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Item 4B
City of Southlake, Texas MEMORANDUM 21 April 2009 TO: Shana Yelverton, City Manager FROM: Jim C. Blagg, Assistant City Manager/Director of Public Safety SUBJECT: Approve a Professional Services Agreement with Lee Lewis Construction, Inc. as Construction Manager at Risk for the DPS North Training Facility Action Requested: Approve a Professional Services Agreement with Lee Lewis Construction, Inc. as Construction Manager at Risk for the DPS North Training Facility Background Information: The City has been working with RPGA Design Group, Inc. with regard to the needs assessment and design of a new DPS North Training facility. The City Council adopted Resolution No. 09-004, that delegates to the City Manager the authority to determine the construction method that is the best value for the City. The Construction Manager at Risk was chosen for this project to obtain the highest level of quality and efficiency. Working with Robert Garza the City sent out Requests for Proposals for Construction Manager at Risk on February 14, 2009. Six responses were received and opened on March 4. On that same day the responses were reviewed and evaluated by a committee made up of myself, Chairman Martin Schelling and Vice-Chair Bob Mundlin along with Chiefs Robert Finn and Michael Starr. The committee selected three firms for follow-up interviews. Those firms were CORE Constriction of Texas, Gallagher Constriction Services and Lee Lewis Construction, Inc. Interviews were conducted by myself, Chairman Schelling and Robert Garza. Following the interviews it was the unanimous opinion of the committee to recommend Lee Lewis Construction, Inc. to the Board for the following reasons: o Lee Lewis Construction, Inc. has become a valuable partner in the construction of DPS HQ o Lee Lewis Constriction, Inc. has worked hand in hand with DPS to ensure a quality project that is on time and in budget o Lee Lewis Construction, Inc. was Founded in 1976 o Most Competitive Hard Bid Contractor o Leader in Texas Building Industry o Repeat Top 400 Contractor -ENRNews Page 2 o Repeat -Top 100 Construction Manager in the United States o Justice Sector Constructed Numerous Financial Considerations: The total cost for Construction Manager at Risk services is approximately $245,000. This is based upon 2.5% of the estimated construction cost of $9,800,000. This fee includes their role in the Pre-Design Phase, Basic Design Phase, Construction Phase and Supplementary Services. Industry standards for these services range between 3% and 6% of total construction costs. Citizen Input/ Board Review: The Crime Control and Prevention District Board of Directors recommended entering into the agreement at its 14 April 2009 meeting on a vote of 5-0. Strategic Link: This item is linked strategically to the Focus Areas of Safety and Security and Quality Development. Additionally, it is linked to the Corporate Objectives of Achieving the Highest Standards of Safety and Security and Investing to Provide and Maintain Quality Public Assets. This facility will assist DPS in training our employees at the highest level as well as providing a higher level of Fire Service to the North part of Southlake. Legal Review: The attached agreement has been reviewed and approved by Kathleen Wells with TOASE. Alternatives: Alternatives that exist are; (1) Seek another Construction Manager at Risk, or (2) Renegotiate attached agreement. Supporting Documents: Standard Form of Agreement between Owner and Construction Manager (Document A121-CMc) Staff Recommendation: Approve a Professional Services Agreement with Lee Lewis Construction, Inc. as Construction Manager at Risk for the DPS North Training Facility SOUTHLAKE TEXAS FEES Lee Lewis Construction, Inc. proposes the following fees. PRE-CONSTRUCTION FEE: $M000 CONSTRUCTION SERVICES FEE: 2.5% Lee Lewis Construction takes no exception to the attached contract and is willing to execute this contract should we be awarded this project. 2008 CONTRACTOR OF THE YEAR-DALLAS AIA 19 Lee Lewis 1©th Largest Builder in the State of Texas TOP 100 Construction Manager-at-Risk. Firms in the US Construction, Inc. Document A121 CMc - 2003 and AGC Document 565 Standard Form of Agreement Between Owner and Construction Manager where the Construction Manager is Also the Constructor AGREEMENT made as of the Fifth day of May in the Year of Two Thousand Nine Un words, indicate dca.y. month aura" Year) ADDITIONS AND DELE' DNS: BETWEEN the Owner: The author of this document has flame and address) added information needed for ,s completion. The author may also have revised the text of the original Andy W ambsganns, Mayor AIA standard form. An Additions and City of Southlake Deletions Report [hat notes added 567 N. Carroll Avenue information as well as revisions to Southlake.TX 76092 the standard rorm text is available from the author and should be and the Construction Manager: reviewed. A vertical line in the left fNla+ne and address) margin of this document indicates where rho author has added WHEREAS. the City of Southlake. Texas (hereinafter referrer] to as "Owner") and necessary information and where ( (hereinafter referred to as "Construction fvfrtnaaer") desire to the author has added to or deleted enter into an Agreement under which Construction Manager will perform services from the original AIA text. relating to the above-named projects on behalf on Owner: This document has important legal cores Wenceis. Consultation with an WHEREAS Owner and Construction Manager have agreed to enter into AIA attorney is encouraged with respect Document A 121CMc-2003 and AGC Document 565, Standard Form of Agreement to its completion or mod ticaation. Between Owner and Construction Manager (2003 edition). as the basic form for that The 1997 Edition of AIA Document Agreement; and A201. General Conditions of the Contract for Construction. is referred WHEREAS certain terns and conditions of that Agreement need to be modified to herein. This Agreement requires to comply with applicable laws and policies affecting Owner and Construction Manager modii;cation R other general in the construction of these projects. Owner and Construction Managcr hereby agree to condilions are uUtized. the following amendments to the Agreement: The Project is: (A'ame, address and l Hqf description) City of Southlake Department of Public Safety North Facility City of Southlake. Tcros Approximately 12 acres at the northeast corner of East Dove (toad and North White Chapel Road. New Public Safety Training Facility for the Department of Public Safety. 'North DPS Training Facility". The Facility will house fire services, training classrooms and training course. below grade firine range in Southlake. Texas. It is currently anticipated that the Facility will be approximately 33.400 square feet. The total project costs are currently projected to be approximately $11.000.000.00 to 12.000.000.00 including site work, FF&E, architectural fees. Construction Manager at Init. AtA Document A121luCLIc 2003 and AGC oocument 665. Copyrlght S 1991 wW M3 by The A rican 1n i,Tute d Architects arrd The .A ,ateTIC-oemal Contractors of America. All ri9htS reserved. WARNINGS: This documeni is 0ralccird by U.S. Csapyr ht Um and Internalional rreatrrs. Unaul" or,red reproduclion or disvibution of This docurnr'nl, or any portion of il, may resell in severe civ,l and vi-ninal pr_nalties, and will be prosecuted to the l ma%imum exicnl possibIc under the law Tits doctrmerd was produced by ALA heat 1$2.03 an 02f=009 untfErOrder N0.100=5897 I which exp,res on 1l17r7010. and is r,al for resale - USer Nolm-, (3961733914) Risk Fees and soft costs The Architect is. (Name and ridtlress) RPGA Design Group. Inc. - Architects 101 S. Jennings Avenue. Suite 1Do Ft. Worth. TX 7610-4 The {owner and Construction Manager agree asset fortb below: Intl AIA Doeumenl A121TTMf; c - 2003 and AGC Document 565. Copyright ; 1991 and 2043 by The American lrs6tule of Ards;lects ar d The Associated General Gontrartorsof Amencs. All rigtlls reserved..'': ARNING, This document is protected by IJ.S 'Copyright LTw and Inowni:iomil Treaties. UniuIhoe rd reprodu Clinn or di%Tratu'linn al this dorur:?rni, re . ) 1 pr-rilon of fl- may resuil in severe c i A and cr miraI panalhes. and -++It be prosecutul Io :,If., f maximum extent possitlie under the law Th s dowme^il was oroduced by ALA se!tware at 18.42:03 on OV1312L`69 uMer Order No.100=5897 1 which sWres on V17.2D10. aaW is nol kK resale. User Notes: (3961733g14) TABLE OF CONTENTS ARTICLE 1 GENERAL PROVISIONS § 1.1 Relationship of the Parties 1.2 General Conditions ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES § 2.1 Preconstruction Phase § 12 Guaranteed Maximum Price Proposal and Contract Time § 2.3 Construction Phase § 2.4 Professional Scrviccs § 2.5 Hazardous Materials ARTICLE 3 OWNER'S RESPONSIBILITIES § 3.1 Information and Services § 3.2 Owner's Designated Representative § 3.3 Architect § 3.4 Legal Requirements ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES § 4.1 Compensation § 4.2 Payments. ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES § 5.1 Compensation § 5.2 Guarantees! Maximum Price 5.3 Changes in the Work ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE § 6.1 Costs to Be Reimbursed § 6.2 Costs Not to Be Reimbursed § 6.3 Discounts. Rebates and Refunds § 6.4 Accounting Records ARTICLE T CONSTRUCTION PRASE § 7.1 Progress Payments § 7.2 Final Payment ARTICLE 8 INSURANCE AND BANDS § 8.1 Insurance Required of the Construction Manager 8.2 Insurance Required of the Owner 8.3 Performance. Bond and Payment Bond ARTICLE 9 MISCELLANEOUS PROVISIONS §9.1 Dispute Resolution § 92 Other Provisions ARTICLE 10 TERMINATION OR SUSPENSION § 10.1 Termination Prior to Establishing Guaranteed Maximum Price § 102 Termination Subsequent to Establishing Guaranteed Maximum Price § 10.3 Suspension ARTICLE 11 OTHER CONDITIONS AND SERVICES brit. ALA Document A12110Cfite - 2003 and AGC Document 565. Copyright Z) 1991 and 2003 by Tr a Amerkan Institute of Architects and The Associated General Cantr=ois of Amefim All rights reserved.. WARMING. This dntument is prolec!ed by IJ S Copyrighl Law and Inlernationol Treatre5 llnsut^..nrrzed reproduclian cr rli.;trrbuti on o t Ihir document, or any portion of it, mAy result in 5p"j~r^ C"'i I and Crlrrtinat pensltte5, Ind Will ue ¢rQgeCl;.lyd 'p ihn_ minimum ef!lenl pactlhlA under the law. This doctumenl war produced by AlA Both la at 18.QMon 02,13.2009 under Ckder No.1000385897 1 which expires on 2'1712010, artd is not fOf resale. ° User Notes: (39617339141 ARTICLE 1 GENERAL PROVISIONS § 11 RELATIONSHIP OF PARTIES The Construction Manager accepts the relationship of trust and confidence established with the Owner by this Agreement. and covenants with the Owner to furnish the Construction Manager's reasonable skill and judgment and to cooperate with the Architect in furthering the interests of the Owner to perform the Work defined in the Contract Documents. in accordance with the Owner's requirements and construction cost limitations. as approved by the Council and set forth in the Contract Documents. The Construction Manager shall furnish construction "ervices (if allowed in accordance with law) administration and rrianagement 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. $ 1.1.1 The Contract Documents consist of this Agreement, as amended, Conditions of the Contract. as amended (General. Supplementary and other Conditions), Drawings. Specifications. Addenda issued prior to execution of this Agreement, all sections of the Project Manual, other documents listed in this Agreement, Modifications issued after execution of this Agreement, the proposal signed by the Construction Manager, the request for proposals, and Contractor's proof of payment and performance bonds and proof of insurance. These form the Contract, and are as fully a part of the Contract as