HomeMy WebLinkAboutResolution - 2017-R0035 - Lee Lewis Construction - 01/26/2017Resolution No. 2017-R0035
Item No. 7.2
January 26, 2017
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 for
and on behalf of the City of Lubbock, Contract No. 13109 for construction manager at risk
services for city -owned property formerly known as the Omni Building, 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 if fully set forth herein and shall
be included in the minutes of the City Council.
Passed by the City Council on January 26, 2017
DANIEL M. PO E, MAYOR
ATTEST:
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ca Garza, City Secret ry
APPROVED AS TO CONTENT:
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Mark ean' +Akd, Assistant City Manager
APPROVED AS TO FORM:
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K lli Leisure, Assistant City Attorney
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1.10.17
Resolution No. 2017-RO035
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, made to be effective on the 26th day of January, 2017, 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`x' Street, Lubbock, Texas 79457, hereinafter called "Owner".
WHEREAS, in accordance with law, Owner, has caused Contract Documents to be prepared and a
Request for Qualifications to be published, for and in connection with Request for Qualifications for
Construction Manager at Risk Services, for the City owned property formally known as the Omni Building.
("RFQ No. 17 -13109 -MA") at Lubbock, Texas; and
WHEREAS, CMAR, in response to the Request for Qualifications, has submitted to Owner, in the
manner and at the time specified, a Qualifications package in accordance with the "Instruction to Bidders"
contained within the Request for Qualifications; and
WHEREAS, The City Council of the City of Lubbock, by Resolution adopted on January 26, 2017,
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
1.0 Scope of Work
CMAR services for the City owned property formerly known as the Omni Building renovation which, in
general, includes Scope of Work as described in RFQ No. 17 -13109 -MA, incorporated herein by reference
for all purposes (hereinafter the "Work"). The Work includes Pre -construction and Construction services
for the Work. The Work is located at1314 Ave K, Lubbock, Lubbock County, Texas. The CMAR Services
under the direction of the Owner will provide consultation and construction services during the design and
construction phase of project for an eleven (11) story complex (formerly known as the Omni Building).
The Omni Building is approximately 180,000 square feet.
The Architect is: Perkins + Will
10100 North Central Expressway Suite 300
Dallas, TX 75231
1.1 CONTRACT DOCUMENTS
The Contract Documents consist of this Agreement, Request for Qualifications, RFQ No. 17 -13109 -MA,
Owner's Construction General Conditions, Attachment 1, CMAR's General Conditions and fees
proposed, Attachment 2, CMAR's response to Owner's Request for Qualifications and all documents,
conditions, Specifications, technical data, Drawings, requirements as of the time this Agreement is entered
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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.
1.2 GENERAL CONDITIONS
For the Construction Phase, the General Conditions of the Contract shall be the Owner's construction
contract, General Conditions ("Owner's General Conditions"), included with this Agreement as
Attachment 1, and the Qualifications package, dated November 8, 2016, and the CMAR's Project General
Conditions Detail, 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.
1.3 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 Owners
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
2.0 GENERAL PROVISIONS
2.0.1 The CMAR shall perform the services described in this Article. The services to be provided under
Parts 2.1 and 2.2 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.
2.0.2 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 renovation of the Work.
2.0.3 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 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.
2.0.4 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.
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2.0.5 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.
2.1 PRECONSTRUCTION PHASE
2.1.1 PRELIMINARY EVALUATION
The CMAR shall provide a preliminary evaluation of the Owner's program and Work budget requirements,
each in terms of the other.
2.1.2 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.
2.1.3 PRELIMINARY WORK SCHEDULE
When the Work requirements described in Subparagraph 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.
2.1.4 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.
2.1.5 PRELIMINARY COST ESTIMATES
2.1.5.1 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.
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2.1.5.2 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.
2.1.5.3 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.
2.1.5.4 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.
2.1.6 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.
2.1.7 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.
2.1.8 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, 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.
2.1.9 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.
2.2 GUARANTEED MAXIMUM PRICE PROPOSAL AND CONTRACT TIME
2.2.1 When the Drawings and Specifications are sufficiently complete, and after the bids and responses
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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.
