ESBD_File_336428_Attachment B.2 - Sample Construction Services Agreement.pdf

Construction Services Agreement Page 1 of 9 Project Name, FP&C #

Agreement Number: 12-031-CS Account Number: 4394-17860

Angelo State University Member, Texas Tech University System

CONSTRUCTION SERVICES AGREEMENT

Executed and entered into the day of in the year Two Thousand and Twenty One

BETWEEN

Angelo State University, Member Texas Tech University System City of San Angelo, Tom Green County, Texas, 76909

(“ASU”)

Acting herein by and through the President of

Angelo State University or his designated representative

And

Contractors Name Address

City, State ZIP

(The “Contractor”)

Regarding

Project Title Location

FP&C Project No.

(The “Project”)

Angelo State University and the Contractor, in consideration of the mutual covenants and conditions contained herein, agree as follows:

SAMPLE

Construction Services Agreement Page 2 of 9

ARTICLE 1

SCOPE OF THE WORK

The Contractor shall perform all of the work required by the “Contract Documents” as defined by the Uniform General Conditions and Supplementary General Conditions (UGSC), are incorporated by reference herein.

This Project will provide for the services necessary for the completion of Enter a brief project description, including all major elements of work. Attachment A, incorporated by reference herein, lists the Contractor’s Proposal and the Contract Documents that describe the Project scope of work.

Furthermore, ASU accepts the following Alternate(s) from the Contractor’s Proposal (Attachment A) and includes these Alternates in the scope of work for this project:

Alt. No. # .......... $###,###.## .................... Enter a brief project description, including all major elements of alternate work and any omissions to base scope of work.

In addition, as part of the scope of work of the Project, the Contractor shall provide the labor, materials, equipment, services, and supervision to perform all of the work, including any addenda, Design Professional’s Supplemental Instructions, and approved Change Orders.

ARTICLE 2

CONTRACT SUM

ASU will pay the Contractor, in current funds, for the performance of all work set forth in the Contract Documents, including all alternates accepted in Article 1, a lump sum price, of:

Write out dollar amount and No/00 Dollars

$000.00

In the event a change to the scope of work becomes necessary, the following unit prices will apply:

Unit Price No. # .......... $###,###.## .................... Enter a brief project description, including all major elements of unit price work and any omissions to base scope of work.

ARTICLE 3

TIME OF COMMENCEMENT AND COMPLETION

The work to be performed under this Contract shall commence on or after a date to be specified in a written Notice to Proceed from ASU and substantially completed within Write out number of days (###) consecutive calendar days after the date of the written Notice to Proceed, and the Contractor shall finally complete all remaining work required by the Contract Documents, including correction of deficiencies, within 30 days after the date of Substantial Completion.

ARTICLE 4

HUB CONTRACTING COMMITMENT

In addition to, and distinct from, any Good Faith Effort required by Texas law, the Contractor commits to use certified HUB Contractors to perform work valued at a minimum of Thrity Percent (30%) of the Total Contract Sum.

ARTICLE 5

HUB SUBCONTRACTING PLAN

The Contractor shall comply with the HUB Subcontracting Plan (HSP) submitted with its Proposal. Failure to comply with the HSP, which is incorporated into this Agreement by reference herein, may constitute a breach of this Agreement.

If at any time during the term of this Agreement, the Contractor desires to make changes to the approved HSP, the Contractor shall comply with the good faith effort requirements to solicit HUB subcontractors as demonstrated

Construction Services Agreement Page 3 of 9 in the original HSP, submit a revised HSP for that portion of work, and obtain ASU’s prior written approval. If the Contractor subcontracts any portion of the work without ASU’s prior written approval, the Contractor may be deemed to have breached this Agreement.

If ASU expands the original scope of work through a change order, contract amendment, additional services request, or a contract renewal that expands the scope of work, and the Contractor determines additional subcontracting opportunities exist, the Contractor shall comply with the good faith effort requirements to solicit HUB subcontractors as demonstrated in the original HSP, submit a revised HSP for that portion of the work, and obtain ASU’s prior written approval. If the Contractor subcontracts any portion of the work without ASU’s prior written approval, the Contractor may be deemed to have breached this Agreement.

