HomeMy WebLinkAbout4/23/2003 - STAFF REPORTS (2) DATE: APRIL 23, 2003
TO: CITY COUNCIL
FROM: DIRECTOR OF COMMUNITY & ECONOMIC DEVELOPMENT
DIRECTOR OF PROCUREMENT & CONTRACTING
APPROVAL OF CONTRACT WITH 0. W. JOHNSTON CONSTRUCTION, INC. FOR
CONSTRUCTION MANAGEMENT SERVICES FOR NEW VISITORS CENTER LOCATED
AT 2901 NORTH PALM CANYON DRIVE, THE FORMER TRAMWAY GAS STATION
RECOMMENDATION:
It is recommended that the City Council approve:
- a contract with D. W. Johnston Construction, Inc. of Palm Springs in an
amount not to exceed$136,378 for general conditions and pre-construction,
construction, and post construction management services related to the
City's new Visitors Center to be located at 2901 North Palm Canyon Drive,
in a form acceptable to the City Attorney and approve budget resolution
appropriating the funds necessary to fund the contract.
SUMMARY:
The ability to retain the services of an experienced construction management firm
with local experience with projects of similar or larger size, scope and complexity is
key to successfully managing the Visitors Center project. The construction
management firm would be responsible for the cost of general conditions and
providing pre-construction services, including value engineering options and
preparation of bid documents for bidding each trade contract. The resultant trade
contracts and contractors would be managed by the construction management firm
who would be on the City's team. Use of this delivery method allows the City to
streamline the required bidding of construction trade contractors and to provide
necessary oversight services during the aggressive time frame allowed for
completion of the project by October 31, 2001 It allows the City to decide in
advance who will administer the general conditions and coordinate the project and
to benefit from the best cost for each individual trade. That is not typically the result
when using a General Contractor bidding in a lump sum resulting from a
conventional design-bid-build process. The general conditions and fee for the
construction management services covered bythis contract are$136,378,which are
included in the currently estimated construction budget for the project of$737,000.
A similar arrangement for construction management services was utilized by the
City during the successful construction of the new downtown parking structure.
BACKGROUND:
On December 4, 2002 the City Council approved the acquisition of the former
Tramway Gas Station for Conversion to a new City,Visitors Center. On January 29,
2003 a contract in the amount of$18,000 was approved with O'Donnell+ Escalante
Architects for pre-design and schematic design services. Study Sessions were held
with the City Council on March 20 and 26, 2003 to discuss conceptual Schematic
Designs for the project. Based upon the entirety of discussions with the various
interested parties, a preferred Schematic Design was developed to serve as the
basis for construction documents, preparation of bid documents and eventual
construction (see attached). The design includes the interior improvements to the
former gas station building, construction of a new separate building housing
expanded restroom facilities, site improvements including landscaping and a trail
system linking the building site to the City's entry sign north of the site, plus an
adjacent parking lot located just west of the Visitors Center buildings with 37 parking
spaces and 3 bus spaces.
To accommodate the aggressive design and construction schedule for this project,
which calls for completion and move-in to the new facility prior to the expiration of
the current Visitors Center lease on October 31, 2003, staff recommends the
utilization of a local contractor to provide construction management services, similar
to that employed by the City Council in 2002 for the construction of the new
downtown parking structure.
The comparative roles of the current team are as follows:
Downtown Parking Structure Visitors Center
Design: Walker Parking Structures O'Donnell + Escalante
Construction
Management: Turner Construction Co. D. W. Johnston Construction
Owner's
Representative: Michael Fontana and Assoc. Michael Fontana and Assoc.
General Project Allen F. Smoot, AAE John S. Raymond
Oversight: Executive Director-Airports Director of Community
& Economic Development
Competitive Harold E. Good, CPPO Harold E. Good, CPPO
Director of Procurement Director of Procurement
& Contracting & Contracting
The Construction Manager would coordinate all construction site activities including
managing all trade contracts on behalf of the City and as developed through
competitive bid process. D. W. Johnston is well-suited to this role given the firm's
prior contractor role during the 1998-99 remodeling of the Tramway Gas Station for
its use as the Montana St. Martin Gallery. The construction management services
covered by this contract are $136,378 which includes General Conditions costs of
$82,366 (i.e. on-site project management, job trailer, etc.) and $54,012 in
Construction Supervision fees (i.e.contractor overhead and profit). These costs are
included in the currently estimated construction budget for the project of$737,000,
This construction budget excludes architectural and engineering fees, owner's
representative services and any project contingency funds.
The recommended project delivery method, in the opinion of staff, fits the Visitors
Center project extremely well. Rather than awaiting the uncertain outcome of
selecting a general contractor through the traditional design-bid-build process,
encouraging the architect and a construction expert to work together from inception
can save both time and money and result in a higher equality project. The use of a
Construction Manager provides greater control over the entire process, and when
properly implemented, construction management is not an added cost to the project
because you use either a General Contractor or a Construction Manager, not both.
In addition to allowing the construction to be phased, the construction work is
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competitively bid at the trade contractor level (i.e. grading, site concrete,
landscaping, tenant improvements, etc.) and the City holds each of the individual
contracts. The Construction Manager is responsible to the City for managing and
coordinating the contracts to the City's cost, schedule and quality requirements.
Although the Construction Manager is responsible for managing and coordinating
the individual trade contracts, the Construction Manager remains on the owner's
side of the table in a professional services relationship. Use of this project approach
resulted in the downtown parking garage being completed on time and on budget.
In summary, it combines the advantage of identifying possible cost-saving measures
during pre-construction, and on-site advocacy of the owner's interests during
construction, with the competitive cost advantage of open bidding by trade.
Funds for this contract would be provided from the general fund balance with the
possibility of reimbursement from bond proceeds associated with the convention
center expansion.
6Dire
S. YMOND HAROLD E. GOOD
or o Cp munity Director of Procurement
nomic Development & Contracting
APPROVED: F��
City Manager
ATTACHMENTS:
1. Preferred Schematic Design Site Plan
2. Contract for Construction Management Services
3. Minute Order
4. Budget Resolution
REVIEWED BY DEPT. OF FINANCE
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CITY OF PALM SPRINGS
CONTRACT SERVICE AGREEMENT
THIS CONTRACT SERVICES AGREEMENT(herein "Agreement"), is made and entered
into this day of , 2003, by and between the CITY OF PALM SPRINGS,
a municipal corporation, (herein "City") and O. W. JOHNSTON CONSTRUCTION, INC., (herein
"Construction Manager"). The term Construction Manager includes professionals performing in
a consulting capacity. The parties hereto agree as follows:
1.0 SERVICES OF Construction Manager
1.1 Scope of Services. In compliance with all terms and conditions of this
Agreement, the Construction Manager shall provide those services specified in the "Scope of
Services"attached hereto as Exhibit"A"and incorporated herein by this reference,which services
may be referred to herein as the"services"or"work"hereunder. As a material inducement to the
City entering into this Agreement, Construction Manager represents and warrants that
Construction Manager is a provider of first class work and services and Construction Manager is
experienced in performing the work and services contemplated herein and, in light of such status
and experience, Construction Manager covenants that it shall follow the highest professional
standards in performing the work and services required hereunder and that all materials will be
of good quality,fit for the purpose intended. For purposes of this Agreement,the phrase"highest
professional standards"shall mean those standards of practice recognized by one or more first-
class firms performing similar work under similar circumstances.
1.2 Construction Manager's Proposal. The Scope of Service shall include the
Construction Manager's proposal or bid which shall be incorporated herein by this reference as
though fully set forth herein. In the event of any inconsistency between the terms of such
proposal and this Agreement, the terms of this Agreement shall govern.
1.3 Compliance with Law. All services rendered hereunder shall be provided
in accordance with all ordinances, resolutions, statutes, rules and regulations of the City and any
Federal, State or local governmental agency having jurisdiction in effect at the time service is
rendered.
