ESBD_383359_1732633429875_Exhibit E Sample Contract.pdf

EXHIBIT E

SAMPLE

CONSTRUCTION MANAGER-AT-RISK CONTRACT

BETWEEN

THE TEXAS HISTORICAL COMMISSION

AND

[CONTRACTOR]

Contract number 808-25-250510

The Texas Historical Commission, a state agency located at P.O. Box 12276, Austin, Texas 78711 (hereinafter referred to as “THC”), as Owner (as defined in UGC, Section 1.25) and [Contractor], a construction company, located at [Location] (hereinafter referred to as “CMR” as defined in Section 1.1), enter into the following contract for construction services (hereinafter referred to as the “Contract”) pursuant to TEX. GOV’T CODE ANN. §§ 2166.2525,

2269.251 (Vernon 2008 & Supp. 2013), to be effective as of the Effective Date (as defined in Section 1.1).

Schedule of Attachments. The following shall be the attachments to this Contract, digital copies of which are contained on the flash drive in PDF, or will be contained on the flash drive upon execution of the GMP Amendment, and are hereby incorporated herein by reference:

13.23.1. Attachment A. Uniform General Conditions for Construction Contracts;

13.23.2. Attachment B. Supplementary General Conditions;

13.23.3. Attachment C. Special Conditions;

13.23.4. Attachment D. GMP Proposal Template;

13.23.5. Attachment E. Drawings;

13.23.6. Attachment F. Project Manual;

13.23.7. Attachment G. Clarifications & Assumptions;

13.23.8. Attachment H. Statement of GMP;

13.23.9. Attachment I. Statement of Date of Substantial Completion;

13.23.10. Attachment J. Initial Work Progress CPM Schedule;

13.23.11. Attachment K. GMP Amendment Template;

13.23.12. Attachment L. CMR List of Staff;

13.23.13. Attachment M. Criminal Background Check Criteria and Information;

13.23.14. Attachment N-1. HUB Subcontracting Plan-FORM; and

13.23.15. Attachment N-2. HUB Subcontracting Plan PAR-FORM.

I. DEFINITIONS

1.1. Definitions. Unless specifically provided otherwise herein, all words and phrases in this Contract in initial caps shall have the meanings set out in this Section. In the event of any conflict between the definitions in this Contract and the definitions in the THC Uniform General Conditions (hereinafter referred to as “UGC”), the Supplementary General Conditions, and the Special Conditions, or in any other document that is referenced herein and incorporated for all purposes, the definitions used in this Contract shall control to the extent of the conflict.

1.1.1. A/E means the architect and/or engineer with whom THC has entered into a professional services agreement for the Project.

1.1.2. Bid Bond has the same meaning as Security Bond, which is defined in UGC, Article 5.

1.1.3. Budget means the construction budget for the Project, as set out in the RFP for this Project, as may be amended from time to time by THC.

1.1.4. Building(s) means any structure above ground and all associated infrastructure serving it.

1.1.5. C&A means any and all clarifications and/or assumptions made by CMR in the preparation of its GMP Proposal to supplement the information provided by THC as contained in the Drawings and Specifications.

1.1.6. CAD means AutoCAD DWG format unless specifically provided otherwise herein.

1.1.7. Certificate of Substantial Completion means the certificate signed by the CMR, A/E, and THC establishing the date of Substantial Completion for the applicable part of the Work, and identifying responsibilities for security and maintenance as set out in UGC, Article 12.

1.1.8. Close-Out Documents has the same meaning as defined in UGC, Article 1 and includes the Contractor’s marked-up “as-builts.”

1.1.9. CMR Contingency means the amount (which must be approved by THC) that will be allocated by CMR as a component of the Cost of Work in CMR’s GMP (as defined below) for CMR’s exclusive use and benefit to cover any additional costs that may be discovered or otherwise arise, during the design and construction documents phases, but which costs are nevertheless the responsibility of CMR as part of the Cost of Work.

CMR must account to THC when CMR uses, applies, or otherwise debits the CMR Contingency.

1.1.10. Communication Protocol means the communication and tracking procedures to be utilized for interaction and reporting between THC, CMR, Subcontractors, and A/E.

1.1.11. Consideration means the funds and any and all other forms of valid, legal consideration as discussed in Article V of this Contract.

1.1.12. Construction Costs means all hard and soft costs for labor, materials, equipment, fees, and other similar costs and expenses required to complete the Project, and prepared in the format promulgated by the Construction Specifications Institute.

1.1.13. Construction Documents has the same meaning as defined in UGC, Article 1, when, in THC’s sole opinion, they are of satisfactory quality and detail.

1.1.14. Construction Documents–50% A/E Deadline means the date by which A/E shall deliver the Construction Documents that must be fifty percent (50%) complete to THC and CMR.

1.1.15. Construction Documents–50% A/E Reply means such written evidence that, in THC’s sole opinion, adequately resolves all Construction Documents–50% THC Comments and Construction Documents–50% CMR Comments.

1.1.16. Construction Documents–50% A/E Reply Deadline means the date that is a fixed number of days after the Construction Documents–50% Comments Deadline, and by which date A/E shall prepare and deliver the Construction Documents–50% A/E Reply to THC and CMR.

1.1.17. Construction Documents–50% CMR Comments means any comments, revisions, clarifications, and the like, by CMR to the fifty percent (50%) complete Construction Documents.

1.1.18. Construction Documents–50% Comments Deadline means the date that is a fixed number of days after the Construction Documents–50% Review Deadline, and by which date THC must prepare and deliver any Construction Documents–50% THC Comments to A/E and CMR, and CMR must prepare and deliver any

Construction Documents–50% CMR Comments to THC and A/E.