ARTICLE 6

LIQUIDATED DAMAGES

It is understood and agreed that, if the Project is not completed within the time specified in the Agreement plus any extension(s) of time allowed pursuant thereto, the actual damages sustained by ASU because of any such delay will be uncertain and difficult to ascertain, and it is agreed that the reasonable foreseeable value of the use of said Project by ASU will be the sum of Write out Dollar Amount and no/100 Dollars ($###.00) per calendar day. Therefore, the Contractor shall pay this amount, as liquidated damages and not as a penalty, for each calendar day’s delay in substantially completing said Project beyond the time specified in this Agreement and any extension(s) of time allowed thereunder.

Liquidated damages do not cover, and Contractor is liable for, any additional Project costs ASU incurs as a result of late Substantial and/or Final Completion, including the costs of supplementing the Work of the Contractor, additional inspection, management, administration, maintenance, and Design Professional and Construction Manager-Agent fees.

ARTICLE 7

DISPUTE RESOLUTION

The Dispute Resolution Procedure provided in Article 15 of the UGSC shall be used by the Contractor to resolve any unresolved claims for breach of contract arising under this agreement.

Except to the extent Texas Civil Practice and Remedies Code Chapter 114 applies, the dispute resolution process provided for in the Texas Government Code, Chapter 2260 shall be used by ASU and the Contractor in an attempt to resolve any unresolved claim for breach of contract arising under this Contract and made by the Contractor.

ARTICLE 8

INDEMNITY

CONTRACTOR SHALL INDEMNIFY AND HOLD HARMLESS ASU, Texas Tech University System and its REGENTS, officers, agents, employees, AND REPRESENTATIVES FOR THE CONTRACTOR’S NEGLIGENT

OR WRONGFUL (IN VIOLATION OF THE TERMS OF THE CONTRACT OR OF APPLICABLE LAW)

ACTIVITIES UNDER THE CONTRACT AS PROVIDED IN ARTICLE 3 OF THE UGSC.

WITHOUT LIMITING THE INDEMNITY REQUIRED ABOVE, The CONTRACTOR SHALL INDEMNIFY AND hold harmless ASU, Texas Tech University System and its REGENTS, officers, agents, employees, AND REPRESENTATIVES from liability of any nature or kind, including cost and expense, for or on account of infringement or use of any patented or otherwise protected invention, process, DOCUMENT, or article in the performance of this CONTRACT, including its use by ASU.

ARTICLE 9

MISCELLANEOUS PROVISIONS

9.1 Incorporated by Reference. All exhibits and attachments and all other documents are incorporated by reference for all purposes.

9.2 Assignment. This Contract is a personal service contract for the services of the Contractor, and the Contractor's interest in this Contract, duties and/or fees due may not be assigned or delegated to a third

Construction Services Agreement Page 4 of 9 party. The benefits and burdens of this Contract are, however, assignable by ASU to the Texas Tech University System or a branch or agency of the State of Texas.

9.3 Certifications.

9.3.1 Under Section 231.006, Texas Family Code, the Contractor certifies that the individual or business entity named in this Contract is not ineligible to receive the specified grant, loan, or payment and acknowledges that this Contract may be terminated and payment may be withheld if this certification is inaccurate.

9.3.2 Under Chapter 2155.0061, Texas Government Code, the Contractor certifies that the individual or business entity named in this Contract is not ineligible to receive this bid or contract and acknowledges that this Contract may be terminated and payment withheld if this certification is inaccurate.

9.3.3 The Contractor and the undersigned Contractor’s representative represents and warrants that the Contractor is a validly existing entity, in good standing under applicable law, and that each person signing on behalf of the Contractor has received all necessary approvals to enter into and execute this Contract.

