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R-03-06-19-3A - 6/19/2003RESOLUTION NO. R- 03- 06 -19 -3A WHEREAS, Texas Local Government Code, § 271.113(a) allows governmental entities to use certain methods other than competitive bidding in entering into contracts for construction of facilities, and WHEREAS, pursuant to Texas Local Government Code, § 271.114(a) the City Council adopted Resolution No. R- 03- 03- 27 -9D1 whereby the Council determined that "Construction Manager -at- Risk" is the delivery method which provides the best value for the City for the construction of the Old Settlers Park at Palm Valley Soccer Restroom /Concession /Storage Facility (the "Project "), and WHEREAS,pursuant to Texas Local Government Code, § 271.118, the City has duly prepared a request for proposals for the selection of a construction manager -at -risk and the Council has selected Brath, Inc. as the offeror that submitted the proposal that offers the best value to the City for the construction of the Project, and WHEREAS, City staff has negotiated a satisfactory Standard Form of Agreement Between Owner and Construction Manager (the "Contract ") with Brath, Inc. which is attached hereto as Exhibit "A ", and WHEREAS, the Council wishes to approve said Contract, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS, 'PFOaktopc:OOMA4VORLOOX - ,DOXRESOUrrvrtaori9A.WPD/ The Mayor is hereby authorized and directed to execute on behalf of the City, subject to the City Manager's and City Attorney's approval of the final language and terms, a Standard Form of Agreement Between Owner and Construction Manager with Brath, Inc. for the construction of the Old Settlers Park at Palm Valley Soccer Restroom /Concession /Storage Facility, a copy of same being attached hereto as Exhibit "A" and incorporated herein for all purposes. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551, Texas Government Code, as amended. RESOLVED this 19 day of June, 2003. CHRISTINE R. MARTINEZ, City Secret 2 , Ma .r Cit of Round Rock, Texas AGREEMENT made as of the day of (/n words, indicate day, month and year) BETWEEN the Owner: (Name and address) City of Round Rock 221 East Main Street Round Rock. Texas 78664 and the Construction Manager. (Name and address) Broth. Inc. 600 IH 35 South Round Rock. Texas 78681 The Project is: (Name, address and brief description) The Architect is (N and address) Moman Architects 309 West Main Street. Suite 120 Round Rock Texas 78664 AIA Document A721 /CMc and A GC Document 565 Standard Form of Agreement Between Owner and Construction Manager where the Construction Manager is also THE CONSTRUCTOR 1991 Edition- Electronic Format THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES: CONSULTATION WITH AN ATTORNEY IS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION. AUTHENTICATION OF THIS ELECTRONICALLY DRAFTED AIA DOCUMENT MAY BE MADE BY USING AIA DOCUMENT D401. The 1987 Edition of AIA Document A201, General Conditions of the Contract for Construction, is referred to herein. This Agreement requires modification if other general conditions are utilized. Portions of this document are derived from AIA Document A111, Standard Form of Agreement Between the Owner and Contractor where the Basis of Payment is the Cost of the Work Plus a Fee, copyright 1920, 1925, 1951, 1958, 1961, 1963, 1967, 1974, 1978, 6 1987 by The American Instirure of Architects; other portions are derived from AGC Document 500. Copyright 1980 by The Associated General Contractors of American. Material in this document differing from that found to AIA Document A111 and AGC Document 500 is copyrighted 1991 by The American Institute of Architects and The Associated General Contractors of America. Reproduction of the material herein or substantial quotation of its provisions without written permission of AIA and AGC violates the copyright laws of the United States and will subject the violator to IeRal prosecution. in the year of 2003. Construction of new restroom/concession/storage facilities located at Old Settlers Park at Palm Valley: Droiect variously referred to as "City of Round Rock Soccer Field Facilities" or as "City of Round Rock Soccer Restroom and Other Facilities at Old Settlers Park at Palm Valley ": project to be new construction of a concession/storage and toilet facility with approximately 1.600 square feet. 6 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21 /CMC AND AGC DOCUMENT 565 - OWNER - CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - 6 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below expiration as noted below. User Document: version 2a12lcmc.aia -- 6/13/2003. AIA License Number 1009596, which expires on 5/29/2004. EXHIBIT Electronic Format Al2VCMc -1991 "An ARTICLE 1 1.1 1.2 ARTICLE 2 2.1 2.2 2.3 2.4 2.5 ARTICLE 7 7.1 7.2 ARTICLE 9 9.1 9.2 9.3 GENERAL PROVISIONS Relationship of Parties General Conditions TABLE OF CONTENTS CONSTRUCTION MANAGER'S RESPONSIBILITIES Preconstruction Phase Guaranteed Maximum Price Proposal; and Contract Time Construction Phase Professional Services Unsafe Materials ARTICLE 3 OWNER'S RESPONSIBILITIES 3.1 Information and Services 3.2 Owner's Designated Representative 33 Architect 3.4 Legal Requirements ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES 4.1 Compensation 4.2 Payments ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES 5.1 Compensation 5.2 Guaranteed Maximum Price 5.3 Changes in the Work ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE 6.1 Cost of the Work 6.2 Deleted 6.3 Discounts, Rebates and Refunds 6.4 Accounting Records CONSTRUCTION PHASE Progress Payments Final Payment ARTICLE 8 INSURANCE AND BONDS 8.1 -8.9 By Addendum 8.10 Performance Bond and Payment Bond MISCELLANEOUS PROVISIONS Dispute Resolution for the Preconstruction Phase Dispute Resolution for the Construction Phase Other Provisions ARTICLE 10 TERMINATION OR SUSPENSION 10.1 Termination Prior to Establishing Guaranteed Maximum Price 10.2 Termination Subsequent to Establishing Guaranteed Maximum Price 10.3 Suspension ARTICLE 11 OTHER CONDITIONS AND SERVICES 11.1 One Guaranteed Maximum Price 11.2 Punch List 11.3 Limitation on Construction Manager's Responsibility to Repair /Replace 11.4 Liquidated Damages 11.5 Warranties Attachments: AMENDMENT NO. 1 to Agreement Between Owner and Construction Manager ADDENDUM NO. 1 to Standard Form of Agreement and Addendum to General Conditions GENERAL CONDITIONS Standard Form of Agreement Between Owner and Construction Manager Where the Construction Manager is also the Constructor ARTICLE 1 GENERAL PROVISIONS 1.1 RELATIONSHIP OF PARTIES The Construction Manager accepts the relationship of trust and confidence established with the Owner by this Agreement, and covenants with the Owner to furnish the Construction Managers reasonable skill and judgment and to cooperate with the Architect in furthering the interests of the Owner. 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 Owner. The Owner shall endeavor to promote harmony and cooperation among the Owner, Architect, Construction Manager and other persons or entities employed by the Owner for the Project. 1.2 GENERAL CONDITIONS Fer - the - Constriction - Phase -the -General -Conditions of the Contract -shall -be -the 4987 - Edition -of -AIA Cenral - enditiens-ef -he ,Which -is- incorporated - herein -by reference- -For -the - Preconstruction Phase, -OE -in 4he -event -that 4he - Preeenstrrudtien and Construction - Phases - proceed eon €u -m tly, -AIA Document A2o1 -shall - apply -to -the - Reconstruction - Phase -only -as specifically - provided .• .• .... ^ as-used -in -AIA -Document - Aaet-shall- mean -the Construction - ManageF 1.2.1 All references in this Agreement to "AIA 201 Standard General Conditions to the Contract" shall mean the City of Round Rock's General Conditions. which are attached hereto and made a Dart hereof. 1.2.2 The term "Contractor" as used in any AIA document shall mean the Construction Manager. ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES The Construction Manager shall perform the services described in this Article. The services to be provided under Paragraphs 2.1 and 2.2 constitute the Preconstruction Phase services. If the Owner and Construction Manager agree, after consultation with the Architect, the Construction Phase may commence before the Preconstruction Phase is completed, in which case bosh phases shall proceed concurrently. 2.1 PRECONSTRUCTION PHASE 2.1.1 PRELIMINARY EVALUATION The Construction Manager shall provide a preliminary evaluation of the Owners program and Project budget requirements, each in terms of the other. 2.1.2 CONSULTATION The Construction Manager with the Architect shall jointly schedule and attend regular meetings with the Owner and Architect The Construction Manager shall consult with the Owner 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 Subparagraph 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 Owner's approval. The - construction - Manager -shall -obtain -the Architect's approval of - the -portion—of -preliminary $reject -schedule . relating -to -the performance -of the Architects services. The Construction Manager shall coordinate and integrate the preliminary Project schedule with the services and activities of the Owner, 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, Owners occupancy requirements showing portions of the Project having occupancy priority, and proposed date of Substantial Completion. If Project - schedule - updates - indicate - that - previously -approved schedules - may -net -be -meh -the Construction - Manager -shall tnake appropriate emmendations -e -the -Owner -and Architect. 2:1,4 PHASED CONSTRUCTION ® 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21/CMC AND AGC DOCUMENT 565 • OWNER - CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - 0 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N -W-, WASHINGTON, D.C., 20006-5209. WARNING: Unlicensed photocopying violates U3. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below- expiration as noted below. User Document: version 2a121cmc.aia — 6/13/2001 AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21/CMc •1991 Owner -and Architect - regarding the phased -issuance -of -and nd Specifications -te fayiliit _ te-phased - Een st r uc#ien. ef-ihe W rk, if such phased-eenstmetien- isapprapeiate -:orb Project, -taking -into -consideration -such -Meters -as economies time -ef-performance, -availability -of Iab.,r -and materials, and 2.1.5 PRELIMINARY COST ESTIMATES 2.1.5.1 When the Owner 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 Owner, a preliminary cost estimate utilizing area, volume or similar conceptual estimating techniques. 2.1.5.2 When Schematic Design Documents have been prepared by the Architect and approved by the Owner, the Construction Manager shall prepare for the review of the Architect and approval of the Owner, a more detailed estimate with supporting data. During the preparation of the Design Development Documents, the Construction Manager shall update and refute this estimate at appropriate intervals agreed to by the Owner, Architect and Construction Manager. 2.1.54 When - Design -Development - Documents -have -been men- M an -Architect gcrshall- prepare -a -detailed -estimate -with Owner: During -the - preparation of -the -Construction Manager-shall- update-and refine this -estimate-at-appropriate-intervals agrecdtoky-the .Owner, 2.1.5.4 If any estimate submitted to the Owner exceeds previously approved estimates or the Owners budget, the Construction Manager shall make appropriate recommendations to the Owner and Architect. 2.1.6 SUBCONTRACTORS AND SUPPLIERS The Construction Manager shall seek to develop subcontractor interest m the Project and shall furnish to the Owner 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 Owner know of any objection to such subcontractor or supplier. The receipt of such list shall not require the Owner or Architect to investigate the qualifications of proposed subcontractors or suppliers, nor shall it waive the right of the Owner or Architect later to object to or reject any proposed subcontractor or supplier. 2.1.6.1 Subcontractors and suppliers shall be selected in accordance with paragraphs 2.3.2.1. 2.3.2.2, and 2.3.2.3 herein. 2.1.7 LONG -LEAD TIME ITEMS The Construction Manager shall recommend to the Owner and Architect a schedule for procurement of long -lead time items which will constitute part of the Work as required to meet the Project schedule. If such long -lead time items are procured by the Owner, they shall be procured on terms and conditions acceptable to the Construction Manager. Upon the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal, all contracts for such items shall be assigned by the Owner 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. 2.1.8 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 Owner and the Owner'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 Owner in writing. 2.1.9 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. 2.2 GUARANTEED MAXIMUM PRICE PROPOSALi AND CONTRACT TIME Contract Time/Completion Dates: Contract Time is a crucial element of the Project: therefore. Completion Dates are not subject to change. Substantial Completion Date: The Substantial Completion Date for the Project is September 7. 2003. Priority: This provision shall have priority over any other provision to the contrary in this Agreement the General Conditions, or any associated document. 2.2.1 When the Drawings and Specifications are sufficiently complete, the Construction Manager shall propose a Guaranteed Maximum Price, which shall be the sum of the ® 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5252. AIA DOCUMENT AIAl21 /CMC AND AGC DOCUMENT 565 - OWNER -CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - ® 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a12kmc.aia — 6/17/2003. AIA License Number 1009596, which expires on 5/29 /2004. Electronic Format Al21/CMc -1991 estimated Cost of the Work and the Construction Manager's Fee. 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 include the Construction Manager's contingency, a sum established by the Construction Manager for the Construction Manager's exclusive use to cover costs arising under Subparagraph 2.2.2 and other costs which are properly reimbursable as Cost of the Work but not the basis for a Change Order. 2.2.4 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: .1 A list of the Drawings and Specifications, including all addenda thereto and the Conditions of the Contract, which were used in preparation of the Guaranteed Maximum Price proposal. .2 A list of allowances and a statement of their basis. .3 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. .4 The proposed Guaranteed Maximum Price, including a statement of the estimated cost organized by trade categories, allowances, contingency, and other items and the fee that comprise the Guaranteed Maximum Price. .5 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 2.2.5 The Construction Manager shall meet with the Owner and Architect to review the Guaranteed Maximum Price proposal and the written statement of its basis. In the event that the Owner or Architect discovers any inconsistencies or inaccuracies in the information presented, they shall promptly notify the Construction Manager, who shall make appropriate adjustments to the Guaranteed Maximum Price proposal, its basis or both. 2.2.6 Unless the Owner 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. 2.2.7 Prior to the Owner'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 except as the Owner may specifically authorize in writing. 2.2.8 Upon acceptance by the Owner of the Guaranteed Maximum Price proposal, the Guaranteed Maximum Price and its basis shall be set forth in Amendment No.t. The Guaranteed Maximum Price shall be subject to additions and deductions by a change in the Work as provided in the Contrail Documents and - the -date -ef - Substantial -Completion -shall -be -subject -1e 2.2.9 The Owner 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. t. Such revised Drawings and Specifications shall be furnished to the Construction Manager in accordance with schedules agreed to by the Owner, Architect and Construction Manager. The Construction Manager shall promptly notify the Architect and Owner if such revised Drawings and Specifications are inconsistent with the agreed - upon assumptions and clarifications. 2.2.10 The Guaranteed Maximum Price shall include in the Cost of the Work only those taxes which are enacted at the time the Guaranteed Maximum Price is established. 2.3 CONSTRUCTION PHASE 2.3.1 GENERAL 2.3.1.1 The Construction Phase shall commence on the earlier of (1) the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a Notice to Proceed, or (2) the Owner's first authorization to the Construction Manager to: (a) award a subcontract, or (b) undertake construction Work with the Construction Manager's own forces, or (c) issue a purchase order for materials or equipment required for the Work. 2.3.2 ADMINISTRATION ® 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21/CMC AND AGC DOCUMENT 565 - OWNER - CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - 0 199) - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document version 2a121cmc.aia — 6/13/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21 /CMc -1991 2.3.2.1 Those - portions of -the -Werk -that -the - Construction Manager -dees -net tustexrarily- perform -with thee - Construction Manager% -ewe -personnel -shall -be performed under subcontracts -Of -by der appropriate - agreements with the bid -feeffl _ Subcontractora -and- em -suppliers -of materials-er list -previously -reviewed and,- after ana1yag such -bids -shall deliver such bidste- he -Oweer and -a Q-Ar ' : -e•.-The-Owner-shall- then determine -the advice -ef a ri d .. to th rc et _ on_u„ tie bids -will -be accepted: -The -Owner -may -designate - speeifis Construction -Manager -shall- not- be-required -te contract -with anyone to -whom -the Construction 4.4anager - has - reason able objection. 2.3.2.1 The Construction Manager shall publicly advertise (in accordance with Texas Local Government Code Section 271.025) and solicit either competitive bids or competitive sealed proposals from trade contractors and /or subcontractors for the performance of all elements of the Work. other than minor work that may be included in the General Conditions all in accordance with Texas Local Govemment Code Section 271.118(hL The Construction Manager may seek to perform portions of the Work in the same manner as all other trade contractors and /or subcontractors. The Construction Manager and the Owner or its representative shall receive and open all bids and proposals in a manner that does not disclose the contents during the selection process. All bids and proposals shall be made public after the award of the contract or not later than seven (7) days after final selection, whichever date is later. all in accordance with Texas Local Government Section 271.118(1). 2.3.2.2 If -the -Guaranteed - Maximum -Price -has -been established anda-spec-i -bidderamong- these- whese-bidsare- delivered -by -the -Construction - Manager 4o -the -Owner and Architect {r) -is - recommended 4e -the -Owner -by -the -qual Pied- te- perfern -that- portion of -he- sl 43) -has -submitted a -bid -which aenforms-te the requirements-ef-the Contract - Documents out- reservation Of exceptions, -but the -Owner - requires -that -another kid lee accepted, -then the Constnrction -Manager - may-require- hata change:_ tom. heW FWe_t iswedioadjustthc Contract- +meand the -Guaranteed- Maximum- I-riEe-bylhe4kffereuee- between -the- bida€-t-he- person or-entity-rerommended-Ie--he-Owner-hythe- Genstractien -Manager -f - the-subeentract -er- ether -agreement actually -signed -with -the -person -er entity 2.3.2.2 If the Construction Manager reviews. evaluates. and recommends to the Owner a bid or proposal but the Owner requires that another bid or proposal be accepted, the Owner shall issue a change order for a change in price or GMP for additional cost or risk that the Construction Manager may incur as a result of the Owner's requirement that another bid or proposal be accepted. all in accordance with Texas Local Government Code. Section 271.118(1). 2.3.2.3 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated to a special design shall conform to the payment provisions of Subparagraphs 7.1.8 and 7.1.9 and shall not be awarded on the basis of cost plus a fee without the prior consent of the Owner. 2.3.2.4 The Construction Manager shall schedule and conduct meetings at which the Owner, Architect, Construction Manager and appropriate Subcontractors can discuss the status of the Work. The Construction Manager shall prepare and promptly distribute meeting minutes. 2.3.2.5 Promptly after the Owner's acceptance of the Guaranteed Maximum Price proposal, the Construction Manager shall prepare a schedule in accordance with Paragraph se-ef AIA Document A2or, including the Owner's occupancy requirements. 2.3.2.6 The Construction Manager shall provide monthly written reports to the Owner 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 Owner may reasonably require. The log shall be available to the Owner and Architect. 2.3.2.7 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 Owner and Architect at regular intervals. 2.4 PROFESSIONAL SERVICES The Construction Manager 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 Construction Manager has specifically agreed in writing to provide such services. In such event, the Construction Manager shall cause such services to be performed by appropriately licensed professionals. 2.5 UNSAFE MATERIALS In addition to the provisions of Paragraph 4n AIA Document Azoi, if reasonable precautions will be inadequate to o 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21 /CMC AND AGC DOCUMENT 565 - OWNER - CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - ® 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia — 6/13/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21 /CMc -1991 prevent foreseeable bodily injury or death to persons resulting from a material or substance encountered but not created on the site by the Construction Manager, the Construction Manager shall, upon recognizing the condition, immediately stop Work in the affected area and report the condition to the Owner and Architect in writing. The Owner, Construction Manager and Architect shall then proceed in the same manner described in Subparagraph- tet2 -4 AIA Document A2ot. The Owner shall be responsible for obtaining the services of a licensed laboratory to verify the presence or absence of the material or substance reported by the Construction Manager and, in the event such material or substance is found to be present, to verify that it has been rendered harmless. Unless otherwise required by the Contrail Documents, the Owner shall furnish in writing to the Construction Manager and Architect the names and qualifications of persons or entities who are to perfonn tests verifying the presence or absence of such material or substance or who are to perform the task of removal or safe containment of such material or substance. The Construction Manager and Architect will promptly reply to the Owner in writing stating whether or not either has reasonable objection to the persons or entities proposed by the Owner. If either the Construction Manager or Architect has an objection to a person or entity proposed by the Owner, the Owner shall propose another to whom the Construction Manager and Architect have no reasonable objection. ARTICLE 3 OWNER'S RESPONSIBILITIES 3.1 INFORMATION AND SERVICES 3.1.1 The Owner shall provide full information in a timely manner regarding the requirements of the Project, including a program which sets forth the Owner's objectives, constraints and criteria, including space requirements and relationships, flexibility and expandability requirements, special equipment and systems, and site requirements. 3 zi--c•' The Owner; upon -mitten -Fequest -from -the Contraction - Manager -shall - furnish -evidence -of - Project time he -time - thereafter -as -the - Construction - Manager .*nay request - Furnishing -of such -evidence Mall -be -a -condition 3.1.3 The Owner 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 Owner. 3.1.4 STRUCTURAL AND ENVIRONMENTAL TESTS, SURVEYS AND REPORTS In the Preconstruction Phase, the Owner shall furnish the following with reasonable promptness and at the Owner's expense, and the Construction Manager shall be entitled to rely upon the accuracy of any such information, reports, surveys, drawings and tests described in Clauses 3.1.4.1 through 3.1.44 except to the extent that the Construction Manager knows of any inaccuracy: 3.1.4.1 Reports, surveys, drawings and tests concerning the conditions of the site which are required by law. 3.1.4.2 Surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; adjacent drainage; rights -of -way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data pertaining to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All information on the survey shall be referenced to a project benchmark. 3.1.4.3 The services of geotechnical engineers when such services are requested by the Construction Manager. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and resistivity tests, including necessary operations for anticipating subsoil conditions, with reports and appropriate professional recommendations. 3.1.4.4 Structural, mechanical, chemical, air and water pollution tests, tests for hazardous materials, and other laboratory and environmental tests, inspections and reports which are required by law. 3.1.4.5 The services of other consultants when such services are reasonably required by the scope of the Project and are requested by the Construction Manager. 3.2 OWNER'S DESIGNATED REPRESENTATIVE The Owner shall designate in writing a representative who-shall- haw ..cpress- authority 4o-bind-the-Owner -with respect-toall- matters- requiring-the Owner's- appreval -o autherizatien. This - representative -sh all -have -the authority -to -make -decisions -art - behalf -of - the -Owner concerning -estimates and schedules construekion - budgets and -changes -in -the -Work, and -shall render suer -decisions - promptly and - furnish - information expeditiously; se- as- toaveid-unreasenable-delayin the ewiee° or-Work-of-the-Construction-Manager. in accordance with the City of Round Rock's General Conditions. 3.3 ARCHITECT The Owner shall retain an Architect to provide the Basic Services, including normal structural, mechanical and electrical engineering services, other than cost estimating services, described in the edition of AIA Document B141 current as of the date of this Agreement. and as modified by the Owner. The ® 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21/CMC AND AGC DOCUMENT 565 - OWNER -CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA - AGC - 0 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document version 2a121cmc.aia — 6/132003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21 /CMc -1991 Owner shall authorize and cause the Architect to provide those Additional Services described in AIA Document B141 requested by the Construction Manager which must necessarily be provided by the Architect for the Preconstruction and Construction Phases of the Work. Such services shall be provided in accordance with time schedules agreed to by the Owner, Architect and Construction Manager. Upon request of the Construction Manager, the Owner shall furnish to the Construction Manager a copy of the Owner's Agreement with the Architect, from which compensation provisions may be deleted. 3.4 LEGAL REQUIREMENTS The Owner shall determine and advise the Architect and Construction Manager of any special legal requirements relating specifically to the Project which differ from those generally applicable to construction in the jurisdiction of the Project. The Owner shall furnish such legal services as are necessary to provide the information and services required under Paragraph 3.1. ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES The Owner shall compensate and make payments to the Construction Manager for Preconstruction Phase services as follows: 4.1 COMPENSATION 4.1.1 For the services described in Paragraphs 2.1 and 2.2 the Construction Manager's compensation shall be calculated as follows: (State basis of compensation, whether stipulated sum, multiple ofD"rert Personnel Expense, actual cost, etc. Include a statement of reimbursable castitemsas applicable.) The basis of compensation for Preconstruction Phase Services is the sum of $5.000.00. which is included in the Guaranteed Maximum Price. 4-14 Compensa tier- fm- Pmeonslruction Phaso mP4ms- shall- betqaitably- adjtuted -if auer vi es a r•� ' M from tho-date -e& 413 Ifcompensation -is- based -en ... . -de€rned tke- direct- salaries- ef-the Constmetion- Manager 's -personnel -engaged in -the Pro,..ct -and -the - pertion -of -the cast- of-their- mandatory -ands contributions and -benefits -related - dreretaaaeh-as -employment taxesand-olheratatutefy- employee -benefits -sick - leave; 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) days from the date the Construction Manager's invoice is received by the Owner. Amounts unpaid after the date on which payment is due shall bear interest at the rate entered below, or in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located. (Insert rate of interest agreed upon.) One percent (1 %) per month. (Usury laws and requirements under the Federal Truth in Lending ing Act..similar state and kcal consumer credit laws and other regulations at the Owner's and Construction Manager's principal places of business, the kration of the Project and elsewhere may affect the validity alibis provision. legal advice should he obtabanf with respect to deletions or modifications, and also regarding requirements such as wntten disclosures or waivers) The Owner shall compensate the Construction Manager for Construction Phase services as follows: 5.1 COMPENSATION ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES 5.1.1 For the Construction Manager's performance of the Work as described m Paragraph 2.j, the Owner shall pay the Construction Manager in current funds the Contract Sum consisting of the Cost of the Work as defined in Article 7 and the Construction Manager's Fee determined as follows: ® 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21/CMC AND AGC DOCUMENT 565 - OWNER -CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - ® 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia — 6/13/2003. AIA License Number 1009596, which expires on 5/29 /2004. Electronic Format Al21 /CMc -1991 (State a lumpsum, perrentege °factual Cast of the Work or other provision fordetemlining the Construc[ion Managers Fee, and explain how the Construction Manager's Fee is to be adjusted for changes in the Wont.) The amount which shall be paid to the Construction Manager for Construction Manager's Fee shall be 4.95% multiplied by the total Cost of the Work. 5.1.2 The amount which shall be paid to the Construction Manager for all insurance and bonding. including but not limited to Builder's Risk Insurance for the Cost of the Work, Owner's Protective/O.C.P. Insurance for the Cost of the Work, General Liability and Umbrella Insurance for the Cost of the Work, and Bond Premium for the Cost of the Work 1100% payment and performance bonds). shalt be 2.9% multiplied by the total Cost of the Work. 5.1.3 The amount which shall be paid to the Construction Manager for all General Conditions that may be reasonably anticipated for this Protect. including but not limited to full -time site supervision, field engineering. field office. safety. small tools. ice water and cups. telephone and fax service, storage buildings. sanitary facilities. waste containers. temporary electrical power, temporary water service. project signage, barricades and lights, temporary fencing. general cleanup. as- built drawings. and scheduling. shall be $385.97per day. 5.2 GUARANTEED MAXIMUM PRICE 5.2.1 The sum of the Cost of the Work and the Construction Manager's Fee 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 Owner. (Insert specific provisions if the Construction Manager is 10 participate in any savings.) 5.2.2 The GMP may be revised from time to time by additive or deductive change orders. The Final GMP shall be the GMP as set forth in Amendment No. 1 plus/minus change orders. 5.2.3 The final amount to be paid to the Construction Manager for the work performed pursuant to this Agreement shall be an amount not greater than the Final GMP. 5.2.4 The sum of $5.000.00 for Preconstruction Phase Services is understood to be included in the Guaranteed Maximum Price. 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. t may be determined by any of the methods listed m Subparagraph-7,3:3-of AIA Document Azot. 5.3.2 In calculating adjustments to subcontracts (except thoseawarded.wilh-the Owne s- prief-eensetit-on- the.basis-ef.eest -pluses fee}, the terms "cost' and "fee" as used in Clause 7.3.3.3x€ AIA Document A2o1 and the terms "costs" and "a reasonable allowance for overhead and profit" as used in Subparagraph-7,1-6-of AIA Document Azo1 shall have the meanings assigned to them in that document and shall not be modified by this Article 5. •• ' 5.3.3 In calculating adjustments to the Contract, the terms "cost" and "costs" as used in the abeve- refereneed-pr visions.ef AIA Document Azol shall mean the Cost of the Work as defined in Article 6 of this Agreement and the terms "and a reasonable allowance for overhead and profit" shall mean the Construction Manager's Fee as defined in Subparagraph 5.1.1 of this Agreement. 5.3.4 If no specific provision is made in Subparagraph 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 Subparagraph 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. 0 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21 /CMC AND AGC DOCUMENT 565 - OWNER -CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - 0 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia -- 6/13/2003. AIA License Number 1009596, which expires on 529/2004. Electronic Format Al21/CMc -1991 6.1 COSTS TO BE REIMBURSED COST OF THE WORK ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE 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 Owner. The Cost of the Work shall include only the items set forth in this Article 6. 622 LABOR-COSTS .4 a ferctrudion. workers .directly -enrpleyed -by he- Construction - Manager to- perfnnn 6.1.3 SUBCONTRACT COSTS Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the subcontracts. 6.1.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED CONSTRUCTION .1 Costs, including transportation, of materials and equipment incorporated or to be incorporated in the completed construction. .2 Costs of materials described in the preceding Glause 6.1.4.E in excess of those actually installed but required to provide reasonable allowance for waste and for spoilage. Unused excess materials, if any, shall be handed over to the Owner at the completion of the Work or, at the Owner's option, shall be sold by the Construction Manager, amounts realized, if any, from such sales shall be credited to the Owner as a deduction from the Cost of the Work .4 Cestss- including- Eranspettatiert inslallatierr enan er dismantling-and tetneval -of -materialsssupphes temporary facilities; -machinery. equipment,and- handteel'mot-eustomari :. : :' :. provided- . .. .._ . .... .. .. .. . .. .... .... .... .. .. .... .. such -items -if - not -fully -consumed,- ehetheE -sold 4e- others of - retained -by - the- 6enstatctien - Manager. -best -fee- items 6 ,6 C on s tme io_ Manager at the site, whether rented from -the Constmetion-Managerar- ethers costs-of- transpertet�ien,,3nstallatien - miner- repaireand- replaeementf-dismantlingand- removal •h°.° Rater 0 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1/35 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21/CMC AND AGC DOCUMENT 565 . OWNER - CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® AGC . ® 1991 • THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia — 6/13/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21 /CMc -1991 .4 Reproduction costs,fasts -ef4ee - faesimiletransmissions Tong-distance -telephone calls, -postage and express .6 That-portion -ofthe-reasonable traveland cub�ds ccnee expense —efthe Cons traction - Manager' personnel-ineurredtvhile k. 6:1.6 €LL-ANEOUS COSTS .2. Sales, -use -Of similar taxes -imposed -by -a -governmental authority -which -are - related 4e the -Work - and -for -which -the - €eesand _ ewente- ferthe huilding- permitand- fora thee- permits,dieensesanddnspeetiens -for- whiehthe-Censtruetion A Fees-eft esting-laboratories -for test;- required-bythe Contract-D ecuments ,eaeptthese- relatedteoencenfeerning -Woek- 3 Royalties -and li cense f ees pa id f r t h e se ofa- particular the-cost-ef-defending suits-orfdaims-fer- infringement-of- patent -or-ether- intellectual property righ g- fremsaeh- requirement-b the- Contract-Beenmentsi-payments made -in acs rdancc -legal judgmentsagainst- he Construction. Manager -resulting Froth such- suits and- payments of -settlements made- willtthe s-consent;- provided,. however, -that - suds -eons -of -legal defer° judgentsand settl��lemementsshall- not -be -included -inthe calculation s€-the- Genstruction- Managers Feesethe- Guaranteed- Matrimum- priceand- provided- thatsuch- royalties ; - feesand- costsare -net- exeluded -by the -last -sentence -ef _Subparagraph 3.17.1-of -MA - Document -Arm sr - ether - provisions -ef the Contract Documents, 6.1.7 OTHER COSTS Owneeset-ferthdn-this-Agreement. d b e g a t . - mediation and - a r b i t r a t i o n costs, -ether than -those arising F r o m -disputes - b e t w e e n the - er and - ensttastien Id. living -allowances -of -personnel -required -for -the - Work, -in -ease -it-Is oecessaiy te -relocate -such - personnel- from-distant locations. .1 Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the Owner. 4 kttakingaetiente- prevent threatenedtiamage,- injwyse- loss- infase -ofan emergency affecting the - sensand- 2 In- repairing orferteeting- damegedsr o on. -m' g- erk-executed-bythe Constr♦ ctiont.1anagersrthe- enstmetion. Managers Subcontractors sr s uppliers ; - providedthatsack-damagedsr- nonconforming- Workteas- net-eaased-bythe negligence -or -failure -to - ft>lftllaspeei€te-responsibility 4o the -Owner set - forth -in- this -Agreement -efthe Construction ® 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1/35 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006.5292- AIA DOCUMENT AIAl21/CMC AND AGC DOCUMENT 565 - OWNER - CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - 0 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D -C -, 20006 -5209- WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted' below- User Document: version 2a12kmc -aia — 6/13/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21/CMc -1991 MvfanageF-er -the Constmetion- ManagerT s - foramens -engineers . er- superintendents,-oF othcrsupeatisery, _dm:nistra istra ,^ . managerial-persennel-e C f-theonstruction- Manager;-ef- he-failure-ef-tAe- enstruetiess Manager3 personnel -tee adequately-the- 4/erk-of-the Subcontraeters-ersuppliers;and -only to-thez r6,a= -.,ha he cost -of- repair -m- correction- is -net- 6:79 The -costs a°�:� d-in -Subparagraphs —6 a- through- oa-.8 -shall -be - inel uded- in- the -Crest -of -the - Werk -notwithstanding -any .. .. the- CensteuEtiee -Managerh e-paysueh- eesfs COSTS NOT TO oc octMOtmccn 6-T 4 Salaries -and -ether -compensation -of -the -GensEFUEtien - Managers - personnel - stationed -at -the Censtnsetien - Manager's 3. .2 €xpenses-of-the Construction - Manager's - principal s€fee and -effiees -ether -than -the -site -office -except -as specifically. ,. i., P c. A The- CenstFUEtiert .Stud:.. `- 11 h° & weptas- provided -in- Clause G.1.8.2,-eests-due4e- he negligencc-ef- heConstnsclien Manager-or4e4he- failure-ef4he 6.3 DISCOUNTS, REBATES AND REFUNDS 6.3.1 Cash discounts obtained on payments made by the Construction Manager shall accrue to the Owner if (r) before making the payment, the Construction Manager included them in an Application for Payment and received payment therefor from the Owner, or (2) the Owner 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 Owner, and the Construction Manager shall make provisions so that they can be secured. 6.3.2 Amounts which accrue to the Owner in accordance with the provisions of Subparagraph 6.3.1 shall be credited to the Owner as a deduction from the Cost of the Work. 6.4 ACCOUNTING RECORDS 6.4.1 The 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 Owner. The Owner and the Owner'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. ® 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAI2UCMC AND AGC DOCUMENT 565 - OWNER - CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - ® 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia -- 6/13/2003 AIA License Number 1009596, which expires on 5/29/2004. Electronic Format AI21 /CMc -1991 7.1 PROGRESS PAYMENTS ARTICLE 7 CONSTRUCTION PHASE 7.1.1 Based upon Applications for Payment submitted to the Architect by the Construction Manager and Certificates for Payment issued by the Architect, the Owner shall make progress payments on account of the Contract Sum to the Construction Manager as provided below and elsewhere in the Contract Documents. 7.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, or as follows 7.1.3 Provided an Application for Payment is received by the Architect not later than the 30th day of a month, the Owner 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 Owner not later than thirty 1301 days after the Architect receives the Application for Payment. 7.1.4 With Following each Application for Payment, the ion- Managee3ltall- submit the Owner shall have the right to inspect the Construction Manager's payrolls, petty cash accounts, receipted invoices or invoices with check vouchers attached, and any other evidence required by the Owner or Architect to demonstrate that cash disbursements already made by the Construction Manager on account of the Cost of the Work equal or exceed (L) 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. 7.1.5 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 Architect the Owner may require. This schedule, unless -o jeeted- to-by- the - Architect shall be used as a basis for reviewing the Construction Manager's Applications for Payment. 7.1.6 Applications for Payment shall show the percentage completion of each portion of the Work as of the end of the period covered by the Application for Payment. The percentage completion shall be the lesser of (t) 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. 7.1.7 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: .1 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 fmal determination of cost to the Owner of changes in the Work, amounts not in dispute may be included as provided in Subparagraph 7.3.7-of AIA Document A2ot, even though the Guaranteed Maximum Price has not yet been adjusted by Change Order. .2 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 Owner, suitably stored off the site at a location agreed upon in writing. .3 Add the Construction Manager's Fee, less retainage of five percent (5%). The Construction Manager's Fee shall be computed upon the Cost of the Work described m the two preceding Clauses at the rate stated in Subparagraph 5.1.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Subparagraph, shall be an amount which bears the same ratio to that fixed -sum Fee as the Cost of the Work in the two preceding Clauses bears to a reasonable estimate of the probable Cost of the Work upon its completion. ® 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1/35 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21 /CMC AND AGC DOCUMENT 565 - OWNER -CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - 0 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006-5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia -- 6/13/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21 /CMc -1991 .4 Subtract the aggregate of previous payments made by the Owner. .5 Subtract the shortfall, if any, indicated by the Construction Manager in the documentation required by Subparagraph 7.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the Owner's accountants in such documentation: .6 Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Paragraph off AIA Document A2ot. 7.1.8 Except with the Owner's prior approval, payments to Subcontractors shall be subject to retention of not less than five percent (5%). The Owner and the Construction Manager shall agree upon a mutually acceptable procedure for review and approval of payments and retention for subcontracts. 7.1.9 Except with the Owner'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. 7.1.10 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 Subparagraph 7.1.4 or other supporting data; that the Architect has made exhaustive or continuous on -site inspections or that the Architect has made examinations to ascertain how or for what purposes the Construction Manager has used amounts previously paid on account of the Contras. Such examinations, audits and verifications, if required by the Owner, will be performed by the Owner's accountants acting in the sole interest of the Owner. 7.2 FINAL PAYMENT 7.2.1 Final payment shall be made by the Owner 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 nonconforming Work, as provided in Subparagraph 12.272 of AIA Document A2o1, and to satisfy other requirements, if any, which necessarily survive final payment; (2) a fmal Application for Payment and a final accounting for the Cost of the Work have been submitted by the Construction Manager and reviewed by the Owner's accountants; and (3) a final Certificate for Payment has then been issued by the Architect; such final payment shall be made by the Owner not more than 3o days after the issuance of the Architect's final Certificate for Payment, or as follows: 7.2.2 The amount of the final payment shall be calculated as follows: .1 1. Take the sum of the Final GMP /Contract Sum from Daraoraph 5.2.2. .2 Subtract amounts, if any, for which the Architect withholds, in whole or in part, a final Certificate for Payment as provided in °,.efAIA Document A2o1 or other provisions of the Contract Documents. .3 Subtract the aggregate of previous payments made by the Owner. If the aggregate of previous payments made by the Owner exceeds the amount due the Construction Manager, the Construction Manager shall reimburse the difference to the Owner. 7.2.3 The Owner's accountants will review and report in writing on the Construction Manager's final accounting within 3o days after delivery of the final accounting to the Architect by the Construction Manager. Based upon such Cost of the Work as the Owner's accountants report to be substantiated by the Construction Manager's final accounting, and provided the other conditions of Subparagraph 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 Owner 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 Sit of AIA Document A201. The time periods stated in this Paragraph 7.2 supersede those stated in Subparagraplif AIA Document A2ot. 7.2.4 If the Owner'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 Article 9 without a further decision of the Architect. Unless agreed to otherwise, a demand for mediation Of- arbiteatien of the disputed amount 0 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAI2I/CMC AND AGC DOCUMENT 565 - OWNER - CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - 0 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia — 6/13/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21 /CMc -1991 shall be made by the Construction Manager within 6o 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 6o-day period shall result in the substantiated amount reported by the Owner's accountants becoming binding on the Construction Manager. Pending a final resolution of the disputed amount, the Owner shall pay the Construction Manager the amount certified in the Architect's final Certificate for Payment. 7.2.5 If, subsequent to final payment and at the Owner's request, the Construction Manager incurs costs described in Paragraph 6.1 and not excluded by Paragraph 6.2 (t) to correct nonconforming Work, or (2) arising from the resolution of disputes, the Owner 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 Owner in determining the net amount to be paid by the Owner to the Construction Manager. Para ra ARTICLE 8 INSURANCE AND BONDS hs 8.1 .2 - re deleted in their entire and are re I wit "Add- dum u bet One to tandard Form of Agreement between Owner and Contractor and Addendum to General Conditions ". attached hereto. Ate] Commercial General -Liability - including coverage -for -Independent -Ceetractorc' "- �rel -Products- 6empleted-Operations ,-Contractual- biabilitl;- Personal- {njuty, and - Bread- Form- Property - antage_(indludtng coverage- fer-Ihrplesion,- O,h cec °Racrcv e . m�zv� During -both -phases -of - the - Projects -the -Owner shall purehasc Each-Oecurrenee- General-Aggregate- Personal-and- -Ad-years' ing r-.;..... Operations-Aggregate- 4- €a€AEeident- -Maintain liabilky and property - including -waivers-of e 1991 • THE AMERICAN INSTITUTE OF ARCHITECTS, 1/35 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 2000G -5292. AIA DOCUMENT AIAI21/CMC AND AGC DOCUMENT 565 - OWNER -CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - s 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia -- 6/132003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21 /CMc -1991 (14,-1 ty Pr oper i rx�. T - x�rav� °rrvc' 8,9 8.10 PERFORMANCE BOND AND PAYMENT BOND 8,3„1 8.10.1 The Construction Manager shall (/nsen "shall "or "shall not) furnish bonds covering faithful performance of the Contract and payment of obligations arising thereunder. Bonds may be obtained through the Construction Manager's usual source, and on forms and from companies acceptable to the Owner. . The amount of each bond shall be equal to one hundred percent (100 %) of the Contract Sum. 844 8.10.2 The Construction Manager shall deliver the required bonds to the Owner at least three days before the commencement of any Work at the Project site. ARTICLE 9 MISCELLANEOUS PROVISIONS 9.1 DISPUTE RESOLUTION FOR THE PRECONSTRUCTION PHASE 9.1 and 9.2 are deleted in their entirety and are replaced with the following: The Owner and the Construction Manager hereby agree that no claims or disputes between the Owner and the Construction Manager arising out of or relating to the Contract Documents or a breach thereof shall be decided by any arbitration proceeding including without limitation. any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1 - 14) or any applicable state arbitration statute. except that in the event the Owner is subject to an arbitration proceeding related to the Project. the Construction Manager consents to be ioined in the arbitration proceeding if the Construction Manager's presence is required or requested by the Owner for complete relief to be accorded in the arbitration proceeding. the - parties -te 4his Agreement -which arise -prior 2e -the ant -of the Construction - Phase -er -which -relate Manager -er to -the -Owner-s' -obligations 4e the Construction 9,14 Any - mediationeendueted-pursuant-telhis - Paragraph. 9 shall-be-held-in accordance- with-the Constwction D P O nee Aggregate-Deductible Mediation Rules -o€ -the -American -Arbitration - Association currently -in err. « -w.. t ..-the . Demand- for - mediation shall-h e- filed-ia- writing- with-the-ethec party -to -this Agreement -and with -the - Mnegean - 1rbitratien der - matter reasonable - time -after - the - claim - dispute be made-after -the -date when institution-ef- legal-or-equitable Proceedings- based -open question -would -be barred -by 4he - applicable -statute -of limitations. 9,1,3 Any claim, -dispute -or -other -matter -ie question -not • resolved -by - mediation -shall -be -decided by arbitration -in the . . .. .. .. .. _ . -. fr- .unless t h e part ie" m ally et 9,1,4 Demand - for- arbitrationshall-be- filed-in- writing -with. the ether -party to -this "teem_.• and -with the American ceneueently -with -a-demand-for-mediation-and -shall-he-made- within -a - reasonable 4ime -after -the -dispute -or -other arbitration -be -made -after -the dale- when-institutional- legal-er equitable - clainrdispute- or-elber limitations. 9„b5 Ne arbitration arising - ea - o€ -er - relating 40 - the Contract- Decumcntsshall- include , -by conselidation-er-jeinder or -in -any Biller - manner* 4he Architect 4he Areh t " reference 4e the Agreement -and -signed b -the specific orentityseught4eke- joined 47earhitrotienshall- include-, -by . eenselidatien -er- jeinder-or-inany-other- manner* par4ies-elbee- ® 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292, AIA DOCUMENT AIAI21 /CMC AND AGC DOCUMENT 565 - OWNER -CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® AGC - ® 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia -- 605/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21 /CMc -1991 than-the-Ownee Contraction- Manager,a separate contractor as -described -in Article - -ef -MA - Document -Ayer and -other law -w hose presence -is - required -if -complete - relief -is 40 -be accorded -in arbitration, -No - person -or entity -ether than the Avner -or Construction- Manager -or -a-separate-contractor as described -in Article-6 of AIA - Document AniishaR -e- included as an -eriginal -third - party -Of additional third party 40 an arbitration svhese interest -or -responsibility -is -insubstantial, Gensent4e- arbitration -involving-anadditional- person or entity shall not_ c �nst to tc agreement t -arbitration rbitration -of a n -dispute -��et �� of �flbed t h ere in h � forcgoingt-to- arbitrate -aas4 ether agreements to arbitrate -with an additional - person -or entity-duly --�d a- by- partrestethis- AgreementshaRke specifically enforceable -under applicable -law -in -any -court h j ,h 9 6 The -award - rendered -by -the arbitrator sr arbitrators shall -he -final, and - judgment -may -be -entered -upon -it -in thereof. 9.2 DISPUTE RESOLUTION FOR THE CONSTRUCTION PHASE 9,2,1 Any- othertdainr-dispute -or- ether - matter -in- question. arising -out -of -or - related to -this-Agreement -or - breach thereof shall -he- sealed -in- accordance -with 4rtiele -4 of AIA Document Mot, -except-that-in-addition 4o-end-prier to arbitratieinthe parties -shall -endeavor to -settle -disputes -by - mediation -in accordance -with the ican va_� es ...t..« the -parties -mutually agree h ot�� rw.-s -Any -mediation arising 9.3 OTHER PROVISIONS 9.3.1 Unless otherwise noted, the terms used in this Agreement shall have the same meaning as those in the 1987 Edition of AIA Document Azoi, General Conditions of the Contract for Construction. 9.3.2 EXTENT OF CONTRACT This Contract, which includes this Agreement and the other documents incorporated herein by reference, represents the entire and integrated agreement between the Owner and 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 Owner and Construction Manager. If anything in any document incorporated into this Agreement is inconsistent with this Agreement, this Agreement shall govern. 9.3.3 OWNERSHIP AND USE OF DOCUMENTS The Drawings, Specifications and other documents prepared by the Architect, and copies thereof fumished to the Construction Manager, are for use solely with respect to this Project. They are not to be used by the Construction Manager, Subcontractors, Sub - subcontractors or suppliers on other projects, or for additions to this Project outside the scope of the Work, without the specific written consent of the Owner and Architect. The Construction Manager, Subcontractors, Sub- subcontractors and suppliers are granted a limited license to use and reproduce applicable portions of the Drawings, Specifications and other documents prepared by the Architect appropriate to and for use in the execution of their Work under the Contract Documents. 9.3.4 GOVERNING LAW The Contract shall be governed by the law of the place state where the Project is located. and venue shall lie in Williamson County, Texas. 9.3.5 ASSIGNMENT The Owner and Construction Manager respectively bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents. Neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. ARTICLE 10 TERMINATION OR SUSPENSION 10.1 TERMINATION PRIOR TO ESTABLISHING GUARANTEED MAXIMUM PRICE 10.1.1 Prior to execution by both parties of Amendment No. 1 establishing the Guaranteed Maximum Price, the Owner may terminate this Contract at any time without cause, and the Construction Manager may terminate this Contract for any of the reasons described in Subparagraph44+-s44AIA Document A2ot. 10.1.2 If the Owner or Construction Manager terminates this Contract pursuant to this Paragraph 10.1 prior to commencement of the Construction Phase, the Construction Manager shall be equitably compensated for Preconstmction Phase services performed prior to receipt of notice of termination; provided, however, that the compensation for such services shall not exceed the compensation set forth in Subparagraph 4.i.1. 10.1.3 If the Owner or Construction Manager terminates this Contract pursuant to this Paragraph 10.1 after commencement of the Construction Phase, the Construction Manager shall, in addition to the compensation provided in Subparagraph 10.5.2, be paid an amount calculated as follows: ® 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21 /CMC AND AGC DOCUMENT 565 - OWNER -CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - ® 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia -- 6/13/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Formal Al21 /CMc -1991 O .1 Take the Cost of the Work incurred by the Construction Manager. .2 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 Work at the time of termination bears to a reasonable estimate of the probable Cost of the Work upon its completion. .3 Subtract the aggregate of previous payments made by the Owner on account of the Construction Phase. The Owner shall also pay the Construction Manager fair compensation, either by purchase or rental at the election of the Owner, for any equipment owned by the Construction Manager which the Owner elects to retain and which is not otherwise included in the Cost of the Work under Clause to.1.3.1. To the extent that the Owner elects to take legal assignment of subcontracts and purchase orders (including rental agreements), the Construction Manager shall, as a condition of receiving the payments referred to in this Article to, 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 Owner may require for the purpose of fully vesting in the Owner 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 Owner's written approval prior to the execution of Amendment No. t shall contain provisions permitting assignment to the Owner as described above. If the Owner accepts such assignment, the Owner shall reimburse or indemnify the Construction Manager with respect to all 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 Owner elects not to accept the ARTICLE 11 OTHER CONDITIONS AND SERVICES 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 Owner shall pay the Construction Manager the costs necessarily incurred by the Construction Manager by reason of such termination. 10.2 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 Article -t4-of AIA Document Amt. 10.2.1 In the event of such termination by the Owner, the amount payable to the Construction Manager pursuant to Subparagraph- r#.2-of AIA Document Azot shall not exceed the amount the Construction Manager would have been entitled to receive pursuant to Subparagraphs 10.1.2 and to.1.3 of this Agreement. 10.2.2 In the event of such termination by the Construction Manager, the amount to be paid to the Construction Manager under Subparagraph 14.1.2-sf AIA Document Azot shall not exceed the amount the Construction Manager would be entitled to receive under Subparagraphs 10.1.2 or 10.1.3 above, except that the Construction Manager's Fee shall be calculated as if the Work had been fully completed by the Construction Manager, including a reasonable estimate of the Cost of the Work for Work not actually completed. 10.3 SUSPENSION The Work may be suspended by the Owner as provided in Article-1.ko€ AIA Document Azoi; in such case, the Guaranteed Maximum Price, if established, shall be increased as provided in SulVor 14.3.2 -ef AIA Document Azoi except that the term "cost of performance of the Contract" in -that Subparagraph 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 Subparagraphs 5.1.1 and 5.3.4 of this Agreement. 11.1 There is only one Guaranteed Maximum Price (GMP) provided by this Agreement. The amounts of the individual line items are not guaranteed. The final cost of any particular line item may be more or may be less than the estimate. The Construction Manager does. however. guarantee to perform all of the work required by the Contract Documents within the GMP and within the stated Contract Time. 11.2 Upon Substantial Completion of the Work. the Owner. Architect and Construction Manager shall walk the Project and prepare a "punch list" which will describe all of the items to be performed by the Construction Manager to bring the Project to full completion. When the Construction Manager performs these to the Owner's satisfaction. the Project shall be deemed to be one hundred percent (100 %) completed. es 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21/CMC AND AGC DOCUMENT 565 - OWNER -CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC . e 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia -- 6/13/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21/CMc -1991 11.2.1 For all items which appear on the "punch list," the cost of remedying or repairing same shall be considered a Cost of the Work as defined in the Contract Documents, unless repairs are clue to the negligence of the Construction Manager 11.2.2 If the Construction Manager's work has been completed. but a Certificate of Occupancy is not issued because of administrative delay on the part of the appropriate building authority. or because of the work of separate contractors at the Project site in the employ of the Owner. or for any reason beyond the control of the Construction Manager then the final payment will be made to the Construction Manager. provided that other requirements herein for final payment have been met 11.3 The Construction Manager will protect the Work. materials and equipment on the Proiect site and will not damage or unduly interfere with the work, materials or equipment of others. The Construction Manager will not repair or replace except for reasonable compensation. any of its work or installations damaged directly or indirectly through. by, or as a result of items listed in Warranty provisions of the General Conditions and any of the following: 11.3.1 Defective design or material supplied by the Owner, or the Owner's separate contractor or supplier. 