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HomeMy WebLinkAbout1984-05-15; City Council; Resolution 7605RESOLUTION NO. 7605 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA APPROVING A CONSTRUCTION MANAGEMENT AGREEMENT BETWEEN THE CITY OF CARLSBAD AND KOLL COMPANY FOR SERVICES PERFORMED FOR CONSTRUCTION OF THE PUBLIC SAFETY CENTER, AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT. WHEREAS, the City of Carlsbad and Koll Company have reached an agreement regarding the provision of construction management services for construction of the Public Safety Center, a copy marked Exhibit A, attached hereto and made a part hereof, AND NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad as follows: 1. That certain agreement between the City of Carlsbad and Koll Company regarding the provision of construction management services for construction of the Public Safety Center is hereby approved . 2. That the Mayor of the City of Carlsbad is hereby authorized and directed to execute said agreement for and on behalf of the City of Carlsbad. PASSED, APPROVED AND ADOPTED at a regular meeting of th City Council of the City of Carlsbad, California, held on the 15th day of MY , 1984, by the following vote to wit: AYES : Council Wrs Casler, Lewis , Chick and Prescott ATTEST : /7 . '. THE AMERICAN INSTITUTE OF ARCHITECTS ~ ~~~ AIA Document 8801 Standard Form of Agreement Between Owner and Construction Manager 19m EDITION THfS DOCUMEM HAS iMPORTAM LEGAL CONSEQUENCES; CONSULlATlON WITH AN ATTORNEY IS ENCOURAGED. This document is intended to be used in conjunction with AIA Documents AlOlICM, 1980; B141/CM, 1980; and AZOlICM, 1980. AGREEMENT made as of the 15th day of May Hundred and eighty four. W in the year of Nineteen BETWEEN the Owner: The City of Carlsbad, a California Municipal Corporation and the Construction Manager: Koll Construction Company For the following Project: City of Carlsbad Public Safety and Service Center as described in the master plan - site development report prepared by H. Wendell Mounce A.E.A. and Associates on file with the City and incorporated by reference herein (Indude dctatkd drscription ol Propct location ad scm the Architect: Ruhnau, McGavin, Ruhnau Associates The Owner and the Construction Manager agree as set forth below. Cop~rtght 1973, (b 1980. by The American Institute of Architects, 1735 New York Avenue, N.W.. Washington, DC. 20006. Reproduciion of the material herein or substantial quotation ot its ~)rovircons without written permission of the AIA VlOlJtCs the EOpvriRht laws ot the United Slates and will be subject to legal prosecution. ~~ ~~~~ ~~~ DOCUMENT Un OWNER-COhSTRUCTION MANAGER AGREEMENT IUNE 1980 EDITION AIA* THE AMERICAN INSTITUTE OF ARCHIIECTS. 1735 NEW YORK AVE., N.\V., WASHINGTON, D.C. 1ooo6 8801-1980 1 I TERMS AND CONDITIONS OF AGREEMENT BETWEEN I OWNER AND CONSTRUCTION MANAGER J AlllQEl CONSTRUCnON MANAGER'S SERVICE5 AND REWONSI8IUTleS fh. Construction Manager covenants with the Owner to further the interests of the Owner by furnishing the Con- struction Manager's skill and judgment in cooperation with, and in reliance upon, the services of an architect. The Construction Manager agrees to furnish business d- ministration and management services and to perform in an expeditious and economical manner consistent with the interests of the Owner. Bwc SmvUEs The Construction Manager's Basic Services consist of the two Phases described below and any other ser- vices included in Article 16 as &sic Services. 1.1 ?RKONJTIUmCL)(AX 1.1.1 Provide preliminary waluation of the program and Project budget requirements, each in terms of the other. With the Architect's assistance, prepare pdiminay estimates of Construction Cost for early schematic designs b8Kd on area, volume or other standards. kist the Owner and the Architect in achieving mutually agrd upon program and Project budget requirements and other design parameters. Provide cost evaluations of altemative materials and systems. 1.13 Review designs during their development. Advise on site use and improvements, selection of materials, building systems and equipment and methods of Project delivery. Provide recommendations on dative feasibility of construction methods, availability of materials and la- bor, time requirements for procurement, installation and construction, and factors related to cost including, but not limited to, costs of alternative designs or materials, pe liminay budgets and possible economies. 1.13 Provide for the Architect's and the Ownefs review and acceptance, and periodically update, a Project Shed- ule that coordinates and integrates thc Construction hkn- agets services, the Architect's services and the Owncfr responsibilities with anticipated construction schedules. 1.1.4 Prepare for the Ownets approval a more detailed estimate of Construction Cost, as ddid in Artide 3, dr- vefoped by using estimating techniques which antiapatt the various elements of the Project, and bad on khc- matic OcSign Docurtwnlt prepared by the Archired. Up- date and refine this estimate periodiully as the Architect prepares Design Oedopmat and Construction Docu- ments. Advise the Owner and the Architect if it appears that the Construction Cost may exceed the Project budget Make recommendations for corrective action. 1.15 Coordinate Contract Documents by consulting with the Owner and the Architect re#arding Drawings and Spe- cifications as they an king prepared, and recommding altematiw solutions whtnever design details affect con- st~ction feasibility, cost or ~hedular. 1.13.1 Provide recommendations and information to the Owner and the Architect regarding the assignment of re- sponsibrlitia for safety precautions and programs; temp ray Project facilities; and equipment, materials and Hr- vices for common use of Contracton. Verify that the re- qulrements and assignment of responsibilities are included in the proposed Contract Documents. 1.13.2 Advise on the separation of the Project into Con- tracts for various categones of Work. Advise on the method to be used for selecting Contractom and awarding Con- tracts. if separate Contracts are to be awarded, review the Drawings and Specifications and make recommendations as requwed to provide that (1) the Wok of the separate Contractors is coordinated, (2) all requirements for the Project have been assigned to the appropriate separate Contract, (3) the likelihood of jurisdictional disputes has been minimized, and (4) proper coordination has been provided for phased construction. 