CONSTRUCTION MANAGER-AT-RISK AGREEMENT BETWEEN THE CITY OF HOUSTON AND FOR SANITARY SEWER REHABILITATION GEORGE BUSH INTERCONTINENTAL AIRPORT (IAH)

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1 City of Houston Houston Airport System Infrastructure Division CONSTRUCTION MANAGER-AT-RISK AGREEMENT BETWEEN THE CITY OF HOUSTON AND FOR SANITARY SEWER REHABILITATION AT GEORGE BUSH INTERCONTINENTAL AIRPORT (IAH) PROJECT No. 699 CIP No.: A Page 1 of 45

2 Table of Contents ARTICLE I - PROJECT... 3 ARTICLE II - DEFINITIONS... 4 ARTICLE III - DESIGNATION OF CONSTRUCTION MANAGER AND DUTIES... 7 ARTICLE IV - CONSTRUCTION MANAGER S PERSONNEL AND SUBCONTRACTORS ARTICLE VII - PAYMENTS TO THE CONSTRUCTION MANAGER ARTICLE VIII - COST OF THE WORK ARTICLE IX - CITY S RESPONSIBILITIES ARTICLE X - INDEMNITY ARTICLE XI - CONSTRUCTION MANAGER S INSURANCE ARTICLE XII - TERMINATION ARTICLE XIII - MISCELLANEOUS PROVISIONS Page 2 of 45

3 CONSTRUCTION MANAGEMENT-AT-RISK AGREEMENT This CONSTRUCTION MANAGEMENT-AT-RISK AGREEMENT ( Agreement or Contract in Exhibit I.21: Document General Conditions) is entered into effective as of the date of countersignature by the City Controller ( Effective Date ), by and between the CITY OF HOUSTON, TEXAS, a home-rule City ( City ) and ( Construction Manager ), a authorized to do business in the State of Texas (also referred to as Party individually or Parties collectively). RECITALS WHEREAS, pursuant to Texas Government Code Chapter 2269, Subchapter F ("Code"), the City has been granted authority to procure certain construction projects using the alternative project delivery methods set forth therein; and WHEREAS, the Director determined that the construction manager-at-risk delivery method provides the best value to the City for Project No. 699, Sanitary Sewer Rehabilitation at George Bush Intercontinental Airport (IAH) ( Project ) by issuing a Request for Qualifications, dated, as amended; and WHEREAS, firms submitted responses to the Request for Qualifications on or before the deadline for submission of ; and WHEREAS, pursuant to the Code, on, the evaluation committee timely evaluated and ranked the proposers; and WHEREAS, after interviewing the short-listed proposers on, the evaluation committee selected Construction Manager on to begin contract negotiations; and WHEREAS, City and Construction Manager have negotiated the terms and conditions of the Preconstruction Services and Construction Phase of the Project, as set forth herein; NOW, THEREFORE, for and in consideration of the mutual promises, benefits, and covenants contained herein, the City and Construction Manager hereby agree as follows: ARTICLE I - PROJECT 1.01 As of the Effective Date, City intends to construct the Project at George Bush Intercontinental Airport/Houston ( IAH ). The date of Substantial Completion for the Construction Phase will be established when and if the City Engineer accepts Construction Manager s Guaranteed Maximum Price proposal. The Construction Phase is generally described as follows: Page 3 of 45

4 ARTICLE II - DEFINITIONS 2.01 As used in this Agreement, the following terms have the meanings indicated for them. Terms used in the Agreement for which a meaning is not provided in this Agreement shall have the meaning given to them in Exhibit I.21: (a) (b) Addenda: Any addenda to the Drawings or Specifications or other Contract Documents identified as Addenda, if any, in the Contract Documents. Additional Preconstruction Services: Those services defined in Section 7.01(c). (c) Applicable Laws: All laws, ordinances, orders, codes, rules, regulations, permits, and interpretations of any authority having jurisdiction over the Parties, the Project, the Work, or the Contract Documents. (d) (e) (f) (g) (h) (i) (j) Appropriated Funds: Has the meaning given to it in Section 8.04 and is a maximum monetary amount payable to Construction Manager for all services, materials, labor, and other Work required in accordance with the Contract Documents. Business Day: Every day other than a Saturday, Sunday, or a Day which is a legal holiday established by City Council. Construction Phase: The implementation and execution of the construction work required by the Contract Documents as generally described in Section Construction Phase Fee: The fee set forth in Section 7.02(d). Contractor: A construction contractor other than Construction Manager hired by the City that may work on the Project or in connection with the Project. Day: A calendar day unless otherwise specifically designated. Design Review Phase: Has the meaning given to it in Section 5.01(d). (k) Director: The Director of the Houston Airport System or any person designated by the Director to perform one or more of the Director's duties under this Agreement. (l) Document General Conditions: The document that is part of the Contract Documents and identified as the Document General Conditions in Exhibit I.21. (m) Effective Date: As defined in the introductory paragraph to this Agreement. Page 4 of 45

