITY to test and /or inspect the Project work. "Trade Contract" means a construction contract awarded by the CITY to a Trade Contractor for the construction of a portion of the Project. "Trade Contractor" means a contractor who has been awarded a Trade Contract by the CITY for construction of a portion of the Project. 2. BASIC SERVICES 2.1 General; Phases of Basic Services. BARNHART shall provide and perform the Basic Services more particularly described in this Agreement. The Basic Services shall be performed and completed in a series of sequential Phases generally described as: (a) Construction Phase, as set forth in detail in Article 4 below; and (b) Post - Construction Phase, as set forth in detail in Article 5 below. The scope of BARNHART's Basic Services and obligations during each Phase of the Basic Services shall be as set forth herein. 2.2 Relationship of BARNHART to Other Project Participants. BARNHART's services hereunder shall be provided in conjunction with contracts between the CITY and: (a) the Architect; (b) the Trade Contractors; (c) Test/Inspection Service Providers; and (d) others providing services in connection with bidding and /or construction of the Project. The Architect is responsible for the adequacy and sufficiency of the Project design and the contents of Design Documents for 5 the Project. The Architect shall perform its duties in accordance with its • contract(s) with the CITY. Except as expressly set forth herein, neither this Agreement, nor BARNHART's rendition of services hereunder shall be deemed BARNHART's assumption of responsibility for the adequacy or sufficiency of the Project design or the Design Documents for the Project, which are and remain that of the Architect. In accordance with the scope of Basic Services described herein, BARNHART shall be responsible for assisting the CITY in the selection and retention of Test/Inspection Service Providers and generally coordinating the services of the Test/inspection Service Providers during the Construction Phase. BARNHART is not, however, responsible for the completeness or accuracy of the work product or services provided by Test/Inspection Service Providers. BARNHART shall be responsible for coordinating project inspection with the City's Building Department. BARNHART shall review the work of the Trade Contractors and request building inspections when appropriate. 2.3 BARNHART Standard of Care. BARNHART shall provide the Basic Services and authorized Additional Services using its best professional skill and judgment, acting with due care and in accordance with professional standards of care, the terms hereof and applicable law, ordinance, rule or regulation. BARNHART's services hereunder shall be provided and completed promptly and in such a manner as to avoid hindrance, interruption or delay to the orderly progress and timely completion of Project bidding and construction. • 3. CITY RESPONSIBILITIES 3.1 CITY Information. The CITY shall provide full information regarding the Project, including the CITY's objectives, financing, schedule requirements and other constraints and requirements which may affect the budget for the Project, time for completion of the Project or the scope of the Project work. 3.2 Tests /Inspections. In accordance with applicable law, ordinance, rule or regulation, the CITY shall retain Test/Inspection Service Providers to conduct Construction Phase tests /inspections of materials /equipment forming a part of the Project, as required by applicable law, ordinance, rule or regulation. The foregoing notwithstanding, as set forth below, the Basic Services of BARNHART include assistance to the CITY in identifying, selecting and retaining Test/inspection Service Providers. The City's Building Department will be responsible for inspecting the work with respect to applicable Building code compliance. 33 CITY Consultants. CITY reserves the right to employ other consultants in connection with the Project. Except for consultants retained by the Architect, other consultants required or desired by the CITY in connection with the Project shall be retained and paid for by the CITY. Such other consultants include, • without limitation, the Designated CITY Representative, legal counsel, materials 11 0 testing, geotechnical, special inspection, or insurance /surety consultants. 4. CONSTRUCTION PHASE 4.1 Administration and Coordination of Trade Contracts and Construction. BARNHART will provide administrative, management and related services necessary to administer the Trade Contracts and to schedule, sequence and coordinate the Project work of the Trade Contractors during the Construction Phase of the Project including, but not limited to, the following: (a) receive, review and forward to the CITY and the Architect the Trade Contractors' Certificates of Insurance and Bonds along with commentary as to the extent to which the same comply with requirements of each Trade Contract; (b) advise and make recommendations to the CITY regarding the issuance of Notice to Proceed directing the Trade Contractors to commence of work under the Trade Contracts; (c) scheduling, coordinating and conducting pre- construction and construction meetings; recording, maintaining and distributing minutes thereof; (d) in consultation with the Architect, develop and implement procedures for the submittal and processing of Submittals required by each Trade Contract; (e) in consultation with the CITY and the Architect, develop and implement procedures for the handling and disposition of the Trade Contractors' requests for information or clarifications; (f) establish and implement procedures for the transmittal and receipt of communications, drawings and other information • between BARNHART, Architect and the Trade Contractors relating to Project construction; (g) assist the CITY in selection and retention of Testlinspection Service Providers; (h) schedule, sequence and coordinate activities of the Trade Contractors; (i) request and coordinate inspections by the Building Department; and (j) allocate Site staging and storage areas. 4.2 Monitorinq of Construction Costs. BARNHART will monitor on -going actual construction costs and advise the CITY of the financial condition of the Project by: (a) development of Project cash flow reports, forecasts and other financial reports to the CITY, including those reflecting variations between actual construction costs and the estimated costs of unperformed Project activities; (b) maintaining records reflecting the actual costs for activities completed or in progress, including records relating to work performed on a unit cost basis and additional work performed by the Trade Contractors on a time and materials basis; (c) monitor and advise the CITY of costs pertaining to potential, pending and completed changes to any Trade Contract; and (d) advising and making recommendations to the CITY for adjustments to CITY's budget for the Project relative to actual or anticipated construction costs. BARNHART shall prepare and submit cost reports to the Designated CITY Representative on a monthly basis; provided that if the Designated CITY Representative reasonably determines that more frequent cost reports are required, BARNHART shall comply with the directive(s) of the Designated CITY Representative. The . information compiled by BARNHART and reports generated by BARNHART relating to actual construction costs shall be in such detail and format as 7 required by the Designated CITY Representative. In addition the extent of • detail and the nature of the format of such reports, the information compiled by BARNHART and reports generated by BARNHART shall specifically indicate the original Contract Price of each Trade Contract, the extent of adjustment of the Contract Price to each Trade Contract by CITY approved Change Orders and the extent of potential further adjustment of the Contract Price of each Trade Contract as of the date of BARNHART's report based upon the Change or potential Changes known at the time of BARNHART's preparation of a cost report for a Trade Contract. 4.3 Applications for Progress Payments. BARNHART will participate in the review and disbursement of Progress Payments to the Trade Contractors and in consultation with the CITY and the Architect, make recommendations for the disbursement of Progress Payments to the Trade Contractors as follows: (a) BARNHART will assist in the development of procedures for submittal, review, processing and disbursement of Progress Payments to Trade Contractors, along with associated forms and reporting systems; (b) based upon BARNHART's observations and evaluations of each Application for Progress Payment, BARNHART will review and certify to the CITY the amount due on each such Application for Progress Payment; BARNHART's certifications constitute a representation to the CITY that, based on BARNHART's observations at the Project Site, the data in each Application for Progress Payment, and to the best of BARNHART's knowledge, information and belief, the work has progressed to the point indicated in the Application for Progress Payment and the quality of the work is in generally in accordance with the Plans and Specifications for the Trade Contract; and (c) BARNHART's representations relative to Applications for Progress Payment are subject to an evaluation of the work for conformity with the requirements of the applicable Trade Contract for the Substantial Completion of each Trade Contract, results of subsequent tests, inspections and other procedures, minor deviations from requirements of the Trade Contracts correctable prior to completion and any specific qualifications expressed by BARNHART in its certification. BARNHART's issuance of a Certificate pursuant to the preceding procedures shall be a representation that the Trade Contractor is entitled to payment in the amount so certified. BARNHART's review of Applications for Progress Payment shall be undertaken and completed in a timely manner so that the CITY can meet its obligations to make Progress Payment due each Trade Contractor within the time permitted by the Trade Contract and /or applicable law without incurring interest liability or other penalties /liabilities. 