1999-044-CONSTRUCTION CONTRACT PARIS SANTA FE FRISCO RAILROAD DEPOT REHABILITATION PROJECT, CSJ #0901-29-012
RESOLUTION NO. 99-044
WHEREAS, the City Council of the City of Paris did heretofore, on the 29th day of
April, 1996, in Resolution No. 96-037, as the nominating entity for the Greater Paris
Development Foundation, Inc., apply for the Statewide Transportation Enhancement Program
Grant for the project entitled "Paris Santa Fe Frisco Railroad Depot Rehabilitation"; and,
WHEREAS, the City Council of the City of Paris did heretofore, in said resolution, accept
the donation of the depot from the Kiamichi Railroad, which depot will be placed towards the
City's twenty percent (20%) cash match necessary under the terms of the grant; and,
WHEREAS, the City Council of the City of Paris did heretofore, on the 13th day January,
1997, in Resolution No. 97-004, authorize the execution of the Agreement with the Texas
Department of Transportation for the Paris Santa Fe Frisco Railroad Depot Rehabilitation Project,
CSJ #0901-29-012; and,
WHEREAS, the City Council of the City of Paris did heretofore, on the 14th day of July,
1997, in Resolution No. 97-084, authorize the execution of the Lobbying Certification for
Contracts, Grants, Loans, and Cooperative Agreements as a part of said agreement with the Texas
Department of Transportation for said project; and,
WHEREAS, the City Council of the City of Paris did heretofore, on the 19th day of
December, 1997, in Resolution No. 97-154, accept the proposal of Keystone Architects and
authorize the execution of the Standard Form of Agreement Between Owner and Architect for the
Paris Santa Fe Frisco Railroad Depot Rehabilitation Project; and,
WHEREAS, the City of Paris is in need of a construction manager for the Paris Santa Fe
Frisco Railroad Depot Rehabilitation Project as funded in the aforementioned Statewide
Transportation Enhancement Program Grant; and,
WHEREAS, Hansen and Associates has made a proposal for such services, and it is
deemed appropriate that such proposal be accepted and that a professional services contract be
executed; and,
WHEREAS, the form of the Construction Manager Contract, attached hereto as Exhibit
A, should, in all things, be approved, and the Mayor of the City of Paris,
should be authorized to execute the same; NOW, THEREFORE,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PARIS, that the
proposal of Hansen and Associates for construction manager for the Paris Santa Fe Frisco Railroad
Depot Rehabilitation Project, CSJ #0901-29-012, be, and the same is hereby, accepted; and,
BE IT FURTHER RESOLVED, that the form of the Construction Manager Contract,
attached hereto as Exhibit A, be, and the same is hereby, approved; and,
BE IT FURTHER RESOLVED, that the Mayor of the City of Paris, ,
be, and s/he is hereby, authorized and directed to execute, on behalf of the City of Paris, the
Construction Contract for the Paris Santa Fe Frisco Railroad Depot Rehabilitation Project, CSJ
#0901-29-012, under the terms and conditions and in the form shown in Exhibit A, attached
hereto.
PASSED AND ADOPTED this 6th day of May, 1999.
}
ayor
ATTEST:
Mattie Cunningham, City Cler
APPROVED AS TO FORM:
~Lz,~
cott P. Foster, City Attorney
CONSTRUCTION MANAGER CONTRACT
SANTA FE - FRISCO DEPOT PROJECT
CITY OF PARIS
PARIS, TEXAS
This Agreement is made by and between the City of Paris, Paris, Texas, (Owner)
by and through its authorized representative, and Hansen and Associates by and
through Joan E. Moore, President (Construction Manager).
I. PARTIES
A. The Owner is City of Paris, Paris Texas. whose mailing address is P. O. Box 9037, Paris. Texas
75461-9037 with a physical address of t35 Southeast First Street, Paris, Texas. Service should be
had upon Michael E. Malone, City Manager. at that address.
B. The Construction Manager is Hansen and Associates. whose mailing address is 3035 Oak Creek
Drive, Paris, Texas 75462. Service should be had upon Joan E. Moore, President. at that address.
