RES 2022-0035 - Owner's Representative-Project Manager Agreement with Noddle Development Company for Relocation of the Downtown Library City Clerk Office Use Only:
RESOLUTION NO. 21) -0,035 Publication Date(if.pplicable):
Agenda Date:
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Department: L,
Submitter: i/r `/ AD )
CITY OF OMAHA
LEGISLATIVE CHAMBER
Omaha, Nebraska
RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
WHEREAS, owner's representative/project management services are needed in conjunction with
the relocation of the W. Dale Clark (Main) Library; and,
WHEREAS, in accordance with Omaha Municipal Code, Section 10-187, Noddle Development
Company, LLC, was selected to provide owner's representative/project management services, and
additional services as delineated in the attached Owner's Representative Agreement; and,
WHEREAS, Noddle Development Company, LLC, has agreed to perform these services for a fee
of$390,000.00,to be paid from the General Fund 11111, Library Facilities Capital Organization 131593,
year 2022 funding.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
THAT, as recommended by the Mayor,the Owner's Representative Agreement with Noddle
Development Company, LLC, to provide owner's representative/project management services on the
relocation of the W. Dale Clark (Main) Library, is hereby approved.
BE IT FURTHER RESOLVED:
THAT, the Finance Department is authorized to pay a fee of$390,000.00, from the General Fund
11111, Library Facilities Capital Organization 131593, year 2022 funding.
APPROVED AS TO FORM
//7 /l
ASTI CITY ATTORNEY DATE
-D Adopted: FEB 0 1
Attest:
City Cle
Approved: l A
Mayor
OWNER'S REPRESENTATTVE AGREEMENT
THIS AGREEMENT is made by and between City of Omaha Nebrask ("Owner") and
Noddle Development Company, LLC ("Owner's Representative"), as of the day of 4ordrary-,-Fe106.)a-''-
2022.
1. General. This Agreement shall define the agreed upon services to be provided and
terms of performance as Owner's Representative for the City of Omaha, on behalf of the Omaha
Public Library, to facilitate the Relocation of the Downtown Omaha Library Branch, and all
associated administrative services and public library functions, as specifically identified by the
Owner, to the following locations (the"Project"):
1401 Jones Street Omaha, NE
84th &Frederick Streets Omaha, NE
2. Services. The "Owner's Representative Services" as set forth in Exhibit "A"
attached hereto shall be provided to Owner by Owner's Representative pursuant to the terms and
conditions set forth herein.Owner's Representative understands that Owner's priority for the Project
is to minimize the interruption of library services wherever possible.
3. Owner's Representative's Performance. Owner's Representative warrants that
the Owner's Representative Services shall be performed in a professional and workmanlike
manner in an effort to achieve the intended objective,in accordance with current industry standards
prevailing in the location where the Owner's Representative Services are performed.
4. Fees. The fee for Owner's Representative Services shall be a fixed amount of
Three Hundred Ninety Thousand Dollars ($390,000.00) (the "Fee"). Should the Owner elect
to change the scope of the Project in a way which materially affects the Owner's Representative's
Services or the resources required in order to perform the Owner's Representative Services and
complete the Project, the above fee shall be adjusted upward or downward to fairly compensate
the Owner's Representative for such changes, as provided for herein.
The Fee shall be payable in eight(8)equal monthly installments of Forty-Eight Thousand
Seven Hundred Fifty Dollars ($48,750.00), commencing with the first full calendar month
following'the date of this Agreement. Payments are due and payable on the fifth (511') day of each
month. The final payment (which shall include multiple, accelerated installments, if appropriate)
shall be paid no later than 30 days following substantial completion. At the Owner's sole
discretion, the payment dates for the Owner's Representative's fee may be changed (only within
each month, and not such that payments are made on less than a monthly basis) to coincide with
the payment date agreed to with the contractor hired to construct the Project.
5. Representatives. All communication, coordination, direction and decision-
making between the parties shall be conducted by the Designated Representatives of each Owner
and Owner's Representative. Such individual(s) are authorized to bind the party which they
represent, to the extent allowed by law, except with respect to modifications to the scope of this
Agreement, which modifications shall be effective only if in writing and signed by an officer of
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each party. The parties acknowledge and agree that such modifications shall be approved by the
Omaha City Council.
