re: extension to proposal due date questions and …

Professional FaxPurchasing Department – 2 nd
Construction Manager At Risk for Pediatric Program Renovations at University
Hospital Medical Center.
AMENDMENT NO. 2
QUESTIONS AND ANSWERS
__________________________________________________________________________________
The purpose of Amendment No. 2 is to extend the proposal due date, provide the Questions and
Answers to the RFCSP-215-12-046-CNST, clarify RFCSP vs. RFP as well as provide a sample draft of
the Construction Manager at Risk Agreement.
Extension to the proposal due date:
Due to the posting of Amendment 2, the due date for proposals is hereby changed from February 1, 2016 at
2:00 p.m. CST, to February 2, 2016 at 2:00 p.m. All other dates remain the same.
Questions and Answers:
Q1:
The schedule does not provide any detail regarding design, GMP, Sub Bidding, or Construction for the IDF
Upgrades, Security Upgrades, Medical Equipment and Nurse Call. Are we to assume that Design will be
completed by 3/8/16 in order for the GMP to occur in March ’16, Sub Bidding in April ‘ 16, Construction
to start by May ’16, and Construction to end by the latest date indicated for each of these projects.
A1:
IDF Rooms and IT cabling, as well as Medical Equipment will be designed with each floor and will
be included in “the Work” of the CMAR for each floor. The Nurse Call System, and the
Security Systems will be installed by third party UHS coordinated by the CMAR under UHS’s
direction.
The IDF shaft work is a project which will not be performed by the CMAR
IT cabling will be placed by a third party vendor, Presidio, and the CMAR will coordinate their
work for each floor with that vendor.
Page 2 (Amendment No. 2)
Security upgrade requirements, including a pediatric elopement prevention system, will be
placed by a third party vendor and the CMAR will coordinate their work for each floor with that
vendor.
The Nurse Call system requirements will be placed by a thid party vendor and the CMAR will
coordinate their work for each floor with that vendor.
Work done by the Medical Equipment Planner is being incorporated into the design of each
floor by UHS’s Architect. In some instances the equipment may be:
1. Owner purchase Owner installed in other cases the equipment may be
2. Owner purchased, CMAR installed or
3. CMAR purchased CMAR installed.
The design documents for each floor will define “the Work” which will include all systems
required for a fully functional medical facility.
Q2: The CM Contract is to be awarded by 3/8/16, however the work to occur on Horizon 10 th Floor
indicates a GMP in January ‘16, Sub Bids in February ‘16, and Construction to start on 2/29/16. It appears
that the GMP, Sub Bid, and Construction dates for 10 th Flr Horizon work should be adjusted to start after
3/8/16.
A2: This is the most current schedule.
Q3: The schedule provided in the RFP is very detailed, and appears to include work in areas provided by
others that are not intended to be included in the scope of services bidders are to include. To assemble
accurate cost data for this RFP, I need help identifying the pre-construction and construction schedule
durations for each component below:
Base Project - $19.2mm
§ Preconstruction Duration:
§ Construction Duration:
o Horizon Tower IDF/Security/Nurse Call Upgrades, 5, 6, 8, and 11 th floors
A3: Preconstruction Services will be provided concurrently with the Design activities.. See also
A1.
Q4: On page 40 Financial / Legal / Contractual
1. Financial: a
a. Is it required to submit the last 3 years of audited financial statements?
A4: Yes
Clarification RFCSP vs. RFP
All reference to RFCSP within the solicitation documents is hereby removed and replace with “RFP” with
the exception if the Solicitation number ‘RFCSP-215-12-046-CNST” which for tracking purposes will
remain the same. This solicitation is a request for proposal.
Construction Manager at Risk Agreement
Attached to this Amendment is the sample draft of the Construction Manager at Risk Agreement for review
as requested in the pre-submittal meeting held on January 6, 2016.
NOTICE TO BIDDERS:
A. Receipt of this Amendment shall be acknowledged on the Submittal Form.
B. Respondents are required to sign this amendment acknowledging receipt and return to the
UHS Procurement Department in their submittal response packet. C. This Amendment Form is part of the RFCSP-215-12-046-CNST documents for the above referenced
project and shall be incorporated integrally therewith.
D. Each respondent shall make necessary adjustments and provide their submittals with full knowledge
of all modifications, clarifications, and supplemental data included therein.
Company Name: _________________________________________________________
Vendor Signature Date
Construction Manager-at-Risk Agreement (Contract No. ________________________) Page 1 of 96 COATS, ROSE, YALE, RYMAN & LEE, P.C.
STATE OF TEXAS § CONSTRUCTION MANAGER AT RISK § AGREEMENT WITH § _____________________________________
COUNTY OF BEXAR § CONTRACT NO. ________________
This Construction Manager at Risk Agreement with _______________________ (“Agreement” or “Contract”) is made and entered into on this ______ day of _______________, 20____________, by and between the Bexar County Hospital District d/b/a University Health System, a political subdivision of
the State of Texas, hereinafter called “Owner” and ________________________, whose principal corporate headquarters are located at ________________________, hereinafter also called “Construction Manager,” (each also hereinafter referred to as “Party” individually or “Parties” collectively).
Table of Contents I. Definitions ................................................................................................................................. 2 II. The Project .............................................................................................................................. 11 III. Agreement Documents ........................................................................................................... 11 IV. Owner’s Duties ........................................................................................................................ 14 V. Construction Manager’s Standard of Care ............................................................................ 16 VI. Construction Manager’s Representations and Warranties ................................................... 16 VII. Construction Manager’s Duties .............................................................................................. 21 VIII. Assignment of Construction Manager’s Personnel to the Performance of Pre-Construction
and Construction Services ..................................................................................................... 27 IX. Pre-Construction Services ..................................................................................................... 27 X. Construction Phase Services ................................................................................................. 32 XI. Administration of the Contract ............................................................................................... 38 XII. Administration of Subcontracts ............................................................................................. 39 XIII. Construction Manager’s Compensation ................................................................................ 42 XIV. Guaranteed Maximum Pricing ................................................................................................ 49 XV. Schedule, Delays and Extensions of Time............................................................................. 53 XVI. Changes in the Work............................................................................................................... 55 XVII. Processing of Payments ......................................................................................................... 60 XVIII. Substantial Completion and Final Completion of the Work .................................................. 65 XIX. Uncovering and Correction of Work ...................................................................................... 71 XX. Construction Manager’s Warranty Obligations ..................................................................... 72 XXI. Construction Manager’s Bonds.............................................................................................. 73 XXII. Construction Manager’s Insurance ........................................................................................ 75 XXIII. Protection of Persons and Property ....................................................................................... 76
XXIV. Indemnity and Liability ........................................................................................................... 79 XXV. Termination or Suspension of Agreement ............................................................................. 80 XXVI. Dispute Resolution ................................................................................................................. 84 XXVII. Miscellaneous Provisions ....................................................................................................... 85
RECITALS
WHEREAS, the Owner is undertaking the Pediatric Program Renovation Projects at the University Health System Medical Center, located at 4502 Medical Drive, San Antonio, Texas 78229 (“Projects”) and for which UHS has determined that it will require the services of a Construction Manager; and
WHEREAS, the completion of the Projects may be accomplished in a phased manner under this Contract, as more particularly described below; and
WHEREAS, Construction Manager is qualified and has agreed to provide the services contemplated hereunder as a Construction Manager at Risk; and
WHEREAS, Owner has agreed to compensate Construction Manager for these services, as provided herein;
NOW, THEREFORE, in consideration of the mutual promises, commitments and representations herein it is hereby agreed as follows:
I. Definitions
(1) “Additional Services” means those services which are performed pursuant to a Contract
Amendment that are in addition to those Services required or reasonably inferred under this Agreement.
(2) “Allowance” means an amount requested by the Owner to be allocated by the Construction
Manager for an unknown or undetermined scope item or portion of the Work for any estimate or bid package.
