8-01 Appendix 1 - UT PDC-CMR Agreement Template-090125.docx

AGREEMENT

BETWEEN OWNER AND CONSTRUCTION MANAGER-AT-RISK

Revised September 1, 2025

This Agreement is made as of , 20____ (the “Effective Date”), by and between

The Owner: The University of Texas at Austin

The Board of Regents of The University of Texas System

and

Construction Manager:

Texas Tax Account No.:

for the

Project:

Project Number:

Contract Number:

UGC Version: 20____

Project Architect:

Owner Controlled Insurance Program (OCIP): Yes / No

Owner Provided Builder’s Risk Insurance: Yes / No

Building Information Modeling: (optional DELETE language if not applicable to project) This project utilizes the BIM process for generating and managing building data. Refer to Exhibit K for special requirements.

The Owner and the Construction Manager agree as follows:

TABLE OF CONTENTS

[Type here]

Rev 7/14/2025 ems/9/1/2025 UT Austin

ARTICLE

5.1 General Coordination

5.2 Constructability Program

5.3 Scheduling

5.4 Budget and Cost Consultation

5.5 Coordination of Design and Construction Contract Documents

5.6 Construction Planning and Bid Package Strategy

5.7 Obtaining Bids/Proposals for the Work

5.8 Safety

12.1 General Requirements

12.2 Pre-Construction Phase Payments

12.3 Construction Phase Payments

13 DIRECT CONSTRUCTION COST

13.1 General Conditions Cost

13.2 Cost of the Work

13.3 Construction Manager’s Contingency

SUSPENSION

ARTICLE

24.1 Construction Cost Limitation

24.2 Pre-Construction Phase Fee

24.3 Construction Phase Fee

24.4 Limitation on General Condition Costs

25 OTHER TERMS AND CONDITIONS

25.1 Time of Completion

25.2 Liquidated Damages

25.3 Estimated Construction Cost Reports

25.4 Notices

25.5 Party Representatives

25.6 Construction Document Sets

25.7 OCIP Insured Project

25.8 Owner Provided Builder’s Risk Insurance Program

25.9 Interim As Built Drawing and Specifications (Optional)

25.10 As Built Telecom Drawings and Telecom Port Log (Optional)

25.11 LEED Certification (Optional)

25.12 Reserved

25.13 List of Exhibits

ARTICLE 1 SCOPE OF WORK

The Construction Manager has overall responsibility for and shall provide complete Pre-Construction Phase and Construction Phase Services and furnish all materials, equipment, tools, and labor as necessary or reasonably inferable to complete the Work, or any phase of the Work, in accordance with the Owner’s requirements and the terms of the Contract Documents.

ARTICLE 2 CONTRACT DOCUMENTS

2.1 The Contract Documents consist of:

a. This Agreement and all exhibits and attachments listed, contained, or referenced in this Agreement.

b. The Uniform General Conditions for The University of Texas System Building Construction Contracts (UGC).

c. Special Conditions and Owner’s Specifications.

d. All Addenda issued prior to the Effective Date of this Agreement.

e. The Guaranteed Maximum Price Proposal when accepted by the Owner and executed by the parties.

f. All Change Orders issued after the Effective Date of this Agreement.

g. The Drawings, Specifications, details, and other documents developed by Project Architect to describe the Project and accepted by Owner.

h. The Drawings and Specifications developed or prepared by Owner’s other consultants, if any, and accepted by the Owner; and

2.2 The Contract Documents form the entire and integrated Contract between Owner and Construction Manager and supersede all prior negotiations, representations, or agreements, written or oral.

2.3 The term “Construction Manager” shall be interchangeable with the terms “Contractor” and “General Contractor” or other similar terms as appropriate in the Contract Documents.

ARTICLE 3 DEFINITIONS

The terms, words and phrases used in the Contract Documents shall have the meanings given in the Uniform General Conditions for University of Texas System Building Construction Contracts and as follows.

3.1 “Construction Cost Limitation” (CCL) means the maximum monetary amount payable to the Construction Manager for all Construction Phase services, materials, labor and other work required for completion of the Work in accordance with the Contract Documents. The CCL includes, without limitation, the General Conditions Costs, the Cost of the Work, the Construction Phase Fee and the Construction Manager’s Contingency. The CCL may be adjusted by the parties for changes in the scope of the Project before or after acceptance of the Guaranteed Maximum Price Proposal. The CCL does not include the Construction Manager’s Pre-Construction Phase Fee, or Owner’s Construction Contingency or Owner’s Special Cash Allowance.

3.2 “Construction Documents” means, collectively, the UGCs, Owner’s Special Conditions and Specifications, the Drawings, Specifications, details, Change Orders, and other documents prepared by the Project Architect, its consultants and by the Owner’s other consultants that describe the scope and quality of the Project and the materials, supplies, equipment, systems, and other elements that are required for construction of the Project that are accepted by the Owner.

3.3 “Construction Phase Services” means the coordination, implementation and execution of the Work required by the Contract Documents.

3.4 “Contract Sum” means the total amount of all compensation payable to the Construction Manager for the Project and shall not exceed the sum of the Pre-Construction Phase Fee amount plus the Guaranteed Maximum Price Proposal amount accepted by the parties, subject to adjustment for Additional Services or Change Orders. Any costs that exceed the Contract Sum shall be borne solely by Construction Manager without reimbursement by Owner.

3.5 “Direct Construction Cost” means the sum of the amounts that the Construction Manager actually and necessarily incurs for General Conditions Costs, Cost of the Work and Construction Manager’s Contingency during the Construction Phase as allowed by this Agreement. Direct Construction Cost does not include Pre-Construction Phase Fees or Construction Phase Fees.

3.6 “Estimated Construction Cost” (ECC) means the amount calculated by the Construction Manager for the total cost of all elements of the Work based on the Contract Documents available at the time(s) that the EEC is prepared. The ECC shall be based on current market rates with reasonable allowance for overhead, profit and price escalation and shall include and consider, without limitation, all alternates, allowances, and contingencies, designed and specified by the Project Architect and the cost of labor and materials necessary for installation of Owner furnished equipment. The ECC shall not include Construction Manager’s Pre-Construction Phase Fee, Project Architect Fees, cost of the land, rights-of-way, or any other costs that are the direct responsibility of the Owner.

3.7 “Guaranteed Maximum Price” or “GMP” means the amount proposed by the Construction Manager and accepted by the Owner as the maximum cost to the Owner for construction of the Work in accordance with the Contract Documents. The GMP includes Construction Manager’s Construction Phase Fee, the General Conditions Costs, the Cost of the Work, Construction Manager’s Construction Contingency amount, and the Owner’s Construction Contingency amount and Owner’s Special Cash Allowance.

3.8 “General Conditions Cost” means costs incurred and minor work performed by the Construction Manager without the need for competitive bids/proposals as allowed under Texas Education Code section 51.782(i), as amended. The allowable General Conditions items are further described and limited by attached exhibit.

3.9 “Monthly Salary Rate” means the amount agreed to by the Owner that can be used on Applications for Payment throughout the Construction Phase to account for the services of Construction Manager’s salaried personnel assigned to the Project. A Monthly Salary Rate must be established for each salaried person and must be approved in writing by the Owner in advance of any Application for Payment for that person. The Monthly Salary Rate is for convenience only and any payments made for Construction Manager’s personnel are subject to audit to determine the actual cost of the wages and allowable employer contributions incurred by the Construction Manager for services performed for the Project.

3.10 “Owner’s Specifications” means the construction and contract administration requirements and standards detailed in the Owner’s Specifications exhibit attached to this Agreement.

3.11 “Pre-Construction Phase Services” means the participation, documentation and execution of the Construction Manager’s Pre-Construction Phase deliverables as required by the Contract Documents.

3.12 “Preliminary Project Cost” (PPC) means the total estimated cost of the entire Project, including design, construction, and other associated costs and services that is established by the Owner prior to the commencement of design.

3.13 “Project Architect” means the professional architect or engineer employed by the Owner as architect or engineer of record for the Project and its consultants.

3.14 “Project Team” means the Owner, Construction Manager, Project Architect and its consultants, any separate contractors employed by Owner, and other consultants employed for the purpose of programming, design, and construction of the Project. The members of the Project Team will be designated by Owner and may be modified from time to time by Owner.

3.15 “Subcontractor” means a person or entity who has an agreement with the Construction Manager to perform any portion of the Work. The term Subcontractor does not include the Project Architect, or any person or entity hired directly by the Owner.

a. “Design-Assist Subcontractor” means a person or entity who has an agreement with the Construction Manager to provide services to perform any portion of Pre-Construction Phase Services and or any portion of the construction Work. The term Design-Assist Subcontractor does not include the Project Architect, or any person or entity hired directly by the Owner.

3.16 “Total Project Cost” (TPC) means the total budget established for the Project by the Board of Regents or the Chancellor of The University of Texas System at the end of the design development phase (subject to subsequent modification by Owner). The TPC includes, but is not limited to, Construction Manager’s Pre-Construction Fee, Guaranteed Maximum Price Proposal(s), Project Architect and other professional service fees, and other miscellaneous Project costs.

3.17 “Work” means the provision of all services, labor, materials, supplies, and equipment that are required of the Construction Manager to complete the Project in strict accordance with the requirements of the Contract and the Construction Documents. Work includes, but is not limited to, the Construction Phase Services, additional work required by Change Orders, and any other work reasonably inferable from the Construction Documents. The term “reasonably inferable” takes into consideration the understanding of the parties that some details necessary for completion of the Work may not be shown on the Drawings or included in the Specifications, but they are a requirement of the Work if they are a usual and customary component of the Work or otherwise necessary for complete installation and operation of the Work.

3.18 “Worker Wage Rate” means the actual hourly wage of non-salaried persons performing work on the Project plus allowable employer contributions as established on the Worker Wage Rate Form required by the Construction Documents. The Worker Wage Rate for individual persons must be reasonable and customary for their industry and must be approved in writing by the Owner in advance of any Application for Payment for that person. Any payments made for Construction Manager’s personnel are subject to audit to determine the actual cost of the wages and allowable employer contributions incurred by the Construction Manager for services performed for the Project.

3.19 “Value Engineering” (VE) means a study or series of studies documenting the relative monetary values of various materials and construction techniques, including the initial cost, maintenance cost, energy usage, replacement cost, and life expectancy of the materials, equipment or systems under consideration.

3.20 “Value Engineering Plus” (VE Plus) means a proprietary software program and the process used by the Architect on this project to track, tally and report the baseline facility and related systems as compared to all other major alternative components and systems considered during design for possible inclusion in this project indicating potential for savings in initial cost, total cost of ownership or reduced schedule impacts.

3.21 “Self-Performed Work” means any division of Construction Manager, or any separate Construction Manager or subcontractor that is partially owned or wholly owned by the Construction Manager or any of their employees or employee’s relatives will be considered a related party entity

ARTICLE 4 CONSTRUCTION MANAGER’S GENERAL RESPONSIBILITIES

4.1 Construction Manager shall perform all services specifically allocated to it by the Contract Documents as well as those services reasonably inferable from the Construction Documents as necessary for completion of the Work and the Project. Construction Manager agrees to perform these services using its best efforts, skills, judgments, and abilities.

4.2 Construction Manager shall cooperate with the Project Architect and endeavor to further the interests of the Owner and the Project. Construction Manager shall furnish Pre-Construction Phase Services and Construction Phase Services and complete the Project in an expeditious and economical manner consistent with the interests of the Owner and in accordance with the Project Schedule.

4.3 Construction Manager shall designate a representative authorized to act on the Construction Manager’s behalf with respect to the Project.

4.4 Construction Manager shall establish procedures for communication and coordination among the Project Team, Subcontractors, separate contractors, and others with respect to all aspects of the construction of the Project and implement such procedures.

4.5 Construction Manager shall establish and maintain a numbering and tracking system for all Project records, including changes, requests for information, submittals, and supplementary instructions and shall provide updated records at each Owner’s meeting and when requested.

4.6 Fast Track/Multiple Completion Times. If the Owner elects to “fast-track” or develop the Project in multiple stages, Construction Manager shall organize and perform its services as appropriate to each stage. Each stage of the Project may have a unique schedule for completion and a specific Construction Cost Limitation, at Owner’s discretion.

4.7 Attend and participate in Owner’s “Partnering” Program for all phases of the Project.

4.8 Construction Manager shall identify to the Owner the employees and other personnel that it will assign to the Project and provide the Monthly Salary Rate for each of them. Construction Manager shall also identify any consultants that will be performing services for the Project. After execution of this Agreement by the Owner, Construction Manager shall not add, remove, or replace the persons or entities assigned to the Project except with the Owner’s written consent, which consent shall not be unreasonably withheld. Construction Manager shall not assign to the Project or contract with any person or entity to which Owner has a reasonable objection. Construction Manager shall promptly update and resubmit Exhibit F, CM’s Personnel and Monthly Salary Rates form, indicating the list of persons by name and title and consultants if they change during the Project. Construction Manager’s employees and other personnel that it assigns to the project shall be identified on the Schedule of Values by name and title.

4.9 Construction Manager shall engage its full resources to focus on encouraging creative design concepts, construction technologies and operational/maintenance philosophies which will drive lower costs, both in terms of first cost and especially in terms of Total Cost of Ownership.

ARTICLE 5 PRE-CONSTRUCTION PHASE SERVICES

The Pre-Construction Phase shall be deemed to commence upon the date specified in a Notice to Proceed with Pre-Construction Phase Services issued by Owner and shall continue through completion of the Construction Documents and procurement of all major Subcontractor agreements. Construction Manager is not entitled to reimbursement for any costs incurred for Pre-Construction Phase Services performed before issuance of the Notice to Proceed. Pre-Construction Phase Services may overlap Construction Phase Services. The Construction Manager shall perform the following Pre-Construction Phase Services.

5.1 General Coordination

5.1.1 The Construction Manager’s Pre-construction Phase Services team shall attend Project Team meetings with the Owner, the Owner’s representatives, and the Project Architect at regularly scheduled intervals throughout the Pre-Construction Phase. Frequent Project Team meetings are anticipated prior to the Owner’s acceptance of the GMP and during completion of the Construction Documents.

5.1.1.1 For projects where the Owner has elected to allow the Construction Manager to implement Design-Assist Subcontractor services, while recognizing the responsibility for the Project design resides solely with the Architect, the Construction Manager shall:

5.1.1.1.1 In consultation with the Architect and its consultants make written recommendations to the Owner for review and concurrence regarding which Design-Assist Subcontractors should be procured and at what phase of the project, the active level of involvement anticipated from each Design-Assist Subcontractor in percent of time and for achieving project milestones, and the advantages to the Owner in terms of cost savings, quality, constructability improvement, and schedule enhancements. Trades proposed shall focus on major and or complex project scopes including, but not limited to structural, building envelope, mechanical, electrical, plumbing, fire / life safety, and building automation systems. Recommend to the Owner strategies and methodologies for achieving competition in the solicitation based on the proposed scope of Work and for assuring accountability in maintaining the proposed budget throughout the duration of the project.

5.1.1.1.2 Require Design Assist Subcontractors to work collaboratively with the project team and focus their efforts on achieving a market-driven, cost and schedule-effective design. Require Design Assist Subcontractors to provide recommendations and presentations for consideration of the Project Team regarding systems, components, assemblies, products, suppliers, and manufacturers. Require Design Assist Subcontractors to participate fully with the requirements of this Agreement.

5.1.2 Provide a preliminary evaluation of the Owner’s Design Criteria and the Construction Cost Limitation, each in terms of the other.

5.1.3 Review and understand the standards and requirements in Owner’s Specifications and perform all services in accordance with those standards and requirements.

5.1.4 Visit the site and inspect the existing facilities, systems, and conditions to ensure an accurate understanding of the existing conditions as required.

5.1.5 Participate as a member of the Project Team in the development of the Project Facility Program if such program has not been developed prior to the Effective Date of this Agreement.

5.1.6 Provide recommendations and information to the Project Team on: site usage and site improvements; building systems, equipment and construction feasibility; selection and 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 Owner’s separate contractors, if any; cost factors, including costs of alternative materials or designs, preliminary budgets, and possible cost savings; recognizing and tracking the resolution of conflicts in the proposed Drawings and Specifications; methods of delivery of materials, systems, and equipment; and any other matters necessary to accomplish the Project in accordance with the Project Schedule (as defined below) and the CCL.

5.1.7 Assist the Owner in selecting and directing the services of surveyors, soils engineers, existing facility surveys, testing and balancing, environmental surveys or other special consultants hired by the Owner to develop additional information for the design or construction of the Project.

5.1.8 At Owner’s request, attend public meetings and hearings concerning the development and schedule of the Project.

5.1.9 Actively participate and assist as required in performing up to fifteen (15) formal Life Cycle Cost Analysis (LCCA) comparative analyses from several building system categories to be led by the Architect. The intent of Construction Manager’s involvement is to add constructability expertise, current first cost and life cycle cost sensitivity and operational realism to the equation.

5.1.10 Actively participate and assist Architect as required in developing a robust and accurate VE Plus database reflecting the baseline facility and related systems as compared to all other major alternative components and systems considered during design for possible inclusion in this project indicating potential for savings in initial cost, total cost of ownership and schedule impact. The intent of Construction Manager’s involvement is to add constructability expertise, current first cost and life cycle cost sensitivity and operational realism to the database and subsequent analysis and design decisions.

5.2 Constructability Program

5.2.1 Implement and conduct a constructability program to identify and document Project cost and schedule savings opportunities. The constructability program shall follow accepted industry practices and be in accordance with the requirements of the attached exhibit. Whenever the term “value engineering” is used in conjunction with this Agreement or the Project, it has its the meaning defined herein 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.

5.2.2 Prepare a “Constructability Report” that identifies items that, in the Construction Manager’s opinion, may negatively impact construction of the Project. The Constructability Report shall address the overall coordination of Project Drawings, Specifications, and details and identify discrepancies that may generate Change Orders or claims once Project construction commences. The Constructability Report shall be updated at least monthly during the Pre-Construction Phase.

5.2.3 Provide and implement a system for tracking questions, resolutions, decisions, directions, and other information matters that arise during the development of the Drawings and Specifications for the Project. The decision tracking system shall be in a format approved by the Owner and updated at least monthly during the Pre-Construction Phase.

5.2.4 Initiate creative alternative solutions and propose cost effective options which meet or exceed the performance requirements and intent established by the Office of Capital Projects and campus standards and specifications for construction yet will reduce the total cost of ownership without sacrificing essential functionality.

5.3 Scheduling

5.3.1 Develop a critical path method schedule (“CPM Schedule”) for Project Team review and the Owner's approval, that coordinates and integrates activities on the Project, including the Construction Manager's services, the Project Architect’s design services, the work of other consultants and suppliers, and the Owner's activities with the anticipated construction schedules for other contractors. The CPM Schedule must identify all major milestones through Project Final Completion. The CPM Schedule shall be created and maintained in accordance with the Owner’s Specifications using the Owner specified format and software.

5.3.2 The Construction Manager shall update the CPM Schedule throughout the Pre-Construction and Construction Phases as described in the Owner’s Specifications.

5.3.3 The CPM Schedule shall include other detailed schedule activities as directed by the Owner including, but not limited to, Owner-managed work under separate contracts such as equipment, furniture and furnishings, telephones, project security, property protection, life-safety systems, integration with central campus monitoring systems, information and instructional technology data-transmission systems, and computer technology systems.

5.4 Budget and Cost Consultation

5.4.1 The Construction Manager will provide continuous cost estimating throughout the project, with the ability to provide the Owner the current anticipated project cost at any point during the design phases of the project, not just at the end of each phase. The Construction Manager is responsible for preparing and updating all procurement and construction cost estimates and distributing them to the Project Team throughout the duration of the Project.

5.4.2 Provided Estimated Construction Cost (ECC) reports at the required stages of completion of the schematic design, design development, and construction documents phases of the Project as required in Article 25. The Estimated Construction Cost reports for the design development and construction documents phases shall be detailed estimates derived from cost quantity surveys based on unit prices for labor, materials, overhead and profit, organized in current Construction Specifications Institute Division format for each portion of the Work.

5.4.3 Provide continuous cost consultation services throughout the duration of the Project, including identification and tracking of decisions that affect the scope or quality of the Project and providing ongoing updates of their cost and budget impact. Advise the Project Team immediately if the Construction Manager has reason to believe that the most current ECC will exceed the Construction Cost Limitation (CCL) or not meet Schedule requirements and recommend reasonable strategies for bringing the Project in line with the CCL and the Schedule.

5.4.4 Construction Manager shall promptly identify all variances between estimated costs and actual costs during the Construction Phase and shall promptly report such variances to the Project Team along with recommendations for action, but in any event no more than two (2) business days after acquiring such information.

5.4.5 Should any ECC exceed or fall significantly below the approved CCL, the Owner and Construction Manager shall negotiate changes to the Project requirements, or the CCL as required.

5.5 Coordination of Design and Construction Contract Documents

5.5.1 Review all Drawings, Specifications, and other Construction Documents as they are developed by the Project Architect during the schematic design, design development, and construction documents design phases of the Project.

5.5.2 Consult with Owner and Project Architect on the selection of materials, equipment, component systems, and types of construction used on the Project. Advise Owner on site use, construction feasibility, availability of labor and materials, procurement time requirements, and construction coordination.

5.5.3 Advise Owner of any error, inconsistency or omission discovered in the Drawings, Specifications, and other Construction Documents.

5.5.4 Advise Owner on reasonable adjustments in the Project scope, quality or other options for keeping the Project cost within the CCL.

5.5.5 Review the Construction Documents for compliance with all applicable laws, rules, and regulations and with University of Texas System requirements.

5.6 Construction Planning and Bid Package Strategy

5.6.1 Identify equipment or material requiring extended delivery times and advise Owner on expedited procurement of those items. Advise Owner and Project Architect on the preparation of performance specifications and requests for technical proposals for the procurement and installation of systems and components and for the procurement of long lead items. If requested by Owner, and subject to Owner’s prior approval, issue requests for technical proposals to qualified sources and receive proposals and assist in their evaluation.

5.6.2 Make recommendations to the Project Team regarding organization of the Construction Documents to facilitate the bidding and awarding of construction subcontracts in a manner that promotes the interests of the Project and the Owner. These recommendations may include, but are not limited to, phased or staged construction or multiple separate contracts. The recommendations shall 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, and other constraints.

5.6.3 Review the Construction Documents with the Project Team to eliminate areas of conflict and overlap in the work to be performed by the various Subcontractors or Owner’s separate contractors.

5.6.4 Develop a bid/proposal package strategy in coordination with the Project Architect that addresses the entire scope of Work and individually each phase and stage of the Project. In developing the bid/proposal package strategy, the Construction Manager shall identify all bid/proposal packages on which the Construction Manager intends to submit a self-performed work bid/proposal. The bid/proposal package strategy shall be reviewed with the Owner on a regular basis and revised throughout the buyout of the Project to best promote the interests of the Project and the Owner. Recommendations within this strategy should take into consideration various factors, including 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, and code restrictions. This structured planning and dynamic review process aims to optimize the procurement of subcontracted work.

5.6.5 Assist the Owner, the Project Architect, Owner’s other consultants, and the Owner’s separate contractors in obtaining all applicable risk management, code, and regulatory agency reviews and approvals for the Project including, without limitation, the Texas Higher Education Coordinating Board, the Texas Department of Licensing and Regulation, the State Fire Marshal, the local fire department, and the Owner’s insurance provider.

5.6.6 Advise Owner of any tests to be performed, and assist Owner in selecting testing laboratories and consultants, without assuming direct responsibility for the work of such laboratories and consultants.

5.6.7 Construction Manager shall review the Construction Documents to ensure that they contain adequate provision for all temporary facilities necessary for performance of the Work, and provisions for all the job site facilities necessary to manage, inspect, and supervise construction of the Work.

5.6.8 Provide an analysis of the types and quantities of labor required for the Project and review the appropriate categories of labor required for critical phases or Stages. Make recommendations that minimize adverse effects of labor shortages.

5.6.9 Furniture, Fixtures and Equipment. Consult with and make recommendations to the Owner on the acquisition schedule for fixtures, furniture and equipment, and coordinate with the Owner as may be required to meet the Schedule.

5.7 Obtaining Bids/Proposals for the Work

5.7.1 In accordance with Texas Education Code section 51.782, as amended, Construction Manager shall publicly advertise and solicit competitive lump sum bids/proposals or other delivery terms required by the Owner from trade contractors or subcontractors for the performance of all major elements of the work other than the minor work that may be included in General Conditions. Criteria for determining the bid/proposal that provides the best value to the Owner shall be established by the Project Team and included in the request for bids/proposals. The Construction Manager shall notify the Owner in advance in writing of the date it will receive the bids/proposals.

5.7.1.1 When the Owner has elected to allow the Construction Manager to implement Design-Assist Subcontractor services the Construction Manager shall:

5.7.1.1.1 Obtain Owner’s written approval to proceed with any Design-Assist public advertisement and solicitation.

5.7.1.1.2 Develop Request for Proposals (RFP) which clearly differentiates fees/costs as Part One (1) Pre-Construction Phase Services and Part Two (2) Construction Phase Services.

5.7.1.1.3 Agree that Design-Assist Proposals will be based on various levels of completeness of Schematic Phase, Design Development Phase, or Construction Documents and be incorporated into and coordinated with the Construction Manager’s bid-package strategy.

5.7.1.1.4 Upon receiving and evaluating Design-Assist Proposals, recommend in writing to the Owner the best value respondents to be considered to interview for the Project. Provide to the Owner all Design-Assist Proposals received and supporting analysis and evaluations for review in advance of any interviews. When requested by the Owner develop, organize, schedule, and lead the Design-Assist interviews to which the Project Team may participate as determined by the Owner for determination of best value respondent. Prepare Recommendation for Award for Pre-Construction Services memos including all supporting documentation from all respondents and submit to the Owner for record, and written acceptance, or rejection.

5.7.1.1.5 Agree that an award of Design-Assist Subcontractor Pre-Construction Phase Service does not guarantee or imply any potential award of Design-Assist Subcontractor Construction Phase Services.

5.7.1.1.6 Terminate or suspend Design-Assist Subcontractor services if such services are determined by the Owner or Construction Manager to no longer be advantageous to the Project.

5.7.2 Schedule and conduct pre-bid conferences with interested bidders/proposers, Subcontractors, material suppliers, and equipment suppliers, and record minutes of the conferences.

5.7.3 Construction Manager and Owner shall review all trade contractor or Subcontractor bids/proposals in a manner that does not disclose the contents of any bid/proposal to persons outside of the Project Team during the selection process. Based on the selection criteria included in the request for proposals, Construction Manager shall recommend to the Owner the bid/proposal that provides the best value for the Project. Upon Owner’s concurrence in the recommendation, Construction Manager may negotiate the terms of the subcontract with the apparent best value bidder/proposer.

5.7.4 All subcontracts must be on a lump sum basis unless other payment terms are approved in writing and in advance by the Office of Capital Projects. Upon Owner’s concurrence in the final terms of the subcontract, Construction Manager shall enter a written subcontract for the subcontract work and provide a copy to the Owner. All bids/proposals shall be publicly available after award of the subcontract or within seven (7) days after the date of final selection, whichever is later.

5.7.4.1 When Design-Assist Subcontractor Construction Phase Services are implemented on a Project those services shall be proposed to the Construction Manager as a Guaranteed Maximum Price, Lump Sum or Unit Cost or other delivery terms as determined by the Owner.

5.7.5 The Owner reserves the right to select a bid or proposal other than the one recommended by the Construction Manager. In the event such selection results in a demonstrable increase in cost or risk to the Construction Manager, the Owner and Construction Manager shall work collaboratively to identify and address those impacts. Any equitable adjustment to the Contract Sum or schedule, if warranted, shall be mutually agreed upon in writing. This provision acknowledges the Owner’s discretion in subcontractor selection while providing a process for addressing material impacts on the Construction Manager’s performance obligations.

5.7.6 Construction Manager may seek to self-perform portions of the Work identified for self-performance in the bid/proposal strategy. The Construction Manager must submit a bid/proposal for the self-performance work in the same manner as all other trade contractors or Subcontractors. The Owner will determine whether the Construction Manager’s bid/proposal provides the best value for Owner, which determination is final. Construction Manager must perform approved self-performance work in accordance with the same terms and conditions as its other Subcontractors. For payment purposes, the Construction Manager shall account for self-performed work in the same manner as it does all other subcontract costs.

5.7.7 For scope of work bid packages typically performed by subcontractors, the Construction Manager may propose to self-perform such work which the Construction Manger identifies and documents their intention in their bid/proposal strategy and for which Construction Manager submits a self-performed work proposal directly to the Owner at least twenty-four (24) hours prior to receiving similar proposals from other parties for that exact same scope of work. The Owner will determine whether the Construction Manager’s proposal provides the best value for the Owner and Owner’s decision shall be final and not subject to appeal.

5.7.7.1 If the Construction Manager provides at least three (3) additional proposals from other qualified trade contractors for the exact same scope of work the Owner at its discretion may award the self-performed work as lump sum to the Construction Manager. In the absence of sufficient competition for the exact same scope of work the Owner at its discretion may award the self-performed work to the Construction Manager based on cost-plus fee (Not to Exceed 7.5%) subject to an agreed upon guaranteed maximum price for the self-performed work.

5.7.7.2 Any subcontract for self-performed work will provide for payment relative to the progress of the work up to a total amount equal to the lump sum proposal if three (3) or more additional proposals are provided as indicated above, or relative to the progress of the work up to the actual Cost of the Work (as defined in this agreement) plus fee in the event the self-performed work is awarded as a not-to-exceed cost-plus fee maximum amount.

5.7.7.3 All terms and provisions of any subcontract for self-performed work will be consistent with the terms and conditions of this agreement. All savings under any such subcontract for “self-performed work” awarded as a not-to-exceed cost-plus fee under this contract provision shall be applied to reduce the Cost of the Work under this Agreement and the Guaranteed Maximum Price of this Agreement.

5.7.8 Construction Manager shall identify every Subcontractor it intends to use on the Project, including Subcontractors used for self-performed work, to the Owner in writing at least ten (10) days before entering any subcontract. Construction Manager shall not use any Subcontractor to which Owner has a reasonable objection. Construction Manager shall not be required to subcontract with any Subcontractor to which it has reasonable objection. Following Owner acceptance of a Subcontractor, that Subcontractor and the terms of its contract with the Construction Manager shall not be changed without Owner’s written consent, which shall not be unreasonably withheld.

5.7.9 If a selected trade contractor or subcontractor fails to execute a subcontract after being selected in accordance with this section or defaults in the performance of its work, the Construction Manager may, in consultation with the Owner and without further advertising, fulfill the subcontract requirements itself or select a replacement trade contractor or subcontractor to do so.

5.8 Safety

5.8.1 In accordance with Owner’s Uniform General Conditions for University of Texas System Building Construction Contracts, Construction Manager is responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the Work. The safety program shall comply with all applicable requirements of the Occupational Safety and Health Act of 1970 and all other applicable federal, state, and local laws and regulations and with the requirements of Owner’s project safety specification.

5.8.2 Construction Manager shall provide recommendations and information to Owner and Project Architect regarding the assignment of responsibilities for safety precautions and programs, temporary Project facilities, and equipment, materials, and services for common use of the Subcontractors. Construction Manager shall verify that appropriate safety provisions are included in the Construction Documents. The existence or creation of any Owner controlled insurance program in connection with the Work shall not lessen or reduce the Construction Manager’s safety responsibilities.

ARTICLE 6 PRE-CONSTRUCTION PHASE FEE

6.1 The Pre-Construction Phase Fee is the total compensation payable to the Construction Manager for the performance of Pre-Construction phase Services, except for Additional Pre-Construction Phase Services approved in advance and in writing by the Owner. The Pre-Construction Phase Fee shall be a lump sum amount based on the CCL established in this Agreement.

6.1.1 When Design-Assist Pre-Construction Phase Subcontractor services are implemented on a Project those shall be proposed as a Lump Sum, Hourly Not to Exceed, other delivery terms as determined by the Owner.

6.2 Except as specifically allowed in paragraph 6.4, the Construction Manager shall not be entitled to any increase in the Pre-Construction Phase Fee for any costs, expenses, liabilities, or other obligations arising from the performance of Pre-Construction Phase Services.

6.3 Costs associated with the following items are specifically, but not exclusively, in the establishment of the Pre-Construction Phase Fee: profit and profit sharing; general overhead; salaries and labor; housing and relocation; estimating, scheduling and information management systems and software; contract administration; office expenses; printing and copying; consulting fees; legal or accounting fees; cost of money; taxes; insurance premiums and deductibles; bond costs; purchase or rental of equipment; utilities; travel; per diem; fines or penalties; and damage awards.

6.4 If the scope of the Pre-Construction Phase Services is changed materially, the Pre-Construction Phase Fee may be equitably adjusted. If the CCL is changed materially before or after acceptance of the GMP Proposal, the Pre-Construction Phase Fee may be adjusted in proportion to the change in the CCL.

6.5 For Additional Pre-Construction Phase Services that are approved in advance and in writing by the Owner, Construction Manager shall be entitled to additional compensation based the manner determined by the Owner as follows:

6.5.1 A pre-established lump sum amount; or

6.5.2 The hourly cost of Construction Manager’s employee’s or consultants who perform the Additional Services based on the employee’s timesheets for the specific tasks performed and Worker Wage Rate or prorated Monthly Salary Rate plus the actual cost of allowable expenses incurred in the performance of the Additional Services plus an overhead and profit markup of ten percent (10%) of the total cost; or

6.5.3 As otherwise agreed by the parties in advance of performing the Additional Pre-Construction Phase Services.

ARTICLE 7 GUARANTEED MAXIMUM PRICE PROPOSAL

7.1 When the Parties agree that the design of the Project is sufficiently developed and documented to allow detailed pricing of its construction, Construction Manager shall prepare and submit a Guaranteed Maximum Price (“GMP”) Proposal to Owner. The GMP Proposal must be prepared in accordance with the guidelines and delivered in the format specified by Owner in the attached exhibits. Owner, at its sole option and discretion, may specify different requirements for the GMP Proposal. Construction Manager shall not withdraw its Guaranteed Maximum Price Proposal for ninety (90) days following submission to the Owner.

7.2 In developing the GMP Proposal, the Construction Manager shall coordinate efforts with the Project Architect to identify qualifications, clarifications, assumptions, exclusions, value engineering and any other factors relevant to establishment of a GMP. The Construction Manager shall review development of the GMP Proposal with the Owner on an ongoing basis to address clarifications of scope and pricing, distribution of contingencies, schedule, assumptions, exclusions, and other matters relevant to the establishment of a GMP.

7.3 The GMP Proposal must include a written description of how it was derived that specifically identifies the clarifications and assumptions made by the Construction Manager in the GMP and the monetary amounts attributable to them. The GMP Proposal shall include, without limitation, a breakdown of Construction Manager’s General Conditions Costs in a Resource Allocation Plan and Not-To-Exceed Costs of the Work organized by trade; contingency amounts; the Construction Phase Fee; and the proposed Contract Time, including dates for Notice to Proceed, Substantial Completion and Final Completion. Draft copies of the General Conditions Costs, Cost of Work, Clarifications and Assumptions, Staffing Plan, and Schedule shall be provided to the Owner in advance for review and comments prior to formal submission.

7.4 The Guaranteed Maximum Price Proposal shall allow for reasonably expected changes and refinements in the Drawings and Specifications through completion of the Construction Documents, except for material changes in scope.

7.5 The GMP Proposal may include a Construction Manager’s Contingency amount as allowed under Cost of the Work.

7.6 Included with its GMP Proposal, Construction Manager shall provide an electronic set of the drawings, specifications, plans, sketches, instructions, requirements, materials, equipment specifications and other information or documents that fully describe the Project as developed at the time of the GMP Proposal and that are relevant to the establishment of the GMP. The bound supporting documents shall be referenced in and incorporated into the GMP Proposal.

7.7 The GMP Proposal and all supporting documents shall identify and describe all items, assumptions, costs, contingencies, schedules, and other matters necessary and relevant for proper execution and completion of the Work and for establishment of the Guaranteed Maximum Price. The GMP Proposal and the supporting documents are complementary and, in the event of an irreconcilable conflict between or among them, the interpretation that provides for the higher quality of material and/or workmanship shall prevail over all other interpretations.

7.8 In submitting the GMP Proposal, the Construction Manager represents that it will provide every item, system or element of Work that is identified, shown, or specified in the GMP Proposal or the supporting documents, along with all necessary or ancillary materials and equipment for their complete operating installation, unless specifically excluded by the Owner. Upon Owner’s acceptance of the GMP Proposal, the Construction Manager shall not be entitled to any increase in the Guaranteed Maximum Price due to the continued refinement of the Construction Documents or the absence or addition of any detail or specification that may be required to complete the construction of the Project as described in and reasonably inferable from the GMP Proposal or the supporting documents used to establish the GMP.

7.9 The GMP Proposal shall adopt and incorporate all terms and conditions of this Agreement and all attachments to this Agreement. Any proposed deviation from the terms and conditions of this Agreement must be clearly and conspicuously identified to the Owner in writing and specifically accepted by the Owner. In the event of a conflict between any term of the GMP Proposal that was not clearly and conspicuously identified and approved by the Owner and the terms of this Agreement and its attachments, the terms of the Agreement and its attachments shall control.

7.10 Owner may accept or reject the Guaranteed Maximum Price Proposal or attempt to negotiate its terms with Construction Manager.