4.4 Substantial Completion; Punchlist. In consultation with the Architect and the CITY, BARNHART will assist in ascertaining the achievement of Substantial Completion of the work of each Trade Contract. If upon inspection of the work of a Trade Contractor, BARNHART determines that Substantial Completion has not been achieved, BARNHART will assist the Architect in noting the conditions . of the work and the measures necessary for the Trade Contractor to achieve K • Substantial Completion of its portion of Project construction. Upon each Trade Contractor achieving Substantial Completion, BARNHART will participate with the CITY and the Architect to inspect the work completed by each Trade Contractor to note punchlist items to be completed by the Trade Contractor as a condition to achieving Final Completion of the Trade Contract. 4.5 Project Progress. 4.5.1 Master Project Schedule. BARNHART will, in consultation with the CITY, develop an overall comprehensive Master Project Schedule for construction of the Project showing the activities of each of the Trade Contractors necessary for completion of Project construction. BARNHART will incorporate the Trade Contractors' separate Construction Schedules into the Master Project Schedule. The Master Project Schedule shall be subject to review and approval by the CITY. During the course of Project construction and based upon Trade Contractors' updated Construction Schedules, BARNHART shall monitor and update the Master Project Schedule on a monthly basis or more frequently as may be requested from time -to -time by the CITY so that the CITY is kept fully informed at all times of the status and progress of overall Project construction and the status of each Trade Contractors' construction progress. Any updates to the Master Project Schedule shall . be subject to review and approval by the CITY. Where the actual rate of Project construction progress is behind that indicated by the Master Project Schedule, BARNHART shall advise and make recommendations to the CITY for remedial action. E 4.5.2 Trade Contractors' Schedules. BARNHART shall review the Trade Contractors' Construction Schedules and updates thereof, advising the CITY of compliance with the terms of the Trade Contract along with measures appropriate to obtain compliance if necessary. 4.5.3 Coordination of Construction Activities. BARNHART shall coordinate the activities of the Trade Contractors with each other and those of BARNHART, the Architect, Test/Inspection Service Providers and the CITY in conformity with the Master Project Schedule, including the coordination and sequencing of Trade Contractors' construction activities so that Site space is appropriately allocated and the Master Project Schedule is maintained. A material obligation of BARNHART under this Agreement is the scheduling, coordination and sequencing the activities of the Trade Contractors in a manner so that Project construction is completed in accordance with the Master Project Schedule, by the Completion Date and for the Guaranteed Maximum Price, as may be adjusted in accordance with the provisions contained in this Agreement. 9 4.5.4 Progress Records. BARNHART will maintain records of the progress of • Project construction, including written progress reports and photographs reflecting the status of Project construction and percentage completion. BARNHART will maintain daily records during Project construction showing weather conditions, Trade Contractors and their subcontractors at the Project Site, work accomplished under each Trade Contract, problems encountered and other matters materially affecting the Project, completion of the Project or actual construction costs. BARNHART and CITY shall meet at regular mutually agreed intervals to discuss Project progress, problems encountered, and other matters materially affecting the Project, schedule, completion of the Project or actual construction costs. 4.5.5 Substantial Completion and Final Completion. Upon request of a Trade Contractor, BARNHART will, in conjunction with the Designated CITY Representative, and the Architect, determine that Substantial Completion and Final Completion have been achieved under that Trade Contractors' Trade Contract. Upon determining that Substantial Completion /Final Completion of a Trade Contact has been achieved, BARNHART, after obtaining CITY's approval, shall issue Certificates of Substantial Completion and Final Completion for that Trade Contract, as applicable. Except as provided herein, BARNHART shall ensure that the Project is completed by the Completion Date. • 4.6 Site Observations. 4.6.1 BARNHART On -Site. During Project construction and at substantially all times during which there are construction activities under the Trade Contracts, BARNHART shall have its Project Manager, Field Superintendent or other authorized representative at the Project Site, to observe Site construction activities and to coordinate the activities of the Trade Contractors. The foregoing notwithstanding, upon prior request of BARNHART, the CITY may consent to Trade Contractors' performance of Project Site construction activities without the Project Manager, Field Superintendent or other authorized representative of BARNHART present at the Project Site; the CITY's consent may be granted, denied, limited or conditioned in the sole absolute discretion of the CITY. BARNHART shall maintain at the Project Site the Trade Contracts, Drawings, Specifications, approved Change Orders, Submittals, applicable codes, rules and regulations and other written or electronic materials relating to the Project. 4.6.2 Construction Quality. BARNHART will endeavor to guard the CITY against defects and deficiencies in construction and workmanship on the basis of its Project Site observations, and a quality control program • established and implemented hereunder to monitor the workmanship of iff the Trade Contractors for conformity with: (a) accepted industry standards; (b) applicable laws, ordinances, regulations, ordinances or rules; (c) the requirements of the Trade Contracts; and (d) the Project Plans and Specifications. 4.6.3 Relection of Work. Whenever in the ordinary course of discharging its services hereunder BARNHART shall upon the discovery or observation of patent conditions of defective or deficient construction or workmanship which has or may have an adverse impact upon building life- safety systems or operations, structural elements or integrity or the safety of persons or property, BARNHART shall take immediate action appropriate under the circumstances, including stopping the work and thereupon notifying the CITY in writing. In other circumstances where defective or deficient construction or workmanship is observed by BARNHART, the CITY shall be notified immediately in writing by BARNHART of such conditions and if directed by the CITY, BARNHART shall stop or reject such Work. BARNHART's responsibilities hereunder shall be limited to defective or deficient work of an apparent and patent nature. 4.7 Site Safetv. • 4.7.1 CITY Safety Program. If applicable, prior to any Trade Contractors' performance of Work at the Site, BARNHART shall review the CITY's safety program, meet and confer with the CITY Representative to review the CITY's safety program and to address measures to be implemented by BARNHART to coordinate the safety programs of each Trade Contractor with the CITY's safety program. 4.7.2 Trade Contractors' Safety Programs. BARNHART shall review the safety programs developed by each of the Trade Contractors for purposes of coordinating the safety programs with those of the other Trade Contractors. BARNHART's responsibilities for coordination of safety programs shall not extend to direct control over or charge of, the acts or omissions of the Trade Contractors, or the subcontractors, agents or employees of the Trade Contractors or any other persons employed to perform portions of the Project. 4.7.3 Safety Violations; Safety Conditions. BARNHART shall promptly notify the Designated CITY Representative in writing of all BARNHART's observed instances of a Trade Contractors' failure to comply with applicable safety requirements. In the event of a safety violation or other unsafe conditions on or about the Project Site which have an immediate potential or actual adverse effect on life or property, BARNHART is . authorized, without prior notice to the CITY or prior directive of the CITY, to take all actions deemed necessary and appropriate by BARNHART 11 5. under the then existing circumstances to prevent such actual or potential . adverse effect. 4.8 Site General Conditions. At all times during construction activities at the Project Site, BARNHART shall provide or cause to be provided the items of personal property and services identified in Exhibit "C" (General Conditions Items) which is attached hereto and incorporated by this reference. 4.9 Changes and Claims. 