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CONTRACT ND. 7LP
DESIGN-BUILD AGREEMENT
BETWEEN OWNER AND DESIGN-BUILDER
ON OPEN BOOK PRICE BASIS
This "AGREEMENT" made and effective as of the last day executed by a Party hereto is
between the "Design-Builder":
THE CORNELL FW COMPANY, LLC
100 E. 15th Street, Suite 640
Fort Worth, TX 75102
and the "Owner":
CITY OF FORT WORTH
1000 Throckmorton Street
Fort Worth, TX 76102
For the services in connection with the following Project:
Design and Construction of the City of Fort Worth Public Safety Training Center, Fort Worth, Texas
("Training Center")
The Design-Builder and the owner are each a"Party" hereto and may be collectively referred to as
the "Parties". Unless specifically designated to the contrary or where clear meaning implies
otherwise herein, the term Design-Builder is meant to include its Contractor or Subcontractors (as
defined).
ARTICLE 1 - GENERAL PROVISIONS
1.1 Mutual obligations. Design-Builder and Owner agree to fully cooperate in providing to
each other information available for and in facilitating the design and Construction Work of the
Training Center within the scope of this Agreement. Design-Builder agrees to provide the
architectural and engineering services as set forth below, and to furnish construction and
administration of the Construction Work. The Design-Builder shall work with Owner to develop the
Preliminary Conceptual Design Criteria Documents into formal Design Development Documents.A
Guaranteed Maximum Price Proposal shall be submitted with the Design Development Documents.
Owner and Design Builder agree to cooperate in an open and transparent manner during the design
process and construction phases to ensure that the Project can be constructed for not more than the
IGMP.
1.2 Extent of Agreement/No Third Party Richts. This Agreement is solely and exclusively for
the benefit of the Owner and the Design-Builder and not for the benefit of any third party. The
Owner and the 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 Owner
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.
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�1
1.4 Definitions.
1.4.1 The term"Agreement"shall mean this executed Standard Form of Design-Build
Agreement between the owner and the Design-Builder on open Book Price Basis and any
attachments hereto.
1.4.2 "Arch itect/Engineer"shall mean the licensed, independent design professionals
retained by the Design-Builder in conformance with Chapter 2254, Texas Government Code or
furnished by licensed employees of the Design-Builder who shall provide architectural and
engineering services required for the Project. The person or entity providing architectural and
engineering services shall be referred to as the Architect/Engineer.
1.4.3 "Attachment A" shall mean that list of specific documents consisting of: A-1
Preliminary Site Plan,A-2 Phasing Plan,A-3 Administration Building Footprint,A,4 Demolition Plan,
A-5 Offsite Utility Plan, A-6 onsite Storm Sewer Plan, A-7 onsite Sanitary Sewer and Water Plan,
A-8 Assumptions and Clarifications, A-9 Room Finish Schedule, A-10 Breakdown of Costs, A-11
Breakdown of General Conditions Costs,A-12 Breakdown of Construction Costs,A-I3 Summary of
Furniture, Fixtures and Equipment Allowances,A-'14 Summary of Training Equipment Allowances,
A-15 Project Schedule, A-15 Enercon Limited Asbestos Survey for Suspect Asbestos-Containing
Building Materials, Federal Center Buildings Office Building and Warehouse Buildings 1 Thru 4,501
West Felix Street, July 1, 2011, Enercon Project No. FWTHASB001, A-17 Phase I Environmental
Site Assessment Fort Worth Federal Center, 501 Felix Street, May 9, 2011, Enercon Project No:
FWTHEAS089,A-18 Limited Phase 11 Environmental Site Assessment, Fort Worth Federal Center,
501 West Felix Street, June 27, 2011, Enercon Project No. FWTHFS053 (executive summaries of
A-15, A-17, and A-18 attached hereto; complete reports incorporated herein by reference).
1.4.4 "Construction Documents" shall mean the drawings, specifications and other
documents prepared by the Architect/Engineer and approved by the owner for the construction of
the Project.
1.4.5 "Construction Work" or "Work" shall mean all of Design-Builder's construction
services required by the Contract Documents but does not include any design services required by
the Contract Documents.
1.4.8 "Contract Documents" shall mean (i) this Agreement, including Attachment A
attached hereto and incorporated herein by reference; (ii)written change orders and amendments to
this Agreement, including exhibits and appendices signed by both the Owner and the Design-
Builder; (iii)the Preliminary Conceptual Design Criteria Documents; (iv)the information provided by
the owner pursuant to subparagraph 3.2.2; (v) the Design Development Documents; (vi) the
Guaranteed Maximum Price Proposal used to create the Guaranteed Maximum Price, and (vii)the
Construction Documents.
1.4.7 "Contract Price"shall bean amount not to exceed the GMP as developed in Article
5 and as adjusted pursuant to and in accordance with this Agreement.
1.4.8 "Contract Time" shall mean the number of calendar days stated in paragraph 4.1
during which the Design-Builder has agreed to achieve Substantial Completion of the Construction
n
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Work. It is understood that the paragraph 5.1 IGMP and paragraph 4.1 time limits are subject to
change between the execution date hereof and the Owner's acceptance of the Guaranteed
Maximum Price Proposal (as provided in paragraph 5.2.3).
1.4.9 "Contractor"shall mean the construction firm hired by the Design-Builder to perform
the Construction Work under this Agreement.
1.4.1 0 "Date of commencement"shall be the date on which a notice to proceed is issued
by owner, which shall not be prior to the Effective Date of this Agreement.
1.4.11 "Day" or "Days" (whether uppercase or lowercase) shall mean calendar days
unless otherwise specifically noted in the Contract Documents.
1.4.12 "Defective Work" shall mean any portion of the Construction Work not in
conformance with the Construction Documents.
1.4.13 "Design Consultants" shall mean the Engineer/Architect firm(s) (or their
subcontractors hired to perform design or consulting work for the Project site and the building
improvements. Such Design Consultants'services may include civil engineering for utilities, storm
drainage, and pavement; geotechnical engineering; landscape architecture; environmental
engineering or consulting; and surveying and construction staking for sitework. Design Consultants
for the building design may include electrical, structural, mechanical, plumbing, architectural,
ADA/TSA and other specialty design areas
1.4.14 "Design Development Documents shall mean the more detailed drawings, outline
specifications, and/or other conceptual documents illustrating the Project's elements, scale, and
features,which documents consider the requirements of the Owner's Facilities Management Group
Design Guidelines for New and Existing Facilities, and which costs are not included in the IGMP, but
which collectively could enhance the Preliminary Conceptual Design Criteria Documents. The
Design Development Documents shall be prepared and submitted to the Owner with the
Guaranteed Maximum Price Proposal. The Design Development Documents shall constitute the
scope of the work to be performed by the Design-Builder for the GMP pursuant to the terms of this
Agreement.
1.4.15 "Differing Site Conditions"shall mean concealed or latent physical conditions,or
subsurface conditions at the Project site that(i) materially differ from the conditions indicated in the
Preliminary Conceptual Design Criteria Documents or (ii) are of an unusual nature, differing
materially from the conditions ordinarily encountered and generally recognized as inherent in
construction work.
1.4.15 "Final Completion" shall mean that point in time after Substantial Completion
when Design-Builder has completed all remaining Work items identified by Owner or Design-Builder
(including warranty documents, record drawings and specifications, and equipment training if
required) to Owner's reasonable satisfaction. Design-Builder shall submit to Owner, in writing, a
statement of Final Completion which shall be reviewed and, if found satisfactory,signed by Owner's
managing department's director and made a part of the final project documentation.
1.4.17 "Guaranteed Maximum Price (GMP)" shall be the total cost of the design and
construction of the Project set at the time of or before the Construction Work is authorized to
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proceed exclusive of initial site preparation, site demolition, utilities installation, asbestos abatement,
and/or work on Warehouse 2. Except as otherwise provided herein, owner shall not be obligated to
pay any costs in excess of the G M P.
1.4-18 "Hazardous Materials)" shall mean any materials, waste, substances, and/or
chemicals deemed to be hazardous under all applicable federal, state, and/or local laws, codes,
ordinances, rules, regulations, orders and decrees of any governmental entity having jurisdiction
over the Project or the Project site
1.4.19"Initial Guaranteed Maximum Price(IGMP)" shall mean the estimated cost of the
Project proposed at the time of execution of this contract as set forth in paragraph 5.1. The IGMP
may be composed of the Design-Builder's documentation and work during negotiations for
consideration of award of this Agreement.
1.4.20 "open Book Price" shall refer to the price of subcontracts, purchases, and
professional services directly supporting the construction effort of the Design-Builder and its
Contractor, plus agreed overhead and profit. The Contractor's general conditions including job staff,
staff transportation,field office equipment and services to support the Project will be on a lump sum
basis in the amount as defined in Attachment A-11.
1.4.21 "other Contractors" shall mean any other independent contractor, agent or
representative employed by the owner at the Project site who is not employed by the Design-
Builder, the contractor or its subcontractors.
1.4.22 "Preliminary conceptual Design Criteria Documents"; shall mean those
documents as found in Attachment A and used to arrive at the IGMP and contract Time.
1,4.23 "Project" is the building,facility, or other improvements at the location provided by
the Owner, generally known as the Federal Depot site, 501 West Felix Street, which the Design-
Builder has agreed to complete pursuant to the requirements of Contract Documents.
1.4.24 "Subcontractor(s)"shall mean any party or entity retained by the Design--Builder or
the Contractor as an independent contractor to provide any of the labor, materials, equipment,
and/or services necessary to complete a specific portion of the construction Work under this
Agreement. The term Subcontractor does not include an Architect/Engineer, other Design
Consultants, if any, or any Other Contractors retained by the Owner.
1.4.25 "substantial Completion"shall be the date on which the Construction Work, or an
agreed portion of the Construction Work, is sufficiently complete so that the owner can beneficially
occupy or use the Project, or portion thereof,for its intended purposes. The issuance of a certificate
of occupancy is not a prerequisite for Substantial Completion if the certificate of occupancy cannot
be obtained due to factors beyond the Design-Builder's control. The Design-Builder and the owner
agree to sign a certificate of Substantial Completion confirming the date of Substantial Completion.
1.4.25 `Work Product" shall mean all drawings, specifications, and other design
documents, including those in electronic format prepared by or procured by the Design-Builder in
performance of this Agreement.
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ARTICLE 2 - DESIGN-BUILDER'S SERVICES AND RESPONSIBILiOnES
2. Design Services.
2.1 Design Development: The Design-Builder shall prepare Design Development Documents
sufficient in detail and scope to clearly identify all major features of the Project, prepare a project
schedule, and to present a Guaranteed Maximum Price. Prior to proceeding with detailed design,
the owner must accept, in writing, the Design Development Documents.
2.1.1 Surveys describing the property, boundaries,topography and reference points for
use during construction, including existing service and utility lines;
2.1.2 Geotechnical studies describing subsurface conditions, and other surveys
describing other latent or concealed physical conditions at the Project site.
2.2 Final Design: Pursuant to a mutually agreeable schedule and after acceptance of the GNIP
by the owner as provided herein, the Design-Builder shall submit for the Owner's approval
Construction Documents that meet the requirements of the Design Development Documents, as
may be amended by any Change Orders executed by both the owner and the Design-Builder after
the date of this Agreement and the date of the submission of the Construction Documents to the
Owner.
2.3 Construction Documents. The Construction Documents shall set forth the requirements for
the Construction Work, and shall be based upon applicable Federal, State or local codes, laws or
regulations effective on the date of this Agreement. If any codes, laws, or regulations are changed
or are enacted after the date of this Agreement which affect the Design-Builder's performance of the
Construction Work, the owner and Design-Builder shall meet to determine whether the Contract
Price or the Contract Time should be equitably adjusted to compensate the Design-Builder for
changes in the Work necessitated by a code, law or regulation change. When the Design-Builder
submits the Construction Documents to the owner, the Design-Builder shall identify in writing all
material changes and deviations from the requirements of the Design Development Documents.
