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Item 4GCITY OF SOUTH LA KE MEMORANDUM October 27, 2010 To: Shana Yelverton, City Manager From: Chris Tribble, Director of Community Services 4G -1 Subject: Approve Professional Services Agreement with Dean Electric, dba Dean Construction, as Construction Manager at Risk for North Park Action Requested: Approve a Professional Services Agreement with Dean Construction as Construction Manager at Risk for the North Park project. Background Information: The City has been working with Schrickel, Rollins and Associates (SRA) on the design for North Park. 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 (CMR) was chosen for this project to obtain the highest level of quality and efficiency. The CMR approach entails hiring a construction management firm that acts as a project consultant and general contractor. The construction management firm is bound to an agreed guaranteed maximum price (GMP) that is determined from actual advertised bids received. The CMR is paid based on a percentage of the cost of the work. The CMR can also bid to self perform a portion of the work. The CMR approach gives the owner opportunity, before the GMP is established, to make adjustments in scope and value engineer if the bidding numbers appear to exceed the established budget. Overall, the CMR approach, because of its flexibility, ensures better cost control and quality. Working with SRA the City advertised Requests for Proposals for Construction Manager at Risk services on June 23, 2010 and June 30, 2010. Eight (8) responses were received and opened on July 30, 2010. The responses were reviewed and evaluated by a committee made up of SRA, Director of Community Services, Chris Tribble, and Construction Manager, Peter Kao. The committee selected 4G -2 City Council Meeting Date — November 2, 2010 Page 2 of 31 two (2) firms for follow -up interviews. Those firms were Gallagher Construction Services and Dean Construction. Interviews were conducted by SRA design staff, Community Services Director Chris Tribble, and Construction Manager Peter Kao. Following the interviews it was the unanimous opinion of the committee to recommend Dean Construction to the Parks & Recreation Board, the Southlake Parks Development Corporation, and City Council for the following reasons: ➢ Dean Construction's ongoing performance in this same role on the Bicentennial Park, Phase improvements has been outstanding. ➢ Dean Construction has the most extensive park construction experience throughout North Texas. ➢ Dean Construction is the most highly recommended company by local municipalities and landscape architectural firms. ➢ Dean Construction scored highest on the CMR selection criteria. ➢ Dean Construction has never had any bond claims or involvement in any construction litigation. ➢ Dean Construction has their top resources available to begin working on North Park immediately. ➢ Dean Construction is a well established company, founded in 1984. Financial Consideration: Funding for this project in the amount of $6,666,000 is approved in the FY 2011 SPDC CIP adopted by the City Council. The total cost for Construction Manager at Risk services is approximately $584,375. This is based upon 10.625% of an estimated construction cost of $5,500,000. This fee includes their role in the Construction Phase and Supplementary Services. Strategic Link: This item is linked to the City's Strategy Map related to the focus area of Quality Development, Infrastructure, and Performance Management and Service Delivery and meets the Corporate Objectives to Invest to Provide and Maintain High Quality Public Assets and to Provide Attractive and Unique Spaces for Enjoyment of Personal Interests. Citizen Input/ 4G -3 City Council Meeting Date — November 2, 2010 Page 3 of 31 Board Review: Parks Board recommended approval (7 -0) at the October 11, 2010 meeting SPDC and City Council will consider at their November 2, 2010 meetings Legal Review: The attached agreement has been reviewed and approved by the City Attorney. Alternatives: Alternatives may include the following: • Recommendation for approval as presented • Recommendation for approval with input as desired • Decision not to recommend approval Supporting Documents: Supporting Documents include: ■ CMR Contract documents Staff Recommendation: Approve a Professional Services Agreement with Dean Construction as Construction Manager at Risk for the North Park project. 4G -4 AGREEMENT made as of the M day of _ in the year (In words, indicate day, month and year.) BETWEEN the Owner: (Name and address) City of Southlake 667 N. Carroll Avenue Southlake, TX 76092 and the Construction Manager: (Name and address) Dean Electric dba Dean Construction 701 Hall Street Cedar Hill, TX 75104 WHEREAS, the City of Southlake, Texas (hereinafter referred to as "Owner") and Dean Electric dba Dean Construction (hereinafter referred to as "Construction Manager") desire to enter into an Agreement under which Construction Manager will perform services relating to the project named below on behalf on Owner; WHEREAS Owner and Construction Manager have agreed to enter into AIA Document Al21CMc -2003 and AGC Document 565, Standard Form of Agreement Between Owner and Construction Manager (2003 edition), as the basic form for that Agreement; and WHEREAS certain terms and conditions of that Agreement need to be modified to comply with applicable laws and policies affecting Owner and Construction Manager in the construction of these projects, Owner and Construction Manager hereby agree to the following amendments to the Agreement: The Project is: (Name, address and brief description) North Park Developmant 200 East Dove Lane City of Southlake, Texas 76092 City Council Meeting Date — November 2, 2010 Page 5 of 31 4G - 5 The construction for North Park includes three