4.9.1 Coordination of Changes. BARNHART will coordinate and disseminate correspondence, drawings and other written materials by and between the Trade Contractors, the CITY, Test/inspection Service Providers and the Architect relating to Changes to the Trade Contracts. BARNHART will coordinate the Trade Contractors' performance of Changes authorized by the CITY. BARNHART will maintain a log or other written records to monitor the pendency and disposition of Changes and Change Orders to keep the CITY advised of the status of the same and the actual or potential impact of any particular Change or Change Order or the cumulative effects thereof on Construction Costs or time for completion of Project construction. 4.9.2 Processing of Changes and Change Orders. BARNHART will assist the • CITY and the Architect in evaluation of requests by Trade Contractors for issuance of Change Orders, assist in negotiations with Trade Contractors relative to Change Orders proposals and the adjustment of Contract Price or Contract Time under the Trade Contracts. BARNHART will make recommendations to the CITY and the Architect for handling and disposition of the Trade Contractors' proposals relative to Change Orders. If a Change to a Trade Contract is approved or authorized by the CITY, BARNHART will assist the CITY and the Architect in the preparation of a Change Order reflecting such approved or authorized change to the Trade Contracts. For all Change Orders that result in a change in the scope of work for any Trade Contract and /or that are required to be paid with CITY funds, BARNHART shall obtain the CITY's written consent and approval prior to effectuating or authorizing said Change Order. 4.9.3 Claims Handling. BARNHART will assist the Architect in the review, evaluation and processing of claims asserted by Trade Contractors; BARNHART will make recommendations to the CITY as to merit, handling and disposition of Trade Contractors' claims. POST - CONSTRUCTION PHASE 5.1 Review and Transmittal of Trade Contractors' Close -Out Documents. a 12 BARNHART shall receive from the Trade Contractors' Close -Out Documents and items to be submitted by each Trade Contractor under the terms of its Trade Contract upon completion of its obligations under the Trade Contract. BARNHART shall review each Trade Contractors' Close -Out Documents to determine conformity with requirements of each Trade Contract; if BARNHART determines that any Trade Contractors' Close -Out Documents are not in conformity with requirements of the Trade Contract, BARNHART shall make recommendations to the CITY for measures to secure compliance with the requirements of the Trade Contract. BARNHART shall deliver to the CITY Representative all of the Trade Contractors' Close -Out Documents, except for the Trade Contractors' as -built drawings which BARNHART shall transmit to the Architect for preparation of the Record Drawings. BARNHART shall monitor the Architect's preparation and completion the Project Record Drawings. 5.2 BARNHART Project Records. Within thirty (30) days of the date of issuance of a Certificate of Final Completion for a Trade Contract, BARNHART shall assemble and deliver to the CITY all of the Project Records maintained during the Construction Phase by BARNHART relating to the Trade Contract. 5.3 Trade Contractors' Post - Construction Obligations. If any Trade Contractor is obligated under the terms of its Trade Contract to provide work, labor materials or services after completion of Project construction, BARNHART shall monitor • Trade Contractors' post- construction obligations for conformity with requirements of the Trade Contract. BARNHART shall make recommendations, as necessary, for securing Trade Contractors' compliance with its post- construction obligations. 6. GUARANTEED MAXIMUM PRICE 6.1 Guaranteed Maximum Price. The Guaranteed Maximum Price for the Project work is FOUR MILLION FOUR HUNDRED NINETY -FOUR THOUSAND THIRTY -THREE DOLLARS and NO CENTS ($4,494,033.00). The Guaranteed Maximum Price may only be adjusted by the following: (a) a CITY directed change to a Trade Contract; (b) Differing Site Conditions; (c) changes to a Trade Contract directed by a governmental agency with jurisdiction over the Project or portions thereof; (d) changes to a Trade Contract caused by the CITY or a CITY's Consultant other than BARNHART; (e) changes to a Trade Contract necessitated by amendment(s) or enactment(s) of laws, rules, ordinances or regulations applicable to the Project or portions thereof which could not be reasonably anticipated or foreseen by BARNHART at the time this Agreement was entered into; (f) the total aggregate amount of the Trade Contracts for: (1) casework, (2) flooring, (3) specialties, and /or (4) ceramic tile less the total aggregate amount of Barnhart's Contingency included in these four Trade Contracts, which have not been awarded at the time this Agreement • is entered into; (g) CITY deletions of Project work to be performed under a Trade Contract and /or (h) additional costs arising out of Permissible Delays, as 13 provided herein. In the event changes are caused in whole or in part by the • acts, omissions or other conduct of BARNHART or its employees, agents or representatives, BARNHART's responsibility shall be equitably apportioned. Adjustments to the Guaranteed Maximum Price shall be reflected in a written amendment duly executed by the CITY and BARNHART ( "CCS Adjustment Amendments "). 6.2 BARNHART At -Risk. The Parties agree that: (a) BARNHART shall be responsible for ensuring that the Guaranteed Maximum Price, is not exceeded; (b) the CITY will not be responsible to expend any amount for the Project work in excess of the Guaranteed Maximum Price; and (c) any amount for the Project work over the adjusted Guaranteed Maximum Price shall be the full responsibility of BARNHART and BARNHART shall proceed with the Project as approved and pay with its own funds (after exhaustion of BARNHART's Contingency) all costs in excess of the Guaranteed Maximum Price. The Parties agree that the City shall have the right to not make a payment to BARNHART and shall have the right to retain any portion of the Contract Price necessary to complete the Project work if the total aggregate amount of the cost to complete the Project work exceeds the Guaranteed Maximum Price. BARNHART agrees that it shall be at risk for costs due to: (a) scope gaps and /or omissions in the division of work between the Trade Contractor(s); (b) constructability errors in the Plans and Specifications; (c) those conditions not included and /or wrongly included in the Plans and Specifications; and /or (d) any • delay attributable to BARNHART, except that BARNHART shall not be responsible and /or liable for design errors and /or other errors in the Design Documents attributable to the Architect, Engineer and /or design team. 7.1 Contract Price for Basic Services. The Contract Price for BARNHART's performance of the Basic Services under this Agreement shall consist of the following components: (a) a fixed fee in the amount ONE HUNDRED NINETY - TWO THOUSAND ONE HUNDRED AND SIX DOLLARS AND NO CENTS ($192,106.00), which is four and one -half percent (4.5 %) of the Guaranteed Maximum Price, excluding BARNHART's Contingency ( "Percentage Payment "); and (b) a fixed amount of THIRTY -FOUR THOUSAND SEVEN HUNDRED SEVENTY -FIVE DOLLARS AND NO CENTS ($34,775.00) per month for the costs of the items and services for the General Conditions which are set forth in Exhibit C, during the Construction Phase of the Project ( "General Condition Payment "). In no event shall the General Condition Payment exceed THREE HUNDRED EIGHTY -TWO THOUSAND FIVE HUNDRED AND TWENTY -FIVE DOLLARS AND NO CENTS ($382,525.00) without additional written authorization from the CITY. The Parties agree that the Percentage Payment shall be increased by four and one -half percent (4.5 %) of the total aggregate amount of the Trade Contracts for: (1) casework, (2) flooring, (3) specialties, • and /or (4) ceramic tile less the total aggregate amount of Barnhart's 14 • Contingency included in these four Trade Contracts, which have not been awarded at the time this Agreement is entered into. The Percentage Payment and General Condition Payment shall be collectively referred to as the "Contract Price ". The Contract Price includes, but is not limited to, the personnel expenses (inclusive of all benefits and burdens), fees and personnel expenses of any sub - consultant or subcontractor to BARNHART, travel for personnel to and from the Project Site, travel within the Counties of San Diego and Orange, insurance and all other overhead /administrative expenses or costs associated with performance of the Basic Services. The CITY shall have the right to renegotiate the Contract Price if it deletes Project work that, in the aggregate, results in a reduction of the combined value of all the Trade Contracts for the Project (excluding BARNHART's Contingency) by ten percent (10 %) or more. n LJ 7.2 Changes affecting BARNHART. BARNHART shall have a claim for additional compensation in excess of the Contract Price for additional services provided to the CITY in the event that additional services are required or are necessary due to: (a) Change Orders that, in the aggregate, results in an increase in the combined value of all the Trade Contracts for the Project (excluding BARNHART's Contingency) by ten percent (10 %) or more; (b) the default or termination of the Architect or a Trade Contractor; (c) damage to the Project prior to completion by fire or other casualty, except to the extent caused by BARNHART; (d) the addition of future systems, facilities or equipment not included within the scope of the Project as reflected in the cumulative Trade Contracts awarded by the CITY for Project Construction, unless the failure to include these items is attributable to BARNHART; (e) the need to conduct significant investigation of existing conditions or facilities or to provide measured drawings thereof; (f) the CITY's selection, procurement or installation of furniture, furnishing or equipment not included within the scope of the Project as reflected in the cumulative Trade Contracts awarded by the CITY for Project construction; and /or (g) arising out of Permissible Delays. BARNHART shall not provide any additional services prior to receiving written permission from the Designated CITY Representative. 