1.4 Licenses, Permits. Fees and Assessments. Construction Manager shall
obtain at its sole cost and expense such licenses, permits and approvals as may be required by
law for the performance of the services required by this Agreement. Construction Manager shall
have the sole obligation to pay for any fees,assessments and taxes,plus applicable penalties and
interest, which may be imposed by law and arise from or are necessary for the Construction
Manager's performance of the services required by this Agreement, and shall indemnify, defend
and hold harmless City against any such fees, assessments, taxes, penalties or interest levied,
assessed or imposed against City hereunder.
1.5 Familiarity with Work. By executing this Contract, Construction Manager
warrants that Construction Manager(a)has thoroughly investigated and considered the scope of
services to be performed, (b)has carefully considered how the services should be performed and
(c)fully understands the facilities,difficulties and restrictions attending performance of the services
under this Agreement. If the services involve work upon any site, Construction Manager warrants
that Construction Manager has, or will, investigate the site and is or will be fully acquainted with
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the conditions there existing, prior to commencement of services hereunder. Should the
Construction Manager discover any latent or unknown conditions, which will materially affect the
performance of the services hereunder, Construction Manager shall immediately inform the City
of such fact and shall not proceed except at Construction Manager's risk until written instructions
are received from the Contract Officer.
1.6 Care of Work. The Construction Manager shall adopt reasonable methods
during the life of the Agreement to furnish continuous protection to the work, and the equipment,
materials, papers, documents, plans, studies and/or other components thereof to prevent losses
or damages, and shall be responsible for all such damages, to persons or property, until
acceptance of the work by City, except such losses or damages as may be caused by City's own
negligence.
1.7 Further Responsibilities of Parties. Both parties agree to use reasonable
care and diligence to perform their respective obligations under this Agreement. Both parties
agree to act in good faith to execute all instruments, prepare all documents and take all actions
as may be reasonably necessary to carry out the purposes of this Agreement. Unless hereafter
specified, neither party shall be responsible for the service of the other.
1.8 Additional Services. City shall have the right at any time during the
performance of the services,without invalidating this Agreement, to order extra work beyond that
specified in the Scope of Services or make changes by altering, adding to or deducting from said
work. No such extra work may be undertaken unless a written order is first given by the Contract
Officer to the Construction Manager, incorporating therein any adjustment in(i)the Contract Sum,
and/or (ii)the time to perform this Agreement, which said adjustments are subject to the written
approval of the Construction Manager. Any increase in compensation of up to five percent(5%)
of the Contract Sum or$25,000;whichever is less, or in the time to perform of up to one hundred
eighty (180) days may be approved by the Contract Officer. Any greater increases, taken either
separately or cumulatively must be approved by the City Council. It is expressly understood by
Construction Manager that the provisions of this Section shall not apply to services specifically
set forth in the Scope of Services or reasonably contemplated therein. Construction Manager
hereby acknowledges that it accepts the risk that the services to be provided pursuant to the
Scope of Services may be more costly or time consuming than Construction Manager anticipates
and that Construction Manager shall not be entitled to additional compensation therefore.
1.9 Special Requirements. Additional terms and conditions of this Agreement,
if any, which are made a part hereof are set forth in the"Special Requirements" attached hereto
as Exhibit"B" and incorporated herein by this reference. In the event of a conflict between the
provisions of Exhibit"B"and any other provisions of this Agreement, the provisions in Exhibit"B"
shall govern.
2.0 COMPENSATION
2.1 Contract Sum. For the services rendered pursuant to this Agreement, the
Construction Managershall be compensated in accordancewith the"Schedule of Compensation"
attached hereto as Exhibit"C" and incorporated herein by this reference, but not exceeding the
maximum contract amount of One Hundred Thirty Six Thousand Three Hundred Seventy-Eight
Dollars ($136,378.00) (herein "Contract Sum"), except as provided in Section 1.8. The method
of compensation may include(i)a lump sum payment upon completion,(ii)payment in accordance
with the percentage of completion of the services, (iii)payment for time and materials based upon
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the Construction Manager's rates as specified in the Schedule of Compensation, but not
exceeding the Contract Sum or(iv) such other methods as may be specified in the Schedule of
Compensation. Compensation may include reimbursement for actual and necessary expenditures
for reproduction costs, telephone expense, transportation expense approved by the Contract
Officer in advance,and no other expenses and only if specified in the Schedule of Compensation.
The Contract Sum shall include the attendance of Construction Manager at all project meetings
reasonably deemed necessary by the City; Construction Manager shall not be entitled to any
additional compensation for attending said meetings.
2.2 Method of Payment. Unless some other method of payment is specified in
the Schedule of Compensation, in any month in which Construction Manager wishes to receive
payment,no laterthan the first(1$)working day of such month,Construction Managershall submit
to the City in the form approved by the City's Director of Finance,an invoice for services rendered
prior to the date of the invoice. Except as provided in Section 7.3, City shall pay Construction
Manager for all expenses stated thereon which are approved by City pursuant to this Agreement
no later than the last working day of the month.
3.0 PERFORMANCE SCHEDULE
3.1 Time of Essence. Time is of the essence in the performance of this
Agreement.
3.2 Schedule of Performance. Construction Manager shall commence the
services pursuant to this Agreement upon receipt of a written notice to proceed and shall perform
all services within the time period(s)established in the"Schedule of Performance"attached hereto
as Exhibit "D", if any, and incorporated herein by this reference. When requested by the
Construction Manager,extensions to the time period(s)specified in the Schedule of Performance
may be approved in writing by the Contract Officer but not exceeding one hundred eighty (180)
days cumulatively.
3.3 ForceMaieure. The time period(s)specified in the Schedule of Performance
for performance of the services rendered pursuant to this Agreement shall be extended because
of any delays due to unforeseeable causes beyond the control and without the fault or negligence
of the Construction Manager, including, but not restricted to, acts of God or of the public enemy,
unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots,
strikes,freight embargoes,wars, litigation, and/or acts of any governmental agency, including the
City, if the Construction Manager shall within ten (10) days of the commencement of such delay
notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall
ascertain the facts and the extent of delay, and extend the time for performing the services for the
period of the enforced delay when and if in the judgment of the Contract Officer such delay is
justified. The Contract Officer's determination shall be final and conclusive upon the parties to this
Agreement. In no event shall Construction Manager be entitled to recover damages against the
City forany delay in the performance of this Agreement,however caused,Construction Manager's
sole remedy being extension of the Agreement pursuant to this Section.
3.4 Term. Unless earlier terminated in accordance with Section 7.8 of this
Agreement, this Agreement shall continue in full force and effect until completion of the services
but not exceeding one(1)year from the date hereof,except as otherwise provided in the Schedule
of Performance (Exhibit"D").
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4.0 COORDINATION OF WORK
4.1 Reoresentative of Construction Manager. The following principals of
Construction Manager are hereby designated as being the principals and representatives of
Construction Manager authorized to act in its behalf with respect to the work specified herein and
make all decisions in connection therewith:
David W. Johnston, President
It is expressly understood that the experience, knowledge, capability and reputation of the
foregoing principals were a substantial inducement for City to enter into this Agreement.
Therefore, the foregoing principals shall be responsible during the term of this Agreement for
directing all activities of Construction Manager and devoting sufficient time to personally supervise
the services hereunder. For purposes of this Agreement, the foregoing principals may not be
replaced nor may their responsibilities be substantially reduced by Construction Manager without
the express written approval of City.
4.2 Contract Officer. The Contract Officer shall be such person as may be
designated by the City Manager of City. It shall be the Construction Manager's responsibility to
assure that the Contract Officer is kept informed of the progress of the performance of the
services and the Construction Manager shall refer any decisions which must be made by City to
the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder
shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign
all documents on behalf of the City required hereunder to carry out the terms of this Agreement.