II. OWNER'S RESPONSIBILITIES
A. The Owner shall provide full information regarding requirements for the Project including a
program which shall set forth the Owner's objectives. schedule, constraints and criteria, including
space requirements and relationships, flexibility, expandability, special equipment. systems. and site
requirements.
B. The Owner shall establish and update an overall budget for the Project based on consultation with
the Construction Manager and Architect. which shall include the Construction Cost. the Owner's
other costs and reasonable contingencies related to all of these costs.
C. If requested by the Construction Manager, the Owner shall furnish evidence that financial
arrangements have been made to futfill the Owner's obligations under this Agreement.
D. The Owner shall designate a representative authorized to act on the Owner's behalf with respect to
the Project. The Owner. or Sllch authoriz.ed representative, shall render decisions in a timely manner
pertaining to docmnents Sllbmitted by the Construction Manager in order to avoid unreasonable detay
in the orderly and sequential progress of the Construction Manager's services.
E. The Owner shall retain an architect whose services. duties and responsibilities are described in the
form of a contract between the Owner and the Architect. The Terms and Conditions of the
Agreement between the Owner and Architect shall be furnished to the Construction Manager and
shall not be modified without written consent of the Construction Manager. which consent shall not
be unreasonably withheld. The Construction Manager shall not be responsible for actions taken by
the Architect.
F. The Owner shall furnish stmctural. mechanical. chemical. air and water pollution tests, tests for
hazardous In.1terials, and other laboratory and environmental tests, inspections and reports required
by law or the Contract Documents.
G. The Owner shall furnish at Owner's expense all legal, accountiug and insurance counseling services
as may be necessary at any time for the Project. including auditing services the Owner may require
to verify the Contractor's Applications for Payment or to ascertain how or for what purposes the
Contractors have used the money paid by or on behalf of the Owner.
EXHIBIT A
H. The Owner shall furnish the Construction Manager with a sufficient quantity of Construction
Documents.
I. Prompt written notice shall be given by the Owner to the Constmction Manager and Architect if the
Owner becomes aware of any fault or defect in the Project or nonconformance with the Contract
Documents.
J. The Owner reselVes the right to perfoon construction and operations related to the Project with the
Owner's own forces, and to award contracts in connection with the Project which are not part of the
Construction Manager's responsibilities under this Agreement. The Construction Manager shall
notify the Owner if any such independent action will interfere with the Constmction Manager's
ability to perfoon the Constmction Manager's responsibilities under this Agreement. When
perfooning construction or operations related to the Project, the Owner agrees to be subject to the
same obligations and to have the same rights as the Contractors.
K. Infonnation or services under the Owner's control shall be furnished by the Owner with reasonable
promptness to avoid delay in the orderly progress of the Construction Manager's selVices and the
progress of the Work.
L. The Owner shall receive bids and award or reject contracts for construction taking into consideration
recommendations of the Construction Manager.
III. CONSTRUCTION MANAGER'S RESPONSIBILITIES
A. Pre-construction Phase
I. The Construction Manager shall review the program furnished by the Owner to ascertain
the requirements of the Project and shall arrive at a mutual understanding of such
requirements with the Owner.
2. The Construction Manager shall provide a preliminary evaluation of the Owner's program,
schedule, and construction budget requirements. each in teons of the other.
3. Based on early schematic designs and other design criteria prepared by the Architect. the
Construction Manager shall prepare preliminary estimates of Construction Cost for
program requirements using area. volume or similar conceptual estimating techniques. The
Construction Manger shall provide cost evaluation of alternative materials and systems.
4. The Construction Manager shall expeditiously review design documents during their
development and advise on proposed site use and improvements, selection of materials.
building systems and equipment. and methods of Project delivery. The Construction
Manager shall provide recommendation on relative feasibility of construction methods,
availability of materials and labor, time requirements for procurement, installation and
construction, and factors related to construction cost including, but not limited to, costs of
alternative designs or materials, preliminary budgets, and possible economies.