(3) “Applicable Laws” means all laws, rules, regulations, codes, ordinances and restrictive covenants
(whether federal, state or local) of any kind governing the Projects or the development, approval, construction, use or occupancy of the Projects, or any portion thereof.
(4) “Architect/Engineer” means, collectively, _______________________ the architectural and
engineering firms contracted By Owner to perform all of the professional architectural and engineering design services, and any licensed professionals and other personnel working under the Architect/Engineer’s supervision, or otherwise engaged by Owner to prepare the design for all or a portion of the Project.
(5) “As-Builts” means the Construction Manager’s detailed record certified by Construction Manager to
show the accurate location of all elements of the Project as constructed, the delivery of which As- Builts shall constitute Construction Manager’s representation and warranty that such information is complete and accurate.
(6) NOT USED.
(7) “Change Order” shall have the meaning set forth in Section XVI.2.
(8) “Claim(s)” shall mean any disputed liability, obligation, loss, harm, physical or economic damage,
penalty, action, suit, judgment, cost, expense or disbursement or other claim of any form of liability of whatsoever kind and nature, whether founded or unfounded, including legal fees and expenses and costs of investigation associated therewith.
(9) “Conceptual Design” means the initial design for the Project, to be developed during the Project
Definition Phase.
(10) “Confidential Information” means all data and information of Owner, including all Work Product,
which Owner owns and designates as its proprietary and/or confidential property, including but not be limited to, trade secrets, know-how, inventions, techniques, processes, algorithms, software programs, source code, schematics, designs, contracts, vendor and contractor lists, financial information, operational plans and schedules and business information in any way relating to the Project.
(11) “Conflict of Interest” shall have the meaning set forth in Section VI.10.
(12) “Constructability Review” shall have the meaning assigned to such term in Section IX.6.
(13) “Construction Change Directive” shall have the meaning set forth in Section XVI.3.
(14) “Construction Cost Limitation” means the maximum amount of funding that has been authorized
by and is available to Owner to pay Construction Manager for the Services and the Work; the sum of the Preconstruction Services Fee, the Guaranteed Maximum Prices (including the Construction Management Fees therein) and all Change Orders to be approved for all of the Work may not exceed the Construction Cost Limitation, as may be amended by the Owner in accordance with Section II.3.
(15) “Construction Documents” means the documents issued by the Architect/Engineer and approved
by the Owner and Architect/Engineer setting forth in detail the requirements for construction of the Project, including the Drawings and Specifications that establish in detail the quality levels of materials and systems required for the Project, as well as any compilation of all or a part of the Construction Documents that may be included in the Project Manual.
(16) “Construction Documents Phase” means that phase of the Project that follows the Design
Development Phase, and culminates in the Owner’s and Architect/Engineer’s approval of the issuance of the last Design Package for permitting, bidding and construction of the Work described therein.
(17) “Construction Management Fee” means the total compensation to the Construction Manager in
the performance of the Construction Services for the following: (i) general home office support, overhead and profit, and (ii) the Construction Manager’s supervision (salaried, non-hourly) and administrative staff (hourly and non-hourly) and all costs related to such personnel for their involvement in the performance of the Construction Services, all as more particularly described in Section XIII.4.C. The foregoing elements of the Construction Management Fee and any and all other general conditions type costs to be incurred during performance of the Construction Services shall be identified as a part of the Construction Management Fee on the Elements of Construction Manager’s Fees (Exhibit 13), shall only be compensated by payment of the Construction Management Fee, and shall not be included in the Cost of the Work or the Pre- Construction Services Fee. The Construction Management Fee does not include the Pre- Construction Services Fee. There shall be no duplication of any amount to be paid as Pre- Construction Services Fee and Construction Management Fee.
(18) “Construction Manager” means________________________, engaged by the Owner under this
Agreement to perform the Work as the Construction Manager-at-Risk for the Project.
(19) “Construction Manager’s Contingency” means a sum that is not allocated to or included in the
Cost of the Work, and which the parties will establish by Contract Amendment to be available for the Construction Manager to use during performance of Construction Services to pay for the necessary costs to resolve errors or omissions in the Construction Documents, Construction Manager’s mistakes not due to the Construction Manager’s negligence or faulty performance of its duties hereunder, or other causes that the parties cannot reasonably foresee at the time Owner approves of an applicable Guaranteed Maximum Price for the Work described in one or more Design Packages. Only the amount actually expended from the Construction Manager’s Contingency with Owner’s approval in accordance with this Agreement will be charged as a Cost of the Work against the Guaranteed Maximum Price for the Work, as adjusted for approved Change Orders.
(20) “Construction Manager’s Fees” means the total sum of (i) the Pre-Construction Services Fee
and (ii) the Construction Management Fee.
(21) “Construction Phase” means that phase of the Project that follows issuance of Owner’s Notice
to Proceed with construction, during which physical execution of the Work, as required by the Construction Documents occurs, and at the conclusion of which Final Completion of the entire Project occurs. The construction of the Project will be divided into different Design Packages, each with different dates for commencement and completion of the Work described therein, subject to applicable Guaranteed Maximum Prices to be established for such Design Packages in accordance with this Agreement.
(22) “Construction Schedule” means that schedule, and any update thereto, prepared by the
Construction Manager and approved in writing by the Owner, which specifies the date(s) on which the Construction Manager plans to begin and complete various parts of the Work, including dates for key milestones for Design Packages or other major components of the Work, and the times when certain information and/or approvals from the Owner and Architect/Engineer are required.
(23) “Construction Services” shall mean the Services required to be performed by the Construction
Manager during or following the completion of the Construction Phase, as shown on the Elements of Construction Manager’s Fees (Exhibit 13).
(24) NOT USED.
(25) “Contract Amendment(s)” shall mean any written amendment to this Agreement, and in the
form shown in the Form of Contract Amendment (Exhibit 23) executed by both parties and incorporated as a part of this Agreement, subject to Board approval whenever such approval is required by Owner’s policies of governance.
(26) “Contract Documents” means this Agreement, including all of the Exhibits described herein,
and all of the Construction Documents to be developed by the Architect/Engineer and approved by Owner and/or Architect/Engineer, as applicable.
(27) “Control Estimate” means one or more detailed estimates to be prepared by Construction
Manager, including such line item costs therein in such detail as the Owner may reasonably require, to enable them to anticipate and establish pricing for each anticipated Guaranteed Maximum Price Proposal, to ensure that the total cost to Owner to complete the Project remains within the Construction Cost Limitation, as may be amended by the Owner in accordance with Section II.3. The Construction Manager shall provide to Owner an initial version of the Control Estimate as a deliverable at the conclusion of the Project Definition Phase. The Construction Manager shall provide to Owner revisions and updates to the Control Estimate as specified in Section IX.3.A. The Construction Manager shall provide, at least one month prior to submission
of the first Guaranteed Maximum Price Proposal, a final version of the Control Estimate to be used by Owner to evaluate and make pricing decisions for the Project.
(28) “Cost of the Work” shall have the meaning assigned to such term in Section XIII.4.B.
(29) “Day” means the calendar day unless otherwise specifically designated.
(30) “Design Development Phase” means that phase of the Project that follows the Schematic
Design Phase, which generally precedes the preparation of Construction Documents, and during which the systems of the Project are coordinated and the Owner’s consultants have determined that end-users are satisfied with the design.
(31) “Design Package” means, whether one or more, a part of the Construction Documents,
including all Drawings, Specifications and other Construction Documents issued by the Architect/Engineer at a designated point in time as required for bidding, procurement and construction for a specific portion of the Work for one or more Projects.
(32) “Drawings” means the graphic and pictorial portions of the Construction Documents showing the
design, location and dimensions of the Work, and generally including plans, elevations, sections, axonometrics, isometrics, details, schedules and diagrams.
(33) “E-Builder” means the web-based project control system used by the Owner which shall be
utilized by the Project Team for document control, approval processing and distribution/ processing of all project-related documentation and correspondence.
