HomeMy WebLinkAboutC2012-009 - 1/17/2012 - ApprovedFIXED PRICE ENERGY PERFORMANCE CONTRACT
DESIGN /BUILD AGREEMENT
The Amendment for a FIXED PRICE ENERGY PERFORMANCE CONTRACT- DESIGN /BUILD
AGREEMENT (the "Agreement ") is made and entered into by and between the City of Corpus Christi, a
Texas home rule municipal corporation (the "City ") and McKinstry Essention, Inc., a Washington (state)
Corporation (the "Design /Builder ").
This Agreement is executed under seal and shall be effective on the date executed by the last
party to execute it.
This Agreement is for the design and construction of a project identified as:
Energy Efficiency Conservation Retrofit — Major City Facilities Project No. E11102 (the "Project ")
The major City -owned facilities included in the project are the American Bank Center Arena and
Convention Center, Corpus Christi International Airport, Central Library, City Hall, Health Department,
Municipal Courts, Museum of Science & History Police Department and Selena Auditorium.
After installation, the Design /Builder agrees to provide the post construction services identified in the
Energy Services Proposal "ESP" that are necessary to monitor, measure, and achieve the identified
Project Benefits (savings, cost avoidances, and mutually agreed upon billable usage increases), subject to
the terms of the guarantees set forth in the ESP. The City agrees to take all actions identified in this
AGREEMENT that are necessary to achieve the Project Benefits identified. As a result, and as
specifically set forth in the ESP, the Design /Builder will provide all labor, materials, equipment, design
services, and supervision necessary to install the equipment ( "Work ") as well as provide the post
construction monitoring, measurement and verification services for a one year period ( "Services ") detailed
in the ESP. Monitoring, measurement and verification services for Years 2 -10 are not part of this
AGREEMENT and shall be under a separate agreement. The Design /Builder further agrees to pay the
City each year in which the energy savings are less than projected for the cost of the difference between
the actual and projected energy savings.
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 Design /Builder agree as follows:
ARTICLE 1
THE CONTRACT AND THE CONTRACT DOCUMENTS
(A) The Contract The Contract between Design /Builder and City, of which this Agreement is a part,
consists of the Contract Documents. The Contract shall be effective on the date this Agreement is
effective.
(B) The Contract Documents The Contract Documents consist of this Agreement, the Design
Scope, Specifications, all Design Documents (Energy Services Proposal "ESP ") hereafter prepared by
Design/Builder and approved by City in accordance with this Agreement, Change Orders and Field Orders
issued hereafter, any other written amendments executed by City and Design/Builder all of which are
hereby incorporated herein by reference and made a part hereof,
(C) Enumerated Documents Form Entire Contract Documents not specifically enumerated in
Paragraph 1(B) of this Agreement are not Contract Documents.
(D) Complete Agreement The Contract, together with Design /Builder's and Surety's performance
and payment bonds for the Project, if any, constitute the entire and exclusive agreements between City
and Design/Builder with reference to the Project. The Contract supersedes any and all prior documents,
discussions, communications, representations, understandings, negotiations or agreements by and
between the parties.
20x2- 009 ,
`A Whole The Contract is intended to be an integral whole and shall be
nt. Work required by any page, part, or portion of the Contract shall be
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McKinstry Essention, Inc.
INDEXED
(F) Provision Of All Things Required Anything that may be required, implied or inferred by the
Contract Documents which make up this Contract, or any one or more of them, shall be provided by
Design/Builder for the Contract Price.
(G) Privity Only With Design/Builder Nothing contained in the Contract shall create, nor be
interpreted to create, privity or any other relationship whatsoever between City and any person except
Design/Builder.
(H) Agreed Interpretation Of Contract Terms When a word, term, or phrase is used in this Contract,
it shall be interpreted or construed first, as defined herein; second, if not defined, according to its generally
accepted meaning in the construction industry; and third, if there is no generally accepted meaning in the
construction industry, according to its common and customary usage. Headings are used herein solely for
convenience.
(1) Term "_Include" Intended To Be Encompassing "Include ", "includes ", or "including ", as used in the
Contract, shall be deemed in all cases to be followed by the phrase, "without limitation ".
(J) Use Of Singular And Plural Words or terms used as nouns in the Contract shall be inclusive of
their singular and plural forms, unless the context of their usage clearly requires a contrary meaning.
(K) Definition Of Material Breaches Not Exhaustive The specification herein of any act, failure,
refusal, omission, event, occurrence or condition as constituting a material breach of the Contract shall not
imply that any other, non - specified act, failure, refusal, omission, event, occurrence or condition shall be
deemed not to constitute a material breach of the Contract.
(L) Order Of Precedence In the event of any conflict, discrepancy, or inconsistency among any of
the Contract Documents which make up this Contract, the following shall control:
(1) As between figures given on plans and scaled measurements, the figures shall govern;
(2) As between large scale plans and small scale plans, the large scale plans shall govern;
(3) As between plans and specifications, the requirements of the specifications shall govern;
(4) As between this document and the plans or specifications, this document shall govern.
ARTICLE 2
DESIGN/BUILDER'S REPRESENTATIONS
(A) Specific Representations In order to induce City to execute this Agreement and recognizing that
City is relying thereon, Design/Builder, by executing this Agreement, and without superseding, limiting, or
restricting any other representation or warranty set forth elsewhere in this Agreement or the Contract, or
implied by operation of law, makes the following express representations to City:
(1) Design/Builder is professionally and fully qualified to act as the design professional and
the general contractor for the Project and is, and will remain, licensed to practice engineering and
architecture and general contracting in the State of Texas and by all other public entities having
jurisdiction over Design/Builder or the Project;
(2) Design/Builder will maintain all necessary licenses, permits or other authorizations
necessary to act as Design/Builder for the Project until Design /Builder's duties hereunder have
been fully satisfied;
(3) Design/Builder has the expertise, experience, and knowledge as well as the necessary
facilities, personnel and financial capability to perform the Design Services and the Work in
accordance with the terms of the Contract; .
(4) Prior to the execution of this Agreement, Design/Builder has visited and inspected the
Project site and the local conditions under which the Project is to be designed, constructed and
operated, and Design/Builder has performed such tests, if any, as are necessary to determine the
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conditions under which the Work will be performed, and Design/Builder accepts the conditions of
the Work site and has taken those conditions into account in entering into the Contract;
(5) Design/Builder assumes full responsibility to City for the improper acts and omissions of
its Subcontractors or others employed or retained by Design/Builder in connection with the
Project.
ARTICLE 3
REGULATORY GUIDELINES, REQUIREMENTS AND STANDARDS
(A) Generally Design/Builder shall perform 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 Design/Builder and used, operated and maintained by City 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 Design/Builder pursuant to the Contract and
all labor, materials, supervision, equipment, computers, documents, and all other things necessary for the
performance of such services. The Design Services shall be performed within the time provided by the
Design Schedule for the performance of Design /Builder's Design Services as provided in Paragraph 3(H)
of this Agreement.
(13) City's Review Of Design, Services Subject to Paragraph 13(G) of this Agreement, Design/Builder
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 Design/Builder of or otherwise diminish its obligations under the
Contract. City may direct Design/Builder to make changes to any such documents in order to conform
such documents to City's objectives. Any such changes by Design/Builder ordered by City shall not
relieve Design/Builder of its obligations hereunder unless, and only to the extent that, Design/Builder
notifies City in writing within twenty (20) calendar days of receipt of City's directive to make such changes
of any adverse impact on schedules, budgets, operational costs, operational performance, satisfaction of
regulatory requirements, or other adverse impact that may result from such changes. Failure of
Design /Builder to submit its notice within said twenty (20) calendar day period shall constitute a waiver by
Design/Builder of any claim for an adjustment to the Contract Price, the Design Schedule, or the Contract
Time.
(C) Quality Of Design Services Design/Builder shall be responsible for the professional quality,
completeness, accuracy, and coordination of Design Documents. Design/Builder 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. Design/Builder shall provide for all testing and inspections required by sound professional
architectural and engineering practices and by governmental authorities having jurisdiction over the
Project.
(D) Compliance With taws And Regulatory Requirements In providing Design Services,
Design/Builder shall comply with the lawful requirements of all federal, state, and local authorities having
lawful jurisdiction over the Project. Design /Builder 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.
(E) Duty To Correct Errors Design/Builder shall, without additional compensation, immediately
correct any errors, omissions or deficiencies in its Design Services and Design Documents.
(F) Schedule Of Design Services Design/Builder shall submit for City's approval the final design
documents to be issued for construction. All preliminary design has been completed by the
Design /Builder during the Technical Energy Audit and submitted with ESP.
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ARTICLE 4
PRELIMINARY CONSULTATION AND PROJECT ANALYSIS
(A) Determining The Project Objectives Prior to the preparation of the Final Design documents for
construction, as required by Article 5 below, Design/Builder shall first consult in detail with City, and shall
carefully analyze any information furnished by City concerning requirements of the Project, including but
not limited to, any design, construction, scheduling, budgetary or operational requirements, limitations, and
objectives, as well as the Design Scope Specification.
(B) Report On Project Requirements And Objectives Project requirements, analysis of the Project,
preliminary project schedule, schedule of values have been or will be submitted to the City's project
representative prior to start of construction.
ARTICLE 5
DETAILED DESIGN
(A) Time For Preparation Not later than sixty (60) calendar days after City has executed this
Contract, Design/Builder shall submit to.City the complete Detailed Design to be issued for construction.
(B) The Detailed Design! 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 rendering 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. Subject to the
provisions of Paragraph 13(G) of this Agreement, City shall review and approve, where appropriate, the
Design Documents, or any portion thereof.
(C) Design Documents "Design Documents" means all the design documents provided by
Design/Builder and approved by City pursuant to the Contract including, without limitation, those for use in
constructing the Project, performing the Work, and the rendering of the Project fully operational, and shall
include, without limitation, detailed plans, drawings, specifications, manuals, and related materials
prepared by or on behalf of Design/Builder. All Design documents delivered to the City for use in
constructing the project will be sealed and signed by a professional engineer registered in Texas.
