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2008-11-10 Regular Meeting, Public Hearing and Workshop Meeting of the La Porte City Council
5 0 MINUTES OF A REGULAR MEETING, PUBLIC HEARING AND WORKSHOP MEETING OF THE LA PORTE CITY COUNCIL November 10, 2008 1. Call to order The meeting was called to order by Mayor Porter at 6:03p.m. Members of City Council Present: Mayor Porter, Mayor Pro-Tem Mike Clausen, Council members Tommy Moser, Mike Mosteit, Louis Rigby, John Black, Georgia Malone, Howard Ebow and Chuck Engelken Members of Council absent: None Members of City Executive Staff and City Employees Present: City Manager Ron Bottoms, Assistant City Attorney Clark Askins, City Secretary Martha Gillett, Police Chief Kenith Adcox, Assistant City Manager John Joerns, Finance Director Michael Dolby, Director of Public Works Steve Gillett, Emergency Management Coordinator Jeff Suggs, Tax Manager Kathy Powell, Planner Masood Malik, Purchasing Manager Susan Kelley, Golf Maintenance Superintendent Dennis Hlavaty, Director of Planning Tim Tietjens, Fire Chief Mike Boaze, and a number of other employees Others present: Adam Yanelli of the Bayshore Sun, Dottie Kaminski, Dean Syman, Ted Powell, Lori Druckenbrodt and John Kerbey, and a number of other citizens. 2. Reverend Michael Bingham of the Abundant Life Church of La Porte was not present to lead the invocation. The Invocation was led by Councilmember John Black. Mayor Porter led the Pledge of Allegiance 4. Presentations/ Proclamations Mayor Porter read a Proclamation for Kerron Clement for "Kerron Clement Day". Mr. Clement was not able to be at the meeting. Councilmember Howard Ebow will deliver the Proclamation to him in person. 5. Consent Agenda A. Council to consider approving minutes of the Regular Meeting and Workshop Meeting of the La Porte City Council held on October 27, 2008 - M. Gillett B. Council to consider approval or other action awarding Bid #09001 for chemical and fertilizer - S. Kelley C. Council to consider approval or other action for purchasing computer related items on the State DIR contract - J. Suggs Minutes of Regular Meeting, Public Hearing and Workshop Meeting held on November 10, Page 2 2008 Motion was made by Councilmember Mosteit to approve the consent agenda as presented. Councilmember Ebow seconded the motion. Motion carried. Ayes: Mosteit, Moser, Rigby, Black, Clausen, Malone, Ebow, Engelken, and Porter Nays: None Abstain: None Absent: None 6. Petitions, Remonstrance's, Communications, Citizens and Tax Payers wishing to address Council - (Limited to five minutes) John Kerbey — 3802 Marlin, La Porte, Texas 77571 — Mr. Kerbey advised he wanted to be listed on the agenda to speak about an arson problem at his home. He informed the Council he did not trust to speak on this item until his name was printed on the agenda. He would like to address the Council at the December 8, 2008 City Council Meeting. Lori Druckenbrodt, 11315 N. H St., La Porte, Texas 77571 — Ms. Druckenbrodt provided Council with a handout on electrical fencing. 7. Public Hearing - Council to consider recommendation of Planning and Zoning Commission regarding an ordinance amending Chapter 106 of the La Porte Code of Ordinances to allow the placement of electric fences on the premises of single-family dwellings - (Ord. 1501-L6). Open Public Hearing - Mayor Porter opened the Public Hearing at 6:16 p.m. Planning Director Tim Tietjens presented summary and recommendation and answered Councils' questions. Public comments: There were no public comments. Recommendation of the Planning ad Zoning Commission - recommended to Council to approve Ordinance 1501-1-6 amending Chapter 106 of the La Porte Code of Ordinances, Appendix - A "Fees", and Appendix - B "Fines" by allowing the placement of electric fences on the premises of single-family dwellings. Close Public Hearing — 6:20 p.m. 8. Council to consider approval or other action regarding Ordinance 1501-L6. Assistant City Attorney Clark Askins read Ordinance 1501-1-6, AN ORDINANCE AMENDING CHAPTER 106 "ZONING' OF THE CODE OF ORDINANCES OF THE CITY OF LA PORTE BY AMENDING ARTICLE V. "SUPPLEMENTARY DISTRICT REGULATIONS," DIVISION 4. 'FENCING AND LANDSCAPING REQUIREMENTS," Minutes of Regular Meeting, Public Hearing and Workshop Meeting held on November 10, Page 3 2008 SECTION 106-799 "CONSTRUCTION, MAINTENANCE OF ELECTRIC FENCES PROHIBITED," AMENDING APPENDIX-C 'FEES", AND AMENDING APPENDIX-B `FINES" OF THE LA PORTE CODE OF ORDINANCES IN ACCORDANCE THEREWITH, BY ALLOWING ELECTRIC FENCES ON THE PREMISES OF SINGLE-FAMILY DWELLINGS; PROVIDING A REPEALING CLAUSE; CONTAINING A SEVERABILITY CLAUSE; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; PROVIDING THAT ANY PERSON VIOLATING THE TERMS OF THIS ORDINANCE SHALL BE DEEMED GUILTY OF A MISDEMEANOR AND UPON CONVICTION SHALL BE FINED IN A SUM NOT TO EXCEED TWO THOUSAND DOLLARS; PROVIDING FOR THE PUBLICATION OF THE CAPTION HEREOF; AND PROVIDING AN EFFECTIVE DATE HEREOF. Motion was made by Councilmember Mosteit to approve Ordinance 1501-1-6 as presented by Mr. Tietiens. Councilmember Malone seconded the motion. Motion carried. Ayes: Mosteit, Moser, Rigby, Black, Clausen, Malone, Ebow, Engelken, and Porter Nays: None Abstain: None Absent: None 9. Public Hearing - Council to consider recommendation of Planning and Zoning Commission regarding Special Conditional Use Permit (SCUP) #SCU08-008 for approximately 1-acre tract located at 2226 Sens Road to allow use of two rooms at existing structure for bed and breakfast rental - (Ord. 1501-M6) Open Public Hearing - Mayor Porter opened the Public Hearing at 6:26 p.m. Planning Director Tim Tietjens provided summary and recommendation and answered Councils' questions. Public comments: Dean Wyman spoke in favor of the project. Mayor Porter closed the Public hearing at 6:31 p.m. Recommendation of the Planning and Zoning Commission — recommended to Council to approve Ordinance 1501-M6, by granting Special Conditional Use Permit #CSU08-008 for approximately 1-acre tract located at 2226 Sens Road to allow use of two rooms at existing structure for bed and breakfast rental. 10. Council to consider approval or other action regarding Ordinance 1501-M6 Assistant City Attorney Clark Askins read Ordinance 1501-M6, AN ORDINANCE AMENDING THE CODE OF ORDINANCES OF THE CITY OF LA PORTE, CHAPTER 106, MORE COMMONLY REFERRED TO AS THE ZONING ORDINANCE OF THE CITY OF LA PORTE, BY GRANTING A SPECIAL CONDITIONAL USE PERMIT #SCU08-008 Minutes of Regular Meeting, Public Hearing and Workshop Meeting held on November 10, Page 4 2008 FOR THAT CERTAIN PARCEL OF LAND DESCRIBED AS FOLLOWS, TO -WIT: DESCRIBED AS 1-ACRE TRACT OUT OF OUTLOT 241B, LA PORTE OUTLOTS, VOLUME 60, PAGE 11, H.C.D.R. ENOCH BRINSON SURVEY, ABSTRACT NO. 5, LA PORTE, HARRIS COUNTY, TEXAS FOR CONVERSION OF TWO ROOMS AT EXISTING BUILDING LOCATED AT 2226 SENS ROAD TO BED AND BREAKFAST RENTAL, LOCATED WITHIN THE GENERAL COMMERCIAL (GC) ZONE; MAKING CERTAIN FINDINGS OF FACT RELATED TO THE SUBJECT; FINDING COMPLINCE WITH THE OPEN MEETINGS LAW; AND PROVIDING AN EFFECTIVE DATE HEREOF; Motion was made by Councilmember Mosteit to approve Ordinance 1501-M6 as presented by Mr. Tietjens. Councilmember Ebow seconded the motion. Motion carried. Ayes: Mosteit, Moser, Rigby, Black, Clausen, Malone, Ebow, Engelken, and Porter Nays: None Abstain: None Absent: None 11. Council to consider approval or other action approving a Resolution to join Raise Your Hand Texas - (Res. 2008-13) - Mayor Porter Mayor Porter provided summary and recommendation and answered Councils' questions. Assistant City Attorney Clark Askins read Resolution 2008-13, A RESOLUTION TO SUPPORT RAISE YOUR HAND TEXAS. Motion was made by Councilmember Clausen to approve Resolution 2008-13 as presented by Mayor Porter. Councilmember Engelken seconded the motion. Motion carried. Ayes: Mosteit, Moser, Rigby, Black, Clausen, Malone, Ebow, Engelken, and Porter Nays: None Abstain: None Absent: None 12. Council to consider a resolution approving taxing unit guidelines for installment payments for residential homesteads with a minimum of 25% damage from Hurricane Ike - (Res. 2008-14) - M. Dolby Mr. Dolby provided summary and recommendation and answered Council's questions. Assistant City Attorney Clark Askins read Resolution 2008-14, A RESOLUTION AUTHORIZING RESIDENTS WHO SUSTAINED AT LEAST 25% DAMAGE FROM HURRICANE IKE TO RESIDENTIAL HOMESTEAD PROPERTY TO PAY AD VALOREM TAXES ON SAID PROPERTY IN QUARTERLY INSTALLMENTS, FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW, AND PROVIDING AN EFFECTIVE DATE HEREOF. Minutes of Regular Meeting, Public Hearing and Workshop Meeting held on November 10, Page 5 2008 Motion was made by Councilmember Rigby to approve Resolution 2008-14 as presented by Mr. Dolby. Councilmember Mosteit seconded the motion. Motion carried. Ayes: Mosteit, Moser, Rigby, Black, Clausen, Malone, Ebow, Engelken, and Porter Nays: None Abstain: None Absent: None 13. Council to consider approval or other action regarding an ordinance amending Chapter 78, Section 329 of the La Porte Code of Ordinances and Appendix - A "Fees" regarding permissible fees and charges for non -consent towing - (Ord. 2136-B) - T. Tietjens Planning Director Tim Tietjens presented summary and recommendation and answered Councils' questions. Assistant City Attorney Clark Askins read Ordinance 2136-B, AN ORDINANCE AMENDING CHAPTER 78 "VECHICLES FOR HIRE" OF THE CODE OF ORDINANCES OF THE CITY OF LA PORTE, BY AMENDING ARTICLE III 'AUTOMOBILE WRECKER AND TOWING VEHICLES", DIVISION 4 'REGULATIONS", SECTION 78-329 'PERMISSIBLE FEES AND CHARGES FOR NON -CONSENT TOWING" AND AMENDING CHAPTER 78 "VEHICLES FOR HIRE" OF APPENDIX -A "FEES" OF THE CODE OF ORDINANCES, INCREASE STORAGE FEES; AND TO ALLOW ADDITIONAL PER MILE CHARGE FOR OUT OF TOWN TOWS; PROVIDING FINDINGS OF FACT AND OTHER MATTERS RELATED THERETO; PROVIDING AFFIRMATIVE DEFENSES; PROVIDING FOR A PENALTY; PROVIDING A SEVERABILITY CLAUSE; CONTAINING AN OPEN MEETINGS CLAUSE; PROVIDING FOR THE PUBLICATION OF THE CAPTION HEREOF; AND PROVIDING AN EFFECTIVE DATE HEREOF. Motion was made by Councilmember Ebow to approve Ordinance 2136-B as presented by Mr. Tietiens. Councilmember Malone seconded the motion. Motion carried. Ayes: Mosteit, Moser, Rigby, Black, Clausen, Malone, Ebow, Engelken, and Porter Nays: None Abstain: None Absent: None 14. Council to consider approval or other action authorizing the City Manager to execute an agreement with Turner Construction Company for the construction of Municipal Court Building, including alternates 1 through 6, for a total cost of $3,083,500.00 and authorize an additional amount of $35,000.00 for cabling and telephone installation and a contingency of $74,500.00. Additionally, authorize the expenditure of $200,000.00 from the General CIP Contingency Fund - S. Gillett Public Works Director Steve Gillett presented summary and recommendation and answered Councils' questions. Minutes of Regular Meeting, Public Hearing and Workshop Meeting held on November 10, Page 6 2008 Motion was made by Councilmember Black to approve the recommendation as presented by Mr. Tietjens. Councilmember Moser seconded the motion. Motion carried. Ayes: Mosteit, Moser, Rigby, Black, Clausen, Malone, and Porter Nays: None Abstain: None Absent: None Councilmember Engelken left the meeting at 7:05 p.m. Councilmember Ebow had briefly left the table and was not present for this vote. 15. Council to consider approval or other action authorizing payment to HNTB Corporation for Residential Substantial Damage Estimate (RSDE) and safety inspections and other assessments in the amount of $180,000.00 - R. Bottoms City Manager Ron Bottoms presented summary and recommendation and answered Council's questions. Motion was made by Councilmember Clausen to approve the recommendation as presented by Mr. Bottoms. Councilmember Black seconded the motion. Motion carried. Ayes: Mosteit, Moser, Rigby, Black, Clausen, Malone, Ebow, and Porter Nays: None Abstain: None Absent: None 16. Receive report from the La Porte Development Corporation Board City Manager Ron Bottoms provided a report to Council from the La Porte Development Corporation Board. 17. Mayor Porter closed Regular Meeting at 7:20 p.m. and opened Workshop Meeting. A. Emergency Coordinator Jeff Suggs discussed Sungard Public Sector Application. Council directed staff to move forward on this project. 18. Mayor Porter closed Workshop Meeting and reconvened Regular Meeting at 7:28 p.m. 19. City Manager Ron Bottoms provided Administrative Reports for the following: La Porte Community Health & Safety Fair - November 8, 2008 - La Porte Junior High - 9:00 a.m. -1:00 p.m. Veteran's Day Ceremony - November 11, 2008 - Bulldog Stadium - 9:30 a.m. Minutes of Regular Meeting, Public Hearing and Workshop Meeting held on November 10, Page 7 2008 La Porte Community Club Annual Harvest Banquet - November 8, 2008 - 7:30 a.m. - Jennie Riley Center National League of Cities Conference - November 11-15, 2008 - Orlando, Florida Thanksgiving Holidays- November 27-28, 2008 Debris Update/Cut-off- November 30, 2008 City Council Meeting — December 8, 2008 20. Council Comments - Clausen, Moser, Black, Ebow, Engelken, Mosteit and Porter A. Matters appearing on agenda. B. Inquiry of staff requiring a statement of specific factual information for a recitation of existing policy. 21. Executive Session - pursuant to provision of the open meetings law, chapter 551.071 through 551.076, 551-087, Texas government code (consultation with attorney, deliberation regarding real property, deliberation regarding prospective gift or donation, personnel matters, deliberation regarding security devices, or excluding a witness during examination of another witness in an investigation, deliberation regarding economic development negotiations) A. 551.072 (Deliberation regarding Real Property) B. 551.072 (Deliberation regarding Real property) C. 551.074 (Personnel Matter) Council retired into Executive Session at 7:33 p.m. Meet with City Manager and City Attorney to discuss property exchange with Texas Department of Transportation Meet with City Manager and City Attorney to discuss an 80 acre tract on Bay Area Blvd. Evaluation of City Manager Councilmember Engelken returned to the meeting at 7:50 p.m. Council reconvened to Regular Meeting, Public Hearing and Workshop Meeting at 8:22 p.m. 22. Council to consider approval or other action of a Resolution requesting that a portion of State Highway Business 146 be removed from the State Highway System, from Wharton Weems Boulevard to State Highway 146 (BF146) - (Res. 2008-15) - R. Bottoms Minutes of Regular Meeting, Public Hearing and Workshop Meeting held on November 10, Page 8 2008 City Manager Ron Bottoms presented summary and recommendation and answered Council's questions. Assistant City Attorney Clark Askins read Resolution 2008-15, A RESOLUTION REQUESTING THAT A PORTION OF STATE HIGHWAY BUSINESS 146 BE REMOVED FROM THE STATE HIGHWAY SYSTEM FROM WHARTON WHEEMS BOULEVARD TO STATE HIGHWAY 146 (BF146D); FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; AND PROVIDING AN EFFECTIVE DATE HEREOF. Motion was made by Councilmember Engelken to approve the recommendation as Presented by Mr. Bottoms. Councilmember Malone seconded the motion. Motion carried. Ayes: Mosteit, Moser, Rigby, Black, Clausen, Malone, Ebow, Engelken, and Porter Nays: None Abstain: None Absent: None 23. Considerations and possible action on items considered in Executive Session. Motion was made by Councilmember Black to approve a 4% salary increase for Ron Bottoms and it will be reflected in his employment contract. Second by Councilmember Engelken. Ayes: Mosteit, Moser, Rigby, Black, Clausen, Malone, Ebow, Engelken and Porter Nays: None Abstain: None /_1ITT4i NZr:7ii- 24. There being no further business the Regular Meeting, Public Hearing and Workshop Meeting closed at 8:24 p.m. Respectfully submitted, a a Gillett, TRMC, CMC City Secretary Passed and approved on this 8th day of December 2008. Mayor Alton E. Porter I REQUEST FOR CITY COUNCIL AGENDA ITEM Agenda Date Requested: December 8, 2008 Requested By: John Joernc Department: As�is*e,e.aut City Manager Report: Resolution: Ordinance: Exhibits: Professional Services Agreement with Attachment B-4 and C Exhibits: Attachment A — Scope of Services Exhibits Exhibits A-1 and A-2 Appropriation Source of Funds: GEN960 Account Number: 015-9892-960-1100 Amount Budgeted: S325,000 Amount Requested: $79,5G34 Budgeted Item: YES NO SUMMARY & RECOMMENDATION We have negotiated a contract for professional service with Knudson and Associates for the Gateway Project at West Main and SH146. The major components of the scope of work are design of the gateway towers and lighting, landscaping and irrigation, ornamental iron fencing and brick columns, the parking lot design, and fagade demolition and design. The design is based on the conceptual design reviewed and approved by City Council on August 18, 2008. Also note that there is an anticipated contribution of $88,000 from Economic Alliance Port Region. The current estimate for construction is $486,950. The professional design service is based on time and materials, not to exceed $58,434, without further authorization. This is approximately 12% of the estimated construction cost. The agreement also includes a termination for convenience and budget reviews at 30%, 60% and 100% submittals. The estimated professional services, additional services (site/building feasibility), and reimbursables are as follows: ■ Professional Services $58,434 ■ Investigative/Feasibility 12,500 (drainage & building) ■ Reimbursables • Geotechnical 5,600 • Other 3.000 $79,534 The surveying is by City of La Porte. The La Porte Development Corporation approved this agreement at their December 1, 2008 meeting. Per the bylaws, this agreement also requires City Council approval. Action Required by Council: val of professional services agreement between La Porte Development Corporation and Knudson and authorize funding of $79,534. Ron Bottoms, 1�13 108 Date Knudson N 0080M 081125 PROFESSIONAL SERVICES AGREEMENT 11 This Professional Services Agreement (Agreement) is made this day of December, 2008, between Knudson, LP, a Texas Limited Partnership (Knudson) and the La Porte Development Corporation (Client). In consideration of the mutual promises set forth herein, the parties agree as follows: SCOPE OF SERVICES / SCHF,DULF.S AND DELIVERABLES Knudson will provide professional consulting services for the (Project), more fully described in the Scope of Services, Schedule and Deliverables attached hereto and made a part of this Agreement (Attachment A). GENERAL TERMS AND CONDITIONS BILLING AND PAYMENT Knudson will invoice monthly in accordance with the ATTACHMENT B 1 _ HOURLY RATE BASIS OF COMPENSATION. The Client hereby agrees to pay upon receipt of such invoice. A service charge of one and a half (1 Yz) percent per month will be charged on all balances remaining unpaid beyond thirty (30) days following receipt of invoice. In the event any portion of an invoice remains unpaid forty five (45) days after the invoice date, the Client agrees to pay the entire unpaid amount plus any and all actual and reasonable costs incurred to collect the outstanding balance, including collection costs and attorney fees. Knudson may stop all work (Stop Work Order) if the Client fails to pay invoices within forty five (45) days after Client's receipt of invoice. In order for Knudson to proceed with any further service or release any work product, Client will need to pay the entire balance on the Project in order to lift the Stop Work Order. It will also be necessary for Client to pay Knudson an additional fee for costs incurred by Knudson in mobilizing to complete the work. ADDITIONAL SERVICES Knudson will initiate regulatory reviews at the 60% and 90% stages of the Construction Documents Phase. Knudson will use best efforts to assist the Client to obtain approvals from regulatory authorities and necessary permits, however, Knudson does not guarantee or warrant Approval by regulatory authorities or that all permits will be approved. Should changes be required to the Construction Documents after acceptance by the City in order to obtain the approvals or permits, this will be considered additional services and Knudson will be reimbursed by the Client for additional time or services required in connection therewith. After acceptance of the 60% Construction Documents, if the Client make changes to the Project Scope or Schedule resulting in additional work required of Knudson, these changes will be considered additional services for which Knudson will be reimbursed by the Client. TERMINATION This Agreement may be terminated at any time by Knudson or Client should the other party fail to perform any material obligations hereunder, or by the Client for its convenience, by giving thirty (30) days written notice of such termination by registered or certified mail or 1 of 7 Knudson # 0090990 081 M nationally/regionally recognized overnight courier or delivery service to the either party's principal place of business. Upon receipt of Termination Notice, Knudson will immediately stop work and incur no further charges or expenses related to this Agreement. If this Agreement is terminated, Knudson shall be paid in accordance with the provisions of this Agreement for all work performed up to the date of termination, all reimbursable expenses, as well as other reasonable costs and expenses incurred by Knudson related to the termination. ACCESS TO THE. SITE Unless otherwise stated, and to the extent within Client's control, Knudson will have access to the Project site for activities necessary for the performance of the services. UNKNOWN CONDITIONS AND HAZARDOUS MATERIALS Knudson shall have no responsibility for the discovery, presence, handling, removal, disposal or exposure of persons to hazardous materials of any form. Should I lazardous materials, unknown or hidden conditions be discovered on the site, the schedule may be affected and additional costs may be incurred by Knudson. These costs will be reimbursed by the Client, and any necessary adjustments in the schedule resulting therefrom will be approved by the Client. INDEMNIFICATIONS Each party agrees to indemnify and hold harmless the other and all of the other party's personnel, employees and agents from and against any and all claims, damages, losses and expenses (including reasonable attorneys fees) arising out of or from the performance of the services, to the extent that any such claims, damage, loss or expense is caused in whole or in part by the negligent act or omission or strict liability of the indemnifying party, anyone directly or indirectly employed by the party (except Knudson, in the case such party is Client) or anyone for whose acts any of them may be liable. Knudson will perform its services in a manner consistent with the usual and customary level of care and skill ordinarily exercised by other professional consultants providing similar services in locations and similar circumstances at the time the Services are performed. The above indemnification shall include any claim, damage or losses due to the presence of hazardous materials. LIMITS OF LIABILITY In recognition of the relative risks, rewards, and benefits of the project to both the Client and Knudson, the Client hereby agrees that the risks shall be allocated so that, to the fullest extent permitted by law, Knudson's total liability to the Client, for any and all claims, losses, expenses, damages or claim expenses arising out of this agreement, from any cause or causes, shall not exceed the total amount of Twenty -Thousand dollars ($20,000), or the amount of the Knudson's fee, whichever is greater. Such causes include, but arc not limited to, Knudson's negligence, errors, omissions, strict liability, breach of contract or breach of warranty. DISPUTE RESOLUTION The parties to this Agreement will attempt in good faith to resolve any controversy or claim arising out of or relating to this Agreement promptly by negotiation between senior executives of the patties who have authority to settle the controversy. 2of7 Knudson # 0080(w 081125 The disputing party shall give the other party written notice of the dispute via certified mail, or nationally recognized commercial delivery service. Within ten days after receipt of said notice, the receiving party shall submit to the other a written response. The notice shall include (a) a statement of each party's position and a summary of the evidence and arguments supporting its position, and (b) the name and title of the executive who will represent that party. The executives shall meet at a mutually acceptable time and place within twenty calendar days of the date of the disputing party's notice and thereafter as often as they reasonably deem necessary to exchange relevant information and to attempt to resolve the dispute. If the controversy or claim has not been resolved within thirty days of the meeting of the senior executives, the parties shall endeavor to settle the dispute by mediation under the Center for Public Resources Model Procedure for Mediation of Business Disputes, or pursue amicable termination of this Agreement. If the matter has not been resolved pursuant to the aforesaid mediation procedure within sixty days of the commencement of such procedure, (which period may be extended by mutual agreement), of if either party will not participate in such procedure, the parties shall pursue amicable termination. FORCE MAJEURE The term force majeure as used herein shall mean an unforeseen event, occurrence beyond the control and without the fault or negligence of a party including, but not limited to: earthquake, weather, flood, fire, explosion, malicious mischief, insurrection, riot, labor strike, lockouts, boycott, acts of a public enemy, war, compliance with any order or directive of any governmental agency. To the extent that a party's performance under this Agreement is rendered impossible or impracticable due to force majeure, that party shall be relieved of any further obligation under this Agreement except as to obligations incurred prior to the force majeure event which by their nature survive termination, including payment and indemnity obligations hereunder. OWNERSHIP OF DOCUMENTS All documents produced by the Knudson under this Agreement shall remain the property of Knudson as evidence of service and may not be used by the Client for any endeavor without the written consent of the Knudson prior to payment of all outstanding invoices. After payment of all outstanding invoices, ownership of all documents transfers to the Client as work for hire. Electronic documents prepared by Knudson as part of the scope of work will be supplied in a read only format. No modification, manipulation or use of these electronic documents is allowed without the express written approval of Knudson. Any modification, manipulation or use of these documents by the owner, whether approved by Knudson or not, is the responsibility of the owner. Knudson assumes no responsibility for documents modified or manipulated by anyone other than Knudson. Knudson assumes no responsibility for the accuracy of data supplied by others but used by Knudson in the preparation of any document required by the scope of work. Knudson retains ownership and all copyrights of these documents in a format which can be modified. Once all Knudson invoices are paid, ownership in a (one) read only version of each document will be transferred to the owner, if requested. Knudson is not responsible for supplying software, licensees or hardware which the owner made need to read the electronic version of any 3 of 7 Knudson # 0080990 081125 documents supplied as part of the scope of services. The owner will obtain all software, licensees and hardware to view the documents at its own expense. ENTIRE AGREEMENT This Agreement and any attachments or exhibits hereto represent the entire Agreement between Knudson and Client. There are no prior unwritten, oral, or other agreements between the parties regarding this matter. This Agreement may be amended or modified only with the approval of both Knudson and Client. CLIENT CONTACT INFORMATION The Client contact, primary business location, address of Client is: John Joerns Assistant City Manager City of La Porte 604 W. Fairmont Parkway l.a Porte, Texas 77571 The Client's phone number is: 281.470.5012 The Client's e-mail address is: joemsj@laportetx.gov The Clients Project Name is: La Porte — Architectural Gateway These shall be used by Knudson for all contract correspondence and invoices. Should any of the Clients contact information change Client will notify Knudson of the new contact information. KNUDSON CONTACT INFORMATION Knudson primary business location and address is 8588 Katy Freeway, Suite 441, Houston, Texas 77024. The Knudson Phone Number is 713-463-8200 and contact person for this contract is: Jarl Molander, RE - Chief Operating Officer (CONTINUED ON FOLLOWING PAGE) 4 of 7 Knudson # 0080990 081125 ACCEPTANCE When executed by both parties this Agreement shall evidence the entire agreement between Knudson and Client. This document is being executed in two (2) counterpart originals with attachments, each of which has the full force and effect of an original. AGREED AND ACCEPTED THIS 01 DAY OF DECEMBER, 2008 KNUDSON, LP By: Signature Jarl W. Molander, P.E. Chief Operating Officer CIEN Typed Name PREs�n�� 1-4 ►2DKIE Title �-291MfArIOIV f3,2AR D CLIENT Signature Typed Name Title This Agreement includes Attachments A, B-1, and C, which are hereby incorporated into this Agreement as if written directly herein. 5 of 7 Knudson # 0080990 081125 ACCEPTANCE When executed by both parties this Agreement shall evidence the entire agreement between Knudson and Client. This document is being executed in two (2) counterpart originals with attachments, each of which has the full force and effect of an original. AGREED AND ACCEPTED THIS 6 DAY OP DECEMBER, 2008 K UDSON, LP r t By; Sr a Jarl W. Motander, P.E. Chief Operating Officer CLIENT Typed Name Title CLIENT Signature Typed Name Title This Agreement includes Attachments A, B-1, and C, which are hereby incorporated into this Agreement as if written directly herein. 5 of 7 Knudson N 008W)O "ATTACHMENT A" KNUDSON, LP SCOPE OF SERVICES LA PORTE — ARCHITECTURAL GATEWAY CITY OF LA PORTE November 25, 2008 The following is a summary of Landscape Architectural Design services and deliverables to be provided by Knudson, LP for the development of the La Porte — Architectural Gateway, located in La Porte, Texas. This Scope of Services and the Basis of Compensation are based on the attached conceptual site plan, labeled "Exhibit A-1" and design perspective, labeled "Exhibit A-2", which includes the following: • Landscape planting design and construction details • Landscape irrigation design and construction details • Site urban design and construction details: • Pedestrian paving • Outdoor furniture specification • Ornamental iron fencing • Ornamental brick columns • Site urban design and architectural gateway lighting design • Architectural gateway 'icon' design and construction details • Architectural gateway 'icon' structural pier design and construction details ■ Parking lot re -alignment and paving ■ Parking lot drainage design and grading • Building modifications: • Construct a higher parapet wall • Fagade improvements — doors and windows • Possible roofing improvements • Possible electrical improvements • Possible integration of Gateway Monument into building structure Please note that the "Alleyway" behind the building Is not within this Scope. 1. Project Initiation a. Knudson will conduct an initial project design team meeting with the City and sub -consultants to confirm the design program, project schedule and general design requirements. This includes a tour of the project area to familiarize all team members with key design and engineering concerns. b. Collection and creation of project base files (base maps) from the Survey provided by the City. III. Site Engineering Feasibility a. Drainage i. Investigate existing storm drainage facilities and their capacities to determine possibility of lowering parking lot to reduce flooding of building from parking lot. ii. Contact and meet with TxDOT officials to see what requirements they have for connecting to their drainage system along SH 146. Page 1 of 4 November 25, 2008 " Knudson # 0080990 uALI d s n U b. Water & Sewer i. Investigate existing water and sanitary sewer systems to confirm that both water and sanitary sewer systems have capacity for a restaurant operation. c. Rights of Way and Easements L Confirm limits and stipulations of existing rights -of -way and easements, if applicable. d. Engineering Feasibility Report L Provide a brief narrative, with exhibits as found appropriate, identifying key site design and development issues that may affect the Scope of work. Ill. Building Engineering Feasibility a. Structural L Investigate existing building wall and roof system to determine if existing structure can support addition to parapet wall. ii. Investigate existing building wall and roof system to determine if new monument can be integrated into existing structure, or if the new monument must be free standing. b. Electrical L Investigate existing building wall to see if there are circuits that will be affected by modifications to the wall structure. ii. Determine if exterior improvements will cause Electrical Code upgrades. c. Engineering Feasibility Report L Provide a brief narrative, with exhibits as appropriate, identifying key building condition and construction issues that may affect the Scope of Work. IV. Construction Document Phase — 30%, 60% and 90% Submittals a. Based on the approved Conceptual Design that was presented to the Economic Alliance and City of La Porte officials on 08.18.08, Knudson will prepare Construction Documents consisting of Drawings and Specifications setting forth in detail the requirements for construction of the project and will show the location, configuration and characteristics of the proposed site features as follows: L Site Improvements 1. Demolition Plan 2. Site Plan 3. Storm Water Protection Plan 4. Planting Plan: showing planting locations, quantities and recommended plant species 5. Irrigation plan: showing main line routing, head layout, valves, pipe size and irrigation controller location 6. Paving plan for pedestrian and vehicular areas, including paving layout and material selection 7. Parking lot grading and drainage design 8. Architectural gateway design, accent material selection and construction detailing Page 2 of 4 November 25, 2008 p Knudson # 0080990 aLA d s n 9. Landscape and architectural gateway lighting layout and fixture selection 10. Specifications — CSI format 11. Estimate of Probable Construction Cost 12. Design and Engineering Fee Budget Status ii. Building Modifications 1. Demolition Plan 2. Structural Modifications 3. Fagade Improvements 4. Roof Improvements 5. Specifications 6. Estimate of Probable Construction Cost 7. Design and Engineering Fee Budget Status b. Knudson will participate in coordination meetings with the Civil Engineer, Architect, Structural Engineer and Electrical Engineer to coordinate parking lot grading and drainage, structural pier design, as well as improvements to the building. c. Knudson will attend the following Construction Document progress review meetings with the City of La Porte. i. 30% Completion — 1 meeting ii. 60% Completion —1 meeting iii. 90% Completion —1 meeting V. Bidding and Contract Phase a. Knudson will provide the following Professional Services during the Bidding and Contract Phase: I. If required, assist with pre -qualification of bidders ii. Assist City with processing of bidder inquiries and issuing addenda iii. Assist City with evaluation of bids b. Attend pre -bid and bid opening meetings c. Provide recommendation for award of construction contract. Vi. Construction Administration Phase Services a. Attend the Pre -Construction Meeting b. Review and approve or take other appropriate action upon Contractor's submittals such as Shop Drawings, Product Data, Samples, and Request for Information, but only for the limited purpose of checking for conformance expressed in the Construction Documents. c. Attend one Construction Progress Meeting per month to observe construction for general conformance with the Construction Documents and to assist the City in review of the Contractor's pay application. VIi. Basis of Compensation a. Knudson, LP will provide the Project Initiation and Engineering investigations described above on an Hourly Rate Basis, with "Not To Exceed" limits as follows: i. Project initiation $ 2,500.00 ii. Site Engineering Feasibility $ 7,500.00 iii. Building Engineering Feasibility $ 3,500.00 Subtotal $12,500.00 Page 3 of 4 November 25, 2008 K Knudson # 0080990 n w d S OW b. Knudson will provide Construction Document Phase, Bid Phase and Construction Phase Services on an hourly rate basis, not to exceed $58,434.00 without additional authorization by Client. This fee basis assumes a single construction contract for all site and building improvements and a construction schedule of four (4) months. c. Invoices will be issued monthly to reflect work performed to date Vill. Reimbursable Expenses a. Reimbursable Expenses include vehicle mileage to and from meetings, plotting, printing, courier and delivery services and are estimated to be $3,000.00. b. Reimbursable Expenses also includes the geotechnical investigation which is currently budgeted at $5,600.00 c. City of La Porte will provide a topographic and site surrey for use by Knudson, in an electronic format that is compatible with AutoCAD 2006, and in levels acceptable to Knudson. If Knudson provides the topographic survey, it will be provided as a Reimbursable Expense with a budget allowance of $8,500.00 d. Reimbursable Expenses are not included in the professional design fees. e. Reimbursable Expenses will be paid for at cost times a 1.10 multiplier. IX. Clarifications and Exclusions a. Meetingstpresentations with City of La Porte, or with others than those described in the above, will be provided as additional services on an hourly rate basis. b. The design and engineering of off -site water, sanitary sewer, storm drainage or electrical systems is not included in this Scope and will be provided upon request as an Additional Service. c. The irrigation system will operate and use water from the City of La Porte municipal water system. d. Application and preparation of documents for variances is not included in this Scope of Services. e. A traffic control plan and implementation will be provided as an Additional Service f. The drainage design for the proposed parking lot is to be determined based on the results of the engineering investigation g. All construction drawings will be prepared in AutoCAD 2006. h. Revisions to the approved 100% Construction Drawings, will be provided as an Additional Service. X. Proposed Schedule a. Project Initiation and Engineering Feasibility 6 Weeks b. Construction Documents 10 Weeks c. Bid and Contracting Phase 8 Weeks d. Construction Phase 16 Weeks TOTAL 40 Weeks Page 4 of 4 November 25, 2008 Knudson # 0080990 081125 ATTACHMENT B-1 HOURLY RATS: BASES OF COMPENSATION LABOR COSTS The Client agrees to pay Knudson for labor costs on an hourly basis in accordance with Attachment C- Fee Schedule. REIMBURSABLE EXPENSES The Client agrees to pay Knudson for all reimbursable expenses incurred by Knudson while providing services in accordance with Attachment A. Reimbursable expenses include, but are not limited to: internal and commercial printing, internal and commercial plotting of drawings and exhibits, internal and commercial copying, courier and delivery services, postage, long distance calls, art supply fee, and vehicle mileage. SUBCONTRACTOR AND CONSULTANT COSTS The Client shall pay Knudson for all subcontractor and consultant costs. These costs shall be reimbursed in accordance with Attachment C. ADDITIONAL SERVICES Knudson shall be reimbursed for additional services in accordance with Attachment C. 6of7 "ATTACHMENT C" Knudson # 0080990 081125 Billing Rates December 2008 Labor by Staff Classification BIIUng Rate President / COO 290 Senior Vice President or Depwbrent Director 220 Vice President Senior P Manager or Pmgram Manager $ 175 Pro ect Manager 150 Project Administrator $ 135 Senior Financial Analyst $ 140 Financial Analyst 115 Development SpedaUst $ 80 Senior Landscape Architect 150 Landscape Architect Ill $ 125 Landscape Architect 11 $ 110 Landscape Architect 1 85 Senior Planner $ 125 Planner Ill 90 Planner II 80 Planner 1 $ 70 Senior GIS Specialst $ 135 GIS S eciaht $ 105 GIS Technician 70 Principal Environmental Specialist(general consultation $ 200 Environmental Specialist 1 110 Environmental Specialist II $ 125 Environmental Tech $ 85 Construdon Manager / Admin 175 Construction Site Representative $ 120 Senior Administrative Support / Accounting 135 Administrative Su / Accounting 11 $ 100 ri Administrative Su / Accounts 1 $ 70 Reimbursable Expense Billing Rate Subcontracted Work selected by KA Cost + 10% Subcontracted Work selected by Client Cost t 15% Computer Usage minimum of 17% of labor hours $12ftur Local Travel IRS Standard Rate Non -Labor Hies Cost + 15% GPS Receiver 125/da minimum All Terrain Vehicle $125/da minimum In house paper copies Black & White $0.50/ age In house paper copies Color 1.50/ a In house ploWng $14.00/SF Art Supplies as a perrentage of labor invoiced 1.8% 7 of 7 46f f _ Em I I REQUEST FOR CITY COUNCIL AGENDA ITEM Agenda Date Requested: December S 2008 Requested By: Michael Dolby, CPA 4 Department: Finance Report: Resolution: Ordinance: XX Exhibits: Ordinance 2008-3101-B Exhibits: Excerpt from FY 2009 Adopted Budget & Amended Budget (Exhibit A & B) Exhibits: Explanations / Backup for Amendment Anpro,Eriation Source of Funds: N/A Account Number: N/A Amount Budgeted: N/A Amount Requested: N/A Budgeted Item: YES NO SUMMARY & RECOMMENDATION The City Council adopted the Fiscal Year 2008-09 Budget on August 25, 2008. The Summary of Funds, which is shown below, represents the amendments which council previously approved to the FY 2008-09 Budget. (*denotes funds with current changes) General Fund Grant Fund Street Maintenance Sales Tax Fund Community Investment Hotel/Motel Occupancy Tax La Porte Development Corporation Tax Increment Reinvestment Zone Utility Sylvan Beach Airport La Porte Area Water Authority Golf Course Motor Pool Insurance Fund Technology Fund General Capital Improvement Utility Capital Improvement Sewer Rehabilitation Capital Improvement 1998 General Obligation Bond Fund 2000 General Obligation Bond Fund 2002 General Obligation Bond Fund 2004 Certificate of Obligation Bond Fund 2005 Certificate of Obligation Bond Fund 2005 General Obligation Bond Fund 2006 Certificate of Obligation Bond Fund 2006 General Obligation Bond Fund 2007 Certificate of Obligation Bond Fund Transportation & Other infrastructure Fund General Debt Service Utility Debt Service La Porte Area Water Authority Debt Service Total of All Funds Action Required by Council: Previously Proposed Original Budget Amended Budget Amended Budget $ 36,382,175 $ 36,382,175 $ 36,382, I75 1,923,528 2,065,528 2,201,028 700,000 700,000 700,000 386,575 386,575 386,575 463,749 463,749 463,749 4,339,685 4,339,685 4,339,685 1,435,775 1,435,775 1,435,775 8,689,854 8,689,854 8,689,854 217,690 217,690 217,690 23,483 23,483 23,483 1,005,288 1,005,288 1,005,288 1,324,826 1,324,826 1,333,901 2,640,159 2,640,159 2,640,159 4,575,547 4,575,547 4,584,621 1,255,818 1,306,198 1,306,198 11,177,355 11,177,355 11,177,355 0 0 0 350,000 350,000 350,000 590,195 590,195 590,195 149,109 149,109 149,109 1,990 1,990 1,990 861,883 861,883 861,883 341,678 341,678 341,678 73,824 73,824 73,824 2,212,267 2,212,267 2,212,267 18,021 18,021 18,021 1,640,317 1,640,317 1,640,317 0 0 0 3,345,768 3,345,768 3,345,768 463,850 463,850 463,850 750,069 750,069 750,069 $ 87,340,478 $ 87,532,858 $ 87,686,508 Adopt Ordinance Amending Fiscal Year 2008-09 Budget in the Grant Fund for $20,500 received from the sale of guns that were in the property room, $65,000 for mobile generator, $40,000 for breathing air compressor, and $10,000 for surveillance equipment also amend $9,075 dollars for transfer from Insurance Fund to Golf Course for theft of property, City Ron Bottoms, Date ORDINANCE NO. 2008-3101-B AN ORDINANCE APPROVING AN AMENDMENT TO THE BUDGET FOR THE.CITY'OFIA_P.QRJE- TEXAS, FOR THE PERIOD OF OCTOBER 1, 2008 THROUGH SEPTEMBER 30, 2009; FINDING THAT ALL THINGS REQUISITE AND NECESSARY HAVE BEEN DONE IN PREPARATION AND PRESENTMENT OF SAID BUDGET; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; AND PROVIDING AN EFFECTIVE DATE HEREOF. WHEREAS, the Charter of the City of La Porte, Texas, and the Statutes of the State of Texas, require that an annual budget be prepared and presented to the City Council of the City of La Porte, Texas, prior to the beginning of the fiscal year of said City, and that a public hearing be held prior to the adoption of said Budget; and WHEREAS, the Budget for the fiscal year October 1, 2008, through September 30, 2009, has heretofore been presented to the City Council and due deliberation had thereon, was filed in the office of the City Secretary on July 25, 2008, and a public hearing scheduled for August 25, 2008 was duty advertised and held. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE: SECTION 1: That the Budget for the City of La Porte, Texas, now before the said City Council for consideration, a complete copy of which is on file with the City Secretary and a summary of which is attached hereto by reference as Exhibit "A", is hereby amended as reflected on the amended budget summary document, attached hereto by reference as Exhibit "B", as the Budgetfor the said City of La Porte, Texas, for the period of October 1, 2008, through September 30, 2009. SECTION 2: Be it FURTHER ORDAINED, that the said City Council finds that all things requisite and necessary to the adoption of said Budget have been performed as required by charter or statute. SECTION 3: The City Council officially finds, determines, recites and declares that sufficient written notice of the date, hour, place and subject of this meeting of the City Council was posted at a place convenient to the public at the City Hall of the City for the time required by law preceding this meeting, as required by the Open Meetings Law, Chapter 551, Texas Goverment Code; and that this meeting has been open to the public as required by law at all times during which this Ordinance and the subject matter thereof has been discussed, considered and formally acted upon. The City Council further ratifies, approves and confirms such written notice and the contents and posting thereof. SECTION 4: This Ordinance shall be in effect from and after its passage and approval. PASSED AND APPROVED this the 9" dayof O� ( • , 2008. OF LA PORA S Alton Porter, Mayor ATTEST: Lllbljdxr� W, - Ma ha illett, CitySecretary APPROV D: rk Askins, Assistant City Attorney EXHIBIT A (ORIGINAL BUDGET) City of La Porte Consolidated Summary of All Funds Governmental Fund Types: General Fund Grant Fund Street Maintenance Sales Tax Community Investment Hotel/Motel Occupancy Tax Section 4B Sales Tax Tax Increment Reinvestment Total Governmental Types Enterprise: Utility Sylvan Beach Airport La Porte Area Water Authority Golf Course Total Enterprise Internal Service Motor Pool Insurance Fund Technology Fund Total Internal Service Capital Improvement: General Utility Sewer Rehabilitation 1998 GO Bond Fund 2000 GO Bond Fund 2002 GO Bond Fund 2004 C/O Bond Fund 2005 C/O Bond Fund 2005 GO Bond Fund 2006 C/O Bond Fund 2006 GO Bond Fund 2007 C/O Bond Fund Other Infrastructure Total Capital Improvement FY 08-09 FY 08-09 Revenues Expenses 33,724,383 36,382,175 1,923,528 1,923,528 786,440 700,000 264,701 386,575 583,575 463,749 1,647,506 4,339,685 1,519,774 1,435,775 40,449,907 45,631,487 8,369,944 8,689,854 207,601 217,690 52,995 23,483 1,226,202 1,005,288 1,202,679 1,324,826 11,059,421 11,261,141 2,107,688 2,640,159 3,945,027 4,575,547 948,623 1,255,818 7,001,338 8,471,524 10,684,213 11,177,355 192,000 - 304,927 350,000 7,000 590,195 - 149,109 - 1,990 - 861,883 1,400 341,678 - 73,824 5,000 2,212,267 2,500 18,021 10,000 1,640,317 17,282 - 11,224,322 17,416,639 Debt Service: General 3,276,016 3,345,768 Utility 104,705 463,850 La Porte Area Water Authority 750,069 750,069 Total Debt Service 4,130,790 4,559,687 Total All Funds 73,865,778 87,340,478 EXHIBIT B (AMENDED BUDGET) City of La Porte Consolidated Summary of All Funds FY 08-09 FY 08-09 Revenues Expenses Governmental Fund Types: General Fund 33,724,383 36,382,175 n�HAM Street Maintenance Sales Tax 786,440 700,000 Community Investment 264,701 386,575 Hotel/Motel Occupancy Tax 583,575 4632749 Section 4B Sales Tax 1,647,506 4,339,685 Tax Increment Reinvestment 1,519,774 1,435,775 Total Governmental Types 40,727,407 45,908,987 Enterprise: Utility 8,369,944 8,689,854 Sylvan Beach 207,601 217,690 Airport 52,995 23,483 La Porte Area Water Authority 1,226,202 1,005,288 Total Enterprise 11,068,446 11,270,216 Internal Service Motor Pool 2,107,688 2,640,159 Technology Fund 948,623 1,306,198 Total Internal Service 7,001,338 8,530,979 Capital Improvement: General 10,684,213 11,177,355 Utility 192,000 - Sewer Rehabilitation 304,927 350,000 1998 GO Bond Fund 7,000 590,195 2000 GO Bond Fund - 149,109 2002 GO Bond Fund - 1,990 2004 C/O Bond Fund - 861,883 2005 C/O Bond Fund 1,400 341,678 2005 GO Bond Fund - 73,824 2006 C/O Bond Fund 5,000 2,212,267 2006 GO Bond Fund 2,500 18,021 2007 CIO Bond Fund 10,000 1,640,317 Other Infrastructure 17,282 - Total Capital Improvement 11,224,322 17,416,639 Debt Service: General 3,276,016 3,345,768 Utility 104,705 463,850 La Porte Area Water Authority 750,069 750,069 Total Debt Service 4,130,790 4,559,687 Total All Funds 74,152,303 87,686,508 November 15, 2008 Break An Maintenance Barn On Saturday night, November 15, 2008 the maintenance facility was burglarized. Items taken were; Estimated Value Total Four (4) Echo weedeaters $300 ea. $1200 Five (5) Stihl 18 in. chainsaws $370 ea. $1850 One (1) Stihl 25 in. chainsaw $480 $480 Two (2) Stihl polesaws $750 $1500 One (1) Stihl backpack blower $380 $380 Four 2 in. Honda waterpumps $385 ea. $1540 Three (3) 3 in. Honda waterpumps $475 ea. $1425 One (1) set of Snap-On standard wrenches 1/4 in. to 1 in. $350 $350 One (1) set of Snap-On metric wrenches 8 mm to 19 mm $350 350 $9075 Police case number 08-34686 Page 1 of 1 Wolny, Shelley From: Bedford, Michelle Sent: Monday, October 20, 2008 5:24 PM To: Wolny, Shelley Cc: Deardorff, Steve Subject: FW: Donation Shelley, Per our conversation we are receiving funds for the sale of guns that are/were in our property room. This was done by formal bid process. Once we have the check, we will need to deposit it and then be able to utilize it for future purpose. If we handle it as we did with a donation from the past (see below) then I would like to see a project # attached so we can easily show our expenditures. Please advise as to how we should handle this and as always — THANKS! � air 10/28/2008 Meeting Handout 2004 r has L in es Yers Include Familiar Name BY SIMON ROMERO HOUSTON, May 21-- Oscar S. W - 'ali.: the Texas oilman known for his altngs with Muammar el-Qaddaft ewe ' Saddam Hussein, is back in the gy business. Mr. Wyatt and a _ 9i 6111? of investors agreed to buy _Zllron's natural gas pipelines in North Americ car �: W --• ` uas agreed to sell to a-.•y„ is Pert of a. 5,CG Yatt, a Texas oilman known for his i.,F grO - P that includes (' r. Enron a actin a for $2.2 billion, rket for quality, high I. g chief exec-1maPerto dealing,. Q -Friday. Ve said gY assets than "?iVir. W Years ago.,, we had seem two s9u'Vived the proxy dispute. Wyatt, 79, is Part •of a The deal would .,called NuCoastal _ grou Cam aBreegain buy CrossCou Cttigtroup, ArcLlght Ca htch includes t is Partners control Mr. wYai[ and a8alnat El P � Mr. wya Pal Pa try Energy, �otsCotut. aso. A Ci'ossCo and Kelso &Company — that is pay 1,100 a �' an Enron opera °�►?� balf of ttntty uq ing $1.77 billion Wft n and as Pay P1Pe11nesPloyees and 9,90 miles S,�OO�tttile pie s �rPoratloq m11Hon of debt in the ing $430 zone Florida,cluding systems m Ate xexas to ache with n I Saco Fbrid ;:;rich is part of Enron suction, ma and We New Mexico, Oklaho- Paso unit a' with an E emerge from bankruptcyflan . to first si Texas. It is Mr. W A spoke onivollipg the other half. t c Enron, which has een rotection. gnsin t foray into the tt s atl for Mr, Wyatt de •Iikruptcy court since mired in Ydihe Co lace selling iris oi! �m Crosses Coasment on his, plans 'to �x9Q.t, said the deal was December Coastal Corporati p Mr Wye fts chief creditors but w approved b than $20 billion to the El pas O� ' `• �� wl1O was 0 •,igg:�the a as still await ration In 20p1. mo- meaner than a junky nce calla, PProval of the bankru Since then. Mr. COS a Process that allows other rl tY by teaming witatt gained noto_ p4tentlal buyers to submit w an bills perioi- Siephen F. Cooper,.acting �c4n utive of chief ex Enron, said the transac- "provides the best valu editors "e for our crand reflects . a stronger Paso shareholder o er lar$e I proxy , Selim Zilk_ ha, ,In I p b y battle last Year o oust shares ian card after the company s ill-fated a Dished in the wake of an area ffort at'tnimicking Enron in the gy.tradin Paso's board and ge business. El xecutive suite tide by Texas Mon and QD6" In ar azine and a Partner started tti�ardlN Able Oil Company in 1951 using proceeds carom1949 an $8OO loan on Mr ally a lli.Ford He eventu Provided cPerations, whict South Texas cities with uat. Ural gas. into a conglomerate witddk s extensive dealings in the a vi East and elsewhere. .A' .., 1,1 Oilman In Deal Wlth Enron Texan S. WYal left, the his deaas lings known for with Muam- darn el Qaddafi and Sad_ the energy Hussein, is back in Wyatt ana group up of n.r. vestors agreed to buy Enron Is natural-gas i lines in North q pip, is part of a group for $2.2 billion. MreTtca includes Citigroup, ACalled NuCoastal _ Wyatt ch M d Kelso &Company. The t aPwo' Partners WCO yatt and his de ernploY suntrY nug ,9 oEnron operation with uld e ners control over Cross - miles of pipelines. 1,100 4.1 Two Plead In Trust CaQ,1Q_-__ NEW ORLEANS, March 23 (AP) ...... Executives of two major offshore oil construction companies entered no con- test pleas to antitrust charges today nd agreed to cooperate in the continu- g Federal investigation of bid rigging and price fixing. Sentencing was delayed until April 25 for Edward,. Tallichet senior vice president of Brown old' wn &Root Inc. of Houston, and Ho4c@._Wf.4re Bal ley, 56, executive vice president of J. Ray McDermott & Company of New Orleans. Mr. Tallichet pleaded no contest to one count of conspiracy to restrain trade in violation of the Sherman Anti. trust Act and one count of mail fraud, Mr. Bailey entered pleas on the anti- trust count plus two counts of mail fraud and one of wire fraud. A lawyer for the antitrust division. of t - ed States District Judge Lansing Mitchell that a plea-bargaining arrangement had been reached in which the men ac- knowledged their participation in the scheme and agreed to cooperate in fur- ther investigations. a �0 F--4 w Q wx H C16 H O ` 4 7 cu ILI col m`g LL.mF w g• Zs $ h w pill ig. • fi.. s i'.40T lye, r- S e� s e • "S i Marc Linder - The University of Iowa College of Law Page 1 of Dean's Message Law Faculty Academic Programs Journals & Organizations Research Centers Career Services Law Library Continuing Legal Education Campus & Community News & Events Support the College Marc Linder Professor Of Law marc-linder@uiowa.edu 319-335-6830 458 Boyd Law Building BA, University of Chicago, 1966 MA, Princeton University, 1971 PhD, Princeton University, 1973 JD, Harvard Law School, 1983 Bibliography (34KB PDF*) C.V. (32KB PDF*) Immediately prior to joining the College of Law in 1992, where he specializes in Labor Law, Professor Linder represented migrant farm workers at Texas Rural Legal Aid for seven years. Before then, he pursued graduate studies at the universities at G6ttingen and West Berlin and taught at Roskilde University Center in Denmark, the National Autonomous University of Mexico in Mexico City, and the UI College of Law. Writing extensively on labor in various countries and periods, his recent books include European Labor Aristocracies (Campus Verlag, 1985); The Supreme Court in Nazi Germany: A Jurisprudential Analysis (Max Planck Institute for European Legal History, 1987); and Migrant Workers and Minimum Wages: Regulating the Exploitation of Agricultural Labor in the United States (Westview Press, 1992). *This download is a PDF file. If you don't already have the current Adobe Reader (the application necessary to read PDF files), you can download it free by clicking the button below: F41'�,, �► mayPxadcrl 0 The Usiversity A ima 2DOS. All rights reserved • Nandumsiminatian Statement •v.Iaw.uiowa.edu/faculty/marc-linder.php 2/19/2008 Linda McGuire - The University of Iowa College of Law Page 1 of Dean's Message Law Faculty Academic Programs Journals & organizations Research Centers Career Services Law Library Continuing Legal Education Campus & Community News & Events Support the College Linda A. McGuire Associate Dean for Public Service Instructor at Law linda-mcguire@uiowa.edu 319-335-9094 BS, State University of New York, College at Oneonta, 1970 MA, Bowling Green State University, Bowling Green, Ohio, 1971 JD, University of Iowa College of Law, 1982, Order of the Coif C.V. (32KB PDF*) Immediately after graduation from law school, Dean McGuire was appointed as assistant county attorney in Johnson County, where she concentrated in violent crime prosecution, particularly sexual and domestic assault and child abuse. She served in that capacity from 1982 - 1990, and as First Assistant County Attorney from 1986 - 1990. From 1989 until 1996, McGuire was a visiting and adjunct professor at the University of Iowa Law College, teaching constitutional law, criminal law, family law, domestic abuse law, and trial advocacy. She has supervised the Prosecutor Intern Program at the law school since 1983. In 1996, McGuire was appointed Dean of Students at the law college. In that capacity, she oversaw all aspects of student affairs, including administering academic regulations and academic advising, supervising exam administration, arranging class and exam accommodations for students with disabilities, counseling students about academic, professional and personal matters, administering the academic dishonesty policy, staffing student affairs' committees, and administering the orientation and faculty advising http://www.law.uiowa.edu/faculty/linda-a-mcguire.php 2/19/2008 Linda McGuire - The University of Iowa College of Law Page 2 of programs. In 2007, she was appointed Associate Dean for Public Service. In that capacity, she oversees the important tasks of enhancing our outreach to the state and developing public service and service learning opportunities for our students. McGuire is a consultant and trainer in domestic abuse law, having worked with judges, lawyers, police, probation officers and lay victim advocates. She has authored or edited a number of publications on the topic, including "Prosecution of Domestic Abuse in Iowa: A Prosecution Manual," and the "Iowa Domestic Abuse Bench Book," as well as training materials for judges, clerks of court, prosecutors, victim advocates, and attorneys on domestic abuse law and practice. From 1992 - 1994, McGuire directed the Pro Se Domestic Abuse Assistance Project, designed to facilitate Iowa's transition to vastly greater numbers of pro se filings for domestic abuse protection orders. She is currently legal counsel for the Iowa Coalition against Domestic Violence and an advisor to the national Battered Women's Justice Project. *This download is a PDF file. If you don't already have the current Adobe Reader (the application necessary to read PDF files), you can download it free by clicking the button below: ► IGer Adobe• ,►e__� = heUni.•ery;tyallchva2005.All rictitsresrr:=d Nnnditaiminntiain atm-eff. http://www.law.uiowa.edu/faculty/linda-a-mcguire.php 2/19/2008 Linda T,icGuire - The University of Iowa College of Law Page 1 of Dean's Message Law Faculty Academic Programs Journals & organizations Research Centers Career Services Law Library Continuing Legal Education Campus & Community [News & Events Support the College Linda A. McGuire Associate Dean for Public Service Instructor at Law linda-mcguire@)uiowa.edu 319-335-9094 BS, State University of New York, College at Oneonta, 1970 MA, Bowling Green State University, Bowling Green, Ohio, 1971 JD, University of Iowa College of Law, 1982, Order of the Coif C.V. (32KB PDF*) Immediately after graduation from law school, Dean McGuire was appointed as assistant county attorney in Johnson County, where she concentrated in violent crime prosecution, particularly sexual and domestic assault and child abuse. She served in that capacity from 1982 - 1990, and as First Assistant County Attorney from 1986 - 1990. From 1989 until 1996, McGuire was a visiting and adjunct professor at the University of Iowa Law College, teaching constitutional law, criminal law, family law, domestic abuse law, and trial advocacy. She has supervised the Prosecutor Intern Program at the law school since 1983. In 1996, McGuire was appointed Dean of Students at the law college. In that capacity, she oversaw all aspects of student affairs, including administering academic regulations and academic advising, supervising exam administration, arranging class and exam accommodations for students with disabilities, counseling students about academic, professional and personal matters, administering the academic dishonesty policy, staffing student affairs' committees, and administering the orientation and faculty advising http://www.law.uiowa.edu/faculty/linda-a-mcguire.php 2/19/200b Linda McGuire - The University of Iowa College of Law programs. In 2007, she was appointed Associate Dean for Public Service. In that capacity, she oversees the important tasks of enhancing our outreach to the state and developing public service and service learning opportunities for our students. McGuire is a consultant and trainer in domestic abuse law, having worked with judges, lawyers, police, probation officers and lay victim advocates. She has authored or edited a number of publications on the topic, including "Prosecution of Domestic Abuse in Iowa: A Prosecution Manual," and the "Iowa Domestic Abuse Bench Book," as well as training materials for judges, clerks of court, prosecutors, victim advocates, and attorneys on domestic abuse law and practice. From 1992 - 1994, McGuire directed the Pro Se Domestic Abuse Assistance Project, designed to facilitate Iowa's transition to vastly greater numbers of pro se filings for domestic abuse protection orders. She is currently legal counsel for the Iowa Coalition against Domestic Violence and an advisor to the national Battered Women's Justice Project. *This download is a PDF file. If you don't already have the current Adobe Reader (the application necessary to read PDF files), you can download it free by clicking the button below: /41Get Adobe' mom_ •.... The Uniremr, of lLvNa 2035. All rights reserved State rd Page 2 of 2 http-//www.law.uiowa.edu/faculty/linda-a-mcguire.php 2/19/200i REQUEST FOR CITY COUNCIL AGENDA ITEM Agenda Date Requested December 8, 2008 Requested By Mayor Porter Department: Ala3zor and Q4, Council Report: Resolution: Ordinance: X Exhibits: Exhibits: Ordinance 2004-2782-W Exhibits: Appropriation Source of Funds: Account Number: Amount Budgeted: Amount Requested: Budgeted Item: YES NO SUMMARY & RECOMMENDATION Discuss and consider appointment of Ken Schlather to position 5 on the La Porte Area Water Authority. ORDINANCE NO. 2004-2782-X AN ORDINANCE APPOINTING MEMBERS TO VARIOUS BOARDS, COMMISSIONS, AND COMMITTEES, OF THE CITY OF LA PORTE; PROVIDING A SEVERABILITY CLAUSE; CONTAINING A REPEALING CLAUSE; FINDING COMPLIANCE WITH THE OPEN MEETINGS LAW; AND PROVIDING AN EFFECTIVE DATE HEREOF. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LA PORTE: • Indicates reappointment Section 1. The City Council of the City of La Porte hereby makes the following appointments to the Airport Advisory Board for the City of La Porte Municipal Airport, for terms expiring on August 31st of the year indicated, or until their successors shall have been duly appointed and qualified: Position 1. - Debra Rihn 2010 Position 2. - Nick Hooke 2010 Position 3. - *Hector Villarreal 2009 Position 4. - *Tucker Grant 2009 Position 5. - Steve Gillett 2010 Position 6. - Eliminated by City Council on 7/13/98 by Ord. 98-2265 Section 2. The City Council of the City of La Porte hereby makes the following appointments to the Board of Directors of the City of La Porte Reinvestment Zone Number One, for terms expiring on August 31st of the year indicated, or until their successors shall have been duly appointed and qualified: Position 1 - Peggy Antone 2009 Position 2 - *Dave Turnquist 2010 Position 3 - Alton Porter 2009 Position 4 - *Horace Leopard 2010 Position 5 - Doug Martin 2009 Position 6 - *J. J. Meza 2010 Position 8 - *Chester Pool 2010 The City Council of the City of La Porte hereby ratifies the following appointments by La Porte Independent School District and Harris County: Position 7 - (LPISD) 2009 Position 9 - Lindsay Pfeiffer (Harris Co.) 2009 Section 3. The City Council of the City of La Porte hereby makes the following appointments to the Chapter 172 Employee Retiree Insurance and Benefits Committee, for terms expiring on August 31st of the year indicated, or until their successors shall have been duly appointed and qualified: Citizen Position 1 - George Van Dyke No Term Citizen Position 2 - Steve Valerius No Term Retiree Participant - Sammy Jacobs No Term Employee Participant- Karen Beerman No Term Finance Staff - Michael Dolby No Term H.R. Staff - Heather Weger No Term Legal Staff - Clark T. Askins No Term Alternate Pos. 1 - Matt Daeumer No Term Alternate Pos. 2 - Julie Graham No Term Alternate position 1 may participate in all meetings of the committee but is entitled to vote only in the absence of a regular member; Alternate position 2 may participate in all meetings of the committee but is entitled to vote only in the absence of a regular member, where Alternate Pos. 1 member is not present, or where more than one regular members are absent. oil Section 4. The City Council of the City of La Porte hereby makes the following appointments to the Fiscal Affairs Committee, without term, or until their successors shall have been duly appointed and qualified: Date Appointed Chairman - Chuck Engelken 1998 Committee Member - Louis Rigby 2008 Committee Member - Howard Ebow 1998 Alternate Member 1 - Georgia Malone 2008 Alternate Member 2 - Tommy Moser 2004 Section 5. The City Council of the City of La Porte hereby makes the following appointments to the Fire Code Review Board of the City of La Porte, for terms expiring on August 31st of the year indicated, or until their successors shall have been duly appointed and qualified: District 1 - Jack Oliphant 2011 District 2 - *Jeff Brown 2009 District 3 - *Woodrow Sebesta 2009 District 4 - *Floyd Craft 2009 District 5 - Jim Bridge 2009 District 6 - Lester Clark 2011 At Large -A - *Bryan Moore 2009 At Large-B - Paul Vige 2011 Mayor - *Lynn Green 2009 Section 6. The City Council of the City of La Porte hereby makes the following appointments to the La Porte Area Water Authority, for terms expiring on August 31st of the year 3 indicated, or until their successors shall have been duly appointed and qualified: Position 1 - Robert Roy 2009 Position 2 - Dennis H. Steger 2009 Position 3 - Steve Valarius 2009 Position 4 - David Janda 2010 Position 5 - Ken Schlather 2010 Section 7. The City Council of the City of La Porte hereby appoints the following named persons, all of whom are residents of the City of La Porte, and no more than four of whom are elected city officials or city employees, to serve as directors of the City of La Porte Development Corporation without compensation, but with reimbursement for actual expenses, for terms expiring on August 31st of the year indicated, or until their successors shall have been duly appointed and qualified: Chuck Engelken 2009 *Mike Clausen 2010 Tommy Moser 2009 *Bill Love 2010 Ed Matuszak 2009 *Pat Muston 2010 Barry Beasley 2009 Section 8. The City Council of the City of La Porte hereby makes the following appointments to the La Porte Health Authority, for terms expiring on August 31st of the year indicated, or until their successors shall have been duly appointed and qualified: 51 Health Authority - Abdul R. Moosa, M.D. 2011 Alternate - Robert D. Johnston, M.D. 2011 Medical Advisor/EMS - Oscar Boultinghouse Contract Section 9. The City Council of the City of La Porte hereby makes the following appointments to the La Porte Redevelopment Authority, for terms expiring on August 31st of the year indicated, or until their successors shall have been duly appointed and qualified: Position 1 - Peggy Antone 2009 Position 2 - *Dave Turnquist 2010 Position 3 - Alton Porter 2009 Position 4 - *Horace Leopard 2010 Position 5 - Douglas Martin 2009 Position 6 - *J. J. Meza 2010 Position 7 - L.P.I.S.D. Rep 2009 Position 8 - *Chester Pool 2010 Position 9 - Lindsay R. Pfeiffer, Chairman 2009 Section 10. The City Council of the City of La Porte hereby makes the following appointments to the Main Street Advisory Board, a new Board required by the Texas Historical Commission, for terms expiring on August 31st of the year indicated, or until their successors shall have been duly appointed and qualified: Position 1- Edward Matuszak, Chairman 2011 Position 2- Margaret Anderson 2011 Position 3- Bill Manning, Jr. 2011 Position 4- Shar Lynch 2009 Position 5- *Jerry Carpenter 2009 5 Position 6- Mark Follis 2009 Position 7- Paul Larson 2010 Position 8- Ronda Lunsford 2010 Position 9- Debra Gallington 2010 Position 10- Position 10 Eliminated by Ordinance 2004-2782- L on August 28th, 2006 by City Council action. Position 11- Position 11 Eliminated by Ordinance 2004-2782- L on August 28th, 2006 by City Council action. There are also three (3) Ex Officio members of this Board: 1 - the City of La Porte's Main Street Coordinator 2 - the City Manager of the City of La Porte, or his designee 3 - the Manager of the La Porte-Bayshore Chamber of Commerce Section 11. The City Council of the City of La Porte hereby makes the following appointments to the City of La Porte Planning and Zoning Commission, for terms expiring on August 31st of the year indicated, or until their successors shall have been duly appointed and qualified: Chairman - Hall Lawler 2009 District 1 - Doretta Finch 2011 District 2 - *Nick Barrera 2009 District 3 - *Kirby Linscombe, Jr. 2009 District 4 - Dottie Kaminiski 2010 District 5 - Paul Berner 2010 District 6 - Les Bird 2011 Alternate 1 - David Janda 2010 1.1 Alternate 2 - Lou Ann Martin 2011 Section 12. The City Council of the City of La Porte hereby makes the following appointments to the Southeast Texas Housing Finance Corporation Board of Directors, for terms expiring on August 31st of the year indicated, or until their successors shall have been duly appointed and qualified: Director - Lou Ann Martin 2009 Section 13. The City Council of the City of La Porte hereby makes the following appointments to the Zoning Board of Adjustment, for terms expiring on August 31st of the year indicated, or until their successors shall have been duly appointed and qualified: Position 1 - Chester Pool 2009 Position 2 - Bob Capen 2009 Position 3 - Rod Rothermel 2009 Position 4 - Charles Schoppe 2009 Position 5 - George W. Maltsberger 2009 Alternate 1 - *Lawrence McNeal 2010 Alternate 2 - *Gilbert Montemayor 2010 The City Council of the City of La Porte hereby designates George W. Maltsberger, of Position 5, to serve as Chairman of the Zoning Board of Adjustment until the expiration of the member's term of appointment as designated in this section, or until their successor shall have been duly appointed and qualified. Section 14. The City Council of the City of La Porte hereby appoints the following named persons, all of whom are resident electors of the City of La Porte or non-resident individuals 7 owning or operating a business within the City of La Porte, duly verified by proof of an applicable tax statement or utility account for such business, and each of whom the City Council deems competent to serve on such Board by virtue of their experience and training in matters pertaining to building construction, and none of whom are employed by the City of La Porte, to serve as members of the Building Codes Appeals Board for terms expiring on August 31st of the year indicated, or until their successors shall have been duly appointed and qualified: Position 1 - Tom Campbell 2010 Position 2 - Terry Bunch 2010 Position 3 - Paul Larson 2009 Position 4 - Ron Holt 2009 Position 5 - Ken Schlather 2011 Position 6 - Michael Reedy 2011 Position 7 - Mark Follis 2011 Section 15. The City Council of the City of La Porte hereby makes the following appointment to the Fire Fighters Pension Board of Trustees, to serve without term or until his successor shall have been duly appointed and qualified: City Council Representative - *John Joerns No Term Section 16. The City Council of the City of La Porte hereby makes the following appointments to the Animal Shelter Advisory Committee, without term, or until their successors shall have been duly appointed and qualified: Veterinarian - Donna Medford, DVM No Term Rabies Control Authority - Ken Adcox No Term t Animal Control Officer - Clarence Anderson No Term Animal Welfare Rep. - Dana Dicker No Term City Council At -large Pos. A - Georgia Malone No Term Section 17. If any section, sentence, phrase, clause or any part of any section, sentence, phrase, or clause, of this ordinance shall, for any reasons, be held invalid, such invalidity shall not affect the remaining portions of this ordinance, and it is hereby declared to be the intention of this City Council to have passed each section, sentence, phrase or clause, or part thereof, irrespective of the fact that any other section, sentence, phrase or clause, or part thereof, may be declared invalid. Section 18. All ordinances or parts of ordinances in conflict herewith are repealed to the extent of such conflict only. Section 19. The City Council officially finds, determines, recites, and declares that a sufficient written notice of the date, hour, place and subject of this meeting of the City Council was posted at a place convenient to the public at the City Hall of the City for the time required by law preceding this meeting, as required by the Open Meetings Law, Chapter 551, Texas Government Code; and that this meeting has been open to the public as required by law at all times during which this ordinance and the subject matter thereof has been discussed, considered and formally acted upon. The City Council further ratifies, approves and confirms such written notice and the contents and posting thereof. 