Owner
City of Omaha Nebraska
1819 Farnam Street, Suite 300
Omaha,NE 68183
Owner's Representative's Representative
Tacna Kidder
c/o Noddle Companies
2285 S. 67'1i Street, Suite 250
Omaha,NE 68102
402-496-1616
tarn a @noddlecompanies.com
provided that notices to Owner's Representative shall also be sent to:
Jay B. Noddle and Paul Dietsch
c/o Noddle Companies
2285 S. 671h Street, Suite 250
Omaha,NE 68102
402-496-1616
jay@ noddlecompanies.com
paul@noddlecompanies.com
Either party may change their Designated Representative or contact information upon ten (10)
days prior written notice.
6. Schedule. Owner desires that the Project be complete on or before September 30th,
2022, with Owner's Representatives Services beginning no later than January 17111,2022.The final
space plans for improvements associated with the locations identified in Section 1 above will be
approved by Owner no later than March 7`h,2022. It is anticipated that all Owner's Representative
Services shall be completed within 30 days following substantial completion as referenced herein.
If the time to complete is extended for any reason, the parties shall discuss a change in the fee
provided in Section 3 above.
Owner's Representative shall assist in the preparation of a schedule with respect to
completion of the Project, including necessary activities and associated durations not covered by
this Agreement but which the Project goals may be dependent. When approved by the Owner, the
Owner's Representative shall use good faith efforts to meet the timelines and milestones provided
relating to the Project activities, and to coordinate and manage the advancement of the Project, as
provided in the Schedule. In the event the Owner's Representative is made aware of or anticipates
any material change in the Schedule through completion of Owner's Representative Services,
Owner's Representative will make Owner aware of any such changes and provide Owner with any
opportunity to attempt to minimize impacts.
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7. Reimbursable Costs. The following expenses ("Reimbursable Costs") are in
addition to the fee listed above, and consist of expenses incurred by the Owner's Representative
directly related to the Project including the following:
a. Authorized out-of-town travel and associated expenses, with Owner's prior
authorization;
b. Dedicated data and communication services, teleconference service, and web-
based hosting services;
c. Printing, reproductions,plotting, and standard form documents;
d. Postage, handling, and delivery;
e. When authorized in advance, expense of overtime work requiring premium
rates;
f. Renderings, Models, Mock-Ups, Professional Photography, and Presentation
Materials requested by the Owner;
g. Professional Liability Insurance and other insurance policies specific to this
project or Owner-requested insurance deductibles in excess of what is normally
carried by the Owner's Representative and its team members;
h. Taxes levied on reimbursable expenses; and
i. Other minor Project-related necessary and reasonable expenditures.
All Reimbursable Costs (other than those set forth in subparagraphs h, and i. above) will
be billed as actual costs plus a 5% mark-up for administrative expenses and overhead.
Notwithstanding the foregoing, the parties acknowledge that under no circumstances shall
Owner's Representative be expected to directly pay any invoices or otherwise expend its own
funds for any portion of the Project costs, including but not limited to architectural or engineering
fees, construction costs,permit fees or other costs not provided under this Agreement.
8. Owner's Representative's Responsibilities.
a. The Owner's Representative shall provide the Owner's Representative Services
as set forth the in this Agreement, and specifically set forth in Exhibit A, and
include the usual and customary construction coordination and scheduling,
constructability review, budget review, cost analysis, and allocation of
construction activities among the contractors hired to construct the Project.
b. The Owner's Representative shall exercise reasonable care in preparing the
Schedule and cost estimates,and endeavor to complete the Project in accordance
with the Schedule and cost estimates,provided that the Owner's Representative
does not warrant or guarantee such estimates or the Schedule,
c. The Owner's Representative shall prepare a budget of all anticipated expenses
necessary to complete the Project, including necessary expenses not covered by
this Agreement but on which the Project goals may be dependent. When
approved by the Owner, Owner's Representative shall use good faith efforts to
coordinate and manage the advancement of the Project, as provided in the
Budget. In the event of any material change in any item indicated in the Budget,
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Owner's Representative shall promptly prepare and submit to Owner a revised
Budget reflecting such material changes, for approval by Owner.
d. In rendering the Owner's Representative Services, the Owner's Representative
shall comply with applicable laws, statutes, ordinances, codes, rules and
regulations,and lawful orders of public authorities applicable to its performance
under this Agreement. Any services contracted or provided for by a third-party
shall be procured as required by Omaha Municipal Code and any associated
contracts shall be approved by the Omaha City Council. This shall include the
fees and costs associated with contractors, engineers, architects, or consultants
necessary to the performance and completion of the Project, any required
permits, or other such related expenditures, which services, fees and costs are
separate from and in addition to the Fee.