Material changes, if any, between the Construction Documents and the Design Development
Documents necessitated by changes in codes, laws or regulations shall be documented by a
Change Order pursuant to paragraph 7.2 equitably adjusting the Contract Price and/or the Contract
Time. Three (3) sets of the Construction Documents shall be furnished to the Owner prior to the
date of commencement of construction.
2.3.1 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 the owner or by others acting through or on behalf of the owner of
any such instruments of service without the written permission of the Design-Builder during the life
of this Agreement will be at the owner's sole risk. Upon termination or Final Completion of the
Project, the Owner shall own the preliminary, drafts and/or final printed designs, drawings,
specifications and documents and Work Product. Transfer of ownership of the Contract
Documents does not constitute sale of the documents.
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2.4 Construction Services.
2.4.1 The Design-Builder agrees to timely complete the design and commence
construction to substantially complete the Construction Work within the Contract Time.The Design-
Builder and its Contractor and any Subcontractors shall provide all necessary construction labor,
materials, tools, equipment, as well as all construction supervision, inspection, and temporary
utilities as required to complete construction required by the Construction Documents, including:
2.4.2 The Design-Builder shall perform or cause to be performed all Construction Work in
accordance with the requirements of the Construction Documents. Design-Builder shall at all times
exercise complete and exclusive control over the construction means, methods, sequences, and
techniques. The 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.
2.4.3 The exterior renovation of Warehouse 2 and construction of the firing range will be
completed on a fast-tracked schedule as defined and shown on Exhibits A-2 (Phasing Plan)and A-
15 (Project Schedule) and in accordance with section 4.1. The Design Development Drawings for
the remaining portions of Work pursuant to the Contract Documents will move forward at the same
time as the renovation of Warehouse 2 and construction of the firing range.
2.4.4 During performance of the Construction Work, the Design-Builder shall keep the
Project site reasonably free from debris,trash, and construction wastes to permit Design-Builder to
perform the Construction Work efficiently, safely, and without interference in the use of adjacent
properties. Upon suspension, termination or Substantial Completion of the Project, the Design-
Builder shall remove all debris, trash, construction waste, materials, equipment, machinery, and
tools arising from the Construction Work,to permit Owner to occupy the Project for its intended use.
Upon Final Completion of the Project, Contractor shall complete the removal of all debris, trash,
construction waste, materials, equipment, machinery, and tools arising from the Construction Work
prior to final payment being due.
2.5 Safety of Persons and Property. The Design-Builder shall require each of its Contractors or
Subcontractors to be responsible for the safety of its workmen performing the Construction Work at
the Project site, as well as the safety of all persons and property which could be injured during the
prosecution of any subcontract work. The provisions of this Agreement shall not relieve
Subcontractors of their responsibility for the safety of persons or property in the performance of
subcontract work, nor for compliance with the applicable laws and regulations. The Design-Builder
shall be responsible for the safety of all employees and workmen directly employed by the Design-
Builder at the Project site.
2.5.1 Safety Representative. The Design-Builder shall designate an individual at the
Project site in the employment of the Design-Builder who shall act as the Design-Builder's
designated safety representative. Unless otherwise identified by the Design-Builder in writing to the
Owner, the designated safety representative shall be the Design-Builder's project superintendent.
The Design-Builder will promptly report to the Owner in writing all accidents and injuries occurring at
the Project site. When the Design-Builder is required to file an accident report with a public
authority,the Design-Builder shall furnish a copy of the report to the Owner. The Design-Builder and
its Subcontractors shall comply with all legal requirements relating to the safety, as well as any of
Owner's specific safety requirements if specified in the Contract Documents.
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2.5.2 Standard of care. Qualified, licensed design professionals employed by the Design-
Builder or procured from qualified, independent licensed design consultants shall prepare the
Construction Documents. 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. This Agreement does not establish or create any legal or contractual obligations between
the owner and the design professionals employed by the Design-Builder, and the design
professionals shall not be deemed to be third party beneficiaries under this Agreement. The design
professionals shall be selected based upon demonstrated competence and qualifications in accord
with Section 2254.004, Texas Government Code.
2.5.3 Hazardous Materials. The Design-Builder acknowledges that portions of the
property may have regulated materials which may require removal and compliance with
environmental laws. Design-Builder shall not be obligated to commence or continue the
construction Work until the Hazardous Material identified in Attachments A-18, A-17, or A-18 has
been removed or rendered harmless by the Owner, except as otherwise agreed to herein, as
certified by an independent testing laboratory and approved by the appropriate government agency.
An allowance of $884,700 has been included in the IGMP (Attachment A-10) for the Design-
Builder's use in abating known asbestos located within Warehouses 1-4 as identified in Attachment
A-18. Design-Builder shall not remove any on-site soils without Owner's written consent.
2.5.3.1 owner will, upon presentation of the preliminary grading plan, investigate and
assess the two sites shown as"Possible UST Location"as identified on Attachment A-18(depicted
in Appendix A, Figure 2).
2.5.3.2 Design-Builder shall not introduce or intentionally cause a release of any
Hazardous Materials required for Construction Work onto the Project site. If Design Builder
introduces, releases, or encounters Hazardous Materials beyond or in areas not listed in
Attachments A-16, A-17, or A-18, Design Builder shall cease work in the affected area and
immediately notify the owner. If Hazardous Materials or potentially hazardous materials, not
previously identified or introduced by the Design-Builder, are discovered at the Project site, the
Owner shall be responsible for retaining an independent testing laboratory to determine the nature
of the material encountered and whether it is a Hazardous Material requiring corrective measures
and/or remedial action. The Design-Builder shall be responsible for testing in the same manner,any
potentially hazardous materials introduced by it. Any required testing shall be performed in a
manner minimizing any adverse effect upon the construction Work. If corrective measures or
remedial action is required, each Party, as the case may be, agrees to take the appropriate
corrective action in compliance with environmental laws and protective of human health.
Notwithstanding the foregoing, the Parties may work together to appropriately identify, correct or
remediate Hazardous Material. Design-Builder shall resume the Construction Work in the area
affected by any Hazardous Material only after written agreement between the owner and the
Design--Builder has been executed, after the Hazardous Material has been removed or rendered
harmless, and after approval of the governmental agency or agencies with jurisdiction, if required. If
the Design-Builder incurs additional cost and/or is delayed due to the presence or remediation of
Hazardous Material, the Design-Builder shall be entitled to an equitable adjustment in the contract
Price and/or the contract Time, unless such Hazardous Materials are introduced onto the Project
site by the Design-Builder. The Design-Builder shall not be required to perform any Construction
Work related to or in the area of Hazardous Material not introduced into the Project site by Design-
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Builder unless a written agreement is entered into between the Design-Builder and the Owner to
provide for extra cost, if any, extra time, if any, and additional risk incurred by the Design-Builder.
2.5.3.3 If Hazardous Materials not previously identified and not introduced by Design-
Builder are encountered at the Project site the owner agrees to (1) release the Design-Builder its
officers, directors and employees from any and all claims, damages, losses, or expenses incurred
by the owner arising out of or related to the performance of the construction Work in the area
affected by the Hazardous Material as defined herein; and (2) release the Design-Builder from any
indemnification obligations in this Agreement as it they relates to Hazardous Materials only.
2.5.3.4 During performance of the construction Work, the Design-Builder shall be
responsible for the proper handling of all materials, including Hazardous Materials, brought to the
Project site by the Design-Builder or its Subcontractors. Upon the issuance of the certificate of
Substantial Completion, the Design-Builder shall continue to be responsible for materials and
substances brought to the Project site, if such materials or substances are required by the
Construction Documents.
2.5.3.5 If Hazardous Materials are encountered as a result of the Design-Builder or
its Subcontractors' importation of such materials onto the Project site, the Design-Builder
shall defend, indemnify and hold harmless the owner, its officers,directors,and employees
from and against any and all claims,damages, losses,costs and expenses,including but not
limited to attorney's fees, arising out of or related to such imported.Hazardous Materials.
This indemnification shall apply without regard to the fault,negligence,breach of warranty or
contract,orstrict liability of the owner and shall indemnify the indemnifies for their own fault
or negligence.
2.5 Desi n-Builder's Warran Design-Builder warrants to Owner that all materials and
equipment furnished under this Agreement will be new, unless otherwise specified and agreed to in
writing by owner. The Design-Builder also warrants to the owner that all Work, materials and
equipment furnished under this Agreement will be in conformance with the Construction Documents.
Design-Builder's warranty obligations exclude defects caused by abuse, alterations, or failure to
maintain the construction Work by persons other than the Design-Builder or its Subcontractors.
The Design-Builder agrees to correct all Defective Work for which the Owner provides written notice
to the Design-Builder within a period of one year from the date of Substantial Completion of Phase I
of the Project and Substantial Completion of the remainder of the Project, respectively. The Design-
Builder shall collect written warranties as defined in the contract documents from its Contractor,
Subcontractors, manufacturers, suppliers, as well as all equipment manuals, and shall assign and
deliver them to the owner for the owner's use. To the extent that products, equipment, systems or
materials incorporated into the Construction Work are covered by a warranty from the manufacturer
of such products, equipment, systems or material in excess of one year, the owner's remedy to
correct the defective products, equipment, systems,or materials after the Design-Builder's one-year
general warranty period shall be exclusively against the warranty of the manufacturer, unless failure
of the product, equipment, systems or material is the result of contractor's or Subcontractor's
improper installation of same or other negligent acts or omissions that contribute to the warranty
claim.
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ARTICLE 3 -OWNER'S RESPONSIBILITIES
3.1 Cooperation with Desi n-Builder.
3.1.1 owner shall, throughout the performance of the Construction Work, cooperate
with Design-Builder and perform its responsibilities, obligations and services in a timely manner to
facilitate Design-Builder's timely and efficient performance of the Construction Work and so as not
to delay or interfere with Design-Builder's performance of its obligations under the Contract
Documents and/or construction Documents. The Owner shall cooperate and provide reasonable
assistance to the Design-Builder in obtaining the permits, approvals, and licenses that are the
responsibility of the Design-Builder.
3.1.2 owner shall provide timely reviews and approvals of interim design submissions,
Design Development Documents, and Construction Documents consistent with Owner's normal
business practices and within the negotiated times set forth in Design-Builder's schedule.
3.1.3 In order for Design-Builder to meet the Contract Time, Owner will, prior to receipt
of the OMP, in writing authorize Design-Builder to proceed with site and building demolition,
excavation and grading, and both on and offsite utilities.
3.2 Information and Services Provided by owner.
3.2.1 The Owner shall provide full information in a timely manner regarding
requirements for the Project including all information contained in the Preliminary conceptual Design
Criteria Documents.
3.2.2 Unless expressly stated to the contrary in the Contract Documents, Owner shall
provide, for Design-Builder's information and use, the following documents upon which Design-
Builder is entitled to rely in performing the Work:
3.2.2.1 Zoning requirements, zoning changes; deed restrictions, and other legal
requirements and encumbrances affecting land use, or necessary to permit the proper design and
construction of the Project and enable Design-Builder to perform the Work;
3.2.2.2 A legal description of the property upon which the Project is located;
3.2.2.3 To the extent available, as-built and record drawings of any existing structures at
the Project site; and
3.2.2.4 To the extent available, environmental studies, reports and impact statements
describing the environmental conditions, including Hazardous conditions or Hazardous Materials, in
existence at the Project site or which could affect the Project site.
3.2.3 Owner is responsible for securing and executing all necessary temporary or
permanent easements and agreements with adjacent land or property owners that are necessary to
enable Design-Builder to perform the Work. owner is further responsible for all costs, including
attorneys' fees, incurred in securing these necessary easements and agreements for the
construction to proceed without delay.