5 (n) Exhibit or Exhibits: The following Exhibits to this Agreement and any other Exhibits identified in a Modification, all of which are incorporated herein by reference. Ex. A B C D E F G H I Title Preconstruction Services Proposal Preconstruction Services Schedule Salary Staff Classification and Rates Guaranteed Maximum Price Proposal Form Form of Bonds and Construction Manager s Surety Letter of Commitment Intentionally Omitted Additional Services Requisition Form City Wage Rates City Required Forms I.2 Document Affidavit of Non-Interest I.3 Document Affidavit of Ownership or Control I.4 Document Conflict of Interest Questionnaire I.5 Document Pay or Play Acknowledgement Form I.6 Document Hire Houston First Affidavit I.7 Document Form of Business I.8 Document Resolution of Contractor I.9 Document List of Proposed Subcontractors and Suppliers I.10 Document Drug Policy Compliance Agreement I.11 Document History of OSHA Actions and List of On-The- Job Injuries I.12 Document List of Safety Impact Positions I.13 Document Drug Policy Compliance Declaration I.14 Document Affidavit of Insurance I.15 Document Affidavit for FAA Form I.16 Document Certificate of Compliance with Pay or Play Program I.17 Document Pay or Play Program List of Subcontractors I.28 Document Office of Business Opportunity Certification by Professional Service Provider I.19 Document General Conditions I.20 Document Supplementary Conditions (if applicable) I.21 Document Equal Employment Opportunity Compliance Program I.22 Document 008 Wage Scale and Payroll Requirements for I.23 Document Pay or Play Program Requirements I.24 Document Good Faith Effort I.25 Document Letter of Intent Page 5 of 45

6 (o) General Conditions Work: Construction Manager s on-site management, administrative personnel, insurance, bonds, equipment, utilities, and incidental work, including field labor and materials. General Conditions includes, but is not limited to: all supervision and project management, including superintendent, assistant superintendent; permits; mobilization; de-mobilization; field engineers and helpers, professional surveyor; field office; field office furnishings; office supplies; field office maintenance and repair; copiers and supplies; storage; communication devices (telephone, radio, etc.); project signs; construction fence install/remove/maintain; access construction; general clean-up; finish areas clean-up; dumpsters; temporary water service; temporary electrical service; temporary lighting; temporary telephone; temporary weather protection; temporary fire protection; equipment start and testing; monthly ice and cups, monthly toilets; monthly water; and quality control. (p) (q) (r) HAS: The Houston Airport System. Labor Burden: Indirect costs associated with employees, over and above gross compensation or payroll costs. Typical costs associated with the burden include payroll taxes, worker's compensation and health insurance, paid time off, training and travel expenses, vacation and sick leave, pension contributions and other benefits. Labor burden shall NOT include profit, general and administrative costs, short- or long-term disability, home and branch office overhead, profit sharing, bonuses, ESOP, vehicle allowances, cell phones, computer charges and other costs not directly related to employee costs. Phase: A portion of the Work identified as a Phase in the Construction Documents. (s) Preconstruction Services: The services described in Article V. (t) (u) (v) Project Improvements: All Project facilities requiring construction, including all preparatory matters prior to construction, such as site preparation. Project Manual: The specifications for the Work. It is understood that certain provisions of the Project Manual may be revised during Preconstruction Services. Project Team: The City (including the Project Manager, City Engineer and other City employees and representatives working in connection with the Project), Construction Manager, Design Consultant(s), any separate contractors employed by City, and other consultants employed for the purpose of programming, design, and construction of the Project. The constitution of the Project Team may vary at different times during the Preconstruction Services and Construction Phase of the Project. The Project Team, excluding those designated by the Construction Manager, will be Page 6 of 45

