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HomeMy WebLinkAboutR9- Economic Development ECO JMIC DEVELOPMENT AG_ ICY OF THE CITY OF SAN BERNARDINO REQUEST FOR COMMISSION/COUNCIL ACTION From: TIMOTHY C. STEINHAUS Subject: CONSTRUCTION Agency Administrator MANAGEMENT SERVICES FOR MULTI-USE MINOR LEAGUE STADIUM Date: March 1, 1995 --------------------------------------------------------------------------------------------------------------------------------------- Synopsis of Previous Commission/Council/Committee Action(s): The Commission has discussed during several previous meetings a proposed baseball stadium for San Bernardino. These discussions resulted in the approval of the issuance of an RFP on February 21, 1994. On April 4, 1994,the Community Development Commission authorized staff to retain KPMG Peat Marwick to conduct a financial feasibility study for a multi-use baseball stadium. On July 18, 1994,the Community Development Commission authorized staff to prepare a financing plan and prepare alternate stadium uses. Subsequently,on September 6, 1994,the Community Development Commission approved a financing plan for a new baseball stadium. On October 3, 1994,the Mayor and Common Council approved a lease agreement with the Spirit for the new stadium. On October 17, 1994, the Community Development Commission approved the selection of HOK Sports to provide design services for the new stadium. On December 5, 1994,the Community Development Commission authorized a contract for the preparation of an EIR. On February 20, 1995,the Community Development Commission continued this item to March 6, 1995. --------------------------------------------------------------------------------------------------------------------------------------- Recommended Motion(s): (Community Development Commission) MOTION: That the Community Development Commission authorize the Acting Director to develop and execute an agreement substantially in the form as attached with Turner Construction Company and the San Bernardino Spirit Baseball Team in an amount not to exceed 8% of the total constructiop budget plus a 1.5%contingency incentive for construction management services for the San�B ardino multi-use sports stadium. f YOR'S OFFICE TIMOTHY C.STEINHAUS Agency Administrator -------------------------------------------------------------------------------------------------------------------------------------- Contact Person(s): Timothy C. Steinhaus/Ray Salvador Phone: 5081 Project Area(s): All Ward(s): 1 -7 Supporting Data Attached: Staff Report: FUNDING REQUIREMENTS: Amount: Source: Tax Increment Budget Authority: --------------------------------------------------------------------------------------------------------------------------------------- Commission/Council Notes: --------------------------------------------------------------------------------- TCS:SMM:pc:tumer.cdc COMMISSION MEETING AGENDA Meeting Date: 03/0/6/1995 I_ ' q Agenda Item NumlSer: EC lOMIC DEVELOPMENT AGE. _'Y OF THE CITY OF SAN BERNARDINO STAFF REPORT ----------------------------------------------------------------------------------------------------------------------- Construction Management Multi-Use Minor League Baseball Stadium Staff seeks authorization to enter into an agreement for Construction Management services for the proposed Multi-Use Minor League Stadium. BACKGROUND Agency staff and HOK Sport(architect)have been proceeding with preliminary design for the proposed 5,000 seat multi-use stadium to be located in the Central City South Project Area. Throughout this preliminary design phase,the Agency and architect have been working closely with team representatives who have prior experience developing and constructing minor league stadiums in San Antonio and Colorado Springs. Specifically, the Colorado Springs facility is similar in size and scope. The team,through a competitive Request for Proposals (RFP)process has enlisted the services of an experienced sports facility construction manager to help facilitate the design and construction costs estimating process. Based upon the demonstrated experience and qualifications of the team and its designated construction manager,staff proposes to enter into an agreement with the team and Turner Construction to provide construction management services for the stadium project. As co-construction managers,the team and Turner Construction agree to assist the Agency in planning,bidding and monitoring the construction of the stadium and ensuring conformity with the construction budget. The Agency's standard bid process and MBE/WBE/DVBE requirements will be utilized for all construction activity. During the design and construction planning phase the co-construction managers recognize that the Agency must have viable cost estimates based upon recent construction trends in order to move this project forward. The scope of services will be provided by the team and Turner Construction at a cost not to exceed 8%of the total construction budget. These funds are for the construction manager's direct costs and appropriate fees. The team agrees to provide contract administration and supervision of the construction manager at no cost to the Agency. In an effort to keep the project within budget and time schedules,it is proposed that a 1.5%contingency incentive be offered to the construction management firm. This contingency provides an incentive that the cost does not exceed the estimated budget and ensures the completion within the scheduled time frame. Additionally, a fee readjustment will be made in the form of a$25,000 penalty that could be increased by the construction manager if the budget were exceeded. RECOMMENDATION In order to maintain the proposed schedule for partial completion of the stadium allowing use by the Spirit at mid- season this year,the Agency must take an aggressive construction approach which will rely heavily on concurrent bidding of various phases