HomeMy WebLinkAboutContract 30504 1
CITY SECRETARY
CONTRACT NO .
STANDARD FORM OF DESIGN-BUILD AGREEMENT
BETWEEN OWNER AND DESIGN-BUILDER
ON OPEN BOOK PRICE BASIS
AGREEMENT made as of the �Iay of in the year of 200-4 between
the Design-Builder:
William E. Payne &Associates, Inc.
12150 E. Briarwood Avenue, Suite 120
Englewood, Colorado 80112
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 Air Traffic Control Tower, Spinks Municipal Airport, Ft. Worth,Texas
ARTICLE 1 - GENERAL PROVISIONS
1.1 Mutual Obligations. Design-Builder and Owner agree to fully cooperate with each other in
providing to each other information available, and in facilitating the design and Construction Work
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.
1.2 Extent of Agreement. 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. The Parties agree that this
Agreement represents the entire and integrated Agreement between the Owner and the Design-
Builder,and supersedes all prior negotiations,representations or agreements, either written or oral.
1.3 Architect/Engineer. 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 shall provide architectural and engineering services required forthe
project. The person or entity providing architectural and engineering services shall be referred to as
the Architect/Engineer.
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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.
1.4.2 The term "Contract Documents" shall mean (i) this Agreement; (ii) written
change orders and amendments to this Agreement, including exhibits and appendices signed by
both the Owner and the Design-Builder; (iii)the Design Criteria Documents as defined in paragraph
1.4.10; (iv) the information provided by the Owner pursuant to Subparagraph 3.2.2; (v) the
Schematic Design Documents as defined in paragraph 1.4.16 and (vi)the Open Book Price Proposal
as defined in paragraph 5.2.1.
1.4.3 The term "Contract Time" shall mean the number of calendar days stated in the
Price Proposal (as provided in paragraph 5.2.1) during which the Design-Builder has agreed to
achieve Substantial Completion of the Construction Work.
1.4.4 "Price Proposal"shall mean the cost of the design and construction proposed at the
time of execution of this contract.
1.4.5 The term "Contract Price" shall have the meaning defined in paragraph 5.1
1.4.6 "Guaranteed Maximum Price"(GMP)shall be the total cost of the project set at the
time the construction is authorized. The Design-Builder shall provide Payment, Performance Bonds
and Builders Risk Insurance in this amount. The Owner shall not be obligated to any costs in excess
of the GMP.
1.4.5 The term "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.
1.4.6 The term "Construction Work" shall mean all of Design-Builder's construction
services required by the Contract Documents, as defined in paragraph 1.4.2.
1.4.7 The term "Date of Commencement' shall have the meaning defined in paragraph
5.2.3, 5.2.4.1, or 5.2.4.3 as applicable. The Owner will promptly proceed to obtain all easements,
zoning changes, approvals, and other legal requirements to allow construction to proceed without
delay.
1.4.8 The term "day" or"days" shall mean calendar days unless otherwise specifically
noted in the Contract Documents.
1.4.9 The term "Defective Work" shall mean any portion of the Construction Work not in
conformance with the Construction Documents.
1.4.10 The term "Design Criteria Documents'shall mean the documents provided by the
Owner to the Design-Builder that provide sufficient basic programming information to permit the
Design-Builder to prepare a response to the Owner's request for proposal ("RFP"). The Design
Criteria Documents must specify functional design and construction criteria the Owner considers
necessary and salient to describe the Project. The Design Criteria Documents may include, as
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ON OPEN BOOK PRICE BASIS Page 2 of 26
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appropriate, the legal description of the site, survey information concerning the site, basic interior
space requirements, special material requirements, material quality standards,conceptual criteria for
this Project, special equipment requirements, cost or budget estimates, time schedules, quality
assurance and quality control requirements, site development requirements, applicable codes and
ordinances, provisions for utilities, parking requirements, or any other requirements determined by
the Owner to establish the salient characteristics of the proposed project.
1.4.11 The term "Design Consultants"shall mean the engineering or architectural firm(s)
employed by the Design-Builder 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.
1.4.12 The term "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 Schematic Design Documents or (ii) are of an unusual nature, differing materially
from the conditions ordinarily encountered and generally recognized as inherent in construction work.
1.4.13 The term "Hazardous Material(s)" 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.
1.4.14 The term "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, or its subcontractors.
1.4.15 The term "Project" is the building, facility, or other improvements at the location
provided by the Owner, which the Design-Builder has agreed to complete pursuant to the
requirements of the Schematic Design Documents, as defined in paragraph 1.4.16.