ARTICLE 6
CONSTRUCTION SERVICES
(A) General Intent Design /Builder shall perform 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 Design/Builder to
perform and complete its duties relating to the construction of the Project under the Contract, including,
without limitation, the following:
(1) 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) The procurement and furnishing of all necessary building permits and other permits
required for the construction of the Project;
(4) The creation and submission to City of detailed as -built drawings depicting all as -built
construction in pdf format. To the extent Autocad files were developed during the Detailed
Design, as built documents will be delivered to the City in Autocad format.
(5) The furnishing of any required surety bonds and insurance as required by the Contract;
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(6) The furnishing of all equipment and product warranties, manuals, test results and user
guides required by the Contract or otherwise reasonably available to Design/Builder;
(7) The furnishing of all other services and things required or reasonably inferable from the
Contract Documents, including the provisions of Article 9 below.
ARTICLE 7
TIME FOR CONSTRUCTION; THE CONTRACT TIME
(A) Notice Of Commencement After City has approved the Design Documents for the Detailed
Design, City shall issue a notice to commence the Work directing Design/Builder to proceed with the Work
on the date indicated in the notice (the "Commencement Date "). The notice to commence Work shall be
issued at least ten (10) days prior to the Commencement Date.
(B) Time For Completion: Design/Builder shall commence the Work on the Commencement Date,
and the Work shall be carried out regularly and without interruption. Design/Builder shall substantially
complete the Work not later than three hundred sixty five (365) calendar days or such other date as may
by Change Order be designated (the "Scheduled Completion Date "). The number of calendar days
between the effective date of the Contract and the Scheduled Completion Date is the "Contract Time ".
Design/Builder shall achieve Final Completion of the Work no later than thirty (30) calendar days after
achieving Substantial Completion.
(C) Liquidated Damages For Delay In Final Completion: If Design/Builder fails to achieve Final
Completion within sixty calendar days of the date of Substantial Completion, Design/Builder shall pay City
the sum of One Hundred and nolxx Dollars ($100.00) per day for each and every calendar day of
unexcused delay in achieving Final Completion beyond the date set forth herein for Final Completion of
the Work. Any sums due and payable hereunder by Design/Builder shall be payable, not as a penalty, but
as liquidated damages representing an estimate of delay damages likely to be sustained by City,
estimated at the time of executing this Agreement. Such liquidated damages shall apply regardless of
whether Design/Builder has been terminated by City prior to Final Completion so long as Design /Builder's
actions or inactions contributed to the delay_ Such liquidated damages shall be in addition to and not in
preclusion of the recovery of actual damages resulting from other defects in Design /Builder's performance
hereunder for matters other than delays in Final Completion. When City reasonably believes that Final
Completion will be unexcusably delayed, City shall be entitled, but not required, to withhold from any
amounts otherwise due to Design/Builder an amount then believed by City to be adequate to recover
liquidated damages applicable to such delays. If and when Design/Builder overcomes the delay in
achieving Final Completion, or any part thereof, for which City has withheld payment, City shall promptly
release to Design/Builder those funds withheld, but no longer applicable as liquidated damages.
It is mutually agreed the agreement does not recognize substantial completion, but the City may elect to
administratively stop time pending receipt of documents required to achieve Final Completion. Final
completion requires the submission the final invoice, affidavit of release of liens, letter of percentage of
MBE goal actually achieved and/or good faith efforts to achieve the MBE goal, copies of all certified
payrolls, final invoice, as -built drawings, warranties, operating manuals, etc.
(D) Time Is Of The Essence All limitations of time set forth herein are material and time is of the
essence of the Contract.
ARTICLE 8
ADDITIONAL DUTIES AND RESPONSIBILITIES OF DESIGNIBUILDER
(A) Design/Builder To Perform All Work Re uired 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 Design/Builder in accordance with Article 10 of this
Agreement and without increase to the Contract Price.
(B) Strict Compliance With The Contract Documents: All Work performed by Design/Builder shall be
in strict compliance with the Contract. "Substantial compliance" is not strict compliance. Any Work not in
strict compliance with the Contract is defective.
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(C) Supervision Of The Work: The Work shall be strictly supervised and directed using
Design /Builders best and highest skill and effort, Design/Builder bearing full responsibility for any and all
acts or omissions of those engaged in the Work on behalf of Design/Builder.
(D) Warranty Of Workmanship And Materials Design/Builder warrants and guarantees to City 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 Design/B ui [der's
warranty.
(E) Commencement Of Guarantee And Warranty Periods Special or specific guarantees and
warranties which are required by the Contract to run for a fixed period of time shall commence running on
the date of Substantial Completion of all the Work.
(F) Design /Builder's Schedule Of Construction Design/Builder, within fifteen (95) days after the
Commencement Date, shall submit to City, for its information, and comply with, Design /Builder'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. 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.
Strict compliance with the requirements of this Paragraph shall be a condition precedent for payment to
Design/Builder, and failure to strictly comply with said requirements shall constitute a material breach of
the Contract.
(G) Record Copy Of Contract Documents Design/Builder shall continuously maintain at the site, for
the benefit of City, an updated copy of the Contract, including one record copy of the Contract Documents
marked to record on a current basis changes, selections and modifications made during construction.
Additionally, Design/Builder shall maintain at the site, for the benefit of City, a copy of all Shop Drawings,
Product Data, Samples, and other Submittals. Upon Final Completion of the Work, or upon City's request,
all of the documents described in this Paragraph shall be finally updated and delivered to City and shall
become the property of City.
(H) Review And Approval Of Submittals Design/Builder shall review, study, and approve, or take
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.
(1) City's Option To Review Submittals: City shall, in its discretion, have the right to review and
approve Submittals, and if City so elects, Design/Builder shall not perform any portion of the Work as to
which City has required submittal and review until such Submittal has been approved by City's
Representative. Approval by City, however, shall not be evidence that Work installed pursuant thereto
conforms to the requirements of the Contract nor shall such approvals relieve Design /Builder of any of its
responsibilities or warranties under the Contract. if City elects to review Submittals, Design/Builder shall
maintain a Submittal log which shall include, at a minimum, the date of each Submittal, the date of any
resubmittal, the date of any approval or rejection, and the reason for any approval or rejection.
Design/Builder shall have the duty to carefully review, inspect and examine any and all Submittals before
submission of same to City. Shop Drawings and other Submittals from Design/Builder do not constitute a
part of the Contract.
(J) Procurement And Review Of Warranties Design/Builder shall procure from all Subcontractors
and Suppliers and shall transmit to City, all warranties required by the Contract. Design/Builder shall
review all such warranties and shall certify to City that the warranties are in strict compliance with the
requirements of the Contract.
(K) Procurement Of Operations And Maintenance Documentation Design/Builder shall prepare or
procure and shall transmit to City all documentation required by the Contract regarding the operation and
recommended maintenance programs relating to the various elements of the Work.
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(L) As -Built Drawings Design/Builder shall prepare and provide to City 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.
(M) Compliance With Labor Laws Design/Builder shall assume 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.
(tN) Testing, Inspections, And Approvals Design/Builder shall be responsible for procuring 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. Design/Builder shall
submit certified results of such tests to City. If the laws, ordinances, rules, regulations or orders of any
public authority having jurisdiction require any Work to be specifically inspected, tested, or approved,
Design/Builder shall assume full responsibility therefor, pay all costs in connection therewith and furnish to
City the required certificates of inspection, testing or approval.
(0) City's Regulations_ And Applicable Laws Design/Builder shall, during the course of the Work,
comply with any regulations or guidelines prescribed by City. Design/Builder 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 Design/Builder in connection with the Work to be performed under the Contract.
(P) Compliance With Construction Regulations Design/Builder 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 Design/Builder, and Design/Builder shall indemnify and hold City harmless from all loss,
damages, and expense, including attorney's fees, resulting from any such violation or alleged violation.
(Q) Permits. Licenses And !Notices All construction and building permits, licenses and authorizations
necessary for the construction of the Project shall be secured and paid for by Design/Builder.
Design/Builder shall notify City's Representative when it has received said permits, licenses and
authorizations and upon receipt shall supply City with copies of same. The originals of said permits,
licenses and authorizations shall be delivered to City upon completion of the Work, and receipt of such
documents by City shall be a condition precedent to final payment. Design/Builder shall also give and
maintain any and all notices required by applicable laws pertaining to the construction of the Work.
(R) Conditions To Site Access While on City's property, all Design /Builder's employees and
Subcontractors shall confine themselves to areas designated by City's Representative and will be subject
to City's badge and pass requirements, if any, in effect at the site of the Work.
(S) Site Safety And Security Design/Builder 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. Design/Builder shall at all times safeguard City's
property and employees from injury or loss in connection with the performance of the Contract.
Design /Builder 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 damage. Design/Builder 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.
(T) Repair Of Collateral Damages Unless otherwise instructed by City, Design/Builder shall repair
and return to original condition all buildings, streets, curbs, sidewalks, utilities or other facilities affected by
Design /Builder's performance of the Work, all without additional cost to City.
(U) Cleaning The Site Design /Builder shall keep the site reasonably clean during performance of the
Work. Upon Final Completion of the Work. Design/Builder shall thoroughly clean the site and the Project
and remove all waste, debris, trash and excess materials or equipment, together with Design /Builder's
property therefrom,
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(V) City's Access To Work At all times relevant to the Contract, Design /Builder shall provide access
to the Work to City and its designees without formality or other procedure.
(W) Decisions Regarding Aesthetic Effect City's decisions in matters relating to aesthetic effect shall
be final if consistent with the intent of the Contract.
(X) Design/Builder To Remain An Independent Contractor In the performance of the Contract,
Design /Builder's status as an independent contractor shall not be modified or diminished by reason of any
instructions issued by City or City's Representative to Design/Builder or any of Design /Builder's
employees, Subcontractors, or representatives.
(Y) Design/Builder Access to Work Sites The Design/Builder acknowledges the work sites are
essential to City operations, and will remain in service during the course of the Project. The
Design/Builder will accommodate the City's operational needs and schedules of events at the work sites,
which in some cases will require suspension of construction activities during certain events. The
DesignlBuilder also further acknowledges that the security and public safety requirements of certain areas
will require escort, background checks and other security measures.
(Z) Prevailing Wage Rate The Design/Builder acknowledges the project is subject to the prevailing
wage rate attached as Exhibit "A ", and that all contractor and sub - contractor personnel are to be paid the
prevailing rate. The contractor is responsible for obtaining the weekly prevailing report from each sub-
contractor showing the individual employee, social security number, classification, hourly rate, hours
worked and any wages withheld.
