R-03-08-14-14E4 - 8/14/2003and
RESOLUTION NO. R- 03- 08- 14 -14E4
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,
WHEREAS,pursuant to Texas Local Government Code, §271.114(a)
the City Council adopted Resolution No. R- 03- 05- 22 -11E1 whereby the
Council determined that "Construction Manager -at- Risk" is the
delivery method which provides the best value for the City for the
expansion of the Dell Diamond /United Heritage Center (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 Chasco Contracting 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
Construction Manager at Risk Agreement and Amendment No. 1 to
Agreement between Owner and Construction Manager -at -Risk
( "Agreement ") with Chasco Contracting which is attached hereto as
Exhibit "A ", and
WHEREAS, the Council wishes to approve said Agreement, Now
Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK,
TEXAS,
(C�PFDaMOp\::ODMN WORLDOO WO,W DOX/RFSOLV NR3O,1464W POI,
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 Construction
Manager at Risk Agreement and Amendment No. 1 to Agreement between
Owner and Construction Manager -at -Risk with Chasco Contracting for
the expansion of the Dell Diamond /United Heritage Center, 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 14t day of August, 2003.
ST:
.11. 1.. /L
/h
CHRISTINE R. MARTINEZ, City Secre
2
a
N r W L, Mayor
City of Round Rock, Texas
City of Round Rock Contract Forms
Construction Manager at Risk Agreement Section 00550
CITY OF ROUND ROCK §
THE STATE OF TEXAS § KNOW ALL BY THESE PRESENTS:
§
COUNTY OF WILLIAMSON §
THIS AGREEMENT is made and entered into on this day of the month of August, 2003, by and
between the City of Round Rock, Texas, a home -rule city and municipal corporation with principal offices
located at 221 East Main Street, Round Rock, Williamson and Travis Counties, Texas, 78664 (hereinafter
referred to as the "Owner"), and Chasco Contracting, with principal offices located at 2801 Kiphen Road,
Round Rock, Williamson County, Texas, 78664 (hereinafter referred to as the "Construction Manager").
For and in consideration of the mutual terms, conditions and covenants of this Agreement and
accompanying documents between the Owner and the Construction Manager and in consideration of
payments as set forth therein, the Construction Manager hereby agrees to commence and complete the
following Project:
Improvements to the Dell Diamond /United Heritage Facility including of six (6)
additional suites; an 850 -seat Home Run Porch with roof, elevated walkway, and signage;
and a right field east entrance gate, including relocation of interactive play area
together with any and all extra work in accordance with the Project Manual, Drawings and Addenda, as
prepared by the Architect, HKS, Inc., and approved by the Owner.
The Constriction Manager hereby agrees to commence Work within ten (10) calendar days following
the date contained in the Notice to Proceed issued by the Owner, and the Construction Manager hereby
agrees to substantially complete same on or before April 1, 2004.
Waiver of any breach of this Agreement shall not constitute waiver of any subsequent breach.
The Owner agrees to pay the Construction Manager from appropriated funds for satisfactory
performance of this Agreement in accordance with the bid or proposal submitted therefor, subject to proper
additions and deductions, all as provided in the General Conditions, Supplemental Conditions, and Special
Conditions of- this - Agreement, and the Owner agrees to make payments on account- thereof as provided
therein. The Owner warrants and represents that it has appropriated the sum of $750,000.00 from which to
pay the Construction Manager for the Construction Manager's Work under this Agreement; and further, that
the Owner has additionally received from Round Rock Baseball, Inc. cash and /or other assurances,
reasonably acceptable to the Owner, which, when combined, equal at least the sum of $750,000.00 from
which to also pay the sums due to the Construction Manager for the Construction Manager's Work under this
Agreement.
Although drawn by the Owner, both parties hereto expressly agree and assert that in the event of any
dispute over its meaning or application, this Agreement shall be interpreted reasonably and fairly, and neither
more strongly for nor against either party.
IN WITNESS WHEREOF, both parties have caused this Agreement to be signed in their respective
corporate names by duly authorized representatives, and the parties hereby bind themselves, their successors
and assigns for the faithful and full performance of the terms and provisions hereof.
EXECUTED on the latest date of the signatories indicated at the conclusion of this document and all
attachments.
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AGREEMENT BETWEEN OWNER AND CONSTRUCTION MANAGER AT RISK
WHERE CONSTRUCTION MANAGER AT RISK
IS ALSO THE CONSTRUCTOR
1.1 RELATIONSHIP OF PARTIES
All references in this Agreement to any General Conditions shall mean only the City of Round Rock's General
Conditions, which are attached hereto and made a part hereof.
The parties accept the relationship of trust and confidence established by this Agreement, and the
Construction Manager covenants with the Owner to furnish the Construction Manager's reasonable skill and
judgment and to cooperate with the Architect in completing the Project in accordance with all Contract
Documents. 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
2.2 SUBCONTRACTORS AND SUPPLIERS
ARTICLE 1
GENERAL PROVISIONS
ARTICLE 2
CONSTRUCTION MANAGER'S RESPONSIBILITIES
2.1 CONSTRUCTION MANAGER'S DESIGNATED REPRESENTATIVE
The Construction Manager hereby designates in writing the following representative:
Temple Aday
Chasco Contracting
2801 Kiphen Road
Round Rock, TX 78664
Telephone: 512 - 244 -0600
Facsimile: 512 - 244 -0489
Email address: temple@chasco.com
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In addition to complying with statutory requirements of Local Government Code, Section 271.118 et. seq.
regarding advertising, the Construction Manager shall also seek to develop subcontractor interest in the
Project, and may at any time provide documentation to potential bidders. The Construction Manager may
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 may be
requested for each principal portion of the Work. The Architect shall promptly reply in writing to the
Construction Manager if the Architect or the Owner know of any objection to such subcontractor or supplier.
The receipt of any such list from the Construction Manager 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.
2.2.1 Subcontractors and suppliers shall be selected in accordance with paragraphs 2.6.2.1 and 2.6.2.2
herein.
2.3 EXTENT OF RESPONSIBILITY
The Construction Manager does not warrant estimates except as may be included as part of the Guaranteed
Maximum Price. Any recommendations and advice of the Construction Manager concerning design
altematives shall be subject to the review and approval of the Owner and/or 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.
2.4 COMPLETION DATE
2.4.1 Completion Date is a crucial element of the Project. Therefore, Substantial Completion Date is not
subject to change unless due to "force majeure° as defined herein and in any associated Contract Documents
or unless agreed to in advance in writing by the parties.
2.4.2 Substantial Completion Date for the Project is April 1, 2004. This provision shall have priority over
any other provision to the contrary in this Agreement, the General Conditions, or any associated Contract
Documents.
2.5 GUARANTEED MAXIMUM PRICE PROPOSAL
2.5.1 When the Drawings and Specifications are sufficiently complete, the Construction Manager shall
propose a Guaranteed Maximum Price, which shall be the sum of the estimated Cost of the Work and the
Construction Manager's Fee.
2.5.2 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.
2.5.3 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 paragraph 2.5.2 and other costs which are properly reimbursable as Cost of the Work but not the basis
for a Change Order.
2.5.4 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.
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d
.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, allowanj;es, 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, that being April 1, 2004.
2.5.5 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.
2.5.6 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.
2.5.7 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 costs under this
Agreement except as the Owner may specifically authorize in writing.
2.5.8 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. 1. The Guaranteed Maximum Price shall
be subject to additions and to deductions by a change in the Work as is provided for in the Contract
Documents.
2.5.9 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.
2.5.10 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.
2.6 CONSTRUCTION PHASE
2.6.1 Commencement
The Construction Phase shall commence on the earlier of:
(1) The Owner's acceptance of the Construction Manager's Guaranteed Maximum Price
proposal, and the Owner's issuance of a Notice to Proceed; or
(2) The Owner's first authorization to the Construction Manager to:
(a) award a subcontract, or
2.6.2 Administration
(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, except for
structural steel and pre -cast concrete which will be purchased and delivered to the
Project site by Round Rock Baseball, Inc.
2.6.2.1 The Construction Manager shall publicly advertise (in accordance with Texas Local Government
Code, Section 271.025) and receive bids or proposals from trade contractors or subcontractors for the
performance of all major elements of the Work other than the minor work that may be included in 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 itself if it submits its bid or proposal for those portions of
the Work in the same manner as all other trade contractors or subcontractors and if the Owner determines
that the Construction Manager's bid or proposal provides the best value for the Owner. In accordance with
Texas Local Government Code, Section 271.118(1), the Construction Manager and the Owner or its
representative shall review all trade contractor or subcontractor bids or proposals in a manner that does not
disclose the contents of the bid or proposal during the selection process to a person not employed by the
Construction Manager, Engineer, Architect, or Owner. All bids or proposals shall be made public after the
award of the contract or not later than the seventh (7th) day after the date of final selection of bids or
proposals, whichever is later.
2.6.2.2. If the Construction Manager reviews, evaluates, and recommends to the Owner a bid or proposal from
a trade contractor or subcontractor but the Owner requires another bid or proposal to be accepted, the Owner
shall compensate the Construction Manager by a change in price, time, and /or Guaranteed Maximum Price
for any additional cost and 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 271.1180).
2.6.2.3 Subcontracts and agreements with suppliers fumishing materials or equipment fabricated to a special
design shall conform to the payment provisions of paragraphs 6.1.8 and 6.1.9 and shall not be awarded on
the basis of cost plus a fee without the prior written consent of the Owner.
2.6.2.4 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 cause the preparation and distribution of meeting- minutes.
2.6.2.5 Promptly after the Owner's acceptance of the Guaranteed Maximum Price proposal, the Construction
Manager shall prepare a schedule in accordance with these Contract Documents, including the Owner's
occupancy requirements.
2.6.2.6 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.
2.6.2.7 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.
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2.7 PROFESSIONAL SERVICES
The Construction Manager shall not be required to provide professional services that constitute the practice
of architecture or engineering, unless such services are specifically required by the Contract Documents or
unless the Construction Manager has specifically agreed in writing to provide such services. In such event,
the Construction Manager shall cause services to be performed by appropriately licensed professionals.
3.1 INFORMATION AND SERVICES
ARTICLE 3
OWNER'S RESPONSIBILITIES
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.
3.1.2 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.
3.2 OWNER'S DESIGNATED REPRESENTATIVE
The Owner hereby designates in writing the following representative, in accordance with the General
Conditions:
Larry Madsen
Construction Manager Liaison
City of Round Rock
2008 Enterprise Drive
Round Rock, TX 78664
Telephone: 512 - 218 -5552
Facsimile: 512 - 218 -5563
Email address: larrym(a)round- rock.tx.us
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
B151 -1997 entitled "Abbreviated Standard Form of Agreement Between Owner and Architect" current as of
the date of this Agreement, and as specifically modified by the Owner. The Owner shall authorize and cause
the Architect to provide those Additional Services described in the referenced AIA Document B151-1997
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.
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The Owner shall compensate the Construction Manager for Construction Phase services as follows:
4.1 COMPENSATION
4.1.1 For the Construction Manager's performance of the Work, the Owner shall pay the Construction
Manager in current funds the Contract Sum consisting of the Cost of the Work as defined in Article 5 and the
Construction Manager's Fee as follows:
The Construction Manager's Fee shall be two and one -half percent (2.5 %) multiplied by
the total Cost of the Work.
4.1.2 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, 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 Twenty -eight Thousand Five Hundred Fifteen and No/100 Dollars ($28,515.00), based upon
an estimated initial GMP of $1,600,000.00.
4.1.3 The amount which shall be paid to Construction Manager for all General Conditions that may be
reasonably anticipated for this Project, including but not limited to full -time site supervision and management,
field engineering, field offices, surveying, safety, vehicles, telephone and fax service, delivery services, office
supplies and equipment, furniture, storage buildings, drinking water facilities, sanitary facilities, waste
containers, temporary utilities, temporary water connections, general cleanup, as -built drawings, and
scheduling, shall be One Hundred Eleven Thousand Five Hundred Fifty -five and No/100 Dollars
($111,555.00).
4.2 GUARANTEED MAXIMUM PRICE
ARTICLE 4
COMPENSATION FOR CONSTRUCTION PHASE SERVICES
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4.2.1 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 and subject to other changes
authorized by this Agreement and the associated Contract Documents. Such maximum sum as adjusted by
approved changes is referred to as the Guaranteed Maximum Price.
4.2.2 The Guaranteed Maximum Price may be revised from to time by additive or deductive change
orders. The Final Guaranteed Maximum Price shall be the Guaranteed Maximum Price as set forth in
Amendment No. 1 plus/minus change orders.
4.2.3 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 Guaranteed Maximum Price.
4.2.4 Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the
Construction Manager without reimbursement by the Owner.
4.3 CHANGES IN THE WORK
4.3.1 If no specific provision is made 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 adjustment
provisions 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.
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4.3.2 If the Substantial Completion Date is extended beyond April 1, 2004 in accordance with this
Agreement and the associated Contract Documents, then the Construction Manager's General Conditions
as referenced in paragraph 4.1.3 shall be equitably adjusted to reflect the extended Project duration.
5.1 COST OF THE WORK
5.1.2 Subcontract Costs
5.1.4 Other Costs
5.2 DISCOUNTS, REBATES AND REFUNDS
ARTICLE 5
COST OF THE WORK FOR CONSTRUCTION PHASE
5.1.1 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 5.
Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the
subcontracts.
5.1.3 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, but specifically excluding any structural steel and
pre -cast concrete purchased by Round Rock Baseball, Inc. outside the scope of this
Agreement. However, it is expressly understood and agreed by the parties that the
Construction Manager's Fee shall be allowed to include the cost of said structural steel and
pre -cast concrete.
.2 Costs of materials described in the preceding paragraph 5.1.3.1 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.
.1 All other costs incurred in the performance of the Work if and to the extent approved in
advance in writing by the Owner, including costs of Work performed by the Construction
Manager rather than a subcontractor.
5.2.1 Cash discounts obtained on payments made by the Construction Manager shall accrue to the Owner
11(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, such 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.
5.2.2 Amounts which accrue to the Owner in accordance with the provisions of paragraph 5.2.1 shall be
credited to the Owner as a deduction from the Cost of the Work.
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5.3 ACCOUNTING RECORDS
5.3.1 The Construction Manager shall keep full and detailed accounts and exercise such controls as may
be necessary for proper financial management under this Agreement; and 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 (3) years after final payment, or for such longer period as may be
required by law.
6.1 PROGRESS PAYMENTS
ARTICLE 6
CONSTRUCTION PHASE
6.1.1 Based upon Applications for Payment submitted to the Architect by the Construction Manager and
Certificates for Payment issued by the Architect, the Owner shall have the obligation to make progress
payments on account of the Contract Sum to the Construction Manager as provided below and elsewhere in
the Contract Documents.
6.1.2 The period covered by each Application for Payment shall be one (1) calendar month ending on the
last day of the month.
6.1.3 Provided an Application for Payment is received by the Architect not later than the thirtieth (30 day
of a month, the Owner shall make payment to the Construction Manager not later than the thirtieth (30"') day
of the following month. If an Application for Payment is received by the Architect after the application date
fixed herein, payment shall be made by the Owner not later than thirty (30) days after the Architect receives
the Application for Payment.
6.1.4 Following each Application for Payment, 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 (1) progress payments
already received by the Construction Manager; less (2) that portion of those payments attributable to the
Construction Manager's Fee; plus (3) payrolls for the period covered by the present Application for Payment.
6.1.5 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 Owner may require. This schedule shall
be used as a basis for reviewing the Construction Manager's Application for Payment.
6.1.6 Applications for Payment shall show the percentage completion of each portion of the Work as of the
end of the period covered by the Application for Payment. The percentage completion shall be the lesser of
(1) the percentage of that portion of the Work which has actually been completed or (2) the percentage
obtained by dividing (a) the expense which has actually been incurred by the 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.
6.1.7 Subject to other provisions of the Contract Documents, the amount of each progress payment shall
be computed as follows:
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.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, 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 paragraph 4.1.1.
.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 paragraph 6.1.4 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.
