HomeMy WebLinkAbout04577 - TURNER CONSTRUCTION CONVENTION CENTER DOCUMENT TRACKING
Page: 1
Report: One Document Detail April 21, 2006
Condition: Document Numbera4577,
Document# Description Approval Date Expiration Date Closed Date
A4577 Convention Center Remodel Expansion Construction Manager 10/02/2002 12/01/2005
Company Name: Turner Construction
Address: 375 Hudson Street, New York, NY 10014
Group: PROCUREMENT
Service: In File
xRef: PROCUREMENT
Ins. Status: A policy has Expired.
Document Tracking Items: Due Completed Tracking Amount Amount
Code Item Description Date Date Date Added Paid
MO 7595 Amend 4 incr$96,000 12/15/2004
Amend 4 to CM in file-distnb to dept 02/07/2005
Amend#3 -in file 06/28/2004
MO 7497 Amend#3 ext one mo. &deer 06/16/2004
$125,000.00
Amend#1 signed and in file 07/02/2003
Amend#2 9-wk supe MO 7422 $ 12/17/2003
Track Notes: in file
kdh
amend#1 to extend term 2-28-05 & mid�M07236 01/02/2003
END OF REPORT ' * ' * *
A .
A ; `U��
AMENDMENT NO. 4
AGREEMENT NO. 4577 - CONSTRUCTION MANAGEMENT SERVICE
PALM SPRINGS CONVENTION CENTER EXPANSION PHASE II
THIS FOURTH AMENDMENT to Agreement No. 4577 for contract services, (herein
"Agreement") made and entered into on the ',` '-''• day of `,::7�°"r�,` 11/'� , , 2004, by and
between the CITY OF PALM SPRINGS, (herein "City") and TURNER CONSTRUCTION
COMPANY, (herein "Construction Manager") is hereby amended effective December 16,
2004, as follows:
Section 1. Exhibit"C" Schedule of Compensation, General Conditions, Phase II, is hereby
amended by adding a Superintendent to the project staff for seven and a half months ,
December 18, 2004 through July 30, 2005, to read as follows:
"Construction & Closeout Expenses Staff Fee
Additional Superintendent $0 $96,000 $0
(Seven and one half months Staffing, with cost to be paid monthly based on an hourly rate
of$75, not to exceed $96,000)"
Section 2. Due Execution. The person(s)executing this Amendment 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 Amendment on behalf of said party, (III) by so executing this
Amendment, such party is formally bound to the provisions of this amendment, and (iv)the
entering this Amendment does not violate any provision of any other agreementto which said
party is bound.
Section 3. Full Force and Effect. The parties further agree that, except as specifically
provided in this Amendment, the terms of the Agreement shall remain unchanged and in full
force and effect.
IN WITNESS WHEREOF,the parties hereto have caused these presents to be executed on
the .,day of a.k'1,';: f , 2004,j
"City"
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
/ City Clerk City Manager
(REVIEWED AND APPROVED:
y Atto� "Construction Manager,
TURNER CONSTRUCTION COMPANY
Na
Title:
Name:
t
Title: �r y'= Cal, (rL�2 �'i . Qs, !'
Council Minutes
12-15-04, Page 3
16. Res 21162 and 21163 approving Payroll Warrants and Claims & Demands.
Note abstentions, if any:
Item 8:Councilmember Pougnet declared Conflict of Interest due to business client.
Councilmember Warrant# Payee Particular Nature of Conflict
Mills 1001810 Animal Medical Hospital Bus Related
EXTENDED CONSENT AGENDA:
4. MO 7595 approving Amendment 4 to A4577 with Turner Construction, for
additional supervisory staffing, in the amount of$96,000. A4577
5. Res 21164 ratifying all Convention Center Expansion Project change orders
authorized by the Project Administrator through December 15, 2004, and
authorize an additional $500,000 in change orders to the Project Administrator.
6. MO 7596 approving an agreement with Impact General Inc, for as-needed
health, safety, and risk management services, in the amount of$70,000, A4941
3-1-1, Mills No, Foat Absent
13. MO 7597 rescinding Minute Order 7592 which approved a Contract Services
Agreement with Willdan for temporary planning services, in an amount not-to-
exceed $40,000. A4979
14. MO 7598 approving and authorizing the City Attorney to prepare a Contract
Services Agreement with Willdan for temporary planning services from
September 1, 2004 through February 28, 2005, in an amount not-to-exceed
$106,000. A5010
PUBLIC HEARINGS: NONE
COUNCIL COMMENTS/ANNOUNCEMENTS/INTERAGENCY REPORTS:
LEGISLATIVE ACTION:
16, ESTABLISHMENT OF A 401 PLAN FOR DEPARTMENT HEADS
Recommendation: That the City Council approve the establishment of a 401
Plan for the purpose of creating a benefit to Department Heads at no cost to the
City.
