HomeMy WebLinkAboutContract 53813 A
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CSC No. 53813
RECEIVED
APR 21 2020 AGREEMENT FOR DESIGN-BUILD SERVICES
CITY OF FORT WORTH
CITY SECRETARY For
CHISHOLM TRAIL PARK PHASE TWO DEVELOPMENT
THIS AGREEMENT FOR DESIGN-BUILD SERVICES which INCLUDES DESIGN AND
CONSTRUCTION SERVICES ("Agreement"), is made and entered into by and between
the CITY of Fort Worth, a Texas municipality, ("CITY") and The Fain Group, Inc, a legal
entity authorized under the laws of the State of Texas, ("DESIGN-BUILDER"). CITY and
DESIGN-BUILDER may be referred to herein as a "Party" or the "Parties".
WHEREAS, CITY desires to procure Design-Build services from DESIGN-BUILDER,
which consists of Design and Construction Services, and DESIGN-BUILDER, selected
by CITY through a competitive procurement process, possesses broad experience,
knowledge and technical resources to provide such services related to the design,
permitting, construction and construction management for the Chisholm Trail Park
Phase Two Development (the "Project"); and
WHEREAS, the DESIGN-BUILDER is willing and able to undertake and provide the
Design and Construction services and to be responsible for the overall completion of the
Project within a project amount of $2,303,000.00, upon the terms, covenants, recitals,
and conditions hereinafter set forth; and
WHEREAS, DESIGN-BUILDER agrees to provide Design and Construction services as
defined in Attachment A and as further set forth in the written proposal to CITY from
DESIGN-BUILDER, dated the 22 day of November , 2019 , attached hereto
as Attachment B; and
WHEREAS, the DESIGN-BUILDER agrees to be bound by and incorporate into its
construction phase contracts, the CITY's Standard General Conditions for a Design-
Build Agreement ("General Conditions"), attached hereto as Attachment C; and
WHEREAS, capitalized terms not specifically defined herein, including in any
Attachment, shall have the meaning associated with those capitalized/defined terms as
found in the General Conditions. Conflicting definitions shall be harmonized to obtain a
meaning consistent with the intent of the Agreement and the Project's scope.
NOW THEREFORE, for and in consideration of these recitals, compensation by CITY
for the services to be rendered by DESIGN-BUILDER, and the covenants and promises
to be carried out by each Party, the CITY and DESIGN-BUILDER hereby agree to
perform the services described herein upon the terms and conditions set forth herein
and in any Attachments and Exhibits hereto, which are hereby incorporated.
OFRUAL RECORD
QTV SECRETARY
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ARTICLE 1 — SERVICES
A. DESIGN-BUILDER agrees to furnish all Design and Construction Services, as
described in Attachments A and B.
B. The Design Services, estimated to cost $193,000.00, shall commence within 7
calendar days after receipt of an authorization in the form of a Notice to Proceed
from the CITY to DESIGN-BUILDER. Design Services include development of a
Guaranteed Maximum Price ("GMP"). Costs of Design Services shall be included in
the GMP. DESIGN-BUILDER may initiate Construction phase early works packages,
such as for utility relocations, prior to final development of the GMP. Costs of early
works packages shall be included in the GMP.
1. The DESIGN-BUILDER shall prepare schematic design Drawings in sufficient
detail and scope to clearly identify all major features of the Project. The CITY
must accept, in writing, the Drawings prior to DESIGN-BUILDER commencing
detailed design work resulting in final Construction Documents.
2. Pursuant to a mutually agreeable schedule, the DESIGN-BUILDER shall
submit for the CITY'S approval revised Construction Documents reflecting
any changes proposed by the CITY and accepted by the DESIGN-BUILDER
prior to the submission of the final Construction Documents to the CITY.
C. DESIGN-BUILDER agrees to furnish all Construction Services, as described in
Attachments A and B, for the amount set forth in the GMP, as hereinafter
described, abiding by this Agreement and its Amendments and Attachments, to also
include the Construction Documents created to effect the Work on the Project.
D. The Construction Services shall commence within 7 calendar days after receipt
of an authorization in the form of a Notice to Proceed from the CITY to DESIGN-
BUILDER.
E. The DESIGN-BUILDER shall be responsible for obtaining and paying for any
necessary temporary construction easements or permission from adjacent
landowners to allow DESIGN-BUILDER to perform the Work.
F. The DESIGN-BUILDER shall provide final Construction Documents at the
conclusion of the Project, at a minimum, the "as-built" or record set of construction
documents for the Project prepared pursuant to Chapter 1001, Texas Occupations
Code.
G. DESIGN-BUILDER warrants to CITY that all materials and equipment furnished
under this Agreement will be new, unless otherwise specified. The DESIGN-
BUILDER also warrants to CITY that all materials and equipment furnished under
this Agreement will be in conformance with the Construction Documents.
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ARTICLE 2 — COMPENSATION
A. DESIGN-BUILDER'S compensation for providing Design-Build Services shall be
the Design-Builder's Fee of 8.3% of the Guaranteed Maximum Price ("Design-Build
Fee").
B. CITY may, by giving written notice at any time before the end of the Design
Services phase, elect to terminate this Agreement should a GMP not be successfully
negotiated or if the GMP, in the CITY's reasonable estimation, exceeds or would
exceed the CITY's Estimated Construction Budget. In such event, DESIGN-
BUILDER shall be paid for Work performed up to the date of termination in
accordance with this Agreement.
C. DESIGN-BUILDER Contingency - The GMP shall include a Contingency for
DESIGN-BUILDER's use, with CITY's written approval, to cover those costs
considered reimbursable as a Cost of Work but not included in a Change Order. Any
unspent contingency funds shall revert to the CITY.
D. Schedule Incentives to promote performance results by contractors may be
established by DESIGN-BUILDER for the Construction Phase. During development
of the GMP, DESIGN-BUILDER and CITY may determine an allowance amount,
which will be a part of the GMP, to be used for schedule incentives. Any of these
funds which remain unspent shall be returned to CITY.
ARTICLE 3 — PAYMENT
Payment by CITY to DESIGN-BUILDER is to be made as follows:
A. DESIGN-BUILDER shall submit monthly an Application for Payment for Design
Phase Services describing the work performed during the preceding month.
B. DESIGN-BUILDER shall submit monthly an Application for Payment for
Construction Phase Services describing the Work performed during the preceding
month.
C. The CITY shall make payment to DESIGN-BUILDER pursuant to Paragraph
14.02 of the General Conditions, less 5% retainage, except that no retainage shall
be held on DESIGN-BUILDER's Fee. DESIGN-BUILDER's Fee shall be shown as a
line item in the Application for Payment.
ARTICLE 4 — GUARANTEED MAXIMUM PRICE
A. The Guaranteed Maximum Price proposal for the Project shall be presented to
the CITY simultaneously with the completion of the final Construction Documents
or as otherwise mutually agreed.
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B. Elements to be considered in the GMP include but are not limited to:
1. DESIGN-BUILDER'S Fee
2. Other Costs (overhead, Insurance and Bonding costs, etc.) as may be
presented in the cost proposal
3. Design fees and costs (Open Book)
4. Reimbursable Expenses for Design Services
5. Construction Subcontract Costs (actual contracts) (Open Book)
6. Allowance and Contingency Amounts
C. After submission of the GMP Proposal, DESIGN-BUILDER and CITY shall meet
to discuss and review the Design Documents and the GMP Proposal in an effort
to negotiate a final GMP.
D. When established and accepted by CITY in writing, the GMP shall be
memorialized and incorporated as an amendment to this Agreement.
E. If CITY rejects the GMP proposal, CITY and DESIGN-BUILDER shall meet and
confer as to how the Project may proceed or to affect a termination.
ARTICLE 5 — CHANGES IN THE WORK
The CITY, without invalidating this Agreement, may order changes in the design of the
Project and/or the Work consisting of additions, deletions or other revisions, and, where
necessary, the GMP and the Contract Time shall be adjusted accordingly. All such
changes in the Work necessitating a change to the GMP or the Contract Time shall be
authorized by a Change Order.
ARTICLE 6 - PROJECT TIME AND LIQUIDATED DAMAGES
Project Time shall not be longer than as indicated in Attachment A except as modified
by DESIGN-BUILDER in Attachment B and memorialized in the Project Schedule
when developed by DESIGN-BUILDER and agreed to by CITY. DESIGN-BUILDER will
perform the required services in a timely manner and comply with the Project Schedule
and any minor adjustments as reasonably requested by CITY. Major changes to the
Project Schedule may be negotiated and memorialized by a Change Order. Unless
delayed, as defined in the General Conditions, the DESIGN-BUILDER shall achieve
Final Acceptance of the Work, including all punch list items, within sixty (60) days from
the date of Substantial Completion.
DESIGN-BUILDER recognizes that time is of the essence to this Agreement and that
CITY will suffer financial loss if the Work is not completed within the Project Time, plus
any mutually agreed extension thereof. DESIGN-BUILDER recognizes the delays,
expense, and difficulties involved in proving in a legal proceeding the actual loss
suffered by the CITY if the Work is not completed on time and, instead of requiring any
such proof, DESIGN-BUILDER agrees that Liquidated Damages, not as a penalty but
as just compensation, shall be $650.00 for each day that expires after the expiration of
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the Project Time until such time as Substantial Completion of the entire Project is issued
by the CITY in writing.
ARTICLE 7 — MBE/SBE
The DESIGN-BUILDER must comply with its MBE Utilization Plan submitted in its
response to the RFP and meet an SBE participation goal of 10% for the Design
Services and meet the MBE goal of 15% for the construction phase services of this
Project.
ARTICLE 8 - GENERAL TERMS
A. PROFESSIONAL STANDARDS. The standard of care for all design professional
services performed under this Agreement shall be the care and skill ordinarily used
by members of the architectural and engineering professions practicing under similar
conditions at the same time and locality as the Project. The DESIGN-BUILDER shall
be responsible for the professional and technical soundness, accuracy, and
adequacy of all consultation, cost estimating, design, pre-construction, construction
and other services and materials furnished under this Agreement. Qualified, licensed
design professionals employed by the DESIGN-BUILDER or procured from qualified,
independent licensed design consultants shall prepare the Construction Documents.
This Agreement does not establish or create any legal or contractual obligations
between the CITY and the design professionals employed by the Design-Builder,
and the design professionals shall not be deemed to be a third party beneficiaries
under this Agreement.
B. MUTUAL OBLIGATIONS. DESIGN-BUILDER and CITY agree to fully cooperate
with each other in providing to each other information available, and in facilitating the
Work within the scope of this Agreement. CITY shall, throughout the performance of
the Construction Work, cooperate with DESIGN-BUILDER and perform its
responsibilities, obligations and services in a timely manner so as not to delay or
interfere with DESIGN-BUILDER'S timely and efficient performance of its obligations
under the Contract Documents. The CITY shall cooperate and provide reasonable
assistance to the DESIGN-BUILDER in obtaining the permits, approvals, and
licenses that are DESIGN-BUILDER'S responsibility to obtain.
C. GENERAL CONDITIONS. Attachment C contains the CITY's General
Conditions applicable to this Project. DESIGN-BUILDER is expected to have
reviewed and hereby agrees to comply with said General Conditions, including
providing a copy to any contractors or subcontractors, as applicable.
D. PROJECT PROGRESS. DESIGN-BUILDER's services and compensation under
this Agreement have been agreed to in anticipation of the orderly and continuous
progress of the Project through completion.
E. ASSIGNMENTS. DESIGN-BUILDER shall not assign its interest in this
Agreement without the written consent of the CITY. DESIGN-BUILDER may enter
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into subcontracts with respect to the services required by this Agreement but shall
remain fully responsible to the CITY in connection therewith. Nothing herein shall be
construed as creating any personal liability on the part of any officer or agent of
CITY.
F. PERSONNEL. DESIGN-BUILDER, an Equal Opportunity Employer, (including
any agents, employees, subcontractors, successors and assigns of DESIGN-
BUILDER), now has or will secure at its own expense, personnel required to perform
the services under this Agreement. Such personnel are not employees of, nor have
any contractual relationship with the CITY. DESIGN-BUILDER acknowledges
responsibility for all federal, state, and local requirements for employers that apply to
DESIGN-BUILDER.
G. EXTENT OF AGREEMENT/NO THIRD PARTY RIGHTS. The CITY and
DESIGN-BUILDER agree that this Agreement represents the entire and integrated
Agreement between them and supersedes all prior negotiations, representations or
agreements, either written or oral. This Agreement is solely and exclusively for the
benefit of the CITY and DESIGN-BUILDER and not for the benefit of any third party.
The CITY and DESIGN-BUILDER agree that there are no third-party beneficiaries
and each agrees that the obligations in this Agreement are owed exclusively to the
other party to the Agreement and are not intended to create any rights, contractual
or otherwise, to any other person or entity. The doctrine of respondeat superior shall
not apply.
H. REPRODUCTION, USE AND OWNERSHIP OF WORK PRODUCT. All designs,
drawings, specifications, documents, and other work products of the DESIGN-
BUILDER whether in hard copy or in electronic form, are instruments of service for
this Project, whether the Project is completed or not. Reuse, change, or alteration by
CITY or by others acting through or on behalf of CITY of any such instruments of
service without the written permission of the DESIGN-BUILDER will be at the CITY'S
sole risk. The CITY shall own the final, printed designs, drawings, specifications and
documents. Transfer of ownership of the contract documents does not constitute
sale of the documents.
I. INSURANCE. DESIGN-BUILDER shall, during the performance of the
Agreement, keep in force insurance as described in Article 5 of the General
Conditions.
J. TERMINATION. This Agreement may be terminated as provided for by Article 2,
Section B of this Agreement or as otherwise provided by the General Conditions.
K. COST ESTIMATES. DESIGN-BUILDER's opinions of probable cost are to be
made on the basis of DESIGN-BUILDER's experience and qualifications and
represent DESIGN-BUILDER's best judgment as a qualified professional familiar
with the industry.
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L. INDEMNIFICATION. DESIGN-BUILDER COVENANTS THAT IT HAS READ
AND UNDERSTANDS THE INDEMNITY PROVISIONS FOUND IN THE GENERAL
CONDITIONS.
M. SURETY BONDS. The DESIGN-BUILDER shall furnish the required
performance, payment and maintenance bonds as provided by the General
Conditions.
N. CITY NON-APPROPRIATION OF FUNDS. Notwithstanding any other provisions
of this Agreement, if this Agreement provides for the CITY to make payments to the
DESIGN-BUILDER in any fiscal year following the CITY's fiscal year in which this
Agreement begins and the CITY Council fails to appropriate funds to make the
payments, then this Agreement automatically terminates at the beginning of the first
day of the successive fiscal year for which funds were not appropriated, and the
CITY shall not be obligated to make or have any liability to the DESIGN-BUILDER
for the payments.
O. EXTRA SERVICES. In the event of any legal proceedings or other claims
requiring services of DESIGN-BUILDER in providing expert testimony on behalf of
the CITY in connection with the Project, except suits or claims by a third party
against the CITY arising out of alleged errors or omissions of Engineer or DESIGN-
BUILDER, the CITY shall provide additional compensation to DESIGN-BUILDER
based on actual cost.
ARTICLE 9 — THE CITY'S RESPONSIBILITIES
The CITY shall:
A. Designate a Project Representative to act as its representative with respect to
the services to be rendered under this Agreement. Such Project Representative
will have complete authority to transmit instructions, receive information, interpret
and define CITY's policies and decisions with respect to DESIGN-BUILDER's
services.
B. Provide timely reviews of studies, reports, sketches, estimates, and other
documents presented by DESIGN-BUILDER consistent with CITY'S normal
business practices.
C. Secure and execute all necessary permanent easements and agreements with
adjacent land or property owners that are necessary for the Project. CITY is
further responsible for all costs, including attorneys' fees, incurred in securing
these necessary permanent easements and agreements. CITY is responsible for
securing all zoning approvals required for the Project for the construction to
proceed without delay.
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ARTICLE 10 — AMENDMENTS
This Agreement may only be amended in writing and agreed to by both Parties.
ARTICLE 11 - EXTENT OF AGREEMENT
This Agreement represents the entire and integrated agreement between the CITY and
DESIGN-BUILDER with respect to the subject matter of this Agreement and supersedes
all prior understandings, negotiations, representations or agreements, either written or
oral contracts between CITY and DESIGN-BUILDER respecting this Project. This
Agreement will be binding upon and inure to the benefit of CITY and DESIGN-BUILDER
and their respective successors and assigns.
ARTICLE 12 — GOVERNING LAW & JURISDICTION
Except as provided for in the General Conditions, Paragraph 6.07, arbitration will not be
allowed on this Project. The terms of the Agreement shall be construed and interpreted
under, and all respective rights and duties of the parties shall be governed by, the laws
of the State of Texas, without regard to its conflict of law provisions. DESIGN-BUILDER
hereby submits to the jurisdiction of the Texas courts and will obtain and maintain an
agent for service of process in the State of Texas. Neither party will bring any action
against the other party arising out of or relating to this Agreement in any forum or venue
except in Tarrant County, Texas, or the United States District Court for the Northern
District of Texas, Fort Worth Division. DESIGN-BUILDER irrevocably waives any
present or future objections to such legal action and irrevocably waives the right to bring
any legal action in any other jurisdiction.
ARTICLE 13 — SEVERABILITY
It is agreed that in the event any covenant, condition or provision herein contained is
held to be invalid by any court of competent jurisdiction, the invalidity of such covenant,
condition or provision shall in no way affect any other covenant, condition or provision
herein contained, provided however, that the invalidity of any such covenant, condition
or provision does not materially prejudice either DESIGN-BUILDER or CITY in
connection with the rights and obligations contained in the valid covenants, conditions
or provisions of this agreement.
ARTICLE 14—WAIVER.
The waiver by the CITY of any default or breach of a term, covenant or condition of this
Agreement shall not be deemed to be a waiver of any other breach of that term,
covenant or condition or any other term, covenant or condition of this Agreement,
regardless of when the breach occurred.
ARTICLE 15— CONFLICT IN TERMS.
PARD—Chisholm Trail Park Phase Two Development Page 8 of 14
In the event there is a conflict between the terms of this Agreement, and any other
Contract Document, the terms of this Agreement shall control over the other Contract
Documents.
ARTICLE 16 - HEADINGS.
The headings in this Agreement are inserted for reference only, and shall not define or
limit the provisions hereof.
ARTICLE 17 - NOTICE.
All notices required herein shall be addressed to CITY as follows:
Richard Zavala
Director, Park & Recreation Department
4200 S. Freeway, Ste. 2200
Fort Worth, Texas 76115
817-392-5711
richard.zavala@fortworthtexas.gov
With Copy to:
Carlos Gonzalez
Park & Recreation Department
4200 S. Freeway, Ste. 2200
Fort Worth, TX 76115
817-392-5734
carlos.gonzalez@fortworthtexas.gov
Douglas W Black
Sr. Assistant City Attorney
200 Texas Street
Fort Worth, TX 76102
817-392-7615
doug.black@fortworthtexas.gov
All notices to DESIGN-BUILDER shall be addressed as follows:
Larry Frazier
President
The Fain Group, Inc.
P.O. Box 750
Fort Worth, TX 76101
817-927-4388
Ifrazier@faingp.com
PARD—Chisholm Trail Park Phase Two Development Page 9 of 14
ARTICLE 18— PROHIBITION ON CONTRACTS WITH COMPANIES BOYCOTTING ISRAEL
CMAR, unless a sole proprietor, acknowledges that in accordance with Chapter 2270 of the
Texas Government Code, if CMAR has 10 or more full time-employees and the contract
value is $100,000 or more, the City is prohibited from entering into a contract with a
company for goods or services unless the contract contains a written verification from the
company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of
the contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to
those terms in Section 808.001 of the Texas Government Code. By signing this contract,
CMAR certifies that CMAR's representative's signature provides written verification to
the City that if Chapter 2270, Texas Government Code applies, CMAR: (1) does not
boycott Israel; and (2) will not boycott Israel during the term of the contract.
ARTICLE 19— IMMIGRATION NATIONALITY ACT
CMAR shall verify the identity and employment eligibility of its employees who perform work
under this Agreement, including completing the Employment Eligibility Verification Form (I-
9). Upon request by City, CMAR shall provide City with copies of all 1-9 forms and
supporting eligibility documentation for each employee who performs work under this
Agreement. CMAR shall adhere to all Federal and State laws as well as establish
appropriate procedures and controls so that no services will be performed by any CMAR
employee who is not legally eligible to perform such services. CMAR SHALL INDEMNIFY
CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR LOSSES
DUE TO VIOLATIONS OF THIS PARAGRAPH BY CMAR, CMAR's EMPLOYEES,
SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice to CMAR, shall
have the right to immediately terminate this Agreement for violations of this provision by
CMAR.
ARTICLE 19—AUTHORITY TO SIGN
CMAR shall attach evidence of authority to sign Agreement if signed by someone other than
the duly authorized signatory of the CMAR.
REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK. SIGNATURE PAGE
AND ATTACHMENTS/EXHIBITS TO FOLLOW
PARD—Chisholm Trail Park Phase Two Development Page 10 of 14
ACCORDINGLY, City and Design-Builder have each executed this Agreement to be effective as
of the date subscribed by the City's designated Assistant City Manager("Effective Date").
DESIGN-BUILDER CITY OF FORT WORTH:
The Fain Group, Inc. * ��
By: Lai razier(Apr 16,2020) By;le S&C 1oMCog a(Apr 17,2020)
Name: Larry Frazier Fernando Costa
Title: President Assistant City Manager
Date: Apr 16, 2020 Date: Apr 17,2020
By CITY:
Approved as to Form and Legality Approval Recommended:
sy��j.e�aro yUVILf l�rG�%l�
Mack(Apr 17,2020) David Creek(Apr 17,2020)
Douglas W. Black Richard Zavala
Sr. Assistant City Attorney Director, Park & Recreation
Department
�0 r ,f
M&C: 20-0140 ATTEST: ,` «
Date: 03/03/20 _ c,/�i� U -
4if) 1aq 5: a01`t-5-71119-7 Mary J. Kayser
City Secretary
Contract Compliance Manager:
By signing, I acknowledge that I am the
person responsible for the monitoring and
administration of this contract, including
ensuring all performance and reporting
requirements.
Fy
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Carlos M Gonzalez
Park Planner
Park & Recreation Department
w; EagpVj
RECORD
JM AT CRETARY
PARD—Chisholm Trail Park Phase Two Development }tTFIr TX
ATTACHMENT A
Pre-Construction and Construction Services
Scope of Work
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ATTACHMENT B
DESIGN-BUILDER's Written Proposal
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ATTACHMENT C
Standard General Conditions for a Design-Build Agreement
PARD—Chisholm Trail Park Phase Two Development Page 14 of 14
ATTACHMENT A
Pre-Construction and Construction Services
Scope of Work
I. Project Site Information
The Chisholm Trail Park was acquired in 1998 and is approximately 80 acres of land located
in Southwest Fort Worth. Half of the park site was develop back in 2015 with 2014 Capital
Improvements Program funding and a portion of the park represents a native Fort Worth
Prairie which has been defined as a unique ecosystem of tallgrass prairie, limestone seeps,
shortgrass prairie barrens, creeks, and wetlands.The park site is bordered by single family
residential to the west, North Crowley High School to the east and McPherson Boulevard to the
south. Willow Branch Way is a creek corridor that is along the western edge of the park.
In the Southwest portion of the park property sits one of Fort Worth's community centers,
Chisholm Trail Community Center, which is a premiere multi-purpose fitness and activity center
located in Southwest Fort Worth, close to the City of Crowley,Texas.The center offers a variety
of exercise classes, athletic programs, and amenities that include a rock climbing wall and 2,877
square feet of strength equipment and free weights, a full size gym, a children's garden, a
dance room and meeting rooms.The City began construction on the community center in April
2012 to serve growing communities in southwest Fort Worth. The Community Center opened
for public use in March 2014. The Community Center project was funded by the 2004 capital
improvements program and a grant from Texas Parks and Wildlife Department.
II. Scope of Work
Design and construction of Chisholm Trail Park Phase Two Development to include the
following site improvements:
A.) Site Infrastructure Elements Approximate Quantity
1. Concrete Roadway (Southwest Ent.) 1,800 LF
2. Roadway Crossing/Drainage/Bridge 1 feature
3. Water Utilities modify from existing site service
4. Electrical Service modify from existing site service
5. Parking lot 1 (at North Entrance) 64 +3 HC spaces
6. Security Lighting at parking lot
7. Skate Park Lighting at existing & new facility
B.) Recreation Elements Approximate Quantity
1. Walking Trail (8' wide concrete) 2,200 LF
2. Low Water Crossing Bridge (N. Trail) One (1)
Design-Build— PARD—Chisholm Trail Park Phase Two Page A-1 of A-2
3. Soccer Fields(330'x210') Two (2) (irrigated)
4. Skate Park (Extension) One (1) concrete, ramps,fencing
5. Playground (North Entrance) One (1)
6. Pavilion (24'x24') One (1)
7. Pavilion (75'x30') Two (2)
8. Pier Platforms at Pond One (1)
9. Drinking Fountain One (1)
10. Tree Planting in Parking Lot per code
III. Additional Project Improvement Items
The design and construction of Chisholm Trail Park Phase Two Development to take into
account the following additional items:
1.) It is the intent of the Owner that all site improvement items listed above under A& B
are to be accomplished within the prescribed budget and scope of work.
2.) All quantities of all site improvement items listed above under A& B are based on the
2014 master plan estimates and are subject to change as project proceeds into
design/build process and construction.
3.)The Owner shall provide or contract for, independently of the Design-Build Firm,the
following services as necessary for the acceptance of the project:
a. Inspection services
b. Construction materials engineering and testing
4.) Standard park signage will be provided byOwner.
5.)There are no sanitary sewer improvements projected for this scope of work.
All improvements must adhere to Americans with Disabilities Act (ADA) accessibility standards.
Further,all design and construction is to be done in accordance with City of Fort Worth
Transportation and PublicWorks standards, City of Fort Worth Park& Recreation Department
standards.
Other requirements shall include, but not be limited to:
• Texas Accessibility Standards review and inspections
• City of Fort Worth Public Works Department Storm Water Management
requirements
• North Central Texas Council of Governments (NCTCOG) CFW Integrated Stormwater
Management(iSWM) requirements
• Meeting all applicable codes and regulations
• Acquire all necessary permits
• Provide all required bonds and insurance
Design-Build— PARD—Chisholm Trail Park Phase Two Page A-2 of A-2
r
ATTACHMENT B
FAIN '
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Deiign Group
IY►�
Ill.
