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HomeMy WebLinkAboutC2006-495 - 11/14/2006 - Approved DESIGN AND CONSTRUCTION AGREEMENT This DESIGN AND CONSTRUCTION AGREEMENT is between CITY OF CORPUS CHRISTI (City) and CORPUS CHRISTI BASEBALL CLUB, L.LP. (Construction Manager). The Parties agree that the Construction Manager will provide for the design and construction of the Whataburger Right Field Access Ramp (the "Project"). NOW, THEREFORE, In consideration of the mutual promises, covenants and agreements stated herein, and for other good and valuable consideration the sufficiency of which is hereby acknowledged, City and Construction Manager agree as follows ARTICLE 1 CONSTRUCTION MANAGER'S DUTIES (1) Construction Manager Will retain the services of a firm(s) or individual(s) professionally and fully qualified to act as the design professional registered or licensed to practice engineering by the State of Texas; (2 The Construction Manager will select and contract with a qualified general contractor for the Project; (3) Construction Manager will ensure that all necessary licenses, permits, inspections, or other authorizations necessary to construct the project are obtained by the contractor and its subcontractors; J ~ Construction Manager has or will secure the expertise, experience, and knowledge as well as the necessary plant. personnel and financial capability to perform the Design Services and the Work in accordance with the terms of the Contract ( i jAto Prior to the award of a construction contract the Construction Manager will ensure its general contractor has visited and inspected the Project site and the local conditions under which the Project is to be designed, constructed and operated, and Construction Manager has performed such tests, if any, as are necessary to determine the conditions under which the Work will be performed, and Construction Manager accepts the conditions of the Work site and has taken those conditions into account in entering into the Contract; (L ~) Construction Manager will pay all fees and expenses due and payable to the consultants, design professionals, and general contractor ~, Construction Manager assumes full responsibility to City for the improper acts and omissions of its Subcontractors or others employed or retained by Construction Manager in connection with the Project. ARTICLE 2 REGULATORY GUIDELINES, REQUIREMENTS AND STANDARDS (A) GenerallY Construction Manager shall perform or cause to be performed all Design Services described in, contemplated by, inferable from, or necessary or desirable to achieve the objectives stated in the Design Scope Specification and the Contract, including all Design Services necessary for the Project to be properly constructed by the Construction Manager's general contractor and used, operated and maintained by the City of Corpus Christi in accordance with all applicable guidelines, requirements and standards. "Design Services" means any and all architectural, engineering and design services required to be performed by Construction Manager pursuant to the Contract and all labor, materials. supervision equipment, computers, documents, and all other things necessary for the performance of such services. (B) City's Review Of Desion Services: Construction Manager shall submit all documents produced as part of the Design Services to City's Representative for review and approval in accordance with the terms of the Contract. However, any such review or approval by City or City's Representative shall not relieve Construction Manager of or otherwise diminish its obligations under the Contract for the Project to be constructed in accordance with prevailing professional standards 2006-495 1 Jl14/06 M2006-384 ion: Construction Manager shall prepare or cause to be prepared, as ormation for the construction of the Project. C< Basehall ('Iuh lp\CMDesignBulid2.doc Page 1 of 13 (0) Retention Of Geotechnical Consultants: In preparing the Design Documents, Construction Manager shall retain an experienced, qualified geotechnical consultant to evaluate all geotechnical considerations relating to the design and construction of the Project Construction Manager shall be responsible for designing the Project in accordance with the analyses and recommendations of its geotechnical consultant Copies of any geotechnical reports or recommendations will be provided to the City's representative. (E) Qualitv Of Desion Services: Construction Manager shall be responsible for the professional quality, completeness, accuracy, and coordination of Design Documents. Construction Manager shall provide Design Services that will result in an operationally cost-efficient and economical facility that meets all environmental and regulatory requirements as of the date hereof, and uses the most appropriate available technology. Construction Manager shall provide for all testing and inspections required by sound professional architectural and engineering practices and by governmental authorities having jurisdiction over the Project. Copies of testing and inspection reports will be provided to the City's representative (F) Comoliance With Laws And Reaulatorv Reauirements: In providing Design Services, Construction Manager shali comply with the lawful requirements of all federal, state, and local authorities having lawful jurisdiction over the Project Including the Texas Department cf Licensing and Regulation. Construction Manager shall design the Project to meet all applicable requirements of building control laws and regulations in relation to the design, construction, occupation, and operation of the Project, including, without limitation, environmental standards, fire and safety regulations and requirements and compliance with all other applicable standards and codes. (G) Dutv To Correct Errors. Construction Manager shall cause, without compensation, immediate correction of any errors omissions or deficiencies in its Design Services and Design Documents. (H) Schedule Of Desian Services: Construction Manager shall submit for the City's Representative approval the Design Schedule for the performance of Construction Manager's Design Services which shall include allowance for reasonable time required for the City'S Representative review of submissions and for approvals of authorities having jurisdiction over the Project ARTICLE 3 DETAILED DESIGN (A) The Detailed Desion: The Detailed Design shall include all Design Documents which shall describe with specificity all elements, details, components, materials, and other information necessary for the complete construction of the Project and the rendenng of the Project fully operational for its intended purposes, including satisfaction of all testing, permitting, qualifications, certifications, validations, and obtaining regulatory approvals by all applicable regulatory authorities required to render the Project and all its components operational and functionally and legally usable for their intended purpose The Project will be registered with the Texas Department of Licensing and Regulation for Architectural Barriers (B) Desian Documents: The Design Documents including all geotechnical reports and engineering design reports will be delivered to the City'S Representative for review and approval prior to commencing construction. Fmal DeSign Documents will be prepared under the direct supervision of and sealed by engineer(s) registered to practice 'n the State of Texas ARTICLE 4 CONSTRUCTION SERVICES (A) General Intent: Construction Manager will cause all Work necessary to construct the Project in accordance with the Contract and to render the Project and all its components operational and functionally and legally usable for their intended purpose (B) Work Defined: The term 'Work" shall mean whatever is done by or required of Construction Manager to perform and complete its duties relating to the construction of the Project under the Contract, including, without limitation, the following Page 2 of 13 H \HOME\KEVIN S\GEN\Baseba II\Rig htFie IdRam p\CM Des Ig" Bu ild2. doc Construction of the whole and all parts of the Project in full and strict conformity with the Contract; 2) The provision and furnishing, and prompt payment therefor, of all labor, supervision, services, materials, supplies, equipment, fixtures, appliances, facilities, tools, transportation, storage, power, fuel, heat, light cooling, other utilities and things required for the construction of the Project; 3; T he procurement and furnishing of all necessary building permits and other permits required for the construction of the Project 4 i The creation and submission to City's Representative of detailed as-built drawings depicting all as-built construction, 5, The furnishing of any required surety bonds and insurance as required by the Contract; '6\ The furnishing of all equipment and product warranties, manuals, test results and user guides required by the Contract or otherwise reasonably available to Construction Manager; ARTICLE 5 TIME FOR CONSTRUCTION: THE CONTRACT TIME (A) Time For Completion: Construction Manager shall commence the Work on the Commencement Date, and the Work shall be carried out regularly and without interruption Construction Manager shall complete the Work prior to April 12 . 2007 ARTICLE 6 ADDITIONAL DUTIES AND RESPONSIBILITIES OF CONSTRUCTION MANAGER (A) Construction ManaQer To Perform All Work ReQuired By The Contract: The intent of the Contract is to require complete. correct and timely execution of the design and the Work, Any and all Work that may be required, reasonably implied or reasonably Inferred by the Contract, or any part of it, as necessary to produce the intended result shall be provided by Construction Manager in accordance with Article 10 of this Agreement. (B) Warranty Of WorkmanshiP And Materials: Construction Manager warrants and guarantees to City's Representative that all labor furnished to progress the Work under the Contract will be competent to perform the tasks undertaken and is the best quality obtainable, that the product of such labor will yield only first-class results in strict compliance with the Contract, that materials and equipment furnished will be of high quality and new unless otherwise permitted by the Contract, and that the Work will be of high quality, free from faults and defects and in strict conformance with the Contract. Any and all Work not strictly conforming to these requirements shall be considered defective and shall constitute a breach of Construction Manager's warranty, (C) Construction ManaQer's Schedule Of Construction: Construction Manager will cause, within fifteen (15) days after the Commencement Date, to be submitted to City's Representative, for its information, and comply with, Construction Manager's Schedule of Construction for completing the Work by the Scheduled Completion Date. The Schedule of Construction shall reflect the performance of all Work on week days and non-holidays. The Schedule of Construction shall be a detailed critical path (CPM) schedule in a form acceptable to City's Representative. The Schedule of Construction shall be revised at least monthly and shall be revised to reflect conditions encountered from time to time and shall be related to the entire Project Each such revision shall be furnished to City's Representative. Strict compliance with the requirements of this Paragraph shall be a condition precedent for payment to Construction Manager and failure to strictly comply with said requirements shall constitute a material breach of the Contract (G) Record COpy Of Contract Documents: Construction Manager shall continuously maintain at the site, a copy the plans, specifications, change orders, shop drawings, product data, samples, and other submittals. Upon Final Completion of the Work, or upon City's Representative's request, all of the documents described in this Paragraph shall be finally updated and delivered to City of Corpus Christi and shall become the property of City of Corpus ChnstL Page 3 of 13 '-< . \HOME\KEVINS\GEN\BasebaII\RightF ie IdRamp\CMDeslg n Build2, doc (H) Review And Aporoval Of Submittals: Construction Manager will cause the review, study, and approval or other necessary action upon all shop drawings, product data, samples, and other submittals to ensure that the Project will be constructed in a timely fashion In strict compliance with the Contract. (I) Procurement And Review Of Warranties. Construction Manager will cause to be procured from all Subcontractors and Suppliers and shall transmit to City's Representative, all warranties required by the Contract. Construction Manager shall review all such warranties and shall certify to City's Representative that the warranties are in strict compliance with the requirements of the Contract (K) As-Built Drawinas: Construction Manager will cause to be prepared and provided to City's Representative a complete set of all as-built drawings which shall be complete and, except as specifically noted, shall reflect performance of the Work in strict compliance with the requirements of the Contract. (L) Compliance With Labor Laws: Construction Manager will ensure all labor responsibility for all personnel assigned to or contracted for the performance of the Work and agrees to strictly comply with all its obligations as employer with respect to said personnel under all applicable labor laws. (M) Testina. Inspections. And APprovals: Construction Manager will cause procurement of all tests and inspections required by sound professional practices and by governmental authorities having jurisdiction over the Project, and shall assume the cost of such tests and testing. Construction Manager shall submit certified results of such tests to City's Representative If the laws, ordinances, rules, regulations or orders of any public authority having jurisdiction require any Work to be specifically inspected, tested, or approved, Construction Manager will ensure that payment for all costs in connection therewith and furnish to City's Representative the required certificates of inspection. testing or approval N) City's Representative's Reaulations And Applicable Laws: Construction Manager shall, during the course of the Work. comply with any regulations or guidelines prescribed by City's Representative. Construction Manager warrants that it will comply with all public laws, ordinances, rules and regulations applicable to the services to be performed under the Contract, including without limitation, those relating to the terms and conditions of the employment of any person by Construction Manager in connection with the Work to be performed under the Contract (0) Compliance With Construction Reaulations: Construction Manager shall perform the Work in accordance With all construction codes, laws, ordinances or regulations applicable to the design and execution of the Work. Any fine or penalty which may be imposed as consequence of any violation of this provision shall be paid by Construction Manager, and Construction Manager shall indemnify and hold City, City's Representative harmless from all loss, damages, and expense, including attorney's fees, resulting from any such violation or alleged violation. (P) Permits. Licenses And Notices: The Construction Manager will ensure all construction and building permits, licenses and authorizations necessary for the construction of the Project are secured and paid for by its contractor or subcontractors Construction Manager shall notify City's Representative when it has received said permits, licenses and authorizations and upon receipt shall supply City's Representative with copies of same. The onginals of said permits, licenses and authorizations shall be delivered to City's Representative upon completion of the Work, and receipt of such documents by City's Representative shall be a condition precedent to final payment. Construction Manager shall also give and maintain any and all notices required by applicable laws pertaining to the construction of the Work. (Q) Conditions To Site Access: While on City of Corpus Christi's property, all Construction Manager's employees and Subcontractors shall confine themselves to areas designated by Construction Manager. (R) Site Safety And Security: Construction Manager shall take all reasonable steps and legally required measures at the site to comply with applicable safety regulations and standards and to adequately protect the Work, stored materials. and temporary structures located on the premises, and to prevent unauthorized persons from entering upon the site. Construction Manager shall at all times safeguard City's property and employees from injury or loss in connection with the performance of the Contract. Construction Manager shall at all times safeguard and protect its own partially or completely finished Work and that of the adjacent property and all adjacent work from Page 4 of 13 H HOME\KEVINS\GEN\Baseball\RlghtFieldRamp\CMDesignBuild2.doc damage. Construction Manager shall protect City's equipment, apparatus, machinery, and other property and all adjacent work with boarding and other safeguards so as to keep the premises free from dampness, dirt, dust, or other damage and shall remove all such temporary protection upon completion of the Work. (5) Repair Of Collateral Damaaes: Unless otherwise instructed by City's Representative, Construction Manager shall repair and return to original condition all buildings, streets, curbs, sidewalks, utilities or other facilities affected by Construction Manager's performance of the Work, all without additional cost to City. (T) Cleanina The Site: Construction Manager shall keep the site reasonably clean during performance of the Work Upon Final Completion of the Work, Construction Manager shall thoroughly clean the site and the Project and remove all waste, debris, trash and excess materials or equipment, together with Construction Manager's property therefrom (U) City'S Representative's Access To Work: At all times relevant to the Contract, Construction Manager shall provide access to the Work to City's Representative and its designees without formality or other procedure. ARTICLE 7 FINAL COMPLETION (A) Determination Of Comoletion: When Construction Manager believes that the Work is complete, Construction Manager shall notify City's Representative in writing and shall submit to City's Representative a list of items remaining to be completed or corrected. City's Representative will perform an inspection to determine if there are any outstanding items to complete. (B) Determination Of Final ComDletion: When Construction Manager believes that all of the Work is finally complete, and Construction Manager is ready for a final inspection, Construction Manager shall so notify City's Representative in writing. City's Representative will then make final inspection of the Work and, if the Work is complete in strict accordance with the Contract, and the Contract has been fully performed, then City's Representative will issue a project acceptance memo. ARTICLE 8 CITY'S DUTIES, OBLIGATIONS, AND RESPONSIBILITIES City shall undertake to perform the following: (A} Provide Praiset Information City's Representative shall provide Construction Manager with information regarding City's Representative's requirements for the Project including any desired or required design or construction schedule. (B) Review Of Documents: City's Representative shall review any documents submitted by Construction Manager requiring City's Representative's decision, and shall render any required decisions pertaining thereto. (C) Provide Notice Of Defects: In the event City's Representative knows of any material fault or defect in the Work, nonconformance with the Contract, or of any errors, omissions or inconsistencies in the Design Documents, then City's Representative shall give prompt notice thereof in writing to Construction Manager. (D) Access To The Site And The Work City's Representative shall provide Construction Manager access to the site and to the Work, and shall provide Construction Manager with such information, existing and reasonably available. necessary to Construction Manager's performance of the Contract as Construction Manager may request. (E) Coooeration To Secure Permits, Licenses, Approvals. And Authorizations: City's Representative shall cooperate with Construction Manager in securing any necessary licenses, permits, approvals or other necessary authorizations for the design, construction and certification of the Project. (F) Timely Performance City's Representative shall perform the duties set forth in a reasonably expeditious fashion so as to permit the orderly and timely progress of Construction Manager's Design Services and of the Work. Page 5 of 13 H' \HOME\K EVI NSIGE N\Baseba II\RlghtField RamplCMDesig n BUlld2. doc (G) City'S Representative's Reviews. Inspections. Anf Aporovals Not A Waiver: City's Representative's review, inspection or approval of any Work, Design Documents, or Submittals by Construction Manager shall be solely for the purpose of determining whether suer Work and such documents are generally consistent with City's Representative's construction program and requirements. No review, inspection, or approval by City's Representative of such Work or documents shall relieve Construction Manager of its responsibility for the performance of its obligations under the Contract or the accuracy, adequacy, fitness, suitability, or coordination of its Design Services or the Work. Approval by any governmental or other regulatory agency or other governing body of any Work. Design Document or Contract Documents shall not relieve Construction Manager of responsibility for the strict performance of its obligations under the Contract (H) Delay Or Forbearance Not Waiver: City.s agreement not to exercise, or its delay or failure to exercise, any right under the Contract or to require strict compliance with any obligation of Construction Manager under the Contract shall not be a waiver of the right to exercise such right or to insist on such compliance at any other time or on any other occasion. (I) Documents Reauested By Construction Manaaer: City's Representative shall furnish to Construction Manager, prior to the execution of this Agreement, any and all written and tangible material knowingly in its possession concerning conditions below ground at the site of the Project. Such written and tangible material is furnished to Construction Manager only in order to make complete disclosure of such material and for no other purpose. By furnishing such material, City's Representative does not represent, warrant, or guarantee its accuracy or completeness either in whole or !n part, and shall have no liability therefor. If Construction Manager requests in writing, City's Representative shall also furnish surveys, legal limitations, and utility locations (if known), and a legal description of the Project site (J) Approvals And Easements: City's Representative shall obtain all easements required for construction, and shall pay for necessary assessments and charges required for use and occupancy of the Work. Construction Manager shall render such assistance as City's Representative may request in obtaining such easements, certificates of occupancy. and the like. (K) Rlcht To StoP Work. In the event Construction Manager fails or refuses to perform the Work in strict accordance with the Contract, or is otherwise in breach of this Contract in any way, City's Representative may, at its option instruct Construction Manager to cease and desist from performing further Work, or any part thereof. Upon receipt of such Instruction from City's Representative in writing, Construction Manager shall immediately cease and desist as instructed by City's Representative and shall not proceed further until the cause for City's Representative's instructions has been corrected, no longer eXists, or City's Representative instructs that the Work may resume. (L) City'S Representative's Richt To Perform Work: In the event City's Representative issues such instructions to stop Work, and in the further event that Construction Manager fails and refuses within seven (7) days of receipt of same to provide adequate assurance to City's Representative that the cause of such instructions will be eliminated or corrected, then City's Representative shall have the right to carry out the Work with its own forces, or with the forces of other contractors, and Construction Manager shall be fully responsible for the costs incurred in performing such Work. The rights set forth in Paragraph 8(K) and this Paragraph 8(L) are in addition to, and without prejudice to. any other rights or remedies City may have against Construction Manager. including the rights to terminate or withhold payment as provided hereir (M) Sales Tax Certificate. The City's Representative will deliver or cause to be delivered to the Construction Manager a sales tax exemption forrr for the project. (N) Citys Representative. "City s Representative" means the individual designated by the City Manager to act on City's behalf in the administration of the Contract ARTICLE 9 PERSONNEL, SUBCONTRACTORS AND SUPPLIERS (A) Subcontractor Defined: A 'Subcontractor" means an entity which has a direct contract with Construction Manager to perform a portion of the Work or the Design Services. For purposes of the Contract, Subcontractors shall also Include those furnishing specially fabricated equipment and materials for the Project. Page 6 of 13 H. \HOME\KEVI NS\GE N\Baseba II\Rlg htFieldRam p\CMDesign BUlld2. doc (8) SuoDlier Defined A "Supplier" means an entity providing only equipment or materials for the performance of the Wor~ (C) Oblections To Subcontractors: Upon execution of this Agreement, and at such later times as may be applicable, Construction Manager shall furnish City's Representative, in writing, the names of persons or entities proposed by Construction Manager to act as Subcontractors on the Project. Construction Manager shall provide such information regarding such proposed Subcontractors as City's Representative deems necessary. City's Representative shall promptly reply to Construction Manager, in writing, stating any objections City's Representative may have to such proposed Subcontractors. Construction Manager shall not enter into a subcontract with an intended Subcontractor with reference to whom City's Representative objects. Any consent or failure to reject by City's Representative shall In no way relieve Construction Manager of any of its duties or warranties under the Contract (0) Terms Of Subcontracts: All subcontracts and purchase orders with Subcontractors shall afford Construction Manager rights against the Subcontractor which correspond to those rights afforded to City against Construction Manager herein, including those rights of Contract suspension, termination, and stop Work orders as set forth herein. It is expressly agreed that no relationship of agency, employment, contract, obligation or otherwise shall be created between City and any Subcontractor of Construction Manager and a provision to this effect shall be inserted Into all agreements between Construction Manager and its Subcontractors. (E) Construction Manaaer Resoonsible For Acts Of Its Subcontractors: Should Construction Manager subcontract all or any part of the Work, such subcontracting of the Work shall not relieve Construction Manager from any liability or obligation under the Contract or under any applicable policy, law or regulation, and Construction Manager shall be responsible for all and any acts, defaults, omissions or negligence of its Subcontractors, Suppliers and consultants (F) Personnel In accordance with Article 2 above, Construction Manager shall employ and assign only qualified and competent personnel to perform any service or task concerning the Project. Construction Manager shall designate one such person as the Project Manager. Absent written instruction from Construction Manager to the contrary, the Project Manager shall be deemed to be Construction Manager's authorized representative and shall be authorized to receive and accept any and all communications from City's Representative. Key supervisory personnel names and function assigned by Construction Manager to this Project will be supplied to the City's R eoresentative EVidence of the named personnel's competence, such as a resume, shall be provided to City's Representative prior to said personnel beginning performance of their function. So long as the individuals named above remain actively employed or retained by Construction Manager, or any related entity or affiliate thereof, they shall perform the functions Indicated next to their names unless City's Representative agrees to the contrary in writing or unless City's Representative requests removal of any such individual from the Project. In the event City's Representative requests the removal of any of the mdividuals named above, Construction Manager shall immediately comply and shall immediately replace such individual with a qualified substitute to whom City's Representative makes no objection In the event one or more individuals not listed above subsequently assumes one or more of those functions listed above, Construction Manager shall be bound by the provisions of this Paragraph 15(F) as though such indiViduals had been listed above (G) Removal Of Subcontractors And Personnel: If, at any time during the course of the Project, City's Representative reasonably determines that the performance of any Subcontractor or any member of Construction Manager's staff working on the Project is unsatisfactory, City's Representative may require Construction Manager to remove such Subcontractor or staff member from the Project immediately and replace the staff member at no cost or penalty to City for delays or inefficiencies the change may cause. ARTICLE 10 UNCOVERING AND CORRECTING WORK (A) Construction Manaaer Not To Cover Work Contrarv To Reauirements: If any of the Work is covered, concealed or obscured contrary to the written request of City's Representative, or contrary to any provision of the H 'HOME\KEVINS\GEN\BasebaIl\RlghtFieldRamp\CMDesignBu IId2 .doc Page 7 of 13 Contract. said Work shall, If required by City's Representative, be uncovered for inspection and shall be properly replaced at Construction Manager's expense without change in the Contract Time. (B) City's Representative's Richt To Order Uncoverina Of Anv Work: If any of the Work is covered, concealed or obscured in a manner not inconsistent with Paragraph 18(A) above, it shall, if required by City's Representative, be uncovered for inspection (C) Dutv To Correct Reiected Work Construction Manager shall immediately proceed to correct Work rejected by City's Representative as defective or failing to conform to the Contract. Construction Manager shall pay all costs and expenses associated with correcting such rejected Work, including any additional testing and inspections made necessary thereby (D) DUN To Correct Defective Work Discovered After Completion: In addition to its warranty obligations set forth elsewhere herein, Construction Manager shall be specifically obligated to correct any and all defective or nonconforming Work for a period of twelve (12) months following Final Completion upon written direction from City's Representative (E) No Penod Of Limitation Established Nothing shall establish any period of limitation with respect to other obligations which Construction Manager has under the Contract. Establishment of the one-year time period above relates only to the duty to Construction Manager to specifically correct the Work (F) City'S Ootion To Acceot Defective Work City's Representative may, but shall in no event be required to, choose to accept defective or nonconforming Work ARTICLE 11 OWNERSHIP OF DOCUMENTS Documents City of Comus Christi Propertv: The Design Documents and the Contract Documents, including but not limited to, the drawings, specifications and other documents or things prepared by Construction Manager for the Project, shall immediately become and be the sole property of City of Corpus Christi. Any documents furnished by City's Representative shall become the property of the City of Corpus Christi. Construction Manager may be permitted to retain copies of the Design Documents and Contract Documents and any documents furnished by City for its records; provided, however, that in no event shall Construction Manager use, or permit to be used, any portion of all of such documents on other projects without the City of Corpus Christ's prior written authorization. ARTICLE 12 INDEMNITY (A) From Personal Iniury Or Damaae To Tanaible ProDertv: Construction Manager shall indemnify and hold City of Corpus Christi, its officers and employees, harmless from any and all claims, liability, damages, loss, cost and expense of every type whatsoever including, without limitation, attorneys' fees and expenses, in connection with Construction Manager's performance of this Contract, provided that such claims, liability, damage, loss, cost or expense is due to sickness, personal injury, disease or death, or to loss or destruction of tangible property (other than the Work itself), including loss of use resulting therefrom, to the extent caused by Construction Manager or anyone for whose acts Construction Manager may be liable, regardless of whether such liability, claim, damage, loss, cost or expense is caused in part by City of Corpus Chri8ti, its officers or employees. (B) From Violations Of laws. Environmental Reauirements. Performance Guidelines. And Licensina Reauirementll: Construction Manager shall indemnify and hold harmless City of Corpus Christi and their affiliates, officers, directors, and employees from and against all claims, liabilities, damages, losses, costs, expenses (including reasonable attorney's fees and expenses, and fees and expenses of experts) for bodily injury, including death, or damage to or loss of property, or any other type or form of loss occurring or sustained or resulting from: H IHOME\KEVI NS\GE N\Baseball\RlghtFleldR amp\CMDesign Build2.doc Page 8 of 13 (1' Any violation by Construction Manager, its Subcontractors, representatives, employees, and agents of any municipal, state or federal laws, rules, or regulations applicable to the performance of its obligations under the Contract; (2) Environmental violations or contamination from hazardous substances, hazardous wastes and emissions or other substances or chemicals regulated by any applicable environmental laws or regulations and resulting from any willful misconduct, negligent act or omission, or legal violation by Construction Manager, its Subcontractors, Suppliers, representatives, employees, or agents; (3) The failure of any of Construction Manager's employees, agents, representatives, Suppliers, or Subcontractors to obtain and maintain the required skills, licenses, certificates and permits mandated by applicable federal, state or local governing authorities with jurisdiction over construction, fabrication, environmental, health and safety matters or the Project. (C) Hazardous Materials. In the event Construction Manager discovers hazardous or contaminated materials, including but not limited to asbestos, PCBs, petroleum, hazardous waste, or radioactive material, Construction Manager sha11 stop all Work in connection with such hazardous condition and in any area affected thereby, and notify City's Representative of the discovery of said condition. Construction Manager shall strictly comply with all applicable laws, regulations, rules or other promulgations by governing bodies, agencies, authorities or organizations havmg jurisdiction over the Project or the discovery of said hazardous or contaminated material. Construction Manager shall secure the Work site to prevent access by unauthorized personnel. If Construction Manager fails to comply with this Paragraph 21 (C) or contaminated, hazardous or suspected contaminated or hazardous material is transported (either on or off site) without notice to City's Representative, such materials shall become the property of Construction Manager and Construction Manager shall be solely responsible for all costs and fines assOCiated therewith ARTICLE 13 INSURANCE (A) Reauired Coveraae And Limits: Construction Manager shall have and maintain the insurance described in Exhibit "A" attached hereto and incorporated herein by reference during the entire performance of this Contract. Such Insurance shall cover the claims and provide the limits of coverage set forth in Exhibit "A". (B) Proof Of Insurance: Construction Manager shall provide City's Representative with Certificates of Insurance naming the City of Corpus Christi as an additional named insured, or certified copies of the policies required by City of Corpus Christi, and certifying that all insurance is in force within ten (10) days after the Contract becomes effective or on the date construction is commenced, whichever occurs first. The certificates of insurance evidencing the coverages required by the Contract shall contain an endorsement providing thirty (30) days notice to City of Corpus Christi prior to any cancellation or alteration of said coverage. Said coverage shall be written by an insurer acceptable to City of Corpus Christi and shall be in a form reasonably acceptable to City and City of Corpus Christ, (C) Coveraae The Construction Manager Will cause their contractor and subcontractors to provide proof of insurance with the coverage set forth in Exhibit "A" in accordance with the requirements listed. ARTICLE 14 SURETY BONDS (A) Performance Bond And Payment Bond: Construction Manager shall cause their contractor to furnish separate performance and payment bonds to City of Corpus Christi. Each bond shall set forth a penal sum in an amount not less than the Contract Price. Each bond furnished by Construction Manager shall incorporate by reference the terms of the Contract as fully as though they were set forth verbatim in such bonds. In the event the Contract Price IS adjusted by Change Order executed by Construction Manager, the penal sum of both the performance bond and the payment bond shall be deemed increased by like amount. The performance and payment bonds furnished by Construction Manager shall be in form suitable to the City of Corpus Christi and shall be executed by a surety, or sureties. reasonably acceptable to City of Corpus Christi. H \rlOME\KEVI NS\G E N\Baseball\Rlg htField Ramp \CMDesig n Bu Ild2. doc Page 9 of 13 ARTICLE 15 MISCELLANEOUS PROVISIONS (A) Govermnq Law' The Contract shall be governed by the laws of the State of Texas where the Project is situated (8) Successors And Assians The City of Corpus Christi and Construction Manager bind themselves, their successors. assigns, executors, administrators and other legal representatives to the other party hereto and to successors, assigns, executors, administrators and other legal representatives of such other party in respect to all terms and conditions of this Contract. (C) Non-Assiqnment: Construction Manager shall not assign the Contract, or any part of the Contract, without prior written consent of City's Representative (D) Notices Any notice required to be given herein shall be deemed to have been given to the other party if (1) given by first class mail, registered or express mail, courier service, or hand delivery; or (2) by telex or fax, provided that such notice is also confirmed by first class mail. registered or express mail, courier service, or hand delivery to J!!~ following addresses-.: _______ To City: City of Corpus Christl cia Engineering Services City of Corpus Christl Corpus Christi, TX 78469-9277 Attn: Kevin Stowers "-_._,._-----_._.__._-~_._._-~ "I To Construction Manager: i Corpus Christi Baseball Club, L.L.P. I 734 Port Avenue I Corpus Christi, TX 78460 I Attn: J J. Gottsche I -~--- All notices shall be effective upon receipt (E) Severabilitv: In the event that any portion or any portions of this Contract are held to be unenforceable by a court of competent jurisdiction, then the remainder of this Contract shall be enforced as though such portions had not been included unless to do so would cause this Contract to fail of its essential purposes. Executed by the parties' duly authOrized representatives as indicated by their signatures below. CITY City of Corpus Christi ~. -<..-- By: (Signalv ' CONSTRUCTION MANAGER Corpus Christi Baseball Club, L.L.P. By ~,.Q (Sjg~ APPROVED AS TO FORM: ie:t~~~ty1:~~~~ ' ! C D~e ~ ~ M 1 )JO/(/ -1lo~.. AU! !iV"IL.... IT ~IL ...JLl.1.<;Lt.Q1R-...- S[(;fiA~l;fp ATTEST: /?JhM"~6 Armando Chapa. City Secretary ~.. H- \HOME\KEVINS\GEN\BasebaII\RlghtFleldRamp\CMDesignBuild2.doc Page 10 of 13 Exhibit A Mandatory Requirements (Revised May, 2006) INSURANCE REQUIREMENTS CONSTRUCTION MANAGER LIABILITY INSURANCE A The Construction Manager shall not allow their contractor to commence work under this Agreement until it has obtained all insurance required herein from their contractor and such insurance has been approved by the City. Nor shall the Construction Manager allow any subconsultant to commence work until all similar insurance required of the subconsultant has been so obtained. B. The Construction Manager shall furnish two (2) copies of certificates, with the City of Corpus Christi named as an additional insured, showing the following . . t bl t th C' 3D-Day No certificate minimum coverage In an Insurance company accepl a e 0 e Ity. TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE -..-,...-- tice of Cancellation required on all Bodily Injury and Property Damage s al General Liability including $2,000,000 COMBINED SINGLE LIMIT ommercial Form remises - Operations plosion and Collapse Hazard nderground Hazard roductsl Completed Operations Hazard ontractuallnsurance road Form Property Damage dependent Consultants ersonal Injury ILE L1ABILlTY--OWNED NON-OWNED $1,000,000 COMBINED SINGLE LIMIT ED WHICH COMPLIES WITH THE TEXAS WORKERS= S' COMPENSATION COMPENSATION ACT AND PARAGRAPH II OF THIS EXHIBIT RS' LIABILITY $100,000 LIABILITY $1,000,000 COMBINED SINGLE LIMIT IONAL POLLUTION L1ABILlTYI $2,000,000 COMBINED SINGLE LIMIT MENTAL IMPAIRMENT COVERAGE to sudden & accidental discharge; to include [ 1 REQUIRED nvironmental impact for the disposal of [Xl NOT REQUIRED nts S RISK I See Section B-6-11 and Supplemental Insurance Requirements [ X 1 REQUIRED [ 1 NOT REQUIRED - TION FLOATER $100,000 Combined Single Limit See Section B-6-11 and Supplemental Insurance ReqUirements [l REQUIRED [Xl NOT REQUIRED -,_._~ Commerci 1 C 2 P 3 Ex 4 U 5 P 6. C 7 B 8 In 9. P AUTOMOB OR RENT WORKER EMPLOYE EXCESS PROFESS ENVIRON Not limited long-tern e contamina BUILDER INSTALLA H . IHOME\KEV' NS\GE N\Baseball\R ig htF ield Ramp\CMDesign BUlld2 .doc Page 11 of 13 C In the event of accidents of any kind, the Construction Manager shall furnish the City with copies of all reports of such accidents at the same time that the reports are forwarded to any other interested parties. II. HOLD HARMLESS A. Construction Manager agrees to contractually obligate its contractor to indemnify, save harmless and defend the City of Corpus Christi, Corpus Christi Business and Job Development Corporation, and their agents, servants, and employees, and each of them against and hold it and them harmless from any and all lawsuits, claims, demands, liabilities, losses and expenses, including court costs and attorneys' fees, for or on account of any injury to any person, or any death at any time resulting from such injury, or any damage to any property, which may arise or which may be alleged to have arisen out of or in connection with the work covered by this contract. The foregoing indemnity shall apply except if such injury, death or damage is caused by the sole or concurrent negligence of the City of Corpus Christi, their agents, servants, or employees or any other person indemnified hereunder. B The Construction Manager shall cause its contractor to obtain workers' compensation insurance coverage through a licensed insurance company or through self-insurance obtained in accordance with Texas law. If such coverage is obtained through a licensed insurance company, then the contract for coverage shall be written on a policy and endorsements approved by the Texas State Board of Insurance. If such coverage IS provided through self-insurance, then within ten (10) calendar days after the date the City requests that the Construction Manager's Contractor sign the contract documents, the Construction Manager shall provide the City with a copy of its certificate of authority to self-insure its workers' compensation coverage, as well as a letter, signed by the Consultant, stating that the certificate of authority to self-insure remains In effect and is not the subject of any revocation proceeding then pending before the Texas Workers' Compensation Commission. Further, if at any time before final acceptance of the Work by the City, such certificate of authority to self-insure is revoked or is made the subject of any proceeding which could result in revocation of the certificate, then the Consultant shall immediately provide written notice of such facts to the City, by certified mail, return receipt requested directed to: City of Corpus Christi, Department of Engineering Services, POBox 9277, Corpus Christi, Texas 78469 _ Attention: Contract Administrator Whether workers compensation insurance coverage is provided through a licensed Insurance company or through self-insurance, the coverage provided must be in an amount sufficient to assure that all workers' compensation obligations incurred by the Consultant will be promptly met. C Builder's Risk Coverage: Consultant will be responsible for providing builder's risk insurance coverage for the term of the contract up to and including the date the City finally accepts the project or work. Builder's risk coverage shall be an "All Risk" form. The policy shall be a completed value form. The Consultant shall provide such builder's risk coverage at least in the amount of $ DOLLARS) which is estimated to be the value at completion of the real or personal property to be constructed, repaired or otherwise improved under the contract. Consultant shall be responsible for paying all costs necessary to procure such builder's risk insurance coverage, including any deductible. The City shall be named an additional insured on any policy providing such insurance coverage. ! II On the certificate of insurance · The City of Corpus Christi is to be named as an additional insured on the liability coverage, except for workers' compensation coverage. · Should your insurance company elect to use the standard ACORD form, the cancellation clause (bottom right) shall be amended by adding the wording "changed or" between "be" and "cancelled" and deleting the words "endeavor to" and the wording after "left" If the cancellation clause is not amended in the ACORD form, then endorsements shall be submitted. · The name of the project also needs to be listed under "description of operations". · At least 10-day written notice of change or cancellation will be required. IV A. completed Disclosure of Interest must be submitted with your proposal. Page 13 of 13 H \HOME\KEVI NS\GEN\Baseball\RightFleldRamp\CMDesignBuild2.doc ~ Cily of .. Corpus =- :::: Chnsti CITY OF CORPUS CHRISTI DISCLOSURE OF INTERESTS ~ :Itv ot Corpus Chnstl Ordinance 7112, as amended, requires all persons or firms seeking to do business with the City ':0 provide the following Informatlui, Every question must be answered If the question is not applicable, an9wer with N ;;''', . FIRM NAME: STREET CITY: ZIP: FIRM is: 1 Corporation 5 ')tner 2 Partnership_____ 3 Sole Owner 4. Association DISCLOSURE QUESTIONS ,f additional space is necessary, please US8 the reverse side of this page or attach separate sheet. State the names of each employee of the City of Corpus Christi having an ownership interest constituting 3% or more of the ownership in the above named firm. ~,i3rle Job Title and City Department (if known) 2. State the names of each official of the CitX of Corpus Christi having an ownership interest constituting 3% or more of the ownership in the abovq~med firm. ~)ane . Title 3 State the names of each board member of the City of Corpus Christi having an ownership interest constituting 3% or more of the ownership in the above named firm. r:"1118 Board, Commission or Committee 4 State the names of each employee or officer of a consultant for the City of Corpus Christi who worked on any matter related to the subject of this contract and has an ownership interest constituting 3% or more of the ownership in the above named firm. ~'_,::=in1e Consultant CERTIFICATE certify that all Informatlorl provloed IS true and correct as of the date of this statement, that I have not knowingly vVlttlheld disciosure of any information requested, and that supplemental statements will be promptly submitted to the I':;rl\ of Corpus Christl. Texas as changes occur Certifying Person: Title: &p~~.c,.v.". II~~' Signature of Certifying Perso,,_ Date: