Contract No. 10736 (CCS)
SP2456
Santa Monica®
SUSTAINABLE WATER INFRASTRUCTURE PROJECT
DESIGN/BUILD AGREEMENT
by and between
The City of Santa Monica
and
KIEWIT INFRASTRUCTURE WEST CO.
DESIGN/BUILD AGREEMENT
TABLE OF CONTENTS
Page
1.0 GENERAL PROVISIONS ..1
1.1 Definitions..
1.2 Public Work of Improvement. ...2
1.3 Trust and Confidence... ...2
1.4 Standard of Care.. ..2
1.5 Compliance with State Water Resources Control Board Funding ...2
1.6 Applicable Laws... ....3
1.7 Key Personnel ..... ..4
1.8 Design Professionals, Subcontractors..
1.9 City Representative........
2.0 COMPENSTATION
2.1 Contract Sum
2.2 Adjustments to Contract Price 6
2.3 Design/Builder's Warranty of Contract Price. 8
2.4 Construction Contingency. . 8
2.5 Savings. 9
3.0 TIME
3.1 Time of Essence
3.2 Notice to Proceed
3.3 Contract Time
3.4 Compensation for Delay.....
3.5 Liquidated Damages to the City.
3.6 Construction Schedules
3.7 Submittal Schedules..
3.8 Adjustment of the Schedules...
3.9 Activity Durations..
3.10 City Review Periods
3.11 Governmental Authority Review Periods 14
3.12 Schedule Updates,. 14
3.13 Responsibility for Schedules... .....15
3.14 Fast-Track Design and Construction. 15
3.15 Condition of Payment. 15
4.0 PRECONSTRUCTION PHASE . 16
4.1 Bridging Documents.. 16
4.2 Intentionally Left Blank .. 17
4.3 Design Documents, Construction Documents .17
4.4 Cost Estimating ...22
4.5 Bidding, Purchasing ...24
4.6 Design/Builder's GMP Amendment Proposal ..26
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4.6 Design/Builder's GMP Amendment Proposal 26
4.7 Negotiation of GMP Amendment. 28
4.8 Termination Without GMP Amendment 28
5.0 CONSTRUCTION PHASE. .28
5.1 General.. 28
6.0 OPERATIONS PHASE 29
6.1 Operations Phase Services.. 29
6.2 Assistance in Transition ... .29
7.0 COST (S) OF WORK 29
7.1 Labor Costs 30
7.2 SubContractor, Design Professional Costs 30
7.3 Costs of Materials and Equipment Incorporated into the Work.... . 30
7.4 Costs of Other Materials and Equipment, Temporary Facilities and Related Items .. .31
7.5 Miscellaneous Costs .32
7.6 Other Costs .33
7.7 Emergencies 33
7.8 Warranty Inspections, Commissioning 33
8.0 COSTS NOT TO BE REIMBURSED. 34
9.0 DISCOUNTS, REBATES AND REFUNDS 36
10.0 DESIGN/BUILDER FEE 36
11.0 PAYMENTS... 36
11.1 Schedule of Values for Construction Phase... 36
11.2 Progress Payments . 37
11.3 Final Payment.. .44
12.0 INTENTIONALLY LEFT BLANK .45
13.0 INDEMNITY, INSURANCE, WAIVER OF CONSEQUENTIAL DAMAGES, LIMITATION OF DESIGN/BUILDER LIABILITY, RISK OF LOSS ... 45
Indemnity. .45
13.2 Insurance 46
13.3 Waiver of Consequential Damages.... 46
13.4 Intentionally Left Blank 47
13.5 Risk of Loss. . 47
14.0 MISCELLANEOUS PROVISIONS 47
14.1 Governing Law. .47
14.2 Titles for Convenience... 47
14.3 Severability. .47
14.4 Successors and Assigns. 47
14.5 Conflicts. 47
14.6 Interpretation 48
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14.8 Entire Contract. ..48
15.0 NOTICES.. 48
15.1 Delivery. 48
15.2 Addresses.. 48
15.3 Change in Address. 49
16.0 GOVERNMENTAL POWERS .49
17.0 EXHIBITS 50
Exhibit 1: Bridging Documents... 50
Exhibit 2: General Conditions... 50
Exhibit 3: Key Personnel (A. Design, B. Construction)... 50 Exhibit 4: Permit List.. 50
Exhibit 5: Preconstruction and Preliminary Construction Schedule.. 50 Exhibit 6: Budget for Pre-Construction 50
Exhibit 7: Rate Schedule... ...50
Exhibit 8: Preliminary Information Reports.. 50
Exhibit 9 Standard Forms...... 50
Exhibit 10 Sub-contractor Contract (executed with Ex. 15: GMP Amendment for Construction). ..50
Exhibit 11 Living Wage Ordinance Certification...
Exhibit 12 Design/Builder Insurance Requirements... 50
Exhibit 13 General Requirements 50
Exhibit 14 Sustainable Building Administrative Instruction.. 50 Exhibit 15 GMP Amendment for Construction (to be included at the time of GMP Amendment) 50
Exhibit 16 City of Santa Monica City Wide Soil Management Plan.. 50 Exhibit 17 BIM Standards. 50
Exhibit 18 Operations Phase Service. 50
Exhibit 19 California State Water Board Construction Installment Sale Contract No.
D17-01006 50
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Contract No. 10736 (CCS)
SP2456
DESIGN/BUILD AGREEMENT
By and Between
The City of Santa Monica
and
Kiewit Infrastructure West Co.
THIS DESIGN/BUILD AGREEMENT ("Contract") is entered into this 190 _2018 ("Effective Date") by and between the City of Santa Monica, a municipal corporation ("City"), located at 1685 Main Street, Santa Monica, California, and ("Design/Builder"), located at 10704 Shoemaker
Ave., Santa Fe Springs, California.
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City.
B. Design/Builder is a corporation duly organized in the state of Delaware and. in good standing in the State of California, License Number 433176. Design/Builder represents that it is duly licensed by the State of California and has the background, knowledge, experience and expertise to perform the obligations set forth in this Contract.
C. City and Design/Builder enter into this Contract for the purpose of retaining Design/Builder to provide design services, preconstruction services, construction services, and maintenance and operations services, utilizing the Progressive Design-Build delivery system and an "open-book" methodology to establish the Contract Price for the Sustainable Water Infrastructure Project (the "Project") as set forth in Exhibit "1".
NOW THEREFORE, in consideration of the mutual promises and undertakings hereinatter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, it is mutually agreed by and between the undersigned parties as follows:
1.0 GENERAL PROVISIONS
1.1 Definitions.
Capitalized terms shall have the meanings set forth in Exhibit "2" (General Conditions) unless otherwise provided herein. All references to Design/Builder in this Contract shall mean and refer to Design/Builder and its Subcontractors and Design Professionals unless otherwise expressly indicated within the text.
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1.2 Scope of Work.
Design/Builder shall complete all Work in accordance with the Contract Documents.
1.3 Trust and Confidence.
Design/Builder accepts the obligation of trust and confidence established between it and City by this Contract. The Design/Builder agrees to furnish the architectural, engineering, and construction services set forth in this Contract, furnish efficient business administration, sufficient senior level management and other qualified personnel, and use good-faith and diligent efforts to complete the Project consistent with the interests of the City.
Design/Builder shall act as the City's fiduciary in respect to all matters pertaining to design, cost reporting and pricing, however, the affirmation by Design/Builder of its fiduciary duty hereinabove shall not be interpreted as conferring upon City the right to unreasonably demand the furnishing of enhancements to the Work that are not called for, either expressly or impliedly, under this Contract or the other Contract Documents.
Notwithstanding anything in Contract to the contrary, the Design/Builder's relationship with the City shall be contractual and not fiduciary.
1.4 Standard of Care.
Design/Builder shall perform all its obligations under the Contract Documents in accordance with the ordinary standard of care applicable to the performance by design/builders of public works projects with similar size, scope and complexity as the Project. Where approval by the City is required, it is understood to be general approval only and does not relieve the Design/Builder's responsibility for errors and omissions; compliance with all Applicable Laws; and exercising the standard of care as stated in this paragraph applicable to the performance of professional services and Work required by the Contract Documents. In the event portions of the Work teare ed by
Project are to be performed in accordance with a specific performance standard, the Work shall be performed so as to achieve such standard.
1.5 Compliance with State Water Resources Control Board Funding.
The City and California State Water Resources Control Board ("CSWRCB") have entered into that certain Construction Installment Sale Contract, Sustainable Water Infrastructure Project ("SWIP"), Project No. C-068211- 110, Contract No. D17-01006, as attached Exhibit "19" (California State Water Board Construction Installment Sale Contract No. D17-01006) ("Funding Contract") hereto, wherein the CSWRCB has agreed to provide City financial assistance to construct the Project in exchange for City's compliance with the terms and conditions of the Funding Contract.
Design/Builder shall provide all services within this Contract to the City in compliance with the City's express obligations for the Work, if any, under the Funding Contract. Notwithstanding the foregoing, in the event of a
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conflict between the Funding Contract and this Contract, this Contract shall control. Design/Builder shall comply with reporting requirements of both California Labor Code and Davis-Bacon Act. For labor wages, higher or stricter requirements govern.
1.6 Applicable Laws.
Design/Builder shall give all required notices and comply with all Applicable Laws and lawful orders of any Governmental Authorities including, without limitation, those laws, ordinances, rules, regulations and lawful orders relating to safety, prevailing wage, Hazardous Substances, and equal employment opportunities; pay all local, state and federal payroll taxes; and pay all benefits, insurance, taxes and contributions for Social Security and Unemployment Insurance which are measured by wages, salaries or other remuneration paid to Design/Builder's employees. Upon Citys written request, Design/Builder shall furnish evidence reasonably satisfactory to City that any and all of the foregoing obligations have been fulfilled. Without limiting the foregoing, Design/Builder shall comply with, and shall require its Design Professionals and Subcontractors to comply with, provisions of City's Municipal Code, including, without limitation, the prevailing wage requirements of Santa Monica Municipal Code Section 7.28.010, and the Living Wage Ordinance of Santa Monica Municipal Code Section 4.65.010, as may be amended from time to time, and with applicable Federal or State prevailing wage requirements, including, without limitation, California Labor Code section 1776, in accordance with the sources of funding for this Project.
In accordance with State of California Senate Bill No. 854, PUBLIC WORKS CONTRACTOR REGISTRATION PROGRAM (SB 854):
No contractor or subcontractor may be listed on a bid proposal for a public works project (submitted on or after March 1, 2015) unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5 [with limited exceptions from this requirement for bid purposes only under Labor Code section 1771.1(a)].
No contractor or subcontractor may be awarded a contract for public work on a public works project (awarded on or after April 1, 2015) unless registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5.
The Project is subject to compliance monitoring and enforcement by the Department of Industrial Relations.
As of April 1, 2015, Contractors and Subcontractors must furnish electronic certified payroll records to the Labor Commissioner (State of California, Division of Labor Standards Enforcement).
Please see the DIR website for complete details and actions. It is the responsibility of the Contractor to ensure all DIR requirements and
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regulations are met and stay current. For more information on Senate Bill No. 854, see http://www.dir.ca.gov/Public-Works/SB854.html.
1.7 Key Personnel.
1.7.1 Design/Builder's Representative.
Design/Builder hereby designates Tony Joyce, Vice President, as he Design/Bullder's Representative, who shall be deemed to b Design/Builder's agent with express authority to bind Desian/Builde with respect to all matters requiring Design/Builder's approval or authorization.
1.7.2 Key Personnel.
Design/Builder shall provide management for the Project using the Key Personnel listed in the organization chart attached hereto as Exhibit "3" (Key Personnel). Exhibit "A" (Design Personnel) shall be the Design-Build personnel during the Preconstruction Phase.
Exhibit "3B" (Construction Personnel) shall list added personnel for the Construction Phase prior to execution of the GMP Amendment.
Neither Design/Builder's Representative nor any Key Personnel shall be transferred to any other Project nor any of his/her responsibilities reassigned without the written approval of City, which approval shall not be unreasonably withheld. Design/Builder's Representative and any Key Personnel shall be replaced if, in the sole discretion of City, he/she has failed to perform to City's reasonable expectations. Any individual designated as a replacement of Design/Builder's Representative or Key Personnel shall require the prior Approval of City, which Approval will not be unreasonably withheld.
1.8 Design Professionals, Subcontractors.
1.8.1 Selection.
All professional services and construction performed under this Contract shall be performed by independent, qualified and duly licensed architects, engineers and contractors retained by Design/Builder pursuant to written contracts. Design/Builder shall have the right upon prior written notice to City, and approval by City, which shall not be unreasonably withheld, to engage Subcontractors to perform selected portions of the Work on a design/build basis. In order to integrate the Project with the City's existing SCADA system, Design/Builder shall engage and contract with Vertech Industrial Systems, LLC as a Subcontractor to the Design/Builder for automation integration services.
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1.8.2 Review of Contracts.
