HomeMy WebLinkAboutResolution - 2019-R0037 - Lee Lewis Construction - 02/12/2019Resolution No. 2019-R0037
Item No. 8.13
February 12, 2019
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute fo1
and on behalf of the City of Lubbock, Contract No. 14224 for construction manager at risk
services for the construction of Three (3) Police Department Substations as per RFP 19-14224-
TF, by and between the City of Lubbock and Lee Lewis Construction, Inc., of Lubbock, Texas,
and related documents. Said Contract is attached hereto and incorporated in this resolution as ii
fully set forth herein and shall be included in the minutes of the City Council.
Passed by the City Council on February I2, 2019
DANIEL M. POPE,44AYOR
ATTEST:
b"e" A -- . - --
Reb ca Garza, City Secre
APPROVED AS TO CONTENT:
Q-/n 0--c A
Mark oo , Assistant City Manager
APPROVED AS TO FORM:
elli Leisure, Assistant City Attorney
ccdocs/RES.CMARContract 14224 .. Construction of Three Police Department Substations
January 29, 2019
Resolution No. 2019-R0037
AGREEMENT FOR CONSTRUCTION MANAGER AT RISK
WHERE THE CONSTRUCTION MANAGER AT RISK
IS ALSO THE CONSTRUCTOR BETWEEN
CITY OF LUBBOCK AND LEE LEWIS CONSTRUCTION, INC.
This Agreement, Contract No. 14224, made to be effective on the 12th day of Fehr ,
2019, is entered into in Lubbock County, Texas by and between LEE LEWIS CONSTRUCTION, INC., a
domestic for profit corporation whose address is 7810 Orlando Avenue, Lubbock, Texas, 79423, as
Construction Manager at Risk hereinafter called "CMAR", and the CITY OF LUBBOCK, Texas, a Texas
home -rule municipal corporation, whose address is 1625 13"' Street, Lubbock, Texas 79457, hereinafter
called "Owner".
WHEREAS, in accordance with law, Owner, has caused Contract Documents to be prepared and
a Request for Proposals to be published, for and in connection with Request for Proposals for Construction
Manager at Risk Services ("RFP No. 19-14224-TF"), for three (3) Police Department Substations, located
on three (3) different sites in Lubbock, Texas; and
WHEREAS, CMAR, in response to the Request for Proposals, has submitted to Owner, in the
manner and at the time specified, a Proposals package in accordance with the "Instruction to Offerors"
contained within the Request for Proposals; and
WHEREAS, The City Council of the City of Lubbock, by Resolution adopted on FPhn,an, 17 ,
2019, approved the selection of CMAR and authorized the Mayor to execute a contract, under the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained,
Owner and CMAR agree as follows:
ARTICLE 1
GENERAL PROVISIONS
1.1 SCOPE OF WORK
CMAR services for three (3) police department substations which, in general, includes Scope of Work as
described in RFP No. 19-14224-TF, incorporated herein by reference for all purposes (hereinafter the
"Work"). This project includes Pre -construction and Construction services for the Work.
The project is located at: East Substation
1702 E. 19th Street
Lubbock, Texas 79403
South Substation
140' Street & Indiana Avenue
Lubbock, Texas 79423
North Substation
To Be Determined
Lubbock, Texas
The CMAR Services under the direction of the Owner will provide consultation and construction services
during the design and construction phase of the project for three (3) police department substation buildings,
site improvements and utilities.
The Architect is: MWM Architects, Inc.
2022 Broadway Avenue
Lubbock, TX 79401
-1-
1.2 CONTRACT DOCUMENTS
The Contract Documents consist of this Agreement, Request for Proposals, RFP No. 19-14224-TF, Owner's
Construction General Conditions, Attachment 1, CMAR's General Conditions and fees proposed,
Attachment 2, and all documents, conditions, specifications, technical data, drawings, requirements and
addenda comprising said Request for Proposals as of the time this Agreement is entered into by CMAR and
Owner, any written amendments signed by both parties in the future, written and owner -approved change
order requests, and written changes of scope of services approved by the Owner, all of which form the
Agreement and are as fully a part of the Agreement as if attached to this Agreement or repeated herein.
1.3 RELATIONSHIP OF PARTIES
The CMAR accepts the relationship of trust and confidence established with the Owner by this Agreement,
and covenants with the Owner to furnish the CMAR's reasonable skill and judgment and to cooperate with
the Architect in furthering the interests of the Owner. The CMAR shall furnish construction administration
and management services and use the CMAR's best efforts to perform the project in an expeditious and
economical manner consistent with the interests of the Owner. The Owner shall endeavor to promote
harmony and cooperation among the Owner, Architect, CMAR and other persons or entities employed by
the Owner for the Project.
1.4 GENERAL CONDITIONS
For the Construction Phase, the General Conditions of the Contract shall be the Owner's construction
contract, General Conditions ("Owner's Construction General Conditions"), included with this Agreement
as Attachment 1, and the Proposal Submission -Information Request, including the CMAR's Project
General Conditions Detail, dated October 23, 2018, a copy of which is attached as Attachment 2. Both
Attachments 1 and 2 are incorporated herein for all purposes by reference. The term "Contractor" as used
in Attachment 1 shall mean the CMAR.
1.5 CONFLICTS
This Agreement, the Contract Documents, and the documents required to be provided constitute the entire
agreement of the parties hereto and supersede any prior written or oral agreements and understandings
between the parties. If any provision of this Agreement or any provision of the Contract Documents,
conflicts or is inconsistent with any other provision of the Contract Documents, then the conflict or
inconsistency will be resolved first by reference to the terms of this Agreement, then to Owner's
Construction General Conditions, Attachment 1, then to CMAR's General Conditions, Attachment 2, and
then to Contract Specifications and Drawings, unless a state or federal law, regulation or restriction would
require otherwise, in which case the applicable state or federal provision would control.
ARTICLE 2
CMAR'S RESPONSIBILITIES
2.1 GENERAL PROVISIONS
2.1.1 The CMAR shall perform the services described in this Article. The services to be provided
under Sections 2.2 and 2.3 constitute the Preconstruction Phase services. If the Owner and CMAR
agree in writing, after consultation with the Architect, the Construction Phase may commence
before the Preconstruction Phase is completed, in which case both phases shall proceed
concurrently. The CMAR shall perform the duties of and shall hold the rights of a CMAR as set
forth in Subchapter F of Chapter 2269 of the Texas Government Code.
2.1.2 The CMAR shall, in collaboration with the Owner, the Owner's legal counsel, and the
Architect, assist with compliance by all parties with Subchapter F, Chapter 2269 of the Texas
Government Code and all other applicable statutory provisions regarding the Work.
2.1.3 CMAR covenants that all the Work shall be performed in a good and workmanlike manner
and that all Materials furnished and used in connection therewith shall be new and subject to
approval by Architect, except as otherwise expressly provided for in the Drawings and
-2-
Specifications. CMAR shall cause all Materials and other parts of the Work to be readily available
as and when required or needed for or in connection with the construction, furnishing, and
equipping of the Work.
2.1.4 CMAR shall provide competent supervision of all phases of the Work and shall cause the
Work to be performed in accordance with the Drawings and Specifications and all things indicated
or implied there from. Prior to commencement of construction, CMAR shall prepare and submit
for Owner's written approval the Progress Schedules for the Work. These schedules shall indicate
the dates for the starting and completion of the various stages of construction and shall be revised
as required by the conditions of the Work, subject to the Owner's prior written approval.
2.1.5 CMAR shall prepare or cause to be prepared, as part of the Work, all shop drawings and
other submittals not made a part of the Drawings and Specifications which are required. CMAR
will also provide and be responsible for all general conditions of the Work such as hoists, safety
equipment, portable toilets, and other necessary provisions, the cost of rental for which shall be
part of construction cost. The CMAR may delegate safety responsibilities for the Work to
subcontractors and trade contractors; however, such delegation shall not relieve the CMAR of any
of its duties or liabilities to the Owner under this Agreement. Unless expressly provided herein to
the contrary, subcontractors, trade creditors, trade contractors, and suppliers shall not be third party
beneficiaries of the rights or benefits of the Owner created in this Agreement.
2.2 PRECONSTRUCTION PHASE
2.2.1 PRELIMINARY EVALUATION
The CMAR shall provide a preliminary evaluation of the Owner's program and Work budget
requirements, each in terms of the other.
2.2.2 CONSULTATION
CMAR with the Architect shall jointly schedule and attend regular meetings with the Owner and
Architect. The CMAR shall consult with the Owner and Architect regarding site use and
improvements, and the selection of materials, building systems and equipment. The CMAR shall
provide recommendations on construction feasibility; actions designed to minimize adverse effects
of labor or material shortages; time requirements for procurement, installation and construction
completion; and, factors related to construction cost including estimates of alternative designs or
materials, preliminary budgets and possible economies.
2.2.3 PRELIMINARY WORK SCHEDULE
When the Work requirements described in Paragraph 3.1.1 have been sufficiently identified, the
CMAR shall prepare, and periodically update, a preliminary Work schedule for the Architect's
review and the Owner's written approval. The CMAR shall obtain the Architect's approval of the
portion of the preliminary Work schedule relating to the performance of the Architect's services.
The CMAR shall coordinate and integrate the preliminary Work schedule with the services and
activities of the Owner, Architect and CMAR. As design proceeds, the preliminary Work schedule
shall be updated to indicate proposed activity sequences and durations, milestone dates for receipt
and approval of pertinent information, submittal of a GMP proposal, preparation and processing of
shop drawings and samples, delivery of materials or equipment requiring long -lead time
procurement, Owner's occupancy requirements showing portions of the Work having occupancy
priority, and proposed date of Substantial Completion (as defined by the American Institute of
Architects, here and throughout). if preliminary Work schedule updates indicate that previously
approved schedules may not be met, the CMAR shall make appropriate recommendations to the
Owner and Architect.
2.2.4 PHASED CONSTRUCTION
The CMAR shall make recommendations to the Owner and Architect regarding the phased issuance
of Drawings and Specifications to facilitate phased construction of the Work, if such phased
construction is appropriate for the Work, taking into consideration such factors as economies, time
of performance, availability of labor and materials, and provisions for temporary facilities.
-3-
2.2.5 PRELIMINARY COST ESTIMATES
2.2.5.1 When the Owner has sufficiently identified the Work requirements and the
Architect has prepared other basic design criteria, the CMAR shall prepare, for the review
of the Architect and written approval of the Owner, a preliminary cost estimate utilizing
area, volume or similar conceptual estimating techniques.
2.2.5.2 When Schematic Design Documents have been prepared by the Architect and
approved by the Owner, the CMAR shall prepare for the review of the Architect and written
approval of the Owner, a more detailed cost estimate with supporting data. During the
preparation of the Design Development Documents, the CMAR shall update and refine this
cost estimate at appropriate intervals agreed to by the Owner, Architect and CMAR.
2.2.5.3 When Design Development Documents have been prepared by the Architect and
approved by the Owner, the CMAR shall prepare a detailed cost estimate with supporting
data for review by the Architect and written approval by the Owner. During the preparation
of the Construction Documents, the CMAR shall update and refine this cost estimate at
appropriate intervals agreed to by the Owner, Architect and CMAR.
2.2.5.4 If any cost estimate submitted to the Owner exceeds previously approved cost
estimates or the Owner's budget, the CMAR shall make appropriate recommendations to
the Owner and Architect.
2.2.6 SUBCONTRACTORS, TRADE CONTRACTORS AND SUPPLIERS
The CMAR shall seek to develop subcontractor interest in the Work, subcontractors, trade
contractors and suppliers shall be selected in the manner provided in Subchapter F of Chapter 2269,
of the Texas Government Code. The CMAR shall furnish to the Owner and Architect for their
information a list of possible subcontractors and trade contractors, including suppliers who are to
furnish materials or equipment fabricated to a special design, from which proposals will be
requested for each principal portion of the Work. The Architect will promptly reply in writing to
the CMAR if the Architect or Owner knows of any objection to such subcontractor, trade contractor
or supplier. The receipt of such list shall not require the Owner or Architect to investigate the
qualifications of proposed subcontractors, trade contractors or suppliers, nor shall it waive the right
of the Owner or Architect later to object to or reject any proposed subcontractor, trade contractor
or supplier.
2.2.7 LONG -LEAD TIME ITEMS
The CMAR shall recommend to the Owner and Architect a schedule for procurement of long -lead
time items which will constitute part of the Work as required that meets the Work schedule. If such
long -lead time items are procured by the Owner, they shall be procured on terms and conditions
acceptable to the CMAR. Upon the Owner's acceptance of the CMAR's Guaranteed Maximum
Price (GMP) proposal, all contracts for such items shall be assigned by the Owner to the CMAR,
who shall accept responsibility for such items as if procured by the CMAR. The CMAR shall
expedite the delivery of long -lead time items.
2.2.8 EXTENT OF RESPONSIBILITY
The CMAR does not warrant or guarantee cost estimates and schedules except as may be included
as part of the GMP. The recommendations and advice of the CMAR concerning design alternatives
shall be subject to the review and approval of the Owner and the Owner's professional consultants.
It is not the CMAR's responsibility to ascertain that the Drawings and Specifications are in
accordance with applicable laws, statutes, and ordinances, building codes, rules and regulations.
However, if the CMAR recognizes that portions of the Drawings and Specifications are at variance
therewith, the CMAR shall promptly notify the Architect and Owner in writing.
2.2.9 EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION
The CMAR shall comply with applicable laws, regulations and special requirements of the Contract
Documents regarding equal employment opportunity and affirmative action programs.
-4-
2.3 GUARANTEED MAXIMUM PRICE PROPOSAL AND CONTRACT TIME
2.3.1 When the Drawings and Specifications are sufficiently complete, and after the bids and
responses of the subcontractors and trade contractors have been reviewed and evaluated by the
CMAR and the CMAR has made its recommendations to the Owner of the bids and responses to
be accepted, the CMAR shall propose a GMP, which shall be the sum of the estimated Cost of the
Work and the CMAR's Fee.
2.3.2 As the Drawings and Specifications may not be finished at the time the GMP proposal is
prepared, the CMAR shall provide in the GMP for further development of the Drawings and
Specifications by the Architect that is consistent with the Contract Documents and reasonably
inferable there from. Such further development does not include such things as changes in scope,
systems, kinds and quality of materials, finishes or equipment, all of which, if required, shall be
incorporated by Change Order.
2.3.3 The estimated Cost of the Work shall include the CMAR's contingency, a sum established
by the CMAR for the CMAR's exclusive use to cover costs arising under Paragraph 2.3.2 and other
costs which are properly reimbursable as Cost of the Work but not the basis for a Change Order.
The contingency shall be included in the GMP. Any unused portion of the contingency shall be
retained by the Owner.
2.3.4 BASIS OF GUARANTEED MAXIMUM PRICE
The CMAR shall include with the GMP proposal a written statement of its basis, which shall
include:
2.3.4.1 A list of the Drawings and Specifications, including all addenda thereto and the
Conditions of the Contract, which were used in preparation of the GMP proposal.
2.3.4.2 A list of allowances and a statement of their basis.
2.3.4.3 A list of the clarifications and assumptions made by the CMAR in the preparation
of the GMP proposal to supplement the information contained in the Drawings and
Specifications.
2.3.4.4 The proposed GMP, including a statement of the estimated cost organized by trade
categories, allowances, contingency, and other items and the fee that comprise the GMP.
2.3.4.5 Number of days required for substantial completion including construction
schedule from and after issuance of a notice to proceed to actual date of substantial
completion.
2.3.5 The CMAR shall meet with the Owner and Architect to review the GMP proposal and the
written statement of its basis. In the event that the Owner or Architect discovers any inconsistencies
or inaccuracies in the information presented, they shall promptly notify the CMAR, who shall make
appropriate adjustments to the GMP proposal, its basis or both.
2.3.6 Unless the Owner accepts the GMP proposal in writing on or before the date specified in
the proposal for such acceptance and so notifies the CMAR, the GMP proposal shall not be
effective. CMAR will then have 21 days to re -submit the GMP for Owner's review for acceptance.
2.3.7 Prior to the Owner's acceptance of the CMAR's GMP proposal and issuance of a Notice
to Proceed, the CMAR shall not incur any cost to be reimbursed as part of the Cost of the Work,
except as the Owner may specifically authorize in writing.
2.3.8 Upon acceptance by the Owner of the GMP proposal which will require the approval of
the Owner's governing body, the GMP and its basis shall be set forth in Amendment No. 1. The
GMP shall be subject to additions and deductions by a change in the Work as provided in the
Contract Documents and the date of Substantial Completion shall be subject to adjustment as
provided in the Contract Documents.
2.3.9 The Owner shall authorize and cause the Architect to revise the Drawings and
52
Specifications to the extent necessary to reflect the agreed -upon assumptions and clarifications
contained in Amendment No. 1. Such revised Drawings and Specifications shall be furnished to
the CMAR in accordance with schedules agreed to by the Owner, Architect and CMAR. The
CMAR shall promptly notify the Architect and Owner if such revised Drawings and Specifications
are inconsistent with the agreed -upon assumptions and clarifications.
2.3.10 The GMP shall include in the Cost of the Work only those taxes which are enacted at the
time the GMP is established. The Work is exempt from state sales taxes on material incorporated
in the Work. CMAR will accept exemption certificates from the Owner and, where required, will
require trade contractors and subcontractors to segregate materials and labor costs.
2.4 CONSTRUCTION PHASE
2.4.1 GENERAL
2.4.1.1 The Construction Phase shall commence on the earlier of:
(1) the Owner's acceptance of the CMAR's GMP proposal and issuance of a
Notice to Proceed, or
(2) the Owner's first authorization to the CMAR to:
(a) award a subcontract, or
(b) undertake construction Work with the CMAR's own forces, or
(c) issue a purchase order for materials or equipment required for the Work.
2.4.2 BIDDING AND ADMINISTRATION
2.4.2.1 The CMAR shall publicly advertise, as prescribed for a governmental entity under
Subchapter F, Chapter 2269 of the Texas Government Code and in the manner prescribed
under Section 271.025 of the Texas Local Government Code, and receive bids or proposals
from trade contractors, subcontractors or suppliers for the performance of all major
elements of the Work other than the minor work that may be included in the general
conditions. The CMAR may seek to perform portions of the work itself if the CMAR
submits its bid or proposal for those portions of the work in the same manner as all other
trade contractors, subcontractors, or suppliers and if the Owner determines that the
CMAR's bid or proposal provides the "best value", as that term is used in Subchapter F,
Chapter 2269 of the Texas Government Code, for the Owner.
2.4.2.2 The CMAR shall open bids as required by law in the presence of the Owner's
representatives or Architect, who shall review all trade contractor, subcontractor, or
supplier bids or proposals in a manner that does not disclose the contents of the bid or
proposal during the selection process to a person not employed by the CMAR, Architect,
Engineer, if applicable, or Owner. All bids or proposals shall be made public after the
award of the contract or not later than the seventh day after the date of final selection of
bids or proposals, whichever is later.
2.4.2.3 If the CMAR reviews, evaluates, and recommends to the Owner a bid or proposal
from a trade contractor, subcontractor, or supplier, but the Owner requires another bid or
proposal to be accepted, the Owner shall compensate the CMAR by a change in
compensation, time and/or GMP for any additional cost and risk that the CMAR may incur
because of the Owner's requirement that another bid or proposal be accepted.
2.4.2.4 If a selected trade contractor, subcontractor, or supplier defaults in the
performance of its work or fails to execute a subcontract after being selected in accordance
with Subparagraphs 2.4.2.1 through 2.4.2.3 above, the CMAR, may, without advertising,
fulfill the contract requirements itself or select a replacement trade contractor,
subcontractor, or supplier to fulfill the contract requirements.
2.4.2.5 The CMAR shall enter into contracts with subcontractors, materials suppliers and
trade contractors which are selected on the basis of best value to the Owner. The CMAR
!S�
shall enter into a separate contract or an amendment to this contract with respect to any
portions of the Work which the CMAR was awarded and which will be performed by the
CMAR's staff or employees. The CMAR may perform all minor work that may be
included in the general conditions; and, may seek to perform portions of the major elements
of the Work if the CMAR submits its bid or proposal for those portions of the work, one
day prior to the bid due date, in the same manner as all other trade contractors or
subcontractors; and, the Owner determines that the CMAR's bid or proposal provides the
best value for the Owner.
2.4.2.6 Subcontracts and agreements with suppliers furnishing materials or equipment
fabricated to a special design shall conform to the payment provisions of Paragraphs 7.1.8
and 7.1.9 and shall not be awarded on the basis of cost plus a fee without the prior consent
of the Owner.
2.4.2.7 The CMAR shall schedule and conduct meetings at which the Owner, Architect,
CMAR and appropriate subcontractors can discuss the status of the Work. The CMAR
shall prepare and promptly distribute meeting minutes.
2.4.2.8 Promptly after the Owner's acceptance of the GMP proposal, the CMAR shall
prepare a schedule in accordance with Attachment 1, including the Owner's occupancy
requirements.
2.4.2.9 The CMAR shall provide at least monthly written reports to the Owner and
Architect on the progress of the entire Work. The CMAR shall maintain a daily log
containing a record of relevant weather conditions at the Work site, subcontractors working
on the Work site, number of workers on the Work site, Work accomplished, problems
encountered and other similar relevant data as the Owner may reasonably require. The log
shall be continuously available to the Owner and Architect.
2.4.2.10The CMAR shall develop a system of cost control for the Work, including regular
monitoring of actual costs for activities in progress and estimates for uncompleted tasks
and proposed changes. The CMAR ghall identify variances between actual and estimated
costs and report the variances to the Owner and Architect at regular intervals.
2.5 PROFESSIONAL SERVICES
The CMAR shall not be required to provide professional services which constitute the practice of
Architecture or Engineering, unless such services are specifically required by the Contract Documents for
a portion of the Work or unless the CMAR has specifically agreed in writing to provide such services. In
such event, the CMAR shall cause such services to be performed by appropriately licensed professionals.
2.6 UNSAFE MATERIALS
If reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons
resulting from a material or substance encountered but not created on the site by the CMAR, the CMAR
shall, upon recognizing the condition, immediately stop Work in the affected area and report the condition
to the Owner and Architect in writing. The Owner shall be responsible for obtaining the services of a
licensed laboratory to verify the presence or absence of the material or substance reported by the CMAR
and, in the event such material or substance is found to be present, to verify that it has been rendered
harmless. Unless otherwise required by the Contract Documents, the Owner shall furnish in writing to the
CMAR and Architect the names and qualifications of persons or entities who are to perform tests verifying
the presence or absence of such material or substance or who are to perform the task of removal or safe
containment of such material or substance. The CMAR and Architect will promptly reply to the Owner in
writing stating whether or not either has reasonable objection to the persons or entities proposed by the
Owner. If either the CMAR or Architect has an objection to a person or entity proposed by the Owner, the
Owner shall propose another to whom the CMAR and Architect have no reasonable objection.
