AGREEMENT
BETWEEN OWNER AND
DESIGN/BUILD CONTRACTOR
This
Agreement is made as of ,
20 (the “Effective Date”), by
and between
The Owner:
The Board of Regents of The
University of Texas System
c/o U. T. System Office of
Facilities Planning and Construction
220 West 7th Street
Austin, Texas 78701
and
The Design/Build Contractor:
For the following Project:
The Project Architect is:
The Owner and the Design/Build Contractor agree as
follows:
This
form of agreement for Design/Build project delivery has been prepared by the
Office of General Counsel for the University of Texas System for use on U.T.
System projects. The legal terms of this
agreement should not be altered without the approval of the Office of General
Counsel.
Use
this form for all U.T. System Design/Build projects after September 1,
2003.
TABLE OF CONTENTS
ARTICLE
1
SCOPE OF WORK
2
CONTRACT DOCUMENTS
3
DEFINITIONS
4
D/B CONTRACTOR’S GENERAL RESPONSIBILITIES
5
PRE-CONSTRUCTION PHASE
5.1 PRE-CONSTRUCTION SERVICES
5.1.1
General Coordination
5.1.2
Constructability Program
5.1.3
Budget and Cost Consultation
5.1.4
Coordination of Design and Construction Contract Documents
5.1.5
Construction Planning and Bid Package Strategy
5.1.6
Obtaining Bids/Proposals for the Work
5.1.7
Safety
5.2 DESIGN SERVICES
5.2.1
General Responsibilities
5.2.2
Pre-Design Stage
5.2.3
Schematic Design Stage
5.2.4
Design Development Stage
5.2.5
Construction Documents Stage
5.2.6
Review Drawings
5.2.7
Additional Design Services
6
PRE-CONSTRUCTION PHASE FEE
7
GUARANTEED MAXIMUM PRICE PROPOSAL
8
CONSTRUCTION PHASE SERVICES
8.1 General Responsibilities
8.2 Construction Contract
Administration
8.3 D/B Contractor’s Personnel
and Subconsultants
9
OWNER’S RESPONSIBILITIES
10 OWNERSHIP AND USE OF
DOCUMENTS
11 TIME
12 PAYMENTS
12.1
General Requirements
12.2
Pre-Construction Phase Payments
12.3
Construction Phase Payments
13 DIRECT
CONSTRUCTION COST
13.1
General Conditions Costs
13.2
Cost of the Work
13.3
D/B Contractor’s Contingency
14 CONSTRUCTION
PHASE FEE
15 CONTRACT SAVINGS,
ALLOWANCES, REBATES AND REFUNDS
ARTICLE
16 PRE-EXISTING
CONDITIONS AND DESIGN ERRORS AND OMISSIONS
17 BONDS AND INSURANCE
18 DISPUTE
RESOLUTION
19 PROJECT
TERMINATION & SUSPENSION
20 INDEMNITY
21 SPECIAL
WARRANTIES
22 CERTIFICATION
OF NO ASBESTOS
23 MISCELLANEOUS
PROVISIONS
24 COMPENSATION
24.1
Construction Cost Limitation
24.2
Pre-Construction Phase Services Fee
24.3
Construction Phase Services Fee
24.4
Limitation on General Condition Costs
24.5
Additional Design Services Fee
24.6
Reimbursable Expenses
25 OTHER TERMS AND CONDITIONS
25.1
Time of Completion
25.2
Liquidated Damages
25.3
Design Document Review Sets & Estimated Construction Cost Reports
25.4
Notices
25.5
Party Representatives
25.6
Site Observation Requirements
25.7
Job Conferences
25.8
Partnering
26
EXHIBITS
A.
Uniform General and Supplementary
Conditions
B.
Additional Contract Documents and
Specifications
C.
Allowable General Conditions Line
Items
D.
Guaranteed Maximum Price Proposal Form and Attachments 1 and 2
E.
Security Bond
F.
D/B’s Personnel and Monthly Salary
Rates
G.
Constructability Implementation
Program
H.
Policy on Utilization, HUB’s
I.
HUB Subcontracting Plan for
Pre-Construction Phase Services
J.
Additional Services Proposal
K.
Project Architect’s Personnel, Titles
and DSE Rates
L.
Hazardous Material Abatement General
Scope of Work
ARTICLE 1 SCOPE OF WORK
The Design/Build Contractor has overall responsibility
for and shall provide complete Pre-Construction Phase Services and Construction
Phase Services and furnish all design services, materials, equipment, tools and
labor as necessary or reasonably inferable to complete the Project, or any
phase of the Project, in accordance with the Owner’s requirements and the terms
of this Agreement.
ARTICLE
2 CONTRACT DOCUMENTS
The Contract Documents form the entire and
integrated Contract between Owner and Design/Build Contractor and supersede all
prior negotiations, representations or agreements, written or oral. The Contract Documents consist of:
2.1
This Agreement and all attachments hereto;
2.2
The Uniform General and Supplementary Conditions for Building
Construction Contracts for the University of Texas System (“Uniform General and
Supplementary Conditions” or “UGC”);
2.3
Special Conditions and Division 1 Specifications prepared by the Owner;
2.4
Project Manuals developed for the design or construction of the
Project;
2.5
The Owner’s Design Guidelines;
2.6
The Campus Master Plan;
2.7
All Addenda issued prior to the Effective Date of this Agreement;
2.8
The HUB Subcontracting Plan for Design Phase Services;
2.9
The Guaranteed Maximum Price Proposal as executed by the parties;
2.10
The HUB Subcontracting Plan for Construction Phase Services when
accepted by the Owner;
2.11
All Additional Services Proposals when accepted by the Owner;
2.12
All Change Orders issued after the Effective Date of this Agreement;
2.13
The Drawings and Specifications developed by Design/Build Contractor
and accepted by Owner;
2.14
The Drawings and Specifications developed or prepared by Owner’s
independent consultants, if any, that are included in the Guaranteed Maximum
Price Proposal; and
2.15
Any other documents listed in this Agreement.
ARTICLE 3 DEFINITIONS
The terms, words and phrases used in the Contract
Documents shall have the meanings given in the Uniform General and Supplementary
Conditions and as follows.
3.1
“Construction Cost Limitation” or
“CCL” means the maximum monetary amount payable to the Design/Build Contractor
for all Construction Phase services,
materials, labor and other work required for completion of the Work in
accordance with the Contract Documents. The
CCL includes, without limitation, the General Conditions Costs, the Cost of the
Work, the Construction Phase Fee and the Design/Build Contractor’s
Contingency. The CCL may be adjusted by
the parties for changes in the scope of the Project before or after acceptance
of the Guaranteed Maximum Price Proposal.
The CCL does not include the Design/Build
Contractor’s Pre-Construction Phase Fee, or
Owner’s Construction Contingency or Owner’s Special Cash Allowance.
3.2
“Construction Services” means the implementation and execution
of the construction work required by the Contract Documents. The construction phase of the Project may be
divided into different stages, each with different start and completion dates.
3.3
“Contract Sum” means the total amount of all compensation
payable to the Design/Build Contractor for the Project and shall not exceed the
sum total amount of the Pre-Construction Phase Services Fees plus the
Guaranteed Maximum Price Proposal accepted by the parties, subject to
adjustment for Additional Services or Change Orders. Any costs that exceed the Contract Sum shall
be borne solely by Design/Build Contractor without reimbursement by Owner.
3.4
“Design Consultant” means any licensed professionals or firms,
other than the Project Architect, engaged by Owner as independent consultants
for the Project Improvements.
3.5
“Design Services” means all professional
services required to fulfill the Pre-Construction Phase and Additional design
obligations of this Agreement, including, but not limited to, programming, schematic
design, design development and construction documents.
3.6
“Direct Construction Cost” means the sum of the amounts that the Design/Build Contractor actually and necessarily
incurs for General Conditions Costs, Cost of
the Work and Design/Build Contractor’s Contingency during the Construction
Phase as allowed by this Agreement.
Direct Construction Cost does not include Pre-Construction Phase
Services Fees or Construction Phase Fees.
3.7
“Direct Salary Expense” or “DSE” means the actual gross salary,
expressed on an hourly wage basis, of Design/Build Contractor’s and Project
Architect’s employees and consultants directly engaged on the Project. For DSE purposes, Project Architect’s
employees includes, but is not limited to, architects, officers, principals,
engineers, designers, job captains, draftspersons, and specifications writers,
who are performing consultation, research or design, or who are producing
drawings, specifications, plans, or other documents pertaining to the Project,
or who are performing services that are directly attributable to and necessary
for the Project.
3.8
“Estimated Construction Cost” means the total cost of all
elements of the project, including, without limitation, all alternates,
allowances and contingencies, designed and specified by the Design/Build
Contractor. The Estimated Construction
Cost shall include, at current market rates with a reasonable allowance for
overhead, profit and price escalation, the cost of labor and materials
furnished by the Owner and any equipment which has been shown in the plans,
specified, and specially provided for by the Design/Build Contractor. Estimated Construction Cost does not include
Design Phase Fees. Estimated
Construction Cost does not include the cost of the land, rights-of-way, or any
costs that are the responsibility of the Owner.
3.9
“General Conditions Costs” means costs
incurred and minor work performed on the jobsite by the Design/Build Contractor without the need for competitive bids/proposals. The allowable General Conditions items are
further described in the Agreement and limited by attached exhibit.
3.10
“Guaranteed Maximum Price” or “GMP” means the amount
proposed by the Design/Build Contractor and accepted by the Owner as the maximum
cost to the Owner for construction of the Work in accordance with the Contract
Documents. The GMP includes Design/Build
Contractor’s Construction Phase Fee, the General Conditions Costs, the Cost of
the Work, Design/Build Contractor’s Construction Contingency amount, and the
Owner’s Construction Contingency amount and Owner’s Special Cash
Allowance.
3.11
“Monthly Salary Rate” means the amount agreed to by
the Owner that can be used on Applications for Payment throughout the
Construction Phase to account for the services of Design/Build Contractor’s
salaried personnel assigned to the Project.
A Monthly Salary Rate must be established for each salaried person and
must be approved in writing by the Owner in advance of any Application for
Payment seeking reimbursement for that person.
The Monthly Salary Rate is for convenience only and any payments made
for Design/Build Contractor’s personnel are subject to audit to determine the
actual cost of the wages and allowable employer contributions incurred by the
Design/Build Contractor for services performed for the Project.
3.12
“Preliminary Project Cost” or “PPC” means the total estimated
cost of the entire Project, including design, construction, and other
associated costs and services which is established prior to the commencement of
design.
3.13
“Project Architect” means the professional
architect or engineer employed by the Design/Build Contractor to perform all or
part of the Design Services or the Construction Contract Administration
Services in accordance with the Contract.
The Project Architect and its professional consultants must be qualified
to perform the Design Services and the Construction Contract Administration
Services and be licensed in the State of Texas in their respective
professions.
3.14
“Project Team” means the Owner, Design/Build Contractor, Project
Architect, any separate contractors employed by Owner, and other consultants
employed for the purpose of programming, design, and construction of the
Project. The constitution of the Project
Team may vary at different phases of the Project. The Project Team will be designated by Owner
and may be modified from time to time by Owner.
3.15
“Standards and Standard
Specifications” means the construction and design requirements and
standards of The University of Texas System Office of Facilities Planning and
Construction (“OFPC”), and various building and life safety codes as specified
in the OFPC Owner’s Design Guidelines which are incorporated by reference.
3.16
“Subcontractor” means a person or entity who has an agreement
with the Design/Build Contractor to perform any portion of the Work. The term Subcontractor does not include the
Project Architect or any person or entity hired directly by the Owner.
3.17
“Total Project Cost” or
“TPC” means the total budget established for the Project by the Board of
Regents or the Chancellor of The University of Texas System at the end of the
design development phase (subject to subsequent modification by Owner), which
includes but is not limited to professional services costs, Design/Build
Contractor’s costs, the costs of the General Conditions items, furniture,
fixtures and equipment costs, landscaping costs, moving costs, and other
miscellaneous costs.
3.18
“Work” means the provision of all services, labor, materials,
supplies, and equipment which are required or reasonably inferable to complete
the Project in strict accordance with the requirements of the Contract
Documents. Work includes, but is not
limited to, the Pre-Construction Phase Services, Design Services, the GMP proposal,
the Construction Phase Services, and any Additional Services and other services
required. The term “reasonably
inferable” takes into consideration the understanding of the parties that not
every detail will be shown on the Drawings and included in the Specifications.
ARTICLE 4 DESIGN/BUILD
CONTRACTOR’S GENERAL RESPONSIBILITIES
4.1
Design/Build Contractor shall perform all services
specifically allocated to it by the Contract Documents as well as those
services reasonably inferable from the Contract Documents as necessary for
completion of the Work and the Project.
Design/Build Contractor agrees to perform these services using its best
efforts, skills, judgments and abilities.
4.2
Design/Build Contractor shall coordinate with the Project
Architect and endeavor to further the interests of the Owner and the
Project. Design/Build Contractor shall
furnish Pre-Construction Phase Services and Construction Phase Services and
complete the Project in an expeditious and economical manner consistent with
the interests of the Owner and in accordance with the Project Schedule.
4.3
Within seven (7) days of receipt of the Notice to Proceed
with Pre-Construction Phase Services, the Design/Build Contractor shall submit
for the Owner’s review and acceptance a CPM Milestone Schedule in accordance
with the Project Planning and Scheduling requirements of the Owner’s
Specifications. The CPM Milestone
Schedule shall encompass the entire Project duration, including performance of
the both the Pre-Construction Phase Services and the Construction Phase
Services with sufficient total Project float to allow for a minimum of
Construction Phase float as specified.
4.4
The CPM Milestone Schedule for the Pre-Construction Phase
of the Project shall include reasonable amounts of time for the Owner’s review
and approval of design drawings and specifications and for approval of
authorities having jurisdiction over the Project.
4.5
Upon acceptance of the CPM Milestone Schedule, it shall
become the baseline for evaluating performance of the Project and Design/Build
Contractor shall monitor the progress of the Project in relation to the CPM
Milestone Schedule and provide the Owner with at least monthly updates and
status reports as outlined in the Owner’s Specifications. The time periods established in the CPM
Milestone Schedule for the Pre-Construction Phase and the Construction Phase
and the overall duration of the Project shall not be changed without written
consent from the Owner. Modifications to
the CPM Milestone Schedule logic, coding, layouts and filters, detail, and
activity durations shall be in accordance with the Owner’s Specifications.
4.6
Design/Build Contractor shall designate a representative authorized to act on the Design/Build Contractor’s behalf with respect to the Project.
4.7
Design/Build Contractor shall establish procedures for
communication and coordination among the Project Team, Subcontractors, separate
contractors, and others with respect to all aspects of the construction of the
Project, and implement such procedures.
4.8
Design/Build Contractor shall establish and maintain a
numbering and tracking system for all Project records, including changes,
requests for information, submittals, and supplementary instructions and shall
provide updated records at each Owner’s meeting and when requested.
4.9
Fast Track/Multiple Completion Times. If the Owner
elects to “fast-track” or develop the Project in multiple stages, Design/Build Contractor shall organize and perform its services as
appropriate to each stage. Each stage of
the Project may have a unique schedule for completion and a specific
Construction Cost Limitation, at Owner’s discretion.
4.10
Design/Build Contractor shall attend and participate in
Owner’s “Partnering” Program for all phases of the Project.
4.11
Design/Build Contractor shall identify to the Owner the employees and
other personnel that it will assign to the Project and provide the Monthly
Salary Rate for each of them.
Design/Build Contractor shall also identify any consultants that will be
performing services for the Project. After
execution of this Agreement by the Owner, Design/Build Contractor shall not
remove or replace the persons or entities assigned to the Project except with
the Owner’s written consent, which consent shall not be unreasonably withheld. Design/Build Contractor shall not assign to
the Project or contract with any person or entity to which Owner has a
reasonable objection. Design/Build
Contractor shall promptly update the list of persons and consultants if they
change during the course of the Project.
4.12
The Owner’s Policy on the Utilization of Historically Underutilized
Businesses (“Policy”) is described in an attached exhibit. Design/Build Contractor, as a provision of
the Agreement, must comply with the requirements of the Policy and adhere to
the HUB Subcontracting Plans submitted for Pre-Construction Phase and
Construction Phase Services. No changes
to the HUB Subcontracting Plans can be made by the Design/Build Contractor
without the written approval of Owner in accordance with the Policy.
ARTICLE 5 PRE-CONSTRUCTION
PHASE
The
Pre-Construction Phase shall be deemed to commence upon the date specified in a
Notice to Proceed with Pre-Construction Phase Services issued by Owner and
shall continue through completion of the Construction Documents and procurement
of all major Subcontractor agreements.
Design/Build Contractor is not entitled to reimbursement for any costs
incurred for Pre-Construction Phase Services performed before issuance of the
Notice to Proceed. Pre-Construction
Phase Services may overlap Construction Phase Services. The Design/Build Contractor shall perform the
following Pre-Construction Phase Services.
5.1
PRE-CONSTRUCTION SERVICES
5.1.1
General Coordination
5.1.1.1
The Design/Build Contractor’s Pre-Construction Phase Services team
shall attend Project Team meetings with the Owner, the Owner’s representatives,
and the Project Architect at regularly scheduled intervals throughout the
Pre-Construction Phase. Frequent Project
Team meetings are anticipated prior to the Owner’s acceptance of the GMP and
during completion of the Construction Documents.
5.1.1.2
Provide a preliminary evaluation of the Owner’s Design Criteria and the
Construction Cost Limitation, each in terms of the other.
5.1.1.3
Review and understand the standards and requirements in Owner’s Specifications
and perform all services in accordance with those standards and requirements.
5.1.1.4
Visit the site and inspect the existing facilities, systems and
conditions to insure an accurate understanding of the existing conditions as
required.
5.1.1.5
Participate as a member of the Project Team in the development of the
Project Facility Program if such program has not been developed prior to the
Effective Date of this Agreement.
5.1.1.6
Provide recommendations and information to the Project Team on: site
usage and site improvements; building systems, equipment and construction
feasibility; selection and availability of materials and labor; time
requirements for installation and construction; assignment of responsibilities
for safety precautions and programs; temporary Project facilities; equipment,
materials and services for common use of the Design/Build Contractor and
Owner’s separate contractors, if any; cost factors, including costs of
alternative materials or designs, preliminary budgets, and possible cost
savings; recognizing and tracking the resolution of conflicts in the proposed
Drawings and Specifications; methods of delivery of materials, systems, and
equipment; and any other matters necessary to accomplish the Project in
accordance with the Project Schedule (as defined below) and the CCL.
5.1.1.7
Assist the Owner in selecting and directing the services
of surveyors, soils engineers, existing facility surveys, testing and balancing, environmental surveys or other
special consultants hired by the Owner to develop additional information for
the design or construction of the Project.
5.1.1.8
At Owner’s request, attend public meetings and hearings concerning the
development and schedule of the Project.
5.1.2
Constructability Program
5.1.2.1
Implement and conduct a constructability
program to identify and document Project cost and schedule savings opportunities. The
constructability program shall follow accepted industry practices and be in
accordance with the requirements of the attached exhibit. Whenever the term “value engineering” is used
in conjunction with this Agreement or the Project, it has its commonly accepted
meaning within the construction industry and does not imply the practice of
professional engineering without a license.
If any value engineering activities constitute the professional practice
of engineering, then such activities shall be performed by an engineer licensed
in Texas.
5.1.2.2
Prepare a “Constructability Report” that
identifies items that, in the Design/Build Contractor’s opinion, may negatively impact
construction of the Project. The
Constructability Report shall address the overall coordination of Project
Drawings, Specifications, and details and identify discrepancies that may
generate Change Orders or claims once Project construction commences. The Constructability Report shall be updated
at least monthly during the Pre-Construction Phase.
5.1.2.3
Provide and implement a system for tracking questions,
resolutions, decisions, directions and other information matters
that arise during the development of the Drawings and Specifications for the
Project. The decision tracking system
shall be in a format approved by the Owner and updated at least monthly during
the Pre-Construction Phase.
