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GMP AMENDMENT PERTAINING TO
DESIGN/BUILD AGREEMENT
By and Between
The City of Santa Monica
and
Kiewit Infrastructure West Co.
THIS GMP AMENDMENT PERTAINING TO DESIGN/BUILD AGREEMENT (“GMP Amendment”) is entered into on ______________(“Effective Date”) by and between the City of Santa Monica, a municipal corporation (“City”), located at 1685 Main Street, Santa Monica, California, and Kiewit Infrastructure West Co(“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, Contractor’s 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 entered into that certain Design/Build Agreement, Contract No. 10736 (CCS), dated November 19, 2018 (“Design/Build Agreement”), 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”).
D. In accordance with the provisions of the Design/Build Agreement, Design/Builder has submitted a GMP Amendment Proposal to the City and, after negotiations, City and Design/Builder have agreed to the terms and conditions of the GMP Amendment Proposal, except as modified by this GMP Amendment.
NOW THEREFORE, in consideration of the mutual promises and undertakings DocuSign Envelope ID: 3EDC484A-E4AC-4B42-B5D6-9980FAEE07C6 1/15/2020
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hereinafter 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:
ARTICLE 1.0 DEFINITIONS.
Capitalized terms herein shall have the same meaning as in the Design/Build Agreement, including all exhibits attached thereto. Capitalized terms used herein that do not appear in the Design/Build Agreement are defined below:
1.1 Acceptance Testing: Acceptance testing has the same meaning as set forth in the Start Up and Commissioning Plan (Exhibit 6).
1.2 AWTF or Plant: Advanced Water Treatment Facility
1.3 Compensable Delay Rates: Rates set forth in Section 7.3 of this GMP Amendment used to compensate Design-Builder for Compensable Delays in accordance with Sections 3.4.2 and 3.4.3 of the Design/Build Agreement.
1.4 DDW: California Division of Drinking Water
1.5 Guaranteed Plant Performance Parameters: The performance parameters set forth in Sections 6.1, 6.2 and 6.3 of this GMP Amendment that must be achieved as a condition of Substantial Completion.
1.6 LACFCD: Los Angeles County Flood Control District owns and operates storm drains within the City of Santa Monica.
1.7 Lump Sum: “Lump Sum” means a forward-looking price to perform the Work including but not limited to Project Criteria reflecting Contractor’s acceptance of the potential risk of cost overruns and the potential benefit of cost underruns.
1.8 Punch List: A list prepared by Design-Builder and approved by City, describing items of Work that must be completed or corrected prior to Final Completion of the Project.
1.9 RWQCB: Regional Water Quality Control Board regulates the capture of stormwater and urban runoff and discharges into storm drains and regulated bodies of water.
1.10 SCAQMD: South Coast Air Quality Management District regulates air quality for the Los Angeles region, including the City of Santa Monica.
1.11 SCE: Southern California Edison is the utility providing electrical service within Santa Monica.
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1.12 SMURRF: Santa Monica Urban Runoff Recycling Facility.
ARTICLE 2.0 THE CONTRACT DOCUMENTS.
The Contract Documents consist of the following collection of documents:
(i) Executed GMP Amendment, including all exhibits thereto. (ii) Executed Design/Build Agreement between City and Design/Builder, including all exhibits thereto.
(iii) Special Provisions and Technical Specifications.
(iv) Performance and Payment Bonds.
(v) Insurance Forms.
(vi) Plans and Drawings.
(vii) Technical Reports, including, without limitation, geotechnical, surveying, and site investigation.
(viii) Supplements, Attachments, and exhibits attached to the above items. (ix) Modifications.
(x) Change Orders.
(xi) Field Orders.
(xii) Permits.
ARTICLE 3.0 CONFLICTS.
In the event of any conflicts between GMP Amendment Proposal and this GMP Amendment, the GMP Amendment shall prevail. In the event of any conflicts amongst Contract Documents, the specific shall prevail over the general, unless otherwise stated.
ARTICLE 4.0 KEY PERSONNEL DURING CONSTRUCTION PHASE.
Design/Builder’s Key Personnel during the Construction Phase are listed in the organization chart attached to this GMP Amendment as Exhibit 1, which supersedes and replaces Exhibit 3B of the Design/Build Agreement.
ARTICLE 5.0 CONTRACT PRICE.
5.1 Contract Price Components. The Contract Price in the amount not to exceed EIGHTY-SIX MILLION NINE HUNDRED SEVENTEEN THOUSAND AND TWENTY-THREE DOLLARS AND 70/100 CENTS ($86,917,023.70) consists of the sum of the following components:
The Preconstruction GMP already established by the Design/Build Agreement and any executed amendments thereto, in an amount not to exceed SEVEN MILLION
ONE HUNDRED FOUR THOUSAND SIX HUNDRED AND EIGHT-NINE DOLLARS AND 39/100 CENTS ($7,104,689.39); plus
The Construction GMP in an amount not to exceed SEVENTY-NINE MILLION
EIGHT HUNDRED TWELVE THOUSAND THREE HUNDRED THIRTY-FOUR DOLLARS AND 31/100 CENTS ($79,812,334.31) for Work performed by Design/Builder DocuSign Envelope ID: 3EDC484A-E4AC-4B42-B5D6-9980FAEE07C6 4 of 22
during the Construction Phase in accordance with Section 5.0 of the Design/Build Agreement and this GMP Amendment.