9 Section 20. This Ordinance shall be effective from and after . its passage and approval, and it is so ordered. PASSED AND APPROVED, this 5�14 day of jaQe. , 2008. ATTEST: Ma tha A. Gillett City Secretary APPRO ED Clark Askins Assistant City Attorney C OF LA PO B y : .. Alton E. Porter Mayor 10 REQUEST FOR CITY COUNCIL AGENDA ITEM Agenda Date Requested: December 8, 2008 Requested By: Stephen L. Barr Department: Parks & Recreation Report: Resolution: Ordinance: Attachments: Agreement Attachments: Attachments: Appropriation Source of Funds: Fund 15, Fund 48 Acc't Number: 048-9892-975-1100 015-9892-975-1100 Amount Budgeted: $4,100,000 Requested: $2,700,000 Budgeted Item: YES X NO SUMMARY & RECOMMENDATION As was discussed and authorized by Ordinance in the August 11 City Council meeting, the City of La Porte issued a Request for Qualifications for a Construction Manager -at -Risk for this project. The RFQ was sent to five pre -qualified contractors as well as additional contractor, and advertised through the Bayshore Sun and other contact points. The City received one response from Patak Construction, Inc. (PCI). Other potential contractors were not inclined to participate (see attached Purchasing document). PCI has been pre - qualified according to City of La Porte Ordinances as a precursor to their selection at the thirty days working capital level. Approximately 50% of the proposed work under the contract will be sub- contracted by PCI and 100% of the work will be protected by both Performance and Payment bonds. Staff and the City's architect Bob Randall have met with PCI and developed a contract that will provide construction services through the Construction Manager -at -Risk for the project as was designated by Council. Mr. Randall will continue to work with the Construction Manager at Risk, PCI, to incorporate value engineering into the project to provide the product at a not to exceed cost. The PCI pre -construction services portion of the contract is $6,500 and a percentage of 5.5% of the overall cost of this portion of the contract (excluding the Musco portion), of $2,700,000, for bidding costs, performance & payment bonds and other variable costs of construction under the Construction Manager at Risk form of procurement . In addition, PCI is requesting $230,000 in fixed costs to provide base cost of services, including on -site facilities, staffing, storage, and associated expenses for the project. The overall budgeted amount for this portion of the project is $2,700,000 which will be administered by PCI to accomplish the proposed scope of work to be provided by the City's architect for the project, Randall -Porterfield Architects, Inc. PCI's proposed total cost of services is approximately $385,000, or 14.2% of the overall $2,700,000 budgeted for this portion of this project, which is in line with its size. The funding for this project has been established based on the FY08-09 budget process and funding is available in Fund 15 for this project. Staff recommends approving and authorizing an agreement between the City of La Porte and Patak Construction, Inc. (PCI) to provide Construction Manager at Risk services for the West Side Sports Complex and Park according to the agreement provided. Consider approving and authorizing an agreement between the City of La Porte and Patak Con truction, Inc. (PCI) to provide Construction Manager at Risk services, and appropriating an amount of $2,7 Aec from Fund 048 and Fund 015 for the West Side Sports Complex and Park, with PCI's portion of the rcostat $6,500 plus 5.5% of the total project cost, according to the agreement provided. A bibved for Cit-4 (Rouncil Agenda t Ron Bottoms, Ci y Manager Da to ,.,AIA Wr Document A121'"Wc - 2003 and AGC Document 565 Standard Form of Agreement Between Owner and Construction Manager where the Construction Manager is Also the Constructor 'AGREEMENT made as of the fourth day of November Eight (In words, indicate day, month and year) BETWEEN the Owner: (Name and address) City of La Porte 1322 South Broadway LaPorte, Texas 77572 and the Construction Manager: (Name and address) PATAK Construction Inc. 1927 Hwy 146 Kemah, TX 77565 The Project is: (Name, address and brief description) City of La Porte - Westside Park Project 3600 Canada Road LaPorte, TX 77571 Northwest corner of Canada and Caniff Streets The Architect is: (Name and address) Randall -Porterfield Architects, Inc. A.I.A. 565 FM 270 North League City, Texas 77573 in the year of Two Thousand and The Owner and Construction Manager agree as set forth below: ADDITIONS AND DELETIONS: The author of this document has added information needed for its completion. The author may also have revised the text of the original AIA standard form. An Additions and Deletions Report that notes added information as well as revisions to the standard form text is available from the author and should be reviewed. A vertical line in the left margin of this document indicates where the author has added necessary information and where the author has added to or deleted from the original AIA text. This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. The 1997 Edition of AIA Document A201, General Conditions of the Contract for Construction, is referred to herein. This Agreement requires modification if other general conditions are utilized. Init.AIA Document A121 TMCMc - 2003 and AGC Document 565. Copyright© 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) TABLE OF CONTENTS ARTICLE 1 GENERAL PROVISIONS § 1.1 Relationship of the Parties § 1.2 General Conditions ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES § 2.1 Preconstruction Phase § 2.2 Guaranteed Maximum Price Proposal and Contract Time § 2.3 Construction Phase § 2.4 Professional Services § 2.5 Hazardous Materials ARTICLE 3 OWNER'S RESPONSIBILITIES § 3.1 Information and Services § 3.2 Owner's Designated Representative § 3.3 Architect § 3.4 Legal Requirements ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES § 4.1 Compensation § 4.2 Payments ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES § 5.1 Compensation § 5.2 Guaranteed Maximum Price § 5.3 Changes in the Work ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE § 6.1 Costs to Be Reimbursed § 6.2 Costs Not to Be Reimbursed § 6.3 Discounts, Rebates and Refunds § 6.4 Accounting Records ARTICLE 7 CONSTRUCTION PHASE § 7.1 Progress Payments § 7.2 Final Payment ARTICLE 8 INSURANCE AND BONDS § 8.1 Insurance Required of the Construction Manager § 8.2 Insurance Required of the Owner § 8.3 Performance Bond and Payment Bond ARTICLE 9 MISCELLANEOUS PROVISIONS § 9.1 Dispute Resolution § 9.2 Other Provisions ARTICLE 10 TERMINATION OR SUSPENSION § 10.1 Termination Prior to Establishing Guaranteed Maximum Price § 10.2 Termination Subsequent to Establishing Guaranteed Maximum Price § 10.3 Suspension ARTICLE 11 OTHER CONDITIONS AND SERVICES Init.AIA Document At 21 TMCMc - 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 2 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) ARTICLE 1 GENERAL PROVISIONS § 1.1 RELATIONSHIP OF PARTIES The Construction Manager accepts the fiduciary relationship of trust and confidence established with the Owner by this Agreement, and covenants with the Owner to furnish the Construction Manager's best skill, efforts, and judgment and to cooperate with the Architect in furthering the interests of the Owner to build the Project defined in the Contract Documents, in accordance with the Owner's requirements and construction cost limitations, as Owner set forth in the Contract Documents. The Construction Manager shall furnish construction services (in accordance with law), administration and management services and shall use the Construction Manager's best efforts to perform the Project in an expeditious and economical manner consistent with the interests of the Owner. The Owner and the Construction Manager shall endeavor to promote harmony and cooperation among the Owner, Architect, Construction Manager, Construction Manager's subcontractors, Program Manager (if applicable), and other persons or entities employed by the Owner for the Project. § 1.2 GENERAL CONDITIONS For the Construction Phase, the General Conditions of the contract shall be the AIA® Document A201TM-1997, General Conditions of the Contract for Construction, as amended for this Project, (the "General Conditions of the Contract") which is incorporated herein by reference. For the Preconstruction Phase, or in the event that the Preconstruction and Construction Phases proceed concurrently, the general Conditions of the Contract shall apply to the Preconstruction Phase only as specifically provided in this agreement. The term "Contractor" as used in the General Conditions of the Contract shall mean the Construction Manager. All Amended, General, or Supplementary Conditions, if any, to the General Conditions Contract are also incorporated herein by reference. Any reference to the General Conditions of the Contract in this Agreement shall be construed as the General Conditions of the Contract as amended for this Project. General Conditions Cost as submitted with reimbursed items as part of "step 2" Proposal. ARTICLE 2 CONSTRUCTION MANAGER'S RESPONSIBILITIES The Construction Manager shall perform the services described in this Agreement. The services to be provided under Sections 2.1 and 2.2 constitute the Preconstruction Phase services. If the Owner and Construction Manager agree, after consultation with the Architect, the Construction Phase may commence before the Preconstruction Phase is completed, in which case both phases will proceed concurrently. § 2.1 PRECONSTRUCTION PHASE § 2.1.1 PRELIMINARY EVALUATION The Construction Manager shall provide a preliminary evaluation of the Owner's program and Project budget requirements, each in terms of the other. § 2.1.2 CONSULTATION The Construction Manager with the Architect shall jointly schedule and attend regular meetings with the Owner. The Construction Manager shall consult with the Owner and Architect regarding site use and improvements and the selection of materials, building systems and equipment. The Construction Manager shall provide recommendations on construction feasibility, actions designed to minimize adverse effects of labor or material shortages; time requirements for procurement, installation and construction completion to satisfy Owner's time requirements; and factors related to construction cost, including estimates of alternative designs or materials, preliminary budgets and possible economies. § 2.1.2.1 During the Pre -Construction Phase, the Construction Manager shall review the Contract Documents to ascertain whether the components of the plumbing, electrical and mechanical systems may be constructed without interference with each other, or with the structural or architectural components of the Project, or with existing systems. In the event that conflicts between the systems are discovered, the Construction Manager shall promptly notify the Owner and Architect in writing. § 2.1.2.2 Notwithstanding any provision of the General Conditions of the Contract to the contrary, the Construction Manager shall not be entitled to additional compensation for any delay or disruption to the Work arising from any conflict between the mechanical, electrical, and plumbing systems with each other, or with the structural or architectural components of the Project, or with existing systems, if such conflicts should have been discovered during the Construction Documents Phase by the Construction Manager through the exercise of reasonable diligence, and the Owner and Architect were not informed of such conflicts as required by subparagraph 2.1.2.1. Init. AIA Document A121 TMCNIc — 2003 and AGC Document 565. Copyright© 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. $ Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12101 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) Provided, however, that this provision shall apply only with respect to conflicts appearing in the Drawings and Specifications provided for the Construction Manager's review prior to proposal of a Guaranteed Maximum Price as defined in Section 5.2.1 of this Agreement. § 2.1.3 PRELIMINARY PROJECT SCHEDULE When Project requirements described in Section 3.1.1 have been sufficiently identified, the Construction Manager shall prepare, and periodically update, a preliminary Project schedule for the Architect's review and the Owner's approval. The Construction Manager shall obtain the Architect's approval of the portion of the preliminary Project schedule relating to the performance of the Architect's services. The Construction Manager shall coordinate and integrate the preliminary Project schedule with the services and activities of the Owner, Architect and Construction Manager, and construction Manager's subcontractors. As design proceeds, the preliminary Project schedule shall be updated to indicate proposed activity sequences and durations, milestone dates for receipt and approval of pertinent information, submittal of a Guaranteed Maximum Price proposal, preparation and processing of shop drawings and samples, delivery of materials or equipment requiring long -lead-time procurement, Owner's occupancy requirements showing portions of the Project having occupancy priority and fixed completion dates, proposed date of Substantial Completion and proposed date of Final Completion acceptable to Owner. If preliminary Project schedule updates indicate that previously approved schedules may not be met, the Construction Manager shall make appropriate recommendations to the Owner and Architect and shall implement necessary corrective action. § 2.1.4 PHASED CONSTRUCTION The Construction Manager shall make recommendations to the Owner and Architect regarding the phased issuance of Drawings and Specifications so as to facilitate the proposal of a Guaranteed Maximum Price when the Drawings and Specifications are ninety-five (95%) complete. The Drawings and Specifications shall be deemed to be ninety percent complete when all elements of the Drawings and Specifications are not less than ninety percent complete, as mutually agreed by the Owner and the Construction Manager. § 2.1.5 PRELIMINARY COST ESTIMATES § 2.1.5.1 When the Owner has sufficiently identified the Project requirements and the Architect has prepared other basic design criteria, the Construction Manager shall prepare, for the review of the Architect and approval of the Owner, a preliminary cost estimate utilizing area, volume or similar conceptual estimating techniques. § 2.1.5.2 When Schematic Design Documents have been prepared by the Architect and approved by the Owner, the Construction Manager shall prepare, for the review of the Architect and approval of the Owner, a more detailed estimate with supporting data. During the preparation of the Design Development Documents, the Construction Manager shall update and refine this estimate at appropriate intervals agreed to by the Owner, Architect and Construction Manager. § 2.1.5.3 When Design Development Documents have been prepared by the Architect and approved by the Owner, the Construction Manager shall prepare a detailed estimate with supporting data for review by the Architect and approval by the Owner. During the preparation of the Construction Documents, the Construction Manager shall update and refine this estimate at appropriate intervals agreed to by the Owner, Architect and Construction Manager § 2.1.5.4 If any estimate submitted to the Owner exceeds previously approved estimates or the Owner's budget, the Construction Manager shall make appropriate recommendations to the Owner and Architect for cost reductions, including but not limited to, substitution of materials or revisions or alterations to the Design Development Documents or the Construction Documents, to bring the Project within the Owner's budget, but shall not delete necessary components of the Project without Owner's consent. In the event that the quality or scope identified in the estimates are unacceptable or exceed the Owner's identified budget, the Construction Manager shall work with the Architect to develop options that are acceptable to Owner and are within the Owner's budget and meet the Owner's requirements for dates for Substantial Completion and Final Completion. § 2.1.6 SUBCONTRACTORS AND SUPPLIERS To the extent not inconsistent with the Construction Manager's requirements, the Construction Manager shall seek to develop subcontractor interest in the Project and shall furnish to the Owner and Architect for their information a list of possible subcontractors, including suppliers who are to furnish materials or equipment fabricated to a special design, from whom proposals will be requested for each principal portion of the Work. The Architect will promptly Init. AIA Document At 21 TmCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 4 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01/2008 under Order No. 1 000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) reply in writing to the Construction Manager if the Architect or Owner knows of any objection to such subcontractor or supplier. The receipt of such list shall not require the Owner or Architect to investigate the qualifications of proposed subcontractors or suppliers, nor shall it waive the right of the Owner or Architect later to object to or reject any proposed subcontractor or supplier. § 2.1.7 LONG -LEAD-TIME ITEMS The Construction Manager shall recommend to the Owner and Architect a schedule for procurement of long -lead- time items which will constitute part of the Work as required to meet the Project schedule. If such long -lead-time items are procured by the Owner, they shall be procured on terms and conditions acceptable to the Construction Manager. Upon the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal, all contracts for such items shall be assigned by the Owner to the Construction Manager, who shall accept responsibility for such items as if procured by the Construction Manager. The Construction Manager shall expedite the delivery of long -lead-time items. § 2.1.8 EXTENT OF RESPONSIBILITY The Construction Manager does not warrant or guarantee estimates and schedules except as may be included as part of the Guaranteed Maximum Price. The recommendations and advice of the Construction Manager concerning design alternatives and potential cost savings shall be subject to the review and approval of the Architect, Owner and the Owner's professional consultants. It is not the Construction Manager's responsibility to ascertain that the Drawings and Specifications are in accordance with applicable laws, statutes, ordinances, building codes, rules and regulations. However, if the Construction Manager recognizes or reasonably should recognize that portions of the Drawings and Specifications are at variance with applicable laws, statutes, ordinances, building codes, rules or regulations, the Construction Manager shall promptly notify the Architect and Owner in writing. § 2.1.9 EQUAL EMPLOYMENT OPPORTUNITY AND AFFIRMATIVE ACTION The Construction Manager shall comply with applicable laws, regulations and special requirements of the Contract Documents regarding equal employment opportunity and affirmative action programs. § 2.2 GUARANTEED MAXIMUM PRICE PROPOSAL AND CONTRACT TIME § 2.2.1 When all design elements of the Drawings and Specifications are at least 95% complete, as determined by the Architect and the Construction Manager, the Construction Manager shall propose a Guaranteed Maximum Price, which shall be the sum of the estimated Cost of the Work, General Conditions of the Contract, and the Construction Manager's Fee for the Work. The Construction Manager may propose separate Guaranteed Maximum Prices for separate works within the Project, as schedules and efficiencies dictate. The Construction Manager will work with the Architect to achieve a Guaranteed Maximum Price that is fully acceptable to Owner and is within the Owner's budget for the Work and for the Project. § 2.2.2 The Guaranteed Maximum Price will contain a separately identified contingency factor (the "Construction Contingency"). The Construction Contingency is not allocated to any particular item of the Cost of the Work and is established for the Construction Manager's use as may be required for costs incurred in the Work from unforeseen causes or details which should have been anticipated by the Construction Manager at the time of the Owner's approval of the Guaranteed Maximum Price. Such unanticipated causes or details include, but are not limited to, refinement of details of design within the scope of standards, quality and quantities which are reasonably inferable from the Guaranteed Maximum Price documents, the correction of minor defects not relating to design, delays in receipt of materials, and additional costs relating to Subcontractor defaults not reimbursed by the Subcontractor's bonding company. The Construction Manager, with Owner's written approval, may utilize the Construction Contingency for any of the above items within the Cost of the Work without the necessity of a Change Order and without constituting a Change in the Scope of the Work, as long as same does not result in an increase in the Guaranteed Maximum Price. All savings will accrue and be available for use, only as detailed above, by the documentation for all uses of the Construction Contingency shall be provided to Owner. Upon final accounting, all remaining monies in the Construction Contingency shall accrue to the Owner. The Guaranteed Maximum Price shall also contain a separately identified contingency factor for Owner's use ("Owner's Contingency"), more fully described in subparagraph 3.1.3 herein. § 2.2.3 The estimated Cost of the Work shall include the Construction Manager's contingency, a sum established by the Construction Manager for the Construction Manager's exclusive use to cover costs arising under Section 2.2.2 and other costs which are properly reimbursable as Cost of the Work but not the basis for a Change Order. Init.AIA Document At 21 TMCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 5 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01/2008 under Order No. 1 000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) § 2.2.4 BASIS OF GUARANTEED MAXIMUM PRICE The Construction Manager shall include with the Guaranteed Maximum Price proposal a written statement of its basis, which shall include: 1 A list of the Drawings and Specifications, including all addenda thereto and the Conditions of the Contract, which were used in preparation of the Guaranteed Maximum Price proposal. .2 A list of allowances and a statement of their basis. .3 A list of the clarifications and assumptions made by the Construction Manager in the preparation of the Guaranteed Maximum Price proposal to supplement the information contained in the Drawings and Specifications. .4 The proposed Guaranteed Maximum Price, including a statement of the estimated cost organized by trade categories, allowances, contingency, and other items and the Fee that comprise the Guaranteed Maximum Price. .5 The Date of Substantial Completion upon which the proposed Guaranteed Maximum Price is based, and a schedule of the Construction Documents issuance dates upon which the date of Substantial Completion is based. .6 The Date of Final Completion upon which the proposed Guaranteed Maximum Price is based, which date must be acceptable to Owner. .7 The Guaranteed Maximum Price proposal may not be based in any part on any subcontract or material supply contract which would require the Owner to compensate the Construction Manager on other than a maximum cost basis. § 2.2.4.1 The Initial Maximum Price is $2.75 Million dollars excluding The Musco Lighting Contract of $975,000 by separate contract. The Initial Budget and desired Maximum Price is $2.75 Million dollars. § 2.2.5 The Construction Manager shall meet with the Owner and Architect to review the Guaranteed Maximum Price proposal and the written statement of its basis. In the event that the Owner or Architect discover any inconsistencies or inaccuracies in the information presented, they shall promptly notify the Construction Manager, who shall make appropriate adjustments to the Guaranteed Maximum Price proposal, its basis, or both. § 2.2.6 Owner shall be allowed not less than thirty days after receipt to review and take action on the Construction Manager's Guaranteed Maximum Price proposal. Unless the Owner accepts the Guaranteed Maximum Price proposal by City Council action on or before the date specified in the proposal for such acceptance and so notifies the Construction Manager, the Guaranteed Maximum Price proposal shall not be effective without written acceptance by the Construction Manager. Acceptance and approval of the Guaranteed Maximum Price by Owner's at a duly -called City Council meeting shall constitute Notice to the Construction Manager of Acceptance of the Guaranteed Maximum Price. § 2.2.7 Prior to the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a Notice to Proceed, the Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work, except as the Owner may specifically authorize in writing. § 2.2.8 Upon acceptance by the Owner of the Guaranteed Maximum Price proposal and all assumptions and clarifications, the Construction Manager shall present Amendment No. 1 for approval by the Owner's City Council. Amendment No. i shall contain the Guaranteed Maximum Price and its basis. The Guaranteed Maximum Price shall be subject to additions and deductions by a change in the Scope of the Work and only when approved by Owner's City Council as provided in the Contract Documents. The Date of Substantial Completion and Final Completion shall be subject to extension only if approved by Owner's City Council as provided in the Contract Documents. § 2.2.9 The Owner shall authorize and cause the Architect to revise the Drawings and Specifications to the extent necessary to reflect the agreed -upon assumptions and clarifications contained in Amendment No. 1. Such revised Drawings and Specifications shall be furnished to the Construction Manager in accordance with schedules agreed to by the Owner, Architect and Construction Manager. The Construction Manager shall promptly notify the Architect and Owner if such revised Drawings and Specifications are inconsistent with the agreed -upon assumptions and clarifications. Init. AIA Document At 21 n"CMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute o1 Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. s Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01/2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) § 2.2.10 The Guaranteed Maximum Price shall not include in the Cost of the Work any taxes from which Owner is exempt. § 2.3 CONSTRUCTION PHASE § 2.3.1 GENERAL § 2.3.1.1 The Construction Phase shall commence on the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price (Paragraphs deleted) (Paragraph deleted) Proposal, full execution of Amendment No. 1, and issuance of a written Notice to Proceed. Substantial Completion therefore is (365) calendar days from notice to proceed scheduled for December 2008. § 2.3.2 ADMINISTRATION § 2.3.2.1 The Construction Manager shall publicly advertise and solicit through competitive purchasing, as required by law, competitive sealed bidding or competitive sealed proposals from subcontractors for the performance of all major ((Exceeding $50,000) elements of the Work. The Owner shall then determine, with the advice of the Construction Manager and subject to the reasonable objection of the Architect, which proposals will be accepted. The Construction Manager may seek to perform portions of the Work required to be publicly advertised. If the Construction Manager submits its own proposal for any portion of the Work, it shall do so in the same manner as required of all subcontractors. Owner shall decide whether or not Construction Manager's proposal for self - performing portions of the Project offers the best value to Owner. In opening proposals, neither Construction Manager nor Owner shall disclose the contents of a proposal. All proposals shall be made public within seven days after the Owner's final selection or after the award of the contract, whichever is later. If Construction Manager's proposal is selected by the Owner, the proposed cost for the self -performed work shall be paid to the Construction Manager, pursuant to progress payments, as if Construction Manager were a subcontractor. Such payments to Construction Manager shall be included in the Cost of the Work, but the Construction Manager shall not receive an additional Construction Manager's fee for self -performed work. § 2.3.2.2 If during the course of recommending proposals, the Construction Manager recommends in writing to Owner a proposal from subcontractor, but the Owner requires another proposal to be accepted, the Owner may compensate the Construction Manager by a change in price, time, and/or Guaranteed Maximum Price for any additional cost and risk that the Construction Manager may incur as a result, if such change exists. Construction Manager shall state the additional cost and/or risk in writing and shall provide written proof of same before Owner compensates Construction Manager. § 2.3.2.2.1 The Construction Manager shall include the following specific notices in the formation to proposers: 1 The successful proposer's responsibility to provide workers' compensation insurance in accordance with Texas Labor Code Chapter 406; .2 The successful proposer's responsibility to pay prevailing wages pursuant to Texas Government Code Chapter 2258; .3 A notice of the sales tax exemption for the Project and the procedure for obtaining any required exemption verification or certificate; .4 The notice regarding trench and shoring safety required by Texas Health and Safety Code Section 756.02. § 2.3.2.2.2 Nothing herein shall preclude the Construction Manager from including other notices required or allowed by law § 2.3.2.3 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated to a special design shall conform to the payment provisions of Article 7 of this Agreement and shall not be awarded on the basis of cost plus a fee without the prior consent of the Owner. Init. AIA Document A121 TM'CMc — 2003 and AGC Document 565. Copyright© 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties % Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) § 2.3.2.4 The Construction Manager shall schedule and conduct weekly or otherwise regularly -scheduled meetings at which the Owner, Architect, Construction Manager and appropriate Subcontractors can discuss the status of the Work The Construction Manager shall prepare and promptly distribute meeting minutes. The Construction Manager shall provide periodic presentations updating the progress, quality and status of the Work to Owner's City Council, at Owner's request, at no additional cost to Owner. § 2.3.2.5 Promptly after the Owner's acceptance of the Guaranteed Maximum Price proposal, the Construction Manager shall prepare a schedule in accordance with Section 3.10 of the General Conditions of the Contract, , including the Owner's occupancy requirements. § 2.3.2.6 The Construction Manager shall provide monthly written reports to the Owner and Architect on the progress of the entire Work. The Construction Manager shall maintain a daily log containing a record of weather, Subcontractors working on the site, number of workers, Work accomplished, problems encountered and other similar relevant data as the Owner may reasonably require. The log shall be available to the Owner and Architect at any time during work hours, and shall be presented for discussion at the meetings referenced in subparagraph 2.3.2.4 above. § 2.3.2.7 The Construction Manager shall develop a system of cost control for the Work, including regular monitoring of actual costs for activities in progress, including Changes to the Work approved by Owner, and estimates for uncompleted tasks and proposed changes. The Construction Manager shall identify variances between actual and estimated costs and report the variances to the Owner and Architect at regular intervals. § 2.3.3 Upon Final Completion of the Work, the Construction Manager shall certify to the Owner that the Project, to the best of his knowledge, has been constructed in general accordance with Architect's Construction Documents. The certificate shall be in a form which is acceptable to the Owner and Construction Manager, signed by an officer of the Construction Manager and property notarized. § 2.3.4 To the extent that any Work in Project requires a trench excavation exceeding five (5) feet in depth, Construction Manager shall fully comply, and shall require any applicable subcontractor to comply, with: 1 the Occupational Safety and Health Administration standards for trench safety in effect for the construction of the work. .2 the shoring requirements, if any, of the Owner; and .3 any geotechnical information obtained by Owner for use by the Construction Manager in the design of the trench safety system. .4 Construction Manager at Risk will contact locator service when excavating. § 2.3.5 Trench excavation safety protection shall be a separate pay item, and shall be based on linear feet of trench excavated. Special shoring requirements shall also be a separate pay item, and shall be based on the square feet of shoring used. Said cost shall be included within the Guaranteed Maximum Price. § 2.4 PROFESSIONAL SERVICES Section 3.12.10 of the General Conditions of the Contract, shall apply to both the Preconstruction and Construction Phases. § 2.5 HAZARDOUS MATERIALS Section 10.3 of the General Conditions of the Contract, shall apply to both the Preconstruction and Construction Phases. ARTICLE 3 OWNER'S RESPONSIBILITIES § 3.1 INFORMATION AND SERVICES § 3.1.1 The Owner shall provide information required of it pursuant to this Agreement in a timely manner regarding the requirements of the Project, including a program which sets forth the Owner's objectives, constraints and criteria, including space requirements and relationships, flexibility and expandability requirements, special Init.AIA Document A121' CMc — 2003 and AGC Document 565. Copyright© 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and international Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No. 1 000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) equipment and systems, and site requirements. The Commencement Date will be fixed in a notice to proceed. Substantial Completion therefore is (365) calendar days from notice to proceed scheduled for December, 2008. § 3.1.2 The Owner shall, at the written request of the Construction Manager prior to commencement of the Construction Phase and thereafter, furnish to the Construction Manager reasonable evidence that financial arrangements have been made to fulfill the Owner's obligations under the Contract. Furnishing of such evidence shall be a condition precedent to commencement or continuation of the Work. After such evidence has been furnished, the Owner shall not materially vary such financial arrangements without prior notice to the Construction Manager. § 3.1.3 The Owner shall establish and update an overall budget for the Project, based on consultation with the Construction Manager and Architect. The Guaranteed Maximum Price shall include an Owner's Contingency, which is defined as an allowance established by the Owner for the Owner's exclusive use. Monies from Owner's Contingency may be spent in the discretion of Owner. Any unused Owner's Contingency shall accrue to the Owner.. § 3.1.4 STRUCTURAL AND ENVIRONMENTAL TESTS, SURVEYS AND REPORTS In the Preconstruction Phase, the Owner shall furnish the items set forth in this Section 3.1.4 with reasonable promptness and at the Owner's expense. Such documents shall be provided for information only and are not warranted or represented to show the conditions at the Project site accurately. Construction Manager may use the information at its own risk and shall use customary precaution relating to the performance of the Work. Notwithstanding the preceding sentences and the delivery of surveys or other documents and reports by Owner, lines, cables, pipes, or pipelines on the Property. Contractor shall be responsible for any damage done to such lines, cables, pipes and pipelines during the Work if the same are shown on documents provided or obtained by the Construction Manager or if Construction Manager reasonably should have known that such subsurface features were present on the Site. § 3.1.4.1 Reports, surveys, drawings and tests concerning the conditions of the site which are required by law. § 3.1.4.2 Surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a written legal description of the site. The surveys and legal information shall include, as applicable, grades and lines of streets, alleys, pavements and adjoining property and structures; adjacent drainage; rights -of -way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data pertaining to existing buildings, other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All information on the survey shall be referenced to a project benchmark. § 3.1.4.3 The services of a geotechnicai engineer when such services are reasonably required by the Work and requested by the Construction Manager. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and resistivity tests, including necessary operations for anticipating subsoil conditions, with reports and appropriate professional recommendations. § 3.1.4.4 Structural, mechanical, chemical, air and water pollution tests, tests for hazardous materials, and other laboratory and environmental tests, inspections and reports which are required by law. § 3.1.4.5 The services of other consultants when such services are reasonably required by the Scope of the Work or the Project and are approved by the Owner. § 3.2 OWNER'S DESIGNATED REPRESENTATIVE Owner (City Council), by majority vote, is the only representative of the Owner, having the power to enter into a Contract, approve changes in the Scope of the Work, approve a change or construction change directive in the amount of $24,999.99 or more or requiring an increase in the Guaranteed Maximum Price, or to agree to an extension to the date of Substantial or Final Completion. The Owner shall designate one or more authorized representatives to act on its behalf in the day-to-day administration of the Project, to issue stop work orders, and to authorize expenditures within Owner's Contingency. The City Council authorized representatives is the City Manager, or his staff representatives. Init.AIA Document At 21 TMCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 9 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (42a3007293) § 3.3 ARCHITECT The Construction Manager's services shall be provided in conjunction with the services of an Architect. The terms of the agreement between the Owner and the Architect shall be available for inspection by the Construction Manager upon request. § 3.4 LEGAL REQUIREMENTS The Construction Manager shall be responsible for determining and advising the Architect and Owner of any special legal requirements relating specifically to the Project which differ from those generally applicable to construction in the jurisdiction of the Project. ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRECONSTRUCTION PHASE SERVICES The Owner shall compensate and make payments to the Construction Manager for Preconstruction Phase services as follows: § 4.1 COMPENSATION § 4.1.1 For the services described in Sections 2.1 and 2.2, the Construction Manager's compensation shall be calculated as follows: $ 6,500.00 (State basis of compensation, whether a stipulated sum, multiple of Direct Personnel Expense, actual cost, etc. Include a statement of reimbursable cost items as applicable.) § 4.1.2 Compensation for Preconstruction Phase Services shall be equitably adjusted if such services extend beyond ( 30 ) days from the date of this Agreement or if the originally contemplated scope of services is significantly modified. § 4.1.3 if compensation is based on a multiple of Direct Personnel Expense, Direct Personnel Expense is defined as the direct salaries of the Construction Manager's personnel engaged in the Project and the portion of the cost of their mandatory and customary contributions and benefits related thereto, such as employment taxes and other statutory employee benefits, insurance, sick leave, holidays, vacations, pensions and similar contributions and benefits. § 4.2 PAYMENTS § 4.2.1 Payments shall be made monthly following presentation of the Construction Manager's invoice and, where applicable, shall be in proportion to services performed. § 4.2.2 Payments are due and payable Thirty ( 30 ) days from the date the Construction Manager's invoice is received by the Owner. Amounts unpaid after the date on which payment is due shall bear interest at the rate entered below, or in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located. (Insert rate of interest agreed upon.) I per annum (Usury laws and requirements under the Federal Truth in Lending Act, similar state and local consumer credit laws and other regulations at the Owner's and Contractor's principal places of business, the location of the Project and elsewhere may affect the validity of this provision. Legal advice should be obtained with respect to deletions or modifications, and also regarding requirements such as written disclosures or waivers.) ARTICLE 5 COMPENSATION FOR CONSTRUCTION PHASE SERVICES The Owner shall compensate the Construction Manager for Construction Phase services as follows: Fixed Fee of 5.5 % of the cost of the work. [nit. General Document A121 TmCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 10 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No. 1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) § 5.1 COMPENSATION § 5.1.1 For the Construction Manager's performance of the Work, the Owner shall pay the Construction Manager in current funds and subject to the Guaranteed Maximum Price the Contract Sum consisting of the Cost of the Work as defined in Article 6, the expended portion of the Construction Contingency as defined in Section 2.2.2, and the Construction Manager's Fee determined as follows: As adjusted by any approved Change Order, Notwithstanding the foregoing changes in the Scope of the Work and change orders may be permitted only in accordance with the provisions of the Contract. No Construction Manager fee shall be paid on the Construction Manager's Contingency or the Owner's Contingency until funds are allocated from those contingencies to the Cost of the Work. All reimbursement for profit; indirect costs; all telephone bills for all personnel; all facsimile charges; home office personnel and benefits assigned to the Project; home office overhead and expenses; home office personnel relocation; all home office accounting, audit, legal, and data processing fees and expenses; and all travel, meals and lodging shall be deemed to be included in the Construction Manager's fee. For Owner's approved changes in the Scope of the Work resulting in an increase or decrease in each Guaranteed Maximum Price, the Construction Manager shall receive and increase or decrease in fee. General Condition Cost and Reimbursed items as submitted to City in " step 2" Proposal. (State a lump sum, percentage of actual Cost of the Work or other provision for determining the Construction Manager's Fee, and explain how the Construction Manager's Fee is to be adjusted for changes in the Work.) § 5.2 GUARANTEED MAXIMUM PRICE § 5.2.1 The Guaranteed Maximum Price for the Project shall be added to this Agreement by the execution of Amendment No. 1, as .approved by Owner's City Council, which Amendment No. 1 shall thereafter be incorporated into this Agreement for all purposes. The sum of the Cost of the Work, General Conditions of the Contract, and the Construction Manager's Fee are guaranteed by the Construction Manager not to exceed the amount provided in Amendment No. i ("Guaranteed Maximum Price"), as approved by Owner's City Council, subject to any additions and deductions approved by Owner's City Council, due to Owner's City Council -approved changes in the Work as provided in the Contract documents. Such maximum sum as adjusted by approved changes in the Work is referred to in the Contract Documents as the Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Construction Manager without reimbursement (paragraphs deleted) By the Owner. Should the Construction Manager complete the Project for less than the Guaranteed Maximum Price, the remaining funds shall be credited to the Owner as a deduction from the Guaranteed Maximum Price. Construction Manager shall also return to the Owner all unused funds from any Contingency account as a deduction from the Guaranteed Maximum Price. The Construction Manager shall not participate in any savings. All savings shall be credited to Owner. It is the intent of the parties that if the Cost of the Work plus the Construction Manager's fee is less than the Guaranteed Maximum Price, as it may be adjusted by approved Change Orders, the entire amount of the savings shall be returned to Owner. (Insert specific provisions if the Construction Manager is to participate in any savings.) § 5.3 CHANGES IN THE WORK § 5.3.1 Adjustments to the Guaranteed Maximum Price shall be calculated in accordance with Article 7 of the General Conditions of the Contract, as amended. Adjustments to the Guaranteed Maximum Price shall only be considered on account of Owner -approved changes in the Work subsequent to the execution of Amendment No. 1; provided, however, that no adjustment to the Guaranteed Maximum Price shall become effective unless approved by the Owner. § 5.3.2 In calculating adjustments to subcontracts (except those awarded with the Owner's prior consent on the basis of cost plus a fee), the terms "cost" and "fee" as used in Section 7.3.3.3 of A201 TM-1997 and the terms "costs" and "a reasonable allowance for overhead and profit" as used in Section 7.3.6 of A201 TM-1997 shall have the meanings assigned to them in that document and shall not be modified by this Article 5. Adjustments to subcontracts awarded with the Owner's prior consent on the basis of cost plus a fee shall be calculated in accordance with the terms of those subcontracts. § 5.3.3 In calculating adjustments to the Contract, the terms "cost" and "costs" as used in the above -referenced provisions of A201 TM-1997 shall mean the Cost of the Work as defined in Article 6 of this Agreement, and the term Init. AIA Document A121 nmCMc — 2003 and AGC Document 565. Copyright© 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 1 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4293007293) "and a reasonable allowance for overhead and profit" shall mean the Construction Manager's Fee as defined in Section 5.1.1 of this Agreement. § 5.3.4 If no specific provision is made in Section 5.1.1 for adjustment of the Construction Manager's Fee in the case of changes in the Work, or if the extent of such changes is such, in the aggregate, that application of the adjustment provisions of Section 5.1.1 will cause substantial inequity to the Owner or Construction Manager, the Construction Manager's Fee shall be equitably adjusted on the basis of the Fee established for the original Work. ARTICLE 6 COST OF THE WORK FOR CONSTRUCTION PHASE § 6.1 COSTS TO BE REIMBURSED § 6.1.1 The term "Cost of the Work" shall mean direct, actual, and verifiable costs reasonably and necessarily incurred by the Construction Manager in the proper performance of the Work as described in this Article 6. Such costs shall be at rates not higher than those customarily paid at the place of the Project except with prior written consent of the Owner. The Cost of the Work shall include only the items set forth in this Article 6 — General Conditions. § 6.1.2 LABOR COSTS .1 Wages of construction workers directly employed by the Construction Manager performing on -site work, or with the Owner's prior written agreement, performing same at off -site workshops if authorized by Owner through the competitive proposal process. .2 That portion of the wages or salaries of the Construction Manager's supervisory and administrative personnel when stationed at the site with the Owner's written approval, but only when directly involved in the Project. Classification Name (If it is intended that the wages or salaries of certain personnel stationed at the Construction Manager's principal office or offices other than the site office shall be included in the Cost of the Work, such personnel shall be identified below.) .3 Wages and salaries of the Construction Manager's supervisory or administrative personnel engaged, at factories, workshops or on the road, in expediting the production or transportation of materials or equipment required for the Work, but only for that portion of their time directly attributed to and required for the Work, and only as approved by the Owner.. .4 Costs paid or incurred by the Construction Manager for employment -related taxes, insurance, contributions, assessments and benefits required by law or collective bargaining agreements, and, for personnel not covered by such agreements, customary benefits such as sick leave, medical and health benefits, holidays, vacations and pensions, provided that such costs are based on wages and salaries included in the Cost of the Work under Sections 6.1.2.1 through 6.1.2.3. § 6.1.3 SUBCONTRACT COSTS Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the subcontracts. Any Subcontract Work to be performed by the Construction Manager's own forces on the basis of a bid or proposal submitted by the Construction Manager per Article 2.3.2.1, as amended, shall be treated as Work performed by a subcontractor under Article 6.1.3. the Construction Manager's compensation for such Subcontract Work performed shall be based on the amount of the bid or proposal submitted by the Construction Manager for such Work, rather than "actual costs" as provided elsewhere in Article 6 of this Agreement. Costs paid to the Construction Manager for such Work shall be treated only as "subcontract costs" for purposes of computing the allowable cost and fees payable to the Construction Manager. § 6.1.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED CONSTRUCTION .1 Costs, including transportation, of materials and equipment incorporated or to be incorporated in the completed construction. .2 Costs of materials described in the preceding Section 6.1.4.1 in excess of those actually installed but required to provide reasonable allowance for waste and for spoilage. Unused excess materials, if any, shall become the Owner's property at the completion of the Work or, at the Owner's option, shall be Irtlt. AIA Document A121 TMCMc — 2003 and AGC Document 565. Copyright© 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 12 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01/2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) sold by the Construction Manager; amounts realized, if any, from such sales shall be credited to the Owner as a deduction from the Cost of the Work and the Guaranteed Maximum Price. § 6.1.5 COSTS OF OTHER MATERIALS AND EQUIPMENT, TEMPORARY FACILITIES AND RELATED ITEMS .1 Costs, including transportation, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, machinery, equipment, and hand tools not customarily owned by the construction workers, which are provided by the Construction Manager at the site and fully consumed in the performance of the Work; and cost less salvage value on such items if not fully consumed, whether sold to others or retained by the Construction Manager. Cost for items previously used by the Construction Manager shall mean fair market value with respect to each subcontract agreement throughout the Scope and .2 Rental charges for temporary facilities, machinery, equipment and hand tools not included in 5.1.1 and not customarily owned by the Construction Manager or construction workers, which are provided by the Construction Manager at the site. Rates, terms of rental and quantities of equipment rented shall be consistent with current area rates and fees, and be subject to the Owner's prior written responsibility for such rental charges. .3 Costs of removal of debris from the site. .4 Reasonable, necessary and actual reproduction costs, and postage and express delivery charges at the site office. § 6.1.6 MISCELLANEOUS COSTS .1 That portion directly attributable to this Contract of the actual cost of premiums for insurance and bonds, at rates set by the state regulatory authority. (If charges for self-insurance are to be included, specify the basis of reimbursement.) .2 Sales, use or similar taxes imposed by a governmental authority which are related to the Work and for which the Construction Manager is liable. .3 Fees and assessments for the building permit and for other permits, licenses and inspections for which the Construction Manager is required by the Contract Documents to pay. .4 Fees of testing laboratories for tests required by the Contract Documents and paid by the Construction Manager, except those related to nonconforming Work other than that for which payment is permitted by Section 6.1.8.2. .5 Royalties and license fees paid for the use of a particular design, process or product required by the Contract Documents; the cost of defending suits or claims for infringement of patent or other intellectual property rights arising from such requirement by the Contract Documents; payments made in accordance with legal judgments against the Construction Manager resulting from such suits or claims and payments of settlements made with the Owner's consent; provided, however, that such costs of legal defenses, judgment and settlements shall not be included in the calculation of the Construction Manager's Fee or the Guaranteed Maximum Price and provided that such royalties, fees and costs are not excluded by the last sentence of Section 3.17.1 of A201 TM-1997 or other provisions of the Contract Documents. .6 Data processing costs related to the Work. .7 Deposits lost for causes other than the Construction Manager's negligence or failure to fulfill a specific responsibility to the Owner set forth in this Agreement. .8 Legal, mediation and arbitration costs, other than those arising from disputes between the Owner and Construction Manager, reasonably incurred by the Construction Manager in the performance of the Work and with the Owner's written permission, which permission shall not be unreasonably withheld. .9 Expenses incurred in accordance with Construction Manager's standard personnel policy for relocation and temporary living allowances of personnel required for the Work, in case it is necessary to relocate such personnel from distant locations. § 6.1.7 OTHER COSTS .1 Other actual, direct, and verifiable costs reasonably and necessarily incurred in the performance of the Work if and to the extent approved in advance in writing by the Owner and only if not excluded under Section 6.2. Init. AIA Document A121 TMCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 3 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01/2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (42a3007293) § 6.1.8 EMERGENCIES AND REPAIRS TO DAMAGED OR NONCONFORMING WORK The Cost of the Work shall also include actual costs described in Section 6.1.1 which are reasonably and necessarily incurred by the Construction Manager: .1 In taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of persons and property, as provided in Section 10.6 of the General Conditions of the Contract, to the extent practicable and not resulting from the negligence of the Construction Manager. The Construction Manager will obtain the Owner's prior approval before incurring such expenses. .2 In repairing or correcting damaged or nonconforming Work executed by the Construction Manager or the Construction Manager's Subcontractors or suppliers, provided that such damaged or nonconforming Work was not caused by or contributed to by the negligence or failure of the Construction Manager or the Construction Manager's foremen, engineers or superintendents, or other supervisory, administrative or managerial personnel to fulfill a specific responsibility to the Owner set forth in this Agreement, or the failure of the Construction Manager's personnel to supervise adequately the Work of the Subcontractors or suppliers; and further provided that such costs of repair or correction is not recoverable by the Construction Manager after exhausting all attempts to obtain same from insurance, Subcontractors, suppliers, or bonding companies.. § 6.1.9 The costs described in Sections 6.1.1 through 6.1.8 shall be included in the Cost of the Work notwithstanding any provision of the General Conditions of the Contract or other Conditions of the Contract which may require the Construction Manager to pay such costs, unless such costs are excluded by the provisions of Section 6.2 or other provisions of or amendments to this Agreement. § 6.2 COSTS NOT TO BE REIMBURSED § 6.2.1 The Cost of the Work shall not include: .1 Salaries and other compensation of the Construction Manager's personnel stationed at the Construction Manager's principal office or offices other than the site office, except as specifically provided in Sections 6.1.2.2 and 6.1.2.3. .2 Expenses of the Construction Manager's principal office and offices other than the site office, except as specifically provided in Section 6.1. .3 Overhead and general expenses, except as may be expressly included in Section 6.1. .4 The Construction Manager's capital expenses, including interest on the Construction Manager's capital employed for the Work. .5 Rental costs of machinery and equipment, except as specifically provided in Section 6.1.5.2. .6 Costs due to the negligence of the Construction Manager or to the failure of the Construction Manger to fulfill a specific responsibility to the Owner set forth in this Agreement. .7 Costs incurred in the performance of Preconstruction Phase Services. .8 Except as provided in Section 6.1.7.1, any cost not specifically and expressly described in Section 6.1. .9 Costs which would cause the Guaranteed Maximum Price to be exceeded. .10 Delay damages or claims, including any material price increases during each respective subcontract agreement. .11 Storage costs, unless with prior written Owner approval. .12 Taxes on any goods or services if Owner has provided Construction Manager with its tax exemption certificate. § 6.3 DISCOUNTS, REBATES AND REFUNDS § 6.3.1 Construction Manager shall take advantage of all available discounts, rebates and refunds for supplies, materials and equipment connected with the Work and which conform to the Contract Documents, which discounts, rebates and refunds shall accrue to the benefit of the Owner. Cash discounts available to the Construction Manager shall accrue to the Owner. Trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment shall accrue to the Owner, and the Construction Manager shall make provisions so that they can be secured. § 6.3.2 Amounts which accrue to the Owner in accordance with the provisions of Section 6.3.1 shall be credited to the Owner as a deduction from the Cost of the Work. Init. AIA Document A121 TMCMc — 2003 and AGC Document 565. Copyright© 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 14 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) § 6.4 ACCOUNTING RECORDS § 6.4.1 The Construction Manager shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Contract; the accounting and control systems shall be satisfactory to the Owner. The Owner and the Owner's accountants or other representative shall be afforded access to the Construction Manager's records, books, correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to this Project, and the Construction Manager shall preserve these for a period of twelve years after final payment, or for such longer period as may be required by law, including any record retention laws applicable t the Owner. ARTICLE 7 CONSTRUCTION PHASE § 7.1 PROGRESS PAYMENTS § 7.1.1 Based upon Applications for Payment properly submitted to the Architect by the Construction Manager and Certificates for Payment issued by the Architect, the Owner shall make progress payments on account of the Contract Sum to the Construction Manager as provided below and elsewhere in the Contract Documents. § 7.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, or as follows: § 7.1.3 The Construction Manager's invoice or Application for Payment must be presented to the Architect for approval prior to presentation to the Owner. Within seven days of receipt of construction Manager's invoice, the Architect shall make a recommendation to the Owner regarding payment. In making such recommendation, the Architect shall specifically state the basis for such recommendation and the specific amount required to be withheld to protect the Owner's interest. Provided an Application for Payment is received and certified by the Architect not later than the first (Is`) day of a month, the Owner shall make payment to the Construction Manager for undisputed amounts within thirty (30) days of receipt of the certified Application for Payment by Owner. If an Application for Payment is received by the Architect after the application date fixed above, payment of the undisputed amounts shall be made by the Owner not later than twenty-five (25) days after the Architect receives and certifies the Application for Payment except that no payment shall be considered not paid when due or overdue except in accordance with Texas Government Code Section 2251.021. § 7.1.4 With each Application for Payment, the Construction Manager shall submit payrolls, petty cash accounts, receipted invoices or invoices with check vouchers attached and any other evidence required by the Owner or Architect to demonstrate that cash disbursements already made by the Construction Manager on account of the Cost of the Work equal or exceed (1) progress payments already received by the Construction Manager; less (2) retainage; less (3) that portion of those payments attributable to the Construction Manager's Fee; plus (4) payrolls for the period covered by the present Application for Payment. Each Application for Payment shall also include a list, with backup data, of how each payment shall be spent, including a list detailing which subcontractors and suppliers will be paid out of funds paid by the Owner and the amount of such payments to subcontractors and suppliers, and in the next payment cycle, proof of each payment to Construction Manager's subcontractors and suppliers after payment. § 7.1.5 Each Application for Payment shall be based upon the most recent schedule of values submitted by the Construction Manager in accordance with the Contract Documents. The schedule of values shall allocate the entire Guaranteed Maximum Price among the various portions of the Work, except that the Construction Manager's Fee shall be shown as a single separate item. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Architect may require. This schedule, unless objected to by the Architect, shall be used as a basis for reviewing the Construction Manager's Applications for Payment. § 7.1.6 Applications for Payment shall show the percentage completion of each portion of the Work as of the end of the period covered by the Application for Payment. The percentage completion shall be the percentage of that portion of the Work which has actually been completed. § 7.1.7 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: Init. AIA Document A121 TMCMc — 2003 and AGC Document 565. Copyright 01991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 15 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) .1 Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values, as the Guaranteed Maximum Price is adjusted for Owner -approved Change Orders and as authorized by the Architect. .2 Add that portion of the Guaranteed Maximum Price properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work or, if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing. .3 Add the Construction Manager's Fee. The Construction Manager's Fee shall be computed upon the Cost of the Work described in the two preceding Sections at the rate stated in Section 5.1.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Section, shall be an amount which bears the same ratio to that fixed -sum Fee as the Cost of the Work in the two preceding Sections bears to a reasonable estimate of the probable Cost of the Work upon its completion. .4 Subtract the aggregate of previous payments made by the Owner. .5 Subtract the shortfall, if any, indicated by the Construction Manager in the documentation required by Section 7.