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HomeMy WebLinkAboutContracts & Agreements_164-2001_CCv0001.pdf 1 • fold)) L47 pi ( rri Agreement by and Between the City Council City of Redlands and Tilden-Coil Constructors, Inc. for Construction Management Services on the A.K. Smiley Public Library Restoration Project • Agreement for Construction Management Services on the A.K. Smiley Public Library Restoration Project 1. Parties and Date. This Agreement is made as of this 4 day of December in the year 2001 by and between the City of Redlands (hereinafter called the "Owner") and Tilden-Coil Constructors, Inc. (hereinafter called the "Construction Manager"), a corporation authorized to conduct business under the laws of the State of California with a place of business at 3612 Mission Inn Avenue, Riverside, California. 2. Recitals. 2.1 The principal members of the Construction Manager are professional consulting contractors, and represent that they possess the professional qualifications and expertise to provide the services called for herein. 2.2 Owner desires to retain the Construction Manager to perform construction management services necessary for the full and adequate completion of the A.K. Smiley Public Library Restoration Project (the "Management Project"). 3. Terms. 3.1 Construction Manager Services and Responsibilities. 3.1.1 Scope of Services. The Construction Manager agrees to further the interests of the Owner by furnishing the Construction Manager's skill and judgment in cooperation with, and in reliance upon, the sei-vices of an architect. The Construction Manager agrees to furnish business administration and management services, and to perform in an expeditious and economical manner consistent with the interests of the Owner. To these ends, the Construction Manager shall furnish all technical and professional services, including labor, material, equipment, transportation, supervision and expertise, necessan- to fully and adequately perform the tasks set forth in the Scope of Services attached hereto as Exhibit "A" and incorporated herein by reference, so as to ensure the full and adequate completion of the Management Project, including preparation of documents and report of completion (hereinafter referred to as the "Services"). The Construction Manager's Services shall include the monitoring and coordination of all architect services provided pursuant to an agreement between the Owner and its architect. 1 3.1.2 Additional Services. At any time during the term of this Agreement, the Owner may request the Construction Manager to perform Additional Services. As used herein, "Additional Services" shall mean any service, which is determined by the Owner to be necessary for proper completion of the Management Project, but which the parties did not reasonably anticipate would be necessary at the time of execution of this Agreement, and was not included in the Scope of Services. The Construction Manager shall not perform, nor be compensated for, Additional Services without obtaining authorization in the form of a written amendment to this Agreement pursuant to Section 3.4. 3.2 Owner's Responsibilities. The Owner shall perform the following responsibilities: 3.2.1 Information. The Owner shall provide full information regarding the requirements of the Management Project, which shall set forth the Owner's objectives, constraints and criteria. 3.2.2 Budget. The Owner shall provide a budget for the project. 3.2.3 Architect. The Owner shall retain an Architect whose services, duties and responsibilities shall be described in an Agreement between the Owner and the Architect. The Terms and Conditions of the Owner-Architect Agreement will be furnished to the Construction Manager. 3.2.4 Testing. The Owner shall furnish structural, mechanical, chemical and other laboratory tests, inspections and reports as required by law or the Contract Documents. 3.2.5 Professional Services. The Owner shall obtain such legal, accounting and insurance counseling services as may be required to perform its duties under this Agreement, including such auditing services as the Owner may require to verify the Project applications for payment or to ascertain how or for what purposes the prime contractors have used the monies paid by or on behalf of the Owner. 3.2.6 Documents. The Owner shall furnish the Construction Manager with a sufficient quantity of construction documents as such documents are requested by the Construction Manager. 3.2.7 Accuracy of Information. The services, information and reports required by this Section shall be furnished at the Owner's expense, and the Construction Manager shall be entitled to reasonably rely upon their accuracy and completeness. The Construction Manager shall not be entitled to unreasonably rely upon apparently inaccurate or incomplete information or reports. If the Construction Manager should believe that any information or report provided by the Owner is inaccurate or incomplete, the Construction Manager shall bring such belief to the attention of the Owner so as to allow the Owner to take any appropriate action to correct the error. If the °Wnet 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 hi the Owner to the Construction Manager and the Architect. 3.3 Owner's Representative. Owner hereby designates Larry Burgess, as Owner's Representative for the Management Project. The Owner's Representative shall have the authority to act on behalf of the Owner for all purposes under this Agreement. The Owner's Representative shall also review and give approval, as needed, to the details of Consultant's work as it progresses. The Owner's Representative 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 contractors on the Management Project. 3.4 Consultant's Representative. The Construction Manager hereby designates Kayne Brassard as the Construction Manager's Representative to the Owner. The Construction Manager's Representative shall have the authority to act on behalf of the Construction Manager for all purposes under this Agreement and shall coordinate all phases of the Services. The Construction Manager shall work closely and cooperate fully with the Owner's Representative and any other agencies, which may have jurisdiction over, or an interest in, the Services. The Construction Manager's Representative shall be available to the Owner's staff at all reasonable times. Any substitution in the Construction Manager's Representative shall be approved in writing by the Owner's Representative. 3.5 Substitution of Key Personnel. The Construction Manager has represented to the Owner that certain key personnel will perform specific tasks, duties and services under this Agreement, as set forth in the Scope of Services attached hereto at Exhibit "A. " Should one or more of such personnel become unavailable, the Construction Manager may substitute other personnel of at least equal competence upon written approval by the Owner. In the event that the Owner and Construction Manager cannot agree as to the substitution of the key personnel, the Owner shall be entitled to terminate this Agreement for cause, pursuant_to the provisions of Section 3, 10. The key personnel for performance of this Agreement are: Dayne Brassard. 3 3.6 Term of Services. 3.6.1 Commencement of Services. The Construction Manager shall commence work upon receipt of a written Notice to Proceed from the Owner. 3.6.2 Term. Unless earlier terminated as provided in Section 3. 