Professional FaxPurchasing Department – 2 nd
Construction Manager At Risk for Pediatric Program Renovations at
University
Hospital Medical Center.
AMENDMENT NO. 2
QUESTIONS AND ANSWERS
__________________________________________________________________________________
The purpose of Amendment No. 2 is to extend the proposal due date,
provide the Questions and
Answers to the RFCSP-215-12-046-CNST, clarify RFCSP vs. RFP as well
as provide a sample draft of
the Construction Manager at Risk Agreement.
Extension to the proposal due date:
Due to the posting of Amendment 2, the due date for proposals is
hereby changed from February 1, 2016 at
2:00 p.m. CST, to February 2, 2016 at 2:00 p.m. All other dates
remain the same.
Questions and Answers:
Q1:
The schedule does not provide any detail regarding design, GMP, Sub
Bidding, or Construction for the IDF
Upgrades, Security Upgrades, Medical Equipment and Nurse Call. Are
we to assume that Design will be
completed by 3/8/16 in order for the GMP to occur in March ’16, Sub
Bidding in April ‘ 16, Construction
to start by May ’16, and Construction to end by the latest date
indicated for each of these projects.
A1:
IDF Rooms and IT cabling, as well as Medical Equipment will be
designed with each floor and will
be included in “the Work” of the CMAR for each floor. The Nurse
Call System, and the
Security Systems will be installed by third party UHS coordinated
by the CMAR under UHS’s
direction.
The IDF shaft work is a project which will not be performed by the
CMAR
IT cabling will be placed by a third party vendor, Presidio, and
the CMAR will coordinate their
work for each floor with that vendor.
Page 2 (Amendment No. 2)
Security upgrade requirements, including a pediatric elopement
prevention system, will be
placed by a third party vendor and the CMAR will coordinate their
work for each floor with that
vendor.
The Nurse Call system requirements will be placed by a thid party
vendor and the CMAR will
coordinate their work for each floor with that vendor.
Work done by the Medical Equipment Planner is being incorporated
into the design of each
floor by UHS’s Architect. In some instances the equipment may
be:
1. Owner purchase Owner installed in other cases the equipment may
be
2. Owner purchased, CMAR installed or
3. CMAR purchased CMAR installed.
The design documents for each floor will define “the Work” which
will include all systems
required for a fully functional medical facility.
Q2: The CM Contract is to be awarded by 3/8/16, however the work to
occur on Horizon 10 th Floor
indicates a GMP in January ‘16, Sub Bids in February ‘16, and
Construction to start on 2/29/16. It appears
that the GMP, Sub Bid, and Construction dates for 10 th Flr Horizon
work should be adjusted to start after
3/8/16.
A2: This is the most current schedule.
Q3: The schedule provided in the RFP is very detailed, and appears
to include work in areas provided by
others that are not intended to be included in the scope of
services bidders are to include. To assemble
accurate cost data for this RFP, I need help identifying the
pre-construction and construction schedule
durations for each component below:
Base Project - $19.2mm
§ Preconstruction Duration:
§ Preconstruction Duration:
§ Preconstruction Duration:
§ Construction Duration:
§ Preconstruction Duration:
§ Construction Duration:
§ Preconstruction Duration:
§ Construction Duration:
o Horizon Tower IDF/Security/Nurse Call Upgrades, 5, 6, 8, and 11
th floors
§ Preconstruction Duration:
§ Construction Duration:
A3: Preconstruction Services will be provided concurrently with the
Design activities.. See also
A1.
Q4: On page 40 Financial / Legal / Contractual
1. Financial: a
a. Is it required to submit the last 3 years of audited financial
statements?
A4: Yes
Clarification RFCSP vs. RFP
All reference to RFCSP within the solicitation documents is hereby
removed and replace with “RFP” with
the exception if the Solicitation number ‘RFCSP-215-12-046-CNST”
which for tracking purposes will
remain the same. This solicitation is a request for proposal.
Construction Manager at Risk Agreement
Attached to this Amendment is the sample draft of the Construction
Manager at Risk Agreement for review
as requested in the pre-submittal meeting held on January 6,
2016.
NOTICE TO BIDDERS:
A. Receipt of this Amendment shall be acknowledged on the Submittal
Form.
B. Respondents are required to sign this amendment acknowledging
receipt and return to the
UHS Procurement Department in their submittal response packet. C.
This Amendment Form is part of the RFCSP-215-12-046-CNST documents
for the above referenced
project and shall be incorporated integrally therewith.
D. Each respondent shall make necessary adjustments and provide
their submittals with full knowledge
of all modifications, clarifications, and supplemental data
included therein.
Company Name:
_________________________________________________________
Vendor Signature Date
Construction Manager-at-Risk Agreement (Contract No.
________________________) Page 1 of 96 COATS, ROSE, YALE, RYMAN
& LEE, P.C.
STATE OF TEXAS § CONSTRUCTION MANAGER AT RISK § AGREEMENT WITH §
_____________________________________
COUNTY OF BEXAR § CONTRACT NO. ________________
This Construction Manager at Risk Agreement with
_______________________ (“Agreement” or “Contract”) is made and
entered into on this ______ day of _______________, 20____________,
by and between the Bexar County Hospital District d/b/a University
Health System, a political subdivision of
the State of Texas, hereinafter called “Owner” and
________________________, whose principal corporate headquarters
are located at ________________________, hereinafter also called
“Construction Manager,” (each also hereinafter referred to as
“Party” individually or “Parties” collectively).
Table of Contents I. Definitions
.................................................................................................................................
2 II. The Project
..............................................................................................................................
11 III. Agreement Documents
...........................................................................................................
11 IV. Owner’s Duties
........................................................................................................................
14 V. Construction Manager’s Standard of Care
............................................................................
16 VI. Construction Manager’s Representations and Warranties
................................................... 16 VII.
Construction Manager’s Duties
..............................................................................................
21 VIII. Assignment of Construction Manager’s Personnel to the
Performance of Pre-Construction
and Construction Services
.....................................................................................................
27 IX. Pre-Construction Services
.....................................................................................................
27 X. Construction Phase Services
.................................................................................................
32 XI. Administration of the Contract
...............................................................................................
38 XII. Administration of Subcontracts
.............................................................................................
39 XIII. Construction Manager’s Compensation
................................................................................
42 XIV. Guaranteed Maximum Pricing
................................................................................................
49 XV. Schedule, Delays and Extensions of
Time.............................................................................
53 XVI. Changes in the
Work...............................................................................................................
55 XVII. Processing of Payments
.........................................................................................................
60 XVIII. Substantial Completion and Final Completion of the Work
.................................................. 65 XIX.
Uncovering and Correction of Work
......................................................................................
71 XX. Construction Manager’s Warranty Obligations
.....................................................................
72 XXI. Construction Manager’s
Bonds..............................................................................................
73 XXII. Construction Manager’s Insurance
........................................................................................
75 XXIII. Protection of Persons and Property
.......................................................................................
76
Construction Manager-at-Risk Agreement (Contract No.
________________________) Page 2 of 96 COATS, ROSE, YALE, RYMAN
& LEE, P.C.
XXIV. Indemnity and Liability
...........................................................................................................
79 XXV. Termination or Suspension of Agreement
.............................................................................
80 XXVI. Dispute Resolution
.................................................................................................................
84 XXVII. Miscellaneous Provisions
.......................................................................................................
85
RECITALS
WHEREAS, the Owner is undertaking the Pediatric Program Renovation
Projects at the University Health System Medical Center, located at
4502 Medical Drive, San Antonio, Texas 78229 (“Projects”) and for
which UHS has determined that it will require the services of a
Construction Manager; and
WHEREAS, the completion of the Projects may be accomplished in a
phased manner under this Contract, as more particularly described
below; and
WHEREAS, Construction Manager is qualified and has agreed to
provide the services contemplated hereunder as a Construction
Manager at Risk; and
WHEREAS, Owner has agreed to compensate Construction Manager for
these services, as provided herein;
NOW, THEREFORE, in consideration of the mutual promises,
commitments and representations herein it is hereby agreed as
follows:
I. Definitions
(1) “Additional Services” means those services which are performed
pursuant to a Contract
Amendment that are in addition to those Services required or
reasonably inferred under this Agreement.
(2) “Allowance” means an amount requested by the Owner to be
allocated by the Construction
Manager for an unknown or undetermined scope item or portion of the
Work for any estimate or bid package.