if attached to this Agreement or repeated herein. An enumeration of the Contract Documents. other than Modifications. appears in Article 11. All Amended. General, or Supplementary Conditions to the General Conditions of the Contract are also incorporated herein by reference. Any reference to AIA Documem A201-2007 in this Agreement shall be construed as the AIA Document A201-2007 as amended. § 1.1.2 This Agreement, as amended, represents the entire and integrated agreement between the Owner and the Construction Manager and supersedes all prior negotiations, representatians or agreements. either written or oral. This Agreement may be amended only by written Modification approved by the Owner's City Council, and signed by Owner's authorized representative and Construction Manager. In the event of conflict. terms and conditions contained in the Agreement as amended shall take precedence over terms and conditions contained in the General Conditions, as amended, and the terms and conditions in the General Conditions: as amended, shall take precedence over all other terms and conditions contained in the other Contract Documents. including the Request for Proposal and any addenda thereto, which takes precedence over the Proposal, unless specifically agreed otherwise herein. and the Proposal. § 11.1.3 The City Council, by majority vote, is the only representative of the Owner, an home rule municipality. having the power to enter into a contract, to approve changes in the scope of the Work. to approve and execute a Change Order or Construction Change Directive changing the Guaranteed Maximum Price, or to agree to an extension to the date of Substantial or Final Completion. The Owner designates the following as the individual authorized to sign documents on behalf of the City Council: . or successor. § 1.1.4 The Council designates the authorized representatives identified in Paragraph 3.2 to act on its behalf in other respects. 11-2 GENERAL CONDITIONS For the Construction Phase.. the General Conditions of the contract shall be the AIAi& Document A201 T'M- 1997 , as amended, General Conditions of the Contract for Construction, as amended which is incorporated herein by reference. For the Preconstruction Phase, or in the event that the Preconstruction and Construction Phases proceed concurrently. A201 Tsr- 1997. as amended, shall apply to the Preconstruction Phase only as specifically provided in this Agreement. The term "Contractor" as used in A201 fm-1 997. as amended, shall mean the Construction Manager. ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILMES The Construction Manager shall perform the services described in this article. The services to be provided under Section-, 2.1 and 2.2 constitute the Preeonstruction Phase services. If the Owner and Construction Manager agree, after consultation with the Architect, the Construction Phase may commence before the Precnnstruction Phase is completed. in which case both phases uill proceed concurrently. lnit AIA Dmument A t2 [ "C.lrte - 2003 and AGC Document 565. Copyright r 1991 and 2003 by The American irmtkure of Architects aril The A=m*ted Gierwal ConTractorspt Am,-rica. Art rlghtSreserved.WARNING. This document +s protected by U.S, Copyr,clhI L ai incl Internalianal Treaties. t; r.at,lr, ryruted reproduNion or disirtbulien of this document- or any portion of it, may rosuil in severe Giver and Cris, itPfnne%atpins, and will be prwmcufed fo the l maSitnum extent possrt?l s,nder the tzw Thft doMmeld wag iYoducad by AIA ile twgre et tact on 021t-%WN urcW Order No, 1000395897 9 which elr *m on V1 V2010. and ,s noI Ir resxe User Notes: (395173391s) § 2.1 PRECONSTRUCTION PHASE § 2.9.1 PRELIMINARY EVALUATION The Construction Manager shAl provide a preliminary evaluation of the Owner's program and Project budget requirements, each in terms of the other.. § 2.1.2 CONSULTATION The Construction Manager with the Architect shall jointly :schedule and attend regular meetings with the Owner. The Construction Manager shall consult with the Owner and Architect regarding site use and improvements and Elie selection of materials. building systems and equipment The Construction Manager shall provide recommendations on construction feasibility: actions designed to minimize adverse effects of labor or material shortages: time requirements for procurement. installation and construction completion which shall satisfy Owner's time requiremenmand factors related to construction cost. including estimates of alternative designs or materials. preliminary budgets and possible economies. During the Pre-Construction Phase. the Construction Manager shall review the Contract Document, to ascertain whether the components of the plumbing. electrical and mechanical systems may be constructed without interference with each other. or with the structural or architectural components of the Project, or with existing systems. In the event that conflicts between the systems are discovered. the Construction Manager shall promptly notify the Owner and Architect in writing. § 2.1.2.2 Notwithstanding any provision of the General Conditions of the Contract for Construction to the contrary. the Construction Manager shall not be entitled to additional compensation for any delay or disruption to the Work arising from any conflict between the mechanical. electrical, and plumbing systems with each other, or with the structural or architectural components of the Work, or with existing systems, if such conflicts should have been discovered during the Construction Documents Phase by the Construction Manager through the exercise of reasonable diligence, and the Owner and Architect were not informed of such conflicts as required by Paragraph 2.1.2.1. This provision shall apply only with respect to conflicts appearing in the Drawings and Specifications provided for the Construction Manager's review prior to proposal of a Guaranteed Maximum Price. § 2.1.3 PRELIMINARY PROJECT SCHEDULE When Project requirements described in Section 3.1.1 have been sufficiently identified. the Construction Manager shall prepare. and periodically update, a preliminary Project schedule for the Architect's review and the Owner's approval. The Construction Manager shall coordinate and integrate the preliminary Project schedule rith the services and activities of the Owner. Architect Construction Manager and Construction Manager's subcontractors. As design proceeds, the preliminary Project schedule shall be updated to indicate proposed activity sequences and durations. milestone dates for receipt and approval of pertinent information. subminal of a Guaranteed Maximum Price proposal, preparation and processing of shop drawings and samples. delivery of materials or equipment requiring long-lead-time procurement. Owner's occupancy requirements showing portions of the Project having occupancy priority, proposed date of Substantial Completion and proposed date of Final Completion acceptable to Owner. If Preliminary Project schedule updates indicate that previously approved schedules may not be nwt, the Construction Manager :shall make appropriate recommendations to the Owner and Architect and shall implement necessary corrective action. § 2.1.4 PHASED CONSTRUCTION The Construction Manager shall make recommendations to the Owner and Architect regarding the phased issuance of Drawings and Specifications so a5 to facilitate the proposal of a Guaranteed Maximum Price when the Drawings and Specifications are at least ninety percent complete. The Drawings and Specifications shall be deemed to be ninety percent complete when all elements of the Drawings and Specifications arc not less than ninety percent complete. as mutually agreed by the Architect and the Construction Manager. 21.5 PRELIMINARY COST ESTIMATES § 2.1.5.1 When the Owner has sufficiently identified the Project requirements and the Architect has prepared other basic design criteria, the Construction Manager shall prepare. for the review of the Architect and approval of the Owner. a preliminary cost estimate utilizing area, volume or similar conceptual estimating techniques. § 2.1.5.2 When Schematic Design Documents have been prepared by the Architect and approved by the Owner. the Construction Manager shall prepare, for the review of the Architect and approval of the Owner. a more detailed Init. A1A Document A121 ^"C 2003 and AGC Document 365. Copyright D 1991 and 2003 by The American Nrrstule o1 Arch{t M arld The AS9ociitW Gerteret rroniraclorsetAmerica. All rights reserved. '.,'ARNIING; This document is protected b U.S, CopvrlghI Law and International Treaties. unauthorized 5 reproduction or distribution of this document. or any portion or it. may resell In severe civil and crirrtinar penalties, and will be proseculed ro the milzimum extent possible under the law. Tuts documen! wasprodsreed by AlA sottwere at 18'02:03 on OZ13C,2M under Order Mo.t0003tt6997_l which expires on 24 7t7A10. and is not for resale. User Notas: (3961733914) estimate with supporting data. Daring the preparation of the Design Development Documents, the Construction Manager shall update and refine this estimate at appropriate intervals agreed to by the Owner. Architect and Construction Manager. § 2.1.5.3 When Design Development Documents have been prepared by the Architect and approved by the Owner. the Construction Manager shall prepare a detailed estimate with supporting data for review by the Architect and approval by the Owner. During the preparation of the Construction Documents, the Construction Manager shall update and refine this estimate at appropriate intervals agreed to by the Owner. Architect and Construction Manat:cr. § 2.1.5.4 If any estimate submitted to the Owner exceeds previously approved estimates or the Owner's budget, the Construction Manager shall make appropriate recommendations to the Owner and Architect for cost reductions. including but not limited to, substitution of materials or revisions or alterations to the Design Development Documents or the Construction Documents. to bring the Project within the Owner's budget, but shall not delete necessary components of the Project without Owner's. City Council' consent. In the event that the quality or scope identified in the estimates are unacceptable or exceed the Owner's identified budget, the Construction Manager shall work with the Architect to develop options that arc acceptable to Owner and are within the Owner's budget. § 2.1.8 SUBCONTRACTORS AND SUPPLIERS The Construction Manager shall seek to develop subcontractor interest in the Project and shall furnish to the Owner and Architect for their information a list of possible subcontractors, including suppliers who are to furnish materials or equipment fabricated to a special design, from whom proposals will be requested for each principal portion of the Work. The Architect will promptly reply in writing tea the Construction Manager if the Architect or Owner know of any objection to such subcontractor or supplier. The receipt of such list shall not require the Owner or Architect to investigate the qualifications of proposed subcontractor or suppliers, nor shall it waive the right of the Owner or Architect later to abject to or reject any proposed subcontractor or supplier. § 2.1.7 LONG-LEAD-TIME ITEMS The Construction Manager shall recommend to the Owner and Architect a schedule for procurement of long-lead- time items which will constitute part of the Work as required to meet the Project schedule. If such long-lead-time items are procured by the Owner, they shall be procured on terms and conditions acceptable to the Construction Manager. Upon the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal, all contracts for such items shall be assigned by the Owner to the Construction Manager, who shall accept responsibility for such items as if procured by the Construction Manager. The Construction Manager shall expedite the delivery of long-lead-time items. § 2.1.8 EXTENT OF RESPONSIBILITY The Construction Manager does not warrant or guarantee estimates and schedules except as may be included as pan of the Guaranteed Maximum Price. The recommendations and advice of the Construction Manager concerning design alternati►es and potential cost say ings shall he subject to the review and approval of the Architect, Owmer and the Owner's professional consultants. It is not the Construction Manager's responsibility to ascertain that the Drawings and Specifications arc: in accordance with applicable laws. statutes, ordinances, building codes, rules and regulations. Wos;'e►,er. if the Construction Manager recognizes or reasonably should recogni7e that portions of the Drawings and Specifications are at variance with applicable laws. statutes. ordinances. building codes. rules. or regulations," the Construction Manager shall promptly notify the Architect and Owner in writing. § 2.1.9 EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION The Construction ]Manager shall comply with applicable laws. regulations and special requirements of the Contract Documents regarding equal employment opportunity and affirmative action programs. 