9.3.4 The Contractor certifies this Contract is not prohibited under Texas Government Code §2261.252(b) and agrees that if the Contractor’s certification is or becomes untrue, this Contract is void, and Vendor will not seek and waives its right to seek any legal or equitable remedy for past or future performance under this Contract, including damages, whether under breach of contract, unjust enrichment, or any other legal theory; specific performance; and injunctive relief.

9.3.5 The Contractor affirms that, to the best of its knowledge, no actual or potential conflict exists between the Contractor's family, business, or financial interests and its services under this Contract, and that it shall immediately inform ASU regarding any possible conflict of interest that may arise. The Contractor further affirms that it shall not hire any officer or employee of ASU to perform any service covered by this Contract. If the Work is to be performed in connection with a federal contract or grant, the Contractor shall not hire any employee of the United States Government to perform any service covered by this Contract.

9.4 Entire Contract and Modifications. The Contract Documents supersede all prior negotiations, representations, agreements, and contracts, written or oral, between the Contractor and ASU and constitute the entire agreement between the Parties with respect to the subject matter. This Contract and each of its provisions are binding upon the Parties and may not be waived, modified, amended or altered except by an amendment signed by ASU and the Contractor.

9.5 Waivers. No delay or omission by either of the Parties in exercising any right or power accruing upon the non-compliance or failure of performance by the other Party of any of the provisions of this Contract shall impair any such right or power or be construed to be a waiver of the provision(s). A waiver by either of the Parties of any Contract term to be performed by the other Party shall not be construed to be a waiver of any subsequent breach or of any other Contract term.

9.6 Binding Effect/Authorization. This Contract is binding on and inures to the benefit of the Parties and their respective permitted assigns and successors. The Parties each represent and warrant that they have the full right and legal authority to enter into this Contract and to grant the rights and perform the obligations in this Contract and that no third party consent or approval is required.

9.7 Appointment. ASU hereby expressly reserves the right from time to time to designate by notice to the Contractor one or more representatives to act partially or wholly for ASU in connection with the performance of ASU’s obligations under this Contract. The Contractor shall act only upon instructions from such representatives unless otherwise specifically notified to the contrary.

9.8 Severability. In case any provision, for any reason, is held invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect any other provision, and this Contract shall be construed as if such invalid or unenforceable provision had not been included.

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9.9 Enforcement. It is acknowledged and agreed that the Contractor's services to ASU are unique, which gives the Contractor a peculiar value to ASU and for the loss of which ASU may not be reasonably or adequately compensated in damages; accordingly, the Contractor acknowledges and agrees that a breach by the Contractor of the provisions hereof will cause ASU irreparable injury and damage. The Contractor, therefore, expressly agrees that ASU shall be entitled to injunctive and/or other equitable relief in any court of competent jurisdiction to prevent or otherwise restrain a breach of this Contract.

9.10 Notices. All notices, consents, approvals, demands, requests or other communications provided for or permitted to be given under any of the provisions of this Contract shall be in writing and shall be deemed to have been duly given or served when delivered by hand delivery or by nationally recognized courier service, or when deposited in the U.S. mail by registered or certified mail, return receipt requested, postage prepaid, and addressed as follows:

If to the Contractor:

To: XXXXXXXXXXX

Title: XXXXXXXXXXX Company: XXXXXXXXXXX

Address: #### XXXXXXXXXXX

XXXXXXXXX, XXXXXXXXX

Phone: ###-###-####

If to ASU:

Cody Guins Director Facilities Planning & Construction ASU Station #10924 San Angelo, Texas 26909-0924 Phone: (325) 942-2380

With an Additional Copy of any notice of termination to:

Joe Muñoz Senior Executive Assistant to the President and General Counsel Office of the President ASU Station #11007 San Angelo, Texas 26909-1007 Phone: (325) 942-2073

Or to such other person or address as may be given in writing by either Party to the other in accordance with this provision. If the notice is mailed, it shall be deemed delivered within forty-eight (48) hours after the post mark date.

9.11 Survival. The terms and provisions of Article 9, “Dispute Resolution;” Article 10, "Indemnity;" Section 9.2, “Assignment” shall survive termination of this Contract.