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the Owner's accountants or other representatives in such documentation. .6 Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Section 9.5 of the General Conditions of the Contract. .7 Subtract retainage of five percent (5%) of the remaining amount of the progress payment.. § 7.1.8 Except with the Owner's prior approval, payments to Subcontractors shall be subject to retention of not less than five (5) percent.. The Owner and the Construction Manager shall agree upon a mutually acceptable procedure for review and approval of payments and retention for subcontracts. § 7.1.9 Except with the Owner's prior written approval, the Construction Manager shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. § 7.1.10 By submitting the Construction Manager's Applications for Payment, the Construction Manager is certifying that the information presented is true, correct, accurate and complete; that he has made the necessary detailed examinations, audits and arithmetic verifications; that the submitted Work has been completed to the extent represented in the Applications for Payment; that the materials and supplies identified in the Applications for Payment have been purchased, paid for and received; that the subcontractors have been paid as identified in the Applications for Payment; and that he has made the necessary on -site inspections to confirm the accuracy of the Applications for Payment; that there are no known mechanic's or materialmen's liens outstanding at the date of requisition; that all due and payable bills with respect to the Work have been paid to date or are included in the amount requested in the current application; that except for such bills not paid but so included, there is no known basis for the filing of mechanic's or materialmen's liens; and that releases from all subcontractors and materialmen have been obtained in such form as to constitute an effective release of lien under the laws of the State of Texas causing all Work performed and for which payment has been made by the Owner to the Contractor. In certifying the Construction Manager's Application for Payment, the Architect represents that he has observed the progress of the Work, critically evaluated, reviewed and certified that the amounts requested are valid and correct. The issuance of a certificate for payment shall not be a representation by the Architect that the Architect has made exhaustive or continuous on -site inspections or that the Architect has made examinations to ascertain how or for what purposes the Construction Manager has used amounts previously paid on account of the Contract. Such examinations, audits and verifications, if required by the Owner, will be performed by the Owner's accountants or other representatives of the Owner acting in the sole interest of the Owner. § 7.2 FINAL PAYMENT § 7.2.1 As a condition precedent to the Owner's obligation to make all of the requirements of Sections 3.5.5, 3.5.8, 9.8.2, 9.10.7.2, and 10.8.1 of the General Conditions of the Contract shall have been met and the following must have occurred. Final payment for the Work by the Owner to the Construction Manager, (1) the Work, and the Contract have been fully performed by the Construction Manager including the Construction Manager's responsibility to correct nonconforming Work, except for the Construction Manager's responsibility to satisfy other requirements, if any, which Owner agrees in writing necessarily survive final payment; (2) a final Application for Payment and a final accounting for the Cost of the Work have been submitted and certified by the Construction Manager and reviewed by the Owner's accountants or other representatives; (3) a final Certificate for Payment has Init. AIA Document A121 TMCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. Ali rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 6 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) then been issued by the Architect; (4) Contractor certifies that the Project has been constructed in compliance with the Architect's or Engineer's plans, specifications and Construction Documents by completing the Texas Accessibility Standards (TAS) and the completion of the Field Inspection Compliance items; and (5) Owner has voted to accept the Work and approve Final Payment. Such final payment shall be made by the Owner not more than 30 days after Owner approval. If Final Payment is withheld, the amount withheld shall not be greater than the amount of work remaining to be performed or the amount of correction of nonconforming work. § 7.2.2 The amount of the final payment shall be calculated as follows: .1 Take the sum of the Cost of the Work substantiated by the Construction Manager's final accounting and the Construction Manager's Fee, but not more than the Guaranteed Maximum Price. .2 Subtract amounts, if any, for which the Architect or Owner disputes, refuses or withholds payment, including liquidated damages, if any. .3 Subtract the aggregate of previous payments made by the Owner. If the aggregate of previous payments made by the Owner exceeds the amount due the Construction Manager, the Construction Manager shall reimburse the difference to the Owner. § 7.2.3 The Owner's accountants or other representatives will review and report in writing on the Construction Manager's final accounting within 30 days after delivery of the final accounting to the Architect by the Construction Manager. Based upon such Cost of the Work as the Owner's accountants or other representatives report to be substantiated by the Construction Manager's final accounting, and provided the other conditions of Section 7.2.1 have been met, the Architect will, within seven days after receipt of the written report of the Owner's accountants or other representatives, either issue to the Owner a final Certificate for Payment with a copy to the Construction Manager or notify the Construction Manager and Owner in writing of the Architect's reasons for withholding a certificate as provided in Section 9.5.1 of the General Conditions of the Contract . The time periods stated in this Section 7.2 supersede those stated in Section 9.4.1 of the General Conditions of the Contract.. § 7.2.4 If the Owner's accountants or other representatives report the Cost of the Work as substantiated by the Construction Manager's final accounting to be less than claimed by the Construction Manager, the Construction Manager shall be entitled to proceed in accordance with Article 9 without a further decision of the Architect. Unless agreed to otherwise, a demand for mediation, or other dispute resolution as provided in the Contract Documents, of the disputed amount shall be made by the Construction Manager within thirty (30) days after the Construction Manager's receipt of a copy of the Architect's final Certificate for Payment. Failure to make such demand within this thirty (30)-day period shall result in the substantiated amount reported by the Owner's accountants becoming binding on the Construction Manager. Pending a final resolution of the disputed amount, the Owner shall pay the Construction Manager the amount certified in the Architect's final Certificate for Payment. § 7.2.5 If, subsequent to final payment and at the Owner's prior written request, the Construction Manager incurs costs described in Section 6.1 and not excluded by Section 6.2 (1) to correct nonconforming Work that is not the fault of the Construction Manager, or (2) arising from the resolution of disputes, the Owner shall reimburse the Construction Manager such costs and the Construction Manager's Fee, if any, related thereto on the same basis as if such costs had been incurred prior to final payment, but not in excess of the Guaranteed Maximum Price. If the Construction Manager has participated in savings, the amount of such savings shall be recalculated and appropriate credit given to the Owner in determining the net amount to be paid by the Owner to the Construction Manager. ARTICLE 8 INSURANCE AND BONDS § 8.1 INSURANCE REQUIRED OF THE CONSTRUCTION MANAGER During both phases of the Project, the Construction Manager shall purchase and maintain insurance as will protect the construction Manager, the Owner, the Owner's agents, trustees, representatives, servants, employees, and officers, set forth in this Article and in Article 11 of the General Conditions of the Contract, which may arise out of claims as set forth below, and which may arise out of or result from the Construction Manager's operations under this Contract, whether such operations be by Construction Manager, or by any subcontractor or by anyone directly or indirectly employed by any of them or by anyone for whose acts any of them may be liable. Except as to Workers' Compensation insurance, Owner shall be listed as an additional insured, and said insurance shall be primary as to the owner. All identified insurance coverages shall have a waiver of subrogation in favor of Owner. Init. AIA Document A121 n"CMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 7 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No. 1 000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) Said insurance shall be in companies acceptable to Owner, and which are authorized to do business in Texas, with an A.M. Best Rating of "A" or better. The Construction Manager shall provide the Owner with certificates, endorsements, and copies of policies evidencing the coverage for all insurance required by Article 11 of the General Conditions of the Contract and this Article, as amended, prior to the start of the Work. Such insurance shall be written for not less than the following limits, or greater if required by law: § 8.1.1 Workers' Compensation and Employers' Liability Insurance meeting statutory limits mandated by state and federal laws. Because Construction Manager will be performing on -site services and observations, a copy of a certificate of insurance, a certificate of authority to self -insure issued by the Texas Worker's Compensation Commission, or a coverage agreement (TWCC-81, TWCC-82, TWCC-83 or TWCC-84), showing statutory workers' compensation insurance coverage for the Construction Manager or his employees providing services on the Project is required for the duration of the Project. .1 Duration of the Project includes the time from the beginning of the work on the Project until the Construction Manager's work on the Project has been completed and accepted by the Owner. .2 Persons providing services on the Project include all persons or entities performing all or part of the services the Construction Manager has undertaken to perform on the Project, regardless of whether that person contracted directly with the Construction Manager 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 that furnishes persons to provide services on the Project. 3 Services include, without limitation, providing, hauling, or delivering equipment or materials, or activities unrelated to the Project, such as food/beverage vendors office supply deliveries, and delivery of portable toilets. .4 The Construction Manager 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 401.011 (44) for all employees of the Construction Manager providing services on the Project for the duration of the Project. .5 The construction Manager must provide a certificate of coverage to the Owner prior to being awarded the contract. .6 If the coverage period shown on the Construction Manager's current certificate of coverage ends during the duration of the Project, the Construction Manager must, prior to the end of the coverage period, file a new certificate of coverage with the Owner showing that coverage has been extended. .7 The Construction manager shall obtain from each person providing services on the Project, and provide to the Owner: .1 A certificate of coverage, prior to that person beginning work on the Project, so Owner will have on file certificates of coverage showing coverage for all persons providing services on the Project; and .2 No later than seven days after receipt by the Construction Manager, 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. .,S The Construction Manager shall retain all required certificates of coverage for the duration of the Project and for one year thereafter. .9 The Construction manager shall notify Owner in writing by certified mail or personal delivery, within ten days after the Construction Manager knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the Project. Init. AIA Document A121 TMCMc — 2003 and AGC Document 565. Copyright© 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 18 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) .10 The Construction Manager 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. .11 The Construction Manager shall contractually require each person with whom it contracts to provide services on a project to: .1 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 401.011 (44) for all of its employees providing services on the Project for the duration of the Project. .2 Provide to the Construction Manager, 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. 3 Provide the construction Manager, 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. .4 Obtain from each other person with whom it contracts, and provide to the Construction Manager. .1 A certificate of coverage, prior to the other person beginning work on the Project; and .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. 5 Retain al required certificates of coverage on file for the duration of the Project and for one year thereafter. .6 Notify the governmental entity in writing by certified mail or personal delivery, within ten 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 .7 Contractually require each person with whom it contracts to perform as required by item 1-7, with the certificates of coverage to be provided to the person for whom they are providing services. 12 By signing this contract or providing or causing to be provided a certificate of coverage the Construction Manager is representing to the Owner that all employees of the Construction Manager who will provide services on the Project will be covered by workers' 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 Construction Manager to administrative penalties, criminal penalties, civil penalties, or other civil actions. .13 The Construction Manager's failure to comply with any of these provisions is a breach of contract by the Construction Manager that entitles the governmental entity to declare the contract void if the Construction Manager does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. Init. AIA Document A121 TMCMc — 2003 and AGC Document 565. Copyright© 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 19 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01/2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) § 8.1.2 Commercial General Liability including coverage for Premises -Operations, Independent Contractors' Protective, Products -Completed Operations, Contractual Liability, Personal Injury and Broad Form Property Damage (including coverage for Explosion, Collapse and Underground (Paragraphs deleted) hazards) shall be as set forth in Exhibit A to this Agreement and as may be further defined in Article 1 l of the General Conditions of the Contract. A. GENERAL LIABILITY: 01 TYPE: Commercial General Liability, Owner's & Contractor's Protection, Occurrence Basis 02 LIMITS a. GENERAL AGGREGATE: $2,000,000 b. PRODUCTS & COMPLETED OPERATIONS AGGREGATE: $1,000,000 c. PERSONAL & ADV. INJURY: $1,000,000 d. EACH OCCURRENCE: $1,000,000 e. FIRE DAMAGE (ANY ONE FIRE): $50,000 f. MEDICAL EXPENSE LIMIT (ON ANY PERSON): $5,000 B. AUTOMOBILE LIABILITY 01 TYPES: Any Auto or Owned Autos, Hired Autos, Non -Owned Autos 02 LIMITS: a. COMBINED SINGLE LIMIT: (OPT.) $1,000,000 b. BODILY INJURY (PER PERSON): $250,000 c. BODILY INJURY (PER ACCIDENT): $500,000 d. PROPERTY DAMAGE: $100,000 C. EXCESS LIABILITY: 01 TYPE: Umbrella Form including products and completed operation insurance 02 LIMITS: a. EACH OCCURRENCE: $1,000,000 b. AGGREGATE: $1,000,000 D. WORKER'S COMPENSATION AND EMPLOYER'S LIABILITY LIMITS: 01 STATUTORY LIMITS: Designated by Law 02 EACH ACCIDENT: $500,000 03 DISEASE -POLICY LIMIT: $500,000 04 DISEASE -EACH EMPLOYEE: $500,000 E.OTHER: "ALL RISK" Builders Risk (Reporting Form); full insurable value of the Work 01 WINDSTORM (including hail) 0.04 OWNER'S LIABILITY INSURANCE (Separate policy, inclusion or endorsement) Same limits as Contractor's General Liability. Name the Architects and Engineering as additionally insured. 0.05 GUARANTY BONDS (Paragraphs deleted) A. Provide a "Performance Bond" and a "Labor and Material Payment Bond", each in a penal sum equal to 100% of Contract Sum. Bond forms shall be compatible with provisions of governing authorities. File copies of bonds with County Clerk and present Owner with a file receipt. B. Don not commence the Work until bonds and issuing companies have been accepted as satisfactory by the Owner. C. Deliver original bonds to Owner with authorized power -of -attorney. D. Bonds shall remain in force for and until one year after Substantial Completion of the Contract. § 8.1.3 Automobile Liability (owned, non -owned and hired vehicles) for bodily injury and property damage shall be as set forth in Exhibit A to this Agreement and as may be further defined in Article 11 of the General Conditions of the Contract Init. AIA Document A121 TMCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 20 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01/2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) § 8.1.4 Other coverage: Construction Manager shall include All Risk Policy with Windstorm and Hail coverage for 100% value of any structure through out the Project. Coverage shall be as set forth in Exhibit A to this Agreement and as may be further defined in Article 11 of the General Conditions of the Contract. (If Umbrella Excess Liability coverage is required over the primary insurance or retention, insert the coverage limits. Commercial General Liability and Automobile Liability limits may be attained by individual policies or by a combination of primary policies and Umbrella and/or Excess Liability policies. If Project Management Protective Liability Insurance is to be provided, state the limits here.) § 8.2 INSURANCE REQUIRED OF THE OWNER In its discretion, the Owner may purchase and maintain its usual liability and property insurance to protect Owner as may cover its Property under the Umbrella policies. Owner's decision to purchase insurance shall not alter or change the primary coverage status of the insurance provided by the Construction Manager. (Paragraphs deleted) § 8.3 PERFORMANCE BOND AND PAYMENT BOND § 8.3.1 The construction Manager shall furnish payment and performance bonds covering faithful performance of the Contract and payment of obligation arising thereunder. Payment and performance bonds shall be in separate instruments. Bonds may be obtained from an insurance company licensed t do business in the State of Texas, and, for bond amounts that exceed $100,000, that hold a certificate of authority from the U.S. Secretary of the Treasury or reinsurance for liability in excess of $100,000, from a reinsurer authorized and admitted as a reinsurer in the State of Texas and that is a holder of a certificate of authority from the U.S. Secretary of the Treasury to qualify as a surety or reinsurer on obligations permitted or required under federal law and the cost thereof shall be included in the Cost of the Work. The amount of each bond shall be equal to the Guaranteed Maximum Price. If a fixed contract amount or Guaranteed Maximum Price has not yet been determine at the time this Contract is awarded, then the penal sums of the payment and performance bonds delivered to the Owner must each be in an amount equal to the project budget, as specified in the Request for Proposal or Qualifications. The Construction Manager shall deliver the bonds no later than the tenth (I O b) day after the date the Construction Manager executes the Contract, unless the Construction Manager furnishes a bid bond or other financial security acceptable to the Owner to ensure that the Construction Manager will furnish the required payment and performance bonds when a Guaranteed Maximum Price is established. § 8.3.2 The Construction Manager shall deliver the required bonds to the Owner at least one week before the commencement of any Work at the Project site. § 8.3.3 All Payment and Performance Bonds provided by Construction Manager or any subcontractor shall comply with the requirements of Article 7.19-1 of the Texas Insurance Code. All bonds will be reviewed by the Architect for compliance with the Contract Documents prior to execution of the Contract. In the event that the Architect has any questions concerning the sufficiency of the bonds, the bonds will be referred to the Owner or the Owner's representative for review and decision. § 8.3.4 All bonds shall be originals. The Construction Manager shall require the attorney -in -fact who executes the required bonds on behalf of the surety to affix thereto a certified and current copy of the Power -of —Attorney. The name, address, and telephone number of a contact person for the bonding company shall be provided. § 8.3.5 Prior to the commencement of the Work, the construction Manager shall promptly furnish a copy of the bonds, and/or shall permit a copy to be made. § 8.3.6 Bonds shall be signed by an agent resident in the State of Texas and the date of the bond shall be the date of execution of the contract. If at any time during the continuance of the Contract, the surety of the Construction Manager's bonds becomes insufficient, Owner shall have the right to require additional and sufficient sureties which the Construction Manager shall furnish to the satisfaction of the Owner within ten (10) business days after notice to Init. AIA Document A121 TMCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 21 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01/2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) do so. In default thereof, the Construction Manager may be suspended, and all payment or money due to the Construction Manager withheld until sufficient bonds are provided by the Construction Manager. ARTICLE 9 MISCELLANEOUS PROVISIONS § 9.1 DISPUTE RESOLUTION § 9.1.1 During both the Preconstruction and Construction Phases, Claims, disputes or other matters in question between the parties to this Agreement shall be resolved as provided in Article 4 of the General Conditions of the Contract, except that, during the Preconstruction Phase, no decision by the Architect shall be a condition precedent to mediation, litigation, or other means of dispute resolution. § 9.2 OTHER PROVISIONS § 9.2.1 Unless otherwise noted, the terms including capitalized terms used in this Agreement shall have the same meaning as those in the General Conditions of the Contract. § 9.2.2 EXTENT OF CONTRACT This Contract, which includes this Agreement and the other documents incorporated herein by reference, represents the entire and integrated agreement between the Owner and the Construction Manager and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both the Owner and Construction Manager. If anything in any document incorporated into this Agreement is inconsistent with this Agreement, this Agreement shall govern If any portion of this Agreement is determined to be invalid, unenforceable, or void, then that portion shall be severed, and all other portions of this Agreement shall remain in full force and effect. § 9.2.3 OWNERSHIP AND USE OF DOCUMENTS Article 1.6 of the General Conditions of the Contract shall apply to both the Preconstruction and Construction Phases. § 9.2.4 GOVERNING LAW The Contract shall be governed by and construed in accordance with the law of the State of Texas, and mandatory and exclusive venue for any dispute shall be in state district court in the county in which the Owner's main administrative office is located. As a material consideration of the making of this Contract, the modifications to this Contract shall not be construed against the maker of said modifications. § 9.2.5 ASSIGNMENT Once this contract is accepted and signed by Owner, the Owner and Construction Manager respectively bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents. Except as may be provided in the General Conditions of the Contract, neither parry to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. ARTICLE 10 TERMINATION OR SUSPENSION § 10.1 TERMINATION PRIOR TO ESTABLISHING GUARANTEED MAXIMUM PRICE § 10.1.1 Prior to execution by both parties of Amendment No. 1 establishing the Guaranteed Maximum Price, the Owner may terminate this Contract at any time without cause, and the Construction Manager may terminate this Contract for any of the reasons described in Section 14.1.1, 14.1.2, and 14.1.4 of the General Conditions of the Contract.. § 10.1.2 If the Owner or Construction Manager terminates this Contract pursuant to this Section 10.1 prior to commencement of the Construction Phase, the Construction Manager shall not be compensated for any Preconstruction Phase Services performed. § 10.1.3 If the Owner or Construction Manager terminates this Contract pursuant to this Section 10.1 after commencement of the Construction Phase, the Construction Manager shall, in addition to the compensation provided in Section 10.1.2, be paid an amount calculated as follows: .1 Take the Cost of the Work incurred by the Construction Manager. Init. AIA Document At 21 TmCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties, 22 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01/2008 under Order No. 1 000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) .2 Add the Construction Manager's Fee computed upon the Cost of the Work to the date of termination at the rate stated in Section 5.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Section, an amount which bears the same ratio to that fixed -sum Fee as the Cost of the Work at the time of termination bears to a reasonable estimate of the probable Cost of the Work upon its completion. .3 Subtract the aggregate of previous payments made by the Owner on account of the Construction Phase. The Owner shall also pay the Construction Manager fair compensation, either by purchase or rental at the election of the Owner, for any equipment owned by the Construction Manager which the Owner elects to retain and which is not otherwise included in the Cost of the Work under Section 10.1.3.1. To the extent that the Owner elects to take legal assignment of subcontracts and purchase orders (including rental agreements), the Construction Manager shall, as a condition of receiving the payments referred to in this Article 10, execute and deliver all such papers and take all such steps, including the legal assignment of such subcontracts and other contractual rights of the Construction Manager, as the Owner may require for the purpose of fully vesting in the Owner the rights and benefits of the Construction Manager under such subcontracts or purchase orders. Subcontracts, purchase orders and rental agreements entered into by the Construction Manager with the Owner's written approval prior to the execution of Amendment No. I shall contain provisions permitting assignment to the Owner as described above. If the Owner accepts such assignment, the Owner shall reimburse or indemnify the Construction Manager with respect to all costs arising under the subcontract, purchase order or rental agreement except those which would not have been reimbursable as Cost of the Work if the contract had not been terminated. If the Owner elects not to accept the assignment of any subcontract, purchase order or rental agreement which would have constituted a Cost of the Work had this agreement not been terminated, the Construction Manager shall terminate such subcontract, purchase order or rental agreement and the Owner shall pay the Construction Manager the costs necessarily incurred by the Construction Manager by reason of such termination. § 10.2 TERMINATION SUBSEQUENT TO ESTABLISHING GUARANTEED MAXIMUM PRICE Subsequent to execution by both parties of Amendment No. 1, the Contract may be terminated as provided in Article 14 of the General Conditions of the Contract. § 10.2.1 Except for a termination by the Owner for cause or based on default or bankruptcy on the part of the Construction Manager, if the Owner or Construction Manager terminates this Contract pursuant to this Section 10.1 after commencement of the Construction Phase, the Construction Manager shall be paid an amount calculated as follows: .1 Take the Cost of the Work actually and necessarily incurred by the Construction manager. .2 Add the Construction Manager's Fee computed upon the Cost of the Work to the date of termination at the rate stated in Section 5.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Section, an amount which bears the same ratio to that fixed -sum Fee as the Cost of the Work at the time of termination bears to a reasonable estimate of the probable Cost of the Work upon its completion. .3 Subtract the aggregate of previous payments made by the Owner on account of the Construction Phase. The Owner shall also pay the Construction manager fair compensation, either by purchase or rental at the election of the Owner, for any equipment owned by the Construction Manager which the Owner elects to retain and which is not otherwise included in the Cost of the Work under Section 10.1.3.1. To the extent that the Owner elects to take legal assignment of subcontracts and purchase orders (including rental agreements), the Construction Manager shall, as a condition of receiving the payments referred to in this Article 10, execute and deliver all such papers and take all such steps, including the legal assignment of such subcontracts and other contractual rights of the Construction Manager, as the Owner may require for the purpose of fully vesting in the Owner the rights and benefits of the Construction Manager under such subcontracts or purchase orders. Subcontracts, purchase orders and rental agreements entered into by the Construction Manager with the Owner's written approval prior to the execution of Amendment No. I shall contain provisions permitting assignment to the Owner as described above. If the Owner elects not to accept the assignment of any subcontract, purchase order or rental agreement which would have constituted a Cost of the Work had this agreement not been terminated, the Construction Manager shall terminate such subcontract, purchase order or rental agreement. Init. AIA Document At 21 TMCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 23 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) § 10.2.2 In the event of such termination by the Construction Manager, the amount to be paid to the Construction Manager under Section 14.1.3 of A201 T14-1997 shall not exceed the amount the Construction Manager would have been entitled to receive under Sections 10.1.2 and 10.1.3 above, except that the Construction Manager's Fee shall be calculated as if the Work had been fully completed by the Construction Manager, including a reasonable estimate of the Cost of the Work for Work not actually completed. § 10.3 SUSPENSION The Work may be suspended by the Owner as provided in Article 14 of the General Conditions of the Contract; in such case, the Guaranteed Maximum Price, if established, may be increased as provided in Section 14.3.2 of the General Conditions of the Contract. ARTICLE 11 OTHER CONDITIONS AND SERVICES § 11.1 Notwithstanding anything to the contrary in this Agreement, or in any document forming a part hereof, there shall be no mandatory arbitration for any dispute arising hereunder. § 11.2 The Construction Documents prepared by the Architect, and copies thereof furnished to the Contractor, are for use solely with respect to this Project. They are not to be used by the Contractor, Subcontractors, Sub - subcontractors or suppliers on other projects, or for additions to this Project outside the scope of the Work, without the specific written consent of the Owner or the Architect , as appropriate. The Contractor, Subcontractors, Sub - subcontractors and suppliers are granted a limited license to use and reproduce applicable portions of the Drawings, Specifications and other documents prepared by the Architect appropriate to and for use in the execution of their Work under the Contract Documents. § 11.3 Upon Final Completion, Contractor shall certify that the Project has been constructed in compliance with the Architect's or Engineer's plans, specifications, and construction documents. § 11.4 Contractor shall require all construction workers whether Contractor's own forces or the forces of Contractor's subcontractors, to wear identification tags on the front of their persons during all times that they are on Owner's property. Such identification tags shall have identification of the construction worker by number or other identifying medium in a typeface large enough to be seen from eight feet away. § 11.5 Contractor shall require all construction workers, whether Contractor's own forces or the forces of contractor's subcontractors, to park their personal motor vehicles on Owner's property only in the parking place designated by the Owner's campus principal. Any vehicles not parked in the appropriate locations shall be towed at the vehicle owner's sole expense. § 11.6 Contractor shall follow, and shall require all employees, agents or subcontractors to follow, the tree ordinance of the municipality in which the Project is located. In addition, if not covered by the municipal tree ordinance, Contractor shall barricade and protect all trees on the Project, which shall be included in the Cost of the Work. § 11.7 Contractor shall require all construction workers, whether contractor's own forces or the forces of Contractor's subcontractors, while on Owner's property to refrain from the use of tobacco products, drinking alcoholic beverages, carrying weapons, speaking profane and/or offensive language, or engaging in any interactions of any nature whatsoever with students and teachers, including talking, touching, staring or otherwise contributing to a hostile or offensive environment for Owner's students and staff. All areas of campus, other than the defined construction area, shall be off limits to Contractor's forces, unless their work assignment specifies otherwise. Failure of an individual to adhere to these standards of conduct shall result in the immediate termination of the employment of the offending employee from all construction on any of Owner's property. Repeated termination of Contractor's or Contractor's subcontractor's forces, or one serious infraction, can resulting the immediate termination of this Agreement by Owner. § 11.8 Contractor shall institute a theft deterrent program designed to restrict construction worker access to properties of Owner that are currently in use, to maintain supervision of Contractor's and Contractor's subcontractor's forces, and to reimburse those suffering a theft loss which results from Contractor's forces or Contractor's subcontractor's forces, as charged and determined by the local authorities having jurisdiction. Init. AIA Document At 21 TMCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. 24 Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be / prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) 1112 Contractor shall provide Owner with one sepia set and out electronic copy of final marked -up "as built" drawings of each job site in the Project § 11.10 All sums due hers wader are payable is La Pods, Harris County. Texas § 11.11 This Agreement, in its entirety, shall be binding upon all the parties hereto, their respective successors, heirs, executors, administrators or assigns. § 11.12 Execution of this Agreement shall constitute approval and acreptalsce of ail terms. covenants and conditions as modified and contained in the Contract Documents. § 11.13 By signing this Agreement, the undersigned certifies as followr "Under Section 231.006. Texas Family Code, the vendor or applicant oaxtifies that the individual or business entity named in the contract, bid, or application is not ineligible. to receive the specified grant, loan, or payment and a datowiedges, that this contract may he terminated and payment may be withheld if this certification is inaccurate. § 11.14 Enumeratioe of Pam of the Agreemem This Agreement represents the engirt and integrated agreement between the Owner and the Contractor and supmu des all prior negotiations. mpiesceaations or agreements. either written or oral. This Agmcment may be amended only by written instruction signed by both Owner and Contractor. Any ravitcion, amcndmwa or modification to the Standard Form of this Agee meat shall be valid, binding, and enforceable only if said envision, amendment or modification is made conspicuous by being underlined, lined - through, or highlighted in this Agreement signed by Contractor and Owner. 111is Agreement comprises the documents listed below. § 11.13 Even if the Work is otherwise in compliance with the Schedule, O car rimy, at any time, utu'lsterally direct Construction Manager to accelerate the We*, by among other things, establishing additional shifts, paying or autbmizing overtime or providing additional cgtripu=L In this event, Owner's sole liability w construction Kwager shall be to pay any shift differential, premium, or overtime payments to workers of field supervisors actually incur over and above Construction manages normal times, amounts to accounr for lost efficiency of worker's, and overtime charges for equipment. Any adjustment to the Guaranteed Maximum Price must be approved by Owner in the mamma provided in the Contract. § otwithstandimg any pro Won to the contrary. the waives of >ubrogatioa rights under the property iasuuancc in favor of the Architect, Architect's consultants, separate contractors described in Article 6 of the Gametal Conditi of the Corinne , if mrp, and any of the wlxantractom agents and employees shalt be limited to such parties' dtc activities only, and shall not included my professional liability reined to earns or omissions in their derigm g Tfuis nt eaFOS of the day and year first written above. CONSTRtICT10N MANAGER_ Construction, Inc. (JYfgnanrre) — (rig n) • .�� Mr. Ron Bonomis. City Manager n+o 1 J ( 7MC, Arw I '.(Printed name and riche) (Primed mare as rinse t� ATTEST'I ATTM lop f lira( .t s�v For►A - MIL MA DWumwA Ar2f -CM0 —2an2 nd &= mammr.t eras eDmpyr M 01991 and 2=by sir Aww&w ns asAa d Ardduas and Try AeKow ad t3mnad Conbadon or Anon AN ftW saaary WARAI[ [ This ftct t is p nwKad by U.S. C.gvp" Law and ityrrt Sepal Tma%im Uraulamftad Aprod"Don urdesb'awaon of bHs mMWwx% . or any ponce of W. art reSun W smwa cWN and wWMWal psntltlat, and Ma be 25 / provemitdd to ran wwjtWaet aurrartt pdssft" under icy raw. as TM doaadant er$vad csd by MA aoAwanl al 09MAS an i rr16t2000 wdu 0rdar ND. I00=75455 ! whK;h Sg9fW on r 01 nds 9. anor kW nsaM. Lim MWOW (000097991) Additions and Deletions Report for AIA® Document A 121 TMCMc — 2003 and AGC Document 565 This Additions and Deletions Report, as defined on page 1 of the associated document, reproduces below all text the author has added to the standard form AIA document in order to complete it, as well as any text the author may have added to or deleted from the original AIA text. Added text is shown underlined. Deleted text is indicated with a horizontal line through the original AIA text. Note: This Additions and Deletions Report is provided for information purposes only and is not incorporated into or constitute any part of the associated AIA document. This Additions and Deletions Report and its associated document were generated simultaneously by AIA software at 16:02:34 on 12/01/2008. PAGE A6R€€llilll-€NE'AGREEMENT made as of the fourth day of November in the year of Two Tbousand and Eiebt City of La Porte 1322 South Broadway La Porte, Texas 77572 PATAK Construction Inc. 1927 Hwy 146 Kemah. TX 77565 City of La Porte - Westside Park Project 3600 Canada Road LaPorte, TX 77571 Northwest corner of Canada and Caniff Streets Randall -Porterfield Architects, Inc. A.I.A. 565 FM 270 North League City, Texas 77573 PAGE 2 Additions and Deletions Report for AIA Document A121 TmCMc — 2003 and AGC Document 565. Copyright© 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No. 1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) PAGE 3 The Construction Manager accepts the fiduciary relationship of trust and confidence established with the Owner by this Agreement, and covenants with the Owner to furnish the Construction Manager's best skill, efforts, and judgment and to cooperate with the Architect in furthering the interests of dice —the Owner to build the Proiect defined in the Contract Documents, in accordance with the Owner's reauirements and construction cost limitations, as Owner set forth in the Contract Documents. The Construction Manager shall furnish construction services (in accordance with law), administration and management services and shall use the Construction Manager's best efforts to perform the Project in an expeditious and economical manner consistent with the interests of the Owner. The Owner and the Construction Manager shall endeavor to promote harmony and cooperation among the Owner, Architect, Construction Manager -Manager, Construction Manager's subcontractors, Program Manager (if applicable), and other persons or entities employed by the Owner for the Project. For the Construction Phase, the General Conditions of the contract shall be the AIA® Document A201 TM-1997, General Conditions of the Contract for Construction, as amended for this Project, (the "General Conditions of the Contract") which is incorporated herein by reference. For the Preconstruction Phase, or in the event that the Preconstruction and Construction Phases proceed concurrently, A201 T14 P-the general Conditions of the Contract shall apply to the Preconstruction Phase only as specifically provided in this Agree t-agreement. The term "Contractor" as used in A201 Tm 1997 shall mean the Gens4uetien Manager, the General Conditions of the Contract shall mean the Construction Manager. All Amended General or Supplementary Conditions if any, to the General Conditions Contract are also incorporated herein by reference. Any reference to the General Conditions of the Contract in this Agreement shall be construed as the General Conditions of the Contract as amended for this Proiect. General Conditions Cost as submitted with reimbursed items as part of "step 2" Proposal. The Construction Manager shall perform the services described in this AAiefe—Agreement The services to be provided under Sections 2.1 and 2.2 constitute the Preconstruction Phase services. If the Owner and Construction Manager agree, after consultation with the Architect, the Construction Phase may commence before the Preconstruction Phase is completed, in which case both phases will proceed concurrently. The Construction Manager with the Architect shall jointly schedule and attend regular meetings with the Owner. The Construction Manager shall consult with the Owner and Architect regarding site use and improvements and the selection of materials, building systems and equipment. The Construction Manager shall provide recommendations on construction feasibility; actions designed to minimize adverse effects of labor or material shortages; time requirements for procurement, installation and construction eeffipletiew,-completion to satisfy Owner's time requirements; and factors related to construction cost, including estimates of alternative designs or materials, preliminary budgets and possible economies. § 2.1.2.1 During the Pre -Construction Phase the Construction Manager shall review the Contract Documents to ascertain whether the components of the plumbing electrical and mechanical systems may be constructed without interference with each other, or with the structural or architectural components of the Project or with existing systems. In the event that conflicts between the systems are discovered the Construction Manager shall promptly noyfy the Owner and Architect in writing_ § 2.1.2.2 Notwithstanding any provision of the General Conditions of the Contract to the contrary the Construction Manager shall not be entitled to additional compensation for any delay or disruption to the Work arising from any conflict between the mechanical, electrical and plumbing_ systems with each other, or with the structural or architectural components of the Project or with existing systems if such conflicts should have been discovered during the Construction Documents Phase by the Construction Manager through the exercise of reasonable Additions and Deletions Report for AIA Document All 21 TMCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01/2008 under Order No. 1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) diligence. and the Owner and Architect were not informed of such conflicts as required by subparagraph 2 1 2 ] Provided however, that this provision shall apply only with respect to conflicts a pn earing in the Drawings and Specifications provided for the Construction Manager's review prior to proposal of a Guaranteed Maximum Price as defined in Section 5.2.1 of this Agreement. PAGE When Project requirements described in Section 3.1.1 have been sufficiently identified, the Construction Manager shall prepare, and periodically update, a preliminary Project schedule for the Architect's review and the Owner's approval. The Construction Manager shall obtain the Architect's approval of the portion of the preliminary Project schedule relating to the performance of the Architect's services. The Construction Manager shall coordinate and integrate the preliminary Project schedule with the services and activities of the Owner, Architect and Construction 114aflagei—Manager, and construction Manager's subcontractors. As design proceeds, the preliminary Project schedule shall be updated to indicate proposed activity sequences and durations, milestone dates for receipt and approval of pertinent information, submittal of a Guaranteed Maximum Price proposal, preparation and processing of shop drawings and samples, delivery of materials or equipment requiring long -lead-time procurement, Owner's occupancy requirements showing portions of the Project having occupancy priority, and proposed date 9 priority and fixed completion dates proposed date of Substantial Completion and proposed date of Final Completion acceptable to Owner. If preliminary Project schedule updates indicate that previously approved schedules may not be met, the Construction Manager shall make appropriate recommendations to the Owner and "f�teet--Architect and shall implement necessary corrective action The Construction Manager shall make recommendations to the Owner and Architect regarding the phased issuance of Drawings and Specifications to fedit to phasedeens4uetien of the cv Fk :f e-h phased ate for- the PFqjeet, taking into eansidefation sueh gaetor-s as eeenaFmes, time -of peFfeFmanee, availability of la]uar end materials, and p-eN4sion,for-_te;pefaf faeili so as to facilitate the proposal of a Guaranteed Maximum Price when the Drawings and Specifications are ninety-five (95%) complete The Drawings and Specifications shall be deemed to be ninety percent complete when all elements of the Drawings and Specifications are not less than ninety percent complete as mutually agreed by the Owner and the Construction Manager. § 2.1.5.4 If any estimate submitted to the Owner exceeds previously approved estimates or the Owner's budget, the Construction Manager shall make appropriate recommendations to the Owner and ^- .Architect for cost reductions, including but not limited to substitution of materials or revisions or alterations to the Design Development Documents or the Construction Documents to bring the Project within the Owner's budget but shall not delete necessary components of the Project without Owner's consent In the event that the guality or scope identified in the estimates are unacceptable or exceed the Owner's identified budget the Construction Manager shall work with the Architect to develop options that are acceptable to Owner and are within the Owner's budget and meet the Owner's requirements for dates for Substantial Completion and Final Completion The -TO the extent not inconsistent with the Construction Manager's requirements the Construction Manager shall seek to develop subcontractor interest in the Project and shall furnish to the Owner and Architect for their information a list of possible subcontractors, including suppliers who are to furnish materials or equipment fabricated to a special design, from whom proposals will be requested for each principal portion of the Work. The Architect will promptly reply in writing to the Construction Manager if the Architect or Owner lFeiv-knows of any objection to such subcontractor or supplier. The receipt of such list shall not require the Owner or Architect to investigate the qualifications of proposed subcontractors or suppliers, nor shall it waive the right of the Owner or Architect later to object to or reject any proposed subcontractor or supplier. PAGE Additions and Deletions Report for AIA Document Al 21 TmCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No. 1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) The Construction Manager does not warrant or guarantee estimates and schedules except as may be included as part of the Guaranteed Maximum Price. The recommendations and advice of the Construction Manager concerning design alternatives and potential cost savings shall be subject to the review and approval of the Architect, Owner and the Owner's professional consultants. It is not the Construction Manager's responsibility to ascertain that the Drawings and Specifications are in accordance with applicable laws, statutes, ordinances, building codes, rules and regulations. However, if the Construction Manager recognizes or reasonably should recognize that portions of the Drawings and Specifications are at variance with applicable laws, statutes, ordinances, building codes rules or retyulations, the Construction Manager shall promptly notify the Architect and Owner in writing. § 2.2.1 When all design elements of the Drawings and Specifications are at least 95% complete, as determined by the Architect and the Construction Manner, the Construction Manager shall propose a Guaranteed Maximum Price, which shall be the sum of the estimated Cost of the Wofk and the Genstmetion Manager's Fee Work, General Conditions of the Contract, and the Construction Manager's Fee for the Work. The Construction Manager may propose separate Guaranteed Maximum Prices for separate works within the Project, as schedules and efficiencies dictate. The Construction Manager will work with the Architect to achieve a Guaranteed Maximum Price that is fully acceptable to Owner and is within the Owner's budget for the Work and for the Project. § 2.2.2 As the Dr- and Spe ., :f:et: may bf:„:..1of e eat the time the f_ua f-anteed Mam4ffmfnDz-.mac-pcvposal thi q.,�1 f R a al finishes of equipment all of wWeh if a i ll t+ a b G n..a -1 r The Guaranteed Maximum Price will contain a separately identified contingency factor (the "Construction Contingency"). The Construction Contingency is not allocated to anVparticular item of the Cost of the Work and is established for the Construction Manager's use as may be required for costs incurred in the Work from unforeseen causes or details which should have been anticipated by the Construction Manager at the time of the Owner's approval of the Guaranteed Maximum Price. Such unanticipated causes or details include but are not limited to refinement of details of design within the scope of standards quality and quantities which are reasonably inferable from the Guaranteed Maximum Price documents the correction of minor defects not relating to design delays in receipt of materials, and additional costs relating to Subcontractor defaults not reimbursed by the Subcontractor's bonding company. The Construction Manager, with Owner's written approval may utilize the Construction Contingency for any of the above items within the Cost of the Work without the necessity of a Change Order and without constituting a Change in the Scope of the Work as long as same does not result in an increase in the Guaranteed Maximum Price. All savings will accrue and be available for use only as detailed above by the documentation for all uses of the Construction Contingency shall be provided to Owner. Upon final accounting all remaining monies in the Construction Contingency shall accrue to the Owner. The Guaranteed Maximum Price shall also contain a separately identified contingency factor for Owner's use ("Owner's Contingency") more fully described in subparagraph 3.1.3 herein. PAGE 6 .6 The Date of Final Completion upon which the proposed Guaranteed Maximum Price is based which date must be acceptable to Owner. .7 The Guaranteed Maximum Price proposal may not be based in any part on any subcontract or material supply contract which would require the Owner to compensate the Construction Manager on other than a maximum cost basis. § 2.2.4.1 The Initial Maximum Price is $2 75 Million dollars excluding The Musco Lighting Contract of $975 000 by separate contract. The Initial Budget and desired Maximum Price is $2 75 Million dollars § 2.2.6 Owner shall be allowed not less than thirty days after receipt to review and take action on the Construction Manager's Guaranteed Maximum Price proposal Unless the Owner accepts the Guaranteed Maximum Price Additions and Deletions Report for AIA Document A121 T"CMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and international Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) proposal in wFitip-g-by City Council action on or before the date specified in the proposal for such acceptance and so notifies the Construction Manager, the Guaranteed Maximum Price proposal shall not be effective without written acceptance by the Construction Manager. Acceptance and approval of the Guaranteed Maximum Price by Owner's at a duly -called City Council meeting shall constitute Notice to the Construction Manager of Acceptance of the Guaranteed Maximum Price. § 2.2.8 Upon acceptance by the Owner of the Guaranteed Maximum Price pr-epes 4—, proposal and all assumptions and clarifications, the Construction Manager shall present Amendment No. 1 for approval by the Owner's City Council. Amendment No. i shall contain the Guaranteed Maximum Price and its basis shall be set feAh in me~a-Me~t t`t~ t . basis. The Guaranteed Maximum Price shall be subject to additions and deductions by a change in the Work as-nrttvided in the Ge. er Dee- ifnent and the Date of Substantial r,.mpler•, h tt be h jeet to adjustffl Council as provided in the Contract Documents. The Date of Substantial Completion and Final Completion shall be subject to extension only Qproved by Owner's City Council as provided in the Contract Documents. PAGE 7 § 2.2.10 The Guaranteed Maximum Price shall not include in the Cost of the Work any taxes from which Owner is exempt. § 2.3.1.1 The Construction Phase shall commence on the eater ar 44-4i,-- Owner's acceptance of the Construction Manager's Guaranteed Maximum Price 1 �,z�.j-the O ae 's fi-st authorization to the (`......-R r' Manageftei (a) award a ubeentr- et (Paragraph deleted) Proposal, full execution of Amendment No. 1, and issuance of a written Notice to Proceed Substantial Completion therefore is (365) calendar days from notice to proceed scheduled for December 2008 § 2.3.2.1 Those p f4ionc of the Alerk that the Gens4-aetien Manager- d . R f fefm with t of ffiatef:ials of equipment fabr-ieated te a speeial design �qr- the Aler4 ffefa the list previously f;eviewed and, aft The Construction Manager shall publicly advertise and solicit through competitive purchasing as required by law, competitive sealed bidding or competitive sealed proposals from subcontractors for the performance of all major ((Exceeding $50 000) elements of the Work. The Owner shall then determine, with the advice of the Construction Manager and subject to the reasonable objection of the Architect, which bids will here~r ea The Qwfief Fflay designate e, •F been established] the Owner- r prohibit the !`.,,,sr.-.,etion Manager- fi om obtaining bids r _m _.L-- qualified Manager - has reasonable objeeti ~proposals will be accepted. The Construction Mana eg r may seek to perform portions of the Work required to be publicly advertised. If the Construction Manager submits its own proposal for any portion of the Work, it shall do so in the same manner as required of all subcontractors Owner shall decide whether or not Construction Manager's proposal for self -performing portions of the Project offers the best value to Owner. In opening proposals, neither Construction Manager nor Owner shall disclose the contents of a proposal All proposals shall be made public within seven days after the Owner's final selection or after the award of the contract whichever is later. If Construction Manager's proposal is selected by the Owner, the proposed cost for the self performed work shall be paid to the Construction Manager, pursuant to progress payments as if Construction Additions and Deletions Report for AIA Document A121 TmCMc — 2003 and AGC Document 565. Copyright 0 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01/2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) Manager were a subcontractor. Such payments to Construction Manager shall be included in the Cost of the Work but the Construction Manager shall not receive an additional Construction Manager's fee for self -performed work § 2.3.2.2 If the Guffanteed Ma*imufn 14iee has been established and a speeifie bidder- ameng these whose bids afe deli ea b d e r, ..t eti n Manager- to the Owner- and A fehkeet (1) . nd a to t Owner- by ethe that anothei-7 bid be aeeepted, then the Geasti-aetion Manager- fftay fequ4e that a ehange in the Wer-k be issoed to adjust the Ge er Time and the !_„ Mead MaN m Price by the di ffe a be�weefi the bid F 1, r entity r-eeemmeaded to the Owner- by the Ceasa%etiea Manager- and the amount of the subeefitFaet ef Other - agreement aev&-Wy signed with the per -son or -entity designated by di n..,ae curing the course of recommending proposals, the Construction Manager recommends in writing to Owner a proposal from subcontractor, but the Owner requires another proposal to be accepted the Owner may compensate the Construction Manager by a change in price, time, and/or Guaranteed Maximum Price for any additional cost and risk that the Construction Manager may incur as a result, if such change exists. Construction Manager shall state the additional cost and/or risk in writing and shall provide written proof of same before Owner compensates Construction Manager. § 2.3.2.2.1 The Construction Manager shall include the following specific notices in the formation to proposers: 1 The successful proposer's responsibility to provide workers' compensation insurance in accordance with Texas Labor Code Chapter 406; .2 The successful proposer's responsibility to pay prevailing wages pursuant to Texas Government Code Chapter 2258; .3 A notice of the sales tax exemption for the Project and the procedure for obtaining anyeguired exemption verification or certificate; .4 The notice regarding trench and shoring safety required by Texas Health and Safety Code Section 756.02. § 2.3.2.2.2 Nothing herein shall preclude the Construction Manager from including other notices required or allowed by law § 2.3.2.3 Subcontracts and agreements with suppliers furnishing materials or equipment fabricated to a special design shall conform to the payment provisions of See ie is 7.1.9 and- z.° Article 7 of this Agreement and shall not be awarded on the basis of cost plus a fee without the prior consent of the Owner. § 2.3.2.4 The Construction Manager shall schedule and conduct weekly or otherwise regularly -scheduled meetings at which the Owner, Architect, Construction Manager and appropriate Subcontractors can discuss the status of the Work. The Construction Manager shall prepare and promptly distribute meeting minutes. The Construction Manager shall provide periodic presentations updating the progress quality and status of the Work to Owner's City Council, at Owner's request, at no additional cost to Owner. § 2.3.2.5 Promptly after the Owner's acceptance of the Guaranteed Maximum Price proposal, the Construction Manager shall prepare a schedule in accordance with Section 3.10 of A201T"-9r, the General Conditions of the Contract, , including the Owner's occupancy requirements. § 2.3.2.6 The Construction Manager shall provide monthly written reports to the Owner and Architect on the progress of the entire Work. The Construction Manager shall maintain a daily log containing a record of weather, Subcontractors working on the site, number of workers, Work accomplished, problems encountered and other similar relevant data as the Owner may reasonably require. The log shall be available to the Owner and ^ -it. Architect at any time during work hours and shall be presented for discussion at the meetings referenced in subparagraph 2.3.2.4 above. § 2.3.2.7 The Construction Manager shall develop a system of cost control for the Work, including regular monitoring of actual costs for activities in pr-eb ess-progress, including Changes to the Work approved by Owner Additions and Deletions Report for AIA Document A121 TMCMc — 2003 and AGC Document 565. Copyright ©1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and 6 International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01/2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) and estimates for uncompleted tasks and proposed changes. The Construction Manager shall identify variances between actual and estimated costs and report the variances to the Owner and Architect at regular intervals. § 2.3.3 Upon Final Completion of the Work the Construction Manager shall certify to the Owner that the Project to the best of his knowledge, has been constructed in general accordance with Architect's Construction Documents The certificate shall be in a form which is acceptable to the Owner and Construction Manager, signed by an officer of the Construction Manager and property notarized. § 2.3.4 To the extent that any Work in Project requires a trench excavation exceeding five (5) feet in depth Construction Manager shall fullycomply, and shall require any applicable subcontractor to comply, with: 1 the Occupational Safety and Health Administration standards for trench safety in effect for the construction of the work. .2 the shoring requirements, if any, of the Owner; and .3 any geotechnical information obtained by Owner for use by the Construction Manager in the design of the trench safety system. .4 Construction Manager at Risk will contact locator service when excavating_ § 2.3.5 Trench excavation safety protection shall be a separate pay item and shall be based on linear feet of trench excavated. Special shoring requirements shall also be a separate pay item, and shall be based on the square feet of shoring used. Said cost shall be included within the Guaranteed Maximum Price PAGE 8 Section 3.12.10 of A2,0111A--449-7Tthe General Conditions of the Contract, shall apply to both the Preconstruction and Construction Phases. Section 10.3 of "'menthe General Conditions of the Contract, shall apply to both the Preconstruction and Construction Phases. § 3.1.1 The Owner shall provide M ipfafmatien4nformation required of it pursuant to this Agreement in a timely manner regarding the requirements of the Project, including a program which sets forth the Owner's objectives, constraints and criteria, including space requirements and relationships, flexibility and expandability requirements, special equipment and systems, and site requirements. The Commencement Date will be fixed in a notice to proceed. Substantial Completion therefore is (365) calendar days from notice to proceed scheduled for December, 2008. PAGE 9 § 3.1.3 The Owner shall establish and update an overall budget for the Project, based on consultation with the Construction Manager and .Architect. The Guaranteed Maximum Price shall include an Owner's Contingency, which is defined as an allowance established by the Owner for the Owner's exclusive use Monies from Owner's Contingency be spent in the discretion of Owner. Any unused Owner's Contingency shall accrue to the Owner.. In the Preconstruction Phase, the Owner shall furnish the €ellewing-items set forth in this Section 3.1.4 with reasonable promptness and at the Owner's expense. Except to the *tent that the Construction Manage- knows e Additions and Deletions Report for AIA Document A121 T"CMc — 2003 and AGC Document 565. Copyright© 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4293007293) preeaxtiensSuch documents shall be provided for information only and are not warranted or represented to show the conditions at the Proiect site accurately. Construction Manager may use the information at its own risk and shall use customary precaution relating to the performance of the Work. Notwithstanding the preceding sentences and the delivery of surveys or other documents and reports by Owner, lines cables pipes or pipelines on the Property Contractor shall be responsible for any damage done to such lines, cables, pipes and pipelines during the Work if the same are shown on documents provided or obtained by the Construction Manager or if Construction Manager reasonably should have known that such subsurface features were present on the Site. § 3.1.4.3 The services of a geotechnical engineer when such services are reasonably uired by the Work and requested by the Construction Manager. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous materials, ground corrosion and resistivity tests, including necessary operations for anticipating subsoil conditions, with reports and appropriate professional recommendations. § 3.1.4.5 The services of other consultants when such services are reasonably required by the seepe eScope of the Work or the Project and are 1=egeested-ayproved by the wner. make deeisions an behalf of the Own . b 4.2:1 e€A291TM 199' the Ueh tees does not have sueh aat 4 owner (City Council), by majority vote is the only representative of the Owner, having the power to enter into a Contract approve changes in the Scope of the Work, approve a change or construction change directive in the amount of $24 999 99 or more or requiring an increase in the Guaranteed Maximum Price, or to agree to an extension to the date of Substantial or Final Completion. The Owner shall designate one or more authorized representatives to act on its behalf in the day-to-day administration of the Proiect, to issue stop work orders and to authorize expenditures within Owner's Contingency. The City Council authorized representatives is the City Manager, or his staff representatives PAGE 10 The thisAgr-eefaeFA. The Owner- shall authorize and eause the Afehiteet to provide these Additional Sefviees desefibed the Owner- shag fi+Fpish to the Gensi.,metion beepy ef the Owner's b onstruction Manager's services shall be provided in conjunction with the services of an Architect. The terms of the agreement between the Owner and the Architect shall be available for inspection by the Construction Manager upon request The OvmeF shalt dote o and advise the A -ehito a Genstr-uetiofiM s., Construction Manager shall be responsible for determining and advising the Architect and Owner of any special legal requirements relating specifically to the Project which differ from those generally applicable to construction in the jurisdiction of the Additions and Deletions Report for AIA Document A121 TmCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4293007293) Project. $ 6,500.00 § 4.1.2 Compensation for Preconstruction Phase Services shall be equitably adjusted if such services extend beyond ( 30 ) days from the date of this Agreement or if the originally contemplated scope of services is significantly modified. § 4.2.2 Payments are due and payable Thirty( 30 ) days from the date the Construction Manager's invoice is received by the Owner. Amounts unpaid after the date on which payment is due shall bear interest at the rate entered below, or in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located. per annum Fixed Fee of 5.5 % of the cost of the work. PAGE 11 § 5.1.1 For the Construction Manager's performance of the Work as dese.a.ea in See4en2.�, ,the Owner shall pay the Construction Manager in current funds and subject to the Guaranteed Maximum Price the Contract Sum consisting of the Cost of the Work as defined in Article H 6, the expended portion of the Construction Contin ency as defined in Section 2.2.2, and the Construction Manager's Fee determined as follows: As adjusted by any approved Change Order Notwithstanding the foregoing changes in the Scope of the Work and change orders may be permitted only in accordance with the provisions of the Contract No Construction Manager fee shall be paid on the Construction Manager's Contingency or the Owner's Contingency until funds are allocated from those contingencies to the Cost of the Work All reimbursement for profit; indirect costs,• all telephone bills for all personnel; all facsimile charges,• home office personnel and benefits assigned to the Project,• home office overhead and expenses; home office personnel relocation; all home office accounting audit legal and data processing fees and expenses: and all travel, meals and lodging shall be deemed to be included in the Construction Manager's fee For Owner's approved changes in the Scope of the Work resulting in an increase or decrease in each Guaranteed Maximum Price, the Construction Manager shall receive and increase or decrease in fee General Condition Cost and Reimbursed items as submitted to City in " step 2" Proposal § 5.2.1 The sufn of the Cest of the Wer4 Guaranteed Maximum Price for the Project shall be added to this Agreement by the execution of Amendment No l as approved by Owner's City Council which Amendment No 1 shall thereafter be incgMorated into this Agreement for all purposes The sum of the Cost of the Work, General Conditions of the Contract, and the Construction Manager's Fee are guaranteed by the Construction Manager not to exceed the amount provided in Amendment No. 1 ("Guaranteed Maximum Price"), as approved by Owner's City Council subject to any additions and deductions approved by Owner's City_ Council, due to Owner's City Council -approved changes in the Work as provided in the Contract Doetiments. documents. Such maximum sum as adjusted by approved changes in the Work is referred to in the Contract Documents as the Guaranteed Maximum Price. Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Construction Manager without reimbursement 1��y the^wn,e-r- Additions and Deletions Report for AIA Document A121 TmCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) (paragraphs deleted) By the Owner. Should the Construction Manager complete the Project for less than the Guaranteed Maximum Price, the remaining funds shall be credited to the Owner as a deduction from the Guaranteed Maximum Price. Construction Manager shall also return to the Owner all unused funds from any Contingency account as a deduction from the Guaranteed Maximum Price. The Construction Manager shall not participate in any savings. All savings shall be credited to Owner. It is the intent of the parties that if the Cost of the Work plus the Construction Manager's fee is less than the Guaranteed Maximum Price, as it may be adjusted by approved Change Orders, the entire amount of the savings shall be returned to Owner. § 5.3.1 Adjustments to the Guaranteed Maximum Price shall be calculated in accordance with Article 7 of the General Conditions of the Contract, as amended. Adjustments to the Guaranteed Maximum Price shall only be considered on account of Owner -approved changes in the Work subsequent to the execution of Amendment No. 4- Faay be determined by any of the Foetheds1isted Seetion 7.3.3 of A201 Tm O97..1; provided, however, that no adjustment to the Guaranteed Maximum Price shall become effective unless approved by the Owner. PAGE 12 § 6.1.1 The term "Cost of the Work" shall mean direct, actual, and verifiable costs reasonably and necessarily incurred by the Construction Manager in the proper performance of the Werk—.Work as described in this Article 6. Such costs shall be rates not higher than those customarily paid at the place of the Project except with prior written consent of the Owner. The Cost of the Work shall include only the items set forth in this Article b:6 — General Conditions. .1 Wages of construction workers directly employed by the Construction Manager to peFf9F+H the performing on -site work, or with the Owner's prior written agreement, performing same at off -site workshops if authorized by Owner through the competitive proposal process. .2 Wages That portion of the wages or salaries of the Construction Manager's supervisory and administrative personnel when stationed at the site with the Owner's agfeement-written approval, but only when directly involved in the Project. .3 Wages and salaries of the Construction Manager's supervisory or administrative personnel engaged, at factories, workshops or on the road, in expediting the production or transportation of materials or equipment required for the Work, but only for that portion of their time ' ectly attributed to and required for the Work, and only as approved by the Owner.. .4 Costs paid or incurred by the Construction Manager for employment -related taxes, insurance, contributions, assessments and benefits required by law or collective bargaining agreements, and, for personnel not covered by such agreements, customary benefits such as sick leave, medical and health benefits, holidays, vacations and pensions, provided that such costs are based on wages and salaries included in the Cost of the Work under Sections 6.1.2.1 through 6.1.2.3. Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the subcontracts. Any Subcontract Work to be performed by the Construction Manager's own forces on the basis of a bid or proposal submitted by the Construction Manager per Article 2 3 Z 1 as amended shall be treated as Work performed by a subcontractor under Article 6.1.3. the Construction Manager's compensation for such Subcontract Work performed shall be based on the amount of the bid or proposal submitted by the Construction Manager for such Work, rather than "actual costs" as provided elsewhere in Article 6 of this Agreement Costs paid to the Construction Manager for such Work shall be treated only as "subcontract costs" for purposes of computing the allowable cost and fees payable to the Construction Manager. Additions and Deletions Report for AIA Document A121 TmCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and 1 International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4293007293) Costs of materials described in the preceding Section 6.1.4.1 in excess of those actually installed but required to provide reasonable allowance for waste and for spoilage. Unused excess materials, if any, shall be handed the Owner's property at the completion of the Work or, at the Owner's option, shall be sold by the Construction Manager; amounts realized, if any, from such sales shall be credited to the Owner as a deduction from the Cost of the Werk-.Work and the Guaranteed Maximum Price. PAGE 13 Costs, including transportation, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, machinery, equipment, and hand tools not customarily owned by the construction workers, which are provided by the Construction Manager at the site and fully consumed in the performance of the Work; and cost less salvage value on such items if not fully consumed, whether sold to others or retained by the Construction Manager. Cost for items previously used by the Construction Manager shall mean fair market value —value with respect to each subcontract agreement throughout the Scope and Rental charges for temporary facilities, machinery, equipment and hand tools not included in 5.1.l and not customarily owned by the Construction Manager or construction workers, which are provided by the Construction Manager at the site, whether rented F. ern the G n Manager ef others, a pro .,f to sportation installation,a 1 r d t d Y-erneval th F Y Y Rates site. Rates, terms of rental and quantities of equipment rented shall be consistent with current area rates and fees, and be subject to the Owner's prior appre* A written responsibility for such rental chimes. .4 Repfedue6eri eests, eests of telegninns, postage and &*press delivery ekffges telephone p t site a r-easeriable pe4y eashe*peftses F > .art 44807 S That per6en of the bl t 1 arid t tenee e*penses e f the r _ _ Manager' - el ed ..,L, a el: e of dutiesr ,1 idi 1, )I7 1 .