6.1.8 Except with the Owner's prior written approval, payments to Subcontractors shall be subject to
retention of not less than five percent (5 %). The Owner and the Construction Manager shall agree upon a
mutually acceptable procedure for review and approval of payments and retention for subcontracts.
6.1.9 Except with the Owner's prior written 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.
6.1.10 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 paragraph 6.1.4 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.
6.2 FINAL PAYMENT
6.2.1 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, 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 thirty (30) days after the issuance of the Architect's final Certificate for Payment, or as follows:
6.2.2 The amount of the final payment shall be calculated as follows:
.1 Take the sum of the Final Guaranteed Maximum Price from paragraph 4.2.
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.2 Subtract amounts, if any, for which the Architect withholds, in whole or in part, a final
Certificate for Payment as provided in 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.
6.2.3 The Owner's accountants will review and report in writing on the Construction Manager's final
accounting within thirty (30) 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 paragraph 6.2.1 have been met,
the Architect will, within seven (7) 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. The time
periods stated in this paragraph 6.2 shall supersede any others contained in Contract Documents.
6.2.4 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 paragraph -8.1 herein dealing with dispute resolution without
a further decision of the Architect. Unless agreed to otherwise, a demand for mediation of the disputed
amount shall be made by the Construction Manager within sixty (60) 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 sixty-
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.
6.2.5 ff, subsequent to final payment and at the Owner's request, the Construction Manager incurs costs
described in paragraph 5.1 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 7
INSURANCE AND BONDS
7.1 The Construction Manager 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, with insurers licensed to do business in
the State of Texas and acceptable to the Owner and under forms of policies satisfactory to the Owner. None
of the requirements contained herein as to types, limits, or the Owner's approval of insurance coverage to be
maintained by the Construction Manager is intended to and shall not in any manner limit, qualify or quantify
the liabilities and obligations assumed by the Construction Manager under the Contract Documents or
otherwise provided by law. In the event of any failure by the Construction Manager to comply with the
provisions of this Article 7, the Owner may, without in any way compromising or waiving any right or remedy
at law or in equity, on notice to the Construction Manager, purchase such insurance, at the Construction
Manager's expense, provided that the Owner shall have no obligation to do so and if the Owner shall do so,
the Construction Manager shall not be relieved of or excused from the obligation to obtain and maintain such
insurance amounts and coverages.
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7.2 INSURANCE
7.2.1 Construction Manager Provided Insurance
7.2.1.1 General Requirements
.1 The Construction Manager shall carry insurance in the types and amounts indicated below
for the duration of the Contract, which shall include items owned by the Owner in the care,
custody and control of the Construction Manager prior to and during construction and
warranty period.
.2 The Construction Manager must complete and forward the required Certificates of lnsurance
to the Owner before the Contract is executed as verification of coverage required below. The
Construction Manager shall not commence Work until the required insurance is obtained and
until such insurance has been reviewed by the Owner. Approval of insurance by the Owner
shall not relieve or decrease the liability of the Construction Manager hereunder and shall not
be construed to be a limitation of liability on the part of the Construction Manager. The
Construction Manager must also complete and forward the required Certificates of Insurance
to the Owner whenever a previously identified policy period has expired as verification of
continuing coverage.
.3 The Construction Manager's insurance coverage is to be written by companies licensed to
do business in the State of Texas at the time the policies are issued and shall be written by
companies with A.M. Best ratings of B +VII or better, except for hazardous material insurance
which shall be written by companies with A.M. Best ratings of A- or better.
.4 All endorsements naming the Owner as additional insured, waivers, and notices of
cancellation endorsements as well as the Certificate of Insurance shall indicate: City of
Round Rock, Department of Public Works and Transportation, 2008 Enterprise Drive, Round
Rock, Texas 78664.
.5 The "other" insurance clause shall not apply to the Owner where the Owner is an additional
insured shown on any policy. It is intended that policies required in the Contract, covering
both the Owner and the Construction Manager, shall be considered primary coverage as
applicable.
.6 If insurance policies are not written for amounts specified below, the Construction Manager
shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified.
If Excess Liability Insurance is provided, it shall follow the form of the primary coverage.
.7 The Owner shall be entitled, upon request and without expense, to receive certified copies
of policies and endorsements thereto and may make any reasonable requests for deletion
or revision or modification of particular policy terms, conditions, limitations, or exclusions
except where policy provisions are established by law or regulations binding upon either of
the parties hereto or the underwriter on any such policies.
.8 The Owner reserves the right to review the insurance requirements set forth during the
effective period of this Contract and to make reasonable adjustments to insurance coverage,
limits, and exclusions when deemed necessary and prudent by the Owner based upon
changes in statutory law, court decisions, the claims history of the industry or financial
condition of the insurance company as well as the Construction Manager. If any adjustments
to coverage result in additional premiums, the GMP shall be adjusted to reflect such
additional premiums.
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.9 The Construction Manager shall not cause any insurance to be canceled nor permit any
insurance to lapse during the term of the Contract or as required in the Contract.
.10 The Construction Manager shall be responsible for premiums, deductibles and self- insured
retentions, if any, stated in policies. All deductibles or self - insured retentions shall be
disclosed on the Certificate of Insurance.
.11 The Construction Manager shall provide the Owner thirty (30) days written notice of erosion
of the aggregate limits below occurrence limits for all applicable coverages indicted within the
Contract.
.12 If Owner -owned property is being transported or stored off-site by the Construction Manager,
then the appropriate property policy will be endorsed for transit and storage in an amount
sufficient to protect the Owner's property.
.13 The insurance coverages required under this contract are required minimums and are not
intended to limit the responsibility or liability of the Construction Manager.
7.2.1.2 Business Automobile Liability Insurance
Provide coverage for all owned, non -owned and hired vehicles. The policy shall contain the
following endorsements in favor of the Owner:
a) Waiver of Subrogation endorsement TE 2046A;
b) 30 day Notice of Cancellation endorsement TE 0202A; and
c) Additional Insured endorsement TE 9901 B.
Provide coverage in the following types and amounts:
.1 A minimum combined single limit of $500,000 per occurrence for bodily injury and property
damage. Alternate acceptable limits are $250,000 bodily injury per person, $500,000 bodily
injury per occurrence and at least $100,000 property damage liability each accident.
7.2.1.3 Workers' Compensation and Employers' Liability Insurance
Coverage shall be consistent with statutory benefits outlined in the Texas Workers' Compensation
Act (Section 401). The Construction Manager shall assure compliance with this statute by
submitting two (2) copies of a standard certificate of coverage (e.g. ACCORD form) to the Owner's
Representative for every person providing services on the Project as acceptable proof of coverage.
The required Certificate of Insurance must be presented as evidence of coverage for the
Construction Manager. Workers' Compensation Insurance coverage written by the Texas Workers
Compensation Fund is acceptable to the Owner. The Construction Manager's policy shall apply
to the State of Texas and include these endorsements in favor of the Owner:
a) Waiver of Subrogation, form WC 420304; and
b) 30 day Notice of Cancellation, form WC 420601.
The minimum policy limits for Employers' Liability Insurance coverage shall be as follows:
.1 $100,000 bodily injury per accident, $500,000 bodily injury by disease policy limit and
$100,000 bodily injury by disease each employee.
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7.2.1.4 Commercial General Liability Insurance
The Policy shall contain the following provisions:
a) Blanket contractual liability coverage for liability assumed under the Contract and
all contracts relative to this Project.
b) Completed Operations/Products Liability for the duration of the warranty period.
c) Explosion, Collapse and Underground (X, C & U) coverage.
d) Independent Contractors coverage.
e) Aggregate limits of insurance per project, endorsement CG 2503.
f) The Owner listed as an additional insured, endorsement CG 2010.
g) 30 day notice of cancellation in favor of the Owner, endorsement CG 0205.
h)_ Waiver of Transfer of Recovery Against Others in favor of the Owner, endorsement
CG 2404.
Provide coverages A &B with minimum limits as follows:
.1 A combined bodily injury and property damage limit of $500,000 per occurrence.
7.2.1.5 Builders' Risk Insurance
7.3 BONDS
7.3.1 General
The Construction Manager shall maintain Builders' Risk Insurance or Installation Insurance
on an all risk physical loss form in the Contract Amount. Coverage shall continue until the
Work is accepted by the Owner. The Owner shall be a loss payee on the policy. If off site
storage is permitted, coverage shall include transit and storage in an amount sufficient to
protect property being transported or stored.
.1 Bonds, when required, shall be executed on forms furnished by or acceptable to the Owner.
All bonds signed by an agent must be accompanied by a certified copy of such agent's
authority to act.
.2 If the surety on any bond furnished by the Construction Manager is declared bankrupt or
becomes insolvent or its right to do business is terminated in the State of Texas or it ceases
to meet the requirements of the preceding paragraph, the Construction Manager shall within
ten (10) days thereafter substitute another bond and surety, both of which must be
acceptable to the Owner.
.3 When Performance Bonds and/or Payment Bonds are required, each shall be issued in an
amount of one hundred percent (100%) of the Contract Amount as security for the faithful
performance and/or payment of all the Construction Manager's obligations under the Contract
Documents. Performance Bonds and Payment Bonds shall be issued by a solvent surety
company authorized to do business in the State of Texas, and shall meet any other
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7.3.2 Performance Bond
.1 If the Contract Amount exceeds $100,000, the Construction Manager shall fumish the Owner
with a Performance Bond in the form set out by the Owner.
.2 If a Performance Bond is required to be furnished, it shall extend for the one (1) year
warranty period.
7.3.3 Payment Bond
.1 If the Contract Amount exceeds $25,000, the Construction Manager shall fumish the Owner
with a Payment Bond in the form set out by the Owner.
7.3.4 Delivery of Required Bonds
.1 The Construction Manager shall deliver the required bonds to the Owner at least three (3)
days before the commencement of any Work at the Project site.
8.1 DISPUTE RESOLUTION
8.2 OTHER PROVISIONS
8.2.1 Extent of Contract
8.2.2 Priority Order
requirements established by law or by the Owner pursuant to applicable law. Any surety duly
authorized to do business in Texas may write Performance and Payment Bonds on a project
without reinsurance to the limit of 10 percent of its capital and surplus. Such a surety must
reinsure any obligations over 10 percent.
Signed Agreement
Addenda to the Contract Documents
ARTICLE 8
MISCELLANEOUS PROVISIONS
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.
This Contract, which includes this Agreement and the other documents incorporated herein by
reference, represents the entire and integrated agreement between the Owner and the Construction Manager
and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement
may be amended only by written instrument signed by both the Owner and Construction Manager. tf anything
in any document incorporated into this Agreement is inconsistent with this Agreement, this Agreement shall
govern.
The intent of the Contract Documents is to include all information necessary for the proper execution
and completion of the Work by the Construction Manager. The Contract Documents are complementary and
what is required by one shall be as binding as if required by all. In cases of disagreement, the following order
of precedence shall govern (top item receiving priority of interpretation):
15
Special Conditions
Supplemental Conditions
General Conditions
Other Bidding or Proposal Requirements and Contract Forms
Special Provisions to the Standard Technical Specifications
Special Specifications
Standard Technical Specifications
Drawings (figured dimensions shall govern over scaled dimensions)
Project Safety Manual, if applicable.
8.2.3 Ownership and Use of Documents
The Drawings, Specifications and other documents prepared by the Architect, and copies thereof
furnished 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.
8.2.4 Goveming Law
This Contract shall be governed by the law of the state where the Project is located, that being Texas,
and venue shall lie in Williamson County, Texas.
8.2.5 Assignment
The Owner and the 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 9
TERMINATION OR SUSPENSION
9.1 TERMINATION PRIOR TO ESTABLISHING GUARANTEED MAXIMUM PRICE
9.1.1 Prior to execution by both parties of Amendment No. 1 establishing the Guaranteed Maximum Price,
the Owner may terminate this Contract at any time without cause, and the Construction Manager may
terminate this Contract if the Work is stopped for a period of thirty (30) consecutive days through no fault of
the Construction Manager or Subcontractors, Sub - subcontractors or their agents or employees or any other
persons or entities performing portions of the Work under direct or indirect contract with the Construction
Manager, for any of the following reasons:
.1 issuance of an order of a court or other public authority having jurisdiction which requires all
Work to be stopped;
.2 an act of government, such as a declaration of national emergency which requires all Work
to be stopped; or
16
.3 because the Architect has not issued a Certificate for Payment and has not notified the
Construction Manager of the reason for withholding certification, or because the Owner has
not made payment on a Certificate for Payment within the time stated in the Contract
Documents.
9.1.2 If the Owner or Construction Manager terminates this Contract pursuant to this paragraph 9.1 after
commencement of the Construction Phase, the Construction Manager shall be paid an amount calculated as
follows:
.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 4.1;
.3 Subtract the aggregate of previous payments made by the Owner on account of the
Construction Phase.
9.1.3 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 paragraph 9.1.2.1. 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 9, execute and deliver all such papers and take all such steps, including the legal assignment of such
subcontracts and other contractual rights of the Construction Manager, as the 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.
9.1.3.1 Subcontracts, purchase orders and rental agreement 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 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.
9.2 TERMINATION SUBSEQUENT TO ESTABLISHING GUARANTEED MAXIMUM PRICE
follows:
Subsequent to execution by both parties of Amendment No. 1, the Contract may be terminated as
The Construction Manager may terminate the Contract if, through no act or fault of the Construction
Manager of a Subcontractor, Sub - subcontractor or their agents or employees or any other persons or entities
performing portions of the Work under direct or indirect contract with the Construction Manager, repeated
suspensions, delays or interruptions of the entire Work by the Owner constitutes in the aggregate more than
one hundred percent (100 %) of the total number of days scheduled for completion, or 120 days in any365 -day
period, whichever is less; or if the Owner fails to pay the Construction Manager as required by this Agreement
and the associated Contract Documents.
9.2.1 In the event of such termination by the Owner, the amount payable to the Construction Manager shall
not exceed the amount the Construction Manager would have been entitled to receive pursuant to paragraphs
9.1.2 and 9.1.3 of this Agreement.
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9.2.2 In the event of such termination by the Construction Manager, the amount to be paid to the
Construction Manager shall not exceed the amount the Construction Manager would be entitled to receive
under paragraphs 9.1.2 or 9.1.3 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.
9.3 SUSPENSION
9.3.1 The Owner may, without cause, order the Construction Manager in writing to suspend, delay, or
interrupt the Work in whole or in part for such period of time as the Owner may determine.
9.3.2 The Contract Sum shall be adjusted for increases in the cost caused by suspension, delay or
interruption as described in paragraph 9.3.1. Adjustments to the Contract Sum shall include profit. No
adjustment shall be made to the extent:
.1 that performance is, was, or would have been so suspended, delayed, or interrupted by
another cause for which the Construction Manager is responsible; or
.2 that an equitable adjustment is made or denied under another provision of the Contract.
9.3.3 If the Work is so suspended by the Owner as described in this paragraph 9.3, then and in that case
the Guaranteed Maximum Price, if established, shall be increased as provided in paragraph 9.3.2 except that
the term "cost of performance of the Contract" 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 paragraph 4.1 of this
Agreement.
ARTICLE 10
LIQUIDATED DAMAGES
10.1 CONSTRUCTION MANAGER SHALL PAY LIQUIDATED DAMAGES (I) IN THE AMOUNT OF
$1,000.00 PER DAY FOR EACH DAY BEYOND THE DATE ESTABLISHED THEREFOR THAT
THE CONSTRUCTION MANAGER FAILS TO ACHIEVE SUBSTANTIAL COMPLETION, AND
(11) IN THE AMOUNT OF $20,000.00 FOR EACH SCHEDULED HOME BASEBALL GAME ON
OR AFTER APRIL 1, 2004, FOR WHICH OWNER AND /OR OWNER'S TENANT ARE UNABLE
TO UTILIZE THE IMPROVEMENTS AND FACILITIES DUE TO THE FAILURE OF
CONSTRUCTION MANAGER TO HAVE ACHIEVED SUBSTANTIAL COMPLETION IN
ACCORDANCE WITH THE CONTRACT.
