CMAR_Model_Contracts.pdf

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MODEL CONTRACT - PRE-CONSTRUCTION PHASE

SERVICES

County of Orange, John Wayne Airport RFP 280-3010603-GK

Construction Manager-at-Risk (CMAR) – Facilities Security Improvements

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MODEL CONTRACT MA-280-TBD

FOR

PRE-CONSTRUCTION PHASE SERVICES

This Contract made and entered into this by and between the County of Orange, a political subdivision of the State of California, hereinafter referred to as “County” and CONTRACTOR NAME with a place of business at ADDRESS, hereinafter designated the "Construction Manager-at-Risk Entity" or

“CMARE,” with County and CMARE sometimes individually referred to as “Party,” or collectively referred to as “Parties.”

CONTRACT

NOW THEREFORE, in consideration of the mutual covenants and considerations hereinafter contained, it is agreed by and between the County and the CMARE as follows:

ARTICLE 1 – TERMS AND DEFINITIONS

1. “Addenda” means written or graphic instruments issued prior to the submittal of the GMP

(hereinafter defined) Proposal(s), which clarify, correct, or change the GMP Proposal(s) requirements.

2. “Allowance” means an estimated dollar amount determined jointly by the County and the CMARE that is included in the Contract for the purpose of encumbering funds to cover the cost of items which have not been specified explicitly in the Contract. Allowance items may not be completely defined when the Contract is executed but may be necessary to complete the project. Contract allowances are controlled by the County.

3. “Alternate Systems Evaluations” means alternatives for design, means and methods or other scope considerations that are evaluated using value engineering principles and have the potential to reduce construction costs while still delivering a quality and functional Project that meets County

4. “Amendment” means a written instrument issued after execution of the Contract Documents signed by the County and CMARE, stating their Contract upon all of the following: the addition, deletion or revision in the scope of services or Deliverables; the amount of the adjustment to the Contract

Amount; the extent of the adjustment to the Contract Time; or modifications of other Contract terms.

5. “Construction Contract Time(s)” means the number of days or the dates related to the construction phase that as stated in Construction Documents applies to achievement of Substantial Completion of the Work.

6. “Construction Documents” means plans, specifications and estimates prepared by the Design

Professional after correcting for permit review requirements, provided pursuant to 2.7.5 and utilized for the Guaranteed Maximum Price Proposal.

7. “Construction Fee” means CMARE’s General Administrative & Overhead Fee (administrative costs, home office overhead and additional indirect costs), whether at the CMARE’s principal or branch offices, and Profit. The CMARE’s Project Manager, Project Engineer, Superintendent and

Safety Officer shall be included as indirect project costs with the appropriate utilization rates. All other indirect labor shall be included in the general administration and overhead portion of the

Construction fee.

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8. “Construction Manager-at-Risk Entity (CMARE)” means the firm, corporation, or other approved legal entity with whom the County has entered into this Contract to provide services as detailed in this Contract.

9. “Contingency (CMARE’s)” or “CMARE’s Contingency” means a fund to cover cost growth during the Project used at the discretion of the CMARE usually for costs that result from Project circumstances. The amount of the CMARE’s Contingency will be negotiated as a separate line item in each GMP package. Use and management of the CMARE’s Contingency during the construction phase is described in Section 2.7.

10. “Contingency (County’s)” or “County’s Contingency” means a fund to cover cost growth during the Project used at the discretion of the County usually for costs that result from County directed changes or unforeseen site conditions. The amount of the County’s Contingency will be set by the

County and will be in addition to the project costs included in the CMARE’s GMP packages. Use and management of the County’s Contingency during the construction phase is described in Section

2.7.

11. “Contract” means the written document signed by the County and CMARE covering the Pre-

Construction Phase of the Project, and including other documents itemized and referenced in or attached to and made part of this Contract, including the below referenced General Conditions.

12. “Contract Amount” means the cost for Pre-Construction Phase Services for this Contract as identified in Article 4.

13. “Contract Documents” means the following items and documents in descending order of precedence executed by the County and the CMARE: (i) all written modifications, amendments;

(ii) this Contract, including all exhibits and attachments; and (iii) Construction Documents.

14. “Cost of the Work” means direct construction phase costs necessarily incurred by the CMARE in the proper performance of the Work. The Cost of the Work shall include direct labor costs, subcontract costs, costs of materials and equipment incorporated in the completed construction, costs of other materials and equipment, temporary facilities, building permit fees (if not paid for by

County), materials testing, and related items. The Cost of the Work shall not include the CMARE’s

Construction Fee, General Conditions Cost, or taxes.

15. “County” means the County of Orange, a political subdivision of the State of California, and its representatives, alternate designation, County.

16. “Critical Path Schedule” means the sequence of activities from the start of the Work to the

Substantial Completion of the Project. Any delay in the completion of these activities will extend the Substantial Completion date.

17. “Day” means calendar day unless otherwise specifically noted in the Contract Documents.