-7-
2.7 INDEMNIFICATION
2.7.1 GENERAL INDEMNIFICATION. CMAR AGREES TO INDEMNIFY, DEFEND,
AND HOLD OWNER, ITS COUNCIL MEMBERS, BOARD AND COMMISSION
MEMBERS, OFFICIALS, AGENTS, GUESTS, INVITEES, CONSULTANTS AND
EMPLOYEES FREE AND HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS,
DEMANDS, PROCEEDINGS, SUITS, JUDGMENTS, COSTS, PENALTIES, FINES,
DAMAGES, LOSSES, ATTORNEYS' FEES AND EXPENSES ADSSERTED BY ANY
PERSON OR PERSONS, INCLUDING AGENTS OR EMPLOYEES OF CONSTRUCTION
MANAGER OR OWNER, BY REASON OF DEATH OR INJURY TO PERSONS, OR
LOSS OR DAMAGE TO PROPERTY, RESULTING FROM OR ARISING OUT OF, THE
VIOLATION OF ANY LAW OR REGULATION OR IN ANY MANNER ATTRIBUTABLE
TO ANY ACT OF COMMISSION, OMISSION, NEGLIGENCE OR FAULT OF
CONSTRUCTION MANAGER, ITS AGENTS OR EMPLOYEES, OR THE JOINT
NEGLIGENCE OF CMAR AND ANY PARTY INDEMNIFIED HEREUNDER, AS A
CONSEQUENCE OF ITS EXECUTION OR PERFORMANCE OF THIS CONTRACT OR
SUSTAINED 1N OR UPON THE WORK PREMISES, OR AS A RESULT OF ANYTHING
CLAIMED TO BE DONE OR ADMITTED TO BE DONE BY CONSTRUCTION
MANAGER HEREUNDER. THIS INDEMNIFICATION SHALL SURVIVE THE TERM
OF THIS CONTRACT AS LONG AS ANY LIABILITY COULD BE ASSERTED.
NOTHING HEREIN SHALL REQUIRE CONSTRUCTION MANAGER TO INDEMNIFY,
DEFEND OR HOLD HARMLESS ANY INDEMNIFIED PARTY FOR THE
INDEMNIFIED PARTY'S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
2.7.2 PROSPECTIVE APPLICATION. ANY AND ALL INDEMNITY PROVIDED FOR
IN THIS CONTRACT SHALL SURVIVE THE EXPIRATION OR TERMINATION OF
THIS CONTRACT AND THE DISCHARGE OF ALL OTHER OBLIGATIONS OWED BY
THE PARTIES TO EACH OTHER HEREUNDER AND SHALL APPLY
PROSPECTIVELY NOT ONLY DURING THE TERM OF THIS CONTRACT BUT
THEREAFTER SO LONG AS ANY LIABILITY (INCLUDING BUT NOT LIMITED TO
LIABILITY FOR CLOSURE AND POST CLOSURE COSTS) COULD BE ASSERTED IN
REGARD TO ANY ACTS OR OMISSIONS OF CONSTRUCTION MANAGER IN
PERFORMING UNDER THIS CONTRACT.
2.8 WAGE REQUIREMENTS
2.8.1 Pursuant to Chapter 2258, Texas Government Code, all contractors and any subcontractor
involved in the construction of a public work shall pay not less than the prevailing rates as per diem
wages in the locality at the time of construction to all laborers, workmen and mechanics employed
by them in the execution of this contract. CMAR shall assure that these requirements are met for
the Work and shall insure that every contract or subcontract relating to the Work requires, on behalf
of Owner, that the prevailing wage rates be paid. The City of Lubbock has adopted the City of
Lubbock Wage Determinations for use in Texas pursuant to and in accordance with the Texas
Government Code, Section 2258.
2.8.2 Any contractor or subcontractor who violates these provisions shall pay to the Owner the
sum due in accordance with Texas Government Code Section 2258.023 for each worker employed
for each calendar day or part of the day that the worker is paid less than the wage rate stipulated in
the scale of prevailing wages applicable to this Work.
ARTICLE 3
OWNER'S RESPONSIBILITIES
3.1 INFORMATION AND SERVICES
3.1.1 The Owner shall provide full information in a timely manner regarding the requirements
of the Work, together with a program which sets forth the Owner's objectives, constraints and
-8-
criteria, including space requirements and relationships, flexibility and expandability requirements,
special equipment and systems, and site requirements.
3.1.2 The Owner, upon written request from the CMAR, shall furnish evidence of Work
financing prior to the start of the Construction Phase and from time to time thereafter as the CMAR
may request. Furnishing of such evidence shall be a condition precedent to commencement or
continuation of the Work.
3.1.3 The Owner shall establish and update an overall budget for the Work, based on consultation
with the CMAR and Architect, which shall include contingencies for changes in the Work and other
costs which are the responsibility of the Owner.
3.1.4 STRUCTURAL AND ENVIRONMENTAL TESTS, SURVEYS AND REPORTS
3.1.4.1 Throughout the entire Project, Owner shall provide or contract for, independently
of the CMAR, the testing of construction materials engineering, and the verification of
testing services necessary for the acceptance of the Work by the Owner. The Owner shall
select these services in accordance with Section 2254.004 of the Texas Government Code.
To the greatest extent allowed by applicable law, (a) the CMAR shall participate with the
Owner in the selection of persons who will provide such testing and verification services,
and (b) the Owner will not retain or use the services of any such persons if the CMAR
presents reasonable objections to such retention or use. In the event that (a) CMAR
reasonably and in good faith relies upon "testing of construction materials engineering",
"verification of testing services necessary for the acceptance of the Work by the Owner",
or any other testing or inspection provided by the Owner under this Subparagraph 3.1.4.1
(hereinafter collectively "Owner Provided Testing and Inspection"), (b) any Owner
Provided Testing and Inspection is faulty or erroneous and CMAR does not know of and
should not reasonably have known of such fault or error, and (c) the CMAR is required to
perform additional Work as the results of its reliance upon such erroneous or faulty Owner
Provided Testing and Inspection, then a Change Order shall be prepared and signed in
accordance with the terms of Attachment 1.
3.1.4.2 In the Preconstruction Phase, the Owner shall furnish the following with
reasonable promptness and at the Owner's expense, and the CMAR shall be entitled to rely
upon the accuracy of any such information, reports, surveys, drawings and tests in
possession of or prepared at direction of the Owner in Owner's discretion and described in
Clauses 3.1.4.2.1 through 3.1.4.2.5, except to the extent that the CMAR knows or
reasonably should know of any inaccuracy.
3.1.4.2.1 Reports, surveys, drawings and tests concerning the conditions of the
site which are required by law.
3.1.4.2.2 Surveys describing physical characteristics, legal limitations and
utility locations for the site of the Project, and a written legal description of the
site. The surveys and legal information shall include, as applicable, grades and
lines of streets, alleys, pavements and adjoining property and structures; adjacent
drainage; rights -of -way, restrictions, easements, encroachments, zoning, deed
restrictions, boundaries and contours of the site; locations, dimensions and
necessary data pertaining to existing buildings, other improvements and trees; and
information concerning available utility services and lines, both public and private,
above and below grade, including inverts and depths. All information on the
surveys shall be referenced to a Project benchmark.
3.1.4.2.3 The services of geotechnical engineers when such services are
demonstrated to be reasonably required by the CMAR. Such services may include
but are not limited to test borings, test pits, determinations of soil bearing values,
percolation tests, evaluations of hazardous materials, ground corrosion and
resistivity tests, including necessary operations for anticipating subsoil conditions,
MI
with reports and appropriate professional recommendations.
3.1.4.2.4 Structural, mechanical, chemical, air and water pollution tests, tests
for hazardous materials, and other laboratory and environmental tests, inspections
and reports which are required by law.
3.1.4.2.5 The services of other consultants when such services are reasonably
required by the scope of the Project and are requested by the CMAR.
3.2 OWNER'S DESIGNATED REPRESENTATIVE
3.2.1 The Owner shall designate a representative who shall have express authority to the extent
permitted by law or City Charter, and as authorized by City Council, to bind the Owner with respect
to all matters requiring the Owner's approval or authorization. This representative shall have the
authority to make decisions on behalf of the Owner concerning estimates and schedules,
construction budgets, and changes in the Work, and shall render such decisions promptly and
furnish information expeditiously, so as to avoid unreasonable delay in the services or Work of the
CMAR.
3.2.2 The Owner designates the following officers as representatives who shall be fully
acquainted with the Project and have the stated authority:
(1) The City Manager to approve changes in the Work not to exceed $25,000 per
change order and only if the change order does not extend the date of substantial
completion of any contract by more than ten (10) days;
(2) The City Manager shall render decisions, promptly, consistent with the Project
schedule;
(3) The City Manager or his Designee to furnish information expeditiously as
requested by the CMAR.
3.3 ARCHITECT
The Owner has designated the aforenamed Architect to provide the Basic Services, including normal
structural, mechanical and electrical engineering services, other than cost estimating services, described in
the current Architectural Services Agreement, entered into on June 28, 2018, for the Project. The Owner
shall authorize and cause the Architect to provide those Additional Services as described in the
Architectural Services Agreement as requested by the CMAR which must necessarily be provided by the
Architect for the Preconstruction and Construction Phases of the Project. Such services shall be provided
in accordance with time schedules agreed to by the Owner, Architect and CMAR. Upon request of the
CMAR, the Owner shall furnish to the CMAR a copy of the Architectural Services Agreement with the
Architect, from which compensation provisions may be deleted.
3.4 LEGAL REQUIREMENTS
The Owner shall advise the Architect and CMAR of any special legal requirements of which the Owner is
aware relating specifically to the Project which differ from those generally applicable to construction in the
jurisdiction of the Project. The Owner shall famish such legal services as are necessary to provide the
information and services required under Section 3.1.
ARTICLE 4
COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES
The Owner shall compensate and make payments to the CMAR for Preconstruction Phase services as
follows:
4.1 COMPENSATION
4.1.1 For the services described in Sections 2.1 and 2.2 the CMAR's compensation shall be based
on the fees proposed in the CMAR response to RFP No. 19-14424-TF dated October 23, 2018 copy
of which is attached hereto, identified as Attachment 2.
-10-
4.1.2 Compensation for Preconstruction Phase services may be equitably adjusted by written
agreement of the parties if CMAR services extend beyond that originally contemplated under this
Agreement, or the scope of services is significantly modified.
4.2 PAYMENTS
4.2.1 Payments are due and payable thirty (30) days from the date (a) the CMAR's invoice and
any required supporting documentation is presented to the Owner or the Architect, and the Architect
issues a Certificate for Payment; or (b) the date the performance of the services under this
Agreement are substantially performed in accordance with the terms of this Agreement, whichever
occurs later.
ARTICLE 5
COMPENSATION FOR CONSTRUCTION PHASE SERVICES
The Owner shall compensate the CMAR for the Construction Phase services pursuant to provisions of the
Owner's Construction General Conditions and the following: Contractor's General Conditions and fees
proposed, Attachment 2
5.1 COMPENSATION
5.1.1 For the CMAR's performance of the Work as described in Section 2.4, the Owner shall
pay the CMAR the Contract Sum consisting of the Cost of the Work For Construction Phase as
defined in Article 6, plus the CMAR's Fee determined to be TWO PERCENT (2.0%) of the actual
allowed Cost of Work For Construction Phase, Section 2.4, incurred by the CMAR, not to exceed
the GMP. Contractor shall provide a schedule of values for their general conditions fee, breaking
out start-up costs as well a monthly operational cost. Contractor shall be compensated based on
the status of the Project in the construction timeline.
5.2 GUARANTEED MAXIMUM PRICE
5.2.1 The sum of the Cost of the Work and the CMAR's Fee are guaranteed by the CMAR not
to exceed the amount to be provided in Amendment No. 1, as per Section 2.3, subject to additions
and deductions by changes in the Work as provided in the Contract Documents. Such maximum
sum as adjusted by approved changes in the Work (Change Orders) is referred to in the Contract
Documents as the Guaranteed Maximum Price (GMP). Costs which would cause the GMP to be
exceeded shall be paid by the CMAR without reimbursement by the Owner.
5.3 CHANGES IN THE WORK
5.3.1 Adjustments to the GMP on account of changes in the Scope of Work subsequent to the
execution of Amendment No. 1 may be determined by any of the methods listed in Attachment
1.
5.3.2 In calculating adjustments to subcontracts (except those awarded with the Owner's prior
consent on the basis of cost plus a fee), the terms "cost" and "fee" as used in Attachment 1 and
the terms "costs" and "a reasonable allowance for overhead and profit" as used in Attachment 1
shall have the meanings assigned to them in that document and shall not be modified by this Article
5. Adjustments to subcontracts or contracts with trade contractors awarded with the Owner's prior
consent on the basis of cost plus a fee shall be calculated in accordance with the terms of those
subcontracts.
5.3.3 In calculating adjustments to the Contract, the terms "cost" and "costs" as used in the
above -referenced provisions of Attachment 1 shall mean the Cost of the Work actually incurred
by the CMAR as defined in Article 6 of this Agreement and the terms "and a reasonable allowance
for overhead and profit" shall mean the CMAR's Fee as defined in Paragraph 5.1.1 of this
Agreement.
5.3.4 If no specific provision is made in Paragraph 5.1.1 for adjustment of the CMAR's Fee in
the case of changes in the Work, or if the extent of such changes is such, in the aggregate, that
-11-
application of the adjustment provisions of Paragraph 5.1.1 will cause substantial inequity to the
Owner or CMAR, the CMAR's Fee shall be equitably adjusted on the basis of the fee established
for the original Work.
ARTICLE 6
COST OF THE WORK FOR CONSTRUCTION PHASE
6.1 COSTS TO BE REIMBURSED
6.1.1 The term "Cost of the Work" shall mean costs necessarily incurred by the CMAR in the
proper performance of the Work in substantial compliance with this Agreement and the Contract
Documents. Such costs shall be at rates not higher than those customarily paid at the place of the
Project except with prior written consent of the Owner. The Cost of the Work shall include only
the items set forth in this Article 6 ("Cost of the Work").
6.1.2 LABOR COSTS
Labor Costs shall include:
6.1.2.1 That portion of wages of construction workers employed by the CMAR in the
proper, direct performance of the Work at the Work site.
6.1.2.2 The portion of wages or salaries of the CMAR's supervisory and administrative
personnel when stationed at the Work site with the Owner's agreement. The portion of
wages and salaries of the CMAR's Project Manager directly attributable to the project work
shall be included in the Cost of the Work.
6.1.2.3 Wages and salaries of the Construction Manager's supervisory or administrative
personnel engaged, at factories, workshops or on the road, in expediting the production or
transportation of materials or equipment required for the Work, but only for that portion of
their time required for the Work.
6.1.2.4 Costs paid or incurred by the CMAR for employee related taxes, insurance,
contributions, assessment and benefits required by law or collective bargaining
agreements, provided that such costs are based on wages and salaries included in the Cost
of the Work under Subparagraphs 6.1.2.1 through 6.1.2.3.
6.1.3 SUBCONTRACT AND TRADE CONTRACTOR COSTS
Payments made by the CMAR to Subcontractors and Trade Contractors in accordance with the
requirements of the subcontracts and trade contractor contracts for work performed in substantial
compliance with this Agreement and the Contract Documents.
6.1.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE
COMPLETED CONSTRUCTION
Costs incurred by the CMAR for materials and equipment actually incorporated into the completed
construction of the Work.
6.1.4.1 Costs, including transportation and storage, of materials and equipment
incorporated or to be incorporated in the completed construction.
6.1.4.2 Costs of materials described in the preceding Subparagraph 6.1.4.1 in excess of
those actually installed but required to provide reasonable allowance for waste and for
spoilage. Unused excess materials, if any, shall be handed over to the Owner at the
completion of the Work or, at the Owner's option, shall be sold by the CMAR; and amounts
realized from such sales shall be credited to the Owner as a deduction from the Cost of the
Work.
6.1.5 COSTS
6.1.5.1 Costs incurred relating to transportation, installation, maintenance, dismantling
and removal of materials, supplies, temporary facilities, machinery, equipment, and hand
-12-
tools (collectively "supplies and equipment") not customarily owned by the construction
workers, which are provided by the CMAR at the site and fully consumed in the
performance of the Work; and cost of supplies and equipment newly acquired by the
CMAR for the Work, less a salvage value on such items if not fully consumed, as agreed
to by the Owner and CMAR, whether sold to others or retained by the CMAR. Cost for
items previously used by the CMAR shall mean fair market value in used condition.
6.1.5.2 Rental charges for temporary facilities, machinery, equipment, and hand tools not
customarily owned by the construction workers, which are provided by the CMAR at the
site, whether rented from the CMAR or others, and costs of transportation, installation,
minor repairs and replacements, dismantling and removal thereof Rates and quantities of
equipment rented shall be subject to the Owner's prior written approval.
6.1.5.3 Costs of removal of debris from the site.
6.1.5.4 Reproduction costs, costs of facsimile transmissions and long-distance telephone
calls, postage and express delivery charges, telephone service at the site excluding cell
phone costs and reasonable, receipted petty cash expenses of the site office.
6.1.5.5 That portion of the reasonable travel and subsistence expenses of the CMAR's
personnel incurred while traveling in discharge of duties connected with the Work.
6.1.6 MISCELLANEOUS COSTS
6.1.6.1 Sales, use or similar taxes imposed by a governmental authority which are related
to the Work and for which the CMAR is liable.
6.1.6.2 Fees and assessments for the building permit and for other permits, licenses and
inspections for which the CMAR is required by the Contract Documents to pay.
6.1.6.3 Fees of testing laboratories for tests required by the Contract Documents, except
those related to nonconforming work other than that for which payment is permitted by
Subparagraph 6.1.8.2,
6.1.6.4 Startup services as per 6.1 General Conditions.
6.1.6.5 Costs of professional engineers and/or other costs permitted under the General
Conditions in Attachment 1.
6.1.7 OTHER COSTS
Other costs incurred in the performance of the Work if and to the extent approved in advance in
writing by the Owner.
6.1.8 EMERGENCIES AND REPAIRS TO DAMAGED WORK
The Cost of the Work shall also include costs described in Paragraph 6.1.1 which are incurred by
the CMAR:
6.1.8.1 In taking action to prevent threatened damage, injury or loss in case of an
emergency affecting the safety of persons and property, as provided in Attachment 1.
6.1.8.2 In repairing or correcting damaged Work executed by the CMAR or the CMAR's
Subcontractors or suppliers, provided that such damaged Work was not caused by the
negligence or failure to fulfill a specific responsibility to the Owner of the CMAR or the
CMAR's foremen, engineers or superintendents, or other supervisory, administrative or
managerial personnel of the CMAR, set forth in this Agreement, or the failure of the
CMAR's personnel to supervise adequately the Work of the Subcontractors or suppliers,
and only to the extent that the cost of repair or correction is not recoverable by the CMAR
from insurance, subcontractors or suppliers.
6.1.9 The costs described in Paragraphs 6.1.1 through 6.1.8 shall be included in the Cost of the
Work notwithstanding any provision of Attachment 1, Owners Construction General Conditions,
-13-
or other Conditions of the Contract which may require the CMAR to pay such costs, unless such
costs are excluded by the provisions of Section 6.2.
6.1.10 In the event of conflict and or inconsistency between this document and the Attachment
1, Owner's General Construction Conditions, the provisions in this document shall control.
6.2 COSTS NOT TO BE REIMBURSED
Costs not to be reimbursed by Owner include:
6.2.1 The Cost of the Work shall not include:
6.2.1.1 Salaries and other compensation of the CMAR's personnel stationed at the
CMAR's principal office or offices other than the project work site office, except as
specifically provided in Subparagraphs 6.1.2.2 and 6.1.2.3.
6.2.1.2 Expenses of the CMAR's principal office and offices other than the project work
site office except as specifically provided in Section 6.1.
6.2.1.3 Overhead and general expenses, except as may be expressly included in Section
6.1.
6.2.1.4 The CMAR's capital expenses, including interest on the CMAR's capital
employed for the Work.
6.2.1.5 Rental costs of machinery and equipment, except as specifically provided in
Subparagraph 6.1.5.2.
6.2.1.6 Costs due to the negligence of the CMAR or to the failure of the CMAR to fulfill
a specific responsibility to the Owner set forth in this Agreement.
6.2.1.7 Costs incurred in the performance of Preconstruction Phase Services.
6.2.1.8 Except as provided in Paragraph 6.1.7, any cost not specifically and expressly
described in Section 6.1.
6.2.1.9 Any cost which would cause the GMP to be exceeded.
6.3 DISCOUNTS REBATES AND REFUNDS
6.3.1 All refunds, discounts, rebates, premiums, or other credits received by the CMAR, and
amounts received from sales of surplus materials and equipment shall accrue to the benefit of the
Owner.
6.3.2 Amounts which accrue to the Owner in accordance with the provisions of Paragraph 6.3.1
shall be credited to the Owner as a deduction from the Cost of the Work.
6.4 ACCOUNTING RECORDS
6.4.1 The CMAR shall keep full and detailed accounts and exercise such controls as may be
necessary for proper financial management under this Agreement; the accounting and control
systems employed shall comply with minimum requirements satisfactory to the Owner. The Owner
and the Owner's accountants shall be afforded access to the CMAR's records, books,
correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers,
memoranda and other data relating to this Project, and the CMAR shall preserve these for a period
of three years after final payment, or for such longer period as may be required by law.
Notwithstanding any provision to the contrary herein, the CMAR shall be solely responsible for
uninsured losses relating to theft or embezzlement, and such loss shall not be included as a
reimbursable cost or expense under this agreement.
-14-
ARTICLE 7
CONSTRUCTION PHASE
7.1 PROGRESS PAYMENTS
7.1.1 Based upon Applications for Payment submitted to the Architect by the CMAR and
Certificates for Payment issued by the Architect, the Owner shall make progress payments on
account of the Contract Price to the CMAR as provided below and elsewhere in the Contract
Documents.
7.1.2 The period covered by each Application for Payment shall be one calendar month ending
on the last day of the month, or as follows:
7.1.3 Applications for Payment accompanied with required supporting documentation shall be
payable as provided in Subparagraph 4.2.1 "Payments" herein above.
7.1.4 With each Application for Payment, the CMAR shall make available upon request by the
Owner or Architect payrolls, petty cash accounts, receipted invoices or invoices with check
vouchers attached, and any other evidence required by the Owner or Architect to demonstrate that
cash disbursements already made by the CMAR on account of the Cost of the Work equal or exceed
(1) progress payments already received by the CMAR; less (2) that portion of those payments
attributable to the CMAR's Fee; plus (3) payrolls for the period covered by the present Application
for Payment.
7.1.5 Each Application for Payment shall be based upon the most recent schedule of values
submitted by the CMAR in accordance with the Contract Documents. The schedule of values shall
allocate the entire GMP among the various portions of the Work, except that the CMAR's Fee shall
be shown as a single separate item. The schedule of values shall be prepared in such form and
supported by such data to substantiate its accuracy as the Architect may require. This schedule,
unless objected to by the Architect, shall be used as a basis for reviewing the CMAR's Applications
for Payment.
7.1.6 Applications for Payment shall show the percentage completion of each portion of the
Work as of the end of the period covered by the Application for Payment. The "percentage
completion" shall be the lesser of (1) the percentage of that portion of the Work which has actually
been completed or (2) the percentage obtained by dividing (a) the expense which has actually been
incurred by the CMAR on account of that portion of the Work for which the CMAR has made or
intends to make actual payment prior to the next Application for Payment by (b) the share of the
GMP allocated to that portion of the Work in the schedule of values. In no event shall the payment
obligation of the Owner for cost of the Work on the Construction Stage exceed the percentage of
completion times the GMP.
7.1.7 Subject to the other provisions of the Contract Documents, and at a total value not to exceed
the GMP, the amount of each progress payment shall be computed as follows:
7.1.7.1 Take that portion of the GMP properly allocable to completed Work as determined
by multiplying the percentage completion of each portion of the Work by the share of the
GMP allocated to that portion of the Work in the schedule of values. Pending final
determination of cost to the Owner of changes in the Work, amounts not in dispute may be
included as provided in Attachment 1, even though the GMP has not yet been adjusted by
Change Order.
7.1.7.2 Add that portion of the GMP properly allocable to materials and equipment
delivered and suitably stored at the site for subsequent incorporation in the Work or, if
approved in advance by the Owner, suitably stored off the site at a location agreed upon in
writing.