11.3.2 Any defect in materials or work. or defects caused by materials or work supplied by anyone other than the Construction Manager, its subcontractors. or its agents. 11.3.3 Damage to any items by the Owner or occupant during move -in, including but not limited to cabinets. appliances counter tops, drywall or plaster surfaces. floor or wall coverings. paint, plumbing fixtures. faucets. window glass, mirrors electrical fixtures, and ceramic tile. 11.4 Liquidated Damages: Time is of the essence in this Agreement. Therefore. if the Construction Manager fails to achieve Substantial Completion of the Work (or any portion of the Work) on or before September 7 2003 th at bein the date specified for Substantial Completion in the Agreement, then and in that event the Construction Manager shall pay to the Owner, as liquidated damages. the sum of Two Hundred Fifty Dollars ($250.00) per day for each calendar day or portion of a day that Substantial Completion is delayed after the date specified for Substantial Completion, due to failure of the Construction Manager to have achieved Substantial Completion in accordance with the Contract Documents. It is hereby agreed by the parties that the liquidated damages to which the Owner is entitled hereunder are a reasonable forecast of lust compensation for the harm that would be caused by the Construction Manager's failure to achieve Substantial Completion of the Work (or any portion of the Work) on or before September 7. 2003. It is hereby agreed by the parties that the harm that would be caused by such failure, which includes loss of expected use of the Project areas provision of alternative storage facilities and rescheduling of moving and occupancy dates, is one that is incapable or very difficult of accurate estimation. It is hereby agreed by the parties that if Substantial Completion of the Work (pr any part of the Work) is not achieved on or before thirty (30) days after September 7, 2003. that being the date specified for Substantial Completion in the Agreement. then and in that event the harm that would be caused to the Owner cannot be reasonably forecast because it would include business disruption to the Owner in addition to loss of expected use of the Proiect areas. provision of alternative storage facilities and rescheduling of moving and occupancy dates. Thus. at the Owner's option and in the Owner's sole discretion. the liquidated damages set forth herein may cease to be assessed under the Contract Documents after thirty (30) days after the date specified for Substantial Completion. and the Owner may choose thereafter to rely on its remedies under the Contract Documents and at law and in equity. including without limitation the recovery of actual damages. The date specified in the Agreement for Substantial Completion of the Work (or any portion of the Work). that being September, 2003. shall not be subject to adiustment for any reason whatsoever. 11,5 Warranties: The warranty provided herein shall be in addition to and not in limitation of any other warranty or remedy required by law or by the Contract Documents. and such warranty shall be interpreted to require the Construction Manager to replace defective materials and equipment and re- execute defective Work which is disclosed to the Construction Manager by the Owner within a period of one (1) year after Substantial Completion of the entire Work or within a longer warranty time if such is specifically called for in the Specifications or as otherwise provided by law. In each instance where the Construction Manager becomes obligated to correct defective Work. the one (1) year warranty period specified shall automatically be renewed and recommenced, beginning when such correction is completed as to the Work corrected. so that the Construction Manager's warranty obligations remain in effect as to each portion of the Work until each portion of the Work has functioned properly for an entire year. ® 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21 /CMC AND AGC DOCUMENT 565 - OWNER -CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - 0 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as rated below. expiration as noted below. User Document: version 2a121cmc.aia — 6/17/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21/CMc -1991 19 11.5.1 The Construction Manager shall issue in writing to the Owner, as a condition precedent to final payment. a "General Warranty" reflecting the terms and conditions for all Work under the Contract Documents. This General Warranty shall be assignable. 11.5.2 Except when a longer warranty time is specifically called for in the Spec cations or as otherwise provided by law, the Construction Manager shall warrant for a period of twelve (12) months from Substantial Completion that the buildings shall be watertight and leakproof at every point and in every area, except where leaks can be attributed to damage to the buildings by external forces beyond the Construction Manager's control. The Construction Manager shall. immediately upon notification by the Owner of water penetration, determine the source of water penetration and, at its own expense, do any work necessary to make the buildings watertight. The Construction Manager shall also. at its own expense, repair or replace any other damaged materials finishes. and fumishings damaged as a result of this water penetration. to retum the buildings to their original condition. 11.5.3 Except when a longer warranty time is specifically called for in the Specifications or as otherwise provided by law. the General Warranty shall be for twelve (12) months from Substantial Completion and shall be in form and content otherwise satisfactory to the Owner. 11.5.4 Warranties shall become effective on a date established by the Owner and the Architect in accordance with the Contract Documents. This date shall be the Date of Substantial Completion of the entire Work. This Agreement entered into as of the day and year first written above. OWNER CONSTRUCTION MANAGER CITY OF ROUND ROCK, TEXAS BRATH, INC. By: Nyle Maxwell, Mayor Date: Title: 1/( 4 fN.ravr Date: ATTEST: By: Christine R. Martinez, City Secretary By: /'J0 -% 19 1 - THE AMER! A 1 1 • • AR ' •• AY - ■ , r<., WAS 1 GTON, D. . -5 . AIA DO UMENT AIAl21 /CMC AND AGC DOCUMENT 565 - OWNER- CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - 0 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W_, WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia — 6/13/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21/CMc -1991 Amendment No. i to Agreement Between Owner and Construction Manager Pursuant to Paragraph 2.2 of the Agreement, dated the day of the month of June, 2003, by and between the City of Round Rock, Texas (the Owner) and Brath, Inc. (the Construction Manager), for construction of new restroom/concession/storage facilities located at Old Settlers Park at Palm Valley (the Project), the Owner and the Construction Manager hereby establish a Scope of Work, a Guaranteed Maximum Price, and Contract Time/Completion Dates for the Work as set forth below. Article 1 THE WORK The scope of work included in this Amendment, and its Guaranteed Maximum Price, is for the work in its entirety for the construction of new restroom/concession/storage facilities located at Old Settlers Park at Palm Valley. The following exhibits supplement this Agreement: Article 2 EXHIBITS Exhibit "A" Scope of Work Exhibit `B" Drawings, Specifications and Addenda Exhibit "C" Construction Manager's "Guaranteed Maximum Price Clarifications and Spreadsheet" Article 3 GUARANTEED MAXIMUM PRICE The Construction Manager's Guaranteed Maximum Price (the GMP) for the Work, including the estimated Cost of the Work as defined in Article 6 and the Construction Manager's Fee as defined in Article 5, is Two Hundred Sixty Two Thousand Four Hundred Eighty -four Dollars ($262,484.00). This price is for the performance of the Work in accordance with the Contract Documents and any attached exhibits. The GMP includes only. (a) The amount agreed to by the Owner and the Construction Manager, which is estimated to be the anticipated actual Cost of the Work; (b) The Construction Manager's Fee of 4.95% of the Cost of the Work; (c) The amount paid to the Construction Manager for Insurance and Bonding cost, which is 2.9% of the actual Cost of the Work; and (d) The amount for preconstruction services, which is the stipulated sum of $5,000.00. 1 Article 4 CONTRACT TIME/COMPLETION DATES Contract Time is a crucial element of this Project; therefore, Completion Dates are not subject to change. The Substantial Completion Date for the Project is September 7, 2003. OWNER: CONSTRUCTION MANAGER: City of Round Rock, Texas By By: Nyle Maxwell, Mayor ATTEST: Christine R. Martinez, City Secretary 2 Brath, Inc. Date: Date: /® /' w y Title: EXHIBIT "A" SCOPE OF WORK Performance of complete Construction Manager at Risk services and complete actual construction services for new restroom/concession/storage facilities of approximately 1,600 square feet, same to be located at Old Settlers Park in Round Rock, Williamson County, Texas. Construction shall include all work and divisions of work necessary to fully and finally build and complete the referenced Project to the specifications contained in the contract and all associated documents. EXHIBIT „AII REQUEST FOR QUALIFICATIONS & PROPOSAL FOR CONSTRUCTION MANAGEMENT AT -RISK SERVICES CITY OF ROUND ROCK SOCCER FIELD FACILITIES AT OLD SETTLER'S PARK ROUND ROCK, TEXAS Proposals are due 2:OOPM, May 27, 2003 at the City of Round Rock Council Chambers 221 E. Main Street, Round Rock, TX 78664 Phone (512) 341 -3345 / Fax (512) 218 -5548 in an r c6i.itects 309 West Main Street, Suite 120 Round Rock, Texas 78664 (512) 733 -1150 a EXHIBIT Notice to Proposers City of Round Rock REQUEST FOR SEALED PROPOSALS FOR CONSTRUCTION MANAGER AT -RISK SERVICES Pursuant to the provisions of Senate Bill , it is the intention of the City of Round Rock [the City] to select via the Request for Proposal process a constmction manager -at -risk for the construction of the Soccer Field Facilities as generally described herein. Proposals are to include the specific qualification information requested in the sequence and format prescribed. In addition to and separate from the requested information, offerors submitting proposals may provide supplementary materials further describing their capabilities and experience. In order to be considered for selection, five (5) copies of the completed questionnaire must be delivered to the City of Round Rock Council Chambers by the date and time specified. Proposal forms and guidelines are available at Moman Architects, Inc., 309 W. Main Street, Suite 120, Round Rock, TX 78664. Questions regarding the proposal may be addressed to Moman Architects, Inc. PROPOSALS MUST BE RECEIVED NO LATER THAN 2:OOPM May 27, 2003 Any proposal received after such time will not be considered and will be returned unopened. Proposals will be received by the Parks and Recreation Department (PARD) Director or Staff Member at City of Round Rock Council Chambers 221 E. Main Street, Round Rock, TX 78664 Following the de:vitine for receipt, the PARD Staff will receive, publicly open, and read aloud the names of each offeror and the fees and prices, if any, stated in the proposals. Within 45 days following the date of the opening PARD staff will evaluate and rank each proposal submitted in the relation to the selection criteria set forth in Section 11 of this document A recommendationwill be made to the City Council as to the ranking of the proposals. Following City Council approval of the ranking, the City will attempt to negotiate a final contract with the most highly qualified offeror based on the selection criteria set forth herein. If the City is unable to reach an agreement with the fast ranked offeror the City shall terminate negotiations with that offeror and begin the negotiation process with the second ranked offeror (never returning to the first ranked offeror). This process shall continue until an agreement has been negotiated with a ranked offeror or the City rejects all proposals for this project The City will select a construction manager from the respondents to this request for proposals, or reject all proposals. In determining which proposal provides the best value, the City will consider all responses to the questions set forth in Section II of this document and will use those respon^ -s and other available information to assess the following selection criteria ITEM MAX SCORE RANGE Responsiveness of Submittal 5 Reputation/ References 20 Mohan Architects, Inc 2 City of Round Rock CM/RFP Company's experience & past performance - 25 Experience in public funded facilities Experience in projects of similar scope Project history (completion, cost control, safety record) History of litigation or bankruptcy Proposed personnel and methodology 15 Staff qualifications Proposed subcontractors Understanding of project/ project approach Suitability of the Company's services 15 Current workload Stability/ years in business Proximity to site Size of this project to past work Past relationship with the Design Team 10 Proposed Fee 10 TOTAL 100 The City reserves the right to verify the accuracy and completeness of all responses by utilizing any information available to the City without regard to whether such information appears in your proposaL Summary The project prospectus is intended to provide basic information on the scope of the work completed in terms of size, complexity, budget, and other project features to aid firms in expressing their desire to be selected to provide construction management services. Please read the prospectus, verify the project requirements, and express your interest accordingly. Exact details may vary. The scope of the services requested in the RFQ include providing constructability, cost estimating and value engineering input during the Design and Construction Document preparation phases of the architect's design efforts, and at a point between 75% and 90% completion of the Construction Documents, providing the City with a Guaranteed Maximum Price (GMP) for the construction of the project The Construction Manager will use the architect's Construction Documents to develop bid package for all items of work for the project, and take sub- contract bids on the work. The City will participate in the review and acceptance of all sub - contract bids. The Construction Manager will coordinate and supervise all sub - contract work to complete the construction of this project As delineated in the RFQ, compensation to the Construction Manager will include the cost to deliver the assignment under a Guaranteed Maximum Price, plus a negotiated fee for involvement in the Design Phase and for profit and overhead. Each submitting firm is asked to provide the following fee proposal for this project • Fee for Design and Bid/Award Phase services including professional fees, estimating and personnel cost (see Exhibit C). • Fee for the construction Phase services, including general conditions, professional fees, insurances, and bond premium (see Exhibit C). Scope of the Work Provide Construction Management Services (At -Risk) for the design phase, bid/award phase, and construction phase of the City of Round Rock Soccer Field Facilities. See the attached preliminary drawing for a general description of the scope of this wortc The firm selected will provide the construction management services to complete the project, ready for occupancy as indicated in the attached milestone Moman Architects, Inc 3 City of Round Rock CM/RFP schedule for the project. The budget for this project is estimated at $260,000. The City has selected the firm of Moman Architects, Inc. as project architects. INFORMATION TO BE PROVIDED BY OFFERORS Please provide the following information in sequence and format prescribed by this questionnaire. Supplemental materials providing additional information may be attached, but the information requested below is to be provided in this format 1. Firm Information Name of Firm: 2_ Organization Address of Principle Office: Phone: Fax: Form of Business Organization: Year Founded: Name of Primary Contact: Position with Firm: Number of Employees in the Office: Field How many years has your organization been in business in construction management or building construction in its current form? How many years has your organization been in business under its present name? Under what other form or name has your organization operated? 2.2 If your organization is a corporation, please provide the following: Date of incorporation: State of incorporation: Type of Corporation: President's Name(s): Secretary's name: Treasurer's name: Moman Architects, Inc 4 City of Round Rock CM/RFP 3. Experience 2.3 If your organization is a partnership, answer the following: Date of organization: Type of partnership: Name(s) of general partners, with percentage of ownership: 23 If the form of your organization is a sole proprietorship: Name of owner: Address: Telephone/Fax: 2.4 Please identify any conflicts of interest that may exist between your organization and City Council members, City staff or directors or the City's architects/engineers. 3.1 List your experience over the last seven years in public funded construction. For each project provide the project name, nature of the building, size, location, original contract cost, final cost, completion date, owner contact and architect Please include telephone numbers for the owner and architect (see Exhibit A). 32 Provide a list of all projects currently in progress and completed within the last three years. Indicate which projects were performed using construction management at risk method (see Exhibit B). 3.3 List the categories of work your organization normally performs with its own forces. Would you propose to do any work with your own forces or to bid all work to subcontractors? 3.4 List any subcontractors in which your organization has some ownership and list the categories of work those subcontractors normally perform. 3.5 Identify all key staff you propose to use with appropriate responsibility on this project. Include a resume limited to one page per individual, including any related public funded construction experience. 3.6 Claims and suits (If the answer to any of the questions below is yes, please attach details.) 3.6.1 Has your organization or any predecessor organization ever failed to complete any work awarded? 3.6.2 Identify any judgments, claims, arbitration proceedings or suits, currently pending or outstanding against your organization, its officers, or any predecessor organization - Moman Architects, Inc 5 City of Round Rock CM/RFP 3.6.3 Within the last seven years has any officer or principal of your organization ever been an officer or principal of another organization when it failed to complete a construction contract? (If the answer is yes please attach details.) 3.7 Within the last seven years has any officer or principal of your organization ever been an officer or principal of another organization when it failed to complete a construction contract? Of the answer is yes please attach details.) 3.8 Within the last seven years has your organization, any officer or principal of your organization, or any predecessor organization filed for baalmtptcy? (If the answer is yes please attach details.) 4. Financial Information 4.1 Attach a financial statement, preferably audited, including your organization's latest balance sheet and income statement showing the following items. The City, at the firm's request, will keep this information confidential. • Current assets • Non - current assets • Current liabilities •'Noncurrent liabilities • Capital accounts and equity positions • Notes to the financial statement, including related party transactions 4.2 Name and address of firm preparing attached financial statements and date thereof. 4.3 Provide name, address, phone number, and contact person of your financial institution. 4.4 Surety: Name and address of bonding company and name and address of agent Performance and payment bond equal to 100% of construction cost will be required upon submission of the GMP. 5. Experience with concept for working as a Construction Manager. 5.1 Describe your organization's concept for working in a team relationship with the Owner and Architect during the design and construction of the major projects. 5.2 Describe your organisation's method for estimating costs, and scheduling during the design/documents phase. It is anticipated that the guaranteed maximum price (GMP) will be furnished at 90% construction document phase. 5.3 Attach a sample conceptual cost estimate prepared during the design phase of a project and a sample of the final cost estimate/breakdown used to fix the contract amount for the construction of the same project 5.4 Describe the organizations cost control system utilized during the construction phase. 5.5 Describe your organization's concept and reasoning for the disposition of savings realized during construction 5.6 Describe your organization's concept for cost contingencies during design and during construction. What is your organization's concept for the disposition of contingency funds after the completion of the project? Moman Architects, Inc 6 City of Round Rock CM/RFP 53 Your fine would be required to make all cost information during design and construction available to the owner and architect. Describe how this information would be furnished and how the owner and architect would be assured that it is complete and accurate. Moman Architects, Inc 7 City of Round Rock CM/RFP Exhibit A —Public Funded Projects (provide additional sheets as needed) Project Name: Nature of Building: Size: Location: Bid Cost Final Cost (w /CO's): Completion Date: Owner's Contact: Telephone No.: Project Architect Telephone No.: Project Name: Nature of Building: Size: Location: Bid Cost: Final Cost (w /CO's): Completion Date: Owner's Contact: Telephone No.: Project Architect Telephone No.: Project Name: Nature of Building: Size: Location: Bid Cost Final Cost (w /CO's): Completion Date: Owner's Contact Telephone No.: Project Architect: Telephone No: Moman Architects, Inc 8 City of Round Rock CM/RFP Exhibit B- Projects Completed in the Last Three Years (provide additional sheets as needed) Project Name: - Nature of Building: Size: Location: Bid Cost Final Cost (w /CO's): Reasons for change orders: Completion Date: Contact: Telephone No.: Project Architect Telephone No.: Project Name: Nature of Building: Size: Location: Bid Cost Final Cost (w /CO's): Reasons for change orders: Completion Date: Contact: Telephone No.: Project Architect Telephone No.: Project Name: Nature of Building: Size: Location: Bid Cost Final Cost (w /CO's): Reasons for change orders: Completion Date: Contact Telephone No.: Project Architect Telephone No.: Moman Architects, Inc 9 City of Round Rock CM/RFP Exhibit C- Fee Proposal I. Lump sum fee for Design and Bid/Award Phase services including professional fees, estimating and personnel cost, to include but not be limited to: A. Provide a preliminary evaluation of the Owner's program and Project budget requirements. B. With the Architect, jointly schedule and attend regular meetings with the Owner and Architect. C. Consult with the Owner and Architect regarding site use and improvements, and the selection of materials, building systems and equipment D. Provide recommendations on construction feasibility, 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 economics. E. Prepare, and periodically update, a preliminary Project schedule for the Architect's review and the Owner's approval. Coordinate and integrate the schedule with the services and activities of the Owner, Architect, and Construction Manager. F. Prepare for the review of the Architect and approval of the Owner a preliminary cost estimate utilizing area, volume or similar conceptual estimating techniques. G. When Schematic Design Documents have been prepared, prepare for the review of the Architect and approval of the Owner, a detailed estimate with supporting data; periodically update and refine this estimate. If any estimate submitted to the Owner exceeds previously approved estimates or the Owner's budget, the Construction Manager shall make appropriate recommendations. H. Seek to develop subcontractor interest in the Project and furnish to the Owner and Architect for their information a list of possible subcontractors. I. Recommend to the Owner and Architect a schedule for procurement of long -lead time items and expedite the delivery of long -lead items. J. When the Drawings & Specifications are complete, propose a detailed Guaranteed Maximum Price, which provides for further development of the Drawings and Specifications II. Fees for all Construction Phase services, to include but not to be limited to: A. All Construction Management/Contractor Services stated as a percentage of construction cost B. All General Conditions that can reasonably be anticipated for this project, including but not limited to: full -time site supervision; field engineering; field office; safety, small tools; ice water and cups; telephone and fax service; storage buildings; sanitary facilities; waste containers; temporary electrical power, temporary water, project sign; barricades and lights; temporary fencing, general clean -up; as -built drawings; and scheduling. (Note: building permits and tap fees shall be obtained by the construction manager and paid for by the City). The above stated as itemized units costs per month of construction- C. All insurance & bonding including, but not limited to: Builder's risk Insurance for the cost of the work; Owner's Protective/O.C.P. Insurance for the cost of the work; General Liability and Umbrella Insurance for the cost of the work; Bond Premium for the cost of the work (100% performance and payment bonds.) The above stated as a percentage of construction cost. Moman Architects, Inc 10 City of Round Rock CM/RFP III_ Hard Cost Construction savings split. The foregoing is true and correct The City of Round Rock, or any unauthorized representative of the Parks and Recreation Department, is authorized by the undersigned to contact any firm, institution, or person listed above to obtain information about out firm's services, financial condition, and any other information which the City of Round Rock might determine as being desirable Offeror. By (signature) (printed name) Title Moman Architects, Inc 11 City of Round Rock CM/RFP ADDENDUM NO. 1 05/27/2003 To all interested parties on the Work entitled: City of Round Rock Soccer Field Facilities REQUEST FOR SEALED PROPOSALS FOR CONSTRUCTION MANAGER AT -RISK SERVICES This Addendum shall be considered part of the Request for Sealed Proposal due 05/27/2003 for the above - mentioned project as though it had been issued at the same time and incorporated integrally therewith. Where provisions of the following supplementary data differ from those of the original RFSP, this Addendum shall govern and take precedence. bidders are hereby notified that they shall make necessary adjustments in their response to this RFP on account of this Addendum. It will be construed that each bidder's proposal is submitted with full knowledge of all modifications and supplemental data specified therein. . I CHANGE the scoring criteria as follows: ITEM MAX SCORE RANGE Ual Deleted Reputation/ References 15 Company's experience & past performance 20 Experience in public fitnded facilities Experience in projects of similar scope Project history (completion, cost control, safety record) History of litigation or bankruptcy Proposed personnel and methodology 10 Staff qualifications Proposed subcontractors Understanding of project/ project approach Suitability of the Company's services 15 Current workload Stability/ years in business Proximity to site Size of this project to past work Past relationship with the Design Team 10 Proposed Fee 10 Ability to Meet Schedule 20 TOTAL 100 1 .2 ADD Exhibit "D" as follows: 1. Demonstrate your ability to meet the proposed schedule assuming a start date of June 16, 2003 and a date of September 1, 2003 for Substantial Completion for the completion of the Concession/Storage & Toilet and the Toilet Facilities. The wastewater extension work will be under separate contract and is not to be considered part of this scope of work. C. Provide additional information to support your ability to meet this schedule. END Of ADDENDUM NO. I MAFro I O-00Project Files1130dmg1Addendum\A8dendum# I -052703.doc Addendum #1 Page 2 Exhibit D- Ability to Meet Schedule A. Provide a preliminary schedule identifying critical path and long lead items. B. Provide critical dates for decisions needed, submittal returns and other items necessary to meet this schedule. op ir NI 0I m gs L. - , ' l ordir 2 phr A A Armi ppi , AlIVAIr AVAIVAIIII/r SCREEN TYPES WALL TYPES DOOR AND FRAME ELEVATIONS ROOM FINISH SCHEDULE DOOR SCHEDULE EMMIK=MMULMEB,7•VI M MMIIIMV,BRUMZ•li .. MMIMMIffirEffr.BrP. .. 11FMNIMI.EL73.10. .. NIMI.67/7.71Ifft7 Iff•M=GM.136:=IIE^A 1■••11MIN GONCESSION/RMINGON BUILDING u. au am RO ▪ PPM 10111.0.1 4: ff. TOW NM MVO 03.113111...ffNAS RPM NPM MPRM CRY OF ROUND ROCK SOCCER FACILITIES OLD SM., P. 7 FrAINFAIIIVAOM ' ' P PF • ■1 o ' . -of ' , 'L 1 , , , SCREEN TYPES WALL TYPES DOOR AND FRAME ELEVATIONS ROOM FINISH SCHEDULE DOOR SCHEDULE EMMIK=MMULMEB,7•VI M MMIIIMV,BRUMZ•li .. MMIMMIffirEffr.BrP. .. 11FMNIMI.EL73.10. .. NIMI.67/7.71Ifft7 Iff•M=GM.136:=IIE^A 1■••11MIN GONCESSION/RMINGON BUILDING u. au am RO ▪ PPM 10111.0.1 4: ff. TOW NM MVO 03.113111...ffNAS RPM NPM MPRM CRY OF ROUND ROCK SOCCER FACILITIES OLD SM., P. Ening WNW 5 2 WEST .Vd 3 . 101111 11111111111. l% urrrwi! 111 Nu FA I !I!! !!!!i iii i 1 'II NJUM General Contractors SOCCER FACILITIES P.A.R.D ROUND ROCK, TEXAS GUARANTEED MAXIMUM PRICE CLARIFICATIONS JUNE 12, 2003 1. Final complete plans must be available by noon June 17 2. Topsoil, re- seeding, re- sodding by owner. 3. Any excess excavated material to be left on site in designated area. 4. Building permit must be obtained by June 24, 2003. 5. Materials testing by owner. 6. Includes wood roof trusses at 24" O.C. with a 3' cantilever each end. 7. Excludes water repellent or paint on masonry. 8. All screen types to be 26 ga, galvanized unpainted louvers by Capitol Company. 9. All permits and fees by owner. 10. Porcelain plumbing fixtures in lieu of stainless steel, wall hung. 11. Includes two each 2' X 2' columns at North side only. 12. Project completion based on block delivery twenty-eight (28) days following award of contract. Authorization to order block must be given by June 17 13. Guaranteed Maximum Price based on drawings A2.1 and A3.1 only. 14. GIMP based on wall hung individual porcelain sinks in restrooms. 15. Connecting beams to be LVL wood at breezeway (2 each) and concession porch (2 each). EXHIBIT "c„ 16. Excludes termite control 17. No ceilings in restrooms or concession stand. 18. No painting of exposed wood trusses wood deck, or roofing. 19. No roof insulation. 20. All floors to be sealed concrete. 21. Excludes the 25'4" X 25'4" small restroom in the preliminary drawings. 22. Includes one stainless steel table. 23. Excludes telephone and telephone shelt7wall. 24. Includes 24 ga. galvalume plus, 1 inch snap -loc standing seam metal roofing system with concealed fasteners, striated. _ "D" style perimeter metal edge at all rakes and eaves_ Includes continuous vented ridge metal cap. Five year labor guarantee from roofing subcontractor_ 25. Guaranteed Maximum Price based on all cost savings returned to owner. Construction Management fee, General Conditions, Pre - construction fee and bonds and insurance costs will be fixed at a minimum of that shown in proposal and will not be reduced as a result of decreased project costs. - BRATH, INC. JOB: ROUND ROCK SOCCER FACILITIES DATE: 8/12/21333 CODE DE6CI0P71071 Division 1 General Conditions 01000 58WERI11E146FNT 13.670 01000 FIELD ENGINEER 10,838 01000 RECD 0EF1GE 723 01000 SAFETY 0 925 01000 SMALL TOOLS 723 01000 ICO3WATER,CIRS 146 01000 TF1En10NEFAK 867 01000 STORAGE 434 01060 OAMTARY FACIUTNS 636 01000 WA61E CONTAINERS 1,160 01020 TEMP POWER 434 01000 ROMP WARE 1 145 0 PROJECT SIGN 293 01000 6460CA0051ti +11TS 201 01000 TFNP FENCING 1,000 01000 GENERAL GLEAM* 0 1,24 01000 AS BUILT DRAWINGS 0 60 01000 SCHEDULING 0 925 RAN REPR(MUCRON 600 0 84RVEY1N0 1,600 0 MREAGEFAUDWANcE 944 0 FINAL CLEANUP 261 0 4051140 ALLOWANCE BYOWNER7U1 0 POSTAGE 200 0 ACCESS ROADS NONE 0 Division 2 Site Construction 7E1 CONTR08. NONE 02200 EARTHWORK 10,630 STABILIZED CON5T. ENTRANCE 800 SILT FENCE 1.600 ROCK BERM NONE TREE WD7E0880 NONE WATER QUALITY POND NOME PAVEMENT MARIAMO NONE PIER DRILLING NONE CHAIN LINK FLAKING NONE 5000110 FORREVEGETAIION 1 1 7 OWNER 000 WAIVING 67 OWNER LAN00C0PINOMMIOAT1ON NONE TOPSOIL NONE Division 3 Concrete 03300 SIDEWALK 5' 3,238 0 03300 510EWALK 4BLNOING 2.024 0 03300 BLDG_ CONCRETE 11,041 0 03451 PRECAST CAP AT PLUMBING CHASE 662 0 03451 PRECAST CONCRETE 70U17ERS 3,700 0 Division 4 Masonry 04200 MASONRY 04200 CAST STONE COLUMN CAPS Division 5 Metais 05120 MSC STEELAVL BEAMS 3,700 0 05425 005NWNEERED METAL 1480590.5 NONE 0 Division 6 Wood & Plastics 06100 WOOD RODP DECK 00100 WOOD 105,5$05 06100 14AR01502847 k FASCIA 06100 HNDI FASCIA 06100 WOOD BLOCKING 0 FASLIA,CMU 151P Mum MSC WOOD BLOCONG,HARDI 100.4 Division 7 Thennal,Moist. Protect 07750 WATER REPELLENTS 07820 OALVAWME 1002 PANELS 07900 ■0448 SEALERS Division 8 Doors Si Windows 08110 STEEL DOORS AND FAMES 00905 AC2E56 DOORS -614 NE 00332 OVERHEAD CORING SHUTTERS 00710 INADWARE Division 9 Finishes DRYWALL Ac00514CAL EL 09500 PARTING Division 10 Specialties MSC. O 120 3 60 ABOVE 6,336 0 700 0 LABOR MATERIAL TOTAL 1214604 1.683 0 1.700 13,470 BRAIN 10,890 BRA111 723 MAIM 525 014711 723 50111 /AS BRA1H 867 68410 434 548810 690 05A114 1.156 9RA711 434 SRAM 146 BRATH 255 604711 208 GRATH 1.600 BRAlH 1,243 MEIN 491 014111 925 800114 600 /MATH 1,500 BRAIN 044 BRATH 289 &00184 0 00 OWNER 200 6488111 0 NONE O 0 NONE O 14,600 EMT O 8100 MATH O 1,900 LWATN O NONE O NONE O NONE O NONE O ROHE O NONE O 00NER O OWNER O 14014E 5 NONE O 3.229 6100TH O 3,024 MATH O 11,841 0041 O 602 ORA1H O 3,700 MATH 30,000 0 30.000 V067ET4R. 300 0 300 5488TH 3,700 996 s1E8 0 NONE O 1,072 2, 3.220 MATH 600 896 2,684 4,192 608TH 3,304 0 0 3.364 MATH 065 0 0 066 8488114 O 1,063 1.043 2.126 SWATH 2000 0 0 2,000 MATH WRAINTNG 0 0 SUNRISE PAINTING 7.650 0 7,850 FREEMAN 2.600 0 2.400 94A711 1,603 ORA1HAA/LL 50 5114110 6.386 AOC DOOR 2,000 16DELL NONE O 0 0 AMERICAN DRYWALL NONE 0 0 0 NONE NONE 0 0 0 50NE 3.140 0 0 5040 SUNRISE PAANRNG 06/12/2005 THU 17:49 FAX 512 388 2665 BRATH 10140 PLASTIC TOMEL COMPARNAENTS 10000 TOILET ACCESSORIES 10230 LOWERS 4 EA LOUVERS 12 e4 10410 9GNAGE 10823 FRE EXTINGUISHERS 2 EA Division 11 Equipment 11400 STAINLESS STEEL TABLE Division 15 Mechanical 11555 16000 PLUMBING 15002 511E WATER LINE FIRE SPRINKLER Division 16 Electrical 1(1000 ELECTRICAL SUBTOTAL TROLL 0 65.8X505. P*IOJECT MANAGEMENT PROJECT MCI AT nvnt S11B1OTAL NANNIANCE 4 6060N0 SALES TAX 825% MSC. CRY FEES SUBTOTAL 0ONE1111 NONE NONE 1.000 0 3.93 3.934 ORATH 500 0 2.307 2.007 BRAIN O e0 317 397 MOAT O 240 1530 1.770 MCKAY O 0 0 NONE O 20 160 110 0BA7N O 26 106 210 ABC REST SUPPLY O 0 0 NONE 21,000 0 0 21.000 MAN 8.000 0 0 0,000 LMH O 0 0 1105E 24.500 170,160 2.09 M0141145 CONTINGENCY GRIP O 24,600 MERCORY 31.756 10,311 216.230 05.314 9,090 1.007 237.737 7.443 EXEMPT BY OWNTN SUBTOTAL 246.200 CONOUICTO116 FEE 'PERCENT' 4.9676 12.197 307.330 5,147 262.484 ei 002 /ooz { 210.230 L 500*CKSUM» ADDENDUM NUMBER ONE TO STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR AND ADDENDUM TO GENERAL CONDITIONS THIS ADDENDUM TO STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR AND ADDENDUM TO GENERAL CONDITIONS ( "Addendum ") shall (i) amend certain provisions of the Standard Form of Agreement between Owner and Contractor to which this Addendum is affixed (the "Standard Form "), and (ii) amend, supplement, modify, delete and replace by substitution the indicated provisions of the General Conditions. If the numerical section referenced below is not one contained in the General Conditions, then such text shall be added as a new section. If the numerical section referenced below is one for which there is a counterpart section referenced in the General Conditions, then the referenced text shall be deemed added to the referenced section in the General Conditions, unless otherwise indicated below. Wherever the terms hereof are inconsistent with the General Conditions, the terms hereof shall be controlling. ARTICLE 8 INSURANCE ADDENDUM TO STANDARD FORM OF AGREEMENT 8.1.1 Contractor shall, at its sole expense, maintain in effect at all times during the full term of its Work under the Contract Documents, and as otherwise required under the Contract Documents, insurance coverages with limits not less than those set forth below in the Schedule of Insurance Coverages, with insurers licensed to do business in the State of Texas and acceptable to Owner and under forms of policies satisfactory to Owner. None of the requirements contained herein as to types, limits, or Owner's approval of insurance coverage to be maintained by Contractor is intended to and shall not in any manner limit, qualify or quantify the liabilities and obligations assumed by Contractor under the Contract Documents or otherwise provided by law. In the event of any failure by Contractor to comply with the provisions of this Article 11, Owner may, without in any way compromising or waiving any right or remedy at law or in equity, on notice to Contractor, purchase such insurance, at Contractor's expense, provided that Owner shall have no obligation to do so and if Owner shall do so, Contractor shall not be relieved of or excused from the obligation to obtain and maintain such insurance amounts and coverages. 8.2 SCHEDULE OF INSURANCE COVERAGES Coverage Minimum Amounts and Limits 8.2.1 Worker's Compensation Worker's Compensation Statutory Limits Employer's Liability $500,000 The policy shall include a Waiver of Subrogation in favor of the Indemnitees (as defined in the Contract Documents). 8.2.2 Commercial General Liability Bodily Injury/ Property Damage (Occurrence Basis) 1 $1,000,000 each occurrence, or equivalent, subject to a $1,000,000 aggregate applicable to the Project 8.2.5 Deleted This policy shall be on a form acceptable to Owner, endorsed to include the Indemnitees as additional insureds, contain cross- liability and severability of interest endorsements, state that this insurance is primary insurance as regards any other insurance carried by the Indemnitees, and shall include the following coverages: .1 Premises/Operations .2 Independent Contractors .3 Completed Operations for a period of two (2) years following the acceptance of Contractor's Work .4 Broad Form Contractual Liability specifically in support of, but not Limited to, the Indemnity sections of the contract .5 Broad Form Property Damage .6 Personal Injury Liability with employee and contractual exclusions removed .7 Delete Exclusions relative to Collapse, Explosion and Underground Property Damage Hazards 8.2.3 Comprehensive Automobile Liability .1 Bodily Injury $250,000 per person $500,000 per occurrence .2 Property Damage $100,000 per occurrence, or equivalent This policy shall be on a standard form written to cover all owned, hired and non -owned automobiles. The policy shall be endorsed to include the Indemnitees as additional insureds, contain cross- liability and severability of interest endorsements, and state that this insurance is primary insurance as regards any other insurance carried by the Indemnitees. 8.2.4 Umbrella Excess Liability Insurance .1 Bodily Injury/ $2,000,000 per occurrence .2 Property Damage $2,000,000 aggregate (Occurrence Basis) This policy shall be written on an umbrella excess basis above coverages as described herein, endorsed to include the Indemnitees as additional insureds, contain cross- liability and severability of interest endorsements, and state that this insurance is primary insurance as regards any other insurance carried by the Indemnitees. In addition, the policy shall be endorsed to provide defense coverage obligations. 8.2.6 Performance Bond and Labor and Material Payment Bond .1 If requested by Owner, Contractor shall obtain, and shall require each Subcontractor designated by Owner to obtain, a Performance Bond and Labor and Material Payment bond in the amount of 100% of the Contract Sum in the case of Contractor, and 100% of the applicable contract 2 amount for designated Subcontractor. Contractor shall deliver the executed originals and two (2) executed copies of each of its required bonds to Owner not later than the date of execution of the Agreement and deliver the executed originals and two (2) executed copies of each of the required Subcontractor bonds to Owner not later than the date of execution of the Subcontractor bond with any such Subcontractor. .2 The bonds shall in all respects conform to the requirements of the laws of the State of Texas. 8.3 BUILDER'S RISK INSURANCE Contractor shall maintain, at its sole expense, all -risk builder's risk insurance as follows: 8.3.1 Contractor shall carry completed value form builder'srisk property insurance upon the entire Work for 100% of the frill replacement cost value thereof (100% includes additional costs of architectural and engineering services in the event of a loss). This policy shall include the interests of the Owner and the other Indemnitees, Contractor, and Subcontractors in the Work as named insureds, as their interests may appear, and shall be on an "All Risk" basis for physical loss or damage including, without limitation, fire, flood, earthquake, subsidence, hail, theft, vandalism and malicious mischief and shall include coverage for portions of the Work while it is stored off the site or is in transit. This policy shall provide, by endorsement or otherwise, that Contractor shall be solely responsible for the payment of all premiums under the policy, and that Owner and the other Indemnitees shall have no obligation for the payment thereof, notwithstanding that Owner and the other Indemnitees are named insureds under the policy. Any insured loss or claim of loss shall be adjusted by the Owner, and any settlement payments shall be made payable to the Owner as trustee for the insureds, as their interests may appear, subject to the requirements of any applicable mortgage clause. Upon the occurrence of an insured loss or claim of loss, monies received will be held by Owner who shall make distribution in accordance with an agreementto be reached in such event between Owner and Contractor. If the parties are unable to agree between themselves on the settlement of the loss, such dispute shall be submitted to a court ofcompetentjurisdiction to determine ownership of the disputed amounts but the Work of the Project shall nevertheless progress during any such period of dispute without prejudice to the rights of any party to the dispute. The Contractor shall be responsible for any loss within the deductible area of the policy. 8.4 CONTRACTOR'S EQUIPMENT POLICY 8.4.1 Any such insurance policy covering Contractor's or its Subcontractors' equipment against loss by physical damage shall include an endorsement waiving the insurer's right of subrogation against the Indemnitees. Such insurance shall be Contractor's and its Subcontractors' sole and complete means of recovery for any such loss. Should Contractor or its Subcontractors choose to self - insure this risk, it is expressly agreed that the Contractor and its Subcontractors hereby waive any claim for damage or loss to said equipment in favor of the Indemnitees. 8.5 EVIDENCE OF INSURANCE 8.5.1 Evidence of the insurance coverage required to be maintained by the Contractor under this Article 11, represented by Certificates of Insurance issued by the insurance carrier, 3 must be furnished to the Owner prior to Contractor starting Work. Certificates of Insurance shall specify the insured status mentioned above in this Article 11, as well as the waivers of subrogation. Such Certificates of Insurance shall state that Owner will be notified in writing thirty (30) days prior to cancellation, material change, or non - renewal of insurance. Contractor shall provide to Owner a certified copy of any and all applicable insurance policies upon request of Owner. Timely renewal certificates will be provided to Owner as the coverage renews. 8.6 SUBCONTRACTORS' INSURANCE 8.6.1 Insurance similar to that required of Contractor shall be provided by or on behalf of all Subcontractors to cover their operations performed under the Contract Documents. Contractor shall be held responsible for any modification in these insurance requirements as they apply to Subcontractors. Contractor shall maintain Certificates oflnsurance from all Subcontractors, enumerating among other things, the waivers in favor of, and insured status of the Indemnitees, as required herein, and make them available to Owner upon request. 8.6.2 The term "Subcontractor(s)" for the purposes of this Article 11 shall include subcontractors of any tier. 8.7 RELEASE AND WAIVER OF SUBROGATION 8.7.1 Contractor hereby releases, and shall cause its Subcontractors to release, Owner and the other Indemnitees from any and all claims or causes of action whatsoever which Contractor and/or its Subcontractors might otherwise possess resulting in or from or in any way connected with any loss covered or which should have been covered by insurance, including the deductible portion thereof, maintained and/or required to be maintained by Contractor and/or its Subcontractors pursuant to the Contract Documents, including without limitation, those arising out of the sole or concurrent negligence of Owner and the other Indemnitees. 8.8 INDEMNIFICATION 8.8.1 To the fullest extent permitted by applicable law, Contractor shall and does agree to indemnify, protect, defend and hold harmless the Owner, Owner's partners, affiliated companies of Owner and of any partner, Architect and their respective officers, directors, shareholders, employees and agents (collectively the "Indemnitees ") from and against all claims, damages, losses, liens, causes of action, suits, judgments, and expenses, including attorney fees, of any nature, kind or description of any person or entity, directly or indirectly arising out of, caused by, or resulting from (1) the Work performed hereunder, or any part thereof, (2) the Contract Documents, or (3) any act or omission of Contractor, any Subcontractor, anyone directly or indirectly employed by them, or anyone that they control or exercise control over, (collectively the "Liabilities "). The obligations of Contractor under this indemnification shall apply to liabilities even if such liabilities are caused in part by the negligence of any Indemnitee. Contractor shall promptly advise Owner in writing of any action, administrative or legal proceeding or investigation as to which this indemnification may apply, and Contractor, at Contractor's expense, shall assume on behalf of Owner (and the other Indemnitees) and conduct with due diligence and in good faith the defense thereof with counsel satisfactory to Owner; provided, however, that Owner shall have the right, at its option, to be represented therein by advisory counsel of its own selection and at its own expense. In the event of failure by the Contractor to fully perform in accordance with this indemnification 4 paragraph, Owner, at its option, and without relieving Contractor of its obligations hereunder, may so perform, but all costs and expenses so incurred by Owner in that event shall be reimbursed by Contractor to Owner, together with interest on the same from the date any such expense was paid by Owner until reimbursed by Contractor, at the rate of interest provided to be paid on judgments under the laws of the State of Texas. This indemnification shall not be limited to damages, compensation or benefits payable under insurance policies, workers' compensation acts, disability benefit acts or other employees' benefit acts. 8.8.2 It is understood and agreed that Subparagraph 11.8 above is subject to, and expressly limited by, the terms and conditions of TEX. CIV. PRACT. & REM. CODE ANN. § 130.001- 130.005 (Vernon Supp. 1989), as amended. Contractor shall not be obligated under Subparagraph 9.12 to indemnify or hold harmless Architect or an agent, servant, or employee of Architect from liability or damage that: .1 is caused by or results from: (A) defects in plans, designs, or specifications prepared, approved, or used by the Architect; or (B) negligence of the Architect in the rendition or conduct of professional duties called for or arising out of the Contract Documents and the plans, designs or specifications that are a part of the Contract Documents; and .2 arises from: (A) personal injury or death; (B) property injury, or (c) any other expense that arises from personal injury, death or property injury. 8.8.3 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 this Paragraph 9.12, 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. 8.9 CLAIMS MADE POLICIES 8.9.1 With respect to any of the insurance policies provided by Contractor pursuant to the Contract Documents which are "claims made" policies, in the event at any time any such policies are canceled or not renewed, Contractor shall provide a substitute insurance policy(ies) with terms and conditions and in amounts which comply with the terms of the Contract Documents and which provide for retroactive coverage to the date of cancellation or non - renewal to fill any gaps in coverage which may exist due to the cancellation or non - renewal of the prior "claims made "policies. With respect to all "claims made" policies which are renewed, Contractor shall provide coverage retroactive to the date of commencement of the Work in said renewed policy. All said substitute or renewed "claims made" policies shall be maintained in full force and effect for the longer of (i) two years from the date of completion of the work or (ii) as otherwise required by the Contract Documents. A certificate evidencing continuation of such policies shall be submitted with the final Application for Payment as required by Subparagraph 9.10.2. Nothing herein shall affect the continuing effect of the indemnity clauses in the Contract Documents. 5 Article Page Number & Title " Number 13. TESTS AND INSPECTIONS; AND CORRECTION OR REMOVAL OF DEFECTIVE WORK 23 14. PAYMENTS TO CONTRACTOR AND COMPLETION 25 15. SUSPENSION OF WORK AND TERMINATION 29 16. DISPUTE RESOLUTION 30 17. MISCELLANEOUS 31 Bidding Requirements, Contract Forms & Conditions of the Contract General Conditions Section 00700 TABLE OF CONTENTS OF GENERAL CONDITIONS 1. DEFINITIONS 2 2. PRELIMINARY MATTERS 4 3. CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE 6 4. AVAILABILITY OF LANDS; SUBSURFACE AND PHYSICAL CONDITIONS; REFERENCE POINTS 6 5. BONDS AND INSURANCE 8 6. CONTRACTOR'S RESPONSIBILITIES 10 7. OTHER WORK. 16 8. OWNER'S RESPONSIBILITIES 17 9. ENGINEERIARCHITECT'S STATUS DURING CONSTRUCTION 18 10. CHANGES IN THE WORK 19 11. CHANGE OF CONTRACT AMOUNT 20 12. CHANGE OF CONTRACT TIMES 22 00700 05/27103 00009166 Page 1 General Conditions GENERAL CONDITIONS ARTICLE 1 - DEFINITIONS Whenever used in these General Conditions or in the other Contract Documents the following terms have the meanings indicated which are applicable to both the singular and plural thereof: 1.1 Addenda - Written or graphic instruments issued prior to the receipt of Proposals or the opening of Bids that clarify, correct or change the proposal or bidding requirements or the Contract Documents. 1.2 Agreement - Prescribed form, referenced as Section 00500. 1.3 Alternative Dispute Resolution - The process by which a disputed Claim may be settled if the OWNER and the CONTRACTOR cannot reach an agreement between themselves, as an alternative to litigation. 1.4 Bid - Proposal of bidder on prescribed forms setting forth prices for performing the Work described in the Contract Documents. 1.5 Bid Documents - The advertisement or invitation for bids, instructions to bidders, the bid form, the Contract Documents and Addenda. 1.6 Calendar Day - Any day of the week; no days being excepted. Work on Saturdays, Sundays, and/or Legal Holidays shall only be conducted with prior express written consent of the OWNER 1.7 Change Directive - A written directive to the CONTRACTOR, signed by the OWNER, ordering a change in the Work and stating a proposed basis for adjustment, if any, in the Contract Amount or Contract Time, or both. A Change Directive may be used in the absence of total agreement on the terms of a Change Order. A Change Directive does not change the Contract Amount or Contract Time, but is evidence that the parties expect that the change directed or documented by a Change Directive will be incorporated in a subsequently issued Change Order. 1.8 Change Orders - Written agreements entered into between the CONTRACTOR and the OWNER authorizing an addition, deletion, or revision to the Contract, issued on or after the Execution Date of the Agreement and within the Contract term. 1.9 Claim - A written demand seeking, as a matter of right, adjustment or interpretation of Contract terms, payment of money, extension of time or other relief with respect to the terms of the Contract. 1.10 Contract - The Contract represents the entire and integrated agreement between the OWNER and the CONTRACTOR for performance of the Work, as evidenced by the Contract Documents. 1.11 Contract Amount - The amount payable by the OWNER to the CONTRACTOR for completion of the Work in accordance with the Contract Documents. 1.12 Contract Documents - Project Manual, Drawings, Addenda and Change Orders. 1.13 Contract Time - The number of days allowed for completion of the Work as defined by the Contract. When any period is referred to in days, it will be computed to exclude the first and include the last day of such period. A day of twenty-four (24) hours measured from midnight to the next midnight will constitute a day. 1.14 CONTRACTOR - The individual, firm, corporation, or other business entity with whom the OWNER has entered into the Contract 1.15 Drawings - Those portions of the Contract Documents which are graphic representations of the scope, extent and character of the Work to be fumished and performed by the CONTRACTOR and which have been approved by the OWNER. Drawings may include plans, elevations, sections, details, schedules and diagrams. Shop Drawings are not Drawings as so defined. 1.16 Engineer /Architect (EJA) - The OWNER's design professional identified as such in the Contract. The titles of "Architect/Engineer," "Architect" and "Engineer" used in the Contract Documents shall be read the same as Engineer /Architect (EJA). Nothing contained in the Contract Documents shall create any contractual or agency relationship between EJA and the CONTRACTOR. 1.17 Equal - The terms "equal" or "approved equal" shall have the same meaning. 1.18 Execution Date - Date of last signature of the parties to the Agreement. 1.19 Field Order - A written order issued by Owner's Representative which orders minor changes 00700 05/27/03 Page 2 General Conditions in the Work and which does not involve a change in the Contract Amount or the Contract Time. 1.20 Final Acceptance — The stage in the Contract process when, in the OWNER's opinion, Final Completion of the Work has been attained and a Certificate of Acceptance approved by the OWNER is issued. 1.21 Final Completion - The stage in the progress of the Work when, in the OWNER's opinion, the entire Work has been completed, the CONTRACTOR's obligations under the Contract Documents have been fulfilled, and the OWNER is processing or has made final payment to the CONTRACTOR, as evidenced by a Certificate of Acceptance approved by the OWNER. 1.22 Inspector - The authorized representative of any regulatory agency that has jurisdiction over any portion of the Work. 1.23 Legal Holidays 1.23.1 The following are recognized by the OWNER Holiday New Year's Day Martin Luther King, Jr.'s Birthday President's Day Memorial Day Independence Day Labor Day Veteran's Day Thanksgiving Day Friday after Thanksgiving Christmas Eve Christmas Day Date Observed January 1 Third Monday in January Third Monday in February Last Monday in May July 4 First Monday in September November 11 Fourth Thursday in November Friday after Thanksgiving December 24 December 25 1.23.2 If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, it will be observed on the following Monday. 1.23.3 If Christmas Eve falls on a Saturday or a Sunday, the preceding Friday is observed as the Christmas Eve holiday. 1.23.4 If Christmas Day falls on a Saturday or a Sunday, the following Monday is observed as the Christmas Day holiday. 1.24 Milestones - A significant event specified in the Contract Documents relating to an intermediate completion date or time prior to Substantial Completion of all the Work. 1.25 Notice to Proceed - A Written Notice given by the OWNER to the CONTRACTOR fixing the date on which the Contract Times will commence to run and on which the CONTRACTOR shall start to perform the CONTRACTOR's obligations under the Contract Documents. 1.26 OWNER — The City of Round Rock, Texas, a municipal corporation, home -rule city and political subdivision organized and existing under the laws of the State of Texas, acting through the City Manager or his/her designee, officers, agents or employees to administer design and construction of the Project. 1.27 Owner's Representative - The designated representative of the OWNER. 1.28 Partial Occupancy or Use - Use by the OWNER of a substantially completed part of the Work for the purpose for which it is intended (or a related purpose) prior to Substantial Completion of all the Work, provided the OWNER and the CONTRACTOR have accepted in writing the responsibilities assigned to each of them for payments, retainage if any, security, maintenance, utilities, corrective work, insurance and warranties. 1.29 Project - The total construction of which the Work to be provided under the Contract Documents may be the whole, or a part, as indicated elsewhere in the Contract Documents. 1.30 Project Manual - That portion of the Contract Documents which may include the following: introductory information; bidding requirements, Contract forms and General and Supplemental General Conditions; General Requirements; Specifications; Drawings; Project Safety Manual; and Addenda. 1.31 Proposal — Proposal of Offeror, under Local Government Code §271.113 providing for alternative 00700 05/27/03 Page 3 General Conditions project delivery methods, on prescribed forms setting forth prices for performing the Work described in the Contract Documents. 1.32 Proposal Documents — The advertisement or invitation for Proposals, Instruction to Offerors, the Proposal form, the Contract Documents and Addenda. 1.33 Resident Project Representative - The authorized representative of E/A who may be assigned to the site or any part thereof. 1.34 Shop Drawings - All drawings, diagrams, illustrations, schedules and other data or information which are specifically prepared or assembled by or for the CONTRACTOR and submitted by the CONTRACTOR as required by the Contract Documents. 1.35 Specifications - Those portions of the Contract Documents consisting of written technical descriptions as applied to the Work, which set forth to the CONTRACTOR, in detail, the requirements which must be met by all materials, equipment, construction systems, standards, workmanship, equipment and services in order to render a completed and useful project. 1.36 Substantial Completion - The stage in the progress of the Work when the Work, or designated portions thereof, may still require minor modifications or adjustments but, in the OWNER's opinion, is sufficiently complete in accordance with the Contract Documents so that the OWNER can occupy or utilize the Work for its intended use, as evidenced by a Certificate of Substantial Completion approved by the OWNER. 1.37 Subcontractor - An individual, firm, or corporation having a direct contract with the CONTRACTOR for the performance of a part of the Work. 1.38 Sub - subcontractor - A person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the Work. 1.39 Superintendent - The representative of the CONTRACTOR authorized in writing to receive and fulfill instructions from Owner's Representative, and who shall supervise and direct construction of the Work. 1.40 Supplemental General Conditions - The part of the Contract Documents which amends or supplements the General Conditions. All General Conditions which are not so amended or so supplemented shall be considered as remaining in full force and effect. 1.41 Supplier - An individual or entity having a direct contract with the CONTRACTOR or with any Subcontractor to furnish materials or equipment to be incorporated in the Work by the CONTRACTOR or any Subcontractor. 1.42 Time Extension Request - An approved request for time extension on a form acceptable to the OWNER. 1.43 Work - The entire completed construction, or the various separately identifiable parts thereof, required to be furnished under the Contract Documents. 1.44 Working Day - Any day of the week, not including Saturdays, Sundays, or Legal Holidays, in which conditions not under the CONTRACTOR's control will permit work for at least seven (7) hours of the Working Times. Upon authorization by the Owner's Representative, work on Saturdays, Sundays and/or Legal Holidays may be allowed and a Working Day will be counted for each such day. 1.45 Working Times — Times of day(s) during which work may be performed. Unless authorized by Owner's Representative, all Work shall be performed between 7:00 a.m. and 6:00 p.m. on weekdays and, if previously authorized as provided for in paragraph 1.44 or paragraph 1.6 herein, as applicable, between 9:00 a.m. and 6:00 p.m. on Saturdays, Sundays or Legal Holidays. When the CONTRACTOR has been authorized to perform Work during hours outside Working Times, such hours shall be considered time worked on Working Day contracts. Notwithstanding the preceding, emergency work may be done without prior permission only as provided in paragraph 6.11.5 herein. 1.46 Written Notice - Written communication between the OWNER and the CONTRACTOR. Written Notice shall be deemed to have been duly served if delivered in person to Owner's Representative or the CONTRACTOR's duly authorized representative, or if delivered to or sent by registered or certified mail to the attention of Owner's Representative or the CONTRACTOR's duly authorized representative at the last business address known to the party giving notice. ARTICLE 2 - PRELIMINARY MATTERS 2.1 Delivery of Agreement, Bonds, Insurance, and Other Documentation: 00700 05/27/03 Page 4 General Conditions Within ten (10) Calendar Days after written notification of award of Contract, the CONTRACTOR shall deliver to the OWNER signed Agreement, Bond(s), Insurance Certificate(s) and other documentation required for execution of the Contract. 2.2 Copies of Documents: The OWNER shall furnish to the CONTRACTOR two (2) copies of the Contract Documents unless otherwise specified. Additional copies will be furnished, upon request, at the cost specified in the Supplemental General Conditions. 2.3 Commencement of Contract Times; Notice to Proceed: The Contract Time(s) will begin to run on the day indicated in the Notice to Proceed. Notice to Proceed will be given at any time within sixty (60) Calendar Days after the Execution Date of the Agreement, unless extended by written agreement of the parties. 2.4 Before Starting Construction: 2.4.1 No Work shall be done at the site prior to the preconstruction conference without the OWNER's approval. Before undertaking each part of the Work, the CONTRACTOR shall carefully study and compare the Contract Documents and check and verify pertinent figures shown thereon and all applicable field measurements. The CONTRACTOR shall promptly report in writing to Owner's Representative any conflict, error, ambiguity or discrepancy which the CONTRACTOR may discover and shall obtain a written interpretation or clarification from Owner's Representative before proceeding with any Work affected thereby. The CONTRACTOR shall be liable to the OWNER for failure to report any conflict, error, ambiguity or discrepancy in the Contract Documents of which the CONTRACTOR knew or reasonably should have known. 2.4.2 The CONTRACTOR shall submit the following to Owner's Representative for review and approval no later than the preconstruction conference: .1 a preliminary progress schedule indicating the times (number of days or dates) for starting and completing the various stages of the Work, including any Milestones specified in the Contract Documents, identifying when all Subcontractors will be utilized, and taking into consideration any limitations on Working Hours; .2 a preliminary schedule of Shop Drawing and sample submittals; .3 a preliminary schedule of values for all of the Work, subdivided into component parts in sufficient detail to serve as the basis for progress payments during construction. Such prices will include an appropriate amount of overhead and profit applicable to each item of Work; .4 a letter designating CONTRACTOR'S Superintendent; .5 a letter from the CONTRACTOR and Subcontractor(s) listing any salaried specialists; .6 if applicable, a letter designating the "Competent Person(s)" on general safety and trench safety measures; .7 if applicable, a trench safety system plan; .8 if applicable, a plan illustrating proposed locations of temporary facilities; .9 if applicable, a traffic control plan; .10 a completed Non -Use of Asbestos Affidavit (Prior to Construction); and .11 if applicable, a letter designating the Texas Registered Professional Land Surveyor for layout of the Work. 2.5 Preconstruction Conference: Prior to commencement of Work at the site, a preconstruction conference attended by the CONTRACTOR, Owner's Representative and others will be held. 2.6 Initially Acceptable Schedules: Unless otherwise provided in the Contract Documents, the CONTRACTOR shall obtain approval of Owner's Representative on final versions of the schedules submitted in accordance with paragraph 2.4.2 before the first progress payment will be made to the CONTRACTOR The progress schedule must provide for an orderly progression of the Work to completion within any specified 00700 05/27/03 Page 5 General Conditions Milestones and Contract Times. Acceptance of the schedule by Owner's Representative will neither impose on Owner's Representative responsibility for the sequencing, scheduling or progress of the Work nor interfere with or relieve the CONTRACTOR from the CONTRACTOR's full responsibility therefor. The CONTRACTOR's schedule of Shop Drawings and sample submissions must provide an arrangement agreeable to the parties for reviewing and processing the required submittals. ARTICLE 3 - CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE 3.1 Intent: 3.1.1 The intent of the Contract Documents is to include all information necessary for the proper execution and completion of the Work by the CONTRACTOR. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all; performance by the CONTRACTOR shall be required to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the intended results. 3.1.2 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. 3.2 Reporting and Resolving Discrepancies: If, during the performance of the Work, the CONTRACTOR discovers any conflict, error, ambiguity or' discrepancy within the Contract Documents or between the Contract Documents and any provisions of any such law or regulation applicable to the performance of the Work or of any such standard. specification, manual or code or instructions of any Supplier, the CONTRACTOR shall immediately report it to Owner's Representative in writing, and the CONTRACTOR shall not proceed with the Work affected thereby until an amendment or supplement to the Contract Documents has been issued by one of the methods indicated in paragraph 3.3.1 or paragraph 3.3.2. The CONTRACTOR shall be liable to the OWNER for failure to report any such conflict, error, ambiguity or discrepancy of which the CONTRACTOR knew or reasonably should have known. 3.3 Amending and Supplementing Contract Documents: 3.3.1 The Contract Documents may be amended to provide for additions. deletions and revisions in the Work or to modify the terms and conditions thereof in one or more of the following ways: .1 Change Order. .2 Change Directive. .3 Time Extension Request. 3.3.2 In addition, the requirements of the Contract Documents may be supplemented, and minor variations and deviations in the Work may be authorized, in one or more of the following ways: .1 Field Order_ .2 Review of a Shop Drawing or sample. .3 Written interpretation or clarification. 3.4 Reuse of Documents Prohibited: The CONTRACTOR and any Subcontractor or Supplier or other person or organization performing or furnishing any of the Work under a direct or indirect contract with the OWNER: (i) shall not have or acquire any title to or ownership rights in any of the Drawings, Specifications or other documents (or copies of any thereof) prepared by or bearing the seal of E/A or E/A's consultants, and (ii) shall not reuse any of such Drawings, Specifications, other documents or copies on extensions of the Project or any other project without written consent of the OWNER and E/A. ARTICLE 4 - AVAILABILITY OF LANDS; SUBSURFACE AND PHYSICAL CONDITIONS; REFERENCE POINTS 4.1 Availability of Lands: The OWNER shall furnish, as indicated in the Contract Documents, all required rights to use the lands upon which the Work is to be performed, rights -of -way and easements for access thereto, and such other lands which are designated for the use of the CONTRACTOR_ The OWNER shall identify any encumbrances or restrictions not of general application but specifically related to use of lands so furnished with which the CONTRACTOR will have to comply in performing the Work Easements for permanent structures or permanent changes in existing facilities will be obtained and paid for by the OWNER, unless otherwise provided in the Contract 00700 05/27/03 Page 6 General Conditions Documents. If the OWNER fails to furnish these lands, rights-of-way or easements in a timely manner, the CONTRACTOR may make a Claim for adjustments in the Contract Times. The CONTRACTOR shall provide for all additional lands and access thereto that may be required for temporary construction facilities or storage of materials and equipment. 4.2 Subsurface and Physical Conditions: 4.2.1 The CONTRACTOR hereby covenants that it has examined the site of the proposed Work and is familiar with all of the conditions surrounding construction of the Project, having conducted all inquiries, tests and investigations deemed necessary and proper. 4.2.2 If conditions are encountered at the site which are (1) subsurface or otherwise concealed physical conditions that differ materially from those indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature, that differ materially from those normally encountered in the type of work being performed under this Contract, then notice by the observing party shall be given to the other parry promptly before conditions are disturbed and in no event later than seven (7) calendar days after first observance of the conditions. Owner's Representative will promptly investigate such conditions with E/A and, if they differ materially and cause an increase or decrease in the CONTRACTOR's cost of, or time required for, performance of any part of the Work, will recommend an equitable adjustment in the Contract Amount or Contract Time, or both. If Owner's Representative determines that the conditions at the site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified, the CONTRACTOR shall be notified in writing, stating the reasons. Any disputes arising from Owners Representative's determination shall be resolved in accordance with Article 16. 4.2.3 Notwithstanding any other provision of this Contract, the CONTRACTOR shall be solely responsible for the location and protection of any and all public lines and utility customer service lines in the Work area_ For the purposes of this section, 'public lines" means the utility distribution and supply system within public rights-of-way or easements, and "utility customer service lines" (service) means any utility line connecting a utility customer to the utility distribution system. Generally, existing service connections within right-of-way or easements are not shown on the Drawings. The CONTRACTOR shall notify the OWNER and One CaIF and exercise due care to locate and to mark, uncover or otherwise protect all such lines in the construction zone and any of the CONTRACTOR's work or storage areas. The CONTRACTOR's obligation hereunder shall be primary and nondelegable. The CONTRACTOR shall indemnify or reimburse such expenses or costs (including fines that may be levied against the OWNER) that may result from unauthorized or accidental damage to all public lines and utility customer service lines in the Work area. The OWNER reserves the right to repair such damage the CONTRACTOR may cause, at the CONTRACTOR's expense. 4.3 Reference Points: 4.2.4 The CONTRACTOR shall take reasonable precaution to avoid disturbing primitive records and antiquities of archaeological, paleontological or historical significance. No objects of this nature shall be disturbed without written permission of the OWNER and the Texas Department of Antiquities Protection. When such objects are uncovered unexpectedly, the CONTRACTOR shall stop all Work in close proximity and notify Owner's Representative and the Texas Department of Antiquities Protection of their presence and shall not disturb them until written permission and permit to do so is granted. All primitive rights and antiquities uncovered on the OWNER's properly shall remain property of the State of Texas, the Texas Department of Antiquities Protection conforming to the Texas Natural Resources Code. if it is determined by the OWNER, in consultation with the Texas Department of Antiquities Protection, that exploration or excavation of primitive records or antiquities on Project site is necessary to avoid loss, the CONTRACTOR shall cooperate in salvage work attendant to preservation. If the Work stoppage or salvage work causes an increase in the CONTRACTOR's cost of, or time required for, performance of the Work, the Contract Amount and /or Contract Time may be equitably adjusted. Unless otherwise specified, the OWNER will fumish all reference points, benchmarks, survey monuments, and control points which, in the OWNER's opinion, are suitable for laying out the Work. Such benchmarks and reference points will be placed at intervals not to exceed 1,500 feet. All reference points, benchmarks, survey monuments and control points shall be carefully preserved by the CONTRACTOR by use of fags, laths or other appropriate measures and, in case of destruction or removal by the CONTRACTOR or its employees, such reference points, benchmarks, survey monuments, and control points shall be replaced by a Registered Professional Land Surveyor at the CONTRACTOR's expense. When 00700 05/27103 Page 7 General Conditions reference points, benchmarks, survey monuments, or control points are in conflict with the Work, then reestablishment will be the OWNER's responsibility during or upon completion of the Work. 4.4 Hazardous Materials: 4.4.1 The OWNER shall be responsible for any hazardous material uncovered or revealed at the site which was not shown, indicated or identified in the Contract Documents to be within the scope of the Work and which may present a substantial danger to persons or property exposed thereto in connection with the Work at the site. The CONTRACTOR shall immediately notify Owner's Representative of any suspected hazardous materials encountered before or during performance of the Work and shall take all necessary precautions to avoid further disturbance of the materials. 4.4.2 The CONTRACTOR shall be responsible for any hazardous materials brought to the site by the CONTRACTOR, Subcontractor, Suppliers or anyone else for whom the CONTRACTOR is responsible. 4.4.3 No asbestos- containing materials shall be incorporated into the Work or brought on the Project site without prior approval of the OWNER. ARTICLE 5 - BONDS AND INSURANCE 5.1 Surety and Insurance Companies: All bonds and insurance required by the Contract Documents shall be obtained from solvent surety or insurance companies that are duly licensed by the State of Texas and authorized to issue bonds or insurance policies for the limits and coverages required by the Contract Documents. The bonds shall be in a form acceptable to the OWNER and shall be issued by a surety which complies with the requirements of Art. 7.19 -1, Texas Insurance Code (1997) and which is otherwise acceptable to the OWNER. 5.2 Workers Compensation Insurance Coverage: 5.2.1 Definitions: .1 Certificate of coverage ("certificate") - A copy of a certificate of insurance, a certificate of authority to self-insure issued by the commission, or a coverage agreement showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on the Project, for the duration of the Project. .2 Duration of the Project - includes the time from the beginning of the Work on the Project until the CONTRACTOR's/ person's Work on the Project has been completed and accepted by the OWNER. .3 Persons providing services on the Project ( "subcontractor" herein) - includes all persons or entities performing all or part of the services the CONTRACTOR has undertaken to perform on the Project, regardless of whether that person contracted directly with the CONTRACTOR and regardless of whether that person has employees. This includes, by way of illustration and not of limitation, independent contractors, Subcontractors, leasing companies, motor carriers, owner- operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the Project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the Project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. 5.2.2 The CONTRACTOR shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the CONTRACTOR providing services on the Project, for the duration of the Project. 5.2.3 The OWNER will not execute the Contract prior to the CONTRACTOR providing all required certificates of coverage. 5.2.4 If the coverage period shown on the CONTRACTOR's current certificate of coverage ends during the duration of the Project, the CONTRACTOR must, prior to the end of the coverage period, file a new certificate of coverage with the OWNER showing that coverage has been extended. 00700 05/27/03 Page 8 General Conditions 5.2.5 The CONTRACTOR shall obtain from each person providing services on the Project, and provide to the OWNER: .1 a certificate of coverage, prior to that person beginning Work on the Project. so the OWNER will have on file certificates of coverage showing coverage for all persons providing services on the Project; and .2 no later than seven (7) days after receipt by the CONTRACTOR, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the Project. 5.2.6 The CONTRACTOR shall retain all required certificates of coverage for the duration of the Project and for one (1) year thereafter. 5.2.7 The CONTRACTOR shall notify the OWNER in writing by certified mail or personal delivery within ten (10) days after the CONTRACTOR knew or should have known of any change that materially affects the provision of coverage of any person providing services on the Project_ 5.2.8 The CONTRACTOR shall post at its office or on each Project site a notice, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, informing all persons providing services on the Project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. 5.2.9 The CONTRACTOR shall contractually require each person with whom it contracts to provide services on a Project to: - .1 provide coverage, based on proper reporting of classification codes and payroll amounts and fling of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the Project, for the duration of the Project; .2 provide to the CONTRACTOR, prior to that person beginning Work on the Project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the Project, for the duration of the Project; .3 provide the CONTRACTOR, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the Project; .4 obtain from each other person with whom it contracts, and provide to the CONTRACTOR: a) a certificate of coverage, prior to the other person beginning Work on the Project; and b) a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the Project; .5 retain all required certificates of coverage on file for the duration of the Project and for one (1) year thereafter, .6 notify the OWNER in writing by certified mail or personal delivery within ten (10) days after the person knew or should have known of any change that materially affects the provision of coverage of any person providing services on the Project; and .7 contractually require each person with whom it contracts, to perform as required by paragraphs 5.2.9.1 - 5.2.9.7, with the certificates of coverage to be provided to the person for whom they are providing services_ 5.2.10 By signing this Contract or providing or causing to be provided a certificate of coverage, the CONTRACTOR is representing to the OWNER that all employees of the CONTRACTOR who will provide services on the Project will be covered by workers' compensation coverage for the duration of the Project, that the coverage well be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self - insured, with the commission's Division of Self- Insurance Regulation_ Providing false or misleading information may subject the CONTRACTOR to administrative penalties, criminal penalties. civil penalties, or other civil actions. 00700 05/27/03 Page 9 General Conditions 5.2.11 The CONTRACTOR's failure to comply with any of these provisions is a breath of Contract by the CONTRACTOR which entitles the OWNER to declare the Contract void if the CONTRACTOR does not remedy the breath within ten (10) days after receipt of notice of breach from the OWNER. 5.3 Other Bond and Insurance Requirements: For specific bond requirements and additional insurance requirements, refer to the Supplemental General Conditions. ARTICLE 6 - CONTRACTOR'S RESPONSIBILITIES 6.1 Supervision and Superintendence: 6.1.1 The CONTRACTOR shall supervise, inspect and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. Unless otherwise directed by the OWNER in the Contract Documents, the CONTRACTOR shall be solely responsible for the means, methods, techniques. sequences and procedures of construction. The CONTRACTOR shall be responsible to see that the completed Work complies accurately with the Contract Documents. 6.1.2 The CONTRACTOR shall have an English - speaking, competent Superintendent on the Work at all times that work is in progress. Upon request of Owner's Representative, the CONTRACTOR shall present the resume of the proposed Superintendent to Owners Representative showing evidence of experience and successful superintendence and direction of work of a similar scale and complexity. If, in the opinion of Owner's Representative, the proposed Superintendent does not indicate sufficient experience in line with the Work, he/she will not be allowed to be the designated Superintendent for the Work. The Superintendent shall not be replaced without Written Notice to Owner's Representative. If the CONTRACTOR deems it necessary to replace the Superintendent. the CONTRACTOR shall provide the necessary information for approval, as stated above, on the proposed new Superintendent. A qualified substitute Superintendent may be designated in the event that the designated Superintendent is temporarily away from the Work, but not to exceed a time limit acceptable to Owner's Representative. The CONTRACTOR shall replace the Superintendent upon the OWNER's request in the event the Superintendent is unable to perform to the OWNER's satisfaction. The Superintendent will be the CONTRACTOR's representative on the Work and shall have the authority to act on behalf of the CONTRACTOR. All communications given to the Superintendent shall be as binding as if given to the CONTRACTOR. Either the CONTRACTOR or the Superintendent shall provide an emergency and home telephone number at which one or the other may be reached if necessary when work is not in progress. 6.2 Labor, Materials and Equipment: 6.2.1 The CONTRACTOR agrees to employ only orderly and competent workers, skillful in performance of the type of Work required under this Contract. The CONTRACTOR, Subcontractors, Sub - subcontractors, and their employees may not use or posse's any firearms, alcoholic or other intoxicating beverages, illegal drugs or controlled substances while on the job or on the OWNER's property, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. If the OWNER or Owner's Representative notifies the CONTRACTOR that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the CONTRACTOR shall immediately remove such worker from performing Contract Work, and may not employ such worker again on Contract Work without the OWNER's prior written consent. The CONTRACTOR shall at all times maintain good discipline and order on or off the site in all matters pertaining to the Project. The CONTRACTOR shall pay workers no less than the wage rates established in Section 00830, and maintain weekly payroll reports as evidence thereof. 6.2.2 Unless otherwise specified, the CONTRACTOR shall provide and pay for all materials, equipment. labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities and all other facilities and incidentals necessary for the fumishing, performance, re- testing of defective work, start-up and completion of the Work. 6.2.3 All materials and equipment shall be of good quality and new (including new products made of recycled materials), except as otherwise provided in the Contract Documents. If required by Owner's Representative, the CONTRACTOR shall furnish satisfactory evidence (reports of required tests, manufacturer's certificates of compliance with material requirements, mill reports, etc.) as to the kind, quantity and quality of materials and 00700 05127/03 Page 10 General Conditions equipment. All materials and equipment shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with instructions of the applicable Supplier, except as otherwise provided in the Contract Documents. 6.2.4 Substitutes and "Approved Equar Items: 6.2.4.1 Whenever an item of material or equipment is specified or described in the Contract Documents by using the name of a proprietary item or the name of a particular Supplier, the specification or description is intended to establish the type, function and quality required. Unless the specification or description contains words reading that no like, equivalent or "approved equal" item or no substitution is permitted, other items of material or equipment of other Suppliers may be submitted to Owner's Representative under the following circumstances: .1 "Approved Equal ": If, in the OWNER's sole discretion, an item of material or an Rem of equipment proposed by the CONTRACTOR is functionally equal to that named and sufficiently similar so that no change in related Work will be required, it may be considered by the OWNER as an "approved equal" item, in which case review of the proposed item may, in the OWNER's sole discretion, be accomplished without compliance with some or all of the requirements for evaluation of proposed substitute items. The CONTRACTOR shall provide the OWNER with the documentation required for the OWNER to make its determination. .2 Stlbstitute Items: If, in the OWNER'S sole discretion, an item of material or an Rem of equipment proposed by the CONTRACTOR does not qualify as an "approved equal" item under paragraph 6.2.4.1.1, then R will be considered a proposed substitute item. The CONTRACTOR shall submit sufficient information to allow the OWNER to determine that the item of material or item of equipment proposed is essentially equivalent to that named and a substitute therefor. 6.2.4.2 Substitute Construction Methods and Procedures: If a specific means, method, technique, sequence or procedure of construction is shown or indicated in and expressly required by the Contract Documents, the CONTRACTOR may with prior approval of the OWNER furnish or utilize a substitute 00700 05/27/03 Page 11 means, method, technique, sequence, or procedure of construction. The CONTRACTOR shall submit sufficient information to Owner's Representative to allow the OWNER, in the OWNER's sole discretion, to determine that the substitute proposed is equivalent to that expressly called for by the Contract Documents. 6.2.4.3 OWNER's Evaluation: The OWNER will be allowed a reasonable time within which to evaluate each proposal or submittal made pursuant to paragraph 6.2.4.1.1 and paragraph 6.2.4.1.2. The OWNER will be the sole judge of acceptability. No "approved equal" or substitute shall be ordered, installed, or utilized until the OWNER's review is complete, which will be evidenced by either a Change Order or completion of the Shop Drawing review procedure. The OWNER may require the CONTRACTOR to fumish at the CONTRACTOR's expense a special performance guarantee or other surety bond with respect to any "approved equal" or substitute. The OWNER shall not be responsible for any delay due to review time for any "approved equal" or substitute. 6.2.4.4 CONTRACTOR's Expense: All data to be provided by the CONTRACTOR in support of any proposed "approved equal" or substitute item will be at the CONTRACTOR's expense. 6.2.5 The CONTRACTOR agrees to assign to the OWNER any rights it may have to bring antitrust suits against its Suppliers for overcharges on materials incorporated in the Project growing out of illegal price fixing agreements. The CONTRACTOR further agrees to cooperate with the OWNER should the OWNER wish to prosecute suits against Suppliers for illegal price fixing. 6.3 Progress Schedule: Unless otherwise directed, the CONTRACTOR shall adhere to the progress schedule established in accordance with paragraph 2.6 as R may be adjusted from time to time as provided below: .1 The CONTRACTOR shall submit to Owners Representative for acceptance proposed adjustments in the progress schedule that will not change the Contract Times or Milestones. Such adjustments will conform generally to the progress schedule then in effect . .2 Proposed adjustments in the progress schedule that will change the Contract Times or Milestones shall be submitted in accordance with the requirements of Article 12. Such adjustments may only General Conditions be made by a Change Order or Time Extension Request in accordance with Article 12. 6.4 Concerning Subcontractors, Suppliers and Others: 6.4.1 Assignment: The CONTRACTOR agrees to retain direct control of and give direct attention to the fulfillment of this Contract. The CONTRACTOR agrees not to, by Power of Attorney or otherwise, assign said Contract without the prior written consent of the OWNER. 6.4.2 Award of Subcontracts for Portions of the Work: The CONTRACTOR shall not employ any Subcontractor, Supplier or other person or organization, whether initially or as a substitute, against whom the OWNER may have reasonable objection. The CONTRACTOR must provide the OWNER with a list of all Subcontractors, Suppliers, or other persons or organizations it will use in the Work, and such list must be provided prior to the preconstruction conference_ Should the OWNER have objections, the OWNER will communicate such objections by Written Notice. If the OWNER requires a change without good cause of any Subcontractor, person or organization previously accepted by OWNER, the Contract Amount may be increased or decreased by the difference in the cost occasioned by any such change, and an appropriate Change Order shalt be issued. The CONTRACTOR shall not substitute any Subcontractor, person or organization that has been accepted by the OWNER, unless the substitute has been accepted in writing by the OWNER. No acceptance by the OWNER of any Subcontractor, Supplier or other person or organization shall constitute a waiver of any right of the OWNER to reject defective Work. 6.4.3 The CONTRACTOR shall enter into written agreements with all Subcontractors and Suppliers which specifically bind the Subcontractors or Suppliers to the applicable terms and conditions of the Contract Documents for the benefit of the OWNER and E/A. The OWNER reserves the right to specify that certain requirements shall be adhered to by all Subcontractors and Sub - subcontractors as indicated in other portions of the Contract Documents and these requirements shall be made a portion of the agreement between the CONTRACTOR and Subcontractor or Supplier. 6.4.4 The CONTRACTOR shall be fully responsible to the OWNER for all acts and omissions of the Subcontractors, Suppliers and other persons and organizations performing or furnishing any of the Work under a direct or indirect contract with the CONTRACTOR just as the CONTRACTOR is responsible for the CONTRACTOR's own acts and omissions. Nothing in the Contract Documents shall create for the benefit of any such Subcontractor, Supplier or other person or organization any contractual relationship between the OWNER and any such Subcontractor, Supplier or other person or organization, nor shall it create any obligation on the part of the OWNER or EJA to pay or to see 10 the payment of any amounts due any such Subcontractor, Supplier or other person or organization except as may otherwise be required by laws and regulations. 6.4.5 The CONTRACTOR shall be solely responsible for scheduling and coordinating the Work of Subcontractors, Suppliers and other persons and organizations performing or furnishing any of the Work'under a direct or indirect contract with the CONTRACTOR. The CONTRACTOR shall require all Subcontractors, Suppliers and such other persons and organizations performing or furnishing any of the Work to communicate with Owner's Representative through the CONTRACTOR. 6.4.6 The divisions and sections of the Specifications and the identifications of any Drawings shall not control the CONTRACTOR in dividing or delineating the Work to be performed by any specific trade. 6.4.7 The CONTRACTOR shall pay each Subcontractor and Supplier their appropriate share of payments made to the CONTRACTOR not later than ten (10) Calendar Days after the CONTRACTOR's receipt of payment from the OWNER. 6.5 Patent Fees and Royalties: 6.5.1 The CONTRACTOR shall be responsible at all times for compliance with applicable patents or copyrights encompassing in whole or in part, any design, device, material, or process utilized, directly or indirectly, in the performance of the Work or the formulation or presentation of its Bid. 6.5.2 The CONTRACTOR shall pay all royalties and license fees and shall provide, prior to commencement of Work hereunder and at all times during the performance of same, for lawful use of any design, device, material or process covered by letters, patent or copyright by suitable legal agreement with the patentee, copyright holder, or their duly authorized representative whether or not a particular design, device, material, or process is specified by the OWNER. 00700 05/27103 Page 12 General Conditions 6.5.3 The CONTRACTOR shall defend all suits or claims for infringement of any patent or copyright and shall save the OWNER harmless from any loss or liability, direct or indirect, arising with respect to the CONTRACTOR's process in the formulation of its bid or the performance of the Work or otherwise arising in connection therewith. The OWNER reserves the right to provide its own defense to any suit or claim of infringement of any patent or copyright in which event the CONTRACTOR shall indemnify and save harmless the OWNER from all costs and expenses of such defense as well as satisfaction of all judgments entered against the OWNER. 6.5.4 The OWNER shall have the right to stop the Work and /or terminate this Agreement at any time in the event the CONTRACTOR fails to disclose to the OWNER that the CONTRACTOR's work methodology includes the use of any infringing design, device, material or process. 6.6 Permits, Fees: Unless otherwise provided in the Supplemental General Conditions, the CONTRACTOR shall obtain and pay for all construction permits, licenses and fees required for prosecution of the Work. 6.7 Laws and Regulations: 6.7.1 The CONTRACTOR shall give all notices and comply with all laws and regulations applicable to furnishing and performing the Work. Except where otherwise expressly required by applicable laws and regulations, neither the OWNER nor EJA shall be responsible for monitoring the CONTRACTOR's compliance with any laws and regulations. 6.7.2 The CONTRACTOR shall plan and execute its operations in compliance with all applicable Federal, State and local laws and regulations, including those concerning control and abatement of water pollution and prevention and control of air pollution- 6.7.3 11 the CONTRACTOR performs any Work knowing or having reason to know that it is contrary to laws or regulations, then the CONTRACTOR shall bear all claims, costs, losses and damages arising therefrom; however, it shall not be the CONTRACTOR's primary responsibility to make certain that the Specifications and Drawings are in accordance with laws and regulations, but this does not relieve the CONTRACTOR of the CONTRACTOR's obligations under Article 3. 6.8 Taxes: 6.8.1 The CONTRACTOR shall pay all sales, consumer, use and other similar taxes required to be paid by the CONTRACTOR in accordance with the laws and regulations of the State of Texas. 6.8.2 The OWNER is an exempt organization as defined by Chapter 11 of the Property Tax Code of Texas and is thereby exempt from payment of Sales Tax under Chapter 151, Limited Use Sales, Excise and Use Tax, Texas Tax Code, and Article 1066 (C), Local Sales and Use Tax Act Revised CivIl Statutes of Texas. 6.9 Use of Premises: 6.9.1 The CONTRACTOR shall confine construction equipment, the storage of materials and equipment and the operations of workers to the site and land and areas identified in and permitted by the Contract Documents and other land and areas permitted by laws and regulations, rights -of -way, permits and easements, and shall not unreasonably encumber the premises with construction equipment or other materials or equipment. The CONTRACTOR shall assume full responsibility for any damage to any such land or area, or to the owner or occupant thereof or of any adjacent land or areas, resulting from the performance of the Work. Should any claim be made by any such owner or occupant because of the performance of the Work, the CONTRACTOR shall promptly settle with such other party by negotiation or otherwise resolve the claim by dispute resolution proceeding or at law. The CONTRACTOR shall indemnify, defend and hold harmless the OWNER, E/A, E/A's consultants and anyone directly or indirectly employed by any of them from and against all claims, costs, losses and damages (including court costs and reasonable attorneys' fees) arising out of or resulting from any claim or action, legal or equitable, brought by any such owner or occupant against the OWNER, E/A or any other party indemnified hereunder to the extent caused by or based upon performance of the Work or failure to perform the Work. 6.9.2 During the progress of the Work and on a daily basis, the CONTRACTOR shall keep the premises free from accumulations of waste materials. rubbish and other debris resulting from the Work. At the completion of the Work, the CONTRACTOR shall remove all waste materials, rubbish and debris from and about the premises as well as all tools, appliances, construction equipment and machinery and surplus materials. The CONTRACTOR shall leave the site clean and ready for occupancy by the OWNER at Substantial Completion of the Work. The CONTRACTOR shall. 00700 05/27/03 Page 13 General Conditions at a minimum, restore to original condition all property not designated for alteration by the Contact Documents. 6.9.3 The CONTRACTOR shall not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor shall the CONTRACTOR subject any part of the Work or adjacent property to stresses or pressures that will endanger it. 6.10 Record Documents: The CONTRACTOR shall maintain in a safe place at the site, or other location acceptable to the OWNER, one (1) record copy of all Drawings, Specifications, Addenda, Change Orders, Change Directives, Field Orders and written interpretations and clarifications (issued pursuant to paragraph 9.5) in good order and annotated to show all changes made during construction. These record documents, together with all final samples and all final Shop Drawings, will be available to the OWNER and E/A for reference during performance of the Work. Upon Substantial Completion of the Work, these record documents, samples and Shop Drawings shall be promptly delivered to Owner's Representative. 6.11 Safety and Protection: 6.11.1 The CONTRACTOR shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. Upon request, and prior to installation of measures, the CONTRACTOR shall submit a site security plan for approval by the OWNER. By reviewing the plan or making recommendations or comments, the OWNER will not assume liability nor will the CONTRACTOR be relieved of liability for damage. injury or loss. The CONTRACTOR shall take all necessary precautions for the safety of and shall provide the necessary protection to prevent damage, injury or loss to: .1 all persons on the Work site or who may be affected by the Work; .2 all the Work and materials and equipment to be incorporated therein, whether in storage on or off the site; and .3 other property at the site or adjacent thereto, including but not limited to, trees, shrubs, lawns, walks, pavements, roadways, structures, utilities and underground facilities not designated for removal, relocation or replacement in the course of construction_ 6.11.2 The CONTRACTOR shall comply with all applicable laws and regulations of any public body having jurisdiction for safety of persons or property or to protect them from damage, injury or loss; and shall erect and maintain all necessary safeguards for such safety and protection. The CONTRACTOR shall notify owners of adjacent property and of underground facilities, and utility owners when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation and replacement of their property. All damage, injury or loss to any property referred to' in paragraph 6.11.1.2 and paragraph 6.11.1.3 caused, directly or indirectly, in whole or in part, by the CONTRACTOR, Subcontractor, Supplier or any person or organization directly or indirectly employed by any of them to perform or furnish any of the Work or anyone for whose acts any of them may be liable, shall be remedied by the CONTRACTOR (except damage or loss attributable to the fault of Drawings or Specifications or to the acts or omissions of the OWNER, or EJA, or E/A's consultant or anyone employed by any of them or anyone whose acts any of them may be liable, and not attributable, directly or indirectly, in whole or in part, to the faults or negligence of the CONTRACTOR or any Subcontractor, Supplier or other person or organization directly or indirectly employed by any of them). The CONTRACTOR's duties and responsibilities for safety and protection of the Work shall continue until such time as all the Work is completed and Owners Representative has issued a notice to the OWNER and the CONTRACTOR in accordance with Article 14 that the Work is acceptable (except as otherwise expressly provided in connection with Substantial Completion). 6.11.3 Safety Representative: The CONTRACTOR shall designate a qualified and experienced safety representative at the site whose duties and responsibilities shall be the prevention of accidents and the maintaining and supervising of safety precautions and programs. Upon request of the OWNER. the CONTRACTOR shall provide certifications or other documentation of the safety representative's qualifications. 6.11.4 Hazard Communication Programs: The CONTRACTOR shall be responsible for coordinating any exchange of material safety data sheets or other hazard communication information required to be made available to or exchanged between or among employers at the site in accordance with laws and regulations. 6.11.5 Emergencies: 00700 05127/03 Page 14 General Conditions 6.11.5.1 In emergencies affecting the safety or protection of persons or the Work at the site or adjacent thereto, the CONTRACTOR, without special instruction or authorization from the OWNER or EIA, is obligated to act reasonably to prevent threatened damage, injury or loss and to mitigate damage or loss to the Work. The CONTRACTOR shall give Owner's Representative prompt written notice if the CONTRACTOR believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby. ff Owner's Representative determines that a change in the Contract Documents is required because of the action taken by the CONTRACTOR in response to such an emergency, a Change Directive or Change Order win be issued to document the consequences of such action; otherwise the OWNER will not be responsible for the CONTRACTOR's emergency action. 6.11.5.2 Authorized agents of the CONTRACTOR shall respond immediately to call - out at any time of any day or night when circumstances warrant the presence on Project site of the CONTRACTOR or its agent to protect the Work or adjacent property from damage, restriction or limitation or to take such action or measures pertaining to the Work as may be necessary to provide for the safety of the public. Should the CONTRACTOR and/or its agent fail to respond and take action to alleviate such an emergency situation, the OWNER may direct other forces to take action as necessary to remedy the emergency condition, and the OWNER will deduct any cost of such remedial action from the funds due to the CONTRACTOR under this Contract. 6.11.5.3 In the event there is an accident involving injury to any individual on or near the Work, the CONTRACTOR shall notify Owner's Representative within twenty-four (24) hours of the event and shall be responsible for recording the location of the event and the circumstances surrounding the event through photographs, interviewing witnesses, obtaining medical reports and other documentation that describes the event. Copies of such documentation shall be provided to Owner's Representative, for the OWNER's and E/A's records, within forty -eight (48) hours of the event. 6.12 Continuing the Work: The CONTRACTOR shall carry on the Work and adhere to the progress schedule during all disputes or disagreements with the OWNER. No Work shalt be delayed or postponed pending resolution of any disputes or disagreements, except as the OWNER and the CONTRACTOR may otherwise agree in writing. 00700 05/27/03 Page 15 6.13 CONTRACTOR's General Warranty and Guarantee: 6.13.1 The CONTRACTOR warrants and guarantees to the OWNER that all Work will be performed in a good and workmanlike manner in accordance with the Contract Documents and will not be defective. The CONTRACTOR's warranty and guarantee hereunder excludes defects or damage caused by .1 abuse, modification or impro{Ser maintenance or operation by persons other than the CONTRACTOR, Subcontractors or Suppliers; or .2 normal wear and tear under normal usage. 6.13.2 The CONTRACTOR's obligation to perform and complete the Work in a good and workmanlike manner in accordance with the Contract Documents shall be absolute. None of the following will constitute an acceptance of Work that is not in accordance with the Contract Documents or a release of the CONTRACTOR's obligation to perform the Work in accordance with the Contract Documents: .1 observations by Owner's Representative and /or E/A; .2 recommendation of any progress or final payment by Owner's Representative; .3 the issuance of a certificate of Substantial Completion or any payment by the OWNER to the CONTRACTOR under the Contract Documents; .4 use or occupancy of the Work or any part thereof by the OWNER; .5 any acceptance by the OWNER or any failure to do so; .6 any review of a Shop Drawing or sample submittal; .7 any inspection, test or approval by others; or .8 any correction of defective Work by the OWNER_ 6.14 Indemnification: General Conditions 6.14.1 The CONTRACTOR shall defend, indemnify and hold harmless the OWNER, EJA, E/A's consultants and subconsultants and their respective officers, directors, partners, employees, agents and other consultants and any of them from and against all claims, costs. losses and damages (including but not limited to all fees and charges of engineers, architects, attorneys and other professionals and all court or other dispute resolution costs) arising out of or resulting from the performance of the Work, provided that any such claim, cost, loss or damage: .1 is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom, and .2 is caused in whole or in part by any negligent act or omission of the CONTRACTOR, any Subcontractor, any Supplier, any person or organization directly or indirectly employed by any of them to perform or furnish any of the Work or anyone for whose acts any of them may be liable, regardless of whether or not caused in part by any negligence or omission of a person or entity indemnified hereunder or whether liability is imposed upon such indemnified party by laws and regulations regardless of the negligence of any such person or entity. 6.14.2 The indemnification obligation under paragraph 6.14.1 shall not be limited in any way by any limitation on the amount or type of damages, or compensation or benefits payable by or for the CONTRACTOR or any such Subcontractor, Supplier or other person or organization under workers' compensation acts, disability benefit acts or other employee benefit acts. 6.14.3 The obligations of the CONTRACTOR under paragraph 6.14.1 shall not extend to the liability of the OWNER, EJA, E/A's consultants, and their officers, directors, partners, employees or agents caused primarily by negligent preparation of maps, drawings, surveys, designs or specifications upon which is placed the applicable state - authorized design professional seal of the OWNER's, E/A's or E/A's consultant's officers, directors, partners, employees or agents. 6.14.4 In the event the CONTRACTOR fails to follow the OWNER's directives concerning use of the site, scheduling or course of construction, or engages in other conduct which proximately causes damage to property based on inverse condemnation or otherwise, then and in that event, the CONTRACTOR shall indemnify the OWNER against all costs resulting from such claims. 6.14.5 In the event the CONTRACTOR unreasonably delays progress of the work being done by others on the site so as to cause loss for which the OWNER becomes liable, then the CONTRACTOR shall reimburse the OWNER for such loss. 6.15 Survival of Obligations: All representations, indemnifications, warranties and guarantees made in, required by or given in accordance with the Contract Documents, as well as all continuing obligations indicated in the Contract Documents, will survive final payment, completion and acceptance of the Work and termination or completion of the Agreement. 6.16 Losses from Natural Causes: Unless otherwise specified, all loss or damage to the CONTRACTOR arising out of the nature of the Work to be done or from action of the elements, floods or from unforeseeable circumstances in prosecution of the Work or from unusual obstructions or difficulties which may be encountered in prosecution of the Work, shall be sustained and borne by the CONTRACTOR at its own cost and expense. 6.17 Notice of Claim: Should the CONTRACTOR suffer injury or damage to person or property because of any error, omission or act of the OWNER or of any of the OWNER's employees or agents or others for whose acts the OWNER is liable, a Claim will be made to the other party within thirty (30) calendar days of the event giving rise to such injury or damage. The provisions of this paragraph 6.17 shall not be construed as a substitute for or a waiver of the provisions of any applicable statute of limitations or statute of repose. 6.18 Liquidated Damages: The CONTRACTOR or its Surety shall be liable for liquidated damages for the CONTRACTOR'S failure to timely complete the Work or any portion thereof within the Contract Time. ARTICLE 7 - OTHER WORK 7.1 The OWNER may perform other work related to the Project at the site by the OWNER's 00700 05/27/03 Page 16 General Conditions own forces, or let other contracts therefor, or have other work performed by utility owners. If the CONTRACTOR believes that delay or additional cost is involved because of such action by the OWNER, the CONTRACTOR may make a Claim as provided in Article 11 or Article 12_ 7.2 The CONTRACTOR shall afford other contractors who are in a contract with the OWNER and each utility owner (and the OWNER, if the OWNER is performing the additional work with the OWNER's employees) proper and safe access to the site and a reasonable opportunity for the introduction and storage of materials and equipment and the execution of such other work and shall properly connect and coordinate the Work with theirs. Unless otherwise provided in the Contract Documents, the CONTRACTOR shall do all cutting, fitting and patching of the Work that may be required to make its several parts come together properly and integrate with such other work. The CONTRACTOR shall not endanger any work of others by cutting, excavating or otherwise altering their work and will only cut or alter their work with the written consent of Owner's Representative and the other contractors whose work will be affected. The CONTRACTOR shall promptly remedy damage wrongfully caused by the CONTRACTOR to completed or partially completed construction or to property of the OWNER or separate contractors. 7.3 If the proper execution or results of any part of the CONTRACTOR's Work depends upon work performed by others under this Article 7, the CONTRACTOR shall inspect such other work and promptly report to Owner's Representative in writing any delays, defects or deficiencies in such other work that render it unavailable or unsuitable for the proper execution and results of the CONTRACTOR's Work. The CONTRACTOR's failure to report will constitute an acceptance of such other work as fit and proper for integration with the CONTRACTOR's Work except for latent or non- apparent defects and deficiencies in such other work. 7.4 The OWNER shall provide for coordination of the activities of the OWNER's own forces and of each separate contractor with the Work of the CONTRACTOR, who shall cooperate with them. The CONTRACTOR shall participate with other separate contractors and Owner's Representative in reviewing their construction schedules when directed to do so. The CONTRACTOR shall make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement. The construction schedules shall then constitute the schedules to be used by the CONTRACTOR, separate contractors and the OWNER until subsequently revised. 7.5 Unless otherwise stated herein, costs caused by delays or by improperly timed activities or defective construction shall be borne by the party responsible therefor. ARTICLE 8 - OWNER'S RESPONSIBILITIES 8.1 Prior to the start of construction, the OWNER will designate in writing a person or entity to act as Owner's Representative during construction. Except as otherwise provided in these General Conditions, the OWNER shall issue all communications to the CONTRACTOR through Owner's Representative. 8.2 The OWNER will not supervise, direct, control or have authority over or be responsible for the CONTRACTOR's means, methods, techniques, sequences or procedures of construction or the safety precautions and programs incident thereto. The OWNER is not responsible for any failure of the CONTRACTOR to comply with laws and regulations applicable to furnishing or performing the Work. The OWNER is not responsible for the CONTRACTOR's failure to perform or fumish the Work in accordance with the Contract Documents. Failure or omission of the OWNER to discover, or object to or condemn any defective Work or material shall not release the CONTRACTOR from the obligation to properly and fully perform the Contract. 8.3 The OWNER is not responsible for the acts or omissions of the CONTRACTOR, or of any Subcontractor, any Supplier, or of any other person or organization performing or furnishing any of the Work. 8.4 Information or services under the OWNER's control shall be furnished by the OWNER with reasonable promptness to avoid delay in the orderly progress of the Work. 8.5 The foregoing are in addition to other duties and responsibilities of the OWNER enumerated herein and especially those in respect to Article 4 (Availability of Lands; Subsurface and Physical Conditions; Reference Points), Article 7 (Other Work) and Article 14 (Payments to the CONTRACTOR and Completion). 8.6 Notice of Claim: Should the OWNER suffer injury or damage to person or property because of any error, omission or act of the CONTRACTOR or of any of the 00700 05/27/03 Page 17 General Conditions CONTRACTOR's employees or agents or others for whose acts the CONTRACTOR is liable, a Claim will be made to the other party within thirty (30) calendar days of the event giving rise to such injury or damage. The provisions of this paragraph 8.6 shall not be construed as a substitute for or a waiver of the provisions of any applicable statute of limitations or statute of repose. ARTICLE 9 - ENGINEER/ARCHITECTS STATUS DURING CONSTRUCTION 9.1 E/A's Authority and Responsibilities: 9.1.1 The duties and responsibilities and the limitations of authority of E/A during construction are set forth in the Contract Documents and shall not be extended without written consent of the OWNER and E/A. The assignment of any authority, duties or responsibilities to E/A under the Contract Documents, or under any agreement between the OWNER and E/A, or any undertaking, exercise or performance thereof by EIA, is intended to be for the sole and exclusive benefit of the OWNER and not for the benefit of the CONTRACTOR, Subcontractor, Supplier, or any other person or organization, or for any surety or employee or agent of any of them. 9.1.2 E/A will not supervise, direct, control or have authority over or be responsible for the CONTRACTOR's means, methods, techniques, sequences or procedures of construction, or the safety precautions and programs incident thereto. E/A is not responsible for any failure of the CONTRACTOR to comply with laws and regulations applicable to the furnishing or performing the Work. FJA is not responsible for the CONTRACTOR's failure to perform or furnish the Work in accordance with the Contract Documents. Failure or omission of E/A to discover, or object to or condemn any defective Work or material shall not release the CONTRACTOR from the obligation to properly and fully perform the Contract. 9.1.3 E/A is not responsible for the acts or omissions of the CONTRACTOR, or of any Subcontractor, any Supplier, or of any other person or organization performing or furnishing any of the Work. 9.1.4 If the OWNER so directs, FJA will review the final Application for Payment and accompanying documentation and all maintenance and operating instructions, schedules, guarantees, bonds and certificates of inspection, tests and approvals and other documentation required to be delivered by Article 14, but only to determine generally that their content complies with the requirements of, and in the case of certificates of inspections, tests and approvals that the results certified indicate compliance with, the Contract Documents. 9.1.5 The limitations upon authority and responsibility set forth in this paragraph 9.1 shat also apply to FDA's Consultants, Resident Project Representative and assistants. 9.2 E/A as Owner's Representative: 9.2.1 E/A may be designated as Owner's Representative under paragraph 8.1. 9.3 Visits to Site: If the OWNER so directs, E/A will make visits to the site at intervals appropriate to the various stages of construction as is necessary in order to observe as an experienced and qualified design professional the progress that has been made and the quality of the various aspects of the CONTRACTOR's executed Work. Based on information obtained during such visits and observations, E/A will endeavor for the benefit of the OWNER to determine if the Work is proceeding in accordance with the Contract Documents. E/A will not be required to make exhaustive or continuous on -site inspections to check the quality or quantity of the Work. E/A's efforts will be directed toward providing for the OWNER a greater degree of confidence that the completed Work will conform to the Contract Documents. On the basis of such visits and on -site observations, E/A will keep the OWNER informed of the progress of the Work and will endeavor to guard the OWNER against defective Work. E/A's visits and on -site observations are subject to all the limitations on E/A's authority and responsibility set forth in paragraph 9.1. 9.4 Project Representative: 9.5 Clarifications and Interpretations: If the OWNER and E/A agree, E/A will furnish a Resident Project Representative to assist E/A in providing more continuous observation of the Work. The responsibilities and authority and limitations of any such Resident Project Representative and assistants will be as provided in paragraph 9.1 and in the Supplemental General Conditions. The OWNER may designate another representative or agent to represent the OWNER at the site who is not FJA, E/A's consultant, agent or employee. 00700 05/27103 Page 18 General Conditions E/A may determine that written clarifications or interpretations of the requirements of the Contract Documents (in the form of drawings or otherwise) are necessary. Such written clarifications or interpretations will be consistent with the intent of and reasonably inferable from the Contract Documents, will be issued with reasonable promptness by Owner's Representative and will be binding on the OWNER and the CONTRACTOR. If the OWNER or the CONTRACTOR believes that a written clarification or interpretation justifies an adjustment in the Contract Amount or the Contract Times, the OWNER or the CONTRACTOR may make a Claim therefor as provided in Article 11 or Article 12. 9.6 Rejecting Defective Work: E/A will recommend that the OWNER disapprove or reject Work which E/A believes to be defective, or believes will not produce a completed Project that conforms to the Contract Documents or will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. ARTICLE 10 - CHANGES IN THE WORK 10.1 Changes: 10.1.1 Without invalidating the Contract and without notice to any surety, the OWNER may, at any time or from time to time, order additions, deletions or revisions in the Work. Such changes in the Work will be authorized by Change Order, Change Directive or Field Order. 10.1.2 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, Change Directive or Field Order. 10.1.3 The CONTRACTOR shall not be entitled to an increase in the Contract Amount or an extension of the Contract Times with respect to any Work performed that is not required by the Contract Documents as amended, modified and supplemented as provided in paragraph 3.3.1 and paragraph 3.3.2, except in the case of an emergency as provided in paragraph 6.11.5 or in the case of uncovering Work as provided in paragraph 13.4. 10.1.4 Except in the case of an emergency as provided in paragraph 6.11.5, a Change Order or Change Directive is required before the 00700 05/27/03 Page 19 CONTRACTOR commences any activities associated with a change in the Work which, in the CONTRACTOR 's opinion, will result in a change in the Contract Amount and /or Contract Times. 10.1.5 If notice of any change affecting the general scope of the Work or the provisions of the Contract Documents (including, but not limited to, Contract Amount or Contract Times) is required by the provisions of any Bond to be given to a surety, the giving of any such notice will be the CONTRACTOR's responsibility, and the amount of each applicable Bond will be adjusted accordingly. 10.2 Change Orders: 10.2.1 The OWNER and the CONTRACTOR shall execute appropriate written Change Orders covering: .1 a change in the Work; .2 the amount of the adjustment in the Contract Amount, if any and .3 the extent of the adjustment in the Contract Time, if any. 10.2.2 An executed Change Order shall represent the complete, equitable, and final amount of adjustment in the Contract Amount and /or Contract Time owed to the CONTRACTOR or the OWNER as a result of the occurrence or event causing the change in the Work encompassed by the Change Order. 