ARTICLE 9
CONTRACT PRICE
(A) Contract Price City shall pay, and Design/Builder shall accept, as full and complete payment for
the Design Services, the performance of all the Work required by the Contract, and the performance of all
requirements of this Agreement, the fixed price of Six Million Nine Hundred Fifty Thousand and Nolxx
Dollars ($6,950,000.00). The price set forth in the preceding sentence is referred to herein as the
"Contract Price ". The Contract Price is a guaranteed maximum price which includes a contingency for the
Design Builder to address reasonable changes and hidden conditions that may be encountered. The
Contract Price shall not be modified unless all conditions precedent to a change in the Contract Price have
been satisfied, including the execution of a Change Order in accordance with the requirements of this
Agreement.
ARTICLE 10
PAYMENT OF THE CONTRACT PRICE
(A) Payment Procedure City shall pay the Contract Price to Design/Builder in accordance with the
procedures set forth in this Article 10.
(B) Allocation Of Contract Price The Contract Price shall be allocated between the Design Services
and the Work as follows: Three Hundred Sixty Five thousand and nolxx dollars ($365,000.00) shall be
allocated to the Design Services, and the remainder of the Contract Price shall be allocated to the Work.
(C) Payment For Design Services The amount of the Contract Price allocated to the Design Services
shall be paid based upon Design /Builder's achievement of each of the design milestones described in
Exhibit "B ". Upon achievement of each of the design milestones described in Exhibit "B ", Design/Builder
shall submit a Pay Request with appropriate backup documentation. In its Pay Request for Design
Services, Design /Builder may request payment for ninety five per cent (95 %) of the value allocated for
such Design Services as provided in this Article 11 with the final five per cent (5 %) due upon delivery of
the one year warranty inspection report. City shall pay such invoice as provided in this Article 11.
(D) Payment For Construction Services - Schedule Of Values: Within ten (10) calendar days after the
commencement of construction, Design/Builder shall prepare and present to City a Schedule of.Values
allocating among the different elements of the Work that portion of the Contract Price assigned to the
Work. Design /Builder's Schedule of Values shall be prepared in such form, with such detail, and
supported by such data as City may, at its option, require. Design/Builder shall not front -end load its
Schedule of Values, shall not imbalance its Schedule of Values nor assign a value to any element which
exceeds its true value, The allocated value of each item in the Schedule of Values shall only include its
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total cost and proportionate share of any general overhead and profit. Any violation by Design /Builder of
the requirements of this Para rah shall constitute a material breach of the Contract. The Schedule of
Values shall be used only as a basis for Design /Builder's pay requests and shall only be so used after it
has been acknowledged in writing by City.
(E) Time For Construction Pay Requests On or before the tenth day of each month after
commencement of the Work, but no more frequently than monthly, Design/Builder shall submit a pay
request for the Work performed through the last day of the preceding month. Pay requests will be
submitted to:
Kenneth Kaper, P.E.
Construction Engineer
City of Corpus Christi
P.O. Box 9277 or 4917 Holly Road
Corpus Christi, Tx. 78469 -9277.
(F) Progress Payments For Construction Services Based upon Design /Builder's pay requests
submitted to City, City shall make progress payments to Design/Builder on account of the Contract Price
less such amounts, if any, owing by Design/Builder to City or which City shall have the right to withhold as
authorized by this Agreement.
(G) Contents And Amounts Of Pay Requests Construction pay requests shall be in such form and
manner, and with such supporting data and content as City may require. In its construction pay request,
Design/Builder may request payment for (1) ninety five percent (95 %) of the value allocated to that portion
of the Work properly performed through the applicable date in the pay request; plus (2) ninety five percent
(95 %) of that portion of the Contract Price properly allocable to materials or equipment necessary for the
Work and properly stored at the Project site (or elsewhere in a bonded warehouse if approved in advance
in writing by City); less (3) the total amount of previous payments received from City for the Work.
Payment on account of stored materials or equipment shall be conditioned upon Design /Builder's proof,
satisfactory to City, that City has title to such materials or equipment and that they are fully insured against
loss or damage and that all required insurance regarding such materials or equipment is in full force and
effect. Pay requests will not be processed until all weekly payroll reports for the Design/Builder and
subcontractors are submitted and required insurance certificates have been submitted for the
Design/Builder and all sub - contractors on site for the pay request period submitted.
(H) Design/Builders Representations Regarding Pay Requests: Each pay request shall be signed by
Design/Builder and shall constitute Design /Builder's representation that the Design Services and the Work
have progressed to the level for which payment is requested in accordance with the milestones or the
Schedule of Values, that the Design Services and the Work have been properly installed or performed in
strict accordance with this Agreement, and that Design/Builder knows of no reason why payment should
not be made as requested. The submission by Design/Builder of a pay request constitutes an affirmative
representation and warranty that all Work for which payments have been received from City is free and
clear of liens, claims, security interests or other encumbrances in favor of Design/Builder or any other
person or entity whatsoever. In the event that City learns that any representations of Design/Builder as set
in this Paragraph are wholly or partially inaccurate, City may withhold payment of sums then or in the
future otherwise due to Design/Builder until the inaccuracy, and the cause thereof, is corrected to City's
reasonable satisfaction.
(1) City's Review Of Pay Requests City shall have the right to review all pay requests and the Design
Services and the Work at the Project site or elsewhere to determine whether the quantity and quality of
the Work and the Design Services is as represented in the pay request and as required by the Contract.
(J) Conditions Precedent To Payment In addition to all other conditions precedent contained herein,
it shall be a condition precedent to payment of the final pay request that Design/Builder have submitted
updated schedules for the performance of its Work and Design Services as required by this Agreement
and that [Design/Builder shall have furnished to City properly executed waivers of lien, in a form acceptable
to City, from all subcontractors, materialmen, suppliers or others having lien rights, wherein they shall
acknowledge receipt of all sums due pursuant to all prior pay requests and waive and relinquish any liens
or lien rights relating thereto and that the Design Builder furnish current payroll certifications for all the
Design Builder and subcontractors and that required insurance certificates in the format required are on
file with the City for the Design/Builder and all subcontractors..
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(K) Amount Of Progress Payments City shall pay the amount of each pay request properly due
under this Agreement less such amounts, if any, owing by Design /Builder to City or which City shall have
the right to withhold as authorized by this Agreement.
(L) Time For Payment Subject to City's right of review and objection, City shall make payrnent on
account of the Contract Price within thirty (30) calendar days following the receipt of a correct and
approved Design /Builder's pay requests.
(M) Title Passes Upon Payment Design/Builder warrants and represents that upon payment of any
pay request submitted by Design/Builder, title to all Work covered by the pay request shall immediately
pass to City.
(N) Design /Builder's Use Of Progress Payments Upon receipt of any payment from City,
Design/Builder shall promptly pay all Subcontractors, materialmen, laborers, and Suppliers such amounts
as they are entitled for the Work covered by such payment.
(0) Use Of Joint Checks If City becomes informed that Design/Builder has not paid a Subcontractor,
materialman, laborer, or Supplier as provided herein. City shall have the right, but not the duty, to issue
checks and payment then or thereafter otherwise due to Design/Builder naming Design /Builder and any
such Subcontractor, materialmen, laborer, or Supplier as joint payees. Such joint check procedure, if
employed by City, shall create no rights in favor of any person or entity beyond the right of the named
payees to payment of the check and shall not be deemed to commit City to repeat the procedure in the
future nor to create any contractual or other relationship of any kind between City and such person or
entity.
(P) Payment Not A Waiver Or Acceptance No payment to Design/Builder, nor any use or occupancy
of the Project by City, shall be interpreted or construed to constitute acceptance of any Work not in strict
compliance with the Contract, and DesignlBuilder expressly accepts the risk that defective Work may not
be detected (1) during any inspection by City, (2) prior to making of any payment to Design/Builder, or (3)
before City's occupancy of the Project.
(Q) Withholding Of Payme_n_t City shall have the right to refuse to make payment and, if necessary,
may demand the return of a portion or all of the amount previously paid to Design/Builder in an amount
then believed by City to be adequate to cover the penalties, damages, and potential losses resulting or
likely to result from:
(1) The quality of a portion, or all, of Design /Builder's Work not being in accordance with the
requirements of this Contract;
(2) The quantity of Design /Builder's Work not being as represented in Design/Builder's pay
request, or otherwise;
(3) Design /Builder's rate of progress being such that, in City's opinion, Substantial
Completion, Final Completion, or both, may be unexcusably delayed;
(4) Design /Builder's failure to use Contract funds, previously paid Design/Builder by City, to
pay Design /Builder's Project - related obligations including, but not limited to, Subcontractors,
laborers and material and equipment Suppliers;
(5) Evidence that the balance of the Work cannot be completed in accordance with the
Contract for the unpaid balance of the Contract Price;
(6) Claims made, or likely to be made, against City or its property;
(7) Loss caused by Design /Builder;
(8) Design /Builder's failure or refusal to perform any of its obligations to City.
In the event that City makes written demand upon Design/Builder for amounts previously paid by City as
contemplated in this Paragraph 11(Q), Design/Builder shall promptly comply with such demand.
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ARTICLE 11
FINAL COMPLETION
(A) Final Completion "Final Completion" means the completion of all Design Services and all Work
required by, and in strict compliance with, the Contract, including Design/Builder's provision to City of all
documents and things required to be provided by the Contract.
(B) Determination Of Final Completion When Design/Builder believes that all of the Work is finally
complete, and Design/Builder is ready for a final inspection, Design/Builder shall so notify City in writing.
City 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 will issue a Certificate for Final Payment,
providing for payment of the remainder of the Contract Price, less any amount withheld pursuant to the
Contract.
(C) Payment After Final Completion City shall make final payment of all sums due Design/Builder
within thirty (30) days after Final Completion as reflected by City's Certificate for Final Payment, provided
that all documents and things required to be delivered to City hereunder have been delivered as required,
and provided that all other conditions precedent to payment have been satisfied.