7.1.7.3 Add the CMAR's fee, less retainage of three percent (3%). The CMAR's Fee shall
be computed upon the Cost of the Work described in the two preceding Subparagraphs at
-15-
the rate stated in Paragraph 5.1.1 or, if the CMAR's Fee is stated as a fixed sum in that
Subparagraph, shall be an amount which bears the same ratio to that fixed -sum Fee as the
Cost of the Work in the two preceding Subparagraphs bears to a reasonable estimate of the
probable Cost of the Work upon its completion.
7.1.7.4 Subtract the aggregate of previous payments made by the Owner.
7.1.7.5 Subtract the shortfall, if any, indicated by the CMAR in the documentation
required by Paragraph 7.1.4 to substantiate prior Applications for Payment, or resulting
from errors subsequently discovered by the Owner's accountants in such documentation.
7.1.7.6 Subtract amounts, if any, for which the Architect has withheld or nullified a
Certificate for Payment as provided in Attachment 1.
7.1.8 Except with the Owner's prior written approval, payments to Subcontractors shall be
subject to retention of not less than Five Percent (5%). The Owner and the CMAR shall agree upon
a mutually acceptable procedure for review and approval of payments and retention for
subcontractors.
7.1.9 Except with the Owner's prior written approval, the CMAR shall not make advance
payments to suppliers for materials or equipment which have not been delivered at the site.
7.1.10 In taking action on the CMAR's Applications for Payment, the Architect shall be entitled
to rely on the accuracy and completeness of the information furnished by the CMAR and shall not
be deemed to represent that the Architect has made a detailed examination, audit or arithmetic
verification of the documentation submitted in accordance with Paragraph 7.1.4 or other supporting
data; that the Architect has made exhaustive or continuous on -site inspections or that the Architect
has made examinations to ascertain how or for what purposes the CMAR has used amounts
previously paid on account of the Contract. Such examinations, audits and verifications, if required
by the Owner, will be performed by the Owner's accountants acting in the sole interest of the
Owner.
7.1.11 In each Application for Payment, CMAR shall certify that such Application for Payment
represents a fair estimate of cost reimbursable to CMAR under the terms of Article 5 or Article 6,
supported by the documentation submitted in accordance with Paragraph 7.1.4, or other supporting
data.
7.1.12 The CMAR warrants that title to all Work covered by an Application for Payment will pass
to the Owner no later than the time of payment. The CMAR further warrants that upon submittal
of an Application for Payment, all Work for which payments have been received from the Owner
shall be free and clear of liens, claims, security interest or other encumbrances in favor of the
CMAR or any other person or entity whatsoever.
7.1.13 The CMAR shall within fourteen (14) days following receipt of payment from the Owner
pay all obligations for labor and materials performed and furnished by others in connection with
the construction, furnishing and equipping of the improvements and the performance of the Work,
and shall, if requested, provide the Owner with evidence of such payment. CMAR's failure to
make payments within such time shall constitute a material breach of this contract. CMAR shall
include a provision in each of its subcontracts imposing the same payment obligations on its
subcontractors and trade contractors as are applicable to the CMAR hereunder, and if the Owner
so requests, shall provide copies of such subcontractor or trade contractor payments to the Owner.
If the CMAR has failed to make payments promptly to the CMAR's subcontractors or for material
or labor used in the Work for which the Owner has made payment to the CMAR, the Owner shall
be entitled to withhold payment to the CMAR in part or in whole to the extent necessary to protect
the Owner as determined in the sole discretion of Owner.
7.1.14 If the Architect disapproves an Application for Payment (in whole or in part) the specific
reasons therefore (see 4.5 of the Attachment 1) shall be communicated in writing to CMAR within
20 days after submission of said application and the amount of money reasonably withheld for each
-16-
such reason shall be stated. The balance, if any, of any such Payment application shall be paid in
a timely manner.
7.2 FINAL PAYMENT
7.2.1 Final payment shall be made by the Owner to the CMAR when (1) the Contract has been
fully performed by the CMAR except for the CMAR's responsibility to correct nonconforming
work, as provided in Attachment 1, and to satisfy other requirements, if any, which necessarily
survive final payment; (2) a final Application for Payment and a final accounting for the Cost of
the Work shall be submitted by the CMAR to the Architect; and (3) a final Certificate for Payment
shall then been issued by the Architect in accordance with, and subject to, this Article; such final
payment shall be made by the Owner not more than 30 days after the issuance of the Architect's
Final Certificate for Payment.
7.2.2 The amount of the final payment shall be calculated as follows:
7.2.2.1 Take the sum of the Cost of the Work substantiated by the CMAR's final
accounting and the CMAR's Fee; but not more than the GMP.
7.2.2.2 Subtract amounts, if any, for which the Architect withholds, in whole or in part, a
final Certificate for Payment as provided in Attachment 1 or other provisions of the
Contract Documents.
7.2.2.3 Subtract the aggregate of previous payments made by the Owner.
7.2.2.4 If the aggregate of previous payments made by the Owner exceeds the amount due
the CMAR, the CMAR shall reimburse the difference to the Owner.
7.2.3 The Owner's accountants or auditor will review and report in writing on the CMAR's final
accounting within 30 days after delivery of the final accounting to the Architect by the CMAR.
Based upon such cost of the Work as the Owner's accountant's or auditor's report to be
substantiated by the CMAR's final accounting, and provided the other conditions of Paragraph
7.2.1 have been met, the Architect will, within seven days after receipt of the written report of the
Owner's accountants, or auditor, either issue to the Owner a final Certificate for Payment with a
copy to the CMAR, or notify the CMAR and Owner in writing of the Architect's reasons for
withholding a certificate as provided in Attachment 1. The time periods stated in this Section 7.2
supersede those stated in Attachment 1.
7.2.4 Notwithstanding anything to the contrary herein, the Owner shall only hold such sums
following Substantial Completion as are deemed reasonably necessary to protect the Owner from
the consequences of defective work, incomplete work, and notice of unpaid claims from
subcontractors, trade contractors and suppliers and/or the requirements of Texas law. If in the event
an audit conducted by the Owner reveals that sums have been improperly paid to the CMAR, such
sums shall be immediately returned and/or repaid to the Owner by the CMAR within ten (10) days
of the demand by Owner.
7.2.5 if the Owner's accountants or auditor report the Cost of the Work as substantiated by the
CMAR's final accounting to be less than claimed by the CMAR, the CMAR shall be entitled to
proceed in accordance with Section 9.1 "RESOLUTION OF CONTRACT DISPUTES", without a
further decision of the Architect. Pending a final resolution of the disputed amount, the Owner
shall pay the CMAR the amount certified in the Architect's final Certificate for Payment.
7.2.6 If subsequent to final payment and at the Owner's request, the CMAR incurs costs
described in Section 6.1 and not excluded by Section 6.2 (1) to correct nonconforming work, or (2)
arising from the resolution of disputes, the Owner shall reimburse the CMAR such costs and the
CMAR's Fee, if any, related thereto on the same basis as if such costs had been incurred prior to
final payment, but not in excess of the GMP. If the CMAR has participated in savings, the amount
of such savings shall be recalculated and appropriate credit given to the Owner in determining the
net amount to be paid by the Owner to the CMAR.
-17-
7.2.7 When all of the Work is completed and is ready for a final inspection, the CMAR shall
notify the Owner and the Architect thereof in writing. Thereupon, the Architect will make final
inspection of the Work and, if the Work is complete in full accordance with this Contract, the
Architect will promptly issue a final Certificate for Payment certifying to the Owner that the Project
is complete and the CMAR is entitled to the remainder of the unpaid Contract Price, less any
amount withheld pursuant to this Contract. A Final Requisition for the Disbursement of Project
Costs accompanied by the Architect's Certificate and Affidavit and Waivers of Lien required of
the CMAR under Paragraph 7.2.8 below shall accompany the Final Application for Payment. If
the Architect is unable to issue its Final Certificate for Payment, the specific reasons therefore shall
be given in writing to the CMAR along with the reasonable sum held for each such reason, and if
the Architect is required to repeat its final inspection of the Work, the CMAR shall bear the cost of
such repeat final inspection(s) which cost may be deducted by the Owner from the CMAR's final
payment.
7.2.8 The CMAR shall not be entitled to final payment unless and until it submits to the Architect
(a) its affidavit that the payrolls, invoices for materials and equipment, and other liabilities
connected with the Work for which the Owner, or the Owners property might be responsible for,
have been fully paid or otherwise satisfied; (b) releases and waivers of liens (excluding retainage)
from all Subcontractors of the CMAR and of any and all other parties required by the Architect or
the Owner; and (c) consent of Surety, if any, to final payment. If any third party fails or refuses to
provide a release of claims or waiver of lien as required by Owner, the CMAR shall furnish a bond
satisfactory to the Owner to discharge any such lien or indemnify the Owner from liability.
7.2.9 Acceptance of final payment shall constitute a waiver of all claims against the Owner by
the CMAR except for those claims previously made in writing against the Owner by the CMAR,
pending at the time of final payment, and identified in writing by the CMAR as unsettled at the
time of its request for final payment.
7.3 LIEN PRIORITIES
7.3.1 The CMAR shall keep Owner and Owner's property free from all mechanic's and
materialman's liens and all other liens and claims, legal or equitable, arising out of the Work
hereunder. In the event any such lien or claim is timely filed by any one claiming by, through or
under CMAR, the CMAR shall discharge the same within a reasonable time.
7.3.2 CMAR does hereby subordinate any and all Iiens, rights and interest (whether choate or
inchoate and including, without limitation, all mechanic's and materialman's liens under the
applicable laws of the State of Texas, whether contractual, statutory or constitutional) owned,
claimed or held, or to be owned, claimed or held by CMAR in and to any part of the Work or the
Project on which the work is performed, to the lien securing payment of sums now or hereafter
borrowed by Owner, its successors or assigns, in connection with the development, design, and/or
sums now or hereafter borrowed by Owner, its successors or assigns, in connection with the
development, design, and/or construction of the Project. CMAR shall execute such further and
additional evidence of the subordination of liens, rights and interests as Owner, Owner's lenders,
or any ground Lessee may require. The subordination of CMAR's lien is made in consideration of
the execution and delivery of this Agreement, and shall be applicable despite any dispute between
the parties to, or any default by Owner under this Agreement or otherwise.
7.3.3 CMAR shall include in every contract or subcontract relating to the work to which it is a
party or in which it represents Owner, and in each and every lower tier subcontract, provisions (i)
that the person or entity doing the work, performing labor or furnishing materials pursuant to a
subcontract agrees to subordinate any mechanic's or materialman's lien or any other claim against
any part of the Work or the property in which the Work is performed or materials furnished under
the Contract Documents or such subcontracts, to the lien securing payment of sums now or
hereafter borrowed by Owner, its successors and assigns, in connection with the development,
design and/or construction of the Project and to all liens and rights, (ii) that the required
subordinations are made in consideration of and as an inducement to the execution and delivery of
-18-
the Contract Documents and the subcontract in which it appears, and shall be applicable despite
any dispute between or among Owner, CMAR, any trade contractor or subcontractor, or any default
by Owner, CMAR, or any trade contractor or subcontractor, and (iii) that the Owner, its successors
and assigns, and lenders are express third party beneficiaries who have supplied consideration for
such subordinations.
7.4 TIME OF COMPLETION AND LIQUIDATED DAMAGES
7.4.1 It is understood and mutually agreed by and between the Construction Manager and Owner
that the date of beginning and the time for completion of the Work are essential conditions of this
Agreement. The CMAR agrees that the Work will be prosecuted regularly and diligently at such
rate of progress as will insure full completion thereof within the time frame set forth in Amendment
No. 1.
7.4.2 CMAR agrees that the Contract Time, i.e. the period for Substantial Completion of the
Work shall be determined and agreed upon simultaneously with the agreement as to the GMP as
provided in Section 2.2. The Contract Time includes the number of days that Work is anticipated
to be delayed due to inclement weather and/or unworkable conditions.
7.4.3 For the purposes of this Agreement, a calendar day constitutes twenty-four (24) hours of
time and is any one of seven days of a week, including Saturday, Sunday, and Holidays, regardless
of whether a "working day" or not, weather conditions, or any condition or situation which may
delay construction.
7.4.4 The Contract Time may be extended as provided in Attachment 1.
7.4.5 The basis for completion under this Section 7.4 will be Substantial Completion as defined
in Attachment 1.
7.4.6 If, after execution of the Certificate of Substantial Completion, the CMAR fails to fully
complete items found incomplete or deficient during a final inspection within thirty (30) calendar
days or fails to provide specified Project close-out documents within thirty (30) calendar days, then
the remaining retainage - including allowances for incomplete work - may be retained by Owner
and at Owner's sole discretion, may be applied toward completion of the Work by Owner, or may
be disbursed after all such defective items are remedied and all close-out data is received, and such
shall not be deemed a waiver of any other right or remedy of Owner under this Agreement, at law
or in equity.
7.4.7 Liquidated Damages. CMAR agrees that shall CMAR neglect, fail or refuse to complete
substantially or cause the failure of Substantial Completion of any part of the Project within the
Contract time or any proper extension thereof granted by the Owner, then the CMAR does hereby
agree to pay the Owner the sum of ONE THOUSAND FIVE HUNDRED AND NO/100
DOLLARS ($1,500.00) per day, not as a penalty but as liquidated delay damages for each and
every calendar day following the Contract Time or proper extension thereof that Substantial
Completion of the Project has not been achieved. Owner and CMAR agree and stipulate that it is
difficult to fix the actual delay damage sustained by the Owner in this scenario. However, the said
amount is fixed and agreed upon by CMAR and the Owner as a reasonable estimate of the actual
amount of delay damages which the Owner would sustain in such a case. The parties agree that
liquidated delay damages specified herein shall be the sole measure of delay damages if and in the
event Substantial Completion is not achieved as required by this Agreement.
ARTICLE 8
INSURANCE AND BONDS
8.1 INSURANCE REQUIRED OF THE CMAR
During both phases of the Project, the CMAR shall purchase and maintain insurance as set forth herein.
Such insurance shall be written for not less than the following limits as set forth below:
-19-
8.1.1 The CMAR must provide the Owner with certificates of insurance prior to beginning work
on the Project. Each certificate of insurance must include the Project name. The certificates are to
be approved by Owner and Architect before work commences. The certificates of coverage must
be signed by a person authorized by the insurer to bind coverage on its behalf. The certificates
must contain enough detail to allow the Owner to confirm that the following requirements have
been fulfilled by the Owner's insurance coverage. Owner reserves the right to require complete,
certified copies of insurance policies at any time. CMAR shall name the Owner and Architect as
additional insureds on the Commercial General Liability, Commercial Automobile Liability, and
Commercial Umbrella Liability policies and such insurance shall be primary to any other insurance.
Approval of the certificates or policies by the Owner does not relieve the CMAR of its duty of
indemnification. If the coverage period shown on the current certificate of coverage ends during
the duration of the Project, the CMAR shall, prior to the end of the coverage period, provide a new
certificate of coverage showing extension of the coverage.
8.1.2 The required limits of insurance coverage may be satisfied by any combination of primary,
excess, or umbrella liability insurance coverage, provided the primary policy complies with the
requirements detailed below and the excesslumbrella policies are written on a "following form"
basis. The CMAR may maintain reasonable deductibles, subject to approval by the Owner. The
required limits of insurance do not establish a limit on the CMAR's liability.
8.1.2.1 Commercial General Liability Insurance (Primary Additional Insured and Waiver
of Subrogation required)
The Contractor shall have Comprehensive General Liability Insurance with limits of
1000 000 Combined Single Limit in the aggregate and per occurrence to include:
Products & Completed Operations Hazard
Contractual Liability
Personal Injury & Advertising Injury
Fire Damage (Any one Fire)
8.1.2.2 Comprehensive Automobile Liability Insurance (Waiver of Subrogation Required)
The Contractor shall have Comprehensive Automobile Liability Insurance with limits of
not less than: Bodily Injury/Property Damage, $1,000,000 Combined Single Limit per
occurrence, to include all owned and non -owned cars including: Employers Non -
ownership Liability Hired and Non -owned Vehicles.
8.1.2.3 Builder's Risk Insurance/Installation Floater Insurance.
The Contractor shall obtain a Builder's Risk policy in the amount of 100% of the total
contract price (100% of potential loss) naming the City of Lubbock as insured.
8.1.2.4 Umbrella Liability Insurance (Primary Additional Insured and Waiver of
Subrogation required)
The Contractor shall have Umbrella Liability Insurance in the amount of 4 0$ • 00.000 on all
contracts with coverage to correspond with Comprehensive General Liability and
Comprehensive Automobile Liability coverage's.
8.1.2.5 Workers' Compensation and Employers Liability Insurance (Waiver of
Subrogation Required)
Worker's Compensation Insurance covering all employees whether employed by the
Contractor or any Subcontractor on the job with Employers Liability of at least l 000y.
Additional requirements are provided in Paragraph 8.1.5.
8.1.3 Each required insurance policy shall:
8.1.3.1 Waive all rights of subrogation against the Owner for losses arising from Work
performed by the CMAR for the Owner;
-20-
8.1.3.2 Require the insured to immediately notify the Owner of any material change in the
insurance coverage;
8.1.3.3 Provide the Owner with 30 day notice of cancellation, non -renewal, or termination
of insurance by return receipt mail (10 days as respects non-payment of premium);
8.1.3.4 Be written by an insurer that is licensed to do business in Texas, classified by the
Texas Department of Insurance as an "admitted" insurer, and maintains and A.M. Best
rating of ANI1 or better throughout the Project until the Owner has accepted the work;
8.1.3.5 Be written on forms that have been filed and approved by the Texas Department
of insurance;
8.1.3.6 Be primary and non-contributory insurance as respects Owner, its officers, elected
officials, employees, agents and representatives. Any insurance maintained by Owner will
be in excess of CMAR's insurance and will not contribute to it;
8.1.3.7 Apply separate to each insured against whom a claim is made or suit brought,
except with respect to the limits of the insurer's liability;
8.1.3.8 Be maintained from the time Work commences until services are completed and
accepted by Owner; and,
8.1.3.9 Must not contain any special limitations on the scope of coverage provided to the
Owner, its officers, elected officials, employees, agents and representatives.
8.1.4 The CMAR shall include all contractors, subcontractors and trade contractors as insureds
under its policies or furnish Owner separate certificates for each contractor, subcontractor and trade
contractor. All coverage required of contractors, subcontractors and trade contractors shall be
subject to all of the insurance requirements detailed above except each contractor, subcontractor
and trade contractor's general aggregate limit on Commercial General Liability shall be not less
than $1,000,000.00. The requirements of the Commercial Umbrella coverage do not apply to the
contractors, subcontractors and trade contractors.
8.1.5 State Mandated Workers' Compensation Insurance Requirements
8.1.5.1 Definitions (applicable to Paragraph 8.1.5)
a. Certificate of Coverage ("certificate") - A copy of a certificate of insurance
or a certificate of authority to self -insure issued by the Texas Department of
Insurance Division of Workers' Compensation (Workers' Compensation) showing
statutory workers' compensation insurance coverage for the persons or entities'
employees, executives, officers, partners and proprietors providing services on the
Project, for the duration of the Project.
b. Duration of the Project - Includes the time from the beginning of the Work
on the project until the CMAR's Work on the project has been completed and
accepted by Owner.
C. Persons providing services on the project ("subcontractor" in 406.096 of
the Texas Labor Code). Includes all persons or entities performing all or part of
the services the CMAR had undertaken to perform on the subject, regardless of
whether the person contracted directly with the CMAR and regardless that person
has employees. This includes, without limitation, independent contractors,
subcontractors, sub -contractors, motor carriers, Owner -operators, employees,
executives, officers, partners and proprietors of any such entity, trade contractors,
or employees of any entity which furnishes persons to provide services on the
project.
d. Services - Include, without limitation, providing, hauling, or delivering
equipment or materials, or providing labor, transportation, or other service related
-21-
to the project.
8.1.5.2 The CMAR shall provide workers' compensation insurance coverage, based on
proper reporting of classification codes and payroll amounts and filing of any coverage
agreements, which meet the statutory requirements of the Texas Labor Code (401.011(44))
for all employees of the CMAR providing services on the project, for the duration of the
Project.
8.1.5.3 The CMAR must provide a certificate of coverage to Owner prior to execution of
this Agreement.
8.1.5.4 If the coverage period shown on the CMAR's current certificate of coverage ends
during the duration of the Project, the CMAR must, prior to the end of the coverage period,
rile a new certificate of coverage with Owner showing that coverage has been extended.
8.1.5.5 The CMAR shall obtain from each person providing services on the project, and
provide to Owner:
a. A certificate of coverage, prior to that person beginning performance on
the project, so Owner will have on file certificates of coverage showing coverage
for all persons providing services on the project; and,
b. No later than seven days after receipt by the CMAR, a new certificate
showing extension of the coverage, if the coverage period shown on the current
certificate of coverage ends during the duration of the project.
8.1.5.6 The CMAR shall retain all required certificates of coverage for the duration of the
project and for three years thereafter.
8.1.5.7 The CMAR shall notify Owner in writing by certified mail or personal delivery,
within 10 days after the CMAR knew or should have known, of any change that materially
affects the provision of the coverage of any person providing services on the project.
8.1.5.8 The CMAR shall post on the Project site a notice, in the text, form and manner
prescribed by the Workers' Compensation, informing all persons providing services on the
project that they are required to be covered, and stating how a person may verify coverage
and report lack of coverage.
8.1.5.9 The CMAR shall contractually require each person with whom it contracts to
provide services on the project, to:
a. Provide coverage, based on proper reporting of classification codes and
payroll amounts and filing of any coverage agreements, which meet the statutory
requirements of the Texas Labor Code [401.011 (44)] for all employees of the
Contractors, Subcontractors and Trade Contractors providing services on the
project, for the duration of the project;
b. Provide to the CMAR, prior to that person beginning performance on the
project, a certificate of coverage showing that coverage is being provided for all
employees of the person providing services on the project, for the duration of the
project.
C. Provide the CMAR, prior to the end of the coverage period, a new
certificate of coverage showing extension of the coverage, if the coverage period
shown on the current certificate of coverage ends during the duration of the project.
d. Obtain from each other person with whom it contracts, and provide to the
Owner:
0) A certificate of coverage, prior to the other person beginning work
on the project;
-22-
(ii) A new certificate of coverage showing extension of the coverage,
if the coverage period shown on the current certificate of coverage ends
during the duration of the project;
(iii) Retain all required certificates of coverage on file for the duration
of the project and for three years thereafter;
(iv) Notify Owner in writing by certified mail or personal delivery,
within 10 days after the CMAR knew or should have known, of any
change that materially affects the provision of the coverage of any person
providing services on the project; and,
(v) Contractually require each person with whom it contracts to
perform as required by clauses (i) - (iv) of this subparagraph, with
certificates of coverage, to be provided to the person for whom they are
providing services.
e. The CMAR's failure to comply with any of the provisions of Paragraph
8.1.5 is a breach of contract by the CMAR which entitles Owner to declare this
Agreement void if the CMAR does not remedy the breach within ten (10) days
after notice of breach from Owner.
8.1.6 The CMAR shall purchase and maintain Builders Risk Insurance with limits that are at all
times sufficient to cover one hundred percent (100%) of the total contract price. The policy should
be written to cover the interests of the Owner, the CMAR, subcontractors, trade contractors, and
all subcontractors. Further, the policy shall:
8.1.6.1 Stipulate that the insurer will not seek recovery, through subrogation or otherwise,
against any insured (even if their negligence causes a covered loss), regardless of the extent
of the insured's insurable interest.
8.1.6.2 Be written on an "all-risk" basis, and shall provide coverage for fire, extended
coverage and physical loss or damage including theft, vandalism, malicious mischief,
collapse, sewer backup, seepage, hydrostatic testing, pneumatic testing, mechanical testing
and normal settling.
