Item 4GCITY OF
SOUTHLAKE
MEMORANDUM
September 26, 2012
To: Shana Yelverton, City Manager
r vYV1 tai
From: Chris Tribble, Director of Community Services
Subject: Approve a professional services agreement with Dean
Construction as Construction Manager at Risk for the
Bicentennial Park Improvements
Action
Requested: Approve a professional services agreement with Dean
Electric, Inc., dba Dean Construction, as Construction
Manager at Risk for the Bicentennial Park Improvements
Background
Information: The City has been working with Schrickel, Rollins and
Associates, Inc. (SRA) to design the improvements for
Bicentennial Park. In 2009, the City adopted Resolution No.
09 -004, which 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 (CMAR) method
has been successfully used for the DPS Headquarters
facility, North Park and the first phase of improvements for
Bicentennial Park, and will continue to be used for
subsequent improvements at the park to continue the
highest level of quality and efficiency.
The City advertised Requests for Proposals for Construction
Manager at Risk and received ten (10) responses from
interested firms. The responses were reviewed and
evaluated by a committee made up of Assistant City
Manager, Jim Blagg, Director of Community Services, Chris
Tribble, Construction Manager, Peter Kao, and the SRA
design team. The committee selected four firms for follow -up
interviews, and unanimously recommended Dean
Construction as the CMAR for Bicentennial Park
Improvements. Dean is recommended to the Parks &
Recreation Board, the Southlake Parks Development
Corporation and the City Council for the following reasons:
City of Southlake Values:
Integrity ♦ Innovation ♦ Accountability ♦ Commitment to Excellence ♦ Teamwork
Shana Yelverton, City Manager
Meeting Date — October 2, 2012
Page 2 of 3
y Dean Construction has successfully delivered two top
quality projects as the Construction Manager at Risk
for both Bicentennial Park and North Park.
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.
:i� Dean Construction scored highest on the CMAR
selection criteria.
v 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 Bicentennial Park.
Dean Construction is a well - established company,
founded in 1964.
Financial
Consideration: The Construction Manager at Risk's compensation shall be
2.25% of the actual Cost of the Work performed based on an
estimated construction cost of $9,000,000. This fee includes
their role in the Construction Phase and Supplementary
Services.
Industry standards for these CMAR services range between
3% and 6% of total construction costs.
The Guaranteed Maximum Price for contractor will be
considered by the City Council at a future meeting.
Strategic Link: This item is linked to the City's Strategy Map related to the
focus areas of Quality Development and Infrastructure 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/
Board Review: Parks Board recommended approval (6 -0) September 10,
2012
SPDC to consider prior to City Council consideration on
October 2, 2012
Legal Review: PSA for CMAR services is based on previous agreements
reviewed by City Attorney
City of Southlake Values:
Integrity ♦ Innovation ♦ Accountability ♦ Commitment to Excellence ♦ Teamwork
Shang Yelverton, City Manager
Meeting Date — October 2, 2012
Page 3 of 3
Alternatives: Alternatives may include:
• Approve agreement as presented
• Approve agreement with input as desired
• Decision not to approve agreement
Staff
Recommendation: City Council approve a professional services agreement with
Dean Construction as Construction Manager at Risk for the
Bicentennial Park Improvements.
City of Southlake Values:
Integrity ♦ Innovation ♦ Accountability ♦ Commitment to Excellence ♦ Teamwork
AIA Document A133Im - 2009
Standard Form of Agreement Between Owner and Construction
Manager as Constructor where the basis of payment is the
Cost of the Work Plus a Fee with a Guaranteed Maximum Price
AGREEMENT made as of the << » day of v v in the year <(»
ADDITIONS AND DELETION&:
(In words, indicate day, month and year.)
The author of this document
has added information
BETWEEN the Owner:
needed for its completion.
The author may also have
(Name, legal status and address)
revised the text of the
original AIA standard form.
City of Southlake
An ,Additions and Deletions
1400 Main Street
Report that notes added
information as well as
Southl6t. 76041
revisions to the standard
form text is available from
and the Construction Manager:
the author and should be
(Name, legal status and address)
reviewed.
This document has important
Dean Electric dba Dean C;onstiuctlon
legal consequences
Consultation with an
7.01 Hall Street
attorney is encouraged with
Cedar Hill, TX 1,5104
.respect to its completion
or modification.