of stadium construction. Furthermore,Agency staff is proceeding with this project under the direction of the Chairman and the Community Development Commission to keep the construction of the multi-use stadium within the proposed budget. The prior experience of the Team and its construction manager would be a useful asset in moving the stadium project forward. Staff recommends adoption of the form motion. TIMOTHY C.STEINHAUS,Agency Administrator Economic Development Agency --------------------------------------------------------------------------------- TCS:SMM:pc:turner.cdc COMMISSION MEETING AGENDA Meeting Date: 03/06/1995 Agenda Item Number: BACKGROUND At the 20 February 1995 meeting of the Community Development Commission, several Commission Members asked for clarification on the following issues: 1. How much of a delay would the Multi-Use Stadium Project be subject to if a Construction Manager is not used. 2. Does Turner Construction employ minorities and how will Turner Construction ensure that the Agency's M/WBE goals are met? 3. What has been the Agency's experience with Construction Management and affirmative action goals. In response to the questions outlined above, the following information is provided. 1. The need for a construction manager is predicated upon the full completion of plans and specifications for the project. Without complete plans and specifications, construction of the project must be bid out in phases. The plans and specifications for the first critical phase are scheduled to be completed by March 13, 1995. The complete plans and specifications are scheduled to be ready by May 1, 1995. Since construction cannot begin prior to completion of the EIR process in April, the effective delay is about one month. 2. See Attachment "B". 3. See Attachment "C". ATTACHMENT "A" Staff has reviewed Turner Construction qualifications and affirmative action plans as well as performance reports from recent major projects completed by Turner Construction which exceeds Minority/Woman Business Enterprise requirements. ATTACHMENT "B" Turner Construction C pany D (N SOUTH COAST METRO CL_.4 FER 575 Anton Boulevard, Suite 750 Costa Mesa, California 92626 FEB Z 7 1995 Telephone(714)557-0404 OFFICE OF THE MAYOR February 23, 1995 TIME: Turner Mayor Tom Minor CITY OF SAN BERNARDINO 300 North "D" Street 6th Floor San Bernardino, California 92418-0001 RE: San Bernardino Stadium Construction Management Services Dear Mayor Minor: In response to questions raised at last Monday's council meeting, I wanted to take the time to express Turner's commitment to Affirmative Action and Equal Opportunity to ensure participation by minorities and women in contracting and employment. On your Stadium Project, Turner has committed to exceed the M/WBE participation goals established by the City. Our efforts will be focused on awarding contracts to M/WBE firms as primary subcontractors and establishing M/WBE participation goals for contracts awarded to non-minority contractors. We will establish a formal program tailored specifically to this project based on successful public M/WBE programs administered by Turner in the past. A major component of this program will be outreach activities to stimulate participation by NtA BE firms. Such activities will include local business identification, direct mailings and follow-up phone calls, seminars to acquaint firms to the project, and assisting to develop Mentor-Prot6g6 relationships between primary subcontractors and M/WBE firms. We can make this commitment, and have the City of San Bernardino rely on it, based upon our record of accomplishment in this area. Hilton Smith, Corporate Vice President and Manager of Turner's Equal Employment Opportunity Program, has led our efforts in developing an award winning program which includes both M/WBE subcontracting and in-house direct hiring. This has resulted in an increase in the number of minorities in key management positions with the Company. Attached you will find a listing of just a few of the awards our program has received. In Southern California we have made a significant positive impact on the minority community through our efforts. Our involvement includes: - Youthforce 2000, an educational program for minorities - Adopt-A-School, continuous involvement - Inroads Minority Co-Op Program - Rebuild L.A. Program, assistance to minority contractors ATTACHMENT B turner Mayor Tom Minor February 23, 1995 Page Two Through our recruiting efforts in 1994, 18.5% of the individuals we interviewed were minorities. We are proud that minorities represented 24.3% of our new hires. They will now have the opportunity for promotion and advancement through our diligent training and evaluation programs. Our record for M/WBE participation in Southern California has also been outstanding as evidenced by the following recent projects. Pershing Square Park Renovation - $8.8 Million Goals - Overall - 20% Achieved - Overall - 57.6% MBE - 15% MBE - 46.6% WBE - 5% WBE - 11.0% Kaiser Riverside MOB - $19.5 Million Goals - Overall - 16.6% Achieved - Overall - 18.0% MCA/Universal City Plaza Building 488 - $25.4 Million Goals - Overall - 10% Achieved - Overall - 43.79% MBE - 42.74% WBE - 1.05% Southern California Gas Center - $155.6 Million Goals - Overall - 15% Achieved - Overall - 17.8% MBE - 10% MBE - 12.7% WBE - 5% WBE - 5.1% As a final note, Turner has been assisting Kaiser in Southern California in the development of their M/WBE contracting program for construction contracts. Kaiser reached out to Turner based upon our proactive approach to M/WBE participation on a voluntary basis. Please feel free to contact Elizabeth Garcia at (818) 405-5024 to discuss our involvement. Turner Mayor Tom Minor February 23, 1995 Page Three We are proud of our Affirmative Action/Equal Opportunity program and accomplishments to date. We again confirm our commitment to the City of San Bernardino to a successful M/WBE program if