2.2.2 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.
2.2.3 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 Subparagraph 2.2.2 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.
2.2.4 BASIS OF GUARANTEED MAXIMUM PRICE
The CMAR shall include with the GMP proposal a written statement of its basis, which shall include:
2.2.4.1 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.
2.2.4.2 A list of allowances and a statement of their basis.
2.2.4.3 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.
2.2.4.4 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.
2.2.4.5 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..
2.2.5 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.
2.2.6 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.
2.2.7 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.
2.2.8 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.
2.2.9 The Owner shall authorize and cause the Architect to revise the Drawings and Specifications to the
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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.
2.2.10 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.
2.3 CONSTRUCTION PHASE
2.3.1 GENERAL
2.3.1.1 The Construction Phase shall commence on the earlier of -
(1)
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(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.
2.3.2 BIDDING AND ADMINISTRATION
2.3.2.1 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.
2.3.2.2 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.
2.3.2.3 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
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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.
2.3.2.4 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 2.3.2.1 through 2.3.2.3 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.
2.3.2.5 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 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.
2.3.2.6 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated
to a special design shall conform to the payment provisions of Subparagraphs 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.
2.3.2.7 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.
2.3.2.8 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.
2.3.2.9 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.
2.3.2.10 The 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 shall identify variances between actual and estimated
costs and report the variances to the Owner and Architect at regular intervals.
2.4 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.
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2.5 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.
2.6 INDEMNIFICATION
2.6.1 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 IN 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.
2.6.2 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.
2.7 WAGE REQUIREMENTS
2.7.1 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 State of Texas has adopted the Federal Davis -Bacon wage rates for use in
Texas pursuant to and in accordance with the Texas Government Code, Section 2258.022. CMAR
and any contractor or subcontractor hired in relation to the Work may access the U. S. Department
of Labor web site at the following web address to obtain the rates to be used in Lubbock County
and in relation to the Work:
http: ''www.wdol.gov/dba.aspx
2.7.2 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 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 Work, 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 Clause 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
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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 3.1.4.1
through 3.1.4.4, 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 Work, 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 Work 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, 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 Work 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 Work 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;
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(2) The Work Manager shall render decisions, promptly, consistent with the Work 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 May 28, 2015 and as amended July, 28 2016,
for the Work. 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 Work. 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 Work which differ from those generally applicable to construction in the
jurisdiction of the Work. The Owner shall furnish such legal services as are necessary to provide the
information and services required under part 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 parts 2.1 and 2.2 the CMAR's compensation shall be based on the
fees proposed in the CMAR response to RFQ No. 17 -13109 -MA dated December 6, 2016 copy of which is
attached hereto, identified as Attachment H.
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_
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5.1 COMPENSATION
5.1.1 For the CMAR's performance of the Work as described in Part 2.3, 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 and Seventy -Five Hundredths Percent (2.75%) of the actual allowed
Cost of Work For Construction Phase, Part 2.3, 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 Work 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 Part 2.2, 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 Subparagraph 5. 1.1 of this Agreement.
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 Work 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"). Costs to be reimbursed shall include:
6.1.2 LABOR COSTS
Labor Costs shall include:
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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 Work Manager directly attributable to the 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 Clauses
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 Clause 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 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,
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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 Clause
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 Subparagraph 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 Subparagraphs 6. 1.1 through 6.1.8 shall be included in the Cost of the Work
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notwithstanding any provision of Attachment 1, Owners Construction General Conditions, or other
Conditions of the Contract which may require the CMAR to pay such costs, unless such costs are excluded
by the provisions of Paragraph 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 Work site office, except as specifically provided
in Clauses 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 Work site office except
as specifically provided in Part 6.1.
6.2.1.3 Overhead and general expenses, except as may be expressly included in Part 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 Clause 6.1.7, any cost not specifically and expressly described in
part 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 this Subparagraphhall 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 Contract; 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 Work, and the CMAR
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shall preserve these for a period of three years after final payment, or for such longer period as may be
required by law.
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 at Section 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
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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 Clauses at the rate
stated in Subparagraph 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 Clauses 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
Subparagraph 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 Subparagraph 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 Subparagraph 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
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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 such reason shall be
stated. The balance, if any, of any such Payment application shall be paid in a timely manner.