5.1.1 City and Design/Builder each understands, acknowledges, and agrees that the Construction GMP includes the following components (Exhibit 2):
i. $2,500,000 Lump Sum payment to the Design/Builder for design services through final design (100%) to be paid progressively as the design is completed;
ii. $3,500,000 Lump Sum price in consideration for
Design/Builder’s acceptance of the following risks (collectively, “Allocated Risks”):
a. Design/Builder’s acceptance of all risk resulting from or relating to Type I Differing Site Conditions, per Section
11.3;
b. Design/Builder’s acceptance of certain risks related to obtaining permits or authorization from utility companies and other non-City third parties, per Section 18, herein; c. Design/Builder’s acceptance of certain risks related to SCE’s utility connection to the Plant, per Section 17,
herein;
d. Design/Builder’s acceptance of all risks relating to delays in achieving Guaranteed Plant Performance parameters,
as required by Article 6.0 and Exhibit 6_ of this
amendment herein;
e. Design/Builder’s acceptance of all risks relating to meeting Express Project Criteria (Exhibit 4), including, without limitation:
.1 unanticipated costs for coordination among and
resequencing of Design/Builder’s staff and
Subcontractors;
.2 omissions of specified City requirements;
.3 Design/Builder’s errors and omissions in the design, pricing, or scheduling of the Work;
.4 unanticipated material cost increases in the Work;
.5 costs incurred because of Design/Builder’s
Subcontractors 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;
.7 acceleration and overtime; or
.8 labor disputes.
f. Design/Builder’s resolution of the Owner’s Comment Log, per Section 5.1.2(iv);
g. Design/Builder’s inclusion in the Construction Schedule of thirty (30) working days for inclement weather; following use of all thirty (30) working days in the Construction DocuSign Envelope ID: 3EDC484A-E4AC-4B42-B5D6-9980FAEE07C6 5 of 22
Schedule, Section 8.0, herein, shall be applicable to any Delay caused by inclement weather; and
h. Design/Builders acceptance of all clarifications listed in Exhibit 4 of this GMP Amendment.
iii. The parties understand, acknowledge, and agree that Contractor’s acceptance of the Allocated Risks is in
consideration for Lump Sum pricing, as defined in Section 1.7 and subject to Section 22 herein, of the Construction GMP.
5.1.2 City and Design/Builder each understands, acknowledges, and agrees that:
i. the Construction GMP and, specifically, price estimation of the Allocated Risks, were negotiated transparently and in good faith by the City and Design/Builder;
ii. the Allocated Risks were priced and negotiated with recognition by both parties that the Design-Builder is in the best position to avoid or mitigate said Allocated Risks;
iii. the Excusable Delay granted to Design/Builder per Section 7.4.2, herein, constitutes additional consideration for Design/Builder’s acceptance of the Allocated Risks;
iv. the Express Project Criteria (Exhibit 4) includes the Design Comments Log, and the Lump Sum price for the Construction GMP includes resolution of said comments without adjustments to Contract Price or Contract Time unless (a) City changes or modifies the Project Criteria and (b) such changes or
modifications constitute Extra Work.
v. any Delays caused by Allocated Risks do not constitute “delays that are unreasonable under the circumstances involved” within the meaning of Public Contract Code section 7102.
5.2 Amounts Paid to Date. Design/Builder acknowledges and agrees that as of the Effective Date, Design/Builder has been paid SEVEN MILLION ONE HUNDRED
FOUR THOUSAND SIX HUNDRED EIGHTY-NINE DOLLARS AND THIRTY-NINE CENTS ($7,104,689.39) of the Preconstruction GMP and is owed the balance of ZERO DOLLARS ($0.00). Design/Builder further acknowledges and agrees that it has no claims pending against the City and has no knowledge of facts or circumstances which would justify an increase in the Contract Time and/or Contract Price.
5.3 Construction GMP. The Construction GMP is based upon the Contract Price & Construction GMP Cost Summary attached to this GMP Amendment as Exhibit 2 and the Schedule of Values attached to this GMP Amendment as Exhibit 2.
Design/Builder and City each understands, acknowledges and agrees that (i) the Construction GMP includes a Lump Sum amount for Design/Builder’s acceptance of Allocated Risks in lieu of a separate Design/Builder Contingency based upon a percentage of the Contract, per Section 2.4.1 of the Contract; (ii) City and Design/Builder each waives any rights to seek Savings based upon sharing 60%:40% of Design/Builder Contingency, per Section 2.5 of the Contract; and (iii) the Construction GMP does not include City Contingency, per Section 2.4.4 of the Contract.
5.4 Operations GMP. The Design/Builder shall deliver an Operations Phase GMP to the City within sixty (60) days of Design/Builder’s completion of design DocuSign Envelope ID: 3EDC484A-E4AC-4B42-B5D6-9980FAEE07C6 6 of 22
documents (i.e. 100% Plans and Specifications) and receipt of the State Water Resources Control Board’s review of the Phase 2 Engineering Report, including subsequent Phase 2 Inspection and Testing Plan(s). The Design/Builder and City shall each negotiate in good faith to execute an Operations Phase Amendment no later than 180 days prior to the start of the Plant Commissioning described in Exhibit 6A Section
8.4. ARTICLE 6.0 TESTING AND GUARANTEED PLANT PERFORMANCE
PARAMETERS
6.1 Pre-Commissioning, Commissioning, Functional and Acceptance Testing. Design/Builder shall comply with the pre-commissioning, commissioning, functional and acceptance testing requirements set forth in Exhibit 6A.
6.2 AWTF Guaranteed Plant Performance Parameters. Design/Builder shall achieve the AWTF Guaranteed Plant Performance Parameters set forth in Exhibit 6B.
6.3 SMURRF Guaranteed Plant Performance Parameters. Design/Builder shall achieve the SMURRF Guaranteed Plant Performance Parameters set forth in Exhibit 6B.
ARTICLE 7.0 CONTRACT TIME.