9.12 Number/Gender. References to the singular include the plural unless the context requires otherwise.

References to a gender include the other, unless the contract requires otherwise.

9.13 Available Funds. ASU shall have the right to cancel this Contract at the end of the then current fiscal period if funds are not allotted for the next fiscal year to continue this contract. ASU may effect such cancellation by giving the Contractor written notice of its intention to cancel not less than thirty (30) days prior to the end of the then current fiscal period, stating its reasons for cancellation. Upon cancellation of this Contract, ASU shall not be responsible for the payment of any services received which occur after the end of the current fiscal period.

9.14 Public Statements. The Parties shall coordinate with one another on all public statements, whether written or oral and no matter how disseminated, regarding their contractual relationship as set forth in this Contract or the performance by either of them of their respective obligations under this Contract, and Contractor may not use any photographs or video recordings of the name “Angelo State University”, “Texas Tech University” or any variation of that name, or ASU’s protected marks in connection with any

Construction Services Agreement Page 6 of 9 sales promotion or publicity event without the prior written approval of the University, which approval shall not be unreasonably withheld, conditioned or delayed.

9.15 Nothing in this Contract shall create a contractual relationship between a third party and either ASU or the Contractor.

9.16 This Contract may be executed in one or more counterparts, each of which shall be deemed to be an original.

9.17 Texas Public Information Act. Contractor acknowledges its understanding that ASU is a public institution of higher education in the State of Texas and is subject to requests for information under the Texas Public Information Act (Texas Government Code, Chapter 552). Under this Act, there are exceptions to requests for disclosure, which include but are not limited to, information confidential by Applicable Law and certain commercial information and trade secrets. The Texas Attorney General’s office makes the final determination whether or not requested information is to be disclosed on a case by case basis after reviewing the materials and assertions against disclosure If proprietary information is requested, the Act requires the University to provide written notice to the party whose proprietary information may be subject to the request and that party may also submit information to the Texas Attorney General to establish that disclosure of the information would cause substantial competitive harm.

9.18 Force Majeure. If either Party is prevented from or delayed in the performance of its obligations under this Contract by reason of war, strikes, riots, storms, fires, or any other cause beyond the control of the non-performing party, the non-performing party is excused from performance to the extent and during the period of prevention or delay. This provision does not apply to delay in the Contract Time Requirements and extensions to which the Contractor may be entitled pursuant to Article 9 of the UGSC or as otherwise provided in the Special Conditions.

9.19 Emergency Health and Safety Procedures. In the event of pandemic, epidemic, viral outbreak, health crisis, or other emergency (“Emergency”), University may, at its sole discretion, implement new or modified health and safety procedures in order to protect the health and safety of the University community. In the event of Emergency, Contractor agrees to adhere to all such procedures and related directives from University when entering onto and performing services on University’s campus.

9.20 The Work shall be performed by the Contractor in such a manner and at such a time so as to minimize interference with or interruption of the operations of ASU. Without limiting the foregoing, Contractor shall comply with all requirements regarding campus access and rules and procedures for vendors and contractors performing work on the property of ASU, which includes, Angelo State University Operating Policies and Procedures.

9.21 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, but not including the UGSC (as revised herein); (3) the UGSC (as revised herein); (4) the final Drawings and Specifications incorporated into the Contract Documents; (5) the Preliminary Drawings and Specifications incorporated into the Contract Documents, with those bearing the latest date taking precedence; (6) and 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. Without limiting the foregoing, the terms of the Agreement and the UGSC shall control over any terms in the Drawings or Specifications inconsistent therewith.

9.22 The Contractor and Sub-Consultants shall provide its management personnel assigned to this Project with access to personal computers and the Internet on a daily basis.

9.23 The Contractor shall not discriminate against an employee or applicant for employment with respect to hiring, tenure, terms, conditions, or privileges of employment, or a matter directly or indirectly related to employment, because of race, color, religion, national origin, age, veteran status, sex, or disability.