10, this Agreement shall expire "upon a mutually agreeable schedule" from the date of the first notice to proceed issued by the Owner to a contractor on the Management Project, or upon the filing of a Notice of Completion for the Management Project, whichever is first to occur, unless extended by supplemental agreement. All applicable indemnification provisions of this Agreement shall remain in effect following the expiration or termination of this Agreement. The Construction Manager shall perform the Services as expeditiously as is consistent with reasonable skill and care and the orderly progress of the Management Project. 3.6.3 Extension of Terni. Should the Management Project schedule be significandy extended due to unforeseeable or unknown circumstances beyond the Construction Manager's control, this Agreement will be extended by supplemental agreement, and the Construction Manager will be compensated for this extension as "Additional Services". 3.7 Schedule and Progress of Services. 3.7.1 Schedule of Services. The Construction Manager shall perform the Services in a manner which will allow the satisfactory completion of the Management Project within the time schedule required in the Owner's agreements with the prime contractors. Construction Manager shall not be responsible for delays in the completion of the Management Project beyond its reasonable control. 3.7.2 Progress Reports. The Construction Manager shall regularly report to the Owner, through written correspondence, progress reports or oral presentations, its progress in providing required Services within the scheduled time periods. Such progress reports shall conform with the requirements set forth in the Scope of Services set forth in Exhibit "A" attached hereto. The Owner shall be promptly informed of all anticipated delays, In the event that the Construction Manager determines that a schedule modification is necessary, the Construction Manager shall promptly submit a revised Schedule for approval by the Owner's Representative. 3.7.3 Meetings. The Construction Manager shall conduct such pre-- construction and construction meetings as may be reasonably required for the full, adequate and timely completion of the Management Project, including those outlined in Exhibit "A" attached hereto, 3.7.4 Delay by Mutual Agreement. Performance of any Services under this Agreement may be delayed upon mutual agreement of the Parties. Upon such agreement, the Construction Manager's schedule for completion of the tasks affected by such delay shall be extended as necessary by the Owner. The Construction Manager shall take all reasonable steps to minimize delay in completion, and additional costs, resulting from any such extension. 3.8 Payment and Compensation. 4 Jj44 3.8.1 Construction Cost. The Total Construction Cost for the Management Project shall be defined as the sum of all of the contracts between the Owner and the contractors who will actually construct the Management Project. Total Construction Cost does not include the following: (a) compensation paid to the Architect, the Architect's consultants or other consultants hired by the Owner; (b) the costs of land or rights-of-way; (c) testing and inspection fees; (d) Reimbursable Costs as outlined in Exhibit "B" attached hereto and incorporated herein by reference; (e) asbestos consulting, testing and abatement costs; (f) the costs of this Agreement; and (g) other costs which are the responsibility of the Owner, including those provided for in Section 3.2. 3.8.2 Maximum Construction Cost. The Total Construction Cost for the Management Project shall be estimated by the Owner and the Owner's Architect before any requests for bids are distributed. This estimate shall be documented in writing and shall be the Maximum Construction Cost for the Management Project. The Construction Manager shall consult with the Architect and the Owner to suggest reasonable adjustments in the scope of the Management Project or alternative bids in the Construction Documents to ensure that the Total Construction Cost does not exceed this Maximum Construction Cost. 3.8.3 Adjustment to Construction Cost. If the Maximum Construction Cost is exceeded by the Total Construction Cost as evidenced by the sum of the lowest bids from bona fide bidders, the Owner shall: (1) give written approval of an increase in the Maximum Construction Cost; or (2) authorize rebidding of the Management Project or portions of the Management Project within a reasonable time; or (3) cooperate in revising the scope of the Management Project and the quality of the work so as to reduce the Total Construction Cost to the Maximum Construction Cost or lower. In the case of item (3), the Construction Manager, without additional compensation, shall cooperate with the Owner and Architect as necessary to bring the Total Construction Cost at or below the Maximum Construction Cost. 3.8.4 Compensation. The Construction Manager shall receive a Total Fee for all Services as follows: Eight percent (8%) of any portion of the first five hundred thousand dollars ($500,000) of the Total Construction Cost of the Management Project. Seven and one-half percent (7.5 %) of any portion of the next five hundred thousand dollars ($500,000) of the Total Construction Cost of the Management Project. 3.8.5 Reimbursable Expenses. The Owner shall. reimburse the Construction Manager for all Reimbursable Expenses as outlined in Exhibit 'B' at their actual cost. It is expressly understood and agreed that only the actual costs of the Reimbursable Expenses shall be charged to the Owner, and that the Construction Manager shall not be entitled to any overhead or profit for the Reimbursable Expenses. 3.8.6 Liquidated Damages. The Construction Manager shall be responsible for ensuring that the Management Project is completed within a mutually agreeable schedule from the date the first contractor is instructed in writing by the Owner to proceed with their work. Should the 5 Management Project not be completed within the time herein above stated, or as modified by the Owner in approved change orders, the Construction Manager's fee shall be reduced by an amount of Two Hundred Fifty Dollars ($250) per day as liquidated damages, but not as a penalty, for each calendar day's delay after the expiration of such period until the filing of a Notice of Completion. Liquidated Damages shall not apply if the delay is through no fault of the Construction Manager, or to the extent such delay results from actions of the prime contractor(s) or others not within the reasonable control of the Construction Manager. 3.8.7 Compensation Invoicing. The Construction Manager shall invoice an initial payment of twenty five percent (25 °./0) of its Total Fee on the date of bid openings. The Construction Manager shall invoice seventy five percent (75 O ) of its Total Fee in equal monthly increments for the performance period of the Management Project as established by the Project Construction Schedule. Each invoice shall specifically describe all work completed since the commencement of this Agreement or since the start of the subsequent billing periods, as appropriate, through the date of the invoice. 3.8.8 Payment of Compensation. Within thirty (30) days of its receipt of an invoice from the Construction Manager, the Owner shall review and pay all approved charges thereon. If the Owner requires additional information or documentation to verify and approve the compensation request, or if the Construction Manager fails to provide the Updated Project Construction Schedule as required, the Construction Manager shall promptly provide such information, documentation or schedule, and the payment period shall be extended by the number of days needed to provide such information or documentation. 3.8.9 Withholding/Retention. The Owner may elect to withhold ten percent (10°."0) of each fee payment requested pursuant to Section 3.8.7 to ensure the satisfactory completion of the Management Project. The Construction Manager may request release of the amount withheld upon the satisfactory completion of the Management Project as evidenced by the filing of a Notice of Completion by the Owner. The Owner shall pay to the Construction Manager those retained funds withheld within sixty (60) days of the request by the Construction Manager pursuant to the applicable Public Contract Code provisions. In the event that the work is not satisfactorily completed, the Owner may use the retention funds to offset any increased costs or damages incurred by Owner as a result of the Construction Manager's failure to complete its Services satisfactorily or to ensure the satisfactory completion of the Management Project, provided such delays or damages are within the reasonable control of the Construction Manager. This section shall not be construed to limit other remedies available to the Owner. Pursuant to Public Contract Code Section 22300, the Construction Manager may, at the Construction Manager's sole cost and expense, substitute securities equivalent to any monies withheld by the Owner to insure performance under this Agreement. Such security shall be deposited with the Owner, or a state or federally chartered bank as escrow agent, who shall pay such monies to the Construction Manager upon satisfactory completion of the Agreement. The Construction Manager shall be the beneficial owner of any security substituted for monies withheld and shall receive any interest accrued thereon. Securities eligible for in. vestment shall include those listed in Government Code Section 16430 or bank or savings and loan certificates of deposit. No such substitution shall be accepted until the Escrow Agreement, Forms of Security and any other document related to such substitution is reviewed and found acceptable by the Owner, nor unless the Construction Manager shall have notified the Owner 6 of its intention to substitute securities for retainage within ten (10) days of the signing of this Agreement. 3.8.10 Invoicing of Reimbursable Expenses. The Construction Manager shall invoice the Owner monthly for the Reimbursable Expenses as they are incurred. The invoice, shall specifically describe the expense for which reimbursement is sought. As stated above, it is expressly understood and agreed that only the actual costs of the Reimbursable Expenses shall be charged to the Owner and the Construction Manager shall not be entitled to any overhead or profit for the Reimbursable Expenses. Within thirty (30) days of its receipt of an invoice from the Construction Manager for the Reimbursable Expense, the Owner shall review and pay all approved charges thereon. If the Owner requires additional information or documentation to verify and approve the reimbursement expense, the Construction Manager shall promptly provide such information or documentation, and the payment period shall be extended by the number of days needed to provide such information or documentation. 3.8.11 Adjustment of Total Fee. The Total Fee shall be adjusted as the Total Construction Costs become more definite and known throughout the course of the Management Project. If any portions of the Management Project are deleted or otherwise not constructed, compensation for such portions of the Management Project shall be payable to the extent services are performed on such portions. The compensation shall be calculated as a percentage of the lowest bids from bona fide bidders on that portion of the Management Project or as negotiated by the Owner and the Construction Manager. 3.8.12 Compensation for Additional Services. The Construction Manager shall be compensated for Additional Services at the rate two and one-half(2,5) times its Direct Personnel Expense for such Additional Services. Direct Personnel Expense shall be defined as the direct salaries of the Construction Manager's personnel necessary to adequately complete the Additional Services, including the applicable portion of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutorily- required employee benefits. The Construction Manager shall invoice the Owner monthly for any Additional Services as they are incurred. Within thirty (30) days of its receipt of an invoice from the Construction Manager for the Additional Services, the Owner shall review and pay all approved charges thereon. If the Owner requires additional information or documentation to verify and approve the compensation request, the Construction Manager shall promptly provide such information or documentation, and the payment period shall he extended by the number of days needed to provide such information or documentation. 3.8.13 Late Payments of Invoicing. The Owner shall review and pay all approved invoices or portions thereof within thirty (30) days of their receipt. All approved amounts that remain unpaid after this thirty (30) day period may be subject to an interest penalty at the rate of ten percent (10%) per anum at the option of the Construction Manager. 3.8.14 Payment Upon Project Suspension or Abandonment. If the Management Project is suspended or abandoned in whole or in part, the Construction Manager shall be compensated for all Services performed prior to receipt of written notice from the Owner of such suspension or abandonment. If the Project is resumed after being suspended, the Construction Manager's compensation shall be equitably adjusted. 7 3.9 Retention of Records/Audit. The Construction Manager shall maintain all books, documents, papers, accounting records, and other evidence pertaining to the performance of the Agreement, including, but not limited to the costs of administering the Agreement. The Construction Manager shall make such materials available at its offices at all reasonable times during the Agreement period and for three years from the date of final payment under the Agreement. The Owner, State, the State Auditor General, or any duly authorized representative of the Federal government shall have access to any books, records, and documents of the Construction Manager that are pertinent to the Agreement for audits, examinations, excerpts, and transactions. Copies thereof shall be furnished if requested. 3.10 Termination of Agreement. 3.10.1 Notice. The Owner may, by seven (7) days written notice to the Construction Manager, terminate this Agreement in whole or in part at any time. Such termination may be for Owner's convenience or because of the Construction Manager's failure to perform its dunes and obligations under this Agreement including, but not limited to, the failure of the Construction Manager to timely perform its Services. 3.10.2 Discontinuance of Services. Upon receipt of written Notice of Termination, the Construction Manager shall discontinue all affected Services within seven (7) days of receipt of the Notice, unless otherwise directed by the Notice, and deliver to the Owner all materials prepared or accumulated by the Construction Manager in performance of the Services, whether completed or in progress. 3.10.3 Effect of Termination For Convenience. If the termination is to he for the convenience of the Owner, the Owner shall compensate the Construction Manager for Services satisfactorily provided through the date of termination. In addition, the Construction Manager shall not be entitled to payment for any Reimbursable Expenses beyond the date of expiration or termination of this Agreement. The Construction Manager shall provide documentation deemed adequate by Owner's Representative to show the Services actually completed by Construction Manager prior to the date of termination. In the event of a termination for convenience, this Agreement shall terminate seven (7) days following receipt by the Construction Manager of the written Notice of Termination. 