(3) “Applicable Laws” means all laws, rules, regulations, codes,
ordinances and restrictive covenants
(whether federal, state or local) of any kind governing the
Projects or the development, approval, construction, use or
occupancy of the Projects, or any portion thereof.
(4) “Architect/Engineer” means, collectively,
_______________________ the architectural and
engineering firms contracted By Owner to perform all of the
professional architectural and engineering design services, and any
licensed professionals and other personnel working under the
Architect/Engineer’s supervision, or otherwise engaged by Owner to
prepare the design for all or a portion of the Project.
(5) “As-Builts” means the Construction Manager’s detailed record
certified by Construction Manager to
show the accurate location of all elements of the Project as
constructed, the delivery of which As- Builts shall constitute
Construction Manager’s representation and warranty that such
information is complete and accurate.
(6) NOT USED.
(7) “Change Order” shall have the meaning set forth in Section
XVI.2.
Construction Manager-at-Risk Agreement (Contract No.
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& LEE, P.C.
(8) “Claim(s)” shall mean any disputed liability, obligation, loss,
harm, physical or economic damage,
penalty, action, suit, judgment, cost, expense or disbursement or
other claim of any form of liability of whatsoever kind and nature,
whether founded or unfounded, including legal fees and expenses and
costs of investigation associated therewith.
(9) “Conceptual Design” means the initial design for the Project,
to be developed during the Project
Definition Phase.
(10) “Confidential Information” means all data and information of
Owner, including all Work Product,
which Owner owns and designates as its proprietary and/or
confidential property, including but not be limited to, trade
secrets, know-how, inventions, techniques, processes, algorithms,
software programs, source code, schematics, designs, contracts,
vendor and contractor lists, financial information, operational
plans and schedules and business information in any way relating to
the Project.
(11) “Conflict of Interest” shall have the meaning set forth in
Section VI.10.
(12) “Constructability Review” shall have the meaning assigned to
such term in Section IX.6.
(13) “Construction Change Directive” shall have the meaning set
forth in Section XVI.3.
(14) “Construction Cost Limitation” means the maximum amount of
funding that has been authorized
by and is available to Owner to pay Construction Manager for the
Services and the Work; the sum of the Preconstruction Services Fee,
the Guaranteed Maximum Prices (including the Construction
Management Fees therein) and all Change Orders to be approved for
all of the Work may not exceed the Construction Cost Limitation, as
may be amended by the Owner in accordance with Section II.3.
(15) “Construction Documents” means the documents issued by the
Architect/Engineer and approved
by the Owner and Architect/Engineer setting forth in detail the
requirements for construction of the Project, including the
Drawings and Specifications that establish in detail the quality
levels of materials and systems required for the Project, as well
as any compilation of all or a part of the Construction Documents
that may be included in the Project Manual.
(16) “Construction Documents Phase” means that phase of the Project
that follows the Design
Development Phase, and culminates in the Owner’s and
Architect/Engineer’s approval of the issuance of the last Design
Package for permitting, bidding and construction of the Work
described therein.
(17) “Construction Management Fee” means the total compensation to
the Construction Manager in
the performance of the Construction Services for the following: (i)
general home office support, overhead and profit, and (ii) the
Construction Manager’s supervision (salaried, non-hourly) and
administrative staff (hourly and non-hourly) and all costs related
to such personnel for their involvement in the performance of the
Construction Services, all as more particularly described in
Section XIII.4.C. The foregoing elements of the Construction
Management Fee and any and all other general conditions type costs
to be incurred during performance of the Construction Services
shall be identified as a part of the Construction Management Fee on
the Elements of Construction Manager’s Fees (Exhibit 13), shall
only be compensated by payment of the Construction Management Fee,
and shall not be included in the Cost of the Work or the Pre-
Construction Services Fee. The Construction Management Fee does not
include the Pre- Construction Services Fee. There shall be no
duplication of any amount to be paid as Pre- Construction Services
Fee and Construction Management Fee.
(18) “Construction Manager” means________________________, engaged
by the Owner under this
Construction Manager-at-Risk Agreement (Contract No.
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Agreement to perform the Work as the Construction Manager-at-Risk
for the Project.
(19) “Construction Manager’s Contingency” means a sum that is not
allocated to or included in the
Cost of the Work, and which the parties will establish by Contract
Amendment to be available for the Construction Manager to use
during performance of Construction Services to pay for the
necessary costs to resolve errors or omissions in the Construction
Documents, Construction Manager’s mistakes not due to the
Construction Manager’s negligence or faulty performance of its
duties hereunder, or other causes that the parties cannot
reasonably foresee at the time Owner approves of an applicable
Guaranteed Maximum Price for the Work described in one or more
Design Packages. Only the amount actually expended from the
Construction Manager’s Contingency with Owner’s approval in
accordance with this Agreement will be charged as a Cost of the
Work against the Guaranteed Maximum Price for the Work, as adjusted
for approved Change Orders.
(20) “Construction Manager’s Fees” means the total sum of (i) the
Pre-Construction Services Fee
and (ii) the Construction Management Fee.
(21) “Construction Phase” means that phase of the Project that
follows issuance of Owner’s Notice
to Proceed with construction, during which physical execution of
the Work, as required by the Construction Documents occurs, and at
the conclusion of which Final Completion of the entire Project
occurs. The construction of the Project will be divided into
different Design Packages, each with different dates for
commencement and completion of the Work described therein, subject
to applicable Guaranteed Maximum Prices to be established for such
Design Packages in accordance with this Agreement.
(22) “Construction Schedule” means that schedule, and any update
thereto, prepared by the
Construction Manager and approved in writing by the Owner, which
specifies the date(s) on which the Construction Manager plans to
begin and complete various parts of the Work, including dates for
key milestones for Design Packages or other major components of the
Work, and the times when certain information and/or approvals from
the Owner and Architect/Engineer are required.
(23) “Construction Services” shall mean the Services required to be
performed by the Construction
Manager during or following the completion of the Construction
Phase, as shown on the Elements of Construction Manager’s Fees
(Exhibit 13).
(24) NOT USED.
(25) “Contract Amendment(s)” shall mean any written amendment to
this Agreement, and in the
form shown in the Form of Contract Amendment (Exhibit 23) executed
by both parties and incorporated as a part of this Agreement,
subject to Board approval whenever such approval is required by
Owner’s policies of governance.
(26) “Contract Documents” means this Agreement, including all of
the Exhibits described herein,
and all of the Construction Documents to be developed by the
Architect/Engineer and approved by Owner and/or Architect/Engineer,
as applicable.
(27) “Control Estimate” means one or more detailed estimates to be
prepared by Construction
Manager, including such line item costs therein in such detail as
the Owner may reasonably require, to enable them to anticipate and
establish pricing for each anticipated Guaranteed Maximum Price
Proposal, to ensure that the total cost to Owner to complete the
Project remains within the Construction Cost Limitation, as may be
amended by the Owner in accordance with Section II.3. The
Construction Manager shall provide to Owner an initial version of
the Control Estimate as a deliverable at the conclusion of the
Project Definition Phase. The Construction Manager shall provide to
Owner revisions and updates to the Control Estimate as specified in
Section IX.3.A. The Construction Manager shall provide, at least
one month prior to submission
Construction Manager-at-Risk Agreement (Contract No.
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& LEE, P.C.
of the first Guaranteed Maximum Price Proposal, a final version of
the Control Estimate to be used by Owner to evaluate and make
pricing decisions for the Project.
(28) “Cost of the Work” shall have the meaning assigned to such
term in Section XIII.4.B.
(29) “Day” means the calendar day unless otherwise specifically
designated.
(30) “Design Development Phase” means that phase of the Project
that follows the Schematic
Design Phase, which generally precedes the preparation of
Construction Documents, and during which the systems of the Project
are coordinated and the Owner’s consultants have determined that
end-users are satisfied with the design.
(31) “Design Package” means, whether one or more, a part of the
Construction Documents,
including all Drawings, Specifications and other Construction
Documents issued by the Architect/Engineer at a designated point in
time as required for bidding, procurement and construction for a
specific portion of the Work for one or more Projects.
(32) “Drawings” means the graphic and pictorial portions of the
Construction Documents showing the
design, location and dimensions of the Work, and generally
including plans, elevations, sections, axonometrics, isometrics,
details, schedules and diagrams.
(33) “E-Builder” means the web-based project control system used by
the Owner which shall be
utilized by the Project Team for document control, approval
processing and distribution/ processing of all project-related
documentation and correspondence.