1.1.19. Construction Documents–50% Cost Estimate means a cost estimate using the Construction Specifications Institute MasterFormatTM, with corresponding cost estimates in increasing detail and refinement updated through the Construction Documents–50% A/E Review Deadline.

1.1.20. Construction Documents–50% Review Deadline means the date that is a fixed number of days after the Construction Documents–50% A/E Deadline and by which date A/E and CMR shall meet with THC to review the fifty percent (50%) complete Construction Documents, and CMR shall prepare and deliver its Construction Documents–50% Cost Estimate to THC and A/E, and A/E shall prepare and deliver its Construction Documents–50% Cost Estimate to THC and CMR.

1.1.21. Construction Documents–50% THC Comments means any comments, revisions, clarifications, and the like, by THC to the fifty percent (50%) complete Construction Documents.

1.1.22. Construction Documents–90% A/E Deadline means the date that is a fixed number of days after the Construction Documents–50% A/E Reply Deadline, and by which date A/E shall deliver the Construction Documents that must be ninety percent (90%) complete to THC and CMR.

1.1.23. Construction Documents–90% A/E Reply means such written evidence that, in THC’s sole opinion, adequately resolves all Construction Documents–90% THC Comments and Construction Documents–90% CMR Comments.

1.1.24. Construction Documents–90% A/E Reply Deadline means the date that is a fixed number of days after the Construction Documents–90% Comments Deadline, and the date by which A/E shall prepare and deliver the Construction Documents–90% A/E Reply to THC and CMR.

1.1.25. Construction Documents–90% CMR Comments means any comments, revisions, clarifications, and the like by CMR, to the ninety percent (90%) complete Construction Documents.

1.1.26. Construction Documents–90% Comments Deadline means the date that is a fixed number of days after the Construction Documents–90% Review Deadline, and by which date THC must prepare and deliver any Construction Documents–90% THC Comments to A/E and CMR, and CMR must prepare and deliver any Construction Documents–90% CMR Comments to THC and A/E.

1.1.27. Construction Documents–90% Cost Estimate means a cost estimate using the Construction Specifications Institute MasterFormatTM, with corresponding cost estimates in increasing detail and refinement updated through the Construction Documents–90% Review Deadline.

1.1.28. Construction Documents–90% Review Deadline means the date that is a fixed number of days after the Construction Documents–90% A/E Deadline, and by which date A/E and CMR shall meet with THC to review the ninety percent (90%) complete Construction Documents, and CMR shall prepare and deliver its Construction Documents–90% Cost Estimate to THC and CMR, and A/E shall prepare and deliver its Construction Documents–90% Cost Estimate to THC and CMR.

1.1.29. Construction Documents–90% THC Comments means any comments, revisions, clarifications, and the like by THC, to the ninety percent (90%) complete Construction Documents.

1.1.30. Construction Documents–100% A/E Deadline means the date that is a fixed number of days after the Construction Documents–90% A/E Reply Deadline, and by which date A/E shall deliver the one hundred percent (100%) complete Construction Documents to THC and CMR.

1.1.31. Construction Documents–100% A/E Reply means three (3) originals and one (1) digital copy of the approved, one hundred percent (100%) complete, professionally signed and sealed Construction Documents that, in THC’s sole opinion, adequately resolves all Construction Documents–100% THC Comments and Construction Documents–100% CMR Comments.

1.1.32. Construction Documents–100% A/E Reply Deadline means the date that is a fixed number of days after the Construction Documents–100% Comments Deadline, and by which A/E shall prepare and deliver the one hundred percent (100%) complete, professionally signed and sealed Construction Documents to THC and

CMR.

1.1.33. Construction Documents–100% CMR Comments means any comments, revisions, clarifications, and the like by CMR to the one hundred percent (100%) complete Construction Documents.

1.1.34. Construction Documents–100% Comments Deadline means the date that is a fixed number of days after the Construction Documents–100% A/E Deadline, and by which date THC must prepare and deliver any Construction Documents–100% THC Comments to A/E and CMR, and CMR must prepare and deliver any Construction Documents–100% CMR Comments to THC and A/E.

1.1.35. Construction Documents–100% Cost Estimate means cost estimates using the Construction Specifications Institute MasterFormat™, with corresponding cost estimates in increasing detail and refinement updated through the Construction Documents–100% Review Deadline and allowing for the further development until such time as THC and CMR agree on a GMP.

1.1.36. Construction Documents–100% Review Deadline means the date that is a fixed number of days after the Construction Documents–100% A/E Deadline, and by which date A/E and CMR shall meet with THC to review the one hundred percent (100%) complete Construction Documents, and CMR shall prepare and deliver its Construction Documents–100% Cost Estimate to THC and A/E, and A/E shall prepare and deliver its Construction Documents–100% Cost Estimate to THC and CMR.

1.1.37. Construction Documents–100% THC Comments means any comments, revisions, clarifications, and the like by THC to the one hundred percent (100%) complete Construction Documents.

1.1.38. Construction Documents–THC NOA means a written notice of authorization to proceed with preparation of the Construction Documents.

1.1.39. Construction Documents–THC NOA Deadline means the date that is a fixed number of days after the DD Documents–A/E Reply Deadline, and by which date THC should deliver a Construction Documents–THC NOA to A/E with a copy to CMR.

1.1.40. Construction Management Fee means, subject to the provisions of Article 11 of the UGC, the fee derived by multiplying the sum of: (i) the Cost of Work; and (ii) any portion of the THC Controlled Contingency that may be used, applied, or otherwise credited by THC to the Cost of Work, by an agreed upon percentage.

1.1.41. Construction Management Services means, collectively, the comprehensive construction and management services to be provided to THC by CMR as specified in this Contract.