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3.3 Approval of Design Development Documents. At the time of the Owner's approval of
the OMP, as provided in paragraph 5.2,the Owner shall review, modify as authorized, and approve
in writing the Design Development Documents provided to the Owner by the Design-Builder. Upon
the Owner's approval,the Design Development Documents shall be part of the Contract Documents
and shall constitute the scope of the design and construction services to be performed by Design-
Builder.
3.4 Owner's Construction Responsibilities
3.4.1 Throughout the performance of the Construction Work,the Owner shall cooperate
with Design-Builder to assure that the Construction Work is timely and efficiently performed without
delay or interference to the services provided by Design-Builder. The Owner shall, in writing,assign
Owner Representatives consisting of a Program Manager from the Program Management Office
CPMO Program Manager") and a Project Manager from the Transportation and Public Works
Department ("TPW Project Manager"). The TPW Project Manager will report to the PMO Program
Manager and will provide construction administration services to the Project, shall be fully
acquainted with the Project and shall have authority to bind the Owner in all matters requiring the
Owner's approval, authorization, or written notice,except for Change Orders or other adjustments to
the Contract Price and/or time. The PMO Program Manager has overall responsibility for the Project
and will provide budget oversight, reprogramming of available resources, and publicly representing
the Project with respect to stakeholders including citizen groups, the City Council, City Manager's
Office, and the Fire and Police Departments. If the Owner changes its representative or the
representative's authority as listed above, the Owner shall notify the Design-Builder in writing, at
least 5 business days in advance of such change.
3.4.2 Owner is responsible for all work performed on the Project or at the location of the
Project by Other Contractors under separate contracts with the Owner. Owner shall require its
Other Contractors to cooperate with and coordinate their activities with Design-Builder, so as not to
interfere with Design-Builder in performance of this Agreement. Owner and Design-Builder agree to
cooperate and coordinate when scheduling Construction Work (Design-Builder) or Other
Contractors (Owner).
3.4.3 Owner shall provide or contract for, independently of the Design-Builder, the
construction materials engineering, testing, and inspection services and the verification testing
services necessary for acceptance of the Project.
3.4.4 Any Change Order in an amount greater than that amount authorized by the City
Council for administrative execution requires the prior approval of the City Council of the City of Fort
Worth. Any unreasonable delay as a result of the City Council approval process shall be resolved
pursuant to Paragraph 4.2.
ARTICLE 4 -CONTRACT TIME.
4.1 ,Substantial Completion and Final Completion. Substantial Completion of the
Construction Work shall be achieved within 613 calendar days for the Firing Range and the exterior
of Warehouse 2 and 755 calendar days for the remainder of the Construction Work after the Date of
Commencement, unless extended pursuant to and in accordance with this Agreement. Unless
causes beyond the Design-Builder's control delay Final Completion, the Design-Builder shall
achieve Final Completion of the Construction Work, including all punch list work, within sixty (50)
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days from the date of Substantial Completion. The Design-Builder's project schedule is attached
hereto as Attachment A-15.
4.2 Extensions of Time
4.2.1 If causes beyond the Design-Builder's control extend the time for the commencement or
progress of the Construction Work,then the Contract Time shall be extended as appropriate. Such
causes shall include but not be limited to: changes ordered in the Construction Work by the owner,
negligent acts or omissions of the Owner or Other Contractors, the Owner's delay in the Design-
Builder's performance of Construction Work,the presence of Hazardous Materials at the Project site
other than those identified in Attachments A-18, A-17, and A-18, the presence of Differing Site
Conditions, adverse weather conditions not reasonably anticipated, fire, unusual transportation
delays, labor disputes impacting the Project, actions by governmental agencies (other than the
Owner), and/or unavoidable accidents or circumstances. Causes beyond the control of the Design-
Builder do not include negligent or intentional acts or omissions on the part of the Design-Builder,
Subcontractors, or the Architect/Engineer.
4.2.2 In the event delays to the Project are encountered for any reason, both the Owner
and the Design-Builder agree to undertake reasonable efforts to mitigate the effects of such delays.
Any extension of time shall be agreed to in writing and submitted as a Charge Order.
4.3 Liquidated Damages,-.
4.3.1 Time is of the essence for the performance of this Contract.
4.3.2 To the extent that the Substantial Completion of Phase I, the exterior of
Warehouse 2 and the firing range, is not achieved within the Contract Time specifically stated in
paragraph 4.1, as adjusted pursuant to the provisions of this agreement, the owner will suffer
financial loss which is difficult, if not impossible to estimate or compute. The Owner and Design-
Builder therefore agree that the amount of $2,000.00 per day shall be deducted from the total
payment due the Design-Builder for each day that Substantial Completion of the Project is delayed
beyond the Contract Time.
4.3.3 To the extent that the Substantial Completion of the remainder of the Project is not
achieved within the Contract Time specifically stated in paragraph 4.1, as adjusted pursuant to the
provisions of this Agreement, the Owner will suffer financial loss which is difficult, if not impossible,
to estimate or compute. The Owner and the Design-Builder therefore agree that the amount of
$'1,000.00 per day shall be deducted from the total payment due the Design-Builder for each day
that Substantial Completion of the remainder of the Project is delayed beyond the Contract Time, as
adjusted by the provisions in this Agreement.
4.3.4 The Owner and the Design-Builder further agree that the amounts of liquidated
damages as stated above are a reasonable expectation of the Owner's probable damages as to
each phase of the Project, both direct and consequential, including all of the Owner's financial and
economic losses associated with, or directly or indirectly arising out of the delay in the Substantial
Completion of each phase of the Project, and that such deduction of the liquidated damages amount
is not for the purpose of a penalty.
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ARTICLE 5 -CON'rRACT PRICE
5.1 I_Design-Builder has presented owner with an Initial Guaranteed Maximum Price(IGMP)
in an amount of $97,522,957. The scope of work used to establish the IGMP is defined in
Attachment A.
5.2 Determination of Guaranteed Maximum Price ("GRIP").
5.2.1 Guaranteed Maximum Price Proposal ("GIMP Proposal"). The Design-
Builder shall prepare Design Development Documents for the Project and submit a GMP Proposal
to owner by May 15, 2013. The GMP Proposal shall include, but not be limited to a proposed price
for the design services and Construction Work.
5.2.'1.'1 -Schedule of Values.
5.2.1.1-1 As part of the GMP Proposal, the Design-Builder shall provide to the owner a
schedule of values consisting of a breakdown of the Open Book Price with separate line items for
the major elements of the design and Construction Work to be included in the GMP. Design-
Builder's fee (see section 5.1.8) shall be set forth separately in the schedule of values.
5.2.1.1-2 If the owner disagrees with the values utilized by the Design-Builder in the
schedule of values,the owner shall provide the Design-Builder a written objection to the schedule of
values within seven (7)days after the Owner's receipt of the schedule of values, specifically stating
the items to which the owner objects, the basis for such objection, and the adjustment in the
schedule of values which would be satisfactory to the owner. In the event of objection by the
Owner, the Design-Builder and the owner shall seek to negotiate in good faith to resolve any such
objection before final determination of the GMP. The Design-Builder shall not be required to
commence the Construction Work until all such objections are resolved. If any such delays in the
commencement of the Construction Work are encountered,the Design-Builder may be entitled to an
adjustment of the Contract Time.
5.2.1.2 other Documents and Information to Accompany GRIP Proposal:
5.2.1.2-1 A copy of the Design Development Documents used as the basis for establishing
the GMP;
5.2.'1.2-2 A list of the assumptions and clarifications made by Design-Builder in establishing
the GMP,which list is intended to supplement the information contained in the Design Development
Documents;
5.2.1.2-3 The Project Schedule upon which the proposed GMP is based;
5.2.1.2-4 If applicable, a list of allowances and a statement of their basis; a schedule of
alternate prices; a schedule of unit prices; and/or a statement of Additional Services;
5.2.1.2-5 The time limit for acceptance of the GMP Proposal;
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Pt,
5.2.1.2-6 Allowances The IGMP and Attachment A-10, Breakdown of Costs, contain
separate line items for allowances totaling$1 9,784,907 million. Design-Builder shall obtain Owner's
written consent to use Allowance funds in each respective category as the Project proceeds.
Should there remain funds in any allowance category after predetermined milestones are achieved
or Substantial completion of the Project, Design-Builder and Owner shall meet to discuss
disposition or continued use of those funds. Owner retains the right to disallow use of any or all
allowance funds. If Owner disallows use of allowance funds,which disallowance prevents Design-
Builder in good faith from performing other Work in accordance with the Project Schedule, the
Owner will perform the allowance Work within the timeframes outlined in the Project Schedule.
5.2.1.2-7 Contingency The IGMP and Attachment A contain separate line items for
contingencies in the amount of $5,982,258 ($4,000,000 is included in the Breakdown of
Construction costs [Attachment A-12] and $1,982,258 is identified as a separate line item in
Attachment A-10). Both contingencies are for the use by the Design-Builder for increased costs of
materials, construction labor or items directly related to the approved scope of the contract. Design-
Builder shall notify and keep the Owner informed through the open book design-build process in
writing to the PMO Program Manager of all monies utilized out of either contingency. After
completion of all excavation, grading, site utilities, foundations and renovations for Warehouses 1
and 2, the Design-Builder and Owner shall meet to discuss disposition or continued use of these
funds. Any remainder of the contingency shall be released for the Owner's use.
Notwithstanding anything to the contrary herein, all Allowances and contingencies provided
herein shall be included as a part of, and not in excess of, the GMP.
5.2.2 Review and Adjustment to GMP Proposal After submission of the GMP
Proposal, Owner shall have 15 business days for review after which Design-Builder and Owner shall
meet to discuss and review the Design Development Documents and the GMP Proposal. If the
GMP Proposal exceeds the IGMP,the Owner and Design-Builder will agree on elements of work to
be deleted so that the IGMP is not exceeded. If Owner has any comments regarding the GMP
Proposal, or finds any inconsistencies or inaccuracies in the information presented,the Owner shall
promptly give written notice to Design-Builder of such comments or findings. As necessary, Design-
Builder shall, upon receipt of Owner's notice, make appropriate adjustments to the GMP Proposal.
5.2.3 Acceptance of GMP Proposal
5.2.3.1 If after review and adjustment of the GMP Proposal,the GMP exceeds the IGMP,
the PMO Program Manager will seek city Council approval to issue a change order, increasing the
Project's cost beyond that of the IGMP. Failure of the City council to authorize a change Order
under this paragraph shall, upon Owner's subsequent written notice to Design-Builder, result in
termination of the Agreement and any compensation to Design-Builder therefor shall be pursuant to
paragraph 9.3.
5.2.3.2 If Owner accepts the GMP Proposal, the GMP Proposal and all documents
submitted with the GMP Proposal shall amend and become a part of this Agreement. Design-
Builder will proceed with completion of Construction Documents and ordering of long lead-time
materials required for the Project.
5.2.4 Failure to Accept the GMP Proposal If Owner rejects the GMP Proposal, or
fails to notify Design-Builder, in writing on or before the 15th business day after submission of the
GMP Proposal in accordance with this Agreement, that it accepts the GMP Proposal or is seeking
City Council approval for a Change Order pursuant to section 5.2.3.1, the GMP Proposal shall be
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deemed withdrawn and of no effect. In such event, owner and Design-Builder shall meet and
confer as to how the Project will proceed, with Owner having the following options:
5.2.4.1 Owner shall submit modifications to the GMP Proposal, whereupon, if such
modifications are accepted in writing by Design-Builder, the GMP Proposal shall be deemed
accepted, as modified, and the Parties shall proceed in accordance with paragraph 5.2.3 above,
except the Date of Commencement shall be the date of Design-Builder's written acceptance of such
modifications; or
5.2.4.2 owner shall terminate this Agreement under this paragraph by payment to Design-
Builder for all design services performed and all Work completed as of the termination date plus
incurred reimbursable expenses for the preparation of the Design Development Documents and the
GMP Proposal and for Construction Work completed up to time of termination, such payment being
the total compensation Design-Builder will be entitled to for any and all Work performed prior to the
date of such termination. Design-Builder shall not be entitled to any compensation for lost or
anticipated profits. Design-Builder's monthly Fee, as set forth in part (ii) of section 6.1.8, shall be
paid for the month in which termination under this section occurs.