9. Owner's Responsibilities.The duties to be performed (or caused to be performed)
by Owner shall include all acts reasonably necessary, proper and appropriate to facilitate Owner's
Representative's performance of the Owner's Representative Services, including, without.
limitation, the following:
a. Cooperation. The Owner and its staff shall reasonably and timely cooperate
with Owner's Representative's efforts in accordance with this Agreement, in
support of the City's required procurement processes, and to actively support
achievement of Project goals dependent on Owner's action, specifically
including but not limited to (i) respond promptly to all requests for consent
and/or approval received from Owner's Representative or third parties; (ii) take
all such other reasonable actions with respect to third parties or requested by
Owner's Representative to facilitate Owner's Representative's performance of
the Owner's Representative Services under this Agreement;(iii)promptly,fully
and currently inform Owner's Representative of any material information and
developments with respect to the Project; and (iv) execute and deliver such
applications, agreements or amendments to the foregoing, including all
contracts with architects, engineers, contractors or consultants, as may be
necessary or desirable to fully complete the Project.
b. Payments.The Owner shall timely pay all sums directly, or deposit funds into
the accounts) established by Owner's Representative for payment, in
accordance with this Agreement. Owner shall be responsible for the direct
payment of all costs and fees due to architects, engineers, contractors or
consultants required in order to complete the Project.
c. Legal Advice.The Owner shall be solely responsible for selecting and retaining
its own legal counsel with respect to this Project, including but not limited to
the review and negotiation of any and all.contracts and documents,to the extent
and at such time the Owner may deem appropriate.
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d. Public Approvals. The Owner shall cooperate and facilitate the review and
award of any contracts contemplated herein, and the presentation of those
contracts to the Omaha City Council.
10. Conflict Resolution. Both parties agree to resolve _conflicts starting with
mediation. Both parties agree that their liability for any loss or damage, including but not limited
to special and consequential damages arising out of or in connection with the performance of
services hereunder shall not exceed the total compensation received by Owner's Representative
hereunder, and Owner hereby releases and holds harmless Owner's Representative and its
employees from any liability above such amount.
11. Mutual Indemnification. Subject to the limitations in Section 9 above, each party
hereby agrees to indemnify,defend and hold the other party and its owners,officers,representatives,agents
and employees harmless from and against any and all liabilities, losses, costs or expenses resulting from
any claim, demand, complaint, action, suit, proceeding or similar action, which is made or initiated by a
third party and which is in any way connected with the Project, but only to the extent that any of the
foregoing are the result of any grossly negligent or willful acts, omissions to act or forbearance's of the
indemnifying party or its agents, employees or representatives. IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER FOR SPECIAL, INDIRECT, PUNITIVE, OR
CONSEQUENTIAL DAMAGES, OR ANY DAMAGES CONSTITUTING LOST PROFITS,
SUFFERED BY EITHER PARTY UNDER THIS AGREEMENT,EXCEPT TO THE EXTENT OF
ANY SUCH DAMAGES PAID TO A THIRD PARTY AS A PART OF A CLAIM SUBJECT TO
INDEMNIFICATION HEREUNDER.
In claims against any person or entity indemnified under this Section by an employee of
the Owner's Representative or anyone directly or indirectly employed by the Owner's
Representative, the indemnification obligation under the Section shall not be limited by a
limitation on amount or type of damages,compensation or benefits payable by or for the Owner's
Representative under workers' compensation acts,disability benefit acts or other employee benefit
acts.
12. Termination. The Owner may terminate this Agreement upon thirty (30) days
written notice with or without cause. If payment terms are not met or Agreement is extended past
the agreed upon schedule, the Owner's Representative shall provide the Owner with thirty (30)
days' notice of its intent to terminate the Agreement. In the event of any termination, Owner's
Representative shall be paid for all Construction Management Services provided or Reimbursable
Costs incurred up to the date of termination, plus reasonable demobilization costs.