5. The Construction Manager shall prepare and periodically update a Project Schedule for the
Architect's review and the Owner's acceptance. The Construction Manager shall obtain
the Architect's approval for the portion of the preliminary project schedule relating to the
perfonnance of the Architect's services. In the Project Schedule. the Construction Manager
Construction Manager Contract Page 2
shall coordinate and integrate the Construction Manager's services, the Architect's services
and the Owner's responsibilities with anticipated construction schedules. highlighting
critical and long-lead-time items.
6. As the Architect progress with the preparation of Schematic. Design Development and
Construction documents. the Constmction Manager shall prepare and update. at appropriate
intervals agreed to by the Owner. Construction Manager and Architect, estimates of
Construction Cost of increasing detail and refinement. The estimated cost of each contract
shall be indicated with supporting detail. Such estimates shall be provided for the
Architect's review and the Owner's approval. The Construction Manager shall advise the
Owner and Architect if it appears that the Construction Cost may exceed the latest approved
Project budget and make recommendations for corrective action.
7. The Construction Manager shall consult with the Owner and Architect regarding the
Construction Documents and make recommendations whenever design details adversely
affect constmctibility. cost or schedules.
8. The Constmction Manager shall provide recommendations and information to the Owner
and Architect regarding the assignment of responsibilities to temporary Protect facilities
and equipment, materials and services for common use of the Contractors. The
Construction Manager shall verifY that such requirements and assignment of
responsibilities are included in the proposed Contract Documents.
9. The Constmction Manager shall provide recommendations and information to the Owner
regarding the allocation of responsibilities for safety programs among the Contractors.
10. The Construction Manager shall advise on the division of the Project into individual
Contracts for various categories of work. If multiple Contracts are to be awarded. the
construction Manager shall review the Constmction Documents and make
recommendations as required to provide that (t) the Work of the Contractors is coordinated,
(2) all requirements for the Project have been assigned to the appropriate Contract, (3) the
likelihood of jurisdictional disputes has been minimized. and (4) proper coordination has
been provided for phased construction.
II. The Construction Manager shall prepare a project constmction schedule providing for the
components of the Work, including phasing of constmction. times of commencement and
completion required of each Contractor, ordering and delivery of products requiring long
lead time, and the occupancy requirements of the Owner. The Constmction Manager shall
provide the current project constmction schedule for each set of bidding documents.
12. The Constmction Manager shall expedite and coordinate the ordering and delivery of
materials requiring long lead time.
13. The Constmction Manager shall assist the Owner in selecting, retaining and coordinating
the professional services of surveyors. special consultants and testing laboratories required
for the Project.
14. The Construction Manager shall provide an analysis of the types and quantities of labor
required for the Project and review the availability of appropriate categories of labor
required for critical phases. The Constmction Manager shall make recommendation for
actions designed to minimize adverse effects oflabor shortages.
Construction Manager Contract Page 3
15. The Construction Manager shall assist the Owner in obtaining information regarding
applicable requirements for equal employment opponunity programs for inclusion in the
Contract Documents.
t6. Following the Owner's approval of the COnsJruction Documents, the Construction manager
shall update and submit the latest estimate of Construction Cost and the Project
construction schedule for the Architcct's review and the Owner's approval.
17. The Construction Manager shall submit the list of prospective bidders for the Architect's
review and the Owner's approval.
18. The Construction Manager shall develop bidders' interest in the Project and establish
bidding schedules. The Construction Manager. with the assistance of the Architect, shall
issue bidding documents to bidders and conduct prebid conferences with prospective
bidders. The Construction Manager shall assist the Architect, with regard to questions
from bidders and with the issuance of addenda.
19. The Construction Manager shall prepare bid analyzes and make recommendations to the
Owner for the Owner's award of contracts or rejection of bid.
20. The Construction Manager shall assist the Owner in preparing Construction Contracts and
advise the Owner on the acceptability of Subcontractors and material suppliers proposed by
Contractors.
21. The COnsJruction M'Ull\ger shall assist the Owner in obtaining building permits and special
permits for permanent improvements, except for permits required to be obtained directly
by the various Contractors. The Construction Manager shall verifY that the Owner has paid
applicable fees and assessments. The Construction Manager shall assist the Owner and
Architect in connection with the Owner's responsibility for filing documents required for
the approvals of governmental authorities having jurisdiction over the Project.