City has reviewed and approved as to form but not content Design/Builder's standard form of contract for Subcontractors attached hereto as Exhibit "10" (Sub-Contractor Contract). All contracts entered into between Design/Builder and its
Subcontractors shall be in accordance with the pre-printed terms and conditions set forth therein. Modifications to such approved pre- printed terms and conditions will be allowed if approved by City, with such approval not to be unreasonably withheld. Design/Builder shall remain solely responsible, notwithstanding such review or approval by City, for the sufficiency, enforceability, completeness and compliance with the Contract Documents of all written contracts entered into between Design/Builder and its Subcontractors.
1.9 City Representative
The City shall designate an authorized representative or representatives to act on the City's behalf with respect to the Project. City may replace, or add additional persons to act as, its representatives(s) on written notice to the Design/Builder. Until otherwise so notified, the person currently designated as the City's representative is: Curtis Castle and Selim Eren.
2.0 COMPENSATION
2.1 Contract Price.
The Contract Price (also referred to herein as the Guaranteed Maximum Price or "GMP") shall consist of the Preconstruction GMP plus the Construction GMP and the Operations GMP, if the GMP Amendment is executed in accordance with Section 2.2, below. The Contract Price shall be developed on an "open-book" basis.
2.1.1 Preconstruction GMP.
The total compensation to Design/Builder for Work performed by Design/Builder during the Preconstruction Phase in accordance with Section 4.0 shall not exceed the Guaranteed Maximum Price (also referred to herein as the "Preconstruction GMP") of SEVEN MILLION NINETY ONE THOUSAND DOLLARS ($7,091,000) and shall be paid in accordance with the Payment Schedule set forth in Exhibit "6" (Budget for Pre-Construction).
2.1.2 Construction GMP.
The total compensation to Design/Builder for Work performed by Design/Builder during the Construction Phase in accordance with Section 5.0 of this Contract shall not exceed the Guaranteed Maximum Price (also referred to herein as "the Construction GMP")
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to be agreed upon by City and Design/Builder, based upon the following:
2.1.2.1 Design Services. Lump sum fixed fee for engineering, professional and design services (collectively, "Design Services" performed during the Construction Phase;
plus,
2.1.2.2 Costs of Work. Reimbursement of Costs of Work,
excluding Design Services as provided in Section 7.0,
below; plus,
2.1.2.3 Design/Builder Fee. A Design/Builder Fee as provided in Section 10.0, below; plus
2.1.2.4 Savings. Design/Builder's share of Savings, if any, earned and due pursuant to Section 2.5, below; plus
2.1.2.5 Construction Contingency. A Construction
Contingency as provided in Section 2.4, below.
2.1.3 Operations GMP.
The total compensation to Design/Builder for Work performed by Design/Builder during the Operations Phase in accordance with Section 6.0 shall not exceed the Guaranteed Maximum Price (also referred to herein as "the Operations GMP") to be agreed upon by City and Design/Builder as part of the GMP Amendment.
2.2 Adjustments to Contract Price.
There shall be no adjustment to the Contract Price except as authorized by 1, below, or (il) the
accordance with Section 4.6, below, which shall be subject to Council approval and appropriation, in its sole and absolute discretion. All Costs of Work in excess of the Contract Price, as adjusted by Change Order or GMP Amendment, shall be borne solely by Design/Builder, without reimbursement by City.
2.2.1 Compensation for Extra or Deleted Work. The Contract Price shall be adjusted (either by addition or credit) for Changes in the Work involving Extra Work or Deleted Work on the basis of both of the following:
(i) The sum of Costs) of Work as provided in Section 7.0 to be added (for Extra Work) or credited (for Deleted Work);
An additional sum (for Extra Work) or deductive credit (for
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Deleted Work) based on Design/Builder Markup and
Subcontractors/Sub-subcontractor Markups allowable
pursuant to Section 2.2.2; and
(iii) Lump sum for Design Professional Services based upon either:
Lump Sum. Design/Builder and the City shall attempt in good faith to negotiate a lump sum amount for Extra Work or
Deleted Work. If the parties fail to negotiate a lump sum amount prior to the date such services are first provided; or Direct Personnel Expense. If the parties are unable to
negotiate a lump sum price and the City instructs the
Design/Builder to proceed with performance of the Extra or Deleted Work, then the Design/Builder's compensation shall be computed as follows:
For employee's time expended, remuneration shall be
computed in accordance with Exhibit "7" (the Rate
Schedule), without any markup or multiplier. Such Rate
Schedule will be subject to adjustment on the anniversary following the year in which the Contract is tully executed, a mutually agreed between the Design/Builder and the City, to reflect rates charged by the Design/Builder for comparable services provided to its other municipal or institutional clients.
Direct Personnel Expense is defined as the direct salaries of personnel engaged on the Project. Design/Builder
understands, acknowledges and agrees that the rates
included in Exhibit "7" are all-inclusive and Design-Builder shall not be entitled to add any mark-ups or fees under Section 2.2.2.
2.2.2 Design/Builder Markup and Subcontractors/Sub-subcontractor Markups Design/Builder Markup and Subcontractors/Sub-
subcontractor Markups set forth herein are the full amount of compensation to be added for Extra Work or to be subtracted for Deleted Work that is attributable to overhead (direct and indirect) and profit of Design/Builder and of its Subcontractors and Sub- subcontractors, of every Tier. Design/Builder Markup and Subcontractors/Sub-subcontractor Markups, which shall not be compounded, shall be computed as set forth, below:
i. Self-Performed Work.
Computed as set forth in Section 10.0, for that portion of the Extra Work or Deleted Work to be performed by Design-Builder with its own forces.
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ii. Subcontractors.
15% of the Cost(s) of Work for that portion of the Extra Work or Deleted Work to be performed by a first Tier Subcontractor with its own forces, plus 19.5% thereon for Design-Builder Markup. ill. Sub-subcontractors.
15% of the Cost(s) of Work for that portion of the Work to be performed by Sub-subcontractors of the second and lower Tier with their own forces, plus 5% thereon for the Subcontractor, plus 19.5% on the combined total thereof for Design-Builder
Markup.
2.3 Design/Builder's Warranty of Contract Price.
Design/Builder warrants and represents that the Contract Price includes, without limitation, the following costs and expenses related to the Work as of the Effective Date: (i) all overhead and general and administrative expenses, including, without limitation, both on-site and off-site direct job expenses and home office overhead for the Project; (ii) all fees and assessments for building and other permits for which Design/Builder is responsible under Section 4.3.9, below, (iii) all Design/Builder licenses; (iv) all inspections required to be performed or paid for by Design/Builder under the terms of the Contract Documents; and (v) except as otherwise permitted by Section 3.19 of the General Conditions (Differing Site Conditions), all costs and expenses associated with overcoming difficulties in performance due to Differing Site Conditions above or below the surface of the ground.
2.4 Construction Contingency.
Design/Builder Contingency and City Contingency shall be determined as part of the GMP Amendment.
2.4.1 Design/Builder Contingency. The Construction GMP shall include a contingency ("Design/Builder Contingency") which shall be included as a percentage in the GMP Amendment Proposal. The Design/Builder shall have the right to expend the Design/Builder Contingency with prior written approval by City, not to be unreasonably withheld, for which Design/Builder is not entitled to a Change Order adjusting the Contract Price, including, but not limited to:
unanticipated costs for coordination among and
resequencing of Design/Builder's statt and Subcontractors; omissions of specified City requirements;
Design/Builder's errors and omissions in design, pricing or scheduling the Work;
unexpected material cost increases in the Work;
costs incurred because of Design/Builder's Subcontractors
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non-performance or underperformance;
.6 unanticipated coordination errors or revisions on shop drawings that are required because of incomplete
construction documents issued by Design/Builder's Design Professionals;
acceleration and overtime; or
.8 labor disputes.
2.4.2 Design/Builder agrees that any costs arising from a Subcontractor's default or an event for which insurance or bonds required under this Contract provides reimbursement, Design/Builder shall exercise reasonable steps to obtain performance from the Subcontractors and/or recovery from any surety or insurance company with insured obligations under the Subcontract. Design/Builder agrees that if Design/Builder is subsequently reimbursed for said costs, then said recovery will be credited back to the Design/Builder Contingency.
2.4.3 Design/Builder Contingency shall be adjusted only as permitted by Section 11.1.2, below. Notwithstanding that the Design/Builder Contingency will be established as a percentage of the Contract Price as part of the GMP Amendment, it is agreed that
Design/Builder Contingency shall not be increased for Change Orders executed by City that increase the Contract Price after the GMP Amendment is executed.
2.4.4 City Contingency. The Construction GMP shall include an additional City Contingency, to be determined by the City in its sole and absolute discretion at the time of the GMP Amendment. No funds shall be used from the City's Contingency without approval by City, which approval may be granted or withheld in the sole and absolute discretion of City. The amount of the City Contingency under this Section 2.4.4 shall not be included as part of the Savings pursuant to Section 2.5. The City shall have the right at any time to reduce (including the right to eliminate entirely) the amount of City contingency, in which case a Change Order shall be issued reducing the Contract Price by amount of such reduction. Any unexpended portion of the City Contingency shall belong 100% to the City.
2.5 Savings.
Any Savings that exist at the time: (i) Final Payment is due and owing pursuant to Section 11.3 of this Contract, and (i) all outstanding claims, disputes or disagreements between City and Design/Builder that constitute grounds for withholding payment under this Contract have been fully and finally resolved and any sums due City by Design/Builder have been paid in full, shall be shared as follows: sixty percent (60%) to City and forty percent (40%) to Design/Builder.
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3.0 TIME
3.1 Time of Essence.
Time is of the essence with respect to all time limits set forth in the Contract Documents.
3.2 Notice to Proceed.
A Notice to Proceed will be issued and sent to the Design/Builder:
(i) For commencement of the Preconstruction Phase; and
(ii) For commencement of the Construction Phase in the event the GMP Amendment is executed.
(ili) For commencement of the Operations Phase in the event the GMP Amendment is executed.
3.3 Contract Time.
3.3.1 Preconstruction Phase. Design/Builder shall complete the Work described in Section 4.0 for the Preconstruction Phase in accordance with the Preconstruction Schedule attached hereto as Exhibit "5".
3.3.2 Construction Phase. Design/Builder shall achieve Final Completion of the Construction Phase Work described in Section 5.0 for the Construction Phase within the Contract Time established as part of the GMP Amendment. At Final Completion of the Construction Phase Work, Design/Builder will deliver an unconditional certificate of occupancy of the entire Project so that the City may occupy the Project. The warranties, guarantees and other Record Documents will be delivered prior to Final Completion of the Construction Phase
3.4 Compensation for Delay.
3.4.1 Sole Remedy. Extensions of time adjusting the Preconstruction Schedule due to any Delay occurring prior to the execution of the GMP Amendment shall be Design/Builder's sole and exclusive remedy for such Delay.
After execution of the GMP Amendment, except as provided in Section 3.4.2, below, extensions of time adjusting the Contract Time due to any Delay occurring after the GMP Amendment shall be Design/Builder's sole and exclusive remedy for such Delay. does occuring Compensation shall be permitted for Compensable Delay pursuant • to Section 3.4.2, below, only if, and to the extent that:
(i) Design/Builder is entitled to an extension of time for Substantial Completion of the Work under the provisions of the General
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Conditions governing extensions of time for Compensable Delays; and (ii) in the case of Delay caused by failure by City to provide a timely information, decision or approval, such Delay shall not be considered a Compensable Delay unless and until it continues after the expiration of seven (7) Days following Design/Builder's advance written notice to City describing in detail the information, decision or approval that is required and stating that if such information, decision or approval is not timely provided that Design/Builder may seek an adjustment to the Contract Price on the grounds of Compensable Delay. The requirements of this Section 3.4.1 with respect to notice of Compensable Delay are in addition to, and not a limitation upon, the other notice requirements of the Contract Documents relating to Excusable or Compensable Delay, Change Order Requests and Claims.
3.4.2 Compensable Delay. Subject to Section 3.4.1, during the Construction phase of the Work, the Contract Price shall be increased by a fixed amount ("Compensable Delay Rate") for each Day of extension to the Contract Time for Substantial Completion of the Work that Design/Builder is entitled to be granted under the terms of this Contract due to Compensable Delay occurring after execution of the GMP Amendment and prior to Substantial Completion and affecting Substantial Completion of the Work, but only to the extent that the Compensable Delay is not concurrent with (1) an Unexcused Delay or (2) another Excusable Delay that is not also a Compensable Delay. Sums payable to Design/Builder for Compensable Delay shall be included as part of Design/Builder's Application for Payment for Progress Payment following approval of the Compensable Delay by City. The Compensable Delay Rate shall be negotiated by the parties in good faith and included in the GMP Amendment.