8.1.6.3 Apply to foundations, false work, temporary buildings, and debris removal
including demolition occasioned by enforcement of applicable legal requirements.
8.1.6.4 Provide coverage for consequential damage ensuing from faulty workmanship,
material, construction, or design (resulting damage only, not cost of making good the
workmanship).
8.1.6.5 Be maintained until the Owner has accepted the Project as completed or until no
one other than the Owner has an insurable interest in the Project.
8.1.6.6 Cover portions of property stored off -site (after written approval of the Owner) at
the value established by the Owner and portions of the work in transit.
8.2 PERFORMANCE BOND AND PAYMENT BOND
8.2.1 CMAR shall furnish bonds in accordance with Chapter 2253 of the Texas Government
Code. The Performance and Payment Bonds required by this Article may be in one or separate
instruments in accordance with local law. Surety companies must be licensed to do business in the
State of Texas. All Payment and Performance Bonds provided by CMAR or any subcontractor
shall comply with the requirements of Article 7.19-1 of the Texas Insurance code. The amount of
each bond provide by CMAR shall be equal to One Hundred Percent (100%) of the GMP. The
CMAR has provided or will provide a bid bond or other financial security acceptable to the Owner
so that the required Performance and Payment bonds will be delivered to Owner when a GMP is
established through Amendment No.1.
-23-
8.2.2 All bonds will be reviewed by the Architect for compliance with the Contract Documents
prior to execution of the contract and/or commencement of construction activities. In the event that
the Architect has any questions concerning the sufficiency of the bonds, the bonds will be referred
to the Owner or the Owner's representative for review and decision.
8.2.3 All bonds shall be originals. The CMAR shall require the attorney -in -fact who executes
the required bonds on behalf of the surety to affix thereto a certified and current copy of the Power -
of -Attorney. The name, address, and telephone number of a contact person for the bonding
company shall be provided.
8.2.4 Upon the request in writing of any person or entity appearing to be a potential beneficiary
of bonds covering payment of obligations arising under this Agreement, the CMAR shall promptly
furnish a copy of the bonds or shall permit a copy to be made.
8.2.5 Bonds shall be signed by an agent resident in the State of Texas and the date of the bond
shall be the date of the execution of this Agreement and/or commencement of construction
activities. If at any time during the continuance of this Agreement the surety of the CMAR's bonds
becomes insolvent, Owner shall have the right to require additional and sufficient sureties which
the CMAR shall furnish to the satisfaction of the Owner within thirty (30) days after notice to do
so. In default thereof, the CMAR may be suspended and all payment or money due to the CMAR
withheld.
8.2.6 The CMAR shall deliver the required bonds to the Owner at least three days before the
commencement of any work at the project site.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 RESOLUTION OF CONTRACT DISPUTES
9.2
9.1.1 CMAR understands and agrees that all disputes between CMAR and Owner based upon an
alleged violation of the terms of this Agreement by the Owner shall be submitted to the City
Manager for his resolution, prior to CMAR being entitled to seek judicial relief in connection
therewith. In the event that the amount of compensation in dispute hereunder exceeds $50,000.00,
the City Manager's decision shall be approved or disapproved by the City Council. CMAR shall
not be entitled to seek judicial relief unless: (i) CMAR has first received City Manager's written
decision, approved by the City Council if the amount of compensation hereunder exceeds
$25,000.00; or (ii) a period of sixty (60) days has expired, after submitting to the City Manager a
detailed statement of the dispute, accompanied by all supporting documentation (90 days if City
Manager's decision is subject to City Council approval); or (iii) Owner has waived compliance
with the procedure set forth in this section by written instruments, signed by the City Manager.
9.1.2 Before Owner shall be liable to CMAR or any of its successors or assigns for any alleged
breach of this Agreement, notice must first be given Owner within six (6) months of the date the
breach is alleged by CMAR to have occurred.
9.2.1 DEFINITIONS
Unless otherwise noted, the terms used in this Agreement shall have the same meaning as those in
Attachment 1, General Conditions of the Contract for Construction.
9.2.2 DEFAULT
If the CMAR fails to comply with any term or condition of this Agreement, or fails to perform any
of its obligations hereunder, and such default continues for a period of thirty (30) days after written
notice describing the default is delivered to CMAR, then the CMAR shall be in default. Upon the
occurrence of a default hereunder the Owner, in addition to all remedies available to it by law, may
immediately, upon written notice to CMAR, terminate this Agreement without liability to the
CMAR, whereupon all payments, advances, or other compensation paid by the Owner to the
-24-
CMAR while CMAR was in default shall be immediately returned to the Owner. The CMAR
understands and agrees that termination of this Agreement under this section shall not release the
CMAR from any obligation accruing prior to the effective date of termination. Should the CMAR
be unable or unwilling to commence to perform the services within the time provided or
contemplated herein, then, in addition to the foregoing, the CMAR shall be liable to the Owner for
all expenses incurred by the Owner in preparation and negotiation of this Agreement, as well as all
costs and expenses incurred by the Owner in the re -procurement of the services, including
consequential and incidental damages. This Paragraph 9.2.2 "Default" is in addition to, and is
intended not to supersede or modify, the terms and conditions set forth in Attachment 1 "City of
Lubbock, Texas - Owner's Construction General Conditions", including the provisions of
Section 2.27 "Owner's Right to Terminate", thereof.
9.2.3 EXTENT OF CONTRACT
This Contract, which includes this Agreement and the other documents incorporated herein by
reference, represents the entire and integrated agreement between the Owner and CMAR and
supersedes all prior negotiations, representations or agreements, either written or oral. This
Agreement may be amended only by written instrument signed by both the Owner and CMAR. If
anything in any document incorporated into this Agreement is inconsistent with this Agreement,
this Agreement shall govern.
9.2.4 OWNERSHIP AND USE OF DOCUMENTS
The Drawings, Specifications and other documents prepared by the Architect, and copies thereof
furnished to the CMAR, are for use solely with respect to this Project. They are not to be used by
the CMAR, subcontractors, sub -subcontractors, trade contractors or suppliers on other projects, or
for additions to this Project outside the scope of the Work, without the specific written consent of
the Owner. The CMAR, subcontractors, sub -subcontractors, trade contractors and suppliers are
granted a limited license to use and reproduce applicable portions of the Drawings, Specifications
and other documents prepared by the Architect appropriate to and for use in the execution of their
work under the Contract Documents.
9.2.5 GOVERNING LAW
The Contract shall be governed by the law of the State of Texas.
9.2.6 ASSIGNMENT
The Owner and CMAR respectively bind themselves, their partners, successors, assigns and legal
representatives to the other party hereto and to partners, successors, assigns and legal
representatives of such other party in respect to covenants, agreements and obligations contained
in the Contract Documents. Neither party to the contract shall assign the Contract as a whole
without written consent of the other. If either party attempts to make such an assignment without
such consent, that party shall nevertheless remain legally responsible for all obligations under the
Contract.
9.2.7 VENUE
Venue shall be in Lubbock County, Texas.
9.2.8 WARRANTY
The CMAR agrees to continue to serve as the point of contact for warranty purposes for a period
of time not less than one (1) year and longer if the contract documents provide for warranty
periods in excess of one year. This service will be at no additional fee. The CMAR's duties
during this period will be to serve as the Owner's representative in contacting the appropriate
contractors, subcontractors, trade contractors or suppliers for their warranty obligations and
taking such steps as necessary to ensure that the warranty obligations are complied with.
9.2.9 AMENDMENT
This Agreement, representing the entire Agreement between the parties may be amended or
supplemented by mutual agreement of the parties' hereto in writing and executed by each party.
The amendment or supplementation shall be in writing attached and incorporated in this
-25-
Agreement.
9.2.10 INVALID, ILLEGAL OR UNENFORCEABLE PROVISIONS
In the event that any one or more of the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provisions, and the Agreement shall be construed as if
such invalid, illegal, or unenforceable provision had never been contained in it. To the extent that
any term or provision of this Agreement is in conflict with or inconsistent with a provision of
Subchapter F of Chapter 2269 of the Texas Government Code, the provisions of said Subchapter
F shall prevail and apply.
9.2.11 NOTICE
Unless otherwise specified herein, any notice required or permitted under this Agreement shall be
deemed sufficient if given in writing and personally delivered, sent by overnight express delivery
service or deposited in the United States mail, postage prepaid, by registered or certified mail
(return receipt requested) to the party to whom said notice is to be given. Notices delivered in
person, or by overnight express delivery service, shall be deemed to be served effective as of the
date the notice is delivered. Notices sent by registered or certified mail (return receipt requested)
shall be deemed to be served by close of business on the third business day after the date said
notice is postmarked to the addressee, postage prepaid.
Until changed by written notice given by one party to the other, the addresses of the parties for
purposes herein shall be as follows:
IF TO OWNER:
Name:
Jarrett Atkinson
Title:
City Manager
Address:
1625 13th Street
Lubbock, Texas 79457
Telephone:
806-775-2016
With a copy to:
Name:
Chad Weaver
Title:
City Attorney
Address:
1625 13th Street
Lubbock, Texas 79457
IF TO CONSTRUCTION MANAGER:
Name:
Lee Lewis Construction, Inc.
Attention:
Liz Loangren
Address:
7810 Orlando Avenue
Lubbock, Texas, 79423
9.2.12 RELATIONSHIP OF PARTIES
9.2.12.1 CMAR undertakes performance of the Work as an independent contractor.
Nothing herein shall create a relationship of employer and employee, joint venture, or
partnership between the Owner and CMAR, its agents, representatives, employees,
engineers, consultants, contractors or subcontractors, for any purpose whatsoever. Nothing
herein shall create a relationship of principal and agent between Owner and CMAR, its
agents, employees, representatives, engineers, consultants, contractors or subcontractors.
Neither party shall have the authority to bind nor obligate the other in any manner as a
result of the relationship created hereby.
9.2.12.2 Owner shall not have the right to control the manner(s) or prescribe the method(s)
by which CMAR performs the Work. CMAR shall be wholly responsible for the CMAR
services. CMAR is entirely and solely responsible for its acts and the acts of its agents,
-26-
employees, representatives, engineers, consultants, contractors and subcontractors engaged
in the performance of the Work.
9.2.12.3 CMAR's personnel shall be and remain solely the employees of CMAR, and at
no time or in any manner shall CMAR's personnel, employees, agents, representatives,
engineers, consultants, contractors or subcontractors be considered as or deemed to be
employees of Owner.
9.2.13 FINANCIAL INTEREST PROHIBITED
CMAR covenants and represents that CMAR, its officers, employees, agents, engineers,
consultants, contractors and subcontractors will have no financial interest, direct or indirect, in the
purchase or sale of any product, materials or equipment that will be recommended or required for
the construction of the Project.
9.2.14 TIME IS OF THE ESSENCE
CMAR understands and agrees that time is of the essence.
9.2.15 NO INDEMNIFICATION BY CITY
The parties expressly acknowledge that the City's authority to indemnify and/or hold harmless any
third party is governed by the Texas Constitution and any provision which purports to require
indemnification by the City is invalid.
9.2.16 NON -APPROPRIATION
The Parties understand and acknowledge that the funding of this Agreement is contained in the
City's annual budget and is subject to the approval of the City in each fiscal year. The Parties
further agree that should the governing body of the City fail to approve a budget which includes
sufficient funds for the continuance of this Agreement, or should the governing body of the City
fail to certify funds for any reason, then and upon the occurrence of such event, this Agreement
shall terminate as to the City and the City shall then have no further obligation to the any other
Party. When the funds budgeted or certified during any fiscal year by the City to discharge its
obligations under this Agreement are expended, any other Party's sole and exclusive remedy shall
be to terminate this Agreement.
9.2.17 RIGHTS AND REMEDIES RESERVED
The City reserves the right to exercise any right or remedy available to it by law, contract, equity,
or otherwise, including without limitation, the right to seek any and all forms of relief in a court of
competent jurisdiction. Further, the City shall not be subject to any arbitration process prior to
exercising its unrestricted right to seek judicial remedy. The remedies set forth herein are
cumulative and not exclusive, and may be exercised concurrently. To the extent of any conflict
between this provision and another provision in, or related to, this Agreement, the former shall
control.
9.2.18 SENATE BILL SB.252
SB 252 prohibits the City from entering into a contract with a vendor that is identified by The
Comptroller as a company known to have contracts with or provide supplies or service with Iran,
Sudan or a foreign terrorist organization.
9.2.19 HOUSE BILL HB 89
The Contractor warrants that it complies with Chapter 2270, Subtitle F, TitIe 10 of the
Texas Government Code by verifying that:
9.2.19.1 The Contractor does not boycott Israel; and
9.2.19.2 The Contractor will not boycott Israel during the term of the Agreement.
-27-
ARTICLE 10
TERMINATION OR SUSPENSION
10.1 TERMINATION DURING PRECONSTRUCTION PHASE
10.1.1 During the pre -construction phase, the Owner may terminate this Contract at any time
without cause.
10.1.2 If the Owner terminates this Contract pursuant to this Section 10.1, the CMAR shall be
equitably compensated for costs incurred for Preconstruction Phase services performed prior to
receipt of notice of termination; provided, however, that the compensation for such services shall
not exceed the compensation set forth in Paragraph 4.1.1 and that all expenses were approved by
Owner and documentation to support the details of each expense are given to Owner.
10.2 TERMINATION OR SUSPENSION DURING CONSTRUCTION PHASE
10.2.1 TERMINATION BY OWNER FOR CONVENIENCE
The Owner may at any time terminate the contract for convenience. Such termination shall go into
effect thirty (30) days after receipt of written notice from the Owner. Upon the written notice, the
CMAR shall:
10.2.1.1 Cease all operations and not enter into any further subcontracts or purchase orders;
10.2.1.2 Take actions necessary for the preservation and protection of the Work; and
10.2.1.3 Terminate all existing subcontracts and purchase orders, unless otherwise directed
by Owner in notice of termination.
10.2.2 TERMINATION BY OWNER FOR CAUSE
Termination under this section goes into effect ten (10) days after receipt of written notice from the
Owner.
10.2.2.1 Upon the written notice, the CMAR shall:
10.2.2.1.1 Cease all operations and not enter into any further subcontracts or
purchase orders;
10.2.2.1.2 Take actions necessary for the preservation and protection of the
Work; and
10.2.2.1.3 Terminate all existing subcontracts and purchase orders, unless
otherwise directed by Owner in notice of termination.
10.2.2.2 The Owner may terminate the contract for cause if the CMAR:
10.2.2.2.1 Repeatedly refuses or fails to:
10.2.2.2.1.1 Supply enough properly skilled workers or proper materials; or
10.2.2.2.1.2 Make full and timely payment to Subcontractors for materials or
labor according to CMAR and Subcontractor written agreements;
10.2.2.2.2 Repeatedly or knowingly disregards any applicable laws, statutes,
ordinances, codes, rules, regulations, or enforceable orders of a public authority;
10.2.2.2.3 Substantially breaches any provision of the Contract Documents;
10.2.2.2.4 Becomes insolvent, files a bankruptcy petition, has a receiver or
trustee appointed for all or a significant portion of the assets of the CMAR, or
performs any act of fraud;
10.2.2.2.5 Actually or constructively abandons, or puts Owner on actual or
constructive notice that it intends to abandon the Work;
10.2.2.2.6 Pails to furnish Owner with an unconditional release of lien or a
-28-
statutory bond in compliance with Subchapter H of the Texas Property Code within
thirty (30) days after an affidavit claiming a lien is recorded by a claimant claiming
through the CMAR; or
10.2.2.2.7 Shall not be able to achieve Substantial Completion within thirty (30)
days following the Date of Substantial Completion required by the Agreement,
according to the reasonable belief of the Owner when CMAR fails to achieve a
critical milestone within thirty (30) days of the date for such critical milestone set
forth in the critical path schedule; or
10.2.2.2.8 Fails to maintain insurance as required in Article 8 of this Agreement.
10.2.3 TERMINATION BY CMAR FOR CAUSE
Termination under this section go into effect ten (10) days after receipt of written notice from the
CMAR.
10.2.3.1 The CMAR may terminate the contract for cause if the Work is stopped for a
period of 90 consecutive days through no act or fault of the CMAR or Subcontractor or
their agents or employees or any other persons or entities performing portions of the Work
under direct or indirect contract with the CMAR for any of the following reasons:
10.2.3.1.1 Issuance of an order of a court or other public authority having
jurisdiction that requires all Work to be stopped;
10.2.3.1.2 An act of government, such as a declaration of national emergency
that requires all Work to be stopped;
10.2.3.1.3 Because the Owner has not made payment on a Certificate for
Payment within the time stated in the Contract Documents; or
10.2.3.1.4 The Work is stopped for a period of 60 consecutive days through no
act or fault of the CMAR or Subcontractor or their agents or employees or any
other persons performing portions of the Work under contract with the CMAR,
because:
10.2.3.1.4.1 The Owner has repeatedly failed to fulfill the Owner's obligations
under the Contract Documents with respect to matters necessary to the
progress of the Work;
10.2.3.1.4.2 The CMAR has provided an additional ten (10) days written
notice to the Owner and the Architect of such failure; and
10.2.3.1.4.3 The Work is not allowed to commence by the expiration of said
notice.
10.2.4 PAYMENT AFTER TERMINATION
In the event of termination under this article, and provided that such payment does not exceed
amount to be paid to the CMAR in the Contract Documents, the CMAR shall be paid for:
10.2.4.1 Work performed in accordance with the Contract Documents; and
10.2.4.2 Direct, actual, and unavoidable costs incurred by the CMAR prior to receipt of
written notice accompanied by written support explaining the costs to the Owner.
10.2.5 ASSIGNMENT OF SUBCONTRACTS
In the event of termination by the Owner, for convenience or for cause, and at the Owner's request
to assign Subcontractor Agreements, the CMAR shall assign Subcontractor Agreements to Owner.
Owner shall not be responsible for any obligations owed to Subcontractor by CMAR prior to
Assignment to Owner. Upon assignment, the Owner assumes the CMAR's rights and obligations
under the Subcontract Agreement with regard to the Work to be performed after the acceptance of
the assignment by the Owner.
-29-
10.3 SUSPENSION
The work may be suspended by the Owner as in Attachment 1.
ARTICLE 11
OTHER CONDITIONS AND SERVICES
11.1 COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which shall constitute an original
but all of which, when taken together, shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their
respective officials thereunto duly authorized, this the day and year above written.
EXECUTED as of the Effective Date hereof.
CITY OF LUBBOCK
DANIEL M. POPE,
MAYOR
ATTEST:
koft" A'11�
cca Garza,cretary
APPROVED AS TO CONTENT:
P,WesleyD. E et
Director of Facilities Management
APPROVED AS TO FORM:
Im &Lli�k ---
K lli Leisure,
Assistant City Attorney
Construction Manager at Risk
LEE LMVS C[ TRUCTION, INC.
1
By: �l
iz L gren,
Executive V.P.
-30-
Attachment 1
CITY OF LUBBOCK
OWNER'S CONSTRUCTION GENERAL CONDITIONS
-31-
TABLE OF CONTENTS
1. DEFINITIONS
2. GENERAL CONDITIONS
2.1 Architect/Engineer Administration of the Contract
2.2 Notice to Proceed and the Preconstruction Conference
2.3 Ownership, Copies of Documents, and Record Documents
2.4 Cooperation between Contractors
2.5 Acceptance of Work by Others
2.6 Subcontracts
2.7 (Intentionally left blank)
2.8 Permits, Laws, Taxes, and Regulations
2.9 Availability of Lands
2.10 Use of Premises
2.11 Owner's Status During Construction
2.12 Owner's Interpretations Decisions
2.13 Shop Drawings and Samples
2.14 Contractor's Supervision and Superintendence
2.15 Safety and Protection
2.16 Access to the Work and Uncovering Finished Work
2.17 Changes in the Work
2.18 Changes of Contract Price
2.19 Extra Work
2.20 Unauthorized Work
2.21 Neglected Work
2.22 Conformity with Contract Documents
2.23 Change of Contract Time
2.24 Warranty and Guarantee Regarding Work
2.25 Waivers of Claims and Continuing Obligations
2.26 Owner's Right to Stop or Suspend Work
2.27 Owner's Right to Terminate
2.28 Contractor's Right to Stop Work or Terminate
2.29 Contractor's Management Personnel
2.30 Abandonment by Contractor
3. INSURANCE REOUIREMENTS
3.1 Maintenance of Insurance
3.1.1 Certificates of Insurance
3.1.2 Required Limits of Insurance
3.1.3 Required Policy Terms
3.1.4 Subcontractors and Trade Contractors as Insureds
3.1.5 State mandated Workers' Compensation Insurance Requirements
3.2 Builders Risk Insurance
4. CONTRACT MEASUREMENT AND PAYMENT
4.1 Quantities and Measurements
4.2 Estimated Quantities
4.3 Price of Work
4.4 Partial Payment Estimates
4.4.1 Deadline
6.
7.
8.
9.
4.4.2 Payment
4.4.3 Warranty of Title
4A.4 Retainage
4.5 Approval of Payments
4.6 Substantial Completion
4.7 Partial Utilization
4.8 Final Payment
4.9 Guarantee
4.10 Payments Withheld
PROJECT REQUIREMENTS
5.1 Line and Grade
5.2 Working Day
5.3 Character of Employees
5.4 Physical and Subsurface Conditions
5.5 Reference Points
MATERIALS
6.1 Materials and Equipment
6.2 Right of the Owner to Modify Equipment and/or Methods
6.3 Owner Furnished Materials
6.4 Material Storage
6.5 Sources of Supply and Quality of Materials
6.6 Samples and Tests
6.7 Defective Materials
PROJECT MEETINGS
7.1 Pre -construction Meeting
7.2 Progress Meetings
CONSTRUCTION ADMINISTRATION
8.1 Notices to Owners and Authorities
8.2 Notification of Street Closing
8.3 Detours and Barricading
8.4 Convenience to Traffic
8.5 Unfavorable Construction Conditions
8.6 Cleaning Up
8.7 Site Administration
8.8 Load Restrictions
8.9 Applicable Codes
8.10 Other Responsibilities
EMPLOYMENT REQUIREMENTS
9.1 General
9.2 Records
9.3 Penalty
9.4 Hours of Labor
9.5 Veterans Preference
9.6 Prevailing Wage and Hour Decision
9.6.1 Exhibits A, B & C - Prevailing Wage Rates
10. INDEMNIFICATION OF OWNER
10.1 Contractor Agreement to indemnify and Hold Harmless Owner
10.2 Contractor Agreement to Indemnify Owner from Infringement of Intangible Property
Rights
10.3 No Rights Created in Third Parties
10.4 Contractor Notice of Claims to Owner
10.5 Survival of Indemnity and Hold Harmless Provisions
11. BONDS APPLICABLE TO "PUBLIC WORK CONTRACTS"
11.1 Construction Bonds
11.1.1
Bond Requirements
11.1.2
Security Bond
11.1.3
When Bonds Are Due
11.1.4
Power of Attorney
11.1.5
Bond Indemnification
11.1.6
Furnishing Bond Information
11.1.7
Claims on Payment Bonds
11.1.8
Payment Claims when Payment Bond not Required
11.1.9
Sureties
OWNER'S CONSTRUCTION GENERAL CONDITIONS
The conditions contained herein are generally applicable to the Work described. Contractor and Owner
agree to interpret and enforce the terms and conditions contained within this section only insofar as they
are applicable to the Work.
1. DEFINITIONS
Wherever used in these General Conditions or in the other Contract Documents, the following terms
shall have the meanings indicated which shall be applicable to both the singular and plural thereof:
Agreement
The written agreement between the Owner and the Contractor covering the Work to be performed,
including the Request for Proposal submission, and the Bonds and all other documents described
more fully in the executed agreement.