1.1- Develop a Project Construction khadule provid- ing for all major elements such as phuina of coclsu~ction ad times of commencement and completion required d each separate Contractor. Provide the Project coc\ruuc- tion Schedule for each set of Bidding Documents. 1.13.4 Investigate and mommend il Khcdule for th. Owner's purchase of materials and equipment requiring long lead time procurement, and coordinate the schedule with the early preparation of portions of the Con.hact Documents by the Architect. tqndite and coordinate de- livery of these purchases. 1.1.6 Provide an arulysk of the type and quantities of labor required for the Pmj- and mim tbe availability of appropriate categories of labor mquired for critical Phases. Make recommendations for actions drrigntd 10 minimize adverse effects of labor shortages. 1.1.6.1 Identify or verify applicable requirements for equal employment opportunity programs for inclusion in the proposed Contract Documents. 1.1.7 Make recommendations for prequalifiation qi- teria for Bidders and develop Bidden' interest in the Pro- ject. Gtablish bidding Khedules. Assist the Architect in nsurng Bidding Documents to Bidden. Conduct pebid conferences to famiiiarire Bidders with the Bidding Docu- ments and management techniques and with any sptu-ai systems, materials or methods. Assist the Architect with the receipt of questions from Bidders, and with the issu- ance of Addenda. 1.1.7.1 With the Architect's assistance, receive Bids, pre- pare bid analyses and make recommendations to the Owner for award of Contracts or rejection of Bids. 1.1.8 With the Architect's assistance, conduct prc-award conferences with successful Bidders. Assist the Owner in preparing Construction Contracts and advise the Owner OII the acceptability of Subcontractors and material sup. pliers proposed by Contractors. 13 CON~U~~ The Construction Phase will commence with the award of the initial Construction Contract or pur- chase order and, together with the Construction Manager's obliytiocr to provide Buic Services un- 1s prov3de administrative, Nnagement and ad swiw as muired to coordinate Wok of h Contacton ea& 0t)Kr and with thc activities and mponsibilith of t& Construction Manager, the Owner and the Arthi- twt to complete the Project in accordance with-the Own- efs objcctivtr for cost, time and qualitv. Provide suficicnt orpnttation, personnel and management to carry out the requirements of this Agreement. 1221 Schedule and conduct pre-const~ctron. construc- tion and progress meelinis to discuss such matters as pro- cedum, pfogms, problems and scheduling. Prepare and promptly distribute minutes. 1.233 Consistent with the Project Construction khcd- ule isd with the Bidding Documents, and utilizing the Contacton' Construction khcdules provided by the sepa- rate Contracton, update the Project Construction Sched- ule incorporating the activities of Contractors on tk Project, induding activity sequences and durations, atlo- cation of labor and materials, processing of Shop Dnw- Inp, Product Data and Samples, and delivery of products requiring long lead time procurement. Include the Own- er's occupancy requirements showing portions of thc Project having occupancy priority. Update and reissue the Project Construction Schedule as requid to show cumnt conditions and revisions rcquid by actual experience. 1.2.2.3 Endeavor to achieve satisfactory perfomance from each d thc Contractors. Rtcmmend courses of action to the Owmr when requirements of a Contract are not king fulfilled, and the mperforming party will not take satisfactory comctive action. 12.3 Revise and refine the approved estimate of Con- rtruetiorr Cost, incorporate approved changes as they oc- cur, and develop cash flow repons and fortcasts as needed. 1.2.3.1 Prwide regular monitorin8 of the approved esti- mate of Construction Cost, showing actual costs for activi- ties in progress and estimates for uncompleted tasks. Iden- tify variances between actual and budgeted or estimated costs, and advise the Owner and the kchitect whenever projected costs exceed budgets or estimates. 13.3.2 Maintain cost accounting ricorch on authorized Work ptrf~rmcd under unit costs, additional Work per- formed on t!~ buis of rctwl mts of labor and matenair, or other Work muiring accounting records. 1333 Recommend necessary or desirable changes to the Architect and thc Owner, micw requests for changes, assist in negotiating Contractors' proposals, submit recorn- mendations to the Architect and the Owner, and if they are accepted, prepare and sign Change Orders for the Architect's signature and the Owner's ruthoriution. 1.2.3.4 Mop and implement procedures for the re- vim ad procc~ung of Applications by Contracton for pm@ts and final payments. Make recommendations to tlw Architect (or certification to th, c)wrm for payment. . 1.2.4 Rcview the nGw programs develw of the Contractors as required by their Contract bums and coordin8te the Safety programs for tk Pmjcct. 135 Assist in obtaining building permits and wja1 pennits for pw"nent improvements. excluding permits required to be obtained directly by the various Contnc- ton. Verify that the Owner has paid applicable fees and assessments. Assist in obtaining approvals from authorities having jurisdiction mer the Project. 1.2.6 If requid. assist the Owner in setecting and n- taining the professional services of survyon, special con- sultants ad testing laboratories. Coordinate their services. 1.2.7 Determine in general that the Work of each Con- tractor is being performed in accordance with the qui* ments of the Contract Documents. Endeavor to guard the Owner apinst defects and deficiencies in the Work. & appropriate, requite special inspection or testing, or make recommendations to the Architect regarding special in- spection or testing, of Work not in accordance with the provisions of the Contract Documents whether or not such Work be then fabricated, installed or completed. Subject to review by dw Architect, mjut Wok which does not conform to the requinments of the attact Documents. 1.2.7.3 fhe Construction Manager sttall not be mponsi- bk for construction means, methods, techniques, ae- quences and procedures emptoyd by Contractors in the performance of their Contracts, ad shall not be WWOII@- ble for the failure of my Contractor to any Out in accordance with the Contract Documents. 