WHEREAS, the City of Southlake, Texas (hereinafter referred to as "Owner ")
"I Docurnent.A201 -2007,
and Dean Electric dba Dean Construction (hereinafter referred to as "Construction
General Conditions of the
Contract for Construction,
Manager") desire to enter into an Agreement under which Construction Manager will
is adopted in this document
perform services relating to the project named below on behalf on Owner;
by reference. Do not use
with other general
Manager
WHEREAS Owner and Construction er Mana have agreed into d to enter i AIA
conditions unless this
document.is modified.
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:
for the following Project:
(Name and address or location)
i(Bicentennial Paik Development
450 W Southlake Blvd
Southlake, Tx 76092
The construction foi Bicentennial Paik includes two baseball fields. a restioom and
concession building. maintenance building, monument signs, roadwa)s. paiking. ELECTRONIC copylNC of any
retailing walls. a pond fencing, railing. pedestrian walkways. landscaping. irrigation. portion of this AIA Document
utilities, storm drainage site lighting, sports lighting. grading and demolition to another electronic file is
�( b prohibited and constitutes a
violation of copyright laws
as set forth in the footer of
The Architect: this document.
(Name, legal status and address)
AIA Document A133 - 2009 ffonmerly A321 -CHO - 2003). Copyright '` 1991, 2003 and 2009 by The American Institute of Architects. All rights
reserved. WXRNINGt This AIA Document is prOteCted by u.9. Copyright Law and International Treaties. unauthorized reproduction or
distribution of this AIA 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 draft s produced b_ AIA software at 09:5 °:37 on 09;05/2012 under Order H0.7448366773_1 which
expires on 02/14.'2o1„ and is not for resale.
user Notes: (F440 "4587)
Schnckel.. Rollins and Associates, Inc
1161 Corporate Drn e* est. State 200
Arlington, TX 76006;
The Owner's Designated Representative:
(Name, address and other information)
V u
The Construction Manager's Designated Representative:
(Name, address and other information)
(< »
�( )>
i! N
0 1)
The Architect's Designated Representative:
(Name, address and other information)
0 >)
>>
u»
« ):
n
The Owner and Construction Manager agree as follows.
AIA Document A133m - 2009 (formerly Al21 - 2003). Copyright - 1991, 2003 and 2009 by The American Institute of Architects. All rights
reserved. WAMMZNr: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or
distribution of thin AIA' Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the 2
maximum extent possible under the law. This draft was produced by AIA soft-are at 09:58:37 on 09,05/2012 under Order No.`44s356 3_1 which
expires on 92.14/2013, and is not for resale.
user Rotes: (944064582)
TABLE OF ARTICLES
GENERAL PROVISIONS
CONSTRUCTION MANAGER'S RESPONSIBILITIES
OWNER'S RESPONSIBILITIES
4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES
5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES
6 COST OF THE WORK FOR CONSTRUCTION PHASE
7 PAYMENTS FOR CONSTRUCTION PHASE SERVICES
8 INSURANCE AND BONDS
9 DISPUTE RESOLUTION
10 TERMINATION OR SUSPENSION
11 MISCELLANEOUS PROVISIONS
12 SCOPE OF THE AGREEMENT
ARTICLE 1 GENERAL PROVISIONS
§ 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 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.by the parties.
§ 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.
AIA Document A1331 - 2009 (formerly Al21 - 2003). Copyright c 1991, 2003 and 2009 by The American Institute of Architects. All rights
reserved. WARNnM: Thia AiA Document is protected by UInternational .3. Copyright Law and Inte Treaties. Unauthorized reproduction ar
distribution of this AM Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the 3
maximum extent possible under the law. This draft ¢as produced by AIA soft -are at 09:58:37 on 09,05,'2012 under order Mo.744�366773_1 which
expires on 02 /14/2013, and is not for resale.
User Notes: (944064559)
§ 1.1.4 The Council designates the authorized representatives identified in Paragraph 3.2 to act on its behalf in other
respects.
§ 1.2 Relationship of the Parties
The Construction Manager accepts the relationship of trust and confidence established by this Agreement and
covenants with the Owner to cooperate with the Architect and exercise the Construction Manager's skill and
judgment 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 Owner and set forth
in the Contract Documents; to furnish efficient construction administration, management services and supervision;
to furnish at all times an adequate supply of workers and materials; and to perform the Work in an expeditious and
economical manner consistent with the Owner's interests (if allowed in accordance with law ).The Owner agrees to
furnish or approve, in a timely manner, information required by the Construction Manager and to make payments to
the Construction Manager in accordance with the requirements of the Contract Documents.