(34) “Effective Date” means the effective date of this Agreement as stated on the first line of this
Agreement, which is the day after the Owner’s Board of Governors approved the award of this Agreement to Construction Manager, and, with respect to any Contract Amendment or Change Order, the effective date described therein, or, in the absence thereof, the date as of which both parties have signed the Change Order.
(35) “Final Completion” shall mean the completion of all Punch List Work, issuance of final
Certificates of Occupancy from all applicable governmental authorities, and the issuance of Owner’s Certificate of Final Completion after fulfillment of all other conditions precedent to Final Completion as set forth in Section XVIII.3.
(36) “Final Completion, Certificate of” shall mean the certificate prepared by the Construction
Manager, in the form approved by Owner, stating the actual date of Final Completion of the Work or a portion thereof, as shown thereon, and signed by the Owner, and Architect/Engineer, and Construction Manager, confirming that Construction Manager has achieved Final Completion of such Work as of such date.
(37) “Final Completion, Scheduled Date of” shall mean _______________________by which date all
Services and Work of Construction Manager shall have been completed and accepted by the Owner, and the date by which the Construction Manager is required to have achieved Final Completion of the Work.
(38) “Functional and Space Program” or “F&SP” means the documents comprising the Functional
and Space Program, and any modifications thereto, describing the functional and space requirements for the Project, as approved by Owner from time to time during the Project.
(39) “Guaranteed Maximum Price” or “GMP” shall mean the sum established by Contract
Amendment or as modified in accordance with Article XVI, Changes in the Work, as the maximum amount Owner will pay for the Cost of the Work included in a Design Package and the
portion of Construction Management Fee allocable to such Design Package in accordance with Section XIV for all Work to described therein, and as approved by Owner in writing prior to commencement of construction of such Work. A Guaranteed Maximum Price may be established for multiple Design Packages.
(40) “Guaranteed Maximum Price Proposal” means the Construction Manager’s written proposal of
a Guaranteed Maximum Price, to be submitted by Construction Manager for all Work associated with one or more Design Packages, in the form of Exhibit 18 to this Agreement.
(41) NOT USED.
(42) “General Requirements” means all of the general requirements for the Work under Division 1 of
the Specifications, and the Work, including any equipment and materials to be installed, as described therein.
(43) “Hazardous Substance(s)” shall mean and include any element, constituent, chemical,
substance, compound, or mixture, which are defined as a hazardous substance by any local, state or federal law, rule, ordinance, by-law, or regulation pertaining to environmental regulation, contamination, clean-up or disclosure, including, without limitation, The Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), The Resource Conservation and Recovery Act (“RCRA”), The Toxic Substances Control Act (“TSCA”), The Clean Water Act (“CWA”), The Clean Air Act (“CAA”), and the Marine Protection Research and Sanctuaries Act (“MPRSA”), The Occupational Safety and Health Act (“OSHA”), The Superfund Amendments and Reauthorization Act of 1986 (“SARA”), or other state superlien or environmental clean-up or disclosure statutes including all state and local counterparts of such laws (all such laws, rules and regulations being referred to collectively as “environmental laws”).
(44) “Mockup(s)” means Contractor’s construction of a portion of the Work, or an example of the
construction thereof, for purposes of confirming and/or testing the appropriateness and performance of the design, materials and/or construction thereof, before continuing with the actual physical construction thereof.
(45) “Notice to Proceed” means a written notice issued by or on behalf of Owner to Construction
Manager to proceed hereunder with the performance of all or any portion of the Services or the Work with respect to any or all of the Design Packages and the balance of the Work.
(46) “Owner” means the Bexar County Hospital District d/b/a University Health System, a political
subdivision of the State of Texas, its successors in interest, and its authorized representatives.
(47) “Owner Indemnitees” means Owner, and its respective affiliates, directors, officers, employees and
any other persons or entities expressly identified as Owner Indemnitees identified in Section XXIV.
(48) “Owner’s Contingency” means a portion of Owner’s authorized funding reserved by Owner, which
is exclusively available to Owner.
(49) “Payment Bond” means the bond provided by the Construction Manager that guarantees the
payment of labor, materials, equipment and supplies used in the performance of the Work, in the form required in Exhibit 5.
(50) “Pending Third Party Claims” means any Claim made or threatened by a third party against the
Owner that (i) has been identified in writing to Owner prior to Construction Manager’s submission of its Application for Final Payment, and (ii) the parties have agreed in writing to leave pending after issuance of Final Payment, in accordance with Section XVIII.4, below.
(51) “Performance Bond” means the bond provided by the Construction Manager that guarantees the
performance of all covenants and stipulations of this Agreement, in the form required in Exhibit 5.
(52) “Pre-Construction Fee Payment Schedule” means a schedule showing assigned values
allocating the entire amount of the Pre-Construction Services Fee, according to percentages of completion to be attained for the various portions of such Pre-Construction Services, prepared in the form of the Pre-Construction Fee Payment Schedule (Exhibit 20), and supported by such data as Owner may require to substantiate its accuracy, for purposes of administration of Owner’s payments of the Pre-Construction Services Fee.
(53) “Pre-Construction Services” means those Services, as set forth in Section IX of this
Agreement, and identified on the Elements of Construction Manager’s Fees (Exhibit 13), which are to be performed in advance of the performance of the Construction Services throughout the various phases of the Project, including the Project Definition, Schematic Design, Design Development, Construction Documents and bidding, for the Work. Pre-Construction Services may overlap Construction Phase Services for certain Design Packages.
(54) “Pre-Construction Services Fee” means the Construction Manager’s fixed fee for all
administrative, supervisory, and management personnel costs, and all direct overhead, and other on-site costs and expenses for any items of equipment, consumables or supplies, to be incurred by the Construction Manager in the performance of Pre-Construction Services, which shall be categorically identified on the Elements of Construction Manager’s Fees (Exhibit 13).
(55) “Product Data” means all illustrations, standard schedules, performance charts, instructions,
brochures, diagrams and other information furnished by the Construction Manager to describe materials or equipment for some portion of the Work.
(56) “Program Implementation Plan” or “PIP” shall mean the implementation plan for the Work
dated February 16, 2015 available through Owner’s website at www.e-builder.net, which PIP is attached hereto as Exhibit 11.
(57) “Master Schedule” means the composite schedule for the Projects contemplated under this
Agreement.
(58) “Project(s)” means all aspects of all renovation and build-out projects identified by Owner in its
Solicitation designated as RFCSP-215-12-046-CNST, dated December 29, 2015, as revised by Addendums __________________, which term includes all base projects and all other potential Work or projects, as further detailed in Exhibit 8 (Detailed Description of Projects). The term “Project(s)” may refer to an individual renovation project or all renovation projects identified in such Request for Proposals. The Owner in its sole discretion and without any liability to Construction Manager may, after giving written notice to Construction Manager: (i) remove any individual renovation project from the scope of this Agreement at any time prior to Construction Manager’s commencement of the Construction Phase for any such Project; and (ii) request qualifications and proposals from others for the performance of construction services and work in connection with any such removed Project.
(59) “Project Budget” shall mean the budget for the Project(s) and includes both the current
Construction Cost Limitation and the Owner’s Contingency for any such Project(s).
(60) “Project Definition Phase” means that phase during which (i) the Owner and Architect/Engineer will illustrate the scale and relationship of the Project components in electronic form; and (ii) based thereon, the Owner, will approve the Architect/Engineer’s definition of the Project by means of a Conceptual Design, based on documents previously approved by the Owner, and ; (iii) the Owner, Construction Manager and Architect/Engineer will update the Project Schedule; and (iv) the Owner
will issue a revised Project Schedule that establishes the Dates of Substantial Completion and the Dates of Final Completion for the Design Packages comprising the Project.
(61) “Project Executive” shall mean the individual that Construction Manager has designated as such in
the List of Construction Manager’s Key Personnel (Exhibit 9) as the individual having direct responsibility at the Worksite for the performance and execution of the Work at the Worksite.