(34) “Effective Date” means the effective date of this Agreement as
stated on the first line of this
Agreement, which is the day after the Owner’s Board of Governors
approved the award of this Agreement to Construction Manager, and,
with respect to any Contract Amendment or Change Order, the
effective date described therein, or, in the absence thereof, the
date as of which both parties have signed the Change Order.
(35) “Final Completion” shall mean the completion of all Punch List
Work, issuance of final
Certificates of Occupancy from all applicable governmental
authorities, and the issuance of Owner’s Certificate of Final
Completion after fulfillment of all other conditions precedent to
Final Completion as set forth in Section XVIII.3.
(36) “Final Completion, Certificate of” shall mean the certificate
prepared by the Construction
Manager, in the form approved by Owner, stating the actual date of
Final Completion of the Work or a portion thereof, as shown
thereon, and signed by the Owner, and Architect/Engineer, and
Construction Manager, confirming that Construction Manager has
achieved Final Completion of such Work as of such date.
(37) “Final Completion, Scheduled Date of” shall mean
_______________________by which date all
Services and Work of Construction Manager shall have been completed
and accepted by the Owner, and the date by which the Construction
Manager is required to have achieved Final Completion of the
Work.
(38) “Functional and Space Program” or “F&SP” means the
documents comprising the Functional
and Space Program, and any modifications thereto, describing the
functional and space requirements for the Project, as approved by
Owner from time to time during the Project.
(39) “Guaranteed Maximum Price” or “GMP” shall mean the sum
established by Contract
Amendment or as modified in accordance with Article XVI, Changes in
the Work, as the maximum amount Owner will pay for the Cost of the
Work included in a Design Package and the
Construction Manager-at-Risk Agreement (Contract No.
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portion of Construction Management Fee allocable to such Design
Package in accordance with Section XIV for all Work to described
therein, and as approved by Owner in writing prior to commencement
of construction of such Work. A Guaranteed Maximum Price may be
established for multiple Design Packages.
(40) “Guaranteed Maximum Price Proposal” means the Construction
Manager’s written proposal of
a Guaranteed Maximum Price, to be submitted by Construction Manager
for all Work associated with one or more Design Packages, in the
form of Exhibit 18 to this Agreement.
(41) NOT USED.
(42) “General Requirements” means all of the general requirements
for the Work under Division 1 of
the Specifications, and the Work, including any equipment and
materials to be installed, as described therein.
(43) “Hazardous Substance(s)” shall mean and include any element,
constituent, chemical,
substance, compound, or mixture, which are defined as a hazardous
substance by any local, state or federal law, rule, ordinance,
by-law, or regulation pertaining to environmental regulation,
contamination, clean-up or disclosure, including, without
limitation, The Comprehensive Environmental Response, Compensation
and Liability Act of 1980 (“CERCLA”), The Resource Conservation and
Recovery Act (“RCRA”), The Toxic Substances Control Act (“TSCA”),
The Clean Water Act (“CWA”), The Clean Air Act (“CAA”), and the
Marine Protection Research and Sanctuaries Act (“MPRSA”), The
Occupational Safety and Health Act (“OSHA”), The Superfund
Amendments and Reauthorization Act of 1986 (“SARA”), or other state
superlien or environmental clean-up or disclosure statutes
including all state and local counterparts of such laws (all such
laws, rules and regulations being referred to collectively as
“environmental laws”).
(44) “Mockup(s)” means Contractor’s construction of a portion of
the Work, or an example of the
construction thereof, for purposes of confirming and/or testing the
appropriateness and performance of the design, materials and/or
construction thereof, before continuing with the actual physical
construction thereof.
(45) “Notice to Proceed” means a written notice issued by or on
behalf of Owner to Construction
Manager to proceed hereunder with the performance of all or any
portion of the Services or the Work with respect to any or all of
the Design Packages and the balance of the Work.
(46) “Owner” means the Bexar County Hospital District d/b/a
University Health System, a political
subdivision of the State of Texas, its successors in interest, and
its authorized representatives.
(47) “Owner Indemnitees” means Owner, and its respective
affiliates, directors, officers, employees and
any other persons or entities expressly identified as Owner
Indemnitees identified in Section XXIV.
(48) “Owner’s Contingency” means a portion of Owner’s authorized
funding reserved by Owner, which
is exclusively available to Owner.
(49) “Payment Bond” means the bond provided by the Construction
Manager that guarantees the
payment of labor, materials, equipment and supplies used in the
performance of the Work, in the form required in Exhibit 5.
(50) “Pending Third Party Claims” means any Claim made or
threatened by a third party against the
Owner that (i) has been identified in writing to Owner prior to
Construction Manager’s submission of its Application for Final
Payment, and (ii) the parties have agreed in writing to leave
pending after issuance of Final Payment, in accordance with Section
XVIII.4, below.
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(51) “Performance Bond” means the bond provided by the Construction
Manager that guarantees the
performance of all covenants and stipulations of this Agreement, in
the form required in Exhibit 5.
(52) “Pre-Construction Fee Payment Schedule” means a schedule
showing assigned values
allocating the entire amount of the Pre-Construction Services Fee,
according to percentages of completion to be attained for the
various portions of such Pre-Construction Services, prepared in the
form of the Pre-Construction Fee Payment Schedule (Exhibit 20), and
supported by such data as Owner may require to substantiate its
accuracy, for purposes of administration of Owner’s payments of the
Pre-Construction Services Fee.
(53) “Pre-Construction Services” means those Services, as set forth
in Section IX of this
Agreement, and identified on the Elements of Construction Manager’s
Fees (Exhibit 13), which are to be performed in advance of the
performance of the Construction Services throughout the various
phases of the Project, including the Project Definition, Schematic
Design, Design Development, Construction Documents and bidding, for
the Work. Pre-Construction Services may overlap Construction Phase
Services for certain Design Packages.
(54) “Pre-Construction Services Fee” means the Construction
Manager’s fixed fee for all
administrative, supervisory, and management personnel costs, and
all direct overhead, and other on-site costs and expenses for any
items of equipment, consumables or supplies, to be incurred by the
Construction Manager in the performance of Pre-Construction
Services, which shall be categorically identified on the Elements
of Construction Manager’s Fees (Exhibit 13).
(55) “Product Data” means all illustrations, standard schedules,
performance charts, instructions,
brochures, diagrams and other information furnished by the
Construction Manager to describe materials or equipment for some
portion of the Work.
(56) “Program Implementation Plan” or “PIP” shall mean the
implementation plan for the Work
dated February 16, 2015 available through Owner’s website at
www.e-builder.net, which PIP is attached hereto as Exhibit
11.
(57) “Master Schedule” means the composite schedule for the
Projects contemplated under this
Agreement.
(58) “Project(s)” means all aspects of all renovation and build-out
projects identified by Owner in its
Solicitation designated as RFCSP-215-12-046-CNST, dated December
29, 2015, as revised by Addendums __________________, which term
includes all base projects and all other potential Work or
projects, as further detailed in Exhibit 8 (Detailed Description of
Projects). The term “Project(s)” may refer to an individual
renovation project or all renovation projects identified in such
Request for Proposals. The Owner in its sole discretion and without
any liability to Construction Manager may, after giving written
notice to Construction Manager: (i) remove any individual
renovation project from the scope of this Agreement at any time
prior to Construction Manager’s commencement of the Construction
Phase for any such Project; and (ii) request qualifications and
proposals from others for the performance of construction services
and work in connection with any such removed Project.
(59) “Project Budget” shall mean the budget for the Project(s) and
includes both the current
Construction Cost Limitation and the Owner’s Contingency for any
such Project(s).
(60) “Project Definition Phase” means that phase during which (i)
the Owner and Architect/Engineer will illustrate the scale and
relationship of the Project components in electronic form; and (ii)
based thereon, the Owner, will approve the Architect/Engineer’s
definition of the Project by means of a Conceptual Design, based on
documents previously approved by the Owner, and ; (iii) the Owner,
Construction Manager and Architect/Engineer will update the Project
Schedule; and (iv) the Owner
Construction Manager-at-Risk Agreement (Contract No.
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will issue a revised Project Schedule that establishes the Dates of
Substantial Completion and the Dates of Final Completion for the
Design Packages comprising the Project.
(61) “Project Executive” shall mean the individual that
Construction Manager has designated as such in
the List of Construction Manager’s Key Personnel (Exhibit 9) as the
individual having direct responsibility at the Worksite for the
performance and execution of the Work at the Worksite.