3.10.4 Effect of Termination for Cause. If the termination is due to the failure of the Construction Manager to fulfill its obligations under this Agreement, the Construction Manager shall be compensated for those Services which have been completed and accepted by the Owner. In such case, the Owner may take over the work and prosecute the same to completion by contract or otherwise. Following discontinuance of the Services, the Owner may arrange for a meeting with the Construction Manager to determine what steps, if any, the Construction Manager can take to adequately fulfill its requirements under this Agreement. In its sole discretion, the Owner's Representative may propose an adjustment to the terms and conditions of the Agreement, including the contract price. Such contract adjustments, if accepted in writing by the Parties, shall become binding on the Construction Manager and shall be performed as part of this Agreement. In the event of termination for cause, unless otherwise agreed to in writing by the Parties, this Agreement shall terminate thirty 30 days following the date the Notice of Termination was mailed to the 8 Construction Manager. Termination of this Agreement for cause may be considered by the Owner in determining whether to enter into future agreements with the Construction Manager. 3.10.5 Cumulative Remedies. The rights and remedies of the Parties provided in this Section are in addition to any other rights and remedies provided by law or under this Agreement. 3.10.6 Procurement of Similar Services. In the event this Agreement is terminated in whole or in part, as provided by this Section, the Owner may procure, upon such terms and in such manner, as it deems appropriate, services similar to those terminated. 3.10.7 Waivers. The Construction Manager, in executing this Agreement, shall be deemed to have waived any and all claims for damages, which may otherwise arise from the Owner's termination of this Agreement, for convenience or cause. 3.10.8 Termination by the Construction Manager. This Agreement may be terminated by the Construction Manager only upon the Owner's failure to substantially perform in accordance with the terms of this Agreement, and only upon thirty (30) days advance written notice. If the Construction Manager provides notice to the Owner under this subsection, the Owner may expedite the termination of this Agreement by providing written notice to the Construction Manager to terminate its services on a date certain. If termination occurs under this subsection, the Construction Manager shall be compensated for those Services, which have been completed and accepted by the Owner. 3.11 Indemnification. 3.11.1 Responsibilities. The Construction Manager agrees to indemnify and hold harmless the Owner, its officials, officers, agents, consultants and employees from any and all claims, demands, costs or liabilities to property or persons, including wrongful death, arising from or connected with the Services provided hereunder due to any negligent acts, errors, omissions or willful misconduct of the Construction Manager, its officials, officers, agents, consultants or employees, including without limitation, the payment of all reasonable attorneys fees and other related costs and expenses. The Construction Manager's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the Owner, its officials, officers, agents, consultants and employees. 3.11.2 Effect of Acceptance. The Construction Manager shall be responsible for the professional quality, technical accuracy and the coordination of the Services. The Owner's review or acceptance of, or payment for any services performed by the Construction Manager under this Agreement, shall not be construed to operate as a waiver of any rights the Owner may hold under this Agreement or of any cause of action arising out the Construction Manager's performance of this Agreement. Further, the Construction Manager shall be and remain liable to the Owner, in accordance with applicable law, for all damages to the Owner caused by the Construction Manager's negligent performance of any of the Services. 9 3.12 Insurance. The Construction Manager shall obtain, and shall require its Subconsultants to obtain, insurance of the types and in the amounts described below and satisfactory to the Owner. 3.12.1 Commercial General Liability Insurance. The Construction Manager shall maintainoccurrence version commercial general liability insurance or equivalent form with a combined single limit of not less than $1,000,000.00 per occurrence. If such insurance contains a general aggregate limit, it shall apply separately to this Agreement or be no less than two times the occurrence limit. Such insurance shall: 3.12.1.1Include the Owner, its officials, officers, employees, and agents as additional insureds with respect to performance of Services and shall contain no special limitations on the scope of coverage or the protection afforded to these additional insureds; 3.12.1.2Be primary with respect to any insurance or self insurance programs covering the Owner, its officials, officers, employees, agents, and consultants; and 3.12.1.3Contain standard separation of insureds provisions. 3.12.2 Business Automobile Liability Insurance. The Construction Manager shall maintain business automobile liability insurance or equivalent form with a combined single limit of not less than $1,000,000.00 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. 3.12.3 Workers' Compensation Insurance. The Construction Manager shall maintain workers' compensation insurance with statutory limits and employersliability insurance with limits of not less than $1,000,000.00 each accident. 3.12.4 Certificates of Insurance/Endorsements. The Construction .Manager shall, prior to commencement of Services, furnish the Owner with properly executed certificates of insurance and endorsements, which clearly evidence all insurance required under this Agreement. Such certificates or endorsement shall provide also that such insurance shall not be canceled, allowed to expire or be materially reduced in coverage, except on 30 days' prior written notice to the Owner. In addition, the Construction Manager shall allow the Owner to view, at any reasonable time upon three (3) business days' notice, full copies of any policy required hereunder. The Construction Manager shall make such policies available at the offices of the Owner. The Owner shall have the sole discretion to determine whether the certificates and endorsements presented comply with the provisions of this Agreement. 3.12.5 Coverage Maintenance. The Construction Manager shall replace certificates, policies and endorsements for any insurance expiring prior to completion of Services under this Agreement. Further, the Construction Manager shall maintain such insurance from the time Services commence until Services are completed, except as otherwise provided by this Agreement. 10 3.12.6 Licensed Insurer. The Construction Manager shall place such insurance with insurers having A.M. Best Company ratings of no less than ANTI and licensed to do business in California, unless otherwise approved, in writing, by the Owner's Representative. 3.12.7 Construction Manager as Additional Insured. Owner shall require its prime contractors, and shall request the architect and the architect's consultants hired for the construction of the Management Project to add the Construction Manager as an additional insured on their general liability insurance policy required under it's contract. 