1.1.42. Construction Manager-at-Risk (hereinafter referred to as “CMR”), for purposes of this Contract, has the same meaning as “Contractor” in the UGC, including, but not limited to, the definitions included in Article 1.

1.1.43. Contract Documents means those documents identified in Article III of this Contract.

1.1.44. Cost Estimate means the cost estimate to be prepared by CMR at various pre-construction phases of the

Project in the formats specified herein.

1.1.45. Cost of Work means those costs necessarily incurred by CMR in the proper performance of the Work (as defined below), but which: (i) shall in no event be at rates greater than the standard rates in the locale of the Project; and (ii) shall be composed of only the cost items set forth in Article VI below. Any exceptions require prior written consent of THC.

1.1.46. DD Documents means the design development documents, such as plans, elevations, and such other drawings, calculations, and outline specifications that, in THC’s sole opinion, are of such quality and detail that they enable THC to fix and illustrate the size and character of the entire Project in its essentials as to kinds of materials and assembly details and type of structure and to coordinate the interface of all architectural and structural elements with all building systems.

1.1.47. DD Documents–A/E Deadline means the date that is a fixed number of days after A/E’s receipt of the DD Documents–THC NOA, and by which date A/E shall deliver the design development phase services for the Project to THC.

1.1.48. DD Documents–A/E Reply means such written evidence that, in THC’s sole opinion, adequately resolves all DD Documents–THC Comments and DD Documents–CMR Comments.

1.1.49. DD Documents–A/E Reply Deadline means the date that is a fixed number of days after the DD Documents–Comments Deadline, and by which date A/E shall deliver the DD Documents–A/E Reply to THC and CMR.

1.1.50. DD Documents–CMR Comments means any comments, revisions, clarifications, and the like from CMR to the proposed DD Documents.

1.1.51. DD Documents–Comments Deadline means the date that is a fixed number of days after the DD Documents–Review Deadline, and by which date THC shall prepare and deliver any DD Documents–THC Comments to A/E and CMR, and CMR shall prepare and deliver any DD Documents–CMR Comments to THC and A/E.

1.1.52. DD Documents–Review Deadline means the date that is a fixed number of days after the DD Documents– A/E Deadline, and by which date A/E and CMR shall meet with THC to review the proposed DD Documents;

and CMR shall prepare and deliver its DD Phase Cost Estimate to THC and A/E, and A/E shall prepare and deliver its DD Phase Cost Estimate to THC and CMR.

1.1.53. DD Documents–THC Comments means any comments, revisions, clarifications, and the like from THC to the proposed DD Documents.

1.1.54. DD Documents–THC NOA means a written notice of authorization to proceed with preparation of the DD Documents.

1.1.55. DD Documents–THC NOA Deadline means the date that is a fixed number of days after the Schematic Design–A/E Reply Deadline, and by which date THC should deliver a DD Documents–THC NOA to A/E with a copy to CMR.

1.1.56. DD Phase Cost Estimate means the detailed Opinion of Probable Construction Cost in ASTM UNIFORMAT II, updated through the DD Documents–Review Deadline.

1.1.57. Deliverables means any and all Drawings, Specifications, photos, designs, studies, sketches, computer programs, reports, and improvements, as well as the Construction Management Services, which are specified to be delivered by CMR pursuant to the terms of this Contract.

1.1.58. Design Program means, collectively, the overall goals and design objectives of the Project, the aesthetic considerations, and the functional requirements including: (i) allocations of space with uses and adjacency relationships for all areas/spaces; and (ii) operational objectives and such standards of design that THC may require for all architectural and engineering disciplines in the design and construction of the Project.

1.1.59. Drawings has the same meaning as defined in UGC, Article 1, and includes schedules and notes.

1.1.60. Effective Date means the date that the last signature of a party is affixed hereto.

1.1.61. Environmental Laws means any local, state, or federal law, rule or regulation pertaining to environmental regulation, contamination, clean-up or disclosure, including, without limitation, each of the following, as the same may be amended from time to time: (i) the Resource Conservation and Recovery Act of 1976 (“RCRA”) (42 U.S.C. § 6901 et seq.), as amended by the Used Oil Recycling Act of 1980 (Pub. L. No. 96-463, 94 Stat. 2055 (1980)), the Solid Waste Disposal Act Amendments of 1980 (Pub. L. No. 96-482, 94 Stat. 2334 (1980)), and the Hazardous and Solid Waste Amendments of 1984 (Pub. L. No. 98-616, 98 Stat. 3221 (1984)), and regulations promulgated thereunder; (ii) the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”) (42 U.S.C. § 9601 et seq.), as amended by the Superfund Amendments and Reauthorization Act of 1986 (Pub. L. No. 99-499, 100 Stat. 1613 (1986)), and regulations promulgated thereunder; (iii) the Toxic Substances Control Act (15 U.S.C. § 2601 et seq.); (iv) the Endangered Species Act of 1973 (15 U.S.C. § 1531 et seq.) and its amendments; (v) laws, statutes, ordinances, rules, regulations, orders, or determinations relating to “wetlands,” including without limitation those set forth in the Federal Water Pollution Control Act (commonly referred to as the “Clean Water Act”) (33 U.S.C. § 1251 et seq.); (vi) the Texas Water Code; and (vii) the Texas Solid Waste Disposal Act (Tex. Health & Safety Code Ann. §§ 361.001–361.345 (Vernon 2010 & Supp. 2013)).

1.1.62. Final Inspection means the same process and procedure described in UGC, Section 12.1.2.

1.1.63. Final Inspection Deadline means the date that is thirty (30) days after the Substantial Completion Inspection, and by which date A/E must conduct a Final Inspection.