§ 1.3 General Conditions
For the Preconstruction Phase, AIA Document A201 TM -2007, as amended by the parties, General Conditions of the
Contract for Construction, shall apply only as specifically provided in this Agreement. For the Construction Phase,
the general conditions of the contract shall be as set forth in A201 2007, as amended by the parties, which document
is incorporated herein by reference. The term "Contractor" as used in A201 -2007, as amended by the parties, shall
mean the Construction Manager. Any reference to the AIA Document A201 -2007, General Conditions of the
Contract for Construction, shall mean "as amended by the parties ".
ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES
The Construction Manager's Preconstruction Phase responsibilities are set forth in Sections 2.1 and 2.2. The
Construction Manager's Construction Phase responsibilities are set forth in Section 2.3. The Owner and
Construction Manager may agree, in consultation with the Architect, for the Construction Phase to commence prior
to completion of the Preconstruction Phase, in which case, both phases will proceed concurrently. The Construction
Manager shall identify a representative authorized to act on behalf of the Construction Manager with respect to the
Project.
§ 2.1 Preconstruction Phase
§ 2.1.1 The Construction Manager shall provide a preliminary evaluation of the Owner's program, schedule and
construction 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
When Project requirements described in Section 3.1.1 have been sufficiently identified, the Construction Manager
shall prepare a Preliminary Project Schedule, which Schedule shall be subject to 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
AIA Document A133 - 2009 (formerly Al2lnC[5o - 2003) . Cop; right , 3991, 2003 and 2009 btr - The American Institute of Architects. All rights
resexved. WAMNG: This AIA Document is protected by U.S. Copyright Lax and International Treaties. Unauthorized reproduction or
distribution of this AIA 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 draft � - sae produced by AIA software at 09:58:37 on 09 '05/!:012 under order No. 7448360773_1 which
expires on 02,'141'2013, and is not for resale.
User Notes:
{944064589}
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 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 Based on the preliminary design and other design criteria prepared by the Architect, the Construction
Manager shall prepare preliminary estimates of the Cost of the Work or the cost of program requirements using area,
volume or similar conceptual estimating techniques for the Architect's review and Owner's approval. If the
Architect or Construction Manager suggests alternative materials and systems, the Construction Manager shall
provide cost evaluations of those alternative materials and systems.
§ 2.1.5,2 As the Architect progresses with the preparation of the Schematic Design, Design Development and
Construction Documents, the Construction Manager shall prepare and update, at appropriate intervals agreed to by
the Owner, Construction Manager and Architect, estimates of the Cost of the Work of increasing detail and
refinement and allowing for the further development of the design until such time as the Owner and Construction
Manager agree on a Guaranteed Maximum Price for the Work. Such estimates shall be provided for the Architect's
review and the Owner's approval. The Construction Manager shall inform the Owner and Architect when estimates
of the Cost of the Work exceed the latest approved Project budget and make recommendations for corrective action,
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 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 are acceptable to Owner and are within the Owner's budget to the extent
feasible.
§ 2.1.6 Subcontractors and Suppliers
The Construction Manager shall develop bidders' interest in the Project.
§ 2.1.7 The Construction Manager shall prepare, for the Architect's review and the Owner's acceptance, a
procurement schedule for items that must be ordered well in advance of construction. The Construction Manager
shall expedite and coordinate the ordering and delivery of materials that must be ordered well in advance of
construction. If the Owner agrees to procure any items prior to the establishment of the Guaranteed Maximum Price,
the Owner shall procure the items on terms and conditions acceptable to the Construction Manager. Upon the
establishment of the Guaranteed Maximum Price, the Owner shall assign all contracts for these items to the
Construction Manager and the Construction Manager shall thereafter accept responsibility for them.