10.3 Change Directives: 10.3.1 The OWNER may by written 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 Amount and Contract Time being adjusted as necessary. A Change Directive shall be used in the absence of complete and prompt agreement on the terms of a Change Order. 10.3.2 If the Change Directive provides for an adjustment to the Contract Amount, the adjustment shall be based on the method provided in paragraph 11.5. 10.3.3 A Change Directive signed by the CONTRACTOR indicates the agreement of the CONTRACTOR with proposed basis of adjustment, if any, in Contract Amount and Contract Time. Such agreement shall be effective immediately and shall be recorded later by preparation and execution of an appropriate Change Order. General Conditions 10.3.4 Upon execution of a Change Directive, the CONTRACTOR shall promptly proceed with the change in the Work involved. 10.4 Field Order: 10.4.1 Owner's Representative may authorize minor variations in the Work from the requirements of the Contract Documents which do not involve an adjustment in the Contract Amount or the Contract Times and are compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. These shall be accomplished by written Field Order and shall be binding on the OWNER and on the CONTRACTOR who shall perform the Work involved promptly. 10.4.2 ff the CONTRACTOR believes that a Field Order would require an adjustment in the Contract Amount and /or Contract Times, the CONTRACTOR shall make written request to Owner's Representative for a Change Order. Any request by the CONTRACTOR for an adjustment in Contract Amount and /or Contract Times shall be made in writing prior to beginning the work covered by the Field Order. 10.5 No Damages for Delay: The CONTRACTOR shall receive no compensation for delays or hindrances to the Work, except when direct and unavoidable extra cost to the CONTRACTOR is caused by failure of the OWNER to provide information or material, if any, which is to be furnished by the OWNER or access to the Work. When such extra compensation is claimed, a written statement thereof shall be presented by the CONTRACTOR to the OWNER and, if found to be correct by the OWNER, shall be approved. If delay is caused by specific orders given by the OWNER to stop work or by performance of extra Work or by fature of the OWNER to provide material or necessary instructions for carrying on the Work, then such delay will entitle the CONTRACTOR to an equivalent extension of time, the CONTRACTOR's application for which shall, however, be subject to approval of the OWNER. No such extension of time shall release the CONTRACTOR or surety on its performance bond from all the CONTRACTOR's obligations hereunder which shall remain in full force until discharge of the Contract. ARTICLE 11 - CHANGE OF CONTRACT AMOUNT 11.1 The Contract Amount is stated in the Agreement and, including authorized adjustments, is the total amount payable by the OWNER to the CONTRACTOR for performance of the Work under the Contract Documents. 11.2 The original Contract Amount may not be increased by more than twenty -five percent (25 %) and it may not be decreased more than twenty -five percent (25 %) without the consent of the CONTRACTOR to such decrease. 11.3 The Contract Amount shall only be changed by a Change Order. Any claim for an adjustment in the Contract Amount shall be made by Written Notice delivered by the party making the Claim to the other party promptly (but in no event later than thirty (30) calendar days) after the start of the occurrence or event giving rise to the Claim and stating the general nature of the Claim. Notice of the amount of the Claim with supporting data shall be delivered within thirty (30) calendar days after Written Notice of Claim is delivered by claimant, and shall represent that the adjustment claimed covers all known amounts to which claimant is entitled as a result of said occurrence or event. If the OWNER and the CONTRACTOR cannot otherwise agree, all Claims for adjustment in the Contract Amount shall be determined as set out in Article 16. 11.4 Determination of Value of Work: 11.4.1 The value of any Work covered by a Change Order or of any Claim for an adjustment in the Contract Amount will be determined by one or more of the following methods: .1 by application of unit prices contained in the Contract Documents to the quantities of the items involved. .2 by a mutually agreed lump sum properly itemized and supported by sufficient substantiating data to permit evaluation. .3 by cost of Work plus the CONTRACTOR's fee for all overhead costs and profit (determined as provided in paragraph 1t5). 11.4.2 Before using the method described in paragraph 11A.1.3, the OWNER and the CONTRACTOR agree to negotiate a Change Order using the methods identified in paragraph 11.4.1.1 and paragraph 11.4.1.2, as appropriate, to determine the adjustment in the Contract Amount. 11.5 Cost of Work: If neither of the methods defined in paragraph 11.4.1.1 or paragraph 11.4.1.2 can be agreed upon 00700 05/27/03 Page 20 General Conditions before a Change in the Work is commenced which will result in an adjustment in the Contract Amount, then the change in the Work will be performed by Change Directive and payment will be made as follows: .1 For all personnel, the CONTRACTOR will receive the rate or wage specified in the prevailing wage rates established in Section 00830 for each hour that said personnel are actually engaged in such Work, to which will be added an amount equal to twenty -five percent (25 %) of the sum thereof as compensation for the CONTRACTOR's and any affected Subcontractor's total overhead and profit. No separate charge will be made by the CONTRACTOR for organization or overhead expenses. For the cost of premiums on public liability insurance, workers' compensation insurance, social security and unemployment insurance, an amount equal to fifty-five percent (55 %) of the wages paid personnel, excluding the twenty-five (25 %) compensation provided above, will be paid to the CONTRACTOR. The actual cost of the CONTRACTOR's bond(s) on the extra Work will be paid based on invoices from surety. No charge for superintendence will be made unless considered necessary and ordered by the OWNER. .2 The CONTRACTOR will receive the actual cost, including freight charges, of the materials used on such Work, to which costs will be added a sum equal to twenty -five percent (25 %) thereof as compensation for the CONTRACTOR's and any affected Subcontractor's total overhead and profit. In case material invoices indicate a discount may be taken, the actual cost will be the invoice price minus the discount. .3 For machinery, trucks, power tools, or other similar equipment agreed to be necessary by the OWNER and the CONTRACTOR, the OWNER will allow the CONTRACTOR the rate as given in the latest edition of the Associated General Contractors of America "Contractor's Equipment Cost Guide" as published by Dataquest for each hour that said tools or equipment are in use on such work, which rate includes the cost of fuel, lubricants and repairs. No additional compensation will be allowed on the equipment for the CONTRACTOR's overhead and profit. .4 The compensation, as herein provided for, shall be received by the CONTRACTOR and any affected Subcontractor as payment in full for work done by Change Directive and will include use of small tools, and total overhead expense and profit. The CONTRACTOR and the Owner's Representative shall compare records of work done by Change Directive at the end of each day. Copies of these records will be made upon forms provided for this purpose by the OWNER and signed by both Owner's Representative and the CONTRACTOR, with one (1) copy being retained by the OWNER and one (1) by the CONTRACTOR. Refusal by the CONTRACTOR to sign these records within two (2) working days of presentation does not invalidate the accuracy of the record. 11.6 Unit Price Work: 11.6.1 Where the Contract Documents provide that all or part of the Work is to be unit price Work, initially the Contract Amount will be deemed to include for all unit price work an amount equal to the sum of the established unit price for each separately identified item of unit price work times the estimated quantity of each item as indicated in the Bid. The estimated quantities of items of unit price work are not guaranteed and are solely for the purpose of comparison of Bids and determining an initial Contract Amount. Determinations of the actual quantities and classifications of unit price work performed by the CONTRACTOR will be made by Owner's Representative. Owner's Representative will review with the CONTRACTOR the preliminary determinations on such matters before rendering a written decision thereon (by recommendation of an Application for Payment or otherwise). 11.6.2 When "plan quantity' is indicated for a bid item, the CONTRACTOR shall be paid the amount specified in the Contract Documents without any measurements. 11.6.3 Each unit price will be deemed to include an amount considered by the CONTRACTOR to be adequate to cover the CONTRACTOR's overhead and profit for each separately identified item. 11.6.4 A Major Item is any individual bid item in the Bid that has a total cost equal to or greater than five 00700 05/27/03 Page 21 General Conditions percent (5 %) of the original Contract Amount or $50,000, whichever is greater. computed on the basis of bid quantities and Contract unit prices. 11.6.5 The OWNER or the CONTRACTOR may make a Claim for an adjustment in the Contract Amount in accordance with Article 11 if_ .1 the actual quantity of any Major Item should become as much as twenty percent (20 %) more than or twenty percent (20 %) less than in the Bid; or .2 The CONTRACTOR presents proper documentation contesting the accuracy of "plan quantity; and Owner's Representative verifies quantity and determines original quantity is in error by five percent (5 %) or more ARTICLE 12 - CHANGE OF CONTRACT TIMES 12.1 Working Day and Calendar Day Contracts: 12.1.1 The Contract Times (or Milestones) shall only be changed by Change Order or Time Extension Request duly executed by both the CONTRACTOR and Owner's Representative. Any claim for an adjustment of the Contract Times (or Milestones) shall be made by Written Notice delivered by the party making the Claim to the other party promptly (but in no event later than thirty (30) calendar days) after the start of the occurrence or event giving rise to the delay and stating the general nature of the delay. Notice of the extent of the delay with supporting data shall be delivered within thirty (30) calendar days after Written Notice of Claim is delivered by claimant, and shall represent that the adjustment claimed is the entire adjustment to which claimant is entitled as a result of said occurrence or event. If the OWNER and the CONTRACTOR cannot otherwise agree, all Claims for adjustment in the Contract Times (or Milestones) shall be determined as set out in Article 16. No Claim for an adjustment in the Contract Times (or Milestones) will be valid if not submitted in accordance with the requirements of this paragraph. 12.1.2 When the CONTRACTOR is at fault and the OWNER stops the Work so that corrections in the Work can be made by the CONTRACTOR, then no extension in time will be allowed. 12.1.3 When the CONTRACTOR is prevented from completing any part of the Work within the Contract Times (or Milestones) due to delay beyond the control of both the OWNER and the CONTRACTOR, an extension of the Contract Times (or Milestones) in an amount equal to the time lost due to such delay shall be the CONTRACTOR's sole and exclusive remedy for such delay. However, adverse weather shall not be considered justification for extension of Contract Times on Calendar Day contracts except as provided for in paragraph 12.2. 12.1.4 The OWNER will consider time extension requests and may grant the CONTRACTOR an extension of time because of: .1 Changes ordered in the work which justify additional time. .2 Failure of materials or products being at the Project site due to delays in transportation or failures of Suppliers, which are not the result of the CONTRACTOR's, Subcontractor's or Supplier's negligence. The request for an extension of time shall be supported by a recitation of acts demonstrating that such delays were beyond the control of the CONTRACTOR!, including but not limited to, the CONTRACTOR's efforts to overcome such delays documented as follows: a) Copy of purchase order for delayed item(s) indicating date ordered by the CONTRACTOR/Subconlractor and date purchase order received by Supplier_ b) If item(s) require Shop Drawings or other submittal information in accordance with the Contract Documents, provide record of date submittal(s) forwarded to Owners Representative, date submittal(s) returned to the CONTRACTOR, and date submittal(s) forwarded to Supplier. c) Copy of document(s) from Supplier, on Supplier's letterhead, indicating date(s) item(s) would be ready for shipment and /or actual shipment date(s). d) Copies of all correspondence between the CONTRACTOR/ Subcontractor and Supplier indicating the CONTRACTOR/ Subcontractor's efforts to expedite item(s). 00700 05/27/03 Page 22 General Conditions e) If item(s) are being purchased by a Subcontractor, provision of meeting notes, correspondence, and the like which reflect the CONTRACTOR's efforts with the Subcontractor to expedite delivery of the item(s). .3 When acts of the OWNER, EIA, utility owners or other contractors employed by the OWNER delay progress of work through no fault of the CONTRACTOR. .4 When the CONTRACTOR is delayed by strikes, lockouts, fires, losses from natural causes, or other unavoidable cause or cams beyond the CONTRACTOR'S control. 12.2 Calendar Day Contracts: Under a Calendar Day Contract, the CONTRACTOR may also be granted an extension of time because of unusual inclement weather that is beyond the normal weather expected for the Round Rock, Texas area. Normal weather which prevents the CONTRACTOR from performing Work is expected during a Calendar Day Contract, and is not a justification for an extension of time. The following delineates the number of days per month for which, for purposes of Calendar Day Contracts, expected normal weather will prevent performance of Work: January 7 days February 7 days March 7 days April 7 days May 8 days June 6 days July 6 days Atigust 5 days September 7 days October 7 days November 7 days December 7 days Days per month in which amounts exceeding the number shown above may be credited as a Rain Day if a Claim is made in accordance with paragraph 12.1.1 and meets the following definition: a "Rain Day" is any day in which a weather event occurs at the site and is sufficient to prevent the CONTRACTOR from performing units of Work critical to maintaining the project schedule. ARTICLE 13 - TESTS AND INSPECTIONS; AND CORRECTION OR REMOVAL OF DEFECTIVE WORK 13.1 Notice of Defects: Prompt notice of all defective Work of which the OWNER or E/A has actual knowledge will be given to the CONTRACTOR. All defective Work may be rejected or corrected as provided for in Article 13. 13.2 Access to Work; The OWNER, E/A, E/A's Consultants, other representatives and personnel of the OWNER, independent testing laboratories and governmental agencies having jurisdiction will have unrestricted physical access to the Work site for observing, inspecting and testing. The CONTRACTOR shall provide them proper and safe conditions for such access, and advise them of the CONTRACTOR's site safety procedures and programs so that they may comply therewith as applicable. 13.3 Tests and Inspections: 13.3.1 The CONTRACTOR shall give timely notice of readiness of the Work for all required inspections, tests or approvals, and shall cooperate with inspection and testing personnel to facilitate required inspections or tests. 13.3.2 The OWNER shall employ and pay for services of an independent testing laboratory to perform all inspections, tests or approvals required by the Contract Documents except: .1 for inspections, tests or approvals covered by paragraph 13.3.3 below; .2 for reinspecting or retesting defective Work; and .3 as otherwise specifically provided in the Contract Documents. All testing laboratories shall be those selected by the OWNER. 13.3.3 If laws or regulations of any public body having jurisdiction require any Work (or part thereof) specifically to be inspected, tested or approved by an employee or other representative of such public body, the CONTRACTOR shall assume full responsibility for arranging and obtaining such inspections, tests or approvals, pay all costs in connection therewith and furnish Owner's Representative the required certificates of inspection or approval. The CONTRACTOR shall also be responsible for arranging and obtaining and shall pay all costs in connection with any inspections, tests or approvals required for the OWNER's and EIA's 00700 05/27/03 Page 23 General Conditions review of materials or equipment to be incorporated in the Work, or of materials, mix designs or equipment submitted for review prior to the CONTRACTOR's purchase thereof for incorporation in the Work. 13.4 Uncovering Work: 13.4.1 If any Work (or the work of others) that is to be inspected, tested or approved is covered by the CONTRACTOR without concurrence of Owner's Representative, or if any Work is covered contrary to the written request of Owner's Representative, it must, if requested by Owners Representative, be uncovered and recovered at the CONTRACTOR's expense. 13.4.2 If Owner's Representative considers it necessary or advisable that covered Work be observed, inspected or tested, the CONTRACTOR shalt uncover, expose or otherwise make available for observation, inspection or testing that portion of the Work in question, fumishing all necessary labor, material and equipment. If it is found that such Work is defective, the CONTRACTOR shall pay all claims, costs, losses and damages caused by, arising out of or resulting from such uncovering, exposure, observation, inspection and testing and of satisfactory replacement or reconstruction (including but not limited to a0 costs of repair or replacement of work of others); and the OWNER shall be entitled to an appropriate decrease in the Contract Amount, and may make a Claim therefor as provided in Article 11. If, however, such Work is not found to be defective, the CONTRACTOR shall be allowed an increase in the Contract Amount or an extension of the Contract Times (or Milestones), or both, directly attributable to such uncovering, exposure. observation, inspection, testing, replacement and reconstruction; and the CONTRACTOR may make a Claim therefor as provided in Article 11 and Article 12. 13.5 OWNER May Stop the Work: 13.5.1 If the Work is defective, or the CONTRACTOR fails to supply sufficient skilled workers or suitable materials or equipment, or fails to furnish or perform the Work in such a way that the completed Work will conform to the Contract Documents, the OWNER may order the CONTRACTOR to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of the OWNER to stop the Work shall not give rise to any duty on the part of the OWNER to exercise this right for the benefit of the CONTRACTOR or any surety or other party. 13.5.2 If the CONTRACTOR persistently fails to correct defective Work or submit a satisfactory plan to take corrective action, with procedure and time schedule, the OWNER may order the CONTRACTOR to stop the Work, or any portion thereof, until cause for such order has been eliminated, or take any other action permitted by this Contract. A notice to stop the Work, based on defects, shall not stop calendar or working days charged to the Project. 13.6 Correction or Removal of Defective Work: If required by the OWNER, the CONTRACTOR shall promptly, as directed, either correct al defective Work, whether or not fabricated, installed or completed, or, if the Work has been rejected by Owners Representative, remove it from the site and replace it with Work that is not defective. The CONTRACTOR shall correct or remove and replace defective Work, or submit a plan of action detailing bow the deficiency will be corrected, within the time frame identified in the notice of defective Work. The CONTRACTOR shall pay all claims, costs, losses and damages caused by or resulting from such correction or removal (including but not limited to all costs of repair or replacement of work of others). 13.7 Warranty period: 13.7.1 If at any time after the date of Substantial Completion or such longer period of time as may be prescribed by laws or regulations or by the terms of any applicable special guarantee required by the Contract Documents or by any specific provision of the Contract Documents, any Work is found to be defective, the CONTRACTOR shall promptly, without cost to the OWNER and in accordance with the OWNER's written instructions: (1) correct such defective Work, or, if it has been rejected by the OWNER, remove it from the site and replace it with Work that is not defective, and (u) satisfactorily correct or remove and replace any damage to other Work or the work of others resulting therefrom. If the CONTRACTOR does not promptly comply with the terms of such instructions, or in an emergency where delay would cause serious risk of loss or damage, the OWNER may have the defective Work corrected or the rejected Work removed and replaced, and all claims, costs, losses and damages caused by or resulting from such removal and replacement (including but not limited to all costs of repair or replacement of work of others) will be paid by the CONTRACTOR. 00700 05127/03 Page 24 General Conditions 13.7.2 In special circumstances where a particular item of equipment is placed in continuous service before Substantial Completion of all the Work, the warranty period for that item may start to run from an earlier date if so provided in the Contract Documents. 13.8 OWNER May Correct Defective Work: If the CONTRACTOR fails within a reasonable time after Written Notice of the OWNER to correct defective Work, or to remove and replace rejected Work, or if the CONTRACTOR fails to perform the Work in accordance with the Contract Documents, or if the CONTRACTOR fails to comply with any other provision of the Contract Documents, the OWNER may, after seven (7) calendar days' Written Notice to the CONTRACTOR, correct and remedy any such deficiency. If, in the opinion of Owner's Representative, significant progress has not been made during this seven (7) calendar day period to correct the deficiency, the OWNER may exercise any actions necessary to remedy the deficiency. In exercising the rights and remedies under this paragraph, the OWNER shall proceed expeditiously. In connection with such corrective and remedial action, the OWNER may exclude the CONTRACTOR from all or part of the site, take possession of all or part of the Work, and suspend the CONTRACTOR's services related thereto, and incorporate in the Work all materials and equipment stored at the site or for which the OWNER has paid the CONTRACTOR but which are stored elsewhere. The CONTRACTOR shall allow the OWNER, its agents and employees, the OWNER's other contractors, E/A and E/A's consultants access to the site to enable the OWNER to exercise the rights and remedies under this paragraph. All claims, costs, losses and damages incurred or sustained by the OWNER in exercising such rights and remedies will be charged against the CONTRACTOR and a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work. Such claims, costs, losses and damages will include but not be limited to all costs of repair or replacement of work of others destroyed or damaged by correction, removal or replacement of the CONTRACTOR's defective Work. The CONTRACTOR shalt not be allowed an extension of the Contract Times (or Milestones), or claims of damage because of any delay in the performance of the Work attributable to the exercise by the OWNER of the OWNER's rights and remedies hereunder. ARTICLE 14 - PAYMENTS TO CONTRACTOR AND COMPLETION 14.1 Application for Progress Payment: 14.1.1 Not more than once per month, the CONTRACTOR shall submit to Owner's Representative for review an Application for Payment, in a form acceptable to the OWNER, filled out and signed by the CONTRACTOR covering the Work completed as of the date of the Application and accompanied by such supporting documentation as is required by the Contract Documents. 14.1.2 Such applications shall not include requests for payment on account of changes in the Work which have been properly authorized by Charlge Directives but not yet included in Change Orders. 14.1.3 Such applications shall not include requests for payment of amounts the CONTRACTOR does not intend to pay to a Subcontractor or Supplier because of a dispute or other reason. 14.1.4 11 payment is requested on the basis of materials or equipment not incorporated in the Work but delivered and suitably stored at the site or at another location agreed to in writing, the Application for Payment shall be accompanied by such bills of sale, data and other procedures satisfactory to the OWNER substantiating the OWNER's title to such materials or equipment or otherwise protecting the OWNER's interest_ Payment on account of such materials or equipment will not include any amount for the CONTRACTOR's overhead or profit or relieve the CONTRACTOR of its obligation to protect and install such materials or equipment in accordance with the requirements of the Contract and to restore damaged or defective Work. If materials or equipment are stored at another location they shall be stored in a bonded and insured facility, accessible to E/A and the OWNER, and shall be clearly marked as property of the OWNER. 14.1.5 Where the original Contract Amount is less than $400,000, the OWNER will pay to the CONTRACTOR the total amount of approved Application for Payment, less ten percent (10 %) of the amount thereof, which ten percent (10 %) will be retained until final payment, less all previous payments and less all sums that may be retained by the OWNER under the terms of this Agreement. Where the original Contract Amount is $400,000 or more, the OWNER will pay to the CONTRACTOR the total amount of approved Application for Payment, less five percent (5 %) of the amount thereof, which five (5 %) will be retained until final payment, less all previous payments and less all sums that may be retained by the OWNER under the terms of this Agreement. In either case, if the Work is near completion and delay occurs due to no fault or neglect of the CONTRACTOR, the OWNER may pay a portion of the retained amount to the 00700 05/27103 Page 25 General Conditions CONTRACTOR. The CONTRACTOR, at the OWNER's option, may be relieved of the obligation to complete the Work and, thereupon, the CONTRACTOR shall receive payment of the balance due under the Contract subject to the conditions stated under paragraph 15.2. 14.1.6 Applications for Payment shall include the following documentation: .1 updated progress schedule; .2 monthly subcontractor report; and .3 any other documentation required under the Supplemental General Conditions_ 14.2 CONTRACTOR's Warranty of Title: The CONTRACTOR warrants and guarantees that title to all Work, materials and equipment covered by any Application for Payment, whether incorporated in the Project or not, will pass to the OWNER not later than the time of payment to the CONTRACTOR free and clear of all liens_ 14.3 Review of Applications for Progress Payment: 14.3.1 Owner's Representative will, within seven (7) calendar days after receipt of each Application for Payment, either indicate a recommendation for payment and forward the Application for processing by the OWNER, or return the Application to the CONTRACTOR indicating Owner's Representative's reasons for refusing to recommend payment. In the latter case, the CONTRACTOR may make the necessary corrections and resubmit the Application. 14.3.2 Owner's Representative's recommendation of any payment requested in an Application for Payment will constitute a representation by Owner's Representative, based upon Owner's Representative's on -site observations of the executed Work and on Owner's Representative's review of the Application for Payment and the accompanying data and schedules, that to the best of Owner's Representative's knowledge, information and belief: .1 the Work has progressed to the point indicated; and .2 the quality of the Work is in accordance with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon Substantial Completion, to the results of 00700 05/27103 Page 26 any subsequent tests called for in the Contract Documents, to a final determination of quantities and classifications for unit price Work, and to any other qualifications stated in the recommendation). 14.3.3 By recommending any such payment, Owner's Representative will not thereby be deemed to have represented that: .1 exhaustive or continuous on -site inspections have been made to check the quality or the quantity of the Work; .2 examination has been made to ascertain how or for what purpose the CONTRACTOR has used money previously paid on account of the Contract Amount; .3 the CONTRACTOR'S construction means, methods, techniques, sequences or procedures have been reviewed; or .4 that there may not be other matters or issues between the, parties that might entitle the CONTRACTOR to be paid additionally by the OWNER or entitle the OWNER to withhold payment to the CONTRACTOR. 14.4 Decisions to Withhold Payment: 14.4.1 The OWNER may withhold or nullify the whole or part of any payment to such extent as may be necessary on account of: .1 defective Work not remedied; .2 reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Amount; .3 damage to the OWNER or another contractor; .4 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, .5 failure of the CONTRACTOR to submit a schedule of values in accordance with the Contract Documents; General Conditions .6 failure of the CONTRACTOR to submit a submittal schedule in accordance with the Contract Documents; .7 failure of the CONTRACTOR to submit or update construction schedules in aaccordance with the Contract Documents; .8 failure of the CONTRACTOR to maintain a record of changes on drawings and documents; .9 failure of the CONTRACTOR to maintain weekly payroll reports; .10 failure of the CONTRACTOR to submit monthly subcontractor reports; .11 the CONTRACTOR's neglect or unsatisfactory prosecution of the Work, including failure to dean up; or .12 failure of the CONTRACTOR to comply with any provision of the Contract Documents. 14.4.2 When the above reasons for withholding payment are removed, the CONTRACTOR shall resubmit a statement for the value of Work performed. Payment will be made within thirty (30) calendar days of receipt of approved Application for Payment. 14.5 Delayed Payments: Should the OWNER fail to make payment to the CONTRACTOR of a sum named in any Application for Payment within thirty (30) calendar days after the day on which the OWNER received the mutually acceptable Application for Payment, then the OWNER will pay to the CONTRACTOR, in addition to the sum shown as due by such Application for Payment, interest thereon at the rate of one percent (1%) per month from date due until fully paid, which shall fully liquidate any injury to the CONTRACTOR growing out of such delay in payment. 14.6 Arrears: No money shall be paid by the OWNER upon any claim, debt, demand or account whatsoever, to any person, firm or corporation who is in arrears to the City of Round Rock for taxes; and the City of Round Rock shall be entitled to counterclaim and offset against any such debt, claim, demand or account in the amount of taxes so in arrears and no assignment 00700 05127103 Page 27 or transfer of such debt, claim, demand or account after said taxes are due, shall affect the right of the OWNER to so offset said taxes, and associated penalties and interest if applicable, against the same. 14.7 Substantial Completion: 14.7.1 If a Certificate of Occupancy is required by public authorities having jurisdiction over the Work, said certificate shall be issued before the Work or any portion thereof is considered substantially complete. When the CONTRACTOR considers that the Work, or a portion thereof which the OWNER agrees to accept separately, is substantially complete, the CONTRACTOR shall notify Owner's Representative and request a determination as to whether the Work or designated portion thereof is substantially complete. If Owner's Representative does not consider the Work substantially complete, Owner's Representative will notify the CONTRACTOR giving reasons therefor. Failure on the OWNER's part to list a reason does not alter the responsibility of the CONTRACTOR to complete all Work in accordance with the Contract Documents. After satisfactorily completing items identified by Owner's Representative, the CONTRACTOR shall then submit another request for Owner's Representative to determine substantial completion. If Owners Representative considers the Work substantially complete, Owner's Representative will prepare and deliver a certificate of Substantial Completion which shall establish the date of Substantial Completion, shall include a punch list of items to be completed or corrected before final payment, shall establish the time within which the CONTRACTOR shall finish the punch list, and shall establish responsibilities of the OWNER and the CONTRACTOR for security, maintenance, heat, utilities, damage to the Work, warranty and insurance. Failure to include an item on the punch list does not alter the responsibility of the CONTRACTOR to complete all Work in accordance with the Contract Documents. The certificate of Substantial Completion shall be signed by the OWNER and the CONTRACTOR to evidence acceptance of the responsibilities assigned to them in such certificate. 14.7.2 The OWNER shall have the right to exclude the CONTRACTOR from the Work after the date of Substantial Completion, but the OWNER will allow the CONTRACTOR reasonable access to complete or correct items on the punch list 14.8 Partial Utilization: Use by the OWNER, at the OWNER's option, of any substantially completed part of the Work which: (i) has specifically been identified in the Contract General Conditions Documents, or (ii) the OWNER and the CONTRACTOR agree constitutes a separately functioning and usable part of the Work that can be used by the OWNER for its intended purpose without significant interference with the CONTRACTOR's performance of the remainder of the Work, may be accomplished prior to Substantial Completion of all the Work in accordance with the following: .1 The OWNER at any time may request the CONTRACTOR to permit the OWNER to use any such part of the Work which the OWNER believes to be ready for its intended use and substantially complete. If such part of the Work is substantially complete, the CONTRACTOR shall certify to Owner's Representative that such part of the Work is substantially complete and request Owner's Representative to issue a certificate of Substantial Completion for that part of the Work. The CONTRACTOR at any time may notify Owner's Representative that the CONTRACTOR considers any such part of the Work ready for its intended use and substantially complete and request Owner's Representative to issue a certificate of Substantial Completion for that part of the Work. The provisions of paragraph 14.7.1 and paragraph 14.7.2 will apply with respect to certification of Substantial Completion of that part of the Work and the division of responsibility in respect thereof and access thereto. .2 Such partial utilization is authorized by public authorities having jurisdiction over the Work. 14.9 Final Inspection: Upon Written Notice from the CONTRACTOR that the entire Work or an agreed portion thereof is complete, Owner's Representative will make a final inspection with the CONTRACTOR and provide Written Notice of all particulars in which this inspection reveals that the Work is incomplete or defective. The CONTRACTOR shall immediately take such measures as are necessary to complete such Work or remedy such deficiencies. 14.10 Final Application for Payment: The CONTRACTOR may make application for final payment following the procedure for progress payments after the CONTRACTOR has completed all such corrections to the satisfaction of Owner's Representative and delivered the following documents: .1 Three (3) complete operating and maintenance manuals, each containing maintenance and operating instructions, schedules, guarantees, and other documentation required by the Contract Documents; .2 Record documents (as provided in paragraph 6.10); .3 Consent of surety, if any, to final payment If surety is not provided, complete and legally effective releases or waivers (satisfactory to the OWNER) of all claims arising out of or filed in connection with the Work; .4 Certificate evidencing that insurance required by the Supplemental General Conditions will remain in force after final payment and through any warranty period; .5 Non -Use of Asbestos Affidavit (After Construction); and .6 Any other documentation called for in the Contract Documents. 14.11 Final Payment and Acceptance: 14.11.1 If, on the basis of observation of the Work during construction, final inspection, and review of the final Application for Payment and accompanying documentation as required by the Contract Documents, Owner's Representative is satisfied that the Work has been completed and the CONTRACTOR's other obligations under the Contract Documents have been fulfilled, Owner's Representative will recommend the final Application for Payment and thereby notify the OWNER, who will pay to the CONTRACTOR the balance due the CONTRACTOR under the terms of the Contract. 14.11.2 As Contract Time is measured to Final Completion, Owner's Representative will issue a letter of final acceptance to the CONTRACTOR which establishes the Final Completion date and initiates any warranty period. 14.11.3 Final payment is considered to have taken place when the CONTRACTOR or any of its representatives negotiates the OWNER's final payment check, whether labeled final or not, for cash 00700 05/27/03 Page 28 General Conditions or deposits check in any financial institution for its Contract Documents prior to the monetary return. effective date of termination; 14.12 Waiver of Claims: The making and acceptance of final payment will constitute: .1 a waiver of claims by the OWNER against the CONTRACTOR, except daims arising from unsettled claims, from defective Work appearing after final inspection, from failure to comply with the Contract Documents or the terms of any warranty specified therein, or from the CONTRACTOR'S continuing obligations under the Contract Documents; and .2 a waiver of all claims by the CONTRACTOR against the OWNER other than those previously made in writing and still unsettled. ARTICLE 15 - SUSPENSION OF WORK AND TERMINATION 15.1 OWNER May Suspend Work Without Cause and for Convenience: At any time and without cause and for convenience, the OWNER may suspend the Work or any portion thereof for a period of not more than ninety (90) calendar days by written agreement or by Written Notice to the CONTRACTOR which will fix the date on which the Work will be resumed. The CONTRACTOR shall resume the Work on the date so foxed. The CONTRACTOR may be allowed an adjustment in the Contract Amount or an extension of the Contract Times, or both, directly attributable to any such suspension if the CONTRACTOR makes an approved Claim therefor as provided in Article 11 and Article 12. 15.2 OWNER May Terminate Without Cause: Upon seven (7) calendar days' Written Notice to the CONTRACTOR, the OWNER may, without cause and without prejudice to any right or remedy of the OWNER, elect to terminate the Agreement. In such case, the CONTRACTOR shall be paid (without duplication of any items): .1 for completed and acceptable Work executed in accordance with the .2 for all daims incurred in settlement of terminated contracts with Suppliers, Subcontractors, and others. The CONTRACTOR agrees to negotiate in good faith with Subcontractors, Suppliers and others to mitigate the OWNER's cost; and .3 for anticipated profits on entire Contract not previously paid. 15.3 OWNER May Terminate With Cause: 153.1 Upon the occurrence of any one or more of the following events: .1 if the CONTRACTOR persistently fails to perform the Work in accordance with the Contract Documents; .2 if the CONTRACTOR disregards laws or regulations of any public body having jurisdiction; .3 if the CONTRACTOR disregards the authority of Owner's Representative; .4 if the CONTRACTOR makes fraudulent statements; .5 if the CONTRACTOR fails to maintain a work force adequate to accomplish the Work within the Contract Time; .6 if the CONTRACTOR fails to make adequate progress and endangers successful completion of the Contract; or .7 if the CONTRACTOR otherwise violates in any substantial way any provisions of the Contract Documents; The OWNER may, after giving the CONTRACTOR (and the surety, if any) seven (7) calendar days' Written Notice terminate the services of the CONTRACTOR. The OWNER, at its option, may proceed with negotiation with surety for completion of the Work. Alternatively, the OWNER may under these circumstances exclude the CONTRACTOR from the site and take possession of the Work (without liability to the CONTRACTOR for trespass or conversion), incorporate in the Work all materials and equipment stored at the site or for which the OWNER has paid the CONTRACTOR but which are 00700 05/27103 Page 29 General Conditions stored elsewhere, and finish the Work as the OWNER may deem expedient. In such case the CONTRACTOR shall not be entitled to receive any further payment until the Work is finished. If the unpaid balance of the Contract Amount exceeds all claims, costs, losses and damages sustained by the OWNER arising out of or resulting from completing the Work, such excess will be paid to the CONTRACTOR If such claims, costs, losses and damage exceed such unpaid balance. the CONTRACTOR or surety shall pay the difference to the OWNER. 15.3.2 Where the CONTRACTOR's services have been so terminated by the OWNER, the termination will not affect any rights or remedies of the OWNER against the CONTRACTOR and surety then existing or which may thereafter accrue. Any retention or payment of amounts due the CONTRACTOR by the OWNER will not release the CONTRACTOR from liability. In the event the OWNER terminates the Contract with cause, the OWNER may reject any and all bids submitted by the CONTRACTOR for up to three (3) years. 15.4 CONTRACTOR May Stop Work or Terminate: If through no act or fault of the CONTRACTOR, the Work is suspended for a period of more than ninety (90) calendar days by the OWNER or under an order of court or other public authority, or (except during disputes) Owner's Representative fails to forward for processing any mutually acceptable Application for Payment within thirty (30) calendar days after it is submitted, or (except during disputes) the OWNER fails for sixty (60) calendar days after it is submitted to pay the CONTRACTOR any sum finally determined by the OWNER to be due, then the CONTRACTOR may, upon seven (7) calendar days' Written Notice to the OWNER, and provided the OWNER does not remedy such suspension or failure within that time, terminate the Agreement and recover from the OWNER payment on the same terms as provided in paragraph 15.2. In lieu of terminating the Agreement and without prejudice to any other right or remedy, if (except during disputes) Owner's Representative has failed to forward for processing any mutually acceptable Application for Payment within thirty (30) calendar days after it is submitted, or (except during disputes) the OWNER has failed for sixty (60) calendar days after it is submitted to pay the CONTRACTOR any sum finally determined by the OWNER to be due, the CONTRACTOR may upon seven (7) calendar days' Written Notice to the OWNER stop the Work until payment of all such amounts due the CONTRACTOR, including interest thereon. The provisions of this paragraph 15.4 are not intended to preclude the CONTRACTOR from making a Claim under Article 11 and Article 12 for an increase in Contract Amount or Contract Times or otherwise for expenses or damage directly attributable to the CONTRACTOR's stopping Work as permitted by this paragraph. ARTICLE 16 - DISPUTE RESOLUTION 16.1 Filing of Claims: 16.1.1 Claims arising from the circumstances identified in paragraphs 3.2, 4.1, 4.2.2, 4.2.4, 6.4.2, 6.11.5.2, 6.17, 7.5, 8.6, 9.5, 10.4.2, 13.8, 15.1, 15.2, 15.3, or 15.4, or other occurrences or events, shall be made by Written Notice delivered by the party making the Claim to the other party within thirty (30) calendar days after the start of the occurrence or event giving rise to the Claim and stating the general nature of the Claim. Notice of the amount of the Claim with supporting data shall be delivered within thirty (30) calendar days after Written Notice of Claim is delivered by claimant and shall represent that the adjustment claimed covers all known amounts to which claimant is entitled. 16.1.2 Within thirty (30) calendar days of receipt of notice of the amount of the Claim with supporting data, Owner's Representative and the CONTRACTOR shall meet to discuss the Claim, after which an offer of settlement or notification of no settlement offer will be made to claimant. If claimant is not satisfied with the proposal presented, claimant shall have thirty (30) calendar days in which to: .1 submit additional supporting data requested by the other party, .2 modify the initial Claim; or .3 request Alternative Dispute Resolution. 16.2 Alternative Dispute Resolution: 16.2.1 If a dispute exists concerning a Claim, the parties agree to use the following procedure prior to pursuing any other available remedies. The OWNER reserves the right to include E/A as a party. 16.2.2 Negotiating with Previously Uninvolved Personnel: Either party may make a written request for a meeting to be held between representatives of each party within fourteen (14) calendar days of the request or such later period that the parties may agree to. Each party shall endeavor to include, at a minimum, one (1) previously uninvolved senior level decision maker empowered to negotiate on behalf of 00700 05/27/03 Page 30 General Conditions their organization. The purpose of this and subsequent meetings will be good faith negotiations of the matters constituting the dispute. Negotiations shall be concluded within thirty (30) calendar days of the first meeting, unless mutually agreed otherwise. This step may be waived by written agreement of both parties, in which event the parties may proceed directly to mediation as described below. 16.2.3 Mediation: 16.2.3.1 If the procedure described in paragraph 16.2.2 proves unsuccessful or is waived pursuant to its terns, the parties shall initiate the mediation process. The parties agree to select within thirty (30) calendar days one (1) mediator trained in mediation skills, to assist with resolution of the dispute. The OWNER and the CONTRACTOR agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in this agreement prevents the parties from relying on the skills of a person who also is trained in the subject matter of the dispute and /or a contract interpretation expert. 16.2.3.2 Mediation is a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them. The parties hereby agree that mediation, at a minimum, shall provide for 1) conducting an on -site investigation, if appropriate, by the mediator for fact- gathering purposes, 2) a meeting of all parties for the exchange of points of view and 3) separate meetings between the mediator and each party to the dispute for the formulation of resolution alternatives. The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session, unless mutually agreed otherwise. Should the parties fail to reach a resolution of the dispute through mediation, then each party is released to pursue other remedies available to them. ARTICLE 17 - MISCELLANEOUS 17.1 Venue: In the event of any suit at law or in equity involving the Contract, venue shall be in Williamson County, Texas and the laws of the state of Texas shall apply to Contract interpretation and enforcement. 17.2 Extent of Agreement: This Contract represents the entire and integrated agreement between the OWNER and the 00700 05127/03 Page 31 CONTRACTOR and supersedes all prior negotiations, representations or agreements, either written or oral. 17.3 Cumulative Remedies: The rights and remedies available to the parties are not to be construed in any way as a limitation of any rights and remedies available to any or all of them which are otherwise imposed or available by laws or regulations, by special warranty or guarantees or by other provisions of the Contract Documents, and the provisions of this paragraph will be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right and remedy to which they apply. 17.4 Severability: If any word, phrase, clause, sentence or provision of the Contract, or the application of same to any person or set of circumstances is for any reason held to be unconstitutional, invalid or unenforceable, that finding shall only effect such word, phrase, clause, sentence or provision, and such finding shall not effect the remaining portions of this Contract; this being the intent of the parties in entering into the Contract; and all provisions of the Contract are declared to be severable for this purpose. 17.5 Independent Contractor The Contract shall not be construed as creating an employer /employee relationship, a partnership, or a joint venture. The CONTRACTOR's services shall be those of an independent contractor. The CONTRACTOR agrees and understands that the Contract does not grant any rights or privileges established for employees of the OWNER. 17.6 Prohibition of Gratuities The OWNER may, by Written Notice to the CONTRACTOR , terminate the Contract without liability if is determined by the OWNER that gratuities were offered or given by the CONTRACTOR or any agent or representative of the CONTRACTOR to any officer or employee of the OWNER with a view toward securing the Contract or securing favorable treatment with respect to the awarding or amending or the making of any determinations with respect to the performing of such Contract. In the event the Contract is terminated by the OWNER pursuant to this provision, the OWNER shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by the CONTRACTOR in providing such gratuities. General Conditions 17.7 Prohibition Against Personal Interest in Contracts No officer, employee, independent consultant, or elected official of the OWNER who is involved in the development, evaluation, or decision- making process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any violation of this provision, with the knowledge, expressed or implied, of the CONTRACTOR shall render the Contract voidable by the OWNER. End of General Conditions 00700 05/27/03 Page 32 General Conditions DATE: June 13, 2003 SUBJECT: Special Called City Council Meeting — June 16, 2003 ITEM: 3.A. Consider a resolution authorizing the Mayor to execute a Construction Manager -at -Risk contract with Brath, Inc. for the Old Settlers Park at Palm Valley Soccer Restroom/Concession /Storage Facility Project. Resource: Sharon Prete, Parks and Recreation Director M. James Hemenes, RLA, ASLA, Park Planner History: This Old Settlers Park at Palm Valley (OSPV) Soccer Restroom/ Concession/Storage Facility Project is a project identified through the 2001 Bond Program and other needs assessments. After discussions with the leagues that utilize the soccer facilities at OSPV, it was determined that the greatest need is for a Restroom/Concession/ Storage Facility. Through the approved process for selection of a Construction Manager -at -Risk, Brath, Inc. was selected as such. Funding: Cost: $262,484.00 Guaranteed Maximum Price Source of Funds: General Capital Improvement Project Funds Outside Resources: Brath, Inc. Impact/Benefit: Public Comment: N/A This contract will provide for the Construction Management -at -Risk and the construction of the Old Settlers Park at Palm Valley (OSPV) Soccer Restroom/Concession/Storage Facility Project. Sponsor: Parks and Recreation Department THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES: CONSULTATION WITH AN ATTORNEY 15 ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION. AUTHENTICATION OF THIS ELECTRONICALLY DRAFTED AIA DOCUMENT MAY BE MADE BY USING AIA DOCUMENT D401. The 1987 Edition of AIA Document A201, General Conditions of the Contract for Construction, is referred to herein. This Agreement requires modification if other general conditions are utilized. Portions of this document are derived from AIA Document A111, Standard Form of Agreement Between the Owner and Contractor where the Basis of Payment is the Cost of the Work Plus a Fee, copyright 1920, 1925, 1957, 1958, 1961, 1963, 1967, 1974, 1978, 0 1987 by The American Institute of Architects; other portions are derived from AGC Document 500. Copyright 1980 by The Associated General Contractors of American. Material in this document differing from that found in AIA Document AItI and AGC Document 500 is copyrighted 1991 by The American Institute of Architects and The Associated General Contractors of America. Reproduction of the material herein or substantial quotation of its provisions without written permission of AIA and AGC violates the copyright laws of the United States and will subject the violator to legal prosecution. AGREEMENT /1 made as of the / day of J MAXI_ in the year of 2003. (In words, indicate day, month and year) BETWEEN the Owner: (Name and address) City of Round Rock 221 East Main Street Round Rock, Texas 78664 and the Construction Manager: (Name and address) Brath. Inc. 600 IH 35 South Round Rock. Texas 78681 AIA Document A22i /CMc and AGC Document 565 Standard Form of Agreement Between Owner and Construction Manager where the Construction Manager is also THE CONSTRUCTOR 1991 Edition- Electronic Format The Project is: (Name, address and brief description) Construction of new restroom/concesslon /storage facilities located at Old Settlers Park at Palm Valley' project variously referred to as "City of Round Rock Soccer Field Facilities" or as "City of Round Rock Soccer Restroom and Other Facilities at Old Settlers Park at Palm Valley": proiect to be new construction of a concession /storage and toilet facility with approximately 1.600 square feet. The Architect is: (Name and address) Moman Architects 309 West Main Street Suite 120 Round Rock. Texas 78664 0 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21 /CMC AND AGC DOCUMENT 565 - OWNER - CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - 0 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia -- 6/13/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21 /CMc -1991 ARTICLE 1 1.1 1.2 ARTICLE 2 2.1 2.2 2.3 2.4 2.5 ARTICLE 7 7.1 7.2 ARTICLE 9 9.1 9.2 9.3 GENERAL PROVISIONS Relationship of Parties General Conditions TABLE OF CONTENTS CONSTRUCTION MANAGER'S RESPONSIBILITIES Preconstruction Phase Guaranteed Maximum Price Proposal; and Contract Time Construction Phase Professional Services Unsafe Materials ARTICLE 3 OWNER'S RESPONSIBILITIES 3.1 Information and Services 3.2 Owner's Designated Representative 3.3 Architect 3.4 Legal Requirements ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES 4.1 Compensation 4.2 Payments ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES 5.1 Compensation 5.2 Guaranteed Maximum Price 5.3 Changes in the Work ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE 6.1 Cost of the Work 6.2 Deleted 6.3 Discounts, Rebates and Refunds 6.4 Accounting Records CONSTRUCTION PHASE Progress Payments Final Payment ARTICLE 8 INSURANCE AND BONDS 8.1 -8.9 By Addendum 8.10 Performance Bond and Payment Bond MISCELLANEOUS PROVISIONS Dispute Resolution for the Preconstruction Phase Dispute Resolution for the Construction Phase Other Provisions ARTICLE 10 TERMINATION OR SUSPENSION 10.1 Termination Prior to Establishing Guaranteed Maximum Price 10.2 Termination Subsequent to Establishing Guaranteed Maximum Price 10.3 Suspension ARTICLE 11 OTHER CONDITIONS AND SERVICES 11.1 One Guaranteed Maximum Price 11.2 Punch List 11.3 Limitation on Construction Manager's Responsibility to Repair /Replace 11.4 Liquidated Damages 11.5 Warranties Attachments: AMENDMENT NO. 1 to Agreement Between Owner and Construction Manager ADDENDUM NO. 1 to Standard Form of Agreement and Addendum to General Conditions GENERAL CONDITIONS Standard Form of Agreement Between Owner and Construction Manager Where the Construction Manager is also the Constructor ARTICLE 1 GENERAL PROVISIONS 1.1 RELATIONSHIP OF PARTIES The Construction Manager accepts the relationship of trust and confidence established with the Owner by this Agreement, and covenants with the Owner to furnish the Construction Manager's reasonable skill and judgment and to cooperate with the Architect in furthering the interests of the Owner. 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 Owner. The Owner shall endeavor to promote harmony and cooperation among the Owner, Architect, Construction Manager and other persons or entities employed by the Owner for the Project. 1.2 GENERAL CONDITIONS Fee -the -Construction Ph ^ -e, -the -General -Conditions of -the Contract -shall -be -the — -Edition -e -MA - Document -9aet General-Gettditienss-ef4he Contract- feF-Goristructionr‘vhich-is- incorporated - herein -by -reference, -Fee -the - Precenstructien Phase; - Or -in -the event -that -the -P ion and Construction - Phases - proceed -concurrently, -MA Aaae -shall -apply 4e -the - Precensttuctien -Phase -only as specifically-provided in this " ^ h e_ G entracter as -used -in -MA C -Asor shall - mean -the Construction Manager. 1.2.1 All references in this Agreement to "AIA 201 Standard General Conditions to the Contract" shall mean the Citv of Round Rock's General Conditions, which are attached hereto and made a part hereof. 1.2.2 The term "Contractor" as used in anv AIA document shall mean the Construction Manager. ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES The Construction Manager shall perform the services described in this Article. The services to be provided under Paragraphs 2.1 and 2.2 constitute the Preconstruction Phase services. If the Owner and Construction Manager agree, after consultation with the Architect, the Construction Phase may commence before the Preconstruction Phase is completed, in which case both phases shall proceed concurrently. 2.1 PRECONSTRUCTION PHASE 2.1.1 PRELIMINARY EVALUATION The Construction Manager shall provide a preliminary evaluation of the Owners program and Project budget requirements, each in terms of the other. 2.1.2 CONSULTATION The Construction Manager with the Architect shall jointly schedule and attend regular meetings with the Owner and Architect. The Construction Manager shall consult with the Owner 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 Subparagraph 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 Owner's approval. The Construction Manager shall -obtain -the Architect's approval -of - the -portion-of -the -preliminary -Project -schedule relating 4e -the -performance -of the Architect's s mires. The Construction Manager shall coordinate and integrate the preliminary Project schedule with the services and activities of the Owner, 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, Owner'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 - net -be -meh -She - Construction Manager shall make appropriate recommendations ae -the -Owner and Architect. 244 RHASED QON5TRnr-TIO ® 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21 /CMC AND AGC DOCUMENT 565 - OWNER - CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - ® 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the dale of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia — 6/13/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al2VCMc -1991 Owner and Architect -regarding 4he -phased issuance of Drawings -end -Specifications -to -facilitate -phased conctfactien nf-he -Work 5 - ifsueh i appop�r the Project,' -into -consideration -such factor - as-economies, timeaf per orm a nce, availability -of- laborand-materialsrand 2.1.5 PRELIMINARY COST ESTIMATES 2.1.5.1 When the Owner 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 Owner, a preliminary cost estimate utilizing area, volume or similar conceptual estimating techniques. 2.1.5.2 When Schematic Design Documents have been prepared by the Architect and approved by the Owner, the Construction Manager shall prepare for the review of the Architect and approval of the Owner, 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 Owner, Architect and Construction Manager. 2.1.5.3 When - Design -Development dents -have -been prepared -by -the - Archileet and -approved by -the -Owner, 4he Censtruction - Manager shall - prepare -a -detailed -estimate -with Owner: - During -the - preparation -of -the truetien this egi„ ateatappropriate- intervalsagreedte -bylhe Owner,- 2.1.5.4 If any estimate submitted to the Owner exceeds previously approved estimates or the Owners budget, the Construction Manager shall make appropriate recommendations to the Owner and Architect. 2.1.6 SUBCONTRACTORS AND SUPPLIERS The Construction Manager shall seek to develop subcontractor interest in the Project and shall furnish to the Owner 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 Owner know of any objection to such subcontractor or supplier. The receipt of such list shall not require the Owner or Architect to investigate the qualifications of proposed subcontractors or suppliers, nor shall it waive the right of the Owner or Architect later to object to or reject any proposed subcontractor or supplier. 2.1.6.1 Subcontractors and suppliers shall be selected in accordance with paragraphs 2.3.2.1. 2.3.2.2 and 2.3.2.3 herein. 2.1.7 LONG -LEAD TIME ITEMS The Construction Manager shall recommend to the Owner and Architect a schedule for procurement of long -lead time items which will constitute part of the Work as required to meet the Project schedule. If such long -lead time items are procured by the Owner, they shall be procured on terms and conditions acceptable to the Construction Manager. Upon the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal, all contracts for such items shall be assigned by the Owner 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. 2.1.8 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 Owner and the Owner'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 Owner in writing. 2.1.9 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. 2.2 GUARANTEED MAXIMUM PRICE PROPOSALi AND CONTRACT TIME Contract Time /Completion Dates: Contract Time is a crucial element of the Project; therefore. Completion Dates are not subject to change. Substantial Completion Date: The Substantial Completion Date for the Project is September 7. 2003. Priority: This provision shall have priority over any other provision to the contrary in this Agreement the General Conditions. or any associated document. 2.2.1 When the Drawings and Specifications are sufficiently complete, the Construction Manager shall propose a Guaranteed Maximum Price, which shall be the sum of the ® 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAI21 /CMC AND AGC DOCUMENT 565 - OWNER - CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - 0 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5201 WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia -- 6/17/2001 AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21/CMc -1991 gstimated Cost of the Work and the Construction Manager's Fee. 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 include the Construction Manager's contingency, a sum established by the Construction Manager for the Construction Manager's exclusive use to cover costs arising under Subparagraph 2.2.2 and other costs which are properly reimbursable as Cost of the Work but not the basis for a Change Order. 2.2.4 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: .1 A list of the Drawings and Specifications, including all addenda thereto and the Conditions of the Contract, which were used in preparation of the Guaranteed Maximum Price proposal. .2 A list of allowances and a statement of their basis. .3 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. .4 The proposed Guaranteed Maximum Price, including a statement of the estimated cost organized by trade categories, allowances, contingency, and other items and the fee that comprise the Guaranteed Maximum Price. .5 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. 2.2.5 The Construction Manager shall meet with the Owner and Architect to review the Guaranteed Maximum Price proposal and the written statement of its basis. In the event that the Owner or Architect discovers any inconsistencies or inaccuracies in the information presented, they shall promptly notify the Construction Manager, who shall make appropriate adjustments to the Guaranteed Maximum Price proposal, its basis or both. 2.2.6 Unless the Owner 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. 2.2.7 Prior to the Owner'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 except as the Owner may specifically authorize in writing. 2.2.8 Upon acceptance by the Owner of the Guaranteed Maximum Price proposal, the Guaranteed Maximum Price and its basis shall be set forth in Amendment No.t. 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 -el Substantial Getnpletiert - shall -be - subject 4e 2.2.9 The Owner 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 Owner, Architect and Construction Manager. The Construction Manager shall promptly notify the Architect and Owner if such revised Drawings and Specifications are inconsistent with the agreed - upon assumptions and clarifications. 2.2.10 The Guaranteed Maximum Price shall include in the Cost of the Work only those taxes which are enacted at the time the Guaranteed Maximum Price is established. 2.3 CONSTRUCTION PHASE 2.3.1 GENERAL 2.3.1.1 The Construction Phase shall commence on the earlier of (1) the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a Notice to Proceed, or (2) the Owner's first authorization to the Construction Manager to: (a) award a subcontract, or (b) undertake construction Work with the Construction Manager's own forces, or (c) issue a purchase order for materials or equipment required for the Work 2.3.2 ADMINISTRATION ® 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21 /CMC AND AGC DOCUMENT 565 - OWNER - CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® AGC - ® 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia -- 6/13/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21ICMc -1991 ?-3.2. } Tbese - portions .ef -the -Work -that -the -Construction }vtanager -does -net customarily- perform- with-t-ke_Construction Managers -own -personnel shall -be - performed -under s.. @contracts -Of -by -other - appropriate agreements with -the bids -€rem Suheentradters sad -from - suppliers a€- materials list - previously -reviewed -and after analysing such -bids, shall deliversuehkids-te-the Q wner _..d_ a . _chi Tr.,. n......._ shall then de mine with-the advice -of- heCeastnxliea- Manager. and -subject to the- reasonable-objection-ef-the Architect,-which- bids -will lie accepted: the $caner may -designate - specific persons obtain ids- hewevee, if - the Maximum-Price -has Con ctructieen - Manager -shall-net -be -required -te contract -with anyone 40 whom 4he Contraction Manager -has -reasonable objection. 2.3.2.1 The Construction Manager shall publicly advertise (in accordance with Texas Local Government Code, Section 271.025) and solicit either competitive bids or competitive sealed proposals from trade contractors and /or subcontractors for the performance of all elements of the Work. other than minor work that may be included in the General Conditions. all in accordance with Texas Local Govemment Code, Section 271.118(h). The Construction Manager may seek to perform portions of the Work in the same manner as all other trade contractors and /or subcontractors. The Construction Manager and the Owner or its representative shall receive and open all bids and proposals in a manner that does not disclose the contents during the selection process. All bids and proposals shall be made public after the award of the contract or not later than seven (7) days after final selection. whichever date is later. all in accordance with Texas Local Government. Section 271.118(1). 2 If -the -Guaranteed - Maximum -Price -has -been established-and -a -specific-i fie -bielderamong - these - whose -bids are - delivered -by - the - Gonct£uction -Manager 4e -the 4Dvner and Architect -(i) -is - recommended 4e -the -Owner -by -the Construction- Manager (2) is qualified 40- perform-rhat$aeHens of -the -Wer1F 43-)-has -submitted a -bid - wlrielr conforms-te the requirements-ef- theGentraet-Beeuwmnts- without - reservations Of exceptions, -but -the -Owner - requires -that another kid lie accepted -then -the -Contraction manager -may - require -that a ehauge- in-the- Weak- be- issued-adjust theGuaranteed- h4annimum Price by-the- difference-betweea-the bi4 the perserrer - recemmended4e-the - Ownerky4he- Gens1ruction - Manager and 4he ameunt -of -the subc o ntraet -er ether agreement actually - signed -with -the - person -OF entity 2.3.2.2 If the Construction Manager reviews. evaluates. and recommends to the Owner a bid or proposal but the Owner requires that another bid or proposal be accepted. the Owner shall issue a change order for a change in price or GMP for additional cost or risk that the Construction Manager may incur as a result of the Owners requirement that another bid or proposal be accepted. all in accordance with Texas Local Government Code. Section 271.1181)). 2.3.2.3 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated to a special design shall conform to the payment provisions of Subparagraphs 7.1.8 and 7.1.9 and shall not be awarded on the basis of cost plus a fee without the prior consent of the Owner. 2.3.2.4 The Construction Manager shall schedule and conduct meetings at which the Owner, Architect, Construction Manager and appropriate Subcontractors can discuss the status of the Work. The Construction Manager shall prepare and promptly distribute meeting minutes. 2.3.2.5 Promptly after the Owner's acceptance of the Guaranteed Maximum Price proposal, the Construction Manager shall prepare a schedule in accordance with Paragraph AIA Document Amt., including the Owner's occupancy requirements. 2.3.2.6 The Construction Manager shall provide monthly written reports to the Owner 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 Owner may reasonably require. The log shall be available to the Owner and Architect. 2.3.2.7 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 Owner and Architect at regular intervals. 2.4 PROFESSIONAL SERVICES The Construction Manager 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 Construction Manager has specifically agreed in writing to provide such services. In such event, the Construction Manager shall cause such services to be performed by appropriately licensed professionals. 2.5 UNSAFE MATERIALS In addition to the provisions of Paragraph -aer 40 AIA Document Axot, if reasonable precautions will be inadequate to 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21/CMC AND AGC DOCUMENT 565 - OWNER -CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - ® 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia -- 6/13/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21 /CMc -1991 prevent foreseeable bodily injury or death to persons resulting 'from a material or substance encountered but not created on the site by the Construction Manager, the Construction Manager shall, upon recognizing the condition, immediately stop Work in the affected area and report the condition to the Owner and Architect in writing. The Owner, Construction Manager and Architect shall then proceed in the same manner described in Subparagraph 10.1.z-of AIA Document Azo1. The Owner shall be responsible for obtaining the services of a licensed laboratory to verify the presence or absence of the material or substance reported by the Construction Manager and, in the event such material or substance is found to be present, to verify that it has been rendered harmless. Unless otherwise required by the Contract Documents, the Owner shall furnish in writing to the Construction Manager and Architect the names and qualifications of persons or entities who are to perform tests verifying the presence or absence of such material or substance or who are to perform the task of removal or safe containment of such material or substance. The Construction Manager and Architect will promptly reply to the Owner in writing stating whether or not either has reasonable objection to the persons or entities proposed by the Owner. If either the Construction Manager or Architect has an objection to a person or entity proposed by the Owner, the Owner shall propose another to whom the Construction Manager and Architect have no reasonable objection. ARTICLE 3 OWNER'S RESPONSIBILITIES 3.1 INFORMATION AND SERVICES 3.1.1 The Owner shall provide full information in a timely manner regarding the requirements of the Project, including a program which sets forth the Owner's objectives, constraints and criteria, including space requirements and relationships, flexibility and expandability requirements, special equipment and systems, and site requirements. 34,2 The -Owne -upon -vvfittea - request -from -he construction Manager, shall -furnish - evidence -of Projcct time -te - time 13e_aes -as -he Construction -Manager -may request: -Furnishing -of such -evidence shall -be a condition 3.1.3 The Owner 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 Owner. 3.1.4 STRUCTURAL AND ENVIRONMENTAL TESTS, SURVEYS AND REPORTS In the Preconstruction Phase, the Owner shall furnish the following with reasonable promptness and at the Owner's expense, and the Construction Manager shall be entitled to rely upon the accuracy of any such information, reports, surveys, drawings and tests described in Clauses 3.5.4.1 through 3.5.4.4, except to the extent that the Construction Manager knows of any inaccuracy: 3.1.4.1 Reports, surveys, drawings and tests concerning the conditions of the site which are required by law. 3.1.4.2 Surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; adjacent drainage; rights -of -way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data pertaining to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All information on the survey shall be referenced to a project benchmark. 3.1.4.3 The services of geotechnical engineers when such services are requested by the Construction Manager. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and resistivity tests, including necessary operations for anticipating subsoil conditions, with reports and appropriate professional recommendations. 3.1.4.4 Structural, mechanical, chemical, air and water pollution tests, tests for hazardous materials, and other laboratory and environmental tests, inspections and reports which are required by law. 3.1.4.5 The services of other consultants when such services are reasonably required by the scope of the Project and are requested by the Construction Manager. 3.2 OWNER'S DESIGNATED REPRESENTATIVE The Owner shall designate in writing a representative who -shall- have cxpres • -authority -to -bind -the -Owner - with - respect -to all matters requiring -thus -appeo t-ef -a therization This - representative -shall -have the authority 40 -make -decision -en - behalf -of -the -Owner concerning -estimates and schedules, eenctfuctien -budgets, and - changes -in -the -Work and -shall render such -decisions - promptly and - Crwntislt - information expeditieusty ,seas-toaeeid-unreasenable.delay i .r_ es ee- oek-of-1heGenstfuctien- Manager. in accordance with the City of Round Rock's General Conditions. 3.3 ARCHITECT The Owner shall retain an Architect to provide the Basic Services, including normal structural, mechanical and electrical engineering services, other than cost estimating services, described in the edition of AIA Document Bret current as of the date of this Agreement. and as modified by the Owner. The ® 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21/CMC AND AGC DOCUMENT 565 - OWNER - CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - 0 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates V.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia — 6/13/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21 /CMc -1991 Owner shall authorize and cause the Architect to provide those Additional Services described in AIA Document B141 requested by the Construction Manager which must necessarily be provided by the Architect for the Preconstruction and Construction Phases of the Work. Such services shall be provided in accordance with time schedules agreed to by the Owner, Architect and Construction Manager. Upon request of the Construction Manager, the Owner shall furnish to the Construction Manager a copy of the Owner's Agreement with the Architect, from which compensation provisions may be deleted. 4.1 COMPENSATION ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES The Owner shall compensate and make payments to the Construction Manager for Preconstruction Phase services as follows: 4.1.1 For the services described in Paragraphs 2.1 and 2.2 the Construction Manager's compensation shall be calculated as follows: (State basis ofcompensation, whether a stipulated sum, multiple at PersonneiErpense, actual cosi, etc Include a statement ofreimbursabie cost items as applicable.) The basis of compensation for Preconstruction Phase Services is the sum of $5.000.00. which is included in the Guaranteed Maximum Price. 44.2 Gempensation -fee Preeenstructi n Phase •ervieesshall-be cquitablyadjusted- ifsueh se eee4xtend-beyend- ao„ tea.- aa e.o€- 4,1,3 -a ' - as-the-ctireot-sa-laeies of - the- Geneta3>Etienwager's -pefsennel -engaged -in -the -1 -and -the -poitien -of -the -cost -of -theif mandatory and customary. eentributions -and -benefits - related4therete -as -employment -taxes -and -ether -statutefy employee benefits, - insuranse -sick - leave-,- 4.2 PAYMENTS 3.4 LEGAL REQUIREMENTS The Owner shall determine and advise the Architect and Constmction Manager of any special legal requirements relating specifically to the Project which differ from those generally applicable to construction in the jurisdiction of the Project. The Owner shall furnish such legal services as are necessary to provide the information and services required under Paragraph 3.1. 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) days from the date the Construction Manager's invoice is received by the Owner. Amounts unpaid after the date on which payment is due shall bear interest at the rate entered below, or in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located. (Insert rate of interest agreed p n.) One percent (1 %) per month. (Usury laws and requirements under the Federal Truth in Lending Act, similar state and local consumer credit laws and other regulations at the Owners and Construction Managers principal places of business, the location of the Project and elsewhere may affect the validity of this provision. Legal advice should be obtained with respect to deletions ormod 1cationa and also regarding requirements such as written disclosures or waivers) ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES The Owner shall compensate the Construction Manager for Construction Phase services as follows: 5.1 COMPENSATION 5.1.1 For the Construction Manager's performance of the Work as described in Paragraph 2.3, the Owner shall pay the Construction Manager in current funds the Contract Sum consisting of the Cost of the Work as defined in Article 7 and the Construction Manager's Fee determined as follows: e 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1/35 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292- AIA DOCUMENT AIAl21 /CMC AND AGC DOCUMENT 565 - OWNER- CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - ® 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209- WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia -- 6/13/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21 /CMc -1991 Nate alurnp sum, percentage of actual Cost of the Work or other provision for determining the Constructi Manager's Fee, and explain how the Construction Manager3 Fee is to be adjusted for changes in the Work.) The amount which shall be paid to the Construction Manager for Construction Manager's Fee shall be 4.95% multiplied by the total Oost of the Work. 5.1.2 The amount which shall be paid to the Construction Manager for all insurance and bonding. including but not limited to Builder's Risk Insurance for the Cost of the Work. Owner's Protective /O.C.P. Insurance for the Cost of the Work. General Liability and Umbrella Insurance for the Cost of the Work, and Bond Premium for the Cost of the Work {100% payment and performance bonds). shall be 2.9% multiplied by the total Cost of the Work. 5.1.3 The amount which shall be paid to the Construction Manager for all General Conditions that may be reasonably anticipated for this Proiect, including but not limited to full -time site supervision. field engineering. field office. safety. small tools ice water and cups. telephone and fax service. storage buildings. sanitary facilities, waste containers temporary electrical power temporary water service. r3roiect sinnage. barricades and lights. temporary fencing. general cleanup. as- built drawings. and scheduling. shall be $385.97r er day. 5.2 GUARANTEED MAXIMUM PRICE 5.2.1 The sum of the Cost of the Work and the Construction Manager's Fee 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 Owner. (Insert speci &c provisions if the Construction Manager is to participate in any savings.) 5.2.2 The GMP may be revised from time to time by additive or deductive change orders. The Final GMP shall be the GMP as set forth in Amendment No. 1 plus/minus change orders. 5.2.3 The final amount to be paid to the Construction Manager for the work performed pursuant to this Agreement shall be an amount not greater than the Final GMP. 5.2.4 The sum of $5.000.00 for Preconstruction Phase Services is understood to be included in the Guaranteed Maximum Price. 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 Subparagraph-of ALA Document A2o1. 5.3.2 In calculating adjustments to subcontracts (except-theseawarded- with - the - Owner's -priev -Ee sent-on- the-hasis.of-eest -pluses Fee), the terms "cost" and "fee" as used in clause 7. 3.3.3-of AIA Document A2o1 and the terms "costs" and "a reasonable allowance for overhead and profit" as used in Subparagraph-73,6-of AIA Document A2or shall have the meanings assigned to them in that document and shall not be modified by this Article 5. 5.3.3 In calculating adjustments to the Contract, the terms "cost" and "costs" as used in the above-referenced-previsions-el AIA Document Arm shall mean the Cost of the Work as defined in Article 6 of this Agreement and the terms and a reasonable allowance for overhead and profit" shall mean the Construction Manager's Fee as defined in Subparagraph 5.1.1 of this Agreement. 5.3.4 If no specific provision is made in Subparagraph 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 Subparagraph 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. ® 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21 /CMC AND AGC DOCUMENT 565 - OWNER - CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - 0 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia -- 6/13/2003. AIA License Number 1009596, which expires on 5/29)2004. Electronic Formal Al2VCMc -1991 9 6.1 POSTS TO uE REIMBURSED COST OF THE WORK 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 Owner. The Cost of the Work shall include only the items set forth in this Article 6. 6,1-1 L eBO�cTS .3 .4 1 ALages-e€ .3 Wages or salaries of � h,. O vine ' ag ""enL ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE 6.1.3 SUBCONTRACT COSTS Payments made by the Construction Manager to Subcontractors m accordance with the requirements of the subcontrads. 6.1.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED CONSTRUCTION .1 Costs, including transportation, of materials and equipment incorporated or to be incorporated in the completed construction. .2 Costs of materials described in the preceding Clause 6.1.4.1 in excess of those actually installed but required to provide reasonable allowance for waste and for spoilage. Unused excess materials, if any, shall be handed over to the Owner at the completion of the Work or, at the Owner's option, shall be sold by the Construction Manager, amounts realized, if any, from such sales shall be credited to the Owner as a deduction from the Cost of the Work. ,7... ens ,r. o f t h e W ...,.1 a t t h e c i .ith .4 Costs isieluding sport ation ,- installation,-maintenance, -dismantling -and -removal -of - materialss-supplies3lemper-arf facilities and -hand -provided- Stith 4tems -if -not -fully -con ume- a,whether-sold ethers er -eetained- by-the -GORStRIC44011 Manager. Cost -for items .2 Rental workers ,- whichare- previded- by-the - he-site,-whethee- rented -front i ethers,-and costs -ef Iranspertation,stallatio miner repairsnd� dismantlingand- rerne\al thereof. Rates - in ,- a 1. ® 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1/35 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006.5292. AIA DOCUMENT AIAl21/CMC AND AGC DOCUMENT 565 - OWNER - CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - ® 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document version 2a121cmc.aia -- 6/132003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21/CMc -1991 t .4 Iteproductioniests costssf - facsimile - transmissions and -long-distance -telephone calls, - pestage-and express .5. That -pertien-ef- the- reasenable-travel- and subsiTtctcnce expenses -efthe Construction- ManagerT l- incurred -while :k. 6-7-6 r 1SCEL HEOIrS COSTS • .2 Sales -use of -similar taxes -imposed -by -a - governmental -authority -which are - related 4o -the -Work and - for -which -the - €eesandassessments -for- he -hail ding- pefmitand- fof-othef- persritsr- 1iEensesand- inspections- fef- wbiEh4he- Contraction A € ees- ef-testing- lahefateries -fef- tests - required -by- the- Gentract-Documentsaxeept-there- related4e-nencenforming-Wefk- the - East- ef-defending-suitssf claims -fer -infringement-of -patent -e -ether - iWelleetual- property- rights -arising -from such nequirement-bythe Contract- payments- made- in- accordanEe- with-legal- judgmentsagainst-the Contraction. Manager -resulting -from -such -suits -sr claims -and -payments af t -el -settlements-made-with -the Owner's tement;- provided however , - hat -such -costs -of -legal -defenses -judgments -and -settlements -shall mot -be -ineluded -in -the -calculation -of the , Construction Manager' ^ - Fee -erhhe Guaranteed- Maximum- Fr3Eeand- provided-shatsuch- reyakiea. fee^-and cost--are-not excluded -by -the -lest sentence of Subparagraph 3.17.1 of -Abk - Document -Aset -Of ether -previsions of -the r�tract Documents. .8 Legal, -mediation -and -arbitration-costs, -athec -than -these arising -from -disputes -between 4lse -Owner -and - Genstructien 6.1.7 OTHER COSTS living - allowances a€- personnel - required -fer the -Work, -in Lase -it -is -necessary te-relocate such - personnel -from -distant locations. .1 Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the Owner. Intakingactie ate- preventthreatened-darnage, injury-er4oss n- ease -efan cn y _ff ct t h e " -persons anod- In -eF of o _ e..ectiea the Constriction arthe- Genstructien - repahing �reE4hTg�amaged - nencenfennhTgW� ��to - Manager Manager's Subcontractor - ersuppiers,-provided that -such -damned -OF -was -net -eaused -by-the negligence-or failure -to - fulfrllaspecifio respenbi''ityte-the set forth - ittthis Agreement -of -he Construction G 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21 /CMC AND AGC DOCUMENT 565 - OWNER - CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIM/ - AGC - ® 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted' below. User Document: version 2a121cmc.aia -- 6/132003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21 /CMc -1991 6 1 Manager-or -the Construction Manager's foremen, engineers-or superintendents,.oe-ether supervisory, administrative managerial - personnel- of-the Censtruetien Manager -er-he failuresf -he r-°° ion Manager's personnel-te-supervise- adequately- the - Week- er3eppliersr -end-e my -{e- he ..atcnt that the cost of repair or correction is not 6,1,9 The costs -described -Subparagraphs -6.ea 4hrough-6 - shall -be 4cieluded -in -the Cost -of -the -Work -notwithstanding -any provision f AIA- Becument _ . whit - Managerto r ch test , 64 COSTS NOT TO nc REIMB tRSED 4 Salaries and -ether compensation of -the - Construction Manager's -personnel�one-d at -the -Contraction -Manager's .2 Expenses -of -the -Construction -Managegs -principal -office -and -offices -ether -than -the -site -office except-a5 spccifically- provided m Paragraph 6.i. ,4 capital Work 6.3 DISCOUNTS, REBATES AND REFUNDS 6.4 ACCOUNTING RECORDS 6 Except-as - provided- in-Clause 6.1.8.2, cost- -due-to-the -negligence -ef -the Construction - Manager-er4e- he- failure-ef- he 3• Construction Manager's capital c wed for he 6.3.1 Cash discounts obtained on payments made by the Construction Manager shall accrue to the Owner if (1) before making the payment, the Construction Manager included them in an Application for Payment and received payment therefor from the Owner, or (2) the Owner 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 Owner, and the Construction Manager shall make provisions so that they can be secured. 6.3.2 Amounts which accrue to the Owner in accordance with the provisions of Subparagraph 6.3.1 shall be credited to the Owner as a deduction from the Cost of the Work. 6.4.1 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 Owner. The Owner and the Owner'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. ® 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21/CMC AND AGC DOCUMENT 565 - OWNER - CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIAO - AGC - 0 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document version 2a121cmc.aia -- 6113/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21 /CMS -1991 7.1 PROGRESS PAYMENTS ARTICLE 7 CONSTRUCTION PHASE 7.1.1 Based upon Applications for Payment submitted to the Architect by the Construction Manager and Certificates for Payment issued by the Architect, the Owner shall make progress payments on account of the Contract Sum to the Construction Manager as provided below and elsewhere in the Contract Documents. 7.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, or as follows 7.1.3 Provided an Application for Payment is received by the Architect not later than the 30th day of a month, the Owner 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 Owner not later than thirty (30) days after the Architect receives the Application for Payment. 7.1.4 With Following each Application for Payment, ilie — A4anager l- submit the Owner shall have the right to inspect the Construction Manager's payrolls, petty cash accounts, receipted invoices or invoices with check vouchers attached, and any other evidence required by the Owner or Architect to demonstrate that cash disbursements already made by the Construction Manager on account of the Cost of the Work equal or exceed (i) 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. 7.15 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 Asehiteet the Owner may require. This schedule, unless- ebjeetedhe-by -he Architect, shall be used as a basis for reviewing the Construction Manager's Applications for Payment. 7.1.6 Applications for Payment shall show the percentage completion of each portion of the Work as of the end of the period covered by the Application for Payment. The percentage completion shall be the lesser of (i) 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. 7.1.7 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: .1 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 Owner of changes in the Work, amounts not in dispute may be included as provided in Subparagraph - of AIA Document A2o1, even though the Guaranteed Maximum Price has not yet been adjusted by Change Order. .2 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 Owner, suitably stored off the site at a location agreed upon in writing. .3 Add the Construction Manager's Fee, less retainage of five percent (5%). The Construction Manager's Fee shall be computed upon the Cost of the Work described in the two preceding Clauses at the rate stated in Subparagraph 5.1.1 or, if the Construction Managers Fee is stated as a fixed sum in that Subparagraph, shall be an amount which bears the same ratio to that fixed -sum Fee as the Cost of the Work in the two preceding Clauses bears to a reasonable estimate of the probable Cost of the Work upon its completion. ® 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21 /CMC AND AGC DOCUMENT 565 - OWNER - CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - ® 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia -- 6/13/2003. AIA License Number 1009596, which expires on 5/292004. Electronic Format Al21/CMc -1991 q .4 Subtract the aggregate of previous payments made by the Owner. 5 Subtract the shortfall, if any, indicated by the Construction Manager in the documentation required by Subparagraph 7.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the Owner's accountants in such documentation: .6 Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Paragraph-95-of AIA Document Azol. 7.1.8 Except with the Owner's prior approval, payments to Subcontractors shall be subject to retention of not less than five percent (5%). The Owner and the Construction Manager shall agree upon a mutually acceptable procedure for review and approval of payments and retention for subcontracts. 7.1.9 Except with the Owner'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. 7.1.10 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 Subparagraph 7.1.4 or other supporting data; that the Architect has made exhaustive or continuous on -site inspections or that the Architect has made examinations to ascertain how or for what purposes the Construction Manager has used amounts previously paid on account of the Contract. Such examinations, audits and verifications, if required by the Owner, will be performed by the Owner's accountants acting in the sole interest of the Owner. 7.2 FINAL PAYMENT 7.2.1 Final payment shall be made by the Owner 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 nonconforming Work, as provided in Subparagraph • a f AIA Document Axed, 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 Owner's accountants; and (3) a final Certificate for Payment has then been issued by the Architect; such final payment shall be made by the Owner not more than 3o days after the issuance of the Architect's final Certificate for Payment, or as follows: 7.2.2 The amount of the final payment shall be calculated as follows: .1 1. Take the sum of the Final GMP /Contract Sum from paragraph 5.2.2. .2 Subtract amounts, if any, for which the Architect withholds, in whole or in part, a final Certificate for Payment as provided in Sebparagraphr9:5.rof AIA Document A201 or other provisions of the Contract Documents. .3 Subtract the aggregate of previous payments made by the Owner. If the aggregate of previous payments made by the Owner exceeds the amount due the Construction Manager, the Construction Manager shall reimburse the difference to the Owner. 7.2.3 The Owner's accountants will review and report in writing on the Construction Manager's final accounting within 3o days after delivery of the final accounting to the Architect by the Construction Manager. Based upon such Cost of the Work as the Owner's accountants report to be substantiated by the Construction Manager's final accounting, and provided the other conditions of Subparagraph 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 Owner 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 Suiveragr-apit-9:5,1-ef AIA Document A2o1. The time periods stated in this Paragraph 7.2 supersede those stated in Subparagraph -9#.1 of A1A Document Azot. 7.2.4 If the Owner'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 Article 9 without a further decision of the Architect. unless agreed to otherwise, a demand for mediation or arbitration of the disputed amount 0 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21 /CMC AND AGC DOCUMENT 565 - OWNER -CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA®. AGC - ® 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia -- 6/13/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21 /CMc -1991 shall be,made by the Construction Manager within 6o 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 6o -day period shall result in the substantiated amount reported by the Owner's accountants becoming binding on the Construction Manager. Pending a final resolution of the disputed amount, the Owner shall pay thg Construction Manager the amount certified in the Architect's final Certificate for Payment. 7.2.5 If, subsequent to final payment and at the Owner's request, the Construction Manager incurs costs described in Paragraph 6.1 and not excluded by Paragraph 6.2 (r) to correct nonconforming Work, or (2) arising from the resolution of disputes, the Owner 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 Owner in determining the net amount to be paid by the Owner to the Construction Manager. ARTICLE 8 INSURANCE AND BONDS Paragraphs 8.1 - 8.2.2 are deleted in their entirety and are replaced with "Addendum Number One to Standard Form of Agreement between Owner and Contractor and Addendum to General Conditions ", attached hereto. 8 Commercial -General -Liability -including coverage -for inns;- Independent -Contractors! Protective, Completed Operations ,.Getttraetual- biabilitl;- Personal -h it y and-Bread- Fenn - Property- Damage{-im eleding-coverage -for Explosion - Paragraph 3.18. Othc General-AggFegate- Perrsonaland- `T Produets-Completcd- Oferationc Aggregate 3-- Each- Accident- 8� Dunng-both- phases -of -the -Project -the shall - purchase -and -maintain : liability -and -properly -imsurance,- inclmding i" ers-waivers Cr 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21 /CMC AND AGC DOCUMENT 565 - OWNER- CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - Co 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia — 6/13/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21 /CMc -1991 824 r......rances 8,3 8.10 PERFORMANCE BOND AND PAYMENT BOND 844 8.10.1 The Construction Manager shall pnsen ^shall^or 'Mall not) furnish bonds covering faithful performance of the Contract and payment of obligations arising thereunder. Bonds may be obtained through the Construction Manager's usual source, and on forms and from companies acceptable to the Owner. . The amount of each bond shall be equal to one hundred percent (100 %) of the Contract Sum. 8,32 8.10.2 The Construction Manager shall deliver the required bonds to the Owner at least three days before the commencement of any Work at the Project site. ARTICLE 9 MISCELLANEOUS PROVISIONS 9.1 DISPUTE RESOLUTION FOR THE PRECONSTRUCTION PHASE 9.1 and 9.2 are deleted in their entirety and are replaced with the following: The Owner and the Construction Manager hereby agree that no claims or disputes between the Owner and the Construction Manager arising out of or relating to the Contract Documents or a breach thereof shall be decided by any arbitration proceeding including. without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C. Sections 1 -14) or any applicable state arbitration statute. except that in the event the Owner is subject to an arbitration proceeding related to the Project, the Construction Manager consents to be joined in the arbitration proceeding if the Construction Manager's presence is required or requested by the Owner for complete relief to be accorded in the arbitration proceeding. °fir the -parties -to -his -Agreement -which arise -prior 4o -he ant - el - tile Censtn ties -Phase -OF -which - relate Manager sr 40 -the Owner's -obligations 4o -the Cenctruetien 9.1.2 Any- rnedfatfeacendueted -pursuant -e this - Paragraph 94shallbe-held -in- accordance- with -the Construction s Mediation -Riles -of - the American - Arbitration -Association currently in effect,-unless o wicc. Demand -fns -mediation-- lint]-be- f+leel4n g- withtheother party 4o -this Agreement - and -with -an - Arbitration ether - matter reasonable -time after -he claim -dispute Deductible Per Occurrence Aggfegate be madeafter- he -date -when - institution-ef -legal -orsuitable preceedinge-hased upen-sueh-claimrdisputear -ethermin - question -would -be taxed -by -the applicable -statute of litnitatiens 9,1,3 Any claim, -dispsste-ee-elher -matte* 4n _ guection -e6 eesetved by - mediation -shall be -decided -by arbitration -at 13* - Aanerican currently -in effect unless 9.h4 Demand -for -arbitration shallbe- filedin- writing -with the other -party -e -his -Agreement and -with -the -American o cuQ rently- wit -a deman d- for- mediationand shallbe -made within -a - reasonable -time after -he -damn; -dispute -or -ether arbitrationbe- madeafter4he-date- when- Mstitutien-ef4egal er equitable proceedings bascd- upeesueh-elaims-disputear-ether matter _in_question -would be'�aaby limitations, 9,1,5 No arbitration arising -out -of -Of -relating 4o -the Contract-Documents shall- ueluder-b eeoselidatieaer- ernder Of -in -any -other - manner. -the Architect -the Architect's -reference -e -he - Agreement and signed specific by -he or entity-sought 4obe- joined- Pte- arbitrationshall- include eensolidatien -or- jeinder-er- inany -o he* manner- parties-ether. ® 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21 /CMC AND AGC DOCUMENT 565 - OWNER - CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - ® 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia -- 6/13/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21 /CMc -1991 than -ihe,Owner,- Construction Manager,a-separate contractor as -described -in - Article - -ef AIA -Document A2ot and -other thereof. law -whose - presence -is - required 4f -complete -relief -is 40 -be accorded 4n arbitratiet -No - person -or - entity -other than -the Owner -or Consiractien - Manager or a -separate - contractor as described in Article -be- included as an -original third -party -or additional third party to -an arbitration -vheae interest of - responsibility -is -insubstantial: Gensenttoarhitfation -involvinganadditional-persen orentity shall -not -constitute agreement to arbitration -of a dispute -net or- described- LkereiO41ae forotoingagreement4e rbitr:•� teand. ether -agreements to -arbitrate -with an additional - person -or entity -duly fensentedto-by-paartties- te-this-Agreement-shall-be specifically -enforceable -under applicable -law 4n any -court having jurisdictien-thereefi- 9:1,6 The award - rendered -by -the arbitrator of arbitrators shall -be fatal, and - judgment - may -be -entered -upon 41 4n 9.2 DISPUTE RESOLUTION FOR THE CONSTRUCTION PHASE 9,24 Any-o tbef - claim,-disputeaf-othef- mattef4n question arising -out -of-or-related to this- Agreement-or- breach thereof shall-be-settled-in accordance- with,Aa#iele-aof- A4ADecument ttaet -, except that -in addition 4e and -prior to - arbitration 4he parties -shall -endeavor to -settle - disputes -by - mediation -in accordance-with the American furrently i c� �,ff�n ct .m the - p y -agree otherwise: Any - mediation -arising 9.3 OTHER PROVISIONS 9.3.1 Unless otherwise noted, the terms used in this Agreement shall have the same meaning as those in the 1987 Edition of AIA Document A2oi, General Conditions of the Contract for Construction. 9.3.2 EXTENT OF CONTRACT This Contract, which includes this Agreement and the other documents incorporated herein by reference, represents the entire and integrated agreement between the Owner and 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 Owner and Construction Manager. If anything in any document incorporated into this Agreement is inconsistent with this Agreement, this Agreement shall govern. 9.3.3 OWNERSHIP AND USE OF DOCUMENTS The Drawings, Specifications and other documents prepared by the Architect, and copies thereof fumished to the Construction Manager, are for use solely with respell to this Project. They are not to be used by the Construction Manager, Subcontractors, Sub- subcontractors or suppliers on other projects, or for additions to this Project outside the scope of the Work, without the specific written consent of the Owner and Architect. The Construction Manager, Subcontractors, Sub - subcontractors and suppliers are granted a limited license to use and reproduce applicable portions of the Drawings, Specifications and other documents prepared by the Architect appropriate to and for use in the execution of their Work under the Contract Documents. 9.3.4 GOVERNING LAW The Contract shall be governed by the law of the place state where the Project is located. and venue shall lie in Williamson County, Texas. 9.3.5 ASSIGNMENT The Owner and Construction Manager respectively bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents. Neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. ARTICLE 10 TERMINATION OR SUSPENSION 10.1 TERMINATION PRIOR TO ESTABLISHING GUARANTEED MAXIMUM PRICE 10.1.1 Prior to execution by both parties of Amendment No. 1 establishing the Guaranteed Maximum Price, the Owner may terminate this Contract at any time without cause, and the Construction Manager may terminate this Contract for any of the reasons described in Subparagraph -rq taof AIA Document A201. 10.1.2 If the Owner or Construction Manager terminates this Contract pursuant to this Paragraph ma 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 Subparagraph 41.1. 10.1.3 If the Owner or Construction Manager terminates this Contract pursuant to this Paragraph ro.t after commencement of the Construction Phase, the Construction Manager shall, in addition to the compensation provided in Subparagraph 10.1.2, be paid an amount calculated as follows: 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006.5292. AIA DOCUMENT AIAl21 /CMC AND AGC DOCUMENT 565 - OWNER - CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - ® 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document; version 2a121cmc.aia -- 6/13/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21/CMc -1991 Take the Cost of the Work incurred by the Construction Manager. .2 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 Managers 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 Work at the time of termination bears to a reasonable estimate of the probable Cost of the Work upon its completion. .3 Subtract the aggregate of previous payments made by the Owner on account of the Construction Phase. The Owner shall also pay the Construction Manager fair compensation, either by purchase or rental at the election of the Owner, for any equipment owned by the Construction Manager which the Owner elects to retain and which is not otherwise included in the Cost of the Work under Clause 10.1.3.1. To the extent that the Owner elects to take legal assignment of subcontracts and purchase orders (including rental agreements), the Construction Manager shall, as a condition of receiving the payments referred to in this Article lo, 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 Owner may require for the purpose of fully vesting in the Owner 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 Owner's written approval prior to the execution of Amendment No. 1 shall contain provisions permitting assignment to the Owner as described above. If the Owner accepts such assignment, the Owner shall reimburse or indemnify the Construction Manager with respect to all 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 Owner elects not to accept the ARTICLE 11 OTHER CONDITIONS AND SERVICES 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 Owner shall pay the Construction Manager the costs necessarily incurred by the Construction Manager by reason of such termination. 10.2 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 Article-14-of AIA Document A2o1. 10.2.1 In the event of such termination by the Owner, the amount payable to the Construction Manager pursuant to Seraph 1..2-of AIA Document A201 shall not exceed the amount the Construction Manager would have been entitled to receive pursuant to Subparagraphs 10.1.2 and 10.1.3 of this Agreement. 10.2.2 In the event of such termination by the Construction Manager, the amount to be paid to the Construction Manager under Subparagraph -t#rz-of AIA Document A2o1 shall not exceed the amount the Construction Manager would be entitled to receive under Subparagraphs 10.1.2 or 10.1.3 above, except that the Construction Manager's Fee shall be calculated as if the Work had been fully completed by the Construction Manager, including a reasonable estimate of the Cost of the Work for Work not actually completed. 10.3 SUSPENSION The Work may be suspended by the Owner as provided in Article -14-01 AIA Document A2ot; in such case, the Guaranteed Maximum Price, if established, shall be increased as provided in Subparagraph 14.3.2 -ef AIA Document A2ot except that the term "cost of performance of the Contract" in 4hat Subparagraph 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 Subparagraphs 5.1.1 and 5.3.4 of this Agreement. 11.1 There is only one Guaranteed Maximum Price (GMP) provided by this Agreement. The amounts of the individual line items are not guaranteed. The final cost of any particular line item may be more or may be less than the estimate. The Construction Manager does however. guarantee to perform all of the work required by the Contract Documents within the GMP. and within the stated Contract Time. 11.2 Upon Substantial Completion of the Work. the Owner. Architect and Construction Manager shall walk the Project and prepare a "punch list" which will describe all of the items to be performed by the Construction Manager to bring the Project to full completion. When the Construction Manager performs these to the Owner's satisfaction, the Project shall be deemed to be one hundred percent (100 %) completed. 1 1 - TH AN IN T TUTE • E T , 17 NEW Y•R' r ` 1 ` rr Y ` • � , D, . •' . -5 . . AIA DO UMENT AIAl21/CMC AND AGC DOCUMENT 565 - OWNER - CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIM/ - AGC - 0 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia -- 6/13/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21 /CMc -1991 11.2.1 For all items which appear on the "punch list," the cost of remedying or repairing same shall be considered a Cost " of the Work as defined in the Contract Documents. unless repairs are due to the negligence of the Construction Manager. 11.2.2 If the Construction Managers work has been completed. but a Certificate of Occupancy is not issued because of administrative delay on the part of the appropriate building authority. or because of the work of separate contractors at the Project site in the employ of the Owner. or for any reason beyond the control of the Construction Manager then the final payment will be made to the Construction Manager. provided that other requirements herein for final payment have been met. 11.3 The Construction Manager will protect the Work. materials and equipment on the Project site and will not damage or unduI interfere with the work. materials or equipment of others. The Construction Manager will not repair or replace except for reasonable compensation. any of its work or installations damaged directly or indirectly through by or as a result of items listed in Warranty provisions of the General Conditions and any of the following: 11.3.1 Defective design or material supplied by the Owner. or the Owner's separate contractor or supplier. 11.3.2 Any defect in materials or work. or defects caused by materials or work supplied by anyone other than the Construction Manager, its subcontractors, or its agents. 11.3.3 Damage to any items by the Owner or occupant during move -in. including but not limited to cabinets. appliances counter tops. drywall or plaster surfaces. floor or wall coverings. paint, plumbing fixtures. faucets. window glass. mirrors electrical fixtures and ceramic tile 11.4 Liquidated Damages: Time is of the essence in this Agreement. Therefore, if the Construction Manager fails to achieve Substantial Completion of the Work (or any portion of the Work) on or before September 7, 2003, that being the date specified for Substantial Completion in the Agreement. then and in that event the Construction Manager shall pay to the Owner, as liquidated damages, the sum of Two Hundred Fifty Dollars ($250.00) per day for each calendar day or portion of a day that Substantial Completion is delayed after the date specified for Substantial Completion. due to failure of the Construction Manager to have achieved Substantial Completion in accordance with the Contract Documents. It is hereby agreed by the parties that the liquidated damages to which the Owner is entitled hereunder are a reasonable forecast of lust compensation for the harm that would be caused by the Construction Manager's failure to achieve Substantial Completion of the Work (or any portion of the Work) on or before September 7, 2003. It is hereby agreed by the parties that the harm that would be caused by such failure. which includes loss of expected use of the Project areas provision of alternative storage facilities and rescheduling of moving and occupancy dates, is one that is incapable or very difficult of accurate estimation. It is hereby agreed by the parties that if Substantial Completion of the Work (or any part of the Work) is not achieved on or before thirty (30) days after September 7, 2003, that being the date specified for Substantial Completion in the Agreement. then and in that event the harm that would be caused to the Owner cannot be reasonably forecast because it would include business disruption to the Owner in addition to loss of expected use of the Proiect areas provision of alternative storage facilities and rescheduling of moving and occupancy dates. Thus. at the Owner's option and in the Owners sole discretion. the liquidated damages set forth herein may cease to be assessed under the Contract Documents after thirty (30) days after the date specified for Substantial Completion, and the Owner may choose thereafter to rely on its remedies under the Contract Documents and at law and in equity. including without limitation the recovery of actual damages The date specified in the Agreement for Substantial Completion of the Work (or any portion of the Work). that being Septem shall not be subject to adiustment for any reason whatsoever. 11.5. Wa anties: The warranty provided herein shall be in addition to and not in limitation of any other warranty or remedy required by law or by the Contract Documents. and such warranty shall be interpreted to require the Construction Manager to replace defective materials and equipment and re- execute defective Work which is disclosed to the Construction Manager by the Owner within a period of one (1) year after Substantial Completion of the entire Work or within a longer warranty time if such is specifically called for in the Specifications or as otherwise provided by law. In each instance where the Construction Manager becomes obligated to correct defective Work. the one (1) year warranty period specified shall automatically be renewed and recommenced beginning when such correction is completed as to the Work corrected. so that the Construction Manager's warranty obligations remain in effect as to each portion of the Work until each portion of the Work has functioned properly for an entire year. 1991 - THE AM RICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006 -5292. AIA DOCUMENT AIAl21/CMC AND AGC DOCUMENT 565 - OWNER -CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - ® 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia — 6/17/2003. AIA License Number 1009596, which expires on 5/292004. Electronic Format Al21 /CMc -1991 �9 11.5.1 The Construction Manager shall issue in writing to the Owner. as a condition precedent to final payment. a "General Warranty" reflecting the terms and conditions for all Work under the Contract Documents. This General Warranty shall be assignable. 11.5.2 Except when a longer warranty time is specifically called for in the Specifications or as otherwise provided by law. the Construction Manager shall warrant for a period of twelve (12) months from Substantial Completion that the buildings shall be watertight and leakproof at every point and in every area except where leaks can be attributed to damage to the buildings by external forces beyond the Construction Manager's control. The Construction Manager shall. immediately upon notification by the Owner of water penetration. determine the source of water penetration and, at its own expense, do any work necessary to make the buildings watertight. The Construction Manager shall also. at its own expense. repair or replace any other damaged materials. finishes, and furnishings damaged as a result of this water penetration, to return the buildings to their original condition. 11.5.3 Except when a longer warranty time is specifically called for in the Specifications or as otherwise provided by law, the General Warranty shall be for twelve (12) months from Substantial Completion and shall be in form and content otherwise satisfactory to the Owner. 11.5.4 Warranties shall become effective on a date established by the Owner and the Architect in accordance with the Contract Documents. This date shall be the Date of Substantial Completion of the entire Work. This Agreement entered into as of the day and year fast written above. OWNER CONSTRUCTION MANAGER CITY OF ROU K BRATH, INC. By: �4(iY // N ul ' -II, yn p � � Date: i 9` ATTEST: By %l. I__i4 Christine R. Martinez, City Secretary By: Title: Date: f ��3lotnfy[. 0 1991 - THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVENUE, N.W., WASHINGTON, D.C. 20006.5292. AIA DOCUMENT AIAl21/CMC AND AGC DOCUMENT 565 - OWNER - CONSTRUCTION MANAGER AGREEMENT - 1991 EDITION - AIA® - AGC - ® 1991 - THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA, 1957 E STREET, N.W., WASHINGTON, D.C., 20006 -5209. WARNING: Unlicensed photocopying violates U.S. copyright laws and is subject to legal prosecution. This document was electronically produced with permission of the AIA and can be reproduced in accordance with your license without violation until the date of expiration as noted below. expiration as noted below. User Document: version 2a121cmc.aia -- 6/13/2003. AIA License Number 1009596, which expires on 5/29/2004. Electronic Format Al21 /CMc -1991 Amendment No. 1 to Agreement Between Owner and Construction Manager Pursuant to Paragraph 2.2 of the Agreement, dated the j "I day of the month of June, 2003, by and between the City of Round Rock, Texas (the Owner) and Brath, Inc. (the Construction Manager), for construction of new restroom/concession/storage facilities located at Old Settlers Park at Palm Valley (the Project), the Owner and the Construction Manager hereby establish a Scope of Work, a Guaranteed Maximum Price, and Contract Time/Completion Dates for the Work as set forth below. Article 1 THE WORK The scope of work included in this Amendment, and its Guaranteed Maximum Price, is for the work in its entirety for the construction of new restroom/concession/storage facilities located at Old Settlers Park at Palm Valley. The following exhibits supplement this Agreement. Article 2 EXHIBITS Exhibit "A" Scope of Work Exhibit `B" Drawings, Specifications and Addenda Exhibit "C" Construction Manager's "Guaranteed Maximum Price Clarifications and Spreadsheet" Article 3 GUARANTEED MAXIMUM PRICE The Construction Manager's Guaranteed Maximum Price (the GMP) for the Work, including the estimated Cost of the Work as defined in Article 6 and the Construction Manager's Fee as defined in Article 5, is Two Hundred Sixty Two Thousand Four Hundred Eighty-four Dollars (S262,484.00). This price is for the performance of the Work in accordance with the Contract Documents and any attached exhibits. The GMP includes only: (a) The amount agreed to by the Owner and the Construction Manager, which is estimated to be the anticipated actual Cost of the Work; (b) The Construction Manager's Fee of 4.95% of the Cost of the Work; (c) The amount paid to the Construction Manager for Insurance and Bonding cost, which is 2.9% of the actual Cost of the Work; and (d) The amount for preconstruction services, which is the stipulated sum of $5,000.00. 1 OWNER: Article 4 CONTRACT TIME/COMPLETION DATES Contract Time is a crucial element of this Project; therefore, Completion Dates are not subject to change. The Substantial Completion Date for the Project is September 7, 2003. City of Round Rock, Texas Brath, Inc. By: ayor Date: a/91-Q ATTEST: �.L A! , • 1 11/ Christine R. Martinez, City Secretary 2 CONSTRUCTION MANAGER: Title: 3, 1c.c - , Date: /off/ 714=a EXHIBIT "A" SCOPE OF WORK Performance of complete Construction Manager at Risk services and complete actual construction services for new restroom/concession/storage facilities of approximately 1,600 square feet, same to be located at Old Settlers Park in Round Rock, Williamson County, Texas. Construction shall include all work and divisions of work necessary to fully and finally build and complete the referenced Project to the specifications contained in the contract and all associated documents. EXHIBIT It All REQUEST FOR QUALIFICATIONS & PROPOSAL FOR CONSTRUCTION MANAGEMENT AT -RISK SERVICES CITY OF ROUND ROCK SOCCER FIELD FACILITIES AT OLD SETTLER'S PARK ROUND ROCK, TEXAS Proposals are due 2:OOPM, May 27, 2003 at the City of Round Rock Council Chambers 221 E. Main Street, Round Rock, TX 78664 Phone (512) 341 -3345 / Fax (512) 218 -5548 Nyman rckitucts 309 West Main Street, Suite 120 Round Rock, Texas 78664 (512) 733 -1150 EXHIBIT "B„ Notice to Proposers City of Round Rock REQUEST FOR SEALED PROPOSALS FOR CONSTRUCTION MANAGER AT -RISK SERVICES Pursuant to the provisions of Senate Bill it is the intention of the City of Round Rock [the City] to select via the Request for Proposal process a construction manager -at -risk for the construction of the Soccer Field Facilities as generally described herein. Proposals are to include the specific qualification information requested in the sequence and format prescribed. In addition to and separate from the requested information, offerors submitting proposals may provide supplementary materials further describing their capabilities and experience. In order to be considered for selection, five (5) copies of the completed questionnaire must be delivered to the City of Round Rock Council Chambers by the date and time specified. Proposal forms and guidelines are available at Moman Architects, Inc., 309 W. Main Street, Suite 120, Round Rock, DC 78664. Questions regarding the proposal may be addressed to Moman Architects, Inc. PROPOSALS MUST BE RECEIVED NO LATER THAN 2:OOPM May 27, 2003 Any proposal received after such time will not be considered and will be returned unopened. Proposals will be received by the Parks and Recreation Department (PARD) Director or Staff Member at: City of Round Rock Council Chambers 221 E. Main Street, Round Rock, TX 78664 Following the deadline for receipt, the PARD Staff will receive, publicly open, and read aloud the names of each offeror and the fees and prices, if any, stated in the proposals. Within 45 days following the date of the opening PARD staff will evaluate and rank each proposal submitted in the relation to the selection criteria set forth in Section!' of this document A recommendation will be made to the City Council as to the ranking of the proposals. Following City Council approval of the ranking, the City will attempt to negotiate a final contract with the most highly qualified offeror based on the selection criteria set forth herein. If the City is unable to reach an agreement with the first ranked offeror the City shall terminate negotiations with that offeror and begin the negotiation process with the second ranked offeror (never returning to the first ranked offeror). This process shall continue until an agreement has been negotiated with a ranked offeror or the City rejects all proposals for this project The City will select a construction manager from the respondents to this request for proposals, or reject all proposals. In determining which proposal provides the best value, the City will consider all responses to the questions set forth in Section IT of this document and will use those responses and other available information to assess the following selection criteria: ITEM MAX SCORE RANGE Responsiveness of Submittal 5 Reputation/ References - 20 Moman Architects, Inc 2 City of Round Rock CM/RFP Company's experience & past performance - 25 Experience in public funded facilities Experience in projects of similar scope Project history (completion, cost control, safety record) History of litigation or bankruptcy Proposed personnel and methodology 15 Staff qualifications Proposed subcontractors Understanding of project/ project approach Suitability of the Company's services 15 Cusrent workload Stability/ years in business Proximity to site Size of this project to past work Past relationship with the Design Team 10 Proposed Fee 10 TOTAL 100 The City reserves the right to verify the accuracy and completeness of all responses by utilizing any information available to the City without regard to whether such information appears in your proposal. Summary The project prospectus is intended to provide basic information on the scope of the work completed in terms of size, complexity, budget, and other project features to aid firms in expressing their desire to be selected to provide construction management services. Please read the prospectus, verify the project requirements, and express your interest accordingly. Exact details may vary. The scope of the services requested in the RFQ include providing constructability, cost estmatnp and value engineering input during the Design and Construction Document preparation phases of the architect's design efforts, and at a point between 75% and 90% completion of the Construction Documents, providing the City with a Guaranteed Maximum Price (GMP) for the construction of the project The Construction Manager will use the architect's Construction Documents to develop bid package for all items of work for the project, and take sub- contract bids on the work The City will participate in the review and acceptance of all sub - contract bids. The Construction Manager will coordinate and supervise all sub- contract work to complete the construction of this project As delineated in the RFQ, compensation to the Construction Manager will include the cost to deliver the assignment under a Guaranteed Maximum Price, plus a negotiated fee for involvement in the Design Phase and for profit and overhead. Each submitting firm is asked to provide the following fee proposal for this project • Fee for Design and Bid/Award Phase services including professional fees, estimating and personnel cost (see Exhibit C). • Fee for the construction Phase services, including general conditions, professional fees, insurances, and bond premium (see Exhibit C). Scope of the Work Provide Construction Management Services (At -Risk) for the design phase, bid/award phase, and construction phase of the City of Round Rock Soccer Field Facilities. See the attached preliminary drawing for a general description of the scone of this work The firm selected will provide the construction management services to complete the project, ready for occupancy as indicated in the attached milestone Moman Architects, Inc 3 City of Round Rock CM/RFP schedule for the project. The budget for this project is estimated at $260,000. The City has selected the firm of Moman Architects, Inc. as project architects. INFORMATION TO BE PROVIDED BY OFFERORS Please provide the following information in sequence and format prescribed by this questionnaire. Supplemental materials providing additional information may be attached, but the information requested below is to be provided in this format: 1. Firm Information Name of Firm: 2. Organization Address of Principle Office: Phone: Fax: Form of Business Organization: Year Founded: Name of Primary Contact: Position with Firm: Number of Employees in the Office: Field: How many years has your organization been in business in construction management or building construction in its current form? How many years has your organization been in business under its present name? Under what other form or name has your organization operated? 2.2 If your organization is a corporation, please provide the following: Date of incorporation: State of incorporation: Type of Corporation: President's Name(s): Secretary's name: Treasurer's name: Moman Architects, Inc 4 City of Round Rock CM/RFP 3. Experience 2.3 If your organization is a partnership, answer the following: Date of organization: Type of partnership: Name(s) of general partners, with percentage of ownership: 2.3 If the form of your organization is a sole proprietorship: Name of owner: Address: Telephone/Fax: 2.4 Please identify any conflicts of interest that may exist between your organization and City Council members, City staff or directors or the City's architects /engineers. 3.1 List your experience over the last seven years in public funded construction. For each project provide the project name, nature of the building, size, location, original contract cost, final cost, completion dete, owner contact and architect. Please include telephone numbers for the owner and architect (see Exhibit A). 3.2 Provide a list of all projects currently in progress and completed within the last three years. Indicate which projects were performed using construction management at risk method (see Exhibit B), 3.3 List the categories of work your organization normally performs with its own forces. Would you propose to do any work with your own forces or to bid all work to subcontractors? 3.4 List any subcontractors in which your organization has some ownership and list the categories of work those subcontractors normally perform_ 3.5 Identify all key staff you propose to use with appropriate responsibility on this project. Include a resume limited to one page per individual, including any related public funded construction experience. 3.6 Claims and suits (If the answer to any of the questions below is yes, please attach details.) 3.6.1 Has your organization or any predecessor organization ever failed to complete any work awarded? 3.6.2 Identify any judgments, claims, arbitration proceedings or suits, currently pending or outstanding against your organization, its officers, or any predecessor organization. - Moman Architects, Inc 5 City of Round Rock CM/RFP 3.6.3 Within the last seven years has any officer or principal of your organization ever been an officer or principal of another organization when it failed to complete a construction contract? (If the answer is yes please attach details.) 3.7 Within the last seven years has any officer or principal of your organization ever been an officer or principal of another organization when it failed to complete a construction contract? (If the answer is yes please attach details.) 3.8 Within the last seven years has your organization, any officer or principal of your organization, or any predecessor organization filed for bankruptcy? (If the answer is yes please attach details.) 4. Financial Information 4.1 Attach a financial statement, preferably audited, including your organization's latest balance sheet and income statement showing the following items. The City, at the firm's request, will keep this information confidential. • Current assets • Non - current assets • Current liabilities • Non-current liabilities • Capital accounts and equity positions • Notes to the financial statement, including related party transactions 4.2 Name and address of firm preparing attached financial statements and date thereof. 4.3 Provide name, address, phone number, and contact person of your financial institution. 4.4 Surety: Name and address of bonding company and name and address of agent. Performance and payment bond equal to 100% of construction cost will be required upon submission of the GMP. 5. Experience with concept for working as a Construction Manager. 5.1 Describe your organization's concept for working in a team relationship with the Owner and Architect during the design and construction of the major projects. 5.2 Describe your organization's method for estimating costs, and scheduling during the design/documents phase. It is anticipated that the guaranteed maximum price (GMP) will be furnished at 90% construction document phase. 5.3 Attach a sample conceptual cost estimate prepared during the design phase of a project and a sample of the final cost estimate/breakdown used to fix the contract amount for the construction of the same project 5.4 Describe the organizations cost control system utilized during the construction phase. 5.5 Describe your organization's concept and reasoning for the disposition of savings realized during construction. 5.6 Describe your organization's concept for cost contingencies during design and during construction. What is your organization's concept for the disposition of contingency funds after the completion of the project? Moman Architects, Inc 6 City of Round Rock CM /RFP 5.7 Your firm would be required to make all cost information during design and construction available to the owner and architect. Describe how this information would be furnished and how the owner and architect would be assured that it is complete and accurate. Moman Architects, Inc 7 City of Round Rock CM/RFP Exhibit A — Public Funded Projects (provide additional sheets as needed) Project Name: Nature of Building: Size: Location: Bid Cost: Final Cost (w /CO's): Completion Date: Owner's Contact: Telephone No.: Project Architect: Telephone No.: Project Name: Nature of Building: Size: Location: Bid Cost: Final Cost (w /CO's): Completion Date: Owner's Contact: Telephone No.: Project Architect: Telephone No.: Project Name: Nature of Building: Size: Location: Bid Cost: Final Cost (w /CO's): Completion Date: Owner's Contact: Telephone No.: Project Architect: Telephone No.: Moman Architects, Inc 8 City of Round Rock CM/RFP Exhibit B- Projects Completed m the Last Three Years (provide additional sheets as needed) Project Name: Nature of Building: Size: Location: Bid Cost: Final Cost (w /CO's): Reasons for change orders: Completion Date: Contact: Telephone No.: Project Architect: Telephone No.: Project Name: Nature of Building: Size: Location: Bid Cost Final Cost (w /CO's): Reasons for change orders: Completion Date: Contact: Telephone No.: Project Architect: Telephone No.: Project Name` Nature of Building: Size: Location: Bid Cost: Final Cost (w /CO's): Reasons for change orders: Completion Date: Contact: Telephone No.: Project Architect: Telephone No.: Moman Architects, Inc 9 City of Round Rock CM/RFP Exhibit C- Fee Proposal I. Lump sum fee for Design and Bid/Award Phase services including professional fees, estimating and personnel cost, to include but not be limited to: A. Provide a preliminary evaluation of the Owner's program and Project budget requirements. B. With the Architect, jointly schedule and attend regular meetings with the Owner and Architect C. Consult with the Owner and Architect regarding site use and improvements, and the selection of materials, building systems and equipment D. Provide recommendations on construction feasibility, 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 economics. E. Prepare, and periodically update, a preliminary Project schedule for the Architect's review and the Owner's approval. Coordinate and integrate the schedule with the services and activities of the Owner, Architect, and Construction Manager. F. Prepare for the review of the Architect and approval of the Owner a preliminary cost estimate utilizing area, volume or similar conceptual estimating techniques. G. When Schematic Design Documents have been prepared, prepare for the review of the Architect and approval of the Owner, a detailed estimate with supporting data; periodically update and refine this estimate. If any estimate submitted to the Owner exceeds previously approved estimates or the Owner's budget, the Construction Manager shall make appropriate recommendations. H. Seek to develop subcontractor interest in the Project and famish to the Owner and Architect for their information a list of possible subcontractors. I. Recommend to the Owner and Architect a schedule for procurement of long -lead time items and expedite the delivery of long lead items. J. When the Drawings & Specifications are complete, propose a detailed Guaranteed Maximum Price, which provides for further development of the Drawings and Specifications H. Fees for all Construction Phase services, to include but not to be limited to: A. All Construction Management/Contractor Services stated as a percentage of construction cost B. All General Conditions that can reasonably be anticipated for this project, including but not limited to: full -time site supervision; field engineering; field office; safety; small tools; ice water and cups; telephone and fax service; storage buildings; sanitary facilities; waste containers; temporary electrical power, temporary water, project sign; barricades and lights; temporary fencing; general clean -up; as -built drawings; and scheduling. (Note: building permits and tap fees shall be obtained by the construction manager and paid for by the City). The above stated as itemized units costs per month of construction. C. All insurance & bonding including, but not limited to: Builder's risk Insurance for the cost of the work; Owner's Protective/O.C.P. Insurance for the cost of the work; General Liability and Umbrella Insurance for the cost of the work; Bond Premium for the cost of the work (100% performance and payment bonds.) The above stated as a percentage of construction cost. Moman Architects, Inc 10 City of Round Rock CM/RFP III. Hard Cost Construction savings split. The foregoing is true and correct. The City of Round Rock, or any unauthorized representative of the Parks and Recreation Department, is authorized by the undersigned to contact any firm, institution, or person listed above to obtain information about out firm's services, financial condition, and auy other information which the City of Round Rock might determine as being desirable. Offeror: By: (signature) (printed name) Title Moman Architects, Inc 11 City of Round Rock CM/RFP ADDENDUM NO. I 05/27/2003 To all interested parties on the Work entitled: City of Round Rock Soccer Field Facilities REQUEST FOR SEALED PROPOSALS FOR CONSTRUCTION MANAGER AT -RISK SERVICES This Addendum shall be considered part of the Request for Sealed Proposal due 05/27/2003 for the above - mentioned project as though it had been issued at the same time and incorporated integrally therewith. Where provisions of the following supplementary data differ from those of the original RFSP, this Addendum shall govern and take precedence. Bidders are hereby notified that they shall make necessary adjustments in their response to this UP on account of this Addendum. It will be construed that each bidder's proposal is submitted with full knowledge of all modifications and supplemental data specified therein. I . I CHANGE the scoring criteria as follows: ITEM _ MAX SCORE RANGE R.,.,r,onsivcncss of Submittal Deleted Reputation/ References 15 Company's experience & past performance 20 Experience in public funded facilities Experience in projects of similar scope Project history (completion, cost control, safety record) History of litigation or bankruptcy Proposed personnel and methodology 10 Staff qualifications Proposed subcontractors Understanding of project/ project approach Suitability of the Company's services 15 Current workload Stability/ years in business Proximity to site Size of this project to past work Past relationship with the Design Team 10 Proposed Fee 10 Ability to Meet Schedule 20 TOTAL 100 I .2 ADD Exhibit "D" as follows: Exhibit D- Ability to Meet Schedule 1. Demonstrate your ability to meet the proposed schedule assuming a start date of June 16, 2003 and a date of September 1, 2003 for Substantial Completion for the completion of the Concession/Storage & Toilet and the Toilet Facilities. The wastewater extension work will be under separate contract and is not to be considered part of this scope of work. C. Provide additional information to support your ability to meet this schedule. END OF ADDENDUM NO. I M:\Prolects- 2003 \O31 1 O -OG r erect FtIesSaiddIng\Addnrthn# 1 -0527O3.doc Addendum #1 Page 2 A. Provide a preliminary schedule identifying critical path and long lead items. B. Provide critical dates for decisions needed, submittal returns and other items necessary to meet this schedule. e *RE Alesti 043 NE. soled Boom) C)=. M00NRNG IOCANON REO0RE0 WNENE POSSIBLE • A PERSON MUST BE ABLE To /PPN0804 WYNN Y OP MT 5 NEE D PROTRUDING OBJECT NS, MASONRY 0400NG r, 10.50NRY ORNND DOOR AND FRAME ELEVATIONS TOP OF EEC. 106 EMU 3 0 14* 0 FACE I 4" INTERIOR BLOCK WALL r INTERIOR BLOC!( WALL 00 enoxo NVWTED BOND NEC. SCREEN TYPES F F. Flry 100• -0• WALL TYPES ROOM FINISH SCHEDULE ROP.1 NAAR CONCESS .1REA OPn A. STORAGE ...A STORAGE ROOM PUINdNO CNA. MONS 1.150 TaD CONC CCMc wA WAJ,9 CAW PAP CIAU PcU PAU GIAA PAU OAU cmu GNU Ctit PAU OSUNGO VARKS VARIES VARJES yucoss yrvan RBAARKS cpapaut *CM O1ICIaTEI MU SON. Aa cowmen C1Au SEAL ALL CONCRETE Mal OGH12 1 CN2 SEAL /41CONCRLTE C./.1 DOOR SCHEDULE FRANC 1 ALum ALUM ALMA Er FT T � oxro 3 TAY 1.4 NUM ALUM rr rr Er Er cesus INK 2/M.1 CONCESSION /RESTR00L1 BUILDING BDALE:1 /4' -I No s} 10 PAINT ALL 03D CONS r 040 44X1 sums FLOOR PLAN LEGEND NEW CONsTROC301 [631460 CONBmu3l cn 30440 FOR NEYUIINNI ® fEW' WL114(/ `>EYF1IX SECn013204 KEY �NRr BEVA1044 KEY EE OO *60004 0 0 A 11.9 30 0x0601940 TOAST 04PFR HODFA NEM NOTE O0AN1m PEEN Key MESH PLAN CODE O nDN GRIN LOCAroN TOILFT ACCESSORIES IFOEND NOT 4* W 42 0412 BAR Q 04034 TOWa 0940433 / © S• CRAB BAN 5460444 NAI R* D4903M. 2/4.1 ArJ•itectS Inc. �Y TM ROUND ROCK. TEXAS JtiPNNgPASSgNPRO!PBJTTY CITY OF ROUND ROCK SOCCER FACILITIES 0L0 SETTLER'S PARK JOB X04000 03110-00 DATE ISSUE➢: 06 - 11 - 2003 464* MINIM FLOOR PLAN 9m X164 A2.1 15 COURSES • r 12 COURSES • r te 1 s ma I � r •1 I .0,11 I 1) 7 la I 1 6 \ t N i „ MIMI / MI s I y• I I I 0471 EM I I I 10 I rti ►t -- , ,�. N N R +II —� Mt Ss i Ji�i ® rvv E��E ' � 1 �� I I . L s J N .I - 1 l l y Ilir . � T II EMI N.,e.s RmM . 106 04 3M1 111 II • / / 11 VIII ° / .0 -t A• t. y Q / a / / /I / / / - °r te C-..„ i e *RE Alesti 043 NE. soled Boom) C)=. M00NRNG IOCANON REO0RE0 WNENE POSSIBLE • A PERSON MUST BE ABLE To /PPN0804 WYNN Y OP MT 5 NEE D PROTRUDING OBJECT NS, MASONRY 0400NG r, 10.50NRY ORNND DOOR AND FRAME ELEVATIONS TOP OF EEC. 106 EMU 3 0 14* 0 FACE I 4" INTERIOR BLOCK WALL r INTERIOR BLOC!( WALL 00 enoxo NVWTED BOND NEC. SCREEN TYPES F F. Flry 100• -0• WALL TYPES ROOM FINISH SCHEDULE ROP.1 NAAR CONCESS .1REA OPn A. STORAGE ...A STORAGE ROOM PUINdNO CNA. MONS 1.150 TaD CONC CCMc wA WAJ,9 CAW PAP CIAU PcU PAU GIAA PAU OAU cmu GNU Ctit PAU OSUNGO VARKS VARIES VARJES yucoss yrvan RBAARKS cpapaut *CM O1ICIaTEI MU SON. Aa cowmen C1Au SEAL ALL CONCRETE Mal OGH12 1 CN2 SEAL /41CONCRLTE C./.1 DOOR SCHEDULE FRANC 1 ALum ALUM ALMA Er FT T � oxro 3 TAY 1.4 NUM ALUM rr rr Er Er cesus INK 2/M.1 CONCESSION /RESTR00L1 BUILDING BDALE:1 /4' -I No s} 10 PAINT ALL 03D CONS r 040 44X1 sums FLOOR PLAN LEGEND NEW CONsTROC301 [631460 CONBmu3l cn 30440 FOR NEYUIINNI ® fEW' WL114(/ `>EYF1IX SECn013204 KEY �NRr BEVA1044 KEY EE OO *60004 0 0 A 11.9 30 0x0601940 TOAST 04PFR HODFA NEM NOTE O0AN1m PEEN Key MESH PLAN CODE O nDN GRIN LOCAroN TOILFT ACCESSORIES IFOEND NOT 4* W 42 0412 BAR Q 04034 TOWa 0940433 / © S• CRAB BAN 5460444 NAI R* D4903M. 2/4.1 ArJ•itectS Inc. �Y TM ROUND ROCK. TEXAS JtiPNNgPASSgNPRO!PBJTTY CITY OF ROUND ROCK SOCCER FACILITIES 0L0 SETTLER'S PARK JOB X04000 03110-00 DATE ISSUE➢: 06 - 11 - 2003 464* MINIM FLOOR PLAN 9m X164 A2.1 15 COURSES • r 12 COURSES • r te 1 TRUSS PROFILES r J SCAE1 /4' - I• - 0' 4 SOUTH ELEVATION SCALE 1/4 3 NORTH ELEVATION SCNC1/ • -1 • -V • • L. BEAM efeARY,D NM= IMV 9' 2 WEST ELEVATION SCALE 1/4 - 1 • - 0 . 1 EAST ELEVATION sawn 1/4' -1 PLAIELPASOA GALVANMIED WINCE rt£YGf SCREEN MOT rNMro) ST AIMING EAAA ORAL R1 MAAMPUNR r/5PA 10M-0 0 PAZ MM. MMEENT CO N.carwAC FASCIA GALVANIZED LOUVER par raMmj SEW METAL L. BEAM SHEARED IN ILARDPLu. 108.-0. V SMOUIEIPM2 EfLCT. 1/.(Q/Er CCLOW cat-UP 0000. CITY OF ROUND ROCK SOCCER FACILITIES OLD SETTLER'S PARK JC° NONBEA 03110 - 00 OAIE 691rR 06 - 11 - 2003 RVefld6: ROUND ROCKT0 AS wavosE nsspN. rxosrmnv SIEET COIREMIS EXTERIOR ELEVATIONS slur MANE. A3.1 General Contractors SOCCER FACILITIES P.A.R.D ROUND ROCK, TEXAS GUARANTEED MAXIMUM PRICE CLARIFICATIONS JUNE 12, 2003 1. Final complete plans must be available by noon June 17 2. Topsoil, re-seeding, re- sodding by owner. 3. Any excess excavated material to be left on site in designated area. 4. Building permit must be obtained by June 24, 2003. 5. Materials testing by owner. 6. Includes wood roof trusses at 24" O.C. with a 3' cantilever each end. 7. Excludes water repellent or paint on masonry. 8. All screen types to be 26 ga, galvanized unpainted louvers by Capitol Company. 9. AU permits and fees by owner. 10. Porcelain plumbing fixtures in lieu of stainless steel, wall hung 11. Includes two each 2' X 2' columns at North side only. 12. Project completion based on block delivery twenty-eight (28) days following award of contract. Authorization to order block must be given by June 17 13. Guaranteed Maximum Price based on drawings A2.1 and A3.1 only. 14. GMP based on wall hung individual porcelain sinks in restrooms. 15. Connecting beams to be LVL wood at breezeway (2 each) and concession porch (2 each). EXHIBIT 1 16. Excludes termite control 17. No ceilings in restrooms or concession stand. 18. No painting of exposed wood trusses wood deck, or roofing. 19. No roof insulation. 20. All floors to be sealed concrete. 21. Excludes the 25'4" X 25'4" small restroom in the preliminary drawings. 22. Includes one stainless steel table. 23. Excludes telephone and telephone shelf/wall. 24. Includes 24 ga. galvalume plus, 1 inch snap -loc standing seam metal roofing system with concealed fasteners, striated. "D" style perimeter metal edge at all rakes and eaves. Includes continuous vented ridge metal cap. Five year labor guarantee from roofing subcontractor. 25. Guaranteed Maximum Price based on all cost savings returned to owner. Construction Management fee, General Conditions, Pre - construction fee and bonds and insurance costs will be fixed at a minimum of that shown in proposal and will not be reduced as a result of decreased project costs. BRATH, INC. JOB: ROUND ROCK SOCCER FACILITIES DATE: 8020003 DESCRIPTION MISC. LASOR MATENAL 10TAL *02000 Division 1 General Conditions 01000 SUPERINTENDENT 0 13.47 13.470 MRANI 01000 FIELD ENGINEER 0 10,636 10,038 BRATH 01000 REL00110CE 723 723 BRATH 01000 SAIEIY 0 925 525 MATH 01000 SMALL TOOLS 723 723 BRATH 01000 ICE.WAIOF6C6PS 146 149 BRAIN 01000 TELEPHONE/FAX 087 867 BRATH 01000 STORAGE 434 434 05975 01000 UNWARY FACILITIES - 436 686 BRAM 01500 WAS1E CONTAMERS 1,168 1.156 BRATH 01000 TEMP POWER 434 494 BRATH 01000 TEMP WATER 146 145 BRATH 01000 PROJECT SIGN 289 266 BIUT1 01000 4ARRICAOES/109 ITS 256 269 BRATH 01000 TEMP FENCING 1,000 - 1,000 BRATH 01000 GENERAL CLEANUP 0 1.24 1,243 BRATH 01000 AS BUILT DRAWINGS D 40 491 MATH 01000 SCHEDULING 0 925 925 BRAIN FLAN REHIOOUCTION 500 600 BRATH SURVEYING 1,600 1,500 MATH MILEAGE/ALLOWANCE 844 944 BRATH FNAL CLEAVES 263 209 BRATH 1FSTM0 ALLOWANCE 07 OWHER11t 0 05 OWNER POSTAGE 200 200 BRATH ACCE89 ROADS NONE 0 NONE Division 2 Site Construction TERWTECONIROL NONE 0 NONE 02200 60101135055 15,650 16,055 CSCT STABIt12E0 COIST. ENTRANCE 400 500 MATH StLT FENCE 1,000 1,500 BRATH ROCK BERM NONE NONE TREE2900(0I10N NORM NONE WATER OUALRY POND NONE 0014E PAVEMENT MARKERS NONE NONE PIER DRILLING NONE LANE CHAIN LIMK RN0NG NONE NONE SODDING FOR REVEGETATON BY OWNER OWNER 500 WATEIING /Y OWNER OWNER lANDSCANNGAINEGA1ION NONE NONE 700601* NONE NONE Division 3 Concrete 00300 SIDEWALK 5' 3,238 0 03300 515EW913 @50100156 1.024 0 D3300 BLDG_CONCIETE 11,841 0 03451 PRECAST CAP ATPLUM0N0 CHASE 852 0 04401 RIECAST CONCRETE COUNTERS 3,700 0 Division 4 Masonry 04200 MASONRY 30.000 50,800 05167E1011. 04200 CAST STONE COLUMN CAPS 300 200 WRATH Division 5 Metals 05120 MSC STEEU5VL BEAMS 9,700 0 05425 PREENDENEERED METAL TRUSSES NONE 0 Division 8 Wood E. Plastics 06100 WOOD ROOF 0(65 0 1092 2144 3.220 BN.TH 00100 9000 TRUSRS 500 696 2.594 4,182 BRATH 06100 KAR01 50037T B FASCIA 3.384 0 0 3.384 01ATS 06100 HARDN FASCIA 045 0 0 866 MATH 00100 WOOD BLOCKING @ FASE]A.CMU Top 0 1,061 1.083 2,128 IMIA7H 06100 UI$C W000 MWCKMO,HARDI TR1N 2.000 O 0 2,000 BRATH Thermal,Moist. Protect 3.234 BRATH 3,024 BNATN 11,641 RM 652 MATH 3,708 BRAT* 3,700 513 STEEL 0 NONE Division 7 02190 WATER REPELLENTS WIFAIMING 0 0 6100113E PAINTING O 7020 GALVALLNIE ROOF PANELS 7,850 0 7,850 FREEMAN 07900 A01117 5EALER0 2,600 0 2.600 0116711 Division 8 Doors & Windows 08110 STEEL DOORS ANC MANES 0 120 1,883 1.803 BRATHOML 06305 ACCESS 00005 - 0.0 RU 0 60 ABOVE 50 NUT *I 9011 0E332 OVERNEAO ca LING 55021690 4,356 0 0 0.396 ABC 00002 O 8710 HARDWARE 700 0 1,300 2,000 NIDELL Division 9 Finishes DRYWALL NONE 0 0 0 AMERICAN DRYWALL ACOUSTICAL 10.1505 NONE 0 0 0 NON6 CERAMIC TILE NONE 0 0 0 NONE 08900 PANTING 3.140 0 0 3,140 SUNRISE PAINING Division 10 Specialties 06/12/2001 THU 17:49 FAX 512 388 2665 BRATH 10100 PLASTIC TOILET COMPARTMENTS 10000 TOILET ACCESSORIES 10200 LOWERS • EA LOUVERS 12 as 10440 SIGNA15E 10023 ORE EATAIGUIENER5 2 EA Division 11 Equipment 11400 STAINLESS STEEL TABLE Division 15 Mechanical NVAC 15000 PLUMBING 15002 SITE WATER UNE FIRE SP00LER Division 16 Electrical 18000 ELECTRICAL SUBTOTAL PAYROLL TATAN5159. PROJECT MANAGEMENT PROJECT MGMT PR7T1L SUOTOTAL INSURANCE $ 90N0ING SALES TAX 8257. RISC. 01TY FEES BUSTOTAL CONIRACTOPS FEE SLMTOTAL NoNE77» NONE NONE 1,000 0 2.934 3.934 0 5O0 0 2.907 2.007 BRAIN O 00 317 397 640447 O 240 1.530 1.770 MCKAY O 0 0 NONE O 20 160 170 544TH O 25 105 O 0 21.800 0 0 0.0 0 0 O 0 26.500 0 0 170.159 31.750 15.311 270,230 15,914 5,055 1,087 2_59 MONTHS 237,757 7.409 EXEMPT BY OWNER 246,200 • PER CENT • 4.901E 12.197 250.330 CONYNGENCT 5,147 COIP 252,404 210 ABC REST SUPPLY o NONE 21.000 VAN 0.060 UM 0 NONE 24.600 MERCUNY 1 002/002 218.235 547 6C7SUTA» I ADDENDUM NUMBER ONE TO STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR AND ADDENDUM TO GENERAL CONDITIONS THIS ADDENDUM TO STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR AND ADDENDUM TO GENERAL CONDITIONS ( "Addendum ") shall (i) amend certain provisions of the Standard Form of Agreement between Owner and Contractor to which this Addendum is affixed (the "Standard Form "), and (ii) amend, supplement, modify, delete and replace by substitution the indicated provisions of the General Conditions. If the numerical section referenced below is not one contained in the General Conditions, then such text shall be added as a new section. If the numerical section referenced below is one for which there is a counterpart section referenced in the General Conditions, then the referenced text shall be deemed added to the referenced section in the General Conditions, unless otherwise indicated below. Wherever the terms hereof are inconsistent with the General Conditions, the terms hereof shall be controlling. ARTICLE 8 INSURANCE ADDENDUM TO STANDARD FORM OF AGREEMENT 8.1.1 Contractor shall, at its sole expense, maintain in effect at all times during the full term of its Work under the Contract Documents, and as otherwise required under the Contract Documents, insurance coverages with limits not less than those set forth below in the Schedule of Insurance Coverages, with insurers licensed to do business in the State of Texas and acceptable to Owner and under forms of policies satisfactory to Owner. None of the requirements contained herein as to types, limits, or Owner's approval of insurance coverage to be maintained by Contractor is intended to and shall not in any manner limit, qualify or quantify the liabilities and obligations assumed by Contractor under the Contract Documents or otherwise provided by law. In the event of any failure by Contractor to comply with the provisions of this Article 11, Owner may, without in any way compromising or waiving any right or remedy at law or in equity, on notice to Contractor, purchase such insurance, at Contractor's expense, provided that Owner shall have no obligation to do so and if Owner shall do so, Contractor shall not be relieved of or excused from the obligation to obtain and maintain such insurance amounts and coverages. 8.2 SCHEDULE OF INSURANCE COVERAGES Coverage 8.2.1 Worker's Compensation Worker's Compensation Employer's Liability The policy shall include a Waiver of Subrogation in favor of the Indemnitees (as defined in the Contract Documents). 8.2.2 Commercial General Liability Bodily Injury/ $1,000,000 each occurrence, or Property Damage equivalent, subject to a $1,000,000 (Occurrence Basis) aggregate applicable to the Project 1 Minimum Amounts and Limits Statutory Limits $500,000 8.2.5 Deleted This policy shall be on a form acceptable to Owner, endorsed to include the Indemnitees as additional insureds, contain cross - liability and severability of interest endorsements, state that this insurance is primary insurance as regards any other insurance carried by the Indemnitees, and shall include the following coverages: .1 Premises/Operations .2 Independent Contractors .3 Completed Operations for a period of two (2) years following the acceptance of Contractor's Work .4 Broad Form Contractual Liability specifically in support of, but not limited to, the Indemnity sections of the contract .5 Broad Form Property Damage .6 Personal Injury Liability with employee and contractual exclusions removed .7 Delete Exclusions relative to Collapse, Explosion and Underground Property Damage Hazards 8.2.3 Comprehensive Automobile Liability .1 Bodily Injury $250,000 per person $500,000 per occurrence .2 Property Damage $100,000 per occurrence, or equivalent This policy shall be on a standard form written to cover all owned, hired and non -owned automobiles. The policy shall be endorsed to include the Indemnitees as additional insureds, contain cross- liability and severability of interest endorsements, and state that this insurance is primary insurance as regards any other insurance carried by the Indemnitees. 8.2.4 Umbrella Excess Liability Insurance .1 Bodily Injury/ $2,000,000 per occurrence .2 Property Damage $2,000,000 aggregate (Occurrence Basis) This policy shall be written on an umbrella excess basis above coverages as described herein, endorsed to include the Indemnitees as additional insureds, contain cross - liability and severability of interest endorsements, and state that this insurance is primary insurance as regards any other insurance carried by the Indemnitees. In addition, the policy shall be endorsed to provide defense coverage obligations. 8.2.6 Performance Bond and Labor and Material Payment Bond .1 If requested by Owner, Contractor shall obtain, and shall require each Subcontractor designated by Owner to obtain, a Performance Bond and Labor and Material Payment bond in the amount of 100% of the Contract Sum in the case of Contractor, and 100% of the applicable contract 2 amount for designated Subcontractor. Contractor shall deliver the executed originals and two (2) executed copies of each of its required bonds to Owner not later than the date of execution of the Agreement and deliver the executed originals and two (2) executed copies of each of the required Subcontractor bonds to Owner not later than the date of execution of the Subcontractor bond with any such Subcontractor. .2 The bonds shall in all respects conform to the requirements of the laws of the State of Texas. 8.3 BUILDER'S RISK INSURANCE Contractor shall maintain, at its sole expense, all -risk builder's risk insurance as follows: 8.3.1 Contractor shall carry completed value form builder'srisk property insurance upon the entire Work for 100% of the frill replacement cost value thereof (100% includes additional costs of architectural and engineering services in the event of a loss). This policy shall include the interests of the Owner and the other Indemnitees, Contractor, and Subcontractors in the Work as named insureds, as their interests may appear, and shall be on an "All Risk" basis for physical loss or damage including, without limitation, fire, flood, earthquake, subsidence, hail, theft, vandalism and malicious mischief and shall include coverage for portions of the Work while it is stored off the site or is in transit. This policy shall provide, by endorsement or otherwise, that Contractor shall be solely responsible for the payment of all premiums under the policy, and that Owner and the other Indemnitees shall have no obligation for the payment thereof, notwithstanding that Owner and the other Indemnitees are named insureds under the policy. Any insured loss or claim of loss shall be adjusted by the Owner, and any settlement payments shall be made payable to the Owner as trustee for the insureds, as their interests may appear, subject to the requirements of any applicable mortgage clause. Upon the occurrence of an insured loss or claim of loss, monies received will be held by Owner who shall make distribution in accordance with an agreementto be reached in such event between Owner and Contractor. If the parties are unable to agree between themselves on the settlement of the loss, such dispute shall be submitted to a court ofcompetentjurisdiction to determine ownership of the disputed amounts but the Work of the Project shall nevertheless progress during any such period of dispute without prejudice to the rights of any party to the dispute. The Contractor shall be responsible for any loss within the deductible area of the policy. 8.4 CONTRACTOR'S EQUIPMENT POLICY 8.4.1 Any such insurance policy covering Contractor's or its Subcontractors' equipment against loss by physical damage shall include an endorsement waiving the insurer's right of subrogation against the Indemnitees. Such insurance shall be Contractor's and its Subcontractors' sole and complete means of recovery for any such loss. Should Contractor or its Subcontractors choose to self - insure this risk, it is expressly agreed that the Contractor and its Subcontractors hereby waive any claim for damage or loss to said equipment in favor of the Indemnitees. 8.5 EVIDENCE OF INSURANCE 8.5.1 Evidence of the insurance coverage required to be maintained by the Contractor under this Article 11, represented by Certificates of Insurance issued by the insurance carrier, 3 must be furnished to the Owner prior to Contractor starting Work. Certificates of Insurance shall specify the insured status mentioned above in this Article 11, as well as the waivers of subrogation. Such Certificates of Insurance shall state that Owner will be notified in writing thirty (30) days prior to cancellation, material change, or non- renewal of insurance. Contractor shall provide to Owner a certified copy of any and all applicable insurance policies upon request of Owner. Timely renewal certificates will be provided to Owner as the coverage renews. 8.6 SUBCONTRACTORS' INSURANCE 8.6.1 Insurance similar to that required of Contractor shall be provided by or on behalf of all Subcontractors to cover their operations performed under the Contract Documents. Contractor shall be held responsible for any modification in these insurance requirements as they apply to Subcontractors. Contractor shall maintain Certificates oflnsurance from all Subcontractors, enumerating among other things, the waivers in favor of, and insured status of the Indemnitees, as required herein, and make them available to Owner upon request. 8.6.2 The term "Subcontractor(s)" for the purposes of this Article 11 shall include subcontractors of any tier. 8.7 RELEASE AND WAIVER OF SUBROGATION 8.7.1 Contractor hereby releases, and shall cause its Subcontractors to release, Owner and the other Indemnitees from any and all claims or causes of action whatsoever which Contractor and/or its Subcontractors might otherwise possess resulting in or from or in any way connected with any loss covered or which should have been covered by insurance, including the deductible portion thereof, maintained and/or required to be maintained by Contractor and/or its Subcontractors pursuant to the Contract Documents, including without limitation, those arising out of the sole or concurrent negligence of Owner and the other Indemnitees. 8.8 INDEMNIFICATION 8.8.1 To the fullest extent permitted by applicable law, Contractor shall and does agree to indemnify, protect, defend and hold harmless the Owner, Owner's partners, affiliated companies of Owner and of any partner, Architect and their respective officers, directors, shareholders, employees and agents (collectively the "Indemnitees ") from and against all claims, damages, losses, liens, causes of action, suits, judgments, and expenses, including attorney fees, of any nature, kind or description of any person or entity, directly or indirectly arising out of, caused by, or resulting from (1) the Work performed hereunder, or any part thereof, (2) the Contract Documents, or (3) any act or omission of Contractor, any Subcontractor, anyone directly or indirectly employed by them, or anyone that they control or exercise control over, (collectively the "Liabilities"). The obligations of Contractor under this indemnification shall apply to liabilities even if such liabilities are caused in part by the negligence of any Indemnitee. Contractor shall promptly advise Owner in writing of any action, administrative or legal proceeding or investigation as to which this indemnification may apply, and Contractor, at Contractor's expense, shall assume on behalf of Owner (and the other Indemnitees) and conduct with due diligence and in good faith the defense thereof with counsel satisfactory to Owner; provided, however, that Owner shall have the right, at its option, to be represented therein by advisory counsel of its own selection and at its own expense. In the event of failure by the Contractor to fully perform in accordance with this indemnification 4 paragraph, Owner, at its option, and without relieving Contractor of its obligations hereunder, may so perform, but all costs and expenses so incurred by Owner in that event shall be reimbursed by Contractor to Owner, together with interest on the same from the date any such expense was paid by Owner until reimbursed by Contractor, at the rate of interest provided to be paid on judgments under the laws of the State of Texas. This indemnification shall not be limited to damages, compensation or benefits payable under insurance policies, workers' compensation acts, disability benefit acts or other employees' benefit acts. 8.8.2 It is understood and agreed that Subparagraph 11.8 above is subject to, and expressly limited by, the terms and conditions of TEX. CIV. PRACT. & REM. CODE ANN. § 130.001 - 130.005 (Vernon Supp. 1989), as amended. Contractor shall not be obligated under Subparagraph 9.12 to indemnify or hold harmless Architect or an agent, servant, or employee of Architect from liability or damage that: .1 is caused by or results from: (A) defects in plans, designs, or specifications prepared, approved, or used by the Architect; or (B) negligence of the Architect in the rendition or conduct of professional duties called for or arising out of the Contract Documents and the plans, designs or specifications that are a part of the Contract Documents; and .2 arises from: (A) personal injury or death; (B) property injury; or (c) any other expense that arises from personal injury, death or property injury. 8.8.3 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 this Paragraph 9.12, 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. 8.9 CLAIMS MADE POLICIES 8.9.1 With respect to any of the insurance policies provided by Contractor pursuant to the Contract Documents which are "claims made" policies, in the event at any time any such policies are canceled or not renewed, Contractor shall provide a substitute insurance policy(ies) with terms and conditions and in amounts which comply with the terms of the Contract Documents and which provide for retroactive coverage to the date of cancellation or non - renewal to fill any gaps in coverage which may exist due to the cancellation or non - renewal of the prior "claims made "policies. With respect to all "claims made" policies which are renewed, Contractor shall provide coverage retroactive to the date of commencement of the Work in said renewed policy. All said substitute or renewed "claims made" policies shall be maintained in full force and effect for the longer of (i) two years from the date of completion of the work or (ii) as otherwise required by the Contract Documents. A certificate evidencing continuation of such policies shall be submitted with the final Application for Payment as required by Subparagraph 9.10.2. Nothing herein shall affect the continuing effect of the indemnity clauses in the Contract Documents. 5 Bidding Requirements, Contract Forms & Conditions of the Contract General Conditions Section 00700 TABLE OF CONTENTS OF GENERAL CONDITIONS Article Page Number & Title Number 1. DEFINITIONS 2 2. PRELIMINARY MATTERS 4 3. CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE 6 4. AVAILABILITY OF LANDS; SUBSURFACE AND PHYSICAL CONDITIONS; REFERENCE POINTS 6 5. BONDS AND INSURANCE 8 6. CONTRACTORS RESPONSIBILITIES 10 7. OTHER WORK 16 8. OWNERS RESPONSIBILITIES 17 9. ENGINEER/ARCHITECTS STATUS DURING CONSTRUCTION 18 10. CHANGES IN THE WORK 19 11. CHANGE OF CONTRACT AMOUNT 20 12. CHANGE OF CONTRACT TIMES 22 13. TESTS AND INSPECTIONS; AND CORRECTION OR REMOVAL OF DEFECTIVE WORK 23 14. PAYMENTS TO CONTRACTOR AND COMPLETION 25 15. SUSPENSION OF WORK AND TERMINATION 29 16. DISPUTE RESOLUTION 30 17. MISCELLANEOUS 31 00700 05127/03 Page 1 General Conditions 00009166 GENERAL CONDITIONS ARTICLE 1 - DEFINITIONS Whenever used in these General Conditions or in the other Contract Documents the following terms have the meanings indicated which are applicable to both the singular and plural thereof: 1.1 Addenda - Written or graphic instruments issued prior to the receipt of Proposals or the opening of Bids that clarify, correct or change the proposal or bidding requirements or the Contract Documents. 1.2 Agreement - Prescribed form, referenced as Section 00500. 1.3 Alternative Dispute Resolution - The process by which a disputed Claim may be settled if the OWNER and the CONTRACTOR cannot reach an agreement between themselves, as an alternative to litigation. 1.4 Bid - Proposal of bidder on prescribed forms setting forth prices for performing the Work described in the Contract Documents. 1.5 Bid Documents - The advertisement or invitation for bids, instructions to bidders, the bid form, the Contract Documents and Addenda. 1.6 Calendar Dav - Any day of the week; no days being excepted. Work on Saturdays, Sundays, and/or Legal Holidays shall only be conducted with prior express written consent of the OWNER. 1.7 Change Directive - A written directive to the CONTRACTOR, signed by the OWNER, ordering a change in the Work and stating a proposed basis for adjustment, if any, in the Contract Amount or Contract Time, or both. A Change Directive may be used in the absence of total agreement on the terms of a Change Order. A Change Directive does not change the Contract Amount or Contract Time, but is evidence that the parties expect that the change directed or documented by a Change Directive will be incorporated in a subsequently issued Change Order. 1.8 Change Orders - Written agreements entered into between the CONTRACTOR and the OWNER authorizing an addition, deletion, or revision to the Contract, issued on or after the Execution Date of the Agreement and within the Contract term. 1.9 Claim - A written demand seeking, as a matter of right, adjustment or interpretation of Contract terms, payment of money, extension of time or other relief with respect to the terms of the Contract. 1.10 Contract - The Contract represents the entire and integrated agreement between the OWNER and the CONTRACTOR for performance of the Work, as evidenced by the Contract Documents. 1.11 Contract Amount - The amount payable by the OWNER to the CONTRACTOR for completion of the Work in accordance with the Contract Documents. 1.12 Contract Documents - Project Manual, Drawings, Addenda and Change Orders. 1.13 Contract Time - The number of days allowed for completion of the Work as defined by the Contract. When any period is referred to in days, it will be computed to exclude the first and include the last day of such period. A day of twenty -four (24) hours measured from midnight to the next midnight will constitute a day. 1.14 CONTRACTOR - The individual, firm, corporation, or other business entity with whom the OWNER has entered into the Contract. 1.15 Drawings - Those portions of the Contract Documents which are graphic representations of the scope, extent and character of the Work to be furnished and performed by the CONTRACTOR and which have been approved by the OWNER. Drawings may include plans, elevations, sections, details, schedules and diagrams. Shop Drawings are not Drawings as so defined. 1.16 Engineer /Architect (E/A) - The OWNER's design professional identified as such in the Contract. The titles of "Architect/Engineer," "Architect" and "Engineer" used in the Contract Documents shall be read the same as Engineer /Architect (EIA). Nothing contained in the Contract Documents shall create any contractual or agency relationship between E/A and the CONTRACTOR. 1.17 Equal - The terms "equal" or 'approved equal" shall have the same meaning. 1.18 Execution Date - Date of last signature of the parties to the Agreement. 1.19 Field Order - A written order issued by Owner's Representative which orders minor changes 00700 05127103 Page 2 General Conditions in the Work and which does not involve a change in the Contract Amount or the Contract Time. 1.20 Final Acceptance — The stage in the Contract process when, in the OWNER's opinion, Final Completion of the Work has been attained and a Certificate of Acceptance approved by the OWNER is issued. 1.21 Final Completion - The stage in the progress of the Work when, in the OWNER's opinion, the entire Work has been completed, the CONTRACTOR's obligations under the Contract Documents have been fulfilled, and the OWNER is processing or has made final payment to the CONTRACTOR, as evidenced by a Certificate of Acceptance approved by the OWNER. 1.22 Inspector - The authorized representative of any regulatory agency that has jurisdiction over any portion of the Work. 1.23 Legal Holidays 1.23.1 The following are recognized by the OWNER: Holiday Date Observed New Year's Day January 1 Martin Luther King, Jr.'s Birthday President's Day Memorial Day Independence Day Labor Day Third Monday in January Third Monday in February Last Monday in May July 4 First Monday in September Veteran's Day November 11 Thanksgiving Day Fourth Thursday in November Friday after Friday after Thanksgiving Thanksgiving Christmas Eve December 24 Christmas Day December 25 1.23.2 If a Legal Holiday falls on Saturday, it will be observed on the preceding Friday. If a Legal Holiday falls on Sunday, it will be observed on the following Monday. 1.23.3 If Christmas Eve falls on a Saturday or a Sunday, the preceding Friday is observed as the Christmas Eve holiday. 1.23.4 If Christmas Day falls on a Saturday or a Sunday, the following Monday is observed as the Christmas Day holiday. 1.24 Milestones - A significant event specified in the Contract Documents relating to an intermediate completion date or time prior to Substantial Completion of all the Work. 1.25 Notice to Proceed - A Written Notice given by the OWNER to the CONTRACTOR fixing the date on which the Contract Times will commence to run and on which the CONTRACTOR shall start to perform the CONTRACTOR's obligations under the Contract Documents. 1.26 OWNER — The City of Round Rock, Texas, a municipal corporation, home -rule city and political subdivision organized and existing under the laws of the State of Texas, acting through the City Manager or his/her designee, officers, agents or employees to administer design and construction of the Project. 1.27 Owner's Representative - The designated representative of the OWNER. 1.28 Partial Occupancy or Use - Use by the OWNER of a substantially completed part of the Work for the purpose for which it is intended (or a related purpose) prior to Substantial Completion of all the Work, provided the OWNER and the CONTRACTOR have accepted in writing the responsibilities assigned to each of them for payments, retainage If any, security, maintenance, utilities, corrective work, insurance and warranties. 1.29 Project - The total construction of which the Work to be provided under the Contract Documents may be the whole, or a part, as indicated elsewhere in the Contract Documents. 1.30 Project Manual - That portion of the Contract Documents which may include the following: introductory information; bidding requirements, Contract forms and General and Supplemental General Conditions; General Requirements; Specifications; Drawings; Project Safety Manual; and Addenda. 1.31 Proposal — Proposal of Offeror, under Local Govemment Code §271.113 providing for alternative 00700 05/27/03 Page 3 General Conditions project delivery methods, on prescribed forms setting forth prices for performing the Work described in the Contract Documents. 1.32 Proposal Documents — The advertisement or invitation for Proposals, Instruction to Offerors, the Proposal form, the Contract Documents and Addenda. 1.33 Resident Project Representative - The authorized representative of E/A who may be assigned to the site or any part thereof. 1.34 Shop Drawings - All drawings, diagrams, illustrations, schedules and other data or information which are specifically prepared or assembled by or for the CONTRACTOR and submitted by the CONTRACTOR as required by the Contract Documents. 1.35 Specifications - Those portions of the Contract Documents consisting of written technical descriptions as applied to the Work, which set forth to the CONTRACTOR, in detail, the requirements which must be met by all materials, equipment, construction systems, standards, workmanship, equipment and services in order to render a completed and useful project. 1.36 Substantial Completion - The stage in the progress of the Work when the Work, or designated portions thereof, may still require minor modifications or adjustments but, in the OWNER's opinion, is sufficiently complete in accordance with the Contract Documents so that the OWNER can occupy or utilize the Work for its intended use, as evidenced by a Certificate of Substantial Completion approved by the OWNER_ 1.37 Subcontractor - An individual, firm, or corporation having a direct contract with the CONTRACTOR for the performance of a part of the Work. 1.38 Sub - subcontractor - A person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the Work. 1.39 Superintendent - The representative of the CONTRACTOR authorized in writing to receive and fulfill instructions from Owner's Representative, and who shall supervise and direct construction of the Work. 1.40 Supplemental General Conditions - The part of the Contract Documents which amends or supplements the General Conditions. All General Conditions which are not so amended or so supplemented shall be considered as remaining in full force and effect. 1.41 Supplier - An individual or entity having a direct contract with the CONTRACTOR or with any Subcontractor to furnish materials or equipment to be incorporated in the Work by the CONTRACTOR or any Subcontractor. 1.42 Time Extension Request - An approved request for time extension on a form acceptable to the OWNER. 1.43 Work - The entire completed construction, or the various separately identifiable parts thereof, required to be furnished under the Contract Documents. 1.44 Working Day - Any day of the week, not including Saturdays, Sundays, or Legal Holidays, in which conditions not under the CONTRACTOR's control will permit work for at least seven (7) hours of the Working Times. Upon authorization by the Owner's Representative, work on Saturdays, Sundays and /or Legal Holidays may be allowed and a Working Day will be counted for each such day. 1.45 Working Times — Times of day(s) during which work may be performed. Unless authorized by Owner's Representative, all Work shall be performed between 7:00 a.m. and 6:00 p.m. on weekdays and, if previously authorized as provided for in paragraph 1.44 or paragraph 1.6 herein, as applicable, between 9:00 a.m. and 6:00 p.m. on Saturdays, Sundays or Legal Holidays. When the CONTRACTOR has been authorized to perform Work during hours outside Working Times, such hours shall be considered time worked on Working Day contracts. Notwithstanding the preceding, emergency work may be done without prior permission only as provided in paragraph 6.11.5 herein. 1.46 Written Notice - Written communication between the OWNER and the CONTRACTOR. Written Notice shall be deemed to have been duly served if delivered in person to Owner's Representative or the CONTRACTOR's duly authorized representative, or if delivered to or sent by registered or certified mail to the attention of Owner's Representative or the CONTRACTOR's duly authorized representative at the last business address known to the party giving notice. ARTICLE 2 - PRELIMINARY MATTERS 2.1 Delivery of Agreement, Bonds, Insurance, and Other Documentation: 00700 05/27/03 - Page 4 General Conditions Within ten (10) Calendar Days after written notification of award of Contract, the CONTRACTOR shall deliver to the OWNER signed Agreement, Bond(s), Insurance Certificate(s) and other documentation required for execution of the Contract. 2.2 Copies of Documents: The OWNER shall furnish to the CONTRACTOR two (2) copies of the Contract Documents unless otherwise specified. Additional copies will be furnished, upon request, at the cost specified in the Supplemental General Conditions. 2.3 Commencement of Contract Times; Notice to Proceed: The Contract Time(s) will begin to run on the day indicated in the Notice to Proceed. Notice to Proceed will be given at any time within sixty (60) Calendar Days after the Execution Date of the Agreement, unless extended by written agreement of the parties. 2.4 Before Starting Construction: 2.4.1 No Work shall be done at the site prior to the preconstruction conference without the OWNER's approval. Before undertaking each part of the Work, the CONTRACTOR shall carefully study and compare the Contract Documents and check and verify pertinent figures shown thereon and all applicable field measurements. The CONTRACTOR shall promptly report in writing to Owner's Representative any conflict, error, ambiguity or discrepancy which the CONTRACTOR may discover and shall obtain a written interpretation or clarification from Owner's Representative before proceeding with any Work affected thereby. The CONTRACTOR shall be liable to the OWNER for failure to report any conflict, error, ambiguity or discrepancy in the Contract Documents of which the CONTRACTOR knew or reasonably should have known. 2.4.2 The CONTRACTOR shall submit the following to Owner's Representative for review and approval no later than the preconstruction conference: .1 a preliminary progress schedule indicating the times (number of days or dates) for starting and completing the various stages of the Work, including any Milestones specified in the Contract Documents, identifying when all Subcontractors will be utilized, and taking into consideration any limitations on Working Hours; .2 a preliminary schedule of Shop Drawing and sample submittals; .3 a preliminary schedule of values for all of the Work, subdivided into component parts in sufficient detail to serve as the basis for progress payments during construction. Such prices will include an appropriate amount of overhead and profit applicable to each item of Work; .4 a letter designating CONTRACTOR'S Superintendent; .5 a letter from the CONTRACTOR and Subcontractor(s) listing any salaried specialists; .6 if applicable, a letter designating the "Competent Person(s)" on general safety and trench safety measures; .7 if applicable, a trench safety system plan; .8 if applicable, a plan illustrating proposed locations of temporary facilities; .9 if applicable, a traffic control plan; .10 a completed Non -Use of Asbestos Affidavit (Prior to Construction); and .11 if applicable, a letter designating the Texas Registered Professional Land Surveyor for layout of the Work. 2.5 Preconstruction Conference: Prior to commencement of Work at the site, a preconstruction conference attended by the CONTRACTOR, Owner's Representative and others will be held. 2.6 Initially Acceptable Schedules: Unless otherwise provided in the Contract Documents, the CONTRACTOR shall obtain approval of Owner's Representative on final versions of the schedules submitted in accordance with paragraph 2.4.2 before the first progress payment will be made to the CONTRACTOR. The progress schedule must provide for an orderly progression of the Work to completion within any specified 00700 05/27/03 Page 5 General Conditions Milestones and Contract Times. Acceptance of the schedule by Owner's Representative will neither impose on Owner's Representative responsibility for the sequencing, scheduling or progress of the Work nor interfere with or relieve the CONTRACTOR from the CONTRACTOR's full responsibility therefor. The CONTRACTOR's schedule of Shop Drawings and sample submissions must provide an arrangement agreeable to the parties for reviewing and processing the required submittals. ARTICLE 3 - CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE 3.1 Intent: 3.1.1 The intent of the Contract Documents is to Include all information necessary for the proper execution and completion of the Work by the CONTRACTOR. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all; performance by the CONTRACTOR shall be required to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the intended results. 3.1.2 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. 3.2 Reporting and Resolving Discrepancies: If, during the performance of the Work, the CONTRACTOR discovers any conflict, error, ambiguity or' discrepancy within the Contract Documents or between the Contract Documents and any provisions of any such law or regulation applicable to the performance of the Work or of any such standard, specification, manual or code or instructions of any Supplier, the CONTRACTOR shall immediately report it to Owner's Representative in writing, and the CONTRACTOR shall not proceed with the Work affected thereby until an amendment or supplement to the Contract Documents has been issued by one of the methods indicated in paragraph 3.3.1 or paragraph 3.3.2. The CONTRACTOR shall be liable to the OWNER for failure to report any such conflict, error, ambiguity or discrepancy of which the CONTRACTOR knew or reasonably should have known. 3.3 Amending and Supplementing Contract Documents: 3.3.1 The Contract Documents may be amended to provide for additions, deletions and revisions in the Work or to modify the terms and conditions thereof in one or more of the following ways: .1 Change Order. .2 Change Directive. .3 Time Extension Request. 3.3.2 In addition, the requirements of the Contract Documents may be supplemented, and minor variations and deviations in the Work may be authorized, in one or more of the following ways: .1 Field Order. .2 Review of a Shop Drawing or sample. .3 Written interpretation or clarification. 3.4 Reuse of Documents Prohibited: The CONTRACTOR and any Subcontractor or Supplier or other person or organization performing or furnishing any of the Work under a direct or indirect contract with the OWNER: (i) shall not have or acquire any title to or ownership rights in any of the Drawings, Specifications or other documents (or copies of any thereof) prepared by or bearing the seal of E/A or E/A's consultants, and (ii) shall not reuse any of such Drawings, Specifications, other documents or copies on extensions of the Project or any other project without written consent of the OWNER and E/A. ARTICLE 4 - AVAILABILITY OF LANDS; SUBSURFACE AND PHYSICAL CONDITIONS; REFERENCE POINTS 4.1 Availability of Lands: The OWNER shall furnish, as indicated in the Contract Documents, all required rights to use the lands upon which the Work is to be performed, rights - of-way and easements for access thereto, and such other lands which are designated for the use of the CONTRACTOR. The OWNER shall identify any encumbrances or restrictions not of general application but specifically related to use of lands so furnished with which the CONTRACTOR will have to comply in performing the Work. Easements for permanent structures or permanent changes in existing facilities will be obtained and paid for by the OWNER, unless otherwise provided in the Contract 00700 05/27103 Page 6 General Conditions Documents. If the OWNER fails to furnish these lands, rights -of -way or easements in a timely manner, the CONTRACTOR may make a Claim for adjustments in the Contract Times. The CONTRACTOR shall provide for all additional lands and access thereto that may be required for temporary construction facilities or storage of materials and equipment. 4.2 Subsurface and Physical Conditions: 4.2.1 The CONTRACTOR hereby covenants that it has examined the site of the proposed Work and is familiar with all of the conditions surrounding construction of the Project, having conducted all inquiries, tests and investigations deemed necessary and proper. 4.2.2 If conditions are encountered at the site which are (1) subsurface or otherwise concealed physical conditions that differ materially from those indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature, that differ materially from those normally encountered in the type of work being performed under this Contract, then notice by the observing party shall be given to the other party promptly before conditions are disturbed and in no event later than seven (7) calendar days after first observance of the conditions. Owner's Representative will promptly investigate such conditions with E/A and, if they differ materially and cause an increase or decrease in the CONTRACTOR's cost of, or time required for, performance of any part of the Work, will recommend an equitable adjustment in the Contract Amount or Contract Time, or both. If Owner's Representative determines that the conditions at the site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified, the CONTRACTOR shall be notified in writing, stating the reasons. Any disputes arising from Owner's Representative's determination shall be resolved in accordance with Article 16. 4.2.3 Notwithstanding any other provision of this Contract, the CONTRACTOR shall be solely responsible for the location and protection of any and all public lines and utility customer service lines in the Work area. For the purposes of this section, "public lines" means the utility distribution and supply system within public rights -of -way or easements, and "utility customer service lines" (service) means any utility line connecting a utility customer to the utility distribution system. Generally, existing service connections within right -of -way or easements are not shown on the Drawings. The CONTRACTOR shall notify the OWNER and "One Call" and exercise due care to locate and to mark, uncover or otherwise protect all such lines in the construction zone and any of the CONTRACTOR's work or storage areas. The CONTRACTOR's obligation hereunder shalt be primary and nondelegable. The CONTRACTOR shall indemnify or reimburse such expenses or costs (including fines that may be levied against the OWNER) that may result from unauthorized or accidental damage to all public lines and utility customer service lines in the Work area. The OWNER reserves the right to repair such damage the CONTRACTOR may cause, at the CONTRACTOR's expense. 4.2.4 The CONTRACTOR shall take reasonable precaution to avoid disturbing primitive records and antiquities of archaeological, paleontological or historical significance. No objects of this nature shall be disturbed without written permission of the OWNER and the Texas Department of Antiquities Protection. When such objects are uncovered unexpectedly, the CONTRACTOR shall stop all Work in close proximity and notify Owner's Representative and the Texas Department of Antiquities Protection of their presence and shall not disturb them until written permission and permit to do so is granted. All primitive rights and antiquities uncovered on the OWNER'S property shall remain property of the State of Texas, the Texas Department of Antiquities Protection conforming to the Texas Natural Resources Code. If it is determined by the OWNER, in consultation with the Texas Department of Antiquities Protection, that exploration or excavation of primitive records or antiquities on Project site is necessary to avoid loss, the CONTRACTOR shall cooperate in salvage work attendant to preservation. If the Work stoppage or salvage work causes an increase in the CONTRACTOR's cost of, or time required for, performance of the Work, the Contract Amount and /or Contract Time may be equitably adjusted. 4.3 Reference Points: Unless otherwise specified, the OWNER will furnish all reference points, benchmarks, survey monuments, and control points which, in the OWNER's opinion, are suitable for laying out the Work. Such benchmarks and reference points will be placed at intervals not to exceed 1,500 feet. All reference points, benchmarks, survey monuments and control points shall be carefully preserved by the CONTRACTOR by use of flags, laths or other appropriate measures and, in case of destruction or removal by the CONTRACTOR or its employees, such reference points, benchmarks, survey monuments, and control points shall be replaced by a Registered Professional Land Surveyor at the CONTRACTOR's expense. When 00700 05/27/03 Page 7 General Conditions reference points, benchmarks, survey monuments, or control points are in conflict with the Work, then reestablishment will be the OWNER's responsibility during or upon completion of the Work. 4.4 Hazardous Materials: 4.4.1 The OWNER shall be responsible for any hazardous material uncovered or revealed at the site which was not shown, indicated or identified in the Contract Documents to be within the scope of the Work and which may present a substantial danger to persons or property exposed thereto in connection with the Work at the site. The CONTRACTOR shall immediately notify Owner's Representative of any suspected hazardous materials encountered before or during performance of the Work and shall take all necessary precautions to avoid further disturbance of the materials. 4.4.2 The CONTRACTOR shall be responsible for any hazardous materials brought to the site by the CONTRACTOR, Subcontractor, Suppliers or anyone else for whom the CONTRACTOR is responsible. 4.4.3 No asbestos- containing materials shall be incorporated into the Work or brought on the Project site without prior approval of the OWNER. ARTICLE 5 - BONDS AND INSURANCE 5.1 Surety and Insurance Companies: All bonds and insurance required by the Contract Documents shall be obtained from solvent surety or insurance companies that are duly licensed by the State of Texas and authorized to issue bonds or insurance policies for the limits and coverages required by the Contract Documents. The bonds shall be in a form acceptable to the OWNER and shall be issued by a surety which complies with the requirements of Art. 7.19 -1, Texas Insurance Code (1997) and which is otherwise acceptable to the OWNER. 5.2 Workers' Compensation Insurance Coverage: 5.2.1 Definitions: .1 Certificate of coverage ( "certificate ") - A copy of a certificate of insurance, a certificate of authority to self- insure issued by the commission, or a coverage agreement showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on the Project, for the duration of the Project. .2 Duration of the Project - includes the time from the beginning of the Work on the Project until the CONTRACTOR's/ person's Work on the Project has been completed and accepted by the OWNER. .3 Persons providing services on the Project ( "subcontractor" herein) - includes all persons or entities performing all or part of the services the CONTRACTOR has undertaken to perform on the Project, regardless of whether that person contracted directly with the CONTRACTOR and regardless of whether that person has employees. This includes, by way of illustration and not of limitation, independent contractors, Subcontractors, leasing companies, motor carriers, owner - operators. employees of any such entity, or employees of any entity which furnishes persons to provide services on the Project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the Project, such as food /beverage vendors, office supply deliveries, and delivery of portable toilets. 5.2.2 The CONTRACTOR shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the CONTRACTOR providing services on the Project, for the duration of the Project. 5.2.3 The OWNER will not execute the Contract prior to the CONTRACTOR providing all required certificates of coverage. 5.2.4 If the coverage period shown on the CONTRACTOR's current certificate of coverage ends during the duration of the Project, the CONTRACTOR must, prior to the end of the coverage period, file a new certificate of coverage with the OWNER showing that coverage has been extended. 00700 05/27 /03 Page 8 General Conditions 5.2.5 The CONTRACTOR shall obtain from each person providing services on the Project, and provide to the OWNER: .1 a certificate of coverage, prior to that person beginning Work on the Project, so the OWNER will have on file certificates of coverage showing coverage for all persons providing services on the Project; and .2 no later than seven (7) days after receipt by the CONTRACTOR, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the Project. 5.2.6 The CONTRACTOR shall retain all required certificates of coverage for the duration of the Project and for one (1) year thereafter. 5.2.7 The CONTRACTOR shall notify the OWNER in writing by certified mail or personal delivery within ten (10) days after the CONTRACTOR knew or should have known of any change that materially affects the provision of coverage of any person providing services on the Project. 5.2.8 The CONTRACTOR shall post at its office or on each Project site a notice, in the text, form and manner prescribed by the Texas Workers' Compensation Commission, informing all persons providing services on the Project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. 5.2.9 The CONTRACTOR shall contractually require each person with whom it contracts to provide services on a Project to: .1 provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, which meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the Project, for the duration of the Project; .2 provide to the CONTRACTOR, prior to that person beginning Work on the Project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the Project, for the duration of the Project; .3 provide the CONTRACTOR, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the Project; .4 obtain from each other person with whom it contracts, and provide to the CONTRACTOR: a) a certificate of coverage, prior to the other person beginning Work on the Project; and b) a new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the Project; .5 retain all required certificates of coverage on file for the duration of the Project and for one (1) year thereafter; .6 notify the OWNER in writing by certified mail or personal delivery within ten (10) days after the person knew or should have known of any change that materially affects the provision of coverage of any person providing services on the Project; and .7 contractually require each person with whom it contracts, to perform as required by paragraphs 5.2.9.1 - 5.2.9.7, with the certificates of coverage to be provided to the person for whom they are providing services. 5.2.10 By signing this Contract or providing or causing to be provided a certificate of coverage, the CONTRACTOR is representing to the OWNER that all employees of the CONTRACTOR who will provide services on the Project will be covered by workers' compensation coverage for the duration of the Project, that the coverage will be based on proper reporting of classification codes and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self- insured, with the commission's Division of Self- Insurance Regulation. Providing false or misleading information may subject the CONTRACTOR to administrative penalties, criminal penalties, civil penalties, or other civil actions. 00700 05/27/03 Page 9 General Conditions 5.2.11 The CONTRACTOR'S failure to comply with any of these provisions is a breach of Contract by the CONTRACTOR which entitles the OWNER to declare the Contract void if the CONTRACTOR does not remedy the breach within ten (10) days after receipt of notice of breach from the OWNER. 5.3 Other Bond and Insurance Requirements: For specific bond requirements and additional insurance requirements, refer to the Supplemental General Conditions. ARTICLE 6 - CONTRACTOR'S RESPONSIBILITIES 6.1 Supervision and Superintendence: 6.1.1 The CONTRACTOR shall supervise, inspect and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be nececary to perform the Work in accordance with the Contract Documents. Unless otherwise directed by the OWNER in the Contract Documents, the CONTRACTOR shall be solely responsible for the means, methods, techniques, sequences and procedures of construction. The CONTRACTOR shall be responsible to see that the completed Work complies accurately with the Contract Documents. 6.1.2 The CONTRACTOR shall have an English - speaking, competent Superintendent on the Work at all times that work is in progress. Upon request of Owner's Representative, the CONTRACTOR shall present the resume of the proposed Superintendent to Owner's Representative showing evidence of experience and successful superintendence and direction of work of a similar scale and complexity. If, in the opinion of Owner's Representative, the proposed Superintendent does not indicate sufficient experience in line with the Work, he/she will not be allowed to be the designated Superintendent for the Work. The Superintendent shall not be replaced without Written Notice to Owner's Representative. If the CONTRACTOR deems it necessary to replace the Superintendent, the CONTRACTOR shall provide the necessary information for approval, as stated above, on the proposed new Superintendent. A qualified substitute Superintendent may be designated in the event that the designated Superintendent is temporarily away from the Work, but not to exceed a time limit acceptable to Owner's Representative. The CONTRACTOR shall replace the Superintendent upon the OWNER's request in the event the Superintendent is unable to perform to the OWNER's satisfaction. The Superintendent will be the CONTRACTOR's representative on the Work and shall have the authority to act on behalf of the CONTRACTOR. All communications given to the Superintendent shall be as binding as if given to the CONTRACTOR. Either the CONTRACTOR or the Superintendent shall provide an emergency and home telephone number at which one or the other may be reached if necessary when work is not in progress. 6.2 Labor, Materials and Equipment: 6.2.1 The CONTRACTOR agrees to employ only orderly and competent workers, skillful in performance of the type of Work required under this Contract. The CONTRACTOR, Subcontractors, Sub - subcontractors, and their employees may not use or possess any firearms, alcoholic or other intoxicating beverages, illegal drugs or controlled substances while on the job or on the OWNER's property, nor may such workers be intoxicated, or under the influence of alcohol or drugs, on the job. If the OWNER or Owner's Representative notifies the CONTRACTOR that any worker is incompetent, disorderly or disobedient, has knowingly or repeatedly violated safety regulations, has possessed any firearms, or has possessed or was under the influence of alcohol or drugs on the job, the CONTRACTOR shall immediately remove such worker from performing Contract Work, and may not employ such worker again on Contract Work without the OWNER's prior written consent. The CONTRACTOR shall at all times maintain good discipline and order on or off the site in all matters pertaining to the Project. The CONTRACTOR shall pay workers no less than the wage rates established in Section 00830, and maintain weekly payroll reports as evidence thereof. 6.2.2 Unless otherwise specified, the CONTRACTOR shall provide and pay for all materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities and all other facilities and incidentals necessary for the furnishing, performance, re- testing of defective work, start-up and completion of the Work. 6.2.3 All materials and equipment shall be of good quality and new (including new products made of recycled materials), except as otherwise provided in the Contract Documents. tf required by Owner's Representative, the CONTRACTOR shall furnish satisfactory evidence (reports of required tests, manufacturer's certificates of compliance with material requirements, mill reports, etc.) as to the kind, quantity and quality of materials and 00700 05/27/03 Page 10 General Conditions equipment. All materials and equipment shall be applied, installed, connected, erected, used, leaned and conditioned in accordance with instructions of the applicable Supplier, except as otherwise provided in the Contract Documents. 6.2.4 Substitutes and "Approved Equal" Items: 6.2.4.1 Whenever an item of material or equipment is specified or described in the Contract Documents by using the name of a proprietary item or the name of a particular Supplier, the specification or description is intended to establish the type, function and quality required. Unless the specification or description contains words reading that no like, equivalent or "approved equal" item or no substitution is permitted, other items of material or equipment of other Suppliers may be submitted to Owner's Representative under the following circumstances: .1 "Approved Equal ": If, in the OWNER's sole discretion, an item of material or an item of equipment proposed by the CONTRACTOR is functionally equal to that named and sufficiently similar so that no change in related Work will be required, it may be considered by the OWNER as an "approved equal" item, in which case review of the proposed item may, in the OWNER's sole discretion, be accomplished without compliance with some or all of the requirements for evaluation of proposed substitute items. The CONTRACTOR shall provide the OWNER with the documentation required for the OWNER to make its determination. .2 Substitute Items: If, in the OWNER's sole discretion, an item of material or an item of equipment proposed by the CONTRACTOR does not qualify as an "approved equal" item under paragraph 6.2.4.1.1, then it will be considered a proposed substitute item. The CONTRACTOR shall submit sufficient information to allow the OWNER to determine that the item of material or item of equipment proposed is essentially equivalent to that named and a substitute therefor. 6.2.4.2 Substitute Construction Methods and Procedures: If a specific means, method, technique, sequence or procedure of construction is shown or indicated in and expressly required by the Contract Documents, the CONTRACTOR may with prior approval of the OWNER furnish or utilize a substitute means, method, technique, sequence, or procedure of construction. The CONTRACTOR shall submit sufficient information to Owner's Representative to allow the OWNER, in the OWNER's sole discretion, to determine that the substitute proposed is equivalent to that expressly called for by the Contract Documents. 6.2.4.3 OWNER's Evaluation: The OWNER will be allowed a reasonable time within which to evaluate each proposal or submittal made pursuant to paragraph 6.2.4.1.1 and paragraph 6.2.4.1.2. The OWNER will be the sole judge of acceptability. No "approved equal" or substitute shall be ordered, installed, or utilized until the OWNER's review is complete, which will be evidenced by either a Change Order or completion of the Shop Drawing review procedure. The OWNER may require the CONTRACTOR to furnish at the CONTRACTOR's expense a special performance guarantee or other surety bond with respect to any "approved equal" or substitute. The OWNER shall not be responsible for any delay due to review time for any "approved equal" or substitute. 6.2.4.4 CONTRACTOR's Expense: All data to be provided by the CONTRACTOR in support of any proposed "approved equal" or substitute item will be at the CONTRACTOR's expense. 6.2.5 The CONTRACTOR agrees to assign to the OWNER any rights it may have to bring antitrust suits against its Suppliers for overcharges on materials incorporated in the Project growing out of illegal price fixing agreements. The CONTRACTOR further agrees to cooperate with the OWNER should the OWNER wish to prosecute suits against Suppliers for illegal price fixing. 6.3 Progress Schedule: Unless otherwise directed, the CONTRACTOR shall adhere to the progress schedule established in accordance with paragraph 2.6 as it may be adjusted from time to time as provided below: .1 The CONTRACTOR shall submit to Owner's Representative for acceptance proposed adjustments in the progress schedule that will not change the Contract Times or Milestones. Such adjustments will conform generally to the progress schedule then in effect . .2 Proposed adjustments in the progress schedule that will change the Contract Times or Milestones shall be submitted in accordance with the requirements of Article 12. Such adjustments may only 00700 05/27/03 Page 11 General Conditions be made by a Change Order or Time Extension Request in accordance with Article 12. 6.4 Concerning Subcontractors, Suppliers and Others: 6.4.1 Assignment: The CONTRACTOR agrees to retain direct control of and give direct attention to the fulfillment of this Contract. The CONTRACTOR agrees not to, by Power of Attorney or otherwise, assign said Contract without the prior written consent of the OWNER. 6.4.2 Award of Subcontracts for Portions of the Work: The CONTRACTOR shall not employ any Subcontractor, Supplier or other person or organization, whether initially or as a substitute, against whom the OWNER may have reasonable objection. The CONTRACTOR must provide the OWNER with a list of all Subcontractors, Suppliers, or other persons or organizations it will use in the Work, and such list must be provided prior to the preconstruction conference. Should the OWNER have objections, the OWNER will communicate such objections by Written Notice. If the OWNER requires a change without good cause of any Subcontractor, person or organization previously accepted by OWNER, the Contract Amount may be increased or decreased by the difference in the cost occasioned by any such change, and an appropriate Change Order shall be issued. The CONTRACTOR shall not substitute any Subcontractor, person or organization that has been accepted by the OWNER, unless the substitute has been accepted in writing by the OWNER. No acceptance by the OWNER of any Subcontractor, Supplier or other person or organization shall constitute a waiver of any right of the OWNER to reject defective Work. 6.4.3 The CONTRACTOR shall enter into written agreements with all Subcontractors and Suppliers which specifically bind the Subcontractors or Suppliers to the applicable terms and conditions of the Contract Documents for the benefit of the OWNER and E/A. The OWNER reserves the right to specify that certain requirements shall be adhered to by all Subcontractors and Sub - subcontractors as indicated in other portions of the Contract Documents and these requirements shall be made a portion of the agreement between the CONTRACTOR and Subcontractor or Supplier. 6.4.4 The CONTRACTOR shall be fully responsible to the OWNER for all acts and omissions of the Subcontractors, Suppliers and other persons and organizations performing or furnishing any of the Work under a direct or indirect contract with the CONTRACTOR just as the CONTRACTOR is responsible for the CONTRACTOR's own acts and omissions. Nothing in the Contract Documents shall create for the benefit of any such Subcontractor, Supplier or other person or organization any contractual relationship between the OWNER and any such Subcontractor, Supplier or other person or organization, nor shall it create any obligation on the part of the OWNER or E/A to pay or to see to the payment of any amounts due any such Subcontractor, Supplier or other person or organization except as may otherwise be required by laws and regulations. 6.4.5 The CONTRACTOR shall be solely responsible for scheduling and coordinating the Work of Subcontractors, Suppliers and other persons and organizations performing or furnishing any of the Work' under a direct or indirect contract with the CONTRACTOR. The CONTRACTOR shall require all Subcontractors, Suppliers and such other persons and organizations performing or furnishing any of the Work to communicate with Owner's Representative through the CONTRACTOR. 6.4.6 The divisions and sections of the Specifications and the identifications of any Drawings shall not control the CONTRACTOR in dividing or delineating the Work to be performed by any specific trade. 6.4.7 The CONTRACTOR shall pay each Subcontractor and Supplier their appropriate share of payments made to the CONTRACTOR not later than ten (10) Calendar Days after the CONTRACTOR's receipt of payment from the OWNER. 6.5 Patent Fees and Royalties: 6.5.1 The CONTRACTOR shall be responsible at all times for compliance with applicable patents or copyrights encompassing, in whole or in part, any design, device, material, or process utilized, directly or indirectly, in the performance of the Work or the formulation or presentation of its Bid. 6.5.2 The CONTRACTOR shall pay all royalties and license fees and shall provide. prior to commencement of Work hereunder and at all times during the performance of same, for lawful use of any design, device, material or process covered by letters. patent or copyright by suitable legal agreement with the patentee, copyright holder, or their duly authorized representative whether or not a particular design, device, material, or process is speed by the OWNER. 00700 05/27/03 Page 12 General Conditions 6:5.3 The CONTRACTOR shall defend all suits or claims for infringement of any patent or copyright and shall save the OWNER harmless from any loss or liability, direct or indirect, arising with respect to the CONTRACTOR's process in the formulation of its bid or the performance of the Work or otherwise arising in connection therewith. The OWNER reserves the right to provide its own defense to any suit or claim of infringement of any patent or copyright in which event the CONTRACTOR shall indemnify and save harmless the OWNER from all costs and expenses of such defense as well as satisfaction of all judgments entered against the OWNER. 6.5.4 The OWNER shall have the right to stop the Work and /or terminate this Agreement at any time in the event the CONTRACTOR fails to disclose to the OWNER that the CONTRACTOR's work methodology includes the use of any infringing design, device, material or process. 6.6 Permits, Fees: Unless otherwise provided in the Supplemental General Conditions, the CONTRACTOR shall obtain and pay for all construction permits, licenses and fees required for prosecution of the Work. 6.7 Laws and Regulations: 6.7.1 The CONTRACTOR shall give all notices and comply with all laws and regulations applicable to furnishing and performing the Work. Except where otherwise expressly required by applicable laws and regulations, neither the OWNER nor E/A shall be responsible for monitoring the CONTRACTOR's compliance with any laws and regulations. 6.7.2 The CONTRACTOR shall plan and execute its operations in compliance with all applicable Federal, State and local laws and regulations, including those concerning control and abatement of water pollution and prevention and control of air pollution. 6.7.3 If the CONTRACTOR performs any Work knowing or having reason to know that it is contrary to laws or regulations, then the CONTRACTOR shall bear all claims, costs, losses and damages arising therefrom; however, it shall not be the CONTRACTOR's primary responsibility to make certain that the Specifications and Drawings are in accordance with laws and regulations, but this does not relieve the CONTRACTOR of the CONTRACTOR's obligations under Article 3. 6.8 Taxes: 6.8.1 The CONTRACTOR shall pay all sales, consumer, use and other similar taxes required to be paid by the CONTRACTOR in accordance with the laws and regulations of the State of Texas. 6.8.2 The OWNER is an exempt organization as defined by Chapter 11 of the Property Tax Code of Texas and is thereby exempt from payment of Sales Tax under Chapter 151, Limited Use Sales, Excise and Use Tax, Texas Tax Code, and Article 1066 (C), Local Sales and Use Tax Act, Revised Civil Statutes of Texas. 6.9 Use of Premises: 6.9.1 The CONTRACTOR shall confine construction equipment, the storage of materials and equipment and the operations of workers to the site and land and areas identified in and permitted by the Contract Documents and other land and areas permitted by laws and regulations, rights -of -way, permits and easements, and shall not unreasonably encumber the premises with construction equipment or other materials or equipment. The CONTRACTOR shall assume full responsibility for any damage to any such land or area, or to the owner or occupant thereof or of any adjacent land or areas, resulting from the performance of the Work. Should any claim be made by any such owner or occupant because of the performance of the Work, the CONTRACTOR shall promptly settle with such other party by negotiation or otherwise resolve the claim by dispute resolution proceeding or at law. The CONTRACTOR shall indemnify, defend and hold harmless the OWNER, E/A, E/A's consultants and anyone directly or indirectly employed by any of them from and against all claims, costs, losses and damages (including court costs and reasonable attorneys' fees) arising out of or resulting from any claim or action, legal or equitable, brought by any such owner or occupant against the OWNER, E/A or any other party indemnified hereunder to the extent caused by or based upon performance of the Work or failure to perform the Work. 6.9.2 During the progress of the Work and on a daily basis, the CONTRACTOR shall keep the premises free from accumulations of waste materials, rubbish and other debris resulting from the Work. At the completion of the Work, the CONTRACTOR shall remove all waste materials, rubbish and debris from and about the premises as well as all tools, appliances, construction equipment and machinery and surplus materials. The CONTRACTOR shall leave the site clean and ready for occupancy by the OWNER at Substantial Completion of the Work. The CONTRACTOR shall, 00700 05/27/03 Page 13 General Conditions at a minimum. restore to original condition all properly not designated for alteration by the Contact Documents. 6.9.3 The CONTRACTOR shall not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor shall the CONTRACTOR subject any part of the Work or adjacent property to stresses or pressures that will endanger it. 6.10 Record Documents: The CONTRACTOR shall maintain in a safe place at the site, or other location acceptable to the OWNER, one (1) record copy of all Drawings, Specifications, Addenda, Change Orders, Change Directives, Field Orders and written interpretations and clarifications (issued pursuant to paragraph 9.5) in good order and annotated to show all changes made during construction. These record documents, together with all final samples and all final Shop Drawings, will be available to the OWNER and E/A for reference during performance of the Work. Upon Substantial Completion of the Work, these record documents, samples and Shop Drawings shall be promptly delivered to Owner's Representative. 6.11 Safety and Protection: 6.11.1 The CONTRACTOR shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. Upon request, and prior to installation of measures, the CONTRACTOR shall submit a site security plan for approval by the OWNER. By reviewing the plan or making recommendations or comments, the OWNER will not assume liability nor will the CONTRACTOR be relieved of liability for damage, injury or loss. The CONTRACTOR shall take all necessary precautions for the safety of and shall provide the necessary protection to prevent damage, injury or loss to: .1 all persons on the Work site or who may be affected by the Work; .2 all the Work and materials and equipment to be incorporated therein, whether in storage on or off the site and .3 other property at the site or adjacent thereto, including but not limited 10, trees, shrubs, lawns. walks, pavements, roadways, structures, utilities and underground facilities not designated for removal, relocation or replacement in the course of construction. 6.11.2 The CONTRACTOR shall comply with all applicable laws and regulations of any public body having jurisdiction for safety of persons or property or to protect them from damage, injury or loss; and shall erect and maintain all necessary safeguards for such safety and protection. The CONTRACTOR shall notify owners of adjacent property and of underground facilities, and utility owners when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation and replacement of their property. All damage, injury or loss to any property referred to in paragraph 6.11.1.2 and paragraph 6.11.1.3 caused, directly or indirectty, in whole or in part, by the CONTRACTOR, Subcontractor, Supplier or any person or organization directly or indirectly employed by any of them to perform or furnish any of the Work or anyone for whose acts any of them may be liable, shall be remedied by the CONTRACTOR (except damage or loss attributable to the fault of Drawings or Specifications or to the acts or omissions of the OWNER, or E/A, or E/A's consultant or anyone employed by any of them or anyone whose acts any of them may be liable, and not attributable, directly or indirectly, in whole or in part, to the faults or negligence of the CONTRACTOR or any Subcontractor, Supplier or other person or organization directly or indirectly employed by any of them). The CONTRACTOR's duties and responsibilities for safety and protection of the Work shall continue until such time as all the Work is completed and Owner's Representative has issued a notice to the OWNER and the CONTRACTOR in accordance with Article 14 that the Work is acceptable (except as otherwise expressly provided in connection with Substantial Completion). 6.11.3 Safety Representative: The CONTRACTOR shall designate a qualified and experienced safety representative at the site whose duties and responsibilities shall be the prevention of accidents and the maintaining and supervising of safety precautions and programs. Upon request of the OWNER, the CONTRACTOR shall provide certifications or other documentation of the safety representative's qualifications. 6.11.4 Hazard Communication Programs: The CONTRACTOR shall be responsible for coordinating any exchange of material safety data sheets or other hazard communication information required to be made available to or exchanged between or among employers at the site in accordance with laws and regulations. 6.11.5 Emergencies: 00700 05127/03 Page 14 General Conditions 6:11.5.1 In emergencies affecting the safety or protection of persons or the Work at the site or adjacent thereto, the CONTRACTOR, without special instruction or authorization from the OWNER or E/A, is obligated to act reasonably to prevent threatened damage, injury or loss and to mitigate damage or loss to the Work. The CONTRACTOR shall give Owner's Representative prompt written notice if the CONTRACTOR believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby. If Owner's Representative determines that a change in the Contract Documents is required because of the action taken by the CONTRACTOR in response to such an emergency, a Change Directive or Change Order will be issued to document the consequences of such action; otherwise the OWNER will not be responsible for the CONTRACTOR's emergency action. 6.11.5.2 Authorized agents of the CONTRACTOR shall respond immediately to call - out at any time of any day or night when circumstances warrant the presence on Project site of the CONTRACTOR or its agent to protect the Work or adjacent property from damage, restriction or limitation or to take such action or measures pertaining to the Work as may be necessary to provide for the safety of the public. Should the CONTRACTOR and/or its agent fail to respond and take action to alleviate such an emergency situation, the OWNER may direct other forces to take action as necessary to remedy the emergency condition, and the OWNER will deduct any cost of such remedial action from the funds due to the CONTRACTOR under this Contract. 6.11.5.3 In the event there is an accident involving injury to any individual on or near the Work, the CONTRACTOR shall notify Owner's Representative within twenty-four (24) hours of the event and shall be responsible for recording the location of the event and the circumstances surrounding the event through photographs, interviewing witnesses, obtaining medical reports and other documentation that describes the event Copies of such documentation shall be provided to Owner's Representative, for the OWNER's and E/A's records, within forty -eight (48) hours of the event. 6.12 Continuing the Work: The CONTRACTOR shall carry on the Work and adhere to the progress schedule during all disputes or disagreements with the OWNER. No Work shall be delayed or postponed pending resolution of any disputes or disagreements, except as the OWNER and the CONTRACTOR may otherwise agree in writing. 6.13 CONTRACTOR's General Warranty and Guarantee: 6.13.1 The CONTRACTOR warrants and guarantees to the OWNER that all Work will be performed in a good and workmanlike manner in accordance with the Contract Documents and will not be defective. The CONTRACTOR's warranty and guarantee hereunder excludes defects or damage caused by .1 abuse, modification or improper maintenance or operation by persons other than the CONTRACTOR, Subcontractors or Suppliers; or .2 normal wear and tear under normal usage. 6.13.2 The CONTRACTOR's obligation to perform and complete the Work in a good and workmanlike manner in accordance with the Contract Documents shall be absolute. None of the following will constitute an acceptance of Work that is not in accordance with the Contract Documents or a release of the CONTRACTOR's obligation to perform the Work in accordance with the Contract Documents: .1 observations by Owner's Representative and/or EJA; .2 recommendation of any progress or final payment by Owner's Representative; .3 the issuance of a certificate of Substantial Completion or any payment by the OWNER to the CONTRACTOR under the Contract Documents; .4 use or occupancy of the Work or any part thereof by the OWNER; .5 any acceptance by the OWNER or any failure to do so; .6 any review of a Shop Drawing or sample submittal; .7 any inspection, test or approval by others; or .8 any correction of defective Work by the OWNER. 6.14 Indemnification: 00700 05/27/03 Page 15 General Conditions 6,14.1 The CONTRACTOR shall defend, indemnify and hold harmless the OWNER, E/A, E /A's consultants and subconsultants and their respective officers, directors, partners, employees, agents and other consultants and any of them from and against all claims, costs, losses and damages (including but not limited to all fees and charges of engineers, architects, attorneys and other professionals and al court or other dispute resolution costs) arising out of or resulting from the performance of the Work, provided that any such claim, cost, loss or damage: .1 is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom, and .2 is caused in whole or in part by any negligent act or omission of the CONTRACTOR, any Subcontractor, any Supplier, any person or organization directly or indirectly employed by any of them to perform or furnish any of the Work or anyone for whose acts any of them may be liable, regardless of whether or not caused in part by any negligence or omission of a person or entity indemnified hereunder or whether liability is imposed upon such indemnified party by laws and regulations regardless of the negligence of any such person or entity. 6.14.2 The indemnification obligation under paragraph 6.14.1 shall not be limited in any way by any limitation on the amount or type of damages, or compensation or benefits payable by or for the CONTRACTOR or any such Subcontractor, Supplier or other person or organization under workers' compensation acts, disability benefit acts or other employee benefit acts. 6.14.3 The obligations of the CONTRACTOR under paragraph 6.14.1 shall not extend to the liability of the OWNER, E/A, E/A's consultants, and their officers, directors, partners, employees or agents caused primarily by negligent preparation of maps, drawings, surveys, designs or specifications upon which is placed the applicable state - authorized design professional seal of the OWNER's, E/A's or E/A's consultant's officers, directors, partners, employees or agents. 6.14.4 In the event the CONTRACTOR fails to follow the OWNER's directives concerning use of the site, scheduling or course of construction, or engages in other conduct which proximately causes damage to property based on inverse condemnation or otherwise, then and in that event, the CONTRACTOR shall indemnify the OWNER against all costs resulting from such claims. 6.14.5 In the event the CONTRACTOR unreasonably delays progress of the work being done by others on the site so as to cause loss for which the OWNER becomes liable, then the CONTRACTOR shall reimburse the OWNER for such loss. 6.15 Survival of Obligations: All representations, indemnifications, warranties and guarantees made in, required by or given in accordance with the Contract Documents, as well as all continuing obligations indicated in the Contract Documents, will survive final payment, completion and acceptance of the Work and termination or completion of the Agreement. 6.16 Losses from Natural Causes: Unless otherwise specified, all loss or damage to the CONTRACTOR arising out of the nature of the Work to be done or from action of the elements, floods or from unforeseeable circumstances in prosecution of the Work or from unusual obstructions or difficulties which may be encountered in prosecution of the Work, shaN be sustained and borne by the CONTRACTOR at its own cost and expense. 6.17 Notice of Claim: Should the CONTRACTOR suffer injury or damage to person or property because of any error, omission or act of the OWNER or of any of the OWNER's employees or agents or others for whose acts the OWNER is liable, a Claim will be made to the other party within thirty (30) calendar days of the event giving rise to such injury or damage. The provisions of this paragraph 6.17 shall not be construed as a substitute for or a waiver of the provisions of any applicable statute of limitations or statute of repose. 6.18 Liquidated Damages: The CONTRACTOR or its Surety shall be liable for liquidated damages for the CONTRACTOR's failure to timely complete the Work or any portion thereof within the Contract Time. ARTICLE 7 - OTHER WORK 7.1 The OWNER may perform other work related to the Project at the site by the OWNER's 00700 05/27/03 Page 16 General Conditions own forces, or let other contracts therefor, or have other work performed by utility owners. If the CONTRACTOR believes that delay or additional cost is involved because of such action by the OWNER, the CONTRACTOR may make a Claim as provided in Article 11 or Artide 12. 7.2 The CONTRACTOR shall afford other contractors who are in a contract with the OWNER and each utility owner (and the OWNER, if the OWNER is performing the additional work with the OWNER's employees) proper and safe access to the site and a reasonable opportunity for the introduction and storage of materials and equipment and the execution of such other work and shall properly connect and coordinate the Work with theirs. Unless otherwise provided in the Contract Documents, the CONTRACTOR shall do all cutting, fitting and patching of the Work that may be required to make its several parts come together properly and integrate with such other work. The CONTRACTOR shall not endanger any work of others by cutting, excavating or otherwise altering their work and will only cut or alter their work with the written consent of Owner's Representative and the other contractors whose work will be affected. The CONTRACTOR shall promptly remedy damage wrongfully caused by the CONTRACTOR to completed or partially completed construction or to property of the OWNER or separate contractors. 7.3 if the proper execution or results of any part of the CONTRACTOR's Work depends upon work performed by others under this Artide 7, the CONTRACTOR shall inspect such other work and promptly report to Owner's Representative in writing any delays, defects or deficiencies in such other work that render it unavailable or unsuitable for the proper execution and results of the CONTRACTOR's Work. The CONTRACTOR's failure to report will constitute an acceptance of such other work as fit and proper for integration with the CONTRACTOR's Work except for latent or non - apparent defects and deficiencies in such other work. 7.4 The OWNER shall provide for coordination of the activities of the OWNER's own forces and of each separate contractor with the Work of the CONTRACTOR, who shall cooperate with them. The CONTRACTOR shall participate with other separate contractors and Owner's Representative in reviewing their construction schedules when directed to do so. The CONTRACTOR shall make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement. The construction schedules shall then constitute the schedules to be used by the CONTRACTOR. separate contractors and the OWNER until subsequently revised. 7.5 Unless otherwise stated herein, costs caused by delays or by improperly timed activities or defective construction shall be borne by the party responsible therefor. ARTICLE 8 - OWNER'S RESPONSIBILITIES 8.1 Prior to the start of construction, the OWNER will designate in writing a person or entity to act as Owner's Representative during construction. Except as otherwise provided in these General Conditions, the OWNER shall issue all communications to the CONTRACTOR through Owner's Representative. 8.2 The OWNER will not supervise, direct, control or have authority over or be responsible for the CONTRACTOR's means, methods, techniques, sequences or procedures of construction or the safety precautions and programs incident thereto. The OWNER is not responsible for any failure of the CONTRACTOR to comply with laws and regulations applicable to furnishing or performing the Work. The OWNER is not responsible for the CONTRACTOR's failure to perform or furnish the Work in accordance with the Contract Documents. Failure or omission of the OWNER to discover, or object to or condemn any defective Work or material shalt not release the CONTRACTOR from the obligation to properly and fully perform the Contract. 8.3 The OWNER is not responsible for the acts or omissions of the CONTRACTOR, or of any Subcontractor, any Supplier, or of any other person or organization performing or furnishing any of the Work. 8.4 Information or services under the OWNER's control shall be furnished by the OWNER with reasonable promptness to avoid delay in the orderly progress of the Work. 8.5 The foregoing are in addition to other duties and responsibilities of the OWNER enumerated herein and especially those in respect to Article 4 (Availability of Lands; Subsurface and Physical Conditions; Reference Points), Article 7 (Other Work) and Artide 14 (Payments to the CONTRACTOR and Completion). 8.6 Notice of Claim: Should the OWNER suffer injury or damage to person or property because of any error, omission or act of the CONTRACTOR or of any of the 00700 05/27103 Page 17 General Conditions CONTRACTOR's employees or agents or others for whose acts the CONTRACTOR is liable, a Claim will be made to the other party within thirty (30) calendar days of the event giving rise to such injury or damage. The provisions of this paragraph 8.6 shall not be construed as a substitute for or a waiver of the provisions of any applicable statute of limitations or statute of repose. ARTICLE 9 - ENGINEERIARCHITECT'S STATUS DURING CONSTRUCTION 9.1 E/A's Authority and Responsibilities: 9.1.1 The duties and responsibilities and the limitations of authority of E/A during construction are set forth in the Contract Documents and shall not be extended without written consent of the OWNER and E/A. The assignment of any authority, duties or responsibilities to E/A under the Contract Documents, or under any agreement between the OWNER and E/A, or any undertaking, exercise or performance thereof by E/A, is intended to be for the sole and exclusive benefit of the OWNER and not for the benefit of the CONTRACTOR, Subcontractor, Supplier, or any other person or organization, or for any surety or employee or agent of any of them. 9.1.2 EJA will not supervise, direct, control or have authority over or be responsible for the CONTRACTOR's means, methods, techniques, sequences or procedures of construction, or the safety precautions and programs incident thereto. E/A is not responsible for any failure of the CONTRACTOR to comply with laws and regulations applicable to the famishing or performing the Work. EJA is not responsible for the CONTRACTOR's failure to perform or furnish the Work in accordance with the Contract Documents. Failure or omission of E/A to discover, or object to or condemn any defective Work or material shall not release the CONTRACTOR from the obligation to property and fully perform the Contract. 9.1.3 E/A is not responsible for the acts or omissions of the CONTRACTOR, or of any Subcontractor, any Supplier, or of any other person or organization performing or furnishing any of the Work. 9.1.4 If the OWNER so directs, E/A will review the final Application for Payment and accompanying documentation and all maintenance and operating instructions, schedules, guarantees, bonds and certificates of inspection, tests and approvals and other documentation required to be delivered by Article 14, but only to determine generally that their content complies with the requirements of, and in the case of certificates of inspections, tests and approvals that the results certified indicate compliance with, the Contract Documents. 9.1.5 The limitations upon authority and responsibility set forth in this paragraph 9.1 shall also apply to E/A's Consultants, Resident Project Representative and assistants. 9.2 E/A as Owner's Representative: 9.2.1 EJA may be designated as Owner's Representative under paragraph 8.1. 9.3 Visits to Site: If the OWNER so directs, E/A will make visits to the site at intervals appropriate to the various stages of construction as is necessary in order to observe as an experienced and qualified design professional the progress that has been made and the quality of the various aspects of the CONTRACTOR's executed Work. Based on information obtained during such visits and observations, E/A will endeavor for the benefit of the OWNER to determine if the Work is proceeding in accordance with the Contract Documents. E/A wit not be required to make exhaustive or continuous on -site inspections to check the quality or quantity of the Work. EIA's efforts will be directed toward providing for the OWNER a greater degree of confidence that the completed Work will conform to the Contract Documents. On the basis of such visits and on -site observations, E/A will keep the OWNER informed of the progress of the Work and will endeavor to guard the OWNER against defective Work. E/A's visits and on-site observations are subject to all the limitations on E/A's authority and responsibility set forth in paragraph 9.1. 9.4 Project Representative: If the OWNER and E/A agree, E/A will fumish a Resident Project Representative to assist E/A in providing more continuous observation of the Work. The responsibilities and authority and limitations of any such Resident Project Representative and assistants will be as provided in paragraph 9.1 and in the Supplemental General Conditions. The OWNER may designate another representative or agent to represent the OWNER at the site who is not EJA, E/A's consultant, agent or employee. 9.5 Clarifications and Interpretations: 00700 05/27/03 Page 18 General Conditions E/A may determine that written clarifications or interpretations of the requirements of the Contract Documents (in the form of drawings or otherwise) are necessary. Such written clarifications or interpretations will be consistent with the intent of and reasonably inferable from the Contract Documents, will be issued with reasonable promptness by Owner's Representative and will be binding on the OWNER and the CONTRACTOR. If the OWNER or the CONTRACTOR believes that a written clarification or interpretation justifies an adjustment in the Contract Amount or the Contract Times, the OWNER or the CONTRACTOR may make a Claim therefor as provided in Article 11 or Article 12. 9.6 Rejecting Defective Work: E/A wiN recommend that the OWNER disapprove or reject Work which E/A believes to be defective, or believes will not produce a completed Project that conforms to the Contract Documents or will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. ARTICLE 10 - CHANGES IN THE WORK 10.1 Changes: 10.1.1 Without invalidating the Contract and without notice to any surety, the OWNER may, at any time or from time to time, order additions, deletions or revisions in the Work. Such changes in the Work will be authorized by Change Order, Change Directive or Field Order. 10.1.2 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, Change Directive or Field Order. 10.1.3 The CONTRACTOR shall not be entitled to an increase in the Contract Amount or an extension of the Contract Times with respect to any Work performed that is not required by the Contract Documents as amended, modified and supplemented as provided in paragraph 3.3.1 and paragraph 3.3.2, except in the case of an emergency as provided in paragraph 6.11.5 or in the case of uncovering Work as provided in paragraph 13.4. 10.1.4 Except in the case of an emergency as provided in paragraph 6.11.5, a Change Order or Change Directive is required before the CONTRACTOR commences any activities associated with a change in the Work which, in the CONTRACTOR 's opinion, will result in a change in the Contract Amount and/or Contract Times. 10.1.5 If notice of any change affecting the general scope of the Work or the provisions of the Contract Documents (including, but not limited to, Contract Amount or Contract Times) is required by the provisions of any Bond to be given to a surety, the giving of any such notice will be the CONTRACTOR's responsibility, and the amount of each applicable Bond will be adjusted accordingly. 10.2 Change Orders: 10.2.1 The OWNER and the CONTRACTOR shall execute appropriate written Change Orders covering: .1 a change in the Work; .2 the amount of the adjustment in the Contract Amount, if any and .3 the extent of the adjustment in the Contract Time, if any. 10.2.2 An executed Change Order shall represent the complete, equitable, and final amount of adjustment in the Contract Amount and/or Contract Time owed to the CONTRACTOR or the OWNER as a result of the occurrence or event causing the change in the Work encompassed by the Change Order. 10.3 Change Directives: 10.3.1 The OWNER may by written 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 Amount and Contract Time being adjusted as necessary. A Change Directive shall be used in the absence of complete and prompt agreement on the terms of a Change Order. 10.3.2 If the Change Directive provides for an adjustment to the Contract Amount, the adjustment shall be based on the method provided in paragraph 11.5. 10.3.3 A Change Directive signed by the CONTRACTOR indicates the agreement of the CONTRACTOR with proposed basis of adjustment, if any, in Contract Amount and Contract Time. Such agreement shall be effective immediately and shall be recorded later by preparation and execution of an appropriate Change Order. 00700 05127/03 Page 19 General Conditions 1t .3.4 Upon execution of a Change Directive, the CONTRACTOR shall promptly proceed with the change in the Work involved. 10.4 Field Order. 10.4.1 Owner's Representative may authorize minor variations in the Work from the requirements of the Contract Documents which do not involve an adjustment in the Contract Amount or the Contract Times and are compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. These shall be accomplished by written Field Order and shall be binding on the OWNER and on the CONTRACTOR who shall perform the Work involved promptly. 10.4.2 If the CONTRACTOR believes that a Field Order would require an adjustment in the Contract Amount and /or Contract Times, the CONTRACTOR shall make written request to Owner's Representative for a Change Order. Any request by the CONTRACTOR for an adjustment in Contract Amount and /or Contract Times shall be made in writing prior to beginning the work covered by the Field Order_ 10.5 No Damages for Delay: The CONTRACTOR shall receive no compensation for delays or hindrances to the Work, except when direct and unavoidable extra cost to the CONTRACTOR is caused by failure of the OWNER to provide information or material, if any, which is to be furnished by the OWNER or access to the Work. When such extra compensation is claimed, a written statement thereof shall be presented by the CONTRACTOR to the OWNER and, if found to be correct by the OWNER, shall be approved. If delay is caused by specific orders given by the OWNER to stop work or by performance of extra Work or by failure of the OWNER to provide material or necessary instructions for carrying on the Work, then such delay wll entitle the CONTRACTOR to an equivalent extension of time, the CONTRACTOR's application for which shall, however, be subject to approval of the OWNER. No such extension of time shall release the CONTRACTOR or surety on its performance bond from all the CONTRACTOR's obligations hereunder which shall remain in full force until discharge of the Contract. ARTICLE 11 - CHANGE OF CONTRACT AMOUNT 11.1 The Contract Amount is stated in the Agreement and, including authorized adjustments, is the total amount payable by the OWNER to the CONTRACTOR for performance of the Work under the Contract Documents. 11.2 The original Contract Amount may not be increased by more than twenty -five percent (25 %) and it may not be decreased more than twenty -five percent (25 %) without the consent of the CONTRACTOR to such decrease 11.3 The Contract Amount shall only be changed by a Change Order. Any claim for an adjustment in the Contract Amount shall be made by Written Notice delivered by the party making the Claim to the other party promptly (but in no event later than thirty (30) calendar days) after the start of the occurrence or event giving rise to the Claim and stating the general nature of the Claim. Notice of the amount of the Claim with supporting data shall be delivered within thirty (30) calendar days after Written Notice of Claim is delivered by claimant, and shall represent that the adjustment daimed covers all known amounts to which claimant is entitled as a result of said occurrence or event. If the OWNER and the CONTRACTOR cannot otherwise agree, all Claims for adjustment in the Contract Amount shall be determined as set out in Article 16. 11.4 Determination of Value of Work: 11.4.1 The value of any Work covered by a Change Order or of any Claim for an adjustment in the Contract Amount will be determined by one or more of the following methods: .1 by application of unit prices contained in the Contract Documents to the quantities of the items involved. .2 by a mutually agreed lump sum properly itemized and supported by sufficient substantiating data to permit evaluation. .3 by cost of Work plus the CONTRACTOR's fee for all overhead costs and profit (determined as provided in paragraph 11.5). 11.4.2 Before using the method described in paragraph 11.4.1.3, the OWNER and the CONTRACTOR agree to negotiate a Change Order using the methods identified in paragraph 11.4.1.1 and paragraph 11.4.1.2, as appropriate, to determine the adjustment in the Contract Amount. 11.5 Cost of Work: If neither of the methods defined in paragraph 11.4.1.1 or paragraph 11.4.1.2 can be agreed upon 00700 05/27/03 Page 20 General Conditions before a change in the Work is commenced which will result in an adjustment in the Contract Amount, then the change in the Work will be performed by Change Directive and payment will be made as follows: .1 For al personnel, the CONTRACTOR will receive the rate or wage specified in the prevailing wage rates established in Section 00630 for each hour that said personnel are actually engaged in such Work, to which will be added an amount equal to twenty -five percent (25 %) of the sum thereof as compensation for the CONTRACTOR'S and any affected Subcontractor's total overhead and profit. No separate charge will be made by the CONTRACTOR for organization or overhead expenses. For the cost of premiums on public liability insurance, workers' compensation insurance, social security and unemployment insurance. an amount equal to fifty -five percent (55 %) of the wages paid personnel, excluding the twenty -five (25 %) compensation provided above, will be paid to the CONTRACTOR. The actual cost of the CONTRACTOR's bond(s) on the extra Work will be paid based on invoices from surety. No charge for superintendence will be made unless considered necessary and ordered by the OWNER. .2 The CONTRACTOR will receive the actual cost, including freight charges, of the materials used on such Work, to which costs will be added a sum equal to twenty -five percent (25 %) thereof as compensation for the CONTRACTOR's and any affected Subcontractor's total overhead and profit. In case material invoices indicate a discount may be taken, the actual cost will be the invoice price minus the discount. .3 For machinery, trucks, power tools, or other similar equipment agreed to be necessary by the OWNER and the CONTRACTOR, the OWNER will allow the CONTRACTOR the rate as given in the latest edition of the Associated General Contractors of America "Contractor's Equipment Cost Guide" as published by Dataquest for each hour that said tools or equipment are in use on such work, which rate includes the cost of fuel, lubricants and repairs. No additional compensation will be allowed on the equipment for the CONTRACTOR's overhead and profit. .4 The compensation, as herein provided for, shall be received by the CONTRACTOR and any affected Subcontractor as payment in full for work done by Change Directive and will include use of small tools, and total overhead expense and profit. The CONTRACTOR and the Owner's Representative shall compare records of work done by Change Directive at the end of each day. Copies of these records will be made upon forms provided for this purpose by the OWNER and signed by both Owner's Representative and the CONTRACTOR, with one (1) copy being retained by the OWNER and one (1) by the CONTRACTOR. Refusal by the CONTRACTOR to sign these records within two (2) working days of presentation does not invalidate the accuracy of the record. 11.6 Unit Price Work: 11.6.1 Where the Contract Documents provide that all or part of the Work is to be unit price Work, initially the Contract Amount will be deemed to include for all unit price work an amount equal to the sum of the established unit price for each separately identified item of unit price work times the estimated quantity of each item as indicated in the Bid. The estimated quantities of items of unit price work are not guaranteed and are solely for the purpose of comparison of Bids and determining an initial Contract Amount. Determinations of the actual quantities and classifications of unit price work performed by the CONTRACTOR will be made by Owner's Representative. Owner's Representative will review with the CONTRACTOR the preliminary determinations on such matters before rendering a written decision thereon (by recommendation of an Application for Payment or otherwise). 11.6.2 When "plan quantity" is indicated for a bid item, the CONTRACTOR shall be paid the amount specified in the Contract Documents without any measurements. 11.6.3 Each unit price will be deemed to include an amount considered by the CONTRACTOR to be adequate to cover the CONTRACTOR's overhead and profit for each separately identified item. 11.6.4 A Major Item is any individual bid item in the Bid that has a total cost equal to or greater than five 00700 05/27/03 Page 21 General Conditions percent (5%) of the original Contract Amount or $50,000, whichever is greater, computed on the basis of bid quantities and Contract unit prices. 