18-PA2045 Sample Agreement.pdf

AIA

Document A141TM – 2014 Standard Form of Agreement Between Owner and Design-Builder

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The author of this document has added information needed for its completion.

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AGREEMENT made as of the ___ day of ________ in the year two thousand and twenty- ___ (the “Effective Date”).

BETWEEN the Owner:

Dallas Fort Worth International Airport PO Box Drawer 612008 DFW Airport, Texas 75261-2008 and the Design-Builder:

for the following Project:

Dallas Fort Worth International Airport Terminal F Phase 2 Ticketing, Garage, & Runways, Contract No. PA2045

The Owner and Design-Builder agree as follows.

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TABLE OF ARTICLES

1 GENERAL PROVISIONS

2 COMPENSATION AND PROGRESS PAYMENTS

3 GENERAL REQUIREMENTS OF THE WORK OF THE DESIGN-BUILD CONTRACT

4 WORK PRIOR TO EXECUTION OF THE DESIGN-BUILD AMENDMENT

5 WORK FOLLOWING EXECUTION OF THE DESIGN-BUILD AMENDMENT

6 CHANGES IN THE WORK

7 OWNER’S RESPONSIBILITIES

8 TIME

9 PAYMENT APPLICATIONS AND PROJECT COMPLETION

10 PROTECTION OF PERSONS AND PROPERTY

11 UNCOVERING AND CORRECTION OF WORK

12 COPYRIGHTS AND LICENSES

13 TERMINATION OR SUSPENSION

14 CLAIMS AND DISPUTE RESOLUTION

15 MISCELLANEOUS PROVISIONS

16 SCOPE OF THE AGREEMENT

TABLE OF EXHIBITS

A

B

C

D

E

F

G

H

I

INSURANCE PROVISIONS

SBE SPECIAL CONTRACT PROVISIONS

PAYMENT AND PERFORMANCE BONDS

CONTRACT SPECIAL PROVISIONS

CONTRACT GENERAL PROVISIONS

BIM MODEL DEVELOPMENT REQUIREMENTS (if applicable)

DESIGN CRITERIA PACKAGE

BASELINE SCHEDULE

DESIGN-BUILD AMENDMENT AIA DOCUMENT

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ARTICLE 1 GENERAL PROVISIONS

§ 1.1 Owner’s Criteria This Agreement is based on the Owner’s Criteria set forth in this Section 1.1.

(Note the disposition for the following items by inserting the requested information or a statement such as “not applicable” or “unknown at time of execution.” If the Owner intends to provide a set of design documents, and the requested information is contained in the design documents, identify the design documents and insert “see Owner’s design documents” where appropriate.)

Design Criteria Package and all addendums and supplements thereto (see Section 1.4.1.1 below).

§ 1.1.1 The Owner’s program for the Project:

(Set forth the program, identify documentation in which the program is set forth, or state the manner in which the program will be developed.)

Design Criteria Package and all addendums and supplements thereto (see Section 1.4.1.1 below).

§ 1.1.2 The Owner’s design requirements for the Project and related documentation:

(Identify below, or in an attached exhibit, the documentation that contains the Owner’s design requirements, including any performance specifications for the Project.)

Design Criteria Package and all addendums and supplements thereto.

§ 1.1.3 The Project’s physical characteristics:

(Identify or describe, if appropriate, size, location, dimensions, or other pertinent information, such as geotechnical reports; site, boundary and topographic surveys; traffic and utility studies; availability of public and private utilities and services; legal description of the site; etc.)

Design Criteria Package and all addendums and supplements thereto.

§ 1.1.4 The Owner’s anticipated Sustainable Objective for the Project, if any:

(Identify the Owner’s Sustainable Objective for the Project such as Sustainability Certification, benefit to the environment, enhancement to the health and well-being of building occupants, or improvement of energy efficiency.

If the Owner identifies a Sustainable Objective, incorporate AIA Document A141™–2014, Exhibit C, Sustainable Projects, into this Agreement to define the terms, conditions and Work related to the Owner’s Sustainable Objective.)

Design Criteria Package and all addendums and supplements thereto; see also DFW Green Building Standards.

§ 1.1.5 Incentive programs the Owner intends to pursue for the Project, including those related to the Sustainable Objective, and any deadlines for receiving the incentives that are dependent on, or related to, the Design-Builder’s services, are as follows:

(Identify incentive programs the Owner intends to pursue for the Project and deadlines for submitting or applying for the incentive programs.)

None

§ 1.1.6 The Owner’s budget for the Work to be provided by the Design-Builder is set forth below:

(Provide total for Owner’s budget, and if known, a line item breakdown of costs.)

$______________ (Not to Exceed Budget), which is inclusive of all estimated costs, allowances (but not the Owner’s Allowance), contingencies (including the Design-Builder’s Contingency), the Design-Builder’s Fee, and all other items that comprise the Contract Sum, and costs and/or payments for Work performed before and after execution of the Design-Build Amendment (collectively, the “Owner’s Budget” or the “Project Budget”). The Owner’s Budget is subject to Board authorization.

Category Amount Owner’s Budget $ ______________

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Owner’s Allowance $ ______________ Total Contract Amount $ ______________

§ 1.1.7 The Owner’s design and construction milestone dates and dates from the Effective Date:

.1 __% Design Phase milestone:

___ calendar days from the Effective Date, which is TBD subject to OBA or the date(s) set forth in an amendment issued by the Owner, whichever day is earlier.

.2 Submission of Design-Builder’s Proposal:

___ calendar days from the Effective Date, which is TBD subject to OBA approval or the date(s) set forth in an amendment issued by the Owner, whichever day is earlier.

.3 Owner response to Design-Builder Proposal:

___ calendar days from the Effective Date, which is TBD, subject to OBA approval.

.4 Design-Build Amendment:

___ calendar days from the Effective Date, which is TBD, subject to OBA approval.

.5 Phased Completion Dates:

_______________: ___ calendar days from the Effective Date, which is TBD subject to OBA approval.

_______________: ___ calendar days from the Effective Date, which is TBD subject to OBA approval.

.6 Substantial Completion dates:

_______________: ___ calendar days from the Effective Date.

_______________: ___ calendar days from the Effective Date.

The Work: ____ calendar days from the Effective Date.

.7 Other milestone dates:

NEPA Data Gathering Completion: TBD (if applicable) Final Completion: ____ calendar days from the Effective Date.

Refer to Exhibit H, Baseline Schedule.

§ 1.1.8 The Design-Builder shall retain the following Architect, Consultants and Contractors at the Design-Builder’s cost:

.1 Architect Company Name

Address City, State Zip

.2 Consultants

.3 Contractors

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§ 1.1.9 Additional Owner’s Criteria upon which the Agreement is based:

(Identify special characteristics or needs of the Project not identified elsewhere, such as historic preservation requirements.)

None.

§ 1.1.10 The Design-Builder shall confirm that the information included in the Owner’s Criteria complies with applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities.

§ 1.1.10.1 If the Owner’s Criteria conflicts with applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, the Design-Builder shall notify the Owner of the conflict.

§ 1.1.11 If there is a change in the Owner’s Criteria, the Owner and the Design-Builder shall execute a Modification in accordance with Article 6 except as otherwise provided in this Agreement.

§ 1.2 Project Team § 1.2.1 The Owner identifies the following representative in accordance with Section 7.1.1:

_____________________ [e.g., Design, Code, & Construction Vice-President and Assistant Vice-President], and other persons or entities designated by the Owner from time to time in its sole discretion.

§ 1.2.2 The persons or entities, in addition to the Owner’s representative, who are required to review the Design- Builder’s Submittals are as follows:

(List name, address and other information.)

Designee to be provided at a later date, whom Owner may change from time to time in its sole discretion.

§ 1.2.3 The Owner will retain the following consultants and separate contractors:

(List discipline, scope of work, and, if known, identify by name and address.)

To be determined by the Owner in its sole discretion.

§ 1.2.4 The Design-Builder identifies the following representative in accordance with Section 3.1.2:

(List name, address, and other information.)

§ 1.2.5 The Design-Builder’s representative shall not be changed without the Owner’s prior written consent.

§ 1.3 Binding Dispute Resolution For any Claim subject to, but not resolved by, mediation pursuant to Section 14.3, the method of binding dispute resolution shall be the following:

[ X ] Litigation in a court of competent jurisdiction

§ 1.3.1 Cooperation. The Design-Builder agrees to make any person involved in providing Work available to the Owner for fact or expert testimony or other similar litigation support in the event the Owner is involved in litigation or anticipates being involved in litigation concerning the Work.

§ 1.3.2 Litigation Costs § 1.3.2.1 Should it be necessary for the Owner to enforce its rights or remedies, including its rights provided in the Contract Documents, the Owner shall be entitled to recovery of its reasonable and necessary attorneys’/paralegals’

AIA Document A141™ – 2014. Copyright © 2004 and 2014 by The American Institute of Architects. All rights reserved. WARNING: This AIA®

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This draft was produced by AIA software at 10:40:09 ET on 04/08/2020 under Order No.3446145716 which expires on 11/17/2020, and is not for fees and all related fees, costs, and expenses. Without limiting the foregoing, the Owner shall also be entitled to its fees, costs, and expenses (a) if it is awarded a final enforceable judgment in its favor on at least seventy-five percent (75%) of its pleaded damages, or (b) if the Owner is a defendant and it prevails in the defense of the Party plaintiff’s claims, even if the Owner does not assert a counterclaim. IN THE EVENT OF LITIGATION, ANY AWARD OF

FEES, COSTS AND EXPENSES SHALL BE DETERMINED BY THE JUDGE, NOT A JURY; THIS

CONSTITUTES A JURY WAIVER.

§ 1.3.2.2 Litigation fees recoverable by the Owner include those incurred by any in-house counsel/paralegals and/or outside counsel/paralegals it uses. If the Owner is represented by in-house counsel, fees will be set at: (a) $400/hour for attorneys who have been licensed and actively practicing 10 or more years; (b) $300/hour for attorneys who have been licensed and actively practicing for less than 10 years; and (c) recoverable fees for in-house paralegals will be $150/hour. Fees attributable to each attorney and paralegal will be calculated using the computed hourly billing rate times the number of hours worked on the litigation. If the Owner uses outside counsel/paralegals for the litigation, fees will be calculated at the billing rates of the firm's attorneys/paralegals participating in the litigation, times the number of hours worked. The Owner may recover fees associated with in-house counsel/paralegals and outside counsel/paralegals even if both types of counsel are used in any litigation.

§ 1.4 Definitions § 1.4.1 Design-Build Documents. The Design-Build Documents consist of this Agreement between Owner and Design-Builder and its attached Exhibits (hereinafter, the “Agreement”), other documents listed in this Agreement (for example, the Contract Provisions, the Design Criteria Package and all addendums and supplements thereto, Instruments of Service, drawings, and specifications), and Modifications issued after execution of this Agreement. A Modification is (1) a written amendment to the Contract signed by both parties, including the Design-Build Amendment, (2) a Change Order, or (3) a Change Directive. The Design-Build Documents are complementary, and what is required by one shall be as binding as if required by all. For example, any provision contained in specifications that is not in the drawings (or vice versa) shall be construed as being in both. If there is any inconsistency in the Design-Build Documents, the Design-Builder shall provide the better quality of and/or the correct quantity of the work or materials at issue, and such shall be the standard of workmanship and materials throughout corresponding parts of the Work in a manner that is satisfactory to Owner. If any Work to be performed is not specifically included in the Design-Build Documents but is reasonably necessary or inferable to accomplish the purpose of this Contract or is reasonably necessary so that the Work, when completed, will be fit and sufficient for the purpose(s) of the Project in accordance with the intent of the Owner’s Criteria, then it will be deemed to be included in the Work to the same extent as if specifically described in the Design-Build Documents.

§ 1.4.1.1 Order of Precedence. Notwithstanding any provision herein to the contrary (including General Provision 50-3, which is specifically superseded by this section), conflicts, inconsistency, or ambiguity in the application or interpretation of any parts of the Design-Build Documents shall be interpreted in accordance with the following order of precedence (the first listed being the highest precedence); however, documents shall be construed to be consistent and harmonized to the greatest extent feasible with resort to order of precedence only in the case of clear express conflict:

.1 Applicable Laws and Regulations, .2 Permits, .3 Properly Executed Change Orders and Change Directives, .4 Design-Build Contract Amendment(s)

.5 Other amendments (which are not the Design-Build Amendment), .6 this Agreement, .7 SBE Special Contract Provisions, .8 Contract Special Provisions

.9 Contract General Provisions, .10 Design Criteria Package and all addendums and supplements thereto, including:

Appendix Exhibits for Contract

A Site Area Map

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B Terminal C Preliminary Guide C Terminal A Preliminary Guide D Site Plan (Fabrication Yard) E Site Area Map (Fabrication Yard) F PMO Building Layout G Terminal C Preliminary Asbestos Survey

H1-H8 Site Videos for Existing Conditions Terminal C I1-I2 Site Videos for Existing Conditions Terminal A

J Restroom Design Guidelines K DFW DFI Standards Manual 2020 Release L Sustainability Design Strategy M Design Criteria Package Pier C N Design Criteria Package Pier A O Design Criteria Package for Terminal C Renovation P NEPA Checklist Q Green Building Standards R Design Criteria Manual S Division 1 Specification T RFQ Documents U Terminal C Interior ACM Survey Final

V 10% Design Revision 08312021

W PMO Design Criteria Package (PIO)

.10 Other Design-Build Documents, if any.

Where compliance with two (2) or more reference standards are specified and reference standards establish different or conflicting requirements for minimum quantities or quality levels, the more restrictive/most stringent interpretation shall govern. Design-Builder shall refer uncertainties and requirements that are different but apparently equal to Owner for decision before proceeding. In case of a conflict within a part of the Design-Build Documents or other documents or laws, the provision with the more restrictive/most stringent interpretation shall govern. All interpretations or clarification of this Agreement, including any conflicts, discrepancies, errors, or omissions involving this Agreement and any Design-Build Documents or any other documents, shall be resolved by the Owner in its sole discretion. If the Design-Builder disputes the Owner’s determination, the Design-Builder may proceed as provided in Article 14. For the avoidance of doubt, in the event of a conflict, inconsistency, or ambiguity in the interpretation or application of the Sections in this Agreement and the General Provisions, the Sections in this Agreement shall control and govern.

§ 1.4.2 The Contract. The Design-Build Documents form the Contract. The Contract represents the entire and integrated agreement between the Parties and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a Modification. The Design-Build Documents shall not be construed to create a contractual relationship of any kind between any persons or entities other than the Owner and the Design-Builder, except that the Owner may assert the Design-Builder’s rights against third-parties with whom the Design-Builder contracts for the Project.

§ 1.4.3 The Work. The term “Work” means the design, construction and related services required or reasonably inferred as necessary to fulfill the Design-Builder’s obligations under the Design-Build Documents, whether completed or partially completed and whether performed before or after execution of the Design-Build Amendment, and includes all labor, materials, equipment, supplies, apparatus, appliances, fixtures, tools, implements, supervision, transportation, utilities, storage, and services provided or to be provided by the Design-Builder. The Work may constitute the whole or a part of the Project.

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§ 1.4.4 The Project. The Project is known as the _____________________ [e.g., Central Terminal Area Expansion Program], the total design and construction of which the Work performed under the Design-Build Documents may be the whole or a part, and may include design and construction by the Owner and by separate contractors.

§ 1.4.5 Instruments of Service. Instruments of Service are representations, in any medium of expression now known or later developed, of the tangible and intangible creative work performed by the Design-Builder, Contractor(s), Architect, and Consultant(s) under their respective agreements. Instruments of Service may include, without limitation, studies, surveys, models, sketches, drawings, specifications, digital models and other similar materials.

§ 1.4.6 Submittal. A Submittal is any submission to the Owner for review and approval demonstrating how the Design-Builder proposes to conform to the Design-Build Documents for those portions of the Work for which the Design-Build Documents require Submittals. Submittals include, but are not limited to, shop drawings, product data, and samples. Submittals are not Design-Build Documents unless incorporated into a Modification.

§ 1.4.7 Owner. The Owner is the person or entity identified as such in the Agreement and is referred to throughout the Design-Build Documents as if singular in number. The term “Owner” means the Owner or the Owner’s authorized representative. The Owner is a governmental entity under Texas law and must follow applicable laws to take certain actions, including actions that are contractually binding, modify the Contract, modify the Work, increase/decrease the Contract Sum, or alter any other terms of the transaction embodied within the Contract.

Accordingly, the Owner’s authorized representative(s) may not be authorized to modify the Contract without the Dallas/Fort Worth International Airport Board’s legislative approval. The Design-Builder is deemed to understand all legal limitations on those individuals representing the Owner under this Agreement.

§ 1.4.8 Design-Builder. The Design-Builder is the person or entity identified as such in the Agreement and is referred to throughout the Design-Build Documents as if singular in number. The term “Design-Builder” means the Design- Builder or the Design-Builder’s authorized representative.

§ 1.4.9 Consultant. A Consultant is a person or entity providing professional services for the Design-Builder for all or a portion of the Work, and is referred to throughout the Design-Build Documents as if singular in number. To the extent required by the relevant jurisdiction, the Consultant shall be lawfully licensed to provide the required professional services and its performance of its obligations shall be consistent with the standard of care applicable to its profession. In selecting a person or entity to provide professional services for the Design-Builder, the Design- Builder shall not do so on the basis of competitive bids but shall make such selection on the basis of demonstrated competence and qualifications to perform the services in the manner provided by § 2254.004 of the Texas Government Code and shall so certify to the Owner.

§ 1.4.10 Architect. The Architect is a person or entity providing design services for the Design-Builder for all or a portion of the Work, and is lawfully licensed to practice architecture in the applicable jurisdiction. The Architect is referred to throughout the Design-Build Documents as if singular in number. The Architect shall, in accordance with Texas Local Government Code section 271.904(d), perform its services: (1) with the professional skill and care ordinarily provided by competent architects practicing under the same or similar circumstances and professional license; and (2) as expeditiously as is prudent considering the ordinary professional skill and care of a competent architect. In accordance with Texas Local Government Code section 271.904(e), a provision establishing a different standard of care than a standard described in Texas Local Government Code section 271.904(d) is void and unenforceable, except that, for the avoidance of doubt and consistent with Texas Local Government Code section 271.904(g), the foregoing does not apply to conditions that relate to the Architect’s scope, fees, and schedule.

§ 1.4.11 Contractor. A Contractor is a person or entity performing all or a portion of the construction, required in connection with the Work, for the Design-Builder. The Contractor shall be authorized to do business in the state where the Project is located and shall be lawfully licensed, if required in the jurisdiction where the Project is located.

The Contractor is referred to throughout the Design-Build Documents as if singular in number and means a Contractor or an authorized representative of the Contractor.

§ 1.4.12 Confidential Information. Confidential Information is defined in Section 15.6.

§ 1.4.13 Contract Time. Unless otherwise provided, Contract Time is the period of time, including authorized adjustments, as set forth in the Design-Build Amendment or one or more amendments (which are not the Design- Build Amendment), as may be applicable, for Substantial Completion of the Work.

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§ 1.4.14 Day. The term “day” as used in the Design-Build Documents shall mean calendar day unless otherwise specifically defined.

§ 1.4.15 Contract Sum. The Contract Sum is the amount to be paid to the Design-Builder for performance of the Work after execution of the Design-Build Amendment, as identified in Article A.1 of the Design-Build Amendment.

§ 1.4.16 Owner’s Allowance. The Owner’s Allowance is a sum of money set aside for the exclusive use of the Owner for costs related to the Project that the Owner solely determines should be paid using the Owner’s Allowance. The use of the Owner’s Allowance is entirely within Owner’s discretion, is intended to be used for the Owner’s changes to the Project’s scope, escalation, acceleration of the Work, or other action required by the Owner, and, accordingly, is not intended to pay costs for which the Design-Builder is responsible, e.g., Cost of the Work or the Design-Builder’s Contingency. The Owner may establish one or more Owner Allowances for the Project and may include them in any Design-Build Document it deems appropriate. Where the Owner Allowance is shown in the Design-Build Amendment, it will not be part of the Stipulated Sum (which shall be a guaranteed maximum price), the Cost of the Work, or the Guaranteed Maximum Price.

§ 1.4.17 Design-Builder’s Contingency. The Design-Builder’s Contingency:

.1 is an amount included in the Contract Sum that is not allocated to any item of the Cost of the Work that is established for the Design-Builder’s use and may be required: (a) for costs incurred in the Work from unforeseen causes or details that should have been anticipated by the Design-Builder at the time of Owner’s approval of the Contract Sum, or (b) to cover any excess of the amount bid by a Subconsultant/Subcontractor over the amount for that Work in the Contract Sum;

.2 shall be provided by the Design-Builder and shall be included in the Design-Build Amendment;

.3 is specifically intended to cover contingencies that may arise because of a Contract Sum provided by Design-Builder and accepted by Owner when the Design-Build Documents for the applicable Work were not at 100% or address other potential contingencies described in this Section 1.4.16 even when the Contract Sum was based on 100% Construction Documents;

.4 is intended to fund increases in the Cost of the Work (and no other elements of compensation under the Design-Build Documents) identified through the refinement, development and completion of the applicable Construction Documents or procurement of the applicable Work;

.5 will be negotiated between the parties and must reflect the risk inherent in the state of completion of the applicable Construction Documents at the time the Design-Builder’s Proposal is submitted;

.6 is specifically not to be used for Design-Builder/Architect/Consultant/Contractor rework, cost increases caused by lack of coordination or communication with the Owner, to correct errors or omissions in the Design-Build Documents, any breach or failure to perform by Design- Builder/Architect/Consultant/Contractor, or similar matters;

.7 shall not exceed, in the aggregate, the total of the Design-Builder’s Contingency component of the Contract Sum.

The Design-Builder must maintain detailed documentation concerning its use of contingency monies and must track that use accordingly to line items in the Cost of the Work to which contingency monies were transferred. The Owner may, at any time, request access to the Design-Builder’s contingency file/records to determine if the Design-Builder has been using contingency monies appropriately under the Design-Build Documents. If the Owner determines that contingency monies have been misused, it will be entitled to deduct them from future progress payments, redeposit them into the applicable contingency or transfer them to any Owner Allowance.

ARTICLE 2 COMPENSATION AND PROGRESS PAYMENTS

§ 2.1 Compensation for Work Performed Prior To Execution of Design-Build Amendment § 2.1.1 Unless otherwise agreed, payments for Work performed prior to execution of the Design-Build Amendment shall be made monthly. With each payment application, the Design-Builder must submit two pay requests for the invoice period, one for design services and one for construction services. Additional Payment requirements can be found in Exhibit B, Small Business Enterprise (SBE) Special Contract Provisions. For the Design-Builder’s performance of Work prior to the execution of the Design-Build Amendment, the Owner shall compensate the Design-Builder as follows:

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The limit on the total amount of compensation for Work performed prior to the execution of the Design-Build Amendment shall be $_____________, which shall be performed and paid in accordance with the Design-Build Documents and one or more amendments (which are not the Design-Build Amendment) issued by the Owner.

Any costs that would cause this limit to be exceeded shall be solely borne and paid by the Design-Builder without reimbursement by the Owner unless otherwise adjusted by mutual written agreement by Owner and Design-Builder.

It is agreed and understood that all costs for Work performed prior to execution of the Design-Build Amendment, including the Design Builder’s and Design Builder’s Architect compensation as described above, are included as part of the Owner’s Budget.

§ 2.1.1.1 The hourly billing rates for services of the Design-Builder and the Design-Builder’s Architect, Consultants, and Contractors, if any are set forth below.

Individual or Position Rate ($0.00) See Exhibit __ See Exhibit __

§ 2.1.2 Unless a shorter time period is provided for in this Agreement, the Design-Builder shall pay all Contractors, Consultants, and similar persons no later than the period provided by the Texas Prompt Pay Act (Texas Government Code Chapter 2251).

§ 2.1.3 Reserved

§ 2.1.4 Payments to the Design-Builder Prior To Execution of Design-Build Amendment § 2.1.4.1 Payments for undisputed amounts are due and payable within forty-five (45) days of the Owner’s receipt of the Design-Builder’s invoice that is submitted in accordance with the Contract and any other written instructions given to Design-Builder by Owner prior to submission of such invoice. Amounts unpaid forty-six (46) days after the Owner’s receipt of the invoice shall bear interest at the rate set forth in Texas Government Code § 2251.025. With each payment application, the Design-Builder must submit two pay requests for the invoice period, one for design services and one for construction services/work. Additional Payment requirements can be found in Exhibit B, Small Business Enterprise (SBE) Special Contract Provisions.

§ 2.1.4.2 Records of Reimbursable Expenses and services performed on the basis of hourly rates shall be available to the Owner on request for a period of four years following the date of final payment by the Owner to the Design- Builder.

§ 2.2 Contract Sum and Payment for Work Performed After Execution of Design-Build Amendment For the Design-Builder’s proper performance of the Work in accordance with the Contract after execution of the Design-Build Amendment and/or one or more amendments (which are not the Design-Build Amendment), the Owner shall pay to the Design-Builder the Contract Sum in current funds as agreed in the Design-Build Amendment and/or one or more amendments (which are not the Design-Build Amendment).

§ 2.3 Overhead and Profit Overhead rates for design services shall not exceed a maximum of 115% of labor costs for field office staff and 140% of labor costs for home office staff. Profit rates for design services shall not exceed a maximum of 8.5% for field office staff and 10% for home office staff. All rates (overhead and profit) shall be based on the Owner’s current schedule of positions and maximum hourly rates for each position. Design-Builder must itemize labor rates, hours worked, other direct costs and indirect costs, and shall provide documentation of hours worked and any eligible costs claimed. All charges are subject to audit and adjustment to actual rates incurred.

ARTICLE 3 GENERAL REQUIREMENTS OF THE WORK OF THE DESIGN-BUILD CONTRACT

§ 3.1 General § 3.1.1 The Design-Builder shall comply with any applicable licensing requirements in the jurisdiction where the Project is located.

§ 3.1.2 The Design-Builder shall designate in writing a representative who is authorized to act on the Design- Builder’s behalf with respect to the Project.

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§ 3.1.2.1 Quality Management. The Design-Builder shall employ a full time Supervisor of Quality Management. The Owner may require that this function shall have no other responsibility than Quality Management. Personnel assigned to this task must be experienced and reliable. The Design-Builder shall provide the Owner with a description of the proposed qualification of the proposed Supervisor of Quality Management.

§ 3.1.2.2 The Design-Builder shall hold a pre-construction meeting with all subcontractors and major suppliers to discuss Quality Management.

§ 3.1.2.3 The Supervisor of Quality Management shall be responsible to ensure that the Work conforms to the Design-Build Documents. Included in, but not limited to, a list of items to be checked are: form work, reinforcing steel and anchor bolt placement, concrete mix and strength, structural steel connections and alignment, piping installation and testing, electrical installation and testing, surface preparation for painting and operating access to filters and valves.

§ 3.1.2.4 The Supervisor of Quality Management shall be responsible for reviewing all submittal data prior to transmittal to the Owner to determine that items submitted are those specified, that dimensions and tolerances are correct, and that submittals are complete in all required details. This function shall also assure that data is submitted on a timely schedule.

§ 3.1.2.5 It will be the responsibility of the Supervisor of Quality Management to assure that materials related to the Work are stored in an orderly manner, that all material requiring weather protection is properly protected, and that adequate trash and scrap containers related to the Work are provided and serviced.

§ 3.1.3 The Design-Builder shall perform the Work in accordance with the Design-Build Documents. The Design- Builder shall not be relieved of the obligation to perform the Work in accordance with the Design-Build Documents by the activities, tests, inspections or approvals of the Owner.

§ 3.1.3.1 The Design-Builder shall perform the Work in compliance with applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, including, without limitation, the Americans with Disabilities Act, the Texas Elimination of Architectural Barriers Act and any applicable environmental, safety and health laws. If the Design-Builder performs Work contrary to applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities, the Design-Builder shall assume responsibility for such Work and shall bear the costs attributable to correction. Notwithstanding anything herein to the contrary, wherever references are made in the Contract to standards or codes in accordance with which the Work is to be performed, the edition or revision of the standards or codes current on the date of the performance of the Work will apply. In case of conflict between any referenced standards and codes and any Design-Build Documents or in case of conflict between any part of the Design-Build Documents, the more stringent provision(s) will take precedence.

§ 3.1.3.2 Neither the Design-Builder nor any Contractor, Consultant, or Architect shall be obligated to perform any act which they believe will violate any applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities. If the Design-Builder determines that implementation of any instruction received from the Owner, including those in the Owner’s Criteria, would cause a violation of any applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, the Design-Builder shall notify the Owner in writing. Upon verification by the Owner that a change to the Owner’s Criteria is required to remedy the violation, the Owner and the Design-Builder shall execute a Modification in accordance with Article 6.

§ 3.1.4 The Design-Builder shall be responsible to the Owner for acts and omissions of the Design-Builder’s employees, Architect, Consultants, Contractors, and their agents and employees, other persons and entities with whom the Design-Builder has contracted in connection with the Project, and other persons or entities performing portions of the Work.

§ 3.1.5 General Consultation. The Design-Builder shall schedule and conduct periodic meetings on a regular basis with the Owner and also will provide/present an executive briefing to the Owner in writing no less than every three

(3) months to review matters such as procedures, progress, coordination, and scheduling of the Work in the most expeditious and economical manner. The Design-Builder shall keep meeting minutes for each meeting and distribute the minutes to all attendees and the Owner. The Owner’s representatives will be entitled to attend all Project meetings. The Design-Builder must advise the Owner of any such meeting, giving each at least one (1) weeks’

AIA Document A141™ – 2014. Copyright © 2004 and 2014 by The American Institute of Architects. All rights reserved. WARNING: This AIA®

Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.

This draft was produced by AIA software at 10:40:09 ET on 04/08/2020 under Order No.3446145716 which expires on 11/17/2020, and is not for notice, unless such meeting is to be held in less than one week, which will require reasonable advance notice to the Owner so as not to delay the Project. The meetings will be used to, among other things: (a) review the Work progress, discuss problems and their solutions, and coordinate future Work with all the Design-Builder personnel,

(b) implement procedures and assure timely submittals, expedite processing approvals and return of shop drawings, samples and information, (c) coordinate and expedite critical ordering, including delivery of materials, Work sequences, inspection and testing, labor allocation, punch-list items and closeout, (d) review and implement revisions to the schedules, (e) monitor and promote safety requirements, (f) pre-plan Work, enforce schedules and establish procedures, responsibilities and lines of authority, (g) identify persons responsible for follow-up on any problems, delays or questions and recording courses for solution, (h) revisit any pending item at each subsequent meeting until resolution is achieved, (i) identify problems or delaying events currently existing or anticipated, and (j) conduct any other activity necessary for the Project.

§ 3.1.6 When applicable law requires that services be performed by licensed professionals, the Design-Builder shall provide those services through qualified, licensed professionals.

§ 3.1.7 The Design-Builder, with the assistance of the Owner, shall prepare and file documents required to obtain necessary approvals of governmental authorities having jurisdiction over the Project.

§ 3.1.8 Progress Reports § 3.1.8.1 The Design-Builder shall keep the Owner informed of the progress and quality of the Work. On a monthly basis, or otherwise as agreed to by the Owner and Design-Builder, the Design-Builder shall submit written progress reports to the Owner, showing estimated percentages of completion and other information identified below:

.1 Work completed for the period;

.2 Project schedule status;

.3 Submittal schedule and status report, including a summary of outstanding Submittals;

.4 Responses to requests for information to be provided by the Owner;

.5 Approved Change Orders and Change Directives;

.6 Pending Change Order and Change Directive status reports;

.7 Tests and inspection reports;

.8 Status report of Work rejected by the Owner;

.9 Status of Claims previously submitted in accordance with Article 14;

.10 Cumulative total of the Cost of the Work to date including the Design-Builder’s compensation and Reimbursable Expenses, if any;

.11 Current Project cash-flow and forecast reports; and

.12 Additional information as agreed to by the Owner and Design-Builder.

§ 3.1.8.2 In addition, where the Contract Sum is the Cost of the Work with or without a Guaranteed Maximum Price, the Design-Builder shall include the following additional information in its progress reports:

.1 Design-Builder’s work force report;

.2 Equipment utilization report; and

.3 Cost summary, comparing actual costs to updated cost estimates.

§ 3.1.9 Design-Builder’s Schedules § 3.1.9.1 The Design-Builder, no later than 15 days after execution of this Agreement, shall prepare and submit for the Owner’s information a Level 3 schedule, cost loaded with cash curves and earned values for the Work, and, no later than 35% Design Phase milestone, Design-Builder shall prepare and submit for the Owner’s information a Level 5 resource loaded schedule. The schedule, including the time required for design and construction, shall not exceed time limits current under the Design-Build Documents, shall be revised at appropriate intervals as required by the conditions of the Work and Project (but at least bi-weekly), shall be related to the entire Project to the extent required by the Design-Build Documents, shall provide for expeditious and practicable execution of the Work, and shall include allowances for periods of time required for the Owner’s review and for approval of submissions by authorities having jurisdiction over the Project. A two-week schedule shall be used to coordinate the work of all contractors at the Project site and shall contain the tasks for the current week and the next week and shall be updated weekly.

§ 3.1.9.2 The Design-Builder shall perform the Work in general accordance with the most recent schedules submitted to the Owner.

AIA Document A141™ – 2014. Copyright © 2004 and 2014 by The American Institute of Architects. All rights reserved. WARNING: This AIA®

Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA® Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.

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§ 3.1.10 Certifications. Upon the Owner’s written request, the Design-Builder shall obtain from the Architect, Consultants, and Contractors, and furnish to the Owner, certifications with respect to the documents and services provided by the Architect, Consultants, and Contractors (a) that the documents or services to which the certifications relate (i) are consistent with the Design-Build Documents, except to the extent specifically identified in the certificate, and (ii) comply with applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities governing the design of the Project; and (b) that the Owner and its consultants shall be entitled to rely upon the accuracy of the representations and statements contained in the certifications. The Design-Builder’s Architect, Consultants, and Contractors shall not be required to execute certificates or consents that would require knowledge, services or responsibilities beyond the scope of their services.

§ 3.1.11 Design-Builder’s Submittals § 3.1.11.1 Prior to submission of any Submittals, the Design-Builder shall prepare a Submittal schedule, and shall submit the schedule for the Owner’s approval. The Owner’s approval shall not unreasonably be delayed or withheld.

The Submittal schedule shall (1) be coordinated with the Design-Builder’s schedule provided in Section 3.1.9.1,

(2) allow the Owner reasonable time to review Submittals, and (3) be periodically updated to reflect the progress of the Work. If the Design-Builder fails to submit a Submittal schedule, the Design-Builder shall not be entitled to any increase in Contract Sum or extension of Contract Time based on the time required for review of Submittals. The Design-Builder shall provide Submittals with reasonable promptness and in such sequence so as to cause no delay in the Work or the activities of the Owner or separate contractors.

§ 3.1.11.2 By providing Submittals the Design-Builder represents to the Owner that it has (1) reviewed and approved them, (2) determined and verified materials, field measurements and field construction criteria related thereto, or will do so and (3) checked and coordinated the information contained within such Submittals with the requirements of the Work and of the Design-Build Documents.

§ 3.1.11.3 The Design-Builder shall perform no portion of the Work for which the Design-Build Documents require Submittals until the Owner has approved the respective Submittal.

§ 3.1.11.4 The Work shall be in accordance with approved Submittals except that the Design-Builder shall not be relieved…