Technical Proposal Submittal
Chisholm Trail Community Park
Phase II Development
City of Fort Worth Park&Recreation Department
I
w
November 22, 2019 0 ,
■ � FLI N N
Design Group
Carlos Gonzalez FAIN
Park Planner
City of Fort Worth
Parks & Recreation Department
4200 South Freeway,Suite 2200
Fort Worth,Texas 76115
RE: REQUEST FOR PROPOSAL FROM SHORTLISTED DESIGN-BUILD FIRMS FOR CHISHOLM TRAIL
COMMUNITY PARK PHASE TWO DEVELOPMENT FOR THE CITY OF FORT WORTH PARKS AND
COMMUNITY SERVICES DEPARTMENT.
DearSelection Committee,
Thank you for allowing The Fain Group and O'Flinn Design Group to present The Technical Proposal for
Phase Two Development of Chisholm Trail Community Park.
Our experience in park and athletic field projects were given us an appreciation of the city's goals
for their facilities. The Fain Group & Larry O'Flinn was the designer & contractor for Phase I of the
Chisholm Trail project, which was a resounding success. We have assembled the same designer,
contractor, and skatepark designer for this phase of the project, as well. Our assembled team of
park facility experts are excited to work with City staff, leaders, and stakeholders in a recreation
destination in adding to this recreation destination in the City of Fort Worth.
We look forward to an opportunity to work with the City of Fort Worth on this project!
Sincerely,
Larry Frazier
The Fain Group
2S00 Great Southwest Pkwy
Fort Worth,TX 76106
817.927.4388p
817.927.4389f
Ifrazier@faingo.com
www.faingo.com
TABLE OF CONTENTS
• PROJECT APPROACH 1
• ANTICIPATED PROBLEMS 2
• PROPOSED SOLUTIONS TO ANTICIPATED PROBLEMS 3
• ABILITY TO MEET PROJECT SCHEDULE 4
• CONCEPTUAL ENGINEERING DESIGN 8
• M/SBE PARTICIPATION 11
• APPENDIX
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PROJECT APPROACH
The largest benefit of the design-build process is the time savings;
we have assembled the same members we utilized in the first
phase of the Chisolm Trail Park so that we can save month's worth
of time by reducing the time for advertisement, bidding, and O!FL I N N
council award of the project.The Fain Group and the O'Flinn Design Group
Design Group, along with SPA's knowledge will result in
constructing a faster design method to deliver the Chisholm Trail
Community Park Phase Two. Fain is also based in Fort Worth and is acutely aware of the workings
within the City and can address issues during the design process faster than any other firm.
Excellent Quality Engineering is an aspect of this project that will become crucial during the design
process. Fain and O'Flinn have collaborated on numerous projects together to keep projects under
a cost restriction. These two firms have worked on a variety of cost analysis budgets jointlyto
provide the Owner with the most cost-
' . effective approach to their projects.
Larry O'Flinn has been involved with
the master plan for the Chisholm Trail
Community Park and the City's overall
master plan for the past several years
and understands the needs and wants
of the City of Fort Worth's Park and
' Recreation Department. The end
results of his designs have given many
communities in Fort Worth,a park that
can be used for generations and have a
complete plan for Chisholm Trail in
mind. We understand the future expansion that will occur in this park and want to provide the
second phase of this project so that it can be expanded and improved in the years to come.
Spa Skate Parks is our design-to-build contractor for the skate park portion of the work and has
demonstrated the ability to provide extremely functional and effective skate parks. o
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During the first phase, as well as in countless projects across the state, the firms involved, Fain, o
O'Flinn Design, and Spa, are all committed to delivering a quality project that we can call our own. o
We want the satisfaction that at the end of each of our projects,we have delivered something that
not only the Owner is proud of but something that each of us is proud to say that we were involved
in. We each have quality measures in place to ensure the product is a quality product. That starts
with the people we assign to each project. They ultimately regulate the outcome of each project,
and each of our firms is committed to using o
our best personnel to ensure Chisholm Trail c�
Phase Two becomes an outstanding project. �P;k SKATE PARKS
ANTICIPATED PROBLEMS
One of the few issues that may occur during this project is the plan review process. This is one
area that The Fain Group, Inc.will not have direct control over and is therefore prone to being
unproductive. This process can fluctuate when it comes to each individual project and can
sometimes lend to lengthy evaluations, which could hamper the delivery time of the project for
completion.
Another issue that may be a factor is thatthe design-build process is still somewhat new forthis type
of project through the City of Fort Worth. The newness of this delivery system may lend itself to
longerthan anticipated times for review and approval of designs and the guaranteed maximum price.
Budget conditions are another area that might present an issue and generally can be a boon for a
project.Most budgets are set before a project begins which is the case for this project. Countless times
more funding has been found during the course of a project that will be used to add large features
and/or scope to the project.These mid-stream additions always add time to the completion of the
project.
The Fain Group, O'Flinn Design, and SPA are well prepared for these types of challenges and have
extensive experience designing and buildingcast in place concrete skateparks over existing concrete
foundations/slabs, contaminated sites, high water tables,flood plains and the'fat clay on limestone'
conditions noted in the existing geotechnical reports and often found throughout the DFW area.
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PROPOSED SOLUTIONS TO
ANTICIPATED PROBLEMS
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The Fain Group and O'Flinn Design Group have a solution to how the design review process
can be mitigated by delivering plans to the City for review early in the process to obtain any
comments and address those issues before the final design set is complete. This along with the
incentive that this is a city-led project can lead to an acceptable plan review time process. We
have allotted for our anticipated review time in our attached schedule.
Once the GMP is established, it should put the project on a similar schedule to all other delivery
methods. The design process,as well asthe construction process,will be considerably shortened due to
the design-build process. The design and value engineering aspects,coupled with the exclusion of the
advertisement and normal bid process,should greatly benefit the overall time of completion of the Q
project by approximately 90 days. o
An additional funding source is a good problem to have.The only way to mitigate this issue is to actively
seek out additional funding prior to design.Should additional funding be found during construction,we o
would have to manage around this issue. While we will try to manage the schedule to accomidate the
additional scope of work, it would be better to add additional attractions for the citizens of Fort Worth to 0
enjoy,then to hold fast to a posted schedule. _0
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CHISHOLM TRAIL SKATEPARK PHASE 2 - DESIGN BUILD TIMELINE
Project Phase/Task Timeline
SITE ANALYSIS:Start-Up Meeting/Site& Program Review: Week 1
Our Design Team will meet with the City Staff and the consulting team to thoroughly to
review the site area, development program, work plan, and project schedule. Together Week
we will establish the lines of communication as well as review and confirm the overall
project goals and objectives. Our Design Team will review all the base data supplied by
the City (aerial photos, topographic survey, and geotechnical soils information) as well
as other pertinent data related to site grading, servicing,existing vegetation, current,and
future proposed site development initiatives, etc. This information will serve as the
foundation of all project design work.
SITE ANALYSIS:Create Base Maps&Site Analysis Drawings: Week 3
Once all required base data has been collected and reviewed, our Design Team will to
complete an analysis of site and program to best understand the overall approach to site Week 4
and facility design, budget planning, staged construction implementation, etc. This is
critical to ensure that project design development adheres to an accurate, site-specific
data set, and the project does not encounter unexpected or unforeseen site
development conditions later in the detailed design phase or during facility construction.
CONCEPT DESIGN:Develop Design Concepts: Week 4
Our Design Team will synthesize information from the project start-up meeting to to
develop the concept design direction and overall approach to site planning, site Week 6
engineering, etc. We will prepare designs for all aspects of the site area and landscape
amenities, integrated as one unified design concept.
CONCEPT DESIGN.Presentation of Preliminary Concept Design: Week 6
Comprehensive plan view, section view, and digital 3-D design renderings, along with a
class "C" cost estimate and design brief will be presented to the City Staff and the
consulting team for review and comment. The Preliminary Concept Design review will
provide an opportunity for interactive and constructive design review and an additional Q
opportunity for all project team members to contribute their ideas and feedback. o
CONCEPT DESIGN:Design Development: Week 6
Comments and suggestions gained from the Preliminary Concept Design Presentation to 0
and preliminary design/budget review with the City's project manager and consulting Week 9
team will be prioritized for implementation, and work will begin on the Refined Concept o
Design. We will update our plans so that the concept design solution is optimized, and
technical drawings can proceed to reflect the approved project scope. 3
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CHISHOLM TRAIL SKATEPARK PHASE Z - DESIGN BUILD TIMELINE
CONCEPT DESIGN:Final Concept Design Presentation : Week 9
The completed Final Concept Design will be presented back to the City and the consulting
team for review, feedback, and any final adjustments. Any necessary changes will be
made in our plans in preparation forthe development of advanced construction drawings
and specifications. Our Design Team will provide the Final Concept Design (and budget
breakdown)to the City's project manager for approval to proceed.
CONSTRUCTION DOCUMENTATION:Begin Construction Drawings: Construction
Our technical design team will prepare all engineered construction drawings and Documentatio
specifications for the project. We anticipate a 2-4 week timeframe to submit 80% n would
complete drawings for review with the owner's representatives. initiate only
upon
authorization
from the
owner to
proceed.
CONSTRUCTION DOCUMENTATION:Construction Drawings Review: Week 10
Our technical design team will submit an 80% progress review set of Construction to
Documents to the City, the consulting team, and other approval bodies for full redline Week 12
review, comments, questions, and approvals.
CONSTRUCTION DOCUMENTATION:Deliver Final Drawings: Week 12
Review comments and final budget cost breakdown will be incorporated into a final to
construction drawing and specification package to be Issued and Approved for Week 15
construction. Any changes directed during project construction can be addressed via
Change Order and 'as-built' drawings.
SKATEPARK CONSTRUCTION:Construction Mobilization: Construction
Our design/build team will meet with the owner, general contractor, and overlapping would initiate
subcontractors to review the priorities for park construction and will plan out a detailed only upon Q
schedule for completion of key milestones within each phase of construction. authorization o
from the T
owner to
proceed.
SKATEPARK CONSTRUCTION:layout&Site Preparation : Week 1 0
The construction team will erect construction safety fencing, tree protection fencing, to
layout all design grades,strip the site,remove existing sod,trees, (where applicable),etc. Week 3
to prepare the site base, grading, and drainage.
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CHISHOLM TRAIL SKATEPARK PHASE 2 - DESIGN BUILD TIMELINE
SKATEPARK CONSTRUCTION:Grading& Drainage: Week 3
The construction team will proceed with the earthworks, base preparation, and cut/fill to
program to establish site grades. Utility servicing (where applicable) will be installed or Week 6
roughed in at this time.
SKATEPARK CONSTRUCTION:Fine Shaping/Banks& Transitions: Week 6
Once the rough grades are established, we will proceed with the fine shaping of the park to
elements. The park construction team will assess the weather forecast, and if the Week 11
forecast is favorable, we will proceed with installing the banks and transitions. All banks
and transitions are poured in small, controlled panels to ensure proper shaping and
finishing.
SKATEPARK CONSTRUCTION: Flat Slabs: Week 11
Once all banks and panels are complete,the construction team will prepare, form, and to
pour the base slabs.These sections will require favorable weather as they are larger Week 14
pours. Site security becomes critical to protect the site.
SKATEPARK CONSTRUCTION:Ledges& Keystone Features: Week 14
Upon completing the banks, transitions, and flat slabs, the construction team will to
proceed with forming and pouring ledge wall and keystone features (i.e., those wall and Week 17
feature elements which bear upon thickened slab sections).
SKATEPARK CONSTRUCTION: Clean Up&Demobilization : Week 17
Upon completion of all concrete work,the construction team will remove all scrap to
wood and construction debris, clearing the site to grade surrounding berms and rough Week 18
grade all landscaped areas.
SKATEPARK CONSTRUCTION:Facility Grand Opening: Week 18
At SPA Skateparks, we also take pride in participating in the skatepark opening
ceremony and dedication events by helping organize professional skateboarding talent
and prizes for the community.
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Conceptual Engineering Design
Chisholm Trail Community Park 2
Southern Zone (Refer to the South Concept Exhibit in the Appendix)
Skate Park—The Phase 1 development of the Skate Park has been a great success for Fort Worth. It is
the only City provided skate park in the community and has been very popular. As a natural extension
to Phase 1,the City desires to complete the Skate Park Master Plan with the Phase 2 construction.
These additions will provide for an even greater use capacity and will set the standard for future Fort
Worth skate facilities. The construction of Phase 2 will follow the Master Plan and reflect the same or
similar materials used in Phase 1.
Security Lighting— In approaching the lighting of the Skate Parkfor safe night use, we reviewed
national standards,including the IES(Illuminating Engineering Society) for light levels and
uniformity. The IES standards for "recreation" level skate parks are to have a maintained
footcandle (FC) level of 15 with a maximum to minimum uniformity ratio of 3:1. For facilities
expected to have spectator events,the recommended level is 30-foot candles. As our skate
park is to be used primarily for recreational use, we recommend the 15fc level. Reviewing light
fixture types, we looked at using the same fixture and pole as used in the parking lots; however,
this fixture is not as efficient as we would like for the Skate park use. In keeping with the
existing parking lot light fixture look, we considered two options. Option 1 would be LED cut-off
fixtures mounted on 25' poles,the same height, and color as the parking lot lights. Option 2
would have LED floods on 40 poles with adjustments at potentially slightly above horizontal.
Option 2 would allow for fewer, but more powerful fixtures. Understanding that we need to be
sensitive to potential light spillage, especially south toward the Bluestem neighborhood, we
believe that the ether option can have light control cut off at the park property line. We will
review these options with PARD to determine the best lighting solution for the park. (Refer to
the Appendix for conceptual lighting layouts)
Parking Lot Lighting— In Phase 1, since the Skate Park was not lighted, the parking lot was only
lit to a "security" level with parking lot light fixtures placed at key locations, like the entry to the
Skate Park and the entry to the Playground area. With the lighting of the Skate Park in Phase 2,
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which will encourage nighttime use,the City may wish to upgrade the lighting in the parking lot =
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adjacent to the Skate Park to the same levels that are present in the community center parking 0
lot. We will work with PARD to determine the best approach for parking lot lighting in this
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Conceptual Engineering Design
Soccer Practice Fields—We understand that the City would like to build 2 Soccer Practice Fields in the
location of permanent league fields west of the existing soccer fields. The primary challenge for
developing these fields is the earthwork. In the early stages of the design, we propose to conduct field
test pits with a backhoe in the eastern part of the proposed fields to more fully understand the nature
of the subsoil, including the depths to weathered and hard limestone. The natural grade of the field
area slopes from the southeast corner to the north and west so that the primary cuts will be in the
southeast and east parts of the fields. Considering this natural grade and the best way to lay the fields
into an on the natural slope, we would recommend sloping the fields consistently from the east edge
to the west edge. This consistent cross slope method is used quite often in soccer fields. In Phase 1,
we used the crowned grade configuration as it suited the natural grade better, and the PARD Athletic
group preferred that style. Please refer to the conceptual cross-section and plan view in the Appendix
to see the difference in grading and soil placement between the two grading approaches. It may be
noted,as well,that even constructing the Soccer Practice Fields with a consistent cross slope now,
would not necessarily preclude crowning of the fields at the time they are upgraded to league fields.
Large Pavilion—Per the Master Plan, a second twin Large Pavilion is planned for the area west of the
existing pavilion and northwest of the playground. This Large Pavilion would be the same size
(40'x40'), style, and color as the existing pavilion with similar furnishings. A new 8' walk will be
constructed to connect the existing parking to the new Large Pavilion. We propose a small parking
node similar to Phase 1, which would act as a receiving landing for the four walks that will intersect
with the parking at that point. This node would have a special concrete treatment like the ones in
Phase 1. With the proposed grading, the Large Pavilion would rest at approximately 821
elevations, providing a gentle walk from the parking lot and to the proposed practice fields.
Small Pavilion—The proposed Small Pavilion (24'x24') will be located along the lower creek trail
directly opposite the proposed Fishing Pier. This pavilion will be the same size, style, and color as the
existing small pavilion with similar furnishings.
Fishing Pier — Per the Master Plan, the proposed Fishing Pier at the pond will be located on the point
approximately 250 feet south of the existing pier. We anticipate the new Fishing Pier to be like the
existing one. Considering access, the existing trail was built with a small circular "turn-around" at the
end. We expect to remove the turn-around, build the new pier bulkhead and connect the existing trail o
to the bulkhead with the new trail.
Trails & Low Water Crossing - New trails will be constructed to connect the existing parking lot at the o
playground with the new Large Pavilion, connect the new Small Pavilion to the existing trail, and for the
new East-West Trail along the east-west drainage way north of the proposed Practice Soccer Fields. LL
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Low Water Crossing—The proposed Low Water Crossing on the new East-West Trail will cross
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the drainage way in a location similar that shown on the Master Plan. Based on the preliminary o
grading study, it looks like a Low Water Crossing will work with the existing grades so that 0
longitudinal trail slopes will not be greater than 5%with the crossing being 30" or less above the
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flowline of the swale. We expect the new Low Water Crossing to be a small "bridge" structure
similar to the crossings recently used at Harmon Field Park and Foster Park.
Conceptual Engineering Design
Northern Zone (Refer to the North Concept Exhibits A& B in the Appendix)
Parking Lot—The proposed concrete parking lot for the North area will be comprised of approximately
65 standard spaces and 3 accessible spaces. We propose a slight modification to the parking shown on
the Master Plan. The proposed plan would have a circular parking area with spaces on both sides of
the parking drive. We believe this layout would provide more spaces closer to the park elements to be
used by visitors. Proposed is a Pedestrian Plaza similar to the Playground Pedestrian Plaza in Phase 1.
The introduction of this element will facilitate access to trails and relates the special paving theme of
Phase 1 to Phase 2.
Playground—We are providing two conceptual studies for the location and design of the Playground:
North Concept A—The Playground is shown in a similar location to that shown in the Master
Plan and RFP. The existing trail has a longitudinal slope of 1.5—2%from northwest to
southeast. Since the Playground, ideally, wants to be level,we have created a new loop trail
that will be level adjacent to the Playground. The Playground is the same shape and size as the
one in Phase 1 and sits in the slope in the area created by the existing trail bend. The new Trail
loop provides a connection from the parking, to the Playground and from the Playground to the
Large Pavilion.
North Concept B—The Playground is placed in a more direct relationship to the Large Pavilion
on the slope approximately 3.5' below it. The relationship between the two park elements is
strong, and the area dedicated to them is placed more gracefully into the existing slope. There
is a new loop trail that provides a connection from the parking to the Pavilion and Playground
area.
Large Pavilion —We are providing two conceptual studies for the location and design of the Large
Pavilion:
North Concept A—The Large Pavilion is shown in a similar location to that shown in the Master
Plan and RFP. The existing trails create an area for the Pavilion just east of the parking lot. The
Large Pavilion is proposed to be the same as the Phase 1 large pavilion (40'x40') and the
proposed new Large Pavilion on the south side. This pavilion rests nicely between the parking
lot and the trails; however due to the existing grades, the most natural connections are to the
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existing trail on the northeast and to the parking lot. Depending on the actual grades in the o
field, there may need to be a small retaining wall at the south edge of the pavilion pad. This
can be a nice feature that gives a sense of overlook the creek to the south.
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Conceptual Engineering Design
North Concept B—The Large Pavilion is placed in a more direct relationship to the Playground
on the slope approximately 3.5' above it. The placement of the Pavilion and Playground are
such that they become focal elements for trail users going north across the pedestrian bridge.
This Large Pavilion is rectilinear in shape at approximately 30'x60'. Note that the covered area
in the 40'x40' pavilions is 1,600 square feet, and the covered area of the 30'x60' pavilion will be
similar at 1,800 square feet. The furniture would be similar to the furniture in the 40'x40'
pavilions. The RFP states that the pavilion should be 30'x75'. The location and configuration of
the pavilion in Concept B can easily accommodate either size pavilion. The relationship
between the two park elements is strong, and the area dedicated to them is placed more
gracefully into the existing slope. There is a new loop trail that provides a connection from the
parking to the Pavilion and Playground area.
Trails—The proposed Trails in the North area are minimal and are related to providing pedestrian
connections to the various park elements, as described previously.
Security Lighting—At a minimum, the PARD standard solar powered security light fixture will be
provided near the new Playground. If funding allows,we will work with PARD to consider parking and
security lighting similar to Phase 1. (see North Concept Lighting exhibit inf the Appendix)
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M/SBE PARTICIPATION
Design—SBE Plan— For the design portion of the project,we will use the following 1 SBE firm and 1
non-SBE firm. These firms will provide specific services and will comprise a total of 30%of the design
fee. Following is a detailed list of the proposed firms and their roles on the project.
Firm: Baird, Hampton & Brown, Inc.
Role: Site Survey
Easement Removal
Site Design and Layout (CAD plan production)
Civil Engineering
Structural Engineering
Electrical Engineering
Address: 6300 Ridglea Place
Suite 700
Fort Worth,Texas 76116
817-338-1277
Point of Contact: Tom Kellogg, RLA
tkellogg@bhbinc.com
817-251-8550x310
Design Role(description of work):
Site Survey—Provide topographic survey including locations of key existing facilities, natural ground
lines, specific site features that will impact the Phase 2 work. Create a base survey file to be used in
the construction document process.
Easement Removal—Conduct on-site surveys as needed to identify the pertinent point, property
corners and other data needed to prepare the easement removal documents. Prepare the easement
removal documents.
Site Design and Layout—Assist prime consultant in the preparation of CAD base drawings, respond to
comments. Prepare final construction document CAD drawings.
Civil Engineering—Provide any required civil engineering design such as quality reviews,erosion
control drawings, etc.
Structural Engineering—Provide structural engineering for park elements. o
Electrical Engineering—Provide electrical engineering for Skate Park lighting and any necessary design
modifications to the electrical service equipment. LID
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Percent of Total Design Cost: 29.5% O
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M /SBE PARTICIPATION
Firm: Accessibility and Health & Safety Consulting (AHSC)
Role: Accessibility Review and Inspection
Address: 5435 Garland Avenue
Suite 140-121
Garland,Texas 75040
214-497-0926
Point of Contact: Dean Shinault
dshinault@ahsc.us
214-497-0926
Design Role (description of work):
Accessibility Review—Provide Registered Accessibility Specialist (RAS) services including registering
the project with TDLR, review of the preliminary plans, review of the final construction documents, and
inspection of the finished constructed facilities for compliance with the Texas Accessibility Standards
(TAS) and the Americans with Disabilities Act (ADA).
Approximate Sub-contract Value: $900
Percent of Total Design Cost: 0.S%
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M /SBE PARTICIPATION
Construction:
The following steps are what our team will take to ensure we achieve the 15% MBE
requirements for the construction phase of the Chisholm Trail Community Park Project Phase
Two.
A. We will utilize the same format for MBE participation,as is set forth by the guidelines
from the City of Fort Worth. We will obtain a current list of proposed subcontractors
for these identified scopes of work.
■ Excavation
■ Landscaping/Irrigation
■ Erosion Control
■ Electrical
■ Concrete
B. We will advertise and solicit bids for each of the above areas of work prior to the bid
opening through 2 forms of contact at least ten days prior to the bid opening
■ Fax
■ Email
C. Contracts will be issued to 111 or 2"d tier firms to achieve the 15%goal.
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Attachment B
CHISHOLM TRAIL PHASE 2 )ESIGN BUILD TIMELINE
Project Task Timeline
DESIGN ANALYSIS:Program Review of Design Elements 21 Days
Our design team will conduct a review of the design elements that will be incorporated into the
park, and obtain feedback for those individual design elements.
CONCEPT DESIGN:Develop Design Concepts: 14 Days
Our Design Team will synthesize information from the project start-up meeting to develop the
concept design direction and overall approach to site planning,site engineering, etc.We will
prepare designs for all aspects of the site area and landscape amenities, integrated as one
unified design concept.
SITE SURVEY:Topographical Survey 18 Days
The Design Team will conduct an on-the-ground topographic survey of limited areas that relate
to Phase 2. The survey will focus on collecting data as needed to provide an accurate map of
the existing conditions including trails, edges of soccer fields, drainage swales, edges of skate
park, edges of grading done in Phase 1,etc. We will compile the survey information with the
survey file from Phase 1 and create a base survey to used for the Phase 2 design.
GEOTECHNICAL INVESTIGATIONS:Soil Test Pits 7 Days
The Team will soil depth test pits at key locations including the proposed soccer field areas to
determine potential dept to difficult to excavate materials.
BASE MAP PREPARATION:Topographical Map 22 Days
After receiving any requested data from the City and conducting the topographic survey, The
Design Team will create a Phase 2 base map for use in the design.
PRELIMINARY DESIGN:Design Concept 11 Days
Based upon the approved project program,the Design Team will prepare a Preliminary Design
Concept Plan for the proposed park improvements. The Plan will be based upon the City's
listed program items and construction budgets. a
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The Design Team will attend one(1) meeting with City representatives to review the
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Preliminary Design Concept Plan and Preliminary Budget Estimate. The purpose of the meeting Ln
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will be to confirm the overall design and obtain City approval before proceeding into the Design
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The Preliminary Concept Design review will provide an opportunity for interactive and M
constructive design review, and an opportunity for all project team members to contribute o
their ideas and feedback.
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CITY REVIEW&MEETING: City Design Review 5 Days a,
CHISHOLM TRAIL PHASE 2 - DESIGN BUILD TIMELINE
City Design Review
DESIGN DEVELOPMENT. Process Design 30 Days
Comments and suggestions gained from the Preliminary Design Concept Plan and the
preliminary design budget review, and based on approval from the City,the Design Team will
prepare Design Development drawings for the proposed park improvements. The Design
Development drawings will be prepared at an approximate 50% level of completion of
Construction Documents. The Design Team will submit the Design Development drawings and
Table of Contents for the technical specifications to the City for review and approval.
The Design Team will attend one(1) meeting with City representatives to review the Design
Development submittal. The City will provide, in writing to the Design Team, all review
comments for the Design Development submittal. The Design Team will obtain these
comments and approval from the City prior to proceeding into the Final Construction
Documents phase.
PLAN REVIEW: City Review of Design Documents 14 Days
Time allotted for Parks staff to review the design and adjust any elements to the design
VALUE ENGINEERING: Value Engineering and PACS Presentation 14 Days
The design-build team will go through a value engineering process to determine if there are any
cost saving items that might be put in place to aid the budget if needed.
GMP ESTABLISHMENT: 18 Days
We will establish the GMP at this point based upon the approved design elements
PERMIT PROCESSING:City Permit Approval 30 Days
Allow for the permit approval from the City of Fort Worth.
PARK CONSTRUCTION: Site Construction 180 Days
The team will be constructing the other design elements of the project that might include a
parking lot expansions, playgrounds, soccer fields and other amenities. o
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SKATEPARK CONSTRUCTION:Construction 170 Days SP
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The construction team will proceed with the earthworks, base preparation, and cut/fill program o
to establish site grades through the concrete construction and amenity installation.