5.2.5 The GMP is $ (which number shall be written in the space
provided and initialed by the Parties after it is determined). Initialed by: Design-Builder ;
Owner
5.3 Ad'ustments to GMP Except as otherwise provided for herein,the GMP may be adjusted to
provide for:
5.3.1 Delays affecting the Project Schedule caused by or resulting from acts or
omissions of the owner, the Owner's representatives, or other Contractors;
5.3.2 Changes to the Project or Construction Work as provided in Article 7 hereof; or
5.3.3 The Owner's lawful suspension of the work under this Agreement;
ARTICLE 6 - PAYMENT
6.1 Monthly Progress Payments.
iwww^i
6.1.1 On the first day of each month after the Date of Commencement, the Design-
Builder shall submit to the Owner an application for payment based on the percentage of work
completed for each item on the Schedule of Values and the materials suitably stored at the Project
site (or at other locations approved in writing by the Owner). Approval of payment applications for
such stored materials shall be conditioned upon submission by the Design-Builder of bills of sale or
such other procedures satisfactory to the Owner to establish the owner's title to such materials.
6.1.2 Within ten (10) business days after the owner's receipt of each monthly
application for payment, the owner shall give written notice to the Design--Builder of the owner's
acceptance, rejection, or adjustment of such application for payment. Said written notice shall state
specifically the reasons underlying the owner's rejection of all or part of Design-Builder's application
for payment and shall state the amount withheld by the Owner (in the exercise of its reasonable
discretion)for each such reason. The Owner's adjustment or rejection of an application for payment
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shall be based on a justification stated pursuant to paragraph 6.1.3. Within fifteen (15) business
days after receipt of each monthly application for payment, the owner shall pay directly to the
Design-Builder, the amount for which the application for payment is made, less any adjusted or
rejected amounts. If such application is rejected or adjusted, the owner shall provide with the
written notice of rejection or adjustment, a statement of the specific portion of the items in the
schedule of values rejected or adjusted and the owner's basis for such rejection or adjustment.
Upon owner's satisfaction of Design-Builder's cure of the items rejected or adjusted by the owner,
any withheld payment therefor shall be due and payable within fifteen(15)business days thereafter.
6.1.3 Justification for owner's Adi ustment. For the following reasons, the owner
may reject or adjust an application for payment submitted by the Design-Builder to the extent
necessary to protect the owner from loss or damage for which Design-Builder is responsible under
this Agreement:
6.1.3.1 The Design-Builder(including its Contractor or Subcontractors)fail to perform the
Construction Work as required by the construction Documents;
6.1.3.2 The owner suffers or incurs a loss or damage arising out of this Agreement and
caused by the Design-Builder, but only to the extent that such loss or damage is not covered by
insurance provided by Design-Builder or by owner pursuant to the terms of this Agreement;
6.1.3.3 The owner receives notice that the Design-Builder has failed to pay Design
Consultants, Subcontractors, or other persons supplying materials, equipment or supplies
incorporated into the construction Work, pursuant to Texas Government code Chapter 2251;
6.1.3.4 The Design-Builder fails to correct to owner's satisfaction Defective Work in a
timely manner as provided in this Agreement; or
6.1.3.5 If the unpaid balance of the Contract Price is insufficient to pay for the cost to
complete the Construction Work required under this Agreement.
6.1.4 Reta inaw Before Substantial Completion. From each progress payment
made prior to the time of Substantial Completion of the Construction Work, the owner may retain
five percent (5%) of the amount otherwise due for Construction Work under this Agreement.
6.1.5 Retainage After Substantial Completion. Upon Substantial Completion of
the Construction Work,the owner shall pay the Design-Builder the unpaid balance of the GMP, less
a sum equal to 150%of the Design-Builder's estimated cost of completing any unfinished items, as
agreed to between the owner and the Design-Builder. The owner thereafter shall pay the Design-
Builder monthly the amount retained for unfinished items as each item is completed.
6.1.6 owner's Failure to Pay. The provisions of Texas Government Code Chapter
2251 shall control should the owner fail to pay the Design-Builder, except for payments withheld
pursuant to paragraph 6.1.2. Payments due but unpaid pursuant to this section shall bear interest at
the rate set forth for past due construction payments in chapter 2251 of the Texas Government
Code.
6.1.7 Warranty of Clear Title. The Design-Builder warrants and guarantees that
title to all work, materials, and equipment covered by an application for payment, whether
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incorporated in the Project or not,will pass to the Owner upon receipt by Design-Builder of payment
for the application for payment, free and clear of all liens, claims, security interests, or
encumbrances. The Owner's payment of an application for payment, whether in whole or in part,
shall not be deemed acceptance of any Construction Work not conforming to the requirements of
the Construction Documents, it being the duty and responsibility of the Design-Builder to perform the
Construction Work in accordance with the requirements of the Construction Documents.
6.1.8 Design-Builder's Fee. The Design-Builder's Fee shall be 4.61% of the final
negotiated cost of work (as initially shown in Attachment A-10 and finally determined by the Final
Completion documents) payable in the following manner: (i) 30%of the fee within 30 days following
the Date of Commencement; (ii) 50% payable in 24 equal monthly payments; and (iii)20% payable
upon final acceptance of the Work, including punch list items. If the collective Work is completed in
less than 766 calendar days from the Date of Commencement, the remaining monthly payments in
part(ii), and the part(iii) payment, shall be due at the time of Final Completion. If the owner elects
to use its own forces or Other Contractors for any of the Work contemplated by the Allowances
detailed in Section 5.1.1 or Attachment A there shall be a corresponding reduction in the Design-
Builder's Fee. The fee shall be reduced by 4.61% of the value of any work removed from the
contract. If any additional work scope is added to the contract,the fee shall be increased by 4.61%
of the value of the added work. The Design-Builder's Fee, as may be revised, shall be used to
recalculate the final fee payment described in part (iii) above, and if necessary, the last monthly
payments due under part (ii) above.
6.2 Final Payment.
6.2.1 Upon Final Completion of all work under this Agreement, including punch list work,
Design-Builder shall submit an invoice to Owner for the final Contract Price, less progress payments
previously received (the "Final Invoice").
6.2.2 Owner shall comply with Texas Government Code 2251 if disputing Design-
Builder's Final Invoice. Any notice of disagreement must describe in detail those portions of the
Final Invoice disputed and the reason(s) for same.
6.2.3 If Owner disagrees or objects with the Final Invoice, payment shall nevertheless
be made for the undisputed balance, if any, due Design-Builder. Such payment of the undisputed
balance is due not later than 45 days following Design-Builder's submission of the Final Invoice.
With respect to the disputed amount of Design-Builder's Final Invoice the parties shall meet within
the 30-day period following Owner's notice of disagreement and attempt to resolve the dispute by
agreement. If that process is unsuccessful,the Owner and Design Builder shall submit the dispute
to non-binding mediation, and if such mediation is unsuccessful in resolving the dispute, either
Owner or Design-Builder may bring suit in a court of competent jurisdiction located in Tarrant
County, Texas.
6.2.4 In the event the final Contract Price payable under this Agreement is less than the
sum of progress payments previously received, Design-Builder shall refund the amount of such
excess progress payments received to Owner within 30 days following the final determination of the
final total Contract Price. Any refund not so made shall bear interest at the rate of ten percent(10%)
per annum.
6.2.5 Owner shall pay Design-Builder interest at the rate set forth for past due
construction payments in Chapter 2251 of the Texas Government Code on any Final Invoice
amounts not timely paid under this Agreement, except for those which may be disputed by Owner.
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PX/
ARTICLE 7 - CHANGES IN THE WORK
7.1 Changes in the`IV'ork. Changes in the Construction Work which are within the general scope
of this Agreement may be accomplished without invalidating this Agreement by Change order as
provided in paragraph 7.2, a Work Change Directive as provided in paragraph 7.3, or a Minor
Change in the Work as provided in paragraph 7.4.
7.2 Change orders. The Owner may order changes in the Construction Work,whether within the
general scope of the Construction Documents or which alter the original scope of the Project, by a
written Change Order. All such changes in the Construction Work shall be authorized pursuant to a
written change order executed by the Owner and the Design-Builder, and shall be performed under
applicable conditions of the Contract Documents. The owner and the Design-Builder shall
negotiate in good faith an equitable adjustment to the Construction Costs(a part of the overall GMP)
and the Contract Time and shall conclude these negotiations as expeditiously as possible. Should a
Change Order require an adjustment in the GMP and/or Contract Time, alter the original scope, or
cause the GMP to exceed the IGMP, the PMO Program Manager shall first seek City Council
approval. All Change Orders shall clearly separate the amount attributable to design services from
the amount attributable to construction work. Neither the Design-Builder nor the Owner, subject to
the City Council's approval, shall unreasonably withhold acceptance of the Change Order, any
adjustment in the GMP, and/or Contract Time.
7.3 Work Change Directive. In the event the Owner and the Design-Builder cannot agree on
an equitable adjustment to the Contract Price or the Contract Time, the Owner may issue a Work
Change Directive, directing a change in the Construction Work if the changed work is within the
general scope of the Construction Documents. If the Owner issues a Work Change Directive, the
Design-Builder shall provide an accounting to the owner for all extra costs incurred by the Design-
Builder as a result of the Work Change Directive. The Design-Builder shall also record all extra time
required for the completion of the work required by the Work Change Directive. The Contract Price
may be increased by the amount of such additional costs plus fifteen percent (15%) of such costs
for Design-Builder's overhead and profit tin addition to reasonable overhead and profit charged by
subcontractors). The Design-Builder may also be entitled to an extension of the Contract Time that
corresponds with the additional time required to complete the work under the Work Change
Directive. if the Owner and Design-Builder subsequently agree to the adjustments in the Contract
Price and the Contract Time for work under the Work Change Directive, such agreement may be
documented by completion of a Change Order.
7.4 Minor Changes in the Work. Design-Builder, with the written approval of the Owner,
may make minor changes in the design and construction of the Project consistent with the intent of
the Contract Documents, which do not involve an adjustment of the Contract Price and/or the
Contract Time, and which do not materially or adversely affect the design of the Project,the quality
of any of the materials or equipment specified in the Construction Documents, the performance of
any equipment or systems specified in the Construction Documents, or the quality of workmanship
required by the Construction Documents.
7.5 Differing Site Conditions. If Design-Builder encounters a Differing Site Condition, Design-
Builder may be entitled to an adjustment in the Contract Price, and/or the Contract Time, to the
extent that the Differing Site Condition adversely impacts Design-Builder's costs and/or time of
performance. Upon encountering a Differing Site Condition, Design-Builder shall provide written
notice to Owner of such condition, which notice shall not be later than five (5) business days after
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the impact of such Differing Site Condition has been determined by Design-Builder. Design-Builder
waives any claim for additional time and/or compensation for failure to provide written notice as
required herein. Design-Builder may be entitled to additional compensation and/or an adjustment in
Contract Time for a Differing Site Condition. Design-Builder shall first apply Contingency funds to
the remediation of any Differing Site Condition and shall provide notice to the Owner if the costs or
extra expenses arising out of the remediation of a Differing Site Condition exceed 10% of the
Contingency.
ARTICLE 8 - INDEMNITY, INSURANCE AND BONDS
8.1 Indemnity, DESIGN-BUILDER COVENANTS AND AGREES To,AND DOES HEREBY
ASSUME LIABILITY, INDEMNIFY, HOLD HARMLESS AND DEFEND, AT ITS OWN EXPENSE,
OWNER, 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 WHATSOEVER KIND OR CHARACTER,
WHETHER REAL OR ASSERTED,ARISING OUT OF OR IN CONNECTION WITH,DIRECTLY OR
INDIRECTLY,THE WORK To BE PERFORMED CINDER THIS AGREEMENT, WHETHER OR NOT
CAUSED IN WHOLE OR IN PART BYANPACT, OMISSION OR NEGLIGENCE ON THE PART OF
THE OFFICERS,AGENTS, SERVANTS, EMPLOYEES, LICENSEESOR INVITEES OF OWNER.
