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HomeMy WebLinkAbout11- Development Department Dt; VELOPMENT DEPARTMENT OF THE CITY OF SAN BERNARDINO REQUEST FOR COMMISSION/COUNCIL ACTION FROM: KENNETH J. HENDERSON SUBJECT: CENTRAL POLICE STATION Executive Director CONSTRUCTION CONTRACTS/ BIDDING DATE: February 15, 1994 --------------------------------------------------------------------------------------------------------------------------------------------- Synopsis of Previous Commission/Council/Committee Action(s): December 7, 1992 - The Community Development Commission approved the site plan of"Scenario C" and authorized staff and consultants to proceed with the development of plans and determination of costs and methods of financing a new Central Police Station. (Synopsis Continued to Next Page...) --------------------------------------------------------------------------------------------------------------------------------------------- Recommended Motion(s): (Community Development Commission) MOTION: That the Community Development Commission authorize the execution of a Construction Management contract with Millie and Severson, Incorporated, for general contracting and construction management services in connection with the construction of the Central Police Station; further, that the Commission authorize advertisement for Trade Contractor bids for construction of the Station; further,that the Commission increase the Agency budget in an amount of$369,714 for construction management services; and, further, that the Commission direct staff to prepare financing documents for a Certificates of Participation issue to yield approximately $5,000,000 in construction funds, and a Tax Allocation Bond issue in an amount necessary to provide for completion of construction and furnishing of the Station. &4,14 Administrator KENNET J. HEND SON Executive Director --------------------------------------------------------------------------------------------------------------------------------------------- Contact Person(s): Kenneth J. Henderson/John Hoeger Phone: 5081 Project Area(s): Central City North (CCN) Ward(s): One (1) Supporting Data Attached: Staff Report; FUNDING REQUIREMENTS: Amount: $369.714 Source: Bond Proceeds Budget Authority: Requested --------------------------------------------------------------------------------------------------------------------------------------------- Commission/Council Notes: -------------------------------------------------------------------------------------------------------------------------- KJH:JBH:lag:cpsconst.cdc COMMISSION MEETING AGENDA MEETING DATE: 02/2111994 Agenda Item Number: _ REQUEST FOR COMMISSION/COUNCIL ACTION Central Police Station - Construction Contracts/Bidding February 15, 1994 Page Number -2- ---------------------------------------------------------------------------------------------------------------------- Synopsis of Previous Commission/Council/Committee Action(s) Continued: April 5, 1993, The City Council adopted Resolution of Intention No. 93-106 regarding the vacation of Seventh Street. April 19, 1993, The Commission received and filed a report on site and orientation alternatives and on the impact of the closure of Seventh Street. May 24, 1993, The Commission approved $8,000,000 in tax allocation bond financing with the balance to be determined at some future date. The Council adopted a resolution vacating Seventh Street. July 6, 1993, The Commission authorized solicitation of bids for general contracting services. September 7, 1993, The Council authorized preparation of documents and resolutions for Certificates of Participation financing for construction and furnishing of the facility. The Commission designated the firm of Millie and Severson, Incorporated as the apparent lowest responsible bidder and directed the negotiation of a contract for general contracting services. November 15, 1993, Resolutions were adopted by the Council, the Commission, and the San Bernardino Joint Powers Financing Authority providing for approximately $6,120,000 in Certificates of Participation financing. November 23, 1993, The Development Review Committee adopted a mitigated negative declaration and approved Development Permit (Type III) No.93-09 to provide for construction of the Station. -------------------------------------------------------------------------------------------------------------------------- KJH:JBH:lag:cpsconst.cdc COMMISSION MEETING AGENDA MEETING DATE: 02/21/1994 Agenda Item Number: DEVELOPMENT DEPARTMENT STAFF REPORT --------------------------------------------------------------------------------------------------------------------- Central Police Station - Construction Contracts/Bidding During the year of 1993, the Common Council, the Community Development Commission, Joint Powers Financing Authority, and the City's Development Review Committee have all taken various actions to enable completion of design for the new Central Police Station. Completion of the design work now allows the Agency to proceed with competitive bidding for the construction work of the Station. Based upon the results of this bidding process, staff will return to the Commission and Council with recommendations for award of construction contracts and for issuance of bonds in amounts determined from the bidding. In accordance with Commission action on September 7, 1993, staff has negotiated a contract with Millie and Severson, Incorporated, for general contracting and construction management services. Based upon advice from the City Attorney's office regarding the most expeditious format for the document, this contract is a now construction management contract in the amount of $369,714. The City Attorney's office is completing the final form of the contract and bid specification documents. A final form of contract will be available for distribution on Friday, February 18, 1994, in replacement of the attached draft. CONSTRUCTION MANAGEMENT CONTRACT The attached construction management contract provides for both preconstruction and construction services from Millie and Severson, Incorporated (Severson). The City Attorney's office has consulted with staff on the most problem free approach to this contract within the requirements of public works contracting law. The use of the construction manager approach allows for consistency with the bid request authorized by the Commission and will provide the most straight forward approach to the construction of the Station. The contract is based upon: $ 25,000 Preconstruction Period Manager's Fee 155,000 Construction Period Manager's Fee 6,811 Liability Insurance 150,829 Personnel Fee 32,074 General Conditions $369,714 Total -------------------------------------------------------------------------------------------------------------------------- KJH:JBH:lag:cpsconst.cdc COMMISSION MEETING AGENDA MEETING DATE: 02/21/1994 Agenda Item Number: _ DEVELOPMENT DEPAI AENT STAFF REPORT Central Police Station - Construction Contracts/Bidding February 16, 1994 Page Number -4- -------------------------------------------------------------------------------------------------------------------------- This represents a $66,540 reduction from the original low bid amount of $436,254. This difference primarily results from the fact that individual prime trade contractors will provide performance bonds for the construction. There has also been a reduction in the general conditions section as a result of certain services no longer required from Severson. In accordance with the specifications approved by the Commission in the Request for Qualifications/Invitation to Bid, the contract is based upon earlier cost and schedule estimates for construction of the Station. It provides for the pro rata adjustment of the Construction Manager's fee based upon actual amounts under final contract. It also provides for an adjustment in personnel costs and general conditions in the event of approved extensions in the project schedule. In accordance with the Commission's action of December 7, 1992, and in order to complete the Station's design within the tightest possible schedule, Severson has begun the constructability reviews and the drafting of bidding documents necessary to allow for the trade contracting bidding process to be completed on a timely basis. Bids for the construction of Station will be advertised upon Commission adoption of the form motion. PRIME TRADE CONTRACT BIDDING Upon approval of the Commission, bids will be requested for all prime trade contract specialties. A copy of the bidding specifications and construction drawings is available for public review and inspection at Agency offices and a second set has been placed in the Council offices for the convenience of Commission members. To shorten the required time, the first construction component will be demolition and site grading. The project schedule calls for the grading bid request to be advertised on February 25, 1994 and for bids to be opened on March 23, 1994. This will allow for recommendations to the Commission for award of grading at its meeting of April 4, 1994. The balance of the trades will be bid approximately three (3) weeks later. The facility is a 79,961 square foot two-story tilt up concrete structure. It is designed as an essential facility so that operations can be expected to continue even after an emergency event, such as an earthquake on the San Andreas fault. It has been value engineered to reduce costs. For example, reinforcement is placed in areas of the roof bearing heavy loads (such as underneath air conditioning units) while other areas in the same roof are not reinforced unnecessarily. The tilt up construction and value engineering have combined to reduce costs substantially as compared to similar facilities recently completed elsewhere. -------------------------------------------------------------------------------------------------------------------------- KJH:JBH:lag:cpsconst.cdc COMMISSION MEETING AGENDA MEETING DATE: 02/21/1994 Agenda Item Number: DEVELOPMENT DEPAI ✓LENT STAFF REPORT Central Police Station - Construction Contracts/Bidding February 16, 1994 Page Number -5- -------------------------------------------------------------------------------------------------------------------------- The City Administrator's office, the City's Facilities Maintenance Division, and the Police Department have reviewed the specifications as they have been developed by the design team. Also, of course, the process has bee reviewed and checked by the Planning and Building Services Department and by the Department of Public Works. Reductions in cost have been made throughout the project to keep costs at a minimum, while continuing to meet the program requirements for police operations. Some portions of the program, such as the short term detention facility and the document imaging equipment, are expected to save substantial amounts of operational costs for the City each year. The actual amount for the cost of construction will not be known until after the completion of bidding. Nevertheless, Severson has, as part of its constructability reviews and project cost estimating services, recently completed informal bidding based upon the recently available draft construction documents. The best estimates indicate that building construction will fall between $100 to $105 per square foot (the design target has been $100) and that fixtures and equipment installed as part of the construction process will equal approximately $6 per square foot. The estimates are: $ 7,699,401 Building Construction 2,381,004 Indirect (A&E, permits, construction management, etc.) $955,884 Site Costs $ 11,036,289 TOTAL BUILDING CONSTRUCTION $ 436,220 FF&E Prime Trade Contracts $ 11,472,509 TOTAL UNDER CONTRACT -------------------------------------------------------------------------------------------------------------------------- KJH:JBH:1ag:cpsconst.cdc COMMISSION MEETING AGENDA MEETING DATE: 02/21/1994 Agenda Item Number: I- DEVELOPMENT DEPAL ✓LENT STAFF REPORT Central Police Station - Construction Contracts/Bidding February 16, 1994 Page Number -6- -------------------------------------------------------------------------------------------------------------------------- In addition there are fixtures, furnishings and equipment to be supplied by vendors based upon bids obtained under the City and Agency's procurement procedures. The estimates for vendor supplied items are: $ 104,321 Fixtures 1,113,104 Furniture 595,000 Equipment $ 1,812,425 TOTAL FF&E These are estimates and the actual amount will be determined by competitive bidding in accordance with adopted procedures. In addition to these costs there are the acquisition costs the Agency has paid to obtain the site. A detailed cost estimate breakdown is available for review but actual costs will be determined by bidding. RECOMMENDATION The plans and specifications have been reviewed by the appropriate City Departments and Divisions. The proposed construction management contract has been approved by Agency Counsel. Based upon the above, staff recommends adoption of the form motion. k, �1 KENNETH J. ENDERSON, Executive Director Development Department -------------------------------------------------------------------------------------------------------------------------- KJH:JBH:1ag:cpsconst.cdc COMMISSION MEETING AGENDA MEETING DATE: 02/21/1994 Agenda Item Number: _ City Attorney DRAFT AGREEMENT BETWEEN OWNER AND CONSTRUCTION MANAGER AGREE4ENT Made this day of in the year Nineteen Hundred and Ninety-Four ( 1994 ) . BETWEEN The Redevelopment Agency of the City of San Bernardino THE OWNER, AND Millie and Severson, Incorporated THE CONSTRUCTION MANAGER. For services in connection with the following described Project: San Bernardino Police Facility The Architect/Engineer for the Project is : Leach Mounce Architects The Owner and the Construction Manager agree as set forth below: FLR/aLCPDFaciL.Agr] 1 February 10, 1994 I � uty Hnorney DRAFT ARTICLE 1 THE CONSTRUCTION TEAM AND EXTENT OF AGREEMENT The CONSTRUCTION MANAGER accepts the relationship of trust and confidence established between him and the Owner by this Agreement. He covenants with the Owner to furnish his best skill and judgment and to cooperate with the Architect/Engineer in furthering the interests of the Owner. He agrees to furnish efficient business administration and superintendence and to use his best efforts to complete the Project in the best and soundest way and in the most expeditious and economical manner consistent with the interest of the Owner. 1. 1 THE CONSTRUCTION TEAM. The Construction Manager, the Owner, and the Architect/Engineer called the "Construction Team" shall work from the beginning of design through construction completion. The Construction Manager shall provide leadership to the Construction Team on all matters relating to construction. 1.2 EXTEND OF AGREEMENT. This Agreement represents the entire agreement between the Owner and the Construction Manager and supersedes all prior negotiations, representations or agreements . When Drawings and Specifications are complete, they shall be identified by amendment to this Agreement. This Agreement shall not be superseded by any provisions of the documents for construction and may be amended only by written instrument signed by both Owner and Construction Manager. 1.3 DEFINITIONS 1 . 3 . 1 The Project is the total construction to be managed under this Agreement . 1 . 3 .2 The Work is that part of the construction that a particular Trade Contractor is to perform and such General Condition Items that the Construction Manager performs with his own forces . 1. 3 . 3 General Condition Items as used herein shall be deemed to mean provision of facilities or performance of work by the Construction manager for items which do not lend themselves readily to inclusion in one of the separate trade contracts . General condition items may include (but are not limited to) the following: watchmen; scaffolding; hoists; signs; safety barricades; water boys; cleaning; dirt chutes; cranes; shanties; preparation for ceremonies including minor construction activity in connection therewith; temporary toilets; fencing; sidewalk bridges; first aid ,station; trucking; temporary elevator; special equipment; winter protection; temporary heat, water, and electricity; temporary protective enclosures; field office and related costs thereof such FLR/aLCPDFaciL.Agr1 February 10, 1994 2 l Ulty Attorney DRAFT as equipment furnishings and office supplies; progress, final and miscellaneous photographs; messengers; installation of Owner furnished items; post and planking; general maintenance; subsoil exploration; refuse disposal; field and laboratory tests of concrete, steel and soils; surveys; bench marks and monuments; storage on site and off site of long lead procurement items; and miscellaneous minor construction work when it is not feasible for the Owner to secure competitive bids or proposals thereon. General Conditions may become part of Trade Contractors work as provided elsewhere in the contract documents . Exhibit sets forth items included. ARTICLE 2 CONSTRUCTION MANAGER'S SERVICES The Construction Manager will perform the following services under this Agreement in each of the two phases described below. 2 . 1 DESIGN PHASE 2 . 1 . 1 CONSULTATION DURING PROJECT DEVELOPMENT. Schedule and attend regular meetings with the Architect/Engineer during the development of design to advise on selection of materials , building systems and equipment . Provide recommendations on 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 . 1.2 SCHEDULING. Develop a Project Schedule that coordinates and integrates the Architect/Engineer' s design efforts and the Owner' s activities with construction schedules . Update the Project Schedule incorporating a detailed schedule for all activities of the project, 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 . Include the Owner' s occupancy requirements showing portions of the Project having occupancy priority. 2 . 1 .3 PROJECT CONSTRUCTION BUDGET. Update and refine the project budget estimate prepared by the Koll Company for Owner' s approval as the development of the Drawings and Specifications proceeds, and advise the Owner and the Architect/Engineer if it appears that the Project Construction Budget will not be met and make recommendations for corrective action. 2 . 1.4 COORDINATION OF CONTRACT DOCUMENTS. Review the Drawings and Specifications as they are being prepared, recommending alternative solutions whenever design details affect construction FLR/aL[PDFacil.Agr1 3 February 10, 1994 Il Uly Attorney DRAFT feasibility or schedules without, however, assuming any of the Architect/Engineer' s responsibilities for design. 2 . 1. 5 CONSTRUCTION PLANNING. Recommend for purchase by the Owner and expedite the procurement of long-lead items to ensure their delivery by the required dates . 2. 1.5. 1 Make recommendations to the Owner and the Architect/Engineer regarding the division of Work in the Drawings and Specifications to facilitate the bidding and awarding of Trade Contracts, allowing for phased construction taking into consideration such factors as time of performance, availability of labor, overlapping trade jurisdictions, and provisions for temporary facilities . 2 . 1 . 5.2 Review the Drawings and Specifications with the Architect/Engineer to eliminate areas of conflict and overlapping in the Work to be performed by the various Trade Contractors . Develop bid specifications and review and advise on all bid documents and procedures . 2 . 1 . 5. 3 Develop Trade Contractor interest in the Project and as working Drawings and Specifications are completed, assist the Owner in taking competitive bids on the Work of the various Trade Contractors . After analyzing the bids, recommend to the Owner that such contracts be awarded. 2 . 1.6 EQUAL EMPLOYMENT OPPORTUNITY. Determine applicable requirements for equal employment opportunity programs for inclusion in Project bidding documents, by coordinating with Owner (City) personnel . 2 .2 CONSTRUCTION PHASE 2 .2 . 1 PROJECT CONTROL. Monitor the Work of the Trade Contractors and coordinate the Work with the activities and responsibilities of the Owner, Architect/Engineer and Construction Manager to complete the Project in accordance with the Owner' s objectives of cost, time and quality. 2 .2 . 1. 1 Maintain a competent full-time Superintendent at the Project site to coordinate and provide general direction of the Work and progress of the Trade Contractors on the Project. 2 .2 . 1.2 Establish on-site organization and lines of authority in order to carry out the overall plans of the Construction Team. 2 .2 . 1 .3 Establish procedures for coordination among the Owner, Architect/Engineer, Trade Contractors and Construction Manager with respect to all aspects of the Project and implement such procedures . FLR/aLCPDFac L.Agr] 4 February 10, 1994 I � Uty Attorney DRAFT 2 .2 . 1 .4 Schedule and conduct progress meetings at which Trade Contractors, Owner, Architect/Engineer and Construction Manager can discuss jointly such matter- as procedures, progress, problems and scheduling. 2 .2 . 1 . 5 Provide regular monitoring of the Project Schedule as construction progresses . identify potential variances between scheduled and probably completion dates . Review schedule for Work not started or incomplete and recommend to the Owner and Trade Contractors adjustments in the schedule to meet the probable complete date. Provide summary reports of each monitoring and document all changes in schedule . 2 .2 . 1 . 6 Determine the adequacy of t'-e Trade Contractors ' personnel and equipment and the availabi-ity of materials and supplies to meet the schedule . Recommend courses of action to the Owner when requirements of a Trade Contract are not being met . 2 .2 .2 PROVISIONS OF FACILITIES. Provide all supervision, labor, materials, construction equipment, tool and subcontract items which are necessary for the completion of the General Condition items which are set forth in Exhibit "B" . 2 .2 . 3 COST CONTROL. Develop and monitor an effective system of Project cost control . Revise and refine the initially approved Project Construction Budget, incorporate approved changes as they occur, develop cash flow reports and forecasts as needed, and identify variances between actual and budgeted or estimated costs and advise the Owner and Architect/Engineer whenever projected cost exceeds budgets or estimates . 2 .2 .3 . 1 Maintain cost accounting records on authorized Work performed under unit costs , actual costs for labor and materials , or other basis requiring accounting records . Afford the Owner access to these records and preserve them for a period of three ( 3 ) years after final payment. 