7.3 CITY Payment of the Contract Price. 7.3.1 BARNHART Monthly Billing Statements. BARNHART shall submit monthly billing invoices to the CITY for payment of the Contract Price for Basic Services, and authorized Additional Services performed or incurred in the immediately prior month. The Parties agree that: (a) the Percentage Payment shall be paid as the Project work proceeds based on the percentage of work performed; and (b) after issuance of the Notice to Proceed, the General Condition Payment shall be paid in equal monthly installments. 15 7.3.2 CITY Payments of Contract Price. Within thirty (30) days of the date of • the CITY's receipt of BARNHART's billing invoices, CITY will make payment to BARNHART of undisputed amounts of the Contract Price due for Basic Services, authorized Additional Services, and General Conditions' costs. Five percent (5 %) of all payments will be retained by the CITY. Provided that the CITY does not have any claim thereto, the CITY shall authorize release of any retained funds within thirty (30) days of BARNHART's completion of all its obligations under this Agreement. No deductions shall be made or withheld from payments due BARNHART hereunder on account of any penalty, assessment, liquidated damages or other amounts withheld by the CITY from payment to the Architect or any Trade Contractor. 7.4 CCS Contingency Shared Savings. To the extent the BARNHART Contingency set forth in the CCS is unexpended at the completion of the Project, the remaining BARNHART Contingency shall be shared between the CITY and BARNHART in the following percentage: the CITY seventy percent (70 %) and BARNHART thirty percent (30 %). Any payment due BARNHART hereunder, to which the City does not have a claim, will be paid thirty (30) days after BARNHART's completion of all terms of this Agreement. 7.5 Construction Costs Less Than Guaranteed Maximum Price. If upon Final Completion of each and every Trade Contract, the actual cost of constructing the Project which shall include: (a) the amount actually paid to the Trade Contractors for labor, materials, equipment, administrative costs, overhead, and profit under the Trade Contracts; and (b) sales, use, gross receipts and similar taxes, is less than the Guaranteed Maximum Price, as adjusted by CCS Adjustment Amendments and excluding BARNHART'S Contingency, the difference between the total actual cost of constructing the Project and the adjusted Guaranteed Maximum Price shall be retained in full by the CITY. 8. DELAYS 8.1 Permissible Delays. If a Permissible Delay occurs, the Completion Date shall be extended for the period of time caused by such Permissible Delay. If the CITY and BARNHART agree that a Permissible Delay has occurred and the period of time that the Completion Date should be extended as a result of the Permissible Delay, the Completion Date shall be extended by written agreement of the Parties. 8.2 BARNHART's Responsibility for Delays. In the event of a delay other than a Permissible Delay, damages will be sustained by the CITY. Execution of this Agreement shall constitute agreement by the Parties that if the Project is not substantially completed by the Completion Date, the CITY will suffer damages, the actual amount of which is impractical and infeasible to determine. • Therefore, the CITY and BARNHART agree that BARNHART shall pay to the 16 CITY as liquidated damages, and not as a penalty, the sum of Five Hundred Dollars ($500.00) per day for each and every day of delay beyond the Completion Date, as adjusted for Permissible Delays, that the Project is not substantially completed. If BARNHART fails to pay such liquidated damages, the CITY may deduct the amount thereof from any money due or that may become due to BARNHART under this Agreement. The Parties expressly agree that this liquidated damage provision is not intended to and does not cover claims by Trade Contractors, their subcontractors or suppliers for damages caused by delays attributable to BARNHART. The Parties also agree that this liquidated damage provision does not: (a) waive or release BARNHART from liability for said claims, if any, and /or (b) relieve BARNHART of its obligation to indemnify, defend and hold harmless the CITY from said claims. 9. INSURANCE AND INDEMNITY 9.1 Without limiting BARNHART's indemnification of CITY, and prior to commencement of work, BARNHART 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. . 9.1.1 Certificates of Insurance. BARNHART shall provide Certificates of Insurance with original endorsements to 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 of this Agreement. Current Certification of Insurance shall be kept on file with the CITY at all times during the term of this Agreement. 9.1.2 Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. 9.1.3 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. 9.1.4 Coverage Requirements. 9.1.4.1 Workers' Compensation Coverage. BARNHART shall maintain . Workers' Compensation Insurance and Employer's Liability Insurance for its employees in accordance with the laws of the 17 State of California. In addition, BARNHART 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 the CITY at least thirty (30) days prior to such change (10 day written notice for nonpayment of premium). 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 BARNHART for CITY. 9.1.4.2 Commercial General Liability Coverage. BARNHART 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. 9.1.4.3 Automobile Liability Coverage. BARNHART shall maintain • automobile insurance covering bodily injury and property damage for all activities of BARNHART 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. 9.1.4.4 Professional Errors and Omissions Insurance. BARNHART 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). 9.1.5 Endorsements. Each commercial general liability and automobile liability insurance policy shall be endorsed with the following specific language: 9.1.5.1 The CITY, it's elected or appointed officers, officials, employees, agents and volunteers, excluding the members of the design team, Architects and Engineers, are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of BARNHART. 9.1.5.2 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 in liability arising directly or indirectly from BARNHART'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. 9.1.5.3 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. 9.1.5.4 The insurer waives all rights of subrogation against CITY, its elected or appointed officers, officials, employees, agents and volunteers. 9.1.5.5 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. 9.1.5.6 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) days written notice has been • received by CITY (10 day written notice for nonpayment of premium). 9.1.6 Timely Notice of Claims. BARNHART shall give CITY immediate and timely notice of claims made or suit instituted arising out of or resulting from BARNHART's performance under this Agreement. 9.1.7 Additional Insurance. BARNHART 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 Project work. 9.1.8 Builder's Risk Completed Value Insurance. During the progress of construction of the Project, the CITY shall obtain and maintain one or more policies of Builder's Risk Completed Value Insurance covering all insurable work of the Project, including extended coverage and insurance against vandalism and malicious mischief, perils of fire, sprinkler leakage, acts of civil authorities, collapse and flood, to the full insurable value of the work of the Project and coverage for work of the Project whether in progress or completed. The CITY and BARNHART waive all rights against the other, the Architect, and the Trade Contractors for damages caused by perils covered by insurance obtained under this provision. The policy(ies) of Builder's Risk Completed Value Insurance shall contain express waivers of subrogation 19 by the insurer(s) issuing such policy(ies) to the extent of damages or losses covered thereunder. 9.2 Indemnity. 9.2.1 BARNHART Indemnity of CITY. To the fullest extent permitted by law, BARNHART shall indemnify, defend and hold harmless CITY, its City Council, boards and commissions, officers, agents, representatives 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 [other than to the work of the Project itself and property damage covered by the Builder's Risk Completed Value Insurance obtained by the CITY, demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' 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 work performed or services provided under this Agreement by BARNHART including, but not limited to, claims that BARNHART caused any Trade Contractor delay and /or damage; and /or BARNHART's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of BARNHART, 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 BARNHART to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties or caused by the actions or inactions of the separate consultants of the Indemnified Parties, including, but not limited to the Architect and Engineers. 