(62) “Project Manual” means the compilation of all of the Specifications for the Work, including all General Requirements, and any other information provided to the Construction Manager in writing to further define, describe or explain the requirements for the Work required by this Agreement, which Project Manual the Construction Manager shall maintain and keep current.
(63) “Project Schedule” shall mean the schedule approved by Owner for execution of the Project,
including all planning, design, management and construction activities as incorporated into Exhibit 10. The Construction Schedule and all other schedules for the Project are integrated into the Project Schedule. The Project Schedule is consistent with and related to the Master Schedule.
(64) “Project Team” means the Owner, Architect/Engineer, Construction Manager, Construction
Manager’s Subcontractors and Suppliers, and any Separate Contractors or other consultants employed by Owner for the purpose of programming, designing, and constructing the Project. The constitution of the Project Team may vary at different phases of the Project. The Project Team will be designated by Owner and may be modified from time to time by Owner, in its sole discretion.
(65) “Punch List Work” means minor incomplete items and/or repairs that must be completed to
achieve Final Completion, but which do not impair the Owner’s beneficial use and occupancy of a facility, or the safety of individuals, and which are identified during inspections of the Work or any portion thereof, whether at or before Substantial Completion thereof, and which must be completed as a condition precedent to Final Completion.
(66) “Record Documents” means the comprehensive set of all Drawings and Specifications that
include any modifications to the Contract Documents effected by such instruments as: Contract Amendments, Change Orders, Field Orders, responses to requests for information, supplemental instructions, approvals of substitutions, and any other items that result in a change to the Contract Documents. Record Documents shall be maintained and generated using E-Builder Enterprise 7 software.
(67) “Samples” means all physical examples which illustrate materials, equipment or workmanship
and establish standards by which the Work will be considered for approval.
(68) “Schedule of Values, Construction” means a schedule showing assigned values allocating the
entire amount of the Cost of the Work and the applicable portion of the Construction Management Fee that Owner is expected to pay for the Services and the Work, according to percentages of completion attained to the various portions of the Services and Work, prepared in such form and supported by such data to substantiate its accuracy as Owner may require, for purposes of administration of Owner’s payments of the applicable Cost of the Work and Construction Management Fee.
(69) “Schematic Design Phase” means that phase of the Project that follows the Project Definition Phase, generally precedes the preparation of Design Development Documents, and during which the basic floor plans showing all room locations, building elevations, and sections, are developed and systems and materials are selected.
(70) “Separate Contractor(s)” means any contractor(s) engaged directly by the Owner (other than
Construction Manager) to perform construction or other services on the Worksite relating to the Project or the operation or maintenance of Owner’s property.
(71) “Services” means all management services required to be performed by or on behalf of the
Construction Manager hereunder, including all Pre-Construction Services and Construction Phase Services. The Construction Manager’s Services are separate from, and in addition to, the Work.
(72) “Shop Drawings” means all drawings, diagrams, schedules and other data specially prepared
for the Work by the Construction Manager, a Subcontractor, Sub-subcontractor, or Supplier to illustrate some portion of the Work for review, processing and approval by the Construction Manager and the Architect/Engineer.
(73) “Specifications” means that portion of the Construction Documents consisting of the written
General Requirements and technical requirements for materials, equipment, systems, standards and workmanship for the Work, and performance of related Services, including all requirements of applicable building and life safety codes. The Specifications generally describe Work not readily indicated on the Drawings.
(74) “Construction Manager’s Community Outreach Plan” means the plan (Exhibit 22) required by
Owner’s policy on utilization of Small, Minority, Women, and Veteran-Owned Business Enterprises (SMWVBE).
(75) “Subcontractor(s)” means all entities or persons entering into any Subcontract with the
Construction Manager for the construction of the Work, and including any Supplier who provides, at the Worksite, technical assistance or other Services.
(76) “Sub-subcontractor” is a person or entity (including its authorized representative) who contracts
with a Subcontractor or Supplier to perform a portion of the Work. An entity or person who contracts with a Sub-subcontractor to perform a portion of the Work is also considered a Sub- subcontractor.
(77) “Subcontract(s)” means any contract between Construction Manager and one of its
Subcontractors that is approved by Owner.
(78) “Submittal(s)” means Shop Drawings, Product Data, Samples, Mockups and similar items required by the Construction Documents for the purpose of demonstrating how the Construction Manager proposes to conform certain portions of the Work to the requirements of, and the design concepts expressed in, the Contract Documents.
(79) “Substantial Completion” means that stage of completion by which the Work or a portion thereof is
accepted by execution of a Certificate of Substantial Completion by Owner and Architect/Engineer as sufficiently completed, inspected, and approved by the appropriate regulatory authority or authorities, for Owner’s occupancy or partial occupancy for its intended purposes pending Final Completion, excluding only Punch List Work.
(80) “Substantial Completion, Certificate of” shall mean a certificate prepared by the Construction
Manager, in the form approved by Owner, stating the actual date of Substantial Completion of the Work or a portion thereof, as shown thereon, and signed by the Owner Architect/Engineer, and Construction Manager, confirming that Construction Manager has achieved Substantial Completion of such Work as of such date.
(81) “Substantial Completion, Scheduled Date of” shall mean the date by which the Construction
Manager is required to have achieved Substantial Completion of the Work or a portion thereof according to the Construction Schedule, or any updates thereto as approved by Owner in writing.
(82) “Supplier(s)” shall mean any person or entity approved to provide under contract to Construction
Manager or any Subcontractor any materials or supplies and/or equipment or other components of the Work to be used or installed therein, whether incorporated into the Work or consumed in whole or in part during the prosecution of the Work.
(83) “The Joint Commission” means a national independent, not-for-profit organization by such name
that sets standards and acts as an accrediting body that provides accreditation and certification for health care organizations and disease-specific care programs, primary stroke centers, and health care staffing services, often referred to by its former name, the Joint Commission on the Accreditation of Healthcare Organizations (JACHO).
(84) “Value Analysis” means the continuing evaluation by the Construction Manager of the
Drawings, Specifications, related design concepts, and design documents, throughout the design and construction phases of the Project, whereby the Construction Manager proposes and the Project Team determines the most advantageous value added design substitutions or solutions, as approved by Owner, with the goal of an integrated design that encompasses life cycle cost analysis and functional analysis according to evaluation criteria established by the guidelines of the Society of American Value Engineers (SAVE).
(85) “Work” means all labor, parts, supplies, skill, supervision, transportation, construction related
activities, and all other items of cost or value, and other facilities and things necessary, proper or incidental and required or reasonably inferable to produce, construct and fully complete the construction of the Project(s) in strict accordance with the requirements of the Contract Documents (as they may be modified or amended). The Work also refers to the performance of the physical construction thereof, as well as the incorporation of all material and equipment therein. The Work itself is distinguished from the Services required to manage the construction of the Work.
(86) “Work Product” means all Construction Documents, designs, Drawings, Specifications,
Submittals, contracts, instruments of service, estimates, software created for this Project, and all plans, data compilations or calculations, the Building Information Model (where applicable to a particular Project, in which case the Parties shall agree upon a mutually acceptable BIM execution plan), studies, reports, or other documents which are prepared by or on behalf of the Owner Construction Manager, Architect/Engineer, or any other service provider, in connection with the PIP and/or the Project or in connection with the performance of the Services or Additional Services hereunder, which Work Product shall, except as otherwise set forth in this Agreement, be and remain the exclusive property of Owner, the use of which shall not be made or permitted by Construction Manager except in connection with the Project without Owner’s prior written consent.
(87) “Worksite” means the location of the Project and any offsite location owned or leased by Owner as
a location where Work has been approved in writing by Notice to Proceed to be performed hereunder. The use of the word “site” to modify the terms “Work” or “Project” in phrases such as “the site of the Work” or “at the Project site” shall also be deemed to refer to the Worksite.
(88) “Worksite Finds” shall mean the unexpected discovery at, on or near the Worksite of any
archeological, paleontological, or cultural resources or any threatened or endangered biological species listed as such at the time of discovery by Applicable Law.
