R2022-055 2022-03-07RESOLUTION NO. R2022-55
A Resolution of the City Council of the City of Pearland, Texas, awarding a
Construction Manager at Risk contract (Public Safety Training and Education
Building; and Public Safety Building Renovation Project) to Durotech in the
amount of $11,726.00 for pre-construction services, $237,055.00 for General
Conditions and authorizing the payment of 5.05% 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 Durotech in the amount of $11,726.00.00 for pre-construction services, $237,055.00 for General
Conditions and authorizing the payment of 5.05% 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 Public Safety Training and Education Building; and
Public Safety Building Renovation Project.
PASSED, APPROVED and ADOPTED this the 7th day of March, A.D., 2022.
_____________________________
J.KEVIN COLE
MAYOR
ATTEST:
_____________________________
LESLIE CRITTENDEN
INTERIM CITY SECRETARY
APPROVED AS TO FORM:
________________________________
DARRIN M. COKER
CITY ATTORNEY
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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 Durotech, Inc. a Texas corporation (the “Construction
Manager” or Contractor”) for the construction of City of Pearland, Public Safety Training and
Education Building & Public Safely Building Renovations.
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
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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.
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
time extension is warranted due to delays beyond the control of the Contractor and
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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, al l
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 modifi er 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 City or by separate contractors.
1.2.1.17 ProTrak As used herein describes the City’s project management
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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.
1.3 Contract Documents
1.3.1 The Contract Documents and their priority shall be as follows:
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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
acceptance or approval of Work.
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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.
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1.5 Contractor
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.
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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 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 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.
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, using
qualified, careful and efficient workers and in conformity with the provisions of this Contract and
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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 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
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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
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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 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
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advance of the needed date to allow reasonable time for selections).
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, shall be related to the entire Project (if more than
one Contract is involved in the Project), and shall provide for expeditious and practicable
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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
completion of the Work.
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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.
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
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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.
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
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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 ¼ 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 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
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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 par ticular 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 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:
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(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.
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
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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 authorit y 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
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)
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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 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
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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 o therwise
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.
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
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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
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
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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
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.
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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 issue d
before commencement of the substitute 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
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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.
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
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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, 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
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1.8.3.1 If a dispute arises among the Contractor, separate contractors and the
City as to the responsibility under their respective contr acts 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 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
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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
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
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(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 Construct ion
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
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
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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 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
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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 t he
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 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 t he
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
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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. I N 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 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
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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
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
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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 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
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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.
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;
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(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 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
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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 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
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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, 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. S u c h 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.
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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;
(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.
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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.
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
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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 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,
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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 Par agraph 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 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 Hazar dous 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”
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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 “Environmenta l
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
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.
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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 share s 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 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,
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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
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
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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;
(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
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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 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.
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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, agreem ents 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 & Public Works
Contractor: Durotech, Inc.
11931 Wickchester, Ste. 205
Houston, TX 77043
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.
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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
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
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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
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 bonds.
(g) fails to provide all required policies of insurance and/or
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:
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(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 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
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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 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,
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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 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.
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2.1.4.1.2 INTENTIONALLY LEFT BLANK
2.1.4.1.3 INTENTIONALLY LEFT BLANK
2.1.4.1.4 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 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.
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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 (3%) 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
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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.
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
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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 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.
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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
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
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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 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.
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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, Public Safety Training and Education Building: $ 10,226
Pre-Construction Fee, Public Safety Renovations: $ 1,500
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.
4.2.3 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.
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SECTION 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES
The City shall compensate the Construction Manager for Construction Phase services as follows:
General Conditions, Public Safety Training and Education Building: $ 237,055
General Conditions, Public Safety Renovations: $ 0.00
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) Public Safety Training
and Education Building: 5.05%
Construction Manager At Risk Fee (as a Percentage) Public Safety
Renovations: 5.05%
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 used in
Paragraph 1.9.3.6, General Conditions shall have the meanings assigned to them in the
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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
6.1.1 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.
6.1.1.1.2 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.
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6.1.1.1.4 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 $ 124.00 per hour
2 Project Manager $ 71.00 per hour
3 Estimator $ 97.00 per hour
4 Safety/Field Operation
Manager
$ 110.00 per hour
5 Lead Superintendent $ 57.00 per hour
6 Assistant Superintendent $ 49.00 per hour
7 Project Engineer $ 44.00 per hour
8 Quality Control Inspector $ 80.00 per hour
9 Contract Administrator $ 61.00 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.
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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.
(f)
6.1.1.1.10 Miscellaneous Costs
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(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 Par agraph 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.
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(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.
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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 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:
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(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 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
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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.