2.2 GUARANTEED MAXIMUM PRICE PROPOSAL AND CONTRACT TIME 221 After "When" at the beginning of this paragraph add "all design elements or': after "Specifications are" add "at least 94 percent": after "complete." add "ass determined by the Architect and the Construction Manager.": after "Cost of the Work," and add General Conditions.'. At the end of the existine paragraph add "if any Guaranteed Maximum Price proposal submitted to the Owner exceeds previously approved estimates or the Owner's budget, the Construction Manager shall make appropriate recommendations to the Owner and Architect for cost reductions, init. AIA Document A121 "*'Clrtc - 2003 and AGC Document SW Capyrighl r, 19491 and 2003 by The Ame&_an kr AihAe Br Anc1* cts and The 1ts5aK,xated General ComtrardntaptAmertca. All rights teserved.'NAnNING: This document is protected by U.s. Copyrirlhl Law and tnternat~onal Treaties. Unaurrorac-d reproduclion or dislriburinn of rhir. document. or any portion of 11, may resell in severe civil and criminnl penalVcs. and will be pro secreted ro the l maximum oxtent possibte under tho rn- Thisdacumern wasp roducedbyALA salivirmat t8:0 Mon 07 1,%2004- LrXWOrder NQAD003B5837 I which empires are 211712010. and is MW to( resale- - Usw Notes! (3961733914) including but not limited to, substitution of materials or revisions or alterations to the Construction Documents. to bring the Project within the Owner's budget. but shall not delete necessary components of the Project without Owner's City Council' consent. In the event that the quality or scop` identified in the proposal are unacceptable or exceed the Owner's identified budget, the Construction Manager shall work with the Architect to develop Options that are acceptable to Owner. that are within the Owner's budget. and shat meet the Owner's requirements for dates of Substantial Completion and Final Completion. The Construction Manager may propose separate Guaranteed Maximum Prices for separate Works within the Project, as schedules and efficiencies dictate. The Construction Manager will work Milt the Architect to achieve a Guaranteed Maximum Price that is fully acceptable to Owner and iS within the Owner's budget for the Work and for Ilie Project. § 2.2.2 The Guaranteed Maximum Price will contain a separately identified contingency factor (the "Construction Contingency"). The Construction Contingency is not allocated to any particular item of the Cost of the Work and is established for the Construction lvlanager's use as may be required for costs incurred in the Work from unforeseeable causes, or details which should have been anticipated by the Construction Manager at the time of the Owner's approval of the Guaranteed Maximum Price. Such unforeseeable causes or unanticipated details include. but are not limited to, refinement of details of design within the scope of standards, quality and quantities which are reasonably inferable from the Guaranteed Maximum Price documenss, the correction of minor defects not relating to design, delays in receipt of materials, and additional costs relating to Subcontractor defaults not reimbursed by the Subcontractor's bonding company. The Construction Manager, with Owner's representative's written approval. may utilize the Construction Contingency for any of the above items within the Cost of the Work without the necessity of a Change Order, without constituting a Ch:inge in the Scope of the Work. and without resulting in any change in the Guaranteed Maximum Price. Any unforeseeable causes or unanticipated details which exceed the Construction Contingency shall be borne by the Construction Manager at the Construction Manager's sole risk and expense. All savings will accrue and be available for use, only as detailed above, by the Construction Manager until the Construction Manager's final accounting. In the final accounting. all supporting documentation for all uses of the Construction Contingency shall be provided to Owner. Upon final accounting. all remaining monies in the Construction Contingency Shall accrue to the Owner. The Guaranteed Maximum Price shall also include an Owner's Contingency. which is defined as an allowance established by the Owner for the Owner's exclusive use. Monies from Owner's Contingency may be spent in the discretion of Owner's Representative and without additional City Council approval, but with subsequent notice to Owner's City Council. Any unused Owner's contingency shall accrue to the Owner. If Construction Manager fails to include a specific line item for Owner's contingency in the GMP, then the contingency amount shall be split in half 5V(- shall be the Construction Contingency and 5W} shall be Owner's Contingency. {Paragraph deleted? § 2.2.3 The estimated Cost of the Work shall include the Construction Manager's contingency, a sum established by the Construction Manager for the Construction Manager`s exclusive use to cover costs arising under Section 2.2,2 and other costs which are properly reimbursable as Cost of the Work but not the basis for a Change Order, and the Owner's Contingency, a sum established by the Owner for the Owner's exclusive use to cover costs, per Section 2.2.2. § 2.2.4 BASIS OF GUARANTEED MAXIMUM PRICE The Construction Manager shall include ~ ith the Guaranteed Maximum Price proposal a written statement of its basis. which shall include. .1 A list of the Drawings and Specifications. including all addenda thereto and the Conditions of the Contract, which were used in preparation of the Guaranteed Maximum Price proposal. .2 A list of allowances and a statement of their basis. .3 A list of the clarifications and assumptions made by the Construction Manager in the preparation of the Guaranteed Maximum Price proposal to supplement the information contained in the Drawings and Specifications. ,4 The proposed Guaranteed Maximum Price, including a statement of the estimated cost organized by trade categories, allowances. contingency. and other items and the Fee that comprise the Guaranteed Maximum Price. .5 The Date of Substantial Completion upon which the proposed Guaranteed Maximum Price is based. and a schedule of the Constriction Documents issuance dates upon which the date of Substantial Completion is based. ,6 The Date of Final Completion upon which the proposed Guaranteed Maximum in AIA Document A121"ClWe - 2403 and AGC document 565. Copyright Q 10-91 and 2003 by The Amenran Ir.stnute of Arrldleets arld The ilssoriared General Contrac*m or America. AY fights reserved. WAnNItJG This dociimmnl is protected by U.S. Copyright Law and Internalienil Treaovs. Unauthorized 7 reproduction or distribution of this document, or any portion of 0. may result in severe civil and Criminal penalliM and will r? proseculed to th* f max imumextept possible tinder The law. This doWmentytas pTftmdbyAlAsdowareat1a:02-.03on42.'132009tMerOrder Nr.tno 97 lwhich eVbw on 21 72010. and is not for resale. User Notes: (38gt733914) Price is based. which date shall he acceptable to Owner. 7 The Guaranteed Maximum Price proposal may not be based in any part on any subcontract or material supply contract which would require the Owner to compensate: the Construction Manager on other than a maximum cost basis. § 2.2.5 The Construction Manager shall meet with the Owmcr and Architect to review the Guaranteed Maximum Price proposal and the written statement of its basis. In the event that the Owner or architect discover any inconsistencies or inaccuracies in the information presented. they shall promptly notify the Construction Manager. who shall make appropriate adjustments to the Guaranteed Maximum Price proposal. its basis. or both. As soon as feasible after Architect`s preliminary approval of the Construction Manager's proposed Guaranteed Maximum Price as detailed in Amendment No, 1. the Architect will complete the Amendment forms and return them to the Construction Manager for his review. signature and presentation to Owner's City Council. § 2.2.6 The Owner shall be allowed not less than thirty days after receipt to review and take action on the Construction Manager`s Guaranteed Maximum Price proposal. Unless the Owner. City Council accepts the Guaranteed Maximum Price proposal by Council action 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. Acceptance of the Guaranteed Maximum Price by Owner's City Council at a duly-called Council meeting shall constitute Notice to the Construction Manager of Acceptance of the Guaranteed Maximum Price and Notice to proceed. The Construction Manager will be allowed a maximum of five (5) business days from the date of Owner's Council's approval to obtain the required bond forts and insurance certificates. policies and endorsements and return same to the Architect for review and transmittal to the Owner for Owner's final review. § 2.2.7 Prior to the Owncr's acceptance of the Construction elanagcr's Guaranteed Maximum Price proposal and issuance of a Notice to Proceed. the Construction Manager shall not incur any cost to he reimbursed as part of the frost of the Work. except as the Owner may specifically authorize in writing. § 22.8 Upon acceptance by the Owner's City Council of the Guaranteed Maximum Price proptsal. the City Council Guaranteed Maximum Price and its basis. The date inserted on the first page of Amendment No. I will be the date the Owner's City Council formally accepts the Guaranteed Maximum Price. The Guaranteed Maximum Price shall be subject to additions and deductions only by a change in the Scope of the Work approved by Owner's City Council as provided in the Contract Documents, and the Date of Substantial Completion shall only he subject to adjustment if approved by Owner's City Council as provided in the Contract Documents. § 2.19 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. I. Such revised Draevings and Specifications shall be furnished to the Construction Manager in accordance with schedules agreed to by the Owner. Architect and Construction Manager. The Construction Manager shall promptly notify the Architect and Owner if such revised Drawings and Specifications are inconsistent with the agreed-upon assumptions and clarifications. § 2.2.14 The Guaranteed Maximum Price shall not include in the Cost of the Work any taxes from which Owner is exempt which are enacted at the time the Guaranteed Maximum Price is established. § 2.2.11 The Construction Manager shall diligently prosecute and achieve Substantial and Final Completion of the Entire Work as provided in Amendment No. 1. § 2.3 CONSTRUCTION PHASE § 2.3.1 GENERAL § 2.3.11 The t Paragraphs deleted) unit AIA Document A121 rMCMc - 2003 and AGC Document 565. Copyright 1991 and 2003 by The American Institute of Architects and The Associated Viral C,oniractom of Ame ica. All rights reserved. WARNING This document is prolected by U.S Copyright Law and international Tt. sires. Unautbortzed reproduetiorh or distribution oL Ihis document, or any portion of it, may resu[i in severe civil and crnninal pinna111c%, and will be prosecuted to the maYlmum exlenl possibtp under the Iaw. This documem was produced by ALA software al 16.00,03 on 02113.422009 under CWder N0.10003M97 1 vehich urp+r" an 2!17.2010, and is not for rMJe. User Note (39617339}4) date of commencement of the Construction phase is the first business day after the Construction Manager's r°eccipt of the written Notice to proceed. as provided in § 8.1.2 of AIA Document A201-2007. as. amended and constitutes day zero ("0") of the stated Completion Time for Work under the Amendment. § 2.3.2 ADMINISTRATION § 2.3.2.1. The Construction Manager shall publicly advertise and solicit through competitive purchasing. as required by law, competitive scaled proposals from subcontractors for the performance of all major elements of the Work. § 2.3.12 If during the course of recommending proposals, the Construction Manager recommends to Owner a proposal from subcontractor. but the Owner requires another 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. if such change exists. Construction Manager shall state she additional cost and/or risk in writing and shall provide written proof of same /before Owner compensates Construction Manager. 