DESIGN-BUILDER LIKEWISE COVENANTS AND AGREES To,AND DOES HEREBY,INDEMNIFY
AND HOLD OWNER HARMLESS FROM AND AGAINST ANY AND ALL INJURIES, LOSS, OR
DAMAGES To PROPERTY OF OWNER ARISING OUR OF OR IN CONNECTION WITH,
DIRECTLY OR INDIRECTLY, THE WORK To BE PERFORMED LINDER THIS AGREEMENT,
WHETHER ARISING OUT OF OR IN CONNECTION WITH OR RESUL TING FROM,IN WHOLE OR
IN PART,ANYAND ALL ALLEGED ACTS OR OMISSIONS OF OWNER'S OFFICERS,AGENTS,
SERVANTS, EMPLOYEES, LICENSEES OR INVITEES. THE INTENT OF THIS PARAGRAPH IS
To REQUIRE DESIGN-BUILDER To INDEMNIFY THE OWNER FOR ITS SOLE OR
CONCURRENT NEGLIGENCE; PROVIDED, HOWEVER, THIS INDEMNITY SHALL NOT BE
CONSTRUED SO AS To REQUIRE THE DESIGN PROFESSIONAL To INDEMNIFY OWNER OR
ANYONE UNDER OWNER FOR THE OWNER'S SOLE NEGLIGENCE.
NOTWITHSTANDING THE FOREGOING, DESIGN-BUILDER'S INDEMNITY OBLIGATION WITH
RESPECT To THE FIRST PHASE OF THE PROJECT, THE RENOVATION OF THE EXTERIOR
OF WAREHOUSE 2 AND THE CONSTRUCTION OF A FIRING RANGE WITHIN THIS
WAREHOUSE INCLUDING EGRESS/INGRESS To WAREHOUSE 2,SHALL CONTINUE UPON
SUBSTANTIAL COMPLETION OF SAME, HOWEVER, ONLY To THE EXTENT AN EVENT
TRIGGERING AN INDEMNITY OBLIGA7101ON IS CAUSED BY DESIGN-BUILDER OR ANYONE
AFFILIATED WITH DESIGN-BUILDER AND OWNER SHALL BE RESPONSIBLE FOR THE ACTS
OR OMISSIONS OF ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, LICENSEES,
INviTEES OR OTHER CONTRACTORS.
8.2 Design-Builder's Liability Insurance. The Design-Builder shall obtain and maintain
insurance coverage for the following claims which may arise out of the performance of this
Agreement, whether resulting from the Design-Builder's operations or from the operations of any
Subcontractors, their employees, or by an individual or entity for whose acts they are liable:
8.2.1 Claims under Workers' Compensation statutes or other disability benefits statutes
applicable to the Construction Work;
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8.2.2 Claims under applicable employer's liability statutes or laws for bodily injury,
occupational sickness, disease or death claims of the Design-Builder's employees;
8.2.3 claims for bodily injury, sickness, disease, death or damages to persons not
employed by the Design-Builder;
8.2.4 claims for personal injury disability for damages directly or indirectly related to the
person's employment by the Design-Builder;
8.2.5 Claims for damage to or destruction of tangible property;
8.2.6 Claims for bodily injury, death, or property damage resulting from motor vehicle
liability for motor vehicles used or operated by the Design-Builder;
8.2.7 Claims for contractual liability involving the Design-Builder's obligations under the
indemnity provided in this Agreement, to the extent that such coverage is provided by the
commercial general liability coverage.
8.2.8 claims for loss of use of Owner's property located at the Project site occurring
before Substantial completion.
8.2.9 The Design-Builder's liability insurance policies shall be written for not less than
the following limits of liability:
Commercial General Liability Insurance:
(a) Each occurrence limit: $1,000,000
(b) General Aggregate: $2,000,000
(c) Products/Completed Operations Aggregate: $2,000,000
(d) Personal and advertising Injury Limit: $2,000,000
Automobile Liability
$1,000,000 each accident on a combined single limit basis
Or
$250,000 Property Damage
$5001000 Bodily Injury per person per occurrence
A commercial business policy shall provide coverage on "Any Auto", defined as autos
owned, hired and non-owned.
Workers' Compensation
Statutory limits
Employer's liability
$100,000 Each accident/occurrence
$100,000 Disease - per each employee
$500,000 Bodily Injury/Disease - policy limit
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This coverage may be written as follows:
Workers' Compensation and Employers' Liability coverage with limits consistent with
statutory benefits outlined in the Texas workers' Compensation Act (Tex. Labor Code
Chapter 405) and minimum policy limits for Employers' Liability of $100,000 each
accident/occurrence, $500,000 bodily injury disease policy limit and $100,000 per
disease per employee
8.2.10 Commercial General Liability Insurance may be arranged under a single policy for
the full limits required or by a combination of underlying policies and an excess of umbrella liability
policy. Design-Builder shall notify owner immediately upon being made aware that Design-Builder's
insurance policy has lapsed, not renewed, or been canceled. Owner may order Design-Builder to
cease work for failure to maintain insurance coverage. Certificates of insurance showing required
coverage to be in force shall be filed with the owner prior to commencement or continuation of the
Construction Work. Products and completed operations insurance shall be maintained for a
minimum period of one year after the date of Substantial Completion.
8.3 Professional Liability Insurance. The Design-Builder shall obtain or require its Design
Consultants to obtain professional liability insurance for claims arising out of the negligent
performance of the professional services required under this Agreement. The professional liability
insurance shall be written for an amount not less than $2,000,000 per claim and in the aggregate,
with a deductible amount not to exceed $50,000. Such coverage shall be maintained for a period of
two (2) years following the date of Final Completion.
8.4 Builder's Risk Insurance. The Design-Builder shall obtain or require its Construction
Consultant to obtain and maintain All Risk Builder's Risk insurance for the Construction Work
required under this Agreement. This insurance shall include as named insureds the owner and the
Design-Builder. This insurance shall include all risk insurance for physical loss or damage including
without duplication of coverage, at least:theft, vandalism, malicious mischief, collapse,earthquake,
flood, windstorm, falsework, temporary buildings, debris removal, testing, and demolition resulting
from enforcement of any applicable legal requirements.
8.5 Additional Insurance Requirements.
8.5.1 The owner, its officers, employees and servants shall be endorsed as an
additional insured on Contractor's insurance policies excepting employer's liability insurance
coverage under Contractor's workers' compensation insurance policy.
8.5.2 Certificates of insurance shall be delivered to the City of Fort Worth, contract
administrator in the respective department as specified in the bid documents, 1000 Throckmorton
Street, Fort Worth, TX 75102, prior to commencement of work on the contracted project.
8.5.3 Any failure on part of the owner to request required insurance documentation
shall not constitute a waiver of the insurance requirements specified herein.
8.5.4 Each insurance policy shall be endorsed to provide the owner a minimum thirty
(30) days' notice of cancellation, non-renewal, and/or material change in policy terms or coverage.
A ten (10) days' notice shall be acceptable in the event of non-payment of premium.
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8.5.5 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.
8.5.6 Deductible limits, or self-funded retention limits, on each policy must not exceed
$10,000.00 per occurrence unless otherwise approved by the Owner.
8.5.7 Other than worker's compensation insurance, in lieu of traditional insurance,
Owner may consider alternative coverage or risk treatment measures through insurance pools or
risk retention groups. The Owner must approve in writing any alternative coverage.
8.5.8 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
Owner.
8.5.9 owner shall not be responsible for the direct payment of insurance premium costs
for contractor's insurance.
8.5.10 Contractor's insurance policies shall each be endorsed to provide that such
insurance is primary protection and any self-funded or commercial coverage maintained by Owner
shall not be called upon to contribute to loss recovery.
8.5.11 In the course of the project,contractor shall report,in a timely manner,to Owner's
officially designated contract administrator any known loss occurrence which could give rise to a
liability claim or lawsuit or which could result in a property loss.
8.5.12 Contractor's liability shall not be limited to the specified amounts of insurance
required herein.
8.5.13 Upon the request of Owner, contractor shall provide complete copies of all
insurance policies required by these contract documents.
8.6 Bonds and other Performance_Security.
8.6.1 Prior to the commencement of construction work on the Project, the Design-
Builder shall deliver to the Owner Payment and Performance Bonds, on a form acceptable to the
Owner, for the construction Work. The Payment and Performance Bonds shall name the Design-
Builder and the Owner as co-obligees,and shall each be in a penal sum equal to the estimated cost
of the construction Work. Additionally, the Design-Builder, its contractor, and the Owner shall
concurrently with delivery of the bonds, execute an agreement specifying the obligations of the
Design-Builder, its Contractor and the Owner in the event of a default in performance by Design—
Builder (see form of agreement, Attachment B; the executed supplemental agreement to be
attached hereto and incorporated herein for all purposes).
8.6.2 If any Maintenance Bonds are required, said Bonds shall be provided by the
Contractor performing the work and shall be in the name of and in favor of the Owner.All payment,
performance and maintenance bonds issued with respect to the Contractor shall be provided by a
surety in accordance with Texas Gov't code 2253.
8.6.3 No sureties will be accepted by the Owner that are at the time in default or
Design-Build Agreement Between owner and Design-Builder on Open Book Price Basis Page 21 of 29
Public Safety Training Center(August 2012)
delinquent on any bonds or which are interested in any litigation against the Owner. Should any
surety on the contract be determined unsatisfactory at any time by the owner, notice will be given to
the contractor to that effect and the contractor shall immediately provide a new surety satisfactory to
the owner.
8.7 CONTRACTOR COMPLIANCE WITH WORKER'S COMPENSATION LAW:
8.7.1 Definitions:
8.7.1.1 Certification of Coverage ("certificate") shall mean a copy of a certificate of
insurance, a certificate of authority to self-insure issued by the commission, or a coverage
agreement (TWCC-81, TWCC-82, TWCC-83, or TWCC-84), showing statutory workers'
compensation insurance coverage for the person's or entity's employees providing services on a
project, for the duration of the project.
8.7.1.2 "Duration of the project" includes the time from the beginning of the work on the
Project until the Construction Work on the Project has been completed and accepted by owner.
8.7.1.3 "Persons providing services on the project" includes all persons or entities
performing all or part of the services the Design-Builder's Contractor has undertaken to perform on
the Project, regardless of whether that person contracted directly with the contractor and regardless
of whether that person has employees. This includes, without limitation, independent contractors,
subcontractors, leasing companies, motor carriers,owner operators,employees of any such entity,
or employees of any entity which furnishes persons to provide services on the project. "Services"
includes, without limitation, providing, hauling, or delivering equipment or materials, or providing
labor, transportation, or other services related to a project. "Services" does not include activities
unrelated to the Work, such as food/beverage vendors, office supply deliveries, and delivery of
portable toilets.
8.7.2 Design Builder shall provide coverage, based on proper reporting of classification
codes and payroll amounts and filing of any coverage agreements, which meets the statutory
requirements of Texas Labor Code, Section 401.011(44) for all employees of the Design-Builder
providing services on the project, for the duration of the project.
8.7.3 Design-Builder must provide a Certificate of Coverage to the owner prior to being
awarded the contract.
8.7.4 If the coverage period shown on the Design-Builder's current Certificate of
Coverage ends during the duration of the Project, the Design-Builder must, prior to the end of the
coverage period,file a new Certificate of Coverage with the owner showing that coverage has been
extended.