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 BARNHART. 9.2.2 BARNHART as Additional Insured. CITY shall require its Trade Contractors, for the construction of the Project, to indemnify BARNHART and to add BARNHART as an additional insured on such Trade Contractor's general liability insurance policy required under its Trade Contract. 20 10. TERMINATION; SUSPENSION 10.1 Termination for Default. Either the CITY or BARNHART may terminate this Agreement upon seven (7) days advance written notice to the other if there is a default by the other Party in its performance of a material obligation hereunder and such default in performance is not caused by the Party initiating the termination. Such termination shall be deemed effective the seventh (7th) day following the date of the written termination notice, unless during such seven (7) day period, the Party receiving the written termination notice shall commence to cure it default(s) and diligently thereafter prosecute such cure to completion. In addition to the CITY's right to terminate this Agreement pursuant to the foregoing, the CITY may terminate this Agreement upon written notice to BARNHART if: (a) BARNHART becomes bankrupt or insolvent, which shall include without limitation, a general assignment for the benefit of creditors or the filing by BARNHART or a third party of a petition to reorganize debts or for protection under any bankruptcy or similar law or if a trustee or receiver is appointed for BARNHART or any of BARNHART's property on account of BARNHART's insolvency; or (b) if BARNHART disregards applicable laws, ordinances, rules or regulations. If the CITY exercises the right of termination hereunder, the amount due to BARNHART, if any, shall be based upon Basic Services, authorized Additional Services and authorized allowable Reimbursable Expenses incurred or provided prior the effective date of the 40 CITY's termination of this Agreement, reduced by losses, damages, or other costs sustained by the CITY arising out of the termination of this Agreement or the cause(s) for termination of this Agreement. Payment of the amount due, if any, shall be made by the CITY only after completion of the Construction Phase of the Project. BARNHART shall remain responsible and liable to the CITY for all losses, damages or other costs sustained by the CITY arising out of termination pursuant to the foregoing or otherwise arising out of BARNHART's default hereunder, to the extent that such losses, damages or other costs exceed any amount due to BARNHART hereunder for Basic Services, authorized allowable Reimbursable Expenses or authorized Additional Services. 10.2 CITY's Right to Suspend. The CITY may, in its discretion, suspend all or any part of the construction of the Project work under a Trade Contract or BARNHART's services hereunder; provided, however, that if the CITY shall suspend construction of the Project work under a Trade Contract or BARNHART's services hereunder for a period of sixty (60) consecutive days or more and such suspension is not caused by BARNHART or the acts or omissions of BARNHART, upon recession of such suspension, the Contract Price will be subject to be adjusted to provide for actual costs and expenses incurred by BARNHART as a direct result of the suspension and resumption of Project construction or construction under a Trade Contract or BARNHART's services hereunder. 21 10.3 CITY's Termination of Agreement for Convenience. The CITY may, at any time, upon seven (7) days advance written notice to BARNHART terminate this Agreement for the CITY's convenience and without fault, neglect or default on the part of BARNHART. In such event, the Agreement shall be deemed terminated seven (7) days after the date of the CITY's written notice to BARNHART or such other time as the CITY and BARNHART may mutually agree upon. In such event, the CITY shall make payment of the Contract Price to BARNHART for services provided through the date of termination plus actual costs incurred by BARNHART directly attributable to such termination plus reasonable demobilization costs. 10.4 BARNHART Suspension of Services. If the CITY shall fail to make payment of the Contract Price when due to BARNHART hereunder, BARNHART may, upon seven (7) days advance written notice to the CITY, suspend further performance of services hereunder until payment in full is received. In such event, BARNHART shall have no liability for any delays or additional costs of Project construction due to, or arising out of, such suspension. 11. GENERAL 11.1 Cooperation. BARNHART agrees to work closely and cooperate fully with CITY, its designated representative and any other agencies that may have jurisdiction or interest in the work to be performed. CITY agrees to cooperate • with BARNHART on the Project. 11.2 City Direction. BARNHART shall discuss and review all matters relating to policy and Project direction with CITY in advance of all critical decision points to ensure the Project proceeds in a manner consistent with CITY goals and policies. 11.3 Marginal Headings; Captions. The titles of the various Paragraphs of this Agreement and the Articles of these Conditions are for convenience of reference only and are not intended to and in no way shall enlarge or diminish the rights or obligations of BARNHART and the CITY hereunder. 11.4 Cumulative Rights; No Waiver. Duties and obligations imposed by this Agreement and rights and obligations hereunder are in addition to and not In lieu of any imposed by or available at law or in equity. No action or failure to act by the CITY hereunder shall be deemed a waiver of any right or remedy afforded hereunder or acquiesce or approval of any breach or default by BARNHART. 11.5 Notices. Notices to BARNHART or the CITY are required or desire to serve on the other shall be valid only if addressed to the other as set forth below or as modified by notice hereunder from time to time. Notices shall be effective only • if by personal delivery requiring signature acknowledging receipt or by United 22 • States Mail, Certified, Return Receipt Requested, First Class, postage fully pre- paid. Notices effectuated by personal service shall be deemed effective as of delivery of such notices. Notices effectuated by United States Mail shall be deemed effective the third (3rd) working day after deposit in the United States Mail. Notices hereunder shall be addressed as follows: If to CITY: Attn: Steve Badum, Director Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3311 Fax: 949 - 644 -3318 If to BARNHART: Eric Stenman General Counsel Douglas E. Barnhart, Inc. 10760 Thornmint Road • San Diego, CA 92127 Phone: 858 - 385 -8200 Fax: 858 - 385 -8201 11.6 Disputes. 11.6.1 Continuation of BARNHART Services. Except in the event of the CITY's failure to make undisputed payment of the Contract Price due to BARNHART, notwithstanding any disputes between the CITY and BARNHART hereunder, BARNHART shall continue to provide and perform services hereunder pending a subsequent resolution of such disputes. 11.6.2 Mandatory Mediation. All claims, disputes and other matters in controversy between BARNHART and the CITY arising out of or pertaining to this Agreement shall be submitted for resolution by non- binding mediation conducted by a mutually agreeable mediator. The commencement and completion of mediation proceedings pursuant to the foregoing is a condition precedent to either the CITY or BARNHART commencing legal proceedings. 11.6.3 Governing Law. This Agreement shall be governed by and construed • with the laws of the State of California and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 23 11.6.4 Execution in Counterparts. This Agreement may be simultaneously • executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 11.7 Severability. If any provision of this Agreement is deemed illegal, invalid unenforceable or void by any court of competent jurisdiction, such provision shall be deemed stricken and deleted herefrom, but all remaining provisions will remain and continue in full force and effect. 11.8 BARNHART Accounting Records. BARNHART shall maintain complete and accurate records of its personnel engaged in performing any service hereunder, personnel expenses, authorized allowable Reimbursable Expenses and other direct costs incurred in connection with performance under this Agreement. Records shall be maintained on the basis of generally accepted accounting principles applied consistently and shall be available for inspection or reproduction by the CITY upon reasonable request at any time during BARNHART's performance hereunder. Following completion of the Project and the Agreement or the termination of this Agreement, BARNHART shall maintain accounting records for three (3) years or such longer period required by applicable law, ordinance, rule or regulation, during which time such records shall be available to the CITY or as otherwise required by law, ordinance, rule or regulation for inspection or reproduction. 11.9 Equal Opportunity Employer. BARNHART represents that it is an equal . opportunity employer and it shall not discriminate against the CITY, its employees, agents, or representatives, any subcontractor, Trade Contractors, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 11.10 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. 11.11 Compliance with Laws. BARNHART 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. 