12.8 Consult with the Architect and the Owrm if Uy Contractor requests interpretations of ttw munin~ and intent of the Drawings ad Specifications, and udst in the molution of questions which my arise. 12.9 Receive Certifates of insurance frwn t)n Con- tractors, and toward them to the Owner with a COPY to tht Aichitcct 12.10 Receive from the Contracton and review all Shop Drawings, Product Data, Samples and other submittals. Coordinate them with information mtained in dated, documents ad tnmmit to the Architect those feeom- mended for approval. In collaboration with the Architect, establish and implement procedures for expediting th.'. processing and approval of Shop Drawings, Product Data, Samples and other submittals. 1.2.11 Record the progress of the Project. Submit written progress reports to the Owner and the Architect induding information on each Contractor and each Contractor% Work, as dl u the entire Project, showing plt"ta6Cr of completion and the numkf and amounts of Ounge Orden. Keep a daily log containing a record of weather, Contractors' Work on the site, number of workers, Work accomplishtd, problems encountered, and other similar relevant data as the Omnr may requirt. Make the bg available to the OwMr and the Architect. 1111.1 Wintain at the Project site, on a current basis: a mod copy of all Contracts, Drawinp, Sgccifiotions, Mdenda, Change Orders and other Modifications, in god order and mariced to record a11 chnses made during con- stiuctaon; Shop Drawings; Product Data; Sample; sub mituk; purchases; materials; equipment; applicable hand- bods; maintmnce and operating manruls ad instruc- 3 8m-m 3 'i tions; other elated documents and revisions which arise' of the Contracts or Work. Maintain records, in dupli- Ute, of principal building layout lines, elevations Of the bottom of footing, floor kvdS and key site elevations cenifid by a quaiifid $uvr 01 PtafeSSiOnll engin-r. Make records avaitable to the Owner and the Archi- tect. At the completion of the Project, deliver all such records to the Architect for the Owner. 1.2.12 Arrange for delivery and storage, protection and wurity for Owner-purchad materials, systems and equipment which are a part of the Project, until such items are incorporated into the Project. 1.2.13 With the Architect and the Owner's maintenance personnel, observe the Contractors' checkout of'utilities, operational systems and equipmnt for readiness and as- stst in their initial start-up and testing. 1.2.14 When the Construction Manager considers each Contractor's Work or a designated portion thereof sub- stantially complete, the Construction Manager shall pn- pare for the Architect a list of incomplete or unsatisfactory items and a schedule for their completion. The Construc- tion Manager shall assist the Architect in conducting in- spections. After the Architect certifies the Date of Substan- tial Completion of the Work, the Construction Manager shall coordinate the correction ad completion of the Work. 1.2.15' Assist the Architect in determining when the Proj- ect or a designated portion thereof is substantially com- plete. Prepare for the Architect a summary of the status of the Work of each Contractor, listing changes in the previ- ously issued Certificates of Substantial Completion of the Work and recommending the times within which Contrac- tors shall complete uncompleted items on their Certificate of Substantial Completion of the Work. 1.2.16 Following the Architect's issuance of a Certificate of Substantial Completion of the Project or designated portion thereof, evaluate the completion of the Work of the Contractors and make recommendations to the Archi- tect when Work is ready for final inspection. Assist the Architect in conducting final inspections. Secure and trans- mit to the Owner required guarantees; affidavits, releases, bonds and waivers. Deliver all keys, manuals, record drawings and maintenance stocks to the Owner. 1.2.17 The extent oi the duties, responsibilities and limi- tations of authority of the Construction Manager as a rep- resentative of the Owner during construction shall not be modified or extended without the written consent of the Owner, the Contractors, the Architect and the Construc- ion Manager, which consent shall not be unreasonably withheld. 1.3 ADDITIONAL SERVICES The following Additional -Services shall be per- formed upon authorization in writing from the Owner and shall be paid for as provided in this Agreement. 1.3.1 Services related to investigations, appraisals or eval- uations of existing conditions. facilities or equipment, or verification of the accuracy of existing drawings or other information furnished by the Owner. 13.2 Services related to Owner-furnished furniture. fur- nishings and equipment which are not a part of the Project. 1.3.3 Services for tenant or mtal spree. 1.3.4 Consultation on replacement of Wo& &magd fire or other cause during construction, and funishing services rn conjunction with the replacement of such work. 1.35 Services madt necessary by the default of a Con- tractor. 1.3.6 Preparing to serve or serving as a witness in con- nection with any arbitration proceeding or lepl proceeding. 13.7 Recruiting or training maintenance personnel. 1.3.9 in this Agreement. 1.4 TWE 1.4.1 The Construction Manager shall perform Basic and Additional Services as expeditiously as is consistent with reasonable skill and care and the orderly progress of the Project. ARTICLE 2 THE OWNERS RESPONSIBILITIES Providing any other servicer'not otherwiK included 2.1 The Owner shall provide information nerding the requirements of the Project, including a program, which shall set forth the Owner's objectives, constraints and criteria, including space requirements and relation- ships, flexibility and expandability requirements, special equipment and systems and site requirements. 2.2 The Owner shall provide a budget for the Project, based on consultation with the Construction Manager and the Architect, which shall include contingencies for bid- ding, changes during construction and other costs which are the iesponsibility of the Owner. 2.3 The Owner shall designate a representative author- ized to act in the Owner's behalf with respect to the Project. The Owner, or such authorized representative, shall examine documents submitted by the Construction Manager and shall render decisions pertaining thereto promptly to avoid unreasonable delay in the progress of . the Construction Manager's services. 2.4 The Owner shall retain an architect whose services, duties and responsibilities are de- scribed in the agreement between the Cwner and the Architect, AIA Document 8141/CM, 1980 Edition, as modified. The Terms and Conditions Of the Owner-Architect Agreement wi1.l be furnished to the Construction Manager, and will not be modified without written consent of the Construction Manager, which consent shall not be unreasonably withheld. Actions taken by the Architect as agent of the Owner shall be the acts of the Cwner and the Construction Manager shall not be responsible for them. 2.5 The Owner shall furnish structural, mechanical, chemical and other laboratory tests. inspections and rc- ports as required by law or the Contract Documents. 2.6 The Owner shall furnish such Iegai, accounting and insurance counseiing services as may be necessary for the Proiect, including such auditing services as the Owner may require to verify the Project Applications for Payment . B801-19aO 4 'I or to ascertain how 0: Contractors have used the nunzes for what behalf of the Owner. 2.7 The mr aha11 furnish the Construction Wnagsr a sufficient quantity of construction documant s 2-11 The services, information and reports- required by Paragraphs 2.1 through 2.7, inclusive, shall be furnished at the Owner’s expense. and the Construction Manager shall entitled to rely upon their accuracy and completeness. 2.9 tf the Owner observes or otherwise becomes aware of any fault or defect in the Project, or nonconformance with the Contract Documents, prompt written notice thereof shall be given by the Owner to the Construction Manager and the Architect. 2.10 The Owner reserves the right to perform’work re- lated to the Project with the Owner’s own forces, and to award contracts in connection with the Project which are not part of the Construction Manager’s responsibilities un- der this Agreement. The Construction Manager shall notify the Owner if any such independent action will in any way compromise the Construction Manager’s ability to meet the Construction Manager’s responsibilities under this Agreement. 2.11 The Owner shall furnish the required information and services and shall render approvals and decisions as expeditiously as necessary for the orderly progress of the Construction Manager‘s services and the Work of the Con- tractois. ARTJCLE 3 CONSTRUCTION COST 3.1 Construction Cost shall be the total of the final Con- tract Sums of all of the separate Contracts, actual Reim- bursable Costs relating to the Construction Phase as de- fined in Article 6, and the Construction Manager‘s com- pensation. 3.2 Construction Cost does not include the cost of the land or riahts- of-way.. 3.3 Evaluations of the Owner’s Project budget and cost estimates prepared bv the Construction Manager represent the Construction Manager’s best judgment as a profes- sional familiar with the construction industry. It is recog- nized, however, that neither the Construction Manager nor the Owner has control over the cost of labor, mate- rials or equipment, over Contracton’ methods of de- termining Bid prices or other competitive bidding or ne- gotiating conditions. Accordingly, the-Construction Man- ager cannot and does not warrant or represent that Bids will not vary from the Project budget proposed, established or approved by the Owner, or from any cost estimate or evaluation prepared by the Construc- tion Manager, 3.4 No fixed limit of Construction Cost shill be estab- lished JS a condition or this Agreement by the furnishing, proposal or establishment of rl Project budget under Sub- paragraph 1.1.1 or Paragraph 2.2. or otherwise, - mtructim Managx shall incl- in the project M-t mnwes for design, bidding ad prim e-cral.atim shall consult with the Architect to determine what materialt, equipment, component systems and types of construction are to be included in the Contract DOCUlMntS, to suggest reatonable adjustments in the scope of the Project, and to suggest alternate Bids in the Construction Documents to adjust the Construction Costs to the project budqet. 3.4.2 If the project bud-t of the lowest figures from bona fide Bids plus the Construction Manager‘s estimate of other elements of Construction Cost for the Project, the Owner zbll ‘1) give written approval of an increase in such mt , (2) authorize rebidding or renegotiation of the Project or portions of the Project within a reason- able time, 13) if the Project is abandoned, terminate this agreemnt or (4) cooperate in revis- ing the scope and quality oi the Work as required to I+ duce the Construction Cost. In the case of item (41, the Construction hbnager, without additional compensation, shall cooperate.with the Architect as necessary to bring the Construction Cost within the IS exceeded by’ the sum ‘ budget- ARTICLE 4 CONSTRUCTION SUPPORT ACTlVlTlES 4.1 Construction support activities, if provided by the Construction Manager, shall be govemed by separate contractual arrangements unless otherwise provided in Article 16. 5 -1-1960 e 4.2 Trade discounts. rebates and refunds, and returns from of WIP~US materials and equipment shall accrue 10 tk Owner, and the Constructton Manager shall make provisions SO tbt tb k secund.- AlllcLf7 PAYMENTS TO THE CONSTRUCTION MANAGER 7.1 ?AYMTs ON ACCOC)WI 0) BASK SERVIQI ARTICLE 8 CONS1RUCTlO.N MANAGER'S ACCOUNTING RECORDS 8.1 Records of Reimbursable Costs and costs pertat tng 7*1*3 If and to that 'Ime 10 sewices performed on the basis of a Multiple of Direct accepted accounting principles and shall be avirlable to ceded or extended through no fault of the Construction Manager. compensation for Basic Set~ce5 rcqulrd for Owner Or at such extended period of Administration of the Construc- tim cbntract shall be wtably adjusted. lished for the Construction Of the Pro)ect Is "- Personnel Expcnw shall be kept on the basis of generally conwnlCnt t,mes. 7.2 ?AYMENTS ON ACCOUNT OF ADOITJONAT SERVlCEf AND UIMBURSA8U COSTS 7.2.1 Payments on account of the Construction Man- ager's Additional Services, as defined in Paragraph 1.3, shall be made monthly upon presentation of the Construction hbnagcr's statement of SCNIC~S rendered or costs in- curred. 