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R2019-293 2019-12-09 RESOLUTION NO. R2019-293 A Resolution of the City Council of the City of Pearland, Texas, awarding a Construction Manager at Risk to SpawGlass Corp in the amount of$36,520.00 for pre-construction services, $823,313.00 for General Conditions, and authorizing the payment of 3.00% for profit and overhead based on the Guaranteed Maximum Price which shall be subject to future City Council approval. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That the City Council hereby awards a Construction Manager at Risk contract to SpawGlass Corp in the amount of $36,520.00 for pre-construction services, $823,313.00 for General Conditions, and authorizing the payment of 3.00% for profit and overhead based on the Guaranteed Maximum Price which shall be subject to future City Council approval. Section 2. The City Manager or his designee is hereby authorized to execute a Construction Manager at Risk contract for the Shadow Creek Library Project. PASSED, APPROVED and ADOPTED this the 9th day of December, A.D., 2019. ,====0,7,2a Et( TOM REID 1 MAYOR ATTEST: ,��''��i,,,u���```��• £ (42fizi:514% MARIA RODRIGUEZ INTERIM CITY SECRETARY APPROVED AS TO FORM: DARRIN M. COKER CITY ATTORNEY REQUEST FOR PROPOSALS FOR CONSTRUCTION MANAGER AT RISK I 9'PLk _64 D TEXAS FST. , aN SHADOW CREEK LIBRARY RFP NO. 0519-40 PROJECT NO. FA1805 DUE DATE: August 29, 2019 CITY OF PEARLAND, TEXAS 3523 LIBERTY DRIVE. PEARLAND, TX 77581 www.pearlandtx.gov_ RFP-Construction Manager At Risk Shadow Creek Library TABLE OF CONTENTS I. INSTRUCTION TO OFFERORS II. CONDITIONS OF AGREEMENT III. PROPOSAL SUBMITTAL a. CONTRACTOR EXPERIENCE&QUALIFICATIONS d. CONTRACTOR KEY PERSONNELCONTRACTOR REFERENCESCONTRACTOR CURRENT WORK SCHEDULE/RECORD e. CONTRACTOR LITIGATION, CLAIMS, REPUTATION&COMPLIANCE f. CONTRACTOR SAFETY RECORD g. CONTRACTOR QUALITY CONTROL PROGRAM h. CONTRACTOR FINANCIAL RESOURCES i. CONTRACTOR'S PROPOSAL j. CONTRACTOR COST REDUCTION SUGGESTIONS k. PROPOSAL CERTIFICATION IV. STANDARD FORM OF CONSTRUCTION AGREEMENT INSTRUCTIONS TO OFFERORS 1.0 ADVERTISEMENT Sealed proposals addressed to the City of Pearland, Texas will be received for: CONSTRUCTION MANAGER AT RISK SHADOW CREEK LIBRARY RFP NO. 0519-40 The City of Pearland is seeking a qualified Construction Manager at Risk (CMAR) to provide Pre-Construction Services during the design phase and complete Construction Phase services for the design and construction of its Shadow Creek Library. The estimated construction cost for this project is $17.0 million dollars Complete responses to this Request for Proposals will be accepted until 2:00 p.m., Thursday, August 29, 2019, after which time all qualified proposals will be opened. At the public opening, names of the offerors will be read aloud and fees/prices, if any, will be read aloud. Proposals received after the due date and time will be returned unopened. Proposals will be received at the office of: All proposals must be submitted electronically to the City of Pearland Purchasing Office via the City's eBid system at https://pearland.ionwave.net LOCATION AND DESCRIPTION OF PROJECT Construct a permanent two-story County Branch Library facility on the west side consisting of approximately 39,000 square feet. The project will be located at 11801 Shadow Creek Parkway (FM2234)west of Kirby Drive on a 3.2 acre tract of previously undeveloped property. The multi-level state of the art library will include a lobby with 24-hour access, multipurpose meeting rooms, a 100 seat teaching theater, kitchenette, restrooms, children's library, tween library, young adult library, adult library, collaborative study rooms, a conference room, staff work areas, vending area with Café style seating, business center, self-checkout stations, RTF Maker Space (Radio/TV/Film), drive-thru materials pickup window, building support spaces, exterior roof decks and illuminated parking lot. Other project components include landscape enhancements with entry plaza and rear patio, two elevators, monumental stair, high efficiency RTU's, glazed curtain wall, masonry façade and various accent materials. The structural envelope will be designed to 140 mph 3 second gust criteria for wind loads. The project is currently approaching 30% "schematic design" stage under contract with PGAL Architects. A Mandatory Pre-Proposal Meeting will be held at the City of Pearland, City Hall Annex, 3523 Liberty Drive., Pearland, Texas in the Houston Conference Room at 10:30 a.m. on Thursday, August 15, 2019. Attendance at this meeting is a mandatory requirement for a proposal to be submitted for this project. COPIES OF PROPOSAL DOCUMENTS Electronic copies of this Request for Proposals can be downloaded from the City's E-Bid system at https://pearland.ionwave.net by clicking on "Supplier Registration". This RFP is available for download upon approval of that registration from this web-site. Once approved, registration provides automatic access to the RFP, existing project information, any changes to the RFP, and any changes to the submission time and date. Submitting firms accept sole responsibility for downloading all of the required documents for responding to the RFP. Proposals shall be submitted in the format described in this RFP and through the E-bid System. If, for any reason, you are unable to complete the submittal package electronically, you may submit a hard-copy of your Proposal to the address to City Secretary's Office, as noted above. Questions regarding electronic submission of the Response to the RFP should be directed to the City at: ebids@pearlandtx.gov Responses to this RFP shall be submitted via the City's E-bid System. Sealed Proposals shall be clearly marked with the RFP Number and title and addressed to the City of Pearland—Purchasing Department. Proposals shall be delivered through the City's E-Bid system. Interested parties must register with the City's Purchasing Department in order to download all required documents. If, for any reason, you are unable to complete the submittal package electronically, you may submit a hard-copy of your Proposal to the address listed below. Such submittals shall be placed in a sealed envelope and signed by a person having the authority to bind the firm in a contract and should be marked clearly with; City of Pearland Office of the City Secretary 3523 Liberty Drive, Pearland, TX 77581 "Response to: RFP #RFP 0519-40, A Five (5)percent bid security is required and shall be based on the total of Pre-Construction Services Only Responses are Due, Thursday, August 29, 2019 at or before 2:00PM All information contained in the submitted responses and transmitted in follow-on interviews, if any, will remain confidential. Any inquiries regarding the project or RFQ, not related to the E-bid System, must be submitted in writing to ebidsna,pearlandtx.gov NOTE: By submission of your Statement of Qualifications and Proposal in response to this announcement, you are certifying that neither your firm nor any of its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or excluded from participation in this procurement process by any Federal department or agency. Further, if such a debarment or suspension occurs during the course of the procurement, you shall immediately inform the City of Pearland. NOTE: No submitting firm shall, directly or indirectly, engage in any conduct (other than the submission of the Proposal or other prescribed submissions and/or presentations before the Consultant Selection Committees) to influence any employee or elected official of the City of Pearland concerning award of a contract as a result of this solicitation. Violation of this prohibition may result in disqualification of the firm from further participation in the solicitation for services or goods sought herein, or from participation in future City of Pearland solicitations or contracts. NOTE: Facsimile and/or email transmittals will not be accepted as valid submittals. NOTE: Title VI Nondiscrimination: The City, in accordance with Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U.S.C. 2000d to 2000d-4 and Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-Assisted programs of the Department of Transportation issued pursuant to such Act, hereby notifies all responders that it will affirmatively insure that in any contract entered into pursuant to this advertisement, minority business enterprises will be afforded full opportunity to submit qualifications in response to this invitation and will not be discriminated against on the grounds of race, color, or national origin in consideration for an award. END ADVERTISEMENT 2.0 SCHEDULE OF IMPORTANT DATES The tentative schedule for this Request for Proposal is as follows: First Advertisement Date: August 7, 2019 Second Advertisement Date: August 14, 2019 Mandatory Pre-Proposal Meeting Date: August 15, 2019 Deadline for Questions and Inquiries: August 20, 2019 at 2:00 p.m. Proposal Submission Deadline: August 29, 2019 at 2:00 p.m. Contract Evaluations/Notifications: September 16, 2019-September 23, 2019 Earliest Award by City: October 25, 2019 3.0 DEFINITION OF TERMS In order to simplify the language throughout this Request for Proposals, the following definitions and those defined in the Contract Documents shall apply throughout: OFFEROR- A contractor who submits a Proposal directly to the City. PROPOSAL/CONTRACT DOCUMENTS - the Advertisement, Instructions to Offerors, the Proposal, Special Provisions, Technical Specifications and the proposed Contract Documents (including all Addenda issued prior to the receipt of Proposals). CITY OF PEARLAND—Same as "The City" of"City" and"Owner". CITY COUNCIL — The elected officials of the City of Pearland, Texas given the authority to exercise such powers and jurisdiction of all City business as conferred by the State Constitution and Laws. CONTRACT — An agreement between the City and a Supplier to furnish materials, labor, equipment, management and/or services over a designated period of time during which repeated purchases are made of the commodity specified. CONTRACTOR — The successful Offeror and Construction Manager at Risk of this request for proposal. NO-CONTACT PERIOD — The period of time from the date a Request for Proposals (RFP) is issued until a contract is executed. If the City withdraws the RFP or rejects all proposals with the stated intention to reissue the same or a similar RFP for the same or similar project, the no-contact period continues during the time period between the withdrawal and reissue. GUARANTEED MAXIMUM PRICE (GMP) — A guaranteed maximum price (also known as GMP, not-to-exceed price, NTE) contract is a cost-type contract (also known as an open-book contract) where the contractor is compensated for actual costs incurred plus a fixed fee subject to a ceiling price. SUB-CONTRACTOR— Any contractor hired by the Contractor or Supplier to furnish materials and services specified in this request for proposal. SELECTED OFFEROR - the most qualified, responsible and responsive Offeror providing the best value to the City(on the basis of the City's evaluation as hereinafter provided) and to whom the City makes an award. SUPPLIER—Same as Contractor. 4.0 GENERAL In accordance with Texas Government Code, Chapter 2269.253, the City will select a Construction Manager At Risk (CMAR) for the construction of SHADOW CREEK LIBRARY through this RFP process. This will be a one-step process as provided for in Texas Government Code, Chapter 2269.253. Pre-construction services during the design phase will include budgeting, cost estimating services, building modeling, drawing review, code review, and review of materials and labor practices. The architect for this project is PGAL. The selected Construction Manager will be expected to provide assistance, in addition to the above mentioned pre-construction services, to the Owner and the Architect with the selection of building systems and materials, means and methods, cost estimating and budgeting throughout the project, value engineering, building modeling throughout the project and scheduling so as to enable Owner to build the Project as described and depicted in the drawings and specifications, for an amount not to exceed Owners construction and project budgets, and to build the Project thereafter as a Construction Manager-at- Risk for a Guaranteed Maximum Price (GMP) that is less than or equal to Owner's construction budget. 5.0 SCOPE OF WORK Provide Construction Manager at Risk services as defined in 2269.253 of the Texas Government Code for The City of Pearland Shadow Creek Library facility, located at 11801 Shadow Creek Parkway, approximately 500 feet west of Kirby Drive, Pearland, Texas 77584. Such services will include: 5.1 Pre-Construction Services 5.1.1 Regularly attend meeting(s) with the City and Architect prior to construction and consult with the City and the Architect regarding site use and improvements and selection of building materials, systems, and equipment. Prior to construction, make recommendations to the Architect and the City on: a. Construction feasibility b. Time requirements for procurement, installation and construction completion c. Construction costs including estimates of alternate designs or methodologies, materials, preliminary budgets and possible economies of schedule and budget. 5.1.2 Prepare and periodically update a project schedule for the Architect's review and the City's approval. Obtain Architect's approval for that portion of the schedule related to the performance of the Architect's services. Coordinate the schedule with the services and activities of the City and the Architect. Indicate activity sequences and durations, milestone dates for receipt and approval of pertinent information, preparation and processing of shop drawings and samples, delivery of materials or equipment requiring long lead time procurement, and proposed date of Substantial Completion. If the project schedule updates indicate that previous schedules cannot be met, make appropriate recommendations to the City and the Architect. 5.1.3 Review plans and schedules for phased construction and make recommendations to the City and the Architect regarding the phased issuance of the Drawings and Specifications prepared by the Architect to facilitate phased constructions where such phasing is appropriate. 5.1.4 Prepare a preliminary cost estimate utilizing area, volume, or similar conceptual and customary estimating techniques using schematic and preliminary documents prepared by the Architect. At the end of the Architect's Design Development Phase, prepare a detailed estimate with supporting data for review by the Architect and approval by the City. Update and refine this estimate on the following schedule: a. At 90% schematic design b. At 60% and 100%Design Development c. At 50 and 90% Construction Documents (see 5.1.2) 5.1.5 Such estimates shall be based on written proposals from qualified sub- contractors solicited under competitive conditions and open book to the Owner and Architect. 5.1.6 Recommend to the City and the Architect a schedule for procurement of long lead time items which will constitute part of the Work as required to meet the Project schedule. 5.1.1 Pricing Services 5.1.2 When the Drawing and Specifications are sufficiently complete,but no later than 90%Construction Documents,propose a Guaranteed Maximum Price (GMP—the sum of the Construction Manager at Risk fee, and the Cost of the Work), a written basis on which the GMP is based (including a list of Drawings and Specifications, assumptions and clarifications,and allowances),and a Construction Schedule(including date for issuing proposals from trade contractors and subcontractors, date to submit cost of the Work to the City, date for Notice to Proceed, and date for Substantial Completion). a. Include in the GMP costs for any portion of the work for which trade contracts or subcontracts have already been executed including those for phased work or procurement of long lead time items. b. Include in the GMP a 5% (five percent) Owner Contingency for the sole use of the Owner. c. Meet with the City and the Architect to review the GMP and make adjustments for any inaccuracy or inconsistency that may be discovered by the City or the Architect. 5.1.3 Once the GMP has been accepted by the City, the Construction Manager at Risk guarantees that the actual sum of the Construction Manager at Risk fee and the Cost of the Work will not exceed the GMP, subject to additions in the Contract Documents. Costs which would exceed the GMP shall be paid by the Construction Manager at Risk without reimbursement from the City. 5.1.4 If costs are below the GMP,the savings will be returned to the City. 5.1.5 Publicly advertise and receive proposals from trade contractors or subcontractors for performance of all major elements of the Work other than the minor work that may be included in General Conditions (as defined by Chapter 2269 of the Texas Government Code) as required by the Drawings and Specifications prepared by the Architect. Advertisement, receipt, review and final selection of proposals must comply with the applicable requirements of Section 271.025 and Section 271.118 of the Texas Local Government Code. 5.1.6 Construction Services 5.1.7 Following approval from the City of trade contracts and subcontracts, and upon receiving a Notice to Proceed with Construction from the City, the Construction Manager at Risk will administer, manage and supervise the construction of the Work, providing a complete project conforming to the Drawings and Specifications prepared by the Architect. 5.1.8 Prepare a detailed construction schedule and update this schedule at regular intervals with monthly payment applications. 5.1.9 Prepare and maintain a Cost Savings Log resulting from savings achieved as a result of actual cost for the work installed and completed below estimated costs. 5.1.10 Prepare detailed log of requested additional work items Additional Work Request Log) Prepare cost estimates for each individual requested additional work item with updates as necessary. 5.1.11 Schedule regular meetings with the City, Architect and appropriate consultants,trade contractors and subcontractors to review the status of the Work. 5.1.12 Review submittals, shop drawings, samples and project data in accordance with contract requirements. 5.1.13 Provide regular written reports to the City and Architect on the progress of the entire Work. Maintain a daily log containing a record of weather,trade contractors and subcontractors working on the site, number of workers, Work accomplished,problems encountered, critical path activities affected, and other similar relevant data as the City may reasonably require. Submit this log to the City and the Architect. 5.1.14 Develop a system for cost controls for the Work including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes. Identify variances between actual and estimated costs and report the variances to the City and the Architect. 5.1.15 Upon Owner's request or on a monthly basis, review the Cost Savings Log versus the Additional Work Request log with the Owner and Architect for possible inclusion of Additional Work items into the project as may be funded through identified savings. 5.1.16 Selection of Trade Contractors and Subcontractors 5.1.17 Trade Contractors and Subcontractors—The CMAR shall publicly advertise and solicit either competitive bids or competitive sealed proposals from trade contractors or subcontractors for the performance of all major elements of the Work other than the minor work that may be included in General Conditions. a. A 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 or subcontractors and if the City determines that the CMAR's bid proposal provides the best value for the City. b. Submits its bid or proposal for those portions of the work in the same manner as all other trade contractors or subcontractors and if the City determines that the CMAR's bid proposal provides the best value for the City. 5.1.18 Receipt of Bid or Proposals — The CMAR and the City shall receive and open all trade contractor or subcontractor bids or proposals in a manner that does not disclose the contents of the bid or proposal during the selection process. The City will document the basis of its selection and make evaluations public not later than the 7th day after the contract is awarded, as required by law. 5.1.19 Acceptance of Recommendations for Trade Contractors and Subcontractors If the CMAR reviews, evaluates and recommends to the City a bid or proposal from a trade contractor or subcontractor, but the City requires a bid or proposal from another trade contractor or subcontractor to be accepted, then, pursuant to the terms of the Contract, the City shall compensate the CMAR by a change in contract sum, contract time or guaranteed maximum price for any additional cost and risk,which has been demonstrated to the City's satisfaction and as required by the Contract, that the CMAR may incur because of the City's requirement that another trade contractor or subcontractor bid or proposal be accepted. 6.0 ESTIMATED BUDGET The City has established $16,600,000.00_as the estimated construction budget for all the Work including alternates as described in the Drawings, Technical Specifications, and other Contract Documents prepared by the A/E. 7.0 COPIES OF PROPOSAL/CONTRACT DOCUMENTS A complete set of Proposal/Contract Documents can be downloaded off of the City's E-Bid System at https://pearland.ionwave.net. Complete sets of Proposal/Contract Documents must be used in preparing Proposals; the City assumes no responsibility for errors or misinterpretations resulting from the use of incomplete sets of Contract Documents. The City, in making the copies of the Proposal/Contract Documents available on the above terms, does so only for the purpose of obtaining Proposals on the work and does not confer a license or grant for any other use. 8.0 ORAL PRESENTATION/INTERVIEWS By submitting a response to this RFP the Offeror may be required to give an oral presentation of their proposal. Additional technical and/or cost information may be requested for clarification purposes, but in no way change the original proposal submitted. Interviews are optional and may or may not be conducted. If an interview is conducted, it is essential that the Respondent's personnel to be assigned to the work, as well as key representatives, be present at and participates in the interview. 9.0 QUALIFICATIONS OF OFFERORS To demonstrate qualifications to perform the Work, each Offeror must submit all required documentation at the City's request, including, but not limited to financial data, previous experience, associate management personnel, current financial and work commitments and other such data as may be called for in this request for proposal. Each Proposal must contain evidence of the Offeror's qualifications to do business in the State of Texas or covenant to obtain such qualification prior to award of the contract. In determining an Offeror's qualifications, the factors set forth in paragraph 27.0, "Evaluations Process", shall be considered. Each Offeror may be required to show proper completion of similar type work and that no claims are pending against such work. No Proposal will be accepted from any offer or engaged in any work that would impair their ability to fully execute,perform or finance this work. 10.1 PREPARATION OF PROPOSAL All forms and requested information must be filled out and submitted with the Proposal for consideration. Failure to include completed information as requested may result in the rejection of the Proposal. Forms to be included are: a. Construction Manager Experience &Qualifications b. Construction Manager Key Personnel c. Construction Manager References d. Construction Manager Current Work Schedule/Record e. Construction Manager Litigation, Claims, Reputation&Compliance f. Construction Manager Safety Record g. Construction Manager Quality Control Program h. Construction Manager Financial Resources i. Construction Manager Proposal j. Construction Manager Cost Reduction Suggestions k. Construction Manager Certification If the Form(s) do not provide sufficient space to adequately respond to a question, the Offeror should attach additional sheets as necessary, referencing the page and question numbers to which the response pertains. A Proposal showing omissions, alterations, conditions, exceptions or other qualifiers which modify the Proposal Form(s) may be rejected as irregular. 11.1 GENERAL PROVISIONS a. This Request for Proposal as advertised will be considered an inclusion of the specifications and conditions. b. The term "Owner" as used throughout these documents will mean The City of Pearland, Texas. This term is used interchangeable with "City", "the City" and "Pearland". c. Proposals will be submitted on the forms provided by Owner. All figures must be written in ink or typewritten. However, mistakes may be crossed out, corrections inserted adjacent thereto and initiated in ink by the person signing the proposal. d. Formal advertised proposals indicate date and time by which the proposals must be received by the City's Purchasing Department. Proposals received after that time will be returned unopened to the Offeror. e. The Offeror will note any exceptions to the conditions of this request for proposal. If no exceptions are stated, it will be understood that all general and specific conditions will be complied with, without exception. Although the RFP documents clearly state that No Exceptions will be accepted, and any exceptions submitted may be grounds for rejection; City reserves the right to accept any Exception if it is determined, at the City's sole discretion, to be in the City's best interests. f. Offerors may request withdrawal of a posted proposal prior to the scheduled opening time, provided the request for withdrawal is submitted to the Purchasing Department in writing. Owner reserves the right to reject any or all proposals or to accept any proposal judged to be in the City's best interests. g. In the event there are inconsistencies between the general provisions and other terms or conditions contained herein, the former will take precedence. h. If it becomes necessary to revise any part of this request for proposal, a written addendum will be provided to all offerors. All such communications shall be conveyed via the City's E-Bid system and will include the Addenda as required. Owner is not bound by any oral representations, clarifications, or changes made in the written specifications by Owner's employees, unless such clarification of change is provided to offerors in written addendum form from the Purchasing Department. i. All contracts will be awarded to the offeror that offers the best value for the City based on the published selection criteria contained herein. j. Offerors may be disqualified and rejection of proposals may be recommended to the Owner for any (but not limited to) of the following causes: 1) Failure to use the proposal form furnished by the Owner; 2) Lack of signature by an authorized representative on the proposal form; 3) Failure to properly complete the proposal; 4) Evidence of collusion among proposers; 5) Omission of uncertified personal or company check as a proposal guarantee (if Bid Bond required); 6) Unauthorized alteration of form provided; 7) Lack of appropriate qualifications and experience relative to the size and scope of the work proposed; 8)Unsatisfactory performance; or 9) Failure to complete projects; or 10) Owner reserved the right to waive any minor informality or irregularity. k. Whenever in this invitation, any particular materials, process and/or equipment are indicated or specified by patent, proprietary or brand name, or by name of manufacture, such wording will be deemed to be used for the purpose of facilitating description of the material,process and/or equipment desired and will be deemed to be followed by the words "or equal." Use of such trade names is intended to establish a specific quality or type of material or equipment to assist the Offeror in pricing the project. Offeror shall not assume that material and equipment is "equal" to those items listed in the RFP documents, therefore all substitutions of equipment and materials shall be submitted for approval by the Architect prior to installation. Substitutions made without prior approval of the Owner's Representative shall be at the risk of the Offeror. 1. Samples of items shall be furnished, if requested by the Owner, without charge, and if not destroyed, shall be returned upon request at the offeror's expense. m. It is agreed that the successful offeror will not assign, transfer, convey or otherwise dispose of the contract or its right, title or interest in or to the same, or any part thereof, without previous written consent of Owner and any sureties. n. Construction Manager must provide audited financial statements to the City. o. Prices should be itemized to match the break-out required by the Proposal Documents. Unit prices shall be set to no more than four (4) decimal places. The Owner reserves the right to award by item or by total bid. If there are discrepancies between unit prices and extension, the unit price will prevail. p. When an original and copies are required, if there are discrepancies between the original proposal and copies,the original proposal will prevail. q. No freight, delivery or special handling charges will be accepted unless shown on proposal. r. Discounts for prompt payment offered may be taken into consideration during evaluation of proposals. Terms of payment offered will be reflected in the space provided on the proposal form. All terms of payment (cash discounts) will be taken and computed from the date of delivery of acceptable material or services, or the date of receipt of invoice, whichever is later. s. Owner is exempt from State Retail Tax and Federal Excise Tax. The price proposed must be net, exclusive of taxes. t. All offerors will comply with all Federal, State, and local laws relative to conducting business in the City of Pearland. The laws of the State of Texas will govern as to the interpretation, validity, and effect of this proposal, its award and any contract entered into. u. The successful offeror agrees by entering into this contract,to defend, indemnify and hold Owner harmless from any and all causes of action or claims of damages arising out of or related to offeror's performance under this contract. v. Advanced disclosures of any information to any particular offeror which gives that particular offeror any advantage over any other interested offeror in advance of the opening of proposal, whether in response to advertising or an informal request for proposal, made or permitted by a member of the governing body or an employee or representative thereof, will operate to void all proposals of that particular solicitation or request. w. Minority business enterprises will be afforded full opportunity to submit proposals in response to this invitation and will not be discriminated against on the grounds of race, color, creed, sex, or national origin in consideration for an award. x. If unable to submit a proposal, please sign and return this form by return mail, advising reason for not submitting. 12.1 OFFEROR CONDUCT To ensure a fair, equitable and competitive proposal process for all participating Offerors, during the No-Contact Period Offerors and individual(s) acting on an Offeror's behalf are prohibited from communicating with any City official, City employee or City agent other than the authorized contact person(s) in the Purchasing Division. This prohibition expressly includes any communication with any City Official, City employee or City agent that is intended to or that is reasonably likely to: a) advance the interests of the Offeror; b) discredit the proposal of another Offeror; c) encourage the City to cancel the proposal process; d) encourage the City to reject all of the proposals received; or e) directly or indirectly ask, influence or persuade any City official, City employee, City agent or City board, committee or body to favor or oppose, recommend or not recommend, vote for or against, consider or not consider, or take action or refrain from taking action on any vote,decision or agenda item regarding the proposal. Offerors may be disqualified and rejection of proposal may be recommended for violating this provision. Further, Offerors violating this section may be subject to the City's Vendor Suspension and Debarment Policy. This provision shall not prevent an Offeror from making public statements to the City Council convened for a regularly scheduled session after the official selection has been made and placed on the City Council agenda for action. 13.0 EXAMINATION OF CONTRACT DOCUMENTS AND SITE A. It is the responsibility of each Offeror before submitting a Proposal, to: a. examine the Contract Documents thoroughly, b. visit the site to become familiar with local conditions that may affect cost, progress, performance or furnishing of the Work, c. consider federal, state and local Laws and Regulations that may affect cost, progress, performance or furnishing of the Work, d. study and carefully correlate Offeror's observations with the Contract Documents, and e. notify Owner's Representative of all conflicts, errors or discrepancies in the Contract Documents, f. visit with local utilities, including cable companies, and other entities that may have underground or above-ground infrastructure in the work area for infrastructure location, review the work necessary to be performed so as to coordinate all construction activities. g. The following provisions of Divisions 0000 of the City's Standard Construction Documents (available on the City's Engineering Website) shall apply to the proposed Contract for Construction Manager At Risk: 00500, Appendices A&B, 00610, 00611, 00615, 00701, 00702, 00703, 00800, and 00811 Likewise, ALL Sections of Division 00100 of the City's Standard Construction Documents shall apply to any contract for construction, if any, issued as a result of this Request for Proposals the same as if attached to this RFP. These documents are available for review and download on the City's website under the Engineering webpage. B. Information and data reflected in the Contract Documents with respect to underground facilities at or contiguous to the site is based upon information and data from the Owner's files for its underground facilities and information and data furnished by owners of other underground facilities. Owner does not assume responsibility for the accuracy or completeness thereof. C. Before submitting a Proposal each Offeror will be responsible to make or obtain such explorations, at Offerors expense (tests and data concerning physical conditions - surface, subsurface and underground facilities - at or contiguous to the site, or otherwise) which may affect cost, progress, performance or furnishing of the Work and which Offeror deems necessary to determine its Proposal for performing and furnishing the Work in accordance with the time, price and other terms and conditions of the Contract Documents. D. On request in advance, Owner will provide each Offeror access to the site to conduct such explorations and tests as each Offeror deems necessary for submission of a Proposal. Offeror shall fill all holes, clean up and restore the site to its former condition upon completion of such explorations. E. The lands upon which the Work is to be performed, rights-of-way and easements for access thereto and other lands designated for use by Construction Manager in performing the Work are identified in the Contract Documents. All additional lands and access thereto required for temporary construction facilities or storage of materials and equipment or disposal of spoil are to be provided by Construction Manager. Construction Manager is responsible for obtaining all permits required for any of the before mentioned purposes prior to beginning work. All such City permits for the project shall be issued at no cost to the Construction Manager. F. The submission of a Proposal will constitute an incontrovertible representation by Offeror that Offeror has complied with every requirement of this section, that without exception the Proposal is premised upon performing and furnishing the Work required by the Contract Documents and such means, methods, techniques, sequences or procedures of construction as may be indicated in or required by the Contract Documents, and that the Contract Documents are sufficient in scope and detail to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. No pleas of ignorance of conditions that may be encountered in their execution of the Work under this contract, that is a result of failure to make the necessary examinations and investigations herein above indicated, will be accepted as an excuse for the failure or omission on the part of the Construction Manager to fulfill in every detail all the requirements of the Contract Documents. In no event shall a claim for extra compensation or for an extension of time be allowed for failure to thoroughly examine all requirements of Contract Documents. 14.0 INTERPRETATIONS and ADDENDA All questions about the meaning or intent of the Contract Documents are to be directed to the City Engineering and Projects Department or the Architect. Interpretations or clarification considered necessary by Owner's Representative and/or Architect in response to such questions will be issued by Addenda and mailed or otherwise delivered to all parties recorded by Owner's Representative as having received the Proposal/Contract Documents. Questions received less than five (5) days or 120 hours prior to opening of Proposals will not be answered. Only questions answered by a formal written Addenda will be binding. No oral and other interpretations or clarification will be considered official or binding. Addenda may also be issued to modify the Proposal/Contract Documents as deemed advisable by the City. To properly qualify his Proposal, each Offeror shall, prior to submitting his Proposal, check the receipt of all Addenda or letters of clarification issued and acknowledge such receipt on the Proposal Form or on a separate attachment to the Proposal. Proposals without such acknowledgment of all issued Addenda and letters of clarification may cause your Proposal to be considered non-responsive. Such Addenda and letters of clarification shall become a part of the executed contract and modify the contract documents accordingly. 15.0 SECURITY Offerors must submit with their Proposal Bid Bond, a Cashier's Check or a Certified Check in the amount of five (5%) percent of the proposed Pre-Construction Fees made payable without recourse to the City of Pearland, Texas, or a bid bond ("Bid Security") in the same amount from a surety company holding permit from the State of Texas to act as a surety, as a guarantee that Offeror will enter into a contract and execute bond and guarantee forms within ten (10) days after notice of award and execution of the contract. Proposals without checks or acceptable Bid Security, as stated herein, will not be considered. Subject to Section 31 herein, the Bid Security shall be in effect from the opening of the Proposal and will be retained until an Offeror has executed the Construction Agreement and furnished the required contract security, whereupon the Bid Security shall be returned. All Proposals are irrevocable and cannot be withdrawn for ninety (90) day calendars following the date scheduled for the opening of the Proposals. If the Successful Offeror fails to execute and deliver the Construction Agreement and furnish the required contract security within fifteen (15) days after the Notice of Award, Owner may annul the Notice of Award and the Bid Security of that Offeror will be forfeited. The Bid Security of other Offerors whom Owner believes to have a reasonable chance of receiving the award may be retained by Owner until 5 days after a Construction Agreement is executed whereupon any Bid Security furnished by such Offerors shall be returned. Any Bid Security with Proposals which are not competitive will be returned within seven days after the Proposal opening. 16.0 CONTRACT TIME The times for Substantial Completion and Final Completion are set forth in the Construction Agreement. It will be necessary for the Successful Offeror to satisfy the City of Pearland's completion schedule. Offeror's ability to achieve Substantial Completion and Final Completion within the times designated in the Special Provisions shall be acknowledged in the proposal. 17.0 LIQUIDATED DAMAGES TIME IS OF THE ESSENCE IN THIS CONTRACT. Failure to meet Substantial or Final Completion dates will result in damages to the City in the amount specified in Section 10.10 of the Standard Form of Construction Agreement 18.0 SUBSTITUTE OR "OR EQUAL" ITEMS The materials and equipment described in the Proposal/Contract Documents establish a standard of required function, dimension, appearance and quality to be met by any proposed substitution. No substitution of materials and equipment shall be considered unless written request for approval has been submitted by the Offeror and has been approved by Owner's Representative. Any material or equipment substitution made by the Contractor or subcontractor is at their risk. Requests for approval of proposed substitute materials/ equipment shall include the name of the material or equipment for which it is to be substituted and a complete description of the proposed substitute including drawings, cuts, performance and test data and any other information necessary for an evaluation. A statement setting forth any changes in other materials, equipment or work that incorporation of the substitute would require shall be included. If proposed substitution requires a re-design, Proposer shall pay all re-design fees as a component of the substitution. The burden of proof of the merit of the proposed substitute is upon the Offeror. The Owner's Representative's decision of approval or disapproval of a proposed substitution shall be fmal. If Owner's Representative approves any proposed substitution before the date for receipt of Proposals, such approval will be set forth in an Addendum issued to all prospective Offerors. Offerors shall not rely upon approvals made in any other manner. Any substitutions submitted after award of the Project shall be made in accordance with the requirements of the Construction Agreement. 19.0 PROPOSAL FORM The Proposal Form(s) are included with the Construction Documents. All blanks on the Proposal Form(s) must be completed in ink or by typewriter. Unfilled blanks may result in the Proposal being disqualified. Proposals by corporations must be executed in the corporate name by the corporate officer authorized to sign for the corporation, accompanied by evidence of authority to sign. The corporate address and state of incorporation must be shown below the signature. Proposals by partnerships must be executed in the partnership name and signed by a partner,whose title must appear under the signature and accompanied by evidence of authority to sign. The fiscal address of the partnership must be shown below the signature. All names must be typed or printed below the signature. The Proposal shall contain an acknowledgment of receipt of all Addenda. The numbers and dates of which must be filled in on the Proposal Form or on a separate attachment to the Proposal. The address and telephone number(s) for communication regarding the Proposal must be shown. All of the data on the FORM(S) must be completely filled in. 20.0 SUBMISSION OF PROPOSALS All required documents and form(s) shall be submitted electronically to https://pearland.ionwave.net by the time and place indicated in the Advertisement. If the Offeror chooses to issue a "No Response" to a question on the Proposal, an explanation of this action is required. Failure to do so may be viewed by the City as an incomplete response and may subject the entire Proposal to rejection. The Proposal shall be accompanied by the Bid Security and other required documents. If the Proposal is sent through the mail or other delivery system the sealed envelope shall be enclosed in a separate envelope with the notation "PROPOSAL ENCLOSED"on the face of it. Each Offeror should, prior to submitting his Proposal check the receipt of all Addenda or letters of clarification issued and acknowledge such receipt on the outside of the envelope containing his Proposal. 21.0 REIMBURSEMENTS There is no expressed or implied obligation for the City to reimburse Offerors for any expenses incurred in preparing Proposals in response to this Request for Proposal and the City will not reimburse responding Offerors for these expenses, nor will the City pay any subsequent costs associated with the provision of any additional information or presentation, or to procure a contract for these services. 22.0 MODIFICATION AND WITHDRAWAL OF PROPOSALS Proposals may be modified or withdrawn by an appropriate document duly executed, in the described manner that a Proposal must be executed and delivered to the place where Proposals are to be submitted at any time prior to the opening of Proposals. 23.0 OPENING OF PROPOSALS Properly prepared Proposals will be opened publicly and read aloud. A summary of the amounts of the base Proposal Price and major alternates (if any) will be made available and read aloud to Offerors after the opening of Proposals. All other information contained in the Proposals will not be disclosed until after the award of the contract. A tabulation of the Proposal Prices which are read will be available upon request as soon as it has been assembled and verified. Proposals received after the specified time of the opening will be returned unopened. 24.0 PUBLIC INFORMATION AND NOTICE OF CONFIDENTIALITY The City considers all Proposal information, documentation and supporting materials submitted in response to this Request for Proposal to be non-confidential and/or non-proprietary in nature, and therefore, shall be subject to public disclosure under the Texas Public Information Act (Texas Government Code, Sec. 552.001, et seq.) after the award of the contract. Except for trade secrets and confidential information which the Offeror identifies as proprietary, all Proposals will be open for public inspection after the contract award. 25.0 OWNERSHIP OF THE PROPOSAL Submitted Proposals, documentation and supporting materials shall become the property of the City. 26.0 PROPOSALS TO REMAIN SUBJECT TO ACCEPTANCE All Proposals will remain subject to acceptance, for 90 days after the date of the opening, but Owner may, in its sole discretion, release any Proposal and return the Bid Security prior to that date. However,not later than forty-five(45) days after the opening of the proposals, the City shall evaluate and rank each proposal submitted in relation to the published selection criteria. 27.0 EVALUATION PROCESS Proposals will be opened publicly to identify the names of the Offerors. Other contents of the Proposals will not be disclosed prior to award or rejection by City Council. Proposals will be evaluated by the City in consultation with the Architect. Evaluations rating will be on a 100 point scale and those Offerors selected for a short list may be invited to attend an interview, at the Offerors own expense. Any invitation for an oral presentation will be solely for the purpose of clarifying proposals received from each qualifying Offeror, and will not represent any decision on the part of the evaluation committee as to the selection of successful Offeror. The Offeror understands and agrees that if a contract is awarded, it will be awarded to the Offeror submitting the BEST VALUE to the City as determined solely by the City. The City is not bound to accept the lowest priced Proposal if that Proposal is judged not to be the best value for the City. The weighted criteria for evaluation and selection of the successful Offeror for this award will be based upon the factors listed below: a. Project Staff Experience and Qualifications 25% b. Contractor Experience and Qualifications 25% c. Project Management Approach and Approach to Quality Control 15% d. Contractor Safety Program and Record 10% e. Proposed Fees and Construction time 25% After opening the Proposals and within forty-five (45) days of the opening, the City will evaluate and rank each Proposal with respect to the published selection criteria described under this Section. After opening and ranking, an award may be made on the basis of the initially submitted Proposal, without discussion, clarification, or modification, or the Owner may discuss with the selected offeror, scope, schedule, costs and fees of the Proposal. Other than the data read at the public opening, the City shall not disclose any information derived from the Proposals submitted by competing Offerors in conducting such discussions. If the City determines that it is unable to reach a satisfactory agreement with the highest ranked Offeror,the City will formally, and in writing,terminate discussions with that Offeror and proceed to the next Offeror in the order of the selection ranking until a contract can be negotiated or all Proposals are rejected. 28.0 AWARD OF CONTRACT Owner reserves the right to reject any and all Proposals, to waive any and all informalities and irregularities and the right to disregard all non-conforming, non-responsive, unbalanced or conditional Proposals and to negotiate contract terms with the Selected Offeror. Also, Owner reserves the right to reject the Proposal of any Offeror if Owner believes that it would not be in the best interest of the Project to make an award to that Offeror, whether because the Proposal is not responsive or the Offeror is unqualified or of doubtful financial ability or fails to meet any other pertinent standard or criteria established by Owner. Discrepancies in the multiplication of units of Work and unit prices will be resolved in favor of the unit prices. Discrepancies between the indicated sum of any column of figures and the correct sum thereof will be resolved in favor of the correct sum. In evaluating Proposals, Owner will consider the qualifications of the Offerors, whether or not the Proposals comply with the prescribed requirements, time of construction, and such alternates, cost of work or unit prices and other data, as may be requested in the Proposal Form or prior to the Notice of Award. Owner may consider the qualifications and experience of subcontractors, suppliers, and other persons and organizations proposed for those portions of the Work as to which the identity of subcontractors, suppliers, and other persons and organizations must be submitted as provided. Owner may also consider the operating costs, maintenance requirements, performance data and guarantees of major items of materials and equipment proposed for incorporation in the Work when such data is required to be submitted prior to the Notice of Award. Owner may conduct such investigations as Owner deems necessary to assist in the evaluation of any Proposal and to establish the responsibility, qualifications and fmancial ability of Offerors, proposed subcontractors, suppliers and other persons and organizations to perform and furnish the Work in accordance with the Contract Documents to Owner's satisfaction within the prescribed time. If the contract is to be awarded, it will be awarded to the Offeror whose evaluation by Owner determines that the award will provide the best value to the City, taking into consideration the relative importance of price and other weighted factors set forth in this Request for Proposal. If the contract is to be awarded, Owner will give the Successful Offeror a Notice of Intent to Award within 90 days after the day of the Proposal opening, subject to mutually agreed extensions of this period. 29.0 CONSTRUCTION AGREEMENT This Request for Proposal anticipates the use of the City's standard CONSTRUCTION AGREEMENT for CONSTRUCTION MANAGER AT RISK and other applicable required documentation. This document is available for review on the City's Engineering and Capital Projects webpage/ Engineering Division/ Standard Construction Documents. A statement of willingness to utilize the City's Standard Form Construction Agreement and other applicable terms and conditions shall be provided. The Offeror should review all applicable agreements, terms and conditions thoroughly. Contractors who are not willing to sign the applicable agreement without modification need not submit. 30.0 CONTRACT SECURITY The Selected Offeror shall submit a Performance Bond and a Payment Bond in accordance with the Construction Agreement. 31.0 SIGNING OF AGREEMENT The Successful Offeror shall execute the Standard Form Construction Agreement and provide proof of all required insurance prior to Council action. Within 10 days following full execution of the Standard Form of Construction Agreement by all parties, Offeror shall deliver the required payment and performance bonds to Owner in the sum of the Guaranteed Maximum Price, except that if a Guaranteed maximum Price is not established by that time, the Offeror may furnish a bid bond, acceptable to Owner, securing that Offeror will furnish the performance and payment bonds within seven(7) days after the Guaranteed Maximum Price is established. 32.0 MANDATORY PRE-PROPOSAL CONFERENCE A MANDATORY Pre-proposal Conference will be held at the City of Pearland City Hall, Pearland, Texas in the City Hall Annex, Houston Room at 10:30 a.m. on Thursday, August 15, 2019. Representatives of the Owner and Architect will be present to discuss the project. Attendance at this meeting is a mandatory requirement for a proposal to be submitted for this project. Owner's Representative will transmit to all prospective Offerors of record such Addenda as he considers necessary in response to questions arising at the conference. 33.0 DISCLOSURE OF INTERESTED PARTIES Contracting hereunder may require compliance with §2252.908 Texas Government Code/Disclosure of Interested Parties for contracts that (1) require an action or vote by the City Council before the contract may be signed; or (2) has a value of at least $1 million. The law provides that a governmental entity may not enter into certain contracts with a business entity unless the business entity submits a disclosure of interested parties to the governmental entity at the time the business entity submits the signed contract to the governmental entity or state agency. For purposes of this section, the following definitions apply: "Interested party" means a person who has a controlling interest in a business entity with whom the City contracts or who actively participates in facilitating the contract or negotiating the terms of the contract, including a broker intermediary, advisor, or attorney for the business entity. "Controlling interest" means: (1) an ownership interest or participating interest in a business entity by virtue of units, percentage, shares, stock, or otherwise that exceeds 10 percent; (2) membership on the board of directors or other governing body of a business entity of which the board or other governing body is composed of not more than 10 members; or (3) service as an officer of a business entity that has four or fewer officers, or service as one of the four officers most highly compensated by a business entity that has more than four officers. "Intermediary," means a person who actively participates in the facilitation of the contract or negotiating the contract, including a broker, adviser, attorney, or representative of or agent for the business entity who: 1. Receives compensation from the business entity for the person's participation; 2. Communicates directly with the City on behalf of the business entity regarding the contract; and 3. Is not an employee of the business entity The process as implemented by the Texas Ethics Commission("TEC") is as follows: 1. The disclosure of interested parties must be performed using the Texas Ethics Commission's electronic filing application listing each interested party of which the business entity is aware on Form 1295,obtaining a certification of filing number for this form from the TEC, and printing a copy of it to submit to the City. 2. The copy of Form 1295 submitted to the City must be notarized and contain the unique certification number from the TEC. The form must be filed with the City pursuant to §2252.908 Texas Government Code, "at the time the business entity submits the signed contract"to the City. The City, in turn, will submit a copy of the disclosure form to the TEC not later than the 30th day after the date the City receives the disclosure of interested parties from the business entity. CONSTRUCTION AGREEMENT CONSTRUCTION MANAGER AT RISK TABLE OF CONTENTS 1. General Provisions 1.1 Relationship of the Parties 1.2 General Conditions 1.3 Contract Documents 1.4 Owner 1.5 Contractor 1.6 Administration of the Contract 1.7 Subcontractors 1.8 Construction by Owner or by Separate Contractor 1.9 Changes in the Work 1.10 Prosecution and Progress 1.11 Payments and Completion 1.12 Protection of Persons and Property 1.13 Insurance and Bonds 1.14 Uncovering and Correction of Work 1.15 Miscellaneous Provisions 1.16 Termination or Suspension of the Contract 2. Construction Manager's Responsibilities 2.1 Preconstruction Phase 2.2 Guaranteed Maximum Price Proposal 2.3 Construction Phase 3. Owners Responsibilities 3.1 Information and Services 3.2 Owner's Designated Representatives 3.3 Architect 4. Compensation and Payments for Preconstruction Services 4.1 Compensation 4.2 Payments 5. Compensation for Construction Phase Services 5.1 Compensation 5.2 Guaranteed Maximum Price 5.3 Changes in the Work 6. Cost of the Work for Construction Phase 6.1 Costs to be Reimbursed 6.2 Costs Not to be Reimbursed 6.3 Discounts,Rebates and Refunds 6.4 Accounting Records 7. Construction Phase 7.1 Progress Payments 7.2 Final Payment 8. Miscellaneous Provisions 9. Termination or Suspension 9.1 Termination Prior to Establishing Guaranteed Maximum Price 9.2 Termination Subsequent to Establishing Guaranteed Maximum Price 10. Other Conditions and Services CITY OF PEARLAND STANDARD FORM OF AGREEMENT BETWEEN CITY AND CONSTRUCTION MANAGER AT RISK This Agreement is entered into by and between the City of Pearland, a Texas home-rule municipal corporation (the "City") and a Texas corporation (the "Construction Manager"or Contractor") for the construction of City of Pearland, Shadow Creek Ranch Library. SECTION 1. GENERAL PROVISIONS 1.1 Relationship of the Parties. 1.1.1 The Construction Manager accepts the relationship of trust and confidence established with the City by this Agreement, and covenants with the City to furnish the Construction Manager's reasonable skill and judgment and to cooperate with the Architect in furthering the interests of the City. The Construction Manager shall furnish construction administration and management services and use the Construction Manager's best efforts to perform the Project in an expeditious and economical manner consistent with the interests of the City. The City shall endeavor to promote harmony and cooperation among the City, Architect, Construction Manager and other persons or entities employed by the City for the Project. 1.2 General Conditions. 1.2.1 Basic Definitions. 1.2.1.1 Addenda. Addenda are written or graphic instruments issued prior to the execution of the Contract, which modify or interpret the proposal documents, including Drawings and Specifications, by additions, deletion, clarification or corrections. Addenda will become part of the Contract Documents when the Agreement is executed. 1.2.1.2 Approved, Approved Equal and Approved Equivalent, or Equal relate to the substitution of materials, equipment or procedure approved in writing by the Architect prior to receipt of proposals. The substitution procedure process to be followed prior to receipt of competitive sealed proposals is described in the instruction to proposers. 1.2.1.3 Calendar Day. A "calendar day" is any day of the week or Month or year,no days being excepted. Unless otherwise expressly provided, all references to "day(s)" shall mean Calendar Day(s). 1.2.1.4 City / City Representative. Whenever the word "City" is used, it shall mean and be understood as referring to the City of Pearland, Texas. The word "Owner" shall refer to the same entity and may be used interchangeably. Whenever the words "City's Representative" or "Representative" are used, it shall mean and be understood as referring to the City Project Manager or his delegate, who shall act as the City's agent. The City's Representative may inspect and issue instructions but shall not directly supervise the Contractor. The City's inspector has authority to reject the Work for failure to comply with the Contract Documents and/or applicable laws. 3 1.2.1.5 Contract Definitions: The term "Contract Documents" shall mean those documents listed in Paragraph 1.3. The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a written Modification. The Contract Documents shall not be construed to create a contractual relationship of any kind(1)between the Architect and Contractor, (2)between the City and a Subcontractor or Sub-subcontractor,(3)between the City and Architect or(4)between any persons or entities other than the City and Contractor. The Architect shall be entitled,however, to performance and enforcement of obligations of the Contractor under the Contract intended to facilitate performance of the Architect's duties. 1.2.1.6 Contractor. Whenever the word "Contractor" is used, it shall mean the person(s), partnership, or corporation who has agreed to perform the work embraced in this Agreement and the other Contract Documents; specifically it shall mean the Construction Manager. 1.2.1.7 Contract Time. The period of time which is established in the Contract Documents for Substantial Completion of the Work. This period of time shall be accounted for in Calendar Days, as defined above, and is not subject to adjustment or extension without the written agreement of the City. The following definitions shall apply to Contract Time calculations: a. Work Day: As used herein, a "Work Day" is defined as any Monday through Friday, not a legal holiday, and any Saturday or Sunday specifically approved by the OWNER, in which the CONTRACTOR can perform six or more hours of work per the current construction schedule. CONTRACTOR agrees to request specific approval from the Construction Manager or Owner, in advance, to perform work on Saturdays or Sundays and in so doing agrees to pay all charges and costs for Inspection and or Construction Management services required during the performance of any such approved work. b. Rain Day: As used herein, is defined as any WORK DAY during which weather related conditions prevent the CONTRACTOR from performing four (4) or more consecutive hours of work on critical path items as identified in the current construction schedule. CONTRACTOR shall record Rain Days on the Pay Application each month for the review and possible approval by the OWNER. The approved Rain Day is then added to the Contract Time. c. IMPACT DAY: As used herein, is a day that is added to the CONTRACT TIME by the OWNER by Change Order to extend the Contract Time by one full Work Day. Impact Days, once approved by the OWNER, shall extend the Contract Time on a one-to-one basis to replace a Work Day lost to conditions that prevented the CONTRACTOR from performing four (4) or more consecutive hours of work on critical path items. Impact Days are added to the Contract Time by Change Order only at the end of the work and then only if, in the opinion of the OWNER, a 4 time extension is warranted due to delays beyond the control of the Contractor and required to complete the work within the Contract Time 1.2.1.8 Drawings. The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams. 1.2.1.9 Extra Work. The term "Extra Work" shall mean and include work that is not covered or contemplated by the Contract Documents but that may be required by the City's Representative and approved by the City in writing prior to the work being done by the Contractor. 1.2.1.10 Final Completion. The term "Final Completion" shall mean that all the work has been completed, all final punch list items have been inspected and satisfactorily completed, all payments to material suppliers and subcontractors have been made, all documentation and warranties have been submitted, and all closeout documents have been executed and approved by the City. 1.2.1.11 Interpretation of Phrases. Whenever the words "directed", "permitted", "designated", "required", "considered necessary", "prescribed", or words of like import are used, it is understood that the direction, requirement, permission, order, designation, or prescription of the City's Representative is intended. Similarly, the words "approved", "acceptable", "satisfactory", or words of like import shall mean approved by, accepted by, or satisfactory to the City's Representative. In the interest of brevity the Contract Documents may omit modifying words such as "all" or"any" and articles such as "the" and "an", but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. 1.2.1.12 Nonconforming work. The term "nonconforming work" shall mean work or any part thereof that is rejected by the City's Representative as not conforming with the Contract Documents. 1.2.1.13 Notice to Proceed. A notice that may be given by the Owner to the Contractor that directs the Contractor to start the Work. 1.2.1.14 Partial Substantial Completion. Designation of Partial substantial Completion may be provided on components of the Work that must be placed into service prior to the completion of the entire Work. The contractor's One Year Warranty period for these items shall begin on the date of Partial Substantial Completion as designated by the Architect. The Architect shall determine and make all such designations. 1.2.1.15 Parties. The "parties"are the City and the Contractor. 1.2.1.16 Project. The term "Project" shall mean and include all that is required to obtain a final product that is acceptable to the City. The term "work"shall have like meaning. The Project is the total construction of which the Work performed under the Contract Documents may be the whole or a part and which may include construction by the 5 City or by separate contractors. 1.2.1.17 ProTrak. As used herein describes the City's project management software used to enhance communications between the project team members. All product submittals, RFI's, RFPs, plan sheet changes, plans and specs are held and available to all team members within this web-based software. All payment applications are made and approved within the software. All team members will be given access and will use this software platform for project document transmittals. 1.2.1.18 Punch List. A comprehensive list prepared by the City prior to Substantial Completion to establish all items to be completed or corrected; this list may be supplemented by the Architect or the City. 1.2.1.19 Specifications. The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services. Organization of the Specifications into divisions, sections and articles, and arrangement of drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. 1.2.1.20 Subcontractor. The term "subcontractor" shall mean and include only those hired by and having a direct contact with Contractor for performance of work on the Project. The City shall have no responsibility to any subcontractor employed by a Contractor for performance of work on the Project, and all subcontractors shall look exclusively to the Contractor for any payments due. 1.2.1.21 Substantial Completion. The term "Substantially Completed" means that in the sole discretion of the City's Representative, the Project, including all systems and improvements, is in a condition to serve its intended purpose but still may require minor miscellaneous work and adjustment. Final payment of the Agreement Price, including retainage, however, shall be withheld until Final Completion and acceptance of the work by the City. Acceptance by the City shall not impair or waive any warranty obligation of Contractor. 1.2.1.22 Work. The term "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor,materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project. The Work includes all labor, parts, supplies, skill, supervision, transportation, services, and other facilities and things necessary, proper or incidental to the carrying out and completion of the terms of the Contract Documents and all other items of cost or value needed to produce, construct and fully complete the Work identified by the Contract Documents. 1.2.1.23 Unless otherwise stated in the Contract Documents, words which have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. 6 1.3 Contract Documents. 1.3.1 The Contract Documents and their priority shall be as follows: 1.3.1.1 This signed Agreement 1.3.1.2 Addendum to this Agreement 1.3.1.3 Special Conditions 1.3.1.4 Technical specifications 1.3.1.5 Drawings 1.3.1.6 Instructions to Bidders and any other notices to Bidders or Contractor 1.3.1.7 Performance bond,Payment bonds, Bid bonds and Special bonds 1.3.1.8 Contractor's Proposal 1.3.2 Where applicable, the Contractor will be furnished one (1) CD of plans, drawings, specifications, and related Contract Documents for its use during construction. Plans and specifications provided for use during construction shall be furnished directly to the Contractor only. 1.3.3 The Contractor shall distribute copies of the plans and specifications to suppliers and subcontractors as necessary. The Contractor shall keep one (1) copy of the plans and specifications accessible at the work site with the latest revisions noted thereon. For proper execution of the work contemplated by this Agreement. 1.3.4 All drawings, specifications, and copies thereof furnished by the City shall not be re-used on other work, and with the exception of one(1)copy of the signed Contract Documents, all documents, including sets of the plans and specifications and "as built" drawings, are to be returned to the City on request at the completion of the work. All Contract Documents, models, mockups, or other representations are the property of the City. In the event of inconsistencies within or between parts of the Contract Documents, the Contractor shall (1) provide the better quality or greater quantity of Work, or (2) comply with the more stringent requirement, either or both in accordance with the City's interpretation. 1.4 Owner. 1.4.1 The Owner (or City) is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Owner" means the City of Pearland or the City's authorized representative. The terms "Owner"and "City" may be used interchangeably throughout this Agreement. 1.4.2 The presence of the City or Architect at the Work site does not imply 7 acceptance or approval of Work. 1.4.3 Information And Services Required Of The Owner. 1.4.3.1 Information or services reasonably necessary for the Work and under the City's control shall be furnished by the City with reasonable promptness where requested in writing by the Contractor. In any instance where information or services from the City or Architect is required, Contractor shall promptly notify the Architect in writing, with a copy to the City, of the particular need. Absent such notification, any Claim based upon lack of such information or services shall be waived. 1.4.4 Owner's Right to Stop the Work. 1.4.4.1 If the Contractor fails to correct Work which is not in accordance with the requirements of the Contract Documents as required by Paragraph 1.14.2. or persistently fails to carry out Work in accordance with the Contract Documents, the City may issue a written order to the Contractor to stop the Work,or any portion thereof, until the cause for such order has been eliminated; however,the right of the City to stop the Work shall not give rise to a duty on the part of the City to exercise this right for the benefit of the Contractor or any other person or entity. 1.4.5 Owner's Right to Carry Out the Work. 1.4.5.1 If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a seven-day period after receipt of written notice from the City to commence and continue correction of such default or neglect with diligence and promptness, the City may, without prejudice to other remedies the City may have,correct such deficiencies. In such case an appropriate Change Order shall be issued deducting from payments then or thereafter due the Contractor the cost of correcting such deficiencies, including compensation for the Architect's additional services made necessary by such default, neglect or failure. If payments then or thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference to the City. 1.4.5.2 After the Work is complete, the City may make emergency repairs to the Work, if necessary, to prevent further damage, or if the Contractor does not promptly respond to a notice of condition requiring repairs. Contractor shall be responsible to City for this cost if the repairs are due to the Contractor's defective Work. If payments then or thereafter due the Contractor are not sufficient to cover such costs, the Contractor shall pay the difference to the City. 1.4.6 Owner's Right to Use or Occupy. 1.4.6.1 The City shall have the right to occupy or use without prejudice to the right of either party, any completed or largely completed portions of the Project, notwithstanding the time for completing the entire Work or such portions may not have expired. Such occupancy and use shall not constitute acceptance of any Work not in accordance with the Contract Documents. 1.5 Contractor. 8 1.5.1 The Contractor is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Contractor"means the Contractor or the Contractor's authorized representative. 1.5.2 The Contractor shall perform the Work in accordance with the Contract Documents 1.5.3 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either by activities or duties of the Architect in the Architect's administration of the Contract, or by tests, inspections or approvals required or performed by persons other than the Contractor. 1.5.4 Review of Contract Documents and Field Conditions by Contractor. 1.5.4.1 The Contractor shall carefully study and compare the Agreement, Conditions of the Contract, Drawings, Specifications, Addenda, and Modifications and shall at once report to the Architect any error, inconsistency, or omission the Contractor discovers. These obligations are for the purpose of facilitating construction by the Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents; however, any errors, inconsistencies or omissions discovered by the Contractor shall be reported promptly to the Architect as a request for information in such form as the Architect may require. If the Contractor performs any construction activity knowing it involves a recognized error, inconsistency or omission in the Contract Documents without such notice to the Architect,the Contractor shall assume responsibility for such performance and shall pay the total amount of the attributable costs for correction. Contractor shall not be liable to City or Architect for any damage resulting from such error, inconsistency or omission which Contractor should not have discovered or which Contractor did discover and at once so reported. Contractor shall do no Work without approved Drawings and Specifications marked Issued for Construction. 1.5.4.2 If the Contractor fails to perform the obligations of Paragraph 1.5.4.1., the Contractor shall pay such costs and damages to the City as would have been avoided if the Contractor had performed such obligations. 1.5.4.3 The Contractor shall not be entitled to additional compensation for the "rework portion" of any additional work caused by its failure to carefully study and compare the Contract Documents prior to execution of the Work. 1.5.4.4 The Contractor shall make a reasonable attempt to interpret the Contract Documents before asking the Architect for assistance in interpretation. The Contractor shall not ask the Architect for observance of work prior to the Contractor's field superintendent's personal inspection of the Work and his determination that the Work complies with the Contract Documents. The Contractor shall arrange meetings prior to commencement of the Work of all major Subcontractors to allow the Subcontractor(s) to ask for any interpretation it may require. 1.5.4.5 If, in the opinion of the Architect, the Contractor does not make a reasonable effort to comply with the above requirements of the Contract Documents 9 and this causes the Architect or its Consultants to expend an unreasonable amount of time in the discharge of the duties imposed on the Architect by the Contract Documents, then the Contractor shall bear the cost of compensation for the Architect's additional services made necessary by such failure. The Architect will give the Contractor prior notice of intent to bill for additional services related to above requirements before additional services are performed. 1.5.4.6 If the Contractor has knowledge that any of the products or systems specified will perform in a manner that will limit the Contractor's ability to satisfactorily perform Work or to honor Contractor's Warranty, Contractor shall promptly notify the Architect,in writing,providing substantiation for Contractor's position. Any necessary changes, including substitution of materials, shall be accomplished by appropriate Modification. 1.5.5 Supervision and Construction Procedures. 1.5.5.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters. If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures. If the Contractor determines that such means, methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely written notice to the City and Architect and shall not proceed with that portion of the Work without further written instructions from the Architect. 1.5.5.2 The Contractor shall be responsible to the City for acts and omissions of the Contractor's employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for or on behalf of the Contractor or any of its Subcontractors. It is understood and agreed that the relationship of the Contractor to City shall be that of an independent contractor. Nothing contained herein or inferable herefrom shall be deemed or construed to(1)make Contractor the agent,servant or employee of the City, or(2) to create any partnership,joint venture, or other association between City and Contractor. Any direction or instruction by City or any of its authorized representatives in respect of the Work shall relate to the results the City desires to obtain from the Work, and shall in no way affect Contractor's independent contractor status described herein. 1.5.5.3 The Contractor shall be responsible for inspection of portions of Work already performed to determine that such portions are in proper condition to receive subsequent Work. 1.5.5.4 Contractor shall execute the Work in a good and workmanlike manner, continuously and diligently in accordance with generally accepted standards of construction management and practice for construction of projects similar to the Project, 10 using qualified, careful and efficient workers and in conformity with the provisions of this Contract and the other Contract Documents. 1.5.6 Labor and Materials. 1.5.6.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. 1.5.6.2 The Contractor may make substitutions only with the consent of the City, after evaluation by the Architect and in accordance with a Change Order. 1.5.6.3 The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Contract. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. 1.5.7 Warranty. 1.5.7.1 The Contractor warrants to the City and Architect that materials and equipment furnished under the Contract will be of good quality and new unless otherwise required or permitted by the Contract Documents, that the Work will be free from defects not inherent in the quality required or permitted, and that the Work will conform to the requirements of the Contract Documents and recognized industry standards. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance (unless such maintenance is Contractor's responsibility), improper operation, or normal wear and tear. If required by the Architect, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. The warranties set out in this Paragraph are not exclusive of any other warranties or guarantees set out in other places in the Contract Documents or implied under applicable law. 1.5.7.2 Prior to final payment, Contractor shall furnish any manufacturer warranties required by the Contract Documents. 1.5.7.3 When deemed necessary by the City, and prior to installation of any items specifically made subject to a performance standard or regulatory agency standard under any provision of the Contract Documents, Contractor shall furnish proof of conformance to the Architect. Proof of Conformance shall be in the form of(1)an affidavit from the manufacturer certifying that the item is in conformance with the applicable standard, (2)an affidavit from a testing laboratory certifying that the product has been tested within the past year and is in conformance with the appreciated standard, or(3)such further reasonable proof as required by the Architect. 1.5.7.4 The warranties of Contractor provided in Subparagraph 11 1.5.7.1. shall in no way limit or abridge the warranties of the suppliers of equipment and system which are to comprise a portion of the Work and all of such warranties shall be in form and substance as required by the Contract Documents. Contractor shall take no action or fail to act in any way which results in the termination or expiration of such third party warranties or which otherwise results in prejudice to the rights of City under such warranties. Contractor agrees to provide all notices required for the effectiveness of such warranties and shall include provisions in the contracts with the providers and manufacturers of such systems and equipment whereby the City shall have a direct right, but not a duty, of enforcement of such warranty obligations. 1.5.7.5 In the event of failure of materials,products, or workmanship, either during construction or the warranty period(which shall be one(1) year from the Date of Final Completion, except where a longer period is specified), the Contractor shall take appropriate measures to assure correction or replacement of the defective items, whether notified by the City or Architect. 1.5.7.6 Approximately eleven (11) months after Substantial Completion, the Contractor shall accompany the City and Architect on a complete inspection of the Project and be responsible for correcting any observed or reported deficiencies within thirty(30) calendar days. 1.5.8 Permits.Fees and Notices. 1.5.8.1 Unless otherwise provided in the Contract Documents, the Contractor shall establish an Allowance in the GMP for the payment for gas, electric utility connections to the project. Owner shall pay the Contractor the direct costs of these connection fees as determined by the Utility's Terms and Conditions statement. 1.5.8.2 Water and Sewer utilities will be established and service provided at no-charge to the contractor. However the contractor may provide the site with a temporary "hydrant mete?'obtainable from the Public Works department for the refundable deposit of $1,425.00 plus a non-refundable$75.00 setting fee. 1.5.8.3 Upon acceptance of the project as Substantially Complete the Owner and Contractor shall arrange for the transfer of all utilities to the Owner's account. To avoid any interruption of critical utility services,Contractor shall notify Owner 60 days prior to anticipated transfer date. Owner shall immediately make arrangements to establish accounts as necessary to transfer billing within a seven day window of the scheduled date. Should transfer of utility billing be delayed through no fault of Contractor,Owner shall pay Contractor a daily utility rate equal to the charges accrued between planned transfer date and date of actual transfer. 1.5.8.4 The Contractor shall include and pay for any inspections necessary for proper execution and completion of the Work which are customarily secured after execution of the Contract and which are legally required when bids are received or negotiations concluded. All permit fees for the project shall be the responsibility of the Owner. The City will not charge inspection fees for inspection services provided by its internal forces. 1.5.8.5 The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations and lawful orders and all other requirements of public authorities applicable to performance of the Work. The Contractor shall procure and obtain all bonds required of the City or the Contractor by the Contract Documents. In connection 12 with such bonds, the Contractor shall prepare all applications, supply all necessary back-up material, and furnish the surety with any required information. The Contractor shall also obtain and pay all charges for all approvals for street closing and other similar matters as may be necessary or appropriate from time to time for the performance of the Work. 1.5.8.6 It is not the Contractor's responsibility to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, building codes, and rules and regulations. However, if the Contractor observes that portions of the Contract Documents are contrary therewith, the Contractor shall promptly notify the Architect and City in writing, and necessary changes shall be accomplished by appropriate Modification. 1.5.8.7 If the Contractor performs Work which it knows to be contrary to applicable laws, statutes, ordinances, building codes, and rules and regulations and fails to provide such notice to the Architect and City, the Contractor shall be liable for any cost incurred by the City due to the failure to provide notice and shall promptly remediate any and all work identified to be in violation. 1.5.8.8 The Contractor shall be responsible for timely notification to and coordination with all utility companies regarding the provision of or revising of services to the Project. The Contractor shall inform the Architect at once when the City's participation is required. Connections for temporary and permanent utilities required for the Work are the responsibility of the Contractor. Payment for temporary and/or permanent utility services through Substantial Completion of the Work shall be the responsibility of the Contractor. 1.5.9 Allowances. 1.5.9.1 Material and Equipment Allowances: The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents or identified in the development of the GMP. These stated allowances represent the cost estimate of the materials and equipment delivered and unloaded at the site. The Contractor's installation labor, overhead, profit, and other expenses contemplated for the allowance material and equipment shall be included in allowance only where called for in the Contract Documents. The Contractor shall purchase the allowance materials and equipment as directed by the Architect on the basis of the lowest responsive bids of at least three (3) competitive bids. If the actual cost of the material and equipment delivered and unloaded at the site is more or less than the individual allowance estimate, upon City approval the Contract Sum will be adjusted accordingly by Change Order. The amount of the Change Order shall reflect (1) the difference between actual costs and the allowances under Paragraph 1.5.9.1 and (2) changes in Contractor's costs, subject to the limitations set forth at Paragraph 1.9.2.1 (c). 1.5.9.2 Materials and equipment under an allowance shall be selected with reasonable promptness by the City to avoid delays in the Work (provided that if a decision is needed by a certain date to avoid delay, Contractor shall notify Architect in writing sufficiently in advance of the needed date to allow reasonable time for selections). 13 1.5.9.3 Utility Connection Allowances: The Contractor shall include in the Contract Sum Utility Connection allowances stated in the Contract Documents or identified in the development of the GMP. These stated allowances represent the cost estimate of the Terris and Conditions of the Utility to perform the installation of materials and equipment of the site to provide the project with the subject utility. The Contractor's labor, overhead, profit, if any, contemplated for the Utility allowance shall be included in allowance only where called for in the Contract Documents. If the actual cost of the utility connection fees is more or less than the individual allowance estimate, upon City approval the Contract Sum will be adjusted accordingly by Change Order. 1.5.10 Superintendent. 1.5.10.1 The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work. The superintendent shall represent the Contractor, and communications given to the superintendent shall be as binding as if given to the Contractor. Important communications shall be confirmed in writing. Other communications shall be similarly confirmed on written request in each case. Notwithstanding the foregoing, Contractor shall keep on the job the superintendent approved by City who shall not be transferred from the Project without City's consent (which shall not be unreasonably withheld). However, such obligation to furnish the superintendent shall not be construed (1) to preclude the promotion within Contractor's organization of any person assigned to the Project or (2) to give rise to any liability of Contractor if any person assigned to the Project leaves Contractor's employ. If City reasonably determines that any employee of Contractor or of its Subcontractors is careless or not qualified to perform the Work assigned to him, and City and Contractor cannot, after a diligent and good faith attempt, agree what action should be taken with respect to the removal or reassignment of such employees, the Contractor shall promptly remove such employee from the Project and replace such employee. At all times while procurement activities are being performed in Contractor's office, Contractor shall appoint an individual(approved by City,acting reasonably) authorized to act on behalf of Contractor and with whom City may consult at all reasonable times, and who shall be authorized to receive the instructions, requests and decisions of City. All of Contractor's and Subcontractor's personnel shall comply with all applicable health, safety, and loss prevention rules of applicable authorities. Contractor shall,at its own expense,remove from the Project any person who fails to comply with such rules and instructions in any material respect. 1.5.11 Contractor's Construction Schedules. 1.5.11.1 The Contractor shall, promptly after executing the Contract, develop a construction schedule reasonably defining a plan for completing the Work within the required time. The format and detail of the schedule shall be in keeping with the size and complexity of the Project, and the schedule and all subsequent updates shall be subject to the approval of the City and Architect. The schedule and any updates shall not exceed time limits current under the Contract Documents including granted time extensions, and shall be revised at appropriate intervals as reasonably required by the City and Architect, 14 shall be related to the entire Project (if more than one Contract is involved in the Project), and shall provide for expeditious and practicable execution of the Work. All updated schedules shall address the subject of how the Contractor intends to overcome any delays previously encountered. The Contractor shall submit to the Architect with each monthly Application for Payment, a copy of the updated construction schedule as a prerequisite for approval of Applications for Payment. 1.5.11.2 The Contractor shall prepare and keep current, for the Architect's approval, a schedule of submittals which is coordinated with the Contractor's construction schedule and allows the Architect reasonable time to review submittals. 1.5.11.3 The Contractor shall perform the Work in general accordance with the most recent schedules submitted to the City and Architect. 1.5.11.4 The process of approving Contractor's schedules and updates to Contractor's schedules shall not constitute a warranty by the City that any non-Contractor milestones or activities will occur as set out in the Contractor's schedules. Approval of a Contractor's schedule does not constitute a commitment by the City to furnish any Owner- furnished information or material any earlier than City would otherwise be obligated to furnish that information or material under the Contract Documents. Failure of the Work to proceed in the sequence scheduled by Contractor shall not alone serve as the basis for a Claim for additional compensation or time. In the event there is interference with the Work which is beyond its control, Contractor shall attempt to reschedule the Work in a manner that will hold the additional time and costs to a minimum. The construction schedules shall be in a detailed format satisfactory to the City and the Architect and shall also: (1)provide a graphic representation of all activities and events that will occur during performance of Work; (2) identify each phase of construction and occupancy; and (3) set forth dates that are critical in ensuring the timely and orderly completion of the Work in accordance with the requirements of the Contract Documents (hereinafter referred to as Milestone Dates). If not accepted, the construction schedules shall be promptly revised by the Contractor in accordance with the recommendations of the City and Architect and re-submitted for acceptance. The Contractor shall monitor the progress of the Work for conformance with the requirements of the construction schedules and shall promptly advise the City of any delays or potential delays. The accepted construction schedules shall be updated to reflect actual conditions as set forth in Paragraph 1.5.11.1, if requested, by either the City or Architect. In the event any schedule indicates any delays, the Contractor shall propose an affirmative plan to correct the delay. In no event shall any schedule constitute an adjustment in the Contract Time, any Milestone Date or the Contract Sum unless any such adjustment is agreed to by the City and authorized pursuant to Change Order. 1.5.12 Documents and Samples at the Site. 1.5.12.1 The Contractor shall maintain at the site for the City one record copy of the Permit Drawings, Specifications, Addenda, Change Orders, As Built Mark-ups and other Modifications, in good order and marked currently to record field changes and selections made during construction, and one record copy of approved Shop Drawings, Product Data, Samples and similar required submittals. These shall be available to the Architect and shall be delivered to the Architect for submittal to the City upon 15 completion of the Work. 1.5.13 Shop Drawings,Product Data and Samples. 1.5.13.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub- subcontractor,manufacturer, supplier or distributor to illustrate some portion of the Work. 1.5.13.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. 1.5.13.3 Samples are physical examples which illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. 1.5.13.4 Shop Drawings,Product Data, Samples and similar submittals are not Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required by the Contract Documents the way by which the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents. Review by the Architect is subject to the limitations of Paragraph 1.6.2.7. Informational submittals upon which the Architect is not expected to take responsive action may be so identified in the Contract Documents. Submittals which are not required by the Contract Documents may be returned by the Architect without action. 1.5.13.5 The Contractor shall review for compliance with the Contract Documents, approve and submit to the Architect Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the City or of separate contractors. Submittals which are not marked as reviewed for compliance with the Contract Documents and approved by the Contractor may be returned by the Architect without action. 1.5.13.6 By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor represents that the Contractor has determined and verified materials, field measurements and field construction criteria related thereto, or will do so, and has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents. If, in the opinion of the Architect, the shop drawings indicate a lack of study and the review by the Contractor is incomplete, or indicate an inadequate understanding of the Work covered by the shop drawings,prior to submittal to the Architect,the shop drawings will be returned, unchecked, to the Contractor for correction of any/all of these deficiencies for subsequent resubmittal. 1.5.13.7 The Contractor shall perform no portion of the Work for which the Contract Documents require submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the respective submittal has been approved by the Architect. 16 1.5.13.8 The Work shall be in accordance with approved submittals except that the Contractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents by the Architect's approval of Shop Drawings, Product Data, Samples or similar submittals unless the Contractor has specifically informed the Architect in writing of such deviation at the time of submittal and (1) the Architect has given written approval to the specific deviation as a minor change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing the deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings,Product Data, Samples or similar submittals by the Architect's approval thereof. 1.5.13.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data, Samples or similar submittals, to revisions other than those requested by the Architect on previous submittals. In the absence of such written notice the Architect's approval of a resubmission shall not apply to such revisions. 1.5.13.10 The Contractor 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 Contractor needs to provide such services in order to carry out the Contractor's responsibilities for construction means, methods, techniques, sequences and procedures. The Contractor shall not be required to provide professional services in violation of applicable law. If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of the Contractor by the Contract Documents, the City and the Architect will specify all performance and design criteria that such services must satisfy. The Contractor shall cause such services or certifications to be provided by a properly licensed design professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professional's written approval when submitted to the Architect. The City and the Architect shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals, provided the City and Architect have specified to the Contractor all performance and design criteria that such services must satisfy. Pursuant to this Paragraph 1.5.13.10, the Architect will review, approve or take other appropriate action on submittals only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Contractor shall not be responsible for the adequacy of the performance or design criteria required by the Contract Documents. 1.5.13.11 Adequate copies of Shop Drawings for architectural, structural, mechanical and electrical work shall be submitted to the Architect for review in the order of scheduled and upcoming work. 1.5.13.12 The Contractor shall submit complete Drawings, Data and Samples to the Architect at least thirty(30) days prior to the date the Contractor needs the reviewed submittals returned. The Contractor shall be prepared to submit color samples on any key items within sixty (60) days of the execution of the Contract. Once samples of all key items are received, the Architect will finalize color selections. 17 1.5.13.13 The Contractor shall submit the number of copies of Product Data and Samples which the Contractor and its Subcontractor(s) need for their use. Where Shop Drawings are involved, the Contractor shall submit one (1) high quality reproducible transparency and one (1)opaque print of the Shop Drawings for the Architect. The reproducible transparency will be marked by the Architect and/or its consultants. After final review and correction of the submittal, Contractor shall send one (1) corrected set to the Architect and one (1) to each of the Architect's consultants involved with the particular section of Work. The Contractor shall provide composite BIM Model within three(3) months of the issuance of the GMP showing how all piping, ductwork, lights, conduit, equipment, etc. will fit into the ceiling space allotted, including clearances required by the manufacturer, by code, or in keeping with good construction practice. Space for all trade elements must be considered on the same model. BIM shall reflect components shown in a '/4 inch scale. 1.5.14 Use of Site. 1.5.14.1 The Contractor shall confine operations at the site to areas permitted by law, ordinances, permits and the Contract Documents and shall not unreasonably encumber the site with materials or equipment. 1.5.14.2 The Contractor's access to the site, parking, field office location,material and equipment storage,and confinement of said areas shall be coordinated with, and approved by the City prior to the Contractor's mobilization on the site. Once agreed upon,the Contractor shall not adjust or increase any of the above areas without prior consent by the Owner. 1.5.15 Cutting and Patching. 1.5.15.1 The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. 1.5.15.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed construction of the City or separate contractors by cutting, patching or otherwise altering such construction, or by excavation. The Contractor shall not cut or otherwise alter such construction by the City or a separate contractor except with written consent of the City and of such separate contractor; such consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the City or a separate contractor the Contractor's consent to cutting or otherwise altering the Work. Any such alteration involving cutting or removal of previously installed work shall be approved in writing by the Contractor and the Architect prior to initiation of the alteration. 1.5.16 Cleaning Up. 1.5.16.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. At completion of the Work, the Contractor shall remove from and about the 18 Project waste materials, rubbish, the Contractor's tools, construction equipment, machinery and surplus materials. The Contractor shall be responsible for protection of the Work and shall repair or replace damaged work at Substantial Completion of the Work. The Contractor shall remove all temporary protections at the completion of the Work. 1.5.16.2 If the Contractor fails to clean up as provided in the Contract Documents, the City may do so and the cost thereof shall be charged to the Contractor. 1.5.16.3 Prior to the Architect's inspection for Substantial Completion, the Contractor shall: clean exterior surfaces exposed to view; remove temporary labels, stains, and foreign substances; polish transparent and glossy surfaces; clean equipment and fixtures to a sanitary condition; clean roofs; clean the Project site; sweep paved areas and rake clean other surfaces; and remove trash and surplus materials from the Project site. 1.5.17 Access to Work. 1.5.17.1 The Contractor shall provide the City, its contractors, vendors or employees and Architect access to the Work in preparation and progress wherever located. Contractor may impose such safety"rules and regulations"on these entities as are imposed on its own sub-contractors, vendor and employees but shall not require undue or burdensome requirements that Contractor's own sub-contractors,vendors or employees are not also subject to. 1.5.18 Royalties, Patents and Copyrights. 1.5.18.1 The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for infringement of copyrights and patent rights and shall hold the City and Architect harmless from loss on account thereof, but shall not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is required by the Contract Documents or where the copyright violations are contained in Drawings, Specifications or other documents prepared by the City or Architect. However, if the Contractor has reason to believe that the required design, process or product is an infringement of a copyright or a patent, the Contractor shall be responsible for such loss unless such information is promptly furnished to the Architect. 1.5.19 INDEMNIFICATION AND RELEASE. 1.5.19.1 CONTRACTOR SHALL PROTECT, DEFEND, HOLD HARMLESS AND INDEMNIFY THE CITY FROM ANY AND ALL CLAIMS, DEMANDS, EXPENSES,LIABILITY OR CAUSES OF ACTION FOR INJURY TO ANY PERSON,INCLUDING DEATH,AND FOR DAMAGE TO ANY PROPERTY, TANGIBLE OR INTANGIBLE, OR FOR ANY BREACH OF CONTRACT ARISING OUT OF OR IN ANY MANNER CONNECTED WITH THE WORK DONE BY ANY PERSON UNDER THIS AGREEMENT. IT IS THE INTENT OF THE PARTIES THAT THIS PROVISION SHALL EXTEND TO, AND INCLUDE, ANY AND ALL CLAIMS, CAUSES OF ACTION OR LIABILITY CAUSED BY THE CONCURRENT, JOINT AND/OR CONTRIBUTORY NEGLIGENCE OF THE CITY, AN ALLEGED BREACH OF AN EXPRESS OR IMPLIED 19 WARRANTY BY THE CITY OR WHICH ARISES OUT OF ANY THEORY OF STRICT OR PRODUCTS LIABILITY. 1.5.19.2 The indemnifications contained in Paragraph 1.5.19.1. shall include but not be limited to the following specific instances: (a) The City is damaged due to the act, omission, mistake, fault or default of the Contractor. (b) In the event of any claims for payment for goods or services brought by any material suppliers, mechanics, laborers, or other subcontractors. (c) In the event of any and all injuries to or claims of adjacent property owners caused by the Contractor,its agents,employees, and representatives. (d) In the event of any damage to the floor,walls,etc.,caused by the Contractor's personnel or equipment during installation. (e) The removal of all debris related to the Work. (0 The acts and omissions of the subcontractors. (g) The Contractor's failure to comply with applicable federal,state,or local regulations,that touch upon or concern the maintenance of a safe and protected working environment and the safe use and operation of machinery and equipment in that working environment, no matter where fault or responsibility lies. 1.5.19.3 The indemnification obligations of the Contractor under this Paragraph shall not extend to include the liability of any professional engineer, the architect, their consultants, and agents or employees of any of them arising out of(1) the preparation or approval of maps, drawings, opinions, reports, surveys, Change orders, designs or specifications, or (2) the giving of or the failure to give directions or instructions by the professional engineer, the architect, their consultants, and agents and employees of any of them, provided such giving or failure to give is the primary cause of the injury or damage. 1.5.19.4 It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the indemnification obligation under Paragraph 1.5.19.1., such legal limitations are made a part of the indemnification obligation and shall operate to amend the indemnification obligation to the minimum extent necessary to bring the provision into conformity with the requirements of such limitations, and as so modified, the indemnification obligation shall continue in full force and effect. 1.5.19.5 Contractor's indemnification obligations hereunder shall survive termination, completion, abandonment and final payment. 20 1.5.19.6 The Contractor assumes full responsibility for the Work to be performed hereunder, and hereby releases, relinquishes, and discharges the City, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of any person (whether employees of either party or other third parties) and any loss of or damage to any property(whether property of either of the parties hereto, their employees, or of third parties)that is caused by or alleged to be caused by, arising out of,or in connection with the Contractor's Work to be performed hereunder. This release shall apply regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance, and in the event of injury, death, property damage, or loss suffered by the Contractor,any Subcontractor, or any person or organization directly or indirectly employed by any of them to perform or furnish work on the Project, this release shall apply regardless of whether such injury, death, loss, or damage was caused in whole or in part by the negligence of the City. 1.5.20 Reproducible Record Drawings. 1.5.20.1 Required as part of Final Completion of the Project, the Contractor shall submit one (1) complete set of drawings with all changes made during construction, including concealed mechanical, electrical, and plumbing items 1.6 Administration of the Contract. 1.6.1 Architect. 1.6.1.1 The Architect is the person lawfully licensed to practice architecture or an 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 or such successor Architect as City may appoint by written notice to Contractor from time to time. 1.6.1.2 City shall notify Contractor when the duties, responsibilities or limitations of authority of the Architect have been modified. 1.6.1.3 If the employment of the Architect is terminated,the City may elect to appoint a replacement Architect, or at its option, elect to complete the Project using another consultant or representative to perform the balance of the Architect's functions on the Work. 1.6.1.4 Except as herein expressly provided, the Contractor shall not be relieved of its obligation to perform the Work in strict accordance with the Contract Documents by the activities or duties of the Architect. 1.6.2 Architect's Administration of the Contract. 1.6.2.1 Certain portions of the administration of the Contract will be performed by the Architect. The Architect shall not have the authority to act on behalf of the City unless such authority is expressly granted in the Contract Documents, nor shall such authority be implied from any act or representation of the Architect. The City is free to elect to have some of the administration duties set out for the Architect to perform under 21 the Contract Documents performed by a construction manager or by employees of the City. 1.6.2.2 The Architect,as a representative of the City, 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 City informed about the progress and quality of the portion of the Work completed, (2) to endeavor to guard the City 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. However, the Architect will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The Architect 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, except as provided in Paragraph 1.5.5.1. In no event shall City or any other party have control over,be in charge of,or be responsible for construction means, methods, techniques, sequences, procedures, or for safety precautions and programs in connection with the Work, since these are solely Contractor's responsibilities. City will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. City will not have control over, be in charge of, and will not be responsible for the acts or omissions of Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the Work. 1.6.2.3 The Architect 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. 1.6.2.4 Communications Facilitating Contract Administration. Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized,the City and Contractor shall endeavor to communicate with each other through the Architect about matters arising out of or relating to the Contract. Communications by and with the Architect'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 City. 1.6.2.5 Based on the Architect's evaluations of the Contractor's Applications for Payment, the Architect will review and certify the amounts due the Contractor and will issue Certificates for Payment in such amounts. 