B. Construction Phase - Administration of the Construction Contract
I. The COnsJruction Phase will commence with the award of the initial Construction Contract
or purchase order and. together with the Construction Manager's obligation to provide
Basic Services undcr this Agreement, will end 30 days after finat payment to all Contractors
is due.
2. The COnsJruction Manager shall provide administration of the Contracts for Construction
in cooperation with the Architect as set fonh below.
3. The COnsJruction Manager shall provide administrative. management and related services
to coordinate scheduled activities and responsibilities of the Contractors with each other and
with those of the Construction Manager. the Owner and the Architect to endeavor to
manage the Project in accordance with the latest approved estimate of Construction Cost,
the Project schedule and the Contract Documents.
4. The consJruction Manager shall schedule and conduct meetings to discuss such matters as
procedures, progrcss and scheduling. The Construction Manager shall prepare and
promptly distribute minutes to the Owner, Architect and Contractors.
5. Utilizing the Construction Schedules provided by the Contractors, the Construction
Construction Manager Contract Page 4
Manager shall update the project construction schedule incorporatiug the activities of the
Contractors on the Project, including activity sequences and durations. allocation of labor
and materials. processing of Shop Drawings, Product Data and Samples, and delivery of
products requiring long lead time and procurement. The Project construction schedule shall
include the Owner's occupancy requirements showing portions of the Project haviug
occupancy priority. The Construction Manager shall update and reissue the Project
construction schedule as required to show current conditions. If an update indicates that
the previously approved Project conslruction schedule may not be met, the Construction
Manager shall recommend corrective action to the Owner and Architect.
6. Consistent with the various bidding documents, and utilizing information from the
Contractors, the Construction M,1nager shall coordinate the sequence of construction and
assignment of space in areas where the Contractors are performing Work.
7. The Construction Manager shall endeavor to obtain satisfactory performance from each of
the Contractors. The Construction Manager shall recommend courses of action to the
Owner when requirements of a Contract are not being fulfilled.
8. The Construction Manager shall monitor the approved estimate of Construction Cost.
9. The Construction Mauager shall report to the Owner. through the Owner's Financiat
Officer, records on authorized Work performed under unit costs iucluding labor and
materials, and other Work requiring accounting records.
10. The Construction Manager shall develop and implement procedures for the review and
processing of application by Contractors for progress and final payments.
Construction Manager Contract
a.
Based on the Construction Manager's obselVations evaluations of each
Contractor's Application for Payment. the Construction Manager shall review and
certify the amounts due the respective contractors.
b.
The Construction Manager shall prepare a Project Application for Payment based
on the Contractors' Certificates for Payment.
c.
The Construction Manager's certification for payment shall constitute a
representation to the Owner, based on the Construction Manager's determinations
at the site on the data comprising the Contractors' Applications for Payment, that.
to the best of the Construction Manager's knowledge. information and belief, the
Work has progressed to the point indicated and the quality of the Work is in
accordance with the Contract Documents. The foregoing representations are
subject to an evaluation of the Work for conformance with the Contract
Documents upou Substantial Completion, to results of subsequent tests and
inspections, to minor deviations from the Contract Documents correctable prior
to completion and to specific qualifications expressed by the Construction
Manager. The issuance of a Certificate for Payment shall further constitute a
representation that the Contractor is entitled to payment in the amount certified.
d.
The issuance of a Certificate for Payment shall not be a representation that the
Construction Manager has (1) made exhaustive or continuous on - site inspections
to check the quality or quantity of the Work, (2) reviewed construction means,
methods, techniques, sequences for the Contractor's own Work, or procedures, (3)
reviewed copies of requisitions received from Subcontractors and material
Page 5
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suppliers and other data requested by the Owner to substantiate the Contractor's
right to payment or (4) ascertained how or for what purpose the Contractor has
used money previously paid on account of the contract Sum.
11. The Construction Manager shall review the safety programs developed by each of the
Contractors for purposes of coordinating the safety programs with those of the other
contractors. The Construction Manager's responsibilities for coordination of safety
programs shall not extend to direct control of or charge of the acts or omissions of the
Contractors, Subcontractors, agents or employees of the Contractors or Subcontractors, or
any other persons perfonning portions of the Work and not directly employed by the
Construction Manager.
12. The Construction Manager shall detennine in general that the Work of each Contractor is
being perfonned in accordance with the requirements of the Contract Documents.
endeavoring to guard the Owner against defects and deficiencies in the Work. As
appropriate, the Construction Manager shall have authority, upon written authorization
from the owner. to require additional inspection or testing of the Work in accordance with
the provisions of the Contract Docwnents, whether or not such Work is fabricated. installed
or completed. The Construction Manager, in consultation with Architect, may reject Work
which does not confonn to the requirements of the Contract Documents.
13. The Construction Manager shall schedule and coordinate the seqnence of construction in
accordance with the Contract Documents and the latest approved project construction
schedule.
14. With respect to each Contractor's own Work. the Construction Manager shall not have
control over or charge of and shall not be responsible for construction means, methods.
techniques. sequences or procedures, or for safety precautions and programs in connection
with the Work of each of the Contractors, since these are Solely the Contractor's
responsibility under the Contract for Constmction. The Construction Manager shall not
be responsible for a contractor's failure to cany out the Work in accordance with the
respective Contract Documents. The Constmction Manager shall not have control over a
charge of acts or omissions ofthe Contractors, Subcontractors, or their agents or employed
by the Construction Manager.
15. The Construction Manager shall transmit to the Architect requests or interpretations of the
meaning and intent of the Drawings and Specifications, and assist in the resolution of
questions that may arise.
16. The Construction Manager shall review requests for changes, assist in negotiating
Contractors' proposals, submit recommendations to the Architect and Owner, and, if they
are accepted, prepare Change Orders and Constmction Change Directives which
incorporated the Architect's modifications to the Documents.
17. The Constmction Manager shall assist the Architect in the review, evaluation and
documentation of Claims.
t8. The Construction Manager shall receive certificates of insurance from the Contractors and
forward them to the Owner with a copy to the Architect.
19. In collaboration with the Architect, the Constmetion Manager shall establish and
implement procedures for expediting the processing and approval of Shop Drawings,
Construction Manager Contract Page 6
Product Data, Samples aud other submittals. The Construction Manager shall review all
Shop Drawings, Product data, Samples and other submittals from the Contractors. The
Construction Manager shall coordinate submittals with information contained in related
documents and transmit to the Architect those which have been approved by the
Construction Manager. The Construction Manager's actions shall be taken with such
reasonable promptness as to cause no delay in the Work or in the activities or the Owner
or Contractors.
20. The Construction Manager shall record the progress of the Project. The Construction
Manager shall submit written progress reports to the Owner and Architect including
infonnation on each Contractor and each contractor's Work, as well as the entire Project,
showing percentages of completion. The Construction Manager shall keep a daily log
containing a record of weather. each Contractor's Work on the site. number of workers,
identification of equipment, Work accomplished, problems encountered, and other similar
relevant data as the Owner may require.
2 t. The Construction Manager shall maintain at the Project site for the Owner one record copy
of all Contracts. Drawings, Specifications, in good order and marked currently to record
changes and selections made during construction, and in addition, approved Shop
Drawings. Product Data, Samples and similar required submittals. The Construction
Manager shall maintain records. in duplicate, of principal building layout lines, elevations
of the bottom of footings, floor levels and key site elevations certified by a qualified
surveyor or professional engineer. The Construction Manager shall make all such records
available to the Architect and upon completion of the Project shall deliver them to the
Owner.
22. The Construction Manager shall arrange for the delivery, storage, protection and security
of Owner-purchased materials, systems and equipment that are a part of the Project until
such items are incorporated into the Project.
23. With the architect. the Construction Manager shall observe the Contractors' final testing
and start-up of utilities, operational systems and equipment.
24. When the Construction Manager considers each Contractor's Work or a designated portion
thereof substantially complete, the Construction Manager shall, jointly with the Contractor,
prepare for the Architect a list ofincomplete of unsatisfactory items and a schedute for their
completion. The Construction Manager shall assist the Architect in conducting inspections
to determine whether the Work or designated portion thereof is substantially complete.
25. The Construction Manager shall coordinate the correction and completion of the Work.
Following issuance of a Certificate of Substantial Completion of the Work or a designated
portion thereof, the Construction Manager shall evaluate the completion of the Work of the
Contractors and make recommendations to the Architect when Work is ready for final
inspection. The Construction Manager shall assist the Architect in conducting final
inspections.
26. The Construction Manager shall secure and transmit to the Architect warranties and similar
submittals required by the Contract Documents for delivery to the Owner and deliver all
keys, manuals, record drawings and maintenance stocks to the Owner. The Construction
Manager shall fonvard to the Architect a Final Project Application for Payment upon
compliance with the requirements of the Contract Documents.
27. Duties, responsibilities and Limitations of authority of the Construction Manager as set
Constroction Manager Contract Page 7
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forth in the Contract Documents shall not be restricted, modified or extended without
written consent of the Owner, Construction Manager, Architect and Contractor. Consent
shall not be unreasonably withheld.
IV. CONSTRUCTION COST
A. The Construction Cost shall be the total cost or estimated cost to the Owner of all elements of the
Project designed or specified by the Architect.
B. Evaluations of the Owner's Project budget, preliminary estimates of Construetion Cost and detailed
estimates of Construction Cost prepared by the Construction Manager represent the Construction
Manager's best judgement as a person or entity familiar with the construction industry. It is
recognized, however, that neither the Construction Manager nor the Owner has control over the cost
of labor, materials or equipment, over Contractor's methods of determining bid prices, or over
competitive bidding, market or negotiation conditions. Accordingly, the Construction Manager
cannot and docs not warrant or represent that bids or negotiated prices will not vary from the Project
budget proposed, established or approved by the Owner, or from any cost estimate or evaluation
prepared by the Construction Manager.
C. The Construction Manager shall be pennitted to include contingencies for design, bidding and price
escalation, and shall consult with the Architect to determine what materials, equipment, component
systems and types of construction are to be included in the Contract Documents, to suggest
reasonable adjustments in the scope of the Project. and to suggest inclusion of alternate bids in the
Construction Documents to adjust the Construction Cost to the fixed limit.
D. If the fixed limit of Construction Cost is exceeded by the sum of the lowest boua fide bids or
negotiated proposals plus the Construction Manager's estimate of the other elements of Construction
Cost for the Project, the Owner shall:
1. Give written approval of an increase in such fixed limit;
2. Reject all bids, or all bids for a specific element or phase of the project, and authorize
rebidding or renegotiating of the Project within a reasonable time:
3. Reduce the scope of work to be performed undcr the Project: or
4. Abandon or terminate the project in accordance with this Agreement.
E. If the Project is abandoned or terminated, and later reactivated, the Owner shall cooperate in revising
the Project scope and quality as required to reduce the Construction Cost. If the Owner chooses to
proceed, the Construction Manager, without additional charge, shall cooperate with the Owner and
Architect as necessary to bring the Construction Cost within the fixed limit.
V. OWNERSHIP AND USE OF ARCHITECT'S DRAWINGS, SPECIFICATIONS AND OTHER
DOCUMENTS
A. The Drawings, Specifications and other documents prepared by the Architect are instruments of the
Architect's service through which the Work to be executed by the Contractors is described. The
Construction Manager and Owner may retain one record set each. The Construction Manager shall
not own or claim a copyright in the Drawings, Specifications and other documents prepared by the
AIchitect, and unless otherwise indicated the Architect shall be deemed the author of them and will
retain all common law, statutory and other reserved rights. in addition to the copyright. All copies
Construction Manager Contract
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of them, except the Construction Manager's and Owner's record set, shalt be returned or suitably
accounted for to the Architect, on request at the completion of the Project. The Drawings,
Specifications and other documents prepared by the Architect, and copies thereof furnished to the
Construction Manager, are for use solely.with respect to this Project.. The Construction Manager
is granted a limited license to use and reproduce applicable portions of the Drawings, Specifications
and other documents prepared by the Architect appropriate to and for use in the perfonnance of the
Construction Manager's services under this Agreement.
B. Alt copies made under this liceuse shalt bear the statutory copyright notice, if any, shown on the
Dmwings, Specifications and other documents prepared by the Architect. Submittal or distribution
to meet officiat regutatory requirements or for other purposes in connection with this Project is not
to be constructed as publication in derogation of the Architect's copyright or other reserved rights.
VI. ALTERNATIVE DISPUTE RESOLUTION
A. Claims, disputes or other matters in question between the parties to this Agreement arising out of
or relating to this Agreement or breach thereof shalt be submitted to mediation.
B. Demand for a mediator shalt be filed in writing with the other party to this Agreement. A demand
for a mediator shall be made within a reasonable time after the claim, dispute or other matter in
question has arisen. In no event shall the demand for a mediator be made after the date when
institution oflegaJ or equitable proceedings based on such claim, dispute or other matter in question
would be barred by the applicable statutes of limitations.
C. No mediator arising out of or relating to this Agreement shalt include, by consolidation, joinder or
in any other manner, an additional person or entity not a party to this Agreement. except by written
consent containing a specific reference to this Agreement signed by the Owner, Construction
Manager, and any other person or entity sought to be joined. Consent to a mediator involving an
additional person or entity shall not constitute consent to a mediator of any claim. dispute or other
matter in question not described in the written consent or with a person or entity not named or
described therein. The foregoing agreement to a mediator and other agreements to a mediator with
an additional person or entity duly consented to by the parties to this Agreement shall be specifically
enforceable by the District Court jurisdiction thereof.
VII. TERMINATION, SUSPENSION OR ABANDONMENT
A. This Agreement may be tenninated by either party upon not less than seven days written notice
should the other party fail substantialty to perfonn in accordance with the tenns of this Agreement
through no fault of the party initiating the tennination.
B. If the Project is suspended by the Owner for more than 30 consecutive days, the Construction
Manager shall be compensated for services perfonned prior to notice of such suspension. When the
Project is resumed, the Construction Manager's compensation shall be equitably adjusted to provide
for expenses incurred in the interruption and resumption of the Construction Manager's services.
C. This Agreement may be tenninated by the Owner upon not less than seven day's written notice to
the Construction Manager in the event that the Project is pennanently abandoned. If the Project is
abandoned by the Owner for more than 90 consecutive days. the Construction Manager may
tenninate this Agreement by giving written notice.
D. Failure of the Owner to make payments to the Construction manager in accordance with this
Agreement shalt be considered substantial nonperfonnance and cause for tennination.
Construction Manager Contract
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E. If the Owner fails to make payment when due the Construction Manager for selVices and expenses.
the Construction manager may upon seven days' written notice to the Owner. suspend performance
of services under this Agreement. Unless.payment in full is received by the Construction Manager
within seven days of the date of notice, the suspension shall take effect without further notice. In the
event of a suspension of services, the Construction Manager shall have no liability to the Owner for
delay or damage caused to the Owner because of such suspension of selVices.
F. In the event of tennination not the f..ult of the Constmction Manager, the Constmction Manager
shall be compensated for selVices perfonned prior to tennination. together with Reimbursable
Expenses then due and all Tennination Expenses. Tennination Expenses are those costs directly
attributable to tennination for which the Constmction Manager is not otherwise compensated.
VIII. COMPENSA nON OF CONSTRUCTION MANAGER
A. Basic Compensation
I. For Basic SelVices, compensation shall be computed and paid as of the first day of each
montll. Basic compens..tion shall be set at Fifty Thousand Dollars and nollOO's ($50,000).
2. The Construction Manager shall be paid monthly over a twelve month period in equal
payments, retaining 10% as a payment upon satisfactory final inspection. (12 monthZv
payments of$3, 750, with $.1,000 paid upon completion).
3. Should the Project be completed prior to twelve months, then the remainder of the sum
shall be due and payable upon satisfactory final inspection.
4. Should the Project be completed later than a twelve month period. then the final payment
of 10% shall be withheld until satisfactory final inspection.
5. If at any time it is calculated by the Construction Manager that the Project is likely to be
completed later than a total of twelve months, then the Construction Manager shall have
the right to have the remainder of the sum. less the original 10%, prorated over the
remainder of the expected time for completion.
B. Reimbursable Expenses
I. Reimbursable Expenses are in addition to Basic Compensation and include expenses
incurred by the Constmction Manager and Construction Manager's employees and
consultants in the interest of the Project.
2. Reimbursable Expenses are defined as:
a.
Expenses of transportation, meals, and lodging in connection with the Project for
authorized out-{)f-town travel, long-distance communications, and fees paid for
securing approval of authorities having jurisdiction over the Project;
b.
Expenses of photographic reproduction, postage, express deliveries, electronic
facsimile transmissions, printing, photocopies, and handling of Drawings,
Specifications and other documents; and
c.
Expenses authorized in advance by the Owner.
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3.
Payments on account of the Construction Manager's Reimbursable Expenses shall be made
monthly upon presentation of the Construction Manager's statement of services rendered
or expenses incurred.
C. Accounting
t. Accounting for the Project shall be perfonned by the Owner.
2. The Construction Manager shall report all expenses, costs, estimates, bid tabulations, and
any other financial infonnation as soon as practical to the Financial Officer for the Owner.
3. The Construction Manager shall be paid as contract labor and shall be furnished by Owner
with an IRS FORM 1099 at the regular time to report compensation, as required by law.
D. No deductions shall be made from the Construction Manager's compensation on account of penalty,
liquidated damages or other sums withheld from payments to Contractors, or on account of the cost
of changes in Work other than those for which the Construction Manager has been found to be liable
by a court of competent jurisdiction.
IX. MISCELLANEOUS PROVISIONS
A. Unless otherwise provided, this Agreement shall be governed by the law of the place where the
Project is located.
B. Causes of action between the parties to this Agreement pertaining to acts or failures to act shall be
deemed to have accrued and the applicable statutes of limitations shall commence to run not later
than either the date of Substantial Completion for acts or failures to act occurring prior to Substantial
Completion, or the date of issuance of the final Project Certificate for Payment for acts or failures
to act occurring after Substantial Completion.
C. The Owner and Construction Manager waive all rights against each other and against the
Contrnctors, Architect, consultants. agents and employees of any of them. for damages, but only to
the extent covered by property insurance during construction, except such rights as they may have
to the proceeds of such insurance. The Owner and Construction Manager each shall require similar
waivers from their Contractors, Architect, consultants, agents, and persons or entities awarded
separate contracts administered under the Owner's own forces.
D. The Owner and Construction Manager, respectively, bind themselves, their partners, successors,
assigns and legal representatives to the other party to this Agreement and to the partners, successors,
assigns and legal representatives of such other party with respect to all covenants of this Agreement.
Neither Owner nor Construction Manager shall assign this Agreement without the written consent
of the other.
E. This Agreement represents the entire and integrated agreement between the Owner and Construction
Manager and supersedes all prior negotiations, representations or agreements, either written or oral.
This Agreement may be amended only by written instnunent signed by both Owner and Construction
Manager.
F. Should any part of this Agreement be held by a court of competent jurisdiction to be void for any
reason, it shall not void the entire agreement.
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G. Nothing contained in this Agreement shall create a contractnal relationship with or a cause of action
in favor of a third party against either the Owner or Construction Manager.
H. Unless otherwise provided in this Agreement, the Construction Manager and the Construction
Manager's consultants shall have no responsibility for the discovery, presence, handling, removal
or disposal of or exposnrc of persons to hazardous materials in any fonn at tile Project site, including
but not limited to asbestos, asbestos products, polychlorinated biphenyl (PCB) or other toxic
substances.
I. This Agreement shall not be construed to limit the rights and authorities of the Texas Department
of Transportation to inspect the work-in-progress both during the project development and during
actual construction, and to administer Federal Highway Administration grant funding, or any other
funding.
X. EXECUTION
This Agreement is entered into this 6 th day of
May
, t999.
OWNER:
Charles H. Neeley, Mayor
A 1TEST:
Mattie Cunningham. City Clerk
APPROVED AS TO FORM: '
Scott P. Foster, City Attorney
CONSTRUCTION MANAGER:
Joan E. Moore, President
Construction Manager Contract
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