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.
7.2.4 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 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 Work 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 Work Costs accompanied by the Architect's Certificate and Affidavit
ME
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.
7.2.7 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.
7.2.8 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 liens, 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 Work 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 Work. 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 Work 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 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
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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 Part 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 part 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 Work 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 Work 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 Work 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 Work, 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:
8.1.1 The CMAR must provide the Owner with certificates of insurance prior to beginning work on the
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Work. Each certificate of insurance must include the Work 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 Work,
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 excess/umbrella 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 at minimum limits: $1,000,000.00 combined
single limit per occurrence for bodily injury, personal injury, and property damage.
The general aggregate limit shall apply separately to this Work or shall be equal to or
greater than $4,000,000.00. Coverage must be written on an occurrence form of policy
and must include coverage for premises liability, products liability, completed operations,
explosion, collapse, independent contractors liability, fire, legal liability ($50,000 limit),
and underground property damage. Coverage for products/completed operations must be
maintained for at least ten (10) years after the Work is completed. Contractual liability
must be maintained with respect to the CMAR's obligations in this agreement.
8.1.2.2 Workers' compensation insurance at statutory limits, including Employers Liability at
minimum limits of $500,000 bodily injury by accident, $500,000 by disease, aggregate.
Additional requirements are provided in Paragraph 8.1.5
8.1.2.3 Commercial Automobile Liability insurance at minimum combined single limits of
$1,000,000 per accident, as respects all owned, non -owned, and hired vehicles.
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;
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
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ANII or better throughout the Work 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 Work, for
the duration of the Work.
b. Duration of the Work - Includes the time from the beginning of the Work on the
Work until the CMAR's work on the Work has been completed and accepted by
Owner.
C. Persons providing services on the Work ("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
Work.
d. Services - Include, without limitation, providing, hauling, or delivering equipment
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or materials, or providing labor, transportation, or other service related to the
Work.
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 Work, for the duration of the Work.
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 Work, the CMAR must, prior to the end of the coverage period, file 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 Work, and provide to
Owner:
a. A certificate of coverage, prior to that person beginning performance on the Work,
so Owner will have on file certificates of coverage showing coverage for all
persons providing services on the Work; 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 Work.
8.1.5.6 The CMAR shall retain all required certificates of coverage for the duration of the Work
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 Work.
8.1.5.8 The CMAR shall post on the Work site a notice, in the text, form and manner prescribed
by the Workers' Compensation, informing all persons providing services on the Work 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 Work, 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
Work, for the duration of the Work;
b. Provide to the CMAR, prior to that person beginning performance on the Work, a
certificate of coverage showing that coverage is being provided for all employees
of the person providing services on the Work, for the Duration of the Work.
C. Provide the CMAR, prior to the end of the coverage period, a new certificate of
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coverage showing extension of the coverage, if the coverage period shown on the
current certificate of coverage ends during the Duration of the Work.
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 performance
on the Work;
(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 Work;
(iii) Retain all required certificates of coverage on file for the duration of the
Work 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 Work; 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.
8.2.3 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:
8.2.3.1 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.
8.2.3.2 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.
8.2.3.3 Apply to foundations, falsework, temporary buildings, and debris removal including
demolition occasioned by enforcement of applicable legal requirements.
8.2.3.4 Provide coverage for consequential damage ensuing from faulty workmanship, material,
construction, or design (resulting damage only, not cost of making good the
workmanship).
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8.2.3.5 Be maintained until the Owner has accepted the Work as completed or until no one other
than the Owner has an insurable interest in the Work.
8.2.3.6 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.
8.3 PERFORMANCE BOND AND PAYMENT BOND
8.3.1 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
Performance and Payment bonds and shall be delivered to Owner when a GMP is established through
Amendment Number 1.
8.3.2 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.
8.3.3 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.
8.3.4 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.
8.3.5 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.
8.3.6 The CMAR shall deliver the required bonds to the Owner within 10 days of the acceptance of this
Agreement by Owner.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 RESOLUTION OF CONTRACT DISPUTES.
