HomeMy WebLinkAboutNELLO GROUPi N
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AGREEMENT FOR PROGI�AM MANAGER_ 4�IoV- 01'
PRECONSTURCTION PHASE SERVICES
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This Agreement is made and entered into this day of..LL,�a 2000, by and between the City of
Santa Ana, a charter city and municipal corporation duly organized and exiQ'ig Under the Constitution and laws of the
State of California, herein referred to as the "CITY", and Nello, Group, Inc. of Santa Ana, California, a California
corporation, herein referred to as "Program Manager'„ or "PM".
I. PROJECT DESCRIPTION: PM shall provide preconstructlon phase advisory services and architectural and
engineering services as further described herein under section I 11, Scope of Work, for the new Delhi Community Park
Centel- ("Project") located in Santa Ana, California. Components of the project include a new single story, community -
service facility of approximately 27,000 g.s.f., and related park and site improvements.
11. PROJI,,-C'TDF.Llfl'EI?YMEII-IOD: The overall Project will be delivered by the Program Manager with single -
source contractual responsibility and a guaranteed maximum price for the Project, The Project will be delivered by
means of two phases: (I) preconStrUCtion phase advisory and architeCtUral/engineering, services incorporating requisite
design revisions to the existing project drawings, specifications, and related documentation ("Phase One"); and (2)
construction phase services through Project completion ("Phase Two,,). At the completion of Phase One services for the
Project, PM will provide to the City a Guaranteed Maximum Price ("GMP") for construction of the Project in
accordance with a to -be -developed Project Schedule through completion. The GMP for the Project will result in the
execution of the overall Project Construction Agreement, to be finalized. Upon approval of the Project GMP, the Phase
One services will be deerned completed and Phase Two services will then commence immediately thereafter. During
Phase Two, the PM and its Project Team will assume the overall liability and responsibilities of a licensed general
contractor. All construction trade work shall be competitively bid in accordance with the public bidding requirements of
the City of Santa Ana and shall comply with all local prevailing wage reqU I rein cuts, including Davis -Bacon
requirements, if applicable.
ill. SC'OPE OPWORK: PM and Its Consultants agree that they are independent contractors and not ernploycesof
the City. PM and its Consultants shall furnish all tools, equipment, facilities, materials, and labor necessary to perform in
a complete, skillful and professional manner those Phase One services described below:
A. Analysis: Consult with representatives of the City, examine site and Surroundings, ascertain presently
proposed and probable future ftinctions and requirements of the Project; prepare revised drawings, specifications
and related documentation incorporating the existing program requirements including site plans, floor plans,
elevations, sections and all other drawings necessary to describe the Project. Include provisions for
programmed future additions, if any, and development on the site and adjacent property of the City as well as
abutting streets; prepare all itemized budget for the Project, reflecting all recommended City -approved revisions,
if any, including a related construction cost estimate, estimates for essential or optional fixtures and
improvements recommended for separate and/or future purchase or installation, including but not limited to Such
items as floor coverings, window coverings, equipment, grounds improvement and landscaping, and all iterris of
cost necessary to the completion but not to be covered by construction contract. Prepare revised drawings,
specifications and related documentation reflecting the requisite scope of work in sufficient detail to permit all
analysis of the proposed COIISILRIC11011, building systems and methods Of Construction specified and a tabulation
of both gross and assignable floor areas with a comparison to the initial program requirements. Submit said
revised drawings, specifications and related documentation and a related budget; make necessary revisions as
required to meet the financial limitations and other needs of the City; Submit a tentative schedule for completion
of the subsequent Phase Two component of the Project.
B. Revised Drawings, Specificati
ons, Develop for the above analysis, when
and as approved, and submit to the City site plans, floor plans, elevations, cross -sections and other Construction
drawings, specifications, and related documentation necessary to fix and illustrate the size and character of the
Project and all approved revisions thereto, including applicable essentials as to kind and duality of materials,
type of structure, mechanical, electrical and sanitary systems, interior design and other fundamental information;
present for the approval of the City a Guaranteed Maximum Price (GMP) with defined scope of work, a
schedule for completion of subsequent phases, apply for and obtain any necessary approvals of public agencies.
After the final revised design has been approved by the City, prepare a matted and framed color rendering of the
facilities and grounds, 24" high by 36" wide in dimension.
C: Estimating: Develop detailed cost estimates which will include all indirect and direct components of
the work, including the PM, its consultants, and its contractors costs for each project component. PM to
coordinate with its consultants and contractors through the completion of design in revising cost estimates to
reflect any changes in the documents. During Phase One, and prior to the establishment of the GMP, PM shall
utilize its best efforts to control the cost of the Project and seek to maintain it within the City's approved budget
or any approved revisions thereto.
D. Phase One Project Schedule: Within ten (10) business days after execution of this Agreement by the
Parties, PM and its Project Team shall prepare a Project Critical Path Management ("CPM") Schedule, for
review and approval by the City, which identifies by phase all tasks required for completion of each project
component. Revise, maintain and ensure adherence to the Project CPM Schedule, when and as approved by the
City. In any event, Phase One assumes the overall pre -construction period only, not to exceed six (6) months
from the date of commencement as defined below, to the date of completion of the establishment of the GMP.
E. Value Engineerin2 and Constructibility Reviews: Provide the technical management of the Project's
re -design, including: the performance of formal architectural and engineering design revisions for each project
component; the performance of constructibility reviews and development of the various bid packages during the
construction document phases; and ensuring that all City -approved written design review comments and
revisions are incorporated by its consultants into the construction document bid sets. Suggest refinements to the
project components for the purpose of improving the sequencing of the work, budget reductions, and the
constructibility of the Project. Review of revised drawings, specifications, and related documentation shall be
for purposes of completeness, clarity, consistency, cost versus budget analysis, code compliance,
constructibility, coordination and value engineering as directed.
F. Designated City Representative: The City's Executive Director of the Public Works Agency, or his or
her designee, ("Designated City Representative") shall serve as the City's single representative through
completion of the Project. The Designated City Representative shall render, in a timely manner, all decisions
requested by the PM which may be necessary to perform work under the project. All decisions rendered by said
representative shall be binding upon the City. Furthermore, said representative, when present at the job site
during construction, shall be subject to all reasonable rules that may be imposed by PM and/or any of PM's
contractors.
IV. TIME FOR PERFORMANCE: PM shall commence performance of service immediately after the date of
execution of this Agreement and shall diligently perform the services described herein to full completion resulting in the
submission of a Guaranteed Maximum Price (GMP) for the Project, as to be set forth in the Phase One Project CPM
Schedule, as set forth in Item III.D., above.
V. COMPENSATION: City shall pay PM a fixed fee for services performed under the terms of this Agreement
and all actual costs and expenses incurred in connection with the Scope of Work. PM shall engage architectural,
engineering and other consultants as may be appropriate. The fixed fee, costs and expenses for Phase One services are
as set forth on the Preconstruction Services Budget which is attached hereto as Exhibit "A" and incorporated herein.
Such costs shall be paid by the City on a when and as incurred basis, plus reimbursable expenses. In any event, payment
for all services rendered hereunder for Phase One shall not exceed $263,450.00 (Two Hundred Sixty Three Thousand
Four Hundred Fifty dollars and no cents).
Reimbursable Costs: Other costs incurred in the performance of services for the project shall be reimbursed to
PM at cost and shall include, but not be limited to, the following:
A. Reimbursable travel and living expenses when traveling outside the Orange County area in connection
with the Project. Automobile transportation shall be reimbursable at $0.32 per mile.
B. Non local communication and postage charges.
C. Reproduction costs.
VI. PAYMENT: PM shall be paid on a monthly basis within thirty (30) days of receipt of statement as the work
progresses to completion to the establishment, delivery, and acceptance by the City of the agreed upon GMP for the
Project.
VII. LICENSES: PM, its employees, agents, contractors and subcontractors shall maintain professional licenses
required by the laws of the State of California at all times while performing services under the Agreement.
VIII. WORKER'S COMPENSATION INSURANCE: PM certifies that it is aware of the laws of the State of California
requiring employees to be insured against liability for Worker's Compensation and shall comply with such laws during
the term of this Agreement.
IX. INDEMNITYAND HOLD HARMLESS: PM agrees to and shall indemnify and hold the City, its officers,
employees and agents free and harmless from all claims, actions, damages and liabilities of whatsoever kind and nature
arising from death, personal injury, or property damage based upon any negligent act or omission of PM, its employees,
agents, invitees or any subcontractor of relating to or in any way connected with the accomplishment of the work or
performance of service under this Agreement, regardless of the existence or degree of fault or negligence on the part of
the City or any officer or employees of the City other than the sole, active negligence of City, its officers, employees, or
agents. As.part hereto of the foregoing indemnity, PM agrees to protect and to defend at its own expense, including
attorney's fees, the City, its officers and agents and employees from any and all legal action based upon fraud, negligent
acts or known omissions, as stated hereinabove.
X. PROFESSIONAL INSURANCE; PM shall obtain the agreement of each architect and engineering firm
providing services to PM hereunder to maintain in force and effect at all times during the performance of this
Agreement, Professional Liability Insurance (Errors and Omissions coverage), Commercial General Liability Insurance,
and Business Automobile Liability Insurance, each in the amount of not less than $1,000,000 per occurrence and
$2,000,000. aggregate.
(1) Any insurance carrier providing insurance coverage hereunder shall be admitted to the State of
California unless waived, in writing, by the Risk Manager of the City of Santa Ana, and such carrier(s)
shall have an A.M. BEST rating of no less than an A:VIII. In addition, any deductibles or self -insured
retentions must be declared by such carriers and such deductibles and retentions shall have the prior
consent, in writing, from the Risk Manager and, at the election of the Risk Manager, such carriers shall
be notified in writing and shall either: (1) reduce or eliminate such deductibles or self -insured retentions
relating to the City, its officers, employees or agents, or (2) procure a bond which guarantees payment
of losses and related investigations, elaim(s) administration and defense expenses and costs. If no
written notice is received from the Risk Manager within ten days of the acceptance of Agreement then
such deductibles or self -insured retentions shall be deemed acceptable.
(2) PM shall require each such architect and engineering firm to cause its insurance carrier(s) to furnish the
Clerk of the Council of the City with either (1) properly executed original Certificates of Insurance and
certified original copies of endorsements effecting coverage as required herein; or (2) if requested to do
so, in writing, by the Risk Manager, provide original certified copies of policies including all
endorsements and any and all attachments thereto, showing that such insurance is in full force and
effect, and the City, its officers, elected officials, employees, agents and representatives are named as
additional insureds with respect to this contract and the obligations of such architect and engineering
firms hereunder. Further, said Certificates and policies of insurance shall contain the covenant of the
insurance carriers that thirty days written notice shall be given to the City prior to any modification,
cancellation, expiration or reduction in coverage of such insurance. PM shall not begin operations
under this Agreement or otherwise use City premises until the City has been furnished original
certificates of insurance and certified copies of endorsements or policies of insurance including all
endorsements and any and all other attachments as required in this Section.
(3) It is understood and agreed to by such architect and engineering firms, and the insurance companies'
certificates of insurance and policies shall so covenant and shall be construed as primary and City's
insurance and/or deductibles and/or self -insured retentions or self -insured programs shall not be
construed as contributory.
XI. WORKPRODUCT: The City acknowledges that PM and PM's consultant's reports, drawings, specifications,
and other similar documents are instruments of professional service, not products. Although ownership of such
documents and copyrights thereto or therein are normally retained by PM or the consultant in question, they,
nonetheless, shall in this instance become the property of the City upon full payment to PM of any and all amounts owed
or due to PM and, through PM to the consultant in question, under the terms of this Agreement. All drawings must be
done on AutoCAD, per City standards, with the final submittal in ink on mylars, including disks of the digital file. PM
is entitled to retain reproducible copies of the above.
XII. TERMINATION. This Agreement maybe terminated by either the City or PM, without cause, upon thirty (30)
days written notice to either party. Upon termination, PM will be paid the reasonable value of its services and those of
its consultants actually performed up to the effective date of termination, together with any and all cancellation
penalties, termination fees, and costs payable or incurred by PM, if any, resulting from the City's termination.
Notwithstanding any of the provisions of this Agreement, PM's rights under this Agreement shall terminate, except for
costs and compensation accrued prior to the date of termination and termination costs and penalties as described above,
upon PM's bankruptcy, death or disability or, in the event of fraud, dishonesty, willful or material breach of this
Agreement by PM or, at the City's election in the event of PM's unwillingness or inability for any reason whatsoever to
perform the duties hereunder. In such event, PM shall be entitled to no further compensation under this Agreement, it
being the intent that PM shall be paid as specified in Paragraph V herein only during such period that PM shall, in fact,
be performing the duties hereunder.
XIII. ASSIGNMENT: Neither this Agreement nor any part thereof shall be assigned by PM without prior written
consent of the City.
Any material change in the business structure or majority ownership of PM, other than resulting from the death
of a principal shareholder, shall be deemed an assignment for purposes of this paragraph.
XIX. ALTERATIONS: No alteration or variation of the terms of this Agreement shall be valid unless made in writing
and signed by the parties hereto, and no oral understanding or agreement not incorporated herein shall be binding on any
of the parties hereto.
XV. CHOICE OF LAW: This Agreement shall be governed and construed in accordance with the laws of the State
of California.
XVI. WAIVER: Any waiver by either party of any breach of any one or more of the terms of this Agreement shall not
be construed to be a waiver of any subsequent or other breach of the same or of any other term thereof. Failure on the
part of either party to require exact, full and complete compliance with any terms of this Agreement shall not be
construed as in any manner changing the terms hereof, or stopping either party from enforcement hereof.
XVH. SEVERABILITY:. If any provision in the Agreement is held by a courtof competent jurisdiction to be invalid,
void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or
invalidated in any way.
XVIII. _ NO OTHER AGREEMENTS, AMENDMENTS: This Agreement supercedes any and all other agreements either
oral or in writing between the parties hereto. Any modifications to the terms of this Agreement must be in writing and
signed by the parties herein.
XX. NOTICES: All correspondence and notices required or contemplated by this Agreement shall be delivered to
the respective parties at the addresses set forth below and are deemed delivered on the fifth (5t'') day after their deposit in
the United States mail, postage prepaid or, if sent by reputable overnight delivery service, on the first business day after
delivery of such service with charges prepaid, or, if sent by electronic mail or telefacsimile, upon confirmed receipt of
the electronic mail or telefacsimile if received during business hours or upon the opening of the next business day if
received during other than business hours. "Business day" means any Monday, Tuesday, Wednesday, Thursday or
Friday except for national holidays, and "business hours" means anytime between the hours of 8:00 a.m. to 5:00 p.m. on
any business day:
If to City: Jim Ross
Executive Director of the Public Works Agency
City of Santa Ana
20 Civic Center Plaza, M-21
Santa Ana, CA 92702
(714) 647-5654
(714) 647-5069 FAX
e-mail: jross@ci.santa-ana.ca.us
If to Program
Manager: Roger Torriero
Principal
Nello Group, Inc.
6 Hutton Centre Drive, Suite 820
Santa Ana, CA 92707
(714) 557-6777
(7t4) 557-3777 FAX
e-mail: rntorriero aol.com
XXI. CONFLICTS OF INTEREST: PM and its consultants covenant that they presently have no interest, and shall
not have any interest, direct or indirect, which would conflict in any manner with the performance of services required
hereunder.
XXIL NON-DISCRIMINATION: By signing this Agreement, PM and its consultants certify that they do not
discriminate in hiring on the basis of race, color, creed, religion, sex, age, marital status, national origin, ancestry,
physical handicap or medical conditions.
IN WITNESS WHEREOF the parties hereto have executed this Agreement the date and year first above written.
ATTEST:
/V
low
Patricia E. Healy
Clerk of tile Council
APPROVED AS'11'g101CONT NIT:
,6avid N-7"Rearn
City Manager
RECOMMENDED FOR APPR6V L:
James/G. Ross
EXeCUtive Director
',Fli'blic Works Agency
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
Assistant,01 ,, Aitorv,e
CITY OF SANTA ANA, a charter city and
municipal corporation duly organized and
existing, under the Constitution and laws of the
State of California
By
Miguo-�Piil , ido
M /r/
ayo
PROGRAM MANAGER:
I( orri ro, Vice -President, Nei to Group,
ne.
Employer ID Number