1.6.2.6 The Architect will have authority to reject Work that does not conform to the Contract Documents. Whenever the Architect considers it necessary or advisable for implementation of the intent of the Contract Documents, the Architect will have authority to require additional inspection or testing of the Work in accordance with Paragraphs 1.15.5.2. and 1.15.5.3., whether or not such Work is fabricated, installed or completed. However, neither this authority of the Architect nor a decision made reasonably and in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Contractor, Subcontractors, material and equipment 22 suppliers, their agents or employees, or other persons or entities performing portions of the Work. 1.6.2.7 The Architect will review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect's action will be taken with such reasonable promptness as to cause no delay in the Work or in the activities of the City, Contractor or separate contractors, while allowing sufficient time in the Architect's professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Architect's review of the Contractor's submittals shall not relieve the Contractor of its obligations. The Architect's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Architect, of any construction means, methods, techniques, sequences or procedures. The Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a component. 1.6.2.8 The Architect will prepare Change Orders and Construction Change Directives, and may authorize minor changes in the Work as provided in Paragraph 1.9.4. 1.6.2.9 The Architect will conduct inspections to determine the date or dates of Substantial Completion and the date of Final Completion, will receive and forward to the City, for the City's review and records, written warranties and related documents required by the Contract and assembled by the Contractor, and will issue a final Certificate for Payment upon compliance with the requirements of the Contract Documents. 1.6.2.10 If the City and Architect agree, the Architect will provide one or more project representatives to assist in carrying out the Architect's responsibilities at the site. The duties, responsibilities and limitations of authority of such project representatives shall be as set forth in an exhibit to be incorporated in the Contract Documents. 1.6.2.11 The Architect will interpret and decide matters concerning performance under, and requirements of, the Contract Documents on written request of either the City or Contractor. The Architect'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 shall be furnished in compliance with this Paragraph 1.6.2.11,then delay shall not be recognized on account of failure by the Architect to furnish such interpretations until thirty(30)days after written request is made for them. 1.6.2.12 Interpretations and decisions of the Architect 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. 1.6.2.13 The Architect's decisions on matters relating to all Work will be final if consistent with the intent expressed in the Contract Documents. 23 1.6.3 Claims and Disputes. 1.6.3.1 Definition. A Claim is any demand or assertion by the Contractor that it should be paid more money than the Contract Sum, as adjusted under the Change Order provisions herein, by the City because of action or inaction on the part of City, Architect, or any party for whom City is responsible,or any party with whom City has separately contracted for other portions of the Project, including but not limited to any demand or assertion that Contractor's performance has been delayed, interrupted or interfered with, that Contractor's performance has been accelerated, constructively accelerated, or suspended, that Contractor's performance has been wrongfully terminated, that the Contract Documents have been misinterpreted, that here has been a failure of payment,that Contractor has encountered concealed or unknown conditions, that Contractor has encountered hazardous materials, that there are problems with the Contract Documents, or the timing of Architectural approvals or decisions, that action of the City have been intentionally wrongful or deceptive in any way to the Work, that the amount of time or money granted in a Construction Change Directive is inadequate, that an item treated as a minor change in the Work should have been treated as a Change Order,that a time extension granted was inadequate,or that Contractor is entitled to any other relief, on any legal theory, related to the Work and the Contract. Nothing contained in this subparagraph shall be construed as creating any Contractor right to make a claim, where no such right otherwise exists. 1.6.3.2 Notice Requirement: Within ten (10) calendar days of the first occurrence of an event that Contractor has any reason to believe might result in a Claim, or within ten(10) calendar days of Contractor's discovery of the first occurrence of the event that Contractor has any reason to believe might result in a Claim, if the first occurrence of the event was willfully hidden from the Contractor, the Contractor shall file a written document clearly captioned "Notice of Claim" with City and Architect. The notice shall clearly set out the specific matter of complaint, and the impact of damages which may occur or have occurred as a result thereof, to the extent the impact or damages can be assessed at the time of the notice. If the impact or damages cannot be assessed as of the date of the notice, the notice shall be amended at the earliest date that is reasonably possible. 1.6.3.2.1 Any Claim or portion of a Claim that has not been made the specific subject of a notice strictly in accordance with the requirements of this Paragraph shall be waived. It is imperative that City have timely, specific notice of any subject, the impact of which City may be in a position to mitigate. 1.6.3.2.2 No course of conduct or dealings between the parties, nor implied acceptance of alteration or additions to the Work or changes to the Contract schedule, shall be the basis for any claim for an increase in the Contract Sum or change in the Contract Time. 1.6.3.3 Claims Handling During Construction: After receipt of a Notice of Claim, the City may elect to refer the matter to the Architect or another party for 24 review. Contractor will attend meetings called to review and discuss the Claim and mitigation of the problem, and shall furnish any reasonable factual backup of the Claim requested. The City may also elect to defer consideration of the Claim until the Work is completed, in which case the same review options shall be available to the City at the completion of the Work. At any stage, the City is entitled to refer a Claim to mediation under the Construction Industry Mediation Rules of the American Arbitration Association, and if this referral is made, Contractor will take part in the mediation process. The filing, mediation or rejection of a Claim does not entitle Contractor to stop performance of the Work. The Contractor shall proceed diligently with performance of the Work during the pendency of any claim, except termination under City's direction to stop the Work. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. The parties shall share the Mediator's fee and any filing fees equally, and the Mediation shall be held in Brazoria County, Texas. 1.6.3.4 Claims Handling Following Construction: The acceptance of final payment shall constitute a waiver of Claims by the Contractor which have not previously been identified in a timely notice of Claim and specifically reserved in the final Application for Payment. 1.6.3.5 Claims for Concealed or Unknown Conditions. Only if conditions are encountered at the site which are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or(2)unknown physical conditions of an unusual nature,which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then Contractor shall be entitled to make a Claim if it can satisfy all of the other requirements of Paragraph 1.6. 1.6.3.6 Claims for Additional Cost. If the Contractor wishes to make Claim for an increase in the Contract Sum, written notice and prior approval of City must occur before Contractor may execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property arising under Paragraph 1.12.4. 1.6.3.7 Calculating Claim Amount: In calculating the amount of any Claim,the following standards will apply: (a) No indirect or consequential damages will be allowed. (b) All damages must be directly and specifically shown to be caused by a proven wrong. No recovery shall be based on a comparison of planned expenditures to total actual expenditures, or on estimated losses of labor efficiency, or on a comparison of planned man loading to actual man loading, or any other analysis that is used to show damages indirectly. (c) Damages are limited to extra costs specifically shown to have been directly caused by a proven wrong. (d) The maximum daily limit on any recovery for delay shall be the amount established by the Contractor for job overhead costs, defined in the 25 Schedule of Values, divided by the total number of calendar days of Contract Time called for in the original Contract. Absent an overhead amount in the Schedule of Values, the amount estimated by the Contractor for job overhead costs shall be used. (e) The maximum amount of all Claims is expressly agreed to be limited to five percent(5%)of the Contract Sum. 1.7 Subcontractors. 1.7.1 Definitions. 1.7.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion of the Work at the site. The term "Subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor. 1.7.1.2 A Sub-subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the Work at the site. The term "Sub-subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Sub-subcontractor or an authorized representative of the Sub- subcontractor. 1.7.2 Award of Subcontracts and Other Contracts for Portions of the Work. 1.7.2.1 Unless otherwise stated in the Contract Documents or the bidding requirements, the Contractor, as soon as practicable after award of the Contract, shall furnish in writing to the City, through the Architect, the names of persons or entities (including those who are to furnish labor, materials or equipment fabricated to a special design) proposed for each principal portion of the Work. The Architect will promptly reply to the Contractor in writing stating whether or not the City or the Architect, after due investigation, has reasonable objection to any such proposed person or entity. Failure of the City or Architect to reply promptly shall constitute notice of no reasonable objection. 1.7.2.2 The Contractor shall not contract with a proposed person or entity to whom the City or Architect has made reasonable and timely objection. The Contractor shall not be required to contract with anyone to whom the Contractor has made reasonable objection. 1.7.2.3 If the City or Architect has reasonable objection to a person or entity proposed by the Contractor, the Contractor shall propose another to whom the City or Architect has no reasonable objection. If the proposed but rejected Subcontractor was reasonably capable of performing the Work, the Contract Sum and Contract Time shall be increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order shall be issued before commencement of the substitute 26 Subcontractor's Work. However, no increase in the Contract Sum or Contract Time shall be allowed for such change unless the Contractor has acted promptly and responsively in submitting names as required. 1.7.2.4 The Contractor shall not change a Subcontractor, person or entity previously selected if the City or Architect makes reasonable objection to such substitute. 1.7.2.5 The Contractor shall submit the list of proposed Subcontractors on a form provided by the Architect. The Contractor may obtain blank copies from the Architect. 1.7.2.6 The Contractor and Subcontractors are required to visit the site and completely familiarize themselves with the existing conditions prior to the submission of Proposal(s). No additional increase in the Contract amount will be provided when existing or known conditions require a certain amount of work to comply with the intent of the Contract Documents. 1.7.3 Sub-contractual Relations. 1.7.3.1 By appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities, including the responsibility for safety of the Subcontractor's Work, which the Contractor, by these Documents, assumes toward the City and Architect. Each subcontract agreement shall preserve and protect the rights of the City and Architect under the Contract Documents with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights. Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with Sub-subcontractors. The Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor will be bound, and, upon written request of the Subcontractor, identify to the Subcontractor terms and conditions of the proposed subcontract agreement which may be at variance with the Contract Documents. Subcontractors will similarly make copies of applicable portions of such documents available to their respective proposed Sub-subcontractors. 1.7.4 Contingent Assignment Of Subcontracts. 1.7.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the City provided that: (a) assignment is effective only after termination of the Contract by the City for cause pursuant to Paragraph 1.16.2. and only for those subcontract agreements which the City accepts by notifying the Subcontractor and Contractor in writing; and (b) assignment is subject to the prior rights of the surety, if any, obligated under bond relating to the Contract. 27 1.7.4.2 City shall only be responsible for compensating Subcontractor for Work done or materials furnished after the date City gives written notice of its acceptance of the subcontract agreement. 1.7.4.3 Each Subcontract and assignment shall provide that the City shall only be responsible to the Subcontractor for those services and materials furnished by the Subcontractor subsequent to the City's exercise of any rights under this contingent assignment. 1.7.5 Responsibility. 1.7.5.1 Contractor shall be fully responsible for the performance of its Subcontractor, including those selected or approved by the City. 1.8 Construction by Owner or by Separate Contractors. 1.8.1 Owner's Right to Perform Construction and to Award Separate Contracts. 1.8.1.1 The City reserves the right to perform other construction work, maintenance and repair work near or adjacent to the site during the time period of the Work. Owner may perform other Work with separate contractors. City shall have access to the site at all times. Any contractor performing work on the site whether for the project or for other projects that require access through this site shall maintain the same insurance and indemnity limits as those of the Contractor. 1.8.1.2 When separate contracts are awarded for different portions of the Project or other construction or operations on the site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate Owner-Contractor Agreement. 1.8.2 Mutual Responsibility. 1.8.2.1 The Contractor shall afford the City and separate contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities, and shall connect and coordinate the Contractor's construction and operations with theirs as required by the Contract Documents. 1.8.2.2 If part of the Contractor's Work depends for proper execution or results upon construction or operations by the City or a separate contractor,the Contractor shall, prior to proceeding with that portion of the Work, promptly report to the Architect discrepancies or defects in such other construction that would render it unsuitable for such proper execution and results. Failure of the Contractor so to report shall constitute an acknowledgment that the City's or separate contractor's completed or partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not then reasonably discoverable. 1.8.2.3 The City shall be reimbursed by the Contractor for costs incurred by the City which are payable to a separate contractor because of delays, 28 improperly timed activities or defective construction of the Contractor. 1.8.2.4 The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially completed construction or to property of the City or separate contractors as provided in Paragraph 1.12.2.5. 1.8.2.5 The City and each separate contractor shall have the same responsibilities for cutting and patching as are described for the Contractor in Paragraph 1.5.15. 1.8.3 Owner's Right to Clean Up. 1.8.3.1 If a dispute arises among the Contractor, separate contractors and the City as to the responsibility under their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish, the City may clean up and the Architect will allocate the cost among those responsible. 1.9 Changs in the Work. 1.9.1 General. Changes in the Work may be accomplished after execution of the Contract, and without invalidating the Contract, by Change Order, Construction Change Directive or order for a minor change in the Work. The Contract Sum and/or Contract Time may be increased for changes in the Work if the provisions of this Paragraph have been met. 1.9.1.1.1 No change in the Contract Sum and/or Contract Time will be allowed for a change in the Work unless prior to performing the changed Work, the Contractor has provided the City in writing a proposal for any change in price and/or change in Contract Time caused by the change in Work, and a Change Order is subsequently executed. A field directive or field order shall not be recognized as having any impact upon the Contract Sum or the Contract Time, and Contractor shall have no Claim therefore, unless it shall, prior to complying with the directive and in any event within fourteen (14) calendar days of receiving the directive, submit a change proposal to the City, and a Change Order is subsequently executed, or Contractor satisfies the requirements of Paragraph 1.6.3. Contractor's proposal shall be subject to City's acceptance and remain firm and irrevocable for a period of forty-five (45) calendar days after receipt by City. Thereafter, Contractor reserves the right to resubmit such change proposal upon different pricing and time of performance terms. 1.9.1.2 A Change Order shall be based upon agreement among the City, Contractor and Architect; a Construction Change Directive requires agreement by the City and Architect and may or may not be agreed to by the Contractor; an order for a minor change in the Work may be issued by the Architect alone. 1.9.1.3 Changes in the Work shall be performed under applicable provisions of the Contract Documents, and the Contractor shall proceed promptly, unless 29 otherwise provided in the Change Order, Construction Change Directive or order for a minor change in the Work. Except as permitted in Paragraph 1.9.3., a change in the Contract Sum or the Contract Time shall be accomplished only by Change Order. 1.9.1.4 The Contractor, upon receipt of written notification by the Architect of a proposed item of change in the Work, shall prepare as soon as possible a Change Proposal in such form or forms as directed by the Architect. (a) Each separate Change Proposal shall be numbered consecutively and shall include material costs, labor costs, fees, overhead and profit. The Change Proposal shall specify all costs related to the proposed change in the Work,including any disruption or impact on performance. (b) The Subcontractor's itemized accounting shall be included with the Change Proposal. (c) If a Change Proposal is returned to the Contractor for additional information or if the scope of the proposed change in the Work is modified by additions, deletions or other revisions, the Contractor shall revise the Change Proposal accordingly and resubmit the revised Change Proposal to the Architect. (d) A revised Change Proposal shall bear the original Change Proposal number suffixed by the letter "R" to designate a revision in the original Change Proposal. If additional revisions to a revised Change Proposal are necessary, each subsequent revision shall be identified by an appropriate numeral suffix immediately following the"R" suffix. (e) Upon written approval of a Change Proposal by the City, the Architect will prepare an appropriate Change authorizing such change in Work. (f) The Contractor shall request extensions of Contract Time due to changes in the Work only at the time of submitting its Change Proposal. Contractor's failure to do so shall represent a waiver of any right to request a time extension. 1.9.2 Change Orders. 1.9.2.1 A Change Order is a written instrument prepared by the Architect and signed by the City, Contractor and Architect, stating their agreement upon all of the following: (a) change in the Work; and the amount of the adjustment, if any, in the Contract Sum; (b) the extent of the adjustment, if any, in the Contract Time. 1.9.2.2 Methods used in determining adjustments to the Contract Sum 30 may include those listed below: (a) mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation; (b) unit prices stated in Contract Documents or subsequently agreed upon; (c) cost shall be determined in a manner agreed upon by the parties and a mutually acceptable fixed fee, or the percentage fee established at Subparagraph 1.9.3.6., or (d) as provided in Subparagraph 1.9.3.6. 1.9.2.3 Agreement on any Change Order shall constitute a final settlement of all Claims by the Contractor directly or indirectly arising out of or relating to the change in Work which is the subject of the Change Order, including, but not limited to, all direct and indirect costs and impact costs associated with such change and any and all adjustments to the Contract Sum and the Contract Time. 1.9.3 Construction Change Directives. 1.9.3.1 A Construction Change Directive is a written order prepared by the Architect and signed by the City and Architect, directing a change in the Work prior to agreement on adjustment, if any, in the Contract Sum or Contract Time,or both. The City may by Construction Change Directive, without invalidating the Contract, order changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions, the Contract Sum and Contract Time being adjusted accordingly. 1.9.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change Order. 1.9.3.3 The Construction Change Directive shall include a unilateral change in the Contract Sum and/or Contract Time reflecting the City's view of the appropriate change in the Contract Sum and/or Contract Time for the change in Work covered by the Construction Change Directive. Until agreement is reached by the City and Contractor on these issues, the changes in Contract Sum and Contract Time set out in the Construction Change Directive shall be used for Schedule of Values, payment and scheduling purposes. 1.9.3.4 Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the change in the Work involved and advise the Architect of the Contractor's agreement or disagreement with the method, if any, provided in the Construction Change Directive for determining the proposed adjustment in the Contract Sum or Contract Time. 1.9.3.5 A Construction Change Directive signed by the Contractor indicates the agreement of the Contractor therewith, including adjustment in Contract Sum and Contract Time or the method for determining them. Such agreement shall be effective 31 immediately and shall be recorded as a Change Order. 1.9.3.6 In the absence of an agreement between City and Contractor on the proper change to the Contract Sum or Contract Time because of a change in the Work, Contractor may treat the matter as a Claim under Paragraph 1.6.3. In such event,the Contractor shall be entitled to recover only the amount by which the Cost of the Work has been reasonably increased over the Cost of Work without the change in the Work,plus five percent(5%). 1.9.3.7 Pending final determination of the cost of a Construction Change Directive to the City, amounts not in dispute may be included in Applications for Payment. The amount of credit to be allowed by the Contractor to the City for a deletion or change which results in a net decrease in the Contract Sum shall be actual net cost as confirmed by the Architect. When both additions and credits covering related Work or substitutions are involved in a change,the allowance for overhead and profit shall be figured on the basis of net increase, if any, with respect to that change. 1.9.4 Minor Changes in the Work. 1.9.4.1 The Architect will have authority to order minor changes in the Work not involving adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes shall be effected by written order and shall be binding on the City and Contractor. The Contractor shall carry out such written orders promptly. 1.9.5 Changes Funded By Allowances. 1.9.5.1 Allowances balances may be used to fund changes in the Work. The Contractor will not be allowed an overhead and profit mark-up when changes in the Work are funded by one of the Allowances. 1.10 Prosecution and Progress. 1.10.1 TIME AND ORDER OF COMPLETION. It is the meaning and intent of this Contract, unless otherwise herein specifically provided, that the CONTRACTOR shall be allowed to prosecute his Work at such times and seasons, in such order of precedence, and in such manner as shall be most conducive to economy of construction; provided, however, that the order and the time of prosecution shall be such that the Work shall be Substantially Completed as a whole and in part, in accordance with this Contract and the Contract Time; provided, also, that when the OWNER is having other work done, either by contract or by his own forces, the Architect may direct the time and manner of constructing the Work done under this Contract, so that conflict will be avoided and the construction of the various works being done for the OWNER shall be harmonized, and the CONTRACTOR shall fully cooperate and coordinate its Work with OWNER or such other contractors. 1.10.1.1 The CONTRACTOR shall submit, an updated schedule with every pay estimate for review by the Architect, schedules which shall show the order in which the CONTRACTOR proposes to carry on the Work, with dates on which the CONTRACTOR will start the several parts of the work, and estimated 32 dates of completion of the several parts. Such schedules shall show completion of the Work within the Contract Time, and/or shall show such recovery efforts as CONTRACTOR intends to undertake in the event Substantial Completion of the Work is delayed. 1.10.1.2 EXTENSION OF TIME. The CONTRACTOR agrees that he has submitted his Bid Proposal in full recognition of the time required for the completion of this Project, taking into consideration the average climatic range and industrial conditions prevailing in this locality, and has considered the liquidated damage provisions as hereinafter set forth, and that he shall not be entitled to, nor will he request, an extension of time on this Contract, except when Substantial Completion of the Work has been delayed solely by strikes, lockouts, fires, Acts of God, or by any other cause which the Architect shall decide justifies the delay. The CONTRACTOR shall give the Architect prompt notice, in writing and within three (3) days of the start of any such delay, of the cause of any such delay, and its estimated effect on the Work and the schedule for completion of the Work. Upon receipt of a written request for an extension of the Contract Time from the CONTRACTOR, supported by relevant and all requested documentation, the Architect shall submit such written request, together with his written recommendation, to the OWNER for consideration. If the delay is not attributable in whole or in part to any act or omission of CONTRACTOR, its subcontractors or suppliers, and if the OWNER determines that CONTRACTOR is entitled to an extension of time under the terms of the Contract, the OWNER shall grant an extension of time for Substantial Completion of the Work, sufficient to compensate for the delay, and such extension of time shall be CONTRACTOR's sole and exclusive remedy, except as may be otherwise provided herein. No extensions of Contract Time shall be made for delays occurring prior to the Contractor's mobilization as defined in the City's Specifications. The Contract Time as defined in the Bid Proposal and other sections herein incorporates 40 Rain Days per calendar year or an average of 3.33 days per calendar month. The CONTRACTOR is required to keep record of all weather related delays and to submit the monthly count on each Pay Application. The Owner's Representative shall review and sign off on this record as a part of the Pay Application approval process every month. If, during preparation of the Balancing Change Order, the status of the work progress requires an extension of the Contract Time, Impact Days shall be added to the Completion Date equal to the total number of Weather or Impact Days approved less the original 40 days resident in the original Contract Time. The Addition of Weather or Impact Days will only alter the Contract Time when added by Change Order. If the Work is completed prior to the Completion Date, No Days will be added. The addition of Weather or Impact Days shall be the CONTRACTOR's sole remedy for delays to the completion of the Work and their addition to the Contract Time shall not affect the Contract Price through any "per diem" adjustment to the General Conditions costs, Temporary Facilities costs or any other costs associated with the extension of the Contract Time. 1.10.1.3 HINDRANCES AND DELAYS. In executing the Contract, the CONTRACTOR agrees that in undertaking to complete the Work within the time herein fixed, he has taken into consideration and made allowances for all 33 interference, disruption, hindrances and delays incident to such Work, whether growing out of delays in securing material, workmen or otherwise. No claim shall be made by the CONTRACTOR for damages, loss, costs or expense resulting from interference, disruption, hindrances or delays from any cause during the progress of any portion of the Work embraced in this Contract, except where the Work is stopped or suspended by order of the OWNER's representative and such stoppage or suspension is not attributable to any act or omission of CONTRACTOR. 1.10.1.4 SUSPENSION OF WORK. OWNER may, without cause, order the CONTRACTOR in writing to suspend the Work, in whole or in part, for such period of time as OWNER may request. The Contract Price and/or Contract Time shall be adjusted for any increase in the cost of or the time required for performance of the Work caused by such suspension. No adjustment shall be made to the extent performance was or would have been suspended by a cause for which CONTRACTOR is responsible, or to the extent an adjustment is made or denied under another provision of the Contract Documents. 1.10.1.5 CHANGE OF CONTRACT TIME: The Contract Time may only be changed by a Change Order. Any claim for an adjustment of Contract Time shall be based on written notice delivered by the party making such claim to the other party and to the Architect promptly, but in no event later than ten (10) days after the event-giving rise to the claim. Notice of the extent of the claim, along with supporting data, shall be delivered within thirty (30) days of the occurrence and shall be accompanied by the claimant's written representation that the adjustment claimed is the entire adjustment to which the claimant has reason to believe it is entitled as a result of the occurrence of said event. All claims for adjustment in Contract Time shall be determined by the ARCHITECT in accordance with the requirements of this paragraph. Contractor shall submit, as a minimum, the following data: A. Information showing that the time requested is not included in the existing Contract and in addition to the Contract. B. Information documenting that the number of days requested is accurate for the event. C. Revised, current construction schedule showing that the time requested affects the project's critical path. 1.10.1.6 DELAYS BEYOND OWNER'S AND CONTRACTOR'S CONTROL: Where CONTRACTOR is prevented from completing any part of the Work within the Contract Time due to delays beyond the control of the OWNER and the CONTRACTOR, including, but not limited to, interference by utility owners or other contractors performing other work, Contractor shall be entitled to an extension of the Contract Time in an amount equal to the time lost. CONTRACTOR shall not be entitled to any increase in Contract Price as a result of such delays. IN NO EVENT SHALL OWNER BE LIABLE TO CONTRACTOR FOR DAMAGES ARISING OUT OF OR RESULTING FROM (i) Delays caused by, or within the control of, the CONTRACTOR, or (ii) Delays beyond the control of both parties including, but 34 not limited to, interference by utility owners or other contractors performing other work, fires, floods, epidemics, abnormal weather conditions, acts of God, even if such delays are due in part to the negligence, other fault, breach of contract or warranty, violation of the Texas Deceptive Trade Act, or strict liability without regard to fault of OWNER. An extension of Contract time shall be CONTRACTOR's sole and exclusive remedy for any such delays. Delays attributed to, and within the control of, a Subcontractor or Supplier shall be deemed to be delays within the control of the CONTRACTOR. 1.11 pavments and Completion. 1.11.1 Contract Sum. 1.11.1.1 The Contract Sum is stated in the Agreement and, including authorized adjustments, is the total amount payable by the City to the Contractor for performance of the Work under the Contract Documents. 1.11.2 Schedule of Values. 1.11.2.1 Before the first Application for Payment, the Contractor shall submit to the Architect a Schedule of Values fairly allocating the various portions of the Work, prepared in such form and supported by such data to substantiate its accuracy as reasonably required by the Architect. Once approved by the Architect and updated for changes in the Work, the Schedule of Values shall be used as a basis for reviewing the Contractor's Applications for Payment and is not to be taken as evidence of market or other value. The Schedule of Values shall not overvalue early job activities. The Contractor's Fee shall be shown as a single separate item. The Schedule of Values shall follow the trade divisions of the Specification so far as practicable. In order to facilitate the review of Applications for Payment, the Schedule of Values shall be submitted on forms approved by the Owner, and shall include the following: (a) Contractor's costs for Contractor's Fee, bonds and insurance, mobilization, etc., shall be listed as individual line items. (b) Contractor's costs for various construction items shall be detailed. For example, concrete work shall be subdivided into footings, grade beams, floor slabs, paving, etc. These subdivisions shall appear as individual line items. (c) On major subcontracts, such as mechanical, electrical and plumbing, the Schedule of Values shall indicate line items and amounts in detail (for example: underground, major equipment, fixtures, installation of fixtures, start up, etc.). (d) Costs for subcontract Work shall be listed without any 35 addition of Contractor's costs for overhead,profit or supervision. (e) Where payment for stored materials may be requested prior to installation,material and labor shall be listed as separate line items. (f) Sample pages from an approved Schedule of Values are included following this document. 1.11.3 Applications for Payment. 1.11.3.1 At the time specified in the Agreement, the Contractor shall submit to the Architect an itemized Application for Payment for operations completed in accordance with the Schedule of Values. Such application shall be notarized, if required, and supported by such data substantiating the Contractor's right to payment as the City or Architect may require, such as copies of requisitions from Subcontractors and material suppliers, and reflecting retainage if provided for in the Contract Documents. Unless otherwise agreed, the Contractor shall submit requests for payment through the City's project management software (ProTrak) using the APPLICATION AND CERTIFICATE FOR PAYMENT; showing in detail the amounts requested, etc., as necessary. All blank spaces must be completed and the signatures of the Contractor shall signify his attestation that said Application for Payment is true, accurate and complete. By submitting its Application for Payment, the Contractor certifies that the individual signing the application is authorized to do so. Additionally, if the Contractor prepares its Application for Payment, any supplemental supporting documentation should be provided and uploaded through the ProTrak software. Applications for Payment may not include requests for payment for portions of the Work for which the Contractor does not intend to pay to a Subcontractor or material supplier. 1.11.3.2 Unless otherwise provided in the Contract Documents, payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If approved in advance by the City, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing. Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by the Contractor with procedures satisfactory to the City to establish the City's title to such materials and equipment or otherwise protect the City's interest,and shall include the costs of applicable insurance, storage and transportation to the site for such materials and equipment stored off the site. Applications for Payment shall separate references to any and all materials and/ or equipment that require separate payment for materials stored but not installed as individual line items. These items shall be specifically identified in the Original Schedule of Values as well as where this material or equipment will be incorporated into the Work. 1.11.3.3 Upon payment by the City of the invoiced cost, title to all such materials and equipment shall irrevocably pass to the City. The Contractor warrants that title to all materials and equipment covered by an Application for Payment will 36 pass to City upon the receipt of payment by the Contractor. Such title shall be free and clear of all liens, claims, security interests or encumbrances. No work, materials or equipment covered by an Application for Payment shall be subject to an agreement under which an interest is retained or encumbrance is attached by the seller, the Contractor, or other party. 1.11.3.4 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the City no later than the time of payment. The Contractor further warrants that upon submittal of an Application for Payment all Work for which Certificates for Payment have been previously issued and payments received from the City shall, to the best of the Contractor's knowledge, information and belief,be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor, Subcontractors,material suppliers, or other persons or entities making a claim by reason of having provided labor, materials and equipment relating to the Work. Each Application for Payment shall be accompanied by a signed and notarized Partial Release of Lien/All Bills Paid affidavit specifically covering the Work performed and any materials and equipment included and billed in the accompanying Application for Payment. 1.11.4 Certificates for Payment. 1.11.4.1 The Application for Payment will be reviewed first by the Architect who will certify to the City that portion, if any, of the Application for Payment it has determined is properly due. In the event that the Architect believes that payment should be withheld, in whole or in part, it will notify the City and Contractor of the basis of this view as provided in Subparagraph 1.11.5.1. 1.11.4.2 The issuance of a Certificate for Payment will constitute a representation by the Architect to the City, based on the Architect's evaluation of the Work and the data comprising the Application for Payment, that the Work has progressed to the point indicated and that, to the best of the Architect's knowledge, information and belief, the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests and inspections, to correction of minor deviations from the Contract Documents prior to completion and to specific qualifications expressed by the Architect. The issuance of a Certificate for Payment will further constitute a representation that the Contractor is entitled to payment in the amount certified. However, the issuance of a Certificate for Payment will not be a representation that the Architect has (1) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the City to substantiate the Contractor's right to payment, or (4) made examination to ascertain how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. 1.11.4.3 The issuance of a Certificate of Payment shall constitute a recommendation to the City in respect to the amount to be paid. This recommendation is not binding on the City if City knows of other reasons under the Contract why payment should be withheld. 37 1.11.4.4 The Architect will affix his signature to the same form described in Paragraph 1.11.4.1. to signify his certification of payment provided the application is otherwise satisfactory. 1.11.5 Decisions to Withhold Certification. 1.11.5.1 The Architect may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the City, if in the Architect's opinion the representations to the City required by Paragraph 1.11.4.2. can not be made. If the Architect is unable to certify payment in the amount of the Application, the Architect will notify the Contractor and City as provided in Paragraph 1.11.4.1. If the Contractor and Architect cannot agree on a revised amount, the Architect will promptly issue a Certificate for Payment for the amount for which the Architect is able to make such representations to the City. The Architect may also withhold a Certificate for Payment or, because of subsequently discovered evidence, may nullify the whole or a part of a Certificate for Payment previously issued, to such extent as may be necessary in the Architect's opinion to protect the City from loss for which the Contractor is responsible, including loss resulting from acts and omissions described in Paragraph 1.5.5.2., because of: (a) defective Work not remedied; (b) third party claims filed or reasonable evidence indicating probable filing of such claims unless security acceptable to the City is provided by the Contractor; (c) failure of the Contractor to make payments properly to Subcontractors or for labor,materials or equipment; (d) reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; (e) damage to the City or another contractor; (f) reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or (g) persistent failure to carry out the Work in accordance with the Contract Documents. 1.11.5.2 When the above reasons for withholding certification are removed, certification will be made for amounts previously withheld. 1.11.6 Progress Payments. 1.11.6.1 After the Architect has issued a Certificate for Payment, the City shall make payment in the manner and within the time provided in the Contract Documents, and shall so notify the Architect. If the City believes the Contractor is not 38 current in its legitimate obligations to suppliers, laborers and/or Subcontractors on the Project, City may(but is not obligated to)withhold payment until it receives partial or final releases, or other reasonable proof from the Contractor that this situation does not exist. 1.11.6.2 The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the City, out of the amount paid to the Contractor on account of such Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on account of such Subcontractor's portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub- subcontractors in a similar manner. City is not obligated to monitor payments to Subcontractors or Sub-subcontractors, and nothing in this paragraph shall create any right on the part of a Subcontractor or Sub-subcontractor against City. 1.11.6.3 Neither the City nor Architect shall have an obligation to pay or to see to the payment of money to a Subcontractor or Sub-subcontractor. 1.11.6.4 Payment to material suppliers shall be treated in a manner similar to that provided in Paragraphs 1.11.6.2., 1.11.6.3. and 1.11.6.4. 1.11.6.5 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the City shall not constitute acceptance of Work not in accordance with the Contract Documents. 1.11.7 Failure of Payment. 1.11.7.1 If the City incurs any costs and expenses in curing any default of the Contractor or correcting defective Work, the City shall have an absolute right to offset such amount against the Contract Sum under this Contract, and may, in the City's sole discretion, elect either to: (1) deduct an amount equal to that to which the Owner is entitled, or (2) issue a written notice to the Contractor reducing the GMP by an amount equal to that to which the Owner is entitled. 1.11.8 Substantial Completion. 1.11.8.1 When the Contractor considers that the Work, or a portion thereof which the City agrees to accept separately, is substantially complete, the Architect and City shall review the punch list prepared by Contractor and supplement the list as necessary. 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. 1.11.8.1.1 The Contractor's superintendent shall participate in the preparation of the Contractor's punch list that is submitted to the Architect and City for supplementation. Upon receipt,the Architect shall perform a spot review to determine the adequacy and completeness of the Contractor's punch list. Should the Architect determine that the Contractor's punch list lacks sufficient detail or requires extensive supplementation,the punch list will be returned to the Contractor for further inspection and revision. The date of Substantial Completion will be delayed until the punch list submitted is a reasonable 39 representation of the work to be done. 1.11.8.1.2 Upon receipt of an acceptable Contractor's punch list, the Contractor's superintendent shall accompany the Architect, its Consultants and the City(at its discretion)during their inspections and the preparation of their supplements to the Contractor's punch list. The superintendent shall record or otherwise take note of all supplementary items. The Architect will endeavor to furnish to the Contractor typed, hand written or recorded supplements to the punch list in a prompt manner; however, any delay in the Contractor's receiving said supplements from the Architect shall not be cause for a claim for additional cost or extension of time. 1.11.8.2 When the Contractor notifies Architect that it has completed or corrected items on the punch list, the Architect will make an inspection to determine whether the Work or designated portion thereof is substantially complete. If the Architect's inspection discloses any item,whether or not included on the Contractor's punch list,which is not sufficiently complete in accordance with the Contract Documents so that the City can occupy or utilize the Work or designated portion thereof for its intended use,the Contractor shall,before issuance of the Certificate of Substantial Completion, complete or correct such item upon notification by the Architect. In such case, the Contractor shall then submit a request for another inspection by the Architect to determine Substantial Completion. Any further inspections by the Architect for the purpose of determining the Project is Substantially Complete shall be at Contractor's cost and the City may deduct such cost from any amount payable to Contractor hereunder. 1.11.8.3 When the Work or designated portion thereof is substantially complete, the Architect will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion, shall establish responsibilities of the City 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. 1.11.8.4 The Certificate of Substantial Completion shall be submitted to the City and Contractor for their written acceptance of responsibilities assigned to them in such Certificate. Upon such acceptance and consent of surety, if any, the City, in its sole discretion, may make payment of retainage, or a portion thereof as determined in the City's sole discretion, applying to such Work or designated portions thereof. Such payment shall be adjusted for Work that is incomplete or not in accordance with the requirements of the Contract Documents. 1.11.8.5 Upon final completion of all remaining outstanding or incomplete work, identified in the Certificate of Substantial Completion, the Architect shall issue a Certificate of Final Completion and Acceptance. Upon such issuance, the City shall release all remaining retainage, if any. 1.11.8.6 The Contractor shall keep all required insurance in full force, 40 and provide payment for all utilities, until the Certificate of Substantial Completion and Acceptance is issued, and all Work is accepted by the City in writing, regardless of the stated date of Substantial Completion. Such Acceptance shall not be unreasonably withheld. Contractor shall provide City a minimum of 3 days written notice of Contractor's planned utility contract termination date. 1.11.9 Partial Occupancy or Use. 1.11.9.1 The City may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement with the Contractor, provided such occupancy or use is consented to by the insurer as required under Paragraph 1.13.3.1. and authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use may commence whether or not the portion is substantially complete, provided the City and Contractor have accepted in writing the responsibilities assigned to each of them for payments,retainage,if any,security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. 1.11.9.2 Immediately prior to such partial occupancy or use, the City, Contractor and Architect shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work. 1.11.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. 1.11.10 Final Completion and Final Payment. 1.11.10.1 Upon City's receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment,the Architect will promptly make such inspection and, when the Architect finds the Work acceptable under the Contract Documents and the Contract fully performed, the Architect will promptly issue a final Certificate for Payment stating that to the best of the Architect's knowledge, information and belief, and on the basis of the Architect's on-site visits and inspections, the Work has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor and noted in the fmal Certificate is due and payable. The Architect's final Certificate for Payment will constitute a further representation that conditions listed in Paragraph 1.11.10.2. as precedent to the Contractor's being entitled to final payment have been fulfilled. Prior to final payment, the Contractor shall submit to the Architect the following completed forms: (a) Contractor's Affidavit of Payment of Debts and Claims; (b) Contractor's Affidavit of Release of Liens; 41 (c) Consent of Surety to Final Payment(if applicable); (d) Subcontractor's Unconditional Releases — each signed and notarized on a single piece of paper; (e) Maintenance and inspection manuals—three(3)sets of each bound in a 3 inch"D-slant"ring binder; (f) Final list of subcontractors, (g) one (1) complete set of marked-up copies of the Drawings and Specifications accurately showing the Project as constructed. Such Specifications and Drawings shall be marked to show all changes and modifications that have been incorporated into the Work as performed; (h) other data establishing payment or satisfaction of obligations, such as receipts,releases and waivers of liens,claims, security interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated by the City; and (i) any other"Closeout Documents"required under the Contract Documents. Documents identified as affidavits must be notarized. All manuals will contain an index listing the information submitted. The index sections will be divided and identified by tabbing each section as listed in the index. Upon request, the Architect will furnish the Contractor with blank copies of the forms listed above. Final payment, constituting the entire unpaid balance of the Contract Sum shall be paid by the City to the Contractor thirty(30) days after Substantial Completion of the Work, unless otherwise stipulated in the Certificate of Completion, provided the Contract is fully performed, and Final Certificate of Payment has been issued by the Architect. The City may accept certain portions of the Work as being complete prior to the acceptance of the entire Project. If certain areas are accepted by the City as being completed, and if the Contractor has completed all of the requirements for final payment of the portion of Work, the City may, but is not required to, release retainage for that area/portion of Work. Amounts of retainage shall be agreed upon by both City and Contractor prior to final acceptance of these areas. 1.11.10.2 If, after Substantial Completion of the Work, final completion thereof is materially delayed through no fault of the Contractor or by issuance of Change Orders affecting final completion, and the Architect so confirms, the City shall, upon application by the Contractor and certification by the Architect, and without terminating the Contract, 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 retainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Architect prior to certification of such payment. Such payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. 42 1.11.10.3 Acceptance of final payment by the Contractor shall constitute a waiver of claims by Contractor except for any Claims then pending that comply with the requirements of Paragraph 1.6.3. 1.12 Protection of Persons and Property. 1.12.1 Safety Precautions and Programs. 1.12.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all necessary safety precautions and programs in connection with the performance of the Contract. 1.12.2 Safety of Persons and Property. 1.12.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: (a) employees on the Work and other persons who may be affected thereby including but not limited to the City's employees, invitees and the general public; (b) the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub-subcontractors; and (c) other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. 1.12.2.2 The Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss. 1.12.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection,including posting danger signs and other warnings against hazards,promulgating safety regulations and notifying owners and users of adjacent sites and utilities. 1.12.2.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. When use or storage of explosives or other hazardous materials or equipment or unusual construction methods are necessary, the Contractor shall give the City and Architect reasonable advance notice of the presence or use of such materials, equipment or methods. 1.12.2.5 The Contractor shall promptly remedy damage and loss (other than damage or loss insured under property insurance required by the Contract Documents) to property referred to in Paragraphs 1.12.2.1(b). and 1.12.2.1.(c). caused in whole or in part 43 by the Contractor, a Subcontractor, a Sub-subcontractor, or anyone directly or indirectly employed by any of them,or by anyone for whose acts they may be liable and for which the Contractor is responsible under Paragraphs 1.12.2.1, except damage or loss attributable to acts or omissions of the City or Architect or anyone directly or indirectly employed by either of them, or by anyone for whose acts either of them may be liable, and not attributable to the fault or negligence of the Contractor. The foregoing obligations of the Contractor are in addition to the Contractor's obligations under Paragraph 1.5.19.6. 1.12.2.6 The Contractor shall designate a responsible member of the Contractor's organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor's superintendent unless otherwise designated by the Contractor in writing to the Owner and Architect. 1.12.2.7 The Contractor shall not load or permit any part of the construction or site to be loaded so as to endanger its safety. 1.12.2.8 Suspension of all or a portion of the Work,for any reason,shall not relieve the Contractor of its obligations under Paragraph 1.12.2. 1.12.2.9 The Contractor shall promptly report in writing to the City and Architect all accidents arising out of or in connection with the Work which cause death, personal injury, or property damage, giving full details and statement of any witnesses. In addition, if death, serious personal injuries, or serious property damages are caused, the accident shall be reported immediately by telephone or messenger to City and Architect. 1.12.2.10 The Contractor shall be responsible for the protection and security of the Work and the Project,until it receives written notification that the Substantial Completion of the Work has been accepted by the City unless otherwise provided in the Certificate of Substantial Completion. 1.12.3 Hazardous Materials. 1.12.3.1 Contractor agrees that it shall not transport to, use, generate, dispose of, or install at the Project site any Hazardous Substance (as defined in 1.12.3.1.3.), except in accordance with applicable Environmental Laws. Further, in performing the Work, Contractor shall not cause any release of Hazardous Substances into, or contamination of, the environment, including the soil, the atmosphere, any water course or ground water, except in accordance with applicable Environmental Laws (as hereafter defined at Paragraph 1.12.3.1.3). In the event Contractor engages in any of the activities prohibited in this Paragraph 1.12.3.1. to the fullest extent permitted by law, Contractor hereby indemnifies and holds City,Architect and all of their respective officers,agents and employees harmless from and against any and all claims, damages, losses, causes of action, suits, and liabilities of every kind, including, but not limited to, expenses of litigation, court costs, punitive damages and attorneys' fees, arising out of, incidental to or resulting from the activities prohibited in this Paragraph 1.12.3. 1.12.3.2 In the event Contractor encounters on the Project site any Hazardous Substance, or what Contractor may reasonably believe to be a Hazardous Substance, and which is being introduced to the Work, or exists on the Project site, in a 44 manner violative of any applicable Environmental Laws, Contractor shall immediately stop work in the area affected and report the condition to City and Architect in writing. The Work in the affected area shall not thereafter be resumed except by written authorization of City if in fact a Hazardous Substance has been encountered and has not been rendered harmless. In the event Contractor fails to stop the Work upon encountering a Hazardous Substance at the Project site, to the fullest extent permitted by law, Contractor hereby indemnifies and holds City, Architect and all of their respective officers, agents and employees harmless from and against any and all claims, damages, losses, causes of action, suits, and liabilities of every kind, including, but not limited to, expenses of litigation, court costs, punitive damages and attorneys' fees, arising out of, incidental to or resulting from Contractor's failure to stop the Work. 1.12.3.3 City and Contractor may enter into a separate agreement and/or Change Order for Contractor to remediate and/or render harmless pre-existing Hazardous Substances, but Contractor shall not be required to remediate and/or render harmless the Hazardous Substance absent such agreement. Contractor shall not be required to resume work in any area affected by the Hazardous Substance until such time as the Hazardous Substance has been remediated and/or rendered harmless. Contractor shall be solely responsible for all costs of remediation associated with Hazardous Substances imported, with or without Owner's knowledge, to the work site by Contractor or any Subcontractor. 1.12.3.4 For purposes of this Agreement, the term "Hazardous Substance" shall mean and include any element constituent, chemical, substance, compound, or mixture, which are defined as a hazardous substance by any local, state or federal law, rule, ordinance, by-law, or regulation pertaining to environmental regulation, contamination, clean-up or disclosure, including, without limitation, The Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), The Resource Conservation and Recovery Act ("RCRA"), The Toxic Substances Control Act ("TSCA"), The Clean Water Act ("CWA"), The Clean Air Act ("CAA"), the Marine Protection Research and Sanctuaries Act ("MPRSA"), The Occupational Safety and Health Act ("OSHA"), The Superfund Amendments and Reauthorization Act of 1986 ("SARA"), or other state superlien or environmental clean-up or disclosure statutes including all state and local counterparts of such laws (all such laws, rules and regulations being referred to collectively as "Environmental Laws"). It is the Contractor's responsibility to comply with Paragraph 1.12.3.1 based on the law in effect at the time its services are rendered and to comply with any amendments to those laws for all services rendered after the effective date of any such amendments. 1.12.4 Emergencies. 1.12.4.1 In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor's discretion, to prevent threatened damage, injury or loss. Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Paragraph 1.6.3. and Paragraph 1.9. 1.13 Insurance and Bonds. 45 1.13.1 Contractor's Liability Insurance. 1.13.1.1 The Contractor shall purchase and maintain insurance as shown in ATTACHMENT 1, OWNER'S INSURANCE REQUIREMENTS OF CONTRACTOR and specific project related insurance requirements as noted in ATTACHMENT 2, SPECIAL CONDITIONS OF THE AGREEMENT. 1.13.2 Certificates of Insurance. 1.13.2.1 Certificates of Insurance shall be prepared and executed by the insurance company or its authorized agent and must be provided in accordance with Section 1.13.1.1.1 and are attached as EXHIBIT A, Contractor's Insurance Certificates including Builder's Risk. 1.13.3 Property Insurance. 1.13.3.1 Partial occupancy or use in accordance with Paragraph 1.11.9. shall not commence until the insurance company or companies providing property insurance have consented to such partial occupancy or use by endorsement or otherwise. The City and the Contractor shall take reasonable steps to obtain consent of the insurance company or companies and shall, without mutual written consent, take no action with respect to partial occupancy or use that would cause cancellation, lapse or reduction of insurance. 1.13.3.2 Loss of Use Insurance. The City, at the City's option, may purchase and maintain such insurance as will insure the City against loss of use of the City's property due to fire or other hazards, however caused. 1.13.3.3 If the Contractor requests in writing that insurance for risks other than those described herein or other special causes of loss be included in the property insurance policy,the City shall,at City's option,include such insurance,and the cost thereof shall be charged to the Contractor by appropriate Change Order. 1.13.3.4 If during the Project construction period the City insures properties, real or personal or both, at or adjacent to the site by property insurance under policies separate from those insuring the Project,or if after final payment property insurance is to be provided on the completed Project through a policy or policies other than those insuring the Project during the construction period, the City shall waive all rights for damages caused by fire or other causes of loss covered by this separate property insurance. All separate policies shall provide this waiver of subrogation by endorsement or otherwise. 1.13.3.5 A loss insured under City's property insurance shall be adjusted by the City and made payable to the City for the insureds, as their interests may appear, subject to requirements of Paragraph 1.13.3. The Contractor shall pay Subcontractors their just shares of insurance proceeds received by the Contractor, and by appropriate agreements, written where legally required for validity, shall require Subcontractors to make payments to their Sub-subcontractors in similar manner. 1.13.3.6 If after such loss no other special agreement is made and unless the City terminates the Contract for convenience, replacement of damaged property shall be 46 performed by the Contractor after notification of a Change in the Work in accordance with Paragraph 1.9. 1.13.4 Performance Bond and Payment Bond. 1.13.4.1 Pursuant to Chapter 2253 of the Texas Government Code, for all public works contracts with governmental entities, performance and payment bonds are required when the Contract Amount exceeds $50,000. In the event a performance or payment bond or both is required either by law or in the City's discretion, such bonds shall be executed in accordance with all requirements of Article 7.19-1 of the Texas Insurance Code, all other applicable law, and the following: (a) The Contractor shall execute performance and payment bonds for the full Contract Amount in the forms attached hereto as Exhibit B and C. (b) The bond surety shall be authorized under the laws of the State of Texas to provide a performance and payment bond and shall have attached proof of authorization of the surety to act in the performance and payment of bonds. (c) The Contractor shall provide original, sealed, and complete counterparts of the executed bonds in the forms required by the Contract Documents, which are attached as Exhibit B and C, together with valid original powers of attorney, at the time of execution of this Agreement and prior to the commencement of Work. Copies of the executed bonds shall be attached hereto as Exhibit B and C. (d) The performance and payment bonds shall remain in effect for a period of one (1) year after Final Completion of the Work and shall be extended for any warranty work to cover the warranty period. (e) If at any time during the execution of this Agreement in the required period thereafter, the bond or bonds become invalid or ineffective for any reason, the Contractor shall promptly supply within ten (10) days such other bond or bonds,which bond or bonds shall assure performance or payment as required. 1.13.4.2 The Contractor may make such changes and alterations as the City may require in the Work or any part thereof without affecting the validity of this Agreement and any accompanying bond. If such changes or alterations diminish the quantity of the Work to be done,they shall not constitute the basis for any claim for damages or anticipated profits. If the City makes changes or alterations that render useless any Work already done or material already used in said Work, then the City shall compensate the Contractor for any material or labor so used, and for any actual loss occasioned by such change due to actual expenses incurred in preparation for the work as originally planned. 1.14 Uncovering and Correction of Work. 1.14.1 Uncovering of Work. 47 1.14.1.1 If a portion of the Work is covered contrary to the Architect's request, required inspection, or contrary to requirements in the Contract Documents, the Work must, if required in writing by the Architect, be uncovered for the Architect's examination or inspection of the work and be replaced at the Contractor's expense without change in the Contract Time.' 1.14.1.2 If a portion of the Work has been covered which the Architect has not specifically requested to examine prior to its being covered, the Architect may request to see such Work and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order, be at the City's expense. If such Work is not in accordance with the Contract Documents, correction shall be at the Contractor's expense. 1.14.2 Correction of Work. 1.14.2.1 Before or After Substantial Completion. 1.14.2.1.1 The Contractor shall promptly correct Work rejected by the Architect or failing to conform to the requirements of the Contract Documents, whether discovered before or after Substantial Completion and whether or not fabricated, installed or completed. Costs of correcting such rejected Work, including additional testing and inspections and compensation for the Architect's services and expenses made necessary thereby, shall be at the Contractor's expense. 1.14.2.2 After Substantial Completion. 1.14.2.2.1 In addition to the Contractor's obligations under Paragraph 1.5.7., if, within one year after the date of Substantial Completion of the Work or designated portion thereof or after the date for commencement of warranties established under Paragraph 1.11.9.1., or by terms of an applicable special warranty required by the Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice from the City to do so unless the City has previously given the Contractor a written acceptance of such particular condition. The City shall give such notice promptly after discovery of the condition. If the Contractor fails to correct nonconforming Work within a reasonable time during that period after receipt of notice from the City or Architect, the City may correct it in accordance with Paragraph 1.4.5. The "prompt" correction of defective work by the Contractor after receipt of notification from the City as described above shall be defined as follows: (a) The Contractor shall make written response to the City within twenty-four(24)hours of receipt of the City's notice, acknowledging receipt of the notice and providing the proposed schedule to conduct corrective work. Corrective work shall not interfere with the City's normal operation and use of the Project, unless expressly approved by the City; 48 (b) For corrective work which is not a life safety issue or which will not, by the nature of the defect, cause subsequent damage to the Project, corrective work shall be completed within fourteen(14)calendar days; (c) For corrective work which by its nature may cause subsequent damage to the Project, corrective work required to prevent subsequent damage shall be completed within twenty-four (24) hours, and if such work is a temporary repair,permanent repair of the corrective work shall be completed within seven (7) calendar days. The Contractor shall also correct all subsequent damage caused by such corrective work; (d) For corrective work which affects services to, and ordinary use of the Project, corrective work shall be completed within twenty-four (24) hours, and if such work is a temporary repair, permanent repair of the corrective work shall be completed within seven(7) calendar days; and (e) The time frames stated above for completion of permanent corrective work shall be equitably adjusted as required for legitimate delays caused by weather delays, material acquisition and other factors beyond the Contractor's direct control. 1.14.2.2.2 The one-year period for correction of Work shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual performance of the Work. 1.14.2.2.3 These obligations under Subparagraph 1.14.2.2. shall survive acceptance of the Work under the Contract and termination of the Contract. The period for any Work corrected pursuant to Paragraph 1.14.2. shall be extended for a period of one year after the date said corrective work is completed. 1.14.2.3 The Contractor shall remove from the site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the City. 1.14.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction, whether completed or partially completed, of the City or separate contractors caused by the Contractor's correction or removal of Work which is not in accordance with the requirements of the Contract Documents. 1.14.2.4.1 Where non-conforming Work is found, the entire area of Work involved shall be corrected unless the Contractor can completely define the limits to the Architect's satisfaction. Additional testing, sampling, or inspecting needed to define nonconforming Work shall be at the Contractor's expense, and performed by the City's testing laboratory if such services are reasonably required by the Architect. All corrected Work shall be retested at the Contractor's expense. Extra architectural or other services 49 required to analyze non-conforming Work shall be paid for by the Contractor. 1.14.2.5 Nothing contained in Paragraph 1.14.2. shall be construed to establish a period of limitation with respect to other obligations which the Contractor might have under the Contract Documents. Nothing contained in Paragraph 1.14.2. is intended to limit or modify any obligations under the law or under the Contract Documents, including any warranty obligations, expressed or implied. 1.14.3 Acceptance of Nonconforming Work. 1.14.3.1 If the Owner prefers to accept Work which is not in accordance with the requirements of the Contract Documents, the City may do so instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and equitable. Such adjustment shall be effected whether or not final payment has been made. 1.15 Miscellaneous Provisions. 1.15.1 Governing Law. 1.15.1.1 This Contract and any disputes related to the Work shall be governed by the law of the State of Texas, and any disputes shall be resolved in Brazoria County, Texas. 1.15.2 Successors and Assigns. 1.15.2.1 The City and Contractor 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. Contractor shall not assign the Contract as a whole, or in part, without written consent of the City. 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. 1.15.3 Written Notice. 1.15.3.1 Written notice shall be deemed to have been served only if the writing is delivered to the addressees set out below, or to such other address as has been previously clearly identified in writing by the addressee, or if delivered by mail or in form of electronic transmission to that office,or sent by registered or certified mail to that address. City: City of Pearland 3519 Liberty Drive Pearland, Texas 77582 Attn: Engineering& Capital Projects Contractor: 50 1.15.4 Rights and Remedies. 1.15.4.1 No action or failure to act by the City, Architect or Contractor shall constitute a waiver of a right or duty afforded them under the Contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in writing. 1.15.5 Tests and Inspections. 1.15.5.1 Tests, inspections and approvals of portions of the Work required by the Contract Documents or by laws, ordinances, rules, regulations or orders of public authorities having jurisdiction shall be made at appropriate times. Unless otherwise provided,the Contractor shall make scheduling arrangements for such tests, inspections and approvals with an independent testing laboratory employed by the City for this purpose, or with the appropriate public authority. City shall bear the normal costs of these services, but not any excess costs attributable to Contractor-caused scheduling problems, or other Contractor error. The Contractor shall give the Architect timely notice of when and where tests and inspections are to be made so the Architect may observe such procedures. 1.15.5.2 If the Architect, City or public authorities having jurisdiction determine that portions of the Work require additional testing, inspection or approval not included under Paragraph 1.15.5.1., the Architect will, upon written authorization from the City, instruct the Contractor to make arrangements for such additional testing, inspection or approval by an entity acceptable to the City, and the Contractor shall give timely notice to the Architect of when and where tests and inspections are to be made so that the Architect may be present for such procedures. Such costs, except as provided in Paragraph 1.15.5.3., shall be at the City's expense. 1.15.5.3 If such procedures for testing, inspection or approval under Paragraphs 1.15.5.1 and 1.15.5.2. reveal failure of the portions of the Work to comply with requirements established by the Contract Documents, all costs made necessary by such failure including those of repeated procedures and compensation for the Architect's services and expenses shall be at the Contractor's expense. Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be kept and logged by the Contractor in ProTrak. All testing reports will be made available to all parties. 1.15.5.4 If the Architect is to observe tests, inspections or approvals required by the Contract Documents, the Architect will do so promptly and, where practicable, at the normal place of testing. 1.15.5.5 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work. 1.16 Termination or Suspension of the Contract. 51 1.16.1 Termination by the Contractor. 1.16.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of ninety(90) consecutive days through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, for any of the following reasons: (a) issuance of an order of a court or other public authority having jurisdiction which requires all Work to be stopped; (b) an act of government, such as a declaration of national emergency which requires all Work to be stopped; or (c) because the Architect has not issued a Certificate for Payment and has not notified the Contractor of the reason for withholding certification as provided in Paragraph 1.11.4.1., or because the City has not made payment on a Certificate for Payment within the time stated in the Contract Documents, provided notice is given as required under Subparagraph 1.11.4.1. 1.16.1.2 The Contractor may terminate the Contract if, through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, repeated suspensions, delays or interruptions of the entire Work by the City as described in Paragraph 1.16.3. constitute in the aggregate more than 100 percent of the total number of days scheduled for completion, or 120 days in any 365- day period,whichever is less. 1.16.1.3 If the Work is stopped for ninety(90)consecutive days for any reason described in Paragraph 1.16.1.1. or 1.16.1.2.,the Contractor may,upon fourteen(14) days' written notice to the City and Architect, terminate the Contract and recover from the City payment for Work. 1.16.1.4 Notwithstanding anything to the contrary contained herein or in the other Contract Documents, the City shall not be responsible for damages for loss of anticipated profits on Work not performed on account of any termination described in Subparagraphs 1.16.1.1., 1.16.1.2., and 1.16.1.3. 1.16.2 Termination by the Owner for Cause. 1.16.2.1 The City may terminate the Contract if the Contractor: (a) refuses or fails to supply enough properly skilled workers or proper materials; (b) fails to make payment to Subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the Subcontractors; (c) disregards laws, ordinances, or rules, regulations or orders 52 of a public authority having jurisdiction; (d) otherwise is guilty of substantial breach of a provision of the Contract Documents; (e) fails to furnish the City, upon request, with assurances satisfactory to the City evidencing the Contractor's ability to complete the Work in compliance with all the requirements of the Contract Documents; (f) fails to proceed continuously and diligently with the construction and completion of the Work, except as permitted under the Contract Documents; or (g) fails to provide all required policies of insurance and/or bonds. 1.16.2.2 When any of the above reasons exist, the City may without prejudice to any other rights or remedies of the City and after giving the Contractor and the Contractor's surety, if any, seven days written notice of the specific default by Contractor and an opportunity to cure said default. If Contractor fails to cure default, after an additional seven day notice the Owner may terminate employment of the Contractor and may, subject to any prior rights of the surety: (a) take possession of the site and of all materials, equipment, tools,and construction equipment and machinery thereon owned by the Contractor; (b) accept assignment of subcontracts pursuant to Paragraph 1.7.4; (c) Make demand upon Contractor's surety to complete the Work; and (d) fmish the Work by whatever reasonable method the City may deem expedient. 1.16.2.3 When the City terminates the Contract for one of the reasons stated in Paragraph 1.16.2.1, the Contractor shall not be entitled to receive further payment until the Work is finished. 1.16.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including compensation for the Architect's services and expenses made necessary thereby, and other damages incurred by the City and not expressly waived, including attorney's fees, such excess shall be paid to the Contractor. If such costs and damages exceed the unpaid balance,the Contractor shall pay the difference to the City. This obligation for payment shall survive termination of the Contract. 1.16.2.5 If a Performance Bond has been furnished and the Contractor is declared by the City to be in default under the Contract, the Surety shall promptly, in no event to exceed 30 days, remedy the default by commencing and continuing to perform the remaining work of the Contract in accordance with its terms and conditions, or by obtaining a bid or bids in accordance with its terms and conditions. At City's election, upon determination by the City and the Surety of the lowest responsible bidder, the Surety will complete the Work or will arrange for a Contract between such bidder and the City, and 53 make available sufficient funds to pay the cost of completion less the balance of the Contract Sum, but not exceeding the Penal Sum of the bond. The phrase "balance of the Contract Sum"as used herein shall mean the total amount payable by the City to the Contractor under the Contract, including any adjustments thereto made in accordance with the terms and conditions of this Contract, and amendments thereto less the amount previously paid by the City to the Contractor. 1.16.3 Suspension by the Owner for Convenience. 1.16.3.1 The City may, without cause, and with seven days written notice, order the Contractor in writing to suspend, delay or interrupt the Work in whole or in part for such period of time as the City may determine. 1.16.3.2 If City suspends the Contractor's performance for convenience, an adjustment shall be made to the Contract Sum as calculated under Paragraph 1.9 and shall include profit. No adjustment shall be made to the extent: (a) that performance is, was or would have been so suspended, delayed or interrupted by another cause for which the Contractor is responsible; or (b) that an equitable adjustment is made or denied under another provision of the Contract. 1.16.4 Termination by the Owner for Convenience. 1.16.4.1 The City may, at any time, terminate the Contract, in whole or in part, with seven days written notice, for the City's convenience and without cause. 1.16.4.2 Upon receipt of written notice from the City of such termination for the City's convenience, the Contractor shall: (a) cease operations as directed by the City in the notice; (b) take actions necessary, or that the City may direct, for the protection and preservation of the Work; and (c) except for Work not so terminated and/or directed to be performed prior to the effective date of termination stated in the notice, terminate all existing subcontracts and purchase orders and enter into no further subcontracts and purchase orders. 1.16.4.3 In the event of a termination under Paragraph 1.16.4, the Contractor shall be paid the value of its Work to the date of termination plus such sums as are reasonably required to cover the cost to Contractor, its Subcontractors and suppliers, to shut down the Project. City shall not be responsible for damages for loss of anticipated profits on Work not performed on account of any termination. 1.16.4.4 Upon determination by a court of competent jurisdiction that termination of the Contract, pursuant to Paragraph 1.16.2 was wrongful, such termination 54 will be deemed converted to a termination for convenience pursuant to Paragraph 1.16.4, and Contractor's remedy for wrongful termination shall be limited to the recovery of the payments permitted for termination for convenience as set forth in Paragraph 1.16.4. END OF GENERAL PROVISIONS SECTION 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES The Construction Manager shall perform the services described in this Paragraph. The services to be provided under Paragraphs 2.1 and 2.2 constitute the Preconstruction Phase services. If the City and Construction Manager agree, the Construction Phase may commence before the Preconstruction Phase is completed, in which case both phases will proceed concurrently. 2.1 Preconstruction Phase. 2.1.1 Preliminary Evaluation. The Construction Manager shall provide a preliminary evaluation of the City's program and Project budget requirements, each in terms of the other. 2.1.2 Consultation. The Construction Manager with the Architect shall jointly schedule and attend regular meetings with the City. The Construction Manager shall consult with the City and Architect regarding site use and improvements and the selection of materials, building systems and equipment. The Construction Manager 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 Project Schedule. When Project requirements described in Paragraph 3.1.1 have been sufficiently identified, the Construction Manager shall prepare, and periodically update, a preliminary Project schedule for the Architect's review and the City's approval. The Construction Manager shall coordinate and integrate the preliminary Project schedule with the services and activities of the City, Architect and Construction Manager. As design proceeds, the preliminary Project schedule shall be updated to indicate proposed activity sequences and durations, milestone dates for receipt and approval of pertinent information, submittal of a Guaranteed Maximum Price proposal, preparation and processing of shop drawings and samples, delivery of materials or equipment requiring long-lead-time procurement, City's occupancy requirements showing portions of the Project having occupancy priority, and proposed date of Substantial Completion. If preliminary Project schedule updates indicate that previously approved schedules may not be met, the Construction Manager shall make appropriate recommendations to the City and Architect. 2.1.4 Phased Construction. The Construction Manager shall make recommendations to the City and Architect regarding the phased issuance of 55 Drawings and Specifications to facilitate phased construction of the Work, if such phased construction is appropriate for the Project, taking into consideration such factors as economies, time of performance, availability of labor and materials, and provisions for temporary facilities. 2.1.4.1 Preliminary Cost Estimates. When the City has sufficiently identified the Project requirements and the Architect has prepared other basic design criteria, the Construction Manager shall prepare,for the review of the Architect and approval of the City, a preliminary cost estimate utilizing area,volume or similar conceptual estimating techniques. 2.1.4.1.1 When Schematic Design Documents have been prepared by the Architect and approved by the City, the Construction Manager shall prepare, for the review of the Architect and approval of the City, a more detailed estimate with supporting data. During the preparation of the Design Development Documents, the Construction Manager shall update and refine this estimate at appropriate intervals agreed to by the City, Architect and Construction Manager. 2.1.4.1.2 When Design Development Documents have been prepared by the Architect and approved by the City, the Construction Manager shall prepare a detailed estimate with supporting data for review by the Architect and approval by the Owner. During the preparation of the Design Development Documents (DD's), the Construction Manager shall provide an initial cost estimate at 60% DD's and update and refine this estimate when the Construction Documents (CD's) are fifty percent (50%) complete and again at ninety percent (90%) complete, and at any other appropriate intervals agreed to by the City, Architect and Construction Manager necessary to develop a GMP for the project. These cost estimate updates shall incorporate the latest design changes, alternate materials and processes as required to provide a Guaranteed Maximum Price that will meet the Owners stated project budget. Should the estimates of cost of the work exceed the latest approved project budget the Construction Manager shall inform the Owner and Architect and make recommendations for corrective action. 2.1.4.2 Subcontractors and Suppliers. The Construction Manager shall seek to develop subcontractor interest in the Project and shall furnish to the City and Architect for their information a list of possible subcontractors, including suppliers who are to furnish materials or equipment fabricated to a special design, from whom proposals will be requested for each principal portion of the Work. The Architect will promptly reply in writing to the Construction Manager if the Architect or City know of any objection to such subcontractor or supplier. The receipt of such list shall not require the City or Architect to investigate the qualifications of proposed subcontractors or suppliers, nor shall it waive the right of the City or Architect later to object to or reject any proposed subcontractor or supplier. 2.1.4.3 Long-Lead-Time Items. The Construction Manager shall recommend to the City and Architect a schedule for procurement of long-lead-time items which will constitute 56 part of the Work as required to meet the Project schedule. If such long-lead-time items are procured by the City, they shall be procured on terms and conditions acceptable to the Construction Manager. Upon the City's acceptance of the Construction Manager's Guaranteed Maximum Price proposal, all contracts for such items shall be assigned by the City to the Construction Manager, who shall accept responsibility for such items as if procured by the Construction Manager. The Construction Manager shall expedite the delivery of long-lead-time items. 2.1.4.4 Extent of Responsibility. The Construction Manager does not warrant or guarantee estimates and schedules except as may be included as part of the Guaranteed Maximum Price. The recommendations and advice of the Construction Manager concerning design alternatives shall be subject to the review and approval of the City and the City's professional consultants. It is not the Construction Manager'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 Construction Manager recognizes that portions of the Drawings and Specifications are at variance therewith, the Construction Manager shall promptly notify the Architect and City in writing. 2.1.4.5 Equal Employment Opportunity and Affirmative Action. The Construction Manager shall comply with applicable laws, regulations and special requirements of the Contract Documents regarding equal employment opportunity and affirmative action programs. See attached Title VI Nondiscrimination Assurances attached hereto as ATTACHMENT 1 2.2 Guaranteed Maximum Price Proposal. 2.2.1 When the Drawings and Specifications are sufficiently complete, but in no case later than 90% Construction Documents, the Construction Manager shall propose a Guaranteed Maximum Price,which shall be the sum of the estimated Cost of the Work and the Construction Manager's Fee along with any identified Allowances as have been determined to be necessary. Provided, however, Construction Manager understands such estimates are relied upon by the City in making various Project determinations, and, therefore, should Construction Manager's Guaranteed Maximum Price proposal exceed the City's applicable budget by more than 2.5%, all pre-construction services rendered thereafter to render the Project within 2.5% of the budget by Construction Manager shall be at its cost. 2.2.2 As the Drawings and Specifications may not be fmished at the time the Guaranteed Maximum Price proposal is prepared, the Construction Manager shall provide in the Guaranteed Maximum Price for further development of the Drawings and Specifications by the Architect that is consistent with the Contract Documents and reasonably inferable therefrom. 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 separately identify,the Construction Manager's Contingency, a sum not to exceed three percent(2.5%) of the Guaranteed Maximum Price, an amount established by the Owner for the Construction Manager's use, subject to Owner's approval, to cover costs arising under Paragraph 2.2.2 and other costs 57 which are properly reimbursable as Cost of the Work but not the basis for a Change Order. Upon Contractor's completion of the Project, all unused portions of the Construction Manager's Contingency and those from the Guaranteed Maximum Price shall be set aside as cost savings for the benefit of the Owner. 2.2.3.1.1 Basis of Guaranteed Maximum Price. The Construction Manager shall include with the Guaranteed Maximum Price proposal a written statement of its basis,which shall include: (a) A list of the Drawings and Specifications, including all addenda thereto and the Conditions of the Contract, which were used in preparation of the Guaranteed Maximum Price proposal. (b) A list of the clarifications and assumptions made by the Construction Manager in the preparation of the Guaranteed Maximum Price proposal to supplement the information contained in the Drawings and Specifications. (c) The proposed Guaranteed Maximum Price, including a statement of the estimated cost organized by trade categories, contingency, and other items and the Fee that comprise the Guaranteed Maximum Price. (d) The Date of Substantial Completion upon which the proposed Guaranteed Maximum Price is based, and a schedule of the Construction Documents issuance dates upon which the date of Substantial Completion is based. 2.2.3.2 The Construction Manager shall meet with the City and Architect to review the Guaranteed Maximum Price proposal and the written statement of its basis. In the event that the City or Architect discover any inconsistencies or inaccuracies in the information presented, they shall promptly notify the Construction Manager, who shall make appropriate adjustments to the Guaranteed Maximum Price proposal, its basis, or both. This proposal shall provide the Owner no less than ten days to accept the GMP without invalidating the proposal or any of its terms. 2.2.3.3 Unless the City accepts the Guaranteed Maximum Price proposal in writing on or before the date specified in the proposal for such acceptance and so notifies the Construction Manager, the Guaranteed Maximum Price proposal shall not be effective without written acceptance by the Construction Manager. 2.2.3.4 Prior to the City's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a Notice to Proceed, the Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work, except as the City may specifically authorize in writing. 2.2.3.5 Upon acceptance by the City of the Guaranteed Maximum Price proposal, the Guaranteed Maximum Price and its basis shall be set forth in Amendment No. 1. The Guaranteed Maximum Price 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. 58 2.2.3.6 The City shall authorize and cause the Architect to revise the Drawings and Specifications to the extent necessary to reflect the agreed-upon assumptions and clarifications contained in Amendment No. 1. Such revised Drawings and Specifications shall be furnished to the Construction Manager in accordance with schedules agreed to by the City, Architect and Construction Manager. The Construction Manager shall promptly notify the Architect and City if such revised Drawings and Specifications are inconsistent with the agreed- upon assumptions and clarifications. 2.3 Construction Phase. 2.3.1 General. 2.3.1.1 The Construction Phase shall commence on: a) the City's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a Notice to Proceed, and b) the City's first authorization to the Construction Manager to: 1. award a subcontract, or 2. undertake construction Work with the Construction Manager's own forces, or 3. issue a purchase order for materials or equipment required for the Work. 2.4 Administration. 2.4.1 Those portions of the Work that the Construction Manager does not customarily perform with the Construction Manager's own personnel shall be performed under subcontracts or by other appropriate agreements with the Construction Manager. The Construction Manager shall obtain bids in accordance with the applicable requirements of Chapter 2269 of the Texas Government Code from Subcontractors and from suppliers of materials or equipment fabricated to a special design for the Work from the list previously reviewed and, after analyzing such bids, shall deliver such bids to the City and Architect. The City will then determine,with the advice of the Construction Manager, which bids will be accepted. The City may designate specific persons or entities from whom the Construction Manager shall obtain bids; however, if the Guaranteed Maximum Price has been established, the City may not prohibit the Construction Manager from obtaining bids from other qualified bidders. The Construction Manager shall not be required to contract with anyone to whom the Construction Manager has reasonable objection. 2.4.2 If the Guaranteed Maximum Price has been established and a specific bidder among those whose bids are delivered by the Construction Manager to the 59 City and Architect (1) is recommended to the City by the Construction Manager; (2) is qualified to perform that portion of the Work; and (3) has submitted a bid which conforms to the requirements of the Contract Documents without reservations or exceptions, but the City requires that another bid be accepted, then the Construction Manager may require that a change in the Work be issued to adjust the Contract Time and the Guaranteed Maximum Price by the difference between the bid of the person or entity recommended to the City by the Construction Manager and the amount of the subcontract or other agreement actually signed with the person or entity designated by the City. 2.4.3 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated to a special design shall conform to the payment provisions of Paragraphs 7.1.8 and 7.1.9 and shall not be awarded on the basis of cost plus a fee without the prior consent of the City. 2.4.4 The Construction Manager shall schedule and conduct meetings with appropriate Subcontractors at which the City, Architect, Construction Manager and appropriate Subcontractors can discuss the status of the Work. The Construction Manager shall prepare and promptly distribute meeting minutes. 2.4.5 Promptly after the City's acceptance of the Guaranteed Maximum Price proposal, the Construction Manager shall prepare a schedule in accordance with Paragraph 1.5.11, General Conditions, including the Owner's occupancy requirements. 2.4.6 The Construction Manager shall provide monthly written reports to the City and Architect on the progress of the entire Work. The Construction Manager shall maintain a daily log containing a record of weather, Subcontractors working on the site, number of workers, Work accomplished, problems encountered and other similar relevant data as the City may reasonably require. The log shall be available to the City and Architect. The Construction Manager shall promptly inform City in writing of any circumstance or development that is likely to delay Substantial Completion of the Project in accordance with the schedule. 2.4.7 The Construction Manager 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 Construction Manager shall identify variances between actual and estimated costs and report the variances to the City and Architect at regular intervals. 2.4.8 Professional Services. Paragraph 1.5.14.10, General Conditions shall apply to both the Preconstruction and Construction Phase. 2.4.9 Hazardous Materials. Paragraph 1.12.3, General Conditions shall apply to both the Preconstruction and Construction Phases. SECTION 3 OWNER'S RESPONSIBILITIES. 60 3.1 Information and Services. 3.1.1 The Owner shall provide information in a timely manner regarding the requirements of the Project, including a program which sets forth the City'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 City shall establish and update an overall budget for the Project, based on consultation with the Construction Manager and Architect, which shall include contingencies for changes in the Work and other costs which are the responsibility of the City. 3.1.3 Structural and Environmental Tests. Surveys and Reports. In the Preconstruction Phase, the City shall furnish the following with reasonable promptness and at the City's expense. Except to the extent that the Construction Manager knows of any inaccuracy, or should have reasonably discovered such error or inaccuracy, the Construction Manager shall be entitled to rely upon the accuracy of any such information, reports, surveys, drawings and tests described in Paragraphs 3.1.3.1 through 3.1.3.4 but shall exercise customary precautions relating to the performance of the Work. 3.1.3.1 Reports, surveys, drawings and tests concerning the conditions of the site which are required by law. 3.1.3.2 Surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. 3.1.3.3 The services of a geotechnical engineer when such services are requested by the Construction Manager and are reasonably required by the scope of the Project, as determined by the City or Architect. 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. 3.1.3.4 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. 3.1.3.5 The services of other consultants when such services are reasonably required by the scope of the Project, as determined by the City or Architect, and are requested by the Construction Manager. 3.2 Owner's Designated Representative. The City shall designate in writing City's Representative who shall have express authority, subject to the limitations set forth in the General Conditions, to bind the City with respect to all matters requiring 61 the City's approval or authorization. This City's Representative shall have the authority to make decisions on behalf of the City 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 Construction Manager. Except as otherwise provided in Paragraph 1.6.2.1, General Conditions, the Architect does not have such authority. 3.3 Architect. The City shall retain an Architect to provide Basic Services, including normal structural, mechanical and electrical engineering services. The City must authorize, in writing, and cause the Architect to provide additional service, requested by the Construction Manager which must necessarily be provided by the Architect for the Preconstruction and Construction Phases of the Work. Construction Manager has no authority to request services from the Architect on the City's behalf. Such services shall be provided in accordance with time schedules agreed to by the City, Architect and Construction Manager. Upon request of the Construction Manager, the City shall furnish to the Construction Manager a copy of the City's Agreement with the Architect. SECTION 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES. The City shall compensate and make payments to the Construction Manager for Preconstruction Phase services as follows: 4.1 Compensation. 4.1.1 For the services described in Paragraphs 2.1 and 2.2, the Construction Manager's compensation shall be calculated as follows: Pre-Construction Fee: $10,000.00 (Ten Thousand and No/ 100s) 4.1.1 If compensation is based on a multiple of Direct Personnel Expense, Direct Personnel Expense is defined as the direct salaries of the Construction Manager's personnel engaged in the Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, pensions and similar contributions and benefits. 4.2 Payments. 4.2.1 Payments shall be made monthly following presentation of the Construction Manager's invoice and, where applicable, shall be in proportion to services performed. 4.2.2 Payments are due and payable thirty(30) calendar days from the date the correct and approved Construction Manager's invoice is received by the Owner. 62 4.2.3 The City stipulates that it is an exempt organization as defined by the Limited Sales, Excise and Use Tax Act and, as such, is exempt from the payment of the sales tax on materials and supplies used in the performance of this Contract. The Construction Manager shall issue exemption certificates to its Subcontractors and suppliers in lieu of said sales tax for all such materials and supplies, complying with all applicable State Comptroller's Rulings. SECTION 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES The City shall compensate the Construction Manager for Construction Phase services as follows: General Conditions: $427,914.00 Four Hundred Twenty Seven Thousand Nine Hundred Fourteen Dollars and No/ 100s 5.1 Compensation. 5.1.1 For the Construction Manager's performance of the Work as described in Paragraph 2.3, the City shall pay the Construction Manager in current funds the Contract Sum consisting of the Cost of the Work as defined in Paragraph 7 and the Construction Manager's Fee determined as follows: Construction Manager At Risk Fee (as a Percentage): 2.85% 5.2 Guaranteed Maximum Price. 5.2.1 The sum of the Cost of the Work and the Construction Manager's Fee for the Work are guaranteed by the Construction Manager not to exceed the amount provided in Amendment No. 1, 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 is referred to in the Contract Documents as the Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Construction Manager without reimbursement by the City. In the event the Cost of Work plus the Construction Manager's Fee is less than the Guaranteed Maximum Price ("GMP"), the savings shall accrue one hundred percent(100%)to the City. 5.3 Chances in the Work. 5.3.1 Adjustments to the Guaranteed Maximum Price on account of changes in the Work subsequent to the execution of Amendment No. 1 may be determined by any of the methods listed in Paragraph 1.9.2.2, General Conditions, subject to the limitations provided in the General Conditions. 5.3.1.1 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 Paragraph 1.9.2.2 (c), General Conditions and the term "costs" as 63 used in Paragraph 1.9.3.6, General Conditions shall have the meanings assigned to them in the General Conditions and shall not be modified by this Paragraph 5. Adjustments to subcontracts awarded with the City's prior consent on the basis of cost plus a fee shall be calculated in accordance with the terms of those subcontracts. 5.3.1.2 In calculating adjustments to the Contract, the terms "cost" and "costs" as used in the above-referenced provisions of the General Conditions shall mean the Cost of the Work as defined in Paragraph 6 of this Agreement, and the term "and a reasonable allowance for overhead and profit" shall mean the Construction Manager's Fee as defined in Paragraph 5.1.1 of this Agreement. 5.3.1.3 If no specific provision is made in Paragraph 5.1.1 for adjustment of the Construction Manager's Fee in the case of changes in the Work, or if the extent of such changes is such, in the aggregate, that application of the adjustment provisions of Paragraph 5.1.1 will cause substantial inequity to the Owner or Construction Manager, the Construction Manager's Fee shall be equitably adjusted on the basis of the Fee established for the original Work. SECTION 6 COST OF THE WORK FOR CONSTRUCTION PHASE. 6.1 Costs To Be Reimbursed. 6.1.1The term "Cost of the Work" shall mean costs necessarily incurred by the Construction Manager in the proper performance of the Work. Such costs shall be at rates not higher than those customarily paid at the place of the Project except with prior consent of the City. The Cost of the Work shall include only the items set forth in this Paragraph 6. 6.1.1.1 Labor Costs. 6.1.1.1.1 Wage Rates. Pursuant to Section 2258.023(a) of the Texas Government Code, wage rates paid by the Contractor and any subcontractor on this Project shall be not less than the general prevailing rate of per diem wages for work of a similar character in this locality as specified in the schedule of general prevailing rates of per diem wages attached hereto as ATTACHMENT 3. 6.1.1.1.2 Statutory Penalty. Pursuant to Section 2258.023(b) of the Texas Government Code, if the Contractor or any subcontractor violates the requirements of this section the Contractor or subcontractor as the case may be shall pay the City Sixty Dollars ($60.00) for each worker employed for each calendar day or part of the day that the worker is paid less than the stipulated wage rates. 6.1.1.1.3 Wages of construction workers directly employed by the Construction Manager to perform the construction of the Work at the site or, with the Owner's agreement,at off-site workshops. 6.1.1.1.4 Wages or salaries of the Construction Manager's supervisory 64 and administrative personnel when stationed at the site with the Owner's agreement. See attached Position/Rate table No. Description Rate 1 Project Executive $115.00 per hour 2 Project Manager $74.00 per hour 3 Estimator $98.00 per hour 4 Safety/Field Operation $96.00 per hour Manager 5 Lead Superintendent $65.00 per hour 6 Assistant Superintendent $46.00 per hour 7 Project Engineer $41.00 per hour 8 Quality Control Inspector $68.00 per hour 9 Contract Administrator $33.00 per hour 10 BIM Coordinator $55.00 per hour 11 IT Coordinator $95.00 per hour 12 Labor Burden 42.5 6.1.1.1.5 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. Further, the time for performance does not necessitate overtime work and the City shall not be required to reimburse the "premium time" portion of any overtime payments by Contractor, unless otherwise approved, in writing, in advance by the City. 6.1.1.1.6 Costs paid or incurred by the Construction Manager for taxes, insurance, contributions, assessments and benefits required by law or collective bargaining agreements, and, for personnel not covered by such agreements, customary benefits such as sick leave,medical and health benefits,holidays,vacations and pensions,provided that such costs are based on wages and salaries included in the Cost of the Work under Paragraphs 6.1.1.1.1 through 6.1.1.1.4. 65 6.1.1.1.7 Subcontract Costs. Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the subcontracts. 6.1.1.1.8 Costs of Materials and Equipment Incorporated in the Completed Construction. (a) Costs, including transportation, of materials and equipment incorporated or to be incorporated in the completed construction. (b) Costs of materials described in the preceding Paragraph 6.1.4.(a) 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 City at the completion of the Work or, at the City's option, shall be sold by the Construction Manager; amounts realized, if any, from such sales shall be credited to the City as a deduction from the Cost of the Work. 6.1.1.1.9 Costs of Other Materials and Equipment, Temporary Facilities and Related Items. (a) Costs, including transportation, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, machinery, equipment, and hand tools not customarily owned by the construction workers, which are provided by the Construction Manager at the site and fully consumed in the performance of the Work; and cost less salvage value on such items if not fully consumed, whether sold to others or retained by the Construction Manager. Cost for items previously used by the Construction Manager shall mean fair market value. (b) Rental charges for temporary facilities, machinery, equipment and hand tools not customarily owned by the construction workers, which are provided by the Construction Manager at the site, whether rented from the Construction Manager or others, and costs of transportation, installation,minor repairs and replacements, dismantling and removal thereof. Rates and quantities of equipment rented shall be subject to the City's prior approval. (c) Costs of removal of debris from the site. (d) Reproduction costs, costs of telegrams, facsimile transmissions and long-distance telephone calls, postage and express delivery charges,telephone at the site and reasonable petty cash expenses of the site office. (e) That portion of the reasonable travel and subsistence expenses of the Construction Manager's personnel incurred while traveling in discharge of duties connected with the Work. 66 6.1.1.1.10 Miscellaneous Costs. (a) That portion directly attributable to this Contract of premiums for insurance and bonds. (b) Fees and assessments for the building permit and for other permits, licenses and inspections for which the Construction Manager is required by the Contract Documents to pay. (c) 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 Paragraph 6.1.8. (d) Royalties and license fees paid for the use of a particular design, process or product required by the Contract Documents; the cost of defending suits or claims for infringement of patent or other intellectual property rights arising from such requirement by the Contract Documents; payments made in accordance with legal judgments against the Construction Manager resulting from such suits or claims and payments of settlements made with the City's consent; provided, however, that such costs of legal defenses, judgment and settlements shall not be included in the calculation of the Construction Manager's Fee or the Guaranteed Maximum Price and provided that such royalties, fees and costs are not excluded by the last sentence of Paragraph 1.5.19.1, General Conditions or other provisions of the Contract Documents. (e) Data processing costs related to the Work. (0 Deposits lost for causes other than the Construction Manager's negligence or failure to fulfill a specific responsibility to the City set forth in this Agreement. 