10.2 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 April 1, 2004, that being the
date specked for Substantial Completion in the Agreement, then and in that event the Construction Manager
shall pay to the Owner, as liquidated damages, the sums specified herein, 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 just 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 Substantial Completion Date. 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.
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10.3 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 April 1, 2004, 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 Project 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.
ARTICLE 11
WARRANTIES
11.1 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 Final Acceptance
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.
11.1.1 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 only with the approval of the Construction Manager,
which approval shall not be unreasonably withheld.
11.1.2 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 Final
Acceptance 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.
11.1.3 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 Final Acceptance and shall be
in form and content otherwise satisfactory to the Owner.
11.1.4 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 Final Acceptance of the entire Work.
ARTICLE 12
OTHER CONDITIONS
12.1 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
19
Construction Manager to bring the Project to full completion. When the Construction Manager performs these
10 the Owner's satisfaction, the Project shall be deemed to be one hundred percent (100 %) completed.
12.1.1 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.
12.2 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.
12.3 The Construction Manager will protect the Work, materials and equipment on the Project 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:
.1 Defective design or material supplied by the Owner, or the Owner's separate contractor or
supplier.
.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.
.3 Damage to any items by the Owner or occupant during move -in, including but not limited to
cabinets, appliances, countertops, drywall or plaster surfaces floor or wall coverings, paint,
plumbing fixtures, faucets, window glass, mirrors, electrical fixtures, and ceramic tile.
THIS AGREEMENT is entered into as of the latest date of the signatories indicated at the
conclusion of this document and all attachments.
OWNER
CITY OF ROUND ROCK, TEXAS
By:
Date:
ATTEST:
By:
By
Date:
Nyle Maxwell, Mayor
Christine R. Martinez, City Secretary
CONSTRUCTION MANAGER
CHASCO CONTRACTING
Temple Aday, President
20
AMENDMENT NO. 1 TO AGREEMENT BETWEEN
OWNER AND CONSTRUCTION MANAGER AT RISK
Pursuant to Article 2 of the Agreement, dated the day of the month of August, 2003, by and between
the City of Round Rock, Texas (the Owner) and Chasco Contracting (the Construction Manager), for
construction of improvements to the Dell Diamond/United Heritage Facility including construction of six
(6) additional suites; an 850 -seat Home Run Porch with roof, elevated walkway, and signage; and a right
field east entrance gate, including relocation of interactive play area (the Project), the Owner and the
Construction Manager hereby establish the scope of the Project, a Guaranteed Maximum Price, and
Completion Date for the Work as set forth below.
The following exhibits supplement this Agreement:
Article 1
THE WORK
The scope of the Project included in this Amendment, and its Guaranteed - Maximum Price, is for the work
in its entirety for the construction of the above - referenced Project.
Article 2
EXHIBITS
Exhibit "A" Construction Manager's Guaranteed Maximum Price Scope Narrative, including
Clarifications, Qualifications and GMP Cost Breakdown
Exhibit "B" Drawings, Specifications and Addenda
The Construction Manager's Guaranteed Maximum Price (the GMP) for the Work, including the estimated
Cost of the Work as defined in Article 5 and the Construction Manager's Fee as defined in Article 4, is the
sum of
($ )•
Article 3
GUARANTEED MAXIMUM PRICE
This price is for the performance of the Work in accordance with the Contract Documents and any attached
exhibits.
Article 4
COMPLETION DATE
The Substantial Completion Date for the Project is April 1, 2004.
1
OWNER: CONSTRUCTION MANAGER:
City of Round Rock, Texas Chasco Contracting
By: B
Nyle Maxwell, Mayor Temple Aday, President
Date: Date:
ATTEST:
Christine R. Martinez, City Secretary
2
City of Round Rock Contract Forms
Special Conditions Section 00800
SCHEDULE OF SPECIAL CONDITIONS TO
AGREEMENT BETWEEN OWNER AND CONSTRUCTION MANAGER AT RISK
This Schedule of Special Conditions shall supplement and shall be in addition to the "Agreement
Between Owner and Construction Manager at Risk Where Construction Manager at Risk is Also the
Constructors dated the day of August, 2003, by and between the City of Round Rock and Chasco
Contracting.
1. Texas Local Government Code, Section 271.118 regarding construction manager at risk is
specifically incorporated into the referenced Agreement Between Owner and Construction
Manager at Risk. The provisions of these sections of the Local Govemment Code shall
govem all aspects of the Agreement where applicable.
2. Within seven (7) days from the date of this Agreement, Construction Manager shall provide
to Owner a schedule of all major elements of the Work to be performed, including items to
be purchased and installed or items for installation such as mechanical equipment and
fumiture. The schedule shall include all items necessary to complete the Work in compliance
with this Agreement and the Contract Documents. Included within the schedule shall be the
initial recommendation by Construction Manager on whether these major elements will be
procured by bidding, request for proposals or another competitive method. Also included
within the schedule shall be a recommendation by Construction Manager on how the various
elements of the Work are to be packaged or grouped for purposes of contracting.
3. Within seven (7) days from the date of this Agreement, Construction Manager shall provide
to Owner a description of all Work proposed to be performed by Construction Manager as
a part of the General Conditions Cost and a list of Work on which Construction Manager will
bid and seek to perform Work.
4. Construction Manager shall occupy the position of General Contractor for the purposes of
this Agreement. Whenever the terms General Contractor, Contractor, Construction Manager
or Construction Manager at Risk are referred to in this Agreement or the contract
Documents, they all shall have the same meaning. Construction Manager shall assume the
risk for construction of the Work for the Contract Sum or Guaranteed Maximum Price (GMP)-
in the same manner as a General Contractor, and Construction Manager shall provide
consultation to Owner regarding construction during and after the design of the Work.
5. Owner, at Owner's expense, shall provide or contract for inspection services, testing of
construction materials engineering and any verification testing services necessaryor required
by Owner for acceptance of the Work by Owner.
6. Construction Manager shall provide to Owner a Guaranteed Maximum Price (GMP) of the
Work as part of this Agreement and the Contract Documents. This GMP shall be provided
for consideration by Owner on or before September 9, 2003. The GMP so supplied will
become the GMP upon approval by Owner.
7. There is only one Guaranteed Maximum Price (GMP) provided in this Agreement and the
Contract Documents. 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 by the stated Completion Date, as same may be
adjusted by other provisions of the Contract Documents.
8. The Contract Sum or GMP may be revised from time to time by change orders which add or
deduct amounts. The final contract sum shall be the Contract Sum or GMP as defined in the
Agreement, adjusted by additions or deductions and approved Change Order.
9. The costs to be paid or reimbursed to Construction Manager as a part of the Contract Sum
or GMP are the following:
A. The General Conditions cost;
B. The amounts of subcontracts and other contracts approved by Construction
Manager and Owner;
C. The amounts, if any, due to Construction Manager pursuant to Owner's direction to
use a subcontractor other than the one recommended by Construction Manager;
D. The cost of premiums for payment and performance bonds for the Work;
E. Permit fees and other governmental fees paid in order to perform the Work; and
F. All other costs incurred in the performance of the Work if and to the extent approved
in advance in writing by Owner, including costs of Work performed by Construction
Manager instead of a subcontractor.
10. The following costs are not included in the Contract Sum or GMP and shall be paid directly
by Owner:
A. Architectural, structural, mechanical, electrical, plumbing, geotechnical, civil and
other engineering fees contracted by Owner;
B. Utility assessments, deposits, connection fees, capital recovery and similar costs or
fees to provide utility service to the Work;
C. Damages caused by weather or Acts of God and not covered by insurance, provided
that Construction Manager has not breached its duty to procure insurance to cover
such casualty.
11. The estimated Cost of the Work shall include Construction Manager's contingency, a sum
established by Construction Manager for Construction Manager's exclusive use to cover
costs arising under paragraph 2.5.2 of the "Agreement Between Owner and Construction
Manager at Risk where Construction Manager at Risk is Also the Constructor" and other
costs which are properly reimbursable as Cost of the Work but not the basis for a Change
Order.
__12.. .. The Contract Sum or GMP may include allowances as specifically designated by agreement
between Owner and Construction Manager. If the actual cost of an item covered by an
allowance is more than the allowance, upon approval by Owner, the allowance shall be
increased and the Contract Sum or GMP shall be increased a similar amount. If the cost of
an item covered by the allowance is less than the allowance, the Contract Sum of GMP shall
be decreased by the amount of the difference.
13. Cost savings shall not be shared between Construction Manager and Owner, and cost
savings shall be returned and credited 100% to Owner.
14. Except for contracts of Round Rock Baseball, Inc. for structural steel and pre-cast concrete,
all contracts or subcontracts for performance of any part of the Work or delivery of any
materials in connection with the Work shall be in the name of Construction Manager. All
contracts shall have Construction Manager as a named party, and Owner shall be named in
form and content approved by Owner, and Owner shall require that all insurance provided
under the contract shall name Owner as an additional named insured. The form and content
shall be on standard subcontract forms subject to approval of Owner.
15. All warranties of any type in connection with the Work shall be assigned to and shall be
exercisable by Owner in addition to Construction Manager.
16. Owner shall have the right to require Construction Manager to terminate the contract of any
subcontractor or sub - subcontractor provided that in the event of such termination, provisions
of Local Government Code, Section 271.118(k) shall be applicable. If a subcontractor
defaults in the performance of its portion of the Work or faits to execute a subcontract after
being selected in accordance with this Agreement, then Construction Manager itself may,
without advertising, fulfill the subcontract requirements or select a replacement subcontractor
to fulfill the subcontract requirements. Such action shall be taken only with the approval of
Owner.
17. Owner or Construction Manager may require a subcontractor or materialman to supply
payment and performance bonds in form and content acceptable to Owner and naming
Owner as an additional named insured as part of the contract between Contractor and the
subcontractor or materialman. Owner shall advise Construction Manager of any trades that
Owner will require subcontract bonds from, prior to establishment of Construction Manager
and prior to Construction Manager soliciting proposals or bids.
18. Owner warrants and represents that it has appropriated the sum of $750,000.00 from which
to pay Construction Manager for Construction Manager's Work under this Agreement; and
further, that Owner has additionally received from Round Rock Baseball, Inc. cash and/or
other assurances, reasonably acceptable to Owner, which, when combined, equal at least
the sum of $750,000.00 from which to also pay the sums due to Construction Manager for
Construction Manager's Work under this Agreement.
19. Owner and Construction Manager agree that Owner and its E/A will promptly respond to all
project submission matters issued by Construction Manager. The term `promptly respond"
shall mean a response that is made by Owner not later than five (5) calendar days after the
date of submission by Construction Manager to Owner and its E/A. If no response from
Owner and its E/A is delivered to Construction Manager within the stated time frame, that is,
within five (5) calendar days after submission, then same shall be considered an
unreasonable delay which is beyond the control of Construction Manager, and Construction
Manager shall have additional time equal to the amount of time in excess of five (5) calendar
days to complete the Project, and the completion date will be extended by such number of
days. Such unreasonable delay shall be regarded as a "force majeure."
20. Owner acknowledges that it has been told by Construction Manager and Round Rock
Baseball, Inc. that certain items of structural steel and pre-cast concrete will be ordered, paid
for, and delivered tothe Project site completely outside the scope of this Agreement and the
Contract Documents, and Owner interposes no objection to same. Owner acknowledges
that failure on the part of Round Rock Baseball, Inc. to effect a timely delivery of such items
to the Project site shall be regarded as unreasonable delay and shall be regarded as a "force
majeure."
TABLE OF CONTENTS OF GENERAL CONDITIONS
City of Round Rock Contract Forms
General Conditions Section 00700
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. CONTRACTOR'S RESPONSIBILITIES 10
7. OTHER WORK 17
8. OWNER'S RESPONSIBILITIES 17
9. ENGINEER/ARCHITECT'S 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 22
14. PAYMENTS TO CONTRACTOR AND COMPLETION 24
15. SUSPENSION OF WORK AND TERMINATION 28
16. DISPUTE RESOLUTION 29
17. RIGHT TO AUDIT 30
18. MISCELLANEOUS 31
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GENERAL CONDITIONS
FOR USE WITH CONSTRUCTION MANAGER
AT RISK AGREEMENT
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 00550 for Construction Manager at Risk.
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 Chanqe 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.
1.7 Chanqe 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.
1.8 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.
1.9 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.
1.10 Contract Amount - The amount payable by
the OWNER to the CONTRACTOR for completion of
the Work in accordance with the Contract
Documents.
1.11 Contract Documents - Project Manual,
Drawings, Addenda and Change Orders.
1.12 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.
1.13 CONTRACTOR - The individual, firm,
corporation, or other business entity with whom the
OWNER has entered into the Contract, and any
references herein to CONTRACTOR shall mean the
Construction Manager at Risk.
1.14 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.
1.15 Enqineer /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 (E /A). Nothing contained in the
Contract Documents shall create any contractual or
agency relationship between E/A and the
CONTRACTOR.
1.16 Equal - The terms "equal" or "approved
equal" shall have the same meaning.
1.17 Execution Date - Date of last signature of
the parties to the Agreement.
1.18 Field Order - A written order issued by
Owner's Representative which orders minor changes
00700 08/05/03 Page 2 General Conditions
in the Work and which does not involve a change in
the Contract Amount or the Contract Time.
1.19 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 is issued by the OWNER.
1.20 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.
1.21 Inspector - The authorized representative of
any regulatory agency that has jurisdiction over any
portion of the Work.
1.22 Legal Holidays
1.22.1 The following are observed 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
1.22.2 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.
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1.22.3 If Christmas Eve falls on a Saturday or a
Sunday, the preceding Friday is observed as the
Christmas Eve holiday.
1.22.4 If Christmas Day falls on a Saturday or a
Sunday, the following Monday is observed as the
Christmas Day holiday.
1.23 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.
1.24 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.
1.25 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.
1.26 Owner's Representative - The designated
representative of the OWNER.
1.27 Partial Occupancy or Use - Use by the
OWNER of a partially 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.
1.28 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.
1.29 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.
1.30 Proposal — Proposal of Offeror, under Local
Government Code §271.113 providing for alternative
project delivery methods, on prescribed forms setting
forth prices for performing the Work described in the
Contract Documents.
1.31 Proposal Documents — The advertisement or
invitation for Proposals, Instruction to Offerors, the
Page 3 General Conditions
Proposal form, the Contract Documents and
Addenda.
1.32 Resident Project Representative - The
authorized representative of E/A who may be
assigned to the site or any part thereof.
1.33 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.
1.34 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.
1.35 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, the
Work has progressed to the point such that all parts
of the Work under consideration are fully operational,
as evidenced by a Certificate of Substantial
Completion approved by the OWNER.
1.36 Subcontractor - An individual, firm, or
corporation having a direct contract with the
CONTRACTOR for the performance of a part of the
Work.
1.37 Sub - subcontractor - A person or entity who
has a direct or indirect contract with a Subcontractor
to perform a portion of the Work.
1.38 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.
1.39 Supplemental General Conditions - The part
of the Contract Documents which either 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.
1.40 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.
1.41 Time Extension Request - An approved
request for time extension on a form acceptable to
the OWNER.
1.42 Work - The entire completed construction, or
the various separately identifiable parts thereof,
required to be furnished under the Contract
Documents.
1.43 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
in that event a Working Day will be counted for each
such day.
1.44 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
1.43 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.
1.45 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 to the CONTRACTOR's duly
authorized representative, or if such Written Notice is
delivered to or sent by registered or certified mail to
the attention of Owner's Representative or to 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:
Within ten (10) Calendar Days after written
notification of award of Contract, the CONTRACTOR
shall deliver to the OWNER the signed Agreement,
00700 08/05/03 Page 4 General Conditions
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 Owners 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
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
00700 08/05/03 Page 5 General Conditions
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 3.32. The CONTRACTOR shall
be liable to the OWNER for failure to report any such
conflict, error, ambiguity or discrepancy of which the
CONTRACTOR knew.
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
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
00700 08105103 Page 6 General Conditions
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 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.
4.2.4 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 shall 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
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.
00700 08/05/03 Page 7 General Conditions
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.
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
00700 08105/03 Page 8 General Conditions
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.
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.