1.1.64. General Conditions means those items and related costs that are specified in Article VI below.

1.1.65. General Conditions Fee means the fixed, lump sum fee that comprises part of the Contract Sum, and which shall constitute the entire amount of compensation to be paid to CMR for General Conditions.

1.1.66. Governmental Authority(ies) means the city, the county, any municipal utility district or similar taxing authority in which the Project is located, the State of Texas, the Federal Emergency Management Agency, the United States Army Corps of Engineers, the United States Environmental Protection Agency, the Texas Commission on Environmental Quality, and any other governmental or quasi-governmental agency or authority having jurisdiction over any development or construction activities on the Project or the CMR.

1.1.67. Guaranteed Maximum Price (hereinafter referred to as “GMP”) means the maximum sum that THC shall be responsible to pay for the completion of the Project (subject to any Change Orders), any excess of which shall be the obligation solely of CMR.

1.1.68. Guaranteed Maximum Price Amendment (hereinafter referred to as “GMP Amendment”) means the amendment to this Contract that will reflect the terms for proceeding with the Work.

1.1.69. Guaranteed Maximum Price Proposal (hereinafter referred to as “GMP Proposal”) means that written offer from CMR to THC which includes, among other things, a proposed GMP.

1.1.70. Hazardous Materials means (i) any “hazardous waste” as defined by Resource Conservation and Recovery Act (RCRA), and regulations promulgated thereunder; (ii) any “hazardous substance” as defined by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and regulations promulgated thereunder; (iii) any toxic substance as defined under or regulated by the Toxic Substances Control Act; (iv) asbestos, polychlorinated biphenyls, radon, or explosive or radioactive materials; (v) underground and above ground storage tanks, whether empty, filled or partially filled with any substance, including without limitation any petroleum product or any other “hazardous substance”; (vi) any substance the presence of which at the Project is prohibited by any Environmental Laws; and (vii) any other substance which by any Environmental Laws requires special handling or notification of any Governmental Authority in its collection, storage, treatment, or disposal.

1.1.71. Initial Conceptual Drawings means initial concept drawings and block diagrams that, in THC’s sole opinion, are of such quality and detail as to enable THC to establish design direction.

1.1.72. Initial Conceptual Drawings–A/E Deadline means the date that is a fixed number of days after the Project Assessment Deadline, and by which date A/E shall prepare and submit the Initial Conceptual Drawings to THC and CMR.

1.1.73. Initial Conceptual Drawings–A/E Reply means such written evidence that, in THC’s sole opinion, adequately resolves all Initial Conceptual Design–THC Comments and Initial Conceptual Design–CMR Comments.

1.1.74. Initial Conceptual Drawings–A/E Reply Deadline means the date that is a fixed number of days after the Initial Conceptual Drawings–Comments Deadline, and by which date A/E shall prepare and deliver the Initial Conceptual Drawings–A/E Reply to THC and CMR.

1.1.75. Initial Conceptual Drawings–CMR Comments means any comments, revisions, clarifications, and the like from CMR to the proposed Initial Conceptual Drawings.

1.1.76. Initial Conceptual Drawings–Comments Deadline means the date that is a fixed number of days after the Initial Conceptual Drawings–Review Deadline, and by which date THC must prepare and deliver any Initial Conceptual Drawings–THC Comments to A/E and CMR, and CMR must prepare and deliver any Initial Conceptual Drawings–CMR Comments to THC and A/E.

1.1.77. Initial Conceptual Drawings–Review Deadline means the date that is a fixed number of days after the Initial Conceptual Drawings–A/E Deadline, and by which date A/E and CMR shall meet with THC to review the Initial Conceptual Drawings.

1.1.78. Initial Conceptual Drawings–THC Comments means any comments, revisions, clarifications, and the like from CMR to the proposed Initial Conceptual Drawings.

1.1.79. Laws and Regulations means any and all applicable laws, statutes, rules, regulations, ordinances, codes, and orders including those governing labor, equal employment opportunity, safety, and environmental protection, including but not limited to, all applicable requirements of Title III of the Americans with Disabilities Act (42 U.S.C. § 12181) and the Elimination of Architectural Barriers laws and Texas Accessibility Standards found in Texas Government Code, Chapter 469, of any and all Governmental Authorities.

1.1.80. MEP Systems means mechanical, electrical, and plumbing systems and includes all fire protection, security, telecommunication, data, and similar systems.

1.1.81. Notice to Proceed with Construction (or “NTP”) means the written notice to be issued to CMR by THC, which shall inform CMR of, among other things, the date to begin a specific phase of Work and the respective date anticipated for Substantial Completion of the specific phase of Work. The effective date of the first NTP shall constitute the starting date of the Contract Time.

1.1.82. Notice to Proceed with Pre-Construction Activities means the written notice to be issued to CMR by THC, which shall inform CMR of, among other things, the date on which CMR shall commence the Construction Phase of the Construction Management Services.

1.1.83. Open Items List means a list of work activities, punchlist items, changes or other issues that are not expected by Owner and Contractor to be complete prior to Substantial Completion.

1.1.84. Opinion of Probable Construction Cost means a cost estimate to facilitate budgetary and feasibility determinations, based on historical information with adjustments made for specific Project conditions, wherein estimates are based on costs per square foot, number of rooms/seats, etc. Project information required for estimates at this level shall include a general functional description, schematic layout, geographic location, size expressed as building area, numbers of people, seats, etc., and intended use.

1.1.85. Pay Application has the same meaning as “Application for Payment” as defined in UGC, Article 1 and discussed in UGC, Article 10.

1.1.86. Person means an individual and includes a corporation, an organization, a business trust, an estate, a trust, a partnership, an association, or any other legal entity.