8.7.5 The Design-Builder shall obtain from each person providing services on the
Project, and provide the governmental entity:
8.7.5.1 A Certificate of Coverage, prior to that person beginning work on the project, so
the Owner will have on file certificates of coverage showing coverage for all persons providing
services on the Project; and
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8.7.5.2 No later than seven days after receipt by the Design-Builder, a new Certificate of
Coverage showing extension of coverage, if the coverage period shown on the current certificate of
coverage ends during the duration of the project.
8.7.5 The Design-Builder shall retain all required certificates of coverage for the duration
of the project and for one year thereafter.
8.7.7 The Design-Builder shall notify the owner in writing by certified mail or personal
delivery,within ten (10)days after the Design-Builder knew of any change that materially affects the
provision of coverage of any person providing services on the Project.
8.7.8 The Design-Builder shall post on the project site a notice, in the text, form and
manner prescribed by the Texas Worker's Compensation commission, informing all persons
providing services on the project that they are required to be covered,and stating how a person may
verify coverage and report lack of coverage.
8.7.9 The Design-Builder shall contractually require each person with whom it contracts
to provide services on the Project, to:
8.7.9.1 Provide coverage, based on proper reporting on classification codes and payroll
amounts and filing of any coverage agreements, which meets the statutory requirements of Texas
Labor code, Section 401.011(44) for all of its employees providing services on the project, for the
duration of the Project;
8.7.9.2 Provide to the Design-Builder, prior to that person beginning work on the project,a
Certificate of Coverage showing that coverage is being provided for all employees of the person
providing services on the project, for the duration of the project;
8.7.9.3 Provide the Design-Builder, prior to the end of the coverage period, a new
Certificate of Coverage showing extension of coverage, if the coverage period shown on the current
certificate of coverage ends during the duration of the project;
8.7.10 Obtain from each other person with whom it contracts, and provide to the Design-
Builder:
8.7.10.1 Provide a certificate of coverage, prior to the other person beginning work on the
project; and
8.7.10.2 Anew Certificate of Coverage showing extension of coverage, prior to the end of
the coverage period, if the coverage period shown on the current certificate of Coverage ends
during the duration of the project.
8.7.11 Retain all required Certificates of Coverage on file for the duration of the Project
and for one year thereafter.
8.7.12 Notify the Owner in writing by certified mail or personal delivery, within ten (10)
days after the person knew or should have known, of any change that materially affects the
provision of coverage of any person providing services on the Project;
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8.7.13 Contractually require each person with whom it contracts,to perform as required
by paragraphs(1)-(7),with the Certificates of Coverage to be provided to the person for whom they
are providing services.
8.7.14 By signing this contract or providing or causing to be provided a Certificate of
Coverage,the Design-Builder is representing to the Owner that all employees of the Design-Builder
who will provide services on the Project will be covered by worker's compensation coverage for the
duration of the Project, that the coverage will be based on proper reporting of classification codes
and payroll amounts, and that all coverage agreements will be filed with the appropriate insurance
carrier or, in the case of a self-insured,with the commission's Division of Self-Insurance Regulation.
Providing false or misleading information may subject the Design-Builder to administrative, criminal,
civil penalties or other civil actions.
8.7.15 The Design-Builder's failure to comply with any of these provisions is a breach of
contract by the Design--Builder which entities the Owner to declare the contract void if the Design-
Builder does not remedy the breach within ten (10) days after receipt of notice of breach from the
Owner.
8.7.16 The Design-Builder shall post a notice on the Project site informing all persons
providing services on the project that they are required to be covered, and stating how a person may
verify current coverage and report failure to provide coverage. This notice does not satisfy other
posting requirements imposed by the Texas Worker's Compensation Act or other Texas Worker's
Compensation Commission rules. This notice must be printed with a title in at least 30 point bold
type and text in at least 19 point normal type, and shall be in both English and Spanish and any
other language common to the worker population. The text for the notices shall be the following
text, without any additional words or changes:
"REQUIRED WORKER'S COMPENSATION COVERAGE
The law requires that each person working on this site or providing services related to
this construction project must be covered by workers' compensation insurance. This
includes persons providing, hauling, or delivering equipment or materials, or providing
labor or transportation or other service related to the project, regardless of the identity of
their employer or status as an employee."
Call the Texas Worker's Compensation Commission at (512) 440-3789 to receive
information on the legal requirement for coverage, to verify whether your employer has
provided the required coverage, or to report an employer's failure to provide coverage".
ARTICLE 9 -SUSPENSION AND TERMINATION OF THE AGREEMENT
9.1 Suspension by the owner for Convenience. Owner may order Design-Builder in
writing to suspend, delay or interrupt all or any part of the Construction Work without cause for such
period of time as the Owner may determine to be appropriate for its convenience. To the extent the
time for performance of the Design/Construction Work is negatively and directly impacted by such
suspension, delay or interruption an equitable adjustment shall be made in the Contract Time. To
the extent that Design-Builder's costs in completing the Construction Work within the Contract Time
are directly increased by such suspension, delay or interruption an equitable adjustment shall be
made in the Contract Price. No adjustment shall be made if the Design-Builder is or otherwise
Design-Build Agreement Between Owner and Design-Builder on Open Book Price Basis Page 24 of 29
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would have been solely responsible for the suspension, delay or interruption of the Construction
Work, or if another provision of this Agreement is applied to render an equitable adjustment.
9.2 Termination bv the owner for Cause.
9.2.1 If Design-Builder fails to perform any of its obligations under this Agreement and
fails within ten days after receipt of written notice from Owner,through the PMO Program Manager,
of such failure to commence and continue correction of such failure,then the owner has the right to
enter the Project property and or any part thereof, and take possession of the Project and of all
books, records and accounts relating thereto and to exercise without interference from Design-
Builder any and all rights which Design-Builder has with respect to the management, possession,
operation, protection or preservation of the Project and may undertake to perform such obligations.
If necessary to obtain the possession provided for above, City may invoke any and all legal
remedies to dispossess Design-Builder, including specifically one or more actions for forcible entry
and detainer. The costs incurred by the Owner in performing or causing to be performed such
obligations, including to re-let any element of the Project, may be deducted from the Contract Price.
The remedies in this subsection are in addition to other remedies available to City and the exercise
of the remedies in this subsection shall not be deemed to be an election of non judicial or judicial
remedies otherwise available to City. Any disputed action under this section shall be resolved
pursuant to the terms for dispute resolution in this Agreement.
9.2.2 If Design-Builder fails to cure upon ten (10)days'written notice to Design-Builder
and any applicable surety, Owner may, after ten (10) days following the provision by Owner to the
Design-Builder of an additional written notice, terminate this Agreement for any of the following
reasons:
9.2.2.1 If Design-Builder utilizes improper materials and/or inadequately skilled workers;
9.2.2.2 If Owner receives notice that the Design-Builder has not, under Texas
Government Code Chapter 2251, made payment to laborers, material suppliers or Subcontractors,
provided that the Owner has fully paid to the Design--Builder in accordance with the terms of this
Agreement, the payment sought by such laborers, material suppliers or Subcontractor;
9.2.2.3 If Design-Builder fails to abide by the orders, regulations, rules,ordinances or laws
of governmental authorities having jurisdiction; or
9.2.2.4 If Design-Builder is in material breach of any other requirement of the Contract
Documents.
9.2.3 Owner may terminate this Agreement for cause if Design-Builder files a petition
under the Bankruptcy Code, and Design-Builder or the Design-Builder's trustee rejects the
Agreement or, if there has been a default, the Design-Builder is unable to give adequate assurance
that Design-Builder will perform as required by this Agreement or otherwise is unable to comply with
the requirements for assuming this Agreement under the applicable provisions of the Bankruptcy
Code.
9.2.4 In the event the Owner exercises its rights under Subparagraph 9.2-1, 9.2.2, or
9.2.3, upon the request of the Design-Builder, the Owner shall provide a detailed accounting of the
obligations or work of the Design-Builder performed by Owner and the cost incurred by the Owner in
Design-Build Agreement Between Owner and Design-Builder on open Book Price Basis Page 25 of 20
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performing such obligations or work.
9.3 Termination by the owner Without Cause. If Owner terminates this Agreement other than
as set forth in paragraph 9.2,then Owner shall pay Design-Builder for all design services performed,
all Work completed as of the termination date (including any withheld retainage), plus all proven
costs or expenses incurred in connection with demobilization and termination of the Construction
Work. Design-Builder shall not be entitled to any compensation for lost or anticipated profits.
Design-Builder's monthly Fee, as set forth in part(ii) of section 6.1.8, shall be paid for the month in
which termination under this section occurs.
9.4 Termination by the Design-Builder.
9.4.1 Upon seven (7) days' written notice to the Owner, the Design-Builder may
terminate this Agreement if the owner suspends the Work for sixty (60) consecutive days, unless
suspended pursuant to paragraph 9.1.
9.4.2 Upon termination by the Design-Builder in accordance with paragraph 9.4.1, the
Design-Builder shall be entitled to recover payment from the owner as if the owner had terminated
this Agreement under paragraph 9.3. Design-Builder shall not be entitled to any compensation for
lost or anticipated profits.
ARTICLE 10—MINORITYIWOMEN BUSINESS ENTERPRISE PARTICIPATION
10.1 The goals of Twenty five percent (25%) for design and Thirty percent (30%) for
construction (excluding the allowances for Franchise Utilities, Furniture, Fixtures and
Equipment and Training Equipment identified in Attachment A) have been established for
Minority and Women Business Enterprise(MMBE)participation in this Agreement. Design-Builder
shall fully comply with all requirements of Owner of Fort Worth Ordinance No. 15530 in meeting this
established goal.
10.2 In accordance with City of Fort Worth Ordinance No. 1 5530, Owner has goals for the
participation of minority business enterprises and woman business enterprises in owner's contracts.
Design-Builder acknowledges the MIWBE goal established for this contract and its commitment to
meet that goal.Any misrepresentation of facts(other than a negligent misrepresentation)and/or the
commission of fraud by Design-Builder may result in the termination of this agreement and
debarment from participating in Owner contracts for a period of time of not less than three(3)years.
ARTICLE 11 - MISCELLANEOUS,
11.1 Notices. All notices required to be given under this Agreement shall be deemed delivered
when deposited in the United States mail,first class postage prepaid, addressed to the recipient at:
Mr. Lee D. (Pat) Cornell
The Cornell FW Company, LLC
100 E. 15th Street, Suite 640
Fort Worth, Texas 76102
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CITY OF FORT WORTH
Mark Rauscher
Senior Capital Programs Manager
Program Management Office
1000 Throckmorton
Fort Worth, TX 70102
Copies of any formal notice may be sent via electronic transmission.
11.2 conflict in Terms. 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.
11.3 Governing-Law. The laws of the State of Texas shall govern this Agreement and the
parties agree that any suit arising out of or relating to this Agreement shall be exclusively in Tarrant
County, Texas or the Federal District court for the Northern District of Texas, Fort Worth Division.
11.4 No Waiver of Performance. The failure of either the owner or the Design-Builder to
insist, in any one or more instances, on the performance of any of the terms, covenants or
conditions of this Agreement, or to exercise any rights under this Agreement, shall not be construed
as a waiver or relinquishment of such term, covenant, condition or right with respect to further
performance.
11.6 Severabill The partial or complete invalidity of any one or more provisions to this
Agreement shall not affect the validity or continuing force and effect of any other provision.
11.6 Right to Audit.
11.6.1 Design-Builder agrees that Owner shall, until the expiration of three(3)years after
final payment under this contract, 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. Design-Builder agrees that the owner shall have access during normal
working hours to all necessary Design-Builder facilities and shall be provided adequate and
appropriate►workspace in order to conduct audits in compliance with the provisions of this section.
Owner shall give Design-Builder reasonable advance notice of intended audits.
11.6.2 Design-Builder shall include in all its subconsultant agreements and subcontracts
hereundera provision to the effect that the subconsultant and/or subcontractor agree that the Owner
shall, until the expiration of three(3)years after final payment under the subcontract, have access to
and the right to examine and photocopy any directly pertinent books, documents, papers and
records of such subconsultant or subcontractor involving transactions to the sub-agreement, and
further, that Owner shall have access during normal working hours to all subconsultant or
subcontractor facilities, and shall be provided adequate and appropriate work space, in order to
conduct audits in compliance with the provisions of this section. Owner shall give subconsultants or
subcontractors reasonable advance notice of intended audits.
11.6.3 Design-Builder agrees to photocopy such documents as may be requested by
Owner, and further agrees to include such a provision in any subconsultant or subcontractor
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agreement. Owner agrees to reimburse for the cost of copies at the rate published in the Texas
Administrative Code in effect as of the time copying is performed.
11.7. Additional Com ensation Anywhere in this Agreement where Design-Builder may be
entitled to additional compensation,the calculation to determine such additional compensation shall
not include any costs or expenses for any home-office overhead and expenses, and shall be limited
to the costs incurred at the Project site, examples of which include Project site trailer, Project site
utility costs, Project site supervision, Project Engineer(billed on hourly rate) and Project Manager
(based on hourly rate) and like Project site specific costs.
11.8. Inspection. Design/Builder agrees to provide access to the site at all times to owner and
inspectors from the City of Fort worth performing their normal duties associated with construction
sites within the City. In addition, the Owner shall have right to identify individuals who will be
permitted into the Work area to make observations for the sole purpose of determining if the Work is
being conducted in accordance with the construction Documents. These individuals shall have no
authority to direct any Subcontractor in the performance of the Work, but shall make all
communications directly to the Design/Builder. other than the City of Fort Worth and Owner
representatives, including the Owner's Representative described above, no other city employees
will be permitted on the work site until the Work is completed, unless notice is given to the
Design/Builder and Design/Builder consents to the other employees being on the work site.
11.9. Dispute Resolution: The Parties agree that in the event of a dispute regarding the
obligations of the Parties under this Agreement, prior to exercising any other remedy available
hereunder or otherwise provided by law, the Parties agree to meet and confer within 10 days of
receipt from one Party of written notice of a dispute, in an effort to resolve said issues. Should the
parties fail to resolve the disputed issues, then the Parties agree to submit the matter to mediation
within 30 days from the date the parties last met and conferred. If mediation fails to resolve the
disputed issues,the Parties may take any legal means of dispute resolution, including filing of suit in
a court identified in Section 11.3.
11.10. Additional Defined Terms:Where terms are capitalized and defined in sections other
than the Definitions, said terms shall be incorporated into this Agreement and used as defined.
11.11. Governin Board: The Owner will appoint a board who will make decisions throughout
the design and construction process relative to scope revisions and reductions.
SIGNATURE PAGE TO FOLLOW
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This Agreement is effective as of the last day executed by a Party hereto.
DESIGN-BUILDER CITY OF FORT WORTH:
The Cornea F Co any,
f
By: By:
Lee D. (Pat) Corn6ff Fernando Costa
Presiden Assistant City Manager
Date: Abo Date: JA07 b4d /if
Approved as to Form and Legality Approval R commended:
By: By:
Douglas W. Black and-le Ha&Aod
Assistant City Attorney Director, Planning and Developm�n�t�
Department
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Mary Y J. Kayser
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City Secretary
OFFICIAL RECORD
CITY SECRETARY
FTv WORTH,Tx
Design-Build Agreement Between Owner and Design-Builder on Open Book Price Basis Page 29 of 29
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iviau review
Official site of the City of Fort Worth,Texas
CITY COUNCIL AGENDA FoRTWouu
COUNCIL ACTION: Approved on 8/21/2012 -ordinance No. 20337-08-2012
REFERENCE 06PUBLIC SAFETY
DATE: 8121/2012 NO.: C-25798 LOG NAME: TRAINING CENTER
DESIGN BUILD
CODE: C TYPE: NON- PUBLIC NO
CONSENT HEARING:
SUBJECT: Authorize Execution of a Design-Build Contract with The Cornell FIN Company, LLC, at a
Guaranteed Maximum Price in the Amount of$97,522,957.00 to Design and Build the New
Public Safety Training Center at a Site Near the Intersection of Hemphill Street and Felix
Street,Authorize Non-Interest Bearing inter-Fund Loan Between the Solid Waste Fund and
the Public Safety Training Facility Fund in the Amount of$20,522,957.00 and Adopt
Appropriation ordinance (COUNCIL DISTRICT 9)
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize a non-interest bearing inter-fund loan from the Solid Waste Fund to the Public Safety Training
Facility Fund in the amount of$20,522,957.00 for interim financing of the new Public Safety Training
Center;
2. Adopt attached appropriation ordinance increasing estimated receipts and appropriations in the Public
Safety Training Facility Fund in the amount of$20,522,957.00; and
3. Authorize execution of a Design-Build Contract at a guaranteed maximum price in the amount of
$97,522,957.00 with The Cornell FW Company, LLC, to design and build the new Public Safety Training
Center.
DISCUSSION:
The purpose of this Mayor and Council Communication is to award a Design-Build (D-B) Contract with The
Cornell FIJ Company, LLC, at a Guaranteed Maximum Price (GMP) amount of$97,522,957.00 for the
design and construction of the new Public Safety Training Center on the property purchased last year from
the federal government through General Services Administration (GSA). It is also necessary to authorize a
non-interest bearing inter-fund loan in the amount of$20,522,957.00 between the Solid Waste Fund and
the Public Safety Training Facility Fund in order to provide interim financing for the project. This is
necessary due to the timing of funds being available from the Crime Control Police District (CCPD) and
from the sale of the Police Department's headquarters located at 350 Belknap to Tarrant County. The
remaining$77,000,000.00 will come from the sale of Certificates of obligation expected to occur on or
around August 14, 2012.
The current public safety training center located at 1090 Calvert Street was developed over the past 50
years to train the City's police and fire personnel. Due to its age, limited capacity and functionality, and the
impacts of the bypass channel associated with the Trinity River Vision project, it has become necessary to
replace the current facility. After an in-depth analysis of potential locations, Staff has determined that the
most appropriate location is the Federal Depot property located at 501 West Felix Street in south central
Fort Worth. This location has numerous benefits including good freeway access, central location, proximity
to current City facilities and existing zoning and infrastructure.
Last year, the City acquired the 75 acres of property through GSA at a cost of$6,425,000.00.
On July 26, 2012, the Crime Control Police District(CCPD)was presented with the option of using
http://apps.cfwnet.org/council—Packet/me—review.asp?ID=I7252&councildate=8/21/2012 812212012
$10,000,000.00 in CCPD funding to help pay for the cost of the new training center. Before being able to
commit any funding, however, two public hearings must be held. At its July 28, 2012 meeting, the CCPD
Board of Directors recommended moving forward with the public hearing process. The first hearing is
scheduled for the next CCPD Board meeting on August 30, 2012, followed by the second public hearing at
the September 18, 2012 City Council meeting. The $10,000,000.00 in funding from CCPD will not be
available until after the public hearing process has been completed and the City Council has approved the
use of CCPD funding.
Similarly, the sale of 350 West Belknap requires a formal advertisement process before the sale of 350
West Belknap can be considered by the City Council, which is expected to occur by the end of September
2012. In order to get the Public Safety Training Center project initiated without further delay, Staff
recommends moving forward with the inter-fund loan approach between the Solid Waste Fund and The
Public Safety Training Facility Fund. Timing is critical as the City is expected to have some its new facilities
in place, including the new Firing Range, by the end of December 2013 per the lease Agreement signed
with the Tarrant Regional Water District (M&C L-15288)when the current police/fire training facility was sold
last year.
Regarding the sale of 350 West Belknap, the County has agreed to purchase the City's share of the
building by the end of this fiscal year and has agreed in principle to the price of$13,500,000.00 which is in
tine with the City's appraisal. Staff will use $10,522,957.00 of the sale proceeds to reimburse the Solid
Waste Fund while an additional $335,520.00 will be used to pay TPW-Facilities Management for
Construction Administration Services. Because the County wants to begin using some office space and
parking shortly after they purchase the City's share of 350 West Belknap, it will be necessary to temporarily
move some Police staff out of their headquarters. This move will entail some additional costs to make
replacement space ready including IT, parking,and possibly some minor remodeling. It is also expected
that the County will charge a commercial lease rate for the space the City continues to use at 350 West
Belknap. All of these costs will be identified and brought forward as part of the upcoming Mayor and
Council Communication in September that will involve the sale of 350 West Belknap to the County. Lastly,
the Solid Waste Fund will also be reimbursed with the $10,000,000.00 in CCPD funding that is expected to
be approved by the City Council in September.
Due to the ambitious construction schedule, Staff determined that the only viable procurement option was
Design-Build (Dr-B),which is one of several contracting and delivery procedures for construction projects
authorized by Chapter 2287 of the Texas Government Code. Under a D-B model, the government entity
contracts with a single entity that provides both design and construction services. For projects on a tight
timeline, the D-B procurement method generally results in a quicker, more seamless delivery with fewer
change orders and delays than those typically associated with a traditional design-bid--build method.
The Request for Statements of Qualification (RFQ)from D_13 firms opened on January 13, 2012, and was
advertised in the Fort Worth Star-Telegram. A total of 15 teams responded. The selection panel shortlisted
four teams and issued a Request for Proposals to each that included a more detailed scope of
services. Upon receiving their proposals, interviews were held with each of the four teams on April 11,
2012. The selection committee assigned points for each proposer based on experience and qualifications
of the D-B team members, project scheduling, MIWBE participation, understanding of public safety training
centers in terms of their planning and functionality, and ability to finance and costing methodology. Based
on evaluation of the listed performance-based factors, The Cornell FW Company, LLC, received the most
points and was selected as the top ranked D-B firm based on the demonstrated ability to design and build
the Public Safety Training Center.
The Cornell FW Company, LLC, is in compliance with the City's MIWBE ordinance by committing to 25
percent MIWBE participation on the design phase and 30 percent MIWBE participation on the construction
phase of this D-B Project. This is achieved through the use of a joint venture for design between Komatsu
Architects, a certified MIWBE firm, and Brinkley-Sargent Architects and a second joint venture for
construction between Thos. S. Byrne, Ltd., a certified M1WBE firm, and Ridgemont Commercial
Construction. In addition to the MfWBE joint venture participation, The Cornell FW Company, LLC, has
committed to realize substantive MIWBE participation through the use of additional MIWBE subconsultants
and subcontractors. The City's MlWBE goal on the design phase is 25 percent and on the construction
phase is 30 percent.
This property is located in COUNCIL DISTRICT 9, Mapsco 91N.
'-•- .. �� �� �f vnPt nror/council packet/mc—review.asp?ID=1 7252&counciidate=812112012 8/2212012
1V�«r� ��V1�'■ 1 V J V1 u.V L .J
FISCAL INFORMATIONIXERTIFICATION:
The Financial Management Services Director certifies that upon approval of the above recommendations
and adoption of the attached appropriation ordinance, funds will be available in the current capital budget,
as appropriated, of the Public Safety Training Facility Fund.
TO Fund/Account/Centers FROM Fund/AccountlCenters
1 0236 222964_080900198790 $20,522:957.00 1)PE64 137236 0000000 $20,522=957.00
21C236 444100 461070198783 $10,522.957.00 3)C236 541200 961070198783 $87,522,,957.00
2 C236 472079 061090198783 $10,000,000-00 3)C236 541200 061090198783 $191000 000.00
2)C236 541200 061070198783 $10,522.957.00
2)C 36 541 240 061090198783 $10,000,000.00
Submitted for Cit y Manager's office by; Fernando Costa (6122)
originating_Department Head: Randle Harwood (6101)
Additional Information Contact: Mark Rauscher(2446)
ATTACHMENTS
06PUBLIC SAFETY TRAINING CENTER DESIGN BUILD A012.dec
draft 2012 CO Sale MC.htm
Public Safetv Traininq Center Site MC Map 08 21 12-ppt x
http-Happs.cfwnet.org/council 8/22/2012
Attachment C
SUPPLEMENTAL AGREEMENT
TO
PUBLIC SAFETY TRAINING CENTER DESIGN-BUILD AGREEMENT
THIS AGREEMENT, entered into and effective as of the last date signed by a party hereto,
is between the City of Fort 'worth. a Texas Home-Rule Municipality ("City"), The Cornell FW
Company, LLC, a Texas Limited Liability Corporation ("Design-Builder"), and a Joint Venture
between Thos. S. Byrne, Ltd. and The Ridgemont Company (collectively, "Contractor"). The City,
Design-Builder and Contractor are each a "Party" hereto and are sometimes referred to as the
"Parties".
WHEREAS, the City and Design-Builder have negotiated a Design-Build Agreement (the
"D-B Agreement") containing the terms and conditions for the Design-Builder and its associated
project team, including Contractor, to design and build for the City a Public Safety Training Center
(the "Project"); and
WHEREAS, in addition to the provisions in the D-B Agreement, the City requires written
assurance that Design-Builder will perform its obligations to construct the Project and pay its
Contractor as well as assurance that the City has adequate remedies should Contractor fail to honor
its obligations under the D-B Contractor Agreement
WHEREAS, Design-Builder and Contractor have negotiated an agreement between
themselves for work on the Project ("D-B — Contractor Agreement"), setting forth the terms and
conditions of their contractual relationship, a copy of which is attached hereto and incorporated
herein; and.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
herein contained, the Parties hereto mutually agree as follows:
ARTICLE I
FAILURE TO PERFORM
In the event that the Design-Builder fails to perform under the D-B —Contractor Agreement,
including failure to pay Contractor from sums received from City, and Contractor, in good faith,
determines Design-Builder to be in breach of the D-B — Contractor Agreement (allowing for any
negotiated time to cure), prior to exercising any rights it may have in the D-B — Contractor
Agreement, as same may pertain to Contractor suspending work, declaring a breach of contract, or
exercising any other lawful action it may possess, Contractor shall notify City in writing of the
apparent breach ("Notice"), such Notice to be provided by hand-delivery or registered mail, to the
PMO Program Manager assigned to the Pro j ect(as per the D-B Agreement).
Notwithstanding anything to the contrary in the D--B. — Contractor Agreement, upon receipt
of such Notice from Contractor, City shall have an automatic right, but not the obligation, to cure
CM-CORNELL-BYRNEIRIDGEMONT 3 Party Agreement I
the default, such cure to be provided no later than 30 days from the date Notice was received by
City.
Design--Builder's failure to pay Contractor shall be grounds for City to initiate any
appropriate proceedings under the D-B Agreement, including termination or for recovery of such
sums which were paid by City to Contractor in order to cure the apparent default.
Notwithstanding anything to the contrary in the D-B — Contractor Agreement, upon the
occurrence of an event causing the City to cure as described above, City shall also have the right,
but not the obligation, to make demand on the Design-Builder for immediate assignment of the D-B
— Contractor Agreement to the City. If such demand is made, Design-Builder hereby agrees to
immediately assign to City all of Design-Builder's right, title and interest in the D-B — Contractor
Agreement, and Contractor will accept performance by the City thereunder the same as if by
Design-Builder.
ARTICLE II
D-B --CONTRACTOR AGREEMENT
Design-Builder and Contractor each agree that the D-B — Contractor Agreement between
them shall not be amended or modified (except as to routine change orders or use of contingency,
with notice of same to City), terminated or assigned to any other person or entity, without first
seeking the City's express written consent. Any such amendment, modification, termination, or
assignment, without City's prior written consent, shall not be binding upon City.
ARTICLE III
NOTICE
Any Party issuing a Notice required by this Agreement shall also provide a copy of such
written notice to the other Parties to this Agreement and to any surety for any payment or
performance bond issued by Contractor to Design-Builder and/or City. Notice shall be addressed to
the following, or such other party or address as a Party designates in writing, by certified mail,
postage prepaid, or by hand delivery:
City: Design-Builder
Mark Rauscher Pat Cornell
PMO Program Manager The Cornell FW Company, LLC
City of Fort Worth 100 E. 15th Street, Suite 640
1000 Throckmorton St. Fort Worth, Tx 76 102
Fort Worth, TX 76102
With copies to: With copies to
Douglas W. Black Chip Heath
City Attorney's Office Project Director
City of Fort Worth 100 E. 15th Street, Suite 640
1000 Throckmorton St. Fort Worth, Tx 76102
Fort Worth, TX 76102
CFW-CORN ELL-BYRNE/RIDGEMONT 3 Party Agreement 2
Contractor Joint Venture AND
Thos. S. Byrne, Ltd. The Ridgemont Company
John Avila, Jr. Jason Lillard
President& CEO President& Principal
1520 W. walnut Lane 1520 W. walnut Lane
Irving, TX 75038-3701 Irving, TX 75038-3701
ARTICLE IV
TERM
This Agreement shall be for a term concurrent with the Design--Build Agreement and D-B —
Contractor Agreement, whichever shall last longer, as same may be extended, and shall be executed
and delivered concurrently with delivery of the bonds as provided for in paragraph 8.6.1 of the
Design-Build Agreement . This Agreement may not be terminated by a Party hereto without the
express written consent of all the other Parties.
ARTICLE V
GOVERNING LAW AND VENUE
This Agreement shall be deemed to be a contract entered into pursuant to the laws of the
State of Texas and shall in all respects be governed, construed, applied and enforced in accordance
with the laws of the State of Texas. Venue for any action brought under this Agreement shall lie
exclusively in state courts located in Tarrant County, Texas or in the United States District Court for
the Northern District of Texas, Fort Worth Division.
ARTICLE VI
GOVERNMENTAL POWERS
It is understood that by execution of this Agreement, the City does not waive or surrender
any of its governmental powers or immunities.
ARTICLE VII
SEVERABILITY
The provisions of this Agreement are severable, and if any word, phrase, clause. sentence,
paragraph, section or other part of this Agreement or the application thereof to any person or
circumstance shall ever be held by any court of competent jurisdiction to be invalid or
unconstitutional for any reason, the remainder of this Agreement and the application of such word,
phrase, clause, sentence, paragraph, section, or other part of this Agreement to other persons or
circumstances shall not be affectcd thereby and this Agreement shall be construed as if such invalid
or unconstitutional portion had never been contained therein.
ARTICLE VIII
COUNTERPARTS
This Agreement may be executed in one or more counterparts and each counterpart shall, for
all purposes, be deemed an original, and all such counterparts shall together constitute but one and
the same instrument.
CFW-CORNELL-BYRNEIRIDGEMONT 3 Party Agreement 3
IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement in
multiple originals in Fort Worth, Texas.
BY: BY:
CITY OF FORT WORTH THE CO LL F COMP , LLC
�j
Fernando Costa Lee D. (Pat) Comell
Assistant City Manager President
Date: a e D•t :
Approval Recom ended: THO S. BYR E C
By: By:
Randle Hiwood, Director John A la, Jr.
Planning and Development Department Preside & CEO
Date: (0(2414FOeDate: -Z2 -.-,
Approved as to Form and Legality THE RIDOEMONT COMPANY
By: By:
Douglas W. Black Jason and
Assistant City Attorney Presid nt & Principal
Date:
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CFW-CORNELL-BYRNEIRIDGEMONT 3 Party Agreement
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CITY COUNCIL AGENDA FoRTIVORT11
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COUNCIL ACTION: Approved on 812112012 -ordinance No. 20337-08-2012
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REFERENCE 06PLIBLIC SAFETY
DATE: 8/21/2012 NO.: C-25798 LOG NAME: TRAINING CENTER
DESIGN BUILD
CODE: C TYPE: NON- PUBLIC NO
CONSENT HEARING:
SUBJECT: Authorize Execution of a Design-Build contract with The Cornell FW Company, LLC, at a
Guaranteed Maximum Price in the Amount of$97,522,957.00 to Design and Build the New
Public Safety Training Center at a Site Near the Intersection of Hemphill Street and Felix
Street, Authorize Non-interest Bearing Inter-Fund Loan Between the Solid Waste Fund and
the Public Safety Training Facility Fund in the Amount of$20,522,957.00 and Adopt
Appropriation Ordinance(COUNCIL DISTRICT 9)
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RECOMMENDATION:
It is recommended that the City Council:
1. Authorize a non-interest bearing inter-fund loan from the Solid Waste Fund to the Public Safety Training
Facility Fund in the amount of$20,522,957.00 for interim financing of the new Public Safety Training
Center;
2. Adopt attached appropriation ordinance increasing estimated receipts and appropriations in the Public
Safety Training Facility Fund in the amount of$20,522,957.00; and
3. Authorize execution of a Design-Build Contract at a guaranteed maximum price in the amount of
$97,522,957.00 with The Cornell FW Company, LLC, to design and build the new Public Safety Training
Center.
DISCUSSION:
The purpose of this Mayor and Council Communication is to award a Design-Build (D-B) Contract with The
Cornell FW company, LLC, at a Guaranteed Maximum Price (GMP)amount of$97,522,957.00 for the
design and construction of the new Public Safety Training center on the property purchased last year from
the federal government through General Services Administration (GSA). It is also necessary to authorize a
non-interest bearing inter-fund loan in the amount of$20,522,957.00 between the Solid Waste Fund and
the Public Safety Training Facility Fund in order to provide interim financing for the project. This is
necessary due to the timing of funds being available from the Crime Control Police District(CCPD)and
from the sale of the Police Department's headquarters located at 350 Belknap to Tarrant county. The
remaining $77,000,000.00 will come from the sale of Certificates of obligation expected to occur on or
around August 14, 2012.
The current public safety training center located at 1000 Calvert Street was developed over the past 50
years to train the City's police and fire personnel. Due to its age, limited capacity and functionality, and the
impacts of the bypass channel associated with the Trinity River Vision project, it has become necessary to
replace the current facility. After an in-depth analysis of potential locations, Staff has determined that the
most appropriate location is the Federal Depot property located at 501 West Felix Street in south central
Fort Worth. This location has numerous benefits including good freeway access, central location, proximity
to current City facilities and existing zoning and infrastructure.
Last year, the city acquired the 75 acres of property through GSA at a cost of$5,425,000.00.
On July 25, 2012, the crime Control Police District(CCPD)was presented with the option of using
http://apps.cfwnet.org/councll_packet/mc review.asp?ID=17282&councildate=8/21/2012 8/22/2012
M&(-, Review rage 3 of 3
FISCAL INFORMATIONIXERTIFICATION:
The Financial Management Services Director certifies that upon approval of the above recommendations
and adoption of the attached appropriation ordinance, funds will be available in the current capital budget,
as appropriated, of the Public Safety Training Facility Fund.
TO Fund/Account/Centers FROM Fund/Account/Centers
1)0236 222064.000000198700 $20,522,957.00 ) PE64 137236 0000000 $20,522,957.00
2)C236 444100 061070198783 $10_,522,957.00 3)C236 541200 061070198783 $87,522,957.00
2)C236 472079 061090198783 $10,000,000.00 3)C236 541200 061090198783 $10,0001000.00
2)C236 541200 061070198783 $10,522.957.00
2)C236 541200 061090198783 $10,000,000.00
Submitted for City Manager's Office by: Fernando Costa (6122)
Originating department Head: Randle Harwood (6101)
Additional Information Contact: Mark Rauscher(2446)
ATTACHMENTS
06PUBLIC SAFETY TRAINING CENTER DESIGN BUILD A012.doc
draft 2612 CO Sale MC.htm
Public Safety Training Center Site MC I\Aap 08 21 12.pptx
http://apps.cfwnet.org/council_packet/mc_review.asp?ID=17282&councildate=812112012 5/22/2012