Architect
The Architect is the person lawfully licensed to practice architecture or any entity lawfully
practicing architecture identified as such in the Agreement and is referred to throughout the
Contract Documents as if singular in number. The term "Architect" means the Architect or the
Architect's authorized representative.
Bidder
Any individual, partnership, firm, or corporation, acting directly or through a duly authorized
representative, who submits a proposal or bid for the work contemplated.
Bond(s)
The approved form(s)of security furnished by the Contractor and its surety in accordance with the
terms set forth in the Bid and as may otherwise be requested of the Contractor in the Contract
Documents.
Calendar Day
A "Calendar Day" is any calendar day of week, month or year, no days being excepted.
Change Order
A written order to the Contractor signed by the Owner and architect covering changes in the plans,
specifications, or proposal quantities and establishing the basis of payment and contract time
adjustment, if any, for the work affected by such changes. The work, covered by a change order,
shall be within the scope of the contract.
Contract Documents
The Agreement, Plans, Specifications, Drawings, and Field Changes, change orders, or any related
addenda to the Agreement, Supplemental Agreement(s), Plans, Specifications, or Field Changes.
Contract Price
The total monies payable to the Contractor under the Contract Documents.
Contract Time
The number of calendar days allowed for completion of the Work, or completion date stated in the
Contract Documents for the completion of the Work.
Contractor
The individual, partnership, firm, or corporation primarily liable for the acceptable performance of
the Work and for the payment of all legal debts pertaining to the Work who act as directly or
through lawful agents or employees to complete the Work. "Contractor shall include "Construction
Manager" and "Construction Manager at Risk".
Engineer
A person or entity licensed to engage in the practice of engineering in the State of Texas. "Engineer"
designates the licensed engineer duly authorized by the Owner to be responsible for the engineering
aspects of the Work.
Equipment
All machinery, together with the necessary supplies for upkeep and maintenance, and all tools and
apparatus necessary for the proper construction and acceptable completion of the Work.
Extra Work
An item of work not provided for in the Contract Documents as previously modified by Change
Order or Supplemental Agreement, but which is found by the Owner to be necessary to complete
the Work within the intended scope of the Contract Documents as previously modified.
Field Change
A Field Change may be issued in the form of:
a. A written amendment of the Contract Documents signed by both parties,
b. A Change Order,
c. A written clarification or interpretation issued by the Owner in accordance with Section
2.17, or
d. A written order for a minor change or alteration in the Work issued by the Owner
pursuant to Section 2.17.
A Field Change may only be issued after execution of the Agreement.
Field Order
A written order issued by the Owner which clarifies or interprets the Contract Documents or minor
changes in the Work in accordance with Section 2.17.
Guaranteed Maximum Price (GMP)
A cost -type contract where the Contractor is compensated for actual costs incurred plus a fixed fee
subject to a not -to -exceed price. The contractor is responsible for cost overruns, unless the GMP
has been increased via formal change order. Savings resulting from cost under -runs are returned to
the owner
Materials
Any substance or building product specified for use in the construction of the Work.
Owner
A public body or authority, corporation, association, partnership, or individual for whom the Work
is to be performed. For this Agreement, the "Owner" is the City of Lubbock, located in Lubbock
County, Texas.
Partial Payment Estimate
A form filled out and signed by the Contractor covering the work performed during the period
covered by the partial payment estimate and supported by such data as the Owner or Owner's
designated agent may require, detailing but not limited to previous payments made to Contractor,
retainage to date of estimate, materials delivered but not yet incorporated into the construction, and
other information relevant to establishing the work performed and work remaining to be performed.
Partial Payment Estimates are usually issued monthly or on the same periodic basis that partial
payments are to be made under the Agreement.
Plans
The official drawings or exact reproductions which show the location, character, dimensions and
details of the Work to be done and which are to be considered as a part of the Contract Documents,
supplementary to the Specifications.
Project
The total construction of which the Work performed under the Contract Documents may be the
whole or part, to include all duties and Work to be performed as provided in the Contract
Documents.
Resident Project Representative
The "Resident Project Representative" shall be the Owner or any individual, partnership, firm or
corporation duly authorized by the Owner who is assigned to the Project, or any part thereof, and
who shall be responsible for observing the progress and quality of the Work, or any portion of the
Work, on the behalf of the Owner.
Shop Drawings
All drawings, diagrams, illustrations, brochures, schedules, and other data which are prepared by
the Contractor, a Subcontractor, manufacturer, supplier, or distributor which illustrate the
Equipment, Material, or some portion of the Work.
Specifications
A part of the Contract Documents containing the written directions and requirements for
completing the Work. Standards for specifying materials or testing which are cited in the Contract
Documents by reference shall have the same force and effect as if included in the Contract
Documents physically.
Subcontractor
An individual, firm, or corporation having a direct contract with the Contractor or with any other
Subcontractor for the performance of a part of the Work.
Substantial Completion
The date as certified by the Owner, when the construction of the Project or a specified part thereof
is sufficiently completed, in accordance with the Contract Documents, so that the Project or
specified part can be utilized for the purposes for which it was intended.
Supplemental Agreement
A written, agreement between the Contractor and the Owner covering (1) work that would increase
or decrease the total amount of the Agreement as awarded; or (2) work that is not within the scope
of the Contract Documents.
Work
Any and all obligations, duties, and responsibilities necessary to the successful completion of the
Project assigned to or undertaken by the Contractor under the Contract Documents, including the
furnishing of all labor, Materials, Equipment, and other incidentals necessary to the Contractor's
performance of all duties and obligations imposed by the Contract Documents.
Work Day
A "Work Day" is defined as a calendar day excluding Saturdays, Sundays, and legal holidays
authorized in the list prepared for the City of Lubbock for use of its employees, in which weather
or other conditions not under the control of the Contractor will permit the performance of the
principal units of work underway for a continuous period of not less than 7 hours between 8:00
a.m. and 5:00 p.m.
Work Week
The "Work Week" shall consist of a period of seven (7) successive calendar days to begin and end
as specified by the Contractor.
2. GENERAL CONDITIONS
2.1 Architect/Engineer Administration of the Contract
The Architect or Engineer will provide administration of the Contract as described in the Contract
Documents and the RFP, and will be an Owner's representative (1) during construction, (2) until
final payment is due and (3) with the Owner's concurrence, from time to time during the one-year
period for correction of Work described herein. The Architect will have authority to act on behalf
of the Owner only to the extent provided in the Contract Documents, unless otherwise modified in
writing in accordance with other provisions of the Contract.
The Architect or Engineer, as a representative of the Owner, will visit the site at intervals
appropriate to the stage of the Contractor's operations (1) to become generally familiar with and to
keep the Owner informed about the progress and quality of the portion of the Work completed, (2)
to endeavor to guard the Owner against defects and deficiencies in the Work, and (3) to determine
in general if the Work is being performed in a manner indicating that the Work, when fully
completed, will be in accordance with the Contract Documents. The Architect or Engineer will
neither have control over or charge of, nor be responsible for, the construction means, methods,
techniques, sequences or procedures, or for the safety precautions and programs in connection with
the Work, since these are solely the Contractor's rights and responsibilities under the Contract
Documents.
The Architect or Engineer will not be responsible for the Contractor's failure to perform the Work
in accordance with the requirements of the Contract Documents. The Architect will not have control
over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors,
or their agents or employees, or any other persons or entities performing portions of the Work.
Except as otherwise provided in the Contract Documents or when direct communications have been
specially authorized, the Owner and Contractor shall endeavor to communicate with each other
through the Architect or Engineer about matters arising out of or relating to the Contract.
Communications by and with the Architect's or Engineer's consultants shall be through the
Architect. Communications by and with Subcontractors and material suppliers shall be through the
Contractor. Communications by and with separate contractors shall be through the Owner.
The Architect or Engineer will have authority to reject Work that does not conform to the Contract
Documents. Whenever the Architect considers it necessary or advisable, the Architect or Engineer
will have authority to require inspection or testing of the Work, whether or not such Work is
fabricated, installed or completed. However, neither this authority of the Architect nor a decision
made in good faith either to exercise or not to exercise such authority shall give rise to a duty or
responsibility of the Architect or Engineer to the Contractor, Subcontractors, material and
equipment suppliers, their agents or employees, or other persons or entities performing portions of
the Work.
The Architect or Engineer will review and approve or take other appropriate action upon the
Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the limited
purpose of checking for conformance with information given and the design concept expressed in
the Contract Documents. The Architect or Engineer's action will be taken with reasonable
promptness as not to cause unreasonable delay in the Work or in the activities of the Owner,
Contractor or separate contractors, while allowing sufficient time in the Architect or Engineer's
professional judgment to permit adequate review. Review of such submittals is not conducted for
the purpose of determining the accuracy and completeness of equipment or systems, all of which
remain the responsibility of the Contractor as required by the Contract Documents. The Architect's
or Engineer's review of the Contractor's submittals shall not relieve the Contractor of its obligations
within the Contract Documents unless Contractor's shop drawings approved by Architect or
Engineer specifically reference change in the plans and specifications. The Architect or Engineer's
review shall not constitute approval of safety precautions or, unless otherwise specifically stated
by the Architect or Engineer, of any construction means, methods, techniques, sequences or
procedures. The Architect or Engineer's approval of a specific item shall not indicate approval of
an assembly of which the item is a component.
The Architect or Engineer will prepare Change Orders and Construction Change Directives, and
may authorize minor changes in the Work as provided herein.
The Architect or Engineer will interpret and decide matters concerning performance under and
requirements of the Contract Documents on written request of either the Owner or Contractor. The
Architect or Engineer's response to such requests will be made in writing within any time limits
agreed upon or otherwise with reasonable promptness. If no agreement is made concerning the
time within which interpretations required of the Architect or Engineer shall be furnished in
compliance with this Section, then delay shall not be recognized on account of failure by the
Architect or Engineer to furnish such interpretations until 15 days after written request is made for
them.
Interpretations and decisions of the Architect or Engineer will be consistent with the intent of and
reasonably inferable from the Contract Documents and will be in writing or in the form of drawings.
When making such interpretations and initial decisions, the Architect or Engineer will endeavor to
secure faithful performance by both Owner and Contractor, will not show partiality to either and
will not be liable for results of interpretations or decisions so rendered in good faith.
The Architect or Engineer's decisions on matters relating to aesthetic effect will be final if
consistent with the intent expressed in the Contract Documents.
2.2 Notice to Proceed and the Preconstruction Conference
No work shall be performed until issuance of a written notice to proceed by the Owner. The notice
to proceed shall be issued only upon completion of the Preconstruction Meeting and all related
requirements as provided for in Section 7.1 of Attachment 1 are complete.
2.3 Ownership, Copies of Documents, and Record Documents
All Specifications, Plans, and copies thereof furnished by the Owner shall remain the property of
the Owner. They shall not be used on another project.
The Contractor will keep one record copy of all Specifications, Plans, Field Changes, Shop
Drawings, and any addenda thereto at the site in good order and annotated to show all changes
made during the construction process. These shall be available to the Owner and shall be delivered
to the Owner upon completion of the Project.
2.4 Cooperation between Contractors
When separate contracts are let within the limits of anyone project, each Contractor shall conduct
the work so as not to interfere with or hinder the progress or completion of the work being
performed by other contractors. The Contractor will afford the other contractors who are parties to
such direct contracts (or the Owner, if Owner is performing the additional work itself), reasonable
opportunity for the introduction and storage of materials and equipment and the execution of work,
and shall properly connect and coordinate its Work with theirs. If any part of the Contractor's Work
depends upon the work of any such other contractor or the Owner for proper execution or results,
the Contractor will inspect such work and promptly report any defects or deficiencies in writing to
the Owner. Failure to make such a report shall constitute an acceptance of the other work as fit and
proper for the Work, except as to defects and deficiencies which may appear in the other work after
the execution of Contractor's Work.
The Contractor will do all cutting, fitting, and patching of its Work that may be required to make
its several parts come together properly and fit it to receive or be received by such other work. The
Contractor will not endanger any work of others by cutting, excavating, or otherwise altering their
work and will only cut or alter their -work of others with the written consent of the Owner.
Contractor shall defend and hold harmless Owner and Owner's officers, council
members, agents and employees from and against any and all claims, costs, suits,
damages and liabilities that may arise out of the performance of the Agreement with
Owner, and shall release Owner from liability for and waive any claim for direct or
consequential damages arising from, delay, work interference, or inconvenience
experienced by the Contractor relating to the presence, conduct or operations of any
other contractors or subcontractors on the Project.
If the performance of additional work by other contractors or the Owner is not noted in the Contract
Documents prior to the Award of the Agreement, written notice thereof shall be given to the
Contractor prior to starting any such additional work. If the Contractor believes that the
performance of such additional work by the Owner or others causes Contractor to incur additional
expense or entitles Contractor to an extension of the Contract Time, Contractor may make a claim
therefore as provided for herein.
2.5 Acceptance of Work by Others
Each subcontractor shall examine work installed by others that would affect the final appearance
of the subcontractor's installation and notify the Architect and General Contractor in writing of any
defects which would impair finished appearance of the Work. Application of materials by
subcontractor will constitute acceptance of work by others.
2.6 Subcontracts
The Contractor will not employ any Subcontractor (whether initially or as a substitute) against
whom the Owner may have objection, nor will the Contractor be required to employ any
Subcontractor against whom Contractor has objection. However, if the Contractor reviews,
evaluates and recommends the use of particular subcontractor or its bid or proposal and the Owner
requires that another subcontractor's bid or proposal be accepted, Owner shall compensate the
Contractor by a change in price, time or guaranteed maximum price for any additional cost or risk
the Contractor will incur because of Owner's requirement to utilize another subcontractor and its
bid or proposal rather than the one recommended.
The Contractor will be fully responsible for all acts and omissions of its Subcontractors and of
persons directly or indirectly employed by Contractor's subcontractors and of persons for whose
acts any of them may be liable, to the same extent that Contractor is responsible for the acts and
omissions of persons directly employed by it. Nothing in the Contract Documents shall create
contractual relationship between any Subcontractor and the Owner, or any obligation on the part of
the Owner to pay or be responsible for payment of any moneys due any Subcontractor, except as
may otherwise be required by law. The Owner may furnish to any Subcontractor, to the extent
practicable, evidence of amounts paid to the Contractor on account of specific work done.
2.7 (Intentionally left blank)
2.8 Permits, Laws, Taxes, and Regulations
The Contractor will secure and pay for all necessary construction permits and licenses and will pay
all governmental and public utility charges and inspection fees necessary for the prosecution of the
Work. The Contractor will give all notices and comply with all laws, ordinances, rules, and
regulations applicable to the Work. If the Contractor observes that the Specifications or Plans are
at variance therewith, Contractor will give prompt written notice thereof to the Owner and any
necessary changes shall be accomplished by an appropriate Field Change. If the Contractor
performs any Work when Contractor knows or reasonably should know such work to be contrary
to applicable laws, ordinances, rules, or regulations, and without such notice to the Owner,
Contractor shall bear all costs, including penalties, relating to compliance of the work.
The Contractor will pay all sales, consumer, and other similar taxes imposed by law of the place
where the Work is to be performed, or of the place from which any portion of the Equipment or
Materials is obtained.
2.9 Availability of Lands
The Owner will provide not later than the date when required by the Contractor, the lands indicated
in the Contract Documents upon which the Work is to be done, rights -of -way for access thereto,
and such other lands which are designated for the use of the Contractor. Easements required for
permanent structures or permanent changes in existing facilities will be secured and paid for by the
Owner, unless otherwise specified in the Contract Documents. If the Contractor believes that any
delay in the Owner's furnishing these lands or providing such easements entitles it to an extension
of the Contract Time, Contractor may make a claim therefore as provided herein. The Contractor
will provide all additional lands and access thereto that may be required for temporary construction
facilities or storage of Materials and Equipment.
2.10 Use of Premises
The Contractor will confine its equipment, the storage of materials and equipment, and the
operations of its workers to areas permitted by law, ordinances, permits, or the requirements of the
Contract Documents, and shall not unnecessarily encumber the premises with materials or
equipment.
2.11 Owner's Status During Construction
All instructions of the Owner, or its duly appointed representative, to the Contractor shall be issued
directly to the Contractor.
The Owner will make periodic visits to the site to observe the progress and quality of the executed
Work and to determine, in general, if the Work is proceeding in accordance with the Contract
Documents. The efforts of the Owner will be directed toward providing assurance that the
completed Project will conform to the requirements of the Contract Documents, but Owner will not
be responsible for the Contractor's failure to perform the Work in accordance with the Contract
Documents. Based on on -site observations, the Owner, or its duly appointed representative, will
keep informed of the progress of the Work and will endeavor to guard it against defect and
deficiencies.
The Owner will have authority to disapprove of or reject Work which is unsatisfactory, faulty, or
defective, or does not conform to the requirements of the Contract Documents or does not meet the
requirements of any inspection, test, or approval set forth herein. The Owner will also have
authority to require special inspection or testing of the Work as provided herein, whether or not the
Work is fabricated, installed, or completed. If such special inspection or testing reveals that the
work already performed by Contractor was in accord with the contract documents the costs of such
inspection and testing, if any, shall be paid by owner via a change order.
Neither the Owner's authority to act under this subsection, nor any decision made by it in good
faith, either to exercise or not exercise such authority, shall give rise to any duty or responsibility
of the Owner to the Contractor, any Subcontractor, any of their agents or employees, or any other
person performing any of the Work.
2.12 Owner's Interpretations Decisions
The Owner will issue with reasonable promptness such clarifications or interpretations (in the form
of drawings or otherwise) as may be determined necessary for the proper execution of the Work,
such clarifications and interpretations to be consistent with or reasonably inferable from the overall
intent of the Contract Documents. If the Contractor believes that a written clarification and
interpretation entitles it to an increase in the Contract Price, it may make a claim therefore as
provided herein.
2.13 Shop Drawings and Samples
After checking and verifying all field measurements, the Contractor will submit five (5) copies of
all Shop Drawings to the Architect. The Shop Drawings shall have been checked and stamped with
the approval of the Contractor and otherwise identified as required by the Architect. The data shown
on the Shop Drawings will be complete with respect to dimensions, design criteria, materials of
construction, and the like. The Contractor will also submit to the Architect for the Architect's file,
all samples required by the Contract Documents. All samples will have been checked and stamped
with the approval of the Contractor, identified clearly as to material, manufacturer, any pertinent
catalog numbers, and the use for which it is intended.
At the time of each submission, the Contractor will provide written notification to the Architect
concerning any deviations that the Shop Drawing or sample may have from the requirements of the
Contract Documents. The Architect will review the Shop Drawings and samples, but this review
shall be only for conformance with the design concept of the Project and for compliance with the
information given in the Contract Documents.
No Work requiring a Shop Drawing or sample submission shall be initiated until the submission
has been delivered to the Architect. The review of Shop Drawings or samples by the Architect shall
not relieve the Contractor from its responsibility for any deviations at the time of submission unless
the Architect has given written approval to the specific deviation, nor shall any review or approval
by the Architect, relieve the Contractor from responsibility for errors or omissions in the Shop
Drawings.
2.14 Contractor's Supervision and Superintendence
The Contractor will supervise and direct the Work efficiently and with its best skill and attention.
The Contractor will be solely responsible for the means, methods, techniques, safety, sequences,
and procedures of construction. Before undertaking the Work, Contractor will carefully study and
compare the Contract Documents and check and verify all figures shown thereon and all field
measurements. The Contractor will immediately file a written report to the Owner concerning any
conflict, error, or discrepancy which it may discover. The Contractor will be responsible for seeing
that the finished Work complies accurately with the Contract Documents. The Contractor shall give
constant attention to the Work to facilitate in every way possible the progress thereof, and
Contractor shall cooperate with the Owner and Owner's authorized representatives, including, but
not limited to, Engineers, Resident Project Representatives, Inspectors, and other Contractors,
although Contractor may subcontract such responsibility to its subcontractors.
The Contractor shall have a competent superintendent on the Work at all times who is fully
authorized as the Contractor's agent on the Work. All communications given to the superintendent
shall be as binding as if given to the Contractor. The Contractor, or its superintendent, shall be
capable of reading and thoroughly understanding the Plans and Specifications and shall receive and
fulfill instructions from the Owner or its authorized representative.
Knowledge of the Work, familiarity with all pertinent codes and ability to clearly communicate
with subcontractor at all times are required of Contractor on this project.
The Contractor will provide competent, suitably qualified personnel to plan and lay out the Work,
and perform the Work and construction as required by the Contract Documents. Contractor will at
all times maintain good discipline and order among his employees at the site.
2.15 Safety and Protection
The Contractor will be responsible for initiating, maintaining, and supervising all safety precautions
and programs in connection with the Work; Contractor will take all necessary safety precautions
and will provide the necessary protection to prevent damage, injury, or loss to:
(a) all employees on the Work and other persons who may be affected thereby,
(b) all Work and all Materials or Equipment to be incorporated into the Work, whether in
storage on or off the site, and
(c) other property at the site or adjacent thereto, including but not limited to shrubs, lawns,
walks, pavements, roadways, structures, and utilities not designated for removal, relocation,
or replacement in the course of construction.
The Contractor will erect and maintain all necessary safeguards as required by the conditions and
progress of the Work, including posting danger signs and other warnings against hazards and
promulgating safety regulations. The Contractor will notify Owners of adjacent utilities, in writing,
when prosecution of the Work may affect them. When the use or storage of explosives or other
hazardous materials is necessary for the prosecution of the Work, the Contractor will exercise the
utmost care and will carry on such activities under the supervision of properly qualified personnel
and in compliance with all applicable law. All damage, injury, or loss to any person or property
caused, directly or indirectly, in whole or in part, by the Contractor, any subcontractor, or anyone
directly or indirectly employed by any of them or anyone for whose acts any of them may be liable,
will be remedied or paid for as applicable by the Contractor. The Contractor shall at all times
comply with the requirements of the Occupational Safety Standards and any other applicable
standards that may be set forth by federal, state, municipal, or any other governmental or regulatory
agency.
The Contractor will designate a responsible member of its organization at the site whose duty shall
be the prevention of accidents. This person shall be the Contractor's superintendent unless
otherwise designated in writing by the Contractor to the Owner.
In emergencies affecting the safety of persons or the Work or property at the site or adjacent thereto,
the Contractor, without special instruction or authorization from the Owner, is obligated to act, at
its discretion, to prevent threatened damage, injury, or loss. The Contractor will give the Owner
prompt written notice of any significant changes in the Work or deviations involved. If the
Contractor believes additional emergency work by it, which arose from causes beyond its control,
entitles it to an increase in the Contract Price or an extension of the Contract Time it may make a
claim therefore as provided herein.
2.16 Access to the Work and Uncovering Finished Work
The Owner and his representatives will at all times have access to the Work. The Contractor will
facilitate such access and observation of the Work as well as any inspection or testing thereof by
others.
If any Work is covered contrary to the request of the Owner, it must be uncovered for observation
and replaced at the Contractor's expense, if requested by the Owner.
If any Work has been covered which the Owner has not specifically requested to observe prior to
its being covered, or if the Owner considers it necessary or advisable that covered Work be
inspected or tested by others, the Contractor, at the Owner's request, will uncover, expose, or
otherwise make available for observation, inspection or testing that portion of the Work in question.
The Contractor will furnish all necessary labor, material, and equipment to comply.
If it is found that such Work is defective or does not meet the requirements of the Contract
Documents, the Contractor will bear all the expenses of such uncovering, exposure, observation,
inspection, testing, and professional services. If, however, such Work is found not to be defective
and meets the requirements of the Contract Documents, the Contractor may request and may be
granted an increase in the Contract Price and/or extension of the Contract Time as compensation,
but only for the amount or time directly attributable to such uncovering, exposure, observation,
inspection, testing, and reconstruction.