1.4.16 The term "Schematic Design Documents" shall mean the drawings, outline
specifications, and/or other conceptual documents illustrating the Project's elements, scale, and
features, which documents address the requirements of the Owner's Design Criteria Documents
submitted by the Owner to the Design-Builder. The Schematic Design Documents shall be the
documents prepared and submitted to the Owner with the Guaranteed Maximum Price("GMP"). The
Schematic Design 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.
1.4.17 The term "Subcontractor(s)" shall mean any party or entity retained by the Design-
Builder 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.
1.4.18 The term "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
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ON OPEN BOOK PRICE BASIS Page 3 of 26
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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.
1.4.19 The term "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.
1.4.20 The term "Open Book Price"shall refer to the price of subcontracts and purchases,
the site expenses for superintendence and professional services directly supporting the construction
effort plus agreed overhead and profit.
ARTICLE 2 - DESIGN-BUILDER'S SERVICES AND RESPONSIBILITIES
2. Design Services.
2.1 Siting Study: The Design-Builder shall prepare a siting study in accordance with Texas
Department of Transportation(TxDOT)and/or Federal Aviation Administration(FAA) requirements
prior to start of the Schematic Design. Should the Owner decide not to pursue the project; the
Owner shall pay the DESIGN-BUILDER the sum of$13,600.
2.2 Schematic Design: The Design-Builder shall prepare a schematic design 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. The Owner shall accept, in writing, the Schematic Design
prior to detailed design and execution of the construction. Should the Schematic Design and GMP
meet the Project Criteria and the Owner decide not to pursue the project; the Owner shall pay the
DESIGN-BUILDER the sum of$53,000.
2.3 Final Design: Pursuant to a mutually agreeable schedule,the Design-Builder shall submit for
the Owner's approval Construction Documents that meet the requirements of the Schematic Design
Documents, and any change orders executed by both the Owner and the Design-Builder after the
date of this Agreement and prior to the submission of the Construction Documents to the Owner.
2.4 Construction Documents. The Construction Documents shall set forth the requirements for
the Construction Work, and shall be based upon 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 affecting the performance of the Construction Work,the Contract Price and the Contract
Time shall be equitably adjusted to compensate the Design-Builder for the changes. 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 Schematic Design
Documents. Material changes, if any, between the Construction Documents and the Schematic
Design Documents necessitated by changes in codes, laws or regulations shall be documented bya
Change Order pursuant paragraph 7.2 equitably adjusting the Contract Price and/or the Contract
Time. Three (3) sets of the Construction Documents shall be fumished to the Owner prior to the
date of commencement of construction.
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2.5 Construction Services.
2.5.1 The Design-Builder agrees to timely complete the design and commence construction
to substantially complete the construction within the Contract Time. The Design-Builder and its
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.
2.5.2 The Design-Builder shall perform 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.
2.5.3 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 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 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 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.
2.5.2 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.
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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 will be at the
Owners sole risk. The Owner shall own the final, printed designs, drawings, specifications and
documents. Transfer of ownership of the contract documents does not constitute sale of the
documents.
2.5.3 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 a 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.
2.5.4 Hazardous Materials. The Design-Builder shall not be obligated to commence or
continue the Construction Work until all known or suspected Hazardous Material discovered at the
Project site not introduced onto the Project site by the Design-Builder have been removed or
rendered harmless by the Owner,as certified by an independent testing laboratory and approved by
the appropriate government agency.
2.5.4.1 The Design-Builder and its Subcontractors shall not knowingly enter upon any
portion of the Construction Work containing Hazardous Material. If after the commencement of the
Construction Work known or suspected Hazardous Materials are discovered at the Project, the
Design-Builder shall be entitled to immediately stop Construction Work in the affected area, unless
such Hazardous Materials are introduced onto the Project site by the Design-Builder. The Design-
Builder shall report the condition to the Owner, and, if required, the governmental agency having
jurisdiction. 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 it 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.
2.5.4.2 If potentially hazardous materials are discovered at the Project site that were not
introduced by the Design-Builder,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,otherwise the Design-Builder shall be
responsible for such testing. Such measures shall be the sole responsibility of the Owner,and shall
be performed in a manner minimizing any adverse effect upon the Construction Work of the Design-
Builder, unless such Hazardous Materials are introduced onto the Project site by the Design-Builder.
The 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.