1.1.87. Post-Final Inspection Punchlist means the punchlist of items that THC will deliver to CMR that sets out any part of the Work that was not corrected or completed in accordance with the Contract Documents as of the Final Inspection.

1.1.88. Post-Final Inspection Punchlist Deadline means the date that is a fixed number of days after the date of the Final Inspection, and by which date A/E shall deliver any Post-Final Inspection Punchlist to CMR.

1.1.89. Pre-Construction Management Fee means the fixed, lump sum fee for pre-construction services to be performed by CMR.

1.1.90. Pre-Final Inspection Punchlist means the list of final punchlist items as defined in UGC, Article 12 that THC will deliver to CMR along with a Certificate of Substantial Completion.

1.1.91. Pre-Final Inspection Punchlist Deadline means the date that is a fixed number of days after the date of the Substantial Completion Inspection, and by which date A/E shall deliver a Pre-Final Inspection Punchlist to

CMR.

1.1.92. Project means the work described in Section 2.1 below, and includes each component design/construction package that may be prescribed by THC.

1.1.93. Project Assessment Deadline means the date that is a fixed number of days after receipt of a Notice to Proceed with Pre-Construction Activities, and by which date CMR shall complete all of the assessment tasks.

1.1.94. Project Manager means the individual designated by CMR and A/E, respectively, each of whom must be approved by THC, as the contact person with specific authority to properly supervise and direct the duties and responsibilities of the respective entity, on behalf of said entity, pursuant to the terms and conditions of this Contract, and who shall have decision-making authority to bind their respective entity with respect to the construction of the Project.

1.1.95. Punchlist means, except as may be specifically provided otherwise below, a list of items of Work to be finished, remaining Work to be performed, or Work that does not meet quality or quantity requirements as required in the Contract Documents.

1.1.96. Request for Proposal (hereinafter referred to as “RFP”) means a solicitation requesting submittal of a proposal in response to the required scope of services and usually requires some form of cost proposal

1.1.97. RFP means the THC Request for Proposals to which this contract was attached.

1.1.98. Schematic Design–A/E Deadline means the date that is a fixed number of days after receipt of a Schematic Design–THC NOA, and by which date A/E shall prepare and deliver the proposed Schematic Design Package to THC and CMR.

1.1.99. Schematic Design–A/E Reply means such written evidence that, in THC’s sole opinion, adequately resolves all Schematic Design–THC Comments and Schematic Design–CMR Comments.

1.1.100. Schematic Design–A/E Reply Deadline means the date that is a fixed number of days after the Schematic Design–Comments Deadline, and by which date A/E shall prepare and deliver the Schematic Design–A/E Reply.

1.1.101. Schematic Design–CMR Comments means any comments, revisions, clarifications, and the like from CMR to the proposed Schematic Design Package.

1.1.102. Schematic Design–Comments Deadline means the date that is a fixed number of days after the Schematic Design–Review Deadline, and by which date THC shall prepare and deliver any Schematic Design–THC Comments to A/E and CMR, and CMR must prepare and deliver any Schematic Design–CMR Comments to THC and A/E.

1.1.103. Schematic Design Drawings means, at a minimum, a Site development plan, building plans, elevations, sections, and perspective sketches sufficient to convey comprehensive design intent.

1.1.104. Schematic Design Package means the combination of: (i) Schematic Design Drawings; (ii) an outline summary of the areas within the proposed Project, such summary corresponding to the general categories in the space allocation outlined in the Design Program; (iii) a description of the building and general Site development that shall include an overview of proposed exterior architectural materials and structural systems together with the MEP systems and services being contemplated; and (iv) an Opinion of Probable Construction Cost that demonstrates conformity with the Budget, all of which, in THC’s sole opinion, must be in satisfactory quality and detail.

1.1.105. Schematic Design Phase Cost Estimate means the Opinion of Probable Construction Costs in ASTM UNIFORMAT II, updated through the Schematic Design–Review Deadline.

1.1.106. Schematic Design–Review Deadline means the date that is a fixed number of days after the Schematic Design–A/E Deadline, and by which A/E and CMR shall meet with THC to review the proposed Schematic Design Package, and A/E shall prepare and deliver its Schematic Design Phase Cost Estimate to THC and CMR, and CMR shall prepare and deliver its Schematic Design Phase Cost Estimate to THC and A/E.

1.1.107. Schematic Design–THC Comments means any comments, revisions, clarifications, and the like from THC to the proposed Schematic Design Package.

1.1.108. Schematic Design–THC NOA means a written notice of authorization to proceed with preparation of the Schematic Design Package.

1.1.109. Schematic Design–THC NOA Deadline means the date that is a fixed number of days after the Initial Conceptual Drawings–A/E Reply Deadline, and by which date THC should deliver a Schematic Design–THC NOA to A/E with a copy to CMR.

1.1.110. Scope of Services means the Construction Management Services as set out in Section 2.2 below.

1.1.111. Security Bond has the same meaning as described in UGC Article 5, and shall be in the form of an approved surety bond, cash, or other immediately available funds.

1.1.112. Shop Drawing(s) means all drawings, diagrams, illustrations, schedules, samples, and other data or information which are specifically prepared or assembled by or for CMR and submitted by CMR to illustrate some portion of the Work.

1.1.113. Site means the lands or areas indicated in the Contract Documents as being furnished by THC upon which the Work is to be performed, including rights-of-way and easements for access thereto, and such other lands furnished by THC which are designated for the use of the CMR.