6.1.1.1.11 Other Costs. Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the City. The costs described in Paragraphs 6.1.1.1 through 6.1.1.11 shall be included in the Cost of the Work notwithstanding any provision of General Conditions of the Contract which may require the Construction Manager to pay such costs, unless such costs are excluded by the provisions of Paragraph 6.2. 6.2 Costs Not To Be Reimbursed. 6.2.1.1 The Cost of the Work shall not include: (a) Salaries and other compensation of the Construction Manager's personnel stationed at the Construction Manager's principal office or offices other than the site office, except as specifically provided in Paragraphs 6.1.2.1 and 6.1.2.2. 67 (b) Expenses of the Construction Manager's principal office and offices other than the site office, except as specifically provided in Paragraph 6.1. (c) Overhead and general expenses, except as may be expressly included in Paragraph 6.1. (d) The Construction Manager's capital expenses, including interest on the Construction Manager's capital employed for the Work. (e) Rental costs of machinery and equipment, except as specifically provided in Paragraph 6.1.5(b). (f) Costs due to the negligence of the Construction Manager or to the failure of the Construction Manger to fulfill a specific responsibility to the City set forth in this Agreement. (g) Costs incurred in the performance of Preconstruction Phase Services. (h) Except as provided in Paragraph 6.1.7, any cost not specifically and expressly described in Paragraph 6.1. (i) Costs which would cause the Guaranteed Maximum Price to be exceeded. 6.3 Discounts, Rebates and Refunds. 6.3.1.1 Cash discounts obtained on payments made by the Construction Manager shall accrue to the City if(1) before making the payment, the Construction Manager included them in an Application for Payment and received payment therefor from the City, or(2) the City has deposited funds with the Construction Manager with which to make payments; otherwise, cash discounts shall accrue to the Construction Manager. Trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment shall accrue to the City, and the Construction Manager shall make provisions so that they can be secured. 6.3.1.2 Amounts which accrue to the City in accordance with the provisions of Paragraph 6.3.1 shall be credited to the City as a deduction from the Cost of the Work. 6.4 Accounting Records. 6.4.1.1 The Construction Manager 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 shall be satisfactory to the City. The City and the City's accountants shall be afforded access to the Construction Manager's records, books, correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to this Project, and the Construction Manager shall preserve these for a period of three years after final payment, or for such longer period as may be required by law. SECTION 7 PAYMENT. 68 7.1 Progress Payments. 7.1.1 Based upon Applications for Payment submitted to the Architect by the Construction Manager, in a form acceptable to City and the Architect, and Certificates for Payment issued by the Architect, the City shall make progress payments on account of the Contract Sum to the Construction Manager as provided below and elsewhere in the Contract Documents. 7.1.1.1 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month. 7.1.1.2 Provided an Application for Payment is received by the Architect not later than the 30th day of a month, the City shall make payment to the Construction Manager not later than the 30th day of the following month. If an Application for Payment is received by the Architect after the application date fixed above, payment shall be made by the City not later than thirty(30) days after the Architect receives the Application for Payment. 7.1.1.3 With each Application for Payment, the Construction Manager shall submit payrolls,petty cash accounts,receipted invoices or invoices with check vouchers attached and any other evidence required by the City or Architect to demonstrate that cash disbursements already made by the Construction Manager on account of the Cost of the Work equal or exceed (1)progress payments already received by the Construction Manager; less(2)that portion of those payments attributable to the Construction Manager's Fee; plus (3)payrolls for the period covered by the present Application for Payment. 7.1.1.4 Each Application for Payment shall be based upon the most recent schedule of values submitted by the Construction Manager in accordance with the Contract Documents. The schedule of values shall allocate the entire Guaranteed Maximum Price among the various portions of the Work, except that the Construction Manager'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 City and Architect may require. This schedule,unless objected to by the City or Architect, shall be used as a basis for reviewing the Construction Manager's Applications for Payment. 7.1.1.5 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 Construction Manager on account of that portion of the Work for which the Construction Manager has made or intends to make actual payment prior to the next Application for Payment by (b) the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. 7.1.1.6 Subject to other provisions of the Contract Documents,the amount of each progress payment shall be computed as follows: (a) Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Guaranteed Maximum 69 Price allocated to that portion of the Work in the schedule of values. Pending final determination of cost to the City of changes in the Work, amounts not in dispute may be included as provided in Paragraph 1.9.3.7, General Conditions, even though the Guaranteed Maximum Price has not yet been adjusted by Change Order. (b) Add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work or, if approved in advance by the City, suitably stored off the site at a location agreed upon in writing. (c) Add the Construction Manager's Fee, less retainage of: (i) ten percent (10%) where the GMP is less than $400,000; or (ii) five percent (5%) where the GMP is $400,000 or more. The Construction Manager's Fee shall be computed upon the Cost of the Work described in the two preceding Paragraphs at the rate stated in Paragraph 5.1.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Paragraph, shall be an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work in the two preceding Paragraphs bears to a reasonable estimate of the probable Cost of the Work upon its completion. (d) Subtract the aggregate of previous payments made by the City. (e) Subtract the shortfall, if any, indicated by the Construction Manager in the documentation required by Paragraph 7.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the City's accountants in such documentation. (f) Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Paragraph 1.11.5, General Conditions. 7.1.1.7 Except with the City's prior approval, payments to Subcontractors shall be subject to retention of not less than five percent(5%). The City and the Construction Manager shall agree upon a mutually acceptable procedure for review and approval of payments and retention for subcontracts. 7.1.1.8 Except with the City's prior approval,the Construction Manager shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. 7.1.1.9 In taking action on the Construction Manager's Applications for Payment, the Architect shall be entitled to rely on the accuracy and completeness of the information furnished by the Construction Manager and shall not be deemed to represent that the Architect has made a detailed examination, audit or arithmetic verification of the documentation submitted in accordance with Paragraph 7.1.4 or other supporting data, that the Architect has made exhaustive or continuous on-site inspections or that the Architect has made examinations to ascertain how or for what purposes the Construction Manager has used amounts previously paid on account of the Contract. Such examinations, audits and verifications, if required by the City, will be performed by the City's accountants acting in the sole interest of the City. 70 7.1.2 Final Payment. 7.1.2.1 Final payment shall be made by the City to the Construction Manager when (1) the Contract has been fully performed by the Construction Manager except for the Construction Manager's responsibility to correct punch list items or nonconforming Work, as provided in Paragraph 1.14.2.2, General Conditions, 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 have been submitted by the Construction Manager and reviewed by the City's accountants; and (3) a final Certificate for Payment has then been issued by the Architect; such final payment shall be made by the City not more than 30 days after the issuance of the Architect's final Certificate for Payment, or as follows: 7.1.2.2 The amount of the final payment shall be calculated as follows: (a) Take the sum of the Cost of the Work substantiated by the Construction Manager's final accounting and the Construction Manager's Fee, but not more than the Guaranteed Maximum Price. (b) Subtract amounts, if any, for which the Architect withholds or the City is entitled to withhold under this Agreement, in whole or in part, a final Certificate for Payment as provided in Paragraph 1.11.5.1, General Conditions or other provisions of the Contract Documents. (c) Subtract the aggregate of previous payments made by the Owner. If the aggregate of previous payments made by the City exceeds the amount due the Construction Manager, the Construction Manager shall reimburse the difference to the City. If the aggregate of previous payments made by the City exceeds the amount due the Construction Manager, the Construction Manager shall reimburse the difference to the City. 7.1.2.3 The City's accountants will review and report in writing on the Construction Manager's final accounting within 30 days after delivery of the final accounting to the Architect by the Construction Manager, together with all backup documentation reasonably required by the City. Based upon such Cost of the Work as the City's accountants report to be substantiated by the Construction Manager's final accounting, and provided the other conditions of Paragraph 7.2.1 have been met,the Architect will,within seven days after receipt of the written report of the Owner's accountants, either issue to the City a final Certificate for Payment with a copy to the Construction Manager or notify the Construction Manager and Owner in writing of the Architect's reasons for withholding a certificate as provided in Paragraph 1.11.5.1, General Conditions. The time periods stated in this Paragraph 7.2 supersede those stated in Paragraph 1.11.4.1, General Conditions. 7.1.2.4 If the City's accountants report the Cost of the Work as substantiated by the Construction Manager's final accounting to be less than claimed by the Construction Manager, the Construction Manager shall be entitled to proceed in accordance with Paragraph 8 without a 71 further decision of the Architect. Unless agreed to otherwise, a demand for mediation of the disputed amount shall be made by the Construction Manager within 30 days after the Construction Manager's receipt of a copy of the Architect's fmal Certificate for Payment. Failure to make such demand within this 30-day period shall result in the substantiated amount reported by the City's accountants becoming binding on the Construction Manager. Pending a final resolution of the disputed amount, the City shall pay the Construction Manager the amount certified in the Architect's fmal Certificate for Payment. 7.1.2.5 If, subsequent to final payment and at the City's request, the Construction Manager incurs costs described in Paragraph 6.1 and not excluded by Paragraph 6.2 (1)to correct nonconforming Work or (2) arising from the resolution of disputes, the City shall reimburse the Construction Manager such costs and the Construction Manager's Fee, if any, related thereto on the same basis as if such costs had been incurred prior to final payment, but not in excess of the Guaranteed Maximum Price. If the Construction Manager has participated in savings, the amount of such savings shall be recalculated and appropriate credit given to the City in determining the net amount to be paid by the City to the Construction Manager. SECTION 8 MISCELLANEOUS PROVISIONS. 8.1 Dispute Resolution. 8.1.1 During both the Preconstruction and Construction Phases, claims, disputes or other matters in question between the parties to this Agreement shall be resolved as provided in Paragraph 1.6.3., General Conditions, except that, during the Preconstruction Phase, no decision by the Architect shall be a condition precedent to mediation. 8.2 Other Provisions. 8.2.1.1 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 City and the Construction Manager 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 City and Construction Manager. If anything in any document incorporated into this Agreement is inconsistent with this Agreement, this Agreement shall govern. 8.2.1.2 Ownership and Use of Documents. Paragraph 1.3.4, General Conditions, shall apply to both the Preconstruction and Construction Phases. 8.2.1.3 Governing Law. The Contract shall be governed by the laws of the State of Texas. Performance and all matters related thereto shall be in Brazoria County, Texas, United States of America. 8.2.1.4 Assignment. The City and Construction Manager 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 72 legally responsible for all obligations under the Contract. SECTION 9 TERMINATION OR SUSPENSION. 9.1Termination Prior To Establishing Guaranteed Maximum Price. 9.1.1 Prior to execution by both parties of Amendment No. 1 establishing the Guaranteed Maximum Price, the City may terminate this Contract at any time without cause, and the Construction Manager may terminate this Contract for any of the reasons described in Paragraph 1.16.1.1, General Conditions. 9.1.1.1 If the City or Construction Manager terminates this Contract pursuant to Paragraph 9.1 prior to commencement of the Construction Phase, the Construction Manager shall be equitably compensated for Preconstruction Phase Services performed prior to receipt of notice of termination; provided, however, that the compensation for such services shall not exceed the compensation set forth in Paragraph 4.1.1. 9.1.1.2 If the City or Construction Manager terminates this Contract pursuant to Paragraph 9.1 after commencement of the Construction Phase, the Construction Manager shall be paid , in addition to the compensation provided in Paragraph 9.1.2, an amount calculated as follows: (a) Take the Cost of the Work incurred by the Construction Manager. (b) Add the Construction Manager's Fee computed upon the Cost of the Work to the date of termination at the rate stated in Paragraph 5.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Paragraph, an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work at the time of termination bears to a reasonable estimate of the probable Cost of the Work upon its completion. (c) Subtract the aggregate of previous payments made by the City on account of the Construction Phase. The City shall also pay the Construction Manager fair compensation, either by purchase or rental at the election of the City, for any equipment owned by the Construction Manager which the City elects to retain and which is not otherwise included in the Cost of the Work under Paragraph 9.1.3.(a). To the extent that the City elects to take legal assignment of subcontracts and purchase orders (including rental agreements), the Construction Manager shall, as a condition of receiving the payments referred to in Paragraph 9, execute and deliver all such papers and take all such steps, including the legal assignment of such subcontracts and other contractual rights of the Construction Manager, as the City may require for the purpose of fully vesting in the City the rights and benefits of the Construction Manager under such subcontracts or purchase orders. Subcontracts, purchase orders and rental agreements entered into by the Construction Manager with the City's written approval prior to the execution of Amendment No. 1 shall 73 contain provisions permitting assignment to the City as described above. If the City accepts such assignment, the City shall reimburse the Construction Manager with respect to all valid and properly payable costs arising under the subcontract, purchase order or rental agreement except those which would not have been reimbursable as Cost of the Work if the contract had not been terminated. If the City elects not to accept the assignment of any subcontract, purchase order or rental agreement which would have constituted a Cost of the Work had this agreement not been terminated, the Construction Manager shall terminate such subcontract, purchase order or rental agreement and the City shall pay the Construction Manager the costs necessarily and reasonably incurred by the Construction Manager by reason of such termination, but in no event to include any overhead or profit on work not performed. 9.1.2 Termination Subsequent to Establishing Guaranteed Maximum Price. Subsequent to execution by both parties of Amendment No. 1, the Contract may be terminated as provided in Paragraph 1.16,General Conditions. 9.1.2.1 In the event of such termination by the Owner, the amount payable to the Construction Manager pursuant to Paragraph 1.16.1.3, General Conditions shall not exceed the amount the Construction Manager would have been entitled to receive pursuant to Paragraphs 9.1.2 and 9.1.3 of this Agreement. 9.2.2 In the event of such termination by the Construction Manager,the amount to be paid to the Construction Manager under Paragraph 1.16.1.3, General Conditions shall not exceed the amount the Construction Manager would have been entitled to receive under Paragraphs 9.1.2 and 9.1.3 above. In no event shall Construction Manager nor any supplier or subcontractor be entitled to any fee or lost profits for work not performed. 9.3 Suspension. The Work may be suspended by the City as provided in Paragraph 1.16, General Conditions; in such case, the Guaranteed Maximum Price, if established, shall be increased as provided in Paragraph 1.16.3.2, General Conditions, except that the term "cost of performance of the Contract"in that Paragraph shall be understood to mean the Cost of the Work and the term "profit" shall be understood to mean the Construction Manager's Fee as described in Paragraphs 5.1.1 and 5.3.4 of this Agreement. SECTION 10 OTHER CONDITIONS AND SERVICES. 10.1 Construction Manager represents to the City that it has, and will keep in effect at all times during the term of this Contract, any licenses, permits, and approvals which are legally required for the Construction Manager to practice its trade. 10.1.1 Authority to do business. The Construction Manager represents that it has a certificate of authority authorizing it to do business in the State of Texas, a registered agent and registered office during the duration of this Contract. 10.1.2 Authority to Contract. Each party has the full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby represent that they have authorization to sign on behalf of their respective 74 corporations. 10.1.3 Severability. In case any one or more of the provisions contained in this Contract 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 provision herein and this Contract shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 10.1.4 Presumption Against Waiver. No waiver by either party hereto of any one or more defaults by the other party hereto in the performance of this Contract shall be construed as a waiver of any future defaults whether of a like or different character. 10.1.5 Owner's Reserved Rights. The City shall have the rights by its officers, employees or agents to examine and inspect the Construction Manager's Work at any time to verify Construction Manager's compliance with the terms of this Contract. Any approval by City or acceptance of Construction Manager's Work shall not waive any obligation of Construction Manager to correct defective work. 10.1.6 Benefit. This Contract shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns where permitted by Contract. Nothing in this Paragraph shall be construed to waive the conditions elsewhere contained in this Contract applicable to assignment by the Construction Manager. Nothing contained in this Contract shall be construed to confer any benefit upon any subcontractor or any other third party. 10.1.7 Headings, Gender, Number. The headings are used in this Agreement for convenience and reference purposes only and are not intended to define, limit, or describe the scope or intent of any provision of this Agreement and shall have no meaning or effect upon its interpretation. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa,unless the context requires otherwise. 10.1.8 Agreement Read. The parties acknowledge that they have had opportunity to consult with counsel of their choice, have read, understand and intend to be bound by the terms and conditions of this Agreement. 10.1.9 Liquidated Damages. The amount of liquidated damages for the Construction Manager's failure to meet the deadlines for Substantial and/or Final Completion are fixed and agreed on by the Construction Manager because of the impracticability and extreme difficulty in fixing and ascertaining the actual damages that the City would in such an event sustain. The amounts to be charged are agreed to be damages the City would sustain and shall be retained by the City from current periodic estimates for payment or from final payment. As a result of the difficulty in estimation, calculation and ascertainment of City's damages due to a failure of Construction Manager to achieve timely completion of the Work, if the Construction Manager should neglect, fail, or refuse to either Substantially Complete or Finally Complete the Work within the time herein specified, or any proper extension thereof granted by the City's Representative pursuant to the terms of the Contract Documents, then the Construction Manager does hereby agree as part of the consideration for the awarding of this Agreement that the Owner may permanently withhold from the Construction Manager's total compensation the sum of 75 One Thousand Five Hundred and no /100 DOLLARS ($ 1,500.00) for each and every calendar day that the Construction Manager shall be in default after the time stipulated for Substantial Completion not as a penalty, but as liquidated damages for the breach of this Agreement. It being specifically understood that the assessment of liquidated damages may be made for any failure to meet either or both of the deadlines specified for Substantial Completion and/or Final Completion. 10.1.10Fina1 Completion. Contractor shall achieve Final Completion within 30 calendar days of the date of Substantial Completion, failing which, Contractor shall provide a full time on site superintendent until Final Completion at its own cost and not as a cost of the Work. 10.1.11 Verification No Boycott Israel. To the extent this Contract is considered a contract for goods or services subject to § 2270.002 Texas Government Code, Contractor verifies that it i) does not boycott Israel; and ii) will not boycott Israel during the term of this Contract. List of ATTACHMENTS 1 Owner's Insurance Requirements of Contractor 2 Special Conditions of the Contract 3 Wage Rate fmding for Building Construction In Brazoria County 4 Appendix A Title VI Assurances List of Exhibits A Contractor's Insurance Certificates B Performance Bond C Payment Bond CONTRACTOR CITY OF PEARLAND By: By: City Manager Printed Name: Date: Title: Date: APPROVED: APPROVED: Notary City Secretary Date: Date: ATTACHMENT 1 OWNER'S INSURANCE REQUIREMENTS OF CONTRACTOR 1. Definitions. For purposes of this Agreement: 1.1 Owner Parties. "Owner Parties" means (a) the City of Pearland, its successors and assigns, and the Engineer, (b) any officers, employees, or agents of such persons or entities, and(c) others as required by the Contract Documents, if any. 1.2 Contractor. "Contractor" shall mean the vendor providing the service or work to be performed under this Agreement. 1.3 Subcontractor. "Subcontractor"shall include subcontractors of any tier. 1.4 ISO. "ISO"means Insurance Services Office. 2. Contractor Insurance Representations to Owner Parties 2.1 It is expressly understood and agreed that the insurance coverages required herein: 2.1.1 represent Owner Parties' minimum requirements and are not to be construed to void or limit the Contractor's indemnity obligations as contained in this Agreement nor represent in any manner a determination of the insurance coverages the Contractor should or should not maintain for its own protection; and 2.1.2 are being, or have been, obtained by the Contractor in support of the Contractor's liability and indemnity obligations under this Agreement. Neither the requirements as to insurance to be carried as provided for herein, the insolvency, bankruptcy or failure of any insurance company carrying insurance of the Contractor, nor the failure of any insurance company to pay claims accruing, shall be held to affect, negate or waive any of the provisions of this Agreement. 2.2 Failure to obtain and maintain the required insurance shall constitute a material breach of, and default under, this Agreement. If the Contractor shall fail to remedy such breach within five (5) business days after notice by the Owner, the Contractor will be liable for any and all costs, liabilities, damages and penalties resulting to the Owner Parties from such breach, unless a written waiver of the specific insurance requirement(s) is provided to the Contractor by the Owner. In the event of any failure by the Contractor to comply with the provisions of this Agreement, the Owner may, without in any way compromising or waiving any right or remedy at law or in equity, on notice to the Contractor, purchase such insurance, at the Contractor's expense, provided that the Owner shall have no obligation to do so and if the Owner shall do so, the Contractor shall not be relieved of or excused from the obligation to obtain and maintain such insurance amounts and coverages. 10-2012 00700-C 1 3. Conditions Affecting All Insurance Required Herein 3.1 Cost of Insurance. All insurance coverage shall be provided at the Contractor's sole expense. 3.2 Status and Rating of Insurance Company. All insurance coverage shall be written through insurance companies authorized to do business in the state in which the work is to be performed and rated no less than A-: VII in the most current edition of A. M. Best's Key Rating Guide. 3.3 Restrictive. Limiting. or Exclusionary Endorsements. All insurance coverage shall be provided to the Owner Parties in compliance with the requirements herein and shall contain no endorsements that restrict, limit, or exclude coverage required herein in any manner without the prior express written approval of the Owner. 3.4 Limits of Liability. The limits of liability may be provided by a single policy of insurance or by a combination of primary and umbrella policies, but in no event shall the total limits of liability available for any one occurrence or accident be less than the amount required herein. 3.5 Notice of Cancellation, Nonrenewal, or Material Reduction in Coverage. All insurance coverage shall contain the following express provision: In the event of cancellation, non-renewal, or material reduction in coverage affecting the certificate holder, thirty (30) days prior written notice shall be given to the certificate holder by certified mail or registered mail, return receipt requested. 3.6 Waiver of Subrogation. The Contractor hereby agrees to waive its rights of recovery from the Owner Parties with regard to all causes of property and/or liability loss and shall cause a waiver of subrogation endorsement to be provided in favor of the Owner Parties on all insurance coverage carried by the Contractor, whether required herein or not. 3.7 Deductible/Retention. Except as otherwise specified herein, no insurance required herein shall contain a deductible or self-insured retention in excess of $25,000 without prior written approval of the Owner. All deductibles and/or retentions shall be paid by, assumed by, for the account of, and at the Contractor's sole risk. The Contractor shall not be reimbursed for same. 4. Maintenance of Insurance. The following insurance shall be maintained in effect with limits not less than those set forth below at all times during the term of this Agreement and thereafter as required: 4.1 Commercial General Liability Insurance 4.1.1 Coverage. Such insurance shall cover liability arising out of all locations and operations of the Contractor, including but not limited to liability assumed under this contract (including the tort liability of another assumed 10-2012 00700-C2 in a business contract). Defense shall be provided as an additional benefit and not included within the limit of liability. 4.1.2 Form. Commercial General Liability Occurrence form(at least as broad as an unmodified ISO CG 0001 0798 or its equivalent). 4.1.3 Amount of Insurance. Coverage shall be provided with limits of not less than: Each Occurrence Limit $1,000,000 General Aggregate Limit $2,000,000 Product-Completed Operations Aggregate Limit $2,000,000 Personal and Advertising Injury Limit $1,000,000 4.1.4 Required Endorsements a. Additional Insured. Additional insured status shall be provided in favor of the Owner Parties on any of the following: i. ISO form CG 20 10 11 85; or ii. ISO form CG 20 26 11 85; or iii. a combination of ISO forms CG 20 33 10 01 and CG 20 37 10 01; or iv. any form providing equivalent protection to Owner. b. Designated Construction Project(s) Aggregate Limit. The aggregate limit shall apply separately to this Agreement through use of an ISO CG 25 03 03 97 endorsement or its equivalent. c. Notice of Cancellation. Nonrenewal or Material Reduction in Coverage, as required in 3.5, above. d. Personal Injury Liability. The personal injury contractual liability exclusion shall be deleted. e. Primary and Non-Contributing Liability. It is the intent of the parties to this Agreement that all insurance required herein shall be primary to all insurance available to the Owner Parties. The obligations of the Contractor's insurance shall not be affected by any other insurance available to the Owner Parties and shall seek no contribution from the Owner Parties' insurance, whether primary, excess contingent, or on any other basis. The Contractor's insurance coverage shall be endorsed to provide such primary and non- contributing liability. f. Waiver of Subrogation, as required in 3.6, above. 4.1.5 Continuing Commercial General Liability Insurance. The Contractor shall maintain such insurance in identical coverage, form and amount, including required endorsements, for at least one (1) year following Date of Substantial Completion of the Work to be performed under this Agreement. The Contractor shall provide written representation to Owner stating Work completion date. 10-2012 00700-C3 4.2 Auto Liability Insurance 4.2.1 Coverage. Such insurance shall cover liability arising out of any auto (including owned, hired, and non-owned). 4.2.2 Form. Business Auto form (at least as broad as an unmodified ISO CA 0001 or its equivalent). 4.2.3 Amount of Insurance. Coverage shall be provided with a limit of not less than$1,000,000. 4.2.4 Required Endorsements a. Notice of Cancellation. Nonrenewal or Material Reduction in Coverage, as required in 3.5, above. b. Waiver of Subrogation, as required in 3.6, above. 4.3 Employer's Liability Insurance 4.3.1 Coverage. Employer's Liability Insurance shall be provided as follows: 4.3.2 Amount of Insurance. Coverage shall be provided with a limit of not less than: Employer's Liability: $1,000,000 each accident and each disease. 4.3.3 Required Endorsements a. Notice of Cancellation. Nonrenewal or Material Reduction in Coverage, as required in 3.5, above. b. Waiver of Subrogation, as required in 3.6, above. 4.4 Umbrella Liability Insurance 4.4.1 Coverage. Such insurance shall be excess over and be no less broad than all coverages described above and shall include a drop-down provision for exhaustion of underlying limits. 4.4.2 Form. This policy shall have the same inception and expiration dates as the commercial general liability insurance required above. 4.4.3 Amount of Insurance. Coverage shall be provided with a limit of not less than$5,000,000. 4.4.4 Continuing Umbrella Liability Insurance. The Contractor shall maintain such insurance in identical coverage, form and amount, including required endorsements, for at least one (1) year following Date of Substantial Completion of the Work to be performed under this Agreement. The Contractor shall provide written representation to the Owner stating Work completion date. 10-2012 00700-C4 4.5 Professional Liability Insurance 4.5.1 Coverage. The Contractor shall provide professional liability insurance for any professional design or engineering drawing required by the work. Such insurance shall indemnify the Owner from claims arising from the negligent performance of professional services of any type, including but not limited to design or design/build services as part of the Work to be performed. 4.5.2 Form. This insurance shall include prior acts coverage sufficient to cover all services rendered by the Contractor and by its consultants under this Agreement. It is recognized that this coverage may be provided on a Claims-Made basis. 4.5.3 Amount of Insurance. Coverage shall be provided with a limit of not less than$1,000,000. 4.5.4 Continuing Professional Liability Insurance. The Contractor shall maintain such insurance in identical coverage, form and amount for at least one (1) year following Date of Substantial Completion of the Work to be performed under this Agreement. The Contractor shall provide written representation to the Owner stating Work completion date. 4.6 Builder's Risk 4.6.1 Insureds. Insureds shall include: a. Owner, General Contactor and all Loss Payees and Mortgagees as Named Insureds; and b. subcontractors of all tiers in the Work as Additional Insureds. 4.6.2 Covered Property. Such insurance shall cover: a. all structure(s) under construction, including retaining walls, paved surfaces and roadways, bridges, glass, foundation(s), footings, underground pipes and wiring, excavations, grading, backfilling or filling; b. all temporary structures (e.g., fencing, scaffolding, cribbing, false work, forms, site lighting, temporary utilities and buildings) located at the site; c. all property including materials and supplies on site for installation; d. all property including materials and supplies at other locations but intended for use at the site; e. all property including materials and supplies in transit to the site for installation by all means of transportation other than ocean transit; and £ other Work at the site identified in the Agreement to which this Exhibit is attached. 10-2012 00700-C5 Form a. Coverage shall be at least as broad as an unmodified ISO Special form, shall be provided on a completed-value basis, and shall be primary to any other coverage insurance available to the insured parties, with that other insurance being excess, secondary and non- contributing. b. No protective safeguard warranty shall be permitted. c. Required coverage shall further include: i. Additional expenses due to delay in $ TBD completion of project (where applicable) ii. Agreed value Included without sublimit iii. Damage arising from error, omission or Included without sublimit deficiency in construction methods, design, specifications, workmanship or materials, including collapse iv. Debris removal additional limit 25%of direct damage loss v. Earthquake (where applicable) $ TBD vi. Earthquake sprinkler leakage (where $ TBD applicable) vii. Expediting expenses $ TBD viii. Flood(where applicable) $ TBD ix. Freezing Included without sublimit x. Mechanical breakdown, including hot & Included without sublimit cold testing (where applicable) xi. Notice of cancellation, non-renewal or Included material reduction—60 days prior written notice to each insured xii. Occupancy clause, as required in F; Included below xiii. Ordinance or law Included without sublimit xiv. Pollutant clean-up and removal $ TBD xv. Preservation of property Included without sublimit xvi. Replacement cost Included xvii. Theft Included without sublimit xviii. Waiver of subrogation as required in G, Included below. 4.6.3 Amount of Insurance. Coverage shall be provided in an amount equal at all times to the full replacement value and cost of debris removal for any single occurrence. 10-2012 00700- C6 4.6.4 Deductibles. Deductibles shall not exceed the following: a. All Risks of Direct Damage, Per $5,000 Occurrence, except b. Delayed Opening Waiting Period 5 Days c. Flood, Per Occurrence $25,000 or excess of NFIP if in Flood Zone A, B or V d. Earthquake and Earthquake Sprinkler $25,000 Leakage, Per Occurrence 4.6.5 Termination of Coverage. The termination of coverage provision shall be endorsed to permit occupancy of the covered property being constructed so long as such occupancy does not exceed 20% of the usable area of the property. This insurance shall be maintained in effect, unless otherwise provided for in the Contract Documents, until the earliest of the following dates: a. the date on which all persons and organizations who are insureds under the policy agree that it shall be terminated; b. the date on which fmal payment, as provided for in the Agreement to which this Exhibit is attached, has been made; or c. the date on which the insurable interests in the Covered Property of all insureds other than Contractor have ceased. 4.6.6 Waiver of Subrogation. The waiver of subrogation provision shall be endorsed as follows: a. A waiver of subrogation shall be provided in favor of all insureds. b. The waiver of subrogation provisions shall be endorsed as follows: Should a covered loss be subrogated, either in whole or in part, your rights to any recovery will come first, and we will be entitled to a recovery only after you have been fully compensated for the loss. 5. Intentionally left blank. 6. Evidence of Insurance 6.1 Provision of Evidence. Evidence of the insurance coverage required to be maintained by the Contractor, represented by certificates of insurance, evidence of insurance, and endorsements issued by the insurance company or its legal agent, and must be furnished to the Owner prior to commencement of Work and not later than fifteen (15) days after receipt of this Agreement. New certificates of insurance, evidence of insurance, and endorsements shall be provided to the Owner prior to the termination date of the current certificates of insurance, evidence of insurance, and endorsements. 10-2012 00700-C7 6.2 Form 6.2.1 All property insurance required herein shall be evidenced by ACORD form 28, "Evidence of Property Insurance". 6.2.2 All liability insurance required herein shall be evidenced by ACORD form 25, "Certificate of Insurance". 6.3 Specifications. Such certificates of insurance, evidence of insurance, and endorsements shall specify: 6.3.1 The Owner as a certificate holder with correct mailing address. 6.3.2 Insured's name, which must match that on this Agreement. 6.3.3 Insurance companies affording each coverage, policy number of each coverage, policy dates of each coverage, all coverages and limits described herein, and signature of authorized representative of insurance company. 6.3.4 Producer of the certificate with correct address and phone number listed. 6.3.5 Additional insured status required herein. 6.3.6 Amount of any deductibles and/or retentions. 6.3.7 Cancellation, non-renewal and material reduction in coverage notification as required by this Agreement. Additionally, the words "endeavor to" and "but failure to mail such notice shall impose no obligation or liability of any kind upon Company, it agents or representatives" shall be deleted from the cancellation provision of the ACORD 25 certificate of insurance form. 6.3.8 Designated Construction Project Aggregate Limits required herein. 6.3.9 Personal Injury contractual liability required herein. 6.3.10 Primary and non-contributing status required herein. 6.3.11 Waivers of subrogation required herein. 6.4 Required Endorsements. A copy of each of the required endorsements shall also be provided. 6.5 Failure to Obtain. Failure of any Owner Party to demand such certificate or other evidence of full compliance with these insurance requirements or failure of any Owner Party to identify a deficiency from evidence that is provided shall not be construed as a waiver of the Contractor's obligation to maintain such insurance. 6.6 Certified Copies. Upon request of any Owner Party, the Contractor shall provide to the Owner a certified copy of all insurance policies required herein within ten (10) days of any such request. Renewal policies, if necessary, shall be delivered to the Owner prior to the expiration of the previous policy. 6.7 Commencement of Work. Commencement of Work without provision of the required certificate of insurance, evidence of insurance and/or required endorsements, or without compliance with any other provision of this Agreement, shall not constitute a waiver by any Owner Party of any rights. The Owner shall have the right, but not the obligation, of prohibiting the Contractor or any subcontractor from performing any Work until such certificate of insurance, evidence of insurance and/or required endorsements are received and approved by the Owner. 10-2012 00700-C8 7. Insurance Requirements of Contractor's Subcontractors 7.1 Insurance similar to that required of the Contractor shall be provided by all subcontractors (or provided by the Contractor on behalf of subcontractors) to cover operations performed under any subcontract agreement. The Contractor shall be held responsible for any modification in these insurance requirements as they apply to subcontractors. The Contractor shall maintain certificates of insurance from all subcontractors containing provisions similar to those listed herein (modified to recognize that the certificate is from subcontractor) enumerating, among other things, the waivers of subrogation, additional insured status, and primary liability as required herein, and make them available to the Owner upon request. 7.2 The Contractor is fully responsible for loss and damage to its property on the site, including tools and equipment, and shall take necessary precautions to prevent damage to or vandalism, theft, burglary, pilferage and unexplained disappearance of property. Any insurance covering the Contractor's or its subcontractor's property shall be the Contractor's and its subcontractor's sole and complete means or recovery for any such loss. To the extent any loss is not covered by said insurance or subject to any deductible or co-insurance, the Contractor shall not be reimbursed for same. Should the Contractor or its subcontractors choose to self insure this risk, it is expressly agreed that the Contractor hereby waives, and shall cause its subcontractors to waive, any claim for damage or loss to said property in favor of the Owner Parties. 8. Use of the Owner's Equipment. The Contractor, its agents, employees, subcontractors or suppliers shall use the Owner's equipment only with express written permission of the Owner's designated representative and in accordance with the Owner's terms and condition for such use. If the Contractor or any of its agents, employees, subcontractors or suppliers utilize any of the Owner's equipment for any purpose, including machinery, tools, scaffolding, hoists, lifts or similar items owned, leased or under the control of the Owner, the Contractor shall defend, indemnify and be liable to the Owner Parties for any and all loss or damage which may arise from such use. 9. Release and Waiver. The Contractor hereby releases, and shall cause its subcontractors to release, the Owner Parties from any and all claims or causes of action whatsoever which the Contractor and/or its subcontractors might otherwise now or hereafter possess resulting in or from or in any way connected with any loss covered by insurance, whether required herein or not, or which should have been covered by insurance required herein, including the deductible and/or uninsured portion thereof, maintained and/or required to be maintained by the Contractor and/or its subcontractors pursuant to this Agreement. 10-2012 00700-C9 ATTACHMENT 2 SPECIAL CONDITIONS OF AGREEMENT The following Special Conditions modify the General Conditions, Document 00700. Where a portion of the General Conditions is modified or deleted by these Special Conditions, the unaltered portions of the General Conditions shall remain in effect. ARTICLE 1 DEFINITIONS AND INTERPRETATIONS 1.01 Add the following paragraph to the end of Article 1.01: The OWNER'S representative on the project site is: TBD telephone: The CONSTRUCTION MANAGER is: TBD telephone: The CONSTRUCTION INSPECTOR is: TBD ARTICLE 4 RIGHTS AND RESPONSIBILITIES OF THE CONTRACTOR EXHIBIT A Owner's Insurance Requirements of Contractor, Article 4.6 Builder's Risk— Builder's Risk Insurance is required for this project. ARTICLE 5 PROSECUTION AND PROGRESS Temporary Facilities Contractor is be required to provide an on-site construction office for the duration of this project. Contractor is required to coordinate with the Owner for all Traffic Control Documents. Contractor to coordinate with the Architect & Owner for procurement of Traffic Control Documents prior to TXDOT permitting. Contractor is to keep a minimum of one lane open at all times, in both directions. No lane closures to extend beyond the defined work day. END OF SECTION 08/2018 00800- 1 of 1 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 General Decision Number: TX180282 09/14/2018 TX282 ATTACHMENT 3 Superseded General Decision Number: TX20170282 State: Texas Construction Type: Building County: Brazoria County in Texas. BUILDING CONSTRUCTION PROJECTS (does not include single family homes or apartments up to and including 4 stories). Note: Under Executive Order (EO) 13658, an hourly minimum wage of $10.35 for calendar year 2018 applies to all contracts subject to the Davis-Bacon Act for which the contract is awarded (and any solicitation was issued) on or after January 1, 2015. If this contract is covered by the EO, the contractor must pay all workers in any classification listed on this wage determination at least $10.35 per hour (or the applicable wage rate listed on this wage determination, if it is higher) for all hours spent performing on the contract in calendar year 2018. The EO minimum wage rate will be adjusted annually. Please note that this EO applies to the above-mentioned types of contracts entered into by the federal government that are subject to the Davis-Bacon Act itself, but it does not apply to contracts subject only to the Davis-Bacon Related Acts, including those set forth at 29 CFR 5.1(a)(2)-(60). Additional information on contractor requirements and worker protections under the EO is available at www.dol.gov/whd/govcontracts. Modification Number Publication Date 0 01/05/2018 1 01/12/2018 2 08/03/2018 3 09/14/2018 ASBE0022-009 06/01/2018 Rates Fringes ASBESTOS WORKER/HEAT & FROST INSULATOR (Duct, Pipe and Mechanical System Insulation) $ 24.15 13.29 BOIL0074-003 01/01/2017 Rates Fringes BOILERMAKER $ 28.00 22.35 CARP0551-009 04/01/2016 Rates Fringes CARPENTER (Excludes Drywall Hanging, Form Work, and Metal Stud Installation) $ 23.05 8.78 ELEC0716-005 08/28/2017 Rates Fringes https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 1/7 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 ELECTRICIAN (Excludes Low Voltage Wiring and Installation of Alarms) $ 32.25 9.14 ELEV0031-003 01/01/2018 Rates Fringes ELEVATOR MECHANIC $ 41.28 32.645+a+b FOOTNOTES: A. 6% under 5 years based on regular hourly rate for all hours worked. 8% over 5 years based on regular hourly rate for all hours worked. B. Holidays: New Year's Day; Memorial Day; Independence Day; Labor Day; Thanksgiving Day; Friday after Thanksgiving Day; Christmas Day; and Veterans Day. ENGI0450-002 04/01/2014 Rates Fringes POWER EQUIPMENT OPERATOR Cranes $ 34.85 9.85 * IRON0084-011 06/01/2018 Rates Fringes IRONWORKER, ORNAMENTAL $ 23.77 7.12 * IRON0135-002 09/01/2018 Rates Fringes IRONWORKER, STRUCTURAL $ 31.85 12.14 PLAS0079-004 01/01/2015 Rates Fringes PLASTERER $ 19.92 1.00 PLUM0068-002 10/01/2017 Rates Fringes PLUMBER $ 34.90 10.54 PLUM0211-010 10/01/2017 Rates Fringes PIPEFITTER (Including HVAC Pipe Installation) $ 34.10 11.71 SHEE0054-003 07/01/2017 Rates Fringes SHEET METAL WORKER (Excludes HVAC Duct and Unit Installation) $ 27.72 13.70 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 2/7 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 SUTX2014-008 07/21/2014 Rates Fringes ACOUSTICAL CEILING MECHANIC $ 16.41 3.98 BRICKLAYER $ 19.86 0.00 CAULKER $ 15.36 0.00 CEMENT MASON/CONCRETE FINISHER $ 13.33 0.00 DRYWALL FINISHER/TAPER $ 16.30 3.71 DRYWALL HANGER AND METAL STUD INSTALLER $ 17.45 3.96 ELECTRICIAN (Alarm Installation Only) $ 17.97 3.37 ELECTRICIAN (Low Voltage Wiring Only) $ 18.00 1.68 FLOOR LAYER: Carpet $ 20.00 0.00 FORM WORKER $ 12.57 0.00 GLAZIER $ 19.12 4.41 INSULATOR - BATT $ 14.87 0.73 IRONWORKER, REINFORCING $ 12.10 0.00 LABORER: Common or General $ 10.55 0.00 LABORER: Mason Tender - Brick $ 13.37 0.00 LABORER: Mason Tender - Cement/Concrete $ 10.86 0.00 LABORER: Pipelayer $ 12.94 0.00 LABORER: Roof Tearoff $ 11.28 0.00 LABORER: Landscape and Irrigation $ 9.49 0.00 LATHER $ 19.73 0.00 OPERATOR: Backhoe/Excavator/Trackhoe $ 15.56 0.00 OPERATOR: Bobcat/Skid Steer/Skid Loader $ 13.93 0.00 OPERATOR: Bulldozer $ 20.77 0.00 OPERATOR: Drill $ 16.22 0.34 OPERATOR: Forklift $ 15.64 0.00 OPERATOR: Grader/Blade $ 13.37 0.00 OPERATOR: Loader $ 13.55 0.94 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 3/7 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 OPERATOR: Mechanic $ 17.52 3.33 OPERATOR: Paver (Asphalt, Aggregate, and Concrete) $ 16.03 0.00 OPERATOR: Roller $ 16.00 0.00 PAINTER (Brush, Roller and Spray), Excludes Drywall Finishing/Taping $ 16.77 4.51 ROOFER $ 15.40 0.00 SHEET METAL WORKER (HVAC Duct Installation Only) $ 20.05 4.19 SHEET METAL WORKER (HVAC Unit Installation Only) $ 19.67 2.24 SPRINKLER FITTER (Fire Sprinklers) $ 22.17 9.70 TILE FINISHER $ 12.00 0.00 TILE SETTER $ 16.17 0.00 TRUCK DRIVER: 1/Single Axle Truck $ 14.95 5.23 TRUCK DRIVER: Dump Truck $ 12.39 1.18 TRUCK DRIVER: Flatbed Truck $ 19.65 8.57 TRUCK DRIVER: Semi-Trailer Truck $ 12.50 0.00 TRUCK DRIVER: Water Truck $ 12.00 4.11 WATERPROOFER $ 14.39 0.00 WELDERS - Receive rate prescribed for craft performing operation to which welding is incidental. Note: Executive Order (EO) 13706, Establishing Paid Sick Leave for Federal Contractors applies to all contracts subject to the Davis-Bacon Act for which the contract is awarded (and any solicitation was issued) on or after January 1, 2017. If this contract is covered by the E0, the contractor must provide employees with 1 hour of paid sick leave for every 30 hours they work, up to 56 hours of paid sick leave each year. Employees must be permitted to use paid sick leave for their own illness, injury or other health-related needs, including preventive care; to assist a family member (or person who is like family to the employee) who is ill, injured, or has other health-related needs, including preventive care; or for reasons resulting from, or to assist a family member (or person who is like family to the employee) who is a victim of, domestic violence, sexual assault, or stalking. Additional information on contractor requirements and worker protections under the EO is available at www.dol.gov/whd/govcontracts. https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 4/7 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbaconfTX282.dvb?v=3 Unlisted classifications needed for work not included within the scope of the classifications listed may be added after award only as provided in the labor standards contract clauses (29CFR 5.5 (a) (1) (ii)). The body of each wage determination lists the classification and wage rates that have been found to be prevailing for the cited type(s) of construction in the area covered by the wage determination. The classifications are listed in alphabetical order of "identifiers" that indicate whether the particular rate is a union rate (current union negotiated rate for local), a survey rate (weighted average rate) or a union average rate (weighted union average rate). Union Rate Identifiers A four letter classification abbreviation identifier enclosed in dotted lines beginning with characters other than "SU" or "UAVG" denotes that the union classification and rate were prevailing for that classification in the survey. Example: PLUMO198-005 07/01/2014. PLUM is an abbreviation identifier of the union which prevailed in the survey for this classification, which in this example would be Plumbers. 0198 indicates the local union number or district council number where applicable, i.e., Plumbers Local 0198. The next number, 005 in the example, is an internal number used in processing the wage determination. 07/01/2014 is the effective date of the most current negotiated rate, which in this example is July 1, 2014. Union prevailing wage rates are updated to reflect all rate changes in the collective bargaining agreement (CBA) governing this classification and rate. Survey Rate Identifiers Classifications listed under the "SU" identifier indicate that no one rate prevailed for this classification in the survey and the published rate is derived by computing a weighted average rate based on all the rates reported in the survey for that classification. As this weighted average rate includes all rates reported in the survey, it may include both union and non-union rates. Example: SULA2O12-007 5/13/2014. SU indicates the rates are survey rates based on a weighted average calculation of rates and are not majority rates. LA indicates the State of Louisiana. 2012 is the year of survey on which these classifications and rates are based. The next number, 007 in the example, is an internal number used in producing the wage determination. 5/13/2014 indicates the survey completion date for the classifications and rates under that identifier. Survey wage rates are not updated and remain in effect until a new survey is conducted. Union Average Rate Identifiers Classification(s) listed under the UAVG identifier indicate that no single majority rate prevailed for those classifications; however, 100% of the data reported for the classifications was union data. EXAMPLE: UAVG-OH-0010 08/29/2014. UAVG indicates that the rate is a weighted union https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 5/7 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbaconlTX282.dvb?v=3 average rate. OH indicates the state. The next number, 0010 in the example, is an internal number used in producing the wage determination. 08/29/2014 indicates the survey completion date for the classifications and rates under that identifier. A UAVG rate will be updated once a year, usually in January of each year, to reflect a weighted average of the current negotiated/CBA rate of the union locals from which the rate is based. WAGE DETERMINATION APPEALS PROCESS 1.) Has there been an initial decision in the matter? This can be: * an existing published wage determination * a survey underlying a wage determination * a Wage and Hour Division letter setting forth a position on a wage determination matter * a conformance (additional classification and rate) ruling On survey related matters, initial contact, including requests for summaries of surveys, should be with the Wage and Hour Regional Office for the area in which the survey was conducted because those Regional Offices have responsibility for the Davis-Bacon survey program. If the response from this initial contact is not satisfactory, then the process described in 2.) and 3.) should be followed. With regard to any other matter not yet ripe for the formal process described here, initial contact should be with the Branch of Construction Wage Determinations. Write to: Branch of Construction Wage Determinations Wage and Hour Division U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 2.) If the answer to the question in 1.) is yes, then an interested party (those affected by the action) can request review and reconsideration from the Wage and Hour Administrator (See 29 CFR Part 1.8 and 29 CFR Part 7). Write to: Wage and Hour Administrator U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 The request should be accompanied by a full statement of the interested party's position and by any information (wage payment data, project description, area practice material, etc.) that the requestor considers relevant to the issue. 3.) If the decision of the Administrator is not favorable, an interested party may appeal directly to the Administrative Review Board (formerly the Wage Appeals Board). Write to: Administrative Review Board U.S. Department of Labor 200 Constitution Avenue, N.W. https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 6/7 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 Washington, DC 20210 4.) All decisions by the Administrative Review Board are final. END OF GENERAL DECISION https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 7/7 ATTACHMENT 4 Title VI Nondiscrimination Assurances APPENDIX A During the performance of this contract, the contractor, for itself, its assignees and successors in interest (hereinafter referred to as the "contractor") agrees as follows: (1) Compliance with Regulations: The contractor shall comply with the Regulations relative to nondiscrimination in Federally-Assisted programs of the Department of Transportation (hereinafter, "DOT") Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this contract. (2) Nondiscrimination: The contractor, with regard to the work performed by it during the contract, shall not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix B of the Regulations. (3) Solicitations for Subcontracts, including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential subcontractor or supplier shall be notified by the contractor of the contractors obligations under this contract and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin. (4) Information and Reports: The contractor shall provide all information and reports required by the Regulations or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the Sub-Recipient or the Federal Highway Administration to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish this information the contractor shall so certify to the Sub-Recipient, or the Federal Highway Administration as appropriate, and shall set forth what efforts it has made to obtain the information. (5) Sanctions for Noncompliance: In the event of the contractors noncompliance with the nondiscrimination provisions of this contract,the Sub-Recipient shall impose such contract sanctions as it or the Federal Highway Administration may determine to be appropriate, including, but not limited to: (a) withholding of payments to the contractor under the contract until the contractor complies, and/or (b) cancellation, termination or suspension of the contract, in whole or in part. (6) Incorporation of Provisions:The contractor shall include the provisions of paragraphs (1) through (6) in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. The contractor shall take such action with respect to any subcontract or procurement as the Sub-Recipient or the Federal Highway Administration may direct as a means of enforcing such provisions including sanctions for non-compliance. Provided, however, that, in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the contractor may request the Sub-Recipient to enter into such litigation to protect the interests of the Sub-Recipient, and, in addition, the contractor may request the United States to enter into such litigation to protect the interests of the United States. ATTACHMENT 5 Shadow Creak Library—City of Pearland MEP Narrative Mechanical:The HVAC system shall consist of a combination of Carrier roof top units (RTU's) and variable refrigerant flow(VRF) system.The large areas such as children library,adults library and young adults library will be served by RTU's.These units will be provided with economizer cycle to meet the energy code.The small areas such as multipurpose rooms,offices and study area will be served by VRF system.The VRF's fan coil units will be located above accessible ceiling and the condensing units will be mounted on roof. The outside air will be pretreated by roof top units and delivered to each space.The pretreated outside air RTU's will be provided with energy recovery systems and hot gas reheat humidity control and energy savings. Energy management and DDC control system will be provided to control temperature/humidity and to achieve optimum energy savings. Electrical: The electrical service shall be 480V/3ph/60HZ and shall be pad or pole mounted as required. 1200 AMP main distribution panel shall be provided to serve lighting panels and PC 1 stepdown transformers. ASCO surge protection devices shall be used on the main switch board and all 208 volts panels. Receptacles and switches shall be installed in conformance with ADA and Life Safety codes. Lighting shall be LED type with occupancy sensors to meet energy code. Daylight harvesting shall be used where applicable for energy savings. Fire Alarm: Complete fir e alarm system shall be provided to comply with all local and national codes Plumbing:The plumbing shall consist of all equipment, piping and other auxiliaries required to provide complete fire, domestic,sanitary and storm water systems. Gas heaters will be used to provide hot water. All toilet fixtures shall be off the floor,wall-hung type with automatic flush valves. Lavatories shall be provided with automatic sensor faucets. Floor drains with trap guards shall be provided in all restrooms. Automatic sprinkler system shall be provided to meet all local and national codes. rr T ,- I t - -._-....: ..-,.... . --,:.----,,.._•••••_:,. ":" f ' ' --....• ..e:47214„7,„",-,:*-',- ''' •..1,' .,,,retIte:44or: -4;-4"-:-;....,:' ''...114Aft jr, .4;., `. ' 's ;I c J.' t ' flr40 ''4 ,'��•ifF-(j ` ,d !. ` � � }^ :. i qu 1 ' ► 9 _ i /-riiii i- ,A . ki' frti I `" . ,-;-Ativ 1 : A.e.4;:',,Tftt.1-,..-,,;:-, ' 4 ., • e>e _- A .470 ill \45. '" D ;0 m z y o0.` dM "o -. m4 i it . MI6 tea_:_ .. : \ l'.-xlir " p EXISTING DETENTION s / • al 9-'a ,s g4 jd L:t' I ' t I !N.'. ! . 0 3i I110Wjl U t. ;. rho 1 p,s ' / Jr of - '' p p - - j r VI / I -_�4 1 i ,-:-/---:-..,-„(,.1112&:. i A 1 ! ;11411111V 1 ------9 /I/ j it ��"-'J) I1 �....� 1 _ lI Q Q Q IlHllo, Z "TOR ii-_+'-1rh1r ; "7 i.mrts 0 r.w= so mar nr� >o I aVvs C\Y da .„.... iMm. I— , , - j . 1- ... - , ,_.,., ......._ . 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AS 9G9CCZL IISS,9, YRJ 3X�lfl-!pJ --/ 'I j /I 9AGNS ,AORLS .AO1L •amu ,A: !A0111• "II I � AS 6.tSL /. 1 _ 1 3`Jb2D i AS ZCHL AS Z9 6SL ASK CSC 1S Ib I NS1/®_ I i596CESb' AXW9n S171(N I �BY'900'L _ ' / 'I� •LLB ANOOVe f ■ aoesLxa ' I I rI (� r�b�mrm 1■ig l\\ll����0 I - •• 1 Z t_____ II• -tea),° iS 9'9LL �S 99L1 y1 ,AOIIIS ,AOILLS I 1 ir °---- ■rini rnrr � EXHIBT A CONTRACTOR'S INSURANCE CERTIFICATES EXHIBIT B PERFORMANCE BOND STATE OF TEXAS § COUNTY OF BRAZORIA § KNOW ALL MEN BY THESE PRESENTS: That of the City of , County of , and State of Texas, as principal, and authorized under the laws of the State of Texas to act as surety on bonds for principals, are held and firmly bound unto City of Pearland as Obligee (Owner), in the penal sum of$ for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors, and assigns,jointly and severally, by these presents: WHEREAS, the Principal has entered into a certain written contract with the Owner, effective as of the day of , 20_, (the "Contract") to commence and complete the construction of certain improvements described as follows: SHADOW CREEK LIBRARY City of Pearland, Texas COP PN: FA1805 BID NO.: 0519-40 which Contract, including the Contract Documents as defined therein, is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein. NOW THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said Principal shall faithfully perform said Contract Work and shall in all respects duly and faithfully observe and perform all and singular the covenants, conditions, and agreements in and by said Contract agreed and covenanted by the Principal to be observed and performed, and according to the true intent and meaning of said Contract and Contract Documents, then this obligation shall be void; otherwise to remain in full force and effect; PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Chapter 2253 of the Texas Government Code as amended and all liabilities on this bond shall be determined in accordance with the provisions of said Statute to the same extent as if it were copied at length herein. Surety, for value received, stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract, or to the Work performed thereunder, or the plans, specifications, or drawings accompanying the same, shall in any way affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract,or to the Work to be performed thereunder. 12/2007 00610- 1 of 2 IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this instrument this day of , 20_. Principal: Surety: By: By: Title: Title: Address: Address: Telephone: Telephone: Fax: Fax: NOTICE: THE ADDRESS OF THE SURETY COMPANY TO WHICH ANY NOTICE OF CLAIM SHOULD BE SENT MAY BE OBTAINED FROM THE TEXAS DEPARTMENT OF INSURANCE BY CALLING ITS TOLL-FREE TELEPHONE NUMBER; 1-800-252-3439. END OF SECTION 12/2007 00610-2 of 2 EXHIBIT C PAYMENT BOND STATE OF TEXAS § COUNTY OF BRAZORIA § KNOW ALL MEN BY THESE PRESENTS: That of the City of , County of , and State of Texas, as principal, and authorized under the laws of the State of Texas to act as surety on bonds for principals, are held and firmly bound unto City of Pearland as Obligee (Owner), in the penal sum of$ for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors, and assigns,jointly and severally, by these presents: WHEREAS, the Principal has entered into a certain written contract with the Owner, effective as of the day of , 20_, (the "Contract") to commence and complete the construction of certain improvements described as follows: SHADOW CREEK LIBRARY City of Pearland, Texas COP PN: FA1805 BID NO.: 0519-40 which Contract, including the Contract Documents as defined therein, is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein. NOW THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said Principal shall pay all claimants supplying labor or material to him or a subcontractor in the prosecution of the Work provided for in said Contract, then, this obligation shall be void; otherwise to remain in full force and effect; PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Chapter 2253 of the Texas Government Code as amended and all liabilities on this bond shall be determined in accordance with the provisions of said Statute to the same extent as if it were copied at length herein. Surety, for value received, stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract, or to the Work performed thereunder, or the plans, specifications, or drawings accompanying the same, shall in any way affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract,or to the Work to be performed thereunder. 07/2006 00611 - 1 of 2 IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this instrument this day of , 20_. Principal: Surety: By: By: Title: Title: Address: Address: Telephone: Telephone: Fax: Fax: NOTICE: THE ADDRESS OF THE SURETY COMPANY TO WHICH ANY NOTICE OF CLAIM SHOULD BE SENT MAY BE OBTAINED FROM THE TEXAS DEPARTMENT OF INSURANCE BY CALLING ITS TOLL-FREE TELEPHONE NUMBER; 1-800-252-3439. 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Um... ••••••a .a.• c .....a r.• • ...g. .0e.rn v . sons.tl/19 sal ., ....r... 1..1e.r.e I 9 •.•... i ••••9a•••l.e• 1.. 1 I.... 3 •arr. • •w a•.I CITY OF PEARLAND ADDENDUM ADDENDUM NO. 1 Date: 08/15/2019' PROJECT: CMAR for Shadow Creek Library RFP NO. 0519-40 BID DATE: August 29,2019 FROM: City of Pearland 3519 Liberty Drive Pearland, Texas 77581 To: Prospective Offeror and Interested Parties This addendum founts a part of the bidding documents and will be incorporated into the Contract. Documents, as applicable. Insofar as the original Contract Documents,, Specifications, and Planning Documents are inconsistent,this Addendum shall govern. Please,acknowledge receipt of this Addendum on the Proposal Documents response form submitted to the City of Pearland. FAILURE TO ACKNOWLEDGE RECEIPT OF ADDENDA ON THE BID PROPOSAL FORM MAY BE CAUSE FOR DISQUALIFICATION. CONTRACT DOCUMENTS: 1. Pre-proposal meeting Sign-in Sheet 2. Proposal Document 3. Remove in its entirety the CMAR Construction Agreement and replace with the revised attached CMAR Construction Agreement 08.15.19, which now includes Attachments 1 through 6 and Exhibits A,B &C. 4. Proposed Project Schedule SPECIFICATIONS: N/A CONSTRUCTION DRAWINGS: .n N/A .. END OF ADDENDUM NO. 1 09-04-18 00900- 1 of_I -it- PEARLAND City Of Pearland h, Sign-In Sheet I �b Shadow Creek Library Mandatory Pre-Proposal Meeting August 15,2019 10:30 a.m. Name Phone E-mail Teze, 54- It 7/3, g3g. .....srstitzr-czet)emuNiurrAN Comsfitae,Lfain co.44. cla,v4:. /),-.04) 812 2/ - co C a srezo"er-6a; z 44 141000 t - .23 -101.1402 h6. hosciria4-Z"Ifreassinv660.040r) R4 a Rt o s1_1,,.1.1 r a wt,a 3L o SAS A -r v C k- 0261 - 83-36 y Ift c 4:211 BE e o, r '1\1) .1/4rt\r\oor-k-t haNtilbilitaers.cor z\t yK rrt iG ' ' F 1' '. '"Ps$S Colm:144.6kulc.lef+ " '-if' + i.nit. (13 -113kZ"itil elq`i 16-AjetIcpv-1,,k4,64/ Page 1 o PEARLAND City of Pearland .�, Sign-in Sheet i Shadow Creek Library Mandatory Pre-Proposal Meeting August 15 2019 10:30 a.m., N ieret+4 lel. _ ,Phone E-mail tgez -FA2,90 iliA a egeoryAsw4e. --tex.4061 —roS-1-1 o L)ixittitN, 2.Z1-<g t3 -7/ 3 _ Ji.„,sfirl. k. to, rA IL-OU11411\ ' .11(1Apc' 1)22- .41-vs- _e bt.p _ U vi it l o P T?? 1004. am-S6L-- it,izet-,4,o 113- 1136 ' 4:-7'1%'7 '-- .41?Irir4A) ti (otsiahf.) ',0 4 'o 1, Zt64,..-- G &r -+- 1 - 29- e:D ' u 0 r . C. 'Daul J., a.1 e 1 `' - ou iita.ta e. t cur c JE,A Y1t L. €= 5 Ls,. te, z, i7 0 1, f-p ear i an . J0 Page 2. of ' ` 1"‘Allf .44,°4'. DEAD City of Pearland Sign-In Sheet Shadow Creek Library Mandatory Pre-Proposal Meeting August 15,2019 10:30_a.m. Name Phone E-mail f tA;(A. c)et, Zg-t- 1$4 -(3its Ipapee4,eznIL„,._,._,„, e_tviA i),e_ L�s'GC d.1� i5sc 1tS- y-7L-0('S ( ?it.rc-e- . c4,c,.;olLlin 0AI AZ).:4 LA-0 10.+1 s-tiCJ .- 1 I,1 B' G s 0$L..4.d 1I.A.e ,r.01-rct.i.ellc. , c© t. Laura_art tkrth ? 1 Cotol3 - ' ('/ ,.+11,G -tr.a+ c( t•ar er an' CO i) ,Page . of 4 P A D City of Pearlanci Sign-In Sheet Shad©w Creek Library Mandatory Pre-Proposal Meeting August 15,2019 10:30 a.m. Name Phone E-mail 6 * r\ `7S I 41\ Page of 4"/ Shadow Creek Library August 29,2019 PROPOSAL DOCUMENTS CONTENTS Contractor Experience&Qualifications Contractor Key Personnel Contractor References Contractor Current Work Schedule/Record Contractor Litigation, Claims, Reputation & Compliance Contractor Safety Record Contractor Quality Control Program Contractor Financial Resources Contractor's Proposal Contractor Cost Reduction Suggestions Certification Shadow Creek Library August 29,2019 Shadow Creek Library August 29, 2019 CONSTRUCTION MANAGER'S EXPERIENCE&QUALIFICATIONS Instructions: Please provide a response to ALL informational requests filling in all blanks. Failure to provide a complete response is terms for rejection of proposal. If requested information does not apply place"N/A"in the blank. If no information exists place "End of Available Information" in the blank. Construction Manager's Name: I. General a Qualification information submitted shall be applicable only to the company entity or branch that will perform this Work. h Attach your Project Organization Chart c. Submit list of other fully staffed branch offices d Submit list of corporate officers, partnerships or owners o forganization. II. History a Please specify: _Corporation- State ofIncorporation Partnership Sole Proprietorship _Joint Venture b Specify: In continuous business since: c Specify: Large Business(100 or more employees) Small Business (fewer than 100 employees) Other M. Experience a Nounallyperforms % of work with own forces. b. Proposing to perform % of work for this project with own forces. i. List Trades (additional attachments as required) Shadow Creek Library August 29,2019 Shadow Creek Library August 29, 2019 Identify and describe the firm's past experience for providing Construction Managerat Risk services that are MOST RELATED TO THIS PROJECT within the last five(5) years. List the projects in chronological,order starting with the latest. (Similar Projects in Size and Scope Completed in Last Five Years)If additional space is required attach a separate document listing project information as shown below. Project Municipality $Amount Type Date Shadow Creek Library August 29,2019 Shadow Creek Library August 29,2019 CONTRACTOR REFERENCES References: Name 5 projects of similar work, giving owner's name, owner's representative's name,project architect's name, and telephone numbers for each. References must be provided for owners of similar size and scope as the proposed Cityproject. 1. 2 3. 4. 5. Shadow Creek Library August 29, 2019 CONSTRUCTION MANAGER'S KEY PERSONNEL I. Project Team Information a. Resumes of key personnel shall also be included. Professional affiliations, memberships, and certifications for each of the key personnel must be included and will be used to evaluate the proposed team and personnel. b. Commitment indicates the amount of time (in percent) that the staff person would be available to work on the project during the preconstruction,permitting and construction phases of work. Indicted by"N/A"where the individual is not proposed to be involved in particular phase of work. For example,if a person would be available 20 hours per week out of a 40-hour work week,reply 50%. c. Provide this infoimation for as many projects as are applicable. Project Manager Years' Experience Projects Commitment:Preconstruction: % Permitting: °fo Construction: % Estimator Years' Experience Projects Commitment:Preconstruction Permitting: °!`o Construction Modeling Years' Experience Projects Commitment: Preconstruction: Permitting: % Construction: °o Shadow Creek Library August 29,2019 CONSTRUCTION MANAGER'S KEY PERSONNEL-CONTINUED Project Engineer Years' Experience Projects Commitment:Preconstruction: Permitting: Construction: Assistant Project Manager Years'Experience Projects Commitment:Preconstruction: Qfo Permitting: % Construction: °10 Superintendent Years' Experience Projects Commitment: Preconstruction: °fo Permitting: %o Construction: Scheduler Years' Experience Project Commitment: Preconstruction: % Permitting: % Construction: % Shadow Creek Library August 29,2019 CONSTRUCTION MANAGER'S KEY PERSONNEL-CONTINUEJD Quality Control Person Years' experience Project Commitment: Preconstruction: Permitting:_ %4 Construction: °fo' Shadow Creek Library August 29, 2019 CONSTRUCTION MANAGER'S CURRENT WORK SCHEDULE/RECORD I. Current Work Schedule a. List major construction projects your organization has in-progress using the format below: Name&Location Contract$ % Complete Projected Owner Contact of Project Completion Date And Phone b. Total number and dollar amount of contracts currently in progress: Number c. Largest single contract amount currently in progress: Project,Name: Projected Completion Date Dollar Amount II. Past Record a. List major construction projects your organization has completed in the last 5 years with completion dates and references. Name &Location Contract$ Date Completed Owner Contact of Project and Phone b. Volume of work completed over last 5 years: 2014$ 2015$, 2016$ 2017$ 2018$ Shadow Creek Library August 29,2019 CONSTRUCTION MANAGER'S LITIGATION, CLAIMS,REPUTATION&:. COMPLIANCE I. Please answer the following questions a. Has your firm ever defaulted, been declared to be in default, or failed to complete any work awarded? yes no If yes, stipulate where and why: b. Has your firm ever paid(or had withheld from payment) liquidated damages for failure to complete a contract ontime` yes no If yes, stipulate where and why: c. Has your organi7atiou ever been charged with or paid a fine for non-compliance of State and/or Federal statutes or regulations? _Yes no If yes, stipulate where and why: II.. List pending claims and/or litigation against or involving project owners at time of." submitting Proposal. Show project name,owner and summary explanation. Shadow Creek Library August 29,2019 CONSTRUCTION MANAGER'S SAFETYRECORD I List your organization's Workers Compensation Experience.Modification Rate(EMR)for the last five years, as obtained from your insurance agent. 2014 2015. 2016 2017 2018 IL Complete the matrix below for the last five years,as obtained from OSHA No. 200 Log: 2014 2015 2016. 2017 2018 Number of injuries &illnesses Number of lost time accidents Number of recordable cases Number of fatalities Number of employee direct hire fixed hours (round to 1,000's) III., Please answer the following questions regarding your safetyprogram a. Are regular project safety meetings held for Field Supervisor(s)? __yes no If yes, frequency: weekly _bi-monthly monthly �as needed b. Are project safety inspections conducted? yes no I:f yes,who performs inspections? How often? Who is required to attend? c. Does your organization have a written safetyprogram? yes no If yes,provide a copy. It will become a compliance document upon contract award. Shadow Creek Library August 29,2019 CONSTRUCTION MANAGER'S SAFETY RECORD-CONTIUNED d. Does your organization have a safety orientation program for new employees? yes no For employees promoted to Field Supervisor? yes no If yes, does your Supervisor Safety Program include instructions on the following: Safety workpractices yes no Tool box safety meetings yes no First aid procedures yes no Accident investigation yes no Fire protection yes no New worker's orientation yes no Shadow Creek Library August 29,2019 CONTRACTOR'S QUALITY CONTROL PROGRAM Submit a complete quality control program which will become a compliance document upon contract award. IL This plan should address all aspects of quality control including responsibility for surveillance work, acceptance, rejection, documentation and resolution of deficiencies, trend analysis and corrective action and interface with City's inspectors. Shadow Creek Library August 29, 2019 CONSTRUCTION MANAGER'S FINANCIAL RESOURCES Submit your last audited financial statement and most current financial statement. Shadow Creek Library August 29, 2019 CONSTRUCTION MANAGER'S PROPOSAL FORM Date: PROPOSAL FROM: PROPOSAL TO: City of Pearland, Texas 3523 Liberty Drive Pearland, TX 77581 PROJECT CONSTRUCTIONBUDGET: The Undersigned proposes to furnish all labor, design consultation services, tools, equipment and management associated with the Pre-Construction phase of the project to construct Shadow Creek Library and to perform the work required for construction of said building, at the location set out by the Plans and Specifications, in strict accordance with the Fees established herein below. Construction Manager agrees to furnish the City, no later than 90% completion of Construction Documents a Guaranteed Maximum Price for the cost of the construction of the project. In submitting this Proposal, it is understood that this Proposal may not be altered or withdrawn for ninety(90) days, and that the Owner has reserved the right to reject any and all Proposals. The Undersigned certifies that this Proposal is made in good faith,without collusion or connection with any other person, persons, partnership, company, firm, association, or corporation offering Proposals on this work, for the following sum or prices to wit: 1. PRECONSTRUCTION FEE For all pre-construction phase services including pre-planning, design consulting, cost estimating, scheduling, value engineering, constructability reviews; the total cost for these services list the lump sum amount: Dollars S 2. GENERAL CONDITIONS Proposed cost for General Conditions to accommodate the onsite staff. These items will include, but not be limited to, office trailers, phones, furniture, copiers, computers, software, supplies, cleaning, move in/move out, printing expenses, site personnel's radios, pagers, phones, etc. construction manager's required equipment, insurance premiums, and other items specifically provided for in Attachment 1 Dollars$ 3. CONSTRUCTION MANAGER AT RISKFEE List your proposed fee as a percentage of construction cost including all overhead and profit: Percent% - 4. NUMBER OF PROPOSED CONSTRUCTION DAYS List proposed number of calendar days from the Notice to Proceed that should be sufficient time for performing all work: Days Shadow Creek Library August 29, 2019 RECEIPT OF ADDENDA I hereby acknowledge receipt of the following Addenda: CONSTRUCTION MA_NAGER'S NAME: CONSTRUCTION MANAGER'S SIGNATURE: Shadow Creek Library August 29,2019 CONSTRUCTION MANAGER'S COST REDUCTION SUGGESTIONS I. The Offeror is encouraged to suggest to the City possible cost reduction items to be taken into consideration prior to awarding a construction contract. Offeror may include this listing as a referenced attachment if additional space is needed. Please do not provide costs at this time,only suggestions for items to be taken into consideration. Shadow Creek Library August 29, 2019 CERTIFICATION OF PROPOSAL • The undersigned affirms that they are duly authorized to execute the Construction Agreement,"that this,:Proposal has not- been prepared in collusion with any other Offeror,, aud,that the contents of • this Proposal have not been communicated to any other Offeror prior to the official opening of this Proposal. Additionally,-the undersigned affirms that the firm.is willing to sign the enclosed City of College Station Construction Agreement. • Signed By; Title: Typed Name: Company Name • Phone No. Fax No.: Bmail: ' V Proposal Address: P.O. Box or Street. City State Zip Order Address: P.O. Box or Street City State Zip • • Remit Address: P.O.Box or Street City State Zip Federal,Tax ID No.: Date: Shadow Creek Library August 29,2019 ATTACRIMEN T 1 GENERAL CONDITIONS DETAIL $Cost/Unit; Including DESCRIPTION QTY. UNIT All Burden TOTAL &Insurance,Etc. , On Site PrajectManagement Project Executive MO Project Manager MO Superintendent(s) MO Asst. Superintendent MO Office Engineer(s) MO Project Expeditor MO Scheduler MO project Support Staff MO Cost Engineer MO Bonds and Insurance OL,Auto,:WC&Builders Risk LS Payment&PerformanceBonds LS Temporary Project Construction and Utilities for CM Staff Dumpsters or CM staff MO Monthly Telephone Service MO Project Water MO TemporaryToilets MO Temporary FireProtection: MO fetephone System Installation LS Ceremonies LS' Field Offices&Office Supplies for CM Staff Job Photos and Videos MO CM Project Specific Signage LS Postage andDeliveries MO Mobilization for Office Trailers LS Monthly Office Rental Costs MO Storage Trailers MO Field Office Equipment MO Vehicles including Fuel,Maintenance&Ins MO Safety Equipment_ MO First Aid Supplies MO Job%Office Supplies MO Janitorial Supplies MO Project Computers and Software MO Field Office Furniture MO Copy Machineand.Supplies MO Communications Equipment; MO Advertising MO TOTAL GENERAL CONDITIONS CITY OF PEARLAND ADDENDUM ADDENDUM NO. 2 Date: 08/22/2019 PROJECT: CMAR for Shadow Creek Library RFP NO.: 0519-40 BID DATE: August 29, 2019 FROM: City of Pearland 3519 Liberty Drive Pearland, Texas 77581 To: Prospective Offeror and Interested Parties This addendum forms a part of the bidding documents and will be incorporated into the Contract Documents, as applicable. Insofar as the original Contract Documents, Specifications, and Planning Documents are inconsistent, this Addendum shall govern. Please acknowledge receipt of this Addendum on the Proposal Documents response form submitted to the City of Pearland. FAILURE TO ACKNOWLEDGE RECEIPT OF ADDENDA ON THE BID PROPOSAL FORM MAY BE CAUSE FOR DISQUALIFICATION. CONTRACT DOCUMENTS: 1. Remove and replace the City of Pearland Standard Form of Agreement Between City and Construction Manager At Risk document,which contains information from a sample project used as an example.The corrected Sections are: a. Section 4 Compensation and Payments for Pre-Construction Services. b. Section 5 Compensation for Construction Phase Services c. Section 6 Cost of the Work for Construction Phase 2. Remove and replace in its entirety Attachment 3-Davis Bacon Wage.Determination with the updated wage determination published on 07.19.19. SPECIFICATIONS: N/A CONSTRUCTION DRAWINGS: N/A QUESTIONS/RESPONSES: Q. Can you please clarify if the CM @ Risk proposals to be submitted are for pre-construction services only or Preconstruction services and Construction Services?Addendum states for Preconstruction services only per the original proposal. Do we only fill out the proposal form for the Preconstruction services and leave blank the questions for the Construction services? A. Addendum 1 provided the CONSTRUCTION MANAGER'S PROPOSAL FORM. Proposers are to provide their proposed fees as described therein including: Pre-Construction Services as detailed in Section 2 Construction Managers Responsibilities, Sub-sections 2.1 and 2.2 of the Standard Form of Agreement. Costs for General Conditions,the CMAR's Fee as a percentage of 09-04-18 00900- 1 of 3 CITY OF PEARLAND ADDENDUM Construction Cost including overhead and profit and the Number of Proposed Construction Days is also required as part of the proposal. Q. Page 7, Section 10.3.1 references"Special Conditions"as a contract document, can these be provided if they are applicable? A. The referenced"Special Conditions" (Attachment 2)was added via Addendum 1. Q. Page 41,Section 1.11.10.1, can the"Contractor's Affidavit of Payments of Debts and Claims", "Contractor's Affidavit of Release of Liens"be provided for review? A. The Contractor's Affidavit of Payment of Debts and Clams is a standard AlA Document G706- 1994.And Contractor's Affidavit of Release of Liens is the standard AIA Document G706A-1994. Q. Page 76,List of Attachments, can the"Owner's Insurance Requirements of Contractor"and "Special Conditions of the Contract"be provided, if they are applicable? A. The referenced documents(Attachments 1 and 2)were added via Addendum 1. Q. The Key Personnel included in the RFP form include: Project Manager,Estimator, Modeling, Project Engineer,Assistant Project Manager, Superintendent, Scheduler and Quality Control Person. Question: Is this what the City of Pearland will require for the project?Will it be acceptable to submit a project team differing from that included on the RFP for to provide best value to the owner?Example team:Project Manager,Estimator,Modeling, Superintendent,Project Engineer,Scheduler and Quality Control Person. A. The submission of resumes for Key Personnel is intended to commit specific personnel to the Shadow Creek Ranch Library project. The request for resumes is for the evaluation of personnel and their specific experience in performing work similar in nature to what is believed to be necessary to complete the project. Key Personnel deemed essential to the performance of the work should be dedicated to the project. Changes to personnel identified in the submittal will require Owner's approval of proposed substitutions. Q. Please confirm that for the Construction Manager's Key Personnel section of the Proposal Document, all of these positions are not separate mandatory positions for this project. A. All positions may not be required for the proper management of the project. However, it is the intent of the RFP for the CMAR to identify and provide background experience information on those personnel considered necessary by the Proposer to properly manage the project and provide ALL SERVICES required by this RFP. Q. We see that Modeling is a key personnel position,but this is not listed in the Allowable General Conditions Detail. Please confirm that the Building Information Modeling(BIM)requirements shall be considered Cost of Work. A. The cost of the CMAR staff to provide BIM coordination and clash detection should be a line item in the general conditions,costs associated with any subcontracts use of BIM should be included as a cost of work 09-04-18 00900-2 of 3 CITY OF PEARLAND ADDENDUM Q. Can a description of the building foundation(spread footings,drilled piers, auger cast-piles, etc.) be supplied for assistance with the creation of our construction schedule? A. Without confirmation from Geo Tec, it is the Architects' assumption that the library foundation will be drilled piers. This assumption is based off other recently completed structures. Q. Can a description of the building superstructure(cast in place,PEMB, structural steel,etc.)be supplied for assistance with the creation of our construction schedule? A. It is the Architects' assumption that the library superstructure will be primarily structural steel Q. Section 5.1.4 Under"Scope of Work"indicates that 6 estimates are to be supplied by the selected CMAR. It was noted in the pre-submittal meeting that no estimating support was expected to be required for the Schematic Design Phase. Is this still correct? A. The Scope of Work described in the RFP contains a list of progressive completion points where the Owner has concluded that cost estimates will best serve the furtherance of cost control. Please follow that schedule of cost estimates. Q. Paragraph 1.0 (Instructions to Offerors) shows the estimated construction costs as$17.0 million dollars.Paragraph 6.0(Estimated Budget) shows the estimated construction budget as $16,600,000. Please specify the correct dollar amount. A. The estimated cost of construction is$16,600,000. The project budget is$17,000,000 which includes other project cost such as Construction Materials Testing Services, and miscellaneous Owner's expenses. Q. The sample Construction Agreement that was attached in the Addendum has the following dollar amounts listed: a. Compensation for Pre-construction Fee: b. Compensation for 1.Construction Phase 2.General Conditions: 3.CMAR Fee: c.Paragraph 6.1.1.1.4—Wages or salaries of the Construction Manager's supervisory personnel—a table is attached which apparently is from a previous contract agreement. A.Remove and replace the Standard Form of Agreement,which contains information from a sample project used as an example.The information has been removed with this Addendum 2. The sections to be replaced are: a. Section 4 Compensation and Payments for Pre-Construction Services. b. Section 5 Compensation for Construction Phase Services c. Section 6 Cost of the Work for Construction Phase Q.Wage Rate table needs to be updated. A.THE DOCUMENT HAS BEEN REPLACED in its entirety Attachment 3-Davis Bacon Wage Determination with the updated wage determination published on 07.19.19. END OF ADDENDUM NO. 2 09-04-18 00900-3 of 3 CITY OF PEARLAND STANDARD FORM OF AGREEMENT BETWEEN CITY AND CONSTRUCTION MANAGER AT RISK This Agreement is entered into by and between the City of Pearland, a Texas home-rule municipal corporation (the"City") and a Texas corporation (the "Construction Manager"or Contractor") for the construction of City of Pearland, Shadow Creek Ranch Library. SECTION 1. GENERAL PROVISIONS 1.1 Relationship of the Parties. 1.1.1 The Construction Manager accepts the relationship of trust and confidence established with the City by this Agreement, and covenants with the City to furnish the Construction Manager's reasonable skill and judgment and to cooperate with the Architect in furthering the interests of the City. The Construction Manager shall furnish construction administration and management services and use the Construction Manager's best efforts to perform the Project in an expeditious and economical manner consistent with the interests of the City. The City shall endeavor to promote harmony and cooperation among the City, Architect, Construction Manager and other persons or entities employed by the City for the Project. 1.2 General Conditions. 1.2.1 Basic Definitions. 1.2.1.1 Addenda. Addenda are written or graphic instruments issued prior to the execution of the Contract, which modify or interpret the proposal documents, including Drawings and Specifications, by additions, deletion, clarification or corrections. Addenda will become part of the Contract Documents when the Agreement is executed. 1.2.1.2 Approved, Approved Equal and Approved Equivalent, or Equal relate to the substitution of materials, equipment or procedure approved in writing by the Architect prior to receipt of proposals. The substitution procedure process to be followed prior to receipt of competitive sealed proposals is described in the instruction to proposers. 1.2.1.3 Calendar Day. A "calendar day" is any day of the week or Month or year,no days being excepted.Unless otherwise expressly provided, all references to "day(s)"shall mean Calendar Day(s). 1.2.1.4 City/ City Representative. Whenever the word "City" is used, it shall mean and be understood as referring to the City of Pearland, Texas. The word "Owner" shall refer to the same entity and may be used interchangeably. Whenever the words "City's Representative" or "Representative" are used, it shall mean and be understood as referring to the City Project Manager or his delegate, who shall act as the City's agent. The City's Representative may inspect and issue instructions but shall not directly supervise the Contractor. The City's inspector has authority to reject the Work for failure to comply with the Contract Documents and/or applicable laws. 3 1.2.1.5 Contract.Definitions: The term "Contract Documents" shall mean those documents listed in Paragraph 1.3. The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a written Modification. The Contract Documents shall not be construed to create a contractual relationship of any kind(1) between the Architect and Contractor, (2) between the City and a Subcontractor or Sub-subcontractor, (3)between the City and Architect or(4)between any persons or entities other than the City and Contractor. The Architect shall be entitled,however, to performance and enforcement of obligations of the Contractor under the Contract intended to facilitate performance of the Architect's duties. 1.2.1.6 Contractor. Whenever the word "Contractor" is used, it shall mean the person(s), partnership, or corporation who has agreed to perform the work embraced in this Agreement and the other Contract Documents; specifically it shall mean the Construction Manager. 1.2.1.7 Contract Time. The period of time which is established in the Contract Documents for Substantial Completion of the Work. This period of time shall be accounted for in Calendar Days, as defined above, and is not subject to adjustment or extension without the written agreement of the City. The following definitions shall apply to Contract Time calculations: a. Work Day: As used herein, a "Work Day" is defined as any Monday through Friday, not a legal holiday, and any Saturday or Sunday specifically approved by the OWNER, in which the CONTRACTOR can perform six or more hours of work per the current construction schedule. CONTRACTOR agrees to request specific approval from the Construction Manager or Owner, in advance, to perform work on Saturdays or Sundays and in so doing agrees to pay all charges and costs for Inspection and or Construction Management services required during the performance of any such approved work. b. Rain Day: As used herein, is defined as any WORK DAY during which weather related conditions prevent the CONTRACTOR from performing four (4) or more consecutive hours of work on critical path items as identified in the current construction schedule. CONTRACTOR shall record Rain Days on the Pay Application each month for the review and possible approval by the OWNER. The approved Rain Day is then added to the Contract Time. c. IMPACT DAY: As used herein, is a day that is added to the CONTRACT TIME by the OWNER by Change Order to extend the Contract Time by one full Work Day. Impact Days, once approved by the OWNER, shall extend the Contract Time on a one-to-one basis to replace a Work Day lost to conditions that prevented the CONTRACTOR from performing four (4) or more consecutive hours of work on critical path items. Impact Days are added to the Contract Time by Change Order only at the end of the work and then only if, in the opinion of the OWNER, a 4 time extension is warranted due to delays beyond the control of the Contractor and required to complete the work within the Contract Time 1.2.1.8 Drawings. The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams. 1.2.1.9 Extra Work. The term "Extra Work" shall mean and include work that is not covered or contemplated by the Contract Documents but that may be required by the City's Representative and approved by the City in writing prior to the work being done by the Contractor. 1.2.1.10 Final Completion. The term "Final Completion" shall mean that all the work has been completed, all final punch list items have been inspected and satisfactorily completed, all payments to material suppliers and subcontractors have been made, all documentation and warranties have been submitted, and all closeout documents have been executed and approved by the City. 1.2.1.11 Interpretation of Phrases. Whenever the words "directed", "permitted", "designated", "required", "considered necessary", "prescribed", or words of like import are used, it is understood that the direction, requirement, permission, order, designation, or prescription of the City's Representative is intended. Similarly, the words "approved", "acceptable", "satisfactory", or words of like import shall mean approved by, accepted by, or satisfactory to the City's Representative. In the interest of brevity the Contract Documents may omit modifying words such as "all" or"any" and articles such as "the" and "an", but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. 1.2.1.12 Nonconforming work. The term "nonconforming work" shall mean work or any part thereof that is rejected by the City's Representative as not conforming with the Contract Documents. 1.2.1.13 Notice to Proceed. A notice that may be given by the Owner to the Contractor that directs the Contractor to start the Work. 1.2.1.14 Partial Substantial Completion. Designation of Partial substantial Completion may be provided on components of the Work that must be placed into service prior to the completion of the entire Work. The contractor's One Year Warranty period for these items shall begin on the date of Partial Substantial Completion as designated by the Architect. The Architect shall determine and make all such designations. 1.2.1.15 Parties. The "parties"are the City and the Contractor. 1.2.1.16 Project. The term "Project" shall mean and include all that is required to obtain a final product that is acceptable to the City. The term "work"shall have like meaning. The Project is the total construction of which the Work performed under the Contract Documents may be the whole or a part and which may include construction by the 5 City or by separate contractors. 1.2.1.17 ProTrak. As used herein describes the City's project management software used to enhance communications between the project team members. All product submittals, RFI's, RFPs, plan sheet changes, plans and specs are held and available to all team members within this web-based software. All payment applications are made and approved within the software. All team members will be given access and will use this software platform for project document transmittals. 1.2.1.18 Punch List. A comprehensive list prepared by the City prior to Substantial Completion to establish all items to be completed or corrected; this list may be supplemented by the Architect or the City. 1.2.1.19 Specifications. The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services. Organization of the Specifications into divisions, sections and articles, and arrangement of drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. 1.2.1.20 Subcontractor. The term "subcontractor" shall mean and include only those hired by and having a direct contact with Contractor for performance of work on the Project. The City shall have no responsibility to any subcontractor employed by a Contractor for performance of work on the Project, and all subcontractors shall look exclusively to the Contractor for any payments due. 1.2.1.21 Substantial Completion. The term "Substantially Completed" means that in the sole discretion of the City's Representative, the Project, including all systems and improvements, is in a condition to serve its intended purpose but still may require minor miscellaneous work and adjustment. Final payment of the Agreement Price, including retainage, however, shall be withheld until Final Completion and acceptance of the work by the City. Acceptance by the City shall not impair or waive any warranty obligation of Contractor. 1.2.1.22 Work. The term "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor,materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project. The Work includes all labor, parts, supplies, skill, supervision, transportation, services, and other facilities and things necessary, proper or incidental to the carrying out and completion of the terms of the Contract Documents and all other items of cost or value needed to produce, construct and fully complete the Work identified by the Contract Documents. 1.2.1.23 Unless otherwise stated in the Contract Documents, words which have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. 6 1.3 Contract Documents. 1.3.1 The Contract Documents and their priority shall be as follows: 1.3.1.1 This signed Agreement 1.3.1.2 Addendum to this Agreement 1.3.1.3 Special Conditions 1.3.1.4 Technical specifications 1.3.1.5 Drawings 1.3.1.6 Instructions to Bidders and any other notices to Bidders or Contractor 1.3.1.7 Performance bond,Payment bonds,Bid bonds and Special bonds 1.3.1.8 Contractor's Proposal 1.3.2 Where applicable, the Contractor will be furnished one (1) CD of plans, drawings, specifications, and related Contract Documents for its use during construction. Plans and specifications provided for use during construction shall be furnished directly to the Contractor only. 1.3.3 The Contractor shall distribute copies of the plans and specifications to suppliers and subcontractors as necessary. The Contractor shall keep one (1) copy of the plans and specifications accessible at the work site with the latest revisions noted thereon. For proper execution of the work contemplated by this Agreement. 1.3.4 All drawings, specifications, and copies thereof furnished by the City shall not be re-used on other work, and with the exception of one(1) copy of the signed Contract Documents, all documents, including sets of the plans and specifications and"as built" drawings, are to be returned to the City on request at the completion of the work. All Contract Documents, models, mockups, or other representations are the property of the City. In the event of inconsistencies within or between parts of the Contract Documents, the Contractor shall (1) provide the better quality or greater quantity of Work, or (2) comply with the more stringent requirement, either or both in accordance with the City's interpretation. 1.4 Owner. 1.4.1 The Owner (or City) is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Owner" means the City of Pearland or the City's authorized representative. The terms "Owner"and"City"may be used interchangeably throughout this Agreement. 1.4.2 The presence of the City or Architect at the Work site does not imply 7 acceptance or approval of Work. 1.4.3 Information And Services Required Of The Owner. 1.4.3.1 Information or services reasonably necessary for the Work and under the City's control shall be furnished by the City with reasonable promptness where requested in writing by the Contractor. In any instance where information or services from the City or Architect is required, Contractor shall promptly notify the Architect in writing, with a copy to the City, of the particular need. Absent such notification, any Claim based upon lack of such information or services shall be waived. 1.4.4 Owner's Right to Stop the Work. 1.4.4.1 If the Contractor fails to correct Work which is not in accordance with the requirements of the Contract Documents as required by Paragraph 1.14.2. or persistently fails to carry out Work in accordance with the Contract Documents, the City may issue a written order to the Contractor to stop the Work,or any portion thereof, until the cause for such order has been eliminated; however,the right of the City to stop the Work shall not give rise to a duty on the part of the City to exercise this right for the benefit of the Contractor or any other person or entity. 1.4.5 Owner's Right to Carry Out the Work. 1.4.5.1 If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a seven-day period after receipt of written notice from the City to commence and continue correction of such default or neglect with diligence and promptness, the City may, without prejudice to other remedies the City may have,correct such deficiencies. In such case an appropriate Change Order shall be issued deducting from payments then or thereafter due the Contractor the cost of correcting such deficiencies, including compensation for the Architect's additional services made necessary by such default, neglect or failure. If payments then or thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference to the City. 1.4.5.2 After the Work is complete, the City may make emergency repairs to the Work, if necessary, to prevent further damage, or if the Contractor does not promptly respond to a notice of condition requiring repairs. Contractor shall be responsible to City for this cost if the repairs are due to the Contractor's defective Work. If payments then or thereafter due the Contractor are not sufficient to cover such costs, the Contractor shall pay the difference to the City. 1.4.6 Owner's Right to Use or Occupy. 1.4.6.1 The City shall have the right to occupy or use without prejudice to the right of either party, any completed or largely completed portions of the Project, notwithstanding the time for completing the entire Work or such portions may not have expired. Such occupancy and use shall not constitute acceptance of any Work not in accordance with the Contract Documents. 1.5 Contractor. 8 1.5.1 The Contractor is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Contractor"means the Contractor or the Contractor's authorized representative. 1.5.2 The Contractor shall perform the Work in accordance with the Contract Documents 1.5.3 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either by activities or duties of the Architect in the Architect's administration of the Contract, or by tests, inspections or approvals required or performed by persons other than the Contractor. 1.5.4 Review of Contract Documents and Field Conditions by Contractor. 1.5.4.1 The Contractor shall carefully study and compare the Agreement, Conditions of the Contract, Drawings, Specifications, Addenda, and Modifications and shall at once report to the Architect any error, inconsistency, or omission the Contractor discovers. These obligations are for the purpose of facilitating construction by the Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents; however, any errors, inconsistencies or omissions discovered by the Contractor shall be reported promptly to the Architect as a request for information in such form as the Architect may require. If the Contractor performs any construction activity knowing it involves a recognized error, inconsistency or omission in the Contract Documents without such notice to the Architect, the Contractor shall assume responsibility for such performance and shall pay the total amount of the attributable costs for correction. Contractor shall not be liable to City or Architect for any damage resulting from such error,inconsistency or omission which Contractor should not have discovered or which Contractor did discover and at once so reported. Contractor shall do no Work without approved Drawings and Specifications marked Issued for Construction. 1.5.4.2 If the Contractor fails to perform the obligations of Paragraph 1.5.4.1., the Contractor shall pay such costs and damages to the City as would have been avoided if the Contractor had performed such obligations. 1.5.4.3 The Contractor shall not be entitled to additional compensation for the "rework portion" of any additional work caused by its failure to carefully study and compare the Contract Documents prior to execution of the Work. 1.5.4.4 The Contractor shall make a reasonable attempt to interpret the Contract Documents before asking the Architect for assistance in interpretation. The Contractor shall not ask the Architect for observance of work prior to the Contractor's field superintendent's personal inspection of the Work and his determination that the Work complies with the Contract Documents. The Contractor shall arrange meetings prior to commencement of the Work of all major Subcontractors to allow the Subcontractor(s) to ask for any interpretation it may require. 1.5.4.5 If, in the opinion of the Architect, the Contractor does not make a reasonable effort to comply with the above requirements of the Contract Documents 9 and this causes the Architect or its Consultants to expend an unreasonable amount of time in the discharge of the duties imposed on the Architect by the Contract Documents,then the Contractor shall bear the cost of compensation for the Architect's additional services made necessary by such failure. The Architect will give the Contractor prior notice of intent to bill for additional services related to above requirements before additional services are performed. 1.5.4.6 If the Contractor has knowledge that any of the products or systems specified will perform in a manner that will limit the Contractor's ability to satisfactorily perform Work or to honor Contractor's Warranty, Contractor shall promptly notify the Architect,in writing,providing substantiation for Contractor's position. Any necessary changes, including substitution of materials, shall be accomplished by appropriate Modification. 1.5.5 Supervision and Construction Procedures. 