7.1 Construction Phase Notice to Proceed. City shall issue a Construction Phase Notice to Proceed upon the occurrence of the following conditions precedent:
(i) An executed copy of this GMP Amendment;
(ii) Issuance of a California Coastal Commission Coastal Development Permit; (iii) City approval of Design/Builder’s Construction Impact Mitigation Plan; (iv) Written notification by State, approving an amendment to the City’s State Revolving Fund loan;
(v) City’s receipt of Design/Builder’s insurance and bond forms; (vi) City’s acceptance of Design/Builder’s Baseline Construction Schedule to establish the Contract Time for Substantial Completion and Final Completion of the Work in accordance with requirements of the Contract Documents; and
(vii) City’s acceptance of Design/Builder’s detailed Schedule of Values in accordance with requirements of the Contract Documents
7.2 Contract Time for the Construction Phase. Design/Builder shall diligently prosecute the Work to achieve Substantial Completion within 912 Days after the date specified in the Construction Phase Notice to Proceed.
7.2.1 Substantial Completion. For purposes herein, and notwithstanding anything to the contrary in the General Conditions, the terms “Substantial Completion” and “Substantially Complete” refer, to the point at which the entire Work, or any portions thereof specially designated by City, is: (i) sufficiently complete in accordance with the Contract Documents so that such Work can be beneficially occupied and utilized by City for its intended purpose (except for minor items which do not impair City's ability to so DocuSign Envelope ID: 3EDC484A-E4AC-4B42-B5D6-9980FAEE07C6 7 of 22
occupy and use the Work), and (ii) Design/Builder has successfully demonstrated to the City’s satisfaction that the Project meets all of the Design/Builder’s obligations under the Contract Documents. Without limiting the generality of the foregoing, the City and Design/Builder agree that the following shall be completed before the Project is considered Substantially Complete:
i. Design/Builder’s completion of all Pre-Commissioning, Commissioning, Functional, and Acceptance Test Completion in accordance with Article 6.0 of this GMP Amendment;
ii. Demonstrated achievement of the Guaranteed Plant Performance Parameters in accordance with Article 6.0 of this GMP Amendment and compliance with the provisions of the California Code of Regulations specified in Exhibits 6A and 6B as obligations of the Design/Builder;
iii. Issuance of all permits, whether final, temporary, or conditional, required to operate the AWTF as a non-potable water recycling plant, as defined in California Code of Regulations Title 22 – Division 4, Chapter 3, Article 3 – Disinfected Tertiary Recycled Water, including, without limitation, permits required by the LACFCD, RWQCB, and SCAQMD;
iv. Completion of all new and restorative Work performed on Pico Boulevard, Main Street, Vicente Terrace, Ocean Avenue, and Civic Center Drive in accordance with the Contract Documents;
v. City’s issuance of certificates of occupancies for the AWTF and SMURRF; and
vi. Design-Builder submittal, and City approval, of the Punch List for the Project.
7.2.2 Final Completion. Design/Builder shall diligently prosecute all Work required by Final Completion after receipt of a Notice of Substantial Completion from the City. For purposes herein, and notwithstanding anything to the contrary in the General Conditions 1.1.39, Final Completion shall occur within sixty (60) days of Substantial Completion within which the following conditions must be satisfied:
i. Punch List Close-Out. Completion of all Punch List items defined at the time of Substantial Completion with City approval. The Punch List prepared by Design/Builder shall describe items of Work that must be completed or corrected prior to Final Completion of the Project. The Punch List shall not operate to amend the Contract Documents. Although Design/Builder will endeavor to include all items on the Punch List that appear incomplete, a good faith failure to include an item that does not comply with the Contract Documents shall not relieve Design/Builder of the obligation to complete or correct any such omitted item prior to Final Completion and City's Acceptance of the Work. As a part of its approval of the Punch List at Substantial Completion, City shall have the right to supplement the Punch List with additional items of incomplete or incorrect Work, in each case consistent with the Contract Documents, which shall be performed by Design/Builder.
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ii. Completion of Civic Center Parking Lot Work. Design-Builder shall complete all Work at the Civic Center Parking Lot including the new fire / bike lane connecting Pico Boulevard to Civic Center Drive in accordance with the Contract Documents as a Punch List item. City’s issuance of the certificate of occupancy or equivalent for the Civic Center Parking Lot Work and above ground improvements; iii. Submission of Final Payment Application. After Design/Builder has completed all items listed on the Punch List and believes that it has achieved Final Completion, it shall submit its application for final payment and request final inspection. City shall schedule a Final Completion inspection, which shall be attended by Design/Builder's Design Professionals, the City, Design/Builder's superintendent and such others as City deems appropriate. Design/Builder shall, along with its final Application for Payment, submit to City all applicable warranties, guaranties, maintenance and operations manuals, and the final Record Documents showing the actual location and configuration of electrical, mechanical, plumbing and HVAC systems satisfactory to City. Once City determines that the Project has reached Final Completion in accordance with the Contract Documents, it may, at its option, cause to be signed and recorded a notice of completion. iv. Demobilization. Demobilization of all Construction Phase facilities, equipment, and materials.
7.3 Compensable Delay Rate. In accordance with Section 3.4.2 of the Design/Build Agreement, the Compensable Delay Rate shall be:
Rate 1 - For Compensable Delay incurred within 180 Days of the Construction Phase Notice to Proceed: $12,500/Day;
Rate 2 - For Compensable Delay incurred after 180 Days but on/ before 540 Days from the Construction Phase Notice to Proceed:
$19,500/Day;
Rate 3 - For Compensable Delay incurred after 540 Days but on/before 650 Days from the Construction Phase Notice to Proceed: $13,500/day; Rate 4 - For Compensable Delay incurred after 650 Days from the Construction Phase Notice to Proceed: $7,500/day
Any adjustments to the Contract Time and/or Contract Price for Compensable Delay shall be made in accordance with the provisions of Article 8.3 of the General Conditions. For the purpose of applying the time periods above, each time period shall be extended in accordance with the definition of Excusable Delay as well as Section 8.3 of the General Conditions by the equivalent duration of any Compensable Delay (i.e. should a 5 Day Compensable Delay be incurred during the Rate 1 time period, the duration for Rate 1 shall extend to 185 Days from the Construction Phase Notice to Proceed and Rate 2, Rate 3, and Rate 4 time periods shall adjust accordingly). City and Design/Builder agree that the examples in Exhibit 2 illustrate how the Compensable Delay Rate will be calculated for Compensable Delay. Design/Builder acknowledges, understands, and agrees that the above Compensable Delay Rates are all inclusive, including, without limitation, all overhead, profit, fees, and mark-ups.