7.3 ?AYMENTS WITHHELD 73.1 No deductions shall k made from the Construc- tion Manager's compensation on account of penalty, lq- uidated damages or other sums withheld from payments to Contractors, or on account of the cost of changes on Work other than those for which the Construction Man- ager is beld legally liable. 7.4 ?KO}= SW?EN)K)N OU ABANDONMENT 7.4.1 If the Project is suspended' or abandoned in whoie or in part for more than three months, the Construction Manager shall be compensated for all ww~ces performed prior to receipt of written notice from tbcOwncr of such suspensron or abandonment. in acpordance With Artidle 16 :f ihe Project is resumed after being suspended for more than thr& months. the Constructton Wrucer's comoenution shall be equitably adjusted. SUCCESSORS AND-ASSIGNS 12.1 The Owner and tk Construction hnrger, mpec- tively, bind themselves, thwr ~rtners, succwsors. assigns and ley1 repmentattves to the other party to this Agree- mnt, and to the partners, s~~cessors, asshgns and ley1 representatives of such other party with respect to all covenants of this Agreement. Neither the Owner nor the Construction Manager shall assign, sublet or transfer any interest in this Agreement without the written consent of the other. ARTICLE 11 MISCELUNEOUS PROVISIONS 11.1 Unless othenvise specified, this Agreement shall be governed by the law in eifect at the loution of the Proiut. 113 As between the parties to this Agreement: as to all acts 01 failures to act by either party to this Ag"ent, any appltcable statute of limitations shall commence to mn, and any alleged cause of action shall be deemed to have accrued, in any and all events not later than the relevant Date of Substantial Completion of the Project, and as to any acts or failures to act occurring after the relevant Date of Substantial Completion of the Project, not later than the date of issuance of the final Project Certificate for Payment. 11.4 The Owner and the Construction kbnal)tt waive all rights against each other, and against the contractors, consultants, agents and employees of the other, for dam- ales covered by any property insurance during construc- mn, as Kt forth in the 1980 Edition of AIA Document A2011Ch4, General Conditions of the Contract for Con- struction, Construction Management Edition. The Owner and the Construction Manager shall each require appro- pnate stmitar waivers from their contractors, consultants and agents. ARTICLE 13 EXTENT OF AGREEMENT 13.1 This Agreement represents the emre and rntegrited agreement between the Owner and the Construction Manager and supersedes a11 prior negotiations, represen- tations or agreements, either wntten or onl. This Agree- ment may be amended only by wntten instrument signed by both the OwMr and the Construction MMgtf. 13.2 Nothing contained herein shall be daemd to em- ate any contractual relationship between the Construction Manager and the Architect or my of the Contractors. Sub- contractors or matenat suppltert on the Pmjm; nor dull anything contamed in this Agre"t be deemed to lire any third party any claim or right of action against the Owner or the Construction Manrger which docs nOt othenvtse exist without regard to this Agmment. ARTICLE 15 Basis of Compensation The Owner shall compensate the Construction Manager for the scope of Services provided, in accordance with Article 7, payments to the Construction Manager, and the other Terms and Conditions of this Agreement, as follows: 'The project covered within this contract is defined by the Final Site Development Plan for the City of Carlsbad Public Safety Service Center prepared by H. Wendell Mounce A.I.A. Associates on July 12, 1983 and covering basic site development, police headquarters/f ire administration building and the vehicle * maintenance and fuel station. The total fee for this scope of services will be an amount not to exceed five hundred thousand dollars ($500,000). The fee will cover the cost of the Construction Manager's office overhead, profit and personnel for the preconstruction and construction phases, excluding any extraordinary delays not the result of any fault of the Construction Manager. upon selection of the architect and within one month of the architectural agreement being signed by the City, the Construction Manager, the Project Administrator and Architect will agree to a schedule to complete the preconstruction and construction work required to produce the above described work. 15.1 Basic Compensation 15.1.1 For basic services, as described in paragraphs 1.1 and 1.2, and any other services included in Article 16 as part of Basic Services, Basic Compensation shall be computed as follows : For preconstruction phase services the total compensation within the schedule agreed to above, and subject Article 15.3.2, shall be one hundred twenty thousand dollars ($120,000) . The preconstruction phase shall be divided into four subphases and these subphases shall be titled and valued the following way: schematic design ($30,000), design development ($30,000), construction documents ($40,000) and to in bidding ($20,000) .. On a monthly basis, the Construction Manager and Project Administrator shall determine the percentage of completion on each of the subphases, and the Construction Manager shall submit a bill for that amount to be paid on a monthly basis. For construction phase services, the total compensation within the schedule agreed to above and subject to Article 15.3.2, shall be three hundred eighty thousand dollars ($380,000). The Construction Manager shall be paid monthly for construction phase services on the basis of, and in proportion to, the percent of total completion of construction as determined and approved by the Project Administrator. In making such progress payments, there shall be no retainages held on the Construction Manager's fee. 15.3 Compensation for Additional Services 15.3.1 For additional services of the Construction Manager, as described in paragraph 1.3, and delays in the project as described in Article 15.3.2, and any other services included in Article 16 Additional Services, compensation shall be computed and paid to the Construction Manager in an amount equal to the Construction Manager's additional direct personnel expense on the Project. 