=" "g ' d ,.1,.. fgReasonable, necessary and actual reproduction costs and postage and express delivery charges at the site office That portion directly attributable to this Contract of the actual cost of premiums for insurance and bonds at rates set by the state re latpU authority. Fees of testing laboratories for tests required by the Contract ;TDocuments and paid by the Construction Manager, except those related to nonconforming Work other than that for which payment is permitted by Section 6.1.8.2. Other actual, direct, and verifiable costs reasonably and necessarily ncurred in the performance of the Work if and to the extent approved in advance in writing by the Owner Owner and only if not excluded under Section 6.2. PAGE 14 The Cost of the Work shall also include actual costs described in Section 6.1.1 which are reasonably and necessarily incurred by the Construction Manager: Additions and Deletions Report for AIA Document A121 TMCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and 11 International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) .1 In taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of persons and property, as provided in Section 10.6 of A201 TM'�„f the General Conditions of the Contract, to the extent practicable and not resulting from the negligence of the Construction Manager. The Construction Manager will obtain the Owner's prior approval before incurring such expenses. .2 In repairing or correcting damaged or nonconforming Work executed by the Construction Manager or the Construction Manager's Subcontractors or suppliers, provided that such damaged or nonconforming Work was not caused the Owner- set fofth in this by or contributed to by the negligence or failure of the Construction Manager or the Construction Manager's foremen, engineers or superintendents, or other supervisory, administrative or managerial personnel of the Gonstpaotien Alanage_ to fulfill a specific responsibility to the Owner set forth in this Agreement, or the failure of the Construction Manager's personnel to supervise adequately the Work of the Subcontractors or suppl e-s, and , my to the extent that the eest-suppliers: and further provided that such costs of repair or correction is not recoverable by the Construction Manager . after exhausting all attempts to obtain same from insurance Subcontractors suppliers or bonding companies § 6.1.9 The costs described in Sections 6.1.1 through 6.1.8 shall be included in the Cost of the Work notwithstanding any provision of AIA e; A201IM 9-7-the General Conditions of the Contract or other Conditions of the Contract which may require the Construction Manager to pay such costs, unless such costs are excluded by the provisions of Section 6-=6.2 or other provisions of or amendments to this Agreement .6 E*eept ", fe,-ided in, Seeetion t a r r• �., Y=�-14 osts due to the negligence of the Construction Manager or to the failure of the Construction Manger to fulfill a specific responsibility to the Owner set forth in this Agreement. .9 Costs which would cause the Guaranteed Maximum Price to be exceeded. .10 Delay damages or claims, including any material price increases during each respective subcontract agreement. .11 Storage costs unless with prior written Owner approval .12 Taxes on any goods or services if Owner has provided Construction Manager with its tax exemption certificate. § 6.3.1 Cash discotints obtained on payffients made bY the Gafisti-Hc4iell Manager- shall aeefue to the Owner- if (1) befefe ffia6ag the payment; the Gansti-aetion Manager- ineladed them in an Appheation for- Pa)qlient and r-eeeived pa�qNent ther-efer- fi;efn the Owner-, ef (2) the Ownef has deposited fiands with the Gensti-aetieR Manager- vvi4i wh" 1n make pa)gnenta• egaef%49e, eash disesiants ha4l to the ! """"'e Manager —Construction Manager shall take advantage of all available discounts rebates and refunds for supplies materials and equipment connected with the Work and which conform to the Contract Documents which discounts rebates and refunds shall accrue to the benefit of the Owner. Cash discounts available to the Construction Manager shall accrue to the Owner. Trade discounts, rebates, refunds and amounts received from sales of surplus materials and equipment shall accrue to the Owner, and the Construction Manager shall make provisions so that they can be secured. PAGE15 § 6.4.1 The Construction Manager shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Contract; the accounting and control systems shall be satisfactory to the Owner. The Owner and the Owner's accountants or other representative shall be afforded access to the Construction Manager's records, books, correspondence, instructions, drawings, receipts, subcontracts, purchase orders, vouchers, memoranda and other data relating to this Project, and the Construction Manager shall Additions and Deletions Report for AIA Document At 21 TmCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and 2 International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01/2008 under Order No.1000375455_1 which expires on 10/2012009, and is not for resale. User Notes: (4283007293) preserve these for a period of twelve years after final payment, or for such longer period as may be required by lalaw, including_any record retention laws applicable t the Owner. § 7.1.1 Based upon Applications for Payment properlysubmitted to the Architect by the Construction Manager and Certificates for Payment issued by the Architect, the Owner shall make progress payments on account of the Contract Sum to the Construction Manager as provided below and elsewhere in the Contract Documents. § 7.1.3 The Construction Manager's invoice or Application for Payment must be presented to the Architect for approval prior to presentation to the Owner. Within seven days of receipt of construction Manager's invoice the Architect shall make a recommendation to the Owner regarding payment In making such recommendation the Architect shall specifically state the basis for such recommendation and the specific amount required to be withheld to protect the Owner's interest. Provided an Application for Payment is received and certified by the Architect not later than the first 15` day of a month, the Owner shall make payment to the Construction Manager notlater than the day-e€theffle undisputed amounts within thirty (30) days of receipt of the certified Application for Payment by Owner. If an Application for Payment is received by the Architect after the application date fixed above, payment of the undisputed amounts shall be made by the Owner not later than ( ` days .,fto_ the A ehitee the A..A,:eati n fe kayR fA twenty-five (25) days after the Architect receives and certifies the Application for Payment except that no payment shall be considered not paid when due or overdue except in accordance with Texas Government Code Section 2251.021. § 7.1.4 With each Application for Payment, the Construction Manager shall submit payrolls, petty cash accounts, receipted invoices or invoices with check vouchers attached and any other evidence required by the Owner or Architect to demonstrate that cash disbursements already made by the Construction Manager on account of the Cost of the Work equal or exceed (1) progress payments already received by the Construction Manager; less (2) retainage; less (3) that portion of those payments attributable to the Construction Manager's Fee; plus 4A41 payrolls for the period covered by the present Application for Payment. Each Application for Payment shall also include a list, with backup data. of how each payment shall be spent including a list detailing which subcontractors and suppliers will be paid out of funds paid by the Owner and the amount of such payments to subcontractors and suppliers and in the next payment cycle proof of each payment to Construction Manager's subcontractors and suppliers after payment. § 7.1.6 Applications for Payment shall show the percentage completion of each portion of the Work as of the end of the period covered by the Application for Payment. The percentage completion shall be the 4) the percentage of that portion of the Work which has actually been (a) the expense which has � ..nsti.. etion Manager- r t peftion of »� ti t� /` Wer4 for- whieh the Genstmetien Managef has made or- intends te make aePd.4 pa)4aent prior- to the next Appheation of values. -completed. PAGE 16 Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule ofvalides. Pending ineluded as provided in Seetion 7.3.8 of kwj— 1997, even though the GuaFanteed Maximum Pr-iee has net ye, been adjusted byChangeOrd values, as the Guaranteed Maximum Price is adjusted for Owner -approved Change Orders and as authorized by the Architect Additions and Deletions Report for AIA Document A121 TMCMc — 2003 and AGC Document 565. Copyright© 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and 13 International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01/2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) .3 Add the Construction Manager's Fee, less retainage of ' `. Fee. The Construction Manager's Fee shall be computed upon the Cost of the Work described in the two preceding Sections at the rate stated in Section 5.1.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Section, shall be an amount which bears the same ratio to that fixed -sum Fee as the Cost of the Work in the two preceding Sections bears to a reasonable estimate of the probable Cost of the Work upon its completion. .5 Subtract the shortfall, if any, indicated by the Construction Manager in the documentation required by Section 7.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the Owner's accountants or other representatives in such documentation. .6 Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Section 9.5 of A-201 T"'�„f the General Conditions of the Contract. .7 Subtract retainape of five percent (5%) of the remaining amount of the progress pant § 7.1.8 Except with the Owner's prior approval, payments to Subcontractors shall be subject to retention of not less than ( .five (5) percent.. The Owner and the Construction Manager shall agree upon a mutually acceptable procedure for review and approval of payments and retention for subcontracts. § 7.1.9 Except with the Owner's prior written approval, the Construction Manager shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. § 7.1.10 in taking action y submitting the Construction Manager's Applications for Payment data, the Construction Manager is certif lg that the information presented is true correct accurate and complete; that he has made the necessary detailed examinations, audits and arithmetic verifications; that the submitted Work has been completed to the extent represented in the Applications for Payment that the materials and supplies identified in the Applications for Payment have been purchased, paid for and received-, that the subcontractors have been paid as identified in the Applications for Payment; and that he bas made the necessary on -site inspections to confirm the accurac off the Applications for Payment; that there are no known mechanic's or materialmen's liens outstanding at the date of requisition; that all due and payable bills with respect to the Work have been paid to date or are included in the amount requested in the current application; that except for such bills not paid but so included there is no known basis for the filing of mechanic's or materialmen's liens; and that releases from all subcontractors and materialmen have been obtained in such form as to constitute an effective release of lien under the laws of the State of Texas causing all Work performed and for which payment has been made by the Owner to the Contractor. In certifying the Construction Manager's Application for Payment the Architect represents that he has observed the progress of the Work, critically evaluated, reviewed and certified that the amounts requested are valid and correct The issuance of a certificate for payment shall not be a representation by the Architect that the Architect has made exhaustive or continuous on -site inspections or that the Architect has made examinations to ascertain how or for what purposes the Construction Manager has used amounts previously paid on account of the Contract. Such examinations, audits and verifications, if required by the Owner, will be performed by the Owner's accountants or other representatives of the Owner acting in the sole interest of the Owner. § 7.2.1 PifW payment sha4l be made As a condition precedent to the Owner's obligation to make all of the requirements of Sections 3.5.5 3.5.8 9 8 2 9.10.7.2, and 10 8 1 of the General Conditions of the Contract shall have been met and the following must have occurred Final payment for the Work by the Owner to the Construction Manage_ when ._, u Ge=x-�Manager, (l) the Work, and the Contract have been fully performed by the Construction Manager exeept fer-including the Construction Manager's responsibility to correct nonconforming Work, as previded in Seetien 12 2 2 of A2()1 Tm 4 °�,97-,-m a except for the Construction Manager's responsibility to satisfy other requirements, if any, which Owner agrees in writingnecessarily survive final payment; (2) a final Application for Payment and a final accounting for the Cost of the Work have been submitted and certified by the Construction Manager and reviewed by the Owner's accountants or other representatives (3) a Additions and Deletions Report for AIA Document A121 TmCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and 14 International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01/2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) final Certificate for Payment has then been issued by the Architect; sir{4) Contractor certifies that the Project has been constructed in compliance with the Architect's or Engineer's plans specifications and Construction Documents by completing the Texas Accessibility Standards (TAS) and the completion of the Field Inspection Compliance items; and (5) Owner has voted to accept the Work and approve Final Payment. Such final payment shall be made by the Owner not more than 30 days after the issuanee of the A _ehi eel's final Gef6fieate fer- Payment; feflewsi Owner approval. If Final Payment is withheld, the amount withheld shall not be greater than the amount of work remaining to be performed or the amount of correction of nonconforming work. PAGE 17 .2 Subtract amounts, if any, for which the Architect withholds, in hele er- in Y ;i4 a final Deft-,-afiea e for- Ra59:Hefit asprevided in Seetienl9.5 1 of A2011m 4997 ' ether- f the Gentfae 1 e�or Owner disputes refuses or withholds payment including liquidated damages if any. § 7.2.3 The Owner's accountants or other representatives will review and report in writing on the Construction Manager's final accounting within 30 days after delivery of the final accounting to the Architect by the Construction Manager. Based upon such Cost of the Work as the Owner's accountants or other representatives report to be substantiated by the Construction Manager's final accounting, and provided the other conditions of Section 7.2.1 have been met, the Architect will, within seven days after receipt of the written report of the Owner's aeeetffltants, accountants or other representatives, either issue to the Owner a final Certificate for Payment with a copy to the Construction Manager or notify the Construction Manager and Owner in writing of the Architect's reasons for withholding a certificate as provided in Section 9.5.1 of A201 nL499rthe General Conditions of the Contract. The time periods stated in this Section 7.2 supersede those stated in Section 9.4.1 of A201 TM 17 97.of the General Conditions of the Contract.. § 7.2.4 If the Owner's accountants or other representatives report the Cost of the Work as substantiated by the Construction Manager's final accounting to be less than claimed by the Construction Manager, the Construction Manager shall be entitled to proceed in accordance with Article 9 without a further decision of the Architect. Unless agreed to otherwise, a demand for mediation, or other dispute resolution as provided in the Contract Documents, of the disputed amount shall be made by the Construction Manager within b9-dirty (30) days after the Construction Manager's receipt of a copy of the Architect's final Certificate for Payment. Failure to make such demand within this €9 day thirty (30)-day period shall result in the substantiated amount reported by the Owner's accountants becoming binding on the Construction Manager. Pending a final resolution of the disputed amount, the Owner shall pay the Construction Manager the amount certified in the Architect's final Certificate for Payment. § 7.2.5 If, subsequent to final payment and at the Owner's prior written request, the Construction Manager incurs costs described in Section 6.1 and not excluded by Section 6.2 (1) to correct nonconforming Work that is not the fault of the Construction Manager, or (2) arising from the resolution of disputes, the Owner shall reimburse the Construction Manager such costs and the Construction Manager's Fee, if any, related thereto on the same basis as if such costs had been incurred prior to final payment, but not in excess of the Guaranteed Maximum Price. If the Construction Manager has participated in savings, the amount of such savings shall be recalculated and appropriate credit given to the Owner in determining the net amount to be paid by the Owner to the Construction Manager. During both phases of the Project, the Construction Manager shall purchase and maintain insurance as mix Seetien 11.1 e€A201T"'-1O°swill protect the construction Manager, the Owner, the Owner's ai;ents trustees representatives, servants, employees and officers set forth in this Article and in Article 11 of the General Conditions of the Contract, which may arise out of claims as set forth below, and which may arise out of or result from the Construction Manager's operations under this Contract whether such operations be by Construction Manager, or by any subcontractor or by anyone directly or indirectly employed by any of them or by nyone for whose acts any of them may be liable Except as to Workers' Compensation insurance Owner shall be listed as an additional insured, and said insurance shall be primary as to the owner. All identified insurance coverages shall have a waiver of subrogation in favor of Owner. Said insurance shall be in companies acceptable to Owner, and Additions and Deletions Report for AIA Document A121 TmCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and 15 International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01/2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) which are authorized to do business in Texas with an A.M. Best Rating of "A" or better. The Construction Manager shall provide the Owner with certificates endorsements and conies of policies evidencing the coverage for all insurance rMuired by Article 11 of the General Conditions of the Contract and this Article as amended prior to the start of the Work. Such insurance shall be written for not less than the following limits, or greater if required by law: § 8.1.1 Workers' Compensation and Employers' Liability Insurance meeting statutory limits mandated by state and federal laws. to be `l J afeprovided, (2) the employer- statuteFA an'".M.t sueh insufanee shaH f " Because Construction Manager will be performing on -site services and observations, a copy of a certificate of insurance a certificate of authority to self -insure issued by the Texas Worker's Compensation Commission or a coverau aapreement (T'WCC-81 TWCC-82 TWCC-83 or TWCC-84) showing statutory workers' compensation insurance coverage for the Construction Manager or his employees providing services on the Project is required for the duration of the Project .1 Duration of the Project includes the time from the beginning of the work on the Project until the Construction Manager's work on the Project has been completed and accepted by the Owner. .2 Persons providing services on the Project include all persons or entities performing all or part of the services the Construction Manager has undertaken to perform on the Project regardless of whether that person contracted directly with the Construction Manager 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 that furnishes persons to provide services on the Project .3 Services include without limitation providing hauling or delivering equipment or materials or activities unrelated to the Project, such as food/beverage vendors office supply deliveries and delivery of portable toilets. .4 The Construction Manager 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 401.011 (44) for all employees of the Construction Manager providing services on the Project for the duration of the Project .5 The construction Manager must provide a certificate of coverage to the Owner prior to being awarded the contract. .6 If the coverage period shown on the Construction Manager's current certificate of coverage ends during the duration of the Project the Construction Manager must prior to the end of the coverage period, file a new certificate of coverage with the Owner showing that coverage has been extended. .7 The Construction manager shall obtain from each person providing services on the Project and provide to the Owner: 1 A certificate of coverage prior to that person be inning work on the Project so Owner will have on file certificates of coverage showing coverage for all persons providing services on the Project: and .2 No later than seven days after receipt by the Construction Manager, 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 The Construction Manager shall retain all required certificates of coverage for the duration of the Project and for one year thereafter. Additions and Deletions Report for AIA Document A121 T"'CMc — 2003 and AGC Document 565. Copyright© 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and 16 International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) .9 The Construction manner shall notify Owner in writing by certified mail or Dersonal deliver within ten days after the Construction Manager knew or should have known of anchange hange that materially affects the provision of coverage of any person providing services on the Project .10 The Construction Manager shall post on each Project site a notice in the text form and manner prescribed by the Texas Worker's Compensation Commission informing aH 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 .11 The Construction Manager shall contractually require each person with whom it contracts to provide services on a project to: .1 Provide coveraee, 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 401.011 (44) for all of its employees providing services on the Project for the duration of the Project. .2 Provide to the Construction Manager, 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. .3 Provide the construction Manager, 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. .4 Obtain from each other person with whom it contracts and provide to the Construction Manager. .1 A certificate of coverage prior to the other person beginning work on the Project; and .2 A new certificate of coverage showing extension of coverage prior to the end of the coverage period, if the coverage Deriod shown on the current certificate of coverage ends during the duration of the Project. .5 Retain al required certificates of coverage on file for the duration of the Project and for one year thereafter. .6 Noiify the governmental entity in writing by certified mail or personal delivery within ten 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 .7 Contractually require each person with whom it contracts to perform as required by item 1-7, with the certificates of coverage to be provided to the person for whom they are providing services. .12 By signing this contract or providing or causing to be provided a certificate of coverage the Construction Manager is representing to the Owner that all employees of the Construction Manager who will provide services on the Project will be covered by workers' 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 carver 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 Construction Manager to administrative penalties criminal penalties civil penalties or other civil actions. Additions and Deletions Report for AIA Document A121 TM'CMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and 17 International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) .13 The Construction Manager's failure to comply with any of these provisions is a breach of contract by the Construction Manager that entitles the governmental entity to declare the contract void if the Construction Manager does not remedy the breach within ten days after receipt of notice of breach from the governmental entity. § 8.1.2 Commercial General Liability including coverage for Premises -Operations, Independent Contractors' Protective, Products -Completed Operations, Contractual Liability, Personal Injury and Broad Form Property Damage (including coverage for Explosion, Collapse and Underground hazafds)i hazards) shall be as set forth in Exhibit A to this Agreement and as may_ be further defined in Article 11 of the General Conditions of the Contract. A. GENERAL LIABILITY: 01 TYPE: Commercial General Liability, Owner's & Contractor's Protection Occurrence Basis 02 LIMITS a. GENERAL AGGREGATE: $2,000,000 b. PRODUCTS & COMPLETED OPERATIONS AGGREGATE: $1,000,000 c. PERSONAL & ADV. INJURY: $1,000,000 d. EACH OCCURRENCE: $1,000,000 e. FIRE DAMAGE (ANY ONE FIRE): $50,000 f. MEDICAL EXPENSE LIMIT (ON ANY PERSON): $5 000 B. AUTOMOBILE LIABILITY 01 TYPES: Any Auto or Owned Autos, Hired Autos Non -Owned Autos 02 LIMITS: a. COMBINED SINGLE LIMIT: (OPT.) $1,000,000 b_ BODILY INJURY (PER PERSON): $250 000 c. BODILY INJURY (PER ACCIDENT): $500,000 d. PROPERTY DAMAGE: $100,000 C. EXCESS LIABILITY: 01 TYPE: Umbrella Form including products and completed operation insurance 02 LIMITS: a. EACH OCCURRENCE: $1,000,000 b. AGGREGATE: $1,000,000 D. WORKER'S COMPENSATION AND EMPLOYER'S LIABILITY LIMITS: 01 STATUTORY LIMITS: Designated by Law 02 EACH ACCIDENT: $500,000 03 DISEASE -POLICY LMITT: $500,000 04 DISEASE -EACH EMPLOYEE: $500,000 E.OTHER: "ALL RISK" Builders Risk (Reporting Form); full insurable value of the Work 01 WINDSTORM (including hail) 0.04 OWNER'S LIABILITY INSURANCE (Separate policy, inclusion or endorsement) Same limits as Contractor's General Liability. Name the Architects and Engineering as additionally insured. 0.05 GUARANTY BONDS Additions and Deletions Report for AIA Document A121 TuCMc — 2003 and AGC Document 565. Copyright© 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and 18 International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01/2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes, (4293007293) T:h !' 1 shall 1 d a ^ge . ffie meet the ablig A c. _ etion 3.'� "�r�--997,A. Provide a "Performance Bond" and a "Labor and Material Pay.ment Bond", each in a penal sum equal to 100% of Contract Sum. Bond forms shall be compatible with provisions of governing authorities. File copies of bonds with County Clerk and present Owner with a file receipt. B. Don not commence the Work until bonds and issuing companies have been accepted as satisfactory by the Owner. C. Deliver original bonds to Owner with authorized power -of -attorney. D. Bonds shall remain in force for and until one year after Substantial Completion of the Contract § 8.1.3 Automobile Liability (owned, non -owned and hired vehicles) for bodily injury and property damage: amage shall be as set forth in Exhibit A to this Agreement and as may be further defined in Article 1 i of the General Conditions of the Contract § 8.1.4 Other coverage: Construction Manager shall include All Risk Policy with Windstorm and Hail coverage for 100% value of any structure through out the Project. Coverage shall be as set forth in Exhibit A to this Agreement and as may be further defined in Article 11 of the General Conditions of the Contract PAGE 21 Dtff4ng both phases of the Pfejec4, the Qwne+ shall pufehase and maintain liability and pr-ep" ifisufaFfee, ine1u4iffg not less than the felleA4 limits, or- gFeatef if r-eqt&ed by :In its discretion. the Owner may purchase and maintain its usual liability and property insurance to protect Owner as may cover its Property under the Umbrella policies. Owner's decision to purchase insurance shall not alter or change the primary coverage status of the insurance provided by the Construction Manager. § 8.3 PERFORMANCE BOND AND PAYMENT BOND § 8.3.1 The Eeesa%uetien Manager (Iasert "shag" of "shall "`��gonstruction Manager shall furnish payment and performance bonds covering faithful performance of the Contract and payment of ebligatiens arising thereundef. 13an 1. fffay be obtained .1 gh the `' n Ma _usual soufee—,obligation arising thereunder. Payment and performance bonds shall be in separate instruments Bonds may be obtained from an insurance companv licensed t do business in the State of Texas and for bond amounts that exceed $100 000 that hold a certificate of authority from the U.S. Secretary of the Treasury or reinsurance for liability in excess of $100 000 from a reinsures authorized and admitted as a reinsurer in the State of Texas and that is a holder of a certificate of authority from the U.S. Secretary of the Treasury to qualify as a surety or reinsurer on obligations permitted or required under federal law and the cost thereof shall be included in the Cost of the Work. The amount of each bond shall be equal to ( ) ofthe Coatm -the Guaranteed Maximum Price. If a fixed contract amount or Guaranteed Maximum Price has not vet been determine at the time this Contract is awarded then the penal sums of the payment and performance bonds delivered to the Owner must each be in an amount equal to the project budget as specified in the Request for Proposal or Qualifications The Construction Manager shall deliver the bonds no later than the tenth (10'') day after the date the Construction Manager executes the Contract unless the Construction Manager furnishes a bid bond or other financial security acceptable to the Owner to ensure that the Construction Manager will furnish the required payment and performance bonds when a Guaranteed Maximum Price is established. Additions and Deletions Report for AIA Document A121 TMCNIc — 2003 and AGC Document 565. Copyright© 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and 19 International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) § 8.3.2 The Construction Manager shall deliver the required bonds to the Owner at least tree Sys -one week before the commencement of any Work at the Project site. § 8.3.3 All Payment and Performance Bonds provided by Construction Manager or any subcontractor shall comply with the requirements of Article 7.19-1 of the Texas Insurance Code. All bonds will be reviewed by the Architect for compliance with the Contract Documents prior to execution of the Contract. In the event that the Architect has any questions concerning the sufficiency of the bonds, the bonds will be referred to the Owner or the Owner's representative for review and decision. § 8.3.4 All bonds shall be originals. The Construction Manager shall require the attorney -in -fact who executes the required bonds on behalf of the surety to affix thereto a certified and current copy of the Power -of —Attorney. The name address and telephone number of a contact person for the bonding company shall be provided. § 8.3.5 Prior to the commencement of the Work, the construction Manager shall promptly furnish a cop of f the bonds, and/or shall permit a copy to be made. § 8.3.6 Bonds shall be signed by an agent resident in the State of Texas and the date of the bond shall be the date of execution of the contract. If at any time during the continuance of the Contract the surety of the Construction Manager's bonds becomes insufficient, Owner shall have the right to require additional and sufficient sureties which the Construction Manager shall furnish to the satisfaction of the Owner within ten (10) business days after notice to do so. In default thereof, the Construction Manager may be suspended and all payment or money due to the Construction Manager withheld until sufficient bonds are provided by the Construction Manager. PAGE 22 § 9.1.1 During both the Preconstruction and Construction Phases, Claims, disputes or other matters in question between the parties to this Agreement shall be resolved as provided in Seet€efts 4.� tlfe>3gh 4.6 of A2911m 4997 Article 4 of the General Conditions of the Contract, except that, during the Preconstruction Phase, no decision by the Architect shall be a condition precedent to mediation, litigation, or other means of dispute resolution. § 9.2.1 Unless otherwise noted, the terms including capitalized terms used in this Agreement shall have the same meaning as those in A2011"'— 1997, the General Conditions of the ontract. This Contract, which includes this Agreement and the other documents incorporated herein by reference, represents the entire and integrated agreement between the Owner and the Construction Manager and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both the Owner and Construction Manager. If anything in any document incorporated into this Agreement is inconsistent with this Agreement, this Agreement shall govern If any portion of this Agreement is determined to be invalid, unenforceable or void then that portion shall be severed and all other portions of this Agreement shall remain in full force and effect Article 1.6 of 201Im— 'W9- the General Conditions of the Contract shall apply to both the Preconstruction and Construction Phases. The Contract shall be governed b the law of he place where the P t ' leeated and construed in accordance g Y - r-�__ .. ��. �� with the law of the State of Texas, and mandatory and exclusive venue for any dispute shall be in state district court in the county in which the Owner's main administrative office is located As a material consideration of the making_ of this Contract, the modifications to this Contract shall not be construed against the maker of said modifications Additions and Deletions Report for AIA Document A121 TmCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and 20 International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) The -Once this contract is accepted and signed by Owner, the Owner and Construction Manager respectively bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents. Except as pFe Aded in Section 13.2.2e€ A.204 TM'—�; may be provided in the General Conditions of the Contract neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. § 10.1.1 Prior to execution by both parties of Amendment No. 1 establishing the Guaranteed Maximum Price, the Owner may terminate this Contract at any time without cause, and the Construction Manager may terminate this Contract for any of the reasons described in Section 4 4.1.1 e€ A201 T"'�.:14.1.1, 14.1.2, and 14.1.4 of the General Conditions of the Contract.. § 10.1.2 If the Owner or Construction Manager terminates this Contract pursuant to this Section 10.1 prior to commencement of the Construction Phase, the Construction Manager shall be equitably eempensated fe eeHTeasatieiif"' e v shallnote eed the e, fefth in c ^ ' ' not be compensated for any Preconstruction Phase Services performed. PAGE 23 Subsequent to execution by both parties of Amendment No. 1, the Contract may be terminated as provided in Article 14 of A201 nL4O9-7-.the General Conditions of the Contract. § 10.2.1 Seetion 14.1.3 of A-201114 1997 shaH not e*eeed the afneunt the Genswaetieft Manager- would have been ewided to Except for a termination by the Owner for cause or PA - based on default or bankruptcy on the part of the Construction Manager, if the Owner or Construction Manager terminates this Contract pursuant to this Section 10.1 after commencement of the Construction Phase the Construction Manager shall be paid an amount calculated as follows: .1 Take the Cost of the Work actually and necessarily incurred by the Construction manager. .2 Add the Construction Manager's Fee computed upon the Cost of the Work to the date of termination at the rate stated in Section 5.1 or, if the Construction Manager's Fee is stated as a fixed sum in that Section, an amount which bears the same ratio to that fixed -sum Fee as the Cost of the Work at the time of termination bears to a reasonable estimate of the probable Cost of the Work upon its completion. .3 Subtract the aggregate of previous payments made by the Owner on account of the Construction Phase. The Owner shall also pay the Construction manager fair compensation either by purchase or rental at the election of the Owner, for any equipment owned by the Construction Manager which the Owner elects to retain and which is not otherwise included in the Cost of the Work under Section 10 1.3. 1 To the extent that the Owner elects to take legal assignment of subcontracts and purchase orders (including rental agreements) the Construction Manager shall as a condition of receiving the payments referred to in this Article 10 execute and deliver all such papers and take all such steps, including the legal assignment of such subcontracts and other contractual rights of the Construction Manager, as the Owner may require for the purpose of fully vesting in the Owner the rights and benefits of the Construction Manager under such subcontracts or purchase orders Subcontracts, purchase orders and rental agreements entered into by the Construction Manager with the Owner's written approval prior to the execution of Amendment No 1 shall contain provisions permitting assignment to the Owner as described above. If the Owner elects not to accept the assignment of any subcontract purchase order or rental agreement which would have constituted a Cost of the Work had this agreement not been terminated the Construction Manager shall terminate such subcontract purchase order or rental agreement Additions and Deletions Report for AIA Document A121 TMCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and 21 International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) PAGE 24 The Work may be suspended by the Owner as provided in Article 14 of A201 T'd—1997 ; the General Conditions of the Contract: in such case, the Guaranteed Maximum Price, if established, shall -maybe increased as provided in Section 14.3.2 of the General Conditions of the Contract. § 11.1 Notwithstanding anything to the contrary in this Agreement or in any document forming a part hereof, there shall be no mandatory arbitration for any dispute arising hereunder, § 11.2 The Construction Documents prepared by the Architect, and copies thereof furnished to the Contractor, are for use solely with respect to this Project. They are not to be used by the Contractor Subcontractors Sub - subcontractors or suppliers on other projects or for additions to this Project outside the scone of the Work without the specific written consent of the Owner or the Architect as appropriate The Contractor Subcontractors Sub - subcontractors and suppliers are granted a limited license to use and reproduce applicable portions of the Drawing Specifications and other documents prepared by the Architect appropriate to and for use in the execution of their Work under the Contract Documents. § 11.3 Upon Final Completion, Contractor shall certify that the Project has been constructed in compliance with the Architect's or Engineer's plans, specifications, and construction documents § 11.4 Contractor shall require all construction workers whether Contractor's own forces or the forces of Contractor's subcontractors, to wear identification tags on the front of their persons during all times that they are on Owner's property. Such identification tags shall have identification of the construction worker by number or other identifying medium in a typeface large enough to be seen from eight feet away. § 11.5 Contractor shall require all construction workers whether Contractor's own forces or the forces of contractor's subcontractors to park their personal motor vehicles on Owner's property only in the parking place designated by the Owner's campus principal Any vehicles not parked in the appropriate locations shall be towed at the vehicle owner's sole expense. § 11.6 Contractor shall follow, and shall require all employees agents or subcontractors to follow, the tree ordinance of the municipality in which the Project is located. In addition if not covered by the municipal tree ordinance Contractor shall barricade and protect all trees on the Project which shall be included in the Cost of the Work § 11.7 Contractor shall require all construction workers whether contractor's own forces or the forces of Contractor's subcontractors, while on Owner's property to refrain from the use of tobacco products drinking alcoholic beverages carrying weapons speaking profane and/or offensive language or engagingin any interactions of any nature whatsoever with students and teachers including talking touching staring or otherwise contributing to a_hostile or offensive environment for Owner's students and staff. All areas of campus other than the defined construction area, shall be off limits to Contractor's forces unless their work assignment specifies otherwise Failure of an individual to adhere to these standards of conduct shall result in the immediate termination of the employment of the offending employee from all construction on any of Owner's property. Rpeated termination of Contractor's or Contractor's subcontractor's forces or one serious infraction can resulting the immediate termination of this Agreement by Owner. § 11.8 Contractor shall institute a theft deterrent program designed to restrict construction worker access to properties of Owner that are currently in use to maintain supervision of Contractor's and Contractor's subcontractor's forces, and to reimburse those suffering a theft loss which results from Contractor's forces or Contractor's subcontractor's forces as charged and determined by the local authorities having jurisdiction Additions and Deletions Report for AIA Document A121 TuCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and 22 International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4293007293) § 11.9 Contractor shall provide Owner with one sepia set and one electronic copy of final marked -up "as built" drawings of each job site in the Project. § 11.10 All sums due hereunder are payable in La Porte, Harris County Texas. 11.11 This Agreement, in its entirety, shall be binding upon all the parties hereto their respective successors heirs executors, administrators or assigns. § 11.12 Execution of this Agreement shall constitute approval and acceptance of all terms covenants and conditions as modified and contained in the Contract Documents. § 11.13 By signing this Agreement, the undersigned certifies as follows: "Under Section 231.006, Texas Family Code, the vendor or applicant certifies that the individual or business entity named in the contract bid or application is not ineligible to receive the specified grant, loan or payment and acknowledges that this contract may be terminated and payment may be withheld if this certification is inaccurate. 411.14 Enumeration of Parts of the Agreement This Agreement represents the entire and integrated agreement between the Owner and the Contractor and supersedes Aprior negotiations representations or agreements either written or oral. This Agreement may be amended only by written instruction signed by both Owner and Contractor. Any revision, amendment or modification to the Standard Form of this Agreement shall be valid binding and enforceable only if said revision, amendment or modification is made conspicuous by being underlined lined - through, or highlighted in this Agreement signed by Contractor and Owner. This Agreement comprises the documents listed below. § 11.15 Even if the Work is otherwise in compliance with the Schedule Owner may, at any time unilaterally direct Construction Manager to accelerate the Work, by among other things establishing additional shifts pa ing or authorizing overtime or providing additional equipment In this event Owner's sole liability to construction Manager shall be to pay any shift differential premium or overtime payments to workers of field supervisors actually incur over and above Construction manager's normal times amounts to account for lost efficiency of worker's, and overtime charges for equipment. Any adjustment to the Guaranteed Maximum Price must be approved by Owner in the manner provided in the Contract. Mr. Ron Bottoms, City Manager Additions and Deletions Report for AIA Document A121 TMCMc — 2003 and AGC Document 565. Copyright © 1991 and 2003 by The American Institute of Architects and The Associated General Contractors of America. All rights reserved. WARNING: This document is protected by U.S. Copyright Law and 23 International Treaties. Unauthorized reproduction or distribution of this document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 16:02:34 on 12/01 /2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (4283007293) Certification of Document's Authenticity AIA@ Document D401"m — 2003 1. Robert A. Randall, hereby certify, to the best of my knowledge, information and belief, that I created the attached final document simultaneously with its associated Additions and Deletions Report and this certification at 16:02:34 on 12/010-008 under Order No. 10003754551 from AIA Contract Documents software and that in preparing the attached final document I made no changes to the original text of AIA"Document A 121 T'-'ICMc - 2003 and AGC Document 565 - Standard Form of Agreement Between Owner and Construction Manager where the Construction Manager is Also the Constructor, as published by the AIA in its software, other than those additions and deletions shown in the, . iate( d Additions and Deletions Report. A (Signed) I'Llated) AIA Document D401 'v — 2W3. Copyright 0 IM and 210113 by The American Institute of Architects. All rights reserved. WARNING: This AW Document is protected by US. Copyright Law and International Treahes. Unauthorized reproduction or distribution of this AW Document, or any portion of it. may result in severe civil an* crim.-ri* pe"t" and wIll be PrOSOCUIV-d 10 the Maxtimum extent possible under the law. This document was produced by AIA sothware at 16.,02;3t on I2f0I,*2008 under Order No. 10003754551 which expires on 10/20,2009, and is not for resale User Notes: t4283DO7293i § 119 Contactor shall provide Owner with see sepia set and one electronic copy of final markod-up "as built" drawings of each job site in the Project § 11.10 All sums due hereunder arc payable is IA Pone, Hans County, Tutus. § 11.11 This Agreement, in its entirety, shad be binding upon all the parties hereto, their respective snemsors, heirs, cxocx mm administrators or assigns, § 11.12 Execution of this Agreement shall constitute approval and acceptance of all terms. Covenants and conditions as modified and contained in the Contract Documents. j K13 By signing this Agreement, the undersigned certifies As follows: "Under Section 231.W6. Texas Family Cade, the vendor or applicant certifies that the individual or business entity named in the contract, bid, or application a not ineligible to reraLv the specified grant, loan, or payment and addtowiedges that this contract tray be terminated and payinew may be withheld if this ratification is inaccurate. § 11.1t POmtmiau of Parts of the Agmemerx. This Agcenmett represents the entire and integrated agreement between the Owner and the Contractor and supersedes all prior negotin6ons, representations or agreements, either written or oral. This Agreement may be amended only by writes instruction signed by both Owner and Contractor. Any revision, amendment or modification to the Standard Form of this Agreement shall be valid, binding, and enforceable only if said revision, amendment or modification is made conspicuous by bang underlined, lived - through, or bighlighted in tbis Agreement signed by Contractor and Owner. This Agreement comprises the docurricnts listed below. § 1115 Even if the Watt is otherwise in compliaxe with the Schedule_ Owner may, at any him unilaterally direct Construction Manager to soceleaam the Work, by axon other things, establishing additional shifts, paying or authorizing overtime or providing additional a quipmem. In this event, OwDCe $ Soft: liability to C0nStractiW Manager shall be to pry any Shift diffenmtial. premium, or overtime payments to workers of field supervisors actually itieur over and above Construction managei s normal times, amounts to account for lost efficiency of worker's, and overtime charges fat equipment. Any adjustment to the Guaranteed Maximum Price mast be approved by Owner in the manner provided in the Contrast, § otwitbsamdiat any provision to the contrary. the waiver of subrogation rights under the property insurance in favor of the Architect. Arcbih=t's cti mltanrr, separate contractors described in Article 6 of the General Conditi of the Contract, if any, and any of the adxvntractors. agents atad employees Shall be limited to such parties' to ac6videx only, and shall not included my professional liability related to ernes or omissions in their design gtrteeriag This nt en as of the day and year firm written above. O CONSiRtIMN PtANA i 'ram (Slarurtnn) (Si n) �� �w . Mr. Rom i3oaor ,City Manager s}a O Ar % 7*C , (Printed mart and title) (Primed name an tide) Dab Dift ATTEST ATTEST tS►�sro teen( 4.T {O Form — i;s ri . 614 .C!j tilt NA Dmwwlt A121 wOft —end! and Ade Owum a aai Goer VM O toot wo 2= try The Amntean tnsaoaa d Ard"m and T* Aw aaWd CemmW Cataaraoa of AM*Am AS Ad1Ms swwva wAWH TbW doa. it WOMOae by tL& Copplon Law and easrnaaorw Tnatlee unaunerard sapr Wn or dbe tome of aas "CYrMnt, or air porow of k any resell 1n sevaw two one manager panattWa, and Vote as 25 l prossC64" to air W'"W"n anetam posamW andar eta tales, Title dnd~t wan predncad by AM motto o at 09MAS oA 1 tnaaods MAW Order+ N&I00037S W 1 adudt aapWw an tzJ2p ZM, and is tat to nook. User Natal: teoeoatssi: 41AIA Document A201'm —1997 General Conditions of the Contract for Construction for the foilo ing PROJECT: (Name and location or address): City of La Porte - westside Park Project 3600 Canada Road Laporte, TX 77571 THE OWNER: (Name and address): City of La Porte 1322 South Broadway LaPorte, Texas 77572 THE ARCHITECT: (Name and address): Randall -Porterfield Architects, Inc. A.I.A. 565 FM 270 North League City, Texas 77573 TABLE OF ARTICLES 1 GENERAL PROVISIONS 2 OWNER 3 CONTRACTOR 4 ADMINISTRATION OF THE CONTRACT 5 SUBCONTRACTORS 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS 7 CHANGES IN THE WORK 8 TIME 9 PAYMENTS AND COMPLETION 10 PROTECTION OF PERSONS AND PROPERTY 11 INSURANCE AND BONDS 12 UNCOVERING AND CORRECTION OF WORK 13 MISCELLANEOUS PROVISIONS 14 TERMINATION OR SUSPENSION OF THE CONTRACT ADDITIONS AND DELETIONS: The author of this document has added Information needed for Its completion. The author may also have revised the text of the original AIA standard form. An Additions and Deletions Report that notes added information as well as revisions to the standard form text is available from the author and should be reviewed. A vertical line in the left margin of this document indicates where the author has added necessary information and where the author has added to or deleted from the original AIA text. This document has important legal consequences. Consultation with an attorney is encouraged with respect to its completion or modification. This document has been approved and endorsed by The Associated General Contractors of America AIA Document A201 TM-1997. Copyright 0 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American (nit. Institute of Architects. All rights reserved. WARNING: This A10 Document Is protected by U.S. Copyright Law and International Trestles. Unauthorized reproduction or distribution of this AIA® Document, or any portion of 1% may result In severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12110/2008 under Order No.1000375455_1 which expires on 1012012009, and is not for resale. (3925236195) User Notes: INDEX (Numbers and Topics in Bold are Section Headings) Acceptance of Nonconforming Work 9.6.6, 9.9.3, 12.3 Acceptance of Work 96.6,9.8.2,99.3,9.10.1,9.103, 12..3 Access to Work 3.16, 6.2.1,12.1 Accident Prevention 4 2.3, 10 Acts and Omissions 3.2, 3.3.2, 3.12.8, 3.18, 4.2.3, 4.3.8, 4.4.1, 8.3.1, 9.5.1, 10.2.5, 13.4.2, 13.7, 14.1 Addenda 1.1.1, 3.11 Additional Costs, Claims for 4.3.4, 4.3.5, 4.3.6, 6.1.1, 10.3 Additional Inspections and Testing 9.8.3, 12.2.1,13.5 Additional Time, Claims for 4.3.4, 4.3.7, 8.32 ADMINISTR.AlTION OF THE CONTRACT 3.1.3,4,9.4,9.5 Advertisement or Invitation to Bid 1.1.1 Aesthetic Effect 4.2.13, 4.5.1 Allowances 3.8 All-risk Insurance 11.4.1.1 Applications for Payment 4.2.5, 7.3.8, 9.2, 9.3, 9A, 9-5.1, 9.6.3, 9.7.1, 9.8.5, 9.10,11.13, 14.2.4, 14A.3 Approvals 2.4, 3.1.3, 3.5, 3.10.2, 3.12, 4.2.7, 9.3.2, 13.4.2, 13.5 Arbitration 4.3.3, 4.4, 4.5.1, 4.52, 4.6, 8.3.1, 9.7.1, 11.4.9, 11.4.10 Architect 4.1 Architect, Definition of 4.1.1 Architect, Extent of Authority 2.4, 3.12.7, 4.2, 4.3.6, 4.4, 5.2, 6.3, 7.1.2, 7.3.6, 7.4, 92, 9.3.1, 9.4, 9.5, 9.83, 9.10.1, 9.10.3, 12.1, 12.2.1, 13.5.1, 13.5.2, 14.2.2, 14.2.4 Architect, Limitations of Authority and Responsibility 2.1.1, 3.3.3, 3.12.4, 3.12.8, 3.12.10, 4.1.2, 4.2.1, 4.2.2,4.2.3,4.2.6,4.2.7,42.10,4.2.12,4.2.13,4.4, 5.2.1, 7.4, 9.4.2, 9.6.4, 9.6.6 Architect's Additional Services and Expenses 2.4, 11.4.1.1, 12.2.1, 13.5.2, 13.5.3, 142.4 Architect's Administration of the Contract 3.1.3 7 4.2, 4.3.4, 4.4, 9.4,9.5 Architect's Approvals 2.4, 3.1.3, 3.5.1, 3.10.2, 4.2.7 Architect's Authority to Rcjcet Work 3.5.1, 42.6, 12.1.2, 12.2.1 Architect's Copyright 1.6 Architect's Decisions 4.2.6,4.2.7,4.2.11,4.2.12,4.2.13,4.3.4,4.4.1,4.4.5, 4.4.6, 4.5, 6.3, 7.3.6, 7.3.8, 8.1.3, 8.3.1, 9.2, 9.4, 9.5.1, 9.8.4, 9.9.1, 13.5.2, 14.2.2, 14.2.4 Architect's Inspections 4.2.2, 4.2.9, 4.3.4, 9.4.2, 9.8.3, 9.9.2, 9.10.1, 13.5 Architect's Instructions 3.2.3, 3.3.1, 4.2.6, 4.2.7, 4.2.8, 7.4.1, 12.1, 13.52 Architect's Interpretations 4.2.11, 4.2.12, 4.3.6 Architect's Project Representative 4.2.10 Architect's Relationship with Contractor 1.1.2, 1.6, 3.1.3, 3.2.1, 3.2.2, 3.2.3, 3.3.1, 3.4.2, 3.5.1, 3.7.3, 3.10, 3.11, 3.12, 3.16, 3.18, 4.1.2, 4.1.3, 4.2, 4.3.4, 4.4.1, 4.4.7, 5.2, 6.2.2, 7, 8.3.1, 9.2, 9.3, 9.4, 9.5, 9.7, 9.8, 9.9, 10.2.6, 10.3, 11.3, 11.4.7, 12, 13.4.2, 13.5 Architect's Relationship with Subcontractors 1.1.2, 4.2.3, 4.2.4, 4.2.6, 9.6.3, 9.6.4, 11.4.7 Architect's Representations 9.4.2, 9.5.1, 9.10.1 Architect's Site Visits 4.22, 42.5, 4.2.9, 43.4, 9.42, 9.5.1, 9.9.2, 9.10.1, 13.5 Asbestos 10.3.1 Attorneys' Fees 3.18.1, 9.10.2, 10.3.3 Award of Separate Contracts 6.1.1, 6.1.2 Award of Subcontracts and Other Contracts for Portions of the Work 5.2 Basic Definitions 1.1 Bidding Requirements 1.1.1, 1.1.7, 5.2.1, 11.5.1 Boiler and Machinery Insurance 11.4.2 Bonds, Lien 9.10.2 Bonds, Performance, and Payment 7.3.6.4, 9.6.7, 9.10.3, 11.4.9, 11.5 Building Permit 3.7.1 Capitalization 13 Certificate of Substantial Completion AIA Document A201'N —1997. Copyright (0119111, 1915, 1918, 1925, 1937, f 951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized 2 reproduction or distribution of this AIA® Document, or any portion of It may result In severe civil and criminal penalties, and will be prosecuted to the J maximum extent possible under the law. This document was produced by AIA software at 14:41.00 on 12/10/2008 under Order No.1000375455 1 which expires on 10,20,2009, and is not for resale. User Notes: (392-5236195) 9.8.3, 9.8.4, 9.85 Certificates for Payment 42.5,4.2.9,9.3.3,9.4,9.5,9.6.1,9.6.6,9.7.1,9.10.1, 9.10.3, 13.7, 14.1.1.3, 142.4 Certificates of Inspection, Testing or Approval 13.5.4 Certificates of Insurance 9.10.2, 11.1.3 Change Orders 1.1.1, 2.4.1, 3.42, 3.8.2.3, 3.11.1, 3.12.8, 4.2.8, 4.3.4, 4.3.9, 5.2.3, 7.1, 7.2, 7.3, 8.3.1, 9.3.1.1, 9.10.3, 11.4.1.2, 11.4.4, 11.4.9, 12.12 Change Orders, Definition of 7 2.1 CHANGES IN THE WORK 3.I 1, 4.2.8, 7, 83.1, 9.3.1.1, 11.4.9 Claim, Definition of 4.3.1 Claims and Disputes 32.3,4.3,4.4,4.5,4.6,6.1.1,6.3,7.3.8,9.3.3,9.10.4. 10.3.3 Claims and Timely Assertion of Claims 4.65 Claims for Additional Cost 3.2.3, 4.3.4, 4.3.5, 4.3.6, 6.1.1, 7.3.8, 10.3.2 Claims for Additional Time 3.2.3, 4.3.4, 4.3.7, 6.1.1, 8.3.2, 10.32 Claims for Concealed or Unknown Conditions 4.3.4 Claims for Damages 3.2.3, 3.18, 4.3.10, 6.1.1, 8.3.3, 9.5.1, 9.6.7, 10.3.3, I1.1.1,11.4.5,11.4.7,14.1.3,14.2.4 Claims Subject to Arbitration 4.4.1, 4.5.1, 4.6.1 Cleaning Up 3.15, 6.3 Commencement of Statutory Limitation Period 13.7 Commencement of the Work, Conditions Relating to 2.2.1,3.2.1,3.4.1,3.7.1,3.10.1,3.12.6,4.3.5,5.2.1, 5.2.3, 6.2.2, 8.1.2, 8.2.2, 8.3.1, 11.1, 11.4.1, 11.4.6, 11.5.1 Commencement of the Work, Definition of 8.1.2 Communications Facilitating Contract Administration 3.9.1, 4.2.4. Completion, Conditions Relating to 1.6.1, 3.4.1, 3.11, 3.15, 422, 4 2.9, 8.2, 9.4 2, 9.8, 9.9.1, 9.10, 12.2, 13.7, 14.1.2 COMPLETION, PAYMENTS AND 9 Completion, Substantial 4.2.9,8.1.1,8.1.3,8.2.3.,9.4.2,9.8,9.9.1,9.10_3, 9.10.42,122113.7 Compliance with Laws 1.6.1, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, 4.6.4, 4.6.6, 9.6.4, 10.2.2, 11.1, 11.4, 13.1, 13.4, 13.5. 1, 13.5.2, 13.6, 14.1.1, 14.2.1.3 Concealed or Unknown Conditions 43.4, 8.3.1, 10.3 Conditions of the Contract 1.1.1, 1.13,6.1.1,6.1A Consent, Written 1.6, 3A2, 3.12.8, 3.14.2, 4.1.2, 4.3.4, 4.6.4, 9.3.2, 9.8.5, 9.9.1, 9.102, 9.10.3, 11.4.1, 13.2, 13.4.2 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS 1.1.4, 6 Construction Change Directive, Definition of 7.3.1 Construction Change Directives 1.1.1, 3.12.8, 4.2.8, 4.3.9, 7.1, 7.3, 9.3.1.1 Construction Schedules, Contractor's 1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3 Contingent Assignment of Subcontracts 5.4,14.2.2.2 Continuing Contract Performance 4.3.3 Contract, Definition of 1.1.2 CONTRACT, TERMINATION OR SUSPENSION OF THE 5.4.1.1, 11.4.9, 14 Contract Administration 3.1.3, 4, 9.4, 9.5 Contract Award and Execution, Conditions Relating to 3.7.1, 3.10, 5.2, 6.1, 11.1.3, 11.4.6, 11.5.1 Contract Documents, The 1.1, 1.2 Contract Documents, Copies Furnished and Use of 1.6, 2.2.5, 53 Contract Documents, Definition of 1.1.1 Contract Sum 3.8, 4.3.4, 4.3.5, 4.4.5, 5.2.3, 7.2, 7.3, 7.4, 91, 9.4.2, 9.5.1.4, 9.6.7, 9.7, 10.3.2, 11.4.1, 14.2.4, 14.3.2 Contract Sum, Definition of 9.1 Contract Time 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1.3, 7.3, 7.4, 8.1.1, 8.2, 8.3.1, 9.5.1, 9.7, 103.2,12.L1, 14.3.2 Contract Time, Definition of 8.1.1 CONTRACTOR 3 Contractor, Definition of 3.1, 6.1.2 Contractor's Construction Schedules 1.4.12,3.10,3.12.1, 3.12.2, 4.3.7.2, 6.1.3 Contractor's Employees Init. AIA Document A201 TM —1997. Copyright ®1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. AN rights reserved. WARNING: This AIO Document Is protected by U.S. Copyright law and International Treaties. Unauthorized 3 reproduction or distribution of this AIAe Document, or any portion of it, may result In severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12/10/2008 under Omer No.1000375455 1 which expires on 1012012009, and is not for resale. — User Notes: (3925236195) 3.3.2, 3.4.3, 3.8.1, 3.9, 3.18.2, 4.2.3, 4.2.6, 10 2, 103, 11.1.1, 11.4.7, 14.1, 14.2.1.1, Contractor's Liability Insurance 11.1 Contractor's Relationship with Separate Contractors and Owner's Forces 3.12.5, 3.14.2, 4.2.4, 6, 11.4.7, 12.1.2, 12.2.4 Contractor's Relationship with Subcontractors 1.2.2, 3.3.2, 3.18.1, 3.18.2, 5, 9.6.2, 9.6.7, 9.10.2, 11.4.1.2, 11.4.7, 11.4.8 Contractor's Relationship with the Architect 1.1.2, 1.6, 3.1.3, 3.2.1, 3.2.2, 3.2.3, 3.3.1, 3.4.2, 3.5.1, 3.7.3, 3.10, 3.11, 3.12, 3.16, 3.18, 4.1.2, 4.1.3, 4.2, 4.3.4, 4.4.1, 4.4.7, 5 2, 6.2.2, 7, 8.3.1, 9.2, 9.3, 9.4, 9.5, 9.7, 9.8, 9.9, 10.2.6, 10.3, 11.3, 11.4.7, 12, 13.4.2, 13.5 Contractor's Representations 1.5.2, 3.5.1, 3.12.6, 6.2.2, 8.2.1, 9.3.3, 9.8.2 Contractor's Responsibility for Those Performing the Work 3.3.2, 3.18, 4.2.3, 4.3.8, 5.3.1, 6.1.3, 6.2, 6.3, 9.5. 1, 10 Contractor's Review of Contract Documents 1.5.2, 3.2, 3.7.3 Contractor's Right to Stop the Work 9.7 Contractor's Right to Terminate the Contract 4.3.10, 14.1 Contractor's Submittals 3.10, 3.11, 3.12, 42.7, 52.1, 5.2.3, 7.3.6, 92, 9.3, 9.8.2, 9.8.3, 99.1, 9.10.2, 9.10.3, 11.1.3, 1152 Contractor's Superintendent 3.9, 10.2.6 Contractor's Supervision and Construction Procedures 1.22, 33, 3.4, 3.12.10, 4.2.2, 423, 4.3.3, 6.1.3, 6.2.4, 7.1.3, 7.3.4, 7.3.6, 8.2, 10, 12, 14 Contractual Liability Insurance 1L1.L$, 112, 11.3 Coordination and Correlation 1.2, 1.5.2, 3.3.1, 3.10, 3.12.6, 6.1.3, 6.2.1 Copies Furnished of Drawings and Specifications 1.6, 2.2.5, 3.11 Copyrights 1.6, 3.17 Correction of Work 2.3, 2.4, 3.7.4, 4.2.1, 9.4.2, 9.8.2, 9.8.3, 9.9.1, 12.1.2, 12.2, 13.7.1.3 Correlation and Intent of the Contract Documents 1.2 Cost, Definition of 73.6 Costs 2.4, 3.2.3, 3.7.4, 3.82, 3.15.2, 4.3, 5.4.2, 6.1.1, 6.2.3, 7.3.3.3, 7.3.6, 7.3.71, 7.3.8, 9.10.2, 10.3 2, 10.5, 11.3, 11.4,12.1,12.2.1,12.2.4,135,14 Cutting and Patching 6.2.5, 3.14 Damage to Construction of Owner or Separate Contractors 3.14.2, 62.4, 92.1.5, 10.2.12, 10 2.5, 10.6, 11.1, 11.4, 12.2.4 Damage to the Work 3.14.2, 9.9.1, 10.2.1.2, 10.2.5, 10.6, 11.4, 12.2.4 Damages, Claims for 3.2.3, 3.18, 4.3.10, 6.1.1, 8.3.3, 9.5.1, 9.6.7, 10.3.3, 11.1.1,11.4.5,11.4.7,14.1.3,14.2.4 Damages for Delay 6.1.1, 8.3.3, 9.5.1.6, 9.7, 10.3.2 Date of Commencement of the Work, Definition of 8.1.2 Date of Substantial Completion, Definition of 8.1.3 Day, Definition of 8.1.4 Decisions of the Architect 42.6,4:1-7,4'.11,42.12,4.2.13,4.3.4,4.4.1,4.4.5, 4.4.6, 4.5, 6.3, 7.3.6, 7.3.8, 8.1.3, 8.3.1, 9.2, 9.4, 9.5.1, 9.8.4, 9.9.1, 13.5.2, 14.2.2, 14.2.4 Decisions to Withhold Certification 9.4.1, 9.5, 9.7, 14.1.1.3 Defective or Nonconforming Work, Acceptance, Rejection and Correction of 2.3, 2.4, 3.5.1, 4.2.6, 6.2.5, 9.5.1, 9.5.2, 9.6.6, 9.8.2, 9.9.3, 9.10.4, 12.2.1, 13.7.1.3 Defective Work, Definition of 3.5.1 Definitions 1.1, 2.1.1, 3.1, 3.5.1, 3.12.1, 3.12.2, 3.12.3, 4.1.1, 4.3.1,5.1,6.1.2,7.2.1,7.3.1,7.3.6,8.1, 9.1,9.8.1 Delays and Extensions of Time 3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1, 7.3.1, 7.4.1, 8.3, 9.5.1, 9.7.1, 10.3.2, 10.6.1, 14.3.2 Disputes 4.1.4, 4.3, 4.4, 4.5, 4.6, 6.3, 7.3.8 Documents and Samples at the Site 3.11 Drawings, Definition of 1.1.5 Drawings and Specifications, Use and Ownership of 1.1.1, 1.3, 2.2.5, 3.11, 5.3 Effective Date of Insurance 82.2, 11.1.2 Emergencies 4.3.5,10.6, 14.1.1.2 Employees, Contractor's 3.3.2, 3.4.3, 3.8.1, 3.9, 3.18.2, 4.2.3, 4.2.6, 10.2, 10.3, 11.1.1, 11.4.7,14.1, 14.2.1.1 Equipment, Labor, Materials and 1. 1.3, 1.1.6, 3.4, 3.5.1, 3.8.2, 3.8.3, 3.12, 3.13, 3.15. 1, 4.2.6, 4.2.7, 5.2.1, 6.2.1, 7.3.6, 9.3.2, 9.3.3, 9.5.1.3, 9.10.2,10.2.1,102.4,14.2.12 Execution and Progress of the Work IniL AIA Document A201TM —1997. Copyright 0 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIO Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12/10/2008 under Order No.1 0003754551 which expires on 10,120,12009, and is not for resale. User Notes: (3925236195) 1.1.3, 12.1, 1.22, 2.2.3, 22.5, 3.1, 3.3, 3.4, 3.5, 3.7, 3.10, 3.12, 3.14, 4.2.2, 4.2.3, 4.3.3, 6.2.2, 7.1.3, 7.3.4, 82, 9.5, 9.9.1, 10.2, 10.3, 122, 14.2, 14.3 Extensions of Time 32.3,4.3.1,4.3.4,4.3.7,4.4.5,5.2.3,7.2.1,7.3,7.4.1, 9.5.1, 9.7.1, 10.3.2, 10.6.1, 14.3.2 Failure of Payment 4.3.6, 9.5.1.3, 9.7, 9.10.2, 14.1.1.3, 14.2.1.2, 13.6 Faulty Work (See Defective or Nonconforming Work) Final Completion and Final Payment 4.2.1, 4.2.9, 4.32, 9.8.2, 9.10, 11.1.2, 11.1.3, 11.4.1, 11.4.5, 12.3.1, 13.7, 14.2.4, 14.4.3 Financial Arrangements, Owner's 2.2.1, 13.2.2, 14.1.1.5 Fire and Extended Coverage Insurance 11.4 GENERAL PROVISIONS 1 Governing Law 13.1 Guarantees (See Warranty) Hazardous Materials 10.2.4, 10.3, 10.5 Identification of Contract Documents 1.5.1 Identification of Subcontractors and Suppliers 5.2.1 Indemnification 3.17, 3.18, 9.10.2, 10.3.3, 105, 11.4.1.2, 11.4.7 Information and Services Required of the Owner 2.1.2, 2.2, 3.2.1, 3.12.4, 3.12.10, 4.2.7, 4.3.3, 6.1.3, 6.1.4, 6.2.5, 9.3.2, 9.6.1, 9.6.4, 9.9.2, 9.10.3, 10.3.3, 11.2, 11.4,13.5.1,13.52, 14.1.1.4,14.1-A Injury or Damage to Person or Property 4.3.8,10.2,10.6 Inspections 3.1.3, 3.3.3, 3.7.1, 4.2.2, 4.2.6, 4.2.9, 9.4.2, 9.8.2, 9.83, 9.92, 9.10.1, 12.2.1, 13.5 Instructions to Bidders 1.1.1 Instructions to the Contractor 3.2.3, 3.3.1, 3.8.1, 4.2.8, 5.2.1, 7, 12, 8.2.2, 13.5.2 Insurance 3.18.1, 6.1.1, 7.3.6, 8.2.1, 9.3.2, 9.8.4, 9.9.1, 9.10.2, 9.10.5, 11 Insurance, Boiler and Machinery 11.4.2 Insurance, Contractor's Liability 11.1 Insurance, Effective Date of 8:2-2, 11.1.2 Insurance, Loss of Use 11.4.3 Insurance, Owner's Liability 11.2 Insurance, Project Management Protective Liability 11.3 Insurance, Property 10.2.5, 11.4 Insurance, Stored Materials 9.3.2, 1 1.4.1.4 INSURANCE AND BONDS 11 Insurance Companies, Consent to Partial Occupancy 9.9.1, 11.4.1.5 Insurance Companies, Settlement with 11.4.10 Intent of the Contract Documents 1.2.1, 4.2.7, 4.2.12, 4.2.13, 7.4 Interest 13.6 Interpretation 1.2.3, 1.4, 4.1.1, 4.3.1, 5.1, 6.1.2, 8.1.4 Interpretations, Written 4.2.11, 4.2.12, 4.3.6 Joinder and Consolidation of Claims Required 4.6.4 Judgment on Final Award 4.6.6 Labor and Materials, Equipment 1.1.3, 1.1.6, 3.4, 3.5.1, 3.8.2, 3.8.3, 3.12, 3.13, 3.15.1, 42.6, 4.2.7, 5.2.1, 6.2.1, 7.3.6, 9.3.2, 9.3.3, 9.5.1.3, 9.10.2,10.2.1,10.2.4,142.1.2 Labor Disputes 8.3.1 Laws and Regulations 1.6, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, 4.6, 9.6.4, 9.9.1,10.2.2,11.1,1I 4,13.1, 13A,13.5.1, 13.5.2, 13.6, 14 Liens 2.1.2, 4.4.8, 8.2.2, 9.3.3, 9.10 Limitation on Consolidation or Joinder 4.6A Limitations, Statutes of 4.6.3, 12.2.6, 13.7 Limitations of Liability 2.3,3.2.1,3.5.1,3.7.3,3.12.8,312.10,3.17,3.18, 4.2.6, 4.2.7, 4.2.12, 6.2.2, 9.4.2, 9.6.4, 9.6.7, 9.10.4, 10.3.3, 10.2.5, 11.1.2, 11.2.1, 11.4.7, 12.2.5, 13.4.2 Limitations of Time 2.1.2,2.2,2.4,32.1,3.7.3,3.10,3.11,3.12.5,3.15.1, 4.2.7, 4.3, 4.4, 4.5, 4.6, 5.2, 5.3, 5A, 6.2.4, 7.3, 7.4, 8.2,92,9.3.1,9.3.3,9.4.1,9.5,9.6,9.7,9.8,9.9, 9.10, 11.1.3, 11 A. 1.5, 11.4.6, 11.4.10, 12.2, 13.5, 13.7, 14 Loss of Use Insurance 11.4.3 Material Suppliers 1.6,3.12.1,42.4,42.6,5.2.1,93,9.4.2,9.6,9.10.5 Materials, Hazardous 10.2.4, 10.3, 10.5 AIA Document A201 TM —1997. Copyright 0 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American snit. Institute of Architects. All rights reserved. WARNING: This AIAe Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 14:41.00 on 12(10/2008 under Order No_1000375455_1 which expires on 10.120.12009, and is not for resaa. User Notes: (3925236195) Materials, Labor, Equipment and 1.1.3, 1.1.6, 1.6.1, 3.4, 3.5.1, 3.8.2, 3.8.23, 3.12, 3.13, 3.15.1, 4.2.6, 4.2.7, 5.2.1, 6.2.1, 7.3.6, 9.3.2, 9.3.3, 9.5.1.3, 9.1021 10.2.1, 10.2.4, 14.2.1.2 Means, Methods, Techniques, Sequences and Procedures of Construction 3.3.1, 3.1110, 4.2.2, 4.2.7, 9.4.2 Mechanic's Lien 4.4.8 Mediation 4.4.1, 4.4.5, 4.4.6, 4.4.8, 4.5, 4.6.1, 4.62, 8.3.1, 10.5 Minor Changes in the Work 1.1.1, 3.12.8, 4.2.8, 4.3.6, 7.1, 7A MISCELLANEOUS PROVISIONS 13 Modifications, Definition of 1.1.1 Modifications to the Contract 1.1.1, 1.1.2, 3.7.3, 3.11, 4.1.2, 4.2.1, 5.2.3, 7, 8.3.1, 9.7, 10.3.2, 11.4.1 Mutual Responsibility 6.2 Nonconforming Work, Acceptance of 9.6.6, 9.9.3, 12.3 Nonconforming Work, Rejection and Correction of 2.3, 2.4, 3.5.1, 4.2.6, 6.2.5, 9.5.1, 9.8.2, 9.9.3, 9.10.4, 12.2.1, 13.7.1.3 Notice 2.2.1,2.3,2.4,3.2.3,3.3.1,3.72,3.7.4,3.12.9,4.3, 4.4.8, 4.6.5, 5.2.1, 8.2.2, 9.7, 9.10, 10.2.2, 11.1.3, 11.4.6,12.2.2,12.2.4,13.3,13.5.1,13.5.2,14.1,142 Notice, Written 2.3, 2.4, 3.3.1, 3.9, 3.12.9, 3.12.10, 4.3, 4.4.8, 4.6.5, 5.2.1, 8.2.2, 9.7, 9.10, 10.2.2, 10.3, 11.1.3,1 L4.6, 12.2.2, 12.2.4, 13.3, 14 Notice of Testing and Inspections 13.5.1, 13.5.2 Notice to Proceed g:%_2 Notices, Permits, Fees and 2.2.2' 3.7, 3.13, 7.3.6.4, 10.2.2 Observations, Contractor's 15.2, 3.2, 3.7.3, 4.3.4 Occupancy 2.2.2, 9.6.6, 9.8, 11.4.1.5 Orders, Written 1.1.1, 2.3, 3.9, 4.3.6, 7, 8.2.2, 11.4.9, 12.1, 122, 13.5.2, 14.3.1 OWNER 2 Owner, Definition of 2.1 Owner, Information and Services Required of the 2.1.2, 2.2, 3.2.1, 3.12.4, 3.12.10, 4.2.7, 4.3.3, 6.1.3, 6.1.4, 2.5, 9.3 2, 9.6.1, 9.6.4, 992, 9.10.3, 10.33, 11.2, 11.4, 13.5.1, 13.5.2, 14.1.1.4, 14.1.4 Owner's Authority 1.6, 2.1.1, 2.3, 2.4, 3.42, 3.8.1, 3.12.10, 3.14.2, 4.1.2, 4.1.3, 4.2.4, 4.2.9, 4.3.6, 4.4.7, 5.2.1, 5.2.4, 5.4.1, 6.1, 6.3, 7.2.1, 7.3.1, 8.2.2, 8.3.1, 9.3.1, 9.3.2, 9.5.1, 9.9.1, 9.10.2, 10.3.2, 11.1.3, 11.3.1, 11.4.3, 11.4.10, 12.2.2,12.3.1,13.22,14.3,14.4 Owner's Financial Capability 2.2.1, 13.2.2, 14,1.1.5 Owner's Liability Insurance 11.2 Owner's Loss of Use Insurance 11.4.3 Owner's Relationship with Subcontractors 1.1.2, 52, 5.3, 5.4, 9.6.4, 9.10.2, 142.2 Owner's Right to Carry Out the Work 2.4,12.2.4.14.2.2.2 Owner's Right to Clean Up 6.3 Owner's Right to Perform Construction and to Award Separate Contracts 6.1 Owner's Right to Stop the Work 2.3 Owner's Right to Suspend the. Work 14.3 Owner's Right to Terminate the Contract 14.2 Ownership and Use of Drawings, Specifications and Other Instruments of Service 1. 1.1, 1.6, 2.2.5, 3.2.1, 3.11.1, 3.17.1, 4.2.12, 5.3 Partial Occupancy or Use 9.6.6, 9.9, 11.4.1.5 Patching, Cutting and 3.14, 6.2.5 Patents 3.17 Payment, Applications for 4.2.5, 7.3.8, 9.2, 9.3, 9.4, 9.5.1, 9.6.3, 9.7.1, 9.8.5, 9.10.1, 9.10.3, 9.10.5, 11.1.3, 14.2.4, 14.4.3 Payment, Certificates for 4.2.5, 4.2.9, 9.3.3, 9.4, 9.5, 9.6.1, 9.6.6, 9.7.1, 9. 10. 1, 9.10.3, 13.7, 14.1.1.3, 14.2.4 Payment, Failure of 4.3.6, 9.5.1.3, 9.7, 9.10.2, 14.1.1.3, 14.2.1.2, 13.6 Payment, Final 4.2.1, 4.2.9, 4.3.2, 9.8.2, 9.10, I1.I.2, 11.1.3, 11.4.1, 11.4.5, 123.1, 13.7, 142.4, 14.4.3 Payment Bond, Performance Bond and 7.3.6.4, 9.6.7, 9.10.3, 11.4.9,11.5 Payments, Progress 4.3.3, 9.3, 9.6, 9.8.5, 9.10.3, 13.6, 14.2.3 PAYMENTS AND COMPLETION 9 Payments to Subcontractors 5.4.2, 9.5.1.3, 9.6.2, 9.6.3, 9.6.4, 9.6.7, 11.4.8, 14.2.1.2 PCB 10.3.1 AIA Document A201 TM —1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American (nit. Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Law and International Trestles. Unauthorized 6 reproduction or distribution of this AIA® Document, or any portion of It, may result in severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12/10/2008 under Order NoA 0003754551 which expires on 10120,12009, and is not for resale. User Notes: (3925236195) Performance Bond and Payment Bond 7.3.6.4, 9.6.7, 9.10.3, 11.4.9, 11.5 Permits, Fees and Notices 222, 3.7, 3.13, 7.3.6.4, 10 2 2 PERSONS AND PROPERTY, PROTECTION OF 10 Polychlorinated Biphenyl 10.3.1 Product Data, Definition of 3.12.2 Product Data and Samples, Shop Drawings 3.11, 3.12, 42.7 Progress and Completion 4.2.2, 4.3.3, 8.2, 9.8, 9.9.1, 14.1.4 Progress Payments 4.3.3, 9.3, 9.6, 9.8.5, 9.10.3, 13.6, 14.2.3 Project, Definition of the 1.1.4 Project Management Protective Liability Insurance 11.3 Project Manual, Definition of the 1.1.7 Project Manuals 2.2.5 Project Representatives 4.2.10 Property Insurance 10.2.5,11.4 PROTECTION OF PERSONS AND PROPERTY 10 Regulations and Laws 1.6, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, 4.6, 9.6.4, 9.9.1, 10.22,11.1, 11.4, 13.1, 13.4, 13.5.1, 13.5.2, 13.6, 14 Rejection of Work 3.5.1, 4.2..6, 12. 