3.4.3 Full Compensation. Without limitation to the foregoing and to the fullest extent allowed by law, Design/Builder agrees to accept the compensation provided for in Section 3.4.2, above, as its sole and exclusive right, remedy and recovery and total compensation for any of the following foreseen or unforeseen costs and/or damages associated with Delay incurred by Design/Builder or its Subcontractors or Design Professionals:
(i) General Conditions Costs;
(ii) extended or extraordinary overhead (direct or home office);
(iii) added insurance or bond costs;
(iv) loss of productivity or inefficiency;
(v) labor, wage, material or equipment escalation, and
(vi) other costs, expenses or damages, direct or indirect, arising from or related to Delay, compression,
acceleration or their "impact" or "ripple effect" on the Work. Nothing herein shall be interpreted as precluding
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Design-Builder from reimbursement of General
Conditions Costs that are incurred solely as the result of Extra Work involved in the performance of Scope
Changes and that Design-Builder demonstrates are
not incurred as a result of any Delay associated with
the performance of such Scope Change.
3.4.4 No Design/Builder Fee. Notwithstanding any other provision of the Contract to the contrary, Design/Builder shall not be entitled to seek or receive payment of a Design/Builder Fee that is based on sums payable by City pursuant to Section 3.4.2, above.
3.4.5 Exercise of City Rights. Except as expressly provided in other provisions in the Contract Documents, City's exercise of any of its rights or remedies under the Contract Documents shall not under any circumstances entitle Design/Builder to extension of the Contract Time or compensation for Compensable Delay.
3.5 Liquidated Damages to the City.
Notwithstanding anything to the contrary in this Contract, a liquidated damages provision shall be included in the GMP Amendment, based upon the City's reasonable effort to estimate fair compensation for each day that the Work is not Substantially Complete after the Contract Time.
3.6 Construction Schedules.
3.6.1 The Preconstruction and Preliminary Construction Schedule attached hereto as Exhibit "5" sets forth the Design/Builder's initial Preliminary Construction Schedule with estimated construction milestones to be achieved by Design/Builder during performance of the Construction Phase of Work.
3.6.2 The Preconstruction and Preliminary Construction Schedule, when Approved by City, shall be updated every two (2) weeks during the Preconstruction Phase, commencing from the date of the Notice to Proceed for Preconstruction. The most current Preliminary Construction Schedule, when Approved by City, shall govern Design/Builder's performance of the Work until such time as the latest approved Preliminary Construction Schedule is incorporated into the Construction Schedule to establish the Contract Time as part of the GMP Amendment, at which point the Construction Schedule shall become the controlling schedule for performance of the Construction Phase of Work and computation of adjustments to the Contract Time, as authorized by the Contract Documents.
3.6.3 Each Preliminary Construction Schedule shall be consistent with and an absolute derivative of the latest Preliminary Construction
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Schedule that has been Approved by City. The term "absolute derivative" as used in this Section 3.6.3 means that the schedule shall reflect activity sequences, durations, milestone deadlines and dates for Substantial Completion and Final Completion of the different phases of the Work that do not vary from those set forth in the latest Preliminary Construction Schedule Approved by City. The Construction Schedule shall be prepared, utilizing a time-scaled bar chart showing continuous flow from left to right and major milestones which are critical to the completion of the design, engineering and construction of the Project and a clearly highlighted critical path.
Durations and specific calendar dates shall be clearly and legibly shown for the start and finish of each activity. Activities shall be in sufficient detail to demonstrate a practical plan to complete the design, engineering and construction within the Contract Time.
3.6.4 The Preconstruction and Construction Schedules shall conform to General Requirements set forth in Exhibit "13"
3.7 Submittal Schedules.
3.7.1 Design/Builder shall provide a Submittal Schedule concurrently with each updated Preliminary Construction Schedule. The Submittal Schedule shall be included as part of each Preliminary Construction Schedule and shall conform to General Requirements set forth in Exhibit "13". The latest Submittal Schedule to be Approved by City shall be consistent with the latest Preliminary Construction Schedule to be incorporated into the Contract Time as part of the GMP Amendment.
3.7.2 At a minimum, the Submittal Schedule shall include City review dates and City review periods related to preparation and processing of Construction Documents, Submittals, delivery of Materials or Equipment requiring long-lead time procurement, City's occupancy requirements showing portions of the Project having occupancy priority, and proposed dates of Substantial Completion, performance of minor (or, "punch list") Work and Final Completion.
3.8 Adjustment of the Schedules.
After incorporation into the GMP Amendment, the Construction Schedule and Submittal Schedule shall not be adjusted except by a Change Order issued in accordance with the Contract Documents; provided, however, that nothing here shall be construed as prohibiting Design/Builder from making changes to the sequences, order or duration of activities shown in the Construction Schedule that does not involve adjustments to the dates for Substantial Completion, Final Completion or occupancy, and provided that such changes are approved by City in advance, with such approval not to be unreasonably withheld
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3.9 Activity Durations.
No activity in the schedules prepared by Design/Builder including, without limitation, the Preconstruction and each Preliminary Construction Schedule), other than City review periods, shall have a duration of longer than ten (10) Days. No City review period shall have a duration of less than ten (10) Days and shall be of longer duration in the case in the case of submissions that are anticipated to be complex or lengthy.
3.10 City Review Periods.
The Submittal Schedule, and updates thereof, shall include such City review periods as are required by the nature of the Work and/or as requested by City, Design/Builder shall in all cases deliver to City prior to commencement of a City review period a written request for review, accompanied, if appropriate, by the document, question or other information requiring City or City Consultant review, response, Approval or consideration. For purposes of determining compliance with the City review periods, if Design/Builder does not deliver its request for review before the first Day of a City review period scheduled in the governing schedule, the City review period shall not commence until Design/Builder delivers such request and the respective City review date shall be extended (without any corresponding adjustment to the Contract Time) on a Day-for-Day basis until Design/Builder delivers such request to the proper entity from which a response, review or Approval is sought. To the extent that such an extension causes Delay to Design/Builder's performance within the Contract Time, such Delay shall be deemed an Inexcusable Delay.
3.11 Governmental Authority Review Periods.
Design/Builder shall include in all of the schedules it prepares (including, without limitation, its reconstruction Schedule, Preliminary Construction Schedules, and Submittal Schedule) estimates of the time required for Governmental Authorities to inspect, review, issue permits, and approve of the Work while in progress, including, without limitation, any Submittals or other designs prepared by Design/Builder or Subcontractors relating to the Work. Without limitation to Design/Builder's rights under Section 8.0 of the General Conditions to extensions of time for unforeseeable Delays by Governmental Authorities in issuing approvals or permits, Design/Builder is solely responsible for the sufficiency and accuracy of its estimates of time for all Governmental Authority Review Periods.
3.12 Schedule Updates, "Look Ahead" Schedules.
The Preconstruction Schedule, Preliminary Construction Schedule, Construction Schedule and Submittal Schedule shall be updated by Design/Builder as provided in the Contract Documents. Updates shall be delivered in computer media form using Primavera P6 or greater software programs. The Contractor shall provide a license for the City's Project
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Managers use for the duration of the Project. In addition, Design/Builder shall prepare short term, four (4) week "look-ahead" schedules generated from the then-current Preconstruction Schedule, Preliminary Construction Schedule or Construction Schedule that has been approved by City. Subject to Design/Builder's rights to adjustments of the Contract Time as set forth in the General Conditions, if updates or "look ahead" schedules suggest that Design/Builder may not achieve performance of the Work within the Contract Time, Design/Builder shall make appropriate recommendations and implement revisions, to revise the governing reconstruction Schedule, Preliminary Construction Schedule, Construction Schedule and Submittal Schedule to reduce the time for performance to achieve performance within the Contract Time.
3.13 Responsibility for Schedules.
Design/Builder is solely responsible, notwithstanding City's review or Approval thereof, for the accuracy, completeness, suitability and feasibility of all elements of all schedules it prepares for the Project, including, without limitation, the Preconstruction Schedule, Preliminary Construction Schedule, Construction Schedule, Submittal Schedule, "look ahead" schedules and all updates thereof.
3.14 "Fast-Track" Design and Construction.
Design/Builder is solely responsible for the sequencing of design and construction activities. There shall be no additional compensation or adjustments to the Contract Price or Contract Time on the grounds that circumstances require that the design and construction proceed on a "fast track" basis. If City directs in writing, Design/Builder may be required, with no adjustment to the Contract Price, Design/Builder Fee or Contract Time to execute the GMP Amendment with a Construction Schedule that allows for: (i) commencement of the Construction Phase before the Preconstruction Phase is completed, in which case both phases shall proceed concurrently; and (ii) completion of Preconstruction Phase Work in a non-continuous or out-of-sequence manner that corresponds to City's requirements, including, without limitation, City's requirements for phased or "fast track" construction. Nothing in this Section 3.14 shall be deemed as a waiver of Design/Builder's rights to receive adjustment to the Contract Price or Contract Time under Articles 7 and 8 of the General Conditions.
3.15 Condition of Payment.
Without limitation to any other provisions of the Contract Documents pertaining to performance of scheduling obligations, if Design/Builder fails to perform any of its obligations under the Contract Documents pertaining to scheduling, City shall have the right to withhold from payments otherwise due to Design/Builder a reasonable sum until such compliance has Payment ey aly
occurred. Payment by City under circumstances in which City, for any reason, fails or elects not to assert its right to withhold payment for
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noncompliance with this Section 3.15 shall not be construed as a waiver of the right to withhold future payments on account of such noncompliance or any other noncompliance with the scheduling requirements of the Contract.
4.0 PRECONSTRUCTION PHASE
4.1 Bridging Documents.
4.1.1 Express Project Criteria. The City's Express Project Criteria for the Project are set forth in the Bridging Documents listed in Exhibit "" attached hereto, including revisions, deletions or additions to the Bridging Documents or Construction Documents hereafter requested by City in writing and/or Approved by City pursuant to Sections 4.3.6 and 4.3.7 of the Contract. Design/Builder may rely upon the Express Project Criteria as constituting an expression of the City's criteria and objectives for the Project that is to be followed by Design/Builder in designing and constructing the Project.
4.1.2 Revisions to Express Project Criteria. City shall have the absolute right, in its sole discretion, to revise, delete or add to the Express Project Criteria at any time prior to execution of the GMP Amendment; however, in the event of any Changes to the
Express Project Criteria which Design/Builder believes
increases the Design/Builder's estimate of the Costs of Work or cause Delay to the activities or deadlines in the Contract Schedule, then Design/Builder shall notify City in writing, within seven (7) Days of the receipt of any request by City that Design/Builder believes constitutes a revision, deletion or addition to the Express Project Criteria. If requested by City, Design/Builder as a Change Order shall make recommendations for reducing cost or time to minimize or eliminate such impact while allowing City to retain the benefits of such revisions, deletions or additions to the Express Project Criteria.
4.1.3 Scope of Preconstruction Phase Services. Design/Builder shall perform all of the Preconstruction Phase Services, and provide all material, equipment, tools and labor as set forth in the Budget for Pre-Construction attached as Exhibit "6". The general scope of Preconstruction Phase Services to be provided by Design/Builder under this Contract are intended to include, at no additional cost to City, all surveying of both the Work and Existing Improvements (including, without limitation, existing storm drains and utilities), geotechnical, soils and subsurface investigation, programming, management, coordination, design, architectural, engineering, and other related services necessary for the Preconstruction Phase of the Project in accordance with the Express Project Criteria in a condition that is suitable and sufficient for its intended purpose, use and occupancy, including, without limitation, the proper design, engineering, and sizing of electrical, mechanical, plumbing, hydraulics, process, communications, life/safety, security, and other
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building systems necessary to assure the proper operation of any ixtures, devices or equipment to be turnished and installed by City Design/Builder or others
4.1.4 Suitability of Designs in Bridging Documents. Design/Builder acknowledges acceptance regarding the adequacy and accuracy of the design information contained in the Bridging Documents; and that there shall be no adjustment to the Contract Price for the Bridging Documents that (i) constitute errors, omissions, conflicts, ambiguities, or violations of Applicable Laws, or (ii) are unsuitable for construction, or (ili) do not achieve the Express Project Criteria.
4.1.5 Resolution of Conflicts and Uncertainties. City and Design/Builder acknowledge that conflicts and uncertainties may arise concerning the level and scope of performance required under Bridging Documents. City and Design/Builder will in good faith attempt to resolve such conflicts and uncertainties in a manner that is consistent with the express design intent of the Bridging Documents and without adjustment to the Contract Price or Contract Time. In the event that they are unable, after good faith efforts, to resolve such conflicts and uncertainties, then, in recognition of their mutual desire that such conflicts and uncertainties not result in a compromise of the high standards they mutually intend be followed for design and construction of the Project, City and Design/Builder agree that all such unresolved conflicts and uncertainties in respect to the standard of quality shall be interpreted so as to require Design/Builder to perform the Work, without adjustment to the Contract Price or Contract Time, in a manner that reflects the higher or better standard indicated by the Bridging Documents.
4.2 Intentionally Left Blank.
4.3 Design Documents, Construction Documents.
4.3.1 Evaluation. Promptly after execution of this Contract and continuously throughout the Preconstruction Phase, Design/Builder shall evaluate the suitability and completeness of the City's needs, requirements, criteria and goals for the Project, including, but not limited to, the Express Project Criteria. It is understood that although this preliminary evaluation is a collaborative effort, City is relying upon Design/Builder's expertise and experience to proactively initiate inquiries, investigate and take other steps necessary to obtain all pertinent information concerning City's special needs and requirements so as to enable Design/Builder to obtain a clear understanding of the goals of the Project in terms of design, cost, quality and schedule and to provide advice to City consistent with the Standard of Care that will enable City to make informed decisions concerning the Project.