3.13 Appearance at Hearings. If and when required by the Owner, the Construction Manager shall render assistance at public hearings or other meetings related to the Management Project or necessary to the performance of the Services. 3.14 Standard of Care: Licenses. The Construction Manager represents and maintains that it is skilled in the professional calling necessary to perform all Services, duties and obligations required by this Agreement to fully and adequately complete the Management Project. The Construction Manager shall perform the Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. The Construction Manager further represents and warrants to the Owner that it has all licenses, permits, qualifications and approvals of whatever nature are legally required to practice its profession. The Construction Manager further represents that it shall keep all such licenses and approvals in effect during the term of this Agreement. 3.15 Review of Services. The Construction Manager shall allow the Owner's Representative to inspect or review the Construction Manager's Services at any reasonable time in order to determine whether the Services are being performed according to the terms of this Agreement. 11 3.16 Status of Construction Manager/Subconsultants. 3.16.1 Independent Contractor. Owner retains the Construction Manager on an independent contractor basis and the Construction Manager is not an employee, agent or, representative of the Owner. Personnel performing the Services under this Agreement on behalf of the Construction Manager shall at all times be under the Construction Manager's exclusive direction and control. The Construction Manager shall pay all wages, salaries and other amounts due such personnel in connection with their performance of Services and as required by law. The Construction Manager shall be responsible for all reports and obligations respecting such personnel, including but not limited to, social security taxes, income tax withholdings, unemployment insurance, and workers' compensation insurance. 3.16.2 Prevailing Wages. The Construction Manager is alerted to the requirements of California Labor Code Sections 1770 et seq., which would require the payment of prevailing wages, were the Services or any portion thereof determined to be a public work, as defined therein, The Construction Manager shall defend, indemnify, and hold harmless the Owner, its officers, employees, consultants, and agents from any claimor liability, including without limitation attorneys' fees, arising from any failure or alleged failure of Construction Manager to comply with California Labor Code Sections 1770 et seq. 3.16.3 Assignment or Transfer. All Services to be furnished under this Agreement shall be deemed professional services. As such, the Construction Manager shall have neither the right nor the power to assign, sublet, transfer or otherwise substitute its interest in or obligations under this Agreement without the prior written consent of the Owner. 3.16.4 Subcontracting. The Construction Manager shall perform the work contemplated with resources available within its own organization and no portion of the work pertinent to this Agreement shall be subcontracted without written authorization by the Owner. 3.17 Copies of Materials. The Owner shall receive or have the right to obtain for its records copies of all materials and documents which may be prepared by the Construction Manager under this Agreement. The Owner shall not be limited in any way in their use of such materials or documents at any time, provided that any such use not within the purposes intended by this Agreement shall be at the Owner's sole risk and provided that the Construction Manager shall be indemnified by the Owner against any damages resulting from or arising out of such use, including the release of this material to third parties for a use not intended by this Agreement. 3.18 Prohibited Interests. 3.18.1 Solicitation. The Construction Manager maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for the Construction Manager, to solicit or secure this Agreement. Further, the Construction Manager warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for the Construction Manager, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of 12 this Agreement. For breach or violation of this warranty, the Owner shall have the right to rescind this Agreement without liability. 3.18.2 Conflict of Interest. For the term of this Agreement, no member, officer or employee of the Owner, during the term of his or her service with the Owner, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising therefrom. 3.18.3 Conflict of Employment. Employment by the Construction Manager of personnel on the payroll of Owner shall not be permitted in the performance of the Services, even though such employment may occur outside of the employee's regular working hours or on weekends, holidays or vacation time. Further, the employment by the Construction Manager of personnel who have been on the Owner's payroll within one year prior to the date of execution of this Agreement, where this employment is caused by and or dependent upon the Construction Manager securing this or related Agreements with the Owner, is prohibited, 3.19 Equal Opportunity Employment. The Construction Manager represents that it is an equal opportunity employer and it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, sex or age. Such non- discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 3.20 Right to Employ Other Consultants. The Owner reserves the right to employ other consultants in connection with the Management Project, or to perform work related to the Management Project with the Owner's own forces. The Construction Manager shall notify the Owner if any such independent action will in any way compromise the Construction Manager's responsibilities under this Agreement. 3.21 Governing Law. This Agreement shall be governed by and construed with the laws of the State of California. 3.22 Attorneys' Fees. If either party commences an action against the other party arising out of or in connection with this Agreement, the prevailing party in such litigation shall be entitled to have and recover from the losing party reasonable attorneys' fees and costs of suit. 3.23 Arbitration/Mediation. All claims, disputes and other matters in question between the parties to this Agreement arising out of or relating to this Agreement or the breach thereof, may be decided by binding or non-binding arbitration or mediation if the parties mutually agree. No arbitration or mediation arising out of or relating to this Agreement shall include, by consolidation, joinder or in. any other manner, any additional person not a party to this Agreement except by written consent containing a specific reference to this Agreement and signed by the Construction Manager, the Owner, and any other person sought to be joined. Any consent to arbitration or mediation involving an additional person or persons shall not constitute consent to arbitration or mediation of any dispute not described therein or with any person not named or described therein. This agreement to arbitrate or mediate and any agreement to arbitrate or mediate with an additional person or persons duly consented to by the parties to this Agreement shall be specifically enforceable. Notice of request for arbitration or mediation shall be filed in writing with the other parry to this Agreement, and a copy shall also be filed with the Architect. The request shall be made 13 within a reasonable time after the claim., dispute or other matter in question has arisen. In no event shall the request for arbitration or mediation be made after the date when institution of legal or equitable proceeding based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations. 