1.1.114. Special Conditions has the same meaning as defined in UGC, Article 1.

1.1.115. Specifications has the same meaning as defined in UGC, Article 1.

1.1.116. Statement of Guaranteed Maximum Price (hereinafter referred to as “Statement of GMP”) means a written statement setting forth the proposed total, not to exceed, cost of construction, which shall be composed of the following separately identified costs: (i) the Pre-Construction Management Fee; (ii) the General Conditions Fee;

(iii) the Cost of the Work enumerated, at a minimum, in categories by CSI specification number and including all allowances and the CMR Contingency; (iv) the Construction Management Fee; and (v) the THC Controlled Contingency.

II. DESCRIPTION OF PROJECT AND SCOPE OF SERVICES

2.1. Description of Project. The project for which CMR agrees to provide Construction Management Services is the Visitor Center Structural Repairs at the Magoffin Home State Historic Site located in El Paso, Texas (hereinafter referred to as the “Project”). The scope of the project shall be as generally described in RFP # 808-25-250510, Section II Project Description, and will be further defined during the Pre-Construction Phase described below.

2.2. Scope of Services. CMR agrees to timely deliver the Construction Management Services described in this Contract whether the Project is to be completed as a single package or in multiple combinations of packages. In the event of any material conflict between the duties and responsibilities of the CMR as set out in the UGC, any supplementary general conditions, any special conditions, or in any other Contract Documents, and as set out in this Contract, the duties and responsibilities set out in this Contract shall control to the extent of any such material conflict. Advance notice of all deadlines discussed below shall be delivered to CMR.

2.2.1. Pre-Construction Phase. Upon receipt of Notice to Proceed with Pre-Construction Activities, CMR shall commence, and timely complete, the following pre-construction management services for the Project:

2.2.1.1. Project Assessment. No later than the Project Assessment Deadline, CMR shall timely complete the following assessment tasks for the Project:

2.2.1.1.1. Consult with staff of THC and A/E as may be directed by THC, and become thoroughly familiar with: (i) the Site; and (ii) any and all relevant and existing Site and Facilities studies;

2.2.1.1.2. Reaffirm the assignment and identity of CMR’s Project Manager;

2.2.1.1.3. Provide THC and A/E with the opinion of CMR as to the suitability of the proposed site and contemplated improvements, selection of materials, building systems and equipment;

2.2.1.1.4. Provide recommendations to THC and A/E that are consistent with the Design Program and the Initial Conceptual Drawings on: (i) constructability; (ii) availability of materials and labor; (iii) time requirements for procurement, installation and construction scheduling issues, including phased construction; (iv) accelerated or fast-track scheduling; (v) provisions for temporary facilities; and (vi) factors related to construction costs including, but not limited to, construction budget requirements and limitations, costs of alternative designs or materials, life-cycle data, and possible cost reductions, each in terms of the other; and

2.2.1.1.5. Timely review and become thoroughly familiar with the Budget proposed by THC and advise THC if, in the opinion of CMR, the Budget is adequate in terms of categories and values so as to allow for the design and timely construction of the Project as contemplated.

2.2.1.1.5.1. If, in the opinion of CMR, the Budget is adequate, CMR shall confirm same in writing. If, however, in the opinion of CMR, the Budget proposed by THC is inadequate or insufficient, CMR shall advise THC and A/E of all recommendations as to appropriate adjustments as would be necessary to enable CMR to confirm the adequacy of the Budget. If the THC declines to make the adjustments advised by CMR such efforts should fail, THC, at its option, may: (i) waive the provisions of this subsection; or (ii) terminate this Contract.

2.2.1.1.5.2. The parties acknowledge and agree that subsequent changes in Design Program or scope of the Project may be cause to modify and/or amend the Budget. Any such modification or amendment to the Budget must be authorized by THC in writing.

2.2.1.2. Initial Conceptual Drawings/Schematic Design. NOT USED.

2.2.1.3. Design Development. CMR shall timely deliver to THC the following design development pre-construction services for the Project:

2.2.1.3.1. Meetings. Attend and actively participate in all meeting(s) between A/E and THC wherein the proposed DD Documents will be reviewed, and prepare and deliver the DD Phase Cost Estimate at the first of such meetings.

2.2.1.3.2. Active Participation. Actively participate in the efforts of THC and A/E to develop the final DD Documents. Such participation must be sufficient to enable CMR to understand the intended project scope, construction and phasing needs, impacts to facility(ies) operation, drawings and specifications prepared to date, and therefrom to accurately estimate construction costs.

2.2.1.3.3. A/E Delivers Proposed DD Documents. No later than the DD Documents–A/E Deadline, and based upon the approved Schematic Design Package, A/E shall prepare and deliver the proposed DD Documents to THC for review and approval, and to CMR for review.

2.2.1.3.4. Meet to Review DD Documents and Updated Cost Estimate. No later than the DD Documents–Review Deadline, CMR shall:

2.2.1.3.4.1. meet with THC and A/E to review the proposed DD Documents; and

2.2.1.3.4.2. prepare and deliver the DD Phase Cost Estimate to THC and A/E. If such estimated costs exceed the Budget by more than fifteen percent (15%), CMR shall consult with THC and A/E to identify potential design and/or Specification modifications that could result in the cost estimate being in compliance with the Budget.

2.2.1.3.4.3. If alternative materials and systems are suggested by THC, A/E, or CMR, CMR shall promptly provide cost evaluations of those alternative materials and systems.

2.2.1.3.5. Formal Comments. No later than the DD Documents–Comments Deadline, THC shall deliver any DD Documents–THC Comments to A/E and CMR, and CMR shall prepare and deliver any DD Documents–CMR Comments to THC and A/E.

2.2.1.3.6. A/E’s Reply. No later than the DD Documents–A/E Reply Deadline, A/E shall:

2.2.1.3.6.1. prepare and deliver the DD Documents–A/E Reply to THC and CMR; and

2.2.1.3.6.2. develop bidders’ interest in the Project.