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4.3.2 Consultation. Design/Builder shall jointly schedule and attend regular meetings with City, and City Consultants regarding Site use and improvements, and the selection of Materials, building systems and Equipment, and provide continuous advice and
recommendations on issues of design, construction feasibility, and constructability that will result in efficient design, lower cost and long- term ease of maintenance; minimizing adverse effects of labor or material shortages; time requirements tor procurement, installation and construction completion; and factors related to construction cost, including estimates of alternative designs or Materials, preliminary budgets, value engineering and possible economies.
4.3.3 Design. Design/Builder shall provide as part of the Work all management, coordination, design, engineering, and other relatec services necessary to plan, design and build the Work of the Project to a condition that is suitable and sufficient for its intended purpose, use and occupancy as established by the Bridging Documents as Exhibit "1" and the General Requirements attached hereto as Exhibit "13" , including, without limitation, the proper design, engineering, and sizing of electrical, mechanical, plumbing, hydraulics, process, communications, life/safety, security, and other building systems necessary to assure the proper operation of any fixtures, devices or Equipment to be furnished and installed by City, Design/Builder or others.
4.3.4 Geotechnical Services, Surveying, Site Investigation.
Design/Builder shall furnish geotechnical services, surveying and site investigation of the project sites prior to completing the GMP Amendment and preliminary design of the Project.
4.3.5 Construction Documents. Promptly following execution of this Contract, Design/Builder shall proceed to prepare, for Approval by City, Construction Documents that incorporate designs and specifications that are suitable for construction and suitable to achieve the Express Project Criteria and General Requirements.
4.3.6 Revisions Requested by City. City shall have the absolute right, in its sole discretion, to request in writing that Design/Builder revise, delete or add to the designs and specifications contained in the Bridging Documents or Construction Documents. Design/Builder shall notify City in writing, within seven (7) Days of the receipt of any request by City that Design/Builder believes constitutes a revision, deletion or addition that constitutes a Change. City shall thereafter issue to Design/Builder its Approval or disapproval thereof. Failure by Design/Builder to provide such notice within ten (10) Days after receipt of such request by City shall result in such revision, deletion or addition being deemed to not constitute a Change. Design/Builder shall be entitled to an adjustment of the Contract Price and/or Contract Time on account of such additions, deletions or revisions
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for which Design/Builder has provided written notice as required by this Section only if and to the extent permitted by this Contract and the General Conditions for Changes and/or Compensable Delay.
4.3.7 Progress and Final Submissions. Design/Builder shall formally submit to City for its review and Approval complete sets of in- progress and final Construction Documents reflecting
Design/Builder's progress in the performance of its Preconstruction Phase Work at following points in time:
completion of soil investigation, and Geotechnical Engineering and upon completion of Surveying, (i) Alternatives Evaluation and Basis of Design Technical Memorandum, (iii) 30% Construction Drawings and Design Submittal, (iv) 45% Construction Drawings and Design Submittal, (iv) 60% Construction Drawings and Design
Submittal, (v) Guaranteed Maximum Price (GMP) proposal and (vi) upon completion of plan check corrections to the Construction Documents. The foregoing submissions shall be incorporated into the Preconstruction Schedule and the submissions shall be available to City for viewing at all times through SharePoint or equivalent electronic access so that City can review the status of any portion of the Design Documents as they are being developed.
CITY AND I DESIGN/BUILDER EACH UNDERSTANDS,
ACKNOWLEDGES AND AGREES THAT WHILE EACH
SUBSEQUENT SUBMISSION IS DEPENDENT UPON CITY'S
TIMELY AND THOROUGH REVIEW OF EACH EARLIER
SUBMISSION IN ACCORDANCE WITH THIS CONTRACT,
DESIGN/BUILDER IS ULTIMATELY RESPONSIBLE FOR ANY
ERRORS AND OMISSIONS; COMPLIANCE WITH APPLICABLE
LAWS AND CODES; AND EXERCISING THE STANDARD OF
CARE REQUIRED BY THIS CONTRACT NOTWITHSTANDING
CITY'S REVIEW OF EACH SUBMISSION.
Design/Builder shall separately identify in writing at the time of its formal submissions listed above in this Section any portions of such in-progress or final Construction Documents that constitute deviations from the Exhibit "f" (Bridging Documents) or other Changes. No such deviations or Changes shall be deemed
Approved by City unless Approved in writing by City expressly acknowledging and adopting such deviations as accepted as Changes • to the Express Project Criteria. All submittals of Construction Documents to City, including electronic submittals, shall include a certification by Design/Builder that, except as specifically noted in accordance with the requirements of this Section 4.3.7, the submitted Construction Documents do not contain any deviations from the Express Project Criteria or other Changes.
Any deviations from Express Project Criteria or other Changes that are so noted by Design/Builder and Approved by City shall be formalized in a Change Order. Such Change Order shall not, except
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as otherwise permitted by this Contract or the General Conditions, include an adjustment to the Contract Price or Contract Time, but shall be for the sole purpose of memorializing the current status of any Changes to the Express Project Criteria or other Changes that have been Approved by City. Design/Builder shall at all times remain solely responsible, notwithstanding City's review or Approval of such in-progress or final Construction Documents, for their accuracy, completeness, sufficiency and suitability to achieve the Express Project Criteria. Designs, details, specifications or other portions of the Construction Documents not in compliance with the requirements of this Section 4.3.7 or Applicable Laws shall, unless otherwise ordered by City in writing, be corrected and resubmitted to City. The cost of such design corrections shall be borne by Design/Builder as a Cost of Work but shall not entitle Design/Builder to an adjustment of the Contract Price or Contract Time.
4.3.8 Preconstruction Meetings. Design/Builder shall participate in all meetings as reasonably determined necessary by City or as necessary by the nature of the Project and complete performance of its Design Services and Preconstruction Phase Services required by this Contract. Minutes of meetings shall be maintained by Design/Builder and provided to City. City shall review such minutes promptly. If corrections are needed, City shall notify Design/Builder immediately specifying with particularity the additions or modifications to the minutes that City believes are needed in order for the minutes to be complete and accurate.
4.3.9 Permits. Design/Builder shall obtain, or cause to be obtained, and maintain all permits designated to be Design/Builder's responsibility in Exhibit "4" (Permit List) hereto. City shall obtain, or cause to be obtained, and maintain all permits designated to be City's responsibility in Exhibit "4" (Permit List).
Design/Builder shall assist City in obtaining those permits, approvals and licenses that are identified in Exhibit "4" (Permit List).
Design/Builder shall include in all of the schedules it prepares, estimates of the time required for Governmental Authorities to inspect, review and approve the Work while in progress, including, without limitation, any schedules or designs. Without limitation to Design/Builder's rights to extensions of time for unforeseeable Delays by Governmental Authorities in issuing approvals or permits, Design/Builder is solely responsible for the Suproar or arts, sufficiency and accuracy of its estimates of time for all Governmental Authority review periods.
Design/Builder shall provide those Construction Documents necessary to apply for all permits, licenses, approvals and certificates of Government Authorities necessary for construction of the Project for its intended use (collectively, "Permits"). The fees and
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costs of permits designated as City's responsibility Exhibit "4" (Permit List) shall be paid by City or, alternatively, at City's election, by Design/Builder as an adjustment to the Contract Price pursuant to Change Order, based upon the direct cost of the Permit plus cost of contractor's insurance, bond and fee mark-up. If Design/Builder learns of any other fees and costs for Permits not listed in Exhibit "4" (Permit List) hereto and that are necessary for construction of the Project, Design/Builder shall promptly notify City of same and such fees and costs shall, if not waived by City acting in its regulatory capacity, be either paid by City directly or, if requested by City, shall be paid by Design/Builder as an adjustment to the Contract Price pursuant to the Amendment to the Preconstruction Phase process outlined, above.
4.3.10 Alternative Designs, Value Engineering. At all stages during the development of the Construction Documents, Design/Builder shall consult with and advise City regarding access and use of the Site, and the selection of materials, building systems and Equipment.
Design/Builder shall, after consultation with its Design Professionals and Subcontractors, provide recommendations on construction feasibility; actions designed to minimize adverse effects of labor or material shortages; time requirements for procurement, installation and construction completion; and factors related to construction cost, including estimates of alternative designs or Materials, value engineering and possible cost reductions. Design/Builder is solely responsible, notwithstanding any review, approval or acceptance thereof by City, for the sufficiency of all such alternative designs that are incorporated into the design for the Project.
City has made available to
Cesign user and archied hereto as Exhibit
Information Reports). City does not expressly or impliedly warrant or represent the accuracy, completeness or suitability of the data, opinions, recommendations or other statements therein or that they constitute all of the information that may exist or be available relating to such matters. Accordingly, except as provided in General Conditions Section 3.19 (Differing Site Conditions), City shall have no liability or responsibility to Design/Builder in the event that other unknown or undisclosed information relating to such matters exists that is material to the Design/Builder's performance of this Contract or construction of the Work within the Contract Price and Contract Time.
4.3.12 Testing. Design/Builder shall coordinate, and City shall pay directly, and not as a Cost of Work, for all structural, mechanical, chemical, air and water pollution tests, tests for Hazardous Substances, Regulated Materials and all other laboratory and environmental tests, inspections and reports that are appropriate or required by Applicable Laws.
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4.3.13 Sustainable Design. Design/Builder understands, acknowledges and agrees that the project will be designed to ENVISION Platinum Certification Requirements of the Institute for Sustainable Infrastructure. Design/Builder shall pursue the ENVISION Platinum Certification on behalf of the City to provide the most sustainable design, construction and operation of the project within its funding parameters. Design/Builder shall make recommendations to City for incorporating sustainable design strategies that meet Al requirements without adjustment to the Contract Price or Contract Time.
4.3.14 Utility Relocation. Subject only to Design/Builder's rights to adjustment in the Contract Price and/or Contract Time for Differing Site Conditions, Design/Builder shall, except as otherwise expressly stated in the Bridging Documents, include in its performance of the Work provision for all aspects of design, permitting, relocation and construction of existing and new utilities.
4.4 Cost Estimating.
4.4.1 Progress Estimates. Within fifteen (15) Days after each Design/Builder's submission of design and Construction
Documents submittal, Design/Builder shall present to City, for review and Approval by City, detailed estimates of the cost to City of the design, construction and operations of the Project, including all sums that will be or have been incurred, or that Design/Builder estimates may be incurred, by City under the terms of this Contract.
Design/Builder shall present to the City a GMP Amendment Proposal in accordance with the schedule set forth in Exhibit "5" (Preconstruction and Preliminary Construction Schedule), for review and Approval by the City. The cost estimate shall include separate statements of: (i) anticipated reimbursable Costs of Work for of construction, including allowances, (ii)
Design/Builder Fee, and (iii) Contingency. Cost Estimates shall be based on competitive Subcontractors pricing from no fewer than three (3) Subcontractors, suppliers or vendors, with such supporting data and verification as may be requested by City, and allocated by line items reflecting at a minimum the actual or estimated Costs of Work for each separate category of specialty Subcontractor Work and Design Professional services, self-performed Work, Design/Builder Fee, on site supervision, and other on-site overhead broken down into categories of discrete overhead costs, such as temporary facilities, utilities, etc. Design/Builder shall provide the City with the actual prices of commitments and contracts entered into between Design/Builder and its Subcontractors as soon as such prices are available. Design/Builder shall submit proposed actual prices of contacts for City approval on the "Subcontractor Buy Out Authorization Letter of Request (AL)" for each Subcontractor as
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provided in Exhibit "g" (Standard Forms) of the Contract for Approval by the City of Santa Monica prior to entering into each subcontract. Form "Subcontractor Authorization Letter of Request (AL)" shall be provided in numbered sequence with a minimum of three (3) subcontractor quotations along with corresponding back-up minimally consisting of understanding of scope, labor, material, equipment, , insurance and bond cost breakdowns. Design/Builder shall be permitted, upon approval by City not to be unreasonably withheld, to submit fewer than three (3) quotations only where Design/Builder has demonstrated in advance to City that it is to obtain three (3) competitive
quotations. Design/Builder shall additionally submit proposed labor rate schedule for approval. Labor rates submitted shall be used in calculations for additional work or requests to utilize contingencies.
4.4.2 City Approval. Approval by City of any estimate or updated estimate provided by Design/Builder shall not be interpreted as the Approval of any design that deviates from the requirements of this Contract or the other Contract Documents, unless such deviation is specifically noted by Design/Builder and Approved by City in the manner provided in Section 4.3.7 of this Contract. No Approval by City shall be interpreted as authorizing or approving any increase in the Contract Price unless such Approval is set forth in a Change Order, signed by City, setting forth the amount of such increase.