2.5.4.3 If hazardous materials are encountered as a result of the Owners failure to identify
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or remove hazardous materials existing at the Project site prior to the commencement of
construction, the Owner agrees to (1) release the Design-Builder, its Subcontractors, and their
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 existing at the Project site prior to commencement of the Project; (2)
release the Design-Builder from any indemnification obligations in this Agreement as it relates to
Hazardous Materials only; (3) extend the Contract Time by the actual number of days that the
Design-Builder is delayed in the completion of the Contract Work arising out of or related to the
identification, testing, and abatement of the Hazardous Material existing at the Project site prior to
commencement of performance; (4) execute a Change Order increasing the Contract Price by any
costs or losses incurred by Design-Builder which arise out of the testing or abatement of the
Hazardous Material existing at the Project site prior to commencement of performance, or relate to
the performance of Construction Work in the area affected by the Hazardous Material prior to the
Design-Builder's discovery of the Hazardous Material existing at the Project site prior to
commencement of performance.
2.5.4.4 During performance of the Construction Work, the Design-Builder shall be
responsible for the proper handling of all 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.
2.5.4.5 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 attorneys fees,
arising out of or related to the Construction Work in any area affected by Hazardous Materials This
indemnification shall apply without regard to the fault, negligence, breach of warranty or
contract, or strict liability of the Owner and shall indemnify the indemnities for their own fault
or negligence.
2.6 Design-Builder's Warranty. Design-Builder warrants to Owner that all materials and
equipment furnished under this Agreement will be new, unless otherwise specified. The Design-
Builder also warrants to the Owner that all 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. The Design-Builder agrees to correct all Defective Work for
which the Owner provides notice to the Design-Builder within a period of one year from the date of
Substantial Completion. The Design-Builder shall collect written warranties as defined in the
contract documents from manufacturers, as well as all equipment manuals, and deliver them to the
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 Owners remedy to correct the
defective products, equipment, systems, or materials after the one-year period shall be exclusively
against the warranty of the manufacturer.
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ARTICLE 3 -OWNER'S RESPONSIBILITIES
3.1 Cooperation with Design-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-Builders 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,
Schematic Design Documents, and Construction Documents consistent with Owner's normal
business practices and within the negotiated times set forth in Design-Builders schedule.
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 Design Criteria Documents.
3.2.2 Unless expressly stated to the contrary in the Contract Documents, Owner shall
provide for Design-Builders information and use the following documents upon which Design-Builder
is entitled to rely upon in performing the Work:
3.2.2.1 Surveys describing the property, boundaries,topography and reference points for
use during construction, including existing service and utility lines;
3.2.2.2 Geotechnical studies describing subsurface conditions, and other surveys
describing other latent or concealed physical conditions at the Project site;
3.2.2.3 Temporary and permanent easements,zoning requirements,deed restrictions,and
other 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;
3.2.2.4 A legal description of the property upon which the Project is located;
3.2.2.5 To the extent available, as-built and record drawings of any existing structures at
the Project site; and
3.2.2.6 To the extent available, environmental studies, reports and impact statements
describing the environmental conditions, including Hazardous Conditions, in existence at the Project
site or which could affect the Project site.
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3.2.3 Owner is responsible for securing and executing all necessary 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. Owner is responsible for securing all zoning
approvals required for the Project as well as all easements necessary for the construction to proceed
without delay.
3.3 Approval of Schematic Design Documents. At the time of the Owner's approval of the
Open Book Price Proposal, as provided in paragraph 5.2, the Owner shall review, modify as
required, and approve the Schematic Design Documents provided to the Owner by the Design-
Builder. Upon the Owner's approval, the Schematic Design 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 assign John
Dawson as the Owner representative who shall be fully acquainted with the Project and who shall
have authority to bind the Owner in all matters requiring the Owner's approval, authorization, or
written notice. If the Owner changes its representative or the representative's authority as listed
above, the Owner shall notify the Design-Builder in writing, 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 contractually
require its separate contractors to cooperate with and coordinate their activities with Design-Builder,
so as not to interfere with Design-Builder in performance of this Agreement.
3.4.3 Owner shall provide or contract for, independently of the Design-Builder, the
inspection services, the testing of construction materials, and the verification testing services
necessary for acceptance of the Project.
3.4.4 Any change order in an amount greater than$25,000 requires the prior approval of
the City Council of the City of Fort Worth.
ARTICLE 4 -CONTRACT TIME.