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
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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.
9.2 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.
9.3 OTHER PROVISIONS
9.3.1 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.
9.3.2 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.
9.3.3 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 Work. They are not to be used by the CMAR,
subcontractors, sub -subcontractors, trade contractors or suppliers on other projects, or for additions to this
Work 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.
9.3.4 GOVERNING LAW
The Contract shall be governed by the law of the State of Texas.
9.3.5 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.
9.3.6 VENUE
Venue shall be in Lubbock County, Texas.
9.3.7 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.
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9.3.8 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 Agreement.
9.3.9 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.
9.3.10 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:
With a copy to:
Name:
Jarrett Atkinson
Title:
City Manager
Address:
1625 13'x' Street
Lubbock, Texas 79457
Telephone:
806-775-2016
Chad Weaver
City Attorney
City of Lubbock
1625 13 th Street
Lubbock, Texas 79457
IF TO CONSTRUCTION MANAGER:
Name: LEE LEWIS CONSTRUCTION, INC.
Attention: Liz Lonngren
Address: .7810 Orlando Avenue
Lubbock, Texas, 79423
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9.3.11 RELATIONSHIP OF PARTIES
9.3.11.1 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.
9.3.11.2 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,
employees, representatives, engineers, consultants, contractors and subcontractors engaged
in the performance of the Work.
9.3.11.3 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.
9.3.12 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 Work.
9.3.13 TIME IS OF THE ESSENCE
CMAR understands and agrees that time is of the essence.
9.3.14 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.
9.3.15 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.
9.3.16 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.
No
ARTICLE 10
TERMINATION OR SUSPENSION
10.1 TERMINATION DURING PRE -CONSTRUCTION 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 part 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 Subparagraph 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 CONTSTRUCTION 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:
Cease all operations and not enter into any further subcontracts or purchase
orders;
2. Take actions necessary for the preservation and protection of the Work; and
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:
Repeatedly refuses or fails to:
a. Supply enough properly skilled workers or proper materials; or
b. Make full and timely payment to Subcontractors for materials or labor
according to CMAR and Subcontractor written agreements;
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Repeatedly or knowingly disregards any applicable laws, statutes, ordinances,
codes, rules, regulations, or enforceable orders of a public authority;
Substantially breaches any provision of the Contract Documents;
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;
Actually or constructively abandons, or puts Owner on actual or constructive
notice that it intends to abandon, the Work;
6. Fails to furnish Owner with an unconditional release of lien or a 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
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
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 a Subcontractor,
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:
Issuance of an order of a court or other public authority having jurisdiction that
requires all Work to be stopped;
2. An act of government, such as a declaration of national emergency that requires
all Work to be stopped;
Because the Owner has not made payment on a Certificate for Payment within
the time stated in the Contract Documents; or
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:
a. 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;
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b. The CMAR has provided an additional ten (10) days written notice to the
Owner and the Architect of such failure; and
C. 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:
Work performed in accordance with the Contract Documents; and
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.
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.
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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 LUB CK
Daniel M. Pope, MA OR
f) 16 _e A '4 -A—
ca Garza, City Secreta y
APPROVED AS TO CONTENT:
alu�- U). f;v-�
Wesley D.v rett, Director of Facilities
APPROVED AS TO FORM:
4isur it tto
CONSTRUCTION MANAGER AT RISK
LEE LEWIS CONSTRUCTION, INC.
By:
Liz L gren, Executoe V.P.
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Attachment 1
. aim
Attachment 1
CITY OF LUBBOCK, TEXAS
OWNER'S CONSTRUCTION GENERAL CONDITIONS
1 - 9 Q.
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.
1.0 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 Qualifications 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.
2.0 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 RFQ, 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 n the Contract Documents. The Architect or
Engineer's action will be taken with such 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 theProject.
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 payor
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 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.
2.8 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.
2.9 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.
2.10 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.
2.11 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.
2.12 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.
2.13 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, ResidentProject
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 ions with subcontractor at all times are required of Contractor on
this project.
The Contractor will provide competent, suitably qualified personnel to plan and
layout 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.
2.14 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.
2.15 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.
2.16 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.
