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HomeMy WebLinkAbout23 - Newport Beach Civic Center Project - CW DriverCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 23 April 27, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Stephen Badum sbadum@newportbeachca.gov 949 - 644 -3311 SUBJECT: NEWPORT BEACH CIVIC CENTER PROJECT —APPROVAL OF PROFESSIONAL SERVICES AGREEMENT FOR PROJECT MANAGEMENT & CONSTRUCTION MANAGEMENT AT RISK CONTRACT WITH C.W. DRIVER RECOMMENDATIONS: 1) Approve a Professional Services Agreement with C.W. Driver, Irvine, California, for the project management during Construction Document preparation at a not to exceed price of $2,305,933 and authorize the Mayor and City Clerk to execute the Agreement. 2) Approve a Construction Manager At Risk Contract with C.W. Driver, Irvine, California, for the Construction Management at Risk at a not to exceed price of $14,617,374 and authorize the Mayor and City Clerk to execute the Contract. 3) Establish a budget of 10% of the Mass Excavation & Shoring construction cost ($673,000) as the City's contingency for unforeseen costs and authorize the Public Works Director and City Manager execute change orders upon concurrence by the City Council Building Committee 4) Approve Budget Amendment No. BA10- appropriating $17,596,307 from the Major Facilities Master Plan Fund to Newport Beach Civic Center Project Account No. 7410- C1002009. DISCUSSION: Project Management On January 13, 2009, City Council selected C.W. Driver as the program manager for the Newport Beach Civic Center Project. Since that selection, C.W. Driver has successfully managed the Conceptual Design, Schematic Design, and Design Development phases of the Civic Center project. The next step in advancing the project is the management of the construction document phase of design which will include plans and specifications for the various bid packages to construct the Civic Center project. Newport Beach Civic Center Project — Approval of Professional Services Agreement for Project Management & Construction Management at Risk Contract with C.W. Driver April 27, 2010 Page 2 The proposed scope of work includes project management and administration services, including design management and coordination services for the project from the production of construction documents through the issuance of a building permit. Work scope in this phase includes: • Coordinate and manage the City's design team in its delivery of the final construction documents and bid packages • Develop budgets and or cost estimates and recommend design modifications as necessary utilizing Value Engineering principles to seek to keep at or below the construction budget established for the Project • Provide periodic design and constructability reviews. • Develop and maintain overall Project schedules and manage the Project to ensure that timeframes for deliverables and processes prior to construction are met • Manage the LEED certification process • Manage appropriate furniture, fixture and equipment bidding /procurement process • Assure incorporation (and respond to) all Building Official and other permitting agency comments as appropriate, and facilitate the permitting process • Secure City issued building permits and all other jurisdictional permits required to construct the Project • Pre - qualify Subcontractors and vendors in advance of the bidding process The proposed fee for program management services for construction document phase is at a cost not to exceed $2,305,933 on a time and materials basis per the attached proposal and hourly rates. Construction Manager at Risk In an effort to expedite the project, the City has elected to start the early phases of the project such as grading and the construction of the parking structure in advance of the final design completion of the parks, City Hall building, and Central Library Expansion. To accomplish this goal it will be necessary to enter into a phased Construction Manager at Risk (CM @R) contract. City staff has negotiated a CM @R contract with C.W. Driver. The contract is broken down into four components. The first component is the basic services or general conditions. These include the fixed costs for the construction field office (including construction trailers, office equipment, portable restrooms, copiers, computers, telephone and equipment) and the necessary personnel to staff the project (including superintendent, inspection and support staff). The work scope included in basic services includes: • Managing the public bidding and award process in full compliance with the California Public Contract Code Newport Beach Civic Center Project — Approval of Professional Services Agreement for Project Management & Construction Management at Risk Contract with C.W. Driver April 27, 2010 Page 3 • Providing full and complete construction administration, coordination and construction observation services during and following construction, including but not limited to the following: ❖ Onsite administration and management Project and construction cost management ❖ Quality assurance, inspection, and quality control ❖ Coordinate with the City's Building Inspectors Dispute resolution Submittal coordination ❖ Management of Requests for Information (RFI) ❖ Change order review and negotiations ❖ Manage construction materials testing, and specialty inspection services ❖ Provide schedule analysis and continuous updates ❖ Manage project close -out, including assuring the A &E team provides complete record (As- Built) drawings ❖ Construction punch -list management and completion •3 Manage substantial and final completion processes, and project acceptance. ❖ Compile program warranties ❖ Deliver operations and maintenance manuals ❖ Coordinate the installation of FF &E and move in activities ❖ Manage final payment and project closeout for all consultants and contractors under direct contract with the City ❖ Coordinate warranty work for a period of up to one year The Basic Services based upon the current project schedule for the entire project are estimated at a not to exceed cost of $7,169,255. Basic Services will be billed monthly on a time and material basis at the agreed rates as shown on Exhibit A of the CM @R contract. The second component of this contract is the actual cost of the construction work. The cost of the work will be set as a Guaranteed Maximum Price (GMP). The GMP will include the actual bid plus a contingency. Under the CM @R project delivery method, C.W. Driver will bid out the various construction trade contracts in accordance with the Public Contract Code and oversight from the City Clerk. The City Council will then approve the expenditure and accept C.W. Driver's GMP proposal for the work. C.W. Driver will then be responsible for delivering all work and construction included in the approved work scope for the maximum cost stated in the GMP. Any costs exceeding the GMP will be borne by C.W. Driver. Any savings under the GMP will be shared by the City and C.W. Driver. The City will receive 75% of any savings and C.W. Driver will receive 25% of any savings as an incentive to reduce overall costs. As stated above, the City has implemented a phased project so that the grading and parking structure construction can begin in advance of the final design completion for the City Hall, Library and park components of the project. The first phase will be the Mass Excavation and Shoring Construction Phase. This phase includes the excavation, grading, and export of approximately 200,000 cubic yards of earth; the construction of a shoring wall to provide for the construction of the parking structure; and the construction Newport Beach Civic Center Project — Approval of Professional Services Agreement for Project Management & Construction Management at Risk Contract with C.W. Driver April 27, 2010 Page 4 of various retaining walls to facilitate grading within the North park portion of the project. On April 13, 2010, the City Clerk oversaw the public opening of the sealed bids for this phase of the work and a summary of those bids is attached for Council review. Upon verifying the bids, C.W. Driver compiled the GMP based upon the lowest responsible bids. The GMP for this work including a contingency of 8% is $6,726,574. A breakdown of the project components are listed in exhibit A. Subsequent GMP phases will include a second phase for the Parking Structure construction and a final phase City Hall, Library Expansion, and Park Improvements. The third component is the Direct Expenses which include the direct costs for bond premiums; field office expenses such as equipment and supplies; general liability insurance; and additional services as requested by the City. Direct expenses will include known costs and allowances for variable items. The Direct Expenses for the Mass Excavation and Shoring Construction phase total $265,412 including general liability insurance cost of $126,453 and an allowance for bonds and expenses at $138,959. The fourth component is the Project fees for managing the construction. These construction management fees represent the markup, overhead, and profit. The Basic Services, Direct Expenses, and GMP represent actual costs without any markups, overhead or profit. The rate for the construction management fee is set at 3.25 % for the entire project. The construction management fee for this phase of work is calculated at $456,133. The total cost of the proposed Construction Manager at Risk contract is $14,617,374 including the Mass Excavation and shoring construction phase GMP. To provide for potential unforeseen costs, staff recommends that a budget of $673,000 (10% of the Mass Excavation) be established. Unforeseen costs may typically include delay and recovery costs should we discover significant archeological artifacts on the project site, changed geologic conditions, and delays due to environmental or weather conditions. Staff also proposes that any adjustments to the CM @R contract compensation be authorized by the Public Works Director and City Manager with concurrence by the City Council Building Committee. Construction Manager at Risk Costs Amount Basic Services $ 7,169,255 Mass Excavation and Shoring Construction GMP (including 8% contingency) 6,726,574 Direct Expenses 265,412 Construction Management Fee 456,133 Subtotal 14,617,374 City's Contingency (10 %) 673,000 Total $15,290,374 Environmental Review: Newport Beach Civic Center Project —Approval of Professional Services Agreement for Project Management & Construction Management at Risk Contract with C.W. Driver April 27, 2010 Page 5 Project Management and CM @R services are not projects as defined in the California Environmental Quality Act (CEQA) Implementing Guidelines. Funding Availability: With the approval of the recommended Budget Amendment in the amount of $17,596,307 sufficient funds are available in the following account: Account Description Newport Beach Civic Center Submitted by: C�r2L� Account Number Amount 7410- C1002009 $ 17,596,307 AttacyFdents: PSA with C.W. Driver, including work scope, schedule and fee exhibits CM @R contract with C.W. Driver— GMP Breakdown Budget Amendment PROFESSIONAL SERVICES AGREEMENT WITH C.W. DRIVER FOR CITY CIVIC CENTER AND PARK THIS AGREEMENT is made and entered into as of this day of 2010, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and C.W. DRIVER a California Corporation whose address is 15615 Alton Parkway, Suite 150, Irvine, California, 92618 ( "Consultant "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to design and construct a new City Civic Center and Park. C. City desires to engage Consultant to provide program management services through the Construction Document Design Phase and Construction Phase of the new City Civic Center and Park Project ( "Project "). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project, shall be Bruce Curry. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 31St day of December, 2012, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and Consultant shall perform the services in accordance with the schedule included in Exhibit A. The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the .start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Two Million, Three Hundred Five Thousand, Five Hundred Eighteen Dollars and no /100 ($2,305,518.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing 2 5. f:1 in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated BRUCE CURRY to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. ADMINISTRATION This Agreement will be administered by the Public Works Department. STEPHEN BADUM shall be the Project Administrator_ and shall have the authority to act for City under this Agreement. The Project Administrator or his authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 3 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or _delay or faulty performance by City, contractors, or governmental agencies. n 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them. Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 5 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for - bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. 7 iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint-venture. 16. SUBCONTRACTING City and Consultant agree that subconsultants may be used to complete the work outlined in the Scope of Services. The subconsultants authorized by City to perform work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. The City is an intended beneficiary of any work M performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the City. Except as specifically authorized herein, the services to be provided under this Agreement shall not be otherwise. assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents'), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 19. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his/her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 20. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. F 21. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 22. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such In persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 26. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Stephen G. Badum Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3311 Fax: 949- 644 -3318 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Bruce Curry C.W. Driver 15615 Alton Parkway, Suite 150 Irvine, CA 92618 Phone: 949- 261 -5100 Fax: 949 - 261 -5167 27. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 11 Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 29. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 30. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 31. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 32. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 12 33. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 34. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: By. vt --4 310 Leonie Mulvihill, �1`0 Acting City Attorney ATTEST: CITY OF NEWPORT BEACH, A Municipal Corporation 0 Keith D. Curry, Mayor C.W. DRIVER: By: By: Leilani I. Brown, Dana Roberts, City Clerk President By: Bessie Kouvara, Chief Financial Officer Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates 13 EXHIBIT A C.W. Driver BUILDERS SINCE 1919 April 19, 2010 Mr. Steve G. Badum City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 -8915 Re: Newport Beach Civic Center and Park Project Program Management Proposal CD Design and Construction Phases Dear Steve: 15615 Alton Parkway Suite 150 Irvine, CA 92618 Fax 949.261.5167 Telephone 949.261.5 100 C. W. Driver is pleased to submit our fee proposal to provide continued Program Management Services through the Construction Document and Construction Phases of the Newport Beach Civic Center and Park Project for your consideration. We are excited about this opportunity to continue to work with the City of Newport Beach and look forward to a very successful project. Our proposed fee of $2,305,933 is a Not -to- Exceed price for these services through the CD Design Phase and Construction Phase of the Project as per CWD's attached schedule of services. A breakdown of these services is as per the following: PROGRA�"IyMANA GEMENT��€ ,e Estimating/ Budgeting / Cost Studies 12% 285,903 Value Engineering Effort (All Phases) 5% 111,143 Bid Phase Support 8% 190,258 Post Bid Evaluation and Services 7% 156,928 Constructability Review / Systems Analysis 5% 1 15,920 BIM Manager / 3D Project Modeling 2% 47,520 Operations Preconstruction Services 7% 154,696 Solicit Proposals & Qualifications for Owner Consultants 5% 122,377 RFP's / Selection / Coordination of Owner Consultants S% 114,870 Management and Coordination of Design Process 9% 209,455 Prequalify Subcontractors and Trade Contractors for Project 13% 290,488 Manage Owner FF &E and Move -in Process 9% 206,960 Manage Project LEED Certification Process 10% 224,000 Project LEAN Consultant 3% 75,000 TOTAL Program Management Services 100% $2,305,933 Los Angeles Irvine On rio San Diego Wage 1 of 3 License No. 102 EXHIBIT A C.W. Driver has not requested any additional reimbursement amounts for this phase and will use the remaining balance from the previous contract phase for any reimbursements associated with these services. Due to the elevated level of detail, the increased amount of documents to review, and increased amount of services to provide during the Construction Document Phase, C.W. Driver's preconstruction services for this phase will increase as compared to prior design phases. Program Management Services for a project typically range between 4% - 6% of a projects total construction budget. However, since CWD has the resources and ability to provide both Program Management AND Construction Services to our clients, we are pleased to provide these services at a reduced rate, therefore passing this management fee savings onto the City of Newport Beach. All of our above estimates are based upon the attached rate sheet. In an attempt to reduce the overall project costs to the City, C.W. Driver has not increased any of our current contract rates approved in our original contract. C.W. Driver will continue to provide the services outlined in our original Agreement with the City of Newport Beach and have provided a breakdown of these services per the following as part of our proposal: Program Management Services: a. Estimating — C.W. Driver will provide a full project estimate for the Owner during the CD design phase prior to the final bid phase of the project. b. Value Engineering — C. W. Driver has allocated resources for an extensive Value Engineering effort during this phase as each submission is received from the project designers. c. Constructobility Review — The level of completeness and accuracy of a set of design documents prior to the bid phase can significantly affect the overall costs of a project. C.W. Driver has anticipated providing full constructability review services for each drawing submission by the design team. d. Systems Analysis — Since the Civic Center structure is intended to achieve Silver LEED rated building, C.W. Driver has included in our services a building system analysis reviewing the proposed design systems for appropriateness of the building type, structure, climate and building location to help increase the Owner's overall value of the project. e. On -going Cost Studies — C.W. Driver has budgeted on -going cost studies for various elements of the project to evaluate options presented by the designers. f. BIM Technology / 31) Imaging g. Bid Phase and Post Bid Services h. Review and Analyze Cost Estimates from Architects Estimating Consultant, i. Coordinate and attend oil team related meetings Page 2of3 CWD LICENSE N.. Joz EXHIBIT A j. Management and Coordination of Owner's Project Consultants - This includes the Owner's Architect and Subconsultants, Soils Engineer, Environmental Consultant, Site Engineering and Survey Group, Commissioning Consultant, etc. until the completion of the Construction Document Phase. k. Provide, maintain and distribute milestone preconstruction schedules 1. Attendance to all required project meetings and project related committee meetings m. Facilitate the Design Process and Information between different entities during both Preconstruction and Construction Phases of the Project n. Prequali fy Subcontractors and Trade Contractors for the Project o. Manage the LEED Certification Process and Submittal Requirements to the USGBC p. Manage Owner's FF &E Process q. Coordinate Owner Move -in with Owner's Moving Consultant r. Coordinate the Newport Beach Civic Center Project with other City Construction Projects and Departments Exclusions: a. Construction Management at Risk Services for the Construction Phase of the project (See separate CWD GMP proposal) b. Project energy management simulations, calculations, c. LEED Credit Calculations d. Reprographics and printing costs ( Reimbursable Items) Please know that we are committed to the total success of this project and look forward to continuing our relationship with the City of Newport Beach and the Design Teams. Sincerely, W-7 Bruce Curry Project Executive C: Darren Mann, CWD Andy Feth, CWD Robert Shafer, CWD William Hahn, CWD /_ t[ f��' TT_ f' i4xi11�771 .9C1��Y��L�:�i[T�.9RT�fa Page 3 of OND _LICENSE Nu. IUZ EXHIBIT B C.W. Drive • C. W. DRIVER BUJILDF.RS SINCE 1919 Exhibit "B" MANAGEMENT RATES & REIMBURSABLES EFFECTIVE January I, 2010- December 31, 2012 ASSISTANT ESTIMATOR 82.00 ASSISTANT PROJECT MANAGER 139.00 ASSISTANT SUPERINTENDENT 109.00 BIM MANAGER 132.00 CARPENTER 102.00 CARPENTER FOREMAN 107.00 CLERICAL 81.00 CONSTRUCTABILITY REVIEWER 139.00 ESTIMATOR/COST ENGINEER 148.00 FIELD SUPERINTENDENT 157.00 GENERAL SUPERINTENDENT 195.00 IT SUPPORT 107.00 LABORER 84.00 LABORER FOREMAN 88.00 PROJECT ENGINEER 83.00 PROJECT EXECUTIVE/ CHIEF ESTIMATOR 195.00 PROJECT (PROGRAM) MANAGER 165.00 SAFETY OFFICER 104.00 SCHEDULER 128.00 SENIOR ESTIMATOR 170.00 SENIOR PROJECT ENGINEER 128.00 SENIOR PROJECT MANAGEMENT 171.00 SENIOR SUPERINTENDENT 163.00 TRUCKING / DELIVERIES 69.00 Above rates apply to standard workweek hours. Management Rates Management Rates Include all wages, workers compensation insurance costs, fringe benefits and payroll taxes, office supplies and expense: mobile phone costs, project staff computers and sofware, main office overhead, and profit Reimburseable Expenses: Reimburseable expenses will be reimbursed at rate of cost plus 10 %. Typical reimbursement costs consist of the following: Travel and subsistence, mileage, Additional Program Management Services not inclusive of this Agreemenr, Outside Consultants, printing costs, postage and mail delivery charges. Permits and Fees, Testing and Inspections, Payment and Performance Bonds CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT CONTRACT NO. j 1 NEWPORT BEACH CIVIC CENTER AND PARK April 27, 2010 City of Newport Beach - 1 - Construction Management at Risk Contract Table of Contents ARTICLE 1 DEFINITIONS; CONTRACT COMPONENTS; PROJECT SCOPE ......................3 ARTICLE 2 CONSTRUCTION MANAGER'S BASIC SERVICES ............. ..............................5 ARTICLE 3 DURATION OF THE CONSTRUCTION MANAGER'S SERVICES ....................14 ARTICLE 4 CHANGES IN THE CONSTRUCTION MANAGER'S BASIC SERVICES AND ADDITIONAL COMPENSATION .......................................... .............................15 ARTICLE 5 CITY RESPONSIBILITIES .................................................... .............................15 ARTICLE 6 COMPENSATION FOR CM SERVICES AND PAYMENT .... .............................18 ARTICLE 7 INSURANCE AND MUTUAL INDEMNITY ............................ .............................23 ARTICLE 8 TERMINATION AND SUSPENSION .................................... .............................30 ARTICLE 9 DISPUTE RESOLUTION ...................................................... .............................31 ARTICLE 10 ADDITIONAL PROVISIONS ................................................. .............................31 Exhibits Exhibit A Guaranteed Maximum Price Documentation Exhibit B Designation of Bid Packages Exhibit C Non - Collusion Affidavit Exhibit D Designation of Sureties Exhibit E Contraction Manager's Industrial Safety Record Exhibit F Faithful Performance Bond Exhibit G Labor and Materials Payment Bond City of Newport Beach -2- Construction Management at Risk Contract CONSTRUCTION MANAGER AT RISK CONTRACT THIS AGREEMENT is entered into this day of , 2010 (the "Effective Date'), by and between the CITY OF NEWPORT BEACH, a Municipal Corporation (the "City ") and C.W. DRIVER, INC., a California Corporation ( "Construction Manager" or "CM "), whose address is 15615 Alton Parkway, Suite 150, Irvine CA 92618, and is made with reference to the following: RECITALS A. The City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City ( "Charter"). B. The City and the CM entered into a contract dated January 13, 2009, as subsequently amended (the "PM Contract "), for program management services related to the City Hall and Park Master Plan Project. C. The City desires to engage the CM to perform construction management services in connection with Newport Beach Civic Center and Park ( "Project"). D. The CM possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. NOW, THEREFORE, the City and the CM, in consideration of their mutual covenants herein, agree as follows: ARTICLE 1 DEFINITIONS; CONTRACT COMPONENTS; PROJECT SCOPE 1.1 Definitions "Agreement" shall have the meaning set forth in Section 1.2. "Allowance Item(s)" shall mean the item(s) identified as such in Exhibit A. "Basic Services" shall have the meaning set forth in Section 2.1. "Charter" shall have the meaning set forth in Recital A. "City" shall mean the City of Newport Beach. "City Council" shall mean the Newport Beach City Council. "Construction Manager" or "CM" shall mean C.W. Driver, Inc. "Contingency" shall mean the line item contingency, in the amount set forth in Exhibit A, for the contingencies that arise during the course of construction of a project of this size and scope. "Contractor" shall have the meaning set forth in Section 2.3.7. City of Newport Beach -3- Construction Management at Risk Contract . "Contract Documents" shall have the meaning set forth in Section 1.2. "Cost of the Project" shall have the meaning set forth in Section 6.1.11. "Designer" means Bohlin, Cywinski, Jackson, a Pennsylvania Corporation. "Direct Expenses" means the items set forth in Section 6.2.2. "Effective Date" shall have the meaning set forth in the opening paragraph of the Agreement. "Fee for Basic Services" shall mean the fee for the Basic Services set forth in Section 6.2.1. "CM Fee of 3.25%" means the fee paid to the CM that is 3.25% of the Cost of the Project, the Basic Services and the Direct Expenses. "GMP Change Order" shall have the meaning set forth in Section 6.1.9. "Guaranteed Maximum Price" or "GMP" shall have the meaning set forth in Section 6.1.1, as may be amended pursuant to Section 6.1.9. "Master Schedule" shall mean the schedule prepared pursuant to Section 2.3.1. "PM Contract" shall have the meaning set forth in Recital B. "Project" shall have the meaning set forth in Recital C and Section 1.3 of the Agreement. The term Project shall include the total construction of which the Work may be a whole or part of the Project. "State" shall mean the State of California. "Uncommitted Funds" shall have the meaning set forth in Section 6.1.7. "Work" means the construction and related services to be performed by the CM as provided for in this Agreement. 