ESBD_493585_1772569283687_Attachment D - Sample CSP Agreement for Delegated Projects 1.28.2022.pdf

CSP Agreement 01.28.2022 Final Draft Page 1

AGREEMENT

BETWEEN OWNER AND CONTRACTOR

(Competitive Sealed Proposal – Delegated Projects)

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

The Owner (the “Owner”):

The Board of Regents of The Texas State University System c/o President’s Name, President

Component

Address

City, Texas, Zip and the General Contractor (the “Contractor”):

Firm Name

City, State, Zip

Phone: ___________

Fax: _____________

Texas Tax Account No.: ________________________ for the following Project (the “Project”):

Name of Project

Component’s Campus

City, Texas

Component: __________________________________

Owner’s Project Number: _______________________

Architect/Engineer (the “A/E”):

Firm Name

City, State, Zip

Phone: ___________

Fax: _____________

The Owner and Contractor agree as follows:

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TABLE OF CONTENTS

ARTICLE

1 SCOPE OF WORK

1.1 In General

1.2 Alternates

2 CONTRACT DOCUMENTS

2.1 Contract Documents

2.2 The Contract / Integration

2.3 Unenforceable or Invalid Term / Severability

2.4 Captions

2.5 Terms Interchangeable

2.6 Conflict Between Contract Documents

3 DEFINITIONS

3.1 “Applicable Law” or “applicable laws”

3.2 “Component”

3.3 “Construction Documents”

3.4 “Contract Sum”

3.5 “Contract Time Requirements”

3.6 “CPM Schedule”

3.7 “Electronic Copy”

3.8 “Final Completion”

3.9 “Owner’s Designated Representative” or “ODR”

3.10 “Owner’s Specifications”

3.11 “Project Schedule”

3.12 “Project Team”

3.13 “Record Documents”

3.14 “Subcontractor”

3.15 “Substantial Completion”

3.16 “The Uniform General Conditions of The Texas State University System” or “TSUS UGC” or

“UGC”

3.17 “Work”

3.18 “Work Progress Schedule”

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4 CONTRACTOR’S GENERAL RESPONSIBILIES

4.1 In General

4.2 Cooperation

4.3 Designation of Representatives

4.4 Procedures

4.5 Tracking System

4.6 Multiple Completion Times

4.7 Partnering

4.8 Employees and Consultants

4.9 HUB Compliance

4.10 Computer Project Management Software

4.11 Safety

4.12 Regular Project Meetings

4.13 Interim Progress Meetings

4.14 Owner-Procured Material and Equipment

4.15 Performance and Payment for the Work

4.16 Permits and Approvals

4.17 Testing

4.18 Coordination of the Work

4.19 Contractor’s Means and Methods

4.20 Warranties and Guarantees

4.21 Record Documents

5 OWNER’S RESPONSIBLITES

5.1 Designation of A/E

5.2 Designation of ODR

5.3 Surveys

5.4 Testing

5.5 Services

5.6 Furnishing of Required Information and Services

5.7 Inspectors

5.8 Rejection of Work

6 OWNERSHIP AND USE OF DOCUMENTS

6.1 Contractor’s Limited Authority to Use Documents

6.2 Use of Documents to Meet Regulatory Requirements

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7 TIME

7.1 Essential Element

7.2 Timeliness of Performance

7.3 CPM Schedule

8 PAYMENTS

8.1 General Requirements

8.2 Construction Payments

9 CONTRACT SUM

10 PRE-EXISTING CONDITIONS AND DESIGN ERRORS AND OMMISSIONS

10.1 Existing Improvements and Conditions

10.2 Design Errors or Omissions

11 BONDS AND INSURANCE

11.1 In General

11.2 Bonds

11.3 Insurance

11.4 Insurance to be Kept in Effect

11.5 Owner’s Right to Make Adjustments

11.6 Contractor to Provide Copies of Policies

11.7 Cost of Additional Coverage to be Borne by Contractor

11.8 Insurance Required of Consultants

12 DISPUTE RESOLUTION

13 PROJECT TERMINATION AND SUSPENSION

13.1 Termination for Convenience by Owner

13.2 Recovery upon Termination (other than for fault of the Contractor)

13.3 No Release of Liability

13.4 Rights to Use Documents, Ideas, and Designs

13.5 Suspension or Abandonment

13.6 Other Grounds of Suspension or Termination

14 INDEMNITY

14.1 In General

14.2 Patent or Copyright Infringement

14.3 Survival

15 SPECIAL WARRANTIES

15.1 Reliance of Owner

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15.2 Standard of Care

15.3 No Diminution by Reason of Owner’s Review

15.4 Licensing and Registration

15.5 Duty to Advise Owner

15.6 Good Business Practices

15.7 Authority to Execute Agreement

15.8 Limitation of Owner’s Liability

15.9 No Waiver

15.10 Survival

16 CERTIFICATION OF NO ASBESTOS CONTAINING MATERIALS OR WORK

16.1 In General

16.2 Certification Statement with Submittals

16.3 Licensing

16.4 Affidavit Required

16.5 Provision of SDS

17 MISCELLANEOUS PROVISIONS

17.1 Public Information Pertaining to the Official Business of Governmental Bodies and to Contracts by Certain

State Governmental Entities that Involve the Exchange or Creation of Public Information.