3.24 Time of Essence. Time is of the essence for each and every provision of this Agreement. 3.25 Headings. Article and section headings, paragraph captions or marginal headings contained in this Agreement are for convenience only and shall have no effect in the construction or interpretation of any provision herein. 3.26 Notification. All notices hereunder and communications regarding interpretation of the terms of the Agreement or changes thereto shall be provided by the mailing thereof by registered or certified mail, return receipt requested, postage prepaid and addressed as follows: Construction Manager: Owner: Tilden-Coil Constructors, Inc, City of Redlands 3612 Mission Inn Avenue 35 Cajon Street Riverside, California 92501 Redlands, California 92373 Attn: Dean Irving Atm: Larry E. Burgess Any notice so given shall be considered served on the other party three (3) days after deposit in the U.S. mail, first class postage prepaid, return receipt requested, and addressed to the party at its applicable address. Actual notice shall be deemed adequate notice on the date actual notice occurred regardless of the method of service. 3.27 Conflicting Provisions. In the event that provisions of any attached appendices or exhibits conflict in any way with the provisions set forth in this Agreement, the language, terms and conditions contained in this Agreement shall control the actions and obligations of the Parties and the interpretation of the Parties' understanding concerning the performance of the Services. 3.28 Contract Amendment. In the event that the parties determine that the Scope of Services or other provisions of this Agreement must be altered, the parties may execute a contract amendment to delete Services, to add Services or to amend any other provision of this Agreement. All such contract amendments must be in the form of a written instrument signed by the original. signatories to this Agreement, or their successors or designees. 3.29 Entire Agreement. This Agreement constitutes the entire agreement between the Parties relating to the subject matter hereof and supersedes any previous agreements or understandings. 3.30 Validity of Agreement. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. 3.31 Extemporaneous Agreements or Conditions. The Owner and the Construction Manager have executed this Agreement exclusively on the terms and conditions specified herein, 14 This Agreement constitutes the sole agreement between the Parties concerning the performance of services and shall supersede any previous agreements or understandings. City of Redlands Tilden-Coil Constructors, Inc. By: ,--- By: Mayor Dean Irving, President Attest: 70 By: ( City lerk Date: December 4. 2001 Exhibit 'A' Scope of Services The Construction Manager's Scope of Services under this Agreement shall include the following: 1. Preconstruction Phase: A. Assignment of Responsibilities: The Construction Manager shall assign responsibilities for safety precautions and programs, temporary Project facilities, and equipment, materials and services for common use of the contractors. The Construction Manager shall verify that the requirements and assignment of responsibilities are included in the proposed Contract Documents. B. Coordination of Contract Documents: The Construction Manager shall.review the Drawings and Specifications to ensure that: (1) the Work of the separate prime contractors is coordinated; (2) all requirements for the Management Project have been assigned to the appropriate separate contracts; (3) the likelihood of jurisdictional disputes has been minimized; and (4) proper coordination has been provided for phased construction. C. Summary Project Schedule: The Construction Manager shall develop a Summary Project Construction Schedule providing for all major elements, such as phasing of construction and times of commencement and completion required of each separate prime contractor. The Construction Manager shall provide the Project Construction Schedule for each set of Bidding Documents. D. Competitive Bidding: The Construction Manager shall cooperate with and assist the Owner in ensuring that all contracts for construction are competitively bid when and as required by law. E. Bonding Requirements: The Construction Manager shall cooperate with and assist the Owner in ensuring that the following requirements are included in all proposed contract documents: (1) applicable requirements for equal employment opportunity programs; (2) performance bonds at 100% of the total contract amount; (3) labor and material bonds at 100% of the total contract amount; and (4) bid bonds at 10% of the total contract amount. F. Bidder Interest and Bidding Process: The Construction Manager shall not be a bidder on any individual contract within the Management Project. However, the Construction Manager shall: (1) develop Biddersinterest in the Project; (2) assist the Owner in the pre- qualification of bidders by sitting on the evaluation committee; (3) assist the Owner in checking the references and experience of the bidders; (4) share information in its possession with the Owner and the evaluation committee; (5) establish bidding schedules; (6) assist the Owner in issuing Bidding Documents to Bidders; (7) conduct pre-bid conferences to familiarize Bidders with the Bidding Documents, management techniques and any special systems, materials or methods; and (8) assist the Owner-with the receipt of questions from Bidders and with the issuance of Addenda. 16 G. Bid Evaluation: With the Architect's assistance, the Construction Manager shall receive bids, prepare bid summaries and make recommendations to the Owner for award of contracts or the rejection of Bids. H. Certification of Prime Contract Scope: The Construction Manager shall certify in writing that the contracts contained in the submittal represent all the prime contracts required to perform the work in the contract plans and specifications of the total Management Project, and that no additional prime contracts are foreseen to complete the necessary work. Pre-Award Conferences: With the Architect's assistance, the Construction Manager shall conduct pre-award conferences with successful Bidders. J. Preparation of Construction Contracts: The Construction Manager shall assist the Owner in preparing Construction Contracts, K. Coordination of Architect Services: The Construction Manager shall assist the Owner in selecting a qualified architect for the Management Project. To this end, the Construction Manager shall participate in any meetings as may be required by the Owner to coordinate and complete the selection process. Once selected, the Construction Manager shall be responsible for coordinating and monitoring all of the Architect's pre-construction services provided to the Owner. The Construction Manager shall work cooperatively with the Owner and its architect in reviewing, revising and producing plans, specifications and drawings, which meet the needs and desires of the Owner. When directed by the Owner, the Construction Manager shall have the authority to act on behalf of the Owner, and shall communicate any Owner responses regarding the details of architect's work as it progresses. The Construction Manager shall furnish such services so as to maintain the orderly progress of the architect's services. 