4.4.3 Cost Reduction Recommendations. If any cost estimate or GMP Amendment proposal submitted by Design/Builder to City exceeds a previous estimate that has been reviewed or Approved by City, Design/Builder shall explain the reason therefore and shall, at no cost to and without reimbursement by the City, suggest and implement revisions in the Construction Documents as alternatives to reduce costs. Design/Builder and its Subcontractors shall use good-faith and diligent efforts throughout the duration of their performance on the Project to identify high cost, low value items or systems and make recommendations to the City on alternatives thereto that would reduce costs and improve cost-benefit ratios, taking into consideration the following factors: availability, construction feasibility; design access and use of the Site; possible adverse effects of labor or material shortages; time requirements for procurement; and installation and construction completion. City and Design/Builder shall cooperate in good faith to evaluate systems and methodologies that align with the City's overall interests.
Design/Builder understands that it is Design/Builder's sole Orders permitted by the Contract Documents). If any estimate or summary of bids or costs submitted by Design/Builder to City exceeds the Contract Price as adjusted for Change Orders,
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Design/Builder shall explain the reason therefore and shall recommend revisions in the Contract Documents as alternatives to reduce Costs of Work so that the total estimated or actual Costs of Work and Design/Builder Fee does not exceed the Contract Price.
City may, in its sole discretion, refuse to Approve any cost reduction recommendation under circumstances where such recommendation would, if Approved and implemented, constitute a change in the Express Project Criteria or that would render the designs or specifications set forth in the Construction Documents unsuitable to achieve the Express Project Criteria.
4.5 Bidding, Purchasing.
4.5.1 Proposed Bidder List. Design/Builder shall actively seek to develop interest in the Project among potential, qualified Subcontractors and shall furnish to City for its information a list of proposed Subcontractors, consisting of no fewer than three (3) proposed Subcontractors who have been pre-qualified by
Design/Builder in compliance with Section 4.5.2 below, who Design/Builder proposes to furnish work, Materials or Equipment for the Project and from whom Design/Builder intends to solicit competitive bids. Design/Builder shall be permitted, upon approval by City not to be unreasonably withheld, to submit fewer than three (3) competitive bids only where Design/Builder has demonstrated in advance to City that it is commercially impracticable to obtain three (3) competitive bids.
4.5.2 Prequalification. Design/Builder will thoroughly investigate the qualifications and experience of potential bidders and, without limitation to any other factors relevant to bidder responsibility, Design/Builder shall not include on such list any individual or firm:
(i) that is debarred from contracting with the United States, State of California, any city, county, or political subdivision of the State of California, or any agency or department thereof; or (ii) that is not properly registered with the Department of Industrial Relations or licensed or has an existing unsatistied judgment entered against it arising from a violation of the applicable license laws; or (ili) has been previously terminated for default or assessed liquidated damages by City; or (iv) previously has submitted a false claim as defined in Government Code Section 12650, et seq.; or (v) as to which there exists reasonable evidence that the individual or firm is not qualified or is unfit to perform the Work; or (vi) that is unable or fails to provide the insurance coverage required by the Contract Documents; or (vii) that has been assessed penalties by any federal, state or local government entity for prevailing wage violations. Design/Builder shall provide to the City such information on the qualifications of potential bidders as is generated from its investigation. City shall promptly identify any bidder as to whom City has any objection to a bidder's qualifications based on the information provided by Design/Builder.
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Failure by City to so object shall not relieve Design/Builder from its sole responsibility for the qualifications of its bidders nor shall it constitute a waiver of the City's right to later require Design/Builder to disqualify from bidding any bidder whose qualifications do not satisfy the requirements of this Section 4.5.2.
4.5.3 Bidding Documentation. Design/Builder shall deliver to City and City copies of all invitations to bid, bids and bid tabulations received from qualified proposed Subcontractors who have submitted bids in a form that will enable easy comparison and evaluation of the bid prices and scope, each to the other. In the event City determines that a bid is incomplete or unclear in any respect, Design/Builder shall seek clarification of same prior to award. Design/Builder shall include its recommendation as to the bidder to whom it proposes to award a contract for each portion of the Work. Design/Builder shall remain solely responsible for the sufficiency, completeness and award of bids notwithstanding any such review or evaluation conducted by City.
4.5.4 Substitution of Subcontractors. City shall notify the Design/Builder within seven (7) Days of receipt of documentation and information required by Sections 4.5.2 and 4.5.3, above, of its objections, if any, to any bidder, including an affiliate of Design/Builder, to whom Design/Builder proposes to award a contract for a portion of the Work. No proposed Subcontractor to whom City has a reasonable objection shall be awarded a contract.
Neither the review nor Approval of such documentation by City shall create any obligation on the part of City to investigate the qualifications of proposed Subcontractors, nor shall it waive the right of City (subject to Design/Builder's right to adjustment of the Contract Price as provided in this Section 4.5.4) to later object to, reject or request substitution of any proposed Sub-contractor on any grounds hereinabove authorized by this Section 4.5.4. No adjustment to the Contract Price on account of any such reasonable objection by City to a proposed Subcontractor shall be permitted except as provided in this Section 4.5.4. If Design/Builder has complied with the provisions of Sections 4.5.1 through 4.5.3 and if City instructs Design/Builder to reject the bid of a Subcontractor, including an affiliate of Design/Builder, that is the lowest bid among those submitted for the same portion of the Work on grounds other than that set forth in Clauses (i) through (vi) of Section 4.5.2, then Design/Builder shall be entitled to an adjustment in the Contract Price by Change Order in an amount equal to the difference between such bid and the bid price of the next bidder selected by City, whether or not such next bidder is awarded the Work by Design/Builder.
4.5.5 Self-Performed Work. Design/Builder shall request and identify in the GMP Amendment the portions of the work to be self-performed by Design/Builder, for the approval by the City. Request for Approval
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by City of self-performed Work shall be accompanied by
documentation demonstrating (i) that Design/Builder has the capability and experience to • self-perform the scope of Work proposed to be self-performed by Design/Builder and (ii) the cost savings to the Project, as evidenced by, without limitation, competitive prices from at least three (3) Subcontractors for the scope of Work proposed to be self-performed by Design/Builder and (iii) a proposed lump sum price for Work to be self-performed by Design/Builder. Design/Builder shall be permitted, upon approval by City not to be unreasonably withheld, to submit fewer than three (3) quotations only where Design/Builder has demonstrated in advance to City that it is commercially impracticable to obtain three (3) competitive quotations. Design/Builder shall additionally submit proposed labor rate schedule tor approval. Labor rates submitted shall be used in calculations for additional work or requests to utilize contingencies. Submission of a lump sum proposal to self-perform Work constitutes a representation and binding commitment by Design/Builder that if requested by City it will perform such Work for the lump sum price proposed. Provided that the City, in its sole discretion, approves the amount as competitive as part of the GMP Amendment, the Design/Builder may self-perform the (insert) portion for the Work for a fixed, lump sum price of (insert amount) Dollars _ (Price to be inserted in GMP Amendment
for Construction Services.); provided, however, that in consideration of the City's so agreeing, Design/Builder agrees that notwithstanding anything else stated in the Contract Documents to the contrary, Design/Builder guarantees that the Costs of Work to complete said portion of the Work shall not exceed the agreed lump sum price set forth herein and that any Costs of Work incurred in excess thereof in performance of the self-performed portion of the Work, whether incurred by Design/Builder or others, shall be borne by Design/Builder at its own expense, not as a Cost of Work and shall not be reimbursed in any form by City, including, without limitation, from the Construction Contingency. Said guaranteed lump sum price for the self-performed portion of the Work shall only be adjusted for deletions or Changes to the self-performed portion of the Work authorized by Change Order.
4.5.6 Procurement. Design/Builder shall recommend to City a schedule for procurement of long-lead time items which will constitute part of the Work as required to meet the Preliminary Construction Schedule and Construction Schedule. Design/Builder shall expedite the delivery of long-lead time items.
4.6 Design/Builder's GMP Amendment Proposal.
Design/Builder shall prepare a GMP Amendment Proposal for submission to the City, as follows:
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4.6.1 Basis of GMP Amendment Proposal. Pursuant to the schedule set forth in Exhibit "5" (Preconstruction and Preliminary Construction Schedule), or within fifteen (15) days after the
acceptance of 60% design and construction documents submittal Design/Builder shall submit to City a GMP Amendment Proposal for such phase of Work setting forth a proposed Contract Price that is in all respects consistent and in conformance with the requirements of this Contract and the General Conditions. Design/Builder shall include with its GMP Amendment Proposal a written statement of its basis, which shall include at a minimum:
A list (by sheet number, issuance date and last revision date) of the Design Documents Approved by City, which were used n preparation of the GMP Amendment Proposal. All suc
Design Documents shall bear the actual (or, if requested electronic) approval stamp of the licensed Design
Professional who prepared or directly supervised preparation of the Construction Documents, along with the name of the Design/Builder.
The proposed revisions to the Contract Price or Guaranteed Maximum Price consistent with Sections 2.2.1 and 2.2.2, which shall include all costs and expenses to completely design and build the Project, without any exceptions,
qualifications, allowances, or exclusions except those that have been previously Approved by City for inclusion in the GMP Amendment.
Design/Builder's Contingency and City Contingency as set forth in Sections 2.4.1 and 2.4.4, above.
.4 The Design/Builder Fee set forth in Section 10.
.5 The dates for completing the Construction Documents, Substantial Completion and Final Completion of the Work and for achieving other key milestones as set forth in the Contract Milestone Schedule (such as, but not limited to, deliveries and installation of major Equipment, fixtures and furnishings and occupancy) or the latest updated Preliminary Construction Schedule Approved by City.
.6 A proposed Schedule of Values, made out in a form Approved by City, which itemizes each activity that is to be performed by separate Subcontractors and Design Professionals, self- performed Work, Design/Builder Fee, and Contingency, the total of which shall equal the Guaranteed Maximum Price Amendment Proposal.
Design/Builder's Compensable Delay per day as set forth in
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Section 3.4.2
4.6.2 Review by City. Design/Builder shall meet with City, Construction Manager and City Consultants to review such GMP Amendment Proposal and the written statement of its basis.
4.6.3 Period of Irrevocability. The GMP Amendment Proposal shall emain open and irrevocable for a period of no less than thirty (30 Days after delivery to City, or as such longer time as may be otherwise stated in the GMP Amendment Proposal.
4.6.4 Revision to GMP Proposal. In the event City and Design/Builder are not able to reach agreement upon all of the terms set forth in the GMP Amendment Proposal, then Design/Builder shall prepare and submit, within ten (10) Days after requested by City, a revised GMP Amendment Proposal for City's consideration.
4.7 Negotiation of GMP Amendment.
Upon Approval by City of the GMP Amendment Proposal, the parties shall execute a GMP Amendment in a form mutually agreed upon by both parties that will be inserted as Exhibit "15" (GMP Amendment for Construction).
Except as otherwise permitted by this Contract and set forth in the GMP Amendment, Design/Builder's obligations with respect to the design and construction of the Project shall be governed by the terms and conditions of this Contract and the other Contract Documents identified in the GMP Amendment.
4.8 Termination Without GMP Amendment.
Notwithstanding anything in this Contract to the contrary, in the event that City and Design/Builder do not, as provided in Section 4.7 of this Contract, negotiate and execute the GMP Amendment on or before twelve (12) months from the Notice to Proceed for commencement of the Preconstruction Phase and the City elects to terminate this Contract, then Design/Builder's sole compensation shall be in accordance with the compensation provided for in Exhibit "6" (Budget for Pre-Construction).
5.0 CONSTRUCTION PHASE
5.1 General.
5.1.1 Design/Builder shall completely perform all of the Work in accordance with the Contract Documents.
5.1.2 Unless otherwise provided in the Contract Documents, Design/Builder shall furnish, or cause to be furnished, and shall pay for all design services, labor, Materials, Equipment, tools, construction Equipment and machinery, water, heat, utilities,
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transportation and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated into the Work.
5.1.3 Design/Builder, and its appropriate Subcontractors and Design Professionals, shall attend meetings with City as frequently as reasonably determined necessary by City or as necessary to the expeditious performance of the Work for the purpose of discussing and resolving design and construction issues which may arise during the Project.
6.0 OPERATIONS PHASE
6.1 Operations Phase Services
Design/Builder shall perform the Operations Phase Services in accordance with Exhibit "18". The scope of the Operations Phase Services shall be determined as part of the GMP Amendment, Design/Builder shall commence the Operations Phase Services amendment on the Construction Phase Substantial Completion date and continue to perform such Work until the end of the Operations Phase in accordance Exhibit "18"
6.2 Assistance in Transition.
Design/Builder shall do all things reasonably required by the City to ensure the smooth and orderly transfer of responsibility for the Facilities to the City or its nominee at the end of the Performance Validation Phase including:
Meeting with the City and such other persons notified by the City to discuss the Project;
Providing access to its operations for the purpose of familiarization; and
Providing sufficient information to the City and its nominee to determine the status and condition of the Project.
7.0 COST(S) OF WORK
The term "Cost(s) of Work" shall mean costs listed in this Section 7.0 that are necessarily and properly incurred and paid by Design/Builder in the proper Such costs shall be at rates not higher than the
standard paid in the Greater Los Angeles vicinity, except with the prior written Approval of City. The Cost of Work shall include only the items set forth in this Section 7.0.