a) Memorandum of Director of Finance
b) If desired, Res 21165 as recommended and amended to include both
police bargaining units,fire mgmt, & MAPS.
turner
Turner Construction Company
220 Calle Alvarado
Palm Springs, CA 92262
phone: 760.327.5810
fax: 760.327.5801
LETTER OF TRANSMITTAL
Date: 11/30/04 Via: Mail Courier (UPS) -4
Facsimile Hand Delivery
To: Turner Construction Company Phone: 714/669-7330
400 Exchange, Suite 250
Irvine, CA 92602 Fax: 714/669-7323
Attn: Jeff Hall Re: Palm Springs Convention Center
Expansion Phase II #8640MA
From: Lynn Roberts
We are sending to you: Attached ❑ Under Separate Cover
Copies Description
5 Amendment No. 4
Comments: Jeff, At Smoot asked me to overnight this Amendment No. 4 to you for
signatures and notarization.
Sent by: Lynn Roberts
a3 Itchng the Future
Turner Construction
Convention Ctr CP02-27
AMENDMENT NO. 3 AGREEMENT #4577 Amend 3
M07497, 6-16-04
AGREEMENT NO. 4577 - CONSTRUCTION MANAGEMENT S". --
PALM SPRINGS CONVENTION CENTER EXPANSION PHASE II
THIS THIRD AMENDMENT tQ Agreement No. 4577 for contract services, (herein "Agreement")
made and entered into on the � zday of 310NJ 2004, by and between the CITY OF PALM
SPRINGS, (herein 'City') and URNER CONSTRUCTION COMPANY, (herein "Construction
Manager') is hereby amended effective 4az;, 2co y , as follows:
Section 1. Section 3.4 Term is hereby arnended to reflect a new ending date of October 31,2005, a
one month extension.
Section 2. Exhibit"C"Schedule of Compensation, General Conditions, Phase II, is hereby amended
by adding an additional month of compensation equal to $64,227.78, to read as follows:
"Construction & Closeout Expenses Staff Fee
October 2005 $9863.75 $54,364.03 $0"
Section 3. Exhibit AC@ Schedule of Compensation, Fee, Phase II, is hereby amended by deleting all
existing reference to Fee and replacing it with the following:
"Fee:The Fee portion of the compensation for Construction Manager's services shall be set at 2.9%of
$28,514,454,for a Fee of$826,919.64. The fee shall be paid to Construction Manager as delineated in
Amendment No.2 to this contract except that a lump sum of$86,614.32 shall be paid within 30 days of
the signing of this Third Amendment. For any construction valuation in excess of$32,923,868,that is
administered by Construction Manager, a Fee of 2.9% shall be due and payable upon filing of the
Notice of Completion on the project. The total Compensation to Construction Manager following
approval of Sections 2 & 3 of this Third Amendment shall increase from $2,159,304 84 to
$2,310,146.94."
Section 4. Due Execution. The person(s) executing this Amendment 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 Amendment on behalf of said party, (iii)by so executing this Amendment, such party is
formally bound to the provisions of this Amendment, and (iv) the entering this agreement does not
violate any provision of any other agreement to which said party is bound.
Section 5. Full Force and Effect. The parties further agree that, except as specifically provided in this
Amendment, the terms of the Agreement shall remain unchanged and in full force and effect.
Page 2, Amendment No. 3, Agreement No. 4577
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed on the
_10day of �11VlQ 2004.
/ ,,City'
TTE-ST, J CITY OF PALM SPRINGS, CALIFORNIA
City Clerk City Manager
REVIEWED AND APPROVED: N �' UJ1 � LJflns «f111 c` l�% M - i':.
V C!gity Att r ey
"Construction Manager"
TURNER C NSTRUJTI N COMPANY
Name:
Title: yoru dt��as� g
Name: G, .-�--
0
Title: t*r c� ✓', .r, 46 -,r
State of county of ���
Subscribed and SYM for aftnmed) to fore
me / S day ofi ��
L4,�'laG7P�e � � u On�� rum
IeofNotary)
�Yt11HN E.HOFfMMi
6'OIIIIIHY M 1141/12,1
�► 1bIaYAlblc-Ca11pM�
MY�n MOV7,
Turner Construction
Convention Center
F AGREEMENT #4577 Amend 2
MO7422, 12-17-03
AMENDMENT NO. 2
AGREEMENT NO. 4577 - CONSTRUCTION MANAGEMENT SERVICES
THIS SECOND AMENDMENT to Agreement No. 4577 for contract services, (herein
"Agreement")made and entered into on the flrH day of a d C TM 6C:rC,2003,by and between
the CITY OF PALM SPRINGS, (herein "City") and TURNER CONSTRUCTION COMPANY,
(herein "Construction Manager") is hereby amended effective �t��c ni i� 2 CZ6 , as
follows:
Section 1. Section 3.4 Term is hereby amended to reflect a new ending date of September 30,
2005.
Section 2. Exhibit "C" Schedule of Compensation, Phase II, is hereby amended to read as
follows:
"Phase II Expansion Compensation:
Terms of Compensation. The services provided tinder this Agreement shall be
performed for a lump sum fee of Two Million One IItmdred Fifty-Nine Thousand
Three Hundred Four Dollars and Eighty-Four Cents, as outlined in the General
Conditions Breakdown and the Billing Schedule of the Construction Manager's
Proposal, attached hereto. The monthly fee breakdown is as follows:
General Conditions Fee
A. Pre-Construction Expenses Staff
February 2003 $0 $17,500.00 $0
March 2003 $0 $17,500.00 $0
April 2003 $0 $17,500.00 $0
May 2003 $0 $17,500.00 $0
June 2003 $0 $17,500.00 $0
July 2003 $0 $17,500.00 $0
August 2003 $0 $17,500.00 $0
September 2003 $0 $17,500.00 $0
October 2003 $0 $17,500.00 $0
November 2003 $0 $17,500.00 $0
December 2003 $4,475.00 $17,500.00 $33,650.22
January2004 $4,475.00 $17,500.00 $33,650.22
February 2004 $4,475.00 $17,500.00 $33,650.22
March2004 $4,475.00 $17,500.00 $33,650.22
-1-
;7, Z
B. Construction& Closeout
April 2004 $9,863.75 $54,391.66 $33,650.22
May 2004 $9,863.75 $54,391.66 $33,650.22
June 2004 $9,863.75 $54,391.66 $33,650.22
July 2004 $9,863.75 $54,391.66 $33,650.22
August 2004 $9,863.75 $54,391.66 $33,650.22
September 2004 $9,863.75 $54,391.66 $33,650.22
October 2004 $9,863.75 $54,391.66 $33,650.22
November 2004 $9,863.75 $54,391.66 $33,650.22
December 2004 $9,863.75 $54,391.66 $33,650.22
January 2005 $9,863.75 $54,391.66 $33,650.22
February 2005 $9,863.75 $54,391.66 $33,650.22
March 2005 $9,863.75 $54,391.66 $33,650.22
April 2005 $9,863.75 $54,391.66 $33,650.22
May 2005 $9,963.75 $54,391.66 $33,650.22
June 2005 $9,863.75 $54,391.66 $33,650.22
July 2005 $9,863.75 $54,391.66 $33,650.22
August 2005 $9,863.75 $54,391.66 $33,650.22
September 2005 $9,963.75 $54,391.68 $33,650.22
$215,175.00 $1,203,825.00 $740,304.84
GRAND TOTAL $2,159,304.94
Compensation for the above sums shall be billed to the City on a monthly basis as outlined above
on a hemp su in basis. The Constriction Manager's General Conditions are for a Lump Sum Amount
of($1,419,000.00)dollars as outlined in Turner's General Conditions proposal dated September 18,
2002. The Constriction Manager's General Conditions will be billed as a hump suun amount as
outlined in the above schedule. The fee for the Constriction Manager's Services is 2.9%of the total
cost of construction except for Turner's General Conditions. The Fee has been calculated at 2.9%
of($25,527,753.00) dollars and will be billed as a hump sum amount of($33,650.22) dollars per
month. During the last month's billing the fee(but not the general conditions charge which remains
fixed)will be adjusted to reflect the actual cost of the project and the fee will either be increased or
decreased based on the actual cost of the project. As provided in Exhibit "D", the Schedule of
Performance,Construction Manager shall further provide a Status Report to the City on October 30,
2004, setting forth the Construction Manager's best estimate of the date of completion for all
Convention Center Expansion(the "Status Report"). In the event that the Status Report indicates
that construction cannot be reasonably completed by July 30, 2005, then the monthly payment
schedule above (for both General Conditions and the Management Fee) shall be adjusted for the
remaining term of the Agreement to the date that constriction will be completed. The City's Project
Administrator, upon his prior written approval may reimburse, at cost, Construction Manager for
costs of safety engineer's visits to the site and for extra Project Superintendent time if said extra time
will help expedite the project. Total reimbursements shall not exceed$195,000.00 and said funds
shall come from the City's pre-established General Conditions Budget of$901,205.00. Costs will
be reimbursed based on attachment No. 1 hereto.
-2-
f ~
Section 3. Due Execution. The person(s) executing this Amendment 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 Amendment on behalf of said party, (iii)by so
executing this Amendment, such party is formally bound to the provisions of this
Amendment, and (iv) the entering into this Amendment does not violate any
provision of any other agreement to which said party is bound.
Section 4. Full Force and Effect. The parties further agree that,except as specifically provided
in this amendment, the terms of the agreement shall remain unchanged and in full
force and effect.
IN WI S WHEREOF,the parties hereto have caused these presents to be executed onthe l `=
day of. ' �� ( 71tt ) 200
"City"
AT ST: CITY OF PALM SPRINGS, CALIFORNIA
City Clerk City Manage
REVIEWED AND APPROVED:
r�
tkyA
ttorney
"Construction Manager"
TURNER CONSTRUCTION COMPANY
r
n
Name:
Title:
Narne:
Title: v/CC" PI�Er/iCyT
-3-
ATTACHMENT #1
(To Amendment No. 2 to Agreement No. 4577)
Turner Construction Hourly Rates:
Position Hourly Rate
Superintendent $75.00
Safety Engineer $75.00
Turner Construction
Convention Center
AGREEMENT #4577 Amend 1
M072361 1-2-03
AMENDMENT NO. 1
AGREEMENT NO. 4577 - CONSTRUCTION MANAGEMENT SERVICES
THIS FIRST AMENDMENT to Agreement No 4577 for contract services, (herein
"Agreement")made and entered into on the j� ��day of J 2003,by and between the
CITY OF PALM SPRINGS(herein"City")and TURNE CONST UCTION COMPANY(herein
"Construction Manager") is hereby amended effective January 3, 2003, as follows:
Section 1. Section 3.4 Term is hereby amended to reflect a new ending date of February 28,
2005.
Section 2. Section 5.2 Indemnification is hereby amended to add the following language at the
6`h line from the beginning of Section 5.2 after the words"damages to property"and
before the words "to the extent", with all other provisions of Section 5.2 remaining
unmodified and in fill force and effect:
", except to the extent covered by Builder's Risk Insurance under Section 5.5 of
Exhibit "B","
Section 3. Exhibit "A" Scope of Services is hereby amended by replacing the introductory
paragraph with the following:
"Construction Manager shall provide Construction Management Services for the
Convention Center Phase I Remodel/Expansion Project and, upon City's written
approval,the Phase II Expansion Project each in three phases:Phase I- Pre-bid/Bid;
Phase II- Construction; Phase II-Post Construction. Specific scope for each of the
phases is itemized as follows:"
Section 4. Exhibit "A" Scope of Services, Pre-bid/Bid, is hereby amended by adding the
following item b.1:
"b.I I. Cost Estimating. Construction Manager shall provide three months of cost
estimating services to prepare up to four separate cost estimates throughout the
design process of the Phase II Expansion Project."
Section 5. Exhibit"B", at Section 5.5 shall be revised in its entirety to read as follows:
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$27,200,000 or, at City's option, an amount equal to the value
of the Project at jobsite, including coverage for earthquake, flood damages and
terrorism coverage. The Builder's Risk Insurance Policy shall name the Constriction
Manager as an additional insured and provide a waiver of subrogation. In executing
1
O'`I9tCZ,'?AL' CZ,
(kClDJOR AOFIEENEW,
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 Insurance Policy, as set forth in Section 5.0 of the Agreement.
Should any substance, material, matter or bio-contaminant that can be considered
unsafe or hazardous, including but not limited to, lead,PCB's,or mold(collectively
"unsafe materials") exist at, or is introduced into, the Project site, Construction
Manager shall inform City of same immediately upon discovering any facts regarding
the presence of such unsafe materials. Construction Manager shall exercise its duties
in identifying any unsafe materials, informing the City of same in a reasonable
mamier. Provided Construction Manager exercises its duties in accordance with this
section, the City shall defend and hold Construction Manager hannless from all
claims, losses, damages and expenses relating as a result of unsafe materials,
existing,or introduced into the Project,whether before,during,after or following the
conclusion of the Project.
Section 6. Exhibit"C" Schedule of Compensation is hereby amended for Phase I expansion to
reflect an increase of$56,495 to be equally divided in five monthly payments of
$11,299 to be added to the current monthly payments called for between January
2003 and May 2003.
Section 7. Exhibit"C" Schedule of Compensation is hereby further amended to add a Phase 11
Expansion Project Compensation Schedule to read as follows:
"Phase 11 Expansion Compensation:
Terms of Compensation. The services provided under this Agreement shall be
performed for a lump sum fee of One Million Nine Hundred Eighty-One Thousand
One Hundred dollars, as outlined in the General Conditions breakdown and the
Billing Schedule of the Constriction Manager's Proposal, attached hereto. The
monthly fee breakdown is as follows:
General Conditions Fee
A. Pre-Construction Expenses Staff
January 2003 $0 $19,346.87 $0.
February 2003 $0 $19,346.87 $0.
March 2003 $0 $19,346.87 $0.
April 2003 $0 $19,346.87 $0.
May 2003 $0 $19,346.87 $0.
June 2003 $0 $19,346.87 $0.
July 2003 $9,863.75 $19,346.87 $0.
2
August 2003 $9,863.75 $19,346.91 $0.
B. Construction & Closeout
September 2003 $9,863.75 $58,280.55 $32,222.22
October 2003 $9,863.75 $58,280.55 $32,222.22
November 2003 $9,863.75 $58,280.55 $32,222.22
December 2003 $9,863.75 $58,280.55 $32,222.22
January 2004 $9,863.75 $58,280.55 $32,222.22
February 2004 $9,863.75 $58,280.55 $32,222.22
March 2004 $9,863.75 $58,280.55 $32,222.22
April 2004 $9,863.75 $58,280.55 $32,222.22
May 2004 $9,863.75 $58,280.55 $32,222.22
June 2004 $9,863.75 $58,280.55 $32,222.22
July 2004 $9,863.75 $58,280.55 $32,222.22
August 2004 $9,863.75 $58,280.55 $32,222.22
September 2004 $9,863.75 $58,280.55 $32,222.22
October 2004 $9,863.75 $58,280.55 $32,222.22
November 2004 $9,863.75 $58,280.55 $32,222.22
December 2004 $9,863.75 $58,280.55 $32,222.22
January 2005 $9,863.75 $58,280.55 $32,222.22
February 2005 $9,863.75 $58,280.55 $32,222.26
$197,275.00 $1,203,825.00 $580,000.00
GRAND TOTAL $1,981,100.00
Compensation for the above sums shall be billed to the City on a monthly basis as
outlined above on a lurnp sum basis. The Construction Manager's General
Conditions are for a Lump Sum Amount of ($1,401,100) dollars as outlined in
Turner's General Conditions proposal dated September 18,2002. The Construction
Manager's General Conditions will be billed as a lump sum amount, as outlined in
the above schedule. The fee for the Construction Manager's Services is 2.9%of the
total cost of construction except for Turner's General Conditions. The Fee has been
calculated at 2.9% of ($20,000,000.00) dollars and will be billed at a lump sum
amount of($32,222.22) dollars per month. During the last month's billing the fee
(but not the general conditions charge which remains fixed)will be adjusted to reflect
the actual cost of the project and the fee will either be increased or decreased based
on the actual cost of the project. As provided in Exhibit "D", the Schedule of
Performance, Construction Manager shall further provide a Status Report to the City
on February 28, 2004, setting forth the Construction manager's best estimate of the
date of completion for all Convention Center Expansion(the"Status Report"). In the
event that the Status Report indicates that construction cannot be reasonably
completed by December 24, 2004, then the monthly payment schedule above (for
both General Conditions and the Management Fee) shall be adjusted for the
remaining terrn of the Agreement to the date that construction will be completed.
3
Section 8. Schedule "D" Schedule of Performance is hereby amended by adding an additional
schedule for the Phase II Expansion Project as follows:
"Phase II Expansion Schedule of Performance:
Items of Performance Time for Performance
A. Pre-Construction Services Pre-Bid/Bid)
1. EstimatingNalue Engineering On or before September 1,
2003
2. Commence Solicitation and Pre- On or before June 1, 2003
Qualification process for Trade
Contractors.
3. Assist the City in bidding out On or before July 1, 2003 and
trade packages and provide ongoing until completion of
recommendations for trade contract of the project.
awards.
B. Construction Services (Construction)
1. Commence Construction Management August 1, 2003 until
Services completion.
2. Provide status report to the City February 28, 2004
setting for the anticipated date of
final completion
C. Contract Closeout
1. Manage the completion of all trade From August 1, 2003 until
contracts and finalize all outstanding completion but no later than
costs with trade contractors December 25, 2004
2. Finalize record drawings, submittal From November 1, 2004 until
packages, and O&M Manuals to the completion, but no later than
to the City finalize the completion February 28, 2005 or thirty-
of the project. five (35) days after filing
Notice of Completion,
whichever is sooner.
4
3. Assist the City through the Trade Expiration of Warrantee
Contractor warrantee periods Periods
It is understood that the foregoing Schedule of Performance is subject to all of the terms and
conditions set forth in the test of the Agreement. The summary of the items of performance
in this Schedule of Performance is not intended to supersede or modify the more complete
description in the text. In the even of any conflict or inconsistency between the Schedule of
Performance and the text of the Agreement, the text shall govern."
Section 9. Due Execution. The person(s) executing this Amendment 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 Amendment on behalf of said party,(iii)by so executing this Amendment,
such party is formally bound to the provisions of this Amendment, and (iv) the entering into this
Amendment does not violate any provision of any other agreement to which said party is bound.
Section 10. Full Force and Effect. The parties fitrther agree that, except as specifically
provided in this Amendment, the terms of the Agreement shall remain unchanged and in full
force and effect.
23340 5_
IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed on the
day of May, 2003.
"City"
ATTEST: CITY OF PALM SPRINGS, CALIFORNIA
e
City Clerk City Manager
REVIEWED AND APPROVED:
4-
City At orney
Agreement over/um er $25,000 "Construction Manager"
Reviewed and approved by TURNENCONSTRUCTION COMPANY
Procurement & Contracting
Initials a Date A i 63 Name: L-,z-,
P.O. Number David M. Seastrom
Title: Vice President & Reg. Mgr.
Name: -�
William 4I. CNdy
Title: Vice Pres> & Gen. Mgr.
s �li> 9 �
23340 (_
Turner Construction
Convention Center Constn Mgr
AGREEMENT #4577
MO7173, 10-2-07
CITY OF PALM SPRINGS
CONTRACT SERVICE AGREEMENT
CONVENTION CENTER REMODEL/EXPANSION CONSTRUCTION MANAGER
THIS CONTRACTS RVICES AGREEMENT (herein "Agreement"), is made and entered
into this-day of d 20Lg by and between the CITY OF PALM SPRINGS,
a municipal corporation, (herein "City") and TURNER CONSTRUCTION COMPANY, (herein
"Construction Manager"). The term Construction Manager includes professionals performing in a
consulting capacity. The parties hereto agree as follows:
1.0 SERVICES OF CONTRACTOR
1.1 Scope of Services. In compliance with all terms and conditions of this
Agreement, the Construction Manager shall provide those services in connection with the
Convention Center Remodel/Expansion ("Project") as specified in the "Scope of Services" attached
hereto as Exhibit "A" and incorporate 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
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 industry professional
standards in performing the work and services required hereunder. For purposes of this
Agreement, the phrase "industry professional standards" shall mean those standards of practice
recognized by one or more first-class firms performing similar work under similar circumstances.
1.2 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.
1.3 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.
1.4 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
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
IRv 420924 v4 _1_
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.
1.5 Care of Work. The Construction Manager shall adopt reasonable methods
in furnishing papers, documents, plans, studies and/or other components thereof to prevent losses
or damages.
1.6 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.
1.7 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. 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 compensation provided for at Section 2.1 below, 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 compensation described
at Section 2.1 below 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
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, except as provided in the schedule of compensation
at Exhibit "C".
1.8 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.
1.9 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.
2.0 COMPENSATION
2.1 Schedule of Compensation. For the services rendered pursuant to this
Agreement, the Construction Manager shall be compensated in accordance with the 'Schedule of
Compensation" attached hereto as Exhibit "C" and incorporated herein by this reference.
IRV 420924 v4 _?_
Compensation may include reimbursement for actual and necessary expenditures for reproduction
costs, telephone expense, transportation expense and other expenses as approved by the
Contract Officer in advance, or specified in the Schedule of Compensation. The compensation
referenced in the Schedule of compensation 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 later than the first (1") working day of such month, Construction Manager shall 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. In executing this Agreement, the Construction Manager understands that construction
of the first phase Convention Center expansion/remodel is scheduled to commence during the
month of December 2002 and that the intended date for occupancy is March 31, 2003, and that the
contract close-out shall occur in accordance with the Schedule of Performance attached hereto as
Exhibit "D." 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.
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 Force Maieure. 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 for any delay in the performance of this Agreement, however caused, Construction Manager's
sole remedy being extension of the Agreement pursuant to this Section, and recovery of actual
IRV 920924 v4 -3-
costs incurred by such delay. In no event will Construction Manager be entitled to recover
consequential damages as a result of such delay.
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
which is anticipated to be no later than May 31, 2003; provided, however, that this Agreement shall
automatically be extended for a reasonable period to allow for the completion of any and all
remaining services as set forth under the Scope of Services, Exhibit "A," subject to the provisions
of Section 1.7 for Additional Services herein.
4.0 COORDINATION OF WORK
4.1 Representative 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:
Dave Seastrom, Regional Manager
Bill McLaughlin, Area Manager
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. In the event of any such unapproved transfer, including any bankruptcy
proceeding, this Agreement shall be subject to the provisions of Section 7.9 below. No approved
transfer shall release the Construction Manager or any surety of Construction Manager of any
liability hereunder without the express consent of City.
IRV#20924 v4 -4-
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.
4.4 Independent Construction Manager. 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
three million ($3,000,000) dollars 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
IRV 920924 v4 -5-
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 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 activities or the activities of any person or persons 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 injury to person (including
death resulting therefrom) or damages to property to the extent resulting from the negligent
performance of the services 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, Construction Manager shall
not be responsible for those portions of claims and liabilities caused by City's or any Trade
Contractor's own concurrent passive or active negligence or willful misconduct.
In the event the City, its officers, agents or employees is made a party to any action or
proceeding filed or prosecuted against the Construction Manager in connection with the services
hereunder,
(a) To the extent that Construction Manager is obligated to indemnify
and hold harmless City pursuant to the above paragraph, the Construction Manager shall defend
the action on behalf of itself and the City and pay all costs and fees for its and the City's defense,
including legal costs and attorneys' fees incurred in connection therewith, unless the City decides,
in its sole discretion, to defend any such action itself. The Construction Manager may provide a
defense for the City with the counsel selected by Construction Manager, however, subject to the
reasonable approval of the City.
(b) The Construction Manager shall not be entitled to settle any claims
against it and the City in any such action, without the express consent of the City, which shall not
be unreasonably denied. Any settlement shall be enforceable against the City only to the extent
the City consents to same, and only as to that portion to which the City consents.
IRV 820924 v4 -6-
(c) Irrespective of who defends any action and pays the legal costs and
fees therefore, City shall be liable for that proportionate share of any judgement in such action as
may be allocated to City by the tribunal.
5.3 Third Party Indemnification. City will cause each Trade Contractor, their
subcontractors and any consultants engaged to provide services for the Project and retained
subsequent to the execution of this Agreement, to indemnify and hold Construction Manager
harmless from all claims, losses, expenses and damages (including attorney's fees and costs) that
may arise from said Trade Contractor's subcontractor's or consultant's activities, including those of
its officers, employees, agents, consultants, and any persons directly employed by any of them on
the Project.
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 agrees that the 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. In the event of such an increase in the required
coverage, the City shall provide reasonable reimbursement to the Construction Manager for its
actual costs of any increased premiums.
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 subcontractor 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
IRV#20924 v4 _7_
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 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
under this Agreement shall not be released publicly without the prior written 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 (i) any amounts the payment of which may be
in dispute hereunder, and (ii) all amounts for which City may be liable to third parties, by reason of
Construction Manager's negligent acts or omissions under this Agreement. In the event that any
claim, as a result of Construction Manager's negligence, is made by a third party, the amount or
validity of which is disputed by Construction Manager, City may withhold from.any payment due,
IRV 420924 0 _8_
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. The amount of such funds retained shall in no event exceed Construction
Manager's maximum compensation amount under the Schedule of Compensation, as set forth at
Exhibit "C".
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 party'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 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 Legal Action. 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 NONE ($_N/A_) 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 "C"). 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
IRV 420924 v4 _9_
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.
8.0 CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION
8.1 Non-liability 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
IRV U0924 0 -10-
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.
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.
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 Contractor's contract with City; provided, however, that should the Construction
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.
9.7 Construction Manager not an Architect/Engineer. City acknowledges that
Construction Manager is not a 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 errors or omissions.
[SIGNATURE PAGE FOLLOWS:]
IRV 920924 v4 _11_
IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of
the date first written above.
ATTEST:
CITY OF PALM SPRINGS,
a municipal corporation
(::By: �
City Clerk City
Manager
(Check one: _Individual_ Partnership
-�'C`orporation)
APPROVED AS TO FORM:
rrConstruction Manager:
By:—
City Aftcri4e� By. 41A
Signature (Notarized)
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Corporations require two notarized signatures: Comae from
each of the following: A. Chairman of Board, President,or Print Name & Title
any Vice President:AN94i.�reteiq;Am7stant-5earetary,
Treasurer;,4seiciaat-�-reaeureroFC-irief-Financial-Ofieer). ��
By:
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Signature (Notarized)
'f-1=EssFaea:r-
Print Name &
Title
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Mailing Address:
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IRV#20924 v4
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VIRGIE D. PANDESI
Commission# I25745A
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EXHIBIT "A"
SCOPE OF SERVICES
Construction Manager shall provide Construction Management Services for the Convention
Center expansion/remodel in three phases: Phase I - Pre-bid/Bid; Phase II - Construction Phase;
Phase III - Post Construction. Specific scope for each of the phases is itemized as follows:
Phase I - 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 the Architect's and Consultant's design activities.
b. Proiect 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.
d. Cost Management Procedures - Construction Manager shall implement and
maintain 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. Prolect 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 Manager shall 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 session, 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.
IRV 920924 v4 -14-
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 Documents and addenda to the bidders that may include:
• Prepare summaries of work Bid Packages
• Arrange to secure documents from Architect(s)
• Arrange for printing, binding, 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 party 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 to the City with regard to the
potential award of trade contracts.
n. Construction Contract(s) - Construction Manager shall assist the City in the
preparation of the trade construction contracts..
IRV 420924 A -15-
1. Prepare a detailed estimate at the conclusion of design work. "Detailed"
shall be defined as no less than fifteen (15) 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 seminar for local trade contractors concerning the
project and how to participate as a sub or a sub to a larger sub.
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 documents for City review
and execution.
�= Public Relations Activities - Construction Manager shall assist the City and Architect
in public relations activities including preparation of the Project information, and attendance at
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
trade contractors commence between bid preparation and bid opening and continue for thirty-five
(35) calendar days beyond the final filing of the notice or notices of completion. Construction
Manager will assist the City in resolving the 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 Managers' preconstruction conference, site construction services (general
conditions items including supervision and administration of the Project), conducting construction
IRV 920924 v4 -16-
progress meetings, providing progress reports, processing contractor's requests for information
(RFI's), reviewing and recommending the approval or disapproval of change orders and payments
to the contractor, 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 to the 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 establish 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 regular job-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
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 Manager shall 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.
IRV 420924 v4 -1 7-
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 Chance Order Costs and Time Extensions - Construction Manager
shall assist the City and the Architect in negotiating Change Order costs and time extensions.
M. Chance 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 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 Claims 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.
IRV'20924 v4 _18_
S. Construction Schedule: Upon the City's transmission of a Notice of Award to the
successful trade contractor, 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 Contractor(s) 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.
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 processes.
Y. Monitor contract compliance with all trade contractors. Non-compliance shall 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 Manager will monitor the implementation of each trade
contractors' 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 Marshal,
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 Proiect 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.
IRV 920924 A -19-
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 the
trade 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.
IRV 420924 0 -20-
EXHIBIT "B"
SPECIAL REQUIREMENTS
Section 5.1 No special insurance is required as set forth by Section 5.1(d).
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 $5,000,000 at jobsite, 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.
IRV 920924 v4 -21-
EXHIBIT "C"
SCHEDULE OF COMPENSATION
I. Terms of Compensation. The services provided under this Agreement shall be performed
for a fee of two hundred twenty nine thousand four hundred sixty ($229,460.00) dollars, as
outlined in the General Conditions breakdown and the Billing Schedule of the Construction
Manager's Proposal, attached hereto. The monthly fee breakdown is as follows:
General Conditions Fee
A. Pre-Construction:
November $14,288.33 $ 0
December $14,288.33
B. Construction and Contract Close Out:
January $28,576.66 $ 11,600.00
February $28,576.66 $ 11,600.00
March $28,576.66 $ 11,600.00
April $28,576.66 $ 11,600.00
May $28,576.70 $ 11,600.00
Subtotals (rounded to the nearest dollar): $171,460.00 $ 58,000.00
GRAND TOTAL: $229,460.00
Compensation for the above sums shall be billed to the City on a monthly basis as outlined
above on a lump sum basis. The Construction Manager's General Conditions are for a Lump Sum
Amount of ($171,460.00) dollars as outlined in Turner's General Conditions proposal dated
September 18, 2002. The Construction Manager's General Conditions will be billed as a lump sum
amount, as outlined in the above schedule. The fee for the Construction Manager's Services is
2.9% of the total cost of construction except for Turner's General conditions. The Fee has been
calculated at 2.9% of ($2,000,000.00) dollars and will be billed at a lump sum amount of
($11,600.00) dollars per month. During the last month's billing, the fee (but not the general
conditions charge which remains fixed) will be adjusted to reflect the actual cost of the project and
the fee will either be increased or decreased based on the actual cost of the project. As provided in
Exhibit "D," the Schedule of Performance, Construction Manager shall further provide a status
report to the City on January 30, 2003, setting forth the Construction Manager's best estimate of
the date of completion for all Convention Center expansion/remodel construction (the "Status
Report"). In the event that the Status Report indicates that construction cannot be reasonably
completed by April 31, 2003, then the monthly payment schedule above (for both general
IRV 420924 v4 -22-
conditions and the management fee) shall be adjusted for the remaining term of the Agreement to
the date that construction will be completed.
It is also mutually agreed by both parties that the Construction Manager cannot control the
actions of the Trade Contractors for the work on the Convention Center expansion/remodel;
provided, however, that the Construction Manager has an obligation to meet the overall
performance date set forth in this Agreement. Notwithstanding this Date of Completion,
Construction Manager's Total Compensation shall not be reduced if the Convention center
expansion/remodel is not entirely complete by the Date of Completion unless such delay occurs
due to the actions of Construction Manager. Moreover, it shall be the duty of Construction
Manager to keep the City advised as to the progress of the work and to promptly advise City of any
occurrences which will affect the project schedule.
It is mutually agreed by both parties that should the City, at a future date decide not to
employee Construction Manager for the second phase expansion of the Convention Center, the
"fee" amount of $58,000 for this first phase shall be increased to 3.4% of the Total Cost of
Construction, and Construction Manager shall be reimbursed by the City within 30 days after the
completion of the project.
IRV#2O924 v4 -23-
EXHIBIT "D"
SCHEDULE OF PERFORMANCE
Items of Performance Time for Performance
A. Pre-Construction Services (Phase I Pre-Bid/Bid)
1. Commence Solicitation and Pre- On or Before November 1. 2002
Qualification Process for Trade
Contractors
2. Assist the City in Bidding-out On or Before December 1, 2002, and
trade packages and provide ongoing until completion of the Project
recommendations for trade contract
awards
B. Construction Services (Construction)
1. Commence Construction Management January 2, 2003 until completion
Services
2. Provide Status Report to the City January 31, 2003
setting forth the Anticipated Date of
Final Completion
C. Contract Close Out
1. Manage the completion of all trade From April 30, 2003 until Completion,
contracts and finalize all outstanding but No Later than May 31, 2003.
costs with trade contractors
2. Finalize record drawings, submittal From April 2003 until Completion,
packages, and O&M Manuals But No later than May 31, 2003
to the City finalize the completion or thirty-five (35) days after filing
of the Project. 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 or 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.
IRV#20924 v4 -24-