00700 08/05/03 Page 9 General Conditions
5.3 Other Bond and Insurance Requirements:
For specific bond requirements and additional
insurance requirements, refer to the Supplemental
General Conditions or the Construction Manager at
Risk Agreement, Section 00550.
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 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. 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
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.
00700 08/05/03 Page 10 General Conditions
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, and
reasonable time shall be defined as within five (5)
calendar days. 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
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
be made by a Change Order or Time
Extension Request in accordance with
Article 12.
00700 08105103 Page 11 General Conditions
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 publicly advertise
(in accordance with Texas Local Government Code,
Section 271.025) and receive bids or proposals from
trade contractors or subcontractors for the
performance of all major elements of the work other
than the minor work that may be included in the
general conditions, all in accordance with Texas
Local Government Code, Section 271.118(h). The
CONTRACTOR may seek to perform portions of the
work itself if it submits its bid or proposal for those
portions of the work in the same manner as all other
trade contractors or subcontractors and if the
OWNER determines that the CONTRACTOR's bid
or proposal provides the best value for the OWNER.
In accordance with Texas Local Government Code,
Section 271.118(1), the CONTRACTOR and the
OWNER shall review all trade contractor or
subcontractor bids or proposals in a manner that
does not disclose the contents of the bid or proposal
during the selection process to a person not
employed by the CONTRACTOR, Engineer,
Architect, or OWNER. All bids or proposals shall be
made public after the award of the contract or not
later than the seventh (7 day after the date of final
selection of bids or proposals, whichever is later.
If the CONTRACTOR reviews, evaluates, and
recommends to the OWNER a bid or proposal from
a trade contractor or subcontractor but the OWNER
requires another bid or proposal to be accepted, the
OWNER shall compensate the CONTRACTOR by a
change in price, time, or guaranteed maximum cost
for any additional cost and risk that the
CONTRACTOR may incur because of the OWNER's
requirement that another bid or proposal be
accepted.
In addition to meeting the statutory requirements for
advertising under the above - referenced Texas Local
Government Code, Section 271.025, the
CONTRACTOR may, prior to publishing such
advertisement required by the section, confer with
potential subcontractors, suppliers, and bidders to
discuss all or any portion of the Project, including but
not limited to the plans and costs of the Project.
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
00700 08/05/03 Page 12 General Conditions
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.
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. The OWNER shall issue a "Texas Sales
and Use Tax Exemption Certification," thereby
authorizing the CONTRACTOR to use same in the
purchase of materials for the Project.
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,
00700 08/05103 Page 13 General Conditions
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,
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
00700 08/05/03
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. All
damage, injury or loss to any property referred to in
this section caused, directly or indirectly, in whole or
in part, by the acts or omissions of the
CONTRACTOR, the OWNER, or E /A, or E /A's
consultant or anyone whose acts any of them may
be liable, shall be determined in accordance with
comparative negligence doctrines. 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
Page 14 General Conditions
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:
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 Owners 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 ETA'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 agree in writing.
6.13 CONTRACTOR's General Warranty
6.13.1 The CONTRACTOR warrants to the
OWNER that all Work will be performed in a good
and workmanlike mariner in accordance with the
Contract Documents and will not be defective. The
CONTRACTOR's warranty 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 acceptance of Work 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
00700 08/05/03 Page 15 General Conditions
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:
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 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, E /A, E/A's consultants, and their
officers, directors, partners, employees or agents
caused in whole or in part 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 and indemnifications 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. All warranties made in, required by or
given in accordance with the Contract Documents
will be for one (1) year from date of Final
Acceptance.
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.
00700 08/05103 Page 16 General Conditions
6.17 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.
FOR SPECIFIC LIQUIDATED DAMAGES
REQUIREMENTS, REFER TO ARTICLE 10 OF
THE CONSTRUCTION MANAGER AT RISK
AGREEMENT, SECTION 00550.
ARTICLE 7 - OTHER WORK
7.1 The OWNER may perform other work
related to the Project at the site by the OWNER's
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 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 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.
00700 08/05103 Page 17 General Conditions
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 (he 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).
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 is not
for the benefit of the CONTRACTOR, Subcontractor,
Sub - 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.
E/A 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, 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 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:
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
00700 08 /05/03 Page 18 General Conditions
represent the OWNER at the site who is not E /A,
E /A's consultant, agent or employee.
9.5 Clarifications and Interpretations:
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
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 for in
paragraph 11.5.
00700 08/05/03 Page 19 General Conditions
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.
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 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 Owners
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 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.
00700 08/05/03
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, at 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
Page 20 General Conditions
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
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 Owners
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.
00700 08/05)03 Page 21 General Conditions
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
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 verges quantity and
determines original quantity is in error by
five percent (5 %) or more.
11.6.6 Right to Verify Information: The
CONTRACTOR agrees that any designated
representative of the OWNER shall have the right to
examine the CONTRACTOR's records to verify the
accuracy and appropriateness of the pricing data
used to price change proposals. Even after a
Change Order Proposal has been approved, the
CONTRACTOR agrees that if the OWNER later
determines the cost and pricing data submitted was
inaccurate, incomplete, not current or not in
compliance with the terms of this Agreement
regarding pricing of change orders, then an
appropriate contract price reduction will be made.
11.6.7 Pricing Information Requirements: The
CONTRACTOR agrees to provide and require all
subcontractors to provide a breakdown of allowable
labor and labor burden cost information as outlined
herein. This information will be used to evaluate the
potential cost of labor and labor burden related to
change order work. It is intended that this
information represent an accurate estimate of the
CONTRACTOR's actual labor and labor burden cost
components. This information is not intended to
establish fixed billing or change order pricing labor
rates. However, at the time change orders are
priced the submitted cost data for labor rates may be
used to price change order work. The accuracy of
any such agreed -upon labor cost components used
to price change orders will be subject to later audit.
Approved change order amounts may be adjusted
later to correct the impact of inaccurate labor cost
00700 08/05/03
components if the agreed -upon labor cost
components are determined to be inaccurate.
ARTICLE 12 - CHANGE OF CONTRACT TIMES
12.1 The OWNER will consider time extension
requests and grant the CONTRACTOR an extension
of time because of:
.1 Changes ordered in the work which
justify additional time.
.2 Force majeure events, meaning Acts of
God, strikes, lockouts or other industrial
disturbances, acts of the public enemy,
orders of any kind of the government of
the United States of America, or of any
state thereof, or any civil or military
authority, insurrections, riots, epidemics,
landslides, lightning, earthquakes, fires,
hurricanes, tornadoes, storms, floods,
washouts, droughts, arrests, restraining
of government and people, civil
disturbances, explosions, nuclear
accidents, wars, part or entire failure of
utilities, shortages of labor, material,
supplies or transportation, or any other
cause not reasonably within the control
of the party claiming inability to perform
due to such cause. Force majeure shall
not, however, include economic
hardship.
.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.
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,
Page 22 General Conditions
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 E /A's
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 If 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 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.
00700 08/05/03 Page 23 General Conditions
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 warranty 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.
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 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 Owners
Representative for review an Application for
Payment, in a form acceptable to the OWNER, filled
00700 08/05/03 Page 24 General Conditions
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 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 percent (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
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 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
any subsequent tests called for in the
Contract Documents, to a final
determination of quantities and
classifications for unit price Work, and to
00700 08/05/03 Page 25 General Conditions
any other qualifications stated in the
recommendation).
14.3.3 By recommending any such payment,
Owners 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;
.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
accordance 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.
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
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.
00700 08/05/03 Page 26 General Conditions
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:
The OWNER, at the OWNER's sole option, shall
have the right to take possession of and use any
completed or partially completed portion of the Work
regardless of the time for completing the entire
Work. The OWNER's exercise of such use and
possession shall not be construed to mean that the
OWNER acknowledges that any part of the Work so
possessed and used is substantially complete or that
it is accepted by OWNER, and the OWNER's
exercise of such use and possession shall not
relieve the CONTRACTOR of its responsibility to
complete all Work in accordance with the Contract
Documents.
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.
00700 08/05/03 Page 27 General Conditions
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
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 claims by the
CONTRACTOR against the OWNER,
except claims arising from unsettled
claims, from failure to comply with the
Contract Documents, or from the
OWNER's continuing obligations under
the Contract Documents.
ARTICLE 15 - SUSPENSION OF WORK AND
TERMINATION
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. 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
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
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;
15.1 OWNER May Suspend Work Without .4 if the CONTRACTOR makes fraudulent
Cause and for Convenience: statements;
00700 08/05103 Page 28 General Conditions
.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
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
00700 08/05/03
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, 7.5, 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
Page 29 General Conditions
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
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 — RIGHT TO AUDIT
17.1 Right to Audit:
Whenever the OWNER enters into any type of
contractual arrangement with the CONTRACTOR,
then the CONTRACTOR's "records" shall upon
reasonable notice be open to inspection and subject
to audit and /or reproduction during normal business
working hours. The OWNER's representative, or an
outside representative engaged by the OWNER,
may perform such audits. The CONTRACTOR shall
maintain all records relating to this Agreement for
four (4) years from the date of final payment under
this Agreement, or until pending litigation has been
completely and fully resolved, whichever occurs
later.
17.1.1 The OWNER shall have the exclusive right
to examine the records of the CONTRACTOR. The
term "records" as referred to herein shall include any
and all information, materials and data of every kind
and character, including without limitation records,
books, papers, documents, contracts, schedules,
commitments, arrangements, notes, daily diaries,
reports, drawings, receipts, vouchers and
memoranda, and any and all other agreements,
sources of information and matters that may, in the
OWNER's judgment, have any bearing on or pertain
to any matters, rights, duties or obligations under or
covered by any contract document. Such records
shall include (hard copy, as well as computer -
readable data if it can be made available), written
policies and procedures, time sheets, payroll
registers, cancelled checks, personnel file data,
correspondence, general ledger entries, and any
other record in the CONTRACTOR's possession
which may have a bearing on matters of interest to
the OWNER in connection with the
CONTRACTOR's dealings with the OWNER (all of
the foregoing are hereinafter referred to as
"records "). In addition, the CONTRACTOR shall
permit interviews of employees as well as agents,
representatives, vendors, subcontractors and other
third parties paid by the CONTRACTOR to the extent
00700 08/05/03 Page 30 General Conditions
necessary to adequately permit evaluation and
verification of the following:
a) The CONTRACTOR's compliance with
contract requirements;
b) The CONTRACTOR's compliance with
the OWNER'S business ethics policies;
and
c) If necessary, the extent of the Work
performed by the CONTRACTOR at the
time of contract termination.
17.1.2 The CONTRACTOR shall require all payees
(examples of payees include subcontractors,
insurance agents, material suppliers, etc.) to comply
with the provisions of this Article 17 by securing the
requirements hereof in a written agreement between
the CONTRACTOR and payee. Such requirements
include a flow -down right of audit provision in
contracts with payees that also apply to
subcontractors and sub - subcontractors, material
suppliers, etc. The CONTRACTOR shall cooperate
fully and shall require Related Parties and all of the
CONTRACTOR's subcontractors to cooperate fully
in furnishing or in making available to the OWNER
from time to time whenever requested, in an
expeditious manner, any and all such information,
materials, and data.
17.1.3 The OWNER's authorized representative or
designee shall have reasonable access to the
CONTRACTOR's facilities, shall be allowed to
interview all current or former employees to discuss
matters pertinent to the performance of this
Agreement, and shall be provided adequate and
appropriate work space in order to conduct audits in
compliance with this Article 17.
17.1.4 If an audit inspection or examination in
accordance with this Article 17 discloses overpricing
or overcharges of any nature by the CONTRACTOR
to the OWNER in excess of one -half of one percent
(.5 %) of the total contract billings, then the
reasonable actual cost of the OWNER's audit shall
be reimbursed to the OWNER by the
CONTRACTOR. Any adjustments and/or payments,
which must be made as a result of any such audit or
inspection of the CONTRACTOR's invoices and /or
records, shall be made within a reasonable amount
of time (not to exceed 90 days) from presentation of
the OWNER's findings to the CONTRACTOR.
17.1.5 The CONTRACTOR shall take reasonable
actions to prevent any actions or conditions which
could result in a conflict with the OWNER's best
interests. These obligations shall apply to the
activities of the CONTRACTOR's employees,
agents, subcontractors, etc. in their dealings and
relations with the OWNER's current and former
employees and their relatives. For example, the
CONTRACTOR's employees, agents or
subcontractors should not make or provide to be
made any employment, gifts, extravagant
entertainment, payments, loans or other
considerations to the OWNER's representatives,
employees or their relatives.
17.1.6 It is also understood and agreed by the
CONTRACTOR that any solicitation of gifts or any
other item of value by anyone representing the
OWNER is to be reported within two (2) business
working days to the OWNER at the following
telephone number: 512 - 218 -5401. Failure to report
any such solicitations or offers shall be deemed a
material breach of contract entitling the OWNER to
pursue damages resulting from the failure to comply
with this provision.
ARTICLE 18 - MISCELLANEOUS
18.1 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.
18.2 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.
18.3 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.
18.4 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
00700 08/05/03 Page 31 General Conditions
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.
18.5 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.
18.6 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.
18.7 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 08105/03 Page 32 General Conditions
w
N
Al I A
s
E
DELL DIAMOND
ROUNDROCKTLXAS
DATE: August 8, 2003
SUBJECT: City Council Meeting - August 14, 2003
ITEM: 14.E.4. Consider a resolution authorizing the Mayor to execute a
Construction Manager -at -Risk agreement with Chasco
Contracting for the improvements to the Dell
Diamond /United Heritage Convention Center.
Resource: Tom Word, Chief of P. W. Operations
Larry Madsen, Construction Manager
History: The city received four proposals for the construction manager -at
risk for the Dell Diamond /United Heritage Convention Center
Facility. The four proposals were from Brath, Inc., Chasco
Contracting, FT Woods Construction, and WCI Texas. Cost made
up 40% of total scoring and performance rating (technical scoring)
made up 60% of total scoring. Chasco Contracting had the best
cost total and received the highest performance rating scoring by
the selection committee. The committee consisted of Reid Ryan,
Reese Ryan, Cindy Demers and Larry Madsen.
Funding:
Total Estimated Project Cost: $1,600,000
Estimated CMR Cost: $177,570
Source of funds: Convention Center Expansion Funds - not to exceed
$800,000
Round Rock Baseball
Outside Resources: Chasco Contracting
Impact /Benefit: Additional seating for ballpark and entrance gate at right
field area.