§ 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, but the Construction Manager shall exercise reasonable care in preparing and
reviewing same. 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 Notices and Compliance with Laws
The Construction Manager shall comply with applicable laws, statutes, ordinances, codes, rules and regulations, and
lawful orders of public authorities applicable to its performance under this Contract, and with equal employment
AIA DpCumant A133- - 2009 (formerly Al21 -k2do - 7003). Copyright ° 1991, 2003 and 2003 b' The American Institute of -rchitects. All rights
reserved. WA&NIN6e This AIA Document is protected by D.S. Copyright Law and International Treaties. Unauthorised reproduction or
diatribution of this AIA' 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 draft was produced h, AIA softtiare at 09:58:37 on 09,'05/2012 under Order No.744836E7 - 3 1 Which
expires on 02,'14;2013, and is not for resale.
User Notes: (944064589)
opportunity programs, and other programs as may be required by governmental and quasi governmental authorities
for inclusion in the Contract Documents.
§ 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, quaiity.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 Construction Manager shall include with the Guaranteed Maximum Price proposal a written statement of
its basis, which shall include the following:
.1 A list of the Drawings and Specifications, including all Addenda thereto, and the Conditions of the
Contract;
.2 A list of the clarifications and assumptions made by the Construction Manager in the preparation of
the Guaranteed Maximum Price proposal, including assumptions under Section 2.2.2, to supplement
the information provided by the Owner and contained in the Drawings and Specifications;
.3 A statement of the proposed Guaranteed Maximum Price, including a statement of the estimated Cost
of the Work organized by trade categories or systems, allowances, contingency, and the Construction
Manager's Fee 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.. ;
.4 The anticipated date of Substantial Completion upon which the proposed Guaranteed Maximum Price
is based; and
.5 A date by which the Owner must accept the Guaranteed Maximum Price.
.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.
§ 2.2.4 The Construction Manager shall meet with the Owner and Architect to review the Guaranteed Maximum
Price proposal. In the event that the Owner and Architect discover any inconsistencies or inaccuracies in the
PIA Document A133°f - 2009 (formerly Al2lwCMO - 2003). Copyright 1991, 2003 and k009 h• The American Institute of Architects. All rights
reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or
distribution of this Ala 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 draft eras produced by ATA software at 09:58.37 On 09,'05.2012 under Order No.744836 773_1 which
expires on 02/14/2013, and is not for resale.
User Notes. (944064589)
information presented, they shall promptly notify the Construction Manager, who shall make appropriate
adjustments to the Guaranteed Maximum Price proposal, its basis, or both.
§ 2.2.5
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, this Agreement shall not be effective or binding upon. Owner. 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.
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.
§ 2.2.7 The Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work prior to
the commencement of the Construction Phase, unless the Owner provides prior written authorization for such costs.
§ 2.2.8 The Owner shall authorize the Architect to provide the revisions to the Drawings and Specifications to
incorporate the agreed -upon assumptions and clarifications contained in the Guaranteed Maximum Price
Amendment. The Owner shall promptly furnish those revised Drawings and Specifications to the Construction
Manager as they are revised. The Construction Manager shall notify the Owner and Architect of any inconsistencies
between the Guaranteed Maximum Price Amendment and the revised Drawings and Specifications.
§ 2.2.9 The Construction Manager shall include in the Guaranteed Maximum Price any feesfor the Work provided by
the Construction Manager that are legally enacted, whether or not yet effective, at the time the Guaranteed
Maximum Price Amendment is executed. The Guaranteed Maximum Price shall not include in the Cost of the Work
any taxes from which Owner is exempt.
§ 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
§ 2.3.1.1
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. .
§ 2.3.1.2 The Construction Phase shall commence upon the Owner's acceptance of the Construction Manager's
Guaranteed Maximum Price proposal or the Owner's issuance of a Notice to Proceed, whichever occurs earlier.
§ 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
AMA Document A133— - 2009 (formerly Al21 -cma - 2DD3). Copyright ' 1991, 2 03 and 2009 bj The American Institute of :,rchitect3. All rights
reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treatise. Unauthorised reproduction or
distribution of this AMA` Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the 7
maximum extent possible under the law. This draft was produced by AIA software at 09:58:37 on 09/05 under Order No.7448366773_1 'hxch
expires on 02/14%2013, and is not for resale.
User Noteal 0440645891
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. Under no circumstances may the Construction Manager alter any bid or proposal submitted by a
subcontractor without the prior written approval of Owner.
§ 2.3.2.2.1 The Construction Manager shall include the following specific notices in the information to proposers:
.1 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;
.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 756.02."