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Nothing herein shall be interpreted to modify or void any provisions relating to Article 8.3 of the General Conditions, it being understood and agreed to by City and Design/Builder that this Section 7.3 shall be interpreted solely to establish a Compensable Daily Rate amount.
7.4 Liquidated Damages. City and Design/Builder each acknowledges and agrees that if Design/Builder fails to complete the Work within the Contract Time fully and satisfactorily, City will suffer, as a result of Design/Builder’s failure, substantial damages which are both extremely difficult and impracticable to ascertain. Such damages may include, but are not limited to:
i. Loss of public confidence in City and its contractors and consultants; ii. Loss of public use of public facilities;
iii. Extended disruption to public; and
iv. Loss of water production.
7.4.1 Liquidated Damages Amount and Calculation. City and Design/Builder acknowledge the difficulty in determining the actual damage the City will incur if Design/Builder fails to achieve Substantial Completion of the entire Work within the Contract Time. Therefore, the parties agree that in addition to all equitable remedies and other damages to which City may be entitled other than delay damages, in the event Design/Builder shall fail to achieve Substantial Completion of the entire Work within the Contract Time, Design/Builder shall pay City as Liquidated Damages (“LDs”) the amount of $9,200/Day for each Day occurring after the expiration of the Contract Time until Design/Builder achieves Substantial Completion of the entire Work. The LDs amount is not a penalty but considered to be a reasonable estimate of the amount of damages City will suffer for delayed Substantial Completion.
7.4.2 Excusable Delay for AWTF Guaranteed Plant Performance Parameters. If all conditions of Substantial Completion, except for those conditions set forth in Sections 7.2.1(i)-(ii), are achieved within the Contract Time, Design-Builder shall have an additional sixty (60) days of Excusable Delay (but not Compensable Delay) to demonstrate achievement of the AWTF Guaranteed Plant Performance Parameters for potable water quality and production per Article 6.0 of this GMP Amendment before the LDs set forth in Section 7.4.1 are assessed. City shall have the option, in its sole discretion, to assess LDs if Contractor has not achieved the other conditions to Substantial Completion within the Contract Time.
7.4.3 Liquidated Damages Apportionment. LDs shall be apportioned in accordance with Article 8.3.1 of the General Conditions. City shall not be liable to Design/Builder for Compensable Delay damages, and Design/Builder shall not be liable to City for LDs, based upon Design-Builder’s plan, intention or schedule to complete the Work earlier than the Contract Time set forth in this GMP Amendment.
7.4.4 Exclusive Remedy for Delay. Notwithstanding any other provision of this GMP Amendment and/or the Design-Build Agreement to the contrary, City and Design/Builder each acknowledges and agrees that the Liquidated Damages set forth in Section 7.4.1 shall be City’s exclusive remedy for delay damages caused by Design/Builder’s failure to achieve Substantial Completion of the entire Work within the Contract Time.
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7.4.5 Delay Damages upon Abandonment. If Design-Builder abandons the Work, the City may elect to seek actual delay damages proximately caused by Design-Builder’s failure to complete the Work within the Contract Time and its subsequent abandonment in addition to all equitable remedies and other damages to which City may be entitled other than delay damages, in lieu of the LDs provided for in Section 7.4.1. For purposes herein, the Design/Builder shall be deemed to have abandoned the Work if, prior to the achievement of Substantial Completion and without advance permission from the City, Design/Builder fails to provide personnel and resources to complete the Work within the Contract Time.
ARTICLE 8.0 CONSTRUCTION SCHEDULE.
The Construction Schedule attached to GMP Amendment as Exhibit 3 sets forth the Design/Builder’s construction schedule to establish the Contract Time for Substantial and Final Completion of the entire Work, and supersedes all estimated construction schedules submitted by Design/Builder to City prior to the Effective Date of this GMP Amendment.
ARTICLE 9.0 INCLEMENT WEATHER ALLOWANCE.
Section 1.1.35 of the General Conditions in Exhibit 2 of the Design/Build Agreement is deleted in its entirety and replaced with the following text:
1.1.35 EXCUSABLE DELAY: A Delay for which Contractor may be entitled under the Contract Documents to an extension of time, but not compensation. "Excusable Delay" means any delay to the path of activities that is critical to Substantial Completion of the Work within the Contract Time caused by conditions beyond the control or foreseeability, and without the fault or negligence of Contractor, its Design Professionals, or its Subcontractors, of any Tier, such as, but not limited to: war, embargoes, fire, unavoidable casualties, unusual delays in transportation, national emergency. Without limitation to the foregoing, the financial inability of Contractor or any Subcontractor or Subsubcontractor, shall not be deemed conditions beyond Contractor's control or foreseeability. Contractor may claim an Excusable Delay only if all Work on a critically scheduled activity is stopped for more than four (4) hours of a normal eight (8) hour scheduled working day. A Compensable Delay shall, to the extent that it is concurrent with an Excusable Delay, be conclusively deemed an Excusable Delay.