Public Comment: N/A
Sponsor: N/A
8.25
6.75
7.5
8
8.75
9 1 9.25
8.75
8.75
6
9.25
7.25
9
9
9.75
9.75
8.25
143.25
$ 308,754.00
BRATH
9
8
9.5
9
9
10
9
9.5
9
7
9.5
8
9.5
9.5
9.75
9.75
9.75
154.75
$ 177,570.00
CHASCO
8.5
6.75
4.75
8
8.5
9
7
825
8.5
5.5
8.5
7.25
8.25
9.25
8.25
8.75
9.25
134.25
$ 221,660.00
FT WOODS
8.75
10
1.75
8.5
8.5
9
9
8.75
8
6
9
9
8.75 8.5
9.25
9.25
3.75
135.75
$ 184,626.00
WCI TEXAS
/ Experience of the Construction Mena or (CM
BRATH (Proposers Performance Rating / Highest Performance Rating) X 60 = Technical Score
143.25 / 154.75 X 60 = 55.54
CHASCO (Proffers Performance Rating /Highest Performance Rating) X 60 = Technical Score
154.75 / 154.75 X 60 = 60
FT WOODS (Proposers Performance Rating /Highest Performance Rating) X60 = Technical Score
13.4.25 / 154.75 X 60 = 52.05
(Proposers Performance Rating / Highest Performance Rating) X 60 = Technical Score
WCI, TEXAS
135.75 1 154.75 X 60 = 52.63
RATING SCALE AVERAGES
PER PROPOSER
DELL DIAMOND /UNITED HERITAGE CENTER
Past Performance of the CM
Proposed
personnel
& me mt team
/Reputation / Financial Siren
(Lowest Priced Proposal /Proposers Price) X 40 = Pnce Score
5177.570 / 308.754 X 40 = 23
(Lowest Priced Proposal / Proposers Price) X 40 = Price Score
$177.570 / 177.570 X 40 = 40
(Lowest Priced Proposed / Proposers Price) X40 = Price Scone
$177.570 1 221.560 X 40 = 32
78
100
84.05
(Lowest Priced Proposal /Proposer's Price) X 40 = Pike Score
5177.570 / 184.525 X 40 = 38 90.63
9
8
9.5
9
9
10
9
9.5
9
7
9.5
8
9.5
9.5
9.75
9.75
9.75
154.75
S 177,570.00
CHASCO
8.5
6.75
4.75
8
8.5
9
7
8.25
8.5
5.5
8.5
7.25
8.25
9.25
, 8.25
8.75
9.25
134.25
S 221,660.00
FT WOODS
8.75
10
1.75
8.5
8.5
9
9
8.75
8
6
9
9
8.75
8.5
9.25
9.25
3.75
135.75
S 184,525.00
WCI TEXAS
BRATH (Proposers Performance Rating /Highest Performance Rating) X 60 = Technical Score (Lowest Priced Proposal /Proposers Price) X 40 = Price Score
143.25 / 154.75 X 60 = 55.54 5177 570 / 308.754 X 40 = 23
CHASCO (Proposers Performance Rating / Highest Performance Rating) X 60 = Technical Score
154.75 / 154.75 X 60 = 60
FT WOODS (Proposers Performance Rating / Highest Performance Rating) X 60 = Technical Score
134.25 / 154.75 X 60 = 52.05
RATING SCALE AVERAGES
PER PROPOSER
DELL DIAMOND /UNITED HERITAGE CENTER
WCI, TEXAS (Proposers Performance Rating / Highest Performance Rating) X 60 = Technical Score
135.75 / 154.75 X 60 = 52.63
(Lowest Priced Proposal /Proposer's Price) X 40 = Price Score
5177 570 / 177,570 X 40 = 40
(Lowest Priced Proposal / Proposers Price) X40 = Price Score
8177 570 / 221.560 X 40 = 32
(Lowest Priced Proposal /Proposers Price) X 40 = Price Score
5177 570 / 184 525 X 40 = 38
78
100
84.05
90.63
CITY OF ROUND ROCK
THE STATE OF TEXAS
COUNTY OF WILLIAMSON
R -03 -08 114-1 Li
City of Round Rock Contract Forms
Construction Manager at Risk Agreement Section 00550
§
§ KNOW ALL BY THESE PRESENTS:
THIS AGREEMENT is made and entered into on this 1 day of the month of August, 2003, by and
between the City of Round Rock, Texas, a home -rule city and municipal corporation with principal offices
located at 221 East Main Street, Round Rock, Williamson and Travis Counties, Texas, 78664 (hereinafter
referred to as the "Owner "), and Chasco Contracting, with principal offices located at 2801 Kiphen Road,
Round Rock, Williamson County, Texas, 78664 (hereinafter referred to as the "Construction Manager ").
For and in consideration of the mutual terms, conditions and covenants of this Agreement and
accompanying documents between the Owner and the Construction Manager and in consideration of
payments as set forth therein, the Construction Manager hereby agrees to commence and complete the
following Project:
Improvements to the Dell Diamond /United Heritage Facility including construction of six (6)
additional suites; an 850 -seat Home Run Porch with roof, elevated walkway, and signage;
and a right field east entrance gate, including relocation of interactive play area
together with any and all extra work in accordance with the Project Manual, Drawings and Addenda, as
prepared by the Architect, HKS, Inc., and approved by the Owner.
The Construction Manager hereby agrees to commence Work within ten (10) calendar days following
the date contained in the Notice to Proceed issued by the Owner, and the Construction Manager hereby
agrees to substantially complete same on or before April 1, 2004.
Waiver of any breach of this Agreement shall not constitute waiver of any subsequent breach.
The Owner agrees to pay the Construction Manager from appropriated funds for satisfactory
performance of this Agreement in accordance with the bid or proposal submitted therefor, subject to proper
additions and deductions, all as provided in the General Conditions, Supplemental Conditions, and Special
Conditions of this Agreement, and the Owner agrees to make payments on account thereof as provided
therein. The Owner warrants and represents that it has appropriated the sum of $750,000.00 from which to
pay the Construction Manager for the Construction Manager's Work under this Agreement; and further, that
the Owner has additionally received from Round Rock Baseball, Inc. cash and /or other assurances,
reasonably acceptable to the Owner, which, when combined, equal at least the sum of $750,000.00 from
which to also pay the sums due to the Construction Manager for the Construction Manager's Work under this
Agreement.
Although drawn by the Owner, both parties hereto expressly agree and assert that in the event of any
dispute over its meaning or application, this Agreement shall be interpreted reasonably and fairly, and neither
more strongly for nor against either party.
IN WITNESS WHEREOF, both parties have caused this Agreement to be signed in their respective
corporate names by duly authorized representatives, and the parties hereby bind themselves, their successors
and assigns for the faithful and full performance of the terms and provisions hereof.
EXECUTED on the latest date of the signatories indicated at the conclusion of this document and all
attachments.
1
AGREEMENT BETWEEN OWNER AND CONSTRUCTION MANAGER AT RISK
WHERE CONSTRUCTION MANAGER AT RISK
IS ALSO THE CONSTRUCTOR
1.1 RELATIONSHIP OF PARTIES
ARTICLE 1
GENERAL PROVISIONS
The parties accept the relationship of trust and confidence established by this Agreement, and the
Construction Manager covenants with the Owner to furnish the Construction Manager's reasonable skill and
judgment and to cooperate with the Architect in completing the Project in accordance with all Contract
Documents. 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
All references in this Agreement to any General Conditions shall mean only the City of Round Rock's General
Conditions, which are attached hereto and made a part hereof.
2.2 SUBCONTRACTORS AND SUPPLIERS
ARTICLE 2
CONSTRUCTION MANAGER'S RESPONSIBILITIES
2.1 CONSTRUCTION MANAGER'S DESIGNATED REPRESENTATIVE
The Construction Manager hereby designates in writing the following representative:
Temple Aday
Chasco Contracting
2801 Kiphen Road
Round Rock, TX 78664
Telephone: 512- 244 -0600
Facsimile: 512- 244 -0489
Email address: temple @chasco.com
In addition to complying with statutory requirements of Local Government Code, Section 271.118 et. seq.
regarding advertising, the Construction Manager shall also seek to develop subcontractor interest in the
Project, and may at any time provide documentation to potential bidders. The Construction Manager may
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 may be
requested for each principal portion of the Work. The Architect shall promptly reply in writing to the
Construction Manager if the Architect or the Owner know of any objection to such subcontractor or supplier.
The receipt of any such list from the Construction Manager 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
2.2.1 Subcontractors and suppliers shall be selected in accordance with paragraphs 2.6.2.1 and 2.6.2.2
herein.
2.3 EXTENT OF RESPONSIBILITY
The Construction Manager does not warrant estimates except as may be included as part of the Guaranteed
Maximum Price. Any recommendations and advice of the Construction Manager concerning design
alternatives shall be subject to the review and approval of the Owner and /or 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.
2.4 COMPLETION DATE
2.4.1 Completion Date is a crucial element of the Project. Therefore, Substantial Completion Date is not
subject to change unless due to "force majeure" as defined herein and in any associated Contract Documents
or unless agreed to in advance in writing by the parties.
2.4.2 Substantial Completion Date for the Project is April 1, 2004. This provision shall have priority over
any other provision to the contrary in this Agreement, the General Conditions, or any associated Contract
Documents.
2.5 GUARANTEED MAXIMUM PRICE PROPOSAL
2.5.1 When the Drawings and Specifications are sufficiently complete, the Construction Manager shall
propose a Guaranteed Maximum Price, which shall be the sum of the estimated Cost of the Work and the
Construction Manager's Fee.
2.5.2 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.
2.5.3 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 paragraph 2.5.2 and other costs which are properly reimbursable as Cost of the Work but not the basis
for a Change Order.
2.5.4 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
.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, that being April 1, 2004.
2.5.5 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.
2.5.6 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.
2.5.7 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 costs under this
Agreement except as the Owner may specifically authorize in writing.
2.5.8 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. 1. The Guaranteed Maximum Price shall
be subject to additions and to deductions by a change in the Work as is provided for in the Contract
Documents.
2.5.9 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.
2.5.10 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.
2.6 CONSTRUCTION PHASE
2.6.1 Commencement
The Construction Phase shall commence on the earlier of:
(1) The Owner's acceptance of the Construction Manager's Guaranteed Maximum Price
proposal, and the Owner's issuance of a Notice to Proceed; or
(2) The Owner's first authorization to the Construction Manager to:
(a) award a subcontract, or
4
2.6.2 Administration
(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, except for
structural steel and pre -cast concrete which will be purchased and delivered to the
Project site by Round Rock Baseball, Inc.
2.6.2.1 The Construction Manager shall publicly advertise (in accordance with Texas Local Government
Code, Section 271.025) and receive bids or proposals from trade contractors or subcontractors for the
performance of all major elements of the Work other than the minor work that may be included in the General
Conditions, all in accordance with Texas Local Government Code. Section 271.118(h). The Construction
Manager may seek to perform portions of the Work itself if it submits its bid or proposal for those portions of
the Work in the same manner as all other trade contractors or subcontractors and if the Owner determines
that the Construction Manager's bid or proposal provides the best value for the Owner. In accordance with
Texas Local Government Code. Section 271.118(1), the Construction Manager and the Owner or its
representative shall review all trade contractor or subcontractor bids or proposals in a manner that does not
disclose the contents of the bid or proposal during the selection process to a person not employed by the
Construction Manager, Engineer, Architect, or Owner. All bids or proposals shall be made public after the
award of the contract or not later than the seventh (7th) day after the date of final selection of bids or
proposals, whichever is later.
2.6.2.2. If the Construction Manager reviews, evaluates, and recommends to the Owner a bid or proposal from
a trade contractor or subcontractor but the Owner requires another bid or proposal to be accepted, the Owner
shall compensate the Construction Manager by a change in price, time, and/or Guaranteed Maximum Price
for any additional cost and 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(j).
2.6.2.3 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated to a special
design shall conform to the payment provisions of paragraphs 6.1.8 and 6.1.9 and shall not be awarded on
the basis of cost plus a fee without the prior written consent of the Owner.
2.6.2.4 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 cause the preparation and distribution of meeting minutes. -
2.6.2.5 Promptly after the Owner's acceptance of the Guaranteed Maximum Price proposal, the Construction
Manager shall prepare a schedule in accordance with these Contract Documents, including the Owner's
occupancy requirements.
2.6.2.6 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.
2.6.2.7 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.
5
2.7 PROFESSIONAL SERVICES
The Construction Manager shall not be required to provide professional services that constitute the practice
of architecture or engineering, unless such services are specifically required by the Contract Documents or
unless the Construction Manager has specifically agreed in writing to provide such services. In such event,
the Construction Manager shall cause services to be performed by appropriately licensed professionals.
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.
3.1.2 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.
3.2 OWNER'S DESIGNATED REPRESENTATIVE
The Owner hereby designates in writing the following representative, in accordance with the General
Conditions:
Larry Madsen
Construction Manager Liaison
City of Round Rock
2008 Enterprise Drive
Round Rock, TX 78664
Telephone: 512- 218 -5552
Facsimile: 512- 218 -5563
Email address: larrym(around- rock.tx.us
3.3 ARCHITECT
3.4 LEGAL REQUIREMENTS
ARTICLE 3
OWNER'S RESPONSIBILITIES
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
B151 -1997 entitled "Abbreviated Standard Form of Agreement Between Owner and Architect" current as of
the date of this Agreement, and as specifically modified by the Owner. The Owner shall authorize and cause
the Architect to provide those Additional Services described in the referenced AIA Document B151-1997
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.
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.
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The Owner shall compensate the Construction Manager for Construction Phase services as follows:
4.1 COMPENSATION
ARTICLE 4
COMPENSATION FOR CONSTRUCTION PHASE SERVICES
4.1.1 For the Construction Manager's performance of the Work, the Owner shall pay the Construction
Manager in current funds the Contract Sum consisting of the Cost of the Work as defined in Article 5 and the
Construction Manager's Fee as follows:
The Construction Manager's Fee shall be two and one -half percent (2.5 %) multiplied by
the total Cost of the Work.
4.1.2 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, 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 Twenty -eight Thousand Five Hundred Fifteen and No/100 Dollars ($28,515.00), based upon
an estimated initial GMP of $1,600,000.00.
4.1.3 The amount which shall be paid to the Construction Manager for all General Conditions that may be
reasonably anticipated for this Project, including but not limited to full -time site supervision and management,
field engineering, field offices, surveying, safety, vehicles, telephone and fax service, delivery services, office
supplies and equipment, furniture, storage buildings, drinking water facilities, sanitary facilities, waste
containers, temporary utilities, temporary water connections, general cleanup, as -built drawings, and
scheduling, shall be One Hundred Eleven Thousand Five Hundred Fifty-five and No /100 Dollars
($111,555.00).
4.2 GUARANTEED MAXIMUM PRICE
4.2.1 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 and subject to other changes
authorized by this Agreement and the associated Contract Documents. Such maximum sum as adjusted by
approved changes is referred to as the Guaranteed Maximum Price.
4.2.2 The Guaranteed Maximum Price may be revised from time to time by additive or deductive change
orders. The Final Guaranteed Maximum Price shall be the Guaranteed Maximum Price as set forth in
Amendment No. 1 plus/minus change orders.
4.2.3 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 Guaranteed Maximum Price.
4.2.4 Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the
Construction Manager without reimbursement by the Owner.
4.3 CHANGES IN THE WORK
4.3.1 If no specific provision is made 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 adjustment
provisions 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.
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4.3.2 If the Substantial Completion Date is extended beyond April 1, 2004 in accordance with this
Agreement and the associated Contract Documents, then the Construction Manager's General Conditions
as referenced in paragraph 4.1.3 shall be equitably adjusted to reflect the extended Project duration.
5.1 COST OF THE WORK
5.1.2 Subcontract Costs
ARTICLE 5
COST OF THE WORK FOR CONSTRUCTION PHASE
5.1.1 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 5.
Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the
subcontracts.
5.1.3 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, but specifically excluding any structural steel and
pre -cast concrete purchased by Round Rock Baseball, Inc. outside the scope of this
Agreement. However, it is expressly understood and agreed by the parties that the
Construction Manager's Fee shall be allowed to include the cost of said structural steel and
pre -cast concrete.
.2 Costs of materials described in the preceding paragraph 5.1.3.1 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.
5.1.4 Other Costs
.1 All other costs incurred in the performance of the Work if and to the extent approved in
advance in writing by the Owner, including costs of Work performed by the Construction
Manager rather than a subcontractor.
5.2 DISCOUNTS, REBATES AND REFUNDS
5.2.1 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, such 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.
5.2.2 Amounts which accrue to the Owner in accordance with the provisions of paragraph 5.2.1 shall be
credited to the Owner as a deduction from the Cost of the Work.
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5.3 ACCOUNTING RECORDS
5.3.1 The Construction Manager shall keep full and detailed accounts and exercise such controls as may
be necessary for properfinancial management under this Agreement; and 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 (3) years after final payment, or for such longer period as may be
required by law.
6.1 PROGRESS PAYMENTS
ARTICLE 6
CONSTRUCTION PHASE
6.1.1 Based upon Applications for Payment submitted to the Architect by the Construction Manager and
Certificates for Payment issued by the Architect, the Owner shall have the obligation to make progress
payments on account of the Contract Sum to the Construction Manager as provided below and elsewhere in
the Contract Documents.
6.1.2 The period covered by each Application for Payment shall be one (1) calendar month ending on the
last day of the month.
6.1.3 Provided an Application for Payment is received by the Architect not later than the thirtieth (30"') day
of a month, the Owner shall make payment to the Construction Manager not later than the thirtieth (30"') day
of the following month. If an Application for Payment is received by the Architect after the application date
fixed herein, payment shall be made by the Owner not later than thirty (30) days after the Architect receives
the Application for Payment.