§ 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 or other agreements shall conform to the applicable payment provisions of this Agreement,
and shall not be awarded on the basis of cost plus a fee without the prior consent of the Owner. If the Subcontract is
awarded on a cost -plus a fee basis, the Construction Manager shall provide in the Subcontract for the Owner to
receive the same audit rights with regard to the Subcontractor as the Owner receives with regard to the Construction
Manager in Section 6.11 below.
§ 2.3.2.4 if the Construction Manager recommends a specific bidder that may be considered a "related party"
according to Section 6. 10, then the Construction Manager shall promptly notify the Owner in writing of such
relationship and notify the Owner of the specific nature of the contemplated transaction, according to Section 6.10.2.
§ 2.3.2.5 The Construction Manager shall schedule and conduct weekly or otherwise regularly- scheduled meetings to
discuss such matters as procedures, progress, coordination, scheduling, and status of the Work. The Construction
Manager shall prepare and promptly distribute minutes to the Owner and Architect.
§ 2.3.2.6 Upon the execution of the Guaranteed Maximum Price Amendment, the Construction Manager shall
prepare and submit to the Owner and Architect a construction schedule for the Work and submittal schedule in
accordance with Section 3.10 of A201 -2007, as amended by the parties.
§ 2.3.2.7 The Construction Manager shall record the progress of the Project. On a monthly basis, or otherwise as
agreed to by the Owner, the Construction Manager shall submit written progress reports to the Owner and Architect,
showing percentages of completion and other information required by the Owner. The Construction Manager shall
also keep, and make available to the Owner and Architect, a daily log containing a record for each day of weather,
portions of the Work in progress, number of workers on site, identification of equipment on site, problems that
might affect progress of the work, accidents, injuries, and other information required by the Owner. 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.
§ 2.3.2.8 The Construction Manager shall develop a system of cost control for the Work, including regular
monitoring of actual costs for activities in progress,estimates for uncompleted tasks, and changes to the Work
approved by Owner,. The Construction Manager shall identify variances between actual and estimated costs and
report the variances to the Owner and Architect and shall provide this information in its monthly reports to the
Owner and Architect, in accordance with Section 2.3.2.7 above.
AIA Document A333- - 2009 (formerly Al21 -CMC - 20031. Copyright ' 1991, 2003 and 2009 by The AmeriC3n Institute of Architects. All rights
reserved. WARNING: This AIA' Document is protected by 9.3. Copyright Law and international Treaties. Unauthorized reproduction or
distribution of this AIA' 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 draft was produced b? AIA software at 09:58:37 on 09/05/2012 under Order Ne.744836G7 ^3 1 ,hieh
expires on 02il4/2013, and is not for resale.
9aer Notesi (944064589)
§ 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 A20 TM -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 A201 -2007, as amended, shall apply to both the Preconstruction and Construction Phases.
§ 2.5 Hazardous Materials
Section 10.3 of A201 -2007, as amended, shall apply to both the Preconstruction and Construction Phases.
ARTICLE 3 OWNER'S RESPONSIBILITIES
§ 3.1 Information and Services Required of the Owner
§ 3.1.1 The Owner shall provide information with reasonable promptness, regarding requirements for and limitations
on the Project, including a written program which shall set forth the Owner's objectives, constraints, and criteria.,
including schedule, space requirements and relationships, flexibility and expandability, special equipment, systems
sustainability and site requirements.
§ 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 The Owner shall furnish tests, inspections and reports required by law and as otherwise agreed to by the
parties, such as structural, mechanical, and chemical tests, tests for air and water pollution, and tests for hazardous
materials.
§ 3.1.4.2 The Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations
for the site of the Project, and a 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; designated wetlands;
adjacent drainage; rights -of -way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and
contours of the site; locations, dimensions and necessary data with respect 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 the information on the survey shall be referenced to a Project benchmark.
§ 3.1.4.3 The Owner, 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, shall famish services of geotechnical engineers,
AIA Document A133 - 2009 (formerly A322 -CMC - 2003). Copyright 1991, 2003 and 2006 b The American Institute of Architects. All rights
reserved. WARNING. This AIA Document is protected by U.S.. Copyright Law and International Treaties. Mautborized reproduction or 9
distribukion of this ATA Document, or any portion of it, may reault in severe civil and criminal penalties, and will be prosecuted to the
maximum extent possible under the law. This draft vas produced by AIA soft at 09:58:37 on 07,'05/2012 under Order No.7440366773_1 which
expires on 02/14!2013, and is not for resale.