Section 01 3213 Project Schedule, Part 3 – EXECUTION, 3.05 J of the Exhibit 13 General Requirements of the Design/Build Agreement is deleted in its entirety and replaced with the following text:
CONTRACTOR shall allow for inclement weather in the Proposed Baseline Schedule by incorporating an activity titled “Inclement Weather Allowance” as the last activity prior to the Substantial Completion Milestone. No other activities may be concurrent with it. The duration of the Inclement Weather Allowance activity will be 30 scheduled workdays.
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1. “Inclement Weather Allowance” is a lost workday, caused by inclement weather conditions, and is defined as a day in which all Work on a critically scheduled activity is stopped for more than four (4) hours of a normal eight (8) hour working day. The CONTRACTOR shall notify the CITY in writing when a lost workday has occurred due to inclement weather. As inclement weather days occur, are recognized and approved by the CITY as an inclement weather day, the inclement weather activity duration will be reduced to account for the approval of an inclement weather day.
2. If the effects of inclement weather from a non- scheduled workday carry forward to a scheduled workday and impacts the Critical Path as noted above, then the scheduled workday will be considered impacted by weather. Any unused Inclement Weather Allowance at the end of the project will be shown as available float to the Substantial Completion Milestone. Compensable time extensions will be granted for inclement weather to Substantial Completion milestone only after the weather impact area affecting the critical path work has exhausted the allotted cumulative Inclement Weather Allowance.
ARTICLE 10.0 EXPRESS PROJECT CRITERIA.
The Express Project Criteria for the Project are attached to this GMP Amendment as Exhibit 4, supersedes and replaces the Express Criteria set forth in Exhibit 1 to the Design/Build Agreement. City and Design/Builder each acknowledge and agree that the Express Project Criteria attached hereto as Exhibit 4_constitutes the basis for the Construction GMP.
ARTICLE 11.0 DIFFERING SITE CONDITIONS.
11.1 Design-Builder’s Site Investigation. In accordance with its obligations under Sections 4.1.3 and 4.3.4 of the Design/Build Agreement, Design/Builder has conducted its own independent geotechnical services, surveying, and site investigation for the Project, Site, and Existing Improvements (collectively, “Site Conditions”) during the Pre-Construction Phase of the Work, and acknowledges and agrees that:
i. Design/Builder has relied upon its own investigation as the basis for (a) drafting the 60% Construction Drawings and Design Submittal, (b) submitting its GMP Amendment Proposal, and (c) executing this GMP Amendment; ii. City has not made any affirmative representations regarding Site Conditions upon which Contractor has relied; and
iii. Design/Builder bears sole responsibility for (a) the completeness and accuracy of the Design/Builder’s investigation of Site Conditions, (b) completeness and accuracy of the Contract Documents and (c) any inferences or interpretations Design-Builder made on the basis of its investigation of Site Conditions.
11.2 Exceptions. Notwithstanding Section 11.1, Design/Builder’s acceptance of certain site conditions as Allocated Risks does not include, and explicitly excludes DocuSign Envelope ID: 3EDC484A-E4AC-4B42-B5D6-9980FAEE07C6 12 of 22
Type II Differing Site Conditions. To the extent Type II Differing Site conditions risks are encountered by Design/Builder during the course of the Work, Contractor is only eligible for adjustments to the Contract Price and/or the Contract Time in accordance with Section 21.0, below.
11.3 Modified Differing Site Conditions Provisions. Section 3.19.2 of the General Conditions is deleted in its entirety and replaced with the following text:
3.19.2 Differing Site Conditions are those conditions
encountered at the Site or in Existing Improvements that are (1) subsurface or concealed conditions which differ materially from those indicated in the Contract Documents (referenced hereinafter as “Type I Differing Site Conditions”); or (2) unknown physical conditions of an unusual nature, which differ materially from those ordinarily encountered and generally recognized as inherent in the construction activities of the character provided for in the Contract Documents (also referenced herein as “Type II Differing Site Conditions”). City and Design/Builder agree that (i) Design/Builder shall bear the sole risk of Type I Differing Site Conditions and (ii) City shall bear the sole risk of Type II Differing Site Conditions.
Without limiting the generality of the foregoing, Type I Differing Site Conditions includes, without limitation, all known and/or unknown utilities, utility conflicts/relocations, and relocations of/by third party utilities and groundwater levels (elevations); and Type II Differing Site Conditions includes subsurface preexisting hazardous materials, subsurface pre-existing contaminated materials, subsurface paleontological
materials, and subsurface archeological materials.
Section 3.19.5 of the General Conditions is deleted in its entirety and replaced with the following text:
3.19.5 Any adjustment to the Contract Price and/or Contract Time based upon Type II Differing Site Conditions shall be handled in accordance with Section 21.0 of this GMP Amendment.
ARTICLE 12.0 INSPECTIONS
12.1 Section 3.20.1 of the General Conditions is deleted in its entirety and replaced with the following text:
3.20.1 In order to allow for Quality Assurance inspection by City and other agencies, or any Quality Assurance inspection required elsewhere in the Special Provisions and Technical Specifications, Design/Builder shall share with City once a week, its 3 week look ahead schedule, and identify which activities will have Quality Control inspection by 3rd Party Contractor inspector(s). Work will not require prior City approval to proceed, but City can stop Work DocuSign Envelope ID: 3EDC484A-E4AC-4B42-B5D6-9980FAEE07C6 13 of 22
should it find non-conforming Work, and request Design/Builder provide corrective actions prior to proceeding. Design/Builder will perform Quality Control services as outlined in Exhibit _9_.
12.2 Section 3.20.2 of the General Conditions is deleted in its entirety and replaced with the following text:
3.20.2 Whenever Design/Builder desires to carry on the Work of the Contract at hours other than 6:00 AM to 6:00 PM, Monday through Friday and from 8:00 AM to 5:00 PM on Saturdays, it shall identify that Work on the 3 week look ahead schedule, on a weekly basis, and if approved, proceed with the work. City offices are closed on alternate Fridays commencing January 12, 2001, and every other Friday thereafter. Inspections by the City’s Building Department will not be available on these days. Nothing herein shall be construed to waive or modify Design/Builder’s obligations to strictly comply with all Applicable Laws, including, without limitation, the City’s noise ordinance.