15.3.2 In the event of the following delays in the completion of the project, which are not the result of any fault of the Construction Manager, Article 15.3.1 shall apply provided ' such delays cannot be accommodated by adjustments within the agreed schedule and the Construction Manager can document that such delays have materially increased his costs. .2.1 In the event and to the extent that the approvals of the bid documents are not given by the Owner and result in a delay in completion of the Project. .2.2 In the event of and to the extent that any changes in the Project requested by Owner result in the delay of the completion of the Project. .2.3 In the event and to the extent that the project completion is delayed by the architect's failure to perform his services in accordance with the agreed schedule 15.3.3 Direct personnel expenses are defined as the actual salary expense, including all overhead, payroll taxes, fringe benefits and other employee benefits of Construction Manager's personnel to be defined as 30% burden on direct salaries. People to be included in direct personnel expense shall be as mutually agreed upon by Construction Manager and Owner . 15.3.4 Any claim by Construction Manager for additional compensation shall be submitted in writing to the Project Administrator within thirty (30) days of the occurrence of the event upon which cOmpensation is claimed, setting forth in detail the complete basis for the claim. No claim shall be valid unless so made. The Project Administrator shall review the claim and if he finds the claim valid in its entirety or in part, he shall process it in accordance with Owner's procedures. Rejection of any claim shall not be grounds for termination of this agreement. 15.4 If the scope of the Project or the Construction Manager's services is changed materially, the amount of compensation shall be equitably adjusted. It is hereto agreed that Owner change orders will not be assessed a Construction Manager fee on the work applicable to site development, police headquarters/f ire administration building and the vehicle 2. maintenance and fuel facility excluding time extensions as previously described. been completed within thirty Six (36) months of the date hereof, through no fault of the Construction Manager, the amount of compensation, rates and multiple set forth herein shall be equitably adjusted. 15.5 If the services covered by this agreement have not ARTICLE 16 Other Conditions or Services 16.1 The Owner shall be responsible for all construction costs incurred in the Project . The Construction Manager will supply all miscellaneous office supplies, xeroxing and personnel (including secretaries ) necessary to execute the services described in this contract. If the Owner so chooses the Construction Manager will provide the Owner with monthly computer scheduling and management reports for actual costs. 16.2 The following applies to Article 1. 16.2.1 At the request of Owner the Construction Manager shall be represented by appropriate staff at all designated conferences including meetings of the City Council and other public meetings held for receiving status reports and other information as requested by Owner. 16.2.2 Construction Manager in reviewing bids shall prepare a cost comparison analysis and establish the lowest responsible bidder to be accepted by Owner. In assisting Owner with construction contracts the Construction Manager shall prepare drafts of their specific terms. administer the processing of change orders, including applications for extensions of time from the contractors in accordance with Owner's procedures. Evaluate the cost features of all change orders and, where necessary, negotiate with the contractors to obtain a fair price and time for the work. Owner's maintenance personnel, coordinate the checkout of utilities, operational systems and equipment; assist in the training and transfer of operating responsibilities to Owner and assist Owner with the development of any occupancy program. made or any action brought in any way relating to the construction of the Project, render all assistance which Owner may require during the course of the Project, including preparation of written reports with supporting information necessary to resolve the disputes . equipment, systems, and labor warranty program and expedite and supervise any corrective work required during the warranty period . 16.2.7 Add paragraph 1.2.20: Ensure that contractor, within fifteen (15) days after date of Certificate of Substantial 16.2.3 Add to paragraph 1.2.3.3: Document and 16.2.4 Add to paragraph 1.2.13: In cooperation with 16.2.5 Add paragraph 1.2.18: In the event any claim is 16.2.6 Add paragraph 1.2.19: Administer the materials, 3. Completion, provides to architect a marked set of contract documents showing all final construction as-built conditions such that architect can prepare a Complete set of reproducible final as-bui 1 t plans . 16.3 The following-applies to Article 2. The Project budget is established in the amount of $9,376,000 including site work, police/f ire/administration building and the vehicle maintenance facility as described in phases 1, 1A and 1B of the final site plan. The budget shall include architect's fee, landscaping, communication system, furnishings, construction management fee and a contingency. Owner contemplates that the project will be completed within the project budget. The project budget shall not be adjusted for the purposes of this agreement without prior authorization of the Owner. Construction Manager will use his best efforts to see that no such adjustment are necessary. 16.4 The following paragraph is added to Article 11 - Miscellaneous Provisions. 11.5 Should any action be brought relating to this agreement, the prevailing party shall be entitled to reasonable attorneys fees and costs, 16.5 Arbitration and Attorneys Fees 16.5.1 Upon mutual agreement of the parties, all questions in dispute under this agreement may be submitted to arbitration. Such arbitration shall be conducted in accordance with the rules of the American Arbitration Association insofar as the same are not in conflict with the laws of the State of California. 16.5.2 If either party petitions to confirm, correct or vacate the award as provided by Chapter 4 or Title 9 of the Code of Civil Procedures (commencing with Section 1285), the prevailing party shall be entitled as part of its costs, to a reasonable attorney's fee to be fixed by the court. or interpret this agreement, the prevailing party' shall be entitled to reasonable attorney's fees and costs. ) 16.5.3 Should any legal action be brought to enforce 16.6 Indemnification, 16 . 