4.3 Prohibition Against Subcontracting or Assignment. The experience,
knowledge, capability and reputation of Construction Manager, its principals and employees were
a substantial inducement for the City to enter into this Agreement. Therefore, Construction
Manager shall not contract with any other entity to perform in whole or in part the services required
hereunder without the express written approval of the City. In addition, neither this Agreement nor
any interest herein may be transferred, assigned, conveyed, hypothecated or encumbered
voluntarily or by operation of law,whether for the benefit of creditors or otherwise,without the prior
written approval of City. Transfers restricted hereunder shall include the transfer to any person
or group of persons acting in concert of more than twenty five percent (25%) of the present
ownership and/or control of Construction Manager, taking all transfers into account on a
cumulative basis. In the event of any such unapproved transfer, including any bankruptcy
proceeding, this Agreement shall be void. No approved transfer shall release the Construction
Manager or any surety of Construction Manager of any liability hereunder without the express
consent of City.
The City's policy is to encourage the awarding of subcontracts to persons or entities with
offices located within the jurisdictional boundaries of the City of Palm Springs and, if none are
available, to persons or entities with offices located in the Coachella `Galley ("Local
Subcontractors"). Construction Manager hereby agrees to use good faith efforts to award
subcontracts to Local Subcontractors, if Local Subcontractors are qualified to perform the work
required. In requesting for the City to consent to a subcontract with a person or entity that is not
a Local Subcontractor,the Construction Manager shall submit evidence to the City that such good
faith efforts have been made or that no Local Subcontractors are qualified to perform the work.
Said good faith efforts may be evidenced by placing advertisements inviting proposals or by
sending requests for proposals to selected Local Subcontractors. The City may consider 'x)
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Construction Manager's efforts in determining whether it will consent to a particular subcontractor.
Construction Manager shall keep evidence of such good faith efforts and copies of all contracts
and subcontracts hereunder for the period specified in Section 6.2.
4.4 Independent Contractor. Neither the City nor any of its employees shall
have any control over the manner, mode or means by which Construction Manager, its agents or
employees, perform the services required herein,except as otherwise set forth herein. City shall
have no voice in the selection, discharge, supervision or control of Construction Manager's
employees, servants, representatives or agents, or in fixing their number, compensation or hours
of service. Construction Manager shall perform all services required herein as an independent
contractor of City and shall remain at all times as to City a wholly independent contractor with only
such obligations as are consistent with that role. Construction Manager shall not at any time or
in any manner represent that it or any of its agents or employees are agents or employees of City.
City shall not in any way or for any purpose become or be deemed to be a partner of Construction
Manager in its business or otherwise or a joint venturer or a member of any joint enterprise with
Construction Manager.
5.0 INSURANCE, INDEMNIFICATION AND BONDS
5.1 Insurance. The Construction Manager shall procure and maintain, at its
sole cost and expense, in a form and content satisfactory to City, during the entire term of this
Agreement including any extension thereof, the following policies of insurance:
(a) Commercial General Liability Insurance. A policy of commercial general
liability insurance written on a per occurrence basis with a combined single limit of at least
$1,000,000 bodily injury and property damage including coverages for contractual liability,
personal injury, independent contractors, broad form property damage, products and
completed operations.The Commercial General Liability Policy shall name the City of Palm
Springs as additional insured in accordance with standard ISO additional insured
endorsement form CG2010(1185) or equivalent language.
(b) Worker's Compensation Insurance. A policy of worker's compensation
insurance in an amount which fully complies with the statutory requirements of the State of
California and which includes $1,000,000 employer's liability.
(c) Business Automobile Insurance. A policy of business automobile liability
insurance written on a per occurrence basis with a single limit liability in the amount of
$1,000,000 bodily and property damage. Said policy shall include coverage for owned,non-
owned, leased and hired cars.
(d)Additional Insurance.Additional limits and coverages, which may include
professional liability insurance, will be specified in Exhibit"B".
All of the above policies of insurance shall be primary insurance and issued by companies
whose rating satisfies the requirements in Section 5.4 of this agreement. The insurer shall waive
all rights of subrogation and contribution it may have against the City, its officers, employees and
agents, and their respective insurers. In the event any of said policies of insurance are canceled,
the Construction Manager shall, prior to the cancellation date, submit new evidence of insurance
in conformance with this Section 5.1 to the Contract Officer. No work or services under this
Agreement shall commence until the Construction Manager has provided the City with Certificates
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of Insurance, endorsements or appropriate insurance binders evidencing the above insurance
coverages and said Certificates of Insurance, endorsements, or binders are approved by the City.
The construction Manager agrees that the provisions of this Section 5.1 shall not be
construed as limiting in any way the extent to which the Construction Manager may be held
responsible for the payment of damages to any persons or property resulting from the Construction
Manager's activities or the activities of any person or person for which the Construction Manager
is otherwise responsible.
In the event the Construction Manager subcontracts any portion of the work in compliance
with Section 4.3 of this Agreement the contract between the Construction Manager and such
subcontractor shall require the subcontractor to maintain the same polices of insurance that the
Construction Manager is required to maintain pursuant to this Section.
5.2 Indemnification. Construction Manager agrees to indemnify the City, its
officers, agents and employees against, and will hold and save them, and each of them, harmless
from any and all actions, suits, claims, damages to persons or property, losses, costs, penalties,
obligations, errors, omissions or liabilities, (herein "claims or liabilities") that may be asserted or
claimed by any person, firm or entity arising out of or in connection with the negligent performance
of the work,operations oractivities of Construction Manager,its agents,employees,subcontractors,
or invitees, provided for herein, or arising from the negligent acts or omissions of Construction
Manager hereunder, or arising from Construction Manager's negligent performance of or failure to
perform any term, provision, covenant or condition of this Agreement, whether or not there is
concurrent passive or active negligence on the part of the City, its officers, agents or employees but
excluding such claims or liabilities arising from the sole negligence or willful misconduct of the City,
its officers, agents or employees, who are directly responsible to the City, and in connection
therewith:
(a) Construction Manager will defend any action or actions filed in
connection with
any of said claims or liabilities and will pay all costs and expenses, including legal costs and
attorneys' fees incurred in connection therewith;
(b) Construction Manager will promptly pay any judgment rendered
against the City, its officers,agents or employees for any such claims or liabilities arising out
of or in connection with the negligent performance of or failure to perform such work,
operations or activities of Construction Manager hereunder; and Construction Manager
agrees to save and hold the City, its officers, agents, and employees harmless therefrom;
(c) In the event the City, its officers, agents or employees are made a
party to any action or proceeding filed or prosecuted against Construction Managerfor such
damages or other,claims arising out of or in connection with the negligent performance of
or failure to perform the work, operation or activities of Construction Manager hereunder,
Construction Manager agrees to pay to the City, its officers, agents or employees, any and
all costs and expenses incurred by the City, its officers, agents or employees in such action
or proceeding, including but not limited to, legal costs and attorneys' fees.
5.3 Performance Bond. Concurrently with execution of this Agreement,
Construction Manager shall deliver to City a performance bond in the sum of the amount of this
Agreement, in the form provided by the City, which secures the faithful performance of this
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Agreement, unless such requirement is waived by the Contract Officer. The bond shall contain the
original, notarized signature of an authorized officer of the surety and affixed thereto shall be a
certified and current copy of his power of attorney. The bond shall be unconditional and remain in
force during the entire term of the Agreement and shall be null and void only if the Construction
Manager promptly and faithfully performs all terms and conditions of this Agreement.