multipurpose fields with a restroom and concession buildings, monument signs, roadways, parking, retaining walls, a pond, fencing, railing, pedestrian walkways, landscaping, irrigation, utilities, storm drainage, site lighting, sports lighting, grading and demolition. The Architect is: (Name and address) Schrickel, Rollins and Associates, Inc. 1161 Corporate Drive West, Suite 200 Arlington, TX 76006 aA The Owner and Construction Manager agree as set forth below: City Council Meeting Date — November 2, 2010 Page 6 of 31 I_1AIN4:5 WC] 4ki I::L149 :Z01T161RRk TABLE OF CONTENTS § 1.1 Relationship of the Parties § 1.2 Genera] Conditions ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES § 2.1 Preconstruction Phase § 2.2 Guaranteed Maximum Price Proposal and Contract Time § 2.3 Construction Phase § 2.4 Professional Services § 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 Guaranteed 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 7 CONSTRUCTION PHASE § 7.1 Progress Payments § 7.2 Final Payment 4G - 6 City Council Meeting Date — November 2, 2010 Page 7of31 ARTICLE 8 INSURANCE AND BONDS § 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 § 9.2 Other Provisions ARTICLE 10 TERMINATION OR SUSPENSION § 10.1 Termination Prior to Establishing Guaranteed Maximum Price § 10.2 Termination Subsequent to Establishing Guaranteed Maximum Price § 10.3 Suspension ARTICLE 11 OTHER CONDITIONS AND SERVICES 4G - 7 City Council Meeting Date — November 2, 2010 Page 8 of 31 ARTICLE 1 GENERAL PROVISIONS 4G - 8 § 1.1 RELATIONSHIP OF PARTIES The Construction Manager accepts the relationship of trust and confidence established with the Owner by this Agreement, and covenants with the Owner to furnish the Construction Manager's reasonable skill and judgment and to cooperate with the Architect in furthering the interests of the Owner to perform the Work defined in the Contract Documents, in accordance with the Owner's requirements and construction cost limimtations, as approved by the Council and set fort in the Contract Documents. The Construction Manager shall furnish construction services (if allowed in accordance with law) administration and management services and use the Construction Manager's best efforts to perform the Project in an expeditious and economical manner consistent with the interests of the Owner. The Owner shall endeavor to promote harmony and cooperation among the Owner, Architect, Construction Manager and other persons or entities employed by the Owner for the Project. § 1.1.1 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 Document 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, representations 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. § 1.1.3 The City Council, by majority vote, is the only representative of the Owner, a 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: City Manager, Assistant City Manager, Director, Community Services Construction Manager, or successor. § 1.1.4 The Council designates the authorized representatives identified in Paragraph 3.2 to act on its behalf in other respects. City Council Meeting Date — November 2, 2010 Page 9 of 31 4G - 9 § 1.2 GENERAL CONDITIONS For the Construction Phase, the General Conditions of the contract shall be the AIA® Document A20ITm-2007, 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, A20ITw-2007, as amended, shall apply to the Preconstruction Phase only as specifically provided in this Agreement. The term" Contractor" as used in A201Tw-2007, as amended, shall mean the Construction Manager. ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES The Construction Manager shall perform the services described in this Article. The services to be provided under Sections 2.1 and 2.2 constitute the Preconstruction Phase services. If the Owner and Construction Manager agree, after consultation with the Architect, the Construction Phase may commence before the Preconstruction Phase is completed, in which case both phases will proceed concurrently. § 2.1 PRECONSTRUCTION PHASE § 2.1.1 PRELIMINARY EVALUATION The Construction Manager shall 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 shall consult with the Owner and Architect regarding site use and improvements. The Construction Manager shall provide recommendations on construction schedule; 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 requirements; and factors related to construction cost. § 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 site, civil, landscape architecture, 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 Preconstruction Phase by the Construction Manager through the exercise of reasonable diligence, and the Owner and Architect were not informed of such conflicts. 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 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 with the services and activities of the Owner, Architect, Construction Manager and Construction Manager's subcontractors. The preliminary Project schedule shall indicate proposed activity sequences and durations, milestone dates for receipt and approval of pertinent information, submittal of a Guaranteed Maximum Price proposal, preparation and processing of shop drawings and samples, delivery of materials or equipment requiring long - lead -time procurement, Owner's occupancy requirements showing portions of the Project having 4G -10 City Council Meeting Date — November 2, 2010 Page 10 of 31 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 met, 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, if any are warranted, to the Owner and Architect regarding the phased issuance of Drawings and Specifications § 2.1.5 PRELIMINARY COST ESTIMATES § 2.1.5.1 Not Used § 2.1.6 SUBCONTRACTORS AND SUPPLIERS The Construction Manager shall seek to develop subcontractor interest in the Project and shall furnish to the Owner and Architect for their information a list of possible subcontractors, including suppliers who are to furnish materials or equipment fabricated to a special design, from whom proposals will be requested for each principal portion of the Work. The Architect will promptly reply in writing to the Construction Manager if the Architect or Owner know of any objection to such subcontractor or supplier. The receipt of such list shall not require the Owner or Architect to investigate the qualifications of proposed subcontractors or suppliers, nor shall it waive the right of the Owner or Architect later to object to or reject any proposed subcontractor or supplier. § 2.1.7 LONG- LEAD -TIME ITEMS The Construction Manager shall recommend to the Owner and Architect a schedule for procurement of long -lead -time items which will constitute part of the Work as required to meet the Project schedule. If such long - lead -time items are procured by the Owner, they shall be procured on terms and conditions acceptable to the Construction Manager. Upon the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal, all contracts for such items shall be assigned by the Owner to the Construction Manager, who shall accept responsibility for such items as if procured by the Construction Manager. The Construction Manager shall expedite the delivery of long - lead -time items. § 2.1.8 EXTENT OF RESPONSIBILITY The Construction Manager does not warrant or guarantee estimates and schedules except as may be included as part of the Guaranteed Maximum Price. It is not the Construction Manager's responsibility to ascertain that the Drawings and Specifications are in accordance with applicable laws, statutes, ordinances, building codes, rules and regulations. However, if the Construction Manager recognizes or reasonably should recognize 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. City Council Meeting Date — November 2, 2010 Page 11 of 31 4G -11 § 2.2 GUARANTEED MAXIMUM PRICE PROPOSAL AND CONTRACT TIME § 2.2.1 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 with 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 the 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 Manager's use as may be required for costs incurred in the Work from unforeseeable causes, or details which could not have been reasonably 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 documents, 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 Change 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 total Construction Contingency amount shown in the GMP shall be split in half (50% shall be the Construction Contingency and 50% shall be Owner's Contingency). § 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 with the Guaranteed Maximum Price proposal a written statement of its basis, which shall include: .1 A list of the Drawings and Specifications, including all addenda thereto and the Conditions of the Contract, which were used in preparation of the Guaranteed Maximum Price proposal. .2 A list of allowances and a statement of their basis. .3 A list of the clarifications and assumptions made by the Construction Manager in the preparation of the Guaranteed Maximum Price proposal to supplement the information contained in the Drawings and Specifications. .4 The proposed Guaranteed Maximum Price, including a statement of the estimated cost organized by trade categories, allowances, contingency, and other items and the Fee that comprise the Guaranteed Maximum Price. City Council Meeting Date — November 2, 2010 Page 12 of 31 4G -12 .5 The Date of Substantial Completion upon which the proposed Guaranteed Maximum Price is based, and a schedule of the Construction Documents issuance dates upon which the date of Substantial Completion is based. .6 The Date of Final Completion upon which the proposed Guaranteed Maximum Price is based, which date shall be 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 or other than a maximum cost basis. § 2.2.5 The Construction Manager shall meet with the Owner and Architect to review the Guaranteed Maximum Price proposal and the written statement of its basis. In the event that the Owner or Architect 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. § 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's 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 forms 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 Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a Notice to Proceed, the Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work, except as the Owner may specifically authorize in writing. § 2.2.8 Upon acceptance by the Owner's City Council of the Guaranteed Maximum Price proposal, and its basis, the date inserted on the first page of Amendment No. 1 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 be subject to adjustment if approved by Owner's City Council as provided in the Contract Documents. § 2.2.9 The Owner shall authorize and cause the Architect to revise the Drawings and Specifications to the extent necessary to reflect the agreed -upon assumptions and clarifications contained in Amendment No. 1. Such revised Drawings and Specifications shall be furnished to the Construction Manager in accordance with schedules agreed to by the Owner, Architect and Construction Manager. The Construction Manager shall promptly notify the Architect and Owner if such revised Drawings and Specifications are inconsistent with the agreed -upon assumptions and clarifications. § 2.2.10 The Guaranteed Maximum Price shall 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. City Council Meeting Date — November 2, 2010 Page 13 of 31 4G -13 § 2.3 CONSTRUCTION PHASE § 2.3.1 GENERAL § 2.3.1.1 The date of commencement of the Construction Phase is the first business day after the Construction Manager's receipt 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 