23.21.1 The Construction Manager shall include the following specific notices in the information to proposers: 1 The succc,4ul proposer's responsibility to provide workers' compensation insurance in accordance with Texas Labor Cade Chapter 406: .2 The successful proposer's responsibility to pay prevailing wages pursuant to Texas Government Code Chapter 2258. .3 A notice of the sales tax exemption for the Work and the procedure for obtaining any required exemption verification or certificate: .4 The notice regarding trench and shoring safety required by Texas Health and Safety Code section 756.412." 2.311.2 Nothing herein shall preclude the Construction Manager from including ether notices required or allowed by law. (Paragraphs deleted) § 2.31.3 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated to a special design shall conrorm to the payment provisions of Sections 7.1.8 and 7.1.9 an d shall not be awarded on the basis of cost plus a fee without the prior consent of the Owner. § 2.3.24 The Construction Manager shall schedule and conduct weekly or otherwise regularly-scheduled meetings at which the Owner. Architect. Construction Manager and appropriate Subcontractors can discuss the status of the Work. The Construction Manager shall prepare and promptly distribute meeting minutes. § 2.3.2.5 Promptly after the Owner's acceptance of the Guaranteed Maximum Price proposal. the Construction Manager shall prepare a schedule in accordance with Section 3,10 of A201 tar-1997, as revised including the Owner's occupancy requirements. § 2,31.6 The Construction Manager shall pmvide 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. at any time during work hours. and shall be present for discussion at the meetings referenced in subparagraph 2.3.2.3 above. § 112.7 The Construction Manager shall develop a system of cost control for the Work. including regular monitoring of actual costs for activities in progress including changes to the Work approved by Owner." and Inlt Ali Document A121 TMCMC 2003 and AGC Documem S6L Copyttght a., 1991 and 2OW by The Arrican Insure of Atchitst is and The Assoc led Gorem] ararWurs of America. All rights reserved. WARNING: This document is Drolecled by U.S. Copyright Law and tnlerna.lionat Treaties Unauthorized reprodur,tion or distribution of this docurrenl, or any porliag OF i1. may resull In severe civif and criminal penalties, and will be proseculedla the f mawimum ezrent possible tinder tine law TN s dotaunerd way produced by AIA softwomat 1$:02:013 on 02x"112009 under Order Ho.10D0385897 1 which elprss on 21117=10. and t4 not For resaly. UM Moray: "117339M estimate,; for uncompleted lacks and proposed changes. The Construction Manager shall identify variance:; bctwecn actual and estimated costs and report the variances, to the Owner and Architect at regular intervals, 23.3 The contractor shall bear full responsibility for design and execution of acceptable trenching and sharing procedures, in accordance with Texas Health and Safety Code section 756.021 et seg.. as further provided in AIA document A201-2007, as amended. To the extent that any portion of the Work requires a trench excavation exceeding five (5) feel in depth, in accordance with Texas Health and Safety Code section 756.023fat. Construction Manager shall fully comply. and shall require any applicable subcontractor to comply. with: § 2.3.4 Trench excavation safety protection shall be a separate pay item, and shall be based on linear feet of trench excavated. Special shoring requirements shall also be a separate pay item. and shall be based on the square feel of shearing used. Said cost shall he included within the Guaranteed Maximum Price. § 2.4 PROFESSIONAL SERVICES Section 3.12. 10 of A20I Tsa-1997, as amended. shall apply to both the Preconstruction and Construction Phases. § 2.5 HAZARDOUS MATERIALS Section 10.3 of A201T`1-1997. as amended. shall apply to both the Preconstruction and Construction Phases. ARTICLE 3 OWNER'S RESPONSIBILITIES § 3.1 INFORMATION AND SERVICES § 3.1.1 The Owner shall provide full information in a timely manner regarding the requirements of the Project. including a program av hich sets forth the Owner's objectives. constraints and criteria, including space requirements and rtelationships, flexibility and expandability requirements, special equipment and systems, and site requirements. (Paragraph deleted) § 3.1.3 The Owner shall establish and update an overall budget for the Project, based on consultation with the Construction Manager and Architect, which shall include reasonable contingencies for changes in the Work and other costs which are the responsibility of the Owner. including the Owner's Contingency as provided in Section 2.2.2 § 3.1.4 STRUCTURAL AND ENVIRONMENTAL TESTS, SURVEYS AND REPORTS In the Preconsumcdon Phase, the Owner shall obtain the following with reasonable promptness and at the Owner's expense. Such documents shall be provided for information only and are not warranted or represented to show the conditions at the Project site accurately. Construction Manager may use the information at its own risk and shall use customary precaution relating to the performance of the Work. Notwithstanding the preceding sentences and the delivery of surveys or other documents and reports by Owner, Construction Manager shall perform all work in such a non-negligent manner so as to avoid damaging any utility lines. cables, pipes. or pipelines on the Property. Contractor shall be responsible for any damage done to such lines, cables, pipes and pipelines ;luring the Work to the extent that a reasonable and prudent Construction Manager would under the same or similar circumstances. § 3.1.4.1 Reports. surveys, drawings and tests concerning the conditions of the site which are required by law, § 3.1.4.2 Surveys describing physical characteristics. legal limitations and utility locations for the site of the Project. and a written legal description of the site. The surveys and legal information shall include. as applicable, grades and lines of sums. alleys. pavements and adjoining property and :structures, adjacent drainage: rights-of-way. restrictions. easements, encroachments,. zoning, deed restrictions, boundaries and contours of the site; locations. dimensions and necessary data pertaining to existing buildings. other improvements and trees: and information concerning available utility services and lines. both public and private, above and below grade.. including inverts and depths. All information on the survey shall be referenced to a project benchmark. § 3.1.4.3 The services of a geotechnical engineer when such services arc reasonably required by the scope of the Work or the Project and are requested by the Construction Manager and approved by the Owner. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests. evaluations of hazardous materials, ground corrosion and resistivity tests. including necessary operations for anticipating subsoil conditions, with reports and appropriate professional recommendations. AIA Doeurnwd A171 ^'CiJlc - 2003 and AGC nceument 565. Copyright T 1991 aM 2003 by The ArnBricsn Instmfee of An:tr x sand The Associated General Init. Oantractom of Ame'ica. All rights reserved. WARMING: This document i5 prolected by U.S. Cclayrighl taw and Internationat Treaties. Unauv!o. raed 10 reproduction or distribwion of 9hrs docurnt:n9. or any pot70n of it, may result in severe civil and cr€minal penallies, and will ba PF05n cuted to the mnX,r Jrn patent Possible under the Paw. p(oduced byAtAso!iwareat 1$:02:03onCZ13.2009 urtderOrder No.i00=5897 i wh,ch eVb on 2;17!2010. and €s not for resale. Usw Notew (396173381s] 1 3.1.4.4 Structural, mechanical, chemical, air and water pollution tesm tests for hazardous materials, and rather laboratorv and environmental tests, inspections and reports which are required by Iaw. 3.1.4.5 The services of other consultants when such services are reasonably required by the scope of the Work or the. Project and arc requested by the Construction Managerand approved by the Owner. § 3.2 OWNER'S DESIGNATED REPRESENTATIVE O%vner`s City Council shall designate one or more authorized representatives to act an its behalf in the day-today administration of the Project, to issue stop work orders, and to authorize expenditures within Owner's contingency. The Owner's City Council designates as its authnrized representatives, the following individuals: § 3.3 ARCHITECT The Construction Manager's scr%ices shall be provided in conjunction with the services of an Architect. The terms of the agreement between the Owner and the Architect shall be available for inspection by the Construction Manager upon request. § 3.5 INSPECTION AND TESTING The Owner shall provide or contract for, independently of the Construction Manager. the inspection services. the testing of construction materials engineering, and the verification testing services necessary for acceptance of the Work by Owner. ( Paragraphs deleted) ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES The Owner shall compensate and make payments to the Construction Manager for Preconstruction Phase services as follows: § 4.1 COMPENSATION § 4.1.1 For the services described in Sections 2.1 and 2.2, the Construction Manager's compensation shall be calculated as follows: I Included in Article S lSrarr b=0 of compensation, whether a stipulated sum, Direct Personnel ETpense schedule nJ fees , arlual cost, err. Include a statement of reimbursable cost items as applicable.) § 4.11.2 Compensation for Preconstruction Phase Services may be equitably adjusted if such services extend beyond Thirty ( 30 ) days from the date of this Agreement or if the originally contemplated :scope of services is significantly modified. § 4.11.3 If compensation is bard on Direct Personnel Expense. Direct Personnel Expense: is defined as the direct salaries of the Construction Manager's personnel engaged in the Project and the portion of the cost of their maatdatory and customary contributions and bcnclits related thereto. such as employment taxes and other statutory employee benefits, insurance, sick leave, holiday's, vacations, pensions and similar contributions and benefits. § 4.2 PAYMENTS 142-1 Payments shall be made monthly following presentation of the Construction Manager's invoice and, where applicable. shall be in proportion to services performed. J 4-U Payments are due and payable Thirty t30) days from the date the Construction Manager's invoice is received by the Owner. Amounts unpaid after the date on which payment is due shall bear interest in accordance with Texas Government Code sechon 2251.025. 