2.2.1.4. Construction Documents. CMR shall timely deliver to THC the following Construction Documents and pre-construction services for the Project:

2.2.1.4.1. Meetings. CMR shall attend and participate in all meetings between A/E and THC wherein the Construction Documents will be reviewed.

2.2.1.4.2. Active Participation. CMR shall actively participate in the efforts of THC and A/E to develop approved Construction Documents.

2.2.1.4.3. A/E Delivers Proposed 50% Complete Construction Documents. No later than the Construction Documents–50% A/E Deadline, and based on the approved DD Documents, A/E shall prepare and deliver the fifty percent (50%) complete Construction Documents to THC and CMR.

2.2.1.4.4. Meet to Review 50% Complete Construction Documents and Updated Cost Estimate. No later than the Construction Documents–50% Review Deadline, CMR shall:

2.2.1.4.4.1. meet with THC to review the fifty percent (50%) complete Construction Documents; and

2.2.1.4.4.2. prepare and deliver the Construction Documents–50% Cost Estimate to THC and A/E. If such updated cost estimate exceeds the Budget by more than ten percent (10%), CMR shall consult with THC and A/E to identify further potential design and/or Specification modifications that could result in the Construction Documents Phase Cost Estimate being in compliance with the Budget.

2.2.1.4.4.3. If alternative materials and systems are suggested by THC, A/E, or CMR, CMR shall promptly provide cost evaluations of those alternative materials and systems.

2.2.1.4.5. Formal Comments. No later than the Construction Documents–50% Comments Deadline, THC shall deliver any Construction Documents–50% THC Comments to A/E and CMR, and CMR must prepare and deliver any Construction Documents–50% CMR Comments to THC and A/E.

2.2.1.4.6. A/E’s Reply. No later than the Construction Documents–50% A/E Reply Deadline, A/E shall deliver the Construction Documents–50% A/E Reply to THC and CMR.

2.2.1.4.7. A/E Delivers Proposed 90% Complete Construction Documents. No later than the Construction Documents–90% A/E Deadline, A/E shall prepare and deliver the ninety percent (90%) complete Construction Documents to THC and CMR.

2.2.1.4.8. Meet to Review 90% Complete Construction Documents and Updated Cost Estimate. No later than the Construction Documents–90% Review Deadline, A/E shall:

2.2.1.4.8.1. meet with THC and CMR to review the ninety percent (90%) complete Construction Documents; and

2.2.1.4.8.2. prepare and deliver the Construction Documents–90% Cost Estimate to THC and A/E. If such updated cost estimate exceeds the Budget by more than five percent (5%), CMR shall consult with THC and A/E to identify further potential design and/or Specification modifications that could result in the cost estimate being in compliance with the Budget.

2.2.1.4.8.3. If alternative materials and systems are suggested by THC, A/E, or CMR, CMR shall promptly provide cost evaluations of those alternative materials and systems.

2.2.1.4.9. Formal Comments. No later than the Construction Documents–90% Comments Deadline, THC shall deliver any Construction Documents–90% THC Comments to A/E and CMR, and CMR must prepare and deliver any Construction Documents–90% CMR Comments to THC and A/E.

2.2.1.4.10. A/E’s Reply. No later than the Construction Documents–90% A/E Deadline, A/E shall deliver the Construction Documents–90% A/E Reply to THC and CMR.

2.2.1.4.11. A/E Delivers Proposed 100% Complete Construction Documents. No later than the Construction Documents–100% A/E Deadline, and based on the approved ninety percent (90%) complete Construction Documents, A/E shall prepare and deliver three (3) copies and one (1) CAD copy of the one hundred percent (100%) complete Construction Documents to THC and CMR.

2.2.1.4.12. Meet to Review 100% Complete Construction Documents and Updated Cost Estimate. No later than the Construction Documents–100% Review Deadline, CMR shall:

2.2.1.4.12.1. meet with THC and A/E to review the one hundred percent (100%) complete Construction Documents; and

2.2.1.4.12.2. prepare and deliver the Construction Documents–100% Cost Estimate to THC and A/E.

2.2.1.4.12.2.1. If such updated cost estimate exceeds the Budget, CMR shall consult with THC and A/E to identify further potential design and/or Specification modifications that could result in the cost estimate being in compliance with the Budget.

2.2.1.4.12.2.2. If alternative materials and systems are suggested by THC, A/E, or CMR, CMR shall promptly provide cost evaluations of those alternative materials and systems.

2.2.1.4.13. Formal Comments. No later than the Construction Documents–100% Comments Deadline, THC shall deliver any Construction Documents–100% THC Comments to A/E and CMR, and CMR must prepare and deliver any Construction Documents–100% CMR Comments to THC and A/E.

2.2.1.4.14. A/E’s Formal Reply. No later than the Construction Documents–100% A/E Reply Deadline, A/E shall deliver the Construction Documents–100% A/E Reply to THC and CMR.

2.2.1.5. GMP Proposal.

2.2.1.5.1. Within thirty (30) days of the date of issuance of the Drawings and Specifications by A/E, CMR shall publicly advertise and receive bids or proposals 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 the UGC, any Supplementary General Conditions, and/or Special Conditions. THC at its option may choose to participate in and/or review all bids received if deemed necessary by THC Project Manager. Note: Any HUB requirements stated in Attachment N-1 HUB Subcontracting Plan must be met by CMR.

2.2.1.5.1.1. CMR may seek to perform portions of the Work itself if the CMR submits its bid or proposal for said portions of the Work in the same manner as all other trade contractors or subcontractors at least twenty-four (24) hours prior to the opening of the bids or proposals from the trade contractors or subcontractors, and if THC, in its sole discretion, determines that CMR’s bid or proposal provides the best value for THC or Using Agency.