17.2 No Assignment or Delegation by Contractor

17.3 Records and Accounting Standards and Principles

17.4 Family Code Certification

17.5 Eligibility Certification

17.6 Franchise Tax Certification

17.7 Debts Owed to State

17.8 Entire Agreement; Modifications

17.9 Governing Law and Venue

17.10 Waivers

17.11 Binding Effect

17.12 Appointment

17.13 Method of Giving Notice

17.14 Illegal Dumping

17.15 Conflict of Interest Certification

17.16 Ethics Matters, No Financial Interest

17.17 Disclosure of Interested Parties

17.18 State Auditor’s Office

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17.19 Nondiscrimination

17.20 Non-Boycott Israel Verification

17.21 Contractor Certification regarding Business with Certain Countries and Organizations

17.22 Domestic Iron and Steel Certification

17.23 179D Benefit Allocation

17.24 Cybersecurity Training Program

17.25 Non-Discrimination of Firearm Industry Verification

17.26 Anti-Boycott Energy Companies Verification

17.27 Vaccine Passport Prohibition

17.28 Critical Infrastructure Affirmation

17.29 Other Provisions Required by Applicable Law

18 OTHER TERMS AND CONDITIONS

18.1 Schedule and Time of Completion

18.2 Liquidated Damages

18.3 Notices

18.4 Party Representatives

18.5 Interim Record Drawings and Specifications

19 EXHIBITS

List of Exhibits

A. Special Conditions of the Contract

B. Forms for Surety Bonds

C. Prevailing Wage Rates

D-1. Project Schedule

D-2 Contractor’s Initial CPM Schedule

E. HUB Subcontracting Plan

F. Regular Project Meeting Agenda

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ARTICLE 1 SCOPE OF WORK

1.1 In General. The Contractor has overall responsibility for and shall furnish all of the materials, equipment, tools and labor as necessary and reasonably inferable to complete the

Work of the Project as it is depicted and described in the Contract Documents for the Project, providing its best efforts to complete the Project in an expeditious and economical manner consistent with the Owner’s interests.

[1.2 Alternates. The following Alternates fully described in the Drawings and Specifications, are included as a part of this Agreement and included in the Contract Sum.

1.2.1 Add/Deduct Alternate No. X “___”]

ARTICLE 2 CONTRACT DOCUMENTS

2.1 Contract Documents. The Contract Documents consist of:

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

Agreement and expressly incorporated herein, including but not limited to any Special

Conditions of the Contract and Owner’s Specifications;

b. The Uniform General Conditions for Construction Contracts of The Texas State

University System (“TSUS UGC” or “UGC”) as modified by this Agreement and the

Special Conditions of the Contract (the “Special Conditions”), attached hereto as

Exhibit A;

c. The Drawings, Specifications, details and other documents developed by A/E and issued for construction with the Owner’s approval;

d. The Drawings and Specifications developed and issued for construction with the

Owner’s approval by Owner’s other consultants, if any;

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

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

g. The Contractor’s HUB Subcontracting Plan, and any amendments thereto, when accepted by the Owner, attached hereto as Exhibit E.

2.2 The Contract / Integration. These Contract Documents form the entire and integrated

Contract between Owner and Contractor and supersede all prior negotiations, representations, or agreements, written or oral. Neither this Agreement nor any of its provisions can be waived, modified, amended, or altered except by a written document signed by Contractor and Owner.

2.3 Unenforceable or Invalid Term / Severability. Should any term or provision of this

Agreement be held invalid or unenforceable in any respect, the remaining terms and provisions shall not be affected, and this Agreement shall be construed as if the invalid or unenforceable term or provision had never been included.

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2.4 Captions. The captions of paragraphs in this Agreement are for convenience only and shall not be considered or referred to in resolving questions of interpretation or construction.

2.5 Terms Interchangeable. The term “Contractor” is interchangeable with the terms

“Construction Manager” (“CM”) and “General Contractor”, or other similar terms used in the various parts of the Contract Documents, including the UGC and Special Conditions.

2.6 Conflict Between Contract Documents. If, and to the extent of, any inconsistency, ambiguity, or discrepancy in the Contract Documents, precedence shall be given to the

Contract Documents in the following order of priority: (1) written amendments to this

Agreement entered into in accordance with the requirements hereof after execution of this

Agreement with the amendment bearing the latest date taking precedence; (2) this

Agreement, including the exhibits attached hereto and incorporated fully herein; (3) the

UGC; (4) the final Drawings and Specifications developed by the A/E and such other consultants of the Owner incorporated into the Contract Documents; (5) the preliminary

Drawings and Specifications incorporated into the Contract Documents, with those bearing the latest date taking precedence and (6) any proposals submitted by the Contractor in the procurement for the Project and other documents identified in the Agreement as Contract

Documents which have not been incorporated into the Agreement. To clarify the foregoing, the terms of the Agreement (and its Exhibits) shall control over the UGC and the terms of the Agreement (and its Exhibits) and the UGC shall control over any terms in the Drawings or Specifications developed by the A/E and such other consultants of the

Owner inconsistent therewith

ARTICLE 3 DEFINITIONS

The terms, words and phrases used in the Contract Documents shall have the following meanings, as supplemented by any other definitions provided in the UGC. In the event of a conflict between a definition as set forth below and a definition in the UGC, the definition set forth below shall control.

