Attachment B
FIXED PRICE
DESIGN BUILD AGREEMENT
Attachment B
TABLE OF CONTENTS
Article Name Page
Article 1 Scope of Work ................................................................................................. 2 Article 2 Contract Documents ........................................................................................ 2 Article 3 Interpretation and Intent .................................................................................. 2 Article 4 Ownership of Work Product ............................................................................. 3 Article 5 Contract Time .................................................................................................. 4 Article 6 Contract Price .................................................................................................. 7 Article 7 Procedure for Payment ................................................................................... 8 Article 8 Termination for Convenience ........................................................................ 10 Article 9 Representatives of the Parties ..................................................................... 10 Article 10 Bonds and Insurance ................................................................................... 11 Article 11 Other Provisions ........................................................................................... 12 Attachment B
1 Fixed Price Design Build Agreement
This AGREEMENT is made as of the day of
in the year of 20 25, by and between the following parties, for services in connection with the Project identified below.
OWNER:
City of Santa Maria
Public Works/Engineering
110 South Pine Street, Suite 221
Santa Maria, CA 93458
DESIGN-BUILDER:
(Name and address)
Structural Preservation Systems LLC
11800 Monarch St. Garden Grove, CA 92841
(714) 891-9080
PROJECT:
Town Center E. Parking Structure Rehabilitation 2025
Town Center East
Santa Maria, CA 93454
In consideration of the mutual covenants and obligations contained herein, Owner and Design -Builder agree as set forth herein.
Attachment B
2 Article 1
Scope of Work
1.1 Design-Builder shall perform all design and construction services, and provide all material, equipment, tools and labor, necessary to complete the Work described in and reasonably inferable from the Contract Documents.
Article 2
Contract Documents
2.1 The Contract Documents are comprised of the following:
2.1.1 All written modifications, amendments , minor changes and Change Orders to this Agreement issued in accordance with the General Conditions of Contract;
2.1.2 The Basis of Design Documents, including the Owner’s Project Criteria, Design -Builder’s Proposal and the Deviation List, if any, contained in the Design -Builder’s Proposal, which shall specifically identify any and all deviations from Owner’s Project Criteria;
2.1.3 This Agreement, including all exhibits and attachments, executed by Owner and Design - Builder (List for example, performance standard requirements, performance incentive requirements, markup exhibits, allowances, or unit prices);
2.1.4 The General Conditions of Contract; and
2.1.5 Construction Documents prepared and approved in accordance with Section 2.4 of the General Conditions of Contract.
2.1.6 Any conflict or inconsistency between the terms or conditions of the Contract Documents shall be resolved by the following descending order of precedence (1 takes precedence over 2, 2 over 3, etc.):
i. Change Orders to the Agreement
ii. Agreement between Owner and Design Builder inclusive of exhibits in the following descending order of precedence:
a. Owner’s Project Criteria
b. General Conditions between owner and Design Builder
c. Supplemental General Conditions
d. Technical Specifications
e. Detailed Drawings
f. Drawings
2.2 In the event there exists a conflict, inconsistency, or ambiguity within the terms and con ditions of one of the Contract Document categories set forth above, that is not resolved by application of Article 2.1, the more stringent shall be deemed to have been intended.
Attachment B
3 Article 3
Interpretation and Intent
3.1 Design-Builder and Owner, prior to execution of the Agreement, shall carefully review all the Contract Documents, including the various documents comprising the Basis of Design Documents, for any conflicts or ambiguities. Design-Builder and Owner will discuss and resolve any identified conflicts or ambiguities prior to execution of the Agreement.
3.2 The Contract Documents are intended to permit the parties to complete the Work and all obligations required by the Contract Documents within the Contract Time(s) for the Contract Price. The Contract Documents are intended to be complementary and interpreted in harmony so as to avoid conflict, with words and phrases interpreted in a manner consistent with construction and design industry standards. In the event inconsistenc ies, conflict s, or ambiguities between or among the Contract Documents are discovered after execution of the Agreement, Design -Builder and Owner shall attempt to resolve any ambiguity, conflict or inconsistency informally, recognizing that the Contract Documents shall take precedence in the order in which they are listed in Section 2.1 hereof. Conflicts existing within Section 2.1.2 shall be resolved by giving precedence first to the Deviation List, if any, then the Owner’s Project Criteria, and then the Design-Builder’s Proposal.