Dees Notes:
(944064589)
which may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation
tests, evaluations of hazardous materials, seismic evaluation, ground corrosion tests and resistivity tests, including
necessary operations for anticipating subsoil conditions, with written reports and appropriate recommendations.
Owner makes no warranty regarding the sufficiency of such services or the accuracy of any documents produced by
such geotechnical engineers. Such documents shall be provided by Owner 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.
§ 3.1.4.4 During the Construction Phase, the Owner shall furnish information or services required of the Owner by
the Contract Documents with reasonable promptness 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_. The Owner shall
also furnish any other information or services under the Owner's control and relevant to the Construction Manager's
performance of the Work with reasonable promptness after receiving the Construction Manager's written request for
such information or services 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. Owner makes no warranty regarding the
sufficiency or accuracy of such information or services. Such information or services shall be provided by Owner
for information only and are not warranted or represented to show the conditions at the Projectsite accurately.
Construction Manager may use the information at its own risk and shall use customary precaution relating to the
performance of the Work.
§ 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.
§ 3.2.1 Legal Requirements. The Owner shall furnish all legal, insurance and accounting services. including auditing
services, that may be reasonably necessary at any time for the Project to meet the Owner's needs and interests.
§ 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. If additional services by the Architect are required or caused by or are attributable to the fault of the
Construction Manager„ the Construction Manager shall be responsible for the cost of such additional Architect's
services.
§ 3.4 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
§ 4.1 Compensation
§ 4.1.1 For the Construction Manager's Preconstruction Phase services, the Owner shall compensate the
Construction Manager as follows:
Im,luded m Article 5
§ 4.1.2 For the Construction Manager's Preconstruction Phase services described in Sections 2.1 and 2.2:
(Insert amount of, or basis for, compensation and include a list of reimbursable cost items, as applicable.)
{%_xe,$000
§ 4.1.3 If the Preconstruction Phase services cor ered by this Agreement have not been completed within <i o ( « » )
months of the date of this Agreement, through no fault of the Construction Manager, the Construction Manager's
compensation for Preconstruction Phase services shall be equitably adjusted.
AMA Document A133m - 2009 (formerly Al21°CMc - 2003). Cop 1991, 7003 and 2009 by The :,meriean Institute of Architects. All rights
reserved. WARNING: Thin Ale Document is protected by U.S. Copyright Lam and International Treaties. Unauthorized reproduction or
distribution of this AMA' Document, or any portion of it, may result in severe civil and criminal penalties, and will he prosecuted to the 10
maximum extent possible under the law. This draft ias produced b; AIA Software at 09:59:37 On 09/05/2012 under Order Fo. 7449?66773_1 which
expirer on 02,14/2013, and is not for resale.
User Notes: (944064582)
§ 4.1.4 Compensation based on Direct Personnel Expense includes the direct salaries of the Construction Manager's
personnel providing Preconstruction Phase services on the Project and the Construction Manager's costs for the
mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory
employee benefits, insurance, sick leave, holidays, vacations, employee retirement plans and similar contributions.
§ 4.2 Payments
§ 4.2.1 Unless otherwise agreed, payments for services shall be made monthly in proportion to services performed.
§ 4.2.2 Payments are due and payable as provided in Section 7.1.3 below, and in accordance with the provisions of
the Texas Government Code, Section 2251.021,including computation of interest on unpaid amounts.
ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES
§ 5.1 For the Construction Manager's performance of the Work as described in Section 2.3, the Owner shall pay the
Construction Manager the Contract Sum in current funds. The Contract Sum is the Cost of the Work as defined in
Section 6.1.1 plus the Construction Manager's Fee.
§ 5.1.1 The Construction Manager's Fee:
(State a lump sum, percentage of Cost of the Work or otherprovision for determining the Construction Afanager's
Fee.)
The Construction Manager's compensation shall be two and one - quarter percent (2.25 %) 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, not to exceed the percentages shown below:
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 one - quarter percent (2.25 %) shall not apply to
the cost of these additional reimbursement items.
§ 5.1.2 The method of adjustment of the Construction Manager's Fee for changes in the Work:'
« >;
§ 5.1.3 Limitations, if any, on a Subcontractor's overhead and profit for increases in the cost of its portion of the
Work:
§ 5.1.5 Unit prices, if any:'
(Identify and state the unit price; state the quantity limitations, if any, to which the unit price will be applicable.)
Item
Units and Limitations Price per Unit ($0.00)
AIA Document A13a - 2009 (formerly Al21"cma - 2003). C09_1right = 1991, 2003 and 2009 by The :,merican Institute of Architects. All rights
reserved. WAF ING: This AMA Document in protected by R.S. Copyright Law and International Treaties. Unauthorised reproduction or
distribution of this AMA' Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the 3.1
maximum extent possible under the law. This draft '' %as proluced by AIA soft +are at 09:58:37 on 09,05/.x012 under order NO.74483rG -73 1 �rhich
expires on 02/J.', 015, and is not for resz.le.
User Motes:
(9440G45E7)
§ 5.2 Guaranteed Maximum Price
§ 5.2.1 The Construction Manager guarantees that the Contract Sum shall not exceed the Guaranteed Maximum Price
set forth in the Guaranteed Maximum Price Amendment, as it is amended from time to time. To the extent the Cost
of the Work exceeds the Guaranteed Maximum Price, the Construction Manager shall bear such costs in excess of
the Guaranteed Maximum Price without reimbursement or additional compensation from the Owner.
(Insert specific provisions if the Construction Manager is to participate in any savings.)
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 Guaranteed Maximum Price, provided, however, that 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 %) 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.
Construction Manager shall return to the Owner all unused funds from any contingency account upon completion of
the Project.
§ 5.2.2 The Guaranteed Maximum Price is subject to additions and deductions by Change Order as provided in the
Contract Documents and the Date of Substantial Completion shall be subject to adjustment as provided in the
Contract Documents.
§ 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. All changes must be in writing to be effective.
§ 5.3.2 Adjustments to the Guaranteed Maximum Price on account of changes in the Work subsequent to the
execution of the Guaranteed Maximum Price Amendment may be determined by any of the methods listed in
Section 7.3.3 of AIA Document A201 -2007, General Conditions of the Contract for Construction. Any costs
caused by or attributable to the fault of the Construction Manager, including any change orders, shall be borne by
the Construction Manager, and shall not be included in the Owner's costs.
§ 5.33 In calculating adjustments to subcontracts (except those awarded with the Owner's prior consent on the basis
of cost plus a fee), the terms "cost" and "fee" as used in Section 7.3.3.3 of AIA Document A201 -2007 and the term
"costs" as used in Section 7.3.7 of AIA Document A201 -2007 shall have the meanings assigned to them in AIA
Document A201-2007 and shall not be modified by Sections 5.1 and 5.2, Sections 6.1 through 6.7, and Section 6.8
of this Agreement. Adjustments to subcontracts awarded with the Owner's prior consent on the basis of cost plus a
fee shall be calculated in accordance with the terms of those subcontracts.
§ 5.3.4 In calculating adjustments to the Guaranteed Maximum Price, the terms "cost" and "costs" as used in the
above - referenced provisions of AIA Document A201 -2007 shall mean the Cost of the Work as defined in Sections
6.1 to 6.7 of this Agreement and the term "fee" shall mean the Construction Manager's Fee as defined in Section 5.1
of this Agreement.
§ 5.3.5 If no specific provision is made in Section 5.1.2 for adjustment of the Construction Manager's Fee in the case
of changes in the Work, or if the extent of such changes is such, in the aggregate, that application of the adjustment
provisions of Section 5.1.2 will cause substantial inequity to the Owner or Construction Manager, the Construction
Manager's Fee shall be equitably adjusted on the same basis that was used to establish the Fee for the original Work,
and the Guaranteed Maximum Price shall be adjusted accordingly.
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, unless such costs are caused by or attributable to
the fault of the Construction Manager. Such costs shall be at rates not higher than the standard paid at the place of
AIA Document A133a - 2009 (formerly Al22°CMc - 2003). Copyright f 1991, ^003 and 2009 b, The American Institute of Architects. All rights
reserved. SPANNING. This AIA' Document is protected by U.S. Copyright Law and International Treaties. Dnauthoriaed reproduction or 12
distribution of this ALA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted E.. the
maximum extent possible under the law. This draft was produced krr AIA soft-are at 09:58:37 on 09/05,2012 under Order No.7448366773_1 which
expires on 02,'14.'2013, and is not for resale.
User Notese (944064589)