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7.1 Labor Costs.
7.1.1 Wages of construction workers directly employed by Design/Builder to perform Work at the Site or, with City's prior written agreement, at workshops located outside of the Site.
7.1.2 Wages or salaries of Design/Builder's supervisory and administrative personnel (i) when stationed at the Site, or on the road engaged in expediting the production or transportation of Materials or Equipment required for the Work; (ii) supervisory and administrative personnel listed in Exhibit "3B" (Key Personnel - Construction) to this Contract providing services to the Project at the Design/Builder's principal and local branch office; provided that such services are verified by contemporaneously maintained time sheets showing the portion of their time devoted exclusively to the Project; and (ili) personnel or subcontractor during the construction who engages in project management, construction management, construction engineering, design revisions, inspection and testing at the site and local branch office and (iv) an allocable portion of Design/Builder's branch office project accounting costs devoted to the Project; and (v) any request for contingency transfer for personnel must be accompanied by substantiating documentation. The rate specified for team members assigned full-time to the project shall not exceed 2080 hours per year unless Approved by the City. Billable hours for assigned staff beyond an 8-hour day, or beyond forty (40) hours per week, will not be reimbursed unless Approved by City.
7.1.3 Costs paid or incurred by Design/Builder for taxes, insurance, contributions, assessments and benefits required by law or collective bargaining agreements, and, for personnel not covered by such agreements, customary benefits such as sick leave and medical and health benefits at the agreed, fixed rate (or fee) of _ be negotiated with Design/Builder as part of the GMP Amendment for Construction) of the wages and salares paid to employees of Design/Builder shall be payable as Costs of the Work during the construction phase, pursuant to Sections 7.1.1 and 7.1.2.
7.2 Subcontractor, Design Professional Costs.
Except as otherwise provided in Section 7.0, payments made by Design/Builder to Subcontractors, Design Professionals or Design/Builder's Subsidiaries in performance of the Work in accordance with the requirements of their contracts with Design/Builder and the Contract Documents
7.3 Costs of Materials and Equipment Incorporated into the Work.
7.3.1 Costs, including transportation, inspection, storage, testing and handling of Materials and Equipment incorporated or to be incorporated into the Work.
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7.3.2 Costs of materials described in the preceding Section 7.3.1 in excess of those actually installed but required to provide reasonable allowance for waste and for spoilage. Unused excess materials, tools, or equipment paid for by City, if any, shall be delivered to City at Final Completion of the Work or, at Citys option, shall be sold by Design/Builder. Amounts realized, if any, from such sales shall be credited to City as a deduction from the Cost of the Work.
7.4 Costs of Other Materials and Equipment, Temporary Facilities and Related Items.
7.4.1 Costs, including transportation, installation, maintenance, dismantling and removal of Materials, supplies, temporary facilities, machinery, Equipment, and hand tools not customarily owned by the construction workers, which are provided by Design/Builder at the Site and fully consumed in the performance of the Work; and cost less salvage value on such items if not fully consumed, whether sold to others or retained by Design/Builder. Cost for items previously used by Design/Builder shall mean fair market value. Small tool purchases shall be limited to that which is reasonably required for the efficient performance of Work in a manner that avoids unnecessary waste.
7.4.2 Rental charges for temporary facilities, machinery, Equipment, and hand tools not customarily owned by the construction workers, which are provided by Design/Builder at the Site, whether rented from Design/Builder or others, and costs of transportation, installation, minor repairs and replacements, dismantling and removal thereof.
Rental charges for all necessary temporary facilities, machinery, and Equipment, exclusive of hand tools, which are provided by Design/Builder at the Site, including costs of transportation, installation, minor repairs and replacements, dismantling and removal thereof, whether rented from Design/Builder or others, shall be consistent with the lesser of (i) the rate prevailing at the locality of the Project, or (ii) one hundred percent (100%) of the current Caltrans Equipment Rates. Rates and quantities of Equipment rented shall be subject to City's reasonable prior Approval.
7.4.3 Costs of removal of debris and construction waste generated by construction of the Project from the Site.
7.4.4 Costs directly related to performance of the Work for reproduction; telegrams; long distance telephone calls; postage and express delivery charges; and use of cellular telephones. Costs of the following used at the Design/Builder's offices located at the Site:
Telephone service; computer system charges; cable charges; computers (PC's) software license fees; and plotter/printers; and reasonable petty cash expenses.
7.4.5 That portion of the reasonable travel and subsistence expenses of
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Design/Builder's personnel incurred while traveling in discharge of duties connected with the Work, including vehicle expenses and associated fuel charges.
7.4.6 Reasonable costs and expenses of establishing, operating, mobilizing and demobilizing the Design/Builder's office located at the Site.
7.5 Miscellaneous Costs.
7.5.1 That portion or pro rata share directly attributable to the performance of the Work of the premiums for insurance, bonds purchased by Design/Builder and bonds purchased by those Subcontractors whose subcontract prices exceed One Hundred Thousand dollars/nc cents ($100,000). Costs of bonds purchased by any Subcontractor whose subcontract price is equal to or less than One Hundred Thousand dollars/no cents ($100,000) shall be reimbursable as a Cost of Work only if approved in advance by City, which approval shall not be unreasonably withheld.
7.5.2 Sales, gross receipts, use or similar taxes and business license fees imposed by a Governmental Authority, which are related to the Work and for which Design/Builder or its Subcontractors are liable and which would not have been imposed in the absence of
Design/Builder performing the Work.
7.5.3 Royalties and license fees paid for the use of a particular design, process or product expressly required by the City, provided that Design/Builder notified City, in writing, that a royalty payment would be necessary to use the design, process, or product. Costs of defending suits or claims for infringement of patent rights arising from the use of a particular design, process, or product that City has "expressly required" to use in the Work and paying legal judgments against Design/Builder resulting from such suits or claims and paying settlement thereof made with City's Approval. A design, process, or product contained in the Bridging Documents or in any Construction Documents Approved by City shall not be interpreted as being "expressly required" by City for purposes of this Section unless Design/Builder has requested that an alternative and equal design, process or product be used, and such request has been denied by City.
7.5.4 Deposits lost, except to the extent that such loss was caused by the negligence of Design/Builder or a Subcontractor or the failure of Design/Builder to comply with the requirements of the Contract Documents.
7.5.5 : Utilities, including electrical, water, sewer and other utilities until installation of the permanent power system to the Project and the
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energizing of that system.
7.5.6 Governmental fees for permits, approvals, or inspections for which Design/Builder is responsible pursuant to Section 4.3.9 and Exhibit "4" (Permit List) to this Contract.
7.5.7 Sums payable by City to Design/Builder for Compensable Delay pursuant to Section 3.4.2, above.
7.5.8 Sums payable to Design/Builder for lump sum performance of self- performed Work on the basis of the lump sum price Approved by Design/Builder pursuant to Section 4.5.5.
7.5.9 Costs for premiums for Insurance required by the Contract Documents.
7.6 Other Costs.
Other costs incurred in the performance of the Work if and to the extent Approved in advance in writing by City.
7.7 Emergencies.
The Cost of the Work shall also include costs which are incurred:
7.7.1 In taking action, not necessitated by any fault or neglect on the part of Design/Builder or its Subcontractors or Design Professionals, of any Tier, to prevent threatened damage, injury or loss in case of an emergency affecting the safety of persons and property.
7.7.2 In repairing or correcting damaged or nonconforming Work executed by the Design/Builder or its Subcontractors, of any Tier, provided that such damaged or nonconforming Work was not caused, in whole or in part, by the negligence of the Design/Builder, its Subcontractors or Design Professionals, of any Tier, or the failure of Design/Builder to fulfill any of the responsibilities set forth in this Contract or the other Contract Documents, and only to the extent that Design/Builder demonstrates that the cost of repair or correction does not constitute a Loss covered by the insurance policies and coverage's that Design/Builder or its Subcontractors or Design Professionals were obligated to purchase under the Contract Documents, whether or not such insurance was actually obtained.
7.8 Warranty Inspections, Commissioning
Warranty inspections, post-completion services and commissioning services shall be payable as a lump sum, to be negotiated as part of the GMP Amendment.
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8.0 COSTS NOT TO BE REIMBURSED
8.1 The Cost of the Work shall not include, and Design/Builder shall not be reimbursed for the following:
8.1.1 Except as provided in Sections 7.1.1 and 7.1.2, salaries and other compensation of Design/Builder's personnel stationed at Design/Builder's principal office or offices (other than Design/Builder's offices located at the Site), including without limitation employees, salaries and other expenses of supervision and administration of progress, schedule, and cost control.
8.1.2 Payments to employees or personnel assigned to the Project, whether located or working on the Site or at other locations, for bonuses, 401 (k) plans or pension plans.
8.1.3 Except as provided in Section 7.1.2, above, expenses of Design/Builder's principal, branch and district offices, other than Design/Builder's offices located at the Site, including without limitation (i) supervision of the Work by personnel, and (ii) costs of copying, transmissions, office equipment and supplies, located or generated at Design/Builder's principal, branch and district offices.
8.1.4 Profit, overhead and general and administrative expenses, of any kind, including without limitation general accounting (except as otherwise provided in Clause (iii) of Section 7.1.2, above), auditing, tax preparation, and insurance administration.
8.1.5 Except as provided in Section 7.4.5, above, costs and expenses for travel and subsistence incurred by employees above the level of project manager and relocation costs of employees, whether assigned to work at the Site or at other locations.
8.1.6 Design/Builder's capital expenses, including interest on Design/Builder's capital employed for the Work
8.1.7 All attorney's fees and expenses of litigation, except to the extent permitted under the terms of this Contract.
8.1.8 Except as clarified in paragraph 7.4.4 above, Costs and expenses of computers, except for individual personal computers (PC's) and other special equipment (such as plotters for scheduling) in use at the Site for the sole benefit of the Project.
8.1.9 Rental costs of machinery and Equipment, except as specifically permitted under Section 7.4.2.
8.1.10 Costs associated with the performance, testing, inspection, repair or replacement of Defective Work, or Losses resulting from therefrom,
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including without limitation any costs incurred in performance of any warranty or guarantee obligation.
8.1.11 Except as provided in Section 7.5.2, above, costs of business licenses and dues, assessments and contributions to technical or trade associations or for representation in collective bargaining
8.1.12 Costs of insurance on tools or Equipment owned or rented by Design/Builder that are not furnished to or used for the Project; taxes assessed against property or Equipment of Design/Builder that is not incorporated into the Work; and taxes on gross income.
8.1.13 Costs incurred by Design/Builder or any Subcontractor or Design Professional, of any Tier, as a result of Delay, except to the extent expressly permitted by Section 3.4 of this Contract for Compensable Delay and except as may be paid from Design/Builder Contingency in accordance with Section 2.4.1.
8.1.14 Costs that would cause the Contract Price, as adjusted for Change Orders executed by City, to be exceeded.
8.1.15 (omitted).
8.1.16 The cost for any item not specifically and expressly listed as a Cost of the Work in Section 7.0.
8.1.17 Any cost or expense incurred as a result of any violation of any term or condition of this Contract or any other Contract Document, including without limitation the failure to obtain or maintain required insurance coverage.
8.1.18 Building permit fees, grading permit fees, plan check fees and other fees not related to the permitting of construction for the Project.
8.1.19 Expenditures from Contingency that are not Approved by City in advance pursuant to Section 2.4 of this Contract
8.1.20 Costs or expenses that are expressly stated in any portion of the Contract Documents to not be a Cost of the Work, or that Contract Documents expressly require to be borne by Design/Builder at its own expense.
8.1.21 Liquidated damages assessed pursuant to Section 3.5 of this Contract.
8.1.22 Any costs incurred in whole or in part arising from the willful misconduct of the Design/Builder or any of its Subcontractors of any Tier.
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9.0 DISCOUNTS, REBATES AND REFUNDS
Cash discounts obtained on payments made by Design/Builder shall accrue to City if, before making the payment, Design/Builder included the cost of the items) in an Application for Payment and received payment therefore.
10.0 DESIGN/BUILDER FEE
The Design/Builder's Fee for Work during the Construction Phase includes the following mark-ups:
ITEM MARK-UP
Professional Services During 7%
Construction (Construction
Management, Design Revisions,
Inspection & Testing)
All Bonds 0.75%
All Insurances 0.75%
General Conditions 3%
Construction Indirect 4%
Fee 4%
TOTAL DESIGN/BUILDER
CONSTRUCTION PHASE FEE 19.5%
11.0 PAYMENTS
11.1 Schedule of Values for Construction Phase.
11.1.1 Content. As part of the GMP Amendment, Design/Builder shall general categories of Costs of Work, Design/Builder Fee and Design/Builder Contingency that corresponds to the trade category breakdown thereof set forth in Exhibit "6" (Budget for Pre-Construction) attached hereto. The Schedule of Values must be prepared in sufficient detail and supported by such data to substantiate its accuracy as City may require.