Breach of this provision may, at ASU’s sole discretion, be considered a material breach of this Contract.

9.24 ASU serves from time to time as a contractor for the United States Government. Accordingly, if the Contractor provides goods or services in connection with such contracts, it shall comply with Applicable Laws governing or relating to Subcontractors of government contracts.

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9.25 To the extent a Contract relates to a project as defined in Texas Government Code §2252.201(5) (a project to construct, remodel, or alter a building, structure, or infrastructure; to supply material for such a project; or to finance, refinance, or provide funds for such a project), and no exemption in Texas Government Code §2252.203 applies, any iron or steel product produced through a manufacturing process and used in the project that is the subject of a Contract must be produced in the United States (as defined in Texas Government Code §2252.201(4).

9.26 No Boycott. If this Agreement has a value of $100,000 or more that is to be paid wholly or partly from public funds of Angelo State University, and if the Contractor is a company, other than a sole proprietorship, with ten (10) or more full-time employees, then pursuant to Texas Government Code § 2270.002, the Contractor affirmatively states that it does not boycott Israel and will not boycott Israel during the term of this Agreement. In this paragraph, the terms “company” and “boycott Israel” shall have the meanings described in Texas Government Code § 808.001.

9.27 Neither party will be entitled to recover attorney’s fees for breach of an express provision of this Contract.

9.28 The state auditor may conduct an audit or investigation of any entity receiving funds from the state directly under the contract or indirectly through a subcontract under the contract. The acceptance of funds directly under the contract or indirectly through a subcontract under the contract acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. Under the direction of the legislative audit committee, an entity that is the subject of an audit or investigation by the state auditor must provide the state auditor with access to any information the state auditor considers relevant to the investigation or audit.

9.29 COVID-19 Vaccination Mandate Prohibition. Contractor affirmatively states that it will comply with the requirements of the Texas Health and Safey Code §161.0085(c) - A business in this state may not require a customer to provide any documentation certifying the customer ’s COVID-19 vaccination or post-transmission recovery on entry to, to gain access to, or to receive service from the business. A business that fails to comply with this subsection is not eligible to receive a grant or enter into a contract payable with state funds

9.30 Sex Offender Registration: The Contractor agrees to provide the notice required by Section 3.3.3.1 of TTUS Uniform General Conditions and Supplementary General Conditions.

9.31 This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, and shall be considered performable in Tom Green County, Texas. Provided the conditions of Article 7 are met, venue and jurisdiction shall be in San Angelo, Texas.

ARTICLE 10

DESIGN PROFESSIONAL

The Design Professional for the Project is:

Name

Address City, State

Phone Number

ARTICLE 11

OWNER’S REPRESENTATIVES

ASU hereby designates the President of Angelo State University or his designated representative as the person duly authorized to execute any amendments or changes to this Agreement.

ASU has appointed Cody Guins who will be ASU’s point of contact for all matters of contract administration including, but not limited to, interpretation of documents, defining the scope of work, approving work schedules, and approving contract payments. This designation shall remain in full force and effect until and unless Contractor is otherwise notified in writing by Owner and directed to Contractor at its address.

The Project Manager is:

Cody Guins

Angelo State University

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Facilities Planning & Construction 1635 Vanderventer

San Angelo, Texas 76909 Phone Number: 325-942-2380

Email Address: cody.guins@angelo.edu SAMPLE

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IN WITNESS WHEREOF, the undersigned affirm that they have the authority to execute this agreement on behalf of the named Party and have hereunto set their hands.

OWNER

Angelo State University

CONTRACTOR

Contractor Name

By:

Ronnie D. Hawkins, Jr., President

By:

Date: Date:

REVIEWED FOR FISCAL IMPLICATIONS

By:

Angie Wright, Vice President Finance and Administration

Date:

CONTRACT FORM APPROVED BY

THE OFFICE OF GENERAL COUNCIL ON

May 1, 2005

Exhibits:

Attachment A – Proposal Form and Contract Documents Uniform General Conditions and Supplementary General Conditions