(62) “Project Manual” means the compilation of all of the
Specifications for the Work, including all General Requirements,
and any other information provided to the Construction Manager in
writing to further define, describe or explain the requirements for
the Work required by this Agreement, which Project Manual the
Construction Manager shall maintain and keep current.
(63) “Project Schedule” shall mean the schedule approved by Owner
for execution of the Project,
including all planning, design, management and construction
activities as incorporated into Exhibit 10. The Construction
Schedule and all other schedules for the Project are integrated
into the Project Schedule. The Project Schedule is consistent with
and related to the Master Schedule.
(64) “Project Team” means the Owner, Architect/Engineer,
Construction Manager, Construction
Manager’s Subcontractors and Suppliers, and any Separate
Contractors or other consultants employed by Owner for the purpose
of programming, designing, and constructing the Project. The
constitution of the Project Team may vary at different phases of
the Project. The Project Team will be designated by Owner and may
be modified from time to time by Owner, in its sole
discretion.
(65) “Punch List Work” means minor incomplete items and/or repairs
that must be completed to
achieve Final Completion, but which do not impair the Owner’s
beneficial use and occupancy of a facility, or the safety of
individuals, and which are identified during inspections of the
Work or any portion thereof, whether at or before Substantial
Completion thereof, and which must be completed as a condition
precedent to Final Completion.
(66) “Record Documents” means the comprehensive set of all Drawings
and Specifications that
include any modifications to the Contract Documents effected by
such instruments as: Contract Amendments, Change Orders, Field
Orders, responses to requests for information, supplemental
instructions, approvals of substitutions, and any other items that
result in a change to the Contract Documents. Record Documents
shall be maintained and generated using E-Builder Enterprise 7
software.
(67) “Samples” means all physical examples which illustrate
materials, equipment or workmanship
and establish standards by which the Work will be considered for
approval.
(68) “Schedule of Values, Construction” means a schedule showing
assigned values allocating the
entire amount of the Cost of the Work and the applicable portion of
the Construction Management Fee that Owner is expected to pay for
the Services and the Work, according to percentages of completion
attained to the various portions of the Services and Work, prepared
in such form and supported by such data to substantiate its
accuracy as Owner may require, for purposes of administration of
Owner’s payments of the applicable Cost of the Work and
Construction Management Fee.
(69) “Schematic Design Phase” means that phase of the Project that
follows the Project Definition Phase, generally precedes the
preparation of Design Development Documents, and during which the
basic floor plans showing all room locations, building elevations,
and sections, are developed and systems and materials are
selected.
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(70) “Separate Contractor(s)” means any contractor(s) engaged
directly by the Owner (other than
Construction Manager) to perform construction or other services on
the Worksite relating to the Project or the operation or
maintenance of Owner’s property.
(71) “Services” means all management services required to be
performed by or on behalf of the
Construction Manager hereunder, including all Pre-Construction
Services and Construction Phase Services. The Construction
Manager’s Services are separate from, and in addition to, the
Work.
(72) “Shop Drawings” means all drawings, diagrams, schedules and
other data specially prepared
for the Work by the Construction Manager, a Subcontractor,
Sub-subcontractor, or Supplier to illustrate some portion of the
Work for review, processing and approval by the Construction
Manager and the Architect/Engineer.
(73) “Specifications” means that portion of the Construction
Documents consisting of the written
General Requirements and technical requirements for materials,
equipment, systems, standards and workmanship for the Work, and
performance of related Services, including all requirements of
applicable building and life safety codes. The Specifications
generally describe Work not readily indicated on the
Drawings.
(74) “Construction Manager’s Community Outreach Plan” means the
plan (Exhibit 22) required by
Owner’s policy on utilization of Small, Minority, Women, and
Veteran-Owned Business Enterprises (SMWVBE).
(75) “Subcontractor(s)” means all entities or persons entering into
any Subcontract with the
Construction Manager for the construction of the Work, and
including any Supplier who provides, at the Worksite, technical
assistance or other Services.
(76) “Sub-subcontractor” is a person or entity (including its
authorized representative) who contracts
with a Subcontractor or Supplier to perform a portion of the Work.
An entity or person who contracts with a Sub-subcontractor to
perform a portion of the Work is also considered a Sub-
subcontractor.
(77) “Subcontract(s)” means any contract between Construction
Manager and one of its
Subcontractors that is approved by Owner.
(78) “Submittal(s)” means Shop Drawings, Product Data, Samples,
Mockups and similar items required by the Construction Documents
for the purpose of demonstrating how the Construction Manager
proposes to conform certain portions of the Work to the
requirements of, and the design concepts expressed in, the Contract
Documents.
(79) “Substantial Completion” means that stage of completion by
which the Work or a portion thereof is
accepted by execution of a Certificate of Substantial Completion by
Owner and Architect/Engineer as sufficiently completed, inspected,
and approved by the appropriate regulatory authority or
authorities, for Owner’s occupancy or partial occupancy for its
intended purposes pending Final Completion, excluding only Punch
List Work.
(80) “Substantial Completion, Certificate of” shall mean a
certificate prepared by the Construction
Manager, in the form approved by Owner, stating the actual date of
Substantial Completion of the Work or a portion thereof, as shown
thereon, and signed by the Owner Architect/Engineer, and
Construction Manager, confirming that Construction Manager has
achieved Substantial Completion of such Work as of such date.
(81) “Substantial Completion, Scheduled Date of” shall mean the
date by which the Construction
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Manager is required to have achieved Substantial Completion of the
Work or a portion thereof according to the Construction Schedule,
or any updates thereto as approved by Owner in writing.
(82) “Supplier(s)” shall mean any person or entity approved to
provide under contract to Construction
Manager or any Subcontractor any materials or supplies and/or
equipment or other components of the Work to be used or installed
therein, whether incorporated into the Work or consumed in whole or
in part during the prosecution of the Work.
(83) “The Joint Commission” means a national independent,
not-for-profit organization by such name
that sets standards and acts as an accrediting body that provides
accreditation and certification for health care organizations and
disease-specific care programs, primary stroke centers, and health
care staffing services, often referred to by its former name, the
Joint Commission on the Accreditation of Healthcare Organizations
(JACHO).
(84) “Value Analysis” means the continuing evaluation by the
Construction Manager of the
Drawings, Specifications, related design concepts, and design
documents, throughout the design and construction phases of the
Project, whereby the Construction Manager proposes and the Project
Team determines the most advantageous value added design
substitutions or solutions, as approved by Owner, with the goal of
an integrated design that encompasses life cycle cost analysis and
functional analysis according to evaluation criteria established by
the guidelines of the Society of American Value Engineers
(SAVE).
(85) “Work” means all labor, parts, supplies, skill, supervision,
transportation, construction related
activities, and all other items of cost or value, and other
facilities and things necessary, proper or incidental and required
or reasonably inferable to produce, construct and fully complete
the construction of the Project(s) in strict accordance with the
requirements of the Contract Documents (as they may be modified or
amended). The Work also refers to the performance of the physical
construction thereof, as well as the incorporation of all material
and equipment therein. The Work itself is distinguished from the
Services required to manage the construction of the Work.
(86) “Work Product” means all Construction Documents, designs,
Drawings, Specifications,
Submittals, contracts, instruments of service, estimates, software
created for this Project, and all plans, data compilations or
calculations, the Building Information Model (where applicable to a
particular Project, in which case the Parties shall agree upon a
mutually acceptable BIM execution plan), studies, reports, or other
documents which are prepared by or on behalf of the Owner
Construction Manager, Architect/Engineer, or any other service
provider, in connection with the PIP and/or the Project or in
connection with the performance of the Services or Additional
Services hereunder, which Work Product shall, except as otherwise
set forth in this Agreement, be and remain the exclusive property
of Owner, the use of which shall not be made or permitted by
Construction Manager except in connection with the Project without
Owner’s prior written consent.
(87) “Worksite” means the location of the Project and any offsite
location owned or leased by Owner as
a location where Work has been approved in writing by Notice to
Proceed to be performed hereunder. The use of the word “site” to
modify the terms “Work” or “Project” in phrases such as “the site
of the Work” or “at the Project site” shall also be deemed to refer
to the Worksite.
(88) “Worksite Finds” shall mean the unexpected discovery at, on or
near the Worksite of any
archeological, paleontological, or cultural resources or any
threatened or endangered biological species listed as such at the
time of discovery by Applicable Law.