4.1 Substantial Completion and Final Completion. Substantial Completion of the
Construction Work shall be achieved after the Date of Commencement,within the Contract Time as
specified pursuant to paragraph 5.2.1.4 and as extended pursuant to paragraph 4.2. 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 (60) days from the
date of Substantial Completion.
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
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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
interference in the Design-Builders performance of Construction Work,the presence of Hazardous
Materials at the Project site, 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,and/or unavoidable accidents or circumstances. Causes beyond
the control of the Design-Builder do not include negligent 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.
4.3 Liquidated Damages. Time is of the essence for the performance of this Contract. To
the extent that the Substantial Completion of the Project is not achieved by the Design-Builder within
the Contract Time, as adjusted pursuant to the provisions of paragraph 4.2, 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$200.00 per day shall be deducted from the total payment
due the Design-Builder for each day the Substantial Completion of the Project is delayed beyond the
Contract Time, as adjusted by the provisions in paragraph 4.2. The Owner and the Design-Builder
further agree that the amount of$200.00 per day is a reasonable expectation of the
Owner's probable damages, 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 the Project, and that such deduction of the liquidated damage amount is not for the
purpose of a penalty.
ARTICLE 5 -CONTRACT PRICE
5.1 Contract Price Owner shall pay Design-Builder, in accordance with Article 6 hereof, total
compensation ("Contract Price") not to exceed the Guaranteed Maximum Price.
5.2 Contract Cost
5.2.1 Guaranteed Maximum Price Proposal ("GMP"). The Design-Builder shall
submit a Price Proposal to Owner for each phase working toward a GMP, which shall include the
following information and documents:
5.2.1 A proposed price for performing the Construction Work, which amount shall
include the Design-Builder's Design fee. The price will be determined as follows:
5.2.1.1 Subcontract Costs (Actual contract plus 10%)
5.2.1.2 Design-Builders Overhead and Profit(4% of direct costs)
5.2.1.3 Management Fee (12% of total DESIGN-BUILDER cost)
5.2.1.4 Reimbursable Expenses (Cost plus 10%)
5.2.1.5 Design Fee (Open Book)
5.2.1.2 A copy of the Schematic Design Documents used as the basis for establishing the
GMP.
5.2.1.3 A list of the assumptions and clarifications made by Design-Builder in establishing
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the GMP, which list is intended to supplement the information contained in the Schematic Design
Documents.
5.2.1.4 The Contract Time upon which the proposed GMP is based;
5.2.1.5 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; and
5.2.1.6 The time limit for acceptance of the GMP Proposal.
5.2.2 Review and Adjustment to GMP Proposal After submission of the GMP
Proposal, Design-Builder and Owner shall meet to discuss and review the Schematic Design
Documents and the Price Proposal. 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. If appropriate, Design-Builder shall,
upon receipt of Owner's notice, make appropriate adjustments to the GMP Proposal.
5.2.3 Acceptance of Price Proposal 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. The Date of Commencement shall be ten (10) business days after Design-
Builder's receipt of Owner's acceptance of the GMP Proposal. Design-Builder will proceed with
completion of design 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 date specified in the GMP Proposal that it
accepts GMP Proposal, the GMP Proposal shall be 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 suggest 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 by payment to Design-Builder of$53,000 for
the preparation of the Schematic Design Documents, 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.
5.3 Adjustments to Price The GMP Price shall be equitably adjusted to provide for changes in
the scope of the Construction Work, including:
5.3.1 Delays encountered in performing the work caused by or resulting from acts or
omissions of the Owner, the Owner's representatives, or any Other Contractors;
5.3.2 Changes to the Project or Construction Work as provided in Article 7 hereof;
5.3.3 Additional work and/or delays caused by or resulting from the presence of
Hazardous Materials on the Project site other than materials brought onto the site by Design-Builder;
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5.3.4 The Owner's suspension of the work under this Agreement; or
5.3.5 Differing Site Conditions; and/or other occurrences or circumstances for which the
Design-Builder is entitled to a price adjustment under this Agreement.
ARTICLE 6 - PAYMENT
6.1 Schedule of Values.
6.1.1 Prior to submitting the first application for payment during the Construction Work,
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 Construction Work included
in the Lump Sum Price.
6.1.2 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 with 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 negotiate in good faith to resolve any such objection
before commencement of the Construction Work. 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 shall be entitled to an
adjustment of the Contract Time.
6.2 Monthly Progress Payments.
6.2.1 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.