II. The Project
1. Project Description. [NOTE TO RESPONDENTS – REFER TO OWNER’S SOLICITATION FOR
DESCRIPTION OF PROJECTS.]
2. Schedule Limitation. Construction Manager acknowledges and accepts that it will be obligated
to provide and timely complete all Pre-Construction Services, and Construction Phase Services, and achieve the applicable Date(s) of Substantial Completion and Date(s) of Final Completion for the various Design Packages comprising the Project, as established by Contract Amendment. Construction Manager shall use its best efforts to re-sequence the Work when necessary or appropriate to overcome and/or mitigate, to the greatest practicable extent, the effect of any delays. Any additional costs due to resequencing, or mitigation in addition to acceleration of the Work to overcome delays may be included in the Cost of the Work, but only to the extent allowed under Section XV.3. Construction Manager shall diligently prosecute the Work in accordance with the Construction Schedule and the Project Schedule. Time is of the essence with respect to the intermediate milestone dates designated as major or key milestones in the Construction Schedule and the Project Schedule, as well as the Substantial Completion Dates and Final Completion Dates to be established in the Construction Schedule for the Work and any portions thereof as such dates are modified from time to time in accordance with the Contract Documents. In the performance of all of its duties hereunder, Construction Manager shall endeavor to perform its Services in a manner consistent with such time limitations.
3. Cost Limitation. Owner is precluded by law from obligating funds beyond those which have been
specifically secured and authorized for the Project. Construction Manager acknowledges and accepts that the total of all amounts Owner shall pay for the Construction Manager’s Services and Work to complete the Project, including all of Construction Management Fees, shall not exceed the Construction Cost Limitation authorized for the Project, which includes an Owner’s Contingency in the amount of $__________________, expected to be available for the Construction Phase, and which is to be reserved exclusively for Owner’s Change Orders. As of the Effective Date, the Construction Cost Limitation is $__________________. The Construction Cost Limitation can only be adjusted by Owner, in writing, in its sole discretion, with approval of Owner’s Board as required by Owner’s policies of governance. In the performance of all of its duties hereunder, Construction Manager shall perform the Services and all Work so as not to exceed the Construction Cost Limitation, as may be amended by Owner hereunder. Provided, however, that nothing in this Agreement obligates Construction Manager to perform Work or Services for which it is entitled to a Change Order or is required to perform pursuant to a Construction Change Directive unless funds are available under the Construction Cost Limitation, as may be amended by Owner hereunder.
Prior to letting or permitting the letting of any Subcontract, Sub-subcontract or other contract or purchase orders containing a contingent payment clause, Construction Manager shall have submitted to Owner a completed form of the Owner’s Confirmation of Funding (Exhibit 12) for execution by Owner’s Executive Vice President, and informed, and required its Subcontractors and Suppliers to have informed, all Subcontractors, Sub-Subcontractors and Suppliers of every tier of the Construction Cost Limitation (as may be amended by Owner hereunder) for the Project.
4. Term of Agreement. This Agreement shall remain in effect until the Scheduled Date of Final Completion, by which date all Services and Work of Construction Manager shall have been completed and accepted by the Owner, subject to the continuing obligations of the Construction Manager with respect to those provisions which, by their nature or terms survive the termination of this Agreement.
III. Agreement Documents
1. Correlation and Intent of Agreement Documents. The Contract Documents form the entire
Agreement, and all are as fully a part of this Agreement as if attached hereto or repeated herein.
A. Unless otherwise stated in the Contract Documents, words which have well-known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings.
B. If a conflict, ambiguity or inconsistency among the Contract Documents arises, the following order of precedence shall apply:
(1) Contract Amendments to this Agreement; (2) This Agreement; (3) Change Orders to the Work; (4) Exhibits to this Agreement; (5) Construction Documents.
C. The foregoing notwithstanding, the Contract Documents are complementary and are intended to include all items required for the proper execution and completion of the Work. The enumeration of any portion of the Work shall not be construed to exclude other items contemplated by or reasonably inferable from the Contract Documents. If the Contract Documents contain differing provisions on the same subject matter, then, notwithstanding Section III.1.B, and unless expressly excused by Owner in writing, the provision that establishes the higher quality, manner or method of performing the Work, or uses the more stringent standard, will prevail.
D. Specifications may indicate types, qualities, and locations of installation of the various materials and equipment required for the Work. Specifications will not mention every item of Work that can be adequately shown on the Drawings, and Drawings will not show all items of Work described or required by the Specifications. All materials or labor for Work which is shown on the Drawings or described in the Specifications or is reasonably inferable therefrom as being necessary to produce a finished and functional Project shall be provided by Construction Manager. Organization of the Specifications into divisions, sections and articles, and arrangement of Drawings, shall not control the Construction Manager in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. Where provisions in two or more of the Contract Documents are complementary, the more detailed provision shall control over the more general provision. When specific products, systems or items of equipment are referred to
in the Contract Documents, any ancillary devices necessary for proper functioning shall also be provided.
E. If the Construction Manager’s proposal in response to the Owner’s request for proposals for the Services and Work, and any Guaranteed Maximum Price Proposal submitted to and accepted by Owner, includes statements, terms, services or work that can reasonably be interpreted as offers at no additional cost to Owner to provide higher quality items than otherwise required by the Contract Documents, or to perform services or work meeting standards better than those otherwise required herein, or otherwise contain terms that are more advantageous or provide greater value to Owner than the requirements of the Contract Documents, then Construction Manager’s obligations hereunder shall, unless expressly excluded by the Contract Documents, include compliance with all such statements, terms, services or Work, which shall take priority.
F. The most recently issued document takes precedence over previously issued forms of the same document. Dimensions on Drawings shall govern scale measurements. Items shown one place in the Drawings, but not another, or called for in the Construction Documents or the Specifications but not shown in the Drawings, or shown in the
Drawings but not in another of the Construction Documents, are to be included. If existing conditions are inconsistent with dimensions shown on Drawings and Specifications, the Construction Manager shall request information in writing from the Architect/Engineer to resolve the same prior to the time when the Work affected by such inconsistency must be commenced.
G. The edition of any standard, code or ordinance applicable to the Work shall be that which is the governing code(s) at the time the Guaranteed Maximum Price Proposal is accepted by Owner, even though a different edition or no edition is specified. In the event of inconsistencies between the Contract Documents and standards, codes, and ordinances applicable to the trade Work performed by or through the Construction Manager, the Construction Manager shall comply with the applicable standard, code, and/or ordinance, unless a more stringent standard is set out in the Contract Documents. The current edition of manufacturer’s instructions and guarantees referenced in the Contract Documents shall be applicable. References to standards, codes, ordinances, manufacturer’s instructions and guarantees shall apply in full, except they shall not supersede more stringent standards set out in the Contract Documents. If the Construction Manager becomes aware that any requirements set out in the Contract Documents are inconsistent with applicable standards, codes, ordinances or manufacturer instructions and guarantees, the Construction Manager shall promptly bring such inconsistency to the attention of Architect/Engineer for resolution.