3.1 “Applicable Law” or “applicable laws” means all laws, statutes, ordinances, regulations, guidelines, or requirements now in force or hereafter enacted by any applicable local, state, or federal governmental authority relating to or affecting the Project or arising from this

Agreement, including, if and as applicable, those applicable laws as further identified in the TSUS UGC.

3.2 “Component” means the higher education institution member of The Texas State

University System identified on page one of this Agreement and on whose campus the

Project is to be located.

3.3 “Construction Documents” means, collectively, the UGC, Owner’s Special Conditions and

Specifications, the Drawings, Specifications, details, Change Orders, and other documents prepared by the A/E, 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 required for construction of the Work that are acceptable to the Owner.

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3.4 “Contract Sum” means the total amount of all compensation payable to the Contractor for the Contractor’s performance of the Agreement. The Contract Sum shall be the stipulated sum set forth in Article 9 hereto, subject to adjustment for Change Orders. Any costs that exceed the Contract Sum shall be borne solely by the Contractor without reimbursement by Owner.

3.5 “Contract Time Requirements” means the requirements for the achievement of any major or “Critical” Milestones and Substantial Completion and Final Completion of designated portions of the Work or the entire Work of the Project as may be expressly required in the Project Schedule or any Owner-approved CPM Schedule or as otherwise expressly required by the Contract Documents.

3.6 “CPM Schedule” means the Critical Path Method Schedule which the Contractor is required to prepare and update in accordance with Paragraph 7.3 for Owner’s approval.

3.7 “Electronic Copy” means a copy of the document in the software medium in which the document was created for initial approval and subsequent required updates.

3.8 “Final Completion” means the actual completion of the Work (the entire Work or the designated portion thereof), including any extras or Work authorized by Change Orders reasonably required or contemplated under the Contract, other than warranty work or replacement or repair of the Work (after the initial acceptance by the Owner) performed under the Contract. References to “Final Completion of the Work” in the Contract

Documents shall mean the Final Completion of the entire Work required under the

Contract, except as otherwise expressly provided therein.

3.9 “Owner’s Designated Representative” or “ODR” means the person designated by the

Owner to act as the Owner’s Designated Representative pursuant to Paragraph 5.2 and identified in Paragraph 18.4.1.

3.10 “Owner’s Specifications” means the construction and contract administration requirements and standards detailed in the Owner’s Construction Project Division 1

Specifications, if any, attached to the Specifications, and incorporated fully herein.

3.11 “Project Schedule” (also referred to as the “Owner’s Project Schedule”) means the schedule incorporated into the Contract Documents for the design and construction of the

Project initially prepared by the Owner and attached hereto as Exhibit D -1, reflecting various milestone and completion dates, and which may be subsequently modified by mutual agreement between the Owner and Contractor to reflect any refinement in its requirements.

3.12 “Project Team” means the Owner, Contractor, A/E 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.

3.13 “Record Documents” mean the drawing set, Specifications, and other materials maintained by the Contractor that documents all addenda, A/E’s Supplemental

Instructions, Change Orders, and postings and markings that record the “as-constructed” conditions of the Work and all changes made during construction. Record Documents is

CSP Agreement 01.28.2022 Final Draft Page 10 distinguishable from “Record Drawings” which, if required by the Contract Documents, are prepared by the A/E as part of its Construction Administration Services and reflect the on-site changes the Contractor noted in the “As-Built” drawings.

3.14 “Subcontractor” means a person or entity that has an agreement with or through the

Contractor to perform any portion of the Work. The term Subcontractor includes what is commonly referred to as a “trade contractor” and a “supplier” (who furnishes materials or equipment only) and Sub-Subcontractors, except to the extent clearly not applicable in the context of its use in the Contract Documents. The term Subcontractor does not include the

A/E or any person or entity hired directly by the Owner for design or construction services.

The term “Sub-subcontractor” refers to a trade contractor, subcontractor, or supplier contracting under or directly with a Subcontractor or another Sub-subcontractor (of any tier).

3.15 “Substantial Completion” shall have the meaning as set forth in UGC, except as otherwise provided in the Special Conditions. References to “Substantial Completion of the Work” in the Contract Documents shall mean the Substantial Completion of the entire

Work required under the Contract, except as otherwise expressly provided therein.

3.16 “The Uniform General Conditions of The Texas State University System” or “TSUS

UGC” or “UGC” shall mean the Uniform General Conditions for Construction Contracts issued by the State of Texas, published date of December 1, 2021, a copy of which is published on the Owner’s website (Capital Projects webpage), and as may be modified by this Agreement and the Special Conditions attached to this Agreement as Exhibit A.

3.17 “Work” means the provision of all services, labor, materials, supplies, and equipment that are required of the Contractor to complete the Project in accordance with the requirements of the Contract and the Contract Documents. The Work includes the required construction described in the Contract Documents, additional work required by any Change Orders, and any other work reasonably inferable from the Contract Documents. The term “reasonably inferable” includes the understanding of the parties that some minor details of the Work may not be shown on the Drawings or included in the Specifications, but they are included in the Work if they are usual and customary components of the Work for a project of the type depicted in the Contract Documents and they are needed to produce a complete and useable facility.