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II. The Project
1. Project Description. [NOTE TO RESPONDENTS – REFER TO OWNER’S
SOLICITATION FOR
DESCRIPTION OF PROJECTS.]
2. Schedule Limitation. Construction Manager acknowledges and
accepts that it will be obligated
to provide and timely complete all Pre-Construction Services, and
Construction Phase Services, and achieve the applicable Date(s) of
Substantial Completion and Date(s) of Final Completion for the
various Design Packages comprising the Project, as established by
Contract Amendment. Construction Manager shall use its best efforts
to re-sequence the Work when necessary or appropriate to overcome
and/or mitigate, to the greatest practicable extent, the effect of
any delays. Any additional costs due to resequencing, or mitigation
in addition to acceleration of the Work to overcome delays may be
included in the Cost of the Work, but only to the extent allowed
under Section XV.3. Construction Manager shall diligently prosecute
the Work in accordance with the Construction Schedule and the
Project Schedule. Time is of the essence with respect to the
intermediate milestone dates designated as major or key milestones
in the Construction Schedule and the Project Schedule, as well as
the Substantial Completion Dates and Final Completion Dates to be
established in the Construction Schedule for the Work and any
portions thereof as such dates are modified from time to time in
accordance with the Contract Documents. In the performance of all
of its duties hereunder, Construction Manager shall endeavor to
perform its Services in a manner consistent with such time
limitations.
3. Cost Limitation. Owner is precluded by law from obligating funds
beyond those which have been
specifically secured and authorized for the Project. Construction
Manager acknowledges and accepts that the total of all amounts
Owner shall pay for the Construction Manager’s Services and Work to
complete the Project, including all of Construction Management
Fees, shall not exceed the Construction Cost Limitation authorized
for the Project, which includes an Owner’s Contingency in the
amount of $__________________, expected to be available for the
Construction Phase, and which is to be reserved exclusively for
Owner’s Change Orders. As of the Effective Date, the Construction
Cost Limitation is $__________________. The Construction Cost
Limitation can only be adjusted by Owner, in writing, in its sole
discretion, with approval of Owner’s Board as required by Owner’s
policies of governance. In the performance of all of its duties
hereunder, Construction Manager shall perform the Services and all
Work so as not to exceed the Construction Cost Limitation, as may
be amended by Owner hereunder. Provided, however, that nothing in
this Agreement obligates Construction Manager to perform Work or
Services for which it is entitled to a Change Order or is required
to perform pursuant to a Construction Change Directive unless funds
are available under the Construction Cost Limitation, as may be
amended by Owner hereunder.
Prior to letting or permitting the letting of any Subcontract,
Sub-subcontract or other contract or purchase orders containing a
contingent payment clause, Construction Manager shall have
submitted to Owner a completed form of the Owner’s Confirmation of
Funding (Exhibit 12) for execution by Owner’s Executive Vice
President, and informed, and required its Subcontractors and
Suppliers to have informed, all Subcontractors, Sub-Subcontractors
and Suppliers of every tier of the Construction Cost Limitation (as
may be amended by Owner hereunder) for the Project.
4. Term of Agreement. This Agreement shall remain in effect until
the Scheduled Date of Final Completion, by which date all Services
and Work of Construction Manager shall have been completed and
accepted by the Owner, subject to the continuing obligations of the
Construction Manager with respect to those provisions which, by
their nature or terms survive the termination of this
Agreement.
III. Agreement Documents
1. Correlation and Intent of Agreement Documents. The Contract
Documents form the entire
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Agreement, and all are as fully a part of this Agreement as if
attached hereto or repeated herein.
A. 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.
B. If a conflict, ambiguity or inconsistency among the Contract
Documents arises, the following order of precedence shall
apply:
(1) Contract Amendments to this Agreement; (2) This Agreement; (3)
Change Orders to the Work; (4) Exhibits to this Agreement; (5)
Construction Documents.
C. The foregoing notwithstanding, the Contract Documents are
complementary and are intended to include all items required for
the proper execution and completion of the Work. The enumeration of
any portion of the Work shall not be construed to exclude other
items contemplated by or reasonably inferable from the Contract
Documents. If the Contract Documents contain differing provisions
on the same subject matter, then, notwithstanding Section III.1.B,
and unless expressly excused by Owner in writing, the provision
that establishes the higher quality, manner or method of performing
the Work, or uses the more stringent standard, will prevail.
D. Specifications may indicate types, qualities, and locations of
installation of the various materials and equipment required for
the Work. Specifications will not mention every item of Work that
can be adequately shown on the Drawings, and Drawings will not show
all items of Work described or required by the Specifications. All
materials or labor for Work which is shown on the Drawings or
described in the Specifications or is reasonably inferable
therefrom as being necessary to produce a finished and functional
Project shall be provided by Construction Manager. Organization of
the Specifications into divisions, sections and articles, and
arrangement of Drawings, shall not control the Construction Manager
in dividing the Work among Subcontractors or in establishing the
extent of Work to be performed by any trade. Where provisions in
two or more of the Contract Documents are complementary, the more
detailed provision shall control over the more general provision.
When specific products, systems or items of equipment are referred
to
in the Contract Documents, any ancillary devices necessary for
proper functioning shall also be provided.
E. If the Construction Manager’s proposal in response to the
Owner’s request for proposals for the Services and Work, and any
Guaranteed Maximum Price Proposal submitted to and accepted by
Owner, includes statements, terms, services or work that can
reasonably be interpreted as offers at no additional cost to Owner
to provide higher quality items than otherwise required by the
Contract Documents, or to perform services or work meeting
standards better than those otherwise required herein, or otherwise
contain terms that are more advantageous or provide greater value
to Owner than the requirements of the Contract Documents, then
Construction Manager’s obligations hereunder shall, unless
expressly excluded by the Contract Documents, include compliance
with all such statements, terms, services or Work, which shall take
priority.
F. The most recently issued document takes precedence over
previously issued forms of the same document. Dimensions on
Drawings shall govern scale measurements. Items shown one place in
the Drawings, but not another, or called for in the Construction
Documents or the Specifications but not shown in the Drawings, or
shown in the
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Drawings but not in another of the Construction Documents, are to
be included. If existing conditions are inconsistent with
dimensions shown on Drawings and Specifications, the Construction
Manager shall request information in writing from the
Architect/Engineer to resolve the same prior to the time when the
Work affected by such inconsistency must be commenced.
G. The edition of any standard, code or ordinance applicable to the
Work shall be that which is the governing code(s) at the time the
Guaranteed Maximum Price Proposal is accepted by Owner, even though
a different edition or no edition is specified. In the event of
inconsistencies between the Contract Documents and standards,
codes, and ordinances applicable to the trade Work performed by or
through the Construction Manager, the Construction Manager shall
comply with the applicable standard, code, and/or ordinance, unless
a more stringent standard is set out in the Contract Documents. The
current edition of manufacturer’s instructions and guarantees
referenced in the Contract Documents shall be applicable.
References to standards, codes, ordinances, manufacturer’s
instructions and guarantees shall apply in full, except they shall
not supersede more stringent standards set out in the Contract
Documents. If the Construction Manager becomes aware that any
requirements set out in the Contract Documents are inconsistent
with applicable standards, codes, ordinances or manufacturer
instructions and guarantees, the Construction Manager shall
promptly bring such inconsistency to the attention of
Architect/Engineer for resolution.