2. Exhibits to Agreement. This Agreement includes the following Exhibits, each of which are
incorporated by reference as if fully stated herein:
Exhibit 1 - Acknowledgement of Data Use Protocols;
Exhibit 2 - Health Insurance Portability and Accountability Act (HIPAA) Requirements;
Exhibit 3 - Construction Manager’s completed Workforce/Employee Composition Questionnaire;
Exhibit 4 - Owner’s Requirements of Insurance;
Exhibit 5 - Bond Forms;
Exhibit 5.1 – Payment Bond Form Exhibit 5.2 – Performance Bond Form Exhibit 5.3 – Security Bond Form Exhibit 6 - Construction Manager’s Confidentiality Agreement;
Exhibit 7 - Prevailing Wage Rate Schedule;
Exhibit 8 - Detailed Description of Project(s);
Exhibit 9 - List of Construction Manager’s Key Personnel who Construction Manager will assign to key positions for purposes of performing the Services hereunder, including an organizational chart of the personnel, including their names, job titles, contact information, and hourly rates for Additional Services;
Exhibit 10 - The Project Schedule;
Exhibit 11 - Program Implementation Plan;
Exhibit 12 - Owner’s Confirmation of Funding;
Exhibit 13 - Elements of Construction Manager’s Fees;
Exhibit 14 - Travel Reimbursement Policy, revised 06/26/2013;
Exhibit 15 - Form of Additional Services Proposal;
Exhibit 16 - Table of Hourly Labor Rates for Construction Manager’s Staff Personnel;
Exhibit 17 - Table of Construction Manager’s Field Labor Rates (General Requirements);
Exhibit 18 - Form of Guaranteed Maximum Price Proposal;
Exhibit 19 - Dispute Resolution Procedures;
Exhibit 20 - Pre-Construction Fee Payment Schedule;
Exhibit 21 - Partial and Final Release of Claims;
Exhibit 21.1 – Partial Claim Release Exhibit 21.2 – Final Claim Release Exhibit 22 - Construction Manager’s Community Outreach Plan;
Exhibit 23 - Form of Contract Amendment; and
Exhibit 24 - Construction Manager’s Certification of Criminal History Background Checks
IV. Owner’s Duties
The Owner shall have and fulfill the following duties:
1. Coordination. The Owner, acting through its consultants, shall enable and cause the Project
Team to coordinate with the Construction Manager in the implementation of the Project.
2. Cooperation of Project Team. The Owner shall cooperate in providing information to all
members of the Project Team regarding its requirements for the Project. Information or services reasonably necessary for Owner to provide for the Work and under the Owner’s control shall be furnished by the Owner with reasonable promptness where requested in writing by the Construction Manager. Under normal circumstances, fourteen (14) days will be considered a reasonable time for Owner’s response unless there is a critical need for an earlier response and that need is addressed by the Construction Manager in its request. In any instance where information or services from the Owner are reasonably required, Construction Manager shall promptly notify in writing the Owner and Architect/Engineer of the particular need. Absent such notification, any claim based upon lack of such information or services shall be waived. Notwithstanding anything to the contrary contained in this Agreement, Owner shall only furnish information or services described in this Section IV to the extent that any such information or services are reasonably required by Construction Manager to perform the Services and Work required under this Agreement or as required under Applicable Laws.
3. Site Reports. Owner shall furnish site reports describing known or expected physical
characteristics, soils reports and subsurface investigations for the Worksite.
4. Tests and Inspections. Except as provided otherwise below, Owner shall provide special
testing and inspection services to the extent specified by Owner and/or Architect/Engineer in the Contract Documents and as required by Texas Government Code §2269.058, which provides as follows: “(a) Independently of the contractor, construction manager-at-risk, or design-build firm, the governmental entity shall provide or contract for the construction materials engineering, testing, and inspection services and the verification testing services necessary for acceptance of the facility by the governmental entity. (b) The governmental entity shall select the services for which it contracts under this section in accordance with Section 2254.004.”
A. Tests, inspections and approvals of portions of the Work required of Construction
Manager by the Contract Documents or required by law, ordinances, rules, regulations or orders of public authorities having jurisdiction shall be made at appropriate times. Unless otherwise provided, the Construction Manager shall make arrangement for such tests, inspections and approvals with an independent testing laboratory employed by the Owner for this purpose, or with the appropriate public authority. Owner shall bear the normal costs of these services, but not any excess costs attributable to Construction Manager caused scheduling problems, or other Construction Manager error. The Construction Manager shall give the, Architect/Engineer timely notice of when and where tests and inspections are to be made so they may observe such procedures.
B. If the Owner, Architect/Engineer or public authorities having jurisdiction determine that portions of the Work require additional testing, inspection or approval not included under Section IV.4.A, the Construction Manager shall make arrangements for such additional testing, inspection or approval by an entity acceptable to them, and the Construction Manager shall give timely notice to them of when and where tests and inspections are to be made so that the they may be present for such procedures. Such costs, except as otherwise expressly provided in this Agreement, shall be at the Owner’s expense.
C. If such procedures for testing, inspection or approval reveal failure of the portions of the Work to comply with requirements established by the Contract Documents, all costs made necessary by such failure including those of repeated procedures and compensation for the Architect/Engineer’s services and expenses shall be at the Construction Manager’s expense.
D. Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be secured by the Construction Manager and promptly delivered to the Owner.
E. If the Architect/Engineer is to observe tests, inspections or approvals required by the Contract Documents, they will do so promptly and, where practicable, at the normal place of testing.
F. Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work.
5. Disclosure of Known Faults or Defects. If the Owner has actual knowledge of any material
fault or defect in the Project or non-conformance with the Drawings and Project Manual, Owner shall give prompt written notice thereof to the Construction Manager. However, Owner’s failure to notify Construction Manager of such fault or defect shall not relieve Construction Manager from any of its liability related to such fault or defect if such fault or defect should, in the exercise of the standard of care, have been observed by Construction Manager.
6. Access to Electronic Files. The Owner will cause the Architect/Engineer to provide to
Construction Manager and its Subcontractors and Suppliers, free of charge, limited electronic
access to use and make copies of data and electronic files of Construction Documents, subject to their prior execution and compliance with the Acknowledgement of Data Use Protocols (Exhibit 1), with respect to such data and electronic files, in accordance with Section VII.4, below.
V. Construction Manager’s Standard of Care
The Construction Manager shall, in the performance of the Services and Work, comply with the standard of care described herein. Notwithstanding anything to the contrary contained in this Agreement, Owner and Construction Manager agree and acknowledge that Owner has entered into this Agreement in reliance on Construction Manager’s special and unique construction management abilities to perform its obligations hereunder. The Construction Manager accepts that, by this Agreement, a relationship of trust and confidence is hereby established between it and the Owner. Construction Manager understands the complexity involved in this type of construction and the necessity of coordination of the performance of its Work with the Project Team. In addition to the foregoing, and in addition to the rights and remedies otherwise existing under this Agreement, at law or in equity, the Construction Manager will perform, or cause to be performed, all Services and the Work expeditiously, and in no event later than is required to conform to the Construction Schedule and the Project Schedule, and shall do so with that degree of professional skill and care practiced by similar firms, using similar collaborative project planning methods, and having industry leading knowledge and skill engaged in providing similar services for major construction projects of comparable value in the United States under the same or similar circumstances. The Construction Manager will furnish efficient business administration and superintendence and perform the Services and the Work in such manner as to provide Owner the best value. Construction Manager shall employ and exercise the professional judgment of its experienced and qualified construction professionals to provide Owner confidence that the Project will be completed in conformity with the design concepts and construction requirements established by Owner, and it is the intention of the parties that the Construction Manager shall, at all times, act in the Owner’s and Project’s best interests with respect to the performance of the Services and the management of all aspects of the Work. Construction Manager shall, at all times, exercise exclusive direction and control, and shall be responsible for proper supervision, of all its personnel, Subcontractors and Suppliers while present on the Worksite and otherwise. The standard of care required hereunder shall not, however, be deemed to alter or expand the Construction Manager’s common law duty to Owner with respect to liability for, or the duty to indemnify, defend or hold Owner harmless under Article XXIV, Indemnity and Liability, with respect to claims or liability for bodily injury or property damage, for which the standard of care hereunder shall be deemed and construed to be no greater than that imposed upon the Construction Manager by common law.
VI. Construction Manager’s Representations and Warranties
The Construction Manager hereby expressly represents and warrants to Owner each of the following:
1. Cooperation and Collaboration. Construction Manager will, and will require its personnel,
Subcontractors and Suppliers, to provide a high degree of cohesion, cooperation, collaboration, coordination and teamwork on the Project to exercise sound resource stewardship and deliver to Owner cost-effective and innovative capital solutions while completing the Work under this Agreement. To this end, Construction Manager shall deliver the Work on time and within the Guaranteed Maximum Price(s) to be established for the Work by Contract Amendments. The Construction Manager and Owner agree that the sum of all such Guaranteed Maximum Price(s), including all charges for the Construction Management Fees, and the Pre-Construction Services Fee, shall in no event exceed the Construction Cost Limitation, as may be amended by the Owner in accordance with Section II.3.