3.18 “Work Progress Schedule” means the CPM Schedule prepared and maintained in accordance with the Critical Path Method and the requirements of the Agreement, the

Special Conditions (if any), and the UGC, reflecting the Contractor’s actual progress of the construction of the Work and the scheduled activities and current plans for completing the

Work and updated as required in Paragraph 7.3.

ARTICLE 4 CONTRACTOR’S GENERAL RESPONSIBILITIES

The Contactor shall perform the following tasks:

4.1 In General. All services specifically allocated to the Contractor by the Contract

Documents as well as those services reasonably inferable from the documents that are

CSP Agreement 01.28.2022 Final Draft Page 11 necessary for completion of the Work of the Project. The Contractor was selected by the

Owner based on its stated qualifications and experience, and therefore, the Contractor agrees to perform all of its services using its best efforts, skills, judgments and abilities.

4.2 Cooperation. Cooperate with all members of the Project Team and endeavor to further the interests of the Owner and the Project. The Contractor shall furnish its services and provide its best efforts to complete the Project in an expeditious and economical manner consistent with the Owner’s interests.

4.3 Designation of Representatives. Designate in writing to the Project Team those representatives who are authorized to act on the Contractor’s behalf with respect to the

Project. Such written designations shall include the limitations of each representative’s authority. Without limiting the foregoing, Contractor shall designate in writing (see

Paragraph 18.4.3) a representative who is responsible for the day-to-day management of the Work and who will be the Owner’s primary contact during construction and shall be available as required for the benefit of the Project and the Owner. The designated representative shall be authorized to act on behalf of and bind the Contractor in all matters related to the Contract including, but not limited to, execution of Change Orders and submission of Applications for Payment.

4.4 Procedures. Establish procedures for effective communication and coordination among the Project Team, Subcontractors, separate contractors, and others regarding the construction of the Project, and implement and continuously modify such procedures as necessary.

4.5 Tracking System. Establish and maintain a numbering and tracking system for all Project records, including changes, requests for information, submittals, and supplemental instructions and provide updated records at each Owner’s meeting and at other times when requested.

4.6 Multiple Completion Times. Cooperate fully if Owner decides to “Fast Track” and establish “Multiple Completion Times”. If the Owner elects these approaches, Contractor shall organize and perform its services to be most appropriate and efficient for each stage of

Project development. In these circumstances, each stage of the Project may have a unique schedule for completion and a separate specific cost as agreed to in writing by the Contractor and Owner.

4.7 Partnering. Attend and participate in Owner’s “Partnering” program, if applicable.

4.8 Employees and Consultants. Identify to the Owner all of the employees, other personnel and consultants that it will assign to the Project. Contractor shall not change their assignments without the Owner’s written consent, which consent shall not be unreasonably withheld. Contractor shall promptly notify the Project Team if these assignments change for reasons beyond the control of the Contractor. Contractor shall not assign or retain on the Project any person or entity to whom Owner reasonably objects.

4.9 HUB Compliance. Proactively comply with the Owner’s established policies regarding the utilization of Historically Underutilized Businesses (“HUB” or “HUBs”) and all applicable administrative rules and statutes relating to utilization of HUBs by Owner for

CSP Agreement 01.28.2022 Final Draft Page 12 the Project and adhere to the HUB Subcontracting Plan, and any amendments thereto, submitted by Contractor and approved by Owner. No changes to the HUB Subcontracting

Plan can be made by the Contractor without the written approval of Owner.

4.10 Computer Project Management Software. Contractor shall use the Owner’s designated project management software system to transact, correspond, and maintain project related correspondence and documentation throughout the life of the Project including Project close-out and final payments.

4.11 Safety.

4.11.1 Contractor shall plan, initiate, maintain, and supervise all safety precautions and programs in connection with the Work of the Project. The Contractor’s safety program shall comply with all applicable requirements of the UGC, the Owner’s

Specifications (if any), the Occupational Safety and Health Act of 1970 and all other applicable federal, state, and local laws and regulations. The Contractor shall be solely responsible for on-site safety. Neither Owner, nor A/E, nor any other member of the Project Team shall have responsibilities for on-site safety except for safety issues arising solely from their own negligent acts or omissions.

4.11.2 Contractor shall provide recommendations and information to Owner and A/E regarding the assignment of responsibilities for safety precautions and programs, temporary Project facilities, and equipment, materials, and services for common use of the Subcontractors. Contractor shall verify that appropriate safety considerations and provisions are included in the Construction Documents and that the Work envisioned does not include any unnecessary safety risks.

4.11.3 The existence or creation of any Owner controlled insurance program in connection with the Work shall not lessen or reduce the Contractor’s safety responsibilities.

4.12 Regular Project Meetings. Contractor shall attend Owner’s regularly scheduled Project progress meetings and fully advise the Project Team of the Project status including schedule, costs, quality, and changes. At each meeting, the Contractor shall report on all agenda items and metrics outlined in Exhibit F.

4.13 Interim Progress Meetings. In addition to regularly scheduled Project progress meetings, Contractor shall attend and participate in interim progress meetings with other members of the Project Team as required to maintain Project progress. Contractor shall record and distribute the minutes of each such meeting to each Project Team member. The minutes shall identify critical activities that require action, the person/entity responsible to complete the action and the dates by which each action must be completed.

4.14 Owner-Procured Material and Equipment. Contractor shall coordinate delivery and installation of Owner-procured material and equipment.

4.15 Performance and Payment for the Work. Contractor shall provide and pay for all labor, materials, equipment, tools, construction equipment and machinery, transportation, and all other facilities and services necessary for the proper execution and completion of the Work

CSP Agreement 01.28.2022 Final Draft Page 13 in accordance with the requirements of the Contract Documents, including this Agreement, the UGC and Special Conditions (if any).

4.16 Permits and Approvals. Contractor shall obtain building permits and special permits for permanent improvements as required by law, regulation, or the Construction Documents.

Contractor shall assist Owner or A/E in obtaining all approvals required from authorities having jurisdiction over the Project.

4.17 Testing. Contractor shall coordinate and oversee all testing operations at the site and coordinate the receipt and proper distribution of all testing results. The Owner will pay for all initial testing required by the Specifications for the purpose of determining whether the materials or systems tested meet the requirements of the Contract Documents. All testing initiated by the Contractor, including all corrective measures necessary for a product or system to meet the requirements of the Contract Documents and any necessary re-testing, shall be paid by the Contractor.

4.18 Coordination of the Work. Contractor shall coordinate, monitor, and inspect the work of

Subcontractors to ensure conformance with the Contract Documents.

4.19 Contractor’s Means and Methods. Contractor shall be responsible for all construction means, methods, techniques, sequences, and procedures, and for coordinating all portions of the Work. Contractor shall keep the Owner informed of the progress and quality of the

Work.

4.20 Warranties and Guarantees. Contractor shall warrant that the materials and equipment provided for the Project will be of good quality and new unless otherwise required or permitted by the Contract Documents; that the construction will be free from faults and defects; and that the construction will conform with the requirements of the Contract

Documents. Contractor shall be responsible for correcting Work that does not comply with the Contract Documents at its sole expense without cost to the Owner. Contractor shall provide warranties and guarantees to Owner that the Contractor is required to provide

Owner under the Contract Documents.

4.21 Record Documents. Contractor shall continuously maintain and deliver the Record

Documents that describe changes or deviations from the Construction Documents that occurred during construction and that reflect the actual “As Built” conditions of the completed Work. Contractor shall revise and update such “As-Built” drawings and other

Record Documents to correct such incompleteness or non-compliance as may be identified by the A/E. Two sets of the corrected and complete Record Documents shall be furnished to the Owner in Adobe Acrobat (PDF) format or such other format and medium acceptable to the Owner. See UGC for other Record Document requirements.

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ARTICLE 5 OWNER’S RESPONSIBILITIES

5.1 Designation of A/E. The Owner has retained and designated an Architect/Engineer (“A/E”) for the Project who is the “Architect of Record” or “Engineer of Record” and is primarily responsible for the design of the Project and provides construction administration services required of the A/E (except for such design professionals contracting directly with the Owner for specific scopes of design services). References to the Project Architect or Architect shall mean the A/E, except as otherwise specifically provided in the Contract Documents. The

A/E is required by agreement to work closely with the Contractor, which should facilitate performance of Contractor’s duties and responsibilities under this Agreement. Upon request, Owner will provide Contractor with relevant sections of the A/E’s agreement with Owner.

5.2 Designation of ODR. The Owner will identify in writing a person as its Owner Designated

Representative (“ODR”) who is authorized to administer this Agreement on behalf of the

Owner, including final determination of fees and costs earned by the Contractor and equitable back charges against the Contractor, if any. The ODR represents Owner in any negotiations involving project scope, cost, time, and Agreement terms and conditions where called for in the Agreement or as otherwise necessary. In all matters Contractor shall act only upon instructions from ODR unless otherwise specifically notified to the contrary in writing. Also see UGC Article 3.1.2.

5.3 Surveys. The Owner, at Owner’s cost, will secure the services of surveyors, soils engineers, existing facility surveys, environmental surveys, or other special studies to develop such additional information as may be necessary for completion of the construction activities at the site.

5.4 Testing. Except as otherwise provided in this Agreement or elsewhere in the Contract

Documents, the Owner will pay for all testing required by the Specifications, but the

Contractor will coordinate and oversee all testing operations at the site and coordinate the receipt and proper distribution of all testing results.

5.5 Services. The Owner shall furnish all legal, accounting, auditing, and insurance counseling services for itself as may be necessary for the Project.

5.6 Furnishing of Required Information and Services. The Owner shall furnish required information and services and shall render approvals and decisions as expeditiously as is consistent with reasonable skill and care and the orderly progress of the Contractor's services and of the Work.

5.7 Inspectors. The Owner may designate one or more construction inspectors who shall be given access to the Work as requested or needed. Such inspectors, if assigned, will be designated in writing and will be under the direct supervision of the ODR. The provision of inspection services by Owner shall not reduce Contractor’s responsibility for the Work. The

Contractor is fully and solely responsible for constructing the Project in accordance with the

Contract Documents.

5.8 Rejection of Work. Owner shall have the right to reject any defective Work on the Project.

Should Contractor refuse or neglect to correct any such Work within a reasonable time after notice, Owner may have the Work corrected by other means and recover all expenses

CSP Agreement 01.28.2022 Final Draft Page 15 incurred from Contractor through a reduction of funds otherwise due to the Contractor under this Agreement.