1.2 Contract Documents The complete contract for the Project includes the following documents: this Agreement ( "Agreement "), the Guaranteed Maximum Price Documentation, the Designation of Bid Packages, the Non - Collusion Affidavit, the Designation of Sureties, the Construction Manager's Industrial Safety Record, the Performance Bond, the Labor and Materials Payment Bond, Construction Documents as enumerated in Exhibit B, and all modifications and amendments thereto (collectively the "Contract Documents "). The Contract Documents comprise the sole agreement between the parties as to the subject matter therein. Any representations or agreements not specifically contained in the Contract Documents are null and void. Any amendments must be made in writing, and signed by both parties in the manner specified in the Contract Documents. City of Newport Beach - 4 - Construction Management at Risk Contract . 1.3 Project Description The Project name and location is as follows: Newport Beach Civic Center Project 1100 Avocado Avenue, Newport Beach, California 92660 The Project will be delivered pursuant to a phased approach, as more particularly described herein. As contemplated, the Project is generally comprised of the following three phases: (1) mass excavation and grading, (2) 450 stall parking structure, and (3) new Civic Center, dog park, civic lawn, expansion of existing library, City Council chambers, a community room, and a pedestrian bridge over San Miguel Avenue. The scope of Work is described in the exhibits attached hereto, as may be subsequently supplemented and amended. Subject to the approval of the City, the parties anticipate increasing the scope of the Work hereunder by amendments to the Agreement to accommodate each additional phase of the Project. 1.4 Relationship of the Parties The CM shall contract directly with such trade contractors as may be necessary for construction of the Project. All such trade contracts shall be issued consistent with the applicable provisions of this Agreement, the Charter, the City's Municipal Code and applicable State law. ARTICLE 2 CONSTRUCTION MANAGER'S BASIC SERVICES 2.1 Scope of Work The CM shall perform everything required to be performed, as described herein, and shall provide and furnish all the labor, materials, necessary tools, expendable equipment and all utility and transportation services required for the Project ( "Basic Services "). It is not required that the Basic Services be performed in the sequence in which they are described. All of the Work to be performed and materials to be furnished shall be in strict accordance with the provisions of the Contract Documents. The CM is required to perform all activities, at no extra cost to the City, which are reasonably inferable from the Contract Documents as being necessary to produce the intended results. 2.2 Pre - Construction and Program Management Services The CM shall perform certain pre- construction and program management services relating to the Project pursuant to the PM Contract. Services performed under the PM Contract shall not be considered "Basic Services" under the Agreement. 2.3 Procurement Phase 2.3.1 Master Schedule The CM shall prepare a Master Schedule for the Project. The Master Schedule shall specify the proposed start and finish dates for each major Project activity. The CM shall submit the Master City of Newport Beach - -5- Construction Management at Risk Contract . Schedule to the City for acceptance, acceptance of which must be in writing by the City. The Master Schedule shall subsequently be updated pursuant to Section 2.4.16. 2.3.2 Prequalifying Bidders In accordance with applicable law, the CM shall prequalify bidders for each bid package set forth in Exhibit B. This service shall include the following: preparation and transmission of questionnaires; receiving and analyzing completed questionnaires; and preparing summary reports regarding this activity to the City. The CM shall also prepare and transmit to the City a list of prequalified bidders for each bid package. The City shall confirm each prequalified bidder is not presently debarred, suspended, proposed for debarment, declared ineligible or otherwise prohibited from participating on the Project. 2.3.3 Pre -Bid Conference The CM shall conduct a pre -bid conference for each bid package. These conferences shall be forums for the CM and Designer to explain to the bidders the bid package requirements, including information concerning schedule requirements, time and cost control requirements, access requirements, contractor interfaces, the Project administrative requirements and technical information. 2.3.4 Information to Bidders The CM shall conduct a telephonic and written correspondence campaign to attempt to create interest among qualified bidders. The CM shall prepare and post notices and advertisements to solicit bids for the Project in accordance with City policies and applicable law. The CM shall expedite the delivery of bid documents to the bidders. The CM shall obtain documents from the Designer and coordinate posting to an "FTP site' or copying documents onto CD's for distribution to the bidders. The CM shall maintain a record of bidders receiving documents. The CM shall develop and coordinate procedures to provide answers to bidders' questions. 2.3.5 Addenda The CM shall receive from the Designer a copy of all addenda. The CM shall review addenda for clarity, consistency and coordination. By performing the reviews described herein, the CM is not acting in a manner so as to assume responsibility or liability, in whole or in part, for all or any part of the Project design or the content of the design documents. The CM shall also distribute a copy of all addenda to each bidder receiving documents or otherwise make such documents available to all bidders. 2.3.6 Competitive Bidding; Bid Opening Each bid package identified in Exhibit B shall be competitively bid in accordance with applicable law. The CM shall conduct bid openings and shall evaluate the bids to determine the lowest responsive and responsible bidder for each bid package. The CM shall make recommendations to the City concerning the acceptance or rejection of bids. City of Newport Beach - -6- Construction Management at Risk Contract _ 2.3.7 Construction Contracts At the direction of the City, the CM shall prepare, execute, and deliver the Contract Documents between the CM and the selected trade contractor(s) ( "Contractor(s) ") for each bid package. The CM shall enter into a contract in substantially the same form as is attached hereto as Exhibit H as the same may be amended by agreement of the City and the CM, with the successful bidder within sixty (60) days after receipt of approval of award from the City. The CM shall also issue the notices to proceed with respect to these contracts after City instructs CM in writing to proceed with said contracts. 2.3.8 Self- Performance [Not used] 2.3.9 Permits, Insurance and Labor Affidavits The CM shall take responsibility for ensuring that the Contractors have secured the required bonds, insurance, labor affidavits, and waivers. The Designer is responsible to secure the building permit. 2.3.10 Time Management (a) Pre -Bid Construction Schedule. The CM shall inform the bidders of their responsibilities regarding the pre -bid construction schedule specified in the Instructions to Bidders or Contract Documents. (b) Master Schedule. The CM shall provide a copy of the Master Schedule to the bidders. 2.3.11 Cost Management (a) Estimates for Addenda. The CM shall prepare an estimate of costs for all addenda and shall submit the estimates to the City for approval. After approval by the City, the addenda shall be transmitted to bidders and the CM's compensation shall be adjusted as provided in this Agreement. (b) Analyzing Bids. Upon receipt of bids, the CM shall evaluate the bids, including alternate prices and unit prices. 2.3.12 Management Information System (MIS) (a) Schedule Maintenance Reports. The CM shall prepare and distribute schedule maintenance reports during the Procurement Phase. The reports shall compare the actual bid and award dates to scheduled bid and award dates and shall summarize the progress of the Project. (b) Project Cost Reports. The CM shall prepare and distribute the project cost reports during the Procurement Phase. The reports shall specify the actual award prices and construction costs for the Project, compared to the Project and Construction Budget. City of Newport Beach -7- Construction Management at Risk Contract (c) Cash Flow Reports. The CM shall prepare and distribute cash flow reports during the Procurement Phase. The reports shall be based on actual award prices and construction costs for the Project. 2.4 Construction Phase 2.4.1 Pre - Construction Conference In connection with the Designer, the CM shall conduct pre- construction conferences during which the CM shall review the reporting procedures, site operations and other contractual requirements. 2.4.2 Onsite Management and Construction Phase Communication Procedures The CM shall provide and maintain a management team on the Project site to provide contract administration and the CM shall establish and implement coordination and communication procedures among the CM, City, Designer, and Contractors. 2.4.3 Inspection All Work shall be subject to inspection and /or testing in accordance with applicable law. The CM shall coordinate any such inspection and /or testing by the City, including furnishing access to the Project site and the Work. A representative of the CM shall be present for any inspection and /or testing of the Work. 2.4.4 Contract Administration Procedures The CM shall establish and implement procedures for expediting and processing requests for information, shop drawings, material and equipment sample submittals, Contractor schedule adjustments, change orders, substitutes, payment requests and the maintenance of logs. The CM shall maintain dailyjob reports. The CM shall be the party to whom requests for information, submittals, Contractor schedule adjustments, substitutes, change order requests and payment requests shall be submitted. 2.4.5 Project Site Meetings The CM shall conduct weekly meetings at the Project site with each Contractor and the CM shall conduct coordination meetings with all Contractors, the City and Designer. The CM shall record, transcribe and distribute minutes to all attendees, the City and Designer. 2.4.6 Coordination of Other Independent Consultants Technical inspection and testing provided by the City or others shall be coordinated by the CM. The CM shall be provided with a copy of all inspection and testing reports on the day of the inspection or test or when issued. The CM is not responsible for providing, nor does the CM control, the actual performance of technical inspection and testing. The CM is performing a coordination function and is not acting in a manner so as to assume responsibility, in part or in whole, for all or any part of such inspection and testing. 2.4.7 Cleaning Up City of Newport Beach -8- Construction Management at Risk Contract . During the progress of the Work the CM shall direct Contractors to keep the premises free from accumulations of waste materials, rubbish and other debris resulting from the Work. At the completion of the Work, the CM shall cause to have all waste materials, rubbish and debris from and about the premises as well as all tools, appliances, construction equipment, machinery and surplus materials and shall leave the site clean and ready for occupancy. The CM shall restore to original condition all property not designated for alteration by the Contract Documents. CM will not be responsible or liable for any pre- existing hazardous waste or material(s) at the site including removal thereof. 2.4.8 Review of Requests for Changes to the Contract Time and Price The CM shall review the contents of a request for changes to the construction contract time or price submitted by a Contractor, assemble information concerning the request and endeavor to determine the cause of the requests. In instances where the CM's analysis reveals that the request is valid, the CM shall prepare a detailed change order request to the City for approval. In the event that a request affects the Master Schedule, the CM shall update the Master Schedule and shall include the updated schedule in the request submitted to the City. The CM shall prepare the necessary change order documents for signing by the Contractor and City. 2.4.9 Technical Data The CM shall be entitled to rely upon the accuracy of the technical data contained in reports of explorations and tests of subsurface conditions at the site that have been used in preparation of the Contract Documents and have been furnished to the CM. Should the CM encounter (1) concealed or unknown physical conditions that differ materially from those identified in the drawings or specifications or (2) unknown physical conditions of an unusual nature differing materially from those ordinarily encountered and generally recognized as inherent in the work of the character being performed, the CM shall promptly, after becoming aware thereof and before performing any work in connection therewith, notify the City in writing about the condition and may in its notice request an adjustment to the Guaranteed Maximum Price and the completion date. Time extensions and adjustments to the Guaranteed Maximum Price shall be determined pursuant to Section 6.1.12. 2.4.10 Quality Review The CM shall establish and implement a program to monitor the quality of construction. The purpose of the program shall be to guard the City against defects and deficiency in the work of the Contractor. The CM shall transmit to the Contractor a notice of nonconforming work and may reject work when it is the opinion of the CM that the work does not conform to the requirements of the Contract Documents. Except for minor variations as stated herein, the CM is not authorized as part of this service to change, evoke, enlarge, relax, alter, or to release any requirement of the Contract Documents or to approve or accept any portion of the Work not performed in accordance with the Contract Documents. 2.4.11 Uncovering Work If any Work is covered prior to acceptance by the City or prior to inspection in accordance with applicable law, the work shall, if requested by the City, be uncovered for the City's observation and then be recovered at the CM's expense. City of Newport Beach -9- Construction Management at Risk Contract . If the City otherwise considers it necessary or advisable that covered work be observed or inspected or tested by others, the CM, at the City's request, shall uncover, expose or otherwise make available for observation, inspection or testing as the City may require that portion of the work in question, furnishing all necessary labor, material and equipment. If it is found that such work does not conform to the requirements of the Contract Documents, the CM shall bear all direct, indirect and consequential costs of such uncovering, exposure, observation, inspection and testing and of satisfactory reconstruction including, but not limited to, fees and charges of engineers, architects, attorneys and other professionals. If, however, such work is found to conform to the contract requirements, the City shall reimburse the CM for costs directly attributable to such uncovering, exposure, observation, inspection, testing and reconstruction. 2.4.12 Operation and Maintenance Materials The CM shall receive from the Contractors operation and maintenance manuals, warranties and guarantees for materials and equipment installed in the Project, in accordance with the Contract Documents. 2.4.13 Beneficial Occupancy The City retains the right to beneficially occupy all or any portion of the Work prior to final completion. Should the City exercise its right to beneficial occupancy, the CM shall coordinate access to the site to complete Work or to correct nonconforming work to minimize disruption of the City's activities. The City shall use its best efforts to prevent its beneficial occupancy from interfering with the conduct of the CM. If City's beneficial occupancy of an area (other than at the completion of a phase) results in additional costs or schedule impacts to accommodate City's use of a beneficially occupied area, a change order request will be prepared by the CM for approval by the City addressing such impacts. Upon such beneficial occupancy, all risk of damage to the premises beneficially occupied shall shift to the City, who shall secure all appropriate insurance to protect against such damage. The warranty period for the beneficially occupied portion of the Work shall commence upon the date of beneficial occupancy by the City. It is understood by the CM and the City that this Project will be delivered in the following three phases: (1) mass excavation and grading, (2) design build parking structure, and (3) the balance of the Project which includes the new Civic Center, dog park and library expansion. City agrees to release retention for each phase at the conclusion of each phase. 2.4.14 Substantial Completion In consultation with the Designer, the CM shall determine when the Project and the Contractors' Work is substantially complete. In consultation with the Designer, the CM shall, prior to issuing a Certificate of Substantial Completion, prepare a list of Work that does not conform to the Contract Documents. This list shall be attached to the Certificate of Substantial Completion. 2.4.15 Final Completion In consultation with the Designer, the CM shall determine when the Project and the Contractors' Work is finally completed and, following completion of corrections, shall issue a Certificate of Final Completion to the City. Following the receipt of payment from the City, the CM shall make all payments due to Contractors in accordance with the agreement between CM and Contractors. City of Newport Beach -10- Construction Management at Risk Contract 2.4.16 Time Management (a) Master Schedule. The CM shall adjust and update the Master Schedule for review and approval by the City. Upon written approval of revised Master Schedule by the City, the CM shall distribute copies to Designer. All adjustments to the Master Schedule shall be made for the benefit of the Project. (b) CM Review of Time Extension Requests. The CM shall, prior to the issuance of a change order, determine the effect on the Master Schedule of time extensions requested by the Contractor. (c) Recovery Schedules. The CM may require the Contractor to prepare and submit a recovery schedule as specified in the Contract Documents. 2.4.17 Cost Management (a) Schedule of Values (Each Contract). The CM shall, in participation with the Contractors, determine a Schedule of Values for each of the construction contracts. (b) Change Order Control. The CM shall establish and implement a change order control system. All proposed City- initiated change orders shall first be described in detail in writing by the City to the Designer and then shall be forwarded in a request for proposal to the CM, accompanied by technical drawings and specifications prepared by the Designer. In response to the request for a proposal, the CM shall submit to the City for evaluation detailed information concerning the costs and time adjustments, if any, necessary to perform the proposed change order work. The City shall review the CM's proposal, shall discuss the proposed change order with the CM and endeavor to determine the CM's basis for the cost and time to perform the Work and, as applicable, the effect, if any, on the Guaranteed Maximum Price. The CM shall prepare the change order documents for signature by the City. Upon execution of the change order documents between the CM and City, the CM shall prepare change order documents for signature by the affected Contractor. The CM shall verify that the Work, and any adjustment of time required by approved change orders has been incorporated into the Master Schedule. (c) Cost Records. In instances where a lump sum or unit price is not determined prior to performing Work, the CM shall request from the Contractor records of the cost of payroll, materials and equipment and the amount of payments to subcontractors incurred by the Contractor in performing the Work. (d) Payments. The CM shall review the payment applications submitted by each Contractor and determine whether the amount requested reflects the progress of the Contractor's Work consistent with the contract. The CM shall make appropriate adjustments to each payment application and shall prepare and forward to the City a progress payment report. The report shall state the total contract price, payments to date, current payment requested, retainage and actual amounts owed for the current period. Included in this report shall be a certificate of payment that shall be signed by the CM and delivered to the City. The CM shall make payments that are due to all contractors under the terms of the agreement between the CM and contractors, suppliers, and material men within ten (10) days following the receipt of payment for the work from the City. City of Newport Beach - Construction Management at Risk Contract (e) Labor. As applicable, the CM, its agents and employees shall be bound by and comply with applicable provisions of the Labor Code and federal, state and local laws related to labor, including regulations regarding the payment of prevailing wages. The CM shall strictly adhere to the provisions of the Labor Code regarding minimum wages; the 8 -hour day and 40 -hour week; overtime; Saturday, Sunday and holiday work; nondiscrimination because of race, religion, color, national origin, handicap, ancestry, sex or age. 2.4.18 Management Information System (MIS) . (a) Schedule Maintenance Reports. The CM shall prepare and distribute monthly schedule maintenance reports during the Construction Phase. The reports shall compare the actual construction dates to scheduled construction dates of each separate construction contract and to the Master Schedule for the Project. (b) Proiect Cost Reports. The CM shall prepare and distribute monthly Project cost reports during the Construction Phase. The reports shall specify actual Project and construction costs compared to the Project and Construction Budget. (c) Project and Construction Budget Revisions. The CM shall make recommendations to the City concerning construction changes that may result in revisions to the Project and Construction Budget or Guaranteed Maximum Price. (d) Cash Flow Reports. The CM shall prepare and distribute monthly cash flow reports during the Construction Phase. The reports shall specify actual cash flow as compared to projected cash flow. (e) Progress Payment Reports (Each Contract). The CM shall prepare and distribute the progress payment reports on a monthly basis. The reports shall state the total construction contract price, payment to date, current payment requested, retainage and actual amounts owed this period. A portion of this report shall be a certificate of payment that shall be signed by the CM and delivered to the City for use by the City in making payments to the CM. (f) Change Order Reports. The CM shall prepare and distribute change order reports on a monthly basis during the Construction Phase. The report shall list all City- approved change orders by number, a brief description of the change order work, the cost established in the change order and percent of completion of the change order work. The report shall also include similar information for potential change orders of which the CM may be aware. (g) Contractor's Safety Program. The CM shall review the safety programs of each Contractor and confirm that each Contractor has established safety programs as required by the Contract Documents. As applicable, the CM shall ensure each Contractor is implementing and administering a confined space entry program (CSEP) in accordance with Sections 5156, 5157 and 5158, Title 8, California Code of Regulations. 2.5 Post Construction Phase 2.5.1 Record Documents City of Newport Beach -12- Construction Management at Risk Contract The CM shall coordinate and expedite submittals of information from the Contractors for preparation of record drawings and specifications, and shall coordinate and expedite the transmittal of such record documents to the City. CM shall forward all paper files to Designer for incorporation into CAD files if so desired by City. All Building Information Modeling (BIM) electronic files will be transmitted to City at the conclusion of the project. 2.5.2 Organize and Index Operations and Maintenance Materials Prior to final completion of the Project the CM shall compile manufacturers' operations and maintenance manuals, warranties and guarantees and bind such documents in an organized manner. This information shall then be provided to the City. 2.5.3 Occupancy Permit The CM shall assist the City in obtaining an occupancy permit by accompanying governmental officials during inspections of the Project, preparing and submitting documentation to governmental agencies and coordinating final testing and other activities. 2.5.4 Cost Management (a) Change Orders. The CM shall continue to provide services related to change orders as specified in Section 2.4.17(b). 