(D) Conditions Precedent To Final Pay ment: Prior to being entitled to receive final payment, and as a
condition precedent thereto, Design/Builder shall furnish City, in the form and manner required by City, the
following:
(1) An affidavit that all of Design /Builder's obligations to Subcontractors, laborers, equipment
or material Suppliers, or other third parties in connection with the Project, have been paid
or otherwise satisfied,
(2) A letter stating the actual percentage of minority women owned enterprise (MBE)
business participation achieved in the project based on the percentage of MBE payments
divided by construction cost and good faith effort to achieve the MBE, goal for the project if
the goal was not obtained.
(3) If required by City, separate releases of lien or lien waivers from each Subcontractor,
lower tier subcontractor, laborer, Supplier or other person or entity who has, or might have
a claim against City or City's property;
(4) If applicable, consent(s) of surety to final payment;
(5) the final and any outstanding certified weekly payrolls for the contractor and all
subcontractors;
(6) the final invoice including release of retainage,
(7) A complete set of the as -built drawings and the record set of Contract Documents;
(8) All product warranties, operating manuals, instruction manuals and other record
documents, drawings and things customarily required of a Contractor, or expressly
required herein, as a part of or prior to Project closeout.
(E) Acceptance Of Final Payment A Waiver. Acceptance by Design/Builder of final payment shall
constitute a waiver and release of all claims against City by Design/Builder except for those claims
previously made in writing against City by Design/Builder, pending at the time of final payment and
specifically identified on Design /Builder's pay request for final payment as unsettled at the time it submits
its pay request.
ARTICLE 12
CITY'S DUTIES, OBLIGATIONS, AND RESPONSIBILITIES
In addition to payment, City shall undertake to perform the following:
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(Al Provide Project Information City will or has provided Design/Builder with information regarding
existing plans, the City's requirements for the Project including any desired or required design or
construction schedule.
(13) Review Of Documents City shall review any documents submitted by Design/Builder requiring
City's decision, and shall render any required decisions pertaining thereto.
(C) Provide Notice Of Defects In the event City 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 shall give prompt notice thereof in writing to Design/Builder.
(D) Access To The Site And The Work City shall provide Design/Builder access to the site and to the
Work, and shall provide Design/Builder with such information, existing and reasonably available,
necessary to Design /Builder's performance of the Contract as Design/Builder may request.
(E) Cooperation To Secure Permits, Licenses, Approvals, And Authorizations City shall cooperate
with Design/Builder in securing any necessary licenses, permits, approvals or other necessary
authorizations for the design, construction and certification of the Project.
(F) Timely Performance City shall perform the duties set forth in this Article 13 in a reasonably
expeditious fashion so as to permit the orderly and timely progress of Design /Builder's Design Services
and of the Work.
(G) City's Reviews, Inspections, Approvals, And Payments Not A. Waiver City's review, inspection, or
approval of any Work, Design Documents, Submittals, or pay requests by Design/Builder shall be solely
for the purpose of determining whether such Work and such documents are generally consistent with
City's construction program and requirements. No review, inspection, or approval by City of such Work or
documents shall relieve Design/Builder 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 Design/Builder of responsibility for the strict
performance of its obligations under the Contract. Payment by City pursuant to the Contract shall not
constitute a waiver of any of City's rights under the Contract or at law, and Design/Builder expressly
accepts the risk that defects in its performance, if any, may not be discovered until after payment,
including final payment, is made by City.
(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 Design/Builder
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.
(1) Documents Requested By Design/Builder. City shall furnish to Design/Builder, prior to the
execution of this Agreement, any and all written and tangible material knowingly in its possession
concerning conditions at the site of the Project. Such written and tangible material is furnished to
Design/Builder only in order to make complete disclosure of such material and for no other purpose. By
furnishing such material, City does not represent, warrant, or guarantee its accuracy or completeness
either in whole or in part, and shall have no liability therefor. If Design/Builder requests in writing, City shall
also furnish surveys, legal limitations, and utility locations (if known), and a legal description of the Project
site.
(J) Approvals And Easements City shall obtain all easements required for construction, and shall
pay for necessary assessments and charges required for use and occupancy of the Work. Design/Builder
shall render such assistance as City may request in obtaining such easements, certificates of occupancy,
and the like.
(K) Right To Stop Work In the event Design/Builder 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 may, at its option,
instruct Design/Builder to cease and desist from performing further Work, or any part thereof. Upon
receipt of such instruction from City in writing, Design/Builder shall immediately cease and desist as
instructed by City and shall not proceed further until the cause for City's instructions has been corrected,
no longer exists, or City instructs that the Work may resume.
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(L) City's Right To Perform Work: In the event City issues such instructions to stop Work, and in the
further event that Design /Builder fails and refuses within seven (7) days of receipt of same to provide
adequate assurance to City that the cause of such instructions will be eliminated or corrected, then City
shall have the right to carry out the Work with its own forces, or with the forces of other contractors, and
Design/Builder shall be fully responsible for the costs incurred in performing such Work. The rights set
forth in Paragraph 13(K) and this Paragraph 13(L) are in addition to, and without prejudice to, any other
rights or remedies City may have against Design/Builder, including the rights to terminate or withhold
payment as provided herein.
(M) City's Representative "City's Representative" means the individual named by City, in writing, to
act on City's behalf in the administration of the Contract.
(N) Hazardous Materials Except as provided in the ESP, the Fixed Price set forth by this agreement
excludes Work or Services of associated with the abatement, cleanup, control, removal, or disposal of
hazardous materials or substances. Hazardous substances include but are not limited to asbestos, lead
or PCBs, in or on the City premises. The Design/Builder agrees to promptly notify the City upon the
identification or discovery of such materials, secure a price proposal from subcontractor properly licensed
to abate, clean, control, remove and dispose of such materials. The DesignBuilder will submit to the City
a request for a change order. Upon issuance of the change order, the Design/Builder will contract for the
services required to properly abate, remove, transport and dispose of the material. The Design /Builder
will ensure that the City is provided with all transportation, disposal and waste manifests attesting to the
proper handling and disposal of any hazardous waste requiring abatement as a result of this project. The
agreed change order will evidence in writing the price to be paid by the City to the Design/Builder and any
additional contract time authorized.
ARTICLE 13
PROJECT DOCUMENTATION
(A) Maintenance Of Project- Related Records: Design/Builder shall maintain and protect all records
relating in any manner whatsoever to the Project (the "Project Records ") for no less than four (4) years
after Final Completion of the Project, and for any longer period of time as may be required by law or good
management practice.
(B) Availability Of Project- Related Records To Cit : All Project Records which are in the possession
of DesignlBuilder or Design /Builder's Subcontractors shall be made available to City for inspection and
copying upon City's request at any time. Additionally, such records shall be made available upon request
by City to any state, federal or other regulatory authorities, and any such authority may review, inspect and
copy such records. The Project Records include, without limitation, all drawings, plans, specifications,
Submittals, correspondence, logs, minutes, memoranda, photographs, tape or videotape recordings, or
other writings or things which document the Project, its design, or its construction. Said records include
those documents reflecting the cost of design and construction to Design/Builder.
ARTICLE 14
PERSONNEL, SUBCONTRACTORS AND SUPPLIERS
(A) Subcontractor Defined A "Subcontractor" means an entity which has a direct contract with
Design/Builder 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.
(B) Supplier Defined A "Supplier" means an entity providing only equipment or materials for the
performance of the Work.
(C) Objections To Subcontractors Upon execution of this Agreement, and at such later times as may
be applicable, Design/Builder shall furnish City, in writing, the names of persons or entities proposed by
Design/Builder to act as Subcontractors on the Project. Design/Builder shall provide such information
regarding such proposed Subcontractors as City deems necessary. City shall promptly reply to
Design/Builder, in writing, stating any objections City may have to such proposed Subcontractors.
Design/Builder shall not enter into a subcontract with an intended Subcontractor with reference to whom
City objects. Any consent or failure to reject by City shall in no way relieve Design/Builder of any of its
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duties or warranties under the Contract. The Design Builder will provide to the City the names and
addresses of all subcontractors from which bids or proposals were requested or secured including the
percentage by dollar value of the subcontracts being performed by subcontractors located within the
Corpus Christi MSA.
(D) Terms Of Subcontracts All subcontracts and purchase orders with Subcontractors shall afford
Design/Builder rights against the Subcontractor which correspond to those rights afforded to City against
Design/Builder 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 Design/Builder and a provision to this
effect shall be inserted into all agreements between Design/Builder and its Subcontractors.
(E) Design/Builder Responsible For Acts Of Its Subcontractors Should Design/Builder subcontract all
or any part of the Work, such subcontracting of the Work shall not relieve Design/Builder from any liability
or obligation under the Contract or under any applicable policy, law or regulation, and Design/Builder 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, Design/Builder shall employ and assign only
qualified and competent personnel to perform any service or task concerning. the Project. Design/Builder
shall designate one such person as the Project Manager. Absent written instruction from Design/Builder
to the contrary, the Project Manager shall be deemed to be Design/Builder's authorized representative and
shall be authorized to receive and accept any and all communications from City. Key design and
supervisory personnel assigned by Design/Builder to this Project are subject to approval by the City.
Approval will not be unreasonably withheld.
Evidence Project Manager's and other assigned personnel's competence, such as a resume, shall be
provided to City prior to said personnel beginning performance of the function indicated. So long as the
individuals named above remain actively employed or retained by Design/Builder, or any related entity or
affiliate thereof, they shall perform the functions indicated next to their names unless City agrees to the
contrary in writing or unless City requests removal of any such individual from the Project. In the event
City requests the removal of any of the individuals assigned, Design/Builder shall immediately comply and
shall immediately replace such individual with a qualified substitute to whom City makes no objection.
Design/Builder shall be bound by the provisions of this Paragraph 15(F) as though such individuals had
been listed herein.
(G) Removal Of Subcontractors And Personnel If, at any time during the course of the Project, City
reasonably determines that the performance of any Subcontractor or any member of Design /Builder's staff
working on the Project is unsatisfactory, City's Representative may require Design/Builder 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 15
CHANGES AND EXTENSIONS OF TIME
(A) City's Right To Order Changes Changes in the Design Services or the Work within the general
scope of the Contract, consisting of additions, deletions, revisions or any combination thereof, may be
ordered unilaterally by City without invalidating the Contract. Such changes shall be communicated by
Change Order or by Field Order. Design/Builder shall proceed diligently with any changes, and same shall
be accomplished in strict accordance with the following terms and conditions as set forth in this Article 16.