12.3 Section 3.20.3 of the General Conditions is deleted in its entirety and replaced with the following text:
3.20.3 If any Work is concealed or performed without Quality Control as specified above, then the Work can be subject to such tests or exposure as may be necessary to prove to City that the materials used, and the Work done are in conformity with the Contract Documents. All labor and equipment necessary for exposing and testing shall be furnished by Design/Builder at its expense. Design/Builder shall replace, at its own expense and without reimbursement by City, any materials or Work damaged by exposure and any faulty materials or work evidenced by such exposure or testing.
12.4 Section 3.20.4 of the General Conditions is deleted in its entirety and replaced with the following text:
3.20.4 When, City requests to perform quality assurance inspection for Work that must be made at the plant or mill of the manufacturer or fabricator of material or equipment, Design/Builder shall notify City a minimum of twenty-one (21) calendar days in advance to allow for arrangements to be made for such inspection.
ARTICLE 13.0 PROGRESS AND FINAL SUBMISSIONS
City and Design/Builder each acknowledges and agrees that the Construction Drawings and Design Submittals referenced in the Exhibit 4 attached to this GMP Amendment constitute the basis for the Construction GMP.
ARTICLE 14.0 MODIFICATIONS TO PERMIT LIST
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The Permit List set forth in Exhibit 5 to the Design/Build Agreement is superseded and replaced in its entirety with the Exhibit 5 attached to this GMP Amendment.
ARTICLE 15.0 SUBCONTRACTORS AND SELF-PERFORMED WORK
Design/Builder acknowledges and agrees that it shall provide the City with a submittal clearly showing portions of the work to be “Self-Performed Work” and that the Subcontractors listed in Exhibit 12_ have been pre-qualified by Design/Builder in accordance with Section 4.5.2 of the Design/Build Agreement and shall perform the Work specified in the submittal. Any change of Subcontractors shall be made in accordance with the Subletting and Subcontracting Fair Practices Act (Public Contract Code sections 4100 et seq.)
ARTICLE 16.0 RISK OF LOSS
Design-Builder shall, under this GMP Amendment and the Design/Build Agreement, have care, custody, control and insurance obligations relating to the Project (including but not limited to having responsibility for the security of the Site and risk of loss), through Design-Builder’s achievement of Final Completion. Upon achievement of Final Completion, the care, custody, control and insurance obligations relating to the Project (including but not limited to having responsibility for the security of the Site and risk of loss), shall be allocated to Design-Builder under the terms of the executed Operations Phase Amendment.
ARTICLE 17.0 WORK WITH SOUTHERN CALIFORNIA EDISON (SCE) Design/Builder shall provide permanent power service to the Project from the SCE tie-in at the SCE’s utility meter identified in Contract Documents (“SCE Utility Meter”).
Design/Builder shall coordinate, schedule, and perform all work necessary to ensure that SCE can provide permanent power to and energize the Project within 650 days from the Notice to Proceed for Construction plus any extensions to the Contract Time authorized by the Contract Documents (“SCE Event”), as evidenced by an updated City approved Construction Schedule. Provided that Design/Builder has coordinated, scheduled, and performed all work necessary to ensure that the Project is energized by the SCE at the SCE Utility Meter on or before the SCE Event, Design/Builder shall not be responsible for SCE’s delay in tying into the SCE Utility Meter. Any adjustment to the Contract Price and/or Contract Time based upon delays to the SCE Event shall be handled in accordance with Section 21.0 of this GMP Amendment.
ARTICLE 18.0 PERMITS AND APPROVALS
Design/Builder shall coordinate, schedule, and perform all work necessary to obtain required approvals and/or permits in a timely manner so as not to impact the schedule.
Delays caused solely by any third party entities, that impact the Project’s critical path, and are not caused in whole or in part by the fault, negligence, or breach of DesignBuilder or City, shall be considered as Excusable Delay (but not Compensable Delay) if if Design/Builder further demonstrates that:
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i. it has provided all information and submittals required to obtain necessary approvals and/or permits in accordance with the latest City approved Construction Schedule;
ii. it has complied with all requirements of this GMP Amendment; and iii. the approving or permitting agency fails to act on the approval or permit application within the time contemplated in the latest City reviewed Construction Schedule.
ARTICLE 19.0 CEQA MITIGATION
Design/Builder shall comply with all mitigation measures set forth in the SWIP MND attached hereto as Exhibit 4; provided, however, that the Construction GMP excludes implementation of the mitigation measures described in “MM BIO-1 Nesting Bird and Roosting Bats Survey” in the SWIP MND.
ARTICLE 20.0 OWNERSHIP OF CONTRACT DOCUMENTS
Design/Builder understands, acknowledges and agrees that City is the owner of all Drawings, Plans, Special Provisions and Technical Specifications, and other related documents furnished to City by the Design/Builder for the Project, and all related copyrights thereto. Design/Builder, including all Design Professionals, waives any and all common law or statutory copyrights thereto. City hereby grants Design/Builder a revocable license to use the Drawings, Plans, Special Provisions and Technical Specifications, and other related documents and electronic/digital source files furnished to City by the Design/Builder solely to diligently prosecute the Work in accordance with the Contract, including any amendments thereto. Each party hereto understands, acknowledges, and agrees that such license shall be deemed as revoked upon termination of the Contract. Submission or distribution of documents to meet official regulatory requirements or for other purposes in connection with the Project shall not be construed as unauthorized publication in derogation of the Design/Builder’s license.