11.6.5 The OWNER or the CONTRACTOR may make a Claim for an adjustment in the Contract Amount in accordance with Article 11 if: .1 the actual quantity of any Major Item should become as much as twenty percent (20 %) more than or twenty percent (20 %) less than in the Bid; or .2 The CONTRACTOR presents proper documentation contesting the accuracy of "plan quantity," and Owner's Representative verifies quantity and determines original quantity is in error by five percent (5 %) or more. ARTICLE 12 - CHANGE OF CONTRACT TIMES 12.1 Working Day and Calendar Day Contracts: 12.1.1 The Contract Times (or Milestones) shall only be changed by Change Order or Time Extension Request duly executed by both the CONTRACTOR and Owner's Representative. Any claim for an adjustment of the Contract Times (or Milestones) shall be made by Written Notice delivered by the party making the Claim to the other party promptly (but in no event later than thirty (30) calendar days) after the start of the occurrence or event giving rise to the delay and stating the general nature of the delay. Notice of the extent of the delay with supporting data shall be delivered within thirty (30) calendar days after Written Notice of Claim is delivered by claimant, and shall represent that the adjustment claimed is the entire adjustment to which claimant is entitled as a result of said occurrence or event. If the OWNER and the CONTRACTOR cannot otherwise agree, all Claims for adjustment in the Contract Times (or Milestones) shall be determined as set out in Article 16. No Claim for an adjustment in the Contract Times (or Milestones) will be valid if not submitted in accordance with the requirements of this paragraph. 12.1.2 When the CONTRACTOR is at fault and the OWNER stops the Work so that corrections in the Work can be made by the CONTRACTOR, then no extension in time will be allowed. 12.1.3 When the CONTRACTOR is prevented from completing any part of the Work within the Contract Times (or Milestones) due to delay beyond the control of both the OWNER and the CONTRACTOR, an extension of the Contract Times (or Milestones) in an amount equal to the time lost due to such delay shall be the CONTRACTOR's sole and exclusive remedy for such delay. However, adverse weather shall not be considered justification for extension of Contract Times on Calendar Day contracts except as provided for in paragraph 12.2. 12.1.4 The OWNER will consider time extension requests and may grant the CONTRACTOR an extension of time because of: .1 Changes ordered in the work which justify additional time. .2 Failure of materials or products being at the Project site due to delays in transportation or failures of Suppliers, which are not the result of the CONTRACTOR's, Subcontractor's or Supplier's negligence. The request for an extension of time shall be supported by a recitation of acts demonstrating that such delays were beyond the control of the CONTRACTORI, including but not limited to, the CONTRACTOR's efforts to overcome such delays documented as follows: a) Copy of purchase order for delayed item(s) indicating date ordered by the CONTRACTOR/Subcontractor and date purchase order received by Supplier. b) If item(s) require Shop Drawings or other submittal information in accordance with the Contract Documents, provide record of date submittal(s) forwarded to Owner's Representative, date submittal(s) returned to the CONTRACTOR, and date submittal(s) forwarded to Supplier. c) Copy of document(s) from Supplier, on Supplier's letterhead, indicating date(s) item(s) would be ready for shipment and/or actual shipment date(s). d) Copies of all correspondence between the CONTRACTOR/ Subcontractor and Supplier indicating the CONTRACTOR/ Subcontractor's efforts to expedite item(s). 00700 05/27/03 Page 22 General Conditions e)• If item(s) are being purchased by a Subcontractor, provision of meeting notes, correspondence, and the like which reflect the CONTRACTOR's efforts with the Subcontractor to expedite delivery of the item(s). .3 When acts of the OWNER, E/A, utility owners or other contractors employed by the OWNER delay progress of work through no fault of the CONTRACTOR. .4 When the CONTRACTOR is delayed by strikes, lockouts, fires, losses from natural causes, or other unavoidable cause or causes beyond the CONTRACTOR's control. 12.2 Calendar Day Contracts: Under a Calendar Day Contract, the CONTRACTOR may also be granted an extension of time because of unusual inclement weather that is beyond the normal weather expected for the Round Rods, Texas area. Normal weather which prevents the CONTRACTOR from performing Work is expected during a Calendar Day Contract, and is not a justification for an extension of time. The following delineates the number of days per month for which, for purposes of Calendar Day Contracts, expected normal weather will prevent performance of Work: January 7 days February 7 days March 7 days April 7 days May 8 days June 6 days July 6 days August 5 days September 7 days October 7 days November 7 days December 7 days Days per month in which amounts exceeding the number shown above may be credited as a Rain Day if a Claim is made in accordance with paragraph 12.1.1 and meets the following definition: a "Rain Day" is any day in which a weather event occurs at the site and is sufficient to prevent the CONTRACTOR from performing units of Work critical to maintaining the project schedule. ARTICLE 13 - TESTS AND INSPECTIONS; AND CORRECTION OR REMOVAL OF DEFECTIVE WORK 13.1 Notice of Defects: Prompt notice of all defective Work of which the OWNER or E/A has actual knowledge will be given to the CONTRACTOR. All defective Work may be rejected or corrected as provided for in Article 13. 13.2 Access to Work: The OWNER, E/A, E/A's Consultants, other representatives and personnel of the OWNER, independent testing laboratories and governmental agencies having jurisdiction will have unrestricted physical access to the Work site for observing, inspecting and testing. The CONTRACTOR shall provide them proper and safe conditions for such access, and advise them of the CONTRACTOR's site safety procedures and programs so that they may comply therewith as applicable. 13.3 Tests and Inspections: 13.3.1 The CONTRACTOR shall give timely notice of readiness of the Work for all required inspections, tests or approvals, and shall cooperate with inspection and testing personnel to facilitate required inspections or tests. 13.3.2 The OWNER shall employ and pay for services of an independent testing laboratory to perform all inspections, tests or approvals required by the Contract Documents except: .1 for inspections, tests or approvals .2 for reinspecting or retesting defective .3 as otherwise specifically provided in the Contract Documents. covered by paragraph 13.3.3 below; Work; and All testing laboratories shall be those selected by the OWNER. 13.3.3 If laws or regulations of any public body having jurisdiction require any Work (or part thereof) specifically to be inspected, tested or approved by an employee or other representative of such public body, the CONTRACTOR shall assume full responsibility for arranging and obtaining such inspections, tests or approvals, pay all costs in connection therewith and furnish Owner's Representative the required certificates of inspection or approval. The CONTRACTOR shall also be responsible for arranging and obtaining and shall pay all costs in connection with any inspections, tests or approvals required for the OWNER's and E/A's 00700 05/27/03 Page 23 General Conditions review of materials or equipment to be incorporated in the Work, or of materials, mix designs or equipment submitted for review prior to the CONTRACTOR's purchase thereof for incorporation in the Work. 13.4 Uncovering Work: 13.4.1 If any Work (or the work of others) that is to be inspected, tested or approved is covered by the CONTRACTOR without concurrence of Owner's Representative, or if any Work is covered contrary to the written request of Owner's Representative, it must, if requested by Owner's Representative, be uncovered and recovered at the CONTRACTOR's expense. 13.4.2 tf Owner's Representative considers it necessary or advisable that covered Work be observed, inspected or tested, the CONTRACTOR shall uncover, expose or otherwise make available for observation, inspection or testing that portion of the Work in question, furnishing all necessary labor, material and equipment. If it is found that such Work is defective, the CONTRACTOR shall pay all claims, costs, losses and damages caused by, arising out of or resulting from such uncovering, exposure, observation, inspection and testing and of satisfactory replacement or reconstruction (including but not limited to all costs of repair or replacement of work of others); and the OWNER shall be entitled to an appropriate decrease in the Contract Amount, and may make a Claim therefor as provided in Article 11. If, however, such Work is not found to be defective, the CONTRACTOR shall be allowed an increase in the Contract Amount or an extension of the Contract Times (or Milestones), or both, directly attributable to such uncovering, exposure, observation, inspection, testing, replacement and reconstruction; and the CONTRACTOR may make a Claim therefor as provided in Article 11 and Article 12. 13.5 OWNER May Stop the Work: 13.5.1 If the Work is defective, or the CONTRACTOR fads to supply sufficient skilled workers or suitable materials or equipment, or fails to furnish or perform the Work in such a way that the completed Work will conform to the Contract Documents, the OWNER may order the CONTRACTOR to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of the OWNER to stop the Work shall not give rise to any duty on the part of the OWNER to exercise this right for the benefit of the CONTRACTOR or any surety or other party. 13.5.2 If the CONTRACTOR persistently fails to correct defective Work or submit a satisfactory plan to take corrective action, with procedure and time schedule, the OWNER may order the CONTRACTOR to stop the Work, or any portion thereof, until cause for such order has been eliminated, or take any other action permitted by this Contract. A notice to stop the Work, based on defects, shall not stop calendar or working days charged to the Project. 13.6 Correction or Removal of Defective Work: If required by the OWNER, the CONTRACTOR shall promptly, as directed, either correct all defective Work, whether or not fabricated, installed or completed, or, if the Work has been rejected by Owner's Representative, remove it from the site and replace it with Work that is not defective. The CONTRACTOR shall correct or remove and replace defective Work, or submit a plan of action detailing how the deficiency will be corrected, within the time frame identified in the notice of defective Work. The CONTRACTOR shall pay all claims, costs, losses and damages caused by or resulting from such correction or removal (including but not limited to all costs of repair or replacement of work of others). 13.7 Warranty period: 13.7.1 If, at any time after the date of Substantial Completion or such longer period of time as may be prescribed by laws or regulations or by the terms of any applicable special guarantee required by the Contract Documents or by any specific provision of the Contract Documents, any Work is found to be defective, the CONTRACTOR shall promptly, without cost to the OWNER and in accordance with the OWNER's written instructions: (i) correct such defective Work, or, if it has been rejected by the OWNER, remove it from the site and replace it with Work that is not defective, and (ii) satisfactorily correct or remove and replace any damage to other Work or the work of others resulting therefrom. If the CONTRACTOR does not promptly comply with the terms of such instructions, or in an emergency where delay would cause serious risk of loss or damage, the OWNER may have the defective Work corrected or the rejected Work removed and replaced, and all claims, costs, losses and damages caused by or resulting from such removal and replacement (including but not limited to all costs of repair or replacement of work of others) will be paid by the CONTRACTOR. 00700 05/27/03 Page 24 General Conditions 13.7.2 In special circumstances where a particular item of equipment is placed in continuous service before Substantial Completion of all the Work, the warranty period for that item may start to run from an earlier date if so provided in the Contract Documents. 13.8 OWNER May Correct Defective Work: If the CONTRACTOR fails within a reasonable time after Written Notice of the OWNER to correct defective Work, or to remove and replace rejected Work, or if the CONTRACTOR Pais to perform the Work in accordance with the Contract Documents, or if the CONTRACTOR fails to comply with any other provision of the Contract Documents, the OWNER may, after seven (7) calendar days' Written Notice to the CONTRACTOR, correct and remedy any such deficiency. If, in the opinion of Owner's Representative, significant progress has not been made during this seven (7) calendar day period to correct the deficiency, the OWNER may exercise any actions necessary to remedy the deficiency. In exercising the rights and remedies under this paragraph, the OWNER shall proceed expeditiously. In connection with such corrective and remedial action, the OWNER may exclude the CONTRACTOR from all or part of the site, take possession of all or part of the Work, and suspend the CONTRACTOR's services related thereto, and incorporate in the Work all materials and equipment stored at the site or for which the OWNER has paid the CONTRACTOR but which are stored elsewhere. The CONTRACTOR shall allow the OWNER, its agents and employees, the OWNER's other contractors, E/A and E/A's consultants access to the site to enable the OWNER to exercise the rights and remedies under this paragraph. All claims, costs, losses and damages incurred or sustained by the OWNER in exercising such rights and remedies will be charged against the CONTRACTOR and a Change Order wit be issued incorporating the necessary revisions in the Contract Documents with respect to the Work. Such claims, costs, losses and damages will include but not be limited to all costs of repair or replacement of work of others destroyed or damaged by correction, removal or replacement of the CONTRACTOR's defective Work. The CONTRACTOR shall not be allowed an extension of the Contract Times (or Milestones), or claims of damage because of any delay in the performance of the Work attributable to the exercise by the OWNER of the OWNER's rights and remedies hereunder. ARTICLE 14 - PAYMENTS TO CONTRACTOR AND COMPLETION 14.1 Application for Progress Payment: 14.1.1 Not more than once per month, the CONTRACTOR shall submit to Owner's Representative for review an Application for Payment, in a form acceptable to the OWNER, filled out and signed by the CONTRACTOR covering the Work completed as of the date of the Application and accompanied by such supporting documentation as is required by the Contract Documents. 14.1.2 Such applications shall not include requests for payment on account of changes in the Work which have been properly authorized by Change Directives but not yet included in Change Orders. 14.1.3 Such applications shall not include requests for payment of amounts the CONTRACTOR does not intend to pay to a Subcontractor or Supplier because of a dispute or other reason. 14.1.4 If payment is requested on the basis of materials or equipment not incorporated in the Work but delivered and suitably stored at the site or at another location agreed to in writing, the Application for Payment shall be accompanied by such bills of sale, data and other procedures satisfactory to the OWNER substantiating the OWNER's title to such materials or equipment or otherwise protecting the OWNER's interest. Payment on account of such materials or equipment will not include any amount for the CONTRACTOR's overhead or profit or relieve the CONTRACTOR of its obligation to protect and install such materials or equipment in accordance with the requirements of the Contract and to restore damaged or defective Work. If materials or equipment are stored at another location they shall be stored in a bonded and insured facility, accessible to E/A and the OWNER, and shall be clearly marked as property of the OWNER. 14.1.5 Where the original Contract Amount is less than $400,000, the OWNER will pay to the CONTRACTOR the total amount of approved Application for Payment, less ten percent (10 %) of the amount thereof, which ten percent (10 %) will be retained until final payment, less all previous payments and Tess all sums that may be retained by the OWNER under the terms of this Agreement. Where the original Contract Amount is $400,000 or more, the OWNER will pay to the CONTRACTOR the total amount of approved Application for Payment, Tess five percent (5 %) of the amount thereof, which five (5 %) will be retained until final payment, less all previous payments and less all sums that may be retained by the OWNER under the terms of this Agreement. In either case, if the Work is near completion and delay occurs due to no fault or neglect of the CONTRACTOR, the OWNER may pay a portion of the retained amount to the 00700 05127/03 Page 25 General Conditions CONTRACTOR. The CONTRACTOR, at the OWNER's option, may be relieved of the obligation to complete the Work and, thereupon, the CONTRACTOR shall receive payment of the balance due under the Contract subject to the conditions stated under paragraph 15.2. 14.1.6 Applications for Payment shall include the following documentation: .1 updated progress schedule; .2 monthly subcontractor report; and .3 any other documentation required under the Supplemental General Conditions. 14.2 CONTRACTOR's Warranty of Title: The CONTRACTOR warrants and guarantees that title to all Work, materials and equipment covered by any Application for Payment, whether incorporated in the Project or not, will pass to the OWNER not later than the time of payment to the CONTRACTOR free and dear of all liens. 14.3 Review of Applications for Progress Payment: 14.3.1 Owner's Representative will, within seven (7) calendar days after receipt of each Application for Payment, either indicate a recommendation for payment and forward the Application for processing by the OWNER, or return the Application to the CONTRACTOR indicating Owner's Representative's reasons for refusing to recommend payment. In the latter case, the CONTRACTOR may make the necessary corrections and resubmit the Application. 14.3.2 Owner's Representative's recommendation of any payment requested in an Application for Payment will constitute a representation by Owner's Representative, based upon Owner's Representative's on -site observations of the executed Work and on Owner's Representative's review of the Application for Payment and the accompanying data and schedules, that to the best of Owner's Representative's knowledge, information and belief: .1 the Work has progressed to the point indicated; and .2 the quality of the Work is in accordance with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon Substantial Completion, to the results of any subsequent tests called for in the Contract Documents, to a final determination of quantities and classifications for unit price Work, and to any other qualifications stated in the recommendation). 14.3.3 By recommending any such payment, Owner's Representative will not thereby be deemed to have represented that: .1 exhaustive or continuous on -site inspections have been made to check the quality or the quantity of the Work; .2 examination has been made to ascertain how or for what purpose the CONTRACTOR has used money previously paid on account of the Contract Amount; .3 the CONTRACTOR's construction means, methods, techniques, sequences or procedures have been reviewed; or .4 that there may not be other matters or issues between the, parties that might entitle the CONTRACTOR to be paid additionally by the OWNER or entitle the OWNER to withhold payment to the CONTRACTOR. 14.4 Decisions to Withhold Payment: 14.4.1 The OWNER may withhold or nullify the whole or part of any payment to such extent as may be necessary on account of: .1 defective Work not remedied; .2 reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Amount; .3 damage to the OWNER or another contractor; .4 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, .5 failure of the CONTRACTOR to submit a schedule of values in accordance with the Contract Documents; 00700 05/27103 Page 26 General Conditions .6 failure of the CONTRACTOR to submit a submittal schedule in accordance with the Contract Documents; .7 failure of the CONTRACTOR to submit or update construction schedules in aaccordance with the Contract Documents; .8 failure of the CONTRACTOR to maintain a record of changes on drawings and documents; .9 failure of the CONTRACTOR to maintain weekly payroll reports; .10 failure of the CONTRACTOR to submit monthly subcontractor reports; .11 the CONTRACTOR's neglect or unsatisfactory prosecution of the Work, including failure to clean up; or .12 failure of the CONTRACTOR to comply with any provision of the Contract Documents. 14.4.2 When the above reasons for withholding payment are removed, the CONTRACTOR shall resubmit a statement for the value of Work performed. Payment will be made within thirty (30) calendar days of receipt of approved Application for Payment. 14.5 Delayed Payments: Should the OWNER fail to make payment to the CONTRACTOR of a sum named in any Application for Payment within thirty (30) calendar days after the day on which the OWNER received the mutually acceptable Application for Payment, then the OWNER will pay to the CONTRACTOR, in addition to the sum shown as due by such Application for Payment, interest thereon at the rate of one percent (1%) per month from date due until fully paid, which shall fully liquidate any injury to the CONTRACTOR growing out of such delay in payment. 14.6 Arrears: No money shall be paid by the OWNER upon any claim, debt, demand or account whatsoever, to any person, firm or corporation who is in arrears to the City of Round Rock for taxes; and the City of Round Rock shall be entitled to counterclaim and offset against any such debt, claim, demand or account in the amount of taxes so in arrears and no assignment 00700 05/27/03 Page 27 or transfer of such debt, claim, demand or account after said taxes are due, shall affect the right of the OWNER to so offset said taxes, and associated penalties and interest if applicable, against the same. 14.7 Substantial Completion: 14.7.1 If a Certificate of Occupancy is required by public authorities having jurisdiction over the Work, said certificate shall be issued before the Work or any portion thereof is considered substantially complete. When the CONTRACTOR considers that the Work, or a portion thereof which the OWNER agrees to accept separately, is substantially complete, the CONTRACTOR shall notify Owner's Representative and request a determination as to whether the Work or designated portion thereof is substantially complete. If Owner's Representative does not consider the Work substantially complete, Owner's Representative will notify the CONTRACTOR giving reasons therefor. Failure on the OWNER's part to list a reason does not alter the responsibility of the CONTRACTOR to complete all Work in accordance with the Contract Documents. After satisfactorily completing items identified by Owner's Representative, the CONTRACTOR shall then submit another request for Owner's Representative to determine substantial completion. If Owner's Representative considers the Work substantially complete, Owner's Representative will prepare and deliver a certificate of Substantial Completion which shall establish the date of Substantial Completion, shall include a punch list of items to be completed or corrected before final payment, shall establish the time within which the CONTRACTOR shall finish the punch list, and shall establish responsibilities of the OWNER and the CONTRACTOR for security, maintenance, heat, utilities, damage to the Work, warranty and insurance. Failure to include an item on the punch list does not alter the responsibility of the CONTRACTOR to complete all Work in accordance with the Contract Documents. The certificate of Substantial Completion shall be signed by the OWNER and the CONTRACTOR to evidence acceptance of the responsibilities assigned to them in such certificate. 14.7.2 The OWNER shall have the right to exclude the CONTRACTOR from the Work after the date of Substantial Completion, but the OWNER will allow the CONTRACTOR reasonable access to complete or correct items on the punch list. 14.8 Partial Utilization: Use by the OWNER, at the OWNER's option, of any substantially completed part of the Work which: (i) has specifically been identified in the Contract General Conditions Documents, or (ii) the OWNER and the CONTRACTOR agree constitutes a separately functioning and usable part of the Work that can be used by the OWNER for its intended purpose without significant interference with the CONTRACTOR's performance of the remainder of the Work, may be accomplished prior to Substantial Completion of all the Work in accordance with the following: .1 The OWNER at any time may request the CONTRACTOR to permit the OWNER to use any such part of the Work which the OWNER believes to be ready for its intended use and substantially complete. If such part of the Work is substantially complete, the CONTRACTOR shall certify to Owner's Representative that such part of the Work is substantially complete and request Owner's Representative to issue a certificate of Substantial Completion for that part of the Work. The CONTRACTOR at any time may notify Owner's Representative that the CONTRACTOR considers any such part of the Work ready for its intended use and substantially complete and request Owner's Representative to issue a certificate of Substantial Completion for that part of the Work. The provisions of paragraph 14.7.1 and paragraph 14.7.2 will apply with respect to certification of Substantial Completion of that part of the Work and the division of responsibility in respect thereof and access thereto. .2 Such partial utilization is authorized by public authorities having jurisdiction over the Work. 14.9 Final lnspection: Upon Written Notice from the CONTRACTOR that the entire Work or an agreed portion thereof is complete, Owner's Representative will make a final inspection with the CONTRACTOR and provide Written Notice of all particulars in which this inspection reveals that the Work is incomplete or defective. The CONTRACTOR shall immediately take such measures as are necessary to complete such Work or remedy such deficiencies. 14.10 Final Application for Payment: The CONTRACTOR may make application for final payment following the procedure for progress payments after the CONTRACTOR has completed all such corrections to the satisfaction of Owner's Representative and delivered the following documents: .1 Three (3) complete operating and maintenance manuals, each containing maintenance and operating instructions, schedules, guarantees, and other documentation required by the Contract Documents; .2 Record documents (as provided in paragraph 6.10); .3 Consent of surety, if any, to final payment. If surety is not provided, complete and legally effective releases or waivers (satisfactory to the OWNER) of all claims arising out of or filed in connection with the Work; .4 Certificate evidencing that insurance required by the Supplemental General Conditions will remain in force after final payment and through any warranty period; .5 Non -Use of Asbestos Affidavit (After Construction); and .6 Any other documentation called for in the Contract Documents. 14.11 Final Payment and Acceptance: 14.11.1 If, on the basis of observation of the Work during construction, final inspection, and review of the final Application for Payment and accompanying documentation as required by the Contract Documents, Owner's Representative is satisfied that the Work has been completed and the CONTRACTOR's other obligations under the Contract Documents have been fulfilled, Owner's Representative will recommend the final Application for Payment and thereby notify the OWNER, who will pay to the CONTRACTOR the balance due the CONTRACTOR under the terms of the Contract. 14.11.2 As Contract Time is measured to Final Completion, Owner's Representative will issue a letter of final acceptance to the CONTRACTOR which establishes the Final Completion date and initiates any warranty period. 14.11.3 Final payment is considered to have taken place when the CONTRACTOR or any of its representatives negotiates the OWNER's final payment check, whether labeled final or not, for cash 00700 05/27/03 Page 28 General Conditions or deposits check in any financial institution for its monetary return. 14.12 Waiver of Claims: The making and acceptance of final payment will constitute: .1 a waiver of claims by the OWNER against the CONTRACTOR, except claims arising from unsettled claims, from defective Work appearing after final inspection, from failure to comply with the Contract Documents or the terms of any warranty specified therein, or from the CONTRACTOR's continuing obligations under the Contract Documents; and .2 a waiver of all claims by the CONTRACTOR against the OWNER other than those previously made in writing and still unsettled. ARTICLE 15 - SUSPENSION OF WORK AND TERMINATION 15.1 OWNER May Suspend Work Without Cause and for Convenience: At any time and without cause and for convenience, the OWNER may suspend the Work or any portion thereof for a period of not more than ninety (90) calendar days by written agreement or by Written Notice to the CONTRACTOR which will fix the date on which the Work will be resumed. The CONTRACTOR shall resume the Work on the date so fixed. Thd CONTRACTOR may be allowed an adjustment in the Contract Amount or an extension of the Contract Times, or both, directly attributable to any such suspension if the CONTRACTOR makes an approved Claim therefor as provided in Article 11 and Article 12. 15.2 OWNER May Terminate Without Cause: Upon seven (7) calendar days' Written Notice to the CONTRACTOR, the OWNER may, without cause and without prejudice to any right or remedy of the OWNER, elect to terminate the Agreement. In such case, the CONTRACTOR shall be paid (without duplication of any items): .1 for completed and acceptable Work executed in accordance with the Contract Documents prior to the effective date of termination; .2 for all claims incurred in settlement of terminated contracts with Suppliers, Subcontractors, and others. The CONTRACTOR agrees to negotiate in good faith with Subcontractors, Suppliers and others to mitigate the OWNER's cost; and .3 for anticipated profits on entire Contract not previously paid. 15.3 OWNER May Terminate With Cause: 15.3.1 Upon the occurrence of any one or more of the following events: .1 if the CONTRACTOR persistently fails to per the Work in accordance with the Contract Documents; .2 if the CONTRACTOR disregards laws or regulations of any public body having jurisdiction; .3 if the CONTRACTOR disregards the authority of Owner's Representative; .4 if the CONTRACTOR makes fraudulent statements; .5 if the CONTRACTOR fails to maintain a work force adequate to accomplish the Work within the Contract Time; .6 if the CONTRACTOR fails to make adequate progress and endangers successful completion of the Contract; or .7 if the CONTRACTOR otherwise violates in any substantial way any provisions of the Contract Documents; The OWNER may, after giving the CONTRACTOR (and the surety, if any) seven (7) calendar days' Written Notice terminate the services of the CONTRACTOR. The OWNER, at its option, may proceed with negotiation with surety for completion of the Work. Alternatively, the OWNER may under these circumstances exclude the CONTRACTOR from the site and take possession of the Work (without liability to the CONTRACTOR for trespass or conversion), incorporate in the Work all materials and equipment stored at the site or for which the OWNER has paid the CONTRACTOR but which are 00700 05/27/03 Page 29 General Conditions stored elsewhere, and finish the Work as the OWNER may deem expedient. In such case the CONTRACTOR shall not be entitled to receive any further payment until the Work is finished. If the unpaid balance of the Contract Amount exceeds all claims, costs, losses and damages sustained by the OWNER arising out of or resulting from completing the Work, such excess will be paid to the CONTRACTOR. If such claims, costs, losses and damage exceed such unpaid balance, the CONTRACTOR or surety shall pay the difference to the OWNER. 15.3.2 Where the CONTRACTOR's services have been so terminated by the OWNER, the termination will not affect any rights or remedies of the OWNER against the CONTRACTOR and surety then existing or which may thereafter accrue. Any retention or payment of amounts due the CONTRACTOR by the OWNER will not release the CONTRACTOR from liability. In the event the OWNER terminates the Contract with cause, the OWNER may reject any and all bids submitted by the CONTRACTOR for up to three (3) years. 15.4 CONTRACTOR May Stop Work or Terminate: If through no act or fault of the CONTRACTOR, the Work is suspended for a period of more than ninety (90) calendar days by the OWNER or under an order of court or other public authority, or (except during disputes) Owner's Representative fails to forward for processing any mutually acceptable Application for Payment within thirty (30) calendar days after it is submitted, or (except during disputes) the OWNER fails for sixty (60) calendar days after it is submitted to pay the CONTRACTOR any sum finally determined by the OWNER to be due, then the CONTRACTOR may, upon seven (7) calendar days' Written Notice to the OWNER, and provided the OWNER does not remedy such suspension or failure within that time, terminate the Agreement and recover from the OWNER payment on the same terms as provided in paragraph 15.2. In lieu of terminating the Agreement and without prejudice to any other right or remedy, if (except during disputes) Owner's Representative has failed to forward for processing any mutually acceptable Application for Payment within thirty (30) calendar days after it is submitted, or (except during disputes) the OWNER has failed for sixty (60) calendar days after it is submitted to pay the CONTRACTOR any sum finally determined by the OWNER to be due, the CONTRACTOR may upon seven (7) calendar days' Written Notice to the OWNER stop the Work until payment of all such amounts due the CONTRACTOR, including interest thereon. The provisions of this paragraph 15.4 are not intended to preclude the CONTRACTOR from making a Claim under Article 11 and Article 12 for an increase in Contract Amount or Contract Times or otherwise for expenses or damage directly attributable to the CONTRACTOR's stopping Work as permitted by this paragraph. ARTICLE 16 - DISPUTE RESOLUTION 16.1 Filing of Claims: 16.1.1 Claims arising from the circumstances identified in paragraphs 3.2, 4.1, 4.2.2, 4.2.4, 6.4.2, 6.11.5.2, 6.17, 7.5, 8.6, 9.5, 10.4.2, 13.8, 15.1, 15.2, 15.3, or 15.4, or other occurrences or events, shall be made by Written Notice delivered by the party making the Claim to the other party within thirty (30) calendar days after the start of the occurrence or event giving rise to the Claim and stating the general nature of the Claim. Notice of the amount of the Claim with supporting data shall be delivered within thirty (30) calendar days after Written Notice of Claim is delivered by claimant and shall represent that the adjustment claimed covers all known amounts to which claimant is entitled. 16.1.2 Within thirty (30) calendar days of receipt of notice of the amount of the Claim with supporting data, Owner's Representative and the CONTRACTOR shall meet to discuss the Claim, after which an offer of settlement or notification of no settlement offer will be made to claimant. tf claimant is not satisfied with the proposal presented, claimant shall have thirty (30) calendar days in which to: .1 submit additional supporting data requested by the other party, .2 modify the initial Claim; or .3 request Alternative Dispute Resolution. 16.2 Attemative Dispute Resolution: 16.2.1 If a dispute exists concerning a Claim, the parties agree to use the following procedure prior to pursuing any other available remedies. The OWNER reserves the right to include E/A as a party. 16.2.2 Negotiating with Previously Uninvolved Personnel: Either party may make a written request for a meeting to be held between representatives of each party within fourteen (14) calendar days of the request or such later period that the parties may agree to. Each party shall endeavor to include, at a minimum, one (1) previously uninvolved senior level decision maker empowered to negotiate on behalf of 00700 05/27/03 Page 30 General Conditions their organization. The purpose of this and subsequent meetings will be good faith negotiations of the matters constituting the dispute. Negotiations shall be concluded within thirty (30) calendar days of the first meeting, unless mutually agreed otherwise. This step may be waived by written agreement of both parties, in which event the parties may proceed directly to mediation as described below. 16.2.3 Mediation: 16.2.3.1 If the procedure described in paragraph 16.2.2 proves unsuccessful or is waived pursuant to its terms, the parties shall initiate the mediation process. The parties agree to select within thirty (30) calendar days one (1) mediator trained in mediation skills, to assist with resolution of the dispute. The OWNER and the CONTRACTOR agree to act in good faith in the selection of the mediator and to give consideration to qualified individuals nominated to act as mediator. Nothing in this agreement prevents the parties from relying on the skills of a person who also is trained in the subject matter of the dispute and /or a contract interpretation expert. 16.2.3.2 Mediation is a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them. The parties hereby agree that mediation, at a minimum, shall provide for 1) conducting an on -site investigation, if appropriate, by the mediator for fact - gathering purposes, 2) a meeting of all parties for the exchange of points of view and 3) separate meetings between the mediator and each party to the dispute for the formulation of resolution alternatives. The parties agree to participate in mediation in good faith for up to thirty (30) calendar days from the date of the first mediation session, unless mutually agreed otherwise. Should the parties fail to reach a resolution of the dispute through mediation, then each party is released to pursue other remedies available to them. ARTICLE 17 - MISCELLANEOUS 17.1 Venue: In the event of any suit at law or in equity involving the Contract, venue shall be in Williamson County, Texas and the laws of the state of Texas shall apply to Contract interpretation and enforcement. 17.2 Extent of Agreement: This Contract represents the entire and integrated agreement between the OWNER and the CONTRACTOR and supersedes all prior negotiations, representations or agreements, either written or oral. 17.3 Cumulative Remedies: The rights and remedies available to the parties are not to be construed in any way as a limitation of any rights and remedies available to any or all of them which are otherwise imposed or available by laws or regulations, by special warranty or guarantees or by other provisions of the Contract Documents, and the provisions of this paragraph will be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right and remedy to which they apply. 17.4 Severability: If any word, phrase, clause, sentence or provision of the Contract, or the application of same to any person or set of circumstances is for any reason held to be unconstitutional, invalid or unenforceable, that finding shall only effect such word, phrase, clause, sentence or provision, and such finding shall not effect the remaining portions of this Contract; this being the intent of the parties in entering into the Contract; and all provisions of the Contract are declared to be severable for this purpose. 17.5 Independent Contractor The Contract shall not be construed as creating an employer /employee relationship, a partnership, or a joint venture. The CONTRACTOR's services shall be those of an independent contractor. The CONTRACTOR agrees and understands that the Contract does not grant any rights or privileges established for employees of the OWNER. 17.6 Prohibition of Gratuities The OWNER may, by Written Notice to the CONTRACTOR , terminate the Contract without liability if is determined by the OWNER that gratuities were offered or given by the CONTRACTOR or any agent or representative of the CONTRACTOR to any officer or employee of the OWNER with a view toward securing the Contract or securing favorable treatment with respect to the awarding or amending or the making of any determinations with respect to the performing of such Contract. In the event the Contract is terminated by the OWNER pursuant to this provision, the OWNER shall be entitled, in addition to any other rights and remedies, to recover or withhold the amount of the cost incurred by the CONTRACTOR in providing such gratuities. 00700 05/27/03 Page 31 General Conditions 17.7 Prohibition Against Personal Interest in Contracts No officer, employee, independent consultant, or elected official of the OWNER who is involved in the development, evaluation, or decision- making process of the performance of any solicitation shall have a financial interest, direct or indirect, in the Contract resulting from that solicitation. Any violation of this provision, with the knowledge, expressed or implied, of the CONTRACTOR shall render the Contract voidable by the OWNER. End of General Conditions 00700 05127!03 Page 32 General Conditions THE STATE OF TEXAS COUNTY OF WILLIAMSON PERFORMANCE BOND #929290094 KNOW ALL MEN BY THESE PRESENTS: That Brath Inc of the City of Round Rock County of Williamson , and State of Texas , as Principal, and Continental Casual tauthorizedunderthe law of the State of Texas to act as surety on bonds for principals, are held and firmly bound unto THE CITY OF ROUND ROCK, TEXAS, (Owner), in the penal sum of Two Hundred Sixty Two Thousand Four Hundred Eighty -Four dollars ($ 262, 484.00 ) for the payment whereof, well and truly to be made the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors and assigns, jointly and severally, by these presents: WHEREAS, the Principal has entered into a certain written contract with the Owner dated the 19th day of June , 20 03 to which the contract is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein consisting of: Construction of new restroom /concession /storage facilities located at Old Settlers Park at Palm Valley City of Round Rock Soccer Field Facilities NOW, THEREFORE, THE CONDITIONS OF THIS OBLIGATION IS SUCH, that if the said Principal shall faithfully perform said Contract and shall, in all respects, duly and faithfully observe and perform all and singular the covenants, conditions and agreements in and by said Contract, agreed and covenanted by the Principal to be observed and performed, including but not limited to, the repair of any and all defects in said work occasioned by and resulting from defects in materials furnished by or workmanship of, the Principal in performing the work covered by said Contract and occurring within a period of twelve (12) months from the date of the contract Completion Certificate and all other covenants and conditions, according to the true intent and meaning of said Contract and the Plans and Specifications hereto annexed, then this obligation shall be void; otherwise to icuiain in full force and effect; PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Chapter 2253, Texas Government code, as amended, and all liabilities on this bond shall be determined in accordance with the provisions of said Chapter 2253 to the same extent as if it were copied at length herein. poslbid.m,t/, c mumr PBD -4 PERFORMANCE BOND (continued) Surely, for value received, stipulates and agrees that no change, extension of time, alteration or addition to the term of the contract, or to the work performed thereunder, or the plans, specifications, or drawings accompanying the same, shall in anywise affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the contract, or to the work to be performed thereunder. IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this instrument this 20th day of June 20 03. Brath Inc Principal S.s�bta�c V; l= ax:.�...✓1— Title 600 IB 35 South Address Round Rock TX 78681 Resident Agent of Surety: C A Schutze Agency Printed Name P 0 Box 3547 Address Austin TX 78764 City, State & Zip Code ponbia.msi/spee meter PBD -5 Continental Casualt Company Surety By: Mar Pierce A torney -in -Fact Title 4400 Piedras Drive South Suite #240 Address San Antonio TX 78228 THE STATE OF TEXAS COUNTY OF FYILLL4MSON PAYMENT BOND #929290094 KNOW ALL MEN BY THESE PRESENTS.' That Brath Inc , of the City o f Round Rock , County o f Williamson , and State of Texas as Principal, and C o ualtyl authorized under the laws of the State of Texas to act as Surety on Bonds for Principals, are held and firmly bound unto THE CITY OF ROUND ROCK, (OWNER), and all subcontractors, workers, laborers, mechanics and suppliers as their interest may appear, all of whom shall have the right to sue upon this bond, in the penal sum of Two Hundred Sixty Two Thousand Four Hundred Eighty -Four Dollars ($ 262,484.00 ) for the payment whereof, well and truly be made the said Principal and Surety bind themselves and their heirs, administrators, executors, successors, and assigns, jointly and severally, by these presents: WHEREAS, the Principal has entered into a certain written contract with the Owner, dated the 19th day of June . 20 03 , to which Contract is hereby referred to and made a part hereof as fully and to the same extent as if copied at length herein consisting of: Construction of new restroom /concession /storage facilities located at Old Settlers Park at Palm Valley City of Round Rock Soccer Field Facilities NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said Principal shall well and truly pay all subcontractors, workers, laborers, mechanics, and suppliers, all monies to them owing by said Principals for subcontracts, work, labor, equipment, supplies and materials done and furnished for the construction of the improvements of said Contract, then this obligation shall be and become null and void; otherwise to remain in fulI force and effect. PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Chapter 2253, Texas Government code, as amended, and all liabilities on this bond shall be determined in accordance with the provisions of said Chapter 2253 to the same extent as if it were copied at length herein. posibid.m.Wspec nosier PBD-6 PAYMENT BOND (continued) Surety, for value received, stipulates and agrees that no change, extension of time, alteration or addition to the terms of the contract, or to the work performed thereunder, or the plans, specifications or drawings accompanying the same shall in anywise affect it's obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the contract, or to the work to be performed thereunder. IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this Instrument this 20th day of June , 20 03 Brath Inc Principal By: By: vi'C ce R k?a - Title 600 Ili 35 South Address Round Rock TX 78681 Resident Agent of Surety: C A Schutze Agency Printed Name P 0 Box 3547 Address Austin TX 78764 City, State & Zip Code Signature poslbid.ma/spec meter PBD -7 Continental Casualty Company Surety Mary Pierce Att.l ney -in -Fact Title Address 4400 Piedras Drive South Suite #240 San Antonio TX 78228 WARRANTY BOND BOND MUMMER 929290094 AMOUNT $262,484.00 KNOW ALL MEN BY THESE PRESENTS, That we, Brath Inc., 600 IH 35 South, Round Rock TX 78681 (hereinafter called the "Principal ") as Principal, and the Continental Casualty a Corporation duly organized under the laws of the State of Illinois and duly licensed to transact business in the State of Texas (hereinafter called the "Surety"), as Surety, are held and firmly bound unto THE CITY OF ROUND ROCK, TEXAS ( hereinafter called the "Obligee "), in the sum of Two Hundred Sixty Two Thousand Four Hundred Eighty -Four dollars ($ 262,484.00 ) for the payment of which sum well and truly to be made, we, the said Principal and the said Surety, bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly, by these presents. Sealed with our seals and dated this 20th day of JUne , A.D. nineteenhundred and 2003 WHEREAS, the said Principal has heretofore entered into a contract with City of Round Rock Dated postbid.mmm/spes master 19 June , 20 03, for construction of: new restroom/ concession /storage facilities located at Old Settlers Park at Palm Valley, City of Round Rock Soccer Field Facilities WHEREAS, the said Principal is required to guarantee the construction of all improvements installed undcr said contract, against defects in materials or workmanship, which may develop during the period of One year(s) from the date of acceptance of the project above described, by Owner: The City of Round Rock, Texas NOW, THEREFORE, THE CONDITIONS OF THE OBLIGATIONS IS SUCH, that if said Principal shall faithfully carry out and perform the said guarantee, and shall, on due notice, repair and make good at its own expense any and all defects in materials or workmanship in the said work which may develop during the period of one year(s) from the date of acceptance of the project above described, by Owner: The City of Round Rock, Texas PBD -10 WARRANTY BOND (continued) OR shall pay over, make good and reimburse to the said Obligee all loss and damage which said Obligee may sustain by reason of failure or default of said Principal so to do, then this obligation shall be null and void; otherwise shall remain in full force and effect. Principal Surety B v: Brsth Inc Title 600 IN 35 South Address Round Rock TX 78681 San Antonio TX 78228 Resident Agent of Surety: C A Schutze Agency Printed Name P 0 Box 3547 Address Austin tX 78764 City, State & Zip Code Signature po thid.mWspee msame Title PBD -11 By: Continental Casualty Company Mary Pierce Attorney -in -Fact 4400 Piedras Drive South Suite #240 Address POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY -IN -FACT Know All Men By These Presents, That Continental Casualty Company, an Illinois corporation, National Fire Insurance Company of Hartford, a Connecticut corporation, and American Casualty Company of Reading, Pennsylvania, a Pennsylvania corporation (herein called `the CNA Companies "), are duly organized and existing corporations having their principal offices in the City of Chicago, and State of Illinois. and that they do by virtue of the signatures and seals herein affixed hereby make, constitute and appoint Steve Schulze, Janis Winkler, Mary Pierce, Individually of Austin, Texas their true and lawful Attomey(s) -in -Fact with full power and authority hereby conferred to sign, seal and execute for and on their behalf bonds, undertakings and other obligatory instruments of similar nature — In Unlimited Amounts — and to bind them thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of their corporations and all the acts of said Attorney, pursuant to the authority hereby given is hereby ratified and confirmed. This Power of Attorney is made and executed pursuant to and by authority of the By -Law and Resolutions, printed on the reverse hereof, duly adopted, as indicated, by the Boards of Directors of the corporations. In Witness Whereof, the CNA Companies have caused these presents to be signed by their Vice President and their corporate seals to be hereto affixed on this 8th day of March, 2002. State of Illinois, County of Cook, ss: On this 8th clay of March, 2002, before me personalty came Michael Gengler to me known, who, being by me duly swom, did depose and ' say: that he resides in the City of Chicago, State of Illinois; that he is a Group Vice President of Continental Casualty Company, an Illinois corporation, National Fire Insurance Company of Hartford, a Connecticut corporation. and American Casualty Company of Reading, Pennsylvania, a Pennsylvania corporation described in and which executed the above instrument; that he knows the seals of said corporations; that the seals affixed to the said instrument are such corporate seals; that they were so affixed pursuant to authority given by the Boards of Directors of said corporations and that he signed his name thereto pursuant to like authority, and acknowledges same to be the act and deed of said corporations. (Rev. 10111/01) "OFFICIAL SEAL' DIANE FAULKNER Notary Public, State of Illinois My Commission Expires 9/17/05 My Commission Expires September 17, 2005 Continental Casualty Company National Fire Insurance Company of Hartford American Casualty Company of Reading, Pennsylvania ( y - Michael Gengler Group Vice President Diane Faulkner CERTIFICATE I, Mary A. Ribikawskis, Assistant Secretary of Continental Casualty Company, an Illinois corporation. National Fire Insurance Company of Hartford, a Connecticut corporation, and American Casualty Company of Reading, Pennsylvania, a Pennsylvania corporation do hereby certify that the Power of Attomey herein above set forth Is still in force, and further certify that the By -Law and Resolution of the Board of Directors of the corporations printed on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed my name and affixed the seal of the said corporations this 20th day of June 2003 . Continental Casualty Company National Fire Insurance Company of Hartford American Casualty Company of Reading, Pennsylvania Mary A. Ribikawskis Notary Public Assistant Secretary Authorizing By -Laws and Resolutions ADOPTED BY THE BOARD OF DIRECTORS OF CONTINENTAL CASUALTY COMPANY: This Power of Attomey is made and executed pursuant to and by authority of the following By -Law duly adopted by the Board of Directors of the Company. "Article IX —Execution of Documents Section 3. Appointment of Attomey -in -fact. The Chairman of the Board of Directors, the President or any Executive. Senior or Group Vice President may, from time to time, appoint by written certificates attomeys -in -fact to act in behalf of the Company In the execution of policies of insurance, bonds, undertakings and other obligatory Instruments of like nature. Such attorneys -in -fact, subject to the limitations set forth in their respective certificates of authority, shall have full power to bind the Company by their signature and execution of any such instruments and to attach the seal of the Company thereto. The Chairman of the Board of Directors, the President or any Executive, Senior or Group Vice President or the Board of Directors, may, at any time, revoke all power and authority previously given to any attorney -in- fact." This Power of Attorney is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of the Company at a meeting duly called and held on the 17th day of February, 1993. "Resolved, that the signature of the President or any Executive, Senior or Group Vice President and the seal of the Company may be affixed by facsimile on any power of attorney granted pursuant to Section 3 of Article IX of the By -Laws, and the signature of the Secretary or an Assistant Secretary and the seal of the Company may be affixed by facsimile to any certificate of any such power and any power or certificate bearing such facsimile signature and seal shall be valid and binding on the Company. Any such power so executed and sealed and certified by certificate so executed and sealed shall, with respect to any bond or undertaking to which it is attached, continue to be valid and binding on the Company." ADOPTED BY THE BOARD OF DIRECTORS OF AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA: This Power of Attorney is made and executed pursuant to and by authority of the following By-Law duly adopted by the Board of Directors of the Company. "Article VI— Execution of Obligations and Appointment of Attomey -in -Fact Section 2. Appointment of Attomey-in-fact. The Chairman of the Board of Directors, the President or any Executive, Senior or Group Vice President may, from time to time, appoint by written certificates attomeys -in -fact to act In behalf of the Company in the execution of policies of insurance. bonds, undertakings and other obligatory Instruments of like nature. Such attomeys -in -fact, subject to the limitations set forth in their respective certificates of authority, shall have full power to bind the Company by their signature and execution of any such instruments and to attach the seal of the Company thereto. The President or any Executive. Senior or Group Vice President may at any time revoke all power and authority previously given to any attorney -in- fact." This Power of Attomey is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of the Company at a meeting duly called and held on the 17th day of February, 1993. ° Resolved. that the signature of the President or any Executive, Senior or Group Vice President and the seal of the Company may be affixed by facsimile on any power of attorney granted pursuant to Section 2 of Article VI of the By -Laws, and the signature of the Secretary or an Assistant Secretary and the seal of the Company may be affixed by facsimile to any certificate of any such power and any power or certificate bearing such facsimile signature and seal shall be valid and binding on the Company. Any such power so executed and sealed and certified by certificate so executed and sealed shall, with respect to any bond or undertaking to which It is attached, continue to be valid and binding on the Company." ADOPTED BY THE BOARD OF DIRECTORS OF NATIONAL FIRE INSURANCE COMPANY OF HARTFORD: This Power of Attomey is made and executed pursuant to and by authority of the following Resolution duly adopted on February 17, 1993 by the Board of Directors of the Company. "RESOLVED: That the President, an Executive Vice President, or any Senior or Group Vice President of the Corporation may, from time to time, appoint, by written certificates, Attomeys -in -Fact to act in behalf of the Corporation in the execution of policies of insurance, bonds, undertakings and other obligatory instruments of like nature. Such Attorney -in -Fact, subject to the limitations set forth in their respective certificates of authority, shall have full power to bind the Corporation by their signature and execution of any such instrument and to attach the seal of the Corporation thereto. The President, an Executive Vice President, any Senior or Group Vice President or the Board of Directors may at any time revoke all power and authority previously given to any Attorney -in- Fact." This Power of Attorney is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of the Company at a meeting duly called and held on the 17th day of February, 1993. 'RESOLVED: That the signature of the President, an Executive Vice President or any Senior or Group Vice President and the seal of the Corporation may be affixed by facsimile on any power of attorney granted pursuant to the Resolution adopted by this Board of Directors on February 17, 1993 and the signature of a Secretary or an Assistant Secretary and the seal of the Corporation may be affixed by facsimile to any certificate of any such power, and any power or certificate bearing such facsimile signature and seal shall be valid and binding on the Corporation. Any such power so executed and sealed and certified by certificate so executed and sealed, shall with respect to any bond or undertaking to which it is attached, continue to be valid and binding on the Corporation." Faun •6944 State of Texas Claim Notice Endorsement To be attached to and form a part of Bond No 929290094 In accordance with Section 2253.021(0 of the Texas Government Code and Section 53.202(6) of the Texas Property Code any notice of claim to the named surety under this bond(s) should be sent to: CNA Surety 333 South Wabash Chicago, IL 60604 Telephone: (312) 822 -5000 NOTICE In accordance with the Terrorism Risk Insurance Act of 2002, we are providing this disclosure notice for bonds and certain insurance policies on which one or more of the Writing Companies identified below is the surety or insurer. To principals on bonds and insureds on certain insurance policies written by any one or more of the following companies (collectively the "Writing Companies ") as surety or insurer: Western Surety Company, Universal Surety of America, Surety Bonding Company of America, Continental Casualty Company, National Fire Insurance Company of Hartford, American Casualty Company of Reading, PA, The Firemen's Insurance Company of Newark, NJ, and The Continental Insurance Company. DISCLOSURE OF PREMIUM The premium attributable to coverage for terrorist acts certified under the Act was Zero Dollars ($0.00). DISCLOSURE OF FEDERAL PARTICIPATION IN PAYMENT OF TERRORISM LOSSES The United States will pay ninety percent (90 %) of covered terrorism losses exceeding the applicable surety /insurer deductible. Farm F7310 06/18/2003 NON 15:27 FAX 512 388 2665 BRATH 06/13/2003 FRI 07:53 FAX 512 388 2865 BRATH CERTIFICATE OF LIABILITY INSURANCE PRODUCER INSURED THIS IS TO CERTIFY THAT the Insured named above is insured by the Companies listed above with respect to the business operations hereinafter described, for the types of insurance and in accordance with die provisions of the standard policies used by the companies. and further hereinafter described. Exceptions to the polities arc noted below. CO TYPE OF INSURANCE POLICY NUMBER LTR A B s' rtr4ii_ - C D A Consolidated Insurance Agency Todd Davis 3108 North Lamar Blvd. Austin, TX 78705 -2028 'Broth, Inc. 600 I8 -35 South Round Rock, TX 78681 DTC0816X7120TLCO2 DIENCAP491D232402 DTSRCUP1908A607TCT02 CSI r.'+ CO AND DTHU81814A29502 '.l• 7 , • a•r 4.8 r: • a•rrrta - • .•• .::e t . _ • CERTIFICATE HOLDER_ City of Round Rork 22115. Main Strait Roma) Rack, Taus 78664 Attu Wayne Martinez EFFECTIVE B BRAT ON LIMITS DATE 12/31/02 12/31/03 12/31/02 12/31/03 12/31/02 12/31/03 12/31/02 CONS Typed Name: Wet OPPoemerml ::COMA/ WORLDOX/O:/W DOX /AORMSICORR/CONSTRUOMM33647.DOC 12/31/03 EAcu ACCIDENT DISEASE - POLICY Letrr DLSFASa - VL2C= 1.507 SIGNATURE OF AUTHO AOOREGATH Todd Dav Vice President Dace: COMPANIES AFFORDING COVERAGE A. Travelers Lloyds Ins. Company B. Phoenix Insurance Company L. Travelers Indemnity Co. of CT D. Travelers Ind. Co. of America 12j002/002 0002/007 6/13/03 OSNERAL A AT , pRoDUCrsCOMP/OPAOo. 5 2,000,000 PFRSONAL &ADV. INAORY 3 1.000,000 BACU OCCUAR@IC73 s 1,000,000 RRE PAMAOE (Any one &ol S 50,000 M254 soommsR(A6e pa 4S 5,000 BEFGIAMIffr • a ROOMYROURYTapuo0 S ODDLY DUtncr Omr a oele.aq S 4ROPERTr DAMA66 S 11 1 , 1 PI S 5,000,000 s 1,000,000 S 1,000,000 s 1,000,000 The City of Round Rock Is named as additional iminal with respect to all policies except Workers ' Compensation Llabititp Should any albs above desarlhed polities be cancelled or changed before the expiration date thereof, the i suing company will mall durst' (30) days written notice to the certificate holder waled below. ATIVE •