(B) Definition Of Change Order: "Change Order" shall mean a written order to Design/Builder
executed by City, issued after execution of this Agreement, authorizing and directing a change in the
Design Services or the Work, an adjustment to the Contract Price or the Contract Time, or any
combination thereof. The Contract Price and the Contract Time may be changed only by Change Order.
(C) Adjustments To Contract Price Or Contract Time Upon the occurrence of a change as set forth in
Paragraph 16(A), the adjustment, if any, to the Contract Price or the Contract Time resulting from the
change shall be determined as follows:
(1) By mutual agreement between City and Design/Builder as evidenced by (a) the change in
the Contract Price, the Contract Time, or both, being set forth in a Change Order, (b) such
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change, together with any conditions or requirements relating thereto, being initialed by both
parties, and (c) Design /Builder's execution of the Change Order; or
(2) If no mutual agreement occurs between City and Design/Builder, then the change in the
Contract Price, if any, shall be established on the basis of, and shall be limited to, the reasonable
expenditures or savings, as defined below, resulting from the change. Such reasonable
expenditures or savings shall include a component for direct jobsite overhead and profit, but shall
not include home office overhead or other indirect costs or components. Any such expenditures
or savings shall be documented in such form and with such content and detail as City may
require. Reasonable expenditures or savings shall be limited to the following:
(a) Actual, reasonable costs of Design Services, supervision, materials, supplies or
equipment including delivery costs;
(b) Actual, reasonable costs of Design Services, supervision, labor, plus social
security, unemployment insurance, fringe benefits required by agreement or custom, and
worker's compensation insurance;
(c) Actual, reasonable rental costs of machinery and equipment (exclusive of small
tools or hand tools) whether rented from Design/Builder or others;
(d) Actual, reasonable costs of premiums for bonds, permit fees, and sales, use or
other taxes related to the Work.
In no event shall any expenditure or savings associated with Design/Bu iIder's home office or
indirect overhead expense be included in any Change Order.
(3) Any extension of the Contract Time requested by Design/Builder for performance of any
change in the Design Services or the Work ordered by City may be granted by mutual agreement
and then set forth in the Change Order. Otherwise, extensions of the Contract Time must be
requested by Design/Builder pursuant to the terms and conditions of Article 17 of this Agreement,
and any such request for extension of the Contract Time shall be subject to Paragraph 16(G) of
this Agreement. The failure of Design/Builder to provide notice in writing to City in accordance
with Article 17 of this Agreement of any request for extension of the Contract Time shall constitute
a waiver by Design/Builder of any entitlement to an extension of the Contract Time.
(D) Continuing Duty To Perform Work And Make Pa meat: In the event the parties are unable to
agree on the terms of a Change Order, then Design/Builder shall continue to diligently perform the Design
Services and the Work, including any change directed by City by Change Order, and shall keep thorough
records of the cost of performance of such Change Order consistent with and in accordance with the
provisions of Paragraph 16(C)(2) above. Pending final determination of reasonable expenditures or
savings, payments on account shall be made to Design/Builder in accordance with said Paragraph
16(C)(2) and Article 11 herein.
(E) Changes In Unit _Prices If unit prices are provided in the Contract, and if the quantities
contemplated are changed in a proposed Change Order such that an application of the unit prices to the
quantities of Work proposed will cause substantial inequity to City or to Design/Builder, the applicable unit
prices shall be equitably adjusted.
(F) Minor Changes City shall have authority to order minor changes in the Work not involving a
change in the Contract Price nor extension of the Contract Time and not inconsistent with the intent of the
Contract. Such minor changes shall be made by written Field Order, and Design/Builder shall promptly
carry out such written Field Orders.
(G) Effect Of Executed Change Order The execution of a Change Order by Design/Builder shall
constitute conclusive evidence of Design /Builder's agreement to the ordered changes in the Design
Services or the Work, the Contract as thus amended, the Contract Price as thus amended and the
Contract Time as thus amended. Design/Builder, by executing the Change Order, waives and releases
any claim against City for additional time or compensation for matters relating to, arising out of, or
resulting from the Design Services or the Work included within or affected by the executed Change Order.
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(H) Consent Of Surety Design/Builder shall notify and obtain the consent and approval of
Design /Builder's surety with reference to all Change Orders if such notice, consent or approval are
required by City, Design /Builder's surety or by law. Design /Builder's execution of the Change Order shall
constitute Design /Builder's warranty to City that the surety has been notified of, and consents to, such
Change Order and the surety shall be conclusively deemed to have been notified of such Change Order
and to have expressly consented thereto.
(1) Fiduciary Relationship Design/Builder recognizes and accepts a fiduciary relationship of trust
and confidence hereby established between Design/Builder and City and agrees that it shall at all times in
good faith use its best efforts to advance City's interests and agrees to perform the Design Services and
the Work in the best professional manner.
ARTICLE 16
CLAIMS BY DESIGNIBUILDER
(A) Terms And Conditions Of Claims Claims by Design/Builder against City are subject to the terms
and conditions of this Article 17, and strict compliance herewith shall be a condition precedent to any
liability of City therefor.
(B) Notice Of Claim All DesignlBuilder claims, disputes and other matters in question against City
arising out of or related to the Contract or the breach thereof, including without limitation claims in respect
of changes in the Contract Price or Contract Time, shall be initiated by a written notice of claim submitted
to City. Such written notice of claim shall be received by City no later than seven (7) days after the event,
or the first appearance of the circumstances, causing the claim, and same shall set forth in detail all
known facts and circumstances supporting the claim including the amount claimed. Design/Builder
agrees and acknowledges that its failure to provide written notice of a claim as set forth herein shall
constitute a waiver of any claim for additional compensation or time extension related thereto.
(C) Documentation In Support Of Claims Upon discovering an event or condition forming the basis
of a claim for an increase in the Contract Price or an extension of the Contract Time, Design/Builder shall,
until the claim is resolved, commence to maintain separate records evidencing all costs and delays
incurred in connection with the event or condition forming the basis for the claim.
(D) Formal Written Claim No later than thirty (30) days after the date of the written notice of claim,
Design/Builder shall submit a formal written claim which shall include at least the following information: (1)
a concise statement of the occurrence(s) supporting the claim, dispute or other matter, and the relief
sought; (2) identification of the facts giving rise to the claim dispute or other matter; (3) the date
DesignlBuilder discovered the occurrence(s); (4) a detailed schedule of values identifying all costs
resulting from the claim, dispute or other matter; (5) documentation supporting the schedule of values; (6)
identification of any impact the claim, dispute or other matter has on the critical path schedule; and (7) all
correspondence, internal memoranda, progress notes, and other documentation relating to the events
which form the basis of the claim, dispute or other matter. Other information or documents shall be
submitted to City within ten (10) days after written request by City. The failure to provide a claim as set
forth herein, or the failure to provide such other documents or information requested by City within ten (10)
days after the written request shall constitute a waiver of any claim for additional compensation or time
extension related thereto.
(E) Continuous Duty To Provide Documentation: Design/Builder shall provide, and continue to
provide, to City all such documentation, including cost and time records, as and when City may request so
that City may evaluate Design /Builder's claim.
(F) Duty To Continue Performance Design/Builder and City shall continue their performance
hereunder regardless of the existence of any claims submitted by Design/Builder.
(G) Differing Site Conditions In the event Design/Builder discovers previously concealed and
unknown site conditions which are materially at variance from those typically and ordinarily encountered in
the general geographical location of the Project, and not reasonably discoverable by Design /Builder's
diligent inspections as required herein, the Contract Price shall be modified, either upward or downward,
upon the written claim made by either party within seven (7) calendar days after the first appearance to
such party of the circumstances. As a condition precedent to City having any liability to Design/Builder
due to concealed and unknown conditions, Design/Builder must give City written notice of, and an
opportunity to observe, such condition prior to disturbing it. The failure of Design/Builder to give the
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written notice and make the claim as provided by this Paragraph 17(G) shall constitute a waiver by
Design/Builder of any rights arising out of or relating to such concealed and unknown condition including
any claim for an increase in the Contract Price or any claim for an extension of the Contract Time.
(H) Claims For Increase In Contract Price In the event Design/Builder seeks to make a claim for an
increase in the Contract Price, as a condition precedent to any liability of City therefor, Design/Builder shall
strictly comply with the requirements of Paragraph 17(B) above and such notice shall be given by
Design/Builder before proceeding to execute any additional or changed Work. Failure of the condition
precedent to occur shall constitute a waiver by Design/Builder of any claim for additional compensation.
(1) Limit Of City's Liability For Increased Costs: In connection with any claim by Design/Builder
against City for compensation in excess of the Contract Price, any liability of City (1) shall be strictly limited
to direct cost actually and reasonably incurred by Design/Builder in accordance with the provisions
regarding changes in the Contract Price as set forth in Paragraph 16(C)(2), and (2) shall in no event
include, indirect, consequential, impact or other costs, expenses or damages of Design/Builder or its
Subcontractors. City shall not be liable to DesignlBuiider for claims of third parties, including
Subcontractors, for acts, omissions, events, or conditions for which City would not be liable to
Design/Builder under the terms of the Contract. As a condition precedent to City's liability to
Design/Builder for any foss or damage resulting from claims of third parties, including Subcontractors,
such third parties must have complied with all conditions contained in their agreements with
Design/Builder and such Subcontractors's claims must have been submitted to City by Design/Builder in
strict compliance with all the requirements of this Article 17. City shall not be liable to Design/Builder for
claims of third parties including Subcontractors, unless and until the liability of Design/Builder therefor has
been established in a court of competent jurisdiction.
(J) Claims For Increase In Contract Time If Design/Builder is delayed in progressing any task which
at the time of the delay is then critical or which during the delay becomes critical, as the sole result of any
act or neglect to act by City or someone acting in City's behalf, or by changes ordered in the Design
Services or the Work, unusually bad weather not reasonably anticipatable, fire or other Acts of God, then
the date for achieving Substantial Completion, or, as applicable, Final Completion, shall, subject to the
provisions of Paragraph 17(K) below, be appropriately adjusted by City upon the written notice and claim
of Design/Builder to City for such reasonable time as City may determine. A task is critical within the
meaning of this Paragraph 17(J) if, and only if, said task is on the critical path of the Project schedule so
that a delay in performing such task will delay the ultimate completion of the Project. As a condition
precedent to any right to an extension of time, Design/Builder shall strictly comply with the requirements of
Paragraph 17(B) above and such notice shall be given by Design/Builder before proceeding to execute
any additional or changed Design Services or Work. If Design/Builder fails to give such notice, any claim
for an extension of time shall be waived. In the event the delay to Design /Builder is a continuing one, only
one notice and claim for additional time shall be necessary, provided the continuing nature of the delay is
indicated in the notice and claim.