1.5.5.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters. If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures. If the Contractor determines that such means, methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely written notice to the City and Architect and shall not proceed with that portion of the Work without further written instructions from the Architect. 1.5.5.2 The Contractor shall be responsible to the City for acts and omissions of the Contractor's employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for or on behalf of the Contractor or any of its Subcontractors. It is understood and agreed that the relationship of the Contractor to City shall be that of an independent contractor. Nothing contained herein or inferable herefrom shall be deemed or construed to(1)make Contractor the agent, servant or employee of the City, or(2) to create any partnership,joint venture, or other association between City and Contractor. Any direction or instruction by City or any of its authorized representatives in respect of the Work shall relate to the results the City desires to obtain from the Work, and shall in no way affect Contractor's independent contractor status described herein. 1.5.5.3 The Contractor shall be responsible for inspection of portions of Work already performed to determine that such portions are in proper condition to receive subsequent Work. 1.5.5.4 Contractor shall execute the Work in a good and workmanlike manner, continuously and diligently in accordance with generally accepted standards of construction management and practice for construction of projects similar to the Project, 10 using qualified, careful and efficient workers and in conformity with the provisions of this Contract and the other Contract Documents. 1.5.6 Labor and Materials. 1.5.6.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. 1.5.6.2 The Contractor may make substitutions only with the consent of the City, after evaluation by the Architect and in accordance with a Change Order. 1.5.6.3 The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Contract. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. 1.5.7 Warranty. 1.5.7.1 The Contractor warrants to the City and Architect that materials and equipment furnished under the Contract will be of good quality and new unless otherwise required or permitted by the Contract Documents, that the Work will be free from defects not inherent in the quality required or permitted, and that the Work will conform to the requirements of the Contract Documents and recognized industry standards. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance (unless such maintenance is Contractor's responsibility), improper operation, or normal wear and tear. If required by the Architect, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. The warranties set out in this Paragraph are not exclusive of any other warranties or guarantees set out in other places in the Contract Documents or implied under applicable law. 1.5.7.2 Prior to final payment, Contractor shall furnish any manufacturer warranties required by the Contract Documents. 1.5.7.3 When deemed necessary by the City, and prior to installation of any items specifically made subject to a performance standard or regulatory agency standard under any provision of the Contract Documents, Contractor shall furnish proof of conformance to the Architect. Proof of Conformance shall be in the form of(1) an affidavit from the manufacturer certifying that the item is in conformance with the applicable standard, (2) an affidavit from a testing laboratory certifying that the product has been tested within the past year and is in conformance with the appreciated standard, or(3)such further reasonable proof as required by the Architect. 1.5.7.4 The warranties of Contractor provided in Subparagraph 11 1.5.7.1. shall in no way limit or abridge the warranties of the suppliers of equipment and system which are to comprise a portion of the Work and all of such warranties shall be in form and substance as required by the Contract Documents. Contractor shall take no action or fail to act in any way which results in the termination or expiration of such third party warranties or which otherwise results in prejudice to the rights of City under such warranties. Contractor agrees to provide all notices required for the effectiveness of such warranties and shall include provisions in the contracts with the providers and manufacturers of such systems and equipment whereby the City shall have a direct right, but not a duty, of enforcement of such warranty obligations. 1.5.7.5 In the event of failure of materials, products, or workmanship, either during construction or the warranty period(which shall be one (1) year from the Date of Final Completion, except where a longer period is specified), the Contractor shall take appropriate measures to assure correction or replacement of the defective items, whether notified by the City or Architect. 1.5.7.6 Approximately eleven (11) months after Substantial Completion, the Contractor shall accompany the City and Architect on a complete inspection of the Project and be responsible for correcting any observed or reported deficiencies within thirty(30) calendar days. 1.5.8 Permits, Fees and Notices. 1.5.8.1 Unless otherwise provided in the Contract Documents, the Contractor shall establish an Allowance in the GMP for the payment for gas, electric utility connections to the project. Owner shall pay the Contractor the direct costs of these connection fees as determined by the Utility's Terms and Conditions statement. 1.5.8.2 Water and Sewer utilities will be established and service provided at no-charge to the contractor. However the contractor may provide the site with a temporary "hydrant meter"obtainable from the Public Works department for the refundable deposit of $1,425.00 plus a non-refundable$75.00 setting fee. 1.5.8.3 Upon acceptance of the project as Substantially Complete the Owner and Contractor shall arrange for the transfer of all utilities to the Owner's account. To avoid any interruption of critical utility services,Contractor shall notify Owner 60 days prior to anticipated transfer date. Owner shall immediately make arrangements to establish accounts as necessary to transfer billing within a seven day window of the scheduled date. Should transfer of utility billing be delayed through no fault of Contractor,Owner shall pay Contractor a daily utility rate equal to the charges accrued between planned transfer date and date of actual transfer. 1.5.8.4 The Contractor shall include and pay for any inspections necessary for proper execution and completion of the Work which are customarily secured after execution of the Contract and which are legally required when bids are received or negotiations concluded. All permit fees for the project shall be the responsibility of the Owner. The City will not charge inspection fees for inspection services provided by its internal forces. 1.5.8.5 The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations and lawful orders and all other requirements of public authorities applicable to performance of the Work. The Contractor shall procure and obtain all bonds required of the City or the Contractor by the Contract Documents. In connection 12 with such bonds, the Contractor shall prepare all applications, supply all necessary back-up material, and furnish the surety with any required information. The Contractor shall also obtain and pay all charges for all approvals for street closing and other similar matters as may be necessary or appropriate from time to time for the performance of the Work. 1.5.8.6 It is not the Contractor's responsibility to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, building codes, and rules and regulations. However, if the Contractor observes that portions of the Contract Documents are contrary therewith, the Contractor shall promptly notify the Architect and City in writing, and necessary changes shall be accomplished by appropriate Modification. 1.5.8.7 If the Contractor performs Work which it knows to be contrary to applicable laws, statutes, ordinances, building codes, and rules and regulations and fails to provide such notice to the Architect and City, the Contractor shall be liable for any cost incurred by the City due to the failure to provide notice and shall promptly remediate any and all work identified to be in violation. 1.5.8.8 The Contractor shall be responsible for timely notification to and coordination with all utility companies regarding the provision of or revising of services to the Project. The Contractor shall inform the Architect at once when the City's participation is required. Connections for temporary and permanent utilities required for the Work are the responsibility of the Contractor. Payment for temporary and/or permanent utility services through Substantial Completion of the Work shall be the responsibility of the Contractor. 1.5.9 Allowances. 1.5.9.1 Material and Equipment Allowances: The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents or identified in the development of the GMP. These stated allowances represent the cost estimate of the materials and equipment delivered and unloaded at the site. The Contractor's installation labor, overhead, profit, and other expenses contemplated for the allowance material and equipment shall be included in allowance only where called for in the Contract Documents. The Contractor shall purchase the allowance materials and equipment as directed by the Architect on the basis of the lowest responsive bids of at least three (3) competitive bids. If the actual cost of the material and equipment delivered and unloaded at the site is more or less than the individual allowance estimate, upon City approval the Contract Sum will be adjusted accordingly by Change Order. The amount of the Change Order shall reflect (1) the difference between actual costs and the allowances under Paragraph 1.5.9.1 and (2) changes in Contractor's costs, subject to the limitations set forth at Paragraph 1.9.2.1 (c). 1.5.9.2 Materials and equipment under an allowance shall be selected with reasonable promptness by the City to avoid delays in the Work (provided that if a decision is needed by a certain date to avoid delay, Contractor shall notify Architect in writing sufficiently in advance of the needed date to allow reasonable time for selections). 13 1.5.9.3 Utility Connection Allowances: The Contractor shall include in the Contract Sum Utility Connection allowances stated in the Contract Documents or identified in the development of the GMP. These stated allowances represent the cost estimate of the Terms and Conditions of the Utility to perform the installation of materials and equipment of the site to provide the project with the subject utility. The Contractor's labor, overhead, profit, if any, contemplated for the Utility allowance shall be included in allowance only where called for in the Contract Documents. If the actual cost of the utility connection fees is more or less than the individual allowance estimate, upon City approval the Contract Sum will be adjusted accordingly by Change Order. 1.5.10 Superintendent. 1.5.10.1 The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work. The superintendent shall represent the Contractor, and communications given to the superintendent shall be as binding as if given to the Contractor. Important communications shall be confirmed in writing.Other communications shall be similarly confirmed on written request in each case. Notwithstanding the foregoing, Contractor shall keep on the job the superintendent approved by City who shall not be transferred from the Project without City's consent (which shall not be unreasonably withheld). However, such obligation to furnish the superintendent shall not be construed (1) to preclude the promotion within Contractor's organization of any person assigned to the Project or (2) to give rise to any liability of Contractor if any person assigned to the Project leaves Contractor's employ. If City reasonably determines that any employee of Contractor or of its Subcontractors is careless or not qualified to perform the Work assigned to him, and City and Contractor cannot, after a diligent and good faith attempt, agree what action should be taken with respect to the removal or reassignment of such employees, the Contractor shall promptly remove such employee from the Project and replace such employee. At all times while procurement activities are being performed in Contractor's office, Contractor shall appoint an individual(approved by City, acting reasonably) authorized to act on behalf of Contractor and with whom City may consult at all reasonable times, and who shall be authorized to receive the instructions, requests and decisions of City. All of Contractor's and Subcontractor's personnel shall comply with all applicable health, safety, and loss prevention rules of applicable authorities. Contractor shall, at its own expense,remove from the Project any person who fails to comply with such rules and instructions in any material respect. 1.5.11 Contractor's Construction Schedules. 1.5.11.1 The Contractor shall, promptly after executing the Contract, develop a construction schedule reasonably defining a plan for completing the Work within the required time. The format and detail of the schedule shall be in keeping with the size and complexity of the Project, and the schedule and all subsequent updates shall be subject to the approval of the City and Architect. The schedule and any updates shall not exceed. time limits current under the Contract Documents including granted time extensions, and shall be revised at appropriate intervals as reasonably required by the City and Architect, 14 shall be related to the entire Project (if more than one Contract is involved in the Project), and shall provide for expeditious and practicable execution of the Work. All updated schedules shall address the subject of how the Contractor intends to overcome any delays previously encountered. The Contractor shall submit to the Architect with each monthly Application for Payment, a copy of the updated construction schedule as a prerequisite for approval of Applications for Payment. 1.5.11.2 The Contractor shall prepare and keep current, for the Architect's approval, a schedule of submittals which is coordinated with the Contractor's construction schedule and allows the Architect reasonable time to review submittals. 1.5.11.3 The Contractor shall perform the Work in general accordance with the most recent schedules submitted to the City and Architect. 1.5.11.4 The process of approving Contractor's schedules and updates to Contractor's schedules shall not constitute a warranty by the City that any non-Contractor milestones or activities will occur as set out in the Contractor's schedules. Approval of a Contractor's schedule does not constitute a commitment by the City to furnish any Owner- furnished information or material any earlier than City would otherwise be obligated to furnish that information or material under the Contract Documents. Failure of the Work to proceed in the sequence scheduled by Contractor shall not alone serve as the basis for a Claim for additional compensation or time. In the event there is interference with the Work which is beyond its control, Contractor shall attempt to reschedule the Work in a manner that will hold the additional time and costs to a minimum. The construction schedules shall be in a detailed format satisfactory to the City and the Architect and shall also: (1) provide a graphic representation of all activities and events that will occur during performance of Work; (2) identify each phase of construction and occupancy; and (3) set forth dates that are critical in ensuring the timely and orderly completion of the Work in accordance with the requirements of the Contract Documents (hereinafter referred to as Milestone Dates). If not accepted, the construction schedules shall be promptly revised by the Contractor in accordance with the recommendations of the City and Architect and re-submitted for acceptance. The Contractor shall monitor the progress of the Work for conformance with the requirements of the construction schedules and shall promptly advise the City of any delays or potential delays. The accepted construction schedules shall be updated to reflect actual conditions as set forth in Paragraph 1.5.11.1, if requested, by either the City or Architect. In the event any schedule indicates any delays, the Contractor shall propose an affirmative plan to correct the delay. In no event shall any schedule constitute an adjustment in the Contract Time, any Milestone Date or the Contract Sum unless any such adjustment is agreed to by the City and authorized pursuant to Change Order. 1.5.12 Documents and Samples at the Site. 1.5.12.1 The Contractor shall maintain at the site for the City one record copy of the Permit Drawings, Specifications, Addenda, Change Orders, As Built Mark-ups and other Modifications, in good order and marked currently to record field changes and selections made during construction, and one record copy of approved Shop Drawings, Product Data, Samples and similar required submittals. These shall be available to the Architect and shall be delivered to the Architect for submittal to the City upon 15 completion of the Work. 1.5.13 Shop Drawings,Product Data and Samples. 1.5.13.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub- subcontractor,manufacturer, supplier or distributor to illustrate some portion of the Work. 1.5.13.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. 1.5.13.3 Samples are physical examples which illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. 1.5.13.4 Shop Drawings,Product Data, Samples and similar submittals are not Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required by the Contract Documents the way by which the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents. Review by the Architect is subject to the limitations of Paragraph 1.6.2.7. Informational submittals upon which the Architect is not expected to take responsive action may be so identified in the Contract Documents. Submittals which are not required by the Contract Documents may be returned by the Architect without action. 1.5.13.5 The Contractor shall review for compliance with the Contract Documents, approve and submit to the Architect Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the City or of separate contractors. Submittals which are not marked as reviewed for compliance with the Contract Documents and approved by the Contractor may be returned by the Architect without action. 1.5.13.6 By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor represents that the Contractor has determined and verified materials, field measurements and field construction criteria related thereto, or will do so, and has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents. If, in the opinion of the Architect, the shop drawings indicate a lack of study and the review by the Contractor is incomplete, or indicate an inadequate understanding of the Work covered by the shop drawings,prior to submittal to the Architect,the shop drawings will be returned, unchecked, to the Contractor for correction of any/all of these deficiencies for subsequent resubmittal. 1.5.13.7 The Contractor shall perform no portion of the Work for which the Contract Documents require submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the respective submittal has been approved by the Architect. 16 1.5.13.8 The Work shall be in accordance with approved submittals except that the Contractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents by the Architect's approval of Shop Drawings, Product Data, Samples or similar submittals unless the Contractor has specifically informed the Architect in writing of such deviation at the time of submittal and (1) the Architect has given written approval to the specific deviation as a minor change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing the deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings,Product Data, Samples or similar submittals by the Architect's approval thereof. 1.5.13.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data, Samples or similar submittals,to revisions other than those requested by the Architect on previous submittals. In the absence of such written notice the Architect's approval of a resubmission shall not apply to such revisions. 1.5.13.10 The Contractor 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 Contractor needs to provide such services in order to carry out the Contractor's responsibilities for construction means, methods, techniques, sequences and procedures. The Contractor shall not be required to provide professional services in violation of applicable law. If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of the Contractor by the Contract Documents, the City and the Architect will specify all performance and design criteria that such services must satisfy. The Contractor shall cause such services or certifications to be provided by a properly licensed design professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professional's written approval when submitted to the Architect. The City and the Architect shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals, provided the City and Architect have specified to the Contractor all performance and design criteria that such services must satisfy. Pursuant to this Paragraph 1.5.13.10, the Architect will review, approve or take other appropriate action on submittals only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Contractor shall not be responsible for the adequacy of the performance or design criteria required by the Contract Documents. 1.5.13.11 Adequate copies of Shop Drawings for architectural, structural, mechanical and electrical work shall be submitted to the Architect for review in the order of scheduled and upcoming work. 1.5.13.12 The Contractor shall submit complete Drawings, Data and Samples to the Architect at least thirty (30) days prior to the date the Contractor needs the reviewed submittals returned. The Contractor shall be prepared to submit color samples on any key items within sixty (60) days of the execution of the Contract. Once samples of all key items are received,the Architect will finalize color selections. 17 1.5.13.13 The Contractor shall submit the number of copies of Product Data and Samples which the Contractor and its Subcontractor(s) need for their use. Where Shop Drawings are involved, the Contractor shall submit one (1) high quality reproducible transparency and one (1) opaque print of the Shop Drawings for the Architect. The reproducible transparency will be marked by the Architect and/or its consultants. After final review and correction of the submittal, Contractor shall send one (1) corrected set to the Architect and one (1) to each of the Architect's consultants involved with the particular section of Work. The Contractor shall provide composite BIM Model within three (3) months of the issuance of the GMP showing how all piping, ductwork, lights, conduit, equipment, etc. will fit into the ceiling space allotted, including clearances required by the manufacturer, by code, or in keeping with good construction practice. Space for all trade elements must be considered on the same model. BIM shall reflect components shown in a 1/4 inch scale. 1.5.14 Use of Site. 1.5.14.1 The Contractor shall confine operations at the site to areas permitted by law, ordinances, permits and the Contract Documents and shall not unreasonably encumber the site with materials or equipment. 1.5.14.2 The Contractor's access to the site, parking, field office location,material and equipment storage,and confinement of said areas shall be coordinated with, and approved by the City prior to the Contractor's mobilization on the site. Once agreed upon,the Contractor shall not adjust or increase any of the above areas without prior consent by the Owner. 1.5.15 Cutting and Patching. 1.5.15.1 The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. 1.5.15.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed construction of the City or separate contractors by cutting, patching or otherwise altering such construction, or by excavation. The Contractor shall not cut or otherwise alter such construction by the City or a separate contractor except with written consent of the City and of such separate contractor; such consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the City or a separate contractor the Contractor's consent to cutting or otherwise altering the Work. Any such alteration involving cutting or removal of previously installed work shall be approved in writing by the Contractor and the Architect prior to initiation of the alteration. 1.5.16 Cleaning Up. 1.5.16.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. At completion of the Work, the Contractor shall remove from and about the 18 Project waste materials, rubbish, the Contractor's tools, construction equipment, machinery and surplus materials. The Contractor shall be responsible for protection of the Work and shall repair or replace damaged work at Substantial Completion of the Work. The Contractor shall remove all temporary protections at the completion of the Work. 1.5.16.2 If the Contractor fails to clean up as provided in the Contract Documents, the City may do so and the cost thereof shall be charged to the Contractor. 1.5.16.3 Prior to the Architect's inspection for Substantial Completion, the Contractor shall: clean exterior surfaces exposed to view; remove temporary labels, stains, and foreign substances; polish transparent and glossy surfaces; clean equipment and fixtures to a sanitary condition; clean roofs; clean the Project site; sweep paved areas and rake clean other surfaces; and remove trash and surplus materials from the Project site. 1.5.17 Access to Work. 1.5.17.1 The Contractor shall provide the City, its contractors, vendors or employees and Architect access to the Work in preparation and progress wherever located. Contractor may impose such safety"rules and regulations" on these entities as are imposed on its own sub-contractors, vendor and employees but shall not require undue or burdensome requirements that Contractor's own sub-contractors,vendors or employees are not also subject to. 1.5.18 Royalties, Patents and Copyrights. 1.5.18.1 The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for infringement of copyrights and patent rights and shall hold the City and Architect harmless from loss on account thereof, but shall not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is required by the Contract Documents or where the copyright violations are contained in Drawings, Specifications or other documents prepared by the City or Architect. However, if the Contractor has reason to believe that the required design, process or product is an infringement of a copyright or a patent, the Contractor shall be responsible for such loss unless such information is promptly furnished to the Architect. 1.5.19 INDEMNIFICATION AND RELEASE. 1.5.19.1 CONTRACTOR SHALL PROTECT, DEFEND, HOLD HARMLESS AND INDEMNIFY THE CITY FROM ANY AND ALL CLAIMS, DEMANDS, EXPENSES, LIABILITY OR CAUSES OF ACTION FOR INJURY TO ANY PERSON,INCLUDING DEATH,AND FOR DAMAGE TO ANY PROPERTY, TANGIBLE OR INTANGIBLE, OR FOR ANY BREACH OF CONTRACT ARISING OUT OF OR IN ANY MANNER CONNECTED WITH THE WORK DONE BY ANY PERSON UNDER THIS AGREEMENT. IT IS THE INTENT OF THE PARTIES THAT THIS PROVISION SHALL EXTEND TO, AND INCLUDE, ANY AND ALL CLAIMS, CAUSES OF ACTION OR LIABILITY CAUSED BY THE CONCURRENT, JOINT AND/OR CONTRIBUTORY NEGLIGENCE OF THE CITY, AN ALLEGED BREACH OF AN EXPRESS OR IMPLIED 19 WARRANTY BY THE CITY OR WHICH ARISES OUT OF ANY THEORY OF STRICT OR PRODUCTS LIABILITY. 1.5.19.2 The indemnifications contained in Paragraph 1.5.19.1. shall include but not be limited to the following specific instances: (a) The City is damaged due to the act, omission, mistake, fault or default of the Contractor. (b) In the event of any claims for payment for goods or services brought by any material suppliers, mechanics, laborers, or other subcontractors. (c) In the event of any and all injuries to or claims of adjacent property owners caused by the Contractor,its agents,employees, and representatives. (d) In the event of any damage to the floor,walls,etc.,caused by the Contractor's personnel or equipment during installation. (e) The removal of all debris related to the Work. (f) The acts and omissions of the subcontractors. (g) The Contractor's failure to comply with applicable federal,state,or local regulations,that touch upon or concern the maintenance of a safe and protected working environment and the safe use and operation of machinery and equipment in that working environment, no matter where fault or responsibility lies. 1.5.19.3 The indemnification obligations of the Contractor under this Paragraph shall not extend to include the liability of any professional engineer, the architect, their consultants, and agents or employees of any of them arising out of(1) the preparation or approval of maps, drawings, opinions, reports, surveys, Change orders, designs or specifications, or (2) the giving of or the failure to give directions or instructions by the professional engineer, the architect, their consultants, and agents and employees of any of them,provided such giving or failure to give is the primary cause of the injury or damage. 1.5.19.4 It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the indemnification obligation under Paragraph 1.5.19.1., such legal limitations are made a part of the indemnification obligation and shall operate to amend the indemnification obligation to the minimum extent necessary to bring the provision into conformity with the requirements of such limitations, and as so modified, the indemnification obligation shall continue in full force and effect. 1.5.19.5 Contractor's indemnification obligations hereunder shall survive termination, completion, abandonment and final payment. 20 1.5.19.6 The Contractor assumes full responsibility for the Work to be performed hereunder, and hereby releases, relinquishes, and discharges the City, its officers, agents, and employees from all claims, demands, and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of any person (whether employees of either party or other third parties) and any loss of or damage to any property(whether property of either of the parties hereto,their employees, or of third parties)that is caused by or alleged to be caused by, arising out of, or in connection with the Contractor's Work to be performed hereunder. This release shall apply regardless of whether said claims, demands, and causes of action are covered in whole or in part by insurance, and in the event of injury, death, property damage, or loss suffered by the Contractor,any Subcontractor,or any person or organization directly or indirectly employed by any of them to perfoirn or furnish work on the Project, this release shall apply regardless of whether such injury, death, loss, or damage was caused in whole or in part by the negligence of the City. 1.5.20 Reproducible Record Drawings. 1.5.20.1 Required as part of Final Completion of the Project, the Contractor shall submit one (1) complete set of drawings with all changes made during construction, including concealed mechanical, electrical, and plumbing items 1.6 Administration of the Contract. 1.6.1 Architect. 1.6.1.1 The Architect is the person lawfully licensed to practice architecture or an 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 or such successor Architect as City may appoint by written notice to Contractor from time to time. 1.6.1.2 City shall notify Contractor when the duties, responsibilities or limitations of authority of the Architect have been modified. 1.6.1.3 If the employment of the Architect is terminated,the City may elect to appoint a replacement Architect, or at its option, elect to complete the Project using another consultant or representative to perform the balance of the Architect's functions on the Work. 1.6.1.4 Except as herein expressly provided, the Contractor shall not be relieved of its obligation to perform the Work in strict accordance with the Contract Documents by the activities or duties of the Architect. 1.6.2 Architect's Administration of the Contract. 1.6.2.1 Certain portions of the administration of the Contract will be performed by the Architect. The Architect shall not have the authority to act on behalf of the City unless such authority is expressly granted in the Contract Documents, nor shall. such authority be implied from any act or representation of the Architect. The City is free to elect to have some of the administration duties set out for the Architect to perform under 21 the Contract Documents performed by a construction manager or by employees of the City. 1.6.2.2 The Architect, as a representative of the City, 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 City informed about the progress and quality of the portion of the Work completed, (2) to endeavor to guard the City 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. However, the Architect will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The Architect 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, except as provided in Paragraph 1.5.5.1. In no event shall City or any other party have control over, be in charge of, or be responsible for construction means, methods, techniques, sequences, procedures, or for safety precautions and programs in connection with the Work, since these are solely Contractor's responsibilities. City will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. City will not have control over, be in charge of, and will not be responsible for the acts or omissions of Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the Work. 1.6.2.3 The Architect 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. 1.6.2.4 Communications Facilitating Contract Administration. Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized,the City and Contractor shall endeavor to communicate with each other through the Architect about matters arising out of or relating to the Contract. Communications by and with the Architect'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 City. 1.6.2.5 Based on the Architect's evaluations of the Contractor's Applications for Payment, the Architect will review and certify the amounts due the Contractor and will issue Certificates for Payment in such amounts. 1.6.2.6 The Architect will have authority to reject Work that does not conform to the Contract Documents. Whenever the Architect considers it necessary or advisable for implementation of the intent of the Contract Documents, the Architect will have authority to require additional inspection or testing of the Work in accordance with Paragraphs 1.15.5.2. and 1.15.5.3., whether or not such Work is fabricated, installed or completed. However, neither this authority of the Architect nor a decision made reasonably and in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Contractor, Subcontractors, material and equipment 22 suppliers, their agents or employees, or other persons or entities performing portions of the Work. 1.6.2.7 The Architect will review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data and Samples,but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect's action will be taken with such reasonable promptness as to cause no delay in the Work or in the activities of the City, Contractor or separate contractors, while allowing sufficient time in the Architect's professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Architect's review of the Contractor's submittals shall not relieve the Contractor of its obligations. The Architect's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Architect, of any construction means, methods, techniques, sequences or procedures. The Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a component. 1.6.2.8 The Architect will prepare Change Orders and Construction Change Directives, and may authorize minor changes in the Work as provided in Paragraph 1.9.4. 1.6.2.9 The Architect will conduct inspections to determine the date or dates of Substantial Completion and the date of Final Completion, will receive and forward to the City, for the City's review and records, written warranties and related documents required by the Contract and assembled by the Contractor, and will issue a final Certificate for Payment upon compliance with the requirements of the Contract Documents. 1.6.2.10 If the City and Architect agree, the Architect will provide one or more project representatives to assist in carrying out the Architect's responsibilities at the site. The duties, responsibilities and limitations of authority of such project representatives shall be as set forth in an exhibit to be incorporated in the Contract Documents. 1.6.2.11 The Architect will interpret and decide matters concerning performance under, and requirements of, the Contract Documents on written request of either the City or Contractor. The Architect'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 shall be furnished in compliance with this Paragraph 1.6.2.11,then delay shall not be recognized on account of failure by the Architect to furnish such interpretations until thirty(30) days after written request is made for them. 1.6.2.12 Interpretations and decisions of the Architect 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. 1.6.2.13 The Architect's decisions on matters relating to all Work will be final if consistent with the intent expressed in the Contract Documents. 23 1.6.3 Claims and Disputes. 1.6.3.1 Definition. A Claim is any demand or assertion by the Contractor that it should be paid more money than the Contract Sum, as adjusted under the Change Order provisions herein, by the City because of action or inaction on the part of City, Architect, or any party for whom City is responsible, or any party with whom City has separately contracted for other portions of the Project, including but not limited to any demand or assertion that Contractor's performance has been delayed, interrupted or interfered with, that Contractor's performance has been accelerated, constructively accelerated, or suspended, that Contractor's performance has been wrongfully terminated, that the Contract Documents have been misinterpreted, that here has been a failure of payment,that Contractor has encountered concealed or unknown conditions,that Contractor has encountered hazardous materials, that there are problems with the Contract Documents, or the timing of Architectural approvals or decisions, that action of the City have been intentionally wrongful or deceptive in any way to the Work, that the amount of time or money granted in a Construction Change Directive is inadequate, that an item treated as a minor change in the Work should have been treated as a Change Order,that a time extension granted was inadequate,or that Contractor is entitled to any other relief, on any legal theory, related to the Work and the Contract. Nothing contained in this subparagraph shall be construed as creating any Contractor right to make a claim, where no such right otherwise exists. 1.6.3.2 Notice Requirement: Within ten (10) calendar days of the first occurrence of an event that Contractor has any reason to believe might result in a Claim, or within ten (10) calendar days of Contractor's discovery of the first occurrence of the event that Contractor has any reason to believe might result in a Claim, if the first occurrence of the event was willfully hidden from the Contractor, the Contractor shall file a written document clearly captioned "Notice of Claim" with City and Architect. The notice shall clearly set out the specific matter of complaint, and the impact of damages which may occur or have occurred as a result thereof, to the extent the impact or damages can be assessed at the time of the notice. If the impact or damages cannot be assessed as of the date of the notice, the notice shall be amended at the earliest date that is reasonably possible. 1.6.3.2.1 Any Claim or portion of a Claim that has not been made the specific subject of a notice strictly in accordance with the requirements of this Paragraph shall be waived. It is imperative that City have timely, specific notice of any subject, the impact of which City may be in a position to mitigate. 1.6.3.2.2 No course of conduct or dealings between the parties, nor implied acceptance of alteration or additions to the Work or changes to the Contract schedule, shall be the basis for any claim for an increase in the Contract Sum or change in the Contract Time. 1.6.3.3 Claims Handling During Construction: After receipt of a Notice of Claim, the City may elect to refer the matter to the Architect or another party for 24 review. Contractor will attend meetings called to review and discuss the Claim and mitigation of the problem, and shall furnish any reasonable factual backup of the Claim requested. The City may also elect to defer consideration of the Claim until the Work is completed, in which case the same review options shall be available to the City at the completion of the Work. At any stage, the City is entitled to refer a Claim to mediation under the Construction Industry Mediation Rules of the American Arbitration Association, and if this referral is made, Contractor will take part in the mediation process. The filing, mediation or rejection of a Claim does not entitle Contractor to stop performance of the Work. The Contractor shall proceed diligently with performance of the Work during the pendency of any claim, except termination under City's direction to stop the Work. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. The parties shall share the Mediator's fee and any filing fees equally, and the Mediation shall be held in Brazoria County, Texas. 1.6.3.4 Claims Handling Following Construction: The acceptance of final payment shall constitute a waiver of Claims by the Contractor which have not previously been identified in a timely notice of Claim and specifically reserved in the final Application for Payment. 1.6.3.5 Claims for Concealed or Unknown Conditions. Only if conditions are encountered at the site which are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or(2)unknown physical conditions of an unusual nature,which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then Contractor shall be entitled to make a Claim if it can satisfy all of the other requirements of Paragraph 1.6. 1.6.3.6 Claims for Additional Cost. If the Contractor wishes to make Claim for an increase in the Contract Sum, written notice and prior approval of City must occur before Contractor may execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property arising under Paragraph 1.12.4. 1.6.3.7 Calculating Claim Amount: In calculating the amount of any Claim, the following standards will apply: (a) No indirect or consequential damages will be allowed. (b) All damages must be directly and specifically shown to be caused by a proven wrong. No recovery shall be based on a comparison of planned expenditures to total actual expenditures, or on estimated losses of labor efficiency, or on a comparison of planned man loading to actual man loading, or any other analysis that is used to show damages indirectly. (c) Damages are limited to extra costs specifically shown to have been directly caused by a proven wrong. (d) The maximum daily limit on any recovery for delay shall be the amount established by the Contractor for job overhead costs, defined in the 25 Schedule of Values, divided by the total number of calendar days of Contract Time called for in the original Contract. Absent an overhead amount in the Schedule of Values, the amount estimated by the Contractor for job overhead costs shall be used. (e) The maximum amount of all Claims is expressly agreed to be limited to five percent(5%)of the Contract Sum. 1.7 Subcontractors. 1.7.1 Definitions. 1.7.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perfonn a portion of the Work at the site. The term "Subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor. 1.7.1.2 A Sub-subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the Work at the site. The term "Sub-subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Sub-subcontractor or an authorized representative of the Sub- subcontractor. 1.7.2 Award of Subcontracts and Other Contracts for Portions of the Work. 1.7.2.1 Unless otherwise stated in the Contract Documents or the bidding requirements, the Contractor, as soon as practicable after award of the Contract, shall furnish in writing to the City, through the Architect, the names of persons or entities (including those who are to furnish labor, materials or equipment fabricated to a special design) proposed for each principal portion of the Work. The Architect will promptly reply to the Contractor in writing stating whether or not the City or the Architect, after due investigation, has reasonable objection to any such proposed person or entity. Failure of the City or Architect to reply promptly shall constitute notice of no reasonable objection. 1.7.2.2 The Contractor shall not contract with a proposed person or entity to whom the City or Architect has made reasonable and timely objection. The Contractor shall not be required to contract with anyone to whom the Contractor has made reasonable objection. 1.7.2.3 If the City or Architect has reasonable objection to a person or entity proposed by the Contractor, the Contractor shall propose another to whom the City or Architect has no reasonable objection. If the proposed but rejected Subcontractor was reasonably capable of performing the Work, the Contract Sum and Contract Time shall be increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order shall be issued before commencement of the substitute 26 Subcontractor's Work. However, no increase in the Contract Sum or Contract Time shall be allowed for such change unless the Contractor has acted promptly and responsively in submitting names as required. 1.7.2.4 The Contractor shall not change a Subcontractor, person or entity previously selected if the City or Architect makes reasonable objection to such substitute. 1.7.2.5 The Contractor shall submit the list of proposed Subcontractors on a form provided by the Architect. The Contractor may obtain blank copies from the Architect. 1.7.2.6 The Contractor and Subcontractors are required to visit the site and completely familiarize themselves with the existing conditions prior to the submission of Proposal(s). No additional increase in the Contract amount will be provided when existing or known conditions require a certain amount of work to comply with the intent of the Contract Documents. 1.7.3 Sub-contractual Relations. 1.7.3.1 By appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities, including the responsibility for safety of the Subcontractor's Work, which the Contractor, by these Documents, assumes toward the City and Architect. Each subcontract agreement shall preserve and protect the rights of the City and Architect under the Contract Documents with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights. Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with Sub-subcontractors. The Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor will be bound, and, upon written request of the Subcontractor, identify to the Subcontractor terms and conditions of the proposed subcontract agreement which may be at variance with the Contract Documents. Subcontractors will similarly make copies of applicable portions of such documents available to their respective proposed Sub-subcontractors. 1.7.4 Contingent Assinment Of Subcontracts. 1.7.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the City provided that: (a) assignment is effective only after termination of the Contract by the City for cause pursuant to Paragraph 1.16.2. and only for those subcontract agreements which the City accepts by notifying the Subcontractor and Contractor in writing; and (b) assignment is subject to the prior rights of the surety, if any, obligated under bond relating to the Contract. 27 1.7.4.2 City shall only be responsible for compensating Subcontractor for Work done or materials furnished after the date City gives written notice of its acceptance of the subcontract agreement. 1.7.4.3 Each Subcontract and assignment shall provide that the City shall only be responsible to the Subcontractor for those services and materials furnished by the Subcontractor subsequent to the City's exercise of any rights under this contingent assignment. 1.7.5 Responsibility. 1.7.5.1 Contractor shall be fully responsible for the performance of its Subcontractor, including those selected or approved by the City. 1.8 Construction by Owner or by Separate Contractors. 1.8.1 Owner's Right to Perform Construction and to Award Separate Contracts. 1.8.1.1 The City reserves the right to perform other construction work, maintenance and repair work near or adjacent to the site during the time period of the Work. Owner may perform other Work with separate contractors. City shall have access to the site at all times. Any contractor performing work on the site whether for the project or for other projects that require access through this site shall maintain the same insurance and indemnity limits as those of the Contractor. 1.8.1.2 When separate contracts are awarded for different portions of the Project or other construction or operations on the site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate Owner-Contractor Agreement. 1.8.2 Mutual Responsibility. 1.8.2.1 The Contractor shall afford the City and separate contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities, and shall connect and coordinate the Contractor's construction and operations with theirs as required by the Contract Documents. 1.8.2.2 If part of the Contractor's Work depends for proper execution or results upon construction or operations by the City or a separate contractor,the Contractor shall, prior to proceeding with that portion of the Work, promptly report to the Architect discrepancies or defects in such other construction that would render it unsuitable for such proper execution and results. Failure of the Contractor so to report shall constitute an acknowledgment that the City's or separate contractor's completed or partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not then reasonably discoverable. 1.8.2.3 The City shall be reimbursed by the Contractor for costs incurred by the City which are payable to a separate contractor because of delays, 28 improperly timed activities or defective construction of the Contractor. 1.8.2.4 The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially completed construction or to property of the City or separate contractors as provided in Paragraph 1.12.2.5. 1.8.2.5 The City and each separate contractor shall have the same responsibilities for cutting and patching as are described for the Contractor in Paragraph 1.5.15. 1.8.3 Owner's Right to Clean Up. 1.8.3.1 If a dispute arises among the Contractor, separate contractors and the City as to the responsibility under their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish, the City may clean up and the Architect will allocate the cost among those responsible. 1.9 Changes in the Work. 1.9.1 General. Changes in the Work may be accomplished after execution of the Contract, and without invalidating the Contract, by Change Order, Construction Change Directive or order for a minor change in the Work. The Contract Sum and/or Contract Time may be increased for changes in the Work if the provisions of this Paragraph have been met. 1.9.1.1.1 No change in the Contract. Sum and/or Contract Time will be allowed for a change in the Work unless prior to performing the changed Work, the Contractor has provided the City in writing a proposal for any change in price and/or change in Contract Time caused by the change in Work, and a Change Order is subsequently executed. A field directive or field order shall not be recognized as having any impact upon the Contract Sum or the Contract Time, and Contractor shall have no Claim therefore, unless it shall, prior to complying with the directive and in any event within fourteen (14) calendar days of receiving the directive, submit a change proposal to the City, and a Change Order is subsequently executed, or Contractor satisfies the requirements of Paragraph 1.6.3. Contractor's proposal shall be subject to City's acceptance and remain firm and irrevocable for a period of forty-five (45) calendar days after receipt by City. Thereafter, Contractor reserves the right to resubmit such change proposal upon different pricing and time of performance terms. 1.9.1.2 A Change Order shall be based upon agreement among the City, Contractor and Architect; a Construction Change Directive requires agreement by the City and Architect and may or may not be agreed to by the Contractor; an order for a minor change in the Work may be issued by the Architect alone. 1.9.1.3 Changes in the Work shall be performed under applicable provisions of the Contract Documents, and the Contractor shall proceed promptly, unless 29 otherwise provided in the Change Order, Construction Change Directive or order for a minor change in the Work.Except as permitted in Paragraph 1.9.3., a change in the Contract Sum or the Contract Time shall be accomplished only by Change Order. 1.9.1.4 The Contractor, upon receipt of written notification by the Architect of a proposed item of change in the Work, shall prepare as soon as possible a Change Proposal in such form or forms as directed by the Architect. (a) Each separate Change Proposal shall be numbered consecutively and shall include material costs, labor costs, fees, overhead and profit. The Change Proposal shall specify all costs related to the proposed change in the Work, including any disruption or impact on performance: (b) The Subcontractor's itemized accounting shall be included with the Change Proposal. (c) If a Change Proposal is returned to the Contractor for additional information or if the scope of the proposed change in the Work is modified by additions, deletions or other revisions, the Contractor shall revise the Change Proposal accordingly and resubmit the revised Change Proposal to the Architect. (d) A revised Change Proposal shall bear the original Change Proposal number suffixed by the letter "R" to designate a revision in the original Change Proposal. If additional revisions to a revised Change Proposal are necessary, each subsequent revision shall be identified by an appropriate numeral suffix immediately following the"R"suffix. (e) Upon written approval of a Change Proposal by the City,the Architect will prepare an appropriate Change authorizing such change in Work. (0 The Contractor shall request extensions of Contract Time due to changes in the Work only at the time of submitting its Change Proposal. Contractor's failure to do so shall represent a waiver of any right to request a time extension. 1.9.2 Change Orders. 1.9.2.1 A Change Order is a written instrument prepared by the Architect and signed by the City, Contractor and Architect, stating their agreement upon all of the following: (a) change in the Work; and the amount of the adjustment, if any, in the Contract Sum; (b) the extent of the adjustment, if any, in the Contract Time. 1.9.2.2 Methods used in determining adjustments to the Contract Sum 30 may include those listed below: (a) mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation; (b) unit prices stated in Contract Documents or subsequently agreed upon; (c) cost shall be determined in a manner agreed upon by the parties and a mutually acceptable fixed fee, or the percentage fee established at Subparagraph 1.9.3.6., or (d) as provided in Subparagraph 1.9.3.6. 1.9.2.3 Agreement on any Change Order shall constitute a final settlement of all Claims by the Contractor directly or indirectly arising out of or relating to the change in Work which is the subject of the Change Order, including, but not limited to, all direct and indirect costs and impact costs associated with such change and any and all adjustments to the Contract Sum and the Contract Time. 1.9.3 Construction Change Directives. 1.9.3.1 A Construction Change Directive is a written order prepared by the Architect and signed by the City and Architect, directing a change in the Work prior to agreement on adjustment, if any, in the Contract Sum or Contract Time, or both. The City may by Construction Change Directive,without invalidating the Contract, order changes in the Work within the general scope of the Contract consisting of additions,deletions or other revisions, the Contract Sum and Contract Time being adjusted accordingly. 1.9.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change Order. 1.9.3.3 The Construction Change Directive shall include a unilateral change in the Contract Sum and/or Contract Time reflecting the City's view of the appropriate change in the Contract Sum and/or Contract Time for the change in Work covered by the Construction Change Directive. Until agreement is reached by the City and Contractor on these issues, the changes in Contract Sum and Contract Time set out in the Construction Change Directive shall be used for Schedule of Values, payment and scheduling purposes. 1.9.3.4 Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the change in the Work involved and advise the Architect of the Contractor's agreement or disagreement with the method, if any, provided in the Construction Change Directive for determining the proposed adjustment in the Contract Sum or Contract Time. 1.9.3.5 A Construction Change Directive signed by the Contractor indicates the agreement of the Contractor therewith, including adjustment in Contract Sum and Contract Time or the method for determining them. Such agreement shall be effective 31 immediately and shall be recorded as a Change Order. 1.9.3.6 In the absence of an agreement between City and Contractor on the proper change to the Contract Sum or Contract Time because of a change in the Work, Contractor may treat the matter as a Claim under Paragraph 1.6.3. In such event,the Contractor shall be entitled to recover only the amount by which the Cost of the Work has been reasonably increased over the Cost of Work without the change in the Work,plus five percent (5%). 1.9.3.7 Pending final determination of the cost of a Construction Change Directive to the City, amounts not in dispute may be included in Applications for Payment. The amount of credit to be allowed by the Contractor to the City for a deletion or change which results in a net decrease in the Contract Sum shall be actual net cost as confirmed by the Architect. When both additions and credits covering related Work or substitutions are involved in a change,the allowance for overhead and profit shall be figured on the basis of net increase,if any, with respect to that change. 1.9.4 Minor Changes in the Work. 1.9.4.1 The Architect will have authority to order minor changes in the Work not involving adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes shall be effected by written order and shall be binding on the City and Contractor. The Contractor shall carry out such written orders promptly. 1.9.5 Changes Funded By Allowances. 1.9.5.1 Allowances balances may be used to fund changes in the Work. The Contractor will not be allowed an overhead and profit mark-up when changes in the Work are funded by one of the Allowances. 1.10 Prosecution and Progress. 1.10.1 TIME AND ORDER OF COMPLETION. It is the meaning and intent of this Contract, unless otherwise herein specifically provided, that the CONTRACTOR shall be allowed to prosecute his Work at such times and seasons, in such order of precedence, and in such manner as shall be most conducive to economy of construction; provided, however, that the order and the time of prosecution shall be such that the Work shall be Substantially Completed as a whole and in part, in accordance with this Contract and the Contract Time; provided, also, that when the OWNER is having other work done, either by contract or by his own forces, the Architect may direct the time and manner of constructing the Work done under this Contract, so that conflict will be avoided and the construction of the various works being done for the OWNER shall be harmonized, and the CONTRACTOR shall fully cooperate and coordinate its Work with OWNER or such other contractors. 1.10.1.1 The CONTRACTOR shall submit, an updated schedule with every pay estimate for review by the Architect, schedules which shall show the order in which the CONTRACTOR proposes to carry on the Work, with dates on which the CONTRACTOR will start the several parts of the work, and estimated 32 dates of completion of the several parts. Such schedules shall show completion of the Work within the Contract Time, and/or shall show such recovery efforts as CONTRACTOR intends to undertake in the event Substantial Completion of the Work is delayed. 1.10.1.2 EXTENSION OF TIME. The CONTRACTOR agrees that he has submitted his Bid Proposal in full recognition of the time required for the completion of this Project, taking into consideration the average climatic range and industrial conditions prevailing in this locality, and has considered the liquidated damage provisions as hereinafter set forth, and that he shall not be entitled to, nor will he request, an extension of time on this Contract, except when Substantial Completion of the Work has been delayed solely by strikes, lockouts, fires, Acts of God, or by any other cause which the Architect shall decide justifies the delay. The CONTRACTOR shall give the Architect prompt notice, in writing and within three (3) days of the start of any such delay, of the cause of any such delay, and its estimated effect on the Work and the schedule for completion of the Work. Upon receipt of a written request for an extension of the Contract Time from the CONTRACTOR, supported by relevant and all requested documentation, the Architect shall submit such written request, together with his written recommendation, to the OWNER for consideration. If the delay is not attributable in whole or in part to any act or omission of CONTRACTOR, its subcontractors or suppliers, and if the OWNER determines that CONTRACTOR is entitled to an extension of time under the terms of the Contract, the. OWNER shall grant an extension of time for Substantial Completion of the Work, sufficient to compensate for the delay, and such extension of time shall be CONTRACTOR's sole and exclusive remedy, except as may be otherwise provided herein. No extensions of Contract Time shall be made for delays occurring prior to the Contractor's mobilization as defined in the City's Specifications. The Contract Time as defined in the Bid Proposal and other sections herein incorporates 40 Rain Days per calendar year or an average of 3.33 days per calendar month. The CONTRACTOR is required to keep record of all weather related delays and to submit the monthly count on each Pay Application. The Owner's Representative shall review and sign off on this record as a part of the Pay Application approval process every month. If, during preparation of the Balancing Change Order, the status of the work progress requires an extension of the Contract Time, Impact Days shall be added to the Completion Date equal to the total number of Weather or Impact Days approved less the original 40 days resident in the original Contract Time. The Addition of Weather or Impact Days will only alter the Contract Time when added by Change Order. If the Work is completed prior to the Completion Date, No Days will be added. The addition of Weather or Impact Days shall be the CONTRACTOR's sole remedy for delays to the completion of the Work and their addition to the Contract Time shall not affect the Contract Price through any "per diem" adjustment to the General Conditions costs, Temporary Facilities costs or any other costs associated with the extension of the Contract Time. 1.10.1.3 HINDRANCES AND DELAYS. In executing the Contract, the CONTRACTOR agrees that in undertaking to complete the Work within the time herein fixed, he has taken into consideration and made allowances for all 33 interference, disruption, hindrances and delays incident to such Work, whether growing out of delays in securing material, workmen or otherwise. No claim shall be made by the CONTRACTOR for damages, loss, costs or expense resulting from interference, disruption, hindrances or delays from any cause during the progress of any portion of the Work embraced in this Contract, except where the Work is stopped or suspended by order of the OWNER's representative and such stoppage or suspension is not attributable to any act or omission of CONTRACTOR. 1.10.1.4 SUSPENSION OF WORK. OWNER may, without cause, order the CONTRACTOR in writing to suspend the Work, in whole or in part, for such period of time as OWNER may request. The Contract Price and/or Contract Time shall be adjusted for any increase in the cost of or the time required for performance of the Work caused by such suspension. No adjustment shall be made to the extent performance was or would have been suspended by a cause for which CONTRACTOR is responsible, or to the extent an adjustment is made or denied under another provision of the Contract Documents. 1.10.1.5 CHANGE OF CONTRACT TIME: The Contract Time may only be changed by a Change Order. Any claim for an adjustment of Contract Time shall be based on written notice delivered by the party making such claim to the other party and to the Architect promptly, but in no event later than ten (10) days after the event-giving rise to the claim. Notice of the extent of the claim, along with supporting data, shall be delivered within thirty (30) days of the occurrence and shall be accompanied by the claimant's written representation that the adjustment claimed is the entire adjustment to which the claimant has reason to believe it is entitled as a result of the occurrence of said event. All claims for adjustment in Contract Time shall be determined by the ARCHITECT in accordance with the requirements of this paragraph. Contractor shall submit, as a minimum,the following data: A. Information showing that the time requested is not included in the existing Contract and in addition to the Contract. B. Information documenting that the number of days requested is accurate for the event. C. Revised, current construction schedule showing that the time requested affects the project's critical path. 1.10.1.6 DELAYS BEYOND OWNER'S AND CONTRACTOR'S CONTROL: Where CONTRACTOR is prevented from completing any part of the Work within the Contract Time due to delays beyond the control of the OWNER and the CONTRACTOR, including, but not limited to, interference by utility owners or other contractors performing other work, Contractor shall be entitled to an extension of the Contract Time in an amount equal to the time lost. CONTRACTOR shall not be entitled to any increase in Contract Price as a result of such delays. IN NO EVENT SHALL OWNER BE LIABLE TO CONTRACTOR FOR DAMAGES ARISING OUT OF OR RESULTING FROM (i) Delays caused by, or within the control of, the CONTRACTOR, or (ii) Delays beyond the control of both parties including, but 34 not limited to, interference by utility owners or other contractors performing other work, fires, floods, epidemics, abnoiiital weather conditions, acts of God, even if such delays are due in part to the negligence, other fault, breach of contract or warranty, violation of the Texas Deceptive Trade Act,, or strict liability without regard to fault of OWNER. An extension of Contract time shall be CONTRACTOR's sole and exclusive remedy for any such delays. Delays attributed to, and within the control of, a Subcontractor or Supplier shall be deemed to be delays within the control of the CONTRACTOR. 1.11 payments and Completion. 1.11.1 Contract Sum. 1.11.1.1 The Contract Sum is stated in, the Agreement and, including authorized adjustments, is the total amount payable by the City to the Contractor for performance of the Work under the Contract Documents. 1.11.2 Schedule of Values. 1.11.2.1 Before the first Application for Payment, the Contractor shall submit to the Architect a Schedule of Values fairly allocating the various portions of the Work, prepared in such form and supported by such data to substantiate its accuracy as reasonably required by the Architect. Once approved by the Architect and updated for changes in the Work, the Schedule of Values shall be used as a basis for reviewing the Contractor's Applications for Payment and is not to be taken as evidence of market or other value. The Schedule of Values shall not overvalue early job activities. The Contractor's Fee shall be shown as a single separate item. The Schedule of Values shall follow the trade divisions of the Specification so far as practicable. In order to facilitate the review of Applications for Payment,the Schedule of Values shall be submitted on forms approved by the Owner, and shall include the following: (a) Contractor's costs for Contractor's Fee, bonds and insurance,mobilization, etc., shall be listed as individual line items. (b) Contractor's costs for various construction items shall be detailed. For example, concrete work shall be subdivided into footings, grade beams, floor slabs, paving, etc. These subdivisions shall appear as individual line items. (c) On major subcontracts, such as mechanical, electrical and plumbing, the Schedule of Values shall indicate line items and amounts in detail (for example: underground,major equipment,fixtures, installation of fixtures, start up, etc.). (d) Costs for subcontract Work shall be listed without any 35 addition of Contractor's costs for overhead,profit or supervision. (e) Where payment for stored materials may be requested prior to installation,material and labor shall be listed as separate line items. (I) Sample pages from an approved Schedule of Values are included following this document. 1.11.3 Applications for Payment. 1.11.3.1 At the time specified in the Agreement, the Contractor shall submit to the Architect an itemized Application for Payment for operations completed in accordance with the Schedule of Values. Such application shall be notarized, if required, and supported by such data substantiating the Contractor's right to payment as the City or Architect may require, such as copies of requisitions from Subcontractors and material suppliers, and reflecting retainage if provided for in the Contract Documents. Unless otherwise agreed, the Contractor shall submit requests for payment through the City's project management software (ProTrak) using the APPLICATION AND CERTIFICATE FOR PAYMENT; showing in detail the amounts requested, etc., as necessary. All blank spaces must be completed and the signatures of the Contractor shall signify his attestation that said Application for Payment is true, accurate and complete. By submitting its Application for Payment, the Contractor certifies that the individual signing the application is authorized to do so. Additionally, if the Contractor prepares its Application for Payment, any supplemental supporting documentation should be provided and uploaded through the ProTrak software. Applications for Payment may not include requests for payment for portions of the Work for which the Contractor does not intend to pay to a Subcontractor or material supplier. 1.11.3.2 Unless otherwise provided in the Contract Documents, payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If approved in advance by the City, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing.Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by the Contractor with procedures satisfactory to the City to establish the City's title to such materials and equipment or otherwise protect the City's interest, and shall include the costs of applicable insurance, storage and transportation to the site for such materials and equipment stored off the site. Applications for Payment shall separate references to any and all materials and/ or equipment that require separate payment for materials stored but not installed as individual line items. These items shall be specifically identified in the Original Schedule of Values as well as where this material or equipment will be incorporated into the Work. 1.11.3.3 Upon payment by the City of the invoiced cost, title to all such materials and equipment shall irrevocably pass to the City. The Contractor warrants that title to all materials and equipment covered by an Application for Payment will 36 pass to City upon the receipt of payment by the Contractor. Such title shall be free and clear of all liens, claims, security interests or encumbrances. No work, materials or equipment covered by an Application for Payment shall be subject to an agreement under which an interest is retained or encumbrance is attached by the seller, the Contractor, or other party. 1.11.3.4 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the City no later than the time of payment. The Contractor further warrants that upon submittal of an Application for Payment all Work for which Certificates for Payment have been previously issued and payments received from the City shall, to the best of the Contractor's knowledge, information and belief, be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided labor,materials and equipment relating to the Work. Each Application for Payment shall be accompanied by a signed and notarized Partial Release of Lien/All Bills Paid affidavit specifically covering the Work performed and any materials and equipment included and billed in the accompanying Application for Payment. 1.11.4 Certificates for Payment. 1.11.4.1 The Application for Payment will be reviewed first by the Architect who will certify to the City that portion, if any, of the Application for Payment it has determined is properly due. In the event that the Architect believes that payment should be withheld, in whole or in part, it will notify the City and Contractor of the basis of this view as provided in Subparagraph 1.11.5.1. 1.11.4.2 The issuance of a Certificate for Payment will constitute a representation by the Architect to the City, based on the Architect's evaluation of the Work and the data comprising the Application for Payment, that the Work has progressed to the point indicated and that, to the best of the Architect's knowledge, information and belief, the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests and inspections, to correction of minor deviations from the Contract Documents prior to completion and to specific qualifications expressed by the Architect. The issuance of a Certificate for Payment will further constitute a representation that the Contractor is entitled to payment in the amount certified. However, the issuance of a Certificate for Payment will not be a representation that the Architect has (1)made exhaustive or continuous on-site inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the City to substantiate the Contractor's right to payment, or (4) made examination to ascertain how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. 1.11.4.3 The issuance of a Certificate of Payment shall constitute a recommendation to the City in respect to the amount to be paid. This recommendation is not binding on the City if City knows of other reasons under the Contract why payment should be withheld. 37 1.11.4.4 The Architect will affix his signature to the same form described in Paragraph 1.11.4.1. to signify his certification of payment provided the application is otherwise satisfactory. 1.11.5 Decisions to Withhold Certification. 1.11.5.1 The Architect may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the City, if in the Architect's opinion the representations to the City required by Paragraph 1.11.4.2. can not be made. If the Architect is unable to certify payment in the amount of the Application, the Architect will notify the Contractor and City as provided in Paragraph 1.11.4.1. If the Contractor and Architect cannot agree on a revised amount, the Architect will promptly issue a Certificate for Payment for the amount for which the Architect is able to make such representations to the City. The Architect may also withhold a Certificate for Payment or, because of subsequently discovered evidence, may nullify the whole or a part of a Certificate for Payment previously issued, to such extent as may be necessary in the Architect's opinion to protect the City from loss for which the Contractor is responsible, including loss resulting from acts and omissions described in Paragraph 1.5.5.2.,because of: (a) defective Work not remedied; (b) third party claims filed or reasonable evidence indicating probable filing of such claims unless security acceptable to the City is provided by the Contractor; (c) failure of the Contractor to make payments properly to Subcontractors or for labor,materials or equipment; (d) reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; (e) damage to the City or another contractor; (f) reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or (g) persistent failure to carry out the Work in accordance with the Contract Documents. 1.11.5.2 When the above reasons for withholding certification are removed,certification will be made for amounts previously withheld. 1.11.6 Progress Payments. 1.11.6.1 After the Architect has issued a Certificate for Payment, the City shall make payment in the manner and within the time provided in the Contract Documents, and shall so notify the Architect. If the City believes the Contractor is not 38 current in its legitimate obligations to suppliers, laborers and/or Subcontractors on the Project, City may(but is not obligated to) withhold payment until it receives partial or final releases, or other reasonable proof from the Contractor that this situation does not exist. 1.11.6.2 The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the City, out of the amount paid to the Contractor on account of such Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on account of such Subcontractor's portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub- subcontractors in a similar manner. City is not obligated to monitor payments to Subcontractors or Sub-subcontractors, and nothing in this paragraph shall create any right on the part of a Subcontractor or Sub-subcontractor against City. 1.11.6.3 Neither the City nor Architect shall have an obligation to pay or to see to the payment of money to a Subcontractor or Sub-subcontractor. 1.11.6.4 Payment to material suppliers shall be treated in a manner similar to that provided in Paragraphs 1.11.6.2., 1.11.6.3. and 1.11.6.4. 1.11.6.5 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the City shall not constitute acceptance of Work not in accordance with the Contract Documents. 1.11.7 Failure of Payment. 1.11.7.1 If the City incurs any costs and expenses in curing any default of the Contractor or correcting defective Work, the City shall have an absolute right to offset such amount against the Contract Sum under this Contract, and may, in the City's sole discretion, elect either to: (1) deduct an amount equal to that to which the Owner is entitled, or (2) issue a written notice to the Contractor reducing the GMP by an amount equal to that to which the Owner is entitled. 1.11.8 Substantial Completion. 1.11.8.1 When the Contractor considers that the Work, or a portion thereof which the City agrees to accept separately, is substantially complete, the Architect and City shall review the punch list prepared by Contractor and supplement the list as necessary. 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. 1.11.8.1.1 The Contractor's superintendent shall participate in the preparation of the Contractor's punch list that is submitted to the Architect and City for supplementation. Upon receipt, the Architect shall perform a spot review to determine the adequacy and completeness of the Contractor's punch list. Should the Architect determine that the Contractor's punch list lacks sufficient detail or requires extensive supplementation,the punch list will be returned to the Contractor for further inspection and revision. The date of Substantial Completion will be delayed until the punch list submitted is a reasonable 39 representation of the work to be done. 1.11.8.1.2 Upon receipt of an acceptable Contractor's punch list, the Contractor's superintendent shall accompany the Architect, its Consultants and the City(at its discretion)during their inspections and the preparation of their supplements to the Contractor's punch list. The superintendent shall record or otherwise take note of all supplementary items. The Architect will endeavor to furnish to the Contractor typed, hand written or recorded supplements to the punch list in a prompt manner; however, any delay in the Contractor's receiving said supplements from the Architect shall not be cause for a claim for additional cost or extension of time. 1.11.8.2 When the Contractor notifies Architect that it has completed or corrected items on the punch list, the Architect will make an inspection to determine whether the Work or designated portion thereof is substantially complete. If the Architect's inspection discloses any item, whether or not included on the Contractor's punch list, which is not sufficiently complete in accordance with the Contract Documents so that the City can occupy or utilize the Work or designated portion thereof for its intended use, the Contractor shall,before issuance of the Certificate of Substantial Completion, complete or correct such item upon notification by the Architect. In such case, the Contractor shall then submit a request for another inspection by the Architect to determine Substantial Completion. Any further inspections by the Architect for the purpose of determining the Project is Substantially Complete shall be at Contractor's cost and the City may deduct such cost from any amount payable to Contractor hereunder. 1.11.8.3 When the Work or designated portion thereof is substantially complete, the Architect will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion, shall establish responsibilities of the City 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. 1.11.8.4 The Certificate of Substantial Completion shall be submitted to the City and Contractor for their written acceptance of responsibilities assigned to them in such Certificate. Upon such acceptance and consent of surety, if any, the City, in its sole discretion, may make payment of retainage, or a portion thereof as determined in the City's sole discretion, applying to such Work or designated portions thereof. Such payment shall be adjusted for Work that is incomplete or not in accordance with the requirements of the Contract Documents. 1.11.8.5 Upon final completion of all remaining outstanding or incomplete work, identified in the Certificate of Substantial Completion, the Architect shall issue a Certificate of Final Completion and Acceptance. Upon such issuance, the City shall release all remaining retainage, if any. 1.11.8.6 The Contractor shall keep all required insurance in full force, 40 and provide payment for all utilities, until the Certificate of Substantial Completion and Acceptance is issued, and all Work is accepted by the City in writing, regardless of the stated date of Substantial Completion. Such Acceptance shall not be unreasonably withheld. Contractor shall provide City a minimum of 3 days written notice of Contractor's planned utility contract termination date. 1.11.9 Partial Occupancy or Use. 1.11.9.1 The City may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement with the Contractor, provided such occupancy or use is consented to by the insurer as required under Paragraph 1.13.3.1. and authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use may commence whether or not the portion is substantially complete, provided the City and Contractor have accepted in writing the responsibilities assigned to each of them for payments,retainage,if any,security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. 1.11.9.2 Immediately prior to such partial occupancy or use, the City, Contractor and Architect shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work. 1.11.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. 1.11.10 Final Completion and Final Payment. 1.11.10.1 Upon City's receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment,the Architect will promptly make such inspection and, when the Architect finds the Work acceptable under the Contract Documents and the Contract fully performed, the Architect will promptly issue a final Certificate for Payment stating that to the best of the Architect's knowledge, information and belief, and on the basis of the Architect's on-site visits and inspections, the Work has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor and noted in the final Certificate is due and payable. The Architect's final Certificate for Payment will constitute a further representation that conditions listed in Paragraph 1.11.10.2. as precedent to the Contractor's being entitled to final payment have been fulfilled. Prior to final payment, the Contractor shall submit to the Architect the following completed forms: (a) Contractor's Affidavit of Payment of Debts and Claims; (b) Contractor's Affidavit of Release of Liens; 41 (c) Consent of Surety to Final Payment(if applicable); (d) Subcontractor's Unconditional Releases — each signed and notarized on a single piece of paper; (e) Maintenance and inspection manuals—three(3)sets of each bound in a 3 inch"D-slant"ring binder; (fj Final list of subcontractors-. (g) one (1) complete set of marked-up copies of the Drawings and Specifications accurately showing the Project as constructed. Such Specifications and Drawings shall be marked to show all changes and modifications that have been incorporated into the Work as performed; (h) other data establishing payment or satisfaction of obligations, such as receipts,releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated by the City; and (i) any other"Closeout Documents"required under the Contract Documents. Documents identified as affidavits must be notarized. All manuals will contain an index listing the information submitted. The index sections will be divided and identified by tabbing each section as listed in the index. Upon request, the Architect will furnish the Contractor with blank copies of the forms listed above. Final payment, constituting the entire unpaid balance of the Contract Sum shall be paid by the City to the Contractor thirty(30) days after Substantial Completion of the Work, unless otherwise stipulated in the Certificate of Completion, provided the Contract is fully performed, and Final Certificate of Payment has been issued by the Architect. The City may accept certain portions of the Work as being complete prior to the acceptance of the entire Project. If certain areas are accepted by the City as being completed, and if the Contractor has completed all of the requirements for final payment of the portion of Work, the City may, but is not required to, release retainage for that area/portion of Work. Amounts of retainage shall be agreed upon by both City and Contractor prior to final acceptance of these areas. 1.11.10.2 If, after Substantial Completion of the Work, final completion thereof is materially delayed through no fault of the Contractor or by issuance of Change Orders affecting final completion, and the Architect so confirms, the City shall, upon application by the Contractor and certification by the Architect, and without terminating the Contract, 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 retainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Architect prior to certification of such payment. Such payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. 42 1.11.10.3 Acceptance of final payment by the Contractor shall constitute a waiver of claims by Contractor except for any Claims then pending that comply with the requirements of Paragraph 1.6.3. 1.12 Protection of Persons and Property. 1.12.1 Safety Precautions and Programs. 1.12.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all necessary safety precautions and programs in connection with the performance of the Contract. 1.12.2 Safety of Persons and Property. 1.12.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: (a) employees on the Work and other persons who may be affected thereby including but not limited to the City's employees, invitees and the general public; (b) the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub-subcontractors; and (c) other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. 1.12.2.2 The Contractor shall give notices and comply with applicable laws, ordinances, rules,regulations and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss. 1.12.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection,including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. 1.12.2.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. When use or storage of explosives or other hazardous materials or equipment or unusual construction methods are necessary, the Contractor shall give the City and Architect reasonable advance notice of the presence or use of such materials, equipment or methods. 1.12.2.5 The Contractor shall promptly remedy damage and loss (other than damage or loss insured under property insurance required by the Contract Documents) to property referred to in Paragraphs 1.12.2.1(b). and 1.12.2.1.(c). caused in whole or in part 43 by the Contractor, a Subcontractor, a Sub-subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which the Contractor is responsible under Paragraphs 1.12.2.1, except damage or loss attributable to acts or omissions of the City or Architect or anyone directly or indirectly employed by either of them, or by anyone for whose acts either of them may be liable, and not attributable to the fault or negligence of the Contractor. The foregoing obligations of the Contractor are in addition to the Contractor's obligations under Paragraph 1.5.19.6. 1.12.2.6 The Contractor shall designate a responsible member of the Contractor's organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor's superintendent unless otherwise designated by the Contractor in writing to the Owner and Architect. 1.12.2.7 The Contractor shall not load or permit any part of the construction or site to be loaded so as to endanger its safety. 1.12.2.8 Suspension of all or a portion of the Work,for any reason,shall not relieve the Contractor of its obligations under Paragraph 1.12.2. 1.12.2.9 The Contractor shall promptly report in writing to the City and Architect all accidents arising out of or in connection with the Work which cause death, personal injury, or property damage, giving full details and statement of any witnesses. In addition, if death, serious personal injuries, or serious property damages are caused, the accident shall be reported immediately by telephone or messenger to City and Architect. 1.12.2.10 The Contractor shall be responsible for the protection and security of the Work and the Project,until it receives written notification that the Substantial Completion of the Work has been accepted by the City unless otherwise provided in the Certificate of Substantial Completion. 1.12.3 Hazardous Materials. 1.12.3.1 Contractor agrees that it shall not transport to, use, generate, dispose of, or install at the Project site any Hazardous Substance (as defined in 1.12.3.1.3.), except in accordance with applicable Environmental Laws. Further, in performing the Work, Contractor shall not cause any release of Hazardous Substances into, or contamination of, the environment, including the soil, the atmosphere, any water course or ground water, except in accordance with applicable Environmental Laws (as hereafter defined at Paragraph 1.12.3.1.3). In the event Contractor engages in any of the activities prohibited in this Paragraph 1.12.3.1. to the fullest extent permitted by law, Contractor hereby indemnifies and holds City,Architect and all of their respective officers, agents and employees harmless from and against any and all claims, damages, losses, causes of action, suits, and liabilities of every kind, including, but not limited to, expenses of litigation, court costs, punitive damages and attorneys' fees, arising out of, incidental to or resulting from the activities prohibited in this Paragraph 1.12.3. 1.12.3.2 In the event Contractor encounters on the Project site any Hazardous Substance, or what Contractor may reasonably believe to be a Hazardous Substance, and which is being introduced to the Work, or exists on the Project site, in a 44 manner violative of any applicable Environmental Laws, Contractor shall immediately stop work in the area affected and report the condition to City and Architect in writing. The Work in the affected area shall not thereafter be resumed except by written authorization of City if in fact a Hazardous Substance has been encountered and has not been rendered harmless. In the event Contractor fails to stop the Work upon encountering a Hazardous Substance at the Project site, to the fullest extent permitted by law, Contractor hereby indemnifies and holds City, Architect and all of their respective officers,agents and employees harmless from and against any and all claims, damages, losses, causes of action, suits, and liabilities of every kind, including, but not limited to, expenses of litigation, court costs, punitive damages and attorneys' fees, arising out of, incidental to or resulting from Contractor's failure to stop the Work. 1.12.3.3 City and Contractor may enter into a separate agreement and/or Change Order for Contractor to remediate and/or render harmless pre-existing Hazardous Substances, but Contractor shall not be required to remediate and/or render harmless the Hazardous Substance absent such agreement. Contractor shall not be required to resume work in any area affected by the Hazardous Substance until such time as the Hazardous Substance has been remediated and/or rendered harmless. Contractor shall be solely responsible for all costs of remediation associated with Hazardous Substances imported, with or without Owner's knowledge, to the work site by Contractor or any Subcontractor. 1.12.3.4 For purposes of this Agreement, the term "Hazardous Substance" shall mean and include any element constituent, chemical, substance, compound, or mixture, which are defined as a hazardous substance by any local, state or federal law, rule, ordinance, by-law, or regulation pertaining to environmental regulation, contamination, clean-up or disclosure, including, without limitation, The Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), The Resource Conservation and Recovery Act ("RCRA"), The Toxic Substances Control Act ("TSCA"), The Clean Water Act ("CWA"), The Clean Air Act ("CAA"), the Marine Protection Research and Sanctuaries Act ("MPRSA"), The Occupational Safety and Health Act ("OSHA"), The Superfund Amendments and Reauthorization Act of 1986 ("SARA"), or other state superlien or environmental clean-up or disclosure statutes including all state and local counterparts of such laws (all such laws, rules and regulations being referred to collectively as "Environmental Laws"). It is the Contractor's responsibility to comply with Paragraph 1.12.3.1 based on the law in effect at the time its services are rendered and to comply with any amendments to those laws for all services rendered after the effective date of any such amendments. 1.12.4 Emergencies. 1.12.4.1 In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor's discretion, to prevent threatened damage, injury or loss. Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Paragraph 1.6.3. and Paragraph 1.9. 1.13 Insurance and Bonds. 45 1.13.1 Contractor's Liability Insurance. 1.13.1.1 The Contractor shall purchase and maintain insurance as shown in ATTACHMENT 1, OWNER'S INSURANCE REQUIREMENTS OF CONTRACTOR and specific project related insurance requirements as noted in ATTACHMENT 2, SPECIAL CONDITIONS OF THE AGREEMENT. 1.13.2 Certificates of Insurance. 1.13.2.1 Certificates of Insurance shall be prepared and executed by the insurance company or its authorized agent and must be provided in accordance with Section 1.13.1.1.1 and are attached as EXHIBIT A, Contractor's Insurance Certificates including Builder's Risk. 1.13.3 Property Insurance. 1.13.3.1 Partial occupancy or use in accordance with Paragraph 1.11.9. shall not commence until the insurance company or companies providing property insurance have consented to such partial occupancy or use by endorsement or otherwise. The City and the Contractor shall take reasonable steps to obtain consent of the insurance company or companies and shall, without mutual written consent, take no action with respect to partial occupancy or use that would cause cancellation, lapse or reduction of insurance. 1.13.3.2 Loss of Use Insurance. The City, at the City's option, may purchase and maintain such insurance as will insure the City against loss of use of the City's property due to fire or other hazards, however caused. 1.13.3.3 If the Contractor requests in writing that insurance for risks other than those described herein or other special causes of loss be included in the property insurance policy,the City shall,at City's option,include such insurance, and the cost thereof shall be charged to the Contractor by appropriate Change Order. 1.13.3.4 If during the Project construction period the City insures properties, real or personal or both, at or adjacent to the site by property insurance under policies separate from those insuring the Project,or if after final payment property insurance is to be provided on the completed Project through a policy or policies other than those insuring the Project during the construction period, the City shall waive all rights for damages caused by fire or other causes of loss covered by this separate property insurance. All separate policies shall provide this waiver of subrogation by endorsement or otherwise. 1.13.3.5 A loss insured under City's property insurance shall be adjusted by the City and made payable to the City for the insureds, as their interests may appear, subject to requirements of Paragraph 1.13.3. The Contractor shall pay Subcontractors their just shares of insurance proceeds received by the Contractor, and by appropriate agreements, written where legally required for validity, shall require Subcontractors to make payments to their Sub-subcontractors in similar manner. 1.13.3.6 If after such loss no other special agreement is made and unless the City terminates the Contract for convenience, replacement of damaged property shall be 46 performed by the Contractor after notification of a Change in the Work in accordance with Paragraph 1.9. 1.13.4 Performance Bond and Payment Bond. 1.13.4.1 Pursuant to Chapter 2253 of the Texas Government Code, for all public works contracts with governmental entities, performance and payment bonds are required when the Contract Amount exceeds $50,000. In the event a performance or payment bond or both is required either by law or in the City's discretion, such bonds shall be executed in accordance with all requirements of Article 7.19-1 of the Texas Insurance Code, all other applicable law, and the following: (a) The Contractor shall execute performance and payment bonds for the full Contract Amount in the forms attached hereto as Exhibit B and C. (b) The bond surety shall be authorized under the laws of the State of Texas to provide a performance and payment bond and shall have attached proof of authorization of the surety to act in the performance and payment of bonds. (c) The Contractor shall provide original, sealed, and complete counterparts of the executed bonds in the forms required by the Contract Documents, which are attached as Exhibit B and C, together with valid original powers of attorney, at the time of execution of this Agreement and prior to the commencement of Work. Copies of the executed bonds shall be attached hereto as Exhibit B and C. (d) The performance and payment bonds shall remain in effect for a period of one (1) year after Final Completion of the Work and shall be extended for any warranty work to cover the warranty period. (e) If at any time during the execution of this Agreement in the required period thereafter, the bond or bonds become invalid or ineffective for any reason, the Contractor shall promptly supply within ten (10) days such other bond or bonds,which bond or bonds shall assure performance or payment as required. 1.13.4.2 The Contractor may make such changes and alterations as the City may require in the Work or any part thereof without affecting the validity of this Agreement and any accompanying bond. If such changes or alterations diminish the quantity of the Work to be done,they shall not constitute the basis for any claim for damages or anticipated profits. If the City makes changes or alterations that render useless any Work already done or material already used in said Work, then the City shall compensate the Contractor for any material or labor so used, and for any actual loss occasioned by such change due to actual expenses incurred in preparation for the work as originally planned. 1.14 Uncovering and Correction of Work. 1.14.1 Uncovering of Work. 47 1.14.1.1 If a portion of the Work is covered contrary to the Architect's request, required inspection, or contrary to requirements in the Contract Documents, the Work must, if required in writing by the Architect, be uncovered for the Architect's examination or inspection of the work and be replaced at the Contractor's expense without change in the Contract Time.' 1.14.1.2 If a portion of the Work has been covered which the Architect has not specifically requested to examine prior to its being covered, the Architect may request to see such Work and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order, be at the City's expense. If such Work is not in accordance with the Contract Documents, correction shall be at the Contractor's expense. 1.14.2 Correction of Work. 1.14.2.1 Before or After Substantial Completion. 1.14.2.1.1 The Contractor shall promptly correct Work rejected by the Architect or failing to conform to the requirements of the Contract Documents, whether discovered before or after Substantial Completion and whether or not fabricated, installed or completed. Costs of correcting such rejected Work,including additional testing and inspections and compensation for the Architect's services and expenses made necessary thereby, shall be at the Contractor's expense. 1.14.2.2 After Substantial Completion. 1.14.2.2.1 In addition to the Contractor's obligations under Paragraph 1.5.7., if, within one year after the date of Substantial Completion of the Work or designated portion thereof or after the date for commencement of warranties established under Paragraph 1.11.9.1., or by terms of an applicable special warranty required by the Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice from the City to do so unless the City has previously given the Contractor a written acceptance of such particular condition. The City shall give such notice promptly after discovery of the condition. If the Contractor fails to correct nonconforming Work within a reasonable time during that period after receipt of notice from the City or Architect, the City may correct it in accordance with Paragraph 1.4.5. The "prompt" correction of defective work by the Contractor after receipt of notification from the City as described above shall be defined as follows: (a) The Contractor shall make written response to the City within twenty-four(24)hours of receipt of the City's notice, acknowledging receipt of the notice and providing the proposed schedule to conduct corrective work. Corrective work shall not interfere with the City's normal operation and use of the Project, unless expressly approved by the City; 48 (b) For corrective work which is not a life safety issue or which will not, by the nature of the defect, cause subsequent damage to the Project, corrective work shall be completed within fourteen (14) calendar days; (c) For corrective work which by its nature may cause subsequent damage to the Project, corrective work required to prevent subsequent damage shall be completed within twenty-four (24) hours, and if such work is a temporary repair,permanent repair of the corrective work shall be completed within seven (7) calendar days. The Contractor shall also correct all subsequent damage caused by such corrective work; (d) For corrective work which affects services to, and ordinary use of the Project, corrective work shall be completed within twenty-four (24) hours, and if such work is a temporary repair, permanent repair of the corrective work shall be completed within seven(7) calendar days; and (e) The time frames stated above for completion of permanent corrective work shall be equitably adjusted as required for legitimate delays caused by weather delays, material acquisition and other factors beyond the Contractor's direct control. 1.14.2.2.2 The one-year period for correction of Work shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual performance of the Work. 1.14.2.2.3 These obligations under Subparagraph 1.14.2.2. shall survive acceptance of the Work under the Contract and termination of the Contract. The period for any Work corrected pursuant to Paragraph 1.14.2. shall be extended for a period of one year after the date said corrective work is completed. 1.14.2.3 The Contractor shall remove from the site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the City. 1.14.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction, whether completed or partially completed, of the City or separate contractors caused by the Contractor's correction or removal of Work which is not in accordance with the requirements of the Contract Documents. 1.14.2.4.1 Where non-conforming Work is found, the entire area of Work involved shall be corrected unless the Contractor can completely define the limits to the Architect's satisfaction. Additional testing, sampling, or inspecting needed to define nonconforming Work shall be at the Contractor's expense, and performed by the City's testing laboratory if such services are reasonably required by the Architect. All corrected Work shall be retested at the Contractor's expense. Extra architectural or other services 49 required to analyze non-conforming Work shall be paid for by the Contractor. 1.14.2.5 Nothing contained in Paragraph 1.14.2. shall be construed to establish a period of limitation with respect to other obligations which the Contractor might have under the Contract Documents. Nothing contained in Paragraph 1.14.2. is intended to limit or modify any obligations under the law or under the Contract Documents, including any warranty obligations, expressed or implied. 1.14.3 Acceptance of Nonconforming Work. 1.14.3.1 If the Owner prefers to accept Work which is not in accordance with the requirements of the Contract Documents, the City may do so instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and equitable. Such adjustment shall be effected whether or not final payment has been made. 1.15 Miscellaneous Provisions. 1.15.1 Governing Law. 1.15.1.1 This Contract and any disputes related to the Work shall be governed by the law of the State of Texas, and any disputes shall be resolved in Brazoria County, Texas. 1.15.2 Successors and Assigns. 1.15.2.1 The City and Contractor 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. Contractor shall not assign the Contract as a whole, or in part, without written consent of the City. 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. 1.15.3 Written Notice. 1.15.3.1 Written notice shall be deemed to have been served only if the writing is delivered to the addressees set out below, or to such other address as has been previously clearly identified in writing by the addressee, or if delivered by mail or in form of electronic transmission to that office,or sent by registered or certified mail to that address. City: City of Pearland 3519 Liberty Drive Pearland, Texas 77582 Attn: Engineering&Capital Projects Contractor: 50 1.15.4 Rights and Remedies. 1.15.4.1 No action or failure to act by the City, Architect or Contractor shall constitute a waiver of a right or duty afforded them under the Contract,nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in writing. 1.15.5 Tests and Inspections. 1.15.5.1 Tests, inspections and approvals of portions of the Work required by the Contract Documents or by laws, ordinances, rules, regulations or orders of public authorities having jurisdiction shall be made at appropriate times. Unless otherwise provided,the Contractor shall make scheduling arrangements for such tests, inspections and approvals with an independent testing laboratory employed by the City for this purpose, or with the appropriate public authority. City shall bear the normal costs of these services, but not any excess costs attributable to Contractor-caused scheduling problems, or other Contractor error. The Contractor shall give the Architect timely notice of when and where tests and inspections are to be made so the Architect may observe such procedures. 1.15.5.2 If the Architect, City or public authorities having jurisdiction determine that portions of the Work require additional testing, inspection or approval not included under Paragraph 1.15.5.1., the Architect will, upon written authorization from the City, instruct the Contractor to make arrangements for such additional testing, inspection or approval by an entity acceptable to the City, and the Contractor shall give timely notice to the Architect of when and where tests and inspections are to be made so that the Architect maybe present for such procedures. Such costs, except as provided in Paragraph 1.15.5.3., shall be at the City's expense. 1.15.5.3 If such procedures for testing, inspection or approval under Paragraphs 1.15.5.1 and 1.15.5.2. reveal failure of the portions of the Work to comply with requirements established by the Contract Documents, all costs made necessary by such failure including those of repeated procedures and compensation for the Architect's services and expenses shall be at the Contractor's expense. Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be kept and logged by the Contractor in ProTrak. All testing reports will be made available to all parties. 1.15.5.4 If the Architect is to observe tests, inspections or approvals required by the Contract Documents, the Architect will do so promptly and, where practicable, at the normal place of testing. 1.15.5.5 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work. 1.16 Termination or Suspension of the Contract. 51 1.16.1 Termination by the Contractor. 1.16.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of ninety(90) consecutive days through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, for any of the following reasons: (a) issuance of an order of a court or other public authority having jurisdiction which requires all Work to be stopped; (b) an act of government, such as a declaration of national emergency which requires all Work to be stopped; or (c) because the Architect has not issued a Certificate for Payment and has not notified the Contractor of the reason for withholding certification as provided in Paragraph 1.11.4.1., or because the City has not made payment on a Certificate for Payment within the time stated in the Contract Documents,provided notice is given as required under Subparagraph 1.11.4.1. 1.16.1.2 The Contractor may terminate the Contract if, through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, repeated suspensions, delays or interruptions of the entire Work by the City as described in Paragraph 1.16.3. constitute in the aggregate more than 100 percent of the total number of days scheduled for completion, or 120 days in any 365- day period,whichever is less. 1.16.1.3 If the Work is stopped for ninety(90)consecutive days for any reason described in Paragraph 1.16.1.1.or 1.16.1.2.,the Contractor may,upon fourteen(14) days' written notice to the City and Architect, terminate the Contract and recover from the City payment for Work. 1.16.1.4 Notwithstanding anything to the contrary contained herein or in the other Contract Documents, the City shall not be responsible for damages for loss of anticipated profits on Work not performed on account of any termination described in Subparagraphs 1.16.1.1., 1.16.1.2., and 1.16.1.3. 1.16.2 Termination by the Owner for Cause. 1.16.2.1 The City may terminate the Contract if the Contractor: (a) refuses or fails to supply enough properly skilled workers or proper materials; (b) fails to make payment to Subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the Subcontractors; (c) disregards laws, ordinances, or rules, regulations or orders 52 of.a public authority having jurisdiction; (d) otherwise is guilty of substantial breach of a provision of the Contract Documents; (e) fails to furnish the City, upon request, with assurances satisfactory to the City evidencing the Contractor's ability to complete the Work in compliance with all the requirements of the Contract Documents; (f) fails to proceed continuously and diligently with the construction and completion of the Work, except as permitted under the Contract Documents; or (g) fails to provide all required policies of insurance and/or bonds. 1.16.2.2 When any of the above reasons exist, the City may without prejudice to any other rights.or remedies of the City and after giving the Contractor and the Contractor's surety, if any, seven days written notice of the specific default by Contractor and an opportunity to cure said default. If Contractor fails to cure default, after an additional seven day notice the Owner may terminate employment of the Contractor and may, subject to any prior rights of the surety: (a) take possession of the site and of all materials, equipment, tools,and construction equipment and machinery thereon owned by the Contractor; (b) accept assignment of subcontracts pursuant to Paragraph 1.7.4; (c) Make demand upon Contractor's surety to complete the Work; and (d) finish the Work by whatever reasonable method the City may deem expedient. 1.16.2.3 When the City terminates the Contract for one of the reasons stated in Paragraph 1.16.2.1, the Contractor shall not be entitled to receive further payment until the Work is finished. 1.16.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including compensation for the Architect's services and expenses made necessary thereby, and other damages incurred by the City and not expressly waived, including attorney's fees, such excess shall be paid to the Contractor. If such costs and damages exceed the unpaid balance,the Contractor shall pay the difference to the City. This obligation for payment shall survive termination of the Contract. 1.16.2.5 If a Performance Bond has been furnished and the Contractor is declared by the City to be in default under the Contract,the Surety shall promptly, in no event to exceed 30 days, remedy the default by commencing and continuing to perform the remaining work of the Contract in accordance with its terms and conditions, or by obtaining a bid or bids in accordance with its terms and conditions. At City's election, upon determination by the City and the Surety of the lowest responsible bidder, the Surety will complete the Work or will arrange for a Contract between such bidder and the City, and 53 make available sufficient funds to pay the cost of completion less the balance of the Contract Sum, but not exceeding the Penal Sum of the bond. The phrase "balance of the Contract Sum"as used herein shall mean the total amount payable by the City to the Contractor under the Contract, including any adjustments thereto made in accordance with the terms and conditions of this Contract, and amendments thereto less the amount previously paid by the City to the Contractor. 1.16.3 Suspension by the Owner for Convenience. 1.16.3.1 The City may, without cause, and with seven days written notice, order the Contractor in writing to suspend, delay or interrupt the Work in whole or in part for such period of time as the City may determine. 1.16.3.2 If City suspends the Contractor's performance for convenience, an adjustment shall be made to the Contract Sum as calculated under Paragraph 1.9 and shall include profit. No adjustment shall be made to the extent: (a) that performance is, was or would have been so suspended, delayed or interrupted by another cause for which the Contractor is responsible; or (b) that an equitable adjustment is made or denied under another provision of the Contract. 1.16.4 Termination by the Owner for Convenience. 1.16.4.1 The City may, at any time, terminate the Contract, in whole or in part,with seven days written notice, for the City's convenience and without cause. 1.16.4.2 Upon receipt of written notice from the City of such termination for the City's convenience, the Contractor shall: (a) cease operations as directed by the City in the notice; (b) take actions necessary, or that the City may direct, for the protection and preservation of the Work; and (c) except for Work not so terminated and/or directed to be performed prior to the effective date of termination stated in the notice, terminate all existing subcontracts and purchase orders and enter into no further subcontracts and purchase orders. 1.16.4.3 In the event of a termination under Paragraph 1.16.4, the Contractor shall be paid the value of its Work to the date of termination plus such sums as are reasonably required to cover the cost to Contractor, its Subcontractors and suppliers, to shut down the Project. City shall not be responsible for damages for loss of anticipated profits on Work not performed on account of any termination. 1.16.4.4 Upon determination by a court of competent jurisdiction that termination of the Contract, pursuant to Paragraph 1.16.2 was wrongful, such termination 54 will be deemed converted to a termination for convenience pursuant to Paragraph 1.16.4, and Contractor's remedy for wrongful termination shall be limited to the recovery of the payments permitted for termination for convenience as set forth in Paragraph 1.16.4. END OF GENERAL PROVISIONS SECTION 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES The Construction Manager shall perform the services described in this Paragraph. The services to be provided under Paragraphs 2.1 and 2.2 constitute the Preconstruction Phase services. If the City and Construction Manager agree, the Construction Phase may commence before the Preconstruction Phase is completed, in which case both phases will proceed concurrently. 2.1 Preconstruction Phase. 2.1.1 Preliminary Evaluation. The Construction Manager shall provide a preliminary evaluation of the City's program and Project budget requirements, each in terms of the other. 2.1.2 Consultation. The Construction Manager with the Architect shall jointly schedule and attend regular meetings with the City. The Construction Manager shall consult with the City and Architect regarding site use and improvements and the selection of materials, building systems and equipment. The Construction Manager 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 Project Schedule. When Project requirements described in Paragraph 3.1.1 have been sufficiently identified, the Construction Manager shall prepare, and periodically update, a preliminary Project schedule for the Architect's review and the City's approval. The Construction Manager shall coordinate and integrate the preliminary Project schedule with the services and activities of the City, Architect and Construction Manager. As design proceeds, the preliminary Project schedule shall be updated to indicate proposed activity sequences and durations, milestone dates for receipt and approval of pertinent information, submittal of a Guaranteed Maximum Price proposal, preparation and processing of shop drawings and samples, delivery of materials or equipment requiring long-lead-time procurement, City's occupancy requirements showing portions of the Project having occupancy priority, and proposed date of Substantial Completion. If preliminary Project schedule updates indicate that previously approved schedules may not be met, the Construction Manager shall make appropriate recommendations to the City and Architect. 2.1.4 Phased Construction. The Construction Manager shall make recommendations to the City and Architect regarding the phased issuance of 55 Drawings and Specifications to facilitate phased construction of the Work, if such phased construction is appropriate for the Project, taking into consideration such factors as economies, time of performance, availability of labor and materials, and provisions for temporary facilities. 2.1.4.1 Preliminary Cost Estimates. When the City has sufficiently identified the Project requirements and the Architect has prepared other basic design criteria, the Construction Manager shall prepare, for the review of the Architect and approval of the City, a preliminary cost estimate utilizing area,volume or similar conceptual estimating techniques. 2.1.4.1.1 When Schematic Design Documents have been prepared by the Architect and approved by the City, the Construction Manager shall prepare, for the review of the Architect and approval of the City, a more detailed estimate with supporting data. During the preparation of the Design Development Documents, the Construction Manager shall update and refine this estimate at appropriate intervals agreed to by the City, Architect and Construction Manager. When Design Development Documents have been prepared by the Architect and approved by the City, the Construction Manager shall prepare a detailed estimate with supporting data for review by the Architect and approval by the Owner. During the preparation of the Design Development Documents (DD's), the Construction Manager shall provide an initial cost estimate at 60% DD's and update and refine this estimate when the Construction Documents (CD's) are fifty percent (50%) complete and again at ninety percent (90%) complete, and at any other appropriate intervals agreed to by the City, Architect and Construction Manager necessary to develop a GMP for the project. These cost estimate updates shall incorporate the latest design changes, alternate materials and processes as required to provide a Guaranteed Maximum Price that will meet the Owners stated project budget. Should the estimates of cost of the work exceed the latest approved project budget the Construction Manager shall inform the Owner and Architect and make recommendations for corrective action. 2.1.4.2 Subcontractors and Suppliers. The Construction Manager shall seek to develop subcontractor interest in the Project and shall furnish to the City and Architect for their information a list of possible subcontractors, including suppliers who are to furnish materials or equipment fabricated to a special design, from whom proposals will be requested for each principal portion of the Work. The Architect will promptly reply in writing to the Construction Manager if the Architect or City know of any objection to such subcontractor or supplier. The receipt of such list shall not require the City or Architect to investigate the qualifications of proposed subcontractors or suppliers, nor shall it waive the right of the City or Architect later to object to or reject any proposed subcontractor or supplier. 2.1.4.3 Long-Lead-Time Items. The Construction Manager shall recommend to the City and Architect a schedule for procurement of long-lead-time items which will constitute 56 part of the Work as required to meet the Project schedule. If such long-lead-time items are procured by the City, they shall be procured on terms and conditions acceptable to the Construction Manager. Upon the City's acceptance of the Construction Manager's Guaranteed Maximum Price proposal, all contracts for such items shall be assigned by the City to the Construction Manager, who shall accept responsibility for such items as if procured by the Construction Manager. The Construction Manager shall expedite the delivery of long-lead-time items. 2.1.4.4 Extent of Responsibility. The Construction Manager does not warrant or guarantee estimates and schedules except as may be included as part of the Guaranteed Maximum Price. The recommendations and advice of the Construction Manager concerning design alternatives shall be subject to the review and approval of the City and the City's professional consultants. It is not the Construction Manager'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 Construction Manager recognizes that portions of the Drawings and Specifications are at variance therewith, the Construction Manager shall promptly notify the Architect and City in writing. 2.1.4.5 Equal Employment Opportunity and Affirmative Action. The Construction Manager shall comply with applicable laws, regulations and special requirements of the Contract Documents regarding equal employment opportunity and affirmative action programs. See attached Title VI Nondiscrimination Assurances attached hereto as ATTACHMENT 1 2.2 Guaranteed Maximum Price Proposal. 2.2.1 When the Drawings and Specifications are sufficiently complete, but in no case later than 90% Construction Documents, the Construction Manager shall propose a Guaranteed Maximum Price,which shall be the sum of the estimated Cost of the Work and the Construction Manager's Fee along with any identified Allowances as have been determined to be necessary. Provided, however, Construction Manager understands such estimates are relied upon by the City in making various Project determinations, and, therefore, should Construction Manager's Guaranteed Maximum Price proposal exceed the City's applicable budget by more than 2.5%, all pre-construction services rendered thereafter to render the Project within 2.5% of the budget by Construction Manager shall be at its cost. 2.2.2 As the Drawings and Specifications may not be finished at the time the Guaranteed Maximum Price proposal is prepared, the Construction Manager shall provide in the Guaranteed Maximum Price for further development of the Drawings and Specifications by the Architect that is consistent with the Contract Documents and reasonably inferable therefrom. 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 separately identify,the Construction Manager's Contingency, a sum not to exceed three percent(2.5%) of the Guaranteed Maximum Price, an amount established by the Owner for the Construction Manager's use, subject to Owner's approval, to cover costs arising under Paragraph 2.2.2 and other costs 57 which are properly reimbursable as Cost of the Work but not the basis for a Change Order. Upon Contractor's completion of the Project, all unused portions of the Construction Manager's Contingency and those from the Guaranteed Maximum Price shall be set aside as cost savings for the benefit of the Owner. 2.2.3.1.1 Basis of Guaranteed Maximum Price. The Construction Manager shall include with the Guaranteed Maximum Price proposal a written statement of its basis,which shall include: (a) A list of the Drawings and Specifications, including all addenda thereto and the Conditions of the Contract, which were used in preparation of the Guaranteed Maximum Price proposal. (b) A list of the clarifications and assumptions made by the Construction Manager in the preparation of the Guaranteed Maximum Price proposal to supplement the information contained in the Drawings and Specifications. (c) The proposed Guaranteed Maximum Price, including a statement of the estimated cost organized by trade categories, contingency, and other items and the Fee that comprise the Guaranteed Maximum Price. (d) The Date of Substantial Completion upon which the proposed Guaranteed Maximum Price is based, and a schedule of the Construction Documents issuance dates upon which the date of Substantial Completion is based. 2.2.3.2 The Construction Manager shall meet with the City and Architect to review the Guaranteed Maximum Price proposal and the written statement of its basis. In the event that the City or Architect discover any inconsistencies or inaccuracies in the information presented, they shall promptly notify the Construction Manager, who shall make appropriate adjustments to the Guaranteed Maximum Price proposal, its basis, or both. This proposal shall provide the Owner no less than ten days to accept the GMP without invalidating the proposal or any of its terms. 2.2.3.3 Unless the City accepts the Guaranteed Maximum Price proposal in writing on or before the date specified in the proposal for such acceptance and so notifies the Construction Manager, the Guaranteed Maximum Price proposal shall not be effective without written acceptance by the Construction Manager. 2.2.3.4 Prior to the City's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a Notice to Proceed, the Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work, except as the City may specifically authorize in writing. 2.2.3.5 Upon acceptance by the City of the Guaranteed Maximum Price proposal, the Guaranteed Maximum Price and its basis shall be set forth in Amendment No. 1. The Guaranteed Maximum Price 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. 58 2.2.3.6 The City shall authorize and cause the Architect to revise the Drawings and Specifications to the extent necessary to reflect the agreed-upon assumptions and clarifications contained in Amendment No. 1. Such revised Drawings and Specifications shall be furnished to the Construction Manager in accordance with schedules agreed to by the City, Architect and Construction Manager. The Construction Manager shall promptly notify the Architect and City if such revised Drawings and Specifications are inconsistent with the agreed- upon assumptions and clarifications. 2.3 Construction Phase. 2.3.1 General. 2.3.1.1 The Construction Phase shall commence on: a) the City's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a Notice to Proceed, and b) the City's first authorization to the Construction Manager to: 1. award a subcontract, or 2. undertake construction Work with the Construction Manager's own forces, or 3. issue a purchase order for materials or equipment required for the Work. 2.4 Administration. 2.4.1 Those portions of the Work that the Construction Manager does not customarily perform with the Construction Manager's own personnel shall be performed under subcontracts or by other appropriate agreements with the Construction Manager. The Construction Manager shall obtain bids in accordance with the applicable requirements of Chapter 2269 of the Texas Government Code from Subcontractors and from suppliers of materials or equipment fabricated to a special design for the Work from the list previously reviewed and, after analyzing such bids, shall deliver such bids to the City and Architect.The City will then determine,with the advice of the Construction Manager, which bids will be accepted. The City may designate specific persons or entities from whom the Construction Manager shall obtain bids; however, if the Guaranteed Maximum Price has been established, the City may not prohibit the Construction Manager from obtaining bids from other qualified bidders. The Construction Manager shall not be required to contract with anyone to whom the Construction Manager has reasonable objection. 2.4.2 If the Guaranteed Maximum Price has been established and a specific bidder among those whose bids are delivered by the Construction Manager to the 59 City and Architect (1) is recommended to the City by the Construction Manager; (2) is qualified to perform that portion of the Work; and (3) has submitted a bid which conforms to the requirements of the Contract Documents without reservations or exceptions, but the City requires that another bid be accepted,then the Construction Manager may require that a change in the Work be issued to adjust the Contract Time and the Guaranteed Maximum Price by the difference between the bid of the person or entity recommended to the City by the Construction Manager and the amount of the subcontract or other agreement actually signed with the person or entity designated by the City. 2.4.3 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated to a special design shall conform to the payment provisions of Paragraphs 7.1.8 and 7.1.9 and shall not be awarded on the basis of cost plus a fee without the prior consent of the City. 2.4.4 The Construction Manager shall schedule and conduct meetings with appropriate Subcontractors at which the City, Architect, Construction Manager and appropriate Subcontractors can discuss the status of the Work. The Construction Manager shall prepare and promptly distribute meeting minutes. 2.4.5 Promptly after the City's acceptance of the Guaranteed Maximum Price proposal, the Construction Manager shall prepare a schedule in accordance with Paragraph 1.5.11, General Conditions, including the Owner's occupancy requirements. 2.4.6 The Construction Manager shall provide monthly written reports to the City and Architect on the progress of the entire Work. The Construction Manager shall maintain a daily log containing a record of weather, Subcontractors working on the site, number of workers, Work accomplished, problems encountered and other similar relevant data as the City may reasonably require. The log shall be available to the City and Architect. The Construction Manager shall promptly inform City in writing of any circumstance or development that is likely to delay Substantial Completion of the Project in accordance with the schedule. 2.4.7 The Construction Manager 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 Construction Manager shall identify variances between actual and estimated costs and report the variances to the City and Architect at regular intervals. 2.4.8 Professional Services. Paragraph 1.5.14.10, General Conditions shall apply to both the Preconstruction and Construction Phase. 2.4.9 Hazardous Materials. Paragraph 1.12.3, General Conditions shall apply to both the Preconstruction and Construction Phases. SECTION 3 OWNER'S RESPONSIBILITIES. 60 3.1 Information and Services. 3.1.1 The Owner shall provide information in a timely manner regarding the requirements of the Project, including a program which sets forth the City'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 City shall establish and update an overall budget for the Project, based on consultation with the Construction Manager and Architect, which shall include contingencies for changes in the Work and other costs which are the responsibility of the City. 3.1.3 Structural and Environmental Tests, Surveys and Reports. In the Preconstruction Phase, the City shall furnish the following with reasonable promptness and at the City's expense. Except to the extent that the Construction Manager knows of any inaccuracy, or should have reasonably discovered such error or inaccuracy, the Construction Manager shall be entitled to rely upon the accuracy of any such information, reports, surveys, drawings and tests described in Paragraphs 3.1.3.1 through 3.1.3.4 but shall exercise customary precautions relating to the performance of the Work. 3.1.3.1 Reports, surveys, drawings and tests concerning the conditions of the site which are required by law. 3.1.3.2 Surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. 3.1.3.3 The services of a geotechnical engineer when such services are requested by the Construction Manager and are reasonably required by the scope of the Project, as determined by the City or Architect. 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. 3.1.3.4 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. 3.1.3.5 The services of other consultants when such services are reasonably required by the scope of the Project, as determined by the City or Architect, and are requested by the Construction Manager. 3.2 Owner's Designated Representative. The City shall designate in writing City's Representative who shall have express authority, subject to the limitations set forth in the General Conditions, to bind the City with respect to all matters requiring 61 the City's approval or authorization. This City's Representative shall have the authority to make decisions on behalf of the City 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 Construction Manager. Except as otherwise provided in Paragraph 1.6.2.1, General Conditions, the Architect does not have such authority. 3.3 Architect. The City shall retain an Architect to provide Basic Services, including normal structural, mechanical and electrical engineering services. The City must authorize, in writing, and cause the Architect to provide additional service, requested by the Construction Manager which must necessarily be provided by the Architect for the Preconstruction and Construction Phases of the Work. Construction Manager has no authority to request services from the Architect on the City's behalf. Such services shall be provided in accordance with time schedules agreed to by the City, Architect and Construction Manager. Upon request of the Construction Manager, the City shall furnish to the Construction Manager a copy of the City's Agreement with the Architect. SECTION 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES. The City shall compensate and make payments to the Construction Manager for Pre-construction Phase services as follows: 4.1 Compensation. 4.1.1 For the services described in Paragraphs 2.1 and 2.2, the Construction Manager's compensation shall be calculated as follows: Pre-Construction Fee: $ 4.1.1 If compensation is based on a multiple of Direct Personnel Expense, Direct Personnel Expense is defined as the direct salaries of the Construction Manager's personnel engaged in the Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, pensions and similar contributions and benefits. 4.2 Payments. 4.2.1 Payments shall be made monthly following presentation of the Construction Manager's invoice and, where applicable, shall be in proportion to services performed. 4.2.2 Payments are due and payable thirty(30) calendar days from the date the correct and approved Construction Manager's invoice is received by the Owner. 62 4.2.3 The City stipulates that it is an exempt organization as defined by the Limited Sales, Excise and Use Tax Act and, as such, is exempt from the payment of the sales tax on materials and supplies used in the performance of this Contract. The Construction Manager shall issue exemption certificates to its Subcontractors and suppliers in lieu of said sales tax for all such materials and supplies, complying with all applicable State Comptroller's Rulings. SECTION 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES The City shall compensate the Construction Manager for Construction Phase services as follows: General Conditions: $ 5_1 Compensation. 5.1.IFor the Construction Manager's performance of the Work as described in Paragraph 2.3, the City shall pay the Construction Manager in current funds the Contract Sum consisting of the Cost of the Work as defined in Paragraph 7 and the Construction Manager's Fee determined as follows: Construction Manager At Risk Fee(as a Percentage): % 5.2 Guaranteed Maximum Price. 5.2.1 The sum of the Cost of the Work and the Construction Manager's Fee for the Work are guaranteed by the Construction Manager not to exceed the amount provided in Amendment No. 1, 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 is referred to in the Contract Documents as the Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Construction Manager without reimbursement by the City. In the event the Cost of Work plus the Construction Manager's Fee is less than the Guaranteed Maximum Price ("GMP"), the savings shall accrue one hundred percent(100%)to the City. 5.3 Changes in the Work. 5.3.1 Adjustments to the Guaranteed Maximum Price on account of changes in the Work subsequent to the execution of Amendment No. 1 may be determined by any of the methods listed in Paragraph 1.9.2.2, General Conditions, subject to the limitations provided in the General Conditions. 5.3.1.1 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 Paragraph 1.9.2.2 (c), General Conditions and the term "costs" as 63 used in Paragraph 1.9.3.6, General Conditions shall have the meanings assigned to them in the General Conditions and shall not be modified by this Paragraph 5. Adjustments to subcontracts awarded with the City's prior consent on the basis of cost plus a fee shall be calculated in accordance with the terms of those subcontracts. 5.3.1.2 In calculating adjustments to the Contract, the terms "cost" and "costs" as used in the above-referenced provisions of the General Conditions shall mean the Cost of the Work as defined in Paragraph 6 of this Agreement, and the term "and a reasonable allowance for overhead and profit" shall mean the Construction Manager's Fee as defined in Paragraph 5.1.1 of this Agreement. 5.3.1.3 If no specific provision is made in Paragraph 5.1.1 for adjustment of the Construction Manager's Fee in the case of changes in the Work, or if the extent of such changes is such, in the aggregate, that application of the adjustment provisions of Paragraph 5.1.1 will cause substantial inequity to the Owner or Construction Manager, the Construction Manager's Fee shall be equitably adjusted on the basis of the Fee established for the original Work. ,SECTION 6 COST OF THE WORK FOR CONSTRUCTION PHASE. 6.1 Costs To Be Reimbursed. 6.1.1The term "Cost of the Work" shall mean costs necessarily incurred by the Construction Manager in the proper performance of the Work. Such costs shall be at rates not higher than those customarily paid at the place of the Project except with prior consent of the City. The Cost of the Work shall include only the items set forth in this Paragraph 6. 6.1.1.1 Labor Costs. 6.1.1.1.1 Wage Rates. Pursuant to Section 2258.023(a) of the Texas Government Code, wage rates paid by the Contractor and any subcontractor on this Project shall be not less than the general prevailing rate of per diem wages for work of a similar character in this locality as specified in the schedule of general prevailing rates of per diem wages attached hereto as ATTACHMENT 3. 6.1.1.1.2 Statutory Penalty. Pursuant to Section 2258.023(b) of the Texas Government Code, if the Contractor or any subcontractor violates the requirements of this section the Contractor or subcontractor as the case may be shall pay the City Sixty Dollars ($60.00) for each worker employed for each calendar day or part of the day that the worker is paid less than the stipulated wage rates. 6.1.1.1.3 Wages of construction workers directly employed by the Construction Manager to perform the construction of the Work at the site or, with the Owner's agreement, at off-site workshops. 6.1.1.1.4 Wages or salaries of the Construction Manager's supervisory 64 and administrative personnel when stationed at the site with the Owner's agreement. See attached Position/Rate table No. Description Rate 1 Project Executive $ per hour 2 Project Manager $ per hour 3 Estimator $ ° per hour 4 Safety/Field Operation $ per hour Manager 5 Lead Superintendent $ per hour 6 Assistant Superintendent $ per hour 7 Project Engineer $ per hour 8 Quality Control Inspector $ per hour 9 Contract Administrator $ per hour 10 BIM Coordinator $ per hour 11 IT Coordinator $ per hour 12 Labor Burden 6.1.1.1.5 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. Further, the time for performance does not necessitate overtime work and the City shall not be required to reimburse the "premium time" portion of any overtime payments by Contractor, unless otherwise approved, in writing, in advance by the City. 6.1.1.1.6 Costs paid or incurred by the Construction Manager for taxes, insurance, contributions, assessments and benefits required by law or collective bargaining agreements, and,for personnel not covered by such agreements, customary benefits such as sick leave,medical and health benefits,holidays,vacations and pensions,provided that such costs are based on wages and salaries included in the Cost of the Work under Paragraphs 6.1.1.1.1 through 6.1.1.1.4. 65 6.1.1.1.7 Subcontract Costs. Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the subcontracts. 6.1.1.1.8 Costs of Materials and Equipment Incorporated in the Completed Construction. (a) Costs, including transportation, of materials and equipment incorporated or to be incorporated in the completed construction. (b) Costs of materials described in the preceding Paragraph 6.1.4.(a) 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 City at the completion of the Work or, at the City's option, shall be sold by the Construction Manager; amounts realized, if any, from such sales shall be credited to the City as a deduction from the Cost of the Work. 6.1.1.1.9 Costs of Other Materials and Equipment, Temporary Facilities and Related Items. (a) Costs, including transportation, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, machinery, equipment, and hand tools not customarily owned by the construction workers, which are provided by the Construction Manager at the site and fully consumed in the performance of the Work; and cost less salvage value on such items if not fully consumed, whether sold to others or retained by the Construction Manager. Cost for items previously used by the Construction Manager shall mean fair market value. (b) Rental charges for temporary facilities, machinery, equipment and hand tools not customarily owned by the construction workers, which are provided by the Construction Manager at the site, whether rented from the Construction Manager or others, and costs of transportation, installation, minor repairs and replacements, dismantling and removal thereof. Rates and quantities of equipment rented shall be subject to the City's prior approval. (c) Costs of removal of debris from the site. (d) Reproduction costs, costs of telegrams, facsimile transmissions and long-distance telephone calls, postage and express delivery charges,telephone at the site and reasonable petty cash expenses of the site office. (e) That portion of the reasonable travel and subsistence expenses of the Construction Manager's personnel incurred while traveling in discharge of duties connected with the Work. 66 6.1.1.1.10 Miscellaneous Costs. (a) That portion directly attributable to this Contract of premiums for insurance and bonds. (b) Fees and assessments for the building permit and for other permits, licenses and inspections for which the Construction Manager is required by the Contract Documents to pay. (c) 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 Paragraph 6.1.8. (d) Royalties and license fees paid for the use of a particular design, process or product required by the Contract Documents; the cost of defending suits or claims for infringement of patent or other intellectual property rights arising from such requirement by the Contract Documents; payments made in accordance with legal judgments against the Construction Manager resulting from such suits or claims and payments of settlements made with the City's consent; provided, however, that such costs of legal defenses, judgment and settlements shall not be included in the calculation of the Construction Manager's Fee or the Guaranteed Maximum Price and provided that such royalties, fees and costs are not excluded by the last sentence of Paragraph 1.5.19.1, General Conditions or other provisions of the Contract Documents. (e) Data processing costs related to the Work. (f) Deposits lost for causes other than the Construction Manager's negligence or failure to fulfill a specific responsibility to the City set forth in this Agreement. - 6.1.1.1.11 Other Costs. Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the City. The costs described in Paragraphs 6.1.1.1 through 6.1.1.11 shall be included in the Cost of the Work notwithstanding any provision of General Conditions of the Contract which may require the Construction Manager to pay such costs, unless such costs are excluded by the provisions of Paragraph 6.2. 6.2 Costs Not To Be Reimbursed. 6.2.1.1 The Cost of the Work shall not include: (a) Salaries and other compensation of the Construction Manager's personnel stationed at the Construction Manager's principal office or offices other than the site office, except as specifically provided in Paragraphs 6.1.2.1 and 6.1.2.2. 67 (b) Expenses of the Construction Manager's principal office and offices other than the site office, except as specifically provided in Paragraph 6.1. (c) Overhead and general expenses, except as may be expressly included in Paragraph 6.1. (d) The Construction Manager's capital expenses, including interest on the Construction Manager's capital employed for the Work. (e) Rental costs of machinery and equipment, except as specifically provided in Paragraph 6.1.5(b). (f) Costs due to the negligence of the Construction Manager or to the failure of the Construction Manger to fulfill a specific responsibility to the City set forth in this Agreement. (g) Costs incurred in the performance of Preconstruction Phase Services. (h) Except as provided in Paragraph 6.1.7, any cost not specifically and expressly described in Paragraph 6.1. (i) Costs which would cause the Guaranteed Maximum Price to be exceeded. 6.3 Discounts,Rebates and Refunds. 6.3.1.1 Cash discounts obtained on payments made by the Construction Manager shall accrue to the City if(1) before making the payment, the Construction Manager included them in an Application for Payment and received payment therefor from the City, or(2) the City has deposited funds with the Construction Manager with which to make payments; otherwise, cash discounts shall accrue to the Construction Manager. Trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment shall accrue to the City, and the Construction Manager shall make provisions so that they can be secured. 6.3.1.2 Amounts which accrue to the City in accordance with the provisions of Paragraph 6.3.1 shall be credited to the City as a deduction from the Cost of the Work. 6.4 Accounting Records. 6.4.1.1 The Construction Manager 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 shall be satisfactory to the City. The City and the City's accountants shall be afforded access to the Construction Manager's records, books, correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to this Project, and the Construction Manager shall preserve these for a period of three years after final payment, or for such longer period as may be required by law. SECTION 7 PAYMENT. 68 7.1 Progress Payments. 7.1.1 Based upon Applications for Payment submitted to the Architect by the Construction Manager, in a form acceptable to City and the Architect, and Certificates for Payment issued by the Architect, the City shall make progress payments on account of the Contract Sum to the Construction Manager as provided below and elsewhere in the Contract Documents. 7.1.1.1 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month. 7.1.1.2 Provided an Application for Payment is received by the Architect not later than the 30th day of a month, the City shall make payment to the Construction Manager not later than the 30th day of the following month. If an Application for Payment is received by the Architect after the application date fixed above,payment shall be made by the City not later than thirty(30)days after the Architect receives the Application for Payment. 7.1.1.3 With each Application for Payment, the Construction Manager shall submit payrolls,petty cash accounts, receipted invoices or invoices with check vouchers attached and any other evidence required by the City or Architect to demonstrate that cash disbursements already made by the Construction Manager on account of the Cost of the Work equal or exceed (1)progress payments already received by the Construction Manager;less(2)that portion of those payments attributable to the Construction Manager's Fee; plus (3)payrolls for the period covered by the present Application for Payment. 7.1.1.4 Each Application for Payment shall be based upon the most recent schedule of values submitted by the Construction Manager in accordance with the Contract Documents. The schedule of values shall allocate the entire Guaranteed Maximum Price among the various portions of the Work, except that the Construction Manager'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 City and Architect may require. This schedule,unless objected to by the City or Architect, shall be used as a basis for reviewing the Construction Manager's Applications for Payment. 7.1.1.5 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 Construction Manager on account of that portion of the Work for which the Construction Manager has made or intends to make actual payment prior to the next Application for Payment by (b) the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. 7.1.1.6 Subject to other provisions ofthe Contract Documents,the amount of each progress payment shall be computed as follows: (a) Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Guaranteed Maximum 69 Price allocated to that portion of the Work in the schedule of values. Pending final determination of cost to the City of changes in the Work, amounts not in dispute may be included as provided in Paragraph 1.9.3.7, General Conditions, even though the Guaranteed Maximum Price has not yet been adjusted by Change Order. (b) Add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work or, if approved in advance by the City, suitably stored off the site at a location agreed upon in writing. (c) Add the Construction Manager's Fee, less retainage of: (i) ten percent (10%) where the GMP is less than $400,000; or (ii) five percent (5%) where the GMP is $400,000 or more. The Construction Manager's Fee shall be computed upon the Cost of the Work described in the two preceding Paragraphs at the rate stated in Paragraph 5.1.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Paragraph, shall be an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work in the two preceding Paragraphs bears to a reasonable estimate of the probable Cost of the Work upon its completion. (d) Subtract the aggregate of previous payments made by the City. (e) Subtract the shortfall, if any, indicated by the Construction Manager in the documentation required by Paragraph 7.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the City's accountants in such documentation. (f) Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Paragraph 1.11.5, General Conditions. 7.1.1.7 Except with the City's prior approval, payments to Subcontractors shall be subject to retention of not less than five percent(5%). The City and the Construction Manager shall agree upon a mutually acceptable procedure for review and approval of payments and retention for subcontracts. 7.1.1.8 Except with the City's prior approval,the Construction Manager shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. 7.1.1.9 In taking action on the Construction Manager's Applications for Payment, the Architect shall be entitled to rely on the accuracy and completeness of the information furnished by the Construction Manager and shall not be deemed to represent that the Architect has made a detailed examination, audit or arithmetic verification of the documentation submitted in accordance with Paragraph 7.1.4 or other supporting data, that the Architect has made exhaustive or continuous on-site inspections or that the Architect has made examinations to ascertain how or for what purposes the Construction Manager has used amounts previously paid on account of the Contract. Such examinations, audits and verifications, if required by the City, will be performed by the City's accountants acting in the sole interest of the City. 70 0 7.1.2 Final Payment. 7.1.2.1 Final payment shall be made by the City to the Construction Manager when (1) the Contract has been fully performed by the Construction Manager except for the Construction Manager's responsibility to correct punch list items or nonconforming Work, as provided in Paragraph 1.14.2.2, General Conditions, 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 have been submitted by the Construction Manager and reviewed by the City's accountants; and (3) a final Certificate for Payment has then been issued by the Architect; such final payment shall be made by the City not more than 30 days after the issuance of the Architect's final Certificate for Payment, or as follows: 7.1.2.2 The amount of the final payment shall be calculated as follows: (a) Take the sum of the Cost of the Work substantiated by the Construction Manager's final accounting and the Construction Manager's Fee, but not more than the Guaranteed Maximum Price. (b) Subtract amounts, if any, for which the Architect withholds or the City is entitled to withhold under this Agreement, in whole or in part, a final Certificate for Payment as provided in Paragraph 1.11.5.1, General Conditions or other provisions of the Contract Documents. (c) Subtract the aggregate of previous payments made by the Owner. If the aggregate of previous payments made by the City exceeds the amount due the Construction Manager, the Construction Manager shall reimburse the difference to the City. If the aggregate of previous payments made by the City exceeds the amount due the Construction Manager, the Construction Manager shall reimburse the difference to the City. 7.1.2.3 The City's accountants will review and report in writing on the Construction Manager's final accounting within 30 days after delivery of the final accounting to the Architect by the Construction Manager, together with all backup documentation reasonably required by the City. Based upon such Cost of the Work as the City's accountants report to be substantiated by the Construction Manager's final accounting, and provided the other conditions of Paragraph 7.2.1 have been met,the Architect will,within seven days after receipt of the written report of the Owner's accountants, either issue to the City a final Certificate for Payment with a copy to the Construction Manager or notify the Construction Manager and Owner in writing of the Architect's reasons for withholding a certificate as provided in Paragraph 1.11.5.1, General Conditions. The time periods stated in this Paragraph 7.2 supersede those stated in Paragraph 1.11.4.1, General Conditions. 7.1.2.4 If the City's accountants report the Cost of the Work as substantiated by the Construction Manager's final accounting to be less than claimed by the Construction Manager, the Construction Manager shall be entitled to proceed in accordance with Paragraph 8 without a 71 further decision of the Architect. Unless agreed to otherwise, a demand for mediation of the disputed amount shall be made by the Construction Manager within 30 days after the Construction Manager's receipt of a copy of the Architect's fmal Certificate for Payment. Failure to make such demand within this 30-day period shall result in the substantiated amount reported by the City's accountants becoming binding on the Construction Manager. Pending a final resolution of the disputed amount, the City shall pay the Construction Manager the amount certified in the Architect's fmal Certificate for Payment. 7.1.2.5 If, subsequent to final payment and at the City's request, the Construction Manager incurs costs described in Paragraph 6.1 and not excluded by Paragraph 6.2 (1)to correct nonconforming Work or (2) arising from the resolution of disputes, the City shall reimburse the Construction Manager such costs and the Construction Manager's Fee, if any, related thereto on the same basis as if such costs had been incurred prior to final payment, but not in excess of the Guaranteed Maximum Price. If the Construction Manager has participated in savings,the amount of such savings shall be recalculated and appropriate credit given to the City in determining the net amount to be paid by the City to the Construction Manager. SECTION 8 MISCELLANEOUS PROVISIONS'. 8.1 Dispute Resolution. 8.1.1 During both the Preconstruction and Construction Phases, claims, disputes or other matters in question between the parties to this Agreement shall be resolved as provided in Paragraph 1.6.3., General Conditions, except that, during the Preconstruction Phase, no decision by the Architect shall be a condition precedent to mediation. 8.2 Other Provisions. 8.2.1.1 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 City and the Construction Manager 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 City and Construction Manager. If anything in any document incorporated into this Agreement is inconsistent with this Agreement, this Agreement shall govern. 8.2.1.2 Ownership and Use of Documents. Paragraph 1.3.4, General Conditions, shall apply to both the Preconstruction and Construction Phases. 8.2.1.3 Governing Law. The Contract shall be governed by the laws of the State of Texas. Performance and all matters related thereto shall be in Brazoria County, Texas, United States of America. 8.2.1.4 Assignment. The City and Construction Manager 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 72 legally responsible for all obligations under the Contract. SECTION 9 TERMINATION OR SUSPENSION. 9.1Termination Prior To Establishing Guaranteed Maximum Price. 9.1.1 Prior to execution by both parties of Amendment No. 1 establishing the Guaranteed Maximum Price, the City may terminate this Contract at any time without cause, and the Construction Manager may terminate this Contract for any of the reasons described in Paragraph 1.16.1.1, General Conditions. 9.1.1.1 If the City or Construction Manager terminates this Contract pursuant to Paragraph 9.1 prior to commencement of the Construction Phase, the Construction Manager shall be equitably compensated for Preconstruction Phase Services performed prior to receipt of notice of termination; provided, however, that the compensation for such services shall not exceed the compensation set forth in Paragraph 4.1.1. 9.1.1.2 If the City or Construction Manager terminates this Contract pursuant to Paragraph 9.1 after commencement of the Construction Phase, the Construction Manager shall be paid , in addition to the compensation provided in Paragraph 9.1.2, an amount calculated as follows: (a) Take the Cost of the Work incurred by the Construction Manager. (b) Add the Construction Manager's Fee computed upon the Cost of the Work to the date of termination at the rate stated in Paragraph 5.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Paragraph, an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work at the time of termination bears to a reasonable estimate of the probable Cost of the Work upon its completion. (c) Subtract the aggregate of previous payments made by the City on account of the Construction Phase. The City shall also pay the Construction Manager fair compensation, either by purchase or rental at the election of the City, for any equipment owned by the Construction Manager which the City elects to retain and which is not otherwise included in the Cost of the Work under Paragraph 9.1.3.(a). To the extent that the City elects to take legal assignment of subcontracts and purchase orders (including rental agreements), the Construction Manager shall, as a condition of receiving the payments referred to in Paragraph 9, execute and deliver all such papers and take all such steps, including the legal assignment of such subcontracts and other contractual rights of the Construction Manager, as the City may require for the purpose of fully vesting in the City the rights and benefits of the Construction Manager under such subcontracts or purchase orders. Subcontracts, purchase orders and rental agreements entered into by the Construction Manager with the City's written approval prior to the execution of Amendment No. 1 shall 73 contain provisions permitting assignment to the City as described above. If the City accepts such assignment, the City shall reimburse the Construction Manager with respect to all valid and properly payable costs arising under the subcontract, purchase order or rental agreement except those which would not have been reimbursable as Cost of the Work if the contract had not been terminated. If the City elects not to accept the assignment of any subcontract, purchase order or rental agreement which would have constituted a Cost of the Work had this agreement not been terminated, the Construction Manager shall terminate such subcontract, purchase order or rental agreement and the City shall pay the Construction Manager the costs necessarily and reasonably incurred by the Construction Manager by reason of such termination, but in no event to include any overhead or profit on work not performed. 9.1.2 Termination Subsequent to Establishing Guaranteed Maximum Price. Subsequent to execution by both parties of Amendment No. 1, the Contract may be terminated as provided in Paragraph 1.16, General Conditions. 9.1.2.1 In the event of such termination by the Owner, the amount payable to the Construction Manager pursuant to Paragraph 1.16.1.3, General Conditions shall not exceed the amount the Construction Manager would have been entitled to receive pursuant to Paragraphs 9.1.2 and 9.1.3 of this Agreement. 9.2.2 In the event of such termination by the Construction Manager,the amount to be paid to the Construction Manager under Paragraph 1.16.1.3, General Conditions shall not exceed the amount the Construction Manager would have been entitled to receive under Paragraphs 9.1.2 and 9.1.3 above. In no event shall Construction Manager nor any supplier or subcontractor be entitled to any fee or lost profits for work not performed. 9.3 Suspension. The Work may be suspended by the City as provided in Paragraph 1.16, General Conditions; in such case, the Guaranteed Maximum Price, if established, shall be increased as provided in Paragraph 1.16.3.2, General Conditions, except that the term "cost of performance of the Contract"in that Paragraph shall be understood to mean the Cost of the Work and the term "profit" shall be understood to mean the Construction Manager's Fee as described in Paragraphs 5.1.1 and 5.3.4 of this Agreement. SECTION 10 OTHER CONDITIONS AND SERVICES. 10.1 Construction Manager represents to the City that it has, and will keep in effect at all times during the term of this Contract, any licenses,permits, and approvals which are legally required for the Construction Manager to practice its trade. 10.1.1 Authority to do business. The Construction Manager represents that it has a certificate of authority authorizing it to do business in the State of Texas, a registered agent and registered office during the duration of this Contract. 10.1.2 Authority to Contract. Each party has the full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby represent that they have authorization to sign on behalf of their respective 74 corporations. 10.1.3 Severability. In case any one or more of the provisions contained in this Contract 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 provision herein and this Contract shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. 10.1.4 Presumption Against Waiver. No waiver by either party hereto of any one or more defaults by the other party hereto in the performance of this Contract shall be construed as a waiver of any future defaults whether of a like or different character. 10.1.5 Owner's Reserved Rights. The City shall have the rights by its officers, employees or agents to examine and inspect the Construction Manager's Work at any time to verify Construction Manager's compliance with the terms of this Contract. Any approval by City or acceptance of Construction Manager's Work shall not waive any obligation of Construction Manager to correct defective work. 10.1.6 Benefit. This Contract shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns where permitted by Contract. Nothing in this Paragraph shall be construed to waive the conditions elsewhere contained in this Contract applicable to assignment by the Construction Manager. Nothing contained in this Contract shall be construed to confer any benefit upon any subcontractor or any other third party. 10.1.7 Headings, Gender, Number. The headings are used in this Agreement for convenience and reference purposes only and are not intended to define, limit, or describe the scope or intent of any provision of this Agreement and shall have no meaning or effect upon its interpretation. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa,unless the context requires otherwise. 10.1.8 Agreement Read. The parties acknowledge that they have had opportunity to consult with counsel of their choice, have read, understand and intend to be bound by the terms and conditions of this Agreement. 10.1.9 Liquidated Damages. The amount of liquidated damages for the Construction Manager's failure to meet the deadlines for Substantial and/or Final Completion are fixed and agreed on by the Construction Manager because of the impracticability and extreme difficulty in fixing and ascertaining the actual damages that the City would in such an event sustain. The amounts to be charged are agreed to be damages the City would sustain and shall be retained by the City from current periodic estimates for payment or from final payment. As a result of the difficulty in estimation, calculation and ascertainment of City's damages due to a failure of Construction Manager to achieve timely completion of the Work, if the Construction Manager should neglect, fail, or refuse to either Substantially Complete or Finally Complete the Work within the time herein specified, or any proper extension thereof granted by the City's Representative pursuant to the terms of the Contract Documents,then the Construction Manager does hereby agree as part of the consideration for the awarding of this Agreement that the Owner may permanently withhold from the Construction Manager's total compensation the sum of 75 One Thousand Five Hundred and no /100 DOLLARS ($ 1,500.00) for each and every calendar day that the Construction Manager shall be in default after the time stipulated for Substantial Completion not as a penalty, but as liquidated damages for the breach of this Agreement. It being specifically understood that the assessment of liquidated damages may be made for any failure to meet either or both of the deadlines specified for Substantial Completion and/or Final Completion. 10.1.10Final Completion. Contractor shall achieve Final Completion within 30 calendar days of the date of Substantial Completion, failing which, Contractor shall provide a full time on site superintendent until Final Completion at its own cost and not as a cost of the Work. 10.1.11 Verification No Boycott Israel. To the extent this Contract is considered a contract for goods or services subject to § 2270.002 Texas Government Code, Contractor verifies that it i) does not boycott Israel; and ii) will not boycott Israel during the term of this Contract. List of ATTACHMENTS 1 Owner's Insurance Requirements of Contractor 2 Special Conditions of the Contract 3 Wage Rate finding for Building Construction In Brazoria County 4 Appendix A Title VI Assurances List of Exhibits A Contractor's Insurance Certificates B Performance Bond C Payment Bond CONTRACTOR CITY OF PEARLAND By: By: City Manager Printed Name: Date: Title: Date: APPROVED: APPROVED: Notary City Secretary Date: Date: ATTACHMENT 3 "General Decision Number: TX20190233 07/19/2019 Superseded General Decision Number: TX20180282 State: Texas Construction Type: Building County: Brazoria County in Texas. BUILDING CONSTRUCTION PROJECTS (does not include single family homes or apartments up to and including 4 stories) . Note: Under Executive Order (EO) 13658, an hourly minimum wage of $10. 60 for calendar year 2019 applies to all contracts subject to the Davis-Bacon Act for which the contract is awarded (and any solicitation was issued) on or after January 1, 2015. If this contract is covered by the E0, the contractor must pay all workers in any classification listed on this wage determination at least $10.60 per hour (or the applicable wage rate listed on this wage determination, if it is higher) for all hours spent performing on the contract in calendar year 2019. If this contract is covered by the EO and a classification considered necessary for performance of work on the contract does not appear on this wage determination, the contractor must pay workers in that classification at least the wage rate determined through the conformance process set forth in 29 CFR 5.5 (a) (1) (ii) (or the EO minimum wage rate, if it is higher than the conformed wage rate) . The EO minimum wage rate will be adjusted annually. Please note that this EO applies to the above-mentioned types of contracts entered into by the federal government that are subject to the Davis-Bacon Act itself, but it does not apply to contracts subject only to the Davis-Bacon Related Acts, including those set forth at 29 CFR 5.1 (a) (2)- (60) . Additional information on contractor requirements and worker protections under the EO is available at www.dol.gov/whd/govcontracts. Modification Number Publication Date 0 01/04/2019 1 01/18/2019 2 03/15/2019 3 07/19/2019 * ASBE0022-009 06/01/2019 Rates Fringes ASBESTOS WORKER/HEAT & FROST INSULATOR (Duct, Pipe and Mechanical System Insulation) $ 24.28 14.16 BOIL0074-003 01/01/2017 Rates Fringes BOILERMAKER $ 28.00 22.35 ATTACHMENT 3 CARP0551-009 04/01/2016 Rates Fringes CARPENTER (Excludes Drywall Hanging, Form Work, and Metal Stud 'Installation) $ 23.05 8.78 ELEC0716-005 08/28/2017 Rates Fringes ELECTRICIAN (Excludes Low Voltage Wiring and Installation of Alarms) $ 32.25 9.14 ELEV0031-003 01/01/2019 Rates Fringes ELEVATOR MECHANIC $ 42.60 33.705 FOOTNOTES: A. 6% under 5 years based on regular hourly rate for all hours worked. 8% over 5 years based on regular hourly rate for all hours worked. B. Holidays: New Year's Day; Memorial Day; Independence Day; Labor Day; Thanksgiving Day; Friday after Thanksgiving Day; Christmas Day; and Veterans Day. • ENGI0450-002 04/01/2014 Rates - Fringes POWER EQUIPMENT OPERATOR Cranes. . . . . . . .$ 34.85 9.85 IRON0084-011 06/01/2018 Rates Fringes IRONWORKER, ORNAMENTAL.: . . . -. $ 23.7-7 7.12 IRON0135-002 09/01/2018 Rates Fringes IRONWORKER, STRUCTURAL. . . . . . :, $ 31.85 12.14 PLAS0079-004 01/01/2015 Rates Fringes PLASTERER .$ 19.92 1.00 PLUM0068-002 10/01/2018 Rates Fringes PLUMBER. $ 35. 60 11.04• ATTACHMENT 3 PLUM0211-010 10/01/2018 Rates Fringes PIPEFITTER (Including HVAC Pipe Installation) $ 33.30 12.26 SHEE0054-003 07/01/2017 Rates Fringes SHEET METAL WORKER (Excludes HVAC Duct and Unit Installation) $ 27.72 13.70 SUTX2014-008 07/21/2014 Rates Fringes ACOUSTICAL CEILING MECHANIC $ 16.41 3.98 BRICKLAYER $ 19.86 0.00 CAULKER $ 15.36 0.00 CEMENT MASON/CONCRETE FINISHER $ 13.33 0.00 DRYWALL FINISHER/TAPER $ 16.30 3.71 DRYWALL HANGER AND METAL STUD INSTALLER $ 17.45 3.96 ELECTRICIAN (Alarm Installation Only) $ 17. 97 3.37 ELECTRICIAN (Low Voltage Wiring Only) $ 18.00 1.68 FLOOR LAYER: Carpet $ 20.00 0.00 FORM WORKER $ 12.57 0.00 GLAZIER $ 19.12 4.41 INSULATOR - BATT $ 14.87 0.73 IRONWORKER, REINFORCING $ 12.10 0.00 LABORER: Common or General $ 10.55 0.00 LABORER: Mason Tender - Brick $ 13.37 0.00 LABORER: Mason Tender - Cement/Concrete $ 10.86 0.00 LABORER: Pipelayer $ 12. 94 0.00 LABORER: Roof Tearoff $ 11.28 0.00 LABORER: Landscape and ATTACHMENT 3 Irrigation $ 9.49 0.00 LATHER $ 19.73 0.00 OPERATOR: Backhoe/Excavator/Trackhoe $ 15.56 0.00 OPERATOR: Bobcat/Skid Steer/Skid Loader $ 13.93 0.00 OPERATOR: Bulldozer $ 20.77 0.00 OPERATOR: Drill $ 16.22 0.34 OPERATOR: Forklift $ 15.64 0.00 OPERATOR: Grader/Blade $ 13.37 0.00 OPERATOR: Loader $ 13.55 0. 94 OPERATOR: Mechanic $ 17.52 3.33 OPERATOR: Paver (Asphalt, Aggregate, and Concrete) . . . . . . $ 16.03 0.00 OPERATOR: Roller $ 16.00 0.00 PAINTER (Brush, Roller and Spray) , Excludes Drywall Finishing/Taping $ 16.77 4.51 ROOFER $ 15.40 0.00 .SHEET METAL WORKER (HVAC Duct Installation Only) $ 20.05 4.19 SHEET METAL WORKER (HVAC Unit Installation Only) $ 19. 67 2.24 SPRINKLER FITTER (Fire Sprinklers) . .$ 22.17 9.70 TILE FINISHER $ 12.00 0.00 TILE SETTER $ 16.17 0.00 TRUCK DRIVER: 1/Single Axle Truck $ 14.95 5.23 TRUCK DRIVER: Dump Truck $ 12.39 1.18 TRUCK DRIVER: Flatbed Truck $ 19.65 8.57 TRUCK DRIVER: Semi-Trailer Truck $ 12.50 0.00 TRUCK DRIVER: Water Truck. . . . $ 12.00 4.11 ATTACHMENT 3 WATERPROOFER $ 14.39 0.00 WELDERS - Receive rate prescribed for craft performing operation to which welding is incidental. Note: Executive Order (EO) 13706, Establishing Paid Sick Leave for Federal Contractors applies to all contracts subject to the Davis-Bacon Act for which the contract is awarded (and any solicitation was issued) on or after January 1, 2017. If this contract is covered by the E0, the contractor must provide employees with 1 hour of paid sick leave for every 30 hours they work, up to 56 hours of paid sick leave each year. Employees must be permitted to use paid sick leave for their own illness, injury or other health-related needs, including preventive care; to assist a family member (or person who is like family to the employee) who is ill, injured, or has other health-related needs, including preventive care; or for reasons resulting from, or to assist a family member (or person who is like family to the employee) who is a victim of, domestic violence, sexual assault, or stalking. Additional information on contractor requirements and worker protections under the EO is available at www.dol.gov/whd/govcontracts. Unlisted classifications needed for work not included within the scope of the classifications listed may be added after award only as provided in the labor standards contract clauses (29CFR 5.5 (a) (1) (ii) ) . The body of each wage determination lists the classification and wage rates that have been found to be prevailing for the cited type (s) of construction in the area covered by the wage determination. The classifications are listed in alphabetical order of ""identifiers"" that indicate whether the particular rate is a union rate (current union negotiated rate for local) , a survey rate (weighted average rate) or a union average rate (weighted union average rate) . Union Rate Identifiers A four letter classification abbreviation identifier enclosed in dotted lines beginning with characters other than ""SU"" or ""UAVG"" denotes that the union classification and rate were prevailing for that classification in the survey. Example: PLUM0198-005 07/01/2014 . PLUM is an abbreviation identifier of the union which prevailed in the survey for this classification, which in this example would be Plumbers. 0198 indicates the local union number or district council number where applicable, i.e. , Plumbers Local 0198. The next number, 005 in the example, is an internal number used in processing the wage determination. 07/01/2014 is the effective date of the most current negotiated rate, which in this example is July 1, 2014. Union prevailing wage rates are updated to reflect all rate changes in the collective bargaining agreement (CBA) governing this classification and rate. Survey Rate Identifiers Classifications listed under the ""SU"" identifier indicate that no one rate prevailed for this classification in the survey and the published rate is derived by computing a weighted average rate based on all the rates reported in the survey for that classification. As this weighted average rate ATTACHMENT 3 includes all rates reported in the survey, it may include both union and non- union rates. Example: SULA2012-007 5/13/2014. SU indicates the rates are survey rates based on a weighted average calculation of rates and are not majority rates. LA indicates the State of Louisiana. 2012 is the year of survey on which these classifications and rates are based. The next number, 007 in the example, is an internal number used in producing the wage determination. 5/13/2014 indicates the survey completion date for the classifications and rates under that identifier. Survey wage rates are not updated and remain in effect until a new survey is conducted. Union Average Rate Identifiers Classification(s) listed under the UAVG identifier indicate that no single majority rate prevailed for those classifications; however, 100% of the data reported for the classifications was union data. EXAMPLE: UAVG-OH-0010 08/29/2014. UAVG indicates that the rate is a weighted union average rate. OH indicates the state. The next number, 0010 in the example, is an internal number used in producing the wage determination. 08/29/2014 indicates the survey completion date for the classifications and rates under that identifier. A UAVG rate will be updated once a year, usually in January of each year, to reflect a weighted average of the current negotiated/CBA rate of the union locals from which the rate is based. WAGE DETERMINATION APPEALS PROCESS 1.) Has there been an initial decision in the matter? This can be: * an existing published wage determination * a survey underlying a wage determination * a Wage and Hour Division letter setting forth a position on a wage determination matter * a conformance (additional classification and rate) ruling On survey related matters, initial contact, including requests for summaries of surveys, should be with the Wage and Hour Regional Office for the area in which the survey was conducted because those Regional Offices have responsibility for the Davis-Bacon survey program. If the response from this initial contact is not satisfactory, then the process described in 2. ) and 3.) should be followed. With regard to any other matter not yet ripe for the formal process described here, initial contact should be with the Branch of Construction Wage Determinations. Write to: Branch of Construction Wage Determinations Wage and Hour Division U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 ATTACHMENT 3 2. ) If the answer to the question in 1.) is yes, then an interested party (those affected by the action) can request review and reconsideration from the Wage and Hour Administrator (See 29 CFR Part 1.8 and 29 CFR Part 7) . Write to: Wage and. Hour Administrator U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 The request should be accompanied by a full statement of the interested party's position and by any information (wage payment data, project description, area practice material, etc.) that the requestor considers relevant to the issue. 3. ) If the decision of the Administrator is not favorable, an interested party may appeal directly to the Administrative Review Board (formerly the Wage Appeals Board) . Write to: Administrative Review Board U.B. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 4. ) All decisions by the Administrative Review Board are final. END OF GENERAL DECISION SpawGlass Financial Statement SpawGlass Construction Corp. is a wholly-owned subsidiary of SpawGlass Holding, L.P. As such, the financial position of SpawGlass Construction Corp. is represented in the enclosed consolidated financial statement of SpawGlass Holding, L.P. and Subsidiaries. This financial statement is provided on a "strictly confidential" basis. We request that no copies be made or distributed without the written consent of SpawGlass Construction Corp. and/or SpawGlass Holding, L.P. Confidential SpawGlass Holding LP and Subsidiaries Consolidated Financial Report December 31, 2018 THE POWER OF BEING UNDERSTOOD RSM AULI1 1AX I CONSULTING Confidential Contents Independent auditor's report 1-2 Financial statements Consolidated balance sheets 3 Consolidated statements of income 4 Consolidated statements of changes in partners equity 5 Consolidated statements of cash flows 6 Notes to consolidated financial statements 7.17 Confidential MI RSM RSM US LIP Independent Auditor's Report To the Partners SpawGlass Holding LP and Subsidiaries Report on the Financial Statements We have audited the accompanying consolidated financial statements of SpawGlass Holding LP and Subsidiaries,which comprise the consolidated balance sheets as of December 31, 2018 and 2017; the related consolidated statements of income, changes in partner's equity,and cash flows for the years then ended; and the related notes to the consolidated financial statements(collectively, the financial statements). Management's Responsibility for the Financial Statements Management is responsible for the preparation and fair presentation of these financial statements in accordance with accounting principles generally accepted in the United States of America this includes the design, implementation and maintenance of internal control relevant to the preparation and fair presentation of the financial statements that are free from material misstatement, whether due to fraud or error. Auditor's Responsibility Our responsibility is to express an opinion on these financial statements based on our audits.We conducted our audits in accordance with auditing standards generally accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free from material misstatement. An audit involves performing procedures to obtain audit evidence about the amounts and disclosures in the financial statements. The procedures selected depend on the auditors judgment, including the assessment of the risks of material misstatement of the financial statements, whether due to fraud or error In making those risk assessments, the auditor considers internal control relevant to the entity's preparation and fair presentation of the financial statements in order to design audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the entity's internal control. Accordingly,we express no such opinion.An audit also includes evaluating the appropriateness of accounting policies used and the reasonableness of significant accounting estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that the audit evidence we have obtained is sufficient and appropriate to provide a basis for our audit opinion. THE POWER OF BEING UNDERSTOOD AUDIT 1AX CONSULTING 1 Confidential Opinion In our opinion, the financial statements referred to above present fairy, i,-i all material respects,the financial position of SpawGlass Holding LP and Subsidiaries as of December 31,2018 and 2017, and the results of their operations and their cash flows for the years then ended in accordance with accounting principles general y accepted in the United States of America. S01I US LLP San Antonio,Texas February 28, 2019 2 Confidential SpawGlass Holding LP and Subsidiaries Consolidated Balance Sheets December 31, 2018 and 2017 2018 2017 Assets Current assets Cash and cash eq.rivalents 5 45,370,225 S 38,768,151 Investments in trading securit es 13,992,623 16.641,014 Receivables: Trade 84,770,692 92,976,962 Retainage 32,074,666 21,954.927 Other 1,952,076 2,171,060 Unbdled contract costs and accrued estimated earrings 8,848,126 4.056,792 Prepaid expenses and other assets 767,490 544,551 Total current assets 187,775,898 177,113.457 Properly and equipment,net 16,452,387 11,726.771 Other assets Other assets 1,607,578 1.431,000 Retainage receivable—long-:erm portion 5,185,224 2.893,289 Cash surrender value of li`e insuranne 581,129 589,476 Deferred income taxes 2,050,000 2,337,000 Total other assets 9,423,931 7.250.765 Total assets $ 213,652,216 S 196.090,993 Liabilities and Partner's Equity Current liabilities: Payables: Trade 5 82,130,347 S 68,697,376 Retainage 24,738,338 18,764,314 Related party,net 1,642,662 3,208,706 Current matunties of long-term debt 533,765 105,495 Income taxes payable 744,000 1,087,600 Unearned revenue and ustcrreradvances 23,816,668 18.615.029 Accrued liabilities 20,957,192 19.739 172 Total current liabilities 154,462,972 150,217,692 Long-term liabilities: Long-term debt,less current matur.lies 2,073,954 467.478 Accrued liabilities—long-term portion 11,031,534 10,133,851 Retainage payable—long-teem portion 3,541,571 2,066,957 Total long-term liabilities 16,647,059 12,668,286 Total liabilities 171,110,031 162,885,978 Partner's equity 42,542,185 33,205.015 Total liabilities and partner's equity 5 213,652,216 5 196,0S0.993 See notes to consolidated financial statements. 3 Confidential SpawGlass Holding LP and Subsidiaries Consolidated Statements of Income Years Ended December 31, 2018 and 2017 2018 2017 Construction revenue $ 605,590,881 $ 521,056,709 Cost of construction 572,043,623 491,779,612 Gross margin 33,547,258 29,277,097 Operating expenses 21,993,838 19,051,876 Operating income 11,553,420 10,225,221 Other income, net 459,122 360,280 Income before income tax expense 12,012,542 10,585,501 Income tax expense: Current 2,388,372 2,985,350 Deferred 287,000 1,948,000 2,675,372 4,933,350 Net income $ 9,337,170 $ 5,652,151 See notes to consolidated financia' statements. 4 Confidential SpawGlass Holding LP and Subsidiaries Consolidated Statements of Changes in Partner's Equity Years Ended December 31, 2018 and 2017 Balance at December 31, 2016 $ 29,916,372 Distributions (2,363,508) Net income 5,652.151 Balance at December 31,2017 33,205,015 Net income 9,337,170 Balance at December 31,2018 $ 42,542,185 See notes to consolidated financial statements. 5 Confidential SpewGlass Holding LP and Subsidiaries Consolidated Statements of Cash Flows Years Ended December 31, 2018 and 2017 2018 2017 Cash flows from operating activities: Net income $ 9,337,170 S 5,652,151 Adjustments to reconcile net income to net cash provided by operating activities: Depreciation and amortization 2,441,001 1,430.071 Gain on disposal o'equipment (64,477) (9,771) Deferred income tax expense 287,000 1,948,000 Purchase of trading securities - (1,403,943) Proceeds from sales and maturities of trading securities 2,648,391 4,273,181 Earnings on cash surrender value of life insurance 8,347 (66,685) Changes in operating assets and liabilities: Receivables (3;986,420) (28,252,910) Related-party payable, net (1,666,044) 603,188 Unbilled contract costs and accrued estimated earnings (4,791,334) 392,324 Prepaid expenses and other assets (222,939) (59,217) Payables—trade and retainage 881,609 20,038,828 Income taxes payable (343,600) (654,700) Unearned revenue anc customer advances 5,201,639 2,337,613 Accrued liabilities 2,115,703 5,422,235 Net cash provided by operating activities 11,846,046 11,650,365 Cash flows from investing activities: Capital expenditures (7,177,502) (5,468,885) Proceeds from disposition of property and equipment 75,362 - Investment in other assets (176,578) 317,080 Liquidation of cash surrender value of life insurance - 154,699 Net cash used in Investing activities (7,278,718) (4,997,106) Cash flows from financing activities: Proceeds from long-term debt 2,310,722 576,554 Principal payments on long-term debt (275,976) (84,177) Distributions - (2,363,508) Net cash provided by (used in)financing activities 2,034,746 (1,871.131) Net increase in cash and cash equivalents 6,602,074 4,782,128 Cash and cash equivalents al beginning of year 38,768,151 33,986,023 Cash and cash equivalents at end of year $ 45,370,225 $ 38,768,151 Supplemental disclosu-es of cash flcw information: Cash paid for income taxes $ 2,731,972 $ 1,891,000 See notes to consolidated financial statements. 6 Confidential SpawGlass Holding LP and Subsidiaries Notes to Consolidated Financial Statements Note 1. Summary of Significant Accounting Policies Reporting entity and nature of operations: The accompanying consolidated financial statements include the accounts cf SpawGlass Holding LP(a Texas limited partnership)and its wholly owned subsidiaries, SpawGlass, Inc ; SpawGlass Construction Corporation; SpawGlass Civil Construction, Inc.; SpawGlass Contractors, Inc.; SG Administration, LP; SG Real Estate, LP; SPI Construction, LLC; SPI Construction II, LLC; Sustainable Construction Solutions, LLC and Westland Equipment& Supplies, LLC (collectively,the Partnership). All significant interpartnership transactions have been eliminated. SpawGlass Holding LP is a wholly owned subsidiary of SpawGlass Employee Holding Co. (the Parent Corporation). The Partnership derives substantially all its revenue as a general contactor for both private and governmental enterprises. The Partnership's primary construction market is in Texas, and a substantial portion of the Partnership's receivables are from customers located in this area. The Partnership does, however, at times perform work in other parts of the United States for select customers. Use of estimates: The preparation of financial statements in accordance with accounting principles generally accepted in the United States of America (U.S, GAAP) requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period.Actual results could differ from those estimates. Significant estimates inherent in the accompanying consolidated financial statements .nclude estimated costs on incomplete ccntracts related to unbilled contract costs and accrued estimated earnings, warranty accruals and insurance accruals. Recent accounting pronouncements: In August 2016,the Financial Accounting Standards Board (FASB) issued Accounting Standards Update (ASU)No. 2016-15, Statement of Cash Flows(Topic 230): Classification of Certain Cash Receipts and Cash Payments(a consensus of the Emerging Issues Task Force). ASU No. 2016-15 provides guidance on how certain cash receipts and cash payments should be presented and classified in the statement of cash flows with the objective of reducing existing diversity in practice with respect to these items, ASU No.2016-15 will be effective for the Partnership on January 1, 2010. Early adoption is permitted. ASU No. 2016-15 requires a retrospective transition method. However, if it is impracticable to apply the amendments retrospectively for some of the issues,the amendments for those issues would be applied prospectively as of the earliest date practicable. The Partnership is currently evaluating the impact tie adoption of this guidance veil' have on its consolidated statement of cash flows. In February 2016, the FASB issued ASU No. 2016-02, Leases(Topic 842). The guidance in this ASU supersedes the leasing guidance in Topic 840, Leases. Under the new guicance, lessees are required to recognize lease assets and lease liabilities on the balance sheet for a l leases with terms longer than 12 months. Leases will be dassifiec as either finance or operating,with classification affecting the pattern of expense recognition in the income statement. In January 2018,the FASB issued ASU No. 2018-01, Leases(Topic 842):Land Easement Practical Expedient for Transition to Topic 642,which amends the new lease guidance to add an optional transition practical expedient that permits an entity to continue applying its current accounting policy for land easements that exist or expire before the ASU Topic 842 effective date. In July 2018, the FASB issued ASU No. 2018-10, Codification Improvements to Topic 842, Leases, which makes narrow scope improvements to the standard for specific issues. In July 2018, the FASB also issued ASU No, 2018-11, Leases (Topic 842): Targeted Improvements,which provides an optional transition method, allow ng the standard to be applied at the adoption date. 7 Confidential SpewGlass Holding LP and Subsidiaries Notes to Consolidated Financial Statements Note 1. Summary of Significant Accounting Policies (Continued) A modified retrospective transition approach is required. The new standard provides a number of practical expedients. Upon adoption,the Partnership expects to elect all the practical expedients available, The Partnership is currently evaluating the impact of its pending adoption of the new standard on its consolidated finarcial statements. In May 2014, the FASB issued ASU No. 2014-09, Revenue from Contracts with Customers(Topic 606), to supersede ready all existing revenue recognition guidance under U.S. GAAP. The core principle of ASU No. 2014-09 is to recognize revenues when promised goods or services are transferred to customers in an amount that reflects the consideration to which an entity is expected to be entitled for those goods or services.ASU No. 2014-09 defines a five-step process to achieve this core principle and, in doing so, more judgment and estimates may be requirec within the revenue recognition process than required under existing U.S. GAAP, including identifying performance obligations in the contract, estimating the amount of variable consideration to include in the transaction price and allocating the transaction price to each performance obligation. Management is utilizing a comprehensive approach to assess the impact of the guidance on each of the Partnership's revenue streams, including assessment of its performance obligations, principal versus agent considerations and variable consideration. Additionally, the Partnership is evaluating the impact of the new guidance on disclosures, as well as the impact on controls tc support the recognition. The Partnership has not yet selected a transition method and is currently evaluating the impact of the pending adoption of ASU No. 2014-09 on its consolidated financial statements. Cash equivalents: Cash equivalents for purposes of the consolidated statements of cash flows are highly liquid debt instruments with a maturity of three months cr less and certificates of deposit with maturities of one year or less. The Partnership maintains Its cash 'n bank deposit accounts that,at times, may exceed federally insured limits. The Partnership also maintains money market accounts hat are insured by the Securities Investment Protection Corporation. Some account balances exceeded maximum insurance limits. Accounts are guaranteed by the Federal Deposit Insurance Corporation up b a maximum of$250,000 The Partnership has rot experienced any losses in such accounts. Investments: The Partnership determines the appropriate classification of.ts investments in debt and equity securities at the time of purchase and re-evaluates such determinations at each balance sheet date. Debt securities are classified as held-to-maturity when the Partnership has the positive intent and ability to hold the securities to maturity. Securities held to maturity are recorded on the consolidated balance sheets as either short-term or long-term based on contractual maturity date and are stated at amortized cost. Marketable securities that are bought and held principally for the purpose of selling them in the near term are classified as trading securities and are reported at fair value,with unrealized gains and losses recognized in earnings. Debt and marketable equity securities not classified as held-to- maturity or as trading are classified as available-for-sale. and are carried at fair market value, with the unrealized gains and losses, ret of tax, included in the determination of comprehensive income and reported in partner's equity. The fair value of substantially all securities is determined by quoted market prices. The estimated fair value of securities 'or which there are no quoted market prices is based on similar types of securities that are traded in the market. 8 Confidential SpewGlass Holding LP and Subsidiaries Notes to Consolidated Financial Statements Note 1. Summary of Significant Accounting Policies(Continued) Trade accounts receivable: The allowance for doubtful accounts is established as losses are estimated to have occurred through a provision for bad debts charged to earnings. Losses are charged against the allowance when management believes the uncollectibility of a receivable is confirmed. Subsequent recoveries, if any, are credited to the allowance. The allowance for doubtful accounts is evaluated on a regular basis by management and is based on historical experience and specifically identified questionable receivables. The evaluation is inherently subjective, as it requi•es estimates that are susceptible to significant revision as more information becomes available. At December 31, 2018 and 2017. no specific allowance for futu-e bad debts has been established, as management estimates that management reserves provide adequate coverage for any unidentified bad debts. See Note 7. Depreciation and amortization: Property and equipment are stated at cost. Depreciation and amortization on assets other than land are calculated on the straight-line method based on the following estimated useful lives: buildings and building improvements-15 to 39 years; machinery and equipment- 1 to 7 years and furniture,fixtures, hardware and software-5 to 10 years. Impairment of long-lived assets:The Partnership reviews the carrying value of property and equipment for impairment whenever events and circumstances indicate the carrying value of an asset may not be recoverable from the estimated future cash flows expected to result from its use and eventual disposition. In cases where undiscounted expected future cash flows are less than the carrying value, an impairment loss is recognized equal to an amount by which the carrying value exceeds the fair value of the assets. The factors considered by management in performing this assessment include current operating results; trends and prospects; and the elects of obsolescence, demand,competiticr and other economic factors The Partnership did not recognize an impairment loss during the years ended December 31, 2018 and 2017. Revenue and cost recognition: Construction and related services: Revenues from fixed-fee and modified fixed-price contracts are recognized on the percentage-of-completion method, measured by the cost-to-test method. This method is used because management considers costs incurred to date to be the best available means of progress on these contracts. Revenues from cost-plus fee contracts and time-and-charge contracts are recognized on the basis of actual costs incurred during the period plus the fee earned Contract costs include all direct material and labor costs and these indirect costs related to contract performance, such as indirect labor, supplies, tools, repairs and depreciation. General and administrative costs are charged to expense as incurred. Provisions for estimated losses on incomplete contracts are made in the period in which such losses are determined. Changes in jot:performance,job conditions and estimated profitability, including those arising from contract peralty provisions and final contract settlements, may result in revisions to costs and income and are recognized in the period in which the revisions are determined. The Partnership believes that its estimates of the percentage of completion and earnings or losses on contracts are reasonable; however, due to the nature of the contracting business and the type of contracts, the current estimates of the percentage of completion and earnings or losses on contracts may differ materially from the ultimate results upon completion of the contracts. 9 Confidential SpewGlass Holding LP and Subsidiaries Notes to Consolidated Financial Statements Note 1. Summary of Significant Accounting Policies (Continued) Some contracts.nave certain milestone due dates that must be met or the Partnership could be subject to penalties for liquidated damages if claims are asserted by the customer and the Partnership is responsible for the delays. These contractual requirements generally relate to specified activities that must occur for a project by a specified date. Each contract defines the conditions under which a customer may make a claim against the Partnership for such damages. Profit incentives are included in revenues when their realization is reasonably assured. An amount equal to contract costs attributable to claims is included in revenues when realization is probable and the amount can be reliably estimated. The asset, unbilled contract costs and accrued estimated earrings, represents revenues recognized in excess of amounts billed on incomplete contracts, The liability, unearned revenue and customer advances, represents billings in excess of revenues recognized on incomplete contracts. Income from the rental of equipment is recognized when rental service has been rendered. Revenue from the sale of equipment is recognized when equipment has been delivered. Other revenue: Revenue from other services is recognized as such services are provided. Income taxes: The Partnership files a consolidated C corporation federal income tax return with the Parent Company. Federal income taxes are fully apportioned to the Partnership by the Parent Company. Tax benefits of losses and deductible temporary differences are recognized by the corporate companies to the extent such benefits can be realized through the consolidated federal income tax return. Deferred income taxes are provided for federal income tax and the income tax component of state tax for temporary differences in reporting income and expenses for financial statement and tax purposes arising from differences in the methods of accounting for depreciation and various accrued liabilities. Depreciation expense is computed for tax purposes on accelerated methcds and on the straight-line method for financial statement purposes.Accrued warranty, uninsured loss contingency, legal and certain other reserves are deducted when paid for tax purposes and when expenses are incurred for financial statement purposes. In accordance with the FASB Accounting Standards Codification(ASC) Topic 740, management evaluated the Partnership's tax positions and concluded the Partnership has taken no uncertain tax positions that require adjustment to the consolidated financial statements. On December 22. 2017, the president of the United States signed into law the Tax Cuts and Jobs Act (TCJA)tax reform legislation. This legislation makes significant changes in the United States tax law, including numerous changes to individual tax rules,a reduction in the corporate tax rates, changes to net operating loss carryforwards and carrybacks, and a repeal of the corporate alternative minimum tax. The legislation reduced the United States corporate tax rate from the current rate of 35 percent to 21 percent. As a result of the enacted law,the Partnership was required to revalue deferred tax assets and liabilities at the enacted rate at the effective date of the TCJA. This revaluation resulted in an increase of $1,419,000 to income tax expense in continuing operations and a corresponding reduction in the deferred tax asset in 2017. The other provisions of the TCJA did not have a material impact on the consolidated financial statements. The Partnership is subject to the Texas gross margin tax. 10 Confidential SpawGlass Holding LP and Subsidiaries Notes to Consolidated Financial Statements Note 1. Summary of Significant Accounting Policies (Continued) Contingencies: Certain conditions may exist as of the date the consolidated financial statements are issued, which may result in a loss to the Partnership, but which will only be resolved when one or more future events occur or fail to occur. The Partnership's management and its legal counsel assess such contingent liabilities, and such assessment inherently involves an exercise of judgment. In assessing loss contingencies related to legal proceedings that are pending against the Partnership or unasserted claims that may result in such proceedings, the Partnership's legal counsel evaluates the perceived merits of any legal proceedings or unasserted claims, as well as the perceived menus of the amount of relief sought or expected to be sought herein. If the assessment of a contingency indicates it is probable that a material loss has been incurred and the amount of the liability can be estimated, then the estimated liability would be accrued in the Partnership's consolidated financial statements, If the assessment indicates that a potential material loss contingency is not probable, but is reasonably possible,or is probable, but cannot be estimated, then the nature of the contingent liablity together with an estimate of the range of possible loss if determinable and material, would be disclosed, Loss contingencies considered remote are generally not disclosed unless they involve guarantees, in which case the guarantees wou'd be disclosed Advertising:Advertising costs are expensed as incurred. Subsequent events: The Partnership has evaluated subsequent events through February 28, 2019,the date the consolidated financial statements were available to be issued Note 2. Fair Value Measurements and Disclosures The requirements of Fair Value Measurements and Disclosures of the ASC apply to all financial instruments and all nonfinancial assets and nonfinancial liabilit es that are being measured and reported on a fair value basis. Fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. Fair Value Measurements and Disclosures also establishes a fair va ue hierarchy that prioritizes the inputs used in valuation methodologies into the following three levels. Level 1: Inputs are unadjusted quoted prices in active markets for identical assets or liabilities. Level 2: Inputs are observable, other than Level 1 prices, such as quoted prices for similar assets or liabilities or other inputs that can be corroborated by observable market data for substantially the full term of the assets or liabilities. Level 3: Inputs are unobservable, are supported by little or no market activity and are significant to the fair value of the assets or liabilities. Level 3 assets and liabilities include financial instruments whose value is determined using pric ng models, discounted cash flow methcdologies or other valuation techniques, as well as instruments for which the determination of fair value requires significant management judgment or estimation. A description of the valuation methodologies used for instruments measured at fair value, as well as the general classification of such instruments pursuant to the valuation hierarchy, is set forth on the following page. 11 Confidential SpawGlass Holding LP and Subsidiaries Notes to Consolidated Financial Statements Note 2. Fair Value Measurements and Disclosures (Continued) The following table presents assets measured at fair value on a recurring basis as reported on the consolidated balance sheets as of December 31, 2018 and 2017, and by level within the fair value measurement hierarchy: Fair Value Measurement at December 31, 2018 Level 1 Level 2 Level 3 Total Measured on a recurring basis: Assets—tradina securities $ - $ 13 992,623 $ - $ 13.992,623 Fair Value Measurement at December 31, 2017 Level 1 Level 2 Level 3 Total Measured on a recurring basis: Assets—trading securities $ - $ 16,641,014 $ - 5 16.641.014 Trading securities are classified within Level 2 of the valuation hierarchy. The Partnership obtains fair value measurements from reputable pricing services. The fair value measurements consider observable data that may include dealer quotes, market spreads, cash flows,the Un ted States Treasury yield curve, live trading levels, trade execution data, market consensus prepayment speeds, credit information,the bond's terms and conditions and other such data Note 3. Costs and Estimated Earnings on Incomplete Contracts and Backlog Costs and estimated earnings on incomplete contracts and backlog information are as follows: December 31 2018 2017 Amended contract amount $ 1,402,835,586 $ 1,172,552,035 Revenue recognized to date 792,613,843 702,448,756 Unearned contract amount—backlog $ 610,221,743 $ 470,103,279 Cost to date $ 763,722,557 $ 674,197,986 Estimated cost tc complete 586,402,827 453.302,359 Estimated total cost S 1 350.125,384 S 1,127,500,345 Billings to date $ 807,582,385 $ 717.006,993 Unbilled contract costs and accrued estimated earnings $ 8,848,126 $ 4,056,792 Unearned revenue and customer advances $ 23.816,668 $ 18,615.029 The above amounts include interpartnership contracts,which are eliminated at the consolidated level. The Partnership has construction management(cost-plus)contracts, which may be subject to audit upon completion of the project. 12 Confidential SpawGlass Holding LP and Subsidiaries Notes to Consolidated Financial Statements Note 3. Costs and Estimated Earnings on Incomplete Contracts and Backlog (Continued) The Partnership records estimated losses on incomplete contracts in the period in which such losses are determined. The provision for losses on contracts totaled approximately $50,000 and$22,000 as of December 31, 2018 and 2017, respectively. Note 4. Other Receivables Other receivables consist cf the following. December 31 2018 2017 Surety receivable $ 1,748,389 $ 1,942,452 Interest receivable 198,066 221,167 Miscellaneous receivables 5,621 7,441 $ 1,952,076 $ 2,171,060 Note 5. Property and Equipment Property and equipment consist of the following: December 31 2018 2017 Land $ 1,258,611 $ 1,258,611 Buildings and building improvements 6,916,822 6,043,916 Machinery and equipment 14,204,492 12,047,321 Furniture, fixtures, hardware and software 4,442,441 4,720,225 Construction,n progress 1,040,368 220,228 27,862,734 24,290,301 Less accumulated depredation and amortization 11,410,347 12,563,530 $ 16,452,387 $ 11,726,771 Note 6. Depreciation and Amortization Depreciation and amortization expense by major asset classification is sLmmarized below Years Ended December 31 2018 2017 Buildings and building improvements $ 201,884 $ 169,805 Machinery and equipment 2,198,355 1,223,900 Furniture, fixtures, hardware and software 40,762 36,366 $ 2,441,001 $ 1,430,071 13 Confidential SpawGlass Holding LP and Subsidiaries Notes to Consolidated Financial Statements Note 7. Accrued Liabilities Accrued liabilities consist of the following: December 31 2018 2017 Warranty and management reserves $ 7,588,916 $ 6,419,890 Job costs 3.792.504 4,872,254 Payroll expenses 8,009.960 7.697,015 Other liabilities 4,910.402 3,990,372 Uninsured loss contingency 6,595,263 6,233,666 Taxes—property and sales 1,091,681 659,826 31.988,726 29,873,023 Less long-term portion 11.031,534 10,133,851 $ 20.957,192 $ 19,739,172 Note 8. Debt The Partnership has a bank line of credit of$5,000,000 at Frost Bank, wit.n an interest rate at prime plus 0.75 percent,which matures on September 20, 2020. The note agreement is unsecured, The note agreement with the bank requires the Partnership to maintain certain financial ratios and other covenants. There were no balances outstanding on this line of credit at December 31 2018 and 2017. Frost Bank also provides equipment financing to the Partnership, as noted below. The Partnership also rias a $2,000,000 line of credit at JPMorgan Chase Bank,with interest payable monthly at the bank's floating rate, defined as the greater of prime or the adjusted one-month LIBOR, which matures on September 30, 2019. The note agreement is unsecurec. The note agreement with the bank requires the Partnership to maintain certain financial ratios and other covenants. There were no balances outstanding on this line of credit at December 31, 2018 and 2017. Long-term debt consists of the following: December 31 2018 2017 Note payable to a bank in monthly installments of 34,330, including interest at 4.5%;due in 2022; collateralized by machinery $ 186,066 $ 228,540 Note payable to a bank in monthly .nstallments of$6,442, including interest at 4 6%; due in 2022: collateralized by machinery 281,402 344,433 Note payable to a bank in months'installments of$9,513, including interest at 5.3%; due in 2023; collateralized by machinery 440,751 - Note payable to a bank in monthly installments of$15,161.including interest at 5.2%;cue in 2023;collateralized by machinery 702,078 Note payable to a bank in monthly installments of 319,424, including interest at 5.6`%0;due in 2023; collateralized by machinery 997,422 - 2.607,719 572,973 Less current maturities 533.765 105,495 S 2 073,954 $ 467,478 14 Confidential SpawGlass Holding LP and Subsidiaries Notes to Consolidated Financial Statements Note 8. Debt(Continued) Aggregate maturities required on long-term debt at December 31,2018, are as follows: Years ending December 31: 2019 $ 533,765 2020 562,221 2021 592,202 2022 618,211 2023 301,320 $ 2,607,719 Interest paid totaled approximately 370,000 for the year ended December 31, 2018 (approximately $1,000 in 2017). Note 9. Leases The Partnership leases facilities and equipment pursuant to a noncancelable operating lease agreements expiring through 2021. Rental expense totaled approximately 5919 000 and$246.000 for the years ended December 31, 2018 and 2017. respectively Future minimum lease payments under these noncancelable operating leases as of December 31, 2018, are as follows: Years ending December 31: 2019 S 914,510 2020 727,074 2021 85,886 $ 1,727,470 Note 10. Income Taxes and Deferred Income Taxes The provision for taxes on income consists of and represents the tax effect of the following: Years Ended December 31 2018 2017 Current expense: Federal $ 2,144,551 $ 2,764,000 State 243,821 221,350 Deferred expense: Federal 287,000 1,948,000 5 2,675,372 $ 4,933,350 Income tax expense differs from the amount which would be provided by applying the statutory federal income tax rates because of state income taxes and permanent differences and the effects of the TCJA. 15 Confidential SpewGlass Holding LP and Subsidiaries Notes to Consolidated Financial Statements Note 10. Income Taxes and Deferred Income Taxes (Continued) In assessing the realizability of deferred tax assets, management considers whether it is more likely than not that some portion or all the deferred tax assets will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences become deductible. Management considers the scheduled reversal of deferred tax Inabilities, projected future taxable income and tax planning strategies in making this assessment. Based upon the level of historical taxable income and project ons for future taxable income over the periods in which the deferred tax assets are deductible, management believes it is more likely than not that the Partnership ,vill realize the benefits of these deductible differences at December 31, 2018 and 2017. The Partnership files a United States federal income tax return, in conjunction with the Parent Corporation, as well as income tax returns in various states and foreign jurisdictions. Note 11. Commitments and Contingent Liabilities The Partnership is involved in various contract claims and litigation in the normal course of business. Management believes the amcunts included in accrued liabilities, plus applicable insurance coverage, are adequate to cover costs of settlement, if any, and defense of such claims and litigation. Note 12. Employees'401(k) Plan The Partnership has a 401(k) plan that covers substantially all employees, except leased employees, who have completed six months of service. Partnership contributions to the plan are discretionary. Contributions to the 401(k) plan for the year ended December 31, 2018, totaled approximately $2.855,000 (approximately$2.376,000 in 2017). Note 13. Insurance The Partnership provides heath insurance benefits for its employees. Under this policy,the Partnership is self-insured for the payment of claims up to$135,000 per person, per year, for covered medical expenses. Payments for these claims are made from the general assets of the Partnership (see Note 7). Operations are charged with the cost of claims reported and an estimate of claims incurred, but not reported. A liability for unpaid claims and the associated claim expenses, including incurred, but not reported losses, is reflected in the consolidated balance sheets as an accrued liability. For the year ended December 31,2018, the total expense under the program was approximately$6,082,000 (approximately $5,379.000 in 2017), and at December 31, 2018, the self-insured claims liability accrued in the accompanying consolidated financial statements was approximately$949,000 (approximately S1,316,000 in 2017). The plan also has an aggregate stop-loss based on expected claims plus 25 percent. The Partnership holds an investment in a captive insurance company anc is obtaining its general liability, workers'compensation and subcontractor default coverage through the captive insurance company. The investment in the captive insurance company is included in other assets. 16 Confidential SpewGlass Holding LP and Subsidiaries Notes to Consolidated Financial Statements Note 14. Major Customers For the year ended December 31, 2018, approximately 12 percent of the Partnership's construction revenue was related to one customer. Approximately 11 percent of the Partnership's contracts and retainage receivable was related to one customer at December 31, 2018 For the year ended December 31, 2017, approximately 23 percent of the Partnership's construction revenue was related to two customers. Approximately 39 percent of the Partnership's contracts and retainage receivable was related to two customers at December 31, 2017. 17 ��n SpawGlass City of Pearland Shadow Creek Library Pearland, Texas j'`,, . ii;‘,.. i ,_ ____,______,_________„_______ „ .r., ,s4,'.i • ".' 1.. _ .acZ t , .t a r _ _ , , _____ - 'am - . . . . _ . ._ a , ", -. ._,. cal , . - , l --:�— 1 . air� r i _�i. :�I � >f r�., `'��.� _. t 'Y' , Ifs' �h r 1'' ice } a' ^�. ._.__ .�' SpawGlass 13800 West Road CMAR Proposal Response Houston,TX 77041 Qualifications 281-970-5300 Mr.Brandon Meyers, LEED AP,AC RFP No.: 0519-40 President, Houston Division Brandon.Meyers@SpawGlass.com Project No. FA1805 www.SpawGlass.com Thursday, August 29, 2019 at 2:00 p.m. ELECTRONIC SUBMITTAL via eBid System City of Pearland Office of the City Secretary 3523 Liberty Drive Pearland, TX 77581 SpawGlass August 29, 2019 City of Pearland Office of the City Secretary 3523 Liberty Drive Pearland, TX 77581 ELECTRONIC SUBMITTAL via eBid System RE: CMAR Proposal Response, City of Pearland Shadow Creek Library, RFP No. 0519-40 Dear Selection Committee Representatives, With over 66 years of experience providing preconstruction and construction services for projects across Texas, SpawGlass has developed an impressive portfolio of municipal/government projects in the past six decades, totaling over $2 billion. Our goal on the Shadow Creek Library project is to make every dollar count, while building a high quality facility that will provide a variety of services to the community for many years to come. Modern libaries provide flexible, technology-rich spaces able to accommodate children and teens, continuing education programs for adults, community meeting spaces and more. The SpawGlass team will collaborate with your staff and the design team to deliver a project that meets your expectations and foster a rewarding project experience for everyone involved. SpawGlass offers the following benefits to the City of Pearland: • Similar Project Experience SpawGlass has completed multiple projects for federal, state and municipal clients throughout Texas. Among these facilities, we have completed several library projects: • City of Houston Kingwood Branch Library • City of Houston W.L.D. Johnson Neighborhood Library Renovation • Lamar State College-Orange Ron E. Lewis Library • Texas State University Albert B. Alkek Library • Texas A&M University West Campus Library • Texas A&M University Sterling C. Evans Library Renovations • The University of Texas at Austin Library and Artifacts High-Density Repository • Experienced Project Team Our project team will be led by Project Manager Justin Nowak and Superintendent Robert Davis whose qualifications and leadership skills have been proven through their performance together over the past year on the Harris County Precinct#4 Service Center project. • Leaders in CMAR Services Having completed over $1 billion dollars in CMAR contracts in the past five years, SpawGlass has extensive experience with the CMAR delivery method. Our successful CMAR service model is focused on working together with the owner in a partnering and collaborative way, which has proven to be key to fully understand the way stakeholders operate. We learn their internal businesses process, live with their challenges, and develop an appreciation for the magnitude, timing and complexity of the project. This process allows us to provide clients with greater value and service, including better budget control, proactive planning and a greater understanding of the project goals, resulting in high quality projects that are on time and on budget. We also coordinate all subcontractor bids and determine a guaranteed maximum price for construction. With CMAR, not only are we 100% responsible for the work we subcontract, but we commit to delivering project excellence within a Guaranteed Maximum Price. Page 2 • Client Satisfaction SpawGlass will treat you with individual care and attention, communicate openly and plan activities to meet your schedule. Ultimately, our goal is to provide you with the absolute best construction experience. Defining "the absolute best construction experience" will be determined through an initial kick-off meeting with the project team. We want to understand your definition of success, and we will formally measure how we are meeting your expectations at defined stages throughout the life of the project. • Experience with PGAL SpawGlass and PGAL have completed over $100,000,000 in projects together in the past five years, and we are currently working on four projects together including the Harris County Precinct 4 Service Center Phase II project with proposed Project Manager Justin Nowak and Superintendent Robert Davis. • Innovative Methodologies We have a successful track record for increasing the predictability for cost, coordination and constructability. This is accomplished utilizing our industry leading Building Information modeling(BIM) and Virtual Design and Construction (VDC)Technology. The value for your team is empowered decision-making within a collaborative, real-time, rapid feedback team structure. SpawGlass'VDC Services offers a proven program that will develop VDC standards and deliverables, create in-depth design coordination, create opportunity for real-time estimates, offer virtual inspections with our clients, offer 4D Simulation Scheduling, and assist trade partners with the ability to capitalize in prefabrication services. Our well-executed VDC program has routinely indicated a 300% return on investment, a 2%-%5 cost impact reduction, and 60% reduction in document errors and omissions. • Safety Our safety goal on each project we undertake is zero incidents. SpawGlass has an excellent safety record, with an Experience Modification Rate (EMR)well below the national average. We have been recognized by OSHA, industry associations such as Associated Builders and Contractors (ABC) and Associated General Contractors (AGC) and our clients for going beyond compliance to commitment to ensuring everyone on our jobsites goes home safe each day. Safety extends even further to visitors on or near our construction sites. We perform daily inspections of our jobsites and the surrounding areas to ensure any potentially dangerous or hazardous situations are corrected immediately. A safe job translates to no lost time due to accidents, a healthier workforce and peace of mind for neighboring communities. On behalf of our project team, we appreciate the opportunity to submit our qualifications to the City of Pearland, and we are excited at the prospect of completing the Shadow Creek Library project. If I can provide any clarification for you, please do not hesitate to contact me on my cell phone(281-960-5145)or by email(Brandon.Meyers@SpawGlass.com). Sincerely, j3AAA,9191--./d7eR4.._-- Brandon Meyers President, Houston Division We acknowledge receipt of Addendum No. 1, 08/15/2019, and Addendum No. 2, 08/22/2019. Providing the Absolute Best Construction Experience 13800 West Road I Houston,Texas 77041 1281-970-5300 SpawGlass.com AUSTIN I GOLDEN TRIANGLE I HOUSTON I NORTH TEXAS I SAN ANTONIO I SOUTH TEXAS Contents a Criteria a PAGE 1 Experience & Qualifications b Criteria b PAGE 12 Key Personnel C Criteria c PAGE 19 12— t., - - References � E Mi C� Criteria d PAGE 20 `s�► - j- Current Work Schedule/Record -':- e Criteria e PAGE 27_ Litigation, Claims, Reputation, Compliance � . ./= g p t :—f/_ Criteria f PAGE 28 ! �'i, Safety Record / g Criteria g PAGE 30 Quality Control Program - h Criteria h PAGE 31 .____ M_ Financial Resources- j • — Criteria i PAGE 32 r - - Bid Proposal Form i �.. ,. F _ - Attachment 1 - General Conditions Detail ritt - Bid Security Bond Criteria j PAGE 38 Cost Reduction Suggestions /llt ,` �/j �� �.�-� k Criteria k PAGE 41 ;4:.: s � f fglli ��� Certification Form _ ///,�_.._J®11111.._ ►\\\\L. Included Forms • Contractor Questionnaire , • Non-Collusion Statement _ F " Conflict of Interest Questionnaire I r 1 : ;, • House Bill 89 Verification Niel I Will 441.. „ ' c - • Reference Form '�-_ !a mid 44 lit ,., := .. - - Separate Attachments s ; • Safety Manual-Separate attachment due to page volume .. Quality Manual - Separate attachment due to page volume • Audited Financials- Separate attachment- CONFIDENTIAL Shadow Creek Library August 29,2019 CONSTRUCTION MANAGER'S EXPERIENCE&QUALIFICATIONS Instructions: Please provide a response to ALL informational requests filling in all blanks. Failure to provide a complete response is terms for rejection of proposal. If requested information does not apply place"N/A"in the blank. If no information exists place"End of Available Information" in the blank. Construction Manager's Name: SpawGlass Construction Corp. I. General a Qualification information submitted shall be applicable only to the company entity or branch that will perform this Work. All information presented is applicable to SpawGlass Construction Corp. h Attach your Project Organization Chart c Submit list of other fully staffed branch offices d Submit list of corporate officers,partnerships or owners oforganization II. History a Please specify: jCorporation- State oflncorporation Texas _Partnership _Sole Proprietorship _Joint Venture h Specify: In continuous business since: 1953 c S ecify: Large Business(100 or more employees) _Small Business(fewer than 100 employees) Other III. Experience a Normally performs 3%-5% %of work with own forces. h Proposing to perform 596-15% %of work for this project with own forces. i. List Trades Structural excavation,site layout(horizontal and vertical control),site utilities,site concrete(sidewalk,curbs,paving), concrete placement and finish,insulated concrete forms,formworks for walls and columns,isolated concrete beams, miscellaneous metals,rough/finish carpentry,millwork,door and hardware installation,cold form steel stud framing,tile. (additional attachments as required) Shadow Creek Library August 29,2019 SpawGlass Response 1 I. B. Project Organization Chart ^5 �9 Organizational Chart Preconstruction/ City of Pearland Estimating Support Preconstruction Services Manager Management Support Aaron Bradford Division President Team Leader/ Senior Estimator Brandon Meyers Project Manager Kan Phaobunjong, PhD Operations Manager Justin Nowak David Ajlani BIM Coordinator Josh Hawkins Superintendent Robert Davis Quality Control Manager Cameron Shewmaker SpawGlass Response 2 I. C. List of Fully Staffed Branch Offices Office Location Manager Houston Brandon Meyers Austin Kirby Baird Brazos Valley Garett Wheaton *North Texas Golden Triangle Josh Baker San Antonio (Selma) Jason Smith South Texas & Corpus Christi Eric Kennedy _1 Brazos Valley North Texas Weston Voss Austin 7� * t Golden San Antonio. Houston a„ Triangle J, tX....* .11 1 Corpus Christie * South Texas I. D. List of Corporate Officers, Partnerships or Owners of Organization Corporate Officers Joel Stone Chairman/CEO Michael Emmons COO Bobby Friedel CFO Brandon Meyers President, Houston Division SpRt{;la ss Corporate Lines of Communication Board of Directors Chairman/Chief Executive Officer(CEO) Joel Stone Functional I I I I Chief Financial Chief Operating Vice President, Director of Director of IT Officer(CFO) Officer(COO) Team Member Resources Marketing Rob Spencer Bobby Friedel Michael Emmons Laurie Ingle Hillary Cadra I I Team Member Vice President, Enterprise Development Manager Finance and WES Risk Manager Laurie Zamarripa Dan Hinson Scott Hobza I 1. Westland �,t'. Equipment& Accounting Safety 6 Supplies(WES) Divisional President, President, President, President, President, President,Senior President, South Texas Division San Antonio Division Austin Division North Texas Division Houston Division Living and Campus Civil Division Erie Kennedy Jason Smith Kirby Baird Weston Voss Brendan Meyers Housing Division Amer Al-Nahhas I Roger Berry Operations Operations Building Services tiding Services Equipment Manager Manager Manager Manager Cameron John Devaney Joey George Chris Schwertner Alec Stafford Building Services Building Services Manager Manager Houston Golden Triangle Brazos Valley Justin Calvin 3ay Hogue Operations Manager Operations Regional Ops.Mgr. David Ajianl Josh Baker Garett Wheaton Building Services Building Services Building Services Manager Michael Green Will Wight Mark Grauvogl Updated August 2019 SpawGlass Response 3 Shadow Creek Library August 29,2019 Identify and describe the firm's past experience for providing Construction Managerat Risk services that are MOST RELATED TO THIS PROJECT within the last five(5) years. List the projects in chronological order starting with the latest. (Similar Projects in Size and Scope Completed in Last Five Years)If additional space is required attach a separate document listing project information as shown below. Project Municipality $Amount Type Date Precinct#4 Service Center Phase I Harris County $20,949,416 New 11/2018 Public Transportation Admin. Facility Fort Bend County $21,084,067 New 10/2019-In 'rogress Music Activities Center Texas A&M University $32,160,114 New 06/2019 Agriculture Building#5 Texas A&M University $39,749,796 New 05/2019 Fabrication Design Center Prairie View A&M University $11,548,626 New 03/2018 Cypress Center Lamar State College-Orange $10,362,200 New 08/2017 Kingwood Branch Library City of Houston/Harris County $6,111,518 New 11/2009*` Project sheets providing more information on these projects are provided on the following pages. "Outside 5-year date range-included due to project similarities Shadow Creek Library August 29,2019 SpawGlass Response 4 Harris County Precinct 4 Relevant Project Service Center Phase Tomball, Texas 1 - ".4 __I, ___ . '"Irill. 41‘;rk'i...,,_ ., 7._ 4 iI — ou ; am 1 , — __ Al_ i a i . , rra . .. , - -------_______ __ ! __ ,....,i Vt . •,, 4 ' .Ar N. ilp- 1 Project Highlights , A� r • Proposed Project Manager Justin Nowak and ��♦ Superintendent Robert Davis are currently — working together on Phase II of this project - Iri.---,.., • CMAR Municipal project with PGAL T' ,_' „�. r �i 1:11 • Includes County Commissioner library, multi-purpose (( � .: meeting rooms, conference rooms and break rooms I,I ' Rao —..(_ • Large Site(21 acres) � • Harris County's first LEED Net Zero Building Phase I of this project was recently completed. It included multiple buildings, including a single-level, 31,873-square-foot administrative office building and a 26,000-square-foot warehouse/shop, with surface parking, access drives, fencing and other support functions on approximately 20 acres of undeveloped land. The project was designed with geothermal wells, ground-source heat pumps and photovoltaic cells to provide the facilities with net-zero consumption. The administrative office building consists of a grand, main entrance lobby/ reception area, open and private offices, conference rooms, break rooms and support spaces for employees. The warehouse/shop building includes open warehouse space, approximately 3,000 square feet of conditioned office and storage space, a large pre-manufactured paint booth and a conditioned paint shop. The administrative office building and warehouse/shop are a customized pre-engineered metal building hybrid structure. After successful completion of Phase I, SpawGlass was awarded Phase II of the project. Construction Cost: $20,949,416-Phase I; $12,694,623- Phase II (In Progress) Size of Project: 59,000 SF-Phase I; 77,000 SF-Phase II Completion Date: 11/2018-Phase I; 02/2020-Phase II (Anticipated, In Progress) Type of Construction: New Construction PGAL SpawGlass Response 5 Fort Bend County Public Transportation Relevant Project Administration and Operations Facility Rosenberg, Texas _ It 11111111 - ----- % i .I Tios • Project Highlights � ,, • Municipal project for Fort Bend County • .0- ". =• • Customer-focused 18,617 SF Administration Building • Auditorium, office space, conference rooms, kitchen/break area, lobby and multi-purpose rooms 1La • Preconstruction Services Manager Aaron Bradford and BIM Coordinator Josh Hawkins served on this 14-7 project The Fort Bend County Public Transportation and Maintenance Facility consists of a single-level, 18,617-square-foot administration facility as well as a 28,375-square-foot maintenance facility for bus and service vehicle repair. A fuel statio is also onsite isn to accommodate unleaded and diesel fuels, a fuel island canopy, bus wash station and two bus parking canopies. Additionally, the scope of work included concrete paving to provide parking for 183 passenger vehicles and 172 buses. Sitework consists of security lighting, perimeter fencing, landscaping, irrigation system, generator and mechanical yards, and a sound wall of approximately 12 feet tall by 526 feet long. The building envelope systems are comprised of cast-in-place concrete, brick and stone masonry, metal wall panels, single-ply roof system, moisture barriers, glazed aluminum curtain walls and aluminum framed entrances and storefronts. The one-story administration and operations facility will include accommodations for administrative activities, reservations and customer service, dispatch activities, fare sales and collections, traffic management, and driver work, break, and scheduling area. Construction Cost: $21,084,067 Size of Project: 75,000 SF Completion Date: 10/2019 (Anticipated- In Progress) Type of Construction: New Construction SpawGlass Response 6 Texas A&M University Featured Project John D. White '70 - Robert L. Walker '58 Music Activities Center College Station, Texas All'...-4.-'.:"4**'...--Nior,tit:r '-' ..IVU11/ N . r--`—"t 0/ _I rr ,. 1 1 r i . .. , ___ __ _ R r`17 T GJ A it .- Imo, .r ,4 1 A. -( --< I ' } 110 .4, ., d h� r^ ._ .„,,,,_;-_,_.„, ,„:-..,-,:,,:. :',,.,.„.: -... _,..-,.... _:,e-, ..../. , 4 '''-'','-,:}"-;.-4k-`1.b,c'.'•2'.4\N;s: Vti& ,,, project highlights --.. ..� "' wr �•r.�- - --Ti----- - , • CMAR project -`� - - r _ ``z,--- • Multi-level state-of-the-art facility with acoustically " " - M--- sensitive study and practice rooms, locker space, • conference rooms, collaboration rooms, lounge areas �' and an extensive AV package • Music library and storage archive .. - „.„-------------- • Artificial turf practice field and extensive landscape package hist ' ` • Preconstruction Services Manager Aaron Bradford / and BIM Coordinator Josh Hawkins served on this project .!II Recently completed, this new 70,000-square-foot center accommodates more than 1,300 student musicians who participate in a total of 14 orchestras, choral groups and bands, including the nationally acclaimed Fightin' Texas Aggie Band. The facilty is intended to combine the Fightin'Texas Aggie Band, Wind Symphony, Concert Band, Student Ensembles, Jazz Band, Aggieland Orchestra, Signing Cadets, Century Signers, Women's Chorus, and Chamber/Philharmonic Orchestra. The building includes four new rehearsal hall with state-of-the-art acoustics, soundproof practice rooms and ample locker space. The facility also includes a new artificial turf practice field that is a replica of Kyle Field. Final Construction Cost: $32,160,114 Size of Project: 70,733 SF Completion Date: 06/2019 Type of Construction: New SpawGlass Response 7 Texas A&M University Featured Project Agriculture Building #5 College Station, Texas . / If ...- ..._. _ ,.....-, '''''' P"11Pier--D 1 ,.....................%4ir...,..........,./.111 Oil I �— ll 1.. .1 1 f _ iiiiazi• - �;,} -�---_, t ass- _- 17*".'-:- .,„°11: Or. 41111Y-- .,.,414 It ' - - -- . . i— fk -- ' a. , , . . i /I • ir A T� _- I project highlights '� r_ i to IT/ • CMAR project ! "^ 0 r r- ,,,i •• Multi-level state-of-the-art facility with 300-seat • .� f `; .' 4 auditorium, 150-seat seminar and training room, multiple conference rooms, large breakroom and = f kitchenette,five teaching rooms, offices, extensive • �__ -�" landscape package ' `� � I- 'M. - . • �7� Fit�rr�'n 1 1 •r __..._ • Exterior program space and rooftop greenhouse — - �- r --tit • Preconstruction Services Manager Aaron Bradford and BIM Coordinator Josh Hawkins served on this 9 project i i Recently completed, the new Agriculture Building #5 features a four-level laboratory wing and a three-level teaching and departmental office wing. The project scope includes heavy MEP systems for the research and teaching lab spaces associated with plant pathology and microbiology. Programs leading to careers in plant pathology, microbiology and bioenvironmental sciences are offered through the department. Additionally, graduate students may specialize in such areas as plant microbiology, genomics, disease management, microbial ecology and molecular plant-microbe interactions. Final Construction Cost: $39,749,796 Size of Project: 82,895 SF Completion Date: 05/2019 Type of Construction: New SpawGlass Response 8 Prairie View A&M University Featured Project Design Fabrication Center Prairie View, Texas o \ Ii _ ;. r — ��,� • 1 ,..4 1 zre., .. , . .. , i,7,4—' _ • ' ,0 ' , .t.-.4•-... ..k• ` - " 7 4 ;1 - ril iRi el, ' IN ____'I NI Fig' 1 I 1 ...-- ., - II project highlights • • CMAR project • State-of-the-art fabrication technology and equipment 4�so.- h, Digital Media and research library V - ri - , II.;. ++ • Multi-purpose meeting space - - • Preconstruction Services Manager Aaron Bradford served on this project • Safety Commendation Award,AIA Design Award Architecture students at PVAMU can earn hands-on experience building their designs at the new Fabrication Center. The 25,047-square-foot, open-concept facility features sophisticated technology and incorporates flexibility for future upgrades to digital fabrication tools to keep up with the rapid pace of technology. The facility includes wood shop, metal shop, shop assembly, computer numerical control routing, digital media art, print making and photo making areas. Final Construction Cost: Si1,548,626 Size of Project: 31,000 SF Completion Date: 03/2018 Type of Construction: New SpawGlass Response 9 Lamar State College-Orange Featured Project Cypress Center Orange, Texas -t '' ''''. ,N'>/: ' '''''''''.'ci,,..,,ti'',:,--;-17:—.";*....-4":? A '---.4,)(' g f ---� I . �� :. >< 4 -, project highlights • CMAR project i _i• 400-person conference/banquet space with prep m -. 11. .. 1 kitchen �� a ,_,,.,� • Computer lab, classroom and administrative space _-II ,p x 7 • Art studio for continuing/workforce education "I. .- ,--^:_i _ > lido • Public meeting and circulation space ' • Exterior meeting program space --_ The new, two-story Lamar State College-Orange Cypress Center includes classrooms and additional instructional spaces for the growing student body. Math and education classes started in Fall 2017 utilizing the latest in instructional technology. In addition, the building's conference center, with a capacity up to 400 people, enables the College to host large events such as graduations, lectures, career fairs as well as community events. Final Construction Cost: $10,362,200 Size of Project: 17,990 SF Completion Date: 08/2017 Type of Construction: New SpawGlass Response 10 City of Houston/Harris County Featured Project Kingwood Branch Library Kingwood, Texas T .._T . e "'". 'A= :ins,. r- Ili Mai _ _ r' y _ \ , \� II(ice r . _ 1 - I t 1 • I - .. i pi $ (1 . _Iirliii.- i'L,,r, L N It _ _ ce -sit—at project highlights Imo,. ,.Y+i::',� ` ? O • Municipal CMAR library project for City of Houston/ e." # Harris County IIman C. op, 4 mow • 2-story,20,000 SF library with capacity for 400 people ___._�_�a. IIM. • 104 computers for public use with Internet, MS Office, , A X• j , ,- '. and Catalog access _ • Multiple community/meeting rooms, conference room, -,"= . teen room, children's area, private study rooms • Drive-through window, 2 vending areas, self check-out, 3 print stations . The 30,000 SF, LEED-silver certified Kingwood Branch Library is an amenity rich, energy efficient building made possible by a joint-venture between the City of Houston and Harris County. It offers 120,000 traditional library materials, is equipped with 146 computers for public use, and can hold up to 400 occupants. A destination for all ages, the library has a floor for adults and teens, a children's activity area, teen media room, study rooms, a computer lab, meeting space, and a conference room. It offers with comfortable seating and natural light with excellent views of the surrounding forest area. Set on a 9.12-acre site, the design for the building left 70% of the site as a forested green space. It was the first LEED certified project in Kingwood, Texas. Final Construction Cost: $6,111,518 Size of Project: 30,000 SF Completion Date: 11/2009 Type of Construction: New SpawGlass Response 11 Shadow Creek Library August 29, 2019 CONSTRUCTION MANAGER'S KEY PERSONNEL I. Project Team Information a. Resumes of key personnel shall also be included. Professional affiliations, memberships, and certifications for each of the key personnel must be included and will be used to evaluate the proposed team and personnel. b. Commitment indicates the amount of time(in percent)that the staff person would be available to work on the project during the preconstruction,permitting and construction phases of work. Indicted by"N/A"where the individual is not proposed to be involved in particular phase of work. For example,if a person would be available 20 hours per week out of a 40-hour work week,reply 50%. c. Provide this information for as many projects as are applicable. Project Manager Years' Experience Projects Justin Nowak 8 Years Please see attached resume Commitment:Preconstruction: 25 % Permitting: 25 % Construction: 100 % Estimator Years' Experience Projects Aaron Bradford, Precon Services Marager 16 Years Please see attached resume Kan Phaobuniong, Senior Estimator 24 Years Please see attached resume Commitment:Preconstruction: 75 Permitting: As Needed % Construction: As Needed % Modeling Years' Experience Projects Josh Hawkins, BIM Coordinator 5 Years Please see attached resume Commitment: Preconstruction: 50 Permitting: N/A % Construction: 25 SpawGlass Response 1 2 Shadow Creek Library August 29,2019 CONSTRUCTION MANAGER'S KEY PERSONNEL-CONTINUED Project Engineer Years' Experience Projects QC Manager will perform Project E ngineer's responsibilities. Commitment:Preconstruction: Permitting: Construction: % Assistant Project Manager Years'Experience Projects Project Manager will perform Assistant Project Manager's responsibili ies. Commitment:Preconstruction: Permitting: Construction: Superintendent Years' Experience Projects Robert Davis 13 Years Please see attached resume Commitment: Preconstruction: 25 Permitting: Ac NaPriPri % Construction: 100_% Scheduler Years' Experience Project Superintendent will perform Scheluler's responsibilities. Commitment: Preconstruction: Permitting: Construction: SpawGlass Response 13 Shadow Creek Library August 29, 2019 CONSTRUCTION MANAGER'S KEY PERSONNEL-CONTINUED Quality Control Person Years' Experience Project Cameron Shewmaker 1 Year Please see attached resume Commitment: Preconstruction: As Needed % Permitting: N/A % Construction: 100 _% SpewGlass Response 14 Justin Nowak Project Manager As project manager, Justin will be responsible for overall construction management of the project. His responsibilities will also include specialty contractor coordination, jobsite organization, contract administration and construction operations. Years in Industry: 8 Years Representative Project Experience Years with SpawGlass: 6 Years • Harris County Precinct 4 Service Center Phase I, Tomball, TX; Education/Training 59,000 SF, Contract: $20,949,416 B.S. Construction Science, • Harris County Precinct 4 Service Center Phase II, Tomball, TX; Texas A&M University 77,000 SF, Contract: $14,500,000 OSHA 30-Hour . Chevron Phillips Chemical Company USGC Ethylene Project Cedar Bayou Plant Control Room Building, Baytown, TX, 15,000 SF, Contract: Confidential • Chevron Phillips Chemical Company Cedar Bayou Plant New Combined Materials Lab, Baytown, TX; 25,000 SF, Contract: Confidential • Houston Methodist Hospital Primary Construction Manager-at-Risk, Houston, TX; Contract: — $40,000,00 Robert Davis, PMP Superintendent As superintendent, Robert will be responsible for safety, organization : R" and mobilization of field operations, continuing project planning, documentation of daily activities, inspection of work for quality conformance and ensuring activities align with the project schedule. Representative Project Experience Years in Industry: 13 Years Years with SpawGlass: 1 Year • Harris County Precinct 4 Service Center Phase I, Tomball, TX; 59,000 SF, Contract: $20,949,416 Education/Training B.S. Construction Management, • Harris County Precinct 4 Service Center Phase II, Tomball, TX; Sam Houston State University 77,000 SF, Contract: $14,500,000 Licensed Project Management • Schlumberger Research Center Campus Upgrades, Rosharon, TX; Professional (PMP) 20,000 SF, Contract: $6,000,000* OSHA 501 • Smith International - A Schlumberger Company - Campus NFPA 70E-Standard for Electrical Safety Upgrades, Houston, TX; Contract: $15,000,000* • Greenland Energy Center Power Generating Facility, NCCER Field Safety Jacksonville, FL; Contract: Confidential* NCCER Safety Technology . Freeport LNG Storage Facility, Freeport, TX; 'work prior to SpawGlass Contract: Confidential* SpawGlass Response 1 5 Josh Hawkins SpawGlass 141 BIM Coordinator Specializing in Building Information Modeling (BIM), Josh will work with the project team to resolve any potential issues in the construction documents through clash detection. He also will work with the team to pull together all building components and assist with submittals. Representative Project Experience Years in Industry: 5 Years Years with SpawGlass: 5 Years • Harris County Precinct 4 Service Center Phase II, Tomball, TX; 77,000 SF, Contract: $14,500,000 Education/Training Fort Bend County Public Transportation Administration and M.B.A. Finance, Operations Facility , Rosenberg, TX; 75,000 SF, The University of St. Thomas Contract: $21,084,067 B.B.A, • Texas A&M University John D. White '70 — Robert L. Walker '58 The University of St. Thomas Music Activities Center, College Station, TX; 70,733 SF, Contract: $32,160,114 OSHA 30-Hour • Texas A&M University Agriculture Building #5, Certified in Conflict Management College Station, TX; 82,895 SF laboratory and teaching facility, Contract: $39,749,796 Cameron Shewmaker Fi' Orif Quality Control Manager • uality control manager, Cameron's responsibilities include assisting roject manager and superintendent with inspection of all construction ities at the project site. He will document and record all of the commissioning performed on the project and offer a second set of eyes to the team and assist with the quality craftsmanship of our trades and client satisfaction. Years in Industry: 1 Year Representative Project Experience Years with SpawGlass: 1 Year • Harris County Precinct 4 Service Center Phase I, Tomball, TX; Education/Training 59,000 SF, Contract: $20,949,416 B.S. Construction Science, . Harris County Precinct 4 Service Center Phase II, Tomball, TX; Texas A&M University 77,000 SF, Contract: $14,500,000 OSHA 30-Hour SpawGlass Response 16 Aaron Bradford, AC Preconstruction Services Manager Representative Project Experience Aaron has proven his capabilities in . Harris County Precinct 4 Service Center Phase I, Tomball, TX; preconstruction services, handling 59,000 SF, Contract: S20,949,416 hundreds of projects over the past five years. His experience with the • Harris County Precinct 4 Service Center Phase II, procurement and buy-out process Tomball, TX; 77,000 SF, Contract: $14,500,000 will be utilized to ensure the project . Prairie View A&M University Fabrication Center, is priced in the most cost effective Prairie View, TX; 31,000 SF, Contract: $11,308,440 manner possible. His experience City of Houston Midwest Police Station, Houston, TX; with project administration, contract 65,000 SF, Contract: $5,828,055 compliance, scheduling and estimating all lend to his methodical approach to • Texas A&M University Corps Dorm Renovation, managing preconstruction services. College Station, TX; 306,000 SF dorms, 64,000 SF learning centers, 350,000 SF quad/plaza area, Contract: $126,882,908 Years in Industry: 16 Years . Texas A&M University Chemistry Building 1972 Wing Years with SpawGlass: 14 Years 1st& 2nd Floor Renovation, College Station, TX; 30,000 SF, City of Residence: Katy, TX Contract: $11,233,234 Education/Training • Texas A&M University Chemistry Building 1972 Wing B.S., Construction Science, 3rd Floor Renovation, College Station, TX; 8,000 SF, Texas A&M University Contract: $3,362,796 • University of Houston Downtown Commerce Street Building, American Society for Healthcare Houston, TX; 94,000 SF, Contract: $14,714,304 Engineering (ASHE) Healthcare Construction Certificate (HCC) • University of Houston Parking Garage and Welcome Center, Houston, TX; 529,500 SF, Contract: $21,831,000 American Institute of Constructors Associate Constructor(AC) Certification • Cane Island Recreation Center, Katy, TX; 25,000 SF, (Level 1) Contract: $12,398,512 • Hobby Airport Garage, Houston, TX; 1,000,000 SF, four-story National Center for Construction CIP parking garage designed to accommodate 3,000 cars. Education and Research (NCCER) 100 Contract: $49,383,845 Hour Certified Site Safety Technician (CSST) • American First National Bank Tower and Parking Garage, Houston, TX; 200,000 SF, Contract: $26,440,000 LEED Green Associate • Houston Methodist Primary Construction Manager-at-Risk, Houston, TX; Contract: - $39,885,377 (ongoing) • Houston Methodist St. John Hospital Labor and Delivery Unit Renovation, Nassau Bay, TX; 19,000 SF, Contract: $6,890,199 • Houston Methodist West Construction Manager-at-Risk, Houston, TX; Contract: — $22,000,000 SpawGlass Response 1 7 Kan Phaobunjong, PhD, LEED AP Senior Estimator 41.1 Representative Project Experience Throughout his career, Kan . City of Houston/Harris County Kingwood Branch Library, has focused on providing Kingwood, TX: 30,000 SF, Contract: $6,111,518 preconstruction services for all types of higher education and • Harris County Sylvan Beach Pavilion Restoration, complex construction projects. LaPorte, TX: 18,525 SF, Contract: $4,875,298 As lead estimator, Kan will • City of Houston Midwest Police Station, Houston, TX; provide budgets and GMP pricing, 65,000 SF, Contract: $5,828,055 solicit bids from subcontractors . Houston Police Department Police Station, District 17, and assist in constructability Houston, TX; 29,000 SF, Contract: $6,414,660 reviews and value analysis. He Texas A&M University Corps Dorm Renovation, will work cohesively with the College Station, TX; 306,000 SF dorms, 64,000 SF learning centers, preconstruction team to ensure all 350,000 SF quad/plaza area, Contract: $126,882,908 budgeting needs are met. • Texas A&M University Chemistry Building 1972 Wing Years in Industry: 24 Years 1st & 2nd Floor Renovation, College Station, TX; 30,000 SF, Years with SpawGlass: 14 Years Contract: $11,233,234 City of Residence: Houston, TX • Armed Forces Reserve Center at Ellington Field Phase I, Education/Training Houston, TX; 148,000 SF, Contract: $32,029,323 PhD Civil Engineering, • Armed Forces Reserve Center at Ellington Field Phase II, The University of Texas at Austin Houston, TX; 168,700 SF, Contract: $47,934,000 M.S. Construction Engineering • Texas A&M University McFerrin Athletic Center, and Project Management, College Station, TX; 191,000 SF, Contract: $31,665,656 The University of Texas at Austin • Texas A&M University Cox-McFerrin Center for Aggie Basketball, College Station, TX; 67,000 SF, B.S. Civil Engineering, Contract: $18,469,142 The University of Texas at Austin • Texas A&M University Bright Football Complex, College Station, LEED AP TX; 125,000 SF, Contract: $18,290,300 • San Jacinto College Central Campus Science Building and Allied Health Addition, Pasadena, TX; 145,000 SF, Contract: $28,058,923 • West Texas A&M University Renovation of Athletic/Intramural Facilities, Canyon, TX; 12,887 SF, Contract: $18,206,162 • Chevron Phillips Chemical Company Cedar Bayou Plant New Combined Materials Lab, Baytown, TX; 25,000 SF, Contract: Confidential SpawGlass Response 18 Shadow Creek Library August 29,2019 CONTRACTOR REFERENCES References: Name 5 projects of similar work, giving owner's name, owner's representative's name,project architect's name,and telephone numbers for each. References must be provided for owners of similar size and scope as the proposed Cityproject. 1. Harris County Precinct 4 Administration Building Owner: Harris County Architect: PGAL Jarrett McArthur Cheryl Gajeske, Principal Phone: 713-274-1550 Phone: 713-622-1444 Email: Jarrett.McArthur@eng.hctx.net Email: cgajeske@pgal.com 2. City of Houston Northside Health Clinic Renovation Owner: City of Houston Health Department Architect: English &Associates Claudette Manning, Division Manager-Facilities Kathleen English, Principal Phone: 713-437-6855 Phone: 713-850-0400 Email: claudette.manning@houstontx.gov Email: kenglish@english-architects.com 3. Fort Bend County Public Transportation Administration and Operations Facility Owner: Fort Bend County Architect: RdIR Architects James Knight, Director of Facilities Daniel Ortiz, Principal Phone: 281-238-3095 Phone: 713-686-3121 Email:james.knight@fortbendcountytx.gov Email: dortiz@rdlr.com 4.Texas A&M University Agriculture Building #5 Owner: Texas A&M Architect: Randall Scott Architects Michael Campbell, Construction Project Manager Daniel Brantner, Vice President Phone: 979-458-7000 Phone:972-664-9100 Email: mcampbell@tamus.edu Email: dbrantner@rsarchitects.com 5. Prairie View A&M University Fabrication Center Owner Rep: Project Control of Texas, Inc. Architect: Kirksey Gary Hall, Senior Vice President Brian Lemmon, Senior Associate Phone: 210-545-0008 Phone: 713-850-9600 Email: gary@projectcontrol.com Email: brian@kirksey.com SpawGlass Response 19 Shadow Creek Library August 29, 2019 CONSTRUCTION MANAGER'S CURRENT WORK SCHEDULE/RECORD I. Current Work Schedule a. List major construction projects your organization has in-progress using the format below: Name&Location Contract$ %Complete Projected Owner Contact of Project Completion Date And Phone Please find our current project listing on tha following page. b. Total number and dollar amount of contracts currently in progress: Number 17 $ -$300,368,145 c. Largest single contract amount currently in progress: Project Name: Village of Southamption Projected Completion Date: 04/2020 Dollar Amount $ S65,698,353 II. Past Record a. List major construction projects your organization has completed in the last 5 years with completion dates and references. Name&Location Contract$ Date Completed Owner Contact of Project and Phone Please find a completed project list on the following pages. b. Volume of work completed over last 5 years: 2014$ 1.236.556.215 2015$ 1.276.326.802 2016$ 1,083,520.835 2017$ 1,172.552,035 2018$ 1,402,835,586 SpawGlass Response I. a. Current Projects In Progress Spatt'Glass Current Projects in Progress Contract Percent Scheduled Project Owner Architect Amount Complete Completion Date Port Arthur Downtown Motiva Refinery Haddon+Cowan Development Architects $50,000,000 Collaborative, LLC Preconstruction December 2021 Port Arthur,TX Chelsea Koh (512)374-9120 Ben Taub Hospital Emergency Harris County Johnston,LLC Center Renovation Paula Gaviria $32,627,866 David Attard (713)244-8300 Preconstruction July 2021 Houston,TX (713)634-1451 Texas A&M University Polo Texas A&M University PGAL Garage System Michael Lloyd $59,507,000 December 2020 (713)622-1444 6% College Station,TX David Wilkinson llii IL (979)458-7043 Agriculture Comprehensive Prairie View A&M Hahnfeld Hoffer Facility University Stanford $4,900,000 May 2020 Gary Ryan1% Daniel McGuire (817)921-5928 Prairie View,TX (979)458-7074 Bridgewood Property PRDG Architects Village of Southampton Company Ryan Robinson $65,698,353 April 2020 (214)915-8414 42% Houston,TX Jim Hepburn (713)623-6767 Harris County Precinct 4 Harris County PGAL Service Center Phase II Jon Hale $12,694,623 February 2020 Jarrett McArthur (713)622-1444 6% Tomball,TX (713)274-1550 PliaL H-E-B Grocery Selser Schaefer H-E-B Meyerland Mall Company L.P. Architects Confidential January 2020 30% Houston,TX Texas A&M University Texas A&M University PGAL Chemistry Building 1972 Wing System Mike Heiman $5,279,559 December 2019 Ground Floor Renovation (713)622-1444 0% Bob Casagrande College Station,TX PC I I, Fort Bend County Public Fort Bend County RdIR Architects,Inc. Transportation Administration Daniel Ortiz $21,084,067 October 2019 and Operations Facility (713)686-3121 49% James Knight Rosenberg,TX (281)238-3095 Texas A&M University Women's SSC Service Solutions Populous Basketball Locker Room Josh Vogel $2,186,617 October 2019 (816)329-4579 1% College Station,TX David Ritter (979)458-8854 Valero Energy Valero Port Arthur Central Shop Corporation Port Renovation Arthur Refinery N/A $1,100,000 1%$1,100,000 2019 Port Arthur Ashlee Garrett (409)985-1882 SpawGlass Response 21 Spa%vGlass Current Projects in Progress Contract Percent Scheduled Project Owner Architect Completion Amount Complete Date Prairie View A&M University Prairie View A&M WestEast Design Sustainable Efficient Envelope University Group, LLC $1,069,059 September 2019 Design Lab(SEED Lab) Matthew Agee 34% Synthia Walton (210)530-0755 Prairie View,TX (936)261-3874 Natgasoline Security Center Natgasoline N/A $2,879,199 48% August 2019 Beaumont,TX Markus Boecker (409)344-4922 North Houston Rockstar Energy Bike Park Development Jones'Carter Corporation Martin Murdock $19,601,102 August 2019 (713)777-5337 99% Houston,TX Sally Bradford (281)877-9952 H-E-B Grocery Selser Schaefer H-E-B Washington Heights Company L.P. Architects Confidential August 2019 38% Houston,TX Bill Stojanik (210)938-7988 Fidelis Realty Boucher Design Group - Meyerland Plaza Partners LLC Confidential August 2019 Daren Penewitt 48% Houston,TX Mike Coontz (713)490-6178 (713)693-1417 Houston Methodist Hospital Houston Methodist Primary Construction Manager- Hospital Varies by Project $30,500,000 Ongoing Ongoing at-Risk Contract g g Ken Lawson Houston,TX (713)441-7495 SpawGlass Response 22 II. b. Competed Major Projects - Past 5 Years SpawGlass Select Completed Projects— Past 5 Years _._. Project Owner Architect Contract Completion Amount Date City of Houston General Services English+Associates Northside Health Center Renovation Department Architects,Inc. $2,976,508 Angelia Mackey August 2019 Houston,TX Greg Quintero (713)395-1364 (832)393-8069 Texas A&M University John D.White Texas A&M University System BRW Architects 70—Robert L.Walker'58 Music Activities Center Craig Reynolds $32,160,114 June 2019 Michael Campbell (979)694-1791 College Station,TX (979)458-7000 Randall Texas A&M University Agriculture Texas A&M University System Building#5 Scott Architects,Inc. $39,749,796 May 2019 Daniel Brantner Michael Campbell (972)664-9100 College Station,TX (979)458-7000 Prairie View A&M University Solar Prairie View A&M University WestEast Design Group, Observatory Expansion LLC $2,173,412 April 2019 Synthia Walton Prairie View,TX (936)261-3874 Lamar State College-Orange Lamar State College-Orange Workforce Renovation $189,930 April 2019 Cheryl Byley Beaumont,TX (409)882-3319 Texas A&M University EnMed Texas A&M University System, Renovation at Houston Methodist Texas A&M Health Science Center, Corgan Hospital West Pavilion 6 Houston Methodist Hospital $2,939,736 March 2019 Houston,TX Kevin Kovalycsik (713)677-8268 Boys&Girls Clubs of the Austin Area Boys and Girls Club of Austin STG Design Home Club on the Sheth Family Bret Hirsch, LEED AP $10,473,936 March 2019 Campus (512)358-3582 Misti Potter Austin (512)444-7199 CityCity of Lakeway Brinkley Sargent of Lakeway Police Facility Wiginton $18,086,824 March 2019 Lakeway Todd Radford (512)314-7590 Harris County Precinct 4 Service Harris County PGAL November Center Phase I $20,949,416 2018 Peter McDaniel I11;'I Tomball,TX (713)274-1545 H-E-B Grocery Company L.P.,H-E-B Selser Schaefer Jones Crossing H-E-B Construction Architects Confidential August 2018 Shane Aaron College Station Roan Gardner (918)587-2282 (210)938-6919 Austin Community College Round Austin Community College Page Rock Campus Phase 2 Franklyn King $27,351,072 April 2018 Jamie Hand (512)382-3521 Round Rock (512)223-1120 SpawGlass Response 23 SpawGlass'. Select Completed Projects- Past 5 Years Project Owner Architect Contract Completion Amount Date Port Authority of San Antonio Project Port San Antonio Beaty Palmer Architects Tech Building One Terry Palmer Confidential March 2018 John Farrow (210)212-8022 San Antonio,TX (210)362-7890 The Church of Jesus Christ of HKS, Inc. Houston Texas Temple Repairs Latter-day Saints David Henderson $3,294,707 March 2018 (801)384-7604 Spring,TX Randy Mendenhall (801)240-0091 Prairie View A&M University Texas A&M University System, Kirksey Architecture Fabrication Center Prairie View A&M University Brian Lemmon $11,548,626 March 2018 (713)850-9600 Prairie View,TX Bruce Bockhorn (936)261-9805 San Antonio River Foundation, Lake Flato Architects Confluence Park Parkwerks,LLC Tenna Florian $8,909,771 March 2018 (210)679-2334 San Antonio,TX Stuart Allen (210)370-7005 H E B South Fry Remodel H-E-B Grocery Company L.P. pb2 Scott Broadbent Confidential January 2018 Brandon Puhlmann (479)878 3731 Katy,TX (210)938-7992 Sam Houston State University Texas State University System PBK Architects,Inc. December Thomason Building Re-Purpose Alan Stilts $5,738,552 2017 (281)528-1697 Huntsville,TX Texas A&M University Basketball SSC Service Solutions Gensler September Locker Room Byron Chambers $2,194,134 (214)273-1500 2017 College Station,TX Lamar State College-Port Arthur Texas State University System Johnston,LLC Sheila McCarthy Umphrey Industrial Elkin Aguilar $10,130,831 August 2017 Technology Center Marcus (713)532 2466 Swayzer Port Arthur,TX (713)349-9333 Lamar State College-Orange Texas State University System, Cypress PBK Architects,Inc. Center Lamar State College Orange Alan Stilts $10,362,200 August 2017 (281)528-1697 Orange,TX J.Michael Shahan (409)882-3314 Stark Museum of Art New Education Nelda C. and H.J.Lutcher Stark Architectural Alliance and Archives Foundation Inc. $6,138,769 July 2017 Rob Clark Walter Riedel, III (409)866-7196 Orange,TX (409)883-3513 Texas A&M University Krueger Hall Texas A&M University System,SSC Patterson Architects Renovation Service Solutions Sarah Korpita $3,021,344 July 2017 (979)775-6036 College Station,TX Steve Laube (979)862-3150 SpawGlass Response 24 SpawGlass Select Completed Projects— Past 5 Years Project Owner Architect Contract Completion Amount Date Texas A&M University Neeley Hall Texas A&M University System,SSC The Arkitex Studio,Inc. Renovation Service Solutions Michael Record $1,487,373 July 2017 (979)821-2635 College Station,TX Steve Laube (979)862-3150 Texas A&M University Corps Dorm Texas A&M University System Kirksey Architecture Renovation Wes Good $126,119,921 June 2017 Russ Wallace (713)850-9600 College Station,TX (979)458-7002 Texas A&M University Chemistry PGAL Building 1972 Wing 1st and 2nd Texas A&M University System Floor Renovation Mike Helman $11,507,554 June 2017 College Station,TX PC II Sam Houston State University Piney Sam Houston State University, Stantec Woods Hall Texas State University System Erin Machac S58,447,106 June 2017 (713)548-5700 Huntsville,TX Denise Neu Houston Methodist Clear Lake Houston Methodist Hospital PhiloWilke Partnership Hospital MRI Replacement and Greg Johnson $2,364,469 June 2017 Emergency Department Renovation (832)554-1130 Emily Thurston Nassau Bay,TX (713)441 7648 The Standard on West Dallas Baron Properties Pie Consulting Group Jessica Thiebout S16,862,534 June 2017 Jeff Riggs (855)380-8812 Houston,TX (720)488-2004 The Village of River Oaks Bridgewood Property Company House+Partners Jim Hepburn $51,846,799 March 2017 Jim Hepburn (713)522-0815 Houston,TX (713)623-6767 Houston Airport System Harrison Kornberg Architects Hobby Airport Garage $49,383,845 September Rashmi Murthy 2016 Houston,TX Patrick Hill (713)229-0688 (770)390-9386 Lamar University Administration and Texas State University System, Page Honors Building Lamar University Aaron Jones $19,721,567 August 2016 (713)871-8484 Beaumont,TX Katherine Miller (409)880-8641 Houston Methodist Clear Lake Houston Methodist Hospital HDR,Inc. Hospital Labor and Delivery Unit Tom Braud $6,992,161 August 2016 Renovation (713)335-1900 Emily Thurston Nassau Bay,TX (713)441 7648 Texas A&M University Mosher Hall SSC Service Solutions Patterson Architects Summer 2016 Renovations Sarah Korpita $1,648,430 July 2016 Robert Wytaske (979)775 6036 College Station,TX (979)458-8854 SpawGlass Response 25 SpawGlass'.. Select Completed Projects— Past 5 Years - Project Owner Architect Contract Completion Amount Date San Antonio Water System New San Antonio Water System Marmon Mok Operations Centers Cody McBrearty $25,014,288 May 2016 Julie Valadez (210)223-9492 San Antonio,TX (210)233-3078 Central Firehouse Port Arthur Chevron Phillips Chemical Furmanite Technical Refinery Company,LLC Solutions Confidential April 2016 Tracey Mott Giacomo Figlia (409)840-2163 Port Arthur,TX (409)985-0791 Sam Houston State University Walker Sam Houston State University Strand Associates,Inc. Education Center Parking Lot Ed Addicks $774,611 March 2016 Mike Lampson (979)836-7937 Huntsville (936)294-3152 Houston Methodist Continuing Care Houston Methodist Hospital PhiloWilke Partnership Hospital Revenue Cycle Melissa Edwards $11,076,100 March 2016 Karl Schuman (832)554-1130 Katy,TX (713)441-9016 Rise Communities LLC Jackson McElhaney Cane Island Amenity Village Architects $12,398,512 February Michael McElhaney 2016 Katy,TX Mathew Lawson (512)472-5132 (702)990-2134 Texas A&M University West Campus Texas A&M University System BOKA Powell,LLC Housing Streets and Infrastructure Tom Lekawski $8,285,482 January 2016 Bruce Karr (512)687-0699 College Station,TX (979)458-7042 Port Arthur Economic Development Aaddon+Cowan Architects Port Arthur Savings Renovation Corporation February Collaborative, LLC $3,385,126 2015 Michael Cowan Port Arthur,TX Floyd Batiste (512)374-9120 (409)963-0579 Samsung Corporate Office Tenant Samsung,Samsung Engineering Carson Design America Inc. Improvement Project Associates $4,516,902 November Wes Blaney 2014 Josh Lim (512)628-8584 Houston,TX (832)362-2000 Chevron Phillips Chemical Company Chevron Phillips Chemical CH2M HILL Cedar Bayou Plant New Combined Company,LLC Mike Hinkamp Confidential October 2014 Materials Lab (314)335-3739 Keith Shrull Baytown,TX (281)421-6500 Texas A&M University Chemistry Texas A&M University System Building 1972 Wing 3rd Floor PGAL Renovation $3,362,796 October 2014 Dennis Gray College Station,TX (979)458-8854 Phi.1L Please Note: SpawGlass typically self-performs 15-20%of the scope of work. SpawGlass Response 26 Shadow Creek Library August 29, 2019 CONSTRUCTION MANAGER'S LITIGATION,CLAIMS,REPUTATION& COMPLIANCE Please answer the following questions a. Has your firm ever defaulted, been declared to be in default, or failed to complete any work awarded? nos no If yes,stipulate where and why: b. Has your firm ever paid(or had withheld from payment) liquidated damages for failure to complete a contract ontime? ___nos A no If yes,stipulate where and why: c. Has your organization ever been charged with or paid a fme for non-compliance of State and/or Federal statutes or regulations? ,yes A no If yes,stipulate where and why: II. List pending claims and/or litigation against or involving project owners at time of submitting Proposal. Show project name,owner and summaryexplanation. Spawnlass has not initiated or hem involved in any claims and/or litigation with owners in the past 20 years. There are also no pending iudgments or outstanding arbitrations regarding liens or lawsuits filed within the last five years. SpawGlass Response 27 Shadow Creek Library August 29, 2019 CONSTRUCTION MANAGER'S SAFETYRECORD I. List your organization's Workers Compensation Experience Modification Rate(EMR)for the last five years,as obtained from your insurance agent. 2014 0.59 2015 0.66 2016 0.62 2017 0.51 2018 0.58 II. Complete the matrix below for the last five years,as obtained from OSHA No. 200 Log: 2014 2015 2016 2017 2018 Number of injuries &illnesses 0 1 0 0 0 Number of lost time accidents 0 0 0 0 0 Number of recordable cases 0 1 0 0 0 Number of fatalities 0 0 0 0 0 Number of employee direct hire fixed hours 223,581 224,206 237,081 261,412 218,13_ (round to 1,000's) III. Please answer the following questions regarding your safetyprogram a. Are regular project safety meetings held for Field Supervisor(s)? dyes _no If yes, frequency: Xweekly _bi-monthly _monthly as needed b. Are project safety inspections conducted? )(yes no If yes,who performs inspections? Superintendent How often? Daily Who is required to attend? Superintendent c. Does your organization have a written safetyprogram? Ryes no If yes,provide a copy. It will become a compliance document upon contract award. Due to page volume, our Safety Manual is included as a separate document. SpawGlass Response 28 Shadow Creek Library August 29, 2019 CONSTRUCTION MANAGER'S SAFETY RECORD-CONTIUNED d. Does your organization have a safety orientation program for new employees? Ryes no For employees promoted to Field Supervisor? Lyes no If yes,does your Supervisor Safety Program include instructions on the following: Safety work practices CO no Tool box safety meetings 02k, no First aid procedures VS> no Accident investigation CM no Fire protection Cif> no New worker's orientation AZ, no SpawGlass Response 29 Shadow Creek Library August 29, 2019 CONTRACTOR'S QUALITY CONTROL PROGRAM I. Submit a complete quality control program which will become a compliance document upon contract award. Due to page volume, our Quality Control Manual is included as a separate document. IL This plan should address all aspects of quality control including responsibility for surveillance work, acceptance,rejection, documentation and resolution of deficiencies, trend analysis and corrective action and interface with City's inspectors. SpawGlass Response 30 Shadow Creek Library August 29,2019 CONSTRUCTION MANAGER'S FINANCIAL RESOURCES Submit your last audited financial statement and most current financial statement. Due to page volume and their confidential nature, our financials are included as a separate attachment. SpawGlass Response 31 Shadow Creek Library August 29, 2019 CONSTRUCTION MANAGER'S PROPOSAL FORM Date: 08/29/19 PROPOSALFROM: SpawGlass Construction Corporation PROPOSAL TO: City of Pearland, Texas 3523 Liberty Drive Pearland, TX 77581 PROJECT CONSTRUCTION BUDGET: The Undersigned proposes to furnish all labor, design consultation services, tools, equipment and management associated with the Pre-Construction phase ofthe project to construct Shadow Creek Library and to perform the work required for construction of said building, at the location set out by the Plans and Specifications, in strict accordance with the Fees established herein below. Construction Manager agrees to furnish the City, no later than 90% completion of Construction Documents a Guaranteed Maximum Price for the cost ofthe construction of the project. In submitting this Proposal, it is understood that this Proposal may not be altered or withdrawn for ninety(90)days, and that the Owner has reserved the right to reject any and all Proposals. The Undersigned certifies that this Proposal is made in good faith, without collusion or connection with any other person, persons, partnership, company, firm, association, or corporation offering Proposals on this work, for the following sum or prices to wit: 1. PRECONSTRUCTION FEE For all pre-construction phase services including pre-planning, design consulting, cost estimating, scheduling, value engineering, constructability reviews; the total cost for these services list the lump sum amount: Dollars$ 36,520 2. GENERAL CONDITIONS Proposed cost for General Conditions to accommodate the onsite staff These items will include, but not be limited to, office trailers, phones, furniture, copiers, computers, software, supplies, cleaning, move in/move out, printing expenses, site personnel's radios, pagers, phones, etc. construction manager's required equipment, insurance premiums, and other items specifically provided for in Attachment 1 Dollars$ 823,313 3. CONSTRUCTION MANAGER AT RISK FEE List your proposed fee as a percentage of construction cost including all overhead and profit: Percent% 3.00 4. NUMBER OF PROPOSED CONSTRUCTION DAYS List proposed number of calendar days from the Notice to Proceed that should be sufficient time for performing all work: Days 360 ** **Construction Duration will need to be revisited once design further design information is available. Construction duration is contingent upon an early site,foundation,and structure package be developed so that structural steel and site work may commence prior to the completion of the construction documents. SpawGlass Response 32 Shadow Creek Library August 29,2019 RECEIPT OF ADDENDA Addendum No. 1, 08/15/2019 I hereby acknowledge receipt ofthe following Addenda: Addendum No. 2, 08/22/2019 Brandon Meyers, President, Houston Division CONSTRUCTION MANAGER'S NAME: SoawGlass Construction Corp. CONSTRUCTION MANAGER'S SIGNATURE: ZAawoCL--✓(` a,1 SpawGlass Response 33 ATTACHMENT 1 GENERAL CONDITIONS DETAIL $Cost/Unit Including DESCRIPTION QTY UNIT All Burden TOTAL &Insurance,Etc. On Site Project Management Project Executive 0 MO $ - $ - Project Manager 12 MO $ 13,728 $ 164,737 Superintendent(s) 12 MO $ 13,131 $ 157,575 Asst.Superintendent/Quality Control 12 MO $ 8,655 $ 103,856 Office Engineer(s) 0 MO $ - $ - Project Expeditor 0 MO $ - $ - Scheduler 0 MO $ - $ - Project Support Staff 0 MO $ - $ - Cost Engineer 0 MO $ - $ - BIM Manager** 1.5 MO $ 11,341 $ 17,011 Bonds and Insurance GL,Auto,WC&Builders Risk 1 LS S 145,250 $ 145,250 Payment&Performance Bonds 1 LS S 123,900 $ 123,900 Temporary Project Construction and Utilities for CM Staff Dumpsters or CM staff 12 MO $ 38 460 Monthly Telephone Service(Cell Phones) 12 MO $ 293 3,518 Project Water 12 MO $ 539 6,472 Temporary Toilets 12 MO $ 271 3,248 Temporary Fire Protection 12 MO $ 365 4,384 Telephone System Installation 0 LS $ - $ - Ceremonies 1 LS $ 2,500 2,500 Field Offices&Office Supplies for CM Staff Job Photos and Videos 12 MO $ 517 6,200 CM Project Specific Signage 1 LS $ 4,509 4,509 Postage and Deliveries , 12 MO $ 162 1,949 Mobilization for Office Trailers 1 LS $ 8,904 8,904 Monthly Office Rental Costs - 12 MO $ 1,624 19,485 Storage Trailers 12 MO $ 289 3,464 Field Office Equipment 12 MO $ 70 839 Vehicles including Fuel,Maintenance&Ins 0 MO $ - $ - Safety Equipment 12 MO $ 352 4,222 First Aid Supplies , 12 MO $ 271 3,248 Job Office Supplies 12 MO $ 433 5,196 Janitorial Supplies (In Above) 0 MO $ - $ - Project Computers and Software 12 MO $ 796 9,548 Field Office Furniture 12 MO $ 135 1,624 Copy Machine and Supplies 12 MO $ 866 10,392 Communications Equipment (Internet Service) 12 MO $ 722 8,660 Advertising 12 LS $ 180 2,165 TOTAL GENERAL CONDITIONS $ 823,313 **Added per Addendum#2 SpawGlass Response 34 C F--I L_) B 9 Surety 0 +908.903.3485 202B Halls Mill Road,PO Box 1650 F +908.903.3656 Whitehouse Station,NJ 08889-1650 Federal Insurance Company ALA Document A31OTM- 2010 Bid Bond Any singular reference to Contractor,Surety,Owner or other party shall be considered plural where applicable. CONTRACTOR SURETY (Name,legal status and address): (Name,legal status and principal place of business): SpawGlass Construction Corp. Federal Insurance Company 13800 West Road 202B Halls Mill Rd., PO Box 1650 Houston, TX 77041 OWNER Whitehouse Station, NJ 08889-1650 (Name,legal status and address): City of Pearland, Texas 3523 Liberty Drive Pearland, TX 77581 BOND AMOUNT Five Percent of Greatest Amount Bid (5% GAB) PROJECT Shadow Creek Library (Name,location or address,and Project number,if any) RFP No. 0519-40 Project No. FA1805 The Contractor and Surety are bound to the Owner in the amount set forth above, for the payment of which the Contractor and Surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally,as provided herein. The conditions of this Bond are such that if the Owner accepts the bid of the Contractor within the time specified in the bid documents, or within such time period as may be agreed to by the Owner and Contractor, and the Contractor either (1)enters into a contract with the Owner in accordance with the terms of such bid, and gives such bond or bonds as may be specified in the bidding or Contract Documents, with a surety admitted in the jurisdiction of the Project and otherwise acceptable to the Owner,for the faithful performance of such Contract and for the prompt payment of labor and material furnished in the prosecution thereof;or(2)pays to the Owner the difference,not to exceed the amount of this Bond, between the amount specified in said bid and such larger amount for which the Owner may in good faith contract with another party to perform the work covered by said bid,then this obligation shall be null and void, otherwise to remain in full force and effect. The Surety hereby waives any notice of an agreement between the Owner and Contractor to extend the time in which the Owner may accept the bid. Waiver of notice by the Surety shall not apply to any extension exceeding sixty(60)days in the aggregate beyond the time for acceptance of bids specified in the bid documents,and the Owner and Contractor shall obtain the Surety's consent for an extension beyond sixty(60)days. If this Bond is issued in connection with a subcontractor's bid to a Contractor,the term Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. Printed in cooperation with the American Institute of Architects(AIA)by Chubb. The language in this document conforms to the language used in AL4 Document A310""-2010. Form 15-02-0575-FED Otev.3/17) 1 When this Bond has been furnished to comply with a statutory or other legal requirement in the location of the Project, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted here from and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. When so furnished,the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. Signed and sealed this 26th day of August, 2019. SpawGlass Construction Corp._ (Witness) Angela D. White (Principal) (Title) Brandon Meyer , President Houston Division (Corporate Seal) Federal Insurance Company (witness) Darlene Mitchell (Attonte .in-Fa arry D. Snider (Corporate Seal) Printed in cooperation with the American Institute of Architects(AIA)by Chubb. The language in this document conforms to the language used in AMA Document A310 r"-2010. Form 15-02-0575•FED(Rev.3/17) 2 CHUBS` Power of Attorney Federal insurance Company I Vigilant Insurance Company I Pacific Indemnity Company Know All by These Presents.That FEDERAL INSURANCE COMPANY,an Indiana corporation.VIGILANT INSURANCE COMPANY,a New York corporation,and PACIFIC INDEMNITY COMPANY. a Wisconsin corporation, do each hereby constitute and appoint Norman E. Adams, Michael Macomber, John A. Prince and Larry D.Snider of Houston,Texas each as their true and lawful Attorney-In-Fact to execute under such designation in their names and to affix their corporate seals to and deliver for and on their behalf as surety thereon or otherwise,bonds and undertakings and other writings obligatory in the nature thereof(other than bail bonds)given or executed in the course of business,and any instruments amending or altering the same,and consents to the modification or alteration of any instrument referred to in said bonds or obligations. In Witness Whereof,said FEDERAL INSURANCE COMPANY,VIGILANT INSURANCE COMPANY,and PACIFIC INDEMNITY COMPANY have each executed and attested these presents and affixed their corporate seals on this 3RD day of September,2018. f. C1.1151,---TV). eSKICAZ‘ ?Art:A/2— bA'k uk, I ktv,n M.Chh iri is.Asii'lan I Secretary Stephen NI.Haney.Vice Presi den i 400'. i , flit. . STATE OF NEW JERSEY County of Hunterdon 5s On this 3'D day of September,2018,before me,a Notary Public of New Jersey.personally came Dawn M.Chioros,to me known to he Assistant Secretary of FEDERAL INSURANCE COMPANY.VIGILANT INSURANCE COMPANY,and PACIFIC INDEMNITY COMPANY,the companies which executed the foregoing Power of Attorney,and the said Dawn M. Chioros,being by me duly sworn,did depose and say that she is Assistant Secretary of FEDERAL INSURANCE COMPANY,VIGILANT INSURANCE COMPANY,and PACIFIC INDEMNITY COMPANY and knows the corporate seals thereof,that the seals affixed to the foregoing Power of Attorney are such corporate seals and were thereto affixed by authority of said Companies;and that she signed said Power of Attorney as Assistant Secretary of said Companies by like authority;and that she is acquainted with Stephen M. Haney,and knows hint to he Vice President of said Companies;and that the signature of Stephen M.Haney,subscribed to said Power of Attorney Ls in the genuine handwriting of Stephen M.Haney,and was thereto subscribed by authority of said Companies and in deponents presence. 4 Notarial Scai 1s• •,1 , KATHERINE J.ADELM 4 OTAgp NOTARY PUBLIC CP NEW JERSEY . PUtl1C Corn nusbn Exp ns Joy f e,2018 Notary tattle `Air tit' CERTIFICATION Resolutions adopted by the Boards of Directors of FEDERAL INSURANCE COMPANY.VIGILANT INSURANCE COMPANY,and PACIFIC INDEMNITY COMPANY on August 30,2016: "RESOLVED,that the following authorizations relate to the execution.for and on behalf of the Company.of bonds.undertakings,recognizances,contracts and other written commitments of the Company entered into in the ordinary course of business leach a"Written Commitment"). (I) Each of the Chairman,the President and the Vice Presidents of the Company is hereby authorized to execute any Written Commitment for and on behalf of the Company,under the seal of the Company or otherwise (2) Each duly appointed attorney-itriact of the Company is hereby authorized to execute any Written Commitment for and on behalf of the Company,under the seal of the Company or otherwise,to the extent that such action Is authorized by the grant of powers provided for in such persons written appointment as such attorney-in-fact (3) Each of the Chairman.the President and the Vire Presidents of the Company is hereby authorized,for and on behalf of the Company,to appoint in writing any person the attorney- in-fact of the Company with full power and authonty to execute,for and on behalf of the Company.under the seal of the Company or otherwise,such Written Conunitntents of the Company as nay be specified in such written appointment.which specification may be by general type or class of Written Conmdtntenis or by specification of one or more particular Written Commitments (4) Each of the Chain-tun.the President and the Vice Presidents of the Company is hereby authorized fur and on behalf of the Company,to delegate in writtng to any other officer of the Company the authority to execute.for and on behalf of the Company.under the Company's seal or otherwise,such Written Commitments of the Company as are specified in such written delegation.which specification may be by general type or class of Written Commitments or by specification of one or more particular Written Commitments (5) The signature of any officer or other person executing any Written Commitment or appointment or delegation pursuant to this Resolution,and the seal of the Company,may be affixed by facsimile on such Written Commitment or written appointment or delegation FY)RTHER RESOLVED, that the foregoing Resolution shall not be deemed to be an exclusive statement of the powers and authority of officers.employees and other persons to act for and on behalf of the Company,and such Resolution shall not limit or otherwise affect the exercise of any such power or authority otherwise validly granted or vested" I,Dawn M.Chioros,Assistant Secretary of FEDERAL.INSURANCE COMPANY,VIGILANT INSURANCE COMPANY,and PACIFIC INDEMNITY COMPANY(the-Companies")do hereby certify that (i) the foregoing Resolutions adopted by the Board of Directors of the Companies are true,correct and in full force and effect. (II) the foregoing Power of Attorney is tnte,correct and in frill force and effect. Given under my hand and seals of said Companies at Whitehouse Station,NJ,this 26th day of August, 2019. 46 a .- i %1.t . i�c MTh. 6,..... tic. 4 :y [kiwi NI.Chinn b.,A`dsutniSocrrtat' ' IN THE,EVENT YOU µ9SH TO VERIFY THE Al THENTICITY OF THIS BOND OR NOTIFY I IS OF ANY OTHER MATTER,PLEASE CONTACT CIS AT: Telephone(908)903-3493 Fax(908)903.3656 e-rttail:suretyytrchubb.cont FED-VIG-PI(rev 08-18) _ CITY OF PEARLAND STANDARD FORM OF AGREEMENT BETWEEN CITY AND CONSTRUCTION MANAGER AT RISK This Agreement is entered into by and between the City of Pearland,a Texas home-rule municipal corporation(the"City")and SpawGlass Construction a Texas corporation(the "Construction Manager"or Contractor")for the construction of City of Pearland, Shadow Creek Ranch Library. SECTION 1. GENERAL PROVISIONS 1.1 Relationship of the Parties. 1.1.1 The Construction Manager accepts the relationship of trust and confidence established with the City by this Agreement, and covenants with the City to furnish the Construction Manager's reasonable skill and judgment and to cooperate with the Architect in furthering the interests of the City. The Construction Manager shall furnish construction administration and management services and use the Construction Manager's best efforts to perform the Project in an expeditious and economical manner consistent with the interests of the City. The City shall endeavor to promote harmony and cooperation among the City, Architect, Construction Manager and other persons or entities employed by the City for the Project. 1.2 General Conditions. 1.2.1 Basic Definitions. 121.1 Addenda.Addenda are written or graphic instruments issued prior to the execution of the Contract, which modify or interpret the proposal documents, including Drawings and Specifications, by additions, deletion, clarification or corrections. Addenda will become part of the Contract Documents when the Agreement is executed. 12.12 Approved. Approved Equal and Approved Equivalent, or Equal relate to the substitution of materials, equipment or procedure approved in writing by the Architect prior to receipt of proposals. The substitution procedure process to be followed prior to receipt of competitive sealed proposals is described in the instruction to proposers. 1213 Calendar Day. A"calendar day"is any day of the week or Month or year,no days being excepted.Unless otherwise expressly provided,all references to"day(s)"shall mean Calendar Day(s). 1214 City/City Representative. Whenever the word"City" is used, it shall mean and be understood as referring to the City of Pearland,Texas. The word"Owner" shall refer to the same entity and may be used interchangeably. Whenever the words "City's Representative"or"Representative"are used, it shall mean and be understood as referring to the City Project Manager or his delegate, who shall act as the City's agent. The City's ) Representative may inspect and issue instructions but shall not directly supervise the Contractor. The City's inspector has authority to reject the Work for failure to comply with the Contract Documents and/or applicable laws. 3 1215 Contract Definitions: The term "Contract Documents" shall mean those documents listed in Paragraph 1.3. The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a written Modification. The Contract Documents shall not be construed to create a contractual relationship of any kind(1)between the Architect and Contractor, (2) between the City and a Subcontractor or Sub-subcontractor,(3)between the City and Architect or(4)between any persons or entities other than the City and Contractor. The Architect shall be entitled,however,to performance and enforcement of obligations of the Contractor under the Contract intended to facilitate performance of the Architect's duties. 12.1.6 Contractor. Whenever the word "Contractor" is used, it shall mean the person(s), partnership, or corporation who has agreed to perform the work embraced in this Agreement and the other Contract Documents; specifically it shall mean the Construction Manager. 121.7 Contract Time. The period of time which is established in the Contract Documents for Substantial Completion of the Work. This period of time shall be accounted for in Calendar Days, as defined above, and is not subject to adjustment or extension without the written agreement of the City.The following definitions shall apply to Contract Time calculations: a. Work Day: As used herein, a "Work Day" is defined as any Monday through Friday, not a legal holiday, and any Saturday or Sunday specifically approved by the OWNER, in which the CONTRACTOR can perform six or more hours of work per the current construction schedule. CONTRACTOR agrees to request specific approval from the Construction Manager or Owner, in advance,to perform work on Saturdays or Sundays and in so doing agrees to pay all charges and costs for Inspection and or Construction Management services required during the performance of any such approved work. b. Rain Day: As used herein, is defined as any WORK DAY during which weather related conditions prevent the CONTRACTOR from performing four(4)or more consecutive hours of work on critical path items as identified in the current construction schedule. CONTRACTOR shall record Rain Days on the Pay Application each month for the review and possible approval by the OWNER. The approved Rain Day is then added to the Contract Time. c. IMPACT DAY: As used herein, is a day that is added to the CONTRACT TIME by the OWNER by Change Order to extend the Contract Time by one full Work Day. Impact Days, once approved by the OWNER, shall extend the Contract Time on a one-to-one basis to replace a Work Day lost to conditions that prevented the CONTRACTOR from performing four (4) or more consecutive hours of work on critical path items. Impact Days are added to the Contract Time by Change Order only at the end of the (^`') work and then only if, in the opinion of the OWNER, a 4 time extension is warranted due to delays beyond the control of the Contractor and required to complete the work within the Contract Time 121.8 Drawings.The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location and dimensions of the Work, generally including plans,elevations,sections,details,schedules and diagrams. 1219 Extra Work.The term"Extra Work"shall mean and include work that is not covered or contemplated by the Contract Documents but that may be required by the City's Representative and approved by the City in writing prior to the work being done by the Contractor. 121.10 Final Completion. The term"Final Completion" shall mean that all the work has been completed, all final punch list items have been inspected and satisfactorily completed, all payments to material suppliers and subcontractors have been made,all documentation and warranties have been submitted, and all closeout documents have been executed and approved by the City. 121.11 Interpretation of Phrases. Whenever the words "directed", "permitted", "designated", "required", "considered necessary", "prescribed", or words of like import are used, it is understood that the direction, requirement, permission, order, designation, or prescription of the City's Representative is intended. Similarly, the words "approved", "acceptable", "satisfactory", or words of like import shall mean approved by, accepted by, or satisfactory to the City's Representative. In the interest of brevity the Contract Documents may omit modifying words such as "all"or"any" and articles such as "the" and "an", but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. 121.12 Nonconforming work. The term "nonconforming work" shall mean work or any part thereof that is rejected by the City's Representative as not conforming with the ContractDocuments. 121.13 Notice to Proceed. A notice that may be given by the Owner to the Contractor that directs the Contractor to start the Work. 121.14 Partial Substantial - Completion. Designation of Partial substantial Completion may be provided on components of the Work that must be placed into service prior to the completion of the entire Work.The contractor's One Year Warranty period for these items shall begin on the date of Partial Substantial Completion as designated by the Architect. The Architect shall determine and make all such designations. 121.15 Parties. The"parties" are the City and the Contractor. 121.16 Project. The term "Project" shall mean and include all that is required to obtain a final product that is acceptable to the City. The term"work"shall have like meaning. The Project is the total construction of which the Work performed under the Contract Documents may be the whole or a part and which may include construction by the 5 City or by separate contractors. 121.17 ProTrak.As used herein describes the City's project management software used to enhance communications between the project team members. All product submittals, RFI's, RFPs, plan sheet changes, plans and specs are held and available to all team members within this web-based software. All payment applications are made and approved within the software. All team members will be given access and will use this , software platform for project document transmittals. 121.18 Punch List. A comprehensive list prepared by the City prior to Substantial Completion to establish all items to be completed or corrected; this list may be supplemented by the Architect or the City. 121.19 Specifications.The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work,and performance of related services.Organization of the Specifications into divisions,sections and articles,and arrangement of drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. 12120 Subcontractor.The term"subcontractor"shall mean and include only those hired by and having a direct contact with Contractor for performance of work on the Project. The City shall have no responsibility to any subcontractor employed by a Contractor for performance of work on the Project, and all subcontractors shall look exclusively to the Contractor for any payments due. 12121 Substantial Completion. The term "Substantially Completed" means that in the sole discretion of the City's Representative, the Project, including all systems and improvements, is in a condition to serve its intended purpose but still may require minor miscellaneous work and adjustment. Final payment of the Agreement Price, including retainage, however, shall be withheld until Final Completion and acceptance of the work by the City. Acceptance by the City shall not impair or waive any warranty obligation of Contractor. 12122 Work. The term "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor,materials,equipment and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project. The Work includes all labor, parts, supplies, skill, supervision, transportation, services, and other facilities and things necessary,proper or incidental to the carrying out and completion of the terms of the Contract Documents and all other items of cost or value needed to produce, construct and fully complete the Work identified by the Contract Documents. 12123 Unless otherwise stated in the Contract Documents, words which have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. 6 rr 1.3 Contract Documents. 1.3.1 The Contract Documents and their priority shall be as follows: 13.1.1 This signed Agreement 13.12 Addendum to this Agreement 13.13 ' Special Conditions 13.14 Technical specifications 13.15 Drawings 13.1.6 Instructions to Bidders and any other notices to Bidders or Contractor 13.1.7 Performance bond,Payment bonds,Bid bonds and Special bonds 13.1.8 Contractor's Proposal 1.3.2 Where applicable, the Contractor will be furnished one (1) CD of plans, drawings, specifications, and related Contract Documents for its use during construction. Plans and specifications provided for use during construction shall be furnished directly to the Contractor only. 1.3.3 The Contractor shall distribute copies of the plans and specifications to suppliers and subcontractors as necessary. The Contractor shall keep one (1) copy of the plans and specifications accessible at the work site with the latest revisions noted thereon. For proper execution of the work contemplated by this Agreement. 1.3.4 All drawings,specifications,and copies thereof furnished by the City shall not be re-used on other work,and with the exception of one(1)copy of the signed Contract Documents, all documents, including sets of the plans and:specifications and"as built"drawings, are to be returned to the City on request at the completion of the work. All Contract Documents, models, mockups, or other representations are the property of the City. In the event of inconsistencies within or between parts of the Contract Documents, the Contractor shall (1) provide the better quality or greater quantity of Work, or (2) comply with the more stringent requirement,either or both in accordance with the City's interpretation. 1.4 Owner. 1.4.1 The Owner (or City) is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Owner" means the City of Pearland or the City's authorized representative. The terms "Owner"and"City"may be used interchangeably throughout this Agreement. 1.4.2 The presence of the City or Architect at the Work site does not imply 7 acceptance or approval of Work. 1.4.3 Information And Services Required Of The Owner. 143.1 Information or services reasonably necessary for the Work and under the City's control shall be furnished by the City with reasonable promptness where requested in writing by the Contractor. In any instance where information or servicesfrom the City or Architect is required,Contractor shall promptly notify the Architect in writing, with a copy to the City,of the particular need.Absent such notification,any Claim based upon lack of such information or services shall be waived. 1.4.4 Owner's Right to Stop the Work. 1441 If the Contractor fails to correct Work which is not in accordance with the requirements of the Contract Documents as required by Paragraph 1.14.2. or persistently fails to carry out Work in accordance with the Contract Documents, the City may issue a written order to the Contractor to stop the Work,or any portion thereof,, until the cause for such order has been eliminated; however,the right of the City to stop the Work shall not give rise to a duty on the part of the City to exercise this right for the benefit of the Contractor or any other person or entity. 1.4.5 Owner's Right to Carry Out the Work. 145.1 If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a seven-day period after receipt of written notice from the City to commence and continue correction of such default or neglect with diligence and promptness, the City may, without prejudice to other remedies the City may have,correct such deficiencies. In such case an appropriate Change Order shall be issued deducting from payments then or thereafter due the Contractor the cost of correcting such deficiencies, including compensation for the Architect's additional services made necessary by such default, neglect or failure. If payments then or thereafter due the Contractor are not sufficient to cover such amounts,the Contractor shall pay the difference to the City. 1452 After the Work is complete, the City may make emergency repairs to the Work, if necessary, to prevent further damage, or if the Contractor does not promptly respond to a notice of condition requiring repairs. Contractor shall be responsible to City for this cost if the repairs are due to the Contractor's defective Work. If payments then or thereafter due the Contractor are not sufficient to cover such costs, the Contractor shall pay the difference to the City. 1.4.6 Owner's Right to Use or Occupy. 14.6.1 The City shall have the right to occupy or use without prejudice to the right of either party, any completed or largely completed portions of the Project, notwithstanding the time for completing the entire Work or such portions may not have expired. Such occupancy and use shall not constitute acceptance of any Work not in accordance with theContract Documents. 1.5 Contractor. 8 • 1.5.1 The Contractor is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Contractor"means the Contractor or the Contractor's authorized representative. 1.5.2 The Contractor shall perform the Work in accordance with the Contract Documents 1.5.3 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either by activities or duties of the Architect in the Architect's administration of the Contract, or by tests, inspections or approvals required or performed by persons other than the Contractor. 1.5.4 Review of Contract Documents and Field Conditions by Contractor. 1541 The Contractor shall carefully study and compare the Agreement, Conditions of the Contract, Drawings, Specifications, Addenda, and Modifications and shall at once report to the Architect any error,inconsistency, or omission the Contractor discovers. These obligations are for the purpose of facilitating construction by the Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents; however, any errors, inconsistencies or omissions discovered by the Contractor shall be reported promptly to the Architect as a request for information in such form as the Architect may require. If the`Contractor performs any construction activity knowing it involves a recognized error, inconsistency or omission in the Contract Documents without such notice to the Architect,the Contractor shall assume responsibility for such performance and shall pay the total amount of the attributable costs for correction. Contractor shall not be liable to City or Architect for any damage resulting from such error,inconsistency or omission which Contractor should not have discovered or which Contractor did discover and at once so reported. Contractor shall do no Work without approved Drawings and Specifications marked Issued for Construction. 1542 If the Contractor fails to perform the obligations of Paragraph 1.5.4.1., the Contractor shall pay such costs and damages to the City as would have been avoided if the Contractor had performed such obligations. 1543 The Contractor shall not be entitled to additional compensation for the"rework portion" of any additional work caused by its failure to carefully study and compare the Contract Documents prior to execution of the Work. 1544 The Contractor shall make a reasonable attempt to interpret the Contract Documents before asking the Architect for assistance in interpretation. The Contractor shall not ask the Architect for observance of work prior to the Contractor's field superintendent's personal inspection of the Work and his determination that the Work complies with the Contract Documents. The Contractor shall arrange meetings prior to commencement of the Work of all major Subcontractors to allow the Subcontractor(s) to ask for any interpretation it may require. 1545 If, in the opinion of the Architect, the Contractor does not make a reasonable effort to comply with the above requirements of the Contract Documents 9 and this causes the Architect or its Consultants to expend an unreasonable amount of time in the discharge of the duties imposed on the Architect by the Contract Documents,then the Contractor shall bear the cot of compensation for the Architect's additional services made necessary by such failure. The Architect will give the Contractor prior notice of intent to bill for additional services related to above requirements before additional services are performed. 1546 If the Contractor has knowledge that any-of the products or systems specified will perform in a manner that will limit the Contractor's ability to satisfactorily perform Work or to honor Contractor's Warranty, Contractor shall promptly notify the Architect, in writing, providing substantiation for Contractor's position. Any necessary changes,including substitution of materials,shall be accomplished by appropriate Modification. 1.5.5 Supervision and Construction Procedures. 155.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention.The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters. If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques,sequences or procedures.If the Contractor determines that such means,methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely, written notice to the City and Architect and shall not proceed with that portion of the Work without further written instructions from the Architect. 1552 The Contractor shall be responsible to the City for acts and omissions of the Contractor's employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for or on behalf of the Contractor or any of its Subcontractors. It is understood and agreed that the relationship of the Contractor to City shall be that of an independent contractor. Nothing contained herein or inferable here from shall be deemed or construed to(1)make Contractor the agent,servant or employee of the City, or(2)to create any partnership,joint venture, or other association between City and Contractor. Any direction or instruction by City or any of its authorized representatives in respect of the Work shall relate to the results the City desires to obtain from the Work, and shall in no way affect Contractor's independent contractor status described herein. 1553 The Contractor shall be responsible for inspection of portions of Work already performed to determine that such portions are in proper condition to receive subsequent Work. 1554 Contractor shall execute the Work in a good and workmanlike manner, continuously and diligently in accordance with generally accepted standards of construction management and practice for construction of projects similar to the Project, 10 using qualified, careful and efficient workers and in conformity with the provisions of this Contract and the other Contract Documents. 1.5.6 Labor and Materials. 15.6.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work,whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. 15.62 The Contractor may make substitutions only with the consent of the City,after evaluation by the Architect and in accordance with a Change Order. 15.63 The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Contract. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. 1.5.7 Warranty. 15.7.1 The Contractor warrants to the City and Architect that materials and equipment furnished under the Contract will be of good quality and new unless otherwise required or permitted by the Contract Documents,that the Work will be free from defects not inherent in the quality required or permitted, and that the Work will conform to the requirements of the Contract Documents and recognized industry standards. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Contractor,improper or insufficient maintenance (unless such maintenance is Contractor's responsibility), improper operation, or normal wear and tear. If required by the Architect, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment.The warranties set out in this Paragraph are not exclusive of any other warranties or guarantees set out in other places in the Contract Documents or implied under applicable law. 15.72 Prior to final payment, Contractor shall furnish any manufacturer warranties required by the Contract Documents. 15.73 When deemed necessary by the City, and prior to installation of any items specifically made subject to a performance standard or regulatory agency standard under any provision of the Contract Documents, Contractor shall furnish proof of conformance to the Architect. Proof of Conformance shall be in the form of(1)an affidavit from the manufacturer certifying that the item is in conformance with the applicable standard,(2)an affidavit from a testing laboratory certifying that the product has been tested within the past year and is in conformance with the appreciated standard, or(3)such further reasonable proof as required by the Architect. 15.74 The warranties of Contractor provided in Subparagraph 11 1.5.7.1. shall in no way limit or abridge the warranties of the suppliers of equipment and system which are to comprise a portion of the Work and all of such warranties shall be in form and substance as required by the Contract Documents. Contractor shall take no action or fail to act in any way which results in the termination or expiration of such third party warranties or which otherwise results in prejudice to the rights of City under such warranties. Contractor agrees to provide all notices required for the effectiveness of such warranties and shall include provisions in the contracts with the providers and manufacturers of such systems and equipment whereby the City shall have a direct right, but not.a duty, of enforcement of such warranty obligations. 15.75 In the event of failure of materials,products, or workmanship; either during construction or the warranty period(which shall be one(1)year from the Date of Final Completion, except where a longer period is specified), the Contractor shall take appropriate measures to assure correction or replacement of the defective items, whether notified by the City or Architect. 15.7.6 Approximately eleven (11) months after Substantial Completion, the Contractor shall accompany the City and Architect on a complete inspection of the Project and be responsible for correcting any observed or reported deficiencies within thirty(30)calendar days. 1.5.8 Permits.Fees and Notices. 15.8.1 Unless otherwise provided in the Contract Documents, the Contractor shall establish an Allowance in the GMP for the payment for gas, electric utility connections to the project. Owner shall pay the Contractor the direct costs of these connection fees as determined by the Utility's Terms and Conditions statement. 15.82 Water and Sewer utilities will be established and service provided at no-charge to the contractor.However the contractor may provide the site with a'temporary "hydrant meter"obtainable from the Public Works department for the refundable deposit of $1,425.00 plus a non-refundable$75.00 setting fee. 15.83 Upon acceptance of the project as Substantially Complete the Owner and Contractor shall arrange for the transfer of all utilities to the Owner's account.To avoid any interruption of critical utility services,Contractor shall notify Owner 60 days prior to anticipated transfer date.Owner shall immediately make arrangements to establish accounts as necessary to transfer billing within a seven day window of the scheduled date. Should transfer of utility billing be delayed through no fault of Contractor,Owner shall pay Contractor a daily utility rate equal to the charges accrued between planned transfer date and date of actual transfer. 15.84 The Contractor shall include and pay for any inspections necessary for proper execution and completion of the Work which are customarily secured after execution of the Contract and which are legally required when bids are received or negotiations concluded. All permit fees for the project shall be the responsibility of the Owner. The City will not charge inspection fees for inspection services provided by its internal forces. 15.85 The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations and lawful orders and all other requirements of public authorities applicable to performance of the Work. The Contractor shall procure and obtain all bonds required of the City or the Contractor by the Contract Documents. In connection 12 %� with such bonds, the Contractor shall prepare all applications, supply all necessary back-up material, and furnish the surety with any required information. The Contractor shall also obtain and pay all charges for all approvals for street closing and other similar matters as may be necessary or appropriate from time to time for the performance of the Work. 15.8.6 It is not the Contractor's responsibility to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, building codes, and rules and regulations. However, if the Contractor observes that portions of the Contract Documents are contrary therewith, the Contractor shall promptly notify the Architect and City in writing, and necessary changes shall be accomplished by appropriate Modification. 15.8.7 If the Contractor performs Work which it knows to be contrary to applicable laws, statutes, ordinances, building codes, and rules and regulations and fails to provide such notice to the Architect and City, the Contractor shall be liable for any cost incurred by the City due to the failure to provide notice and shall promptly remediate any and all work identified to be in violation. 15.8.8 The Contractor shall be responsible for timely notification to and coordination with all utility companies regarding the provision of or revising of services to the Project. The Contractor shall inform the Architect at once when the City's participation is required. Connections for temporary and permanent utilities required for the Work are the responsibility of the Contractor. Payment for temporary and/or permanent utility services through Substantial Completion of the Work shall be the responsibility of the Contractor. 1.5.9 Allowances. 159.1 Material and Equipment Allowances: The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents or identified in the development of the GMP. These stated allowances represent the cost estimate of the materials and equipment delivered and unloaded at the site. The Contractor's installation labor, overhead, profit, and other expenses contemplated for the allowance material and equipment shall be included in allowance only where called for in the Contract Documents. The Contractor shall purchase the allowance materials and equipment as directed by the Architect on the basis of the lowest responsive bids of at least three (3) competitive bids. If the actual cost of the material and equipment delivered and unloaded at the site is more or less than the individual allowance estimate, upon City approval the Contract Sum will be adjusted accordingly by Change Order. The amount of the Change Order shall reflect (1) the difference between actual costs and the allowances under Paragraph 1.5.9.1 and (2) changes in Contractor's costs, subject to the limitations set forth at Paragraph 1.9.2.1(c). 1592 Materials and equipment under an allowance shall be selected with reasonable promptness by the City to avoid delays in the Work (provided that if a decision is needed by a certain date to avoid delay, Contractor shall notify Architect in writing sufficiently in advance of the needed date to allow reasonable time for selections). 13 1593 Utility Connection Allowances: The Contractor shall include in the Contract Sum Utility Connection allowances stated in the Contract Documents or identified in the development of the GMP. These stated allowances represent the cost estimate of the Terms and Conditions of the Utility to perform the installation of materials and equipment of the site to provide the project with the subject utility. The Contractor's labor, overhead, profit, if any, contemplated for the Utility allowance shall be included in allowance only where called for in the Contract Documents. If the actual cost of the utility connection fees is more or less than the individual allowance estimate, upon City approval the Contract Sum will be adjusted accordingly by Change Order. 1.5.10 Superintendent. 15.10.1 The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work. The superintendent shall represent the Contractor, and communications given to the superintendent shall be as binding as if given to the Contractor. Important communications shall be confirmed in writing.Other communications shall be similarly confirmed on written request in each case. Notwithstanding the foregoing, Contractor shall keep on the job the superintendent approved by City who shall not be transferred from the Project without City's consent (which shall not be unreasonably withheld). However, such obligation to furnish the superintendent shall not be construed(1) to preclude the promotion within Contractor's organization of any person assigned to the Project or (2) to give rise to any liability of Contractor if any person assigned to the Project leaves Contractor's employ. If City reasonably determines that any employee of Contractor or of its Subcontractors is careless or not qualified to perform the Work assigned to him, and City and Contractor cannot, after a diligent and good faith attempt, agree what action should be taken with respect to the removal or reassignment of such employees, the Contractor shall promptly remove such employee from the Project and replace such employee. At all times while procurement activities are being performed in Contractor's office, Contractor shall appoint an individual (approved by City, acting reasonably) authorized to act on behalf of Contractor and with whom City may consult at all reasonable times, and who shall be authorized to receive the instructions, requests and decisions of City. All of Contractor's and Subcontractor's personnel shall comply with all applicable health, safety, and loss prevention rules of applicable authorities. Contractor shall, at its own expense, remove from the Project any person who fails to comply with such rules and instructions in any material respect. 1.5.11 Contractor's Construction Schedules. 15.11.1 The Contractor shall, promptly after executing the Contract, develop a construction schedule reasonably defining a plan for completing the Work within the required time. The format and detail of the schedule shall be in keeping with the size and complexity of the Project, and the schedule and all subsequent updates shall be subject to the approval of the City and Architect. The schedule and any updates shall not exceed time limits current under the Contract Documents including granted time extensions, and shall be revised at appropriate intervals as reasonably required by the City and Architect, 14 shall be related to the entire Project(if more than one Contract is involved in the Project), and shall provide for expeditious and practicable execution of the Work. All updated schedules shall address the subject of how the Contractor intends to overcome any delays previously encountered. The Contractor shall submit to the Architect with each monthly Application for Payment, a copy of the updated construction schedule as a prerequisite for approval of Applications for Payment. 15.112 The Contractor shall prepare and keep current, for the Architect's approval, a schedule of submittals which is coordinated with the Contractor's construction schedule and allows the Architect reasonable time to review submittals. 15.113 The Contractor shall perform the Work in general accordance with the most recent schedules submitted to the City and Architect. 15.11.4 The process of approving Contractor's schedules and updates to Contractor's schedules shall not constitute a warranty by the City that any non-Contractor milestones or activities will occur as set out in the Contractor's schedules. Approval of a Contractor's schedule does not constitute a commitment by the City to furnish any Owner- furnished information or material any earlier than City would otherwise be obligated to furnish that information or material under the Contract Documents. Failure of the Work to proceed in the sequence scheduled by Contractor shall not alone serve as the basis for a Claim for additional compensation or time. In the event there is interference with the Work which is beyond its control, Contractor shall attempt to reschedule the Work in a manner that will hold the additional time and costs to a minimum. The construction schedules shall be in a detailed format satisfactory to the City and the Architect and shall also: (1)provide a graphic representation of all activities and events that will occur during performance of Work; (2)identify each phase of construction and occupancy; and(3) set forth dates that are critical in ensuring the timely and orderly completion of the Work in accordance with the requirements of the Contract Documents (hereinafter referred to as Milestone Dates). If not accepted, the construction schedules shall be promptly revised by the Contractor in accordance with the recommendations of the City and Architect and re-submitted for acceptance. The Contractor shall monitor the progress of the Work for conformance with the requirements of the construction schedules and shall promptly advise the City of any delays or potential delays. The accepted construction schedules shall be updated to reflect actual conditions as,set forth in Paragraph 1.5.11.1, if requested, by either the City or Architect. In the event any schedule indicates any delays, the Contractor shall propose an affirmative plan to correct the delay. In no event shall any schedule constitute an adjustment in the Contract Time, any Milestone Date or the Contract Sum unless any such adjustment is agreed to by the City and authorized pursuant to Change Order. 1.5.12 Documents and Samples at the Site. 15.121 The Contractor shall maintain at the site for the City one record copy of the Permit Drawings, Specifications, Addenda, Change Orders, As Built Mark-ups and other Modifications, in good order and marked currently to record field changes and selections made during construction, and one record copy of approved Shop Drawings, Product Data, Samples and similar required submittals. These shall be available to the Architect and shall be delivered to the Architect for submittal to the City upon 15 completion of the Work. 1.5.13 Shop Drawings, Product Data and Samples. 15.13.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub- subcontractor,manufacturer,supplier or distributor to illustrate some portion of the Work. 15.132 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. 15.133 Samples are physical examples which illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. 15.13.4 Shop Drawings,Product Data, Samples and similar submittals are not Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required by the Contract Documents the way by which the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents. Review by the Architect is subject to the limitations of Paragraph 1.6.2.7. Informational submittals upon which the Architect is not expected to take responsive action may be so identified in the Contract Documents. Submittals which are not required by the Contract Documents may be returned by the 1 Architect without action. 15.135 The Contractor shall review for compliance with the Contract Documents, approve and submit to the Architect Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the City or of separate contractors. Submittals which are not marked as reviewed for compliance with the Contract Documents and approved by the Contractor may be returned by the Architect without action. 15.13.6 By approving and submitting Shop Drawings, Product Data, Samples and similar submittals,the Contractor represents that the Contractor has determined and verified materials, field measurements and field construction criteria related thereto, or will do so, and has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents. If, in the opinion of the Architect, the shop drawings indicate a lack of study and the review by the Contractor is incomplete, or indicate an inadequate understanding of the Work covered by the shop drawings, prior to submittal to the Architect, the shop drawings will be returned, unchecked, to the Contractor for correction of any/all of these deficiencies for subsequent resubmittal. 15.13.7 The Contractor shall perform no portion of the Work for which the Contract Documents require submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the respective submittal has been approved by the Architect. 16 15.13.8 The Work shall be in accordance with approved submittals except that the Contractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents by the Architect's approval of Shop Drawings, Product Data, Samples or similar submittals unless the Contractor has specifically informed the Architect in writing of such deviation at the time of submittal and (1) the Architect has given written approval to the specific deviation as a minor change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing the deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings,Product Data, Samples or similar submittals by the Architect's approval thereof. 15.139 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings,Product Data, Samples or similar submittals,to revisions other than those requested by the Architect on previous submittals. In the absence of such written notice the Architect's approval of a resubmission shall not apply to such revisions. 15.13.10 The Contractor 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 Contractor needs to provide such services in order to carry out the Contractor's responsibilities for construction means, methods, techniques, sequences and procedures. The Contractor shall not be required to provide professional services in violation of applicable law. If professional design services or certifications by a design professional related to systems,materials or equipment are specifically required of the Contractor by the Contract Documents, the City and the Architect will specify all performance and design criteria that such services must satisfy. The Contractor shall cause such services or certifications to be provided by a properly licensed design professional,whose signature and seal shall appear on all drawings, calculations, specifications,certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professional's written approval when submitted to the Architect. The City and the Architect shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals, provided the City and Architect have specified to the Contractor all performance and design criteria that such services must satisfy. Pursuant to this Paragraph 1.5.13.10, the Architect will review, approve or take other appropriate action on submittals only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Contractor shall not be responsible for the adequacy of the performance or design criteria required by the Contract Documents. 15.13.11 Adequate copies of Shop Drawings for architectural, structural, mechanical and electrical work shall be submitted to the Architect for review in the order of scheduled and upcoming work. 15.13.12 The Contractor shall submit complete Drawings, Data and Samples to the Architect at least thirty (30) days prior to the date the Contractor needs the reviewed submittals returned. The Contractor shall be prepared to submit color samples on } any key items within sixty (60) days of the execution of the Contract. Once samples of all key items are received,the Architect will finalize color selections. 17 15.13.13 The Contractor shall submit the number of copies of Product Data and Samples which the Contractor and its Subcontractor(s)need for their use. Where Shop Drawings are involved, the Contractor shall submit one (1) high quality reproducible transparency and one (1) opaque print of the Shop Drawings for the Architect. The reproducible transparency will be marked by the Architect and/or its consultants.After final review and correction of the submittal, Contractor shall send one (1) corrected set to the Architect and one(1) to each of the Architect's consultants involved with the particular section of Work. The Contractor shall provide composite BIM Model within three (3) months of the issuance of the GMP showing how all piping, ductwork, lights, conduit, equipment, etc. will fit into the ceiling space allotted, including clearances required by the manufacturer,by code, or in keeping with good construction practice. Space for all trade elements must be considered on the same model. BIM shall reflect components shown in a '/4 inch scale. 1.5.14 Use of Site. 15.141 The Contractor shall confine operations at the site to areas permitted by law, ordinances, permits and the Contract Documents and shall not unreasonably encumber the site with materials or equipment. 15.142 The Contractor's access to the site, parking, field office location,material and equipment storage,and confinement of said areas shall be coordinated with, and approved by the City prior to the Contractor's mobilization on the site. Once agreed upon,the Contractor shall not adjust or increase any of the above areas without prior consent by the Owner. 1.5.15 Cutting and Patching. 15.15.1 The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. 15.152 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed construction of the City or separate contractors by cutting,patching or otherwise altering such construction, or by excavation. The Contractor shall not cut or otherwise alter such construction by the City or a separate contractor except with written consent of the City and of such separate contractor; such consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the City or a separate contractor the Contractor's consent to cutting or otherwise altering the Work. Any such alteration involving cutting or removal of previously installed work shall be approved in writing by the Contractor and the Architect prior to initiation of the alteration. 1.5.16 Cleaning Up. 15.16.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. At completion of the Work, the Contractor shall remove from and about the 18 (Th Project waste materials, rubbish,the Contractor's tools,construction equipment,machinery and surplus materials. The Contractor shall be responsible for protection of the Work and shall repair or replace damaged work at Substantial Completion of the Work.The Contractor shall remove all temporary protections at the completion of the Work. 15.162 If the Contractor fails to clean up as provided in the Contract Documents, the City may do so and the cost thereof shall be charged to the Contractor. 15.163 Prior to the Architect's inspection for Substantial Completion, the Contractor shall: clean exterior surfaces exposed to view; remove temporary labels, stains, and foreign substances; polish transparent and glossy surfaces; clean equipment and fixtures to a sanitary condition; clean roofs; clean the Project site; sweep paved areas and rake clean other surfaces; and remove trash and surplus materials from the Project site. 1.5.17 Access to Work. 15.17.1 The Contractor shall provide the City, its contractors, vendors or employees and Architect access to the Work in preparation and progress wherever located. Contractor may impose such safety"rules and regulations"on these entities as are imposed on its own sub-contractors, vendor and employees but shall not require undue or burdensome requirements that Contractor's own sub-contractors,vendors or employees are not also subjectto. 1.5.18 Royalties,Patents and Copyrights. 15.18.1 The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for infringement of copyrights and patent rights and shall hold the City and Architect harmless from loss on account thereof, but shall not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is required by the Contract Documents or where the copyright violations are contained in Drawings, Specifications or other documents prepared by the City or Architect. However, if the Contractor has reason to believe that the required design, process or product is an infringement of a copyright or a patent, the Contractor shall be responsible for such loss unless such information is promptly furnished to the Architect. 1.5.19 INDEMNIFICATION AND RELEASE. 