5.0(Y,~ per annum In3L AIA Document A121'x'CW -2003 and AGC Document 565. Copyright Z, 199T and 2003 oy The Amertcen Institute of ArChiterAS"Ttra Associated General Contractors 0t Amitmi . All rWs nnerved.'NARNING: This document is proinled by LY_S. Copyrighl Law and international Treaties. Unai.lEhgrl.ed rrpr.oduclion or disTnbutlon of ibis docuncril, or any panron of it, may result in severe cat and cram{nal penalties, anti will be prosecuted to the max,rnurn extent possible under The law. Thtsdopument eras prvnfueed try AlAaoft n"al 18.02:03 on 0243,2009 urder0rder N0.1000385897 t wtKh expires on 2,17 2010. w4 is not for resale. user Naotea: 1396t 733914) l Usurv stars and requirements tcaader the Federal Tnah in Lending Am sinailcar state and local consumer credit laws and either regulations eat the Owner's and Contractor's principal places of business, the location elf the Project and elsewhere inav affect the validity of this provision. ! egal advire should he obtained critic respect to deletions or n7odifacaainns. and also regarding requirements such as written disclosures or waivers.) ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES The Owner shall compensate the Construction Manager for Construction Phase services as follnws: 5.1 COMPENSATION § 5.1.1 For the Construction Manager's, performance of the Work as described in Section 2.3, the Owner shall pay the Construction Manager in current funds the Contract Sum consisting of the Cost of the Work as defined in Article 6 and the Construction Manager's Fee determined as follows: Compensation shall be f 2,. 71 percent t j of the actual Cost of the Work for Work performed pursuant to the Contract, payable as herein provided, provided that the sum of the Cost of Work and the cost of the Construction Manager's 'Pee provided by the contract Document, shall not exceed the Guaranteed Maximum Price. : provided, however, Construction Manager shall not be entitled to a fee on any Work that Construction Manager self performs for the Project: and further provided that no Construction Manager fee shall be paid on the Construction Manager's Contingency or the Owner's Contingency until funds are allocated from those contin..;encies to the Cost of the Work. All charges. if any. for General Conditions shall be included in the Construction Manager's fee. All reimbursement for profit; indirect costs: all telephone bills for all personnel: all facsimile charges: home office personnel and benefits assigned to the Project: home office overhead and expenses; home office personnel relocation: all home office accounting, ,audit, legal. duplication, and data pnrcess'tng fees and expenses; and all travel, meals and lodging shall be deemed to be included in the Construction Manager's fee. (State a lump sum, percentage of actual Cost of the Work or other provision for determining the Construction Manager's Fee, and explain how the Construction Manager's Fee is to be adjusted for changes in the Work.) § 5.2 GUARANTEED MAXIMUM PRICE §521 The Guaranteed Maximum Price for the Project shall be added to this Agreement by the execution of Amendment No. 1, as approved by Owner's City Council. which Amendment No. I shall thereafter be incorporated into this Agreement for all purposes.": 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. I. subject to additions and deductions by changes in the Work a. provided in the Contract Documents. Such maximum sum as. adjusted by approved changes in the Work is referred to in the Contract Documents as the Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Construction Manager without reimbursement by the Owner. Should the Construction Manager complete the Project for less than the Guaranteed Maximum Price, the remaining funds shall be credited to the Owner as a deduction from the Cuaranlced Maximum Price. Construction Manager shall also return to the Owner all unused fonds from any Contingency account as a deduction from the Guaranteed Maximum Price. The Construction Manager shall not participate in any savings. All savings shall be credited to Owner. (Insert specific provisions if the Con.struction Manager is to participate in any .-ravings.) § 5.3 CHANGES IN THE WORK § 5.3.1 Adjustments to the Guaranteed Maximum Price shall be calculated in accordance with Article 7 of A201- 2007. as amended. Adjustments to the Guaranteed Maximum Price on account of Owner-approved changes in the Work subsequent to the execution of Amendment No. I provided, however. that no adjustment to the Guaranteed Maximum Price shall become effective unless approved by Owncr's City Council. I (Paragraphs deleted) Init. AtA Document A121 mCNtc - 2003 and AGC Document 565. Copyright C'r 1991 sold 20W by the ArtitortCan Inslihne o1 A~tti~cts and The Associated General Con tracforsot America. All rights reserved. WARNING: This document is proteCled by U.5 copyright Law and Inlernalronal Trealios Unauthorized 12 reproduction or dislnbution of this dccument. or any portion of it, may result in severe civil and criminal penalties, and will be prose ruled to the t mazimum extent possible under the law. T hridocumeitl proms by altAsoRyrarp aI 18:02:03 on 02,'13.2005 trnder0;d*r N0.100038W7 1 ►Mtieh expkes on 2r 17,20 10, and is not for reaa!e. User Notes, (39617339t4) ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PRASE § 6.1 COSTS TO BE REIMBURSED § 6,1.1 The term "01st of the Work" shall mean cost., necessarily incurred by the Construction Manager in the proper performance of the Work and properly charged against the GMP.": Such costs shall be at rates not higher than those customarily paid at the place of the Project except with prior consent of the Owner. The Cost of the Work shall include only the items set forth in this Article 6. Cost of the Work that exceeds the GMP shall be borne by the Construction Manager. § 6.1.2 LABOR COSTS Wages of construction workers directly employed by the Construction Manager to perform minor on- site work or as otherwise allowed by applicable law the construction of the Work at the site or. with the Owner's prior vmitten agreement performing same. at off'-site workshops. Wages or salaries of the Construction Manager's supervisory and administrative personnel when stationed at the site with the Owner's agreement but only when directly involved in the Project. Classification N/A Name flf it is inrended that the wages or salaries of certain personnel stationed at the Canstruction Manager's principal office or offices other than the site ofre shad! he included in rite Cost (?f the tVork, such personnel shall be identified below.) (Table deleted) .3 Wages and salaries of the Construction Manager's supervisory or administrative personnel engaged, at factories, workshops or on the road, in expediting the production or transportation of materials or equipment required for the Work, but only for that portion of their time required for the Work. A Costs paid or incurred by the Construction Manager for employment-related taxes, insurance. contributions. assessments and benefits required by law or collective bargaining agreements, and. for personnel not covered by such agreements, customary benefits such as sick leave, medical and health benefits, holidays. vacations and pensions. provided that such costs arc based on wages and salaries included in the Cost of the Work under Sections 6.1.2.11 through 6.1.2.3. § 6.1.3 SUBCONTRACT COSTS Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the subcontracts. Any Subcontract Work to be performed by the Construction Manager's own forces on the basis of a bid or proposal submitted by the Construction Manager per Article 2.3.2.1, as amended, shall be treated as Work performed by a Subcontractor under Article 6.1.3. The Construction Manager's compensation for such Subcontract Work performed shall be based on the amount of the bid or proposal submitted by the Construction Manager ftlr such 'Mork, rather than "actual costs' as provided elsewhere in Article 6 of this Agreement. Costs paid to the Construction Manager for such Work shall be treated only as "subcontract costs" for purposes of computing the allowable costs and fees payable to the Construction Manager.. § 6.1.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED CONSTRUCTION Casts. including transportation.. of materials and equipment incorporated or to be incorporated in the completed construction. Costs of materials described in the preceding Section 6.1.4.1 in excess of those actually installed but required to provide reasonable allowance for waste and for spoilage. Unused excess materials. if any. shall be handed over to the Owner at the completion of the Work or, at the Owner's option. shall be sold by the Construction Manager, amount; realized. if any. from such sales shall be credited to the Owner as a deduction from the Cost of the Work. § 6.1.5 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND RELATED ITEMS .1 Actual Costs. including transportation. installation, maintenance, dismantling and removal of materials, supplies. temporary facilities. machinery, equipment, and hand tools not customarily owned by the construction workers, which are provided by the Construction Manager at the site and fully consumed in the performance of the Work. and cast less salvage value on such items if not fully Init. AJA Do=ment A121 ""TMC - 2003 and AGC Document 565. Cnpyrt9h10 191191 and 2003 by The American tnstilule of Artlutects arrd The Associated Genera CamractorS of ArneftL An rights reserved. wARNING: This documenl is protected by U.S. CopyT!9ht law and Inlernati©nal Traalies. UnautForized 1~ reproduce Ion or dlstribtrlton rrt Ihi:S documrnl, or any portion oI u. may result in severe civil and criminal penalties, and will be prosecuted to Iha t maxi rum crtenC pdsslbin undrr the Iaw. TtAli Jocumerit was PmOiced by A1A softlwram at 1$ii2,03 o 07,132M uflder CiiderNo.1p[)03[35997 1 which exp+res on 2+17,2010. and is not for resata - User Notes., {39617399141 consumed. ks hether sold to others or retained by the Construction Manager. Cost for items previously used by the Construction Manager shall mean fair market value. Actual rental charges paid by Construction Manager for, machinery, equipment and hand tools not included in 5, 1.1 and not customarily owned by the Construction Manager prior approval. Costs of removal of debris from the rtitc. Reasonable. necessary and actual Reproduction costs. postage and express delivery charges. of the site at the site office. § 6.1.6 MISCELLANEOUS COSTS .1 That portion directly attributable to this Contract of the actual cost of premiums for insurance and bonds at rates set by the state regulatory authority. (If charges fnr se f insurance are to be included. specify the basis of reimbursement.) (Paragraph deleted) 1 Fees and assessments for the building permit and for other permits, licenses and inspections for which the Construction Manager is required by the Contract Documents to pay. .4 Fees of testing laboratories for tests required by the Contract Documents and paid by the Construction Manager. except those related to noncon forming Work other than that for which payment is permitted by Section 6.1.8.2. Royalties and license fees paid for the use of a particular design, process or product required by the Contract Documents: (Paragraphs deleted) .7 Deposits lost for causes directly resulting from the Owner's actions or decisions. other than the Construction Manager's negligence or failure io fulfill a specific responsibility to the Owner set forth in this Agreerrrcnt. (Paragraphs deleted) § 6.1.7 OTHER COSTS .1 Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the Owner. § 6.1.8 EMERGENCIES AND REPAIRS TO DAMAGED OR [NONCONFORMING WORK The Cost of the Work shall also include costs described in Section 6.1.1 which are incurred by