2.2.1.5.1.2. At its option THC may require that the CMR not open any bids or proposals, or otherwise ascertain their contents, outside the physical presence of an authorized representative of THC.

2.2.1.5.1.3. A bid tabulation must be prepared or otherwise recorded contemporaneously with the opening of the bids or proposals, which bid tabulation must include, but shall not be limited to, the following information as to each bid or proposal:

2.2.1.5.1.3.1. the full name, address, and contact information for the trade contractor or subcontractor;

2.2.1.5.1.3.2. a reasonably detailed description of the scope of the Work to which the bid or proposal applies; and

2.2.1.5.1.3.3. the amount of the bid or proposal.

2.2.1.5.1.4. CMR shall comply with requirements in Article 4 of the UGC regarding the Historically Underutilized Business program.

2.2.1.5.2. Within forty-five (45) days of the date of issuance of the Drawings and Specifications by A/E, CMR shall submit to THC a GMP Proposal in substantially the same form as “Attachment D,” a digital copy of which shall be incorporated herein by reference for all purposes in PDF on the flash drive, and as set forth below.

2.2.1.5.2.1. To the extent that the Drawings and Specifications are anticipated to require further development by A/E, CMR shall provide an allowance for such further development in the GMP that is consistent with the Contract Documents and reasonably inferable therefrom, which allowance shall be considered to be part of the CMR Contingency. Such further development does not include such things as changes in scope, systems, kinds and quality of materials, finishes or equipment, all of which, if required, can be incorporated only by Change Orders.

2.2.1.5.3. CMR shall include with each GMP Proposal:

2.2.1.5.3.1. a written statement of its basis for calculation, which shall include the following:

2.2.1.5.3.1.1. a list of the Drawings, a digital copy of said list and the Drawings shall be incorporated herein by reference for all purposes in PDF on the flash drive and labeled therein as “Exhibit E” and a list of Specifications and the Specifications, including all addenda thereto, shall be included in and made a part of the Project Manual, a digital copy of which Project Manual shall be incorporated herein by reference for all purposes in PDF on the flash drive and labeled therein as “Attachment F,” both of which were used in preparation of the GMP Proposal;

2.2.1.5.3.1.2. the C&A, a digital copy of which shall be incorporated herein by reference for all purposes in PDF on the flash drive and labeled therein as “Attachment G,” created by CMR in the preparation of the GMP Proposal, including any assumptions, to supplement the information provided by THC and contained in the Drawings and Specifications;

2.2.1.5.3.1.3. a Statement of GMP, which sets out, at a minimum, statements that separately identify the following costs: (i) the Pre-Construction Management Fee; (ii) the General Conditions Fee; (iii) the Cost of the Work enumerated, at a minimum, in categories by CSI specification number and including all allowances and the CMR Contingency; (iv) the Construction Management Fee; and (v) the THC Controlled Contingency, a digital copy of which shall be incorporated herein by reference for all purposes in PDF on the flash drive and labeled therein as “Attachment H”;

2.2.1.5.3.1.4. a Statement of the Proposed Date of Substantial Completion (“Statement of Date of Substantial Completion”) upon which the proposed GMP is based, a digital copy of which shall be incorporated herein by reference for all purposes in PDF on the flash drive and labeled therein as “Attachment I”; and

2.2.1.5.3.1.5. the deadline on which the GMP Proposal will automatically expire without further notice; and

2.2.1.5.3.2. the initial Work Progress Schedule that specifically includes the timeline set out in the digital copy thereof which is incorporated herein by reference for all purposes on the flash drive and labeled therein as “Attachment J”;

2.2.1.5.3.2.1. CMR shall obtain A/E’s concurrence with the portion of the initial Work Progress Schedule relating to the delivery of A/E’s services.

2.2.1.5.3.2.2. The initial Work Progress Schedule shall coordinate and integrate CMR’s services, A/E’s services, and all other THC contractors’ services, THC’s responsibilities, and identify items that could affect the Project’s timely completion.

2.2.1.5.3.2.3. Upon execution of each GMP Amendment, a copy of a Work Progress Schedule, as approved and accepted by THC, shall be incorporated into the Contract and substituted for the original initial Work Progress Schedule, and a digital copy of which shall be added to the flash drive.

2.2.1.5.3.2.4. All updated Work Progress Schedules shall include (i) the components of the Work; (ii) times of commencement and completion required of each Subcontractor; (iii) ordering and delivery of products, including those that must be ordered well in advance of construction; (iv) a clear delineation of the critical path; and (v) the substantial completion requirements of THC.

2.2.1.5.4. CMR shall meet with THC and A/E to review the GMP Proposal. In the event that THC or A/E discovers any inconsistencies or inaccuracies in the information presented, they shall promptly notify CMR, who shall make appropriate adjustments to the GMP Proposal, its basis, or both.

2.2.1.5.5. THC shall review the bids and CMR’s recommendations, and with advice of CMR and A/E, THC shall identify exceptions that may result in changes to bid selections and overall GMP. CMR shall not be required to contract with anyone to whom CMR has a reasonable objection.

2.2.1.5.6. If THC notifies CMR that THC has accepted the GMP Proposal in writing before the deadline specified in the GMP Proposal, the GMP Proposal shall be deemed effective without further action by CMR.

Following acceptance of the GMP Proposal, THC and CMR shall immediately execute a GMP Amendment in substantially the same form as the digital copy of which is incorporated herein by reference for all purposes in PDF on the flash drive and labeled therein as “Attachment K.”

2.2.1.5.6.1. In the event CMR fails to timely: (i) execute and deliver the GMP Amendment to THC; or

(ii) deliver the required payment…