11.12 Conflicts of Interest: BARNHART or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (a) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (b) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. .If subject to the Act, BARNHART shall conform to all requirements of the Act. Failure to do so 24 constitutes a material breach and is grounds for immediate termination of this Agreement by the CITY. BARNHART shall indemnify and hold harmless the CITY, its employees, agents or representatives for any and all claims for damages resulting from BARNHART's violation of this Section. 11.13 Subcontracting. The Parties recognize that a substantial inducement to the CITY for entering into this Agreement is the professional reputation, experience and competence of BARNHART. Assignments of any or all rights, duties or obligations of BARNHART under this Agreement will be permitted only with the express written consent of the CITY. BARNHART shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of the CITY. 11.14 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 the CITY, which approval shall not be unreasonable withheld. 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 BARNHART, or of the interest of any general partner or joint venturer or syndicate member or cotenant if BARNHART is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of BARNHART. 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. 11.15 Independent Contractor. It is understood that the CITY retains BARNHART on an independent contractor basis and BARNHART is not an agent or employee of the CITY. The manner and means of conducting the work are under the control of BARNHART, except to the extent they are limited by statute, ordinance, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for BARNHART or any of BARNHART's employees or agents, to be the agents or employees of the CITY. BARNHART shall have the responsibility for and control over the means of performing the work, provided that BARNHART is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give the CITY the right to direct BARNHART as to the details of the performance or to exercise a measure of control over BARNHART shall mean only that BARNHART shall follow the desires of the CITY with respect to the results of the services. 11.16 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 this Agreement or any other rule of construction which might otherwise apply. 25 11.17 Entire Agreement. This Agreement constitutes the entire agreement and understanding between the CITY and BARNHART concerning the subject matter hereof, replacing and superseding all prior agreements or negotiations, whether written or verbal. No term or condition of this Agreement shall be modified or amended except by writing executed by the CITY and BARNHART. This Agreement and the following enumerated documents constitute the entirety of the Agreement: the RFP, the RFP Response, Exhibit A, Rate Schedule and Exhibit "B" General Conditions Items /Services. [SIGNATURES ON FOLLOWING PAGE] 26 • IN WITNESS HEREOF, the Parties have executed this Agreement as of the date set forth above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, A Municipal Corporation By: By: Aaron C. Harp Don Webb, Mayor Assistant City Attorney for the City of Newport Beach ATTEST: DOUGLAS E. BARNHART, INC. A California Corporation 0 is LaVonne Harkless, (Corporate Officer) City Clerk Title: Exhibit A - Project Description - Site Map Exhibit B - Construction Cost Statement Exhibit C — Site General Conditions f:\ users \pbMshared \agreements \barnhart -back bay- cmar.doc • Print Name: 27 � a s al s Ev I-. z bo = r r PRE NOTES B O EXISTING TRAIL TEAC NJ �`� Z - _ �\ ` P� ® NEW TRAIL N.I.C. (MATCH EXIST. TRAIL CONSTRUCTION J' �..� \ / BE M;:1 l�9F�. _ @'� ( -�- f_ D.G. & TREK BOARDWALK —••— TEMPORARY SECURITY 3 �9? _. I ERVICE e :, ��'I 7Q i AND DUST(WINDSCREEN WITH SIGN 'NO ADMLTTANCE" / 2 ` TOR I OUTDOOR LEARNING STATIONS S k� •s� - \ 1 any p. BE +. % E P. W. !' \'�, l: �f� GATE '..�.. TEMPORARY SECURITY SCREEN WITH "NO DEMONSTRATION `�/ SIGN ADMITTANCE" — TEMPORARY SECURITY FILTRATION MARSH UCI CREW PARK 7 STALL `� TRAP SCREEN WITH EXCEPT RESTORATION EXCEPT RESTORATION FUTURE CONSTRUCTION EXPANSION ` TEAM - NO VEHICLES' STAGING AREA �. ` .............. \ �- O5 TEACHING/OBSERVATION STATION C \�\ NOTE: REFER TO CIVIL PLANS FOR HORIZONTAL AND VERTICAL CONTROLS O _r MAILBOX (NIC)r� - / —,� True x LOCATE AS DIRECTED a north � _. y \�. B -ACKBq p SITE PLAN a 27 SYMBOL SCHEDULE 24 ® BACK SAY SCIENCE CENTER 800 SIre6makar Road Newport Beach: Site Plan A1.1 N u.asnn — Rw..,mi000 • "..n ewv na, r.0 uren,var.uc. ",� CA •••° "•• cmmmnn.wne. cwo tl`Wc NEWPORT BEACH Hnc w.a rcvAxnexr •^•S X97 � a s al s z I-. z bo = � a s 0 • EXHIBIT B Construction Cost Statement BID PKG NAME AMOUNT 1 Site Work, Grading & Paving 682,000.00 2 Irrigation $ 65,000.00 3 Concrete & Masonry $ 998,000.00 4 Structural Steel $ 86,940.00 5 Rough Framing $ 702,000.00 7 Sheet Metal, Skylights & Roofing $ 151,000.00 8 Drywall, Paint& Acoustics $ 519,357.00 11 Plumbing & Site Utilities $ 517,936.00 12 Fire Sprinklers $ 78,220.00 13 HVAC $ 175,000.00 14 Electrical $ 422,500.00 15 Steel Laboratm Casework $ 71,080.00 — SUOTOZA 0 ,P 1� 400 03 EXCLUDES CM PERCENTAGE PAYMENT AND GENERAL CONDITION PAYMENT BARNHART EXHIBIT B tz a z z s a z -I s tst n City of Newport Beach BACK BAY SCIENCE CENTER General Conditions • 9 • UNIT PRICES EXTEN ION QTY UNIT LABOR MATL EQUIP LABOR MAT'L EQUIP TOTAL GENERAL CONDITIONS Supervision 48 WKS 2,613.00 - - 125,424 - - 125,424 Project Management 48 WKS 2,713.50 - - 130,248 - - 130,248 Clerk 48 WKS 877.70 - - 42,130 - - 42,130 Scheduler 48 WKS 375.20 - - 18,010 - - 18,010 Safety Manager 11 MTH 107.20 - - 1,179 - - 1,179 Field Office Rental 11 MTH - - 419.00 - - 4,609 4,609 Field Office Supplies 48 WKS - 75.00 - - 3,600 - 3,600 Field Telephone 11 MTH - - 425.00 - - 4,675 4,675 Field Toilets 11 MTH - - 450.00 - - 4,950 4,950 Project Gas & Diesel 11 MTH - 450.00 - - 4,950 - 4,950 Dumpster Rental 11 MTH - - 128.00 - - 1,408 1,408 Construction Fence (ALLOWANCE) 2000 LF - - 3.70 - - 7,400 7,400 Weekly Clean 48 WKS - - 75.00 - - 3,600 3,600 Final Clean 9700 SF - - 0.35 - - 3,395 3,395 CM Equipment 11 MTH - - 1,812.00 - - 19,932 19,932 Temp Elect. Connection 100 LS - - 30.00 - - 3,000 3,000 Temp Elect Usage 11 MTH - - 275.00 - - 3,025 3,025 Jobsite Signage 1 LS - 991.00 - 991 - 991 PROJECTTOTALS 316,990 1 9,541 1 55,994 1 382,525 • 9 • 0 EXHIBIT D At Risk Comparison Chart • s Construction Manager At Risk Comparison Chart (1) Includes 11.91 % overhead and profit (2) Construction Management by Public Works Staff (3) Includes 4.31% Contractor's Fee (4) Construction Management provided by Griffith Structures The compensation appears to be consistent with other similar building projects recognizing that the cost of the General Conditions, as a precentage of the total construction costs is higher for smaller projects than it is for larger projects. That is because the personnel needed for a $4M project are almost the same as for a $10M project. In addition, the project benefits from the "at risk" aspects of the Guaranteed Maximum Price. Exhibit D Percentage of Construction Contract Amount Project Name Contractor or Construction Manager Contract Amount General Conditions Fee (Overhead & Profit) Total Back Bay Science Center Douglas E. Barnhart, Inc. $4,654,033 8.27% 4.50% 12.777% CDM State Beach Improvements Wee er Bros. $3,945,000 18.08%(l) N.A. 2 Mariners Library Howard S. Wright $5,490,000 13.32%(3) 4.00%(4) 17.32% Laguna Hills City Hall Douglas E. Barnhart, Inc. $9,730,987 5.15% 4.00% 9.15% Mission Viego- Sierra Rec. & Fitness Center Douglas E. Barnhart, Inc. $1,767,374 20.53% 4.00% 24.53% (1) Includes 11.91 % overhead and profit (2) Construction Management by Public Works Staff (3) Includes 4.31% Contractor's Fee (4) Construction Management provided by Griffith Structures The compensation appears to be consistent with other similar building projects recognizing that the cost of the General Conditions, as a precentage of the total construction costs is higher for smaller projects than it is for larger projects. That is because the personnel needed for a $4M project are almost the same as for a $10M project. In addition, the project benefits from the "at risk" aspects of the Guaranteed Maximum Price. Exhibit D 11 EXHIBIT E � Amendment No. 3 to Professional Services Agreement AMENDMENT NO. 3 TO PROFESSIONAL SERVICES AGREEMENT WITH GAIL P. PICKART, P.E. FOR PROJECT MANAGEMENT SERVICES FOR THE BACKBAY SCIENCE CENTER w H- THIS AMENDMENT NO. 3 TO PROFESSIONAL SERVICES AGREEMENT, entered X into this day of 2006, by and between the CITY OF w NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "City ") and Gail P. Pickart, P.E., an individual whose business address is 3810 East Coast Highway, Suite 4, Corona del Mar, California, 92625], (hereinafter referred to as "Consultant'), is made with reference to the following: RECITALS A. On May 31, 2002, CITY and CONSULTANT entered into a Professional Services Agreement, hereinafter referred to as "Agreement", for project management services for the the construction of a new 13,000 square foot multi - functional building to house the Back Bay Science center on Shellmaker Island in the Upper Newport Bay Geological Reserve, • hereinafter referred to as "Project. . B. City and Consultant have entered into two separate Amendments of the Agreement, the latest dated May 24, 2005. C. City desires to enter into this Amendment No. 3 to reflect additional services not included in the Agreement or prior Amendments and to extend the term of the Agreement to December 31, 2007]. D. City desires to compensate Consultant for additional professional services needed for Project. E. City and Consultant mutually desire to amend Agreement, hereinafter referred to as "Amendment No. 3, as provided here below. NOW, THEREFORE, the parties hereto agree as follows: 1. Consultant shall be compensated for services performed pursuant to this Amendment No. 3 according to "Exhibit A" dated February 15, 2006, attached hereto. 