2. Familiarity with Project. With respect to the Services (as distinguished from the physical Work to
be performed), Construction Manager has thoroughly reviewed all information provided by the Owner, including the Program Implementation Plan in Exhibit 11, visited the Worksite for the Project, and, thoroughly familiarized itself with the local conditions and constraints under which the Services
will be performed. Owner has furnished to Construction Manager, and Construction Manager has reviewed all floor plans showing the locations of the various individual renovation projects included in the Project. Construction Manager warrants, represents, covenants, and agrees that there are no obligations, commitments, or impediments of any kind that will limit or prevent performance of the Services required hereunder, which are known to any of the Construction Manager’s employees and agents. With respect to the physical Work to be performed, Construction Manager’s warranty and representation of familiarity with and assumption of risks of conditions and constraints shall apply as of the time Construction Manager submits its Proposed Guaranteed Maximum Price for such Work, as provided in Section XIV.1.B.
3. Compliance and Familiarity with Applicable Laws, Rules, Regulations, Codes and Standards. Construction Manager is knowledgeable of Applicable Laws, rules, regulations, codes and standards, and will diligently use all reasonable care to ensure that it, and all Construction Manager’s personnel and Subcontractors perform all Services and undertakings hereunder in compliance with Applicable Laws, rules, regulations, codes and standards, including those dealing with employer- employee relations, including, as amended, the “Fair Labor Standards Act” of 1938, the “Walsh- Healy Act,” and “Nondiscrimination in Employment,” Executive Order No. 11246 of September 24,1964, and Chapter 2258 of the Texas Government Code, and the requirements for filing of all reports as required thereby. Construction Manager shall execute and deliver to Owner such documents as may be required to effect or evidence compliance. Construction Manager acknowledges that the Project must fully comply with all applicable Centers for Medicare and Medicaid Services (CMMS) standards, as promulgated by the U.S. Department of Health and Human Services. Details for compliance with these requirements will be provided by the Architect/Engineer in the Construction Documents, for which Construction Manager acknowledges a duty to identify and report errors and omissions in such specified compliance details in accordance with the provisions of Section VII.5.A. Construction Manager agrees that it shall provide all required Work and documentation of its Services for the Project to fulfill such compliance requirements for the Project. The Construction Manager will comply with and give notices required by laws, ordinances, rules, regulations and lawful orders of public authorities applicable to performance of the Work. Construction Manager shall comply with the most restrictive requirements of the laws, rules, regulations, codes and standards applicable to the Work, and shall take and observe all necessary measures and precautions for the safety and protection of all property and persons in connection with performance of the Work, including, without limitation, providing and installing barricades, guardrails, fences, warning signs, lighting, etc. for the protection of workers and the public. If the Construction Manager performs Work knowing it to be contrary to laws, statutes, ordinances, building codes, and rules and regulations without such notice to the Architect/Engineer and Owner, the Construction Manager shall assume appropriate responsibility for such Work and shall bear the costs attributable to correction. Construction Manager shall advise Owner as to changes in any Applicable Laws, rules, regulations, codes and standards, during the term of this Agreement of which Construction Manager becomes aware.
4. Compliance with Health Insurance Portability and Accountability Act (HIPAA) Requirements. Construction Manager has reviewed, is familiar with and shall perform the Services in accordance with the terms and conditions set forth in the HIPAA Requirements (Exhibit 2) pertaining to compliance with Federal HIPAA regulations relating to the requirement that Business Associates, as defined therein, protect certain confidential health or medical information of individuals.
5. Workforce/Employee Composition. It is the policy of Owner to encourage, promote, increase, and
improve procurement opportunities to assure that qualified small, minority or women-owned business enterprises that provide high-quality, cost competitive products and services are provided the maximum practicable opportunity to actively participate in Owner’s supplier and contractor procurement opportunities. Construction Manager has completed and furnished to Owner prior to execution of this Agreement true and complete answers to the Workforce/Employee Composition Questionnaire (Exhibit 3). Owner shall have the right at any time to require Construction Manager to
complete and furnish to Owner a current Workforce/Employee Composition Questionnaire form, which shall be completed and furnished to Owner promptly upon Owner’s written request, failing in which Owner may terminate this Agreement, pursuant to Section XXV.2.A, below.
6. UHS’ Accreditation by the Joint Commission. Construction Manager has reviewed and shall
review all information available to it concerning The Joint Commission’s accreditation of the University Health System, for which Construction Manager acknowledges a duty to identify and report errors and omissions in the Construction Documents related to such accreditation information in accordance with the provisions of Section VII.5.A. Construction Manager and its personnel shall perform the Services and the Work in strict compliance with The Joint Commission Accreditation Standards, and any other standards of The Joint Commission that are or become applicable to the Project. If the Construction Manager determines that the Architect/Engineer any other service provider is unaware of information concerning the Joint Commission accreditation information provided to the Construction Manager or that any of them is acting in violation of Joint Commission standards, then Construction Manager shall notify or otherwise report such violation to Owner. Under no circumstances shall Construction Manager actively or passively cause, or knowingly permit others to cause UHS to be in violation of The Joint Commission standards.
7. No Material Change in Construction Manager’s Qualifications or Responses to Request for Proposal. All information contained in Construction Manager’s responses to Owner in its Solicitation designated as RFCSP-215-12-046-CNST, dated December 29, 2015, as revised by Addendums __________________, including but not limited to Construction Manager’s statements and representations as to its history, experience, capabilities, litigation disclosure, financial information, and other qualifications are accurate and complete, and no material change in circumstances has occurred as of the Effective Date that would cause Construction Manager’s responses to be untrue or materially different than what was originally stated. Construction Manager shall have a continuing duty to disclose any material change in circumstances that could adversely affect Construction Manager’s ability to continue to perform the Services and the Work in accordance with its obligations hereunder.
8. Financial Ability, Insurance and Bonds. Construction Manager is financially solvent and
possesses or is able to engage sufficient working capital to complete the Services and the Work as required by this Agreement. Construction Manager’s insurance policies and bonds are and will be maintained in the form required under and for Owner’s Requirements of Insurance (Exhibit 4) and Construction Manager’s Bond Forms (Exhibit 5). Construction Manager’s insurance policies contain no exclusions or exceptions to coverage other than what is provided in or equivalent to the standard forms published for such policies of insurance by Insurance Service Office, Inc. (ISO).
9. Qualifications of Construction Manager’s Personnel. Construction Manager presently employs
or is able to engage sufficiently qualified and experienced personnel as required by this Agreement. Construction Manager’s personnel who perform Services are duly registered and/or licensed under the laws, rules and regulations of any authority having jurisdiction, if so required by such laws, rules and regulations to perform the Services.