6.1 Canstruction Manager has the expertise necessary to perform the services and duties agreed to be performed by a construction manager under this agreement, and Owner, not being skilled in such matters, relies upon the skill and knowledge of Construction Manager to perform said services and duties consistent with skills prevalent in the industry, Therefor, Construction Manager agrees to indemnify, hold harmless and defend Owner, City Council and each member thereof, and every officer and employee of Owner, from any and all liability or financial loss, including but not limited to, liability or loss which injury, damage or disruption or loss results from any suits, claims, losses or actions brought by any person or persons and from all costs and expenses of litigation brought against Owner, City Council and each member thereof, or any officer or employee of Owner, by reason of 4. injury to any person a or persons, including bu 9 not limited to, officers and employees of Construction Manager or damage, destruction, or loss of property of any kind whatsoever and to whomsoever it may belong, including but not limited to that of Construction Manager resulting from any or all negligent activities or negligent operations of Construction Manager or any person employed by Construction Manager in the performance of this agreement. The Construction Manager -shall not be liable for the negligent acts of any trade contractors or suppliers. 16.7 Insurance . 16.7.1 Construction Manager shall at all times during the term of this agreement carry, maintain, and keep in full force and effect, in a form and with an insurance company . acceptable to, and approved by, the City Attorney, policies of motor vehicle liability insurance with minimum limits of $100,000/$300,000 personal injury and $50,000 property damage and Comprehensive General Liability Insurance, with minimum limits of $500,000 combined single limit in aggregate, against any injury, death, loss or damage as a result of negligent acts or omissions by the Construction Manager, together with an endorsement in substantially the form set forth below. ENDORSEMENT It is hereby understood and agreed that owner, its City Council and each member thereof and every officer and employee of Owner shall be named as additional named insureds with severability of interests assured as respects claims arising out of the construction management services in connection with development of the project . It is further agreed that the following Indemnity Agreement between the Owner and the named insureds is covered under the policy: Construction Manager agrees to indemnify, hold harmless and defend Owner, its City Council and each member thereof, and every officer and employee of Owner from any and all liability or financial loss resulting from any suits, claims, losses, or actions brought against any employee of Owner which results from the negligent actions of Construction Manager's officers, employees, agents or others employed by Construction Manager while engaged by Construction Manager in the performance of this agreement. assured shall not operate to increase the limit of the company's liability and that insurer waives any right of contribution with insurance which may be available to owner. above coverage, the company will give forty-five (45) days written notice of cancellation or material change to the certificate holder. at all times during the term of this agreement, Workers' Compensation Insurance as required by law. or as otherwise provided herein, Construction Manager shall maintain on file with the City Clerk of Owner a certificate of It is further agreed that the inclusion of more than one In the event of cancellation or material change in the 16.7.2 Construction Manager agrees to maintain in force 16.7.3 At all times during the term of this agreement, 5. the insurance carrier or carriers showing that the aforesaid policies are in effect in the amount above provided, the insured are named therein as specified herein and that the policies cannot be cancelled or reduced by Construction Manager except on forty-five (45) days notice $0 Owner. Construction Manager shall not have the right to receive compensation under this agreement until such certificate or certificates are filed with the City Clerk. Construction Manager shall not cancel said insurance coverage without the Owner having been given forty-five (45) days prior notice thereof by Construction Manager. 16.8 Independent Contractor. 16.8.1 The Construction Manager is and shall at all times remain as to the Owner a wholly independent contractor. Neither the Owner nor any of its agents shall have control over the conduct of the Construction Manager or any of the Construction Manager's employees, except as herein set forth. The Construction Manager shall not, at any time, or in any manner, represent that it or any of its agents or employees are in any manner agents or employees of the Owner. 16.9 Fair Employment Practices/Equal Opportunity Acts. 16.9.1 In performance of this agreement, the Construction Manager shall comply with all applicable provisions of the California Fair Employment Practices Act (California Labor Code Sections 1410 et. seq.) and the applicable equal employment provisions of the CGilxghts Acts of 1964 (42 U.S.C. 200e - 217), whichever is more restrictive. 16 . 10 Terminat ion of Agreement . 16.10.1 Owner may cancel this agreement at any time upon fifteen (15) days written notice to Construction Manager. Construction Manager agrees to cease all work under this agreement on or before the effective date of such notice. to be performed by and, accordingly the fee to be paid to, the Construction Manager, or to discontinue all further work at the end of any phase. 16.10.3 In the event of termination of this agreement by Owner, due to no fault or failure of performance by Construction Manager, Construction Manager shall be paid full compensation for all services and duties performed by Construction Manager, an amount to be determined as follows: (A) Construction Manager shall be entitled to retain any payments which may have been made to Construction Manager under the provisions of this agreement prior to said termination. (B) For work done in accordance with all of the terms and provisions of this agreement and for which payment is not yet due, Construction Manager shall be paid an amount equal to the amount of service performed prior to the effective date of termination; provided, however, that in no event shall the amount of money to be paid under the foregoing provisions of this paragraph exceed the amount which would be paid Construction Manager for the full performance of said items of service. 