2_1 Releases and Waivers of Liens 9.102 Representations 1.5.2, 3.5.1, 3.12.6, 6.2.2, 8.2.1, 9.3.3, 9.4.2, 9.5.1, 9.8.2, 9.10.1 Representatives 2.1.1, 3.1.1, 3.9, 4.1.1, 42.1, 4.2.10, 5.1.1, 5.1.2, 13.2.1 Resolution of Claims and Disputes 4.4, 4.5, 4.6 Responsibility for Those Performing the Work 3.3.2, 3.18, 4.2.3, 4.3.8, 5.3.1, 6.1.3, 6.2, 6.3, 9.5. 1, 10 Retainage 9.3.1, 9.6.2, 9.8.5, 9.9.1, 9.10.2, 9.10.3 Review of Contract Documents and Field Conditions by Contractor 1.5.2, 3.2, 3.7.3, 3.12.7, 6.1.3 Review of Contractor's Submittals by Owner and Architect 3.10.1,3.10.2,3.11,3.12,4.2,5.2,6.1.3,9.2,9.8.2 Review of Shop Drawings, Product Data and Samples by Contractor 3.12 Rights and Remedies 1. 1.2, 2.3, 2.4, 3.5.1, 3.15.2, 4.2.6, 4.3.4, 4.5, 4.6, 5.3, 5A, 6.1, 63, 7.3.1, 8.3, 9.5.1, 9.7, 10.2.5, 10.3, 12.2.2, 12.2A,13.4,14 Royalties, Patents and Copyrights 3.17 Rules and Notices for Arbitration 4.6.2 Safety of Persons and Property 10.2,10.6 Safety Precautions and Programs 3.3.1, 4.2.2, 4.2.7, 5.3.1, 10.1, 10.2, 10.6 Samples, Definition of 3.12.3 Samples, Shop Drawings, Product Data and 3.11, 3.12, 4.2.7 Samples at the Site, Documents and 3.11 Schedule of Values 9.2, 93.1 Schedules, 1.4.1.2, 3.10, 3.Construetion12.1, 3.12.2, 4.3.7.2, 6.1.3 Separate Contracts and Contractors 1. 1.4, 3.12.5, 3.14.2, 4.2.4, 4.2.7, 4.6.4, 6, 8.3. 1, 11.4.7, 12.1.2, 12.2.5 Shop Drawings, Definition of 3.12.1 Shop Drawings, Product Data and Samples 3.11, 3.12, 4.2.7 Site, Use of 3.13, 6.1.1, 6.2.1 Site Inspections 1.2.2, 3.2.1, 3.3.3, 3.7.1, 4.2, 4.3.4, 9.4.2, 9.10.1, 13.5 Site Visits, Architect's 4.2.2, 4.2.9, 4.3.4, 9.4.2, 9.5.1, 9.9.2, 9.10.1, 13.5 Special Inspections and Testing 4.2.6, 12.2.1, 13.5 Specifications, Definition of the 1.1.6 Specifications, The 1. 1. 1, 1.1.6, 1.1.7, 1.2.2, 1.6, 3.11, 3.12.10, 3.17 Statute of Limitations 4.6.3, 12.2.6, 13.7 Stopping the Work 2.314.3.6, 9.7, 10.3, 14.1 Stored Materials 6.2.1, 9.3.2, 10.2.1.2, 10.2.4, 11.4.1.4 Subcontractor, Definition of 5.1.1 SUBCONTRACTORS AIA Document A201 TM —1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. insfifute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright taw and International Treaties. Unauthorized 7 reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penaRies, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12JI0/2008 under Order No.1000375455_1 which e..Nlres on 10/20/2009, and is not for resale. User Notes; (3925236195) 5 Subcontractors, Work by 1.2.2, 3.3.2, 3.12.1, 4.2.3, 5.2.3, 5.3, 5.4, 9.3.1.2, 9.6.7 Subcontractual Relations 5.3, 5.4, 9.3.1.2, 9.6, 9.10 10.2.1, 11.4.7, 11.4.8, 14.1, 14.2.1,143.2 Submittals 1.6, 3.10, 3.11, 3.12, 4.2.7, 5.2.1, 5.2.3, 7.3.6, 9.2, 9.3, 9.8, 9.9.1, 9.10.2, 9.10.3, 11.1.3 Subrogation, Waivers of 6.1.1, 11.4.5,11A.7 Substantial Completion 4.2.9, 8.1.1, 8.1.3, 8.2.3, 9.4.2, 9.8, 9.9.1, 9.10.3, 9.10.4.2, 12.2, 13.7 Substantial Completion, Definition of 9.8.1 Substitution of Subcontractors 5.2.3, 5.2.4 Substitution of Architect 4.1.3 Substitutions of Materials 3.4.2, 3.5.1, 73.7 Sub -subcontractor, Definition of 5.1.2 Subsurface Conditions 4.3.4 Successors and Assigns 13.2 Superintendent 39,102.6 Supervision and Construction Procedures 1.2.2, 3.3, 3.4, 3.12.10, 4.2.2, 4.2.7, 4.3.3, 6.1.3, 6.2.4, 7.1.3, 7.3.6, 8.2, 8.3.1, 9A.2,10, 12,14 Surety 4.4.7,5.4.1.2,9.8.5,9.10.2,9.10.3,14.221 Surety, Consent of 9.10.2, 9.10.3 Surveys 2.2.3 Suspension by the Owner for Convenience 14.4 Suspension of the Work 5.4.2, 14.3 Suspension or Termination of the Contract 4.3.6, 5.4.1.1, 11.4.9, 14 Taxes 3.6, 3.8.2.1, 7.3.6.4 Termination by the Contractor 4.3.10, 14.1 Termination by the Owner for Cause 4.3.10, 5.4.1.1, 14.2 Termination of the Architect 4.1.3 Termination of the Contractor 14.2.2 TERMINATION OR SUSPENSION OF THE CONTRACT 14 Tests and Inspections 3.1.3, 3.3.3, 4.2.2, 4.2.6, 4.2.9, 9.4.2, 9.8.3, 9.9.2, 9.10.1, 10.3.2, 11.4.1.1, 12.2.1,13.5 TIME 8 Time, Delays and Extensions of 3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1, 7.3.1, 7.4.1, 8.3, 9.5.1, 9.7.1, 10.3.2, 10.6.1, 14.3.2 Time Limits 2.1.2, 2.2, 2.4, 3.2.1, 3.7.3, 3.10, 3.11, 3.12.5, 3.15. 1, 4.2, 4.3, 4.4, 4.5, 4.6, 5.2, 5.3, 5.4, 6.2.4, 7.3, 7.4, 8.2, 9.2, 9.3.1, 9.3.3, 9.4.1, 9.5, 9.6, 9.7, 9.8, 9.9, 9.10,11.1.3,11.4.1.5, 11.4.6,11.4.10,12.2,13.5, 13.7, 14 Time Limits on Claims 4.3.2, 4.3.4, 4.3.8, 4.4, 4.5, 4.6 Title to Work 9.3.2, 93.3 UNCOVERING AND CORRECTION OF WORK 12 Uncovering of Work 12.1 Unforeseen Conditions 4.3.4, 8.3.1, 10.3 Unit Prices 4.3.9, 7.3.3.2 Use of Documents 1.1.1, 1.6,2.2.5,3.12.6,5.3 Use of Site 3.13, 6.1_l, 6.2.1 Values, Schedule of 9.2, 9.3.1 Waiver of Claims by the Architect 13.4.2 Waiver of Claims by the Contractor 4.3.10, 9.10.5, 11.4.7, 13.4.2 Waiver of Claims by the Owner 4.3.10, 9.9.3, 9.10.3, 9.10.4, 11.4.3, 11.4.5, 11.4.7, 12.2.2.1, 13.4.2, 14.2.4 Waiver of Consequential Damages 4.3.10, 14.2.4 Waiver of Liens 9.10.2, 9.10.4 Waivers of Subrogation 6.1.1, 11.45, 11.4.7 Warranty 3.5, 42.9, 4.3.53, 9.3.3, 9.8.4, 9.9.1, 9.10.4,12.2.2, 13.7.1.3 Weather Delays 4.3.7.2 Work, Definition of 1.1.3 Written Consent AtA Document A201 n —1997. Copyright t9 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This A10 Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 8 reproduction or distribution of this AIAe Document, or any portion of 1% may result In severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 14:41 00 on 1 V10/2008 under Order No_1000375455 1 which expires on 10,120,12009, and is not for resale. User Notes: (3925236195) 1.6, 3.4.2. 3.12.8, 3.14.2, 4.1.2, 4.3.4, 4.6.4, 9.3.2, 9.8.5, 9.9.1, 9.10.2, 9.10.3, 11.4.t, 13.2, 13.4.2 Written Interpretations 42.11,4.2.12,43.6 Written Notice 2.3, 2.4, 3.3.1, 3.9, 3.12.9, 3.12.10, 4.3, 4.4.8, 4.6.5, 5.2.1, 8.2.2, 9.7, 9.10, 10.2.2, 10.3, 11.1.3, 11.4.6, 122.2, 12.2.4, 13.3, 14 Written Orders 1.1.1, 2.3, 3.9, 4.3.6, 7, 82.2, 11.4.9, 12.1, 122, 13.5.2, 14.3.1 AIA Document A201 TM —1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIO Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized 9 reproduction or distribution of this AIA® Document, or any portion of 1% may result in severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12/10/2008 under Order No.1000375455_1 which expires on 1,0,120,12009, and is not for resale. User Notes: (3925236195) ARTICLE i GENERAL PROVISIONS § 1.1 BASIC DEFINITIONS § 1.1.1 THE CONTRACT DOCUMENTS The Contract Documents consist of the Agreement between Owner and Contractor (hereinafter the Agreement), Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of the Contraact, other documents listed in the Agreement and Modifications issued after execution of the Contract. A Modification is (1) a written amendment to the Contract signed by both parties, (2) a Change Order, (3) a Construction Change Directive or (4) a written order for a minor change in the Work issued by the Architect. Unless specifically enumerated in the Agreement, the Contract Documents do not include other documents such as bidding requirements (advertisement or invitation to bid, Instructions to Bidders, sample forms, the Contractor's bid or portions of Addenda relating to bidding requirements). § 1.1.2 THE CONTRACT The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a Modification. The Contract Documents shall not be construed to create a contractual relationship of any kind (1) between the Architect and Contractor, (2) between the Owner and a Subcontractor or Sub -subcontractor, (3) between the Owner and Architect or (4) between any persons or entities other than the Owner and Contractor. The Architect shall, however, be entitled to performance and enforcement of obligations under the Contract intended to facilitate performance of the Architect's duties. § 1.1.3 THE WORK The term "Work" .means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project. § 1.1.4 THE PROJECT The Project is the total construction of which the Work performed under the Contract Documents may be the whole or a part and which may include construction by the Owner or by separate contractors. § 1A.5 THE DRAWINGS The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules and diagrams. § 1.1.6 THE SPECIFICATIONS The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related services. § 1.1.7 THE PROJECT MANUAL The Project Manual is a volume assembled for the Work which may include the bidding requirements, sample forms, Conditions of the Contract and Specifications. § 1.2 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS § 1.2.1 The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The ContractDocuments are complementary, and what is required by one shall be as binding as if required by all; performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results. § 1.2.2 Organization of the Specifications into divisions, sections and articles, and arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. § 1.2.3 Unless otherwise stated in the Contract Documents, words which have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings. AIA Document A2017e —1997. Copyright 0 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This A10 Document Is protected by U.S. Copyright Law and international Treaties. Unauthorized 10 reproduction or distribution of this AIAa Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by ALA software at 14:41:00 on 12110/2008 under Order No.1000375455_1 which expires on 10120,12009, and is not for resale. User Notes: (3925236195) § 1.3 CAPITALIZATION § 1.3.1 Terms capitalized in these General Conditions include those which are (1) specifically defined, (2) the titles of numbered articles or (3) the titles of other documents published by the American Institute of Architects. § 1.4INTERPRETATION § 1.4.1 In the interest of brevity the Contract Documents frequently omit modifying words such as "all" and "any" and articles such as "the" and "an," but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect the interpretation of either statement. § 1.5 EXECUTION OF CONTRACT DOCUMENTS § 1.5.1 The Contract Documents shall be signed by the Owner and Contractor. If either the Owner or Contractor or both do not sign all the Contract Documents, the Architect shall identify such unsigned Documents upon. request. § 1.52 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become generally familiar with local conditions under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents. § 1.6 OWNERSHIP AND USE OF DRAWINGS, SPECIFICATIONS AND OTHER INSTRUMENTS OF SERVICE § 1.6.1 The Drawings, Specifications and other documents, including those in electronic form, prepared by the Architect and the Architect's consultants are Instruments of Service through which the Work to be executed by the Contractor is described. The Contractor may retain one record set. Neither the Contractor nor any Subcontractor, Sub -subcontractor or material or equipment supplier shall own or claim a copyright in the Drawings, Specifications and other documents prepared by the Architect or the Architect's consultants, and unless otherwise indicated the Architect and the Architect's consultants shall be deemed the authors of them and will retain all common law, statutory and other reserved rights, in addition to the copyrights_ All copies of Instruments of Service, except the Contractor's record set, shall be returned or suitably accounted for to the Architect, on request, upon completion of the Work. The Drawings, Specifications and other documents prepared by the Architect and the Architect's consultants, and copies thereof furnished to the Contractor, are for use solely with respect to this Project. They are not to be used by the Contractor or any Subcontractor, Sub -subcontractor or material or equipment supplier on other projects or for additions to this Project outside the scope of the Work without the specific written consent of the Owner, Architect and the Architect's consultants. The Contractor, Subcontractors, Sub -subcontractors and material or equipment suppliers are authorized to use and reproduce applicable portions of the Drawings, Specifications and other documents prepared by the Architect and the Architect's consultants appropriate to and for use in the execution of their Work under the Contract Documents. All copies made under this authorization shall bear the statutory copyright notice, if any, shown on the Drawings, Specifications and other documents prepared by the Architect and the Architect's consultants. Submittal or distribution to meet official regulatory requirements or for other purposes in connection with this Project is not to be construed as publication in derogation of the Architect's or Architect's consultants' copyrights or other reserved rights. ARTICLE 2 OWNER § 2A GENERAL § .2.1_1 The Owner is .the person or.entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The Owner shall designate in writing a representative who shall have express authority to bind the Owner with respect to all matters requiring the Owner's approval or authorization. Except as otherwise provided in Section 4.2.1, the Architect does not have such authority. The term "Owner" means the Owner or the Owner's authorized representative. § 2.12 The Owner shall furnish to the Contractor within fifteen days after receipt of a written request, information necessary and relevant for the Contractor to evaluate, give notice of or enforce mechanic's lien rights. Such information shall include a correct statement of the record legal title to the property on which the Project is located, usually referred to as the site, and the Owner's interest therein. § 2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER § 2.2.1 The Owner shall, at the written request of the Contractor, prior to colmnencement of the Work and thereafter, furnish to the Contractor reasonable evidence that financial arrangements have been made to fulfill the Owner's obligations under the Contract. Furnishing of such evidence shall be a condition precedent to commencement or AIA Document A201 Tm—1997. Copyright 0 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIO Document, or any portion of it, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12/10/2008 under Order No.1000375455 1 which expires on 10.120,12009, and ie not for resale. User Notes: (3925236195) continuation of the Work. After such evidence has been furnished, the Owner shall not materially vary such financial arrangements without prior notice to the Contractor. § 2.2.2 Except for permits and fees, including those required under Section 3 7.1, which are the responsibility of the Contractor under the Contract Documents, the Owner shall secure and pay for necessary approvals, easements, assessments and charges required for construction, use or occupancy of permanent structures or for permanent changes in existing facilities. § 2.2.3 The Owner shall furnish surveys describing physical characteristics, Iegal limitations and utility locations for the site of the Project, and a legal description of the site. The Contractor shall be entitled to rely on the accuracy of information furnished by the Owner but shall exercise proper precautions relating to the safe performance of the Work. § 2.2.4 Information or services required of the Owner by the Contract Documents shall be furnished by the Owner with reasonable promptness. Any other information or services relevant to the Contractor's performance of the Work under the Owner's control shall be furnished by the Owner after receipt from the Contractor of a written request for such information or services. § 2.2.5 Unless otherwise provided in the Contract Documents, the Contractor will be furnished, free of charge, such copies of Drawings and Project Manuals as are reasonably necessary for execution of the Work. § 2.3 OWNER'S RIGHT TO STOP THE WORK § 2.3.1 If the Contractor fails to correct Work which is not in accordance with the requirements of the Contract Documents as required by Section 12.2 or persistently fails to carry out Work in accordance with the Contract Documents, the Owner may issue a written order to the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, the right of the Owner to stop the Work shall not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity, except to the extent required by Section 6.1.3. § 2.4 OWNER'S RIGHT TO CARRY OUT THE WORK § 2.4.1 If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a seven-day period after receipt of written notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness, the Owner may after such seven-day period give the Contractor a second written notice to correct such deficiencies within a three-day period. If the Contractor within such three-day period after receipt of such second notice fails to commence and continue to correct any deficiencies, the Owner may, without prejudice to other remedies the Owner may have, correct such deficiencies. In such case an appropriate Change Order shall be issued deducting from payments then or thereafter due the Contractor the reasonable cost of correcting such deficiencies, including Owner's expenses and compensation for the Architect's additional services made necessary by such default, neglect or failure. Such action by the Owner and amounts charged to the Contractor are both subject to prior approval of the Architect. If payments then or thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference to the Owner. ARTICLE 3 CONTRACTOR § 3.1. GENERAL § 3.1.1 The Contractor is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Contractor" means the Contractor or the Contractor's authorized representative. § 3.1.2 The Contractor shall perform the Work in accordance with the Contract Documents. § 3.1.3 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either by activities or duties of the Architect in the Architect's administration of the Contract, or by tests, inspections or approvals required or performed by persons other than the Contractor. § 3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR § 3.2.1 Since the Contract Documents are complementary, before starting each portion of the Work, the Contractor shall carefully study and compare the various Drawings and other Contract Documents relative to that portion of the Init. AIA Document A201 TM —1997. Copyright 8 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Law and international Treaties. Unauthorized 12 reproduction or distribution of this AIA® Document, or any portion of 1% may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12/10/2008 under Order No.1000375455_1 which expires on 10,12012009, and is not for resale. User Notes: (3925236195) Work, as well as the information furnished by the Owner pursuant to Section 2.2.3, shall take field measurements of any existing conditions related to that portion of the Work and shall observe any conditions at the site affecting it. These obligations are for the purpose of facilitating construction by the Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents. however, any errors, inconsistencies or omissions discovered by the Contractor shall be reported promptly to the Architect as a request for information in such form as the Architect may require. § 3.2.2 Any design errors or omissions noted by the Contractor during this review shall be reported promptly to the Architect, but it is recognized that the Contractor's review is made in the Contractor's capacity as a contractor and not as a licensed design professional unless otherwise specifically provided in the Contract Documents. The Contractor is not required to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, building codes, and rules and regulations, but any nonconformity discovered by or made known to the Contractor shall be reported promptly to the Architect. § 3.2.3 If the Contractor believes that additional cost or time is involved because of clarifications or instructions issued by the Architect in response to the Contractor's notices or requests for information pursuant to Sections 3.2.1 and 3.2.2, the Contractor shall make Claims as provided in Sections 4.3.6 and 4.3.7. If the Contractor fails to perform the obligations of Sections 3.2.1 and 3.2.2, the Contractor shall pay such costs and damages to the Owner as would have been avoided if the Contractor had performed such obligations. The Contractor shall not be liable to the Owner or A rchitect for damages resulting from errors, inconsistencies or omissions in the Contract Documents or for differences between field measurements or conditions and the Contract Documents unless the Contractor recognized such error, inconsistency, omission or difference and knowingly failed to report it to the Architect. § 3.3 SUPERVISION AND CONSTRUCTION PROCEDURES § 3.3.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters. If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures. If the Contractor determines that such means, methods, techniques, sequences or procedures may not be safe, the Contractor shall give timely written notice to the Owner and Architect and shall not proceed with that portion of the Work without further written instructions from the Architect. If the Contractor is then instructed to proceed with the required means, methods, techniques, sequences or procedures without acceptance of changes proposed by the Contractor, the Owner shall be solely responsible for any resulting loss or damage. § 3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for or on behalf of the Contractor or any of its Subcontractors. § 3.3.3 The Contractor shall be responsible for inspection of portions of Work already performed to determine that such portions are in proper condition to receive subsequent Work. § 3.4 LABOR AND MATERIALS § 3.4.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. § 3.4.2 The Contractor may make substitutions only with the consent of the Owner, after evaluation by the Architect and in accordance with a Change Order. § 3.4.3 The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Contract. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. (nit. AIA Document A2017e —1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, i961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 13 reproduction or distribution of this AIA® Document, or any portion of it, may result In severe civil and criminal penalties, and will be prosecuted to the J maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12110/2008 under Order No.1000375455_1 which expires on 1.0120,12009, and is not for resale. User Notes: (3925236195) § 3.5 WARRANTY § 3.5.1 The Contractor warrants to the Owner and Architect that materials and equipment furnished under the Contract will be of good quality and new unless otherwise required or permitted by the Contract Documents, that the Work will be free from defects not .inherent in the quality .required or permitted, and that the Work will conform to the requirements of the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance, improper operation, ornormal wear and tear and_normal usage. If.required by the Architect, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. §.35 TAXES § 3.6.1 The Contractor shall pay sales, consumer, use and sinular taxes for the Work provided by the Contractor which are legally enacted when bids are received or negotiations concluded, whether or not yet effective or merely scheduled to go into effect. § 3.7 PERMITS, FEES AND NOTICES § 3.7.1 Unless otherwise provided in the Contract Documents, the Contractor shall secure and pay for the building permit and other permits and governmental fees, licenses and inspections necessary for proper execution and completion of the Work which are customarily secured after execution of the Contract and which are legally required when bids are received or negotiations concluded. § 3.7.2 The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations and lawful orders of public authorities applicable to performance of the Work. § 3.7.3 It is not the Contractor's responsibility to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, building codes, and rules and regulations. However, if the Contractor observes that portions of the Contract Documents are at variance therewith, the Contractor shall promptly notify the Architect and Owner in writing, and necessary changes shall be accomplished by appropriate Modification. § 3.7.4 If the Contractor performs Work knowing it to be contrary to laws, statutes, ordinances, building codes, and rules and regulations without such notice to the Architect and Owner, the Contractor shall assume appropriate responsibility for such Work and shall bear the costs attributable to correction. § 3.8 ALLOWANCES § 3.8.1 The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents. Items covered by allowances shall be supplied for such amounts and by such persons or entities as the Owner may direct, but the Contractor shall not be required to employ persons or entities to whom the Contractor has reasonable objection. § 3.8.2 Unless otherwise provided in the Contract Documents: .1 allowances shall cover the cost to the Contractor of materials and equipment delivered at the site and all required taxes, less applicable trade discounts; .2 Contractor's costs for unloading and handling at the site, labor, installation costs, overhead, -profit and other expenses contemplated for stated allowance amounts shall be included in the Contract Sum but not in the allowances; .3 whenever costs are more than or less than allowances, the Contract Sum shall be adjusted accordingly by Change Order. The amount of the Change Order shall reflect (1) the difference between actual costs and the allowances under Section 3.8.2.1 and (2) changes in Contractor's costs under Section 3.8.2.2. § 3.8.3 Materials and equipment under an allowance shall be selected by the Owner in sufficient time to avoid delay in the Work. § 3.9 SUPERINTENDENT § 3.9.1 The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work. The superintendent shall represent the Contractor, and communications given to the superintendent shall be as binding as if given to the Contractor. Important AIA Document A201 TM —1997. Copyright ®1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized 14 reproduction or distribution of this AIA® Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the ( maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12/10/2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (3925236195) communications shall be confirmed in writing. Other conununications shall be similarly confirmed on written request in each case. § 3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES § 3.10.1 The Contractor, promptly after being awarded the Contract, shall prepare and submit for the Owner's and Architect's information a Contractor's construction schedule for the Work. The schedule shall not exceed time Iimits current under the Contract Documents, shall be revised at appropriate intervals as required by the conditions of the Work and Project, shall be related to the entire Project to the extent required by the Contract Documents, and shall provide for expeditious and practicable execution of the Work. § 3.10.2 The Contractor shall prepare and keep current, for the Architect's approval, a schedule of submittals which is coordinated with the Contractor's construction schedule and allows the Architect reasonable time to review submittals. § 3.10.3 The Contractor shall perform the Work in general accordance with the most recent schedules submitted to the Owner and Architect. § 3.11 DOCUMENTS AND SAMPLES AT THE SITE § 3.11.1 The Contractor shall maintain at the site for the Owner one record copy of the Drawings, Specifications, Addenda, Change Orders and other Modifications, in good order and marked currently to record field changes and selections made during construction, and one record copy of approved Shop Drawings, Product Data, Samples and similar required submittals. These shall be available to the Architect and shall be delivered to the Architect for submittal to the Owner upon completion of the Work. § 3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES § 3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub -subcontractor, manufacturer, supplier or distributor to illustrate some portion of the Work. § 3.12.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work. § 3.12.3 Samples are physical examples which illustrate materials, equipment or workmanship and establish standards by which the Work will be judged. § 3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required by the Contract Documents the way by which the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents. Review by the Architect is subject to the limitations of Section 4.2.7. Informational submittals upon which the Architect is not expected to take responsive action may be so identified in the Contract Documents. Submittals which are not required by the Contract Documents may be returned by the Architect without action. § 3.12.5 The Contractor shall review for compliance with the Contract Documents, approve and submit to the Architect Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the Owner or of separate contractors. Submittals which are not marked as reviewed for compliance with the Contract Documents and approved by the Contractor may be returned by the Architect without action. § 3.12.6 By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor represents that the Contractor has determined and verified materials, field measurements and field construction criteria related thereto, or will do so, and has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents. § 3.12.7 The Contractor shall perform no portion of the Work for which the Contract Documents require submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the respective submittal has been approved by the Architect. AEA Document A201 n —1997. Copyright to 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American trait. Institute of Architects. All rights reserved. WARNING: This A10 Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 15 reproduction or distribution of this A10 Document, or any portion of it, may result In severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by A1A software at 14:41:00 on 12110/2008 under Order No.1000375455_1 which expires on 1012012009, and is not for resale. User Notes: (3925236195) § 3.12.8 The Work shall be in accordance with approved submittals except that the Contractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents by the Architect's approval of Shop Drawings, Product Data, Samples or similar submittals unless the Contractor has specifically informed the Architect in writing of such deviation at the time of submittal and (1) the Architect has given written approval to the specific deviation as a minor change in the Work, or (2) a Change Order or Construction Change Directive has been issued authorizing the deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples or similar submittals by the Architect's approval thereof. § 3.12.9 The Contractor shall direct spec attention, in writing or on resubmitted Shop Drawings, Product Data, Samples or similar submittals, to revisions other than those requested by the Architect on previous submittals. In the absence of such written notice the Architect's approval of a resubmission shall not apply to such revisions. § 3.12.10 The Contractor shall not be required to provide professional services which constitute the practice of architecture or engineering unless such services are specifically required by the Contract Documents for a portion of the Work or unless the Contractor needs to provide such services in order to carry out the Contractor's responsibilities for construction means, methods, techniques, sequences and procedures. The Contractor shall not be required to provide professional services in violation of applicable law. If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of the Contractor by the Contract Documents, the Owner and the Architect will specify all performance and design criteria that such services must satisfy. The Contractor shall cause such services or certifications to be provided by a properly licensed design professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professional's written approval when submitted to the Architect. The Owner and the Architect shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals, provided the Owner and Architect have specified to the Contractor all performance and design criteria that such services must satisfy. Pursuant to this Section 3.12.10, the Architect will review, approve or take other appropriate action on submittals only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Contractor shall not be responsible for the adequacy of the performance or design criteria required by the Contract Documents. § 3.13 USE OF SITE § 3. M The Contractor shall confine operations at the site to areas permitted by law, ordinances, permits and the Contract Documents and shall not unreasonably encumber the site with materials or equipment. § 3.14 CUTTING AND PATCHING § 3.14.1 The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit together properly. § 3.14.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed construction of the Owner or separate contractors by cutting, patching or otherwise altering such construction, or by excavation. The Contractor shall not cut or otherwise alter such construction by the Owner or a separate contractor except with written consent of the Owner and of such separate contractor; such consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the Owner or a separate contractor the Contractor's consent to cutting or otherwise altering the Work. § 3.15 CLEANING UP § 3.15.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. At completion of the Work, the Contractor shall remove from and about the Project waste materials, rubbish, the Contractor's tools, construction equipment, machinery and surplus materials. § 3.15.2 If the Contractor fails to clean up as provided in the Contract Documents, the Owner may do so and the cost thereof shall be charged to the Contractor. AIA Document A201 TM —1997. Copyright 0 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIAe Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIAe Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the 16 / maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12/10/2008 under Order No.1 0003754551 which Expires on 1012012009, and is not for resale. User Notes: (3925236195) § 3.16 ACCESS TO WORK § 3.16.1 The Contractor shall provide the Owner and Architect access to the Work in preparation and progress wherever located. § 3.17 ROYALTIES, PATENTS AND COPYRIGHTS § 3.17.1 The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for infringement of copyrights and patent rights and shall hold the Owner and Architect harmless from loss on account thereof, but shall not be responsible for such defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is required by the Contract Documents or where the copyright violations are contained in Drawings, Specifications or other documents prepared by the Owner or Architect. However, if the Contractor has reason to believe that the required design, process or product is an infringement of a copyright or a patent, the Contractor shall be responsible for such loss unless such information is promptly furnished to the Architect. § 3.18 INDEMNIFICATION § 3.18.1 To the fullest extent permitted by law and to the extent claims, damages, losses or expenses are not covered by Project Management Protective Liability insurance purchased by the Contractor in accordance with Section 11.3, the Contractor shall indemnify and hold harmless the Owner, Architect, Architect's consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), but only to the extent caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Section 3.18. § 3.18.2 In claims against any person or entity indemnified under this Section 3.18 by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under Section 3.18.1 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a Subcontractor under workers' compensation acts, disability benefit acts or other employee benefit acts. ARTICLE 4 ADMINISTRATION OF THE CONTRACT § 4.1 ARCHITECT 4.1.1 The Architect is the person lawfully licensed to practice architecture or an entity lawfully practicing architecture identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Architect" means the Architect or the Architect's authorized representative. § 4.1.2 Duties, responsibilities and limitations of authority of the Architect as set forth in the Contract Documents shall not be restricted, modified or extended without written consent of the Owner, Contractor and Architect. Consent shall not be unreasonably withheld. § 4.1.3 If the employment of the Architect is terminated, the Owner shall employ a new Architect against whom the Contractor has no reasonable objection and whose status under the Contract Documents shall be that of the former Architect. § 4.2 ARCHITECT'S ADMINISTRATION OF THE CONTRACT § 4.2.1 The Architect will provide administration of the Contract as described in the Contract Documents, and will be an Owner's representative (1) during construction, (2) until final payment is due and (3) with the Owner's concurrence, from time to time during the one-year period for correction of Work described in Section 12.2. The Architect will have authority to act on behalf of the Owner only to the extent provided in the Contract Documents, unless otherwise modified in writing in accordance with other provisions of the Contract. § 4.2.2 The Architect, as .a representative of the Owner, will visit the site at intervals appropriate to the stage of the Contractor's operations (1) to become generally familiar with and to keep the Owner informed about the progress and quality of the portion of the Work completed, (2) to endeavor to guard the Owner against defects and Init. AtA Document A201 Ta —1997. Copyright 01911,1915,1918, 1925, 1937,1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA* Document is protected by U.S. Copyright Law and International Treaties. Unauthorized t7 reproduction or distribution of this AIAe Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 14:41.00 on 12/10/2008 under Order No.1000375455 1 which expires on 10/20/2009, and is not for resale. (3925236195) User Notes: deficiencies in the Work, and (3 ) to determine in general if the Work is being performed in a manner indicating that the Work, when fully completed, will be in accordance with the Contract Documents. However, the Architect will not be required to make exhaustive or continuous on -site inspections to check the quality or quantity of the Work. The Architect will neither have control over or charge of, nor be responsible for, the construction means, methods, techniques, sequences or procedures, or for the safety precautions and programs in connection with the Work, since these are solely the Contractor's rights and responsibilities under the Contract Documents, except as provided in Section 3.3.1. § 4.2.3 The Architect will not be responsible for the Contractor's failure to perform the Work in accordance with the requirements of the Contract Documents. The Architect will not have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or any other persons or entities performing portions of the Work. § 4.2.4 Communications Facilitating Contract Administration. Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall endeavor to communicate with each other through the Architect about matters arising out of or relating to the Contract. Communications by and with the Architect's consultants shall be through the Architect. Communications by and with Subcontractors and material suppliers shall be through the Contractor. Communications by and with separate contractors shall be through the Owner. § 4.2.5 Based on the Architect's evaluations of the Contractor's Applications for Payment, the Architect will review and certify the amounts due the Contractor and will issue Certificates for Payment in such amounts. § 4.2.6 The Architect will have authority to reject Work that does not conform to the Contract Documents. Whenever the Architect considers it necessary or advisable, the Architect will have authority to require inspection or testing of the Work in accordance with Sections 13.5.2 and 135.3, whether or not such Work is fabricated, installed or completed. However, neither this authority of the Architect nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Architect to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees, or other persons or entities performing portions of the Work. § 4.2.7 The Architect will review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents. The Architect's action will be taken with such reasonable promptness as to cause no delay in the Work or in the activities of the Owner, Contractor or separate contractors, while allowing sufficient time in the Architect's professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Architect's review of the Contractor's submittals shall not relieve the Contractor of the obligations under Sections 3.3, 3.5 and 3.12. The Architect's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Architect, of any construction means, methods, techniques, sequences or procedures. The Architect's approval of a specific item shall not indicate approval of an assembly of which the item is a component. § 4.2.8 The Architect will prepare Change Orders and Construction Change Directives, and may authorize minor changes in the Work as provided in Section 7.4. § 4.2.9 The Architect will conduct inspections to determine the date or dates of Substantial Completion and the date of final completion, will receive and forward to the Owner, for the Owner's review and records, written warranties and related documents required by the Contract and assembled by the Contractor, and will issue a final Certificate for Payment upon compliance with the requirements of the Contract Documents. § 4.2.10 If the Owner and Architect agree, the Architect will provide one or more project representatives to assist in carrying out the Architect's responsibilities at the site. The duties, responsibilities and limitations of authority of such project representatives shall be as set forth in an exhibit to be incorporated in the Contract Documents. Init. AIA Document A201 TM —1997. Copyright 0 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 198 r7 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIO Document Is protected by U.S. Copyright Law and International Treaties. Unauthorizsd 18 reproduction or distribution of this AIAe Document, or any portion of 1% may result in severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12/10/2008 under Order No.1 0003754551 which expires on 10,120,12009, and is not for resale. (3925236195) User Notes: § 4.2.11 The Architect will interpret and decide matters concerting performance under and requirements of, the Contract Documents on written request of either the Owner or Contractor. The Architect's response to such requests will be made in writing within any time limits agreed upon or otherwise with reasonable promptness. If no agreement is made concerning the time within which interpretations required of the Architect shall be furnished in compliance with this Section 4.2, then delay shall not be recognized on account of failure by the Architect to furnish such interpretations until 15 days after written request is made for them. § 4.2.12 Interpretations and decisions of the Architect will be consistent with the intent of and reasonably inferable from the Contract Documents and will be in writing or in the form of drawings. When making such interpretations and initial decisions, the Architect will endeavor to secure faithful performance by both Owner and Contractor, will not show partiality to either and will not be liable for results of interpretations or decisions so rendered in good faith. § 4.2.13 The Architect's decisions on matters relating to aesthetic effect will be final if consistent with the intent expressed in the Contract Documents. § 4.3 CLAIMS AND DISPUTES § 4.3.1 Definition. A Claim is a demand or assertion by one of the parties seeking, as a matter of right, adjustment or interpretation of Contract terms, payment of money, extension of time or other relief with respect to the terms of the Contract. The term "Claim" also includes other disputes and matters in question between the Owner and Contractor arising out of or relating to the Contract. Claims must be initiated by written notice. The responsibility to substantiate Claims shall rest with the party making the Claim. § 4.3.2 Time Limits on Claims. Claims by either party must be initiated within 21 days after occurrence of the event giving rise to such Claimor within 21 days after the claimant first recognizes the condition giving rise to the Claim, whichever is later. Claims must be initiated by written notice to the Architect and the other party. § 4.3.3 Continuing Contract Performance. Pending -final resolution of a Claim except as otherwise agreed in writing or as provided in Section 9.7.1 and Article 14, the Contractor shall proceed diligently with performance of the Contract and the Owner shall continue to make payments in accordance with the Contract Documents. § 4.3.4 Claims for Concealed or Unknown Conditions. If conditions are encountered at the site which are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then notice by the observing party shall be given to the other party promptly before conditions are disturbed and in no event later than 21 days after fast observance of the conditions. The Architect will promptly investigate such conditions and, if they differ materially and cause an increase or decrease in -the Contractor's cost of, or time required for, performance of any part of the Work, will recommend an equitable adjustment in the Contract Sum or Contract Time, or both. if the Architect determines that the conditions at the site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified, the Architect slush so notify the Owner and Contractor in writing, stating the reasons. Claims by either party in opposition to such determination must be made within 21 days after the Architect has given notice of the decision. If the conditions encountered are materially different, the Contract Sum and Contract Time shall be equitably adjusted, but if the Owner and Contractor cannot agree on an adjustment in the Contract Sum or Contract Time, the adjustment shall be referred to the Architect for initial determination, subject to further proceedings pursuant to Section 4.4. § 4.3.5 Claims for Additional Cost. If the Contractor wishes to make Claim for an increase in the Contract Sum, written notice as provided herein shall be given before proceeding to execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property arising under Section 10.6. § 4.3X If the Contractor believes additional cost is involved for reasons including but not limited to (1) a written interpretation from the Architect, (2) an order by the Owner to stop the Work where the Contractor was not at fault, (3) a written order for a minor change in the Work issued by the Architect, (4) failure of payment by the Owner, (5) termination of the Contract by the Owner, (6) Owner's suspension or (7) other reasonable grounds, Claim shall be filed in accordance with this Section 4.3. AIA Document A201 T —1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized 19 reproduction or distribution of this AIA® Document, or any portion of It, may result in severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 1?J10/2008 under Order No.1000375455 1 which expires on 10,2012009, and is not to,-, esals. User Notes: (3925236195) § 4.3.7 Claims for Additional Time § 4.3.7.1 If the Contractor wishes to make Claim for an increase in the Contract Time, written notice as provided herein shall be given. The Contractor's Claim shall include an estimate of cost and of probable effect of delay on progress of the Work. In the case of acontinuing delay only one Claim is necessary. § 4.3.7.2 If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time, could not have been reasonably anticipated and -had an adverse effect on the scheduled construction. § 4.3.8 Injury or Damage to Person or Property. If either party to the Contract suffers injury or damage to person or property because of an act or omission of the other party, or of others for whose acts such party is legally responsible, written notice of such injury or damage, whether or not insured, shall be given to the other party within a reasonable time not exceeding 21 days after discovery. The notice shall provide sufficient detail to enable the other party to investigate the matter. § 4.3.9 If unit prices are stated in the Contract Documents or subsequently agreed upon, and if quantities originally contemplated are materially changed in a proposed Change Order or Construction Change Directive so that application of such unit prices to quantities of Work proposed will cause substantial inequity to the Owner or Contractor, the applicable unit prices shall be equitably adjusted. § 4.3.10 Claims for Consequential Damages. The Contractor and Owner waive Claims against each other for consequential damages arising out of or relating to this Contract This mutual waiver includes: .1 damages incurred by the Owner for rental expenses, for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons; and 2 damages incurred by the Contractor for principal office expenses including the compensation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit except anticipated profit arising directly from the Work. This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination in accordance with Article 14. Nothing contained in this Section 4.3.10 shall be. deemed to preclude an award of liquidated direct damages, when applicable, in accordance with the requirements of the Contract Documents. § 4.4 RESOLUTION OF CLAIMS AND DISPUTES § 4.4.1 Decision of Architect. Claims, including those alleging an error or omission by the Architect but excluding those arising under Sections 10.3 through 10.5, shall be referred initially to the Architect for decision. An initial decision by the Architect shall be required as a condition precedent to mediation, arbitration or litigation of all Claims between the Contractor and Owner arising prior to the date final payment is due, unless 30 days have passed after the Claim has been referred to the Architect with no decision having been rendered by the Architect. The Architect will not decide disputes between the Contractor and persons or entities other than the Owner. § 4.4.2 The Architect will review Claims and within ten days of the receipt of the Claim take one or more of the following actions: (1) request additional supporting data from the claimant or a response with supporting data from the other party, (2) reject the Claim in whole or in part, (3) approve the Claitii (4) suggest a compromise, or (5) advise the parties that the Architect is unable to resolve the Claim if the Architect lacks sufficient information to evaluate the merits of the Claim or if the Architect concludes that, in the Architect's sole discretion, it would be inappropriate for the Architect to resolve the Claim. § 4A.3 In evaluating Claims, the Architect may, but shall not be obligated to, consult with or.seek information from either party or from persons with special knowledge or expertise who may assist the Architect in rendering a decision. The Architect may request the Owner to authorize retention of such persons at the Owner's expense. § 4A.4 If the Architect requests a party to provide a response to a Claim or to furnish additional supporting data, such party shall respond, within ten days after receipt of such request, and shall either provide a response on the requested supporting data, advise the Architect when the response or supporting data will be furnished or advise the Architect that no supporting data will be furnished. Upon receipt of the response or supporting data, if any, the Architect will either reject or approve the Claim in whole or in part. Init. AIA Document A201 TM —1997. Copyright 0 1911,1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by 1 he American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 20 reproduction or distribution of this AIA® Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12/10/2008 under Order No.1.000375455_1 which expires on 10/20/2009, and is not for resale. (3925236195) User Notes: § 4.4.5 The Architect will approve or reject Claims by written decision, which shall state the reasons therefor and which shall notify the parties of any change in the Contract Sum or Contract Time or both. The approval or rejection of a Claim by the Architect shall be final and binding on the parties but subject to mediation and arbitration. § 4.4.6 When a written decision of the Architect states that (1) the decision is filial but subject to mediation and arbitration and (2) a demand for arbitration of a Claim covered by such decision must be made within 30 days after the date on which the party making the demand receives the final written decision, then failure to demand arbitration within said 30 days' period shall result in the Architect's decision becoming final and binding upon the Owner and Contractor. If the Architect renders a decision after arbitration proceedings have been initiated, such decision may be entered as evidence, but shall not supersede arbitration proceedings unless the decision is acceptable to all parties concerned. § 4.4.7 Upon receipt of a Claim against the Contractor or at any time thereafter, the Architect or the Owner may, but is not obligated to, notify the surety, if any, of the nature and amount of the Claim. If the Claim relates to a possibility of a. Contractor's default,. the Architect or the Owner may, but is not obligated to, notify the surety and request the surety's assistance in resolving the controversy. § 4.4.8 If a Claim relates to or is the subject of a mechanic's lien, the party asserting such Claim may proceed in accordance with applicable law to comply with the lien notice or filing deadlines prior to resolution of the Claim by the Architect, by mediation or by arbitration. § 4.5 MEDIATION § 4.5.1 Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived as provided for in Sections 4.3.10, 9.10.4 and 9.10.5 shall, after initial decision by the Architect or 30 days after submission of the Claim to the Architect, be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by either party. § 4.5.2 The parties shall endeavor to resolve their Claims by mediation which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect. Request for mediation shall be filed in writing with the other party to the Contract and with the American Arbitration Association. The request may he made concurrently with the filing of a demand for arbitration but, in such event, mediation shall proceed in advance of arbitration or legal or equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. § 4.5.3 The parties shall share the mediator's fee and any filing fees equally. The mediation shall be held in the place where the Project is located, unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. § 4.6 ARBITRATION § 4.6.1 Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived as provided for in Sections 4.3.10, 9.10.4 and 9.10.5, shall, after decision by the Architect or 30 days after submission of the Claim to the Architect, be subject to arbitration. Prior to arbitration, the parties shall endeavor to resolve disputes by mediation in accordance with the provisions of Section 4.5. § 4.6.2 Claims not resolved by mediation shall be decided by arbitration which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect. The demand for arbitration shall be filed in writing with the other party to the Contract and with the American Arbitration Association, and a copy shall be filed with the Architect. § 4.6.3 A demand for arbitration shall be made within the time limits specified in Sections 4.4.6 and 4.6.1 as applicable, and in other cases within a reasonable time after the Claim has arisen, and in no event shall it be made after the date when institution of legal or equitable proceedings based on such Claim would be barred by the applicable statute of limitations as determined pursuant to Section 13.7. Init. AIA Document A201TM —1997. Copyright m 1911, 1915, 191a, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1991py i ne Amencan Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized 21 reproduction or distribution of this AIA° Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12/10/2008 under Order No.1000375455_1 which expires on 1012012009, and is not for resale. (3925236195) User Notes: § 4.6.4 Liiniiation on Consolidation or Joinder. No arbitration arising out of or relating to the Contract shall include, by consolidation or joinder or in any other manner, the Architect, the Architect's employees or consultants, except by written consent containing specific reference to the Agreement and signed by the Architect, Owner, Contractor and any other person or entity sought to be joined. No arbitration shall include, by consolidation or joinder or in any other manner, parties other than the Owner, Contractor, a separate contractor as described in Article 6 and other persons substantially involved in a common question of fact or law whose presence is required if complete relief is to be accorded in arbitration. No person or entity other than the Owner, Contractor or a separate contractor as described in Article 6 shall be included as an original third party or additional third.party to an arbitration whose interest or responsibility is insubstantial. Consent to arbitration involving an additional person or entity shall not constitute consent to arbitration of a Claim not described therein or with a person or entity not named or described therein. The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly consented to by parties to the Agreement shall be specifically enforceable under applicable law in any court having jurisdiction thereof. § 4.6.5 Claims and Timely Assertion of Claims. The party filing a notice of demand for arbitration must assert in the demand all Claims then known to that party on which arbitration is permitted to be demanded. § 4.6.6 Judgment on Final Award. The award rendered b_v the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. ARTICLE 5 SUBCONTRACTORS § 5.1 DEFINITIONS § 5.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion of the Work at the site. The term "Subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor. § 5.1.2 A Sub -subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the Work at the site. The term "Sub -subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Sub -subcontractor or an authorized representative of the Sub - subcontractor. § 5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK § 5.2.1 Unless otherwise stated in the Contract Documents or the bidding requirements, the Contractor, as soon as practicable after award of the Contract, shall furnish in writing to the Owner through the Architect the names of persons or entities (including those who are to furnish materials or equipment fabricated to a special design) proposed for each principal portion of the Work. The Architect will promptly reply to the Contractor in writing stating whether or not the Owner or the Architect, after due investigation, has reasonable objection to any such proposed person or entity. Failure of the Owner or Architect to reply promptly shall constitute notice of no reasonable objection. § 5.2.2 The Contractor shall not contract with a proposed person or entity to whom the Owner or Architect has made reasonable and timely objection. The Contractor shall not be required to contract with anyone to whom the Contractor has made reasonable objection. § 5.2.3 If the Owner or Architect has reasonable objection to a person or entity proposed by the Contractor, the Contractor shall propose another to whom the Owner or Architect has no reasonable objection. If the proposed but rejected Subcontractor was reasonably capable of performing the Work, the Contract Sum and Contract Time shall be increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order shall be issued before commencement of the substitute Subcontractor's Work. However, no increase in the Contract Sum or Contract Time shall be allowed for such change unless the Contractor has acted promptly and responsively in submitting names as required. § 5.2.4 The Contractor shall not change a Subcontractor, person or entity previously selected if the Owner or Architect makes reasonable objection to such substitute. AIA Document A201 T —1997. Copyright® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This A10 Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 22 reproduction or distribution of this AIAe Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12/10/2008 under Order No.1 0003754551 which expires on 10,20/2009, and is not for re,ale. User Notes: (3925236195) § 5,3 SUBCONTRACTUAL RELATIONS § 5.3.1 By appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities, including the responsibility for safety of the Subcontractor's Work, which the Contractor, by these Documents, assumes toward the Owner and Architect. Each subcontract agreement shall preserve and protect the rights of the Owner and Architect under the Contract Documents with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights, and shall allow to the Subcontractor, unless specifically provided otherwise in the subcontract agreement, the benefit of all rights, remedies and redress against the Contractor that the Contractor, by the Contract Documents, has against the Owner. Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with Sub -subcontractors. The Contractor shall make available to each proposed Subcontractor, prior to the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor will be bound, and, upon written request of the Subcontractor, identify to the Subcontractor terms and conditions of the proposed subcontract agreement which may be at variance with the Contract Documents. Subcontractors will similarly make copies of applicable portions of such documents available to their respective proposed Sub -subcontractors. § 5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS § 5.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the Owner provided that: 1 assignment is effective only after termination of the Contract by the Owner for cause pursuant to Section 14.2 and only for those subcontract agreements which the Owner accepts by notifying the Subcontractor and Contractor in writing; and .2 assignment is subject to the prior rights of the surety, if any, obligated under bond relating to the Contract. § 5.4.2 Upon such assignment, if the Work has been suspended for more than 30 days, the Subcontractor's compensation shall be equitably adjusted for increases in cost resulting from the suspension. ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS § 6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS § 6.1.1 The Owner reserves the right to perform construction or operations related to the Project with the Owner's own forces, and to award separate contracts in connection with other portions of the Project or other construction or operations on the site under Conditions of the Contract identical or substantially similar to these including those portions related to insurance and waiver of subrogation. If the Contractor claims that delay or additional cost is involved because of such action by the Owner, the Contractor shall make such Claim as provided in Section 4.3. § 6.1.2 When separate contracts are awarded for different portions of the Project or other construction or operations on the site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate Owner -Contractor Agreement. § 6.1.3 The Owner shall provide for coordination of the activities of the Owner's own forces and of each separate contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall participate with other separate contractors and the Owner in reviewing their construction schedules when directed to do so. The Contractor shall make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement. The construction schedules shall then constitute the schedules to be used by the Contractor, separate contractors and the Owner until subsequently revised. § 6.1.4 Unless otherwise provided in the Contract Documents, when the Owner performs construction or operations related to the Project with the Owner's own forces, the Owner shall be deemed to be subject to the same obligations and to have the same rights which apply to the Contractor under the Conditions of the Contract, including, without excluding others, those stated in Article 3, this Article 6 and Articles 10, 11 and 12. § 6.2 MUTUAL RESPONSIBILITY § 6.2.1 The Contractor shall afford the Owner and separate contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities, and shall connect and coordinate the Contractor's construction and operations with theirs as required by the Contract Documents. tnet. A1A Document A201 TO —1997. Copyright ®1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American institute of Architects. All rights reserved. WARNING: This Ale Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 23 reproduction or distribution of this A10 Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12/10/2008 under Order No.1000375455_1 which expires on 10120/2009, and is not for resale. (3925236195) User Notes: § 6.2.2 If part of the Contractor's Work depends for proper execution or results upon construction or operations by the Owner or a separate contractor, the Contractor shall, prior to proceeding with that portion of the Work, promptly report to the Architect apparent discrepancies or defects in such other construction that would render it unsuitable for such proper execution and results. Failure of the Contractor so to report shall constitute an acknowledgment that the Owner's or separate contractor's completed or partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not then reasonably discoverable. § 6.2.3 The Owner shall be reimbursed by the Contractor for costs incurred by the Owner which are payable to a separate contractor because of delays, improperly timed activities or defective construction of the Contractor. The Owner shall be responsible to the Contractor for costs incurred by the Contractor because of delays, improperly timed activities, damage to the Work or defective construction of a separate contractor. § 6.2.4 The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially completed construction or to property of the Owner or separate contractors as provided in Section 10.2.5. § 6.2.5 The Owner and each separate contractor shall have the same responsibilities for cutting and patching as are described for the Contractor in Section 3.14. § 6.3 OWNER'S RIGHT TO CLEAN UP § 6.3.1 If a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish, the Owner may clean up and the Architect will allocate the cost among those responsible. ARTICLE 7 CHANGES IN THE WORK § 7.1 GENERAL § 7.1.1 Changes in the Work may be accomplished after execution of the Contract, and without invalidating the Contract, by Change Order, Construction Change Directive or order for a minor change in the Work, subject to the limitations stated in this Article 7 and elsewhere in the Contract Documents. § 7.1.2 A Change Order shall be based upon agreement among the Owner, Contractor and Architect; a Construction Change Directive requires agreement by the Owner and Architect and may or may not be agreed to by the Contractor; an order for a minor change in the Work may be issued by the Architect alone. § 7.1.3 Changes in the Work shall be performed under applicable provisions of the Contract Documents, and the Contractor shall proceed promptly, unless otherwise provided in the Change Order, Construction Change Directive or order for a minor change in the Work. § 7.2 CHANGE ORDERS § 7.2.1 A Change Order is a written instrument prepared by the Architect and signed by the Owner, Contractor and Architect, stating their agreement upon all of the following: .1 change in the Work; .2 the amount of the adjustment, if any, in the Contract Sum; and .3 the extent of the adjustment, if any, in the Contract Time. § 7.2.2 Methods used in determining adjustments to the Contract Sum may include those listed in Section 7.3.3. § 7.3 CONSTRUCTION CHANGE DIRECTIVES § 7.3.1 A Construction Change Directive is a written order prepared by the Architect and signed by the Owner and Architect, directing a change in the Work prior to agreement on adjustment, if any, in the Contract Sum or Contract Time, or both. The Owner may by Construction Change Directive, without invalidating the Contract, order changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions, the Contract Sum and Contract Time being adjusted accordingly. § 7.