ARTICLE 21.0 CHANGE ORDERS
City and Design/Builder each acknowledges, understand and agrees that because the Contract Price is based, in large part, upon Design/Builder’s self-perform work and Lump Sum pricing of Allocated Risks, Sections 2.1.2, 2.4, 2.5, and 4.6.1 of the Design/Build Agreement are no longer applicable, and null and void for purposes of the Construction Phase of the Contract. Therefore, City and Design/Builder agree that any future adjustments to the Contract Price or Contract Time shall be made in accordance with the following modifications to Sections 2.2.2, 7.0 – 8.0, and 10.0 of the DB Agreement and Article 7.2 of the General Conditions:
A. DB Agreement Modifications:
i. Section 2.2.2(iii) shall be deleted and replaced with the following:
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2.2.2(iii) 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. A maximum of one (1) five percent (5%) markup for subcontractor supervision of a lower tier shall be paid regardless of the number of tiers between Design/Builder and the lower-tier Subsubcontractor that performs the Work. ii. Sections 7.1.2 and 7.1.3 are deleted and replaced with the following:
7.1.1 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 (iii) 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. The rate specified for team members assigned fulltime 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.
7.1.2 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 is included in the Design/Builder mark-up for “Construction Indirect” specified in Section 10.0.
iii. Section 7.2 is maintained, but modified as follows:
7.2 Subcontractor, Design Professional Costs.
Except as otherwise provided in Sections 7.0 and 8.0, 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.
iv. Section 7.5.1 is deleted and replaced with “Not Used”. v. Sections 8.1.1 – 8.1.16 are deleted and replaced with the following (all other provisions to remain as originally drafted):
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8.1.1 All costs included in Design/Builder’s Fee, each of which shall be compensated only as set forth in Sections 10.0 (with respect to the Work) and Section 2.2.2 (with respect to Extra Work).
8.1.2 Except as provided in Sections 7.1.1, 7.1.2, and 10.0 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.
8.1.3 Except as provided in Section 10.0, 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.
8.1.4 Except as provided in Section 7.1.2 and 10.0, 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.
8.1.5 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 and Section
10.0), auditing, tax preparation, and insurance administration.
8.1.6 Except as provided in Section 7.4.5 and Section 10.0, 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.
8.1.7 Design/Builder's capital expenses, including interest on Design/Builder's capital employed for the Work.
8.1.8 All attorney's fees and expenses of litigation, except to the extent permitted under the terms of this Contract.
8.1.9 Except as clarified in paragraph 7.4.4 and Section 10.0, 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.
8.1.10 Rental costs of machinery and Equipment, except as specifically permitted under Section 7.4.2.
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8.1.11 Costs associated with the performance, testing, inspection, repair or replacement of Defective Work, or Losses resulting from therefrom, including without limitation any costs incurred in performance of any warranty or guarantee obligation.
8.1.2 Except as provided in Section 7.5.2 and Section 10.0, costs of business licenses and dues, assessments and contributions to technical or trade associations or for representation in collective bargaining
8.1.33 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.
8.1.4 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.
8.1.15 Costs that would cause the Contract Price, as adjusted for Change Orders executed by City, to be exceeded.
8.1.5 The cost for any item not specifically and expressly listed as a Cost of the Work in Section 7.0 or included in Design/Builder’s Fee as described in Section 10.0.
vi. Section 10.0 is deleted in its entirety and replaced with the following:
10.0 DESIGN/BUILDER FEE
The Design/Builder's Fee on Work performed during the Construction Phase includes the following cost, overhead, and profit items:
10.1 Administrative Design Services During Construction. This item includes administrative design services during the construction phase, including responses to Requests for Information (“RFIs”), shop drawing and submittal review, preparation of as-built drawings and preparation/review of Operations & Maintenance (“O&M”) Manuals. In addition, this item includes the wages, benefits, and subsistence for the following three (3) Design/Builder positions only: Project Manager, Construction Manager, and QA/QC Manager. This item does not include the following:
.1 The cost of performing substantive design services arising out of a change in the work; and
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.2 All Design/Builder staff and field labor not expressly identified in Section 10.1.
10.2 Bonds. This item includes Design/Builder’s bond costs for the performance and payment bonds required under this Agreement, including bond costs associated with changed Work or Extra Work.
.1 This item does not include subcontractor or supplier bond cost, which will be a part of any subcontracted scope packages.
10.3 Insurances. This item includes Design/Builder’s costs for providing the insurance coverages and limits required under this Agreement, including insurance costs associated with changed Work, or Extra Work. .1 This item does not include subcontractor or supplier insurance costs, which will be a part of any subcontracted scope packages.
10.4 General Conditions. This item includes the cost of Design/Builder’s office trailer. This item also includes Project site office supplies, utilities, communications (internet and telephone) and vehicles only for the three (3) Design/Builder positions expressly identified in Section 10.1. This item also includes Design/Builder’s allocable local office overhead. This item does not include the following:
.1 Site general conditions for additional Design/Builder positions located in the Project office (this cost has been included in Design/Builder’s Lump Sum price for self-perform work); and
.2 Vehicles for additional Design/Builder positions located in the Project office (this cost has been included in Design/Builder’s Lump Sum price for self-perform work).
10.5 General and Administrative Cost. This item includes Design/Builder’s corporate general and administrative costs allocable to the Project.