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TOTAL DESIGN BUILD PROJECT COMPLETION TIME. 511
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Cost Proposal Submittal
Chisholm Trail Community Park
Phase II Development
City of Fort Worth Park&Recreation Department
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ATTACHMENTS AND EXHIBITS
PROJECT BUDGET FORM including Design-Build firm's fees and costs(to be submitted in aseparate sealed
envelope)
FUNDING
2018 CIP Bond Program $2,500,000
Administrative Costs
PACS Administration
$ 19,260
TPWlnspection/Materials/Testing $ 177,000
Owner's Contingency $ 700
Sub-total Owner's costs $ 197,000
Project Budget $2,303,000
Design/Build Costs
Design Costs
Components Est.Cost
Project Management $ 11,500.00
Site Survey-To o Mapping $ 16,500.00
GeotechnicalInvestigation N/A
Easement Removal(Northeast Property) $ 3,500.00
Site Design and Layout $ 73,500.00
Civil Engineering $ 7,500.00
Structural Engineering $ 5,000.00 Q
Environmental/Permitting N/A P
Skatepark Design $ 65,000.00
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Electrical Engineering $ 10,500.00 0
SUBTOTAL DESIGN COSTS $ 193,000.00
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Construction Costs
ITEM/DESCRIPTION UNITS QTY. COST TOTAL
Skate Park Expansion(concrete,ramps and 1 LS $ 725,000.00 $ 725,000.00
fencing)
Security Lighting at Skatepark 1 LS $ 31,860.00 $ 31,860.00
Parking Lots @ Northwest Property-(concrete) 36675 SF $ 7.00 $ 256,725.00
Playground-Accessible(perimeter and 1 LS $ 129,658.00 $ 129,658.00
equipment)
Playground Security Lighting(Grid or Solar) 1 LS $ 13,990.00 $ 13,990.00
Electrical Utility(onsite-modify) 1 LS $ 10,000.00 $ 10,000.00
Pavilion (75'x 30') 1 EA $ 155,250.00 $ 155,250.00
Drinking Fountain 1 EA $ 8,360.00 $ 8,360.00
Water Utility(onsite-modify) 1 LS $ 12,740.00 $ 12,740.00
Trails(8'wide concrete) 19760 SF $ 6.00 $ 118,560.00
Trail Low Water Crossing 1 EA $ 25,000.00 $ 25,000.00
Temporary Project Signs 1 EA $ 190.00 $ 190.00
Construction Entrance/Exit 1 EA $ 2,250.00 $ 2,250.00
Mobilization 1 LS $ 42,000.00 $ 42,000.00
SWPPP 1 LS $ 8,210.00 $ 8,210.00
Site Filter Strips/Site Storm Drainage Measures 1 LS $ 3,850.00 $ 3,850.00
Barricades, Signs and Traffic Handling 1 LS $ 2,500.00 $ 2,500.00
Erosion Control Measures 1 LS $ 22,490.00 $ 22,490.00
Tree/Vegetation Protection 1 LS $ 1,250.00 $ 1,250.00
Site Topsoil Stockpile 11372 CY $ 12.00 $ 136,464.00
Site Excavation 10000 CY $ 5.00 $ 50,000.00
Site Grading 3000 CY $ 15.00 $ 45,000.00
Native Grasses 40000 SF $ 0.10 $ 4,000.00
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Soccer Practice Fields 219319 SF $ 1.35 $ 296,080.65
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SUBTOTAL CONSTRUCTION COSTS $ 2,101,427.65 �—LnD
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TOTAL DESIGN/BUILD COSTS $ 2,294,427.65
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WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY VVC42OG01
(Ed. 1'94
TEXAS NOTICE QF MATERIAL CHANGE ENDORSEMENT
This endorsement applies only to the insurance provided by the policy because Texas is shown in Item 3.A. of
the Information Page.
In the event of cancellation or other material change of the policy, we will mail advance notice to the person or
organization named in the Schedule. The number of days advance notice is shown in the Schedule.
'
This endorsement shall not operate directly or indirectly tn benefit anyone not named in the Schedule.
�
Schedule
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|
1 Number uf days advance notice: 30 �
2. Notice will be mailed to: City cf Fort Worth �
1000Thnockmodon !
Fort Worth, TX7G102 �
�
�
This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. �
!
Date Prepared: February 25. 3020 /
Carrier: Bhdgefiekd Casualty Insurance Company {
Effective Date ofEndorsement: February 25. 2O20
Policy Number: 0196-58311 Countersigned by:
Insured: The Fain Group, Inc.
VVC430G01 (Ed 1-94)
"Includes copyright material of the National Council on Compensation Insurance,Inc.used with its permission.Copyright 1994 NCCI"
IMPORTANT NOTICE
STATE OF TEXAS
COMPLAINT PROCEDURES
1. IMPORTANT NOTICE AVISO IMPORTANTE
To obtain information or make a complaint: Para obtener informacion o para someter una quela:
2. You may contact your agent. Puede comunicarse con su (title) at (telephone
number).
3. You may call Westfield Insurance Company, Usted puede Ilamar at numero de telefono gratis de
Westfield National Insurance Company, andlor Westfield Insurance Company, Westfield National
Ohio Farmers Insurance CompanyTs toll-free Insurance Company, andfor Ohio Farmers
telephone number for information or to make a Insurance Company's para informacion o para
complaint at: someter una queja at:
1-800-243-0210 1-800-243-0210
4. You may also write to Westfield Insurance Usted tambien puede escribir a Westfield Insurance
Company, Westfield National Insurance Company, Company, Westfield National Insurance
and/or Ohio Farmers Insurance Company at: Company, and/or Ohio Farmers Insurance
Company:
Attn: Bond Claims Attn: Bond Claims
One Park Circle One Park Circle
P 0 Box 5001 P 0 Box 5001
Westfield Center,OH 44251-5001 Westfield Center, OH 44251-5001
Fax#330-887-0840 Fax#330-887-0840
5. You may contact the Texas Department of Puede comunicarse con el Departamento de
Insurance to obtain information on companies, Sequros de Texas para obtener informacion acerca
coverages, rights or complaints at: de companies, coberturas,derechos o quejas a[:
11-800-252-3439 1-800-252-3439
6. You may write to the Texas Department of Puede escribir a[ Departamento de Seguros de
Insurance, Consumer Protection Section(MC 111-1 A): Texas, Consumer Protection Section(MC 111-1A):
P.O. Box 149091 P.O. Box 149091
Austin, TX 78714-9091 Austin,TX 78714-9091
Fax: (512)490-1007 Fax: (512)490-1007
Web:www.tdi.texas.gov Web:www.tdi.texas.gov
E-mail:ConsumerProtection(@.tdi.texas;oov E-mail: ConsumerProtectiona.tdi.texas._qov
7. PREMIUM OR CLAIM DISPUTES: DISPUTAS SOBRE PRIMAS 0 RECLAMOS:
Should you have a dispute concerning your premium or Si tiene una disputa Goncerniente a su prima o a un
about-a claim, you should contact the agent, Westfield reclamo, debe comunicarse con el agente, Westfield
Insurance Company, Westfield National Insurance Insurance Company, Westfield National Insurance
Company, or Ohio Farmers Insurance Company first. If Company, o Ohio Farmers Insurance Company
the dispute is not resolved, you may contact the Texas primero, Si no se resuelve [a disputa, puede
Department of Insurance. entonces comunicarse con el departamento JD I).
8. ATTACH THIS NOTICE TO YOUR POLICY: UNA ESTE AVISO A SU POLIZA: Este aviso es
This notice is for information only and does not become solo para proposito de informacion y no se convierte
a part or condition of the attached document, en parte o condicion del documento adjunto.
BD5430 (06-15)
TEXAS STATUTORY PERFORMANCE BOND (PUBLIC WORKS)
BOND NO. 064819G
KNOW ALL MEN BY THESE PRESENTS:
THAT, The Fain Group,Inc., (hereinafter called the Principal), as Principal, and Westfield
Insurance Company, a corporation organized and existing under the laws of the State of Ohio,
licensed to do business in the State of Texas and admitted to write bonds, as surety, (hereinafter
called the Surety), are held and firmly bound unto City of Fort Worth, (hereinafter called the
Obligee), in the amount of Two Million Three Hundred Three Thousand And No/100 Dollars
($2,303,000.00) for the payment whereof, the said Principal and Surety bind themselves, and their
heirs, administrators, executors, successors, and assigns,jointly and severally, firmly by these
presents.
WHEREAS, the Principal has entered into a certain contract with the Obligee, dated the
day of s , for Chisholm Trail Park Phase Two Development, which
contract is hereby referred to and made a part hereof as fully and to the same extent as if copied
at length herein.
NOW, THEREFORE,THE CONDITION OF THIS OBLIGATION IS SUCH, That
if the said Principal shall faithfully perform the work in accordance with the plans, specifications
and contract documents,then this obligation shall be null and void; otherwise to remain in full
force and effect;
PROVIDED. HOWEVER, That this bond is executed pursuant to the provisions of
Chapter 2253 of the Texas Government Code and all liabilities on this bond shall be determined
in accordance with the provisions, conditions and limitations of said Chapter to the same extent
as if it were copied at length herein.
IN WITNESS WWREOF, the said Principal and Surety have signed and sealed this
instrument this day of O-zCs�, 201 n.
PRINCIPAL: The Fain Group,Inc.
BY:
SURETY: Westfield Insura ompany
BY:
Jeremy Barnett, Attorney-In-Fact
TEXAS STATUTORY PAYMENT BOND (PUBLIC WORKS)
BOND NO. 064819G
KNOW ALL MEN BY THESE PRESENTS:
THAT, The Fain Group,Inc., (hereinafter called the Principal), as Principal, and Westfield
Insurance Company, a corporation organized and existing under the laws of the State of Ohio,
licensed to do business in the State of Texas and admitted to write bonds, as surety, (hereinafter
called the Surety), are held and firmly bound unto City of Fort worth, (hereinafter called the
Obligee), in the amount of Two Million Three Hundred Three Thousand And No/100 Dollars
($2,303,000.00) for the payment whereof,the said Principal and Surety bind themselves, and their
heirs, administrators, executors, successors, and assigns,jointly and severally, firmly by these
presents.
WHEREAS, the Principal has entered into a certain contract with the Obligee, dated the
day of , for Chisholm Trail Park Phase Two Development, which contract
is hereby referred to and made a part hereof as fully and to the same extent as if copied at length
herein.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, That
if the said Principal shall pay all claimants supplying labor and material to him or a subcontractor
in the prosecution of the work provided for in said contract, then this obligation shall be null and
void; otherwise to remain in full force and effect;
PROVIDED. HOWEVER, that this bond is executed pursuant to the provisions of
Chapter 2253 of the Texas Government Code and all liabilities on this bond shall be determined
in accordance with the provisions, conditions and limitations of said Chapter to the same extent
as if it were copied at length herein.
IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this
instrument this Z�day of h ,_Zo?-
PRINCIPAL: The Fain Group,Inc.
BY:
SURETY: Westfield Insur a Company
BY:
Jeremy Barnett, Attorney-In-Fact
THIS POWER OF ATTORNEY SUPERCEDES ANY PREVIOUS POWER BEARING THIS SAME
POWER#AND ISSUED PRIOR TO 04=18,FOR ANY PERSON OR PERSONS NAMED BELOW.
General POWER NO. 4220012 14
Power Westfield Insurance Co.
of Attorney Westfield National Insurance Co.
CERTIFIED COPY Ohio Farmers Insurance Co.
Westfield Center, Ohio
Know All Men by These Presents, That WESTFIELD INSURANCE COMPANY, WESTFIELD NATIONAL INSURANCE COMPANY and OHIO
FARMERS INSURANCE COMPANY, corporations, hereinafter referred to individually as a "Company" and collectively as 'Companies," duly
organized and existing under the laws of the State of Ohio,and having Its principal office in Westfield Center, Medina County,Ohio, do by these
presents make,constitute and appoint
TONY FIERRO,JOHNNY MOSS,JAY JORDAN, MISTIE BECK,JEREMY BARNETT,JADE PORTER,ROBERT G.KANUTH,
JARRETT WILLSON,JACK NOTTINGHAM,JOINTLY OR SEVERALLY
of ROCKWALL and State of TX its true and lawful Attorney(s)-in-Fact,with full power and authority hereby conferred in its name,
place and stead, to execute, acknowledge and deliver any and all bonds, recognizances, undertakings, or other instruments or contracts of
suretyship- - - - - - - - -- - - - - - - - - - - - - - - - - • - - - - - -- - - - - - - - - - - - - - - - - - - - - • - -- - - -
LIMITATION: THIS POWER OF ATTORNEY CANNOT BE USED TO EXECUTE NOTE GUARANTEE, MORTGAGE DEFICIENCY, MORTGAGE
MARANTEE,OR BANK DEPOSITORY BONDS.
and to bind any of the Companies thereby as fully and to the same extent as if such bonds were signed by the President,sealed with the corporate
seal of the applicable Company and duly attested by Its Secretary, hereby ratifying and confirming all that the said Attorneys)-in-Fact may do in
the premises. Said appointment is made under and by authority of the following resolution adopted by the Board of Directors of each of the
WESTFIELD INSURANCE COMPANY,WESTFIELD NATIONAL INSURANCE COMPANY and OHIO FARMERS INSURANCE COMPANY:
'Be It Resolved,that the President,any Senior Executive,any Secretary or any Fidelity&Surety Operations Executive or other Executive shall
be and is hereby vested with full power and authority to appoint any one or more suitable persons as Attorney(s)-in-Fact to represent and act for
and on behalf of the Company subject to the following provisions:
The Attorney-in-Fact may be given full power and authority for and in the name of and on behalf of the Company,to execute,acknowledge and
deliver, any and all bonds, recognizances, contracts, agreements of indemnity and other conditional or obligatory undertakings and any and all
notices and documents canceling or terminating the Company's liability thereunder, and any such Instruments so executed by any such
Attorney-in-Fact shall be as binding upon the Company as if signed by the President and sealed and attested by the Corporate Secretary.'
"Be it Further Resolved,that the signature of any such designated person and the seal of the Company heretofore or hereafter affixed to any
power of attorney or any certificate relating thereto by facsimile,and any power of attorney or certificate bearing facsimile signatures or facsimile
seal shall be valid and binding upon the Company with respect to any bond or undertaking to which it is attached.' (Each adopted at a meeting
held on February 8,2000).
In Witness Whereof, WESTFIELD INSURANCE COMPANY, WESTFIELD NATIONAL INSURANCE COMPANY and OHIO FARMERS INSURANCE
COMPANY have caused these presents to be signed by their National Surety Leader and Senior Executive and their corporate seals to be hereto
affixed this 03rd day,x of�APRIL A.D.,2018 .
Corporatew1,., w „111,.."'
Seals �1�',�1!dVR ,dC"s p��n� fN'' �• ''yam WESTFIELD INSURANCE COMPANY
{Cr '� �►"$ •' :S WESTFIELD NATIONAL INSURANCE COMPANY
AM 3 G' +
: vr� .w. so' ; �' :y`• 3 + = OHIO FARMERS INSURANCE COMPANY
i s q ��•
�_• AL � :9);LL: SEAL :m m= ' _
•."' -�J1itM�
By. -
State of Ohio "' jjjjjl"" ""1•� Dennis P. Baus, National Surety Leader and
County of Medina ss.: Senior Executive
On this 03rd day of APRIL A.D.,2018 ,before me personally came Dennis P. Baus to me known,who, being by me duly sworn, did
depose and say, that he resides in Wooster, Ohio; that he is National Surety Leader and Senior Executive of WESTFIELD INSURANCE
COMPANY,WESTFIELD NATIONAL INSURANCE COMPANY and OHIO FARMERS INSURANCE COMPANY,the companies described in and which
executed the above instrument;that he knows the seals of said Companies;that the seals affixed to said instrument are such corporate seals;that
they were so affixed by order of the Boards of Directors of said Companies;and that he signed his name thereto by like order.
Notarial
Seal r R%A L ///�
Affixed ���`�Il��';'9• //
David A. Kotnik,Attorney at Law, Notary Public
State of Ohio � p My Commission Does Not Expire (Sec.147.03 Ohio Revised Code)
County of Medina ss.:
•'T£ OF
..•«•.,11 V p••'
I,Frank A.Carrino,Secretary of WESTFIELD INSURANCE COMPANY,WESTFIELD NATIONAL INSURANCE COMPANY and OHIO FARMERS
INSURANCE COMPANY, do hereby certify that the above and foregoing is a true and correct copy of a Power of Attorney, executed by said
Companies,which is still in full force and effect;and furthermore,the resolutions of the Boards of Directors, set out In the Power of Attorney are
in full force and effect. r�
In Witness Whereof,, II have hereunto set my hand and affixed the seals of said Companies at Westfield Center, Ohio, this�—flay of
URA
yS EAL ;m_ = , i't-�- t /i 'e,�4 n :� 1B4 = Secretary,� '• o: a •+ 8:�; Frank A. Carrin0, Secretary
BPOAC2(combined) (06-02)
ATTACHMENT C
Standard General Conditions A for Design-Build Agreement
CITY OF FORT WORTH
STANDARD GENERAL CONDITIONS FOR DESIGN-BUILD PROJECTS Page 1 of 67
PARD—Chisholm Trail Park Phase Two Development
Maceh 2020
STANDARD GENERAL CONDITIONS OF
THE CONSTRUCTION CONTRACT
TABLE OF
CONTENTS
Page
Article 1 —Definitions and Terminology....................................................................................................... 6
1.01 Defined Terms.........................................................................................................................6
1.02 Terminology..........................................................................................................................12
Article 2—Preliminary Matters....................................................................................................................13
2.01 Copies of Documents............................................................................................................13
2.02 Commencement of Contract Time;Notice to Proceed..........................................................13
2.03 Starting the Work..................................................................................................................13
2.04 Before Starting Construction, Baseline Schedules................................................................13
2.05 Preconstruction Conference..................................................................................................13
2.06 Public Meeting......................................................................................................................13
Article 3—Contract Documents: Intent,Amending,Reuse ........................................................................ 14
3.01 Intent......................................................................................................................................14
3.02 Reference Standards..............................................................................................................14
3.03 Reporting and Resolving Discrepancies................................................................................15
3.04 Amending and Supplementing Contract Documents.............................................................16
3.05 Reuse of Documents.............................................................................................................16
3.06 Electronic Data......................................................................................................................16
Article 4 — Availability of Lands; Subsurface and Physical Conditions; Hazardous Environmental
Conditions; Reference Points......................................................................................................17
4.01 Availability of Lands................................................................................................................17
4.02 Subsurface and Physical Conditions..........................................................................................17
4.03 Differing Subsurface or Physical Conditions............................................................................18
4.04 Underground Facilities..............................................................................................................18
4.05 Reference Points.......................................................................................................................19
4.06 Hazardous Environmental Condition at Site.............................................................................20
Article 5—Indemnity,Bonds and Insurance .................................................................................................22
5.01 Indemnification......................................................................................................................21
5.02 Bonds.....................................................................................................................................22
5.03 Certificates of Insurance........................................................................................................23
5.04 Categories of Insurance.........................................................................................................24
5.05 Insurance Requirements.......................................................................................................25
5.06 Acceptance of Bonds and Insurance; Option to Replace..........................................27
CITY OF FORT WORTH
STANDARD GENERAL CONDITIONS FOR DESIGN-BUILD PROJECTS Page 2 of 67
PARD—Chisholm Trail Park Phase Two Development
Mardi 2020
Article 6 Design Builder's Responsibilities..................................................................................................27
6.01 Supervision and Superintendence.........................................................................................27
6.02 Labor;Working Hours..........................................................................................................28
6.03 Services, Materials, and Equipment......................................................................................28
6.04 Project Schedule....................................................................................................................29
6.05 Concerning Subcontractors, Suppliers, and Others...............................................................29
6.06 Wage Rates............................................................................................................................30
6.07 Patent Fees and Royalties......................................................................................................32
6.08 Permits and Utilities..............................................................................................................32
6.09 Laws and Regulations...........................................................................................................33
6.10 Taxes .....................................................................................................................................33
6.11 Use of Site and Other Areas ..................................................................................................33
6.12 Record Documents................................................................................................................34
6.13 Safety and Protection............................................................................................................35
6.14 Safety Representative............................................................................................................36
6.15 Hazard Communication Programs ........................................................................................36
6.16 Emergencies and/or Rectification..........................................................................................36
6.17 Submittals and Samples......................................................................................................36
6.18 Continuing the Work............................................................................................................38
6.19 Design-Builder's General Warranty and Guarantee...............................................................38
6.20 Professional Design Services.
6.21 Right to Audit........................................................................................................................39
6.22 Nondiscrimination.................................................................................................................39
Article7-Other Work at the Site................................................................................................................40
7.01 Related Work at Site.............................................................................................................40
7.02 Coordination..........................................................................................................................40
Article8-City's Responsibilities....................................................................................................................41
8.01 Communications to Design-Builder....................................................................................41
8.02 Furnish Data..........................................................................................................................41
8.03 Pay When Due.......................................................................................................................41
8.04 Change Orders.......................................................................................................................41
8.05 Inspections, Tests, and Approvals.........................................................................................41
8.06 Limitations on City's Responsibilities................................................................................. 41
8.07 Undisclosed Hazardous Environmental Condition.............................................................. 41
Article 9-City's Observation Status During Construction.............................................................................41
9.01 City's Project Representative................................................................................................41
9.02 Visits to Site...........................................................................................................................42
9.03 Authorized Variations in Work..............................................................................................42
9.04 Rejecting Defective Work.....................................................................................................42
Article 10-Changes in the Work; Claims; Extra Work................................................................................42
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10.01 Authorized Changes in the Work............................................................................................ 42
10.02 Unauthorized Changes in the Work.........................................................................................43
10.03 Execution of Change Orders....................................................................................................43
10.04 Extra Work..............................................................................................................................43
10.05 Notification to Surety..............................................................................................................43
10.06 Contract Claims Process..........................................................................................................44
Article I I -Cost of the Work;Allowances;Unit Price Work; Plans Quantity Measurement.......................45
11.01 Cost of the Work.....................................................................................................................45
11.02 Allowances/Contingency........................................................................................................51
Article 12-Design-Builder's Fee Change of Contract Price; Change of Contract Time, Delays.................51
12.01 Design-Builder's Fee...................................................................................................................51
12.02 Change of GMP...........................................................................................................................51
12.03 Change of Contract Time............................................................................................................51
12.04 Delays......................................................................................................52
Article 13 -Tests and Inspections; Correction,Removal or Acceptance of Defective Work.......................52
13.01 Notice of Defects.....................................................................................................................52
13.02 Access to Work.......................................................................................................................52
13.03 Tests and Inspections..............................................................................................................52
13.04 Uncovering Work....................................................................................................................53
13.05 City May Stop the Work.........................................................................................................54
13.06 Correction or Removal of Defective Work.............................................................................54
13.07 Correction Period....................................................................................................................55
13.08 Acceptance of Defective Work...............................................................................................55
13.09 City May Correct Defective Work..........................................................................................56
Article 14-Payments to Contractor and Completion...................................................................................56
14.01 Schedule of Values..................................................................................................................56
14.02 Progress Payments..................................................................................................................56
14.03 Design-Builder's Warranty of Title........................................................................................59
14.04 Partial Utilization....................................................................................................................59
14.05 Final Inspection.......................................................................................................................59
14.06 Final Acceptance.....................................................................................................................60
14.07 Final Payment..........................................................................................................................60
14.08 Final Completion Delayed and Partial Retainage Release......................................................61
14.09 Waiver of Claims....................................................................................................................61
Article 15-Suspension of Work and Termination........................................................................................61
15.01 City May Suspend Work.........................................................................................................61
15.02 City May Terminate for Cause................................................................................................62
15.03 City May Terminate For Convenience....................................................................................64
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Article16—Dispute Resolution.....................................................................................................................66
16.01 Methods and Procedures..........................................................................................................66
Article17—Miscellaneous............................................................................................................................66
17.01 Giving Notice..........................................................................................................................66
17.02 Computation of Times.............................................................................................................67
17.03 Cumulative Remedies.............................................................................................................67
17.04 Survival of Obligations...........................................................................................................67
17.05 Headings.................................................................................................................................67
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ARTICLE 1—DEFINITIONS AND TERMINOLOGY
1.01 Defined Terms
Wherever used in these General Conditions or in other Contract Documents, the terms listed below
have the meanings indicated which are applicable to both the singular and plural thereof, and words
denoting gender shall include the masculine, feminine and neuter. Said terms are generally capitalized
or written in italics, but not always. When used in a context consistent with the definition of a listed-
defined term, the term shall have a meaning as defined below whether capitalized or italicized or
otherwise. In addition to terms specifically defined, terms with initial capital letters in the Contract
Documents include references to identified articles and paragraphs, and the titles of other documents or
forms.
1. Addenda—Written or graphic instruments issued prior to the opening of Bids which clarify, correct,
or change the Bidding Requirements or the proposed Contract Documents.
2. Agreement—The written instrument memorializing the understanding between City and Design-
Builder regarding prosecution of the Work.
3. Allowance—Funds, if any,reserved unto the Project by the City for City's use.
4. Architect — A Licensed, independent design professional pursuant to Texas Occupations Code
Chapter 1051 et seq. selected by the Design-Builder based upon demonstrated competence and
qualifications in accordance with Chapter 2254, Texas Government Code or furnished by licensed
employees of the Design-Builder to provide architectural services required for the project.
5. Application for Payment—The form acceptable to City which is to be used by Design-Builder
during the course of the Work in requesting progress or final payments and which is to be
accompanied by such supporting documentation as is required by the Contract Documents.
6. Asbestos—Any material that contains more than one percent asbestos and is friable or is releasing
asbestos fibers into the air above current action levels established by the United States Occupational
Safety and Health Administration.
7. Award—Authorization by the City Council for the City to enter into an Agreement.
8. Business Day—A business day is defined as a day that the City conducts normal business, generally
Monday through Friday, except for federal or state holidays observed by the City.
9. Business Diversity Enterprise Ordinance-the City's Business Diversity Enterprise Ordinance#20020-
12-2011 (City Code Chapter 20,Article X), as amended.
10. Calendar Day—A day consisting of 24 hours measured from midnight to the next midnight.
11. Change Order—A document, which is prepared and approved by the City, which is signed by
Design-Builder and City and authorizes an addition, deletion, or revision in the overall Work or an
adjustment in the GMT or the Contract Time, issued on or after the Effective Date of the
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Agreement.
12. City— The City of Fort Worth, Texas, a Texas home-rule municipal corporation, acting by its
governing body through its City Manager, his designee, or agents authorized under his behalf, and is
the entity with whom Design-Builder has entered into the Agreement and for whom the Work is to be
performed.
13. City Attorney — The officially appointed City Attorney of the City of Fort Worth, Texas, or her duly
authorized representative.
14. City Council - The duly elected and qualified governing body of the City of Fort Worth, Texas.
15. City Manager — The officially appointed and authorized City Manager of the City of Fort Worth,
Texas, or his duly authorized representative.
16. Construction Documents - The drawings, specifications and other documents prepared by the
Design-Builder or Engineer and approved by the City for the construction of the Project.
17. Contract Claim—A demand or assertion by City or Design-Builder seeking an adjustment of
Contract Price or Contract Time, or both, or other relief with respect to the terms of the Agreement. A
demand for money or services by a third party is not a Contract Claim.
18. Contract Documents— The entire contract consisting of the Agreement, the Request for Proposals,
Design-Builder's Proposal, the Construction Documents, and any exhibits thereto, and other
necessary documents as may be indicated by the City whether specifically attached hereto or
provided separately. Approved Submittals, other submittals, and the reports and drawings of
subsurface and physical conditions are not Contract Documents.
19. Contract Price—The moneys payable by Design-Builder to a Contractor for completion of the
Work in accordance with the Contract Documents.
20. Contract Time—The number of days or the dates stated in the Agreement to: (i) achieve
Milestones, if any, and(ii) complete the Work so that it is ready for Final Acceptance.
21. Contractor—The individual or entity with whom Design-Builder has entered into a contract for
construction of the Work.
22. Cost of Work—The included and excluded costs which Design-Builder shall consider when
developing the Design-Builder's Fee and the GMP. See Paragraph 11.01 of these General Conditions
for details.
23. Damage Claims — A demand for money or services arising from the Project or Site from a third
party, City, Design-Builder or Contractor exclusive of a Contract Claim.
24. Day or day—A day,unless otherwise defined, shall mean a Calendar Day.
25.Design-Builder — A sole proprietorship, partnership, corporation, or other legal entity that
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includes an architect and/or engineer and a construction contractor(s).
26.Defective Work-Any portion of the Work not in conformance with the Contract Documents.
27.Design-Builder Fee—The moneys payable by City to Design-Builder for prosecution of the Work
in accordance with the Contract Documents as stated in the Agreement.
28. Director of Aviation — The officially appointed Director of the Aviation Department of the City of
Fort Worth, Texas, or his duly appointed representative, assistant, or agents.
29. Director of Parks and Recreation Department — The officially appointed Director of the Parks and
Recreation Department of the City of Fort Worth, Texas, or his duly appointed representative,
assistant, or agents
30. Director of Planning and Development — The officially appointed Director of the Planning and
Development Department of the City of Fort Worth, Texas, or his duly appointed representative,
assistant, or agents.
31. Director of Transportation and Public Works — The officially appointed Director of the
Transportation and Public Works Department of the City of Fort Worth, Texas, or his duly appointed
representative, assistant, or agents.
32. Director of Water Department — The officially appointed Director of the Water Department of the
City of Fort Worth, Texas, or his duly appointed representative, assistant, or agents.
33. Drawings — That part of the Contract Documents prepared or approved by Engineer which
graphically shows the scope, extent, and character of the Work to be performed by Contractor.
Submittals are not Drawings as so defined.
34. Effective Date of the Agreement — The date indicated in the Agreement on which it becomes
effective, but if no such date is indicated, it means the date on which the Agreement is signed by the
City Manager.
35. Engineer—The licensed, independent design professional, as per Texas Occupations Code Chapter
1001 et seq., selected by the Design-Builder in accordance with Texas Government Code Chapter
2254, to provide engineering services required for the project.
36. Extra Work — Additional work made necessary by changes or alterations of the Contract
Documents or of quantities or for other reasons for which no prices are provided in the Contract
Documents. Extra Work shall be incorporated into the Work.
37. Field Order— A written order issued by Design-Builder, which may be on the recommendation of
the City, which requires changes in the Work but which does not involve a change in the GNP,
Contract Time, or the intent of the Engineer. Payment for Field Orders is the responsibility of the
Design-Builder and may be funded from Allowances, project contingency funds, if any, or other
funding sources incorporated into the Agreement.
38. Final Acceptance — The written notice given by the City to the Design-Builder that the Work
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specified in the Contract Documents has been completed to the satisfaction of the City.
39. Final Inspection — Inspection carried out by the City to verify that the Design-Builder has
completed the Work, and each and every part or appurtenance thereof, fully, entirely, and in
conformance with the Contract Documents.
40. General Requirements—Sections of Division 1 of the Contract Documents.
41. Guaranteed Maximum Price (GMP) - The maximum cost to the City to for the Work as
established by the Design-Builder according to the Contract Documents and as approved by the
City. The GNU may contain a contingency amount for Design-Builder's use ("Design-Builder
Contingency")with City review and approval.
42. Hazardous Environmental Condition—The presence at the Site of Asbestos, PCBs, Petroleum,
Hazardous Waste, Radioactive Material, or other materials in such quantities or circumstances that
may present a substantial danger to persons or property exposed thereto.
43. Hazardous Waste—Hazardous waste is defined as any solid waste listed as hazardous or
possesses one or more hazardous characteristics as defined in the federal waste regulations, as
amended from time to time.
44.Laws and Regulations—Any and all applicable laws, rules, regulations, ordinances, codes, and
orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction.
45.Liens—Charges, security interests, or encumbrances upon Project funds, real property, or personal
property.
46.Liquidated Damages. A specified sum of money established in the Agreement that, for each
calendar day that any work shall remain uncompleted after the time specified in the Agreement, will
be deducted from the monies due the Design-Builder, not as a penalty, but as liquidated damages
suffered by the City.
47.Major Item — An Item of work included in the Contract Documents that has a total cost equal to or
greater than 5%of the original Contract Price or$25,000 whichever is less.
48.MBE-A business concern located in the Marketplace (as defined in the Business Diversity
Enterprise Ordinance)meeting the following criteria: is at least 51 percent owned by one or more
minori persons, or, in the case of any publicly owned business, at least 51 percent of the stock is
owned by one or more minori persons; and management and daily business operations are
controlled by one or more minority persons who own it.
49.MBE Utilization Plan—The Design-Builder's plan to address the diverse MBE and/or SBE goals set
by City for performance of the Work.
50.Milestone—A principal event specified in the Contract Documents relating to an intermediate Contract
Time prior to Final Acceptance of the Work.
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51. Notice of Award—The written notice by City to the successful Proposer stating that upon timely
compliance by the successful Proposer with the conditions precedent listed therein, City will execute
the Agreement.
52. Notice to Proceed—A written notice given by City to Design-Builder fixing the date on which the
Contract Time will commence to run and on which Contractor shall start to perform the Work
specified in Contract Documents.
53. Open Book Price The price of subcontracts and purchases, the site expenses for superintendence and
professional services directly supporting the construction effort plus agreed overhead and profit.
54. PCBs—Polychlorinated biphenyls.
55. Petroleum—Petroleum, including crude oil or any fraction thereof which is liquid at standard
conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch
absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with
other non-Hazardous Waste and crude oils.
56. Plans—See definition of Drawings.
57. Project—The Work to be performed under the Contract Documents.
58. Project Schedule—A schedule, prepared and maintained by Design-Builder, in accordance with the
General Requirements, describing the sequence and duration of the activities comprising the
Contractor's plan to accomplish the Work within the Contract Time.
59. Project Representative--The authorized representative of the City who will be assigned to the
Project. The Project Representative is not a City inspector for purposes of inspecting detailed aspects
of the construction phase of the Work.
60. Proposal — A Proposer's response to the RFP issued by the City to solicit a Design-Builder to
design and build the Project.
61. Proposer—A Design-Builder who submits a Proposal.
62. Public Meeting — An announced meeting conducted by the City and/or Design-Builder to facilitate
public participation and to inform the public of the Project.
63. Radioactive Material—Source, special nuclear, or byproduct material as defined by the Atomic
Energy Act of 1954(42 USC Section 2011 et seq.)as amended from time to time.
64. Regular Working Hours — Hours beginning at 7:00 a.m. and ending at 6:00 p.m., Monday thru
Friday(excluding legal holidays).
65. Retainage—The amount of money, on a percentage basis, identified in the Agreement to be withheld
by City from each of Design-Builder's progress payments.
66.Request for Proposals (RFP) — A request by the City issued to qualified Design-Builder Firms
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for Proposals to design and build the Project.
67. Samples—Physical examples of materials, equipment, or workmanship that are representative of
some portion of the Work and which establish the standards by which such portion of the Work will
bejudged.
68. SBE- Small Business Enterprise is a business concern located in the Marketplace (as defined in the
Business Diversity Enterprise Ordinance) and may be a corporation, partnership, sole proprietorship
or other legal business entity established to make a profit. The business must be independently-
owned and operated, have a place of business within the U.S. and works primarily within the U.S.,
has proof of U.S. citizenship and meets the U.S. Small Business Administration size standard
requirements for a small business in its NAICS code industry(s).
69. Schedule of Submittals—A schedule, prepared and maintained by Design-Builder, of required
submittals and the time requirements to support scheduled performance of related construction
activities.
70. Schedule of Values—A schedule prepared and maintained by Design-Builder, allocating portions of
the Project Price to various portions of the Work and used as the basis for reviewing Design-Builder's
Applications for Payment.
71. Site—Lands or areas indicated in the Contract Documents as being furnished by City upon which
the Work is to be performed, including rights-of-way, permits, and easements for access thereto, and
such other lands furnished by City which are designated for the use of Design-Builder in furtherance
of the Project.
72. Specifications—That part of the Contract Documents consisting of written requirements for
materials, equipment, systems, standards and workmanship as applied to the Work, and certain
administrative requirements and procedural matters applicable thereto. Specifications may be
specifically made a part of the Contract Documents by attachment or, if not attached, may be
incorporated by reference.
73. Subcontractor—An individual or entity, at whatever tier, having a direct contract with Contractor,
the Design-Builder or with any other Subcontractor for the performance of a part of the Work at the
Site.
74. Submittals—All drawings, diagrams, illustrations, schedules, and other data or information which
are specifically prepared or assembled by or for Design-Builder and submitted to City by Design-
Builder to illustrate some portion of the Work.
75. Substantial Completion — The stage in the progress of the Project when the Work (or designated
portion thereof) is sufficiently complete in accordance with the Contract Documents so that the City
can utilize the Project(or a designated portion thereof)for its intended use.
76. Superintendent — The representative of the Design-Builder who is available at all times and able to
receive instructions from the City and to act for the Design-Builder.
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77. Supplementary Conditions—That part of the Contract Documents which amends or supplements
these General Conditions.
78. Supplier—A manufacturer, fabricator, supplier, distributor, material man, or vendor having a direct
contract with Design-Builder, Contractor or with any Subcontractor to furnish materials or
equipment to be incorporated in the Work.
79. Underground Facilities—All underground pipelines, conduits, ducts, cables, wires, manholes, vaults,
tanks, tunnels, or other such facilities or attachments, and any encasements containing such facilities,
including but not limited to, those that convey electricity, gases, steam, liquid petroleum products,
telephone or other communications, cable television, water, wastewater, storm water, other liquids or
chemicals, or traffic or other control systems.
80. Weekend Working Hours — Hours beginning at 9:00 a.m. and ending at 5:00 p.m., Saturday, Sunday
or legal holiday, as approved in advance by the City.
81. Work—The labor, materials, equipment, and services necessary to perform the design and
construction of the project, or the various separately identifiable parts thereof, under the Contract
Documents. Work includes and is the result of performing or providing all labor, services, and
documentation necessary to produce such design and construction including any Change Order or
Field Order, and furnishing, installing, and incorporating all materials and equipment into such
construction, all as required by the Contract Documents.
82. Working Day—A working day is defined as a day, not including Saturdays, Sundays, or legal holidays
authorized by the City for contract purposes, in which weather or other conditions not under the
control of the Design-Builder will permit the performance of the principal unit of work underway for
a continuous period of not less than 7 hours between 7 a.m. and 6 p.m.
1.02 Terminology
A. The words and terms discussed in Paragraph 1.023 through E are not defined but, when used in
the Contract Documents, have the indicated meaning.
B. Intent of Certain Terms or Adjectives:
1. The Contract Documents include the terms "as allowed," "as approved," "as ordered," "as
directed" or terms of like effect or import to authorize an exercise of judgment by City. In
addition, the adjectives "reasonable," "suitable," "acceptable," "proper," "satisfactory," or
adjectives of like effect or import are used to describe an action or determination of City as to
the Work. It is intended that such exercise of professional judgment, action, or determination
will be solely to evaluate, in general, the Work for compliance with the information in the
Contract Documents and with the design concept of the Project as a functioning whole as
shown or indicated in the Contract Documents (unless there is a specific statement indicating
otherwise).
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C. Defective:
The word "defective," when modifying the word "Work," refers to Work that is
unsatisfactory, faulty, or deficient in that it:
a. does not conform to the Contract Documents; or
b. does not meet the requirements of any applicable inspection, reference standard, test, or
approval referred to in the Contract Documents; or
c. has been damaged prior to City's written acceptance.
D. Furnish, Install, Perform, Provide, Supply:
The word "Furnish" or the word "Install" or the word "Perform" or the word "Provide" or the
word "Supply," or any combination or similar directive or usage thereof, shall mean
furnishing and incorporating in the Work including all necessary labor, materials, equipment,
and everything necessary to perform the Work indicated, unless specifically limited in the
context used.
E. Common Construction Terms: Unless stated otherwise in the Contract Documents,
words or phrases that have a well-known technical or construction industry or trade meaning
are used in the Contract Documents in accordance with such recognized meaning.
ARTICLE 2—PRELIMINARY MATTERS
2.01 Copies of Documents
City shall furnish to Design-Builder one (1) original executed copy and one (1) electronic copy of
the Agreement and Contract Documents, and up to four (4) additional copies of the Drawings, as
requested by Design-Builder. Additional copies will be furnished upon request at the cost of
reproduction.
2.02 Commencement of Contract Time;Notice to Proceed
The Contract Time will commence to run on the day indicated in the Notice to Proceed. A Notice to
Proceed may be given at any time within 14 days after the Effective Date of the Agreement.
2.03 Starting the Work
Design-Builder shall begin compensable performance of the design portion of the Work on
the date when the Contract Time commences to run. No construction Work shall be done at the Site
prior to the date on which the City approves the design of the Work,unless upon request of the Design-
Builder and permission is specifically granted by the City.
2.04 Before Starting Construction, Baseline Schedules
Design-Builder shall submit to City its schedule in accordance with the Contract Documents,
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and prior to starting the Work.No progress payment shall be made to Design-Builder until
acceptable schedules are submitted to City in accordance with the Schedule Specification as provided
in the Contract Documents.
2.05 Preconstruction Conference
Before any Work at the Site is started, the Design-Builder shall attend a Preconstruction
Conference as specified in the Contract Documents.
2.06 Public Meeting
Design-Builder may not mobilize any equipment, materials or resources to the Site prior to
Contractor attending the Public Meeting as scheduled by the City.
ARTICLE 3—CONTRACT DOCUMENTS: INTENT,AMENDING,REUSE
3.01 Intent
A. The Contract Documents are complementary; what is required by one is as binding as if required
by all.
B. It is the intent of the Contract Documents to describe a functionally complete project (or part
thereof) to be constructed in accordance with the Contract Documents. Any labor,
documentation, services, materials, or equipment that reasonably may be inferred from the
Contract Documents or from prevailing custom or trade usage as being required to produce the
indicated result will be provided whether or not specifically called for, at no additional cost to
City.
C. Clarifications and interpretations of the Contract Documents shall be issued by City.
D. The Specifications may vary in form, format and style. Some Specification sections may be
written in varying degrees of streamlined or declarative style and some sections may be
relatively narrative by comparison. Omission of such words and phrases as "the Contractor
shall," "in conformity with," "as shown," or "as specified" are intentional in streamlined
sections. Omitted words and phrases shall be supplied by inference. Similar types of provisions
may appear in various parts of a section or articles within a part depending on the format of the
section. The D e s i g n-B u i l d e r o r Contractor shall not take advantage of any variation of
form, format or style in making Contract Claims.
E. The cross referencing of specification sections under the subparagraph heading "Related
Sections include but are not necessarily limited to:" and elsewhere within each Specification
section is provided as an aid and convenience to the Contractor. The D e s i g n-B u i l d e r o r
Contractor shall not rely on the cross referencing provided and shall be responsible to coordinate
the entire Work under the Contract Documents and provide a complete Project whether or not
the cross referencing is provided in each section or whether or not the cross referencing is
complete.
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3.02 Reference Standards
A. Standards, Specifications, Codes, Laws, and Regulations
1. Reference to standards, specifications, manuals, or codes of any technical society,
organization, or association, or to Laws or Regulations, whether such reference be specific or
by implication, shall mean the standard, specification, manual, code, or Laws or Regulations
in effect at the time of the Effective Date of the Agreement except as may be otherwise
specifically stated in the Contract Documents.
2. No provision of any such standard, specification, manual, or code, or any instruction of a
Supplier, shall be effective to change the duties or responsibilities of City, Design-Builder,
Contractor, or any of their subcontractors, consultants, agents, or employees, from those set
forth in the Contract Documents. No such provision or instruction shall be effective to assign
to City or any of its officers, directors, members, partners, employees, agents, consultants, or
subcontractors, any duty or authority to supervise or direct the performance of the Work or
any duty or authority to undertake responsibility inconsistent with the provisions of the
Contract Documents.
3.03 Reporting and Resolving Discrepancies
A. Reporting Discrepancies:
1. Design-Builder 's and Contractor's Review of Contract Documents Before Starting
Work: Before undertaking each part of the Work, D e s i g n-B u i l d e r a n d Contractor
shall carefully study and compare the Contract Documents and check and verify pertinent
figures therein against all applicable field measurements and conditions. D e s i g n-B u i l d e r
shall promptly report in writing to City any conflict, error, ambiguity, or discrepancy which
D e s i g n-B u i l d e r discovers, or has actual knowledge of, and shall obtain a written
interpretation or clarification from City before proceeding with any Work affected thereby.
2. Design-Builder 's or Contractor's Review of Contract Documents During
Performance of Work. If, during the performance of the Work, D e s i g n-B u i l d e r o r
Contractor discovers any conflict, error, ambiguity, or discrepancy within the Contract
Documents, or between the Contract Documents and (a) any applicable Law or Regulation,
(b) any standard, specification, manual, or code, or (c) any instruction of any Supplier, then
Design-Builder shall promptly report it to City in writing. Design-Builder shall
not proceed with the Work affected thereby (except in an emergency as required by
Paragraph 6.16.A) until an amendment or supplement to the Contract Documents has been
issued by one of the methods indicated in Paragraph 3.04.
3. D e s i g n-B u i 1 d e r shall not be liable to City for failure to report any conflict, error,
ambiguity, or discrepancy in the Contract Documents unless D e s i g n-B u i l d e r had actual
knowledge thereof.
B. Resolving Discrepancies:
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1. Except as may be otherwise specifically stated in the Contract Documents, the provisions of
the Contract Documents shall take precedence in resolving any conflict, error, ambiguity, or
discrepancy between the provisions of the Contract Documents and the provisions of any
standard, specification, manual, or the instruction of any Supplier(whether or not specifically
incorporated by reference in the Contract Documents).
2. In case of discrepancies, figured dimensions shall govern over scaled dimensions, Plans shall
govern over Specifications, Supplementary Conditions shall govern over General Conditions
and Specifications, and quantities shown on the Plans shall govern over those shown in the
proposal.
3.04 Amending and Supplementing Contract Documents
A. The Contract Documents may be amended to provide for additions, deletions, and revisions in
the Work or to modify the terms and conditions thereof by a Change Order.
B. The requirements of the Contract Documents may be supplemented and minor variations and
deviations in the Work not involving a change in GMT or Contract Time, may be authorized, by
one or more of the following ways:
1. A Field Order;
2. City's review of a Submittal(subject to the provisions of Paragraph 6.17.C); or
3. City's written interpretation or clarification.
3.05 Reuse of Documents
A. Contractor and any Subcontractor or Supplier shall not:
1. have or acquire any title to or ownership rights in any of the Drawings, Specifications, or
other documents (or copies of any thereof) prepared by or bearing the seal of Engineer,
including electronic media editions; or
2. reuse any such Drawings, Specifications, other documents, or copies thereof on extensions of
the Project or any other project without written consent of City and specific written
verification or adaptation by Engineer.
B. The prohibitions of this Paragraph 3.05 will survive final payment, or termination of the
Agreement. Nothing herein shall preclude Design-Builder from retaining copies of the Contract
Documents for record purposes.
3.06 Electronic Data
A. Unless otherwise stated in the Supplementary Conditions, the data furnished by City or Engineer
to Contractor, or by Design-Builder to City or Engineer, that may be relied upon are limited to
the printed copies included in the Contract Documents (also known as hard copies) and other
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Specifications referenced and located on the City's on-line, electronic document management
and collaboration system. Files in electronic media format of text, data, graphics, or other types
are furnished only for the convenience of the receiving party. Any conclusion or information
obtained or derived from such electronic files will be at the user's sole risk. If there is a
discrepancy between the electronic files and the hard copies,the hard copies govern.
B. When transferring documents in electronic media format, the transferring party makes no
representations as to long term compatibility, usability, or readability of documents resulting
from the use of software application packages, operating systems, or computer hardware
differing from those used by the data's creator.
ARTICLE 4—AVAILABILITY OF LANDS; SUBSURFACE AND PHYSICAL CONDITIONS;
HAZARDOUS ENVIRONMENTAL CONDITIONS; REFERENCE POINTS
4.01 Availability of Lands
A. City shall furnish the Site. City shall notify Design-Builder of any encumbrances or restrictions
not of general application but specifically related to use of the Site with which Design-Builder
must comply in performing the Work. City will obtain in a timely manner and pay for easements
for permanent structures or permanent changes in existing facilities.
1. The City has obtained or anticipates acquisition of and/or access to right-of-way, and/or
easements. Any outstanding right-of-way and/or easements are anticipated to be acquired in
accordance with the schedule set forth in the Supplementary Conditions. The Project Schedule
submitted by the Design-Builder in accordance with the Contract Documents must consider any
outstanding right-of-way, and/or easements.
2. The City has or anticipates removing and/or relocating utilities. Any outstanding removal or
relocation of utilities is anticipated in accordance with the schedule set forth in the Supplementary
Conditions. The Project Schedule submitted by the Design-Builder in accordance with the
Contract Documents must consider any outstanding utilities to be removed, adjusted, and/or
relocated by others.
B. Upon reasonable written request, City shall furnish Design-Builder with a current statement of
record legal title and legal description of the lands upon which the Work is to be performed or as-
built and/or record drawings of any existing structures at the Site.
C. Design-Builder shall provide for all additional lands and access thereto that may be required for
construction facilities or storage of materials and equipment.
4.02 Subsurface and Physical Conditions
A. Reports and Drawings: The Supplementary Conditions identify:
1. those reports known to City of explorations and tests of subsurface conditions at or
contiguous to the Site; and
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2. those drawings known to City of physical conditions relating to existing surface or
subsurface structures at the Site(except Underground Facilities).
B. Limited Reliance by Design-Builder on Technical Data Authorized: Design-Builder may rely
upon the accuracy of the "technical data" contained in such reports and drawings, but such
reports and drawings are not Contract Documents. Such "technical data" is identified in the
Supplementary Conditions. Design-Builder may not make any Contract Claim against City, or
any of its officers, directors,members,partners, employees, agents, consultants, or subcontractors
with respect to:
1. the completeness of such reports and drawings for Design-Builder's purposes, including, but
not limited to, any aspects of the means, methods, techniques, sequences, and procedures of
construction to be employed by Design-Builder, and safety precautions and programs
incident thereto; or
2. other data, interpretations, opinions, and information contained in such reports or shown or
indicated in such drawings; or
3. any Design-Builder interpretation of or conclusion drawn from any "technical data" or any
such other data, interpretations, opinions, or information.
4.03 Differing Subsurface or Physical Conditions
A. Notice: If Design-Builder believes that any subsurface or physical condition that is
uncovered or revealed either:
1. is of such a nature as to establish that any "technical data" on which Design-Builder is
entitled to rely as provided in Paragraph 4.02 is materially inaccurate; or
2. is of such a nature as to require a change in the Contract Documents; or
3. differs materially from that shown or indicated in the Contract Documents; or
4. is of an unusual nature, and differs materially from conditions ordinarily encountered and
generally recognized as inherent in work of the character provided for in the Contract
Documents;
then Design-Builder shall, promptly after becoming aware thereof and before further disturbing
the subsurface or physical conditions or performing any Work in connection therewith (except in
an emergency as required by Paragraph 6.16.A),notify City in writing about such condition.
B. Possible Price and Time Adjustments
Design-Builder shall be entitled to an adjustment in the GMP or Contract Time i£
1. Design-Builder did not know of the existence of such conditions at the time Design-Builder
made a final commitment to City with respect to GMP and Contract Time ; or
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2. the existence of such condition could not reasonably have been discovered or revealed as a
result of the examination of the Contract Documents or the Site; or
3. Design-Builder gave the written notice as required by Paragraph 4.03.A.
4.04 Underground Facilities
A. Shown or Indicated.• The information and data shown or indicated in the Contract Documents
with respect to existing Underground Facilities at or contiguous to the Site is based on
information and data furnished to City or Engineer by the owners of such Underground
Facilities, including City, or by others. Unless it is otherwise expressly provided in the
Supplementary Conditions:
1. City, Design-Builder and Engineer shall not be responsible for the accuracy or completeness
of any such information or data provided by others; and
2. the cost of all of the following will be included in the GMT, and Design-Builder shall have
full responsibility for:
a. reviewing and checking all such information and data;
b. locating all Underground Facilities shown or indicated in the Contract Documents;
c. coordination and adjustment of the Work with the owners of such Underground
Facilities, including City, during construction; and
d. the safety and protection of all such Underground Facilities and repairing any damage
thereto resulting from the Work.
B. Not Shown or Indicated:
1. If an Underground Facility which conflicts with the Work is uncovered or revealed at or
contiguous to the Site which was not shown or indicated, or not shown or indicated with
reasonable accuracy in the Contract Documents, Design-Builder shall, promptly after
becoming aware thereof and before further disturbing conditions affected thereby or
performing any Work in connection therewith (except in an emergency as required by
Paragraph 6.16.A), identify the owner of such Underground Facility and give notice to that
owner and to City. City will review the discovered Underground Facility and determine the
extent, if any, to which a change may be required in the Contract Documents to reflect and
document the consequences of the existence or location of the Underground Facility. Design-
Builder shall be responsible for the safety and protection of such discovered Underground
Facility.
2. If City concludes that a change in the Contract Documents is required, a Change Order may
be issued to reflect and document such consequences.
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3. Verification of existing utilities, structures, and service lines shall include notification of all
utility companies a minimum of 48 hours in advance of construction including exploratory
excavation if necessary.
4.05 Reference Points
A. Design-Builder shall provide engineering surveys to establish reference points for construction,
which are necessary to enable Design-Builder to proceed with the Work. Design-Builder will
provide construction stakes or other customary method of marking to establish line and grades
for roadway and utility construction, centerlines and benchmarks for bridgework. Design-Builder
shall protect and preserve the established reference points and property monuments, and shall
make no changes or relocations. Design-Builder shall report to City whenever any reference
point or property monument requires relocation because of necessary changes in grades or
locations. Design-Builder shall be responsible for the replacement or relocation of reference
points or property monuments destroyed by the Design-Builder or Contractor.