2 .2 .4 CHANGE ORDER. Develop and implement a system for the preparation, review and processing of Change Orders . Recommend necessary or desirable changes to the Owner and the Architect/Engineer, receive requests for changes , assemble the required information and documentation, submit recommendations to the Owner and the Architect/Engineer, and assist in negotiating Change Orders . 2 .2 . 5 PAYMENTS TO TRADE CONTRACTORS. Develop and implement a procedure for the review, approval, processing and payment of applications by Trade Contractors for progress and final payments . FLR/aLCPDFaciL.Agr1 5 February 10, 1994 CITY Attorney DRAFT 2.2 .6 PERMITS AND FEES. Assist the Owner and Architect/Engineer in obtaining all building permits and special permits for permanent improvements, excluding any permits required to be obtained by the various Trade Contractors, such as permits for inspection, temporary facilities, etc . Assist in obtaining approvals from all the authorities having jurisdiction. 2.2.7 OWNER' S CONSULTANTS. If required, assist the Owner in selecting and retaining professional services of a surveyor, testing laboratories and special consultants, and coordinate these services . 2 .2 .8 REVIEW OF WORK AND SAFETY. Review the Work of Trade Contractors for defects and deficiencies in the Work without assuming any of the Architect/Engineer' s legal responsibilities for design and inspection. Review the safety programs of each of the Trade Contractors and make appropriate recommendations . In making such reviews, he shall not be required to make exhaustive or continuous inspections to check quality of work, safety precautions and programs in connection with the Project. The performance of such services by the Construction Manager shall not relieve the Trade Contractors of their responsibilities for performance of the work and for the safety of persons and property, and for compliance with all federal, state and local statutes, rules, regulations and orders applicable to the conduct of the Work. 2 .2 .9 DOCUMENT INTERPRETATION. Refer all questions for interpretation of the documents prepared by the Architect/Engineer to the Architect/Engineer. 2 .2 . 10 SHOP DRAWINGS AND SAMPLES. In collaboration with the Architect/Engineer, establish and implement procedures for expediting the processing and approval of shop drawings and samples . 2 .2 . 11 REPORTS AND PROJECT SITE DOCUMENTS. Record the progress of the Project. Submit written progress reports to the Owner and the Architect/Engineer including information on the Trade Contractors ' Work, and the percentage of completion. Keep a daily log available to the Owner and the Architect/Engineer. 2 .2 . 11. 1 Maintain at the Project site, on a current basis : records of all necessary Contracts, Drawings, samples, purchases, materials , equipment, maintenance and operating manuals and instructions, and other construction related documents, including all revisions . Obtain data from Trade Contractors and maintain a current set of record Drawings, Specifications and operating manuals . At the completion of the Project, deliver all such records to the Owner. FLR/aLCPDFaciL.Agr] 6 February 10, 1994 , I DRAFT 2 .2 . 12 SUBSTANTIAL COMPLETION. Determine Substantial Completion of Work or designated portions thereof and prepare for the Architect/Engineer a list of incomplete or unsatisfactory items and a schedule for their completion. 2 .2 . 13 START-UP. With the Owner' s maintenance personnel, direct the check out of utilities, operations systems and equipment for readiness and assist in their initial start-up and testing by the Trade Contractors . 2 .2 . 14 FINAL COMPLETION. Determine final completion and provide written notice to the Owner and Architect/Engineer that the Work is ready for final inspection. Secure and transmit to the Architect/Engineer required guarantees, affidavits, releases, bonds and waivers . Turn over to the Owner all keys, manuals, record drawings and maintenance stocks . 2 .2 . 15 WARRANTY. The Construction Manager shall collect and deliver to the Owner any specific written warranties or guarantees given by others , including all required Trade Contractor guarantees and warranties . 2.3 ADDITIONAL SERVICES At the request of the Owner, the Construction Manager will provide the following additional services upon written agreement between the Owner and Construction Manager defining the extent of such additional services and the amount and manner in which the Construction Manager will be compensated for such additional services . 2 .3 . 1 Services related to investigation, appraisals or valuations of existing conditions, facilities or equipment, or verifying the accuracy of existing drawings or other Owner- furnished information. 2 .3 .2 Services related to Owner-furnished equipment, furniture and furnishings which are not a part of the Work. 2 .3 . 3 Services related to construction performed by the Owner. 2 . 3 .4 Consultation on replacement of Work damaged by fire or other cause during construction, and furnishing services for the replacement of such Work. 2 .3 . 5 Services made necessary by the default of a Trade Contractor. 2 . 3 .6 Preparing to serve or serving as an expert witness in connection with any public hearing, arbitration proceeding, or legal proceeding. FLR/aLCPDFaciL.Agr] 7 February 10, 1994 DRAFT 2 .3 .7 Services related to Work performed by the Construction Manager other than General Conditions items as set forth in Exhibit „B„ . 2 .3 .8 Inspections of and services related to the Project after completion of the services under this Agreement. 2 .3 .9 Providing any other service not otherwise included in this Agreement . ARTICLE 3 OWNER'S RESPONSIBILITIES 3 . 1 The Owner shall provide full information regarding the requirements for the Project . 3 .2 The Owner shall designate a representative who shall be fully acquainted with the Project and has authority to approve Project Construction Budgets, Changes in the Project, render decisions promptly consistent with Project Schedule and furnish information expeditiously. 3 . 3 The Owner shall retain an Architect/Engineer for design and to prepare construction documents for the Project. The Architect/Engineer' s services, duties and responsibilities are described in the Agreement between the Owner and the Architect/Engineer, a copy of which will be furnished to the Construction Manger . 3 .4 The Owner shall furnish for the site of the Project all necessary surveys describing the physical characteristics, soil reports and subsurface investigations, legal limitations, utility locations, and a legal description. 3 .5 The Owner shall secure and pay for necessary approvals, easements , assessments and charges required for the construction, use or occupancy of permanent structures or for permanent changes in existing facilities . 3 . 6 The Owner shall furnish such legal services as may be necessary for providing the items set forth in Paragraph 3 . 5, and such auditing services as he may require. 3 .7 The Construction Manager will be furnished without charge all copies of Drawings and Specifications reasonably necessary for the execution of the Work. 3 .8 The Owner shall provide the insurance for the Project as provided in Paragraph 10 . 4 , and shall bear the cost of any bonds required. S �� �a w�'. ��c. t:,t�,i t �c,•,, t � ..t c.tip. FLR/aLCPDFaciL.Agr] 8 February 10, 1994 City Attorney DRAFT 3 .9 The services, information, surveys and reports required by the above paragraphs shall be furnished with reasonable promptness at the Owner' s expense, and the Construction Manager shall be entitled to --ply upon the accuracy and completeness thereof . 3 . 10 If the Owner becomes aware of any fault or defect in the Project or non-conformance with the Drawings and Specifications, he shall give prompt written notice thereof to the Construction Manager. 3 . 11 The Owner shall furnish reasonable evidence satisfactory to the Construction Manager that sufficient funds are available and committed for the entire cost of the Project. Unless such reasonable evidence is furnished, the Construction Manager is not required to commence any Work, or may, if such evidence is not presented within a reasonable time, stop the Project upon fifteen ( 15 ) days notice to the Owner. 3 . 12 The Owner shall communicate with the Trade Contractors only through the Construction Manager. 3 . 13 Owner shall make provision within its trade contracts giving authority to Construction Manager to direct, coordinate, and determine the sequence of the work of Trade Contractors, and requiring the Trade Contractor to provide to the Construction Manager all documentation, deemed necessary by the Construction Manager for the proper management and administration of the work, required by this agreement, or the Trade Contract. ARTICLE 4 TRADE CONTRACTS 4. 1 All portions of the Project other than General Condition Items ( set forth in Exhibit "B" ) shall be performed under Trade Contracts including contracts for general construction work with several construction trades . The Construction Manager shall develop bid specifications and assist the Owner in requesting and receiving bids from Trade Contractors and Trade Contracts will be awarded by the Owner after the bids are reviewed by the Architect/Engineer, Construction Manager and Owner. Contracts will be awarded to the lowest responsible bidder in accordance with Owner' s policies and procedures . 4 .2 Trade Contracts will be between the Owner and the Trade Contractors . The form of the Trade Contracts including the General and Supplementary Conditions shall be developed jointly with the Owner and Construction Manager. FLR/aLCPDFaciL.Agr1 9 February 10, 1994 City Attorney DRAFT ARTICLE 5 PROJECT SCHEDULE 5. 1 The services to be provided under this Contract shall be in general accordance with the following schedule: a. Pre-Construction (design) phase 2 month; b. Construction phase 9 month; c . To the extent that the date of Substantial Completion is longer than nine months from the commencement of construction phase, the Construction Manager is entitled to additional compensation as set forth in Article 3 . 5.2 At the time work commences, a Date of Substantial Completion of the Project shall also be established. 5.3 The Date of Substantial Completion of the Project or a designated portion thereof is the date when construction is sufficiently complete in accordance with the Drawings and S-ecifications so the Owner can occupy or utilize the Project or designated portion thereof for the use for which it is intended. Warranties called for by this Agreement or by the Drawings and Specifications shall commence on the Date of Substantial Completion of the Project or designated portion thereof . 5 .4 If the Construction manager is delayed at any time in the progress of the Project by any neglect of the Owner or the Architect/Engineer or by any employee of either, or by any separate contractor employed by the Owner, or by changes ordered in the project, or by labor disputes, fire, unusual delay in transportation, adverse weather conditions not reasonably anticipated, unavoidable casualties , or by delay authorized by the Owner, the Construction Completion Date shall be extended by Change Order for a reasonable length of time. ARTICLE 6 CONSTRUCTION MANAGER'S FEE 6. 1 In consideration of the performance of the Contract, the Owner agrees to pay the Construction Manager in current funds as compensation for his services a Construction Manager' s Fee as set forth in Subparagraphs 6 . 1 . 1 and 6 . 1 . 2 . 6. 1. 1 For the performance of the Pre-Construction Design services, a fee of $25, 000 . 00 , which shall be paid monthly, in equal proportions, based on the scheduled Design Phase time. FLR/aLCPDFaciL.Agr] 1 0 February 10, 1994 l � %,1&y PAciorney DRAFT 6. 1 .2 For work or services performed during the Construction Phase, a fee of $155, 000 ( see page 10A) which shall be paid proportionately to the ratio the monthly payment for the Cost of the Project bears to the estimated cost. Any balance of this fee shall be paid at the time of final payment. 6.2 Adjustments in Fee shall be made as follows : 6.2 . 1 For changes in the Project as provided in Article 8, the Construction Manager' s Fee shall be adjusted by two and one-half percent (2 1/2% ) of the additional cost of the work for increases in the scope of the Project . 6.3 Included in the Construction Manager' s Fee are the following: 6. 3 . 1 Salaries or c- �_er compensation of the Construction Manager' s employees at t.-,e principal office and branch offices, except employees listed in Subparagraph 7 . 2 . 2 . 6.3 .2 General operating expenses of the Construction Manager' s principal and branch offices other than the field office. 6 .3 .3 any part of the Construction Manager' s capital expenses, including interest on the Construction Manager' s capital employed for the Project . 6. 3 .4 Overhead or general expenses of any kind, except as may be expressly included in Article 7 . ARTICLE 7 REIMBURSABLE COSTS 7 . 1 The Owner agrees to pay the Construction Manager for the reimbursable costs he incurs as defined in Paragraph 7 . 2 . Such payment shall be in addition to the Construction Manager' s Fee stipulated in Article 6 . 7 . 1 . 1 Reimbursable costs shall only include costs for General Conditions , as more fully described in Exhibit "B" , Personnel Fee, Insurance costs, or costs for work which has been added by Change Order. 7 . 1 .2 The aggregate Reimbursable Costs shall not exceed $201, 170 ( sum of costs for General Condition fee, Personnel Fee and Insurance costs ) . The aggregate Reimbursable Cost may be adjusted through prorata adjustments to the General Conditon Fee and Personel Fee agreed to in writing pursuant to Article 8 . FLR/aLCPDFaciL.Agr] l 1 February 10, 1994 ! I DRAFT 7 . 1.3 The cost items listed in Article 7 . 2 represent allowable cost, and are not a representative listing of the items to be provided by Construction Manager. Cost items provided by Construction Manager are set forth in Exhibit Any other items for which costs are incurred are to be added by Change Order. 7 .2 REIMBURSABLE COST ITEMS 7 .2. 1 Wages paid for labor in the direct employ of the Construction Manager in the performance of General Condition Items under applicable collective bargaining agreements, or under a salary or wage schedule agreed upon by the Owner and Construction Manager, and including such welfare or other benefits, if any, as may be payable with respect thereto. 7 .2 .2 Salaries of the Construction Manager' s employees when stationed at the field office, in whatever capacity employed, employees engaged on the road in expediting the production or transportation of materials and equipment, and employees in the main or branch office performing the functions listed below: Scheduling Project Management/Administration Document Preparation Warehousing/Transportation Expediting Estimating/Plan Review/Budgeting 7 .2 .3 Costs of all employee benefits and taxes for such items as unemployment compensation and social security, insofar as such cost is based on wages, salaries, or other remuneration paid to employees of the Construction Manager referred to in Subparagraphs 7 . 2 . 1 and 7 . 2 . 2 . 7 .2 .4 The proportion of reasonable transportation, traveling, moving, and hotel expenses of the construction Manager or of his officers or employees incurred in discharge of duties connected with the Project . 7 .2 .5 Cost including rental of all materials, supplies and equipment required to perform General Condition Items, including costs of transportation, storage and maintenance thereof . 7 .2 .6 Cost of the premiums for all insurance which the Construction Manager is required to procure by this Agreement or is deemed necessary by the Construction Manager. . 7 .2 .7 Sales , use, gross receipts or similar taxes related to the Project imposed by any governmental authority, and for which the Construction Manager is liable. FLR/aLCPDFaciL.Agr1 February 10, 1994 12 I � DRAFT 7 .2 .8 Permit fees , licenses, tests, royalties, damages for infringement of patents and costs of defending suits therefor, and deposits lost for causes other than the Construction Manager' s negligence. If royalties or losses and damages, including costs of defense, are incurred which arise from a particular design, process , or the product of a particular manufacturer or manufacturers specified by the Owner or Architect/Engineer, and the Construction Manager has no reason to believe there will be infringement of patent rights, such royalties, losses and damages shall be paid by the Owner. 7 .2 .9 Losses, expenses or damages to the extent not compensated by insurance otherwise ( including settlement made with the written approval of the owner) . 7 .2 . 10 Minor expenses such as telegrams, long=distance telephone calls, telephone service at the site, expressage, and similar petty cash items in connection with the Project. 7 .2 . 11 Cost of removal of all debris . 7 .2 . 12 Cost incurred due to an emergency affecting the safety of persons and property. 7 .2 . 13 Cost of data processing services required in the performance of the services outlined in Article 2 . 7 .2 . 14 Legal costs reasonably and properly resulting from prosecution of the Project for the Owner. 7 .2 . 15 All costs directly incurred in the performance of the Project and not included in the Construction Manager' s Fee as set forth in paragraph 6 . 3 . ARTICLE 8 CHANGES IN THE PROJECT 8. 1 The Owner, without invalidating this Agreement, may order Changes in the Project within the general scope of this Agreement consisting of additions, deletions or other revisions, the Construction Manager' s Fee and the Construction Completion Date or amount of Reimbursable Costs being adjusted accordingly. All such Changes in the Project shall be authorized by Change Order. 8.2 A Change Order is written order to the Construction Manager signed by the Owner or his authorized agent issued after the execution of this Agreement, authorizing a change in the scope of the Project, services to be provided, or the Construction Manager' s Fee or the construction Completion Date, and/or amount of FLR/aLCPDFaciL.Agr1 1 3 February 10, 1994 ji Vily DRAFT Reimbursable Costs . The construction Manager' s Fee shall be adjusted as provided in Paragraph 6 . 2 . 8.3 Change Orders adjusting Construction Manager compensation shall be made as follows : In the event that the project construction phase duration exceeds nine ( 9 ) months ( i . e. as measured from the date of commencement to the date of Substantial Completion) , the Construction Manager shall receive a Change Order for a prorata share of increased General Conditions costs and Personnel Fees . Further, in the event that the aggregate Trade Contracts exceed $7 , 225, 000, the Construction Manager shall receive as an adjustment to its fee, an amount of two and one-half percent (2 . 5% ) of such excess . PAYMENTS TO THE CONSTRUCTION MANAGER 9 . 1 The Construction Manager shall submit monthly to the Owner a statement, sworn to, if required, showing in detail all Reimbursable Costs incurred during the previous month, all amounts due Trade Contractors, and the amount of the Construction Manager' s Fee due as provided in Article 6 . Payment by the Owner to the Construction Manager of his statement amount shall be made within fifteen ( 15 ) days after it is received in writing. 9.2 Final payment constituting the unpaid balance of Reimbursable Costs and the Construction Manager' s Fee shall be due and payable when the Project is delivered to the Owner, ready for beneficial occupancy, or when the Owner occupies the Project, whichever event first occurs, provided that the project be then substantially completed and this Agreement substantially performed. 9.3 If the Owner should fail to pay the Construction Manager within ten ( 10 ) days after the time the payment of any amount becomes due, then the Construction Manager may, upon seven (7 ) additional days ' written notice seek a hearing before the Owner' s governing body (EDA Commission) to resolve the dispute. Should a resolution not be reached, the disputed amount shall be placed in an escrow account until such time the dispute is resolved, or upon completion of the project, the Construction Manger may seek a judicial remedy. 9.4 Payments due but unpaid shall bear interest at the rate the Owner is paying on his construction loan or at the legal rate, whichever is higher . FLR/aL[PDFacil.Agr] 1 4 February 10, 1994 DRAFT - VJZ a ct- ARTICLE 10 � ` U- INSURANCE, INDEMNITY AND--WAIVER OF SUBROGATION {��w� <� ► M S 10. 1 INDEMNITY 1 10. 1. 1 The Construction Manager agrees to indemnify and hold the Owner harmless from all claims for bodily injury and property damage (other than the work itself and other prope--ty insured under Paragraph 10 . 4 ) that may arise from the Construction Manager' s operations under this Agreement . i 10. 1.2 The Owner shall cause all Trade Contractors to agree to indemnify the Owner and the Construction Manager and hold them harmless from all claims for bodily injury and property damage (other than property insured under Paragraph 10 . 4 ) that may arise from that contractor' s operations Such provisions shall be in a form satisfactory to the Construction Manager. 10.2 CONSTRUCTION MANAGER'S LIABILITY INSURANCE 10.2 . 1 The Construction Manager shall purchase and maintain such insurance as will protect him from the claims set forth below which may arise out of or result from the Construction Manager' s ! operations under this Agreement . 10.2. 1. 1 Claims under workers ' compensation, disability benefit and othe- similar employee benefit acts which are applicable to the work to be performed. 10.2 . 1.2 Claims for damages because of bodily injury, occupational sickness or disease, or death of his employees under any applicable employer' s liability law. r 10.2 . 1.3 Claims for damages because of bodily injury, or death of ? any person other than his employees . 10.2 . 1.4 Claims for damages insured by usual personal injury liability coverage which are sustained ( 1 ) by any person as a result of an offense directly or indirectly related to the employment of such person by the Construction Manager or (2 ) by any other person. 10.2 . 1.5 Claims for damages, other than to the work itself, because of injury to or destruction of tangible property, including loss of use therefrom. 10.2 . 1.6 Claims for damages of bodily injury or death of any person or property damage arising out of the ownership, maintenance or use of any motor vehicle . FLR/aLCPDFaciL.Agr1 February 10, 1994 1 5 Uty Attorney DRAFT 10.2 .2 The Construction Manager' s Comprehensive General Liability Insurance shall include premises --operations ( including explosion, collapse and underground coverage) elevators, independent contractors , completed operations, and blanket contractual liability on all written contracts, all including broad form property damage coverage . 10.2 . 3 The Construction Manager' s Comprehensive General and Automobile Liability Insurance, as required by Subparagraphs 10 . 2 . 1 and 10 . 2 . 