2. Exhibits to Agreement. This Agreement includes the following
Exhibits, each of which are
incorporated by reference as if fully stated herein:
Exhibit 1 - Acknowledgement of Data Use Protocols;
Exhibit 2 - Health Insurance Portability and Accountability Act
(HIPAA) Requirements;
Exhibit 3 - Construction Manager’s completed Workforce/Employee
Composition Questionnaire;
Exhibit 4 - Owner’s Requirements of Insurance;
Exhibit 5 - Bond Forms;
Exhibit 5.1 – Payment Bond Form Exhibit 5.2 – Performance Bond Form
Exhibit 5.3 – Security Bond Form Exhibit 6 - Construction Manager’s
Confidentiality Agreement;
Exhibit 7 - Prevailing Wage Rate Schedule;
Exhibit 8 - Detailed Description of Project(s);
Exhibit 9 - List of Construction Manager’s Key Personnel who
Construction Manager will assign to key positions for purposes of
performing the Services hereunder, including an organizational
chart of the personnel, including their names, job titles, contact
information, and hourly rates for Additional Services;
Exhibit 10 - The Project Schedule;
Exhibit 11 - Program Implementation Plan;
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Exhibit 12 - Owner’s Confirmation of Funding;
Exhibit 13 - Elements of Construction Manager’s Fees;
Exhibit 14 - Travel Reimbursement Policy, revised 06/26/2013;
Exhibit 15 - Form of Additional Services Proposal;
Exhibit 16 - Table of Hourly Labor Rates for Construction Manager’s
Staff Personnel;
Exhibit 17 - Table of Construction Manager’s Field Labor Rates
(General Requirements);
Exhibit 18 - Form of Guaranteed Maximum Price Proposal;
Exhibit 19 - Dispute Resolution Procedures;
Exhibit 20 - Pre-Construction Fee Payment Schedule;
Exhibit 21 - Partial and Final Release of Claims;
Exhibit 21.1 – Partial Claim Release Exhibit 21.2 – Final Claim
Release Exhibit 22 - Construction Manager’s Community Outreach
Plan;
Exhibit 23 - Form of Contract Amendment; and
Exhibit 24 - Construction Manager’s Certification of Criminal
History Background Checks
IV. Owner’s Duties
The Owner shall have and fulfill the following duties:
1. Coordination. The Owner, acting through its consultants, shall
enable and cause the Project
Team to coordinate with the Construction Manager in the
implementation of the Project.
2. Cooperation of Project Team. The Owner shall cooperate in
providing information to all
members of the Project Team regarding its requirements for the
Project. Information or services reasonably necessary for Owner to
provide for the Work and under the Owner’s control shall be
furnished by the Owner with reasonable promptness where requested
in writing by the Construction Manager. Under normal circumstances,
fourteen (14) days will be considered a reasonable time for Owner’s
response unless there is a critical need for an earlier response
and that need is addressed by the Construction Manager in its
request. In any instance where information or services from the
Owner are reasonably required, Construction Manager shall promptly
notify in writing the Owner and Architect/Engineer of the
particular need. Absent such notification, any claim based upon
lack of such information or services shall be waived.
Notwithstanding anything to the contrary contained in this
Agreement, Owner shall only furnish information or services
described in this Section IV to the extent that any such
information or services are reasonably required by Construction
Manager to perform the Services and Work required under this
Agreement or as required under Applicable Laws.
3. Site Reports. Owner shall furnish site reports describing known
or expected physical
characteristics, soils reports and subsurface investigations for
the Worksite.
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4. Tests and Inspections. Except as provided otherwise below, Owner
shall provide special
testing and inspection services to the extent specified by Owner
and/or Architect/Engineer in the Contract Documents and as required
by Texas Government Code §2269.058, which provides as follows: “(a)
Independently of the contractor, construction manager-at-risk, or
design-build firm, the governmental entity shall provide or
contract for the construction materials engineering, testing, and
inspection services and the verification testing services necessary
for acceptance of the facility by the governmental entity. (b) The
governmental entity shall select the services for which it
contracts under this section in accordance with Section
2254.004.”
A. Tests, inspections and approvals of portions of the Work
required of Construction
Manager by the Contract Documents or required by law, ordinances,
rules, regulations or orders of public authorities having
jurisdiction shall be made at appropriate times. Unless otherwise
provided, the Construction Manager shall make arrangement for such
tests, inspections and approvals with an independent testing
laboratory employed by the Owner for this purpose, or with the
appropriate public authority. Owner shall bear the normal costs of
these services, but not any excess costs attributable to
Construction Manager caused scheduling problems, or other
Construction Manager error. The Construction Manager shall give
the, Architect/Engineer timely notice of when and where tests and
inspections are to be made so they may observe such
procedures.
B. If the Owner, Architect/Engineer or public authorities having
jurisdiction determine that portions of the Work require additional
testing, inspection or approval not included under Section IV.4.A,
the Construction Manager shall make arrangements for such
additional testing, inspection or approval by an entity acceptable
to them, and the Construction Manager shall give timely notice to
them of when and where tests and inspections are to be made so that
the they may be present for such procedures. Such costs, except as
otherwise expressly provided in this Agreement, shall be at the
Owner’s expense.
C. If such procedures for testing, inspection or approval 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/Engineer’s services and expenses
shall be at the Construction Manager’s expense.
D. Required certificates of testing, inspection or approval shall,
unless otherwise required by the Contract Documents, be secured by
the Construction Manager and promptly delivered to the Owner.
E. If the Architect/Engineer is to observe tests, inspections or
approvals required by the Contract Documents, they will do so
promptly and, where practicable, at the normal place of
testing.
F. Tests or inspections conducted pursuant to the Contract
Documents shall be made promptly to avoid unreasonable delay in the
Work.
5. Disclosure of Known Faults or Defects. If the Owner has actual
knowledge of any material
fault or defect in the Project or non-conformance with the Drawings
and Project Manual, Owner shall give prompt written notice thereof
to the Construction Manager. However, Owner’s failure to notify
Construction Manager of such fault or defect shall not relieve
Construction Manager from any of its liability related to such
fault or defect if such fault or defect should, in the exercise of
the standard of care, have been observed by Construction
Manager.
6. Access to Electronic Files. The Owner will cause the
Architect/Engineer to provide to
Construction Manager and its Subcontractors and Suppliers, free of
charge, limited electronic
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access to use and make copies of data and electronic files of
Construction Documents, subject to their prior execution and
compliance with the Acknowledgement of Data Use Protocols (Exhibit
1), with respect to such data and electronic files, in accordance
with Section VII.4, below.
V. Construction Manager’s Standard of Care
The Construction Manager shall, in the performance of the Services
and Work, comply with the standard of care described herein.
Notwithstanding anything to the contrary contained in this
Agreement, Owner and Construction Manager agree and acknowledge
that Owner has entered into this Agreement in reliance on
Construction Manager’s special and unique construction management
abilities to perform its obligations hereunder. The Construction
Manager accepts that, by this Agreement, a relationship of trust
and confidence is hereby established between it and the Owner.
Construction Manager understands the complexity involved in this
type of construction and the necessity of coordination of the
performance of its Work with the Project Team. In addition to the
foregoing, and in addition to the rights and remedies otherwise
existing under this Agreement, at law or in equity, the
Construction Manager will perform, or cause to be performed, all
Services and the Work expeditiously, and in no event later than is
required to conform to the Construction Schedule and the Project
Schedule, and shall do so with that degree of professional skill
and care practiced by similar firms, using similar collaborative
project planning methods, and having industry leading knowledge and
skill engaged in providing similar services for major construction
projects of comparable value in the United States under the same or
similar circumstances. The Construction Manager will furnish
efficient business administration and superintendence and perform
the Services and the Work in such manner as to provide Owner the
best value. Construction Manager shall employ and exercise the
professional judgment of its experienced and qualified construction
professionals to provide Owner confidence that the Project will be
completed in conformity with the design concepts and construction
requirements established by Owner, and it is the intention of the
parties that the Construction Manager shall, at all times, act in
the Owner’s and Project’s best interests with respect to the
performance of the Services and the management of all aspects of
the Work. Construction Manager shall, at all times, exercise
exclusive direction and control, and shall be responsible for
proper supervision, of all its personnel, Subcontractors and
Suppliers while present on the Worksite and otherwise. The standard
of care required hereunder shall not, however, be deemed to alter
or expand the Construction Manager’s common law duty to Owner with
respect to liability for, or the duty to indemnify, defend or hold
Owner harmless under Article XXIV, Indemnity and Liability, with
respect to claims or liability for bodily injury or property
damage, for which the standard of care hereunder shall be deemed
and construed to be no greater than that imposed upon the
Construction Manager by common law.
VI. Construction Manager’s Representations and Warranties
The Construction Manager hereby expressly represents and warrants
to Owner each of the following:
1. Cooperation and Collaboration. Construction Manager will, and
will require its personnel,
Subcontractors and Suppliers, to provide a high degree of cohesion,
cooperation, collaboration, coordination and teamwork on the
Project to exercise sound resource stewardship and deliver to Owner
cost-effective and innovative capital solutions while completing
the Work under this Agreement. To this end, Construction Manager
shall deliver the Work on time and within the Guaranteed Maximum
Price(s) to be established for the Work by Contract Amendments. The
Construction Manager and Owner agree that the sum of all such
Guaranteed Maximum Price(s), including all charges for the
Construction Management Fees, and the Pre-Construction Services
Fee, shall in no event exceed the Construction Cost Limitation, as
may be amended by the Owner in accordance with Section II.3.