ARTICLE 6 OWNERSHIP AND USE OF DOCUMENTS

6.1 Contractor’s Limited Authority to Use Documents. Drawings, specifications and other documents prepared by each A/E, its consultants, or other consultants retained by the Owner for the Project that describe the Work to be executed by the Contractor (the “Design

Documents”) are instruments of service and shall remain the property of their authors (or the

Owner as may be provided in the respective contractual agreements between the Owner and the respective design professional) whether the Project for which they are made is executed or not. The Contractor shall be permitted to retain one record set of the Design Documents.

All other copies of the Design Documents shall be returned to their respective authors or suitably accounted for. The Contractor and its Subcontractors are authorized to reproduce and use portions of the Design Documents as necessary and appropriate for the execution of the Work. The Contractor and its Subcontractors shall not use the Design Documents on any other projects.

6.2 Use of Documents to Meet Regulatory Requirements. Submission or distribution of the

Design Documents to meet official regulatory requirements or for other purposes in connection with the Project shall not diminish the A/E’s or other author’s rights.

ARTICLE 7 TIME

7.1 Essential Element. TIME LIMITS STATED IN THE CONTRACT DOCUMENTS ARE

AN ESSENTIAL ELEMENT OF THIS CONTRACT.

7.2 Timeliness of Performance. Unless otherwise approved, the Contractor shall perform its obligations under the Agreement as expeditiously as is consistent with reasonable skill and care and the orderly progress of the Work and any applicable standard of care.

Notwithstanding the foregoing, with regard to construction services, Contractor shall perform its obligations consistent with any Contract Time Requirements set forth in the Contract

Documents.

7.3 CPM Schedule. Attached hereto as Exhibit D-2, is the Contractor’s initial CPM Schedule for the performance of construction services that is consistent with and meets the Contract

Time Requirements and the Owner’s Project Schedule requirements and provides for the expeditious and practicable execution of the Work. The CPM Schedule shall include reasonable periods of time for the Owner’s and A/E’s review and approval of shop drawings and submissions and for the approval of other authorities having jurisdiction over the Project.

The Contractor’s initial CPM Schedule attached as Exhibit D-2 shall become the baseline for evaluating performance of the Contractor. The Contractor shall monitor the progress of the Work in relation to the CPM Schedule and the Contract Time Requirements and the

Owner’s Project Schedule requirements and shall provide the Owner with at least monthly updates and status reports as required by the Contract Documents. The CPM Schedule shall be revised in accordance with the Work Progress Schedule requirements of the UGC at appropriate intervals as required by the conditions of the Work and Project to reflect the

CSP Agreement 01.28.2022 Final Draft Page 16 current status of completed or in-progress activities, with thorough updates to the CPM

Schedule prepared at least monthly and furnished to Owner upon request. The time periods established by the Contract Time Requirements and the Owner’s Project Schedule requirements shall not be changed without the written consent from the Owner. Whenever significant changes to the Project approved by the Owner do occur, such as added or deleted activities, must be reflected on an updated CPM Schedule to be submitted to Owner.

However, any modifications to the CPM Schedule logic, coding, layouts and filters, detail, and activity durations shall be in accordance with any scheduling requirements set forth in the Contract Documents or as otherwise approved by the Owner.

ARTICLE 8 PAYMENTS

8.1 General Requirements.

8.1.1 This Agreement is subject to the assessment of Liquidated Damages against

Contractor. Amounts anticipated to be assessed as Liquidated Damages, and other amounts to which Owner is entitled by way of offset or recovery, may be deducted from any monies due Contractor pending complete resolution of the underlying issues. See Section 18.2 and the Special Conditions (if any), for Liquidated Damages amounts.

8.1.2 Owner is an agency of the State of Texas and materials and services utilized in the construction of the Project may be exempted from state and local taxes. Contractor is responsible for taking full advantage of all tax exemptions applicable to the

Project. Owner will deduct from the Applications for Payment and from the

Request for Final Payment any taxes paid for materials or services that were entitled to tax exemption.

8.1.3 Owner shall have the right to withhold from payments due Contractor such sums as are reasonably necessary to protect Owner against any loss or damage which may result from negligence by Contractor or any Subcontractor or failure of Contractor or any Subcontractor to perform their obligations under this Agreement.

8.1.4 Notwithstanding any other contractual provision to the contrary, Owner shall not be obligated to make full payment to Contractor under circumstances listed in the UGC and any of the following additional circumstances:

8.1.4.1 Contractor persistently fails to perform the Work in accordance with the

Contract Documents or is otherwise in material breach or default under this

Agreement;

8.1.4.2 The payment request includes services that are not performed in accordance with the Contract Documents; provided, however, Owner shall pay for those services performed in accordance with the Contract Documents;

8.1.4.3 The payment request has insufficient documentation to support the amount of payment requested for Project costs; provided, however, Owner shall pay for allowable Project costs for which there is sufficient documentation;

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8.1.4.4 Contractor is in violation of the Prevailing Wage requirements or has failed to make payments promptly to Subcontractors or other third parties used in connection with any services or materials for which Owner has made payment to Contractor;

8.1.4.5 Owner, in its good faith judgment, determines that the unpaid balance of the

Contract Sum is not sufficient to complete the Work in accordance with the

Contract Documents;