2.17 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 $50,000.00. 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.
2.18 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
2.19 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.
2.20 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.
2.21 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.
2.22 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.
2.23 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, may be
rej ected.
If required by the Owner prior to approval of final payment as set forth in
paragraph 3.8, 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 3.9, 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.
2.24 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.
2.25 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.
2.26 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.
2.27 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.
2.28 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
(Architect/Engineer). 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.
2.29 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.
3.0 Contract Measurement and Payment
3.1 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.
3.2 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.
3.3 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.
3.4 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.
3.4.1 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.
3.4.2 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.
3.4.3 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.
3.4.4 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.
3.5 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.
3.6 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.
l . 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.
3. 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.
3.7 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.
3.8 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.
3.9 Guarantee
Upon Final Completion of Contractor's work, which includes acceptance of all
punch list items, the Contractor shall furnish 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.
3.10 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.
4.0 Project Requirements
4.1 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.
4.2 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.
4.3 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.
4.4 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.
4.5 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
5.0 Materials
5.1 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.
5.2 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.
5.3 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.
5.4 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.
5.5 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.
5.6 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.
5.7 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.
6.0 Project Meetings
6.1 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
requirementsset forth in the Contract Documents.
6.2 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.
7.0 Construction Administration
7.1 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.
7.2 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.
7.3 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.
7.4 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 completeshall 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.
7.5 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.
7.6 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.
7.7 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 personswho 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 employees.
7.8 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.
7.9 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.
7.10 Other Responsibilities
Contractor shall be responsible for securing all required construction and other
related permits, local, state or federal.
8.0 Employment Requirements
8.1 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.
8.2 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.
8.3 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.
8.4 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.
8.5 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.
8.6 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.
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.
8.7 Prevailing Wage and Benefit Attachment
The Prevailing Wage and Benefit Attachment to these Owner Construction
General Conditions is the Prevailing Wage and Hour Decision applicable to
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
timework is performed.
9.0 INDEMNIFICATION OF OWNER
9.1 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.
9.2 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 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.
9.3 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.
9.4 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.
9.5 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.
Attachment 2
LewisMD Lee t
Construction, Inc.
CELEBRATING 40 YEARS
January 19, 2017
Marta Alvarez, Director of Purchasing
City of Lubbock
1625 13th Street
Lubbock, Texas 79401
RE: Construction Manager at Risk Fees
Omni Building
Dear Mr. Everett,
Lee Lewis Construction is pleased to submit the following fees:
Pre -Construction Services for Omni Building - $25,000
Construction Services Fees for Omni Building - 2.75%
7810 Orlando Avenue
Lubbock, Texas 79423
8o6-797-8400
17177 Preston Road, Suite z6o
Dallas, Texas 75248
902o N Capital of Texas Hwy.
Building s, Suite 330
Austin, Texas 78759
Lee Lewis Construction is excited to be working with the City of Lubbock on these very important project.
Please do not hesitate to call me should you have any questions.
Best,
01/19f,al
Liz Lonngren, AIA, CSI
Executive Vice President
Lee Lewis Construction, Inc.
CC: Wes Everett
Lee Lewis Construction, Inc.