2.5.5 Management Information System (MIS) (a) Closeout Reports. At the conclusion of the Project, the CM shall prepare final project accounting and closeout reports. (b) MIS Reports for Move -in and Occupancv. The CM shall prepare and distribute reports associated with the Occupancy Plan. 2.6 Additional Services 2.6.1 At the request of the City, the CM shall perform the following Additional Services and shall be compensated for same as provided in Article 6 of this Agreement. The CM shall perform Additional Services only after the City and CM have executed a written amendment to this Agreement providing for such services and such amendment has been approved by the City Council. Additional Services may include: (a) Services related to investigation, appraisal, or evaluation of existing conditions, facilities, or equipment or determination of the accuracy of existing drawings or other information furnished by the City; (b) Services related to procurement, storage, maintenance and installation of City - furnished equipment, materials, supplies and furnishings; (c) Services related to determination of space needs; (d) Preparation of space programs; (e) Services related to building site investigations and analysis; City of Newport Beach - - 13 - Construction Management at Risk Contract (f) Services for tenant or rental spaces; (g) Preparation of a Project financial feasibility study; (h) Preparation of financial, accounting or MIS reports not provided under Basic Services; (i) Performance of technical inspection or testing; Q) Services related to recruiting and training of maintenance personnel; (k) Performance of warranty inspections during the warranty period of the Project; (1) Consultation regarding replacement of work damaged by fire or other cause during construction and furnishing services in connection with the replacement of such work; (m) Preparation for and serving as a witness in connection with any public or private hearing or mediation or legal proceeding; (n) Services related to move -in including preparing and soliciting responses to requests for proposals, preparing and coordinating the execution of contracts, conducting pre - moving conferences, administering the contract for moving activities in conjunction with the move -in for the Project and providing on -site personnel to oversee the relocation of furniture and equipment by the movers while actual move -in is in progress. ARTICLE 3 DURATION OF THE CONSTRUCTION MANAGER'S SERVICES 3.1 The duration of the CM's Basic Services under this Agreement shall be one thousand sixty -seven (1067) consecutive calendar days from the commencement date. 3.2 The commencement date for the CM's Basic Services shall be March 1, 2010. 3.3 The CM's Basic Services shall be performed for the periods of time indicated in this Agreement (see exhibits). If portions of design and construction occur simultaneously, some of the phase durations may overlap. 3.4 Liquidated Damages, Consequential Damages Delays inconvenience the public and interfere with commerce. Delays also cost taxpayers and the City undue sums of money, adding time needed for administration, engineering, inspection, and supervision. Accordingly, the CM agrees to pay $2,500 per day for each day the CM fails to achieve substantial completion within the time required by the Agreement, and to authorize the City to deduct these liquidated damages from any money due or coming to the CM. The liquidated damages are City's exclusive remedy against the CM for delays in reaching substantial completion. The CM and City waive claims against each other for consequential damages arising out of or relating to this Agreement. This mutual waiver includes: (1) damages incurred by the City for rental expenses, for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons; and (2) damages incurred by the CM for principal office expenses including the compensation of City of Newport Beach - 14 - Construction Management at Risk Contract personnel stationed there, for losses of financing, business and reputation, and for loss of profit except anticipated profit arising directly from the Work. ARTICLE 4 CHANGES IN THE CONSTRUCTION MANAGER'S BASIC SERVICES AND ADDITIONAL COMPENSATION 4.1 City Changes 4.1.1 The City, without invalidating this Agreement, may make changes in the CM's Basic Services specified in Article 2 of this Agreement. The CM shall notify the City within fifteen (15) business days of changes which increase or decrease the CM's compensation, the duration of the CM's Basic Services, or both. 4.1.2 Additional Compensation and Extended Duration The CM shall be entitled to receive additional compensation and additional time when the scope of Basic Services is increased or extended through no fault of the CM. If the scope of Basic Services is increased or the duration of the CM's Basic Services is extended or the duration of the Basic Services to be performed within a phase duration specified in Article 3 is extended, the CM shall be entitled to receive additional compensation and the duration of the Agreement shall be extended. A written request for additional compensation shall be given by the CM to the City within 30 days of the occurrence of the event giving rise to such request. The amount of additional compensation to be paid and the amount of extension of the duration of this Agreement shall be determined on the basis of the CM's labor rates and fee percentage established herein. 4.1.3 Changes in the CM's Basic Services Subject to Section 5.14, changes in the CM's Basic Services and entitlement to additional compensation shall be made by a written amendment to this Agreement executed by the City and the CM and approved as to form by the Office of the City Attorney for the City. The amendment shall be executed by the City and CM and approved as to form by the Office of the City Attorney for the City prior to the CM performing the services required by the amendment. The CM shall proceed to perform the services required by the amendment only after receiving written notice from the City directing the CM to proceed. 4.1.4 Payment of Additional Compensation The CM shall submit invoices for additional compensation with its invoice for Basic Services and payment shall be made pursuant to the provisions of Article 6 of this Agreement. ARTICLE 5 CITY RESPONSIBILITIES 5.1 The City shall provide to the CM complete information regarding the City's requirements for the Project. 5.2 The City shall examine information submitted by the CM and shall render decisions thereto promptly. 5.3 The City shall furnish design, legal, accounting and insurance counseling services as may be necessary for the Project. City of Newport Beach -15 - Construction Management at Risk Contract 5.4 If the City observes or otherwise becomes aware of any fault or defect in the Project or nonconformity with the Contract Documents, the City shall give prompt written notice thereof to the CM. 5.5 The City shall furnish required information and approvals and perform its responsibilities and activities in a timely manner to facilitate orderly progress of the Work in cooperation with the CM, consistent with this Agreement, and in accordance with the planning and scheduling requirements and budgetary restraints of the Project as determined by the CM. 5.6 The City has retained a Designer whose services, duties and responsibilities are described in a written agreement between the City and Designer. The services, duties, and responsibilities of the Designer set out in the agreement between the City and Designer shall be compatible and consistent with this Agreement and the Contract Documents. The City shall, in its agreement with the Designer, require that the Designer perform its services in cooperation with the CM, consistent with this Agreement and in accordance with the planning, scheduling and budgetary requirements of the Project as determined by the City and documented by the CM. The terms and conditions of the agreement between the City and the Designer shall not be changed or waived without written consent of the CM, whose consent shall not be unreasonably withheld. 5.7 The City shall approve the Project and Construction Budget and any subsequent revisions in writing. 5.8 The City shall afford the CM proper and safe access to the site and a reasonable opportunity for the introduction and storage of materials and equipment. 5.9 If the City contracts separately with any other parties, the City shall cause all such agreements to be compatible and consistent with this Agreement. Each of the agreements shall include waiver of subrogation as required herein. 5.10 The City shall in a timely manner secure, submit and pay for necessary approvals, easements, assessments, utility company fees, permits and charges required for the construction, use or occupancy of permanent structures, or for permanent changes in existing facilities. 5.11 Prior to commencement of each phase of the Project, the City shall furnish evidence satisfactory to the CM that sufficient funds are available and committed for that phase. Unless such reasonable evidence is furnished, the CM is not required to commence its services and may, if such evidence is not presented within a reasonable time, suspend the services specified in this Agreement upon fifteen (15) days written notice to the City and in such event, the CM shall be compensated in the manner provided in Section 8.2. 5.12 The City, its representatives and consultants, including the Designer and individuals performing any inspection and /or testing under Section 2.4.3, shall communicate with the Contractors only through the CM. 5.13 Except as to independent inspectors performing within the scope of their responsibilities, the City shall send to the CM and shall require the Designer to send the CM copies of all notices and communications sent to or received by the City or Designer relating to the Project. City of Newport Beach -16- Construction Management at Risk Contract _ 5.14 The City shall designate, in writing, an officer, employee or other authorized representatives to act in the City's behalf with respect to the Project. This representative shall have the authority to approve changes and execute documents on behalf of the City that are consistent with existing City policies and are in substantial conformance with the terms of this Agreement. This representative shall be available during working hours and as often as may be required to render decisions and furnish information in a timely manner. The City's representative is: the City Manager, or his designee. 5.15 The City shall make payments to the CM on the basis of the Contractor's payment applications that are certified by the CM and on the basis of the CM's invoices for its services performed. 5.16 The City shall provide CM with copies of all environmental documents and testing reports prepared under the California Environmental Quality Act. City of Newport Beach -17- - Construction Management at Risk Contract ARTICLE 6 COMPENSATION FOR CM SERVICES AND PAYMENT 6.1 Guaranteed Maximum Price 6.1.1 As of the Effective Date, the City and the CM agree that the Guaranteed Maximum Price is fourteen million, six hundred seventeen thousand and three hundred seventy -four dollars ($14,617,374), which is inclusive of the Cost of the Project as respects the bid package(s) identified in Exhibit B, the Fee for Basic Services, the Direct Expenses and the CM Fee of 3.25°/x. CM's Basic Services labor rates are understood and agreed to be as detailed in Exhibit A. 6.1.2 Documentation of the Guaranteed Maximum Price, attached hereto as Exhibit A and made a part hereof by reference, includes drawings, sketches, specifications, calculations and /or other data used to identify the basis of the Guaranteed Maximum Price . The Guaranteed Maximum Price includes an agreed upon contingency amount for use by the CM and is limited to the work described in the documentation attached as Exhibit A. The Guaranteed Maximum Price shall only be subject to modification pursuant to Section 6.1.9 or as otherwise defined in this Agreement. 6.1.3 The Guaranteed Maximum Price includes those taxes applicable to the Project that are legally enacted at the time the Guaranteed Maximum Price is established. Any increase or decrease in taxes that affect the Guaranteed Maximum Price and that are enacted after the Guaranteed Maximum Price is submitted shall be incorporated into that price by change order. 6.1.4 The Guaranteed Maximum Price relates only to the total Cost of the Work and not to any single line item or other specific element of the Work or cost breakdown. The Guaranteed Maximum Price shall include a Contingency. The parties acknowledge and agree that the Contingency may be used at the sole discretion of the CM to cover any costs necessary to complete the Work, including for Basic Services; however, said Contingency is not to cover any changes in the Work, including the cost of unforeseen conditions, design errors, omissions, deficiencies or defects, scope changes, or any combination thereof, all of which shall be paid from the City's separate contingency, or for costs resulting from the gross negligence or willful misconduct of the CM. The CM may access and bill against the Contingency whenever the CM's actual costs for any other line items exceeds the costs reflected in the estimate for those line items, and the City shall timely pay or reimburse CM pursuant to Section 6.2.4 for such contingency billings provided that such payment or reimbursement does not cause the Guaranteed Maximum Price to be exceeded. 6.1.5 In the same manner, whenever CM's estimate for any given line item in its overall estimate, including without limitation the line items for Basic Services, exceeds the cost to complete the Work under that line item, the CM may transfer the excess to the other line item or items and thereafter bill and be paid or reimbursed for Work performed under those line item(s), provided that such payment or reimbursement does not cause the Guaranteed Maximum Price to be exceeded. Concurrently with its applications for payment, the CM will provide the City with all documentation the City reasonably requires to identify each transfer included in the application and the effect of the transfer, if any, on the Cost of the Project. 6.1.6 Included in the Guaranteed Maximum Price (GMP) are the Allowance Items. To the extent that the actual cost of an Allowance Item shall exceed the amount of the allowance, the GMP shall be increased, dollar for dollar, in accordance with such excess over the City of Newport Beach - Construction Management at Risk Contract allowance. To the extent that the actual cost for any Allowance Item is less than the allowance, the GMP shall likewise be decreased accordingly together with the applicable proportion of the CM Fee of 3.25 %. In determining the CM Fee of 3.25 %, the CM has taken into consideration the Work to be performed for Allowance Items (e.g., unloading, handling and storage at the Project, labor, installation costs, overhead, profit, etc.), and no additional charges in excess of the CM Fee of 3.25% shall be payable to the CM in relation to any Allowance Item. 6.1.7 If, upon final completion of the Project, any uncommitted funds remain with respect to the Guaranteed Maximum Price, any Contingency, the Cost of the Project, the Fee for Basic Services, and /or Direct Expenses ( "Uncommitted Funds "), the City shall be entitled to retain seventy -five percent (75 %) of such Uncommitted Funds and the CM shall be entitled to payment from the City for twenty -five percent (25 %) of such Uncommitted Funds. 6.1.8 The City may change the scope of the Project or a part thereof and the Guaranteed Maximum Price shall then be adjusted as provided in Section 6.1.12. 6.1.9 GMP Change Orders Pursuant to Section 2.3, the CM shall request and receive bids for each bid package identified in Exhibit B and shall advise the City with respect to award of each contract to the lowest responsive and responsible bidder. As such contracts are procured and awarded, the Guaranteed Maximum Price shall be adjusted as follows: (a) Not later than thirty (30) days after issuance of a Notice of Award for each bid package, unless such time is mutually agreed to be extended, the CM shall propose a Guaranteed Maximum Price adjustment ( "GMP Change Order") to reflect the increased scope of Work. The GMP Change Order shall include (1) documentation used to identify the basis of the proposed Guaranteed Maximum Price adjustment, including drawings, sketches, specifications, calculations or other relevant data and (2) the change order documents for signature by the CM and City. (b) The City Council shall approve and the City shall accept such GMP Change Order within thirty (30) days of the date of the receipt unless such time is mutually agreed to be extended. If the City does not accept the GMP Change Order within the time period herein provided, the GMP Change Order shall be deemed to have been rejected by the City, in which case the CM and the City shall promptly meet and confer in good faith as to whether the particular bid package should be re -bid or whether some agreed upon alternative course of action should be followed. (c) Upon the City's execution of the change order documents, the supporting documentation included in the GMP Change Order shall be attached hereto as Exhibit A and shall be made a part of the Contract Documents. (d) In the event the City does not accept the CM's proposed GMP Change Order or elects not to go forward with the Project, the CM shall be reimbursed in accordance with the requirements for termination as defined in Sections 8.1.1 and 8.1.3 of this Agreement. (e) It is anticipated that the following phases will be added via change order to this agreement: (1) Design Build 450 stall Parking Garage, and (2) Civic Center and Park Project City of Newport Beach - Construction Management at Risk Contract . 6.1.10 In the event that the Cost of the Project exceeds the Guaranteed Maximum Price and any adjustments therein as may be due pursuant to the terms hereof, the CM shall continue to perform at no additional cost to the City until the Project, defined by this Agreement and all Exhibits hereto is complete. The CM shall be responsible for paying all costs, in accordance with the terms of this Agreement that may be necessary to complete the Project, even if such amounts are in aggregate in excess of the Guaranteed Maximum Price. 6.1.11 Cost of the Project The term "Cost of the Project' shall mean all amounts paid by the City to the CM for payment to all separate Contractors, suppliers and equipment lessors for all work, material, and equipment supplied to the Project including general conditions items. (a) The Cost of the Project shall not include the following: (i) The Fee for Basic Services; (ii) The CM Fee of 3.25% (iii) All professional fees paid by the City to the Designer or other consultants retained directly by the City; (iv) All costs paid directly by the City to contractors or suppliers retained directly by the City and outside the scope of the Guaranteed Maximum Price; (v) All Additional Services costs as defined herein; or (vi) All other costs not within the control of the CM or identified as being not within the Guaranteed Maximum Price. (b) The Cost of the Project may be further defined in the documentation set forth in Exhibit A. If the provisions of this Section 6.1.11 and the documentation in Exhibit A differ, then the CM shall identify and explain the difference, but the documentation provided in Exhibit A shall be the basis for determining the scope of the Guaranteed Maximum Price. 6.1.12 Other Adjustments to the Guaranteed Maximum Price The CM understands, confirms and agrees that its responsibility hereunder is to construct the Project in accordance with the drawings and specifications. The City and CM shall use the documentation specified in Exhibit A in determining whether the scope of the Project or a part thereof has been changed and in determining entitlement to an adjustment to the Guaranteed Maximum Price. A determination regarding all requests for adjustment to the Guaranteed Maximum Price shall be made in writing within thirty (30) days from the date of a written request for an adjustment, unless such time is mutually agreed to be extended . City of Newport Beach - 20 - Construction Management at Risk Contrail (a) The amount of adjustment to increase or decrease the Guaranteed Maximum Price resulting from a change in the Project shall be determined in one or more of the following ways: (i) By mutual acceptance of a lump sum, properly itemized and supported by cost data; or (ii) By unit prices defined and listed in Exhibit A; or (iii) If neither of the methods set forth in Sections 6.1.12(a)(i) or 6.1.12(a)(ii) is agreed upon by the City, the CM, provided it receives a written order signed by the City, shall promptly proceed with the work involved. The cost of such work shall then be determined on the basis of the cost records for the changed work. Choice of this method shall not restrict the City or the CM from resolving the matter pursuant to a judicial proceeding as to the justification or right of the CM to an increase in the Guaranteed Maximum Price due to such work. In such case, the CM shall keep and present in such form as may be agreeable to the City an itemized accounting together with appropriate supporting data of the actual cost of the Project. (b) If the unit prices are stated and if the quantities originally contemplated by the CM are so changed in a proposed change order or as a result of several change orders that application of the agreed unit prices to the quantities or work proposed cause substantial inequity to the City or the CM, the applicable unit prices and Guaranteed Maximum Price shall be adjusted. (c) The Designer shall have the authority to order minor changes in the Project consistent with the intent of the drawings and specifications and not involving an adjustment in the Guaranteed Maximum Price or change of the construction completion date. Such changes may be affected by written order only and shall be signed by the City and the CM prior to the work being performed. 6.2 Cost Plus Fixed Fee The City shall compensate the CM on the basis of the Cost of the Project plus the CM Fee of 3.25 %, and the Direct Expenses, as follows: 6.2.1 Compensation for Basic Services The CM shall be compensated for performing the Basic Services described in Article 2 as follows: (a) A Fee for Basic Services of seven million, one hundred sixty -nine thousand and two hundred fifty -five dollars ($7,169,255); (b) The Cost of the Project plus the CM Fee of 3.25 %; and (c) Subject to prior written consent by the City, the cost of independent engineers, architects and other consultants employed by the CM and performing services related to the Project shall be subject to escalation on an annual basis using CPI. City of Newport Beach - 21 - Construction Management at Risk Contract 6.2.2 Direct Expenses (a) In addition to the compensation for Basic and Additional Services stated herein, the CM shall be reimbursed for direct expenses'for performing its Basic and Additional Services, subject to the Guaranteed Maximum Price. Direct expenses are those actual expenditures made by the CM, its principals, employees, independent engineers, architects, and other consultants in the interest of the Project, including: (i) Long distance telephone calls, telegrams and fees paid for securing the approval of authorities having jurisdiction over the Project; (ii) Handling, shipping, mailing and reproduction of materials and documents; (iii) Subject to the reasonable approval by the City, transportation and lodging expenses when traveling in connection with the Project; (iv) Computer equipment expenses, including rental of electronic data processing or word processing equipment, electronic data processing services, computer software and internal IT support fees; (v) Premiums for insurance beyond the limits normally carried by the CM that are required by the terms of this Agreement. The cost of liability insurance (0.91 %) and CM's labor rates are understood and agreed to be the amounts set forth in Exhibit A attached herein; (vi) Gross receipts taxes, sales or use taxes, or services taxes required to be paid as a result of this Agreement; (vii) Field office expenses including the cost of office rentals, field telephones, utilities, field office furniture, equipment and supplies; (viii) Premium time, overtime and shift work directed to be performed by the City; and (xii) Other items as may be itemized in CM's Basic Services per Exhibit A. (b) Bond premiums. 6.2.3 Construction Manager's Accounting Records Records for the CM's personnel expenses, independent engineer's, architect's and other consultant's fees and direct expenses pertaining to the Project shall be maintained on the basis of generally accepted accounting practices and shall be available for inspection by the City or the City's representative at mutually convenient times for a period of three years after completion of the CM's Basic Services. . 6.2.4 Payments. Payments to the CM shall be made monthly, not later than thirty (30) days after presentation of the CM's invoice to the City as follows: City of Newport Beach - 22 - Construction Management at Risk Contract (a) Payment of the Fee for Basic Services as indicated in Section 6.2.1(a) shall be equal to the percentage complete of the Project, provided that CM shall be entitled to payment to cover mobilization costs at the beginning of the Project, subject to approval by the City. (b) Payment of the Cost of the Project and the CM Fee of 3.25% shall be based on mutually agreed percentage complete for each line item in the Schedule of Values contained in the Application for Payment; (c) All Applications for Payment by CM shall contain and reflect a deduction for retainage equal to ten percent (10 %) of the Cost of the Work. No retention shall be withheld for CM's Basic Services, Direct Expenses, or CM fee. As the Project has multiple phases, upon the satisfactory completion of each phase (i.e., Mass Excavation, Parking Structure, and Civic Center and Park), which includes fully completing the work, delivery of all plans, manuals guarantees and other similar documents, and their work has been accepted by City, CM and Designer, City shall within 60 days release all retention monies withheld from Contractors for the phase. (d) Reimbursement for direct expenses shall be in amounts equal to expenditures made during the billing period and during previous billing periods not yet invoiced; (e) Pursuant to Section 20104.5 of the Public Contract Code, payments due to the CM that are unpaid for more than thirty (30) days from the date of the CM's invoice shall bear interest at the annual rate set forth in subdivision (a) of Section 685.010 of the Code of Civil Procedure. 