7 designated by the Director of HAS ( Director ) and may be modified from time to time by him. (w) Special Conditions: Any additional provisions identified as Special Conditions, if any, in the Contract Documents. ARTICLE III - DESIGNATION OF CONSTRUCTION MANAGER AND DUTIES 3.01 The City hereby designates and appoints to be the Construction Manager under this Agreement and authorizes the Construction Manager to so act in connection with the scope of Work set forth and described in the Contract Documents Notwithstanding anything to the contrary contained in this Agreement, City and Construction Manager agree and acknowledge that City is entering into this Agreement in reliance on Construction Manager s special abilities with respect to performing its obligations hereunder, and Construction Manager s special abilities with respect to construction management. Construction Manager covenants with City to use its best efforts, skill, judgment, and abilities to perform the services hereunder and to further the interests of City in accordance with the requirements of the Contract Documents and in accordance with the standards of a nationally recognized construction manager providing similar work involving a project such as this Project, and in compliance with all Applicable Laws. 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 The Construction Manager warrants, represents, covenants, and agrees that all of the services to be performed by it under or pursuant to this Agreement shall be of at least the standard and quality which prevail among similar businesses and organizations with knowledge and skill engaged in providing similar services in major United States urban areas under the same or similar circumstances and involving a project such as the Project The Construction Manager s duties as set forth herein shall at no time be in any way diminished by reason of any approval by the City or the City Engineer nor shall the Construction Manager be released from any liability by reason of such approval by the City Engineer, it being understood that the City at all times is ultimately relying upon the Construction Manager s skill and knowledge in performing the services required hereunder The Construction Manager warrants, represents, covenants, and agrees that the Construction Manager and all persons connected with the Construction Manager directly in charge of its 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 The Construction Manager warrants, represents, covenants, and agrees to notify Project Manager in writing within five (5) Business Days of anything within its knowledge which it discovers of any nature in any drawings, specifications, plans, sketches, instructions, information, requirements, procedures, and other data supplied to the Construction Manager (by the City or any other party) which the Construction Manager considers in its opinion to be unsuitable, improper, inaccurate, or defective in any way in connection with the purposes for which such document or Page 7 of 45

8 data is furnished. Nothing shall excuse or detract from the Construction Manager s responsibilities or obligations hereunder in any case where such document or data is furnished unless the Construction Manager advises City in writing that in Construction Manager s opinion such document or data and any requests made therein for action are unsuitable, improper, inaccurate or defective, and City confirms in writing that it wishes the Construction Manager to proceed in accordance with the documents or data as originally given The Construction Manager warrants, represents, covenants, and agrees to furnish efficient business administration and superintendence and perform its services hereunder in the best way and in the most expeditious and economical manner consistent with the requirements of the Contract Documents In accordance with and not as an expansion of the time limitations set forth in Exhibit I.21, the Construction Manager warrants, represents, covenants, and agrees that it shall, at its own cost, make good any errors or omissions in the Preconstruction Services it performs as soon as the Construction Manager becomes aware of such errors or omissions or is notified of such errors or omissions. Should the Construction Manager refuse or neglect to make good such errors or omissions within a reasonable time after receiving written notice requesting such remedial work, then the City shall be entitled to make good such errors or omissions at the expense of the Construction Manager. This commitment by Construction Manager is in addition to, and not in substitution for, any other remedy for errors or omissions in the Preconstruction Phase Services which the City may have at law or in equity Construction Manager warrants and represents that it is a duly organized, validly existing and in good standing under the laws of that State and it has all necessary power and has received all necessary approvals to execute and deliver this Agreement, and the individual executing the Agreement on behalf of Construction Manager has been duly authorized to act for and bind Construction Manager Construction Manager shall perform the Work in strict conformance with the Contract Documents and all Applicable Laws Construction Manager shall perform all services and any other things required by the Contract Documents, as well as those services and any other things reasonably inferable from the Contract Documents Construction Manager shall perform the Work to further the interests of City and the Project Construction Manager shall establish and maintain a numbering and tracking system for all Work records, including, Modifications, requests for information, submittals and supplementary instructions, and shall provide updated records at each meeting with City as requested Subcontracts or other agreements shall conform to the applicable payment provisions of the Contract Documents, and shall not be awarded on the basis of cost plus a fee without the prior consent of City Engineer. Page 8 of 45

9 Construction Manager shall require its Subcontractors who have not competitively bid to disclose to City their markups (both overhead and profit), estimates, and costs calculated in their bids or incurred or expected in subsubcontracts and the Work performed, including any Change Order Work Construction Manager shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to Construction Manager by the terms of the Contract Documents, and to assume toward Construction Manager all the obligations and responsibilities that Construction Manager, by these Documents, assumes toward City. Each subcontract agreement shall preserve and protect the rights of City under the Contract Documents with respect to the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights. Where appropriate, Construction Manager shall require each Subcontractor to enter into similar agreements with subsubcontractors. Construction Manager 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 that may be at variance with the Contract Documents. Subcontractors shall similarly make copies of applicable portions of such documents available to their respective proposed sub-subcontractors. Construction Manager shall provide City with a copy of each subcontract agreement upon request Each subcontract agreement is assignable by Construction Manager to City effective only after termination by default of this Agreement by Construction Manager and effective only for those subcontract agreements that City accepts by notifying the Subcontractor in writing. Construction Manager agrees to execute such additional documents as City may request to confirm such assignments. Construction Manager shall include a provision in each subcontract agreement recognizing the rights of City pursuant to the foregoing contingent assignment. Despite such acceptance by City of any such assignment, City shall not be liable for anything under such subcontract prior to the acceptance by City of the assignment or for any liability of Construction Manager to the Subcontractor. Acceptance of any such assignment shall not relieve Construction Manager or the Subcontractor of their responsibilities and liabilities for any Work performed prior to City s acceptance of such assignment Nothing contained in the Contract Documents shall create any obligations or liabilities owed by City to any Subcontractor or Supplier. Except as may be required by law, City shall have no liability or responsibility for the performance or misperformance of any Subcontractor, Supplier, or consultant, even if City designated, required, identified or approved such Subcontractor, Supplier, consultant, or sub-consultant of any tier Construction Manager is an independent contractor and not an agent of City. Construction Manager shall be liable to City for acts and omissions that result in a breach of the obligations herein of Construction Manager and Construction Manager s Subcontractors and Page 9 of 45