the Construction Manager: A In taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of persons and property. as provided in Section 10.6 of A201 Ti'f-1997. (Paraeraph deleted) § 6.1.9 The costs described in Sections 6. i.I through 6.1.8 shalt be included in the Cost of the Work notwithstanding any provision of AIA or A201 T-K-1997 or other Conditions of the Contract which may require the Construction Manager to pay such costs, unless such costs are excluded by the provisions of Section 6.2 or other provisions of or amendments to this Agreement. § 6.2 COSTS NOT TO BE REIMBURSED § 6.2.1 The Cost of the Work shall not include: .1 Salaries and other compensation of the Construction Manager's personnel stationed at the Construction Managers principal office or offices other than the site office. except as specifically provided in Sections 6.1.2.2 and 6.1.2_.3. .2 Expenses of the Construction Manager's principal office and offices other than the site office-3 Overhead and general expenses, except as may be expressly included in Section 6.1. .4 The Construction Manager's capital expenses, including interest on the Construction Manager`s capital employed for the Work. .5 Rental costs of machinery and equipment. except as specifically provided in Section 6.1.5.2. .6 Except as provided in Section 6,1.8.2, cosm due to the negligence of the Construction Manager or to the failure of the Construction Manger to fulfill a specific responsibility to the Owner set forth in this Agreement. .7 Costs incurred in the performance of Preconstruction Phase Services. Init. AIA Document A121 r'iCMc - 2W3 and AGC Document 585. Copyright 1991 end 2003 by The American fr+slilltle of Arms and The Associated General CorRrad6rs of America. Ali rights reserved. WARNING: This document is protected by US Copyright Law and Internalionai Trealies. Unaulhorued 14 reproduclwon or drstribution of this document, or any portion of it, may result in severe civil and crtminal Nnallies, and will be proseculed Coo the t maximu " e: lent poss,bin. under the 4w, Thisddcumeni was produced by AIA software at IS-.02M on 02132009 vriderorder tao.10003aW7 1 teh-ett expires on 2.172010, ertd is not for male. user Notes: t3961733g14) .B Except as provided in Section 6.1.7.1. any cost not specifically and expressly described in Section 6.1. .9 Costs which would cause the Guaranteed Maximum Price to be exceeded .14 Delay damages or claims." 11 Storage costs, unless with prior written Owner approval. 12 All costs intentionally deleted in § 6.1 above. including all subsections. § 6.3 DISCOUNTS, REBATES AND REFUNDS §6.3.1 Construction Manager shall take advantage of all available discounts, rebates and refunds for supplies. materials and equipment connected with the Work and which conform to the Contract Document-. which discounts, rebates and refunds shall accrue to the benefit of the Owner. 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 the Owner has deposited funds with the Construction Manager with which to make payments. otherwise, cash discounts shall accrue to the Construction Manager. Trade discounts. rebates, refunds and amounts received from sales of surplus materials and equipment shalt accrue to the Owner. and the Construction Manager shall make provisions so that they can he secured. § 6.3.2 Amounts which accrue to the Owner in accordance with the provisions of Section 6.3. 1 shall be credited to the Owner as a deduction from the Cost of the Work, § 6.4 ACCOUNTING RECORDS § 6.4,1 The Construction Manager shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Contract; the accounting and control systems shall be satisfactory to the Owner. The Owner and the Owner`s accountants or other representatives shall be afforded access to the Construction Manager's records. bmiks, correspondence, instructions, drawings. rc"-ipts, subcontracts. purchase orders. vouchers, memoranda and other data relating to this Project. and the Construction Manager shall preserve these for a period of twelve years after the date of Final Completion, or for such longer period as may be required by law. ARTICLE 7 CONSTRUCTION PHASE (Paragraph deleted) § 7.1 PROGRESS PAYMENTS § 7.1.1 Based upon Applications for Payment submitted to the Architect by the Construction Manager and Certificates for Payment issued by the Architects the Owner shall make progress payments on account of the Contract Sum to the Construction Mam-wer as provided below and elsewhere in the Contract Documents. § 7.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the mgmth, or as folloN;N- § 7.11.3. The Construction Manager shall submit monthly Applications for payment to both the Architect and Program Manager. if applicable, on AIA Form G702 for approval. Continuation sheets shall be submitted on AIA Form. G703. If the Architect and Program Manager approve the application, then they shall submit a Certificate for Payment to the Owner. The Architect and Program Manager may require any additional information deemed necetitiary and appropriate to substantiate the Application for Payment. Materials that are verified to be on the jobsite or other approved location for use in the Project may also be incorporated into the Application for Payment. The Architect and Program Manager shall have seven (7) days from date of receipt from the Construction Manager of an Application for Payment to approve or reject all or any part of the Application for Payment. The Owner shall pay the undisputed amounts certified by the Architect and Program Manager to the Construction Manager within forty-five (45) days if Owner's City Council meets once a month. and thirty(30) days, if Owner's City Council meets twice a month, of receipt of the Certificate for Payment from the Architect and Program Manager, unless otherwise provided in the Contract Documents. Undisputed amounts unpaid after the date on which payment is due shalt bear interest pursuant to Texas Government Cc& section 2251.0 5. Inlt AIA Document A121 T~CMe - 30143 and AtlC 0oo ment 565. Copyright .a 1991 and 2443 by The American Instilute of Architects and The Associated Ce,erdl Comactors of Arnerka_ All rights reserved, WARWIG: this document is protecled by La-S_ r opyrighl Law and International Treaties. Urlaulhoraed 15 repraduclion or di,i?nbut+on of !his document, or any portion of ll,. may result in severe Civil and Criminal penalties., and wi[I be prosaculed to the maximum extent po5silAo under the law. Thisdowrne u was prooiced by Al4softwarrs at 7$;02:00 on 42'132009 ~Order No.1 000 38589 7 t vAl)& o pirga on 2°17:2014, and is not fix resal9P. user Notew (39161733914) § 7.1AF-ach Application for Payment shall also include a list, with backup data, of how each payment shall be spent, including a list detailing which subcontractors and suppliers will be paid out of funds paid by the Owner and the amount of such payments to subcontractors and suppliers, and in the next payment cycle, proof of each payment to Construction Manager's subcontractors and suppliers after payment. (Paragraphs deleted) § 7.1.5 Each Application for Payment shall be based upon the most recent schedule of values submitted by the Construction Manager in accordance with the Contract Documents. The schedule of values less any unused Owner's contingency and unused Construction Manager's contingency.- %hall allocate the entire Guaranteed Maximum Price among the various portions of the Work, except that the Construction Manager's Fee shall he shown as a single separate item. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Architect less any untised Owner's contingency and unused Construction Manger's contingency," may require. This schedule, unless objected to by the Architect and Program Manager, if applicable. shall be used as a basis for reviewing the Construction Manager's Applications for Payment. § 7.1.8 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 percentage of that portion of the Work which has actually been completed, § 7.1.7 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: .1 Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of Values. Pearling final determination of cost to the Owner of changes in the Work, amounts not in dispute may be included as provided in Article 7 AIA Document of A20IT-m-1997. as amended., 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 (honer, suitably stored off the site at a location agreed upon in writing. .3 Add the Construction Manager's Fee.. The Construction Managers fee shall be computed upon the Cost of the Work described in the two preceding Sections at the rate stated in Section 5. 1.1 or, if the Construction Managers Fee is stated as a Fixed sum in that Section, shrill be an amount which bears the same ratio to that fixed-sum Fee as the Cost of the work in the two preceding Sections bears toa reasonable estimate of the probable Cost of the Work upon its completion, .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 Section 7,1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the Ovmcr's accountants or other representatives in such documentation. .S Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Section 9.5 of AIA Document A201 1m- 1947 as amended. .7 Subtract retainage of percent (_''r) of the remaining amount, including the Construction Manager's Fee, of the progress payment. (Nore: Under Texas law. if the retainage exceeds five pemetu, then the retainage shall be deposited in as interest-bearing account. and the interest earned an the retainage shall be paid to the Construction Manager ispon completion of the Work. Texas Gnlemment Code section 2252.032.) .8 The progress payment amount determined in accordance with this Section shall be further modified under the following circumstances: .a Add, if Final Completion of the Work is thereafter materially delayed by Owner or Owner's agents through no fault of the Construction Manager. any additional amounts payable in accordance with Section 9.10.3 of AiA Document A201-2007, as amended. .b if Owner is entitled to deduct liquidated damages, or any other damages or amounts provided in the Contract Documents, including clean-up fees, theft Owner shall be entitled to deduct such liquidated damages. amounts and fees due Construction Manager at any time. .c If Construction Manager fails or refuses to complete the Work. or has unsettled claims with Owner, then any final payment to Construction Manager shall he subject to deduction for such Init AIA Document At 21 ° C61e - 2003 and AGC Document 565, Copyright T, f 991 VW ZOOS by The American institute of Architevs and The Associated General COnlractws of Amer" All rights reserved, ivARNiNG: This document :s protected by U.S. Copyright Lirr and Internalianal Trealres. Unaulharized 16 reproduction or disinbullon of this document. or any portion Of It. may result in Severe civil and Crimtnml penatlle5, and wt[I be prosecuted lathe 1 rnazf mltrn ex IanI possible under the Raw. This document was produced by AiA software at 18:02:03 00 02it3:2009 under eider No. 1000385897? rM111C1F expires on 217,20M and is net let resale. - user Holes: (3961733914) amounts as the Architect and Program Manager. if applicable. shall determine as the coact for completion incomplete Work and the value of unsettled claims. § 7.1.8 Except with the Owner's prior written approval. payments it) Suhc:nntractors shall be .tibjcct to retention of not less than ( "fen ) percent (10.00 0. The Owner and the Construction Nlanager shall agree upon a mutually acceptable procedure for review and approval of payments and retention for subcontracts. § 7.1.9 Except with the Owner'` prior written approval or as otherwise provided in Section 93.2 of the AIA Document ,A101-2007. as amended, the Construction. Manager shall not snake advance payments to supplier., for material; or equipment which have not been delivered and stored at the site. (Paragraph deleted) § 7.2 FINAL PAYMENT § 7,2.1 Final payment shall be made by the