2. Familiarity with Project. With respect to the Services (as
distinguished from the physical Work to
be performed), Construction Manager has thoroughly reviewed all
information provided by the Owner, including the Program
Implementation Plan in Exhibit 11, visited the Worksite for the
Project, and, thoroughly familiarized itself with the local
conditions and constraints under which the Services
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will be performed. Owner has furnished to Construction Manager, and
Construction Manager has reviewed all floor plans showing the
locations of the various individual renovation projects included in
the Project. Construction Manager warrants, represents, covenants,
and agrees that there are no obligations, commitments, or
impediments of any kind that will limit or prevent performance of
the Services required hereunder, which are known to any of the
Construction Manager’s employees and agents. With respect to the
physical Work to be performed, Construction Manager’s warranty and
representation of familiarity with and assumption of risks of
conditions and constraints shall apply as of the time Construction
Manager submits its Proposed Guaranteed Maximum Price for such
Work, as provided in Section XIV.1.B.
3. Compliance and Familiarity with Applicable Laws, Rules,
Regulations, Codes and Standards. Construction Manager is
knowledgeable of Applicable Laws, rules, regulations, codes and
standards, and will diligently use all reasonable care to ensure
that it, and all Construction Manager’s personnel and
Subcontractors perform all Services and undertakings hereunder in
compliance with Applicable Laws, rules, regulations, codes and
standards, including those dealing with employer- employee
relations, including, as amended, the “Fair Labor Standards Act” of
1938, the “Walsh- Healy Act,” and “Nondiscrimination in
Employment,” Executive Order No. 11246 of September 24,1964, and
Chapter 2258 of the Texas Government Code, and the requirements for
filing of all reports as required thereby. Construction Manager
shall execute and deliver to Owner such documents as may be
required to effect or evidence compliance. Construction Manager
acknowledges that the Project must fully comply with all applicable
Centers for Medicare and Medicaid Services (CMMS) standards, as
promulgated by the U.S. Department of Health and Human Services.
Details for compliance with these requirements will be provided by
the Architect/Engineer in the Construction Documents, for which
Construction Manager acknowledges a duty to identify and report
errors and omissions in such specified compliance details in
accordance with the provisions of Section VII.5.A. Construction
Manager agrees that it shall provide all required Work and
documentation of its Services for the Project to fulfill such
compliance requirements for the Project. The Construction Manager
will comply with and give notices required by laws, ordinances,
rules, regulations and lawful orders of public authorities
applicable to performance of the Work. Construction Manager shall
comply with the most restrictive requirements of the laws, rules,
regulations, codes and standards applicable to the Work, and shall
take and observe all necessary measures and precautions for the
safety and protection of all property and persons in connection
with performance of the Work, including, without limitation,
providing and installing barricades, guardrails, fences, warning
signs, lighting, etc. for the protection of workers and the public.
If the Construction Manager performs Work knowing it to be contrary
to laws, statutes, ordinances, building codes, and rules and
regulations without such notice to the Architect/Engineer and
Owner, the Construction Manager shall assume appropriate
responsibility for such Work and shall bear the costs attributable
to correction. Construction Manager shall advise Owner as to
changes in any Applicable Laws, rules, regulations, codes and
standards, during the term of this Agreement of which Construction
Manager becomes aware.
4. Compliance with Health Insurance Portability and Accountability
Act (HIPAA) Requirements. Construction Manager has reviewed, is
familiar with and shall perform the Services in accordance with the
terms and conditions set forth in the HIPAA Requirements (Exhibit
2) pertaining to compliance with Federal HIPAA regulations relating
to the requirement that Business Associates, as defined therein,
protect certain confidential health or medical information of
individuals.
5. Workforce/Employee Composition. It is the policy of Owner to
encourage, promote, increase, and
improve procurement opportunities to assure that qualified small,
minority or women-owned business enterprises that provide
high-quality, cost competitive products and services are provided
the maximum practicable opportunity to actively participate in
Owner’s supplier and contractor procurement opportunities.
Construction Manager has completed and furnished to Owner prior to
execution of this Agreement true and complete answers to the
Workforce/Employee Composition Questionnaire (Exhibit 3). Owner
shall have the right at any time to require Construction Manager
to
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complete and furnish to Owner a current Workforce/Employee
Composition Questionnaire form, which shall be completed and
furnished to Owner promptly upon Owner’s written request, failing
in which Owner may terminate this Agreement, pursuant to Section
XXV.2.A, below.
6. UHS’ Accreditation by the Joint Commission. Construction Manager
has reviewed and shall
review all information available to it concerning The Joint
Commission’s accreditation of the University Health System, for
which Construction Manager acknowledges a duty to identify and
report errors and omissions in the Construction Documents related
to such accreditation information in accordance with the provisions
of Section VII.5.A. Construction Manager and its personnel shall
perform the Services and the Work in strict compliance with The
Joint Commission Accreditation Standards, and any other standards
of The Joint Commission that are or become applicable to the
Project. If the Construction Manager determines that the
Architect/Engineer any other service provider is unaware of
information concerning the Joint Commission accreditation
information provided to the Construction Manager or that any of
them is acting in violation of Joint Commission standards, then
Construction Manager shall notify or otherwise report such
violation to Owner. Under no circumstances shall Construction
Manager actively or passively cause, or knowingly permit others to
cause UHS to be in violation of The Joint Commission
standards.
7. No Material Change in Construction Manager’s Qualifications or
Responses to Request for Proposal. All information contained in
Construction Manager’s responses to Owner in its Solicitation
designated as RFCSP-215-12-046-CNST, dated December 29, 2015, as
revised by Addendums __________________, including but not limited
to Construction Manager’s statements and representations as to its
history, experience, capabilities, litigation disclosure, financial
information, and other qualifications are accurate and complete,
and no material change in circumstances has occurred as of the
Effective Date that would cause Construction Manager’s responses to
be untrue or materially different than what was originally stated.
Construction Manager shall have a continuing duty to disclose any
material change in circumstances that could adversely affect
Construction Manager’s ability to continue to perform the Services
and the Work in accordance with its obligations hereunder.
8. Financial Ability, Insurance and Bonds. Construction Manager is
financially solvent and
possesses or is able to engage sufficient working capital to
complete the Services and the Work as required by this Agreement.
Construction Manager’s insurance policies and bonds are and will be
maintained in the form required under and for Owner’s Requirements
of Insurance (Exhibit 4) and Construction Manager’s Bond Forms
(Exhibit 5). Construction Manager’s insurance policies contain no
exclusions or exceptions to coverage other than what is provided in
or equivalent to the standard forms published for such policies of
insurance by Insurance Service Office, Inc. (ISO).
9. Qualifications of Construction Manager’s Personnel. Construction
Manager presently employs
or is able to engage sufficiently qualified and experienced
personnel as required by this Agreement. Construction Manager’s
personnel who perform Services are duly registered and/or licensed
under the laws, rules and regulations of any authority having
jurisdiction, if so required by such laws, rules and regulations to
perform the Services.
10. Conflicts of Interest. Construction Manager has been furnished
a copy of, and Construction
Manager has completed and provided to Owner prior to execution of
this Agreement and in accordance with the requirements for the
timely filing thereof under Chapter 176 of the Texas Local
Government Code, true and complete answers to Owner’s Conflict of
Interest Questionnaire, adopted June 29, 2007. Construction Manager
agrees to update its responses to the Owner’s Conflict of Interest
Questionnaire as required by Chapter 176 of the Texas Local
Government Code, and Owner shall have the right at any time to
require Construction Manager to complete and furnish to Owner a
current Conflict of Interest Questionnaire form, which shall be
completed and furnished to Owner promptly upon Owner’s written
request, failing in which Owner may terminate this Agreement
pursuant to Section XXV.2.A. Construction Manager represents that
it has advised Owner in writing
Construction Manager-at-Risk Agreement (Contract No.
