City of Culver City, California
City Council Agenda Item Report
RECOMMENDATIONS:
Staff recommends the City Council terminate the design-build contract with Fast-
Track Construction Corporation (Fast-Track) for the Firing Range Rehabilitation
Project, P-832.
BACKGROUND:
In August 2006, a Request for Proposal was released to solicit bids for the design-
build of the Police Department Firing Range rehabilitation project, P-832. There
were three proposals received. In January 2007, the City Council awarded a contract
with Fast-Track in the amount of $581,772.25. A pre-design meeting was conducted
with Fast-Track and it was brought to staff’s attention that the bid documents did not
include soundproofing as a part of the project. In February 2007, staff requested
Fast-Track to provide a cost proposal from an acoustic engineer to conduct a study
of a recommended soundproofing system for the firing range. After several
interviews with acoustic engineers, Fast-Track provided a proposal from an acoustic
engineering firm in April 2007. Staff directed Fast-Track to proceed with the
soundproofing study and it was completed in November 2007.
At the completion of the study, a change order (CCO 3) was presented by Fast-
Track to incorporate the recommendations in the soundproofing study to the
construction plans. The following are all the change orders requests for the project:
Meeting Date: 08/25/08 Item Number: A-6
AGENDA ITEM: Terminate the Design-Build Contract With Fast-Track
Construction Corporation for the Firing Range Rehabilitation Project, P-832
Contact Person/Dept.: Elaine Jeng/PW,
Hong Wang/PW
Phone Number: (310) 253-5621, (310)
253-5604
Fiscal Impact: Yes [X] No [] General Fund: Yes [] No [X]
Public Hearing: [] Action Item: [] Attachments: [X]
Public Notification:
Master E-Mail Notification List (08/20/08); Fast-Track, via mail on August 15, 2008
Department Approval:
Charles D. Herbertson (08/18/08)
City Attorney Approval:
Carol Schwab (by H. Baker) (08/19/08)
Chief Financial Officer Approval:
Jeff Muir (by N. Kimball) (8/20/08)
City Manager Approval:
Jerry B. Fulwood (08/20/08) City of Culver City, California
City Council Agenda Item Report
Contract Change Order 1 (CCO 1)
Staff directed Fast-Track to purchase a wireless target system on behalf of the City
through the design-build contract. CCO 1 was approved in the amount of $19,212 to
purchase 5 modular shooting targets.
Contract Change Order 2 (CCO 2)
In April 2007, this change order was approved in the amount of $20,786 for the
acoustical engineering consultant sound proofing study of the firing range.
Contract Change Order 3 (CCO 3)
In December 2007, Fast-Track requested a change order amount of $36,681.59 and
contract extension of 130 calendar days for the additional architectural design fees
to incorporate the proposed soundproofing system components in the project
construction plans. CCO 3 was not fully approved by staff due to the unreasonable
amount of time extension requested with the work.
Contract Change Order 4 (CCO 4)
CCO 4 was submitted in June 2008 in the amount of $446,926, mostly for the
additional cost attributed to labor and material to construct the soundproofing
system. CCO 4 by itself nearly doubles the original contract amount. The large
amount of CCO 4 was not anticipated by staff. The total cost to construct the firing
range as it is currently designed is $1,015,368.
DISCUSSION:
Staff has solicited an independent architecture firm (McClaren, Wilson and Lawrie,
Incorporated|1010|) with experience in firing range design and construction to evaluate
the proposed design and provide a peer review and recommendation to the City.
The architect’s opinion was that the proposed soundproofing of the firing range is
over designed and more costly to construct than other soundproofing systems for
|1010| McClaren, Wilson & Lawrie, Inc., based in Phoenix, Arizona, is an architect firm that specializes in the
programming, planning, and design of civic and public safety facilities. They have designed more than 100 police
stations (many that include firing ranges) and over 90 crime labs/medical examiner facilities throughout North
America. James Lewis McClaren, a Registered Architect is specialized in law enforcement, firearms proficiency,
& forensic science laboratories. Since 1982, Mr. McClaren has devoted his career to the master planning,
programming and design of law enforcement, forensic science and forensic pathology facilities throughout North
America.
City of Culver City, California
City Council Agenda Item Report
similar firing ranges. It is the recommendation of McClaren, Wilson and Lawrie, Inc.
that a more cost effective soundproofing system can be designed and constructed
while still meeting the existing budget amount and fulfilling the operational needs of
the Police Department.
Due to the proposed change order cost that greatly exceeds the available project
budget, staff recommends that the City Council terminate its contract with Fast-Track
and re-evaluate its design and construction options so that a firing range can be
constructed that will both meet the department’s needs and budgetary constraints
The General Condition provision of the contract document, Article 14.3, ”Termination
by City Without Cause” states, “Without limitation upon any of the City’s other rights
or remedies at law or in equity, the city shall have the option, at its sole discretion
and without cause, to terminate the Design-Build Contract, in whole or in part, by
giving fourteen (14) Day’s written notice to the Design-builder as provided herein.”
Upon contract termination, the City shall pay to the Design-Builder for the work
already performed under the Design-Build Contract.
FISCAL ANALYSIS:
The Police Firing Range project (P-832) is funded by Fund 416, Asset Seizure fund
account. The original budget for this project in FY 2004-05 was $630,000, which
was subsequently increased by a total of $300,000 in FYs 2005-06 and 2007-08.
Therefore, the total budget amount is $930,000. To date, just under $230,000 has
been expended, leaving a balance of just over $700,000. Of the total amount
expended to date, $65,410 has been expended on the contract with Fast-Track
Construction. The remaining amount was spent on Architectural fees for the
conceptual design that was used in the Design/Build RFP process, abatement of
lead contamination, and demolition of the old firing range. The available funds for
the firing range construction will be reduced by the amount the City owes, if any, to
Fast-Track for work performed that has not been compensated to date. This amount
will be determined through discussions with Fast-Track. The project does not have
adequate funding to pay for the construction as it is currently designed.
ATTACHMENTS:
1. Article 14.3 of the General Conditions of the contract documents.
MOTIONS:
City of Culver City, California
City Council Agenda Item Report
That the City Council:
1) Terminate the Police Firing Range Rehabilitation Design-Build contract with Fast-
Track Construction Corporation per Article 14.3 of the General Conditions of the
contract documents; and
2) Authorize the City Attorney to review/prepare the necessary documents for the
contract termination and authorize the City Manager to execute such documents
on behalf of the City.
MEETING DATE: 08/25/08
AGENDA ITEM:
Consideration of Terminate Design-Build Contract with Fast-Track
Construction Corporation for Police Firing Range Rehabilitation
Project, P-832
ATTACHMENTS
Pages
Article 14 of "General Conditions" of the Contract Document 1-5physical or mental disability, sexual orientation, or any other status protected by law. Design-Builder shall by means of
contract provisions take steps to see to it that this obligation is extended to the other members of the Design-Builders
Team.
13.18 PURCHASES WITHIN CITY
Design-Builder agrees to seek bids for the Work from businesses located within the City of Culver City with the intent to
enter into contract with these businesses if such contracts can be made at competitive prices.
13.19 TAXPAYER IDENTIFICATION
Design-Builder shall provide City with a complete Request for Taxpayer identification Number and Certification, Form W-
9, as issued by the Internal Revenue Service.
ARTICLE 14
TERMINATION OR SUSPENSION
14.1 TERMINATION BY CITY FOR DESIGN-BUILDER DEFAULT
14.1,1 Notice of Default. Without limitation to any of the City's other rights or remedies at law or in equity, the
City shall have the right to terminate the Design-Build Contract in the event of any of the following: (1) the Design-Builder
is adjudged bankrupt; (2) the Design-Builder makes a general assignment for the benefit of its creditors; (3) a receiver is
appointed on account of the Design-Builder's insolvency; or (4) the Design-Builder fails or refuses to perform any
obligation set forth in the Design-Build Contract, the General Conditions or the other Contract Documents and fails to cure
such default in the manner required hereafter.
14.1.2 Opportunity to Cure. The Design-Builder shall cure any default in performance of its obligations under
the Contract Documents within seven (7) Days after service of written notice of such default from the City or the
Construction Manager; provided, however, that if the breach cannot reasonably be cured within such time then the
Design-Builder shall commence to cure the breach within three (3) working days after service of such written notice and
shall diligently and shall thereafter continuously prosecute such cure to completion within a reasonable time, which shall in
no event be a period of time longer than twenty (20) Days after service by the City of such written notice.
14.1.3 City's Rights and Remedies. In the event that the Design-Builder fails to cure any breach of the Design-
Build Contract within the applicable time periods set forth in Paragraph 14.1.2, above, then the City may pursue any
remedies available under law or equity, including, without limitation, the following:
Delete Work. The City may, without terminating the Design-Build Contract, delete certain
portions of the Work, reserving to itself all rights to recover Losses related thereto.
.2 Perform and Withhold. The City may, without terminating the Design-Build Contract, engage
others to perform the Work or portion of the Work that has not been performed by the Design-Builder and withhold the
cost thereof to the City from future payments to the Design-Builder, reserving to itself all rights to recover all Losses
related thereto.
.3 Suspension. The City may, without terminating the Design-Build Contract and reserving to itself
all rights to recover Losses related thereto, suspend all or any portion of the Design-Build Contract or the Work for as long
a period of time as the City determines, in its sole discretion, appropriate, in which event the City shall, notwithstanding
the provisions of Section 14.2 below, have no obligation to adjust the Contract Price or Contract Time. Thereafter, if the
City directs the Design-Builder to resume the Work, the City shall have no liability to the Design-Builder for adjustment to
the Contract Price or Contract Time or for any Losses incurred by the Design-Builder in resuming the Work.
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A63 General Conditions of 6.A 05-22-06.doc.4 Terminate the Design-Build Contract. The City may terminate all or any part of the Design-
Build Contract for cause, reserving to itself all rights to recover Losses related thereto and, without liability for so doing,
take possession of and utilize in completing the Work such materials, equipment, appliances, tools, plant and other
property belonging to the Design-Builder as may be on the Site of the Work and necessary or convenient therefor.
.5 Invoke the Performance Bond. The City may, with or without terminating the Design-Build
Contract and reserving to itself all rights to recover Losses related thereto and all rights under the Performance Bond and
Payment Bond, exercise its rights under the Performance Bond. Without limitation to the foregoing, in the case of
termination of the Design-Build Contract, if the Surety on the Performance Bond fails, within seven (7) Days after service
by the City to Surety of written demand, to give the City written notice of its intention to take over and perform the Design-
Build Contract or does not commence performance of the Work within fifteen (15) Days from date of service of such notice
of demand by the City on Surety, the City may take over the Work and prosecute same to Final Completion by any means
it may deem expedient at the expense of the Design-Builder and Surety.
.6 Rights Cumulative. All of the City's rights and remedies under the Contract Documents are
cumulative, and shall be in addition to those rights and remedies available in law or in equity. Designation in the Contract
Documents of certain breaches as "material" or as affording the City the right to terminate shall not be construed as
implying that other breaches not so designated are not material nor shall such designations be construed as limiting the
City's right to terminate or the exercise of its rights or remedies for default to only material breaches. The City shall
determine whether there has been noncompliance with the Contract Documents so as to warrant exercise by the City of
its rights and remedies for default. No termination or action taken by the City after termination shall prejudice any other
rights or remedies of the City provided by law or equity or by the Contract Documents upon such termination, and the City
may proceed against the Design-Builder to recover all Losses suffered by the City.
14.1.4 Payment to Design-Builder. Design-Builder shall be entitled to receive, at such times as provided for in
this Paragraph 14.1.4, an amount based upon the Construction Manager's determination, in good faith, of the percentage
of Work completed at the Site (including, without limitation, any completed or incomplete Work located off-Site that the
City, in its sole discretion, requests be delivered to the Site after such termination) in accordance with the Contract
Documents as of the date of termination less any amount previously paid by City to Design-Builder and after deduction by
City for any Losses paid, incurred or threatened as a result of the Design-Builder's default or City's termination. Upon
termination by City, all further payments shall be withheld by City and no further amount shall be payable by City on
account of the Contract Sum until the later of either: (1) Final Completion of the Work; or (2) all Claims have been
resolved or finally adjudged by a court or by binding arbitration conducted in accordance with the Contract Documents.
14.1.5 Damages to City. If the Losses paid, incurred or threatened as a result of the Design-Builder's default or
the City's termination exceed the amount withheld, the Design-Builder shall be liable to the City for the difference and
shall promptly remit same to the City.
14.1.6 Delays by Sureties. Without limitation to any of the City's other rights or remedies at law or in equity, the
City has the right to suspend the performance by any Surety in the event of any of the following: (1) failure of Surety to
begin the non-design portions of the Work within a reasonable time in such manner as to ensure full compliance with the
Contract Documents within the Contract Time; (2) abandonment of the Work; (3) if at any time the District is of the good
faith opinion the completion of the non-design portion of the Work is unnecessarily or unreasonably delayed; (4) violation
of any terms of the Design-Build Contract or other Contract Documents pertaining to the non-design portions of the Work;
(5) failure to perform the non-design portions of the Work according to the Design-Build Contract or the other Contract
Documents; or (6) failure to follow instructions of the City for performance of the non-design portions of the Work within
the Contract Time. The City will serve notice of such failure upon the Surety, and in the event the Surety neglects or
refuses to cure the breach within the time specified in such notice, the City shall have the power to suspend or terminate
the performance, or any part thereof, of Surety.
14.1.7 Design-Builder Obligations. Upon receipt of a notice of termination for default, the Design-Builder shall,
unless the notice states otherwise, perform each of the obligations set forth in Parts .1 through .8 of Paragraph 14.3.2,
below
2. Page 80 of 84
A613 General Conditions of 6A 05-22-06.doc14.1.8 Conversion. In the event of termination for cause by the City that is adjudged by a court or by binding
arbitration conducted in accordance with the Contract Documents to have been wrongful, the City shall pay the Design-
Builder as its sole compensation, the sums provided for in Paragraph 14.3.3, below. The Design-Builder agrees to accept
such sums as its sole and exclusive compensation and agrees to waive any right to recovery of any other compensation
or Loss, including, but not limited to, loss of anticipated profits, loss of revenue, lost opportunity or other consequential,
direct, indirect or incidental damages, of any kind.
14.1.9 Substantial Performance Waived. The legal doctrine that a Design-Builder may recover for substantial
performance of a building contract is to have no application to the Design-Build Contract. All defaults by the Design-
Builder, whether occurring before or after the Work is Substantially Completed, shall be deemed material and shall give
rise to the right of the City to terminate the Design-Build Contract under the provisions of this Section 14.1.
14.1.10 Cross-Default, Set Off. The Design-Builder agrees that a breach of any other agreement between the
Design-Builder and the City pertaining to the Project or any other project will be and constitute a material breach under the
Design-Build Contract, thereby enabling the City to assert all its rights and remedies hereunder including, but not limited
to, a specific right of set-off by the City against any amounts otherwise payable to the Design-Builder under the Design-
Build Contract or any other agreement between the Design-Builder and the City. The City reserves the right to set-off any
and all amounts determined to be Losses incurred by the City due to Design-Builder's performance or non-performance of
the Work against amounts due, or that will become due, to Design-Builder under the Design-Build Contract or any other
agreement between the City and Design-Builder.
14.2 SUSPENSION BY CITY FOR CONVENIENCE
14.2.1 Suspension Order. The City may, at any time and from time to time, without cause, order the Design-
Builder, in writing, to suspend, delay or interrupt performance of the Work, in whole or in part. Upon receipt of such
suspension order, the Design-Builder shall comply with its terms and take all reasonable steps to minimize costs allocable
to the Work covered by the suspension order during the period of the Work stoppage.
14.2.2 Resumption. If a suspension order issued by the City pursuant to this Section 14.2 is canceled or
expires, the Design-Builder shall resume and continue with the Work. A Change Order will be issued adjusting the
Contract Price and/or the Contract Time, respectively, for additional Costs of Work of Extra Work and for compensation
permitted to the Design-Builder by Section 4.4 of the Design-Build Contract for Compensable Delay necessarily caused
by such suspension; provided, however, that no such adjustment shall be made to the extent:
.1 that performance is, was or would have been so suspended, delayed or interrupted by another
cause for which the Design-Builder or any of the Subcontractors or Subconsultants is responsible; or
.2 that an adjustment to the Contract Price on account thereof is made or denied under another
provision of the Contract Documents.
14.2.3 Suspension Order Required. The provisions of this Section 14.2 shall not apply if a suspension order is
not issued by the City pursuant to this Section 14.2 or if the suspension is ordered pursuant to Section 2.2, above or
Paragraphs 14.1.3.3 or 14.1.5, above. A suspension order shall not be required to stop the Work as permitted or required
under any other provision of the Contract Documents.
14.3 TERMINATION BY CITY WITHOUT CAUSE
14.3.1 Right to Terminate for Convenience. Without limitation upon any of the City's other rights or remedies
at law or in equity, the City shall have the option, at its sole discretion and without cause, to terminate the Design-Build
Contract, in whole or in part, by giving fourteen (14) Days' written notice to the Design-Builder as provided herein.
14.3.2 Design-Builder Obligations. Upon receipt of notice of termination without cause pursuant to Section
14.3, the Design-Builder shall, unless such notice directs otherwise, do the following:
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3
A68 General Conditions of 6A 05-22-06.doc .1 immediately discontinue performance of the Work to the extent specified in the notice;
.2 take actions necessary, or that the City or the Construction Manager may direct, for the protection
and preservation of the Work;
.3 place no further orders or subcontracts for materials, equipment, services or facilities, except as
may be necessary for completion of such portion of its obligations as is not discontinued;
.4 provide to the City, in writing no later than two (2) Days after receipt of the notice of termination, a
complete list all subcontracts, purchase orders and contracts that are outstanding, including any change orders,
amendments and modifications thereto, status of payments and balance owing, the status of performance and claims by
the Subcontractors and Subconsultants, together with such other information as the City may determine necessary in
order to decide whether to accept assignment of the subcontract, purchase order or contract;
.5 promptly: (1) assign to the City those subcontracts, purchase orders or contracts, or portions
thereof, that the City elects to accept by assignment; and (2) cancel, on the most favorable terms reasonably possible, all
subcontracts, purchase orders or contracts, or portions thereof, that the City does not elect to accept by assignment;
.6 not terminate any insurance required by the Contract Documents; thereafter continue only such
performance as may be directed by City or as necessary to preserve and protect the Work already completed or in
progress and to protect materials and equipment on the Site or in transit thereto; and
.7 at the written request and option of City, exercised in its sole discretion, transfer title and deliver
to the City any completed items of Work that have not been previously delivered to the Site and any partially completed
items of Work that the Design-Builder or any other member of the Design-Builder's Team has specifically produced or
acquired for the Project.
14.3.3 Design-Builder Compensation. Following termination without cause and within thirty (30) Days after
receipt of a complete and timely billing from the Design-Builder seeking payment of sums authorized by this Paragraph
14.3.3, the City shall pay to the Design-Builder as its sole and exclusive compensation for performance under the Design-
Build Contract the following:
.1 Costs of Work incurred for performance of Work up to the date of termination, not to exceed an
amount that is equal to an allocable portion of the Contract Price calculated by multiplying the City's determination of the
percentage of the Work properly performed by the Design-Builder as of the date of termination times the Contract Price;
.2 plus, if construction has commenced at the time of such termination, a reasonable sum for actual,
direct costs (with no additional markup, multiplier or sum for overhead or profit) for: (1) demobilizing; and (2) administering
the close out of its participation in the Work (including, without limitation, all billing and accounting functions) for a period
of no longer than fifteen (15) Days after receipt of the City's notice of termination;
.3 less, sums that the City is authorized by to withhold pursuant to Section 9.5, above, or other
provisions of the Contract Documents; and
less, sums previously paid by the City.
14.3.4 Exclusive Compensation. The Design-Builder agrees to accept such sums as allowed under Paragraph
14.3.3, above, as its sole and exclusive compensation and waives any claim for other compensation or Losses, including,
but not limited to, loss of anticipated profits, loss of revenue, lost opportunity, or other consequential, direct, indirect, or
incidental damages, of any kind.
14.3.5 Other Design-Build Team Members. The Design-Builder to see to it that provisions are included in all
of contracts, purchase orders and other agreement entered into by other members of the Design-Builder's Team
.4|1010| Page 82 of 84
A6B General Gondiiions of 6A 05-22-06.docpermitting termination for convenience on terms that are consistent with, and that afford no greater rights of recovery for
termination than are afforded to the Design-Builder under, this Section 14.3.
14.4 TERMINATION BY DESIGN-BUILDER
14.4.1 Design-Builder's Remedies. Subject to the provisions of Paragraphs 14.4.2 and 14.4.3, below, the
Design-Builder may terminate the Design-Build Contract, for cause only, upon the occurrence of one of the following:
.1 the Work is stopped for one hundred sixty (160) consecutive Days, through no act or fault of the
Design-Builder or any of the Subcontractors or Subconsultants, of any Tier, or any employee or agent of any of them, due
to issuance of an order of a court or other Governmental Authority (other than the City) having jurisdiction or due to a
declaration of a national emergency; or
.2 the Work is suspended by the Design-Builder in accordance with Section 9.7, above, for a
continuous period of thirty (30) Days.
14.4.2 Notice of Intention to Terminate, if one of the reasons to terminate as described in Paragraph 14.4.1
exists, the Design-Builder may upon seven (7) Days written notice to the Construction Manager and the City, terminate
the Design-Build Contract and recover from the City only such sums as permitted under Paragraph 14.3.3, above.
14.4.3 Continuous Performance. Provided that the Design-Builder is paid undisputed sums due under the
Design-Build Contract, the Design-Builder shall not stop, delay or interrupt continuous performance of the Work by reason
of any dispute or disagreement with the City, including, without limitation, any disputes or disagreements over payments
of money that are disputed in good faith by the City.
14.5 CONTINUING OBLIGATIONS
All obligations of the Design-Builder under the Contract Documents with respect to the Work that would survive Final
Completion of the Work, including, but not limited to, all warranties, guarantees and indemnities, will apply to the portions
of the Work to the extent completed by the Design-Builder prior to a termination by the City or Design-Builder.
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A68 General Conditions of 6A 05.22-06.doc