(K) City's Right To Order Acceleration And To Deny Claimed And Appropriate Time Extensions In
Whole Or In Part Design/Builder acknowledges and agrees that Substantial Completion of the Work by
or before the Scheduled Completion Date is, or may be, of substantial importance to City.
(1) City shall accordingly have the right in its sole discretion to order Design/Builder to
accelerate its progress in such a manner as to achieve Substantial Completion on or before such
date as City may reasonably direct and, upon receipt, Design/Builder shall comply with such order.
(2) In the event that Design/Builder is otherwise entitled to an extension of Contract Time and
has made claim therefor in accordance with Paragraph 17(J) above, City shall have the right in its
sole discretion to deny all, or any part, of such extension of Contract Time by written notice to
Design/Builder provided within seven (7) days of receipt of Design /Builder's claim. Should City
deny Design /Builder's claim for an extension of Contract Time under this Subparagraph (2), either
in whole or in part, Design/Builder shall proceed to prosecute the Work in such a manner as to
achieve Substantial Completion on or before the then existing Scheduled Completion Date,
(3) In the event that (a) City orders Design/Builder to accelerate its progress under
Subparagraph 17(K)(1) above, or (b) City exercises its rights under Subparagraph 17(K)(2) above,
or (c) both, such action shall be deemed to constitute a Change Order under Article 16 and any
change in the Contract Price shall be determined in accordance therewith.
Page 17 of 22
(L) Claims Resolved By Change Order The resolution of any claim under this Article 17 shall be
reflected by a Change Order executed by City and Design /Builder.
ARTICLE 17
UNCOVERING AND CORRECTING WORK
(A) Design/Builder Not To Cover Work Contrary To Requirements If any of the Work is covered,
concealed or obscured contrary to the written request of City, or contrary to any provision of the Contract,
said Work shall, if required by City, be uncovered for inspection and shall be properly replaced at
Design /Builder's expense without change in the Contract Time.
(B) City's Right To Order Uncoverinq Of Any 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, be
uncovered for inspection. If such Work conforms strictly with the Contract, the cost of uncovering and
proper replacement shall by Change Order be charged to City. If such Work does not strictly conform with
the Contract, Design/Builder shall pay the cost of uncovering and proper replacement.
(C) Duty To Correct Rejected Work Design/Builder shall immediately proceed to correct Work
rejected by City as defective or failing to conform to the Contract. Design/Builder shall pay all costs and
expenses associated with correcting such rejected Work, including any additional testing and inspections
made necessary thereby.
(D) Duty To Correct Defective Work Discovered After Completion In addition to its warranty
obligations set forth elsewhere herein, Design/Builder 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. This obligation shall survive final payment by City and termination of the
Contract.
(E) No Period Of Limitation Established Nothing contained in Paragraph 18(D) shall establish any
period of limitation with respect to other obligations which Design/Builder has under the Contract.
Establishment of the one -year time period in Paragraph 18(D) above relates only to the duty to
Design/Builder to specifically correct the Work.
(F) City's Option To Accept Defective Work City may, but shall in no event be required to, choose to
accept defective or nonconforming Work. In such event, the Contract Price shall be reduced by the
reasonable costs of removing and correcting the defective or nonconforming Work. City shall be entitled
to such reduction in the Contract Price regardless of whether City has, in fact, removed and corrected
such defective Work. If the unpaid balance of the Contract Price, if any, is insufficient to compensate City
for the acceptance of defective or nonconforming Work, Design/Builder shall, upon written demand from
City, pay City such additional compensation for accepting defective or nonconforming Work.
ARTICLE 18
SUSPENSION AND TERMINATION
(A) S_ uspension Of Performance City may for any reason whatsoever suspend performance under
the Contract. City shall give written notice of such suspension to Design/Builder specifying when such
suspension is to become effective.
(B) Ceasing_ Performance Upon Suspension From and upon the effective date of any suspension
ordered by City, Design/Builder shall incur no further expense or obligations in connection with the
Contract, and Design/Builder shall cease its performance. Design/Builder shall also, at City's direction,
either suspend or assign to City any of its open or outstanding subcontracts or purchase orders.
(C) Claim For Costs Of Suspension In the event City directs a suspension of performance under this
Article 19, through no fault of Design/Builder, and provided Design/Builder submits a proper claim as
provided in this Agreement, City shall pay Design/Builder as full compensation for such suspension
Design /Builder's reasonable costs, actually incurred and paid, of:
(1) Demobilization and remobilization, including such costs paid to Subcontractors;
(2) Preserving and protecting Work in place;
Page 18 of 22
(3) Storage of materials or equipment purchased for the Project, including insurance thereon;
(4) Performing in a later, or during a longer, time frame than that contemplated by this
Contract.
(D) Resumption Of Work After Suspension If City lifts the suspension it shall do so in writing, and
Design/Builder shall promptly resume performance of the Contract unless, prior to receiving the notice to
resume, Design/Builder has exercised its right of termination as provided herein.
(E) Termination By Design/Builder For Prolonged Suspension Of Performance If performance of this
Contract is stopped for a period of ninety (90) consecutive days at the direction of City pursuant to
Paragraph 19(A) or by an order of any court or other public authority, or as a result of any act of the
Government, and provided that such suspension by City or public authority is through no fault of
Design /Builder or any person or entity working directly or indirectly for Design/Builder, Design/Builder may,
upon ten (10) days' written notice to City, terminate performance under the Contract and recover from City
on the terms and conditions and in the amounts provided in Paragraph 19(H) below.
(f) Term_ ination By Design/Builder For Cause If City shall persistently or repeatedly fail to perform
any material obligation to Design/Builder for a period of thirty (30) days after receiving written notice from
Design/Builder of its intent to terminate hereunder, Design/Builder may terminate performance under the
Contract by written notice to City. In such event, Design/Builder shall be entitled to recover from City on
the terms and conditions and in the amounts as though City had terminated Design /Builder's performance
under the Contract for convenience pursuant to Paragraph 19(G) below.
(G) Termination By City For Convenience City may, for any reason whatsoever, or without reason,
terminate performance under the Contract by Design/Builder for convenience. City shall give written
notice of such termination to Design /Builder specifying when termination becomes effective.
Design/Builder shall incur no further obligations in connection with the Contract and Design/Builder shall
stop Design Services and the Work when such termination becomes effective. Design /Builder shall also,
at City's direction, either terminate or assign to City outstanding orders and subcontracts. Design/Builder
shall settle the liabilities and claims arising out of any terminated subcontracts and orders. City may direct
Design /Builder to assign Design /Builder's right, title and interest under terminated orders or subcontracts
to City or its designee. Design/Builder shall transfer title and deliver to City such completed or partially
completed Design Documents, Work and materials, equipment, parts, fixtures, information and Contract
rights as Design/Builder has.
(H) Submission Of Termination Claim And Compensation For Termination For Convenience When
terminated for convenience, Design/Builder shall be compensated as follows:
(1) Design /Builder shall submit a termination claim to City specifying the amounts believed to
be due because of the termination for convenience together with costs, pricing or other data
required by City. If Design/Builder fails to file a termination claim within three (3) months from the
effective date of termination, City shall pay Design/Builder an amount derived in accordance with
Subparagraph (3) below;
(2) City and Design/Builder may agree to the compensation, if any, due to Design /Builder
hereunder;
(3) Absent agreement to the amount due to Design /Builder, City shall pay Design /Builder, as
full compensation for termination for convenience, the following amounts:
(a) That portion of the Contract Price representing the value of the Design Services
and the Work, as reflected on the Schedule of Values, performed by Design/Builder prior
to its receipt of the notice of termination, which is completed and accepted by City for
which Design/Builder has not been previously paid;
(b) Reasonable costs incurred in preparing to perform and in performing the
terminated portion of the Design Services and the Work, and in terminating
Design /Builder's performance, plus a fair and reasonable allowance for direct jobsite
overhead and profit thereon (such profit shall not include anticipated profit or
Page 19 of 22
consequential damages); provided however, that if it appears that Design/Builder would
have not profited or would have sustained a loss if the entire Contract would have been
completed, no profit shall be allowed or included and the amount of compensation shall
be reduced to reflect the anticipated rate of loss, if any;
(c) Reasonable costs of settling and paying claims arising out of the termination of
subcontracts or orders pursuant to Paragraph 19(G) above. These costs shall not include
amounts paid in accordance with other provisions hereof.
In no event shall Design/Builder be entitled to recover anticipated profits or other consequential damages
from City on account of a termination for convenience or an erroneous termination for cause, as described
below. The total sum to be paid Design/Builder under this Paragraph shall not exceed the Contract Price,
as properly adjusted, reduced by the amount of payments otherwise made, and shall in no event include
duplication of payment.
(1) Termination By City For Cause: If Design/Builder does not perform the Work, or any part thereof,
in a timely manner, supply adequate labor, supervisory personnel or proper equipment or materials, or if it
fails to timely discharge its obligations for labor, equipment and materials, or proceeds to disobey
applicable laws, ordinances, rules, regulations or orders of any public authority having jurisdiction, or
otherwise commits a violation of a material provision of the Contract, then City may by written notice to
Design/Builder, without prejudice to any other right or remedy against Design/Builder or others, terminate
the performance of Design/Builder and take possession of the Project site and of all materials and
equipment at the site and may finish the Work by whatever methods it may deem expedient. In such
cases, Design /Builder shall not be entitled to receive any further payment until the Work is finished.
(J) Erroneous Termination For Cause In the event the employment of Design/Builder is terminated
by City for cause pursuant to Paragraph 19(l) and it is subsequently determined by a court or other tribunal
of competent jurisdiction that such termination was without cause, such termination shall thereupon be
deemed a Termination for Convenience under Paragraph 19(G) and the provisions of Paragraph 19(H)
regarding compensation shall apply.