2.17 Changes in the Work
Without invalidating the Agreement, the Owner may, at any time or from time to time, order
additions, deletions, or revisions in the Work as may be necessary or desirable to complete the work
originally intended in a manner acceptable to the Owner. The alterations that are for work within
the general scope of the Contract Documents shall be authorized by Change Orders issued by the
Owner. Upon receipt of a Change Order, the Contractor will proceed with the Work involved. All
such Work shall be executed under the applicable conditions of the Contract Documents and as
directed by the Owner. If any Change Order causes an increase or decrease in the Contract Price or
an extension or shortening of the Contract Time, an equitable adjustment will be made pursuant to
the construction contract.
The Contractor shall include all documentation necessary to complete a Change Order or change
order request including but not limited to cost invoices for materials and labor, and subcontractor
invoices. Contractor's overhead and profit as set forth in the contract shall be calculated and
included in the Change Order.
For contracts based on Guarantee Maximum Price (GMP), the Construction Manager at Risk or
Design Builder shall NOT be entitled to a percentage mark-up on any change order Work unless
the change order increases the Guaranteed Maximum Price.
The Owner may authorize minor changes or alterations in the Work not involving extra cost or
delay and not inconsistent with the overall intent of the Contract Documents. These may be
accomplished by a Field Order. If the Contractor believes that any minor change or alteration
authorized by the Owner entitles it to an increase in the Contract Price, it may make a claim.
Additional work performed by the Contractor without authorization of a Change Order will not
entitle Contractor to an increase in the Contract Price or an extension of the Contract Time, except
in the case of an emergency as provided herein.
The Owner will execute any appropriate Change Order covering changes in the Work the Owner
determines to be reasonably necessary.
Upon execution of a Change Order by Owner, Contractor and Architect/Engineer, all costs and
time issues claimed by Contractor regarding that change are final and not subject to increase.
2.18 Changes of Contract Price
The Contract Price constitutes the total compensation payable to the Contractor for performing the
Work. All duties, responsibilities, and obligations assigned to or undertaken by the Contractor shall
be at its expense without change in the Contract Price.
A change of Contract Price may only be authorized by a Change Order. If the Contractor is entitled
by the Contract Documents to make a claim for an increase in the Contract Price, the claim shall
be made in writing and delivered to the Owner within fifteen (15) days of the occurrence of the
event -giving rise to the claim. The value of any Work covered by a Change Order or of any claim
for an increase or decrease in the Contract Price shall be determined in one of the following ways
as determined by the Owner:
(a) Where the Work involved is covered by unit prices contained in the Contract Documents,
by application of unit prices to the quantities of items involved. Pending agreement on change
order, undisputed amounts shall be paid to contractor;
(b) By mutual acceptance of a lump sum; or,
(c) By cost and a mutually acceptable fixed amount for overhead and profit.
If required by the Owner, the Contractor shall submit an itemized cost breakdown together with
supporting data.
The amount of credit to be allowed by the Contractor to the Owner for any such change which
results in a net decrease in cost will be the amount of the actual net decrease as accepted by the
Owner. When both additions and credits are involved in anyone change, the approved overhead
and profit shall be figured based on the net increase, if any.
City Manager may approve Change Orders for less than $25,000.00. City Council must approve all
change orders for $50,000.00, or more. Required approvals must be secured prior to the
commencement of any work associated with Change Orders. At no time may the initial contract
price approved by City Council be increased by Change Orders totaling more than 25% of the initial
contract price.
2.19 Extra Work
Should acceptable completion of the Work require the Contractor to perform an item of work for
which no basis of payment has been provided in the original Contract Documents or previously
issued Change Orders or supplemental agreements, then same shall be called "Extra Work". Extra
Work that is within the general scope of the Contract shall be covered by written Change Order.
Change Orders for such Extra work shall contain agreed unit prices for performing the Change
Order work in accordance with the requirements specified in the Change Order, and shall contain
any adjustment to the
Contract Time that, in the Owner's opinion, is necessary for completion of such Extra Work.
Extra Work that is necessary for acceptable completion of the Project, but is not within the general
scope of the Work covered by the original Contract Documents shall be covered by a "Supplemental
Agreement". Any claim for payment of Extra Work that is not covered by written agreement
(Change Order or Supplemental Agreement) shall be rejected by the Owner. Pending an agreement
on the Change Order for Extra Work and subject to applicable provisions for retainage, undisputed
quantities of work shall be paid to the contractor
2.20 Unauthorized Work
WORK DONE CONTRARY TO THE INSTRUCTIONS OF THE OWNER, WORK DONE
BEYOND THE LINES SHOWN OR AS GIVEN IN THE CONTRACT DOCUMENTS, OR ANY
EXTRA WORK DONE WITHOUT CHANGE ORDER WILL BE CONSIDERED AS
UNAUTHORIZED AND WILL NOT BE PAID FOR UNDER THE PROVISIONS OF THE
AGREEMENT. WORK SO DONE MAY BE ORDERED REMOVED OR REPLACED AT THE
CONTRACTOR'S EXPENSE.
2.21 Neglected Work
If the Contractor should neglect to prosecute the Work in accordance with the Contract Documents
and progress schedule, the Owner, after seven (7) days written notice to the Contractor, may make
good such deficiencies, and the cost thereof including compensation for additional professional
services shall be charged against the Contractor. A Change Order shall be issued incorporating the
necessary revisions in the Contract Documents and including an appropriate reduction in the
Contract Price. If the payments then or thereafter due the Contractor are not sufficient to cover such
amount, the Contractor will pay the difference to the Owner within ten (10) days of written demand
setting forth the amount due accompanied with supporting documentation.
2.22 Conformity with Contract Documents
All Work, Materials, and Equipment furnished shall be in reasonably close conformity with the
lines, grades, grading sections, cross sections, dimensions, material requirements, and testing
requirements that are specified (including specified tolerances) in the Contract Documents.
If the Owner, after consultation with and agreement by, the Architect, finds the Materials or
Equipment furnished, Work performed, or the finished product are not within reasonably close
conformity with the Contract Documents but that the portion of the Work affected will result in a
finished product having an acceptable level of safety, economy, durability, and workmanship, the
affected Work will be accepted and remain in place. The Owner and Architect will determine,
subject to Contractor's right to dispute, the basis of acceptance and will provide for an adjustment
in the Contract Price for the affected portion of the Work to the extent there is a diminution in
value. Changes in the Contract Price shall be covered by a Change Order or Supplemental
Agreement as applicable.
If the Architect finds the Materials and Equipment furnished, Work performed, or the finished
product are not in reasonably close conformity with the Contract Documents and have resulted in
an unacceptable finished product, the affected Work, Materials or Equipment shall be removed and
replaced or otherwise corrected by and at the expense of the Contractor in accordance with the
Owner's written orders.
2.23 Change of Contract Time
The Contract Time may only be changed by a Change Order. If the Contractor is entitled by the
Contract Documents to make a claim for an extension in the Contract Time, the claim shall be in
writing delivered to the Owner within fifteen (15) days of the occurrence of the event -giving rise
to the claim. All claims for adjustment in the Contract Time shall be as determined or approved by
the Owner. Any change in the Contract Time resulting from any such claim shall be incorporated
into a Change Order.
The Contract Time will be extended in an amount equal to time lost due to delays beyond the
control of the Contractor. Such delays shall include, but not be restricted to, acts or neglect by any
separate Contractor employed by the Owner, fires, floods, labor disputes, epidemics, abnormal
weather conditions, or acts of God, unanticipated subsurface conditions, inability to secure permits,
or unsafe materials.
Time limits stated in the Contract Documents are the essence of the Agreement. The provisions of
this Section shall not exclude recovery by Owner for delay.
2.24 Warranty and Guarantee Regarding Work
The Contractor warrants and guarantees to the Owner that all Materials or Equipment will be new
unless otherwise specified, free from faults or defects, and that all Work will be performed in a
workmanlike manner, and in accordance with the specifications and requirements of the Contract
Documents as well as of any required or applicable regulations, codes, inspections, test, or required
approvals. All unsatisfactory, faulty or un-workman like Work and all Work not conforming to the
requirements of the Contract Documents or of such inspections, tests, or approvals shall be
considered defective. Prompt notice of all defective Work shall be given to the Contractor. All
defective Work, whether or not in place, maybe rejected.
If required by the Owner prior to approval of final payment as set forth in paragraph 4.8, the
Contractor will promptly, without cost to the Owner, either correct any defective Work, whether or
not fabricated, installed, or completed, or remove it from the site and replace it with non -defective
Work. The Contractor will also bear the expenses of making good all work of others destroyed or
damaged by its correction, removal, or replacement of Contractor's defective Work. If the
Contractor does not diligently proceed to correct such defective Work or remove and replace such
rejected Work within a reasonable time, as required by written notice from the Owner, the Owner
may have the deficiency corrected or the rejected Work removed and replaced. All direct or indirect
costs of such correction or removal and replacement, including compensation for additional
professional services shall be charged to the Contractor, and an appropriate Change Order shall be
issued deducting all such costs from the Contract Price.
Prior to the expiration of one (1) year after the date of Final Completion (or such longer period of
time as may be prescribed by law or by the terms of any applicable special guarantee or warranty
required by the Contract Documents), if any Work is found to be defective, the Contractor will, as
set forth in the provision and in paragraph 4.9, promptly without cost to the Owner and in
accordance with the Owner's written instruction, either correct such defective Work, or, if it has
been rejected by the Owner, remove it from the site and replace it with non -defective Work. Any
such corrected or replaced defective work shall be warranted by the Contractor for one year from
and after such correction or replacement of work.
If the Contractor does not promptly comply with the terms of such instructions, the Owner may
have the defective Work corrected or the rejected Work removed and replaced, and all direct and
indirect costs of such removal and replacement, including compensation for additional professional
services, will be paid by the Contractor. In such case, a Change Order shall be issued incorporating
the necessary revisions in the Contract Documents, including appropriate reduction in the Contract
Price. Should the remaining contract balance be insufficient to complete the works, Owner will
seek reimbursement from the Contractor and/or its surety for the damages in excess of the
remaining contract balance. If the acceptance occurs after approval of final payment, an appropriate
amount shall be paid by the Contractor within thirty (30) days of written demand for payment
accompanied by supporting documentation.
2.25 Waivers of Claims and Continuing Obligations
The Contractor's obligation to perform the Work and complete the Project in accordance with the
Contract Documents shall be absolute. Neither approval of any progress or final payment by the
Owner, nor the issuance of a certificate of Substantial Completion, nor any payment by the Owner
to the Contractor under the Contract Documents, nor any use or occupancy of the Project or any
part thereof by the Owner, nor any act of acceptance by the Owner nor any failure to do so, nor any
correction of faulty or defective Work by the Owner shall constitute an acceptance of Work not in
accordance with the Contract Documents.
The Acceptance of Final Payment by the Contractor shall constitute a waiver of all claims by the
Contractor against the Owner other than those previously made in writing and unresolved at the
time final payment is accepted.
2.26 Owner's Right to Stop or Suspend Work
The Owner may order the Contractor to stop the Work, or any portion thereof, if the Contractor
performs un-workmanlike or defective Work, fails to supply sufficient skilled workmen or suitable
Materials or Equipment, fails to provide adequate supervision, fails to make prompt payment to
Subcontractors, fails to make prompt payment for labor, Materials or Equipment, or fails for any
other similar cause jeopardizing the integrity of the Work. The Owner may suspend the Work
without liability to the Contractor or subcontractors until the cause for the stop work order has been
eliminated. No additional Contract Time and no increase in Contract Price will be awarded in such
cases.
The Owner may, at any time and without fault of the Contractor, suspend the Work or any portion
thereof for a period of not more than ninety (90) days by notice in writing to the Contractor and the
Owner shall fix the date on which Work shall be resumed. The Contractor will resume the Work
on the date so fixed. The Contractor will be allowed an increase in the Contract Price or an
extension of the Contract Time directly attributable to suspension without cause.
2.27 Owner's Right to Terminate
Owner may, by written notice, terminate this contract in whole or in part at any time, either for the
Owner's convenience or because of failure to fulfill the contract obligations. Upon receipt of such
notice, services shall be immediately discontinued (unless the notice directs otherwise) and all
materials as may have been accumulated in performing this contract shall be delivered to the
Owner.
(a) If the termination is for the convenience of the Owner, an equitable adjustment in the
contract price shall be made.
(b) If the termination is due to Contractor's failure to fulfill the Contractor's obligations
under the contract documents, the Owner may take over the Work and prosecute the same to
completion by contract with third parties or otherwise. In such case, the Contractor shall be
liable to the Owner for any additional cost occasioned to the Owner thereby and an equitable
adjustment shall be made in the Contract Price.
(c) The rights and remedies of the Owner provided in this clause are in addition to any other
rights and remedies provided by law or under this contract.
2.28 Contractor's Right to Stop Work or Terminate
If, through no act or fault of the Contractor, the Work is suspended for a period of more than ninety
(90) days; or, after written notice and opportunity to cure within thirty (30) days, the Owner,
without disputing the claim, fails to act as directed in the Contract Documents or fails to pay the
Contractor any authorized amount, then the Contractor may, upon seven (7) days written notice to
the Owner: (a) terminate the Agreement and recover from the Owner payment for all Work
executed, reasonable expenses and agreed profit margin, if any; or; (b) stop the Work until
Contractor has been paid all amounts then past due under the Agreement.
2.29 Contractor's Management Personnel
Contractor shall employ a competent person or persons who will be present at the Project Site
during the progress of the Work to supervise or oversee the Work. Contractor shall advise Owner,
in writing, of the names and contact information for Contractor's superintendents or management
personnel for the Work. The competent persons are subject to the approval of Owner or Owner's
designee (ArchitectiEngineer). Contractor shall not change approved staff during the course of the
Project without the written approval of Owner unless the staff member leaves the employment of
Contractor. Contractor shall provide additional quality control, safety and other staff as stated in
the Contract Documents.
2.30 Abandonment by Contractor
In case the Contractor should abandon the Work and fail or refuse to resume the Work within
twenty (20) days after written notification from the Owner or if the Contractor refuses or fails to
comply with the orders of the Owner, when such orders are consistent with the Contract
Documents, then, where performance and payment bonds exist, the Surety on the Bonds shall be
notified in writing and directed to complete the Work, and a copy of said notice shall be delivered
to the Contractor.
After receiving notice of abandonment, the Contractor shall not remove from the Work any
machinery, Equipment, tools, Materials, or supplies then on the job, but the same, together with
any Materials and Equipment under contract for the Work, may be held for use on the Work by the
Owner or the Surety on the performance and payment bonds, or another Contractor in completion
of the Work, and the Contractor shall not receive any rental or credit therefore (except when used
in connection with Extra Work, where credit shall be allowed as provided in this Agreement), it
being understood that the use of such Equipment and Materials will ultimately reduce the cost to
complete the Work and be reflected in the final settlement. Where there is no performance and
payment bond provided or in case the Surety should fail to commence compliance with the notice
for completion provided for, within ten (10) days after service of such notice, the Owner may
provide for completion of the Work in either of the following elective manners:
(a) The Owner may employ such labor and use such Equipment, tools, Materials, and
supplies as the Owner deems necessary to complete the Work and charge the expense of such
labor, machinery, Equipment, tools, Materials and supplies to the Contractor. The expense(s)
so charged shall be deducted and paid by the Owner out of such moneys as may be due, or
that may thereafter become due by virtue of this Agreement. In case such expense is less than
the sum which would have been due had the Work been completed by the Contractor, then
said Contractor shall receive the difference. In case such expense is greater than the sum
which would have been payable under this Agreement, then the Contractor or its Surety shall
pay the amount of such excess to the Owner;
Or,
(b) The Owner may contract with a third party or third parties for the completion of the Work
under substantially the same terms and conditions provided for in this Agreement. In case of
any increase in cost to the Owner under the new agreement, such increase shall be charged to
the Contractor and the Surety. However, should the cost to complete the Work be less, the
Contractor and its Surety shall be credited with the difference. When the Work shall have
been Substantially Completed a complete itemized statement of the contract amounts certified
to by the Owner, shall be prepared, and delivered to the Contractor and its Surety, whereupon
the Contractor or its Surety shall pay the balance due if any within fifteen (15) days of the
date of such Certificate of Completion.
In the event the statement of accounts shows that the cost to complete the Work is less than the
Contract Price; or when the Contractor or its Surety shall pay the balance shown to be due by them
to the Owner, then all machinery, Equipment, tools, Materials or supplies left on the site of the
Work shall be turned over to the Contractor or its Surety. Should the cost to complete the Work
exceed the Contract Price, and the Contractor or its Surety fail to pay the amount due the Owner
within the time designated hereinabove, and there remains any machinery, equipment, tools,
materials, or supplies on the site of the Work, notice, together with an itemized list of such
equipment and materials, shall be mailed to the Contractor and its Surety. Such property shall be
held at the risk of the Contractor and its Surety. After fifteen (15) days from the date of said notice,
the Owner may sell such machinery, equipment, tools, materials, or supplies and apply the net sum
derived from such sale to the credit of the Contractor and its Surety. Such sale may be made at
either public or private sale, with or without notice, as the Owner may elect. The Owner shall
release any machinery, equipment, tools, materials, or supplies, which remain on the Work and
belong to persons other than the Contractor or its Surety, to their proper Owners.
3. INSURANCE REQUIREMENTS
3.1 Maintenance of Insurance
During all phases of the Project, the Contractor shall purchase and maintain insurance as set forth
herein. Such insurance shall be written for not less than the following limits as set forth below:
3.1.1 Certificates of Insurance
The Contractor must provide the Owner with certificates of insurance prior to beginning
work on the Project. Each certificate of insurance must include the Project name. The
certificates are to be approved by Owner before work commences. The certificates of
coverage must be signed by a person authorized by the insurer to bind coverage on its
behalf. The certificates must contain enough detail to allow the Owner to confirm that the
following requirements have been fulfilled by the Owner's insurance coverage. Owner
reserves the right to require complete, certified copies of insurance policies at any time.
Contractor shall name the Owner and Architect or Engineer as additional insureds on the
Commercial General Liability, Commercial Automobile Liability, and Commercial
Umbrella Liability policies and such insurance shall be primary to any other insurance.
Approval of the certificates or policies by the Owner does not relieve the Contractor of its
duty of indemnification.
If the coverage period shown on the current certificate of coverage ends during the duration
of the Project, the Contractor shall, prior to the end of the coverage period, provide a new
certificate of coverage showing extension of the coverage.
3.1.2 Required Limits of Insurance
The required limits of insurance coverage may be satisfied by any combination of primary,
excess, or umbrella liability insurance coverage, provided the primary policy complies with
the requirements detailed in the contract Agreement and the excess/umbrella policies are
written on a "following form" basis. The Contractor may maintain reasonable deductibles,
subject to approval by the Owner. The required limits of insurance do not establish a limit
on the Contractor's liability.
3.1.3 Required Policy Terms
Each required insurance policy shall:
3.1.3.1 Waive all rights of subrogation against the Owner for losses arising from
Work performed by the Contractor for the Owner;
3.1.3.2 Require the insured to immediately notify the Owner of any material
change in the insurance coverage;
3.1.3.3 Provide the Owner with 30 day notice of cancellation, non- renewal, or
termination of insurance by return receipt mail (10 days as respects non-payment
of premium);
3.1.3.4 Be written by an insurer that is licensed to do business in Texas, classified
by the Texas Department of Insurance as an "admitted" insurer, and maintains
and A.M. Best rating of ANII or better throughout the Project until the Owner
has accepted the work;
3.1.3.5 Be written on forms that have been filed and approved by the Texas
Department of Insurance;
3.1.3.6 Be primary insurance as respects Owner, its officers, elected officials,
employees, agents and representatives. Any insurance maintained by Owner will
be in excess of Contractor's insurance and will not contribute to it;
3.1.3.7 Apply separate to each insured against whom a claim is made or suit
brought, except with respect to the limits of the insurer's liability;
3.1.3.8 Be maintained from the time Work commences until services are
completed and accepted by Owner; and,
3.1.3.9 Must not contain any special limitations on the scope of coverage
provided to the Owner, its officers, elected officials, employees, agents and
representatives.
3.1.4 Subcontractors and Trade Contractors as Insureds
The Contractor shall include all contractors, subcontractors and trade contractors as
insureds under its policies or furnish Owner separate certificates for each contractor,
subcontractor and trade contractor. All coverage required of contractors, subcontractors
and trade contractors shall be subject to all of the insurance requirements detailed above
except each contractor, subcontractor and trade contractor's general aggregate limit on
Commercial General Liability shall be not less than $1,000,000.00. The requirements of
the Commercial Umbrella coverage do not apply to the contractors, subcontractors and
trade contractors.
3.1.5 State Mandated Workers' Compensation Insurance Requirements
The Contractor shall provide coverage, based on proper reporting of classification codes
and payroll amounts and filing of any coverage agreements, meeting the statutory
requirements of Texas Workers' Compensation Act, Title 5 Subchapter A of the Texas
Labor Code (Texas Labor Code Chapter 406) for all employees of the Contractor providing
services on the Project, for the duration of the Project.
3.1.5.1 Definitions (applicable to Part3.1.5)
a. Certificate of Coverage ("certificate") - A copy of a certificate of
insurance or a certificate of authority to self -insure issued by the Texas
Department of Insurance Division of Workers' Compensation (Workers'
Compensation) showing statutory workers' compensation insurance
coverage for the persons or entities' employees, executives, officers,
partners and proprietors providing services on the Project, for the duration
of the Project.
b. Duration of the Project - Includes the time from the beginning of the
Work on the Project until the Contractor's work on the Project has been
completed and accepted by Owner.
c. Persons providing services on the Project ("subcontractor" in Section
406.096 of the Texas Labor Code). Includes all persons or entities
performing all or part of the services the Contractor had undertaken to
perform on the subject, regardless of whether the person contracted
directly with the Contractor and regardless that person has employees.
This includes, without limitation, independent contractors, subcontractors,
sub -contractors, motor carriers, Owner -operators, employees, executives,
officers, partners and proprietors of any such entity, trade contractors, or
employees of any entity which furnishes persons to provide services on
the Project.
d Services - Include, without limitation, providing, hauling, or
delivering equipment or materials, or providing labor, transportation, or
other service related to the Project.
3.1.5.2 The Contractor shall provide workers' compensation insurance coverage,
based on proper reporting of classification codes and payroll amounts and filing
of any coverage agreements, which meet the statutory requirements of the Texas
Labor Code (401.011 (44)) for all employees of the Contractor providing services
on the Project, for the duration of the Project.
3.1.5.3 The Contractor must provide a certificate of coverage to Owner prior to
execution of this Agreement.
3.1.5.4 If the coverage period shown on the Contractor's current certificate of
coverage ends during the duration of the Project, the Contractor must, prior to the
end of the coverage period, file a new certificate of coverage with Owner
showing that coverage has been extended.
3.1.5.5 The Contractor shall obtain from each person providing services on the
Project, and provide to Owner:
a. A certificate of coverage, prior to that person beginning Work on the
Project, so Owner will have on file certificates of coverage showing
coverage for all persons providing services on the project; and,
b. No later than seven days after receipt by the Contractor, a new
certificate showing extension of the coverage, if the coverage period
shown on the current certificate of coverage ends during the duration of
the Project.
3.1.5.6 The Contractor shall retain all required certificates of coverage for the
duration of the Project and for three years thereafter.
3.1.5.7 The Contractor shall notify Owner in writing by certified mail or
personal delivery, within 10 days after the Contractor knew or should have
known, of any change that materially affects the provision of the coverage of any
person providing services on the Project.