The following is a breakdown is the components that constitutes the Construction
Manager Fee
Profit
All Home Office Expenses
Corporate Officers
Project Executive
Corporate Safety Manager
Corporate Quality Control Manager
Schedulers
Estimators
Employee Bonuses
All Other Overhead Expenses
The following are allowable General Condition charges:
On -Site Staff
Project Manager
Project Superintendent & Assistant Superintendents
Project Engineer
QC Inspector
Admin Support
Others (With Prior Approval)
Salary (Including Holidays and Vacations)
Benefits (FICA, Medical/Dental/Visual/Life Insurance, Retirement)
Project -Related Travel Expenses
Project Related Business Meals and Meetings
Project Specific Training
Cell Phones, Radios, and Pagers (Reasonable Start -Up and Monthly Fees)
Vehicles
Rental (Normally Includes Routine Maintenance and Repair Costs)
Fuel
Routine Maintenance and Repairs (If not included in Rental Costs)
Insurance (If not include din Rental Costs)
Site Operations Expenses
Site Office
Trailer/Building Rental
Furniture and Equipment
Office Supplies
Utilities
Phone, Fax, Computers, Software, and Computer Networks
SWPPP/Erosion Control
Site Fencing and Security
Safety Equipment, Supplies and Barricades
Portable and Non -Portable Water
Lifting and Hoisting Equipment
Temporary Toilets
Project Signage
Construction Clean-up and Debris Removal
Final Cleaning
Project Temporary Utilities
Construction Equipment and Supplies
Rental (Normally Includes Routine Maintenance and Repair Costs)
Fuel
Routine Maintenance and Repairs (If not included in Rental Costs)
Insurance (If not included in Rental Costs)
Special Tools and Equipment
Emergency Repairs (Less Insurance Payments or Charge -Backs)
Document Reproduction
Postage and Express Delivery
Insurance
Performance and Payment Bonds (Less any Rebates)
Specialty Consultants (With Prior Approval)
Other (Specify)
CERTIFICATE OF INTERESTED PARTIES
FORM 1295
1 of 1
Complete Nos. 1- 4 and 6 if there are interested parties.
OFFICE USE ONLY
Complete Nos.1, 2, 3, 5, and 6 if there are no interested parties.
CERTIFICATION OF FILING
Certificate Number:
1 Name of business entity filing form, and the city, state and country of the business entity's place
of business.
2017-160165
Lee Lewis Construction, Inc.
Lubbock, TX United States
Date Filed:
01/31/2017
2 Name of governmental entity or state agency that is a party to the contract for which the form is
being filed.
City of Lubbock
Date Acknowledged:
01/31/2017
3
Provide the identification number used by the governmental entity or state agency to track or identify the contract, and provide a
description of the services, goods, or other property to be provided under the contract.
13109
Construction Manager at Risk
4
Name of Interested Party
City, State, Country (place of business)
Nature of interest
(check applicable)
Controlling
I Intermediary
5
Check only if there is NO Interested Party. o
X
6
AFFIDAVIT I swear, or affirm, under penalty of perjury, that the above disclosure is true and correct.
Signature of authorized agent of contracting business entity
AFFIX NOTARY STAMP / SEAL ABOVE
Sworn to and subscribed before me, by the said this the
day of
20 , to certify which, witness my hand and seal of office.
Signature of officer administering oath Printed name of officer administering oath Title of officer administering oath
Forms provided by texas Ethics Commission www.ethics.state.tx.us Version V1.0.277
CERTIFICATE OF INTERESTED PARTIES
FORM 1295
lofl
Complete Nos, 1- 4 and 6 if there are interested parties.
OFFICE USE ONLY
Complete Nos,1. 2. 3, 5, and 6 if there are no interested parties.
CERTIFICATION OF FILING
Certificate Number:
1
Name of business entity filing form, and the city, state and country of the business entity's place
of business.
2017-160165
Lee Lewis Construction, Inc.
Lubbock, TX United States
Date Filed:
01/31/2017
2
Name of govirnmenO entity or state agency that Is a party to the contract for which the form is
being filed.
City of Lubbock
Date Acknowledged:
3
Provide the Identification number used by the governmental entity or state agency to track or Identify the contract, and provide a
description of the services, goods, or other property to be provided under the contract
13109
Construction Manager at Risk
4
Nature of interest
Name of Interested Party
City, State, Country (place of business)
(check applicable)
Controlling
Intermediary
6
Check only if there is NO Interested Party.
X
6
AFFIDAVIT I swear, or affirm, under penalty of perjury, that the above disclosure is true and correct.
j¢ �q
7 - $
J¢ } Y WARD]2041
1+ he r e! e TOfra
ignaturedapoed agedt of contracting business entity
AFFIX NOTARY STAMP / SEAL ABOVE
van �
Sworn to and subscribed before me, by the said _ _�V t Y eV�� this the 31 day of'Gly+
_
20_A_I. to certify which, witness my hand and seal of office.
W G .
Sign re of officer administering oath Printed name of officer administering oath Title of officer administering oath
Forms proviaea Dy Texas Ethics commission www.ethics.state.tx.us Version V1.0.277