2 shall be written for not less than limits of liability k as follows : x a. Comprehensive General Liability 1 . Personal Injury $1 , 000, 000 Each Occurrence $2 , 000, 000 Aggregate (Completed Operations) 2 . Property Damage $1 , 000, 000 Each Occurrence $2 , 000, 000 Aggregate b. Comprehensive Automobile Liability 1 . Bodily Injury $1, 000 , 000 Each Person $1, 000, 000 Each Occurrence 2 . Property Damage $1, 000 , 000 Each Occurrence 10.2 .4 Comprehensive General Liability Insurance may be arranged under a single policy for the full limits required or by a combination of underlying policies with the balance provided by an Excess or Umbrella Liability policy. 10.2 . 5 The foregoing policies shall contain a provision that coverages afforded under the policies will not be canceled or not renewed until at least sixty ( 60 ) days ' prior written notice has been given to the Owner. Certificates of Insurance showing such coverages to be in Force shall be filed with the Owner prior to commencement of the Work and shall name Owner as an additional insured. 10.3 OWNER' S LIABILITY INSURANCE 10.3 . 1 The Owner shall be responsible for purchasing and maintaining his own liability insurance and, at his option, may purchase and maintain such insurance as will protect him against claims which may arise from operations under this Agreement . FLR/aLCPDFaciL.Agr1 16 February 10, 1994 City Attorney DRAFT 10.4 INSURANCE TO PROTECT PROJECT 10.4. 1 The Owner shall purchase and maintain property insurance in a form acceptable to the Construction Manager upon the entire Project for the full cost of replacement as of the time of any loss . This insurance shall include as named insureds the Owner, the Construction Manager, Trade Contractors and their Trade Subcontractors and shall insure against loss from the perils of Fire, Extended Coverage . l and shall include "All Risk" insurance for physical loss or damage including without duplication of coverage at least theft, vandalism, malicious mischief, transit, collapse, flood, earthquake, testing, and damage resulting from a defective design, workmanship or material . The Owner will increase limits of coverage, if necessary, to reflect estimated replacement cost. The Owner will be responsible for any co-insurance penalties or deductibles . If the Project covers an addition to or is adjacent to an existing building, the Construction Manager, Trade Contractors and their Trade Subcontractors shall be named as x additional insureds under the Owner' s Property Insurance covering such building and its contents . 10.4. 1. 1 If the Owner finds it necessary to occupy or use a portio or portions of the Project prior to Substantial Completion thereof, such occupancy shall not commence prior to a time mutually agreed to by the Owner and Construction Manager and to which the insurance company or companies providing the property insurance have consented by endorsement to the policy or policies . This insurance shall not be canceled or lapsed on account of such partial occupancy. Consent of the Construction Manager and of the insurance company or companies to such occupancy or use shall not be unreasonably withheld. j J 10.4.2 The Owner shall purchase and maintain such boiler and machinery insurance as may be required or necessary. This s insurance shall include the interests of the Owner, the Construction Manager, Trade Contractors and their Trade Subcontractors in the Work. i 10.4. 3 The Owner shall purchase and maintain such insurance as wil protect the Owner and Construction Manager against loss of use j of Owner' s property due to those perils insured pursuant to Subparagraph 10 . 4 . 1 . Such policy will provide coverage for expediting expenses of materials, continuing overhead of the Owner and Construction Manager, necessary labor expense including overtime, loss of income by the Owner and other determined exposures . Exposures of the Owner and the Construction Manager shall be determined by mutual agreement and separate limits of ,coverage fixed for each item. FLR/aLCPDFaciL.Agr] 1 7 February 10, 1994 � I City Attorney DRAFT 10.4 .4 The Owner shall file a copy of all policies with the Construction Manager before an exposure to loss may occur. Copies of any subsequent endorsements will be furnished to the Construction Manager. The Construction Manager will be give sixty ( 60 ) days notice of cancellation, non-renewal, or new endorsements restricting or reducing coverage. If the Owner does not intend to purchase such insurance, he shall inform the Construction Manager i in writing prior to the commencement of the Work. The Construction Manager may then effect insurance which will protect the interest of himself, the Trade Contractors and their Trade Subcontractors in the Project, the cost of which shall be reimbursable pursuant to Article 7 . If the Construction Manager is damaged by failure of the Owner to purchase or maintain such insurance or to so notify the Construction Manager, the Owner shall bear all reasonable costs properly attributable thereto. 10.5 PROPERTY INSURANCE LOSS ADJUSTMENT z t c 10.5. 1 Any insured loss shall be adjusted with the Owner and the Construction Manager and made payable to the owner and Construction Manager as trustees for the insureds, as their interests may appear, subject to any applicable mortgagee clause. 10.5.2 Upon the occurrence of an insured loss, monies received will be deposited in a separate account and the trustees shall make distribution in accordance with the agreement of the parties in interest, or in the absence of such agreement, in accordance with an arbitration award pursuant to Article 14 . If the trustees are unable to agree on the settlement of the loss, such dispute shall also be submitted to arbitration pursuant to Article 14 . i 10.6 WAIVER OF SUBROGATION } z t 10.6. 1 The Owner and Construction Manager waive all rights against each other, the Architect/Engineer, Trade Contractors, and ? their Trade Subcontractors for damages caused by perils covered by insurance provided under Paragraph 10 . 4, except such rights as they may have to the proceeds of such insurance held by the Owner and Construction Manager as trustees . The Owner shall require similar waivers from all Trade Contractors and their Trade Subcontractors . 10.6.2 The Owner and Construction Manager waive all rights against each other and the Architect/Engineer, Trade Contractors and their Trade Subcontractors for loss or damage to any equipment I used in connection with the Project and covered by any property insurance. The Owner shall require similar waivers from all Trade t Contractors and their Trade Subcontractors . 10. 6.3 The Owner waives subrogation against the Construction Manager, Architect/Engineer, Trade Contractors, and their Trade Subcontractors on all property and consequential loss policies FLR/aLCP0FaciL.Agr3 1 8 February 10, 1994 I � City of San Bernardino Economic Development Ager F 'FT", _C17 ' CLEPF DEVELOPMENT DEPARTMENT r ;31 February 18, 1994 TO: COMMUNITY DEVELOPMENT COMMISSION MEMBERS FROM: Kenneth J. Henderson, Executive Director CC's: Agency Administrator; City Clerk; City Attorney; File SUBJECT: CENTRAL POLICE STATION - Construction Management Contract Agenda Item No. 11 for the Commission meeting on Monday, February 21, 1993, includes the Construction Management Contract for the Central Police Station. The draft contract attached to the staff report was in the process of revision and the report indicated a revised draft would be distributed for review. The attached contract is a final draft for your review and consideration. It is also receiving final review from the City Attorney's office and from Risk Management. If the Commission approves the contract on Monday it will be executed in this form together with any final changes approved by Agency Counsel and by the Director of Risk Management. Please do not hesitate to contact me if you need any information or have questions. KE T J. HE r DERSON, EXECUTIVE DIRECTOR Administrator 0218NWPD.CDC -4 ( ( AGREEMENT BETWEEN OWNER AND CONSTRUCTION MANAGER AGREEMENT Made this day of in the year Nineteen Hundred and Ninety-Four (1994) . BETWEEN The Redevelopment Agency of the City of San Bernardino THE OWNER, AND Millie and Severson, Incorporated THE CONSTRUCTION MANAGER. For services in connection with the following described Project: San Bernardino Police Facility The Architect for the Project is: Leach Mounce Architects The Owner and the Construction Manager agree as set forth below: [PDFacil.Agr] February 18, 1994 1 ARTICLE 1 THE CONSTRUCTION TEAM AND EXTENT OF AGREEMENT The CONSTRUCTION MANAGER accepts the relationship of trust and confidence established between him and the Owner by this Agreement. He covenants with the Owner to furnish his best skill and judgment and to cooperate with the Architect in furthering the interests of the Owner. He agrees to furnish efficient business administration and superintendence and to use his best efforts to complete the Project in the best and soundest way and in the most expeditious and economical manner consistent with the interest of the Owner. 1. 1 THE CONSTRUCTION TEAM. The Construction Manager, the Owner, and the Architect called the "Construction Team" shall work from design through construction completion. The Construction Manager shall provide leadership to the Construction Team on all matters relating to construction. 1.2 EXTEND OF AGREEMENT. This Agreement represents the entire agreement between the Owner and the Construction Manager and supersedes all prior negotiations, representations or agreements. When Drawings and Specifications are complete, they shall be identified by amendment to this Agreement. This Agreement shall not be superseded by any provisions of the documents for construction and may be amended only by written instrument signed by both Owner and Construction Manager. 1.3 DEFINITIONS 1.3. 1 The Project is the total construction to be managed under this Agreement. 1.3.2 The Work is that part of the construction that a particular Trade Contractor is to perform and such General Condition Items that the Construction Manager performs with his own forces. 1.3.3 General Condition Items as used herein shall be deemed to mean provision of facilities or performance of work by the Construction manager for items which do not lend themselves readily to inclusion in one of the separate trade contracts. General condition items may include miscellaneous minor construction work when it is not feasible for the Owner to secure competitive bids or proposals thereon. General Conditions may become part of Trade Contractors work as provided elsewhere in the contract documents. Exhibit A sets forth the general condition items within the scope of this agreement. [PDFacil.Agr] February 18, 1994 2 ARTICLE 2 CONSTRUCTION MANAGER'S SERVICES The Construction Manager will perform the following services under this Agreement in each of the two phases described below. 2.1 DESIGN PHASE - It is acknowledged that Construction Manager began providing services for the design phase on December 5, 1993 . Design phase ends at the award of trade contract (except in demolition and grading) . 2 .1.1 CONSULTATION DURING PROJECT DEVELOPMENT. Schedule and attend regular meetings with the Architect during the development of design to advise on selection of materials, building systems and equipment. Provide recommendations on 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 .1.2 SCHEDULING. Develop a Project Schedule that coordinates and integrates the Architect's design efforts and the Owner's activities with construction schedules. Update the Project Schedule incorporating a detailed schedule for all activities of the project, 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. Include the Owner's occupancy requirements showing portions of the Project having occupancy priority. 2.1.3 PROJECT CONSTRUCTION BUDGET. Update and refine the project budget estimate prepared by the Koll Company for Owner' s approval as the development of the Drawings and Specifications proceeds, and advise the Owner and the Architect if it appears that the Project Construction Budget will not be met and make recommendations for corrective action. 2 . 1.4 COORDINATION OF CONTRACT DOCUMENTS. Review the Drawings and Specifications as they are being prepared, recommending alternative solutions whenever design details affect construction feasibility or schedules without, however, assuming any of the Architect' s responsibilities for design. 2 . 1.5 CONSTRUCTION PLANNING. Recommend for purchase by the Owner and expedite the procurement of long-lead items to ensure their delivery by the required dates. [PDFacil.Agr] February 18, 1994 3 2 .1.5.1 Make recommendations to the Owner and the Architect regarding the division of Work in the Drawings and Specifications to facilitate the bidding and awarding of Trade Contracts, allowing for phased construction taking into consideration such factors as time of performance, availability of labor, overlapping trade jurisdictions, and provisions for temporary facilities. 2.1.5.2 Review the Drawings and Specifications with the Architect to eliminate areas of conflict and overlapping in the Work to be performed by the various Trade Contractors. Develop bid specifications and review and advise on all bid documents and procedures. 2. 1.5.3 Develop Trade Contractor interest in the Project and as working Drawings and Specifications are completed, assist the Owner in taking competitive bids on the Work of the various Trade Contractors. After analyzing the bids, recommend to the Owner that such contracts be awarded. 2. 1.6 EQUAL EMPLOYMENT OPPORTUNITY. Determine applicable requirements for equal employment opportunity programs for inclusion in Project bidding documents, by coordinating with Owner (City) personnel. 2 .2 CONSTRUCTION PHASE - The Construction phase begins at awarding of trade contracts (other than demolition and rough grading) . 2.2. 1 PROJECT CONTROL. Monitor the Work of the Trade Contractors and coordinate the Work with the activities and responsibilities of the Owner, Architect and Construction Manager to complete the Project in accordance with the Owner's objectives of cost, time and quality. 2.2.1.1 Maintain a competent full-time Superintendent at the Project site to coordinate and provide general direction of the Work and progress of the Trade Contractors on the Project. 2.2 . 1.2 Establish on-site organization and lines of authority in order to carry out the overall plans of the Construction Team. 2.2. 1.3 Establish procedures for coordination among the Owner, Architect, Trade Contractors and Construction Manager with respect to all aspects of the Project and implement such procedures. 2 .2 . 1.4 Schedule and conduct progress meetings at which Trade Contractors, Owner, Architect and Construction Manager can discuss jointly such matters as procedures, progress, problems and scheduling. [PDFacil.Agr] February 18, 1994 4 2 .2 .1.5 Provide regular monitoring of the Project Schedule as construction progresses. Identify potential variances between scheduled and probable completion dates. Review schedule for Work not started or incomplete and recommend to the Owner and Trade Contractors adjustments in the schedule to meet the probable complete date. Provide summary reports of each monitoring and document all changes in schedule. 2 .2.1. 6 Determine the adequacy of the Trade Contractors' personnel and equipment and the availability of materials and supplies to meet the schedule. Recommend courses of action to the Owner when requirements of a Trade Contract are not being met. 2.2 .2 PROVISIONS OF FACILITIES. Provide all supervision, labor, materials, construction equipment, tool and subcontract items which are necessary for the completion of the General Condition items which are set forth in Exhibit "A". 2.2.3 COST CONTROL. Develop and monitor an effective system of Project cost control. Revise and refine the initially approved Project Construction Budget, incorporate approved changes as they occur, develop cash flow reports and forecasts as needed, and identify variances between actual and budgeted or estimated costs and advise the Owner and Architect whenever projected cost exceeds budgets or estimates. 2.2 .3. 1 Maintain cost accounting records on authorized Work performed under unit costs, actual costs for labor and materials, or other basis requiring accounting records. Afford the Owner access to these records and preserve them for a period of three (3) years after final payment. 2.2 .4 CHANGE ORDER. Develop and implement a system for the preparation, review and processing of Change Orders. Recommend necessary or desirable changes to the Owner and the Architect, receive requests for changes, assemble the required information and documentation, submit recommendations to the Owner and the Architect, and assist in negotiating Change Orders. 2.2.5 PAYMENTS TO TRADE CONTRACTORS. Develop and implement a procedure for the review, approval, processing and payment of applications by Trade Contractors for progress and final payments. 2 .2.6 PERMITS AND FEES. Assist the Owner and Architect in obtaining all building permits and special permits for permanent improvements, excluding any permits required to be obtained by the various Trade Contractors, such as permits for inspection, temporary facilities, etc. Assist in obtaining approvals from all the authorities having jurisdiction. [PDFacil.Agr] February 18, 1994 5 2.2.7 OWNERIS CONSULTANTS. If required, assist the Owner in selecting and retaining professional services of a surveyor, testing laboratories and special consultants, and coordinate these services. 2.2.8 REVIEW OF WORK AND SAFETY. Review the Work of Trade Contractors for defects and deficiencies in the Work without assuming any of the Architect' s legal responsibilities for design and inspection. Review the safety programs of each of the Trade Contractors and make appropriate recommendations. In making such reviews, he shall not be required to make exhaustive or continuous inspections to check quality of work, safety precautions and programs in connection with the Project. The performance of such services by the Construction Manager shall not relieve the Trade Contractors of their responsibilities for performance of the work and for the safety of persons and property, and for compliance with all federal, state and local statutes, rules, regulations and orders applicable to the conduct of the Work. 2.2.9 DOCUMENT INTERPRETATION. Refer all questions for interpretation of the documents prepared by the Architect to the Architect. 2 .2 . 10 SHOP DRAWINGS AND SAMPLES. In collaboration with the Architect, establish and implement procedures for expediting the processing and approval of shop drawings and samples. 2 .2. 11 REPORTS AND PROJECT SITE DOCUMENTS. Record the progress of the Project. Submit written progress reports to the Owner and the Architect including information on the Trade Contractors' Work, and the percentage of completion. Keep a daily log available to the Owner and the Architect. 2 .2 . 11. 1 Maintain at the Project site, on a current basis: records of all necessary Contracts, Drawings, samples, purchases, materials, equipment, maintenance and operating manuals and instructions, and other construction related documents, including all revisions. Obtain data from Trade Contractors and maintain a current set of record Drawings, Specifications and operating manuals. At the completion of the Project, deliver all such records to the Owner. 2 .2.12 SUBSTANTIAL COMPLETION. Determine Substantial Completion of Work or designated portions thereof and prepare for the Architect a list of incomplete or unsatisfactory items and a schedule for their completion. 2.2 .13 START-UP. With the Owner's maintenance personnel, direct the check out of utilities, operations systems and equipment for [PDFacil.Agr] February 18, 1994 6 readiness and assist in their initial start-up and testing by the Trade Contractors. 2.2 .14 FINAL COMPLETION. Determine final completion and provide written notice to the Owner and Architect that the Work is ready for final inspection. Secure and transmit to the Architect required guarantees, affidavits, releases, bonds and waivers. Turn over to the Owner all keys, manuals, record drawings and maintenance stocks. 2 .2.15 WARRANTY. The Construction Manager shall collect and deliver to the Owner any specific written warranties or guarantees given by others, including all required Trade Contractor guarantees and warranties. 2 .3 ADDITIONAL SERVICES At the request of the Owner, the Construction Manager will provide the following additional services upon written agreement between the Owner and Construction Manager defining the extent of such additional services and the amount and manner in which the Construction Manager will be compensated for such additional services. 2.3.1 Services related to investigation, appraisals or valuations of existing conditions, facilities or equipment, or verifying the accuracy of existing drawings or other Owner- furnished information. 2 .3.2 Services related to Owner-furnished equipment, furniture and furnishings which are not a part of the Work. 2.3.3 Services related to construction performed by the Owner. 2.3.4 Consultation on replacement of Work damaged by fire or other cause during construction, and furnishing services for the replacement of such Work. 2 .3.5 Services made necessary by the default of a Trade Contractor. 2.3. 6 Preparing to serve or serving as an expert witness in connection with any public hearing, arbitration proceeding, or legal proceeding. 2 .3.7 Services related to Work performed by the Construction Manager other than General Conditions items as set forth in Exhibit nA". 2 .3.8 Inspections of and services related to the Project after completion of the services under this Agreement. [PDFacil.Agr] February 18, 1994 7 2 .3.9 Providing any other service not otherwise included in this Agreement. ARTICLE 3 OWNER'S RESPONSIBILITIES 3.1 The Owner shall provide full information regarding the requirements for the Project. 3.2 The Owner shall designate a representative who shall be fully acquainted with the Project and has authority to approve Project Construction Budgets, Changes in the Project, render decisions promptly consistent with Project Schedule and furnish information expeditiously. 3.3 The Owner shall retain an Architect for design and to prepare construction documents for the Project. The Architect' s services, duties and responsibilities are described in the Agreement between the Owner and the Architect, a copy of which will be furnished to the Construction Manger. 3.4 The Owner shall furnish for the site of the Project all necessary surveys describing the physical characteristics, soil reports and subsurface investigations, legal limitations, utility locations, and a legal description. 3.5 The Owner shall secure and pay for necessary approvals, easements, assessments and charges required for the construction, use or occupancy of permanent structures or for permanent changes in existing facilities. 