6.2.5 Compensation for Additional Services The CM shall be compensated and payments shall be made for performing Additional Services in the same amount and manner as provided in Article, 6 for Basic Services. There shall be an increase in the CM fee set out in Section 6.2.1(b) in the amount of 5% of the Cost of the Work plus the direct cost of any additional Basic Services required to perform the Additional Service. Pursuant to Section 2.6, the CM shall not be compensated for Additional Services without written authorization by the City. 6.3 Adjustments to the CM's Compensation The CM shall promptly notify the City when changes to the scope of the Project or a part thereof or when delays caused in whole or in part by the City or Designer increase or extend the scope or duration of the CM's Basic Services. The CM shall be entitled to receive additional compensation and an increase in the duration of this Agreement pursuant to the provision of Article 4 and consistent with the provisions of Article 6 of this Agreement. Pursuant to Section 7102 of the Public Contract Code, the CM shall be compensated for damages incurred due to delays for which the City is responsible. ARTICLE 7 INSURANCE AND MUTUAL INDEMNITY 7.1 Insurance Without limiting the CM's indemnification of the City, and prior to commencement of work, the CM shall obtain, provide and maintain as a cost of the work during the term of the Agreement, a City of Newport Beach - 23 - Construction Management at Risk Contract policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to the City. It is understood and agreed that the cost of such liability insurance cost shall be deemed to be 0.91 % of the total of the Cost of the Work and Basic Services. 7.1.1 Certificates of Insurance The CM shall provide original certificates of insurance with original endorsements to the City as evidence of the insurance coverage required herein. Insurance certificates must be approved by the City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with the City at all times during the term of this Agreement. The CM shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the work hereunder by the CM, his agents, representatives, employees or subcontractors. The cost of such insurance shall be included in the CM's bid. 7.1.2 Signature A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. 7.1.3 Acceptable Insurers All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 7.1.4 Coverage Requirements. (a) Workers' Compensation Coveraae. The CM shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, the CM shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by the City at least thirty (30) calendar days (10 calendar days written notice of non - payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against the City, its officers, agents, employees and volunteers for losses arising from work performed by the CM for the City. (b) General Liability Coverage. The CM shall maintain commercial general liability insurance in an amount not less than $2,000,000 per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be City of Newport Beach -24- Construction Management at Risk Contract performed under the Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. (c) Automobile Liability Coverage. The CM shall maintain automobile insurance covering bodily injury and property damage for all activities of the CM arising out of or in connection with work to be performed under the Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than $2,000,000 combined single limit for each occurrence. 7.1.5 Deductibles and Self- Insured Retentions Any deductibles or self- insured retentions must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self- insured retentions as respects the City, its officers, officials, employees and volunteers; or the CM shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. 7.1.6 Other Insurance Provisions The policies are to contain, or be endorsed to contain, the following provisions: (a) General Liability and Automobile Liability Coverages (i) The City, its elected or appointed officers, agents, officials, employees, and volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of the CM, including the insured's general supervision of the CM; products and completed operations of the CM; premises owned, occupied or used by the CM; or automobiles owned, leased, hired or borrowed by the CM. The coverage shall contain no special limitations on the scope of protection afforded to the City, its elected or appointed officers, officials, employees, agents or volunteers. (ii) The CM's insurance coverage shall be primary insurance and /or primary source of recovery as respects the City, its elected or appointed officers, agents, officials, employees and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the CM's operations or services provided to the City. Any insurance or self- insurance maintained by the City, its officers, officials, employees and volunteers shall be excess of the CM's insurance and shall not contribute with it. (iii) Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its officers, agents, officials, employees and volunteers. (iv) The CM's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. (v) The insurance afforded by the policy for contractual liability shall include liability assumed by contractor under the indemnification /hold harmless provision contained in this Agreement. City of Newport Beach - 25 - Construction Management at Risk Contract (vi) The insurer shall agree to waive all rights of subrogation against the City, its elected or appointed officers, agents, officials, employees and volunteers for losses arising from work performed by the CM for the City. (b) All Coverages (i) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled, rescinded by either party, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the City. (ii) Timely Notice of Claims. The CM shall give the City prompt and timely notice of any claim made or suit instituted arising out of or resulting from the CM's performance under this agreement. (iii) All of the executed documents referenced in this Agreement must be returned within ten (10) working days after the date on the "Notification of Award," so that the City may review and approve all insurance and bonds documentation. 7.1.7 Force Majeure Pursuant to Public Contract Code Section 7105, the CM shall not be responsible for the repairing and restoring damage to Work, when damage is determined to have been proximately caused by force majeure events, including but not limited to acts of the public enemy, acts or failures to act of other agencies, in either their sovereign or contractual capacity, voter initiatives, legal actions, changes in law, fires, floods, seismic activity, labor disputes, freight embargoes, unusually severe weather and actions or failures to act by the City or the City's separate contractors. In every case, the failure to perform must be beyond the control and without the fault or negligence of the CM. . 7.2 Notices and Recovery The City and CM each shall provide the other with copies of all policies thus obtained for the Project. Each party shall provide the other with sixty (60) days notice of cancellation, non - renewal or endorsement reducing or restricting coverage. 7.3 Indemnity 7.3.1 To the fullest extent permitted by law, CM shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties') from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any work performed or services provided under this Agreement including, without limitation, defects in workmanship or materials or CM's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or City of Newport Beach - 26 - Construction Management at Risk Contract . omissions of CM, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require CM to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties or from any cliam relating to the City's failure to pay any undisputed payments. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the CM.. 7.3.2 The City shall cause the Designer to indemnify and hold harmless the City, its employees, agents and representatives to the same extent and in the same manner that CM has provided indemnification for the City under Section 7.3.1. 7.3.3 The City hereby indemnifies and holds harmless the CM and its employees, agents and representatives from and against any and all claims, demands, suits and damages for bodily injury and property damage for which the City is liable that arise out of or result from breach of this Agreement or negligent acts or omissions of the City, its employees, agents, representatives, independent contractors, suppliers, and the Designer. 7.3.4 The CM shall cause the Contractor to indemnify and hold harmless the City, CM and Designer from and against any and all claims, demands, suits, damages, including damages resulting from personal injury or property damage, costs, and expenses and fees that are asserted against the City, CM and the Designer and that arise out of or result from negligent acts or omissions or the breach of the contract by the Contractor, its employees, agents and representatives in performing the Work. 7.3.5 Nothing in this article, nor any other portion of the Contract Documents shall be construed as authorizing any award of attorneys' fees in any action to enforce the terms of this Agreement, except to the extent provided for in Section 7.3.1, above. 7.3.6 The rights and obligations set forth in this Article shall survive the termination of this Agreement. 7.4 Builder's Risk Insurance The City shall purchase and maintain at all times during the performance of any Work by the Contractor hereunder, at City's expense, a builders risk insurance policy upon the Work and materials, tools and equipment used in connection with the Work with all coverage normally contained therein, including, but not limited to, fire, natural causes (other than earthquake and flood), and extended coverage, theft, vandalism, malicious mischief, temporary storage, and transit to and from the job site of materials acquired for incorporation into the Work, in an amount equal to one hundred percent (100 %) of the full replacement value thereof, and shall cover reasonable compensation for Designer's and Contractor's services and expenses required as a result of such insured loss. The builder's risk policy shall name the Contractor and its subcontractors and sub - subcontractors and material suppliers as additional insureds to the extent of their interest in property covered under the policy. The City shall be responsible for the payment of any deductibles under such builders risk policy. Such City of Newport Beach - 27 - Construction Management at Risk Contract property insurance shall be maintained until substantial completion or certificate of occupancy, whichever is earlier. At its option, the City may include coverage for earthquake and/or flood, with such coverage limits (which may be lower than the other builders risk limits) and exclusions. 7.4.1 Perils and Property Insured Coverage shall apply to the Work, any falsework, temporary buildings (but not trailers), and property or materials to be included in the Work, inclusive of while at temporary locations away from the jobsite or in transit on land in the United States or its navigable waters, but not including tools, machinery, equipment, trailers and sheds belonging to the Contractor, Subcontractors or Sub - subcontractors. Coverage for debris removal including demolition occasioned by enforcement of any applicable legal requirements shall be included. 7.4.2 Deductibles- [Not Used] 7.4.3 Copies of Required Insurances Certificates of Insurance and copies of policies, as evidence of the insurance required by this agreement, shall be furnished by the City to Contractor before any work hereunder is commenced by or on behalf of the City. The Certificates of Insurance shall provide that there will be no cancellation without thirty (30) days prior written notice (except ten (10) days for non- payment of premium) by registered mail to Contractor and Designer. 7.4.4 List of Additional Insureds The CM, Contractors and lower tier subcontractors of any tier shall be named as additional insureds. 7.4.5 If the City does not intend to purchase such property insurance required by this Agreement and with all of the coverages in the amount described above, the City shall so inform the CM in writing prior to commencement of the Work. The CM may then affect such insurance, and by appropriate Change Order the cost thereof shall be charged to the City. If the CM is damaged by the failure or neglect of the City to purchase or maintain the Builder's Risk insurance required by this Agreement, then the City shall bear all reasonable costs properly attributable thereto. 7.4.6 Partial or beneficial occupancy or use in accordance with Section 2.4.13 shall not commence until the insurance company or companies providing property insurance have consented to such partial occupancy or use by endorsement or otherwise. The City shall take reasonable steps to obtain consent of the insurance company or companies and shall, without mutual written consent, take no action with respect to partial occupancy or use that would cause cancellation, lapse or reduction of insurance. 7.4.7 Boiler and Machinery Insurance City of Newport Beach - 28 - Construction Management at Risk Contract The City shall purchase and maintain boiler and machinery insurance required by the Contract Documents or by law, which shall specifically cover such insured objects during installation and until final acceptance by the City; this insurance shall include interests of the City, CM, Contractors and Subcontractors in the Work. The City shall be the named insured and CM, Contractors and Subcontractors shall be additional insureds. 7.4.8 Loss of Use Insurance- The City, at the City's option, may purchase and maintain such insurance as will insure the City against loss of use of the City's property due to fire or other hazards, however caused. The City waives all rights of action against the CM for loss of use of the City's property, including consequential losses due to fire or other hazards however caused. 7.4.9 If the CM requests in writing that insurance for risks other than those described herein or other special causes of loss be included in the property insurance policy, the City shall, if possible and if the premiums are reasonable, include such insurance, and the cost thereof shall be charged as agreed by City and CM. 7.4.10 If during the Project construction period the City insures properties, real or personal or both, at or adjacent to the site by property insurance under policies separate from those insuring the Project, or if after final payment property insurance is to be provided on the completed Project through a policy or policies other than those insuring the Project during the construction period, the City waives its rights of subrogation against the CM and Contractors for damages caused by fire or other causes of loss covered by this separate property insurance. All separate policies shall provide this waiver of subrogation by endorsement or otherwise. 7.4.11 Waivers of Subrogation The City and CM waive all rights against (1) each other and any of their Contractors, agents and employees, each of the other, and (2) the Designer, Designer's consultants, separate contractors for damages caused by fire or other causes of loss to the extent covered by property insurance obtained pursuant to this Section 7.4 or other property insurance applicable to the Work, except such rights as they have to proceeds of such insurance held by the City as fiduciary. The City or the CM, as appropriate, shall require of the Designer, Designer's consultants, separate contractors, if any, and the subcontractors, sub - subcontractors, agents and employees of any of them, by appropriate agreements, written where legally required for validity, similar waivers each in favor of other parties enumerated herein. The policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged. 7.4.12 A loss insured under City's property insurance shall be adjusted by the City as fiduciary and made payable to the City as fiduciary for the insureds, as their interests may appear, subject to requirements of any applicable mortgagee clause. The CM shall pay Contractors their just shares of insurance proceeds received by the CM, and by appropriate agreements, written where legally required for validity, shall _require Contractors to make payments to their Subcontractors in similar manner. City of Newport Beach - 29 - Construction Management at Risk Contract . 7.4.13 The CM as fiduciary shall have power to adjust and settle a loss with insurers unless one of the parties in interest shall object in writing within five days after occurrence of loss to the City's exercise of this power; if such objection is made, the dispute shall be resolved as provided in Article 9. ARTICLE 8 TERMINATION AND SUSPENSION 8.1 Termination 8.1.1 This Agreement may be terminated by the City for convenience after seven (7) days written notice to the CM. 8.1.2 This Agreement may be terminated by either party hereto upon seven (7) days written notice should the other party fail substantially to perform in accordance with the terms hereof through no fault of the terminating party or if the Project in whole or substantial part is stopped for a period of sixty (60) days under an order of any court or other public authority having jurisdiction or as a result of an act of government. 8.1.3 In the event of termination pursuant to Section 8.1.1, the CM shall be paid its compensation for services performed to the date of termination, services of professional consultants then due, direct expenses and all termination expenses. Termination expenses are defined as those expenses arising prior, during and subsequent to termination that are directly attributable to the termination, plus an amount equaling twenty (20) percent of the unearned CM Fee of 3.25 %. 8.1.4 In the event of termination pursuant to Section 8.1.2, the CM shall be paid its compensation for services performed to the date of termination, services of professional consultants then due, direct expenses and all termination expenses. No amount computed as provided in Sections 8.1.3 shall be paid in addition, if the termination is due to the CM's failure to substantially perform in accordance with the terms of this Agreement. 8.2 Suspension 8.2.1 The City may order, in writing, the CM to suspend all or any part of the CM's services for the Project for the convenience of the City or for work stoppage beyond the control of the City or the CM. If the performance of all or any part of the services for the Project is suspended, an adjustment in the CM's compensation shall be made for the increase, if any, in the cost of the CM's performance of this Agreement caused by such suspension and this Agreement shall be modified in writing accordingly. 8.2.2 In the event the CM's services on the Project are suspended, the City shall reimburse the CM for all of the costs of its construction site staff, assigned Project home office staff and other costs provided for by this Agreement for the first thirty (30) days of such suspension. The CM shall reduce the size of such staff for the remainder of the suspension period as directed by the City and during such period, the City shall reimburse the CM for all costs of reduced staff. Upon cessation of the suspension, the CM shall restore the construction site and home office staff to its former size. 8.2.3 Persons assigned to another project during such suspension or period and not available to return to this Project upon cessation of the suspension shall be replaced. City of Newport Beach - 30 - Construction Management at Risk Contract _ 8.2.4 If the Project is suspended by the City for more than three (3) months, the CM shall be paid compensation for services performed prior to receipt of written notice from the City of such suspension, together with direct expenses then due and all expenses and costs directly resulting from such suspension. If the Project is resumed after being suspended for more than six (6) month, the CM shall have the option of requiring that its compensation, including rates and fees, be renegotiated. Subject to the provisions of this Agreement relating to termination, a delay or suspension of the Project does not void this Agreement. ARTICLE 9 DISPUTE RESOLUTION All claims, disputes or controversies between the City and the CM arising out of, or relating to the Agreement, the Project, the Work, the Contract Documents or the breach thereof will, if the parties cannot resolve their differences, be resolved by mediation in accordance with the provisions set forth below in Section 9.1. 9.1 Mediation In the event the parties are unable to resolve a dispute, and as a prerequisite to filing a claim under the provisions of Government Code Section 900 et seq., either party may submit a notice of mediation to the other party. All matters submitted to mediation shall be administered in accordance with the Construction Industry Mediation Rules of the American Arbitration Association unless the parties mutually agree otherwise. The mediator shall be experienced in the subject matter of the dispute, as agreed upon by the City and the CM. If the City and the CM are unable to agree upon a mediator, then one shall be selected by the American Arbitration Association. The expenses and fees of the mediation and the administrative fees, if any, will be divided among the parties equally. Each party will pay its own counsel fees, witness fees, and other expenses incurred for its own benefit. The intent of this provision is that in the event the parties cannot resolve an issue, they participate in good faith mediation in an effort to efficiently resolve disputes. 9.2 Claims If the parties are unable to resolve the dispute by mediation, either party may file a claim in the Orange County Superior Court, provided that such action is taken within six months from the date of the conclusion of the mediation. By entering into this Agreement, the CM warrants and agrees that the substantive laws of the State shall govern all Agreement disputes. ARTICLE 10 ADDITIONAL PROVISIONS 10.1 Confidentiality Subject to the California Public Records Act (Government Code Sections 6250 — 6270) and any lawful court order, the CM will keep all information designated and marked by the City as "Confidential" and concerning the Project confidential, except for communications incident to completion of the Project between the CM, Designer, and Contractor, and their independent professional engineers, architects and other consultants and subcontractors, and except for publicity approved by the City and communications in connection with filings with governmental bodies having jurisdiction over the design or construction of the Project. City of Newport Beach - - 31 - Construction Management at Risk Contract 10.2 Limitation and Assignment The City and the CM each bind itself, its successors, assigns, insurers, and legal representatives to the terms of this Agreement. Neither the City nor the CM shall assign or transfer its rights or interest in this Agreement without the written consent of the other, which consent shall be given in each party's sole and absolute discretion. However, nothing contained in this Section 10.2 can prevent the CM from employing contractors or such consultants, associates or subcontractors as the CM may deem appropriate to assist in performance of the services and of the Work hereunder. The City and the CM agree to comply with Section 7103.5 of the Public Contract Code, which states "In entering into a public works contract or a subcontract to supply goods, services, or materials pursuant to a public works contract, the contractor or subcontractor offers and agrees to assign to the awarding body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials pursuant to the public works contract or the subcontract. This assignment shall be made and become effective at the time the awarding body tenders final payment to the contractor, without further acknowledgment by the parties. 10.3 Governing Law Unless otherwise provided, this Agreement shall be governed by the law of the State of California. 10.4 Venue The venue of any judicial proceeding under this Agreement shall be Orange County, California 10.5 Extent of Agreement This Agreement represents the entire and integrated agreement between the City and the CM and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified or amended only by written instrument signed by both the City and the CM. Nothing contained in this Agreement is intended to benefit any third party. The Contractors and Designer are not intended third party beneficiaries of this Agreement. 10.6 Severability If any provision of this Agreement is held as a matter of law to be unenforceable, the remainder of this Agreement shall be enforceable without such provision. 