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change Order. AIA Document A201 Tc —17. Copyright � 19 i 1, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized 24 reproduction or distribution of this AIA® Document, or any portion of if, may result In severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12/10/2008 under Order No.1000375455_1 which expires on 10120,12009, and is not for resale. (3925236195) User Notes: § 7.3.3 If the Construction Change Directive provides for an adjustment to the Contract Surn, the adjustment shall be based on one of the following methods: .1 mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation; .2 unit prices stated in the Contract Documents or subsequently agreed upon; .3 cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee; or .4 as provided in Section 7.3.6. § 7.3.4 Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the change in the Work involved and advise the Architect of the Contractor's agreement or disagreement with the method, if any, provided in the Construction Change Directive for determining the proposed adjustment in the Contract Sum or Contract Time. § 7.3.5 A Construction Change Directive signed by the Contractor indicates the agreement of the Contractor therewith, including adjustment in Contract Sum and Contract Time or the method for determining them. Such agreement shall be effective immediately and shall be recorded as a Change Order. § 7.3.6 If the Contractor does not respond promptly or disagrees with the method for adjustment in the Contract Sum, the :method and the adjustment shall be determined by the Architect on the basis of reasonable expenditures and savings of those performing the Work attributable to the change, including, in case of an increase in the Contract Sum, a reasonable allowance for overhead and profit. In such case, and also under Section 7.3.3.3, the Contractor shall keep and present, in such form as the Architect may prescribe, :an itemized accounting together with appropriate supporting data. Unless otherwise provided in the Contract Documents, costs for the purposes of this Section 7.3.6 shall be limited to the following: .1 costs of labor, including social security, old age and unemployment insurance, fringe benefits required by agreement or custom, and workers' compensation insurance; .2 costs of materials, supplies and equipment, including cost of transportation, whether incorporated or consumed; .3 rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Contractor or others; costs of premiums for all bonds and insurance, permit fees, and sales, use or similar taxes related to the Work; and additional costs of supervision and field office personnel directly attributable to the change. § 7.3.7 The amountof credit to be allowed by the .Contractor to the Owner for a deletion or change which results in a net decrease in the Contract Sum shall be actual net cost as confirmed by the Architect. When both additions and credits covering related Work or substitutions are involved in a change, the allowance for overhead and profit shall be figured on the basis of net increase, if any, with respect to that change. § 7.3.8 Pending fmaI determination of the total cost of a Construction Change Directive to the Owner, amounts not in dispute for such changes in the Work shall be included in Applications for Payment accompanied by a Change Order indicating the parties' agreement with part or all of such costs. For any portion of such cost that remains in dispute, the Architect will make an interim determination for purposes of monthly certification for payment for those costs. That determination of cost.shall adjust the Contract Sum on .the same basis as a Change Order, subject to the right of either party to disagree and assert a claim in accordance with Article 4. § 7.3.9 When the Owner and Contractor agree with the determination made by the Architect concerning the adjustments in the Contract Sum and Contract Time, or otherwise reach agreement upon the adjustments, such agreement shall be effective immediately and shall be recorded by preparation and execution of an appropriate Change Order. § 7.4 MINOR CHANGES IN THE WORK § 7.4.1 The Architect will have authority to order minor changes in the Work not involving adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes shall be effected by written order and shall be binding on the Owner and Contractor. The Contractor shall carry out such written orders promptly. tne1. AIA Document A201 TM —1997. Copyright® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized 25 reproduction or distribution of this AIA® Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 14,.41:00 on 12/10/2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (3925236195) ARTICLE 8 TIME § 8.1 DEFINITIONS § 8.1.1 Unless otherwise provided, Contract Time is the period of time, including authorized adjustments, allotted in the Contract Documents for Substantial Completion of the Work. § 8.1.2 The date of commencement of the Work is the date established in the Agreement. § 8.1.3 The date of Substantial Completion is the date certified by the Architect in accordance with Section 9.8. § 8.1.4 The term "day" as used in the Contract Documents shall mean calendar day unless otherwise specifically defined. § 8.2 PROGRESS AND COMPLETION § 8.2.1 Time limits stated in the Contract Documents are of the essence of the Contract. By executing the Agreement the Contractor confirms that the Contract Time is a. reasonable period for performing the Work. § 8.2.2 The Contractor shall not knowingly, except by agreement or instruction of the Owner in writing, prematurely commence operations on the site or elsewhere prior to the effective date of insurance required by Article 11 to be furnished by the Contractor and Owner. The date of commencement of the Work shall not be changed by the effective date of such insurance. Unless the date of commencement is established by the Contract Documents or a notice to proceed given by the Owner, the Contractor shall notify the Owner in writing not less than five days or other agreed period before commencing the Work to permit the timely filing of mortgages, mechanic's liens and other security interests. § 8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantial Completion within the Contract Time. § 8.3 DELAYS AND EXTENSIONS Of TIME § 8.3.1 If the Contractor is delayed at any time in the commencement or progress of the Work by an act or neglect of the Owner or Architect, or of an employee of either, or of a separate contractor employed by the Owner, or by changes ordered in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond the Contractor's control, or by delay authorized by the Owner pending mediation and arbitration, or by other causes which the Architect determines may justify delay, then the Contract Time shall be extended by Change Order for such reasonable time as the Architect may determine. § 8.3.2 Claims relating to time shall be made in accordance with applicable provisions of Section 4.3. § 8.3.3 This Section 8.3 does not preclude recovery of damages for delay by either party under other provisions of the Contract Documents. ARTICLE 9- PAYMENTS AND COMPLETION § 9.1 CONTRACT SUM § 9.1.1 The Contract Sum is stated in the Agreement and, including authorized adjustments, is the total amount payable by the Owner to the Contractor for performance of the Work under the Contract Documents. § 9.2 SCHEDULE OF VALUES § 91.1 Before the first Application for Payment, the Contractor shall submit to the Architect a schedule of values allocated to various portions of the Work, prepared in such form and supported by such data to substantiate its accuracy as the Architect may require. This schedule, unless objected to by the Architect, shall be used as a basis for reviewing the Contractor's Applications for Payment. § 9.3 APPLICATIONS FOR PAYMENT § 9.3.1 At least ten days before the date established for each progress payment, the Contractor shall submit to the Architect an itemized Application for Payment for operations completed in accordance with the schedule of values. Such application shall be notarized, if required, and supported by such data substantiating the Contractor's right to {nit. AIA Document A201� —1997. Copyright© 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright law and International Treaties. Unauthorized 26 reproduction or distribution of this AIA® Document, or any portion of It, may result in severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12/10/2008 under Order NoAGW375455_1 which expires on 10,12012009, and is not for resale. (3925236195) User Notes: payment as the Owner or Architect may require, such as copies of requisitions from Subcontractors and material suppliers, and reflecting retainage if provided for in the Contract Documents. § 9.3.1.1 As provided in Section 7.3.8. such applications may include requests for payment on account of changes in the Work which have been properly authorized by Construction Change Directives, or by interim determinations of the Architect, but not yet included in Change Orders. § 9.3.1.2 Such applications may not include requests for payment for portions of the Work for which the Contractor does not intend to pay. to a Subcontractor or material supplier, unless such Work has been performed by others whom the Contractor intends to pay. § 9.32 Unless otherwise provided in the Contract Documents, payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If approved in advance by the Owner, payment may similarly be made for materials and equipment suitably stored off the site at a location agreed upon in writing. Payment for materials and equipment stored on or off the site shall be conditioned upon compliance by the Contractor with procedures satisfactory to the Owner to establish the Owner's title to such materials and equipment or otherwise protect the Owner's interest, and shall include the costs of applicable insurance, storage and transportation to the site for such materials and equipment stored off the site. § 9.3.3 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the Owner no later than the time of payment. The Contractor further warrants that upon submittal of an Application for Payment all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall, to the best of the Contractor's knowledge, information and belief, be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other persons or entities making a claim by reason of having provided labor, materials and equipment relating to the Work. § 9.4 CERTIFICATES FOR PAYMENT § 9.4.1 The Architect will, within seven days after receipt of the Contractor's Application for Payment, either issue to the Owner a Certificate for Payment, with a copy to the Contractor, for such amount as the Architect determines is properly due, or notify the Contractor and Owner in writing of the Architect's reasons for withholding certification in whole or in part as provided in Section 9.5-1. § 9.4.2 The issuance of a Certificate for Payment will constitute a representation by the Architect to the Owner, based on the Architect's evaluation of the Work and the data comprising the Application for Payment, that the Work has progressed to the point indicated and that, to the best of the Architect's knowledge, information and belief, the quality of the Work is in accordance with the Contract Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests and inspections, to correction of minor deviations from the Contract Documents prior to completion and to specific qualifications expressed by the Architect. The issuance of a Certificate for Payment will further constitute a representation that the Contractor is entitled to payment in the amount certified. However, the issuance of a Certificate for Payment will not be a representation that the Architect has (1) made exhaustive or continuous on - site inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the Owner to substantiate the Contractor's right to payment, or (4) made examination to ascertain how or for what purpose the Contractor has used money previously paid on account of the Contract Sum § 9.5 DECISIONS TO WITHHOLD CERTIFICATION § 9.5.1 The Architect may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the Owner, if in the Architect's opinion the representations to the Owner required by Section 9.4.2 cannot be made. If the Architect is unable to certify payment in the amount of the Application, the Architect will notify the Contractor and Owner as provided in Section 9.4.1. If the Contractor and Architect cannot agree on a revised amount, the Architect will promptly issue a Certificate for Payment for the amount for which the Architect is able to make such representations to the Owner. The Architect may also withhold a Certificate for Payment or, because of subsequently discovered evidence, may nullify the whole or apart of a Certificate for Payment previously issued, to such extent as may be necessary in the Architect's opinion to protect the Owner from loss for which the Contractor is responsible, including loss resulting from acts and omissions described in Section 3.3.2, because of .1 defective Work not remedied; Init. AIA Document A201 TM —1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by i he American Institute of Architects. All rights reserved. WARNING: This AIAe Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized 27 reproduction or distribution of this AIA® Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the J maximum extent possible under the law. This document was produced by AlAsottware at 14.41.00 on 12/10/2008 under Order No.1000375455-1 which expires on 10,120,12009, and is not for resale. User Notes: (3925236195) .2 third party claims filed or reasonable evidence indicating probable filing of such claims unless security acceptable to the Owner is provided by the Contractor; .3 failure of the Contractor to make payments properly to Subcontractors or for labor, materials or equipment; .4 reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; .5 damage to the Owner or another contractor; .6 reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or .7 persistent failure to carry out the Work in accordance with the Contract Documents. § 9.5.2 When the above reasons for withholding certification are removed, certification will be made ;r amounts previously withheld. § 9.6 PROGRESS PAYMENTS § 9.6.1 After the Architect has issued a Certificate for Payment, the Owner shall make payment in the manner and within the time provided in the Contract Documents, and shall so notify the Architect. § 9.6.2 The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the Owner, out of the amount paid to the Contractor on account of such Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on account of such Subcontractor's portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to .Sub -subcontractors in a similar manner. § 9.6.3 The Architect will, on request, furnish to a Subcontractor, if practicable, information regarding percentages of completion or amounts applied for by the Contractor and action taken thereon by the Architect and Owner on account of portions of the Work done by such Subcontractor. § 9.6.4 Neither the Owner nor Architect shall have an obligation to pay or to see to the payment of money to a Subcontractor except as may otherwise be required by law. § 9.6.5 Payment to material suppliers shall be treated in a manner similar to that provided in Sections 9.6.2, 9.6_3 and 9.6.4. § 9.6.6 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the Owner shall not constitute acceptance of Work not in accordance with the Contract Documents. § 9.6.7 Unless the Contractor provides the Owner with a payment bond in the full penal sum of the Contract Sum, payments received by the Contractor for Work properly performed by Subcontractors and suppliers shall be held by the Contractor for those Subcontractors or suppliers who performed Work or furnished materials, or both, under contract with the Contractor for which payment was made by the Owner. Nothing contained herein shall require money to be placed in.a separate account and not commingled with money of the Contractor, shall create any fiduciary liability or tort liability on the part of the Contractor for breach of trust or shall entitle any person or entity to an award of punitive damages against the Contractor for breach of the requirements of this provision. § 9.7 FAILURE OF PAYMENT § 9.7.1 If the Architect does not issue a Certificate for Payment, through no fault of the Contractor, within seven days after receipt of the Contractor's Application for Payment, or if the Owner does not pay the Contractor within seven days after the date established in the Contract Documents the amount certified by the Architect or awarded by arbitration, then the Contractor may, upon seven additional days' written notice to the Owner and Architect, stop the Work until payment of the amount owing has been received. The Contract Time shall be extended appropriately and the Contract Sum shall be increased by the amount of the Contractor's reasonable costs of shut -down, delay and start-up, plus interest as provided for in the Contract Documents. Init. AIA Document A201 � —1997. Copyright Institute of Architects. All rights reserved. reproduction or distribution of this AIA® maximum extent possible under the law. expires on 10120,12009, and is not for resale. User Notes: 0 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American WARNING: This AIA® Document Is protected by U.S. Copyright Law and international Treaties. Unauthorized 28 Document, or any portion of it, may result In severe civil and criminal penalties, and will be prosecuted to the This document was produced by ALA software at 14:41:00 on 12/10/2008 under Order No.1000375455 1 which (3925236195) § 9.8 SUBSTANTIAL COMPLETION § 9.8.1 Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work for -its intended use. § 9.8.2 When the Contractor considers that the Work, or a portion thereof which the Owner agrees to accept separately, is substantially complete, the Contractor shall prepare and submit to the Architect a comprehensive list of items to be completed or corrected prior to final payment. Failure to include an item on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. § 9.8.3 Upon receipt of the Contractor's list, the Architect will make an inspection to determine whether the Work or designated portion thereof is substantially complete. If the Architect's inspection discloses any item, whether or not included on the Contractor's list, which is not sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work or designated portion thereof for its intended use, the Contractor shall, before issuance of the Certificate of Substantial Completion, complete or correct such item upon notification by the Architect. In such case, the Contractor shall then submit a request for another inspection by the Architect to determine Substantial. Completion. § 9.8.4 When the Work or designated portion thereof is substantially complete, the Architect will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion, shall establish responsibilities of the Owner and Contractor for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time within which the Contractor shall finish all items on the list accompanying the Certificate. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. § 9.8.5 The Certificate of Substantial Completion shall be submitted to the Owner and Contractor for their written acceptance of responsibilities assigned to them in such Certificate. Upon such acceptance and consent of surety, if any, the Owner shall make payment of retainage applying to such Work or designated portion thereof. Such payment shall be .adjusted for Work that is incomplete or not in accordance with the requirements of the Contract Documents. § 9.9 PARTIAL OCCUPANCY OR USE § 9.9.1 The Owner may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement with the Contractor, provided such occupancy or use is consented to by the insurer as required under Section 11.4.1.5 and authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use may commence whether or not the portion is substantially complete, provided the Owner and Contractor have accepted in writing the responsibilities assigned to each of them for payments, retainage, if any, security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Docutnts. When the Contractor considers a portion substantially complete, the Contractor shall prepare and submit a list to the Architect as provided under Section 9.8.2. Consentof the Contractor to partial occupancy or use shall not be unreasonably withheld. The stage of the progress of the Work shall be determined by written agreement between the Owner and Contractor or, if no agreement is reached, by decision of the Architect. § 9.9.2 Irnm diately prior to such partial occupancv or use, the Owner, Contractor and Architect shall jointly inspect the area to be occupied or portion of the Work to be used in order to determine and record the condition of the Work. § 9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. § 9.10 FINAL COMPLETION AND FINAL PAYMENT § 9.10.1 Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Architect will promptly make such inspection and, when the Architect finds the Work acceptable under the Contract Documents and the Contract fully performed, the Architect will promptly issue a final Certificate for Payment stating that to the best of the Architect's knowledge, information and belief, and on the basis of the Architect's on -site visits and inspections, the Work has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance found to be due the Contractor and noted in AIA DocumeM A201 n —1997. Copyright® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIO Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 29 reproduction or distribution of this AKe Document, or any portion of 1% may result In severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12/10/2008 under Order No.1000375455_1 which expires on 10120/2009, and is not for resale. User Notes: (3925236195) the final Certificate is due and payable. The Architect's final Certificate for Payment will constitute a further representation that conditions listed in Section 9.10.2 as precedent to the Contractor's being entitled to final payment have been fulfilled. § 9.10.2 Neither final payment nor any remaining retained percentage shall become due until the Contractor submits to the Architect (1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied, (2) a certificate evidencing that insurance required by the Contract Documents to remain in force after final payment is currently in effect and will not be canceled or allowed to expire until at least 30 days' prior written notice has been given to the Owner, (3) a written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents, (4) consent of surety, if any, to final payment and (5), if required by the Owner, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated by the Owner. If a Subcontractor refuses to furnish a release or waiver required by the Owner, the Contractor may furnish a bond satisfactory to the Owner to indemnify the Owner against such lien. If such lien remains unsatisfied after payments are made, the Contractor shall refund to the Owner all money that the Owner may be compelled to pay in discharging such lien, including all costs and reasonable attorneys' fees. § 9.10.3 If, after Substantial Completion of the Work, final completion thereof is materially delayed through no fault of the Contractor or by issuance of Change Orders affecting final completion, and the Architect so confirms, the Owner shall, upon application by the Contractor and certification by the Architect, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than retainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Architect prior to certification of such payment. Such payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. § 9.10.4 The making of final payment shall constitute a waiver of Claims by the Owner except those arising from: .1 liens, Claims, security interests or encumbrances arising out of the Contract and unsettled; 2 failure of the Work to comply with the requirements of the Contract Documents; or .3 terms of special warranties required by the Contract Documents. § 9.10.5 Acceptance of final payment by the Contractor, a Subcontractor or material supplier shall constitute a waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of final Application for Payment. ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY § 1.11 SAFETY PRECAUTIONS AND PROGRAMS § 10.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract. § 10.2 SAFETY OF PERSONS AND PROPERTY § 10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: .1 employees on the Work and other persons who may be affected thereby; 2 the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub - subcontractors; and .3 other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. § 10.2.2 The Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss. Init. AIA Document A201 TM —1997. Copyright ® 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 30 reproduction or distribution of this AIA® Document, or any portion of 1% may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12(10/2008 under Order No.1000375455 1 which expires on 10,2012009, and is not for resale. User Notes: (3925236195) § 10.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent sites and utilities. § 10.2.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. § 10.2.5 The Contractor shall promptly remedy damage and loss (other than damage or loss insured under property insurance required by the Contract Documents) to property referred to in Sections 10.2.1.2 and 10.2.1.3 caused in whole or in part by the Contractor, a Subcontractor, a Sub -subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which the Contractor is responsible under Sections 10.2.1.2 and 10.2.1.3, except damage or loss attributable to acts or omissions of the Owner or Architect or anyone directly or indirectly employed by either of them, or by anyone for whose acts either of them may be liable, and not attributable to the fault or negligence of the Contractor_ The foregoing obligations of the Contractor are in addition to the Contractor's obligations under Section 3.18. § 10.2.6 The Contractor shall designate a responsible member of the Contractor's organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor's superintendent unless otherwise designated by the Contractor in writing to the Owner and Architect. § 10.2.7 The Contractor shall not load or permit any part of the construction or site to be loaded so as to endanger its safety. § 10.3 HAZARDOUS MATERIALS § 10.3.1 If reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance, including but not limited to asbestos or polychlorinated biphenyl (PCB), encountered on the site by the Contractor, the Contractor shall, upon recognizing the condition, immediately stop Work in the affected area and report the condition to the Owner and Architect in writing. § 10.3.2 The Owner shall obtain the services of a licensed laboratory to verify the presence or absence of the material or substance reported by the Contractor and, in the event such material or substance is found to be present, to verify that it has been rendered harmless. Unless otherwise required by the Contract Documents, the Owner shall furnish in writing to the Contractor and Architect the names and qualifications of persons or entities who are to perform tests verifying the presence or absence of such material or substance or who are to perform the task of removal or safe containment of such material or substance. The Contractor and the Architect will promptly reply to the Owner in writing stating whether or not either has reasonable objection to the persons or entities proposed by the Owner. If either the Contractor or Architect has an objection to a person or entity proposed by the Owner, the Owner shall propose another to whom the Contractor and the Architect have no reasonable objection. When the material or substance has been rendered harmless, Work in the affected area shall resume upon written agreement of the Owner and Contractor. The Contract Time shall be extended appropriately and the Contract Sum shall be increased in the amount of the Contractor's reasonable additional costs of shut -down, delay and start-up, which adjustments shall be accomplished as provided in Article 7. § 10.3.3 To the fullest extent permitted by law, the Owner shall indemnify and hold harmless the Contractor, Subcontractors, Architect, Architect's consultants and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work in the affected area if in fact the material or substance presents the risk of bodily injury or death as described in Section 10.3.1 and has not been rendered harmless, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) and provided that such damage, loss or expense is not due to the sole negligence of a party seeking indemnity. § 10A The Owner shall not be responsible under Section 10.3 for materials and substances brought to the site by the Contractor unless such materials or substances were required by the Contract Documents. [nit. Institute Document A201 TM —1997. Copyright ®1911, 1915, 1918, 1925, 1937, 1951, 1956, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized 31 reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12M012008 under Order No.1 D00375455_1 which expires on 10,120,12009, and is not for resale. User Notes: (3925236195) § 10.5 If, without negligence on the part of the Contractor, the Contractor is held liable for the cost of remediation of a hazardous material or substance solely by reason of performing Work as required by the Contract Documents, the Owner shall indemnify the Contractor for all cost and expense thereby incurred. § 10.6 EMERGENCIES § 10.6.1 In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor's discretion, to prevent threatened damage, injury or loss. Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Section 4.3 and Article 7. ARTICLE 11 INSURANCE AND BONDS § 11.1 CONTRACTOR'S LIABILITY INSURANCE § 11.1.1 The Contractor shall purchase from and maintain in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located such insurance as will protect the Contractor from claims set forth below which may arise out of or result from the Contractor's operations under the Contract and for which the Contractor may be legally liable, whether such operations be by the Contractor or by a Subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable: .1 claims under workers' compensation, disability benefit and other similar employee benefit acts which are applicable to the Work to be performed; .2 claims for damages because of bodily ini ury, occupational sickness or disease, or death of the Contractor's employees; .3 claims for damages because of bodily injury, sickness or disease, or death of any person other than the Contractor's employees; .4 claims for damages insured by usual personal injury liability coverage; .5 claims for damages, other than to the Work itself, because of injury to or destruction of tangible property, including loss of use resulting therefrom; .6 claims for damages because of bodily injury, death of a person or property damage arising out of ownership, maintenance or use of a motor vehicle; .7 claims for bodily injury or property damage arising out of completed operations; and .8 claims involving contractual liability insurance applicable to the Contractor's obligations under Section 3.18. § 11.1.2 The insurance required by Section 11.1.1 shall be written for not less than limits of liability specified in the Contract Documents orrequiredby law, whichever coverage is greater. Coverages, whether written on an occurrence or claims -made basis, shall be maintained without interruption from date of commencement of the Work until date of final payment and termination of any coverage required to be maintained after final payment § 11.1.3 Certificates of insurance acceptable to the Owner shall be filed with the Owner prior to commencement of the Work. These certificates and the insurance policies required by this Section 11.1 shall contain a provision that coverages afforded under the policies will not be canceled or allowed to expire until at least 30 days' prior written notice has been given to the Owner. If any of the foregoing insurance coverages are required to remain in -force after final payment and are reasonably available, an additional certificate evidencing continuation of such coverage shall be submitted with the final Application for Payment as required by Section 9.10.2. Information concerning reduction of coverage on account of revised limits or claims paid under the General Aggregate, or both, shall be furnished by the Contractor with reasonable promptness in accordance with the Contractor's information and belief. § 11.2 OWNER'S LIABILITY INSURANCE § 11.2.1 The Owner shall be responsible for purchasing and maintaining the Owner's usual liability insurance. § 11.3 PROJECT MANAGEMENT PROTECTIVE LIABILITY INSURANCE § 11.3.1 Optionally, the Owner may require the Contractor to purchase and maintain Project Management Protective Liability insurance from the Contractor's usual sources as primary coverage for the Owner's, Contractor's and Architect's vicarious liability for construction operations under the Contract. Unless otherwise required by the Contract Documents, the Owner shall reimburse the Contractor by increasing the Contract Sum to pay the cost of purchasing and maintaining such optional insurance coverage, and the Contractor shall not be responsible for purchasing any other liability insurance on behalf of the Owner. The minimum limits of liability purchased with such coverage shall be equal to the aggregate of the limits required for Contractor's Liability insurance under Sections 11.1.12 through 11.1.1.5. lnit AIA Document A201 TM Z-199Copyright ®1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1.966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIAe Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 32 reproduction or distribution of this AIA® Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 14.41:00 on 12/10/2008 underOrder No.1000375455_1 which expires on 10120/2009, and is not for resale. User Notes: (3925236195) § 11.3.2 To the extent damages are covered by Project Management Protective Liability insurance, the Owner, Contractor and Architect waive all rights against each other for damages, except such rights as they may have to the proceeds of such insurance. The policy shall provide for such waivers of subrogation by endorsement or otherwise. § 11.3.3 The Owner shall not require the Contractor to include the Owner, Architect or other persons or entities as additional insureds on the Contractor's Liability Insurance coverage under Section 11.1. § 11.4 PROPERTY INSURANCE § 11.4.1 Unless otherwise provided, the Owner shall purchase and maintain, in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located, property insurance written on a builder's risk "all-risk" or equivalent policy form in the amount of the initial Contract Sum, plus value of subsequent Contract modifications and cost of materials supplied or installed by others, comprising total value for the entire Project at the site on a replacement cost basis without optional deductibles. Such property insurance shall be maintained, unless otherwise provided in the Contract Documents or otherwise agreed in writing by all persons and entities who are beneficiaries of such insurance, until final payment has been made as provided in Section 9.10 or until no person or entity other than the Owner has an insurable interest in the property required by this Section 11.4 to be covered, whichever is later. This insurance shall include interests of the Owner, the Contractor, Subcontractors and Sub - subcontractors in the Project. § 11.4.1.1 Property insurance shall be on an "all-risk" or equivalent policy form and shall include, without limitation, insurance against the perils of fire (with extended coverage) and physical loss or damage including, without duplication of coverage, theft, vandalism, malicious mischief, collapse, earthquake, flood, windstorm, falsework, testing and startup, temporary buildings and debris removal including demolition occasioned by enforcement of any applicable legal requirements, and shall cover reasonable compensation for Architect's and Contractor's services and expenses required as a result of such insured loss. § 11.4.1.2 If the Owner does not intend to purchase such property insurance required by the Contract and with an of the coverages in the amount described above, the Owner shall so inform the Contractor in writing prior to commencement of the Work. The Contractor may then effect insurance which will protect the interests of the Contractor, Subcontractors and Sub -subcontractors in the Work, and by appropriate Change Order the cost thereof shall he charged to the Owner. If the Contractor is damaged by the failure or neglect of the Owner to purchase or maintain insurance as described above, without so notifying the Contractor in writing, then the Owner shall bear all reasonable costs properly attributable thereto. § 11.4.1.3 If the property insurance requires deductibles, the Owner shall pay costs not covered because of such deductibles. § 11.4.1.4 This property insurance shall cover portions of the Work stored off the site, and also portions of the Work in transit. § 11.4.1.5 Partial occupancy or use in accordance with Section 9.9 shall not commence until the insurance company or companies providing property insurance have consented to such partial occupancy or use by endorsement or otherwise. The Owner and the Contractor shall take reasonable steps to obtain consent of the insurance company or companies and shall, without mutual written consent, take no action with respect to partial occupancy or use that would cause cancellation, lapse or reduction of insurance. § 11.4.2 Boiler and Machinery Insurance. The Owner shall purchase and maintain boiler and machinery insurance required by the Contract Documents or by law, which shall specifically cover such insured objects during installation and until final acceptance by the Owner; this insurance shall include interests of the Owner, Contractor, Subcontractors and Sub -subcontractors in the Work, and the Owner and Contractor shall be named insureds. § 11.4.3 Loss of Use Insurance. The Owner, at the Owner's option, may purchase and maintain such insurance as will insure the Owner against loss of use of the Owner's property due to fire or other hazards, however caused. The Owner waives all rights of action against the Contractor for loss of use of the Owner's property, including consequential losses due to fire or other hazards however caused. [nit. AIA Document A201 T1e —1997. Copyright @ 1911, 1915, 1916, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1957 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 33 reproduction or distribution of this AIA' Document, or any portion of 1% may result in severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12/10/2008 under Order No 1000375455-1 which expires on 10,120,12009, and is not for resale. User Notes: (3425236195) § 11.4.4 If the Contractor requests in writing that insurance for risks other than those described herein or other special causes of loss be included in the property insurance policy, the Owner shall, if possible, include such insurance, and the cost thereof shall be charged to the Contractor by appropriate Change Order. § 11.4.5 If during the Project construction period the Owner insures properties, real or personal or both, at or adjacent to the site by property insurance under policies separate from those insuring the Project, or if after final payment property insurance is to be provided on the completed Project through a policy or policies other than those insuring the Project during the construction period, the Owner shall waive all rights in accordance with the terms of Section 11.4.7 for damages caused by fire or other causes of loss covered by this separate property insurance. All separate policies shall provide this waiver of subrogation by endorsement or otherwise. § 11.4.6 Before an exposure to loss may occur, the Owner shall file with the Contractor a copy of each policy that includes insurance coverages required by this Section 11.4. Each policy shall contain all generally applicable conditions, definitions, exclusions and endorsements related to this Project. Each policy shall contain a provision that the policy will not be canceled or allowed to expire, and that its limits will not be reduced, until at least 30 days' prior written notice has been given to the Contractor. § I IA.7 Waivers of Subrogation. The Owner and Contractor waive all rights against (1) each other and any of their subcontractors, sub -subcontractors, agents and employees, each of the other, and (2) the Architect, Architect's consultants, separate contractors described in Article 6, if any, and any of their subcontractors, sub -subcontractors, agents and employees, for damages caused by fire or other causes of loss to the extent covered by property insurance obtained pursuant to this Section 11.4 or other property insurance applicable to the Work, except such rights as they have to proceeds of such insurance held by the Owner as fiduciary. The Owner or Contractor, as appropriate, shall require of the Architect, Architect's consultants, separate contractors described in Article 6, if any, and the subcontractors, sub -subcontractors, agents and employees of any of them, by appropriate agreements, written where legally required for validity, similar waivers each in favor of other parties enumerated herein. The policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged. § 11.4.6 A loss insured under Owner's property insurance shall be adjusted by the Owner as fiduciary and made payable to the Owner as fiduciary for the insureds, as their interests may appear, subject to requirements of any applicable mortgagee clause and of Section 11.4.10. The Contractor shall pay Subcontractors their just shares of insurance proceeds received by the Contractor, and by appropriate agreements, written where legally required for validity, shall require Subcontractors to make payments to their Sub -subcontractors in similar manner. § 11,4.9 If required in writing by a party in interest, the Owner as fiduciary shall, upon occurrence of an insured loss, give bond for proper performance of the Owner's duties. The cost of required bonds shall be charged against proceeds received as fiduciary. The Owner shall deposit in a separate account proceeds so received, which the Owner shall distribute in accordance with such agreement as the parties in interest may reach, or in accordance with an arbitration award in which case the procedure shall be as provided in Section 4.6. If after such loss no other special agreement is made and unless the Owner terminates the Contract for convenience, replacement of damaged property shall be performed by the Contractor after notification of a Change in the `Fork in accordance with Article 7. § 11.4.10 The Owner as fiduciary shall have power to adjust and settle a loss with insurers unless one of the parties in interest shall object in writing within five days after occurrence of loss to the Owner's exercise of this power; if such objection is made, the dispute shall be resolved as provided in Sections 4.5 and 4.6, The Owner as fiduciary shall, in the case of arbitration, make settlement with insurers in accordance with directions of the arbitrators. If distribution of insurance proceeds by arbitration is required, the arbitrators will direct such distribution. § 11.5 PERFORMANCE BOND AND PAYMENT BOND § 11.5.1 The Owner shall have the right to require the Contractor to furnish bonds covering faithful performance of the Contract and payment of obligations arising thereunder as stipulated in bidding requirements or specifically required in the Contract Documents on the date of execution of the Contract. AIA Document A201TM —1997. Copyright 0 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. Ali rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 34 reproduction or distribution of this AIA® Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12J10/2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (3925236195) § 11.5.2 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of obligations arising under the Contract, the Contractor shall promptly furnish a copy of the bonds or shall permit a copy to be made. ARTICLE 12 UNCOVERING AND CORRECTION OF WORK § 12.1 UNCOVERING OF WORK § 121.1 If a portion of the Work is covered contrary to the Architect's request or to requirements specifically expressed in the Contract Documents, it must, if required in writing by the Architect, be uncovered for the Architect's examination and be replaced at the Contractor's expense without change in the Contract Time. § 12.1.2 If a portion of the Work has been covered which the Architect has not specifically requested to examine prior to its being covered, the Architect may request to see such Work and it shall be uncovered by the Contractor. If such Work is in accordance with the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order, be at the Owner's expense. If such Work is not in accordance with the Contract Documents, correction shall be at the Contractor's expense unless the condition was caused by the Owner or a separate contractor in which event the Owner shall be responsible for payment of such costs. § 12.2 CORRECTION OF WORK § 12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION § 12.2.1-1 The Contractor shall promptly correct Work rejected by the Architect or failing to conform to the requirements of the Contract Documents, whether discovered before or after Substantial Completion and whether or not fabricated, installed or completed. Costs of correcting such rejected Work, including additional testing and inspections and compensation for the Architect's services and expenses made necessary thereby, shall be at the Contractor's expense. § 12.2.2 AFTER SUBSTANTIAL COMPLETION § 12.2.2.1 In addition to the Contractor's obligations under Section 3.5, if, within one year after the date of Substantial Completion of the Work or designated portion thereof or after the date for commencement of warranties established under Section 9.9.1, or by terms of an applicable special warranty required by the Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice from the Owner to do so unless the Owner has previously given the Contractor a written acceptance of such condition. The Owner shall give such notice promptly after discovery of the condition. During the one-year period for correction of Work, if the Owner fails to notify the Contractor and give the Contractor an opportunity to make the correction, the Owner waives the rights to require correction by the Contractor and to make a claim for breach of warranty. If the Contractor fails to correct nonconforming Work within a reasonable time during that period after receipt of notice from the Owner or Architect, the Owner may correct it in accordance with Section 2A. § 12.2.2.2 The one-year period for correction of Work shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual performance of the Work. § 12.2.2.3 The one-year period for correction of Work shall not be extended by corrective Work performed by the Contractor pursuant to this Section 12.2. § 12.2.3 The Contractor shall remove from the site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the Owner. § 12.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction, whether completed or partially completed, of the Owner or separate contractors caused by the Contractor's correction or removal of Work which is not in accordance with the requirements of the Contract Documents. § 12.2.5 Nothing contained in this Section 12.2 shall be construed to establish a period of limitation with respect to other obligations which the Contractor might have under the Contract Documents. Establishment of the one-year period for correction of Work as described in Section 12.2.2 relates only to the specific obligation of the Contractor to correct the Work, and has no relationship to the time within which the obligation to comply with the Contract AIA Document A201 TM —1997. Copyright 0 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA* Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized �r reproduction or distribution of this AIA* Document, or any portion of 1% may result in severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 14.41:00 on 12110/2008 under Order No.1000375455_1 which expires on 10.120.12009, and is not for resale. User Notes: (3925236195) Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish the Contractor's liability with respect to the Contractor's obligations other than specifically to correct the Work. § 12.3 ACCEPTANCE OF NONCONFORMING WORK § 12.3.1 If the Owner prefers to accept Work which is not in accordance with the requirements of the Contract Documents, the Owner may do so instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and equitable. Such adjustment shall he effected whether or not final payment has been made. ARTICLE 13 MISCELLANEOUS PROVISIONS § 13.1 GOVERNING LAW § 13.1.1 The Contract shall be governed by the law of the place where the Project is located. § 13.2 SUCCESSORS AND ASSIGNS § 13.2A The Owner and Contractor respectively bind themselves, their partners, successors, assigns and legal representatives to the other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents. Except as provided in Section 13.2.2, neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. § 13.21 The Owner may, without consent of the Contractor, assign the Contract to an institutional lender providing construction financing for the Project. In such event, the lender shall assume the Owner's rights and obligations under the Contract Documents. The Contractor shall execute all consents reasonably required to facilitate such assignment § 13.3 WRITTEN NOTICE § 13.3.1 Written notice shall be deemed to have been duly served if delivered in person to the individual or a member of the firm. or entity or to an officer of the corporation for which it was intended, or if delivered at or sent by registered or certified mail to the last business address known to the party giving notice. § 13.4 RIGHTS AND REMEDIES § 13.4.1 Duties and obligations imposed by the Contract Documents and rights and remedies available thereunder shall be in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available by law. § 13.4.2 No action or failure to act by the Owner, Architect or Contractor shall constitute a waiver of a right or duty afforded them under the Contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in writing. § 13.5 TESTS AND INSPECTIONS § 13.5.1 Tests, inspections and approvals of portions of the Work required by the Contract Documents or by Iaws, ordinances, rules, regulations or orders of public authorities having jurisdiction shall be made at an appropriate time. Unless otherwise provided, the Contractor shall make arrangements for such tests, inspections and approvals with an independent testing laboratory or entity acceptable to the Owner, or with the appropriate public authority, and shall bear all related costs of tests, inspections and approvals. The Contractor shall give the Architect timely notice of when and where tests and inspections are to be made so that the Architect may be present for such procedures. The Owner shall bear costs of tests, inspections or approvals which do not become requirements until after bids are received or negotiations concluded. § 13.5.2 If the Architect, Owner or public authorities having jurisdiction determine that portions of the Work require additional testing, inspection or approval not included under Section 13.5.1, the Architect will, upon written authorization from the Owner, instruct the Contractor to make arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and the Contractor shall give timely notice to the Architect of when and where tests and inspections are to be made so that the Architect may be present for such procedures. Such costs, except as provided in Section 13.5.3, shall be at the Owner's expense. AIA Document A201 TM —1997. Copyright 9 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American (nit. Institute of Architects. All rights reserved WARNING: This AIA® Document Is protected by U.S. Copyright taw and International Treaties. Unauthorized 36 reproduction or distribution of this AIA® Document, or any portion of 1% may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12/10/2008 under Order No.1000375455 1 which expires or, 1012012009, and is not for resale. User Notes: (3925236195) § 13.5.3 If such procedures for testing, inspection or approval under Sections 13.5.1 and 13.5 2 reveal failure of the portions of the Work to comply with requirements established by the Contract Documents, all costs made necessary by such failure including those of repeated procedures and compensation for the Architect's services and expenses shall be at the Contractor's expense. § 13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be secured by the Contractor and promptly delivered to the Architect. § 13.5.5 If the Architect is to observe tests, inspections or approvals required by the Contract Documents, the Architect will do so promptly and, where practicable, at the normal place of testing. § 13.5.6 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work. § 13.6 INTEREST § 13.6.1 Payments due and unpaid under the Contract Documents shall bear interest from the date payment is due at such rate as the parties may agree upon in writing or, in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located. § 13.7 COMMENCEMENT OF STATUTORY LIMITATION PERIOD § 13.7.1 As between the Owner and Contractor: .1 Before Substantial Completion. As to acts or failures to act occurring prior to the relevant date of Substantial Completion, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than such date of Substantial Completion; Between.Substantial Completion.and Final Certificate for Payment. As to acts or failures to act occurring subsequent to the relevant date of Substantial Completion and prior to issuance of the final Certificate for Payment, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than the date of issuance of the final Certificate for Payment; and After Final Certificate for Payment. As to acts or failures to act occurring after the relevant date of issuance of the final Certificate for Payment, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than the date of any act or failure to act by the Contractor pursuant to any Warranty provided under Section 3.5, the date of any correction of the Work or failure to correct the Work by the Contractor under Section 12.2, or the date of actual commission of any other act or failure to perform any duty or obligation by the Contractor or Owner, whichever occurs last. ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT § 14.1 TERMINATION BY THE CONTRACTOR § 14.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of 30 consecutive days through no act or fault of the Contractor or a Subcontractor, Sub -subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, for any of the following reasons: .1 issuance of an order of a court or other public authority having jurisdiction which requires all Work to be stopped; .2 an act of government, such as a declaration of national emergency which requires all Work to be stopped; .3 because the Architect has not issued a Certificate for Payment and has not notified the Contractor of the reason for withholding certification as provided in Section 9.4.1, or because the Owner has not made payment on a Certificate for Payment within the time stated in the Contract Documents; or .4 the Owner has failed to furnish to the Contractor promptly, upon the Contractor's request, reasonable evidence as required by Section 2.2.1. § 14.1.2 The Contractor may terminate the Contract if, through no act or fault of the Contractor or a Subcontractor, Sub -subcontractor or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the Contractor, repeated suspensions, delays or interruptions of the entire Work AIA Document A201 TM —1997. Copyright ®1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIAe Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 37 reproduction or distribution of this AIA! Document, or any portion of it, may result In severe civil and criminal penaltles, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12/10/2008 under Order No.1000375455_1 which expires on 10/2012009, and is not for resale. User Notes: (3925236195) by the Owner as described in Section 14.3 constitute in the aggregate more than 100 percent of the total number of days scheduled for completion, or 120 days in any 365-day period, whichever is less. § 14.1.3 If one of the reasons described in Section 14.1.1 or 14.1.2 exists, the Contractor may, upon seven days' written notice to the Owner and Architect, terminate the Contract and recover from the Owner payment for Work executed and for proven loss with respect to materials, equipment, tools, and construction equipment and machinery, including reasonable overhead, profit and damages. § 14.1:4 If the Work is stopped for a period of 60 consecutive days through no act or fault of the Contractor or a Subcontractor or their agents or employees or any other persons performing portions of the Work under contract with the Contractor because the Owner has persistently failed to fulfill the Owner's obligations under the Contract Documents with respect to matters important to the progress of the Work, the Contractor may, upon seven additional days' written notice to the Owner and the Architect, terminate the Contract and recover from the Owner as provided in Section 14.1.3. § 14.2 TERMINATION BY THE OWNER FOR CAUSE § 14.2.1 The Owner may terminate the Contract if the Contractor: .1 persistently or repeatedly refuses or fails to supply enough properly skilled workers or proper materials; .2 fails to make payment to Subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the Subcontractors; .3 persistently disregards laws, ordinances, or rules, regulations or orders of a public authority having jurisdiction; or .4 otherwise is guilty of substantial breach of a provision of the Contract Documents. § 14.2.2 When any of the above reasons exist, the Owner, upon certification by the Architect that sufficient cause exists to justify such action, may without prejudice to any other rights or remedies of the Owner and after giving the Contractor and the Contractor's surety, if any, seven days' written notice, terminate employment of the Contractor and may, subject to any prior rights of the surety: .1 take possession of the site and of all materials, equipment, tools, and construction equipment and machinery thereon owned by the Contractor; 2 accept assignment of subcontracts pursuant to Section 5.4; and .3 finish the Work by whatever reasonable method the Owner may deem expedient. Upon request of the Contractor, the Owner shall furnish to the Contractor a detailed accounting of the costs incurred by the Owner in finishing the Work. § 14.2.3 When the Owner terminates the Contract for one of the reasons stated in Section 14.2.1, the Contractor shall not be entitled to receive further payment until the Work is finished. § 14.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including compensation for the Architect's services and expenses made necessary thereby, and other damages incurred by the Owner and not expressly waived, such excess shall be paid to the Contractor. If such costs and damages exceed the unpaid balance, the Contractor shall pay the difference to the Owner. The amount to be paid to the Contractor or Owner, as the case may be, shall be certified by the Architect, upon application, and this obligation for payment shall survive termination of the Contract. § 14.3 SUSPENSION BY THE OWNER FOR CONVENIENCE § 14.3A The Owner may, without cause, order the Contractor in writing to suspend, delay or interrupt the Work in whole or in part for such period of time as the Owner may determine. § 14.3.2 The Contract Sum and Contract Time shall be adjusted for increases in the cost and time caused by suspension, delay or interruption as described in Section 14.3.1. Adjustment of the Contract Sum shall include profit. No adjustment shall be made to the extent: .1 that performance is, was or would have been so suspended, delayed or interrupted by another cause for which the Contractor is responsible; or 2 that an equitable adjustment is made or denied under another provision of the Contract. Init. AIA Document A201TM —1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized 38 reproduction or distribution of this AIA® Document, or any portion of It, may result In severe civil and criminal penalties, and will be prosecuted to the ( maximum extent possible under the law. This document was produced by AIA software at 14:41 *00 on I?J10/2008 under Order No_1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (3925236195) § 14.4 TERMINATION BY THE OWNER FOR CONVENIENCE § 14.4.1 The Owner may, at any time, terminate the Contract for the Owner's convenience and without cause. § 14.4.2 Upon receipt of written notice from the Owner of such termination for the Owner's convenience, the Contractor shall: .1 cease operations as directed by the Owner in the notice; 2 take actions necessary, or that the Owner may direct, for the protection and preservation of the Work; and except for Work directed to be performed prior to the effective date of termination stated in the notice, terminate all existing subcontracts and purchase orders and enter into no further subcontracts and purchase orders. § 14.4.3 In case of such termination for the Owner's convenience, the Contractor shall be entitled to receive payment for Work executed, and costs incurred by reason of such termination, along with reasonable overhead and profit on the Work not executed. AIA Document A201 TM —1997. Copyright © 1911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1966, 1970, 1976, 1987 and 1997 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized 39 reproduction or distribution of this AIA® Document, or any portion of 1% may result In severe civil and criminal penalties, and will be prosecuted to the / maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12/10/2008 under Order No.1000375455_1 which expires on 10/2012009, and is not for resale. User Notes: (3925236195) Additions and Deletions Report for AIA® Document A201 T " —1997 This Additions and Deletions Report, as defined on page 1 of the associated document, reproduces below all text the author has added to the standard form AIA document in order to complete it, as well as any text the author may have added to or deleted from the original AIA text. Added text is shown underlined. Deleted text is indicated with a horizontal line through the original AIA text. Note: This Additions and Deletions Report is provided for information purposes only and is not incorporated into or constitute any part of the associated AIA document. This Additions and Deletions Report and its associated document were generated simultaneously by AIA software at 14:41:00 on 1200/2008. PAGE City of La Porte - Westside Park Project 3600 Canada Road LaPorte, TX 77571 City of La Porte 1322 South Broadway, LaPorte, Texas 77572 (Name and address): Randall -Porterfield :Architects. Inc. A.I.A. 565 FM Z7O North Leaeue City, Texas 77573 Additions and Deletions Report for AIA Document A201 Tx —1997. Copyright 01911, 1915, 1918, 1925, 1937, 1951, 1958, 1961, i 963, 1966, i 970, 1976, 1987 and 1997 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document Is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIO Document, or any portion of it, may result In severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12/10/2008 under Order NoA000375455-1 which expires on 10/20/2009, and is not for esale. User Notes: (3925236195) Certification of Document's Authenticity AIA® Document D401 TM -2003 I, Robert A. Randall, hereby certify, to the best of my knowledge, information and belief, that I created the attached final document simultaneously with its associated Additions and Deletions Report and this certification at 14:41:00 on 12/10/2008 under Order No. 1000375455_1 from AIA Contract Documents software and that in preparing the attached final document I made no changes to the original text of AIA® Document A201TM — 1997 - General Conditions of the Contract for Construction, as published by the AIA in its software, other than those additions and deletions shown in the associated Additions and Deletions Report. (Signed) (Title) (Dated) AIA Document D401 T — 2003. Copyright 01992 and 2003 by The American Institute of Architects. All rights reserved. WARNING: This AIA® Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 14:41:00 on 12/10/2008 under Order No.1000375455_1 which expires on 10/20/2009, and is not for resale. User Notes: (3925236195) AIA Document A312 Performance Bond Bond No. 58668195 Conforms with the American Institute of Architects, AIA Document A312. Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): Patak Construction, Inc. 1927 Hwy 146 Kemah, Texas 77565 OWNER (Name and Address): City of La Porte 1322 South Broadway La Porte, Texas 77572 CONSTRUCTION CONTRACT SURETY (Name and Principal Place of Business): Western Surety Company 5151 San Felipe, Suite 1800 Houston, Texas 77056 Date: November 4, 2008 Amount: $(2,750,000.00) Two Million Seven Hundred Fifty Thousand Dollars and No/100 Description (Name and Location):City of La Porte - Westside Park Project Located at 3600 Canada Road, La Porte, Texas 77571, Northwest Corner of Canada and Caniff Streets BOND Date (Not earlier than Construction Contract Date): December 22, 2008 Amount: $(2,750,000.00) Two Million Seven Hundred Fifty Thousand Dollars and No/100 Modifications to this Bond: CONTRACTOR AS PRINCIPAL Company: Patak Con ction, Inc. (Corporate Seal) Signature: Name and Tile: /I`jIOII( �J (Any additio al signatures pear on page Cil f (FOR INFORMATION ONLY - Name, Address and Telephone) AGENT or BROKER: Elsey & Associates Surety/Insurance Agency, Inc., 21755 IH-45 North, Building 8, Spring, Texas 77388 1 The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference. 2 If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except to participate in conferences as provided in Subparagraph 3.1. 3 If there is no Owner Default, the Surety's obligation under this Bond shall arise after: 3.1 The Owner has notified the Contractor and the Surety at its address described in Paragraph 10 below that the Owner is considering declaring a Contractor Default and has requested and attempted to arrange a conference with the Contractor and the Surety to be held not later than fifteen days after receipt of such notice to discuss methods of performing the Construction Contract. If the Owner, the Contractor and the Surety agree, the Contractor shall be allowed a reasonable time to SURETY 5026 (6-92) S-1852/GE 10/99 ❑X None n S: e Page 2 SURETY Company: Western Surety Company Signature: /I -� Name and Title: Mary M. OWNER'S REPRESENTMIVE (Architect, Engineer or other party): Randall -Porterfield Architects, Inc., A.I.A. 565 FM 270 North League City, Texas 77573 perform the Construction Contract, but such an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default; and 3.2 The Owner has declared a Contractor Default and formally terminated the Contractor's right to complete the contract. Such Contractor Default shall not be declared earlier than twenty days after the Contractor and the Surety have received notice as provided in Subparagraph 3.1; and 3.3 The Owner has agreed to pay the Balance of the Contract Price to the Surety in accordance with the terns of the Construction Contract or to a contractor selected to perform the Construction Contract in accordance with the terms of the contract with the Owner. 4 When the Owner has satisfied the conditions of Paragraph 3, the Surety shall promptly and at the Surety's expense take one of the following actions: Page 1 of 2 XDP 4.1 Arrange for the Contractor, with consent of the Owner, to perform and complete the Construction Contract; or 4.2 Undertake to perform and complete the Construction Contract itself, through its agents or through independent contractors; or 4.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Construction Contract, arrange for a contract to be prepared for execution by the Owner and the contractor selected with the Owner's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in Paragraph 6 in excess of the Balance of the Contract Price incurred by the Owner resulting from the Contractor's default; or 4.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances: After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is determined, tender payment therefor to the Owner; or Deny liability in whole or in part and notify the Owner citing reasons therefor. 5 If the Surety does not proceed as provided in Paragraph 4 with reasonable promptness, the Surety shall be deemed to be in default on this Bond fifteen days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. If the Surety proceeds as provided in Subparagraph 4.4, and the Owner refuses the payment tendered or the Surety has denied liability, in whole or in part, without further notice the Owner shall be entitled to enforce any remedy available to the Owner. 6 After the Owner has terminated the Contractor's right to complete the Construction Contract, and if the Surety elects to act under Subparagraph 4.1, 4.2, or 4.3 above, then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. To the limit of the amount of this Bond, but subject to commitment by the Owner of the Balance of the Contract Price to mitigation of costs and damages on the Construction Contract, the Surety is obligated without duplication for: 6.1 The responsibilities of the Contractor for correction of defective work and completion of the Construction Contract; 6.2 Additional legal, design professional and delay costs resulting from the Contractor's Default, and resulting from the actions or failure to act of the Surety under Paragraph 4; and 6.3 Liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual damages caused by delayed performance or non-performance of the Contractor. MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: 7 The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract, and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations. No right of action shall accrue on this Bond to any person or entity other than the Owner or its heirs, executors, administrators or successors. 8 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. 9 Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and shall be instituted within two years after Contractor Default or within two years after the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond, whichever occurs first. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. 10 Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. 11 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond. 12 DEFINITIONS 12.1 Balance of the Contract Price: The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made, including allowance to the Contractor of any amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which the Contractor is entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract. 12.2 Construction Contract: The agreement between the Owner and the Contractor identified on the signature page, including all Contract Documents and changes thereto. 12.3 Contractor Default: Failure of the Contractor, which has neither been remedied nor waived, to perform or otherwise to comply with the terms of the Construction Contract. 12.4 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL Company: Patak Construction, Inc. Company: Western Surety Company (Corporate Seal) Signature: Name and Title: Address: 1927 Hwy 146 Kemah, Texas 77565 Signature: Name and Title: Address: 5151 San Felipe, Suite 1800 Page 2 of 2 Houston, Texas 77056 THE AMERICAN INSTITUTE OF ARCHITECTS AIA Document A312 Bond No. 58658195 Payment Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR: SURETY: Patak Construction, Inc. Western Surety Company 1927 Hwy 146 5151 San Felipe, Suite 1800 Kemah, Texas 77565 Houston, Texas 77056 OWNER: City of La Porte 1322 South Broadway La Porte, Texas 77572 CONSTRUCTION CONTRACT Date: November 4, 2008 Amount: ($2,750,000.00) Two Million Seven Hundred Fifty Thousand Dollars and No/100 Description (Name and Location): City of La Porte - Westside Park Project Located at 3600 Canada Road, La Porte, Texas 77571, Northwest Corner of Canada and Caniff Streets BOND Date: December 22, 2008 Amount: ($2,750,000.00) Two Million Seven Hundred Fifty Thousand Dollars and No/100 Modifications to this Bond: See Page 6 CONTRACTOR AS PRINCIPAL Company: Patak Construction, Inc. (Corporate Sea]) A Signature: Name and Itle: (Any additional signatures appear on page 6) SURETY Company: Western Surety Company Signature: Name and (FOR INFORMATION ONLY- Name, Address and Telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer Elsey & Associates Surety/Insurance Agency, Inc. other party): Randall -Porterfield Architects, Inc. A.I.A. 21755 IH-45 North, Building 8 565 FM 270 North Spring, Texas 77388 League City, Texas 77573 AIA DOCUMENT A312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312-1984 4 THIRD PRINTING • MARCH 1987 I The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner to pay for labor, materials and equipment furnished for use in the performance of the Construction Contract, which is incorporated herein by reference. 2 With respect to the Owner, this obligation shall be null and void if the Contractor: 2.1 Promptly makes payment, directly or indirectly, for all sums due Claimants, and 2.2 Defends, indemnifies and holds harmless the Owner from claims, demands, liens or suits by any person or entity whose claim, demand, lien or suit is for the payment for labor, materials or equipment furnished for use in the performance of the Construction Contract, provided the Owner has promptly notified the Contractor and the Surety (at the address described in Paragraph 12) of any claims, demands, liens or suits and tendered defense of such claims, demands, liens or suits to the Contractor and the Surety, and provided there is no Owner Default. 