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HomeMy WebLinkAboutResolution - 2016-R0045 - VANIR Construction Management - 01_28_2016Resolution No. 2016-R0045 Item No. 5.11 January 28, 2016 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, Contract No. 12326 for professional construction management services in connection with renovations of the Citizens Tower and the construction of a new Public Works Facility, if required, by and between the City of Lubbock and VANIR Construction Management, Inc. of Houston, Texas, and related documents. Said Contract is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on January 28, 2016 I Z ////0 GLEN C. BE ON, MAYOR ATTEST: Rebe ca Garza, City Secret APPROVED AS TO CONTENT: '-�e�� 4----.� Mark Y oo , Assistant ity Manager APP9Q44LD AS O FORM: qMitchNel]Saterw ' , First Assistant City Attorney RES.Contract-12326-VANIR Citizen's Tower 1.11.16 Resolution No. 2016-R0045 PROFESSIONAL SERVICES AGREEMENT STATE OF TEXAS COUNTY OF LUBBOCK § This Agreement ("Agreement', effective as of the 5th day of November 2015, is by and between City of Lubbock, Texas ("City'), a Texas home rule municipal corporation, and Vanlr Construction Management, Inc. ("CMff), a United States "Corporation". WITNESSETH WHEREAS, the City desires to obtain Construction Management services related to the Renovation of the Citizen's Tower located at 1208 14th Street, Renovation of the City Hall Building and Police Department located at 1625 13th Street and New Public Works'Building (After written authorization by City, and in compliance with this Agreement), Lubbock, Texas (the "Project'); and WHEREAS, CM has a professional staff experienced and is qualified to provide Construction Management services related to the Project, and will provide the services, as defined below, for the price provided herein, said price stipulated by City and CM to be a fair and reasonable price; and WHEREAS, the City desires to contract with CM to provide Construction Management services related to the Project and CM desires to provide the services related to same. NOW THEREFORE, for and in consideration of the terms, covenants and conditions set forth In this Agreement, the City and CM hereby agree as follows: ARTICLE I. TERM The term of this Agreement commences on the Effective Date and continues without interruption for a term through November 30, 2018as set forth in the receipt of the Notice to Proceed. The term will extend to September 30. 2019 if CM is authorized to provide service for the Public Works Building. The term may be altered by subsequent amendments of this Agreement, with the written and authorized consent of both parties. The following Exhibits are attached hereto and incorporated herein by reference as though fully set forth in the Agreement: Exhibit "A" — Additional Terms Appendix I — Rate Schedule Appendix II — Reimbursable Expenses Exhibit "B" — Insurance Certificate Exhibit "C" — Staffing Plan — Citizen's Tower/Annex Exhibit "D" — Staffing Plan — Public Works Building ARTICLE II. SERVICES AND COMPENSATION CM shall perform the services described in Exhibit A, Article 3, with regard to the Project and payment shall be due and payable upon receipt in accordance with work provided. Payments due CM under this Agreement shall be electronically transferred either by ACH, or wire transfer to the bank account and in accordance with the bank instructions identified in CM's most recent invoice in immediately available funds no later than the payment due date. Invoice number, project name and Contract Number shall be referenced in the bank wire reference fields or the ACH addenda information. In the event that such electronic funds transfer methods are not available to City, then payments due CM under this Agreement shall be made by check and mailed to the Address identified in the remittance instructions on CM's most recent invoice. The Remittance Advice document shall be mailed with the check to the address. ARTICLE III. TERMINATION A. General. City may terminate this Agreement, for any reason or convenience, upon thirty (30) days written notice to CM. In the event this Agreement is so terminated, the City shall only pay CM for services actually performed by CM up to the date CM is deemed to have received notice of termination as provided herein. B. Termination and Remedies. In the event CM breaches any term and/or provision of this Agreement the City shall be entitled to exercise any right or remedy available to it by this Agreement, at law or equity, including without limitation, termination of this Agreement and assertion of action for damages and/or injunctive relief. The exercise of any right or remedy shall not preclude the concurrent or subsequent exercise of any other right or remedy and all other rights and remedies shall be cumulative. ARTICLE IV. NON -ARBITRATION A. The City reserves the right to exercise any right or remedy available to it by law, contract equity, or otherwise, including without limitation, the right to seek any and all forms of relief in a court of competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict between this provision and another provision in, or related to, this document, this provision shall control. ARTICLE V. REPRESENTATIONS AND WARRANTIES A. Existence. CM is a California Corporation duly organized, validly existing, and in good standing under the laws of the State of California and is qualified to carry on its business in the State of Texas and is in good standing under the laws of the State of Texas. B. Authorization. Execution, delivery, and performance of this Agreement and the activities contemplated hereby have been duly and validly authorized by CM. This Agreement constitutes legal, valid, and binding obligations of CM and is enforceable in accordance with the terms thereof. C. Professional. CM maintains a professional staff and employs, as needed, other qualified specialists experienced In providing the Services, and are familiar with applicable laws, rules, and regulations, both state and federal, including, without limitation the applicable laws, regarding the activities contemplated hereby. D. Performance. CM will and shall conduct all activities contemplated by this Agreement in accordance with the standard of care, skill and diligence normally provided by a professional person in performance of similar Construction Management services, and comply with applicable laws, rules, and regulations, both state and federal, relating to Construction Management services, as contemplated hereby. E. Use of Copyrighted Material. CM warrants that any materials provided by CM for use by City pursuant to this Agreement shall not contain any proprietary material owned by any other party that Is protected under the Copyright Act or any other law, statute, rule, order, regulation or ordinance relating to the use or reproduction of materials. CM shall be solely responsible for ensuring that any materials provided by CM pursuant to this Agreement satisfy this requirement and CM agrees to indemnify and hold City harmless from all liability or loss caused to City or by to which City is exposed on account of CM's failure to perform this duty. F. CM shall perform In a manner consistent with that degree of care and skill normally practiced by members of the Construction Management profession currently performing services of a similar nature, and circumstances at the same time and similar locality. If, during the six month period following the earlier of completion or termination of the Project it is shown there is an error in the Project caused solely by CM's failure to meet such standards, and City has promptly notified CM in writing of any such error within that period, CM shall perform, at CM's cost, such corrective Construction Management services within the original Scope of Services as may be necessary to remedy such error. ARTICLE VI. SCOPE OF WORK CM shall accomplish the following: Construction Management related to the Renovation of the Citizen's Tower located at 1208 14t' Street, Renovation of the City Hall Building and Police Department located at 1625 13"' Street and New Public Works Building (After written authorization by City), Lubbock, Texas, as defined in Exhibit "A". ARTICLE VII. INDEPENDENT CONSULTANT STATUS CM and City agree that CM shall perform the duties under this Agreement as an independent consultant and shall be considered as Independent consultant under this Agreement and/or in its activities hereunder for all purposes. CM has the sole discretion to determine the manner in which the services are to be performed. During the performance of the Project under this Agreement, CM and CM's employees and/or sub -consultants, will not be considered, for any purpose, employees or agents of the City within the meaning or the application of any federal, state or local law or regulation, including without limitation, laws, rules or regulations regarding or related to unemployment insurance, old age benefits, workers compensation, labor, personal injury or taxes of any kind. ARTICLE VIII. INSURANCE CM shall procure and carry, at its sole cost and expense through the life of this Agreement, insurance protection as hereinafter specified, in form and substance satisfactory to City, carried with an insurance company authorized to transact business in the state of Texas, covering all aspects and risks of loss of all operations in connection with this Agreement, including without limitation, the indemnity obligations set forth herein. CM shall obtain and maintain in full force and effect during the term of this Agreement, and shall cause each approved subcontractor or sub -consultant of CM to obtain and maintain in full force and effect during the term of this Agreement, commercial general liability, professional liability and automobile liability coverage for non -owned and hired vehicles with insurance carriers admitted to do business in the state of Texas. Except for Professional Liability, the policies will be written on an occurrence basis, subject to the following minimum limits of liability: Commercial General Liability Each Occurrence: $1,000,000 Professional Liability: Per Claim: $1,000,000 Automobile Liability Combined Single Limit for any auto: $500,000 Per Occurrence CM shall further cause any approved subcontractor or sub -consultant to procure and carry, during the term of this Agreement, Professional Liability coverage, as specified above for CM, protecting City against direct losses caused by the professional negligence of the approved subcontractor or sub - consultant. The City shall be named as additional insured with respect to the Automobile Liability and Commercial General Liability on a primary and non contributory basis and shall be granted a waiver of subrogation under those policies. CM shall provide a Certificate of Insurance to the City as evidence of coverage. The Certificate shall provide 30 days notice of cancellation. A copy of the additional insured endorsement and waiver of subrogation attached to the policy will be included in the Certificate. Copies of all endorsements are required. CM shall elect to obtain worker's compensation coverage pursuant to Section 406.002 of the Texas Labor Code. Further, CM shall maintain said coverage throughout the term of this Agreement and shall comply with all provisions of Title 5 of the Texas Labor Code to ensure that CM maintains said coverage. CM may maintain Occupational Accident and Disability Insurance in lieu of Worker's Compensation. In either event, the policy must be endorsed to include a waiver of subrogation In favor of the City of Lubbock. If at any time during the life of the Agreement or any extension hereof, CM fails to maintain the required insurance in full force and effect, CM shall be in breach hereof and all work under the Agreement shall be discontinued immediately. ARTICLE IX. EMPLOYMENT OF AGENTS/RETAINING OF CONSULTANTS CM may employ or retain consultants, contractors, or third parties (any of which are referred to herein as "Sub -consultant j, to perform certain duties of CM provided that City approves the retaining of Sub -consultants. CM is at all times responsible to City to perform the Project as provided in this Agreement and CM is in no event relieved of any obligation under this Contract upon retainage of any approved Sub - consultant. Any agent and/or Sub -consultant retained and/or employed by CM shall be required to carry, for the protection and benefit of the City and CM and naming said third parties as additional insureds, insurance as described above in this Agreement. ARTICLE X. CONFIDENTIALITY CM shall retain all information received from or concerning the City and the City's business in strictest confidence and shall not reveal such information to third parties without prior written consent of the City, unless otherwise required by law. ARTICLE XI. INDEMNITY CM SHALL INDEMNIFY AND SAVE HARMLESS THE CITY OF LUBBOCK AND ITS ELECTED OFFICIALS, OFFICERS, AGENTS, AND EMPLOYEES FROM ALL SUITS, ACTIONS, LOSSES, DAMAGES, CLAIMS, OR LIABILITY OF ANY KIND, CHARACTER, TYPE, OR DESCRIPTION, INCLUDING WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEY'S FEES FOR INJURY OR DEATH TO ANY PERSON, OR INJURY TO ANY PROPERTY, RECEIVED OR SUSTAINED BY ANY PERSON OR PERSONS OR PROPERTY, TO THE EXTENT ARISING OUT OF, RELATED TO OR OCCASIONED BY, THE NEGLIGENT ACTS OF CM, ITS AGENTS, EMPLOYEES, AND/OR SUBCONSULTANTS, RELATED TO THE PERFORMANCE, OPERATIONS OR OMISSIONS UNDER THIS CONTRACT AND/OR THE USE OF OCCUPATION OF CITY OWNED PROPERTY. THE INDEMNITY OBLIGATION PROVIDED HEREIN SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. ARTICLE)al. COMPLIANCE WITH APPLICABLE LAWS CM shall comply with applicable federal, state and local laws, statutes, ordinances, rules and regulations relating, in any way, manner or form, to the activities under this Agreement, and any amendments thereto. ARTICLE XIII. NOTICE A. General. Whenever notice from CM to City or City to CM is required or permitted by this Agreement and no other method of notice is provided, such notice shall be given by (1) actual delivery of the written notice to the other party by hand (in which case such notice shall be effective upon delivery); (2) facsimile (in which case such notice shall be effective upon delivery); or (3) by depositing the written notice in the United States mail, properly addressed to the other party at the address provided in this article, registered or certified mail, return receipt requested, in which case such notice shall be effective on the third business day after such notice is so deposited. B. CM's Address: Vanir Construction Management, Inc. Joseph A. Mehula — President 4540 Duckhorn Drive Suite 300 Sacramento, CA 95834 Telephone: 916-575-8888 C. City's Address: With copy to: Gloria Barrera 20333 S.H.249 Suite 200 Houston, TX 77070 281-378-8073 City of Lubbock Attn: Wesley D. Everett — Director Facilities Management P. 0. Box 2000 1625 13th Street Lubbock, TX 79457 Telephone: 806-775-2275 Email: Weverett@mylubbock.us D. Change of Address. Either party may change its address or numbers for purposes of notice by giving written notice to the other party as provided herein, referring specifically to this Agreement, and EXECUTED as of the Effective Date hereof. CITY OF LUBBOCK Glen C. R e o Mayor ATTEST: Re ecca Garza Ci Secretary APPROVED AS TO CONTENT: (t6 6/6/ Facilities Management -W, wp;no Vanir Construction Management, Inc. 4;9� 399ph A. Mehula President setting forth such new address or numbers. The address or numbers shall become effective on the 15th day after such notice is effective. ARTICLE XIV. CITY -PROVIDED DATA City shall furnish to CM upon their request any available data in the possession of the City pertinent to CM's Services, so long as City is entitled to rely on such data for the performance of CM's Services under this Agreement (the "Provided Data'D. CM shall be entitled to use and rely, so long as such reliance is reasonable, upon all such Provided Data. ARTICLE XV. MISCELLANEOUS A. Captions. The captions for the articles and sections in this Agreement are inserted in this Agreement strictly for the parties' convenience in identifying the provisions to this Agreement and shall not be given any effect in construing this Agreement. B. Audit. CM shall provide access to its books and records to the City. The City may audit, at Its expense and during normal business hours, CM's books and records with respect to this Agreement between CM and City. CM. C. Records. CM shall maintain records that are necessary to substantiate the services provided by D. Assignability. CM may not assign this Agreement without the prior written approval of the City. E. Successor and Assigns. This Agreement binds and inures to the benefit of the City and CM, and in the case of City, its respective successors, legal representatives, and assigns, and in the case of CM, its permitted successors and assigns. F. Construction and Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. THIS AGREEMENT IS PERFORMABLE IN LUBBOCK COUNTY, TEXAS. THE PARTIES HERETO HEREBY IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS OF COMPETENT JURISDICTION OF THE STATE OF TEXAS, COUNTY OF LUBBOCK, FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS THAT ARE CONTEMPLATED HEREBY. G. Severability. If any provision of this Agreement is ever held to be invalid or ineffective by any court of competent jurisdiction with respect to any person or circumstances, the remainder of this Agreement and the application of such provision to persons and/or circumstances other than those with respect to which it is held invalid or ineffective shall not be affected thereby. H. Amendment. No amendment, modification, or alteration of the terms of this Agreement shall be binding unless such amendment, modification, or alteration is in writing, dated subsequent to this Agreement, and duly authorized and executed by CM and City. I. Entire Agreement. This Agreement, including Exhibits, attached hereto, contains the entire Agreement between the City and CM, and there are no other written or oral promises, conditions, warranties, or representations relating to or affecting the matters contemplated herein. In the event of conflicts or inconsistencies between this Agreement and its Exhibits, such conflicts or inconsistencies shall be resolved by reference to the documents in the following order of priority: the Agreement, Exhibits "A", "B", "C" and "D" J. No Joint Enterprise. Nothing contained herein shall be construed to imply a joint venture, joint enterprise, partnership, or principal —agent relationship between CM and the City. K. Documents Owned by City. Any and all documents, drawings and specifications prepared by CM as part of the Project hereunder, shall become the property of the City when CM has been compensated as set forth in Article II, above. CM shall make copies of any and all work products for its files. L. Notice of Waiver. A waiver by either City or CM of a breach of this Agreement must be in writing to be effective. In the event either party shall execute and deliver such waiver, such waiver shall not affect the waiving party's rights with respect to any other or subsequent breach. M. Third Parry Activities. Nothing in this Agreement shall be construed to provide any rights or benefits whatsoever to any party other than City and CM. N. Extent of Responsibility. CM does not guarantee that proposals, bids or actual project costs will not vary from CM's opinions of probable cost or that actual schedules will not vary from CM's projected schedules. CM shall not be responsible for: (1) construction means, methods, techniques, sequences, procedures, or safety precautions and programs in connection with the Project; (2) the failure of any contractor, subcontractor, vendor, or other Project participant, not under contract to CM, to fulfill contractual responsibilities to the Client or to comply with federal, state, or local laws, regulations, and codes; or (3) procuring permits, certificates, and licenses required for any construction unless such responsibilities are specifically assigned to CM in Exhibit "A", Additional Terms. 0. Unforeseen Circumstances. Except for Client's obligation to make payments, neither parry shall be in default hereunder to the extent such default is caused by a cause or circumstance beyond such parry's reasonable control. Upon written approval by the City, CM shall be entitled to an equitable adjustment as mutually agreed to by both Parties in schedule and compensation in the event such circumstances occur. P. Non -appropriation. All funds for payment by the City under this contract are subject to the availability of an annual appropriation for this purpose by the City. In the event of non -appropriation of funds by the City Council of the City of Lubbock for the goods or services provided under the contract, the City will terminate the contract, without termination charge or other liability, on the last day of the then - current fiscal year or when the appropriation made for the then current year for the goods or services covered by this contract Is spent, whichever event occurs first. If at any time funds are not appropriated for the continuance of this contract, cancellation shall be accepted by the CM on thirty (30) days prior written notice, but failure to give such notice shall be of no effect and the City shall not be obligated under this contract beyond the date of termination. EXHIBIT "A" Additional Terms ARTICLE 1: RELATIONSHIP OF THE PARTIES 1.1 Owner and Construction Manager The Construction Manager, hereinafter referred to as CM, shall be the Owner's agent in providing the Construction Manager's Services described in Article 3 of this Agreement. The CM and the Owner shall perform as stated in this Agreement and the CM and Owner accepts the relationship of trust and confidence between them, which is established herein. 1.1.1 Standard of Care The CM covenants with the Owner to fumish its skill and judgment with due care and in accordance with applicable federal, state and local laws and regulations which are in effect on the date of this Agreement first written above, in carrying out their responsibilities defined in Article 3 of this contract. 1.2 Owner and Design Professional The Owner shall enter into a separate agreement with one or more Design Professionals to provide architectural and engineering design for the Project. The Project is defined in Article 2 of this Agreement. 1.3 Owner and Contractors The Owner shall enter into separate contract with one or more Contractors for the construction of the Project. 1.4 Relationship of the CM to Other Promect Participants In providing the Construction Manager's Services described in this Agreement, the CM shall endeavor to maintain a working relationship with the Contractors and Design Professional on behalf of the Owner. However, nothing in this Agreement shall be construed to mean that the CM assumes any of the responsibilities or duties of the Contractors or the Design Professional. The Contractors are solely responsible for construction means, methods, sequence and procedures used in the construction of the Project and for the safety of its personnel and its operations and for performing in accordance with the Contractor's contract with the Owner. The Design Professional is solely responsible for the Project design and shall perform in accordance with the agreement between the Design Professional and the Owner. There are no third party beneficiaries of this Owner -CM agreement and no one except the parties to the CM agreement may seek to enforce its terms. ARTICLE 2: PROJECT DEFINITION The Project for which the Owner has contracted the services of the CM is described below: Renovation of the Citizen's Tower to house City Hall functions Renovation of the City Hall and Annex to serve Police Department functions Public Works Building -At the written authorization of the City of Lubbock, and in compliance with the applicable Articles of this Agreement. ARTICLE 3: CONSTRUCTION MANAGER'S BASIC SERVICES 3.1 CM Basic Services The CM shall perform the Basic Services described in this Article. It is not required that the Basic Services be performed in the sequence in which they are described. 3.2 Pre -Design Phase 3.2.1 Proiect Mana eg ment 3.2.1.1 Project Management Plan: The CM shall prepare a Project Management Plan for the Project. The Plan will be prepared with the full participation of the Owner and other relevant team members. The Plan shall consider the Owners schedule, cost and design requirements for the Project. The CM may develop various alternatives for the sequencing and management of the Project, make recommendations to the Owner and secure approval of a project strategy prior to finalizing the Management Plan. The Project Management Plan shall be presented to the Owner for review and acceptance. 3.2.1.2 Program Team Orientation: The CM shall conduct, or assist the Owner in conducting, an orientation session during which all project team members including the Design Professional will discuss and establish and/or confirm Project schedule, budgets, administrative and communication processes and other project parameters and requirements. 3.2.2 Time Management: 3.2.2.1 Master Schedule: The CM shall prepare a Master Schedule for each component of the Project. The Master Schedule shall specify the proposed start and finish dates for design(s), proposal and award activities, each construction contract, and the dates by which certain project activities must be complete. The CM shall submit the Master Schedule to the Owner for review and acceptance. 3.2.2.2 Design Phase Milestone Schedule: After the Owner accepts the Master Schedule the CM shall prepare the Milestone Schedule for the Design Phase. The Design Phase Milestone Schedule shall be used for evaluating progress during the Design Phase. 3.2.3 Cost Management 3.2.3.1 Project and Construction Budget: The CM shall prepare a Project and Construction Budget based on information provided by the Owner on the work required for the Project, and information developed by the CM as required by this contract. The CM shall review the budget with the Owner and Design Professional and the CM shall submit the Project and Construction Budget to the Owner for review and acceptance. The Project and Construction Budget shall be revised as directed by the Owner. 3.2.3.2 Cost Model: The CM shall establish a cost model that breaks the budget into its component parts by systems, CSI division areas or combinations thereof in consultation with the Owner and Design Professional. The cost models will be reviewed and updated at each design submittal stage. 3.2.3.3 Cost Analysis: The CM shall analyze and report to the Owner and the Design Professional the cost of various design and construction altematives. As a part of the cost analysis, the CM shall consider costs related to efficiency, usable life, maintenance, energy and operation. 3.2.4 Management Information System (MIS) 3.2.4.1 Establishing_ the Project MIS: The CM shall provide a collaborative Project Management Software (CPMS) to assist in establishing communications between the Owner, CM, Design Professional, Contractor and other parties on the Project. In implementing the CPMS, the CM shall interview the Owners key personnel and others in order to determine the type of information to be managed and reported, the reporting format, the desired frequency for distribution of the various reports, the degree of accessibility by potential users, and the security protocol for the system. The Owner shall receive a minimum of 4 licenses for their specific use. 3.2.4.2 Design Phase Procedures: The CM shall prepare procedures for reporting, communications and administration during the Design Phase, for approval by Owner. 3.3 Design Phase 3.3.1 Proiect Management 3.3.1.1 Revisions to the Project Management Plan: During the Design Phase the CM shall make recommendations to the Owner regarding revisions to the Project Management Plan. Revisions approved by the Owner shall be incorporated into the Plan by the CM and the Plan shall be re -submitted to the Owner for review and acceptance. 3.3.1.2 Design Phase Procedures Meeting: At the start of the Design Phase, the CM shall conduct a Project Conference attended by the Design Professional, the Owner and others. During the meeting, the CM shall review the Scope of the Project, the Project Management Plan, the Master Schedule, the proposed Design Phase Milestone Schedule, the Project and Construction Budget and the CPMS. 3.3.1.3 Design Phase Information: The CM shall monitor the Design Professional's compliance with the Design Schedule, Project Management Plan, and Design Phase Procedures; and the CM shall coordinate and expedite the flow of information between the Owner, Design Professional and others. 3.3.1.4 Project Meetings: The CM shall participate in periodic project meetings attended by the Owner, design professional and others. Such meetings shall serve as a forum for the exchange of information concerning the Project and review of design progress. The CM shall review minutes of these meetings and advise the Owner and Design Professional of any concerns related to project cost, quality or schedule 3.3.1.5 Review of Design Documents & Design Recommendations: The CM shall review the design documents for clarity, consistency, constructability and coordination. The results of the review shall be provided in writing and as notations on the documents to the Owner. The CM shall also make recommendations to the Owner with respect to constructability, construction cost sequence of construction, construction duration, and separation of the contracts for various projects into categories of the work. However, the CM is not responsible for providing, nor does the CM control, the Project design, or the contents of the design documents. By performing the reviews described herein, the CM is not acting in a manner so as to assume responsibility or liability, in whole or in part, for all or any part of the Project design and design documents. The CM's actions in reviewing the Project design and design documents and in making recommendations as provided herein are advisory only to the Owner. The Architect is not a third party beneficiary of the CM's work described in this paragraph and the Architect remains solely responsible for the contents of design drawings and design documents. 3.3.1.6 Owner's Design Reviews: The CM shall expedite the Owners design reviews by compiling and conveying the Owners comments to the Design Professional. 3.3.1.7 Approvals by Regulatory Agencies: The CM shall coordinate transmittal of documents to regulatory agencies for review and shall advise the Owner of potential problems in completion of such reviews. 3.3.1.8 General Conditions: The CM shall assist the Owner in the preparation of the General Conditions and other front-end documents for the Construction Contracts. 3.3.1.9 Proiect Funding: The CM shall assist the Owner in preparing documents concerning the Project and Construction Budget for use in obtaining or reporting on project funding. The documents shall be prepared in a form approved by the Owner. 3.3.2 Time Management 3.3.2.1 Revisions to Master Schedule: While performing the services provided in paragraphs 3.3.1.1, 3.3.1.2 and as necessary throughout the Design Phase, the CM shall recommend revisions to the Master Schedule. 3.3.2.2 Monitoring the Design Phase Milestone Schedule: While performing the services provided in paragraph 3.3.1.3 and 3.3.1.4, the CM shall monitor compliance with the Design Phase Milestone Schedule, The CM shall make recommendations to the Owner if progress is not in compliance with the schedule. 3.3.3 Cost Management Task 3.3.3.1 Project and Construction Budget Revision: The CM shall make recommendations to the Owner on the impact of design changes that may result in revisions to the Project and Construction Budget project schedule and established project strategy. 3.3.3.2 Cost Control and Estimating: The CM shall prepare an estimate of the construction cost for each submittal of design drawings and specifications from the Design Professional. The submittals are anticipated to occur at Schematic Design, Design Development, 50% Construction Documents and 95% Construction Documents. The estimate for each submittal shall be accompanied by a report to the Owner and Design Professional identifying variances from the Project and Construction Budget. The CM shall coordinate and assist in expediting the activities of the Owner and Design Professional when changes to the design are required to remain within the Project and Construction Budget. 3.3.3.3 Value Analysis Studies: The CM shall provide value analysis studies on major construction components as directed by the Owner. The results of these studies shall be in report form and shall be distributed to the Owner and Design Professional. 3.3.4 Collaborative Project Management Software (CPMS) 3.3.4.1 Schedule Reports: In conjunction with the services provided by paragraph 3.3.2.1, the CM shall prepare and distribute Schedule Update Reports that shall compare actual progress with scheduled progress for the Design Phase and the overall Project 3.3.4.2 Project Cost Reports: The CM shall prepare and distribute Project Cost Reports that shall indicate estimated costs compared to the Project and Construction Budget. 3.3.4.3 Cash Flow Report: The CM shall periodically prepare and distribute a Cash Flow Report for the Owner. 3.3.4.4 Design Phase Change Order Report: The CM shall prepare and distribute Design Phase Change Order Reports that shall list all Owner -approved change orders as of the date of the report and shall state the effect of the change orders on the Project and Construction Budget and the Master Schedule. 3.3.4.5 Construction Phase Procedures: The CM shall prepare procedures for reporting, communications, and administration during the Construction Phase for approval by Owner. 3.4 Proposal Procurement Phase 3.4.1 Project Management 3.4.1.1 Pre -Qualifying Proposers: The CM shall assist the Owner in developing lists of possible Proposers. The CM shall prepare a Proposers list for each package for approval by Owner. 3.4.1.2 Proposers Interest Campaign: The CM shall conduct a telephonic and correspondence campaign to attempt to increase interest among qualified Proposers. 3.4.1.3 Notices and Advertisements: The CM shall assist the Owner in preparing and placing notices and advertisements to solicit proposals for the Project 3.4.1.4 Delivery of Proposal Documents: The CM shall assist the City's Purchasing Department and /or the Design Professional in coordinating the delivery of proposal documents to the Proposers. 3.4.1.5 Pre -Proposal Conferences: In conjunction with the Owner and Design Professional, the CM shall conduct Pre -Proposal Conferences. These conferences shall be forums for the Owner, CM, and Design Professional to explain the Project requirements to the Proposers, including information concerning schedule requirements, time and cost control requirements, access requirements, the Owner's administrative requirements, technical, and other information. 3.4.1.6 Not Used. 3.4.1.7 Addenda: The CM shall receive from the Design Professional a copy of all Addenda and review with the Owner's Representative. The CM shall review Addenda for clarity, and consistency. By performing the reviews described herein, the CM is not acting in a manner so as to assume responsibility or liability, in whole or in part, for all or any part of the Project design contents or the design documents. 3.4.1.8 Proposal Opening and Recommendations: The CM shall assist the Owner in conducting the proposal opening and together with the Owner's Representative and Design Professional shall evaluate the proposals for responsiveness and price. The CM, the Owner's Representative and the Design Professional will develop recommendations concerning the acceptance or rejection of proposals. 3.4.1.9 Post -proposal Conference: The CM, the Owner's Representative and the Design Professional shall conduct a Post -proposal Conference with highest ranked proposer to review contract award procedures, schedules, project staffing, and other pertinent issues. 3.4.1.10 Not Used. 3.4.1.11 Pre -Construction Conference: In consultation with the Owner and Design Professional, the CM shall conduct a Pre -Construction Conference during which the Owner's Representative, the CM, and the Design Professional shall review the Project organization, communication protocols, security, responsibilities and other general project procedures. 3.4.1.12 Permits. Insurance and Labor Affidavits: The CM shall assist the Owner in verifying that the Contractor has secured the building permits, bonds, insurance and waivers as required by the Contract Documents. Such action by the CM shall not relieve the Contractor or the Owner of their responsibilities to comply with the provisions of the Contract Documents. 3.4.2 Time Management: The CM shall monitor compliance with the Master Schedule and recommend revisions to the Owner as appropriate. 3.4.3 Cost Management 3.4.3.1 Analyzing Proposals: Upon receipt of the proposals, the CM, with the Owner's Representative and the Design Professional, shall evaluate the proposals, including alternate prices and unit prices, and shall develop recommendations in regard to the award of each construction contract. 3.4.4 Collaborative Proiect Management Software (CPMS) 3.4.4.1 Project Cost Reports: The CM shall prepare and distribute Project Cost Reports during the Procurement Phase. The Reports shall specify actual award prices and construction costs for the Project compared to the Project and Construction Budgets. 3.4.4.2 Cash Flow Reports: The CM shall prepare and distribute Cash Flow Reports at completion of the Procurement Phase. The Reports shall be based on actual award prices and construction costs for the Project and the Reports shall specify actual cash flow compared to projected cash flow. 3.5 Construction Phase 3.5.1 Proiect Management 3.5.1.1 On -Site Management and Construction Phase Communication Procedures: The CM shall provide and maintain a management team on the Project site to provide contract administration as an agent of the Owner and to establish and implement coordination and communication procedures among the CM, Owner, Design Professional, and Contractors. 3.5.1.2 Construction Administration Procedures: The CM shall establish and implement procedures for expediting and processing requests for information, shop drawings, material and equipment sample submittals, contract schedule adjustments, change orders, substitutes and payment requests and the maintenance of Logs for tracking all relevant information related to the above. The CM shall maintain daily job reports. As the Owner's agent and representative at the construction site, if provided for in the Construction Phase Procedures approved by the Owner, the CM shall be the party to whom requests for information, submittals, Contractor schedule adjustments, substitutes, change order requests and payment applications shall be submitted. 3.5.1.3 Proiect Site Meetings: Periodically the CM shall conduct coordination meetings at the Project site with the Contractor, the Owner, and the Design Professional, (if provided for in the Agreement between the Owner and the Design Professional). The CM shall record, transcribe, and distribute minutes to all attendees, the Owner and Design Professional. 3.5.1.4 Coordination of Other Independent Consultants: Technical inspection and testing provided by the Design Professional or others shall be coordinated by the Contractor. The CM shall be provided a copy of all inspection and testing reports on the day of the inspection or test or within a reasonable time period. The CM is not responsible for providing, nor does the CM control, the actual performance of technical inspection and testing. The CM is performing a coordination function and is not acting in a manner so as to assume responsibility or liability, in whole or in part, for any part of such inspection and testing. 3.5.1.5 Review of Requests for Changes to the Contract Time and Price: The CM shall review the contents of requests for changes to the contract time or price submitted by a Contractor, assemble information concerning the request, and endeavor to determine the cause of the requests and make recommendations to the Owner with respect to acceptance of the requests. The CM will implement the Owner's decisions regarding all requests for changes. All changes to the Agreement between the Owner and Contractor shall be only by change orders executed by the Owner. 3.5.1.6 Record Drawings. Operation, and Maintenance Materials: As required by the Contract Documents, the CM shall receive from the Contractor As -Built record drawings, operation and maintenance manuals, warranties and guarantees for materials and equipment installed on the Project, and review such documents for completeness and submit documents to the Owner. 3.5.1.7 Substantial Completion: In consultation with the Design Professional and Owners inspectors (when applicable), the CM shall review the contractors request for substantial completion and final completion and recommend to the Owner when the Project and the Contractor's Work has achieved substantial and final completion. The CM shall, jointly with the architect, prior to issuing a Certificate of Substantial Completion, compile a list of incomplete work which does not conform to the Contract Documents based on input from the Design Professional and Owner's inspectors (when applicable). This list shall be attached to the Certificate of Substantial Completion. The CM shall issue the Certificate of Substantial Completion and Certification of Final Completion to the Contractor. 3.5.1.8 Final Payment: In consultation with the Design Professional and Owner's inspector (when applicable), the CM shall provide to the Owner a written recommendation regarding final payment to the Contractor. 3.5.2 Time Management 3.5.2.1 Master Schedule: The CM shall adjust and update the Master Schedule and distribute copies to the Owner and Design Professional. Recommendations for such adjustments to the Master Schedule shall be made to the Owner, and upon Owners approval shall be incorporated by the CM. 3.5.2.2 Contractor's Construction Schedule: The CM shall review each Contractors Construction Schedule and shall verify that the schedule is prepared in accordance with the requirements of the Contract Documents and that it establishes completion dates that comply with the requirements of the Contract Documents. If changes in the Master Schedule maintained by the CM are appropriate, the CM shall make such modifications as approved by the Owner. 3.5.2.3 Construction Schedule Reports: The CM shall, on a monthly basis, review the progress of construction of each Contractor, shall evaluate the percentage complete of each construction activity as indicated in the Contractor's Construction Schedule and shall review such percentages with the Contractor. This evaluation shall serve as data for input to the periodic Construction Schedule Report that shall be prepared and distributed to the Owner. The Report shall indicate the actual progress compared to scheduled progress and shall serve as the basis for the progress payments to the Contractor. The CM shall advise and make recommendations to the Owner concerning the alternative courses of action that the Owner may take in its efforts to achieve contract compliance by the Contractor. 3.5.2.4 The CM Review of Time Extension Requests: Prior to the issuance of change orders, the CM shall advise the Owner as to the effect on the Master Schedule of time extensions requested by the Contractor. 3.5.2.5 Recovery Schedules: The CM shall review the recovery schedule submitted by the Contractor for compliance with the Contract Documents. 3.5.3 Cost Management 3.5.3.1 Change Order Control: The CM shall establish and implement a change order control system. All proposed change orders shall first be described in detail by the CM, with the assistance of the Design Professional when necessary, in a request for a proposal to the Contractor, and shall be accompanied by technical drawings and specifications prepared by the Design Professional. In response to the request for a proposal, the Contractor shall submit to the CM for evaluation detailed information concerning the cost and time adjustments, if any, as may be necessary to perform the proposed change work order. The CM shall discuss the proposed change order with the Contractor and endeavor to determine the Contractors basis of the cost and time impacts of performing the work. The CM shall make recommendations to the Owner of whether the CM believes the change in the work is in the best interest of the project, prior to the Owner's execution of change orders. The CM shall verify that change order work and adjustments of time, if any, required by approved change orders have been incorporated into the Contractor's Construction Schedule. 3.5.3.2 Cost Records: In instances when a lump sum or unit price is not determined prior to performing work described in a request for a proposal as provided in paragraph 3,5.3.2, the CM shall request from the Contractor records of the cost of payroll, materials and equipment and the amount of payments to subcontractors incurred by the Contractor in performing the work. 3.5.3.3 Progress Payments: In consultation with the Design Professional, the CM shall review the payment applications submitted by each Contractor and determine whether the amount requested reflects the progress of the Contractor's work. The CM shall make appropriate adjustments to each payment application and shall prepare and forward to the Owner a Progress Payment Report. The Report shall state the total contract price, payments to date, current payment requested, retainage and actual amounts owed for the current period. Included in this report shall be a Certificate of Payment that shall be signed by the CM and delivered to the Owner. 3.5.4 Collaborative Proiect Management Software (CPMS 3.5.4.1 Schedule Update Reports: The CM shall prepare and distribute Schedule Update Reports during the Construction Phase. The Reports shall compare the actual construction dates to scheduled construction dates of each separate contract, milestone dates (if any), and to the Master Schedule for the Project 3.5.4.2 Proiect Cost Reports: The CM shall prepare and distribute Project Cost Reports during the Construction Phase. The Reports shall specify actual Project and construction costs compared to the Owner - approved Project and Construction Budget. 3.5.4.3 Proiect and Construction Budget Revision: The CM shall make recommendations to the Owner on the impact of construction changes that may result in revision to the Project and Construction Budget. 3.5.4.4 Cash Flow Reports: The CM shall periodically prepare and distribute Cash Flow Reports during the Construction Phase. The Reports shall specify actual cash flow as compared to projected cash flow. 3.5.4.5 Progress Payment Reports: The CM shall prepare and distribute the Progress Payment Reports to the Owner. The Reports shall state the total construction contract price, payment to date, current payment requested, retainage, and actual amounts owed this period. A portion of this Report shall be a Certificate of Payment that shall be signed by the CM, and delivered to the Owner for use by the Owner in making payments to the Contractor. 3.5.4.6 Change Order Reports: The CM shall periodically prepare and distribute Change Order Reports during the Construction Phase. The Report shall list all Owner -approved change orders by number, a brief description of the change order Work, the cost established in the change order time impacts, if any, and percent of completion of the change order work. 3.5.4.7 Contractor's Safety Program Report: The CM shall verify that safety programs are submitted to the Owner by each contractor, as required by their Contract Documents. The CM shall not be responsible for or have any liability in whole or in part for Contractor implementation of or compliance with Contractor safety programs and safety laws, regulations, etc., nor shall the CM be responsible for the adequacy, or completeness, of Contractor Safety Programs or the Contractor's compliance and performance thereof. The CM has no responsibility for review of safety programs. 3.6 Post -Construction Phase 3.6.1 Protect Management 3.6.1.1 Record Documents: The CM shall coordinate and expedite submittals of information from the Contractors for as -built record drawings and specification preparation and shall coordinate and expedite the transmittal of Record Documents to the Owner. 3.6.1.2 Organize and Index Operation Maintenance Materials: Prior to the Final Completion of the Project, the CM shall compile manufacturers' operations and maintenance manuals, warranties and guarantees as received from the Contractors, and submit such documents to the Owner. 3.6.1.3 Occupancv Permits: The CM shall assist the Owner in obtaining an Occupancy Permit by accompanying governmental officials during inspections of the Project, preparing and submitting documentation to governmental agencies and coordinating final testing and other activities. 3.6.2 Cost Management 3.6.2.1 Change Orders: The CM shall continue to provide services related to change orders as specified in paragraph 3.5.3.2 during the Post -Construction Phase. 3.6.3 Management Information Systems (MIS) 3.6.3.1 Close-out Reports: At the conclusion of the Project, the CM shall prepare final Project Cost and close-out reports. 3.7 Additional Services 3.7.1 At the request of the Owner, the CM shall perform Additional Services and the CM shall be compensated for same as provided in Article 7 of this Agreement. The CM shall perform Additional Services only after the Owner and CM have executed a written Amendment to this Agreement providing such services. Additional services may include: 3.7.1.1 Services related to investigation, appraisal or evaluation of existing conditions, facilities or equipment or determination of the accuracy of existing drawings or other information furnished by the Owner; 3.7.1.2 Services related to determination of space needs; 3.7.1.3 Preparation of Architectural programs; 3.7.1.4 Services related to building site investigations and analysis; 3.7.1.5 Services related to tenant or rental spaces; 3.7.1.6 Preparation of a Project financial feasibility study; 3.7.1.7 Preparation of financial, accounting or MIS reports not provided under Basic Services; 3.7.1.8 Performance of technical inspection and testing; 3.7.1.9 Preparation of an Operations and Maintenance Manual; 3.7.1.10 Services related to recruiting and training of maintenance personnel; 3.7.1.11 Services related to claims analysis; 3.7.1.12 Consultation regarding replacement of Work damaged by fire or other cause during construction and furnishing services in connection with the replacement of such work; 3.7.1.13 Services made necessary by the default of the Contractor; 3.7.1.14 Preparation for and serving as a witness in connection with any public or private hearing or arbitration, mediation or legal proceeding; 3.7.1.15 Assisting the Owner in public relations activities, including preparing information for and attending public meetings; and 3.7.1.16 Quality Review: The CM shall establish and implement a program to monitor the quality of the construction. The purpose of the program shall be to assist in guarding the Owner against defects and deficiency in the work of the Contractor. The CM may reject work and transmit to the Owner and Contractor a notice of nonconforming work when it is the opinion of the CM, Owner, or Design Professional that the Work does not conform to the requirements of the Contract Documents. The CM is not authorized as a part of this service to change, revoke, alter, enlarge, relax, or release any requirements of the Contract Documents or to approve or accept any portion of the Work not performed in accordance with the Contract Documents. No action taken by the CM shall relieve any or all of the Contractors from their obligation to perform their work in strict conformity with the Contract Documents and in strict conformity with all other applicable laws, rules, and regulations. Such limits of authority shall be made clear and enforced by the Owner in the Contractor's Contract Documents. Communication between the CM and Contractor with regard to Quality Review shall not in any way be construed as binding the CM or Owner as releasing the Contractor from the fulfillment of any of the terms of his Contract Documents. The CM is not responsible for, nor does the CM control, the means and methods of construction for the Project. It is understood that the CM's action in providing Quality Review as stated herein is a service to the Owner and by performing as provided herein, the CM is not acting in a manner so as to assume responsibility or liability, in whole or in part, for all or any part of the construction work for the Project. 3.7.1.17 Upon written authorization by the City of Lubbock, the CM will provide the services described in ARTICLE 3 of this contract for the New Public Works building. In order to maximize the CM's staffing efficiencies that will be in place for the Basic Services, the start date for the New Public Works Building shall be no later than October 1, 2017 and shall complete Closeout no later than September 30, 2019. If this start and completion time is not feasible and the City of Lubbock desires the CM to provide services for the Public Works Building, the CM will provide a revised proposal for services. The Owner shall pay a fee not to exceed Four Hundred, Ninety -Eight Thousand, Two Hundred Fifty -Two dollars ($498.252). The fee breakdown is referenced in Exhibit 'D'. This breakdown outlines the various positions, billing rates for each position and the estimated hours and timeframes for each position during contract duration. In addition to the aforementioned fee, a reasonable expense allowance shall be provided in the amount of Eleven Thousand, Nine Hundred dollars ($11.900). Allowable reimbursable expenses are indicated in Appendix 'II'. Reimbursable expenses will be billed to the Owner at direct cost. The CM will not exceed the reimbursable expenses allowance without prior written authorization. The total cost to the Owner for the Basic Services described in this Agreement shall not exceed Five Hundred Ten Thousand, One Hundred and Fifty Two dollars ($510,152) (sum of maximum fee and expenses) without the written agreement of the Owner. ARTICLE 4: DURATION OF THE CONSTRUCTION MANAGER'S SERVICES 4.1 The duration of the CM's Basic Services under this Agreement shall be from the date of execution of this contract or the date of Notice to Proceed issued by the Owner to the CM, through November 30, 2018 unless the CM is authorized to provide services for the Public Works Building which would extend the duration through September 30, 2019. 4.2 Extensions to duration of the CM's basic services shall be dealt with as outlined in Article 5. ARTICLE 5: CHANGES IN THE CONSTRUCTION MANAGER'S BASIC SERVICES AND ADDITIONAL COMPENSATION 5.1 Owner Changes 5.1.1 The Owner, without invalidating this Agreement, may make changes in the CM's Basic Services specified in Article 3 of this Agreement. The CM shall promptly notify the Owner of changes that increase or decrease the CM's compensation or the duration of the CM's Basic Services or both. 5.1.2 Additional Compensation and Changes in Duration The CM shall be entitled to receive additional compensation when the scope of Basic Services is increased or extended through no fault of the CM. If the scope or the duration of the CM's Basic Services is extended, the CM shall be entitled to receive additional compensation. A written request for additional compensation shall be given by the CM to the Owner within thirty (30) days of the occurrence of the event giving rise to such request. 5.1.3 Chances in the CM's Basic Services Changes in the CM's Basic Services or duration of the Agreement, and entitlement to additional compensation, shall be made by a written Amendment to this Agreement executed by the Owner and the CM. The Amendment shall be executed by the Owner and CM prior to the CM performing the Services required by the Amendment. The CM shall proceed to perform the Services required by the Amendment only after receiving written notice directing the CM to proceed. 5.1.4 Payment of Additional Compensation The CM shall submit invoices for additional compensation with its invoice for Basic Services and payment shall be made pursuant to the provisions of Article 7 of this Agreement. ARTICLE 6: OWNER'S RESPONSIBILITIES 6.1 The Owner shall provide to the CM complete information regarding the Owner's requirements for the Project. 6.2 The Owner shall examine information submitted by the CM and shall render decisions pertaining thereto promptly. 6.3 The Owner shall furnish legal, accounting, contract review and insurance counseling services as may be necessary for the Project. 6.4 The Owner shall furnish insurance for the Project as specified in Article 8. 6.5 If the Owner observes or otherwise becomes aware of any fault or defect in the Project or the CM's services, or any nonconformity with the Contract Documents, the Owner shall give prompt written notice thereof to the CM. 6.6 The Owner shall furnish required information and approvals and perform its responsibilities and activities in a timely manner to facilitate orderly progress of the work in cooperation with the CM, consistent with this Agreement and in accordance with the planning and scheduling requirements, and budgetary restraints of the Project. 6.7 The Owner shall retain one or more Design Professionals whose services, duties, and responsibilities shall be described in a written agreement between the Owner and Design Professional. The services, duties, and responsibilities set out in the agreement between the Owner and the Design Professional shall be compatible and consistent with this Agreement and the Contract Documents. The Owner shall, in its agreement with the Design Professional, require that the Design Professional perform its services in cooperation with the CM, consistent with this Agreement and in accordance with the planning and scheduling requirements and budgetary restraints of the Project as determined by the Owner and documented by the CM. The Owner shall fumish a copy of the Owner-A/E Agreement and any amendments to the CM, that designate the contractual responsibilities of all parties. 6.8 Not Used. 6.9 At the request of the CM, sufficient copies of the Contract Documents shall be furnished to the CM to permit the timely performance of services, by the Owner at the Owner's expense. 6.10 The Owner shall, in a timely manner secure, submit and pay for necessary approvals, easements, assessments, permits and charges required for the construction, use or occupancy of permanent structures or for permanent changes in existing facilities. 6.11 The primary means of communication with the Contractor(s) during construction will be coordinated by and through the CM. The Owner, at its discretion, may communicate to the Contractor(s) directly, but will endeavor to include the CM in this communication. 6.12 The Owner shall endeavor to send to the CM and shall require the Design Professional to send to the CM, copies of all notices and communications sent to or received by the Owner or Design Professional relating to the Project. During the Construction Phase of the Project, the Owner shall require that the Contractors submit all notices and communication relating to the Project directly to the CM. 6.13 The Owner shall designate an officer, employee, or other authorized representatives to act in the Owner's behalf with respect to the Project. The Owner's representative for the Project is the City Manager or their designee.. This representative shall have the authority to approve changes in the scope of the Project and shall be available during working hours and as often as may be required to render decisions and to furnish information in a timely manner. 6.14 The Owner shall fulfill all their contract obligations in their contract with the A/Es and contractor(s), including making periodic progress payments after considering recommendations for such payments by the CM. ARTICLE 7: COMPENSATION AND PAYMENT 7.1 Compensation for Basic Services The Owner shall compensate the CM for performing the Basic Services described in Article 3, within timeframes established in Article 4 and as described in Exhibit A as follows: 7.1.1 A fee not to exceed Two Million, Twenty -Five Thousand, One Hundred and Fifteen dollars ($2 025 115 . The fee breakdown is indicated in Exhibit "C" (Citizen's Tower and Police Department Staffing Plan). This breakdown outlines the various positions, billing rates for each position and the estimated hours and timeframes for each position during contract duration. 7.1.2 In addition to the aforementioned fee, a reasonable expense allowance shall be provided in the amount of Sixty Seven Thousand, Five Hundred and Fifty dollars ($67,5501. Allowable reimbursable expenses are indicated in Appendix "B." Reimbursable expenses will be billed to the Owner at direct cost. The CM will not exceed the reimbursable expenses allowance without prior written authorization. 7.1.3 The total cost to the Owner for the Basic Services described in this Agreement shall not exceed Two Million, Ninety Two Thousand, Six Hundred and Sixty Five dollars ($2 092 665 (sum of maximum fee and expenses) without the written agreement of the Owner. 7.2 Payment Payment to be made by the Owner to the CM for the cost of providing services will be based on monthly invoices which will set forth the hours actually worked during the billing period. The billing rates indicated in Appendix "A" will be applied against the actual hours for each position to arrive at the total fee for each month. Reimbursable expenses incurred during the billing period and during previous billing periods and not yet invoiced will be marked up per subparagraph 7.1.2 to arrive at the total reimbursable expenses. 7.2.1 The CM will submit an invoice monthly to the Owner for the fee and reimbursable expenses incurred for the billing period. The Owner shall make payment to the CM of one hundred percent (100%) of the approved invoiced amount within thirty (30) days of the Owner's receipt of the invoice. 7.2.2 Payments due to the CM that are unpaid for more than sixty (60) days from the date of the CM's invoice shall bear interest at the prevailing rate. 7.3 Accountina Records Record of the CM's personnel expense, consultant fees and direct expenses pertaining to the Project shall be maintained on the basis of generally -accepted accounting practices and shall be available for inspection by the Owner or the Owner's representative at mutually convenient times for a period from the date of this Agreement through two years after completion of the Construction Phase Basic Services. 7.4 Compensation for Additional Services The CM shall be compensated and payments shall be made for performing Additional Services in the same manner as provided in Article 7 for Basic Services. There shall be an increase in the fee set out in Paragraph 7.1.1 in an amount which is mutually agreeable between the Owner and CM. There can be an increase in the reimbursable allowance set out in Paragraph 7.1.2, as appropriate and mutually agreed to by the Parties. ARTICLE 8: INTENTIONALLY OMITTED ARTICLE 9: INTENTIONALLY OMITTED ARTICLE 10: INTENTIONALLY OMITTED ARTICLE 11: ADDITIONAL PROVISIONS 11.1 Confidentiality 11.1.1 The CM shall not disclose or permit the disclosure of any confidential information, except to its agents, employees and other consultants who need such confidential information in order to properly perform their duties relative to this Agreement. 11.2 Limitations and Assignment 11.2.1 The Owner and the CM each binds themselves, their successors, assigns and legal representatives to the terms of this Agreement. 11.2.2 Neither the Owner nor the CM shall assign or transfer its interest in this Agreement without the written consent of the other, except that the CM may assign accounts receivable to a commercial bank for securing loans without approval of the Owner. 11.3 Governing Law 11.3.1 Unless otherwise provided, this Agreement shall be governed by the law of the State of Texas, where the Project is located. 11.4 Extent of Agreement 11.4.1 This Agreement represents the entire and integrated agreement between the Owner and the CM and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both the Owner and the CM. Nothing contained in this Agreement is intended to benefit any third party. The Contractors and Design Professionals are not intended third party beneficiaries of this Agreement. 11.5 Severability 11.5.1 If any portion of this Agreement is held as a matter of law to be unenforceable, the remainder of this Agreement shall be enforceable without such provisions. 11.6 Meaning of Terms 11.6.1 References made in the singular shall include the plural and the masculine shall include the feminine or the neuter. 11.7 Notices 11.7.1 All Notices required by this Agreement or other communications to either party by the other shall be deemed given when made in writing and deposited in the United States Mail, first class, postage prepaid, addressed as follows: To the Owner: City of Lubbock 1625 13th Street Room 204 Lubbock,Texas 79401 Attn: Director of Facilities Management To the CM: Vanir Construction Management, Inc. Attn: Joseph A. Mehula 4540 Duckhom Drive, Suite 300 Sacramento, CA 95834 With Copy to: Gloria Barrera Vanir Construction Management, Inc. 20333 S.H. 249, Suite 200 Houston, Texas 77070 APPENDIX "I" Implementation Plan and Rate Schedule Follow SCHEDULE OF RATES FOR PERSONNEL COSTS Cost per hr. from Cost per hr. from Cost per hr. from Cost per hr. from Position Sep 2015-May June 2016-May June 2017-May June 2018-May 2016 2017 2018 2019 Project Executive $200 $206 $212 $219 $225 Project Director $188 $193 $199 $205 $211 Senior Const Manager $180 $185 $191 $197 $203 Design Manager $175 $180 $186 $191 $197 Project Engineer $110 $113 $117 $120 $124 Move Coordinator $100 $103 $106 $109 $113 Estimating Manager $150 $155 $159 $164 $169 Constructability Review $150 $155 $159 $164 $169 Furniture Fixture & Equipment Specialist $95 $98 $101 $104 $107 Administrative Asst. $85 $88 $90 $93 $96 Controls $125 $129 $133 $137 $141 Implementation plans for Citizen's Tower, Police Department and Public Works Building follow this page, 23 APPENDIX "11" ALLOWABLE REIMBURSABLE EXPENSES The CM will be reimbursed for expenses related to Basic Services for Citizen's Tower and Police Department Buildings up to a maximum amount of Sixty Seven Thousand, Five Hundred and Fifty Dollars ($67,550). The items allowable for reimbursement are as follows: 1. Cost of printing and distributing monthly reports. 2. Cost of project related transportation, lodging and meals. 3. Cost of office supplies. 4. Cost of telephone hook-up and services. 5. Cost of computer (hardware and software), fax machine, copy machine and other furnishings and equipment for job site as approved by the Owner in advance. 6. Cost of postage, UPS, Federal Express, etc. 7. Cost of project signs. S. Cost of other items as required, with prior approval from Owner. Reimbursable expenses up to a maximum amount of Eleven Thousand, Nine Hundred Dollars ($11,900) related to the Public Works Building are allowable as noted above. Page 24 of 27 Vanlr Agreement Citizens Tower & City Hall CM EXHIBIT "B" Insurance Certificate Page 25 of 27 Vanir Agreement Citizens Tower & City Hall CM CERTIFICATE OF INTERESTED PARTIES FORM 1295 lofl Complete Nos. 1- 4 and 6 if there are interested parties. Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties. OFFICE USE ONLY CERTIFICATION OF FILING Certificate Number: 2016-9019 Date Filed: 02/04/2016 Date Acknowledged: 02/04/2016 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. Vanir Construction Management, Inc. Houston, TX United States 2 Name of governmental entity or state agency that is a party to the contract for which the form is being filed. City of Lubbock 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the goods or services to be provided under the contract. 12326 Construction Management 4 Name of Interested Party City, State, Country (place of business) Nature of interest (check applicable) Controlling Intermediary 5 Check only if there is NO Interested Party. X 6 AFFIDAVIT I swear, or affirm, under penalty of perjury, that the above disclosure is true and correct. Signature of authorized agent of contracting business entity AFFIX NOTARY STAMP / SEAL ABOVE Sworn to and subscribed before me, by the said this the day of 20 , to certify which, witness my hand and seal of office. Signature of officer administering oath Printed name of officer administering oath Title of officer administering oath Forms provided by Texas Ethics Commission www.ethics.state.tx.us Versinn V1.n.R4944 CERTIFICATE OF INTERESTED PARTIES FORM 1295 lofl Complete Nos. 1- 4 and 6 if there are interested parties. OFFICE USE ONLY Complete Nos. 1, 2, 3, 5, and 6 if there are no interested parties. CERTIFICATION OF FILING Certificate Number: 1 Name of business entity filing form, and the city, state and country of the business entity's place of business. 2016-9019 Vanir Construction Management, Inc. Houston, TX United States Date Filed: 02/04/2016 2 Name of governmental entity or state agency that is a party to the contract for which the form is being filed. City of Lubbock Date Acknowledged- 3 Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a description of the goods or services to be provided under the contract. 12326 Construction Management 4 Name of Interested Parry City, State, Country (place of business) Nature of interest (check applicable) Controlling Intermediary 5 Check only if there is NO Interested Parry. X 6 AFFIDAVIT I swear, or affirm, under penalty of perjury, that the above disclosure is true and correct. DEBORAH M. SATTERLEE - °' Notary Public, State of Texas z+p My Commission Expires December 24, 2018 Signature of authorized agent of contracting business entity AFFIX NOTARY STAMP / SEAL ABOVE Sworn to and subscribed before me, by the said �l dl -� .a rre� this the �h day 20 40 , to certify which, witness my hand and seal of office. IJAS-zAA)4 � Jehorckh Signature of officer administering oath Printed name of officer administering oath Title of officer administering oath Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.34944