3.6 The Owner shall furnish such legal services as may be necessary for providing the items set forth in Paragraph 3 .5, and such auditing services as he may require. 3.7 The Construction Manager will be furnished without charge all copies of Drawings and Specifications reasonably necessary for the execution of the Work. 3.8 The Owner shall provide the insurance for the Project as provided in Paragraph 10. 4, and shall bear the cost of any bonds required. 3.9 The services, information, surveys and reports required by the above paragraphs shall be furnished with reasonable promptness at the Owner's expense, and the Construction Manager shall be entitled to rely upon the accuracy and completeness thereof. [PDFacil.Agr) February 18, 1994 8 3. 10 If the Owner becomes aware of any fault or defect in the Project or non-conformance with the Drawings and Specifications, he shall give prompt written notice thereof to the Construction Manager. 3.11 The Owner shall furnish reasonable evidence satisfactory to the Construction Manager that sufficient funds are available and committed for the entire cost of the Project. Unless such reasonable evidence is furnished, the Construction Manager is not required to commence any Work, or may, if such evidence is not presented within a reasonable time, stop the Project upon fifteen (15) days notice to the Owner. 3.12 The Owner shall communicate with the Trade Contractors only through the Construction Manager. 3.13 Owner shall make provision within its trade contracts giving authority to Construction Manager to direct, coordinate, and determine the sequence of the work of Trade Contractors, and requiring the Trade Contractor to provide to the Construction Manager all documentation, deemed necessary by the Construction Manager for the proper management and administration of the work, required by this agreement, or the Trade Contract. ARTICLE 4 TRADE CONTRACTS 4. 1 All portions of the Project other than General Condition Items (set forth in Exhibit "A") shall be performed under Trade Contracts including contracts for general construction work with several construction trades. The Construction Manager shall develop bid specifications and assist the Owner in requesting and receiving bids from Trade Contractors and Trade Contracts will be awarded by the Owner after the bids are reviewed by the Architect, Construction Manager and Owner. Contracts will be awarded to the lowest responsible bidder in accordance with Owner's policies and procedures. 4.2 Trade Contracts will be between the Owner and the Trade Contractors. The form of the Trade Contracts including the General and Supplementary Conditions shall be developed jointly with the Owner and Construction Manager. However, final decision for the form of the Trade Contracts shall rest with the Owner. [PDFacil.Agr] February 18, 1994 9 ARTICLE 5 PROJECT SCHEDULE 5.1 The services to be provided under this Contract shall be in general accordance with the following schedule: a. Design phase 2 months; b. Construction phase 9 months; C. To the extent that the design phase exceeds 2 months or the date of Substantial Completion is longer than nine months from the commencement of construction phase, the Construction Manager is entitled to additional compensation as set forth in Subparagraphs 6.2 . 1 and 7. 1. 2 . 5.2 At the time work commences, a Date of Substantial Completion of the Project shall also be established. 5.3 The Date of Substantial Completion of the Project or a designated portion thereof is the date when construction is sufficiently complete in accordance with the Drawings and Specifications so the Owner can occupy or utilize the Project or designated portion thereof for the use for which it is intended. Warranties called for by this Agreement or by the Drawings and Specifications shall commence on the Date of Substantial Completion of the Project or designated portion thereof. ARTICLE 6 CONSTRUCTION MANAGER'S FEE 6.1 In consideration of the performance of the Contract, the Owner agrees to pay the Construction Manager in current funds as compensation for his services a Construction Manager's Fee as set forth in Subparagraphs 6. 1. 1 and 6. 1.2 . 6.1.1 For the performance of the Design services, a fee of $25, 000. 00, which shall be paid monthly, in equal proportions, based on the scheduled Design Phase time. 6.1.2 For work or services performed during the Construction Phase, a fee of $155, 000 which shall be paid proportionately to the ratio the monthly payment for the Cost of the Project bears to the estimated cost. Any balance of this fee shall be paid at the time of final payment. 6.2 Adjustments in Fee shall be made as follows: [PDFacil.Agr] February 18, 1994 10 6.2.1 The Construction Manager's Fee shall be adjusted by two and one-half percent (2 1/2%) of the additional cost of the work for increases in the scope of the Project. Therefore, in the event that the aggregate Trade Contracts exceed $7,225, 000, the Construction Manager shall receive as an adjustment to its fee, an amount of two and one-half percent (2 .5%) of such excess. 6.3 Included in the Construction Manager' s Fee are the following: 6.3.1 Salaries or other compensation of the Construction Manager's employees at the principal office and branch offices, except employees listed in Subparagraph 7.2 . 2 . 6.3.2 General operating expenses of the Construction Manager' s principal and branch offices other than the field office. 6.3.3 Any part of the Construction Manager's capital expenses, including interest on the Construction Manager' s capital employed for the Project. 6.3.4 Overhead or general expenses of any kind, except as may be expressly included in Article 7. ARTICLE 7 REIMBURSABLE COSTS 7.1 The Owner agrees to pay the Construction Manager for the reimbursable costs he incurs as defined in Paragraph 7 .2 . Such payment shall be in addition to the Construction Manager's Fee stipulated in Article 6. 7 . 1.1 Reimbursable costs shall only include costs for General Conditions, as more fully described in Exhibit "A", Personnel Fee, Insurance costs, or costs for work which has been added by Change Order. 7 . 1.2 The aggregate amounts for all Reimbursable Costs shall not exceed the following totals except as otherwise provided in this Agreement: a. Reimbursable Costs during the Design Phase shall not exceed a maximum of $15, 000 except that such maximum shall be adjusted by adding a maximum of $7,500 for each month in excess of two (2) months for the Design Phase (the Design Phase shall be deemed to have started on December 5, 1993 for the purpose of said adjustment) . [PDFacil.Agr] February 18, 1994 1 1 b. Reimbursable Costs during the Construction Phase shall not exceed a maximum of $175, 2000 except that such maximum shall be adjusted by adding a maximum of $19,500 for each month in excess of nine (9) months for the Construction Phase. For the purposes of determing the above maximum amounts, partial months shall be prorated based upon a 30 day month. Any Reimbursable Costs in excess of the adjusted maximums described above must be specifically authorized by written Change Order as provided in Article 8. 7 .1.3 The cost items listed in Article 7.2 represent allowable cost, and are not a representative listing of the items to be provided by Construction Manager. Cost items provided by Construction Manager are set forth in Exhibit "A". Any other items for which costs are incurred are to be added by Change Order. 7 .2 REIMBURSABLE COST ITEMS 7.2 .1 Wages paid for labor in the direct employ of the Construction Manager in the performance of General Condition Items under applicable collective bargaining agreements, or under a ' salary or wage schedule agreed upon by the Owner and Construction Manager, and including such welfare or other benefits, if any, as may be payable with respect thereto. 7.2 .2 Salaries of the Construction Manager' s employees when stationed at the field office, in whatever capacity employed, employees engaged on the road in expediting the production or transportation of materials and equipment, and employees in the main or branch office performing the functions listed below: Scheduling Project Management/Administration Document Preparation Warehousing/Transportation Expediting Estimating/Plan Review/Budgeting 7.2 .3 Costs of all employee benefits and taxes for such items as unemployment compensation and social security, insofar as such cost is based on wages, salaries, or other remuneration paid to employees of the Construction Manager referred to in Subparagraphs 7.2 . 1 and 7 .2 .2 . 7 .2.4 The proportion of reasonable transportation, traveling, moving, and hotel expenses of the construction Manager or of his officers or employees incurred in discharge of duties connected with the Project. [PDFacil.Agr] February 18, 1994 12 7 .2.5 Cost including rental of all materials, supplies and equipment required to perform General Condition Items, including costs of transportation, storage and maintenance thereof. 7.2 .6 Cost of the premiums for all insurance which the Construction Manager is required to procure by this Agreement or is deemed necessary by the Construction Manager. 7.2.7 Sales, use, gross receipts or similar taxes related to the Project imposed by any governmental authority, and for which the Construction Manager is liable. 7 .2.8 Permit fees, licenses, tests, royalties, damages for infringement of patents and costs of defending suits therefor, and deposits lost for causes other than the Construction Manager' s negligence. If royalties or losses and damages, including costs of defense, are incurred which arise from a particular design, process, or the product of a particular manufacturer or manufacturers specified by the Owner or Architect/Engineer, and the Construction Manager has no reason to believe there will be infringement of patent rights, such royalties, losses and damages shall be paid by the Owner. 7 .2 .9 Losses, expenses or damages to the extent not compensated by insurance otherwise (including settlement made with the written approval of the owner) . 7.2 .10 Minor expenses such as telegrams, long=distance telephone calls, telephone service at the site, expressage, and similar petty cash items in connection with the Project. 7.2 . 11 Cost of removal of all debris. 7.2. 12 Cost incurred due to an emergency affecting the safety of persons and property. 7.2.13 Cost of data processing services required in the performance of the services outlined in Article 2 . 7.2. 14 Legal costs reasonably and properly resulting from prosecution of the Project for the Owner. 7.2 . 15 All costs directly incurred in the performance of the Project and not included in the Construction Manager's Fee as set forth in paragraph 6. 3 . ARTICLE 8 CHANGES IN THE PROJECT [PDFacil.Agr] February 18, 1994 13 8.1 The Owner, without invalidating this Agreement, may order Changes in the Project within the general scope of this Agreement consisting of additions, deletions or other revisions. All such Changes in the Project shall be authorized by Change Order. 8.2 A Change Order is written order to the Construction Manager signed by the Owner or his authorized agent issued after the execution of this Agreement, authorizing a change in the scope of the Project or services to be provided. PAYMENTS TO THE CONSTRUCTION MANAGER 9.1 The Construction Manager shall submit monthly to the Owner a statement, sworn to, if required, showing in detail all Reimbursable Costs incurred during the previous month, all amounts due Trade Contractors, and the amount of the Construction Manager's Fee due as provided in Article 6. Payment by the Owner to the Construction Manager of his statement amount shall be made within fifteen (15) days after it is received in writing. 