2. Construction Phase. The Construction Phase will commence with the award of the first Construction Contract. A. Contract Administration: The Construction Manager, in cooperation with the Architect, shall provide administration of the Contracts for Construction as set forth below and in the General Conditions of the Owner's contracts with the prime contractors on the Management Project. B. Construction Administration: The Construction Manager shall provide administrative, management and related services as required to coordinate work of the contractors with each other and with the activities and responsibilities of the Construction Manager, the Owner, and the Architect to complete the Project in accordance with the Owner's objectives for cost, time and quality. The Construction Manager shall provide sufficient organization, personnel and management to carry out the requirements of this Agreement. C. Mee .# , Agendas, and Minutes: The Construction Manager shall schedule and conduct precomtmcdon meetings and construction field meetings to discuss such matters as procedures, progress problems and scheduling. The construction phase field meetings "Field Meetings") shall be held at least weekly on a date and at a tune mutually agreeable to the Owner and Construction Manager. The Field Meetings shall be attended by the contractors, designated Owner representatives and any other interested parties requested by the Owner, and shall encompass focused and informal discussions concerning scope, schedule, and current progress of services. relevant cost issues, and future project objectives. The Construction Manager shall be responsible for the preparation and distribution of meeting agendas for all Field Meetings. Such agendas shall be received by the Owner and other attendees no later than two (2) working days prior to the meeting. The Construction Manager shall also ensure that the Architect prepares and promptly distributes official minutes of such meetings. D. Project Construction Schedule and Updates: The Construction Manager shall prepare the Project Construction Schedule, The Construction Manager shall incorporate the activities of all of the contractors on the Project, including activity sequences and durations, allocation of labor and materials, processing of Shop Drawings, Product Data and Samples, and delivery of products requiring long lead time procurement. The Construction Manager shall also include the Owner's occupancy requirements showing portions of the Project having occupancy priority, update and reissue the Project Construction Schedule as required to show current conditions and revisions required by actual experience. E. Correction of Poor Contractor Performance: The Construction Manager shall endeavor to achieve satisfactory performance from each of the contractors. The Construction Manager shall recommend courses of action to the Owner when requirements of a contract are not being fulfilled and the nonperforming party will not take satisfactory corrective action from the Construction Manager,Architect or Owner. F. Incorporation of Approved Changes: The Construction Manager shall incorporate approved changes as they occur, and develop cash flow reports and forecasts as needed. G. Changes: The Construction Manager shall: (1) recommend necessary or desirable changes to the Architect and the Owner; (2) review requests for changes; (3) assist in negotiating contractorsproposals; (4) submit recommendations to the Architect and the Owner;and (5) prepare and sign Change Orders for the Architect's signature and the Owner's authorization. H. Progress and Final Payments: The Construction Manager shall develop and implement procedures for the review and processing of Applications by contractors for progress and final payments. The Construction Manager shall make recommendations to the Architect for certification to the Owner for payment. Monitoring of Construction Costs: The Construction Manager shall provide regular monitoring of the approved estimates of Total Construction Cost, showing actual costs for activities in progress, and estimates for uncompleted tasks. The Construction Manager shall identify variances between actual and budgeted or estimated costs, and advise the Owner and the Architect whenever Project costs exceed budgets or estimates. J. Accounting Records: The Construction Manager shall maintain cost accounting records on authorized work performed under unit costs, additional work performed on the basis of actual costs of labor and materials, or other work requiring accounting records. 18 K. Safety Programs: The Construction Manager shall ensure that safety programs are developed by each of the prime contractors as required by their contract documents, and shall coordinate the safety programs for the Project. L. Permits, Fees and Assessments: The Construction Manager shall assist in obtaining building permits and special permits for permanent improvements. The Construction Manager shall verify that the Owner has paid applicable fees and assessments, and shall assist in obtaining approvals from authorities having jurisdiction over the Management Project. M. Professional Services: The Construction Manager shall assist the Owner in selecting and retaining the professional services of surveyors, special consultants and testing laboratories, and shall coordinate their services. The Construction Manager shall coordinate with the Owner's inspector all testing required by the Architect(s) or other third parties. All inspection reports shall be provided to the Construction Manager on a regular basis. N. Defects in Work: The Construction Manager shall determine whether the work of each contractor is being performed in accordance with the requirements of their contract documents, and shall endeavor to guard the Owner against defects and deficiencies in such work, The Construction Manager shall make recommendations to the Architect regarding special inspection or testing of Work not in accordance with the provisions of the contract documents whether or not such work is then fabricated, installed or completed. The Construction Manager shall also inform the Architect, Owner and Inspector of Record of work that Project Manager believes does not conform to the requirements of the contract documents and should be rejected by the Architect. The Construction Manager shall, in conjunction with the Architect and Inspector of Record, review any contractor's recommendations for corrective action on observed nonconforming work. 0. Means and Methods: The Construction Manager shall not be responsible for the construction means, methods, techniques, sequences and procedures employed by the contractors in performance of their contracts with the Owner. The Construction Manager shall also not be responsible for the failure of any contractor to carry out their work in accordance with the contract documents. The Construction Manager shall be responsible, however, for any reports, advice or information provided to the Owner regarding the Management Project and the work of the prime contractors, including any information regarding the compliance of their work with the contract documents. P. Questions Regarding Drawings and Specifications: The Construction Manager shall consult with the Architect and the Owner if any contractor requests interpretations of the meaning and intent of the Drawings and Specifications, and shall assist in the resolution of questions, which may arise. Q. Insurance Requirements: The Construction Manager shall receive Certificates of Insurance and Endorsements from the contractors, and shall forward them to the Owner's Director of Purchasing. R. Submittal Review: The Construction Manager shall receive and review from the prime contractors all Shop Drawings, Product Data, Samples and other submittals, The Construction Manager shall coordinate them with information contained in related documents and 19 transmit to the Architect for review and approval. In collaboration with the Architect, the Construction Manager shall