(K) Payments To Design/Builder After Termination For Cause: If the unpaid balance of the Contract
Price exceeds the costs of finishing the Work, including compensation for City's additional costs and
expenses of every nature whatsoever made necessary thereby, such excess shall be paid to
Design/Builder. If such costs exceed the unpaid balance, Design/Builder shall pay the difference to City.
This obligation for payment shall survive the termination of the Agreement.
ARTICLE 19
OWNERSHIP OF DOCUMENTS
(A) Documents City's Pro ert : The Design Documents and the Contract Documents, including but
not limited to, the drawings, specifications and other documents or things prepared by Design/Builder for
the Project, shall immediately become and be the sole property of City. Any documents furnished by City
shall remain the property of City. Design/Builder may be permitted to retain copies of the Design
Documents and Contract Documents and any documents furnished by City for its records with approval in
writing of City; provided, however, that in no event shall Design/Builder use, or permit to be used, any
portion of all of such documents on other projects without City's prior written authorization.
ARTICLE 24
HOLD HARMLESS AND INDEMNIFICATION
INDEMNIFICATION AND HOLD HARMLESS. The Design/Builder agrees to indemnify, save harmless
and defend the City of Corpus Christi, and its agents, servants, and employees as more fully set forth by
the Mandatory Requirements as attached in Exhibit "C ".
ARTICLE 21
INSURANCE
Insurance Required Design/Builder will obtain insurance in accordance as set forth in the Mandatory
Requirements as attached and set forth in Exhibit "C ". The Design/Builder will secure and deliver copies
of insurance certificates for the contractor and all sub - contractors to the City.
ARTICLE 22
Page 20 of 22
SURETY BONDS
(A) Performance Bond And Payment Bond Design /Builder shall furnish separate performance and
payment bonds to City prior to the start of construction. Each bond shall set forth a penal sum in an
amount not less than the Contract Price. The Bonds shall cover completion of the physical work per the
approved design, and shall not guarantee or warranty efficiency or system performance. The Bonds shall
not cover any obligation of the contractor to ensure that the work as constructed will result in any particular
level of energy savings. Each bond furnished by Design/Builder 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 Design/Builder, the penal sum of both the performance
bond and the payment bond shall be deemed increased by like amount. The format of the performance
and payment bonds furnished by Design/Builder shall be in form attached and include a local agent.
Format of the performance and payment bonds are attached as Exhibit "D ".
ARTICLE 23
MISCELLANEOUS PROVISIONS
(A) Governing Law: The Contract shall be governed by the laws of the State of Texas with any
adjudication to be within Nueces County wherein the Project is situated.
(B) Successors And Assigns: City and Design/Builder 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 - Assignment Design/Builder shall not assign the Contract, or any part of the Contract,
without prior written consent of City.
(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 the following addresses:
To City:
En ineerin Services
P.O. Box 9277
Corpus Christi Texas 78469 -9277
Attn: Kevin Stowers, Assistant Director of Engineering Services
Phone: 361 - 826 -3500 Fax: 361 -826 -3501 E -mail: kevins cctexas.com
To Design/Builder:
McKinsta Essention Inc.
13465 Midway Road
Dallas TX 75244
Attn:
Phone: Fax: E -mail:
All notices shall be effective upon receipt.
(E) Pu_ blicity No information relative to the existence or the details of the Design Services or the Work
shall be released by Design/Builder, either before or after completion of the Project, for
publication, advertising or any commercial purposes without City's prior written consent.
(F) Severabili!y 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.
DISCLOSURE OF INTEREST
DesignlBuilder further agrees, in compliance with City of Corpus Christi Ordinance No. 17112, to
complete, as part of this contract, the Disclosure of interests form attached hereto as Exhibit "E ".
Executed by the parties' duly authorized representatives as indicated by their signatures below.
Page 21 of 22
CITY
B / -���lZ
(Signature) N Date
ATTEST
(City Secretary) Date
ATTEST S TO FO
By:
(Assistant City Attomey) Aare
RECOMMENDED:
DESIGN/BUILDER
. AUTHU KILtL ,-
Iff MUNCIL I III I I Z
Page 22 of 22
li
McKinst Essention Inc. Seal
(Typed Name of Design/Builder)
EXHIBIT A
PREVAILING WAGE RATES
General Decision Number: TX100061 04/22/2011 TX61
Superseded General Decision Number: TX20080061
State'. Texas
Construction Type: Building
Counties: Nueces and San Patricia Counties in Texas.
BUILDING CONSTRUCTION PROJECTS (does not include residential construction consisting of single
family homes and apartments up to and including 4 stories)
Modification Number Publication Date
0 03112/2010
1 04122/2011
BRTX0001 -005 0510112008
Rates Fringes
BRICKLAYER .......................$ 21.06 6.70
ELECO278 -001 08/2912010
Rates Fringes
ELECTRICIAN ......................$ 21.70 6.83
IRON0066 -002 06/0112009
Rates Fringes
IRONWORKER .......................$ 18.50 5.15
PAI N0130 -001 07/01/2009
Rates Fringes
PAINTER ..........................$ 17.35 6.35
---------------------------------------------------------------
SUTX1987-00 03/01/1987
Rates Fringes
CARPENTER ........................$ 9.96
Cement Mason/Finisher ....... ..... $ 12.50
LABORER: Mason Tender ........... $ 7.25
Exhibit A
Page 1 of 3
LABORER ..........................$ 7.25
Plumbers and Pipefitters
(Including HVAC) .................$ 10.05
Power equipment operators:
Backhoe .....................$ 7.84
ROOFER, Including Built Up,
Composition and Single Ply
Roofs ............................$ 9.20
TRUCK DRIVER .....................$ 7.50
WELDERS - Receive rate prescribed for craft performing operation to which welding is incidental.
Unlisted classifications needed for work not included within the scope of the classifications listed may be
added after award only as provided in the labor standards contract clauses (29CFR 5.5 (a) (1) (ii)).
In the listing above, the "SU" designation means that rates listed under the identifier do not reflect
collectively bargained wage and fringe benefit rates. Other designations indicate unions whose rates
have been determined to be prevailing.
WAGE DETERMINATION APPEALS PROCESS
1.) Has there been an initial decision in the matter? This can
be:
• an existing published wage determination
• a survey underlying a wage determination
• a Wage and Hour Division letter setting forth a position on
a wage determination matter
• a conformance (additional classification and rate) ruling
On survey related matters, initial contact, including requests for summaries of surveys, should be with the
Wage and Hour Regional Office for the area in which the survey was conducted because those Regional
Offices have responsibility for the Davis -Bacon survey program. If the response from this initial contact is
not satisfactory, then the process described in 2.) and 3.) should be followed.
With regard to any other matter not yet ripe for the formal process described here, initial contact should
be with the Branch of Construction Wage Determinations. Write to:
Branch of Construction Wage Determinations
Wage and Hour Division
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, DC 20210
Exhibit A
Page 2 of 3
2.) If the answer to the question in 1.) is yes, then an interested party (those affected by the action) can
request review and reconsideration from the Wage and Hour Administrator (See 29 CFR Part 1.8 and 29
CFR Part 7). Write to:
Wage and Hour Administrator
U.S. Department of Labor
200 Constitution Avenue, N.W,
Washington, DC 20210
The request should be accompanied by a full statement of the interested party's position and by any
information (wage payment data, project description, area practice material, etc.) that the requestor
considers relevant to the issue.
3.) if the decision of the Administrator is not favorable, an interested party may appeal directly to the
Administrative Review Board (formerly the Wage Appeals Board). Write to:
Administrative Review Board
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, DC 20210
4.) All decisions by the Administrative Review Board are final.
END OF GENERAL DECISION
Exhibit A
Page 3 of 3
EXHIBIT B
DESIGN MILESTONES
DESIGN PHASE
PERCENT OF DESIGN FEE
Final Design Phase
95%
Warranty Phase
5%
Exhibit B
Pa 1of1
Exhibit C
Mandatory Requirements
(Revised September, 2001)
DESIGN /BUILDER LIABILITY INSURANCE
A. The Consultant shall not commence work under this Agreement until he/she has
obtained all insurance required herein and such insurance has been approved by
the City. Nor shall the Consultant allow any subconsultantlsubcontractor to
commence work until all similar insurance required of the
subconsultantlsubcontractor has been so obtained.
B. The Consultant and any subconsultantlsubcontractor shall furnish two (2) copies of
certificates, with the City named as an additional insured, showing the following
minimum coverage in an insurance company acceptable to the City.
TYPE OF INSURANCE
MINIMUM INSURANCE COVERAGE
30 -Day Notice of Cancellation required on all
Bodily Injury and Property Damage
certificates
Commercial General Liability including:
$2,000,000 COMBINED SINGLE LIMIT
1. Commercial Form
2. Premises — Operations
3. Explosion and Collapse Hazard
4. Underground Hazard
5. Products/ Completed Operations Hazard
6. Contractual Insurance
7. Broad Form Property Damage
8. Independent Consultants
9. Personal Injury
AUTOMOBILE= LIABILITY- -OWNED NON -OWNED
$1,000,000 COMBINED SINGLE LIMIT
OR RENTED
WHICH COMPLIE=S WITH THE TEXAS WORKERS=
WORKERS' COMPENSATION
COMPENSATION ACT AND PARAGRAPH 11 OF
THIS EXHIBIT
EMPLOYERS' LIABILITY
$100,000
EXCESS LIABILITY
$1,000,000 COMBINED SINGLE LIMIT
PROFESSIONAL POLLUTION LIABILITY/
$2,000,000 COMBINED SINGLE LIMIT
ENVIRONMENTAL IMPAIRMENT COVERAGE
Not limited to sudden & accidental discharge; to include
[ ] REQUIRED
long -tern environmental impact for the disposal of
jX] NOT REQUIRED
contaminants
BUILDERS' RISK
See Section B -6 -11 and Supplemental Insurance
Requirements
[ ] REQUIRED [X] NOT REQUIRED
$100,000 Combined Single Limit
Exhibit C
Page 1 of 3
INSTALLATION FLOATER See Section B -6 -11 and Supplemental Insurance
Requirements
[X] REQUIRED [ ] NOT REQUIRED
C. In the event of accidents of any kind, the Consultant 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. INDEMNIFICATION AND HOLD HARMLESS
A. Design/Builder agrees to indemnify, save harmless and defend the City of
Corpus Christi, and its 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, its agents, servants, or employees
or any other person indemnified hereunder.
B. The Design/Builder shall 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 Consultant sign the contract
documents, the Consultant 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, P. O. Box 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.
Exhibit C
Page 2 of 3
rim
■. ..
— in fl — i - -
III. 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.
Exhibit C
Page 3 of 3
EXHIBIT D
PAYMENT BOND
PERFORMANCE BOND
PAYMENT BOND
Rev. Date May 2011
STATE OF TEXAS § BOND No.
COUNTY OF §
KNOW ALL BY THESE PRESENTS:
That of the
City of County of and State of
as principal ( "Principal "), and , a
solvent company duly authorized under the laws of the State of Texas to act as surety on bonds
for principals ( "Surety "), are held and firmly bound unto the City of Corpus Christi, a Home Rule
municipal corporation of Nueces County, Texas ( "City" or "OWNER "), and unto all
Subcontractors, workers, laborers, mechanics and suppliers as their interests may appear, all of
whom shall have a right to sue upon this bond in the penal sum of
U.S. Dollars
($ U.S. to be paid in Nueces County, Texas, for the payment of
which sum well and truly to be made, We, said Principal and Surety, bind ourselves and our
heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these
presents:
Conditions of this bond are such that, whereas, Principal has entered into a certain
written contract with the City of Corpus Christi (OWNER), dated the. day of
, 20_, which Agreement is hereby referred to and made a part hereof as fully and to the
same extent as if copied at length herein, for the construction of:
INSERT PROJECT
NAME HERE
Now, therefore, the condition of this obligation is such, that if said Principal shall well and
truly pay all Subcontractors, workers, laborers, mechanics and suppliers, all monies to them
owing by said Principals for subcontracts, work, labor, equipment, supplies and materials done
and furnished for the construction of improvements of said Agreement, then this obligation shall
be and become null and void; otherwise to remain in full force and effect.
Surety, for value received, stipulates and agrees that no change to the contract time or
contract amount, and no alteration or addition to the terms of the contract, or to the work
performed thereunder, or to the plans, specifications, drawings, etc., accompanying the same
shall in anywise affect its obligation on this bond, and it does hereby waive notice of any such
change, extension of time, alteration or addition to the terms of the contract, or to the work to be
performed thereunder.
Provided further, that this bond is executed pursuant to Chapter 2253, Texas
Government Code, as amended.
Provided further, that if any legal action be filed on this bond, venue shall lie in Nueces
County, Texas.
The undersigned agent is hereby designated by the Surety as the Resident Agent in
Nueces County to whom any requisite notices may be delivered and on whom service of
process may be had in matters arising out of such suretyship, as provided by Sections
3503.001 to 3503.005 Texas Insurance Code, as amended.
In witness whereof, said Principal and Surety have signed and sealed this instrument in 4
copies, each one of which shall be deemed an original, this the day of
, 20
PRINCIPAL
By:
Title:
ATTEST:
Secretary
Add ress:
SURETY
M
Attorney -in -fact
Address:
Telephone:
Fax:
E -Mail:
Name and address of Resident Agent of Surety in Nueces County, Texas, for delivery of notice
and service of process:
Name:
Address:
Telephone:
(Physical Street Address)
(City) . (State) (zip)
Note: Bond shall be issued by a solvent Surety company authorized to do business in Texas,
and shall meet any other requirements established by law or by OWNER under applicable law.
Note: Surety Agent's Original Power of Attorney must be attached hereto.
Note: Date of Payment Bond must not be prior to date of contract.
END
PERFORMANCE BOND
(Rev. Date May 2011)
STATE OF TEXAS § BOND No.
COUNTY OF
KNOW ALL BY THESE PRESENTS:
That of the
City of County of and State of
as principal ( "Principal "), and , a
solvent company duly authorized under the laws of the State of Texas to act as surety on bonds
for principals ( "Surety "), are held and firmly bound unto the City of Corpus Christi, a Home Rule
municipal corporation of Nueces County, Texas ( "City" or "OWNER "), in the penal sum of
U.S. Dollars ($ U.S. to
be paid in Nueces County, Texas, for the payment of which sum well and truly to be made, We,
said Principal and Surety, bind ourselves and our heirs, executors, administrators, successors
and assigns, jointly and severally, firmly by these presents:
Conditions of this bond are such that, whereas, Principal has entered into a certain
written contract with the City of Corpus Christi (OWNER), dated the of
20 ^, which Agreement is hereby referred to and made a part hereof as fully and
to the same extent as if copied at length herein, for the construction of:
INSERT PROJECT
NAME HERE
Now therefore, the condition of this obligation is such, that if said Principal shall faithfully
perform said Agreement in accordance with the plans, specifications and contract documents,
including any changes, extensions, or guarantees, and including all and singular covenants,
conditions, and agreements in and by said contract agreed and covenanted by Principal to be
observed and performed, and according to the true intent and meaning of said Agreement
hereto annexed, and if the Principal shall repair and/or replace all defects due to faulty
materials and /or workmanship that appear within a period of one (1) year from the date of
completion and acceptance of improvements by the City(OWNER), then this obligation shall be
void; otherwise to remain in full force and effect.
Surety, for value received, stipulates and agrees that no change to the contract time or
contract amount, and no alteration or addition to the terms of the contract, or to the work
performed thereunder, or to the plans, specifications, drawings, etc., accompanying the same
shall in anywise affect its obligation on this bond, and it does hereby waive notice of any such
change, extension of time, alteration or addition to the terms of the contract, or to the work to be
performed thereunder.
Provided further, that this bond is executed pursuant to Chapter 2253, Texas
Government Code, as amended.
Provided further, that if any legal action be filed on this bond, venue shall lie in Nueces
County, Texas.
The undersigned agent is hereby designated by the Surety as the Resident Agent in
Nueces County to whom any requisite notices may be delivered and on whom service of
process may be had in matters arising out of such suretyship, as provided by Sections
3503.001 to 3503.005 Texas Insurance Code as amended.
In witness whereof, said Principal and Surety have signed and sealed this instrument in 4
copies, each one of which shall be deemed an original, this the day of , 20
PRINCIPAL SURETY
By:
Title:
ATTEST:
Secretary
Address:
Attorney -in -fact
Address:
Telephone:
Fax:
II&FIN
Name and address of Resident Agent of Surety in Nueces County, Texas, for delivery of notice
and service of process:
Name:
Address:
Telephone:
(Physical Street Address)
(City) (State) (Zip)
Note: Bond shall be issued by a solvent Surety company authorized to do business in Texas,
and shall meet any other requirements established by law or by OWNER under applicable law.
Note: Surety Agent's Original Power of Attorney must be attached hereto.
Note: Date of Performance Bond must not be prior to date of contract.
END
SUPPLIER NUMBER
TO BE ASSIGNED BY CITY
PURCHASING DIVISION
City of CITY OF CORPUS CHRISTI
Corpus
Christi DISCLOSURE OF INTEREST
City of Corpus Christi Ordinance 17112, as amended, requires all persons or firms seeking to do business with the
City to provide the following information. Every question must be answered. If the question is not applicable,
answer with "NA ". Seereverse side for Filing Requirements, Certifications and definitions.
COMPANY NAME:
P. O. BOX: 2 4 5te —7 V
STREET ADDRESS: �D� '�'}�� r s CITY: ZIP: l
FIRM IS: 1. Corporation 2. Partnership ❑ 3. Sole Owner El 4. Association 5. Other
DISCLOSURE QUESTIONS
If additional space is necessary, please use the reverse side of this page or attach separate sheet.
1. 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."
Name No M C Job Title and City Department (if known)
2. State the names of each "official" of the City of Corpus Christi having an "ownership interest" constituting 3%
or more of the ownership in the above named "firm."
Name Krd KLV, 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."
Name ONE � Board, Commission or Committee
fV' . _.
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."
Name Consultant
FILING REQUIREMENTS
If a person who requests official action on a matter knows that the requested action will confer an economic benefit
on any City official or employee that is distinguishable from the effect that the action will have on members of the
Page 1 of 2
public in general or a substantial segment thereof, you shall disclose that fact in a signed writing to the City official,
employee or body that has been requested to act in the matter, unless the interest of the City official or employee in
the matter is apparent. The disclosure shall also be made in a signed writing fled with the City Secretary. [Ethics
Ordinance Section 2 -349 (d)]
CERTIFICATION
1 certify that all information provided is true and correct as of the date of this statement, that I have not
knowingly withheld disclosure of any information requested; and that supplemental statements will be promptly
submitted to the City of Corpus Christi, Texas as changes occur.
Certifying Person: ` �p en aQk— Title: ��Y- of Fjkla t,_ I,
(Type or nt) -.
Signature of Certifying Person` �� Date: ! 015Iz01
DEFINITIONS
a. "Board member." A member of any board, commission, or committee appointed by the City Council of the
City of Corpus Christi, Texas.
b. "Economic benefit ". An action that is likely to affect an economic interest if it is likely to have an effect on that
interest that is distinguishable from its effect on members of the public in general or a substantial segment
thereof.
c. "Employee." Any person employed by the City of Corpus Christi, Texas either on a full or part-time basis,
but not as an independent contractor.
d. "Firm." Any entity operated for economic gain, whether professional, industrial or commercial, and whether
established to produce or deal with a product or service, including but not limited to, entities operated in the
form of sole proprietorship, as self - employed person, partnership, corporation, joint stock company, joint
venture, receivership or trust, and entities which for purposes of taxation are treated as non -profit organizations.
e. "Official," The Mayor, members of the City Council, City Manager, Deputy City Manager, Assistant City
Managers, Department and Division Heads, and Municipal Court Judges of the City of Corpus Christi, Texas.
f. "Ownership Interest." Legal or equitable interest, whether actually or constructively held, in a firm,
including when such interest is held through an agent, trust, estate, or holding entity. "Constructively held"
refers to holdings or control established through voting trusts, proxies, or special terms of venture or
partnership agreements."
g. "Consultant." Any person or firm, such as engineers and architects, hired by the City of Corpus Christi for the
purpose of professional consultation and recommendation.