5.1.3
Budget and Cost Consultation
5.1.3.1
The Design/Build Contractor is responsible for preparing
and updating all procurement and construction
cost estimates and distributing them to the Project Team throughout the
duration of the Project.
5.1.3.2
Provide Estimated Construction Cost (ECC) reports at the
required stages of completion of the schematic design, design development, and
construction document stages of the Project.
The Estimated Construction Cost reports for the design development and
construction document stages shall be detailed estimates derived from cost quantity surveys based on unit prices for labor,
materials, overhead and profit, organized in Construction Specifications
Institute Division 1-16 format for each portion of the Work.
5.1.3.3
Provide continuous cost consultation services
throughout the duration of the Project, including identification and tracking of decisions that affect the scope or quality of
the Project and providing ongoing updates of their cost and budget impact. Advise the Project Team immediately if the
Design/Build Contractor has reason to believe that the most current ECC will exceed
the Construction Cost Limitation
(CCL) or not meet Schedule requirements and recommend reasonable strategies for
bringing the Project in line with the CCL and the Schedule.
5.1.3.4
Design/Build Contractor shall promptly identify all
variances between estimated costs and actual costs during the Construction
Phase, and shall promptly report such variances to the Project Team along with recommendations for action, but in any event no more than two (2) business
days after acquiring such information.
5.1.3.5
Should any ECC exceed or fall
significantly below the approved CCL, the Owner and Design/Build Contractor shall negotiate
changes to the Project requirements or the CCL as required.
5.1.4
Coordination of Design and Construction Contract Documents
5.1.4.1
Review all Drawings,
Specifications, and other Construction Documents as they are developed by the
Project Architect during the schematic design, design development, and
construction document design stages of the Project.
5.1.4.2
Consult with Owner and Project
Architect on the selection of materials, equipment, component systems, and types of construction used on the Project. Advise Owner on site use, construction
feasibility, availability of labor and materials, procurement time
requirements, and construction coordination.
5.1.4.3
Advise Owner
of any error, inconsistency or omission discovered in the Drawings,
Specifications, and other Construction
Documents.
5.1.4.4
Advise Owner on reasonable adjustments in the Project scope, quality or other options
for keeping the Project cost within the CCL.
5.1.4.5
Review the Construction Documents for compliance
with all applicable laws, rules and regulations and with University of Texas
System requirements.
5.1.5
Construction Planning and Bid Package Strategy
5.1.5.1
Identify equipment or material requiring extended delivery times
and advise Owner on expedited procurement of those items. Advise Owner and Project Architect on the
preparation of performance specifications and requests for technical proposals
for the procurement and installation of systems and components and for the
procurement of long lead items. If
requested by Owner, and subject to Owner’s prior approval, issue requests for
technical proposals to qualified sources and receive proposals and assist in
their evaluation.
5.1.5.2
Make recommendations to the Project Team regarding
organization of the Construction Documents to facilitate
the bidding and awarding of construction subcontracts in a manner that promotes
the interests of the Project and the
Owner. These recommendations may
include, but are not limited to, phased or staged construction or multiple
separate contracts. The recommendations
shall take into consideration such factors as time of performance, type and
scope of work, availability of labor and materials, overlapping trade
jurisdictions, provisions for temporary facilities, comparisons of factory and
on-site production costs, shipping costs, code restrictions, the Owner’s goals
for HUB contractor participation, and other constraints.
5.1.5.3
Review the
Construction Documents with the Project Team to eliminate areas of conflict and
overlap in the work to be performed by the various Subcontractors or Owner’s
separate contractors.
5.1.5.4
Develop a bid/proposal package strategy in
coordination with the Project Architect that addresses the entire scope of Work
for each phase and stage of the Project.
In developing the bid/proposal package strategy, the Design/Build
Contractor shall identify all bid/proposal packages on which the Design/Build
Contractor intends to submit a self-performance bid/proposal. The bid/proposal package strategy shall be
reviewed with the Owner on a regular basis and revised throughout the buyout of
the Project so as to best promote the interests of the Project and the Owner.
5.1.5.5
Assist the Owner, the Project Architect, Owner’s other
consultants, and the Owner’s separate contractors in obtaining all applicable
risk management, code, and regulatory agency reviews and approvals for the Project
including, without limitation, the Texas Higher Education Coordinating Board,
the Texas Department of Licensing and Regulation, the State Fire Marshal, the
local fire department, and the Owner’s insurance provider.
5.1.5.6
Refine, implement and monitor required HUB
Subcontracting Plans to promote equal employment opportunity in the provision of goods and services to the Owner for
the Project.
5.1.5.7
Advise Owner of any tests to be performed,
and assist Owner in selecting testing laboratories and consultants, without assuming direct responsibility for the work of such
laboratories and consultants.
5.1.5.8
Design/Build Contractor shall review the
Construction Documents to ensure that they contain adequate provision for all
temporary facilities necessary for performance of the Work, and provisions for
all of the job site facilities necessary to manage, inspect, and supervise
construction of the Work.
5.1.5.9
Provide an
analysis of the types and quantities of labor required for the Project and
review the appropriate categories of labor required for critical phases or
Stages. Make recommendations that
minimize adverse effects of labor shortages.
5.1.5.10
Furniture, Fixtures and Equipment. Consult with and make recommendations to the
Owner on the acquisition schedule for fixtures,
furniture and equipment, and coordinate with the Owner as may be required to
meet the Schedule.
5.1.6
Obtaining Bids/Proposals for the Work
5.1.6.1
Design/Build Contractor shall publicly
advertise and solicit competitive lump sum bids/proposals from trade
contractors or subcontractors for the performance of all major elements of the
work other than the minor work that may be included in General Conditions. Criteria for determining the bid/proposal
that provides the best value to the Owner shall be established by the Project
Team and included in the request for bids/proposals. The Design/Build Contractor shall
notify the Owner in advance in writing of the date it will receive the
bids/proposals.
5.1.6.2
Schedule and conduct pre-bid conferences with
interested bidders/proposers, subcontractors, material suppliers, and equipment suppliers, and record minutes of
the conferences.
5.1.6.3
Design/Build Contractor and Owner shall review all trade
contractor or Subcontractor bids/proposals in a manner that does not
disclose the contents of any bid/proposal to persons outside of the Project
Team during the selection process. Based
on the selection criteria included in the request for proposals, Design/Build
Contractor shall recommend to the Owner the bid/proposal that provides the best
value for the Project. Upon Owner’s
concurrence in the recommendation, Design/Build Contractor may negotiate the
terms of the subcontract with the apparent best value bidder/proposer.
5.1.6.4
All subcontracts must be on a lump sum basis unless other payment terms
are approved in writing and in advance by the Associate Director for Project Management, Office of Facilities
Planning and Construction. Upon Owner’s concurrence in the final terms of the
subcontract, Design/Build Contractor shall enter into a written subcontract for
the subcontract work and provide a copy to the Owner. All bids/proposals
shall be publicly available after award of the subcontract or within seven (7)
days after the date of final selection, whichever is later.
5.1.6.5
If Design/Build Contractor reviews, evaluates, and
recommends to Owner a bid/proposal from a trade contractor or subcontractor,
but Owner requires another bid/proposal to be accepted, Owner shall compensate
Design/Build Contractor by a change in price, time, or Guaranteed Maximum Price
for any additional cost and risk that Design/Build Contractor incurs because of
Owner’s requirement that the other bid/proposal be accepted.
5.1.6.6
Design/Build may seek to self-perform portions of the Work
identified for self-performance in the bid/proposal
strategy. The Design/Build Contractor
must submit a bid/proposal for the self-performance work in the same manner as
all other trade contractors or Subcontractors.
The Owner will determine whether the Design/Build Contractor’s
bid/proposal provides the best value for Owner, which determination is
final. Design/Build Contractor
must perform approved self-performance work in accordance with the same terms
and conditions as its other Subcontractors.
For payment purposes, the Design/Build Contractor shall account for
self-performance work in the same manner as it does all other subcontract
costs.
5.1.6.7
Design/Build Contractor shall identify every Subcontractor it intends
to use on the Project, including Subcontractors
used for self-performed work, to the Owner in writing
at least ten (10) days before entering into any subcontract. Design/Build Contractor shall not use any
Subcontractor to which Owner has a reasonable
objection. Design/Build Contractor shall
not be required to subcontract with any Subcontractor to which it has
reasonable objection. Following Owner
acceptance of a Subcontractor, that Subcontractor shall not be changed without
Owner’s written consent, which shall not be unreasonably withheld.
5.1.6.8
If a selected trade contractor or subcontractor fails to
execute a subcontract after being selected in accordance with this section or
defaults in the performance of its work, the Design/Build Contractor may, in
consultation with the Owner and without further advertising, fulfill the
subcontract requirements itself or select a replacement trade contractor or
subcontractor to do so.
5.1.7.1
In accordance with Owner’s Uniform General and
Supplementary Conditions, Design/Build Contractor is responsible for
initiating, maintaining, and supervising all safety precautions and programs in
connection with the Work. The safety
program shall comply with all applicable requirements of the Occupational
Safety and Health Act of 1970 and all other applicable federal, state and local
laws and regulations and with the requirements of an Owner controlled insurance
program, if any.
5.1.7.2
Design/Build Contractor shall provide recommendations and
information to Owner and Project Architect regarding the assignment of
responsibilities for safety precautions and programs, temporary Project
facilities, and equipment, materials, and services for common use of the Subcontractors. Design/Build
Contractor shall verify that appropriate safety provisions are included in the
Construction Documents. The existence or
creation of any Owner controlled insurance program in connection with the Work
shall not lessen or reduce the Design/Build Contractor’s safety responsibilities.
5.2
DESIGN SERVICES
5.2.1
General Responsibilities
5.2.1.1
Design/Build Contractor shall designate in writing a representative who
is responsible for the day-to-day management of the Design Services. The designated representative shall be the
Owner’s primary contact during the design
phase of the Project and shall be available as required for the benefit of the
Project and the Owner. The designated
representative shall be authorized to act on behalf of and to bind the
Design/Build Contractor in all matters related to Design Services. The designated representative shall not be
changed without advance written approval from the Owner, which approval shall
not be unreasonably withheld.
5.2.1.2
Design/Build Contractor shall engage the services of a Project
Architect and other qualified professionals as required for performance of the
Design Services. Design/Build Contractor certifies that the Project Architect and all
other professional consultants have been or will be selected on the basis of competence and qualifications pursuant to Texas Education Code section
51.780(f)(1). Design/Build
Contractor shall not perform any architectural or engineering services directly
unless Design/Build Contractor is licensed in Texas to perform such
services. All drawings, specifications, change
orders and other design documents shall bear the seal of the licensed
professional who prepared them in accordance with the applicable laws and
regulations of the State of Texas.
5.2.1.3
Design/Build Contractor shall be
solely responsible for all obligations to the Project Architect and shall pay for the services
of the Project Architect and all other professional service providers out of
the fees for this Agreement. However, the Owner shall be identified as an
intended beneficiary in all such agreements and the Project Architect and all
other professional service providers shall acknowledge that they owe a duty of
professional care to the Owner for the Design Services provided for the
Project. Nothing in this Agreement shall
create any contractual obligation from the Owner to the Project Architect or
other design professionals not hired directly by the Owner.
5.2.1.4
The Design/Build Contractor shall be
responsible for managing the Design Services so as to insure that the Project,
as designed, can be constructed for an amount that is within Construction Cost
Limitation and will achieve the energy and operational savings required by the
Contract. The obligation to design the
Project so as to achieve the Program objectives of scope and cost shall
continue through completion and acceptance of Construction Documents. Any adjustment to the scope or quality
considered necessary to comply with the Construction Cost Limitation or the
Program during the design phase shall be mutually agreed upon and shall be
considered normal to that process.
5.2.1.5
The Design/Build Contractor shall submit the names of all proposed
consultants for Design Services, including the Project
Architect and any of its consultants, for approval by the Owner, which approval
shall not be unreasonably withheld. The
Design/Build Contractor shall provide the Owner with a copy of the fully
executed contract or agreement authorizing services by any such
consultant. All such contracts shall
provide that the consultants are bound to Design/Build Contractor in the same
manner and to the same extent as Design/Build Contractor is bound to
Owner.
5.2.1.6
The Design Services shall incorporate current technology as appropriate
to the stated mission of the institution and the programmed
functional activities that is compatible with any existing facility and
acceptable to the Owner.
5.2.1.7
All Design Services for the Project shall be provided in accordance
with the Owner’s Design Guidelines, Design Criteria
and the Campus Master Plan Guidelines, which are incorporated herein by reference,
and any other criteria applicable to the facility program and the needs of the
institution.
5.2.1.8
The Design/Build Contractor warrants to Owner the sufficiency and
completeness of all Design Services performed and that all drawings,
specifications, and other information furnished or provided by Design/Build
Contractor shall be free from material errors and omissions. Approval or acceptance of any Design Services
by Owner shall not in any way release Design/Build Contractor from any duty,
responsibility or liability for such services, it being understood that Owner
is at all times relying upon Design/Build Contractor’s skill and knowledge in
performing the Design Phase Services.
5.2.1.9
Owner shall have the right to reject any defective Design Services or
other defective Work on the Project of which Owner becomes aware and
Design/Build Contractor shall promptly correct any such defect at Design/Build Contractor’s expense. Should any portion of the Project Work be
damaged or defective due to an error or omission in the Design Services,
including errors or omissions in any plans, drawings, specifications, and other
construction document materials prepared or furnished by Design/Build
Contractor, Design/Build Contractor shall promptly correct any such damage or defect
at no additional cost to the Owner.
Should the Design/Build Contractor refuse or neglect to correct any such
damage or defect within a reasonable time after notice, Owner may cause the
damage or defect to be corrected and withhold payment or collect monetary
damages equal to the cost of replacing or repairing the defective Work.
5.2.1.10
Owner may elect, at its option, to stage or to
“fast-track” construction of the Project in different stages. Such stages may or
may not overlap. Design/Build Contractor
shall perform Design Services in staged packages as appropriate to each stage
of construction which may result in differing schedules and reviews for the
completion of each design stage and for each stage of planned
construction. The Owner may elect, at its
option, to establish a different Construction Cost Limitation for each such
stage.
5.2.1.11
At each stage of the Design Services, Design/Build Contractor
shall provide the following services as appropriate:
Architectural Services
Landscape Architectural Services
Civil Engineering Services
Structural Engineering Services
Mechanical Engineering Services
Electrical Engineering Services
Construction Cost Estimating
Scheduling Services
Storm Water Pollution Prevention Plan Design
Services
5.2.1.12
The Design/Build Contractor, as part of Basic Services, shall assist
with and attend with Owner representatives an open meeting to be held
pursuant to Texas Government Code Section 2166.403, to verify the
economic feasibility of incorporating alternative energy devices for space heating,
cooling, water heating, electrical loads, and interior lighting into the
building’s design and proposed energy system.
At a minimum, Design/Build Contractor shall provide an evaluation for
the potential of renewable energy applications pursuant to the legislative
requirements.
5.2.1.13
Design/Build Contractor shall comply
with the Energy Conservation Design Standard for New State buildings adopted by
the State Energy Conservation Office, 34 Texas Administrative Code, Part
1, Chapter 19, and provide a Statement of Compliance certifying that the
project design complies with the standards.
5.2.1.14
Design/Build Contractor shall employ a qualified Consultant (the “TPDES
Consultant”), experienced in the Texas
Pollutant Discharge Elimination System (TPDES) requirements and in the best
management practices used at construction sites to control erosion and
sediment, to prevent the discharge of pollutants and to prevent or mitigate the
impacts of storm water runoff on water quality (collectively “BMPs”), which
TPDES Consultant shall be approved in writing in advance by Owner, to provide
expertise with respect to Texas Commission on Environmental Quality regulations and BMPs through all phases of
the Project. The TPDES Consultant’s
services shall include, without limitation, (1) recommending structural and
non-structural BMPs to Project Architect or other subcontractors under this
Contract, (2) preparing of Storm Water Pollution Prevention Plans (SWPPPs) and,
as requested in writing by Owner, assisting in the updating of SWPPPs and all
other permit documentation required by the TCEQ for the Project, and (3) the
drafting of technical specifications governing the Design/Build Contractor’s
obligations under the applicable TPDES regulations and the TCEQ General Permit
for Storm Water Discharges From Construction Sites (“General Permit”) No. TXR
150000 and governing the Design/Build Contractor’s recommended courses of
action under BMPs. The TPDES Consultant shall insure that the storm water pollution prevention plan has been
prepared for the site in accordance with the General Permit and that such plan
complies with approved State and/or local sediment and erosion plans or permits
and/or storm water management plans or permits, including, without limitation,
any TPDES permit issued to The University of Texas component on which the site
is located. The TPDES Consultant,
through the Design/Build Contractor, shall determine whether General Permit
coverage is required, and, if so, shall advise Owner of Owner’s obligations
under the General Permit and shall advise Owner of the Design/Build
Contractor’s obligations under the General Permit. If there are multiple projects proposed to be
conducted concurrently in contiguous areas and general permit coverage is
required, the TPDES Consultant shall prepare one SWPPP for the entire area
encompassing all projects and shall amend such SWPPP at the request of Owner to
insure that the Design/Build Contractor of each project can comply with TPDES
requirements and BMPs. DESIGN/BUILD
CONTRACTOR SHALL INDEMNIFY AND HOLDS HARMLESS OWNER FROM ANY AND ALL LIABILITY,
LOSS, DAMAGE, COST, AND EXPENSE ARISING OUT OF A VIOLATION OF THE APPLICABLE
TCEQ TPDES REGULATIONS, BMPs, THIS PARAGRAPH OF THIS AGREEMENT, OR THE TERMS
AND CONDITIONS OF THE GENERAL PERMIT TO THE EXTENT ATTRIBUTABLE TO AN ACT OR
OMISSION OF DESIGN/BUILD CONTRACTOR, ARCHITECT OR ITS CONSULTANTS.
5.2.1.15
Design/Build Contractor shall not
proceed to any subsequent stage of Design Services until Owner has authorized
Design/Build Contractor to proceed in writing, except at the Design/Build
Contractor’s sole financial risk.
5.2.2
Pre-Design Stage
5.2.2.1
The Design/Build Contractor shall provide a preliminary evaluation of
the Owner’s Design Criteria and the Construction Cost Limitation, each in terms
of the other.
5.2.2.2
The Design/Build Contractor shall visit the site to become sufficiently
familiar with the existing facilities, systems and conditions to insure that
the Project as designed will functionally interface with the existing
conditions as required.
5.2.2.3
The Design/Build Contractor shall review laws applicable to the design
and construction of the Project and advise the Owner if any program requirement
may cause a violation of such laws.
5.2.2.4
Before proceeding to the Schematic Design Stage, the Design/Build
Contractor shall obtain Owner’s written approval of the Facility Program and
the preliminary construction cost estimate and written authorization to
proceed.
5.2.3
Schematic Design Stage
5.2.3.1
Based on the approved pre-design documents and any adjustments to the
Program or Construction Cost Limitation authorized by the Owner, the
Design/Build Contractor shall develop sufficient alternative approaches to
design and construction of the Project and review them with the Owner. The Design/Build Contractor shall prepare
Schematic Design documents and a preliminary construction cost estimate and
submit them to the Owner for approval.
The construction cost estimate shall affirm adherence to the
Construction Cost Limitation.
5.2.3.2
The Design/Build Contractor shall furnish and deliver to the Owner the
number of complete printed sets of Schematic Design documents as required.
5.2.3.3
Before proceeding to the Design Development Stage, the Design/Build
Contractor shall obtain Owner’s written authorization to proceed and the
Owner’s approval of the preliminary construction cost estimate.
5.2.4
Design Development Stage
5.2.4.1
Based on the approved Schematic Design documents and any adjustments to
the Program or Construction Cost Limitation authorized by the Owner, the
Design/Build Contractor shall prepare Design Development documents and a
detailed construction cost estimate and submit them to the Owner for
approval. The Design Development
Documents shall fix and describe the size and character of the entire Project,
including site work, architectural, structural, mechanical and electrical
systems, materials and such other elements as may be appropriate. The detailed construction cost estimate shall
confirm adherence to the Construction Cost Limitation
5.2.4.2
The Design/Build Contractor shall furnish and deliver to the Owner the
number of complete printed sets of Design Development documents as required.
5.2.4.3
The Design/Build Contractor shall prepare presentation materials as
described in Owner’s Design Guidelines at completion of Design Development and,
if requested, present them at a Board of Regents meeting.
5.2.4.4
Before proceeding into the Construction Document Stage, the
Design/Build Contractor shall obtain Owner’s written approval of the Design
Development documents and the mutually established Construction Cost
Limitation.
5.2.5
Construction Documents Stage
5.2.5.1
Based on the approved Design Development Documents and any further
adjustments to the Program, the Construction Cost Limitation or the Project
Construction Cost as authorized by the Owner, the Design/Build Contractor shall
prepare Construction Documents consisting of Drawings and Specifications and
submit them to the Owner for approval.
The Construction Documents shall set forth in detail the requirements
for construction of the Project. The
Construction Documents shall provide for the construction of the Project within
the approved Project Construction Cost.
5.2.5.2
The Construction Documents shall be consistent in all material respects
with Design/Build Contractor’s prior design proposals to Owner and with the
approved Guaranteed Maximum Price proposal.
5.2.5.3
The Design/Build Contractor shall advise the Owner regarding
construction phasing and scheduling, the construction contract time period, and
such other construction conditions considered appropriate for the Project.
5.2.5.4
The Design/Build Contractor shall assist and advise the Owner in
connection with the Owner’s responsibility and procedures for obtaining
approval of authorities having jurisdiction over the Project.
5.2.5.5
The Design/Build Contractor shall furnish and deliver to the Owner the
number of complete printed sets of Construction Documents as required.
5.2.5.6
Following Owner’s approval of the Construction Documents, Design/Build
Contractor shall deliver to the Owner Computer-aided Design and Drafting
(“CADD”) system copies of the Construction Documents in the format and media
specified by the Owner.
5.2.5.7
Following Owner’s approval of the Construction Documents, Design/Build
Contractor shall not be entitled to any adjustment in the approved Project
Construction Cost except for changes in Project scope or quality which
materially increase or decrease the cost to construct the Project that are
ordered by Owner in writing in accordance with the Uniform General and
Supplementary Conditions.
5.2.6
Review Drawings
5.2.6.1
The Design/Build Contractor, at its sole expense, shall provide Owner
with the required number of design document review sets at each required stage
of completion:
5.2.6.2
The Design/Build Contractor shall incorporate into the documents such
corrections and amendments as the Owner requests at each stage review, unless
the Design/Build Contractor objects to such changes in writing and Owner agrees
to the objections. Any additional cost
incurred due to Design/Build Contractor’s failure to incorporate Owner’s requested
corrections and amendments shall be borne by the Design/Build Contractor.
5.2.6.3
Design/Build Contractor shall identify to Owner in writing anything in
Design/Build Contractor’s drawings and specifications and any drawings, plans,
sketches, instructions, information, requirements, procedures, requests for
action, and other data supplied to Design/Build Contractor (by Owner or any
other party) that Design/Build Contractor regards as unsuitable, improper, or
inaccurate in connection with the purposes for which such documents or data are
furnished. Design/Build Contractor shall
be solely responsible for the use of such documents or data unless Design/Build
Contractor advises Owner in writing that in its opinion such documents or data
are unsuitable, improper, or inaccurate and Owner instruct the Design/Build
Contractor in writing to proceed in accordance with the documents or data as
originally given.
5.2.6.4
The Design/Build Contractor shall pay all costs for plans,
specifications and other design and construction documents used by the
Design/Build Contractor and its consultants and subcontractors, and all
documents produced for review by the Owner, except for changes generated solely
by Owner.
5.2.6.5
If any of the plans, specifications and other design and construction
documents or other work materials produced or used by Design/Build Contractor
pursuant to this Agreement are damaged or destroyed by fire or other casualty,
Design/Build Contractor shall prepare and provide Owner with new copies of any
such documents or materials, at no additional cost to Owner, unless
Design/Build Contractor or Owner has a complete and undamaged set thereof.
5.2.7
Additional Design Services
5.2.7.1
Additional Design Services shall be provided by
the Design/Build Contractor and paid for in accordance with this Agreement by the Owner if authorized in writing by the Owner. Prior to commencing any Additional Design
Service, Design/Build Contractor shall submit to the Owner an Additional
Services Proposal in a form acceptable to the Owner. The Additional Services Proposal shall
describe in detail the nature or scope
of the Additional Design Services, the basis upon which Design/Build Contractor
believes that such services are Additional Services, the maximum amount of fees
and reimbursable expenses for performance of the Additional Services, and a
proposed schedule for the performance of the Additional Services. Design/Build Contractor shall proceed with
the Additional Design Service only after written acceptance by Owner of the
Additional Services Proposal.
5.2.7.2
Upon acceptance by Owner, each Additional Services Proposal and the
services performed by Design/Build Contractor
pursuant to such Additional Services Proposal shall become part of this
Agreement and shall be subject to all the terms and conditions of this
Agreement, as fully and completely as though the same had been included in this
Agreement as a Basic Service at the original execution of this Agreement.
5.2.7.3
The following services, if requested by the Owner, are Additional Design
Services:
a.
Providing financial feasibility or other special studies other than as
they relate to energy conservation and guaranteed savings, and the cost of the
Project.
b.
Providing planning surveys,
site evaluations, environmental studies or comparative studies of prospective
sites.
c.
Providing services relative
to future facilities, systems and equipment which are not intended to be
constructed during the Construction Phase.
d.
Providing services to make
detailed investigation of existing conditions or facilities or to make measured
drawings thereof, other than to verify the accuracy of drawings or other
information furnished by the Owner.
e.
Providing coordination of Work performed by Owner’s separate Contractors
or by the Owner’s own forces.
f.
Providing services in connection with the Work of separate
consultants retained by the Owner.
g.
Providing services for planning tenant or rental spaces.
h.
Making revisions in Drawings, Specifications or
other documents when such revisions are inconsistent with written approvals or
instructions previously given by the Owner or due to Changes approved by the
Owner and not due to errors or omissions by the Project Architect.
i.
Making revisions in
Drawings, Specifications or other documents when such revisions are required by the enactment or revision of
codes, laws of regulations subsequent to the preparation of such documents.
j.
Making investigations, surveys, valuations,
inventories or detailed appraisals of existing facilities, except as necessary
and appropriate for the performance of the Design Phase Services required in
connection with construction performed by the Owner.
k.
Providing consultation concerning replacement of
any Work damaged by fire or other cause during
construction, and furnishing services
as may be required in connection with the replacement of such Work provided
that the damage was not caused wholly or in part by the Design/Build Contractor
or a Subcontractor.
l.
Providing services after final payment or
expiration of the Warranty, whichever is later, except as
otherwise required by the Contract.
m.
Preparing to serve or serving as an expert witness
at the request of the Owner in connection with any public hearing,
arbitration proceeding or legal proceeding.
n.
Providing any other services not otherwise customarily furnished in
accordance with generally accepted architectural or engineering practice.
o.
Providing “as-built” record drawings in CADD format.
p.
Providing a Hazardous Material Abatement
Consultant to provide hazardous material
abatement expertise (including, but
not limited to, asbestos and lead) through the Program, Schematic Design,
Design Development, Construction Document and Construction Service Phases of
the Project. The Hazardous Material
Abatement Consultant shall be selected on
the basis of competence and qualifications pursuant to Texas Education Code section 51.780(f)(1) from a list of approved consultants provided by
the Owner. Consultant shall review Owner
provided surveys, make recommendations regarding the need for additional
surveys, develop design and cost alternatives for hazardous material abatement,
prepare plans and specifications to include abatement in the general
construction scope of work, provide a licensed individual to monitor hazardous
material removal as required by State and EPA guidelines, and prepare a final
abatement report. Design/Build Contractor
shall provide the Owner with a written itemized cost proposal to provide
Hazardous Material Abatement Consulting services, including coordination of the
Design/Build Contractor. Hazardous
Materials Abatement insurance shall be provided by the Design/Build Contractor
and coverage for this service will not be included in any Owner provided
insurance program.
q.
Providing a Commissioning
Consultant to provide commissioning expertise through the Program, Schematic Design, Design
Development, Construction Document and Construction Services Phases of the
Project. The Commissioning Consultant
shall review input related Project objectives, methods and concepts of
commissioning.
ARTICLE 6 PRE-CONSTRUCTION
PHASE FEE
6.1
The Pre-Construction Phase Fee is the total compensation
payable to the Design/Build Contractor for the performance of Pre-Construction
Phase Services, except for Additional Pre-Construction Phase Services approved
in advance and in writing by the Owner.
The Pre-Construction Phase Fee shall be a lump sum amount based on the
CCL established in this Agreement.
6.2
Except as specifically allowed in paragraph 6.4, the
Design/Build Contractor shall not be entitled to any increase in the
Pre-Construction Phase Fee for any costs, expenses, liabilities or other
obligations arising from the performance of Pre-Construction Phase Services.
6.3
Costs associated with the following items are specifically,
but not exclusively, in the establishment of the Pre-Construction Phase
Fee: profit and profit sharing; general
overhead; salaries and labor; housing and relocation; fees and other payments
to the Project Architect, its consultants and other professional service
providers hired by the Design/Build Contractor to perform the Design Services;
estimating, scheduling and information management systems and software;
contract administration; office expenses; printing and copying; consulting
fees; legal or accounting fees; cost of money; taxes; insurance premiums and
deductibles; bond costs; purchase or rental of equipment; utilities; travel;
per diem; fines or penalties; and damage awards.
6.4
If the scope of the Pre-Construction
Phase Services is changed materially, the Pre-Construction Phase Fee shall be
equitably adjusted. If the CCL is changed materially before
acceptance of the GMP Proposal, the Pre-Construction Phase Fee shall be
adjusted in proportion to the change in the CCL. There shall be no adjustments in the
Pre-Construction Phase Fee following acceptance of the GMP Proposal.
6.5
For Additional Pre-Construction Phase Services that are approved in advance and
in writing by the Owner, Design/Build Contractor shall be entitled to
additional compensation computed as a:
6.5.1
A pre-established lump sum amount; or
6.5.2
The hourly cost of Design/Build
Contractor’s employee’s or consultants who actually perform the Additional
Services based on the employee’s Direct Salary Expense rate or prorated Monthly
Salary Rate plus the actual cost of allowable expenses incurred in the
performance of the Additional Services plus an overhead and profit markup of
ten percent (10%) of the total cost; or
6.5.3
As otherwise agreed to by the parties
in advance of performing the Additional Pre-Construction Phase Services.
ARTICLE 7 GUARANTEED
MAXIMUM PRICE PROPOSAL
7.1
When the Parties agree that the design of the Project is
sufficiently developed and documented to allow detailed pricing of its
construction, Design/Build Contractor shall prepare and submit a Guaranteed
Maximum Price (“GMP”) Proposal to Owner.
The GMP Proposal must be prepared in accordance with the guidelines and
delivered in the format specified by Owner in the attached exhibits. Owner, at its sole option and discretion, may
specify different requirements for the GMP Proposal. Design/Build Contractor shall not withdraw
its Guaranteed Maximum Price Proposal for ninety (90) days following submission
to the Owner.
7.2
The Design/Build Contractor shall review development of the
GMP Proposal with the Owner on an ongoing basis to address clarifications of
scope and pricing, distribution of contingencies, schedule, assumptions,
exclusions, and other matters relevant to the establishment of a GMP.
7.3
The GMP Proposal must include a written description of how
it was derived that specifically identifies the clarifications and assumptions
made by the Design/Build Contractor in the GMP and the monetary amounts
attributable to them. The GMP Proposal shall include, without
limitation, a breakdown of Design/Build Contractor’s estimated General
Conditions Costs and estimated Costs of the Work organized by trade;
contingency amounts; the Construction Phase Fee; and the proposed Contract
Time, including dates for Notice to Proceed, Substantial Completion and Final
Completion.
7.4
The Guaranteed Maximum Price Proposal shall allow for all
changes and refinements in the Drawings and Specifications through completion
of the Construction Documents, except for material changes in scope.
7.5
The GMP Proposal may include a Design/Build Contractor’s
Contingency amount as allowed under Direct Construction Cost.
7.6
Included with its GMP Proposal, Design/Build Contractor shall
provide two complete, bound sets of the drawings, specifications, plans,
sketches, instructions, requirements, materials, equipment specifications and
other information or documents that fully describe the Project as developed at
the time of the GMP Proposal and that are relevant to the establishment of the
GMP. The bound supporting documents
shall be referenced in and incorporated into the GMP Proposal.
7.7
The GMP Proposal and all supporting
documents shall identify and describe all items, assumptions, costs,
contingencies, schedules and other matters necessary and relevant for proper
execution and completion of the Work and for establishment of the Guaranteed
Maximum Price. The GMP Proposal and the
supporting documents are complementary and, in the event of an irreconcilable
conflict between or among them, the interpretation that provides for the higher
quality of material and/or workmanship shall prevail over all other
interpretations.
7.8
In submitting the GMP Proposal, the Design/Build Contractor
represents that it will provide every item, system or element of Work that is
identified, shown or specified in the GMP Proposal or the supporting documents,
along with all necessary or ancillary materials and equipment for their
complete operating installation, unless specifically excepted by the
Owner. Upon Owner’s acceptance of the GMP Proposal, the Design/Build
Contractor shall not be entitled to any increase in the Guaranteed Maximum
Price due to the continued refinement of the Construction Documents or the
absence or addition of any detail or specification that may be required in
order to complete the construction of the Project as described in and
reasonably inferable from the GMP Proposal or the supporting documents used to
establish the GMP. Any costs that exceed
the GMP shall be borne solely by the Design/Build Contractor without
reimbursement by the Owner. Design/Build
Contractor is responsible for all design, including incidental
designing/detailing as required by the Specifications for shop drawing
purposes, except for design provided by Owner’s independent Design Consultants,
if any.
7.9
Prior to commencement of the Construction Phase Services and
concurrently with submission of the Guaranteed Maximum Sum Proposal, the
Design/Build Contractor shall submit for the Owner’s acceptance a schedule for
the performance of Construction Phase Services as specified. The Construction Phase Schedule shall include
reasonable periods of time for the Owner’s review and acceptance of design
drawings and submissions and for approval of authorities having jurisdiction
over the Project. Upon acceptance of a
Guaranteed Maximum Sum Proposal by the Owner, the Construction Phase Schedule shall
not be modified except for good cause as approved by the Owner at the Owner’s
sole option and discretion.
7.10
The GMP Proposal shall adopt and incorporate all of the terms and conditions of this
Agreement and all attachments to this Agreement. Any proposed deviation from the terms and
conditions of this Agreement must be clearly and conspicuously identified to
the Owner in writing and specifically accepted by the Owner. In the event of a conflict between any term
of the GMP Proposal that was not clearly and conspicuously identified and approved
by the Owner and the terms of this Agreement and its attachments, the terms of
the Agreement and its attachments shall control.
7.11
Owner may accept or reject the Guaranteed Maximum Price
Proposal or attempt to negotiate its terms with Design/Build Contractor. Upon acceptance by the Owner of the GMP
Proposal in writing, both parties shall execute the GMP Proposal and the terms
of the GMP Proposal, including the Guaranteed Maximum Price and the supporting
documents, shall become part of the Contract between the Owner and the
Design/Build Contractor. If the Owner
rejects the GMP Proposal or the parties are unable or unwilling to agree on a
GMP, the Owner may terminate this Agreement.
7.12
Following Owner acceptance
of the GMP Proposal, Design/Build Contractor shall continue to monitor the
development of the Construction Documents so that, when complete, the
Construction Documents adequately incorporate and resolve all qualifications,
assumptions, clarifications, exclusions and value engineering issues identified
in the GMP Proposal. During the
Construction Documents stage, the Design/Build Contractor and the Project
Architect shall jointly deliver a monthly status report to the Owner describing
the progress on the incorporation of all qualifications, assumptions,
clarifications, exclusions, value engineering issues and all other matters
relevant to the establishment of the GMP into the Construction Documents.
7.13
The Design/Build Contractor shall be entitled to an
equitable adjustment of the GMP if it is required to pay or bear the burden of
any new federal, state, or local tax, or any rate increase of an existing tax,
except taxes on income, adopted through statute, court decision, written
ruling, or regulation taking effect after acceptance of the GMP Proposal. This equitable adjustment does not apply to
tax increases borne solely by Subcontractors.
7.14
The Parties may agree to convert the GMP to a lump sum
contract amount at any time after the Design/Build Contractor has received bids
or proposals from trade contractors or Subcontractors for the performance of
all major elements of the Work. In
proposing a lump sum amount, the Design/Build Contractor shall consider the
buyout savings, any unused contingency amounts and the trade package contracts
that have not been finalized. In
preparing a lump sum conversion proposal, the General Contractor must provide
the following information:
The stage of completion of the
Project;
The trade packages that have been
completely bought out;
The trade packages remaining that
have not been bought out;
A complete line item breakdown of the calculations used to
establish a lump sum amount based on the GMP Schedule of Values;
An accounting of all savings amounts that are to be returned to
the Owner as part of the lump sum calculation; and
Any other Project information
requested by the Owner.
7.15
The Design/Build Contractor shall document the actual Cost of the Work
at buyout as compared to the Guaranteed Maximum
Price proposal and shall report this information to the Owner monthly with
Design/Build Contractor’s recommendation for selection of a bid/proposal for
each subcontracting package.
ARTICLE 8 CONSTRUCTION
PHASE SERVICES
The Construction Phase shall be
deemed to commence upon the date specified in a Notice to Proceed issued by
Owner after approval of the Guaranteed Maximum Price Proposal and shall
continue until Final Completion of all Work.
Pre-Construction Phase Services may overlap Construction Phase Services. Design/Build Contractor shall not
incur any subcontractor costs for construction of the Work prior to issuance by
Owner of written authorization to commence such Work. The Design/Build
Contractor shall perform the following Construction
Phase Services.
8.1
General Responsibilities
8.1.1
Construct the Work in strict accordance
with the Construction Documents and as required by the Uniform General and
Supplementary General Conditions and Owner’s Specifications within the time
required by the Project Schedule approved by Owner.
8.1.2
Organize and maintain a competent, full-time staff at the Project site
with clearly defined lines of authority and communication as necessary to
coordinate construction activities, monitor and direct progress of the Work,
and further the goals of the Project Team.
8.1.3
Designate in writing a representative who is responsible for the
day-to-day management of the Construction Phase Services. The designated representative shall be the
Owner’s primary contact during the Construction Phase and shall be available as
required for the benefit of the Project and the Owner. The designated representative shall be
authorized to act on behalf of and bind the Design/Build Contractor in all
matters related to Construction Phase Services including, but not limited to,
execution of Change Orders and Applications for Payment.
8.1.4
Attend Owner’s regularly scheduled Project progress
meetings and fully advise the Project Team of the Project status including
schedule, costs, quality and changes.
8.1.5
In addition to attending Owner’s regularly scheduled
Project progress meetings, Design/Build Contractor shall schedule, direct and
attend interim progress meetings with other members of the Project Team as
required to maintain Project progress.
Design/Build Contractor shall record and distribute the minutes of each
meeting to each Project Team member. The
minutes shall identify critical activities that require action and the dates by
which each activity must be completed.
8.1.6
Coordinate delivery and installation of Owner-procured
material and equipment.
8.1.7
In accordance with Owner’s Standard
Uniform General and Supplementary Conditions, provide and pay for all labor,
materials, equipment, tools, construction equipment and machinery, transportation, and all other facilities and services necessary for the
proper execution and completion of the Work in strict accordance with the
requirements of the Construction Documents.
8.1.8
Obtain building permits and special permits for permanent improvements as required
by law or the Construction Documents.
Assist Owner or Project Architect in obtaining all approvals required
from authorities having jurisdiction over the Project.
8.1.9
Coordinate, monitor and inspect the work of
Subcontractors to ensure conformance with the Construction Documents.
8.1.10
Be responsible for all construction means,
methods, techniques, sequences and procedures, and for coordinating all portions of the Work.
The Design/Build Contractor shall keep the Owner informed of the
progress and quality of the Work.
8.1.11
Design/Build Contractor shall promptly correct any defective Work at Design/Build
Contractor’s sole expense, unless the Owner specifically agrees to accept the
Work.
8.1.12
Warrant that the materials and equipment provided for
the Project will be of good quality and new unless otherwise required or
permitted by the Construction Documents; that the construction will be free
from faults and defects; and that the construction will conform with the
requirements of the Construction Documents.
The Design/Build Contractor shall be responsible for correcting Work
that does not comply with the Construction Documents at its sole expense
without cost to the Owner.
8.1.13
In accordance with the Uniform General and
Supplemental Conditions regarding Record Documents and the Owner’s Project
Closeout Specification, the Design/Build Contractor shall maintain and deliver the required documents that describe changes or deviations
from the Construction Documents that occurred during construction and that
reflect the actual “As Built” conditions of the completed Work.
8.2
Construction Contract Administration
8.2.1
The Design/Build Contractor, through the Project Architect, shall
furnish the following Contract Administration Services during the Construction
Phase. Fees for these services are
included in the Design/Build Contractor’s Construction Phase Fee.
8.2.2
The Project Architect shall assist in the administration of the
Contract for Construction as set forth below and in the project manual and the
current edition of the Owner’s A/E Design Guidelines and Owner’s Design
Criteria.
8.2.3
The Project Architect, and his related consultants, shall inspect the
Project site at intervals appropriate to the type and stage of construction
progress and as otherwise required by this Agreement to observe the progress
and quality of the Work and to determine in general if the Work is proceeding in
accordance with the Contract Documents.
On the basis of such onsite observations, the Project Architect shall
observe the progress and quality of the Work, and shall endeavor to guard the
Owner against defects and deficiencies in the Work.
8.2.4
In addition to site visits for general inspection and observation, the
Project Architect shall visit the site for specific purposes related to
certification of progress payments, start-up or mock-up reviews for significant
work activities and for formal inspections of the Work. The Project Architect shall provide written
reports of all site visits to the Owner and the Design-Build Contractor within
three business days.
8.2.5
The Design/Build Contractor shall establish and maintain a numbering
and tracking system for all project records, including changes, requests for
information, submittals, and supplementary instructions shall provide updated
records at each Owner’s meeting and when requested.
8.2.6
The Design/Build Contractor shall administer all regular progress and
special meetings scheduled by the Owner and shall promptly provide meeting
minutes to all parties within seven days.
The Project Architect shall attend the Design/Build Contractor’s
regularly scheduled planning meetings.
8.2.7
The Design/Build Contractor shall prepare an agenda for and conduct job
conferences for attendance by representatives of the Design-Build Contractor,
major Trade Contractors and Subcontractors, the Project Architects and OFPC,
and prepare and distribute minutes of the meetings and a construction status
report.
8.2.8
The Project Architect’s certification of Design/Build Contractor’s
Estimate for Partial Payment for Construction Phase Services shall constitute a
representation by the Project Architect to the Owner, based on the Project
Architect’s observations at the site as provided in this Agreement and on the
data comprising the Design/Build Contractor’s Estimate for Partial Payment that
the Work has progressed to the point indicated; that, to the best of the
Project Architect’s knowledge, information and belief, the quality of the work
is in accordance with the Contract Documents.
However, the certification of a Design/Build Contractor’s Estimate for
Partial Payment shall not be a representation that the Project Architect has
made any examination to ascertain how and for what purpose the Design/Build
Contractor has used the moneys paid on account of the Contract Sum.
8.2.9
The Project Architect, with the approval of the Owner, shall interpret
the technical requirements of the Contract Documents. The Project Architect shall render
interpretations necessary for the proper execution or progress of the Work with
reasonable promptness on written request of either the Owner or the
Design-Build Contractor, and shall render written recommendations to the Owner
within a reasonable time on matters relating to the execution or progress of
the Work or the interpretation of the Contract Documents.
8.2.10
The Project Architect shall provide consultation for the purpose of
clarification and interpretation of the intent and scope of the Construction
Documents. Project Architect’s
interpretations and recommendations shall be consistent with the intent of and
reasonably inferable from the Contract Documents. Project Architect’s interpretations shall be
made in written and/or graphic form including, if necessary or appropriate,
supplemental documents to amplify or clarify portions of the Construction
Documents.
8.2.11
The Project Architect shall review and approve or take other
appropriate action upon the Design/Build Contractor’s submittals such as Shop
Drawings, Product Data and Samples, but only for conformance with the design
concept of the Work set forth in the Contract Documents, and shall respond to
Design-Build Contractor’s inquiries and questions and provide such supplemental
information as appropriate. One copy of
each submittal, shop drawing, product data, etc., shall be provided to the
Owner.
8.2.12
The Project Architect shall provide assistance to the Owner in the
review of the Design/Build Contractor’s requests for change orders and pricing
thereof.
8.2.13
The Project Architect shall prepare Change Orders for the Owner’s
approval and execution in accordance with the Contract Documents, and shall,
with Owner’s approval, have authority to order minor changes in the Work not
involving an adjustment in the Contract Sum or an extension of the Contract
Time, which are not inconsistent with the intent of the Contract
Documents. In conjunction with each
Change, the Project Architect shall review the cost and time estimate and
recommend to the Owner whether the proposal is appropriate. The Project Architect shall prepare revised
Contract Drawings, where appropriate, to illustrate and document the work
required by the Change.
8.2.14
All proposed changes to drawings, plans and specifications, regardless
of how initiated, shall be fully described in the document depicting them as to
scope of work added, removed, or changed.
The original copies of the Construction Documents may be revised to show
such changes, provided that all such revisions shall be separately recorded on
media acceptable to Owner, including, without limitation, CADD. Such revisions shall be clearly indicated and
a current revision date shall be included on the reproducible copy. Changes to the specifications shall be made
by consecutively numbered and dated revision addenda. All changes to design documents or
specifications will be identified by date of change, revision number and other
customary identification references.
Areas changed on drawings will be “clouded” to show each change. Clouds designating previous changes will be
removed so that only the most recent changes will be clouded.
8.2.15
The Project Architect shall participate in concealed space inspections,
systems start-up inspections, Substantial Completion and Pre-Final Inspections
to determine the Dates of Substantial Completion, and Final Acceptance. The Project Architect shall also participate
in the Owner’s final walk thru inspection one year after Final Completion.
8.2.16
The Project Architect shall review, for conformance with the Contract
Documents, Design/Build Contractor’s submission of guarantees and warranties.
8.2.17
The Project Architect shall assist the Owner in checking as-built
drawings during the course of the Work in association with certifying progress
payments and shall review final as-built documents for completeness and
compliance with Contract requirements.
8.2.18
The Design /Build Contractor shall provide “as-built” record drawings
(1 set mylar and 2 sets bluelines) as described in the Owner’s Project Closeout
of the specifications.
8.2.19
The Project Architect shall prepare and administer the construction
punch list until all punch list items have been resolved to the Owner’s
satisfaction.
8.2.20
The Project Architect shall review Design/Build Contractor’s submission
of operating and maintenance instructions, and all manuals, brochures,
drawings, and other close-out documentation furnished by the Design/Build
Contractor for conformance with the requirements of the construction documents.
ARTICLE 9 OWNER’S
RESPONSIBILITIES
9.1
The Owner will provide the Design Criteria Package for
the Project pursuant to Texas Education
Code section 51.780(a)(3).
9.2
The Owner will provide a preliminary project
budget and schedule for the Project. The
budget will include the Construction Cost Limitation, contingencies for changes
in the Work during construction, and other costs which are the responsibility
of the Owner. The schedule will set
forth the Owner’s plan for milestone dates and completion of the Project.
9.3
The Owner will designate a representative
authorized to act in the Owner’s behalf with respect to the Project. The Owner’s Designated Representative shall
examine the documents submitted by the Design/Build Contractor and shall render
decisions pertaining thereto.
9.4
The Owner, at Owner’s cost, will secure the
services of surveyors, soils engineers, existing facility surveys, testing and
balancing, hazardous materials surveys, laboratory testing, environmental or
other special consultants to develop such additional information as may be necessary
for the design of the project. The
Design/Build Contractor shall provide the Owner with parameters for inclusion
in the Owner’s instructions to such providers.
9.5
The Owner shall arrange and pay for materials,
structural, mechanical, chemical and other laboratory tests as required by the
Construction Documents.
9.6
The Owner shall furnish all legal, accounting,
auditing and insurance counseling services for itself as may be necessary for
the Project.
9.7
The Owner shall examine the design documents
submitted by the Design/Build Contractor and provide comments concerning
corrections or amendments to such documents in writing to the Design/Build
Contractor. The Owner may obtain
independent review of the design documents by its own Design Consultant. The Owner may require the Design/Build
Contractor to halt production during design review.
9.8
The Owner shall furnish required information and
services and shall render approvals and decisions as expeditiously as is
consistent with reasonable skill and care and the orderly progress of the
Design/Build Contractor’s services and of the Work.
9.9
The Owner may designate one or more Construction
Inspectors of its own who shall be given access to the Work as requested or
needed. The provision of such Inspectors
by Owner shall not reduce or lessen in any respect Design/Build Contractor’s
responsibilities for the Work.
Design/Build Contractor shall remain fully and solely responsible for
the drawings, specifications, and other contract documents furnished or
provided by Design/Build Contractor, and for constructing the Project in strict
accordance with the Contract Documents.
9.10
Owner shall have the right to reject any defective Work on
the Project. Should Design/Build
Contractor refuse or neglect to correct any such Work within a reasonable time
after notice, Owner may have the Work corrected and recover all expenses
incurred from Design/Build Contractor on demand.
ARTICLE 10 OWNERSHIP
AND USE OF DOCUMENTS
10.1
Drawings, specifications and other documents
furnished by the Design/Build Contractor or Project Architect are instruments
of service and shall remain their property whether the Project for which they
are made is executed or not. The Owner
shall be permitted to retain copies, including reproducible copies and CADD
copies, of the drawings, specifications and other documents for information and
reference in connection with the Owner’s use and occupancy of the Project. Design/Build Contractor and Project Architect
hereby grant Owner an irrevocable, fully paid-up, perpetual license and right
to use the drawings, specifications and other documents furnished, including
the originals thereof, and the ideas and designs contained therein, for any
purpose regardless of whether their services for the Project are completed,
modified or terminated. This license
shall survive the termination of this Agreement. If this Agreement is terminated, Design/Build
Contractor and Project Architect hereby expressly consent to the employment by
Owner of a substitute architect to complete the Design Services under this
Agreement, with the substitute architect having all of the rights and
privileges of the original Project Architect.
10.2
Submission or distribution to meet official
regulatory requirements or for other purposes in connection with the Project is
not to be construed as publication in derogation of the Design/Build
Contractor’s or Project Architect’s rights.
ARTICLE 11 TIME
11.1
Unless otherwise approved, the Owner and the
Design/Build Contractor shall perform their respective obligations under the
Contract as expeditiously as is consistent with reasonable skill and care and
the orderly progress of the Work.
11.2
Time limits stated in the Contract Documents are
of the essence of this Agreement. The
Design/Build Contractor shall be responsible for schedule development, updating
and reporting throughout the entire Project, including Pre-Construction Phase
Services and Construction Phase Services.
The Design/Build Contractor shall comply in all regards with requirements
set forth in the Owner’s Project Planning and Scheduling Specifications.
ARTICLE 12 PAYMENTS
12.1
General Requirements
12.1.1
Each schedule of values submitted with an Application for
Payment shall include the originally established value for each work
classification line item or subcontract and shall identify, by the addition of
new data rows immediately below the previously accepted data rows, any
revisions to the costs or cost estimates for each work classification or
subcontract. The format and tracking
method of the original schedule of values and of all updates shall be subject
to approval by the Owner. At all times,
the estimated cost of performing the uncompleted and unpaid portion of the
Work, including Design/Build Contractor’s overhead and profit, shall not exceed
the unpaid balance of the Guaranteed Maximum Price, less retainage on Work
previously completed.
12.1.2
Pre-Construction Phase expenses of transportation and
overnight living expenses in connection with Owner approved out-of-state travel
shall be identified separately in each Application for Payment. All travel must be approved in writing and in
advance by Owner to be eligible for payment.
Allowable expenses are limited to the reimbursable amounts described
Article 24, Compensation.
12.1.3
Retainage as specified in the Uniform General and
Supplementary Conditions will be withheld from the entire amount approved in an
Application for Payment including the Cost of the Work, General Conditions, and
the Design/Build Contractor’s Construction Phase Fee. Retainage will not be withheld from payments
for Pre-Construction Phase Services.
12.1.4
Owner is an agency of the State of Texas and materials and
services utilized in the construction of the Project may be exempted from state
and local taxes. Design/Build Contractor
is responsible for taking full advantage of all tax exemptions applicable to
the Project. Owner will deduct from the
Applications for Payment and from the Request for Final Payment any taxes paid
for materials or services that were entitled to tax exemption.
12.1.5
This Agreement is subject to the assessment of liquidated damages against Design/Build
Contractor. Amounts assessed as liquidated damages, and other amounts to which
Owner is entitled by way of setoff or recovery, may be deducted from any moneys
due Design/Build Contractor.
12.1.6
Owner shall have the right to withhold from payments due
Design/Build Contractor such sums as are necessary to protect Owner against any
loss or damage which may result from negligence by Design/Build Contractor or
any Subcontractor or failure of Design/Build Contractor or any Subcontractor to
perform their obligations under this Agreement.
12.1.7
Notwithstanding any other contractual provision to the
contrary, Owner shall not be obligated to make any payment, to Design/Build
Contractor under any of the following circumstances:
12.1.7.1
Design/Build Contractor persistently
fails to perform the Work in accordance with the Contract Documents or is
otherwise in material breach or default under this Agreement;
12.1.7.2
The payment request includes services
that are not performed in accordance with the Construction Documents; provided,
however, Owner shall pay for those services performed in accordance with the
Construction Documents;
12.1.7.3
The payment request has insufficient documentation to support the
amount of payment requested for Project costs; provided, however, Owner shall
pay for allowable Project costs for which there is sufficient documentation;
12.1.7.4
Design/Build Contractor is in
violation of the Prevailing Wage requirements or has failed to make payments
promptly to Subcontractors or other third parties used in connection with any
services or materials for which Owner has made payment to Design/Build
Contractor;
12.1.7.5
If Owner, in its good faith judgment, determines that the unpaid
balance of the GMP is not sufficient to
complete the Work in accordance with the Construction Documents;
12.1.7.6
Design/Build Contractor has persistently failed to complete the Work in
accordance with the CPM Schedule requirements or if Owner, in its good faith
judgment, determines that the remaining Work will not be completed within the
contract time;
12.1.7.7
Design/Build Contractor is insolvent,
makes a general assignment for the benefit of its creditors or otherwise seeks
protection under the laws and regulations of the bankruptcy courts; or
12.1.7.8
Design/Build Contractor fails to
obtain, maintain or renew insurance coverage as required by the Agreement.
12.1.8
No partial payment made by the Owner shall constitute, or
be construed to constitute, final acceptance or approval of the work to which
the partial payment relates or of the documentation provided in support of the
partial payment. No partial payment made
by the Owner shall constitute, or be construed to constitute, a release of
Design/Build Contractor from any of its obligations or liabilities with respect
to the Work.
12.1.9
Owner shall have the right to verify and audit the details
of Design/Build Contractor's billings, certificates, accountings, cost data,
and statements, either before or after payment, by (1) inspecting the books and
records of Design/Build Contractor during normal business hours; (2) examining
any reports with respect to this Project; (3) interviewing Design/Build
Contractor’s employees; (4) visiting the Project site; and (5) any other
reasonable action. Design/Build Contractor's
records shall be kept on the basis of
generally accepted accounting principles in accordance with cost accounting
standards issued by the Federal Office of Management and Budget Cost Accounting
Standards Board and organized by each Application for Payment period.
12.2
Pre-Construction Phase Payments
12.2.1
Payments for Pre-Construction Phase
Services shall be made monthly based on the percentage completion of the
Design/Build Contractor’s required services for each stage of development of
the Construction Documents and the procurement of Subcontractor bids/proposals
in accordance with the schedule in Article 24, Compensation.
12.2.2
All payment requests for
Pre-Construction Phase Services shall be submitted on an Application for
Payment and Schedule of Values approved by the Owner and includes all required
attachments identifying payments to Project Architect, Historically
Underutilized Businesses and to all Subcontractors.
12.3
Construction Phase Payments
12.3.1
Payments for Construction Phase Services shall be made as
provided for in the Uniform General and Supplementary Conditions and the
Owner’s Specifications. All payment requests shall be submitted on an
Application for Payment with a schedule of values approved by the Owner and
include all required attachments identifying payments to Historically Underutilized
Businesses and to all Subcontractors.
Payment for approved Change Orders shall be made as part of the
Design/Build Contractor's Application for Payment. Failure to submit “HUB Progress Assessment
Report Documentations of Subcontracted Work” form with each Application for
Payment Application will cause rejection of the application by the Owner and
its return to the Design/Build Contractor.
12.3.2
The Design/Build Contractor’s Construction Phase Fee and
Construction Contract Administration Fee shall each be shown as separate line
items on the Schedule of Values. Payment
of the Design/Build Contractor’s Construction Phase Fee shall be made with each
Application for Payment in the same proportion as the percentage completion of
the Cost of the Work of the Project.
12.3.3
For General Conditions Costs, Design/Build Contractor’s
Application for Payment shall include complete copies of all receipts, invoices
with check vouchers or other evidence of payment, payrolls, and any and all
other evidence which Owner or its designated representatives shall deem
necessary to support the amount requested.
This information is subject to audit and payment for these costs is
dependant on Owner’s receipt of accurate and complete records of all
transactions. Owner may reduce the amount
requested for General Conditions Costs in any Application for Payment if the
Owner, in its good faith judgment, determines that the unpaid balance of the
General Conditions line item in the schedule of values is not sufficient to
fund necessary General Conditions Costs for the remainder of the Project.
12.3.4
Pay requests for Subcontractor work included in an
Application for Payment shall not exceed the percentage of Work allocated to
that Subcontractor for each respective schedule of values work classification
which has been actually completed and shall not exceed the total value of the
subcontract amount.
12.3.5
Design/Build Contractor’s Request for Final Payment shall
not be made until all Work is completed and all requirements of the Contract
Documents have been satisfied
including, without limitation: delivery
to Owner of a complete release of all liens and claims arising out of the Work;
written consent of surety to release of final payment; and an affidavit that,
to the best of Design/Build Contractor information, knowledge and belief, the
release includes and covers all materials and services over which Design/Build
Contractor has control and for which a lien could be filed and that all known
debts and claims arising from the Project have been satisfied. Alternatively, Design/Build Contractor may,
at its sole expense, furnish a bond satisfactory to Owner to indemnify Owner
against any lien arising out of the Work.
If any lien is asserted against Owner after all payments are made,
Design/Build Contractor shall reimburse Owner for all damages and costs Owner
may incur in discharging such lien, including all costs or court and reasonable
attorneys’ fees, and Owner shall retain all other remedies available to it at
law and in equity.
12.3.6
Owner shall have no obligation to make Final Payment until
a complete and final accounting of the Direct Construction Cost has been
submitted by Design/Build Contractor and has been audited and verified by Owner
or Owner’s representatives.
12.3.7
Nothing contained herein shall require the Owner to pay the
Design/Build Contractor an aggregate amount for Construction Phase Services
that exceeds the Guaranteed Maximum
Price or to make any payment if, in the Owner’s belief, the cost to complete
the Work would exceed the Guaranteed Maximum Price less previous payments to
Design/Build Contractor. The total
amount of all Construction Phase payments to the Design/Build Contractor shall
not exceed the actual verified Direct Construction Cost for the Project plus
the Design/Build Contractor’s Construction Phase Fee.
12.3.8
The acceptance by Design/Build Contractor
or Design/Build Contractor's successors of Final Payment under this Agreement,
shall constitute a full and complete release of Owner from any and all claims,
demands, and causes of action whatsoever that Design/Build Contractor, its
Subcontractors, suppliers and consultants or any of their successors or assigns
have or may have against Owner arising from the Project or any provision(s) of
this Agreement except for those previously made in writing and identified by
Design/Build Contractor as unsettled at the time of the Request for Final
Payment.
ARTICLE 13 DIRECT
CONSTRUCTION COST
Direct
Construction Cost means the sum of the amounts that the Design/Build Contractor
actually and necessarily incurs constructing the Work in strict compliance with
the Construction Documents. Direct
Construction Cost includes only the cost categories set forth in this Article
and does not include the Pre-Construction Phase Fees or the Construction Phase
Fees unless specifically noted.
References in the Uniform General and Supplementary Conditions to
adjustments in “cost” or “costs” mean the Direct Construction Cost.
13.1
General Conditions
Costs
13.1.1
Design/Build Contractor is entitled to receive payment for
the actual cost of the allowable General Conditions items incurred after
receipt of a Notice to Proceed with Construction from the Owner through
Substantial Completion of the Project.
Design/Build Contractor is not entitled to reimbursement for General
Conditions Costs incurred before receipt of the Notice to Proceed. General Conditions Costs incurred after
Substantial Completion must be approved in advance by the Owner.
13.1.2
Allowable General Conditions items are identified below and
further detailed in the attached Exhibit.
These items shall be included in the General Conditions cost amount
shown as a line item in the Guaranteed Maximum Price Proposal and as detailed
on the schedule of values. Items not
specifically included below or in the exhibit will not be allowed as a General
Condition costs.
13.1.3
Personnel Costs. The
actual Worker Wage Rate for Design/Build Contractor’s hourly employees and the
Monthly Salary Rate of Design/Build Contractor’s salaried personnel who are
identified to the Owner in advance and in writing but only for the time
actually stationed at the Project site with the Owner’s prior consent. The Project Manager’s Monthly Salary Rate may
be included in the General Conditions Costs only when the Project Manager is
directly managing the Project. All
personnel costs are subject to audit to determine the actual cost of the wages,
salaries and allowable employer contributions incurred by the Design/Build
Contractor for services performed for the Project.
13.1.4
Costs of long-distance telephone calls, telegrams, postage,
package delivery and courier service, hardwired telephone service, and
reasonable expenses of Design/Build Contractor’s jobsite office if incurred at
the Project site and directly and solely in support of the Work.
13.1.5
Costs of materials, supplies, temporary facilities,
equipment, and hand tools (except those customarily owned by construction
workers), supplied to the Project site by Design/Build Contractor, if such
items are fully consumed in the construction of the Work and are included in the
list of allowable General Condition Line Items.
Cost for used items shall be based on fair market value and may include
transportation, installation, and minor maintenance costs, and removal costs. If an item is not fully consumed in the
construction of the Work, its cost shall be based on actual cost of the item
less its fair market salvage value.
13.1.6
Rental charges for temporary facilities, equipment, and
hand tools (except those customarily owned by construction workers), supplied
to the Project site by Design/Build Contractor, provided they are included in
the list of allowable General Condition Line Items and Owner has approved the
rentals and the rental rates in advance and in writing. Rental rates may include transportation,
installation, and minor maintenance costs, and removal costs. For tools, machinery or construction
equipment rented directly from the Design/Build Contractor, the rental rate,
including freight and delivery costs and all operating expenses except labor,
shall be approved in advance by the Owner and shall be in accordance with the
“Rental Rate Blue Book for Construction Mobilization Costs” published by
Primedia, latest edition, but no higher than the prevailing competitive rates
for rental of similar equipment in the Project vicinity.
13.1.7
The aggregate rental cost of any item charged to Owner
shall not exceed ninety percent (90%) of the purchase price and maintenance
cost of the item. If the anticipated
aggregate rental cost for an item of equipment exceeds ninety percent (90%) of
the purchase and maintenance price, Design/Build Contractor shall purchase the
equipment and turn it over to Owner upon final completion of the Work or, at
Owner’s option, credit the Owner with the fair market resale value of the item.
13.1.8
Permit and inspection fees that are not subject to
exemption.
13.1.9
Premiums for insurance and bonds to the extent directly
attributable to this Project.
13.1.10
Governmental sales and use taxes directly attributable to
the General Conditions Items that are not subject to exemption. Taxes paid on materials or services that were
entitled to tax exemption will not be reimbursed by Owner as Direct
Construction Costs.
13.2
Cost of the Work
13.2.1
Design/Build Contractor is entitled to
receive payment for the actual cost of the allowable Cost of the Work items
incurred after receipt of Owner’s written authorization to commence the
Construction Phase Work through Final Completion of the Project. Design/Build Contractor is not entitled to
reimbursement for Cost of the Work costs incurred before receipt of Owner’s
written authorization.
13.2.2
Cost of the Work includes the following:
13.2.2.1 Costs of materials and
equipment purchased directly by the Design/Build Contractor and incorporated
into or consumed in the performance of the Work, including transportation charges,
and a reasonable and customary allowance for waste and spoilage. Payment for stored materials is subject to
the Uniform General and Supplementary Conditions.
13.2.2.2 Costs of site debris removal
and disposal in accordance with all applicable laws and regulations if not
otherwise included in General Conditions.
13.2.2.3 Payments made to
Subcontractors and their vendors or suppliers by Design/Build Contractor for
the subcontract work in accordance with the Construction Documents and the
requirements of the subcontracts with the Subcontractors, vendors or suppliers.
13.2.2.4 Payments earned by
Design/Build Contractor for self-performed subcontract work, other than General
Conditions work, in accordance with the Construction Documents and the terms of
this Agreement and approved by the Owner.
13.2.2.5 Testing fees pursuant to the
Uniform General and Supplementary Conditions.
13.2.2.6 Intellectual property
royalties and licenses for items specifically required by the Construction
Documents which are, or will be, incorporated into the Work.
13.3
Design/Build Contractor’s Contingency
13.3.1
The Guaranteed Maximum Price Proposal may include a
Design/Build Contractor’s Contingency amount to be used to fund
increases in the Direct Construction Cost of the Project identified through the
refinement, development and completion of the Construction Documents or
procurement of the Work.
13.3.2
Any re-allocation of funds from the Design/Build
Contractor’s Contingency to cover increases in the Direct Construction Cost
must be approved by the Owner in advance and in writing, such approval not to
be unreasonably withheld. In written
requests to use the Design/Build Contractor’s Contingency, the Design/Build
Contractor shall provide detailed documentation of the scope of work affected and
the bases for any increases in costs.
13.3.3
The Design/Build Contractor’s Contingency is specifically
not to be used for Contractor rework, unforeseen conditions, cost
increases caused by lack of coordination or communication with the Project
Architect or trade Subcontractors, or to correct errors or omissions in the
Construction Documents.
13.3.4
As the Construction Documents are finalized
and the Buyout of the Work progresses the Design/Build Contractor’s Contingency
amount shall be reduced by mutual agreement of Owner and Contractor. Any balance in the Design/Build Contractor’s
Contingency fund remaining at the end of the Project shall be returned to the
Owner as savings.
ARTICLE 14 CONSTRUCTION
PHASE FEE
The Design/Build Contractor’s
Construction Phase Fee is the maximum amount payable to the Design/Build
Contractor for any cost or profit expectation incurred in the performance of
the Work that is not specifically identified as being eligible for
reimbursement by the Owner elsewhere in the Agreement. References in the Uniform General and Supplementary
Conditions to Design/Build Contractor’s “overhead” and “profit” mean the
Design/Build Contractor’s Construction Phase Fee. The Construction Phase Fee includes, but is
not limited to, the following items.
14.1
All profit, profit expectations and costs associated with
profit sharing plans such as personnel bonuses, incentives, and rewards;
company stock options; or any other like expenses of the Design/Build
Contractor.
14.2
Salaries of Design/Build Contractor’s officers, project
manager(s), estimators, schedulers and all other employees not stationed at the
Project site and performing services directly related to the Project.
14.3
Any and all overhead, labor or general expenses of any kind
unless specifically allowed under General Conditions. These costs include, but are limited to:
costs for the purchase, lease, rental of or allowance for vehicles and their
maintenance, radios/communication equipment, jobsite computers and other
business equipment, and specialized telephone systems, including cellular/digital
phones; trade or professional association dues; cost for relocation of any of
the Design/Build Contractor’s personnel; and travel, per diem and subsistence
expense of Design/Build Contractor, its officers or employees except as
specifically allowed under General Conditions.
14.4
All costs associated with Construction Contract
Administration Services including those provide by the Project Architect or
other consultants.
14.5
Any financial costs incurred by the Design/Build Contractor
including the cost of capital or interest on capital, regardless of whether it
is related to the Project, and costs associated with construction warranty
reserves.
14.6
Any legal, accounting, professional or other similar costs
incurred by the Design/Build Contractor, including costs incurred in connection
with the prosecution or defense any dispute, mediation, arbitration, litigation
or other such proceeding related to or arising from the Project.
14.7
Any Federal and/or State income and franchise taxes paid by
Design/Build Contractor. Any fines,
penalties, sanctions or other levies assessed by any governmental body against
Design/Build Contractor.
14.8
Any cost arising out of a breach of this Contract or the
fault, failure or negligence of Design/Build Contractor, its Subcontractors, or
any person or entity for whom they may be liable. These costs include, without limitation: costs to remedy defective, rejected, or
nonconforming work, materials or equipment; costs due to failure to coordinate
the Work or meet CPM Schedule milestones; costs arising from Design/Build
Contractor’s contractual indemnification obligations; liquidated or actual
damages imposed by Owner for failure to complete the Work within the Contract
Time; costs due to the bankruptcy or insolvency of any Subcontractor; and damage
or losses to persons or property.
14.9
The cost of any and all insurance deductibles payable by
the Design/Build Contractor and costs due to the failure of Design/Build
Contractor or any Subcontractor to procure and maintain insurance as and to the
extent required by the Contract Documents.
14.10
Any and all costs that would cause the Guaranteed Maximum
Price, minus the amounts allocated in the GMP for Owner’s Contingency and
Owner’s Special Cash Allowance, to be exceeded.
14.11 Any and all
costs not specifically identified as an element of the Direct Construction
Cost.
ARTICLE 15 CONTRACT
SAVINGS, ALLOWANCES, REBATES AND REFUNDS
15.1
If the allowable, final, verified, audited amount of the
cost of General Conditions, Cost of the Work, Allowance items and Design/Build
Contractor’s Contingency is less than the amount established for each of those
categories in the originally approved Guaranteed Maximum Price Proposal, the
entire difference shall be credited to the Owner as savings and the final
contract amount shall be adjusted accordingly.
When buyout of the Project is at least 85% complete, the Owner may
recognize any savings achieved to that point by issuing a deductive change
order for the saved amount.
15.2
Items to be provided for through Owner’s Special Cash
Allowances shall be clearly identified in the Construction Documents and the
Guaranteed Maximum Price proposal. The
Cost of the Work included in the Allowances shall be determined in accordance
with the Uniform General and Supplementary Conditions. Any claim by the Design/Build Contractor for
an adjustment to an Allowance amount included in the Guaranteed Maximum Price
based on the cost of Allowance work shall be made within a reasonable time
after the issuance of the Construction Documents for the Allowance items. The Design/Build Contractor shall not be
entitled to any increase in its Construction Phase Fee for increases to
Allowance amounts that were initially based on estimates provided by the
Design/Build Contractor. Owner shall be
entitled to retain 100% of the balance of any unused Allowance amount.
15.3
The Owner shall be entitled to deduct amounts for the
following items from any Application for Payment or from the Request for Final
Payment submitted by the Design/Build Contractor:
15.3.1
The fair market value of all tools, surplus materials,
construction equipment, and temporary structures that were charged to the Work
(other than rental items) but were not consumed during construction or retained
by the Owner. Upon completion of the
Work or when no longer required, Design/Build Contractor shall either credit
the Owner for the fair market value (as approved by the Owner) for all surplus
tools, construction equipment and materials retained by the Design/Build
Contractor or, at Owner’s option, use commercially reasonable efforts to sell
the surplus tools, construction equipment and materials for the highest
available price and credit the proceeds to the Owner’s account.
15.3.2
Discounts earned by the Design/Build Contractor through
advance or prompt payments funded by the Owner.
The Design/Build Contractor shall obtain all possible trade and time
discounts on bills for material furnished, and shall pay bills within the
highest discount periods. The
Design/Build Contractor shall purchase materials for the Project in quantities
that provide the most advantageous prices to the Owner.
15.3.3
Rebates, discounts, or commissions obtained by the
Design/Build Contractor from material suppliers or Subcontractors, together
with all other refunds, returns, or credits received for materials, bond
premiums, insurance and sales taxes.
15.3.4
Deposits made by Owner and forfeited due to the fault of
the Design/Build Contractor.
15.3.5
Balances remaining on any Allowances, the Design/Build
Contractor’s Contingency, or any other identified contract savings.
15.4
Owner shall be entitled to recover any savings realized between the
Guaranteed Maximum Price and the buyout price for subcontracting work, provided however, that Design/Build Contractor
may use such savings to offset other buyout packages that exceed the amounts
identified in the initial Guaranteed Maximum Price, so long as the total Cost
of Work proposed in the Guaranteed Maximum Price does not increase.
15.5
Owner shall be entitled to recognize and recover 100% of
any savings identified by cost review or audit at any time, before or after
Final Payment.
ARTICLE 16 PRE-EXISTING CONDITIONS; DESIGN
ERRORS AND OMMISIONS
16.1
The Design/Build Contractor acknowledges that it was afforded
unrestricted access to the existing improvements and conditions on the Project
site and it has thoroughly investigated the those conditions. The results of Design/Build Contractor’s
investigation have been taken into account in establishing the Guaranteed
Maximum Price of the Work. Therefore,
Design/Build Contractor shall not make or be entitled to any claim for any
adjustment to the Contract Time or the Contract Sum for Design Phase Services
or for Construction Phase Services arising from Project conditions that
Design/Build Contractor discovered or, in the exercise of reasonable care,
should have discovered in Design/Build Contractor’s investigation.
16.2
Before proceeding with the Work, the Design/Build Contractor shall
review the drawings, specifications and other Construction Documents and notify
the Owner of any errors, omissions or discrepancies in the documents of which
it is aware. Design/Build Contractor is
responsible for discovering and correcting any error, omission, conflict,
inconsistency or lack of clarity, in the Construction Documents prepared by
Design/Build Contractor or its Project Architect. Design/Build Contractor shall be responsible
for all costs, including the cost of redoing or remedying the Work and time
delays, resulting from any error or omission in the Contract Documents.
ARTICLE 17 BONDS
AND INSURANCE
17.1
Within ten (10) days of the Effective Date of this Agreement,
Design/Build Contractor shall provide a security bond in a form acceptable to
the Owner in the amount of 5% of the Construction Cost Limitation. The surety for a security bond shall meet the
same requirements as set forth for payment and performance bonds.
17.2
Within ten (10) days of acceptance by the Owner of a Guaranteed Maximum
Price Proposal, Design/Build Contractor shall provide performance and payment
bonds on forms prescribed by Owner, in accordance with the requirements set
forth in the Uniform General and Supplementary Conditions. The penal sum of the payment and performance
bonds shall be equal to the Guaranteed Maximum Price or, if a Guaranteed Maximum
Price has not been established, the penal sum of the bonds shall be equal to
the Owner’s Construction Cost Limitation for the entire Project. When a Guaranteed Maximum Price is
established, Design/Build Contractor shall provide revised performance and
payment bonds in the amount of the GMP.
If construction is phased or staged with different Guaranteed Maximum
Prices established at different times, the penal sum of the bonds shall be
increased at the start of each stage or phase based on the cumulative total
value of all Guaranteed Maximum Prices in effect.
17.3
The Design/Build Contractor shall carry professional liability and
errors and omissions insurance, covering the design services provided under
this Agreement, as is acceptable to and approved by the Owner. Such insurance shall have minimum policy
limits of One Million Dollars ($1,000,000) in the aggregate and One Million
Dollars ($1,000,000) per claim. The fees
for such insurance will be at the expense of the Design/Build Contractor. The Design/Build
Contractor shall maintain such insurance throughout the course of the Work and
for a minimum of one (1) year following Substantial Completion of the
Work. A Certificate of Insurance
indicating the expiration date of the Design/Build Contractor’s professional
liability insurance is required. No
policy providing such insurance shall be cancelled without thirty (30) days
prior written notice to the Owner. If
Design/Build Contractor is performing the Design Services, then the
professional liability insurance shall be in Design/Build Contractor’s name and
shall include a Design/Build Endorsement in form acceptable to Owner. If Design/Build Contractor is furnishing the
Design Services through others, then the professional liability policy or
policies shall be in the name of the respective professionals performing such
services, which shall include all architects and engineers furnishing services
for the Project, and Design/Build Contractor shall also provide a Contractor’s
Errors and Omissions policy naming it as the insured. If Design/Build Contractor is performing some
design services and furnishing others, then the insurance policies shall be
provided covering all design entities in accordance with the previously stated
requirements.
17.4
Prior to commencing any work under the Agreement, the following
insurance coverages shall be provided by the Design/Build Contractor:
17.4.1
Pre-Construction Phase: Design/Build Contractor shall provide evidence as
required by this Article that coverages for Professional Liability and Errors
and Omissions; Contractor’s Errors and Omissions; Employer’s Liability,
Workers’ Compensation, Commercial General Liability, and Automobile Liability,
as set forth in the Uniform General and Supplementary Conditions, are in full
force.
17.4.2
Construction Phase: In addition to those coverages
required for the Pre-Construction Phase, Builder’s Risk and Owner’s Protective
Liability, as set forth in the Uniform General and Supplementary Conditions,
shall also be provided. The Builder’s Risk policy shall include coverage for
loss or damage caused by certified acts of terrorism as defined in the
Terrorism Risk Insurance Act.
17.5
In the event that the Owner implements an Owner Controlled Insurance
Program (OCIP), the Design/Build Contractor will be required to provide
insurance coverages as listed below:
17.5.1
Pre-Construction Phase: Provide
those coverages specified above for the Pre-Construction Phase. OCIP does not provide coverages during the
Design Phase.
17.5.2
Construction Phase: Provide coverages for
Professional Liability and Errors and Omissions; Contractor’s Errors and
Omissions; Comprehensive Automobile Liability, Owners’ Protective Liability and
Builder’s Risk, as set forth in the Uniform General and Supplementary
Conditions.
17.5.3
Refer to the Owner’s Project Insurance (OCIP) Specification for a complete listing of coverage’s provided
by the OCIP.
17.6
The Owner shall not approve payment for the Design/Build Contractor’s
additional general liability insurance, builder’s risk or any other form of
insurance coverage in excess of the required coverage amounts specified in this
Agreement and in Article 6.1 of the Uniform General and Supplementary
Conditions. The Additional costs for
coverages in addition to those coverages specifically required by this contract
shall be the sole responsibility of the Design/Build Contractor.
ARTICLE 18 DISPUTE
RESOLUTION
18.1
To the extent that Chapter 2260, Texas
Government Code, is applicable to this Agreement and is not preempted by other applicable law, the
dispute resolution process provided for in Chapter 2260 and the related rules
adopted by the Texas Attorney General pursuant to Chapter 2260, shall be used
by Owner and Design/Build Contractor to attempt to
resolve any claim for breach of contract made by Design/Build Contractor that
cannot be resolved in the ordinary course of business.
18.2
The Owner designates the Assistant Vice Chancellor for Facilities
Planning and Construction as its representative to examine Design/Build Contractor’s claim and to
assert any counterclaim and negotiate with Design/Build Contractor in an effort to resolve such claims. See Article XXVI of the Uniform General and
Supplementary Conditions for additional procedures and limitations.
18.3
The parties hereto specifically agree that neither the execution of
this Agreement by Owner nor any other conduct, action or
inaction of any representative of Owner
relating to this Agreement constitutes
or is intended to constitute a waiver of Owner’s or the state's sovereign immunity to suit; and that Owner
has not waived its right to seek redress in the courts.
ARTICLE 19 PROJECT
TERMINATION AND SUSPENSION
19.1
This Agreement may be terminated during Design
Phase Services by either party upon fifteen (15) days written notice should the
other party fail substantially to perform in accordance with its terms through
no fault of the party initiating the termination, and such failure to perform
is not cured within such fifteen (15) day period.
19.2
This agreement may be terminated by the Owner
during Design Phase Services upon at least three (3) days written notice to the
Design/Build Contractor in the event that the Project is to be temporarily or
permanently abandoned.
19.3
At its sole discretion and option, the Owner may
terminate this Agreement after the conclusion of the Pre-Design Stage,
Schematic Design Stage, Design Development Stage, or the Construction Documents
Stage of the Pre-Construction Phase or any time prior to acceptance of a
Guaranteed Maximum Price Proposal.
19.4
In the event of termination that is not the fault
of the Design/Build Contractor, the Design/Build Contractor shall be entitled
to compensation for all services performed to the termination date together
with Reimbursable Expenses then due provided, however, Design/Build Contractor has
delivered to Owner such statements, accounts, reports and other materials as
required by below together with all reports, documents and other materials
prepared by Project Architect prior to termination. Upon such
payment, Owner shall have no further obligation to the Design/Build Contractor.
19.5
Termination of this Agreement shall not relieve Design/Build Contractor
or any of its employees, subcontractors, or consultants of liability for
violations of this Agreement or for any act or omission, or negligence, of
Design/Build Contractor. In the event of
a termination, Design/Build Contractor hereby consents to employment by Owner
of a substitute Design/Build Contractor to complete the services under this
Agreement, with the substitute Design/Build Contractor having all rights and
privileges of the original Design/Build Contractor of the Project.
19.6
As of the date of any termination of this Agreement, Design/Build
Contractor shall furnish to Owner all statements, accounts, reports and other
materials as are required hereunder or as have been prepared by Design/Build
Contractor in connection with Design/Build Contractor’s responsibilities
hereunder. Owner shall have the right to
use the ideas and designs therein contained for the completion of the services
described by this Agreement, and for completion of the Project, or otherwise.
19.7
If the Project is suspended or abandoned in whole
or in part for more than three months, the Design/Build Contractor shall be
compensated for all services performed prior to receipt of written notice from
the Owner of such suspension or abandonment, together with Reimbursable
Expenses then due. If the Project is
resumed after being suspended for more than three months, the Design/Build
Contractor’s compensation for Pre-Construction Phase Services shall be
equitably adjusted if, in the Owner’s reasonable opinion, such adjustment is
warranted.
ARTICLE 20 INDEMNITY
20.1
To the fullest extent
permitted by applicable law, the Design/Build Contractor and its Agents,
Partners, Employees, and Consultants (collectively “Indemnitors”) shall and do
agree to indemnify, protect, defend with counsel approved by Owner, and hold
harmless the Owner and the University of Texas System, its affiliated
enterprises, representatives of the Owner, and their respective Officers,
Directors, Regents, Partners, Employees and Agents (collectively “Indemnitees”)
from and against all claims, damages, losses, liens, causes of action, suits,
judgments and expenses, including attorney fees, of any nature, kind, or
description (collectively “Liabilities”) of any person or entity whomsoever
arising out of, caused by, or resulting from the performance of the Services or
any part thereof which are caused in whole or in part by any negligent act or
omission of the Design/Build Contractor, anyone directly or indirectly employed
by it or anyone for whose acts it may be liable even if it is caused in part by
the negligence or omission of any indemnitee, so long as it is not caused by
the sole negligence or willful misconduct of any Indemnitee. In the event more than one of the Indemnitors
are connected with an accident or occurrence covered by this Indemnification,
then each of such Indemnitors shall be jointly and severally responsible to the
Indemnitees for indemnification and the ultimate responsibility among such
Indemnitors for the loss and expense of any such indemnification shall be
settled by separate proceedings and without jeopardy to any Indemnitee. The indemnity provided for in this article
shall not apply to any liability resulting from the negligence of Owner, its
officers ore employees or its separate contractors or assigned contractors to
the extent that such negligence causes personal injury, death or property
damage. The provisions of this article
shall not be construed to eliminate or reduce any other indemnification or right
which Owner or any of the Indemnitees has by law.
20.2
Design/Build Contractor
shall protect and indemnify the Owner from and against all claims, damages,
judgments and loss arising from infringement or alleged infringement of any
United States patent, or copyright, arising by or out of any of the work
performed hereunder or the use by Design/Build Contractor, or by Owner at the
direction of Design/Build Contractor, of any article or material, provided that
upon becoming aware of a suit or threat of suit for patent or copyright
infringement, Owner shall promptly notify Design/Build Contractor and
Design/Build Contractor shall be given full opportunity to negotiate a
settlement. Design/Build Contractor does
not warrant against infringement by reason of Owner’s or Design Consultant’s
design of articles or the use thereof in combination with other materials or in
the operation of any process. In the
event of litigation, Owner agrees to cooperate reasonably with Design/Build
Contractor and parties shall be entitled, in connection with any such
litigation, to be represented by counsel at their own expense.
20.3
The indemnities contained herein shall survive
the termination of this Agreement for any reason whatsoever.
ARTICLE 21 SPECIAL
WARRANTIES
21.1
Owner and Design/Build Contractor
agree and acknowledge that Owner is entering into this Agreement in reliance on
Design/Build Contractor's represented expertise and ability to provide
design/build services. Design/Build
Contractor agrees to use its best efforts, skill, judgment, and abilities to
perform its obligations and to further the interests of Owner in accordance
with Owner’s requirements and procedures.
21.2
The Design/Build Contractor
represents, and agrees that it will perform its services in accordance with the
usual and customary standards of Design/Build Contractor’s profession or
business and in compliance with all applicable national, federal, state,
municipal, laws, regulations, codes, ordinances, orders and with those of any
other body having jurisdiction over the Project. Design/Build Contractor agrees to bear
the full cost of correcting Design/Build Contractor’s negligent or improper
work and services, those of its consultants, and any harm caused by the
negligent or improper work or services.
21.3
The Design/Build Contractor's duties
shall not be diminished by any approval by Owner nor shall the Design/Build
Contractor be released from any liability by any approval by Owner, it being
understood that the Owner is ultimately relying upon the Design/Build Contractor’s
skill and knowledge in performing the services required hereunder.
21.4
The Design/Build Contractor
represents and agrees that all persons connected with the Design/Build
Contractor directly in charge of its services are duly registered and/or
licensed under the laws, rules and regulations of any authority having
jurisdiction over the Project if registration is required.
21.5
The Design/Build Contractor
represents and agrees to advise Owner of anything of any nature in any
drawings, specifications, plans, sketches, instructions, information,
requirements, procedures, and other data supplied to the Design/Build
Contractor (by the Owner or any other party) that is, in its opinion,
unsuitable, improper, or inaccurate for the purposes for which the document or data
is furnished.
21.6
The Design/Build Contractor
represents and agrees to perform its services under this Agreement in an
expeditious and economical manner consistent with good business practices and
the interests of Owner.
21.7
Design/Build Contractor represents
and agrees that there are no obligations, commitments, or impediments of any
kind that will limit or prevent performance of its obligations under this
Agreement.
21.8
Design/Build Contractor
represents and agrees that the individual executing this Agreement on behalf of
Design/Build Contractor has been duly authorized to act for and to bind
Design/Build Contractor to its terms.
21.9
Except for the obligation of Owner to
pay Design/Build Contractor certain fees, costs, and expenses pursuant to the
terms of this Agreement, Owner shall have no liability to Design/Build
Contractor or to anyone claiming through or under Design/Build Contractor by
reason of the execution or performance of this Agreement. Notwithstanding any obligation or liability
of Owner to Design/Build Contractor, no present or future partner or affiliate
of Owner or any agent, officer, director, employee, or regent of Owner, The
University of Texas System, or of the components comprising The University of
Texas System, or anyone claiming under Owner has or shall have any personal
liability to Design/Build Contractor or to anyone claiming through or under
Design/Build Contractor by reason of the execution or performance of this
Agreement.
ARTICLE 22 CERTIFICATION OF
NO ASBESTOS CONTAINING MATERIALS OR WORK
22.1
With each material submittal for the Project, the
Design/Build Contractor shall provide a material safety data sheet (MSDS) and a
statement certifying that no asbestos containing materials or work is included
within the scope of the proposed submittal.
22.2
The Design/Build Contractor shall ensure that Texas
Department of Health licensed individuals, consultants or companies are used
for any required asbestos work including asbestos inspection, asbestos
abatement plans/specifications, asbestos abatement, asbestos project management
and third-party asbestos monitoring.
22.3
The Design/Build Contractor shall provide at Substantial
Completion, a notarized affidavit to the Owner and the Architect stating that
no asbestos containing materials or work was provided, installed, furnished or
added to the Project.
22.4
The Design/Build Contractor shall take whatever measures he
deems necessary to insure that all employees, suppliers, fabricators,
materialmen, subcontractors, or their assigns, comply with this requirement.
22.5
All materials used on this Project shall be
certified as non Asbestos Containing Building Materials (ACBM). The Design/Build Contractor shall insure
compliance with the following acts from all of his subcontractors and assigns:
22.5.1
Asbestos Hazard Emergency Response Act (AHERA—40 CFR 763-99
(7));
22.5.2
National Emission Standards for Hazardous Air Pollutants
(NESHAP—EPA 40 CFR 61, National Emission Standard for Asbestos;
22.5.3
Texas Asbestos Health Protection Rules, 25 Tex. Admin. Code
Ch. 295 Subchapter C;
22.5.4
Every subcontractor shall provide a notarized statement
that no ACBM has been used, provided, or left on this Project.
22.6
The Design/Build Contractor shall provide, in hard copy and
electronic form, all necessary material safety data sheets (MSDS) of all
products used in the construction of the Project to the Texas Department of
Health licensed inspector or Project Architect or Engineer who will compile the
information from the MSDS and, finding no asbestos in any of the product, make
a certification statement.
22.7
At Final Completion the Design/Build Contractor shall
provide a notarized certification statement per 25 Tex. Admin. Code § 295.34c.1
that no ACBM was used during construction of the Project.
ARTICLE
23 MISCELLANEOUS PROVISIONS
23.1
Assignment.
This Agreement is a personal service
contract for the services of Design/Build Contractor, and Design/Build
Contractor’s interest in this Agreement, duties hereunder and/or fees due
hereunder may not be assigned or delegated to a third party.
23.2
Records of expenses pertaining to
Reimbursable Expenses, Additional Services and services performed on the basis
of a Direct Salary Expense or Monthly Salary Rate shall be kept on the basis of
generally accepted accounting principles and in accordance with cost accounting
standards promulgated by the Federal Office of Management and Budget Cost
Accounting Standards Board and shall be available for audit by the Owner or the
Owner's authorized representative on reasonable notice.
23.3
Child Support
Certification. Pursuant
to Section 231.006, Texas Family Code,
Contractor certifies that it is not ineligible to receive the award of or
payments under this Agreement and acknowledges that this Agreement may be
terminated and payment may be withheld if this certification is inaccurate.
23.4
Eligibility
Certification. Pursuant
to Section 2155.004, Texas Government
Code, Contractor certifies that the individual or business entity named in
this Agreement is not ineligible to receive the award of or payments under this
Agreement and acknowledges that this Agreement may be terminated and payment
withheld if this certification is inaccurate.
23.5
Franchise Tax Certification. A corporate or limited liability company Contractor
certifies that it is not currently delinquent in the payment of any Franchise
Taxes due under Chapter 171 of the Texas
Tax Code, or that the corporation or limited liability company is exempt
from the payment of such taxes, or that the corporation or limited liability
company is an out-of-state corporation or limited liability company that is not
subject to the Texas Franchise Tax, whichever is applicable.
23.6
Payment of Debt
or Delinquency to the State. Pursuant to Sections 2107.008 and 2252.093, Texas Government Code, Contractor agrees
that any payments owing to Contractor under this Agreement may be applied
directly toward any debt or delinquency that Contractor owes the State of Texas
or any agency of the State of Texas regardless of when it arises, until such
debt or delinquency is paid in full.
23.7
Entire Agreement; Modifications. This Agreement supersedes all prior
agreements, written or oral, between Design/Build Contractor and Owner and
shall constitute the entire Agreement and understanding between the parties
with respect to the subject matter hereof.
This Agreement and each of its provisions shall be binding upon the
parties and may not be waived, modified, amended or altered except by a writing
signed by Design/Build Contractor and Owner.
23.8
Captions.
The captions of paragraphs in this Agreement are for convenience only
and shall not be considered or referred to in resolving questions of
interpretation or construction.
23.9
Governing Law and Venue. This Agreement and all of the rights and
obligations of the parties hereto and all of the terms and conditions hereof
shall be construed, interpreted and applied in accordance with and governed by
and enforced under the laws of the State of Texas. Travis County, Texas shall be the sole place
of venue for any legal action arising from or related to this Agreement or the
Project in which the Owner is a party.
23.10
Waivers.
Neither the delay nor the failure of any party to exercise any right or
power accruing to it under any of the provisions of this Agreement shall impair
or be construed as a waiver of that right or power. A waiver by any party of any particular
breach of this Agreement shall not be construed as a waiver of any subsequent
breach unless specifically expressed in writing.
23.11
Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective permitted assigns and successors.
23.12
Appointment.
Owner hereby expressly reserves the right from time to time to designate
by notice to Design/Build Contractor a representative to act partially or
wholly for Owner in connection with the performance of Owner’s obligations
hereunder. Design/Build Contractor shall
act only upon instructions from such representative unless otherwise
specifically notified to the contrary.
23.13
Records.
Records of Design/Build Contractor’s costs, reimbursable expenses pertaining
to the Project and payments shall be available to Owner or its authorized
representative during business hours and shall be retained for three years
after final Payment or abandonment of the Project, unless Owner otherwise
instructs Design/Build Contractor in writing.
23.14
Notices.
All notices, consents, approvals, demands, requests or other
communications provided for or permitted to be given under any of the
provisions of this Agreement shall be in writing. Written notice shall be deemed to have been
given when delivered in person to the designated representative of the
Contractor or Owner for whom it is intended; or sent by registered or certified
U. S. mail to the last known business address of the designated representative;
or transmitted by fax machine to the last know business fax number of the
designated representative. Mail notices
are deemed effective three business days after the date of mailing. Fax notices are deemed effective the next
business day after faxing.
23.15
Severability.
In case any provision hereof shall, for any reason, be held invalid or
unenforceable in any respect, such invalidity or unenforceability shall not
affect any other provision hereof, and this Agreement shall be construed as if
such invalid or unenforceable provision had not been included herein.
23.16 Illegal Dumping. The Design/Build Contractor shall ensure that
it and all of its Subcontractors and assigns prevent illegal dumping of litter
in accordance with Title 5, Texas Health and Safety Code, Chapter 365.
23.17 Ethics Matters/No Financial Interest. Contractor and
its employees, agents, representatives and subcontractors have read and
understand University’s Conflicts of Interest Policy available at [Note: Insert
University’s web page where Policy is posted.] [Option (Include for UT System only.):
http://www.utsystem.edu/policy/policies/int160.html], University’s Standards
of Conduct Guide available at [Note: Insert University’s web page where Guide is posted.]
[Option (Include for UT
System only.): http://www.utsystem.edu/systemcompliance/], and applicable state
ethics laws and rules available at www.utsystem.edu/ogc/ethics. Neither Contractor nor its employees, agents,
representatives or subcontractors will assist or cause University employees to
violate University’s Conflicts of Interest Policy, provisions described by
University’s Standards of Conduct Guide, or applicable state ethics laws or
rules. Contractor represents and warrants that no member of the Board has a
direct or indirect financial interest in the transaction that is the subject of
this Agreement.
23.18 By signature hereon, Design/Build
Contractor certifies that no member of the Board of Regents of The University
of Texas System, or Executive Officers, including component institutions, has a
financial interest, directly or indirectly, in the transaction that is the
subject of this contract.
ARTICLE 24 COMPENSATION
24.1
Construction Cost Limitation
The anticipated
Construction Cost Limitation for the Project at the time this Agreement was
executed is:
Dollars ($ )
24.2
Pre-Construction Phase Fee
For
Pre-Construction Phase Services, Owner shall pay Design/Build Contractor a
Pre-Construction Phase Fee in accordance with the following schedule:
Pre-Design Stage (5%) $
Schematic Design Stage (10%) $
Design Development Stage (20%) $
GMP Development Stage (20%) $
Construction Documents Stage (40%) $
Bid Proposal Stage (5%) $
Total $
24.3
Construction Phase Fee
24.3.1
For Construction Phase Services, Owner
shall pay Design/Build Contractor a stipulated Construction Phase Fee equal to percent ( %) of the Construction
Cost Limitation for the Project.
24.3.2
Based on the anticipated CCL
established at the time of this Agreement, the Construction Phase Fee would be
the total stipulated amount of:
Dollars ($ ).
24.3.3
The Construction Phase Fee includes a fee for Construction
Contract Administration Services in the amount
of:
Dollars ($ ).
24.3.4
If the Owner
agrees to an increase in the Guaranteed Maximum Price during the Construction
Phase, the Construction Phase Fee shall be equitably adjusted by applying the
percentage established in paragraph
24.3.1 to the amount of the increase in the GMP.
24.3.5
The percentage rate established in
paragraph 24.3.1 of this Agreement for calculation of the Construction Phase
Fee cannot be increased except with the express written approval of the
Associate Director for Project Management, Office of Facilities Planning and
Construction.
24.3.6
If the Owner agrees to any increases in the Construction
Cost Limitation during the Construction Phase without increasing the GMP (for example, change orders funded by Owner’s
Special Cash Allowance or Owner’s Construction Contingency) the Design/Build
Contractor’s fee for these increases shall be calculated accordance with the
provisions of the Uniform General and Supplementary Conditions for Change
Orders.
24.4
Limitation on
General Condition Costs
24.4.1
The maximum allowable amount of General Conditions Costs
payable to the Design/Build Contractor during the Construction Phase of the
Project shall not exceed
percent ( %)
of the Construction Cost Limitation for the Project.
24.4.2
Based on the anticipated CCL
established at the time of this Agreement, the maximum allowable amount of
General Conditions Costs would be the total amount of:
Dollars ($ ).
24.4.3
If the Owner agrees to an increase in the Guaranteed
Maximum Price during the Construction Phase
the maximum allowable amount of General Conditions Costs shall be equitably
adjusted by applying the percentage established in paragraph 24.4.1 to the
amount of the increase in the GMP.
24.4.4
The percentage rate established in
paragraph 24.4.1 of this Agreement for calculation of the maximum allowable
amount of General Conditions Costs cannot be
increased except with the express written approval of the Associate Director for
Project Management, Office of Facilities Planning and Construction.
24.4.5
If the Owner agrees to any increases in the Construction
Cost Limitation during the Construction Phase without increasing the GMP (for
example, change orders funded by Owner’s Special Cash Allowance or Owner’s
Construction Contingency) the allowable General Conditions Costs for these
increases shall be calculated accordance with the provisions of the Uniform
General and Supplementary Conditions for Change Orders.
24.5
Additional Design Services Fee
24.5.1
For Additional Design Services of the Project
Architect, its consultants or any other person performing
Additional Design Services that are approved in advance by the Owner, the
Additional Design Services Fee shall be established by one of the following
methods:
a.
A pre-established lump sum amount.
b.
Compensation by the hour for time expended at an
amount not to exceed 2.75 times the Direct Salary Expense for each person
performing services.
c.
As a pre-established percent of the cost of the
item in question.
24.5.2
For Additional Design Services approved in advance
by the Owner, the Design/Build Contractor shall be entitled to a maximum
ten-percent (10%) markup on the established Additional
Design Services Fees that are billed to the Design/Build Contractor. The Project Architect is not entitled to any
markup on services provided by its consultants except as that markup is paid
out of Design/Build Contractor’s allowed markup.
24.6
Reimbursable
Expenses
24.6.1
Reimbursable Expenses for Pre-Construction Phase Services are in
addition to the Compensation for Basic Design
Services and Additional Services. These
include actual out-of-pocket reasonable expenditures made by the Design/Build Contractor, Project
Architect and the Project Architect’s employees and design consultants incurred
solely and directly in connection with the Project Team’s performance of its
Design Services hereunder for the following expenses:
24.6.1.1 Fees paid for securing
approval of authorities having jurisdiction over the Project for design phase services.
24.6.1.2 Professional models and
renderings related to building design as requested by the Owner.
24.6.1.3 When expressly directed and
approved in advance by the Owner, reproductions, printing, binding, collating
and handling of reports, drawings, specifications, and associated shipping and
mailing, or other project-related work product, other than that used solely
in-house for Project Team and its consultants or for project progress/review
meetings.
24.6.1.4 Expense of any additional
insurance coverage or limits, requested by the Owner in, addition to the
coverage required by the contract.
24.6.1.5 Travel from Texas to out of
state locations:
Lodging: Actual cost of lodging, not to exceed 140% of
the “Out of State Meals and Lodging Rates”, established by the Texas Comptroller
of Public Accounts. (Website
http://www.window.state.tx.us/comptrol/san/fm.notices/date.html/fm02/fm02-16_intro.html),
plus city and state taxes.
Meals: Limited to the meal per diem established by
the Texas Comptroller of Public Accounts.
Meal per diem will only be paid on trips involving overnight travel.
24.6.1.6 Travel to Texas from out of
state locations:
Lodging: Actual
cost of lodging, not to exceed 140% of the current State of Texas per diem
rate, plus city and state taxes.
Meals: Limited to the meal per diem established by
the Texas Comptroller of Public Accounts.
Meal per diem will only be paid on trips involving overnight travel.
24.6.1.7 Automobile Expenses Related
to Out-of-State Travel: Actual auto
rental for moderate size category, related auto insurance, gasoline, parking
and taxi service. Costs include
applicable taxes.
24.6.1.8 Airline Travel Actual coach class air travel with rates
nearest to the State contract rate. All
airline travel shall be booked no less than 7 days in advance when possible. Reimbursement for air travel booked within 7
days of departure, without the prior approval of the PM/RCM, may be limited.
24.6.1.9 Unless expressly directed
and approved in writing by the Owner, amounts exceeding the above stipulated
limitations will not be subject to reimbursement.
24.6.2
Unless expressly directed, and approved in advance, by the Owner,
transportation and living expenses incurred within the State of Texas, for
firms whose principal address is within the State of Texas, will not be subject
to reimbursement.
24.6.3
Expenses not allowed for
reimbursement include telephone charges, FAX service, alcoholic beverages,
laundry, valet service, entertainment or any non project related items. All tips must be included within the per diem
allowances.
24.6.4
Owner shall pay a mark-up not to exceed ten percent (10%) on those
reimbursables identified in 24.6.1.1 through 24.6.1.3 above. A mark-up
shall not be paid on lodging, meals or travel expenses. Architect shall submit receipts for all
reimbursable expenses along with any reimbursement request.
ARTICLE 25 OTHER TERMS AND CONDITIONS
25.1
Time of Completion
25.1.1
The anticipated date for achieving Substantial Completion of the
Project at the time this Agreement was executed is:
,
20 .
25.1.2
The
Construction Phase shall be deemed to commence on the date specified in a
Notice to Proceed issued by Owner after approval of the Guaranteed Maximum
Price Proposal.
25.1.3
The Design/Build Contractor shall achieve Substantial Completion of the
Work and Final Completion of the Work on or before the dates agreed
to in the Guaranteed Maximum Price Proposal, subject to time extensions granted
by Change Order.
25.1.4
The times set forth for completion of the
work in the Notice to Proceed with Construction and the Guaranteed Maximum Price Proposal are an essential element of the
Agreement. The Owner may elect, at its option, to stage or
“fast-track” portions of the work. The
Owner shall issue a separate Notice to Proceed or Change Order for each such
stage and each such stage shall have a separate substantial completion date and
a separate liquidated damages amount.
25.2
Liquidated Damages
25.2.1
For each
consecutive calendar day after the Substantial Completion Date that the Work is
not substantially completed, the Owner may deduct the amount of:
Dollars
per day ($ /day)
from any money due or
that becomes due the Design/Build
Contractor, not as a penalty but as liquidated damages representing the
parties' estimate at the time of contract execution of the damages that the
Owner will sustain for late completion.
25.2.2
The parties
stipulate and agree that calculating Owner’s actual damages for late completion
of the Project would be impractical, unduly burdensome, and cause unnecessary
delay and that the amount of daily liquidated damages set forth is reasonable.
25.3
Design
Document Review Sets and Estimated Construction Cost Reports.
Design/Build Contractor shall provide the following design review
document sets along with estimated construction cost reports at the indicated
stage of completion as part of Pre-Construction Services and at no cost to the
Owner:
|
Stage |
Percent Completion |
Number of Sets |
|
Schematic Design: |
50% and 95% |
|
|
Design
Development |
50%
and 95% |
|
|
Construction
Documents |
50%
and 95% |
|
25.4 Notices
Notices of claims or
disputes or other legal notices required by this Agreement shall be sent to the
following persons at the indicated locations.
If to Owner: [Owner’s Project Manager]
Fax No.
With Copies to: Dave
Dixon
U. T. System, OFPC
220 West 7th Street
Austin, TX 78701
If to Design/Build Contractor: [Name]
[Company Name]
[Street Address]
[City, State,
Zip]
[Fax No.]
The parties may make reasonable changes
in the person or place designated for receipt of notices upon advance written
notice to the other party.
25.5 Party
Representatives
25.5.1
The Owner’s Designated Representative authorized to act in the Owner's behalf with
respect to the Project is:
[Name]
[Title]
Austin, Texas
78701
Fax No.
25.5.2
The Design/Build Contractor’s designated representative authorized to act on the Design/Build Contractor’s
behalf and bind the Design/Build Contractor with respect to the Project is:
[Name]
[Title]
Fax No.
25.5.3
The parties
may make reasonable changes in their
designated representatives upon advance written notice to the other party and
in accordance with Paragraph 4.8.
25.6
Site Observation
Requirements.
The Project Architect, and his related consultants, shall inspect the
Project site at intervals appropriate to the type and stage of construction
progress but at least times each month during the entire Construction
Phase to observe the progress and quality of the Work. In addition, each consultant shall visit the
site at least time each month to observe construction
activities related to the consultant’s discipline.
25.7
Job Conferences. The Design/Build Contractor
shall conduct a minimum of job conferences each month.
25.8
Partnering. For the benefit of all
parties, as a part of Basic Services, the Design/Build Contractor and his
entire consultant team shall attend ( )
full day Partnering session(s) in ____________,__________; the first at the
beginning of the Pre-Construction Phase and the second at the beginning of the
Construction Phase.
Include
the following if the Design/Build Contractor will be providing Programming
services:
25.9
Programming. The Design/Build Contractor in
consultation with the Owner and Design/Build Contractor’s entire consultant
team (including, but not limited to, the Project Architect, the
Mechanical/Electrical/Plumbing Engineer, the Civil Engineer, the Hazardous
Material Abatement Consultant and the Commissioning Consultant, as appropriate)
shall prepare a comprehensive Facility Program for the Project. The Facility Program shall be prepared in
accordance with the U. T. System Facilities Programming Guidelines. The Design/Build Contractor shall meet with
representatives of the Owner as required during development of the Facility
Program and shall revise the Facility Program as necessary to incorporate the
Owner’s comments and requirements.
Include the following if the Project will utilize an Owner
Controlled Insurance Program:
25.10
OCIP. Owner intends to implement an
Owner Controlled Insurance Program (OCIP) on this Project to provide specific
insurance coverage for the Construction Phase.
The Pre-Construction Phase is excluded from the OCIP program.
25.10.1
Design/Build Contractor
shall develop the GMP Cost of the Work without
including the cost of premiums for insurance coverage provided under the
Owner’s Controlled Insurance Program.
The GMP Cost of the Work should include the cost of premiums of all
other insurance required by the Agreement or otherwise desired by the
Design/Build Contractor for the Project (e.g., builder’s risk, automobile,
hazardous material abatement, etc.).
25.10.2
Design/Build Contractor
shall include the OCIP information in trade packages and indicate on bid or
proposal forms that bidders/proposers are to include insurance in their base
proposals and provide a deductive alternate for the Owner to provide insurance
under the OCIP program.
25.10.3
Design/Build Contractor
shall record and provide the Owner with the amounts of the deductive alternates
from the recommended subcontractors (these amounts become the “initial and
minimum deduction” for each subcontractor), and to award the subcontracts
accepting the deductive alternate. The
total of these deducts establishes the Owner’s “baseline” for tracking the
actual costs.
25.10.4
During construction,
U. T. System shall audit the subcontractor’s labor hours to determine
actual insurance costs.
25.10.5
If the audit indicates
that actual insurance costs exceed the initial and minimum deduction for a
subcontractor, then the Owner’s representative shall direct the Design/Build
Contractor to advise the subcontractor of the deductive shortfall and shall
cause the issuance of a deductive Change Order which will be issued to the
Design/Build Contractor, who, in turn, shall pass on associated costs to the
subcontractor.
Include the following three Articles for U. T. Austin
Projects. Optional use by other
campuses:
25.11
Project
Architect shall utilize a CADD drawing-layering standard comparable to the
current AIA standard and shall review proposed standard with the Owner prior to
commencing drawing preparation.
25.12
Project
Architect shall provide the Owner, at between one month and three months prior
to Substantial Completion, with a complete current electronic set of the
architectural floor plan drawings with room names, room numbers, and room
square footages indicated. Project Architect shall provide 2 copies of
electronic media on zip drives and/or CD readable/writable. Project Architect shall not be relieved of
responsibility when files are delivered if the files do not meet established
requirements or are defective. Owner shall verify all files and Project
Architect will be notified of acceptance.
25.12.1
Room names, Room numbers, and square footage shall be
linked to data fields using appropriate attributes
for text and number fields. Microsoft Access 2000 shall be used as the
database. Project Architect shall provide data layering proposal for approval,
per item 14.15.
25.12.2
Provide floor plans in electronic
format using AutoCAD 14 or 2000. MicroStation J or SE shall also be accepted,
but Microstation users shall be required to save to Autocad format. Verify database for correctness prior to
delivering data files.
25.13
Project Architect shall revise the drawings and specifications upon
Final Completion of the construction, to incorporate all Addenda, all Change
Orders for the Work and any modifications recorded by the Contractor on the As-Built Drawings
and Specifications maintained at the job site.
The Project Architect shall label the revised drawings and
specifications as “Record Drawings” and “Record Specifications” and shall
deliver copies to the Owner for record purposes, as follows:
25.13.1
All
project drawings: provide 2 copies of electronic
media on zip drives and/or CD
readable/writable using AutoCAD 14 or 2000. MicroStation J or SE shall
also be accepted for the
deliverables, but Microstation users shall be required to save to Autocad
format.
25.13.2 All project specifications in
electronic format on CD readable/writable by MSWord.
ARTICLE 26 EXHIBITS
The following exhibits are incorporated by reference as
part of this Agreement and the Contract:
Exhibit A Uniform
General and Supplementary Conditions
Exhibit B Additional
Contract Documents and Specifications
Exhibit C Allowable
General Conditions Line Items
Exhibit D Guaranteed
Maximum Price Proposal Form
Attachment
1 to Exhibit D Guidelines
for the Preparation of the GMP
Attachment
2 to Exhibit D Payment
and Performance Bonds
Exhibit E Security
Bond
Exhibit F D/B’s
Personnel and Monthly Salary Rates
Exhibit G Constructability
Implementation Program
Exhibit H Policy
on Utilization, Historically Underutilized Businesses
Exhibit I HUB
Subcontracting Plan for Pre-Construction Phase Services
Exhibit J Additional
Services Proposal
Exhibit K Project
Architect’s Personnel, Titles and DSE Rates
Exhibit L Hazardous
Material Abatement General Scope of Work
BY SIGNING BELOW, the Parties hereto have executed and
bound themselves to this Agreement as of its Effective Date.
|
ATTEST: (Seal) |
(Design/Build Contractor) |
|
By: (original signature) |
By: (original signature) |
|
(name and title typed) |
(name and title typed) |
|
|
Date: |
|
|
|
|
|
|
|
CONTENT APPROVED: Office of Facilities Planning and Construction The University of Texas System |
BOARD OF REGENTS THE UNIVERSITY OF TEXAS SYSTEM (Owner) |
|
By: (original signature) |
By: (original signature) |
|
Sidney J. Sanders Assistant
Vice Chancellor for Facilities Planning and Construction |
Philip R. Aldridge Interim Vice Chancellor
for
Business Affairs |
|
|
Date: |
EXHIBIT A
Uniform general and
supplementary conditions
EXHIBIT B
ADDITIONAL
CONTRACT DOCUMENTS AND SPECIFICATIONS
1.
Special
Conditions
2.
Attachment
“A” – Prevailing Wage Determination
3.
Attachment
“B” – Weather Data
4.
Attachment
“C” – Project Sign Layout
5.
Attachment
“D” – Year 2000 Performance Warranty
6.
Project
Insurance (OCIP) – Section 00710
(Optional)
7.
Project
Safety – Section 01070
8.
Project
Planning and Scheduling – Section 01150
9.
Project
Administration Requirements – Section 01210
10.
Project
Quality Control – Section 01400
11.
Storm
Water Management and Controls – Section 01565
12.
Project
Commissioning – Section 01650
13.
10
Project Closeout Requirements – Section 01705
14.
11Carpet
– Section 09680
15.
12
Cast Bronze Dedicatory Plaque – Section 10403
16.
14
HUB Participation Program with Exhibits A, B, C, D, E, and F
17.
15
Sample Payment Request Forms for A/E Services
18.
16
PDRI for Buildings
19.
17
Supplemental Attachments to the Insurance Information Package
EXHIBIT C
ALLOWABLE
GENERAL CONDITION LINE ITEMS
On-Site Project Management Staff
Safety
Coordinator/Assistant(s) CPM
Scheduler
Project
Executive Superintendent(s)
Office
Engineer(s) Project
Manager(s)
Project
Expeditor(s) Project
Support Staff
Assistant
Superintendent(s) Out-of-State
Project Specific Travel*
Bonds and Insurance
Builder’s Risk Insurance
General Liability Insurance
Payment and Performance
Bonds
Other Project Insurance as
Required by Contract
Temporary Project Utilities
Dumpsters Project
Water
Project Electricity Temporary
Toilets
Monthly Telephone Service Temporary
Fire Protection
Street Rental and Barricades Telephone
System Installation
Fencing and Covered Walkways
Temporary Water Distribution
and Meters
Temporary Electrical
Distribution and Meters
Site Erosion Control (BMP)
and Project Entrance(s)
Field Offices & Office Supplies
Partnering Costs First
Aid Supplies
Job Photos/Videos Reproduction
Services
Project Specific Signage Monthly
Office Supplies
Postage/Special Shipping Remote
Parking Expenses
Project/As-Built Drawings Project
Reference Manuals
Project
Milestone Event(s)* Security System/Watchman
Move-In/Out and Office Setup Safety Material
and Equipment
Employee Identification
System Drinking
Water and Accessories
Small Tools and Storage
Trailers Office
Clean-Up/Janitorial Services
Monthly Office Trailer
Rental Costs
Mobilization and
Demobilization (Equipment Only)
* Specific
justification and all estimated costs shall be submitted and approved by the
Owner prior to any travel or event.
EXHIBIT D
GUARANTEED
MAXIMUM PRICE PROPOSAL
The Design/Build Contractor hereby submits to The Board of Regents of
The University of Texas System for the use and benefit of The University of
Texas _______________________________
[CM
-Insert Component Name]
pursuant to the provisions of Article 7 of the
Agreement by and between The Board of Regents of The University of Texas System
for the use and benefit of The University of Texas _______________________________
and ______________________________________ dated
[CM
- Insert Component Name] [CM - Insert Design/Build Contractor Name]
__________________________, 20___ (the
Agreement”), a Guaranteed Maximum Price (GMP)
[CM - Insert Month and Day]
for the
_________________________________________________________________ Project,
[CM
- Insert Project Name and St]
project number _________ -
__________ (as defined in the Agreement), based on the Contract
[CM - Insert Project No.]
Documents (as defined by the Agreement)
developed for the Project, as follows:
|
1.
A not-to exceed amount for the Cost of the Work pursuant to the Agreement: |
$______________________ |
|
2.
A not-to exceed amount for the General Conditions
pursuant to the Agreement: |
$______________________ |
|
3.
A not-to exceed amount for the Design/Build Contractor’s
Contingency pursuant to the Agreement: |
$______________________ |
|
4.
A lump sum amount for the Construction Phase Fee pursuant
to the Agreement: |
$______________________ |
|
5.
Owner’s Special Cash Allowance provided by the Owner: |
$______________________ |
|
6.
Owner’s Construction Contingency provided by the Owner. This is a lump sum amount from which
changes are to be paid in accordance with the Uniform General Conditions and
the Supplementary General Conditions.
Any unused amount will be deducted from the Guaranteed Maximum Price
by Change Order: |
$______________________ |
|
7. TOTAL OF GMP LINE ITEMS 1 THROUGH 6: |
$______________________ This figure shall be the Guaranteed
Maximum Price (GMP), which we hereby guarantee to the Owner. |
GUARANTEED MAXIMUM PRICE PROPOSAL Signature page
(Continuation
of Exhibit D)
|
Corporations/LLC’s:
Attest: Corporate
Secretary Other business
forms: Witness: |
[ Design/Build
Contractor] By: Name:
[Print or Type] Title: |
|
SEAL: |
Date of
Signature: _____________________ |
|
CONTENT APPROVED: Office of Facilities Planning and Construction By: (Original
Signature) Name: Sidney J. Sanders Title: Assistant Vice
Chancellor for Facilities Planning
and Construction |
ACCEPTED AND AGREED: The Board of Regents of The University of Texas System for the
use and benefit of The University of Texas . [Component
Name] By: (Original Signature) Name: Philip
R. Aldridge Title: Interim Vice
Chancellor For Business Affairs Date: |
ATTACHMENT
1 TO EXHIBIT D
GUIDELINES FOR THE PREPARATION OF THE
GUARANTEED MAXIMUM PRICE PROPOSAL
1.
CONTRACT REQUIREMENTS:
Refer to Article
7 of the Agreement. The provisions of
the GMP are defined here and other related requirements are included throughout
the Agreement. In the event of
irreconcilable conflict between the GMP Proposal and the Agreement, the
interpretation that provides for the higher quality of material and/or
workmanship shall prevail.
The GMP Proposal
shall adopt and incorporate all of the terms and conditions of the
Agreement. Any exceptions to or
modifications of such terms and conditions proposed shall not be effective
unless they are expressly stated and conspicuously identified in the GMP
Proposal and are specifically accepted and approved by the Owner, In general,
proposed revisions or modifications to the language, terms or conditions of the
Agreement will not be accepted.
2.
PRE SUBMITTAL REQUIREMENTS:
A. Scope
Definition: Prior to GMP submittal, the Contractor shall thoroughly review the
GMP construction document package with the Owner and determine if the scope is
sufficiently defined and identify those areas requiring additional scope
definition. As a minimum the following
should be defined: Program building size, site limits and access, utility
systems (existing and new), complete building systems descriptions, materials
outline by division, MEP systems descriptions including materials, MEP system
options shall be defined and accepted.
Refer to the section “PDRI For Buildings” which is an attachment to the
Agreement for additional guidelines. The
PDRI checklist must be completed at this time.
B. Estimated
Construction Cost: Cost estimates shall
be updated concurrently with the construction document development.
C. Schedule: The anticipated Notice To Proceed and
Substantial Completion dates shall be coordinated and approved by the User and
OFPC.
D. Value
Engineering: Proposed value engineering items included in the GMP shall be updated
from previously submitted value engineering and should reflect the “final
acceptance” of VE items, which are part of the scope of work. The VE schedule shall identify current
acceptance and the date of acceptance in an adjacent column. VE items must be resolved and accepted by the
Owner prior to GMP submittal.
E. Pre-submittal
Conference: The Contractor shall schedule a conference with the Project Manager
no later than six (6) weeks prior to submitting the GMP to the Owner. Issues regarding the required materials to be
included in the GMP should be reviewed so that there is a clear understanding
of the format and contents of each division of work to be submitted. The Contractor shall obtain a copy of the
“OFPC Standard Schedule of Values Format” from the OFPC Project Manager. Additionally, a review of acceptable “General
Condition” items, as defined in the Agreement, is required.
3.
CONSOLIDATION OF REVIEW COMMENTS:
The Campus, the Owner’s Engineers, the Project Manager, and the
OFPC Controls Department shall provide review comments. The Contractor shall consolidate all
responses to those groups into TAB 9 of the document. Each owner comment shall have a corresponding
answer directly below the original comment.
A reply to each owner comment is required even if only a clarification
is required. Each reply shall state
where in the GMP Proposal the corresponding information may be located.
4.
GENERAL REQUIREMENTS;
The GMP Proposal shall be submitted at the phase specified by the
Owner. The GMP Proposal shall be
submitted in the format described below.
Proposals substantially deviating from the organization’s format will be
returned to the Contractor for re-submittal.
Proposals not in compliance with the format, which result in substantial
delay, will be the responsibility of the Contractor and may not extend the
construction duration or substantial completion date.
5.
MULTIPLE GMP’S:
In order to expedite the project
schedule, the Owner and Contractor may execute multiple GMP Proposals (stages),
which shall be incorporated into the contract through a change order to the
previous approved GMP Proposal(s), identified in Article 7. The requirements for this method shall be
identical to the requirements for the first GMP submittal/approval process.
6.
GMP PROPOSAL PACKAGE
The GMP Proposal shall be bound in 3-ring notebook or spiral
notebook and entitled “Guaranteed Maximum Price Proposal”. Below it the following items shall be shown:
·
Submittal number (i.e. Submittal #1)
·
Date of Submittal
·
OFPC Project Name
·
Campus/Institution Name
·
OFPC Project Number
Since several submittal revisions may be submitted, always state
which submittal number is currently being submitted.
All pages within each tab shall be
numbered.
The proposal shall be organized in the
order described below:
TABLE OF CONTENTS
·
List all the following items. Provide a brief summary of the major
components within each Tab.
TAB 1 – Guaranteed Maximum Price
Proposal (Exhibit D)
·
Refer to the GMP Proposal document attached to this
Exhibit. Type in the cost amounts and
sign, attest, date and seal the form.
·
In addition to the bound notebooks, provide two (2) loose
original executed copies. (Do not bind into spiral notebooks.)
·
Do not alter any language from the original document
without prior approval from the Contract Manager.
·
Do not electronically alter the document.
·
Each line item cost must exactly match the corresponding
cost summary shown on the TAB 6 GMP Proposal Cost Breakdown.
·
Provide a Corporate Resolution or Articles of Organization,
stating individual’s authorization to execute contracts on behalf of the
corporation, for any individual signing the GMP, who is not the President or
CEO of the firm.
TAB 2 - Executive Project Summary
·
State any amended services or scope changes included in the
Proposal.
·
Provide a brief project summary defining the scope of work
associated with the construction phase of work included in this GMP Proposal.
·
Include the description of building type, size, character
and general materials.
·
Summarize any relationship with existing structures,
unusual site conditions, utility issues, or conditions effected by other
governmental agencies (i.e. right-of-way issues)
·
State the anticipated Notice to Proceed date and
Substantial Completion date.
TAB 3
- Project Team
·
List the various teams and the team members, in graphic and
written form, for including names, titles, job responsibilities, and contact
information.
·
Identify all consultants.
TAB 4 - List of Documents
·
Drawings Index – provide detailed listing of each sheet
number, sheet title, original date of drawing, revised date of drawing
·
Specification Index:
·
Provide a detailed listing of each specification section
required by the Owner as identified in the Agreement (see the Exhibit for
“Owner’s Specifications”)
·
Provide a detailed listing of all other spec sections
describing the project.
·
Specifications shall be organized by CSI Division
format. State the name, original date of
issue, and a column for revision date.
TAB 5
- Qualifications and Value Engineering
·
Qualifications – A summary of all qualifications and
assumptions organized by drawing sheet number or by specification sections to
match those in TAB 4.
·
Exclusions – A summary of exclusions organized by drawing
sheet number or by specification section.
·
Substitutions – A summary of substitutions to materials or
systems described by drawing sheet number or by the specifications listed in
TAB 4. Organize by specification
section.
·
Value Engineering Recommendations - List all items proposed
to date and for each item identify if the item is accepted by the Owner and
included in the GMP. State the date of
acceptance. In addition identify those
VE items not currently accepted. State
if the price is good for a limited time period.
TAB 6 - GMP Proposal Cost Breakdown
·
Provide an Estimated Construction Cost breakdown on the
OFPC Standard Schedule of Values Format for Cost of the Work based on anticipated
subcontracts organized by CSI Division format, General Conditions per
exhibit, Contractor’s Contingency, Construction Phase Fee, any Owner’s Special
Cash Allowance and/or Owner’s Construction Contingency as identified by the
Owner.
(An electronic copy is available upon request)
·
The Contractor shall provide a breakdown for all Allowable
General Condition Line Items by unit cost and duration, including completion of
the attached “DB’s Personnel and Monthly Salary Rate” for all salary employees
assigned to the Project.
·
The Contractor shall include an updated Exhibit J, “DB’s
Personnel and Monthly Salary Rates” identifying any new staff or rate
modifications. Bold any revisions.
·
The Contractor shall provide a detailed initial Total
Project Construction Cost Estimate using standard estimating industry
practices, utilizing the CSI Division format, with any additional cost breakdown
as required by the OFPC Project Manager.
TAB 7 - Master
Project Schedule (Summary Level)
·
The Summary Level schedule shall be submitted
electronically on a 3.5” diskette or CD and on
paper bound with the GMP Proposal.
·
Summary Schedule Requirements
·
The schedule shall comply with the requirements of Owner’s
Specification Section 01150 and shall form the basis for the “Detail” schedule,
which shall be submitted within sixty (60) days following Notice to Proceed for
Construction Services.
·
The schedule shall be a computer generated CPM schedule
developed in Primavera Project Planner software.
·
The schedule shall be presented in “bar chart” form and
contain detailed activities for all events and milestones included in
Pre-construction (Part I) Services
·
The schedule shall include detailed, logic driven
activities for all Construction Service activities scheduled to commence during
the first ninety (90) days following the Notice to Proceed for
Construction. The remaining construction
activities (those commencing after the first 90 days) may be summarized by
trades and may have longer durations than the “detailed” activities mentioned
above.
·
Total Float
·
The total float indicated on the Master Project Schedule
shall be no less than 10% of the total Construction Phase duration (NTP to
Substantial Completion). i.e. - All
paths in the schedule must lead to a milestone activity for Substantial
Completion, which shall be logic driven and indicate completion within
approximately 90% of the time allowed by contract for the Owner established
Substantial Completion Date.
TAB 8 - Bid/Proposal Package Strategy
·
The Contractor shall provide a written Bid/Proposal Package
Strategy for procuring subcontracts including self-performance work (other than
General Conditions) as described in Owner’s Specification Section 01210.
TAB 9
- Historically Underutilized Business Plan
·
Complete the attachments required by exhibit of the
Agreement.
·
For all first and second tier subcontractors currently
under contract or anticipated to be contracted with, provide completed
Attachments C, D, and E.
·
A completed HUB Subcontracting Plan shall be delivered to
Owner at the time of final subcontracting buyout.
TAB 10 - Responses to Review Comments
·
For resubmitted GMP Proposals, include all review comments
provided by the Owner regarding the GMP or GMP re-submittal.
·
For each submittal the Contractor shall provide a written
response below each original comment, stating the appropriate response to the
issue and include that documentation in this section. A re-submittal may not be forwarded to
Owner without responses to the previous review comments and included under this
TAB 10.
·
Any proposed deviations from the provisions or processes
described in the Agreement, contained in this Proposal, shall be approved in
writing by the Associate Director of Project Management and included herein.
ATTACHMENT 2
TO EXHIBIT D
PAYMENT AND
PERFORMANCE BONDS
(To be issued by the Owner
after the GMP has been accepted)
EXHIBIT E
SECURITY BOND
Surety
Bond No.
STATE
OF TEXAS §
KNOW
ALL MEN BY THESE PRESENTS:
COUNTY
OF §
That we,
______________________________________________________, as Principal, and , as Surety, are hereby held and firmly
bound unto The Board of Regents of The University of Texas System as Obligee in
the penal sum of Five Percent (5%) of
($ ), the Construction Cost Limitation
(CCL) for the Project defined hereinbelow, for payment whereof the said
Principal and Surety bind themselves, their heirs, executors, administrators,
and successors, jointly and severally, firmly by these presents.
Whereas the Principal has
executed a contract, with Obligee for the use and benefit of ,
,
dated , (the “Contract”), for ,
Project No. _______, (the “Project”).
NOW THEREFORE, the condition of
this obligation is such that, if the aforesaid Principal shall execute a
Guaranteed Maximum Price Proposal acceptable to all parties, the said Principal
will, within the time required by the Contract, give Performance and Payment
Bonds, as required by the Contract, to secure the performance of the terms and
conditions of the Contract, then this obligation to be void; otherwise the
Principal and surety will pay unto the Obligee the difference in money between
the amount of the Guaranteed Maximum Price Proposal of the said Principal and
the amount for which the Obligee legally contracts with another party to
perform the work if the latter amount be in excess of the former, but in no
event shall liability hereunder exceed the penal sum hereof.
IN WITNESS WHEREOF, the above
bounden parties have executed this instrument under their several seals this
___________ day of ____________________________ in the year ______, the name
and corporate seal of each corporate party being hereto affixed, and these
presents duly signed by its undersigned representative pursuant to authority of
its governing body.
(SEAL)
Principal
ATTEST:
By: By:
(Typed Name and Title) (Typed
Name and Title)
(SEAL)
Surety
ATTEST:
By: By:
(Typed Name and Title) (Typed
Name and Title)
EXHIBIT F
DB’S PERSONNEL AND MONTHLY SALARY RATES
OFPC Project No. & Name: _________ -
__________
[DB - Insert
Project No.] [DB
- Insert Project Name]
The following Monthly Salary Rate (MSR) shall identify the estimated
billable rate prior to execution of the Agreement, and shall be confirmed
during the Guaranteed Maximum Price Proposal phase for use throughout
Construction Phase Services on the OFPC Standard Schedule of Values Format for
all salaried General Conditions type personnel pursuant to the Agreement. The MSR shall include the employee’s estimated
monthly direct salary expense (including possible future salary increases),
plus any employer payroll taxes and/or fringe benefit contributions as
identified below. Any additional
employer contributions not identified below shall be included in the
Construction Phase Fee pursuant to Article 14 of the Agreement.
|
Employee |
Estimated
Employer’s Monthly Contributions |
Monthly Salary Rate |
||||||
|
Name and Title |
Estimated
Monthly Direct Salary
Expense |
Federal & State Unemployment (Approx. 1%) |
Social
Security & Medicare (7.65%) |
Worker’s
Compensation ($0 for ROCIP) |
Health &
Insurance |
Pension /
401(k) |
Vacation /
Holiday |
|
|
1. |
$ |
$ |
$ |
$ |
$ |
$ |
$ |
$ |
|
2. |
$ |
$ |
$ |
$ |
$ |
$ |
$ |
$ |
|
3. |
$ |
$ |
$ |
$ |
$ |
$ |
$ |
$ |
|
4. |
$ |
$ |
$ |
$ |
$ |
$ |
$ |
$ |
|
5. |
$ |
$ |
$ |
$ |
$ |
$ |
$ |
$ |
|
6. |
$ |
$ |
$ |
$ |
$ |
$ |
$ |
$ |
|
7. |
$ |
$ |
$ |
$ |
$ |
$ |
$ |
$ |
|
8. |
$ |
$ |
$ |
$ |
$ |
$ |
$ |
$ |
|
9. |
$ |
$ |
$ |
$ |
$ |
$ |
$ |
$ |
|
10. |
$ |
$ |
$ |
$ |
$ |
$ |
$ |
$ |
Design/Build
Contractor shall certify, to the best of his knowledge, that the above
referenced salary information is accurate.
CM
signature: ___________________________ (same individual
who signs agreement)
EXHIBIT G
CONSTRUCTABILITY
IMPLEMENTATION PROGRAM
Program Objectives:
·
Implement a rigorous constructability program
following The University of Texas System, Office of Facilities Planning and
Construction Constructability Manual.
·
Identify and document project cost and schedule
savings (targeted cost savings: 5% of
construction costs)
Proposed Steps:
·
Constructability
Implementation Meeting
- identification of all project team personnel
and all project stakeholders
-
clarification of project goals, objectives, and progress to date
-
team briefing on objectives, methods, and concepts of constructability
-
familiarization with implementation program
-
preliminary identification of constructability priorities and special
challenges or concerns
·
Constructability
Review of Schematic Design (SD) Documents; Comments Submitted to CM Team
- establishment of project constructability
procedures, including procedures for documenting savings
·
Meeting
to Review Schematic Design Constructability Comments
- assessment of applicability of 17 CII
constructability concepts
-
prioritization and time-phasing of constructability concepts
-
detailed discussions of front-end, high-priority concepts (identify
concerns, identify information needs, start to brainstorm alternative
approaches, conduct preliminary evaluation of approaches, identify needs for
further analysis, chart path forward, documentation of savings)
·
Design
Development Constructability Review Comments to CM Team
- follow-up discussions on front-end,
high-priority concepts
-
detailed discussions of front-end, high-priority concepts (identify
concerns, identify information needs, start to brainstorm alternative
approaches, conduct preliminary evaluation of approaches, identify needs for
further analysis, chart path forward, documentation of savings)
·
Constructability
Review Meeting
- review plans & specifications developed
to date, identifying sub-optimal or potentially problematic design elements
-
recommend alternative design suggestions for consideration and document
potential savings
-
conduct Value Engineering investigations into selected high-cost design
elements; consider life-cycle cost effects
·
30% CD
Constructability Review Comments to CM Team
- review plans & specifications developed
to date, identifying sub-optimal or potentially problematic design elements
-
recommend alternative design suggestions for consideration and document
potential savings
-
conduct Value Engineering investigations into selected high-cost design
elements
·
50% CD
Constructability Review Comments to CM Team
- review plans & specifications developed
to date, identifying sub-optimal or potentially problematic design elements
-
recommend alternative design suggestions for consideration and document
potential savings
-
conduct Value Engineering investigations into selected high-cost design
elements
·
95% CD
Constructability Review Comments to CM Team
·
Constructability
Discussions with CM Team
·
Document
On-site Constructability Lessons Learned
·
Close-out
Project Constructability Documentation
EXHIBIT H
POLICY ON
UTILIZATION
HISTORICALLY
UNDERUTILIZED BUSINESSES
Included
by reference.
Exhibit I
HUB Subcontracting Plan
for Pre-Construction Services
(Submit the HUB Plan, Good
Faith Effort and HUB Business Letter of Intent with the executed Agreement, for
the A/E consultants.
Submit the HUB Plan, Good
Faith Effort and HUB Business Letter of Intent within 30 days, after GMP
acceptance by Owner, for all remaining consultants and subcontractors.)
EXHIBIT J
ADDITIONAL
SERVICES PROPOSAL and
OTHER
COMPENSATION CHANGES TO THE PRE-CONSTRUCTION PHASE SERVICES
Requisition
Number
Project
Number:
Project
Name:
Campus:
Date:
To: PM
RCM
Mike Murphy
Richard Blount
Central File (original)
(Contractor)
Gentlemen:
Please refer to the
Agreement dated __________________, 20 between _____________________________
(“Owner”) and the undersigned (“Design/Build Contractor”) as amended to the
date hereof (such agreement as so modified and amended being hereafter called
the “Agreement”) pursuant to which Design/Build Contractor is to perform
certain services. The terms which are defined in the Agreement shall have the
same meanings when used in this letter.
Owner has requested the performance of the services described below
which Design/Build Contractor deems to be Additional Services.
(Description of Services.)
Design/Build Contractor agrees to perform the Additional Services
described above subject to and in accordance with the terms and provisions of
the Agreement for a fee which will be determined in accordance with the
Agreement but which will not exceed ________________________ Dollars
($_______________) and for reimbursement of expenses in accordance with the
Agreement incurred solely in connection with the performance of such Additional
Services, but which reimbursement for expenses will not exceed _____________________
Dollars ($___________).
Design/Build Contractor will perform the services in accordance with
any schedule attached hereto (attach schedule if applicable), but in any event
not later than _____________ (_______) days after Design/Build Contractor is
authorized to proceed.
If the foregoing is acceptable to
you, please so execute by signing the enclosed copy of this letter at the space
provided for this purpose and by inserting the date upon which Design/Build
Contractor is authorized to commence performance of the Additional Services
described in Paragraph 1 above.
Sincerely yours,
DESIGN/BUILD CONTRACTOR
By:
Name:
Title:
Accepted this ______________ day of
______________________ , 20 _. Design/Build Contractor is authorized to
commence performance of the Additional Services on _________, 20 _
Office of Facilities Planning and Construction
The
University of Texas System
By:
Name:
Title:
PRE-CONSTRUCTION PHASE
SERVICES FEE
ORIGINAL
CONTRACT FEE AMOUNT $
PREVIOUS
ADDITIONS $
PREVIOUS
DEDUCTIONS $
NET
BALANCE CONTRACT FEE AMOUNT $
THIS (Addition)
(Deduction): $
ADJUSTED
CONTRACT AMOUNT $
xc: Contractor Design/Build Contractor
Accounting
Project Manager central
file
Resident Design/Build Contractor
Contract Manager
Exhibit K
PROJECT ARCHITECT’S
Personnel, TITLE AND DSE RATES
EXHIBIT L
HAZARDOUS MATERIAL ABATEMENT
GENERAL SCOPE OF WORK
Review and Assessment
Review
previous survey results and conduct an inspection of the facilities in order to
collect the required amount of samples of suspect material. Determine the extent, condition, and
approximate quantities of lead and asbestos containing materials.
Technical Specifications
Develop
the technical plans and specifications for the abatement phases of the project
for Owner’s review and approval. Meet
with appropriate personnel to discuss the plans and specifications along with
the abatement process.
Provide
a final copy of approved technical plans and specifications.
Abatement Monitoring
Collect
and analyze background air, dust and soil samples prior to the commencement of
abatement work.
For
abatement work which requires the use of enclosures:
Pre-abatement
inspection to approve enclosure and authorize abatement to begin.
Conduct
a full time or periodic inspection as directed by Certified Industrial
Hygienist (CIH).
Collect
and analyze area samples (inside and outside) enclosure as directed by CIH.
Conduct
a clearance inspection and collect and analyze air, dust and soil samples at
conclusion of abatement work to “release” contractor from that area.
Hazardous Material Abatement
The
Design/Build
Contractor shall, as additional services, provide Hazardous Material Abatement,
including all related services.
HAZARDOUS MATERIAL ABATEMENT CONSULTANTS
The following Hazardous
Material Abatement Consultants are acceptable to U. T. System:
ATEC Environmental
Consultants
140 Helmer Road, Suite 675
San Antonio, Texas 78216
Phone (210) 496-3434
Contact Person: Earl McIntoch, Jr.
Clean Environments, Inc.
1106 Clayton Lane, Suite
523W
Austin Texas 78723
Phone (512) 323-5700
Contact Person: Mark Pace
Maxim Technologies
4150 B Friedrich Lane
Austin, Texas 78760
Phone (512) 447-9081
Contact Person: Rick Orr
Natural & Applied
Sciences
9171 Capital of Texas Hwy.
N., Suite H-210
Austin, Texas 78759
Phone (512) 338-5300
Contact Person: Leonard Gilbert
Raba-Kistner Consultants,
Inc.
12821 W. Golden Lane
San Antonio, Texas
78269-0287
Phone (210) 699-9090
Contact Person: Daryl Markland
RW Environmental Services,
Inc.
P.O. Box 701144
San Antonio, Texas
78220-1144
Phone (210) 494-7445
Contact Person: Robert Whiting
REVISIONS
|
Date |
Paragraph Revised |
|
Sept. 2003 |
Document
Issued |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
No comments:
Post a Comment