11.1.2 Buy Out, Updating, Contingency Transfers. Line items that are based on estimates shall be designated as "estimates". No less frequently than monthly, the Schedule of Values shall be updated by Design/Builder and submitted to City for its review and Approval. Without limitation, such updating shall include replacing estimates with actual subcontract, purchase order or vendor prices, as soon as such prices are available. If, at the time of the initial buy out of any subcontract trade the amount of the actual subcontract, purchase order or vendor price for a trade line item in the Schedule of Values is, due to estimating errors or omissions by Design/Builder or its Subcontractors, greater than Design/Builder's estimate
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for that same line item, then the amount of Contingency shown in the Schedule of Values shall be decreased by the difference. Conversely, if the amount of the actual subcontract, purchase order or vendor price for any line item is less than Design/Builder's estimate for that same line item, then amount of Contingency shown in the Schedule of Values shall be increased by the difference. If, at any time after the initial buy out of the subcontract trade line item of Work, the actual Costs of Work charged to Design/Builder by the Subcontractor for such portion of the Work exceeds the amount of such trade line item due to circumstances not constituting grounds for adjustment of the Contract Price by Change Order and such excess constitutes Costs of Work for which Design/Builder is entitled, with approval by City, to utilize from Contingency, then the amount of the Contingency shall be decreased and the line item amount increased by such excess amount.
Conversely, if the actual Costs of Work charged to Design/Builder for such portion of the Work is less than the amount of such trade line item, then the Contingency shall be increased by such savings amount. Each transfer to and from Contingency as permitted by this Section 11.1.2 shall be clearly delineated in the Schedule of Values so that City can monitor each such transfer. Priorto the any release of any contingency funds, each contingency request shall be submitted for city review and consideration on a "Contingency Request Letter (CRL)". The request shall state the contractor's reasoning for request of contingency transfer and will be accompanied by the substantiating back up documentation in support of such reasoning. Nothing herein shall be interpreted as authorizing any expenditure from Contingency that is prohibited by Section 2.4.1 of the Contract.
11.1.3 Use for Payment. The Schedule of Values, when Approved by City, shall be used as a basis for Design/Builder's Applications for Payment. Once a month, Design/Builder and City will meet to estimate the percentage complete, projected through the end of the month, under each line item.
Progress payments will be based upon verifiable Costs of Work. City acknowledges that, except as otherwise expressly provided in the Contract or the General Conditions, Design/Builder does not guarantee the amounts of individual line item amounts in the Schedule of Values.
11.2 Progress Payments.
11.2.1 Application for Payment.
Marked Schedule of Values.
At least five (5) Days prior to the review meeting required by Part .2 of this Section 11.2.1, Design/Builder shall submit to City a copy of the Schedule of Values, marked in pencil to show the percentage of completion certified by Design/Builder for each line item in the Schedule of Values, including a list of stored Materials Approved by City for inclusion in the Application for Payment, any reduction in retention Approved by City, and any withholdings from
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Design/Builder proposed by City.
.2 Review Meeting.
At a meeting held on or about the twenty-fifth (25) of each month, Design/Builder, and the City will review Design/Builder's Application for Payment including percentages of completion and other payment issues and endeavor to agree on a final amount to be paid for that month. In the event they are unable to agree, then the amount to be paid shall be determined, in good faith, by City, which determination shall be communicated to Design/Builder no later than the last Day of the month in which such meeting was held. The percentages and other pay items will be input into a master spreadsheet by Design/Builder, who will then prepare a summary Application for Payment for the month, supported by the detailed back-up material.
Review of the Application for Payment should reconcile contract buyouts and consequent line item adjustments in addition to Contingency changes. Any proposed use of the Contractors Contingency will be reviewed through the submittal of a Contingency Utilization Request Form. Requests will be approved or denied. .3 Application for Payment.
Following agreement on percentages of completion and not later than ten (10) days after the last Day of the month in which the meeting described in Part .2 of this Section occurs, Design/Builder shall submit three copies of the summary Application for Payment to the Owner's Representative. Each Application for Payment shall be accompanied by (i) statutory forms of conditional lien, stop notice and bond waiver and release, complying with Applicable Laws, for all Work performed during the time period covered by the current application, signed by Design/Builder and its Subcontractors and Design Professionals, of every Tier, conditionally releasing all lien, bond, and stop notice rights, and (il) statutory forms of unconditional lien, stop notice and bond waiver and release, complying with Applicable Laws, for all Work paid and performed during the time period covered by the previous application, signed by Design/Builder and (iii) statutory forms of unconditional lien, stop notice and bond waiver and release, complying with Applicable Laws, for all Work performed and paid forty-five (45) or more days prior to the current Application for Payment, from Design/Builder's Subcontractors and Design Professionals, of every Tier, unconditionally releasing all lien, bond and stop notice rights. Design/Builder shall preserve and maintain the original signed statutory forms of conditional and unconditional lien, stop notice and bond waiver and releases, which documentation shall be available for review by City or City upon reasonable notice during normal business hours.
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Certification.
The signing of an Application for Payment will constitute a representation and certification by Design/Builder to City that (i) the data comprising the application for payment is accurate and the Work has progressed to the point indicated; (ii) to the best of Design/Builder's knowledge, information and belief, the Work is in accordance with the Contract Documents; (iii) Design/Builder is entitled to payment in the amount certified; (iv) all sums previously Suontador and that have been pat applied for by Design/Builder on account of Work performed by Subcontractors and that have been paid by City have (unless otherwise agreed in a writing between City and Design/Builder a true and correct copy of which is attached to the certification) been paid to the Subcontractors performing such Work, without any retention, withholding or back charge by Design/Builder.
11.2.2 Payment.
Timing.
Subject to the retention provisions of Section 11.3.1 of the Contract , amounts requested by Design/Builder for payment pursuant to ar Application for Payment properly prepared and submitted in accordance with the Contract Documents that are not disputed in good faith by City shall be paid within thirty (30) Days after receipt of such Application for Payment from Design/Builder.
.2 Rejection.
Application for Payments that are rejected shall be returned to )esign/Builder within seven (7) Days after receipt along with :
tatement of the reasons for the rejection; provided, however, tha failure by City to either timely reject an Application for Payment or specify any grounds for rejection shall not constitute a waiver of rights by City. Application for Payments that are rejected shall be corrected and resubmitted within seven (7) Days after receipt by Design/Builder of such statement by City.
Joint Payment.
City reserves the right to make any payment to Design/Builder, after written notice to Design/Builder, by checks jointly payable to Design/Builder and its Subcontractors or Design Professionals; provided, however, that nothing herein shall be construed as limiting City's right, following City's furnishing of notice and opportunity to be heard as set forth in Section 11.2.4.2, to directly discuss, negotiate, settle or pay, without further notice to or participation by Design/Builder, any stop notice claims asserted by Subcontractors
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or Design Professionals, of any Tier.
Payment for Stored Materials.
Payments may be made by City, at its discretion, on account of materials or equipment not incorporated into the Work but delivered to the Site and suitably stored by Design/Builder. Payments for Materials or Equipment stored shall only be considered upon submission by Design/Builder of satisfactory evidence that it has acquired title to same, that the Material or Equipment will be utilized in the Work and that the material is satisfactorily stored, protected and insured, or such other procedures satisfactory to City to protect City's interests. Materials or Equipment stored off-site, to be considered for payment, shall, in addition to the above requirements and unless otherwise specifically Approved by City, be stored in a bonded warehouse, fully insured, and available to City for inspection.
11.2.3 Withholding. In addition to the amounts which City may retain as provided in Section 11.3.1, below, City may withhold a sufficient amount from any payment or payments otherwise due to
Design/Builder as in City's sole discretion may be necessary to protect City against actual or threatened Loss in the event of any of the following:
Third-Party Claims. Third-party claims or stop notices filed or reasonable evidence indicating probable tiling ot such claims or stop notices:
Defective Work. Defective Work not remedied;
Nonpayment. Failure of Design/Builder to make proper
payments to its Subcontractors, Design Professionals or others for services, labor, materials or equipment
Inability to Complete. The following circumstances have occurred: (i) City has evidence of grounds for reasonabl loubt that the Work can be completed for the balance (
Dasign Builder has falled to provide to City, within fifieen (15) then unpaid to Design/Builder, and (i) Days of request by City, adequate security, in the torm oi escrowed funds or demand letter or credit, satisfactory to City assuring City that funds will be available for payment of sums in excess of the Contract Price that may be reasonably
needed to complete the Work within the Contract Time;
Violation of Law. Failure of Design/Builder or its
Subcontractors or Design Professionals to comply with any lawful or proper direction concerning the Work given by any representative of City authorized to have giver such
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instruction;
Penalty. Any claim or penalty asserted against City by virtue of Design/Builder's failure to comply with Applicable Laws; Failure to Meet Contract Time. Any liquidated damages
which may accrue as a result of Design/Builder failing to substantially complete the Work within the Contract Time; Set Off. Any reason specified elsewhere in the Contract Documents as grounds for a retention or that would legally entitle City to a set-off or recoupment;
Other Breach. Any breach of the Contract or any provision of the other Contract Documents.
11.2.4 Disbursement of Withheld Amounts.
Losses by City.
City, in its reasonable discretion, after providing the notice to Contractor required by Part .2 of this Section 11.2.4, may apply any withheld amount to the payment of any Loss that is the cause of a withholding of funds. Design/Builder agrees and hereby designates City as its agent for such purposes, and any payment so made by City shall be considered as a payment made under the Contract by City to Design/Builder. City shall not be liable to Design/Builder for any such payment made in good faith and following reasonable investigation. Payments may be made without a prior judicial determination of City's actual rights with respect to such Loss. City shall render to Design/Builder an accounting of any funds disbursed on behalf of Design/Builder.
.2 Notice of Grounds.
Prior to applying such amounts as stated herein above, City shall afford Design/Builder an opportunity to present good cause, if any, why the Loss in issue is not a valid or just basis for withholding against Design/Builder.
Continuous Performance.
Provided City pays the undisputed portion, if any, of funds withheld in good faith, Design/Builder shall maintain continuous and uninterrupted performance of the Work during the pendency of any disputes or disagreements with City over withholding of disputed funds.
11.2.5 Correction of Statement and Withholding of Payment. No
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inaccuracy or error in any Application for Payment provided by Design/Builder shall operate to release Design/Builder from the error, or from damages arising from the Work, or from any obligation imposed by the Contract Documents. City retains the right to subsequently correct any error made in any previously Approved Application for Payment, or progress payment issued, by adjustments to subsequent payments.
11.2.6 Deposits in Lieu of Withholding.
Substitution of Securities.
At the request and expense of Design/Builder, a substitution of securities may be made as found in Government Code
Section 16430 and as authorized by the Public Contract Code Section 22300 in lieu of monies retained by City to ensure performance under the Contract Documents. Securities equivalent in value to the retention amount required by the Contract Documents for each Application for Payment shall be deposited by
Design/Builder with a state or federally chartered bank in the State of California ("Escrow Agent"), which shall hold such securities pursuant to the escrow agreement until Final Payment is due in accordance with the Contract Documents. Securities shall be valued as often as conditions of the securities market warrant, but in no case less than once per month. Design/Builder shall deposit additional securities so that the current market value of the total of all deposited securities shall be at least equal to the total required amount of retention.
.2 Escrow Deposit.
Alternatively, to Section 11.2.6.1 above, and at the request and expense of Design/Builder, City shall deposit retention directly with Escrow Agent. Design/Builder may direct the investment of such deposited retention into interest bearing accounts or securities, and such deposits or securities shall be held by Escrow Agent upon the same terms provided for securities deposited by Design/Builder. .3 Escrow Agreement.
A prerequisite to the substitution of securities in lieu of retention or the deposit of retention into escrow shall be the execution by Design/Builder, City and Escrow Agent of an Escrow Contract for Deposit of Securities in Lieu of Retention and Deposit of Retention form provided by City. The terms of such escrow agreement are incorporated into the requirements of Section 11.2.6 of the Contract.
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11.2.7 Effect of Progress Payments.
Withholding.
Neither the payment, the withholding nor the retention of all or any portion of any progress payment claimed to be due and owing to Design/Builder shall operate in any way to relieve Design/Builder from its obligations under the Contract Documents. Design/Builder shall continue diligently to prosecute the Work without reference to the payment, withholding or retention of any progress payment. City shall pay all sums that are due and owing and not in dispute. The partial payment, withholding or retention by City in good faith of any disputed portion of a progress payment, whether ultimately determined to be correctly or incorrectly asserted, shall not constitute a breach by City of the Contract and shall not be grounds for an adjustment of the Contract Price or Contract Time.
.2 Payments by Design/Builder.
Design/Builder shall not include in its Applications for Payment sums on account of any Subcontractor's or Design Professional's portion of the Work that it does not intend to pay to such Subcontractor or Design Professional. Upon receipt of payment from City, Design/Builder shall pay the Subcontractor or Design Professional performing Work on the Project, out of the amount paid to Design/Builder on account of such Subcontractor's or Design Professional's Work, the amount to which said Subcontractor or Design Professional is entitled in accordance with the terms of its contract. • A withholding by City pursuant to the Agreement and General Condition and that is consistent with Applicable Law shall not relieve Design/Builder of its obligation to promptly satisfy, from its own funds if necessary, sums due to Subcontractors and Design Professionals who have properly performed Work that is included in Design/Builder's Application for Payment. Design/Builder shall, by appropriate agreement with each Subcontractor or Design Professional, require each Subcontractor or Design Professional to make payments to its subcontractors and suppliers in similar nanner. City shall have no obligation to pay or be responsible in any way for payment to a Subcontractor or Design Professional of Design/Builder.