we are awarded Construction Management services on the Stadium Project. Very truly yours, TURNER CONSTRUCTION COMPANY Edward D. Quimby Vice President and Territory General Manager EDQ/plz KNOKDOC Attachments (2) Turner I E.E.O. Awards NAACP Corporate Recognition Award, June 199' to the City of Dallas - May 18, 1993 The City of Dallas - Turner Construction Company Day, May 18, 1993 - recognition of successful Construction Management Seminar Proclamation of the City of Cleveland - recognizes April 21, 1993 as Turner Construction Day (E.E.O. Program). Proclamation of the State of Ohio - recognizes April 21, 1993 for Turner's Equal Employment Opportunity Program's 25th Anniversary. National Association of Minority Contractors Corporate Award, 1992 NAACP Corporate Recognition Award, June 1992 Black Business Association - Los Angeles, California Corporation of the Year Award, 1991 Harlem Business Alliance Award (New York) - Outstanding Service Award Proclamation of the City of New York- recognizes June 13, 1990 as National Equal Opportunity Employment Conference Day, Mayor David Dinkins Exemplary Voluntary Effort(EVE) Award from the U.S. Department of Labor, Office of Federal Contractor Compliance Program, October 29, 1990 Minority Business Development Award from Small Business Administration, U.S. Department of Commerce, November, 1990 Black Business Association - Los Angeles, California Corporation of the Year Award, 1990 The U.S. Small Business Administration 1989 NY District Award- Hilton Smith Westchester,NY Minority Contractors Association - Corporation of the Year Award, 1989 The Association of Minority Enterprises - New York - Contractor of the Year Award, 1989 Westchester, NY Minority Contractors Association - Corporation of the Year Award, 1988 The City of Baltimore - Turner Construction Company Day, April 28, 1988 Turnerl E.E.O. Awards Page 2 The State of New York - Turner Construction Company/Hilton O. Smith Dav, May 3, 1988 U.S. Small Business Administration 1987 Minority Advocate of the Year. 1988 Temple University Hospital Project and Nichols Committee Affirmative Action Award, 1988 Black Contractors United - Chicago, Illinois 1988 Corporate Affirmative Action Award, 1988 Hispanic Business Association Padrino Award National Association of Minority Contractors Appreciation Award, 1987 Congressional Proclamation for Corporate Affirmative Action Leadership, 1987 Norfolk State University - Corporate Distinguished Service Award, 1987 The U.S. Department of Commerce - Corporation of the Year Award The Ohio Governor's Award, Cleveland Office, 1986 The U. S. Small Business Administration Advocate Award The Chicago Economic Development Corporation Award The City of Cleveland - Contractor of the Year Award, 1986 The U.S. Congressional Salute (February 25, 1985 Congressional Record Publications) Spanish American Construction Industry Association- Contractor of the Year Award, Cleveland Office, 1985 Black Contractors United - Affirmative Action Officer of the Year Award/Hilton Smith Meritorious Service Award. City of Jersey City, New Jersey The National Association of Minority Contractors - Corporation of the Year Award (1983-1984) Proclamation of the City of New York- Mayor Edward I. Koch Philadelphia Urban Coalition Recognition Award The Minority Contractors Association of Detroit, MI Award, 1983 Turnerl E.E.O. Awards . Page 3 The Cleveland Urban League - Corporation of the Year Award. 1975 The Bay Area Contractor Association Award (San Francisco, CA), 1972 New York Citv Chamber of Commerce Corporate Affirmative Action Award State of New York Small Business Advocate Proclamation Turner ACTIVE MBEIWBE INVOL VEIIIENT I. MBE/WBE Outreach Effort: The Minority/Woman Business Enterprise program is an integral part of the overall purchasing effort of Turner Construction. Extensive involvement in the MBE/WBE community is demonstrated by the following: * Corporate Membership in the Black Business Association of Los Angeles * Corporate Membership in the Asian Business Association * Corporate Membership in the Latin Business Association * Corporate Membership in the National Association of Minority Contractors * Corporate Advisory Board Member of the Black Business Association and the Asian Business Association * Recipient of the Black Business Association of Los Angeles' Majority Construction Corporation Award for 1990 presented to the majority corporation that has demonstrated the highest level of responsiveness to minority business enterprises in the construction industry. Nominee 1988 and 1989. * Turner's MBEAWBE Administrator presented the Black Business Association's 1989 President's Award for "exceptional" support of the Black Business Association and its members. * The MBE/WBE Administrator serves as a member of the Advisory Board of the UCLA Graduate School of Management's Graduate Certificate Program for Construction Contractors. Seven of Turner's MBE/WBE subcontractors participated in the first class. * Active involvement with over thirty-five organizations representing MBE/WBE firms. Turner has a close working relationship with the staff of State and Local government MBE/WBE officers throughout California. Turner ACTIVE MBFJWBE INVOLVEMENT(Continued) II. MBE/WBE Program Design and Implementation: Turner Construction Company implements an ongoing MBE/WBE program that addresses four major components of a successful program: goal setting, certification, contract award and contract monitoring. A few of the significant features of our program are: * An up-to-date, comprehensive MBE/WBE Source List providing to our staff and our subcontractors, information on the status of the firm's MBE/WBE certification, collective bargaining agreements and prequalification. * Standardized bid specification document containing a clearly written, easy understanding of the MBE/WBE requirements of the contract. * Program procedures for meeting goals at both the first-tier and second-tier subcontractor levels. * Innovative and creative approaches such as "Mentor- Protege Contract Guidelines" designed to ensure that MBE/WBE firms have an opportunity to participate. * Ongoing MBE/WBE Status Reports to the Owner of a project. * Additional outreach to the MBE/WBE community through participation in the MBE/WBE Trade Fairs, Conferences and Seminars. * Specially designed brochures, information cards and advertising copy distributed throughout California aimed at attracting MBE/WBE contractors and vendors. The Agency has met the City's goal of 15% Minority Business Enterprise and 5% Woman Business Enterprise on the Central Police Facility utilizing construction management. Staff is confident the same goals can be achieved on the Baseball Stadium based on the Agency's and Turner Construction's track record, with the experience gained from the Police Station utilizing construction management. Staff is comfortable with this method of project construction. ATTACHMENT "C" DRAFT CONSTRUCTION MANAGEMENT AGREEMENT THIS AGREEMENT for Construction Management ("Agreement") is made and entered into this_day of March, 1995 by and between the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, ("Agency"), TURNER CONSTRUCTION COMPANY, a California corporation ("Construction Manager"), and the SAN BERNARDINO SPIRIT PROFESSIONAL BASEBALL TEAM, ("Team"). WHEREAS, Agency is the owner of certain real property located in the City of San Bernardino and intends to acquire additional property, as necessary (the "Site") and described in the "Legal Description" attached hereto as Exhibit "A" and incorporated herein by this reference. WHEREAS, Agency proposes to construct a sports stadium (the "Stadium") on the Site which shall be operated by the City of San Bernardino ("City") as a multipurpose municipal facility upon completion of construction of the Stadium. WHEREAS, Agency desires to retain Construction Manager to provide construction project management services for construction of the Stadium pursuant to plans and specifications which shall be approved by the Department of Planning and Building Services of the City prior to construction ("Construction Plans"). -1- WHEREAS,pursuant to Government Code Section 4529.5, Construction Manager has represented to Agency that it has the knowledge, skills, resources, and experience qualifying Construction Manager to provide the professional services described herein. WHEREAS, Construction Manager agrees to manage and supervise all trade contractors hired by Agency to construct the Stadium in accordance with the Construction Plans. WHEREAS, Team desires to play its regular season and all play off and championship California League games at the Stadium and has agreed to enter into a ten (10) year Stadium lease with City once construction of the Stadium is complete. WHEREAS, because the Stadium shall be designed specifically for use by Team and the design and construction of Stadium is unique, Agency desires to retain Team to ensure its availability to consult with Agency and Construction Manager on design and construction of the Stadium. WHEREAS, Team acted as developer for construction of the Skysox Stadium located in Colorado Springs, Colorado and provided its expertise to various entities in construction of the Municipal Baseball Stadium located in San Antonio, Texas. -2- NOW THEREFORE, AGENCY, CONSTRUCTION MANAGER, and TEAM mutually agree as follows: 1. SCOPE OF WORK. Agency hereby retains Construction Manager to provide the construction management services described in the Scope of Work attached hereto as Exhibit "B" and incorporated herein by this reference for construction of the Stadium. Construction Manager agrees to perform such professional services which are referred to herein as "services." 2. ADDITIONAL SERVICES OF CONSTRUCTION MANAGER. Agency may request Construction Manager to provide additional services not provided in the Scope of Work (Exhibit "B"). Prior to commencement of such additional services, the exact nature of the services and cost to the Agency shall be set forth in writing in an agreement between Agency and Construction Manager. 3. OBLIGATIONS OF AGENCY. At its own cost and expense, Agency shall perform the following obligations: a. Provide information regarding requirements for construction of the Stadium. -3- b. Designate a representative who has authority to approve construction budgets and change orders necessitated by a change in the scope of construction ("Contract Officer"). C. Retain an architect to prepare the Construction Plans ("Architect"), pursuant to an architectural contract which shall be provided to Construction Manager. d. Provide necessary surveys describing the physical characteristics of the Site, soil reports, subsurface investigations, utility locations, and a legal description of the Site. e. Obtain and pay for necessary approvals, easements, assessments, and charges required for construction, use, and occupancy of the Stadium by City as a multipurpose municipal facility. f. Provide legal services necessary for obtaining the items listed in Section 3.e. g. Provide copies of drawings and specifications necessary for execution of construction work. h. Provide insurance required pursuant to Section 11.4 and 11.5. -4- L Provide written notice to Construction Manager when Agency becomes aware of any defect in construction of the Stadium or nonconformity with the Construction Plans. j. Prior to commencing construction, furnish reasonable evidence satisfactory to Construction Manager that sufficient funds are available and committed to complete construction the Stadium. Unless satisfactory evidence is furnished, Construction Manager shall not be required to commence construction. 4. OBLIGATIONS OF TEAM. Team shall not have any obligations under this Agreement other than to designate a representative or representatives who shall be available to Agency and Construction Manager to: (i) approve and make recommendations on the Construction Plans; (ii) assist Architect and Construction Manager in designing concession areas, and; (iii) attend meetings scheduled by Agency or Construction Manager to jointly discuss matters relating to construction of the Stadium. 5. TRADE CONTRACTS. Construction of the Stadium shall be performed by trade contractors. Trade contracts shall be executed between Agency and each trade contractor on terms consistent with accepted bids. 5.1 Bid Procedure. Construction Manager shall develop bid specifications and assist Agency in requesting and receiving bids from trade contractors. -5- Pursuant to California Public Contract Code Section 20688.2, at least three (3) bids shall be obtained for each portion of construction of the Stadium to be performed by trade contractors. Trade contracts shall be awarded to lowest responsible bidders who meet the requirements established by Agency under its Minority and Women Business Enterprise Program. Trade contracts shall be awarded by Agency after all bids are reviewed by Agency and Construction Manager. Trade contractors shall receive the general prevailing rate of wages for their work in accordance with California Labor Code Section 1771. 5.2 Form and Content of Trade Contracts. Agency and Construction Manager shall jointly develop an acceptable form for trade contracts. Trade contracts shall include a provision authorizing Construction Manager to coordinate the work of all trade contractors and requiring trade contractors to provide documentation deemed necessary by Construction Manager for proper management and administration of construction pursuant to the Scope of Work (Exhibit "B"). 6. SCHEDULE OF PERFORMANCE. All services rendered pursuant to this Agreement shall be performed within the time periods established in the Schedule of Performance (Exhibit "C"). Extensions to the time periods specified in the Schedule of Performance may be approved in writing by Agency. The Contract Officer is authorized to approve extensions of time relating to the Schedule of Performance. -6- 7. FEES AND PAYMENTS. 7.1 Construction Manager . Agency shall compensate Construction Manager a fee which shall not exceed SIXTEEN THOUSAND DOLLARS ($16,000) for services rendered during the design phase as described in the Scope of Work (Exhibit "B"). Fees for design services shall be paid on a monthly basis in equal proportion, based on the scheduled design phase time outlined in the Schedule of Performance (Exhibit "C"). Agency shall compensate Construction Manager a fee which shall not exceed SEVEN HUNDRED THIRTY ONE THOUSAND FIVE HUNDRED DOLLARS ($731,500) for services rendered during the Construction Phase as described in the Scope of Work (Exhibit "B"). Fees shall be paid on a monthly basis in equal proportions based on the scheduled construction phase outlined in the Schedule of Performance (Exhibit "C"). Construction Manager's fee shall include salaries or other compensation of the employees of Construction Manager who are performing services pursuant to this Agreement. As an incentive to Construction Manager to render its services in accordance with the approved budget of EIGHT MILLION TWO HUNDRED THOUSAND DOLLARS ($8,200,000), as described in paragraph 3 of the design phase of the Scope of Work (Exhibit "B"), Agency has established a contingency fee of ONE HUNDRED TWENTY-FIVE -7- THOUSAND DOLLARS ($125,000). Construction Manager may receive a fee, in addition to the fee for services rendered by Construction Manager ("additional fee"), if Construction Manager completes construction of the Stadium within the approved budget. Agency shall compensate Construction Manager an additional fee equal to fifty percent (50%) of the balance of the contingency fee remaining on the date when services rendered herein have been completed. The "additional fee" shall not exceed SIXTY-TWO THOUSAND FIVE HUNDRED DOLLARS ($62,500). If Construction Manager exceeds the approved budget of EIGHT MILLION TWO HUNDRED THOUSAND DOLLARS ($8,200,000), Agency shall reduce Construction Manager's fee by the exact dollar amount of the additional work exceeding EIGHT MILLION TWO HUNDRED THOUSAND DOLLARS ($8,200,000). Such reduction in Construction Manager's fee shall not exceed TWENTY-FIVE THOUSAND DOLLARS ($25,000). 7.2 No Fee To Team. Team shall not receive compensation of any kind from Agency or Construction Manager for services rendered pursuant to this Agreement. 8. REIMBURSABLE EXPENSES. In addition to the Construction Manager's fee referenced above, Agency shall reimburse Construction Manager at actual cost for the items listed in Exhibit "D". The total cost for reimbursable expenses shall not exceed ONE HUNDRED FIVE THOUSAND DOLLARS ($105,000). Costs for reimbursable expenses in -8- excess of the total cost described herein for such expenses shall be specifically authorized by a prior written change order executed by Construction Manager and Agency. 9. METHOD OF PAYMENT TO CONSTRUCTION MANAGER. Within thirty (30) days after the last day of each month which services have been rendered, as described in the Scope of Work (Exhibit "B"), Construction Manager shall submit an invoice to Agency stating the amounts incurred for reimbursable expenses and the amount of the fee due to Construction Manager pursuant to Section 7.1. Payment of the invoice shall be made after acceptance and approval by Agency within thirty (30) days of receipt of the invoice in accordance with the standard accounts payable system of Agency. 10. INDEMNITY. 10.1 Construction Manager. Construction Manager shall defend, indemnify, and hold harmless Agency, its officers, and employees from and against all liability, claims or costs, including attorneys' fees, for injury of any type claimed as a result of the acts or omissions of Construction Manager, its officers, employees and agents arising from or related to the Construction Manager's performance of Construction Manager under this Agreement. 10.2 Team. Team shall defend, indemnify, and hold harmless the Agency, its officers and employees, from and against any and all liability, claims or costs, including attorneys' fees for injury of any type claimed as a result of the acts or omissions of Team, its -9- pfficers, employees, and agents arising from or related to the performance of Team under this Agreement. 10.3 Trade Contractors. All contracts between Agency and trade contractors shall include a provision requiring the trade contractor to defend, indemnify, and hold harmless Agency, Construction Manager, and Team from and against all liability, claims or costs, including attorneys fees, for injury of any type claimed as a result of acts or omissions of the trade contractor, its officers, employees, and agents arising from or related to the performance of trade contractor's under an agreement with Agency pursuant to Section 5 above. 11. INSURANCE. Construction Manager shall maintain Comprehensive General Liability Insurance, Workers Compensation Insurance, and Automobile Insurance as required herein. Insurance shall be provided by insurers satisfactory to Agency, proof of which shall be delivered to the Agency within ten (10) days of the effective date of this Agreement. 11.1 Comprehensive General Liability Insurance. Construction Manager shall maintain Comprehensive General Liability Insurance with a combined single limit of not less than one million dollars ($1,000,000) per occurrence. Such insurance shall be primary and shall not be contributing to any insurance maintained by Agency. Construction Manager shall name Agency as an additional insured and provide for thirty (30) days notice of cancellation. Construction Manager's insurance company shall carry a rating of no less than "A" as determined by Best's Rating Service. -10- 11.2 Workers' Compensation. Construction Manager shall maintain Workers' Compensation Insurance in accordance with Workers' Compensation laws for all workers under its employ. 11.3 Automobile Insurance. Construction Manager shall maintain Comprehensive Automobile Liability Insurance with a combined single limit of not less than ONE MILLION DOLLARS ($1,000,000) per occurrence. Construction Manager shall name the Agency as an additional insured and provide for thirty (30) days notice of cancellation. 11.4 Liability Insurance for Agency. Agency shall, at its own cost and expense maintain liability insurance as protection against claims arising from operations under this Agreement. Agency is currently self insured under the City of San Bernardino Liability Program with a combined single limit of ONE MILLION DOLLARS ($1,000,000) per occurrence and excess coverage of TWENTY-FIVE MILLION DOLLARS ($25,000,000). 11.5 Property Insurance. Agency shall, at its own cost and expense, maintain property insurance for the buildings and improvements located on the Site against physical loss or of damage by fire and other such casualties, in a form acceptable to Construction Manager for the full cost of replacement thereof. Agency currently maintains property insurance coverage against risk of physical loss or damage under the San Bernardino Master Property Policy. Agency shall provide certificates of property insurance prior to commencement of construction. -11- 12. TERMINATION OF AGREEMENT. 12.1 Termination byAgency. Subject to the extensions of time set forth in Section 12.2, and any approved extension pursuant to Section 6, failure by Construction Manager to perform any term or provision of this Agreement within the time periods established herein constitutes a default under this Agreement. Agency shall give written notice to Construction Manager specifying any such default, and Construction Manager shall not be in default if Construction Manager, within thirty (30) days from receipt of such notice, immediately, commences to cure, correct or remedy such failure or delay and complete such cure, correction or remedy with diligence. 12.2 Enforced Delay; Extension of Times of Performance. Performance by any party hereunder shall not be deemed to be a default, and all performance and other dates specified in this Agreement shall be extended other than for the payment of money, when delays are caused through no act or fault of the parties and are due to: war, national emergency, strikes, lockouts, riots, floods, earthquakes, acts of God, litigation, unusually severe weather, freight embargoes, or any other causes beyond the control or without the fault of the parties hereto. 12.3 Termination By Agency Without Cause. If Agency terminates this Agreement for reasons other than those provided in Section 12.1, Agency shall reimburse Construction Manager for any unpaid reimbursable expenses and fees due for services rendered -12- to date pursuant to Sections 7.1 and 8. Agency shall also pay Construction Manager for construction equipment retained by Agency. 12.4 Institution of Legal Actions. In addition to any other rights or remedies and subject to the restrictions in Section 12.1, any party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy consistent with the purpose of this Agreement. Such legal actions must be instituted in the Superior Court of the County of San Bernardino, State of California, or in an appropriate municipal court in that county, or in the applicable Federal District Court. 12.5 Inaction Not a Waiver of Default. Any failures or delays by a party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive another party of its right to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. 13. ASSIGNMENT. This Agreement shall not be assigned without prior written consent of Agency. 14. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. -13- 15. ATTORNEYS' FEES. In any action, proceeding or arbitration between Construction Manager, and Team arising from or related to this Agreement, the prevailing party shall, in the discretion of the court or arbitrator, be entitled to reasonable attorneys' fees in addition to other appropriate relief. 16. NOTICE. All notices under this Agreement shall be in writing. Notices may be delivered personally, by certified or registered United States mail, postage prepaid, or by facsimile to the parties at the addresses noted below. Either party may designate a new address for purposes of this Agreement by giving notice to the other party in writing. Notices mailed shall be deemed received at 5:00 P.M. on the second business day following the date of mailing. AGENCY ADDRESS: Economic Development Agency of the City of San Bernardino 201 North "E" Street, 3rd Floor San Bernardino, California 92401 Attn: Development Dept. Director CONSTRUCTION Turner Construction Company MANAGER'S ADDRESS: 575 Anton Blvd., Ste. 750 Costa Mesa, California 92626 Attn: -14- TEAM ADDRESS: San Bernardino Spirit Professional Baseball Team Attn: 17. CONFLICT OF INTEREST. No arrangement for professional services shall be undertaken by Construction Manager which would adversely affect the time or identified personnel Construction Manager has committed to Agency to perform the services required pursuant to this Agreement. Neither Construction Manager nor any other employee or subcontractor of Construction Manager shall engage in any business or transaction or shall have a financial or other personal interest or association which conflicts with the proper discharge of official duties or would tend to impair independence of judgment or action in the performance of official duties pursuant to this Agreement. Construction Manager shall inform Agency in writing of any and all solicitations, whether verbal or in writing, directly or indirectly made by persons or entities seeking employment or contractual relationships with Agency in connection with construction of the Stadium or who seek to influence the decisions of Construction Manager. Construction Manager shall not accept any payment, gratuity, gift or other forms of consideration from any parties seeking employment or contractual relationships with Agency. -15- 18. PROJECT MANAGER. Ed Straub shall be the Project Manager for Construction Manager. The Project Manager shall be authorized to act on behalf of Construction Manager with respect to the services required herein and render all decisions in connection therewith. The Project Manager shall be responsible for directing all activities of Construction Manager and devoting sufficient time to supervise the services which shall be performed pursuant to this Agreement. The designated Project Manager may not be changed by Construction Manager without express written approval of Agency. 19. NONDISCRIMINATION. Agency and Construction Manager agree that there shall be no discrimination against any person or group of persons based on race, color, creed, religion, sex, marital status, national origin or ancestry in the performance of this Agreement. 20. LIMITATION OF LIABILITY. No official or employee of the Agency shall be personally liable to Construction Manager or Team or any of its successors or assigns, in the event of any default or breach by the Agency, or for any amount which may become due to Construction Manager or its successors, or for any obligations under the terms of this Agreement. 21. SEVERABILITY. In the event that any one or more of the sentences, clauses, paragraphs or sections contained herein is declared invalid, void or illegal by a court of competent jurisdiction, the same shall be deemed severable from the remainder of this -16- Agreement and shall not affect, impair or invalidate any of the remaining phrases, sentences, clauses, paragraphs or sections contained hercm. 22. ENTIRE AGREEMENT. This Agreement contains all of the agreements of the parties and cannot be amended or modified except by written agreement. 23. AMENDMENT. This Agreement may be amended at any time by mutual consent of the parties hereto by an instrument in writing. -17- IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first written above. AGENCY Redevelopment Agency of the City of San Bernardino By: DRAFT Acting Executive Director CONSTRUCTION MANAGER Turner Construction Company By: DRAFT Edward D. Quimby Vice President and Territory General Manager TEAM San Bernardino Spirit Professional Baseball Team By: DRAFT President Approved as to legal form and content: By: LjRAFT Agency Counsel SBEO\0001\2019 ct 3\1\95\335 -18- EXHIBIT "A" LEGAL DESCRIPTION OF SITE Exhibit A-1 EXHIBIT "B" SCOPE OF WORK Construction Manager's Scope of Work shall include the following: DESIGN PHASE 1. Consultation. Schedule and attend regular meetings with the Architect and engineers retained by Agency during development of conceptual and preliminary design to advise on selection of materials, building systems and equipment. Provide recommendations for construction feasibility, availability of materials and labor, time requirements for installation and construction, and factors related to cost including costs of alternative designs or materials, preliminary budgets, and possible economies. 2. Scheduling. Develop a Schedule of Performance which coordinates and integrates the design efforts of the Architect and engineers with construction schedules. Update the Schedule of Performance incorporating a detailed schedule for construction including realistic activity sequences and durations, allocation of labor and materials, processing of shop drawings and samples, and delivery of products requiring long lead time procurement. 3. Construction Budizet. Prepare a construction budget for Agency approval and update as development of the drawings and specifications proceed. Advise Agency if the construction budget shall not be met and recommend corrective action. The budget for construction of the Stadium shall not exceed EIGHT MILLION TWO HUNDRED THOUSAND DOLLARS ($8,200,000). 4. Coordination of Contract Documents. Review drawings and specifications prepared by Architect and engineers, recommending solutions when design details affect construction feasibility or the Schedule of Performance. 5. Construction Planning. Recommend and expedite procurement of long lead items to ensure delivery by required dates. Facilitate bidding and award of trade contracts by recommending the appropriate division of labor for trade contracts. Recommendations shall allow for phased construction based on time of performance, availability of labor, and overlapping of trade jurisdictions. 6. Design Review. Review drawings and specifications with Architect and engineers to eliminate areas of conflict and overlapping of construction work performed by trade contractors in accordance with Section 5. Develop bid specifications with Agency and review bids. Exhibit B-1 CONSTRUCTION PHASE 1. Project Control. Monitor all construction work of trade contractors. Coordinate such work with the activities and responsibilities of Agency, the Architect, and engineers. a. Maintain a full time superintendent at the Site to coordinate and provide general direction of construction and progress of trade contractors. b. Establish on-site organization and lines of authority to expedite construction. C. Establish procedures for coordination among Agency, Construction Manager, and trade contractors. d. Schedule and conduct progress meetings when Agency, trade contractors, Construction Manager, Architect, and engineers can discuss construction, including procedures, progress, problems, and scheduling. e. Monitor compliance with the Schedule of Performance as construction progresses. Identify potential variances between scheduled and probable completion dates. Review the Schedule of Performance for necessary adjustments. Provide summary reports of each monitoring and document changes in the Schedule of Performance. f. Determine adequacy of personnel of trade contractors, their equipment, and the availability of materials and supplies to meet the Schedule of Performance. Recommend action to Agency when trade contractor does not satisfy its contractual requirements. 2. Physical Construction. Provide supervision, labor, materials, construction equipment, and tools necessary for completion of construction which are not provided by Agency or trade contractors. 3. Cost Control. Develop and monitor an effective system of cost control. Revise the construction budget approved by Agency, incorporate approved changes, develop cash flow reports and forecasts as needed. Identify variances between actual and budgeted or estimated costs, and advise Agency, Architect and engineers when projected cost exceeds the budget. Maintain cost accounting records on construction work performed by all trade contractors. Provide Agency access to such records and maintain records for a period of three (3) years after final payment of fees and reimbursable expenses to Construction Manager. 4. Change Orders. Develop a system for preparation, review, and processing change orders necessitated by a change in construction. Recommend changes to Agency, Architect, and engineers, receive requests for changes, and assist in negotiating change orders with Agency. Exhibit B-2 5. Payment to Trade Contractors. In conjunction with Agency, develop a procedure to review, approve, process, and pay trade contractors. 6. Permits and Fees. Assist Agency in obtaining all building permits, special permits and approvals from authorities with jurisdiction over the Site. 7. Agency Consultants. Assist Agency in selecting, retaining, and coordinating professional services including services of surveyors, special consultants, and testing laboratories. 8. Inspection. Inspect construction work of trade contractors for defects and deficiencies. Review safety programs of trade contractors and make appropriate recommendations. Performance of such services by the Construction Manager shall not relieve trade contractors of their responsibilities for the safety of persons and property, compliance with all federal, state and local statutes , rules, regulations, and orders applicable to their conduct. 9. Document Interpretation. Refer questions to Architect and engineers for interpretation of documents prepared by Architect and engineers. 10. Shop Drawings and Samples. In collaboration with Architect and engineers establish procedures for expediting processing and approval of shop drawings and samples. 11. Reports and Site Documents. Record the progress of construction of the Stadium. Submit written progress reports to Agency, Architect, and engineers, including information on the construction work of trade contractors and the percentage of completion. Construction Manager shall maintain a daily log available to Agency. Maintain current records of all contracts between Agency, Construction Manager, and trade contractors; drawings, samples, purchases, materials, equipment, maintenance and operating manuals and instructions; and other construction related documents. At the completion of construction, Construction Manager shall deliver all such records to Agency. 12. Substantial Completion. Determine a date of substantial completion of construction of the Stadium which shall be included in the Schedule of Performance, and prepare a list of incomplete or unsatisfactory items for Architect and a schedule for their completion. 13. Final Completion. Determine a date of final completion and provide written notice to Agency that the Stadium is ready for final inspection. Secure and transmit to Agency required guarantees, affidavits, releases, bonds, and waivers. Provide Agency all keys, manuals, record drawings and maintenance stocks. 14. Warranty. Construction Manager shall warrant that all materials and equipment used in construction of the Stadium shall be new, unless specified otherwise, and that all construction work shall be of good quality, free from improper workmanship and defective Exhibit B-3