10.7 Meaning of Terms City of Newport Beach - 32 - Construction Management. at Risk Contract . References made in the singular shall include the plural and the masculine shall include the feminine or neuter. i[t]fMM —Ur- Whenever any provision of the Contract Documents requires the giving of written notice, it shall be deemed to have been validly given if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended or if delivered or sent by registered or certified mail, postage prepaid, addressed as follows: To the Citv: City of Newport Beach Public Works Department P.O Box 1768 3300 Newport Boulevard Newport Beach, CA 92663 Attention: Stephen G. Badum (949) 644- 0000 With a copy to: City of Newport Beach City Clerk P.O. Box 1768 3300 Newport Boulevard Newport Beach, CA 92663 Attention: Leilani Brown To the CM: C.W. Driver 468 North Rosemead Boulevard Pasadena, CA 91107 Attention: Dana Roberts (626) 351 -8800 [Signatures to follow on next page.] City of Newport Beach - 33 - Construction Management at Risk Contract IN WITNESS WHEREOF, this Agreement has been executed as of the last date set forth next to the signatures of the parties, below. ATTEST Leilani Brown CITY CLERK Approved as N form: B.: ltd Leonie Mulvihill 6 Acting City Attorney City of Newport Beach Construction Management at Risk Contract CITY OF NEWPORT BEACH A Municipal Corporation 0 Mayor C.W. DRIVER INC. A California Corporation 0 Dana Roberts President Insert Name Financial Officer 34- G.W. Driver BUILDERS SINCE 1919 April 21, 2010 Mr. Steve G. Badum City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 -8915 EXHIBIT A Re: Newport Beach Civic Center and Park Project Guaranteed Maximum Price (GMP) Mass Excavation and Shoring Construction Phase I C.W. Driver Project Basic Services Dear Steve: 15615 Alton Parkway Suite 150 Irvine, CA 92618 Fax 949.261.5167 Telephone 949.261.5 100 C. W. Driver is pleased to submit our Guaranteed Maximum Price Proposal (GMP) for: a) The Mass Excavation and Shoring Phase of the Newport Beach Civic Center and Park Project b) C.W. Driver's Basic Services for the Newport Beach Civic Center and Park Project for on- site project staff and support facilities for all project construction phases as per current scope of work identified in the 100% DD set of design documents prepared by the architect, Bohlin, Cywinski, Jackson (BCJ) dated February 18, 2010 and per C.W. Driver's attached construction schedule and For added clarification and detail of our proposed services, please see attached documents. C.W. Driver is very excited about the opportunity to continue to work with the City of Newport Beach and look forward to a very successful project. The Total Phase I Proposal for these services is as follows: IsomDesch tp Ion Total I C.W. Driver Basic Services for Civic Center & Park Project GMP 7,169,255 II Mass Excavation and Shoring Construction Phase GMP* 6,726,574 Subtotal 13,895, III General Liability Insurance (0.91 %) 126,453 IV Direct Expenses Allowance for Project Bond (1.0%) 138,959 V Construction Management Fee (3.25%) 456,133 TOTAL PHASE I $14,617 * Includes Contractor Construction Contingency Los Angeles Irvine Ontario San Diego Page I of 3 a.0.® License No. 102 LJ s-�y Mass Excavation Construction Phase The GMP for this work is based upon the scope of work identified in the Mass Excavation Bid Set of Drawings by Bohlin, Cywinski, Jackson (BCJ) dated March 17, 2010 including their Addendum # I for this package issued on March 31, 2010. (Please see attached drawing list.) C.W. Driver's Project Basic Services C.W. Driver's Basic Services Proposal of $7,169,255 is a Guaranteed Maximum Price (GMP) for Basic Services labor and support services through the completion of the construction of the Newport Beach Civic Center Project as per CWD's attached construction schedule and for the scope of work identified in BCJ's 100% Design Development Set of Project Documents and Specifications dated February 18, 2010. Please see the attached C.W. Driver attachments for a detailed breakdown of the services included in this proposal. Basic Services Labor = $5,648,095 Basic Support Services = $1.521.160 Subtotal CWD Basic Services* _ $7,169,255 *Excludes Project Liability Insurance and Project Fee. Please see breakdown on the front of this proposal for these costs. Exclusions: a. Program Management and Preconstruction Services. (See separate CWD Proposal) b. Monthly Site Utility Consumption Including Site Offices (installation excepted) c. Project Night Watchman d. Materials and Soils Testing and Inspection e. Shuttle Services for Trades and Temporary Parking expenses f. Owner Scope Changes g. Unknown Subsurface Conditions h. Building Permit Fees i. Utility Company and Connection Fees j. Subsequent Construction Phases and Scope of Work not Addressed by the Mass Excavation Design Package k. Three Upper Most Concrete Retaining Walls at the North Park (only lower wall included) L Temporary Access Roads for Emergency Use Vehicles Please know that we are committed to the total success of this project and look forward to continuing our relationship with the City of Newport Beach and the Design Teams. Sincerely, Bruce Curry f; Project Executive CNND Page 2of3 LICENSE N.. 102 C: Darren Mann, CWD Andy Feth, CWD Robert Shafer, CWD William Hahn, CWD Attachments: b Mass Excavation Drawing List b Mass Excavation Phase I Trade Package Summary b Basic Services GCM List b Basic Services Labor Matrix b Construction Schedule b Project Rate Sheet Page 3of3 LICENSE Nn. 102 EXHIBIT "A" BULLETIN #1 CONTRACT DOCUMENT LISTING NEWPORT BEACH CITY HALL AND PARK PROJECT APRIL 7", 2010 VERSION 1.1 THE LISTING BELOW COMPRISES ALL OF THE DOCUMENTS INCLUDED UNDER THIS CONTRACT. UNLESS OTHERWISE NOTED, ALL DOCUMENTS ARE AS PREPARED BY BOHLIN, CYWINSKI, JACKSON. DRAWINGS ITEM # SHEET PREPARED BY ORIGINAL LATEST ISSUE DATE REV DATE 001 CSI Bohlin, Cywinski, Jackson 3/31/2010 002 MX01.01 ARUP 3/17/2010 003 MX01.02 ARUP 3/17/2010 004 MX01.03 ARUP 3/17/2010 005 04 of 38 Hall & Foreman, Inc. 9/23/2009 006 05 of 38 Hall & Foreman, Inc. 8/27/2009 007 06 of 38 Hall & Foreman, Inc. 8/27/2009 008 07 of 38 Hall & Foreman, Inc. 8/27/2009 009 08 of 38 Hall & Foreman, Inc. 8/27/2009 010 MX03.01 ARUP 3/17/2010 011 MX03.02 ARUP 3/17/2010 012 MX03.03 ARUP 3/17/2010 012 MX03.03 ARUP 3/31/2010 013 MX03.04 ARUP 3/17/2010 014 MX04.01 ARUP 3/17/2010 015 MX04.02 ARUP 4/6/2010 016 MX04.03 ARUP 4/6/2010 017 MX04.04 ARUP 3/17/2010 018 MX04.05 ARUP 3/17/2010 019 MX04.06 ARUP 3117/2010 020 MX04.07 ARUP 3117/2010 021 MX04.08 ARUP 3/17/2010 022 MX04.09 ARUP 3/1712010 023 MX04.10 ARUP 3/17/2010 024 MX05.01 ARUP 3/17/2010 025 MX06.01 ARUP 3/31/2010 026 MX06.02 ARUP 3/31/2010 027 MX06.03 ARUP 3/31/2010 028 MX06.04 ARUP 3/17/2010 029 MX06.05 ARUP 3/17/2010 030 MX06.06 ARUP 3/17/2010 EXHIBIT "A" BULLETIN #1 CONTRACT DOCUMENT LISTING PAGE 2 OF 2 ITEM # SHEET PREPARED BY ORIGINAL LATEST ISSUE DATE REV DATE 031 MX06.07 ARUP 3/17/2010 032 MX06.08 ARUP 3/31/2010 033 MX06.09 ARUP 3/31/2010 034 MX06.10 ARUP 3/31/2010 035 MX06.11 ARUP 3/17/2010 036 MX06.12 ARUP 3/17/2010 037 MX06.13 ARU P 3/17/2010 038 MX06.14 ARUP 3/17/2010 039 MX06.15 ARUP 3/17/2010 040 MX06.16 ARUP 3/17/2010 041 MX06.17 ARUP 3/17/2010 042 MX07.01 ARUP 3/17/2010 043 MX07.02 ARUP 3117/2010 044 MX07.03 ARU P 3/17/2010 045 MX07.04 ARUP 3/17/2010 046 MX07.05 ARUP 3/17/2010 047 MX07.06 ARUP 3/17/2010 048 MX07.07 ARUP 3/17/2010 049 MX07.08 ARUP 3/1712010 050 MX08.01 ARUP 3/17/2010 051 MX08.02 ARUP 3/17/2010 052 MX08.03 ARUP 3/17/2010 053 MX08.04 ARUP 3/17/2010 054 MX08.05 ARUP 3/17/2010 055 MX08.06 ARUP 3/1712010 SPECIFICATION MANUAL Project Specification Manual prepared by Bohlin, Cywinski, Jackson dated March 17, 2010 entitled Mass Excavations Bid Set divisions I through 3 inclusive. SOILS REPORT Soils Report prepared by Leigton Consulting, Inc dated April 2, 2010 entitled Geotechnical Engineering Exploration Report for the Newport Beach Civic Center and Park, City of Newport Beach, California. BULLETIN Bulletin Prepared by Bohlin, Cywinski, Jackson as follows: Bulletin Number #I dated March 31, 2010 CNV Driver R.VII.pFRIS SI \C11, 1914 Mass Excavation C. W. DRIVER Budget Summary 04/19110 EXHIBIT - A Printed: 20- Apr -10 Newport Beach Civic Center and Park Date Prepared: 20- Apr -10 Newport Beach, CA Estimate No.: #87101 Square Feet: 122,295 Months On -Site: 25.0 Includes Addenda: NIA Estimator: RDS, Rn.RF TF VR * Spec No Seq Description Notes Mass Ex Percent Cost per Sqft 017300 6 Surveying 99,100 01 5000 7 Site Specific Requirements 66,380 01 5000 8 Temp. Barricades & Chain link Fencing 84,866 01 5000 10 Temp Facilities and Controls 41,330 11 Construction & Final Clean -Up 26,004 0241 13 13 Selective Structure Demolition incl in earthwork 01 74 19 14 Construction waste management and disposal 2,849 31 0000 15 Site Preparation/ Earthwork 3,366,992 16 Temp Dewatering 12,387 31 50 10 17 Earth Shores & Underpin 1,71 1,799 31 2500 19 Erosion Control 34,166 32 12 16 20 Asphaltic Paving 15,207 03 33 13 23 Site Walls 140,265 3341 00 30 Drainage 234,947 06 61 00 32 Wrought Iron / RFP Fencing 23,596 03 37 13 37 Gunite & Shotcrete incl in earth shoring 0711 16 50 Waterproofing 363,795 01 3233 109 Time Lapse Photography 4,627 END CSI LIS- 116 End Csi Listing —End O(S.m , -Do Not SUBTOTAL 6,228,309 XTR- 01000 -P 117 Construction Contingency 8.00% 498,265 Total Estimate 6,726,574 PAGE 1 City of Newport Beach Civic Center and Park Project C.W. Driver Project General Conditions GMP - Support Services Exhibit - A Project Duration (Months) 35 Description Quantity Unit Unit Labor Unit Matl /EQ Total Labor Matl /EQ Total Cost s�,.0 mnth U o0 600.00 0 21,000 21,000 Hard Hats 100.0 each 0.00 30.00 0 3,000 3,000 Safety Supplies & Signs 35.0 mnth 0.00 350M 0 12,250 12,250 Fire Extinguishers 600 each 000 12500 0 7,500 7,500 Fire Hoses 30.0 each 0.00 350.00 0 10,500 10,500 Construction Photos Construction Photos 35.0 mnth 0.00 50.00 0 1,750 1,750 Photo Reproduction 35.0 mnth 0.00 50.00 0 1,750 1,750 Preconstruction Survey 1.0 Isum 0.00 500.00 0 500 500 Mobilize /Demobilize Mob /Demob Trailers Single 4.0 Isum 0.00 950.00 0 3,800 3,800 Mob /Demob Trailers six Wide 2.0 Isum 0.00 17,000.00 0 34,000 34,000 Deliver Storage Bin (3) 3.0 each 0.00 100.00 0 300 300 Phone Set-Up & Int System 1.0 Isum 000 440000 0 4,400 4,400 Set Temporary Poles 3.0 each 0.00 150.00 0 450 450 Set Subfeed Panels 3.0 each 0.00 125.00 0 375 375 Temporary Utilities Utility Usage (By Owner) Rent Temp. Generator 7.0 mnth 0.00 1 500 00 0 10,500 10,500 Power Lines /Cords 1.0 Isum 0.00 5,000.00 0 5,000 5,000 Phone Company Charge 35.0 mnth 0.00 1 100 00 0 38,500 38,500 Temporary Sanitation 35.0 mnth 0.00 2,600.00 0 91,000 91,000 Hand Wash Stations 35.0 mnth 0.00 1,50000 0 52,500 52,500 Rent Temporary Heat 12.0 mnth 0.00 500.00 0 6,000 6,000 Barrier & Enclosure Lunch Area 1.0 Isum 0.00 6,15000 0 6,150 6,150 Security (Excluded) 0 Watchman (Off- hours) 0.0 mnhr 0.00 0.00 0 0 0 Access /Parking Maintain Access Road 35.0 mnth 0.00 500.00 0 17,500 17,500 Temp. Stairs /Ladders 150.0 treads 0.00 8.00 0 1,200 1,200 Stair Filler /Protect 150.0 treads 0.00 4.00 0 600 600 Shuttle Service (Excluded) Shuttle Service (excluded) 0.0 weeks 0.00 0.00 0 0 0 1 of 3 City of Newport Beach Civic Center and Park Project C.W. Driver Project General Conditions GMP - Support Services Exhibit - A Project Duration (Months) 35 Description Quantity Unit Unit Labor Unit Matl /EQ Total Labor Matl /EQ Total Cost P9....- 1 1_ o Progressive Clean -Up Y 35.0 mnth 0.00 750.00 0 26,250 26,250 Trash Removal /Dump 60.0 loads 000 60000 0 36,000 36,000 Temp. Dewatering 1.0 Isum 0.00 10,000.00 0 10,000 10,000 Project Signs Project Signs 10.0 each 0.00 1 500 00 0 15,000 15 000 Field Enclosures job Office Single 12x60 (Mass Ex) 7.0 mnth 0.00 650.00 0 4,550 4,550 12x60 Package "A" 7.0 mnth 0.00 875.00 0 6,125 6,125 job Office 6 Wide 72x60 27.0 mnth 0.00 3,400.00 0 91,800 91,800 72x60' Package "D" 27.0 mnth 0.00 1 650 00 0 44,550 44,550 Insp / Arch Office w/ Conf Rm Double 24x60 27.0 mnth 0.00 1,120.00 0 30,240 30,240 24x60 Package "A' 27.0 mnth 0.00 975.00 0 26,325 26,325 Storage Bin 35.0 mnth 0.00 200.00 0 7,000 7,000 Trailer Cleaning Service 27.0 mnth 0.00 1 050 00 0 28,350 28,350 Trailer Security System & Service 27.0 mnth 0.00 135.00 0 3,645 3,645 Mat/Eauo Protection Mat/Equp Protection 1.0 Isum 0.00 20,000.00 0 20,000 20,000 Project Supplies & Expenses Office Supplies 35.0 mnth 0.00 1 300 00 0 45,500 45,500 Blueprints & Reproduction 0.0 Isum 0.00 250,000.00 0 0 0 Water & Coffee Service 35.0 mnth 0.00 175.00 0 6,125 6,125 Messenger Service 45.0 each 0.00 75.00 0 3,375 3,375 Postage /UPS 35.0 mnth 0.00 800.00 0 28,000 28,000 Cell Phones Charge 35.0 mnth 0.00 1,450.00 0 50,750 50,750 Copy Machines 35.0 mnth 0.00 1 100 00 0 38,500 38,500 Fax Machines 3.0 each 0.00 350.00 0 1,050 1,050 Computers and Printers 10.0 each 0.00 2,500.00 0 25,000 25,000 DSL Service 35.0 mnth 0.00 150.00 0 5,250 5,250 Scheduling Plotter 0.0 each 0.00 6,000.00 0 0 0 Scheduling Supplies 35.0 mnth 000 20000 0 7,000 7,000 Meeting Expense 35.0 mnth 0.00 600.00 0 21,000 21,000 Goodwill Expense Isum 0,00 15,000.00 0 0 0 Computer Software (Prolog Maintenance) 0.0 mnth 0.00 40.00 0 0 0 2 of 3 City of Newport Beach Civic Center and Park Project C.W. Driver Project General Conditions GIMP - Support Services Exhibit - A Project Duration (Months) 35 Description Quantity Unit Unit Labor Unit Matl /EQ Total Labor Matl /EQ Total Cost ^r- jam mntn U uU 500.00 0 17,500 17,500 Final Inspect/Close Guarantee Work 0.0 Isum 0.00 18,900.00 0 0 0 Repair Damage Work 0.0 Isum 0.00 12,850.00 0 0 0 Maintenance Library 0.0 Isum 0.00 4,000.00 0 0 0 Final Clean -Up Final Clean -Up Shell 0 sgft 0.08 0.02 0 0 0 Final Clean -Up Finish 0 sgft 0.25 0,05 0 0 0 Clean Windows /Glass 0.0 mnhr 48.54 1.25 0 0 0 Rental Equip. /Tools Small Tools 1.0 Isum 0.00 30,000.00 0 30,000 30,000 Equipment Repair 1.0 Isum 0.00 15,000.00 0 15,000 I S 000 Mules (3) 35.0 mnth 0.00 1 650 00 0 57,750 57,750 Gasoline And Oil 35.0 mnth 0.00 1,200.00 0 42,000 42,000 Main Office Support Legal Services 1.0 Isum S10.00 51,000.00 0 51,000 51,000 Data Processing /IT Support 35.0 mnth 3,800.00 1 800 00 133,000 63,000 196,000 Tests & Inspections (Excluded) Subtotal Project Material Costs $ 1.321.160 Blueprints & Reproduction (Allowance) TOTAL Project Material Costs 3of3 $ 200,000 $ 1,521,160 9 or New P t Beach City Hall & Park Daae:OB- Janl3 Pµe left .Date 03A1ayl9 Exhibit E - Master Project Schedule Addendum #1 NCE 191 Exhibit "A" April 21, 2010 PROFESSIONAL SERVICES RATE SCHEDULE 1 7/2/11 to 711/12 ACCOUNTING - Regular Time 59.80 63.39 67.19 71.22 ACCOUNTING - Overtime Time 86.71 91.91 97.43 103.27 ASSISTANT ESTIMATOR 70.20 74.41 78.88 83.61 ASSISTANT PROJECT MANAGER 83.20 88.19 93.48 99.09 ASSISTANT SUPERINTENDENT 78.00 82.68 87.64 92.90 BIM MANAGER 97.50 103.35 109.55 116.12 CARPENTER - Regular Time 61.23 64.90 68.80 72.93 CARPENTER - Overtime 84.18 89.23 94.58 100.26 CARPENTER - Premium Time 108.66 115.18 122.09 129.42 CARPENTER FOREMAN - Regular Time 64.78 68.67 72.79 77.15 CARPENTER FOREMAN - Overtime 89.87 95.26 100.98 107.04 CARPENTER FOREMAN - Premium Time 114.52 121.39 128.67 136.40 CHIEF ESTIMATOR 193.70 205.32 217.64 230.70 CLERICAL - Regular Time 62.40 66.14 70.11 74.32 CLERICAL - OvertimeTime 81.12 85.99 91.15 96.62 CONSTRUCTABLITY REVIEWER 104.00 110.24 116.85 123.87 ESTIMATOR / COST ENGINEER 101.40 107.48 113.93 120.77 FIELD SUPERINTENDENT 110.50 11713 124.16 131.61 GENERAL SUPERINTENDENT 189.80 201.19 213.26 226.05 IT SUPPORT 80.60 85.44 90.56 96.00 LABORER - Regular Time 48.93 51.87 54.98 58.28 LABORER - Overtime 64.98 68.88 73.01 77.39 LABORER - Premium Time 81.26 86.14 91.30 96.78 LABORER FOREMAN - Regular Time 51.77 54.88 58.17 61.66 - LABORER FOREMAN - Overtime 68.94 73.08 77.46 82.11 LABORER FOREMAN - Premium Time 73.87 78.30 83.00 87.98 PROJECT COORDINATOR - Regular Time 63.70 67.52 71.57 75.87 PROJECT COORDINATOR - Overtime 92.37 97.91 103.78 110.01 PROJECT ENGINEER 75.40 79.92 84.72 89.80 - PROJECT EXECUTIVE 201.50 213.59 226.41 239.99 " PROJECT / PROGRAM MANAGER 131.30 139.18 147.53 156.38 QUALITY CONTROL MANAGER 110.50 117.13 124.16 131.61 - - - SAFETY MANAGER 114.40 121.26 128.54 136.25 _ SCHEDULER 124.80 132.29 140.23 148.64 SENIOR ESTIMATOR 127.40 135.04 143.15 151.74 - SENIOR PROJECT ENGINEER 78.00 82.68 87.64 92.90 SENIOR PROJECT / PROGRAM MANAGER 139.10 147AS 156.29 - 165.67 SENIOR SUPERINTENDENT 135.20 143.31 151.91 161.03 TRUCKING / DELIVERIES 66.30 70.28 74.49 78.96 Management Rates Management Rates Include all wages, workers compensation insurance costs, fringe benefts and payroll rues, F Above rates apply to standard workweek hours. Additional overtime costs will apply to hourly employees. - The above rates will be charged including an increase of V1 per year in subsequent calendar years beyond the calendar years shown. - Reimburseable expenses will be reimbursed atcate ofccst plus 3255L Typical reimbursement costs consist of the following Traveland subsistence, mileage, Additional Program Management Services not inclusive of this Agreement. Outside Consuhants,printing costs, - - postage and mail delivery charges, Permits and Fees. Testing and Inspections, Payment and Performance Bonds - EXHIBIT B Designation of Bid Packages The Project shall consist of the bid packages set forth in this Exhibit E. Each package shall be procured in accordance with Section 2.3. The CM, by signing this designation, certifies that bid packages set forth below constitute the Project as described in Section 1.3. Use additional sheets if needed. Bid Package No. Description of Bid Package % of Project Construction Manager Authorized Signature/Title City of Newport Beach -36- - DRAFT Construction Management at Risk Contract Exhibit B EXHIBIT C Non - Collusion Affidavit State of California ) ) ss. County of ) , being first duly sworn, deposes and says that he or she is of the parry making the foregoing bid; that the bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation; that the bid is genuine and not collusive or sham; that party making the foregoing bid; that the bid is not made in the interest of, or on behalf of, any undisclosed person, partnership, company, association, organization, or corporation; that the bid is genuine and not collusive or sham; that the bidder has not directly or indirectly induced or solicited any other bidder to put in a false or sham bid, and has not directly or indirectly colluded, conspired, connived, or agreed with any bidder or anyone else to put in a sham bid, or that anyone shall refrain from bidding; that the bidder has not in any manner, directly or indirectly, sought by agreement, communication, or conference with anyone to fix the bid price of the bidder or any other bidder, or to fix any overhead, profit, or cost element of the bid price, or of that of any other bidder, or to secure any advantage against the public body awarding the contract of anyone interested in the proposed contract; that all statements contained in the bid are true; and, further, that the bidder has not, directly or indirectly, submitted his or her bid price or any breakdown thereof, or the contents thereof, or divulged information or data relative thereto, or paid, and will not pay, any fee to any corporation, partnership, company association, organization, bid depository, or to any member or agent thereof to effectuate a collusive or sham bid. I declare under penalty of perjury of the laws of the State of California that the foregoing is true and correct. Construction Manager Authorized Signature/Title Subscribed and sworn to (or affirmed) before me on this day of 2010 by personally known to me or proved to me on the basis of satisfactory evidence to be the persons) who appeared before me. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. [SEAL] Notary Public My Commission Expires: City of Newport Beach -37- DRAFT Construction Management at Risk Contract Exhibit D EXHIBIT D Designation of Sureties Construction Manager: Provide the names, addresses, and phone numbers for all brokers and sureties from whom the Construction Manager intends to procure insurance and bonds (list by insurance /bond type): City of Newport Beach - -38- DRAFT Construction Management at Risk Contract Exhibit D EXHIBIT E Construction Manager's Industrial Safety Record Construction Manager_ Record Last Five (5) Full Years Current Year of Record The information required for these items is the same as required for columns 3 to 6, Code 10, Occupational Injuries, Summary-- Occupational Injuries and Illnesses, OSHA No, 102. City of Newport Beach -39- DRAFT Construction Management at Risk,Contract Exhibit E Current Record Record Record Record Record Total Year of for for for for for Record 2009 2008 2007 2006 2005 2010 No. of contracts Total dollar Amount of Contracts (in Thousands of $) No. of fatalities No. of lost Workday Cases No. of lost workday cases involving permanent transfer to another job or termination of employment The information required for these items is the same as required for columns 3 to 6, Code 10, Occupational Injuries, Summary-- Occupational Injuries and Illnesses, OSHA No, 102. City of Newport Beach -39- DRAFT Construction Management at Risk,Contract Exhibit E EXHIBIT F Faithful Performance Bond The premium charges on this Bond is $ being at the rate of $ thousand of the [insert applicable price]. WHEREAS, the City Council of the City of Newport Beach, State of California, by motion adopted, awarded to Name of Contractor, hereinafter designated as the "Principal ", a contract for construction of [Insert name of Project], Contract No. XXXX in the City of Newport Beach, in strict conformity with the plans, drawings, specifications, and other Contract Documents maintained in the Public Works Department of the City of Newport Beach, all of which are incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute Contract No. XXXX and the terms thereof require the furnishing of a Bond for the faithful performance of the Contract; NOW, THEREFORE, we, the Principal, and , duly authorized to transact business under the laws of the State of California as Surety (hereinafter "Surety "), are held and firmly bound unto the City of Newport Beach, in the sum of (INSERT CONTRACT DOLLAR AMOUNT) lawful money of the United States of America, said sum being [equal to 100% of the cost of construction for the Project]; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal, or the Principal's heirs, executors, administrators, successors, or assigns, fail to abide by, and well and truly keep and perform any or all the work, covenants, conditions, and agreements in the Contract Documents and any alteration thereof made as therein provided on its part, to be kept and performed at the time and in the manner therein specified, and in all respects according to its true intent and meaning, or fails to indemnify, defend, and save harmless the City of Newport Beach, its officers, employees and agents, as therein stipulated, then, Surety will faithfully perform the same, in an amount not exceeding the sum specified in this Bond; otherwise this obligation shall become null and void. As a part of the obligation secured hereby, and in addition to the face amount specified in this Performance Bond, there shall be included costs and reasonable expenses and fees, including reasonable attorneys fees, incurred by the City, only in the event the City is required to bring an action in law or equity against Surety to enforce the obligations of this Bond. Surety, for value received, stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Contract or to the work to be performed thereunder or to the specifications accompanying the same shall in any way affect its obligations on this Bond, and it does hereby waive notice of any such change, extension of time, alterations or additions of the Contract or to the work or to the specifications. City of Newport Beach -40- DRAFT Construction Management at Risk Contract Exhibit F This Faithful Performance Bond shall be extended and maintained by the Principal in full force and effect for one (1) year following the date of formal acceptance of the Project by the City. In the event that the Principal executed this bond as an individual, it is agreed that the death of any such Principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the Principal and Surety above named, on the day of 2010. Name of Contractor (Principal) Name of Surety Address of Surety Telephone Authorized Signature/Title Authorized Agent Signature Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED City of Newport Beach -41- DRAFT Construction Management at Risk Contract - Exhibit F - - State of California County of ACKNOWLEDGMENT )Ss. before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature State of California County of )Ss. SEAL before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature -City of Newport Beach Construction Management at Risk Contract SEAL -42- DRAFT Exhibit F EXHIBIT G Labor and Materials Payment Bond WHEREAS, the City Council of the City of Newport Beach, State of California, by motion adopted, has awarded to Name of Contractor, hereinafter designated as the "Principal," a contract for construction of [insert name of project], Contract No. XXXX in the City of Newport Beach, in strict conformity with the plans, drawings, specifications and other Contract Documents in the office of the Public Works Department of the City of Newport Beach, all of which are incorporated herein by this reference. WHEREAS, Principal has executed or is about to execute Contract No. XXXX and the terms thereof require the furnishing of a bond, providing that if Principal or any of Principal's subcontractors, shall fail to pay for any materials, provisions, or other supplies used in, upon, for, or about the performance of the work agreed to be done, or for any work or labor done thereon of any kind, the Surety on this bond will pay the same to the extent hereinafter set forth: NOW, THEREFORE, We the undersigned Principal, and, duly authorized to transact business under the laws of the State of California, as Surety, (referred to herein as "Surety ") are held firmly bound unto the City of Newport Beach, in the sum of (INSERT CONTRACT DOLLAR AMOUNT) lawful money of the United States of America, said sum being equal to [equal to 100% of the cost of construction for the Project]; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors, or assigns, jointly and severally, firmly by these present. THE CONDITION OF THIS OBLIGATION IS SUCH, that if the Principal or the Principal's subcontractors, fail to pay for any materials, provisions, or other supplies, implements or machinery used in, upon, for, or about the performance of the work contracted to be done, or for any other work or labor thereon of any kind, or for amounts due under the Unemployment Insurance Code with respect to such work or labor, or for any amounts required to be deducted, withheld and paid over to the Employment Development Department from the wages of employees of the Principal and subcontractors pursuant to Section 13020 of the Unemployment Insurance Code with respect to such work and labor, then the Surety will pay for the same, in an amount not exceeding the sum specified in this Bond, and also, in case suit is brought to enforce the obligations of this Bond, a reasonable attorney's fee, to be fixed by the Court as required by the provisions of Section 3250 of the Civil Code of the State of California. The Bond shall inure to the benefit of any and all persons, companies, and corporations entitled to file claims under Section 3181 of the California Civil Code so as to give a right of action to them or their assigns in any suit brought upon this Bond, as required by and in accordance with the provisions of Sections 3247 et. seq. of the Civil Code of the State of California. And Surety, for value received, hereby stipulates and agrees that no change, extension of time, alterations or additions to the terms of the Contract or to the work to be performed thereunder or the specifications accompanying the same shall in any wise affect its obligations on this Bond, and it does hereby waive notice of any such change, extension, of time, alterations or additions to the terms of the Contract or to the work or to the specifications. City of Newport Beach -43- DRAFT Construction Management at Risk Contract Exhibit G In the event that any principal above named executed this Bond as an individual, it is agreed that the death of any such principal shall not exonerate the Surety from its obligations under this Bond. IN WITNESS WHEREOF, this instrument has been duly executed by the above named Principal and Surety, on the day of 2010. Name of Contractor (Principal) Name of Surety Address of Surety Telephone Authorized Signature/Title Authorized Agent Signature Print Name and Title NOTARY ACKNOWLEDGMENTS OF CONTRACTOR AND SURETY MUST BE ATTACHED City of Newport Beach -44- - DRAFT Construction Management at Risk Contract Exhibit G State of California County of ) ss. before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. SEAL Signature State of California County of )Ss. before me, Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. SEAL City of Newport Beach -45- - - DRAFT Construction Management at Risk Contract Exhibit G Page 1 of 14 EXHIBIT H 0 Driver BUILDERS SINCE 1919 LICENSE NO. 102 Master Subcontract Agreement 101 No. (MSA #) This Master Subcontract Agreement (the "Agreement ") is executed this «00» day of <<Month >>, 20 <<Yr>> between C.W. Driver, Inc., a California corporation dba C. W. Driver, (the "Contractor ") and <<Company Name >>, (the "Subcontractor "). INTRODUCTION Contractor and Subcontractor agree as follows: A. That Contractor and Subcontractor wish to enter into this Master Subcontract Agreement to facilitate future projects in which Contractor may choose to retain Subcontractor to provide materials and perform services. The scope of work and other project specific terms and conditions (collectively, the "Subcontract Work ") shall be set forth in a work order ( "Work Order') for each specific project. B. That Contractor may employ Subcontractor from time to time on various constructions projects, as determined by Contractor in its sole discretion pursuant to Work Orders to be executed in connection with each such project. C. That this Agreement shall apply to all future subcontract work to be provided by Subcontractor on any project pursuant to such Work Orders, provided that the terms of this Agreement may be modified by a subsequent written Work Order signed by both parties varying the terms of this Agreement and only as to the particular Work Order. D. That this Agreement shall be construed in its broadest terms, such that all provisions of this Agreement shall be given full effect to the extent possible in light of the specific terms of any subsequent Work Order(s) and work order revisions. E. That the terms of this Agreement shall be deemed incorporated by reference with respect to any future construction project pursuant to which Contractor may employ Subcontractor under a Work Order, and for which Contractor has entered into, or will enter into, a Prime Contract as defined in Paragraph 1. 