3 With respect to Claimants, this obligation shall be null and void if the Contractor promptly makes payment, directly or indirectly, for all sums due. 4. The Surety shall have no obligation to Claimants under this Bond until: 4.1 Claimants who are employed by or have a direct contract with the Contractor have given notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and, with substantial accuracy, the amount of the claim. 4.2 Claimants who do not have a direct contract with the Contractor: .1 Have furnished written notice to the Contractor and sent a copy, or notice thereof, to the Owner, within 90 days after having last performed labor or last furnished materials or equipment included in the claim stating, with substantial accuracy, the amount of the claim and the name of the party to whom the materials were furnished or supplied or for whom the labor was done or performed; and 6 When the Claimant has satisfied the conditions of Paragraph 4, the Surety shall promptly and at the Surety's expense take the following actions: 6.1 Send an answer to the Claimant, with a copy to the Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed. 6.2 Pay or arrange for payment of any undisputed amounts. 7 The Surety's total obligation shall not exceed the amount of this Bond, and the amount of this Bond shall be credited for any payments made in good faith by the Surety. 8 Amounts owed by the Owner to the Contractor under the Construction Contract shall be used for the performance of the Construction Contract and to satisfy claims, if any, under any Construction Performance Bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and the Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work. 9 The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that are unrelated to the Construction Contract. The Owner shall not be liable for payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obligations to make payments to, give notices on behalf of, or otherwise have obligations to Claimants under this Bond. 10 The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. 11 No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the location in which the work or part of the work is located or after the expiration of one year from the date (1) on which the Claimant gave the notice required by Subparagraph 4.1 or Clause 4.2.3, or (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the Construction Contract, whichever of (1) or (2) first occurs. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. .2 Have either received a rejection in whole or in 12 Notice to the Surety, the Owner or the Contractor shall part from the Contractor, or not received within be mailed or delivered to the address shown on the signature 30 days of furnishing the above notice any page. Actual receipt of notice by Surety, the Owner or the communication from the Contractor by which Contractor, however accomplished, shall be sufficient the Contractor has indicated the claim will be compliance as of the date received at the address shown on paid directly or indirectly; and the signature page. .3 Not having been paid within the above 30 days, have sent a written notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and enclosing a copy of the previous written notice furnished to the Contractor. 6 If a notice required by Paragraph 4 is given by the Owner to the Contractor or to the Surety, that is sufficient compliance. 13 When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirements shall be deemed deleted herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond. AIA DOCUMENT A312. PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312-1984 THIRD PRINTING • MARCH 1987 14 Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor shall promptly furnish a copy of this Bond or shall permit a copy to be made. 15 DEFINITIONS 15.1 Claimant: An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor, materials or equipment for use in the performance of the Contract. The intent of this Bond shall be to include without limitation in the terms "labor, materials or equipment" that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental equipment used MODIFICATIONS TO THIS BOND ARE AS FOLLOWS: in the Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials or equipment were furnished. 15.2 Construction Contract: The agreement between the Owner and the Contractor identified on the signature page, including all Contract Documents and changes thereto. 15.3 Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. Paragraph 4 is amended to insert sub -paragraph 4.3 which states: 4.3 Claimant has furnished to Surety proof of claim duly sworn to by Claimant with adequate supporting documentation proving the amount claimed is due and payable. Paragraph 5 shall be amended to delete the word "or' and insert the word "and" in its place. Paragraph 6 and its sub paragraphs 6.1 and 6.2 shall be deleted in their entirety. (Space is provided below for additional signatures of added parties, other than those appearing on the cover page.) CONTRACTOR AS PRINCIPAL SURETY Company: (Corporate Seal) Company: (Corporate Seal) Signature: Name and Title: Address: Signature: Name and Title: Address: AIA DOCUMENTA312 • PERFORMANCE BOND AND PAYMENT BOND • DECEMBER 1984 ED. • AIA® THE AMERICAN INSTITUTE OF ARCHITECTS, 1735 NEW YORK AVE., N.W., WASHINGTON, D.C. 20006 A312-1984 THIRD PRINTING • MARCH 1987 Western Surety Company POWER OF ATTORNEY APPOINTING INDIVIDUAL ATTORNEY -IN -FACT Know All Men By These Presents, That WESTERN SURETY COMPANY, a South Dakota corporation, is a duly organized and existing corporation having its principal office in the City of Sioux Falls, and State of South Dakota, and that it does by virtue of the signature and seal herein affixed hereby make, constitute and appoint Bruce C De Hart, Edward L Moore, David R Groppell, Gary L Timmons, Sharen R Groppell, Beverly A Ireland, Jon C Moore, Roxanne G Hebert, Mary M Rifaat, Individually of Spring, TX, its true and lawful Attorneys) -in -Fact with full power and authority hereby conferred to sign, seal and execute for and on its behalf bonds, undertakings and other obligatory instruments of similar nature - In Unlimited Amounts - and to bind it thereby as fully and to the same extent as if such instruments were signed by a duly authorized officer of the corporation and all the acts of said Attorney, pursuant to the authority hereby given, are hereby ratified and confirmed. This Power of Attorney is made and executed pursuant to and by authority of the By -Law printed on the reverse hereof, duly adopted, as indicated, by the shareholders of the corporation. In Witness Whereof, WESTERN SURETY COMPANY has caused these presents to be signed by its Senior Vice President and its corporate seal to be hereto affixed on this 8th day of July, 2008. q,�tREry WESTERN SURETY COMPANY y40 1�ey z o `4EA%* Paul IrBruflat, Senior Vice President State of South Dakota County of Minnehaha I ss On this 8th day of July, 2008, before me personally came Paul T. Brufiat, to me known, who, being by me duly sworn, did depose and say: that he resides in the City of Sioux Falls, State of South Dakota; that he is the Senior Vice President of WESTERN SURETY COMPANY described in and which executed the above instrument; that he knows the seal of said corporation; that the seal affixed to the said instrument is such corporate seal; that it was so affixed pursuant to authority given by the Board of Directors of said corporation and that he signed his name thereto pursuant to like authority, and acknowledges same to be the act and deed of said corporation. My commission expires♦ti..........�wtiti......ti....r'rrtitir + I D. KRELL rr November 30, 2012 f/ NarARY PUBLIC SEAL r SOUTH DAKOTA r +•��tiV�rtitititi%%%%%%•%%%%% + A& D. Krell, N0jjj7y Public CERTIFICATE 1, L. Nelson, Assistant Secretary of WESTERN SURETY COMPANY do hereby certify that the Power of Attorney hereinabove set forth is still in force, and further certify that the By -Law of the corporation pri,tded on the reverse hereof is still in force. In testimony whereof I have hereunto subscribed my name and affixed the seal of the said corporation this 22f1d day of December 2008 4 , WESTERN SURETY COMPANY 2=A%-P • L. Nelson, Assistant Secretary Form F4280-09-06 %My Western Surety Company Figure: 28 TAC §1.601(a)(3) 1 IMPORTANT NOTICE To obtain information or make a complaint: 2 You may contact Western Surety Company at 605-336-0850. 3 You may call Western Surety Company's toll -free telephone number for information or to make a complaint at: 1-800-331-6053 4 You may also write to Western Surety Company at: P.O. Box 5077 Sioux Falls, SD 57117-5077 5 You may contact the Texas Department of Insurance to obtain information on companies, coverages, rights or complaints at: 1-800-252-3439 6 You may write the Texas Department of Insurance: P.O. Box 149104 Austin, TX 78714-9104 Fax: (512) 475-1771 Web: http://www.tdi.state.tx.us E-Mail: ConsumerProtection@tdi.state.tx.us AVISO IMPORTANTE Para obtener informacion o para someter una queja: Puede comunicarse con Western Surety Company al 605-336-0850. Usted puede Ilamar al numero de telefono gratis de Western Surety Company's para informacion o para someter una queja al: 1-800-331-6053 Usted tambien puede escribir a Western Surety Company: P.O. Box 5077 Sioux Falls, SD 57117-5077 Puede comunicarse con el Departamento de Seguros de Texas para obtener informacion acerca de companias, coberturas, derechos o quejas al: 1-800-252-3439 Puede escribir al Departamento de Seguros de Texas: P.O. Box 149104 Austin, TX 78714-9104 Fax: (512) 475-1771 Web: http://www.tdi.state.tx.us E-Mail: ConsumerProtection@tdi.state.tx.us 7 PREMIUM OR CLAIM DISPUTES: DISPUTAS SOBRE PRIMAS O RECLAMOS: Should you have a dispute concerning your Si tiene una disputa concerniente a su prima o a premium or about a claim you should contact un reclamo, debe comunicarse con el Western Western Surety Company first. If the dispute is not Surety Company primero. Si no se resuelve la resolved, you may contact the Texas Department disputa, puede entonces comunicarse con el of Insurance. departamento (TDI). 8 ATTACH THIS NOTICE TO YOUR POLICY: This notice is for information only and does not become a part or condition of the attached document. Form 1929-4-2008 UNA ESTE AVISO A SU POLIZA: Este aviso es solo para proposito de informacion y no se convierte en parte o condicion del documento adjunto. OP ID CI DATE(MM/DD/YYYY) AACORD- CERTIFICATE OF LIABILITY INSURANCE PATAK21 12 22 08 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Elsey & Associates HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 21755 IH-45 North Bldg 8 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Spring TX 77388 Phone:281-651-0002 Fax:281-350-0281 INSURED Patak Construction, Inc. 1927 Hwy 146 Kemah TX 77565 rnvcoer_CQ INSURERS AFFORDING COVERAGE NAIC # INSURER A: Depositors Insurance Co. 42587 INSURER B: Allied Prop & Cas Ins Co. 42579 INSURER C: Depositors Insurance Co. 42587 INSURER D: Texas Mutual Insurance Co. 22945 INSURER E: St. Paul Travelers Insurance THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. IN5K LTR AULT NSR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE MM/DD/YY POLICYIRA N DATE MM/DDIYY LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 JAM'A PREMISES(Eaoccurence) $ 100,000 X X COMMERCIAL GENERAL LIABILITY GID07203119904 01/01/08 01/01/09 CLAIMS MADE K OCCUR MED EXP (Any one person) $ 5,000 PERSONAL 8 ADV INJURY $ 1 , 000 , 000 X Contractual Liab GENERAL AGGREGATE s2,000,000 _ GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS -COMP/OP AGG $ 2,000,000 POLICY X PROECT LOC J B AUTOMOBILE X LIABILITY ANY AUTO BAPC7203119904 01/01/08 01/01/09 COMBINED SINGLE LIMIT (Ea accident) $ 1,000,000. BODILY INJURY (Per person) $ ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY (Per accident) $ X X HIREDAUTOS NON -OWNED AUTOS X X Coll Ded $1 , 0000 PROPERTY DAMAGE (Per accident) $ Com Ded $1,000 GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC $ ANY AUTO $ AUTO ONLY: AGG EXCESS/UMBRELLA LIABILITY EACH OCCURRENCE $ 1,000,000 C X OCCUR I—ICLAIMSMADE CAD7203119904 01/01/08 01/01/09 AGGREGATE $ 1,000,000 $ DEDUCTIBLE $ RETENTION $ D WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? If yes, describe under SPECIAL PROVISIONS below TSF0001112363 01/01/08 01/01/09 X TORY LIMITS ER E.L.EACHACCIDENT _ $ 1 000 000 E.L. DISEASE - EA EMPLOYEE __.. $ 1 , 000 , 000 E.L. DISEASE - POLICY LIMIT $ 1 , 000 , 000 OTHER E Builders Risk QT6604266B263 01/01/08 01/01/09 Per Job $2,700,000 Deduct $2,500 DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT I SPECIAL PROVISIONS Project: City of LaPorte - Westside Park Project, 3600 Canada Rd., La Porte, TX 77571 ***See Attached Holder Notes*** ULKI IrIUAI It MULLILK CANCELLATION C ITYLAP SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL 1322 South Broadway City of La Porte, IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR LaPorte TX 77572 REPRESENTATIVES. AUTHORIZEaRMESENTATIVE 9 A ACORD 26 (2001/08) ACORD CORPORATION 1SRR IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. Amon nC ronn�mo� The City of La Porte, Randall -Porterfield Architects, Inc. A.I.A. and the Engineer are named as additional insured on all policies (except Workers Compensation) and provided a waiver of subrogation on all policies as required by written contract. This insurance is primary as pertains to the insureds work at the jobsite only. E REQUEST FOR CITY COUNCIL AGENDA ITEM Agenda Date Requested: December 8 2008 Requested By: Stephen L. Barr Department: Parks & Recreation Report: Resolution: Ordinance: Attachments: Agreement Attachments: Attachments: Appropriation Source of Funds: Fund 15 Fund 48 Acc't Number: 048-9892-975-1100 015-9892-975-1100 Amount Budgeted: $4,100,000 Requested: 975,000 SUMMARY & RECOMMENDATION As was discussed and authorized by Ordinance in the August l It" City Council meeting, we are now ready to proceed with our plan to re -develop the park property on Canada Road as a combination passive park/baseball complex for the residents of La Porte according to the Design Concept Memorandum for the proposed park. In addition to the Construction Manager -at -Risk segment of the project, the City of La Porte has committed to the Buy Board purchase of the equipment and installation of lighting for the ten fields at the new complex. Musco Lighting has been chosen to provide the lighting for the complex because of their reputation for excellence and their commitment to maintenance after the installation. Musco's technology allows for provision of equivalent lighting with far fewer fixtures, thereby reducing electrical costs for the life of the project. They also provide guaranteed illumination that meets UIL standards, with re-lamping as necessary for the first twenty-five years of the life of the lighting system. Musco will provide replacement of failed bulbs and other components of the lighting system for the entire twenty-five years covered in their warranty (see attached agreement). In addition, Musco provides computer controlled "on and off' capabilities for the project, effectively eliminating lights left on overnight and other problems, that currently cause problems for citizens as well as the Police Dispatchers. Because they have met the bidding requirements for the State of Texas for the Buy Board, they are eligible for selection for this project in an amount not to exceed $975,000. Over the life of the project, due to reduced electrical and maintenance costs, the project will save the city over $750,000 in operating costs for electricity and maintenance, effectively making the cost of the project only $225,000 (see Exhibit "D", attached agreement). This contract represents almost one-third of the total cost of the project. Musco has a reputation for excellence that is second to none in the industry. It was the choice of the LP1SD for the football stadium and the baseball field at La Porte High School. Action Required by Council: Consider approving and authorizing an agreement between the City of La Porte and Musco J ng, and appropriating a sum not to exceed $975,000 from Fund 48, to provide, install, and maintain g assemblies, galvanized steel poles and footings, computer controls, and associated appurtenances for est Side Sports Complex and Park for a period of twenty-five years, according to the agreement Ron Bottoms, City Manager IL 3 a Date AGREEMENT FOR LIGHTING PROJECT WEST SIDE SPORTS COMPLEX AND PARK CoLP Project No. GEN924 THIS AGREEMENT, made this 8m day of December , 2008, by and between the CITY OF LA PORTE, hereinafterapllbDe_d, "Owner", acting herein through its CITY MANAGER and MUSCMIGHTING, LLC (Name of Contracting Firm) Strike out inapplicable terms: ( b g ) ( ) or (an individual or company doing business as:) MU PebALIghting LLC, with home offices at P.O. Box 808, Oskaloosa, Iowa, 52577; and local offices at 395 Sawdust Rd.. Suite 2151 of The Woodlands , County of Montgomery , and State of Texas, hereinafter called "Contractor". WITNESSETH: That for and in consideration of the payments and agreements hereinafter mentioned, to be made and performed by the OWNER, the CONTRACTOR hereby agrees with the OWNER to commence and complete the construction described as follows: Provision and Installation of Lighting and Associated Appurtenances West Side Sports Complex and Park CoLP PROJECT NO. GEN924 Hereinafter called the project, for the Total Price NOT TO EXCEED Nine Hundred Seventy -Five Thousand Dollars ($ 975,000.00 ) and all extra work in connection therewith, under the terms as stated in the General and Supplementary Conditions of the Contract; and Further, that the CONTRACTOR agrees, at his (its or their) own proper cost and expense, to furnish all the materials, supplies, machinery, equipment, tools, superintendence, labor, insurance, and other accessories and services necessary to complete the said project in accordance with: A. The terms and conditions stated in the Scope of Work and in the Standard General Terms & Conditions, and Supplementary Conditions of this Contract. B. The plans, which include all maps, plats, blue prints, and other drawings and printed or written explanatory matter thereof; and Page 1 of 33 C. The Specifications and other contract documents therefore, as prepared by the City of La Porte and its Architect, all of which are made a part hereof and collectively evidence and constitute the contract, including but not limited to Exhibit "A", Equipment Layout, Exhibit "B", Manufacturer's Agreement, Exhibit "C", Lighting Specifications, and Exhibit "D" Manufacturer's 25 Year Warranty & Estimated Life Cycle Cost Savings. The CONTRACTOR hereby agrees to commence work under this contract on or before a date to be specified in a written "Notice to Proceed" of the Owner and to fully complete the project within 180 calendar days thereafter. The CONTRACTOR further agrees to pay, as liquidated damages, the sum of $300 for each consecutive calendar day thereafter as hereinafter provided in Paragraph SC-6 of the Supplementary Conditions. Page 2 of 33 IN WITNESS WHEREOF, the parties to these present have executed this each of which shall be deemed an original, in the year and day first above City of La Porte Name of Owner SEAL Attest: By: By: Ron gottoms Marth illett City Manager City Secretary Title Title �!� SEAL Musc fighting, LLC N e of ontracting Firm By: Sig ture Authorized Person Title of Authorized P6rson Address and Zip Code`]' Approved as to Form: City Attorney Witness Page 3 of 33 BOND 104989840 PAYMENT BOND Provision and installation of lighting and Associated Appurtenances West Side Sports Complex and Park CLP Project No. GEN924 STATE OF TEXAS COUNTY OF Montgomery KNOW ALL MEN BY THESE PRESENTS: That Musco Sports Lighting, LLC of the City of The Woodlands County of Montgomery , and State of Texas , as principal, andrw,iers casualt=��U t f AmPrira authorized under the laws of the State of Texas to act as surety on bonds for principals, are held and firmly bound unto The City of La Porte (Owner), in the penal sum of Nine Hundred Seventy Thousand and Nol100ths - - - -dollars (1975,000.00 ) for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors and assigns, jointly and severally, by these presents: WHEREAS, the Principal has entered into a certain written contract with the Owner, dated the 8th day of December , 2008, to which contract is hereby referred to and made apart hereof as fully and to the same extent as if copied at length herein. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if, the said Principal shall pay all claimants supplying labor and material to him or a subcontractor in the prosecution of the work provided for in said contract, then, this obligation shall be void; otherwise to remain in full force and effect; "PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Vernon's Texas Codes Annotated, Texas Government Code, Chapter 2253, as amended and all liabilities on this bond shall be determined in accordance with the provisions of said Article to the same extent as if it were copied at length herein." Surety, for value received, stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract, or to the work performed thereunder, or the plans, specifications, or drawings accompanying the same, shall in such change extension of time, alteration or addition to the terms of the contract, or to the work to be performed thereunder. Page 4 of 33 IN WITNESS WHEREo , the said Principal and Surety have signed and sealed this instrument this 15th day of December , 2008. Musco Sports Lighting, LLC Travelers Casualty and Surety Company of America Principal Surety By: By: Title: 5 � Title: Dean M. Clark, Attorney -in -Fact Home office:P.O. Box 808 Oskaloosa, IA 52577 Address: Address: 385 Washington Street Local Office: 395 Sawdust Rd, Suite 2151 St. Paul, MN 55102 The Woodlands, TX 77380 Countersignature Licensed Texas Resident Agent: The name and address of the Resident Agent of Surety is: Bruce C. DeHart - Licensed Texas Resident Agent Elsey & Associates 21755 IH-45 Building #8 Spring, TX 77388 Phone: 281-651-0002 Page 5 of 33 BOND 104989840 PERFORMANCE BOND Provision and Installation of Lighting and Associated Appurtenances West Side Sports Complex and Park CLP Project No. GEN924 STATE OF TEXAS COUNTY OF Montgomery KNOW ALL MEN BY THESE PRESENTS: That Musco Sports Lighting, LLG of the City of The Woodlands County of _ Montgomery , and State of Texas , as principal, and Travelers asuar am n rnf Amoriraauthorized under the laws of the State of Texas to act as surety on bonds for principals, are held and firmly bound unto The City of La Porte (Owner), in the penal Sum of Nine Hundred Seventy Thousand and No/100ths - - dollars ($. 975,000.00 ) for the payment whereof, the said Principal and Surety bind themselves, and their heirs, administrators, executors, successors and assigns, jointly and severally, by these presents: WHEREAS, the Principal has entered into a certain written contract with the Owner, dated the sth day of December , 2008, to which contract is hereby referred to and made apart hereof as fully and to the same extent as if copied at length herein. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the said Principal shall faithfully perform said Contract and shall in all respects duly and faithfully observe and perform all and singular the covenants, conditions and agreements in and by said contract agreed and covenanted by the Principal to be observed and performed, and according to the true intent and meaning of said Contract and the Plans and Specifications hereto annexed, then this obligation shall be void; otherwise to remain in full force and effect; "PROVIDED, HOWEVER, that this bond is executed pursuant to the provisions of Vernon's Texas Codes Annotated, Texas Government Code, Chapter 2253, as amended and all liabilities on this bond shall be determined in accordance with the provisions of said Article to the same extent as if It were copied at length herein." Surety, for value received, stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Contract, or to the work performed thereunder, or the plans, specifications, or drawings accompanying the same, shall in any way affect its obligation on this bond, and it does hereby waive notice of any such change, extension of time, alteration or addition to the terms of the contract, or to the work to be performed thereunder. Page 6 of 33 IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this instrument this 15th day of December , 2008. Musco Sports Lighting, LLC Travelers Casualty and Surety Company of America Principal Surety By: .�._ � BY: Title: `S c �'— I Title: Home office:P.O. Box 808 Oskaloosa, IA 52577 Address: Address: Local Office: 395 Sawdust Rd, Suite 2151 The Woodlands, TX 77380 Dean M. Clark, Attorney -in -Fact 385 Washington Street St. Paul, MN 55102 Countersignature Licensed Texas Resident Agent: The name and address of the Resident Agent of Surety is: Rnir.P C nPHart- I ir,PnsPd Texas RPSirient ApPnt 1755 IH-45 Building #8 Spring, TX 77388 Phone: 281-651-0002 Page 7 of 33 WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER POWER OF ATTORNEY TRAVELERSJ Farmington Casualty Company St. Paul Guardian Insurance Company Fidelity and Guaranty Insurance Company St. Paul Mercury Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. Travelers Casualty and Surety Company Seaboard Surety Company Travelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company Attorney -In Fact No. 218163 Certificate No. 002042978 KNOW ALL MEN BY THESE PRESENTS: That Seaboard Surety Company is a corporation duly organized under the laws of the State of New York, that St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company and St. Paul Mercury Insurance Company are corporations duly organized under the laws of the State of Minnesota. that Farmington Casualty Company, Travelers Casualty and Surety Company, and Travelers Casualty and Surety Company of America are corporations duly organized under the laws of the State of Connecticut, that United States Fidelity and Guaranty Company is a corporation duly organized under the laws of the State of Maryland, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc. is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint Dean M. Clark, Diane M. Vanderpool, Judy L. Gearhart, Sandra K. Bell, Rhonda S. Siberz, Stanley J. Reynolds, and John F. Pray, Jr. (Jack) of the City of Des Moines , State of Iowa , their true and lawful Attorney(s)-in-Fact, each in their separate capacity if more than one is named above, to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law. IN WITNWANEREOF, the Complbeave caused this instrument to be signed and their corporate seals to be hereto affixed, this day of STY 9th Farmington Casualty Company St. Paul Guardian Insurance Company Fidelity and Guaranty Insurance Company St. Paul Mercury Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. Travelers Casualty and Surety Company Seaboard Surety Company Travelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company G 1.SU,� pl"� �St�ly aaEl0.E a6 �W,n s���M .•••• NSU `'... TY A ,pw�wvn COaPORA r, F i y TrO 19Jr1 NrO 's,,+..SEAL,'ol L:;;' m CDNN. o �OOHt1. �8 mp 1896 � .� T OF N£N� „�n NctA S . AN'�,. °•:t .. a/( s as r 1� State of Connecticut City of Hartford ss. By: Georg Thompson. enior ice President 9th January 2007 On this the day of before me personally appeared George W. Thompson, who acknowledged himself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. 0 ®rDevo* 0 In Witness Whereof, I hereunto set my hand and official seal.V✓���� My Commission expires the 30th day of June, 2011. Marie C.Tetrcault, Notary Public 58440-5-07 Printed in U.S.A. WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER This Power of Attorney is granted under and by the authority of the following resolutions adopted by the Boards of Directors of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, which resolutions are now in full force and effect, reading as follows: RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys -in -Fact and Agents to act for and on behalf of the Company and may give such appointee such authority as his or her certificate of authority may prescribe to sign with the Company's name and seal with the Company's seal bonds, recognizances, contracts of indemnity, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such appointee and revoke the power given him or her; and it is FURTHER RESOLVED, that the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is in writing and a copy thereof is filed in the office of the Secretary; and it is FURTHER RESOLVED, that any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary; or (b) duly executed (under seal, if required) by one or more Attorneys -in -Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or by one or more Company officers pursuant to a written delegation of authority; and it is FURTHER RESOLVED, that the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any power of attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys -in -Fact for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such power of attorney or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and certified by such facsimile signature and facsimile seal shall be valid and binding on the Company in the future with respect to any bond or understanding to which it is attached. 1, Kori M. Johanson, the undersigned, Assistant Secretary, of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., Seaboard Surety Company, St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of;America, and United States Fidelity and Guaranty Company do hereby certify that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies, which is in full force and effect and has not been revoked. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seals of said Companies this �J'day, 20 Kori M. Johans Assistant Secretary 0009,�� '"yRESu-I Pm4cy_._�- (J}/f�i<QC�O� 't�STRN.EP,.,O.,AIM.R AG.T.F9� �'n f :•i'IEW�o.+L::rJ.::pa:SEAL E.P.1..NO.A.5R..RV..L hz;� �.j,- I..�4f ......q.T..F.. AN_9 "iy '.C. 3 ` o"o :,;s: ayo ? J HPA� CNtCTY FNAONHR. ODy, G o� �`�¢�4� FI1AYCR4OTsFNuCNnNE.✓TDA.%p � � aN�t�O\�Ii y1I $Y96� < >yy n ��i "Ll ` ,�yi� asfi •� AH't To verify the authenticity of this Power of Attorney, call 1-800-421-3880 or contact us at www.travelersbond.com. Please refer to the Attorney -In -Fact number, the above -named individuals and the details of the bond to which the power is attached. THIS POWER OF ATTORNEY IS INVALID WITHOUT STANDARD GENERAL TERMS AND CONDITIONS Provision and Installation of Lighting and Associated Appurtenances CoLP Project No. GEN924 1. CITY OF LA PORTE AS OWNER The word "City of La Porte" in this contract refers to the City of La Porte and all its officers. 2. 3. 4. 6. 6. 7. CONTRACTOR The word "Contractor" refers to the person or entity agreeing to perform the work in this contract. PROGRAM ADMINISTRATOR The term "Program Administrator" refers to the person designated by City of La Porte to act on its behalf in administering this contract. STATUS OF CONTRACTOR The Contractor shall at all times be considered to be an independent contractor, and will not hold itself or its employees out to be employees or agents of the City of La Porte. The Contractor shall provide, at the Contractor's expense, competent, full-time supervision of the work while actually in progress. ASSIGNMENT AND SUBLETTING The Contractor will retain full control over this contract and will not assign or subcontract said contract without the prior written consent of the City of La Porte. The Contractor further agrees that the subcontracting of any portion or feature of the work shall not relieve the Contractor from its full obligations_ under this contract. EQUAL OPPORTUNITY The Contractor and all Subcontractors shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, or national origin. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the policies of non-discrimination. CONTRACT Page 8 of 33 This contract consists of the following documents; Contract Award, Standard Special Terms and Conditions (including specifications, drawings and addenda), General Terms and Conditions, and any other documents referenced herein or attached hereto for the work. Collectively these documents may also be referred to as the Plans and Specifications, contract documents or CDs. Because the Construction Manager at Risk form of construction management has been chosen for this overall project, the lighting project with Musco Lighting is subordinate. The plans, specifications, drawings, and other documents provided by the Architect may change as the design/construction process evolves. Although no major changes in the scope of the overall project are expected, any change in the overall project that materially affects this contract will be subject to interpretation as found in the the General Conditions, Section 14, and Supplementary Conditions, Sections SC-29 & SC-30. DISCREPANCIES AND OMISSIONS In the event of any discrepancy between the Plans and Specifications, or otherwise, or in the event of any doubt as to the meaning and intent of any portion of the Plans and Specifications, the Program Administrator shall define which is intended to apply to the work. Such definition shall be final and binding on Contractor. 8. COLLATERAL CONTRACT The City of La Porte reserves the right to provide by separate contract or otherwise, in such manner as not to delay its programs or damage said Contractor, all labor and material essential to the completion of the work that is not included in this contract. 10. TIME The Contractor is advised that time for completion will consist of the number of calendar days set out in the Contract Award. Because the Construction Manager at Risk form of construction management has been chosen for this overall project, the lighting project with Musco Lighting is subordinate. The time for completion is subject to change for this subordinate contract because of potential changes in the overall project scope based on value engineering through the Construction Manager at Risk. Therefore, time of completion may be adjusted by the Architect as discussed in the Special Conditions, Sections SC-29 and SC-30. The Contractor is required to start work no later than ten (10) working days after the issuance of the written notice to proceed, which shall be issued after consultation with the Architect, CMAR, Project Adminstrator, and Musco Lighting representative. Failure to timely commence operations may be deemed by the City of La Porte to be a default. The Contractor will complete the work at that site within the time period specified. If there is more than one site listed on the notice to proceed, work for all sites must be completed not later than is specified for each site by the Program Administrator. Page 9 of 33 11. TIME AND ORDER OF COMPLETION The Contractor will commence work within ten (10) working days after the issuance of the notice to proceed and will substantially complete it within the time specified in the Contract Award. The term "substantially completed" is interpreted to mean that work shall be fully completed with the exception of minor miscellaneous work and adjustment. 12. EXTENSION OF TIME Should the Contractor be delayed in the completion of the work by an act or neglect of the City of La Porte or Program Administrator, or by any employee of either, or by other Contractors employed by the City of La Porte including the Construction Manager at Risk, or by changes ordered in the work, or by strikes, lockouts, fire, or unusual delays by common carriers, or unavoidable cause or causes beyond the Contractor's control or by any cause which the Program Administrator shall decide justifies the delay, then an extension of time shall be allowed for completing the work sufficient to compensate for the delay. The Contractor shall give the Program Administrator prompt notice in writing of the cause of such delay. The amount of time of the extension will be determined by the Program Administrator. 13. LOSSES FROM NATURAL CAUSES All damage to the work from the action of the elements, or from any unforeseen circumstance in the prosecution of the work by the Contractor, shall be repaired by the Contractor at its own cost. 14. CHANGES AND ALTERATIONS The Program Administrator may make changes and alterations to the Plans and Specifications at any time through the issuance of a change order. If such changes or alterations diminish the quantity of the work to be done an increase in compensation will be calculated, negotiated and agreed to by the Contractor and the Program Administrator. If there is an increase in the amount of the work, an increase in compensation will be calculated, negotiated and agreed to by the Contractor and the Program Administrator. 16. KEEPING OF PLANS AND SPECIFICATIONS ACCESSIBLE The Contractor shall keep one (1) copy of all Plans and Specifications constantly accessible at the work site. Any resultant changes in the plans and specifications caused through the CMAR process shall be provided to the Contractor by the Construction Manager at Risk in a timely manner, and the Contractor shall make available for inspection at all times. Page 10 of 33 16. SILENCE OF SPECIFICATIONS The apparent silence of specifications as to any detail, or the apparent omission from it of a detailed description concerning any point, shall be regarded as meaning that only the best commercial practice is to prevail and that only material and workmanship of the finest quality are to be used. All interpretations of specifications shall be made on the basis of this statement. The items furnished under this contract shall be new, unused of the latest product in production to commercial trade and shall be of the highest quality as to materials used and workmanship. Manufacturer furnishing these items shall be experienced in design and construction of such items and shall be an established supplier of the item proposed. 17. STORAGE AND CLEANUP The City of La Porte does not assume responsibility for any materials, tools, or equipment stored on or about the worksite. The worksite shall be cleared of debris by the Contractor continuously through the progress of the work and also upon final completion of the work. 18. WORKING HOURS Contractor may perform work twenty four (24) hours a day, seven days a week, unless otherwise restricted by the Special Conditions of this contract. 19. WORKSITE SECURITY Contractor shall maintain the security of the worksite and shall restrict access to the site to the following: a) its employees; b) employees of subcontractors; c) representatives of manufacturers whose goods are utilized in the work and are called to the site by either the Contractor or the Program Administrator; and d) agents and/or employees of the City of La Porte, Texas Department of Transportation (TxDOT) and Harris County. e)The Landscape Architect or the Landscape Architect's representative Contractor shall provide adequate protection to persons on the worksite, adjacent properties, and utilities as is necessary to keep each free of damage or injury. Contractor shall furnish all barricades, warning lights and other safety devices necessary for the safety and protection of the public and shall remove them upon completion of the work performed on those premises under the terms of this contract. Page 11 of 33 Contractor will have complete control over the work site and shall be fully responsible for any loss of or damage to any City of La Porte or State of Texas property from any cause and will reimburse City of La Porte or State of Texas or both in the event of any loss or damage to City of La Porte's or State of Texas' property from any cause. Contractor shall take proper means to protect adjacent or adjoining properties which might be injured or seriously effected by construction undertaken under this Agreement, from any damage or injury by reason of said process of construction. Contractor shall be liable for any and all claims for such damage on account of its failure to fully protect all adjoining properties. 20. ALCOHOLIDRUG FREE WORKPLACE The City of La Porte is committed to maintaining an alcohol and drug free workplace. Possession, use or being under the influence of alcohol or controlled substances by the Contractor's employees while in the performance of this Contract is prohibited. Violation of this requirement shall constitute grounds for immediate termination of the contract. 21. LABOR Contractor is encouraged to use local labor, but not at the expense of poor workmanship and higher cost. Contractor will not discriminate against any employee or applicant for employment because of race, religion, creed, color or national origin. Contractor agrees to post in a conspicuous place a notice setting forth provisions of this non-discrimination clause. In the event of Contractor's non-compliance with the non-discrimination clause of this contract, the contract entered into may be canceled in whole or in part. 23. UTILITIES Contractor shall be responsible for any charges which may be made by any city or utility companies for the work to be performed by Contractor. 24. PARKING Contractor shall be responsible for the expense of parking the Contractor's vehicle(s) in a legal manner and at no expense or inconvenience to the City of La Porte. Any damage resulting to property, either used by permission, leased or owned by the City of La Porte, due to parking of construction equipment, delivery trucks, or employee vehicles will be restored to its original condition at the Contractor's expense. Page 12 of 33 25. FIRE AND SAFETY Contractor is completely responsible for fire protection at the portion of the job site under his control, as well as the safety of its own employees, as well as any person entering onto the job site. 26. CONTRACTOR'S BUILDINGS The building of structures for housing workers, or the erection of tents or other forms of protection will be permitted only at such places as the Program Administrator shall permit, and the sanitary conditions of the grounds in or about such structures shall at all times be maintained in the manner satisfactory to the Program Administrator. 27. INSURANCE Contractor shall procure and maintain during the entire life of this Contract, insurance coverage executed by an insurance company authorized to do business in the state of Texas, protecting City of La Porte as follows: Contractor shall be responsible to ascertain and warrant that all insurance overages are complete in form and meet all specified requirements. Such insurance policy shall be in an amount not less than $2,000,000.'00, combined single limit coverage, and shall name City of La Porte as an additional insured under said policy, and said policy shall also provide Workman's Compensation on all employees as required by law. In addition, Contractor shall file with City of La Porte a Certificate of Insurance in the appropriate form before beginning any work. Such Certificates must clearly show all coverages outlined above and shall indicate coverage provided by insurance carriers acceptable to City of La Porte. Such certificates shall include a clause that at least thirty (30) days' advance notice of cancellation or other material change be given to City of La Porte. Contractor agrees to provide Physical Damage insurance (Builder's Risk) on any structures themselves. Neither Contractor nor City of La Porte waives rights of subrogation against any subcontractor for negligent acts of the subcontractor that results in damage to structures. Subcontractors shall carry sufficient insurance on their equipment and materials not forming a part of the structures to protect themselves. It is expressly understood and agreed that City of La Porte shall have no responsibility therefore. 28. SANITATION Page 13 of 33 Necessary sanitary conveniences for the use of laborers at the worksite, properly secluded from the public observation, shall be constructed or installed and maintained by Contractor in such manner and at such points as shall be approved by the Program Administrator, and their use shall be strictly enforced. 29. DAILY CLEANUP Contractor shall confine to the work site all materials and refuse generated by Contractor's operations. Materials that are stored on -site shall be stored in an orderly manner. Materials or refuse from demolition and/or removal operations, which become scattered in adjacent areas shall be collected and returned to the work site and satisfactorily removed. Truck(s) hauling materials must be covered to keep materials from littering streets. 30. FINAL GRADING If grading is required, when work is complete, Contractor shall grade the site to fill in holes and make a presentable appearance without disturbing trees and add fill dirt if needed. Contractor may not leave voids in the grading and .compaction of the property. The land shall have a smooth appearance without concrete, bricks, building materials, and other debris on the surface. 31. RIGHT OF ENTRY City of La Porte reserves the right to enter the property or location at which the work is being conducted, by such agents as it may elect, for the purpose of inspecting the work, or for the purpose of constructing or installing such collateral work as City of La Porte may desire, or for any other purpose deemed necessary by City of La Porte. 32. INSPECTION City of La Porte reserves the right to .inspect the work done by Contractor at any time. The inspection may include examination of the material furnished and the work done under this agreement to ensure compliance with the plans and specifications. Contractor shall furnish all reasonable aid and assistance required by the inspector(s) for the proper inspection and examination of the work. The inspector(s) may make any order requiring remedy of deficient performance at any time. Should Contractor object to any order by any inspector, Contractor may, within 24 hours, make written appeal to the Program Administrator for his decision, which decision shall be final and binding on Contractor. The approval or failure of an inspector to reject non -complying work or materials shall not relieve Contractor of his obligation to perform the work in full compliance with the plans and specifications for the work. Page 14 of 33 Contractor shall be responsible for the costs associated by the exposing and covering of any item of concealed work for which an inspection is performed. 33. DEFECTS AND THEIR REMEDIES It is further agreed that if the work or any part thereof, or any material brought on the ground for use in the work or selected for the same, shall be deemed by the Program Administrator as unsuitable or not in conformity with the specifications, Contractor shall, after receipt of written notice thereof from the Program Administrator, forthwith remove such material and rebuild or otherwise remedy such work so that it shall be in full accordance with this contract. Work shall be carried out at no additional cost to the Owner. 34. SUBSTANTIAL COMPLETION When the Contractor determines that the work is substantially complete, he shall advise the Program Administrator of such and schedule a time for the Program Administrator to inspect the work. Contractor shall have all systems fully functional and operational for the inspection of the Program Administrator. All phases of the work will be examined by the Program Administrator, who will note any deficiencies in the work and notify Contractor of the same. The Program Administrator may acknowledge that the project is substantially complete if the work has been completed to the point where the work can be utilized for the general purpose for which it was undertaken; however, if the project is found not to be substantially complete, the Program Administrator will so advise the contractor. 35. FINAL COMPLETION AND ACCEPTANCE Within ten (10) days after Contractor has given the Program Administrator written notice that the work has been completed, or substantially completed, the Program Administrator shall inspect the work and, within said time, if the work be found to be completed or substantially completed in accordance with the plans and specifications, the Program Administrator shall issue an approval for payment. Should such inspection reveal deficiencies on the work, the Program Administrator will deliver a list of deficiencies to Contractor for immediate repair. No payment will be made until all deficiencies have been remedied. 36. SCHEDULE OF VALUES If this contract provides for the making of progress payments, Contractor shall prepare a schedule of values to allocate the entire contract sum among the various portions of the work. The schedule shall be supported by such data as will allow the Program Administrator to evaluate the schedule and substantiate its accuracy. The Program Administrator may make any adjustments deemed Page 15 of 33 necessary to the schedule. That schedule will then form the basis of progress payment applications. 37. PROGRESS PAYMENTS AND RETAINAGE If this contract provides for the making of progress payments, Contractor shall make application to City of La Porte through the Program Administrator for payment utilizing forms provided by the Program Administrator for that purpose. Contractor shall state the percentage of the work performed and request payment in proportion to the amount of work performed. Applications for payment shall be made monthly by Contractor. The amount of each payment shall be calculated by taking the sum allocated to the portion of the work in the schedule of values for which application is made, and then by multiplying that sum by the percentage of completion, then subtracting previous amounts paid by City of La Porte toward the total amount of the contract. Each progress payment shall be reduced by Five Percent (5%) as retainage. Upon the attainment of substantial completion, payment will be made so that the sum of all payments made under the contact equals Ninety Five Percent (9 5%) of the total contract amount. 38. ESTIMATED QUANTITIES This Contract, including the specifications, plans and estimates, is intended to show clearly all the work to be done and material to be furnished hereunder. The estimated quantities of the various classes of work to be done and material to be furnished under this contract are approximate and are to be used as a basis for estimating the probable cost of the work and for comparing the proposals offered for the work. It is understood and agreed that the actual amount of work to be done and material to be furnished under this contract may differ somewhat from these estimates, and that the basis for payment under this contract shall be the actual amount of such work done and the material furnished. It is further understood that the City of La Porte does not guarantee any minimum amount of work under this Contract and will pay only for such labor and materials actually furnished and satisfactorily installed. Contractor agrees that it will make no claim for damages, anticipated profits or otherwise on account of any differences which may be found between the quantities of work actually done, the material actually furnished under this Contract and the estimated quantities contemplated and contained in the proposals. 39. CHANGES AND ALTERATIONS Contractor further agrees that Program Administrator may make such changes and alterations as City of La Porte may see fit, in the line, grade, form, dimensions, Page 16 of 33 plans or materials for the work herein contemplated, or any part thereof, either before or after the beginning of the contract construction, without affecting the validity of this Contract and the accompanying bonds. if such changes or alterations diminish the quantity of the work to be done, they shall not constitute the basis for a claim for damages, or anticipated profits on the work that may be dispensed with. If they increase the amount of the work, and the increased work can fairly be classified under the specifications, such increase shall be paid for according to the quantity actually done and at the unit price established for such work under this contract; otherwise such additional work shall be paid for as provided under the paragraph entitled "EXTRA WORK'. In case Program Administrator shall make such changes or alterations as shall make useless any work already done or material already furnished or used in said work, then City of La Porte shall recompense Contractor for any material or labor so used, and for any actual loss occasioned by such change due to actual expenses incurred in preparation for the work as originally planned. The sum of all change orders shall not exceed twenty five percent (25%) of the original base bid. 40. EXTRA WORK The term "Extra Work" as used in this contract shall be understood to mean and include all work that may be required by the Program Administrator to be done by Contractor to accomplish any change, alteration or addition to the work shown upon the plans, or reasonably implied by the specifications, and not covered by Contractor's Proposal except as provided under Changes and Alterations in Paragraph 39 herein above.... . It is agreed that Contractor shall perform all Extra Work under the direction of the Program Administrator when presented with a Written Work Order signed by the Program Administrator: subject, however, to the right of Contractor to require a written confirmation of such Extra Work Order by the City of La Porte. It is also agreed that the compensation to be paid Contractor for performing said Extra Work shall be determined by one or more of the following methods: Method (a) - By agreed unit prices; or Method (b) - By agreed lump sum: or Method (c) - If Neither Method (a) nor Method (b) can be agreed upon before the Extra Work is commenced, then Contractor shall be paid the "Actual field cost" of the work plus fifteen (15) percent. In the event said Extra Work be performed and paid for under Method (c), then the provisions of this paragraph shall apply and the "actual field cost" is hereby defined to include the cost of all workmen, such as foremen, timekeepers, merchants, and laborers, and materials, supplies, teams, trucks, rentals on machinery and equipment for time actually employed or used on such Extra Work plus actual transportation charges necessarily incurred, if the kind of equipment or machinery is not already on the job, together with all power, fuel, lubricants, water and similar Page 17 of 33 operating expenses, also all necessary incidental expenses incurred directly on account of such Extra Work including Social Security, Old Age Benefits and other payroll taxes, and a ratable proportion of premiums on Construction and Maintenance Bonds, Public Liability and Property Damage and Workmen's Compensation, and all other insurance as may be required by any law or ordinance, or directed by the Program Administrator or by him agreed. The Program Administrator may direct the form in which accounts of the "actual field cost" shall be kept and may also specify in writing, before the work commences, the method of doing the work and the type and kind of machinery and equipment to be used, otherwise these matters shall be determined by Contractor. Unless otherwise agreed upon, the prices for the use of machinery and equipment shall be determined by using the one hundred (100) percent of the actual hourly or daily rate (for the time used plus time in moving to and from Job) of the latest schedule of Equipment Ownership Expense adopted by the Association General Contractors of America. Where practicable the terms and prices for the use of Machinery and Equipment shall be incorporated in the Written Extra Work Order. The fifteen (15) percent of the "Actual Field Cost" to be paid Contractor shall cover and compensate him for his profit, overhead, general superintendence and field office expense, and all other elements of cost and expense not embraced within the 'actual field cost" as herein defined, save that where the Contractor's Camp or Field Office must be maintained primarily on account of such extra work, then the cost to maintain and operate same shall be included in the "actual field cost'. No claim for extra work of any kind will be allowed unless ordered in writing by the Program Administrator. In case any orders or instructions, either oral or written appear to Contractor to involve extra work for which he should receive compensation, it shall make written request to the Program Administrator for written order authorizing Extra Work. Should a difference of opinion arise as to what does or does not constitute extra work, or as to the payment therefor, and the Program Administrator insists upon its performance, Contractor shall proceed with the work after making written order and shall keep an accurate account of the "actual field cost" thereof, as provided under Method (c) and by this action Contractor will thereby preserve the right to submit the matter of payment to litigation. 41. FINAL PAYMENT Upon the issuance of the approval for payment, the Program Administrator shall certify same to City of La Porte., who shall pay to Contractor the balance due Contractor under the terms of this agreement, provided it has fully performed its contractual obligations under the terms of this contract; and has provided City of La Porte with a release of liens from all materialmen, suppliers and subcontractors utilized in the work. 42. HINDRANCES AND DELAYS No charge shall be made by Contractor for hindrances or delays from any cause (except when work is stopped by order of the City of La Porte) during the progress of Page 18 of 33 any portion of the work embraced in this contract. In case said work shall be stopped by the act of Program Administrator then such expense as in the judgment of the Program Administrator is caused by stopping of said work shall be paid by City of La Porte to Contractor. 43. TIME OF FILING CLAIMS It is further agreed by both parties hereto that all questions of dispute or adjustment presented by Contractor shall be in writing and filed with the Program Administrator within a reasonable time after the Program Administrator has given any directions, order, or instruction to which Contractor desires to take exception. The Program Administrator shall reply to such written exceptions by Contractor and render his final decision in writing. 44. LIQUIDATED DAMAGES FOR DELAY Contractor agrees that time is of the essence of this contract and that for each day of a delay of a day beyond the number of working days or calendar days herein agreed upon the completion of the work herein specified and contracted .for (after due allowance for such extension of time as is provided for under Extension of Time herein above) City of La Porte may withhold permanently from Contractor's total compensation the sum specified in the special conditions as liquidated damages for such delay, which sum shall not be treated as a penalty, but to compensate the City of La Porte for loss of revenue. 45. ABANDONMENT BY CONTRACTOR Should Contractor fail to start or resume work within ten (10) days after written notification from the Program Administrator or if Contractor fails to comply with a change order or instruction of the Program Administrator, Contractor shall be declared to be in default and the Surety on the bonds shall be notified in writing and directed to complete the work, and a copy 'of said notice shall be delivered to Contractor. In case the Surety should fail to commence compliance with the notice for completion hereinbefore provided for within ten (10) days after services of such notice, or in the event there is no Surety, then City of La Porte may provide for completion of the work in any manner it deems appropriate. 46. TERMINATION City of La Porte may terminate this Contract: (i) immediately by giving written notice, if Contractor breaches its obligation under the Contract; or (ii) with or without cause, after giving 30 days written notice of Page 19 of 33 termination to Contractor. In the event this Contract is terminated Contractor will be paid for work satisfactorily completed. The amount of such payment will be determined by the Program Administrator. 47. SALVAGE Any materials, equipment and fixtures specifically ordered to be salvaged under these specifications shall remain the property of City of La Porte and will be delivered to the site designated by the Program Administrator. All other items shall be disposed of by Contractor in compliance with all applicable laws and regulations. 48. COMPLIANCE WITH CODES Contractor shall comply with all city, City of La Porte, and state and federal codes, laws, and ordinances in force at the time of award of contract and applicable to such work. Contractor shall be responsible for obtaining such permits, certificates, and licenses as may be required in the performance of the specified work. 49. INDEMNITY To the fullest extent permitted by applicable laws and regulations, Contractor shall indemnify and hold harmless City of La Porte and their officers, directors, employees, agents and other consultants from and against all claims, costs, losses and damages (including but not limited to all fees and charges of engineers, architects, attorneys and other professionals and all court or arbitration or other dispute resolution costs) caused by, arising out of or resulting from the performance of Contractor's obligations hereunder, provided that any such claim, cost, loss or damage: (i) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the completed construction or various separately identifiable parts thereof required to be furnished under the contract documents) including the loss of use resulting therefrom, and (ii) is caused in whole or in part by any negligent act or omission of Contractor, any subcontractor, any supplier, any person or organization directly or indirectly employed by any of them to perform or furnish any of Contractor's obligations hereunder or anyone for whose acts any of them may be liable, regardless of whether or not caused in part by any negligence or omission of a person or entity indemnified hereunder or whether liability is imposed upon such indemnified party by applicable laws and regulations regardless of the negligence of any such person or entity. In addition, the covenants and agreements contained the this paragraph shall be valid and enforceable regardless of whether City of La Porte or their respective council members, trustees, officers, agents and employees shall have been negligent or whether City of La Porte was in any manner responsible for the negligent or wrongful act or omission or the effective or unsafe condition which may have caused the injury or claim. Page 20 of 33 In any and all claims against City of La Porte or any of their respective consultants, agents, officers, directors or employees by any employee (or the survivor or personal representative of such employee) of Contractor, any subcontractor, any supplier, any person or organization directly or indirectly employed by any of them to perform or furnish any of Contractor's obligations hereunder, or anyone for whose acts any of them may be liable, the indemnification obligation from the above paragraph shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for Contractor or any such subcontractor, supplier or other person or organization under workers' compensation acts, disability benefit acts or other employee benefit acts. 50. PROTECTION AGAINST CLAIMS OF SUBCONTRACTORS. LABORERS. MATERIALMEN AND FURNISHERS OF MACHINERY EQUIPMENT AND SUPPLIES Contractor agrees to indemnify and hold City of La Porte harmless from all claims of subcontractors, laborers, workmen, mechanics, materialmen and furnishers of equipment, and all supplies incurred in the performance of this contract. Contractor shall furnish satisfactory evidence that all obligations of the nature hereinabove designated have been paid, discharged or waived. If Contractor fails to do so, then City of La Porte reserves the right to pay unpaid bills of which City of La Porte has written notice direct and withhold from Contractor's unpaid compensation a sum of money reasonably sufficient to liquidate any and all such lawful claims. 51. PROTECTION AGAINST ROYALTIES. PATENTED INVENTIONS OR PROCESS. OR PATENT INFRINGEMENT Contractor shall, at its own expense, settle or defend any claim, suit or action brought against City of La Porte and shall protect and save harmless City of La Porte from all and every demand for damages, royalties or fees for any patented invention or process used by it in connection with the work done, process used or material furnished under this Contract, and shall pay any final judgement for damages, attorneys fees and costs which may be awarded against City of La Porte. 52. LAWS AND ORDINANCES Contractor shall at all times observe and comply with all Federal, State and Local Laws, ordinances and regulations which in any manner effect the contract or the work, and shall indemnify and save harmless the City of La Porte against any claim arising from the violation of any such laws and ordinances, whether by Contractor or its employees. 53. WARRANTY Contractor and/or its Surety will be required by City of La Porte to repair, replace, restore, and/or to make such corrections as are required of it to comply strictly in all Page 21 of 33 things with this contract and the Plans and Specifications and any and all. of said work and/or materials, which, within a period of one year from and after the date of the passing, approval, and/or acceptance of any such work or materials, are found to be defective or to fail in any way to comply with this contract or with the Plans and Specifications. 54. PERMITS AND LICENSES Contractor shall be responsible for obtaining and furnishing all necessary permits and licenses, City, City of La Porte, State or Federal as are required for the performance of this contract. The City of La Porte will waive the permit fees for its own permits; the contractor shall obtain any other required permits from other governmental entities, at his own expense 55. NOTICE Any notice required or permitted between the parties under this contract must be in writing and shall be delivered in person or mailed, certified mail, return receipt requested, or may be transmitted by fax as follows: To City of La Porte at: Stephen Barr, Park and Recreation Director City of La Porte 1322 West Broadway La Porte, TX 77571 Email: barrs(d-)laportetx.aov Fax: 281.470.1361 To Musco Lighting at: Jeff Omer, Musco Lighting Project Coordinator 395 Sawdust Rd Suite 2151 The Woodlands, TX 77380 Fax: 281 /465-8258 E-mail: jeff.omerCa�musco.com 56. FORCE MAJEURE If the performance by City of La Porte of any of its obligations under this contract is delayed by any occurrence not of its own conduct, whether an act of God,or the common enemy or the result of war, riot, civil commotion, sovereign conduct, or the act or conduct of any person not a party or privy to this contract, the City of La Porte is excused from its performance for a period of time as is reasonably necessary after the occurrence to remedy the effects of the occurrence. Page 22 of 33 57. APPLICABLE LAWS Contractor acknowledges that City of La Porte is a governmental entity and this Agreement is an open record under the Open Records Act and will be discussed and voted upon in a public meeting. 58. ENTIRETY OF AGREEMENT AND MODIFICATION This contract contains the entire agreement between the parties. A prior agreement, promise, negotiation or representation not expressly set forth in this contract has no force or effect. A subsequent modification to this contract must be in writing, signed by both parties. An official representative, employee, or agent of the City of La Porte does not have authority to modify or amend this contract except pursuant to specific authority to do so granted by the City of La Porte. 59. SEVERABILITY: CONFORMITY WITH LEGAL LIMITATIONS If a provision contained in this contract is held invalid for any reason, the invalidity does not affect other provisions of the contract that can be given effect without the invalid provision, and to this end the provisions of this contract are severable. 60. GOVERNING LAW: VENUE This contract shall be governed by the laws of the State of Texas. Venue for an action arising under this contract shall be exclusively in Harris County, Texas. 