6.2.2 Within ten (10) 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. The Owner's adjustment or rejection of an
application for payment shall only be based on a justification stated in paragraph 6.2.3. Within fifteen
(15) 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 amounts
previously paid by the Owner. 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.If
the Owner and Design-Builder cannot agree on a revised amount,the Owner shall pay directly to the
Design-Builder the amount of those items not rejected and the uncontested amount of items
adjusted, less amounts previously paid by the Owner. The items rejected or adjusted by the Owner
shall be due and payable when the reasons for the Owner's rejection or adjustment have been
removed or cured.
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6.2.3 Justification for Owner's Adiustment. 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:
6.2.3.1 The Design-Builder repeatedly fails to perform the Construction Work as required
by the Construction Documents;
6.2.3.2 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;
6.2.3.3 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, when the Owner has paid the Design-Builder for such
Construction Work;
6.2.3.4 The Design-Builder fails to correct Defective Work in a timely manner as provided
in this Agreement; or
6.2.3.5 If the unpaid balance of the Contract Price is insufficient to pay for the cost to
complete the Construction Work required under this Agreement.
6.2.3.5 When the above basis for rejecting or adjusting an application for payment has
been removed, the Owner will make payment within thirty (30) days to the Design-Builder for the
amounts previously withheld.
6.2.4 Retainage 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 under this Agreement.
6.2.5 Retainage After Substantial Completion. Upon Substantial Completion of
the Construction Work, the Owner shall pay the Design-Builder the unpaid balance of the Contract
Price, 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.
6.2.6 Owner's Failure to Pay. If the Owner fails to pay the Design-Builder at the
time payment of any amount becomes due, and such amount remains unpaid for a period of seven
(7) days, then (i) within three (3) Owner business days after the Owner's receipt of notice from the
Design-Builder of the Design-Builder's intention to cease work on the Project,the Design-Builder may
stop all work on the Project until full payment of the amount owing has been received by the Design-
Builder and (ii) within seven (7) days after the Owner's receipt of notice of termination from the
Design-Builder, the Design-Builder may terminate this Agreement. Payments due but unpaid
pursuant to this Agreement shall bear interest at the rate set forth for past due construction
payments in Chapter 2251 of the Texas Government Code.
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6.2.7 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
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.
6.3 Final Payment.
6.3.1 Upon 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").
6.3.2 Owner shall have 30 days to review and audit Design-Builder's Final Invoice. If the
Owner disagrees with the Design-Builder's Final Invoice notice thereof shall be provided to Design-
Builder not later than 35 days following Design-Builder's submission of its Final Invoice. Such notice
of disagreement must describe in detail those portions of the Final Invoice disputed and the
reason(s).
6.3.3 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.
6.3.4 In the event the final total 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 10 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.
6.3.5 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 amounts not timely
paid under this Agreement. To the extent any disputed entitlement to payment is resolved in favor of
the Design-Builder, such interest shall be paid on the amount determined to be due Design-Builder
from the original due date of the disputed payment.
ARTICLE 7 - CHANGES IN THE WORK
7.1 Changes in the Work. Changes in the Construction Work which are within the general scope
of this Agreement may be accomplished without invaliding the 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.
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7.2 Change Orders. The Owner may order changes in the Construction Work within the general
scope of the Construction Documents by a Change Order. All such changes in the Construction
Work shall be authorized by the Owner 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. Each adjustment in the Contract Price and/or Contract Time resulting from a Change
Order shall clearly separate the amount attributable to design services. The Owner and the Design-
Builder shall negotiate in good faith an equitable adjustment to the Contract Price and the Contract
Time and shall conclude these negotiations as expeditiously as possible. Neither the Design-Builder
nor the Owner shall unreasonably withhold acceptance of the Change Order, any adjustment in the
Contract Price, 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
will be increased by the amount of such additional costs plus fifteen percent(15%)of such costs for
Design-Builder's overhead and profit. The Design-Builder will 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 shall 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 that is
manmade, Design-Builder will 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 manmade Differing Site Condition, Design-Builder shall
provide prompt written notice to Owner of such condition,which notice shall not be later than five(5)
business days after the impact of such manmade Differing Site Condition has been determined by
Design-Builder. Design-Builder shall, to the extent reasonably possible, provide such notice in a
manner to allow the Owner to mitigate any costs or extra expenses arising out of the manmade
Differing Site Condition. Design-Builder waives any claim for additional time and/or compensation for
failure to provide written notice as required herein. Design-Builder shall not be entitled to any
additional compensation for a naturally occurring Differing Site Condition, but shall be entitled to and
adjustment in Contract Time.