1. ARTICLE I: THE SUBCONTRACT DOCUMENTS 1.1 As to any future project in which Contractor employs Subcontractor, the Subcontract Documents (as may be referenced in this Agreement or in any other Agreement or document) shall consist of (1) this Agreement; (2) the "Prime Contract ", consisting of the Prime Contract documents as defined therein which may include, by way of example, a form of agreement between the Owner and Contractor and the other Contract Documents enumerated therein, including, as applicable, the conditions of the contract (general, special, supplementary and other conditions), drawings /plans, specifications and addenda effective as of the execution of the Prime Contract, together with addenda or modifications issued subsequent to the execution of the Prime Contract, whether in existence before or after the execution of this Agreement; and (3) the Work Order and any documents incorporated therein, These documents form the Subcontract and are fully a part of the Subcontract as if attached to this Agreement or repeated herein. As to each project that Contractor employs Subcontractor, the Subcontract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representation or agreements, either written or oral. In the event of any conflict, inconsistency, or ambiguity between or among this Agreement, any Work Order, or any amendment or modification to such Work Order, the terms of the most recently issued of the documents shall take precedence. CWD Initials — Subcontractor Initials Page 2 of 14 No. (MSA #) 1.2 Subcontractor shall be furnished copies of the Subcontract and all incorporated documents upon request, but Contractor may charge Subcontractor for the cost of reproduction and shipping thereof. ARTICLE 2: MUTUAL RIGHTS AND RESPONSIBILITIES 2.1 Contractor and Subcontractor shall be mutually bound by the terms of this Agreement and the Prime Contract to the extent that provisions of the Prime Contract apply to the Subcontract Work.. Contractor shall have benefits of all rights, remedies and redress against Subcontractor that the Owner, under Prime Contract, has against Contractor. Where provisions of the Prime Contract are inconsistent with provisions of this Agreement, the more stringent of the two shall govern. 2.2 Contractor may require Subcontractor to include provisions in its agreements with subcontractors or suppliers of any tier performing portions of the Subcontract Work under each Work Order by which Subcontractor and its subcontractor are mutually bound, to the extent of the Work to be performed by sub - subcontractors or supplier, assuming toward each other all obligations and responsibilities that Contractor and Subcontractor assume toward each other and having the benefits of all rights, remedies and redress each against the other that Contractor and Subcontractor have by virtue of the provisions of this Agreement. No second tier subcontracts shall be assigned by Contractor to Subcontractor without Subcontractor's knowledge and consent to the assignment. Subcontractor's acceptance of such assignment shall not be unreasonably withheld. ARTICLE 3: CONTRACTOR 3.1 Services Provided by Contractor 3.1.1 To the extent such matters are within the reasonable control of Contractor, Contractor shall cooperate with Subcontractor in scheduling and performing Contractor's Work to avoid conflict with or interference in the Subcontract Work and shall provide written responses to submittals made by Subcontractor within a reasonable time. As soon as practicable after execution of a Work Order, Contractor shall provide Subcontractor with copies of Contractor's construction schedule of submittals, together with such additional scheduling details as will enable Subcontractor to plan and perform the Subcontract Work properly. Subcontractor shall be notified of subsequent changes in the construction and submittal schedules, and additional scheduling details. 3.1.2 Where reasonably practicable, as determined by Contractor on a project -by- project basis, Contractor shall provide suitable areas for storage of Subcontractor's material and equipment during the course of its performance of the Subcontract Work, but Contractor shall not responsible for the security of tools, equipment, materials stored and other property stored, or any of Subcontractor's work in progress, all of which the Subcontractor is responsible for. 3.1.3 Subcontractor shall be solely responsible to protect Subcontractor's tools, equipment and materials and all of the Subcontract Work in progress. Subcontractor shall remain responsible for all Subcontract Work in progress until the Subcontract Work (or relevant portions thereof) are accepted in writing by Contractor. 3.1.4 Except as permitted by Contractor in writing, Contractor's equipment will not be available to Subcontractor. 3.1.5 If the Contractor accepts delivery on behalf of the Subcontractor of any of the Subcontractor's materials, supplies or equipment, whether or not the Subcontractor is absent from the site, the Contractor will not be liable for any deficiency or defect in quality, quantity or content of what was delivered. 3.2 Communications CWD Initials — Subcontractor Initials Page 3 of 14 No. (MSA #) 3.2.1 Contractor shall make available to Subcontractor information that materially affects each Work Order, including information that becomes available to Contractor subsequent to execution of each Work Order under this Agreement. 3.2.2 Contractor shall not give instructions or orders directly to employees or workmen of Subcontractor, except to persons designated as authorized representatives of Subcontractors. 3.2.3 Contractor, not the Subcontractor, shall have all direct communication with the Owner, Design Architect, Executive Architect, or any other design consultant, including but not limited to civil, structural, mechanical, electrical and plumbing engineering consultant. 3.3 Claims 3.3.1 Liquidated damages for delay, if provided for in the Work Order, shall be assessed against Subcontractor to the extent caused by, or contributed to by Subcontractor, Subcontractor's employees and agents, sub - subcontractors, suppliers or any person or entity for whose act Subcontractor may be liable. 3.3.2 Actual damages for delay shall be assessed against Subcontractor only to the extent caused or contributed to by Subcontractor, Subcontractor's employees and agents, sub - subcontractors, suppliers or any person or entity for whose act Subcontractor may be liable. 3.3.3 No claims for additional compensation or damages for delays, whether caused in whole or in part by any conduct on the part of Contractor, including, but not limited to, conduct amounting to a breach of this Agreement, or delays by other subcontractors or Owner, shall be recoverable from Contractor, and the extension of time for completion as provided in Section 3.3.4 shall be the sole remedy available to Subcontractor; provided, however, that in the event Contractor obtains additional compensation from Owner on account of delays for which Subcontractor has made a claim pursuant to this Section 3.3.3, Subcontractor shall be entitled to such portion of the additional compensation so received by Contractor from Owner as is equitable under the circumstances. In the event that Contractor prosecutes a claim against Owner for additional compensation for any delay which includes a pass- through delay claim by Subcontractor, Subcontractor shall cooperate fully with Contractor in the prosecution thereof and shall pay costs and expenses incurred in connection therewith. 3.3.4 Should Subcontractor be delayed in the prosecution or completion of critical path Subcontract Work by the act, neglect or default of Owner, Architect or Contractor, or should Subcontractor be delayed waiting for materials, if required by this Contract to be furnished by Owner or Contractor, or by damage caused by fire or other casualty for which Subcontractor is not responsible, or by the combined action of the workmen, in no way caused by, contributed to, or resulting from fault or collusion on the part of Subcontractor, or in the event of a lock -out by Contractor, then the time herein fixed for the completion of the Subcontract Work shall be extended the number of days that Subcontractor has thus been delayed, but no allowance or extension shall be made unless a claim therefore is presented in writing to Contractor within 48 hours of the commencement of such delay, and under no circumstances shall the time of completion be extended to a date which will prevent Contractor from completing the entire project within the time allowed Contractor by Owner for such completion. 3.4 Contractor's Remedies If Subcontractor defaults or neglects to carry out the Subcontract Work in accordance with this Agreement and/or any Work Order and fails within 48 hours after receipt of written notice from Contractor to commence and continue correction of such default or neglect with diligence and promptness, Contractor may, without prejudice to any other remedy Contractor may have, retain others to carry out the Subcontract Work or to make .good such deficiencies, as the case may be. Subcontractor shall be liable for all losses, costs, expenses, liabilities and damages, including consequential damages and liquidated damages, and any other damages, liabilities or CWD Initials — Subcontractor Initials Page 4 of 14 No. (MSA #) expenses recoverable under applicable law, sustained by Contractor, or for which Contractor may be liable to Owner or any other parry because of Subcontractor's default. Contractor may deduct all associated costs thereof from the payments then and thereafter due Subcontractor. ARTICLE 4: SUBCONTRACTOR 4.1 Execution and Progress of the Work 4.1.1 Subcontractor shall cooperate with Contractor in scheduling and performing the Subcontracts Work so as to avoid conflict, delay in or interference with the remaining Prime Contract work of Contractor, other subcontractors, or the work of the Owner's own forces or Owner's separate contractors. Under each Work Order, Subcontractor shall, (1) provide Contractor with scheduling information and a proposed schedule for performance of the Subcontract Work in a form acceptable to Contractor, (2) conform to Contractor's progress schedules and all revisions or changes made thereto, (3) prosecute the Subcontract Work in a prompt and diligent manner in accordance with Contractors progress schedules without delaying or hindering Contractor's work or the work of other contractors or subcontractors, (4) coordinate the Subcontract Work with that of all other contractors, subcontractors, suppliers and /or materialmen of the Contractor, in a manner that will facilitate the efficient completion of the entire work and (S) in the event Subcontractor fails to maintain its part of the Contractor's schedule, it shall, without additional compensation, accelerate the work as Contractor may direct until the Subcontractor's Work is compliant with such schedule. 4.1.2 Contractor shall have complete control of the premises on which the work for each Work Order is to be performed and shall have the right to decide the time and order in which various portions of the work shall be installed and the relative priority of the Subcontract Work with the work of other subcontractors, and, in general, all other matters pertaining to the timely and orderly conduct of the work of all subcontractors on the project job site. 4.1.3 Subcontractor shall pay for, prepare and promptly submit all shop drawings, product data, samples and similar submittals required by the Subcontract after receipt of notice to proceed under the Work Order. Subcontractor shall furnish all as -built drawings, operations manuals and warranties related to his trade within the time frame defined in the Prime Contract. Delivery of such as -built drawings, operations manuals and warranties shall be a condition precedent to final payment. 4.1.4 Subcontractor shall submit to Contractor in no more than seven (7) days after receipt of Work Order, a schedule of values (the Schedule of Values ") allocated to the various parts of the Subcontract Work, aggregating the Subcontract Sum, as set forth in the Work Order, made out in such detail as Contractor or the Owner may reasonably require, and supported by such evidence as Contractor may direct. In applying for payment, Subcontractor shall submit statements based upon the Schedule of Values approved by Contractor. 4.1.5 Subcontractor shall furnish to Contractor periodic progress reports on the Subcontract Work as reasonably specified by Contractor, including information on the status of material and equipment that may be in the course of preparation or manufacture. 4.1.6 Subcontractor agrees that the Contractor, Owner, Architect, and other Design Consultants, will have the authority to reject work that does not conform to the Prime Contract documents or the Subcontract documents. The Architects' or other Design Consultants' decision on matters relating to aesthetic effect shall be final if consistent with the intent expressed in the Contract Documents. 4.1.7 Subcontractor shall pay for materials, equipment and labor used in connection with the performance of the Subcontract Work through the period covered by each progress payment received from Contractor, and shall furnish satisfactory evidence to verify compliance with the above requirements. CWD Initials — Subcontractor Initials Page 5 of 14 No. (MSA #) 4.1.8 Subcontractor shall take necessary precautions to protect properly the work of other subcontractors from damage caused by operations under each Work Order. Failure to provide such protection will obligate the Subcontractor to pay the cost of any damage to work by others. 4.1.9 Subcontractor shall cooperate with Contractor, other subcontractors and the Owners' own forces whose work might interfere with the Subcontract Work. Subcontractor shall participate in the preparation of coordinated drawing in areas of congestion, specifically noting and advising Contractor of potential conflicts between the Subcontract Work and the work of Contractor, other subcontractors or the Owners own forces. 4.1.10 Whenever the Subcontractor is performing work on the site, the Subcontractor shall submit daily reports to the Contractor, no later than 9:00 a.m., indicating the number of personnel working on the site that day, along with a description of activities, locations and equipment used in the conduct of the work. 4.1.1 1 The Subcontractor shall employ labor satisfactory to the Contractor. Subcontractor shall remove or cause to have removed from the project any employee or employees considered unsatisfactory by the Contractor. 4.2 Laws, Permits, Fees and Notices 4.2.1 Subcontractor shall give notices and comply with laws, ordinances, rules, regulations and orders of public authorities bearing on performance of the Subcontract Work. Subcontractor shall secure and pay for permits and governmental fees, licenses and inspections necessary for proper execution and completion of Subcontractor's Work under each Work Order, the furnishing of which is required of Contractor by the Prime Contract. 4.2.2 Subcontractors shall comply with federal, state and local tax laws, labor laws, social security acts, unemployment compensation acts and workers compensation acts insofar as applicable to the performance of each Work Order. 4.3 Safety Precautions and Procedures 4.3.1 Subcontractor shall take reasonable safety precautions with respect to performance of each Work Order, shall comply with safety measures initiated by Contractor and with applicable laws, ordinances, rules, regulations and order of public authorities for the safety of persons or property in accordance with the requirements of the Prime Contract. Subcontractor shall report to Contractor immediately any injury to an employee or agent of Subcontractor that occurred at the jobsite. 4.3.2 If hazardous substances of a type of which an employer is required by law to notify its employees are being used on the site by Subcontractor or its subcontractors of any tier, or by anyone directly or indirectly employed by them, Subcontractor shall, prior to exposure of any employees on the site to such a substance, give written notice of the chemical composition thereof to Contractor in sufficient detail and time to permit compliance with such laws by Contractor, other subcontractors and other employees on site. Subcontractor shall defend, indemnify and hold harmless Contractor for all expenses, costs and liability incurred by Contractor, the Owner, other subcontractor and other parties, resulting from Subcontractor's use, disposal of, or other disposition of any hazardous material at the jobsite. 4.3.3 If Subcontractor encounters material on the site reasonably believed to be asbestos, lead, polychlorinated biphenyl (PCB) or other hazardous material or wastes that have not been rendered harmless, Subcontractor shall immediately stop work in the area affected and report the condition to Contractor in writing. The work in the affected area shall resume only after abatement and removal of the asbestos, lead, polychlorinated biphenyl (PCB) or other hazardous material or wastes, or when it has been rendered harmless, and a licensed industrial hygienist has furnished written certification that the area is safe. 4.3.4 Subcontractor shall comply with all safety and security rules and regulations established by the Owner and /or Contractor. CWD Initials — Subcontractor Initials Page 6 of 14 No. (MSA #) 4.3.5 Subcontractor and /or the employees of the Subcontractor specified by Contractor shall attend all safety meetings designed by Contractor, which typically will be convened on a weekly basis. 4.3.6 Subcontractors shall provide the Contractor requirements. A copy of the Subcontractor's Contractor prior to beginning work. 4.4 Cleaning Up proof of compliance with CA Safety Law S &198 I and OSHA Injury and Illness Prevention Program shall be furnished to the 4.4.1 Subcontractor shall clean up the work site daily and shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations performed under this Agreement and each Work Order issued hereunder. Subcontractor shall not be held responsible for unclean conditions caused by other Contractors or Subcontractors. 4.5 Warranty 4.5.1 Subcontractor warrants to the Owner and Contractor that materials and equipment furnished under each Work Order will be of good quality and new, unless otherwise required or permitted by the Subcontract documents, that the Subcontract Work will be free from defects not inherent in the quality required or permitted and free from hazardous materials or components and that the Work will conform with the requirements of the Subcontract. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. Subcontractor shall provide warranties and maintenance stock in accordance with Subcontractor's specific trade sections; Division I or Work Order requirements. The more stringent requirement shall take precedence. 4.5.2 The warranty period shall begin upon Owners final acceptance of the Prime Contract work, or receipt of "Certificate of Occupancy ", whichever is later, not at completion of the Subcontract Work. Unless stated otherwise the warranty period shall be one (1) year. 4.5.3 Subcontractor is also responsible for the costs of repairs /replacement of all other adjacent and /or related work that is damaged directly or indirectly by defective work done in conjunction with all Work Orders. These requirements shall survive the final payment of all Work Orders and any contrary language on the Subcontractor's warranty form shall be deemed null and void. 4.6 Indemnification 4.6.1 To the fullest extent permitted by law, Subcontractor shall defend, indemnify and hold harmless the Owner, Contractor, Architect, or Design Consultant, or any of their respective consultants, agents, officers, directors and employees of any of them from and against claims, damages, losses and expenses, including, but not limited to, attorney's fees, arising out of, relating to or resulting from performance of the Subcontract Work by Subcontractor, Subcontractor's sub - contractors of any tier, anyone directly or indirectly employed by them, or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge or otherwise reduce other rights or obligations of indemnity that would otherwise exist as to a party or person described in this Paragraph 4.6.1 Not withstanding the foregoing, if the Prime Contract contains a broader, or more stringent, indemnity obligation than that contained in this section, 4.6.1, then the more broad or stringent indemnification shall apply to the subcontract. 4.6.2 The obligations of Subcontractors under this Paragraph shall not extend to the liability of the Architect, or other Design Consultant, or their respective consultants, agents and employees of any of them arising out of (1) their preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs or specifications; or CWD Initials Subcontractor Initials Page 7 of 14 No. (MSA #) (2) the giving of or the failure to give directions or instructions by the Architect, or other Design Consultant, or their respective consultants and agents and employees of any of them, provided such giving or failure is the primary cause of the injury or damage. 4.6.3 To the fullest extent permitted by law, Subcontractor shall defend, indemnify and hold harmless the Owner, Contractor, Architect, or other Design Consultant, or any of their respective consultants, agents and employees of any of them from and against claims, damages, losses and expense, including, but not limited to, attorney's fees, arising out of or resulting from mechanic's liens or stop notices filed by Subcontractor, Subcontractor's sub- contractors (of any tier), anyone directly or indirectly employed by them or suppliers, which arise due to Subcontractor's failure to make payments due to such claimant. ARTICLE 5: CHANGES IN THE WORK 5.1 The Owner may make changes in the Work by issuing modifications to the Prime Contract. Upon receipt of such a modification issued subsequent to the execution of each Work Order, Contractor shall promptly notify Subcontractor of the modification to the extent it affects the Subcontract Work. Unless otherwise directed by Contractor, Subcontractor shall not thereafter order materials or perform Work that would be inconsistent with the changes made by such modifications. 5.2 With respect to each project, Subcontractor may be ordered in writing by Contractor, without invalidating this Agreement or any Work Order issued hereunder, to make changes in the Subcontract Work within the general scope of each Work Order consisting of additions, deletions or other revisions, including those required by modifications to the Prime Contract issued subsequent to the execution of this Agreement and each Work Order. Subcontractor, prior to the commencement of such changed or revised Work, shall, if affected thereby, submit promptly to Contractor a written request for adjustment to the Subcontract Sum and Subcontract Time for such a revised work in a manner consistent with requirements of the Subcontract Documents. 5.3 In the event Contractor and Subcontractor cannot agree on the value of or time extension due as a result of a change to the Subcontract Work, Subcontractor shall proceed with and timely prosecute the change as directed in writing by Contractor. Once Subcontractor receives Contractor's written direction, Subcontractor is solely responsible for timely performance of the Subcontract Work as modified by the written direction, the dispute to be submitted for resolution in accordance with Article 6. ARTICLE 6: ARBITRATION 6.1 Any controversy or claim between Contractor and Subcontractor arising out of or related to this Agreement, or to any Work Order or the breach thereof, shall be resolved by arbitration which shall be conducted in the same manner and under the same procedure as provided in the Prime Contract with respect to claims between the Owner and Contractor, except that a decision by the Architect, or other Design Consultant (if applicable), shall not be a condition precedent to arbitration. If the Prime Contract does not provide for arbitration or fails to specify the manner and procedure for arbitration, disputes under this Subcontract shall be resolved in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect unless the parties mutually agree otherwise. The arbitration proceedings shall be in the county where the project is located, unless the parties mutually agree otherwise. 6.2 Except by written consent of the person or entity sought to be joined, no arbitration arising out of or relating to this Agreement or any Work Order shall include, by consolidation or joinder or in any other manner, any person or entity not a parry to this Agreement under which such arbitration arises, unless it is shown at the time the demand for arbitration is filed that (1) such person or entity is substantially involved in a common question of fact or law; (2) the presence of such a person or entity is required if complete relief is to be accorded in the arbitration, (3) the interest or responsibility of such person or entity in the matter is not insubstantial. This Agreement to arbitrate and any other written agreement to CWD Initials — Subcontractor Initials _ Page 8 of 14 No. (MSA #) arbitrate with an additional person or persons referred to herein shall be specifically enforceable under applicable law in any court having jurisdiction thereof. - 6.3 Contractor shall give Subcontractor prompt written notice of any demand received or made by Contractor for arbitration if the dispute involves or relates to the Subcontract Work. Contractor shall consent to inclusion of Subcontractor in an arbitration proceeding whether by joinder, consolidation or otherwise, if Subcontractor requests in writing to be included within ten (10) days after receipt of Contractor's notice. 6.4 The award rendered by the arbitrator or arbitrators shall be final, and judgments may be entered upon it in accordance with applicable law or in any court having jurisdiction thereof. 6.5 This Article 6 shall not be deemed a limitation of rights or remedies that Contractor or Subcontractor may have under federal law, under states mechanics' lien laws or under applicable labor or material payment bonds unless such rights or remedies are waived by the Subcontractor. ARTICLE 7: TERMINATION, SUSPENSION OR ASSIGNMENT OF THE SUBCONTRACT 7.1 Termination by Contractor, Other Assurances 7.1.1 If Subcontractor fails or neglects to carry out the Subcontract Work in accordance with the Subcontract documents or otherwise to perform in accordance with this Agreement or any Work Order issued hereunder and fails within forty -eight (48) hours after receipt of written notice to commence and continue correction of such default or neglect with diligence and promptness, the Contractor may without prejudice to any other remedy Contractor may have, terminate the Subcontract and finish Subcontractor's Work by whatever method Contractor may deem expedient. If the unpaid balance of the balance of the Subcontract Sum for the Subcontract Work actually completed by Subcontractor exceeds all direct and associated expenses incurred by Contractor in finishing Subcontractor's Work, such excess shall be paid to Subcontractor, but if such expenses exceed such unpaid balance, Subcontractor shall promptly pay the difference to Contractor. 7.1.2 Notwithstanding other provisions in this Agreement or in any Work Order, Contractor reserves the right to require that on any project for which Subcontractor is employed, Contractor may require Subcontractor to provide Contractor with additional assurances as to Subcontractor's performance under any Work Order. Such additional assurances may include, without limitation, providing of additional guarantees by financially responsible parties, posting of additional performance bonds, providing updated financial information, posting collateral, distribution of funds through joint check, increased retention and providing proof of payment as to Subcontractor's employees, sub - subcontractors, material and equipment suppliers, and other creditors. Failure of Subcontractor to comply promptly with Contractor's request for additional assurances shall constitute a material breach of this Agreement and each Work Order issued hereunder. 7.1.3 Contractor may at any time and for any reason terminate Subcontractor's services and work at Contractor's convenience. Cancellation shall be by service of written notice to Subcontractor's place of business. 7.1.3.1 Upon receipt of such notice, Subcontractor shall, unless the notice directs otherwise, (1) immediately discontinue the work and placing of orders for - materials, facilities and supplies in connection with the performance of the Subcontract Work, (2) make every reasonable effort to procure cancellation of all existing orders or contracts upon terms satisfactory to Contractor or, at the option of Contractor, give Contractor the right to assume those obligations directly, including all benefits to be derived there from. Subcontractor shall thereafter do only such work as may be necessary to preserve and protect the work already in progress and to protect material and equipment on the job site or in transit thereto. CWD Initials _ Subcontractor Initials Page 9 of 14 No. (MSA #) 7.1.3.2 Upon such termination, Subcontractor shall be entitled to payment in accordance with Article I I only as follows: (1) the actual cost of the Subcontract Work completed in conformity with this Agreement; plus, (2) such other costs actually incurred by Subcontractor as are permitted by the prime contract and approved by Owner; plus (3) fifteen percent (15 %) of the cost of the work referred to in item (1) above for overhead and profit. There shall be deducted from such sums as provided in this subparagraph the amount of any payments made to Subcontractor prior to the date of the termination of this Agreement. In no event shall payment due hereunder exceed the amount due for approved units of work or percentage of completion. Subcontractor shall not be entitled to any claim or claim of lien against Contractor or Owner for any additional compensation or damages in the event of such termination and payment. 7.2 Assignment of the Subcontract 7.2.1 In the event of termination of the Prime Contract by the Owner, Contractor may assign the Work Order issued under this Agreement to the Owner, with the Owner's Agreement, subject to the provisions of the Prime Contract. 7.2.2 Subcontractor shall not assign the Work of this Agreement or any Work Order issued hereunder without the written consent of Contractor, nor subcontract the whole of the Subcontract Work without written consent of Contractor, which consent may be granted in Contractor's sole and absolute discretion. ARTICLE 8: THE WORK OF THIS SUBCONTRACT 8.1 With respect to each project, Subcontractor shall execute the Subcontract Work described in the Subcontract documents and each Work Order, including all labor, materials, equipment, services and other items required to complete such portion of the Work, except to the extent specifically indicated in the Subcontract Documents and each Work Order to be the responsibility of others. 8.2 In the event of any dispute between Contractor and Subcontractor over the scope of Subcontractor's work under the Contract Documents, Subcontractor will not stop work but will prosecute the work diligently to completion, and the dispute may be submitted for resolution in accordance with Article 6. ARTICLE 9: DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION 9.1 Subcontractor's date of commencement is the date from which the contract time defined in the Work Order is measured. The date of commencement shall be identified in each Work Order; if no date is stated in the Work Order then the date of commencement shall be the date of this Agreement, as first written above. 9.2 The Work under each Work Order shall be substantially completed not later than the date or dates indicated in the Work Order of the specific project, subject to adjustments of the Subcontract Time as provided in the Subcontract documents. If the Subcontractor fails to complete the Work or any portion thereof on schedule, Subcontractor shall be liable to Contractor for resulting damages, expenses and costs. 9.3 Time is of the essence of this Agreement and each Work Order issued hereunder. 9.4 No extension of time will be valid without contractor's written consent after claim made by Subcontractor in accordance with Paragraphs 3.3.3, 3.3.4 and 5.2. CWD Initials Subcontractor Initials Page 10 of 14 ARTICLE 10: SUBCONTRACT SUM No. (MSA #) 10.1 With respect to each project, Contractor shall pay Subcontractor for performance of Subcontractor the Subcontract Sum as specified in the Work Order, subject to additions and deductions as provided in the Subcontract Documents. ARTICLE 11: PROGRESS PAYMENTS 11.1 Based upon application for payment submitted to Contractor by Subcontractor on C.W. DRIVER Invoice form, corresponding to the Applications for Payment submitted by Contractor to the Owner, Architect or other Design Consultant, and Certificates for Payment issued by the Owner, Architect, or other Design Consultant, Contractor shall make progress payments on account of the Subcontract Sum to Subcontractor as provided below and elsewhere in the Subcontract documents and the Work Order. 11.2 Except as specifically provided differently in the Work Order or in the respective Prime Contract, the period covered by each application for payment shall be one calendar month ending on the last day of the month, or as follows: (1) Payments will be made monthly on progress estimates as approved by Contractor covering ninety percent (90%) of the value of the Subcontract Work completed by Subcontractor to the end of the previous month, such payment shall be made ten (10) working days after Contractor receives payment for such Work from the Owner; (2) Payment of the balance of ten percent (10 %) owing under each Work Order shall be made within ten (10) working days after payment has been received by Contractor; (3) If Contractor makes payment to Subcontractor by the tenth (W) of the month following application for payment a two percent (2q) discount will be applied should Subcontractor request and C.W. DRIVER agree to the early payment; (4) Provided that notwithstanding the foregoing, no progress payment or final payment shall be due or payable until Subcontractor furnishes Contractor with Statutory Lien Releases showing (a) in the case of a progress payment, that all accounts incurred by Subcontractor in the performance of this Agreement and each Work Order issued hereunder up to the end of the previous months have been paid, and (b) in the case of a final payment that all accounts incurred by Subcontractor in the performance of each Work Order have been paid, or stating the particulars of any accounts still remain unpaid; (5) Subcontractor hereby authorizes Contractor to pay any unpaid accounts out of monies otherwise owed to Subcontractor; the amount of any account in dispute or any account not disclosed by Subcontractor but of which Contractor has knowledge may be retained by Contractor pending determination of the matter; and (6) Performance by Subcontractor in accordance with the requirements of the Subcontract Documents shall be a condition precedent to the Contractor's obligation to make any payments to Subcontractor. Subcontractor shall submit all "Conditional Releases" as a condition precedent to progress payment and provide "Unconditional Waivers and Releases Upon Progress Payment" within one (1) week of progress payment from Contractor. These releases are to be on C.W. DRIVER forms. Subcontractor shall also submit as precedent to progress payment evidence that contributions to all relevant Union Trust Funds are not delinquent. 11.3 Substantial Completion 11.3.1 When Subcontract Work or a designated portion thereof is substantially complete and in accordance with the requirements of the Work Order and the Prime Contract, Contractor shall, upon application by Subcontractor, make prompt application for payment for such Work (subject in every case to the right of Contractor to retain such additional amounts to pay for claims under any mechanic's liens or other claims). Within ten (10) days following receipt of payment covering such substantially completed Work, Contractor shall, to the full extent allowed in the Prime Contract, make payment to Subcontractor, deducting any portion of the funds for Subcontractor's Work withheld in accordance with the Certificate for Payment issued by the Owner, Architect or other Design Consultant to cover costs of items to be completed or corrected by Subcontractor. Such payments to Subcontractor shall be the entire unpaid balance of the Subcontract Sum if a full release of retention is allowed under the Prime Contract for the Subcontract Work prior to completion of the entire project. If the Prime Contract does not allow for a full release of retention, then such payments shall be an amount that, when added to the previous payment to Subcontractor, will reduce the retention on Subcontractor's substantially completed Work to the same percentage as that on Contractors Work covered by the Certificate for Payment. CWD Initials — Subcontractor Initials Page 11 of 14 ARTICLE 12: FINAL PAYMENT No. (MSA #) 12.1 With respect to each Work Order, final payment, constituting the entire unpaid balance of the Subcontract Sum, shall be made by Contractor to Subcontractor when Subcontractor's Work is fully performed in accordance with the requirements of the Contract Documents and the Architect, or other Design Consultant, has issued a certificate of completion covering the whole of the Prime Contract work, unless the Owner consents to making final payment to Subcontractor at an earlier date upon completion of the Subcontract Work. 12.2 Before issuance of the final payment, Subcontractor, if required and in addition to the requirements of Section 1 1.2, shall submit evidence satisfactory to Contractor that all payrolls, bills for materials and equipment and all known indebtedness connected with Subcontractor's Work has been satisfied. ARTICLE 13: INSURANCE AND BONDS 13.1 Subcontractor shall purchase and maintain insurance in accordance with the Prime Contract and Subcontract Documents, but in all instances should be at a minimum the following types of coverage and limits of liability: 13.1.1 Prior to beginning work on Work Order, Subcontractor must provide a current Certificate of Insurance for Commercial General Liability insurance naming Contractor and Owner and such other parties as may be indentified in the Prime Contract as additional insureds, verifying a minimum of One Million Dollars ($1,000,000) per occurrence / Two Million Dollars ($2,000,000) per project aggregate from an AM Best A- VII rated company, such policy to include a waiver of subrogation endorsement and primary non - contributory clause; Automobile Liability insurance for hired, owned and non -owned vehicles in the minimum amount of One Million Dollars ($1,000,000) per occurrence and in the aggregate, and employer's liability /workers' compensation with statutory limits of coverage and including a waiver of subrogation. All such insurance policies shall be for higher limits of coverage if specified in the Work Order. No Subcontract Work may commence on any project unless and until acceptable insurance policies have been received. No "modified occurrence" general liability policies are acceptable. 13.1.2 On projects where Contractor or the Owner has provided builder's risk or similar insurance, such insurance may be subject to an amount deductible from the sums otherwise payable there under, and the burden of such deduction shall be borne by the party responsible for the loss; or if no responsible parry can be determined, by the party receiving the direct benefit of such insurance. 13.1.3 Where Subcontractor has provided a surety bond in connection with the Work, Subcontractor shall obtain the written consent of the Surety for all amendments to and increase in the amount under any Work Order as required by the Surety, and at a minimum where the aggregate increase in the value of the amount under any Work Order is greater than ten percent (10 %), and shall ensure continued bonding of Subcontractor's obligations under the Subcontract Documents. When a surety bond has been provided, it is the Subcontractor's responsibility to include the additional bond premium on all appropriate change requests. 13.2 Coverage shall be maintained without interruption from the commencement of Subcontractor's Work until expiration of warranty period or any other specific contractual requirement (the later of the two shall govern). 13.3 Certificates of insurance acceptable to Contractor shall be filed with Contractor prior to commencement of Subcontractor's Work. These certificates and the insurance policies required by this Article 13 shall contain a provision that coverage afforded under the policies will not be cancelled or allowed to expire until at least thirty (30) days prior written notice has been given to Contractor. If any of the foregoing insurance coverage is required to remain in force after final payment, an additional certificate evidencing continuation of such coverage shall be submitted with the final application for payment required in Article 12. If any information concerning reduction of coverage is not furnished by the insurer, it shall be furnished by Subcontractor with reasonable promptness according to Subcontractor's information and belief. CWD Initials — Subcontractor Initials Page 12 of 14 No. (MSA #) 13.4 Contractor, if requested, shall furnish to Subcontractor satisfactory evidence of insurance required of Contractor under Prime Contract, 13.5 Contractor and Subcontractor waive all rights against (1) each other and any of their Subcontractors, sub - subcontractors, agents and employees, each of the other and (2) the Owner, the Architect, or other Design Consultant, other consultants, separate contractors, and any of their subcontractors, sub - subcontractors, agents and employees for damages caused by fire or other perils to the extent covered by property insurance provided under Prime Contract or other property insurance applicable to the work, except such rights as they may have to proceeds of such insurance held by the owner as fiduciary, Subcontractor shall require of Subcontractor's sub - subcontractors, agents and employees, by appropriate agreements, written where legally required for validity, similar waivers in favor of other parties enumerated herein. The policies shall provide such waivers of subrogation for General Liability and Workers Compensation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged. 13.6 Contractor shall promptly, upon request of Subcontractor, furnish a copy or permit a copy to be made of any bond covering payment of obligations arising under the Subcontract. 13.7 Subcontractor shall provide performance bonds and /or payment bonds in amounts as specifically set forth in each Work Order. ARTICLE 14: ADDITIONAL PROVISIONS 14.1 All Work Orders will include, but are not necessarily limited to, the following conditions: 14.1.1 Subcontractor shall pay all applicable taxes, including the city business tax for Subcontractor's business. 14.1.2 Contractor shall provide the general building permit; Subcontractor shall be responsible for any supplemental permits required for their trade, calling for inspection of Subcontractor's Work notifying the Contractor of all scheduled inspections, and being present for such inspections. 14.1.3 Subcontractor shall provide all scaffolding and hoisting required for the performance of the Subcontract Work. Costs for temporary removal and replacement of field obstructions to accommodate scaffolding, rigging or hoisting is the responsibility of the Subcontractor. 14.1.4 Subcontractor shall pay for all testing and inspections required for the Subcontract Work that is not specifically provided by the Owner. 14.1.5 Subcontractor shall inform the field superintendent a minimum of (3) days in advance of any deliveries to the site. 14.1.6 Subcontractor is responsible for and shall obtain OSHA permits and comply with all OSHA codes and regulations related to Subcontractors work. ARTICLE 15: MISCELLANEOUS PROVISIONS 15.1 Where reference is made in this Agreement to a provision of the Work Order or another Subcontract Document, the reference refers to that provision as amended or supplemented by other provisions of the Subcontract documents. 15.2 Each of the parties acknowledge that it has been represented by independent counsel of its choice throughout all negotiations that have preceded the execution of this Agreement and that has executed the same with consent and upon CWD Initials — Subcontractor Initials Page 13 of 14 No. (MSA #) the advice of said independent counsel. Each party and its counsel cooperated in the drafting and preparation of this Agreement and the documents referred to herein. Accordingly, any rule of law, including, but not limited to California Civil Code Section 1654 or any legal decision that would require interpretation of any ambiguities in this Agreement against the party that drafted it, is not applicable and is hereby expressly waived. 15.3 Each party hereto shall cooperate with the other party and shall take such further action and shall execute and deliver such further documents as may be necessary or desirable in order to carry out the provisions and purposes of this Agreement. 15.4 Except as expressly authorized in this Agreement, neither party to this Agreement has the right to represent or hold itself out to the public as acting as an agent for the other party. Neither patty to this Agreement has the right to conduct any business or enter into contracts on behalf of the other party or bind the credit of the other party or in any way operate its business under trade names, trademarks, service marks or other business insignias of the party without the prior written consent of that party. Contractor and Subcontractor shall each serve as independent contractor as to one another and not as principal and agent as to one another. 15.5 Contractor and Subcontractor each acknowledges to the other that it has the right and authority to enter into this Agreement, that the consent of no other party is necessary and it has no restrictions on entering into this Agreement. Furthermore, Contractor and Subcontractor each represent to the other that the person signing this Agreement on behalf of that party has the right and authority to enter into this Agreement on behalf of that party and that the execution of this Agreement by that party will not violate any other agreement or arrangement to which that party is obligated. 15.6 This Agreement, together with the other Subcontract Documents referenced herein, sets forth the entire understanding of the parties with respect to the subject matter hereof, supersedes all existing oral or written agreements between them concerning such subject matter, and may be modified only by a written instrument duly executed by the party to be charged, except as otherwise specifically provided for in this Agreement. 15.7 Any waiver by any party of a breach of any provision of this Agreement shall not operate as or be construed to be a waiver of any other breach of that provision or of any breach of any other provision of this Agreement. The failure of a party to insist upon strict adherence to any term of this Agreement on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. Any waiver must be in writing. 15.8 If any provision of this Agreement is invalid, illegal or unenforceable, the balance of this Agreement shall remain in effect, and if any provision is inapplicable to any person or circumstance, it shall nevertheless remain applicable to all other persons and circumstances. 15.9 The headings in this Agreement are solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement. 15.10 Any masculine personal pronoun shall be considered to mean the corresponding feminine or Neuter personal pronoun, and all singular nouns shall be considered to mean the plural form, and vice versa, as the context requires. 15.11 This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 15.12 This Agreement shall be governed by and construed in accordance with the laws of the State in which the work is performed. 