10.6 Fee. This item includes Design/Builder’s profit margin.
10.7 Summary. The percentage mark-ups that comprise Design/Builder's Fee as defined in Sections 10.1 through Section 10.7 are summarized in the Table below:
ITEM MARK-UP
Administrative Design
During Construction 7%
Bonds 0.75%
Insurances 0.75%
General Conditions 3%
General and Administrative Cost 4%
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Fee 4%
TOTAL FEE 19.5%
B. General Conditions Modifications:
i. Articles 7.2.3 – 7.2.6 are hereby deleted and replaced with the following:
7.2.3 Changes involving Extra Work that City elects to have performed on a time and material basis shall be performed, whether by Contractor's forces or the forces of Subcontractors or Sub-Subcontractors, based on actual Allowable Costs in performing the Change in the Work and with mark-ups in accordance with Section 7.3 of the Contract. Contractor shall submit on a daily basis to the City daily time and material tickets to include the identification number assigned to the Change; the location and description of the Change; the classification of labor employed (and names and social security numbers if requested); the materials used; the equipment rented (not tools); and such other evidence of cost as the City may require. The City may require authentication of all time and material tickets and invoices by persons designated by the City for such purpose. The failure of Contractor to secure any required authentication shall, if City elects to treat it as such, constitute a waiver by Contractor of any right to adjustment of the Contract Price for the cost of all or that portion of the Extra Work covered by a non-authenticated ticket or invoice. The adjustment to the Contract Price for the Extra Work will be based on the accumulation of Allowable Costs as provided in Article 7.2.5 below. It is Contractor's responsibility to review the Change Order Request invoicing of Contractor and Subcontractors and Sub-subcontractors for accuracy of Subcontractor Markups.
7.2.4 Adjustments to the Contract Price for Changes for which Contractor is entitled to an adjustment of the Contract Price by Change Order shall be computed at City's sole election on the basis of one or more of the following:
(i) Unit prices stated in the Contract Documents or agreed upon by City and Contractor.
(ii) A Lump Sum agreed upon by City and Contractor, based on the estimated Allowable Costs and Contractor Markup and
Subcontractor/Sub-Subcontractor Markup computed in accordance with the following:
(iii) Contractor’s Allowable Costs, plus Design-Builder’s Fee and Subcontractor/Sub-subcontractor Markups applicable to such Extra Work.
7.2.5 Allowable Costs shall mean only those costs listed in, and substantiated and documented in accordance with Articles 7.1 – 7.8 of the DB Agreement and that are not disallowed by Article 8.1 of the DB Agreement.
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7.2.6 The term "Design/Builder Fee" shall mean the “Total Fee” percentage amount summarized in Article 10.7 of the DB Agreement and more fully described in Articles 10.0 – 10.6 of the DB Agreement. The Design/Builder Fee shall comprise the full amount of Design/Builder compensation for all costs and expenses including overhead and profit not included in the Allowable Costs, whether or not referred to in Article 7.2.5. ii. Articles 7.2.4 – 7.2.11 shall remain as drafted, but shall be renumbered 7.2.7 – 7.2.14.
ARTICLE 22.0 AUDITING
22.1 Audit Rights for Change Order Proposals and Claims. Design/Builder agrees for itself and its Subcontractors and Design Professionals that City’s designated representatives will have the right to examine Design/Builder’s, and its Subcontractors’ and Design Professionals’ records to verify accuracy and appropriateness of the pricing data used to price all change order proposals, and/or claims. Design/Builder agrees that if City determines the cost and pricing data (whether approved or not) was inaccurate, incomplete, not current, or not in compliance with the terms of the Contract regarding pricing, an appropriate contract price adjustment will apply to all Change Orders.
22.2 Audit Rights for Lump Sum Portions of Construction GMP. The parties agree and acknowledge that for Design/Builder Lump Sum pricing, the scope of any City audits shall consist exclusively of verifying payment of the applicable Lump Sum amount for Work properly performed. To the extend any Lump Sum work package is altered via Change Order to include time and materials or force account work, the amounts paid for such time and materials or force account work shall be subject to the City’s audit rights set forth in Section 22.1 of this GMP Amendment.
22.3 Audit Costs. City shall bear all audit costs except where the audit results indicate cost discrepancies in Design/Builder’s change order proposal(s), claim(s), or verification of work properly performed, in which event Design/Builder shall bear all audit costs.
ARTICLE 23.0 PREVAILING WAGE (DAVIS/BACON)
Design/Builder shall comply with all prevailing wage requirements in Exhibit 11.
ARTICLE 24.0 EXHIBITS
The attached Exhibits are a part of this GMP Amendment as if each were fully incorporated therein.
Exhibit 1 – Key Personnel
Exhibit 2 – Contract Price & Construction GMP Summary, Schedule of Values, GMP Revisions Summary, Initial GMP, Time-Related Overhead Rate, Exhibit 3 – Construction Schedule
Exhibit 4 – Express Project Criteria
Exhibit 5 – Permit List
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Exhibit 6 – Testing and Guaranteed Plant Performance Parameters Exhibit 7 – City Event List
Exhibit 8 – Laydown Area at the Colorado Yards
Exhibit 9 – Construction QA/QC Plan Requirements
Exhibit 10 – Work Restriction (CIMP) and Traffic Control Exhibit 11 – Davis-Bacon Requirements and Wage Determination Exhibit 12 – Subcontractor List & Self-performed Work List ARTICLE 25.0 NO MODIFICATION
Except as expressly modified by this GMP Amendment, all other terms and conditions of the Design/Build Agreement shall be and remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this GMP Amendment as of the date and year first written above.
ATTEST:
______________________________
DENISE ANDERSON-WARREN
City Clerk
APPROVED AS TO FORM:
______________________________
LANE DILG
City Attorney
CITY OF SANTA MONICA,
a municipal corporation
By:______________________________
RICK COLE
City Manager
ABC Corporation
#VENDOR
By:_______________________________
DocuSign Envelope ID: 3EDC484A-E4AC-4B42-B5D6-9980FAEE07C6 12/23/2019
City Attorney
Lane Dilg
1/8/2020
Tony Joyce
Kiewit Infrastructure West Co
Vice President
City Manager
1/15/2020
Rick Cole
City Clerk
Denise Anderson-Warren
1/15/2020