10 Suppliers of any tier, and their agents, employees and parties in privity of contract with any of them and anyone acting on behalf of any of them, and any other persons performing any of the Work directly or indirectly under contract with Construction Manager, including any design professionals and their consultants and sub-consultants of any tier Construction Manager and any of its design professionals, consultants, the Subcontractors and Suppliers and their agents and employees warrant that the information provided to City about the qualifications, including financial information and past performance, is accurate, has not materially changed, and does not omit information that would materially affect those qualifications and that Construction Manager is financially sound, fully solvent, and experienced in and fully qualified to perform the type of Work to be performed under this Agreement Construction Manager represents that it has: (a) visited the Project site, (b) taken such other steps as may be necessary to ascertain the nature and location of the Work and the general and local conditions that affect the Work or the cost thereof, and (c) investigated the labor situation, including the availability of all necessary labor Construction Manager shall coordinate with other Contractors and projects on or around the Project site, as well as HAS staff, and to minimize disruptions to normal airport operations Without diminishing the other obligations of Construction Manager, Construction Manager represents and agrees that it will perform its services under no circumstances with less than the usual and customary standards of Construction Manager s profession or business and in compliance with all Applicable Laws and in strict accordance with the Contract Documents. Construction Manager agrees to bear the full cost of correcting Construction Manager s Work and services that are not in strict conformance with the Contract Documents or Applicable Laws or that are otherwise defective or negligently performed, those of its Subcontractors, Suppliers, and consultants, and any related damages or other harm. The term defective work or similar terms when used in the Contract Documents include Work that is not in strict conformance with the Contract Documents. Construction Manager agrees to perform Work required by the Contract Documents in a good and workman like manner Construction Manager represents and agrees to perform its services under the Contract Documents in an expeditious and economical manner consistent with good business practices and the interests of City in accordance with the Project Schedule Construction Manager represents and agrees that there are no obligations, commitments, or impediments of any kind that will limit or prevent performance of its obligations under this Agreement Except for the obligations of City set forth in this Agreement, City has no liability to Construction Manager or to anyone claiming through or under Construction Manager by reason of the execution or performance of this Agreement Construction Manager shall give all required notices and comply with all Applicable Laws. The Work, including documents that are the responsibility of Construction Manager, shall be in accordance with all Applicable Laws. If Construction Manager otherwise performs any Page 10 of 45

11 Work that is contrary to Applicable Laws, Construction Manager shall correct such Work at its expense and shall be liable for all costs, delays, and damages attributable thereto, including any damage to other Work or other property arising from or relating to the corrective Work. Anything to the contrary notwithstanding, Construction Manager is not responsible for errors in the plans or specifications provided by or through the City unless Construction Manager performs Work with actual or constructive knowledge of errors in the plans or specifications or knowledge that such plans or specifications do not conform to Applicable Laws Construction Manager shall establish, implement, and follow a quality assurance and quality control program for the Work during all Construction Phases. Construction Manager shall provide Project Manager with a copy of the written quality assurance and quality control program In addition to the warranties and representations set out in other sections of the Contract Documents, as well as the warranties imposed upon Construction Manager under all Applicable Laws, Construction Manager warrants the following: (a) (b) (c) (d) (e) (f) (g) Construction Manager is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation/incorporation and qualified to conduct business in Texas, is financially secure, and in respect of which no action relating to insolvency, liquidation or general suspension of payments by Construction Manager has, to the knowledge of Construction Manager, been taken. The execution, delivery and performance of the Contract Documents by Construction Manager has been duly authorized by all necessary corporate action on the part of Construction Manager and does not and will not require the consent of any trustee or holder of any indebtedness or other obligation of Construction Manager or any other party to any other agreement with Construction Manager. This Agreement has been duly executed and delivered by Construction Manager. This Agreement constitutes the legal, valid, binding and enforceable obligation of Construction Manager. No governmental authorization, approval, order, license, permit, franchise or consent, and no registration, declaration or filing with any governmental authority is required on the part of Construction Manager in connection with the execution, delivery and performance of the Contract Documents, except those that have already been obtained or which Construction Manager anticipates will be timely obtained in the ordinary course of performance of the Contract Documents. To the best of Construction Manager s knowledge, there are no strikes, lockouts or other labor disputes pending, or threatened or scheduled to occur, with respect to any of the factories, offices or other facilities of any of Construction Manager s Suppliers or proposed Subcontractors. Construction Manager is (or will be prior to performing any Work on the Project Sites) the holder of all applicable licenses required to permit it to operate or conduct its business now and as contemplated by the Contract Documents. Construction Manager has not engaged in any illegal collusion or conspiracy or any other illegality in connection with the performance of this Agreement. Page 11 of 45