9.2 Final payment constituting the unpaid balance of Reimbursable Costs and the Construction Manager' s Fee shall be due and payable when the Project is delivered to the Owner, ready for beneficial occupancy, or when the Owner occupies the Project, whichever event first occurs, provided that the project be then substantially completed and this Agreement substantially performed. 9.3 If the Owner should fail to pay the Construction Manager within ten (10) days after the time the payment of any amount becomes due, then the Construction Manager may, upon seven (7) additional days' written notice seek a hearing before the Owner' s governing body (EDA Commission) to resolve the dispute. Should a resolution not be reached, the disputed amount shall be placed in an escrow account until such time the dispute is resolved, or upon completion of the project, the Construction Manager may seek a judicial remedy. 9.4 Payments due but unpaid shall bear interest at the rate the Owner is paying on his construction loan or at the legal rate, whichever is higher. ARTICLE 10 INSURANCE, INDEMNITY AND WAIVER OF SUBROGATION 10.1 INDEMNITY 10. 1. 1 The Construction Manager agrees to indemnify and hold the Owner harmless from all claims for bodily injury and property [PDFacil.Agr] February 18, 1994 14 damage (other than the work itself and other property insured under Paragraph 10.4) that may arise from the Construction Manager' s operations under this Agreement. 10.1.2 The Owner shall cause all Trade Contractors to agree to indemnify the Owner and the Construction Manager and hold them harmless from all claims for bodily injury and property damage (other than property insured under Paragraph 10.4) that may arise from that contractor's operations Such provisions shall be in a form satisfactory to the Construction Manager. 10.2 CONSTRUCTION MANAGER'S LIABILITY INSURANCE 10.2.1 The Construction Manager shall purchase and name the Redevelopment Agency for the city of San Bernardino as additional insured under their Comprehensive General Liability Policy. Policy Limits shall not be less than $1, 000, 000 per occurrence, $2, 000, 000 Aggregate, and shall include coverage for completed operations, and premises operations including explosion, collapse, and underground coverage, elevators, and blanket contractual. 10.2.2 Construction Manager shall also maintain Workers ' Compensation Insurance for all employees working on the project. 10.2.3 Construction Manager shall purchase Comprehensive Auto Liability in the amount of $1, 000, 000 Combined Single Limits. A Certificate of Insurance naming the Redevelopment Agency for the City of San Bernardino shall be required. 10.2.4 All policies shall be written on an occurrence basis. If a Claims Made policy is issued, the Construction Manager shall present evidence to the Project Owner, a policy of insurance for a period of five (5) years from completion of the project, naming the Owner as an Additional Insured as their interests may appear. 10.3 OWNER'S LIABILITY INSURANCE 10.3.1 The Owner is self insured for the first $1, 000, 000 as part of the City of San Bernardino's Liability Program, with Excess Coverage to $25, 000, 000. 10.4 INSURANCE TO PROTECT PROJECT 10.4.1 The Owner has coverage for the project under the City of San Bernardino's Master Property Policy, and can provide Certificates of Insurance for the Construction Manager. 10.4.2 The Owner shall file a copy of all policies with the Construction Manager before an exposure to loss may occur. Copies of any subsequent endorsements will be furnished to the Construction Manager. The Construction Manager will be given sixty [PDFacil.Agr] February 18, 1994 15 (60) days notice of cancellation, non-renewal, or new endorsements restricting or reducing coverage. If the Owner does not intend to purchase such insurance, he shall inform the Construction Manager in writing prior to the commencement of the Work. The Construction Manager may then effect insurance which will protect the interest of himself, the Trade Contractors and their Trade Subcontractors in the Project, the cost of which shall be reimbursable pursuant to Articles 7 and 8. If the Construction Manager is damaged by failure of the Owner to purchase or maintain such insurance or to so notify the Construction Manager or if such insurance is unavailable, the Owner shall bear all reasonable costs properly attributable thereto. 10.5 PROPERTY INSURANCE LOSS ADJUSTMENT 10.5.1 Any insured loss shall be adjusted with the Owner and the Construction Manager and made payable to the owner and Construction Manager as trustees for the insureds, as their interests may appear, subject to any applicable mortgagee clause. 10.5.2 Upon the occurrence of an insured loss, monies received will be deposited in a separate account and the trustees shall make distribution in accordance with the agreement of the parties in interest, or in the absence of such agreement, in accordance with an arbitration award pursuant to Article 14. If the trustees are unable to agree on the settlement of the loss, such dispute shall also be submitted to arbitration pursuant to Article 14. ARTICLE 11 TERMINATION OF THE AGREEMENT AND OWNER'S RIGHT TO PERFORM CONSTRUCTION MANAGER'S OBLIGATIONS 11.1 TERMINATION BY THE CONSTRUCTION MANAGER 11.1.1 If the Project is stopped for a period of thirty (30) days under an order of any court or other public authority having jurisdiction, or as a result of an act of government, such as a declaration of a national emergency making materials unavailable, through no act or fault of the Construction Manager, then the Construction Manager may, upon seven (7) days ' written notice to the Owner and the Architect, terminate this Agreement and recover from the Owner payment for all work executed, the Construction Manger's Fee earned to date, and for any proven loss sustained upon any materials, equipment, tools, construction equipment and machinery, including reasonable profit and damages. 11.2 OWNER'S RIGHT TO PERFORM CONSTRUCTION MANAGER'S OBLIGATIONS AND TERMINATION BY THE OWNER FOR CAUSE [PDFacil.Agr] February 18, 1994 16 11.2.1 If the Construction manager fails to perform any of his obligations under this Agreement, the Owner may, after seven (7) days' written notice during which period the Construction Manager fails to perform such obligation, make good such deficiencies. 11.2.2 If the Construction Manager is adjudged a bankrupt, or if he makes a general assignment for the benefit of his creditors, or if a receiver is appointed on account of his insolvency, or persistently disregards laws, ordinances, rules, regulations or orders of any public authority having jurisdiction, or otherwise is guilty of a substantial violation of a provision of the Agreement, then the Owner may, without prejudice to any right or remedy and after giving the Construction Manager and his surety, if any, seven (7) days' notice, during which period Construction Manager fails to cure the violation, terminate the employment of the Construction Manager and take possession of the site and of all materials, equipment, tools, construction equipment and machinery thereon owned by the Construction Manager and may finish the Project by whatever method he may deem expedient. In such case, the Construction manager shall not be entitled to receive any further payment until the Project is finished nor shall he be relieved from his obligation assumed under Article 6. 11.3 TERMINATION BY OWNER WITHOUT CAUSE 11.3.1 If the Owner terminates this Agreement other than pursuant to Subparagraph 11.2 .2 or Subparagraph 11. 3 . 211 he shall reimburse the Construction Manager for any unpaid Reimbursable cost of the Project due him under Article 7, plus (1) the unpaid balance of the Fee computed upon the Reimbursable Costs and payments due Trade Contractors to the date of termination at the rate of the percentage named in Subparagraph 6.2 . 1 or (2) if the Construction Manager's Fee be stated as a fixed sum, such an amount as will increase the payment on account of his fee to a sum which bears the same ratio to the said fixed sum as the Reimbursable Costs and payments due Trade Contractors at the time of termination bears to a reasonable estimated Project Construction Budget when completed. The Owner shall also pay to the Construction Manager fair compensation, either by purchase or rental at the election of the Owner, for any equipment retained. In case of such termination of the Agreement the Owner shall further assume and become liable for obligations, commitments and unsettled claims that the Construction Manager has previously undertaken or incurred in good faith in connection with said Project. The Construction Manager shall, as a condition of receiving the payments referred to in this Article 11, execute and deliver all such papers and take all such steps, including the legal assignment of his contractual rights, as the Owner may require for the purpose of fully vesting in him the [PDFacil.Agr] February 18, 1994 17 rights and benefits of the Construction Manager under such obligations or commitments. 11.3.2 After the completion of the Design Phase, if the final cost estimates make the Project no longer feasible from the standpoint of the Owner, the Owner may terminate this Agreement and pay the Construction Manager his Fee in accordance with Subparagraph 6. 1. 1 plus any costs incurred pursuant to Article 7. ARTICLE 12 ASSIGNMENT AND GOVERNING LAW 12.1 Neither the Owner nor the Construction Manager shall assign his interest in this Agreement without the written consent of the other except as to the assignment of proceeds. 12.2 This Agreement shall be governed by the law of the place where the Project is located. ARTICLE 13 ARBITRATION 13.1 The Owner or the Construction Manager may agree to arbitrate any claims, disputes, or other matters in question arising out of or relating to this agreement. Such arbitration shall not be final or binding unless so agreed to in writing by the parties. This Agreement executed the day and year first written above. Approved as to legal OWNER: form and content: The Redevelopment Agency of the City of San Bernardino By: Agency Counsel By: Executive Director Approved as to program: CONSTRUCTION MANAGER: By: Millie and Severson, Incorporated Deputy Director By: President [PDFacil.Agr] February 18, 1994 18 EXHIBIT "All GENERAL CONDITIONS ITEMS TO BE PROVIDED BY CONSTRUCTION MANAGER 1. Included in the General Conditions Cost to be provided under the agreement are: a. Storm control (exclusive of erosion control plan work) ; b. Telephone and facsimile; C. Office supplies; d. General hauling; e. Safety; f. Dust Control-general; g. Storage shed. 2 . Excluded are: a. Plans/Document reproduction; b. Temporary power facilities in electrical; C. Permits and Bond; d. Continuous Clean-up e. Disposal, haul away, and dump fees; f. Dust/Erosion Control Plan by (earthwork subcontractor) ; g. Facilities for Agency personnel; h. Temporary water meter (to be provided by Trade Plumber) ; i. Layout/Survey/Inspection/Testing; j . Cost of weekly power usage; k. Temporary water; 1. Site fencing. [PDFacil.Agr] February 18, 1994 19