(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.
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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 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.
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.
SECTION 8 MISCELLANEOUS PROVISIONS
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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 par ty shall nevertheless remain
legally responsible for all obligations under the Contract.
SECTION 9 TERMINATION OR SUSPENSION
9.1 Termination 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
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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
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.
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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 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 OOwner’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
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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
5 House Bill 89 Verification
6 Form 1295 Certificate of Interested Parties
List of Exhibits
A Contractor’s Insurance Certificates
B Performance Bond
C Payment Bond
D Maintenance Bond
E Billing Rate Schedule
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Di|rotech, Inc.Printed Name: David RoweTitle: CEODate: February 22, 2022APPROVED:d£MALZ_Notary Carol L. WellsDate:. February 22. 2022CITY OF PEARLANDBy:.City ManagerDate:APPROVED:City SecretaryDate:.'^^ CAROL L. WELLSH^TH My Notary ID #128952025^^/ 'ExpiresAprit 11,202475DocuSign Envelope ID: 03E609EF-3A1E-49C1-A6B0-7CDFE08909185/12/2022 | 11:30 AM CDT5/12/2022 | 11:46 AM CDT
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CITY OF PEARLANDSTANDARD FORM OF AGREEMENTAPPENDIX BHouse Bill 89 VerificationI, _David Rowe _ (Person name), the undersignedrepresentative (hereafter referred to as "Representative") of Durotech. Inc.(company orbusiness name, hereafter referred to as "Business Entity"), being an adult over the ageof eighteen (18) years of age, after being duly sworn by the undersigned notary, do herebydepose and affirm the following:1. That Representative is authorized to execute this verification on behalf of BusinessEntity;2. That Business Entity does not boycott Israel and will not boycott Israel during theterm of any contract that will be entered into between Business Entity and the City ofPearland; and3. That Representative understands that the term "boycott Israel" is defined by TexasGovernment Code Section 2270.001 to mean refusing to deal with, terminating businessactivities with, or otherwise taking any action that is intended to penalize, inflict economicharm on, or limit commercial relations specifically with Israel, or with a person or entitydoing business in Israel or in an Israeli-controlled territory, but does not include an actionmade for ordinary business purposes.GNATURE OF REPRESENTATIVESUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority, on this22nd day of February _, 20 22.OAC^ ^, \\)J(WNotary Public carol L. WellsCAROL L WELLS^&\ CAROL L.1(-^fe^ My Notary ID #128952025%%^; 'ExplresApril 11.2024DocuSign Envelope ID: 03E609EF-3A1E-49C1-A6B0-7CDFE0890918
JOINER
ARCHITECTS
700 Rockmeed, Ste 265 I Kingwood,7X 77339 I 281 359 8401
2600 S.Show Blvd,Ste 300 I 1eaOee G;V1y,TX 7_/.5/3 1281,245.3304
February 16,2022
Mr. Robert Upton, P.E.
Director of Engineering&Capital Projects
City of Pearland
3519 Liberty Dr.
Pearland,TX 77581
Re: City of Pearland Public Safety Training& Education Building and PSB Renovations
Construction Manager at Risk
Joiner Architects Project Numbers:21006&21012
Dear Mr. Upton,
On Thursday, December 16, 2021, Construction Manager at Risk proposals were received by the City of
Pearland for the Public Safety Training & Education Building and the PSB Renovation projects. Four (4)
offerors submitted proposals as requested.
A Selection Committee made up of members of the City of Pearland Engineering and Capital Projects
Department,the Police Department,the Finance Department,and Joiner Architects evaluated the
proposals and ultimately ranked them on February 10, 2022, based on the selection criteria published in
the Request for Proposals issued by the City.Once all scores were tabulated,there were two(2)offerors
that were ranked to be the most qualified and would provide the best value to the City of Pearland. The
Selection Committee interviewed the key team members of Axis Construction and Durotech on January 14,
2022. After the conclusion of the interviews,the Committee unanimously agreed that Durotech proved to
be the most qualified Construction Manager at Risk for the Public Safety Training& Education Building and
the PSB Renovation projects
Joiner Architects recommends to the City of Pearland City Council,the acceptance of the Selection
Committee's recommendation to choose Durotech as the Construction Manager at Risk for the above-
mentioned projects.
We would like to express our sincere thanks to you,the City Council, Mayor Kevin Cole,and the City of
Pearland administrative staff for allowing us the exciting opportunity to be part of this important project.
We look forward to a successful partnership between the City and Durotech on the Public Safety Training&
Education Building and the PSB Renovation projects
Sincerely,
Joby Copley,AIA
Partner
JMC:ss