8.1.4.6 Contractor has persistently failed to complete the Work in accordance with the current Project Schedule or Owner-approved CPM Schedule or there is reasonable evidence that the remaining Work will not be completed within the Contract Time Requirements, which would make the Contractor subject to Liquidated Damages. In such cases Owner may withhold payments sufficient to cover Contractor’s expected exposure to Liquidated Damages;

8.1.4.7 Contractor is insolvent, makes a general assignment for the benefit of its creditors or otherwise seeks protection under the laws and regulations of the bankruptcy courts; or

8.1.4.8 Contractor fails to obtain, maintain, or renew insurance coverage as required by this Agreement.

8.1.5 No partial payment made by the Owner shall constitute, or be construed to constitute, final acceptance or approval of the work to which the partial payment relates or of the documentation provided in support of the partial payment. No partial payment made by the Owner shall constitute, or be construed to constitute, a release of

Contractor from any of its obligations or liabilities with respect to the Work.

8.1.6 Owner shall have the right to verify and audit the details of Contractor's billings, certificates, accountings, cost data, and statements, either before or after payment, by (1) inspecting the books and records of Contractor during normal business hours;

(2) examining any reports with respect to this Project; (3) interviewing Contractor’s employees; (4) visiting the Project site; and (5) any other reasonable action.

Contractor's records shall be organized and maintained is its files by each

Application for Payment period and shall be kept on the basis of generally accepted accounting principles in accounting standards issued by the Federal Office of

Management and Budget Cost Accounting Standards Board. Contractor should anticipate that Owner will audit the entire Agreement record before making final payment under the Agreement. This provision shall survive any termination of the

Agreement.

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8.2 Construction Payments.

8.2.1 Payments for the Work shall be made as provided for in the UGC and in the Owner’s

Specifications (if any), subject to the conditions and terms of this Agreement. All payment requests shall be submitted on an Application for Payment with a Schedule of Values approved by the Owner and shall include all required attachments identifying payments to Historically Underutilized Businesses and to all

Subcontractors. Payment for approved Change Orders shall be made as part of the

Contractor's Application for Payment. Change Orders shall be listed separately on the Application for Payment form. Failure to submit “HUB Progress Assessment

Report Documentation of Subcontracted Work” form with each Application for

Payment Application will cause rejection of the pay application by the Owner and its return to the Contractor.

8.2.2 A five percent (5%) retainage fee is established through this Agreement between the

Contractor and the Owner, and a subsequent maximum five percent (5%) retainage fee shall be established between the Contractor and any Subcontractors who perform work or provide materials for this Project.

8.2.3 Payments for Subcontractor work shall not exceed the percentage of Work allocated to that Subcontractor for any particular work classification and shall not exceed the total value of the subcontract amount.

8.2.4 Final Payment shall not be made until all Work is completed and all requirements of the Contract Documents have been satisfied including, without limitation: delivery to Owner of a complete release of all liens and claims arising out of the Work; written consent of surety to release of Final Payment; and an affidavit stating that the release includes and covers all materials and services over which Contractor has control and for which a lien could be filed and that all known debts and claims arising from the

Project have been satisfied. Alternatively, Contractor may, at its sole expense, furnish a bond satisfactory to Owner to indemnify Owner against any lien arising out of the Work. If any lien is asserted against Owner after all payments are made, Contractor shall reimburse Owner for all damages and costs Owner may incur in discharging such lien, including all court costs and reasonable attorneys’ fees, and

Owner shall retain all other remedies available to it at law and in equity.

8.2.5 Contractor's acceptance of Final Payment under this Agreement, shall constitute a full and complete release of Owner from any and all claims, demands, and causes of action whatsoever that the Contractor, its Subcontractors, including suppliers and consultants, or any of their successors or assigns have or may have against Owner arising from the Project or any provision(s) of this Agreement except for those previously made in writing and identified by Contractor as unsettled at the time of the Request for Final Payment.

ARTICLE 9 THE CONTRACT SUM

The Owner shall pay the Contractor for performance of the Agreement the sum of

_____________________Dollars ($____________).

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ARTICLE 10 PRE-EXISTING CONDITIONS AND DESIGN ERRORS AND

OMMISSIONS

10.1 Existing Improvements and Conditions. The Contractor acknowledges that it has been provided unrestricted access to the existing improvements and conditions on the Project site and that thorough investigation of these conditions is a Contractor obligation under this

Agreement. Further, Contractor acknowledges that it has thoroughly investigated those conditions prior to signing this Agreement, and that such investigation and understanding of these conditions is instrumental in preparing its Contract Sum for the Work. Contractor shall not make or be entitled to any claim for any adjustment to the Contract Sum or the Contract

Time for Completion arising from Project conditions that Contractor discovered or, in the exercise of reasonable care, using Ordinary Diligence as defined in the UGC, should have discovered in Contractor’s obligatory investigations.

10.2 Design Errors or Omissions. The Contractor acknowledges that prior to executing this

Agreement, the Contractor reviewed the drawings, specifications and other Construction

Documents and shall have notified the Owner of any errors, omissions, or discrepancies in the documents of which it was aware. Contractor shall not make or be entitled to any claim for any adjustment to the Contract Time Requirements or the Contract Sum for errors or omissions in the Construction Documents that Contractor discovered or, in the exercise of its standard of care as a contractor and not as a design professional, should reasonably have discovered using Ordinary Diligence as defined in the UGC, in the request for proposal process and did not bring to the attention of the Owner in a timely manner.