5.4 Sufficiency of Insurer or Surety. Insurance or bonds required by this
Agreement shall be satisfactory only if issued by companies qualified to do business in California,
rated "A"or better in the most recent edition of Best`s Key Rating Guide or in the Federal Register,
unless such requirements are waived by the City Manager or designee of the City Manager due to
unique circumstances. In the event the City Manager determines that the work or services to be
performed under this Agreement create an increased or decreased risk of loss to the City, the
Construction Manager agreesthatthe minimum limits of the insurance policies and the performance
bond required by this Section 5 may be changed accordingly upon receipt of written notice from the
City Manager or designee; provided that the Construction Manager shall have the right to appeal
a determination of increased coverage by the City Manager to the City Council of City within ten (10)
days of receipt of notice from the City Manager.
6.0 REPORTS AND RECORDS
6.1 Reports. Construction Manager shall periodically prepare and submit to the
Contract Officer such reports concerning the performance of the services required by this
Agreement as the Contract Officer shall require. Construction Manager hereby acknowledges that
the City is greatly concerned about the cost of work and services to be performed pursuant to this
Agreement. For this reason, Construction Manager agrees that if Construction Manager becomes
aware of any facts, circumstances, techniques, or events that may or will materially increase or
decrease the cost of the work or services contemplated herein or, if Construction Manager is
providing design services, the cost of the project being designed, Construction Manager shall
promptly notify the Contract Officer of said fact,circumstance,technique or event and the estimated
increased or decreased cost related thereto and, if Construction Manager is providing design
services, the estimated increased or decreased cost estimate for the project being designed.
6.2 Records. Construction Manager shall keep, and require subcontractors to
keep, such books and records as shall be necessary to perform the services required by this
Agreement and enable the Contract Officer to evaluate the performance of such services. The
Contract Officer shall have full and free access to such books and records at all times during normal
business hours of City, including the right to inspect, copy, audit and make records and transcripts
from such records. Such records shall be maintained for a period of three (3) years following
completion of the services hereunder, and the City shall have access to such records in the event
any audit is required
6.3 Ownership of Documents. All drawings, specifications, reports, records,
documents and other materials prepared by Construction Manager, its employees, subcontractors
and agents in the performance of this Agreement shall be the property of City and shall be delivered
to City upon request of the Contract Officer or upon the termination of this Agreement. Construction
Manager shall have no claim for further employment or additional compensation as a result of the
exercise by City of its full rights of ownership of the documents and materials hereunder. Any use
of such completed documents for other projects and/or use of uncompleted documents without
specific written authorization by the Construction Manager will be at the City's sole risk and without
liability to Construction Manager, and the City shall indemnify the Construction Manager for all
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damages resulting therefrom. Construction Manager may retain copies of such documents for its
own use. Construction Manager shall have an unrestricted right to use the concepts embodied
therein. All subcontractors shall provide for assignment to City any documents or materials
prepared by them, and in the event Construction Manager fails to secure such assignment,
Construction Manager shall indemnify City for all damages resulting therefrom.
6.4 Release of Documents. The drawings, specifications, reports, records,
documents and other materials prepared by Construction Manager in the performance of services
underthis Agreement shall not be released publiclywithout the priorwritten approval of the Contract
Officer.
7.0 ENFORCEMENT OF AGREEMENT
7.1 California Law. This Agreement shall be construed and interpreted both as
to validity and to performance of the parties in accordance with the laws of the State of California.
Legal actions concerning any dispute,claim or matter arising out of or in relation to this Agreement
shall be instituted in the Superior Court of the County of Riverside, State of California, or any other
appropriate court in such county. Construction Manager covenants and agrees to submit to the
personal jurisdiction of such court in the event of such action.
7.2 Disputes. In the event of any dispute arising under this Agreement,the injured
party shall notify the injuring party, in writing, of its contentions by submitting a claim therefor. The
injured party shall continue performing its obligations hereunder so long as the injuring party
commences to cure such default within ten (10) days of service of such notice and completes the
cure of such default within forty-five (45) days after service of the notice, or such longer period as
may be permitted by the injured party; provided that if the default is an immediate danger to the
health,safety and general welfare,such immediate action may be necessary. Compliance with the
provisions of this Section shall be a condition precedent to termination of this Agreement for cause
and to any legal action, and such compliance shall not be a waiver of any party's right to take legal
action in the event that the dispute is not cured, provided that nothing herein shall limit City's or the
Construction Manager's right to terminate this Agreement without cause pursuant to Section 7.8.
7.3 Retention of Funds. Construction Manager hereby authorizes City to deduct
from any amount payable to Construction Manager (whether or not arising out of this Agreement)
(i) any amounts the payment of which may be in dispute hereunder or which are necessary to
compensate City for any losses, costs, liabilities, or damages suffered by City, and (ii) all amounts
for which City may be liable to third parties, by reason of Construction Manager's acts or omissions
in performing or failing to perform Construction Manager's obligation under this Agreement. In the
event that any claim is made by a third party, the amount or validity of which is disputed by
Construction Manager,or any indebtedness shall exist which shall appearto be the basis fora claim
of lien, City may withhold from any payment due, without liability for interest because of such
withholding, an amount sufficient to cover such claim. The failure of City to exercise such right to
deduct or to withhold shall not, however, affect the obligations of the Construction Manager to
insure, indemnify, and protect City as elsewhere provided herein.
7.4 Waiver. No delay or omission in the exercise of any right or remedy by a non-
defaulting party on any default shall impair such right or remedy or be construed as a waiver. A
patty's consent to or approval of any act by the other party requiring the party's consent or approval
shall not be deemed to waive or render unnecessary the other party's consent to or approval of any
subsequent act. Any waiver by either party of any default must be in writing and shall not be a
H:WSEWCurtisMisitors CenterlWP DWJ Contract 04-23-03.wpd
waiver of any other default concerning the same or any other provision of this Agreement.
7.5 Rights and Remedies are Cumulative. Except with respect to rights and
remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the
parties are cumulative and the exercise by either party of one or more of such rights or remedies
shall not preclude the exercise by it, at the same or different times, of any other rights or remedies
for the same default or any other default by the other party.
7.6 LegalAction. In addition to any other rights or remedies,either party may take
legal action, in law or in equity,to cure, correct or remedy any default, to recover damages for any
default,to compel specific performance of this Agreement,to obtain declaratory or injunctive relief,
or to obtain any other remedy consistent with the purposes of this Agreement.
7.7 Liquidated Damages. Since the determination of actual damages for any
delay in performance of this Agreement would be extremely difficult or impractical to determine in
the event of a breach of this Agreement, the Construction Manager and its sureties shall be liable
for and shall pay to the City the sum of zero dollars ($-0-) as liquidated damages for each working
day of delay in the performance of any service required hereunder, as specified in the Schedule of
Performance(Exhibit"ID"). The City may withhold from any monies payable on account of services
performed by the Construction Manager any accrued liquidated damages.
7.8 Termination Prior to Expiration Of Term. This Section shall govern any
termination of this Agreement except as specifically provided in the following Section for termination
for cause. The City reserves the right to terminate this Agreement at any time, with or without
cause, upon thirty(30)days written notice to Construction Manager, except that where termination
is due to the fault of the Construction Manager, the period of notice may be such shorter time as
may be determined by the Contract Officer. In addition,the Construction Manager reserves the right
to terminate this Agreement at any time, with or without cause, upon sixty (60) days written notice
to City,except that where termination is due to the fault of the City,the period of notice may be such
shorter time as the Construction Manager may determine. Upon receipt of any notice of termination,
Construction Manager shall immediately cease all services hereunder except as may be specifically
approved by the Contract Officer. Except where the Construction Manager has initiated termination,
the Construction Manager shall be entitled to compensation for all services rendered prior to the
effective date of the notice of termination and for any services authorized by the Contract Officer
thereafter in accordance with the Schedule of Compensation or as may be approved by the Contract
Officer, except as provided in Section 7.3. In the event the Construction Manager has initiated
termination, the Construction Manager shall be entitled to compensation only for the reasonable
value of the work product actually produced hereunder. In the event of termination without cause
pursuant to this Section, the terminating party need not provide the non-terminating party with the
opportunity to cure pursuant to Section 7.2.
7.9 Termination for Default of Construction Manager. If termination is due to the
failure of the Construction Manager to fulfill its obligations under this Agreement, City may, after
compliance with the provisions of Section 7.2, take over the work and prosecute the same to
completion by contract or otherwise, and the Construction Manager shall be liable to the extent that
the total cost for completion of the services required hereunder exceeds the compensation herein
stipulated (provided that the City shall use reasonable efforts to mitigate such damages), and City
may withhold any payments to the Construction Manager for the purpose of set-off or partial
payment of the amounts owed the City as previously stated.
H:\USER$\CurtisWWisitors Center\WP DWd Contract 04-23-03.wpd /L��
7.10 Attorneys' Fees. If either party to this Agreement is required to initiate or
defend or made a party to any action or proceeding in any way connected with this Agreement,the
prevailing party in such action or proceeding, in addition to any other relief which may be granted,
whether legal or equitable, shall be entitled to reasonable attorney's fees. Attorney's fees shall
include attorney's fees on any appeal, and in addition a party entitled to attorney's fees shall be
entitled to all other reasonable costs for investigating such action,taking depositions and discovery
and all other necessary costs the court allows which are incurred in such litigation. All such fees
shall be deemed to have accrued on commencement of such action and shall be enforceable
whether or not such action is prosecuted to judgment.
8.0 CITY OFFICERS AND EMPLOYEES; NON-DISCRIMINATION
8.1 NonAiability of City Officers and Employees. No officer or employee of the
City shall be personally liable to the Construction Manager,or any successor in interest, in the event
of any default or breach by the City or for any amount which may become due to the Construction
Manager or to its successor, or for breach of any obligation of the terms of this Agreement.
8.2 Conflict of Interest. No officer or employee of the City shall have any financial
interest,direct or indirect, in this Agreement nor shall any such officer or employee participate in any
decision relating to the Agreement which effects his financial interest or the financial interest of any
corporation, partnership or association in which he is, directly or indirectly, interested, in violation
of any State statute or regulation. The Construction Manager warrants that it has not paid or given
and will not pay or give any third party any money or other consideration for obtaining this
Agreement.
8.3 Covenant Against Discrimination. Construction Manager covenants that, by
and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that
there shall be no discrimination against or segregation of, any person or group of persons on
account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the
performance of this Agreement, Construction Manager shall take affirmative action to insure that
applicants are employed and that employees are treated during employment without regard to their
race, color, creed, religion, sex, marital status, national origin, or ancestry.
9.0 MISCELLANEOUS PROVISIONS
9.1 Notice. Any notice, demand, request, document, consent, approval, or
communication either party desires or is required to give to the other party or any other person shall
be in writing and either served personally or sent by prepaid, first-class mail, in the case of the City,
to the City Manager and to the attention of the Contract Officer,CITY OF PALM SPRINGS, P.O. Box
2743, Palm Springs, California 92263. In the case of the Construction Manager, it should be
addressed to the person at the address designated on the execution page of this Agreement.
Either party may change its address by notifying the other party of the change of address in writing.
Notice shall be deemed communicated at the time personally delivered or in seventy-two(72)hours
from the time of mailing if mailed as provided in this Section.
9.2 Interpretation. The terms of this Agreement shall be construed in accordance
with the meaning of the language used and shall not be construed for or against either party by
reason of the authorship of this Agreement or any other rule of construction which might otherwise
apply.
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_10- I"
9.3 Integration;Amendment. It is understood that there are no oral agreements
between the parties hereto affecting this Agreement and this Agreement supersedes and cancels
any and all previous negotiations, arrangements,agreements and understandings, if any,between
the parties, and none shall be used to interpret this Agreement. This Agreement may be amended
at any time by the mutual consent of the parties by an instrument in writing.
9.4 Severability. In the event that any one or more of the phrases, sentences,
clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or
unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or
unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or
sections of this Agreement which are hereby declared as severable and shall be interpreted to carry
out the intent of the parties hereunder unless the invalid provision is so material that its invalidity
deprives either party of the basic benefit of their bargain or renders this Agreement meaningless.
9.5 Corporate Authority. The persons executing this Agreement on behalf of the
parties hereto warrant that(i)such party is duly organized and existing, (ii)they are duly authorized
to execute and deliver this Agreement on behalf of said party, (iii) by so executing this Agreement,
such party is formally bound to the provisions of this Agreement, and (iv) the entering into this
Agreement does not violate any provision of any other Agreement to which said party is bound.
(Signatures on next page)
HAUSERS\CurtisMisitors Center\WP CWJ Contract 04-23-03.wpd
-11- a
IN WITNESS WHEREOF,the parties have executed and entered into this Agreement as of the date
first written above.
CITY OF PALM SPRINGS
ATTEST: a municipal corporation
By: By:
City Clerk City Manager
APPROVED AS TO FORM:
By:
City Attorney
Construction Manager: Check one:_Individual_Partnership_Corporation
Corporations require two notarized signatures: One signature must be from the Chairman of Board,President,or any Vice President.The
second signature must be from the Secretary,Assistant Secretary,Treasurer,Assistant Treasurer,or Chief Financial Officer).
By: By:
Notarized Signature of Chairman of Board, Notarized Signature Secretary, Asst Secretary,
President or any Vice President Treasurer, Asst treasurer or Chief Financial Officer
Name: Name:
Title: _ Title:_.
State of_ State of _I
County of Iss County of ^Iss
On before me, On before me,
personally appeared personally appeared
personally known to me (or proved to me on the basis of personally known to me (or proved to me on the basis of
satisfactory evidence)to be the person(s) whose name(s)is/are satisfactory evidence)to be the person(s)whose name(s)is/are
subscribed to the within instrument and acknowledged to me that subscribed to the within instrument and acknowledged to me that
helshellhey executed the same in his/her/their authorized he/shelthey executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signatures) on the capacily(ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the instrument the person(s), or the entity upon behalf of which the
person(s)acted,executed the instrument. person(s)acted,executed the instrument.
WITNESS my hand and official seal. WITNESS my hand and official seal.
Notary Notary
Signature: Signature:
Notary Seal: Notary Seal:
� I �
EXHIBIT"A"
SCOPE OF SERVICES
Construction Managershall provide Construction Management Servicesforthe New Visitors
Center in four phases: Phase I - Planning/Design; Phase II - Pre-bid/Bid; Phase III - Construction
Phase; and Phase IV - Post-Construction. Specific scope for each of the phases is itemized as
follows:
Phase I - Planning/Design
a. Prepare for the City's approval a Management Plan which will establish the general
basis for the sequence of contracting for construction of the Project.
b. Evaluate the local construction market,the City's resources,the City's schedule and
budget goals of the Project, develop various alternative approaches, and make
recommendations to the City.
C. Provide scheduling/monitoring of all Project activities as required until working
drawings are submitted for plan check and shall reprot same to Project Administrator
(PA).
d. Maintain/update the Project budget monthly as decisions by PA are implemented.
e. Prepare cost studies on competing design solutions/elements as directed by PA.
f. Conduct value engineering studies on elements of the design as directed by PA.
g. Complete a constructability review on working drawings.
h. Develop preliminary construction phase schedule.
i. Prepare a cash flow chart for the Project's duration.
Phase 11 - Pre-bid/Bid
a. Master Project Schedule - Construction Manager shall develop a Master Project
Schedule that will contain key milestones to be accomplished by the Project
participants,including a schedule of theArchitect's and Consultant's design activities.
b. Project Budget-To assist the Project architect, Construction Manager shall provide
a plan and budget for all items that will be required for the Project. These include
such things as reproduction of the drawings and specifications for bidding, various
other office and administrative costs and the cost for required services at the site.
Construction Manager shall review the Program of Requirements, the City's
scheduled goals and existing budget data.
C. Upon PA's request, Construction Manager shall make a report of the budget to the
City indicating: 1) shortfalls or surpluses in the budget, and 2) recommendations for
cost reductions and value engineering.
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d. Cost Management Procedures-ConstructionManagershallimplementandmaintain
cost management procedures throughout the pre-construction phase. When
changes are made and approved by the City, these changes can be recorded and
the cost effect can be documented.
e. Project Management Review-Construction Manager shall provide input to the City
and Architect relative to value, sequencing of construction phases, means and
methods, duration of construction of various building methods, and constructability.
f. Coordination Review-Construction Managershall review the Architect 50%and 90%
Contract Document submissions and provide written comments on the coordination
of the various disciplines, including civil, structural, architectural, mechanical,
electrical, plumbing and landscape.
g. Cost Adjustment Sessions - Should significant variance be detected in the 50% or
90% Construction Document Estimates, Construction Manager shall conduct cost
adjustment sessions with the Architect and the City. At the conclusion of these
sessions, Construction Manager, in conjunction with the City, shall request
commitments from the Architect for design adjustments to the documents in an effort
to maintain the project budget.
h. Conditions of Construction - Construction Manager shall advise the City as to the
form and content of the invitation to bid and the form of Proposal for each trade
contract for construction, Construction Manager shall submit the General Conditions
to the Architect and make suggestions for their inclusion into the Construction
Documents.
i. Management of Bidding Process-Construction Manager shall assist the City in the
overall bidding process. The four proposed steps are as follows:
1. Bidding Procedures: In cooperation with the Architect and the City's
Procurement Office, Construction Manager shall develop and expedite
bidding procedures for bid document issuances, bidder tracking and receipt
of proposals.
2. Generate Bidder Interest: Construction Manager shall maintain contact with
potential bidders on a regular basis throughout the bid period. A telephone
campaign shall be conducted to stimulate and maintain interest in bidding on
the project.
3. Bid Advertisements: Construction Manager shall assist the City and the
Architect in preparing and placing notices and advertisements to solicit bids
on the Project.
4. Prepare and Expedite Bid Document Delivery. In conjunction with the City
and Architect, Construction Manager shall coordinate and expedite the
preparation and delivery of Bid Document and addenda to the bidders that
may include:
- Prepare summaries of work Bid Packages.
H:\USERS1CurtisW\Visitors CanterlWP CWJ Contract 04-23-03.wpd
-Arrange to secure documents from Architect
-Arrange for printing, bidding, and wrapping
-Arrange for delivery to bidders.
- Follow up calls to bidders
j. Pre-Bid Conference(s) - In conjunction with the City and Architect, Construction
Manager shall assist with pre-bid conferences. These conferences will be a forum
for the City,Construction Manager and Architect to present the project requirements
to the bidders, including pre-qualification requirements as appropriate.
k. Coordination and Inquiries-Construction Manager shall coordinate communications
related to Bidder inquiries and seek resolution from the appropriate parry and provide
timely forwarding of such information to the bidders.
I. Addenda Review-Construction Manager shall provide a review of each addendum
during the Bid Phase for time, cost, or constructability impact, and make appropriate
comments or recommendations.
M. Bid Evaluation-Construction Manager shall assist the City in pre-qualifications,the
bid opening, evaluation of the bids for completeness,full responsiveness and price,
including alternate prices and unit prices, and shall make a formal report tot the City
with regard to the potential award of trade contracts.
n. Construction Contracts) - Construction Manager shall assist the City in the
preparation of the trade construction contracts.
1. Prepare a detailed estimate at the conclusion of the design work. "Detailed"
shall be defined as no less than ten (10) trade areas.
2. Construction Manager shall prepare a Project Procedure Manual subject to
PA's review and approval and based upon City Standard Construction
Management Procedures. Copies of manual shall be provided to trade
contractors.
3. Shall conduct a final review of bid documents for completeness and accuracy
once plan check corrections are made.
4. Shall assist PA and Director of Procurement&Contracting in the preparation
of "front end" documents for the bid packages. Said "Front Ends" shall be
based on City Standard Front End.
5. Shall develop bidding procedures in coordination with PA and City Director
of Procurement & Contracting.
6. Shall hold one information seminarfor local trade contractors concerning the
project and how to participate as a sub or a sub to a larger sub.
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H:\USERS\CurtisW\Visitors CenlerlW P D W J Contract 04-23-03.wpd
7. Shall conduct pre-bid conferences as directed by PA.
8. Shall receive, tabulate and analyze trade contractor bids.
9. Shall make recommendations for trade contractor bid awards.
10. Shall assist PA in negotiating sole source contracts in coordination with the
Director of Procurement & Contracting.
11. Shall assemble and prepare contracts and related docuemnts forCity review
and execution.
o. Public Relations Activities-Construction Manager shall assist the City and Architect
in public relations activities including preparation of th Project information, and
attendance at all internal and public meetings, as required, including the site
meetings and City Committee meetings as required by the City.
Phase III-Construction
Services provided in association with Construction Management activities that relate to the
trad contractors commence between bid preparation and bid opening and continue forthirty-five(35)
calendar days beyond the final filing of the notice or notices of completion. Construction Manager
will assist the City in resolving any conflicts with the trade contractors during any and all warrantee
periods that are provided by the trade contractors.
Construction Manager shall provide responsible reporting and documentation that starts prior
to the Construction Manager's preconstruction, conference, site construction services (general
conditions items including supervision and administration of the Project), conducting construction
progress meetings, providing progress reports, processing contractor's request for information
(RFI's), reviewing and recommending th approval or disapproval of change orders and payments
to the contract, maintaining record keeping to assist the City in negotiations, mediation or arbitration
of claims or disputes.
a. Preconstruction Conference(s)-Construction Manager shall conduct,in conjunction
with the City and the Architect, preconstruction orientation conferences for the
benefit of the successful trade contractors and can serve to orient the trade
contractors to the various reporting procedures and site rules prior tot he
commencement of actual construction.
b. Contract Administration-Construction Manager shall administer the trade contracts
as provided in the General Conditions of the trade contractors for construction.
C. Submittal Procedures - Construction Manager shall establilsh and implement
procedures for submittals, change orders, payment requests and other procedures;
and maintain logs, files, and other necessary documentation.
d. Job Site Meetings-Construction Manager shall coordinate regularjob-site progress
meetings with the prime contractor, and can distribute minutes to all meeting
attendees, the City, and all other appropriate parties.
e. Coordination of Technical Inspection and Testing - Construction Manager will
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H:IUSERS1CurtisW\Visitors CantnrlW P DW J Comma04-23-03.wpd
coordinate with the City's certified inspector all testing required by the Architect or
other third parties. All inspection reports can be provided to trade contractors on a
regular basis.
f. Construction Observation -Construction Manager shall observe the progress of the
work and advise the City of any deviations, defects or deficiencies observed in the
work. Construction Manager's observation duties shall include reasonable diligence
to discover work that is not in compliance with the Contract Documents. These
observations will not, however, cause Construction Manager to be responsible for
those duties and responsibilities that belong to the Architect,the City Inspector or the
trade Contractors. These include, but are not limited to , the Architect's obligations
to produce clear, accurate drawings and specifications and the trade contractors'
responsibilities for the techniques and sequences of construction and safety
precautions incidental thereto, and for performing the construction work in
accordance with the Contract Documents.
g. Non-Conforming Work-Construction Manager shall,in conjunction with the Architect
and Inspector, review trade contractor's recommendations for corrective action on
observed non-conforming work..Construction Managershall make recommendations
to the City, the Architect, and Inspector in instances where it observes work that, in
its opinion, is defective or not in conformance with the Contract Documents.
h. Exercise of Contract Prerogatives-When appropriate, Construction Manager shall
advise the City and make recommendations to the City for exercising the City's
contract prerogatives, such as giving the trade contractors notice to accelerate the
progress when the schedule goals are in jeopardy due to trade contractors,
withholding payment for cause and other prerogatives when required in an effort to
achieve contract compliance.
i. Master Construction Schedule-Construction Manager shall continue to update and
maintain the Master Construction Schedule and distribute the updated Master
Schedule to the City, Architect and other appropriate parties.
j. Monthly Contractor Payment - Construction Manager shall review and make
recommendations pertaining to monthly payments to the trade contractors.
k. Evaluate Proposal Cost-Construction Manager shall evaluate the trade contractors'
cost proposals and can make formal recommendations to the City regarding
acceptance of the proposals for any Change Orders as required.
I. Negotiation of Change Order Costs and Time Extensions - Construction Manager
shall assist the City and the Architect in negotiating Change Order costs and time
extensions.
M. Change Order Reports-Construction Manager shall prepare and distribute Change
Order reports on a monthly basis throughout the construction phase. The report shall
provide information pertaining to proposed and executed change orders and their
effect on the contract price as of the date of the report.
n. Trade Contractor Manager Schedule Claims-Construction Manager shall be given
copies of all notices of claims by Trade Contractors against the City for any alleged
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HAUSERSACurtisWlVisitors CenterlWP DWJ Contract 04-2M5.wpd 1 w 1Q'
cause. Construction Manager shall perform a preliminary review, if appropriate.
After an evaluation of the actual progress as observed by Construction Manager,
scheduled activities can be assigned percentage-complete values in conjunction with
the trade contractors, The report shall reflect actual progress as compared to
schedule progress noting variances (if any) as negative float. The report shall also
be the basis for determining implementation of certain City prerogatives concerning
progress of the project, when required.
o. Recovery Schedule- If requested by the City, Construction Manager shall assist the
trade contractor in preparing a Recovery Schedule, This Recovery Schedule can
reflect the corrective action and extraordinary efforts to be undertaken by the trade
contractor to recapture lost time. This Recovery Schedule will be distributed to the
trade contractors, the City, Architect and other appropriate parties.
P. Claims Analysis- If requested by the City, Construction Manager shall analyze the
claims for extension of time and shall prepare an impact evaluation report that can
reflect the actual impact to the schedule. The report can also provide a narrative
including a recommendation for action to the City.
q. Evaluate Claim Cost- If requested by the City, Construction Manager shall prepare
estimates based on the alleged cause of claims submitted by the trade contractors
and shall prepare alternate estimates based on varying scenarios of the claim cause.
These estimates can be transmitted to the City and can be used in claim rulings and
negotiations.
r. Trade Contractor Claim Negotiations-If requested by the City,Construction Manager
will negotiate claims with the trade contractor on behalf of the City. Construction
Manager shall make a recommendation to the City concerning settlement or other
appropriate action.
s. Construction Schedule - Upon the City's transmission of a Notice of Award to the
successful traded contractors, Construction Manager shall review the trade
contractor's development of its detailed construction schedule within the framework
of the submitted Preliminary Provisional Schedule. Construction Manager shall
distribute the Construction Schedule to the trade contractor, the City, the Architect
and other appropriate parties.
t. Schedule of Values - Construction Manager will review, with the Architect, for
compliance each Contract's Schedule of Values.
U. Final Completion -Construction Manager, in conjunction with the Architect and the
inspector, will at the conclusion of all corrective action of all punch list items, make
a final comprehensive review of the Project, make a report to the City which can
indicate whether Construction Manager and the Architect find the work performed
acceptable under the Contract Documents and the relevant project data, and make
recommendations as to final payment to the Trade Contractors and the notice of
completion.
V. Maintain full-time supervision of the work;"full-time"is defined as during all hours that
trade contractors are on the site.
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H:\USERSICurtisWlVisifor5 Center4WP DWJ Contract 04-23-03.wptl r7
W. Maintain field logs, reports and testing report files. Log entries shall be no more than
48 hours after said event.
X. Manage the submittal process as outlined in the Architect's Project Specifications.
Shall maintain on-site submittal log so PA may ascertain completeness of submittal
process.
y. Monitor contract compliance with all trade contractors. Non-compliance sahll be
reported to PA at weekly construction meetings with proposed corrective action.
Z. Verify that the trade contractors' safety programs are in accordance with the City's
safety program. The Construction Managerwill monitorthe implementation of each
trade contractor's safety program for the duration of the Project.
aa. Implement and document a quality control program, subject to review and approval
of PA, for the term of the construction project.
Phase IV- Post-Construction
a. Occupancy Permit - Construction Manager shall assist the City in obtaining the
occupancy permit. This task may encompass accompanying governmental officials
(Fire Marshall, Building Department, etc.)during inspections of the facility, assisting
in preparing and submitting proper documentation to the appropriate approving
agencies, assisting in final testing and other necessary and reasonable activities.
b. Final Project Report -At the conclusion of the project, Construction Manager shall
prepare final project accounting and close-out reports of all above indicated report
systems. These reports can summarize, for historical purposes, any items that are
not self-explanatory.
c. Coordinate correction of any remaining punch-list or defective work items.
d. Assist in the coordination for owner move-in.
e. Coordinate all testing,turnover and training activities required from the various trade
contractors and equipment suppliers.
f. Assemble all as-built documents,warranties and guarantees so received by thetrade
contractors and shall compile them in indexed notebooks.
g. Lead contract close-out activities in coordination with PA and Owner's Rep.
h. Assist PA in preparation for grand opening ceremony.
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H9U50RS4CurfisW\Visitors Cen[er\W P DW J Contract 04.23-93.wptl
EXHIBIT"B"
SPECIAL REQUIREMENTS
Section 1.8 Additional Services. The third sentence of this section is revised to read as
follows:Any increase in compensation of up to ten percent(10%) of the Contract Sum or$25,000;
whichever is less; or in the time to perform of up to one hundred eighty(180)days maybe approved
by the Contract Officer.
Section 2.0 Relationships. All construction contracts shall be between City and
contractors retained by City to perform services as part of the Project ("Trade Contractors"), and
shall be satisfactory to the Construction Manager and City as to terms and conditions. Nothing in
this Agreement is intended to create a contractual relationship between the Construction Manager
and any Trade Contractor or supplier of equipment or materials, nor shall any Trade Contractor be
construed as a third-party beneficiary of the services performed under this Agreement.
Section 3.1 Time of Essence. The following is added to this section: In executing this
Agreement,the Construction Manager understands that renovation and construction of the Visitors
Center is scheduled to commence during the month of June 2003 and that the intended date for
occupancy is no later than October 31, 2003. Construction Manager shall take appropriate actions
to timely complete the tasks provided under this Agreement and to influence other parties to timely
perform, but Construction Manager is not a guarantor of the timely performance by other parties.
Section 4.3 Prohibition Agaipst Subcontracting or Assignment. The second paragraph
of this section shall be reworded to read as follows:
The City's policy is to encourage the awarding of subcontracts to persons or entities with
offices located within the jurisdictional boundaries of the City of Palm Springs and, if none are
available,to persons or entities with offices located in the Coachella Valley. Construction Manager
shall keep evidence of such good faith efforts and copies of all contracts and subcontracts
hereunder for the period specified in Section 6.2.
Section 5.3 Performance Bond. Performance Bond requirement is waived.
Section 5.5 Builder's Risk Insurance, The City shall procure and maintain, at its sole
cost and expense, a Builder's Risk Insurance Policy written on a per occurrence basis in an amount
of$ at job site, excluding coverage for earthquake and flood damages. The Builder's
Risk Insurance Policy shall name the Construction Manager as an additional insured. In executing
this Agreement, the City expressly agrees to waive any and all subrogation claims against
Construction Manager for any and all items covered within said Builder's Risk Insurance Policy;
provided, however, that nothing herein shall be construed as a waiver of any and all of the terms
and conditions of insurance policies other than the Builder's Risk Policy, as set forth in Section 5.0
of the Agreement.
Section 9.6 Responsibility for Construction Means and Methods. Construction Manager
shall not be responsible for construction means, methods,techniques, sequences, and procedures
employed by Trade Contractors in the performance of their Contracts, and shall not be responsible
for the failure of any Trade Contractor to carry out work or services for the Project in accordance
with such Trade Contractors' contract with City; provided, however, that should the Construction
H1USEWCWI Visitors CenterlWP DWJ Contract 04-23-03.wpo
Manager discover any latent or unknown conditions, which will materially affect the performance of
the services hereunder,the Construction Manager shall immediately inform the City of such fact and
shall not proceed except at Construction Manager's risk until written instructions are received from
the Contract Officer.
Section 9.7 Construction Manager not an Architect/Engineer. City acknowledges that
Construction Manager is not an Architect or Engineer, nor is it responsible for any design of the
Project. City has caused these design professionals and their agents, employees, and
subcontractors to carry such professional liability insurance to address claims that may arise out of
the design professional's services.
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EXHIBIT "C"
SCHEDULE OF COMPENSATION
Terms of Compensation:The services provided under this Agreement shall be performed for a not
to exceed fee of One Hundred Thousand Thirty Six Thousand Three Hundred Seventy Eight Dollars
($136,378.00), as outlined in the General Conditions and Fee breakdown shown herein. The
monthly fee breakdown is as follows:
General Conditions Fee
A. Pre-Construction
April (% Month) $ 3,718 $ -0-
May $ 7,436 $ -0-
June $ 7,436 $ -0-
July $ 7,436 $ -0-
B. Construction and Contract Close-Out
August $18,780 $ 18,004
September $18,780 $ 18,004
October $18,780 $ 18,004
Sub-Totals (rounded to the nearest dollar) $ $82,366 $ 54,012
GRAND TOTAL $136,378
Compensation for the above sums shall be billed to the City on a monthly basis as outlined above
on a lump sum basis. The total sums billed by the Construction Manager to the City shall not
exceed One Hundred Thirty Six Thousand Three Hundred Seventy Eight Dollars ($136,378.00)
including reimbursable expenses (the Total Compensation). As provided in Exhibit "D", the
Schedule of Performance, Construction Manager shall further provide a status report to the City on
July 30, 2003, setting forth the Construction Manager's best estimate of the date of completion for
all Visitor Center Construction (the "Status Report"). In the event that the Status Report indicates
that construction cannot be reasonably completed by October 15, 2003,then the monthly payment
schedule above shall be adjusted, as agreed upon by the Construction Manager and City for the
remaining term of the Agreement to the date that Construction will be completed.
It is also mutually agreed by both parties that Construction Manager cannot control the actions of
the Trade Contractors for the work on the Visitors Center; provided, however, that Construction
Manager has an obligation to meet the overall performance date set fortth in this Agreement to
achieve completion of construction of the Visitors Center by October 15,2003 and that Construction
Manager shall perform in good faith to complete construction of the Visitors Center by this date(the
"Date of Completion"). Notwithstanding this Date of Completion, Construction Manager's Total
Compensation shall not be reduced if the Visitors Center is not entirely complete by the Date of
Completion.
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HAUSESWurtisWNisitors CenterVNP CWJ Contract 04-23-03.wpd A ��
EXHIBIT "D"
SCHEDULE OF PERFORMANCE
Items of Performance Time for Performance
A. Pre-Construction Services (Planning/Design; Pre-Bid/Bid)
1. Prepare Constructability As soon as possible after April 15, 2003; and
Review of Design Drawings ongoing through Project Completion
2. Prepare estimate of current design to As soon as possible after approval and ongoing
evaluate prospects for construction within through Project Completion
current budget; and, develop value
engineering solutions for Design Team's
review and approval if the Project is
potentially over budget.
3. Complete Master Project Schedule. On or Before April 30, 2003
4. Commence Solicitation and Pre- On or Before May 15, 2003, subject to availability
Qualification Process for Trade of required design drawings
Contractors
5. Assist the City in Bidding out Visitors On or Before May 22, 2003, subject to availability
Center trade packages and provide of required design drawings
recommendations for trade contract
awards
B. Construction Services (Construction)
1. Commence Construction Management July 1, 2003 until Completion
Services for Site Demolition, Utility
Relocation, and Construction of the New
Visitors Center Work
2. Provide Status Report to the City July 30, 2003
Setting Forth the Anticipated Date of Final
Completion
C. Contract Close Out (Post-Construction)
1. Manage the completion of all trade From September 15, 2003 until Completion but no
contracts and finalize all outstanding costs later than November 15, 2003
with trade contractors
2. Finalize record drawings, submittal From September 2003 until Completion but no
packages, and O&M Manuals to the City; later than November 15, 2003 or thirty-five(35)
finalize the completion of the project. days after filing notice of completion, whichever is
sooner.
3.Assist the City through the Trade Expiration of Warrantee Periods
Contractor Warrantee Periods
It is understood that the foregoing Schedule of Performance is subject to all of the terms and
conditions set forth in the text of the Agreement. The summary of the items of performance in this
Schedule of Performance is not intended to supersede of modify the more complete description in
the text. In the event of any conflict or inconsistency between this Schedule of Performance and
the text of the Agreement, the text shall govern.
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HAUSEWCurtisWNisitors CenterkWP DWJ Contract 04-23-03.wpd ��
MINUTE ORDER NO.
APPROVING A CONTRACT SERVICES AGREEMENT
WITH D. W. JOHNSTON CONSTRUCTION, INC. FOR
CONSTRUCTION MANAGEMENT SERVICES FOR NEW
VISITORS CENTER LOCATED AT 2901 NORTH PALM
CANYON DRIVE,THE FORMER TRAMWAY GAS STATION
I HEREBY CERTIFY that this Minute Order, approving a Contract Services Agreement for
Construction Management Services with D. W. Johnston Construction , Inc. for the City's
new Visitors Center at 2901 North Palm Canyon Drive, in an amount not to exceed
$136,378, in a form acceptable to the City Attorney, was approved by the City Council of
the City of Palm Springs, California, in a meeting thereof held on the 23" day of April 2003.
PATRICIA A. SANDERS
City Clerk
RESOLUTION NO.
OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS,
CALIFORNIA, AMENDING THE BUDGET FOR THE 2002-
03 FISCAL YEAR.
WHEREAS Resolution 20357 approving the budget forthe fiscal year 2002-03 was adopted
on June 5, 2002; and
WHEREAS the City Manager has recommended, and the City Council desires to approve,
certain amendments to said budget;
NOW THEREFORE BE IT RESOLVED that the Director of Finance is authorized to record
inter-fund cash transfers as required in accordance with this Resolution,and that Resolution
20357 adopting the budget for the 2002-03 fiscal year is hereby amended as follows:
SECTION 1. ADDITIONS
Fund Activity Account Amount
112 2016 50003 Bldg & Equip $136,3 18
Purpose to appropriate funds for general conditions and construction management services
for the new City Visitors Center, former Tramway Gas Station
SECTION 2. SOURCE
Fund balance in Community Promotion Fund
Fund Activity I Account Amount
112 29301 $136,378
Adopted this day of April, 2003.
AYES:
NOES:
ABSENT:
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
By
City Clerk City Manager
REVIEWED AND APPROVED