________________________) Page 19 of 96 COATS, ROSE, YALE, RYMAN
& LEE, P.C.
of any past or present relationship or dealing with any third
party, including competitors of Owner or Construction Manager,
which could or could be perceived to impair or interfere with the
Construction Manager’s exercise of its independent judgment and
discretion in professionally and ethically rendering of Services
for the sole benefit and enjoyment of Owner under this Agreement or
which could cause Owner to change its evaluation of Construction
Manager and the decision to enter into this Agreement with
Construction Manager (“Conflict of Interest”). A Conflict of
Interest shall also exist when, because of other undisclosed
activities or relationships with third parties, Owner determines in
its sole discretion that Construction Manager is unable to render
impartial assistance, advice, or Services to Owner, or the
Construction Manager's objectivity in performing the Services is or
might be otherwise impaired, or when Construction Manager gains an
unfair competitive advantage or receives undisclosed profits or
benefits in addition to compensation for its performance of
Services under this Agreement. Construction Manager shall at all
times during the performance of this Agreement remain free of any
obligation of any kind to any person other than Owner where such
obligation may cause or require Construction Manager to compromise
or otherwise be in breach of its obligations to Owner, including
without limitation its obligations with respect to proprietary
rights and confidentiality and conflicts of interests. Construction
Manager has not undertaken, and during the period covered by this
Agreement, Construction Manager shall not undertake any
relationship with any person or entity that could give rise to such
a Conflict of Interest without the prior written consent of Owner.
Construction Manager shall immediately advise Owner of any
relationship that may give rise to a Conflict of Interest during
the term of this Agreement. If Owner becomes aware of any such
relationships, through Construction Manager's disclosure or
otherwise, Owner shall have the option to terminate this Agreement
in whole or in part without further liability to Construction
Manager.
11. Thorough and Careful Review of Construction Documents,
Construction Schedule and other Contract Documents. The
Construction Manager will carefully and timely review, and promptly
call
to the attention of the Owner and Architect/Engineer, and request a
resolution of, any aspect of the Construction Documents, Project
Schedule and other Contract Documents, including any Drawings,
Specifications, Product Data, plans, sketches, instructions,
information, requirements, procedures, and other data supplied to
the Construction Manager (by the Architect/Engineer, the Owner or
any other member of the Project Team), which it regards in its
opinion as unsuitable, improper, or inaccurate to accomplish the
purposes for which such document or data are furnished.
Construction Manager shall carefully and timely review and compare
the Construction Documents, Construction Schedule and all other
Contract Documents, and promptly call to the Architect/Engineer’s
attention, and request a resolution of, any aspects thereof that
Construction Manager regards in its opinion as inconsistent,
unsuitable, improper, or inaccurate to accomplish the Work in
accordance with the requirements of the Contract Documents.
Notwithstanding the above, the Construction Manager shall not be
responsible for design, except incidental designing/detailing as
required by the Specifications for Shop Drawing purposes, or as
required by specific agreement. The Construction Manager’s issuance
of written advice in the form of a request for information to the
Architect/Engineer concerning any issue of inconsistency,
unsuitability, impropriety, or inaccuracy will not excuse
Construction Manager from obtaining a resolution of such issues
before proceeding with the Work unless Owner has confirmed in
writing that it wishes the Construction Manager to proceed in
accordance with the data as originally given, notwithstanding any
contrary request for action to resolve such issues.
12. Title to Goods, Materials, Equipment and Work. The Construction
Manager 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 Construction Manager
further warrants that upon submittal of its Application for
Payment, all Work is and shall remain free and clear of liens,
claims, security interests or encumbrances in favor of the
Construction Manager, Construction Manager’s personnel,
Subcontractors, Sub-Subcontractors and Suppliers, or other persons
or entities who might otherwise have any claim by reason of having
provided labor, materials and equipment relating to the Work.
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& LEE, P.C.
13. Authority to Enter into Agreements; Legal Establishment of
Business Entities. The
Construction Manager, and all Construction Manager’s personnel,
Subcontractors, Sub- subcontractors, and Suppliers, with respect to
their portions of the Work, are fully authorized to assume their
contractual obligations to perform the same, and that each of them,
with respect to its portion of the Work, is fully licensed,
certified and authorized to perform the Work contemplated by the
Contract Documents and any other Work performed on the Project, and
will provide evidence of the same to Owner upon request. Neither
the execution and delivery of this Agreement by Construction
Manager nor the performance of its obligations hereunder will
result in the violation of any provision, if a corporation, of its
articles of incorporation or by-laws, if a limited liability
company, of its articles of organization or regulations, or if a
partnership, of any partnership agreement by which Construction
Manager is bound, or any agreement, including a “Company Agreement”
as defined under the applicable Texas Statutes, by which
Construction Manager is bound, nor will it result in conflict with
any order or decree of any court or governmental instrumentality
relating to Construction Manager. Construction Manager and each of
Construction Manager’s personnel, Subcontractors and Suppliers (i)
if a corporation or limited liability company, is duly organized,
validly existing and in good standing under the laws of the State
of Texas, or a foreign corporation or limited liability company
duly authorized and in good standing to conduct business in the
State of Texas, having all necessary corporate power and having
received all necessary corporate approvals required to execute and
deliver their respective contracts (including this Agreement), and
each of the individual signing such contracts (including this
Agreement) has been duly authorized to act for and bind the entity
for whom such signature is made; or (ii) if it is a joint venture,
partnership, limited partnership, or limited liability partnership,
then it has all necessary partnership power and has secured all
necessary approvals to execute, deliver and perform all the
obligations assumed under such contracts (including this Agreement)
as such entity; and (iii) the individual executing this Agreement
on behalf of Construction Manager, and the individual executing any
Subcontract to assume any obligation under this Agreement, has been
duly authorized to act for and bind Construction Manager or
Subcontractor, as applicable.
14. Taxes and Federal Compliance. Construction Manager, whether
Corporate, Partnership, or Sole Owner, must be current on its Bexar
County Property Taxes. If commercial personal property is located
in the jurisdiction, current renditions of these properties must be
filed with the Chief Appraiser, as required by Chapter 22, Section
22.01, of the “TEXAS PROPERTY TAX CODE,” and Construction Manager
must be current on all applicable ad valorem taxes owing to Owner.
Construction Manager certifies it is not presently debarred,
suspended for debarment, declared ineligible, or excluded from
covered transactions by any Federal department or agency.
15. Compliance with Owner Published Policies and Procedures.
Construction Manager shall
comply, and shall cause all of its employees and agents to comply,
with Owner’s Travel Reimbursement Policy, incorporated herein as
Exhibit 14.
16. Worksite Conditions. Construction Manager warrants and
represents it has been provided
unrestricted access to the existing improvements and conditions at
the Worksite. To the extent Owner has furnished any information
related to the Worksite, Construction Manager acknowledges and
accepts that such information may not be accurate and that
Construction Manager is not entitled to rely upon same to determine
the Worksite’s conditions or the accuracy of any grades,
elevations, dimensions, underground utilities (both public and
private), or locations shown in such information. Construction
Manager represents it shall investigate all Worksite conditions and
the general local conditions affecting the Work prior to submission
of its GMP Proposal for such Work. The Construction Manager has
relied and shall continue to rely solely upon its own investigation
of the Worksite in preparing its GMP Proposal. Construction Manager
shall not make or be entitled to claim any adjustment to the
Project Schedule or the GMP arising from Worksite conditions
actually encountered which differ from those that were or, in the
exercise of reasonable diligence, could have been, anticipated.
Construction Manager assumes
Construction Manager-at-Risk Agreement (Contract No.
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& LEE, P.C.
full and complete responsibility for any conditions pertaining to
the Work, the Worksite or their surroundings and all risks in
connection therewith, notwithstanding anything in any of the
Contract Documents or in any representations, statements or
information made or furnished by Owner or its representatives. With
respect to the physical Work to be performed, Construction
Manager’s warranty and representation of familiarity with and
assumption of risks of conditions and constraints shall apply as of
the time Construction Manager submits its GMP Proposal for such
Work, as provided in Section XIV.1.B.
VII. Construction Manager’s Duties
The Construction Manager shall have and fulfill the duties set
forth below. The Construction Manager’s duties shall not be
diminished by reason of any approval by Owner or the
Architect/Engineer, nor shall the Construction Manager be released
from any liability by reason of such approvals, it being understood
that the Owner at all times is ultimately relying upon the
Construction Manager’s expertise, skill and knowledge in performing
the Services and the Work required hereunder.
1. Duty to Control Cost Within the Construction Cost Limitation.
The Construction Manager
shall exercise best efforts to manage, coordinate and collaborate
with the Project Team to ensure that the total Cost of the Work
plus all of the Construction Manager’s Services and Fees, shall in
no event exceed the Construction Cost Limitation, as may be amended
by the Owne