ARTICLE 11 BONDS AND INSURANCE

11.1 In General. Refer to Exhibit B, the UGC, and the Special Conditions for specific requirements for Bonds and Insurance.

11.2 Bonds. The Contractor shall provide performance and payment bonds on forms prescribed by Owner and in accordance with the requirements set forth in the UGC (Article 5) and

Special Conditions. The penal sum of the payment and performance bonds shall be equal to the Contract Sum.

11.3 Insurance. The Contractor shall not commence work under the Agreement or any other activities at the Project site until it has obtained all required insurance and until evidence of the required insurance has been reviewed and approved by the Owner. Without limiting the requirements of the UGC or the Special Conditions (if any), Contractor shall obtain and provide evidence of the insurance coverage for: Workers’ Compensation, Employer’s

Liability, Comprehensive General Liability, Builder’s Risk and Business Automobile

Liability in the amounts as set forth in the UGC and Special Conditions. ODR’s or Owner’s review and approval of the evidence of insurance provided by the Contractor shall not relieve nor decrease the liability of the Contractor.

11.4 Insurance to be Kept in Effect. The Contractor shall not cause or allow any of the insurance required by this Agreement to lapse or be canceled during the term of the

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Agreement or as otherwise required by the Agreement. If the Contractor fails to obtain, maintain, or renew any insurance required by the Agreement, the Owner may obtain replacement insurance coverage directly and recover the cost of that insurance from the

Contractor.

11.5 Owner’s Right to Make Adjustments. The Owner reserves the right to review the insurance requirements set forth in this Article during the effective period of this

Agreement and to make reasonable adjustments to the limits of coverages it deems necessary and prudent based upon changes in applicable law, court decisions, or the claims history of the industry as well as the Contractor. If Owner makes material changes to the insurance requirements of this Agreement, then Owner shall also allow reasonable premium adjustments and such changes will be incorporated into this Agreement by

Change Order.

11.6 Contractor to Provide Copies of Policies. Within five (5) business days of Owner request, and without cost to Owner, Contractor shall provide complete copies of the Contractor’s required insurance policies with all their endorsements to the Owner.

11.7 Cost of Additional Coverage to be Borne by Contractor. The cost of premiums for any additional insurance coverage desired by the Contractor, in excess of that required by this

Agreement, shall be borne solely by the Contractor out of its costs and shall not be invoiced to Owner.

11.8 Insurance Required of Consultants. Contractor shall require its consultants to maintain

Commercial General Liability and Business Auto Liability coverage with a company satisfactory to Owner and with limits acceptable to Owner.

ARTICLE 12 DISPUTE RESOLUTION

All disputes against the Owner that arise from this Contract or the Project shall be resolved in accordance with the procedures and limitations of Texas Government Code Chapter 2260, the Special

Conditions, and Article 15 of the UGC. The Owner designates the Vice Chancellor and Chief

Financial Officer of The Texas State University System as its officer for examining, negotiating, and resolving claims and counterclaims under Chapter 2260 of the Texas Government Code.

ARTICLE 13 PROJECT TERMINATION AND SUSPENSION

13.1 Termination for Convenience by Owner. This Agreement may be terminated by the

Owner for its convenience (at its sole discretion and that is not the fault of the Contractor) at any time upon at least five (5) business days written notice to the Contractor in the event that the Project is to be temporarily or permanently abandoned.

13.2 Recovery upon Termination (other than for fault of the Contractor). In the event of termination that is not the fault of the Contractor, the Contractor shall be entitled to compensation for all services performed to the termination date, provided however, that

Contractor has delivered to Owner such statements, accounts, reports, and other materials as required below, together with all reports, documents, and other materials prepared by/through

CSP Agreement 01.28.2022 Final Draft Page 21 the Contractor (including but not limited to the A/E) prior to termination. Upon such payment, Owner shall have no further obligation to the Contractor.

13.3 No Release of Liability. Termination of this Agreement shall not relieve Contractor or any of its employees, Subcontractors, or consultants of liability for violations of this Agreement or for any act or omission, or negligence, of Contractor. In the event of a termination, Contractor hereby consents to employment by Owner of a substitute Contractor to complete the services under this Agreement, with the substitute Contractor having all rights and privileges of the original Contractor of the Project.

13.4 Rights to Use Documents, Ideas, and Designs. As of the date of any termination of this

Agreement, Contractor shall furnish to Owner all statements, accounts, reports, and other materials as are required hereunder or as have been prepared by Contractor in connection with Contractor’s responsibilities hereunder. Owner shall have the right to use the ideas and designs therein contained for the completion of the services described by this Agreement, and for completion of the Project, or otherwise.

13.5 Suspension or Abandonment. If the Project is suspended or abandoned in whole or in part for more than three (3) months, the Contractor shall be compensated for all services performed prior to receipt of written notice from the Owner of such suspension or abandonment then due. If the Project is resumed after being suspended for more than three

(3) months, the Contractor’s compensation shall be equitably adjusted if, in the Owner’s reasonable opinion, such adjustment is warranted.

13.6 Other Grounds of Suspension or Termination. Except as otherwise set forth herein and in any Special Conditions, the UGC governs any…