13. Insurance. Owner's Representative shall procure, and at all times maintain with
insurers domiciled in the United States, licensed to do business in Nebraska, and reasonably
acceptable to Owner, the following minimum insurance:
a. Commercial General Liability — Owner's Representative shall maintain a policy of
commercial general liability insurance written on an occurrence basis with policy limits
not less than$1,000,000 each occurrence and$2,000,000 aggregate for bodily injury and
damage to property.
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b. Automobile Liability — Owner's Representative shall maintain automobile liability
insurance written on an occurrence basis covering all owned, rented, and non-owned
vehicles operated by Owner's Representative with policy limits of not less than
$1,000,000 combined single limit and aggregate for bodily injury and property damage
combined.
c. Workers Compensation -- Owner's Representative shall provide statutorily required
Workers' Compensation insurance. Owner's Representative shall maintain coverage for
employers' liability with a policy limit as required by law, but not less than $500,000.
d. Builder's Risk — Owner's Representative shall provide, or cause others to provide,
Builder's Risk insurance with coverage for work to be executed under this Agreement,
except that the cost of such Builder's Risk coverage will be considered a Reimbursable
Expense.
14. Ownership and Use of Documents. The Owner's Representative shall be deemed
the author and owner of all instruments of service, including drawings, plans, and specifications,
and will retain all common law, statutory and other reserved rights, including copyrights. The
contractors,subcontractors,and material or equipment suppliers shall not own or claim a copyright
it the instruments of service.
15. Limited Warranties. Except as specifically set forth in this Agreement, neither
party makes any warranties, representations, or guarantees (either express or implied) and all such
warranties, representations, and guarantees, including the warranties of fitness are expressly
disclaimed,
16. Independent Contractor•, Owner's Representative shall be,and remain throughout
the Project, an independent contractor of Owner. Subcontractors who perform any portion of the
Owner's Representative Services shall do so as independent contractors, and not as employees of
Owner's Representative or Owner. Nothing in this Agreement shall be construed as inconsistent
with this status.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nebraska, without giving effect to the conflicts of law
rules thereof,
16. Assignment. The Owner and Owner's Representative, respectively, bind
themselves, their agents, successors, assigns and legal representatives to this Agreement. Neither
the Owner nor the Owner's Representative shall assign this Agreement without the written consent
of the other,except that the Owner may assign this Agreement to a lender providing financing for
the Project if the lender agrees to assume the Owner's rights and obligations under this Agreement.
17. Notice. Except for routine communications in the course of performance of this
Agreement, which may be transmitted in accordance with any procedures established by
agreement or acquiescence of the parties, all notices and other communications under this
Agreement shall be in writing and shall be delivered in person or sent by email or sent (postage
prepaid)by registered, certified, or express U.S. mail or sent by overnight a nationally recognized
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courier service, and shall be deemed given and received when delivered in person, or when sent
by email, or three days after sent by mail (one business day in the case of express mail), or one
business day after sent by overnight courier service posted for next business day deliver,addressed
in each case to the respective party at its address specified above, or at such other address or
addresses as such party may from time to time designate by written notice to the other party as
herein provided.
18. Amendments.No amendments,modifications, alterations, or waivers of the terms
of this Agreement shall be binding unless made in writing and executed by both of the parties
hereto.
19. Scope of Agreement. This Agreement represents the entire and integrated
agreement between Owner and the Owner's Representative and supersedes all prior negotiations,
representations or agreements, either written or oral. This Agreement may be amended only by
written instrument signed by both parties. The parties acknowledge and agree that any changes to
the Fee shall require approval of the Omaha City Council
20. Execution in Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and shall become
effective when one or more such counterparts have been signed by each of the parties and delivered
to the other party. Counterparts and signatures transmitted by facsimile shall be valid as originals.
21. Severability. The provisions of this Agreement are severable. If any provision
hereof should be void, voidable, or unenforceable under any applicable law, such void, voidable,
or unenforceable provision shall not affect or invalidate any other provision of this Agreement,
and this Agreement shall continue to govern the relative rights and duties of the parties as though
the void, voidable, or unenforceable provision were not a part hereof. The parties agree that all of
the terms and conditions hereof shall be enforced to the fullest extent permitted by law.
The undersigned agree to the terms of this Agreement and hereby gives notice to proceed
with the Owner's Representative Services described herein.