16.10.2 Owner reserves the right to amend the services 6. 37 16.11 Notice. 16.11.1 Whenever it shall be necessary for either party to serve notice on the other respecting this agreement, such notice shall be served by certified mail addressed to the City Manager of Owner, 1200 Elm Avenue, Carlsbad, California, 92008; or to Construction Manager, Koll Construction Company 7330 Engineer Road, San Diego, California 92111-1464, unless and until different addresses may be furnished in writing by either party to the other, and such notice shall be deemed to have been served within seventy-two (72) hours after the same has been deposited in the United States Post Office by certified mail. This shall be valid and sufficient service of notice for all purposes . 16.12 Conflict of Interest. 16.12.1 The Construction Manager agrees not to accept any employment during the term of this agreement by any other person, firm or corporation which employment is or may likely develop a conflict of interest between City's interest and the interests of third parties. "Conflict" as used herein shall be defined and interpreted in accordance with Section 1090 of the California Government Code. 16.13 Cost Reporting. 16.13.1 Any documentation or written report shall contain in a separate section the numbers and dollars amount of all contracts and subcontracts relating to the preparation of the document or report unless less than $5,000. 16.14 Prohibited Interest. 16.14.1 NO official of the Owner who is authorized in such capacity on behalf of the Owner to negotiate, make, accept, or approve, or take part in negotiating, making, accepting, or approving of any construction management, engineering inspection, construction, or material supply contractor, or any subcontractor in connection with the construction of the project, shall become directly or indirectly interested personally in this contract or in any part thereof. No officer, employee, architect, attorney, engineer, or inspector of or for the Owner who is authorized in such capacity and on behalf of the Owner to exercise any executive, supervisory, or other similar functions in connection with the performarrce of this contract shall become directly or indirectly interested personally in this contract or any part thereof . 16.15 Verbal Agreement or Conversation. 16.15.1 No verbal agreement or conversation with any officer, agent, or employee of the Owner, either before, during, or after the execution of this contract, shall affect or modify any of the terms or obligations herein contained nor such verbal agreement or conversation entitle the Construction Manager to any additional payment whatsoever under the terms of this contract . 16.16 Covenant Against Contingent Fees. 7. a 16.16.1 The Construction Manager warrants that the Construction Manager has not employed or retained any company or person, other than a bona fide employee, or consultant working for the Construction Manager to solicit or secure this agreement, and that Construction Manager has not paid or agreed to pay any company or person, other than a bona fide employee, or consultant any fee, commission, percentage, brokerage fee, gift, or any other consideration contingent upon, or resulting from the award or making of this agreement. For breach or violation of this warranty, the Owner shall have the right to annul this agreement without liability, or, in its discretion, to deduct from the agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. 16.17 Responsibility of the Construction Manager. 16.17.1 The Construction Manager is hired to render a professional service only and any payments made to the Construction Manager are compensation solely for such services the Construction Manager may render and recommendations the Construction Manager may make in the course of this project. 16.18 Construction Manager's Compliance. 16.18.1 The Construction Manager shall comply in all work under this agreement including but not limited to bidding and construction document preparation with all applicable federal, state and local laws. 16.19 Construction Limitation. 16.19.1 Construction Managerlor any of its Subsidiaries, is prohibited from bidding on, performing with Construction Manager's own forces or otherwise financially participating in any construction or other activities regarding this project except as set forth in this agreement. 16.20 Examination of Records. 16.20.1 Construction Manager agrees that Owner shall, until the expiration of three (3) years after the final payment under this agreement, have access to and the right to examine any directly pertinent books, documents, papers and records of Construction Manager and of all the transactions relating to this agreement. 16.21. Findings Confidential. 16.21.1 Any reports, information, data or similar writings given to or prepared or assembled by the Construction Manager under this Agreement, which the Owner requests to be kept as confidential, shall not be made available to any individual or organization by the Construction Manager without prior written approval of the Owner. 16.22. Conformity to Legal Requirements. 16.22.1 Construction Manager shall review all documents to verify that Architect made every effort to conform to all applicable federal, state, county and local laws and 8. agencies whose approval must be obtained, and shall ensure that all work on the site is performed as required by all agencies such as Cal OSHA, the State Industrial Accident Commission, and any other duly recognized authority. 16.23. Ownership of Documents. 16.23.1 16.24 Conflict. 16.24.1 In the event of any conflict between the terms of this article and either other provisions of this agreement or the general conditions of the contract for construction the terms of this article shall control. Any documents produced by the construction manager pursuant to this agreement shall belong to Owner. CITY OF CARLSBAD, a municipal corporation By: MARY H. CASLER, Mayor ATTEST: ALETHA L. RAUTENKRANZ, City Clerk APPROVED AS TO FORM: VINCENT F. BIONDO, JR., City Attorney KOLL CONSTRUCTION COMPANY, a division of The Koll Company, a California Corporation By: ATTEST : 9.