15.19.1 CONTRACTOR SHALL PROTECT, DEFEND, HOLD HARMLESS AND INDEMNIFY THE CITY FROM ANY AND ALL CLAIMS, DEMANDS,EXPENSES, LIABILITY OR CAUSES OF ACTION FOR INJURY TO ANY PERSON,INCLUDING DEATH,AND FOR DAMAGE TO ANY PROPERTY, TANGIBLE OR INTANGIBLE, OR FOR ANY BREACH OF CONTRACT ARISING OUT OF OR IN ANY MANNER CONNECTED WITH THE WORK DONE BY ANY PERSON UNDER THIS AGREEMENT. IT IS THE INTENT OF THE PARTIES THAT THIS PROVISION SHALL EXTEND TO, AND INCLUDE, ANY AND ALL CLAIMS, CAUSES OF ACTION OR LIABILITY CAUSED BY THE CONCURRENT,JOINT AND/OR CONTRIBUTORY NEGLIGENCE OF THE CITY, AN ALLEGED BREACH OF AN EXPRESS OR IMPLIED 19 WARRANTY BY THE CITY OR WHICH ARISES OUT OF ANY THEORY OF STRICT OR PRODUCTS LIABILITY. 15.192 The indemnifications contained in Paragraph 1.5.19.1. shall include but not be limited to the following specific instances: (a) The City is damaged due to the act, omission, mistake, fault or default of the Contractor. (b) In the event of any claims for payment for goods or services brought by any material suppliers, mechanics, laborers, or other subcontractors. (c) In the event of any and all injuries to or claims of adjacent property owners caused by the Contractor,its agents,employees,and representatives. (d) In the event of any damage to the floor,walls,etc.,caused by the Contractor's personnel or equipment during installation. (e) The removal of all debris related to the Work. (f) The acts and omissions of the subcontractors. (g) The Contractor's failure to comply with applicable federal,state,or local regulations,that touch upon or concern the maintenance of a safe and protected working environment and the safe use and operation of machinery and equipment in that working environment, no matter where fault or responsibility lies. 15.193 The indemnification obligations of the Contractor under this Paragraph shall not extend to include the liability of any professional engineer,the architect, their consultants, and agents or employees of any of them arising out of(1) the preparation or approval of maps, drawings, opinions, reports, surveys, Change orders, designs or specifications, or (2) the giving of or the failure to give directions or instructions by the professional engineer, the architect, their consultants, and agents and employees of any of 'them,provided such giving or failure to give is the primary cause of the injury or damage. 15.19.4 It is agreed with respect to any legal limitations now or hereafter in effect and affecting the validity or enforceability of the indemnification obligation under Paragraph 1.5.19.1., such legal limitations are made a part of the indemnification obligation and shall operate to amend the indemnification obligation to the minimum extent necessary to bring the provision into conformity with the requirements of such limitations, and as so modified, the indemnification obligation shall continue in full force and effect. ), 15.195 Contractor's indemnification obligations hereunder shall survive termination,completion,abandonment and final payment. 20 15.19.6 The Contractor assumes full responsibility for the Work to be performed hereunder, and hereby releases, relinquishes, and discharges the City, its officers,agents,and employees from all claims,demands,and causes of action of every kind and character, including the cost of defense thereof, for any injury to or death of any person (whether employees of either party or other third parties) and any loss of or damage to any property(whether property of either of the parties hereto,their employees,or of third parties) that is caused by or alleged to be caused by, arising out of, or in connection with the Contractor's Work to be performed hereunder.This release shall apply regardless of whether said claims, demands,and causes of action are covered in whole or in part by insurance, and in the event of injury, death, property damage, or loss suffered by the Contractor,.any Subcontractor,or any person or organization directly or indirectly employed by any of them to perform or furnish work on the Project,this release shall apply regardless of whether such injury, death, loss, or damage was caused in whole or in part by the negligence of the City. 1.5.20 Reproducible Record Drawings. 1520.1 Required as part of Final Completion of the Project, the Contractor shall submit one (1) complete set of drawings with all changes made during construction,including concealed mechanical, electrical,and plumbing items 1.6 Administration of the Contract. 1.6.1 Architect. r � 1.6.1.1 The Architect is the person lawfully licensed to practice architecture or an 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 or such successor Architect as City may appoint by written notice to Contractor from time to time. 1.6.12 City shall notify Contractor when the duties, responsibilities or limitations of authority of the Architect have been modified. 1.6.13 If the employment of the Architect is terminated,the City may elect to appoint a replacement Architect, or at its option,elect to complete the Project using another consultant or representative to perform the balance of the Architect's functions on the Work. 1.6.14 Except as herein expressly provided, the Contractor shall not be relieved of its obligation to perform the Work in strict accordance with the Contract Documents by the activities or duties of the Architect. 1.6.2 Architect's Administration of the Contract. 1.621 Certain portions of the administration of the Contract will be performed by the Architect. The Architect shall not have the authority to act on behalf of the City unless such authority is expressly granted in the Contract Documents,nor shall such authority be implied from any act or representation of the Architect. The City is free to elect to have some of the administration duties set out for the Architect to perform under 21 the Contract Documents performed by a construction manager or by employees of the City. 1622 The Architect, as a representative of the City, 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 City informed about the progress and quality of the portion of the Work completed, (2) to endeavor to guard the City 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. However,the Architect will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The Architect 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, except as provided in Paragraph 1.5.5.1. In no event shall City or any other party have control over,be in charge of,or be responsible for construction means,methods,techniques, sequences,procedures, or for safety precautions and programs in connection with the Work, since these are solely Contractor's responsibilities. City will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. City will not have control over, be in charge of, and will not be responsible for the acts or omissions of Contractor, Subcontractors, or their agents or employees, or of any other persons performing portions of the Work. 1.623 The Architect will not be responsible for the Contractor's (r 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. 1.624 Communications Facilitating Contract Administration. Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized,the City and Contractor shall endeavor to communicate with each other through the Architect about matters arising out of or relating to the Contract. Communications by and with the Architect'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 City. 1.625 Based on the Architect's evaluations of the Contractor's Applications for Payment, the Architect will review and certify the amounts due the Contractor and will issue Certificates for Payment in such amounts. 1.626 The Architect will have authority to reject Work that does not conform to the Contract Documents. Whenever the Architect considers it necessary or advisable for implementation of the intent of the Contract Documents, the Architect will have authority to require additional inspection or testing of the Work in accordance with Paragraphs 1.15.5.2. and 1.15.5.3., whether or not such Work is fabricated, installed or completed. However, neither this authority of the Architect nor a decision made reasonably and in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Contractor, Subcontractors,material and equipment 22 suppliers, their agents or employees, or other persons or entities performing portions of the Work. 1.627 The Architect will _review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data and Samples,but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect's action will be taken with such reasonable promptness as to cause no delay in the Work or in the activities of the City, Contractor or separate contractors, while allowing sufficient time in the Architect's professional judgment to permit adequate review.Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Architect's review of the Contractor's submittals shall not relieve the Contractor of its obligations. The Architect's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Architect, of any construction means, methods, techniques, sequences or procedures. The Architect's approval of a specific item shall not indicate approval of an assemblyof which the item is a component. 1.628 The Architect will prepare Change Orders and Construction Change Directives, and may authorize minor changes in the Work as provided in Paragraph 1.9.4. 1.629 The Architect will conduct inspections to determine the date or dates of Substantial Completion and the date of Final Completion, will receive and forward to the City, for the City's review and records, written warranties and related documents required by the Contract and assembled by the Contractor, and will issue a final Certificate for Payment upon compliance with the requirements of the Contract Documents. 1.6210 If the City and Architect agree, the Architect will provide one or more project representatives to assist in carrying out the Architect's responsibilities at the site. The duties, responsibilities and limitations of authority of such project representatives shall be as set forth in an exhibit to be incorporated in the Contract Documents. 1.6211 The Architect will interpret and decide matters concerning performance under, and requirements of, the Contract Documents on written request of either the City or Contractor. The Architect'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 shall be furnished in compliance with this Paragraph 1.6.2.11,then delay shall not be recognized on account of failure by the Architect to furnish such interpretations until thirty(30)days after written request is made for them. 1.6212 Interpretations and decisions of the Architect 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. 1.6213 The Architect's decisions on matters relating to all Work will be final if consistent with the intent expressed in the Contract Documents. 23 1.6.3 Claims and Disputes. 1.63.1 Definition. A Claim is any demand or assertion by the Contractor that it should be paid more money.than the Contract Sum, as adjusted under the Change Order provisions herein, by the City because of action or inaction on the part of City,Architect, or any party for whom City is responsible, or any party with whom City has separately contracted for other portions of the Project, including but not limited to any demand or assertion that Contractor's performance has been delayed, interrupted or interfered with, that Contractor's performance has been accelerated, constructively accelerated, or suspended, that Contractor's performance has been wrongfully terminated, that the Contract Documents have been misinterpreted, that here has been a failure of payment,that Contractor has encountered concealed or unknown conditions,that Contractor has encountered hazardous materials,that there are problems with the Contract Documents, or the timing of Architectural approvals or decisions, that action of the City have been intentionally wrongful or deceptive in any way to the Work,That the amount of time or money granted in a Construction Change Directive is inadequate, that an item treated as a minor change in the Work should have been treated as a Change Order,that a time extension granted was inadequate,or that Contractor is entitled to any other relief,on any legal theory, related to the Work and the Contract mNothing contained in this subparagraph shall be construed as creating any Contractor right to make a claim, where no such right otherwise exists. 1.632 Notice Requirement:Within ten(10)calendar days of the first occurrence of an event that Contractor has any reason to believe might result in a Claim, or within ten (10) calendar days of Contractor's discovery of the first occurrence of the event that Contractor has any reason to believe might result in a Claim, if the first occurrence of the event was willfully hidden from the Contractor, the Contractor shall file a written document clearly captioned "Notice of Claim" with City and Architect. The notice shall clearly set out the specific matter of complaint,and the impact of damages which may occur or have occurred as a result thereof, to the extent the impact or damages can be assessed at the time of the notice. If the impact or damages cannot be assessed as of the date of the notice, the notice shall be amended at the earliest date that is reasonably possible. 16321 Any Claim or portion of a Claim that has not been made the specific subject of a notice strictly in accordance with the requirements of.this Paragraph shall be waived. It is imperative that City have timely, specific notice of any subject, the impact of which City may be in a position to mitigate. 1.6322 No course of conduct or dealings between the parties, nor implied acceptance of alteration or additions to the Work or changes to the Contract schedule, shall be the basis for any claim for an increase in the Contract Sum or change in the Contract Time. 1.6.3.3 Claims Handling During Construction: After receipt of a Notice of Claim, the City may elect to refer the matter to the Architect or another party for 24 review.Contractor will attend meetings called to review and discuss the Claim and mitigation ` Th' of the problem,and shall furnish any reasonable factual backup of the Claim requested. The City may also elect to defer consideration of the Claim until the Work is completed,in which case the same review options shall be available to the City at the completion of the Work. At any stage, the City is entitled to refer a Claim to mediation under the Construction Industry Mediation Rules of the American Arbitration Association, and if this referral is made, Contractor will take part in the mediation process. The filing, mediation or rejection of a Claim does not entitle Contractor to stop performance of the Work.The Contractor shall proceed diligently with performance of the Work during the pendency of any claim, except termination under City's direction to stop the Work. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.The parties shall share the Mediator's fee and any filing fees equally, and the Mediation shall be held in Brazoria County, Texas. 1.6.3.4 Claims Handling Following Construction: The acceptance of final payment shall constitute a waiver of Claims by the Contractor which have not previously been identified in a timely notice of Claim and specifically reserved in the final Application for Payment. 1.6.3.5 Claims for Concealed or Unknown Conditions. Only if conditions are encountered at the site which are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or(2)unknown physical conditions of an unusual nature,which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then Contractor shall be entitled to make a Claim if it can satisfy all of the other requirements of Paragraph 1.6. 1.6.3.6 Claims for Additional Cost. If the Contractor wishes to make Claim for an increase in the Contract Sum, written notice and prior approval of City must occur before Contractor may execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property arising under Paragraph 1.12.4. 1.6.3.7 Calculating Claim Amount: In calculating the amount of any Claim,the following standards will apply: (a) No indirect or consequential damages will be allowed. (b) All damages must be directly and specifically shown to be caused by a proven wrong. No recovery shall be based on a comparison of planned expenditures to total actual expenditures, or on estimated losses of labor efficiency, or on a comparison of planned man loading to actual man loading, or any other analysis that is used to show damages indirectly. (c) Damages are limited to extra costs specifically shown to have been directly caused by a proven wrong. (d) The maximum daily limit on any recovery for delay shall be the amount established by the Contractor for job overhead costs, defined in the 25 (Th Schedule of Values, divided by the total number of calendar days of Contract Time called for in the original Contract. Absent an overhead amount in the Schedule of Values,the amount estimated by the Contractor for job overhead costs shall be used. (e) The maximum amount of all Claims is expressly agreed to be limited to five percent(5%)of the Contract Sum. 1.7 Subcontractors. 1.7.1 Definitions. 1.7.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion of the Work at the site. The term "Subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor. 1.7.12 A Sub-subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the Work at the site. The term "Sub-subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Sub-subcontractor or an authorized representative of the Sub- subcontractor. 1.7.2 Award of Subcontracts and Other Contracts for Portions of the Work. 1.721 Unless otherwise stated in the Contract Documents or the bidding requirements, the Contractor, as soon as practicable after award of the Contract, shall furnish in writing to the City, through the Architect,the names of persons or entities (including those who are to furnish labor, materials or equipment fabricated to a special design)proposed for each principal portion of the Work. The Architect will promptly reply to the Contractor in writing stating whether or not the City or the Architect, after due investigation,has reasonable objection to any such proposed person or entity. Failure of the City or Architect to reply promptly shall constitute notice of no reasonable objection. 1.722 The Contractor shall not contract with a proposed person of entity to whom the City or Architect has made reasonable and timely objection. The Contractor shall not be required to contract with anyone to whom the Contractor has made reasonable objection. 1.723 If the City or Architect has reasonable objection to aperson or entity proposed by the Contractor,the Contractor shall propose another to whom the City or Architect has no reasonable objection. If the proposed but rejected Subcontractor was reasonably capable of performing the Work, the Contract Sum and Contract Time shall be increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order shall be issued before commencement of the substitute 26 Subcontractor's Work. However,no increase in the Contract Sum or Contract Time shall be allowed for such change unless the Contractor has acted promptly and responsively in submitting names as required. 1.724 The Contractor shall not change a Subcontractor, person or entity previously selected if the City or Architect makes reasonable objection to such substitute. 1.725 The Contractor shall submit the list of proposed Subcontractors on a form provided by the Architect. The Contractor may obtain blank copies from the Architect. 1.726 The Contractor and Subcontractors are required to visit the site and completely familiarize themselves with the existing conditions prior to the submission of Proposal(s).No additional increase in the Contract amount will be provided when existing or known conditions require a certain amount of work to comply with the intent of the Contract Documents. 1.7.3 Sub-contractual Relations. 1.73.1 By appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities, including the responsibility for safety of the Subcontractor's Work, which the Contractor, by these Documents, assumes toward the City and Architect. Each subcontract agreement shall preserve and protect the rights of the City and Architect under the Contract Documents with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights. Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with Sub-subcontractors. The Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor will be bound,and,upon written request of the Subcontractor,identify to the Subcontractor terms and conditions of the proposed subcontract agreement which may be at variance with the Contract Documents. Subcontractors will similarly make copies of applicable portions of such documents available to their respective proposed Sub-subcontractors. 1.7.4 Contingent Assignment Of Subcontracts. 1.7.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the City provided that: (a) assignment is effective only after termination of the Contract by the City for cause pursuant to Paragraph 1.16.2. and only for those subcontract agreements which the City accepts by notifying the Subcontractor and Contractor in writing;and (b) assignment is subject to the prior rights of the surety, if any, obligated under bond relating to the Contract. 27 1.742 City shall only be responsible for compensating Subcontractor for Work done or materials furnished after the date City gives written notice of its acceptance of the subcontract agreement. 1.743 Each Subcontract and assignment shall provide that the City shall only be responsible to the Subcontractor for those services and materials furnished by the Subcontractor subsequent to the City's exercise of any rights under this contingent assignment. 1.7.5 Responsibility. 1.75.1 Contractor shall be fully responsible for the performance of its Subcontractor,including those selected or approved by the City. 1.8 Construction by Owner or by Separate Contractors. 1.8.1 Owner's Right to Perform Construction and to Award Separate Contracts. 1.8.1.1 The City reserves the right to perform other construction work, maintenance and repair work near or adjacent to the site during the time period of the Work. Owner may perform other Work with separate contractors. City shall have access to the site at all times.Any contractor performing work on the site whether for the project or for other projects that require access through this site shall maintain the same insurance and indemnity limits as those of the Contractor. 1.8.12 When separate contracts are awarded for different portions of the Project or other construction or operations on the site,the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate Owner-Contractor Agreement. 1.8.2 Mutual Responsibility. 1.821 The Contractor shall afford the City and separate contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities, and shall connect and coordinate the Contractor's construction and operations with theirs as required by the Contract Documents. 1.899 If part of the Contractor's Work depends for proper execution or results upon construction or operations by the City or a separate contractor,the Contractor shall, prior to proceeding with that portion of the Work, promptly report to the Architect discrepancies or defects in such other construction that would render it unsuitable for such proper execution and results. Failure of the Contractor so to report shall constitute an acknowledgment that the City's or separate contractor's completed or partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not then reasonably discoverable. Ir~�' 1.823 The City shall be reimbursed by the Contractor for costs incurred by the City which are payable to a separate contractor because of delays, 28 (� improperly timed activities or defective construction of the Contractor. , 1.824 The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially completed construction or to property of the City or separate contractors as provided in Paragraph 1.12.2.5. 1.825 The City and each separate contractor shall have the same responsibilities for cutting and patching as are described for the Contractor in Paragraph 1.5.15. 1.8.3 Owner's Right to Clean Up. 1.83.1 If a dispute arises among the Contractor, separate contractors and the City as to the responsibility under their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish, the City may clean up and the Architect will allocate the cost among those responsible. 1.9 Changes in the Work. 1.9.1 General. Changes in the Work may be accomplished after execution of the Contract, and without invalidating the Contract, by Change Order, Construction Change Directive or order for a minor change in the Work. The Contract Sum and/or Contract Time may be increased for changes in the Work if the provisions of this Paragraph have been met. 1.9.1.1.1 No change in the Contract Sum and/or Contract Time will be allowed for a change in the Work unless prior to performing the changed Work,the Contractor has provided the City in writing a proposal for any change in price and/or change in Contract Time caused by the change in Work, and a Change Order is subsequently executed.A field directive or field order shall not be recognized as having any impact upon the Contract Sum or the Contract Time, and Contractor shall have no Claim therefore, unless it shall, prior to complying with the directive and in any event within fourteen(14) calendar days of receiving the directive, submit a change proposal to the City, and a Change Order is subsequently executed, or Contractor satisfies the requirements of Paragraph 1.6.3. Contractor's proposal shall be subject to City's acceptance and remain firm and irrevocable for a period of forty-five (45) calendar days after receipt by City. Thereafter, Contractor reserves the right to resubmit such change proposal upon different pricing and time of performance terms. 19.12 A Change Order shall be based upon agreement among the City, Contractor and-Architect; a Construction Change Directive requires agreement by the City and Architect and may or may not be agreed to by the Contractor; an order for a minor change in the Work may be issued by the Architect alone. 19.13 Changes in the Work shall be performed under applicable provisions of the Contract Documents, and the Contractor shall proceed promptly, unless 29 otherwise provided in the Change Order,Construction Change Directive or order for a minor change in the Work. Except as permitted in Paragraph 1.9.3., a change in the Contract Sum or the Contract Time shall be accomplished only by Change Order. 19.14 The Contractor, upon receipt of written notification by the Architect of a proposed item of change in the Work, shall prepare as soon as possible a Change Proposal in such form or forms as directed by the Architect. (a) Each separate Change Proposal shall be numbered consecutively and shall include material costs, labor costs, fees, overhead and profit. The Change Proposal shall specify all costs related to the proposed change in the Work,including any disruption or impact on performance. (b) The Subcontractor's itemized accounting shall be included with the Change Proposal. (c) If a Change Proposal is returned to the Contractor for additional information or if the scope of the proposed change in the Work is modified by additions, deletions or other revisions, the Contractor shall revise the Change Proposal accordingly and resubmit the revised Change Proposal to the Architect. (d) A revised Change Proposal shall bear the original Change Proposal number suffixed by the letter "R" to designate a revision in the original Change Proposal. If additional revisions to a revised Change Proposal are necessary, each subsequent revision shall be identified by an appropriate numeral suffix immediately following the"R"suffix. (e) Upon written approval of a Change Proposal by the City,the Architect will prepare an appropriate Change authorizing such change in Work. (I) The Contractor shall request extensions of Contract Time due to changes in the Work only at the time of submitting its Change Proposal. Contractor's failure to do so shall represent a waiver of any right to request a time extension. 1.9.2 Change Orders. 1.9.2.1 A Change Order is a written instrument prepared by the Architect and signed by the City, Contractor and Architect, stating their agreement upon all of the following: (a) change in the Work; and the amount of the adjustment, if any, in the Contract Sum; (b) the extent of the adjustment, if any, in the Contract Time. 1.9.2.2 Methods used in determining adjustments to the Contract Sum 30 may include those listed below: (a) mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation; (b) unit prices stated in Contract Documents or subsequently agreed upon; (c) cost shall be determined in a manner agreed upon by the parties and a mutually acceptable fixed fee, or the percentage fee established at Subparagraph 1.9.3.6.,or (d) as provided in Subparagraph 1.9.3.6. 1.9.2.3 Agreement on any Change Order shall constitute a final settlement of all Claims by the Contractor directly or indirectly arising out of or relating to the change in Work which is the subject of the Change Order, including, but not limited to, all direct and indirect costs and impact costs associated with such change and any and all adjustments to the Contract Sum and the Contract Time. 1.9.3 Construction Change Directives. 1.9.3.1 A Construction Change Directive is a written order prepared to by the Architect and signed by the City and Architect, directing a change in the Work prior to agreement on adjustment,if any, in the Contract Sum or Contract Time,or both. The City may by Construction Change Directive, without invalidating the Contract, order changes in the Work within the general scope of the Contract consisting of additions,deletions or other revisions, the Contract Sum and Contract Time being adjusted accordingly. 1.9.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change Order. 1.9.3.3 The Construction Change Directive shall include a unilateral change in the Contract Sum and/or Contract Time reflecting the City's view of the appropriate change in the Contract Sum and/or Contract Time for the change in Work covered by the Construction Change Directive. Until agreement is reached by the City and Contractor on these issues, the changes in Contract Sum and Contract Time set out in the Construction Change Directive shall be used for Schedule of Values, payment and scheduling purposes. 1.9.3.4 Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the change in the Work involved and advise the Architect of the Contractor's agreement or disagreement with the method, if any, provided in the Construction Change Directive for determining the proposed adjustment in the Contract Sum or Contract Time. 1.9.3.5 A Construction Change Directive signed by the Contractor indicates the agreement of the Contractor therewith, including adjustment in Contract Sum and Contract Time or the method for determining them. Such agreement shall be effective 31 immediately and shall be recorded as a Change Order. 1.9.3.6 In the absence of an agreement between City and Contractor on the proper change to the Contract Sum or Contract Time because of a change in the Work, Contractor may treat the matter as a Claim under Paragraph 1.6.3. In such event, the Contractor shall be entitled to recover only the amount by which the Cost of the Work has been reasonably increased over the Cost of Work without the change in the Work,plus five percent(5%). 1.9.3.7 Pending final determination of the cost of a Construction Change Directive to the City, amounts not in dispute may be included in Applications for Payment. The amount of credit to be allowed by the Contractor to the City for a deletion or change which results in a net decrease in the Contract Sum shall be actual net cost as confirmed by the Architect. When both additions and credits covering related Work or substitutions are involved in a change,the allowance for overhead and profit shall be figured on the basis of net increase,if any,with respect to that change. 1.9.4 Minor Changes in the Work. 1.9.4.1 The Architect will have authority to order minor changes in the Work not involving adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes shall be effected by written order and shall be binding on the City and Contractor. The Contractor shall carry out such written orders promptly. 1.9.5 Changes Funded By Allowances. 1.9.5.1 Allowances balances may be used to fund changes in the Work. The Contractor will not be allowed an overhead and profit mark-up when changes in the Work are funded by one of theAllowances. 1.10 Prosecution and Progress. 1.10.1 TIME AND ORDER OF COMPLETION. It is the meaning and intent of this Contract, unless otherwise herein specifically provided, that the CONTRACTOR shall be allowed to prosecute his Work at such times and seasons, in such order of precedence, and in such manner as shall be most conducive to economy of construction;provided,however,that the order and the time of prosecution shall be such that the Work shall be Substantially Completed as a whole and in part, in accordance with this Contract and the Contract Time; provided, also,that when the OWNER is having other work done, either by contract or by his own forces, the Architect may direct the time and manner of constructing the Work done under this Contract, so that conflict will be avoided and the construction of the various works being done for the OWNER shall be harmonized, and the CONTRACTOR shall fully cooperate and coordinate its Work with OWNER or such other contractors. 1.10.1.1 The CONTRACTOR shall submit, an updated schedule with every pay estimate for review by the Architect, schedules which shall show the order in which the CONTRACTOR proposes to carry on the Work, with dates on which the CONTRACTOR will start the several parts of the work, and estimated 32 dates of completion of the several parts. Such schedules shall show completion of the Work within the Contract Time, and/or shall show such recovery efforts as CONTRACTOR intends to undertake in the event Substantial Completion of the Work is delayed. 1.10.12 EXTENSION OF TIME. The CONTRACTOR agrees that he has submitted his Bid Proposal in full recognition of the time required for the completion of this Project, taking into consideration the average climatic range and industrial conditions prevailing in this locality, and has considered the liquidated damage provisions as hereinafter set forth, and that he shall not be entitled to, nor will he request, an extension of time on this Contract, except when Substantial Completion of the Work has been delayed solely by strikes, lockouts, fires, Acts of God, or by any other cause which the Architect shall decide justifies the delay. The CONTRACTOR shall give the Architect prompt notice, in writing and within three (3) days of the start of any such delay, of the cause of any such delay, and its estimated effect on the Work and the schedule for completion of the Work. Upon receipt of a written request for an extension of the Contract Time from the CONTRACTOR, supported by relevant and all requested documentation, the Architect shall submit such written request, together with his written recommendation,to the OWNER for consideration. If the delay is not attributable in whole or in part to any act or omission of CONTRACTOR, its subcontractors or suppliers, and if the OWNER determines that CONTRACTOR is entitled to an extension of time under the terms of the Contract, the OWNER shall grant an extension of time for Substantial Completion of the Work, sufficient to compensate for the delay, and such extension of time shall be CONTRACTOR's sole and exclusive remedy, except as may be otherwise provided herein. No extensions of Contract Time shall be made for delays occurring prior to the Contractor's mobilization as defined in the City's Specifications. The Contract Time as defined in the Bid Proposal and other sections herein incorporates 40 Rain Days per calendar year or an average of 3.33 days per calendar month. The CONTRACTOR is required to keep record of all-weather related delays and to submit the monthly count on each Pay Application. The Owner's Representative shall review and sign off on this record as a part of the Pay Application approval process every month. If, during preparation of the Balancing Change Order, the status of the work progress requires an extension of the Contract Time, Impact Days shall be added to the Completion Date equal to the total number of Weather or Impact Days approved less the original 40 days resident in the original Contract Time.The Addition of Weather or Impact Days will only alter the Contract Time when added by Change Order.If the Work is completed prior to the Completion Date, No Days will be added. The addition of Weather or Impact Days shall be the CONTRACTOR's sole remedy for delays to the completion of the Work and their addition to the Contract Time shall not affect the Contract Price through any "per diem"adjustment to the General Conditions costs, Temporary Facilities costs or any other costs associated with the extension of the Contract Time. 1.10.13 HINDRANCES AND DELAYS. In executing the Contract, the CONTRACTOR agrees that in undertaking to complete the Work within the time herein fixed, he has taken into consideration and made allowances for all 33 interference, disruption, hindrances and delays incident to such Work, whether growing out of delays in securing material,workmen or otherwise.No claim shall be made by the CONTRACTOR for damages, loss, costs or expense resulting from interference, disruption, hindrances or delays from any cause during the progress of any portion of the Work embraced in this Contract,except where the Work is stopped or suspended by order of the OWNER's representative and such stoppage or suspension is not attributable to any act or omission of CONTRACTOR. 1.10.14 SUSPENSION OF WORK. OWNER may, without cause, order the CONTRACTOR in writing to suspend the Work, in whole or in part, for such period of time as OWNER may request. The Contract Price and/or Contract Time shall be adjusted for any increase in the cost of or the time required for performance of the Work caused by such suspension. No adjustment shall be made to the extent performance was or would have been suspended by a cause for which CONTRACTOR is responsible, or to the extent an adjustment is made or denied under another provision of the Contract Documents. 1.10.15 CHANGE OF CONTRACT TIME: The Contract Time may only be changed by a Change Order. Any claim for an adjustment of Contract Time shall be based on written notice delivered by the party making such claim to the other party and to the Architect promptly,but in no event later than ten(10) days after the event-giving rise to the claim. Notice of the extent of the claim, along with supporting data,shall be delivered within thirty(30)days of the occurrence and shall be accompanied by the claimant's written representation that the adjustment claimed is the entire adjustment to which the claimant has reason to believe it is entitled as a result of the occurrence of said event. All claims for adjustment in Contract Time shall be determined by the ARCHITECT in accordance with the requirements of this paragraph. Contractor shall submit, as a minimum, the following data: A. Information showing that the time requested is not included in the existing Contract and in addition to the Contract. B. Information documenting that the number of days requested is accurate for the event. C. Revised, current construction schedule showing that the time requested affects the project's critical path. 1.10.1.6 DELAYS BEYOND OWNER'S AND CONTRACTOR'S CONTROL: Where CONTRACTOR is prevented from completing any part of the Work within the Contract Time due to delays beyond the control of the OWNER and the CONTRACTOR, including, but not limited to, interference by utility owners or other contractors performing other work,Contractor shall be entitled to an extension of the Contract Time in an amount equal to the time lost. CONTRACTOR shall not be entitled to any increase in Contract Price as a result of such delays. IN NO EVENT SHALL OWNER BE LIABLE TO CONTRACTOR FOR DAMAGES ARISING OUT OF OR RESULTING FROM (i) Delays caused by, or within the control of,the CONTRACTOR, or (ii) Delays beyond the control of both parties including, but 34 not limited to, interference by utility owners or other contractors performing other work, fires, floods, epidemics, abnormal weather conditions, acts of God, even if such delays are due in part to the negligence, other fault, breach of contract or warranty, violation of the Texas Deceptive Trade Act, or strict liability without regard to fault of OWNER. An extension of Contract time shall be CONTRACTOR's sole and exclusive remedy for any such delays. Delays attributed to,and within the control of,a Subcontractor or Supplier shall be deemed to be delays within the control of the CONTRACTOR. 1.11 Payments and Completion. 1.11.1 Contract Sum. 1.11.1.1 The Contract Sum is stated in the Agreement and, including authorized adjustments,is the total amount payable by the City to the Contractor for performance of the Work under the Contract Documents. 1.11.2 Schedule of Values. 1.1121 Before the first Application for Payment, the Contractor shall submit to the Architect a Schedule of Values fairly allocating the various portions of the Work,prepared in such form and supported by such data to substantiate its accuracy as reasonably required by the Architect. Once approved by the Architect and updated for changes in the Work, the Schedule of Values shall be used as a basis for reviewing the Contractor's Applications for Payment and is not to be taken as evidence of market or other value. The Schedule of Values shall not overvalue early job activities. The Contractor's Fee shall be shown as a single separate item. The Schedule of Values shall follow the trade divisions of the Specification so far as practicable. In order to facilitate the review of Applications for Payment, the Schedule of Values shall be submitted on forms approved by the Owner, and shall include the following: (a) Contractor's costs for Contractor's Fee,bonds and insurance, mobilization, etc., shall be listed as individual line items. (b) Contractor's costs for various construction items shall be detailed. For example, concrete work shall be subdivided into footings, grade beams, floor slabs, paving, etc. These subdivisions shall appear as individual line items. (c) On major subcontracts, such as mechanical, electrical and plumbing, the Schedule of Values shall indicate line items and amounts in detail (for example: underground,major equipment,fixtures, installation of fixtures, start up,etc.). (d) Costs for subcontract Work shall be listed without any 35 addition of Contractor's costs for overhead,profit or supervision. (e) Where payment for stored materials may be requested prior to installation,material and labor shall be listed as separate line items. (f) Sample pages from an approved Schedule of Values are included following this document. 1.11.3 Applications for Payment. 1.113.1 At the time specified in the Agreement,the Contractor shall submit to the Architect an itemized Application for Payment for operations completed in accordance with the Schedule of Values. Such application shall be notarized, if required, and supported by such data substantiating the Contractor's right to payment as the City or Architect may require, such as copies of requisitions from Subcontractors and material suppliers, and reflecting retainage if provided for in the Contract Documents. Unless otherwise agreed, the Contractor shall submit requests for payment through the City's project management software (ProTrak) using the APPLICATION AND CERTIFICATE FOR PAYMENT; showing in detail the amounts requested, etc., as necessary. All blank spaces must be completed and the signatures of the Contractor shall signify his attestation that said Application for Payment is true, accurate and complete. By submitting its Application for Payment, the Contractor certifies that the individual signing the application is authorized to do so.Additionally,if the Contractor prepares its Application for Payment,any supplemental supporting documentation should be provided and uploaded through the ProTrak software. Applications for Payment may not include requests for payment for portions of the Work for which the Contractor does not intend to pay to a Subcontractor or material supplier. 1.1132 Unless otherwise provided in the Contract Documents, payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If approved in advance by the City, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing. Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by the Contractor with procedures satisfactory to the City to establish the City's title to such materials and equipment or otherwise protect the, City's interest,and shall include the costs of applicable insurance,storage and transportation to the site for such materials and equipment stored off the site. Applications for Payment shall separate references to any and all materials and/ or equipment that require separate payment for materials stored but not installed as individual line items. These items shall be specifically identified in the Original Schedule of Values as well as where this material or equipment will be incorporated into the Work. 1.1133 Upon payment by the City of the invoiced cost,title to all such materials and equipment shall irrevocably pass to the City. The Contractor warrants that title to all materials and equipment covered by an Application for Payment will 36 pass to City upon the receipt of payment by the Contractor. Such title shall be free and clear of all liens, claims, security interests or encumbrances. No work, materials or equipment covered by an Application for Payment shall be subject to an agreement under which an interest is retained or encumbrance is attached by the seller, the Contractor, or other party. 1.1134 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the City no later than the time of payment. The Contractor further warrants that upon submittal of an Application for Payment all Work for which Certificates for Payment have been previously issued and payments received from the City shall,to the best of the Contractor's knowledge, information and belief,be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor, Subcontractors,material suppliers, or other persons or entities making a claim by reason of having provided labor,materials and equipment relating to the Work. Each Application for Payment shall be accompanied by a signed and notarized Partial Release of Lien/All Bills Paid affidavit specifically covering the Work performed and any materials and equipment included and billed in the accompanying Application for Payment. 1.11.4 Certificates for Payment. 1.114.1 The Application for Payment will be reviewed first by the Architect who will certify to the City that portion, if any, of the Application for Payment it has determined is properly due. In the event that the Architect believes that payment should be withheld, in whole or in part, it will notify the City and Contractor of the basis of this view as provided in Subparagraph 1.11.5.1. 1.1142 The issuance of a Certificate for Payment will constitute a representation by the Architect to the City,based on the Architect's evaluation of the Work and the data comprising the Application for Payment, that the Work has progressed to the point indicated and that, to the best of the Architect's knowledge, information and belief, the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests and inspections, to correction of minor deviations from the Contract Documents prior to completion and to specific qualifications expressed by the Architect. The issuance of a Certificate for Payment will further constitute a representation that the Contractor is entitled to payment in the amount certified. However, the issuance of a Certificate for Payment will not be a representation that the Architect has (1) made exhaustive or continuous on-site inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the City to substantiate the Contractor's right to payment, or (4) made examination to ascertain how or for what purpose the Contractor has used money previously paid on account of the Contract Sum. 1.1143 The issuance of a Certificate of Payment shall constitute a recommendation to the City in respect to the amount to be paid. This recommendation is not binding on the City if City knows of other reasons under the Contract why payment should be withheld. 37 1.1144 The Architect will affix his signature to the same form described in Paragraph 1.11.4.1. to signify his certification of payment provided the application is otherwise satisfactory. 1.11.5 Decisions to Withhold Certification. 1.115.1 The Architect may withhold a Certificate for Payment in whole or in part,to the extent reasonably necessary to protect the City,if in the Architect's opinion the representations to the City required by Paragraph 1.11.4.2. cannot be made. If the Architect is unable to certify payment in the amount of the Application, the Architect will notify the Contractor and City as provided in Paragraph 1.11.4.1. If the Contractor and Architect cannot agree on a revised amount, the Architect will promptly issue a Certificate for Payment for the amount for which the Architect is able to make such representations to the City. The Architect may also withhold a Certificate for Payment or, because of subsequently discovered evidence, may nullify the whole or a part of a Certificate for Payment previously issued,to such extent as may be necessary in the Architect's opinion to protect the City from loss for which the Contractor is responsible, including loss resulting from acts and omissions described in Paragraph 1.5.5.2.,because of: (a) defective Work notremedied; (b) third party claims filed or reasonable evidence indicating probable filing of such claims unless security acceptable to the City is provided by the Contractor; (c) failure of the Contractor to make payments properly to Subcontractors or for labor,materials or equipment; (d) reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; (e) damage to the City or another contractor; (f) reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or (g) persistent failure to carry out the Work in accordance with the Contract Documents. 1.1152 When the above reasons for withholding certification are removed, certification will be made for amounts previouslywithheld. 1.11.6 Progress Payments. 1.11.6.1 After the Architect has issued a Certificate for Payment, the City shall make payment in the manner and within the time provided in the Contract Documents, and shall so notify the Architect. If the City believes the Contractor is not 38 current in its legitimate obligations to suppliers, laborers and/or Subcontractors on the Project, City may(but is not obligated to)withhold payment until it receives partial or final releases, or other reasonable proof from the Contractor that this situation does not exist. 1.11.62 The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the City, out of the amount paid to the Contractor on account of such Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled,reflecting percentages actually retained from payments to the Contractor on account of such Subcontractor's portion of the Work.The Contractor shall,by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub- subcontractors in a similar manner. City is not obligated to monitor payments to Subcontractors or Sub-subcontractors, and nothing in this paragraph shall create any right on the part of a Subcontractor or Sub-subcontractor against City. 1.11.63 Neither the City nor Architect shall have an obligation to pay or to see to the payment of money to a Subcontractor or Sub-subcontractor. 1.1164 Payment to material suppliers shall be treated in a manner similar to that provided in Paragraphs 1.11.6.2., 1.11.6.3. and 1.11.6.4. 1.11.65 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the City shall not constitute acceptance of Work not in accordance with the Contract Documents. 1.11.7 Failure of Payment. 1.11.7.1 If the City incurs any costs and expenses in curing any default of the Contractor or correcting defective Work,the City shall have an absolute right to offset such amount against the Contract Sum under this Contract, and may, in the City's sole discretion, elect either to: (1)deduct an amount equal to that to which the Owner is entitled, or(2)issue a written notice to the Contractor reducing the GMP by an amount equal to that to which the Owner is entitled. 1.11.8 Substantial Completion. 1.11.8.1 When the Contractor considers that the Work, or a portion thereof which the City agrees to accept separately, is substantially complete, the Architect and City shall review the punch list prepared by Contractor and supplement the list as necessary. 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. 1.11.8.1.1 The Contractor's superintendent shall participate in the preparation of the Contractor's punch list that is submitted to the Architect and City for supplementation. Upon receipt,the Architect shall perform a spot review to determine the adequacy and completeness of the Contractor's punch list. Should the Architect determine that the Contractor's punch list lacks sufficient detail or requires extensive supplementation,the punch list will be returned to the Contractor for further inspection and revision.The date of Substantial Completion will be delayed until the punch list submitted is a reasonable 39 representation of the work to be done. 1.11.8.12 Upon receipt of an acceptable Contractor's punch list, the Contractor's superintendent shall accompany the Architect, its Consultants and the City(at its discretion)during their inspections and the preparation of their supplements to the Contractor's punch list. The superintendent shall record or otherwise take note of all supplementary items. The Architect will endeavor to furnish to the Contractor typed, hand written or recorded supplements to the punch list in a prompt manner; however, any delay in the Contractor's receiving said supplements from the Architect shall not be cause for a claim for additional cost or extension oftime. 1.11.82 When the Contractor notifies Architect that it has completed or corrected items on the punch list, the Architect will make an inspection to determine whether the Work or designated portion thereof is substantially complete. If the Architect's inspection discloses any item,whether or not included on the Contractor's punch list,which is not sufficiently complete in accordance with the Contract Documents so that the City can occupy or utilize the Work or designated portion thereof for its intended use,the Contractor shall,before issuance of the Certificate of Substantial Completion, complete or correct such item upon notification by the Architect. In such case, the Contractor shall then submit a request for another inspection by the Architect to determine Substantial Completion. Any further inspections by the Architect for the purpose of determining the Project is Substantially Complete shall be at Contractor's cost and the City may deduct such cost from any amount payable to Contractor hereunder. 1.11.83 When the Work or designated portion thereof is substantially complete, the Architect will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion, shall establish responsibilities of the City 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. 1.11.8.4 The Certificate of Substantial Completion shall be submitted to the City and Contractor for their written acceptance of responsibilities assigned to them in such Certificate. Upon such acceptance and consent of surety, if any,the City, in its sole discretion,may make payment of retainage, or a portion thereof as determined in the City's sole discretion, applying to such Work or designated portions thereof. Such payment shall be adjusted for Work that is incomplete or not in accordance with the requirements of the ContractDocuments. 1.11.85 Upon final completion of all remaining outstanding or incomplete work, identified in the Certificate of Substantial Completion, the Architect shall issue a Certificate of Final Completion and Acceptance.Upon such issuance,the City shall 1 release all remaining retainage, if any. 1.11.8.6 The Contractor shall keep all required insurance in full force, 40 and provide payment for all utilities,until the Certificate of Substantial Completion and Acceptance is issued, and all Work is accepted by the City in writing, regardless of the stated date of Substantial Completion. Such Acceptance shall not be unreasonably withheld. Contractor shall provide City a minimum of 3 days written notice of Contractor's planned utility contract termination date. 1.11.9 Partial Occupancy or Use. 1.11.9.1 The City may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement with the Contractor,provided such occupancy or use is consented to by the insurer as required under Paragraph 1.13.3.1. and authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use may commence whether or not the portion is substantially complete,provided the City and Contractor have accepted in writing the responsibilities assigned to each of them for payments,retainage,if any,security, maintenance,heat,utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. 1.1192 Immediately prior to such partial occupancy or use, the City, Contractor and Architect shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work. 1.11.93 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. 1.11.10 Final Completion and Final Payment. 1.11.10.1 Upon City's receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Architect will promptly make such inspection and, when the Architect fmds the Work acceptable under the Contract Documents and the Contract fully performed, the Architect will promptly issue a fmal Certificate for Payment stating that to the best of the Architect's knowledge, information and belief, and on the basis of the Architect's on-site visits and inspections, the Work has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor and noted in the final Certificate is due and payable. The Architect's final Certificate for Payment will constitute a further representation that conditions listed in Paragraph 1.11.10.2. as precedent to the Contractor's being entitled to final payment have been fulfilled. Prior to final payment,the Contractor shall submit to the Architect the following completed forms: (a) Contractor's Affidavit of Payment of Debts and Claims; (y (b) Contractor's Affidavit of Release of Liens; 41 (c) Consent of Surety to Final Payment(if applicable); (d) Subcontractor's Unconditional Releases — each signed and notarized on a single piece ofpaper; (e) Maintenance and inspection manuals—three(3)sets of each bound in a 3 inch"D-slant"ringbinder; (f) Final list ofsubcontractors;_ (g) one (1) complete set of marked-up copies of the Drawings and Specifications accurately showing the Project as constructed. Such Specifications and Drawings shall be marked to show all changes and modifications that have been incorporated into the Work as performed; (h) other data_ establishing payment or satisfaction of obligations,such as receipts,releases and waivers of liens,claims,security interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated by the City;and (i) any other"Closeout Documents"required under the Contract Documents. Documents identified as affidavits must be notarized. All manuals will contain an index listing the information submitted. The index sections will be divided and identified by tabbing each section as listed in the index. Upon request, the Architect will furnish the Contractor with blank copies of the forms listed above. Final payment, constituting the entire unpaid balance of the Contract Sum shall be paid by the City to the Contractor thirty(30)days after Substantial Completion of the Work,unless otherwise stipulated in the Certificate of Completion, provided the Contract is fully performed, and Final Certificate of Payment has been issued by the Architect. The City may accept certain portions of the Work as being complete prior to the acceptance of the entire Project. If certain areas are accepted by the City as being completed, and if the Contractor has completed all of the requirements for final payment of the portion of Work, the City may, but is not required to,release retainage for that area/portion of Work.Amounts of retainage shall be agreed upon by both City and Contractor prior to final acceptance of these areas. 1.11.102 If, after Substantial Completion of the Work, fmal completion thereof is materially delayed through no fault of the Contractor or by issuance of Change Orders affecting final completion, and the Architect so confirms, the City shall, upon application by the Contractor and certification by the Architect, and without terminating the Contract,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 retainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Architect prior to certification of such payment. Such payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. 42 1.11.103 Acceptance of final payment by the Contractor shall constitute a waiver of claims by Contractor except for any Claims then pending that comply with the requirements of Paragraph 1.6.3. 1.12 Protection of Persons and Property. 1.12.1 Safety Precautions and Programs. 1.12.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all necessary safety precautions and programs in connection with the performance of the Contract. 1.12.2 Safety of Persons andProperty. 1.12.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: (a) employees on the Work and other persons who may be affected thereby including but not limited to the City's employees, invitees and the general public; (b) the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub-subcontractors;and (c) other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal,relocation or replacement in the course of construction. 1.12.2.2 The Contractor shall give notices and comply with applicable laws, ordinances,rules,regulations and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss. 1.12.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection,including posting danger signs and other warnings against hazards,promulgating safety regulations and notifying owners and users of adjacent sites and utilities. 1.12.2.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. When use or storage of explosives or other hazardous materials or equipment or unusual construction methods are necessary, the Contractor shall give the City and Architect reasonable advance notice of the presence or use of such materials, equipment or methods. 1.12.2.5 The Contractor shall promptly remedy damage and loss(other than damage or loss insured under property insurance required by the Contract Documents) to property referred to in Paragraphs 1.12.2.1(b). and 1.12.2.1.(c). caused in whole or in part 43 by the Contractor, a Subcontractor, a Sub-subcontractor, or anyone directly or indirectly employed by any of them,or by anyone for whose acts they may be liable and for which the Contractor is responsible under Paragraphs 1.12.2.1, except damage or loss attributable to acts or omissions of the City or Architect or anyone directly or indirectly employed by either of them, or by anyone for whose acts either of them may be liable, and not attributable to the fault or negligence of the Contractor. The foregoing obligations of the Contractor are in addition to the Contractor's obligations under Paragraph 1.5.19.6. 1.12.2.6 The Contractor shall designate a responsible member of the Contractor's organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor's superintendent unless otherwise designated by the Contractor in writing to the Owner and Architect. 1.12.2.7 The Contractor shall not load or permit any part of the construction or site to be loaded so as to endanger its safety. 1.12.2.8 Suspension of all or a portion of the Work,for any reason,shall not relieve the Contractor of its obligations under Paragraph 1.12.2. 1.12.2.9 The Contractor shall promptly report in writing to the City and Architect all accidents arising out of or in connection with the Work which cause death, personal injury, or property damage, giving full details and statement of any witnesses. In addition, if death, serious personal injuries, or serious property damages are caused, the accident shall be reported immediately by telephone or messenger to City and Architect. 1.12.2.10 The Contractor shall be responsible for the protection and security of the Work and the Project,until it receives written notification that the Substantial Completion of the Work has been accepted by the City unless otherwise provided in the Certificate of Substantial Completion. 1.12.3 Hazardous Materials. 1.12.3.1 Contractor agrees that it shall not transport to, use, generate, dispose of, or install at the Project site any Hazardous Substance (as defined in 1.12.3.1.3.), except in accordance with applicable Environmental Laws.Further,in performing the Work, Contractor shall not cause any release of Hazardous Substances into, or contamination of, the environment, including the soil, the atmosphere, any water course or ground water, except in accordance with applicable Environmental Laws (as hereafter defined at Paragraph 1.12.3.1.3). In the event Contractor engages in any of the activities prohibited in this Paragraph 1.12.3.1. to the fullest extent permitted by law, Contractor hereby indemnifies and holds City, Architect and all of their respective officers, agents and employees harmless from and against any and all claims, damages, losses, causes of action, suits, and liabilities of every kind, including, but not limited to, expenses of litigation, court costs, punitive damages and attorneys' fees, arising out of, incidental to or resulting from the activities prohibited in this Paragraph 1.12.3. 1.12.3.2 In the event Contractor encounters on the Project site any Hazardous Substance, or what Contractor may reasonably believe to be a Hazardous Substance, and which is being introduced to the Work, or exists on the Project site, in a 44 • manner violative of any applicable Environmental Laws, Contractor shall immediately stop work in the area affected and report the condition to City and Architect in writing. The Work in the affected area shall not thereafter be resumed except by written authorization of City if in fact a Hazardous Substance has been encountered and has not been rendered harmless. In the event Contractor fails to stop the Work upon encountering a Hazardous Substance at the Project site, to the fullest extent permitted by law, Contractor hereby indemnifies and holds City, Architect and all of their respective officers, agents and employees harmless from and against any and all claims,damages,losses,causes of action,suits,and liabilities of every kind, including, but not limited to, expenses of litigation, court costs, punitive damages and attorneys' fees, arising out of,incidental to or resulting from Contractor's failure to stop the Work. 1.12.3.3 City and Contractor may enter into a separate agreement and/or Change Order for Contractor to, remediate and/or render harmless pre-existing Hazardous Substances, but Contractor shall not be required to remediate and/or render harmless the Hazardous Substance absent such agreement. Contractor shall not be required to resume work in any area affected by the Hazardous Substance until such time as the Hazardous Substance has been remediated and/or rendered harmless. Contractor shall be solely responsible for all costs of remediation associated with Hazardous Substances imported, with or without Owner's knowledge, to the work site by Contractor or any Subcontractor. 1.12.3.4 For purposes of this Agreement, the term "Hazardous Substance" shall mean and include any element constituent, chemical, substance, compound, or mixture,which are defined as a hazardous substance by any local, state or federal law, rule, ordinance, by-law, or regulation pertaining to environmental regulation, contamination, clean-up or disclosure, including, without limitation, The Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), The Resource Conservation and Recovery Act("RCRA"), The Toxic Substances Control Act("TSCA"),The Clean Water Act ("CWA"), The Clean Air Act("CAA"), the Marine Protection Research and Sanctuaries Act ("MPRSA"), The Occupational Safety and Health Act ("OSHA"), The Superfund Amendments and Reauthorization Act of 1986 ("SARA"), or other state super lien or environmental clean-up or disclosure statutes including all state and local counterparts of such laws(all such laws,rules and regulations being referred to collectively as"Environmental Laws"). It is the Contractor's responsibility to comply with Paragraph 1.12.3.1 based on the law in effect at the time its services are rendered and to comply with any amendments to those laws for all services rendered after the effective date of any such amendments. 1.12.4 Emergencies. 1.12.4.1 In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor's discretion, to prevent threatened damage, injury or loss.Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Paragraph 1.6.3. and Paragraph 1.9. 1.13 Insurance and Bonds. 45 1.13.1 Contractor's Liability Insurance. 1.13.1.1 The Contractor shall purchase and maintain insurance as shown in ATTACHMENT 1, OWNER'S INSURANCE REQUIREMENTS OF CONTRACTOR and specific project related insurance requirements as noted in ATTACHMENT 2, SPECIAL CONDITIONS OF THE AGREEMENT. 1.13.2 Certificates of Insurance. 1.13.2.1 Certificates of Insurance shall be prepared and executed by the insurance company or its authorized agent and must be provided in accordance with Section 1.13.1.1.1 and are attached as EXHIBIT A, Contractor's Insurance Certificates including Builder's Risk. 1.13.3 Property Insurance. 1.13.3.1 Partial occupancy or use in accordance with Paragraph 1.11.9. shall not commence until the insurance company or companies providing property insurance have consented to such partial occupancy or use by endorsement or otherwise. The City and the Contractor shall take reasonable steps to obtain consent of the insurance company or companies and shall, without mutual written consent, take no action with respect to partial occupancy or use that would cause cancellation,lapse or reduction of insurance. (Th\ 1.13.3.2 Loss of Use Insurance. The City, at the City's option, may purchase and maintain such insurance as will insure the City against loss of use of the City's property due to fire or other hazards,however caused. 1.13.3.3 If the Contractor requests in writing that insurance for risks other than those described herein or other special causes of loss be included in the property insurance policy,the City shall,at City's option,include such insurance,and the cost thereof shall be charged to the Contractor by appropriate Change Order. 1.13.3.4 If during the Project construction period the City insures properties, real or personal or both, at or adjacent to the site by property insurance under policies separate from those insuring the Project,or if after final payment property insurance is to be provided on the completed Project through a policy or policies other than those insuring the Project during the construction period, the City shall waive all rights for damages caused by fire or other causes of loss covered by this separate property insurance. All separate policies shall provide this waiver of subrogation by endorsement or otherwise. 1.13.3.5 A loss insured under City's property insurance shall be adjusted by the City and made payable to the City for the insureds, as their interests may appear, subject to requirements of Paragraph 1.13.3. The Contractor shall pay Subcontractors their just shares of insurance proceeds received by the Contractor, and by appropriate agreements, written where legally required for validity, shall require Subcontractors to make payments to their Sub-subcontractors in similar manner. 1.13.3.6 If after such loss no other special agreement is made and unless the City terminates the Contract for convenience, replacement of damaged property shall be 46 1 performed by the Contractor after notification of a Change in the Work in accordance with Paragraph 1.9. 1.13.4 Performance Bond and Payment Bond. 1.13.4.1 Pursuant to Chapter 2253 of the Texas Government Code, for all public works contracts with governmental entities,performance and payment bonds are required when the Contract Amount exceeds $50,000. In the event a performance or payment bond or both is required either by law or in the City's discretion, such bonds shall be executed in accordance with all requirements of Article 7.19-1 of the Texas Insurance Code, all other applicable law, and the following: (a) The Contractor shall execute performance and payment bonds for the full Contract Amount in the forms attached hereto as Exhibit B and C. (b) The bond surety shall be authorized under the laws of the State of Texas to provide a performance and payment bond and shall have attached proof of authorization of the surety to act in the performance and payment of bonds. (c) The Contractor shall provide original, sealed, and complete counterparts of the executed bonds in the forms required by the Contract Documents, which are attached as Exhibit B and C, together with valid original powers of attorney, at the time of execution of this Agreement and prior to the commencement of Work. Copies of the executed bonds shall be attached hereto as Exhibit B and C. (d) The performance and payment bonds shall remain in effect for a period of one (1) year after Final Completion of the Work and shall be extended for any warranty work to cover the warranty period. (e) If at any time during the execution of this Agreement in the required period thereafter, the bond or bonds become invalid or ineffective for any reason, the Contractor shall promptly supply within ten (10) days such other bond or bonds,which bond or bonds shall assure performance or payment as required. 1.13.4.2 The Contractor may make such changes and alterations as the City may require in the Work or any part thereof without affecting the validity of this Agreement and any accompanying bond. If such changes or alterations diminish the quantity of the Work to be done, they shall not constitute the basis for any claim for damages or anticipated profits. If the City makes changes or alterations that render useless any Work already done or material already used in said Work, then the City shall compensate the Contractor for any material or labor so used, and for any actual loss occasioned by such change due to actual expenses incurred in preparation for the work as originally planned. 1.14 Uncovering and Correction of Work. 1.14.1 Uncovering of Work. 47 r 1.14.1.1 If a portion of the Work is covered contrary to the Architect's request, required inspection, or contrary to requirements in the Contract Documents, the Work must, if required in writing by the Architect, be uncovered for the Architect's examination or inspection of the work and be replaced at the Contractor's expense without change in the ContractTime.' 1.14.1.2 If a portion of the Work has been covered which the Architect has not specifically requested to examine prior to its being covered, the Architect may request to see such Work and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order, be at the City's expense. If such Work is not in accordance with the Contract Documents,correction shall be at the Contractor's expense. 1.14.2 Correction of Work. 1.14.2.1 Before or After Substantial Completion. 1.14.2.1.1 The Contractor shall promptly correct Work rejected by the Architect or failing to conform to the requirements of the Contract Documents, whether discovered before or after Substantial Completion and whether or not fabricated, installed or completed. Costs of correcting such rejected Work, including additional testing and inspections and compensation for the Architect's services and expenses made necessary thereby, shall be at the Contractor's expense. 1.14.2.2 After Substantial Completion. 1.14.2.2.1 In addition to the Contractor's obligations under Paragraph 1.5.7., if, within one year after the date of Substantial Completion of the Work or designated portion thereof or after the date for commencement of warranties established under Paragraph 1.11.9.1., or by terms of an applicable special warranty required by the Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice from the City to do so unless the City has previously given the Contractor a written acceptance of such particular condition. The City shall give such notice promptly after discovery of the condition. If the Contractor fails to correct nonconforming Work within a reasonable time during that period after receipt of notice from the City or Architect, the City may correct it in accordance with Paragraph 1.4.5. The "prompt" correction of defective work by the Contractor after receipt of notification from the City as described above shall be defined as follows: (a) The Contractor shall make written response to the City within twenty-four(24)hours of receipt of the City's notice, acknowledging receipt of the notice and providing the proposed schedule to conduct corrective work. Corrective work shall not interfere with the City's normal operation and use of the Project,unless expressly approved by the City; 48 (b) For corrective work which is not a life safety issue or which will not, by the nature of the defect, cause subsequent damage to the Project, corrective work shall be completed within fourteen(14)calendar days; (c) For corrective work which by its nature may cause subsequent damage to the Project, corrective work required to prevent subsequent damage shall be completed within twenty-four (24) hours, and if such work is a temporary repair,permanent repair of the corrective work shall be completed within seven (7) calendar days. The Contractor shall also correct all subsequent damage caused by such corrective work; (d) For corrective work which affects services to, and ordinary use of the Project, corrective work shall be completed within twenty-four (24) hours, and if such work is a temporary repair, permanent repair of the corrective work shall be completed within seven(7)calendar days;and (e) The time frames stated above for completion of permanent corrective work shall be equitably adjusted as required for legitimate delays caused by weather delays, material acquisition and other factors beyond the Contractor's direct control. 1.1497? The one-year period for correction of Work shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual performance of the Work. 1.14223 These obligations under Subparagraph 1.14.2.2. shall survive acceptance of the Work under the Contract and termination of the Contract. The period for any Work corrected pursuant to Paragraph 1.14.2. shall be extended for a period of one year after the date said corrective work is completed. 1.1423 The Contractor shall remove from the site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the City. 1.1424 The Contractor shall bear the cost of correcting destroyed or damaged construction, whether completed or partially completed, of the City or separate contractors caused by the Contractor's correction or removal of Work which is not in accordance with the requirements of the Contract Documents. 1.14.2.4.1 Where non-conforming Work is found, the entire area of Work involved shall be corrected unless the Contractor can completely define the limits to the Architect's satisfaction. Additional testing, sampling, or inspecting needed to define nonconforming Work shall be at the Contractor's expense, and performed by the City's testing laboratory if such services are reasonably required by the Architect.All corrected Work shall be retested at the Contractor's expense. Extra architectural or other services 49 required to analyze non-conforming Work shall be paid for by the Contractor. 1.1425 Nothing contained in Paragraph 1.14.2. shall be construed to establish a period of limitation with respect to other obligations which the Contractor might have under the Contract Documents.Nothing contained in Paragraph 1.14.2.is intended to limit or modify any obligations under the law or under the Contract Documents, including any warranty obligations, expressed or implied. 1.14.3 Acceptance of Nonconforming Work. 1.14.3.1 If the Owner prefers to accept Work which is not in accordance with the requirements of the Contract Documents, the City may do so instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and equitable. Such adjustment shall be effected whether or not final payment has been made. 1.15 Miscellaneous Provisions. 1.15.1 Governing Law. 1.15.1.1 This Contract and any disputes related to the Work shall be governed by the law of the State of Texas, and any disputes shall be resolved in Brazoria County, Texas. 1.15.2 Successors and Assigns. 1.15.2.1 The City and Contractor 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. Contractor shall not assign the Contract as a whole, or in part,without written consent of the City. 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. 1.15.3 Written Notice. 1.15.3.1 Written notice shall be deemed to have been served only if the writing is delivered to the addressees set out below, or to such other address as has been previously clearly identified in writing by the addressee, or if delivered by mail or in form of electronic transmission to that office,or sent by registered or certified mail to that address. City: City of Pearland 3519 Liberty Drive Pearland, Texas 77581 Attn: Engineering&CapitalProjects 50 Contractor: SpawGlass Construction Corp. 13800 West Road Houston,TX 77041 Attn: Brandon Meyers 1.15.4 Rights and Remedies. 1.15.4.1 No action or failure to act by the City, Architect or Contractor shall constitute a waiver of a right or duty afforded them under the Contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in writing. 1.15.5 Tests and Inspections. 1.15.5.1 Tests,inspections and approvals of portions of the Work required by the Contract Documents or by laws, ordinances, rules, regulations or orders of public authorities having jurisdiction shall be made at appropriate times. Unless otherwise provided, the Contractor shall make scheduling arrangements for such tests, inspections and approvals with an independent testing laboratory employed by the City for this purpose, or with the appropriate public authority. City shall bear the normal costs of these services, but not any excess costs attributable to Contractor-caused scheduling problems, or other Contractor error. The Contractor shall give the Architect timely notice of when and where tests and inspections are to be made so the Architect may observe such procedures. 1.15.5.2 If the Architect, City or public authorities having jurisdiction determine that portions of the Work require additional testing, inspection or approval not included under Paragraph 1.15.5.1., the Architect will, upon written authorization from the City, instruct the Contractor to make arrangements for such additional testing, inspection or approval by an entity acceptable to the City, and the Contractor shall give timely notice to the Architect of when and where tests and inspections are to be made so that the Architect may be present for such procedures. Such costs, except as provided in Paragraph 1.15.5.3., shall be at the City's expense. 1.15.5.3 If such procedures for testing, inspection or approval under Paragraphs 1.15.5.1 and 1.15.5.2. reveal failure of the portions of the Work to comply with requirements established by the Contract Documents, all costs made necessary by such failure including those of repeated procedures and compensation for the Architect's services and expenses shall be at the Contractor's expense. Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be kept and logged by the Contractor in ProTrak. All testing reports will be made available to all parties. 1.15.5.4 If the Architect is to observe tests, inspections or approvals required by the Contract Documents,the Architect will do so promptly and,where practicable, at the normal place of testing. 1.15.5.5 Tests or inspections conducted pursuant to the Contract 51 Documents shall be made promptly to avoid unreasonable delay in the Work. 1.16 Termination or Suspension of the Contract. 1.16.1 Termination by the Contractor. 1.16.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of ninety (90) consecutive days through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, for any of the following reasons: (a) issuance of an order of a court or other public authority having jurisdiction which requires all Work to be stopped; (b) an act of government, such as a declaration of national emergency which requires all Work to be stopped; or (c) because the Architect has not issued a Certificate for Payment and has not notified the Contractor of the reason for withholding certification as provided in Paragraph 1.11.4.1., or because the City has not made payment on a Certificate for Payment within the time stated in the Contract Documents, provided notice is given as required under Subparagraph 1.11.4.1. 1.16.1.2 The Contractor may terminate the Contract if, through no act or fault of the Contractor or a Subcontractor,Sub-subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor,repeated suspensions, delays or interruptions of the entire Work by the City as described in Paragraph 1.16.3. constitute in the aggregate more than 100 percent of the total number of days scheduled for completion, or 120 days in any 365- day period,whichever is less. 1.16.1.3 If the Work is stopped for ninety(90) consecutive days for any reason described in Paragraph 1.16.1.1. or 1.16.1.2., the Contractor may, upon fourteen (14) days'written notice to the City and Architect,terminate the Contract and recover from the City payment for Work. 1.16.1.4 Notwithstanding anything to the contrary contained herein or in the other Contract Documents, the City shall not be responsible for damages for loss of anticipated profits on Work not performed on account of any termination described in Subparagraphs 1.16.1.1., 1.16.1.2., and 1.16.1.3. 1.16.2 Termination by the Owner for Cause. 1.16.2.1 The City may terminate the Contract if the Contractor: (a) refuses or fails to supply enough properly skilled workers or proper materials; (b) fails to make payment to Subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the 52 Subcontractors; (c) disregards laws, ordinances, or rules,regulations or orders of a public authority having jurisdiction; (d) otherwise is guilty of substantial breach of a provision of the Contract Documents; (e) fails to furnish the City, upon request, with assurances satisfactory to the City evidencing the Contractor's ability to complete the Work in compliance with all the requirements of the Contract Documents; (f) fails to proceed continuously and diligently with the construction and completion of the Work, except as permitted under the Contract Documents;or (g) fails to provide all required policies of insurance and/or bonds. 1.16.2.2 When any of the above reasons exist, the City may without prejudice to any other rights or remedies of the City and after giving the Contractor andthe Contractor's surety, if any, seven days written notice of the specific default by Contractor and an opportunity to cure said default. If Contractor fails to cure default, after an additional seven day notice the Owner may terminate employment of the Contractor and may, subject to any prior rights of the surety: Th (a) take possession of the site and of all materials, equipment, tools,and construction equipment and machinery thereon owned by the Contractor; (b) accept assignment of subcontracts pursuant to Paragraph 1.7.4; (c) Make demand upon Contractor's surety to complete the Work;and (d) . finish the Work by whatever reasonable method the City 53 may deem expedient. 1.16.2.3 When the City terminates the Contract for one of the reasons stated in Paragraph 1.16.2.1,the Contractor shall not be entitled to receive further payment until the Work is finished. 1.16.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including compensation for the Architect's services and expenses made necessary thereby, and other damages incurred by the City and not expressly waived, including attorney's fees, such excess shall be paid to the Contractor. If such costs and damages exceed the unpaid balance, the Contractor shall pay the difference to the City. This obligation for payment shall survive termination of the Contract. 1.16.2.5 If a Performance Bond has been furnished and the Contractor is declared by the City to be in default under the Contract, the Surety shall promptly, in no event to exceed 30 days,remedy the default by commencing and continuing to perform the remaining work of the Contract in accordance with its terms and conditions, or by obtaining a bid or bids in accordance with its terms and conditions. At City's election,upon determination by the City and the Surety of the lowest responsible bidder, the Surety will complete the Work or will arrange for a Contract between such bidder and the City, and make available sufficient funds to pay the cost of completion less the balance of the Contract Sum, but not exceeding the Penal Sum of the bond. The phrase"balance of the Contract Sum"as used herein shall mean the total amount payable by the City to the Contractor under the Contract, including any adjustments thereto made in accordance with the terms and conditions of this Contract, and amendments thereto less the amount previously paid by the City to the Contractor. 1.16.3 Suspension by the Owner for Convenience. 1.16.3.1 The City may, without cause, and with seven days written notice, order the Contractor in writing to suspend, delay or interrupt the Work in whole or in part for such period of time as the City may determine. 1.16.3.2 If City suspends the Contractor's performance for convenience, an adjustment shall be made to the Contract Sum as calculated under Paragraph 1.9 and shall include profit.No adjustment shall be made to the extent: (a) that performance is, was or would have been so suspended, delayed or interrupted by another cause for which the Contractor is responsible;or (b) that an equitable adjustment is made or denied under another provision of the Contract. 1.16.4 Termination by the Owner forConvenience. 1.16.4.1 The City may, at any time, terminate the Contract, in whole or in part,with seven days written notice, for the City's convenience and without cause. 1.16.4.2 Upon receipt of written notice from the City of such termination for the City's convenience,the Contractor shall: (a) cease operations as directed by the City in the notice; (b) take actions necessary, or that the City may direct, for the protection and preservation of the Work;and (c) except for Work not so terminated and/or directed to be performed prior to the effective date of termination stated in the notice, terminate all existing subcontracts and purchase orders and enter into no further subcontracts and purchase orders. 1.16.4.3 In the event of a termination under Paragraph 1.16.4, the Contractor shall be paid the value of its Work to the date of termination plus such sums as are reasonably required to cover the cost to Contractor,its Subcontractors and suppliers,to shut down the Project. City shall not be responsible for damages for loss of anticipated profits on Work not performed on account of any termination. 1.16.4.4 Upon determination by a court of competent jurisdiction that termination of the Contract,pursuant to Paragraph 1.16.2 was wrongful, such termination will be deemed converted to a termination for convenience pursuant to Paragraph 1.16.4, and Contractor's remedy for wrongful termination shall be limited to the recovery of the payments permitted for termination for convenience as set forth in Paragraph 1.16.4. END OF GENERAL PROVISIONS SECTION 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES The Construction Manager shall perform the services described in this Paragraph. The services to be provided under Paragraphs 2.1 and 2.2 constitute the Preconstruction Phase services. If the City and Construction Manager agree, the Construction Phase may commence before the Preconstruction Phase is completed, in which case both phases will proceed concurrently. 2.1 Preconstruction Phase. 21.1 Preliminary Evaluation. The Construction Manager shall provide a preliminary evaluation of the City's program and Project budget requirements, each in terms of the other. 212 Consultation. The Construction Manager with the Architect shall jointly schedule and attend regular meetings with the City. The Construction Manager shall consult with the City and Architect regarding site use and improvements and the selection of materials, building systems and equipment. The Construction Manager 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. 213 Preliminary Project Schedule. When Project requirements described in Paragraph 3.1.1 have been sufficiently identified,the Construction Manager shall prepare, and periodically update, a preliminary Project schedule for the Architect's review and the City's approval. The Construction Manager shall coordinate and integrate the preliminary Project schedule with the services and activities of the City, Architect and Construction Manager. As design proceeds, the preliminary Project schedule shall be updated to indicate proposed activity sequences and durations, milestone dates for receipt and approval of pertinent information,submittal of a Guaranteed Maximum Price proposal,preparation and processing of shop drawings and samples, delivery of materials or equipment requiring long-lead-time procurement, City's occupancy requirements showing portions of the Project having occupancy priority, and proposed date of Substantial Completion. If preliminary Project schedule updates indicate that previously approved schedules may not be met, the Construction Manager shall make appropriate recommendations to the City and Architect. 2.14 Phased Construction. The Construction Manager shall make recommendations to the City 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 Project,taking into consideration such factors as economies, time of performance, availability of labor and materials, and provisions for temporaryfacilities. 2.1.4.1 Preliminary Cost Estimates. When the City has sufficiently identified the Project requirements and the Architect has prepared other basic design criteria, the Construction Manager shall prepare, for the review of the Architect and approval of the City, a preliminary cost estimate utilizing area,volume or similar conceptual estimating techniques. 2.1.4.1.1 When Schematic Design Documents have been prepared by the Architect and approved by the City, the Construction Manager shall prepare, for the review of the Architect and approval of the City,a more detailed estimate with supporting data. During the preparation of the Design Development Documents, the Construction Manager shall update and refine this estimate at appropriate intervals agreed to by the City,Architect and Construction Manager. 2.1.4.1.2 2.1.4.1.3 L1f'4 4 _i hen Design Development Documents have been prepared by the Architect and approved by the City, the Construction Manager shall prepare a detailed estimate with supporting data for review by the Architect and approval by the Owner. During the preparation of the Design Development Documents (DD's), the Construction Manager shall provide an initial cost estimate at 60% DD's and update and refine this estimate when the Construction Documents (CD's) are fifty percent (50%) complete and again at ninety percent (90%) complete, and at any other appropriate intervals agreed to by the City, Architect and Construction Manager necessary to develop a GMP for the project. These cost estimate updates shall incorporate the latest design changes, alternate materials and processes as required to provide a Guaranteed Maximum Price that will meet the Owners stated project budget. Should the estimates of cost of the work exceed the latest approved project budget the Construction Manager shall inform the Owner and Architect and make recommendations for corrective action. 2.1.4.2 Subcontractors and Suppliers. The Construction Manager shall seek to develop subcontractor interest in the Project and shall furnish to the City and Architect for their information a list of possible subcontractors, including suppliers who are to furnish materials or equipment fabricated to a special design, from whom proposals will be requested for each principal portion of the Work. The Architect will promptly reply in writing to the Construction Manager if the Architect or City know of any objection to such subcontractor or supplier. The receipt of such list shall not require the City or Architect to investigate the qualifications of proposed subcontractors or suppliers, nor shall it waive the right of the City or Architect later to object to or reject any proposed subcontractor or supplier. 2.1.4.3 Long-Lead-Time Items. The Construction Manager shall recommend to the City and Architect a schedule for procurement of long-lead-time items which will constitute part of the Work as required to meet the Project schedule. If such long-lead-time items are procured by the City,they shall be procured on terms and conditions acceptable to the Construction Manager. Upon the City's acceptance of the Construction Manager's Guaranteed Maximum Price proposal,all contracts for such items shall be assigned by the City to the Construction Manager,who shall accept responsibility for such items as if procured by the Construction Manager. The Construction Manager shall expedite the delivery of long-lead-time items. 2.1.4.4 Extent of Responsibility. The Construction Manager does not warrant or guarantee estimates and schedules except as maybe included as part of the Guaranteed Maximum Price. The recommendations and advice of the Construction Manager concerning design alternatives shall be subject to the review and approval of the City and the City's professional consultants. It is not the Construction Manager'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 Construction Manager recognizes that portions of the Drawings and Specifications are at variance therewith, the Construction Manager shall promptly notify the Architect and City in writing. 2.1.4.5 Equal Employment Opportunity and Affirmative Action. The Construction Manager shall comply with applicable laws, regulations and special requirements of the Contract Documents regarding equal employment opportunity and affirmative action programs. See attached Title VI Nondiscrimination Assurances attached hereto as ATTACHMENT 1. 2_2 Guaranteed Maximum Price Proposal. 221 When the Drawings and Specifications are sufficiently complete, but in no case later than 90% Construction Documents,the Construction Manager shall propose a Guaranteed Maximum Price, which shall be the sum of the estimated Cost of the Work and the Construction Manager's Fee along with any identified Allowances as have been determined to be necessary. Provided,however,Construction Manager understands such estimates are relied upon by the City in making various Project determinations, and, therefore, should Construction Manager's Guaranteed Maximum Price proposal exceed the City's applicable budget by more than 2.5%, all pre- construction services rendered thereafter to render the Project within 2.5% of the budget by Construction Manager shall be at its cost. 729 As the Drawings and Specifications may not be finished at the time the Guaranteed Maximum Price proposal is prepared, the Construction Manager shall provide in the Guaranteed Maximum Price for further development of the Drawings and Specifications by the Architect that is consistent with the Contract Documents and reasonably inferable therefrom. 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. 223 The estimated Cost of the Work shall separately identify,the Construction Manager's Contingency, a sum not to exceed three percent(2.5%) of the Guaranteed Maximum Price, an amount established by the Owner for the Construction Manager's use, subject to Owner's approval, to cover costs arising under Paragraph 2.2.2 and other costs which are properly reimbursable as Cost of the Work but not the basis for a Change Order.Upon Contractor's completion of the Project,all unused portions of the Construction Manager's Contingency and those from the Guaranteed Maximum Price shall be set aside as cost savings for the benefit of the Owner. 2.2.3.1.1 Basis of Guaranteed Maximum Price. The Construction Manager shall include with the Guaranteed Maximum Price proposal a written statement of its basis, which shall include: (a) A list of the Drawings and Specifications,including all addenda thereto and the Conditions of the Contract, which were used in preparation of the Guaranteed Maximum Price proposal. (b) A list of the clarifications and assumptions made by the Construction Manager in the preparation of the Guaranteed Maximum Price proposal to supplement the information contained in the Drawings and Specifications. (c) The proposed Guaranteed Maximum Price, including a statement of the estimated cost organized by trade categories,contingency, and other items and the Fee that comprise the Guaranteed Maximum Price. ; (d) The Date of Substantial Completion upon which the proposed Guaranteed Maximum Price is based, and a schedule of the Construction Documents issuance dates upon which the date of Substantial Completion is based. 2.2.3.2 The Construction Manager shall meet with the City and Architect to review the Guaranteed Maximum Price proposal and the written statement of its basis. In the event'that the City or Architect discover any inconsistencies or inaccuracies in the information presented,they shall promptly notify the Construction 'Manager, who shall make appropriate adjustments to the Guaranteed Maximum Price proposal, its basis, or both. This proposal shall provide the Owner no less than ten days to accept the GMP without invalidating the proposal or any of its terms. 2.2.3.3 Unless the City accepts the Guaranteed Maximum Price proposal in writing on or before the date specified in the proposal for such acceptance and so notifies the Construction Manager,the Guaranteed Maximum Price proposal shall not be effective without written acceptance by the Construction Manager. 2.2.3.4 Prior to the City's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a Notice to Proceed, the Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work, except as the City may specifically authorize inwriting. 2.2.3.5 Upon acceptance by the City of the Guaranteed Maximum Price proposal,the Guaranteed Maximum Price and its basis shall be set forth in Amendment No. 1. The Guaranteed Maximum Price 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. 2.2.3.6 The City shall authorize and cause the Architect to revise the Drawings and Specifications to the extent necessary to reflect the agreed-upon assumptions and clarifications contained in Amendment No. 1. Such revised Drawings and Specifications shall be furnished to the Construction Manager in accordance with schedules agreed to by the City, Architect and Construction Manager. The Construction Manager shall promptly notify the Architect and City if such revised Drawings and Specifications are inconsistent with the agreed- upon assumptions and clarifications. 2.3 Construction Phase. 23.1 General. 2.3.1.1 The Construction Phase shall commence on: a) the City's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a Notice to Proceed, and b) the City's first authorization to the Construction Manager to: 1. award a subcontract,or 2. undertake construction Work with the Construction Manager's own forces,or 3. issue a purchase order for materials or equipment required for the Work. r 2.4 Administration. 241 Those portions of the Work that the Construction Manager does not customarily perform with the Construction Manager's own personnel shall be performed under subcontracts or by other appropriate agreements with the Construction Manager. The Construction Manager shall obtain bids in accordance with the applicable requirements of Chapter 2269 of the Texas Government Code from Subcontractors and from suppliers of materials or equipment fabricated to a special design for the Work from the list previously reviewed and, after analyzing such bids, shall deliver such bids to the City and Architect. The City will then determine, with the advice of the Construction Manager, which bids will be accepted. The City may designate specific persons or entities from whom the Construction Manager shall obtain bids;however, if the Guaranteed Maximum Price has been established, the City may not prohibit the Construction Manager from obtaining bids from other qualified bidders. The Construction Manager shall not be required to contract with anyone to whom the Construction Manager has reasonable objection. 242 If the Guaranteed Maximum Price has been established and a specific bidder among those whose bids are delivered by the Construction Manager to the City and Architect(1)is recommended to the City by the Construction Manager; (2)is qualified to perform that portion of the Work; and (3) has submitted a bid which conforms to the requirements of the Contract Documents without reservations or exceptions, but the City requires that another bid be accepted, then the Construction Manager may require that a change in the Work be issued to adjust the Contract Time and the Guaranteed Maximum Price by the difference between the bid of the person or entity recommended to the City by the Construction Manager and the amount of the subcontract or other agreement actually signed with the person or entity designated by the City. 243 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated to a special design shall conform to the payment provisions of Paragraphs 7.1.8 and 7.1.9 and shall not be awarded on the basis of cost plus a fee without the prior consent of the City. 244 'The Construction Manager shall schedule and conduct meetings with appropriate Subcontractors at which the City, Architect, Construction Manager and appropriate Subcontractors can discuss the status of the Work. The Construction Manager shall prepare and promptly distribute meeting minutes. 245 Promptly after the City's acceptance of the Guaranteed Maximum Price proposal, the Construction Manager shall prepare:a schedule in accordance with Paragraph 1.5.11, General Conditions, including the Owner's occupancy requirements. 24.6 The Construction Manager shall provide monthly written reports to the City and Architect on the progress of the entire Work. The Construction Manager shall maintain a daily log containing a record of weather, Subcontractors working on the site,number of workers,Work accomplished,problems encountered and other similar relevant data as the City may reasonably require. The log shall be available to the City and Architect. The Construction Manager shall promptly inform City in writing of any circumstance or development that is likely to delay Substantial Completion of the Project in accordance with the schedule. 24.7 The Construction Manager 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 Construction Manager shall identify variances between actual and estimated costs and report the variances to the City and Architect at regular intervals. 248 Professional Services.Paragraph 1.5.14.10, General Conditions shall apply to both the Preconstruction and Construction Phase. 249 Hazardous Materials. Paragraph 1.12.3, General Conditions shall apply to both the Preconstruction and Construction Phases. SECTION 3 OWNER'S RESPONSIBILITIES. 3.1 Information and Services. 3.1.1 The Owner shall provide information in a timely manner regarding the requirements of the Project, including a program which sets forth the City'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 City shall establish and update an overall budget for the Project,based on consultation with the Construction Manager and Architect, which shall include contingencies for changes in the Work and other costs which are the responsibility of the City. 3.1.3 Structural and Environmental Tests, Surveys and Reports. In the Preconstruction Phase,the City shall furnish the following with reasonable promptness and at the City's expense. Except to the extent that the Construction Manager knows of any inaccuracy, or should have reasonably discovered such error or inaccuracy, the Construction Manager shall be entitled to rely upon the accuracy of any such information, reports, surveys, drawings and tests described in Paragraphs 3.1.3.1 through 3.1.3.4 but shall exercise customary precautions relating to the performance of the Work. 3.1.3.1 Reports, surveys, drawings and tests concerning the conditions of the site which are required by law. 3.1.3.2 Surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. 3.1.3.3 The services of a geotechnical engineer when such services are requested by the Construction Manager and are reasonably required by the scope of the Project, as determined by the City or Architect. 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. 3.1.3.4 Structural, mechanical, chemical, air and water pollution tests, tests for hazardous materials, and other laboratory and environmental tests, inspections and reports which are required bylaw. 3.1.3.5 The services of other consultants when such services are reasonably required by the scope of the Project, as determined by the City or Architect, and are requested by the Construction Manager. 32 Owner's Designated Representative. The City shall designate in writing City's Representative who shall have express authority, subject to the limitations set forth in the General Conditions, to bind the City with respect to all matters requiring the City's approval or authorization. This City's Representative shall have the authority to make decisions on behalf of the City 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 Construction Manager. Except as otherwise provided in Paragraph 1.6.2.1, General Conditions,the Architect does not have such authority. 33Architect. The City shall retain an Architect to provide Basic Services, including normal structural, mechanical and electrical engineering services. The City must authorize, in writing, and cause the Architect to provide additional service, requested by the Construction Manager which must necessarily be provided by the Architect for the Preconstruction and Construction Phases of the Work. Construction Manager has no authority to request services from the Architect on the City's behalf. Such services shall be provided in accordance with time schedules agreed to by the City, Architect and Construction Manager.Upon request of the Construction Manager,the City shall furnish to the Construction Manager a copy of the City's Agreement with - the Architect. SECTION 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES. The City shall compensate and make payments to the Construction Manager for Pre-construction —,` Phase services as follows: 4.1 Compensation. 4.1.1For the services described in Paragraphs 2.1 and 2.2, the Construction Manager's compensation shall be calculated as follows: Pre-Construction Fee:$36,520.00 4.1.1 If compensation is based on a multiple of Direct Personnel Expense, Direct Personnel Expense is defined as the direct salaries of the Construction Manager's personnel engaged in the Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave,holidays, vacations, pensions and similar contributions and benefits. 4.2 Payments. 