sealed proposals from subcontractors for the performance of all major elements of the Work. § 2.3.2.2 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 the additional cost and /or risk in writing and shall provide written proof of same before Owner compensates Construction Manager. § 2.3.2.2.1 The Construction Manager shall include the following specific notices in the information to proposers: The successful proposer's responsibility to provide workers' compensation insurance in accordance with Texas Labor Code Chapter 406; 2 The successful proposer's responsibility to pay prevailing wages pursuant to Texas Government Code Chapter 2258; 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 756.02." § 2.3.2.2.2 Nothing herein shall preclude the Construction Manager from including other notices required or allowed by law. § 2.3.2.3 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated to a special design shall conform to the payment provisions of Sections 7.1.8 and 7.1.9 and shall not be awarded on the basis of cost plus a fee without the prior consent of the Owner. 4G -14 City Council Meeting Date — November 2, 2010 Page 14 of 31 § 2.3.2.4 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 A20ITA-2007, as revised, including the Owner's occupancy requirements. § 2.3.2.6 The Construction Manager shall provide monthly written reports to the Owner and Architect on the progress of the entire Work. The Construction Manager shall maintain a daily log containing a record of weather, Subcontractors working on the site, number of workers, Work accomplished, problems encountered and other similar relevant data as the Owner may reasonably require. The log shall be available to the Owner and Architect at any time during work hours, and shall be present for discussion at the meetings referenced in subparagraph 2.3.2.4 above.. § 2.3.2.7 The Construction Manager shall develop a system of cost control for the Work, including regular monitoring of actual costs for activities in progress including changes to the Work approved by Owner, and estimates for uncompleted tasks and proposed changes. The Construction Manager shall identify variances between actual and estimated costs and report the variances to the Owner and Architect at regular intervals. § 2.3.3 The contractor shall bear full responsibility for design and execution of acceptable trenching and shoring procedures, in accordance with Texas Health and Safety Code section 756.021 et seq., 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) feet in depth, in accordance with Texas Health and Safety Code section 756.023 (a), Construction Manager shall fully comply, and shall require any applicable subcontractor to comply, with: Occupational Safety & Health Administration Standards and Guidelines, or as approved and sealed by a licensed engineer. § 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 feet of shoring used. Said cost shall be included within the Guaranteed Maximum Price. § 2.4 PROFESSIONAL SERVICES Section 3.12. 10 of A201Tw-2007, as amended, shall apply to both the Preconstruction and Construction Phases. § 2.5 HAZARDOUS MATERIALS Section 10.3 of A201Tw-2007, 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 which sets forth the Owner's objectives, constraints and criteria, including space requirements and relationships, flexibility and expandability requirements, special equipment and systems, and site requirements. 4G -15 City Council Meeting Date — November 2, 2010 Page 15 of 31 § 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 Preconstruction 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 during 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 streets, alleys, pavements and adjoining property and structures; adjacent drainage; rights -of -way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data pertaining to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All information on the survey shall be referenced to a project benchmark. § 3.1.4.3 The services of a geotechnical engineer when such services are 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. § 3.1.4.4 Structural, mechanical, chemical, air and water pollution tests, tests for hazardous materials, and other laboratory and environmental tests, inspections and reports which are required by law. § 3.1.4.5 The services of other consultants when such services are reasonably required by the scope of the Work or the Project and are requested by the Construction Manager and approved by the Owner. § 3.2 OWNER'S DESIGNATED REPRESENTATIVE Owner's City Council shall designate one or more authorized representatives to act on its behalf in the day -to -day 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 authorized representatives, the following individuals: City Manager, Assistant City Manager, Director, or Community Services Construction Manager. City Council Meeting Date — November 2, 2010 Page 16 of 31 4G -16 § 3.3 ARCHITECT The Construction Manager's services 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 Construction Manager shall provide or contract for the inspection services, the testing of construction materials engineering, and the verification testing services necessary for acceptance of the Work by Owner. 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: Included in Article 5 § 4.1.2 Compensation for Preconstruction Phase Services may be equitably adjusted if such services extend beyond ( ) days from the date of this Agreement or if the originally contemplated scope of services is significantly modified. § 4.1.3 If compensation is based 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 mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, pensions and similar contributions and benefits. § 4.2 PAYMENTS § 4.2.1 Payments shall be made monthly following presentation of the Construction Manager's invoice and, where applicable, shall be in proportion to services performed. § 4.2.2 Payments are due and payable Thirty V 30 ) days from the date the Construction Manager's invoice is received by the Owner. Amounts unpaid after the date on which payment is due shall bear interest. 