Owner to the Construction Manager when 11) the Contract has been fully performed by the Construction Manager including the Construction Manager's responsibility to correct nonconforming Work, , and except for the Construction Managers responsibility": such final payment shall he made by the Owner not more than 30 days after the issuance of the Architect's Final Certificate for Payment. or as follows to satisfy other requirements. if any. which which Owner agrees in writing necessarily survive final payment. (2) a final Application for Payment and a final accounting for the Cost of the Work have been submitted and cenified by the Construction Manager and reviewed and approved by the Owner's accountants or other representations: (3) a final Certificate for Payment has then been issued by the Architect and approved by the Progr in Manager: (4) Construction Manager has provided all documents required by Section 3.5.8 of AIA Document A20ITm-2007.a: amended: and (5) Owner's City Council has voted to accept the Work and approved Final Payment. § TZ2 The amount of the final payment shall be calculated as follows: .1 Take the sum of the Cost of the Work substantiated by the Construction Manager's final accounting and the Construction Manager's Fee, but not more than the Guaranteed %faximum Price. .2 Subtract amounts. if any, for which the Architect or Owner disputes. refuses or withholds payment. including liquidated damages. if any. .3 Subtract the aggregate of previous payments made by the Owner.. :A The progreNs payment amount determined in accordance with this Section shall be further micidifed under the following circumstances: .a Add. if final completion of the Work is thereafter materially delayed by Owner or Owner's agents through no fault of the Construction Manager, any additional amounts payable in accordance with Section 9.10.3 of AIA Document A201-2007. as amended. .b If Owner is entitled to deduct liquidated damages. or any other damages or amount--, provided in the Contract Documents, including clean-up fees, then Owner shall be entitled to deduct such liquidated damages. atrtounts and fees due Corastrttction Manager at any time, c if Construction Manager fails or refuses to complete the Work. or has unsettled claim with Owner, any final payment to Construction Manager shall be subject to deduction for such amounts as the Architect and Program Manager. if applicable, shall determine as the cost for completing incomplete Work and the value of unsettled claims. If the aggregate of previous payments made by the Owner exceeds the amount due the Construction Manager. the Ccrnatruction Manager shall reimburse the di&rcnc+e to the Owner. toil AIA ftcument A1217*Ctde - 2003 and AtiC Document 565. Copyright Q 199t and 2003 by The American Instoutp at 9rtclhireds and The AssoGated Gerwal Contractors of Amefta. All rights reserved. WARNInG: This document is protecled by U,S. Copyright Law and international Trealres. Urraultrorired 17 reproduction or distribution of this document. or any portion of it. may result in severe civil and criminal penalliies. and witl tae prosecuted to thee J maximum exlenl possible under the low. Thisdocumenj was produced bryAlA solrware at it IM03 as 02.'l3•.2009 under Order No.l0t10385897 1 which expires on 2,'17:2010. and is not for resale. User Mates: t3961733914I § 7.2.3 The Owner *s accountants or other representatives will review and report in writing tin the Construction Managers final accounting within 30 days after delivery of the final accounting to the Architect by the Construction Manager. Based upon such Cost of the'V4'ork as the Owner's accountants report to be substantiated by the Construction Manager's final accounting, and provided the other conditions of Section 7.2.1 have been met, the Architect will, within ;even days,ifter receipt of the written report of the Owner's accountants or other representatives, either issue to the Owner a filial Certificate for Payment with a copy to the Construction Manager or notify the Construction Manager and Owner in writing of the Architect's reasons for withholding a certificate as provided in Section 9.5.1 of A201 Tea-1997 ati amended . The time periods stated in this Section 7.2 supersede those staled in Section 9.4.1 of A201 7`11-1997 as amended. § 7.2.41f the Owner's accountants other representatives report the Cost of the Work as substantiated by the Construction Manager's final accounting to be less than claimed by the Construction Manager. the Construction Manager shall be entitled to proceed in accordance with Article 9 without a further decision of the Architect. Unless agreed to otherwise. a demand for mediation other dispute resolution provided in the Contract Documents of the disputed amount shall be made by the Construction Manager within30ays after the Construction Manager's receipt of a copy of the Architect's final Certificate for Payment. Failure to make such demand within this ail-day period shall result in the substantiated amount reported by the Owner's accountants becoming binding on the. Construction Manager. Pending a final resolution of the disputed amount. the Owner shall pay the Construction Manager the amount certified in the Architect's final Certificate for Payment.. § 7.2.5 If, subsequent to final payment and at the Owner's prior written request, the Construction Manager incurs costs described in Section 6.1 that are"not excluded by Section 6.2 (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. ARTICLES INSURANCE AND BONDS § 7.3 DAMAGES § 73.1 Time is of the essence in all phases of the Work. It is specifically understood and aed by and between Owner and Construction Manager that time is of the essence in the Substantial Completion and Final Completion of the Project and Owner shall sustain said deadlines. Such actual and direct damages are. and will continue to be. impracticable and extremely difficult to determine. Execution of this Agreement tinder these specifications shall constitute agreement by Owner and Contractor that the amounts stated below are the minimum value of the casts and actual and direct damages caused by failure of Contractor to substantially complete the work ithin the allotted times, that such sums are liquidated direct damn es and shall not be construed as a penalty. and that such surfs may be deducted from payments clue Contractor if such delay occurs. It is expressly underuood that the said sutra per day is agreed upon as a fair estimate of the pecuniary damages which will be sustained by dlc Owner in the event that the Work is not completed within the agreed time, or within the extended time. if any, otherwise provided for herein. Said sum shall be considered as liquidated damages only and in no sense shall be considered a penalty. said damages being caused by additional compensation to personnel. for loss of interest on money. and other miscellaneous increased costs. all of which are difficult to exactly ascertain. Failure to substantially complete the Work within the designated period, or as it may be extended. shall be construed as a breach of this Agreement. § 7.3.2 It is expressly agreed as a part of the consideration inducing the Owner to execute this Agreement that the Owner may deduct front the Final Payment made to the Construction Manager a sum equal to S 1000.00 per day for each and every additional calendar day beyond the agreed date of Substantial Completion. § 7,.3.3 Timely 'F'inal Completion is an essential condition of this Agreement. Construction Manager agrees to achieve Final Completion of the Agreement within 30 days of the designated or extended date of Substantial Completion. Oww7ter and Contractor agree that should Construction Manager fail to achieve Final Completion of the Agreement by the deadline. Owner shall continue to be damaged to a greater degree by such delay. Construction Manager and Owner agree that the amount of liquidates] damages for each calendar day Final Completion is delayed beyond the date set for Final Completion shall be the sum of 51000.00 per day. Owner may deduct form the Final Payment made to Construction Manager. or, if sufficient funds are not available. then Construction Manager shall pay Owner the amounts specified per day for each and every calendar day the breach continues after the deadline for Final Completion of the Work. AiA Document A121TMCMc - 20Q3 and AGC t)ecumenl $0. Copyright ~ 1991 and 200:3 by The AmencaIrt tnsutute a? Architects and The AssocLated General t;onlractors of America. AN tights reserved, WARWNG: This dotumerrt Is prol'ec;ed by U.S. Copyrigha Law and International Treaties- Unauthoraed i l3 reproduction or dislrihutian Of this dr~curneni. or any porlion or it. may resull in severe civil kind criminal penallies, and wit? be prosecuted to the I maximum extent possibir under tht taur.Thsdocument wasproduced byALA softw" of 10:0203cn 02r1312009underOrder No.100038W97 1 which expires on 2117,20to. and is riot to resale. Uw Notes, (3961-333914) § 7-3.4 Such damages shall be in addition to, and not in lieu of, any other right or remedies Owner may have against Construction Manager for failure to timely achieve Final Completion. If the Work is not finally completed by the time stated in the Agreement, or as extended. no payments for Work completed beyond that time shall be made until the Project reaches Final Completion." § 73.1 Time is of the essence in all phases of the Work. It is specifically understood and agreed by and between Owner and Construction Manager that time is of the essence in the Substantial Completion and Final Completion of the Project and Owner shall sustain § 8.1 INSURANCE REQUIRED OF THE CONSTRUCTION MANAGER During both phases of the Project. the Construction Manager shall purchase and maintain insurance as set forth in Section 11.1 of A201TSr-1997. Such insurance shall be written for not less than the set forth in AIA Document A201-2007, as :upended limits. or greater if required by law: (Paragraphs deleted) § 8.2 INSURANCE REQUIRED OF THE OWNER Tice Owner may purchase and maintain liability and property insurance. including waivers of subrogation, asset forth in Sections 11.2 and 11.4 of A201T*I-1997. Such insurance to protect Owner. as provided in Article I i of AIA Document A201-2007, as amended: (Paragraphs deleted) § 0.3 PERFORMANCE BOND AND PAYMENT BOND § 8.3,1 Prior to performing the Work, the Construction Manager shall provide separate performance and payment bonds in accordance with AIA Document A201-20(}7. Section 11.5. as amended. (Paragraph deleted) ARTICLE 9 MISCELLANEOUS PROVISIONS § 9.1 DISPUTE RESOLUTION §'9.1.1 During both the. Preconstruction and Construction Phases, Claims. disputes or other matters in question between the parties to this Agreement shall be resolved as provided in Article 4 of A201 T,1-2007 as amended except that. during the Pr construction Phase. no decision by the Architect shall be a condition precedent to mediation, litigation, or other means of dispute resolution. Notwithstanding anything to the contrary in this Agreement, or in any document forming a part hereof, there shall be no mandatory arbitration for any dispute arising hereunder. § 91 OTHER PROVISIONS § 91.1 Unless otherwise noted, the terms used in this Agreement shall have the same meaning as those in A201 IM- 2007 as amended. § 9,2.2 EXTENT OF CONTRACT This Contract, which includes this Agreement and the other documents incorporated herein by reference, represents the entire and integrated agreement between the Owner and 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. 1f any`thing in any document incorporated into this Agreement is inconsistent with this Agreement. this Agreement shall govern. If any portion of this Agreement is determined to be invalid, unenforceable, or void. then that portion shall be severed, and all other portions of this Agreement shall remain in full force and effect. §'923 OWNERSHIP AND USE OF DOCUMENTS Article 1.6 of A2©1 T31--2007 as amended. shall apply to both the Preconstruction and Construction Phases. § 91.4 GOVERNING LAW The Contract shall be governed by the State of Texas. and mandatory and exclusive venue for any dispute shall be in state district court in the county in which the Owner's main administrative office is located. As a material IniL AEA Doeumenl A1121!0 CAtt -2003 and AGC Document 50-Copyr19ta1 C 1991 trod 2003 by The Anmerican Insih to of ArOirects arrt The Associated Genera! ContWTors of Amerk& An rights reserved. WARNING: This document is protected by U.5 Copyright Law and International Treaties. Unauthorized 19 reproduclioOn or distribution of Ihis document, or any portion of it. may result in severe civil and Criminal penalties, and will be prosecuted to the maximum extent possible under the law. This dccumerit *a produced ty AIA software at 18243 on 021112009 under Order N o.1000365397 1 which expires on 2 17-2010, arad is opt for resale. User Notm f39517339114) consideration of the making of this Contract, the modifications to this Contract shall not be construed again it the maker of said modification-,. § 9.2.5 ASSIGNMENT Once this Contract is accepted and signed by Owner's City Council. the Owner and Construction Manager respectively bind themselves, their partners, successors. assigns and legal representatives to the other party hereto and to partners, successors. assigns and legal representatives of such other party in respect to covenants. agreements and obligations contained in the Contract. Documents. Except as provided in Section 13.2.2 of A20ITS1-2007 as amended,. neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent. that party shall nevertheless remain legally responsible for all obligations under the Contract. ARTICLE 10 TERMINATION OR SUSPENSION § 10.1 TERMINATION PRIOR TO ESTABLISHING GUARANTEED MAXIMUM PRICE § 10.1.1 Prior to execution by both parties of Amendment No. I establishing the Guaranteed Maximum Price, the Owner may terminate this Contract at any time without cause, and the Construction Manager may terminate this Contract for any of the reasons described in Section 14.1.1. 14.1.2. and 14.1.4 of A201 nl-2(x)7, as amended. § 10.1.2 If the Owner or Construction Manager terminates this Contract pursuant to this Section I O I prior to commencement of the Construction Phase, the Construction Manager shall be equitably compew4 ated for Preconstrucdon Phase Services performed prior to receipt of notice of termination: provided, however, that the compensation for such services shall not exceed the compensation set forth in Section 4.1.1. § 10.1.3 If the Owner or Construction Manager terminates this Contract pursuant to this Section 10.1 after commencement of the Construction Phase, the Construction Manager shall, in addition to the compensation provided in Section 10.1.2, be paid an amount calculated as folio,%s: .1 Take the Cost of the Work incurred by the Construction Manager. .2 Add [lie Construction Manager's Fee computed upon the Cost of the Work to the date of termination at the rate stated in Section 5.1 or. if the Construction Manager's Fee is stated as a fixed sum in that Section. an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work at the time of termination bears to a reasonable estimate of the probable Cost of the Work upon its completion. .3 Subtract the aggregate of previous payments made by the Owner on account of the Construction Phase. The Owner shall also pay the Construction Manager fair compensation. either by purchase or rental at the election of the Owner. for any equipment owned by the Construction Manager L%hich the Owner elects to retain and which is not otherwise included in the Cost of the Work under Section 10.1.3.1. To the extent that the Owner elects to lake legal assignment (if subcontracts and purchase orders (including rental agrocnrents), the Construction Manager shall. as a condition cif receiving the payments referred to in this Article 10, execute and deliver all such papers and tale 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. Subcontram purchase orders and rental agreements entered into by the Construction Manager with the Owner's written approval prior to t}te execution of Amendment No.. I shall contain provisions permitting assignment to the Owner as described above. If the Owner accepts such assignment. the Owner shall reimburse 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. § 102 TERMINATION SUBSEQUENT TO ESTABLISHING GUARANTEED MAXIMUM PRICE Subsequent to execution by both parties of Amendment No. 1. the Contract may be terminated as provided in Article 14 of A20IT4-2047. as amended. IniL ALA Document A121 T'Crde - 2003 and AGC document 565. Copyright Q r9yt rind 2003 by The Anwitart InsA'tute or Architects arts The Associated denerai COnffiactors of America. All rights rtstrved. WARNING: This document is protecled by U.S. Copyright Law and Inimnalional Trealies. Unaulporixed 20 reproduclion or dislribulion o' this document. or any portion of it. may resull in severe civil and criminal penallies. and will be prosecuted Io the r mazbmum ex lent ,possible under the law. This dorjment was produced by AlA sonware at 1802,03 on 021t3.20M under Order No-100038W7 t which expires on 21712010. and is not roar resale. User dotes: (396t7339t4p § 10.2.1 In the event of such termination by the Owner, the amount payable: to the Construction Manager pursuant to Section 1 4.1.3 of Ala I T`1-21707. as amended.shall not exceed the amount the Construction Manager would have been entitled to receive pursuant to Sections 10. 1.2 and 10. 1.3 of this Agreement. (Yuragraph deleted) § 10.3 SUSPENSION The Work may be suspended by the Owner as provided in Article 14 (+f A201111-2007. as amended; in such case, the Guaranteed Maximum Price, if established, shall be increased as provided in Section 14.3.2 of A201 D-1-2007. as amended ARTICLE 11 OTHER CONDITIONS AND SERVICES § 11A No delay or omission by either of the parties hereto in exercising any right or power accruing upon the noncompliance or failure of performance by the other party hereto of any of the provisions of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A wavier by either of the parties hereto of any of the covenants, conditions or agreements hereof to be performed by the other party hereto shall not be construed to be a waiver of any subsequent breach thereof or of any other covenant. condition or agrccment herein contained. § 11.9 All sums due hereunder are payable in Southlake. Tarrant County. Texas. 11.10 This Agreement, in its entirety. shall be binding upon all the parties hereto, their respective successors, heirs. executors, administrators or assigns. § 11.11 Execution of this Agreement shall constitute approval and acceptance of all terms. covenants and conditions as modified and contained in the Contract Documents. As a material consideration of the making of this Aggreement. the Modifications to this Agreement shall not be construed against the maker of said Modifications, § 11.12 By signing this Agreement, the undersigned certifies as follows: "Under section 231.006, Texas Family Code, the vendor or applicant certifies that the individual or business entity named in the contract. bid. or ;application is not ineligible to receive the specified grant, loan, or payment and acknowledges that this contract may be terminated and payment may be withheld if this certification is inaccurate." § 11.13 Contractor stipulates that Owner is a political subdivision of the State of Texas, aril as such, may enjoy immunities from suit and liability under the Constitution and laws of the State of Texas. By entering into this Agreement, Owner does not waive any of its immunities from suit and/or liability. except as othen%ise specifically provided herein and as specifically authorized by law. § 11.14 This Agreement is subject to all applicable federal and state laws, rules, and regulations, invalidity of any portion of this Agreement under the laws of the State of Texas or of the United States shall not affect the validity of the remainder of this Agreement. § 11.15 The Constriction Manager may not assign its responsibilities, duties, obligations and rights under this Agreement, without the express written consent of the Owner. This does not prevent Construction Manager from engaging subcontractors to perform various phases of the Project. but Construction Manager shall be fully responsible to Owner for the work. actions and omissions of all such subcontractors." § 11.16 Enumeration of Parts of the Agreement, This Agreement comprises the documents listed below, § 11.16.1 The Contract Documents, except for Modifications issued after execution of this Agreemcm. arc enumerated in Paragraph 1.1 and as follows: § 11.162 The Agreement is this executed 2003 edition of the Standard Form of Agreement Between Owner and Construction manger. AIA Document A121-2003, as amended. lnlt. AtA Document A121 TMCMe a- 2003 and AGC baeument 565. Copyright 1991 and 2003 by The American Insphute of Amiatfects and The Assocated General Conlraclors of America. An rights reserved. WARNING: This document is protected by U.S. copyright Law and Inlernallonal Treaties. Unauthorized 21 reproduclion or disfribulion of Ihis document. or any portion of if, may result In severe cavil and criminal penallies, and will be prose.culed to the f -narr7mUm ezter:t possible under the Iaw This document was produced byAtA software at (8:02:03 on 02132009 under Order No.1DN385897 1 which expires on 2A 7Q010, and is not for resele. user NOW: t396173391l) § 11.%3 The General Conditions :Ire the 2007 edition of the Genct-A Conditions of the Contract for Construction. AIA Document A201-2007. as amended. § 11.16.4 The Project Manual No. . including Supplementary and other Conditions. dated and as follows: Document Title Pages § 11.16.5 The Specifications are those contained in the Project Manual dated as in Section 11.4. and are as follows: t Either list the Specifications here or refer try an exhibit atrached to this Agreement.) Title of Specifications exhibit: § 11.16.6 The Drawings arc as follows, and are dated unless a different date is shown below-: (Either list the Drawings here ar refer it) an exhibit alretched to this Agreement.) Title of Drawings exhibit: § 11.16.7 The Addenda. if any. are as follows: Number Date Pages Portions of Addenda relating to bidding requirements are not part of the Contract Documents unless the bidding requirements are also enumerated in this Article 11. § 11.16.8 Other documents, if any. forming pan of 1he Contract Documents are as follows: (List here any additional docienients their are intended to form part of the Contract Documents. AIA Document Alt 1- 007 prnrides that bidding requirements such as adrrerrisemem or inritarion to hid.. Instnictions to Bidders, sample fauns and the )C'ontractor's bid are Plot purr of the Contract Documents unless enumerated in this Agreement. They should be listed here onl r• if intended to he part of the Cunrmcr Documents.) This Agreement entered into as of the day and %,car first written above. OWNER CONSTRUCTION MANAGER (Signature) Andy Wambsganss, Mayor (Printed nante and title) rSignruure) (Printed name and title) Date pate ATTEST ATTEST Init AIA Document A121 "Clue 2003 and AGC Document 563. Capyrigtd a~ 1991 and 2003 by The American in titute al Architects and The Associated General Gonrmctorsof America, All rights reserved. WARNING: This document is protecled by U.S. Copyright Law and International Trealies. Unaulhorized 22 reproduclion or distribution of this docurneni. or any portion oll it, may result in severe civil and criminal penalties, and will be prosecuted to the t rraxlmum extent possible under the late. This document was produced by ALA Software at W02:073 an 021220M under Order 4o.IOM85897_1 whi~h expires on X1712D10. and is rtal liar resale. their Notes: (396t733914)