3.3 Terms, words and phrases used in the Contract Documents, including this Agreement, shall have the meanings given them in the General Conditions of Contract.
3.4 If Owner’s Project Criteria contain design specifications: (a) Design -Builder shall be entitled to reasonably rely on the accuracy of the information represented in such design specifications and their compatibility with other information set forth in Owner’s Project Criteria, including any performance specifications; and (b) Design -Builder shall be entitled to an adjustment in the Contract Price and/or Contract Time(s) to the extent Design -Builder’s cost and/or time of performance have been adversely impacted by such inaccurate design specification.
3.5 The Contract Documents form the entire agreement between Owner and Design -Builder and by incorporation herein are as fully binding on the parties as if repeated herein. No oral representations or other agreements have been made by the parties except as specifically stated in the Contract Documents.
Article 4
Ownership of Work Product
4.1 Work Product. All drawings, specifications and other documents and electronic data , including such documents identified in the General Conditions of Contract, furnished by Design -Builder to Owner under this Agreement (“Work Product”) are deemed to be instruments of service and Design -Builder shall retain the ownership and property interests therein, including but not limited to any intellectual property rights, copyrights and/or patents, subject to the provisions set forth in Sections 4.2 through 4.5 below.
4.2 Owner’s Limited License Upon Project Completion and Payment in Full to Design-Builder.
Upon Owner’s payment in full for all Work performed under the Contract Documents, Design -Builder shall grant Owner a limited license to use the Work Product in connection with Owner’s occupancy of the Project, conditioned on Owner’s express understanding that its alteration of the Work Product without the involvement of Design -Builder is at Owner’s sole risk and without liability or legal exposure to Design - Builder or anyone working by or through Design -Builder, including Design Consultants of any tier (collectively the “Indemnified Parties ”), and on the Owner’s obligation to provide the indemnity set forth in Section 4.5 below.
Attachment B
4 4.3 Owner’s Limited License upon Owner’s Termination for Convenience or Design -Builder’s Election to Terminate. If Owner terminates this Agreement for its convenience as set forth in Article 8 hereof, or if Design -Builder elects to terminate this Agreement in accordance with Section 11.4 of the General Conditions of Contract, Design -Builder shall, upon Owner’s payment in full of the amounts due Design-Builder under the Contract Documents, grant Owner a limited license to use the Work Product to complete the Project and subsequently occupy the Project, and Owner shall thereafter have the same rights as set forth in Section 4.2 above, conditioned on the following:
4.3.1 Use of the Work Product is at Owner’s sole risk without liability or legal exposure to any Indemnified Party and on the Owner’s obligation to provide the indemnity set forth in Section 4.5 below; and
4.3.2 Owner agrees to pay Design-Builder an additional sum equal to the fair market value of the Work Product for the right to use such Work Product to complete the Project and subsequently use the Work Product in accordance with Section 4.2. The fair market value shall be mutually agreed upon by the Owner and Design-Builder, acting reasonably, and may be determined based on the recommendation of the Engineer of Record or another qualified independent consultant, prevailing market rates for similar services, or other reasonable valuation methods.
4.4 Owner’s Limited License upon Design-Builder's Default. If this Agreement is terminated due to Design-Builder's default pursuant to Section 11.2 of the General Conditions of Contract , then Design - Builder grants Owner a limited license to use the Work Product to complete the Project and subsequently occupy the Project, and Owner shall thereafter have the same rights and obligations as set forth in Section
4.2 above. Notwithstanding the preceding sentence, if it is ultimately determined tha t Design-Builder was not in default, Owner shall be deemed to have terminated the Agreement for convenience, and Design - Builder shall be entitled to the rights and remedies set forth in Section 4.3 above.