6.00% per annum City Council Meeting Date — November 2, 2010 Page 17 of 31 ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES The Owner shall compensate the Construction Manager for Construction Phase services as follows: 4G -17 § 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: The Construction Manager's compensation shall be two and three - quarters percent (2.75 %) of the actual Cost of the Work for work performed pursuant to the Contract, as adjusted for changes in the Work, payable as herein provided, provided that the sum of the Cost of Work, and the cost of the Construction Manager's fee as provided by the Contract Documents shall not exceed the Guaranteed Maximum Price. In addition to the above compensation, the Owner agrees to reimburse the Construction Manager for the actual direct cost of items as follows: Insurance and Bonds- 1.50% of the actual Cost of Work Staff Labor — 3.75% of the actual Cost of Work Inspection and Testing — 0.875% of Actual Cost of Work General Conditions — 1.375% of the actual Cost of Work Rentals — 0.375% of the actual Cost of Work Total Additional Compensation- 7.875 % of Actual Cost of Work The Construction Manager's fee and the cost of these items shall be included in the Guaranteed Maximum Price. It is agreed that the Construction Manager's compensation of two and three quarters percent (2.75 %) shall not apply to the cost of these additional reimbursement items. § 5.2 GUARANTEED MAXIMUM PRICE § 5.2.1 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. 1 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. 1, subject to additions and deductions by changes in the Work as provided in the Contract Documents. Such maximum sum as adjusted by approved changes in the Work is referred to in the Contract Documents as the Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Construction Manager without reimbursement by the Owner. Should the City Council Meeting Date — November 2, 2010 Page 18 of 31 4G -18 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 Guaranteed Maximum Price. If the Construction Manager completes the Project in a timely manner in accordance with the Contract Documents for less than the Guaranteed Maximum Price, the resulting cost savings shall be shared between the Construction Manager and the Owner. Fifteen (15 1 /o) percent of any such cost savings shall be paid to the Construction Manager at the time of the Final Payment and eighty -five (85 %) percent of such cost savings shall be retained by the Owner. § 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. 1 shall cause an adjustment to the Guaranteed Maximum Price. ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE § 6.1 COSTS TO BE REIMBURSED § 6.1.1 The term "Cost of the Work" shall mean costs necessarily incurred by the Construction Manager in the proper performance of the Work 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. § 6.1.2 LABOR COSTS .1 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 written agreement performing same, at off -site workshops. .2 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 Name .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. .4 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 are based on wages and salaries included in the Cost of the Work under Sections 6.1.2.1 through 6.1.2.3. City Council Meeting Date — November 2, 2010 Page 19 of 31 4G -19 § 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 for such Work, 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 .1 Costs, including transportation, of materials and equipment incorporated or to be incorporated in the completed construction. .2 Costs of materials described in the preceding 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; amounts 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 cost less salvage value on such items if not fully consumed, whether sold to others or retained by the Construction Manager. Cost for items previously used by the Construction Manager shall mean fair market value. .2 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. .3 Costs of removal of debris from the site. .4 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 for self - insurance are to be included, specify the basis of reimbursement.) .2 .3 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 nonconforming Work other than that for which payment is permitted by Section 6.1.8.2. .5 Royalties and license fees paid for the use of a particular design, process or product required by the Contract Documents. .7 Deposits lost for causes directly resulting from the Owner's actions or decisions other than the Construction Manager's negligence or failure to fulfill a specific responsibility to the Owner set forth in this Agreement. City Council Meeting Date — November 2, 2010 Page 20 of 31 § 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. 