2. Total additional compensation to Consultant for services performed pursuant to this Amendment No. 3 for all work performed in accordance l with this Amendment, including all reimburseable items and subconsultant fees, shall not exceed Forty Five Thousand Dollars ($45,000). 3. The term of the Agreement shall be extended to December 31, 2007. 4. Except as expressly modified herein, all other provisions, terms, and covenants set forth in Agreement shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 3 on the date first above written. APPROVED AS TO FORM: Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: LaVonne Harkless, City Clerk Attachment: Exhibit A f:\ users \pbw \shared \agreements \master templatesUank- amend.doc CITY OF NEWPORT BEACH, A Municipal Corporation MM Mayor for the City of Newport Beach CONSULTANT: Gail P. Pickart, P.E. • Gail P. Pickart, P.E. Consulting Civil Engineer • 3810 East Coast Highway, Suite 4 Corona del Mar, California 92625 (949) 872 -9053 cell (949) 640 -1076 fax February 15, 2006 Mr. Lloyd Dalton City of Newport Beach Public Works Department 3300 Newport Boulevard Newport Beach, CA 92658 -8915 Subject: Back Bay Science Center on Shellmaker Island in the Upper Newport Bay Ecological Reserve Dear Lloyd: Since February 2002, I have been providing project management services for the Back Bay Science Center in accordance with a Professional Services Agreement with the City of Newport Beach. The Agreement established an initial compensation limit of $29,900 and covered a term extending to June 30, 2004. On March 23, 2004, Amendment No. 1 to that initial Professional Services Agreement was approved by the City Council. Amendment No. 1 authorized an increase in my compensation budget of $23,400 for a new total of $53,300, and extended the term of the Agreement to September 30, 2004. On May 24, 2005, Amendment No. 2 to the Professional Services Agreement was approved by the City Council. Amendment No. 2 authorized a further increase in compensation not to exceed $26,250 for a new total of $79,550, and extended the term of the Agreement to October 30, 2005. Design work for the project was substantially completed in the Spring of 2004. No construction bids were received in June 2004, after the project was publicly advertised. It became apparent that the funds available for construction were significantly less than current costs which have increased substantially in the past 2 - 3 years. The project design team explored several alternatives in an effort to reduce the cost of construction, including the use of a pre- engineered steel framework for the buildings rather than a conventional wood framework. None of these concepts proved to be particularly cost • effective or desirable. Mr. Lloyd Dalton February 15, 2006 Page Two Concurrent with redesign considerations, additional funding sources were sought and contribution commitments have been received. With additional funding available, the project team decided to proceed with construction re- bidding using a "multiple prime" project delivery method coordinated by a Construction Manager at Risk with a Guaranteed Maximum Price (CMAR -GMP). A Qualified Based Selection process was implemented and the firm of Douglas E. Barnhart, Inc. was chosen to be the CMAR -GMP. With the assistance of Barnhart, sixteen bid packages were prepared for advertisement to various trade contractors. Bids have been received and are being presented to the City Council for award or rejection. In addition to considering award of the construction contracts, the City Council will consider entering into a Construction Management Agreement with Barnhart. In anticipation of the City Council awarding contracts and the commencement of construction work, I propose to continue providing project management services during the estimated 12- month construction period. A not -to- exceed amount of $45,000 is proposed for such services. This amount is based on an average of 8 - 9 hours per week for 50 weeks X $105 per hour = $44,625.00. An Amendment (No. 3) to my Professional Services Agreement is requested extending its term to December 31, 2007, and increasing the authorized compensation amount by $45,000 to a new total of $124,550 ($79,550 + $45,000 = $124,550). Thank you for your consideration and I look forward to continuing to work with you and the entire project team during construction of this unique project. Call me at (949) 872 -9053 if there are any questions regarding this proposal. Sincerely, Gail P. Pickart, P.E. City of Newport Beach NO. BA- 06BA -045 BUDGET AMENDMENT 2005 -06 AMOUNT: $s,6os,ssa.00 EFFECT ON BUDGETARY FUND BALANCE: is X Increase Revenue Estimates Increase in Budgetary Fund Balance X Increase Expenditure Appropriations AND �X Decrease in Budgetary Fund Balance Transfer Budget Appropriations No effect on Budgetary Fund Balance SOURCE: from existing budget appropriations X from additional estimated revenues X from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: To increase revenue estimates and expenditure appropriations related to the proposed Back Bay Science Center capital project. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Acrwunt Description 010 3605 General Fund 230 3605 Tidelands Fund (NB Restoration) Amou nt Debit Credit $1,661,164.00 $311,000.00 REVENUE ESTIMATES (3601) Description Fund /Division Account Description 7457 Back Bay Science Center Capital Project Fund 457 4879 CA Dept of Fish & Game 112,000.00 457 5927 CA Wildlife Foundation 69,000.00 457 4911 OC Health Care Agency 1,230,000.00 457 4930 UCI 308,000.00 457 48791 CA Dept of Fish & Game (WCRA Grant) 615,400.00 9457 6000 Transfers In (From NB Restoration Fund) 311,000.00 9457 6000 Transfers In (From Gen Fund MiOcean Matc 500,000.00 9457 6000 Transfers In (From Gen Fund) 1,161,164.00 457 4929 Other City Funds, RDA Reimbursable 600,000.00 457 4940 CA Coastal Conservancy 400,000.00 457 4928 MiOcean 500,000.00 EXPENDITURE APPROPRIATIONS (3603) Signed: • Financial Approval: Administrativ 0rvices Director Signed: rY %►• ✓x, Administrative Approyy : City Manager Signed: City Council Approval: City Clerk 1.161.164.00 311,000.00 cr crc cr uace 3 v� Date uace Description Division Number 7457 Back Bay Science Center Capital Project Fund Account Number C5100661 Back Bay Science Center Division Number 9010 General Fund Account Number 9900 Transfers Out Division Number 9230 Tidelands Fund (NB Restoration) Account Number 9900 Transfers Out Division Number 9010 General Fund Account Number 9900 Transfers Out Signed: • Financial Approval: Administrativ 0rvices Director Signed: rY %►• ✓x, Administrative Approyy : City Manager Signed: City Council Approval: City Clerk 1.161.164.00 311,000.00 cr crc cr uace 3 v� Date uace Back Bay Science Center Bid Award, Budget Amendment Newport Beach City Council Tuesday, February 28th, 2006 z 3 s 5 D What's the Project (this Phase) All site improvements, including: . Grading of site, including wetlands /marsh • Parking area • Utilities • Relocation of existing trailers, demo Three wings of the building: . Teaching Lab . Water Quality Research & Testing Lab . Restrooms & DF &G Storage Wing ....and mat foundation for Admin Wing Later Phase (not included in Budget) UCI Crew Building Reconstruction < Finishing /Equipping Administrative Wing California Dept. of Fish & Game (MRCP) FUnCgng Wildlife Conservation and Restoration Act Grant (Planning +Design) $ 369,670 Wildlife Conservation and Restoration Act Grant (Construction) $ 615,400 American Trader Oil Spill Funds $ 112,000 Subtotal. Fish and Garra $ 1.097,000 16.4% Ckty of N wporl Beach American Trader Oil Spill Funds $ 500,000 Newport Bay Restoration Fund $ 311,000 General Fund $ 1,661,164 Site +Trailhead Improvements, RDA reimburseable $ 600,000 Subtotal, CflyofNewpottRoach $ 3,072,164 46.096 Wildlife Conservation Board (CAWIldlife Foundation) $ 69,000 1.0% Co, of Orange. Health Care Agency (Tobacco Settlement Proceeds) $ 1,230,000 18.4% University of California, Irvine (tvlarsh restoration and Site Improvements) $ 308,000 4.6% State Coastal Conservancy $ 400,000 6.0% Mi0cean & Pacific Life Foundation $ 500,000 7.5% Total Funding, All Sources 7b, T- Project Costs Planing, Design, Permitting. CEQA, Temp WO Lab Housing (expended) $ 869,600 Relocate Existing DF &G Modular Units $ 25,000 Construction Support Professional Services $ 203,000 Construction (including recommended bid packages, rebids) $ 4,729,033 Contingency for Unseen Work (5 %) $ 245,000 Constriction Management Pre - Construction $ 29,900 General Conditions $ 382,515 4.5% Fee $ 192,106 Subotar. Consfrrction Management $ 604,531 Total Project Costs $ 6.676,164 0 Issues for Council to Consider The Project itself was thought to cost about $4.5 million in 2002 — it's now $6.6 million (though that includes design, contingency, construction management, etc) The City's share of this Project has grown to 46 %. Is that too much given the City's limited role at the BBSC? Are there long -term benefits to the City's involvement in the BBSC that warrant the City's funding? • Role in Water Quality & UNB Educational Efforts • Role in UNB Management Are the terms for construction management agreement appropriate? Are there other potential funding partners out there? Could some be added later on? Project Timeline Bid Opening was — Jan 26 Award