establish and implement procedures for expediting the processing and approval of Shop Drawings, Product Data, Samples and other submittals. S. Progress Reports: The Construction Manager shall record the progress of the Management Project, and shall submit weekly written progress reports to the Owner and the Architect including information on each contractor and each contractor's Work, as well as the entire Project, showing percentages of completion and the number and amounts of proposed and executed Change Orders and their effect on the Contract Sum as of the date of the report. The Construction Manager shall also keep a daily log containing a record of weather, contractors, visitors, inspections, work on the site, number of workers, work accomplished, problems encountered, and other similar relevant data as the Owner may require. The Construction Manager shall make the log available to the Owner, Inspectors and the Architect. T. Record Copies of Documents: The Construction Manager shall maintain and update at the Management Project site, on a weekly basis, a record copy of the following: (1) all Contracts, Drawings, Specifications, Addenda, Change Orders and other Modifications, in good order and marked to record all changes made during construction; (2) Shop Drawings; (3) Product Data; (4) samples; (5) submittals; (6) purchases; (7) materials; (8) equipment; (9) applicable handbooks; (10) maintenance and operating manuals and instructions; and (11) other related documents and revisions which arise out of the contracts or work. The Construction Manager shall maintain records in duplicate of the following: (1) principal building layout lines; (2) elevations of the bottom of footings; and (3) floor levels and key site elevations certified by a qualified surveyor or professional engineer. The Construction Manager shall make all records available to the Owner and the Architect. Upon demand at any time, the Construction Manager shall provide all such documents to the Owner within ten (10) days of such request. At the completion of the Management Project, the Construction Manager shall deliver all such records to the Architect for the Owner, such that the Architect may complete the "Record Drawings" (also referred to as "as-built drawings"). U. Materials and Equipment: When bids and/or quotations are received for equipment, the Construction Manager shall assist the Owner in determining the lowest responsible/responsive bidder. The Construction Manager shall arrange for delivery and storage, protection and security for Owner-purchased materials, systems and equipment, which are a part of the Project, until such items are incorporated into the Management Project. The Construction Manager shall coordinate with or assign these activities to the appropriate prime contractor who is responsible for the installation of such materials, systems, and equipment. The Construction Manager or its designee shall receive at the Management Project site the delivery of all equipment and supplies. The Construction Manager or its designee shall inspect all deliveries for damages or errors, and shall coordinate with all vendors/suppliers any necessary corrections of such damages or errors prior to signing for receipt of the equipment or supplies. The Construction Manager or its designee shall not accept any equipment or supplies, which contain damage or errors. The Owner shall pay only for equipment and supplies which do not contain any damage or errors, and which have been received, inspected and signed-for by the Construction Manager or its designee. The Construction Manager shall be responsible and liable to the Owner for any equipment or supplies accepted in violation of this paragraph. 20 V. Testing: With the Architect and the Owner's maintenance personnel, the Construction Manager shall observe the prime contractor& check-out of utilities,operational systems and equipment for readiness, and shall assist in their initial start-up and tes.d!0. W. Project Close-Out and Punch List: When the Construction Manager considers each p._. e contractor's work or a designated portion thereof substantially complete, the Construction Manager shall prepare for the Architect a list of incomplete or unsatisfactory items and a schedule for their completion. The Construction Manager shall assist the Architect and inspectors condos , inspections, After the Architect certifies the Date of Substantial Completion of the Work, the Construction Manager shall coordinate the correction and completion of the Work and any punch list items. X. Substantial Completion: The Construction Manager shall assist the Architect in determining i when the Project or a designated portion thereof is substantially complete, The Construction tion er shall,prepare for the Architect a summary of the status of the work of each prime contractor, listing changes in the previously issued Certificates of Substantial Completion of the Work and recommending the times within which contractors shall complete uncompleted items on their Certificate of Substantial Completion of the Work and punch list. Y. Final Inspection and Completion: Following the Architect's issuance of a Certificate of Substantial Completion of the Project or designated portion thereof, the Construction Manager shall evaluate the completion of the work of the contractors and make recommendations to the Architect when Work is ready for final inspection. The Construction Manager shall assist the Architect and inspectors in conducting final inspections, and shall secure and transmit to the Owner required guarantees, affidavits, releases, bonds and waivers. The Construction Manager shall also deliver all keys,manuals,record drawings and maintenance stocks to the Owner. Z. Warranty Period; The Construction Manager shall perform any necessary management services during the warranty period of the construction contracts. The Owner shall. reimburse the Construction Manager under the provisions of Section 3.8.5 AL Amendments: The extent of the duties,responsibilities and limitations of authority of the Construction Manager as a representative of the Owner during construction- truction shall not be modified or extended without the written consent of the Owner and the Construction Manager. AB. Coordination of Architect Services: The Construction Dana et shall be responsible for coordinating g and monitoring all of the Architect's construction phase services provided to the Owner (Phases 8-9), as outlined in Exhibit "C" attached hereto. When directed by the Owner, the Construction Manager shall have the authority to act on behalf alf of the Owner, and shall communicate any Owner responses regarding the details of architect's work as it progresses. The Construction Ma r shall furnish such services so as to m the orderly progress of the architect's services. 21 Exhibit 'B' Reimbursable Expenses The following Reimbursable Expenses shall be provided under the Construction Manager's direction and shall be reimbursable items under this Agreement. These items and services shall he billed at their actual cost, and the Construction Manager shall take all reasonable steps necessary to obtain the most competitive prices available for these items. To this end, the Construction Manager shall take all reasonable steps necessary to keep the actual costs of these reimbursable items equal to or less than the below listed estimates. The cost for any additional items shall not be reimbursable unless advance written authorization is provided by the Owner to the Construction Manager to obtain the item. [The parties agree to amend this Agreement to specify the reimbursable expenses when the construction budget becomes more definable.]