City of Omaha Nebraska Noddle Development Company, LLC
Name(Print): E?c".) 'i-a 'L" —t Name (Prii t : ' t .1 '
Title: M AV 0 Title: rr_ "
Signature $t ) 1.A.AA± Signature: a; ---
Date: Z/3/Z67.7 _ Date: o _t 1
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APPROVED AS TO FORM:
- T:7S- /-7 /2-c°Z
Jennifer J. Taylor
Assistant City Attorney
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Exhibit"A"
Administration
- Review and process monthly pay applications from Designer, Contractor,and Vendors
- Prepare project progress communication materials regularly for Owner.
- Develop project schedule strategy and set associated milestones.
- Work with Owner to establish target project budget and procurement strategy.
- Develop project options for consideration; either to provide additional value or to reduce project
budget.
- Attend meetings on behalf of Owner and provide timely notification of decisions required.
- Solicit proposals and negotiate Agreements for Design,Construction, and Vendor Services
required for the project.
- Negotiate Guaranteed Maximum Price with Contractor.
- Coordinate between project team members,stakeholders, and Owner's staff and vendors.
- Coordinate among team members to execute the procurement process in the most efficient and
effective manner,
Programming
- Develop a working program upon which the tenant improvement design and relocation plans
would be based.
- Coordinate programming meetings with appropriate user groups for utilization input.
- Review analyses prepared on existing building systems to determine limitations(if any).
Design and Consulting
- Coordinate design development meetings with appropriate team members
- Oversee production of Schematic/Design Development Level Design documents for review;code
and programming compliance.
- Oversee production of Construction Documents for review;code and programming compliance.
- Review requests for Additional Services from Designer and/or•Consultants,
Construction
- Review construction costs and negotiate change order expenses.
- Coordinate and negotiate with Architect for design services as necessary
- Review and critique the Project Schedule to ensure timely completion.
- Coordinate and negotiate with contractors for construction and other services as necessary.
- Oversee construction activities.
- Regular site visits to review quality of work and schedule progress.
- Consultation on construction means and methods
- Punch list Management
- Project Closeout Management
Relocation
- Coordinate inventory management during relocation process.
- Manage relocation vendors to ensure coordination with construction schedule.
Exclusions and Clarifications •
- The Owner's Representative can award to contractors and vendors based on a best value fee and
qualifications competitive evaluation.
- There are no restrictions on contractors or vendors that can be utilized.
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- The Owner will support an expedited permitting process,with proactive collaboration in advance
of submission.
- Renovations to the Core&Shell of the 1401 Jones and 84th&Frederick buildings will not
negatively affect the timeline for this project.
- Renovations to the Core&Shell of the 1401 Jones and 84°'&Frederick buildings will be
adequate for the intended use to be programmed in this project.
- The leases will require that the landlord(s) for the existing facilities are to provide a construction
ready Core&Shell that is code compliant and outfitted with building systems(including
mechanical,electrical, fire suppression, utility services space and restroom facilities) appropriate
for the intended use. All such landlord work provided through this agreement will meet the
developed program, all pertinent code requirements,and will be proactively coordinated with the
C&S.
- A detailed inventory of the Dale Clark Library contents (other than FF&E)is available.
- Owner's Representative, Owner and the library staff will collaborate an inventory and assessment
of FF&E items to be reused, newly purchased, and/or eliminated, Owner's Representative will
coordinate work schedules with all Owner provided material providers and vendors for the
benefit of the Project.
- The library staff will need some time to reach operational readiness after the completion of the
work defined in this Agreement.Preliminary schedules include time allowances for IT/Network
installation, staff member orientation, and branding/signage installation. To the extent that this
work can be condensed or overlapped with construction activities,the Owner's Representative
will coordinate with Owner and the library staff for the benefit of the Project.
- The existing building will be turned over empty apart from items not to be relocated,
- De-commissioning or demolition of the existing facility is not included.
- Property General Liability Insurance will be maintained on the Dale Clark Library, 1401 Jones,
and 84th&Frederick properties should there be claims related to the Core, Shell, and exterior
Property during this project.
- Building Services,to include: utility services, snow removal,lawn services, trash removal, and
repair/maintenance, will be maintained by others on the Dale Clark Library, 1401 Jones,and 84°i
&Frederick properties throughout the Project.
Additional labor expenses incurred for scope not specifically listed above will be billed according to the
following:
TEAM MEMBER HOURLY RATE
Principal $350.00
Executive $225.00
Owner's Representative/Project $150.00
Manager
Administrative $75.00
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