trade contracts — tonight 0 Award Const. Mgr. @ Risk —tonight f0 Construction start = March 2006 �% Construction complete = Feb 2007 How to Find Out More... Web Sites & E -mail us: . w` mcity,newport- beach.r=i.us (City's web site — look under "Projects" then "'Back Bay Science Center ") . WVV\/VJitvvportbay.org (Newport Bay Naturalists and Friends) Feb -28 -2006 03:15pm From-HCA WATER QUALITY LAB 848 218 0426 T -383 F.002/002 F-734 uy "RECEIV D AFTER AGE VDA PRINTEV' 0 California Regional Water Quality Control Board Santa Ana Region 3737 Mein Sb=d Suite 500, Ri"ide. Uiromia 92501.3348 Alga G I.leyd, PA.p. AOOOW $cLwarrsoeUer ag 4,Si namra, Phme (951) 787.4130 • FAX aWd 781 -6288 • TAP (951) 782 -3221 ��r www,wacer6oerds.oaear /yaraseoe February 28, 2006 Mayor Don Webb Newport Beach City Council Members Newport Beach City Hal] 3300 Newport Blvd. Newport Beac)36 CA 92663 Dear Mayor Webb and Members of the Newport Beach City Council: SUPPORT FOR OCHCA WATER QUALITY LABORATORY AND SCIENCE CENTER This is to express our strong support for an appropriation by the City of Newport Beach to assure the completion of the Orange County Public Health Water Quality Laboratory and Back Bay Science Center, to be located on Shellmaker Island The exceptionally well- qualified and dedicated staff of the laboratory have provided data and conducted investigations that have been of immeasurable value to the Regional Board's efforts to identify and address water quality problems In Newport Bay and the watershed as a whole. Construction and operation of the Laboratory and Science Center on Sbellmaker Island will be a significant benefit to the public, facilitating water quality investigations and providing an invaluable educational resource. We hope that the City Council will endorse the great work accomplished at the Water Quality Laboratory by approving the requisite additional funding. Please feel free to contact me at (951) 792 -3284 or Wanda Cross with our Coastal Planning Section at (951) 7824468 should you desire any additional information. ° Ci 5111CfICly, ...- J. Thibeault Executive officer Cddijareia Enlvibronmeard Protecoon Agency p 7 ReeW dPaycr rn r >> 'D w �V N =:7 01/19/2054 02:33 7148949699 SCCWRP PAGE 01 "RECEIVED AfTER AGEND PRINTED:" He SOUTHERN CALIFORNIA COASTAL WATER RESEARCH PROJECT 7171 FENWICK LANE WESTMINSTER, CA 92683 -5218 714 - 894 -2222 FAX 714 -894 -9699 NO= R-� February 28, 2006 Mayor Don Webb Members of the Newport Beach City Council T Newport Beach City Hall c 3300 Newport Boulevard co Newport Beach, California 92663 _o N ` Subject: Funding to complete construction of the new Back Bay Science Center Dear Mayor Don Webb and Members of the Newport.Beach City Council: The Southern California Coastal Water Research Project (SCCWRP) supports the construction of a permanent Public Health Laboratory Water Quality Department (WQD) as part of the new Back Bay Science Centcr at Shellmaker Island. SCCWRP is a nationally recognized research institute that works collaboratively with local agencies to improve the water quality of southern California's ocean and coastal waters. In 1998, the laboratory provided microbiological support for the Bight '98 study headed by SCCWRP. Currently, the laboratory is involved in the Bight '03 study that includes evaluating recently developed rapid test methods for detecting indicator bacteria in water. The results of this study will be used to make recommendations to the State Water Resource Control Board as to whether the new methods are ready for adoption by the State of California. Since relocating to Newport Beach, the laboratory is better situated to continue and expand their involvement with SCCWRP. This location affords the laboratory increased flexibility and time to collect and analyze samples from nearby beaches and watersheds. Closer proximity to the Orange County Sanitation District, South. Orange County Wastewater Authority and University California Irvine has allowed increased participation with inter - laboratory studies with these agencies. The new, larger facility will also allow the laboratory to expand their testing capabilities and provide additional workspace for local and visiting scientists conducting water related studies. Your support to complete the construction of the Back Bay Science Center at Shelltaker Island will enable the laboratory to work more closely with a community of scientists and investigators involved in studies to reduce coastal. water pollution. Sincerely, Stcp� hrn Weisberg, Ph.D. Executive Director A Public Agency for Marine Environmental Research FEB -25 -2006 01:09 PM Flow . Sw&d cr Feundsdon Huntington Beach/Seal Beach Chapter TO: Mayor Don Webb Newport Beach City Council Members Newport Beach City Hall 3300 Newport Beach CA 92663 P.01 "RECEIVED AFTER AGENDA PRINTED:" A-1 o g -A B -DIo February 22, 2006 RE: Letter of Support, Funding to Complete Construction of Orange County Public Health Care Water Quality Laboratory. The Surfrider Foundation is an international non -profit environmental organization dedicated to the protection and enjoyment of the world's waves, oceans and beaches for all people, through conservation, activism, research and education. For over the past 10 years our Huntington Beach/Seal Beach Chapter of Surfrider Foundation has had, and continues to have, a mutually beneficial association with the Orange County Public Health Care Agency regarding projects and programs, such as the Ocean Water Protection Program, directed towards our common goals with respect to marine water quality research and education. Our membership has participated with the Health Care Agency staff on two regional ocean water bight studies (Bight '98 and '03) and the Huntington Beach bacterial contamination investigation. The staff at the Health Care Agency has provided, and continues to provide, our membership with both valid water quality data and scientific information regarding the ocean water quality of our local recreational beaches. In addition, the staff at the Health Care Laboratory provides microbiological expertise and testing services both to Orange County's Public and private organizations involved in projects to improve ocean water quality. We have been involved with the Health Care Laboratory on a number of multi- laboratory microbiological inter- calibration exercises, and the Orange County Health Care Laboratory is considered by many to be the "gold standard" with regard to microbiological testing. A Health Care Laboratory located at Shellmaker Island in Newport Beach would make the microbiological services offered by the laboratory more accessible to the public and the Citizens Water Quality Monitoring activities in Orange County, as well as those recreational beaches in Orange County exhibiting chronic and episodic occurrences of bacterial contamination. For this reason we would urge the Newport Beach City Council to vote approval of the necessary funding to complete the construction of the new Back Bay Science Center at this location. Don S hulz Executive Committee Member Blue Water Task Force Surfrider Foundation, Huntington Beach/Seal Beach Chapter P.O. Box 3087, Long Beach, CA 90803 Surfrider Foundation Newport Beach Chapter 323 Jasmine Corona del Mar, CA 92626 Dear Council Members: ri pG FEB 28 ;9:12 The City of Newport Beach has taken a leadership role in water quality issues, so it is only fitting that the new Marine Lab should be in the city and that the city contribute financially to it. The Newport Beach Chapter of Surfrider Foundation encourages you to vote in favor of this project which will enable us to develop new and better testing methods to protect our ocean and bay. It will also provide wonderful educational opportunities for students and others. Cor ally, N r Steerin C mittee California Regional Water Quality Control Board Santa Ana Region Alan C. Lloyd, Ph.D. 3737 Main Street, Suite 500, Riverside, California 92501 -3348 Arnold Schwarzenegger Agency Secretary Phone (951) 782-4130 • FAX (951) 781 -6288 • TDD (951) 782 -3221 o Governor w .w terboards.ca.gov /santasna February 28, 2006 Mayor Don Webb Newport Beach City Council Members Newport Beach City Hall 3300 Newport Blvd. Newport Beach, CA 92663 Dear Mayor Webb and Members of the Newport Beach City Council: ..� 7. CO .�,..; rt G! _ {3< W � Dr r SUPPORT FOR OCHCA WATER QUALITY LABORATORY AND SCIENCE CENTER This is to express our strong support for an appropriation by the City of Newport Beach to assure the completion of the Orange County Public Health Water Quality Laboratory and Back Bay Science Center, to be located on Shellmaker Island. The exceptionally well - qualified and dedicated staff of the laboratory have provided data and conducted investigations that have been of immeasurable value to the Regional Board's efforts to identify and address water quality problems in Newport Bay and the watershed as a whole. Construction and operation of the Laboratory and Science Center on Shellmaker Island will be a significant benefit to the public, facilitating water quality investigations and providing an invaluable educational resource. We hope that the City Council will endorse the great work accomplished at the Water Quality Laboratory by approving the requisite additional funding. Please feel free to contact me at (95 1) 782 -3284 or Wanda Cross with our Coastal Planning Section at (951) 782 -4468 should you desire any additional information. Sincerely, 4.e d J. 4Thibeault Executive Officer Date S 13 ! D to Copies Sent To: 'E5-Mayor ,(Council Member P anager rney Fr . [,(,/ El O F1 California Environmental Protection Agency �� Recycled Paper