4.06 Hazardous Environmental Condition at Site
A. Reports and Drawings: The Supplementary Conditions identify those reports and drawings
known to City relating to Hazardous Environmental Conditions that have been identified at the
Site.
B. Limited Reliance by Design-Builder on Technical Data Authorized: Design-Builder may rely
upon the accuracy of the "technical data" contained in such reports and drawings, but such
reports and drawings are not Contract Documents. Such "technical data" is identified in the
Supplementary Conditions. Design-Builder may not make any Contract Claim against City, or
any of its officers, directors,members,partners, employees, agents, consultants, or subcontractors
with respect to:
1. the completeness of such reports and drawings for Design-Builder's purposes, including, but
not limited to, any aspects of the means, methods, techniques, sequences and
procedures of construction to be employed by Design-Builder and safety precautions and
programs incident thereto; or
2. other data, interpretations, opinions and information contained in such reports or shown or
indicated in such drawings; or
3. any Design-Builder interpretation of or conclusion drawn from any "technical data" or any
such other data, interpretations, opinions or information.
C. Design-Builder shall not be responsible for any Hazardous Environmental Condition uncovered
or revealed at the Site which was not shown or indicated in Drawings or Specifications or
identified in the Contract Documents to be within the scope of the Work. Design-Builder shall
be responsible for a Hazardous Environmental Condition created with any materials brought to
the Site by Design-Builder, Contractor, Subcontractors, Suppliers, or anyone else for whom
Design-Builder is responsible.
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D. If Design-Builder encounters a Hazardous Environmental Condition or if Design-Builder or
anyone for whom Design-Builder is responsible creates a Hazardous Environmental Condition,
Design-Builder shall immediately: (i) secure or otherwise isolate such condition; (ii) stop all
work in connection with such condition and in any area affected thereby (except in an
emergency as required by Paragraph 6.16.A); and (iii) verbally notify City (and promptly
thereafter confirm such notice in writing). City may consider the necessity to retain a qualified
expert to evaluate such condition or take corrective action, if any. When the Hazardous
Environmental Condition has been rendered harmless — whether by the Design-Builder,
Contractor or City's separate remediation contractor, the work in the affected area shall resume
upon written notice by the City to Design-Builder. For such verified Hazardous Environmental
Conditions that Design-Builder encounters that are not within Design-Builder's scope of work,
the Contract Time shall be extended appropriately and the Contract Price shall be increased in the
amount of any reasonable costs of shut-down, delay and restart.
E. Design-Builder shall not be required to commence or resume Work in connection with
such condition or in any affected area as described in Paragraph 4.06 C. or D. until after City
has obtained any required permits related thereto and delivered written notice to Design-Builder:
(i) specifying that such condition and any affected area is or has been rendered suitable for the
commencement or resumption of Work; or (ii) specifying any special conditions under which
such Work may be resumed.
F. If after receipt of such written notice Design-Builder does not agree to resume such Work based
on a reasonable belief it is unsafe, or does not agree to resume such Work under such special
conditions, then City may order the portion of the Work that is in the area affected by such
condition to be deleted from the Work. City may have such deleted portion of the Work
performed by City's own forces or others.
G. To the fullest extent permitted by Laws and Regulations, Design-Builder shall indemnify and
hold harmless City,from and against all claims, costs, losses, and damages (including but not
limited to all fees and charges of engineers, architects, attorneys, and other professionals and
all court or arbitration or other dispute resolution costs) arising out of or relating to a
Hazardous Environmental Condition created by Design Builder or by anyone for whom
Design Builder is responsible. Nothing in this Paragraph shall obligate Design Builder to
indemnify any individual or entity from and against the consequences of that individual's or
entity's own negligence.
H. The provisions of Paragraphs 4.02, 4.03, and 4.04 do not apply to a Hazardous Environmental
Condition uncovered or revealed at the Site.
ARTICLE 5—INDEMNITY,BONDS AND INSURANCE
5.01 Indemnification — DESIGN-BUILDER COVENANTS AND AGREES TO, AND DOES
HEREBY ASSUME LIABILITY, INDEMNIFY, HOLD HARMLESS AND DEFEND, AT ITS
OWN EXPENSE, CITY- ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM
AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY DAMAGE OR LOSS
AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF
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WHATSOEVER HIND OR CHARACTER, WHETHER REAL OR ASSERTED, ARISING
OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE WORK TO BE
PERFORMED UNDER THE AGREEMENT, WHETHER OR NOT CAUSED IN WHOLE OR
IN PART BY ANY ACT, OMISSION OR NEGLIGENCE ON THE PART OF THE OFFICERS,
AGENTS, SERVANTS, EMPLOYEES, LICENSEESOR INVITEES OF CITY. DESIGN-
BUILDER LIKEWISE COVENANTS AND AGREES TO, AND DOES HEREBY,
INDEMNIFY AND HOLD CITY HARMLESS FROM AND AGAINST ANY AND ALL
INJURIES, LOSS, OR DAMAGES TO PROPERTY OF CITY ARISING OUT OF OR IN
CONNECTION WITH, DIRECTLY OR INDIRECTLY, THE WORK TO BE PERFORMED
UNDER THE AGREEMENT, WHETHER ARISING OUT OF OR IN CONNECTION WITH OR
RESULTING FROM, IN WHOLE OR IN PART, ANY AND ALL ALLEGED ACTS OR
OMISSIONS OF CITY'S OFFICERS, AGENTS, SERVANTS, EMPLOYEES, LICENSEES OR
INVITEES. THE INTENT OF THIS PARAGRAPH IS TO REQUIRE DESIGN-BUILDER TO
INDEMNIFY THE CITY FOR ITS SOLE OR CONCURRENT NEGLIGENCE.
5.02 Bonds
All bonds and insurance required by the Contract Documents to be purchased and maintained by
Design-Builder shall be obtained from surety or insurance companies that are duly licensed or
authorized in the State of Texas to issue bonds or insurance policies for the limits and coverages so
required. Such surety and insurance companies shall also meet such additional requirements and
qualifications as may be provided in the Supplementary Conditions.
Performance,Payment, and Maintenance Bonds
A. If a fixed contract amount or GMP has not been determined at the time the Agreement
is awarded, the penal sums of the performance and payment bonds must each be in an
amount equal to the construction budget.
B. The Design-Builder shall, not later than the tenth day after the Design-Builder executes the
Agreement, deliver to the City payment and performance bonds or a bid bond or other financial
security acceptable to City to ensure that the Design-Builder will furnish the payment and
performance bonds prior to commencement of the construction Work. No payment or
performance bond is required for the design portion of the Agreement. The payment and
performance bonds shall each be on a form acceptable to the City and in compliance with
Texas Government Code Chapter 2253 and be in the name of the City.
C. Maintenance bond(s), valid for two years from the Substantial Completion date of the
construction Work, shall be procured and provided by the Design-Builder to City prior to final
acceptance of the Work. Maintenance bond(s) shall be on a form acceptable to and in the name
of and in favor of the City.
D. All payment, performance and maintenance bonds issued shall be provided by a surety in
accordance with Texas Gov't Code 2253. No sureties will be accepted by the City that are at
the time of issuance in default or delinquent on any bonds or which are interested in any
litigation against the City. Should any surety on the contract be determined unsatisfactory at
any time by the City, notice will be given to the Design-Builder to that effect and the Design-
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Builder shall immediately provide a new surety and bonds satisfactory to the City. All bonds
signed by an agent or attorney-in-fact must be accompanied by a sealed and dated power of
attorney which shall show that it is effective on the date the agent or attorney-in-fact signed each
bond.
E. If the surety on any bond furnished by Design-Builder is declared bankrupt or becomes insolvent
or its right to do business in the State of Texas is terminated or it ceases to meet the requirements
of Paragraph 5.02.D, Design-Builder shall promptly notify City and shall, within 30 days after
the event giving rise to such notification, provide another bond and surety, both of which shall
comply with the requirements of Paragraphs 5.01 and 5.02.D.
5.03 Certificates of Insurance
Design-Builder shall deliver to City, with copies to each additional insured and loss payee identified
in the Supplementary Conditions, certificates of insurance (and other evidence of insurance
requested by City or any other additional insured) which Design-Builder is required to purchase and
maintain.
1. The certificate of insurance shall document the City, and all identified entities named in the
Supplementary Conditions as"Additional Insured"on all liability policies.
2. The Design-Builder's general liability insurance shall include a, "per project" or "per
location", endorsement, which shall be identified in the certificate of insurance provided to
the City.
3. The certificate shall be signed by an agent authorized to bind coverage on behalf of the
insured, be complete in its entirety, and show complete insurance carrier names as listed in
the current A.M. Best Property&Casualty Guide
4. The insurers for all policies must be licensed and/or approved to do business in the State of
Texas. Except for workers' compensation, all insurers must have a minimum rating of A-:
VII in the current A. M. Best Key Rating Guide or have reasonably equivalent financial
strength and solvency to the satisfaction of Risk Management. If the rating is below that
required,written approval of City is required.
5. All applicable policies shall include a Waiver of Subrogation (Rights of Recovery) in favor
of the City and each additional insured identified in the Supplementary Conditions.
6. Failure of the City to demand such certificates or other evidence of full compliance with the
insurance requirements or failure of the City to identify a deficiency from evidence that is
provided shall not be construed as a waiver of Design-Builder's obligation to maintain such
lines of insurance coverage.
7. If insurance policies are not written for specified coverage limits, an Umbrella or Excess
Liability insurance for any differences is required. Excess Liability shall follow form of the
primary coverage.
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8. Unless otherwise stated, all required insurance shall be written on the "occurrence basis". If
coverage is underwritten on a claims-made basis, the retroactive date shall be coincident with
or prior to the date of the effective date of the agreement and the certificate of insurance shall
state that the coverage is claims-made and the retroactive date. The insurance coverage shall
be maintained for the duration of the Agreement and for three (3) years following
Final Acceptance provided under the Contract Documents or for the warranty period,
whichever is longer. An annual certificate of insurance submitted to the City shall evidence
such insurance coverage.
9. Policies shall have no exclusions by endorsements which neither nullify or amend the
required lines of coverage, nor decrease the limits of said coverage unless such endorsements
are approved in writing by the City. In the event the City desires additional insurance
coverage, and the City desires the Design-Builder to obtain such coverage, the contract price
shall be adjusted by the cost of the premium for such additional coverage plus 10%.
10. Any self-insured retention (SIR) in excess of $25,000.00 affecting required insurance
coverage shall be approved by the City in regards to asset value and stockholders' equity. In
lieu of traditional insurance, alternative coverage maintained through insurance pools or risk
retention groups,must also be approved by City.
11. City, at its sole discretion, reserves the right to review the insurance requirements and to
make reasonable adjustments to insurance coverages and their limits when deemed necessary
and prudent by the City based upon changes in statutory law, court decision or the claims
history of the industry as well as of the contracting party to the City. The City shall be
required to provide prior notice of 90 days, and the insurance adjustments shall be
incorporated into the Agreement by amendment.
12. City shall be entitled, upon written request and without expense, to receive copies of policies
and endorsements thereto.
13. City shall not be responsible for the direct payment of insurance premium costs for
Contractor's insurance.
5.04 Categories of Insurance
A. Workers Compensation and Employers' Liability. Design-Builder shall purchase and maintain
such insurance coverage with limits consistent with statutory benefits outlined in the Texas
Workers' Compensation Act (Texas Labor Code, Ch. 406, as amended), and minimum limits for
Employers' Liability as is appropriate for the Work being performed and as will provide
protection from claims set forth below which may arise out of or result from Design-Builder's
performance of the Work and Design-Builder's other obligations under the Contract Documents,
whether it is to be performed by Design-Builder, Contractor, any Subcontractor or Supplier, or
by anyone directly or indirectly employed by any of them to perform any of the Work, or by
anyone for whose acts any of them may be liable for:
1. claims under workers' compensation, disability benefits, and other similar employee benefit
acts;
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2. claims for damages because of bodily injury, occupational sickness or disease, or death of
Contractor's employees.
B. Commercial General Liability. Coverage shall include but not be limited to covering liability
(bodily injury or property damage) arising from: premises/operations, independent contractors,
products/completed operations, personal injury, and liability under an insured contract. Insurance
shall be provided on an occurrence basis, and as comprehensive as the current Insurance Services
Office (ISO) policy. This insurance shall apply as primary insurance with respect to any other
insurance or self-insurance programs afforded to the City. The Commercial General Liability
policy, shall have no exclusions by endorsements that would alter of nullify premises/operations,
products/completed operations, contractual, personal injury, or advertising injury, which are
normally contained with the policy, unless the City approves such exclusions in writing.
For construction projects that present a substantial completed operation exposure, the City may
require the Design-Builder to maintain completed operations coverage for a minimum of no less
than three (3) years following the completion of the project (if identified in the Supplementary
Conditions).
C. Automobile Liability. A commercial business auto policy shall provide coverage on "any auto",
defined as autos owned, hired and non-owned and provide indemnity for claims for damages
because bodily injury or death of any person and or property damage arising out of the work,
maintenance or use of any motor vehicle by the Design-Builder, Contractor, any Subcontractor
or Supplier, or by anyone directly or indirectly employed by any of them to perform any of the
Work, or by anyone for whose acts any of them may be liable.
D. Railroad Protective Liability. If any of the work or any warranty work is within the limits of
railroad right-of-way, the Design-Builder shall comply with the requirements identified in the
Supplementary Conditions.
E. Notification of Policy Cancellation: Design-Builder shall immediately notify City upon
cancellation or other loss of insurance coverage. Design-Builder shall stop work until
replacement insurance has been procured. There shall be no time credit for days not worked
pursuant to this section.
5.05 Insurance Requirements
A. Design Services:
1. Design-Builder shall not commence work under this Agreement until it has obtained all insurance
required as specified herein and the City has approved such insurance.
Commercial General Liability
$1,000,000 each occurrence
$1,000,000 aggregate
Automobile Liability
$1,000,000 each accident (or reasonably equivalent limits of coverage if written on a split
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limits basis). Coverage shall be on any vehicle used in the course of the Project.
Worker's Compensation
Coverage A: statutory limits
Coverage B: $100,000 each accident
$500,000 disease-policy limit
$100,000 disease-each employee
2. Additional Insurance Requirements
a. Except for employer's liability insurance coverage under Design-Builder's worker's
compensation insurance policy, the City, its officers, employees and servants shall be
endorsed as an additional insured on Design-Builder's insurance policies.
b. Certificates of insurance shall be delivered to the City's Project Manager at the address
specified prior to commencement of Work.
c. Any failure on part of the City to request required insurance documentation shall not
constitute a waiver of the insurance requirements specified herein.
d. Each insurance policy shall be endorsed to provide the City a minimum thirty days' notice of
cancellation, non-renewal, and/or material change in policy terms or coverage. A ten days'
notice shall be acceptable in the event of non-payment of premium.
e. Insurers must be authorized to do business in the State of Texas and have a current A.M. Best
rating of A: VII or equivalent measure of financial strength and solvency.
f. Other than worker's compensation insurance, in lieu of traditional insurance, City may
consider alternative coverage or risk treatment measures through insurance pools or
risk retention groups. The City must approve in writing any alternative coverage.
g. Workers' compensation insurance policy(s) covering employees employed on the Project
shall be endorsed with a waiver of subrogation providing rights of recovery in favor of the
City.
h. Design-Builder's insurance policies shall each be endorsed to provide that such insurance is
primary protection and any self-funded or commercial coverage maintained by City shall not
be called upon to contribute to loss recovery.
i. In the course of the Agreement, Design-Builder shall report, in a timely manner, to City's
Project Manager any known loss occurrence which could give rise to a liability claim or
lawsuit or which could result in a property loss.
j. Design-Builder's liability shall not be limited to the specified amounts of insurance required
herein.
B. Construction Phase:
The limits of liability for the required insurance shall provide the following coverages for not
less than the following amounts or greater where required by laws and regulations:
Workers' Compensation:
Statutory limits
Employer's liability
$100,000 each accident/occurrence
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$100,000 Disease - each employee
$500,000 Disease -policy limit
Commercial General Liability:
Commercial General Liability shall be on a per project basis covering the Design-Builder
with minimum limits o£
$1,000,000 each occurrence
$2,000,000 aggregate limit
The policy must have an endorsement (Amendment—Aggregate Limits of Insurance)
making the General Aggregate Limits apply separately to each job site or each work package,
if more than one.
The Commercial General Liability Insurance policies shall provide "X", "C", and"U"
coverage's. Verification of such coverage must be shown in the Remarks Article of the
Certificate of Insurance.
Automobile Liability:
A commercial business policy shall provide coverage on "Any Auto", defined as autos
owned, hired and non-owned and shall be in an amount not less than the following amounts:
$1,000,000 each accident on a combined single limit basis. Split limits are acceptable if
limits are at least:
$250,000 Bodily Injury per person/
$500,000 Bodily Injury per accident/
$100,000 Property Damage
5.06 Acceptance of Bonds and Insurance; Option to Replace
If City has any objection to the coverage afforded by or other provisions of the bonds or insurance
required to be purchased and maintained by the Design-Builder in accordance with this Article 5 on
the basis of non-conformance with the Contract Documents, the City shall so notify the Design-
Builder in writing within 10 Business Days after receipt of the certificates (or other evidence
requested). Design-Builder shall provide to the City such additional information in respect of
insurance provided as the City may reasonably request. If Design-Builder does not purchase or
maintain all of the bonds and insurance required by the Contract Documents, the City shall notify
the Design-Builder in writing of such failure prior to the start of the Work, or of such failure to
maintain prior to any change in the required coverage.
ARTICLE 6—DESIGN-BUILDER'S RESPONSIBILITIES
6.01 Supervision and Superintendence
A. Design-Builder shall supervise, inspect, and direct the Work competently and efficiently,
devoting such attention thereto and applying such skills and expertise as may be necessary to
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perform the Work in accordance with the Contract Documents. Design-Builder shall be solely
responsible for the means, methods, techniques, sequences, and procedures of construction.
Design-Builder shall be responsible for the proper performance of the Work, including all work
performed by its subcontractors, and any acts and omissions in connection with such
performance.
B. At all times during the progress of the Work, Design-Builder or its Contractor shall assign a
competent, English- speaking, Superintendent who shall not be replaced without written notice
to City. The Superintendent will be Design-Builder's representative at the Site and shall have
authority to act on behalf of Design-Builder. All communication given to or received from the
Superintendent shall be binding on Design-Builder or its Contractor.
C. Design-Builder shall notify the City 72 hours prior to moving on site for the commencement of
construction Work.
6.02 Labor; Working Hours
A. Design-Builder shall provide competent, suitably qualified personnel to perform construction as
required by the Contract Documents. Design-Builder shall at all times maintain good discipline
and order at the Site.
B. Except as otherwise required for the safety or protection of persons or the Work or property at
the Site or adjacent thereto, and except as otherwise stated in the Contract Documents, all Work
at the Site shall be performed during Regular Working Hours. Design-Builder will not permit
the performance of Work beyond Regular Working Hours or for Weekend Working Hours
without City's written consent (which will not be unreasonably withheld). Written request (by
letter or electronic communication)to perform Work:
1. for beyond Regular Working Hours request must be made by noon at least two (2) Business
Days prior;
2. for Weekend Working Hours request must be made by noon of the preceding Thursday;
3. for legal holidays request must be made by noon two Business Days prior to the legal
holiday.
6.03 Services, Materials, and Equipment
A. Unless otherwise specified in the Contract Documents, Design-Builder shall provide and assume
full responsibility for all services, materials, equipment, labor, transportation, construction
equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary
facilities, temporary facilities, and all other facilities and incidentals necessary for the
performance, required testing, start-up, and completion of the Work.
B. All materials and equipment incorporated into the Work shall be as specified or, if not specified,
shall be of good quality and new, except as otherwise provided in the Contract Documents. All
special warranties and guarantees required by the Specifications shall expressly run to the benefit
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of City. If required by City, Design-Builder shall furnish satisfactory evidence (including reports
of required tests) as to the source,kind, and quality of materials and equipment.
C. All materials and equipment to be incorporated into the Work shall be stored, applied, installed,
connected, erected, protected, used, cleaned, and conditioned in accordance with instructions of
the applicable Supplier, except as otherwise may be provided in the Contract Documents.
Design-Builder shall collect written warranties as defined in the Contract Documents from
manufacturers, as well as all equipment manuals, and deliver them to the City for the City's
use. To the extent that products, equipment, systems or materials incorporated into the Work
are covered by a warranty from the manufacturer of such products, equipment, systems or
material in excess of one year, the City's remedy to correct the defective products, equipment,
systems, or materials after the one-year period shall be exclusively against the warranty of the
manufacturer.
D. All items of standard equipment to be incorporated into the Work shall be the latest model at the
time of the Agreement,unless otherwise specified.
6.04 Project Schedule
A. Design-Builder agrees to timely commence construction to substantially complete the Work
within the Contract Time. Design-Builder shall provide all necessary construction labor,
materials, tools, equipment, as well as all construction supervision, inspection, and temporary
utilities as required to complete the Work pursuant to the Construction Documents and shall
adhere to the Project Schedule established in accordance with Paragraph 2.04 and the General
Requirements as it may be adjusted from time to time as provided below.
1. Design-Builder shall submit to City for acceptance (to the extent indicated in Paragraph 2.04
and the General Requirements) proposed adjustments in the Project Schedule that will not
result in changing the Contract Time. Such adjustments will comply with any provisions of
the General Requirements applicable thereto.
2. Design-Builder shall submit to City a monthly Project Schedule with a monthly progress
payment for the duration of the Agreement in accordance with the schedule specification 01
3216.
3. Proposed adjustments in the Project Schedule that will change the Contract Time shall be
submitted in accordance with the requirements of Article 12. Adjustments in Contract Time
may only be made by a Change Order.
6.05 Concerning Subcontractors, Suppliers, and Others
A. Business Diversity Enterprise Ordinance Compliance: It is a City requirement to ensure the full
and equitable participation by Minority and Small Business Enterprises (MBE) (SBE) in the
procurement of goods and services pursuant to the Business Diversity Enterprise Ordinance. If
the Contract Documents provide for an MBE and/or SBE goal, Design-Builder is required to
comply with the City's Business Diversity Ordinance by doing the following:
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1. Design-Builder shall provide complete and accurate information regarding actual work
performed by an MBE and/or SBE and payment therefor.
2. Design-Builder's failure to make payments as provided by state law shall, in addition to any
other remedies provided by law, authorize City to withhold future payments and/or reject
future bids from the CMAR or Contractor until compliance with the Business Diversity
Enterprise Ordinance is attained.
3. Design-Builder will not make additions, deletions, or substitutions of accepted MBE/SBE
firms without written consent of the City. Any unjustified change or deletion shall be a
material breach of the Agreement and may result in disciplinary action in accordance with
the procedures outlined in the Business Diversity Enterprise Ordinance.
4. Design-Builder shall, upon request by City, allow an audit and/or examination of any books,
records, or files in the possession of the Design-Builder that will substantiate the actual work
performed by an MBE and/or SBE. Material misrepresentation of any nature may be grounds
for termination of the Agreement in accordance with Paragraph 15.02.A. Any such
misrepresentation may subject Design-Builder to disciplinary action in accordance with the
procedures outlined in the Business Diversity Enterprise Ordinance.
B. Design-Builder shall be fully responsible to City for all acts and omissions of the
Contractor, Subcontractors, Suppliers, and other individuals or entities performing or
furnishing any of the Work just as Design-Builder is responsible for Design-Builder's own acts
and omissions. Nothing in the Contract Documents shall:
1. create for the benefit of any such Contractor, Subcontractor, Supplier, or other individual
or entity, any contractual relationship between City and any such Contractor, Subcontractor,
Supplier or other individual or entity; nor
2. create any obligation on the part of City to pay or to see to the payment of any moneys due
any such Contractor, Subcontractor, Supplier, or other individual or entity except as may
otherwise be required by Laws and Regulations.
C. Design-Builder shall be solely responsible for scheduling and coordinating the Work of
Contractor, Subcontractors, Suppliers, and other individuals or entities performing or furnishing
any of the Work under a direct or indirect contract with Design-Builder.
D. All Contractor(s), Subcontractors, Suppliers, and such other individuals or entities performing or
furnishing any of the Work shall communicate with City through Design-Builder.
E. All Work performed for Design-Builder by a Subcontractor or Supplier will be pursuant to an
appropriate agreement between Design-Builder and the Subcontractor or Supplier which
specifically binds the Subcontractor or Supplier to the applicable terms and conditions of the
Contract Documents for the benefit of City.
6.06 Wage Rates
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A. Duty to pay Prevailing Wage Rates. The Design-Builder shall comply with all
requirements of Chapter 2258, Texas Government Code (as amended), including the payment of
not less than the rates determined by the City Council of the City of Fort Worth to be the
prevailing wage rates in accordance with Chapter 2258. Such prevailing wage rates are included
in these Contract Documents.
B. Penalty for Violation. Design-Builder, Contractor or any Subcontractor who does not pay the
prevailing wage shall, upon demand made by the City, pay to the City $60 for each worker
employed for each calendar day or part of the day that the worker is paid less than the prevailing
wage rates stipulated in the Contract Documents. This penalty shall be retained by the City to
offset its administrative costs,pursuant to Texas Government Code 2258.023.
C. Complaints of Violations and City Determination of Good Cause. On receipt of information,
including a complaint by a worker, concerning an alleged violation of 2258.023, Texas
Government Code, by a Contractor or Subcontractor, the City shall make an initial
determination, before the 31 st day after the date the City receives the information, as to whether
good cause exists to believe that the violation occurred. The City shall notify in writing the
Design-Builder, Contractor or Subcontractor and any affected worker of its initial determination.
Upon the City's determination that there is good cause to believe the Design-Builder, Contractor
or Subcontractor has violated Chapter 2258, the City shall retain the full amounts claimed by the
claimant or claimants as the difference between wages paid and wages due under the prevailing
wage rates, such amounts being subtracted from successive progress payments pending a final
determination of the violation.
D. Arbitration Required if Violation Not Resolved. An issue relating to an alleged violation of
Section 2258.023, Texas Government Code, including a penalty owed to the City or an affected
worker, shall be submitted to binding arbitration in accordance with the Texas General
Arbitration Act (Civil Practice and Remedies Code Chapter 171 et seq.) if the Design-Builder,
Contractor or Subcontractor and any affected worker does not resolve the issue by agreement
before the 15th day after the date the City makes its initial determination pursuant to Paragraph
C above. If the persons required to arbitrate under this section do not agree on an arbitrator
before the IIth day after the date that arbitration is required, a district court shall appoint an
arbitrator on the petition of any of the persons. The City is not a party in the arbitration. The
decision and award of the arbitrator is final and binding on all parties and may be enforced in
any court of competent jurisdiction.