No Acceptance.
No progress payment or partial or entire use or occupancy of the Project by City shall constitute an Approval or Acceptance of Work not in accordance with the Contract Documents.
.4 Warranty.
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Submission of an Application for Payment shall constitute a covered by an Application for Payment will pass to City either by incorporation in the construction or upon receipt of payment by • (ill) no Work
he Site, subject to an agreement under which an interest therein o an encumbrance thereon is retained by the seller or otherwis
11.3 Final Payment.
11.3.1 Retention. A sum equal to (i) zero percent (0%) for Design Services performed by Design/Builder or by any sub consultant retained by Design/Builder as of the date of execution of the Contract; (i) five percent (5%) of Costs of Work for those portions of the Work that have been authorized by City pursuant to Section 4.5.5 of the Contract to be self-performed by Design/Builder; (iii) five percent (5%) of Design/Builder Fee; (iv) five percent (5%) of Costs of Work for Performance and Payment Bonds fumished by Design/Builder (not Subcontractors) and insurance furnished by Design/Builder (not Subcontractors or Design Professionals); (vi) zero percent (0%) for Project Specific Insurance premiums; and (vii) five percent (5%) of all other Costs of Work, otherwise due to Design/Builder as progress payments shall be withheld by City from each progress payment and retained until such time as Final Payment is due. At City's sole discretion, after the overall Work is fifty percent (50%) completed, City may release the retention held on a particular Subcontractor's portion of the Work. Such release, if Approved by City, shall be made within sixty (60) Days following receipt of Design/Builder's certification that said Subcontractor's portion of the Work has been completed in accordance with the terms of the Contract Documents.
11.3.2 Final Payment Due. Final Payment shall not become due until sixty (60) Days after Acceptance, Final Completion and satisfaction by Design/Builder of all conditions to Final Payment, including, without limitation, submission to City of the following: (a) an Application for Final Payment and affidavit signed by an officer of Design/Builder that payrolls, bills for Materials and Equipment, and other indebtedness connected with the Project for which City or City's property or funds might be liable, (excepting those payrolls, bills and other debts in connection with Work for which Contractor has not been paid by City under the Contract Documents) have been paid or otherwise satisfied, (b) consent of surety, if any, to Final Payment, (c) a certificate that insurance required by the Contract Documents is in force following Final Completion of the Work, (d) conditional
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releases and waivers of lien, stop notice and bond rights upon final payment, complying with Applicable Laws, executed on behalf of itself and all Subcontractors and Design Professionals, of every Tier; (e) all record and "as-built" drawings of the Project; (f) all operations and maintenance manuals; (g) warranties have been provided by Design/Builder and Material providers and Subcontractors of any Tier; and (h) any other documents or information required by the Contract Documents as a condition of Final Payment or Final Completion.
11.3.3 Acceptance of Final Payment. Acceptance of Final Payment by Design/Builder shall constitute a waiver of all claims by Design/Builder against City excepting only those Claims that have been submitted by Design/Builder in the manner required by Section
4.2 of the General Conditions prior to or at the time of Design/Builder's submission to City of its Application for Final Payment.
11.3.4 Delay in Certificate of Occupancy. If Design/Builder has satisfied all of the requirements of the Contract Documents pertaining to Substantial and Final Completion of the Work, save and except for obtaining the issuance of a certificate of occupancy, then the City's obligation to make payment upon an Application for Final Payment that has been properly prepared and submitted in accordance with the Contract Documents shall not be excused or postponed because the City, acting in its regulatory capacity, has not, for reasons other than the negligence of Design/Builder or its Subcontractors or Design Professionals or the failure of Design/Builder to comply with the Contract Documents, failed to issue a certificate of occupancy for the Project.
12.0 INTENTIONALLY LEFT BLANK
13.0 INDEMNITY, INSURANCE, WAIVER OF CONSEQUENTIAL DAMAGES,
LIMITATION OF DESIGN/BUILDER LIABILITY, RISK OF LOSS
13.1 Indemnity.
13.1.1 Claims Relating to Design Services. To the fullest extent permitted by law (including, without limitation California Civil Code Section 2782.8), Design/Builder agrees to defend, indemnify, and hold harmless the City, its board and council members, officers, employees and agents ("City Indemnitees") from and against any and all losses, costs, liabilities, claims, damages, actions, judgments, settlements, expenses, defense costs, reasonable attorneys' fees, costs, fines and penalties ("Losses") that arise out of, pertain to, or relate to the Design/Builder's (or its Design Professionals or Subcontractors) negligence, recklessness or willful misconduct in the performance of Design Services under this Contract.
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Contract.
13.1.2 Other Claims. To the fullest extent permitted by law, Design/Builder agrees to defend, indemnify and hold harmless the City Indemnitees from and against any and all Losses of the following: (i) any tort claims for bodily injury (including death) or tangible property damage to the extent due to the negligent act or omission or willful misconduct of Design/Builder, or by its Subcontractors or Design Professionals, of any Tier in the performance of any portion of the Work by • Design-Builder, or by its Subcontractors or Design Professionals; (i) claims asserted by Subcontractors due to the nonpayment by Design-Builder, or by any of its Subcontractors or Design Professionals, of any Tier, for Work performed on or off the Site for the Project for which City has made payment to the Design- Builder; (iii) any alleged violation or infringement of patent rights, copyrights or other intellectual property rights to the extent caused by Design/Builder.
13.1.3 Survival. The provisions of the above indemnification obligations shall survive any termination of this Contract.
13.1.4 Severability. The invalidity of any portion of Section 13.1.1 shall not affect or render unenforceable any other portions thereof.
13.1.5 Indemnification of Adjacent Property Owners. In the event Design/Builder enters into any indemnification agreement with the owners of any adjacent property to enter upon such property for the purpose of performing Work or other activities incidental to the Work, the form and content of such indemnification agreement shall be Approved by City prior to commencement of any Work on or about such property. Design/Builder also shall protect City and City property as provided in Article 10 of the General Conditions. The provisions of this Section 13.1.5 shall be in addition to any other requirements or conditions imposed by the owners of such adjacent property.
13.2 Insurance.
Prior to commencing work, Design/Builder must procure, maintain and pay for insurance against claims for injuries to persons or damage to property that may arise from or in connection with the performance of the Services that may tie for or in cor by Design/Builder or Design Builder's agents, representatives, employees or sub consultants for the duration of this Contract. Design/Builder must obtain insurance that, at a minimum, meets the requirements for insurance set forth in Exhibit "12", Design/Builder Insurance Requirements.
13.3 Waiver of Consequential Damages
Neither party (including its trade contractors, design professional,
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subcontractors, agents, assignees, affiliates and vendors) shall be liable to the other for special, consequential indirect, punitive, exemplary or incidental damages of any kind arising out of or related to the performance or non-performance of the contract documents, and regardless of whether such losses, damages or liability arises from breach of contract or warranty, tort (including negligence), strict liability, or otherwise.
13.4 INTENTIONALLY LEFT BLANK.
13.5 Risk of Loss
Responsibility for the risk of loss or damage to the Work prior to and after Substantial Completion shall be mutually agreed upon in the GMP Amendment.
14.0 MISCELLANEOUS PROVISIONS
14.1 Governing Law.
This Contract shall be governed by the laws of the State of California.
14.2 Titles for Convenience.
The table of contents and the headings of articles and paragraphs are for convenience only and shall not modify rights and obligations created by this Contract.
14.3 Severability.
If a provision of this Contract is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected.
14.4 Successors and Assigns.
This Contract shall be binding on successors, assigns and legal representatives of and persons in privity of contract with City or Design/Builder. Design/Builder shall not assign, sublet or transfer an interest in this Contract without advance written Approval of City.
Assignment, subletting or transfer will not release Design/Builder from any of its obligations to City.
14.5 Conflicts.
In the event of a conflict between or among the provisions of this Contract, the Exhibits to the Contract or the General Conditions or the General Requirements, such conflict shall be resolved in the following order of precedence (the first order of precedence under clause (i) being the highest):
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(i) Fully executed Change Orders, Modifications or GMP Amendments (provided, however, that nothing contained in a Change Order shall be interpreted as modifying the General Conditions unless such Change Order expressly identifies by number the Section of the General Conditions to be modified);
(ii) The Contract and its Exhibits (other than the General Conditions, General Requirements); and
(iii) The General Conditions and General Requirements.
14.6 Interpretation.
Design/Builder and City acknowledge that the terms of this Contract and the General Conditions have been mutually negotiated and that such documents shall not be interpreted against either City or Design/Builder on the basis that either party was responsible for or in control of the drafting of such documents.
14.7 Survival.
All provisions of this Contract which by their nature continue beyond the termination or completion of performance under this Contract, including, without limitation, those obligations pertaining indemnification, insurance, confidentiality and ownership of documents, shall survive and continue in force after either termination or completion of performance by Design/Builder.
14.8 Entire Contract,
The Contract Documents represent the entire and integrated agreement between City and Design/Builder and supersedes all prior negotiations, representations or agreements, either written or oral. The Contract Documents may be amended or modified only by Change Order. Nothing contained in the Contract Documents shall be for the benefit of, create any contractual relationship with, or give rise to a cause of action in favor of any third party.
15.0 NOTICES
15.1 Delivery.
All notices, demands or requests to be given under this Contract shall be given in writing and conclusively shall be deemed received when:
(a) delivered personally, or (b) in the United States mail, postage prepaid, registered or certified, and addressed as hereinafter provided, or (c) received by the recipient by email transmission. Any document legally affecting the construction documents, including the contract or schedule, should be sent certified US mail.
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15.2 Addresses.
All notices, demands, requests or Approvals from Design/Builder to City, other than notices of default or termination, shall be addressed to the City at:
City of Santa Monica
CIvil Engineering Division
1437 4th Street, Suite 300
Santa Monica, California 90401
Attention: Selim Eren, Project Manager
Re: Sustainable Water Infrastructure Project - SP2456
Contract number 10736 (CCS)
All notices of default or termination shall be addressed to City to those listed above, and to the following individuals:
Santa Monica City Attorney Office
1685 Main Street, Third Floor
Santa Monica, California 90401
Attention: Lane Dilg City Attorney
Re: Sustainable Water Infrastructure Project - SP2456
Contract number 10736 (CCS)
All notices, demands or requests from City to Design/Builder shall be addressed to:
Kiewit Infrastructure West Co.
10704 Shoemaker Ave.
Santa Fe Springs, California 10704
Attention: Tony Joyce, Vice President,
Re: Sustainable Water Infrastructure Project - SP2456
Contract number 10736 (CCS)
15.3 Change in Address.
In the event of any change of address, the moving party is obligated to notify the other party of the change of address in writing. Each party may amend, supplement and update the notice list to add, delete or replace any listed individuals; however, the amendment must be in writing.
16.0 GOVERNMENTAL POWERS
This Contract is entered into by City in its proprietary capacity only and nothing in this Contract shall be deemed directly or indirectly to restrict or to impair in any manner or respect whatsoever any of City's regulatory governmental powers or rights, or the exercise thereof by City, with respect to the Work or the Project.
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17.0 EXHIBITS
The following Exhibits are attached to this Contract and incorporated herein:
Exhibit 1: Bridging Documents
Exhibit 2: General Conditions
Exhibit 3: Key Personnel (A. Design, B. Construction)
Exhibit 4: Permit List
Exhibit 5: Preconstruction and Preliminary Construction Schedule Exhibit 6 Budget for Pre-Construction
Exhibit 7: Rate Schedule
Exhibit 8: Preliminary Information Reports
Exhibit 9: Standard Forms
Exhibit 10: Sub-contractor Contract (executed with Ex. 15: GMP Amendment for Construction)
Exhibit 11: Living Wage Ordinance Certification
Exhibit 12: Design/ Builder Insurance Requirements
Exhibit 13: General Requirements
Exhibit 14: Sustainable Building Administrative Instruction Exhibit 15: GMP Amendment for Construction (to be included at the time of GMP Amendment)
Exhibit 16: City of Santa Monica City-Wide Soil Management Plan Exhibit 17: BIM Standards (to be submitted as a Deliverable with the Basis of Design Submittal)
Exhibit 18: Operations Phase Services
Exhibit 19: California State Water Board Construction Installment Sale Contract No. D17-01006
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IN WITNESS WHEREOF, the parties have caused this Contract to be executed the date and year first above written.
CITY OF SANTA MONICA,
a municipal corporation
By: Cate Dal
RICK COLE
APPROVED AS TO FORM:
LANE DILG
City Attorney
ATTEST:
DENISE ANDERSON-WARREN
City Clerk
DESIGN/BUILDER
Kiewit Infrastructure West Co.
or Apart, Tour Jore
Its:
Vice President