12 (h) (i) (j) As of the Effective Date, to the best of Construction Manager s knowledge, City has fulfilled all of its obligations under the Agreement, and there are no breaches, defaults or unsatisfied conditions existing (or which would exist after the passage of time and/or giving of notice) that would allow Construction Manager to terminate the Agreement. There are no disputes or legal proceedings between Construction Manager and City. As of the Effective Date, the representations and warranties of Construction Manager contained in the Agreement are true and correct Construction Manager shall provide Value Engineering suggestions to Project Manager. Whenever the term value engineering is used in conjunction with this Agreement or the Project, it has its commonly accepted meaning within the construction industry and does not imply the practice of professional engineering without a license. If any Value Engineering activities constitute the professional practice of engineering, then such activities shall be performed by an engineer licensed in Texas Construction Manager shall give constant attention to the Work to facilitate the progress thereof, and shall cooperate with the City Engineer and his inspectors and with other Construction Managers and Contractors in every way possible. The City Engineer shall determine the areas in which the Construction Manager and Contractors shall work in the event of a disagreement, and the Construction Manager shall cooperate in such processes and decisions. The Construction Manager shall have a competent superintendent on the Work at all times who is fully authorized as his agent on the Work. The superintendent shall be capable of reading and fully understanding the plans and specifications, shall receive and fulfill instructions from the City Engineer and his authorized representative, and shall be present at the Work site at all times while Work is in progress The City reserves the right to contract for and perform other or additional work on or near the Work covered by this Agreement. When separate contracts are let within the limits of any one project, each Construction Manager or Contractor shall conduct its work so as not to interfere with or hinder the progress or completion of the work being performed by other Construction Managers or Contractors. Contractors working on the same project shall cooperate with each other as directed by the City Engineer Each Construction Manager or Contractor shall arrange its work and shall place and dispose of the materials being used so as to not interfere with the operations of other Construction Managers or Contractors within the limits of the same project. Construction Manager or Contractor shall join its work with that of the others in an acceptable manner and shall perform it in proper sequence to that of the others. Each Construction Manager or Contractor involved shall assume all liability, financial or otherwise, in connection with its contract and shall protect and save harmless the City from any and all damages or claims that may arise because of inconvenience, delays, or loss experienced by it because of the presence and operations of other Construction Managers or Contractors working within the limits of the same project. Page 12 of 45

13 3.30 Subject to the obligations to cooperate with the City and Contractors with respect to contemporaneous operations and proximity at the Project site including, without limitation, relocating work areas, the Construction Manager remains solely responsible for its means, methods, techniques, sequences and procedures and safety programs in connection with its Work Construction Manager acknowledges that the Project site is, and at all times during the Work will be, within or around critically important areas of the operational airfield at George Bush Intercontinental Airport/IAH. Construction Manager agrees that at all times when any forces are mobilized to strictly adhere to rules and instructions regarding permitted activities and physical locations on the airfield given by any authorized HAS personnel. Such instructions will include, without limitation, demobilizing from Work areas on minutes notice to allow aircraft movement; coordination of phased work areas to keep aircraft paths open and operational; vigilant cleaning and removal of all foreign object debris caused by its Work from any areas on which aircraft may travel. Construction Manager agrees and warrants that all delays and disruption caused by such adherence to rules and instructions or coordination for activities as specified herein have been taken into account in preparing the Guaranteed Maximum Price and that Construction Manager will not seek any increase in the Guaranteed Maximum Price or the Contract Time on account of such adherence and coordination. ARTICLE IV - CONSTRUCTION MANAGER S PERSONNEL AND SUBCONTRACTORS 4.01 The Construction Manager s personnel and the Construction Manager s associated entities to be employed in the Project are identified in Exhibit C to the extent known at the time of executing this Agreement. Those personnel and entities identified as key personnel and entities in Exhibit C shall not be changed except with the City Engineer s prior written consent, which shall not be unreasonably withheld. Key personnel and entities not identified in Exhibit C shall be identified to City Engineer in writing as soon as they are identified and shall be subject to City Engineer s reasonable approval. If City Engineer does not approve, Construction Manager shall propose an alternate person(s) reasonably acceptable to City Engineer and at the time of approval by City Engineer such person(s) shall automatically become a part of Exhibit C All Subcontracts shall be awarded in accordance with the applicable provisions of Texas Government Code Chapter 2269, Subchapter F. Construction Manager shall notify City Engineer in advance in writing of the identities of all Subcontractors with which it intends to subcontract. Construction Manager shall not subcontract with any Subcontractor to which City Engineer has a reasonable objection in accordance with Texas Government Code Chapter 2269, Subchapter F. A notice of intent to employ a particular Subcontractor shall be given by the Construction Manager to the City as to permit City Engineer adequate time for review of the prospective Subcontractor without delay to the Project and to allow time for Construction Manager to make substitute selections, but in no event shall such notice be given less than ten (10) days before the intended subcontract date. If City Engineer has a reasonable objection to a proposed Subcontractor, Construction Manager shall propose another against whom City Engineer has no reasonable objection. Construction Manager shall not be required to subcontract with any Subcontractor to which it has reasonable objection. When Construction Manager s Subcontractors for constructing the Work have been identified, they shall not be changed without Page 13 of 45

14 City Engineer s prior written approval, which shall not be unreasonably withheld. Construction Manager shall not incur any Subcontract costs prior to issuance by City of a Notice to Proceed for such Work. If the bidding process does not result in the selection of a subcontractor who is acceptable to the City Engineer, the Project Manager may ask the Construction Manager to submit a proposal for the specific portion of work for approval by the City Engineer. ARTICLE V - CONSTRUCTION MANAGER S SERVICES: PART 1: PRECONSTRUCTION SERVICES 5.01 In implementation of the responsibilities and duties of the Construction Manager as set forth herein, the Construction Manager shall perform Preconstruction Services as described in this Article V-Part 1 for Construction Phases of the Project described in this Agreement. Following execution of this Agreement, Construction Manager and City Engineer will negotiate the schedule for the rendition of the Preconstruction Services to be performed by the Construction Manager and said schedule shall be made a part of this Agreement as Exhibit B. In the case of a conflict between Exhibit B and Article V-Part 1, Exhibit B shall prevail. Preconstruction Services shall be completed on or before sixty (60) days after issuing the 100% Construction Documents. Construction Manager shall: (a) General Coordination. (1) Participate as a member of the Project Team in the review of the Project Manual. (2) Attend regular meetings with other members of the Project Team during the Design Review Phase of the Project to advise them on site usage and site improvements, selection of materials, building systems and equipment, and methods of delivery of materials, systems, and equipment. (3) Provide recommendations and information to the other members of the Project Team regarding the Work, including but not limited to construction feasibility; quality; availability of materials and labor; time requirements for installation and construction; assignment of responsibilities for safety precautions and programs, temporary Project facilities; equipment, materials, and services for common use of the Construction Manager and City s separate contractors, if any; cost factors, including costs of alternative materials or designs, costs of operation and maintenance, preliminary budgets, and possible cost savings; methods of verification for determining that the requirements and assignment of responsibilities are included in the proposed Contract Documents, and any other matters necessary to accomplish an authorized Construction Phase in accordance with the Schedule described in Section 5.01 (b) and Project construction budget established by Project Manager. (4) At Project Manager s request, attend public meetings and hearings concerning the development and schedule of the Project and/or the Construction Phase. (5) Develop and update a Constructability Review report which is a report resulting from frequent communication with the Project Team and which will outline items that in the Construction Manager s opinion may cause Page 14 of 45

15 problems in the way the Project is to be constructed and which will review the overall coordination of specifications and drawings, details, and discrepancies that if left unattended may result in Change Orders or claims once Project construction commences. (6) Creation and continuous updating of a decision tracking system in a format acceptable to Project Manager. (b) Scheduling. (1) Develop a critical path Project schedule ( Schedule ) for the Construction Phase for the Project and for the overall Work for the other Project Team members review and the Project Manager s approval, that coordinates and integrates the Construction Manager s services, the Design Consultant s design, the work of other consultants and Suppliers, and the City s activities with the anticipated construction schedules for other contractors, if any. (2) Update the Schedule as is reasonably required but at least monthly to incorporate an updated, detailed listing for all activities of the Project, including, without limitation: a) Commencement, milestone and completion dates for Preconstruction Services and the Construction Phase; b) Times of commencement and completion for each Subcontractor; c) Required activity sequences and durations; d) Project building permits acquisition time requirements; e) Subcontractor bid package dates; f) Processing of Shop Drawings and samples; g) Approval periods as delineated in General Conditions; and h) A recommended schedule for the Construction Manager s purchase of materials and equipment requiring long lead time procurement, delivery dates of products requiring long lead time procurement, and methods to expedite and coordinate delivery of long lead time procurements including coordination of the Schedule with the early preparation of relevant portions of the Contract Documents by the Design Consultant. (3) Provide the necessary critical path Schedule control with a goal to attain the Substantial Completion of each portion of the Work and the entire Project and any other milestones on or before the date by which the approved Guaranteed Maximum Price proposal require Construction Manager to achieve Substantial Completion of the Construction Phase and any such milestones; and (4) Create and maintain the Schedule using Primavera v8.3, or latest version, software program (the license and training for which shall be at Construction Manager s sole expense). (5) All scheduled work shall conform and comply with the FAA approved Construction Safety Phasing Plan (CSSP). (6) Schedule shall not have constraints or open ends except on contractual milestones as delineated above. All open ends and out of sequence issues Page 15 of 45

16 will be resolved by Construction Manager prior to submittal, for both baseline schedules and progress updates. (7) Schedule shall be set up to be cost loaded as reflected in the Construction Manager s submitted and approved schedule of values. (c) Budget and Cost Consultation. (1) Obtain from City estimates or budgets for all Project service, materials and property costs and expenses not known directly by the Construction Manager, such costs to include, without limitation, City s personnel costs, force account labor and special consultants. (2) Provide throughout the duration of the Project, updates of ongoing cost and budget impact, and provide continuous cost consultation services. Prepare and be responsible for all procurement and construction cost estimates. Advise the other members of the Project Team immediately if at any time the Construction Manager has knowledge or belief that the previously established cost or Schedule goals will not be met, and make recommendations to the Project Team for corrective action. (3) At the completion of a Phase of the Project, update and refine a comparison of actual and projected costs to the City s Project construction budget, and in the event such actual and projected costs exceed the original Project construction budget, develop and implement reasonable strategies to be approved by the City Engineer to reduce the costs projected to be incurred during all Phases of the Project. (d) Coordination of Design and Construction Contract Documents. (1) Review for regulatory compliance, constructability, and functionality related to the Work of all plans, specifications, and other design documents during the Design Review Phase and advise the Project Manager on site use, foundations, systems, materials, equipment, construction feasibility, availability of labor and materials, procurement time requirements, installation and construction, relative costs, and provide recommendations to City without assuming Design Consultants professional responsibility ( Design Review Phase ). (2) Assist in development of any Special Conditions of the Construction Contract Documents, which shall be approved in writing by mutual agreement between the Construction Manager and the City Engineer at City Engineer s sole option and discretion. (3) At specified times required by the Project Manager, review the Drawings and Specifications (including the entire Project Manual containing the Specifications) as they are being prepared, advise Project Manager of any error, inconsistency omission, or other defect discovered, and recommend alternative solutions, including Value Engineering whenever the design affects construction feasibility, budget, risks, or schedules (without assuming the Design Consultants professional responsibility). (4) Prepare a constructability review report. Page 16 of 45

17 (5) Coordinate with the Project Manager to ensure that the Drawings and Specifications and other Contract Documents comply with all applicable State of Texas and City procurement requirements and other Applicable Laws. (6) Consult with Project Manager and Design Consultant to recommend what materials, equipment, component systems, and construction types should be included in the Contract Documents; suggest reasonable adjustments in the scope of the Project; and suggest alternates to include in bids in the Construction Documents to keep the City s construction budget within the Guaranteed Maximum Price for the Construction Phase and the limit of the Appropriated Funds. (e) Existing Site Conditions (1) City has afforded the Construction Manager with unrestricted access to the existing improvements and conditions on the site and has given the Construction Manager the opportunity to thoroughly investigate the existing conditions. As to existing conditions, Construction Manager as part of Preconstruction Services shall perform a thorough investigation of all such conditions prior to submitting any Guaranteed Maximum Price proposal for any Construction Phase. Submission of a Guaranteed Maximum Price proposal shall be a representation by Construction Manager that it has completed such thorough investigation and is prepared to complete the Project within the Guaranteed Maximum Price and agreed Contract Time and Project Schedule. The results of Construction Manager s investigation shall be deemed to have been taken into account in establishing the Guaranteed Maximum Price for each Construction Phase. Construction Manager shall not be entitled to a claim for an adjustment in time or price under the Document General Conditions for conditions which Construction Manager discovered or should have discovered in Construction Manager s investigation given the role of the Construction Manager and the scope of its Work. (f) Construction Planning. (1) Identify, and recommend purchasing in advance to the City, items requiring extended delivery times ( long-lead items ), and expedite the procurement of such items to ensure their delivery by the required dates and with sufficient time to allow completion of the Work within the time requirements of the Contract Documents. Consult with Design Consultant, as requested by Project Manager and subject to Project Manager s prior approval, in the preparation of performance specifications and requests for technical proposals for the procurement and installation of systems, components and in the procurement of long lead items. If requested by Project Manager, and subject to Project Manager s prior approval, issue requests for technical proposals to qualified sources and receive proposals and assist in their evaluation. Page 17 of 45

18 (2) Make recommendations to the other members of the Project Team regarding the division of Contract Documents and Project Manual to facilitate the bidding and awarding of Subcontracts, to allow for phased or staged construction, or multiple separate contracts, and to take into consideration such factors as time of performance, type and scope of work, availability of labor and materials, overlapping trade jurisdictions, provisions for temporary facilities, comparisons of factory and on-site production costs, shipping costs, code restrictions, the City s goals for M/WBE subcontractor participation. (3) Review the Drawings and the Project Manual with the other members of the Project Team to eliminate areas of conflict and overlap in the work to be performed by the various Subcontractors or City s separate contractors, if any. (4) For the Construction Phase, schedule and conduct pre-bid conferences with interested bidders, Subcontractors, material Suppliers, and equipment Suppliers, and record minutes of same. (5) In accordance with the applicable provisions of Texas Government Code Chapter 2269, Subchapter F, as amended from time to time, Construction Manager shall publicly advertise and solicit either competitive bids or competitive sealed proposals from potential Subcontractors for the performance of all major elements of the Work other than the minor work that may be included in General Conditions Work. Construction Manager shall receive and open all Subcontractor bids or proposals. Construction Manager and Project Manager shall review all Subcontractors bids or proposals in a manner that does not disclose the contents of the bid or proposal during the selection process to individuals other than those employed by the Construction Manager, City, or Design Consultant. All bids and proposals shall be made public after the award of the subcontract or not later than the seventh day after the date of final selection of bids or proposals, whichever is later. If Construction Manager reviews, evaluates, and recommends to City a bid or proposal from a Subcontractor, but City requires a bid or proposal from another Subcontractor to be accepted, then, pursuant to the terms of the Contract, City shall compensate Construction Manager by a change in price, time, or Guaranteed Maximum Price for any additional cost and risk which Construction Manager may incur because of City s requirement that another Subcontractor bid or proposal be accepted. If the bidding process does not result in the selection of a Subcontractor who is acceptable to the City Engineer and the Construction Manager has not otherwise submitted a bid upon the same terms as other Subcontractors during such bidding process, the Project Manager may ask the Construction Manager to submit a proposal for the specific portion of work for approval by the City Engineer. (6) Assist the City, the appropriate separate City s Contractor, if any, the appropriate Design Consultant or other consultant, in obtaining all applicable code and regulatory agency reviews and approvals for the Project or any portion thereof. Page 18 of 45

19 (7) Construction Manager shall review the Contract Documents to ensure that they contain adequate provision for all temporary facilities necessary to enable the Subcontractors to perform their work, and provisions for all of the job site facilities necessary to manage, inspect, and supervise construction of the Work. (8) In accordance with Exhibit I.21, Construction Manager is responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the Work. Construction Manager shall provide recommendations and information to City Engineer with respect to the assignment of responsibilities for safety precautions and programs, temporary Project facilities, and equipment, materials, and services for common use of the Subcontractors. Verify that such assignments with respect to the Subcontractors are included in the Contract Documents. (9) Construction Manager shall develop a Subcontractor Procurement Plan that will clearly delineate and their proposed: (i) Packaging of each subcontractor s scope of work (ii) Method of advertisement (iii) Basis for selection of each subcontractor and award recommendation (iv) Wage Rate requirements (v) M/WBE and other requirements and steps the Construction Manager will take to assure maximum reasonable open competition and an open competition process in the selection of all subcontractors (g) (h) Furniture, Fixtures and Equipment. Construction Manager shall consult with and make recommendations to the Project Manager on the acquisition schedule for fixtures, furniture, and equipment, if applicable, and coordinate the Construction Manager s purchase and installation of such items with the Project Manager as may be required to meet the Schedule. Guaranteed Maximum Price. (1) Upon request by the City Engineer, Construction Manager shall submit a Guaranteed Maximum Price proposal for each Construction Phase of the Project to City Engineer in the form attached hereto as Exhibit D which shall also state the Schedule, Contract Time, and dates of Substantial Completion for such Construction Phase (which may be expressed in terms of amount of time after a Notice to Proceed is issued for such Construction Phase) upon which the proposal is based. It is the intent of the Parties to achieve the best possible price from Subcontractors in developing Construction Manager s Guaranteed Maximum Price proposal. As such, it is acknowledged by the Construction Manager that the timing of the bid process with potential subcontractors and the subcontracting of the Work to successful Subcontractors is critical due to pricing fluctuations caused by the current economy. Construction Manager agrees to use reasonable commercial efforts to ensure that the prices it receives in the Subcontractor bidding process for purposes of its Guaranteed Maximum Price proposal meet or exceed bid document requirements, by Page 19 of 45