18. “Pre-Construction Contingency (CMARE’s)” or “CMARE’s Pre-Construction Contingency” means a fund to cover additional costs associated with an increased level of effort to accomplish the scope of work usually for costs that results from Project circumstances. The amount of the

CMARE’s Pre-Construction Contingency is described in Article 4. Use and management of the

CMARE’s Pre-Construction Contingency is at the CMARE’s discretion with County approval.

19. “Pre-Construction Contingency (County’s)” means a fund to cover cost growth during the Project used at the discretion of the County usually for costs that result from County directed changes or

3010603 4 of 121 unforeseen site conditions. The amount of the County’s Pre-Construction Contingency is described in Article 4.

20. “Pre-Construction Phase” or Pre-Construction Phase Services” means the work products prepared by the CMARE in performing the Scope of Work, attached hereto and as described in this Contract.

21. “Design Professional” means the qualified, licensed person, firm, corporation or in-house force who furnishes design, construction support, and/or construction administration services required for the Project.

22. “Float” means the number of Days by which an activity can be delayed without lengthening the

Critical Path and extending the Substantial Completion date.

23. “General Conditions” means those costs defined as General Conditions in the Construction

Contract and its General Conditions as attached hereto.

24. “Guaranteed Maximum Price (GMP)” means the sum of the maximum Cost of the Work including the CMARE’s Construction Fee, General Conditions Costs, sales tax, and CMARE’s Contingency or CMARE’s Pre-Construction Contingency.

25. “Guaranteed Maximum Price (GMP) Proposal” means the offer or proposal of the CMARE submitted on the prescribed form setting forth the GMP prices for the entire Work or portions of the Work to be performed during the Pre-Construction Phase or Construction Phase. The GMP

Proposal(s) are to be developed pursuant to Article 2 of this Contract.

26. “Laws and Regulations; Laws or Regulations” means any and all applicable laws, rules, regulations, ordinances, codes and orders of any and all governmental bodies, agencies, authorities and courts having jurisdiction.

27. “Notice to Proceed (NTP)” means a written notice given by County to the CMARE fixing the date on which the CMARE will start to perform the CMARE’s obligations under this Contract.

28. “Payment Request” means the form that is accepted by the County and used by the CMARE in requesting progress payments or final payment and which will include such supporting documentation as is required by the Contract Documents and or the County.

29. “Plans” means documents which visually represent the scope, extent and character of the Work to be furnished and performed by the CMARE during the construction phase and which have been prepared or approved by the Design Professional and the County. Includes Drawings that have reached a sufficient stage of completion and released by the Design Professional solely for the purposes of review and/or use in performing constructability or biddability reviews and in preparing cost estimates (e.g. conceptual design, Drawings, preliminary design Drawings, detailed design

Drawings at 35%, 65%, 95% or 100% or schematic, design development, construction documents).

Shop Drawings are not Drawings as so defined.

30. “Project” means the works to be completed in the execution of this Contract as described in the

Recital above and in the Scope of Work attached.

31. “Project Engineer” shall mean design engineer or designer who is responsible charge of preparing the engineering plans, estimate, and specifications.

32. “Project Manager” means a County appointed personnel to act as liaison between the County and the CMARE, to carry out the administration of this Contract and to monitor the CMARE's

3010603 5 of 121 compliance with all the terms and conditions stated herein. All requests for information from or decisions by the County on any aspect of the Work or Deliverables will be directed to the County's

Project Manager. The County’s Project Manager shall coordinate the activities of the County’s staff assigned to work with the CMARE. The County’s Project Manager shall have the right to require the removal and replacement of the CMARE project manager and key personnel. The Project

Manager shall notify the CMARE in writing of such action. The CMARE shall accomplish the removal within 7 calendar days after written notice by the Project Manager. The Project Manager shall review and approve the appointment of the replacement for the CMARE’s project manager and key personnel. Said approval shall not be unreasonably withheld. The Project Manager shall have the authority to administer the rights and responsibilities of County so long as the Project

Manger’s actions do not affect the legal rights and obligations of County.

33. “Project Team” means Pre-Construction Phase Services team consisting of the Design Professional, CMARE, County Project Manager, and other stakeholders who are responsible for making decisions regarding the Project.

34. “Schedule of Values (SOV)” means the detailed breakdown by discipline or unit prices and costs as defined for the project in the Schedule of Values in the Construction Contract and its General

Conditions as attached hereto.

35. “Shop Drawings” means all drawings, diagrams, schedules and other data specifically prepared for the Work by the CMARE or a Subcontractor, Sub-subcontractor, manufacturer, supplier or distributor to illustrate some portion of the Work.

36. “Site” means the land or premises on which the Project is located.

37. “Specifications” means to include, but is not limited to, the part(s) of the Contract Documents for the construction phase consisting of written technical descriptions of materials, equipment, construction systems, standards and workmanship as applied to the Work and certain administrative details applicable thereto.

38. “Subconsultant” means a person, firm or corporation having a Contract with the CMARE to furnish services required as its independent professional associate or consultant with respect to the Project.

39. “Subcontractor” means an individual or firm having a direct Contract with the CMARE or any other individual or firm having a Contract with the aforesaid Contractors at any tier, who undertakes to perform a part of the Pre-Construction Phase Services or Construction Phase Work at the site for which the CMARE is responsible. Subcontractors will be selected through the Subcontractor bid process described in paragraph 2.8 of this Contract.

40. “Supplier” means a manufacturer, fabricator, supplier, distributor, materialman or vendor having a direct Contract with CMARE or with any Sub-contractor to furnish materials or equipment to be incorporated in the construction phase Work by CMARE or any Sub-contractor. Major Suppliers will be selected through the Supplier bid process described in paragraph 2.8 of this Contract.

41. “Updated schedule” means a current schedule developed from the baseline or subsequent schedule through regular monthly review to incorporate as-built progress and any planned changes.

42. “Value Engineering” means alternatives for design, means and methods or other scope considerations that are evaluated using value engineering principles and have the potential to reduce construction costs while still delivering a quality and functional Project that meets County

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43. “Work” means the entire completed construction or the various separately identifiable parts thereof, required to be furnished during the construction phase. Work includes and is the result of performing or furnishing labor and furnishing and incorporating materials, resources and equipment into the construction, and performing or furnishing services and documents as required by the Contract Documents for the construction phase.

ARTICLE 2 – BASIC PRE-CONSTRUCTION PHASE SERVICES

2.1 GENERAL

2.1.1 The CMARE, to further the interests of the County, will perform the services required by, and in accordance with this Contract, to the satisfaction of the County, exercising the degree of care, skill and judgment a professional CMARE performing similar services in

Orange County, California would exercise at such time, under similar conditions. The

CMARE will, at all times, perform the required services consistent with sound and generally accepted construction management and construction contracting practice. The services being provided under this Contract will not alter any real property owned by the

County. The CMARE will provide these services as applicable from the Pre-Construction

Phase through the end of the project design and GMP process.

2.1.2 Program Evaluation: If requested, as a participating member of the Project Team, the

CMARE will provide to the County and Design Professional a written evaluation of the

County’s Project and Project Budget, each in terms of the other, with recommendations as to the appropriateness of each.

2.1.3 Project Meetings: The CMARE will attend Project Team meetings which may include, but are not limited to, regular Project management meetings, Project workshops, special

Project meetings, construction document rolling reviews and partnering sessions.

2.1.4 The CMARE will provide Pre-Construction Phase Services, described herein, in a proactive manner and consistent with the intent of the most current Drawings and

Specifications. The CMARE will promptly notify the County in writing whenever the

CMARE determines that any Drawings or Specifications should be revised for the Project and/or cause changes in the scope of Work requiring an adjustment in the cost estimate, Project Schedule, GMP Proposals and/or in the Contract Time for the Work, to the extent such are established.

2.1.5 The CMARE, when requested by the County, will attend, make presentations and participate as may be appropriate in public agency and or community meetings, germane to the Project. The CMARE will provide drawings, schedule diagrams, budget charts and other materials describing the Project, when their use is required or apropos in any such public agency meetings.

2.1.6 The success of this project, including the quality of the design documents, design development efforts, and Guaranteed Maximum Price (GMP) development, will depend on conducting thorough site investigations throughout the terminals, parking structures, and airfield to assess existing security systems and site conditions. These investigations are critical to developing an effective phasing and cutover strategy and incorporating those requirements into the GMP. This approach will help ensure the development of complete and coordinated construction documents, an accurate and reliable budget, and a comprehensive construction plan that maintains airport operations, preserves security requirements, and minimizes operational impacts throughout the construction period.

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2.2 PROJECT MANAGEMENT PLAN

2.2.1 If requested by the County, the CMARE will prepare and/or maintain a Project

Management Plan (PMP), which may include the CMARE’s professional opinions concerning: (a) Project milestone dates and the Project Schedule, including the broad sequencing of the pre-construction and construction of the Project, (b) investigations, if any, to be undertaken to ascertain subsurface conditions and physical conditions of existing surface and subsurface facilities and underground utilities, (c) alternate strategies for fast-tracking and/or phasing the construction, (d) the number of separate subcontracts to be awarded to Subcontractors and Suppliers for the Project construction, (e) permitting strategy, (f) safety and training programs, (g) construction quality control, (h) a commissioning program, (i) the cost estimate and basis of the project, (j) a matrix summarizing each Project Team member’s responsibilities and roles, (k) a utility relocation strategy, (l) construction staffing requirements, right of way, temporary construction easement (TCE), right of entry, encroachment permit strategies and requirements, and (m) reduction to environmental resources and environmental regulatory permit acquisition strategies.

2.2.2 The CMARE shall add detail to its previous version of the PMP as new information becomes available to keep it current throughout the Pre-Construction Phase, so that the

PMP is ready for implementation at the start of the construction phase. The update/revisions shall take into account (a) revisions in Drawings and Specifications; (b) the results of any additional investigatory reports of subsurface conditions, drawings of physical conditions of existing surface and subsurface facilities and documents depicting underground utilities placement and physical condition, whether obtained by the County, Design Professional or the CMARE, (c) unresolved permitting issues, and significant issues, if any, pertaining to the acquisition of land and right of way, (d) the fast-tracking if any of the construction, or other chosen construction delivery methods, (e) the requisite number of separate bidding documents to be advertised for solicitation of subcontractors and materials suppliers, (f) the status of the procurement of long-lead time equipment (if any) and/or materials, and (g) funding issues identified by the County.

2.3 PROJECT SCHEDULE

2.3.1 The fundamental purpose of the “Project Schedule” is to identify, coordinate and record the tasks and activities to be performed by all of the Project Team members and then for the Project Team to utilize that Deliverable as a basis for managing and monitoring all member’s compliance with the schedule requirements of the Project. The CMARE is responsible for developing, maintaining and monitoring compliance with the “Project

Schedule: on behalf of and to be used by the Project Team based on input from the other

Project Team members. The Project Schedule will be consistent with the most recent revised/updated PMP. The Project Schedule will use the Critical Path Method (CPM) technique, unless required otherwise, in writing by the County. The CMARE will use scheduling software to develop the Construction Schedule that is acceptable to the County.

The Construction Schedule shall be presented in graphical and tabular reports as agreed upon by the Project Team. If Construction phasing as described below is required, the

Construction Schedule will indicate milestone dates for the phases once determined.

2.3.2 The Construction Schedule shall include a CPM diagram schedule that shall show the sequence of activities, the interdependence of each activity and indicate the Critical Path.

2.3.2.1 The CPM diagram schedule shall be in Days and indicate duration, earliest and latest start and finish dates for all activities, and total Float times for all activities except critical

3010603 8 of 121 activities. The CMP diagram shall be presented in a time scaled graphical format for the

Project as a whole.

2.3.2.2 The CPM diagram schedule shall indicate all relationships between activities.

2.3.2.3 The activities making up the schedule shall be of sufficient detail to assure that adequate planning has been done for proper execution of the Work and such that it provides an appropriate basis for monitoring and evaluating the progress of the Work.

2.3.2.4 The CPM diagram schedule shall be based upon activities, which would coincide with the schedule of values.

2.3.2.5 The CPM diagram schedule shall show all submittals associated with each work activity and the review time for each submittal.

2.3.2.6 The Construction Schedule shall show milestones, including milestones for County-furnished information, and shall include activities for County-furnished equipment when those activities are interrelated with the CMARE activities.

2.3.3 The Construction Schedule shall consider the County’s and the tenants’ occupancy requirements showing portions of the Project having occupancy priority, and Contract

Time, if applicable.

2.3.4 Float time shall be as prescribed below:

2.3.4.1 The total Float within the overall schedule, is for the exclusive use of the County, and is a resource available to the County as needed to meet Contract milestones and the Project completion date.

2.3.4.2 Omitted

2.3.4.3 Since Float time within the schedule is solely County owned, it is acknowledged that

County-caused delays on the Project may be offset by County-caused time savings (i.e., Critical Path submittals returned in less time than allowed by the Contract, approval of substitution requests and credit changes which result in savings of time to the CMARE, etc.). In such an event, the CMARE shall not be entitled to receive a time extension or delay damages until all County-caused time savings are exceeded, and the Substantial

Completion date is also exceeded.

2.3.5 The Construction Schedule will be updated and maintained by the CMARE throughout the

Pre-construction Phase such that it will not require major changes at the start of the construction phase to incorporate the CMARE’s plan for the performance of the construction phase Work. The CMARE will provide updates and/or revisions to the Project

Schedule for use by the Project Team, whenever required, but no less often than at the monthly Project Team meetings. The CMARE will include with such submittals a narrative describing its analysis of the progress achieved to-date vs. that planned, any concerns regarding delays or potential delays, and any recommendations regarding mitigating actions.

2.3.6 Construction Phasing: If phased construction is deemed appropriate and the County and

Design Professional approve, the CMARE will review the design and make recommendations regarding the phased issuance of Construction Documents to facilitate phased construction of the Work, with the objective of reducing the Project Schedule

3010603 9 of 121 and/or Cost of the Work. The CMARE will take into consideration such factors as natural and practical lines of work severability, sequencing effectiveness, access and availability constraints, total time for completion, construction market conditions, labor and materials availability, and any other factors pertinent to saving time and cost.

2.4 DESIGN DOCUMENT REVIEWS

2.4.1 The CMARE will evaluate periodically the availability of labor, materials/equipment, building systems, cost-sensitive aspects of the design; and other factors that may impact the cost estimate, GMP Proposals and/or the Construction Schedule.

2.4.2 The CMARE will recommend, in conjunction with the Project Team, those additional surface and subsurface investigations that, in its professional opinion, are required to provide the necessary information for the CMARE to construct the Project. During Pre-

Construction Phase Services, the CMARE may request additional investigations in their

GMP Proposal to improve the adequacy and completeness of the site condition information and data made available with the Construction Documents.

2.4.3 The CMARE will meet with the Project Team as required to review designs during their development. The CMARE will familiarize itself with the evolving documents through the various design phases. The CMARE will proactively advise the Project Team and make recommendations on factors related to construction costs, and concerns pertaining to the feasibility and practicality of any proposed means and methods, selected materials, equipment and building systems, and labor and material availability. The CMARE will furthermore advise the Project Team on proposed site improvements, excavation and foundation considerations, as well as concerns that exist with respect to coordination of the

Drawings and Specifications. The CMARE will recommend cost effective alternatives.

2.4.4 The CMARE will routinely conduct constructability and biddability reviews of the

Construction Documents as necessary to satisfy the needs of the Project Team. The reviews will attempt to identify all discrepancies and inconsistencies in the Construction

Documents especially those related to clarity, consistency, and coordination of Work for

Subcontractors and Suppliers.

2.4.4.1 Constructability Reviews: The CMARE will evaluate whether (a) the Drawings and

Specifications are configured to enable efficient construction, (b) design elements are standardized, (c) construction efficiency is properly considered in the Drawings and

Specifications, (d) module/preassembly design are prepared to facilitate fabrication, transport and installation, (e) the design promotes accessibility of personnel, material and equipment and facilitates construction under adverse weather conditions, (f) sequences of

Work required by or inferable from the Drawings and Specifications are practicable, and

(g) the design has taken into consideration efficiency issues concerning access and entrance to the site, laydown and storage of materials, staging of site facilities, construction parking, and other similar pertinent issues. The CMARE shall identify, to the greatest extent practicable, discrepancies and inconsistencies in the Construction Documents.

2.4.4.2 Biddability Reviews: The CMARE will check cross-references and complementary

Drawings and sections within the Specifications, and in general evaluate whether (a) the

Drawings and Specifications are sufficiently clear and detailed to minimize ambiguity and to reduce scope interpretation discrepancies, (b) named materials and equipment are commercially available and are performing well or otherwise, in similar installations, (c)

Specifications include alternatives in the event a requirement cannot be met in the field, and (d) in its professional opinion, the Project is likely to be subject to differing site

3010603 10 of 121 conditions. The CMARE shall identify, to the greatest extent practicable, discrepancies and inconsistencies in the Construction Documents.

2.4.4.3 The results of the reviews will be provided to the County in formal, written reports clearly identifying all discovered discrepancies and inconsistencies in the Drawings and

Specifications with notations and recommendations made on the Drawings, Specifications and other documents. The written reports will be provided whenever required, but not less often than at the Project Milestones. If requested by the County, the CMARE will meet with the County and Design Professional to discuss any findings and review reports.

2.4.4.4 The CMARE’s reviews will be from a contractor’s perspective, and though it will serve to reduce the number of Requests for Information (RFIs) and changes during the construction phase, responsibility for the Drawings and Specifications will remain with the Design

Professional and not the CMARE.

2.4.5 Notification of Variance or Deficiency: It is the CMARE’s responsibility to assist the

Design Professional in ascertaining that, in the CMARE’s professional opinion, the

Construction Documents are in accordance with applicable laws, statutes, ordinances, building codes, rules and regulations. If the CMARE recognizes that portions of the

Construction Documents are at variance with applicable laws, statutes, ordinances, building codes, rules and regulations, it will promptly notify the Design Professional and

County in writing, describing the apparent variance or deficiency. However, the Design

Professional is ultimately responsible for the compliance with those laws, statutes, ordinances, building codes, rules and regulations.

2.4.6 Value Engineering Evaluations: The Project Team will routinely identify and evaluate using value engineering principles any alternate systems, approaches, design changes that have the potential to reduce Project costs while still delivering a quality and functional product. If the Project Team agrees, the CMARE in cooperation with the Design

Professional will perform a cost/benefit analysis of the alternatives and submit such in writing to the Project Team. The Project Team will decide which alternatives will be incorporated into the Project. The Design Professional will have full responsibility for the incorporation of the alternatives into the Drawings and Specifications. The CMARE will include the cost of the alternatives into the cost estimate and any GMP Proposals.

2.6 COST ESTIMATES

2.6.1 Unless otherwise agreed by both Parties, within 14 calendar days after receipt of the documents for the various phases of design, the CMARE shall provide a detailed cost estimate and a written review of the documents. The Design Professional and CMARE shall reconcile any discrepancies on the estimate to arrive at a GMP. If no consensus is reached, the County will make the final determination.

2.6.2 If any estimate submitted to the County exceeds previously accepted estimates or the

County’s Project budget, the CMARE shall make appropriate recommendations on methods and materials to the County and Design Professional that he believes will bring the project back into the Project budget.

2.6.3 In between these milestone estimates, the CMARE shall periodically provide a tracking report which identifies the upward or downward movements of costs due to value engineering or scope changes. It shall be the responsibility of the CMARE to keep the

County and Design Professional informed as to the major trend changes in costs relative to the County’s budget.

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2.6.4 If requested by the County, the CMARE shall prepare a preliminary “cash flow” projection based upon historical records of similar type projects to assist the County in the financing process.

2.6.5 If this Contract is funded in whole or in part by the Federal Government, CMARE agrees to comply with the Federal labor standards provisions set forth in the Special Provisions.

If the Federal prevailing wage determinations differ from the State’s, CMARE shall not pay less than the higher of the two rates.

2.7 GUARANTEED MAXIMUM PRICE (GMP) PROPOSALS

2.7.1 The proposed GMP for the entire Work (or portions thereof) will be presented in a format acceptable to the County. Due to the potential for the County to update procedures without notice, CMARE must verify with the County the current submittal requirements and procedures when entering into these services.

2.7.1.2 The County may request a GMP Proposal for all or any portion of the Project and at any time during the Pre-Construction Phase. Any GMP Proposals submitted by the CMARE will be based on and consistent with the current update/revised cost estimate at the time of the request, the associated estimates for construction costs and include any clarifications or assumptions upon which the GMP Proposal(s) are based.

2.7.2 Guaranteed Maximum Price is comprised of the following not-to-exceed cost reimbursable or lump sum amounts defined below.

2.7.2.1 The Cost of the Work is actual costs and is a not-to-exceed, reimbursable amount.

2.7.2.2 The General Conditions Costs are a firm fixed lump sum amount which will include bonds and insurance premiums based on the full Contract price for construction.

2.7.2.3 CMARE’s Pre-Construction Contingency and CMARE’s Contingency are amounts the

CMARE shall use under the following conditions:

(1) At its discretion, with Project Manager written consent for increases in the Cost of the Work which are not the County’s responsibility, or

(2) With written approval of the County for increases in General

Condition Costs. CMARE’s Contingency is assumed to be a direct project cost so will receive all markups at the time of GMP submission.

2.7.2.4 Taxes are deemed to include all sales, use, consumer and other taxes which are legally enacted when negotiations of the GMP were concluded, whether or not yet effective or merely scheduled to go into effect. Taxes are actual costs and are a not-to-exceed reimbursable amount.

2.7.3 County’s Contingency are funds to be used at the sole discretion of the County to cover any increases in Project costs that result from County-directed changes or unforeseen site conditions. County’s Contingency will be added to the GMP amount provided by the

CMARE, the sum of which will be the full Contract price for construction. Markups for

Construction Fee and taxes will be applied by the CMARE at the time that County’s

Contingency is used. Any unused portion of County’s Pre-Construction Contingency, 3010603 12 of 121

County’s Contingency, CMARE’s Pre-Construction Contingency, or CMARE’s

Contingency, remaining at the completion of any Project phase, whether the Pre-

Construction Phase or Construction Phase, shall revert to the County upon completion of such Project Phase.

2.7.4 GMPs are cumulative except for CMARE’s Contingency. The amount of CMARE’s

Contingency for each GMP amendment will be negotiated separately and shall reflect the

CMARE’s risk from that point in the project forward.

2.7.5 The CMARE, in preparing any GMP Proposal will prepare its GMP in accordance with the County’s request and will obtain from the Design Professional three sets of

Construction Documents (including all addenda). The CMARE will mark the face of each document of each set upon which its proposed GMP is based. The CMARE will send one set of those documents to the County’s Project Manager, keep one set, and return the third set to the Design Professional.

2.7.6 An updated/revised Construction Schedule will be included with any GMP Proposal(s) that reflects the Construction Documents. Any such Project Schedule updates/revisions will continue to comply with the requirements of paragraph 2.3.

2.7.7 GMP savings resulting from a lower actual project cost than anticipated by the CMARE remaining at the end of the project will revert to County.

2.7.8 GMP Proposal(s) Review and Approval shall be as prescribed below:

2.7.8.1 The CMARE will meet with the County and Design Professional to review the GMP

Proposal(s) and the written statement of its basis. In the event the County or Design

Professional discovers inconsistencies or inaccuracies in the information presented, the

CMARE will make adjustments as necessary to the GMP Proposal, its basis or both.

2.7.8.2 The County upon receipt of any GMP proposal from the CMARE, may submit the GMP

Plans and Specifications to an independent third party or to the Design Professional for review and verification. The third party or Design Professional will develop an independent estimate of the Cost of the Work and review the Construction Schedule for the associated scope of the GMP Proposals.

2.7.8.3 If the CMARE’s GMP Proposal is greater than the independent third party or Design

Professional’s estimate, the County may require the CMARE to reconfirm its GMP

Proposal. The CMARE will accept the independent third party’s or Design Professional’s estimate for the Cost of Work as part of his GMP or present a report within seven days of a written request to the County identifying, explaining and substantiating the differences.

The CMARE may be requested to, or at its own discretion, submit a revised GMP Proposal for consideration by the County. At that time the County may do one of the following:

(a) Accept the CMARE’s original or revised GMP Proposal, if within the County’s budget, without comment.

(b) Accept the CMARE’s original or revised GMP Proposal that exceeds the County’s budget and indicate in writing to the

CMARE that the Project Budget has been increased to fund the differences.

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(c) Reject the CMARE’s original or revised GMP Proposal because it exceeds the County’s budget, the independent third party’s or

Design Professional’s estimate, in which event, the County may terminate this Contract and/or elect to not enter into a separate

Contract with the CMARE for the construction phase associated with the scope of work reflected in the GMP Proposal.

(d) Wait to accept the GMP Proposal if the County believes adequate funding will be available in the future.

2.7.8.4 If during the review and negotiation of GMP Proposals design changes are required, the

County will authorize and cause the Design Professional to revise the Construction

Documents to the extent necessary to reflect the agreed-upon assumptions and clarifications contained in the final approved GMP Proposal. Such revised Construction

Documents will be furnished to the CMARE. The CMARE will promptly notify the Design

Professional and County in writing if any such revised Construction Documents are inconsistent with the agreed-upon assumptions and clarifications.

2.8 MAJOR SUBCONTRACTOR AND MAJOR SUPPLIER SELECTIONS

2.8.1 The selection of major Subcontractors and major Suppliers may occur prior to submission of a GMP Proposal. Major Subcontractors may be selected based on qualifications or a combination of qualifications and price. Subcontractors shall not be selected based on price alone. Except as noted below, the selection of major Subcontractors/Suppliers is the responsibility of the CMARE. In any case, the CMARE is solely responsible for the performance of the selected Subcontractors/Suppliers.

2.8.1.1 The CMARE will prepare a Subcontractor/Supplier selection plan and submit the plan to the County for approval. This subcontractor selection plan shall identify those subcontractor trades anticipated to be selected by qualifications only per Article 2.8.2 and those subcontractor trades anticipated to be selected by qualifications and competitive bid in accordance with Article 2.8.3. This plan will also identify those subcontractor trades that will not be selected through a formalized qualifications-based selection process. The subcontractor selection plan must be consistent with the selection requirements included in this Contract.

2.8.2 Selection by qualifications only - The County may approve the selection of a

Subcontractor(s) or Suppliers(s) based only on their qualifications when the CMARE can demonstrate it is in the best interest of the Project.

2.8.2.1 Qualification based selection of a Subcontractor(s)/Supplier(s) should only occur during the Pre-Construction Phase to achieve maximum benefit of the subcontractors’ involvement prior to the submittal of the GMP Proposal.

2.8.2.2 The CMARE shall apply the approved subcontractor selection plan in the evaluation of the qualifications of a Subcontractor(s) or Supplier(s) and provide the County with its review and recommendation.

2.8.2.3 The CMARE must receive County approval of the selected Subcontractor(s)/Supplier(s).

2.8.2.4 The CMARE will negotiate costs for services/supplies from each Subcontractor/Supplier selected under this method.

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2.8.3 Selection by qualifications and competitive bid - The CMARE shall apply the subcontractor selection plan in the evaluation of the qualifications of a Subcontractor(s) or

Supplier(s) and provide the County with its process to prequalify prospective subcontractors and suppliers. All Work for major subcontractors and major suppliers shall then be competitively bid to the prequalified subcontractors unless a Subcontractor or

Supplier was selected pursuant to paragraph 2.8.2 above. Competitive bids may occur prior to or after the GMP Proposal(s).

2.8.3.1 The CMARE will develop Subcontractor and Supplier interest, submit the names of a minimum of three qualified Subcontractors or Suppliers for each trade in the Project for approval by the County and solicit bids for the various Work categories. The CMARE will identify the Small Business Enterprise Subcontractors and Suppliers and during the bidding process keep the County informed on the progress of meeting the desired SBE goal. If there are not three qualified Subcontractors/Suppliers available for a specific trade or there are extenuating circumstances warranting such, the CMARE may request approval by the

County to submit less than three names. No change in the recommended

Subcontractors/Suppliers will be allowed without prior written notice to the County.

2.8.3.2 If the County objects to any nominated Subcontractor/Supplier or to any self-performed

Work for reasonable grounds, the CMARE will nominate a substitute

Subcontractor/Supplier that is acceptable to the County.

2.8.3.3 The CMARE will distribute Drawings and Specifications, and when appropriate, conduct a pre-bid conference with prospective Subcontractors and Suppliers with County’s Project

Manager or their designee present.

2.8.3.4 If the CMARE desires to self-perform certain portions of the Work, it will request to be one of the approved Subcontractor bidders for those specific bid packages. The CMARE’s bid will be evaluated in accordance with the process identified below. If events warrant and the County concurs that in order to ensure compliance with the Project Schedule and/or cost, the CMARE may self-perform Work without bidding or re-bidding the Work.

2.8.3.5 The CMARE shall request the pre-qualified Subcontractors to provide a detailed bid for the services requested. The Subcontractor bid, provided on the Subcontractors’ letterhead, shall contain sufficient information (i.e. unit costs/amounts) to allow an evaluation of the reasonableness of bid costs. The CMARE shall receive, open, record and evaluate the bids.

The apparent low bidders will be interviewed to determine the responsiveness of their proposals. In evaluating the responsiveness of bid proposals, the CMARE, in addition to bid price, may consider the following factors: past performance on similar projects, qualifications and experience of personnel assigned, quality management plan, approach or understanding of the Work to be performed, and performance schedule to complete the

Work. The final evaluation of Subcontractor/Supplier bids will be done with the County

Project Manager in attendance to observe and witness the process. The CMARE will resolve any Subcontractor/Supplier bid withdrawal, protest or disqualification in connection with the award at no increase in the Cost of the Work.

2.8.4 The CMARE will be required to prepare two different reports on the subcontracting process as prescribed below:

2.8.4.1 Within fifteen (15) days after each major subcontractor/Supplier bid opening process, the

CMARE will prepare a report for the County’s review and approval identifying the recommended Subcontractors/Supplier for each category of Work. The report will provide

(a) the name of the recommended Subcontractor/Supplier and the amount of the

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Subcontractor/Supplier bid for each subcontract, (b) the sum of all recommended

Subcontractor/Supplier bids received, (c) a copy of the bids received from each subcontractor, and (d) trade work and its cost that the CMARE intends to self-perform, if any.

2.8.4.2 Upon completion of the Subcontractor/Supplier bidding process, the CMARE shall submit a summary report to the County of the entire Subcontractor/Supplier selection process. The report will indicate, by bid process, all Subcontractors/Suppliers contacted to determine interest, the Subcontractors/Suppliers solicited, the bids received, and costs negotiated, and the recommended Subcontractors/ Suppliers for each category of Work.

2.8.5 The approved Subcontractors/Suppliers will provide a Schedule of Values that reflects their final accepted bid proposal, which will be used to create the overall Project Schedule of

Values.

2.8.6 If after receipt of sub-bids or after award of Subcontractors and Suppliers, the County objects to any nominated Subcontractor/Supplier or to any self-performed Work for good reason, the CMARE will nominate a substitute Subcontractor or Supplier, preferably if such option is still available, from those who submitted Subcontractor bids for the Work affected. Once such substitute Subcontractors and Suppliers are consented to by the

County, the CMARE's proposed GMP for the Work or portion thereof will be correspondingly adjusted to reflect any higher or lower costs from any such substitution.

2.8.7 Promptly after receipt of the Notice of Intent to Award, the County will conduct a pre-award conference with the CMARE and other Project Team members. At the pre-award conference, the CMARE will (a) review the nominated slate of Subcontractors and

Suppliers and discuss any concerns with or objections that the County has to any nominated

Subcontractor or Supplier; (b) discuss County concerns relating to any proposed self-performed Work; (c) review the CMARE’s proposed Contract Price for the Work during the construction phase; (d) discuss the conditions, if any, under which the County will agree to leave any portion of the remaining CMARE’s Contingency within the Contract Price for the construction phase Work; (e) resolve possible time frames for the Date of

Commencement of the Contract time for the construction phase Work; (f) schedule the pre-construction conference; and (g) discuss other matters of importance.

2.8.8 No performance of this Contract or any portion thereof may be subcontracted or otherwise delegated by Contractor, in whole or in part, without first obtaining the prior express written consent of County. Any attempt by Contractor to subcontract or delegate any performance of this Contract without the prior express written consent of County shall be invalid and shall constitute a material breach of this Contract, and any attempted assignment or delegation in derogation of this paragraph shall be void.

In the event that Contractor is authorized by County to subcontract, this Contract shall take precedence over the terms of the agreement between Contractor and subcontractor, and any agreement between Contractor and a subcontractor shall incorporate by reference the terms of this Contract. Contractor shall remain responsible for the performance of this Contract and indemnification of County notwithstanding the County’s consent to Contractor’s request for approval of a subcontractor. Under no circumstances shall County be required to directly monitor the performance of any subcontractor. All work performed by a subcontractor must be monitored by Contractor and must meet the approval of the County of Orange pursuant to the terms of this Contract.

ARTICLE 3

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3.1 Omitted

ARTICLE 4 – CONTRACT AMOUNT AND PAYMENTS

4.1 CONTRACT AMOUNT FOR PRE-CONSTRUCTION PHASE SERVICES

4.1.1 Based on the Pre-Construction Phase Services fee proposal submitted by the CMARE and accepted by the County (which by reference is made a part of this Contract); the County will pay the CMARE a Maximum Contract Price of $______________ as follows:

The CMARE shall provide the basic services described in Article 2 and Attachment A for a Guaranteed Maximum Price of $ ____________

Pre-Construction Contingency (CMARE’s): $_______________

Pre-Construction Contingency (County’s): $_______________

Total Pre-Construction Services Contract Price for the Project: $_______________

Pre-Construction Services Profit Margin: _________%

Pre -Construction General Administration & Overhead Fee: _________%

Total Construction Fee for the Project: _________%

4.2 PAYMENTS

4.2.1 Requests for monthly payments by the CMARE for Pre-Construction Phase Services will be submitted on the County’s “Contract Payment Request” form and will be accompanied by a progress report, detailed invoices and receipts, if applicable. Any requests for payment will include, as a minimum, a narrative description of the tasks accomplished during the billing period, a listing of any Deliverables submitted, and copies of any Subconsultants’ requests for payment, based on their respective fee schedules in Attachment C, plus similar narrative and listings of Deliverables associated with their Work. Payment for services negotiated as a lump sum shall be made in accordance with the percentage of work completed during the preceding month. Services negotiated as a not-to-exceed fee will be paid in accordance with the work effort expended on that service during the preceding month.

4.2.2 The fees for the CMARE and any Subconsultants will be based upon the hourly rate schedule in Attachment C.

4.2.3 The CMARE will pay all sums due Subconsultants/Subcontractors for services and reimbursable expenses within 14 calendar days after the CMARE has received payment for those services from the County.