1.5.13 The parties shall bear their own respective attorney's fees incurred in any arbitration proceedings brought under the Subcontract Work, regardless of the identity of the prevailing party in such proceedings. CWD Initials — Subcontractor Initials Page 14 of 14 TO CONTRACTOR: C.W. DRIVER 468 NORTH ROSEMEAD PASADENA, CA 91 107 No. (MSA #) TO SUBCONTRACTOR: <<Company Name>> <<Address>> <<City, State, Zip>> Any notice or other communication given by certified mail or other receipted delivery services shall be deemed given at the time of certification thereof, except for a notice changing a party's address which shall be deemed given at the time of receipt thereof. This Agreement is entered into as of the day and year first written above. CONTRACTOR C. W. DRIVER BY: <<Name>> <<Title>> Date: License Number: 102 SUBCONTRACTOR <<Company Name>> BY: Print Name: Title: Date: License Number: License Classification: CWD Initials _ Subcontractor Initials C.river eUlLf)J RN SIAt F 1919 Mass Excavation Suer aoy 04/19/10 Newport Beach Civic Center and Park Newport Beach, CA Printed: 20- Apr -10 Estimate No.: #87101 Square Feet: 122,295 Months On -Site: 25.0 Includes Addenda: NIA Estimator: Ros, 01 21 00 RG,BF,TF,VR * Spec No Seq Description Notes Mass Ex Percent Cost per Sqft a' 01 1000 1 Assumptions 01 21 00 2 Allowances 01 81 13 3 Sustainable Design Requirements -LEED Registration & Fees In Soft Costs 4 LEED Enhanced Commissioning Requirements In Soft Costs 5 Hazardous Materials Mitigation In Soft Costs 01 7300 6 Surveying 99,100 01 S000 7 Site Specific Requirements 66,380 01 5000 8 Temp. Barricades & Chain link Fencing 84,866 01 5000 9 Security In Soft Costs 01 5000 10 Temp Facilities and Controls 41,330 11 Construction & Final Clean -Up 26,004 12 Tests and Inspection In Soft Costs 01 74 19 14 Construction waste management and disposal 2,849 31 0000 15 Site Preparation/ Earthwork 3,366,992 16 Temp Dewatering 12,387 31 50 10 17 Earth Shores & Underpin 1,711,799 31 2500 19 Erosion Control 34,166 32 12 16 20 Asphaltic Paving 15,207 03 33 13 23 Site Walls 140,265 3341 00 30 Drainage 234,947 0661 00 32 Wrought Iron I RFP Fencing 23,596 07 11 16 50 Waterproofing 363,795 01 3233 109 Time Lapse Photography 4,627 SUBTOTAL 6,228,309 XTR- 01000 -t 117 Contingency 8.00% 498,265 PAGE 1 CW Driver BU I Liz Ii RS SING li 1.414 Mass Excavation C. W. DRIVER .StEStam..as:y 04/19110 Spec No Seq Description Pdmed: 20- Apr -10 Newport Beach Civic Center and Park Newport Beach, CA Estimate No.: #07101 Square Feet: 122,295 Months On -Site: 25.0 Includes Addenda: NIA Estimator: RDS, 121 RG,BF,TF,VR Notes Mass Ex Percent Cost per Sqft XTR- 01001 -P 118 Escalation DRM -00615 i 119 Sub Bonds 000- 0 1030 -M 120 Preconscruction 000 - 01000 -M 121 Generat Conditions DRM - 00650 -1 122 Permits & Special Insur. GCM- 01659- 123 Data Processing 0.25% DRM - 00653 - 124 Liability Insurance AAA- 010004 125 Overhead & Fee 3.25% DRM - 00610 -s 126 Prime Bond - 0.57% Total Estimate PAGE 2 6,726,574 C.W. Driver Newport Beach Civic Center and Park HUMOL•'RS SINCE 1431 SCOPE AND PRICING SHEETS Primed: 4120110 3:18 PM P.ePa�ea: 20- Apr -10 #87101 PAGE 1 • a r Pdn,.d: Q01103:18 PM ri er Newport Beach Civic Center and Park P'e'ared: 20- Apr -10 0(I 1.1.111; R SINICF 1931 #87101 SCOPE AND PRICING SHEETS 04107/10 20- Apr -10 * Budget# Description /Scope of Work Quantity Unit CostlUnit Total Alternates Grand Total LEED Enhanced Commission in soft costs, if required Alternates 1 Grand Total Hazardous Materials Mitigati Mass Ex Layout and monitoring for soil harvesting, site 240.0 cwhr 215.00 51,600 mass excavation and export Layout for the shoring wall 80.0 cwhr 215.00 17,200 Shoring monitoring 120.0 cwhr 215.00 25,800 Provide as -built drawings 1.0 Isum 4,500 4,500 Alternates Grand Total PAGE 2 99,100 99,100 C. W. . DL i Y e Newport Beach Civic Center and Park Ill.. "I. 1- 1) FI tB SI "'TC F: 1. +1311 SCOPE AND PRICING SHEETS &+need: M 0110 3:18 PM PaP,ed: 20- Apr -10 #87101 PAGE 3 C. NV. Drive Printed: 4!20Apr -10 [[��- ��I1�� Newport Beach Civic Center and Park PreParea: 20- Apr -10 AIAIA)Ii IRS SINCV, I9IU #87101 SCOPE AND PRICING SHEETS PAGE 4 Printed: 41201103:18 PM M. Driver Newport Beach Civic Center and Park Pr,,Z; 20 -Apr -10 I L 17 V R 9 S i N C F, 1414 487101 SCOPE AND PRICING SHEETS 04107110 20- Apr -10 Budget# Description/Scope of Work Quantity Unit Cost/Unit Total Grand Total Construction & Final Clean-L 26,004 Mass Ex Sub Contractor proposal 1.0 Isurn 2,992,289 2,992,289 Additional dirt removal -per changes in 20,000.0 cuyds 7.07 141,400 drawings Potholing 1.0 Isum 15,180.00 15.180 Site clearing and grubbing included PAGE 5 Mass Ex Extra labor to sort through duration of the project- Recycle 120.0 mnhr 23.74 2,849 2,849 Alternates iik _sift Y:NiigiNN: �m ez Grand Total Construction waste manaL 2,849 Mass Ex Sub Contractor proposal 1.0 Isurn 2,992,289 2,992,289 Additional dirt removal -per changes in 20,000.0 cuyds 7.07 141,400 drawings Potholing 1.0 Isum 15,180.00 15.180 Site clearing and grubbing included PAGE 5 ♦ s Dy� Primed: 4B0/103:18 PM river e Newport Beach Civic Center and Park Pre,,d: 20- Apr -10 OhHIN.I.RS SI \I(: E. 1914 #87101 SCOPE AND PRICING SHEETS 04/07/10 20- Apr -10 PAGE 6 * Budget# Description /Scope of Work Quantity Unit Cost/Unit Total Remove concrete sidewalk included Tree protection included Remove V' ditch included Remove loading dock pavement included Remove MacArthur sidewalk and curb included Misc. Demolition included Rough grade staking from surveyors included Clean excavation to face of beams for shoring contractor included Original ground processing included Cut and compaction of onsite soils included Excavate and dispose of excess cut material included Excavate and stockpile for use as topsoil material gathered in designated areas as shown on plans included Material gathered in designated areas as shown on plans included Cut benches / ramps for shoring sub 4,000.0 cuyds 6.06 24,240 Remove ramps for shoring sub 1,333.3 cuyd 8.08 10,773 Rough grade building pad(s) to ± 0.10 ft. included Load, haul -off of drilling spoils 155.6 cuyd 22.00 3,422 Construction water meter 1.0 Isum 2,555.00 2,555 Additional topsoil handling 6.0 mnth 3,765.00 22,590 Traffic control plan 1.0 Isum 3,500.00 3,500 Flagmen, 2 each 2,078.4 mnhr 23.74 49,342 Grade / Gravel for trailers 4,500.0 sgft 4.00 18,000 Grade I Gravel for temporary parking 11,000.0 sgft 4.00 44,000 Street sweeper 320.0 mnhr 110.00 35,200 Additional Mobilization ! demobilization 1.0 Isum 4,500.00 4,500 3,366,992 * Alternates iol Grand Total Site Preparation/ Earthwork 3,366,99 122 PAGE 6 C.W. Driver Bill FIOPR8 91INCR 1919 04107110 Newport Beach Civic Center and Park SCOPE AND PRICING SHEETS pnnl�: Prepared; 4aOIN) 318 MI 20-Apr- 10 987101 20- Apr -10 Budget# Description/Scope of Work Quantity Unit Cost/Unit Total Mass Ex Allowance 32.0 points 387.10 12,387 12,387 Alternates Grand Total Temp Dewatering 12,387 Mass Ex Subcontractor Proposal 1.0 Isum 1,683,000 1,683,000 Shoring wall at the MacArthur / parking garage Engineering design of soldier pile wall included Coal tar epoxy-coated soldier piles included Double corrosion protected (DCP) tieback anchors included Wood Lagging to 4 feet below Top of Finished Slab included Nelson studs welded to soldier piles included Temporary cable handrail at top of soldier 613.0 Inft piles 45.00 27,585 Remove cable handrail 613.0 Inft 1.98 1,214 1,711,799 Alternates ... .... ..... .. Grand Total Earth Shores & Underpin 1,711,799 PAGE 7 C. Driver Newport Beach Civic Center and Park 13011, t) b. kS 8 1 N C H`,: 1914 SCOPE AND PRICING SHEETS 04/07/10 Prntd Pr,.& 420110 3:18 PM 20- Apr -10 #87101 20- Apr -10 * Budget# Description /Scope of Work Quantity Unit Cost /Unit Total +PLO 3RI0-W Mass Ex Stabilized construction entrance/exit with Culvert crossing included Install / remove rumble plates included Silt fence included Fiber rolls included Gravel back check dam included Geotextile mats included Sediment basins install and remove included Storm drain inlet protection included Earth dikes included Hydraulic mulch included Rip rap velocity dissipation included Terra Mulch with Guar Binder (Hydro seed) and basic erosion control seed mix included Place and maintain gravel bags around perimeter fence included Trash and debries guards 6.0 each 1,287.75 7,727 Run off control 7.0 month 3,777.00 26,439 Monthly visits included 34,166 * Alternates Y,r t tt R: k vim' „ < Grand Total Erosion Control 34,166 Mass Ex Allow to repair AC paving as needed 1.0 allow 15,207.00 15,207 PAGE 8 CA. Drivel ,n,ed: 20-Apr-10 PM #87101 [�.A� � \`) Newport Beach Civic Center and Park r.ep.rea: 20- Apr -10 8l,' I. I, f31? R S S I ti t; F; 1819 #87101 SCOPE AND PRICING SHEETS 04107/10 20- Apr -10 * Budget# Description /Scope of Work Quantity Unit Cost/Unit Total Alternates 15,207 Grand Total Asphaltic Paving 15,207 Mass Ex North Park Subcontractor proposal 1.0 Isum 97,077.00 97,077 Retaining wall, type A (next to pedestrian walk) -done during Mass EX 366.0 Inft Footing included Footing rebar included CIP Wall included Wall rebar included Subdrainage perforated pipe surrounded by drainrock and wrapped in geotextile fabric 366.0 Inft 42.00 15,372 Wall height correction from designer 732.0 sgft 38.00 27,816 140,265 Alternates .` - , I Grand Total Site Walls 140,265 Mass Ex Subcontaractor proposal 1.0 Isum 234,947.00 234,947 Install cleanout included PAGE 9 . NV. � CC NV r Drive 0G 111 1) FTId5 S I N C K 1911 04/07110 Newport Beach Civic Center and Park SCOPE AND PRICING SHEETS Printed: erep.red: 40- Apr180 PM 20- Apr -10 #87101 20- Apr -10 * Budget# Description /Scope of Work Quantity Unit Cost/Unit Total SD manhole included 18" SD included 6" Solid subdrain included 6" Perforated subdrain included CMP riser included Connect to (E) SD included 18" x 18" Tee included Connect to (E) SDMH included Connect to (E) catch basin included Headwall wl rip rap included 234,947 Alternates L .. .. I Grand Total Draina¢e 234,947 1 Mass Ex Fence at the retaining wall 133.0 Ink 177.42 23,596 23,596 Grand Total WrouLht Iron 11 23,596 1 Mass Ex Waterproofing at the shoring wall 22,000.0 sqk 9.60 211,176 Add for 2 layers of cement board 22,000.0 sqk 3.04 66,911 PAGE 10 C. W. Driver Newport Beach Civic Center and Park 11tI"I 1.1)R IS SI\;C:E 19111 SCOPE AND PRICING SHEETS 04/07/10 Printed: Prepared: 4/20/10 3:16 PM 20- Apr -10 #87101 * Budget# Description /Scope of Work Quantity Unit Cost/Unit Total Seal and reinforce all penetrations in waterproofing membrane 300.0 each 25.35 7,604 Detail at nelson studs 3,000.0 each 8.00 24,000 Scaffolding 1.0 Isum 15.000.00 15,000 North Park Waterproofing at the site retaining wall 3,555.0 sgft 11.00 39,105 363,795 Alternates „ I Grand Total Waterproofing 363,795 Mass Ex Time lapse photography 6.0 me 771.21 4,627 Alternates Grand Total Time Lapse Phol PAGE 11 4,627 4,627 1 I BASE BID Mm5 E And Hall off 2,790.000 2,922189 3,322,000 2974,238 3.149.00 ., s'„ "I drsqualHl d .e po .age dlsqualled paclogq.,_ dtquallfed 2 Prequalifed for Earrhwork as yes ym yes yes C.W. Driver yes yes no 3 Prequalifed for Shoring Wall (for ck combined paages) yet Po(ect: NPBCC SDBCONTRACTOR COMPAR15ON SPREADSHEET y¢s pRNLOLeS SINCE Im9 no yes 4 CA pcense current yes yes Prepared By: Rimma GurcH, run yes mumtvn 5 Per Plans yes yes ycz Daudi 22-APr-00 yes " 6 Acknowledge Addendum yes yes yes yes yes yes Earth Construction & Crew Inc' .' 'Slice Co., I.C. yes Southern' I' Sharma Dap, Inc: ' yes Tinker YWC [ern RIM' : , _ ,.Malcolm DNlling- 8 Prevailing Wage! yes Mining yes Yea yes yes California Cantm on. 9 Compliance with Proles Schedule yes yes ' Con'itr R rs,lnc' Co Inc: yes yes 10 Listed subs Grading ycz yes II Inzumnm mmplirs wide CWD requir yet Charles Poss Vince Olson yes Tins Hamch.k yet -, K nCutler Vip 1Pac.0 Alden Arc o 'NaNan ^De 1 ers :Pete Spomry 'NO Deacripnonl5copebfWoik (714) 8984326 (32 3) 86410 0 3 (949) 654 <60015 ":(949)5516655 (563)6913495 (409)628199910 (949) ^241 =8590 060)489 -0328 c(626)338-0035 1 I BASE BID 2,55).000 2,790.000 2,922189 3,322,000 2974,238 3.149.00 ., s'„ "I drsqualHl d .e po .age dlsqualled paclogq.,_ dtquallfed 2 Prequalifed for Earrhwork as yes ym yes yes yes yes yes no 3 Prequalifed for Shoring Wall (for ck combined paages) yet yes yes yes yes y¢s no no yes 4 CA pcense current yes yes yes yes run yes 5 Per Plans yes yes ycz yes yes yes 6 Acknowledge Addendum yes yes yes yes yes yes ) Bid bond included yes yet yes yes yes yes 8 Prevailing Wage! yes yes yes Yea yes yes 9 Compliance with Proles Schedule yes yes yes yes yes yes 10 Listed subs ycz yes II Inzumnm mmplirs wide CWD requir yet yes yes yes yes yet 12 er cy and multipied by 10.W0 I under parking uu Alternate Amount 1,890,000 70,000 1 $ 8,201 82.000 no dbnrge 70,000 82,000 799,639 3,404,000 ea, sun a o a' f C.WDri ,er Shoring Wall BUf LDRRS SHNOR 1019 Project: N PBCC Prepared By: Rimma Gutnik Date: 22- Apr -10 SUBCONTRACTOR COMPARISON SPREADSHEET Prin¢d: 9@/106.1 PM it DescriptionlScope of Work (qp I I BASE BID 1,584,700 1,683,000 1,863,700 2.299,500 2 Pre qualified 9 yes yes yes yes 3 CA License current yes yes yes yes 4 Per Plans and Specs yes yes yes yes 5 Acknowledge Addendum yes yes yes yes b Bid bond included yes yes yes yes 7 Prevailing Wage! yes yes yes yes 8 Compliance with Project Schedule P I yes yes yes yes 9 Listed subs yes yes yes yes 10 Insurance complies with CWD requirements yes yes yes yes II Design built pending confirmation Page 1 of 2 C.DriyeI Shoring Wall 'RUN LDTikS Sl YCE 1919 Project: NPBCC Prepared By: Rimma Gutnik Date: 22- Apr -10 SUBCONTRACTOR COMPARISON SPREADSHEET Rntm: 41WI0601 PM Page 2 of 2 UN Driver `omete Wall UU11,I)CR$ UNCH 111, Protect NPBCC Prepared By: Rim aGutnik Date: 22- Anr -10 1 I BASE 01D Cemen[C¢', Edda [ruRlon c COn truRlon vvm il[t Con[ C Inc CO rt Rleq yes CONSfRUC. yes yes yes Inc 3 Per Plans and Specs Co., Inc yes concrete yes yes 'TION yes 4 Acknowledge Addendum yes yes yes yes yes yes yes s aid bona mdnaea yes :COMPANY.: Yes Hansel Tato re RobeKMOOk Ck me Mae.fEFF Y. CORN! Yes StevetiPisBer Dave TCnnls Yes yes yes 2 Compliance win Prol¢[[ScM1¢dule _ yes yes yes i. I yes t r, E gs amed Descnpc orcl6topc4f WOrk (909)]500414 yes 1 (714 }5728100 _' 1626) 442A003113 (909)8686012 —, IRS 1)1743348 „(714)9313600 � )4)6433366 yes „- (ylq)894A00 1 I BASE 01D vvm 3 CA License coven[ yes yes yrs yes yes yes y¢s 3 Per Plans and Specs yes yes yes yes yes yes yes 4 Acknowledge Addendum yes yes yes yes yes yes yes s aid bona mdnaea yes y¢s Yes yes re yes yes Y. 6 Prereili.,W,.I Yes yes Yes Yes yes yes yes 2 Compliance win Prol¢[[ScM1¢dule y¢s yes yes yes yes yes yes 8 LMscl sub, yes yes yea yes yes yes yes 9 In--. complies wi[F CWDrequir men¢ yes yea yes yn. yes Yes Yes 10 >a9e 1 01 z C.WDriver concrete Wall RLU.UF,R651 �(:e 19iv Prajett NPBCC SUB[ONTRA TOR COMPARISON SPREADSHEET Prepared By: Rimma Gutnik P.�wa. mvmcmm Pea. ] 0l2 C.W. Driver Undeground Utilities H I.S1t. 13. @RS s NC, F. 191'} Project: NPBCC Prepared By: Rimma Gutnik Date: 22- Apr -10 42 10 5 :0 pM Page 1 of 1 City of Newport Beach BUDGET AMENDMENT 2009 -10 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates X Increase Expenditure Appropriations AND Transfer Budget Appropriations SOURCE: from existing budget appropriations from additional estimated revenues PX from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: NO. BA- 10BA -043 AMOUNT: $17,596,307.00 Increase in Budgetary Fund Balance X Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance To increase expenditure appropriations from the Civic Center Construction Fund unappropriated fund balance to cover costs associated with construction of the new Civic Center. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account 410 3605 REVENUE ESTIMATES (3601) Fund /Division Account EXPENDITURE APPROPRIATIONS (3603) Description Civic Center Construction Fund - Fund Balance Description Signed: GJ �/�/jri /jArl'" Fi I Approval: Administ Signed: Approval: City Manager Amount Debit Credit $17,596,307.00 * Automatic $17,596,307.00 ,+- a Date Date Signed: City Council Approval: City Clerk Date Description Division Number 7410 Civic Center Construction Account Number C1002009 New City Hall /Civic Center Division Number Account Number Division Number Account Number Division Number Account Number Signed: GJ �/�/jri /jArl'" Fi I Approval: Administ Signed: Approval: City Manager Amount Debit Credit $17,596,307.00 * Automatic $17,596,307.00 ,+- a Date Date Signed: City Council Approval: City Clerk Date CITY OF NEWPORT BEACH '#23- OFFICE OF THE CITY ATTORNEYy'Z1'lo DATE: April 27, 2010 TO: Honorable Mayor and Members of the City Council FROM: Office of the City Attorney Leonie Mulvihill, Acting City Attorney Public Works Department Stephen Badum, Director MATTER: Civic Center: CW Driver Agreement [A09- 00022] RE: Agenda Item 23 — Minor Revisions to Construction Manager at Risk Contract with C.W. Driver The Office of the City Attorney and City staff request a modification to the language of the Construction Manager at Risk Contract ( "Contract ") included in Agenda Item 23. We believe that these modifications are necessitated by risk management concerns and also are the result of a lower Guaranteed Maximum Price ( "GMP "). Specifically, the revised GMP is $111,680 less than the GMP contained in the original Contract distributed to the City Council in the Agenda packet. A revised Exhibit A to the Contract is attached as Attachment 1 and reflects the revised lower GMP. A redlined copy of the revised sections to the Contract is attached as Attachment 2 for the City Council's consideration. A final copy of the revised sections to the Contract is attached as Attachment 3. We request and recommend that the City Council approve the revised sections and Exhibit A to the Contract included as Attachments 1 and 3 in place of those specific sections and Exhibit A contained in the original Contract distributed as part of the Agenda packet. Submitted : '-feoA Mulvihill Acting City Attorney G.W. Driver BCII,DERS SINCE. 1919 April 27, 2010 Mr. Steve G. Badum City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92658 -8915 EXHIBIT A Re: Newport Beach Civic Center and Park Project Guaranteed Maximum Price (GMP) Mass Excavation and Shoring Construction Phase I C.W. Driver Project Basic Services Dear Steve: 15615 Alton Parkway Suite 150 Irvine, CA 92618 Fax 949.261.5167 Telephone 949.261.5 100 C. W. Driver is pleased to submit our Guaranteed Maximum Price Proposal (GMP) for. a) The Mass Excavation and Shoring Phase of the Newport Beach Civic Center and Park Project b) C.W. Driver's Basic Services for the Newport Beach Civic Center and Park Project for on- site project staff and support facilities for all project construction phases as per current scope of work identified in the 100% DD set of design documents prepared by the architect, Bohlin, Cywinski, Jackson (BCJ) dated February 18, 2010 and per C.W. Driver's attached construction schedule and For added clarification and detail of our proposed services, please see attached documents. C.W. Driver is very excited about the opportunity to continue to work with the City of Newport Beach and look forward to a very successful project. The Total Phase I Proposal for these services is as follows: 14gN DeSCnption 1 C.W. Driver Basic Services for Civic Center & Park Project GMP 7,169,255 II Mass Excavation and Shoring Construction Phase GMP* 6,620,410 Subtotal 13,789,665 III General Liability Insurance (0.91 %) 125,486 IV Direct Expenses Allowance for Project Bond (1.0%) 137,897 V Construction Management Fee (3.25 %) 452,646 TOTAL PHASE I $14,505,694 - mauaes t,ontractor t,onstruction t_onungency Los Angeles Irvine Onurio San Diego Page 1 of 3 AMA 1 Lkense No. 102 Ill' =z.� :. 1 • 1 . S! 1 0Ir•.!1-J The GMP for this work is based upon the scope of work identified in the Mass Excavation Bid Set of Drawings by Bohlin, Cywinski, Jackson (BCJ) dated March 17, 2010 including their Addendum #I for this package issued on March 31, 2010. (Please see attached drawing list.) C.W. Driver's Project Basic Services C.W. Driver's Basic Services Proposal of $7,169,255 is a Guaranteed Maximum Price (GMP) for Basic Services labor and support services through the completion of the construction of the Newport Beach Civic Center Project as per CWD's attached construction schedule and for the scope of work identified in BCJ's 10090 Design Development Set of Project Documents and Specifications dated February 18, 2010. Please see the attached C.W. Driver attachments for a detailed breakdown of the services included in this proposal. Basic Services Labor = $5,648,095 Basic Support Services = $1.521.160 Subtotal CWD Basic Services* _ $7,169,255 *Excludes Project Liability Insurance and Project Fee. Please see breakdown on the front of this proposal for these costs. Exclusions: a. Program Management and Preconstruction Services. (See separate CWD Proposal) b. Monthly Site Utility Consumption Including Site Offices (installation excepted) c. Project Night Watchman d. Materials and Soils Testing and Inspection e. Shuttle Services for Trades and Temporary Parking expenses f Owner Scope Changes g. Unknown Subsurface Conditions h. Building Permit Fees k Utility Company and Connection Fees j. Subsequent Construction Phases and Scope of Work not Addressed by the Mass Excavation Design Package k Three Upper Most Concrete Retaining Walls at the North Park (only lower wall included) I. Temporary Access Roads for Emergency Use Vehicles Please know that we are committed to the total success of this project and look forward to continuing our relationship with the City of Newport Beach and the Design Teams. Sincerely, Bruce Curry Project Executive C" Page 2of3 I.ICF.NSL Nu lo! C: Darren Mann, CWD Andy Feth, CWD Robert Shafer, CWD William Hahn, CWD Attachments: b Mass Excavation Drawing List b Mass Excavation Phase I Trade Package Summary * Basic Services GCM List b Basic Services Labor Matrix b Construction Schedule Project Rate Sheet Cv V L Page 3 of 3 LICENSE N. 10: ATTACHMENT 2 Revised Sections to Constriction Manager at Risk Contract In Redlined Form 6.1.1 As of the Effective Date, the City and the CM agree that the Guaranteed Maximum Price is fourteen million, five six hundred seveateea five thousand and six #wee hundred ninety -four seveFaty feur dollars ($14.505,694 �), which is inclusive of the Cost of the Project as respects the bid package(s) identified in Exhibit B, the Fee for Basic Services, the Direct Expenses and the CM Fee of 3.25 %. CM's Basic Services labor rates are understood and agreed to be as detailed in Exhibit A. 7.1 Insurance Without limiting the CM's indemnification of the City, and prior to commencement of work, the CM shall obtain, provide and maintain as a cost of the work during the term of the Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to the City. It is understood and agreed that the cost of such liability insurance cost shall be deemed to be 0.91 % of the total of the Cost of the Work and Basic Services. coverage normally orovided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any tvoe. Insurance coverage and limits provided by the CM and Contractor and available or applicable to this Agreement are intended to apply to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to City or its operations limits the application of such insurance coverage. The City may elect to implement an Owner Controlled Insurance Program (OCIP). An OCIP is a series of insurance policies issued by one or more companies to cover the purchase certain insurance coverages covering on -site construction activities for enrolled and eligible Contractors which may include workers' compensation, general liability, and excess liability coverage. All other insurance terms and conditions referenced below and not amended in any addendum to this Agreement remain. In the event that the City elects to after the insurance requirements set forth in this Section 7.1. the CM shall be entitled to an adjustment to the Guaranteed Maximum Price in accordance with Section 6.1.12. 7.1.4(b) Coverage Requirements General Liability Coverage. The CM shall maintain commercial general liability insurance in an amount not less than $25,000,000 per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under the Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. ATTACHMENT Revised Sections to Constriction Manager at Risk Contract in Final Form 6.1.1 As of the Effective Date, the City and the CM agree that the Guaranteed Maximum Price is fourteen million, five hundred five thousand and six hundred ninety-four dollars ($14,505,694), which is inclusive of the Cost of the Project as respects the bid package(s) identified in Exhibit B, the Fee for Basic Services, the Direct Expenses and the CM Fee of 3.25 %. CM's Basic Services labor rates are understood and agreed to be as detailed in Exhibit A. 7.1 Insurance Without limiting the CM's indemnification of the City, and prior to commencement of work, the CM shall obtain, provide and maintain as a cost of the work during the term of the Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to the City. It is understood and agreed that the cost of such liability insurance cost shall be deemed to be 0.91 % of the total of the Cost of the Work and Basic Services. Requirements of specific coverage features or limits contained in this Article are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. Insurance coverage and limits provided by the CM and Contractor and available or applicable to this Agreement are intended to apply to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to City or its operations limits the application of such insurance coverage. The City may elect to implement an Owner Controlled Insurance Program,(OCIP). An OCIP is a series of insurance policies issued by one or more companies to cover the enrolled Contractor and eligible subcontractors of all tiers for a given contract. If the City elects to implement an OCIP, it will issue an addendum to this Agreement and will purchase certain insurance coverages covering on -site construction activities for enrolled and eligible Contractors which may include workers' compensation, general liability, and excess liability coverage. All other insurance terns and conditions referenced below and not amended in any addendum to this Agreement remain. In the event that the City elects to after the insurance requirements set forth in this Section 7.1, the CM shall be entitled to an adjustment to the Guaranteed Maximum Price in accordance with Section 6.1.12. 7.1.4(b) Coverage Requirements General Liability Coverage. The CM shall maintain commercial general liability insurance in an amount not less than $25,000,000 per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under the Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. Newport Beach Civic Center Cost Timeline I00R 1[Ke) 2010 2011 2012 ... ..o iw w i✓, sryi w. ib w .w ey s.oi w+ .e .,� D4*n Canp4e0at I 5250.000 Pre - Design - Concept Refinement Schematic Design & Design Devefopmem. SD & DD Construction Documents. CD conacunion support. SD Plolen Management Pre - Design Project Management SO & DD Pro1M Management - CO Basic Sen4Ces /General corbihons Dnen Papemes Construction Mngt Pee (profit & werheadl (3.25 %) GMP Phase i - Mass f.ca ation & Shoring Wall GMP Phase 2 - Design assist /9udd Farling Stiu<twe GMP Phase3 Cdy Nall, library &Palk library tapansion City Nall Budding fixtures, turnnhmp, & t0uipment IfP &E) — Alt al - San Miguel Ped Oeeraospng Rased upon Schematic Design Rtimete m 5105,000.000 lot Construction S rd I u� u 5, o bi b �i i Vt jr2I -23 q-71-110 Wrtect [omervathe Projenbn Optlmilk 0b Uiniate east case d0% C0n0n84rs7 )7%) Unused, Oast cast ]5 %City /25 %CWD $14,442,315 $435,764 $14,442,315 64151764 $14.442,31S 6435,764 $31" 11 S 1",611 53,106.611 $105,0001000 $94.500,000 $89,S38,7SO $2.600.000 52,600,000 $2.000,000 $125,964,690 $115,404,690 $110,443,440 $2.SOO.00O 51000,000 $2.100.000 $1 000 $2.500.000 51,000,001) 5129,404,690 $118,904.690 11 $113,943,440