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ARTICLE 8 - INDEMNITY, INSURANCE AND BONDS
8.1 Indemnity. DESIGN-BUILDER COVENANTS AND AGREES TO, AND DOES HEREBY
INDEMNIFY, HOLD HARMLESS AND DEFEND 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, THIS AGREEMENT, ITS OFFICERS,AGENTS,
EMPLOYEES,CONTRACTORS OR SUBCONTRACTORS,WHETHER OR NOT CAUSED IN WHOLE
OR IN PART BY ALLEGED NEGLIGENCE ON THE PART OF THE OFFICERS,AGENTS,SERVANTS,
EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES AND INVrrEES OF OWNER.
DESIGN-BUILDER DOES HEREBY COVENANT AND AGREE TO ASSUME ALL LIABILITY AND
RESPONSIBILITY OF OWNER, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES FOR
PROPERTY DAMAGE OR LOSS,AND/OR PERSONAL INJURIES,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, THIS AGREEMENT,
WHETHER OR NOT CAUSED, IN WHOLE OR IN PART, BY ALLEGED NEGLIGENCE OF OWNER,
ITS OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS,
LICENSEES, OR INVITEES. 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 DURING THE PERFORMANCE OF
THIS AGREEMENT, WHETHER ARISING OUT OF OR IN CONNECTION WITH OR RESULTING
FROM, IN WHOLE OR IN PART, ANY AND ALL ALLEGED ACTS OR OMISSIONS OF OWNER'S
OFFICERS, AGENTS, SERVANTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS,
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.
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;
8.2.2 Claims under applicable employer's liability statutes or laws for bodily injury,
occupational sickness, disease or death claims of the Design-Builders employees;
8.2.3 Claims for bodily injury, sickness, disease, death or damages to persons not
employed by the Design-Builder.-
8.2.4
esign-Builder;8.2.4 Claims for personal injury disability for damages directly or indirectly related to the
person's employment by the Design-Builder;
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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; and
8.2.7 Claims for contractual liability involving the Design-Builder's obligations under the
indemnity provided in this Agreement.
8.2.8 Claims for loss of use of Owner's property located at the Project site occurring
before Substantial Completion.
8.2.9 Claims for damage to boiler and machinery located at the Project site occurring
before Substantial Completion.
8.2.8 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
$500,000 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
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(Art.8308—1.01 et
seq. Tex. Rev. Civ.Stat.)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
8.2.9 Commercial General Liability Insurance may be arranged under a single policyfor
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the full limits required or by a combination of underlying policies and an excess of umbrella liability
policy. The policy shall contain a provisions that coverage will not be cancelled or not renewed until
at least thirty(30) days prior written notice has been given to the Owner. Certificates of insurance
showing required coverage to be in force shall be filed with the Owner prior to commencement 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
three (3) years following the date of final completion.
8.4 Builder's Risk Insurance. The Design-Builder shall 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 employers liability insurance
coverage under Contractors 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 76102, 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
days notice of cancellation, non-renewal,and/or material change in policy terms or coverage. A ten
days notice shall be acceptable in the event of non-payment of premium.
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.
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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 contractors 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 Ownees
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 The Design-Builder shall give the Owner surety in a sum equal to the amount of
the Lump Sum Price, as reduced by cost of the design services. The Design-Builder shall be
required to fumish bonds as follows. All bonds furnished hereunder shall meet the requirements of
Chapter 2253 of the Texas Government Code, as amended. In order for a surety to be acceptable to
the Owner, it must meet the requirements of V. A. T. S. Insurance Code, art. 7.19-1.
8.6.2 If the total Lump Sum Price as reduced by the cost of the design services is
$25,000 or less, payment to the Design-Builder shall be made in one lump sum. Payment shall not
be made for a period of 45 Calendar days from the date the work has been completed and accepted
by the Owner.
8.6.3 If the total Lump Sum Price as reduced by the cost of the design services is in
excess of$25,000, a Payment Bond shall be executed in the amount of the contract solely for the
protection of all claimants supplying labor and material in the prosecution of the work.
8.6.4 If the total Lump Sum Price as reduced by the cost of the design services is in
excess of $100,000, a Performance Bond shall be executed in the amount of the contract
conditioned on the faithful performance of the work in accordance with the plans, specifications,and
contract documents. Said bond shall solely be for the protection of the Owner.
8.6.5 A maintenance bond in the amount of 100% of the Lump Sum Price as reduced
by the cost of the design services to guarantee the work for a period of one(1)year after the date of
acceptance of the project from defects in workmanship and/or material.
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8.6.6 No sureties will be accepted by the Owner that are at the time in default or 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"). 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 contractor's/person's work on the project has been completed and accepted by the
governmental entity.
8.7.1.3 Persons providing services on the project("subcontractor"in§406.096)includes all
persons or entities performing all or part of the services the 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"
include,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 project, 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) or 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 governmental entity
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 governmental entity showing that
coverage has been extended.
8.7.5 The Design-Builder shall obtain from each person providing services on a 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
governmental entity 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.
8.7.6 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 governmental entity in writing by certified mail
or personal delivery, within ten (10) days after the Design-Builder knew or should have known„ 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 each 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 a 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 A new 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 governmental entity 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; and
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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 governmental entity 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.
8.7.15The Design-Builder's failure to comply with any of these provisions is a breach of
contract by the Design-Builder which entitles the governmental entity to declare the contract void if
the Design-Builder does not remedy the breach within ten days after receipt of notice of breach from
the governmental entity.
8.7.16 The Design-Builder shall post a notice on each 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 anyother
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 Work without cause for such period of time as the
Owner may determine to be appropriate for its convenience without additional compensation to the
Design-Builder. To the extent the time for performance of the Construction Work is impacted by
such suspension, delay or interruption an equitable adjustment shall be made in the Contract Price
and/or Contract Time. No adjustment shall be made if the Design-Builder is or otherwise would have
been soley 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.
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9.2 Termination by the Owner for Cause.
9.2.1 If Design-Builder persistently fails to perform any of its obligations under this
Agreement and fails within seven days after receipt of written notice from Owner of such failure to
commence and continue correction of such failure,then the Owner may undertake to perform such
obligations. The costs incurred by the Owner in performing such obligations may be deducted from
the Contract Price.
9.2.2 If Design-Builder fails to cure upon seven(7)days'written notice to Design-Builder
and Design-Builders surety, Owner may,after seven days following receipt by the Design-Builder of
an additional written notice, terminate this Agreement for any of the following reasons:
9.2.2.1 If Design-Builder persistently utilizes improper materials and/or inadequately skilled
workers;
9.2.2.2 If Owner receives notice that the Design-Builder has not made proper 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; or
9.2.2.3 If Design-Builder persistently 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 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-Builders 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.
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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
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 work completed as of the
termination date (including any withheld retainage), plus all proven losses, 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.
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 for any of the following reasons:
9.4.1.1 if the Work has been stopped for a sixty(60) day period;
9.4.1.2 if the Owner suspends the Work for sixty(60) days;
9.4.1.3 if the Owner fails to furnish reasonable evidence that sufficient funds are available
and committed for the entire cost of the Project; or
9.4.1.4 if the Owner has for seven (7) days failed to pay the Design-Builder pursuant to
Subparagraph 6.2.
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 A goal of twelve percent(12%)for design and twenty-four percent(24%)for construction
has been established for minority and/or women business enterprise(M/WBE) 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 accord with City of Fort Worth Ordinance No. 15530, Owner has goals for the
participation of minority business enterprises and woman business enterprises in Owner's contracts.
Design-Builder acknowledges the M/WBE 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.
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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:
William E. Payne &Associates, Inc.
12150 E. Briarwood Ave., Suite 120
Englewood, Colorado 80112
CITY OF FORT WORTH
Facilities Manager
Transportation and Public Works Department
1000 Throckmorton Street
Fort Worth, TX 76102
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.
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 Severability. 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.
11.7 Right to Audit.
11.7.1 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.
11.7.2 Design-Builder shall include in all its subconsultant agreements and subcontracts
hereunder a 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
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reasonable advance notice of intended audits.
11.7.3 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 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.
11.8. Additional Compensation 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.
S E"
This Agreement is entered into effective as of theday of 2004.
ATTEST: CITY FWORT
By:
Marty Hendrix rc A. Ott
City Secretary Assista City Manager
Approved as to Form and Legality Approval Recommended:
9Akss�isFtAnCity Attorney Robert Goode, P. E., Director
Transportation and Public Works
ATTEST: DESIGN-BUILDER
William E. Payne &Associates, Inc.
itn s
0. _tfX)11 jn .