4.2.1 Payments shall be made monthly following presentation of the Construction Manager's invoice and, where applicable, shall be in proportion to services performed. 4.2.2 Payments are due and payable thirty(30) calendar days from the date the correct and approved Construction Manager's invoice is received by the Owner. 4.23 The City stipulates that it is an exempt organization as defined by the Limited Sales,Excise and Use Tax Act and,as such,is exempt from the payment of the sales tax on materials and supplies used in the performance of this Contract. The Construction Manager shall issue exemption certificates to its Subcontractors and suppliers in lieu of said sales tax for all such materials and supplies, complying with all applicable State Comptroller'sRulings. SECTION 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES The City shall compensate the Construction Manager for Construction Phase services as follows: General Conditions:$823,313.00 5.1 Compensation. 5.1.1For the Construction Manager's performance of the Work as described in Paragraph 2.3, the City shall pay the Construction Manager in current funds the Contract Sum consisting of the Cost of the Work as defined in Paragraph 7 and the Construction Manager's Fee determined as follows: Construction Manager At Risk Fee(as a Percentage): 3.00 5.2 Guaranteed Maximum Price. 5.2.1 The sum of the Cost of the Work and the Construction Manager's Fee for the Work are guaranteed by the Construction Manager not to exceed the amount provided in Amendment No. 1, 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 is referred to in the Contract Documents as the Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Construction Manager without reimbursement by the City. In the event the Cost of Work plus the Construction Manager's Fee is less than the Guaranteed Maximum Price("GMP"),the savings shall accrue one hundred percent(100%)to the City. 53 Changes in the Work. 53.1 Adjustments to the Guaranteed Maximum Price on account of changes in the Work subsequent to the execution of Amendment No. 1 may be determined by any of the methods listed in Paragraph 1.9.2.2, General Conditions, subject to the limitations provided in the General Conditions. 53.1.1 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 Paragraph .1.9.2.2 (c), General Conditions and the term "costs" as used in Paragraph 1.9.3.6, General Conditions shall have the meanings assigned to them in the General Conditions and shall not be modified by this Paragraph 5. Adjustments to (Th subcontracts awarded with the City's prior consent on the basis of cost plus a fee shall be calculated in accordance with the terms of those subcontracts. 53.12 In calculating adjustments to the Contract,the terms"cost"and"costs" as used in the above-referenced provisions of the General Conditions shall mean the Cost of the Work as defined in Paragraph 6 of this Agreement, and the term"and a reasonable allowance for overhead and profit"shall mean the Construction Manager's Fee as defined in Paragraph 5.1.1 of this Agreement. 53.13 If no specific provision is made in Paragraph 5.1.1 for adjustment of the Construction Manager's Fee in the case of changes in the Work, or if the extent of such changes is such, in the aggregate, that application of the adjustment provisions of Paragraph 5.1.1 will cause substantial inequity to the Owner or Construction Manager, the Construction Manager's Fee shall be equitably adjusted on the basis of the Fee established for the original Work. SECTION 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 Construction Manager in the proper performance of the Work. Such costs shall be at rates not higher than those customarily paid at the place of the Project except with prior consent of the City. The Cost of the Work shall include only the items set forth in this Paragraph 6. 6.1.1.1 Labor Costs. 6.1.1.1.1 Wage Rates. Pursuant to Section 2258.023(a) of the Texas Government Code, wage rates paid by the Contractor and any subcontractor on this Project shall be not less than the general prevailing rate of per diem wages for work of a similar character in this locality as specified in the schedule of general prevailing rates of per diem wages attached hereto as ATTACHMENT 3. 6.1.1.12 Statutory Penalty. Pursuant to Section 2258.023(b) of the Texas Government Code, if the Contractor or any subcontractor violates the requirements of this section the Contractor or subcontractor as the case may be shall pay the City Sixty Dollars ($60.00) for each worker employed for each calendar day or part of the day that the worker is paid less than the stipulated wage rates. 6.1.1.13 Wages of construction workers directly employed by the Construction Manager to perform the construction of the Work at the site or, with the Owner's agreement, at off-site workshops. 6.1.1.14 Wages or salaries of the Construction Manager's supervisory and administrative personnel when stationed at the site with the Owner's agreement. See attached Position/Rate table No. Description Rate 1 Project Executive $ 165 per hour 2 Project Manager $ 125 per hour 3 Estimator $ 85 per hour 4 Safety/Field Operation $ 75 per hour Manager 5 Lead Superintendent $ 115 per hour 6 Assistant Superintendent $ 72 per hour 7 Project Engineer $ 70 per hour 8 Quality Control Inspector $ 72 per hour 9 Contract Administrator $48 per hour 10 BIM Coordinator $ 80 per hour 11 IT Coordinator $ 95 per hour 12 Labor Burden 37.75% 6.1.1.15 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. Further, the time for performance does not necessitate overtime work and the City shall not be required to reimburse the "premium time"portion of any overtime payments by Contractor, unless otherwise approved, in writing, in advance by the City. 6.1.1.1.6 Costs paid or incurred by the Construction Manager for taxes, insurance, contributions, assessments and benefits required by law or collective bargaining agreements, and, for personnel not covered by such agreements, customary benefits such as sick leave,medical and health benefits,holidays,vacations and pensions,provided that such costs are based on wages and salaries included in the Cost of the Work under Paragraphs 6.1.1.1.1 through 6.1.1.1.4. 6.1.1.1.7 Subcontract Costs. Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the subcontracts. 6.1.1.1.8 Costs of Materials and Equipment Incorporated in the Completed Construction. (a) Costs, including transportation, of materials and equipment incorporated or to be incorporated in the completed construction. (b) Costs of materials described in the preceding Paragraph 6.1.4.(a)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 City at the completion of the Work or, at the City's option, shall be sold by the Construction Manager; amounts realized, if any, from such sales shall be credited to the City as a deduction from the Cost of the Work. 61.1.19 Costs of Other Materials and Equipment, Temporary Facilities and Related Items. (a) Costs, including transportation, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, machinery, equipment, and hand tools not customarily owned by the construction workers,which are provided by the Construction Manager at the site and fully consumed in the performance of the Work; and cost less salvage value on such items if not fully consumed,whether sold to others or retained by the Construction Manager. Cost for items previously used by the Construction Manager shall mean fair market value. (b) Rental charges for temporary facilities, machinery, equipment and hand tools not customarily owned by the construction workers,which are provided by the Construction Manager at the site,whether rented from the Construction Manager or others, and costs of transportation, installation, minor repairs and replacements, dismantling and removal thereof. Rates and quantities of equipment rented shall be subject to the City's prior approval. (c) Costs of removal of debris from the site. (d) Reproduction costs,costs of telegrams,facsimile transmissions and long-distance telephone calls, postage and express delivery charges, telephone at the site and reasonable petty cash expenses of the site office. (e) That portion of the reasonable travel and subsistence expenses of the Construction Manager's personnel incurred while traveling in discharge of duties connected with the Work. 61.1.1.10 Miscellaneous Costs. (a) That portion directly attributable to this Contract of premiums for insurance andbonds. (b) Fees and assessments for the building permit and for other permits, licenses and inspections for which the Construction Manager is required by the Contract Documents to pay. (c) 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 Paragraph 6.1.8. (d) Royalties and license fees paid for the use of a particular design, process or product required by the Contract Documents; the cost of defending suits or claims for infringement of patent or other intellectual property rights arising from such requirement by the Contract Documents; payments made in accordance with legal judgments against the Construction Manager resulting from such suits or claims and payments of settlements made with the City's consent;provided,however,that such costs of legal defenses,judgment and settlements shall not be included in the calculation of the Construction Manager's Fee or the Guaranteed Maximum Price and provided that such royalties, fees and costs are not excluded by the last sentence of Paragraph 1.5.19.1, General Conditions or other provisions of the Contract Documents. (e) Data processing costs related to the Work. (f) Deposits lost for causes other than the Construction Manager's negligence or failure to fulfill a specific responsibility to the City set forth in this Agreement. 61.1.1.11 Other Costs. Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the City. The costs described in Paragraphs 6.1.1.1 through 6.1.1.11 shall be included in the Cost of the Work notwithstanding any provision of General Conditions of the Contract which may require the Construction Manager to pay such costs, unless such costs are excluded by the provisions of Paragraph 6.2. 6.2 Costs Not To BeReimbursed. 6.2.1.1 The Cost of the Work shall not include: (a) Salaries and other compensation of the Construction Manager's personnel stationed at the Construction Manager's principal office or offices other than the site office, except as specifically provided in Paragraphs 6.1.2.1 and 6.1.2.2. (b) Expenses of the Construction Manager's principal office and offices other than the site office, except as specifically provided in Paragraph 6.1. (c) included in Paragraph 6 Overhea.1. d and general expenses, except as may be expressly (d) The Construction Manager's capital expenses, including interest on the Construction Manager's capital employed for the Work. (e) Rental costs of machinery and equipment, except as specifically provided in Paragraph 6.1.5(b). (fl Costs due to the negligence of the Construction Manager or to the failure of the Construction Manger to fulfill a specific responsibility to the City set forth in this Agreement. (g) Costs incurred in the performance of Preconstruction Phase Services. (h) Except as provided in Paragraph 6.1.7, any cost not specifically and expressly described in Paragraph 6.1. (i) Costs which would cause the Guaranteed Maximum Price to be exceeded. 6.3 Discounts.Rebates and Refunds. 6.3.1.1 Cash discounts obtained on payments made by the Construction Manager shall accrue to the City if(1)before making the payment,the Construction Manager included them in an Application for Payment and received payment therefor from the City, or (2) the City has deposited funds with the Construction Manager with which to make payments; otherwise, cash discounts shall accrue to the Construction Manager.Trade discounts,rebates,refunds and amounts received from sales of surplus materials and equipment shall accrue to the City, and the Construction Manager shall make provisions so that they can be secured. 6.3.1.2 Amounts which accrue to the City in accordance with the provisions of Paragraph 6.3.1 shall be credited to the City as a deduction from the Cost of the Work. 6_4 Accounting Records. 6.4.1.1 The Construction Manager shall keep full and detailed accounts and exercise such controls as may be necessary for proper fmancial management under this Contract; the accounting and control systems shall be satisfactory to the City. The City and the City's accountants shall be afforded access to the Construction Manager's records, books, correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers, • memoranda and other data relating to this Project, and the Construction Manager shall preserve these for a period of three years after final payment, or for such longer period as may be required by law. SECTION 7 PAYMENT. 7_1 Progress Payments. 7.1.1 Based upon Applications for Payment submitted to the Architect by the Construction Manager, in a form acceptable to City and the Architect, and Certificates for Payment issued by the Architect, the City shall make progress payments on account of the Contract Sum to the Construction Manager as provided below and elsewhere in the Contract Documents. 7.1.1.1 The period covered by each Application for Payment shall be one calendar month ending on the last day of themonth. 7.1.1.2 Provided an Application for Payment is received by the Architect not later than the 30th day of a month, the City shall make payment to the Construction Manager not later than the 30th day of the following month. If an Application for Payment is received by the Architect after the application date fixed above, payment shall be made by the City not later than thirty(30)days after the Architect receives the Application for Payment. 7.1.1.3 With each Application for Payment, the Construction Manager shall submit payrolls, petty cash accounts, receipted invoices or invoices with check vouchers attached and any other evidence required by the City or Architect to demonstrate that cash disbursements already made by the Construction Manager on account of the Cost of the Work equal or exceed (1) progress payments already received by the Construction Manager; less (2) that portion of those payments attributable to the Construction Manager's Fee; plus (3)payrolls for the period covered by the present Application for Payment. 7.1.1.4 Each Application for Payment shall be based upon the most recent schedule of values submitted by the Construction Manager in accordance with the Contract Documents. The schedule of values shall allocate the entire Guaranteed Maximum Price among the various portions of the Work, except that the Construction Manager'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 City and Architect may require. This schedule, unless objected to by the City or Architect, shall be used as a basis for reviewing the Construction Manager's Applications for Payment. 7.1.1.5 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 Construction Manager on account of that portion of the Work for which the Construction Manager has made or intends to make actual payment prior to the next Application for Payment by(b)the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule ofvalues. 7.1.1.6 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: (a) Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. Pending final determination of cost to the City of changes in the Work, amounts not in dispute maybe included as provided in Paragraph 1.9.3.7, General Conditions, even though the Guaranteed Maximum Price has not yet been adjusted by Change Order. (b) Add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work or, if approved in advance by the City, suitably stored off the site at a location agreed upon in writing. (c) Add the Construction Manager's Fee, less retainage of: (i) ten percent (10%) where the GMP is less than $400,000; or(ii) five percent (5%) where the GMP is $400,000 or more. The Construction Manager's Fee shall be computed upon the Cost of the Work described in the two preceding Paragraphs at the rate stated in Paragraph 5.1.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Paragraph, shall be an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work in the two preceding Paragraphs bears to a reasonable estimate of the probable Cost of the Work upon its completion. (d) Subtract the aggregate of previous payments made by the City. (e) Subtract the shortfall, if any, indicated by the Construction Manager in the documentation required by Paragraph 7.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the City's accountants in such documentation. (f) Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Paragraph 1.11.5,General Conditions. 7.1.1.7 Except with the City's prior approval, payments to Subcontractors shall be subject to retention of not less than five percent(5%). The City and the Construction Manager shall agree upon a mutually acceptable procedure for review and approval of payments and retention for subcontracts. 7.1.1.8 Except with the City's prior approval, the Construction Manager shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. 7.1.1.9 In taking action on the Construction Manager's Applications for Payment, the Architect shall be entitled to rely on the accuracy and completeness of the information furnished by the Construction Manager and shall riot be deemed to represent that the Architect has made a detailed examination, audit or arithmetic verification of the documentation submitted in accordance with Paragraph 7.1.4 or other supporting data, that the Architect has made exhaustive or continuous on-site inspections or that the Architect has made examinations to ascertain how or for what purposes the Construction Manager has used amounts previously paid on account of the Contract. Such examinations, audits and verifications, if required by the City, will be performed by the City's accountants acting in the sole interest of the City. 7.1.2 Final Payment. 7.1.2.1 Final payment shall be made by the City to the Construction Manager when (1) the Contract has been fully performed by the Construction Manager except for the Construction Manager's responsibility to correct punch list items or nonconforming Work, as provided in Paragraph 1.14.2.2, General Conditions, 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 have been submitted by the Construction Manager and reviewed by the City's accountants; and(3)a final Certificate for Payment has then been issued by the Architect; such final payment shall be made by the City not more than 30 days after the issuance of the Architect's final Certificate for Payment, or as follows: 7.1.2.2 The amount of the final payment shall be calculated as follows: (a) Take the sum of the Cost of the Work substantiated by the Construction Manager's final accounting and the Construction Manager's Fee,but not more than the Guaranteed Maximum Price. r^ ) (b) Subtract amounts, if any, for which the Architect withholds or the City is entitled to withhold under this Agreement, in whole or in part, a final Certificate for Payment as provided in Paragraph 1.11.5.1, General Conditions or other provisions of the Contract Documents. (c) Subtract the aggregate of previous payments made by the Owner. If the aggregate of previous payments made by the City exceeds the amount due the Construction Manager,the Construction Manager shall reimburse the difference to the City. If the aggregate of previous payments made by the City exceeds the amount due the Construction Manager, the Construction Manager shall reimburse the difference to the City. 7.1.2.3 The City's accountants will review and report in writing on the Construction Manager's final accounting within 30 days after delivery of the fmal accounting to the Architect by the Construction Manager, together with all backup documentation reasonably required by the City. Based upon such Cost of the Work as the City's accountants report to be substantiated by the Construction Manager's final accounting, and provided the other conditions of Paragraph 7.2.1 have been met, the Architect will, within seven days after receipt of the written report of the Owner's accountants, either issue to the City a final Certificate for Payment with a copy to the Construction Manager or notify the Construction Manager and Owner in writing of the Architect's reasons for withholding a certificate as provided in Paragraph 1.11.5.1, General Conditions. The time periods stated in this Paragraph 7.2 supersede those stated in Paragraph 1.11.4.1, General Conditions. 7.1.2.4 If the City's accountants report the Cost of the Work as substantiated by the Construction Manager's final accounting to be less than claimed by the Construction Manager, the Construction Manager shall be entitled to proceed in accordance with Paragraph 8 without a further decision of the Architect.Unless agreed to otherwise, a demand for mediation of the disputed amount shall be made by the Construction Manager within 30 days after the Construction Manager's receipt of a copy of the Architect's final Certificate for Payment.Failure to make such demand within this 30-day period shall result in the substantiated amount reported by the City's accountants becoming binding on the Construction Manager. Pending a final resolution of the disputed amount, the City shall pay the Construction Manager the amount certified in the Architect's final Certificate for Payment. 7.1.2.5 If, subsequent to fmal payment and at the City's request, the Construction Manager incurs costs described in Paragraph 6.1 and not excluded by Paragraph 6.2 (1)to correct nonconforming Work or (2) arising from the resolution of disputes, the City shall reimburse the Construction Manager such costs and the Construction Manager's Fee, if any,related thereto on the same basis as if such costs had been incurred prior to final payment, but not in excess of the Guaranteed Maximum Price. If the Construction Manager has participated in savings, the amount of such savings shall be recalculated and appropriate credit given to the City in determining the net amount to be paid by the City to the Construction Manager. ( ) SECTION 8 MISCELLANEOUS PROVISIONS. 8_1 Dispute Resolution. 8.1.1 During both the Preconstruction and Construction Phases, claims, disputes or other matters in question between the parties to this Agreement shall be resolved as provided in Paragraph 1.6.3., General Conditions, except that, during the Preconstruction Phase, no decision by the Architect shall be a condition precedent to mediation. 8.2 Other Provisions. 8.2.1.1 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 City and the Construction Manager 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 City and Construction Manager. If anything in any document incorporated into this Agreement is inconsistent with this Agreement,this Agreement shall govern. 8.2.1.2 Ownership and Use of Documents. Paragraph 1.3.4, General Conditions, shall apply to both the Preconstruction and Construction Phases. 8.2.1.3 Governing Law. The Contract shall be governed by the laws of the State of Texas. Performance and all matters related thereto shall be in Brazoria County, Texas, United States of America. 8.2.1.4 Assignment. The City and Construction Manager 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. SECTION 9 TERMINATION OR SUSPENSION. 9_1Termination Prior To Establishing Guaranteed Maximum Price. 9.1.1 Prior to execution by both parties of Amendment No. 1 establishing the Guaranteed Maximum Price, the City may terminate this Contract at any time without cause, and the Construction Manager may terminate this Contract for any of the reasons described in Paragraph 1.16.1.1, General Conditions. 9.1.1.1 If the City or Construction Manager terminates this Contract pursuant to Paragraph 9.1 prior to commencement of the Construction Phase, the Construction Manager shall be equitably compensated for Preconstruction Phase Services performed prior to receipt of notice of termination; provided, however, that the compensation for such services shall not exceed the compensation set forth in Paragraph 4.1.1. 9.1.1.2 If the City or Construction Manager terminates this Contract pursuant to Paragraph 9.1 after commencement of the Construction Phase, the Construction Manager shall be paid,in addition to the compensation provided in Paragraph 9.1.2,an amount calculated as follows: (a) Take the Cost of the Work incurred by the Construction Manager. (b) Add the Construction Manager's Fee computed upon the Cost of the Work to the date of termination at the rate stated in Paragraph 5.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Paragraph, an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work at the time of termination bears to a reasonable estimate of the probable Cost of the Work upon its completion. (c) Subtract the aggregate of previous payments made by the City on account of the Construction Phase. The City shall also pay the Construction Manager fair compensation, either by purchase or rental at the election of the City, for any equipment owned by the Construction Manager which the City elects to retain and'which is not otherwise included in the Cost of the Work under Paragraph 9.1.3.(a). To the extent that the City elects to take legal assignment of subcontracts and purchase orders (including rental agreements), the Construction Manager shall,as a condition of receiving the payments referred to in Paragraph 9,execute and deliver all such papers and take all such steps, including the legal assignment of such subcontracts. and other contractual rights of the Construction Manager, as the City may require for the purpose of fully vesting in the City the rights and benefits of the Construction Manager under such subcontracts or purchase orders. Subcontracts, purchase orders and rental agreements entered into by the Construction Manager with the City's written approval prior to the execution of Amendment No. 1 shall contain provisions permitting assignment to the City as described above. If the City accepts such assignment,the City shall reimburse the Construction Manager with respect to all valid and properly payable costs arising under the subcontract,purchase order or rental agreement except those which would not have been reimbursable as Cost of the Work if the contract r had not been terminated. If the City elects not to accept the assignment of any subcontract, purchase order or rental agreement which would have constituted a Cost of the Work had this agreement not been terminated, the Construction Manager shall terminate such subcontract, purchase order or rental agreement and the City shall pay the Construction Manager the costs necessarily and reasonably incurred by the Construction Manager by reason of such termination, but in no event to include any overhead or profit on work not performed. 9.12 Termination Subsequent to Establishing Guaranteed Maximum Price. Subsequent to execution by both parties of Amendment No. 1,the Contract may be terminated as provided in Paragraph 1.16,General Conditions. 9.1.2.1 In the event of such termination by the Owner, the amount payable to the Construction Manager pursuant to Paragraph 1.16.1.3, General Conditions shall not exceed the amount the Construction Manager would have been entitled to receive pursuant to. Paragraphs 9.1.2 and 9.1.3.of this Agreement. 9.2.2 In the event of such termination by the Construction Manager,the amount to be paid to the Construction Manager under Paragraph 1.16.1.3, General Conditions shall not exceed the amount the Construction Manager would have been entitled to receive under Paragraphs 9.1.2 and 9.1.3 above. In no event shall Construction Manager nor any supplier or subcontractor be entitled to any fee or lost profits for work not performed. 9.3 Suspension. The Work may be suspended by the City as provided in Paragraph 1.16, General Conditions; in such case, the Guaranteed Maximum Price, if established, shall be increased as provided in Paragraph 1.16.3.2, General Conditions, except that the term "cost of performance of the Contract"in that Paragraph shall be understood to mean the Cost of the Work and the term"profit"shall be understood to mean the Construction Manager's Fee as described in Paragraphs 5.1.1 and 5.3.4 of this Agreement. SECTION 10 OTHER CONDITIONS AND SERVICES. 10.1 Construction Manager represents to the City that it has, and will keep in effect at all times during the term of this Contract, any licenses, permits, and approvals which are legally required for the Construction Manager to practice its trade. 10.1.1 Authority to do business. The Construction Manager represents that it has a certificate of authority authorizing it to do business in the State of Texas, a registered agent and registered office during the duration of this Contract. 10.1.2 ,Authority to Contract. Each party has the full power and authority to enter into and perform this Agreement, and the person signing this Agreement on behalf of each party has been properly authorized and empowered to enter into this Agreement. The persons executing this Agreement hereby represent that they have authorization to sign on behalf of their respective corporations. 10.1.3 Severability. In case any one or more of the provisions contained in this Contract 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 provision herein and this Contract shall be construed as if such invalid, illegal,or unenforceable provision had never been contained herein. 10.1.4 Presumption Against Waiver. No waiver by either party hereto of any one or more defaults by the other partyhereto in the performance of this Contract shall be construed as a waiver of any future defaults whether of a like or different character. 10.1.5 Owner's Reserved Rights. The City shall have the rights by its officers, employees or agents to examine and inspect the Construction Manager's Work at any time to verify Construction Manager's compliance with the terms of this Contract. Any approval by City or acceptance of Construction Manager's Work shall not waive any obligation of Construction Manager to correct defective work. 10.1.6 Benefit.This Contract shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns where permitted by Contract. Nothing in this Paragraph shall be construed to waive the conditions elsewhere contained in this Contract applicable to assignment by the Construction Manager. Nothing contained in this Contract shall be construed to confer any benefit upon any subcontractor or any other third party. 10.1.7 Headings.Gender.,Number. The headings are used in this Agreement for convenience and reference purposes only and are not intended to define, limit, or describe the scope or intent of any provision of this Agreement and shall have no meaning or effect upon its interpretation. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise. 10.1.8 Agreement Read. The parties acknowledge that they have had opportunity to consult l with counsel of their choice,have read,understand and intend to be bound by the terms and conditions of this Agreement. 10.1.9 Liquidated Damages. The amount of liquidated damages for the Construction Manager's failure to meet the deadlines for Substantial and/or Final Completion are fixed and agreed on by the Construction Manager because of the impracticability and extreme difficulty in fixing and ascertaining the actual damages that the City would in such an event sustain. The amounts to be charged are agreed to be damages the City would sustain and shall be retained by the City from current periodic estimates for payment or from final payment. As a result of the difficulty in estimation, calculation and ascertainment of City's damages due to a failure of Construction Manager to achieve timely completion of the Work, if the Construction Manager should neglect, fail, or refuse to either Substantially Complete or Finally Complete the Work within the time herein specified, or any proper extension thereof granted by the City's Representative pursuant to the terms of the Contract Documents, then the Construction Manager does hereby agree as part of the consideration for the awarding of this Agreement that the Owner may permanently withhold from the Construction Manager's total compensation the sum of One Thousand Five Hundred and no /100 DOLLARS ($ 1,500.00) for each and every calendar day that the Construction Manager shall be in default after the time stipulated for Substantial Completion not as a penalty,but as liquidated damages for the breach of this Agreement. It being specifically understood that the assessment of liquidated damages may be made for any failure to meet either or both of the deadlines specified for Substantial Completion and/or Final Completion. 10.1.10 Final Completion. Contractor shall achieve Final Completion within 30 calendar days of the date of Substantial Completion,failing which, Contractor shall provide a full time on site superintendent until Final Completion at its own cost and not as a cost of the Work. 10.1.11 Verification No Boycott Israel.To the extent this Contract is considered a contract for goods or services subject to § 2270.002 Texas Government Code, Contractor verifies that it i) does not boycott Israel; and ii)will not boycott Israel during the term of this Contract. List of ATTACHMENTS 1 Owner's Insurance Requirements of Contractor 2 Special Conditions of the Contract 3 Wage Rate finding for Building Construction In Brazoria County 4 Appendix A Title VI Assurances List of Exhibits A Contractor's Insurance Certificates B Performance Bond C Payment Bond CONTRACTOR CITY 4F E By: By: Ci By/ Printed Name: Brandon Meyers President - Houston Division Date: 1 ' 21 Title. ...........� Date: November 15, 2019 { . APPROVED: '. ........... ..:.•• .`APPROVED: 1411110 • Notary City Secretary Date: November 15, 2019 0 "* D c23'-o2-13o2-6 a.. p,•D.�ewy� Date: Lam. i*- f�tE oc •ryt` ATTACHMENT 1 OWNER'S INSURANCE REQUIREMENTS OF CONTRACTOR 1. Definitions. For purposes of this Agreement: 1.1 Owner Parties. "Owner Parties" means (a) the City of Pearland, its successors and assigns, and the Engineer, (b) any officers, employees, or agents of such persons or entities, and(c) others as required by the Contract Documents, if any. 1.2 Contractor. "Contractor" shall mean the vendor providing the service or work to be performed under this Agreement. 1.3 Subcontractor. "Subcontractor"shall include subcontractors of any tier. 1.4 ISO. "ISO"means Insurance Services Office. 2. Contractor Insurance Representations to Owner Parties 2.1 It is expressly understood and agreed that the insurance coverages required herein: 2.1.1 represent Owner Parties' minimum requirements and are not to be construed to void or limit the Contractor's indemnity obligations as contained in this Agreement nor represent in any manner a determination of the insurance coverages the Contractor should or should not maintain for its own protection; and 2.1.2 are being, or have been, obtained by the Contractor in support of the Contractor's liability and indemnity obligations under this Agreement. Neither the requirements as to insurance to be carried as provided for herein, the insolvency, bankruptcy or failure of any insurance company carrying insurance of the Contractor, nor the failure of any insurance company to pay claims accruing, shall be held to affect, negate or waive any of the provisions of this Agreement. 2.2 Failure to obtain and maintain the required insurance shall constitute a material breach of, and default under, this Agreement. If the Contractor shall fail to remedy such breach within five (5) business days after notice by the Owner, the Contractor will be liable for any and all costs, liabilities, damages and penalties resulting to the Owner Parties from such breach, unless a written waiver of the specific insurance requirement(s) is provided to the Contractor by the Owner. In the event of any failure by the Contractor to comply with the provisions of this Agreement, the Owner may, without in any way compromising or waiving any right or remedy at law or in equity, on notice to the Contractor, purchase such insurance, at the Contractor's expense, provided that the Owner shall have no obligation to do so and if the Owner shall do so, the Contractor shall not be relieved of or excused from the obligation to obtain and maintain such insurance amounts and coverages. 10-2012 00700-Cl 3. Conditions Affecting All Insurance Required Herein 3.1 Cost of Insurance. All insurance coverage shall be provided at the Contractor's sole expense. 3.2 Status and Rating of Insurance Company. All insurance coverage shall be written through insurance companies authorized to do business in the state in which the work is to be performed and rated no less than A-: VII in the most current edition of A. M. Best's Key Rating Guide. 3.3 Restrictive, Limiting, or Exclusionary Endorsements. All insurance coverage shall be provided to the Owner Parties in compliance with the requirements herein and shall contain no endorsements that restrict, limit, or exclude coverage required herein in any manner without the prior express written approval of the Owner. 3.4 Limits of Liability. The limits of liability may be provided by a single policy of insurance or by a combination of primary and umbrella policies, but in no event shall the total limits of liability available for any one occurrence or accident be less than the amount required herein. 3.5 Notice of Cancellation, Nonrenewal, or Material Reduction in Coverage. All insurance coverage shall contain the following express provision: In the event of cancellation, non-renewal, or material reduction in coverage affecting the certificate holder, thirty (30) days prior written notice shall be given to the certificate holder by certified mail or registered mail, return receipt requested. 3.6 Waiver of Subrogation. The Contractor hereby agrees to waive its rights of recovery from the Owner Parties with regard to all causes of property and/or liability loss and shall cause a waiver of subrogation endorsement to be provided in favor of the Owner Parties on all insurance coverage carried by the Contractor, whether required herein or not. 3.7 Deductible/Retention. Except as otherwise specified herein, no insurance required herein shall contain a deductible or self-insured retention in excess of $25,000 without prior written approval of the Owner. All deductibles and/or retentions shall be paid by, assumed by, for the account of, and at the Contractor's sole risk. The Contractor shall not be reimbursed for same. 4. Maintenance of Insurance. The following insurance shall be maintained in effect with limits not less than those set forth below at all times during the term of this Agreement and thereafter as required: 4.1 Commercial General Liability Insurance 4.1.1 Coverage. Such insurance shall cover liability arising out of all locations and operations of the Contractor, including but not limited to liability assumed under this contract (including the tort liability of another assumed 10-2012 00700-C2 in a business contract). Defense shall be provided as an additional benefit and not included within the limit of liability. 4.1.2 Form. Commercial General Liability Occurrence form (at least as broad as an unmodified ISO CG 0001 0798 or its equivalent). 4.1.3 Amount of Insurance. Coverage shall be provided with limits of not less than: Each Occurrence Limit $1,000,000 General Aggregate Limit $2,000,000 Product-Completed Operations Aggregate Limit $2,000,000 Personal and Advertising Injury Limit $1,000,000 4.1.4 Required Endorsements a. Additional Insured. Additional insured status shall be provided in favor of the Owner Parties on any of the following: i. ISO form CG 20 10 11 85; or ii. ISO form CG 20 26 11 85; or iii. a combination of ISO forms CG 20 33 10 01 and CG 20 37 1001; or iv. any form providing equivalent protection to Owner. b. Designated Construction Project(s) Aggregate Limit. The aggregate limit shall apply separately to this Agreement through use of an ISO CG 25 03 03 97 endorsement or its equivalent. c. Notice of Cancellation, Nonrenewal or Material Reduction in Coverage, as required in 3.5, above. d. Personal Injury Liability. The personal injury contractual liability exclusion shall be deleted. e. Primary and Non-Contributing Liability. It is the intent of the parties to this Agreement that all insurance required herein shall be primary to all insurance available to the Owner Parties. The obligations of the Contractor's insurance shall not be affected by any other insurance available to the Owner Parties and shall seek no contribution from the Owner Parties' insurance, whether primary, excess contingent, or on any other basis. The Contractor's insurance coverage shall be endorsed to provide such primary and non- contributing liability. f. Waiver of Subrogation, as required in 3.6, above. 4.1.5 Continuing Commercial General Liability Insurance. The Contractor shall maintain such insurance in identical coverage, form and amount, including required endorsements, for at least one (1) year following Date of Substantial Completion of the Work to be performed under this Agreement. The Contractor shall provide written representation to Owner stating Work completion date. 10-2012 00700-C3 4.2 Auto Liability Insurance 4.2.1 Coverage. Such insurance shall cover liability arising out of any auto (including owned, hired, and non-owned). 4.2.2 Form. Business Auto form (at least as broad as an unmodified ISO CA 0001 or its equivalent). 4.2.3 Amount of Insurance. Coverage shall be provided with a limit of not less than$1,000,000. 4.2.4 Required Endorsements a. Notice of Cancellation, Nonrenewal or Material Reduction in Coverage, as required in 3.5, above. b. Waiver of Subrogation, as required in 3.6, above. 4.3 Employer's Liability Insurance 4.3.1 Coverage. Employer's Liability Insurance shall be provided as follows: 4.3.2 Amount of Insurance. Coverage shall be provided with a limit of not less than: Employer's Liability: $1,000,000 each accident and each disease. 4.3.3 Required Endorsements a. Notice of Cancellation, Nonrenewal or Material Reduction in Coverage, as required in 3.5, above. b. Waiver of Subrogation, as required in 3.6, above. 4.4 Umbrella Liability Insurance , 4.4.1 Coverage. Such insurance shall be excess over and be no less broad than all coverages described above and shall include a drop-down provision for exhaustion of underlying limits. 4.4.2 Form. This policy shall have the same inception and expiration dates as the commercial general liability insurance required above. 4.4.3 Amount of Insurance. Coverage shall be provided with a limit of not less than$5,000,000. 4.4.4 Continuing Umbrella Liability Insurance. The Contractor shall maintain such insurance in identical coverage, form and amount, including required endorsements, for at least one (1) year following Date of Substantial Completion of the Work to be performed under this Agreement. The Contractor shall provide written representation to the Owner stating Work completion date. 10-2012 00700-C4 4.5 Professional Liability Insurance 4.5.1 Coverage. The Contractor shall provide professional liability insurance for any professional design or engineering drawing required by the work. Such insurance shall indemnify the Owner from claims arising from the negligent performance of professional services of any type, including but not limited to design or design/build services as part of the Work to be performed. 4.5.2 Form. This insurance shall include prior acts coverage sufficient to cover all services rendered by the Contractor and by its consultants under this Agreement. It is recognized that this coverage may be provided on a Claims-Made basis. 4.5.3 Amount of Insurance. Coverage shall be provided with a limit of not less than$1,000,000. 4.5.4 Continuing Professional Liability Insurance. The Contractor shall maintain such insurance in identical coverage, form and amount for at least one (1) year following Date of Substantial Completion of the Work to be performed under this Agreement. The Contractor shall provide written representation to the Owner stating Work completion date. 4.6 Builder's Risk 4.6.1 Insureds. Insureds shall include: a. Owner, General Contactor and all Loss Payees and Mortgagees as Named Insureds; and b. subcontractors of all tiers in the Work as Additional Insureds. 4.6.2 Covered Property. Such insurance shall cover: a. all structure(s) under construction, including retaining walls, paved surfaces and roadways, bridges, glass, foundation(s), footings, underground pipes and wiring, excavations, grading, backfilling or filling; b. all temporary structures (e.g., fencing, scaffolding, cribbing, false work, forms, site lighting, temporary utilities and buildings) located at the site; c. all property including materials and supplies on site for installation; d. all property including materials and supplies at other locations but intended for use at the site; e. all property including materials and supplies in transit to the site for installation by all means of transportation other than ocean transit; and f. other Work at the site identified in the Agreement to which this Exhibit is attached. 10-2012 00700-C5 Form a. Coverage shall be at least as broad as an unmodified ISO Special form, shall be provided on a completed-value basis, and shall be primary to any other coverage insurance available to the insured parties, with that other insurance being excess, secondary and non- contributing. b. No protective safeguard warranty shall be permitted. c. Required coverage shall further include: i. Additional expenses due to delay in $ TBD completion of project (where applicable) ii. Agreed value Included without sublimit iii. Damage arising from error, omission or Included without sublimit deficiency in construction methods, design, specifications, workmanship or materials, including collapse iv. Debris removal additional limit 25% of direct damage loss v. Earthquake (where applicable) $ TBD vi. Earthquake sprinkler leakage (where $ TBD applicable) vii. Expediting expenses $ TBD viii. Flood(where applicable) $ TBD ix. Freezing Included without sublimit x. Mechanical breakdown, including hot & Included without sublimit cold testing (where applicable) xi. Notice of cancellation, non-renewal or Included material reduction—60 days prior written notice to each insured xii. Occupancy clause, as required in F, Included below xiii. Ordinance or law Included without sublimit xiv. Pollutant clean-up and removal $ TBD xv. Preservation of property Included without sublimit xvi. Replacement cost Included xvii. Theft Included without sublimit xviii. Waiver of subrogation as required in G, Included below. 4.6.3 Amount of Insurance. Coverage shall be provided in an amount equal at all times to the full replacement value and cost of debris removal for any single occurrence. 10-2012 00700-C6 4.6.4 Deductibles. Deductibles shall not exceed the following: a. All Risks of Direct Damage, Per $5,000 Occurrence, except b. Delayed Opening Waiting Period 5 Days c. Flood, Per Occurrence $25,000 or excess of NFIP if in Flood Zone A, BorV d. Earthquake and Earthquake Sprinkler $25,000 Leakage, Per Occurrence 4.6.5 Termination of Coverage. The termination of coverage provision shall be endorsed to permit occupancy of the covered property being constructed so long as such occupancy does not exceed 20% of the usable area of the property. This insurance shall be maintained in effect, unless otherwise provided for in the Contract Documents, until the earliest of the following dates: a. the date on which all persons and organizations who are insureds under the policy agree that it shall be terminated; b. the date on which fmal payment, as provided for in the Agreement to which this Exhibit is attached, has been made; or c. the date on which the insurable interests in the Covered Property of all insureds other than Contractor have ceased. 4.6.6 Waiver of Subrogation. The waiver of subrogation provision shall be endorsed as follows: a. A waiver of subrogation shall be provided in favor of all insureds. b. The waiver of subrogation provisions shall be endorsed as follows: Should a covered loss be subrogated, either in whole or in part, your rights to any recovery will come first, and we will be entitled to a recovery only after you have been fully compensated for the loss. 5. Intentionally left blank. 6. Evidence of Insurance 6.1 Provision of Evidence. Evidence of the insurance coverage required to be maintained by the Contractor, represented by certificates of insurance, evidence of insurance, and endorsements issued by the insurance company or its legal agent, and must be furnished to the Owner prior to commencement of Work and not later than fifteen (15) days after receipt of this Agreement. New certificates of insurance, evidence of insurance, and endorsements shall be provided to the Owner prior to the termination date of the current certificates of insurance, evidence of insurance, and endorsements. 10-2012 00700-C7 6.2 Form 6.2.1 All property insurance required herein shall be evidenced by ACORD form 28, "Evidence of Property Insurance". 6.2.2 All liability insurance required herein shall be evidenced by ACORD form 25, "Certificate of Insurance". 6.3 Specifications. Such certificates of insurance, evidence of insurance, and endorsements shall specify: 6.3.1 The Owner as a certificate holder with correct mailing address. 6.3.2 Insured's name, which must match that on this Agreement. 6.3.3 insurance companies affording each coverage, policy number of each coverage, policy dates of each coverage, all coverages and limits described herein, and signature of authorized representative of insurance company. 6.3.4 Producer of the certificate with correct address and phone number listed. 6.3.5 Additional insured status required herein. 6.3.6 Amount of any deductibles and/or retentions. 6.3.7 Cancellation, non-renewal and material reduction in coverage notification as required by this Agreement. Additionally, the words "endeavor to" and "but failure to mail such notice shall impose no obligation or liability of any kind upon Company, it agents or representatives" shall be deleted from the cancellation provision of the ACORD 25 certificate of insurance form. 6.3.8 Designated Construction Project Aggregate Limits required herein. 6.3.9 Personal Injury contractual liability required herein. 6.3.10 Primary and non-contributing status required herein. 6.3.11 Waivers of subrogation required herein. 6.4 Required Endorsements. A copy of each of the required endorsements shall also be provided. 6.5 Failure to Obtain. Failure of any Owner Party to demand such certificate or other evidence of full compliance with these insurance requirements or failure of any Owner Party to identify a deficiency from evidence that is provided shall not be construed as a waiver of the Contractor's obligation to maintain such insurance. 6.6 Certified Copies. Upon request of any Owner Party, the Contractor shall provide to the Owner a certified copy of all insurance policies required herein within ten (10) days of any such request. Renewal policies, if necessary, shall be delivered to the Owner prior to the expiration of the previous policy. 6.7 Commencement of Work. Commencement of Work without provision of the required certificate of insurance, evidence of insurance and/or required endorsements, or without compliance with any other provision of this Agreement, shall not constitute a waiver by any Owner Party of any rights. The Owner shall have the right, but not the obligation, of prohibiting the Contractor or any subcontractor from performing any Work until such certificate of insurance, evidence of insurance and/or required endorsements are received and approved by the Owner. 10-2012 00700-C8 7. Insurance Requirements of Contractor's Subcontractors 7.1 Insurance similar to that required of the Contractor shall be provided by all subcontractors (or provided by the Contractor on behalf of subcontractors) to cover operations performed under any subcontract agreement. The Contractor shall be held responsible for any modification in these insurance requirements as they apply to subcontractors. The Contractor shall maintain certificates of insurance from all subcontractors containing provisions similar to those listed herein (modified to recognize that the certificate is from subcontractor) enumerating, among other things, the waivers of subrogation, additional insured status, and primary liability as required herein, and make them available to the Owner upon request. 7.2 The Contractor is fully responsible for loss and damage to its property on the site, including tools and equipment, and shall take necessary precautions to prevent damage to or vandalism, theft, burglary, pilferage and unexplained disappearance of property. Any insurance covering the Contractor's or its subcontractor's property shall be the Contractor's and its subcontractor's sole and complete means or recovery for any such loss. To the extent any loss is not covered by said insurance or subject to any deductible or co-insurance, the Contractor shall not be reimbursed for same. Should the Contractor or its subcontractors choose to self insure this risk, it is expressly agreed that the Contractor hereby waives, and shall cause its subcontractors to waive, any claim for damage or loss to said property in favor of the Owner Parties. 8. Use of the Owner's Equipment. The Contractor, its agents, employees, subcontractors or suppliers shall use the Owner's equipment only with express written permission of the Owner's designated representative and in accordance with the Owner's terms and condition for such use. If the Contractor or any of its agents, employees, subcontractors or suppliers utilize any of the Owner's equipment for any purpose, including machinery, tools, scaffolding, hoists, lifts or similar items owned, leased or under the control of the Owner, the Contractor shall defend, indemnify and be liable to the Owner Parties for any and all loss or damage which may arise from such use. 9. Release and Waiver. The Contractor hereby releases, and shall cause its subcontractors to release, the Owner Parties from any and all claims or causes of action whatsoever which the Contractor and/or its subcontractors might otherwise now or hereafter possess resulting in or from or in any way connected with any loss covered by insurance, whether required herein or not, or which should have been covered by insurance required herein, including the deductible and/or uninsured portion thereof, maintained and/or required to be maintained by the Contractor and/or its subcontractors pursuant to this Agreement. 10-2012 00700-C9 ATTACHMENT 2 SPECIAL CONDITIONS OF AGREEMENT The following Special Conditions modify the General Conditions, Document 00700. Where a portion of the General Conditions is modified or deleted by these Special Conditions, the unaltered portions of the General Conditions shall remain in effect. ARTICLE 1 DEFINITIONS AND INTERPRETATIONS 1.01 Add the following paragraph to the end of Article 1.01: The OWNER'S representative on the project site is: TBD telephone: The CONSTRUCTION MANAGER is: TBD telephone: The CONSTRUCTION INSPECTOR is: TBD ARTICLE 4 RIGHTS AND RESPONSIBILITIES OF THE CONTRACTOR EXHIBIT A Owner's Insurance Requirements of Contractor, Article 4.6 Builder's Risk— Builder's Risk Insurance is required for this project. ARTICLE 5 PROSECUTION AND PROGRESS Temporary Facilities Contractor is be required to provide an on-site construction office for the duration of this project. Contractor is required to coordinate with the Owner for all Traffic Control Documents. Contractor to coordinate with the Architect & Owner for procurement of Traffic Control Documents prior to TXDOT permitting. Contractor is to keep a minimum of one lane open at all times, in both directions. No lane closures to extend beyond the defined work day. END OF SECTION 08/2018 00800- 1 of 1 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 General Decision Number: TX180282 09/14/2018 TX282 ATTACHMENT 3 Superseded General Decision Number: TX20170282 State: Texas Construction Type: Building County: Brazoria County in Texas. BUILDING CONSTRUCTION PROJECTS (does not include single family homes or apartments up to and including 4 stories). Note: Under Executive Order (EO) 13658, an hourly minimum wage of $10.35 for calendar year 2018 applies to all contracts subject to the Davis-Bacon Act for which the contract is awarded (and any solicitation was issued) on or after January 1, 2015. If this contract is covered by the EO, the contractor; must pay all workers in any classification listed on this wage determination at least $10.35 per hour (or the applicable wage rate listed on this wage determination, if it is higher) for all hours spent performing on the contract in calendar year 2018. The EO minimum wage rate will be adjusted annually. Please note that this EO applies to the above-mentioned types of contracts entered into by the federal government that are subject to the Davis-Bacon Act itself, but it does not apply to contracts subject only to the Davis-Bacon Related Acts, including those set forth at 29 CFR 5.1(a)(2)-(60). Additional information on contractor requirements and worker protections under the EO is available at www.dol.gov/whd/govcontracts. Modification Number Publication Date 0 01/05/2018 1 01/12/2018 2 08/03/2018 3 09/14/2018 ASBE0022-009 06/01/2018 Rates Fringes ASBESTOS WORKER/HEAT & FROST INSULATOR (Duct, Pipe and Mechanical System Insulation) $ 24.15 13.29 BOIL0074-003 01/01/2017 Rates Fringes BOILERMAKER $ 28.00 22.35 CARP0551-009 04/01/2016 Rates Fringes CARPENTER (Excludes Drywall Hanging, Form Work, and Metal Stud Installation) $ 23.05 8.78 ELEC0716-005 08/28/2017 Rates Fringes https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 1/7 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 ELECTRICIAN (Excludes Low Voltage Wiring and Installation of Alarms) $ 32.25 9.14 ELEV0031-003 01/01/2018 Rates Fringes ELEVATOR MECHANIC $ 41.28 32.645+a+b FOOTNOTES: A. 6% under 5 years based on regular hourly rate for all hours worked. 8% over-5 years based on regular hourly rate for all hours worked. B. Holidays: New Year's Day; Memorial Day; Independence Day; Labor Day; Thanksgiving Day; Friday after Thanksgiving Day; Christmas Day; and Veterans Day. ENGI0450-002 04/01/2014 Rates Fringes POWER EQUIPMENT OPERATOR Cranes $ 34.85 9.85 * IRON0084-011 06/01/2018 Rates Fringes ;'MIRONWORKER, ORNAMENTAL $ 23.77 7.12 * IRON0135-002 09/01/2018 Rates Fringes IRONWORKER, STRUCTURAL $ 31.85 12.14 PLAS0079-004 01/01/2015 Rates Fringes PLASTERER $ 19.92 1.00 PLUM0068-002 10/01/2017 Rates Fringes PLUMBER $ 34.90 10.54 PLUM0211-010 10/01/2017 Rates Fringes PIPEFITTER (Including HVAC Pipe Installation) $ 34.10 11.71 1 SHEE0054-003 07/01/2017 Rates Fringes SHEET METAL WORKER (Excludes HVAC Duct and Unit Installation) $ 27.72 13.70 https://www.wdol.gov/wdol/scafiles/davisbaconfTX282.dvb?v=3 2/7 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbacon7X282.dvb?v=3 SUTX2014-008 07/21/2014 Rates Fringes _ ACOUSTICAL CEILING MECHANIC $ 16.41 3.98 BRICKLAYER $ 19.86 0.00 CAULKER $ 15.36 0.00 CEMENT MASON/CONCRETE FINISHER $ 13.33 0.00 DRYWALL FINISHER/TAPER $ 16.30 3.71 DRYWALL HANGER AND METAL STUD INSTALLER $ 17.45 3.96 ELECTRICIAN (Alarm Installation Only) $ 17.97 3.37 ELECTRICIAN (Low Voltage Wiring Only) $ 18.00 1.68 FLOOR LAYER: Carpet $ 20.00 0.00 FORM WORKER $ 12.57 0.00 GLAZIER $ 19.12 4.41 INSULATOR - BATT $ 14.87 0.73 IRONWORKER, REINFORCING $ 12.10 0.00 LABORER: Common or General $ 10.55 0.00 LABORER: Mason Tender - Brick $ 13.37 0.00 LABORER: Mason Tender - Cement/Concrete $ 10.86 0.00 LABORER: Pipelayer $ 12.94 0.00 LABORER: Roof Tearoff $ 11.28 0.00 LABORER: Landscape and Irrigation $ 9.49 0.00 LATHER $ 19.73 0.00 OPERATOR: Backhoe/Excavator/Trackhoe $ 15.56 0.00 OPERATOR: Bobcat/Skid Steer/Skid Loader $ 13.93 0.00 OPERATOR: Bulldozer $ 20.77 0.00 OPERATOR: Drill $ 16.22 0.34 OPERATOR: Forklift $ 15.64 0.00 OPERATOR: Grader/Blade $ 13.37 0.00 OPERATOR: Loader $ 13.55 0.94 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 3/7 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbaconlTX282.dvb?v=3 OPERATOR: Mechanic $ 17.52 3.33 OPERATOR: Paver (Asphalt, 'Aggregate, and Concrete) $ 16.03 0.00 OPERATOR: Roller $ 16.00 0.00 PAINTER (Brush, Roller and Spray), Excludes Drywall Finishing/Taping $ 16.77 4.51 ROOFER $ 15.40 0.00 SHEET METAL WORKER (HVAC Duct Installation Only) $ 20.05 4.19 SHEET METAL WORKER (HVAC Unit Installation Only) $ 19.67 2.24 SPRINKLER FITTER (Fire Sprinklers) $ 22.17 9.70 TILE FINISHER $ 12.00 0.00 TILE SETTER $ 16.17 0.00 TRUCK DRIVER: 1/Single Axle Truck $ 14.95 5.23 TRUCK DRIVER: Dump Truck $ 12.39 1.18 TRUCK DRIVER: Flatbed Truck $ 19.65 8.57 TRUCK DRIVER: Semi-Trailer Truck $ 12.50 0.00 TRUCK DRIVER: Water Truck $ 12.00 4.11 WATERPROOFER $ 14.39 0.00 WELDERS - Receive rate prescribed for craft performing operation to which welding is incidental. Note: Executive Order (EO) 13706, Establishing Paid Sick Leave for Federal Contractors applies to all contracts subject to the Davis-Bacon Act for which the contract is awarded (and any solicitation was issued) on or after January 1, 2017. If this contract is covered by the EO, the contractor must provide employees with 1 hour of paid sick leave for every 30 hours they work, up to 56 hours of paid sick leave each year. Employees must be permitted to use paid sick leave for their own illness, injury or other health-related needs, including preventive care; to assist a family member (or person who is like family to the employee) who is ill, injured, or has other health-related needs, including preventive care; or for reasons :resulting from, or to assist a family member (or person who is like family to the employee) who is a victim of, domestic violence, sexual assault, or stalking. Additional information on contractor requirements and worker protections under the EO is available at www.dol.gov/whd/govcontracts. https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 4/7 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbaconfTX282.dvb?v=3 Unlisted classifications needed for work not included within the scope of the classifications listed may be added after award only as provided in the labor standards contract clauses (29CFR 5.5 (a) (1) (ii)). The body of each wage determination lists the classification and wage rates that have been found to be prevailing for the cited type(s) of construction in the area covered by the wage determination. The classifications are listed in alphabetical order of "identifiers" that indicate whether the particular) rate is a union rate (current union negotiated rate for local), a survey rate (weighted average rate) or a union average rate (weighted union average rate). Union Rate Identifiers A four letter classification abbreviation identifier enclosed in dotted lines beginning with characters other than "SU" or "UAVG" denotes that the union classification and rate were prevailing for that classification in the survey. Example: PLUM0198-005 07/01/2014. PLUM is an abbreviation identifier of the union which prevailed in the survey for this classification, which in this example would be Plumbers. 0198 indicates the local union number or district council number where applicable, i.e., Plumbers Local 0198. The next number, 005 in the example, is an internal number used in processing the wage determination. 07/01/2014 is the effective date of the \most current negotiated rate, which in this example is July 1, 2014. Union prevailing wage rates are updated to reflect all rate changes in the collective bargaining agreement (CBA) governing this classification and rate. Survey Rate Identifiers Classifications listed under the "SU" identifier indicate that no one rate prevailed for this classification in the survey and the published rate is derived by computing a weighted average rate based on all the rates reported in the survey for that classification. As this weighted average rate includes all rates reported in the survey, it may include both union and non-union rates. Example: SULA2012-007 5/13/2014. SU indicates the rates are survey rates based on a weighted average calculation of rates and are not majority rates. LA indicates the State.of Louisiana. 2012 is the year of survey on which these classifications and rates are based. The next number, 007 in the example, is an internal number used in producing the wage determination. 5/13/2014 indicates the survey completion date for the classifications and rates under that identifier. Survey wage rates are not updated and remain in effect until a new survey is conducted. Union Average Rate Identifiers Classification(s) listed under the UAVG identifier indicate that no single majority rate prevailed for those classifications; however, 100% of the data reported for the classifications was union data. EXAMPLE: UAVG-OH-0010 08/29/2014. UAVG indicates that the rate is a weighted union https://www.wdol.gov/wdol/scafiles/davisbaconfTX282.dvb?v=3 5/7 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 average rate. OH indicates the state. The next number, 0010 in the example, is an internal number used in producing the wage determination. 08/29/2014 indicates the survey completion date for the classifications and rates under that identifier. 'A UAVG rate will be updated once a year, usually in January of each year, to reflect a weighted average of the current negotiated/CBA rate of the union locals from which the rate is based. WAGE DETERMINATION APPEALS PROCESS 1.) Has there been an initial decision in the matter? This can be: * an existing published wage determination * a survey underlying a wage determination * a Wage and Hour Division letter setting forth a position on a wage determination matter * a conformance (additional classification and rate) ruling On survey related matters, initial contact, including requests for summaries of surveys, should be with the Wage and Hour Regional Office for the area in which the survey was conducted because those Regional Offices have responsibility for the Davis-Bacon survey program. If the response from this initial contact is not satisfactory, then the process described in 2.) ,land 3.) should be followed. With regard to any other matter not yet ripe for the formal process described here, initial contact should be with the Branch of Construction Wage Determinations. Write to: Branch of Construction Wage Determinations Wage and Hour Division U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 2.) If the answer to the question in 1.) is yes, then an interested party (those affected by the action) can request review and reconsideration from the Wage and Hour Administrator (See 29 CFR Part 1.8 and 29 CFR Part 7). Write to: Wage and Hour Administrator U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 The request should be accompanied by a full statement of the interested party's position and by any information (wage payment data, project description, area practice material, etc.) that the requestor considers relevant to the issue. 3.) If the decision of the Administrator is not favorable, an interested party may appeal directly to the Administrative Review Board (formerly the Wage Appeals Board). Write to: Administrative Review Board U.S. Department of Labor 200 Constitution Avenue, N.W. https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 6/7 10/15/2018 https://www.wdol.gov/wdol/scafiles/davisbaconfTX282.dvb?v=3 Washington, DC 20210 4.) All decisions by the Administrative Review Board are final. END OF GENERAL DECISION https://www.wdol.gov/wdol/scafiles/davisbacon/TX282.dvb?v=3 7/7 ATTACHMENT 4 Title VI Nondiscrimination Assurances - APPENDIX A During the performance of this contract, the contractor, for itself, its assignees and successors in interest (hereinafter referred to as the "contractor") agrees as follows: (1) Compliance with Regulations: The contractor shall comply with the Regulations relative to nondiscrimination in Federally-Assisted programs of the Department of Transportation (hereinafter, "DOT") Title 49, Code of Federal Regulations, Part 21, as they may be amended from time to time, (hereinafter referred to as the Regulations), which are herein incorporated by reference and made a part of this contract. (2) Nondiscrimination: The contractor, with regard to the work performed by it during the contract, shall not discriminate on the grounds of race, color, or national origin in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The contractor shall not participate either directly or indirectly in the discrimination prohibited by Section 21.5 of the Regulations, including employment practices when the contract covers a program set forth in Appendix B of the Regulations. (3) Solicitations for Subcontracts, including Procurements of Materials and Equipment: In all solicitations either by competitive bidding or negotiation made by the contractor for work to be performed under a subcontract, including procurements of materials or leases of equipment, each potential subcontractor or supplier shall be notified by the contractor of the contractor's obligations under this contract and the Regulations relative to nondiscrimination on the grounds of race, color, or national origin. (4) Information and Reports: The contractor shall provide all information and reports required by the Regulations or directives issued pursuant thereto, and shall permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the Sub-Recipient or the Federal Highway Administration to be pertinent to ascertain compliance with such Regulations, orders and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish this information the contractor shall so certify to the Sub-Recipient, or the Federal Highway Administration as appropriate, and shall set forth what efforts it has made to obtain the information. (5) Sanctions for Noncompliance: In the event of the contractor's noncompliance with the nondiscrimination provisions of this contract,the Sub-Recipient shall impose such contract sanctions as it or the Federal Highway Administration may determine to be appropriate, including, but not limited to: (a) withholding of payments to the contractor under the contract until the contractor complies, and/or (b) cancellation, termination or suspension of the contract, in whole or in part. (6) Incorporation of Provisions:The contractor shall include the provisions of paragraphs (1) through (6) in every subcontract, including procurements of materials and leases of equipment, unless exempt by the Regulations, or directives issued pursuant thereto. The contractor shall take such action with respect to any subcontract or procurement as the Sub-Recipient or the Federal Highway Administration may direct as a means of enforcing such provisions including sanctions for non-compliance. Provided, however, that, in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or supplier as a result of such direction, the contractor may request the Sub-Recipient to enter into such litigation to protect the interests of the Sub-Recipient, and,in addition,the contractor may request the United States to enter into such litigation to protect the interests of the United States. EXHIBT A CONTRACTOR'S INSURANCE CERTIFICATES • Aco o® CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DDIYYYY) �� 10/15/2019 I THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED,the policy(fes)must have ADDITIONAL INSURED provisions or be endorsed. if SUBROGATION IS WAIVED,subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s). PRODUCER CONTACT ViCki COOK NAME: Adams insurance Service, Inc. PHONE FAX 427 West 20th Street,Suite 501 (Arc,No,Eat):(713)869 8346 {MC.No);713/869-9144 Houston TX 77018 ADDRESS: vcook@adamsins.com INSURER(S)AFFORDING COVERAGE NAICB INSURER A:American Contractors Insurance Co.RRG 12300 INSURED SGAOMIN-0r INSURER B:Employers Mutual Casualty Company 21415 es Construction Corp. INSURER c:Gemini Insurance Company 10833 13800West Road Houston,TX 77041 INSURER D:ACIG insurance Company 19984 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER:1428798760 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR SU TYPE OF INSURANCE ADDL ER POLICY EFF POLICY EXP LTR 1NSD WVD POLICY NUMBER (MM/DD/YYYY) (MM/DDIVYYTI LIMITS A X COMMERCIAL GENERAL LIABILITY Y Y GL19ABC00046 6/1/2019 6/1/2020 EACH OCCURRENCE $10,000,000 CLAIMS MADE X OCCUR DAMAGE TO RENTED PREMISES(Ea occurrence) $100,000 MED EXP(Any one person) $5,000 PERSONAL a ADV INJURY $10,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $10,000,000 POLICY X LOC PRODUCTS•COMP/OP AGO $10,000,000 OTHER: $ AUTOMOBILE LIABILITY Y Y 3E75357 6/1/2019 6/1/2020 jEa MBddeD 81NGLE LIMIT $1,000,000 ' X ANY AUTO BODILY INJURY(Per person) $ _ OWNED SCHEDULED BODILY INJURY $ AUTOS ONLY AUTOS (Per accident) x HIRED X NON-OWNED PROPERTY DAMAGE _ AUTOS ONLY _ AUTOS ONLY (Pat accident) $ $ C X UMBRELLA LIAB X OCCUR Y Y CEX0960154103 6/1/2019 6/1/2020 EACH OCCURRENCE $10,000,000 EXCESS LiAB CLAIMS-MADE AGGREGATE $10,000,000 DED RETENTION$ $ D WORKERS COMPENSATION Y WCA000006319 6/1/2019 6/1/2020 X STATUTE OTH- ER AND EMPLOYERS'LIABILITY Y/N ANYPROPRIETORIPARTNERIEXECUTNE E.L.EACH ACCIDENT $1,000,000 OFFICEFUMEMB£REXCLUDED? I N N/A (Mandatory In NH) E.L.DISEASE-EA EMPLOYEE $1,000,000 If yes,describe under DESCRIPTION OF OPERATIONS below E.L.DISEASE-POLICY LIMIT $1,000,000 DESCRIPTION OF OPERATIONS!LOCATIONS!VEHICLES(ACORD 101,Additional Remarks Schedule,may be attached If more space Is required) The Automobile policy includes the following endorsements:1)CA7450-Blanket Additional Insured and Waiver of Subrogation as required by written contract executed prior to the bodily injury or property damage.2)IL7447.6-Notice of Cancellation-30 days blanket as required by written contract. The General Liability policy Includes the following endorsements:1)933-Additional Insured-Automatic Status as required by Contract-Blanket-Who Is an insured Is amended to include as Additional Insured any person or organization when you have agreed In a written contract that such person or organization be added as an additional Insured ort your policy.The endorsement also provides for the coverage to apply on a primary and non-copntributory basis for ongoing and completed operations when required by written contract.2)205-Blanket Waiver of Subrogation when required in a written contract or agreement.3)336- Notice of Cancellation,Nonrenewal or Material Change-30 days blanket as required by written contract. See Attached... CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN CITY OF PEARLAND ACCORDANCE WITH THE POLICY PROVISIONS. ATTN:PURCHASING 3519 LIBERTY DRIVE AUTH RIZED REPRESENTATIVE PEARLAND TX 77581 �,41 I ©1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25(2016/03) The ACORD name and logo are registered marks of ACORD AGENCY CUSTOMER ID: SGADMIN-01 LOC#: 4C Ro ADDITIONAL REMARKS SCHEDULE Page 1 of 1 AGENCY NAMED INSURED Adams Insurance Service,Inc. SpawGlass Construction Corp. 13800 West Road POLICY NUMBER Houston,TX 77041 CARRIER NAIC CODE EFFECTIVE DATE: ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE: CERTIFICATE OF LIABILITY INSURANCE The Workers'Compensation policy Includes the following endorsements:1)WC990304-Waiver of Subrogation-Blanket waiver for any person or organization for whom the named insured has agreed in a written contract to furnish the waiver.2)WC420801-Notice of Cancellation-30 days blanket as required by written contract. The UmbrellalExcess Liability policy applies In excess of the underlying General Liability,Automobile Liability and Employers Liability policies above.The policy follows the terms and conditions of such underlying policies unless they are inconsistent with the terms of the policy. ADDITIONAL CERTIFICATE HOLDER INCLUDES CITY OF PEARLAND • ACORD 101 (2008101) ©2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD 933 ADDITIONAL INSURED -AUTOMATIC STATUS AS REQUIRED BY CONTRACT- BLANKET This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Any person or organization that you are required by written contract to include as an additional insured on this policy if the contract Is executed prior to the loss. A. Who Is an Insured(Section II)Is amended to Include as an insured any person or organization shown in the above SCHEDULE (called additional Insured),but only with respect to liability for"bodily injury","property damage"or"personal and advertising injury" arising out of your premises or your operations for the additional insured,and only to the extent and for the minimum limits required In the written contract. B. The Insurance provided to the additional insured is subject to the following limitations: 1. Unless required by written contract,this insurance does not apply to"bodily injury"or"property damage"occurring atter "your work"for the additional Insured has been completed or after that portion of"your work"out of which the"bodily Injury" or"property damage"arises has been put to its intended use by any person or organization,whichever occurs first. 2. Unless specifically required by written contract,this insurance does not apply to"bodily injury"or"property damage"arising out of the sole negligence,act or omission of the additional insured. 3. This Insurance does not apply to'bodily injury","property damage"or"personal and advertising injury"for which the additional insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement except to the extent that the additional insured would have been obligated to pay such damages in the absence of the contract or agreement. 4. This insurance does not apply to"bodily injury"."property damage"or"personal and advertising injury"arising out of the rendering or failure to render any professional services by any Insured or on any insured's behalf,including: a) The preparing,approving or failing to prepare or approve maps,shop drawings,opinions,reports,surveys,field orders,change orders,drawings or specifications:and b) Supervisory,inspection,architectural or engineering services. This exclusion applies even if the claims against any Insured allege negligence or other wrongdoing in the supervision, hiring,employment,training or monitoring of others by that insured,if the"occurrence"which caused the'bodily injury'or 'property damage",or the offense which caused the"personal and advertising injury",involved the rendering of,or the failure to render,any professional architectural,engineering or surveying services. b. This endorsement shall not apply to a person or organization if any other additional insured endorsement attached to this policy specifically applies to that person or organization. 6. The insurance afforded herein only applies to the extent permitted by applicable state law,including statutes governing additional insured coverage in the construction industry. 7. The insurance afforded to the additional insured shall not exceed the minimum limits required In the written contract. C. in no event shall the insurance provided to the additional insured exceed the scope of coverage,Including minimum limits,required by the contract. If a written contract or agreement requires that additional insured status be provided by the use of specified edition dates of the ISO CG2010 and/or CG2037,then the terms of that endorsement are incorporated Into this endorsement as respects such additional insured and shall supersede the coverage grant and limitations inn Sections A.and B.of this endorsement.in the event that CG2010 and/or CG2037 are required but no edition dates are specified,the 04/13 editions shall apply. D. This Insurance is excess to any other insurance,whether primary,excess,contingent or on any other basis,available to the additional Insured unless a written contract requires that this insurance be primary or primary and non-contributing. However,this insurance is always excess to other insurance,whether primary,excess,contingent or on any other basis,when the additional insured has bean added to the other Insurance as an additional insured. Nothing herein contained shall be held to vary,alter,waive or extend any of the terms,conditions,provisions,agreements or limitations of the mentioned Policy,other than as above stated. This endorsement changes the policy to which it Is attached and is effective on the date Issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective:Same as policy effective date unless otherwise Indicated above.Policy Effective:6/1/2019 Policy No.:GLI9ABC00046 Insured: SpawGlass Contractors,Inc.,SpawGlass Construction Corp.,SpawGlass Civil Endorsement No.: _ Construction, Inc.,Westland Equipment and Supplies,LLC Premium$ Insurance Company: American Contractors insurance Co.RRG 205 r WAIVER OF TRANSFER OF RIGHTS OF RECOVERY This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name of Person(s)or Organizatlon(s): Any person or organization for whom you have agreed by written contract to furnish this waiver. The TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO US Condition(Section IV—COMMERCIAL GENERAL LIABILITY CONDITIONS)Is amended by the addition of the following: We waive any right of recovery we may have against the person or organization shown in the Schedule above because of payments we make for Injury or damage arising out of your ongoing operations or"your work"done under a contract with that person or organization and included in the"products-completed operations hazard". This waiver applies only to the person or organization shown in the Schedule above. Nothing herein contained shall be held to vary,alter,waive or extend any of the terms,conditions,provisions, agreements or limitations of the mentioned Policy, other than as above stated. This endorsement changes the policy to which It Is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is Issued subsequent to preparation of the policy.) Endorsement Effective:Same as policy effective date unless otherwise indicated above. Endorsement No.: Policy Effective Date:6/1/2019 Policy No.: GLI9ABC00046 Premium$ Insured: SpawGlass Contractors,Inc.,SpawGlass Construction Corp., SpawGlass r�l Civil Construction,Inc.,Westland Equipment and Supplies,LLC Insurance Company: American Contractors insurance Co RRG 336 NOTICE OF CANCELLATION, NONRENEWAL OR MATERIAL CHANGE- CERTIFICATE HOLDERS This endorsement modifies insurance provided under the following: • COMMERCIAL GENERAL LIABILITY COVERAGE PART The certificate of insurance holders shown in the schedule below have requested that they receive written notice of cancellation, nonrenewal or material change with respect to this policy. If we decide to cancel, nonrenew or make a material change to this policy,we agree to mail or deliver sixty(60)days advance written notice to the certificate of Insurance holders shown in the schedule below. However, if we are cancelling or nonrenewing due to nonpayment of premium,we will only provide the certificate of insurance holders shown in the schedule below with ten(10)days advance written notice. The notice of cancellation, nonrenewal or material change will be mailed to the addresses provided to us by the certificate of insurance issuer. Proof of mailing will be considered sufficient proof of our good faith attempt to provide notice of cancellation, nonrenewal or material change to the certificate of insurance holders shown In the schedule below. SCHEDULE All certificate of insurance holders where written notice of cancellation, nonrenewal or material change to this policy is required by written contract, permit or agreement with the Named insured. • Nothing herein contained shall be held to vary,alter,waive or extend any of the terms,conditions, provisions, agreements or limitations of the mentioned Policy,other than as above stated. This endorsement changes the policy to which It Is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective:Same as policy effective date unless otherwise indicated above. Endorsement No.: Policy Effective:6/1/2019 Policy No.: GLI9ABC00046 Premium$ Insured: SpawGlass Contractors,Inc.,SpawGlass Construction Corp., SpawGlass Civil Construction,Inc.,Westland Equipment and Supplies,LLC Insurance Company: American Contractors Insurance Co RRG COMMERCIAL AUTO THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. COMMERCIAL AUTO ELITE EXTENSION This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM The BUSINESS AUTO COVERAGE FORM Is amended to include the following clarifications and extensions of coverage.With respect to coverage provided by this endorsement,the provisions of the Coverage Form apply unless modified by the endorsement. A. TEMPORARY SUBSTITUTE AUTO PHYSICAL C. EMPLOYEES AS INSUREDS DAMAGE The following Is added to the Section II—Covered Section I —Covered Autos Paragraph C. Certain Autos Liability Coverage, Paragraph A.1.Who Is Trailers, Mobile Equipment, and Temporary An Insured provision: Substitute Autos is amended by adding the Any"employee"of yours is an"insured"while using following: a covered "auto" you don't own, hire or borrow in If Physical Damage Coverage is provided by this your business or your personal affairs. coverage form for an "auto" you own, the Physical D. EMPLOYEE HIRED AUTOS Damage Coverages provided for that owned "auto" are extended to any "auto" you do not own 1. Changes In Covered Autos Liability while used with the permission of its owner as a Coverage temporary substitute for the covered "auto" you The following is added to the Who Is An own that is out of service because of breakdown, Insured provision: repair,servicing,"loss"or destruction. An "employee" of yours is an "insured" while The coverage provided is the same as the operating an "auto" hired or rented under a coverage provided for the vehicle being replaced. contract or agreement in an "employee's" B. AUTOMATIC ADDITIONAL INSUREDS name, with your permission, while performing The Who Is An Insuredprovision under Covered duties related to the conduct of your business. 2. Changes In General Conditions Autos Liability Coverage is changed to include the following as an"insured": Paragraph S.b. of the Other Insurance 1. Where Required bya Contract or Agreement Condition in the Business Auto Coverage Form Q g Is replaced by the following: the following is added: contained In the For Hired Auto Physical Damage Coverage,the The Who Is An Insured provisionfollowing are deemed to be covered "autos" Business Auto Coverage Form is amended to you own: add the following: a. borrow;y covered "auto" you lease. hire, rent or Any person or organization whom you become obligated to include as an additional Insured under and this policy, as a result of any contract or agreement b. Any covered "auto" hired or rented by your you enter into which requires you to furnish "employee" under a contract in an insurance to that person or organization of the type "employee's" name, with your permission, provided by this policy, but only with respect to while performing duties related to the liability covered by the terms of this policy, arising conduct of your business. out of the use of a covered "auto" you own, hire or However,any"auto"that is leased,hired,rented or borrow and resulting from the acts or omissions by borrowed with a driver is not a covered"auto". you, any of your "employees" or agents. The E. NEWLY FORMED OR ACQUIRED insurance provided herein will not exceed: ORGANIZATIONS (1) The coverage and/or limits of this policy,or Section II — Covered Autos Liability Coverage, (2) The coverage and/or limits required by said Ai.Who Is An Insured is amended by adding the contract or agreement, following: whichever is loss. CA7450(11-17) includes copyrighted material of ISO Properties,Inc.with its permission. Page 1 of 5 Any organization which you acquire or form after I. TOWING the effective date of this policy In which you Section HI — Physical Damage Coverage, A.2. maintain ownership or majority interest, However: Towing is replaced with the following: (1) Coverage under this provision Is afforded only We will pay for towing and labor costs incurred, up to 180 days after you acquire or form the subject to the following: organization, or to the end of the policy period,whichever is earlier. a. Up to $100 each time a covered "auto" of the (2) Any organization you acquire or form will not be private passenger type is disabled;or considered an"insured"if: b. Up to $500 each time a covered "auto° other (a) The organization is a partnership or a joint than the private passenger type is disabled. venture;or However, the labor must be performed at the place (b) That organization is covered under other of disablement. similar insurance. J LOCKSMITH SERVICES (3) Coverage under this provision does not apply Section III — Physical Damage Coverage, A.4. to any claim for "bodily injury" or "property Coverage Extensions is amended by adding the damage" resulting from art "accident" that following: occurred before you formed or acquired the We will pay up to $250 per occurrence for organization. necessary locksmith services for keys locked Inside F. SUBSIDIARIES AS INSUREDS a covered private passenger "auto". The deductible is waived for these services. Section 11 — Covered Autos Liability Coverage, K. TRANSPORTATION EXPENSES A.1.Who Is An insured is amended by adding the following: Section III — Physical Damage Coverage, A.4. Any legally incorporated subsidiary in which you Coverage Extensions Subparagraph a. own more than 50% of the voting stock on the Transportation Expenses is replaced by the effective date of this policy. However, "insured" following: does not include any subsidiary that is an "insured" (1) We will pay up to $75 per day to a maximum of under any other automobile liability policy or was an $2,500 for temporary transportation expense �� "insured" under such a policy but for termination of incurred by you because of the total theft of a that policy or the exhaustion of the policy's limits of covered "auto" of the private passenger type. liability. We will pay only for those covered "autos" for G. SUPPLEMENTARY PAYMENTS which you carry either Comprehensive or Coverage, Specified Cause Of Loss Coverage. We will Section Il — Covered Autos Liability 9 pay for temporary transportation expenses A.2.a. Coverage Extensions, Supplementary Incurred during the period beginning 48 hours Payments (2) and (4) are replaced by the after the theft and ending, regardless of the following: policy's expirations, when the covered "auto"is (2) Up to $5,000 for cost of bail bonds (including returned to use or we pay for its"loss". bonds for related traffic law violations)required (2) If the temporary transportation expenses you because of an "accident" we cover. We do not Incur arise from your rental of an "auto" of the have to furnish these bonds. private passenger type, the most we will pay Is (4) Ail reasonable expenses incurred by the the amount it costs to rent an "auto" of the "insured"at our request, including actual loss of private passenger type which is of the same earnings up to $500 a day because of time off like kind and quality as the stolen covered from work. "auto". H. FELLOW EMPLOYEE COVERAGE L. AUDIO, VISUAL, AND DATA ELECTRONIC in those jurisdictions where, by law, fellow EQUIPMENT COVERAGE ADDED LIMITS employees are not entitled to the protection Audio, Visual, And Data Electronic Equipment afforded to the employer by workers compensation Coverage Added Limits of$5,000 Per"Loss"are in exclusivity rule, or similar protection. The following addition to the sublimit in Paragraph C.1.b. of the provision is added: Limits Of Insurance provision under Section IiI— Subparagraph 5. of Paragraph B. Exclusions in Physical Damage Coverage. Section 11 — Covered Autos Liability Coverage M. HIRED AUTO PHYSICAL DAMAGE does not apply if the "bodily injury" results from the Section Ill — Physical Damage Coverage, A,4. use of a covered"auto"you own or hire. Coverage Extensions is amended by adding the following: CA7450(11-17) includes copyrighted material of ISO Properties,inc.with its permission. Page 2 of 5 if hired "autos" are covered "autos" for Liability O. PERSONAL PROPERTY OF OTHERS ,-- Coverage, and if Comprehensive, Specified Section III — Physical Damage Coverage, A.4. Causes of Loss, or Collision coverage is provided Coverage Extensions is amended by adding the for any "auto" you own, then the Physical Damage following: coverages provided are extended to "autos" you We will pay up to $500 for loss to personal property hire, subject to the following limit and deductible: of others In or on your covered"auto." (1) The most we will pay for loss to any hired This coverage applies only in the event of"loss" to "auto" is the lesser of Actual Cash Value or Cost of Repair, minus the deductible, your covered "auto" caused by fire, lightning, explosion, theft,mischief or vandalism, the covered (2) The deductible will be equal to the largest "auto's"collision with another object, or the covered • deductible applicable to any owned "auto" for "auto's"overturn. that coverage. No deductible applies to "loss" No deductibles apply to this coverage. caused by fire or lightning. (3) Subject to the above limit and deductible P. PERSONAL EFFECTS COVERAGE provisions, we will provide coverage equal to Section Ili — Physical Damage Coverage, A.4. the broadest coverage applicable to any Coverage Extensions is amended by adding the covered "auto"you own. following; We will pay up to$1,000, in addition to the limit We will pay up to $500 for "loss" to your personal above, for loss of use of a hired auto to a effects not otherwise covered in the policy or, if you leasing or rental concern for a monetary loss are an individual, the personal effects of a family sustained, provided it results from an"accident" member,that is in the covered auto at the time of the for which you are legally liable. "loss". However, any"auto"that Is leased, hired, rented or For the purposes of this extension personal effects borrowed with a driver is not a covered 'auto". means tangible property that Is worn or carried by an insured including portable audio, visual. or electronic N. AUTO LOAN OR LEASE COVERAGE devices. Personal effects does not include tools, Section ill — Physical Damage Coverage jewelry, guns, money and securities, or musical Paragraph A.4. Coverage Extensions is amended instruments by the addition of the following: Q. EXTRA EXPENSE FOR STOLEN AUTO in the event of a total "loss" to a covered "auto" - Section III — Physical Damage Coverage, A.4, which is covered under this policy for Coverage Extensions is amended by adding the Comprehensive, Specified Cause of Loss, or following: Collision coverage, we will pay any unpaid amount We will pay up to $1,000 for the expense incurred due, including up to a maximum of $500 for early returning a stolen covered "auto" to you because of termination fees or penalties, on the lease or loan the total theft of such covered "auto". Coverage for a covered"auto", less; applies only to those covered "autos" for which you 1. The amount paid under the Physical Damage carry Comprehensive or Specified Causes Of Loss Coverage Section of the policy;and Coverage. 2. Any: R. RENTAL REIMBURSEMENT a. Overdue lease/loan payments at the time Section, Ill — Physical Damage Coverage, A.4. of the loss"; Coverage Extensions is amended by adding the b. Financial penalties imposed under a lease following: for excessive use, abnormal wear and tear 1. This coverage applies only to a covered"auto"for or high mileage; which Physical Damage Coverage is provided on this policy. c. Security deposits not returned by the 2. We will pay for rental reimbursement expenses lessor; Incurred by you for the rental of an "auto" d. Costs for extended warranties, Credit Life because of"loss" to a covered "auto". Payment insurance, Health, Accident or Disability applies in addition to the otherwise applicable Insurance purchased with the loan or lease; amount of each coverage you have on a covered and "auto".No deductibles apply to this coverage. e. Carry-over balances from previous loans or 3. We will pay only for those expenses incurred leases. during the policy period beginning 24 hours Coverage does not apply to any unpaid amount after the "loss" and ending, regardless of the due on a loan for which the covered"auto"is not policy's expiration, with the lesser of the the sole collateral. following number of days. CA7450(11-17) Includes copyrighted material of ISO Properties,Inc.with Its permission. Page 3 of 5 a. The number of days reasonably required to For the purposes of this coverage extension a new repair or replace the covered "auto". If covered auto is defined as an"auto"of which you are (r� "loss" is caused by theft, this number of the original owner that has not been previously titled days is added to the number of days it which you purchased less than 180 days prior to the takes to locate the covered "auto" and date of loss. return it to you;or U. LOSS TO TWO OR MORE COVERED AUTOS b. 30 days. FROM ONE ACCIDENT 4. Our payment is limited to the lesser of the Section HI — Physical Damage Coverage, D. following amounts: Deductible is amended by adding the following: a. Necessary and actual expenses incurred; If a Comprehensive, Specified Causes of Loss or or Collision Coverage"loss"from one"accident"involves b. $75 per day,subject to a$2,250 limit. two or more covered "autos", only the highest deductible applicable to those coverages will be 5. This coverage does not apply while there are applied to the"accident". spare or reserve "autos" available to you for If the application of the highest deductible is less your operations, favorable or more restrictive to the Insured than the 6. If"loss" results from the total theft of a covered separate deductibles as applied in the standard form, "auto" of the private passenger type, we will the standard deductibles will apply. pay under this coverage only that amount of This provision only applies If you carry your rental reimbursement expenses which is Comprehensive, Collision or Specified Causes of not already provided for under the Physical Loss Coverage for those..vehicles, and does not Damage — Transportation Expense Coverage extend coverage to any covered"autos"for which you Extension included in this endorsement. do not carry such coverage. 7. Coverage provided by this extension is excess V. WAIVER OF DEDUCTIBLE —GLASS REPAIR OR over any other collectible insurance and/or REPLACEMENT endorsement to this policy. Section IIi — Physical Damage Coverage, D. S. AIRBAG COVERAGE Deductible is amended by adding the following: Section ill — Physical Damage Coverage, B.3.a. If a Comprehensive Coverage deductible is shown in Exclusions is amended by adding the following: the Declarations it does not apply to the cost of if you have purchased Comprehensive or Collision repairing or replacing damaged glass. Coverage under this policy, the exclusion relating to W. DUTIES IN THE EVENT OF ACCIDENT, CLAIM, mechanical breakdown does not apply to the SUIT,OR LOSS accidental discharge of an airbag. Section IV — Business Auto Conditions, A.2. T. NEW VEHICLE REPLACEMENT COST Duties In The Event Of Accident, Claim, Suit Or The following is added to Paragraph C. Limit Of Loss Is amended by adding the following: Insurance of Section III — Physical Damage Your obligation to notify us promptly of an"accident", Coverage claim, "suit" or "loss" Is satisfied if you send us the in the event of a total''loss"to your new covered auto required notice as soon as practicable after your of the private passenger type or vehicle having a Insurance Administrator or anyone else designated by gross vehicle weight of 20,000 pounds or less, to you to be responsible for insurance matters is notified, which this coverage applies, we will pay at your or in any manner made aware,of an"accident",claim, option: "suit"or"loss". a. The verifiable new vehicle purchase price you X. WAIVER OF TRANSFER OF RIGHTS OF paid for your damaged vehicle, not including any RECOVERY insurance or warranties. Subparagraph 5. of Paragraph A. Loss Conditions b. The purchase price, as negotiated by us, of a of Section IV — Business Auto Conditions Is new vehicle of the same make, model, and deleted in its entirety and replaced with the following. equipment, or most similar model available, not Transfer Of Rights Of Recovery Against Others including any furnishings, parts,or equipment not To Us installed by the manufacturer or their dealership. If any person or organization to or for whom we c. The market value of your damaged vehicle, not make payment under this Coverage Form has including any furnishings, parts, or equipment not rights to recover damages from another, those installed by the manufacturer or their dealership. rights are transferred to us. That person or We will not pay for initiation or set up costs associated_ organization must do everything necessary to with a loans or leases. secure our rights and must do nothing after "accident"or"loss"to impair them. CA7450(11-17) Includes copyrighted material of ISO Properties,Inc.with its permission. Page 4 of 5 However, we waive any right of recovery we may Z. MENTAL ANGUISH have against any person, or organization with Section V — Definitions, C. is replaced by the 'J1�1 whom you have a written contract, agreement or following: permit executed prior to the "loss" that requires a "Bodily injury' means bodily injury, sickness or waiver of recovery for payments made for damages disease sustained by a person, including mental arising out of your operations done under contract anguish or death resulting from bodily injury, sickness with such person or organization. or disease. Y. UNINTENTIONAL FAILURE TO DISCLOSE AA. LIBERALIZATION EXPOSURES If we revise this endorsement to provide greater Section IV — Business Auto Conditions, B.2. coverage without additional premium charge, we will Concealment, Misrepresentation, Or Fraud Is automatically provide the additional coverage to all amended by adding the following: endorsement holders as of the day the revision is If you unintentionally fail to disclose any exposures effective in your state. existing at the inception date of this policy,we will not deny coverage under this Coverage Form solely because of such failure to disclose. However, this provision does not affect our right to collect additional premium or exercise our right of cancellation or non- renewal. ram, CA7450(11-17) Includes copyrighted material of ISO Properties,Inc.with its permission. Page 5 of 6 • COMMERCIAL INTERLINE THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. NOTICE OF CANCELLATION PROVIDED BY US TO PERSONS) OR ORGANIZATIONS) WITH WHOM YOU HAVE AGREED IN A WRITTEN CONTRACT OR AGREEMENT This policy is subject to the following additional Conditions: • if we cancel this policy by notice to the first Named Insured, for any statutorily permitted reason other than for non- payment of premium, notice of such cancellation will be provided at least thirty (30) days in advance of the cancellation effective date to any person(s) or organizations) with whom you have agreed in a written contract or agreement to provide such person(s) or organization(s)with a notice of cancellation but only if: 4. You have provided the name and address of such person(s)or organization(s)to your authorized agent;and 2. Your authorized agent provides us with that list within three (3) business days from the date we request it from them. If notice is mailed, proof of mailing to the last known mailing address of such person(s) or organization(s) will be sufficient proof of notice. Failure to provide such notice to such person(s) or organization(s) will not amend or extend the date the cancellation becomes effective, nor will it negate cancellation of the policy. Failure to send notice shall impose no liability of any kind upon us, our agents or our representatives. IL7447.6(10-17) includes copyrighted material of ISO Properties,Inc.with its permission. Page 1 of 1 TEXAS WORKERS COMPENSATION AND EMPLOYERS LIABILITY POLICY WC 99 03 04 BEd.04-07) WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT This endorsement applies only to the insurance provided by the policy because Texas is shown in Item 3.A.of the information Page. We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule,but this waiver applies only with respect to bodily injury arising out of the operations described In the Schedule where you are required by a written contract to obtain this waiver. This waiver does not extend to the statutory right of reimbursement from a claimant who recovers any amount under Section 417.002 of the Texas Labor Code. This endorsement shall not operate directly or indirectly to benefit anyone not named in the Schedule. The premium for this endorsement is shown in the Schedule. Schedule 1. ( ) Specific Waiver Name of person organization ( X ) Blanket Waiver Any person or organization for whom the Named Insured has agreed by written contract to furnish this waiver. This waiver does not extend to the statutory right of reimbursement under Section 417.002 of the Texas Labor Code. 2. Operations: CONSTRUCTION AND RELATED CONSTRUCTION RELATED WORK ALL TEXAS OPERATIONS 3. Premium: The premium charge of this endorsement shall be 2 percent of the premium developed on payroll in connection with work performed for the above person(s)or organization(s)arising out of the operations described. 4. Minimum Premium: $0 5. Advance Premium: $0 This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The Information below Is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective: Same as Policy Effective Date unless otherwise Indicated above. Endorsement No. Policy Effective Date: 6/1/2019 Policy No. WCA000008319 Premium$ Insured SpawGlass Contractors,Inc.,SpawGlass Construction Corp.,SpawGlass Civil Construction, Inc.,Westland Equipment and Supplies,LLC Carrier Name/Code: ACIG Insurance Company WC 99 03 04 (Ed.04-07) WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 42 06 01 r' 1 (Ed.01-94) TEXAS NOTICE OF MATERIAL CHANGE ENDORSEMENT This endorsement applies only to the insurance provided by the policy because Texas is shown in Item 3.A.of the Information Page. In the event of cancelation or other material change of the policy,we will mail advance notice to the person or organization named in the Schedule.The number of days advance notice is shown in the Schedule. This endorsement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Schedule 1. Number of days advance notice: 60 days. However,in the case of cancellation or nonrenewal due to nonpayment of premium,only 10 days advance notice will be provided. 2. Notice will be mailed to: All certificate holders where written notice of cancellation,nonrenewal or material change to this policy Is required by written contract,permit or agreement with the Named insured. The notice will be malted to the addresses provided to us by the certificate of insurance issuer. Proof of mailing will be considered sufficient proof of our good faith attempt to provide written notice. This endorsement is only applicable in the state of Texas. This endorsement changes the policy to which It is attached and is effective on the date Issued unless otherwise stated. (The information below is required only when this endorsement Is issued subsequent to preparation of the policy.) Endorsement Effective:Same as Policy Effective Date unless otherwise indicated above. Endorsement No. Policy Effective Date: g/1/2019 Policy No. WCA000008319 Premium$ Insured SpawGiass Contractors,Inc.,SpawGlass Construction Corp.,SpawGlass Civil Construction,Inc.,Westland Equipment and Supplies,LLC Carder Name/Code: ACIG Insurance Company WC 42 06 01 (Ed.01-94) EXHIBIT B PERFORMANCE BOND STATE OF TEXAS § COUNTY OF BRAZORIA § KNOW ALL MEN BY THESE PRESENTS: That of the City of , County of , and State of Texas, as principal, and authorized under the laws of the State of Texas to act as surety on bonds for principals, are held and firmly bound unto City of Pearland as Obligee (Owner), in the penal sum of$ for the payment whereof; the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors, and assigns,jointly and severally, by these presents: WHEREAS, the Principal has entered into a certain written contract with the Owner, effective as of the day of , 20_, (the "Contract") to commence and complete the construction of certain improvements described as follows: SHADOW CREEK LIBRARY City of Pearland, Texas COP PN: FA1805 BID NO.: 0519-40 which Contract, including the Contract Documents as defined therein, is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein. NOW THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said Principal shall faithfully perform said Contract Work and shall in all respects duly and faithfully observe and perform all and singular the covenants, conditions, and agreements in and by said Contract agreed and covenanted by the Principal to be observed and performed, and according to the true intent and meaning of said Contract and Contract Documents, then this obligation shall be void; otherwise to remain in full force and effect; PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Chapter 2253 of the Texas Government Code as amended and all liabilities on this bond shall be determined in accordance with the provisions of said Statute to the same extent as if it were copied at length herein. Surety, for value received, stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract, or to the Work performed thereunder, or the plans, specifications, or drawings accompanying the same, shall in any way affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the Work to be performed thereunder. 12/2007 00610- 1 of 2 IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this instrument this day of , 20_. Principal: Surety: By: By: Title: Title: Address: Address: Telephone: Telephone: Fax: Fax: NOTICE: THE ADDRESS OF THE SURETY COMPANY TO WHICH ANY NOTICE OF CLAIM SHOULD BE SENT MAY BE OBTAINED FROM THE TEXAS DEPARTMENT OF INSURANCE BY CALLING ITS TOLL-FREE TELEPHONE NUMBER; 1-800-252-3439. END OF SECTION 12/2007 00610-2 of 2 EXHIBIT C PAYMENT BOND STATE OF TEXAS § COUNTY OF BRAZORIA § KNOW ALL MEN BY THESE PRESENTS: That of the City of , County of , and State of Texas, as principal, and authorized under the laws of the State of Texas to act as surety on bonds for principals, are held and firmly bound unto City of Pearland as Obligee (Owner), in the penal sum of$ for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors, and assigns,jointly and severally, by these presents: WHEREAS, the Principal has entered into a certain written contract with the Owner, effective as of the day of ., 20_, (the "Contract") to commence and complete the construction of certain improvements described as follows: SHADOW CREEK LIBRARY City of Pearland, Texas COP PN: FA1805 BID NO.: 0519-40 which Contract, including the Contract Documents as defined therein, is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein. NOW THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said Principal shall pay all claimants supplying labor or material to him or a subcontractor in the prosecution of the Work provided for in said Contract, then, this obligation shall be void; otherwise to remain in full force and effect; PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Chapter 2253 of the Texas Government Code as amended and all liabilities on this bond shall be determined in accordance with the provisions of said Statute to the same extent as if it were copied at length herein. Surety, for value received, stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract, or to the Work performed thereunder, or the plans, specifications, or drawings accompanying the same, shall in any way affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the Contract, or to the Work to be performed thereunder. 07/2006 00611 - 1 of 2 IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this instrument this day of , 20_. Principal: Surety: By: By: Title: Title: Address: Address: Telephone: Telephone: Fax: Fax: NOTICE: THE ADDRESS OF THE SURETY COMPANY TO WHICH ANY NOTICE OF CLAIM SHOULD BE SENT MAY BE OBTAINED FROM THE TEXAS DEPARTMENT OF INSURANCE BY CALLING ITS TOLL-FREE TELEPHONE NUMBER; 1-800-252-3439. END OF SECTION 07/2006 00611 -2 of 2