4G - 20 § 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.lwhich are incurred by the Construction Manager: .1 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 10.46 of A201T" X2007. § 6.1.9 The costs described in Sections 6.1.1 through 6.1.8 shall be included in the Cost of the Work notwithstanding any provision of A201Tw-2007 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 Except as specifically otherwise provided in the third paragraph of Section 5.1.1, the Cost of the Work shall not include: .1 Salaries and other compensation of the Construction Manager's personnel stationed at the Construction Manager's principal office or offices other than the site office, except as specifically provided in 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, costs due to the negligence of the Construction Manager or to the failure of the Construction Manager to fulfill a specific responsibility to the Owner set forth in this Agreement. .7 Costs incurred in the performance of Preconstruction Phase Services. .8 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. .10 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 Documents, 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 (2) the Owner has deposited funds with the Construction Manager with which to make payments; otherwise, cash discounts shall accrue to the Construction Manager. Trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment shall accrue to the Owner, and the Construction Manager shall make provisions so that they can be secured. City Council Meeting Date — November 2, 2010 Page 21 of 31 4G - 21 § 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, books, correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to this Project, and the Construction Manager shall preserve these for a period of twelve years after the date of Final Completion, or for such longer period as may be required by law. ARTICLE 7 CONSTRUCTION PHASE PAYMENTS § 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 Architect, the Owner shall make progress payments on account of the Contract Sum to the Construction Manager as provided below and elsewhere in the Contract Documents. § 7.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, or as follows: § 7.1.3 The Construction Manager shall submit monthly Applications for Payment to both the Architect and the Owner's 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 necessary 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 shall bear interest pursuant to Texas Government Code section 2251.025. § 7.1.4 Each 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. § 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 shall allocate the entire Guaranteed Maximum Price among the various portions of the Work, except that the Construction Manager's Fee shall be shown as a single separate item. The schedule of values shall be prepared City Council Meeting Date — November 2, 2010 Page 22 of 31 4G - 22 in such form and supported by such data to substantiate its accuracy as the Architect may require less any unused Owner's contingency. This schedule, unless objected to by the Architect, shall be used as a basis for reviewing the Construction Manager's Applications for Payment. § 7.1.6 Applications for Payment shall show the percentage completion of each portion of the Work as of the end of the period covered by the Application for Payment. The percentage completion shall be the 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. Pending 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 documentof A201Tm-2007, 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 Owner, suitably stored off the site at a location agreed upon in writing. .3 Add the Construction Manager's Fee. The Construction Manager's 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 Manager's Fee is stated as a fixed sum in that Section, shall 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 to a 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 Owner's accountants or other representatives in such documentation. .6 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 A201TW- 2007, as amended. .7 Subtract retainage of five percent (5 %) of the remaining amount, including the Construction Manager's Fee, of the progress payment. (Note: Under Texas law, if the retainage exceeds five percent, then the retainage shall be deposited in an interest - bearing account, and the interest earned on the retainage shall be paid to the Construction Manager upon completion of the Work, Texas Government 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, then 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 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. City Council Meeting Date — November 2, 2010 Page 23 of 31 4G - 23 § 7.1.8 Except with the Owner's prior written approval, payments to Subcontractors shall be subject to retention of not less than five ( 5% ). The Owner and the Construction Manager shall agree upon a mutually acceptable procedure for review and approval of payments and retention for subcontracts. § 7.1.9 Except with the Owner's prior written approval or as otherwise provided in Section 9.3.2 of the AIA Document A201 -2007, as amended, the Construction Manager shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. § 7.2 FINAL PAYMENT § 7.2.1 Final payment shall be made by the Owner to the Construction Manager when (1) the Contract has been fully performed by the Construction Manager including the Construction Manager's responsibility to correct nonconforming Work, and except for the Construction Manager's said responsibility, such final payment shall be 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 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 certified by the Construction Manager and reviewed and approved by the Owner's accountants or other representatives; (3) a final Certificate for Payment has then been issued by the Architect and approved by the Program Manager; (4) Construction Manager has provided all documents required by Section 9.10 of AIA Document A201TM- 2007,as amended; and (5) Owner's City Council has voted to accept the Work and approved Final Payment. § 7.2.2 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 Maximum 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. .4 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, then Owner shall be entitled to deduct such liquidated damages, amounts and fees due Construction Manager at any time. City Council Meeting Date — November 2, 2010 Page 24 of 31 4G - 24 .c If Construction Manager fails or refuses to complete the Work, or has unsettled claims 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 Construction Manager shall reimburse the difference to the Owner. § 7.2.3 The Owner's accountants or other representatives will review and report in writing on the Construction Manager's final accounting within 30 days after delivery of the final accounting to the Architect by the Construction Manager. Based upon such Cost of the Work as the Owner's accountants report to be substantiated by the Construction Manager's final accounting, and provided the other conditions of Section 7.2.1 have been met, the Architect will, within seven days after receipt of the written report of the Owner's accountants or other representatives, either issue to the Owner a final Certificate for Payment with a copy to the Construction Manager or notify the Construction Manager and Owner in writing of the Architect's reasons for withholding a certificate as provided in Section 9.5.1 of A201Tw-2007, as amended . The time periods stated in this Section 7.2 supersede those stated in Section 9.4.1 of A201Tm-2007, as amended. § 7.2.4 If the Owner's accountants or 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 or other dispute resolution provided in the Contract Documents of the disputed amount shall be made by the Construction Manager within 30 days after the Construction Manager's receipt of a copy of the Architect's final Certificate for Payment. Failure to make such demand within this 30 -day period shall result in the substantiated amount reported by the 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. § 7.3 DAMAGES § 7.3.1 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 actual and direct damages if the Construction Manager fails to timely achieve the Substantial Completion and Final Completion of the Work within said deadlines. Such actual and direct damages are, and will continue to be, impracticable and extremely difficult to determine. Execution of this Agreement under these specifications shall constitute agreement by Owner and Contractor that the amounts stated below are the minimum value of the costs and actual and direct damages caused by failure of Contractor to substantially complete the work within the allotted times, City Council Meeting Date — November 2, 2010 Page 25 of 31 4G - 25 that such sums are liquidated direct damages and shall not be construed as a penalty, and that such sums may be deducted from payments due Contractor if such delay occurs. It is expressly understood that the said sum per day is agreed upon as a fair estimate of the pecuniary damages which will be sustained by the 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 from the Final Payment made to the Construction Manager a sum equal to $ 1000.00 per day for each and every additional calendar day beyond the agreed date of Substantial Completion. § 7.3.3 Timely Final 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. Owner 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 liquidated damages for each calendar day Final Completion is delayed beyond the date set for Final Completion shall be the sum of $1000.00 per day. Owner may deduct from 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. § 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." § 7.3.5 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. ARTICLE 8 INSURANCE AND BONDS § 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 A201Tw-2007. Such insurance shall be written for not less than the limits set forth in AIA Document A201 -2007, as amended, or greater if required by law: City Council Meeting Date — November 2, 2010 Page 26 of 31 4G - 26 § 8.2 INSURANCE REQUIRED OF THE OWNER The Owner may purchase and maintain liability and property insurance, including waivers of subrogation, as set forth in Sections 11.2 and 11.3 of A201TW-2007. Such insurance is to protect Owner, as provided in Article 11 of AIA Document A201 -2007, as amended: § 8.3 PERFORMANCE BOND AND PAYMENT BOND § 8.3.1 Prior to performing the Work, the Construction Manager 10 (insert "shall" or "shall not') provide separate performance and payment bonds in accordance with AIA Documkent A201 -2007, Section 11.4, as amended. 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 A201Tw-2007, as amended, except that, during the Preconstruction 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. § 9.2 OTHER PROVISIONS § 9.2.1 Unless otherwise noted, the terms used in this Agreement shall have the same meaning as those in A201Tm-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. If anything 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. § 9.2.3 OWNERSHIP AND USE OF DOCUMENTS Article 1.5 of A201Tw-2007, as amended, shall apply to both the Preconstruction and Construction Phases. City Council Meeting Date — November 2, 2010 Page 27 of 31 4G - 27 § 9.2.4 GOVERNING LAW The Contract shall be governed by laws of 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 consideration of the making of this Contract, the modifications to this Contract shall not be construed against the maker of said modifications.. § 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 A201Tw-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. 1 establishing the Guaranteed Maximum Price, the Owner may terminate this Contract at any time without cause, and the Construction Manager may terminate this Contract for any of the reasons described in Section 14.1.1, 14.1.2 and 14.1.4 of A201TIL-2007, as amended. § 10.1.2 If the Owner or Construction Manager terminates this Contract pursuant to this Section 10.1 prior to commencement of the Construction Phase, the Construction Manager shall receive no compensation for Preconstruction Phase Services performed by the Construction Manager 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 follows: .1 Take the Cost of the Work incurred by the Construction Manager. .2 Add the Construction Manager's Fee computed upon the Cost of the Work to the date of termination at the rate stated in 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 which 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 take legal assignment of subcontracts and purchase orders (including rental agreements), the Construction Manager shall, as a condition of receiving the payments referred to in this Article 10, execute and deliver all such papers and take all such steps, including the legal assignment of such subcontracts and other contractual rights of the Construction Manager, as the Owner may require for the purpose of fully vesting in the Owner the rights and benefits of the Construction Manager under such subcontracts or purchase orders. City Council Meeting Date — November 2, 2010 Page 28 of 31 4G - 28 Subcontracts, purchase orders and rental agreements entered into by the Construction Manager with the Owner's written approval prior to the execution of Amendment No. 1 shall contain provisions permitting assignment to the Owner as described above. If the Owner accepts such assignment, the Owner shall reimburse 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. § 10.2 TERMINATION SUBSEQUENT TO ESTABLISHING GUARANTEED MAXIMUM PRICE Subsequent to execution by both parties of Amendment No. 1, the Contract may be terminated as provided in Article 14 of A20ITw-2007, as amended. § 10.2.1 In the event of such termination by the Owner, the amount payable to the Construction Manager pursuant to Section 14.1.3 of A20ITm-2007, 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. § 10.3 SUSPENSION The Work may be suspended by the Owner as provided in Article 14 of A201Tw-2007; in such case, the Guaranteed Maximum Price, if established, shall be increased as provided in Section 14.3.2 of A201Tw-2007, as amended. ARTICLE 11 OTHER CONDITIONS AND SERVICES § 11.1 The Construction Manager shall publicly advertise, as prescribed for a governmental entity under Section 271.025 of the Texas Local Government Code, and receive bids or proposals from trade contractors or subcontractors for the performance of all major elements of the work other than minor work that may be included in the general conditions identified in Construction Manager's Proposal and is described in Subparagraph 5. 1.1 of this Agreement. [Section 271.118(h), Tex. Local Gov't Code] § 11.2 The Construction Manager may seek to perform portions of the Work itself if the Construction Manager submits its bid or proposal for those portions of the Work in the same manner as all other trade contractors or subcontractors and if the Owner determines that the Construction Manager's bid or proposal provides the best value for the Owner. [Section 271.18(h), Tex. Local Gov't Code] § 11.3 The Construction Manager and the Owner or its representatives shall review all trade contractor or subcontractor bids or proposals in a manner that does not disclose the contents of the bid or proposal during the selection process to a person not employed by the Construction Manager, Engineer, Architect or Owner. All bids or proposals shall be made public after the award of the contract or not later than the seventh day after the date of final selection of bids or proposals, whichever is later. [Section 271.118(i), Tex. Local Gov't Code] City Council Meeting Date — November 2, 2010 Page 29 of 31 4G - 29 § 11.4 If the Construction Manager reviews, evaluates, and recommends to the Owner a bid or proposal from a qualified and, if applicable, licensed trade contractor or subcontractor but the Owner unreasonably requires another bid or proposal to be accepted, the Owner shall compensate the Construction Manager by a change in price, time, or Guaranteed Maximum Price for any additional cost and risk that the Construction Manager may incur because of the Owner's requirement that another bid or proposal be accepted. [Section 271.1180), Tex. Local Gov't Code] § 11.5 If a selected trade contractor or subcontractor defaults in the performance of its work or fails to execute a subcontract after being selected, the Construction manager may, with the Owner's written consent, without advertising, fulfill the contract requirements itself or select a replacement trade contractor or subcontractor to fulfill the contract requirements. [Section 271.119(k), Tex. Local Gov't Code] § 11.8 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 agreement 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 Agreement, 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." City Council Meeting Date — November 2, 2010 Page 30 of 31 4G - 30 § 11.13 Contractor stipulates that Owner is a political subdivision of the State of Texas, and 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 otherwise 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 Construction 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 Agreement, are enumerated in Paragraph 1.1 and as follows: § 11.16.2 The Agreement is this executed 2003 edition of the Standard Form of Agreement Between Owner and Construction Manager, AIA Document Al21 -2003, as amended. § 11.16.3 The General Conditions are the 2007 edition of the General 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: Specifications Exhibit B: City Council Meeting Date — November 2, 2010 Page 31 of 31 § 11.16.6 The Drawings are as follows, and are dated Drawings Exhibit C: § 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 part of the Contract Documents are as follows: None This Agreement entered into as of the day and year first written above. OWNER (Signature) (Printed name and title) Date ATTEST 4G - 31 unless a different date is shown below: CONSTRUCTION MANAGER (Signature) (Printed name and title) Date ATTEST