10. Conflicts of Interest. Construction Manager has been furnished a copy of, and Construction
Manager has completed and provided to Owner prior to execution of this Agreement and in accordance with the requirements for the timely filing thereof under Chapter 176 of the Texas Local Government Code, true and complete answers to Owner’s Conflict of Interest Questionnaire, adopted June 29, 2007. Construction Manager agrees to update its responses to the Owner’s Conflict of Interest Questionnaire as required by Chapter 176 of the Texas Local Government Code, and Owner shall have the right at any time to require Construction Manager to complete and furnish to Owner a current Conflict of Interest Questionnaire form, which shall be completed and furnished to Owner promptly upon Owner’s written request, failing in which Owner may terminate this Agreement pursuant to Section XXV.2.A. Construction Manager represents that it has advised Owner in writing
of any past or present relationship or dealing with any third party, including competitors of Owner or Construction Manager, which could or could be perceived to impair or interfere with the Construction Manager’s exercise of its independent judgment and discretion in professionally and ethically rendering of Services for the sole benefit and enjoyment of Owner under this Agreement or which could cause Owner to change its evaluation of Construction Manager and the decision to enter into this Agreement with Construction Manager (“Conflict of Interest”). A Conflict of Interest shall also exist when, because of other undisclosed activities or relationships with third parties, Owner determines in its sole discretion that Construction Manager is unable to render impartial assistance, advice, or Services to Owner, or the Construction Manager's objectivity in performing the Services is or might be otherwise impaired, or when Construction Manager gains an unfair competitive advantage or receives undisclosed profits or benefits in addition to compensation for its performance of Services under this Agreement. Construction Manager shall at all times during the performance of this Agreement remain free of any obligation of any kind to any person other than Owner where such obligation may cause or require Construction Manager to compromise or otherwise be in breach of its obligations to Owner, including without limitation its obligations with respect to proprietary rights and confidentiality and conflicts of interests. Construction Manager has not undertaken, and during the period covered by this Agreement, Construction Manager shall not undertake any relationship with any person or entity that could give rise to such a Conflict of Interest without the prior written consent of Owner. Construction Manager shall immediately advise Owner of any relationship that may give rise to a Conflict of Interest during the term of this Agreement. If Owner becomes aware of any such relationships, through Construction Manager's disclosure or otherwise, Owner shall have the option to terminate this Agreement in whole or in part without further liability to Construction Manager.
11. Thorough and Careful Review of Construction Documents, Construction Schedule and other Contract Documents. The Construction Manager will carefully and timely review, and promptly call
to the attention of the Owner and Architect/Engineer, and request a resolution of, any aspect of the Construction Documents, Project Schedule and other Contract Documents, including any Drawings, Specifications, Product Data, plans, sketches, instructions, information, requirements, procedures, and other data supplied to the Construction Manager (by the Architect/Engineer, the Owner or any other member of the Project Team), which it regards in its opinion as unsuitable, improper, or inaccurate to accomplish the purposes for which such document or data are furnished. Construction Manager shall carefully and timely review and compare the Construction Documents, Construction Schedule and all other Contract Documents, and promptly call to the Architect/Engineer’s attention, and request a resolution of, any aspects thereof that Construction Manager regards in its opinion as inconsistent, unsuitable, improper, or inaccurate to accomplish the Work in accordance with the requirements of the Contract Documents. Notwithstanding the above, the Construction Manager shall not be responsible for design, except incidental designing/detailing as required by the Specifications for Shop Drawing purposes, or as required by specific agreement. The Construction Manager’s issuance of written advice in the form of a request for information to the Architect/Engineer concerning any issue of inconsistency, unsuitability, impropriety, or inaccuracy will not excuse Construction Manager from obtaining a resolution of such issues before proceeding with the Work unless Owner has confirmed in writing that it wishes the Construction Manager to proceed in accordance with the data as originally given, notwithstanding any contrary request for action to resolve such issues.
12. Title to Goods, Materials, Equipment and Work. The Construction Manager warrants that title to
all Work covered by an Application for Payment will pass to the Owner no later than the time of payment. The Construction Manager further warrants that upon submittal of its Application for Payment, all Work is and shall remain free and clear of liens, claims, security interests or encumbrances in favor of the Construction Manager, Construction Manager’s personnel, Subcontractors, Sub-Subcontractors and Suppliers, or other persons or entities who might otherwise have any claim by reason of having provided labor, materials and equipment relating to the Work.
13. Authority to Enter into Agreements; Legal Establishment of Business Entities. The
Construction Manager, and all Construction Manager’s personnel, Subcontractors, Sub- subcontractors, and Suppliers, with respect to their portions of the Work, are fully authorized to assume their contractual obligations to perform the same, and that each of them, with respect to its portion of the Work, is fully licensed, certified and authorized to perform the Work contemplated by the Contract Documents and any other Work performed on the Project, and will provide evidence of the same to Owner upon request. Neither the execution and delivery of this Agreement by Construction Manager nor the performance of its obligations hereunder will result in the violation of any provision, if a corporation, of its articles of incorporation or by-laws, if a limited liability company, of its articles of organization or regulations, or if a partnership, of any partnership agreement by which Construction Manager is bound, or any agreement, including a “Company Agreement” as defined under the applicable Texas Statutes, by which Construction Manager is bound, nor will it result in conflict with any order or decree of any court or governmental instrumentality relating to Construction Manager. Construction Manager and each of Construction Manager’s personnel, Subcontractors and Suppliers (i) if a corporation or limited liability company, is duly organized, validly existing and in good standing under the laws of the State of Texas, or a foreign corporation or limited liability company duly authorized and in good standing to conduct business in the State of Texas, having all necessary corporate power and having received all necessary corporate approvals required to execute and deliver their respective contracts (including this Agreement), and each of the individual signing such contracts (including this Agreement) has been duly authorized to act for and bind the entity for whom such signature is made; or (ii) if it is a joint venture, partnership, limited partnership, or limited liability partnership, then it has all necessary partnership power and has secured all necessary approvals to execute, deliver and perform all the obligations assumed under such contracts (including this Agreement) as such entity; and (iii) the individual executing this Agreement on behalf of Construction Manager, and the individual executing any Subcontract to assume any obligation under this Agreement, has been duly authorized to act for and bind Construction Manager or Subcontractor, as applicable.
14. Taxes and Federal Compliance. Construction Manager, whether Corporate, Partnership, or Sole Owner, must be current on its Bexar County Property Taxes. If commercial personal property is located in the jurisdiction, current renditions of these properties must be filed with the Chief Appraiser, as required by Chapter 22, Section 22.01, of the “TEXAS PROPERTY TAX CODE,” and Construction Manager must be current on all applicable ad valorem taxes owing to Owner. Construction Manager certifies it is not presently debarred, suspended for debarment, declared ineligible, or excluded from covered transactions by any Federal department or agency.
15. Compliance with Owner Published Policies and Procedures. Construction Manager shall
comply, and shall cause all of its employees and agents to comply, with Owner’s Travel Reimbursement Policy, incorporated herein as Exhibit 14.
16. Worksite Conditions. Construction Manager warrants and represents it has been provided
unrestricted access to the existing improvements and conditions at the Worksite. To the extent Owner has furnished any information related to the Worksite, Construction Manager acknowledges and accepts that such information may not be accurate and that Construction Manager is not entitled to rely upon same to determine the Worksite’s conditions or the accuracy of any grades, elevations, dimensions, underground utilities (both public and private), or locations shown in such information. Construction Manager represents it shall investigate all Worksite conditions and the general local conditions affecting the Work prior to submission of its GMP Proposal for such Work. The Construction Manager has relied and shall continue to rely solely upon its own investigation of the Worksite in preparing its GMP Proposal. Construction Manager shall not make or be entitled to claim any adjustment to the Project Schedule or the GMP arising from Worksite conditions actually encountered which differ from those that were or, in the exercise of reasonable diligence, could have been, anticipated. Construction Manager assumes
full and complete responsibility for any conditions pertaining to the Work, the Worksite or their surroundings and all risks in connection therewith, notwithstanding anything in any of the Contract Documents or in any representations, statements or information made or furnished by Owner or its representatives. With respect to the physical Work to be performed, Construction Manager’s warranty and representation of familiarity with and assumption of risks of conditions and constraints shall apply as of the time Construction Manager submits its GMP Proposal for such Work, as provided in Section XIV.1.B.
VII. Construction Manager’s Duties
The Construction Manager shall have and fulfill the duties set forth below. The Construction Manager’s duties shall not be diminished by reason of any approval by Owner or the Architect/Engineer, nor shall the Construction Manager be released from any liability by reason of such approvals, it being understood that the Owner at all times is ultimately relying upon the Construction Manager’s expertise, skill and knowledge in performing the Services and the Work required hereunder.
1. Duty to Control Cost Within the Construction Cost Limitation. The Construction Manager
shall exercise best efforts to manage, coordinate and collaborate with the Project Team to ensure that the total Cost of the Work plus all of the Construction Manager’s Services and Fees, shall in no event exceed the Construction Cost Limitation, as may be amended by the Owne