61 LINES AND GRADES The Program Administrator will furnish points for horizontal and vertical control unless otherwise provided for in the plans and specifications. Any additional stakes required by the Contractor shall be set at contractor's expense. Whenever necessary, work shall be suspended to permit this work, but such suspension will be as brief as practicable and the Contractor shall be allowed no extra compensation therefor. The Contractor shall give the Program Administrator ample notice of the time and place where control lines and bench marks will be needed. All control stakes, marks, etc. shall be carefully preserved by the Contractor, and in case of careless destruction or removal by Contractor or Contractor's employees, such control stakes, marks, etc. shall be replaced by the Program Administrator at the Contractor's expense. END OF SECTION Page 23 of 33 SUPPLEMENTARY CONDITIONS OF THE AGREEMENT CoLP Project No. GEN924 SC-9 PRECEDENCE: These supplementary conditions of the Agreement are a supplement and where in conflict, they take precedence over the "Standard General Conditions of the Construction Contract" of this Specification. SC-2 OWNER, ARCHITECT, CONSTRUCTION MANAGER AT RISK: The word "OWNER" in these Specifications shall be understood as referring to the City of La Porte, Texas. The word "ARCHITECT" in these Specifications shall be understood as referring to the Architect for the City of La Porte, Texas for this Project; Robert A. Randall, Randall -Porterfield Architects, Inc. The phrase "CONSTRUCTION MANAGER AT RISK" and °CMAR" in these Specifications shall be understood as referring to the Construction Manager at Risk for the City of La Porte, Texas for this overall Project; Timothy Patak, Patak Construction, Inc. SC-3 SCOPE OF WORK: The work to be performed under this contract consists of furnishing all materials, labor, supervision, tools, and equipment necessary to complete the work. SC-4 SEQUENCE OF WORK: All work covered by this Contract shall be completed within the number of calendar days designated by the Contractor in the agreement. SC-5 TIME OF COMPLETION: The CONTRACTOR shall complete the work as provided in the Contract Documents and within the time limitations described in paragraph SC-4, Sequence of Work, unless otherwise stipulated to proceed. Calendar days shall be computed beginning and inclusive of the first day of the Notice to Proceed. CONTRACTORS shall notify OWNER in writing 48 hours prior to start of construction. The time of completion shall include delivery time of all equipment and materials required to complete the work in conformance with the Drawings and Specifications. SC-6 LIQUIDATED DAMAGES FOR DELAY: It is understood and agreed between the parties hereto that time is of the essence of this Contract, and that for each calendar day of delay beyond the completion date (after due allowance for such extension of time as provided herein) the CONTRACTOR shall pay the OWNER as liquidated damages the sum of three hundred dollars ($300.00), it being understood between the parties hereto that such sum shall be treated not as a penalty, but as liquidated damages for loss of revenue to the OWNER. SC-7 GUARANTEE: The CONTRACTOR shall furnish the OWNER with a written guarantee on all workmanship and materials provided by him for the project. The written guarantee shall be made out to the OWNER and in a form satisfactory to the OWNER, guaranteeing all of the work under the Contract to be free from faulty materials in every particular, and free from faulty workmanship, and against injury from proper and usual Page 24 of 33 wear; and agreeing to replace or to re -execute without cost to the OWNER such work as may be found to be imperfect or improper, and to make good all damage caused to other required replacement or re -execution. The guarantee shall be made to cover a period of one year from the date of completion of all work under this Contract. This guarantee must be furnished to the OWNER for approval, prior to acceptance and final payment. Neither the final certificate nor payment nor any provision in the Contract Documents shall relieve the CONTRACTOR of the responsibility for neglect or faulty materials or workmanship during the period covered by the guarantee. SC-8 MATERIALS AND WORKMANSHIP: No material which has been used by the CONTRACTOR for any temporary purpose whatever is to be incorporated in the permanent structure without written consent by the OWNER. SC-9 SANITARY FACILITIES: The CONTRACTOR shall maintain sanitary facilities at a location satisfactory to the OWNER, for use by the employees of the CONTRACTORS. They shall be well ventilated, but provide proper concealment, and shall be kept scrupulously clean at all times by the CONTRACTOR. The facilities shall be removed and the site restored to its original condition upon the completion of the work. All such facilities shall conform to the requirements of the state and local health authorities, ordinance and law. SC-10 INCONVENIENCES TO THE PUBLIC: It is the declared and acknowledged intent of these specifications that all work such as backfilling of excavations, removing forms, repairs to roads and drives, and clean-up or other such operations shall follow as closely as practical to the laying or installing operations, in such a manner that the public is not unnecessarily inconvenienced nor a hazard to public safety created. Any specific limitation in the technical specifications referring to.the control of the "follow-up" operations, such as the minimum distance of unfilled trench allowed behind the excavating operations, shall be strictly enforced. The OWNER or OWNER'S representative will notify the CONTRACTOR if his forces and/or equipment are insufficient to such a degree that the public is unnecessarily inconvenienced and/or a hazard to the public safety is created. The CONTRACTOR, upon notification by the OWNER or OWNER'S representative shall make necessary changes to his forces and/or equipment. SC-11 PERMITS: Permits and licenses of a temporary nature necessary for the prosecution of the work shall be secured and paid for by the CONTRACTOR. Easement, right-of-way and instruments of a permanent nature shall be secured and paid for by the OWNER. CONTRACTOR shall obtain all required permits from the City of La Porte and any other affected agency. SC-12 CLEAN-UP: The CONTRACTOR shall at all times keep the site and structures or facilities thereon free from accumulations of waste material, debris or rubbish caused by his employees or work; at the completion of the work he shall remove from the site all his tools, surplus materials, debris, and shall leave the site and his work "broom clean" or the equivalent, unless otherwise noted on the drawings or specified by the OWNER. Page 25 of 33 SC-13 OPERATIONS AND BUSINESS OF THE OWNER: It is of great importance that the OWNER'S operations meet with a minimum of interference resulting from the work requiring by these Contract Documents. The CONTRACTOR shall, therefore, conduct his work in such a manner as to permit these continued operations and so as not to interfere with the business of the OWNER. The CONTRACTOR shall use the route of entry designated by the ARCHITECT at the pre -construction meeting and restrict all his vehicle and personnel to this route and to the site. The blocking or hindering of traffic will not be permitted. SC44 SEPARATE CONTRACTS: The OWNER reserves the right to let other contracts in connection with this work. The CONTRACTOR shall afford other contractors reasonable opportunity for the introduction and storage of their materials and the execution of their work and where required, shall properly connect and coordinate his work with theirs. SC-15 RIGHTS OF VARIOUS INTERESTS: Wherever work being done by the OWNER'S forces or by other contractors contiguous to work covered by this contractor, the respective rights or the various interests involved shall be established by the OWNER or his resident inspector, to secure the completion of the various portions of the work in general harmony. CONTRACTOR shall issue work schedules in conflicting areas as requested by the OWNER or his resident inspector. SC-16 STORAGE OF MATERIALS AND EQUIPMENT: Any material which has deteriorated, become damaged or otherwise unfit for use, shall not be used in the work. Any material or equipment must be stored at a location directed by the ARCHITECT at the pre -construction meeting. Upon completion of all work, or when directed by the OWNER, the CONTRACTOR shall remove such storage facilities or equipment form the site. SC-17 PUBLIC UTILITY OBSTRUCTIONS: Pipe lines and other existing underground structures in the vicinity of the work are shown on the drawings according to the best information available to the OWNER. The OWNER does not guarantee the accuracy of this information. The CONTRACTOR shall make every effort to locate all underground utilities by prospecting in advance of trench excavation. The cost of repair of existing utilities damaged by the CONTRACTOR shall be borne by the CONTRACTOR, and shall be scheduled so as to cause the least possible inconvenience to the public. Any delay or extra cost to the CONTRACTOR caused by pipe lines or other underground structures or obstructions not shown on the plans or found in different locations than those indicated, shall not constitute a claim for extra work, additional payments, or damages. SC-18 SUBLETTING THE WORK: The CONTRACTOR shall perform with his own organization and with the assistance of workmen under his immediate supervision, work not less than fifty percent (50%) of the value of all work embraced in the Contract exclusive of items not commonly found in contracts for similar work or which requires highly specialized knowledge, craftsmanship and/or equipment not ordinarily available in the organizations of the contractor's performing work of the character embraced in the Page 26 of 33 Contract. No portion of the work covered by these specifications and materials shall be sublet without written permission from the OWNER. If the CONTRACTOR sublets any part of the work to be done under this Contract, he will not under any circumstances be relieved of his responsibility and obligations. All transactions of the OWNER will be with the CONTRACTOR. Subcontractors will be considered only in the capacity of employees and/or workers and shall be subject to the same requirements as to character, competency, wages and hours. The OWNER will not recognize any subcontractor on the work. The CONTRACTOR shall at all times, when the work is in operation, be represented either in person or by a qualified superintendent or other designated representative. A complete list of subcontractors must be submitted within ten (10) days after start-up. SC-19 PROTECTION OF EXISTING FACILITIES: The CONTRACTOR shall use construction equipment, labor, or techniques to insure that existing facilities such as but not limited to, existing utilities are not damaged. A careful pre -construction inspection of existing facilities will be made with the OWNER and the CONTRACTOR. SC-20 PROTECTION OF TREES AND SHRUBS: Any trees, shrubs, plants, or ornamental growth within the right-of-way, not directly interfering with the construction of the road bed, sidewalks, driveways or sewer shall be protected from damage by the CONTRACTOR. Any tree, shrub, plant or ornamental growth that interferes with the construction of the roadway, sewers, sidewalks or driveways shall be relocated to a location satisfactory to the adjoining property owner outside of the street right-of-way. Large trees not conducive to moving shall be removed and disposed. SC-21 PROJECT SCHEDULING: CONTRACTOR shall coordinate all work with OWNER. SC-22 WATER FOR CONSTRUCTION AND TESTING: CONTRACTOR may obtain water for construction and testing from the City of La Porte at his cost. A construction meter will be provided at no cost to the CONTRACTOR for the duration of construction. SC-23 OPERATION OF EXISTING FACILITIES: The City of La Porte shall operate all existing facilities (i.e., lift stations, valves, fire hydrants) during construction. SC-24 OWNER'S PROPERTY INSURANCE: Owner shall not be required to provide any additional property insurance coverage under this contract. SC-25 REQUIRED CONTRACTOR INSURANCE: CONTRACTOR shall obtain insurance as detailed. Each policy obtained by the CONTRACTOR for work with this contract, with exception of the Worker's Compensation policy, shall name the OWNER and the ARCHITECT as an additional insured. The coverage and amounts designated are minimum requirements and do not establish limits of the contractor's liability. Additional coverage may be provided at the CONTRACTOR'S option and expense. Insurance must include: General Liability: Commercial General Liability Page 27 of 33 General Aggregate $2,000,000.00 Personal Injury $2,000,000.00 Each Occurrence $2,000,000.00 Automobile Liabili Combined Single Limit $2,000,000.00 Excess Liability: Umbrella Each Occurrence $2,000,000.00 Each Aggregate $2,000,000.00 Worker's Comoensation: A. Definitions: Certificate 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. Duration of the project - includes the time from the beginning of the work on the project until the contractor's -work on the project has been completed and accepted by the OWNER. Persons providing services on the project - 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 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 the project. "Services" does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. B. The CONTRACTOR 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 contractor providing services on the project, for the duration of the project. C. The CONTRACTOR must provide a certificate of coverage to the OWNER prior to being awarded the contract. D. if the coverage period shown on the contractor's current certificate of coverage ends during the duration of the project, the contractor must, prior to the end of Page 28 of 33 the coverage period, file a new certificate of coverage with the OWNER showing that coverage has been extended. E. The CONTRACTOR shall obtain from each person providing services on the project, and provide the OWNER: (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 (2) no later than seven (7) days after receipt by the contractor, 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. F. The CONTRACTOR shall retain all required certificates of coverage for the duration of the Project and for one (1) year thereafter. G. The CONTRACTOR shall notify the OWNER in writing by certified mail or personal delivery, within ten (10) days after the contractor knew or should have known, of any change that materially affects the provisions of coverage of any persons providing services on the project. H. The CONTRACTOR shall post on each project site a notice, in the text, form and manner prescribed by the Texas Workers' 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. I. The CONTRACTOR shall contractually require each person with whom it contracts to provide services on the Project, to: (1) provide coverage, based on proper reporting of classification codes and payroll amount 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; (2) provide to the CONTRACTOR, 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; (3) provide the CONTRACTOR, 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 ends during the duration of the Project; (4) obtain from each other person with whom it contracts, and provide the CONTRACTOR: Page 29 of 33 (a) a certificate of coverage, prior to the other person beginning work on the project; and (b) 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 ends during the duration of the Project. (5) retain all required certificates of coverage on file for the duration of the Project and for one (1) year thereafter; (6) 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 provisions of coverage of any person providing services on the Project; and (7) 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 service. J. By signing this contract, the CONTRACTOR is representing to the OWNER that all employees of the CONTRACTOR who will provide services on the Project will be covered by workers' 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 Regulations. Providing false or misleading information may subject the CONTRACTOR to administrative penalties, criminal penalties, or other civil action. K. The CONTRACTOR'S failure to comply with any of these provisions is a breach of contract by the CONTRACTOR which entitles the OWNER to declare the Contract void if the CONTRACTOR does not remedy the breach within thirty (30) days after receipt of notice of breach from the City. The CONTRACTOR shall be responsible for insurance to cover equipment, tools, materials, supplies, etc. used in the performance of work, owned or rented, the capital value of which is not included in the cost of this Contract. Insurance policies are to be written by companies authorized to do business under the laws of the State of Texas and on forms approved by the Insurance Commission of the State of Texas. The CONTRACTOR shall provide the OWNER a copy of all insurance policies. All of the insurance required to be carried by the CONTRACTOR shall be by policies which shall require on their face, or by endorsement, thirty (30) days written notice to the OWNER before they may be cancelled and within which ten day period the CONTRACTOR covenants that it will provide other suitable policies in lieu of those about to be cancelled so as to maintain in effect the coverage required under the provisions hereof. Failure or refusal of the CONTRACTOR to obtain and keep in force Page 30 of 33 the above required insurance coverage shall authorize the OWNER, at its option, to terminate this contract at once. The CONTRACTOR shall indemnify and save harmless the OWNER, its officers, employees, and agents from all claims and liability due to the activities of itself, its agents, or employees performed under this contract and which result from an error, omission, or negligent act of the CONTRACTOR or of any person employed by the CONTRACTOR. The CONTRACTOR shall indemnify and save harmless the OWNER from any and all expenses, including attorney fees, which might be incurred by the OWNER in litigation or otherwise resisting said claims or liabilities which might be imposed on the OWNER as a result of such activities by the CONTRACTOR, his agents, or employees. SC-26 QUALIFICATIONS FOR SURETIES ISSUING BONDS: As required by City of La Porte Ordinance No. 1773, approved July 22, 1991, corporate sureties issuing payment and performance bonds payable to the City of La Porte on public works projects shall meet all of the following criteria: a. The surety company must be authorized to do business in the State of Texas, which authorization must be recorded in the files of the Texas State Board of insurance; b. The surety company must be an approved surety company listed in the current United States Department of Treasury list of approved corporate sureties for payment and performance bonds for federal jobs, including specifically the rules to underwriting limitation; C. The surety company must be authorized to issue payment and performance bonds in the amount required for the Contract, which authorization must be recorded in the files of the Texas State Board of insurance; d. The person executing the Payment and Performance Bonds must be a licensed Texas local recording agent and such licensing must be recorded in the files of the Texas State Board of Insurance; and e. The person executing the Payment and Performance Bonds must be authorized by the surety company to execute performance and payment bonds on behalf of the company in the amount required for the Contract and such authorization must be recorded in the files of the State Board of Insurance. f. Failure to meet the criteria for acceptability of Surety Company issuing Payment and Performance Bonds will result in the disqualification of the bid. g. The Payment and Performance Bonds shall remain in effect at least one year beyond final acceptance of work under the Contract by the Owner. Page 31 of 33 SC-27 RETAINAGE: If the total Contract price is greater than $400,000.00, five percent (5%) of the total contract price will be retained until final payment as described below. If the total Contract price is less than $400,000.00, ten percent (10%) of the total contract price will be retained until final payment as described below. On or before the tenth (10th) day of the month, the CONTRACTOR shall prepare and submit to the ARCHITECT for approval or modification a statement showing as completely as practicable the total value of the work done by the CONTRACTOR up to and including the last day of the preceding month; said statement shall also include the value of all sound materials delivered on the site of the work that are to be fabricated into the work. For total Contract prices (Base Bid) greater than $400,000.00, the OWNER shall then pay the CONTRACTOR on or before the fifteenth (15th) day of the, following month of the following month the amount of the approved statement, less five percent (5%) of the amount thereof, which shall be retained until final payment, and further less all previous payments and all further sums that be retained by the OWNER under the terms of the Agreement. For total Contract prices (Base Bid) less than $400,000.00, the OWNER shall then pay the CONTRACTOR on or before the fifteenth (15th) day of the following month of the following month the amount of the approved statement, less ten percent (10%) of the amount thereof, which shall be retained until final payment, and further less all previous payments and all further sums that be retained by the OWNER under the terms of the Agreement. It is understood, however, that in case the whole work be near to completion and some unexpected and unusual delay occurs due to no fault of the CONTRACTOR, the OWNER may, upon written recommendation of the ARCHITECT, pay a reasonable and equitable portion of the retained percentage to the CONTRACTOR, or the CONTRACTOR at the OWNER'S option, may be relieved of the obligation to fully complete the work and, thereupon, the CONTRACTOR shall receive payment of the balance due him under the Contract subject to those conditions under the General Conditions, Article 14, Payments to CONTRACTOR and completion. SC-28 PREVAILING WAGES: The CONTRACTOR and his subcontractors shall expressly comply with Article 5159A, Revised Civil Statutes of Texas, 1925, commonly known as, "The Prevailing Wage Act" including the latest provisions. Not less than the minimum prevailing wage for the Harris County area shall be paid for labor which is employed by the CONTRACTOR and his subcontractors for execution of this contract. The CONTRACTOR and his subcontractors shall keep accurate records of the names, wage classifications, and hourly wages paid to each worker employed on this project. These records shall be open to inspection by the OWNER. SC-29 CONTRACT INTERPRETATION AND WORK ACCEPTABILITY: The Architect will be the final interpreter of the requirements of the contract documents and sole judge of the acceptability of work there under. Page 32 of 33 SC-30 DISPUTE RESOLUTION, METHODS AND PROCEDURES: The parties will attempt in good faith to resolve any controversy or claim arising out of or relating to this agreement promptly by negotiation between senior executives of the parties who have authority to settle the controversy. The disputing party shall give the other party written notice of the dispute. Within ten days after receipt of said notice, the receiving party shall submit to the other a written response. The notice and response shall include (a) a statement of each party's position and a summary of the evidence and arguments supporting its position, and (b) the name and title of the executive who will represent that party. The executive shall meet at a mutually acceptable time and place within twenty days of the date of the disputing party's notice and thereafter as often as they reasonably deem necessary to exchange relevant information and to attempt to resolve the dispute. If the controversy or claim has not been resolved within thirty days of the meeting of the senior executives, the parties shall endeavor to settle the dispute by mediation under the Center for Public Resources Model Procedure for Mediation of Business Disputes or pursue amicable termination. If the matter has not been resolved pursuant to the aforesaid mediation procedure within sixty days of the commencement of such procedure, (which period may be extended by mutual agreement), or if either party will not participate in such procedure, the parties shall pursue amicable termination. Page 33 of 33 Exhibit A Revised Equipment Layout _ &E E { im FP u�iw —U3 Ez W 3 : - umFo m: October 27, 2008 City of La Porte Parks & Recreation Dept. 1322 South Broadway LaPorte, TX. 77571 Attention: Stephen L. Barr Reference: West Side Park Manufacturer's Agreement Dear Stephen: Thank you for potentially selecting Musco for your lighting needs. I am forwarding the following document package for your review and signature. This is the information upon which we will proceed in order to meet your expectations. 1. Manufacturer's Agreement - This document outlines the details of the proposed agreement. 2. Submittal - This document illustrates field dimensions and pole locations for design of your lighting project. It is important that these locations are verified. Changes identified after Musco receives this signed document can delay shipment. 3. Pole Foundations - This document illustrates the design specifications to which your poles and foundations will be manufactured. The signing of the Manufacturer's Agreement will be considered as your approval of the information contained in the above documents. In addition, please complete any areas indicated with an arrow (Q) for information vet to be identified. To speed the process, please fax the agreement to 800/374-6402 at your earliest convenience. If you have any questions, I can be reached at (281) 465-8385. Thank you for your assistance in advance. Sincerely, Jeff Omer Field Sales Representative 0000 M Manufacturer's Agreement Musco Sports Lighting, LLC / 2107 Stewart Road / PO Box 260 / Muscatine, IA 52761/ 563-263-2281 / Toll Free: 800-756-1205 / FAX: 800-374-6402 Project Name: West Side Park Project #: 136858 1. CUSTOMER NAME AND ADDRESS: 2. OWNER NAME AND ADDRESS: City of La Porte City of La Porte 604 West Fairmont Pkwy 604 West Fairmont Pkwy LaPorte, TX. 77571 LaPorte, TX. 77571 Attn: Stephen L. Barr Attn: Stephen L. Barr Email: barrs@laportetx.gov Email: barrs@laportetx.gov Telephone: (281) 470-5136 Telephone: (281) 470-5136 Fax: 281 470-1361 Fax: 281 470-1361 3. SHIPPING NAME AND ADDRESS: 4. WARRANTY CONTACT: West Side Park City of La Porte 3600 Canada Rd 1322 South Broadway La Porte, TX. 77571 LaPorte, TX. 77571 County: Harris Attn: Scott Bradley Attn: Susan Kelly Email: bradleys@laportetx.gov Email: Telephone: (281) 470-7275 Telephone: (281) 470-5123 Fax: (281) 470-1361 Fax: 5. FIELD NAME AND ADDRESS: West Side Park 3600 Canada Rd. La Porte, TX. County: Harris 6. EQUIPMENT DESCRIPTION - Musco shall transfer and deliver to Customer, and Customer will accept and pay for the following goods (the "Equipment") in accordance with the "Total Price" paragraph of this Agreement. Scan # or Footcandle Level: 136858-R (50fc Infield/30 fc Outfield) 0 Light -Structure Green TM 0 Control-Linkrm Ballast Input Voltage: TBD Phase to Pole: 3 Phase Musco's Light -Structure Green"m system consisting of (239) 1500/1000 watt metal halide fixtures; (40) galvanized steel poles; (40) pre -stressed concrete bases; and (3) Control -Link TM Controls & Monitoring System Cabinets. Price includes delivery to the site, unloading, and installation of poles/lights. © 1999, 2007 Musco Sports Lighting, LLC 1 Revision 26 — Issued 10.15.07 0000 ii1U Manufacturer's Agreement Musco Sports Lighting, LLC / 2107 Stewart Road / PO Box 260 / Muscatine, IA 52761/ 563-263-2281 / Toll Free: 800-756-1205 / FAX: 800-374-6402 Project Name: West Side Park Project #: 136858 7. CONSTANT 25TM WARRANTY & MAINTENANCE PROGRAM - Musco shall provide parts, labor and all services outlined in the Musco Constant 25 Agreement to maintain operation of lighting equipment for 25 years as follows: Service Begin Date: Date of product shipment Expiration Date: 25 years from date of shipment, or once lamp usage is exceeded, whichever occurs first Monitoring, Maintenance & Control Services Structural Integrity: Based upon IBC 2003, 120 MPH, Exposure C West Side Park (10 total fields) Number of Fixtures: 239 Light: __ Constant Light Levels:_ 50 infield/30 outfield footcandles Number of Group Relamps: 2 total rou lam rp eplacements _Total Annual Hours of Usage__ _ _ 600 hours System Energy Consumption 373.80 average kW demand; 406.3 maximum kW _ demand Spill Light Control: As specified in Musco design documents Group relamps will take place at the end of the 5000-hour useful lamp life. If total usage hours are exceeded, customer will need to purchase additional relamps to continue the warranty through 25 years. All light level readings shall be +/-10% in accordance with IESNA RP-6-01. 8. SCOPE OF WORK - The work to be performed by Musco or its subcontractor is as shown on last page of agreement. 9. TOTAL PRICE - Customer will pay for the above -described equipment/installation the Not To Exceed Price of U.S. $975,000* plus applicable taxes. FOB the shipping address above, payable as follows: *Pricing based upon current designs (attached), scope of work and geotechnical report assumptions. Any changes can impact final pricing. Amount due: $243.750 with order for preman ufactu ring engineering and design $365.625 within 10 days from invoice date for installation of foundations Balance Due within 10 days from invoice date for installation of poles and lights • Monthly progress invoicing and payments will apply. • Final payment, shall be due upon substantial completion of installation of the Equipment. • Final payment shall not be withheld by customer on account of delays beyond the control of Musco. Project may utilize lease/purchase program. This will require approval and mutual acceptance of finance package provided by Musco Finance, LLC (Lender). Credit approval by Lender must be complete prior to the order being released for production. Finance documents must be signed and returned to Lender prior to shipment. Deposit will be refunded in the event the Lender does not approve Customer for financing. If any payment is not made when due, Customer will pay a delinquent charge of 1-1/2% for each month, or a portion of month that a past due balance remains unpaid. © 1999, 2007 Musco Sports Lighting, LLC 2 Revision 26 — Issued 10.15.07 0000 MUSR. Agreement Musco Sports Lighting, LLC / 2107 Stewart Road / PO Box 260 / Muscatine, IA 52761/ 563-263-2281 / Toll Free: 800-756-1205 / FAX: 800-374-6402 Date: December 5, 2008 Project Name: West Side Park Project #: 136858 Desired Shipping Date(s): Projected Completion Date: Customer Reference Information Needed on Invoicing/Packages: City of La Porte Acceptance this day of 20_ Signature Name and Title MUSCO SPORTS LIGHTING, LLC Acceptance this da of20S 'nature � A Lr►. �'1 Name and Title 01999, 2007 Musco Sports Lighting, LLC 5 Revision 26 — Issued 10.15.07 0000 M m Manufacturer's Agreement Musco Sports Lighting, LLC / 2107 Stewart Road / PO Box 260 / Muscatine, IA 52761/ 563-263-2281 / Toll Free: 800-756-1205 / FAX: 800-374-6402 Project Name: West Side Park Project #: 136858 15. WARRANTY - Warranty claims and back charges shall not be deducted from contract payments without prior approval of Musco's Warranty Department (800-825-6020). Musco's Equipment and its performance are sold subject to Musco's written warranty, a copy of which will be provided with Musco's acceptance of this Agreement. The warranty provided by Musco shall be in lieu of all other warranties, and Musco disclaims any other warranty whatsoever, express or implied, including, but not limited to, the implied warranty of merchantability. 16. SECURITY AGREEMENT - In consideration of the promises contained herein, Customer hereby grants and conveys to Seller, to secure payment and performance of all obligations in full, a security interest in the Equipment, including all repairs, replacements and accessions thereto (collectively referred to as the "Secured Property"). Customer hereby irrevocably authorizes Seller at any time to file in any filing office in any Uniform Commercial Code jurisdiction any initial financing statements and amendments thereto relating to this transaction. Customer further agrees to promptly furnish any information requested by Seller to effectuate the terms of this Agreement. Customer further agrees to execute any document reasonably required by Seller to perfect the security interest granted herein and to assure the priority of such security interest. Customer shall maintain adequate insurance covering the Equipment in accordance with generally accepted business practices. Customer shall name Seller as loss payee until such time as Customer has performed in full all obligations contained herein. 17. DEFAULT - Each of the following shall constitute a default ("Default") under this Agreement: a) failure to pay, in full, any payment when due hereunder; b) Customer becomes the subject of a bankruptcy, receivership or insolvency proceeding; c) any warranty, representation or statement made or furnished to the seller by or on behalf of the Customer proved to have been false in any material respect when made or furnished; d) loss, theft, damage, destruction or encumbrance to, or of, the Secured Property or the making of any levee, seizure or attachment thereof or thereon; or e) the occurrence or non- occurrence of any event or events which causes the seller, in good faith, to deem itself insecure for any reason whatsoever. 18. REMEDIES UPON DEFAULT - In the event of Default, Seller may, at its option, and without notice or demand: a) declare the entire unpaid balance_owing hereunder due and payable at once; b) proceed to recover judgment for the entire unpaid balance due; c) exercise all rights provided to Seller under this Agreement, the Uniform Commercial Code, at law or in equity including but not limited to entering the Customer's premises and taking possession of the Secured Property. All the remedies described herein are cumulative, and may be exercised in any order by Seller. Customer agrees to pay all costs (including reasonable attorney's fees and court costs) incurred by Seller in disposing of the Secured Property and collecting any amounts owing hereunder, and such costs shall be part of the obligations secured hereunder. 19. CONDITIONS OF AGREEMENT a. APPLICABLE LAW - This Agreement shall be governed by the laws, including the Uniform Commercial Code, adopted in the State of Iowa as effective and in force on the date of this Agreement. b. EXPENSES/REMEDIES - Customer shall pay to Musco the reasonable expenses, including court costs, legal and administrative expenses and reasonable attorney's fees, paid or incurred by Musco in endeavoring to collect amounts due from Customer to Musco. It is further understood that if Customer does not make a payment as due, Musco has the right to forward appropriate notices or claims on jobs with owners, bonding companies, general contractors, or the like, as deemed appropriate by Musco. © 1999, 2007 Musco Sports Lighting, LLC 4 Revision 26 — Issued 10.15.07 0000 M m Manufacturer's Agreement �W' Musco Sports Lighting, LLC / 2107 Stewart Road / PO Box 260 / Muscatine, IA 52761/ 563-263-2281 / Toll Free: 800-756-1205 / FAX: 800-374-6402 Project Name: West Side Park Project #: 136858 ENTIRE AGREEMENT - This is the complete statement of the terms of this Agreement. No representative or employee of Musco has any authority to bind Musco to any term, representation or warranty other than those specifically included in this written Agreement or the written Warranty to be delivered to Customer. d. ACCEPTANCE - This Agreement is subject to the approval of Musco's Credit Department and the written acceptance of this Order by Musco Sports Lighting, LLC. Desired Shipping Date(s): Projected Completion Date: Customer Reference Information Needed on Invoicing/Packages: CITY OF LA PORTE MUSCO SPORTS LIGHTING, LLC Acceptance Acceptance this day of 20_ this day of 20_ Signature Signature Name and Title Name and Title © 1999, 2007 Musco Sports Lighting, LLC 5 Revision 26 — Issued 10.15.07 0000 MuiiaCoManufacturer's Agreement Musco Sports Lighting, LLC / 2107 Stewart Road / PO Box 260 / Muscatine, IA 52761/ 563-263-2281 / Toll Free: 800-756-1205 / FAX: 800-374-6402 Project Name: West Side Park Project #: 136858 Item 5 continued: FIELD NAME AND ADDRESS: Project Name: West Side Park Street Address: 3600 Canada Rd City, State, Zip: La Porte, TX. 77571 © 1999, 2007 Musco Sports Lighting, LLC 6 Revision 26 —Issued 10.15.07 PIA SCOPE OF WORK Date: October 15, 2008 Project: Westside Park Project #: 136858 Customer's expected start date: TBD Number of mobilizations: 2 Customer's project completion date: TBD Owner Responsibilities: I. Complete access to the site for construction utilizing 2 wheel drive rubber tired equipment and free of all obstacles such as fences, bleachers and side walks. 2. Locate existing underground utilities and irrigation systems and mark all pole locations. 3. Extra costs associated with foundation excavation in non-standard soils (rock, caliche, high water table, collapsing holes, etc.). Standard soils are defined as soils that can be excavated using standard earth auguring equipment. Base upon geotechnical report it is estimated that (19) foundations will need to be encased due to high water table. These foundations have been included in Musco's not to exceed price. 4. Electrical design & installation. 5. Provide equipment and materials to install the new Lighting Contactor Cabinet and terminate all necessary wiring. Contactor cabinets will be delivered with poles and fixtures. 6. Contractor will commission Control Link by contacting Control Link Central at (877- 347-3319) and going through the following steps: 7. Check all Zones to make sure they work in both auto and manual mode. 8. 1 hour comprehensive burn of all lights on each zone. 9. Set base line for the DAS (Diagnostic Acquisition System) Musco Responsibilities: 1. Provide required lighting, pole and foundation designs as partner on the design team. 2. Provide required lights, poles and foundations materials. 3. Provide layout of pole locations and aiming diagram. 4. Provide Project Management assistance as needed. 5. Musco shall provide Performance and Payment Bonds in an amount equal to the total amount of bid. Musco Subcontractor Responsibilities: 1. Provide equipment and materials to off load equipment at jobsite per scheduled delivery. Lighting Contactor Cabinets will need to be given to on -site electrical contractor. 2. Provide storage containers for equipment as needed and dumpsters for disposal of all packing cardboard and debris. HAMy Documents\Projects and Contracts, 2008\Westside ParkTighting, Musco\Westside Park PIA SOW 2.doc 3. Provide adequate security to protect Musco delivered products from theft, vandalism or damage during the installation. 4. Confirm the existing underground utilities and irrigation systems have been located and are clearly marked so as to avoid damage from construction equipment. Repair any such damage during construction. 5. Provide materials and equipment to install (40) LSS foundations as specified on Layout. 6. Provide and install ground rods (one per pole location) for lightning protection per NFPA 780 Code and local building codes. Poles 75'or shorter should use a #2 copper conductor to the ground rod. Poles taller than 75' should use a #2/0 copper conductor. For standard clay soil, the ground rod must not be less than 5/8"x 10' long, driven vertically into the soil until point is 10' below grade. Ground rods must be installed in soil, not in the concrete backfill. Exothermic fusion welding is preferred to clamping to join ground wire and rod. Refer to the latest edition of MFPA 780 for additional information. 7. Remove spoils to owner designated location at jobsite. 8. Provide materials and equipment to assemble (239) LSG fixtures. 9. Provide equipment and materials to assemble and erect (40) LSS Poles. 10. Keep all heavy equipment off of playing fields when possible. Repair damage to grounds which exceeds that which would be expected. Indentations caused by heavy equipment traveling over dry ground would be an example of expected damage. Ruts and sod damage caused by equipment traveling over wet grounds would be an example of damage requiring repair. 11. Provide startup and aiming as required to provide complete and operating sports lighting system. HAMy Domnents\Prolects and Contracts, 2008\Westside ParkTighting, Musco\Westside Park PIA SOW 2.doc Exhibit C Lighting Spec Presented to: West Side Park Baseball Lighting Project La Porte, TX November 13, 2008 Project #136858 LighteStructure 2��Ai� Submitted by: Musco Sports Lighting, LLC 2107 Stewart Road Muscatine, Iowa 52761 Local Phone: 563/263-2281 Toll Free: 800/756-1205 Fax: 800/374-6402 LSG Spec - Revision Level: 8 © 2005, 2008 Musco Sports Lighting, LLC This information is provided by Musco exclusively for this project. Reproduction or distribution of the enclosed documents or information without the written permission of Musco Sports Lighting, LLC is prohibited. Revision 8 — Issued 05,23.08 SECTION 16526 — SPORTS FIELD LIGHTING PART 1 — GENERAL 1.1 SUMMARY A. Work covered by this section of the specifications shall conform to the contract documents, engineering plans as well as state and local codes. B. The purpose of these specifications is to define the performance and design standards for West Side Park La Porte, TX. The manufacturer / contractor shall supply lighting equipment to meet or exceed the standards set forth by the criteria set forth in these specifications. C. The sports lighting will be for the following fields: 1. Baseball Pinto 1 2. Baseball Pinto 2 3. Baseball Mustang 1 4. Baseball Mustang 2 5. Baseball Pony 1 6. Baseball Palomino 1 7. Baseball Bronco 1 8. Baseball Bronco 2 9. Baseball Shetland 1 10. Baseball Shetland 2 D. The primary goals of this sports lighting project are: 1. Life Cycle Cost: In order to reduce the operating budget, the preferred lighting system shall be energy efficient and cost effective to operate. All maintenance costs shall be eliminated, and the field(s) should be proactively monitored to detect fixture outages over a 25 year life cycle. To allow for optimized use of labor resources and avoid unneeded operation of the facility, customer requires a remote on/off control system for the lighting system. 2. Guaranteed Light Levels: Selection of appropriate light levels impact the safety of the players and the enjoyment of spectators. Therefore the lighting system shall be designed such that the light levels are guaranteed for a period of 25 years. 1.2 LIGHTING PERFORMANCE A. Performance Requirements: Playing surfaces shall be lit to an average constant light level and uniformity as specified in the chart below. Light levels shall be held constant for 25 years. Lighting calculations shall be developed and field measurements taken on the grid spacing with the minimum number of grid points specified below. Measured average illumination level shall be +/- 10% of predicted mean in accordance with IESNA RP-6-01, and measured at the first 100 hours of operation. Area of Lighting Average Constant Light Levels Maximum to Minimum Uniformity Ratio Grid Points Grid Spacing Baseball Pinto 1(infield) 50 footcandles 2.0:1.0 25 20' x 20' Baseball Pinto 1 outfield 30 footcandles 2.5:1.0 51 20' x 20' Baseball Pinto 2(infield) 50 footcandles 2.0:1.0 25 20' x 20' Baseball Pinto 2(outfield) 30 footcandles 2.5:1.0 51 20' x 20' Page 1 Revision 8 - Issued 05.23.08 Baseball Mustang 1(infield) 50 footcandles 2.0:1.0 25 20' x 20' Baseball Mustang 1(outfield) 30 footcandles 2.5:1.0 69 20' x 20' Baseball Mustang 2(infield) 50 footcandles 2.0:1.0 25 20' x 20' Baseball Mustang 2 (outfield) 30 footcandles 2.5:1.0 69 20' x 20' Baseball Pony 1(infield) 50 footcandles 2.0:1.0 25 30' x 30' Baseball Pony 1(outfield) 30 footcandles 2.5:1.0 67 30' x 30' Baseball Palomino 1(infield) 50 footcandles 2.0:1.0 25 30' x 30' Baseball Palomino 1(outfield) 30 footcandles 2.5:1.0 107 30' x 30' Baseball Bronco 1(infield) 50 footcandles 2.0:1.0 25 30' x 30' Baseball Bronco 1(outfield) 30 footcandles 2.0:1.0 51 30' x 30' Baseball Bronco 2(infield) 50 footcandles 2.0:1.0 25 30' x 30' Baseball Bronco 2(outfield) 30 footcandles 2.0:1.0 51 30' x 30' Baseball Shetland 1(infield) 50 footcandles 2.0:1.0 25 20' x 20' Baseball Shetland 1(outfield) 30 footcandles 2.5:1.0 38 20' x 20' Baseball Shetland 2(infield) 50 footcandles 2.0:1.0 25 20' x 20' Baseball Shetland 2(outfield) 30 footcandles 2.0:1.0 38 20' x 20' B. Mounting Heights: To ensure proper aiming angles for reduced glare and to provide better playability, the pole mounting heights from the playing field surface shall be 60' for Al-A4, A5-A6, A13-A15, 131-134, 1314-1315, 1316-1317, C5-C8 70' for Al0, A11, Al 2, 135-136, 138, 139-1310, B12-1313, C1-C4 80' for AT A8, A9, B7, B11 C. Security Fixtures: There shall be (1) 1000 W metal halide fixture on the following poles: A4, A6, Al and C2. This fixture shall be provided by the field lighting manufacturer and integrated into the lighting system with remote ballast and supporting electrical equipment in aluminum enclosures mounted approximately 10' above grade. These fixtures shall be mounted at top of the pole (non -field side) and be on a separate circuit from the field lighting. 1.3 LIFE CYCLE COSTS A. Energy Consumption: The average kWh consumption for the field lighting system shall be 374.0 kWh or less. B. Complete Lamp Replacement: Manufacturer shall include all group lamp replacements required to provide 25 years of operation based upon 600 usage hours per year. C. Preventative and Spot Maintenance: Manufacturer shall provide all preventative and spot maintenance, including parts and labor for 25 years from the date of equipment shipment. Individual lamp outages shall be repaired when the usage of any field is materially impacted. Owner agrees to check fuses in the event of a luminaire outage. D. Remote Monitoring System: System shall monitor lighting performance and notify manufacturer if individual luminaire outage is detected so that appropriate maintenance can be scheduled. The manufacturer shall notify the owner of outages within 24 hours, or the next business day. The controller shall determine switch position (Manual or Auto) and contactor status (open or closed). E. Remote Lighting Control System: System shall allow owner and users with a security code to schedule on/off system operation via a web site, phone, fax or email up to ten years in advance. Manufacturer shall provide and maintain a two-way TCP/IP communication link. Trained staff shall be available 24/7 to provide scheduling support and assist with reporting needs. Page 2 Revision 8 — Issued 05.23.08 The owner may assign various security levels to schedulers by function and/or fields. This function must be flexible to allow a range of privileges such as full scheduling capabilities for all fields, to only having permission to execute "early off" commands by phone. Controller shall accept and store 7-day schedules, be protected against memory loss during power outages, and shall reboot once power is regained and execute any commands that would have occurred during outage. F. Management Tools: Manufacturer shall provide a web -based database of actual field usage and provide reports by facility and user group. G. Communication Costs: Manufacturer shall include communication costs for operating the controls and monitoring system for a period of 25 years. 1.4 WARRANTY AND GUARANTEE A. 25-Year Warranty: Each manufacturer shall supply a signed warranty covering the entire system for 25 years. Warranty shall guarantee light levels; lamp replacements; system energy consumption; monitoring, maintenance and control services, spill light control, and structural integrity. Manufacturer shall maintain specifically -funded financial reserves to assure fulfillment of the warranty for the full term. Warranty may exclude fuses, storm damage, vandalism, abuse and unauthorized repairs or alterations. 1.5 DELIVERY TIMING A. Equipment On -Site: The equipment must be on -site 1-2 weeks (pre -cast concrete bases) and 4-6 weeks (poles and lights) from receipt of approved submittals and receipt of complete order information. PART 2 — PRODUCT 2.1 LIGHTING SYSTEM CONSTRUCTION A. System Description: Lighting system shall consist of the following: 1. Galvanized steel poles and crossarm assembly 2. Pre -stressed concrete base embedded in concrete backfill. Alternate may be an anchor bolt foundation designed such that the steel pole and any exposed steel portion of the foundation be located a minimum of 18 inches above final grade. The concrete shall be allowed to harden for a minimum of 28 days before the pole stress is applied. Concrete poles, direct burial steel poles and wood poles will not be allowed. 3. All luminaires shall be constructed with a die-cast aluminum housing to protect the luminaire reflector system or shall be one piece symmetrically spun, parabolic aluminum reflector, with outer hail guard. a. Field Lighting: 1500 W Metal Halide Lamp b. Security Lighting: 1000 W Metal Halide Lamp 4. Manufacturer will remote all ballasts and supporting electrical equipment in aluminum enclosures mounted approximately 10' above grade. The enclosures shall include ballast, capacitor and fusing for each luminaire. Safety disconnect per circuit for each pole structure will be located in the enclosure. 5. Wire harness complete with an abrasion protection sleeve, strain relief and plug-in connections for fast, trouble -free installation. 6. Controls and Monitoring Cabinet to provide on -off control and monitoring of the lighting system, constructed of NEMA Type 4 aluminum. Communication method shall be provided by manufacturer. Cabinet shall contain custom configured contactor modules for 30, 60, and 100 amps, labeled to match field diagrams and electrical design. Manual Off -On -Auto selector switches shall be provided. Page 3 Revision 8 — Issued 05.23.08 7. Security Fixtures on poles A4, A6, C2 and A15: 1000w metal halide fixture on a separate circuit from field fixtures. B. Manufacturing Requirements: All components shall be designed and manufactured as a system. All luminaires, wire harnesses, ballast and other enclosures shall be factory assembled, aimed, wired and tested. C. Durability: All exposed components shall be constructed of corrosion resistant material and/or coated to help prevent corrosion. All exposed steel shall be hot dip galvanized per ASTM A123. All exposed hardware and fasteners shall be stainless steel of at least 18-8 grade, passivated and polymer coated to prevent possible galvanic corrosion to adjoining metals. All exposed aluminum shall be powder coated with high performance polyester. All exterior reflective inserts shall be anodized, coated with a clear, high gloss, durable fluorocarbon, and protected from direct environmental exposure to prevent reflective degradation or corrosion. All wiring shall be enclosed within the crossarms, pole, or electrical components enclosure. D. Lightning Protection: All structures shall be equipped with lightning protection meeting NFPA 780 standards. Contractor shall supply and install a ground rod of not less than 5/8" in diameter and 8' in length, with a minimum of 10' embedment. Ground rod should be connected to the structure by a copper main down conductor with a minimum size of #2 for poles with less than 75' mounting height and 2/0 for poles with more than 75' mounting height. E. Safety: All system components shall be UL Listed for the appropriate application. F. Electric Power Requirements for the Sports Lighting Equipment: 1. Electric power: 480 Volt, 3 Phase 2. Maximum total voltage drop: Voltage drop to the disconnect switch located on the poles shall not exceed three (3) percent of the rated voltage. 2.2 STRUCTURAL PARAMETERS A. Support Structure Wind Load Strength: Poles and other support structures, brackets, arms, bases, anchorages and foundations shall be determined based on the 2006 edition of the International Building Code, wind speed of 120, exposure category C. Luminaire, visor, and crossarm shall withstand 150 mph winds and maintain luminaire aiming alignment. B. Structural Design: The stress analysis and safety factor of the poles shall conform to AASHTO Standard Specifications for Structural Supports for Highway Signs, Luminaires and Traffic Signals. C. Soil Conditions: The design criteria for these specifications are based on soil design parameters as outlined in the geotechnical report. If a geotechnical report is not provided by the owner, the foundation design shall be based on soils that meet or exceed those of a Class 5 material as defined by 2006 IBC, Table 1804.2 D. Foundation Drawings: Project specific foundation drawings stamped by a registered engineer in the state where the project is located are required. The foundation drawings must list the moment, shear (horizontal) force, and axial (vertical) force at ground level for each pole. These drawings must be submitted at time of bid to allow for accurate pricing. PART 3 — EXECUTION 3.1 FIELD QUALITY CONTROL A. Illumination Measurements: Upon substantial completion of the project and in the presence of the Contractor, Project Engineer, Owner's Representative, and Manufacturer's Representative, illumination measurements shall be taken and verified. The illumination measurements shall be conducted in accordance with IESNA RP-6-01, Appendix B. Page 4 Revision 8 — Issued 05.23.08 B. Correcting Non -Conformance: If, in the opinion of the Owner or his appointed Representative, the actual performance levels including footcandles, uniformity ratios, and maximum kilowatt consumptions are not in conformance with the requirements of the performance specifications and submitted information, the Musco shall be liable to any or all of the following: 1. Musco shall at his expense provide and install any necessary additional fixtures to meet the minimum lighting standards. The Manufacturer or Contractor shall also either replace the existing poles to meet the new wind load (EPA) requirements or verify by certification by a licensed structural engineer that the existing poles will withstand the additional wind load. 2. Musco shall minimize the Owner's additional long term fixture maintenance and energy consumption costs created by the additional fixtures by reimbursing the Owner the amount of $1,000.00 (one thousand dollars) for each additional fixture required. 3. Musco shall remove the entire unacceptable lighting system and install a new lighting system to meet the specifications. Page 5 Revision 8 — Issued 05.23.08 SUBMITTAL INFORMATION Design Submittal Data Checklist and Certification All items listed below are mandatory, shall comply with the specification and be submitted according to pre -bid submittal requirements Included Tab Item Description Letter/ Listing of all information being submitted must be included on the table of contents. List the name A Checklist of the manufacturer's local representative and his/her phone number. Signed submittal checklist to be included. Lighting design drawing(s) showing: a. Field Name, date, file number, prepared by, and other pertinent data b. Outline of field(s) being lighted, as well as pole locations referenced to the center of the field (x & y), or homeplate for baseball/softball fields. Illuminance levels at grid spacing specified c. Pole height, number of fixtures per pole, as well as luminaire information including wattage, On Field lumens and optics B Lighting d. Height of meter above field surface Design e. Summary table showing the number and spacing of grid points; average, minimum and maximum illuminance levels in foot candles (fc); uniformity including maximum to minimum ratio, coefficient of variance and uniformity gradient; number of luminaries, total kilowatts, average tilt factor; light loss factor. f. Alternate manufacturers shall provide both initial and maintained light scans using a maximum 0.70 Light Loss Factor to calculate maintained values. Photometric Provide photometric report for a typical luminaire used showing candela tabulations as defined by D Report IESNA Publication LM-35-02. Photometric data shall be certified by laboratory with current National Voluntary Laboratory Accreditation Program or an independent testing facility with over 5 years experience. Life Cycle Document life cycle cost calculations as defined in the specification. Identify energy costs for E Cost operating the luminaires, maintenance cost for the system including spot lamp replacement, and calculation group relamping costs. All costs should be based on 25 Years. F Luminaire Aiming Document showing each luminaire's aiming angle and the poles on which the luminaries are Summary mounted. Each aiming point shall identify the type of luminaire. Structural Pole structural calculations and foundation design showing foundation shape, depth backfill G Calculations requirements, rebar and anchor bolts (if required). Pole base reaction forces shall be shown on the foundation drawing along with soil bearing pressures. Design must be stamped by a structural engineer in the state of Texas. Control and Manufacturer shall provide written definition and schematics for automated control system to H Monitoring include monitoring. They will also provide examples of system reporting and access for numbers for personal contact tooperate the system. Electrical If bidding an alternate system, manufacturer must include a revised electrical distribution plan distribution including changes to service entrance, panels and wire sizing, signed by a licensed Electrical tans En ineer in the state of Texas. Provide performance guarantee including a written commitment to undertake all. corrections J Performance required to meet the performance requirements noted in these specifications at no expense to the Guarantee owner. Light levels must be guaranteed per specification for 25 years. Constant light systems shall provide independent 3`dparty test data stamped by a certified engineer. K Warranty Provide written warranty information including all terms and conditions. L Project Manufacturer to provide a list of project references of similar products completed within the past References three years. M Product Complete set of product brochures for all components, including a complete parts list and LIL Information Listings. N Non- Compliance Manufacturer shall list all items that do not comply with the specifications. Manufacturer shall sign off that all requirements of the specifications have been met at that the O Compliance manufacturer will be responsible for any future costs incurred to bring their equipment into com liance for all items not meeting specifications and not listed in item N — Non -Compliance Manufacturer: Contact Name: Signature: Date: Page 6 Revision 8 — Issued 05.23.08 Exhibit D Constant 25 Year Warranty Life Cycle Cost Savings 00 . 9Pame- a �� 5 '� q. 25-Year Product Assurance & Warranty Program West Side Park — La Porte, Texas-136858 For 25 years, Musco Lighting will provide all materials and labor to maintain operation of your lighting system to original design criteria. Our products and services are guaranteed to perform on your project as follows: Light Average constant light levels of 50 footcandles infield and 30 footcandles outfield are guaranteed through Musco's Smart LampM and service technology, within the Illumination Engineering Society of North America RP-6-01 standards of +/-10% of the design criteria. Musco will electronically monitor lamp operation and operating hours, and will group relamp if needed based on project usage. Initial lamps provided: 5,000 hours Group lamp replacements 2 x 5000 hours 10,000 hours Maximum hours of lamp warranty and maintenance: 15,000 hours Individual lamp outages that occur during the lamp warranty and maintenance period stated above are repaired when the usage of any field is materially impacted. If actual usage exceeds 15,000 hours, the customer will be required to purchase lamp replacements in order to maintain the warranty to the end of twenty-five years. Energy Consumption Energy consumption for your lighting system will average 373.8 kW per hour, and will not exceed 406.3 kW per hour at the maximum. Exhibit A provides a 25-year energy cost model based upon the customer provided utility rate and anticipated hours of usage. Changes in rates or usage will proportionately change the costs. Monitoring, Maintenance and Control Services Musco shall monitor the performance of your lighting system, including on/off status, hours of usage and lamp outages. If fixture outages that affect playability are detected, Musco will contact you and proactively dispatch technicians. On -off control of your lighting system is provided via an easy -to -use web site scheduling system, phone, fax or email. Our trained Control -Link Central TM' staff is available toll -free 24/7. Regular usage reports will be sent to you and are always available on Control - Link Central's web site. Spill Light Control Spill light readings at identified locations are guaranteed to be controlled to the values provided in Musco's design documents for your project. Readings shall be within the Illumination Engineering Society of North America RP-6-01 standards of +/ 10% of the design criteria. Structural Integrity Your project has been designed to _IBC-C, 2006, 120 MPH Windsoeed. Structural integrity of equipment manufactured by Musco is guaranteed. To further assure compliance, Musco will provide the Owner with this signed contract guaranteeing the comprehensive service for the 25-year period. See additional information on back page of warranty - zaa5 2X-7 taus tgnnrV }4 �'CYd=Ns DATE ACQRD- CERTIFICATE 4F LIABILITY INSURANCE 12/292/2908DIYY) (08 PRODUCER 1-800-247-7756 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPHOLDER. T141S CERTIFICATEDOES NOT�AMEND.THECEXTENDA TE Holmes Murphy &Assoc - WDM OR PO Box 9207 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Des Moines IA 50306-9207 INSURERS AFFORDING COVERAGE INSURED INSURER A!EMP1ers Mutual Casualty CO. A- XII musco Sports Lighting, LLC Attn: Karyl ThomasINSURER B: St . Paul Fire &Marine Insurance Company A XV INSURER C A3ag�loyers Mutual Casualty Co • A- XII r P O BOX SOS INSURER D: 0skaloosa,1 LA 52577 INSURER COVERAGES THE ANY MAY POLICIES. INSR POLICIES OF INSURANCE LISTED REQUIREMENT, TERM OR CONDITION PERTAIN, THE INSURANCE AFFORDED AGGREGATE LIMITS SHOWN TYPE OF INSURANCEDATE GENERAL LIABILITY X COMMERCIAL GENERAL LIABILITY "1 CLAiMSMADE X�j OCCUR ' Li.ab BELOW HAVE BEEN ISSUED TO THE INSURED OF ANY CONTRACT OR OTHER BY THE POLICIES DESCRIBED HEREIN MAY HAVE BEEN REDUCED BY PAID POLICY NUMBER 2DS362509 NAMED ABOVE DOCUMENT WITH IS SUBJECT CLAIMS. POLICYY EFFECTIVE ;POLICY iMMIDDN)O 07/01/08 FOR THE POLICY RESPECT TO WHICH TO ALL THE TERMS, EXPiRATivN I 07/01/09 4 PERIOD INDICATED. NOTWITHSTANDING THIS CERTIFICATE MAY BE ISSUED OR EXCLUSIONS AND CONDITIONS OF SUCH LIMITS EACH OCCURRENCE $ 1,000,000 A FIRE DAMAGE (Any one fire) $ 300 , 000 MED EXP (Any one person) I $ 15,000 PERSONAL & ADV INJURY $ 1, 000 , 000 GENERAL AGGREGATE $ 2,000, 000 I X Contractual FRODUC T S - COMPiOP AGG $2,000,000 1 1 GEI� L AGGREGATE LIMIT APPLIES PER: I POLICY X1 PRO X LOC AUTOMOBILE LIABILITY 2E5362509 07/01/08 - 07/01/09 COMBINED SINGLE LIMIT (Ea axident) $1,000,000 A " X ANY AUTO I` ALL OWNED AUTOS I H SCHEDULED AUTOS I BODILY INJURY (Per person) $ X i HIRED AUTOS `{Per BODILY INJURY $ NON -OWNED AUTOS accident) PROPERTY DAMAGE !Per arri¢enit $ GARAGE LIABILITY ANY AUTO AUTO ONLY -EA ACCIDENT $ OTHER THAN ACC AUTOONLY: AGG $ B �EXCESS LIABILITY OCCUR CLAIMS MADE QK05501368 07/01/08 i I 07/01/09 OCCURRENCE $ 10,000,000 [EACH AGGREGATE $ 10,000,000 $ - — DEDUCTIBLE $ RETENTION $ -, Y!rORKEP.S COMPENSATION AND EMPLOYERS' 2SS362509 I2Z5362509 2P5362509 2M5362509 07/01108 � 07/01/08 07, _ __ 07/01l09 j 07/01/09 07/01/09 07/01/09 VC X VSTATU- - � uznr�n iTi_. F _ $500,000 A C A A E.L. DISEASE- EA EMPLOYEE $ 500, 000 E.L. DISFASE-POLICY! IMIT , S 500, 000 A THER OLeased/Rented Equipment i �2C5362509 I 07/01/08 +J 07/01/09 11 Limit 300,000 (Deductible 10,000 DESCRIPTION OF OPERATIONS!LOCATIONS/VEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS RE: West Side Park, No. 136858 City of La Porte, Randall Porterfield Arch, Inc., Architects, and Patak Construction, Inc. are included as Additional Insureds on the GL policy as their interests may appear. Waiver of Subrogation in favor of Additional Insureds on the GL & WC policies as their interests may appear. City of La Porte 1322 S. Broadway iLa Porte, TX 77571 USA ACORD 26S (7197) ssteinbachwdsm 10704403 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WALL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR AUTHORIZED REPRESENTATIVE nrnun CnRDARATInN 19RR IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). if SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing Insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25S (7/97) 00 MUSCO ` tf 25-Year Product Assurance & Warranty Program Project Name: West Side Park Project Number: 136858 Covered Products: Light Structure Green. Controls and Monitoring Fixture Quantity: 239 Lamp Type:1500 Watt Smart LampTm Number of Group Lamp Replacements: Two Date Issued: Date of Shipment Expiration: Enter date + 25 years or 15,000 hours, whichever occurs first Service under this Contract is provided by Musco Sports Lighting, LLC ('Musco") or an authorized servicer approved by Musco. Services performed under this Contract shall consist of furnishing labor and parts necessary to restore the operation of the Covered Product(s) to original design criteria provided such service is necessitated by failure of the Covered Product(s) during normal usage. This Contract covers Products) consisting of Musco's Green Generation Lighting` with Control Link< and any additional Musco manufactured product as listed above. 'We". 'us` and 'our" mean Musco 'You- and 'your mean the purchaser of the Covered Product(s) No one has the authority to change this Contract without the prior written approval of Musco. Muscro shall not assume responsibility for their agents or assignees other than as described below if there is a conflict between the terms of this Contract and information communicated either orally or in writing by one or more of our employees or agents, this Contract shall control. Additional Provisions Availability of Service: Control -Link Central` operators shall be available 2417 via web site, phone, fax or email. Maintenance service specialists shall be available 8 AM to 5PM Central Time, and services shall be rendered during these same hours in your local time zone. Monday through Friday (with the exception of national holidays). Hours of operation are subject to change without notice to you. Musco will exercise all reasonable efforts to perform service under this Contract, but will not be responsible for delays or failure in performing such services caused by adverse weather conditions.. acts of any government, failure of transportation, accidents, riots, war, labor actions or strikes or other causes beyond its control. 2. Determination of Repairs: Musco will utilize the field monitoring system and any information provided by the customer to determine when the usage of the field is materially impacted. From this information, Musco will determine needed repair andlor replacement of Covered Product(s) and parts. Repair will be with product(s) of like kind and quality. 1 Your Requirements Under this Contract: You must meet all electrical requirements as specified by the manufacturer In addition, you promise and assure: full cooperation with Musco. Musco's technicians and authorized servicers during telephone diagnosis and repair of the Covered Product(s); reasonable accessibility of the Covered Product(s); a non -threatening and safe environment for service, You agree to deck fuses and to replace fuses as needed. Musco provides spare fuses and a fuse puller in the lowest alpha -numeric numbered enclosure Mu= will replenish spare fuses used. 4. Service Limitations - This Contract does not cover: Maintenance,. repair or replacement necessitated by loss or damage resulting from any external causes such as, but not limited to, theft, environmental conditions, negligencc misuse. abuse, improper efectricalipower supply, unauthorized repairs by third parties, attachments, damage to cabinetry, equipment modifications. vandalism, animal or insect infestation, physical damage to Covered Products parts or components, failure of existing structures, supporting electrical systems or any non-Musco equipment. or acts of Godtnature (including, but not limited to: earthquake, flood. tornadoes, typhoons, hurricanes or lightning). 5. Contract Limitations: a. EXCLUSIONS FROM COVERAGE IN NO EVENT WILL MUSCO BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHiCH INCLUDE, BUT ARE NOT LIMITED TO, ANY DELAY IN RENDERING SERVICE OR LOSS OF USE DURING THE REPAIR PERIOD OF THE COVERED PRODUCTS) OR WHILE OTHERWISE AWAITING PARTS b. Limitation of Liability- To the extent permitted by applicable law, the liability of Musco, if any, for any allegedly defective Covered Product(s) or components shall be limited to repair or replacement of the Covered Product(s) or components at Musco's option. THIS CONTRACT IS YOUR SOLE EXPRESS WARRANTY WITH RESPECT TO THE COVERED PRODUCT(S). ALL IMPLIED WARRANTIES WITH RESPECT TO THE COVERED PRODUCT(S) INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY EXCLUDED. c.. Musco requires reasonable access for a crane or man lift equipment to service the fighting system. Musco will not be responsible for damage from operating the vehicle on the property when the equipment is operated in the prescribed manner over the designated access route. 6. Transfer and Assignment: You shall not have the right to assign or otherwise transfer your rights and obligations under this Contract except with the prior written consent of Musco provided. however, that a successor in interest by merger, operation of law. assignment or purchase or otherwise of your entire business shall acquire all of your interests under this Contract. 7. Governing Law: Unless otherwise governed by applicable state law, the Contract shall be interpreted and enforced according to the laws of the State of Iowa_ 8. Subrogation: In the event Musco repairs or replaces any Covered Product(s), parts or components due to any defect for which the manufacturer or its agents or suppliers may be legally responsible, you agree to assign your rights of recovery to Musco. You will be reimbursed for any reasonable costs and expenses you may incur in connection with the assignment of your rights. You will be made whole before Musco retains any amounts it may recover. Signature: Vice President of Sates Exhibit A West Side Park La Porte, TX Prepared for: Mr. Stephen Barr, City of La Porte 11/19/08 Prior Technology Light. S �,F,Fi►.l Your Savings Hours 15,000 15,000 Average kW Energy $976,860 $560,694 $416,166 Group Relamp $251,250 $0 $251,250 Lamp Maintenance $3,750 $0 $3,750 Controls - Energy $97,686 $0 $97,686 25-Year Life Cycle Cost $1,329,546 $560,694 $768,852 Assumptions Field Name Annual Operating Hours Energy Prior Technology Cost per kWh Fixtures Avg kW Light -Structure Green Fixtures Avg kW Controls Energy Savings All Fields 600 $0.10 402 651.2 239 373.8 10.0% Ballfield 1 Pinto Ballfield 2 Pinto Ballfield 3 Mustang Ballfield 4 Mustang Ballfield 5 Pony Ballfield 6 Palomino Ballfield 7 Bronco Ballfield 8 Bronco Ballfield 9 Shetland Ballfield 10 Shetland Security fixtures NOTE: Life cycle costs are based upon the assumptions given by the customer above. Any variation in this data will change the life cycle cost proportionately. Group Relamp calculates using a per lamp replacement cost of $125, including parts, equipment, and labor. Useful lamp life of Prior Technology is 3000 hours. Musco guarantees the average Light -Structure Green system kW and 5000 hours useful life of the lamp. © 2005, 2006 Musco Lighting W25YA4 - Patent Pending 136858 PV8 Crystal Arnold MUE!W, We Make It Happen 11/12 REQUEST FOR CITY COUNCIL AGENDA ITEM Agenda Date Requested: December 8, 2008 Requested By: Tim TietiensJ,P,j-r[ Ao Department: Planning Report: X Resolution: Ordinance: Exhibits: l) Letter from Morgan's Point City Administrator 2) Area Map R!"61_ 5 Appropriation Source of Funds: N/A Account Number: N/A Amount Budgeted: N/A Amount Requested: N/A Budgeted Item: _YES X NO The City of Morgan's Point has approached the City of La Porte for authorization to utilize a portion of the Donaldson Ave. Right -of -Way as the westernmost leg of its proposed hike and bike trail to be funded by the Port of Houston Authority. Currently, no public infrastructure is located within the Donaldson right-of-way. Staff s research has determined that the entire right-of-way of Donaldson Ave. (60' wide) is within the city limits of La Porte and therefore, an Interlocal Agreement between the two cities will be required to facilitate this request. The Port of Houston Authority has yet to determine the exact location of the hike and bike trail within the Donaldson Ave. Right -of -Way and will work with the City of La Porte to establish the best route with the least impact on existing vegetation and trees as well as any future infrastructure that may be constructed within the subject right-of-way. Action Reauired by Council: Provide guidance to staff to Council's position on entering into an Interlocal Agreement with the of Morgan's Point for use of a portion of the Donaldson Ave. Right -of -Way for a proposed bike trail. Ron Bo 2 /00 Date CIfy of Morgan's Point 1415 E. Main Street * Morgan's Point, TX 77571 * Iro 0 l i 1f; 12 FAX (281) 471-7473 3 a 200$ October 27, 2008 Tim Tiet ens Planning Director City of La Porte 604 W. Fairmont Parkway LaPorte, Texas 77571 Re: Hike & Bike Trail Dear Mr. Tietjens: At it's September 9, 2008 meeting, the Morgan's Point City Council took action to commit to the Donaldson Street right-of-way for the western portion of its Hike & Bike Trail. Records of the Harris County Appraisal Office show the Donaldson Street right -of way is owned jointly by the City of La Porte (western halt) and Harris County (eastern half). Harris County does not acknowledge ownership of its portion. Funding for this portion of the Hike & Bike Trail is being provided by the Port of Houston Authority. Requests for other property for this trail within the City of Morgan's Point have been denied. Therefore, the City of Morgan's Point, requests, respectfully, that the City of La Porte grant the City of Morgan's Point permission to use La Porte's portion of the Donaldson Street right-of- way for this portion of the Hike & Bike Trail. Completion of the Hike & Bike Trail will benefit not only Morgan's Point, but also the City of La Porte. Let me know if any further information is required. Thank you for your consideration of our request. Very Trul Your , JKenays City Administrator Home of the Yellow Rose of Texas rx�/26/% % z 9 tI