'ontract Authoriantioa
rl-Q(7-a -
Date
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' • 2604 2:43PM No•5111 P. 2
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL AC11ON: Approved on 7/27/2004 -Ordinance No. 16051
Tuesday, July 27, 2004
AME: 55ATCTSPINKS REFERENCE NO.: "*C-20168
1 ECT:
-- -idment No. 1 to Texas Department of Transportation Design and Development Grant for a
gent Air Traffic Control Tower at Fort Worth Spinks Airport, Adoption of Appropriation
_:-Ice, and Award of Contract with WEP&A, Inc. for the Design and Constniction of the Air
�?05c Control Tower
7E MENDATION:
ammended that the City Council:
Authorize the City Manager to execute Amendment No. 1 to the Texas department of Transportation
xDOT) design and development grant for a permanent Air Traffic Control Tower at Fort Worth Spinks
' r�ort, increasing the overall grant amount from $1,000,000 to $1,222,223, of which $200,000 will be
- by TxDOT and $22,223 will be funded by the City; and
r. Authorize the transfer of$22,223 from the Aviation Capital Projects Fund to the Airport Grants Fund for
:1 a City's match; and
Adopt the attached appropriation ordinance increasing estimated receipts and appropriations in the
�, marts Grants Fund by $222,223; and
ti.s?horize award of the contract with WEP&A, Inc, for the design and construction of the Fort Worth
_';acts Air Traffic Control Tower(ATCT).
s!",:9_V_6 SM:
Cts 'May 27, 2003 (M&C G-13980), the City Council authorized the City Manager to apply for and accept a
c.+rant from the Texas Department of Transportation (TXDOT) in the amount of $1,000,000 to fund the
d'�-sign and development of a permanent Air Traffic Control Tower(ATCT) at Fort Worth Spinks Airport.
'-quest For Qualifications (RFQ) was published in the Commercial Recorder in November and
_ .ember of 2003. Four contractors submitted a Statement of Qualifications (SOQ's). An evaluation
^ mittee consisting of departmental representatives from Aviation, Development, Engineering and
Planning was convened to evaluate the SOQ's. Two contractors were recommended for further
'�id�ratibn and requested to submit formal proposals. Based on the review of the work scope, site
-r'-gig and anticipated costs for the project submitted by the two selected contractors, the committee
the candidates in the following order:
1) WEP&A, Inc.
2) Diamond K. Corporation
name: 55ATCTSPxNKS Page 1 of 2
2 4 7 I P. 3
commends awarding this contract to WEP&A, Inc. Staff was provided by WEP&A, Inc., a Design-
cuild cost for the ATCT not to exceed an estimated $1,119,250 for a total design and construction
program costs not to exeed $1,222,223. Actual costs will be based on bids received from third party sub-
,tractors, As As a result of the increase in estimated costs, TxDOT has offered an amendment to the grant,
Rasing the eligible amount to $1,222,223 in accordance with the program guidelines. A complete
"1_,V�nm of anticipated costs for this development is as follows:
Design-Build not-to-exceed cost $ 1,119,250
TPW Staff Management $ 15,000
--ict City Expenses(furniture,advertising. $ 44,500
;?Anting,survey/final plat, IT, utilities,testing,etc.) $ 43,473
Contingency
TOTAL PROGRAM COST $ 1,222,223
Fnbruary 29, 2000 (M&C G-12$36), the City Council authorized the sale of Certificate of Obligation
Vies 2000A, which included grant-matching funds for general improvements at Spinks Airport in the
amount of $1,000,000. Of these CO's, there is an available balance that can be used to support this
Project,
estimated timeline for design and construction is approximately 270 days from contract negotiation to
`1 acceptance and operational availability.
`''EP&A, Inc. is in compliance with the City's MWBE Ordinance by committing to 12% MNVBE for design
24% MtWBE participation for Construction.
property is located in COUNCIL DISTRICT$.
"fiCAt#INFORMATION/CERTIFICATION:
finance Director certifies that upon receipt of an executed grant amendment, approval and completion
above recommendations and adoption of the attached appropriation ordinance, funds will be
:ble in the current capital budget, as appropriated, of the Airport Grants Fund.
TO Fund/Account/Centers FROM Fund/A4gcQt�.t1t/C4'.tI l^$.
OR14 451942 0353QZ05Q0QQ $200,000-00 GC24 538070-055240439010 $22,223.00
GR14 472024 05530285900 $27.223.00
OR14 541200 Q55�0qp.5$91.Q =2.W.00
is for C Manager's Office b Marc Ott(8476)
3rjS0gt!pg f�e�astn en ead: Mike Feeley (5403)
AlTjgcnal Information Contact- Mike Feeley(5403)
55ATCTSPlNKS Page 2 of 2