E. Records to be Maintained. The Design-Builder, Contractor and each Subcontractor shall, for a
period of three (3) years following the date of acceptance of the work, maintain records that
show (i) the name and occupation of each worker employed by the Design-Builder, Contractor
or Subcontractor in the construction of the Work provided for in this Agreement; and (ii) the
actual per diem wages paid to each worker. The records shall be open at all reasonable hours for
inspection by the City. The provisions of Paragraph 6.23, Right to Audit, shall pertain to this
inspection.
F. Progress Payments. With each progress payment or payroll period, whichever is more frequent,
the Design-Builder shall submit an affidavit stating that the Design-Builder has complied with
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the requirements of Chapter 2258, Texas Government Code.
G. Posting of Wage Rates. The Design-Builder shall post prevailing wage rates in a conspicuous
place at all times.
H. Subcontractor Compliance. A Contractor shall include in its subcontracts and/or shall otherwise
require all of its Subcontractors to comply with Paragraphs A through G above.
6.07 Patent Fees and Royalties
A. Design-Builder shall pay all license fees and royalties and assume all costs incident to the use in
the performance of the Work or the incorporation in the Work of any invention, design, process,
product, or device which is the subject of patent rights or copyrights held by others. If a
particular invention, design, process, product, or device is specified in the Contract Documents
for use in the performance of the Work and if, to the actual knowledge of City, its use is subject
to patent rights or copyrights calling for the payment of any license fee or royalty to others, the
existence of such rights shall be disclosed by City in the Contract Documents. Failure of the City
to disclose such information does not relieve the Contractor from its obligations to pay for the
use of said fees or royalties to others.
B. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and
hold harmless City, from and against all claims, costs, losses, and damages (including but
not limited to all fees and charges of engineers, architects, attorneys, and other
professionals and all court or arbitration or other dispute resolution costs) arising out of or
relating to any infringement of patent rights or copyrights incident to the use in the
performance of the Work or resulting from the incorporation in the Work of any
invention, design, process, product, or device not specified in the Contract Documents.
6.08 Permits and Utilities
A. Design-Builder obtained permits and licenses. Design-Builder shall obtain and pay for all
construction permits and licenses except those provided for below, in the Supplementary
Conditions, or Contract Documents. City shall assist Design-Builder, when necessary, in
obtaining such permits and licenses. Design-Builder shall pay all governmental charges and
inspection fees necessary for the prosecution of the Work which are applicable at the time of the
Effective Date of the Agreement, except for permits provided by the City as specified in 6.09.13.
City shall pay all charges of utility owners for connections providing permanent service to the
Work.
B. City obtained permits and licenses. City will obtain and pay for all permits and licenses as
provided for below, in the Supplementary Conditions, or Contract Documents. It will be the
Design-Builder's responsibility to carry out the provisions of the permit. If the Design-Builder
initiates changes to the Work beyond the scope of any City-acquired permit, the Contractor is
responsible for obtaining clearances and coordinating with the appropriate regulatory agency.
The City will not reimburse the Contractor for any cost associated with these additional
requirements of any City-acquired permit. The following are permits the City will obtain if
required:
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1. Texas Department of Transportation Permits
2. U.S. Army Corps of Engineers Permits
3. Texas Commission on Environmental Quality Permits
4. Railroad Company Permits
6.09 Laws and Regulations
A. Design-Builder shall give all notices required by and shall comply with all Laws and
Regulations applicable to the performance of the Work. Except where otherwise expressly
required by applicable Laws and Regulations, the City shall not be responsible for monitoring
Design-Builder's compliance with any Laws or Regulations.
B. If Design-Builder performs any Work knowing that it is contrary to Laws or Regulations, Design-
Builder shall bear all claims, costs, losses, and damages (including but not limited to all fees and
charges of engineers, architects, attorneys, and other professionals and all court, arbitration, or
other dispute resolution costs) arising out of or relating to such Work.
C. Changes in Laws or Regulations not known at the time of the execution of the Agreement
having an effect on the cost or time of performance of the Work may be the subject of an
adjustment in Contract Price or Contract Time.
6.10 Taxes
A. On a contract awarded by the City, an organization which qualifies for exemption pursuant to
Texas Tax Code, Subchapter H, Sections 151.301-335 (as amended), the Design-Builder may
purchase, rent or lease all materials, supplies and equipment used or consumed in the
performance of this contract by issuing to his supplier an exemption certificate in lieu of the tax,
said exemption certificate to comply with State Comptroller's Ruling .007. Any such exemption
certificate issued to the Design-Builder in lieu of the tax shall be subject to and shall comply
with the provision of State Comptroller's Ruling .011, and any other applicable rulings
pertaining to the Texas Tax Code, Subchapter H.
B. Texas Tax permits and information may be obtained from:
1. Comptroller of Public Accounts
Sales Tax Division
Capitol Station
Austin, TX 78711; or
2. http://www.window.state.tx.us/taxinfo/taxforms/93-forms.html
6.11 Use of Site and Other Areas
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A. Limitation on Use of Site and Other Areas:
1. Design-Builder shall confine construction equipment, the storage of materials and equipment,
and the operations of workers to the Site and other areas permitted by Laws and Regulations,
and shall not unreasonably encumber the Site and other areas with construction equipment or
other materials or equipment. Design-Builder shall assume full responsibility for any damage
to any such land or area, or to the owner or occupant thereof, or of any adjacent land or areas
resulting from the performance of the Work.
2. At any time when, in the judgment of the City, the Design-Builder has obstructed or closed
or is carrying on operations in a portion of a street, right-of-way, or easement greater than is
necessary for proper execution of the Work, the City may require the Design-Builder to
finish the section on which operations are in progress before work is commenced on any
additional area of the Site.
3. Should any Damage Claim be made by any such owner or occupant because of the
performance of the Work, Design-Builder shall promptly attempt to resolve the Damage
Claim.
4. Pursuant to Paragraph 5.01, Design Builder shall indemnify and hold harmless City from
and against all claims, costs, losses, and damages arising out of or relating to any claim or
action, legal or equitable, brought by any such owner or occupant against City.
B. Removal of Debris During Performance of the Work: During the progress of the Work Design-
Builder shall keep the Site and other areas free from accumulations of waste materials, rubbish,
and other debris. Removal and disposal of such waste materials, rubbish, and other debris shall
conform to applicable Laws and Regulations.
C. Site Maintenance Cleaning: 24-hours after written notice is given to the Design-Builder that
the clean-up on the job site is proceeding in a manner unsatisfactory to the City, and if the
Design-Builder fails to correct the unsatisfactory procedure, the City may take such direct action
as the City deems appropriate to correct the clean-up deficiencies cited to the Design-
Builder in the written notice (by letter or electronic communication), and the costs of such direct
action, plus 25 % of such costs, shall be deducted from the monies due or to become due to the
Design-Builder.
D. Final Site Cleaning: Prior to Final Acceptance of the Work, Design-Builder shall clean the Site
and the Work and make it ready for utilization by City or any affected adjacent property owner.
At the completion of the Work, Design-Builder shall remove from the Site all tools, appliances,
construction equipment and machinery, and surplus materials and shall restore to original
condition or better all property disturbed by the Work.
E. Loading Structures: Design-Builder shall not load nor permit any part of any structure to be
loaded in any manner that will endanger the structure, nor shall Design-Builder subject any part
of the Work or adjacent property to stresses or pressures that will endanger it.
6.12 Record Documents
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A. Design-Builder shall maintain in a safe place at the Site or in a place designated by the Design-
Builder and approved by the City, one (1) record copy of all Drawings, Specifications, Addenda,
Change Orders, Field Orders, and written interpretations and clarifications in good order and
annotated to show changes made during construction. These record documents together with all
approved Samples and a counterpart of all accepted Submittals will be available to City for
reference. Upon completion of the Work, these record documents, any operation and
maintenance manuals and Submittals will be delivered to City prior to Final Inspection. Design-
Builder shall include accurate locations for buried and imbedded items.
6.13 Safety and Protection
A. Design-Builder shall be solely responsible for initiating, maintaining and supervising all safety
precautions and programs in connection with the Work. Such responsibility does not relieve a
Contractor or Subcontractor(s) of their responsibility for the safety of persons or property in the
performance of their work, nor for compliance with applicable safety Laws and Regulations.
Design-Builder shall take all necessary precautions for the safety of, and shall provide the
necessary protection to prevent damage, injury or loss to:
1. all persons on the Site or who may be affected by the Work;
2. all the Work and materials and equipment to be incorporated therein, whether in storage on
or off the Site; and
3. other property at the Site or adjacent thereto, including trees, shrubs, lawns, walks,
pavements, roadways, structures, utilities, and Underground Facilities not designated for
removal,relocation, or replacement in the course of construction of the Work.
B. Design-Builder shall comply with all applicable Laws and Regulations relating to the
safety of persons or property, or to the protection of persons or property from damage, injury, or
loss; and shall erect and maintain all necessary safeguards for such safety and protection.
Design-Builder shall notify owners of adjacent property and owners of Underground Facilities
and other utility owners when prosecution of the Work may affect them and shall cooperate with
them in the protection, removal,relocation, and replacement of their property.
C. Design-Builder shall comply with the applicable requirements of City's safety programs, if
any.
D. Design-Builder shall inform City of the specific requirements of Design-Builder's safety
program, if any,with which City's employees and representatives must comply while at the Site.
E. All damage, injury, or loss to any property referred to in Paragraph 6.13.A.2 or 6.13.A.3 caused,
in whole or in part, by Design-Builder, Contractor, any Subcontractor, Supplier, or any other
individual or entity employed by any of them to perform any of the Work, or anyone for whose
acts any of them may be liable, shall be remedied by Design-Builder.
F. Design-Builder's duties and responsibilities for safety and for protection of the Work shall
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continue until such time as all the Work is completed and City has accepted the Work.
6.14 Safety Representative
Design-Builder shall inform City in writing of Design-Builder's designated safety representative
at the Site.
6.15 Hazard Communication Programs
Design-Builder shall be responsible for coordinating any exchange of material safety data sheets or
other hazard communication information required to be made available to or exchanged between or
among employers in accordance with Laws or Regulations.
6.16 Emergencies and/or Rectification
A. In emergencies affecting the safety or protection of persons or the Work or property at the Site or
adjacent thereto, Design-Builder is obligated to act to prevent threatened damage, injury, or loss.
Design-Builder shall give City prompt written notice if Design-Builder believes that any
significant changes in the Work or variations from the Contract Documents have been caused
thereby or are required as a result thereof. If City determines that a change in the Contract
Documents is required because of the action taken by Design-Builder in response to such an
emergency, a Change Order may be issued.
B. Should the Design-Builder fail to respond to a request from the City to rectify any
discrepancies, omissions, or correction necessary to conform with the requirements of the
Contract Documents, the City shall give the Design-Builder written notice that such work or
changes are to be performed. The written notice shall direct attention to the discrepant condition
and request the Design-Builder to take remedial action to correct the condition. In the event the
Design-Builder does not take positive steps to fulfill this written request, or does not show just
cause for not taking the proper action, within 24 hours, the City may take such remedial action
with City forces or by contract. The City shall deduct an amount equal to the entire costs for
such remedial action, plus 25%, from any funds due or become due the Design-Builder on the
Project.
6.17 Submittals and Samples
A. Design-Builder shall submit required Submittals and Samples to City for review and
acceptance. Each Submittal or Sample shall be uniquely identified.
1. Submit three copies of any Submittal unless otherwise specified in the Supplemental
Conditions.
2. Data shown on the Submittals will be complete with respect to quantities, dimensions,
specified performance and design criteria, materials, and similar data to show City the
services, materials, and equipment Design-Builder proposes to provide and to enable City to
review the information for the limited purposes required by Paragraph 6.17.C.
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3. Submittals submitted as herein provided by Design-Builder and reviewed by City for
conformance with the design concept shall be executed in conformity with the Contract
Documents unless otherwise required by City.
4. When Submittals are submitted for the purpose of showing the installation in greater detail,
their review shall not excuse Design-Builder from requirements shown on the Drawings and
Specifications.
5. For-Information-Only Submittals upon which the City is not expected to conduct review or
take responsive action shall be so identified.
6. Submit required number of Samples as specified in the Supplemental Conditions.
7. Clearly identify each Sample as to material, Supplier, pertinent data such as catalog numbers,
the use for which intended and other data as City may require to enable City to review the
submittal for the limited purposes required by Paragraph 6.17.C.
B. Where a Submittal is required by the Contract Documents or the Schedule of Submittals, any
related Work performed prior to City's review and acceptance of the pertinent submittal will be
at the sole expense and responsibility of Design-Builder.
C. City's Review:
1. City will provide timely review of Submittals. City's review and acceptance will be only to
determine if the items covered by the Submittals will, after installation or incorporation in
the Work, conform to the information given in the Contract Documents and be compatible
with the design concept of the completed Project as a functioning whole.
2. City's review and acceptance will not extend to means, methods, techniques, sequences, or
procedures of construction (except where a particular means, method, technique, sequence,
or procedure of construction is specifically and expressly called for by the Contract
Documents) or to safety precautions or programs incident thereto. The review and acceptance
of a separate item as such will not indicate approval of the assembly in which the item
functions.
3. City's review and acceptance shall not relieve Contractor from responsibility for any
variation from the requirements of the Contract Documents unless Contractor has complied
with the requirements of Section 01 33 00 and City has given written acceptance of each
such variation by specific written notation thereof incorporated in or accompanying the
Submittal. City's review and acceptance shall not relieve Contractor from responsibility for
complying with the requirements of the Contract Documents.
6.18 Continuing the Work
Except as otherwise provided, Design-Builder shall carry on the Work and adhere to the Project
Schedule during all disputes or disagreements with City. No Work shall be delayed or postponed
pending resolution of any disputes or disagreements, except as City and Design-Builder may
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otherwise agree in writing.
6.19 Design-Builder's General Warranty and Guarantee
A. Design-Builder warrants and guarantees to City that all Work will be in accordance with the
Contract Documents and will not be defective. City and its officers, directors, members,partners,
employees, agents, consultants, and subcontractors shall be entitled to rely on representation of
Design-Builder's warranty and guarantee.
B. Design-Builder's warranty and guarantee hereunder excludes defects or damage
caused by:
1. abuse, modification, or improper maintenance or operation by persons other than Design-
Builder, Contractor, Subcontractors, Suppliers, or any other individual or entity for whom
Design-Builder is responsible; or
2. normal wear and tear under normal usage.
C. Design-Builder's obligation to perform and complete the Work in accordance with the Contract
Documents shall be absolute. None of the following will constitute an acceptance of Work that is
not in accordance with the Contract Documents nor act as a release of Design-Builder's
obligation to perform the Work in accordance with the Contract Documents:
1. observations by City;
2. recommendation or payment by City of any progress or final payment;
3. the issuance of a certificate of Substantial Completion or Final Acceptance by City or
any payment related thereto by City;
4. use or occupancy of the Work or any part thereof by City;
5. any review and acceptance of a Submittal by City;
6. any inspection,test, or approval by others; or
7. any correction of Defective Work by City.
D. The Design-Builder shall remedy any defects or damages in the Work that was not performed
in accordance with the Contract Documents, and pay for any damage to other work or property
resulting therefrom which shall appear within a period of two (2) years from the date of
Substantial Completion of the Work and shall furnish a good and sufficient maintenance
bond, complying with the requirements of Article 5.02.C. The City will give notice of
observed defects with reasonable promptness.
6.20 Professional Design Services
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A. City shall be entitled to rely upon the adequacy, accuracy and completeness of the services,
certifications or approvals performed by Design-Builder's design professionals.
D. Pursuant to this Paragraph 6.20, City's review, if any, of design calculations and design
drawings will be only for the limited purpose of checking for conformance with performance and
design criteria given and the design concept expressed in the Contract Documents. City's review
and acceptance of Submittals (except design calculations and design drawings) will be only for
the purpose stated in Paragraph 6.17.C.
6.21 Right to Audit
A. The Design-Builder agrees that the City shall, until the expiration of three (3) years after
final payment under this Agreement, have access to and the right to examine and photocopy any
directly pertinent books, documents, papers, and records of the Design-Builder involving
transactions relating to this Agreement, except that any lump sum amounts or agreed-upon rates
shall not be subject to audit. Design-Builder agrees that the City shall have access during Regular
Working Hours to all necessary Design-Builder facilities and shall be provided adequate and
appropriate work space in order to conduct audits in compliance with the provisions of this
Paragraph. The City shall give Design-Builder reasonable advance notice of intended audits.
B. Design-Builder further agrees to include in all its subcontracts hereunder a provision to the effect
that the Contractor or Subcontractor(s) agree that the City shall, until the expiration of three (3)
years after final payment under this Agreement, have access to and the right to examine and
photocopy any directly pertinent books, documents, papers, and records of such Contractor or
Subcontractor, involving transactions to the subcontract (except that any lump sum amounts or
agreed-upon rates shall not be subject to audit), and further, that City shall have access during
Regular Working Hours to all Contractor or Subcontractor facilities, and shall be provided
adequate and appropriate work space in order to conduct audits in compliance with the
provisions of this Paragraph. The City shall give Contractor or Subcontractor reasonable advance
notice of intended audits.
C. Design-Builder, Contractor and Subcontractor agree to photocopy such documents as may be
requested by the City. The City agrees to reimburse Design-Builder, Contractor or Subcontractor
for the cost of the copies at the rate published in the Texas Administrative Code in effect as of
the time copying is performed.
6.22 Nondiscrimination
A. The City is responsible for operating Public Transportation Programs and implementing transit-
related projects, which are funded in part with Federal financial assistance awarded by the U.S.
Department of Transportation and the Federal Transit Administration (FTA), without
discriminating against any person in the United States on the basis of race, color, or national
origin.
B. Title VI, Civil Rights Act of 1964 (the "Act') as amended: Design-Builder shall comply with the
requirements of the Act and the Regulations as further defined in the Supplementary Conditions
for any project receiving Federal assistance.
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ARTICLE 7—OTHER WORK AT THE SITE
7.01 Related Work at Site
A. City may perform other work related to the Project at the Site with City's employees, or other
City contractors, or through other direct contracts therefor, or have other work performed by
utility owners; and such other contractors shall be responsible for procuring their own property,
liability or workers compensation insurance, and Design-Builder shall be named as primary
additional insured on such policies (except workers compensation), and such policies shall
include a waiver of subrogation in favor of Design-Builder. If such other work is not noted in the
Contract Documents, then written notice thereof will be given to Design-Builder prior to starting
any such other work.
B. Design-Builder shall afford each other contractor who is a party to such a direct contract, each
utility owner, and City, if City is performing other work with City's employees or other City
contractors, proper and safe access to the Site, provide a reasonable opportunity for the
introduction and storage of materials and equipment and the execution of such other work, and
properly coordinate the Work with theirs. Design-Builder shall do all cutting, fitting, and
patching of the Work that may be required to properly connect or otherwise make its several
parts come together and properly integrate with such other work. Design-Builder shall not
endanger any work of others by cutting, excavating, or otherwise altering such work; provided,
however, that Design-Builder may cut or alter others' work with the written consent of City and
the others whose work will be affected.
C. If the proper execution or results of any part of Design-Builder's Work depends upon work
performed by others under this Article 7, Design-Builder shall inspect such other work and
promptly report to City in writing any delays, defects, or deficiencies in such other work that
render it unavailable or unsuitable for the proper execution and results of Design-Builder's
Work. Design-Builder's failure to so report will constitute an acceptance of such other work as
fit and proper for integration with Design-Builder's Work except for latent defects in the work
provided by others.
7.02 Coordination
A. If City intends to contract with others for the performance of other work on the Project at the
Site,the following will be set forth in Supplementary Conditions:
1. the individual or entity who will have authority and responsibility for coordination of the
activities among the various contractors will be identified;
2. the specific matters to be covered by such authority and responsibility will be itemized; and
3. the extent of such authority and responsibilities will be provided.
B. Unless otherwise provided in the Supplementary Conditions, City shall have authority for such
coordination.
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ARTICLE 8—CITY'S RESPONSIBILITIES
8.01 Communications to Design-Builder
City shall issue all communications to Design-Builder.
8.02 Furnish Data
City shall timely furnish the data required under the Contract Documents.
8.03 Pay When Due
City shall make payments to Design-Builder in accordance with Article 14.
8.04 Change Orders
City shall execute Change Orders in accordance with Paragraph 10.03.
8.05 Inspections, Tests, and Approvals
City's responsibility with respect to certain inspections, tests, and approvals is set forth in Paragraph
13.03.
8.06 Limitations on City's Responsibilities
A. The City shall not supervise, direct, or have control or authority over, nor be responsible for,
Design-Builder's means, methods, techniques, sequences, or procedures of construction, or the
safety precautions and programs incident thereto, or for any failure of Design-Builder to comply
with Laws and Regulations applicable to the performance of the Work. City will not be
responsible for Design-Builder's failure to perform the Work in accordance with the Contract
Documents.
B. City will notify the Design-Builder of any applicable City safety plans pursuant to Paragraph 6.14.
8.07 Undisclosed Hazardous Environmental Condition
City's responsibility with respect to an undisclosed Hazardous Environmental Condition is set forth
in Paragraph 4.06.
ARTICLE 9—CITY'S OBSERVATION STATUS DURING CONSTRUCTION
9.01 City's Project Representative
City will provide one or more Project Representative(s) for the duration of the Project. The duties
and responsibilities and the limitations of authority of City's Project Representative during each
phase of the Work are set forth in the Contract Documents.
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9.02 Visits to Site
A. City's Project Representative will make visits to the Site at intervals appropriate to the various
stages of construction as City deems necessary in order to observe the progress that has been
made on the various aspects of the Work. Based on information obtained during such visits and
observations, City's Project Representative will determine, in general, if the Work is proceeding
in accordance with the Contract Documents. City's Project Representative will not be required to
make exhaustive or continuous inspections on the Site to check the quality or quantity of the
Work. City's Project Representative's efforts will be directed toward providing City a greater
degree of confidence that the completed Work will conform generally to the Contract
Documents.
B. City's Project Representative's visits and observations are subject to all the limitations on
authority and responsibility in the Contract Documents including those set forth in Paragraph
8.05.
9.03 Authorized Variations in Work
City's Project Representative may authorize minor variations in the Work from the requirements of
the Contract Documents which do not involve an adjustment in the GMP or the Contract Time and
are compatible with the design concept of the completed Project as a functioning whole as indicated
by the Contract Documents. These may be accomplished by a Field Order and will be binding on
City and Design-Builder,who shall perform the Work involved promptly.
9.04 Rejecting Defective Work
City will have authority to reject Work which City's Project Representative, in conjunction with
input from City inspectors, believes to be defective, or will not produce a completed Project that
conforms to the Contract Documents or that will prejudice the integrity of the design concept of the
completed Project as a functioning whole as indicated by the Contract Documents. City will have
authority to conduct special inspection or testing of the Work as provided in Article 13, whether or
not the Work is fabricated, installed, or completed.
ARTICLE 10—CHANGES IN THE WORK; CLAIMS; EXTRA WORK
10.01 Authorized Changes in the Work
A. Without invalidating the Agreement and without notice to any surety, City may, at any time or
from time to time, order Extra Work. Upon notice of such Extra Work, Design-Builder shall
promptly proceed with the Work involved which will be performed under the applicable
conditions of the Contract Documents (except as otherwise specifically provided). Extra Work
shall be memorialized by a Change Order which may or may not precede an order of Extra work.
B. For minor changes of Work not requiring changes to Contract Time or Contract Price, a Field
Order may be issued by the City.
10.02 Unauthorized Changes in the Work
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Design-Builder shall not be entitled to an increase in the Contract Price or an extension of the
Contract Time with respect to any work performed that is not required by the Contract Documents
as amended, modified, or supplemented as provided in Paragraph 3.04, except in the case of an
emergency as provided in Paragraph 6.16.
10.03 Execution of Change Orders
A. City and Design-Builder shall execute appropriate Change Orders
covering:
1. changes in the Work which are: (i) ordered by City pursuant to Paragraph 10.01.A, (ii)
required because of acceptance of Defective Work under Paragraph 13.08 or City's
correction of Defective Work under Paragraph 13.09, or(iii) agreed to by the parties;
2. changes in the Contract Price or Contract Time which are agreed to by the parties, including
any undisputed sum or amount of time for Work actually performed.
10.04 Extra Work
A. Should a difference arise as to what does or does not constitute Extra Work, or as to the payment
thereof, and the City insists upon its performance, the Design-Builder shall proceed with the
work after making written request for written orders and shall keep accurate account of the
actual reasonable cost thereof. Contract Claims regarding Extra Work shall be made pursuant to
Paragraph 10.06.
B. The Design-Builder shall furnish the City such installation records of all deviations from the
original Contract Documents as may be necessary to enable the City to prepare for permanent
record a corrected set of plans showing the actual installation.
C. The compensation agreed upon for Extra Work whether or not initiated by a Change Order shall
be a full, complete and final payment for all costs Design-Builder incurs as a result or relating to
the change or Extra Work, whether said costs are known, unknown, foreseen or unforeseen at
that time, including without limitation, any costs for delay, extended overhead, ripple or impact
cost, or any other effect on changed or unchanged work as a result of the change or Extra Work.
10.05 Notification to Surety
If the provisions of any bond require notice to be given to a surety of any change affecting the
general scope of the Work or the provisions of the Contract Documents (including, but not limited
to, Contract Price or Contract Time), the giving of any such notice will be Design-Builder's
responsibility. The amount of each applicable bond will be adjusted by the Design-Builder to reflect
the effect of any such change.
10.06 Contract Claims Process
A. City s Decision Required: All Contract Claims, except those waived pursuant to Paragraph
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14.09, shall be referred to the City for decision. A decision by City shall be required as a condition
precedent to any exercise by Design-Builder of any rights or remedies it may otherwise have under
the Contract Documents or by Laws and Regulations in respect of such Contract Claims.
B. Notice:
1. Written notice stating the general nature of each Contract Claim shall be delivered by the
Design-Builder to City no later than 15 days after the start of the event giving rise thereto.
The responsibility to substantiate a Contract Claim shall rest with the party making the
Contract Claim.
2. Notice of the amount or extent of the Contract Claim, with supporting data shall be delivered
to the City on or before 45 days from the start of the event giving rise thereto (unless the City
allows additional time for Design-Builder to submit additional or more accurate data in
support of such Contract Claim).
3. A Contract Claim for an adjustment in Contract Price shall be prepared in accordance with
the provisions of Paragraph 12.01.
4. A Contract Claim for an adjustment in Contract Time shall be prepared in accordance with
the provisions of Paragraph 12.02.
5. Each Contract Claim shall be accompanied by Design-Builder's written statement that the
adjustment claimed is the entire adjustment to which the Design-Builder believes it is entitled
as a result of said event.
C. City's Action: City will review each Contract Claim and, within 30 days after receipt of the last
submittal of the Design-Builder, if any,take one of the following actions in writing:
1. deny the Contract Claim in whole or in part;
2. approve the Contract Claim; or
3. notify the Design-Builder that the City is unable to resolve the Contract Claim if, in the
City's sole discretion, it would be inappropriate for the City to do so. For purposes of further
resolution of the Contract Claim, such notice shall be deemed a denial.
D. City's written action under Paragraph 10.06.0 will be final and binding, unless City or Design-
Builder invoke the dispute resolution procedure set forth in Article 16 within 30 days of such
action or denial.
E. No Contract Claim for an adjustment in Contract Price or Contract Time will be valid if not
submitted in accordance with this Paragraph 10.06.
ARTICLE 11—COST OF THE WORK; ALLOWANCES; UNIT PRICE WORK; PLANS
QUANTITY MEASUREMENT
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11.01 Cost of Work
A. Costs Included.• The term Cost of Work means the sum of all costs, except those excluded in
Paragraph 11.01.13, necessarily incurred and paid by Design-Builder in the proper performance
of the Work. When the value of any Work is covered by a Change Order, the costs to be
reimbursed to Design-Builder will be only those additional or incremental costs required because
of the change in the Work. Such Cost of the Work shall not include any of the costs itemized in
Paragraph 11.01.B,but shall include,but not be limited to,the following items:
1. Payroll costs for employees in the direct employ of Design-Builder in the performance of
the Work under schedules of job classifications agreed upon by City and Design-Builder.
Such employees shall include, without limitation, superintendents, foremen, and other
personnel employed full time on the Work. Payroll costs for employees not employed full
time on the Work shall be apportioned on the basis of their time spent on the Work. Payroll
costs shall include;
a. salaries with a 55%markup, or
b. salaries and wages plus the cost of fringe benefits, which shall include social security
contributions, unemployment, excise, and payroll taxes, workers' compensation, health
and retirement benefits, bonuses, sick leave, vacation and holiday pay applicable thereto.
The expenses of performing Work outside of Regular Working Hours, Weekend
Working Hours, or legal holidays, shall be included in the above to the extent authorized
by City.
2. Cost of all materials and equipment furnished and incorporated in the Work, including costs
of transportation and storage thereof, and Suppliers' field services required in connection
therewith. All cash discounts shall accrue to Design-Builder. All trade discounts, rebates,
and refunds or returns from sale of surplus materials and equipment shall accrue to City and
Design-Builder shall make provisions so that they may be obtained. Costs of materials
described in this paragraph in excess of those actually installed but required to provide
reasonable allowance for waste and for spoilage. Unused excess materials, if any, shall be
provided to the City at the completion of the Work or, at the City's option, shall be sold by
the Design-Builder or returned to the supplier; amounts realized, if any, from such sales or
returns shall be credited to the City as a deduction from the Cost of the Work.
3. Rentals of all construction equipment and machinery, and the parts thereof, whether rented
from Design-Builder or others in accordance with rental agreements approved by City, and
the costs of transportation, loading, unloading, assembly, dismantling, and removal thereof.
All such costs shall be in accordance with the terms of said rental agreements. The rental of
any such equipment, machinery, or parts shall cease when the use thereof is no longer
necessary for the Work.
4. Payments made by Design-Builder to its Contractor or Subcontractors for Work
performed by Contractor or Subcontractors. If any subcontract provides that the
Subcontractor is to be paid on the basis of Cost of the Work plus a fee, the Subcontractor's
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Cost of the Work and fee shall be determined by the Design-Builder.
a. Full rental cost for rented, leased, and/or owned equipment shall not exceed the rates
listed in the Rental Rate Blue Book published by Equipment Watch, a unit of Penton
Media, Inc. ("Blue Book"), as adjusted to the regional area of the Project. The most
recent published edition in effect at the commencement of the actual equipment use
shall be used.
b. Rates shall apply to equipment in good working condition. Equipment not in good
condition, or larger than required, may be rejected by City's Project Representative or
City's engineer or accepted at reduced rates.
c. Equipment in Use: Actual equipment use time documented by the Engineer shall be the
basis that the equipment was on and utilized at the Project site. In addition to the
leasing rate above, equipment operational costs shall be paid at the estimated operating
cost, payment category (and the table below), and associated rate set forth in the Blue
Book if not already included in the lease rate. The hours of operation shall be based
upon actual equipment usage to the nearest full hour, as recorded by the Engineer.
Blue Book Payment
Actual Usage Category
Less than 8 hours Hourly Rate
8 or more hours but less than Daily Rate
7 days
7 or more days but less than
Weekly Rate
30 days
30 days or more Monthly Rate
d. Equipment when idle (Standby): Idle or standby equipment is equipment on-site or in
transit to and from the Work site and necessary to perform the Work under the
modification but not in actual use. Idle equipment time, as documented by the
Engineer, shall be paid at the leasing rate determined in Paragraph I1.O1.A.4.c.,
excluding operational costs.
e. Where a breakdown occurs on any piece of equipment, payment shall cease for that
equipment and any other equipment idled by the breakdown. If any part of the Work is
shut down by the City, standby time will be paid during non-operating work hours if
diversion of equipment to other Work is not practicable. Project Representative
reserves the right to cease standby time payment when an extended shutdown is
anticipated.
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5. Costs of special consultants (including but not limited to engineers, architects, testing
laboratories, surveyors, attorneys, and accountants) employed by Design-Builder for services
specifically related to the Work.
6. Supplemental costs including the following:
a. The proportion of necessary transportation, travel, and subsistence expenses of
Design-Builder's employees incurred in discharge of duties connected with the Work.
b. Cost, including transportation and maintenance, dismantling and removal of all materials,
supplies, equipment, machinery, appliances, office, and temporary facilities at the Site,
and hand tools not owned by the workers, which are consumed in the performance of the
Work, and cost, less market value, of such items used but not consumed which remain
the property of Design-Builder.
c. Sales, consumer, use, and other similar taxes related to the Work, and for which Design-
Builder is liable not covered under Paragraph 6.10, as imposed by Laws and Regulations.
d. Deposits lost for causes other than negligence of Design-Builder, any
Subcontractor, or anyone directly or indirectly employed by any of them or for whose
acts any of them may be liable, and royalty payments and fees for permits and licenses.
e. Losses and damages (and related expenses) caused by damage to any of the Work that
has been completed and accepted by the City, not compensated by insurance or
otherwise, sustained by Design-Builder in connection with the performance of the Work,
provided such losses and damages have resulted from causes other than the negligence of
Design-Builder, any subcontractor, or anyone directly or indirectly employed by any of
them or for whose acts any of them may be liable. Such losses shall include settlements
made with the written consent and approval of City. No such losses, damages, and
expenses shall be included in the Cost of the Work for the purpose of determining
Design-Builder's fee. If, however, any such loss or damage to the Work that has been
accepted by Owner requires reconstruction and Design-Builder is placed in charge
thereof, Design-Builder shall be paid for services, a fee proportionate to that stated in
Paragraph 12.01.
f. The cost of utilities, fuel, and sanitary facilities at the Site.
g. Minor expenses such as long distance telephone calls, telephone, facsimile transmissions
and communication services at the Site, reproduction costs, progress photography costs,
costs of general office and similar supplies, postage, express delivery and courier
services, and similar petty cash items in connection with the Work.
h. The costs of premiums for all bonds Design-Builder is required by the Contract Documents
to purchase and maintain; the cost of all subcontractor bonds and/or an agreed-upon rate
for subcontractor default insurance; and insurance at an agreed-upon rate.
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i. Costs of removal of debris from the site.
j. That portion of the reasonable travel and subsistence expenses of the Design-Builder's
personnel incurred while traveling in discharge of duties connected with the Work in
accordance with the Design-Builder's written policies for personnel at or below the level
of Project Superintendent.
k. Company owned trucks, trailers and equipment while directly engaged in performance of
Work for this Project, excluding the purchase of new vehicles by Design-Builder or
subcontractors for this Project.
1. Deductibles and self-insured retention amounts associated with insurance.
In. Fees and assessments for the building permit and for other permits, licenses and
inspections for which the Design-Builder is required by the Contract Documents to pay.
n. Fees of testing laboratories for tests required by the Contract Documents, except those
related to nonconforming Work other than that for which payment is permitted by
Paragraph t below.
o. Royalties and license fees paid for the use of a particular design, process or product
required by the Contract Documents; the cost of defending suits or claims for
infringement of patent or other intellectual property rights arising from such requirement
by the Contract Documents and payments made in accordance with legal judgments or
settlements against the Design-Builder resulting from such suits or claims, such payments
made only with the City's consent; provided, however, that such costs of legal defenses,
judgments and settlements shall not be included in the calculation of the Contractor's Fee
or the Guaranteed Maximum Price and provided that such royalties, fees and costs are not
excluded by provisions of the Contract Documents.
p. Legal, mediation and arbitration costs, other than those arising from disputes between the
City and Design-Builder or reasonably incurred by the Design-Builder in the performance
of the Work, except where covered under any indemnity by Design-Builder and only with
the City's written permission.
q. Reasonable expenses incurred in accordance with the Design-Builder's standard
personnel policy for relocation and temporary living allowances of personnel required for
the Work, in case it is necessary to relocate such personnel, for personnel below the level
of Project Superintendent.
r. Reasonable costs incurred by the Design-Builder in taking action to prevent threatened
damage, injury or loss in case of an emergency affecting the safety of persons or property.
s. Costs incurred by the Design-Builder in repairing or correcting damaged or
nonconforming Work performed by the Design-Builder, Contractor or its Subcontractors
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or suppliers, provided that such damaged or nonconforming Work was not caused by the
negligence or failure of the Design-Builder or the Design-Builder's employees, including
supervisory, administrative or managerial personnel, to perform in accordance with the
Contract Documents or by the failure of the Design-Builder's personnel to supervise
adequately the Work of the subcontractors or suppliers, and only to the extent that the
cost of repair or correction is not recoverable by the Design-Builder from insurance, its
Subcontractors or its suppliers.
t. Other costs incurred by the Design-Builder in performance of the Work if and to the
extent approved in advance in writing by the City.
u. Rental charges for temporary facilities, including site office trailer, office equipment,
temporary facilities,temporary utilities, dumpsters and toilets.
v. Mobilization and demobilization cost associated with Project.
w. Project specific,on-site, safety inspection and related safety supplies and costs.
x. Project specific, on site, quality control inspection and quality assurance and control
costs.
B. Costs Excluded: The term Cost of the Work shall not include any of the following items:
1. Payroll costs and other compensation of Design-Builder's officers, executives, principals (of
partnerships and sole proprietorships), general managers, safety managers, engineers,
architects, estimators, attorneys, auditors, accountants, purchasing and contracting agents,
expediters, timekeepers, clerks, and other personnel employed by Design-Builder, whether at
the Site or in Design-Builder's principal or branch office for general administration of the
Work and not specifically included in the agreed upon schedule of job classifications referred
to in Paragraph 11.01.A.1 or specifically covered by Paragraph 11.0l.A.4, all of which are to
be considered administrative costs covered by the Design-Builder's fee.
2. Expenses of Design-Builder's principal and branch offices other than Design-Builder's
office at the Site.
3. Any part of Design-Builder's capital expenses, including interest on Design-Builder's capital
employed for the Work and charges against Design-Builder for delinquent payments.
4. Costs due primarily to the negligence of Design-Builder, any subcontractor, or anyone directly
or indirectly employed by any of them or for whose acts any of them may be liable,
including but not limited to, the correction of Defective Work, disposal of materials or
equipment wrongly supplied, and making good any damage to property.
5. Other overhead or general expense costs of any kind and the costs of any item not specifically
and expressly included in Paragraphs 11.01.A.
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6. The Design-Builder's capital expenses, including interest on the Design-Builder's capital
employed for the Work.
7. Rental costs of machinery and equipment, except as specifically provided in Paragraph
11.0l.A.3.
8. Liquidated damages assessed the Design-Builder by the City.
9. Data processing and software costs related to the Work.
10. Company owned, leased or rented trucks for personal use of those persons listed in Paragraph
11.0l.B.1 above.
11. That portion of the reasonable travel and subsistence expenses of the Design-Builder's
personnel incurred while traveling in discharge of duties connected with the Work in
accordance with the Contractor's written policies for personnel identified in Paragraph
11.0l.B.1 above.
C. Design-Builder's Fee: Design-Builder's fee shall be determined as set forth in the Agreement.
When the value of any Work covered by a Change Order for an adjustment in Contract Price
is determined on the basis of Cost of the Work, Design-Builder's fee shall be determined as
set forth in Paragraph 12.01.
D. Documentation: Whenever the Cost of the Work for any purpose is to be determined pursuant to
Paragraphs 11.0LA and 11.0LB, Design-Builder will establish and maintain records thereof in
accordance with generally accepted accounting practices and submit in a form acceptable to City
an itemized cost breakdown together with supporting data.
E. For all subcontracts,the Design-Builder shall ensure compliance with Texas law.
F. Discounts, Rebates and Refunds: Cash discounts obtained on payments made by the Design-
Builder shall accrue to the City if (1) before making the payment, the Design-Builder included
them in an Application for Payment and received payment therefore from the City or (2) the City
has deposited funds with the Design-Builder with which to make payments; otherwise, cash
discounts shall accrue to the Design-Builder. Trade discounts, rebates, refunds and amounts
received from sales of surplus materials and equipment shall accrue to the City, and the Design-
Builder shall make provisions so that they can be secured. Amounts which accrue to the City in
accordance with the provisions of this paragraph shall be credited to the City as a deduction from
the Cost of the Work.
G Accounting Records: The Design-Builder shall keep full and detailed accounts and exercise such
controls as may be necessary for proper financial management under the Contract Documents; the
accounting and control systems shall be satisfactory to the City.
11.02 Allowances/Contingency
A. Specified Allowances or Contingency Amounts: Design-Builder may include in the GMP
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allowances or contingency amounts as may be acceptable to City. Specific allowance or
contingency amounts will be negotiated and memorialized in the Agreement.
B. Prior to final payment, an appropriate Change Order will be issued to reflect actual amounts due
Contractor on account of Work covered by allowance or contingency funds, if provided for in the
Agreement, and the Contract Price shall be correspondingly adjusted.
ARTICLE 12—DESIGN-BUILDER'S FEE,CHANGE OF CONTRACT PRICE; CHANGE OF
CONTRACT TIME,DELAYS
12.01 Design-Builder's Fee
The Design-Builder's Fee shall be as negotiated and memorialized in the Agreement.
12.02 Change of GMP
A. The GMP may only be changed by a Change Order.
B. The value of any Work covered by a Change Order will be determined as follows:
1. where the Work involved is covered by unit prices contained in the Contract Documents, by
application of such unit prices to the quantities of the items involved; or
2. where the Work involved is not covered by unit prices contained in the Contract Documents,
by a mutually agreed lump sum or unit price plus Design-Builder's Fee, and shall include the
cost of any secondary impacts that are foreseeable at the time of pricing the cost of Extra
Work; or
3. where the Work involved is not covered by unit prices contained in the Contract Documents
and agreement to a lump sum or unit price is not reached under Paragraph 12.02.B.2, on the
basis of the Cost of the Work (determined as provided in Paragraph 11.01) plus Design-
Builder's Fee.
4. the amount of credit to be allowed by Design-Builder to City for any change which results in
a net decrease in cost will be the amount of the actual net decrease in cost plus a
corresponding deduction in Design-Builder's Fee.
12.03 Change of Contract Time
A. The Contract Time may only be changed by a Change Order.
B. No extension of the Contract Time will be allowed for Extra Work or for a claimed delay unless
the Extra Work or claimed delay is shown to be on the critical path of the Project Schedule or
Design-Builder can show by critical path method analysis how the Extra Work or claimed delay
adversely affects the critical path.
12.04 Delays
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A. Where Design-Builder is reasonably delayed in the performance or completion of any part of
the Work due to delay beyond the control of Design-Builder, and that affected Work is within the
Contract Time, the Contract Time may be extended in an amount equal to the time lost due to
such delay if a Contract Claim is made therefor. Delays beyond the control of Design-Builder
shall include, but not be limited to, acts or neglect by City or its consultants, acts or neglect of
utility owners or other contractors performing other work as contemplated by Article 7, fires,
floods, epidemics, or abnormal weather conditions.
B. If Design-Builder is delayed, City shall not be liable to Design-Builder for any claims, costs,
losses, or damages (including but not limited to all fees and charges of engineers, architects,
attorneys, and other professionals and all court or arbitration or other dispute resolution costs)
sustained by Design-Builder on or in connection with any other project or anticipated project of
Design-Builder.
C. Design-Builder shall not be entitled to an adjustment in Contract Price or Contract Time for
delays within the control of Design-Builder. Delays attributable to and within the control of a
Subcontractor or Supplier shall be deemed to be delays within the control of Design-Builder.
D. The Design-Builder shall receive no compensation for delays or hindrances to the Work, except
when direct and unavoidable extra cost to the Design-Builder is caused by the acts or neglect of
the City or its consultants, or utility owners or separate contractors, including without
limitation the failure of the City to provide information or material, if any, which is to be
furnished by the City.
ARTICLE 13—TESTS AND INSPECTIONS; CORRECTION,REMOVAL OR ACCEPTANCE OF
DEFECTIVE WORK
13.01 Notice of Defects
Notice of all Defective Work of which City has actual knowledge will be given to Design-Builder.
Defective Work may be rejected, corrected, or accepted as provided in this Article 13.
13.02 Access to Work
City, independent testing laboratories, and governmental agencies with jurisdictional interests shall
have access to the Site and the Work at reasonable times for their observation, inspection, and
testing. Design-Builder shall provide them proper and safe conditions for such access and advise
them of Design-Builder's safety procedures and programs so that they may comply therewith as
applicable.
13.03 Tests and Inspections
A. Design-Builder shall give City timely notice of readiness of the Work for all required
inspections, tests, or approvals and shall cooperate with inspection and testing personnel to
facilitate required inspections or tests.
B. If Contract Documents, Laws or Regulations require any of the Work (or part thereof) to be
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inspected, tested, or approved by City, City shall assume responsibility for arranging and
obtaining such independent inspections, tests, retests or approvals, pay all costs in connection
therewith, and receive the required certificates of inspection or approval; excepting, however,
those fees specifically identified in the Supplementary Conditions or any Texas Department of
Licensure and Regulation (TDLR) inspections, which shall be paid as described in the
Supplementary Conditions.
C. Design-Builder shall be responsible for arranging and obtaining and shall pay all costs in
connection with any additional inspections, tests, re-tests, or approvals required for City's
acceptance of materials or equipment to be incorporated in the Work; or acceptance of materials,
mix designs, or equipment submitted for approval prior to Design-Builder's purchase thereof
for incorporation in the Work. Such inspections, tests, re-tests, or approvals shall be performed
by firms acceptable to City.
D. City may arrange for the services of an independent testing laboratory ("Testing Lab") to
perform any inspections or tests for any part of the Work, as determined solely by City.
1. City will coordinate such testing with Contractor;
2. Should any testing under this Section 13.03 D result in a "fail", "did not pass" or other
similar negative result, the Design-Builder shall be responsible for paying for any and all
retests. Design-Builder's cancellation without cause of City initiated testing shall be deemed
a negative result and require a retest.
3. Any amounts owed for any retest under this Section 13.03 D shall be paid directly to the
Testing Lab by Design-Builder. City will forward all invoices for retests to Design-Builder.
4. If Design-Builder fails to pay the Testing Lab, City will not issue Final Payment until the
Testing Lab is paid.
E. If any Work (or the work of others) that is to be inspected, tested, or approved is covered by
Design-Builder without written concurrence of City, Design-Builder shall, upon request by City,
uncover such Work for observation.
F. Uncovering Work as provided in Paragraph 13.03.E shall be at Design-Builder's
expense.
G. Design-Builder shall have the right to make a Contract Claim regarding any retest or invoice
issued under Section 13.03 D.
13.04 Uncovering Work
A. If any Work is covered contrary to the Contract Documents or specific instructions by the City, it
must, if requested by City, be uncovered for City's observation and replaced at Design-Builder's
expense.
B. If City considers it necessary or advisable that covered Work be observed by City or inspected or
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tested by others, Design-Builder, at City's request, shall uncover, expose, or otherwise make
available for observation, inspection, or testing as City may require, that portion of the Work in
question, furnishing all necessary labor,material, and equipment.
1. If it is found that the uncovered Work is defective, Design-Builder shall pay all claims,
costs, losses, and damages (including but not limited to all fees and charges of engineers,
architects, attorneys, and other professionals and all court or other dispute resolution costs)
arising out of or relating to such uncovering, exposure, observation, inspection, and testing,
and of satisfactory replacement or reconstruction (including but not limited to all costs of
repair or replacement of work of others); or City shall be entitled to accept Defective Work
in accordance with Paragraph 13.08 in which case Design-Builder shall still be responsible
for all costs associated with exposing, observing, and testing the Defective Work.
2. If the uncovered Work is not found to be defective, Design-Builder shall be compensated
for costs and/or time directly attributable to such uncovering, exposure, observation,
inspection,testing, replacement, and reconstruction.
13.05 City May Stop the Work
If the Work is defective, or Design-Builder fails to supply sufficient skilled workers or suitable
materials or equipment, or fails to perform the Work in such a way that the completed Work will
conform to the Contract Documents, City may order Design-Builder to stop the Work, or any
portion thereof, until the cause for such order has been eliminated; however, this right of City to stop
the Work shall not give rise to any duty on the part of City to exercise this right for the benefit
of Design-Builder, any Subcontractor, any Supplier, any other individual or entity, or any surety for,
or employee or agent of any of them.
13.06 Correction or Removal of Defective Work
A. Promptly after receipt of written notice, Design-Builder shall correct all Defective Work
pursuant to an acceptable schedule, whether or not fabricated, installed, or completed, or, if the
Work has been rejected by City, remove it from the Project and replace it with Work that is not
defective. Design-Builder shall pay all claims, costs, additional testing, losses, and damages
(including but not limited to all fees and charges of engineers, architects, attorneys, and other
professionals and all court or arbitration or other dispute resolution costs) arising out of or
relating to such correction or removal (including but not limited to all costs of repair or
replacement of work of others). Failure to require the removal of any Defective Work shall not
constitute acceptance of such Work.
B. When correcting Defective Work under the terms of this Paragraph 13.06 or Paragraph 13.07,
Design-Builder shall take no action that would void or otherwise impair City's special warranty
and guarantee, if any, on said Work.
13.07 Correction Period
A. If within two (2) years after the date of Substantial Completion, any Work is found to be
defective, or if the repair of any damages to the land or areas made available for Design-
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Builder's use by City or permitted by Laws and Regulations as contemplated in Paragraph
6.09.A is found to be defective, Design-Builder shall promptly, without cost to City and in
accordance with City's written instructions:
1. repair such defective land or areas; or
2. correct such Defective Work; or
3. if the Defective Work has been rejected by City, remove it from the Project and replace it
with Work that is not defective, and
4. satisfactorily correct or repair or remove and replace any damage to other Work, to the work
of others or other land or areas resulting therefrom.
B. If Design-Builder does not promptly comply with the terms of City's written instructions, or in
an emergency where delay would cause serious risk of loss or damage, City may have the
Defective Work corrected or repaired or may have the rejected Work removed and replaced. All
claims, costs, losses, and damages (including but not limited to all fees and charges of engineers,
architects, attorneys, and other professionals and all court or other dispute resolution costs)
arising out of or relating to such correction or repair or such removal and replacement (including
but not limited to all costs of repair or replacement of work of others) will be paid by Design-
Builder.
C. In special circumstances where a particular item of equipment is placed in continuous service
before Substantial Completion of all the Work, the correction period for that item may start to
run from an earlier date if so provided in the Contract Documents.
D. Where Defective Work (and damage to other Work resulting therefrom) has been corrected or
removed and replaced under this Paragraph 13.07, the correction period hereunder with respect
to such Work may be required to be extended for an additional period of six months after the end
of the initial correction period. City shall provide 30 days written notice to Design-Builder
should such additional warranty coverage be required. Design-Builder may dispute this
requirement by filing a Contract Claim.
E. Contractor's obligations under this Paragraph 13.07 are in addition to any other obligation or
warranty. The provisions of this Paragraph 13.07 shall not be construed as a substitute for, or a
waiver of,the provisions of any applicable statute of limitation or repose.
13.08 Acceptance of Defective Work
If, instead of requiring correction or removal and replacement of Defective Work, City prefers
to accept it, City may do so. Design-Builder shall pay all claims, costs, losses, and damages
(including but not limited to all fees and charges of engineers, architects, attorneys, and other
professionals and all court or other dispute resolution costs) attributable to City's evaluation of and
determination to accept such Defective Work and for the diminished value of the Work to the extent
not otherwise paid by Design-Builder. If any such acceptance occurs prior to Final Acceptance, a
Change Order will be issued incorporating the necessary revisions in the Contract Documents with
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respect to the Work, and City shall be entitled to an appropriate decrease in the Contract Price,
reflecting the diminished value of Work so accepted.
13.09 City May Correct Defective Work
A. If Design-Builder fails within a reasonable time after written notice from City to correct
Defective Work, or to remove and replace rejected Work as required by City in accordance with
Paragraphl3.06.A, or if Design-Builder fails to perform the Work in accordance with the
Contract Documents, or if Design-Builder fails to comply with any other provision of the
Contract Documents, City may, after seven (7) days written notice to Design-Builder, correct or
remedy any such deficiency.
B. In exercising the rights and remedies under this Paragraph 13.09, City shall proceed
expeditiously. In connection with such corrective or remedial action, City may exclude Design-
Builder from all or part of the Site, take possession of all or part of the Work and suspend
Design-Builder's services related thereto, and incorporate in the Work all materials and
equipment incorporated in the Work, stored at the Site or for which City has paid Design-Builder
but which are stored elsewhere. Design-Builder shall allow City, City's representatives, agents,
consultants, employees, and City's other contractors, access to the Site to enable City to exercise
the rights and remedies under this Paragraph 13.09.
C. All claims, costs, losses, and damages (including but not limited to all fees and charges of
engineers, architects, attorneys, and other professionals and all court or other dispute resolution
costs) incurred or sustained by City in exercising the rights and remedies under this
Paragraphl3.09 will be charged against Design-Builder, and a Change Order will be issued
incorporating the necessary revisions in the Contract Documents with respect to the Work; and
City shall be entitled to an appropriate decrease in the Contract Price.
D. Design-Builder shall not be allowed an extension of the Contract Time because of any delay in
the performance of the Work attributable to the exercise of City's rights and remedies under this
Paragraph 13.09.
ARTICLE 14—PAYMENTS TO DESIGN-BUILDER AND COMPLETION
14.01 Schedule of Values
The Schedule of Values will serve as the basis for progress payments and will be incorporated into
an Application for Payment acceptable to City. Progress payments on account of Unit Price Work
will be based on the number of units completed.
14.02 Progress Payments
A. Applications for Payments:
1. Design-Builder is responsible for providing all information as required to become a vendor
of the City.
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2. Design-Builder shall submit to City for review an Application for Payment filled out and
signed by Design-Builder covering the Work completed as of the date of the Application for
Payment and accompanied by such supporting documentation as is required by the Contract
Documents. The Design-Builder's Fee for overhead and profit shall be payable on a
monthly basis,prorated as a percentage of the contract time expended.
3. If payment is requested on the basis of materials and equipment not incorporated in the Work
but delivered and suitably stored at the Site or at another location agreed to in writing, the
Application for Payment shall also be accompanied by a bill of sale, invoice, or other
documentation warranting that Design-Builder, on behalf of City, has received the
materials and equipment free and clear of all Liens and evidence that the materials and
equipment are covered by appropriate insurance or other arrangements to protect City's
interest therein, all of which must be satisfactory to City.
4. Beginning with the second Application for Payment, it and each subsequent Application for
Payment shall include an affidavit from Design-Builder stating that previous progress
payments received on account of the Work have been applied on account to discharge
Design-Builder's legitimate obligations associated with prior Applications for Payment.
5. The amount of retainage with respect to progress payments will be as stipulated in the
Agreement.
B. Review of Applications for Payment:
1. City will, within 30 days after receipt of each Application for Payment, either indicate in
writing a recommendation of payment or return the Application for Payment to Design-
Builder indicating reasons for refusing payment. In the latter case, Design-Builder may
make the necessary corrections and resubmit the Application for Payment.
2. City's processing of any payment requested in an Application for Payment will be based on
City's observations of the executed Work, and on City's review of the Application for
Payment and the accompanying data and schedules,that to the best of City's knowledge:
a. the Work has progressed to the point indicated;
b. the quality of the Work is generally in accordance with the Contract Documents (subject
to an evaluation of the Work as a functioning whole prior to or upon Final Acceptance,
the results of any subsequent tests called for in the Contract Documents, a final
determination of quantities and classifications for Work performed, and any other
qualifications stated in the recommendation).
3. Processing any such payment will not thereby be deemed to have represented that:
a. inspections made to check the quality or the quantity of the Work as it has been
performed have been exhaustive, extended to every aspect of the Work in progress, or
involved detailed inspections of the Work beyond the responsibilities specifically
assigned to City in the Contract Documents; or
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b. there may not be other matters or issues between the parties that might entitle Design-
Builder to be paid additionally by City or entitle City to withhold payment to Design-
Builder, or
c. Design-Builder has complied with Laws and Regulations applicable to Design-Builder's
performance of the Work.
4. City may refuse to process the whole or any part of any payment because of subsequently
discovered evidence or the results of subsequent inspections or tests, and revise or revoke
any such payment previously made, to such extent as may be necessary to protect City from
loss because:
a. the Work is defective, or the completed Work has been damaged by the Design-Builder
or his subcontractors,requiring correction or replacement;
b. discrepancies in quantities contained in previous applications for payment;
c. the Contract Price has been reduced by Change Orders;
d. City has been required to correct Defective Work or complete Work in accordance with
Paragraph 13.09; or
e. City has actual knowledge of the occurrence of any of the events enumerated in
Paragraph 15.02.A. C.
C. Payment:
1. Design-Builder will be paid pursuant to the requirements of this Article 14 and payment of
any undisputed portion of an Application for Payment will become due within 30 days of the
receipt of the Application for Payment.
2. Upon failure by City to so pay, Design-Builder may suspend performance of Work
(whichever phase), or in the event any Application for Payment remains unpaid for ninety
days on the basis of non-performance on the part of the City, to terminate this Agreement.
Interest at the rate of two percent per annum shall be payable on any amounts which are not
in dispute but are unpaid by City after sixty days after receipt of an Application for
Payment. When such progress payments are restored, unless terminated as provided for
herein, Design-Builder shall resume providing all agreed-upon Services
D. Reduction in Payment:
1. City may refuse to make payment of the amount requested because:
a. Liens have been filed in connection with the Work, except where Design-Builder has
delivered a specific bond satisfactory to City to secure the satisfaction and discharge of
such Liens;
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b. there are other items entitling City to a set-off against the amount recommended; or
c. City has actual knowledge of the occurrence of any of the events enumerated in
Paragraphs 14.02.B.4.a through 14.02.B.4.e or Paragraph 15.02.A.
2. If City refuses to make payment of the amount requested, City will give Design-Builder
written notice stating the reasons for such action and pay Design-Builder any amount
remaining after deduction of the amount so withheld. City shall pay Design-Builder the
amount so withheld, or any adjustment thereto agreed to by City and Design-Builder, when
Design-Builder remedies the reasons for such action.
14.03 Design-Builder's Warranty of Title
Design-Builder warrants and guarantees that title to all Work, materials, and equipment covered by
any Application for Payment, whether incorporated in the Project or not, will pass to City no later
than the time of payment free and clear of all Liens.
14.04 Partial Utilization
A. Prior to Final Acceptance of all the Work, City may use or occupy any substantially completed
part of the Work which has specifically been identified in the Contract Documents, or which
City determines constitutes a separately functioning and usable part of the Work that can be
used by City for its intended purpose without significant interference with Design-Builder's
performance of the remainder of the Work. City at any time may notify Design-Builder in
writing of City's intent to use or occupy any such part of the Work which City determines, and
Design-Builder agrees, is suitable for City's use.
B. City and Design-Builder may jointly determine certain completed Work to be ready for its
intended use, subject to the following conditions:
1. Design-Builder at any time may notify City in writing that Design-Builder considers any
such part of the Work ready for its intended use.
2. Within a reasonable time after notification, City and Design-Builder shall make an
inspection of that part of the Work to determine its status of completion. If City does not
consider that part of the Work to be substantially complete, City will notify Design-Builder
in writing giving the reasons therefor.
3. Partial Utilization will not constitute Final Acceptance by City.
14.05 Final Inspection
A. Upon written notice from Design-Builder that the entire Work is complete in accordance with
the Contract Documents City will:
1. within 10 days schedule a Final Inspection with Design-Builder; and
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2. no later than 10 days thereafter, notify Contractor in writing of all particulars which the
Final Inspection reveals that the Work is incomplete or defective. Design-Builder shall
immediately take such measures as are necessary to complete such Work or remedy such
deficiencies.
B. No time charge will be made against the Design-Builder between the date the written notice to
the City is issued and the date of Final Inspection. Should the City determine that the Work is
not ready for Final Inspection, City will notify the Design-Builder in writing of the reasons and
Contract Time will resume.
14.06 Final Acceptance
Upon completion by Design-Builder, to City's satisfaction, of any additional Work identified in the
Final Inspection, City will issue to Design-Builder a letter of Final Acceptance.
14.07 Final Payment
A. Application for Final Payment:
1. Upon receipt of a letter of Final Acceptance, Design-Builder may make an application for
final payment following the procedure for progress payments in accordance with the
Contract Documents.
2. The final Application for Payment shall be accompanied by:
a. all documentation called for in the Contract Documents(except as previously delivered),
including but not limited to the evidence of insurance required by Paragraph 5.03;
b. consent of the surety, if any,to final payment;
c. a list of all pending or released Damage Claims against City that Contractor believes are
unsettled; and
d. affidavits of payments and complete and legally effective releases or waivers
(satisfactory to City) of all Lien rights arising out of any Liens filed in connection with
the Work.
B. Payment Becomes Due:
1. After City's acceptance of the Application for Final Payment and accompanying
documentation, and:
a. after subtracting previous payments made; and
b. after subtracting any sum(s) to which the City is entitled, including but not limited
to liquidated damages; and
c. after all Damage Claims have been resolved:
i) directly by the Design-Builder; or
ii) Design-Builder provides evidence that the Damage Claim has been reported to
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Contractor's insurance provider for resolution; then
d. Final Payment will become due and payable.
2. The making of the final payment by the City shall not relieve the Design-Builder of any
guarantees or other requirements of the Contract Documents which specifically continue
thereafter.
14.08 Final Completion Delayed and Partial Retainage Release
A. If final completion of the Work is significantly delayed, and if City so confirms, City may, upon
receipt of Design-Builder's Application for Final Payment, and without terminating the
Agreement, make payment of the balance due for that portion of the Work fully completed and
accepted. If the remaining balance to be held by City for Work not fully completed or corrected
is less than the retainage stipulated in Paragraph 14.02.A.5., and if bonds have been furnished as
required in Paragraph 5.02, the written consent of the surety to the payment of the balance
due for that portion of the Work fully completed and accepted shall be submitted by Design-
Builder to City with the Application for such payment. Such payment shall be made under the
terms and conditions governing final payment, except that it shall not constitute a waiver of
Contract Claims.
B. Partial Retainage Release. The City may release a portion of the amount retained pursuant to
Paragraph 14.02.A.5. provided that all required Work is completed as determined by the City.
Before the release, all submittals and final quantities must be completed and accepted by the
City. An amount sufficient to ensure Final Completion will be retained.
14.09 Waiver of Claims
The acceptance of final payment by Design-Builder will constitute a release of the City from all
claims or liabilities under the Agreement for anything done or furnished or relating to the Work
under the Contract Documents or any act or neglect of City related to or connected with the
Agreement.
ARTICLE 15—SUSPENSION OF WORK AND TERNIINATION
15.01 City May Suspend Work
A. At any time and without cause, City may suspend the Work or any portion thereof by written
notice to Design-Builder and which may fix the date on which Work will be resumed. Design-
Builder shall resume the Work on the date so fixed. During temporary suspension of the Work
covered by these Contract Documents, for any reason, the City will make no extra payment for
stand-by time of construction equipment and/or construction crews.
B. Should the Design-Builder not be able to complete a portion of the Project due to causes beyond
the control of and without the fault or negligence of the Design-Builder, and should it be
determined by mutual consent of the Design-Builder and City that a solution to allow
construction to proceed is not available within a reasonable period of time, Design-Builder may
request an extension in Contract Time, directly attributable to any such suspension.
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C. If it should become necessary to suspend the Work for an indefinite period, the Design-Builder
shall store all materials in such a manner that they will not obstruct or impede the public
unnecessarily nor become damaged in any way, and Design-Builder shall take every precaution
to prevent damage or deterioration of the work performed; Design-Builder shall provide suitable
drainage about the work, and erect temporary structures where necessary.
D. Design-Builder may be reimbursed for the cost of moving its equipment off the job and returning
the necessary equipment to the job when it is determined by the City that construction may be
resumed. Such reimbursement shall be based on actual cost to the Design-Builder of moving the
equipment and no profit will be allowed. Reimbursement may not be allowed if the equipment is
moved to another construction project for the City.
15.02 City May Terminate for Cause
A. The occurrence of any one or more of the following events, by way of example but not of
limitation,may justify termination for cause:
1. Design-Builder's persistent failure to perform the Work in accordance with the Contract
Documents (including, but not limited to, failure to supply sufficient skilled workers or
suitable materials or equipment, failure to adhere to the Project Schedule, as adjusted from
time to time;
2. Design Builder's failure to adhere to the City's Business Diversity Enterprise Ordinance;
3. Design Builder's disregard of Laws or Regulations of any public body having jurisdiction;
4. Design Builder's repeated disregard of the authority of City;
5. Design Builder's violation in any substantial way of any provisions of the Contract
Documents;
6. Design Builder's failure to promptly make good any defect in materials or
workmanship, or defects of any nature, the correction of which has been directed in writing
by the City;
7. Substantial indication that the Design-Builder has made an unauthorized assignment of the
Agreement or any funds due therefrom for the benefit of any creditor or for any other
purpose;
8. Substantial evidence that the Design-Builder has become insolvent or bankrupt, or otherwise
financially unable to carry on the Work satisfactorily; or
9. Design-Builder commences legal action in a court of competent jurisdiction against the City.
B. If one or more of the events identified in Paragraph 15.02A. occur, City will provide written
notice to Design-Builder and Surety to arrange a conference with Design-Builder and Surety to
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address Design-Builder's failure to perform the Work. The Conference shall be held not later
than 15 days, after receipt of notice.
1. If the City, Design-Builder, and Surety do not agree to allow the Design-Builder to proceed
to perform under the Agreement, the City may, to the extent permitted by Laws and
Regulations, declare Design-Builder in default and formally terminate the Design-Builder's
right to complete the Agreement. Design-Builder's default shall not be declared earlier than
20 days after the Design-Builder and Surety have received notice of conference to address
Design-Builder's failure to perform the Work.
2. If Design-Builder's services are terminated, Surety shall be obligated to take over and
perform the Work. If Surety does not commence performance thereof within 15 calendar
days after the date of written notice demanding Surety's performance of its obligations, then
City, without process or action at law, may take over any portion of the Work.
3. If City completes the Work, City may exclude Design-Builder and Surety from the site and
take possession of the Work, and all materials and equipment incorporated into the Work
stored at the Site or for which City has paid Design-Builder or Surety but which are stored
elsewhere, and finish the Work as City may deem expedient.
4. Whether City or Surety completes the Work, Design-Builder shall not be entitled to receive
any further payment for Work satisfactorily completed prior to Termination until the Work
is completely finished. If the unpaid balance of the Contract Price exceeds all claims, costs,
losses and damages sustained by City arising out of or resulting from City or Surety
completing the Work, such excess will be paid to Design-Builder, with Surety approval, up
to the amount withheld prior to Termination. Any excess shall be retained by City unless
any completion or take over agreement between City and Surety require said money to be
paid to Surety. If City completes the Work due to Surety's failure to so perform, and any
claims, costs, losses and damages exceed the unpaid balance, Design-Builder or Surety shall
pay the difference to City. Such claims, costs, losses and damages incurred by City will be
incorporated in a Change Order, provided that when exercising any rights or remedies under
this Paragraph, City shall not be required to obtain the lowest price for the Work performed.
5. Neither City, nor any of its respective consultants, agents, officers, directors or employees
shall be in any way liable or accountable to Design-Builder or Surety for the method by
which the completion of the said Work, or any portion thereof, may be accomplished or for
the price paid therefor.
6. City, notwithstanding the method used in completing the Agreement, shall not forfeit the
right to recover damages from Design-Builder or Surety for Design-Builder's failure to
timely complete the Work. Design-Builder shall not be entitled to any claim on account of
the method used by City in completing the Work.
7. Maintenance of the Work shall continue to be Design-Builder and Surety's responsibilities
as provided for in the bond requirements of the Contract Documents or any special
guarantees provided for under the Contract Documents or any other obligations otherwise
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prescribed by law.
8. Termination of Design-Builder for Cause shall nullify any financial incentives which may be
contained in the Agreement.
C. Notwithstanding Paragraphs 15.02.B, Design-Builder's services will not be terminated if
Design-Builder begins, within seven days of receipt of notice of intent to terminate, to correct its
failure to perform and proceeds diligently to cure such failure within not more than 30 days of
receipt of said notice.
D. Where Design-Builder's services have been so terminated by City, the termination will not affect
any rights or remedies of City against Design-Builder then existing or which may thereafter
accrue. Any retention or payment of moneys due Design-Builder by City will not release Design-
Builder from liability.
E. To the extent that Design-Builder has provided a performance bond under the provisions of
Paragraph 5.02, the termination procedures of that bond, if any, shall not supersede the
provisions of this Article.
15.03 City May Terminate For Convenience
A. City may, without cause and without prejudice to any other right or remedy of City, terminate the
Agreement. Any termination shall be effected by mailing a notice of the termination to the
Design-Builder specifying the extent to which performance of Work under the contract is
terminated, and the date upon which such termination becomes effective. Receipt of the notice
shall be deemed conclusively presumed and established when the letter is placed in the United
States Postal Service Mail by the City. Further, it shall be deemed conclusively presumed and
established that such termination is made with just cause as therein stated; and no proof in any
claim, demand or suit shall be required of the City regarding such discretionary action.
B. After receipt of a notice of Termination for Convenience, and except as otherwise directed
by the City, the Design-Builder shall:
1. Stop work under the Agreement on the date and to the extent specified in the notice of
termination;
2. place no further orders or subcontracts for materials, services or facilities except as may be
necessary for completion of such portion of the Work under the Agreement as is not
terminated;
3. terminate all orders and subcontracts to the extent that they relate to the performance of the
Work terminated by notice of termination;
4. transfer title to the City and deliver in the manner, at the times, and to the extent, if any,
directed by the City:
a. the fabricated or un-fabricated parts, Work in progress, completed Work, supplies
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and other material produced as a part of, or acquired in connection with the performance
of,the Work terminated by the notice of the termination; and
b. the completed, or partially completed plans, drawings, information and other property
which, if the Agreement had been completed, would have been required to be furnished
to the City;
5. complete performance of such Work as shall not have been terminated by the notice of
termination; and
6. take such action as may be necessary, or as the City may direct, for the protection and
preservation of the property related to its contract which is in the possession of the Design-
Builder and in which the owner has or may acquire an interest.
C. At a time not later than 30 days after the termination date specified in the notice of termination,
the Design-Builder may submit to the City a list, certified as to quantity and quality, of any or all
items of termination inventory not previously disposed of, exclusive of items the disposition of
which has been directed or authorized by City.
D. Not later than 15 days thereafter, the City shall accept title to such items provided, that the list
submitted shall be subject to verification by the City upon removal of the items or, if the items
are stored, within 45 days from the date of submission of the list, and any necessary adjustments
to correct the list as submitted, shall be made prior to final settlement.
E. Not later than 60 days after the notice of termination, the Design-Builder shall submit a
termination claim to the City in the form and with the certification acceptable to the City. Unless
a written extension request is made within such 60 day period by the Design-Builder, and
granted by the City, any and all such claims shall be conclusively deemed waived.
F. In such case,Design-Builder shall be paid,without duplication of any items, for:
1. completed and acceptable Work executed in accordance with the Contract Documents prior
to the effective date of termination;
2. direct expenses sustained prior to the effective date of termination in performing services
and furnishing labor, materials, or equipment as required by the Contract Documents in
connection with uncompleted Work;
3. reasonable expenses directly attributable to termination; and
4. overhead and profit in the form of a prorated amount of the Design-Builder's Fee, with such
proportion being "the cost of the work completed to date" divided by "GMP minus the
Design-Builder's Fee".
G. In the event of the failure of the Design-Builder and City to agree upon the whole amount to be
paid to the Design-Builder by reason of the termination of the Work under Paragraph 15.03, the
City shall determine, on the basis of information available to it, the amount, if any, due to the
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Design-Builder by reason of the termination and shall pay to the Design-Builder the amounts
determined. Design-Builder shall not be paid on account of loss of anticipated profits or revenue
or other economic loss arising out of or resulting from such termination.
ARTICLE 16—DISPUTE RESOLUTION
16.01 Methods and Procedures
A. Either City or Design-Builder may request mediation of any Contract Claim submitted for a
decision under Paragraph 10.06 before such decision becomes final and binding. The request for
mediation shall be submitted to the other party to the Agreement. Timely submission of the
request shall stay the effect of Paragraph 10.06.E.
B. City and Design-Builder shall participate in the mediation process in good faith. The process
shall be commenced within 60 days of filing of the request.
C. If the Contract Claim is not resolved by mediation, City's action under Paragraph 10.06.0 or a
denial pursuant to Paragraphs 10.06.C.3 or 10.06.1) shall become final and binding 30 days after
termination of the mediation unless,within that time period, City or Design-Builder:
1. elects in writing to invoke any other dispute resolution process provided for in the
Supplementary Conditions; or
2. agrees with the other party to submit the Contract Claim to another dispute resolution
process; or
3. gives written notice to the other party of the intent to submit the Contract Claim to a court of
competent jurisdiction.
ARTICLE 17—NHSCELLANEOUS
17.01 Giving Notice
A. Whenever any provision of the Contract Documents requires the giving of written notice, it will
be deemed to have been validly given if
Ldelivered in person to the individual or to a member of the firm or to an officer of the
corporation for whom it is intended; or
2. delivered electronically with a"read receipt verification"requested; or
3. In the case of any notice of Claim or Termination, delivered or sent by registered or
certified mail, postage prepaid, or overnight delivery to the last business
address known to the giver of the notice.
B. Business address changes must be promptly made in writing to the other party.
C. Whenever the Contract Documents specifies giving notice by electronic means such electronic
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notice shall be deemed sufficient upon confirmation of receipt by the receiving party.
17.02 Computation of Times
When any period of time is referred to in the Contract Documents by days, it will be computed to
exclude the first and include the last day of such period. If the last day of any such period falls on a
Saturday or Sunday or on a day made a legal holiday the next Working Day shall become the last
day of the period.
17.03 Cumulative Remedies
The duties and obligations imposed by these General Conditions and the rights and remedies
available hereunder to the parties hereto are in addition to, and are not to be construed in any way as
a limitation of, any rights and remedies available to any or all of them which are otherwise imposed
or available by Laws or Regulations, by special warranty or guarantee, or by other provisions of the
Contract Documents. The provisions of this Paragraph will be as effective as if repeated specifically
in the Contract Documents in connection with each particular duty, obligation, right, and remedy to
which they apply.
17.04 Survival of Obligations
All representations, indemnifications, warranties, and guarantees made in, required by, or given in
accordance with the Contract Documents, as well as all continuing obligations indicated in the
Contract Documents, will survive final payment, completion, and acceptance of the Work or
termination or completion of the contract or termination of the services of Design-Builder.
17.05 Headings
Article and paragraph headings are inserted for convenience only and do not constitute parts of these
General Conditions.
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City of Fort Worth, Texas
Mayor and Council Communication
DATE: 03/03/20 M&C FILE NUMBER: M&C 20-0140
LOG NAME: 80CHISHOLM TRAIL PARK DESIGN BUILD 2
SUBJECT
Authorize Execution of a Design-Build Contract with The Fain Group, Inc.,for a Guaranteed Maximum Price Not to Exceed$2,303,000.00 with a
Project Management Fee of 8.3 Percent of the Guaranteed Maximum Price for Phase II Park Improvements at Chisholm Trail Park, Provide for
Additional Costs and Contingencies in the amount of$197,000.00 for a Total Project Amount of$2,500,000.00(2018 BOND PROGRAM)
(COUNCIL DISTRICT 6)
RECOMMENDATION:
It is recommended that the City Council authorize execution of a Design-Build Contract with The Fain Group, Inc.,with a project management fee of
8.3 percent of the Guaranteed Maximum Price within the project budget of$2,303,000.00,for the design and construction of Phase II Park
Improvements at Chisholm Trail Park.
DISCUSSION:
The purpose of this Mayor and Council Communication(M&C)is to award a Design-Build Contract to The Fain Group, Inc.(Fain)and their design
team of Larry O'Flinn, LLC dba O'Flinn Design Group,and Transcend, Inc.dba SPA Skateparks,for the design and construction of Phase II Park
Improvements at Chisholm Trail Park.
The 2018 Bond Program Proposition B: Parks and Recreation Improvements,within the category of Community Park Improvements, included
$2,500,000.00 for Chisholm Trail Park.The project description stated:"Implementation of the park master plan,including,but not limited to,the
construction of soccer fields,skate park expansion,playground,trails, parking,security lighting and supporting infrastructure and equipment.
In addition to the$2,303,000.00 project budget for this contract,which will include the Design-Builder's management fee of 8.3 percent of the
Guaranteed Maximum Price(GMP),$197,000.00 has been allocated for the City's contingency,construction inspection,materials testing,and
project management and administration.
Project Budget(Includes all Design-Build Services and Fees) $2,303,000.00
Contingency, Inspection,Material Testing and Project Administration $ 197,000.00
Total $2,500,000.00
After the contract is awarded,The Fain Group, Inc.,and its team will commence with a detailed design for park improvements in Chisholm Trail
Park and the preparation of a GMP. Both the design and GMP will be presented to staff for review,refinement,and acceptance.The City reserves
the right to terminate the contract at any time and for any reason.
The Phase II Park Improvements are anticipated to be completed by March 2021. Because of the ambitious design and construction schedule,
staff analyzed different project delivery methods available under Texas law. It was determined that the most efficient delivery method for this project
was Design-Build,where the City contracts with a single entity(prime contractor)that provides both design and construction services.The design-
build method generally results in a quicker,more seamless project delivery with fewer,if any,construction change orders and delays than those
typically associated with a traditional design-bid-build delivery.
The Request for Qualifications(RFQ)was advertised in the Fort Worth Star-Telegram on August 22,2019,August 29,2019,and September 5,
2019,with two firms responding,The Fain Group, Inc.,and Dean Construction, Inc.The selection panel consisted of staff from the following
departments: Park&Recreation Department(PARD), Economic Development, Property Management,and Transportation&Public Works(TPW).
The two firms were issued Requests for Proposals,which included a more detailed scope of services.The selection panel then evaluated the
proposals on December 3,2019.The selection panel assigned points for each firm based on the following 7 qualification factors: project
approach,anticipated problems, proposed solutions to anticipated problems,ability to meet project schedule,conceptual engineering design,
M/SBE participation,and project cost proposal.The scoring summary table is below.
Proposed Solutions Ability to Meet Conceptual M/SBE Project
Score Project Anticipated Cost
Summary to Anticipated Project Engineering Totals
Approach Problems Participation
Problems Schedule Design proposal
J
Eain/IYFlinn 6 6.5 7 16.5 16 10 14 E
an [De
unaway/ 7 7 6 11 12 12JF 6 10 60
Based on the evaluation of the listed performance-based factors, Fain was selected as the top-ranked Design-Build firm for the project.Staff and
Fain have negotiated terms and general conditions of the agreement to design and construct Phase II Park Improvements at Chisholm Trail Park.
Funds for this project are included in the 2018 Bond Program.Available resources within the General Fund will be used to provide interim
financing until the debt is issued.Once debt associated with the project is sold, bond proceeds will reimburse the General Fund in accordance with
the statement expressing official Intent to Reimburse that was adopted as part of the ordinance canvassing the bond election and subsequent
actions taken by the Mayor and Council(Ordinance No.23209-05-2018).
M/WBE Office-The Fain Group, Inc. is in compliance with the City's BDE Ordinance by committing to 30% SBE participation on design phase
and 15% MBE participation for the construction phase of this Design-Build project. The City's SBE goal on the professional services is 15%,and
the City MBE goal on construction phase is 15%.
The additional annual cost to maintain Chisholm Trail Park will be$27,530.00. Funding for operations and maintenance will be allocated to the
Park&Recreation Department's base budget beginning in FY2021. As of December 31,2019,the cumulative total of additional maintenance
costs for FY2021 is$37,836.00.
Chisholm Trail Park is located in COUNCIL DISTRICT 6.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that funds are available in the current operating and capital budgets,as appropriated,in the General Fund
and the 2018 Bond Program Fund Chisholm Trail Park project. Prior to any expenditure being incurred,the Park&Recreation Department
has the responsibility to validate the availability of funds.
Submitted for City Manager's Office by. Fernando Costa 6122
Originating Business Unit Head: David Creek 5704
Additional Information Contact: Carlos Gonzalez 5734