4.5 Owner’s Indemnification for Use of Work Produc t. If Owner is required to indemnify any Indemnified Parties based on the use or alteration of the Work Product under any of the circumstances identified in this Article 4, Owner shall defend, indemnify and hold harmless such Indemnified Parties from and against any and all claims, damages, liabilities, losses and expenses, including attorneys’ fees, arising out of or resulting from the use or alteration of the Work Product.
Article 5
Contract Time
5.1 Date of Commencement. The Work shall commence within five (5) working days of Design - Builder’s receipt of Owner’s Notice to Proceed (“Date of Commencement”) unless the parties mutually agree otherwise in writing.
5.2 Final Completion.
5.2.1 Final Completion of the entire Work shall be achieved no later than 305 calendar days after the Date of Commencement (“Scheduled Final Completion Date”).
5.2.2 All of the dates set forth in this Article 5 (collectively the “Contract Time(s)”) shall be subject to adjustment in accordance with the General Conditions of Contract.
5.3 Time is of the Essence. Owner and Design-Builder mutually agree that time is of the essence with respect to the dates and times set forth in the Contract Documents.
Attachment B
5 Design-Builder understands that if Final Completion is not achieved by the Final Completion Date, Owner will suffer damages which are difficult to determine and accurately specify. Design-Builder shall pay to Owner One Thousand Two Hundred Dollars ($1,200), as liquidated damages for each calendar day that Final Completion is delayed beyond the above-referenced number of days.
5.5 Any liquidated damages assessed pursuant to this Agreement shall be in lieu of all liability for any and all extra costs, losses, expenses, claims, penalties and any other damages, whether special or consequential, and of whatsoever nature incurred by Owner which are occasioned by any delay in achieving the Contract Time(s).
Owner and Design-Builder agree that the maximum aggregate liability Design-Builder has for any liquidated damages that may be assessed under this Agreement for failure to achieve the Contract Time(s) shall be 5% of the final contract value.
5.6 Owner’s Review Time . The parties have established the following maximum and minimum amount of time for the Owner to review Design Submissions and the Project Schedule or any updates thereto unless the parties agree in writing otherwise.
5.6.1 The Owner shall have a minimum of 10 working days of receipt by the Owner to review all Design Submissions, the Project Schedule, and any updates thereto.
5.6.2 The Owner shall review and (if applicable) provide a response to Design -Builder on all Design Submissions, the Project Schedule, and any updates thereto within 10 working days of receipt by the Owner.
Article 6
Contract Price
6.1 Contract Price. Owner shall pay Design -Builder in accordance with Article 6 of the General Conditions of Contract the sum of Three Million Sixty One Thousand Nine Hundred and Eighty Dollars ($ 3,061,980.00)
(“Contract Price”), subject to adjustments made in accordance with the General Conditions of Contract.
Unless otherwise provided in the Contract Documents, the Contract Price is deemed to include all sales, use, consumer and other taxes mandated by applicable Legal Requirements.
6.2 Markups for Changes. If the Contract Price requires an adjustment due to changes in the Work, and the cost of such changes is determined under Section 9.4.1 of the General Conditions of Contract, the following markups shall be allowed on such changes:
6.2.1 For additive Change Orders, including additive Change Orders arising f rom both additive and deductive items, Design-Builder shall receive a Fee of fifteen percent (15%) applied only to the net additional direct costs actually incurred by Design-Builder in performing the Change Order.
Direct costs shall exclude subcontractor or supplier overhead and profit, contingency, markup, or other similar charges already included in the underlying cost, and the Design -Builder’s Fee shall not be applied to any amounts that already include overhead or profit, so as to avoid duplication of compensation.
6.2.2 For deductive Change Orders, including deductive Change Orders arising from both additive and deductive items, the deductive amounts shall include an amount equal to the direct costs of the net reduction (which amount will account for a reduction associated with Design - Builder’s Fee).
Attachment B
6 6.3 Allowance Items and Allowance Values.
6.3.1 Any and all Allowance Items, as well as their corresponding Allowance Values, are set forth in an Exhibit hereto.
6.3.2 Design-Builder and Owner have worked together to review the Allowance Items and Allowance Values based on design information then available to determine that the Allowance Values constitute reasonable estimates for the Allowance Items. Design-Builder and Owner will continue working closely together during the preparation of the design to develop Construction Documents consistent with the Allowance Values. Nothing herein is intended in any way to constitute a guarantee by Design-Builder that the Allowance Item in question can be performed for the Allowance Value.
6.3.3 No work shall be performed on any Allowance Item without Design -Builder first obtaining in writing advanced authorization to proceed from Owner. Owner agrees that if Design-Builder is not provided written authorization to proceed on an Allowance Item by the date set forth in the Project schedule, due to no fault of Design-Builder, Design-Builder may be entitled to an adjustment of the Contract Time(s) and Contract Price.
6.3.4 The Allowance Value for an Allowance Item includes the direct cost of labor, materials, equipment, transportation, taxes and insurance associated with the applicable Allowance Item. All other costs, including design fees, Design -Builder’s overall project management and general conditions costs, overhead and fee, are deemed to be included in the original Contract Price, and are not subject to adjustment, regardless of the actual amount of the Allowance Item.
6.3.5 Whenever the actual costs for an Allowance Item is more than or less than the stated Allowance Value, the Contract Price shall be adjusted accordingly by Change Order, subject to Section 6.3.4. The amount of the Change Order shall reflect the difference between actual costs incurred by Design-Builder for the particular Allowance Item and the Allowance Value.
Article 7
Procedure for Payment
7.1 Progress Payments.
7.1.1 Design-Builder shall submit to Owner on the 25th day of each month, beginning with the first month after the Date of Commencement, Design -Builder’s Application for Payment in accordance with Article 6 of the General Conditions of Contract.
7.1.2 Owner shall make payment within ten (10) working days aft er Owner’s receipt of each properly submitted and accurate Application for Payment in accordance with Article 6 of the General Conditions of Contract, but in each case less the total of payments previously made, and less amounts properly withheld under Section 6.3 of the General Conditions of Contract.
7.2 Retainage on Progress Payments.
7.2.1 Owner will retain five percent (5%) of each Application for Payment provided, however, that when fifty percent (50%) of the Work has been satisfactorily completed by Design-Builder and Design-Builder is otherwise in compliance with its contractual obligations, Owner will not retain any additional retention amounts from Design -Builder’s subsequent Applications for Payment. Owner will also reasonably consider reducing retainage for Work completed early in the Project.
Attachment B
7 7.2.2 Within fifteen (15) days after Substantial Completion of the entire Work or, if applicable, any portion of the Work, pursuant to Section 6.6 of the General Conditions of Contract, Owner shall release to Design -Builder all retained amounts relating, as applicable, to the entire Work or completed portion of the Work, less an amount equal to (a) the reasonable value of all remaining or incomplete items of Work as noted in the Certificate of Substa ntial Completion and (b) all other amounts Owner is entitled to withhold pursuant to Section 6.3 of the General Conditions of Contract.
7.3 Final Payment. Design-Builder shall submit its Final Application for Payment to Owner in accordance with Section 6.7 of the General Conditions of Contract. Owner shall make payment on Design- Builder’s properly submitted and accurate Final Application for Payment forty (40) days after notice of completion of filing with the county , provided that Design -Builder has satis fied the requirements for final payment set forth in Section 6.7.2 of the General Conditions of Contract.
7.4 Record Keeping and Finance Controls. With respect to changes in the Work performed on a cost basis by Design -Builder pursuant to the Contract Doc uments, Design -Builder shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management, using accounting and control systems in accordance with generally accepted accounting principles and as may be provided in the Contract Documents. During the performance of the Work and for a period of three (3) years after Final Payment, Owner and Owner’s accountants shall be afforded access to, and the right to audit from time -to-time, upon reasonable notice, Design -Builder’s records, books, correspondence, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to changes in the Work performed on a cost basis in accordance with the Contract Documents, all of which Design -Builder shall preserve for a period of three (3) years after Final Payment. Such inspection shall take place at Design- Builder’s offices during normal business hours unless another location and time is agreed to by the parties.
Any multipliers or markups agreed to by the Owner and Design -Builder as part of this Agreement are only subject to audit to confirm that such multiplier or markup has been charged in accordance with this Agreement, with the composition of such multiplier or markup not being subject to audit.
Article 8
Termination for Convenience
8.1 If Design-Builder is terminated for convenience pursuant to Section 11.6 of the General Conditions of Contract, and the parties have agreed to a payment to Design-Builder in the case of such termination for convenience, Owner shall pay Design-Builder for the following in addition to the amount set forth in Section
11.6.1 of the General Conditions of Contract:
The fair and reasonable sums for overhead and profit on the sum of items set forth in Section 11.6.1 of the General Conditions of Contract.
8.2 The total amount to be paid to Design -Builder, exclusive of costs described in Section 11.6.1.2 of the General Conditions of Contract, shall not exceed the Contract Price.
Article 9
Representatives of the Parties
9.1 Owner’s Representatives.
Attachment B
8 9.1.1 Owner designates the individual listed below as its Senior Representative ("Owner’s Senior Representative"), which individual has the authority and responsibility for avoiding and resolving disputes under Section 10.2.3 of the General Conditions of Contract: (Identify individual’s name, title, address and telephone numbers.)
Manny Guzman
Principal Engineer
110 South Pine St suite 221, Santa Maria CA 93458
[email protected]
Mobile: 805-800-9171
Office: 805-925-0951 ext1525
9.1.2 Owner designates the individual listed below as its Owner’s Representative, which individual has the authority and responsibility set forth in Section 3.4 of the General Conditions of Contract: (Identify individual’s name, title, address and telephone numbers.)
Manny Guzman
Principal Engineer
110 South Pine St suite 221, Santa Maria CA 93458
[email protected]
Mobile: 805-800-9171
Office: 805-925-0951 ext1525
9.2 Design-Builder’s Representatives.
9.2.1 Design-Builder designates the individual listed below as its Senior Representative ("Design-Builder’s Senior Representative"), which individual has the authority and responsibility for avoiding and resolving disputes under Section 10.2.3 of the General Conditions of Contract: (Identify individual’s name, title, address and telephone numbers.)
Jeff Binder
Director of Preconstruction
[email protected]
Mobile: 201-951-5345
9.2.2 Design-Builder designates the individual listed below as its Design -Builder’s Representative, which individual has the authority and responsibility set forth in Section 2.1.1 of the General Conditions of Contract: (Identify individual’s name, title, address and telephone numbers.)
Jeff Binder
Director of Preconstruction
[email protected]
Mobile: 201-951-5345
Article 10
Bonds and Insurance
10.1 Insurance. Design-Builder and Owner shall procure the insurance coverages set forth in the Insurance Exhibit attached hereto and in accordance with Article 5 of the General Conditions of Contract.
10.2 Bonds and Other Performance Security. Design-Builder shall provide the following performance bond and labor and material payment bond or other performance security:
Attachment B
9 Performance Bond. In the amount equal to one hundred (100) percent of the contract price executed in the form in Exhibit B.
Warranty Bond. In the amount equal to ten (10) percent of the contract price executed in the form in Exhibit B.
Payment Bond. In the amount equal to one hundred (100) percent of the contract price executed in the form in Exhibit B.
In executing this Agreement, Owner and Design -Builder each individually represents that it has the necessary financial resources to fulfill its obligations under this Agreement, and each has the necessary corporate approvals to execute this Agreement, and perform the services described herein.
OWNER: DESIGN-BUILDER:
City of Santa Maria Structural Preservation System, LLC
(Signature) (Signature)
(Printed Name) (Printed Name)
(Title) (Title)
Date: Date: