AgdaPkt 2020-10-26 Joint SA PFA - Laserfiche WebLink

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7.A. - Page 63 of 176 10/09/2020 construction design and construction budget will include a reasonable contingency amount, not to exceed ten percent (10%) of the overall budget for the Levee Improvements, to cover unanticipated design, construction and other cost overruns, but excluding City Costs, which will be separately adjusted pursuant to Section 11. SCOA and City acknowledge that an allocation of the contingency shall not require the City's approval and that the foregoing contingency represents both a design and construction contingency. Upon City's approval of the final pre-bid design and construction budget, the Final Construction Documents pursuant to Section 3, and the Final Bid Package Documents pursuant to Subsection 12(a), SCOA will publish / advertise notice of the construction contract pursuant to Subsection 12(c) below. After City's approval and before SCOA's acceptance of the best value bid pursuant to Subsection 12(c), SCOA will prepare and submit to City a proposed final budget for the Levee Improvements in which the final accepted line item bid prices are substituted for the corresponding cost estimates in the last pre-bid design and construction budget. Upon City's approval, the then approved final budget shall be referred to as "Final Design and Construction Budget" and shall thereafter govern the work of Levee Improvements subject to adjustment pursuant to Sections 3 and 11. Accordingly, upon establishment of the Final Design and Construction Budget, the Parties agree to affix the Final Design and Construction Budget to this Agreement as Exhibit H. During construction of the Levee Improvements, on at least a monthly basis, SCOA will provide City with a variance report detailing by line item, the actual costs of designing and constructing the Levee Improvements, as compared to the costs set forth in the Final Design and Construction Budget (including any adjustments pursuant to Sections 3 and 11). Prior to conveyance of the Levee Improvements, SCOA will provide to City for review and approval, not to be unreasonably withheld, conditioned or delayed, a complete accounting of the actual total costs of designing and constructing the Levee Improvements and securing FEMA accreditation of the New Levee, together with a variance report detailing by line item, the actual total costs as compared to the costs set forth in the Final Design and Construction Budget (including any adjustments pursuant to Sections 3 and 11). The final accounting of the actual total costs of designing and constructing the Levee Improvements as approved by City is referred to herein as the "Final Project Costs". City will have the right to audit SCOA's records of the project after SCOA submits its accounting. Any such audit will be conducted by City Staff or a nationally recognized accounting firm, and City will bear the cost unless the audit reveals an overstatement of costs in excess of five percent (5%) in which case SCOA shall reimburse City within thirty (30) days following City's demand for the costs of such audit. City will complete its review and audit (if any) of SCOA's accounting and project records within 60 days after SCOA submits its accounting and will thereupon notify SCOA in writing of City's approval thereof or any proposed adjustments. The Parties shall make a good faith effort to resolve through direct negotiation, any dispute concerning (i) City's proposed adjustments and (ii) the accuracy, applicability or reasonableness of any charge which City submitted to SCOA pursuant to Section 11. Any issue which the Parties have not resolved within thirty (30) days after City's notice shall, at the election of either Party, be resolved through binding arbitration conducted under the Engineering and Construction Expedited Arbitration Rules of JAMS in effect at the time of the arbitration and shall be conducted at the JAMS facility in San Francisco, California or such other location as the Parties may agree. The arbitrator's decision will be binding on all Parties to the arbitration and, on the petition of any Party, the decision may be confirmed, and judgment thereon entered by a court of competent jurisdiction. The dispute resolution procedures described above shall apply only to the matters specified in this Section 10 and shall have no OAK #4819-4834-1908 v19 16 ATTY/AGR/2020.230/SEAPORT LEVEE AGREEMENT 245