3.1.5.8 The Contractor shall post on the Project site a notice, in the text, form
and manner prescribed by the Workers' Compensation, informing all persons
providing services on the Project that they are required to be covered, and stating
how a person may verify coverage and report lack of coverage.
3.15.9 The Contractor shall contractually require each person with whom it
contracts to provide services on the Project, to:
a. Provide coverage, based on proper reporting of classification codes
and payroll amounts and filing of any coverage agreements, which meet
the statutory requirements of the Texas Labor Code [401.011 (44)] for all
employees of the Contractors, Subcontractors and Trade Contractors
providing services on the Project, for the duration of the Project;
b. Provide to the Contractor, prior to that person beginning work on the
Project, a certificate of coverage showing that coverage is being provided
for all employees of the person providing services on the Project, for the
Duration of the Project.
c. Provide the Contractor, prior to the end of the coverage period, a new
certificate of coverage showing extension of the coverage, if the coverage
period shown on the current certificate of coverage ends during the
Duration of the Project.
d. Obtain from each other person with whom it contracts, and provide to
the Owner:
(i) A certificate of coverage, prior to the other person beginning work
on the project;
(ii) A new certificate of coverage showing extension of the coverage,
if the coverage period shown on the current certificate of coverage
ends during the duration of the Project;
(iii)Retain all required certificates of coverage on file for the duration
of the Project and for three years thereafter;
(iv)Notify Owner in writing by certified mail or personal delivery,
within 10 days after the Contractor knew or should have known, of
any change that materially affects the provision of the coverage of any
person providing services on the Project; and,
(v) Contractually require each person with whom it contracts to
perform as required by clauses (i) - (iv) of this subparagraph, with
certificates of coverage, to be provided to the person for whom they
are providing services.
e. The Contractor's failure to comply with any of the provisions of
Paragraph 8.1.5 is a breach of contract by the Contractor which entitles
Owner to declare this Agreement void if the Contractor does not remedy
the breach within ten (10) days after notice of breach from Owner.
3.1.5.10 In the event that Contractor has workers (Whether employees,
volunteers or contract labor) present on the job site and working in any manner
on the Project who are not covered at all times by the required coverages for
workers' compensation, Contractor shall be deemed in default of the construction
contract and Owner shall be entitled to declare the contract void if Contractor
does not remedy the breach within ten days after receipt of notice of breach from
the Owner. Contractor shall further immediately remove from the work site any
such workers not covered by the required coverages for workers' compensation
from the job site.
3.2 Builders Risk Insurance
The Contractor shall purchase and maintain Builders Risk Insurance with limits that are at
all times sufficient to cover the value of the exposure. The policy should be written to cover
the interests of the Owner, the Contractor, subcontractors, trade contractors, and all
subcontractors. Further, the policy shall:
31.1 Stipulate that the insurer will not seek recovery, through subrogation or otherwise,
against any insured (even if their negligence causes a covered loss), regardless of
the extent of the insured's insurable interest.
3.2.2 Be written on an "all-risk" basis, and shall provide coverage for fire, extended
coverage and physical loss or damage including theft, vandalism, malicious
mischief, collapse, sewer backup, seepage, hydrostatic testing, pneumatic testing,
mechanical testing and normal settling.
3.2.3 Apply to foundations, false work, temporary buildings, and debris removal
including demolition occasioned by enforcement of applicable legal requirements.
3.2.4 Provide coverage for consequential damage ensuing from faulty workmanship,
material, construction, or design (resulting damage only, not cost of making good
the workmanship).
3.2.5 Be maintained until the Owner has accepted the Project as completed or until no
one other than the Owner has an insurable interest in the Project.
3.2.6 Cover portions of property stored off -site (after written approval of the Owner) at
the value established by the Owner and portions of the work in transit.
4. CONTRACT MEASUREMENT AND PAYMENT
4.1 Quantities and Measurements
No extra or customary measurements of any kind will be allowed, but only the actual measured or
computed length, area, solid contents, number, and weight shall be considered, unless otherwise
specifically provided.
4.2 Estimated Quantities
The Contract Documents are intended to show clearly all Work to be done and Material and
Equipment to be furnished hereunder. Where the evaluation quantities are shown for the various
classes of the Work, they are to be used only as a basis for comparing the proposals offered for the
Work. It is understood and agreed that the actual amount of the Work to be done and Material and
Equipment to be furnished under the Project Agreement will not be reflected by these evaluation
quantities. The basis for payment shall be for the actual amount of the Work done and the Material
and Equipment furnished under the terms contained within the Project Agreement. Where payment
is based on the unit price method, the Contractor agrees that it will make no claim for damages, or
anticipated profits on account of any differences which may be found between the quantities of the
Work actually done, the Material and Equipment actually furnished under the Project Agreement
and the evaluation quantities provided.
4.3 Price of Work
In consideration of the furnishing of all the necessary labor, Equipment, and Material, and the
completion of all Work by the Contractor, and on the completion of all Work and of the delivery
of all Material and Equipment embraced in this Agreement in full conformity with the
Specifications and stipulations contained within the Contract Documents, the Owner agrees to pay
the Contractor the Contract Price. The Contractor hereby agrees to receive such prices in full for
furnishing all Material, Equipment and all labor required for the aforesaid Work, also for all
expense incurred by it, and for well and truly performing the same and the whole thereof in the
manner and according to this Agreement and the Contract Documents. The unit prices provided in
the Bid shall be the actual unit price for each item when considering the cost of providing all labor,
material, equipment, resources, and profit to be recovered by the Contractor for such Work and
without consideration of association with any other item of Work.
4.4 Partial Payment Estimates
The Contractor shall subdivide the Work into component parts in sufficient detail to serve as the
basis for progress payments during construction.
4.4.1 Deadline
The Contractor shall prepare a statement showing as completely as practicable the total
value of the Work done by the Contractor. The statement shall be deemed complete and
received once all corrections to the Work required by Owner, if any, have been made. The
Owner's representative shall submit a recommendation for approval upon completion of
all corrections. Failure by the Owner to note corrections prior to payment does not
constitute acceptance of the Work nor waive any remedy provided for in the Contract
Documents or under law.
4.4.2 Payment
The Owner shall pay the total amount of the Contractor's statement to the Contractor as
due under the contract documents, less all previous payments and all further sums that may
be retained, withheld, or delayed by the Owner under the terms of this Agreement.
4.4.3 Warranty of Title
The Contractor warrants and guarantees that clear ownership title to all Work, Materials,
and Equipment covered by a Partial Payment Estimate, whether incorporated in the Project
or not, will have passed to the Owner prior to making the Partial Payment Estimate free
and clear of all liens, claims, security interests, and encumbrances (hereinafter in these
General Conditions referred to as "Liens"); and that no Work, Materials, or Equipment
covered by a Partial Payment Estimate will have been acquired by the Contractor or by
any other person performing the Work at the site or furnishing materials and equipment for
the Project subject to an agreement under which an interest therein or encumbrance thereon
is retained by the seller or otherwise imposed by the Contractor or such other person.
4.4.4 Retainage
Partial payment retainage by the Owner shall be at the maximum rate prescribed by the
laws, rules, or regulations established by the State of Texas and shall in no case exceed five
percent (5%). See this Part 4, "Contract Measurement and Payment", for specific payment
methods.
4.5 Approval of Payments
The Partial Pay Estimate shall be based on on -site observations of the Work in progress, and shall
verify that the Work has progressed to the point indicated; that the quality of the Work is in
accordance with the Contract Documents (subject to an evaluation of the Work as a functioning
Project upon Substantial Completion, to the results of any subsequent test called for in the Contract
Documents and any qualifications stated in the approval); and that the Contractor is entitled to
payment of the amount approved. However, by such payment, the Owner shall not thereby be
deemed to have represented that it has made exhaustive or continuous on -site inspections to check
the quality or the quantity of the Work, or that it has reviewed the means, methods, techniques,
sequences, and procedures of construction or that it has made any examination to ascertain how or
for what purpose the Contractor has used the moneys paid or to be paid to it on account of the
Contract Price.
The Owner may nullify any such payment previously requested to such extent as may be necessary
to provide protection from loss because:
(a) The Work is defective, neglected, or omitted,
(b) Claims relating to the work have been filed or there is reasonable, confirmed evidence
indicating the probable filing thereof,
(c) The Contract Price has been reduced because of Change Orders or Field Changes,
(d) The Owner has been required to correct defective Work or complete neglected Work.
(e) Unsatisfactory prosecution of the Work, including failure to clean up as required herein.
(f) Material installation has not been tested as required by the terms of the Contract
Documents.
4.6 Substantial Completion
Substantial Completion is the stage in the progress of the Work when the Work or designated
portion thereof is sufficiently complete in accordance with the Contract Documents so that the
Owner can occupy or utilize the Work for its intended use.
(a) When the Contractor considers that the Work or a portion thereof which the Owner
agrees to accept separately is substantially complete the Contractor shall prepare and submit
to the Owner's representative (Architect, Engineer or Project Manager, as appropriate) a
comprehensive list (punch list) of items to be completed or corrected prior to final payment.
Failure to include an item on such list does not alter the responsibility of the Contractor to
complete all Work in accordance with the Contract Documents. In addition, the Owner's
representatives will prepare a punch list of items that need to be completed, corrected or
repaired prior to final payment.
1. Contractor shall make certain that the project is substantially complete and ready for
inspection and punch list completion.
2. Contractor shall provide its punch list to the owner's representative prior to
Substantial Completion inspection.
Contractor shall assist the Owner and Owner's Architect, Engineer or other involved
professionals in establishing a date and time agreeable to the parties for such punch
list and inspection. If, during the inspection the Owner, Owner's Architect or other
involved professional should determine that the work is not substantially complete,
the inspection will end, and the Contractor will be given time to Substantially
Complete as determined by the Owner. If the Owner does not consider the Project
substantially complete, the Contractor will be notified in writing of the reasons as
soon as possible thereafter.
4. Should partial acceptance of a specific area of the work be necessary, then this may
be accomplished and the area approved separately from the remainder of the work.
Such acceptance shall be described fully in writing, accepted by all interested parties
and meet all of the requirements of the Contract Documents and Specifications at the
time of acceptance.
5. Upon receipt of the latest punch list or other items called to the attention of the
Contractor, the Contractor shall respond with a date reasonable and acceptable to all
parties to fully complete the work. Any action in this regard will not waive the
Contractor's obligation to complete the project on time as it relates to damages,
whether liquidated or other.
6. Upon Substantial Completion of the work or designated portion thereof and upon
application by the Contractor and certification by the Owner's Architect, if
applicable, the owner shall make payment, reflecting adjustment in retainage, for
such work or portion thereof as provided in the Contract Documents.
(b) When the Work or designated portion thereof is substantially complete the Owner's
representative will prepare a Certificate of Substantial Completion which shall establish the
date of Substantial Completion, shall establish responsibilities of the Owner and Contractor
for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the
time within which the Contractor shall finish all items on the list accompanying the
Certificate. Warranties required by the Contract Documents shall commence on the date of
Substantial Completion of the Work or designated portion thereof unless otherwise provided
in the Certificate of Substantial Completion.
(c) The Certificate of Substantial Completion shall be submitted to the Owner and Contractor
for their written acceptance of responsibilities assigned to them in such Certificate. Upon
such acceptance and consent of surety, if any, the Owner shall make payment of retainage
applying to such Work or designated portion thereof. Such payment shall be adjusted for
Work that is incomplete or not in accordance with the requirements of the Contract
Documents pursuant to this Section 4.6.
4.7 Partial Utilization
Prior to final payment, the Owner shall have the right to take possession of and use any completed
or partially completed portions of the Work, notwithstanding the time for completing the entire
Work of such portions may not have expired, but such taking possession and use shall not be
deemed an acceptance of any Work not completed in accordance with the Contract Documents. If
such prior use increases the cost or delays the Work, the Contractor may request in writing, in
accordance with the process set forth in these General Conditions, an increase in the Contract Price
or extension of the Contract Time, or both as the Owner may determine to be reasonable.
4.8 Final Payment
Upon written notice from the Contractor that the Project is substantially complete, the Owner and
the Contractor will make a final inspection, and the Owner will notify the Contractor in writing of
any particulars in which this inspection reveals that the Work is defective or incomplete. Owner
may utilize a punch list of contract items requiring completion to identify defective or incomplete
work. The Contractor shall immediately make such corrections or complete such work as are
necessary to remedy such defects.
After the Contractor has completed any such corrections to the satisfaction of the Owner and
delivered all maintenance and operating instructions, schedules, guarantees, stock materials bonds,
certificates of inspection and other documents, Contractor may request final payment. The final
estimate shall be accompanied by such supporting data as the labor and services performed and the
material and equipment furnished. In lieu thereof and as approved by the Owner, the Contractor
may furnish receipts or releases in full, including an affidavit of the Contractor showing that
releases and receipts for all labor, services, Material, and Equipment for which a Lien could be
connected with the Work have been paid or otherwise satisfied; and showing consent of the surety,
if any, to final payment. If any Subcontractor or supplier fails to furnish a release or receipt in full,
the Contractor may furnish a bond satisfactory to the Owner in an amount sufficient to cover any
Lien.
Contractor shall prepare and submit all required documents and provide, including but not limited
to:
(a) Project Warranties/Guarantees
(b) Maintenance manuals and data
(c) Required Inspection Reports and Certifications
(d) As -built drawing on a set of blue -line prints (marked in red or otherwise obvious) of all
significant changes in the plans and/or utilities services.
(e) Stock materials for Owner use as directed in the construction documents.
If, on the basis of observation and review of the Work during construction and the final inspection,
the Owner is satisfied that the Work has been completed and the Contractor has fulfilled all of its
obligations under the Contract Documents the Owner will issue written approval and the final
estimate will be processed for payment. Otherwise, the Owner will indicate in writing its reasons
for refusing to issue payment of the final estimate.
If, after Substantial Completion of the Work, final completion thereof is materially delayed through
no fault of the Contractor, the Owner shall make payment of the balance due for that portion of the
Work fully completed and accepted if the remaining balance for Work not fully completed or
corrected is less than the retainage, and, if Bonds have been furnished in accordance with the
Contract Documents, the written consent of the surety to the payment of the balance due shall be
submitted to the Owner. Such payment shall be made under the terms and conditions governing
final payment, except that it shall not constitute a waiver of claims.
4.9 Guarantee
Upon Final Completion of Contractor's work, which includes acceptance of all punch list items,
the Contractor shall famish to the Owner a written statement guaranteeing all materials, equipment,
workmanship, and operation for a period of one (1) year from the date of final completion and
acceptance by the Owner. This does not waive requirements specified elsewhere for guarantees in
excess of one (1) year, or warranties furnished by manufacturers for period in excess of one (1)
year. Failure of manufacturer to guarantee its own product will not relieve the Contractor of
Contractor's obligation under this contract. Subcontractors shall guarantee their work to the
General Contractor and the Owner.
Contractor shall also furnish to the Owner all certificates of Guarantee and Warranty provided by
the manufactures of the equipment and materials.
Whenever, within one (1) year from the date of final completion, the Contractor is notified by the
owner of defects in work, equipment, or materials, the Contractor shall promptly correct such
defects without cost to Owner, either in materials or labor. Repairs, corrections and/or replacement
of work shall be handled in accordance with the provisions of this paragraph and paragraph 2.24.
Any such corrected or replaced defective work shall be warranted by the Contractor for one year
from and after such correction or replacement of work.
4.10 Payments Withheld
The Owner may, because of subsequently discovered evidence, withhold or nullify payment to such
extent as may be deemed reasonably necessary by Owner because of:
(a) Defective Work not remedied.
(b) Claims filed or reasonable, confirmed evidence that the filing of a claim is likely.
(c) Failure of the Contractor to make payments properly to sub -contractors for Material,
Equipment or labor; or failure of Contractor to certify to Owner or Owner's representative
that all such payments are complete.
(d) Damage to or claimed by another Contractor.
(e) Failure to carry out testing of material installation, if required.
When the above grounds are removed, or the Contractor provides a Surety bond satisfactory to the
Owner, which will protect the Owner in the amount withheld, payment shall be made.
5. PROJECT REQUIREMENTS
5.1 Line and Grade
Lines and grades for construction are as directed in the Contract Documents. Any questions,
alterations, or adjustments must be directed through the Owner.
5.2 Working Day
Work on the Project site shall be done only during the Work Day, except for emergencies or as
otherwise approved by the Owner. This Agreement is established with the intent that no Work shall
be permitted on weekends or legal holidays except in cases of extreme emergency and then only
with the written permission of the Owner.
5.3 Character of Employees
The Contractor agrees to employ only orderly and competent employees, skillful in the
performance of the type of Work required under this Agreement, to do the Work; and agrees that
whenever the Owner shall inform the Contractor in writing that any employee or employees are, in
its opinion, incompetent or disorderly, such employee or employees shall be discharged from the
Work and shall not again be employed on the Work without the written consent of the Owner.
5.4 Physical and Subsurface Conditions
The Contractor will promptly notify the Owner in writing of any subsurface or latent physical
conditions at the site differing materially from those indicated in the Contract Documents or any
soils reports or data furnished by the Owner during Preconstruction under 3.1.4.2.3 of the Contract.
The Owner will promptly investigate those conditions and determine if further surveys or
subsurface tests are necessary. Promptly thereafter, the Owner will obtain the necessary additional
surveys and tests and furnish copies to the Contractor. If the results of such surveys or tests indicate
subsurface or latent physical conditions differing significantly from those indicated in the Contract
Documents, a Change Order shall be issued incorporating the necessary revisions and increasing
the GMP and/or extending the Contract Time.
5.5 Reference Points
The Owner will establish such general reference points as will enable the Contractor to proceed
with the Work. The Contractor will be responsible for the layout of the Work, will protect and
preserve the established reference points, and will make no changes or relocations without the prior
written approval of the Owner. The Contractor will report to the Owner whenever any reference
point is lost or destroyed or requires relocation because of necessary changes in grades or locations.
The Contractor will replace and accurately relocate all reference points so lost, destroyed, or
moved. All utilities shown on drawings are schematic only. The Contractor is solely responsible
for verification of existence and location of all utilities within the Project site prior to construction.
6. Materials
6. MATERIALS
6.1 Materials and Equipment
The Contractor shall furnish and pay for all labor, Materials, Equipment, tools, transportation,
construction equipment, fuel, power, light, heat, telephone, water, sanitary facilities, and all other
incidentals required to complete the Work in accordance with the Contract Documents. All
Materials and Equipment used in the construction of the Work shall conform fully to the Contract
Documents and be approved by the Owner. Any Materials or Equipment placed before approval of
the Owner shall be removed, if directed by the Owner, and replaced with approved Materials or
Equipment, at the expense of the Contractor.
If required the Contractor will furnish satisfactory evidence as to the kind and quality of Materials
and Equipment to be used. If authorized by Owner, the Contractor may use a substitute that is equal
to any Material or Equipment specified. No substitute shall be ordered or installed without the
written approval of the Owner.
All Materials and Equipment shall be applied, installed, connected, erected, used, cleaned, and
conditioned in accordance with the instructions of the applicable manufacturer, fabricator, or
processors, except as otherwise specifically provided in the Contract Documents. The Contractor
shall provide start-up services for all major equipment.
6.2 Right of the Owner to Modify Equipment and/or Methods
Construction Manager will agree that if the Owner, in the exercise of its reasonable discretion and
after written notice, determines that the contractor is behind schedule for reasons which do not
warrant a time extension hereunder, Construction manager will, at its expense implement a
recovery plan until such time that the work is back on schedule. At the Owners request the
Contractor shall have the opportunity to initiate a Schedule Recovery Plan to get the project back
on schedule. Such authority of the Owner, however, is for the sole benefit of the Owner in order to
secure completion in conformity with this Agreement. It shall remain the sole duty and
responsibility of the Contractor to take adequate precautions in its operation for the safety of
persons and property. No failure of the Owner to notify the Contractor of deficient or negligent
methods or Equipment shall excuse or relieve the Contractor of sole liability for damage to the
property or improvements of the Owner because of Owner's neglect or omission.
6.3 Owner Furnished Materials
The Contractor shall furnish all Materials required to complete the Work, except those specified
herein (if any) to be furnished by the Owner. Owner -furnished Materials shall be made available
to the Contractor at the location specified in the Contract Documents. All costs of handling,
transportation from the specified location to the site of Work, storage, and installing Owner
furnished Materials shall be included in the unit price bid for the contract item in which such
Owner -furnished Material is used.
After any Owner furnished Material has been delivered to the location specified, the Contractor
shall be responsible for any demurrage, damage, loss, or other deficiencies that may occur during
the Contractor's handling, storage, or use of such Owner -furnished Material. The Owner will deduct
from any monies due or to become due the Contractor any cost incurred by the Owner in making
good such loss due to the Contractor's handling, storage, or use of Owner -furnished Materials.
6.4 Material Storage
Materials shall be so stored as to assure the preservation of their quality and fitness for the Work.
When considered necessary by the Owner, Materials shall be placed on wooden platforms or other
hard, clean, and dry surfaces and not in contact with the ground, and shall be placed under cover.
Stored materials, even though approved before storage, may again be inspected prior to their use in
the Work. Stored materials shall be located to facilitate their prompt inspection. The Contractor
shall coordinate the storage of all materials with the Owner or its Resident Project Representative.
Materials to be stored on the site of the Work shall not create an obstruction to the public, nor shall
they interfere with the free and unobstructed movement of vehicular traffic associated with the site.
The storage of the Materials and the location of the Contractor's plant and parked equipment or
vehicles shall be as directed by the Owner or its representative. Private property shall not be used
for storage purposes without written permission of the Owner. The Contractor shall make all
arrangements and bear all expenses for the storage of Materials on private property.
All storage sites shall be restored to their original condition by the Contractor at its entire expense,
except as otherwise agreed to by the Owner.
6.5 Sources of Supply and Quality of Materials
The source of supply of each of the Materials shall be approved by the Owner before delivery is
started and may be sampled and tested to determine compliance with the specifications before
delivery is started. If it is found that sources of supply previously approved do not produce uniform
and satisfactory products, or if the product from any source proves unacceptable at any time, the
Contractor shall furnish Materials from other approved sources. Only Materials conforming to the
requirements of the Contract Documents and approved by the Owner shall be used in the Work.
No material which after approval has in any way become unfit for use shall be incorporated in the
Work.
Throughout the specifications where reference is made to ASTM (American Society for Testing
and Materials), AASHTO (American Association of State Highway and Transportation Officials),
or bulletins of the Texas Department of Transportation for the quality of Materials or sampling and
testing, the latest standard, tentative standard, or bulletin issued prior to the date of the proposal
shall govern.
6.6 Samples and Tests
All Materials shall be inspected, tested, and approved by the Owner, and any Work in which
Materials are used without prior test and approval without first being excepted from testing and
approval by Owner, may be ordered removed and replaced at the Contractor's expense. The
Contractor shall furnish a complete written statement of the origin, composition, and manufacture
of any or all Materials that are to be used in the Work.
6.7 Defective Materials
All Materials not conforming to the requirements of the Contract Documents will be rejected and
shall be removed immediately from the site of the Work. Rejected Materials in which the defects
have been subsequently corrected, shall have the status of new Material. Upon failure on the part
of the Contractor to comply with the provisions of this item, the Owner will have authority to
remove and replace defective Material and to deduct the cost of removal and replacement from any
payment due or to become due to the Contractor.
7. PROJECT MEETINGS
7.1 Pre -construction Meeting
Prior to the commencement of Work at the site, a pre -construction conference will be held with the
Owner and Architect at a mutually agreed upon time and location. The conference shall be attended
by:
• Contractor and its superintendent
• Principal Subcontractors
• Representatives of principal suppliers and manufacturers as appropriate
• Representatives of Owner
• Others as requested by the Contractor or the Owner
Unless previously submitted to the Owner, the Contractor shall bring to the conference each of the
following:
• A list of all subcontractors, including addresses and contact information.
• Completed Debarment and Suspension forms for all contractors and subcontractors.
• Completed Certification for a Drug -Free Workplace for all contractors and subcontractors
(Form Number: HUD-50070)
• Completed Conflict of Interest Forms for all contractors
• Approved certificates of insurance for all subcontractors
• Material Sources
• Materials Test Results and Certification
• List of Equipment to be utilized
• Description of Procedures and Work Crews
The agenda will include:
• Contractor's tentative schedules
• Critical Work sequencing
• Transmittal, review, and distribution of Contactor's submittals
• Field decisions and Change Orders
• Use of premises, office and storage areas, security, housekeeping, and Owner's needs
• Major equipment deliveries and priorities
• Maintaining record documents
• Processing applications for payment
• Contractor's assignments for safety and first aid
The sequence of operations to be followed shall be prepared by the Contractor for approval by the
Owner. The sequence shall meet the job requirements for Completion Time and shall conform to
the requirements set forth in the Contract Documents.
7.2 Progress Meetings
The Contractor shall schedule and hold regular progress meetings at least monthly and at other
times as requested by the Architect or Owner or required by progress of the Work. The Contractor,
the Owner, and all Subcontractors active on the site shall be represented at each meeting. The
Contractor may, at its discretion, request attendance by representatives of Contractor's suppliers,
manufacturers, and other Subcontractors.
The Contractor shall preside at the meetings, provide for keeping of the minutes, and provide the
Owner with a copy of the minutes. The purpose of the meetings will be to prepare statements of
payment, review the progress of the Work, maintain coordination of efforts, discuss changes in
procedures and personnel, and resolve problems.
S. CONSTRUCTION ADMINISTRATION
8.1 Notices to Owners and Authorities
The Contractor shall notify Owners of adjacent property and utilities in writing and sufficiently in
advance when prosecution of the Work may affect them. When it is necessary to temporarily deny
access by Owners or tenants to their property, or when any utility service connection must be
interrupted, the Contractor shall give notices in writing and sufficiently in advance to enable the
affected persons to provide for their needs. Notices will conform to any applicable local ordinance,
shall be provided in writing, and will include appropriate information concerning the interruption
and instructions on how to limit their inconvenience.
8.2 Notification of Street Closing
Where the Contractor has cause to close a street or thoroughfare for purposes of construction, the
Owner shall be provided reasonable advance notice, in writing, prior to such actions for approval
and coordination with appropriate agencies.
8.3 Detours and Barricading
The Contractor shall be responsible for providing barricading for all work areas during the
construction of this Project. Unless provided by Owner in the Technical Specifications contained
within the contract documents, the Contractor shall prepare and submit a barricading plan to the
Owner for Owner's approval. Owner's approval shall be for routing and for length of time of
barricading only. Plans shall be prepared by a Professional Engineer, Registered in the State of
Texas, and show all necessary barricades, signs, etc., required to provide a safe work site. Plans
shall be based on the recommendations in the Manual of Uniform Traffic Control Devices for
control of traffic in a construction area. It shall be the total responsibility of Contractor to maintain
the barricades, lights, signs, and all other items involved in the detouring of traffic.
Contractor shall provide appropriate barricades for use at night, and shall maintain all lighted
barricades for the duration of the project. Contractor shall designate an employee who will be
responsible for the maintenance of the barricades and lighting system on a twenty four (24) hour
basis, and shall provide a phone number where the responsible party can be reached on a twenty
four (24) hour basis.
8.4 Convenience to Traffic
When the Agreement requires the maintenance of vehicular traffic on an existing road, street, or
highway during the Contractor's performance of the Work, the Contractor shall keep such road,
street, or highway open to all traffic as provided herein and shall provide such maintenance as may
be required to accommodate traffic. The Contractor shall furnish, erect, and maintain barricades,
warning signs, flag persons, and other traffic control devices in reasonable conformity with the
manual of Uniform Traffic Control Devices for Streets and Highways (published by the United
States Government Printing Office), unless otherwise specified herein. The Contractor shall also
construct and maintain in a safe condition any temporary connections necessary for ingress to and
egress from abutting property or intersecting roads, streets, or highway.
The Contractor shall make its own estimate of all labor, Materials, Equipment, and incidentals
necessary for providing the maintenance of vehicular traffic as specified in this subsection. The
cost of maintaining vehicular traffic specified in this subsection shall not be measured or paid for
directly, but shall be included in the various contract items.
One-half of the traveled portions of the road must be open to traffic at all times unless otherwise
approved by the Owner. Work that will require less than one day to complete shall not be performed
on major or collector streets between 7:00 a.m. to 9:00 a.m., 4:00 p.m. to 6:00 p.m., or other peak
congestion periods as determined by the Owner.
8.5 Unfavorable Construction Conditions
During unfavorable weather, wet ground, or other unsuitable construction conditions, the
Contractor shall confine its operations to Work which will not be affected adversely by such
conditions. No portion of the Work shall be constructed under conditions which would affect
adversely the quality or efficiency thereof unless special means or precautions are taken by the
Contractor to perform the work in a proper and satisfactory manner.
8.6 Cleaning Up
The Contractor shall keep the premises free at all times from accumulations of waste materials,
rubbish, and other debris resulting from the Work. The Contractor will restore to their original or
better condition those portions of the site not designated for alteration by the Contract Documents.
The Contractor shall provide adequate trash receptacles about the work site, and shall promptly
empty the containers when filled. Construction materials, such as concrete forms and scaffolding
shall be neatly stacked by the Contractor when not in use. The Contractor shall promptly remove
splattered concrete, asphalt, oil, paint, corrosive liquids, and cleaning solutions from surfaces to
prevent marring or other damage.
Volatile wastes shall be properly stored in approved containers and removed daily. Wastes shall
not be buried or burned on the site or disposed of into storm drains, sanitary sewers, streams, or
waterways. All wastes shall be removed from the site and disposed of in a manner complying with
local, state, and federal laws. Adequate cleanup will be condition for recommendation of progress
payment applications.
Upon completion of the Work and before acceptance and final payment will be made, the
Contractor shall remove from and about the site all machinery, equipment, tools, surplus and
discarded and waste materials, debris, rubbish, temporary structures, and stumps or portions of
trees. The Contractor shall cut all brush and woods within the limits indicated and shall leave the
site in a neat and presentable condition, ready for occupancy by the Owner.
8.7 Site Administration
The Contractor shall be responsible for all areas of the work site, and all Subcontractors in the
performance of the Work. The Contractor will exert full control over the actions of all employees
and other persons with respect to the use and reservation of property and existing facilities, except
such controls as may be specifically reserved to Owner or others. The Contractor has the right to
exclude from the site all persons who have no purpose related to the Work or its inspection, and
may require all persons on the site to observe the same regulations as Contractor requires of its
9.
employees.
8.8 Load Restrictions
The Contractor shall comply with all legal load restrictions in the hauling of materials on public
roads beyond the limits of the Work. A special permit will not relieve the Contractor of liability for
damage that may result from the moving of material or equipment. The operation of equipment of
such weight or so loaded as to cause damage to structures or to any other type of construction will
not be permitted. Hauling of materials over the base course or surface course under construction
shall be limited as directed. No loads will be permitted on a concrete pavement, base, or structure
before the expiration of the curing period. The Contractor shall be responsible for all damage done
by its hauling equipment and shall correct such damage at its own expense.
8.9 Applicable Codes
References in the Contract Documents to local codes mean codes used, referenced, required, or
adopted by the City of Lubbock, Texas, the State of Texas or the federal government.
8.10 Other Responsibilities
Contractor shall be responsible for securing all required construction and other related permits,
local, state or federal.
9.1 General
The award of this contract shall be based in part upon payment by the selected
Respondent/Contractor and its Subcontractors of wage rates not less than the general prevailing
rate of per diem wages for work of a similar character in the locality in which the Work is
performed, and not less than the general prevailing rate of per diem wages for legal holiday and
overtime work.
The selected Respondent/Contractor shall comply with all requirements of the prevailing wage law
of the State of Texas, Texas Government Code, Chapter 2258, including the latest amendments
thereto.
The prevailing wage law does not prohibit payment of more than the general prevailing rate of
wages.
9.2 Records
The selected Respondent/Contractor and each Subcontractor shall keep an accurate record showing
the names and occupations of all laborers, workers, and mechanics employed, together with the
actual wages paid to each worker. At all reasonable hours, such records shall be open to inspection
by the representatives of Owner.
9.3 Penalty
If the selected Respondent/Contractor or any Subcontractor fails to comply with the prevailing
wage law, it shall forfeit to Owner sixty dollars ($60.00) per day for each laborer, workman, or
mechanic who is paid less than the specified rate, pursuant to §2258.023 of the Texas
Government Code.
9.4 Hours of Labor
The selected Respondent/Contractor shall comply with all requirements of the hours of work on
public works defined by Texas Government Code §650.001, including the latest amendments
thereto, as an eight (8) hour work day. Violation of this provision is punishable by fine and
imprisonment pursuant to §650.003 of the Texas Government Code.
9.5 Veterans Preference
Pursuant to Texas Government Code, §657.004, the selected Respondent/Contractor shall give
preference in employment to honorably discharged veterans who were engaged in the services of
the United States in time of war or conflict and who are and have been citizens of Texas for not
less than five (5) years.
9.6 Prevailing Wage and Hour Decision
Chapter 2258 of the Texas Government Code requires contractors and subcontractors performing
work on public works contracts to pay wages at a rate consistent with the rate prevailing in the area.
Under federal law, the United State Department of Labor is required to maintain a prevailing Wage
and Hour decision for each geographical area.
Compliance with the published decision meets the requirements of the Texas Government Code.
1. If the Wage Decision lists fringe benefits, you must either provide the benefits or pay the
hourly equivalent in cash in addition to the predetermined wage.
2. Labor classifications not appearing on the Wage Decision will be deferred to the U.S.
Department of Labor (DOL) for approval.
9.6.1 Prevailing Wage and Benefit Exhibits A, B & C
The Prevailing Wage and Benefit Exhibits attached to these Owner Construction General
Conditions is the Prevailing Wage and Hour Decision applicable to the construction
contract. The Contractor shall be solely responsible for compliance with the applicable
portions of Davis -Bacon and Related Acts, and any Prevailing Wage and Hour Decision
that is applicable or may become applicable at the time work is performed.
10. INDEMNIFICATION OF OWNER
10.1 CONTRACTOR AGREEMENT TO INDEMNIFY AND HOLD HARMLESS
OWNER
By the execution of a contract pursuant to which these "Owner's Construction
General Conditions" apply, Contractor covenants and agrees to FULLY
INDEMNIFY DEFEND AND HOLD HARMLESS,
OWNER and the elected and appointed officials, employees, officers, directors,
volunteers, and representatives of Owner, individually or collectively, from and
against any and all costs, claims, liens, damages, losses, judgments, expenses, fees,
fines, penalties, proceedings, actions, demands, causes of action, liability and suits of
any kind and nature, including but not limited to, personal or bodily injury, death or
property damage, made upon Owner directly or indirectly arising out of, resulting
from or related to Contractor's activities under this Contract, including any acts or
omissions of Contractor, or any agent, officer, director, representative, employee,
consultant or subcontractor of Contractor, and their respective officers, agents,
employees, directors and representatives, or the joint negligence of Contractor or
Contractor's subcontractors or suppliers and any other entity, including Owner,
while in the exercise of performance of the rights or duties under this Contract, or
sustained in or upon the Project premises, or as a result of anything claimed to be
done or admitted to be done by the Contractor hereunder. Nothing herein shall
require Contractor to indemnify, defend or hold harmless any indemnified party for
the indemnified party's gross negligence or willful misconduct.
10.2 CONTRACTOR AGREEMENT TO INDEMNIFY OWNER FROM
INFRINGEMENT OF INTANGIBLE PROPERTY RIGHTS
Contractor shall protect and indemnify the Owner from and against all claims,
damages, judgments and losses arising from infringement or alleged infringement of
any United States patent, or copyright that arise out of any of the work performed by
the Contractor or the use by Contractor, or by Owner at the direction of Contractor,
of any article or material. Upon becoming aware of a suit or threat of suit for patent
or copyright infringement, Owner shall promptly notify Contractor and Contractor
shall be given full opportunity to negotiate a settlement. Contractor does not warrant
11
against infringement by reason of Owner's or Project Architect's design of articles or
their use in combination with other materials or in the operation of any process. In
the event of litigation, Owner agrees to cooperate reasonably with Contractor and
parties shall be entitled, in connection with any such litigation, to be represented by
counsel at their own expense.
10.3 No Rights Created in Third Parties
The provisions of this indemnification are solely for the benefit of the parties hereto and not
intended to create or grant any rights, contractual or otherwise, to any other person or entity.
10.4 Contractor Notice of Claims to Owner
Contractor shall promptly advise Owner in writing of any claim or demand against Owner or
against Contractor which involves Owner and known to Contractor and related to or arising out of
Contractor's activities under this Contract.
10.5 Survival of Indemnity and Hold Harmless Provisions
These indemnity and hold harmless provisions of this Part 10 "Indemnification of Owner", shall
survive the expiration or termination this Agreement regardless of the reason for termination.
BONDS APPLICABLE TO "PUBLIC WORK CONTRACTS"
"Public work contract" means a contract for constructing, altering, or repairing a public building or
carrying out or completing any public work pursuant to which the Public Work Performance and
Payment Bond provisions of Chapter 2253 of the Texas Government Code apply.
11.1 Construction Bonds
Contractor is required to tender to Owner, prior to commencing the Work, performance and
payment bonds in the amount of the contract, as required by Texas Government Code, Chapter
2253 "Public Work Performance and Payment Bonds". On Construction Manager -at -Risk and
Design -Build Projects the Owner shall require a security bond, as described in Subsection 11.1.2
below.
11.1.1 Bond Requirements
Each bond shall be executed by a corporate surety or sureties authorized to do business in
the State of Texas and acceptable to Owner, on Owner's form, and in compliance with the
relevant provisions of the Texas Insurance Code. If any bond is for more than ten (10)
percent of the surety's capital and surplus, Owner may require certification that the
company has reinsured the excess portion with one or more reinsurers authorized to do
business in the State. A reinsurer may not reinsure for more than ten (10) percent of its
capital and surplus. If a surety upon a bond loses its authority to do business in the State of
Texas, Contractor shall, within thirty (30) days after such loss, famish a replacement bond
at no added cost to Owner.
(a) A Performance bond is required if the Contract Sum is in excess of$100,000.
The performance bond is solely for the protection of Owner. The performance
bond is to be for the Contract Sum to guarantee the faithful performance of the
Work in accordance with the Contract Documents. The form of the bond shall be
approved by the Office of the Attorney General of Texas. The performance bond
shall be effective through Contractor's warranty period.
(b) A Payment bond is required if the Contract price is in excess of $50,000. The
payment bond is to be for the Contract Sum and is payable to Owner solely for the
protection and use of payment bond beneficiaries. The form of the bond shall be
approved by the Office of the Attorney General of Texas.
11.1.2 Security Bond
The security bond provides protection to Owner if Contractor presents an acceptable
Guaranteed Maximum Price ("GMP") to Owner but is unable to deliver the required
payment and performance bonds within the time period stated below.
11.1.3 When Bonds Are Due
(a) Security bonds are due before execution of a Construction Manager -at -Risk or
Design -Build Contract.
(b) Payment and performance bonds are due before execution of a contract on
competitively bid or competitively sealed proposal projects or before execution of
a Guaranteed Maximum Price (GMP) proposal on Construction Manager -at -Risk
projects or Design -Build projects.
11.1.4 Power of Attorney
Each bond shall be accompanied by a valid power of attorney (issued by the surety
company and attached, signed and sealed with the corporate embossed seal, to the bond)
authorizing the attorney -in -fact who signs the bond to commit the company to the terms of
the bond, and stating any limit in the amount for which the attorney can issue a single bond.
11.1.5 Bond Indemnification
The process of requiring and accepting bonds and making claims thereunder shall be
conducted in compliance with Tex. Gov't Code, Chapter 2253. IF FOR ANY REASON A
STATUTORY PAYMENT OR PERFORMANCE BOND IS NOT HONORED BY THE
SURETY, CONTRACTOR SHALL FULLY INDEMNIFY AND HOLD OWNER
HARMLESS OF AND FROM ANY COSTS, LOSSES, OBLIGATIONS OR
LIABILITIES IT INCURS AS A RESULT THEREOF.
11.1.6 Furnishing Bond Information
Owner shall furnish certified copies of the payment bond and the related Contract to any
qualified person seeking copies who complies with Tex. Gov't Code § 2253.026.
11.1.7 Claims on Payment Bonds
Claims on payment bonds must be sent directly to Contractor and its surety in accordance
with Texas Government Code § 2253.041. All payment bond claimants are cautioned that
no lien exists on the funds unpaid to Contractor on such Contract, and that reliance on
notices sent to Owner may result in loss of their rights against Contractor and/or its surety.
Owner is not responsible in any manner to a claimant for collection of unpaid bills, and
accepts no such responsibility because of any representation by any agent or employee.
11.1.8 Payment Claims when Payment Bond not Required
The rights of Subcontractors regarding payment are governed by Texas Property Code,
Subchapter J, §§ 53.231 53.239, when the value of the Contract between Owner and
Contractor is less than $25,000.00. These provisions set out the requirements for filing a
valid lien on funds unpaid to Contractor as of the time of filing the claim, actions necessary
to release the lien and satisfaction of such claim.
11.1.9 Sureties
A surety shall be listed on the US Department of the Treasury's Listing of Approved
Sureties maintained by the Bureau of Financial Management Service (FMS),
www.fms.treas.gov/c570, stating companies holding Certificates of Authority as
acceptable sureties on federal bonds and acceptable reinsuring companies (FMS Circular
570).
EXHIBIT A
City of Lubbock
Building Construction
Prevailing Wage Rates
Crag Hourly Rate
Automatic Fire Sprinkle Fitter, Certified
28.00
Block, Brick, and Stone Mason
23.00
Carpenters -Acoustical Ceiling Installation
16.00
Carpenter -Rough
13.00
Carpenter -All other work
16.50
Caulker/Sealers
12.00
Cement & Concrete Finishers
16.67
Commercial Truck Drivers
10.26
Crane & Heavy Equipment Operator
20.00
Door & Hardware Specialist
16.00
Drywall and Ceiling Tile Installers
16.00
Drywall Finishers & Tapers
12.00
Electrician
21-21
Floor Layers -Carpet and Resilient
19.00
Floor Layers -Specialty
18.00
Floor Layers -Wood
18.00
Glaziers
17.00
Heating, Air Conditioning & Refrigeration Svc. Tech
21.31
HVAC Mechanic Helper
13.62
HVAC Sheet metal Ductwork Installer
19.30
HVAC Sheet metal Ductwork Installer Helper
13.85
Insulation Workers -Mechanical
12.00
Irrigator -Landscape Certified
13.50
Laborer. Common or General
11.65
Laborer. Mason Tender -Brick
17.00
Laborer. Mason Tender-Cement/Conerete
16.92
Laborer: Roof Tear off
11.09
Roofer
17A4
Painters (Brush, Roller & Spray)
12.00
Paper Hanger
13.00
Pipe Fitters & Steamfitters
24.10
Plaster, Stucco, Lather and EIFS Applicator
17.00
Plumber/Medical Gas Installer
22.93
Plumber Helper
14.20
EXHIBIT B
City of Lubbock
Heavy and Highway
Prevailing Wage Rates
Craft Hourly Rate
Power Equipment Operator -Tower Crane
30.00
Hydraulic Crane Operators 60 tons & above
32.00
Operator Backhoc/ExcavatoriTruck hoe
20.25
Bobcat/Skid Steer/Skid Loader
15.22
Drill
16.00
Grader Blade
18.00
Loader
18.00
Mechanic
22.85
Paver (Asphalt, Aggregate, & Concrete)
17.00
Roller
15.00
Reinforcing Iron & Rebar Workers
14.33
Sheet Metal Workers, Excludes HVAC Duct Installation
21.38
Structural Iron & Steel Workers/Metal Building Erector
15.00
Asphalt Distributor Operator
16.50
Asphalt Paving Machine Operator/Spreader Box Operator
18.75
Backhoe Operator
18.00
Cement Mason/Concrete Finishers (Paving Structures)
15.00
Crane Operator (Hydraulic)
25.00
Electrician
17.50
Laborer
13.50
Laborer, Common
15.64
Laborer, Utility
13.50
Crane, Lattice Boom 80 Tons or Less
30.00
LoaderBackhoe
18.00
Roller/Other
15.00
Welder Certified/Structural Steel Weld
25.00
EXHIBIT C
City of Lubbock
Overtime
Legal Holiday
Prevailing wage Rates
The rate for overtime (in excess of forty hours per week) shall be as required by the Fair Labor
Standards Act.
The rate for legal holidays shall be as required by the Fair Labor Standards Act.
Attachment 2
LEE LEWIS CONSTRUCTION. INC.
CMAR'S GENERAL CONDITIONS AND FEES
-32-
REVISED
City of Lubbock, Tx
RFP 19-14224-TF
Construction Manager at Risk (CMAR) for the construction of
Three (3) Police Department Substations
PROPOSAL PRICE SHEET
A. PRE -CONSTRUCTION PHASE SERVICES:
Lump Sum: Zero Dollars
B. CONSTRUCTION PHASE SERVICES:
Percent: TWO
(20 %)
C. GENERAL CONDITIONS:
of Guaranteed Maximum Price
Not to Exceed Amount: Seven Hundred Seventy -Four Thousand, E4ght Hundred Seventy -Nine Dollars
($ 774,a79
To include, but not limited to:
2) Assistant Project Manager (at each sites
3) Project Manager (off site)
4) Superintendent (at each site)
5) Assistant Superintendent
6) Clerical Support
7) Project Field Engineer
8) Admin. Assistant
9) General Superintendent
10) Project Executive
11) Project Scheduler
12) Estimator
13) Safety Officer
14) Clerk of the Works
15) Surveyor
16) Other:
17) Other:
11) Janitorial Services
12) Misc. Small Tool & Consurnables
C.0 W 13) Equipment Rental
C O.w 14) Temporary Site Fencing
15) Project Signage
16) All Risk Builders Risk Ins.
17) COL Insurance:
18) All other Ins. in addition to CGL
19) Contractors Bond
20) Building Permit Fees
C O W 21) Construction Equip. Freight & Ins.
22) Ind. Testing & Inspection - By Owner
C O W 23) Construction Clean-up, Dumpsters, & Haul -off
24) Final Clean-up
C.0 W 25) Special Testing Equip. Rental
26) Final Project Cost Certification
27) Equipment Gas/Oil
28) Security
MATERIALS C 0 W 29) Lifting/Hoisting Equipment
Item 30) Temporary Toilets
l) Field Engineering Equip 31) Temporary Storage Trailer+Container
2) Field Project Office 32) lee and Water:
3) Temp. Fire Extinguisher & Safety Equipment 33) Vehicle Use, Mileage FOperation/Fuel
4) Office Furniture 34) Temporary Water and Power Usage - By Owner
5) Office Supplies 35) Taxes
6) Postage/Fed Ex/Courier c. o w 36) SWPPP 1rosion Control Measure
7) Misc. Document Printing/Reproduction 37) Lodgmg/Relocation
8) Copy Machine, Toner & Paper 38) Project Meals. -Meetings
9) Computerse Printers/Networks/Software 39) Project Related Travel Expenses
10) Telephone, Cell Phone, Internet & Fax Services 40) Other (Specify):