6.1.4 Following each Application for Payment, 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 (1) progress payments
already received by the Construction Manager; less (2) that portion of those payments attributable to the
Construction Manager's Fee; plus (3) payrolls for the period covered by the present Application for Payment.
6.1.5 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 Owner may require. This schedule shall
be used as a basis for reviewing the Construction Manager's Application for Payment.
6.1.6 Applications for Payment shall show the percentage completion of each portion of the Work as of the
end of the period covered by the Application for Payment. The percentage completion shall be the lesser of
(1) the percentage of that portion of the Work which has actually been completed or (2) the percentage
obtained by dividing (a) the expense which has actually been incurred by the 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.
6.1.7 Subject to other provisions of the Contract Documents, the amount of each progress payment shall
be computed as follows:
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.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, 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 paragraph 4.1.1.
.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 paragraph 6.1.4 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.
6.1.8 Except with the Owner's prior written approval, payments to Subcontractors shall be subject to
retention of not less than five percent (5 %). The Owner and the Construction Manager shall agree upon a
mutually acceptable procedure for review and approval of payments and retention for subcontracts.
6.1.9 Except with the Owner's prior written 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.
6.1.10 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 paragraph 6.1.4 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.
6.2 FINAL PAYMENT
6.2.1 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, 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 thirty (30) days after the issuance of the Architect's final Certificate for Payment, or as follows:
6.2.2 The amount of the final payment shall be calculated as follows:
.1 Take the sum of the Final Guaranteed Maximum Price from paragraph 4.2.
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.2 Subtract amounts, if any, for which the Architect withholds, in whole or in part, a final
Certificate for Payment as provided in 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.
6.2.3 The Owner's accountants will review and report in writing on the Construction Manager's final
accounting within thirty (30) 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 paragraph 62.1 have been met,
the Architect will, within seven (7) 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. The time
periods stated in this paragraph 6.2 shall supersede any others contained in Contract Documents.
6.2.4 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 paragraph 8.1 herein dealing with dispute resolution without
a further decision of the Architect. Unless agreed to otherwise, a demand for mediation of the disputed
amount shall be made by the Construction Manager within sixty (60) 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 sixty-
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.
6.2.5 If, subsequent to final payment and at the Owner's request, the Construction Manager incurs costs
described in paragraph 5.1 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 7
INSURANCE AND BONDS
7.1 The Construction Manager 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, with insurers licensed to do business in
the State of Texas and acceptable to the Owner and under forms of policies satisfactory to the Owner. None
of the requirements contained herein as to types, limits, or the Owner's approval of insurance coverage to be
maintained by the Construction Manager is intended to and shall not in any manner limit, qualify or quantify
the liabilities and obligations assumed by the Construction Manager under the Contract Documents or
otherwise provided by law. In the event of any failure by the Construction Manager to comply with the
provisions of this Article 7, the Owner may, without in any way compromising or waiving any right or remedy
at law or in equity, on notice to the Construction Manager, purchase such insurance, at the Construction
Manager's expense, provided that the Owner shall have no obligation to do so and if the Owner shall do so,
the Construction Manager shall not be relieved of or excused from the obligation to obtain and maintain such
insurance amounts and coverages.
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7.2 INSURANCE
7.2.1 Construction Manager Provided Insurance
7.2.1.1 General Requirements
.1 The Construction Manager shall carry insurance in the types and amounts indicated below
for the duration of the Contract, which shall include items owned by the Owner in the care,
custody and control of the Construction Manager prior to and during construction and
warranty period.
.2 The Construction Manager must complete and forward the required Certificates of Insurance
to the Owner before the Contract is executed as verification of coverage required below. The
Construction Manager shall not commence Work until the required insurance is obtained and
until such insurance has been reviewed by the Owner. Approval of insurance by the Owner
shall not relieve or decrease the liability of the Construction Manager hereunder and shall not
be construed to be a limitation of liability on the part of the Construction Manager. The
Construction Manager must also complete and forward the required Certificates of Insurance
to the Owner whenever a previously identified policy period has expired as verification of
continuing coverage.
.3 The Construction Manager's insurance coverage is to be written by companies licensed to
do business in the State of Texas at the time the policies are issued and shall be written by
companies with A.M. Best ratings of B +VII or better, except for hazardous material insurance
which shall be written by companies with A.M. Best ratings of A- or better.
.4 All endorsements naming the Owner as additional insured, waivers, and notices of
cancellation endorsements as well as the Certificate of Insurance shall indicate: City of
Round Rock, Department of Public Works and Transportation, 2008 Enterprise Drive, Round
Rock, Texas 78664.
.5 The "other" insurance clause shall not apply to the Owner where the Owner is an additional
insured shown on any policy. It is intended that policies required in the Contract, covering
both the Owner and the Construction Manager, shall be considered primary coverage as
applicable.
.6 If insurance policies are not written for amounts specified below, the Construction Manager
shall carry Umbrella or Excess Liability Insurance for any differences in amounts specified.
If Excess Liability Insurance is provided, it shall follow the form of the primary coverage.
.7 The Owner shall be entitled, upon request and without expense, to receive certified copies
of policies and endorsements thereto and may make any reasonable requests for deletion
or revision or modification of particular policy terms, conditions, limitations, or exclusions
except where policy provisions are established by law or regulations binding upon either of
the parties hereto or the underwriter on any such policies.
.8 The Owner reserves the right to review the insurance requirements set forth during the
effective period of this Contract and to make reasonable adjustments to insurance coverage,
limits, and exclusions when deemed necessary and prudent by the Owner based upon
changes in statutory law, court decisions, the claims history of the industry or financial
condition of the insurance company as well as the Construction Manager. If any adjustments
to coverage result in additional premiums, the GMP shall be adjusted to reflect such
additional premiums.
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.9 The Construction Manager shall not cause any insurance to be canceled nor permit any
insurance to lapse during the term of the Contract or as required in the Contract.
.10 The Construction Manager shall be responsible for premiums, deductibles and self - insured
retentions, if any, stated in policies. All deductibles or self- insured retentions shall be
disclosed on the Certificate of Insurance.
.11 The Construction Manager shall provide the Owner thirty (30) days written notice of erosion
of the aggregate limits below occurrence limits for all applicable coverages indicted within the
Contract.
.12 If Owner -owned property is being transported or stored off -site by the Construction Manager,
then the appropriate property policy will be endorsed for transit and storage in an amount
sufficient to protect the Owner's property.
.13 The insurance coverages required under this contract are required minimums and are not
intended to limit the responsibility or liability of the Construction Manager.
7.2.1.2 Business Automobile Liability Insurance
Provide coverage for all owned, non -owned and hired vehicles. The policy shall contain the
following endorsements in favor of the Owner:
a) Waiver of Subrogation endorsement TE 2046A;
b) 30 day Notice of Cancellation endorsement TE 0202A; and
c) Additional Insured endorsement TE 9901 B.
Provide coverage in the following types and amounts:
.1 A minimum combined single limit of $500,000 per occurrence for bodily injury and property
damage. Alternate acceptable limits are $250,000 bodily injury per person, $500,000 bodily
injury per occurrence and at least $100,000 property damage liability each accident.
7.2.1.3 Workers' Compensation and Employers' Liability Insurance
Coverage shall be consistent with statutory benefits outlined in the Texas Workers' Compensation
Act (Section 401). The Construction Manager shall assure compliance with this statute by
submitting two (2) copies of a standard certificate of coverage (e.g. ACCORD form) to the Owner's
Representative for every person providing services on the Project as acceptable proof of coverage.
The required Certificate of Insurance must be presented as evidence of coverage for the
Construction Manager. Workers' Compensation lnsurance coverage written bythe Texas Workers
Compensation Fund is acceptable to the Owner. The Construction Manager's policy shall apply
to the State of Texas and include these endorsements in favor of the Owner:
a) Waiver of Subrogation, form WC 420304; and
b) 30 day Notice of Cancellation, form WC 420601.
The minimum policy limits for Employers' Liability Insurance coverage shall be as follows:
.1 $100,000 bodily injury per accident, $500,000 bodily injury by disease policy limit and
$100,000 bodily injury by disease each employee.
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7.2.1.4 Commercial General Liability Insurance
b) Completed Operations /Products Liability for the duration of the warranty period.
c) Explosion, Collapse and Underground (X, C & U) coverage.
d) Independent Contractors coverage.
e) Aggregate limits of insurance per project, endorsement CG 2503.
f) The Owner listed as an additional insured, endorsement CG 2010.
g) 30 day notice of cancellation in favor of the Owner, endorsement CG 0205.
h) Waiver of Transfer of Recovery Against Others in favor of the Owner, endorsement
CG 2404.
Provide coverages A &B with minimum limits as follows:
.1 A combined bodily injury and property damage limit of $500,000 per occurrence.
7.2.1.5 Builders' Risk Insurance
7.3 BONDS
7.3.1 General
The Policy shall contain the following provisions:
a) Blanket contractual liability coverage for liability assumed under the Contract and
all contracts relative to this Project.
The Construction Manager shall maintain Builders' Risk Insurance or Installation Insurance
on an all risk physical loss form in the Contract Amount. Coverage shall continue until the
Work is accepted by the Owner. The Owner shall be a loss payee on the policy. If off site
storage is permitted, coverage shall include transit and storage in an amount sufficient to
protect property being transported or stored.
.1 Bonds, when required, shall be executed on forms furnished by or acceptable to the Owner.
All bonds signed by an agent must be accompanied by a certified copy of such agent's
authority to act.
.2 If the surety on any bond furnished by the Construction Manager is declared bankrupt or
becomes insolvent or its right to do business is terminated in the State of Texas or it ceases
to meet the requirements of the preceding paragraph, the Construction Manager shall within
ten (10) days thereafter substitute another bond and surety, both of which must be
acceptable to the Owner.
.3 When Performance Bonds and /or Payment Bonds are required, each shall be issued in an
amount of one hundred percent (100 %) of the Contract Amount as security for the faithful
performance and /or payment of all the Construction Manager's obligations under the Contract
Documents. Performance Bonds and Payment Bonds shall be issued by a solvent surety
company authorized to do business in the State of Texas, and shall meet any other
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7.3.2 Performance Bond
7.3.3 Payment Bond
requirements established by law or by the Owner pursuant to applicable law. Any surety duly
authorized to do business in Texas may write Performance and Payment Bonds on a project
without reinsurance to the limit of 10 percent of its capital and surplus. Such a surety must
reinsure any obligations over 10 percent.
.1 If the Contract Amount exceeds $100,000, the Construction Manager shall furnish the Owner
with a Performance Bond in the form set out by the Owner.
.2 If a Performance Bond is required to be furnished, it shall extend for the one (1) year
warranty period.
.1 If the Contract Amount exceeds $25,000, the Construction Manager shall furnish the Owner
with a Payment Bond in the form set out by the Owner.
7.3.4 Delivery of Required Bonds
.1 The Construction Manager shall deliver the required bonds to the Owner at least three (3)
days before the commencement of any Work at the Project site.
8.1 DISPUTE RESOLUTION
ARTICLE 8
MISCELLANEOUS PROVISIONS
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.
8.2 OTHER PROVISIONS
8.2.1 Extent of Contract
This Contract, which includes this Agreement and the other documents incorporated herein by
reference, represents the entire and integrated agreement between the Owner and the Construction Manager
and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement
may be amended only by written instrument signed by both the Owner and Construction Manager. If anything
in any document incorporated into this Agreement is inconsistent with this Agreement, this Agreement shall
govern.
8.2.2 Priority Order
The intent of the Contract Documents is to include all information necessary for the proper execution
and completion of the Work by the Construction Manager. The Contract Documents are complementary and
what is required by one shall be as binding as if required by all. In cases of disagreement, the following order
of precedence shall govern (top item receiving priority of interpretation):
Signed Agreement
Addenda to the Contract Documents
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Special Conditions
Supplemental Conditions
General Conditions
Other Bidding or Proposal Requirements and Contract Forms
Special Provisions to the Standard Technical Specifications
Special Specifications
Standard Technical Specifications
Drawings (figured dimensions shall govern over scaled dimensions)
Project Safety Manual, if applicable.
8.2.3 Ownership and Use of Documents
The Drawings, Specifications and other documents prepared by the Architect, and copies thereof
furnished 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.
8.2.4 Governing Law
This Contract shall be governed by the law of the state where the Project is located, that being Texas,
and venue shall lie in Williamson County, Texas.
8.2.5 Assignment
The Owner and the 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 9
TERMINATION OR SUSPENSION
9.1 TERMINATION PRIOR TO ESTABLISHING GUARANTEED MAXIMUM PRICE
9.1.1 Prior to execution by both parties of Amendment No. 1 establishing the Guaranteed Maximum Price,
the Owner may terminate this Contract at any time without cause, and the Construction Manager may
terminate this Contract if the Work is stopped for a period of thirty (30) consecutive days through no fault of
the Construction Manager or Subcontractors, Sub - subcontractors or their agents or employees or any other
persons or entities performing portions of the Work under direct or indirect contract with the Construction
Manager, for any of the following reasons:
.1 issuance of an order of a court or other public authority having jurisdiction which requires all
Work to be stopped;
.2 an act of government, such as a declaration of national emergency which requires all Work
to be stopped; or
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.3 because the Architect has not issued a Certificate for Payment and has not notified the
Construction Manager of the reason for withholding certification, or because the Owner has
not made payment on a Certificate for Payment within the time stated in the Contract
Documents.
9.1.2 If the Owner or Construction Manager terminates this Contract pursuant to this paragraph 9.1 after
commencement of the Construction Phase, the Construction Manager shall be paid an amount calculated as
follows:
.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 4.1;
.3 Subtract the aggregate of previous payments made by the Owner on account of the
Construction Phase.
9.1.3 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 paragraph 9.1.2.1. 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 9, execute and deliver all such papers and take all such steps, including the legal assignment of such
subcontracts and other contractual rights of the Construction Manager, as the 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.
9.1.3.1 Subcontracts, purchase orders and rental agreement 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 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. - - -
9.2 TERMINATION SUBSEQUENT TO ESTABLISHING GUARANTEED MAXIMUM PRICE
follows:
Subsequent to execution by both parties of Amendment No. 1, the Contract may be terminated as
The Construction Manager may terminate the Contract if, through no act or fault of the Construction
Manager of a Subcontractor, Sub- subcontractor or their agents or employees or any other persons or entities
performing portions of the Work under direct or indirect contract with the Construction Manager, repeated
suspensions, delays or interruptions of the entire Work by the Owner constitutes in the aggregate more than
one hundred percent (100 %) of the total number of days scheduled for completion, or 120 days in any 365 -day
period, whichever is less; or if the Owner fails to pay the Construction Manager as required by this Agreement
and the associated Contract Documents.
9.2.1 In the event of such termination by the Owner, the amount payable to the Construction Manager shall
not exceed the amount the Construction Manager would have been entitled to receive pursuant to paragraphs
9.1.2 and 9.1.3 of this Agreement.
17
9.2.2 In the event of such termination by the Construction Manager, the amount to be paid to the
Construction Manager shall not exceed the amount the Construction Manager would be entitled to receive
under paragraphs 9.1.2 or 9.1.3 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.
9.3 SUSPENSION
9.3.1 The Owner may, without cause, order the Construction Manager in writing to suspend, delay, or
interrupt the Work in whole or in part for such period of time as the Owner may determine.
9.3.2 The Contract Sum shall be adjusted for increases in the cost caused by suspension, delay or
interruption as described in paragraph 9.3.1. Adjustments to the Contract Sum shall include profit. No
adjustment shall be made to the extent:
.1 that performance is, was, or would have been so suspended, delayed, or interrupted by
another cause for which the Construction Manager is responsible; or
.2 that an equitable adjustment is made or denied under another provision of the Contract.
9.3.3 If the Work is so suspended by the Owner as described in this paragraph 9.3, then and in that case
the Guaranteed Maximum Price, if established, shall be increased as provided in paragraph 9.3.2 except that
the term "cost of performance of the Contract" 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 paragraph 4.1 of this
Agreement.
ARTICLE 10
LIQUIDATED DAMAGES
10.1 CONSTRUCTION MANAGER SHALL PAY LIQUIDATED DAMAGES (I) IN THE AMOUNT OF
$1,000.00 PER DAY FOR EACH DAY BEYOND THE DATE ESTABLISHED THEREFOR THAT
THE CONSTRUCTION MANAGER FAILS TO ACHIEVE SUBSTANTIAL COMPLETION, AND
(ii) IN THE AMOUNT OF $20,000.00 FOR EACH SCHEDULED HOME BASEBALL GAME ON
OR AFTER APRIL 1, 2004, FOR WHICH OWNER ANDIOR OWNER'S TENANT ARE UNABLE
TO UTILIZE THE IMPROVEMENTS AND FACILITIES DUE TO THE FAILURE OF
CONSTRUCTION MANAGER TO HAVE ACHIEVED SUBSTANTIAL COMPLETION IN
ACCORDANCE WITH THE CONTRACT.
10.2 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 April 1, 2004, 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 sums specified herein, 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 just 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 Substantial Completion Date. 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.
18
10.3 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 April 1, 2004, 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 Project 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.
ARTICLE 11
WARRANTIES
11.1 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 Final Acceptance
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.
11.1.1 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 only with the approval of the Construction Manager,
which approval shall not be unreasonably withheld.
11.1.2 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 Final
Acceptance 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.
11.1.3 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 Final Acceptance and shall be
in form and content otherwise satisfactory to the Owner.
11.1.4 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 Final Acceptance of the entire Work.
ARTICLE 12
OTHER CONDITIONS
12.1 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
19
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.
12.1.1 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.
12.2 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.
12.3 The Construction Manager will protect the Work, materials and equipment on the Project 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:
By:
Date:
ATTEST:
By:
By:
Date:
.1 Defective design or material supplied by the Owner, or the Owner's separate contractor or
supplier.
.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.
.3 Damage to any items by the Owner or occupant during move -in, including but not limited to
cabinets, appliances, countertops, drywall or plaster surfaces, floor or wall coverings, paint,
plumbing fixtures, faucets, window glass, mirrors, electrical fixtures, and ceramic tile.
THIS AGREEMENT is entered into as of the latest date of the signatories indicated at the
conclusion of this document and all attachments.
OWNER
CITY OF ROUND ROCK, TEXAS
fl —0 3
Christine R. Martinez, City Secretary
CONSTRUCTION MANAGER
CHASCO CONTRACTING
Temple Aday, Pres
20
AMENDMENT NO. 1 TO AGREEMENT BETWEEN
OWNER AND CONSTRUCTION MANAGER AT RISK
Pursuant to Article 2 of the Agreement, dated the 1 day of the month of August, 2003, by and between
the City of Round Rock, Texas (the Owner) and Chasco Contracting (the Construction Manager), for
construction of improvements to the Dell Diamond/United Heritage Facility including construction of six
(6) additional suites; an 850 -seat Home Run Porch with roof, elevated walkway, and signage; and a right
field east entrance gate, including relocation of interactive play area (the Project), the Owner and the
Construction Manager hereby establish the scope of the Project, a Guaranteed Maximum Price, and
Completion Date for the Work as set forth below.
The following exhibits supplement this Agreement:
Article 1
THE WORK
The scope of the Project included in this Amendment, and its Guaranteed Maximum Price, is for the work
in its entirety for the construction of the above - referenced Project.
Article 2
EXHIBITS
Exhibit "A" Construction Manager's Guaranteed Maximum Price Scope Narrative, including
Clarifications, Qualifications and GMP Cost Breakdown
Exhibit "B" Drawings, Specifications and Addenda
Article 3
GUARANTEED MAXIMUM PRICE
The Construction Manager's Guaranteed Maximum Price (the GMP) for the Work, including the estimated
Cost of C.ZQ
the W o defined in Article 5 and the Const ctio, n Manager's F e as *fined in �icl 4 is the
sum of WI - CtQ �C� ��..✓) l LrY . C) b+ u A) 7 r ri.3
This price is for the performance of the Work in accordance with the Contract Documents and any attached
exhibits.
Article 4
COMPLETION DATE
The Substantial Completion Date for the Project is April 1, 2004.
1
OWNER:
By:
ATTEST:
City of Round Rock, Chasco Contracting
Texas
.1 Mayor
Date: 844
By
Date:
Christine R. Martinez, City Secretary
2
CONSTRUCTION MANAGER:
Temple Aday, President
City of Round Rock Contract Forms
Special Conditions Section 00800
SCHEDULE OF SPECIAL CONDITIONS TO
AGREEMENT BETWEEN OWNER AND CONSTRUCTION MANAGER AT RISK
This Schedule of Special Conditions shall supplement and shall be in addition to the "Agreement
Between Owner and Construction Manager at Risk Where Construction Manager at Risk is Also the
Constructor" dated the 1 day of August, 2003, by and between the City of Round Rock and Chasco
Contracting.
1. Texas Local Government Code, Section 271.118 regarding construction manager at risk is
specifically incorporated into the referenced Agreement Between Owner and Construction
Manager at Risk. The provisions of these sections of the Local Government Code shall
govern all aspects of the Agreement where applicable.
2. Within seven (7) days from the date of this Agreement, Construction Manager shall provide
to Owner a schedule of all major elements of the Work to be performed, including items to
be purchased and installed or items for installation such as mechanical equipment and
furniture. The schedule shall include all items necessary to complete the Work in compliance
with this Agreement and the Contract Documents. Included within the schedule shall be the
initial recommendation by Construction Manager on whether these major elements will be
procured by bidding, request for proposals or another competitive method. Also included
within the schedule shall be a recommendation by Construction Manager on how the various
elements of the Work are to be packaged or grouped for purposes of contracting.
3. Within seven (7) days from the date of this Agreement, Construction Manager shall provide
to Owner a description of all Work proposed to be performed by Construction Manager as
a part of the General Conditions Cost and a list of Work on which Construction Manager will
bid and seek to perform Work.
4. Construction Manager shall occupy the position of General Contractor for the purposes of
this Agreement. Whenever the terms General Contractor, Contractor, Construction Manager
or Construction Manager at Risk are referred to in this Agreement or the contract
Documents, they all shall have the same meaning. Construction Manager shall assume the
risk for construction of the Work for the Contract Sum or Guaranteed Maximum Price (GMP)
in the same manner as a General Contractor, and Construction Manager shall provide
consultation to Owner regarding construction during and after the design of the Work.
5. Owner, at Owner's expense, shall provide or contract for inspection services, testing of
construction materials engineering and any verification testing services necessary or required
by Owner for acceptance of the Work by Owner.
6. Construction Manager shall provide to Owner a Guaranteed Maximum Price (GMP) of the
Work as part of this Agreement and the Contract Documents. This GMP shall be provided
for consideration by Owner on or before September 9, 2003. The GMP so supplied will
become the GMP upon approval by Owner.
7. There is only one Guaranteed Maximum Price (GMP) provided in this Agreement and the
Contract Documents. 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 by the stated Completion Date, as same may be
adjusted by other provisions of the Contract Documents.
8. The Contract Sum or GMP may be revised from time to time by change orders which add or
deduct amounts. The final contract sum shall be the Contract Sum or GMP as defined in the
Agreement, adjusted by additions or deductions and approved Change Order.
9. The costs to be paid or reimbursed to Construction Manager as a part of the Contract Sum
or GMP are the following:
A. The General Conditions cost;
B. The amounts of subcontracts and other contracts approved by Construction
Manager and Owner;
C. The amounts, if any, due to Construction Manager pursuant to Owner's direction to
use a subcontractor other than the one recommended by Construction Manager;
D. The cost of premiums for payment and performance bonds for the Work;
E. Permit fees and other governmental fees paid in order to perform the Work; and
F. All other costs incurred in the performance of the Work if and to the extent approved
in advance in writing by Owner, including costs of Work performed by Construction
Manager instead of a subcontractor.
10. The following costs are not included in the Contract Sum or GMP and shall be paid directly
by Owner:
A. Architectural, structural, mechanical, electrical, plumbing, geotechnical, civil and
other engineering fees contracted by Owner;
B. Utility assessments, deposits, connection fees, capital recovery and similar costs or
fees to provide utility service to the Work;
C. Damages caused by weather or Acts of God and not covered by insurance, provided
that Construction Manager has not breached its duty to procure insurance to cover
such casualty.
11. The estimated Cost of the Work shall include Construction Manager's contingency, a sum
established by Construction Manager for Construction Manager's exclusive use to cover
costs arising under paragraph 2.5.2 of the "Agreement Between Owner and Construction
Manager at Risk where Construction Manager at Risk is Also the Constructor" and other
costs which are properly reimbursable as Cost of the Work but not the basis for a Change
Order.
12. The Contract Sum or GMP may include allowances as specifically designated by agreement
between Owner and Construction Manager. If the actual cost of an item covered by an
allowance is more than the allowance, upon approval by Owner, the allowance shall be
increased and the Contract Sum or GMP shall be increased a similar amount. If the cost of
an item covered by the allowance is less than the allowance, the Contract Sum of GMP shall
be decreased by the amount of the difference.
13. Cost savings shall not be shared between Construction Manager and Owner, and cost
savings shall be returned and credited 100% to Owner.
14. Except for contracts of Round Rock Baseball, Inc. for structural steel and pre -cast concrete,
all contracts or subcontracts for performance of any part of the Work or delivery of any
materials in connection with the Work shall be in the name of Construction Manager. All
contracts shall have Construction Manager as a named party, and Owner shall be named in
form and content approved by Owner, and Owner shall require that all insurance provided
under the contract shall name Owner as an additional named insured. The form and content
shall be on standard subcontract forms subject to approval of Owner.
15. All warranties of any type in connection with the Work shall be assigned to and shall be
exercisable by Owner in addition to Construction Manager.
16. Owner shall have the right to require Construction Manager to terminate the contract of any
subcontractor or sub - subcontractor provided that in the event of such termination, provisions
of Local Government Code, Section 271.118(k) shall be applicable. If a subcontractor
defaults in the performance of its portion of the Work or fails to execute a subcontract after
being selected in accordance with this Agreement, then Construction Manager itself may,
without advertising, fulfill the subcontract requirements or select a replacement subcontractor
to fulfill the subcontract requirements. Such action shall be taken only with the approval of
Owner.
17. Owner or Construction Manager may require a subcontractor or materialman to supply
payment and performance bonds in form and content acceptable to Owner and naming
Owner as an additional named insured as part of the contract between Contractor and the
subcontractor or materialman. Owner shall advise Construction Manager of any trades that
Owner will require subcontract bonds from, prior to establishment of Construction Manager
and prior to Construction Manager soliciting proposals or bids.
18. Owner warrants and represents that it has appropriated the sum of $750,000.00 from which
to pay Construction Manager for Construction Manager's Work under this Agreement; and
further, that Owner has additionally received from Round Rock Baseball, Inc. cash and /or
other assurances, reasonably acceptable to Owner, which, when combined, equal at least
the sum of $750,000.00 from which to also pay the sums due to Construction Manager for
Construction Manager's Work under this Agreement.
19. Owner and Construction Manager agree that Owner and its E/A will promptly respond to all
project submission matters issued by Construction Manager. The term "promptly respond"
shall mean a response that is made by Owner not later than five (5) calendar days after the
date of submission by Construction Manager to Owner and its E/A. If no response from
Owner and its E/A is delivered to Construction Manager within the stated time frame, that is,
within five (5) calendar days after submission, then same shall be considered an
unreasonable delay which is beyond the control of Construction Manager, and Construction
Manager shall have additional time equal to the amount of time in excess of five (5) calendar
days to complete the Project, and the completion date will be extended by such number of
days. Such unreasonable delay shall be regarded as a "force majeure."
20. Owner acknowledges that it has been told by Construction Manager and Round Rock
Baseball, Inc. that certain items of structural steel and pre -cast concrete will be ordered, paid
for, and delivered to the Project site completely outside the scope of this Agreement and the
Contract Documents, and Owner interposes no objection to same. Owner acknowledges
that failure on the part of Round Rock Baseball, Inc. to effect a timely delivery of such items
to the Project site shall be regarded as unreasonable delay and shall be regarded as a "force
majeure."
TABLE OF CONTENTS OF GENERAL CONDITIONS
City of Round Rock Contract Forms
General Conditions Section 00700
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 17
8. OWNER'S 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 22
14. PAYMENTS TO CONTRACTOR AND COMPLETION 24
15. SUSPENSION OF WORK AND TERMINATION 28
16. DISPUTE RESOLUTION 29
17. RIGHT TO AUDIT 30
18. MISCELLANEOUS 31
00700 08 /05 /03 Page 1 General Conditions
GENERAL CONDITIONS
FOR USE WITH CONSTRUCTION MANAGER
AT RISK AGREEMENT
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 00550 for Construction Manager at Risk.
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 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.
1.7 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.
1.8 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.
1.9 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.
1.10 Contract Amount - The amount payable by
the OWNER to the CONTRACTOR for completion of
the Work in accordance with the Contract
Documents.
1.11 Contract Documents - Project Manual,
Drawings, Addenda and Change Orders,
1.12 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.
1.13 CONTRACTOR - The individual, firm,
corporation, or other business entity with whom the
OWNER has entered into the Contract, and any
references herein to CONTRACTOR shall mean the
Construction Manager at Risk.
1.14 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.
1.15 Enqineer /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 (E/A). Nothing contained in the
Contract Documents shall create any contractual or
agency relationship between E/A and the
CONTRACTOR.
1.16 Equal - The terms "equal" or "approved
equal" shall have the same meaning.
1.17 Execution Date - Date of last signature of
the parties to the Agreement.
1.18 Field Order - A written order issued by
Owner's Representative which orders minor changes
00700 08/05103 Page 2 General Conditions
in the Work and which does not involve a change in
the Contract Amount or the Contract Time.
1.19 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 is issued by the OWNER.
1.20 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.
1.21 Inspector - The authorized representative of
any regulatory agency that has jurisdiction over any
portion of the Work.
1.22 Legal Holidays
1.22.1 The following are observed by the OWNER:
Holiday Date Observed
New Year's Day January 1
Martin Luther King, Jr.'s Third Monday
Birthday in January
President's Day Third Monday
in February
Memorial Day Last Monday
in May
Independence Day July 4
Labor Day 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
1.22.2 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.
1.22.3 If Christmas Eve falls on a Saturday or a
Sunday, the preceding Friday is observed as the
Christmas Eve holiday.
1.22.4 If Christmas Day falls on a Saturday or a
Sunday, the following Monday is observed as the
Christmas Day holiday.
1.23 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.
1.24 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.
1.25 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.
1.26 Owner's Representative - The designated
representative of the OWNER.
1.27 Partial Occupancy or Use - Use by the
OWNER of a partially 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.
1.28 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.
1.29 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.
1.30 Proposal — Proposal of Offeror, under Local
Government Code §271.113 providing for alternative
project delivery methods, on prescribed forms setting
forth prices for performing the Work described in the
Contract Documents.
1.31 Proposal Documents — The advertisement or
invitation for Proposals, Instruction to Offerors, the
00700 08/05/03 Page 3 General Conditions
Proposal form, the Contract Documents and
Addenda.
1.32 Resident Project Representative - The
authorized representative of E/A who may be
assigned to the site or any part thereof.
1.33 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.
1.34 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.
1.35 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, the
Work has progressed to the point such that all parts
of the Work under consideration are fully operational,
as evidenced by a Certificate of Substantial
Completion approved by the OWNER.
1.36 Subcontractor - An individual, firm, or
corporation having a direct contract with the
CONTRACTOR for the performance of a part of the
Work.
1.37 Sub - subcontractor - A person or entity who
has a direct or indirect contract with a- Subcontractor
to perform a portion of the Work.
1.38 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.
1.39 Supplemental General Conditions - The part
of the Contract Documents which either 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.
1.40 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.
1.41 Time Extension Request - An approved
request for time extension on a form acceptable to
the OWNER.
1.42 Work - The entire completed construction, or
the various separately identifiable parts thereof,
required to be furnished under the Contract
Documents.
1.43 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
in that event a Working Day will be counted for each
such day.
1.44 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
1.43 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.
1.45 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 to the CONTRACTOR's duly
authorized representative, or if such Written Notice is
delivered to or sent by registered or certified mail to
the attention of Owner's Representative or to 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:
Within ten (10) Calendar Days after written
notification of award of Contract, the CONTRACTOR
shall deliver to the OWNER the signed Agreement,
00700 08/05103 Page 4 General Conditions
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
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
00700 08/05/03 Page 5 General Conditions
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.
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
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
00700 08/05/03 Page 6 General Conditions
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 clue
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.
4.2.4 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 shall 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
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.
00700 08/05/03 Page 7 General Conditions
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.
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
00700 08/05/03 Page 8 General Conditions
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.
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.
00700 08/05/03 Page 9 General Conditions
5.3 Other Bond and Insurance Requirements:
For specific bond requirements and additional
insurance requirements, refer to the Supplemental
General Conditions or the Construction Manager at
Risk Agreement, Section 00550.
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 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. If required by Owners
Representative, the CONTRACTOR shall furnish
satisfactory evidence (reports of required tests,
manufacturers certificates of compliance with
material requirements, mill reports, etc.) as to the
kind, quantity and quality of materials and
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.
00700 08/05/03 Page 10 General Conditions
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 publicly advertise
(in accordance with Texas Local Government Code,
Section 271.025) and receive bids or proposals from
trade contractors or subcontractors for the
performance of all major elements of the work other
than the minor work that may be included in the
general conditions, all in accordance with Texas
Local Government Code, Section 271.118(h). The
CONTRACTOR may seek to perform portions of the
work itself if it submits its bid or proposal for those
portions of the work in the same manner as all other
trade contractors or subcontractors and if the
OWNER determines that the CONTRACTOR's bid
or proposal provides the best value for the OWNER.
In accordance with Texas Local Government Code,
Section 271.118(i), the CONTRACTOR and the
OWNER shall review all trade contractor or
subcontractor bids or proposals in a manner that
does not disclose the contents of the bid or proposal
during the selection process to a person not
employed by the CONTRACTOR, Engineer,
Architect, or OWNER. All bids or proposals shall be
made public after the award of the contract or not
later than the seventh (7 day after the date of final
selection of bids or proposals, whichever is later.
If the CONTRACTOR reviews, evaluates, and
recommends to the OWNER a bid or proposal from
a trade contractor or subcontractor but the OWNER
requires another bid or proposal to be accepted, the
OWNER shall compensate the CONTRACTOR by a
change in price, time, or guaranteed maximum cost
for any additional cost and risk that the
CONTRACTOR may incur because of the OWNER's
requirement that another bid or proposal be
accepted.
In addition to meeting the statutory requirements for
advertising under the above - referenced Texas Local
Government Code, Section 271.025, the
CONTRACTOR may, prior to publishing such
advertisement required by the section, confer with
potential subcontractors, suppliers, and bidders to
discuss all or any portion of the Project, including but
not limited to the plans and costs of the Project.
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 EIA 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
00700 08/05/03 Page 12 General Conditions
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.
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. The OWNER shall issue a "Texas Sales
and Use Tax Exemption Certification," thereby
authorizing the CONTRACTOR to use same in the
purchase of materials for the Project.
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,
00700 08/05103 Page 13 General Conditions
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, and
reasonable time shall be defined as within five (5)
calendar days. 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
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
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
be made by a Change Order or Time
Extension Request in accordance with
Article 12.
00700 08/05/03 Page 11 General Conditions
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, EIA, 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,
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
00700 08/05/03
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. All
damage, injury or loss to any property referred to in
this section caused, directly or indirectly, in whole or
in part, by the acts or omissions of the
CONTRACTOR, the OWNER, or E /A, or E /A's
consultant or anyone whose acts any of them may
be liable, shall be determined in accordance with
comparative negligence doctrines. 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
Page 14 General Conditions
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:
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
Owners 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 agree in writing.
6.13 CONTRACTOR's General Warranty
6.13.1 The CONTRACTOR warrants 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 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 acceptance of Work 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
00700 08 /05/03 Page 15 General Conditions
.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:
6.14.1 The CONTRACTOR shall defend, indemnify
and hold harmless the OWNER, EIA, 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
00700 08/05/03
by the OWNER to the CONTRACTOR
under the Contract Documents;
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 in whole or in part 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 and indemnifications 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. All warranties made in, required by or
given in accordance with the Contract Documents
will be for one (1) year from date of Final
Acceptance.
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.
Page 16 General Conditions
6.17 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.
FOR SPECIFIC LIQUIDATED DAMAGES
REQUIREMENTS, REFER TO ARTICLE 10 OF
THE CONSTRUCTION MANAGER AT RISK
AGREEMENT, SECTION 00550.
ARTICLE 7 - OTHER WORK
7.1 The OWNER may perform other work
related to the Project at the site by the OWNER's
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 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 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.
00700 08/05/03 Page 17 General Conditions
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).
ARTICLE 9 - ENGINEER/ARCHITECT'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 is not
for the benefit of the CONTRACTOR, Subcontractor,
Sub - 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.
E/A 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, 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 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:
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
00700 08/05/03 Page 18 General Conditions
represent the OWNER at the site who is not E /A,
E /A's consultant, agent or employee.
9.5 Clarifications and Interpretations:
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
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 for in
paragraph 11.5.
00700 06105103 Page 19 General Conditions
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.
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 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 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.
00700 08/05/03
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 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
Page 20 General Conditions
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
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
"Contractors 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 wit
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.
00700 08/05/03 Page 21 General Conditions
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
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 verges quantity and
determines original quantity is in error by
five percent (5 %) or more.
11.6.6 Right to Verify Information: The
CONTRACTOR agrees that any designated
representative of the OWNER shall have the right to
examine the CONTRACTOR's records to verify the
accuracy and appropriateness of the pricing data
used to price change proposals. Even after a
Change Order Proposal has been approved, the
CONTRACTOR agrees that if the OWNER later
determines the cost and pricing data submitted was
inaccurate, incomplete, not current or not in
compliance with the terms of this Agreement
regarding pricing of change orders, then an
appropriate contract price reduction will be made.
11.6.7 Pricing Information Requirements: The
CONTRACTOR agrees to provide and require all
subcontractors to provide a breakdown of allowable
labor and labor burden cost information as outlined
herein. This information will be used to evaluate the
potential cost of labor and labor burden related to
change order work. It is intended that this
information represent an accurate estimate of the
CONTRACTOR's actual labor and labor burden cost
components. This information is not intended to
establish fixed billing or change order pricing labor
rates. However, at the time change orders are
priced the submitted cost data for labor rates may be
used to price change order work. The accuracy of
any such agreed -upon labor cost components used
to price change orders will be subject to later audit.
Approved change order amounts may be adjusted
later to correct the impact of inaccurate labor cost
00700 08 /05/03
components if the agreed -upon labor cost
components are determined to be inaccurate
ARTICLE 12 - CHANGE OF CONTRACT TIMES
12.1 The OWNER will consider time extension
requests and grant the CONTRACTOR an extension
of time because of:
.1 Changes ordered in the work which
justify additional time.
.2 Force majeure events, meaning Acts of
God, strikes, lockouts or other industrial
disturbances, acts of the public enemy,
orders of any kind of the government of
the United States of America, or of any
state thereof, or any civil or military
authority, insurrections, riots, epidemics,
landslides, lightning, earthquakes, fires,
hurricanes, tornadoes, storms, floods,
washouts, droughts, arrests, restraining
of government and people, civil
disturbances, explosions, nuclear
accidents, wars, part or entire failure of
utilities, shortages of labor, material,
supplies or transportation, or any other
cause not reasonably within the control
of the party claiming inability to perform
due to such cause. Force majeure shall
not, however, include economic
hardship.
.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.
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,
Page 22 General Conditions
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 E/A's
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 Owners
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 If 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 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.
00700 08/05/03 Page 23 General Conditions
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 warranty 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.
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 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
00700 08/05/03 Page 24 General Conditions
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 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 percent (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
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 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 Owners
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
00700 08105/03 Page 25 General Conditions
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;
.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
accordance 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.
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
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.
00700 08/05103 Page 26 General Conditions
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:
The OWNER, at the OWNER's sole option, shall
have the right to take possession of and use any
completed or partially completed portion of the Work
regardless of the time for completing the entire
Work. The OWNER's exercise of such use and
possession shall not be construed to mean that the
OWNER acknowledges that any part of the Work so
possessed and used is substantially complete or that
it is accepted by OWNER, and the OWNER's
exercise of such use and possession shall not
relieve the CONTRACTOR of its responsibility to
complete all Work in accordance with the Contract
Documents.
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.
00700 08/05/03 Page 27 General Conditions
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, Owners 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
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 claims by the
CONTRACTOR against the OWNER,
except claims arising from unsettled
claims, from failure to comply with the
Contract Documents, or from the
OWNER's continuing obligations under
the Contract Documents.
ARTICLE 15 - SUSPENSION OF WORK AND
TERMINATION
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. 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
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
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;
15.1 OWNER May Suspend Work Without .4 if the CONTRACTOR makes fraudulent
Cause and for Convenience: statements;
00700 08105103 Page 28 General Conditions
.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
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
00700 08/05103 Pag
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, 7.5, 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
e 29 General Conditions
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
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 — RIGHT TO AUDIT
17.1 Right to Audit:
Whenever the OWNER enters into any type of
contractual arrangement with the CONTRACTOR,
then the CONTRACTOR's "records" shall upon
reasonable notice be open to inspection and subject
to audit and/or reproduction during normal business
working hours. The OWNER's representative, or an
outside representative engaged by the OWNER,
may perform such audits. The CONTRACTOR shall
maintain all records relating to this Agreement for
four (4) years from the date of final payment under
this Agreement, or until pending litigation has been
completely and fully resolved, whichever occurs
later.
17.1.1 The OWNER shall have the exclusive right
to examine the records of the CONTRACTOR. The
term "records" as referred to herein shall include any
and all information, materials and data of every kind
and character, including without limitation records,
books, papers, documents, contracts, schedules,
commitments, arrangements, notes, daily diaries,
reports, drawings, receipts, vouchers and
memoranda, and any and all other agreements,
sources of information and matters that may, in the
OWNER's judgment, have any bearing on or pertain
to any matters, rights, duties or obligations under or
covered by any contract document. Such records
shall include (hard copy, as well as computer -
readable data if it can be made available), written
policies and procedures, time sheets, payroll
registers, cancelled checks, personnel file data,
correspondence, general ledger entries, and any
other record in the CONTRACTOR's possession
which may have a bearing on matters of interest to
the OWNER in connection with the
CONTRACTOR's dealings with the OWNER (all of
the foregoing are hereinafter referred to as
"records "). In addition, the CONTRACTOR shall
permit interviews of employees as well as agents,
representatives, vendors, subcontractors and other
third parties paid by the CONTRACTOR to the extent
00700 08/05/03 Page 30 General Conditions
necessary to adequately permit evaluation and
verification of the following:
a) The CONTRACTOR's compliance with
contract requirements;
b) The CONTRACTOR's compliance with
the OWNER'S business ethics policies;
and
c) If necessary, the extent of the Work
performed by the CONTRACTOR at the
time of contract termination.
17.1.2 The CONTRACTOR shall require all payees
(examples of payees include subcontractors,
insurance agents, material suppliers, etc.) to comply
with the provisions of this Article 17 by securing the
requirements hereof in a written agreement between
the CONTRACTOR and payee. Such requirements
include a flow -down right of audit provision in
contracts with payees that also apply to
subcontractors and sub - subcontractors, material
suppliers, etc. The CONTRACTOR shall cooperate
fully and shall require Related Parties and all of the
CONTRACTOR's subcontractors to cooperate fully
in furnishing or in making available to the OWNER
from time to time whenever requested, in an
expeditious manner, any and all such information,
materials, and data.
17.1.3 The OWNER's authorized representative or
designee shall have reasonable access to the
CONTRACTOR's facilities, shall be allowed to
interview all current or former employees to discuss
matters pertinent to the performance of this
Agreement, and shall be provided adequate and
appropriate work space in order to conduct audits in
compliance with this Article 17.
17.1.4 If an audit inspection or examination in
accordance with this Article 17 discloses overpricing
or overcharges of any nature by the CONTRACTOR
to the OWNER in excess of one -half of one percent
(.5 %) of the total contract billings, then the
reasonable actual cost of the OWNER's audit shall
be reimbursed to the OWNER by the
CONTRACTOR. Any adjustments and /or payments,
which must be made as a result of any such audit or
inspection of the CONTRACTOR's invoices and /or
records, shall be made within a reasonable amount
of time (not to exceed 90 days) from presentation of
the OWNER's findings to the CONTRACTOR.
17.1.5 The CONTRACTOR shall take reasonable
actions to prevent any actions or conditions which
could result in a conflict with the OWNER's best
interests. These obligations shall apply to the
activities of the CONTRACTOR's employees,
agents, subcontractors, etc. in their dealings and
relations with the OWNER's current and former
employees and their relatives. For example, the
CONTRACTOR's employees, agents or
subcontractors should not make or provide to be
made any employment, gifts, extravagant
entertainment, payments, loans or other
considerations to the OWNER's representatives,
employees or their relatives.
17.1.6 It is also understood and agreed by the
CONTRACTOR that any solicitation of gifts or any
other item of value by anyone representing the
OWNER is to be reported within two (2) business
working days to the OWNER at the following
telephone number: 512- 218 -5401. Failure to report
any such solicitations or offers shall be deemed a
material breach of contract entitling the OWNER to
pursue damages resulting from the failure to comply
with this provision.
ARTICLE 18 - MISCELLANEOUS
18.1 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.
18.2 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.
18.3 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.
18.4 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
00700 08/05/03 Page 31 General Conditions
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.
18.5 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.
18.6 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.
18.7 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 08/05/03 Page 32 General Conditions
August 14, 2003
Mr. Jim Nuse
21 East Main Street
Round Rock, Texas 78664
Dear Jim:
Sincerely,
eid Ryan
President & CEO
pUND ROC
sPRIE TM
(
BASEBALL CLUB
This letter is to certify that Round Rock Baseball, Inc. has entered into contracts to provide labor,
services and materials for the expansion of the Dell Diamond stadium and convention center complex.
Listed below is a break down of these contracts:
1. Alamo Steel — structural and miscellaneous steel - $437,226
2. Chasco Contracting — demolition, earthwork and cast in place concrete work - $234,538
3. Heldenfels Enterprises — pre -cast concrete - $129,000
It is our understanding that the total of these contracts, $800,764, will be submitted in lieu of our cash
contribution of $750,000.
3400 East Palm Valley Blvd. * Round Rock, TX 78664 * (512) 255 - 2255 * (512) 255 - 1558 fax
www.roundrorkexpress.rom
Mayor
Nyle Maxwell
Mayor Pro-tem
Tom Nielson
Council Members
Alan McGraw
Carrie Pitt
Scot Knight
Scott Rhode
Gary Coe
City Manager
James R. Nuse, RE
City Attorney
Stephan L. Sheets
PURPOSE. PASSION. PRO
August 25, 2003
Mr. Reid Ryan, President
Round Rock Baseball, Inc.
P.O. Box 5309
Round Rock, TX 78683
Dear Mr. Ryan:
The Round Rock City Council approved Resolution No. R- 03- 08 -14-
14E4 at their regularly scheduled meeting on August 14, 2003. This
resolution approves a "Construction Manager -at -Risk" agreement and
Amendment No. 1 to the agreement with Chasco Contracting for the
expansion of the Dell Diamond /United Heritage Center.
Enclosed is a copy of the resolution and agreement for your files. If you
have any questions, please do not hesitate to contact Larry Madsen at
218 -5555.
Sherri Monroe
Assistant City Secretary
Enclosure
CITY OF ROUND ROCK Administrative Dept, nl East Main Street • Round Rock, Texas 78664
Phone: 92.258.540o • Fax: 512 218.7097 • www.ci.round- rock.tx.us